Ambassador Reid to the Secretary of State.

No. 1180.]

Sir: Referring to the department’s identic circular note of the 3d of November last on the subject of alternative procedure for the international prize court and the investment of this tribunal with the functions of a court of arbitral justice, which I had the pleasure of communicating to the British Government on November 18, 1909, I now have the honor of inclosing herewith the reply of Sir Edward Grey to the proposal of the United States, the substance of which I have cabled to you in brief to-day.

I have, etc.,

Whitelaw Reid.

The Minister for Foreign Affairs to Ambassador Reid.

Your Excellency: His Majesty’s Government have given their most careful attention to the proposals contained in the circular note of the Secretary of State of the United States, which your excellency communicated to me in your note of the 18th November last. I regret that owing to the many matters of urgent political importance which have been of late claiming the attention of His Majesty’s Government I am only to-day in a position to reply to that communication.

The proposals of the United States Government have reference to two distinct matters. As regards, in the first place, the question of providing for an alternative method of procedure in cases brought before the international prize court which is be set up at The Hague, I have pleasure in informing your excellency that His Majesty’s Government, attaching as they do the greatest possible weight to the inclusion of the United States in the number of countries accepting the jurisdiction of that court and recognizing the fundamental nature of the constitutional difficulty in which the United States might find themselves placed by the acceptance en bloc of the stipulations of the prize court convention of The Hague of 1907, are ready, on their part, to cooperate for the purpose of removing that difficulty.
It is perhaps a question whether the particular method of proceeding by way of a reservation to be introduced into the ratifications of the prize court convention might not give rise to some practical difficulties. A reservation of this kind would admittedly require the assent of the signatory powers to the rights therein stipulated ‘or, and it seems to His Majesty’s Government that such assent might with advantage be recorded in a more direct and conventional form. Apart from this question of form, there are some minor yet not unimportant points respecting which it would seem desirable to make more specific provision than is done in the reservation as corded in the circular note, such, for instance, as the exact manner in which, under lie alternative scheme, the reference of individual cases to the international court it the proper moment, and an automatic transfer of the records, shall be guaranteed.
Having regard to the eminently beneficial results of the former cooperation in his matter between the four powers which at the second peace conference jointly put forward the proposals eventually adopted for the establishment of the international prize court, I venture to suggest, for the favorable consideration of the United States Government, whether a meeting could not be arranged between representatives of the United States, France, Germany, and Great Britain with a view to their jointly considering the wording of the proposed reservation or declaration. The United States Government will no doubt agree that a personal conference between experts would be likely to lead to a satisfactory result more easily, more quickly, and more surely than would an attempt to settle a text by the more cumbersome method of diplomatic correspondence.
A matter of greater complexity is raised by the second proposal put forward in the circular note. The proposal is definitely to establish the judicial arbitration court which formed the subject of a vœu of the second peace conference, and to do so [Page 609] by means of a declaration of reservation, which the powers who so desire may include in their ratification of the prize court convention, authorizing the international prize court to transform itself into and act as a judicial arbitration court, in accordance with the provisions of and with due observance of the procedure laid down in the draft convention for the establishment of such court annexed to the vœu.
The United States Government will not, 1 believe, require of me any fresh assurances as to the genuine and active interest which His Majesty’s Government have taken, and continue to take, in the plan of setting up a really permanent and definitely constituted tribunal for the adjustment of international differences. They share the belief of the United States Government that the principal nations of the world are beginning to feel the want of a true international law court that is of a jurisdiction to which disputes can be submitted without the preliminary difficulty of constituting the tribunal in each case and agreeing upon its attributes, composition, and procedure. Holding this view, they are, as they have been in the past, not merely willing but anxious to cooperate to the best of their ability to the end of creating such a court. The British delegates at the second peace conference were unremitting in their efforts to secure the general adoption of a scheme in whose elaboration, indeed, they had, under the instructions of their Government, taken an honorable part side by side with their colleagues of the United States, France, and Germany. The scheme, as is well known, only failed because no acceptable solution could be found of the difficulty caused by the claim of the overwhelming majority of the powers that all independent States should be equally represented on the bench of judges.
It will be remembered that a similar difficulty very nearly wrecked the convention for the establishment of an international prize court. I need not recapitulate the prolonged negotiations and discussions which were needed to secure its acceptance by The Hague conference. The chief consideration, there is no doubt, which finally prevailed, and by which the assent of the less favored nations was gained to a scheme departing in a measure from the principle of equality of representation, was the direct and important advantage to every power to obtain that effective means of protection for its interests as a neutral which flows from the right to carry before an international court of the highest integrity and impartiality appeals from the national courts of belligerents. Whilst gaining this clear advantage, it was recognized that States not possessing large naval forces, though equally interested in the protection of their commerce when neutral, were less likely to have their belligerent actions affected by the authority of an extra-national tribunal. It was, moreover, found possible substantially to redress in practice the unavoidable element of inequality by providing that in the event of a power not at the moment represented on the bench of judges being a party, as a belligerent, to a case before the court such power should, for the time and purpose of the proceedings in that case, invariably have its own judge on the bench of the tribunal.
These considerations were successful in overcoming the reluctance at first felt by many of the powers to accept the prize court convention, but they were not of a nature to influence their attitude of opposition to the convention for the establishment of a judicial arbitration court, because in this case the circumstances were seen to be essentially dissimilar. There was in fact no particular inducement to the majority of the powers to submit in all those matters of a general character which may properly become the subject of international arbitration to the jurisdiction of a court the composition of which was held by them to be derogatory to their dignity. In all such matters it was felt that each one State had as much to lose as another, and the preponderance of the great powers on the bench of the court, to which objection was taken, appeared to be set off by no countervailing special advantages rendering such an arrangement acceptable on grounds of political expediency. An effort was made by the subcommittee which prepared the draft convention to devise a scheme of proportional representation which, since it did not need, as in the case of the prize court of appeal, to take into account the comparative maritime standing of the respective States, could apportion the degree of representation of each more closely to its relative general position in the community of nations. But although His Majesty’s Government on their part see no reason to call in question the essential justice and fairness with which this embarrassing and ungrateful task was carried through by the subcommittee, the difficulty of securing general acceptance for any classification, however reasonable, of the powers according to their degree of importance proved at the time insuperable.
The impression derived by His Majesty’s Government from the record of the discussions at The Hague was that unless in some way not at present clear to them the principle of equality of representation could yet be introduced into the scheme [Page 610] of the judicial arbitration court, that scheme would continue to meet with the same hostility; nor has any information since reached His Majesty’s Government tending to indicate any change of disposition on the part of the powers in this respect.
This difficulty the United States now propose to get over by adopting for the judicial arbitration court the particular system of proportional representation which is to prevail in the international prize court. Having regard to the fact that this system was only reluctantly, and not without a number of reservations, agreed to in respect to the latter court for special reasons, which do not apply to the case of a general arbitration tribunal, and seeing, moreover, that it is in many respects actually less favorable to the large and important proportion of the powers which declined to accept even the more advantageous plan of representation of the original draft convention for the establishment of a judicial arbitration court, His Majesty’s Government can not but apprehend that the proposal in its present shape is likely to encounter opposition in the same quarters.
The United States Government appear to anticipate that this oppposition maybe effectively disarmed by the fact that their proposal “does not involve the modification either of the letter or the spirit of the draft convention, nor would it require a change in wording of any of its articles.” This is no doubt correct, but it is equally true that without some additional stipulations in the place of the clauses which, in the original draft, regulated the composition of the court, the convention recommended by the second peace conference could not become operative, as is indeed explicitly said in the words of the vœu of that conference. This position of the case is to some extent veiled, but is not really altered by proposing to relegate such complementary provisions to a different instrument not formally connected with this particular convention, namely the ratification of another and altogether distinct convention, treating of a court to be established for an entirely and specifically different purpose. When it is realized that the provisions to be so introduced are in principle the same as those which had to be excised from the original scheme as the price for agreement on the remainder, it seems to His Majesty’s Government difficult to feel assured that the powers which refused every plan of proportional representation at The Hague will now be found ready to accept a less favorable version of it without raising further difficulties.
His Majesty’s Government earnestly hope that should such difficulties arise they may be overcome by further diplomatic negotiation with the powers concerned. But so long as there is uncertainty as to the immediate success of such efforts they doubt whether it would, be politic to link together too markedly and too closely the scheme of a judicial arbitration court with the prize-court convention. It appears to them that there would be a serious danger of thereby alienating the sympathies of a number of important powers from the international prize court itself, which they might be led to look upon as an instrument for forcing upon them the definite relinquishment of their claim to be treated on a footing of general equality with all the other members of the community of nations. Allusion has already been made to the extreme reluctance with which they agreed to waive this claim in respect to the particular case of representation on the international prize court. If a suspicion should be engendered in their minds that the concession which they were ready to make for an exceptional and strictly defined purpose is to be extended so as to become a rule of more or less general application and a precedent for the abandonment of the cherished principle of equality on other occasions and in more far-reaching questions, they might be impelled to reconsider their attitude in regard to the prize court convention and rather to forego the advantages which its establishment would confer than to suffer what they would regard as a derogation from their national dignity.
The ratification of the prize-court convention by as many powers as possible is a matter to which His Majesty’s Government attach the very greatest importance, and they venture to think that the general acceptance of the jurisdiction of the international prize court would for the United States Government also have a value out of all proportion to the risk of losing the adherence of a large number of states—a risk which would attend any attempt to set up the judicial arbitration court on the basis proposed before the prize-court convention had been actually ratified by a substantial proportion of the countries whose representatives accepted it at The Hague in 1907.
No doubt the great naval powers, with perhaps the support of a few others which may feel satisfied with the degree of representation allotted to them in the international prize court, would be able between them to set up the judicial arbitration court on the lines proposed by the United States Government, but this might involve the indefinite, if not permanent, exclusion of most of the other powers. His Majesty’s Government are not unmindful of the fact that the court might, by the reduction in the number of judges, gain in strength and efficiency what it would lose in representative character and in geographical extent of jurisdiction, and they do not wish to be understood absolutely to reject such a plan. But before proceeding to adopt a course which appears to [Page 611] them only too likely to preclude the participation of a large majority of states, they would have liked to feel assured that there was in fact no other means of attaining the desired end, and that every effort had been made to arrive at an understanding. They are somewhat reluctant to admit that every possibility of devising a method of constituting the court that should find favor with all the powers has as yet been exhausted, and that the last word has been said on the subject. Hoping as they do that a new plan might yet be discovered, answering to the acknowledged requirements without running counter to principles largely held to be vital, they feel that now to take up a scheme which does not command general assent may be considered by a majority of nations to prejudice any chance of a more satisfactory result being attained at a third peace conference.
I can not conceal from your excellency that for these reasons His Majesty’s Government would have preferred that the several powers should, in anticipation of such a conference, endeavor to think out and submitto the practical test of elaboration in detail schemes which they themselves would be willing to accept, in the expectation that a comparison, or perhaps a partial fusion, of such schemes might help to bring in sight a workable general agreement. His Majesty’s Government were the more disposed to favor this course because further consideration of the draft convention recommended by the second peace conference, combined with a study of recent political developments within the British Empire, has induced a doubt whether the requirements of this country could be quite suitably met by a scheme which makes it impossible to take account of the special position of the British self-governing colonies and possessions in cases of arbitration where the subject-matter in dispute affects important colonial interests.
Seeing, however, the value which the United States Government clearly attach to a more speedy realization of the scheme for setting up a permanent arbitration tribunal, and their confidence in the possibility of successfully meeting the difficulties involved, His Majesty’s Government do not wish to stand in the way of any effort to carry out the recommendation of the second peace conference on the lines favored by the United States, so long as the general ratification of the prize-court convention is not thereby jeopardized, and so long as no other solution presents itself. I need not reiterate the objection which, from this point of view, militates against using the instrument of ratification of that convention as the means of setting in motion the machinery of the judicial arbitration court. Independently of that objection it would also, in the opinion of His Majesty’s Government, be necessary to make separate provision in regard to a number of points in respect to which the analogy of the corresponding stipulations in the prize-court convention is not sufficiently precise, and on which, accordingly, the articles of the draft convention for the establishment of a judicial arbitration court would require to be supplemented. This is the case, for instance, as regards the representation on the bench of judges, as a matter of course, of any power that may be a party to a dispute brought before the court.
It seems to His Majesty’s Government that the most satisfactory method of dealing with these technical matters of form might well be discussed in the first instance by the expert representatives of the four powers which were responsible for the preparation of the original scheme. Should the suggestion which I have made in section 4 of the present note for an informal conference of this nature recommend itself to the United States Government, I have every confidence that the experts would be able to settle upon the most appropriate method of attacking the problem of the judicial arbitration court. I may add that I have ascertained, by inquiry at Paris and Berlin, that a proposal for such a conference would meet with no opposition on the part of the French and German Governments.

I have, etc.,

E. Grey.