5
PUBLIC RECORD OFFICE
༔། ?། 3
Reference :-
CO. 885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
guard itself from an implied guarantee of possession which it would not have the right to require the Ottoman Government to fulfil.
That Mr. Herbert was to request us to take those observations and suggestions into our consideration, and to favour your Lordship with our opinion upon the following general questions :-
1. Has the Queen power to perform in regard to Cyprus, through her duly appointed representatives, all the acts which the Sultan could perform in regard to the island before the occupation?
[A necessary exception would seem to be the granting of permission to natives of the island to divest themselves of the Ottoman nationality.]
2. If not, is power vested in the Porte to perform such acts of Government as the Queen cannot perform, and through what channel should that power be exercised?
3. Would the acts of the British administration lawfully done, in virtue of the Ottoman law existing at the time of the occupation, be binding on the Ottoman authorities in the event of the administration of the island reverting by the terms of the Convention unconditionally to the Sultan?
4. Would acts similarly performed by the British administration, in virtue of laws validly made for the island by authority of the Queen, be binding on the Ottoman authorities in the same event?
5. In the event of the administration reverting unconditionally to the Sultan, and of the Ottoman authorities not being bound by the lawful acts of the British adminis- tration, would Her Majesty's Government be liable for compensation to persons damnified through the Ottoman authorities not abiding by the acts of the British administration if Her Majesty's Government had not, on performing those acts, given full notice and warning that the Ottoman authorities would not be bound by them?
6. On a similar reversion of the administration, but in the event of the Ottoman authorities being bound by the lawful acts of the British administration, would Her Majesty's Government be liable for compensation to persons damnified by the failure of the Ottoman authorities to recognise those acts as binding?
And also on the following particular questions :-
7. In view of the 7th article of the Ottoman Mining Code, already noticed in Mr. Herbert's letter, can the High Commissioner in the name of Her Majesty lawfully grant a lease of mines in Cyprus otherwise than for a term of 99 years?
8. Do we in view of the further information laid before us in that letter adhere to the opinion that the mining leases to Messrs. Linklater and Gardiner (amended if necessary to a term of 99 years) would not be binding on the Ottoman authorities, and if so, should a clause be inserted in it limiting its duration to that of the British administration of Cyprus?
That in view of the importance to the administration of the island of the questions submitted to us Mr. Herbert was to express your Lordship's wish that they might receive our early attention.
That copies of the papers which were transmitted to us in Sir Julian Pauncefote's letter of the 31st of July last were therewith returned to us for convenience of reference.
In obedience to your Lordship's commands we have the honour to
Report
That the answers to your Lordship's questions must, we think, depend upon the construction to be put on the Convention of the 4th June 1878, the Annex to that Conven- tion of the 1st July 1878, and the Supplementary Agreements of the 14th August 1878 and the 3rd February 1879.
The circumstances of our occupation of the island of Cyprus are so peculiar that we do not think much assistance can be derived from any general principles of inter- national law to be found in the text writers or other authorities.
Under the terms of the agreements between this country and the Porte, the island of Cyprus is upon the happening of a certain event to be evacuated by England, and all the rights acquired by her under the agreements are to cease. But until that event happens England possesses in the island complete and uncontrolled powers both of legislation and administration. And during the period of occupation the revenues of the island are to be received and enjoyed by England subject only to an annual payment to the Porte. The produce of State and Crown lands let or sold were originally excluded from the revenues of the island thus assigned, free power being reserved to the Porte to sell and lease lands and other property in Cyprus belonging
to the Ottoman Crown and State. 3rd, 1879 the property, revenues, and rights so reserved to the Ottoman Crown and But subsequently by the Agreement of February Government were" commuted" for a fixed annual payment of 5,000l. to be made by Her Majesty's Government to that of the Sultan. The language of this Agreement is peculiar, but we think its effect must be held to be not merely to put an end to the right of the Porte to sell and lease State property in Cyprus, but to confer upon this country the right to sell and lease such property in the ordinary course of the administration of the island, and in accordance with the existing Ottoman laws and regulations governing such matters, or the laws or regulations which may from time to time be substituted by legislation.
Having thus stated generally the conditions by which our occupation of the island, and our powers in relation thereto are, as we think, regulated, we proceed to answer the several questions submitted to us.
1. We think the Queen has power, so long as the occupation lasts, to perform in regard to Cyprus, through her duly appointed representatives, all the acts which the Sultan could perform with regard to the island, subject of course to those limitations which the constitution of this country imposes upon the sovereign and to the exception suggested at the end of the question.
2. We are of opinion that, subject to the above exception, no power is vested in the Porte to perform acts of government in the island so long as the British occupation lasts. 3 and 4. We think the acts of the British administration lawfully done, whether in pursuance of the Ottoman law existing at the time of the occupation, or in pursuance of laws validly made for the island by authority of the Queen, would be binding on the Ottoman authorities in the event of the administration of the island reverting by the terms of the Convention unconditionally to the Sultan. We mean by this that the Ottoman authorities would not be justified in treating such acts as illegal or invalid. But inasmuch as complete and uncontrolled legislative power would then revert to the Sultan, it would of course be competent for him by virtue of such power (subject to diplomatic representation on the part of Her Majesty's Government) to abrogate or limit in the future any rights acquired through the acts of the British administration.
5. On the hypothesis put, we are of opinion that Her Majesty's Government would not be liable to compensate persons damnified through the Ottoman authorities not abiding by the acts of the British administration, even though Her Majesty's Govern. ment had not, on performing those acts, given full notice and warning that the Ottoman authorities, would not be bound by them.
6. On a similar reversion of the administration, and assuming the Ottoman autho- rities to be bound by the lawful acts of the British administration, we think that Her Majesty's Government would be bound to insist, in the interest of persons damnified by the failure of the Ottoman authorities to recognise the acts of the British administration, that the Ottoman authorities should so recognise them. And though
Her Majesty's Government, in case they should fail to procure such recognition, would not, we think, strictly speaking, be liable to compensate persons damnified, those persons would have a claim for consideration which it might be difficult to resist.
7. Considering the terms of the 7th article of the Ottoman Mining Code, we think that the High Commissioner cannot, until the law has been altered by an Order in Council, lawfully grant a lease of mines in Cyprus otherwise than for a term of 99 years.
We may add that it might be desirable by Order in Council to provide that some particular instrument (as, e.g., a lease executed by the High Commissioner in the name of Her Majesty) should be substituted for the imperial "Irade."
8. In view of the further information laid before us, we desire to modify to some extent the opinion expressed by us with reference to the mining lease to Mesars. Linklater and Gardiner. We think that if that lease were for a term of 99 years, which is the present legal term, and conformed in other respects to the law now exist- ing in Cyprus, it would be binding on the Ottoman authorities as a lawful act of administration. But it would be subject on the Sultan becoming repossessed of Cyprus to his Sovereign power of legislation, and he might, as we have already pointed out, by virtue of such power, abrogate or limit the rights acquired under it.
We have, &c.,
'The Right Hon. the Earl of Kimberley,
&c.
&c.
&c.
(Signed)
+
HENRY JAMES. FARRER HERSCHELL.
J. PARKER DEANE.