INTERNATIONAL LAW
CHIEFLY AS INTERPRETED AND APPLIED BY THE UNITED STATES
BY
CHARLES CHENEY HYDE
HAMILTON FISH PROFFESOR OF INTERNATIONAL LAW AND DIPLOMACY,
COLUMBIA UNIVERSITY; FORMERLY THE SOLICITOR FOR THE DEPARTMENT OF STATE OF THE UNITED STATES OF AMERICA; ASSOCIATE OF THE INSTITUTE OF INTERNATIONAL LAW
Int Law Settlement Tribunals (pdf version)
§ 309 A. Substitutes for International Adjudication. The United States as a claimant State has at times within recent years found it expedient to avoid contentious litigation before an international tribunal in large groups of cases where the basis of liability was apparent, and to endeavor by agreement with the respondent State to fix a rule or test by reference to which cases within such groups should be adjusted. This procedure was exemplified by arrangements developed by the American and German agents before the Mixed Claims Commission under the agreement of August 10, 1922,[1]and resulted in awards of a non-Iitigious character in harmony therewith.[2] This avoidance of conflict even before a tribunal authorized to adjudicate has borne fruit. It has encouraged the conclusion of agreements between the United States and other countries calling for the joint examination of claims and an endeavor to effect agreement through the joint efforts of competent agents as to the treatment to be applied to certain categories of claims, such, for example, as those enumerated in an existing claims convention, and confining arbitration to cases where such efforts might prove abortive.[3] It is the endeavor to agree to effect direct adjustment which distinguishes such arrangements from those which mark an effort to agree to have recourse to contentious litigation and which are likely to necessitate a belated award by a neutral umpire.[4]
Again, effort is increasingly made to obtain agreement by a respondent State to pay a fixed sum (possibly in installments) to cover all claims within a specified category, the amount being measured by the financial potentialities of the respondent State, the volume and condition of claims preferred against it by foreign powers generally, and other kindred considerations[5]. In the event of agreement on such a basis, the United States undertakes by appropriate means, such as through the medium of a domestic claims commission, to make equitable distribution to American claimants.[6] By a convention with Mexico signed at Washington on November 19, 1941, the Government of the United States agreed to accept the sum of $40,000,000.00 as the balance due from that of Mexico in full settlement of large groups of specified claims, certain others (set forth in Article II) not being extinguished.[7] The plan superseded the stipulations of the General Claims Convention signed on September 8, 1923, and those of the Protocol in relation to it, signed on April 24, 1934.[8]
“By an exchange of notes dated December 24, 1923, the Government of the United States and the Government of Turkey entered into an agreement which provided that a Commission should be designated to determine solutions which should be given to claims outstanding between the two Governments. A supplementary agreement was concluded by an exchange of notes dated February 17, 1927. As a result of subsequent exchanges of communications, the two Governments agreed, with a view to the amiable, expeditious and economic adjustment of the claims, that the Commission should in the first instance undertake a summary examination of the cases for the purpose of recommending to the two Governments a lump sum settlement.”[9] Following negotiations begun in 1933 between commissioners of the two Governments, there came a Turkish offer of settlement which was rejected by the American Government. On October 13, 1934, commissioners signed an agreement, “recommending that the Government of Turkey should pay to the Government of the United States a sum of $1,300,000,”[10] and this agreement was confirmed by a formal arrangement between the two Governments, of October 25, 1934, which was negotiated and signed in behalf of the United States by Mr. Fred K. Nielsen.[11] Pursuant to Acts of Congress,[12] examination was made of the claims against Turkey to determine the merits of each case; and opinions were duly prepared thereon, in order to enable the Government of the United States to make proper distribution of the sum which the Government of Turkey was obligated to pay.[13] Inasmuch as the merits of the claims of American citizens were to be determined “in accordance with rules and principles of international law controlling as to questions with respect to international responsibility on the part of Turkey,”[14] the several opinions were, accordingly, enunciatory of what those rules and principles were deemed to ordain.[15]
The tendency to seek agreement as to bases of responsibility rather than bases of contentious litigation, as well as the tendency also to seek and accept what delinquent States find it possible under the exigencies confronting them to agree to pay, in preference to struggles to obtain favorable arbitral awards of which the ultimate payment may be problematical, is the significant feature of contemporaneous negotiations. It shows the readiness of States, and notably of the United States as a typical claimant, to take full cognizance of realities that mark the vicissitudes in the lives of respondent countries. If their fiscal burden is thus lightened, their acknowledgment of responsibility for the consequences of internationally illegal conduct is at least in some cases accentuated.
[1] U. S. Treaty Vol. III, 2601.
[2] See Report of Robert W. Bonynge, Agent of the United States before the Mixed Claims Commission, United States and Germany, Dec. 31, 1934, especially in relation to agreement for the settlement of claims of American nationals against the German Government arising out of mark balances in German banks and private debts owing in marks by German nationals, and which received the approval of the Commission, pp. 83-96.
[3] See protocol with exchange of notes relating thereto, between the United States and Mexico, of April 24, 1934, relative to claims presented to the General Claims Commission, established by the convention of Sept, 8, 1923, U. S. Executive Agreement Scries, No. 57, also contained in U. S. Treaty Vol. IV, 4489.
See, also, arrangement between the United States and Spain, of Aug. 24, 1927, May 13, 1929, and June 20, 1929, for the informal consideration by representatives to be appointed by the two States of all outstanding diplomatic claims between them, U. S. Executive Agreement Scries) No. 18.
[4] Yet the joint endeavor to appraise and agree to the treatment of particular categories of claims may not always prove completely successful. The operation of the scheme contemplated by the protocol with Mexico of April 24, 1934, in relation to claims pending before the General Claims Commission was perhaps an instance.
[5] See, for example, convention between the United States and Mexico, of April 24, 1934. covering the en bloc settlement of the claims presented by the Government of the United States to the Commission established by the special claims convention concluded Sept. 10, 1923, U. S. Treaty Vol. IV, 4487.
[6] See, for example, Act of June 19, 1934, to establish a commission for the settlement of the claims comprehended within the terms of the convention between the United States and Mexico, concluded April 24, 1934, 48 Stat. 1021, 1041-1042.
[7] U. S. Treaty Scries, No. 980. Against the sum mentioned there was credited $3,000,000.00, representing payments made prior to the signing of the convention pursuant to an agreement in relation to agrarian claims in November, 1938, and also an additional $3,000,000.00 to be paid on the date of the exchange of ratifications. Art. IV.
[8] Art. III. For the domestic allocation of funds received from Mexico, appropriate legislation by the Congress was to follow in 1942.
[9] Nielsen’s American-Turkish Claims Settlement, General Report, 7.
[10] Id., Annex I, 45.
[11] Id., Annex II, 47, U. S. Executive Agreement Series No. 73. The payment of the sum agreed upon was to be made in thirteen annual installments of $100,000.
[12] Act of March 22, 1935, 49 Stat. 07, 70; Act of June 22, 193G, 49 Stat. 1597, 1033.
[13] It is understood that the several opinions were prepared by Mr. Nielsen.
[14] Case of Jehu Eborn Archbell, Nielsen’s American-Turkish Claims Settlement, Opinions, 151.
[15] See id., General Report, Classification of Cases, 22-23.
