Слике страница

omment, and the the Capitulationogation or rel

extraterritorial jurisdiction the United States has in Turkey; but, as previously said, whether Turkey has the right to abrogate, without the consent of the United States, such extraterritorial rights as the United States may possess in the Ottoman Empire. Admitting that the exercise of these rights is obnoxious to Turkey, the question is, what is the proper method of securing their abrogation or relinquishment?

The question of the Capitulations is too complicated for an editorial comment, and the reader is referred to the excellent little book on the subject, entitled Foreigners in Turkey: their Juridical Status, published by Mr. Philip Marshall Brown, Assistant Professor of International Law and Diplomacy in Princeton University.

A judicial statement of the origin and nature of the Capitulations in general and the rights of the United States in particular will be found in the case of Dainese v. Hale, 91 U.S. Reports, 13 (1875), and a much more elaborate discussion in Dainese v. The United States, 15 Court of Claims Reports, 64 (1879). From this latter case two paragraphs are quoted:

The "usages of the Franks” begin in what are known in international law as "the capitulations,” granting rights of exterritoriality to Christians residing or traveling in Mohammedan countries. Some ingenious writers attempt to trace these capitulations far back of the capture of Constantinople in 1453 by the Turks. (1 FéraudGiraud, Juridiction Française dans les Echelles, 29 et seq.) They are undoubtedly rooted in the radical distinction between Mohammedanism, which acknowledges the Koran as the only source of human legislation and the only law for the government of human affairs, and the western systems of jurisprudence, which are animated by the equitable and philosophical principles of Roman law and Christian civilization. But their accepted foundation in international law is in the treaty made with the French in 1535, which guaranteed that French consuls and ministers might hear and determine civil and criminal causes between Frenchmen without the interference of a Cadi or åny other person. (1 De Testa, 16.) After this treaty the French took under their protection persons of other nationalities not represented by consuls (2 Féraud-Giraud, 76), and hence the generic name of "Franks” was given to all participants in the privileges, and has been preserved in the laws, treaties, and public documents of the United States. (8 Stat. L., 409; 12 Stat. L., 76, sec. 21; 7 Op. Attyg. Gen., 568.)

Other nations followed the example thus set by the French, as, for instance, the English in 1675 (Brit. & For. St. Pap., 1812–'14, Part I, 750); the Two Sicilies in 1740 (1 Wenckius, 522); Spain in 1782 (3 Martin's Rec., 2d ed., 405); and the United States in 1830 (8 Stat. L., 408). All writers agree that by these and other similar capitulations a usage was established that Franks, being in Turkey, whether domiciled or temporarily, should be under the jurisdiction, civil and criminal, of their respective ministers and consuls. This usage, springing thus not only out of the capitulations, but out of the “very nature of Mohammedanism" (3 Phil., preface, iv), became a

part of the international law of Europe (note to Spanish treaty cited above; 1 Guide Dip., sec. 75; Wheat. El., Lawrence's ed. of 1863, 219-'22, Dana's ed., sec. 110; 2 Phil., sec. 273; 1 Vattel, Pradier Fodéré ed., 625 n.; Bluntschli, Dr. Int. Cod., sec. 269; Calvo, Dr. Int., sec. 495).

In 1856, as a consequence of the Crimean War, the Ottoman Empire was formally admitted into the society of nations, and it has been a source of embarrassment and of annoyance to Turkey that the Powers have not been willing to recognize its right to be master in its own house, although it has since this period been recognized as a member of the society of nations. The Turkish Government has evidently taken advantage of the disordered state of Europe to abrogate extraterritorial jurisdiction, in the belief that both the Triple Alliance--if Italy is still to be considered a member, and the Triple Entente would be willing to pay this price for Turkish neutrality, and that it could afford to take its chances with the other Powers. It has a precedent for its action at this time in the abrogation by Russia during the Franco-Prussian war of the clause of the Treaty of Paris, which forbade Russian warships in the Black Sea. It appears, however, that the Triple Alliance, composed of Germany, Austria-Hungary and Italy, and the Triple Entente, composed of France, Great Britain and Russia, have protested against the abrogation of the Capitulations, and that the United States, as appears from the following paraphrase of cablegram to the American Ambassador at Constantinople, given to the press, has likewise protested:

You will bring to the attention of the Ottoman Government that the Government. of the United States does not acquiesce in the endeavor of the Imperial Government. to set aside the Capitulations.

Furthermore, this government does not recognize that the Ottoman Government. has a right to abrogate the Capitulations, or that its action to this end, being unilateral, can have any effect upon the rights enjoyed under the Capitulatory conventions.

You will further state that the United States reserves for the present the discus. sion of the grounds upon which its refusal to acquiesce in the action of the Ottoman, Government is based, and also reserves the right to make further representations in this matter at a later date.

By the treaty of 1830 (Articles 4 and 7), by the agreement of 1874 concerning realty, and by the favored-nation clause the United States obtained certain rights within Turkey, which it is not necessary to discuss at present, for the action of the Turkish Government deprives the United States, not merely of some or other of these rights, but of its extraterritorial jurisdiction in its entirety. What rights the United States may have has been the subject of much discussion, and a clear

determination of them has not been reached. They will doubtless be further discussed in the future.

The method employed by Turkey to denounce, upon its own initiative, extraterritorial jurisdiction, where the United States possessed it, whether by express treaty, by custom or by favored-nation clause, is contrary to the action of other countries in which extraterritorial rights have been claimed and exercised. The traditional policy of the United States has been to make its agreement to renounce extraterritoriality depend upon reforms to be accomplished in the respective countries, and when these reforms have been instituted and the results have been found or are considered satisfactory by the United States, then, and not till then has the United States renounced its extraterritoriality. See the treaty with Korea of 1882 (Art. 4), treaty with Japan of 1894 (Art. 18), treaty with China of 1903 (Art. 15), and the process of abrogation of extraterritoriality now in progress in Siam. In other cases the renunciation of extraterritoriality has not taken place until the native laws and tribunals have been superseded by those of a civilized country which has assumed a protectorate. Reference is made to the abrogation of extraterritoriality in Madagascar, Morocco, Tunis, Zanzibar, and the leased territories in China. In all these cases, however, the relinquishment of extraterritoriality has been accomplished with the consent, often expressed in a formal treaty, and as a voluntary act of the United States.

THE BRYAN PEACE TREATIES In the July number of the JOURNAL' an editorial comment was devoted to Mr. Bryan's peace plan, and the treaty between the Netherlands and the United States was taken as the representative of the group, and its terms analyzed in detail. On August 13, 1914, the Senate advised and consented to the ratification of eighteen of the twenty treaties which had up to that time been submitted to it. The treaties with Panama and Santo Domingo were reserved for further consideration, as the relations between Panama and the United States are of a peculiar character, and the situation in Santo Domingo was far from satisfactory, owing to a revolution which was then in progress. The treaty with the Netherlands was very carefully considered by the Senate and a test vote was taken upon it. Upon its acceptance, the others were advised and consented to as a matter of course. Mr. Bryan's plan of communicating in advance with the Senate Committee on Foreign Relations, laying his plans before

1 Page 565.

its members, and receiving their approval, has worked admirably and shows that co-operation between the Senate Committee and the Secretary of State is both possible and profitable, if only the Secretary of State takes the members of the Committee into his confidence.

Mr. Bryan, however, has not been content to negotiate treaties with some of the nations. He wishes, on the contrary, to secure agreements of a similar, if not an identical, kind with all the nations that believe in arbitration. On September 15th he had the very good pleasure to sign treaties of this kind with China, Spain, France, and Great Britain. After the signing of these treaties, which will undoubtedly be advised and consented to by the Senate, Mr. Bryan prepared the following statement, which the JOURNAL is able to print through his courtesy:

The signing of the four treaties with Great Britain, France, Spain and China bring under treaty obligations more than nine hundred millions of people. These, when added to the population of the United States and the population of the twenty-two countries with which similar treaties have heretofore been signed, brings under the influence of these treaties considerably more than two-thirds of the inhabitants of the globe. As these treaties all provide for investigation of all matters in dispute before any declaration of war or commencement of hostilities, it is believed that they will make armed conflict between the contracting nations almost, if not entirely, impossible. This government is gratified to take this long step in the direction of peace and is not only willing, but anxious to make similar treaties with all other nations, large and small. Immediately upon the signing of these treaties, telegrams were sent to the government's representatives in Germany, Russia, Austria and Belgium, communicating the fact of the signing of these treaties and expressing a desire to sign similar treaties with these countries, all of which have endorsed the principle embodied in the plan.

GERMANY AND THE NEUTRALITY OF BELGIUM The war, it would seem, has barely begun, and yet there are charges and countercharges of the violation of international agreements and of the unwritten laws of humanity. People in an excited state of mind readily believe charges without weighing, as in a balance, the elements of proof, upon which the truth or falsehood of the charges rests, and for the sake of our common humanity it is to be hoped that the proofs will not be forthcoming. The Journal believes it unwise either to enumerate the charges or to attempt to comment upon them, reserving the right at some future time to consider them when the facts are known upon which judgment should be based. It is, however, proper to advert to one charge: namely, the violation of the neutrality of Belgium and of Luxemburg, of which Germany is accused.

There are several documents which should be considered in this connection: (1) the London conventions of 1831 and 1839 concerning the independence and neutrality of Eelgium; (2) the accession of the German Confederation to the London convention of 1839; (3) the London convention of 1867 concerning the neutrality of Luxemburg; (4) the treaties of 1870 concerning the neutrality of Belgium between Great Britain and Prussia, and Great Britain and France; (5) the convention respecting the rights and duties of neutral Powers and persons in case of war on land adopted by the Second Hague Peace Conference of 1907.

In 1830, Belgium, which had been united with Holland by the Congress of Vienna, to form the Kingdom of the Netherlands, revolted; and, on November 15, 1831, Great Britain, Austria, France, Prussia and Russia, on the one hand, and Belgium, on the other, entered into a treaty of which the provisions relating to neutrality are as follows:

Belgium, within the limits specified * * * shall form an independent and perpetually neutral state. It shall be bound to observe such neutrality towards all other states. (Art. VII.)

The courts of Great Britain, Austria, France, Prussia, and Russia guarantee to His Majesty the King of the Belgians the execution of all the preceding articles. (Art. XXV.) The King of the Netherlands was unwilling at this time to recognize the independence of Belgium, but he finally did so by a treaty signed with Belgium on April 19, 1839; and in a series of treaties of the same date, to which Holland and Belgium were parties, the independence of Belgium was recognized, its neutrality likewise recognized, and the execution of the provisions of the treaties placed under the guaranty of the great Powers. Thus to the treaty of April 19, 1839, the articles of the treaty between Belgium and the Netherlands are annexed, and “are considered as having the same force and validity as if they were textually inserted in the present Act,” and “they are thus placed under the guarantee of their said Majesties." Article VII of the treaty of 1831 reappears as Article VII of the new treaty, and is thus guaranteed. Articles I to VII, inclusive, of the treaty of April 19, 1839, were on the same day adhered to by 'the German Confederation, and this adherence was formally accepted by Great Britain, Austria, Belgium, France, the Netherlands, Prussia and Russia. Article VII guaranteeing the independence and neutrality of Belgium was thus confirmed, not only by the five great Powers, but by all of the German States.

The attempt of Napoleon III, Emperor of the French, to obtain the

« ПретходнаНастави »