Mr. Tower to Mr.
Hay.
Embassy
of the United States,
St.
Petersburg, June 1,
1900.
No. 230.]Sir: In supplement to my dispatch No. 214, of
the 14th of April, in regard to the wording of the protocol proposed for
the arbitration of the whaling and sealing claims made by the Government
of the United States against the Government of Russia, I have the honor
to inform you that, as the result of considerable further negotiation by
means of which the intention of both high contracting powers to seek
merely the ends of justice and equity through such an arbitration has
made itself perfectly clear, the gratifying decision has been reached by
the Imperial Government that it will consent to modify the phrase, “The
arbitrator shall be governed by the general principles of international
law and by international agreements applicable to the subject,” by
adding to it the following passage:
It is understood and agreed that this stipulation shall have no
retroactive force, and that the arbitrator shall apply to the
cases now in litigation the principles of international law and
of international agreements which were in force and binding upon
the parties to this litigation at the moment when the seizures
aforementioned took place.
I inclose to you herewith a copy of the note which I addressed upon this
subject to the Imperial minister of foreign affairs upon the 4th of
April and a copy and translation of his reply to it, dated the 17th
[Page 873]
(30th) of May, in which he
announces the readiness of the Russian Government to modify the phrase
to which objection has been made hitherto.
I have promised the Imperial minister to submit to you this announcement
and to inform him immediately upon the receipt of instructions from you
as to its acceptance by the Government of the United States.
I have the gratification to believe that with the modification thus
proposed the language of the protocol will now be acceptable to both
Governments, and that the more serious questions relating to the
litigation may be taken up in due course.
I have, etc.,
[Inclosure 1.]
Mr. Tower to
Count Mouravieff.
Embassy of the United States,
St. Petersburg, April 3/16, 1900.
Excellency: I beg leave to acknowledge the
receipt of your excellency’s note, No. 1652, of the 22d of March
(4th of April) in reply to one which I had the honor to address to
your excellency on the 16/29th March, relating to the wording of the
protocol proposed for the arbitration of the cases which have arisen
out of the seizure of certain American vessels.
I hasten to express to your excellency the gratification which I feel
in being able, both from the statements contained in this esteemed
note and from the tenor of the personal interviews which I have
recently been privileged to have with your excellency, to confirm-my
belief that the Imperial Government and the Government of-the United
States are substantially in accord in regard to submitting the cases
in question to the judgment of an arbitrator who shall be
satisfactory to both high contracting powers.
As I have already had the honor to inform your excellency, the United
States Government is prepared to accept the conditions in the
protocol suggested by the Imperial Russian Government, except that
it wishes for a more definite statement as to the exact meaning of
the phrase, “and the spirit of international agreements applicable
to the subject.”
The United States Government is not averse to the retention in the
protocol of this phrase, provided, as I have heretofore had the
advantage of explaining to your excellency, the intention of this
language can be clearly defined, and that it may be understood to
mean such international agreements and such rules of international
law as may, by a just and fair interpretation, be found to be
applicable to the subject.
As I have the personal assurance of your excellency that the purpose
of the Imperial Government is no other than this, it is quite
evident that the only difference still remaining between the two
high contracting powers in this connection is one of expression and
not of meaning, and that neither of the powers has the intention of
applying either the principles of international law or the spirit of
international agreements in a retroactive sense so as to make them
relate to the questions now to be considered by the arbitrator,
unless they were actually in existence and binding upon the parties
in interest at the time when the seizures of the American vessels
respectively took place.
This being the fact, it seems that there ought to be no difficulty in
reaching an accord upon the subject. For that purpose, therefore,
and with the earnest desire of forwarding the interests of all
parties concerned in this litigation, I have the honor to request
your excellency that you will authorize me to report officially to
the Government of the United States in regard to the provision
suggested in the protocol—“the general principles of international
law and the spirit of international agreements applicable to the
subject”—the following statement: “It is understood and agreed that
this stipulation shall have no retroactive force and that the
arbitrator shall apply to the cases now in litigation the principles
of international law and the spirit of such international agreements
only as were in force and binding upon the parties hereto at the
moment when the seizures in question took place.”
If your excellency will favor me with this statement I shall not fail
to communicate it forwith to the Government of the United States for
its approval and acceptance.
I avail, etc.,
[Page 874]
[Inclosure
2.—Translation.]
Count Mouravieff to Mr. Tower.
Ministry for Foreign Affairs,
First Department, May
17 (30), 1900.
No. 2614.]Monsieur l’Ambassadeur: Having had the
honor to receive your excellency’s note of the 3d (16th) of April, I
hasten to inform you that the Imperial Government, as a proof of its
desire to arrive at an understanding in regard to the wording of the
protocol in the arbitration of the cases relating to American
vessels, is disposed to admit in the text of the protocol, in
conformity with the wish expressed in the abovementioned note, the
following phrase: “It is understood and agreed that this stipulation
shall have no retroactive force, and that the arbitrator shall apply
to the cases now in litigation the principles of international law
and of international agreements which were in force and binding upon
the parties to this litigation at the moment when the seizures
aforementioned took place.”
This phrase is to follow the passage which reads: “The general
principles of international law and the spirit of international
agreements applicable to the subject.”
I beg you to accept, etc.,
