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The Pamphlet Collection of Sir Robert Stout: Volume 76

The Protocols and the Treaty

The Protocols and the Treaty.

In my last article it was pointed out that, admittedly, there was no disability imposed upon Mataafa by the Berlin-Samoan Treaty, either by express terms or by implication, and that it is exceedingly difficult to find, even in the protocols, that "condition so manifestly and mandatorily stated" upon which Chief Justice Chambers founds his decision That which appears difficult to one reader, may, however, seem plain and clear to another. His Honour has decided that the condition is contained in the protocols page 18 and that the protocol forms part of the Treaty. The reasoning [unclear: by] which he has arrived at this conclusion, though not quite [unclear: convincing] to some, may he considered cogent and irresistible to [unclear: those] who will probably be called upon to review and report on the [unclear: judgement]. Assuming, therefore, that the interpretation placed [unclear: upon] the fifth protocol by the Chief Justice be correct, and that a [unclear: disability] is by that protocol actually imposed on Mataafa, the [unclear: third] question presents itself for consideration: Do the protocols, and [unclear: in] particular this condition as to Mataafa, form part of the [unclear: Treaty]. To the question, put generally, Do protocols form part of [unclear: the] Treaty, which is their ultimate outcome? probably the [unclear: unanimous] reply of any body of lawyers would be an emphatic negative. A treaty is, perhaps, the highest form of contract, being a solemn agreement between two or more nations, and though some of the principles of the law relating to contracts between individuals do not apply to treaties, yet many of the rules for the construction and interpretation of treaties are similar to those governing the construction and interpretation of private contracts. Thus, when a matter has been the subject of extended negotiation, and is a length reduced into a formal-written contract, signed and accepted by all parties, this final document supersedes the preliminary negotiations, and is looked to as containing all that has been finally agreed upon between the parties. To incorporate the preliminary negotiations would have the effect of introducing uncertainty, conflict, and confusion. So, with regard to treaties, it is laid down that "mere negotiations, preparatory communications, are, in their nature, not of a binding character." Now, the protocols of the Berlin-Samoan Treaty are the record of the preliminary negotiations, the minutes of the meetings of the Conference, and they also contain evidently much abbreviated reports of some of the discussions which took place. To incorporate all this matter in the Treaty itself would manifestly enormously increase the difficulty of a rational, consistent, and true interpretation. On the other hand, it is unquestionable, with regard to this particular Treaty, that there are in the protocols, various agreements and stipulations, which, though not in the Treaty itself, were intended to operate concurrently with it as fully as if they had been incorporated in its text. Thus, in the protocol of the seventh session, we read: "Dr. Krauel asked whether a clause should not be inserted, exempting the Consuls from the jurisdiction of the Supreme Court.

"It was agreed that such a clause was not necessary, as it was the manifest intention of the Conference that the Consuls and their families should be exempted from such jurisdiction."

Again, in the protocol of the eighth session, we read, with reference to the Chief Justice, "Mr. Kasson further suggested page 19 that it might be desirable to add the words, 'and shall be fully acquainted with the English language.'

"Count Bismarck thought that it would be sufficient that the latter suggestion should be recorded in the protocol, which proposal was adopted.

"The opinion was unanimously expressed by the Conference that the person selected for that office should be fully acquainted with the English language."

Again, as an instance of interpretation of what might otherwise be considered obscure or uncertain, we read, "It was agreed to state in the protocol that section 3, of Article V., intended that the appointment of Municipal Magistrate should be made by resolution of the Council, and thus be subject to approval as in the case of other resolutions" The reader will be struck at once with an essential difference between these instances and the minutes containing the references to Mataafa. In the former, the protocols record an agreement, a unanimous expression, a manifest intention, whereas with regard to Mataafa no agreement, no manifest intention, no unanimous expression is to be found in the record. Count Bismarck did not even ask that anything in the shape of a resolution or condition should be recorded. Whether a Court in construing and interpreting the Treaty would be right in taking judicial notice of the passages in the protocols quoted above, is a very debatable question. Chief Justice Chambers, however, has many precedents to justify him in referring to the protocols in judicial decisions. Both his predecessor, Chief Justices Cederkrantz and Ide, have made reference to them repeatedly, and counsel have often referred to them in support of their arguments. I do not, however, recollect a case where a decision has been based upon a protocol, nor yet a case where the protocols have been held to govern the interpretation of the treaty. Reference has been made to them merely for the purpose of getting all the light possible on obscure and difficult questions. No doubt they have been of some value from time to time in assisting the Court to interpret rightly what is in the Treaty, but that, of course, is very different from using them for the purpose of putting into the Treaty something which the Treaty does not already contain, and something, moreover, which seems to be in complete antagonism to its express provisions. There is another important distinction between the agreements recorded in the protocols and the alleged disability of Mataafa. The former relate to matters which do not really affect the Samoans at all, and are of little or no interest to them, while the latter is a purely Samoan matter affecting them most deeply, and interesting them most profoundly, and here one of the fundamental page 20 principles of the law relating to treaties requires to he noticed. It is thus stated by Phillimore: "The free reciprocal consent of both contracting parties, which is indispensable to the validity of a contract between individuals, is equally requisite for a treaty between States." It has been already stated that Samoa was not represented at the Berlin Conference, and was not consulted at all while the Treaty was being framed The gentlemen constituting the Berlin Conference were nearly two solid months framing their Treaty. Samoa was allowed just two days in which to consider a measure so deeply affecting her. She, however, assented to it, and Malietoa Laupepa certified that his country accepted it with satisfaction. The assent of Samoa to the Treaty was, of course, a mere matter of form. It was translated into the Samoan tongue, and the certificate of assent prepared and duly signed. By a legal fiction it may be considered that the free reciprocal consent of both parties had been obtained. That consent, however, was to the Treaty, and the Treaty only. It is impossible for anyone to contend seriously that Samoa ever consented to the protocols. The protocols have never been translated into Samoan. The Samoans have never been made acquainted with them. Of the few copies of the protocols in circulation in Samoa it is not probable that even one is in the hands of any Samoan. The consent of Samoa to any of the protocols has never been obtained, has never been sought. To suggest or argue that assent by Samoa to the Treaty included or involved assent to the protocols would be too preposterous to be seriously treated by anyone. However binding the various agreements minuted in the protocols may be as between England, Germany, and America, it seems impossible to contend on any principle of law, equity, or common sense, that Samoa is in any way bound by them. That free reciprocal consent which is indispensable to the validity of a Treaty is absolutely wanting, even in form.

Chief Justice Chambers has, however, given a decision under a clause in the Treaty assented to by Samoa, and that clause authorises him to decide any dispute, and declares his decision shall be final, and this last question as to the finality of his decision remains to be considered From what has been now stated, it would seem that Mataafa would have rather a strong case to carry to a Court of Appeal, supposing that such a court existed. He may have reason to regret that he did not adopt this course, if such a course were really open to him. Probably the Treaty Powers regret this even more than he is ever likely to do.