The Ambassador came down and talked with the Secretary and the Under
Secretary regarding the questions informally submitted by him on April
11. These questions were taken up seriatim and discussed at length along
the lines laid down in the attached memorandum which was at the
conclusion of the conversation given to the Ambassador for his own
personal use, and not in any sense to be regarded as a communication
from the Department to him or to his Government. The Ambassador
expressed entire satisfaction with the explanations, and said that he
saw no reason why after receiving his report the German Government would
not agree to the prompt execution of the treaties.
[Annex]
Comment on the Informal Memorandum Left by the
German Ambassador (Von Prittwitz)
at the Department of State April 11,
1928
[Washington,] April 12, 1928.
It must be assumed that the parties to the treaties sincerely desire
to carry out the spirit of the agreement. Given such disposition on
both sides, it does not seem likely that any misunderstanding
[Page 866]
would arise. The following
may be said as to the specific points suggested:
I. (1) After entering into a “special agreement” under Article I of
the Arbitration Treaty a party may not invoke conciliation
proceedings parallel to or subsequent to the arbitration. This
situation follows from the language of the original Bryan Treaties,
which in the interest of uniformity the Department has felt it
unwise to modify. It does not seem that this situation presents any
material difficulties since either party in the first instance can
choose between arbitration or conciliation, and arbitration having
been chosen there would seem to be little advantage in shifting to
the conciliation procedure, except in respect of the mutual
undertaking not to resort to war pending the report of the
conciliation commission. As a practical matter, were a question to
arise even remotely threatening hostilities, the parties would be
ill advised not to adopt the conciliation procedure in the first
instance. Furthermore, in the event that a multilateral treaty for
the renunciation of war along the lines now under discussion comes
into force, the matter would be cared for even more satisfactorily
than under the conciliation treaty.
I. (2) If a party considers a case for arbitration to have arisen but
cannot agree with the other party on the terms of the arbitration,
either party is entitled to call for conciliation since “recourse to
adjudication by a competent tribunal” cannot be said to have been
had where no agreement has been reached on a compromise.
I. (3) Arbitration can be invoked in respect of questions “which have
not been adjusted as a result of reference to an appropriate
commission of conciliation”. Either party may, therefore, request
arbitration so long as the controversy has not been “adjusted” by
conciliation, and it would seem to follow that mere reference to a
conciliation commission could not be held to bar recourse to
arbitration.
II. The definition of a justiciable question in Article I must be
taken as a whole, that is to say to come within the scope of the
arbitration treaty a difference must at one and the same time relate
to an international matter, be based upon a claim of right and be
justiciable in its nature by reason of being susceptible of decision
by the application of the principles of law or equity. To
illustrate: a question arising under a treaty or under well settled
principles of international law. If the question comes within this
definition, it could not be excluded from arbitration because one of
the parties might claim that it involves national honor or vital
interests. In this connection refer to the Secretary’s speech in New
York, a copy of which is attached.7
III. Clause (a) of Article II of the
arbitration treaty is intended to exclude from the scope of the
treaty such questions as the incidence of domestic taxation, tariff,
immigration of aliens and all matters of internal policy unless such
matters contravene a treaty right between two countries. All such
political questions are clearly within the purely domestic
jurisdiction of the parties. This does not mean, of
[Page 867]
course, matters within the
jurisdiction of domestic courts or tribunals but matters of purely
national concern because wholly within the governmental control or
competency of the two nations. If a question, however, is of
international character and is a claim of right susceptible of
decision by the application of the principles of law, of course the
right of arbitration cannot be taken away by either country through
self-serving legislation.
