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SAMOAN ISLANDS.

1878.

· TREATY OF FRIENDSHIP AND COMMERCE.

Concluded January 17, 1878; ratification advised by the Senate with

amendments January 30, 1878; ratified by the President February 8, 1878; ratifications exchanged February 11, 1878; proclaimed February 13, 1878. (Treaties and Conventions, 1889, p. 972.)

This treaty, consisting of eight articles, is annulled by treaty of December 2, 1899, between United States, Germany, and Great Britain (p. 685).

1889.

GOVERNMENT OF THE SAMOAN ISLANDS.

Concluded at Berlin June 14, 1889; ratification advised by the Senate

February 4, 1890; ratified by the President February 21, 1890; ratifications exchanged April 12, 1890; assented to by Samoa April 19, 1890; proclaimed May 21, 1890. (U. S. Stats., vol. 26, p. 1497.)

py treaty of December 2, 1899, between United States, Germany, and Great Britain.

1899.

CONVENTION BETWEEN UNITED STATES, GERMANY, AND GREAT

BRITAIN RELATING TO SETTLEMENT OF SAMOAN CLAIMS.

Concluded November 7, 1899; ratification advised by Senate February 21, 1900; ratified by President March 5, 1900; ratifications exchanged March 1, 1900; proclaimed March 8, 1900. (U. S. Stats., vol. 31, p. 1875.)

ARTICLES.

1. Claims considered. II. Arbitrator.

III. Claims of persons not natives.
IV. Ratifications.

The President of the United States of America, His Majesty the German Emperor, King of Prussia, in the name of the German Empire, and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, being desirous of effecting a prompt and satisfactory settlement of the claims of the citizens and subjects of their respective countries resident in the Samoan Islands on account of recent military operations conducted there, and having resolved to conclude a Convention for the accomplishment of this end by means of arbitration, have appointed as their respective plenipotentiaries:

The President of the United States of America, The Honorable John Hay, Secretary of State of the United States;

His Majesty the German Emperor, King of Prussia, His Minister in Extraordinary Mission, Dr. Jur. Mumm von Schwarzenstein, Privy Councilor of Legation; and

Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Mr. Reginald Tower, Her Britannic Majesty's Chargé d'Affaires ad interim;

Who, after having communicated to each other their full powers, which were found to be in due and proper form, have agreed to and concluded the following articles:

ARTICLE I.

All claims put forward by American citizens or Germans or British subjects respectively, whether individuals or companies, for compensation on account of losses which they allege that they have suffered in consequence of unwarranted military action, if this be shown to

between the first of January last and the arrival of the Joint Com

the principles of International Law or considerations of equity.

ARTICLE II. The three Governments shall request His Majesty the King of Sweden and Norway to accept the office of Arbitrator. It shall also be decided by this arbitration whether, and eventually to what extent, either of the three Governments is bound, alone or jointly with the others, to make good these losses.

ARTICLE III.

Either of the three Governments may, with the consent of the others, previously obtained in every case, submit to the King for arbitration, similar claims of persons not being natives, who are under the protection of that Government, and who are not included in the above mentioned categories.

ARTICLE IV. The present Convention shall be duly ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, and by His Majesty the German Emperor, King of Prussia; and by Her Majesty the Queen of the United Kingdom of Great Britain and Ireland; and the ratifications shall be exchanged at Washington four months from the date hereof, or earlier if possible.

In faith whereof, we, the respective Plenipotentiaries, have signed this Convention and have hereunto affixed our seals.

Done in triplicate at Washington the seventh day of November, one thousand eight hundred and ninety-nine.

JOHN HAY

[SEAL.] A v MUMM

(SEAL REGINALD TOWER (SEAL. 1

1902.

SAMOAN CLAIMS DECISION. Decision given by His Majesty Oscar II, King of Sweden and Nor

way, as arbitrator under convention of November 17, 1899, between Germany, Great Britain, and the United States, relating to claims on account of military operations conducted in Samoa in 1899, given at Stockholm October 14, 1902.

We Oscar, by the Grace of God King of Sweden and Norway,

Having been requested by His Majesty the German Emperor, King of Prussia, in the name of the German Empire, by Her Majesty the late Queen of the United Kingdom of Great Britain and Ireland, and by the President of the United States of America to act as Arbitrator in the differences existing between them with regard to certain claims of residents in the Samoan Islands on account of military operations conducted there in the year 1899, and having accepted the office of Arbitrator;

llaving received from the Imperial German Government, His Britannic Majesty's Government, and the Government of the United States of America their respective Cases accompanied by the documents, the official correspondence, and other evidence on which each Government relies, as well as, after due communication hereof, their respective Counter-Cases and additional documents, correspondence, and other evidence, and having thereupon received from the Imperial German Government their Reply to the Counter-Cases and additional documents, correspondence, and other evidence presented by the two other Governments;

Having since fully taken into Our consideration the Convention concluded and signed at Washington the 7:th of November 1899 for the settlement of the aforesaid claims by means of arbitration, and also the Cases, Counter-Cases, Reply, and evidence presented by the respective parties to the said Convention up to the 2:nd of April 1902, and having impartially and carefully examined the same:

Whereas by Art. I of the said Convention of the 7:th of November 1899 His Majesty the German Emperor, Her Britannic Majesty, and the President of the United States of America have agreed that all claims put forward by Germans, or British subjects, or American citizens, respectively, for compensation on account of losses which they allege having suffered in consequence of unwarranted military action, if this is shown to have occurred, on the part of German, British or American officers between the 1: st of January 1899 and the 13:th of May following, date of the arrival in Samoa of the Joint Commission of the Powers, should be decided by the present arbitration in conformity with the principles of international law or considerations of equity;

And whereas by Art. III of the said Convention it is provided that either of the three Governments may, with the consent of the others, previously obtained in every case, submit to the Arbitrator similar claims of persons not being natives who are under the protection of that Government, and who are not included in the above mentioned categories;

And whereas, by a subsequent arrangement made by the Signatory Powers, with Our sanction, the provisions of the Arbitration Convention have been extended to claims presented by other Powers on behalf of their subjects or citizens;

And whereas the German Government contend that the military action undertaken by British and American officers at the time aforesaid was wholly unwarranted and that, therefore, the British and United States' Governments are responsible for losses caused by said military action to Germans and to persons under German protection;

And whereas, on the other hand, the British Government and the United States' Government argue that the military action in question was not unwarranted but, on the contrary, was in every respect necessary and justifiable, and that, therefore, no claims are entitled to consideration by the Arbitrator, and no further proceedings under the aforesaid Convention necessary or admissible, while reserving to themselves the right to examine iu detail the particular claims, should it later on become necessary to do so;

And whereas under Art. I of the said Convention no other claims are to be decided by the present arbitration than those for losses suffered in consequence of unwarranted military action, and thus the primary question to be determined by Us is whether the military action undertaken in Samoa at the time aforesaid by British and American officers was, or was not, unwarranted;

And whereas it is proper to settle this preliminary point at the present stage, and thus determine generally whether or not the British and United States' Governments ought to be considered responsible for losses caused by that action, before ordering any proceedings with respect to the particular claims presented;

Have resolved to confine Our attention, for the present, to those considerations only which have a distinct bearing on the said issue, and on that question have arrived at the following Decision:

Whereas, with respect to the military action complained of, it results from the declarations of the parties and from all the documents of the case that on the 15: th of March 1899 the U. S. ship “Philadelphia" and II. B. M. ships “Porpoise” and “Royalist” opened fire across the town of Apia and on the land situate in the rear of said town, the fire being directed against the forces of the High Chief Mataafa, that the greater part of the adherents of the newly appointed King of Samoa, Malietoa Tanumafili, having in those days been brought to Apia from different parts of the Samoan Islands by the British and American Naval Commanders, landed at Mulinuu and supplied by them with arms and ammunition, active hostilities thereupon ensued between the Malietoans and the Mataafa party, that from the said 15: th of March up to the 25:th of April following the said ships, in support of the Malietoa party, frequently proceeded to bombard the rear of Apia as well as various other localities on the Island of Upolu and to destroy villages by landing parties, assisted therein from the 24: th of March by H. B. M. ship “Tauranga,” that from the said 15:th of March up to the said 25:th of April frequent expeditions into the interior took place by combined forces of sailors and marines from the ships of war and natives of the Malietoa party commanded by officers from the ships, for the purpose of fighting the Mataafans, or in order to procure food, and that in Apia a severe control of the street traffic was established by the British and American military authorities through the posting of sentries with orders to allow only bearers of passports issued by said authorities to pass;

Whereas—with respect to the contention of the British and United States' Governments that, under the terms of the General Act signed at Berlin the 14:th of June 1889, any one of the Signatory Powers was fully authorized to enforce by every means the decision of the 31:st of December 1898 of the Chief Justice of Samoa declaring Malietoa Tan

umafili King of Samoa, which decision had been rejected by the Mataafa party, and that, therefore, the military action, if taken for that purpose, was not unwarranted—We have found nothing in the said General Act, or any subsequent agreement, which authorizes one of the Signatory Powers, or a majority of them, to take action to enforce the provisions of the Act, or the decisions of the Chief Justice binding on the Powers;

Whereas, on the contrary, by Art. I of the General Act it is expressly provided that “neither of the Powers shall exercise any separate control over the islands or the Government thereof”, and, taking into consideration the nature and extent of the operations at the time aforesaid conducted in Samoa by the British and American military authorities, the military action in question undoubtedly had the character of a serious control over the Samoan Islands and the Government thereof;

And whereas, moreover, the protocols of the Berlin Conference clearly show that, in framing the General Act, the plenipotentiaries of the Powers wished to establish the principle that, in their dealings with Samoa, the Powers only could proceed by common accord, and as this very principle has been sanctioned by the Powers not only in subsequent agreements supplementary to the General Act made between them in 1892 and 1896, by which it was agreed that under certain circumstances their ships of war might be used to support the Supreme Court of Samoa and ammunition served out to the Samoan Government, though in both cases only with the unanimous consent of the representatives of the Powers, but also in the instructions issued for the Joint Commission sent to Samoa in 1899, the actions of which should be valid only if acceded to by all three commissioners;

Whereas, furthermore, by proclamation issued on the 4: th of January 1899 the Consular Representatives of the Treaty Powers in Samoa, owing to the then disturbed state of affairs and to the urgent necessity to establish a strong Provisional Government, recognized the Mataafa party represented by the High Chief Mataafa and thirteen of his chiefs to be the Provisional Government of Samoa pending instructions from the three Treaty Powers, and thus those Powers were bound upon principles of international good faith to maintain the situation thereby created until by common accord they had otherwise decided;

And whereas, that being so, the military action in question undertaken by the British and American military authorities before the arrival of the instructions mentioned in the proclamation, and tending to overthrow the Provisional Government thereby established, was contrary to the aforesaid obligation and cannot be justified on the plea neither of the invalidity ab initio of the said Provisional Government nor of its establishment under a species of force majeure;

Whereas—with respect to the objection of the British and United States' Governments to the refusal of the German Consul to sign the proclamation proposed by the other Consuls to be issued immediately after the Chief Justice had given his decision on the 31:st of December 1898, and their contention that, in determining the responsibility for the subsequent events, it should be taken into consideration that the attitude of the German Consul was a direct violation of the provisions of the Berlin General Act-it cannot be considered to have been the duty of the German Consul to take part in the issuing of said proclamation, and it has not been proved that with regard to said decision any steps were taken by him contrary to the General Act, and therefore no responsibility attaches for the attitude taken up by him in this respect;

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