Mr. Peirce to Mr. Hill.

No. 134.]

Sir: Referring to your dispatch No. 89 of September 28, 1899, I have the honor to confirm my telegram1 of October 23 last, a copy of which I append on the overleaf.

[Page 856]

I had mentioned the matter of the protocol for the arbitration of the Bering Sea cases to Count Lamsdorff, urging upon him the importance of arriving at a decision on the subject at an early date and requesting a discussion of certain points relative thereto in order that the matter might be finally adjusted without unnecessary delay.

Count Lamsdorff was good enough to refer me to Professor de Martens, counsel for the ministry of foreign affairs, who was expected back to St. Petersburg shortly, the Venezuela board of arbitration, of which he was the president, having finished its sittings. The count stated that, as Mr. Martens would in fact determine the position of the Imperial Government in the affair, the most expeditious means of arriving at an agreement would be to come to an understanding with him as to the form and wording of the protocol.

Accordingly, on Saturday last, the 21st instant, I had, by appointment, an interview with Professor de Martens and went over with him the whole matter in detail.

I found him immovable regarding the question of the argument of the cases before the arbitrator by counsel. He stated frankly that, were such course to be adopted, the minister would request him to name suitable counsel and that he really did not know of anyone whom he could recommend to act in that capacity; that the whole system of Russian education is such that the men at the disposal of the ministry are unaccustomed and unfitted for the oral presentation or argument of such questions, and that he could not see his way clear to assent to the procedure indicated in the ambassador’s draft of the protocol, but he suggested, as tending to materially shorten the duration of proceedings, that each side be limited to a memorandum and a contramemorandum unless further argument should be called for by the arbitrator for his further enlightenment.

As Mr. de Martens’s views on this subject seemed to be fully fixed, and as in your dispatch above referred to you expressed no special preference for one mode of procedure proposed over the other, I deemed it in the interests of dispatch not to further press for the adoption of the ambassador’s draft as a basis.

We then took up the Russian draft of the protocol, and I pointed out that in the first paragraph of that document the Cape Horn Pigeon should not be described as a schooner engaged in fur sealing, but as a bark engaged in whaling. This was at once assented to, as was the striking out of the words “in the said schooners” at the end of the second paragraph; the insertion of the following paragraph after the fourth paragraph on the second page:

The arbitrator shall render his decision in all the cases within six months from the date of the delivery to him of the last memorandum provided for in this agreement.

The omission of the closing words of the last paragraph on the second page, “in the said vessels;” the insertion after the word “matter,” in the last paragraph, of the words “to pay one-half of the compensation of the arbitrator for his services;” and the addition of a provision to read as follows:

Any amount awarded by the arbitrator in favor of the claimants, or either of them, shall be paid by the Government of Russia within one year from the date of the award.

With regard to the omission of the words “and the spirit of international agreements bearing upon the subject,” which you have taken exception to in your dispatch above quoted, Professor de Martens [Page 857] expressed himself as decidedly favoring their retention, but suggested modifying them by the insertion of the word “general” before “spirit” and the addition of an explanatory phrase to the following effect:

but no special agreement between governments shall be considered as applicable to the principles herein involved.

This suggestion was made by him, upon my pointing out to him that such an agreement as that existing between Russia and the United States prohibiting the hunting of seals within a zone of 30 nautical miles of Commander Islands might exist between Russia and other countries, but that the Government of the United States could not recognize any such agreements as bearing upon the cases in question. He replied that such an agreement did exist with Great Britain, but that this was a special agreement, as were all agreements of that nature, and that the modifications he suggested would exclude all such. I am aware that this leaves an undesirable element of vagueness, but as Professor de Martens seems to attach importance to the retention of the wording, indicating that in the guidance of the arbitrator the books upon the subject of international law are not alone to be relied upon, I consented to submit the modified phraseology to you for your decision.

If the desire of the Russian Government in the retention of this expression is only to include it for the guidance of the arbitrator, it is not, perhaps, improbable that they would agree to the following wording of the entire paragraph:

In his decision, which shall be communicated by him to each of the two Governments interested, the arbitrator, following the general principles of international law and the spirit thereof as defined in international agreements bearing upon the subject, it being understood that special agreements between Governments are not applicable to the principles herein involved, shall determine as to each claim brought against the Imperial Government of Russia whether such claim is well founded, and if he decides affirmatively, whether the facts upon which said claim is based have been proven, and the decision of the arbitrator thereon shall be final, both as regards the claims and the principles determining his judgment.

Submitting the above for your approval, I have, etc.,

Herbert H. D. Peirce.
  1. Printed ante.