Mr. Hay to Mr. Tower.

No. 150.]

Sir: I have received your dispatch No. 214, of the 14th ultimo, relative to the protocol for the arbitration of the whaling and sealing claims, in which you transmit a copy of the reply of the Russian Government to your note, wherein you stated that this Government would assent to the inclusion in the protocol of the phrase “the spirit of international agreements” on condition that the following 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.

Count Mouravieff states that his Government does not hold it to be necessary to add the language proposed in your note, 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,” he continues, “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.” He adds that his Government is so solicitous of maintaining in practice this view that it “must insist upon the complete independence of the arbitrator’s judgment,” and that it is impossible for his Government “to enter in advance into an examination of the specific grounds upon which the arbitrator shall render his final decision.”

Count Mouravieff’s note conveys the impression that this Government is seeking to restrict the liberty of action of the arbitrator. As you are well aware, the reverse is true. The draft of the protocol originally proposed by this Government in June, 1899 (see your dispatch No. 84, of August 29, 1899), provided for the submission of the claims to the decision of the arbitrator without any restriction or qualification. The Russian Government, in its counterdraft of August 12, 1899, embodied the following language:

In his decision the arbitrator, following the general principles of international law and the spirit of international agreements bearing upon the subject, shall determine as to each claim, etc.

After some discussion between the two Governments in relation to the phrase “the spirit of international agreements bearing upon the subject,” this Government objecting to its inclusion without modification or explanation, and the Russian Government insisting that it be included in the form proposed by it, this Government proposed to strike out also the words “following the general principles of international law,” so that it should read:

“The arbitrator shall determine as to each claim,” thus submitting the matter unreservedly to the judgment of the arbitrator.

The Department is at a loss to understand the attitude taken by the Russian Government in this matter. It has declined to accept the proposition of this Government to refer the claims to the arbitrator leaving the matter absolutely to his decision, without qualification, and it refuses to eliminate or in any way modify or explain the qualifying phrase proposed by it, which clearly restricts the liberty of action of the arbitrator. And the reason assigned by the Russian [Page 872] Government for its refusal to assent to the modification by this Government is its desire to maintain the complete independence of the arbitrator.

You will point out to the Russian Government the apparent inconsistency of the position assumed by it. You will inform Count Mouravieff that the Government of the United States does not find the reasons advanced by His Majesty’s Government sufficient to justify its assent to the inclusion of the phrase “the spirit of international agreements” without the addition of some such language as that proposed in your last note. At the same time you may inform him that your Government will, as it has heretofore proposed, agree to the omission of all the language in the paragraph of the protocol under discussion which restricts the freedom of action of the arbitrator. This would leave the matter absolutely to the judgment of the arbitrator without limitation, and would thus meet the view advanced by Count Mouravieff. In view of the insistence of the Russian Government upon the complete independence of the arbitrator’s action, it is not perceived how it can refuse to assent to this proposition.

In response to your suggestion concerning the language of intercourse during the proceedings before the arbitrator, I would refer you to Mr. Peirce’s dispatch No. 139, of October 30, 1899.

The Department would suggest that you informally ascertain, so far as practicable, from the diplomatic representative of Great Britain at St. Petersburg, the status of the negotiations for settlement by arbitration similar claims of British subjects against the Russian Government, and whether a similar stipulation is embodied, or proposed to be so, in any agreement or arbitration.

I am, etc.,

John Hay.