The evening times. [volume] (Washington, D.C.) 1895-1902, 1898-03-12
ARBITRATION IMPOSSIBLE.
An Expert on International Law
Gives an Opinion.

Gives an Opinion.
New York, March l2.-Horatio s. Ru-
bens. counsel for the Cuban Junta, and
recognized authority on international law,
was asked yesterday what he thought Of
the suggestion in regard to the posibil-
ity of submitting the cause of the de-
struetion of the Maine to an international
board of arbitration.
As counsel for the Junta / will not
say anything" said Mr.. Rubens. be
cause have all along refrained from dis
cussing the Maine affair Personally, ]
will say that the persons making such
suggestions are, in my opinion, in error
in their Interpretation of international
law
The printed stories that if our Naval
Board of Inquiry should report the de-
structioR of the Maine was due TO exter-
nal causes, and il the Spanish Court of
Inquiry should report in favor OF the ac-
cfcaMaly theory, the decision would
haze To be arrived at by submitting the
question To an international board of in
quiry must have been made without due
consideration of the subject.
"In the first place, it would cast an as
peFsion on our naval experts. The his
tory of American experience with courts
of arbitration and claims, except, per-
haps, that of the Geneva tribunal, has
not been such as TO encourage 10 sub
nit 10 arbitration. The submission Of
the controversy would necessitate
treaty or convention, for which purpose
the consent of the United States Senate
would be necessary. The rejection by the
present Senate of the proposed arbitra-
tion treaty with England would tend to
show the impossibility Of the passage Of
any such treaty or convention.
The principle involved in the Maine
disaster differs materially in character
from the claims usually submitted to ar
bitration- This is not ii question much
of the material financial loss as 1t is OF
the principle of international responsible
ity for the safety of national property
and of the lives of governmental officers.
THE question Of national honor enters
largely into the consideration of this
matter. and it is improbable that any ma
ton will ever submit TO arbitration such
a subject.
in this connection the rules of inter
national law governing the case must not
be lost sight Of. A national vessel en-
joys extraordinary privileges. closely al
lied 10 those allowed 10 ministers or am
bassadors. Among these are the privi-
legcs of Observation-Disclosures guaran-
tee Of security and inviOlability while in
foreign territory.
IAN nations are held responsible for
the safety of diplomatic representatives
and our national property. They are re-
sponsible not only for their officially au-
thorized acts, but also for the acts OF
their subjects, There is the intermedi-
ate case of responsibility for the acts of
their officers whether civil military or
naval, even though these acts be with
out governmental knowledge or authori-
". There is a graver responsibility for
the authorized acts of Government Off
Gals than there is for those of ordinary
subjects
THE fundamental rule in cases as that
Of the Maine disaster is that the govern
ment in whose territory the damage dc-
crues is prima facie responsible and tina
burden of proof rests upon 1t to show
that ii used due diligence TO prevent such
an occurrence.
THE question Of what is due diligence
depends upon the surrounding cirCum-
stances and conditions The United
States itself has but lately given an ex-
ample in this connection in the case Of
the Nizcaya. Never before had IL been
deemed necessary to guard a visiting
war vessel. but in this instance the ar
rival of the NizCaya, at time when /
popular indignation was at fever heat.
owing to the insults heaned OF Presi-
dent Mckinley by the Spanish minister I
Of life by the sinking of the Maine. rem
dered il the duty. well understood by our |
Government. of taking more than or
binary precautions To carry out our in
ternationaI obligations Of guaranteeing +.
the safety Of the Vizcaya and her crew /
while in an American port.
The evidence supposed TO have been /
taken by the Naval Court Of Inquiry /
concerning the threats which had been /
made in Cuba of destruction Of the /
Maine. and OF bodily injury to American /
citizens generally. and the officers and /,
crew of the Maine in particular while |
probably having no weight in the de- |
termination of the authors of the deed. /
are still material to the question of the /
determination of the measure of due |
diligence to be employed by Spain n |
view of the surrounding conditions. That /
the ma ority of SpaniardS, both in Spain /
and Cuba. resented the presence of the /
Maine was made public and notorious |
not only through the press. but by |
means of warnings and threats. both |
verbal and written. which could not |
have failed To come TO the notice Of the /
Spanish authorities in Cuba when the /
character of the censorship and official |
espionage in Cuba is considered. In adj |
dition To this. we must take into ac- |
count the eHnty with which Americans |
are regarded by large class Of the |
spanish population. Ordinary precdu- /
tons would not have been sufficient I'M
der the circumstances.
ITO sum up; if the Court Of Inquiry
reports the destruction of the Maine due
TO external causes. Spain is prima facie
responsible. lnasmuCh as a sufficient |
quantity of explosives could not have
been obtained by private parties. with |
out the knowledge or consent of some |
Spanish officer, her responsibility is /
greater than if the act were that of an |
ordinary subject. Lastly. because of |
the surrounding circumstances, she |
should have exercised the highest degree |
of care in providing for the security of |
the Maine.