711.6212 A/7

Memorandum by the Under Secretary of State of a Conversation With the German Ambassador (Von Prittwitz)

The Ambassador came in at his own suggestion and said that his Government had been considering the draft treaties of arbitration and conciliation recently submitted. It was anxious to negotiate and sign these treaties as soon as possible. There were, however, one or two questions of interpretation and procedure under the two treaties which it would seem desirable to discuss quite informally in order to make certain that there is an entire agreement on all points. The Ambassador thought that these questions were easily determinable. He did not wish to deal with them at all formally and, therefore, merely prepared a very brief memorandum which he would [Page 864] like to leave for our consideration. He suggested that at our convenience we take the subject up again orally. Attached is his memorandum.

The Ambassador also inquired whether the correspondence on the subject of the treaty to outlaw war had been yet sent to Ambassador Schurman for delivery to the German Government. I told him that all papers were now in the hands of our Ambassador in Berlin, and that we hoped to give him final instructions to deliver them to the German Government some time within the next day or two.

R[obert] E. O[lds]

Informal Memorandum by the German Ambassador (Von Prittwitz)

In the matter of the relation between the two Treaties the following questions might arise:
After entering into a “special agreement” under Article I of the Arbitration Treaty to submit a controversy to arbitration, may a party, parallel to or subsequent to such arbitration, invoke conciliation proceedings?
Following the draft, this would appear not to be the case.
If, on the other hand, a party considers a case for arbitration to have arisen, but cannot agree with the other party on the terms of such arbitration so that a “special agreement” is not concluded, it is to be assumed that each party is entitled to call for conciliation.
If, notwithstanding that a case for arbitration has arisen, one party immediately enters into conciliation proceedings, the question arises whether the other party may insist upon arbitration before the conciliation proceedings have been carried through. In such case the first party which has referred the matter for conciliation can in effect always obstruct the arbitration proceedings by refusing to enter into a “special agreement”. It seems, nevertheless, of importance to determine in principle whether such action would be permissible under the treaties. The only logical reply would appear to be that no party may obstruct or delay arbitration by onesided invocation of conciliation.
The phrase “and which are justiciable in their nature etc.” in Article I is understood to be an interpretation and not a modification of the term “claim of right” in the same article. If this were not the case, such modification, it is to be feared, might lead to the creation of a reservation of similar scope as the former reservations on grounds of national honor and interest in that any party might declare that it did not consider the case susceptible of decision by the application of the principles of Law or Equity.
The first reservation of Article ii can be interpreted to apply in every case in which a national law creates the jurisdiction of a [Page 865] national Court. There are, however, many cases conceivable where a national law provides for national jurisdiction, but where simultaneously accepted rules of International Law are applicable. Supposing in such case, that the decision of the national Court were not in accordance with the accepted rules of International Law, such decision might nevertheless be held to prevail. The customary practice in such cases is first to resort to the final decision of national jurisdiction and then to allow arbitration if such final national decision proves to be contrary to International Law. If the first reservation of the present draft is not to be understood in this sense, the result would be that domestic jurisdiction could in every case exclude arbitration. It therefore appears desirable to interpret clause (a) of Article II to mean that this reservation is only applicable in cases where domestic jurisdiction is provided by International Law, i. e. where the Law of Nations unrestrictedly leaves the matter to national jurisdiction.