341.1154L58/252
The Secretary of State to the Chargé in Great Britain (Atherton)
Sir: I have received and carefully considered the Embassy’s despatch No. 137 of August 4 last, regarding the so-called “Lewis-gun claim” against the Government of Great Britain.
In its reply of August 212 to the Embassy’s note of April 6 last,13 the British Foreign Office, without undertaking to discuss in any detailed manner the several points mentioned in the Embassy’s note, reaches the conclusion that there are no points of difference between the two Governments which warrant the development of the case in the manner suggested in the Embassy’s note; and states that “His Majesty’s Government remain quite unable to admit the right of the United States Government to intervene in this question”.
I am somewhat reluctant to accept the conclusion that Sir John Simon, the Minister for Foreign Affairs, has, as a result of careful thought, undertaken to determine, as the note of August 2 appears to indicate, not only that this Government shall not be conceded the right to intervene diplomatically with the British Government in behalf of its own nationals, in the circumstances of this case, but that the question [Page 824] as to that right and the other questions involved are not in their nature justiciable. I am the more reluctant to accept that conclusion because of the fact that the note from the Foreign Office is signed by a Chief of Section, “in the absence of the Secretary of State”, and also because of the fact that the Embassy’s cable No. 231 of August 114 conveyed the information that Sir John Simon was at that time in Rio de Janeiro, Brazil.
I am of the opinion that this case presents no question of either fact or law which is not justiciable in character. Moreover, the case is one which, in my opinion, not only should be appropriately settled without further undue delay, since it has already been the subject of diplomatic discussion over a period of nearly ten years, but, in view of the unwillingness on the part of the British Government to consider it on its merits, should be submitted to arbitration. It is just such differences of opinion as those obtaining in this case that are appropriate for submission to arbitration.
If nations were, generally, to refuse to arbitrate their differences on the basis of their individual decisions that there were no questions to be adjudicated, or that the claimant Government could not be admitted to have any locus standi in the cause it might espouse on behalf of its nationals, arbitration would, indeed, come far from fulfilling the purposes which it is the universal hope that it shall serve. All such matters of difference, which have developed between our two Governments in the past, have been resolved either by diplomatic discussion or by arbitration, and I am loth to believe that His Majesty’s Government desires now to establish a precedent to the effect that such matters of difference shall remain unsolved because of the refusal of one of the Governments to entrust the questions involved to determination by arbitration.
I can not, of course, concede that it is properly within the province of His Majesty’s Government to determine the rights of this Government with respect to intervention in behalf of the American stockholders in the “Armes Automatiques Lewis”. The indicated disposition of His Majesty’s Government in this respect appears to be inconsistent with its own course of action in the well-known Delagoa Bay case—Moore’s Arbitrations, Volume II, p. 1865, et seq.—and with the principle applied in that case and in many other cases of international difference. In this connection I desire to emphasize that this Government has not asserted any alleged right to intervene in behalf of the Belgian corporation—the Armes Automatiques Lewis—as inferred by the Foreign Office in its above-mentioned note. Nor can I concede that this case can properly be closed in the manner indicated by the note of August 2 from the British Foreign Office.
[Page 825]I shall be glad, therefore, if you will personally take advantage of an early opportunity to indicate in a general way to Sir John Simon my views as above expressed. You may also, in your discretion, remind him that, as counsel for the Armes Automatiques Lewis corporation, he indicated, in his arguments of July, 1921, before Mr. Justice Darling of the High Court of Justice, King’s Bench Division, a strong personal conviction of the justice of the claim of his client and that the present claim rests on the point then in litigation and on several other points subsequently developed in which, it is contended, the British Government has failed to accord to the American nationals involved a proper degree of justice under the laws of England. You will at the same time leave with the Foreign Minister a note expressing my views of the matter as indicated above and making formal request, on behalf of this Government, either that the procedure suggested in the Embassy’s note of April 6, last, be accepted or that the case be referred to arbitration.
Very truly yours,