411.57 N 83/128

The Secretary of State to the Norwegian Minister (Bryn)

Sir: I have the honor to refer to your note of February 14, 1921, in which you set forth certain proposals of your Government with regard to the settlement of the claim presented by it against the Government of the United States on account of the requisition by the latter of property of Norwegian subjects.

In the communication addressed to you by the Department under date of February 23, 1921,15 it was stated that these proposals would receive the Department’s careful consideration and would be the subject of a future communication to the Legation. While this Government does not admit that there has been a breach of any treaty obligation, considering the sole question as one of just claim for property taken for the use of the Government, I now beg to inform you that this Government is disposed to agree in principle to the settlement of this claim by an arbitration arrangement, the details of which can probably be expeditiously settled after the Norwegian Government shall have considered certain suggestions which I deem it advisable to make with respect to its proposals.

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In your note of February 14, you state that your Government is prepared to submit the claim to arbitration before the Permanent Court at The Hague, in accordance with the Convention of Arbitration concluded April 4, 1908, between the United States and Norway, or before a specially created tribunal, or to refer it for investigation to the commission established by the treaty of June 24, 1914.

It seems possible that by a resort to mediation under the treaty of 1914, an expression of impartial opinion respecting the claim might be obtained within a shorter period of time than would be required to bring about an adjudication by an arbitral tribunal. However, the proposed action under this treaty appears to raise a somewhat doubtful question as to the application to the case of this agreement in view of the limitations contained in its Article I with respect to the classes of disputes which are subject to investigation. The Article reads as follows:

“The High Contracting Parties agree that all disputes between them of every nature whatsoever shall, when diplomatic methods of adjustment have failed, be referred for investigation and report to a Permanent International Commission; provided, however, that treaties in force between the two parties do not prescribe settlement by arbitration of such dispute.

The Commission shall be constituted in the manner prescribed in the next succeeding article.

The High Contracting Parties agree not to declare war or begin hostilities during such investigation and before the report is submitted.”

Questions involved in the claim presented by your Government, as to the right of the Government of the United States to expropriate property in this country belonging to Norwegian subjects and as to compensation which should be paid for any property taken, would appear to be included within the terms of Article I of the treaty of 1908, and hence not to be within the scope of the treaty of 1914. Therefore, after careful consideration of your Government’s proposal with regard to an investigation pursuant to the terms of that treaty, I am not inclined to favor such a procedure. Although the treaty may not be applicable to the present case, there would appear to be no objection to a mediation in harmony with the principles underlying the treaty. It would seem practicable to make an arrangement for an examination into the questions at issue by impartial investigators in harmony with the principle of mediation to which both Governments have given their endorsement, not only by the conclusion of the treaty of 1914, but by their ratification of the Hague Convention for the Pacific Settlement [Page 582] of International Disputes concluded October 18, 1907,17 Article IX of which relates to the investigation of disputes by International Commissions of Enquiry.

However, in my opinion, arbitration, which would effect a definite and final disposition of the claim, would be preferable to any other method of procedure. While the treaty of 1908 does not contain a provision for arbitration other than before the court at The Hague, there would appear to be no obstacle to the conclusion of an agreement as suggested in your note of February 14, for the settlement of the claim by an arbitral tribunal created especially for that purpose. However, since pursuant to Article II of that treaty a compromis in the form of a treaty must be concluded before an arbitration can be undertaken, the only advantage of negotiating an agreement for a special tribunal would seem to be that the arbitrators might hold their sessions in the United States, where probably most of the evidence required in the preparation of the case would be available, or in some nearby country. If your Government should not attach importance to this consideration, the establishment of a special tribunal would seem to have no advantage over the established procedure before the court at The Hague. Should it seem desirable to minimize as much as possible the expenses of an arbitration before that tribunal, the number of arbitrators could be limited to three, in accordance with the summary procedure prescribed by Article 86 of the Convention for the Pacific Settlement of International Disputes.

If an arbitration before the court at The Hague along the lines above suggested should meet with the approval of the Norwegian Government, I would be glad to take up at once on being informed to that effect the negotiation of the special agreement contemplated by Article II of the treaty of 1908, defining the issues envolved in the particular claims which should properly be included within the terms of such agreement.

Accept [etc.]

Charles E. Hughes