Ambassador Hill to the Secretary of State.
Berlin , January 14, 1910 .
Sir: Referring to your instruction of November 3, 1909, and the confidential identic circular note proposing alternative procedure for the international prize court and the investment of the international prize court with the functions of a court of arbitral justice, I have the honor to report that I had to-day a long interview with Geheimrat Dr. Kriege, who has been charged by the German imperial secretary of state for foreign affairs with preparing the answer of the German Imperial Government.
Geheimrat Kriege informed me that his Government accepts very heartily the proposal of the United States regarding the alternative procedure, but felt doubtful regarding the expediency and the effectiveness of the method proposed for obtaining the sanction of the other powers. His position is that the reservation desired is too important and the conditions rendering it necessary are too complicated to be adequately formulated and duly agreed to without a separate protocol, and he has kindly furnished the text of a form which he considers more likely to be readily accepted by the signatories of the convention for the establishment of an international prize court. After going over the ground very carefully with him, I am of the opinion that his view is perhaps correct, and in any case I think his suggestion is worthy of serious consideration. I see no objection to the form he has proposed, and I believe it would be advantageous to accept the collaboration of the German Government, which has from the beginning been closely associated with the United States in accomplishing the ends set forth in the identic circular note. I am also of the opinion that the other foreign offices, while they might not decline to adopt the method proposed in the identic circular note, would find the form proposed by Geheimrat Kriege more in conformity with their own conceptions and usages in such cases. If the latter is considered by you adequate for our purposes, it would secure us not only the prompt acceptance but the earnest support of the German Imperial Government.
With regard to the extension of the jurisdiction of the prize court so as to include or, more exactly, to constitute an international court of arbitral justice, the German Imperial Government is in substantial accord with the views expressed by you and will continue to cooperate in accomplishing its establishment.
There are, however, some matters of detail which have been pointed out by Geheimrat Kriege which are worthy of serious consideration. One of these turns upon the compensation of the judges, for in case some but not all of the signatories of the prize court convention should accept this extension of jurisdiction, those nor favoring the court of arbitral justice, if there should be any, would not unreasonably object to having their judges occupied with its business at their expense and might not wish them to be so employed at all. The complete success of the proposal upon the lines laid down in the identic circular note therefore depends upon the absolute unanimity and good will of the signatories of the prize court convention.[Page 607]
To meet this difficulty and to assure the formation of the court of arbitral justice, Geheimrat Kriege proposed a supplementary convention, the form of which he has kindly supplied, by which the court can be formed, even if unanimity is not at first secured, by the association of a sufficient number of powers disposed to sign it, to which others may be subsequently added.
Another point to which Geheimrat Kriege attaches much importance is the possibility that some of the powers may appoint as judges in the prize court persons who are specialists in maritime law, with little acquaintance with the broader and more general aspects of international law, and who would therefore be less qualified to act as judges in the wide range of questions that might come before the court of arbitral justice. If this for any reason should be the case, the court of arbitral justice would not be satisfactorily constituted, and this fact would militate against its highest usefulness. Another consideration of importance is that if any power for any reason were disposed to object to the proposal to extend the jurisdiction of the prize court, this fact could be urged by it as an objection to the plan.
Geheimrat Kriege has proposed to meet this point by providing for the substitution of other judges, if found advisable, for the specialists who might have been appointed to the prize court, and this appears to me a valuable suggestion both for the efficiency of the court of arbitral justice and for meeting any objection under this head which might be raised against it.
There remains one other point of practical importance, namely, the brevity of the time yet remaining before the signature of the agreements should be concluded. It is evident that if pursued in the ordinary way by correspondence it would require a long time to receive, compare, and harmonize the answers of the powers to the identic circular note. Geheimrat Kriege, therefore, suggests that it would greatly facilitate the consummation of the wishes of our Government if a representative of the United States duly authorized could as soon as possible meet at some convenient point representatives of Germany, Great Britain, and France, explain the matter to them, and obtain their acceptance of the protocol and supplementary convention. With this accomplished the other signatories of the prize court could be requested to follow upon the same lines. Geheimrat Kriege would no doubt be designated for this purpose by his Government, and thus we could avail ourselves of his valuable assistance in reaching a conclusion.
I need hardly add that if a meeting with representatives of the three powers mentioned above should seem to you desirable it should be of an informal and confidential nature, with no public announcement regarding it, to the end that no other power could feel slighted. It could very conveniently, Geheimrat Kriege suggests, take place in Paris, which would not excite attention.
I inclose herewith in duplicate the forms proposed by Geheimrat Kriege and await your further instructions.1
I have, etc.,
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