43327/13.
PUBLIC RECORD OFFICE
Reference :-
TPIC.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 162A.
(GENERAL.)
[Arrest of fugitiva criminals on German merchant ships in British territorial waters.] FOREIGN OFFICE to LAW OFFICERS.
Foreign Office, May 10, 1912.
GENTLEMEN,
SECRETARY SIR EDWARD GREY has received your report of the 15th March* on the subject of attempts to arrest fugitive offenders on board German merchant vessels when calling at Southampton on their way to Germany.
In view of the opinion expressed in paragraph 1 of your report that, having regard to the principle involved, any offer by His Majesty's Government to submit the question to arbitration is to be deprecated, I have the honour, by Sir Edward Grey's direction, to invite your attention to the provisions of the Arbitration Agreement between this country and Germany of the 12th July, 1904 (Paper (A)), which agreement was renewed, by exchanges of notes, dated the 7th June and 9th July, 1909, and the 23rd November and 7th December, 1909, for a further period of five years.
By the terms of Article 1 of that Agreement, either of the high contracting parties has the right to claim a reference to arbitration of differences which may arise of a legal nature, or relating to the interpretation of treaties existing between the contracting parties and which it may not have been possible to settle by diplomacy, unless the principle involved affects the vital interests, independence, or honour of the contracting States. The present question is certainly not a difference relating to the interpretation of treaties, and Sir E. Grey is advised that it is open to doubt whether it is a "difference of a legal nature" within the meaning of the phrase as used in the Agreement. The law which is indicated appears to be, not the municipal law of either State, but the general principles of the jus commune and it seems very doubtful whether a dispute, such as the present is conceived to be, with regard to what is the municipal law of this country can be considered as coming within the scope of the Agreement. In this connexion I am to enclose a memorandum (Paper (E)) showing the circumstances in which the words "differences of a legal nature were adopted as the translation of "différends d'ordre juridique" in the English text of the Anglo-French Arbitration Agreement of 1903, on which the Anglo-German Agreement of 1904 was based. As having a special bearing on the point, I am to call your particular attention to the facts connected with the Arbitra- tion Convention between Brazil and Venezuela of the 30th April, 1909, which are set forth at the end of the memorandum.
**
It will be seen that the parties to that Arbitration Convention (which contained in Article 1 an engagement to refer differences" of a judicial nature") subsequently exchanged notes in which it was stated that it was, of course, understood between them that Article 1 excludes from the obligatory arbitration questions which according to the territorial law must be settled by the national tribunals."
The note then proceeds as follows:-
Even though this declaration appears unnecessary, it is convenient to state it here in writing, and to mention it later on in the act of the exchange of the ratifications of the convention referred to, in order to avoid any doubt in the future,"
and this explanation was included in the protocol of the exchange of ratifications of the 8th January, 1912.
Should a contention to the effect that the present dispute is not within the scope of the Agreement be put forward by His Majesty's Government, but not accepted by the German Government, a question might arise as to whether the ensuing difference difference of a legal of opinion as to the scope of the Agreement would not be a nature, or relating to the interpretation of treaties," on which the German Govern- ment would be entitled to claim arbitration. In this connexion I am to enclose a copy of a report dated the 19th January, 1910,† by the then Law Officers of the Crown (Paper (B)) on the subject of certain claims by the German Government arising out of the South African War, with special reference to paragraph 12 and
• No. 155A in Vol. VII.
(109-2.) Wt. 189-729. 25. 1/14, D& 8. G 2.
† No. 128 in Vol. VII.
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