Mr. Tower to Mr. Hay.
St. Petersburg, March 31, 1900.
Sir: I have the honor to acknowledge the receipt of your dispatch No. 131, of the 16th of March, 1900, in relation to the modification of the protocol for the arbitration of the whaling and sealing claims against the Russian Government.
Immediately upon receiving these instructions I went to see the Count Mouravieff, Imperial minister for foreign affairs, to whom, in a personal interview, I repeated the contents of your dispatch.
I informed him that the Government of the United States is unwilling to accept the phrase which it has been proposed to introduce into the wording of the protocol, providing that the arbitrator should be governed by the “spirit of international agreements applicable to the subject,” because the purpose of it is obscure, and, from a juridical standpoint, the phrase is objectionable for the reason that its meaning [Page 867] lacks definiition. I repeated to him also your statement, that if this provison we re adopted—
the arbitrator, in forming his decision, would be compelled to give to the spirit the substance by the formulation of a rule of conduct that would first come to the knowledge of the parties when announced by the arbitrator, a rule which, if differing from the positive law in force and governing the vessels when they were seized, could not be accepted as intrinsically just, and which, if accordant with any such positive law, it is unnecessary and superficial to embody in the agreement.
I added further that the Government of the United States wished this language made to express, more precisely than it does in its present form, what specific class of international agreements the arbitrator shall be authorized to consult in order to determine the spirit with is applicable to the subject now in hand, and that it can not be supposed that rules of law which may be recognized to-day, but were unknown then, can be given a retroactive force so as to make them apply to the occurrences which took place at a time when these rules were not yet accepted as law.
No more could any international agreement now existing be made, ex post facto, to govern the cases which relate to conditions prior to its existence. And if the spirit of international agreements is to be regarded as applicable to this subject, it must relate only to the spirit of such international agreements as were actually in force and applicable to the subject at the time when these seizures took place.
M. de Mouravieff did not question the justice of this argument. But he was still unwilling to abandon entirely the provision which allowed the arbitrator to take note of the “spirit of international agreements.”
I availed myself, therefore, of the authority given me by you in your dispatch of the 16th of March, and suggested to him that the Government of the United States will assent to the retention of that phrase, provided that the following language, in substance, be added:
But, in rendering his decision, the arbitrator shall be governed by the law actually in force and binding upon the parties to the controversy at the time when the seizures were respectively made.
I have not yet the reply to this which the minister for foreign affairs promised soon to make; but I shall not fail to communicate it to you immediately upon its receipt.
I have, etc.,