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CHAPTER XXV

THE AWARD BY THE ARBITRATION TRIBUNAL OF 1899

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N the two preceding chapters, we traced the

Anglo-Venezuelan boundary dispute in Guayana

from its remote origin, early in the seventeenth century, to the date of the treaty of February 2, 1897, whereby the whole question was to be referred to a court of arbitration. It is now in order to review the result of the proceedings of that tribunal, as nounced in its final award of October 3, 1899, and to ascertain in how far its decision may be in accord with the conditions of the treaty, or warranted by the law and the facts in the case.

But first, in order to a clear understanding of the subject, let us briefly consider the unique character of the tribunal itself, and the conditions and limitations under which it entered upon its duties.

By the terms of the treaty, the tribunal was to be something of a novelty in the history of international affairs. It was not to be a commission composed of plenipotentiaries invested with diplomatic functions; nor was it to be an arbitral commission in the generally accepted sense. It was to be an international court of special judicature, composed of five jurists. 1 Two of these were to be chosen on the part of Great Britain, two on the part of Venezuela, and the fifth (who was to be president of the tribunal) was to be selected by these four, or, in the event of their failure to agree, by the King of Sweden. The two on the part of Great Britain were to be nominated by the Judicial Committee of Her Majesty's Privy Council; and the two on the part of Venezuela were to be nominated, one by the President of that Republic, and the other by the justices of the Supreme Court of the United States. 2

1 Art. ii. Tr. Feb. 2, 1897.

Those selected on the part of Great Britain were Baron Herschel and Sir Richard Hen. Collins, of Her Majesty's Supreme Court of Judicature; but the first named having died soon after his appointment, Lord Chief Justice Russell was appointed to fill the vacancy, as provided in the treaty.8 Those selected on the part of Venezuela were Chief Justice Fuller and Associate Justice Brewer of the Supreme Court of the United States. Each of the litigants was to be represented by an agent and by counsel.

As thus constituted, the tribunal was to have full and final jurisdiction of the case as a whole; and in order to a decision, the concurrent opinion of a majority of the judges was necessary. The high contract

* ing parties obligated themselves to consider such decision “a full, perfect, and final settlement of all of questions referred.” 5

The judges were to “investigate and ascertain the extent of the territories belonging to, or that might lawfully be claimed by the United Netherlands or by the Kingdom of Spain, respectively, at the time of the acquisition by Great Britain of the Colony of British Guiana," and to "determine the boundary line between the Colony of British Guiana and the United States

2 Ibid.

8 Ibid.

1 Art. ii. Tr. Feb. 2, 1897. 4 Art. v.

5 Arts. iii. iv. and xiii.

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of Venezuela."1 And in deciding the matters thus submitted, they were to "ascertain all the facts" in the case, and to be governed by certain rules laid down in the treaty; and, also, “by such principles of international law” (not inconsistent with those rules) as the judges might “deem applicable to the case.

These rules are three in number, marked “a,” “b,” and “c,” in the treaty, and are identical in terms with those in the original protocol.3 By the first, 4 “adverse holding or prescription during a period of fifty years” was “to make a good title." This clause was mandatory. It left to the judges no discretion in the premises. And it was certainly novel and unusual. Up to that time, all writers on international law who had advocated the application of the principle of prescription between nation and nation, had omitted to suggest any exact period of time within which title might be established by continuous material possession. All were agreed that prescription gave presumptive title only; that it was merely evidence of title and nothing more; that it neither created nor destroyed title. It created a presumption, equivalent to full proof, that good title existed, the origin of which had faded from memory. But it differed from full proof in this, namely, that while full proof was conclusive and final, prescription was conclusive only until it was met by counter-proof or by a stronger counter-presumption.

1 Arts. iii. and v. The word "the" was significantly substituted for “a” in the original draft of the protocol. 2 Art. iv.

Supra, p. 304. 4 Marked “a” in the treaty.

6 Not merely to create a presumption of title; thus indicating a new departure in the doctrine of prescription.

6 Wharton, Dig. Int. Law, vol. i. $ 2; Phillimore, vol. i.; Vattel, Bk. i.; Wheaton's Elements; Twiss, Law of Nations; Lawrence, Law of Nations, etc.

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By the second clause of Rule "a,” the judges were authorized, at their discretion, to “deem exclusive political control of a district” for fifty years, as well as actual settlement during that period, "sufficient to constitute adverse holding, or to make 1 title by prescription." This clause, however, seems to have been

' inserted merely for the purpose of greater, clearness and caution. Actual settlement, continuously maintained for fifty years, would, of course, be such an “adverse holding” as would establish good title under the plain terms of the first clause of the rule, actual “settlement” being understood as fixed residence, with intention, sufficiently made known, of always remaining there. But both parties claimed to have held, or to have exercised exclusive political control over, large tracts of territory beyond their respective settlements, inhabited or roamed over only by savage tribes; and it was in consideration of this class of conflicting claims that the second clause in Rule “a” was inserted. 3

By the second Rule, marked "b" in the treaty, the judges were authorized to "recognize and give effect to rights and claims resting on any other grounds whatever valid according to international law, and on any principle of international law” (not inconsistent with Rule "a"), which they might "deem applicable to the

In other words, the whole scheme of the treaty, barring the single exception in favor of the "fifty years'" clause, was that the boundary line should be determined, not as a compromise or as a matter of expediency, but as a matter of right, and in accordance

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case.

1 The word "make" is again employed in the treaty.
2 Vattel, Law of Nations, Bk. i., chap. xix. § 218.
8 Protocol and correspondence of January, 1897.
4 Art. iv.

with the principles of public law and the evidence submitted.

There were, also, certain private interests involved. During the fifteen or twenty years next preceding the date of the treaty, British subjects had overpassed the old de facto boundary line of 1768, and had established what were claimed to be settlements there. In most instances, these “settlements” were probably little more than mining camps or police stations, and therefore lacked the element of permanency. In any case, they were too recent in origin to give title by prescription under Rule “a,” even if other requisites had not been wanting. Nor could they come within the scope of that familiar rule of law which sometimes makes binding on the country all necessary administrative acts performed by the party in possession. Still, it was thought that, although trespassers from the beginning, and their presence a violation of the diplomatic agreement of 1850,2 these alleged "settlers " might have acquired certain equities for improvements or betterments which ought to be recognized, quite independently of the question of boundary. So, to provide for these possible private interests, the third Rule, marked "c" in the treaty, was agreed upon. By that Rule, if, "in determining the boundary line, territory of one party should be found to have been, at the date of the treaty, “in the occupation of the subjects or citizens of the other," the judges were authorized to give "such effect to such occupation as reason, justice, and the principles of international law and the equities of the case" might in their opinion require.3

Such was the character of the tribunal; such the

1 See supra, chap. xxiii. pp. 273, 275; chap. xxiv. pp. 288, 292. 2 See supra, chaps. xxiii. and xxiv. 8 Art. iv. Rule “ c."

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