Mr. Tower to Mr.
Hay.
Embassy
of the United States,
St.
Petersburg, April 14,
1900.
No. 214.]
Sir: Subsequently to my conversation with the
Imperial Russian minister for foreign affairs, the purport of which I
had the honor to communicate to you in my dispatch No. 206, of the 31st
of March, relating to the modification, in the proposed protocol for the
arbitration of the whaling and sealing claims against the Russian
Government, of the phrase “and of international agreements applicable to
the subject,” I addressed to the Count Mouravieff, on the 29th of March,
a note of which I respectfully inclose a copy herewith.
I repeated in that note, as he had requested me to do, the objections to
that phrase expressed by you on account of its lack of definiteness, [Page 868] and 1 called his attention
once more to the unwillingness of the United States Government to accept
a provision of the agreement to arbitrate which was so obscure of
purpose as this, or to bind itself by an expression which left it quite
uncertain from our point of view what specific kinds of agreements are
to be held to be applicable.
I argued also that it could not be supposed that either international
agreements subsequently made, or principles of international law
subsequently accepted as such, could be made retroactive and applicable
to the cases in hand if they were not in existence and not recognized at
the time when the seizures of these vessels actually took place.
But I offered, under the authority already given to me by you, of which I
had availed myself previously in my personal interview with the minister
for foreign affairs, to accept the phrase on behalf of the United States
Government, provided the following language, in substance, should 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.
On the 22d of March (4th of April) M. de Mouravieff replied to me by a
note, of which I have the honor to inclose to you a copy herewith.
He declares, as you see, that, while the Imperial Government appreciates
the readiness of the United States to admit the phrase now under
discussion, since “it is undeniable that the arbitrator must be governed
by such international agreements as he may consider applicable to the
subject. The Imperial Government does not hold it to be necessary to
make the addition proposed,” because, in the opinion of the Government,
“it is important to avoid going into any detailed specification as to
what agreements the arbitrator shall base his decision upon, in order
not to restrict in the least his freedom of judgment, which is to be
considered in law and in fact as absolute.”
The Russian Government is thus exceedingly tenacious of its point of
view, and has again refused to accept any modification of this
objectionable phrase, even upon the liberal basis upon which we have
offered to treat; for you will recall the fact that before proposing the
perfectly just qualification, that no international agreements shall be
given a retroactive force in order to make them applicable in the sense
here understood, we have offered heretofore to cut out the phrase
entirely, and leave the decision to the learning and wisdom of the
arbitrator without any qualification whatever.
We are met now, however, by the objection that we must not restrict the
freedom of judgment of the arbitrator. And I regret to say that we are
again temporarily held in check, and unable to take up the more
important questions of the arbitration and the arguments of counsel for
the parties in interest and the Government itself.
I do not despair, however, even yet, of reaching ultimately an agreement
as to this small and troublesome difference which shall be satisfactory
to both participants in the controversy; and I shall confer with the
imperial minister of foreign affairs immediately to that end.
I beg leave in the meantime to report to you the exact position of the
matter to-day.
And in this connection I venture to suggest that as this question has
developed to such an extent that it has attained the proportions of an
international litigation, and is so regarded by the Russian Government,
the Government of the United States will of course so consider it and
[Page 869] so direct the proceedings
of the arbitration. These cases are likely to be argued with very great
skill upon the Russian side—the note, of which I inclose a copy
herewith, may serve to forecast this—and, while I have no information as
to whom the Government intends to select as counsel to watch the
interest of the United States, I trust I may not be going too far if I
refer to the necessity of intrusting that duty to an international
lawyer whose skill and experience in matters of this kind may enable him
to face any adversary he may encounter in the course of this
contest.
Another point to which I ask permission to refer is the adoption of
French as the language of intercourse during the proceedings before the
arbitrator. I have reported to you heretofore the request of the Russian
Government that this should be done, but as yet I have not received your
reply in regard to it. There can be no doubt that by adopting the French
language the progress of the arbitration will be greatly facilitated;
for if we insist upon making our arguments in English—which of course we
may do—the Russian arguments will all be sent to us in Russian, a not
very agreeable anticipation for the counsel either of the Government or
of the respective individual parties in interest.
I have, etc.,
[Inclosure 1.]
Mr. Tower to
Count Mouravieff.
Embassy of the United States,
St Petersburg, March 16 (29), 1900.
Excellency: In compliance with your request
made yesterday when I had the honor to discuss with you the question
of the form of protocol intended to be used in the arbitration
between the Imperial Russian Government and that of the United
States in regard to the seizure of certain American vessels, I beg
leave to confirm what I then announced to your excellency, that the
Government of the United States, appreciating the willingness of the
Imperial Government to adopt the principle of arbitration in this
case, which it regards as one of the most auspicious steps recently
taken in the interest of peace and justice among nations, earnestly
hopes that the slight difference of opinion as to one phrase in the
language of the protocol may be speedily adjusted to the complete
agreement and satisfaction of both high contracting powers.
This phrase, as your excellency will remember, is that which provides
that the arbitrator, in giving his judgement upon the questions
submitted to him by the parties in interest, shall take note of the
rules of international law, and also of the “spirit of international
agreements applicable to the subject.”
The Government of the United States, upon mature consideration of the
protocol which I had the honor to transmit to Washington in
accordance with your excellency’s request, regards this phrase as
not sufficiently definite in meaning. It would have 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 which is
applicable to the subject now in hand.
I have already had the honor upon several occasions to call your
excellency’s attention to this wish of the United States
Government.
I venture to believe that your excellency has been constantly in
accord with me in the discussion of the principles here involved, in
so far, at least, as to agree that, in considering the questions of
law submitted to him in this arbitration, the arbitrator must take
cognizance of the rules of international law as they existed at the
time when the seizures of the vessels occurred.
It is not understood 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 [Page 870]
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, I have the honor to
submit to your excellency that it must apply 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.
This is the view taken of the question by the Government of the
United States, which I venture to believe does not differ in
principle from that of your excellency.
I have already had the honor to propose in my note addressed to you
on the 29th December, 1899 (12th January, 1900), that the phrase
relating to the “spirit of international agreements “might be
eliminated entirely from the language of the protocol. But as the
Imperial Government has hitherto insisted upon the retention of that
provision I beg to suggest that the Government of the United States
will assent to its inclusion on condition 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 avail myself, etc.,
[Inclosure 2.]
Count Mouravieff to Mr. Tower.
(Translation.)
Imperial Ministry for Foreign Affairs,
First Department, March 22 (April 4), 1900.
No. 1652.]
Monsieur l’Ambassadeur: I have had the
honor to receive your excellency’s note of the 16th (29th) of March
announcing the acceptance by the Government of the United States of
the clause suggested by the Russian Government, in the protocol for
the arbitration relating to the seizure of the American schooners,
which provides that the arbitrator shall be governed by the general
principles of international law and by international agreements
applicable to the subject, but asking, at the same time, that the
following language shall 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.”
The Imperial Government appreciates highly the spirit of justice with
which the Government of the United States has embraced the
opportunity to admit into the text of the protocol the passage
setting forth expressly, as one of the bases of the arbitrator’s
decision, the principle, which appears to be unquestionable, that
the arbitrator shall be governed by such international agreements as
he may consider applicable to the subject.
But the Imperial Government does not hold it to be necessary to add
the language proposed in the note of the 16th (29th) March, because,
in its opinion, it is important to avoid any detailed specification
of the international agreements upon which the arbitrator shall base
his decision, in order not to restrict in the least his liberty of
action, which ought to be, in law and in fact, absolute.
This was the view of the character of an arbitrator called upon to
decide international differences which was taken at the peace
conference held last year at The Hague.
The Imperial Government is solicitous to such a degree in maintaining
in practice this view that it must insist upon the complete
independence of the arbitrator’s judgment and upon the high station
reserved for the arbitrator himself, charged as he is by the
confidence of both parties to settle the differences which have
arisen between them.
We hope, therefore, that these reasons will not escape the
enlightened judgment of the United States Government, and that it
will appreciate the circumstances which have made it impossible for
the Imperial Government to enter in advance into an examination of
the specific grounds upon which the arbitrator shall render his
final decision after having heard the arguments presented to him by
the parties on both sides.
I avail, etc.,
