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On the other hand the contention is that the line should run by the Sixaola passing the entrance of the Yorquin to a point where the Tarire is attained and then follow that river to its source in the Cordilleras and thence by a line to the point “beyond Cerro Pando.” This contention rests upon the assumption that the Sixaolo and Tarire Rivers are shown to be really one and the same, although designated by different names. It cannot be denied that the direction of the boundary river, if the Sixaola-Tarire be selected, would be wholly at variance with the trend of the river boundary contemplated from the beginning and would project a line of boundary into territory over which the authority of Costa Rica was never questioned and thus give to Panama what she had never claimed. While, on the contrary, the line of the Sixaola-Yorquin, if followed, would in substance conform in its course and direction with that which had been recognized as the direction of the boundary line from the beginning and had been virtually treated as not the subject matter of dispute up to and during the proceedings had under the previous treaty. And no reason is afforded for departing from the river line thus shown to be the boundary line within the dispute between the parties by suggesting that some other river line would most comport with the interests of the two governments and best subserve the purpose of a boundary. To admit such considerations would in substance but be indulging in views of public policy and public interest which would lead the mind away from the fundamental proposition which is here controlling, that is, the execution of the duty of arbitration which calls for judgment as to a dispute between the parties and affords no room for the application of discretion beyond the limit which that consideration necessarily imposes. Discretion or compromise or adjustment, however cogent might be the reasons which would lead the mind beyond the domain of rightful power, and however much they might control if excess of authority could be indulged in, can find no place in the discharge of the duty to arbitrate a matter in dispute according to the submission and to go no further. No more fatal blow could be struck at the possibility of arbitration for adjusting international disputes than to take from the submission of such disputes the element of security arising. from the restrictions just indicated. Under these circumstances, since the duty here is not to elucidate and pass upon mere abstract questions of geography, nor to substitute mere expediency for judgment, but to determine what was the river claimed as the boundary by Colombia, declared by her to be the boundary for so many years, to which she asserted rights and which virtually was claimed to be the boundary upon which she relied prior to the entry into the previous treaty for arbitration and in the proceedings under that treaty, it is plain that the SixaolaYorquin is the line which should take the place of the line from Punta Mona along the counterfort of the Cordilleras to the point “beyond Cerro Pando,” as declared in the previous award.
In framing the award and coming to particularly specify the new line there may arise some difficulty because of the absence of precise geographical data as to the situation at the headwaters of the Yorquin River and therefore of the considerations which should control the drawing of the line from such headwaters to the Cordilleras. In the argument of this case Costa Rica stated a formal decree which it deemed should be entered upon the hypothesis that the award here made should be against the mountain line and in favor of the Sixaola-Yorquin line, and no objection to the form of such proposed decree has been made by Panama. Following the line to the headwaters of the Yorquin, the proposed decree from thence directs a stated line to the Cordilleras. This line rests upon the assumption that the headwaters of the Yorquin lie in the region of the northern slope of the northern watershed of a river known as the Changuinola, and the proposed line runs from the headwaters of the Yorquin along such watershed to the Cordilleras. The situation thus assumed by the proposed decree to exist in the region of the headwaters of the Yorquin is in conformity with maps which are in the record, one of which was made by the commission of engineers in this case, but which is not, however, the result of a survey by that body as it was not called upon by either party to make one. As the line thus suggested would seem to be in all respects the most reasonable, I shall adopt it with some verbal modifications as a part of the award to be entered, however, with the following reservation: without prejudice to the right of the parties in case there should be differences between them resulting from contentions as to the topography of the country between the headwaters of the Yorquin and the Cordilleras differing from that above stated, to raise such question in any appropriate way consistent with the provisions of the treaty now being enforced.
Coming to give effect to the opinions previously stated and the conclusions deduced from them, the award now made under the authority of the treaty is as follows:
1. That the line of boundary which was purported to be established by the previous award from Punta Mona to the main range of the
Cordilleras and which was declared to be a counterfort or spur of mountains in said award described, be and the same is held to be non-existing.
2. And it is now adjudged that the boundary between the two countries “most in accordance with the correct interpretation and true intention” of the former award is a line which, starting at the mouth of the Sixaola River in the Atlantic, follows the thalweg of that river, upstream, until it reaches the Yorquin, or Zhorquin River; thence along the thalweg of the Yorquin River to that one of its headwaters which is nearest to the divide which is the north limit of the drainage area of the Changuinola, or Tilorio River; thence up the thalweg which contains said headwater to said divide; thence along said divide to the divide which separates waters running to the Atlantic from those running to the Pacific; thence along said Atlantic-Pacific divide to the point near the ninth degree of north latitude "beyond Cerro Pando,” referred to in Article I of the treaty of March 17th, 1910; and that line is hereby decreed and established as the proper boundary.
3. That this decree is subject to the following reservations in addition to the one above stated:
(a) That nothing therein shall be considered as in any way re-opening or changing the decree in the previous arbitration rejecting directly or by necessary implication the claim of Panama to a territorial boundary up to Cape Gracias a Dios, or the claim of Costa Rica to the boundary of the Chiriquí River.
(b) And, moreover, that nothing in this decree shall be considered as affecting the previous decree awarding the islands off the coast since neither party has suggested in this hearing that any question concerning said islands was here open for consideration in any respect whatever.
(c) That nothing in the award now made is to be construed by its silence on that subject as affecting the right of either party to act under Article VII of the treaty providing for the delimitation of the boundary fixed if it should be so desired.
A Digest of Cases Decided in France relating to Private International Law.
By Pierre Pellerin. London: Stevens & Sons, Limited, 1914. pp.
134. It seems almost a mockery to speak or write of the rules of international law at a time when every principle looking to the peaceful settlement of disputes involving nations and national laws appears to be toppling in one vast cataclysm. And yet those of us who have labored in these fields have still an abiding faith in the vitality and final triumph of the rules of humanity and justice that underlie these relationships.
It is with a spirit chastened by somber reflections that I pen this little review of the work of M. Pierre Pellerin, Licencié en droit of the University of Paris, who at this moment perhaps is bravely fighting his country's battles at the front or sleeping the sleep that knows no waking in a soldier's grave.
The book is intended only as a brief digest of the actual decisions of the French courts in cases involving questions of private international law, embracing in all 134 pages.
After the preface the author devotes a page to an explanation of the abbreviations used in making citations to authorities. This is followed by two pages of what he calls “a dictionary of French legal terms for which concise English equivalents do not exist." The last eight pages contain an index.
In the analytical arrangement the various heads are classified in the following alphabetical order:
Arbitration (two pages; one case).
Competence of Courts and Rules of Procedure (twenty pages; eighteen cases).
Contracts (four pages; four cases).
Intestate and Testamentary Succession (fifteen pages; twelve cases).
Taken as a whole, the book represents a faithful and quite successful attempt of a French author to frame in an English setting certain decisions of the French courts upon the subjects enumerated.
But in English and American law the word “digest” has come to embrace the idea of completeness, of covering all cases on the given subject. In this aspect the title of the book is a misnomer, as an examination of the foregoing analysis will disclose. It is inconceivable for instance that only four cases touching private international law as applied to contracts have been decided by the French courts since 1896, the date of the first case given. That a complete digest is not intended appears also from the fact that it comprises, in the main at least, only cases in which British and American litigants are concerned.
Comparing the book in its method and mechanical arrangement with the legal digests published in America, one is struck by the lack of attention paid to cross-references, running titles, and the side-helps and aids which take so prominent a place in our works of the kind.
The reader is also impressed by the difference in the ease with which cases are cited. In America we would cite a case “Smith v. Jones, 153 Mass. 270.” Our French digest, mentioning no names of parties, would cite it as follows: “27th May 1911.-Court of Appeals of Douai.'Recueil des Sommaius' 1912, page 1640,” or “21st May 1905.—Civil Court of Lille.-Clunet 1909, page 181."
Space, or the want of it, forbids the discussion of the actual points decided by the French courts in the cases digested; but some of the decisions, it must be admitted, sound strange to American ears. Perhaps the most curious is the “Renvoi” doctrine which results from the fact that in France many questions are decided in accordance with the law of nationality which elsewhere are determined by the law of domicile. Hence if an Englishman becomes domiciled (but not naturalized) in France, and a question arises as to his status which by French law would be governed by the law of his nationality (English law) and by English law is governed by the law of his domicile (France), a sort of an impasse