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But the incident indicates the importance of clear wording of initial treaties.
Then as to Rule (c) the Attorney-General remarked : 'If I may be perfectly frank, I have a difficulty in seeing what the limits of the powers of the Tribunal under Rule (c) are.' If the powers were to be unlimited, there was no use in the rule as expressed. If they were to be limited, surely the rule should have stated the limits. It may be suggested that the rule gave no hint as to compensation in money, if the Tribunal were to act partly in a diplomatic and partly in a strict legal character, however much the equity of the case might lead to such a decision as the most practical and just. Such omission might tend to throw the Tribunal into a strict legal decision which might be actually inequitable, and which possibly the judges in this case evaded by giving Venezuela the barren consolation of Barima Point, with the condition that the waterway on the Barima and Amakuru Rivers should be perfectly open. Nobody would, or perhaps could, land on many portions of this Venezuelan territory. but the gift of a few thousand pounds for its possession by Great Britain would not have hurt Great Britain, and inight have practically aided in the soothing of Venezuela.
Articles VI., VII., and VIII. of the Treaty of Washington refer to the preliminary written documents, a Case, Countercase, and Argument to be presented on each side prior to the commencement of the oral hearing. The printed Argument was to show the points and refer to the evidence on which each Government relied. Eight months were given for the Case, four months for the Counter-case, and three months for the Arguments. Any of these periods might be enlarged, and they were, as a fact, all enlarged by the arbitrators, by the allowance of thirty days additional. The establishment of such a length of time before the oral hearing is able to take place undoubtedly gives opportunity and also certain discretion to the Tribunal for the delay of a hearing or a decision until all acute phases of sentiment have passed. But the amount of material required by this method is difficult to produce, variable in quality, and liable to involve repetition. One, at least, of these steps could be omitted, since any Counter-case could well be set forth in the Argument, without the necessity of delay or so many written documents prior to the oral hearing.
Before leaving the treaty a last comment may be made. Article XII. provided that each Government should pay its own agent and counsel, and 'the arbitrators appointed by
. it or in its behalf.' In some respects this article is not unreasonable, but it may be suggested that the semblance of payment by one side to a judge is derogatory to the dignity and absolute integrity of the judge. There should be no opening for a feeling that the best should be done for the party who pays and from whom payment is received, however slight that feeling may be. It might be better that the money for the judge should be placed in a joint fund, and a nonentity be the conduit through whom the agreed salary for services rendered is to be paid, .
It is interesting to note the tactics shown by either side. Great Britain put her strength into the Case, the first document published and the first which the arbitrators would read. Venezuela waited, and tentatively suggested her Case. In the second series of documents Great Britain replied, and adhering strictly to the Venezuelan Case, categorically and in terse language almost absolutely contradicted the Venezuelan suggestions, while Venezuela criticised the British Case, but still deferred her real answer. When the Arguments were published, however, Venezuela put forward all her strength, and in two long volumes attacked the British Case and Counter-case, alleged admissions and discrepancies, advanced long legal disquisitions involving reference to many cases, and claimed judgement. Great Britain, on the contrary, shortly referred to the documents on which she specially relied, and very briefly stated her main contentions. When the oral hearing commenced, the Attorney-General produced, as it were, a new story by the detail with which he was able to illustrate his contentions. Venezuela, on tbe contrary, had already relied upon writing, and not speech, for the developement of her main contentions, and Mr. Mallet-Prevost and Mr. Soley were obliged to resort to minute criticism of the British position without upsetting the basis of the British Case. Sir Robert Reid and Mr. Askwith stuck closely to the views put forward by Venezuela in the Venezuelan written Argument, and the contentions, so far as they had been developed in speech by counsel, and tersely urged reasons, legal and historical, against them, which the AttorneyGeneral effectively followed up in his reply. When General Tracy at a late period advanced law on behalf of Venezuela, and General Harrison devoted himself at length to the basis and groundwork of the Venezuelan contention, their propositions had all been anticipated and the case practically settled. However long their counsel might speak--and
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they occupied thirty-one days--the points against them were clear long before the end, the written Argument, which they could only repeat in slightly varied form, had been shattered, and the minds of the members of the Tribunal on matters of principle evidently made up. Great Britain, in fact, at the very outset had clearly laid down her propositions. Those propositions, as soon as the oral hearing began, were elaborated in the first speech. In the second and third speeches the propositions of Venezuela were answered and anticipated. Consequently, Great Britain was always in front, because Venezuela waited for the very last written document to produce any case, and for the last speeches to support that case orally. Criticism without an affirmative case is apt to pall; the affirmative case, too long delayed, comes to jaded minds and tired ears.
The omissions are far more important than the commissions of the treaty, and it may be doubted whether any matters before the Tribunal, however weighty they might be, will prove so important for the conduct of future arbitrations as the manner in which the subject of diplomatic correspondence was treated. From 1838 to 1898 a continual stream of diplomatic proposals had flowed backwards and forwards between Venezuela and Great Britain. Proposals of compromise, proposals of cession of territory, demands for this, that, and the other, had been freely discussed by the two countries. Until à recent date the idea of a legal arbitration and close scrutiny of these letters did not become a possibility present to the minds of the statesmen dictating them. Why was a proposal for settlement, prompted possibly by generosity, to be taken against the nation making it? The attitude taken up by Great Britain was speedily shown. In their written Argument counsel for Great Britain said:
The proposals which have from time to time bern made in the diplomatic correspondence for an adjustment of the difference between Great Britain and Venezuela should not be taken into consideration by the arbiurators in coming to a decision upon the boundary line. They do not constitute any admission of right on the one side or the other; but were put forward as suggested adjustments or compromises between the two Governments, in which claims of right were not insisted upon. It would tend to prevent any nation making proposal-, for the purpose of avoiding either war or the necessity of arbitration, if such proposals, in the event of arbitration, could be used against the Government by which they had been made.' . This statement was very moderate, but in view of the enormous tracts of territory now assigned to Great Britain as a right, but from time to time offered to Venezuela by British ministers, it is difficult to see how a formula more stringent could bave been claimed. Th9 Attorney-General endorsed the statement on the thirteenth day with the following grave words:
I say it with all seriousness, that if a country is to expose itself to the kind of criticism which has been addressed to the conduct of Great Britain in this Argument, in respect of entering into negotiations with a view to a settlement, and then in the subsequent arbitration those proposals are again criticised in the way that they are criticised, it will not only prevent diplomatic negotiations, but it will be a death-blow tɔ arbitration, because no nation dare negotiat if those proposals are going to be subjected to the kind of criticism that they are subjected to' on this occasion.' .
The words of the Attorney-General sufficiently indicate the suggestions of Venezuela. The proposals of British ministers were treated as admissions. The line tentatively proposed by Lord Palmerston as a basis for survey was said to be the real British line. Lord Aberdeen's line was claimed as an extension. Lord Granville and Lord Rosebery were supposed to have extended the line further, and Lord Salisbury was held up as the supreme culprit.
Every boundary line proposed by any British minister had been indignantly refused. Diplomatic negotiations had been broken off, and yet the first line surveyed, with slight modifications only, is found to be the line of right after most exhaustive inquiry. Whether or not these diplomatic offers iniluenced the minds of the judges the secret history of their meetings could alone reveal. It is to be hoped that they did not enter into their discussions, because the subject is of very grave importance. If letters written sixty years ago, under circumstances or pressure quite unknown to men of the present generation, are to be subjected to minute legal criticism, and, under a perfectly different state of affairs, are to be brought forward for consideration as if they were written yesterday, every pation must beware of arbitration and most minutely review every letter of every minister bearing upon the point at issue before they can consent to hazard the position of their subjects or the extent of their territory to any Arbitral Tribunal. A safety valve may be found in explicit directions to the Tribunal, but such directions were wanting in the Treaty of Washington.
These remarks apply to the open diplomatic correspondence
produced by either party, but a further consideration arises with regard to documents which are not produced, but which may be known to exist, or may be even alluded to in the correspondence actually produced. A striking instance occurred in this case, and the decision upon it is likely to form an important precedent. The facts appear to be briefly as follows. After Schomburgk had proposed his line, a long discussion arose whether it ought to be claimed or not, and Sir Henry Light, the Governor of British Guiana, argued in favour of it. He adduced his reasons in several letters, which were produced; but one of his letters was not produced, and yet was known to exist, because allusion was made to it by a later Governor in 1850 as the confidential despatch of Governor Light sent to Lord Aberdeen on March 25, 1842. As this confidential despatch was not produced by Great Britain, counsel for Venezuela claimed that the inference must be drawn that the despatch induced Lord Aberdeen, acting for the British Government, to propose the line of the Moruka River close to the Essequibo, instead of the Amakuru River close to the Orinoco, although Governor Light in his open letters supported the Schomburgk line.
In reply to the Chief Justice of the United States, who called attention to the absence of the document, Sir Robert Reid subsequently said :
* Documents which relate to or prove facts, or give an opportunity of forming an opinion on questions of title, we have produced, and think it is right for nations to produce, but I doubt if your Honour would consider upon reflection that an international arbi:ration involves the production of State communications relating to high policy as between the central Government of the country and its administrators in distant parts?
This view did not apparently satisfy all the members of the Tribunal. Three days afterwards the President stated that some of the members of the Tribunal desired to see the confidential despatch. The answer of the AttorneyGeneral was explicit--an absolute refusal.
"I state to the Tribunal that, having looked at the document, which we have carefully considered, it is one which I decline to produce.
'If it is supposed that documents of this character, of which there exist large numbers in every Foreign Office and in the Chanceries of every Embassy, can be called for, if inferences of fact are to be drawn against a country because of the justifiable claim of privilege made upon the responsibility of those who represent the country, arbitration would, I am sure, become impossible. Therefore I claim privilege