ARTICLE 10.

The Governments shall regulate by common consent the details pertaining to the execution of the present agreement.

ARTICLE 11.

The States of the Union for the Protection of Industrial Property which have not taken part in the present agreement shall be admitted to adhere thereto on their application and in the form prescribed by article 16 of the convention of March 20, 1883, for the protection of the industrial property.

As soon as the International Bureau shall be informed that a state has adhered to the present agreement it shall address to the government of the state, conformably to article 3, a collective notification of marks which at that time enjoy international protection.

This notice shall of itself secure to the said marks the benefit of the foregoing provisions in the territory of the adhering state, and shall cause to run the delay of a year, during which the interested government cạn make the declaration provided for in article 5.

ARTICLE 12.

The present agreement shall be ratified, and the ratifications shall be exchanged at Madrid, within a period of six months at the latest.

It shall take effect one month after the exchange of ratifications, and shall have the same force and duration as the convention of March 20, 1883.

In witness whereof the plenipotentiaries of the states above named have signed the present agreement at Madrid April 14, 1891.

FINAL PROTOCOL.

On proceeding to the signature of the agreement concerning the international registration of trade-marks, concluded this day, the plenipotentiaries of the States which have adhered to said agreement have agreed as follows:

Doubts having arisen on the subject of the meaning of article 5, it is clearly understood that the right of refusal which that article leaves to the Governments does not affect the provisions of article 6 of the convention of March 20, 1883, and of paragraph 4 of the final protocol which accompanies it, these provisions being applicable to the marks deposited at the International Bureau as they have been and still will be to those deposited directly in all the contracting countries.

The present protocol shall have the same force and duration as the agreement of which it forms a part.

In witness whereof the undersigned plenipotentiaries have signed the present protocol at Madrid the 14th of April, 1891.

IN RE NOTE OF THE IMPERIAL AMBASSADOR OF GERMANY AT THIS CAPITAL TO THE SECRETARY OF STATE, COMPLAINING OF THE REGULATIONS AND RESTRICTIONS OF TRADE WITH THE INHABITANTS OF THE SULU ISLANDS, IMPOSED BY THE MILITARY GOVERNMENT OF THE PHILIPPINE ARCHIPELAGO.

ALSO

THE CORRESPONDENCE BETWEEN THE UNITED STATES CONSULGENERAL AT SINGAPORE AND THE IMPERIAL CONSUL OF GERMANY AT THAT PORT, REGARDING THE CLOSING OF THE PORTS OF THE SULU ARCHIPELAGO TO FOREIGN COMMERCE, BY ORDER OF THE COMMANDER OF THE UNITED STATES MILITARY FORCES IN THE PHILIPPINE ISLANDS.

[Submitted October 8, 1900. Case No. C-850, Division of Insular Affairs, War Department.]

SYNOPSIS.

1. The Imperial ambassador of Germany at this capital makes the claim that the military government of the Philippines is without authority to regulate, restrict, or prohibit trade with the inhabitants of the Sulu Islands; and in support thereof advances the following propositions: (a) The United States did not acquire sovereignty over the Sulu Archipelago by the conquest thereof, nor was sovereignty thereover confirmed unto the United States by the treaty of Paris (1898), for the reason that Spain had never acquired sovereignty in said archipelago, nor was Spanish sovereignty therein recognized and internationally established. (b) The provisions of the protocols entered into by Germany, Great Britain, and Spain, of date March 11, 1877, and March 7, 1885 (Martens, Nou. Rec., 2d series, vol. 2, p. 280; vol. 10, p. 642), constituted a grant creating a perpetual easement in favor of Germany, Great Britain, and the other powers, which is a servitude upon the Sulu Archipelago, diminishes the fee thereof, and remains attached thereto. (c) If the rights secured by Germany, Great Britain, and the other powers by said protocols are not vested by a grant, then they are rights derived from a contract between the respective sovereignties of Spain, Germany, and Great Britain, which contract was in force at the time the United States acquired sovereignty over said archipelago, and the obligations of said contract, incumbent upon Spain, passed to and became binding upon the United States.

2. If these propositions and the claims based thereon are advanced on behalf of the German Government, the controversy involves an international complication between Germany and the United States. In such matters the State Department has exclusive jurisdiction as to the interests of the United States.

3. If this claim is asserted for and on behalf of an individual or private concern and is intended to be addressed to the military government of the Philippines instead of to the Federal Government of the United States, that fact does not divest the matter of its international character, and it must be considered as not a proper subject for discussion by the officials of the military government or the War Department.

4. The military government of the Philippines and the War Department are bound to aid the State Department in controversies of this character by furnishing such knowledge and information in respect thereof as they are able to secure.

5. The regulations, restrictions, and prohibitions respecting trade in the Sulu Islands, of which complaint is made, were adopted as war measures required by the military necessities of the situation. They are not to be considered as establishing the permanent policy of the United States when the conditions of peace shall prevail in the archipelago.

6. Sovereignty over the Sulu Islands prior to the treaty of peace (1898) was vested in the Crown of Spain, and was not participated in by Germany and Great Britain.

7. The sovereignty of the United States over said islands is complete and exclusive. SIR: I have the honor to acknowledge the receipt of your request for a report on the above-entitled matter, and in compliance therewith I have the further honor to report as follows:

The matter as now presented to this Department arises from the following state of facts:

The German consul at Singapore, acting on behalf of certain German merchants who desire to trade with the inhabitants of the Sulu Islands, requested the United States consul to inform him if such trading would be permitted by the United States authorities, and wast informed that it would not be permitted.

The correspondence between the two consuls on this subject apparently ceased with the exchange of these two letters.

Subsequently the State Department forwarded to the War Department a translation of a note from the German ambassador at this capital relating to the same matter. (Doc. 6, 7, 8.)

The complaint made by the German ambassador questions the sovereignty of the United States over the islands of the Sulu Archipelago. The reference of said question by the State Department to the War Department involves the question of jurisdiction by the War Department to pass thereon.

The note of the German ambassador is as follows:

IMPERIAL GERMAN EMBASSY,
Washington, July 31, 1900.

Mr. SECRETARY OF STATE: The military governor of the Philippines ordered in the fall of last year that the harbors of the Sulu Archipelago remain closed to foreign commerce until the issuance of special regulations. As shown by the inquiries made of him in the matter, he held that this measure was warranted because, in his opinion, the arrangements concluded by Spain, Germany, and England in the protocols of March 11, 1877, and March 7, 1885 (printed in Martens, Nou. Rec. Gen., 2d series, Vol. II, p. 280; Vol. X., p. 642), were extinct by reason of the transfer of the sovereignty over the Sulu Archipelago to the United States under the Paris treaty of peace. In the meanwhile, foreign trade has, to be sure, been again permitted to a certain extent in the Sulu Archipelago, but the existing conditions are different from those which obtained under the above-named protocols during the Spanish régime, especially in that the coastwise trade is forbidden, that the foreign trade is allowed not with all ports, but only with such as are occupied by American troops, and even then, barring some designated ports, with a permit from the American military authorities, and, finally, that in the open ports foreign commerce is subjected to differential customs treatment.

The restraint thus imposed upon German trade has been the cause of complaints from the firm Behn, Myer & Co., of Singapore, which had previously built up quite

a trade with the Sulu Archipelago. The Norddeutcher Lloyd has likewise petitioned in behalf of German commercial and shipping interests that the necessary steps be taken to restore previous conditions.

The preponderance of opinion among leading expounders of international law is to the effect that agreements between States which have merely a local application are not affected by a change of sovereignty over the country to which they apply on this one ground. General Otis's standpoint on the present question seems to be untenable. But apart from this consideration, the circumstances under which the protocols of 1877 and 1885 were concluded leave no doubt that their continuance under the new American rule would be but consonant with the principles of equity and international law. The negotiations which led to the conclusion of both agreements clearly show that, notwithstanding her treaty with the Sultan of Sulu, Spain did not acquire sovereignty over the archipelago, or, in any event, that such sovereignty was not recognized and internationally established. The Imperial Government jointly with England have therefore lodged with the Spanish Government a reservation against any detriment to our flag and people worked by actual assumption of such unsanetioned sovereignty. Spain was then constrained to acknowledge in a note addressed to the English representative at Madrid, under date of April 15, 1876, “that the relations which may exist between Spain and Sulu do not give a right to either State to prohibit or interfere with the direct traffic of British subjects or other foreigners with the ports of the said archipelago, which traffic ought to be and shall be respected in accordance with the principles of international maritime law." The sovereignty of Spain over the Sulu Archipelago is recognized de facto in the first protocol and de jure in the second, only because Spain bound herself not to use her authority to the detriment of our commercial interests therein. Recognition is, in the intent of the protocols, joined to the proviso that our navigation and trade in the Sulu Archipelago shall remain free from restriction and molestation, and especially so from any differential treatment. There was thus laid on the Spanish sovereignty over the Sulu Archipelago a certain limitation that has not been thrust aside by the transfer of the sovereignty to a lawful successor to Spain.

The English Government has also taken the same standpoint in the matter, for the government of the Straits Settlements colony has by its communication to the American consul-general at Singapore, printed at pages 1332–1333 of the Government Gazette of March 25 of this year (herewith inclosed with a request that it be returned), entered its protest against the United States exercising in the Sulu Archipelago any rights more extensive than those which appertained to Spain.

I have the honor to draw Your Excellency's attention to this matter, and I have no doubt that the Government of the United States will not refuse to acknowledge the rights secured to us by the respective protocols. I venture, moreover, to point out that the position of the American government of the Sulu Archipelago is in manifest contradiction of the declarations made in writing by the American Commissioners of the Peace Conference in Paris ("being the policy of the United States to maintain in the Philippines an open door to the world's commerce"), printed at pages 210, 218 of the American Congressional document, as well as of the principle of the " open door” proclaimed by the Government of the United States concerning Eastern Asia. Awaiting your kind answer, I avail myself of this opportunity to renew to Your Excellency the assurance of my distinguished high regard.

(See Doc. No. 7.)

HOLLEBEN.

If I rightly understand the note of the Imperial German ambassador, he therein advances three propositions:

1. The United States did not acquire sovereignty over the Sulu Archipelago by the conquest thereof, nor was sovereignty thereover

confirmed unto the United States by the treaty of Paris (1898), for the reason that Spain had never acquired sovereignty in said archipelago, nor was Spanish sovereignty therein recognized and internationally established.

2. The provisions of the protocols entered into by Germany, Great Britain, and Spain, of date March 11, 1877, and March 7, 1885 (Martens; Nou. Rec., 2d series, vol. 2, p. 280; vol. 10, p. 642), constituted a grant creating a perpetual easement in favor of Germany, Great Britain, and the other powers, which is a servitude upon the Sulu Archipelago, diminishes the fee thereof, and remains attached thereto.

3. If the rights secured by Germany, Great Britain, and the other powers by said protocols are not vested by a grant, then they are rights derived from a contract between the respective sovereignties of Spain, Germany, and Great Britain, which contract was in force at the time the United States acquired sovereignty over said archipelago, and the obligations of said contract incumbent upon Spain passed to and became binding upon the United States.

If these claims are advanced for and on behalf of the sovereignty of Germany and are addressed to the sovereignty of the United States, then the controversy is between said sovereignties and relates to their respective sovereign rights. Such matters pertain to the foreign relations of the United States and are dealt with by the Federal Government, acting through that Department of the executive branch to which our foreign relations are committed. If this be the situation, then, in the opinion of the writer, the questions are outside the jurisdiction of the War Department.

If these claims are advanced on behalf of an individual or a private interest, for the purpose of sustaining the exercise of an individual or private right in territory subject to the jurisdiction of the military government, which said exercise relates to the administration of government in said territory, a different situation is presented, and, in the opinion of the writer, the military government might then possess jurisdiction.

The Acting Secretary of State, in his letter to the Secretary of War, states the purpose of the reference to be "for your consideration and examination of the question raised." (Doc. No. 6.)

It is to be noted that said expression of purpose does not include "determination."

The attention of the Secretary of War is directed to this omission as being an indication that the State Department entertains the opinion that the question involved in the note of the German ambassador is not within the jurisdiction of the War Department in the sense that it is to be determined thereby.

In closing his letter the Acting Secretary says:

I shall be glad to transmit to the embassy your reply to its expression of the hope that the military orders of which complaint is made will be rescinded. (Doc. No. 6.)