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draw from the natives in a great degree the enjoyment of those benefits which they formerly derived from their customary tribal rights over large tracts. In a country where there has been no ownership of land in severalty by the natives, but only communal ownership of rights over extensive tracts, to allot to the Government and its concessionaires ownership in severalty to all the lands not already owned and held in severalty is in effect to deprive the natives of their rights to the soil, and this has been in a great measure the effect of the system which has been followed in the Independent State of the Kongo.
The Government of the United States is much gratified to know that since the American memoranda of April 7th and April 16th, 1908, the Government of Belgium has expressed its purpose to extend the area of the lands to be assigned to the natives for their cultivation and traffic pursuant to the Royal Decree of June 3, 1906, and it confidently expects that the restoration of land to the natives will be commensurate with the value of the communal rights of which they have been deprived hitherto, and will put the natives in a position by means of adequate provision out of their own territory to realize the benefits which were contemplated by the arrangement under which the title and control over the territory of the Independent State of the Kongo was vested in that State for the humanitarian purpose of improving the condition of the natives and securing to them the blessings of civilization.
It should always be remembered that the basis of the sovereignty of the Independent State of the Kongo over all its territory was in the treaties made by the native sovereigns who ceded the territory for the use and benefit of free states established and being established there under the care and supervision of the International Association so that the very nature of the title forbids the destruction of the tribal rights upon which it rests without securing to the natives an enjoyment of their land which shall be a full and adequate equivalent for the tribal rights destroyed.
It may be timely to revert in this relation to the hope expressed in the American memorandum of April 16, 1908, that the Belgian Government may see its way clear to accept frankly and promptly the proposition to refer to arbitration all purely commercial and economic questions, as being a procedure entirely in accordance with the rapidly growing practice of cizilized nations; and to the statement in the Belgian memorandum in reply, dated July 24, 1908, that the Belgian Government finds no difficulty in declaring that if, after annexation, it were invited to refer to the Tribunal of The Hague, as a last resort, a difference arising from a divergence of appreciation in the interpretation of the treaties which bind the States of the Kongo, it would examine the proposition with special benevolence and be inspired by the broad views which guided it in the drafting of the arbitration treaties concluded by Belgium.
The scope of this declaration would however seem to be abridged by the considerations which follow it in the Belgian memorandum-reply. These seem to limit the applicability of such eventual arbitration to questions under the collective Act of Berlin; to require the joining in the arbitration of other powers holding possessions in the Kongo basin; and to advocate, in place of a recourse to arbitration, the attainment of a direct understanding, for the settlement of disputes “in the commercial basin of the Kongo, among all the powers holding territories in that region.” It is not to be lost sight of that the United States has a direct commercial interest in the particular territory of the Independent State of the Kongo by reason of its treaty with that State of January 24, 1891, which, besides pledging specified rights to commerce and intercourse, gives to the United States as well as to its citizens, the right to the treatment of the most favored nation. This consideration may seem to have been overlooked in the Belgian memorandum-reply, which, in conclusion, answers the expectation of the United States that, in virtue of its existing treaties, it will obtain all the privileges commercial and otherwise accorded in the Kongo to other nations, by the statement that “When it annexes the possession of the Independent State, Belgium will inherit its obligations as well as its rights; it will be able to fulfill all the engagements made with the United States by the declarations of April 22, 1884.” It would be gratifying to the United States to know that the last clause of the statement just quoted is not intended to confine the rights of the United States in the Independent State to the declarations of the Commercial Association which preceded the creation of the Kongo State as a sovereign power, but includes the conventional rights conferred upon the United States by the treaty concluded with the Independent State immediately after its recognition.
In the absence of a fuller understanding on all these points, I confine myself for the present to acknowledging your note of the 4th of November last and taking note of the announcement therein made. Be pleased to accept, Sir, the assurance of my high consideration.
ELIHU Root. BARON MONCHEUR,
Minister of Belgium.
“ POLITICAL OFFENCE” IN EXTRADITION TREATIES BETWEEN THE UNITED
STATES AND OTHER COUNTRIES.
FRANCE. Extradition of fugitives from justice.
November 9, 1813.
ARTICLE 5. The provisions of the present convention shall not be applied in any manner to the crimes enumerated in the second article, committed anterior to the date thereof, nor to any crime or offence of a purely political character.
AUSTRIA-HUNGARY.? Ertradition. July 3, 1856.
ARTICLE 1. * * * The provisions of the present convention shall not be applied, in any manner, to the crimes enumerated in the first article, committed anterior to the date thereof; nor to any crime or offence of a political character.
HAITI. Amity, commerce and navigation, and the extradition of crim
inals. November 3, 1861.
ARTICLE 41. The provisions of the foregoing articles relating to the extradition of fugitive criminals shall not apply to offences committed before the date hereof, nor to those of a political character. Neither of the contracting parties shall be bound to deliver up its own citizens under the provisions of this treaty.
TURKEY. Extradition. August 11, 1874.
ARTICLE 3 The provisions of this treaty shall not apply to any crime or offense of a political character, and the person or persons delivered up for the crimes enumerated in the preceding article shall in no case be tried for any ordinary crime, committed previously to that for which his or their surrender is asked.
1 See editorial comment, p. 459.
2 There is a similar provision in the treaty with Baden, Mutual surrender of criminals, January 30, 1857, article 1.
ECUADOR. Extradition. June 28, 1872.
ARTICLE 3. The stipulations of this treaty shall not be applicable to crimes or offences of a political character; and the person or persons delivered up, charged with the crimes specified in the foregoing article, shall not be prosecuted for any crime committed previously to that for which his or their extradition may be asked.
JAPAN. Extradition of criminals. April 29, 1886.
ARTICLE 4. If it be made to appear that extradition is sought with a view to try or punish the person demanded for an offence of a political character, surrender shall not take place; nor shall any person surrendered be tried or punished for any political offence committed previously to his extradition, or for any offence other than that in respect of which the extradition is granted.
RUSSIA. Extradition of criminals. March 16/28, 1887.
ARTICLE 3. If it be made to appear that extradition is sought with a view to try or punish the person demanded for an offense of a political character, surrender shall not take place; nor shall any person surrendered be tried or punished for any political offense committed previously to his extradition, nor for any offense other than that for which the extradition was granted; nor shall the surrender of any person be demanded for an offense committed prior to the date at which this convention shall take effect.
An attempt against the life of the head of either government, or against that of any member of his family, when such attempt comprises the act either of murder or assassination or of poisoning, or of accessoriship thereto, shall not be considered a political offense or an act connected with such an offense.
NETHERLANDS. Extradition of criminals. June 2, 1887.
ARTICLE 3. The provisions of this convention shall not apply to any crime or offence of a political character, nor to acts connected with such crimes or offences; and no person surrendered under the provisions hereof shall in any case be tried or punished for a crime or offence of a political character, nor for any act connected therewith, committed previously to his extradition.
COLOMBIA. Extradition of criminals. May 7, 1888.
ARTICLE 5. If it be made to appear that the extradition is sought with the view of trying or punishing the person demanded for an offense of a political character, surrender shall not take place; nor shall any person surrendered be tried or punished for a political offense, committed previously to extradition, or for any offense other than that for which extradition was granted.
NORWAY. Extradition of criminals. June 7, 1893.
ARTICLE 6. A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.
No person surrendered by either of the high contracting parties to the other shall be triable or tried, or be punished, for any political crime or offense, or for any act connected therewith, committed previously to his extradition.
If any question shall arise as to whether a case comes within the provisions of this article, the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition, shall be final.
ARGENTINE. Extradition of criminals. September 26, 1896.
ARTICLE 6. Extradition will not be granted for a crime or offense of a political character nor for those connected therewith.
3 Similar provisions exist in treaties with: Denmark, Extradition of fugitives from justice, January 6, 1902, article 6; Peru, Eatradition of criminals, November 28, 1899, article 6; Servia, Mutual extradition of fugitives from justice, October 25, 1901, article 6; Sweden, Extradition of criminals, January 14, 1893, article 6; Panama, Mutual extradition of criminals, May 25, 1904, article 6.