Mr. Peirce to Mr. Hay.
St. Petersburg, October 30, 1899.
Sir: In continuation of my dispatch No. 134 of the 27th instant, in relation to the protocol of arbitration on the seizure of American vessels by the Russian authorities in the Bering and Okhotsk seas, I have [Page 858] the honor to confirm my telegram1 of this date a copy of which please find appended on the overleaf.
Immediately upon the receipt of your telegram of the 26th of October, 1899, instructing me to endeavor to secure the omission of the phrase “and the spirit of international agreements bearing upon the subject” in the fifth paragraph of the second page of the Russian draft, I requested a further conference with Professor de Martens and received from him an appointment for this afternoon.
I found Professor de Martens, as I had anticipated, very loath to omit the provision to which you have taken exception, and he desired to know what I would propose to substitute for it. I replied that my Government desired its entire omission from the protocol without substitution of any provision of that nature, and I then asked him what purpose its retention could serve. He replied that it was intended for the guidance of the arbitrator in order that it might be understood that not the text-books on international law alone were to be considered as defining the principles of international law, but that the treaties between Governments should be recognized as one of its sources and one of the most important expressions of its principles.
I pointed out to Professor de Martens that in the choice of Mr. Asser as the arbitrator both Governments had been animated by the desire to refer the question to an unimpeachable authority upon international law, so that a decision might be arrived at in these cases in which absolute equity might, so far as possible, conform to the soundest theories of international rights, and that having, as we both believed, such an authority in Mr. Asser, it seemed to me unnecessary to instruct him as to the principles necessary for his guidance, but that we might with confidence leave the matter to his sound judgment, together with all the other and various points involved. This argument, touching as it did an “esprit du corps” which must of necessity exist between Professor de Martens and Mr. Asser, not only as high authorities upon their special subject, but as colleagues in their profession, seemed to produce the desired effect upon Professor de Martens’s mind, for he at once admitted its force and agreed with me that the provision in question might safely be omitted from the protocol.
We then entered upon the subject of the language of the protocol, proceedings, and decision of the arbitrator. I had feared that the Russian Government, following their recent departure in regard to official communications, would insist upon the use of the Russian language for the protocol as official for them, to be accompanied by a translation into French, which should be of an unofficial character, and that it might be necessary for us also to accompany our memoranda with translations into French. Professor de Martens, however, assured me that Mr. Asser speaks and reads English fluently and correctly. I presume that he has not the same command of Russian, and that it was for these reasons that the professor proposed that throughout the arbitration, including the draft of the protocol, the official language for our side should be English and that of the Russian side French, and that the drafts of the two protocols should be carefully compared in order that it may be estsblished that the sense and force of each is identical with the other.
I asked Professor de Martens what, if any, steps had been taken on the Russian side to inform Mr. Asser of the proposal to invite him to [Page 859] arbitrate the cases. He replied that nothing had been done, and stated that it was important that the two Governments act simultaneously and in complete unison, at the same time providing against an embarrassing refusal by, as a preliminary, informally, but semiofficially, posing the question as to whether or not Mr. Asser can and will act in the desired capacity. It was Professor de Martens’s opinion that this should also be done simultaneously by both Governments, and to this end he requested me to ask of you to instruct our representative at The Hague to go to the minister for foreign affairs at that capital upon a certain fixed date, such date to be in the near future, but affording sufficient time for the Russian Government to instruct its representative there to do the same and upon the same day, and to further request of you to notify this embassy by telegraph what the date will be in order that we may inform the imperial foreign office, and for our representative to verbally ask of the minister of foreign affairs that he inquire of Mr. Asser whether he will consent to act as arbitrator in the premises. Accordingly I have the honor to submit the above request.
Upon receipt of an affirmative answer to this informal inquiry it is Professor de Martens’s opinion that notes should be drawn up by both of our Governments formally inviting Mr. Asser to arbitrate the disputed claims, and, to the end that the terms of these notes should be identical, that they be carefully compared before transmission, and that thereafter dates of mailing be agreed upon in order that they may arrive as nearly simultaneously as possible.
I have now the honor to inclose a copy of the amended draft of the Russian protocol for your approval, it being understood between Professor de Martens and myself that this amended draft is not to be considered as final until it has received the sanction of our respective Governments.
In the telegrams which have passed between the Department and the embassy the fifth paragraph on the second page has been, by an oversight, erroneously described as the fourth on the same page.
Submitting the above for your approval, I have, etc.,
- Printed ante.↩