711.6212 A/7
Memorandum by the Under Secretary of State of a
Conversation With the German Ambassador (Von
Prittwitz)
[Washington,] April 11,
1928.
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
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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.
[Annex]
Informal Memorandum by the German
Ambassador (Von Prittwitz)
- I.
- In the matter of the relation between the two Treaties the
following questions might arise:
- 1)
- 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.
- 2)
- 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.
- 3)
- 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.
- II.
- 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.
- III.
- The first reservation of Article ii can be interpreted to
apply in every case in which a national law creates the
jurisdiction of a
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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.