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THE RELINQUISHMENT OF EXTRATERRITORIAL JURISDICTION IN SIAM
On December 16, 1920, there was signed on behalf of the United States and Siam, a treaty revising the conventions theretofore existing between the two countries, as well as a protocol attached to and made a part of the treaty. In April, 1921, the Senate advised and consented to ratification. On May 6th, the President ratified the treaty. In many respects the annexed protocol embraces the most important and distinctive portion of the arrangement. Doubtless in Siamese opinion it is of vast significance; for it marks a definite achievement in the effort long in the making, to free Siam from the obligation to permit the exercise of extraterritorial jurisdiction by American authorities in its territory. This accomplishment has been in part the result of the protracted and unremitting labors of three distinguished Americans-Strobel, Westengard, and James—who in turn, for a period covering some twenty-five years, have striven successfully to place the institutions and judicial system of Siam on a plane such as to command the full respect of the outside world.
Article I of the protocol announces that the system of jurisdiction established in Siam for citizens of the United States, and the “privileges, exemptions, and immunities” now enjoyed by them as a part of or appurtenant to that system “shall absolutely cease and determine on the date of the exchange of ratifications, and that thereafter all citizens of the United States and persons, corporations, companies, and associations entitled to its protection in Siam shall be subject to the jurisdiction of the Siamese courts. Article II sets forth, however, a condition subsequent, which for the time being, modifies or restricts the full operation of the foregoing provisions. It is there declared that until the promulgation and putting into force of all the Siamese codes, namely, the Penal Code, the Civil and Commercial Codes, the Codes of Procedure, and the Law for Organization of Courts, “and for a period of five years thereafter, but no longer,” American diplomatic and consular officials in Siam, may, whenever they deem it proper to do so in the interest of justice, and by means of written requisitions addressed to the judges of courts in which such cases are pending in any Siamese court except the Supreme or Dika Court, demand the transfer of the particular case to themselves, in which an American citizen or a person, corporation, company, or association entitled to the protection of the United States is defendant or accused. Upon the transfer of a case to American authority for adjudication, the Siamese jurisdiction is to cease; and the case so evoked is to be disposed of by the diplomatic or consular official in accordance with the requirements of the appropriate laws of the United States. There is, however,
1 It should be borne in mind that the indebtedness of Siam to foreign counselors and jurists is not confined to those of American nationality. It is understood that English lawyers have rendered vast aid in the task confronting that country.
an important limitation in this regard. With respect to all matters coming within the scope of codes or laws of the Kingdom of Siam regularly promulgated and in force, of which the texts have been communicated to the American Legation in Bangkok, it is declared that the rights and liabilities of the parties shall be determined by Siamese law. That law is obviously to be applied by the American tribunal. For the purpose of trying appropriate cases and of executing judgments to be rendered therein, it is announced that the jurisdiction of the American diplomatic and consular officials in Siam is continued. It is also declared that should the United States perceive, within a reasonable time after the promulgation of the codes above specified, any objection thereto, the Siamese Government will endeavor to meet such objections.
According to Article III, appeals by persons and entities entitled to · American protection, from judgments of courts of first instance in cases
to which they may be parties, shall be adjudged by the Court of Appeal at Bangkok; and an appeal on a question of law shall lie from that tribunal to the Supreme or Dika Court. Again, such persons or entities who are parties defendant or accused in any case arising in the provinces, are to be permitted to apply for a change of venue, and should the court consider such change desirable, it is provided that the trial shall take place either at Bangkok or before the judge in whose court the case would be tried at Bangkok.
In order to prevent difficulties arising in the transfer of jurisdiction, Article IV makes specific and ample provision. Thus all cases in which action shall be taken subsequent to the date of the exchange of ratifications of the treaty are to be entered and decided in the Siamese courts, regardless of whether the cause arose before or after that date. Again, all cases pending before American diplomatic and consular officials on that date are to take their usual course before such officials until final disposition, the American jurisdiction remaining in full force for that purpose. In connection with any such case or with cases evoked by American officials for transfer to themselves, it is declared that the Siamese authorities shall upon American diplomatic or consular request, lend their assistance to all matters pertaining to the case.
It remains to be seen whether, should the treaty and protocol come into force through an exchange of ratifications, American diplomatic or consular authorities in Siam will deem it necessary to assert the right to evoke cases and thereby effect their transfer. It is not improbable that pending the promulgation of the Siamese Codes, or within the five-year period thereafter, there may be no strong disposition to substitute American for Siamese courts. It must be emphasized that the protocol contemplates normally adjudications concerning American citizens before Siamese tribunals, and a transfer therefrom only under the conditions specified, and which may not in fact arise. More important, however, is the definite agreement that upon the promulgation of all the Siamese codes specified in Article II, and after a definite period of time, Siam acquires fullest rights of jurisdiction over causes pertaining to Americans, and that the United States so agrees to an ultimate and complete relinquishment of extraterritorial jurisdiction.
The arrangement thus marks the recognition of a definite advance in the condition of Siam, and of one inconsistent with the long-continued maintenance of foreign courts on Siamese soil. It is gratifying that the United States should formally so reckon with these facts. Its policy in so doing is in harmony with the spirit manifested in one of its treaties with another oriental country, and evincing a readiness to aid and encourage the reform of the local judicial system with a view to bringing about the relinquishment of extraterritorial privileges. The effect of the present treaty and protocol upon the future contractual relations of Siam with other states is incalculable. The new arrangement must serve to inspire fresh negotiations contemplating equal concessions by European Powers. Upon China and certain other countries the influence of this new token of the progress of Siam, as well as of the coöperation of the United States, must be far-reaching. With President Harding's ratification of the compact, there is brought home to enlightened opinion in every land a fresh consciousness of the fact that the potentialities and aspirations of every country under every sun are unlimited, and normally, under fair guidance, may be productive of judicial institutions capable of meting out exact justice to resident aliens of any nationality, and, therefore, worthy of general respect.
CHARLES CHENEY HYDE.
THE TREATY BETWEEN COLOMBIA AND THE UNITED STATES On April 20, 1921, the Senate of the United States advised and consented to the ratification of the treaty between Colombia and the United States, concluded on April 6, 1914. The treaty was signed on behalf of the United States by Thaddeus Austin Thomson, then Minister of the United States to Colombia, and by six plenipotentiaries on behalf of Colombia, the principal one being Francisco José Urrutia, then Minister of Foreign Affairs.
The purpose of this treaty was, as stated in its preamble, “to remove all the misunderstandings growing out of the political events in Panama in November, 1903; to restore the cordial friendship that formerly characterized the relations between the two countries, and also to define and regulate their rights and interests in respect of the interoceanic canal, which the Government of the United States is constructing across the Isthmus of Panama.”
The purpose of the two countries has remained unchanged, and therefore the preamble of the original treaty was advised and consented to by the Senate, that body replacing “is constructing" by“has constructed,” inasmuch as the Canal, then in progress, has since been completed and opened to the commerce of the world. To effectuate the purposes, the sum of $25,000,000 gold was to be paid by the United States to Colombia “within six months after the exchange of the ratifications." This clause disappears, but the money remains. In the amended treaty, it is all to be paid in Washington. The sum of $5,000,000 is to be paid within six months after ratification, and from the date of the first payment the balance, that is to say, the sum of $20,000,000, is to be paid in four equal installments of $5,000,000 each. In the original treaty the money was to be paid in gold. In the amended treaty, it is to be paid in dollars, but it is believed that there can be no objection on the part of Colombia to receive the $25,000,000 even though it should not be in gold. This obligation appears in the second article of the amended treaty instead of the third of the original, but it will be equally agreeable to Colombia to have it appear in an earlier than in a later article.
The purpose of the treaty, however, was not merely to remove “the misunderstandings” between Colombia and the United States “growing out of the political events in Panama in November, 1903,” but also to remove, in so far as they could be removed, the misunderstandings between Colombia and Panama.
In the fourth article of the original treaty, Panama was to be recognized by Colombia as an independent nation and its boundaries defined. By the recognition of Panama as an independent nation, separate and distinct from Colombia, and the determination of the boundaries between the two, the two countries would be in a position to meet as equals and to arrange their business upon a footing of equality, as is the case with other nations. The United States, anxious to be helpful to each, agreed in the original fourth article and in consideration of this recognition on the part of Colombia, to take steps immediately after the exchange of ratifications to “obtain from the Government of Panama the despatch of a duly accredited agent to negotiate and conclude with the Government of Colombia a Treaty of Peace and Friendship with a view to bring about both the establishment of regular diplomatic relations between Colombia and Panama and the adjustment of all questions of pecuniary liability as between the two countries, in accordance with recognized principles of law and precedents.” This article is retained in the amended treaty without change, other than that its number is changed from four to three.
The second article of the original treaty, which becomes the first of the amended treaty, has a number of changes. The first is an addition which vests in the United States the title "entirely and absolutely” and "without any encumbrances or indemnities whatever” to the canal and the Panama Railroad. The canal is the property of the United States according to the treaty with Panama of November 18, 1903. Colombia was not a party to this treaty, but this clause recognizes the right which the United States obtained to the canal from Panama, through whose territory it passes. In like manner the railway belongs to the United States and in this clause Colombia recognizes this ownership and removes any cloud from that title, as far as Colombia is concerned.
The balance of Article I, originally Article II, of the Colombian treaty, confers upon Colombia the right to use the canal for the transportation of its troops, materials of war, and ships of war, without paying charges to the United States; the right to transport the products of its soil and industry, as well as its mails, free of duty other than what the United States would pay under like conditions; the right to use the railway between Ancon and Cristobal or any other railway when the canal is interrupted and closed to traffic, upon a footing of equality with the United States; and, finally, the right to transport at actual cost, which shall not exceed one-half of the freight levied upon similar products of the United States, “coal, petroleum and sea salt, being the products of Colombia, for Colombian consumption, passing from the Atlantic coast of Colombia to any Colombian port on the Pacific coast, and vice versa.”
Certainly, these are valuable privileges. They are concessions of a very generous nature, and they are in addition to the lump sum of twentyfive million dollars which the United States undertakes to hand over to Colombia in pursuance of its purpose, “to remove all the misunderstandings growing out of the political events in Panama in November, 1903."
The purpose of the United States in so doing, is expressed in actions, not words, and “actions," they say, “speak louder than words.” This, apparently, was the opinion of the Senate, which rejected Article I of the original treaty, conceived in the following language:
The Government of the United States of America, wishing to put at rest all controversies and differences with the Republic of Colombia arising out of the events from which the present situation on the Isthmus of Panama resulted, expresses, in its own name and in the name of the people of the United States, sincere regret that anything should have occurred to interrupt or to mar the relations of cordial friendship that had so long subsisted between the two nations.
The Government of the Republic of Colombia, in its own name and in the name of the Colombian people, accepts this declaration in the full assurance that every obstacle to the restoration of complete harmony between the two countries will thus disappear.
If this article had been inserted in the preamble, and had been followed by the material concessions stated in the first article of the revised treaty and the proffer of good offices to Colombia and Panama in the third, the treaty should, it is believed, have been ample, according to international usage, to restore friendly relations. The purpose expressed in the actual preamble, the material concessions, and the proffer of good offices, to which