711.6212 A/8

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

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.

R[obert] E. O[lds]

Comment on the Informal Memorandum Left by the German Ambassador (Von Prittwitz) at the Department of State April 11, 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.

  1. The War Prevention Policy of the United States, an address by Honorable Frank B. Kellogg, Secretary of State of the United States, delivered before the Council on Foreign Relations at New York City, Mar. 15, 1928 (Washington, Government Printing Office, 1928).