The Secretary of State to Chargé Schuyler.
Washington, October 26, 1910.
Sir: The department learned with sincere pleasure, by Mr. O’Brien’s telegram of the 9th ultimo1 and his dispatch No. 1221,1 of the same day’s date, that the Japanese Government had instructed its representative at The Hague to sign the additional protocol of the international prize court convention without reservation of any kind.
In regard to the Japanese memorandum dated May 9, 1910,2 transmitted by Mr. O’Brien in his dispatch No. 1160 of May 10, 1910,1 and referred to by the Japanese note dated July 29, 1910,1 inclosed in his No. 1221 under acknowledgment, the department feels that the language of the protocol is sufficiently broad to meet the desires of the Japanese Government, because the existence of constitutional difficulties is a matter of internal relations into which international law does not ordinarily inquire, and the official statement that such difficulties exist and that the Government desires to avail itself of the alternative procedure contained in the additional protocol would be final and binding.
In the next place, the expression of constitutional difficulties is very broad and relates not merely to provisions of a constitution, but also to the internal organization, whether it depends upon a constitution or the laws or practice of a country. From this point of view constitutional convenience or inconvenience would be determinative, and a preference for the alternative procedure proposed by the additional protocol and based upon convenience or inconvenience would be a sufficient justification of the determination of the Government in [Page 638] favor of the alternative procedure stipulated for in the protocol. In any event, the question is one for the decision of the Government wishing to avail itself of the alternative procedure. This view of the matter is understood to be the view of the Netherlands Government, and the department understands that that Government, as transmitter of the additional protocol, will make a formal statement to this effect.
You will present these views to the Japanese Government and inform the minister of foreign affairs that the department appreciates the motives of the Japanese Government, shares in them, and believes that the purpose of the Japanese memorandum dated May 9, 1910, will be realized in practice without the necessity of formal amendment or interpretation of the protocol.
You will take an early opportunity to express to the Japanese Government the department’s high appreciation of its acceptance in principle of the proposition of the United States as laid down in the identic circular note of October 18, 1909, to invest the prize court with the functions and jurisdiction of the court of arbitral justice. In doing so the Japanese Government states that it believes it advisable to proceed to the establishment of the prize court and to delay any action regarding the establishment of the court of arbitral justice until such time as the prize court has been established. The Department of State concurs in this view and will defer international consideration of the project to establish the court of arbitral justice until the prize court is instituted, so as not in any way to jeopardize the establishment of the latter institution.
I am, etc.,