711.9412A/11
The Secretary of State to
the Japanese Ambassador (Matsudaira)
Washington, March 14,
1928.
Excellency: On December 31, 1927, I had the
honor to communicate to you for the consideration of your Government and
as a basis for negotiation the draft text of a proposed treaty of
arbitration and conciliation, the arbitration provisions of which were
mutatis mutandis identical with those
contained in the draft treaties which I had just submitted to the French
and British Governments, and the conciliation provisions of which were
based upon the Treaty for the Advancement of Peace concluded between the
United States and Great Britain on September 15, 1914.
The new arbitration treaty with France, a copy of which is enclosed, was
signed February 6, 1928,12 and the Senate of the United States has
already given its advice and consent to the ratification thereof. The
question having arisen, however, as to whether that treaty affected the
status of the conciliation treaty of 1914,13 the matter was
resolved by an exchange of notes14 recording the understanding of both France
and the United States that the earlier conciliation treaty was in no way
affected by the later arbitration treaty. In order to obviate further
questions of this nature, however, I deem it desirable to avoid the
incorporation in other arbitration treaties of any portion of the
language of the earlier conciliation treaties, where they exist, and
where no such treaty is now in force to negotiate two separate and
distinct treaties rather than to endeavor to deal with both subjects in
a single instrument, and I have followed that course, for example, in
the case of Germany to which I recently submitted the draft texts of two
separate treaties, one an arbitration treaty based upon the treaty with
France of February 6, 1928, and the other a conciliation treaty based
upon the so-called Bryan
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treaties of 1913 and 1914.15 In these circumstances I have the honor
to suggest, in the interest of uniformity and for the purpose of
presenting possible future misunderstanding, that your Government
substitute for the draft treaty which I submitted with my note of
December 31, 1927, the two drafts transmitted herewith.
The language of the enclosed draft arbitration treaty is identical with
that of the Preamble and Articles IV, V and VI of the treaty submitted
with my note of December 31, 1927, with the following exceptions: the
words “and conciliation” have been omitted from the last paragraph of
the Preamble; in Article IV (which is Article I of the enclosed draft) I
have substituted for the words “the abovementioned Permanent
International Commission” the words “an appropriate Commission of
Conciliation”; I have added to Article V (which is Article II of the
enclosed draft) a new paragraph lettered (d)
identical with paragraph (d) of the corresponding
article of the treaty signed by the United States and France on February
6, 1928; and the last word of the first sentence of Article VI (which is
Article III of the enclosed draft) has been changed from “forms” to
“laws”.
Except for changing the word “forms” to “laws” in the first sentence of
the final article, the language of the enclosed draft conciliation
treaty is identical with that of Articles I, II, III and VI of the draft
submitted with my note of December 31, 1927, and the language of the
Preamble is taken from the Preamble of the abovementioned treaty of
September 15, 1914, between the United States and Great Britain.
By the changes enumerated above and by substituting two separate treaties
for the combined treaty suggested in my note of December 31, 1927,
negotiations with your Government can now go forward on exactly the same
basis as negotiations with the other Governments to which I am proposing
new arbitration treaties and/or conciliation treaties similar to those
concluded by the United States in 1913 and 1914.
Accept [etc.]
[Enclosure 1]
Draft Treaty of Arbitration
The President of the United States of America and His Majesty the
Emperor of Japan
Determined to prevent so far as in their power lies any interruption
in the peaceful relations that have always existed between the two
nations;
Desirous of reaffirming their adherence to the policy of submitting
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to impartial decision
all justiciable controversies that may arise between them; and
Eager by their example not only to demonstrate their condemnation of
war as an instrument of national policy in their mutual relations,
but also to hasten the time when the perfection of international
arrangements for the pacific settlement of international disputes
shall have eliminated forever the possibility of war among any of
the Powers of the world;
Have decided to conclude a new treaty of arbitration enlarging the
scope and obligations of the Arbitration Convention signed at
Washington on May 5, 1908, which expires by limitation on August 24,
1928, and for that purpose they have appointed as their respective
Plenipotentiaries
- The President of the United States of America
- His Majesty the Emperor of Japan
who, having communicated to one another their full
powers found in good and due form, have agreed upon the following
articles:
Article I
All differences relating to international matters in which the High
Contracting Parties are concerned by virtue of a claim of right made
by one against the other under treaty or otherwise, which it has not
been possible to adjust by diplomacy, which have not been adjusted
as a result of reference to an appropriate Commission of
Conciliation, and which are justiciable in their nature by reason of
being susceptible of decision by the application of the principles
of law or equity, shall be submitted to the Permanent Court of
Arbitration established at The Hague by the Convention of October
18, 1907, or to some other competent tribunal, as shall be decided
in each case by special agreement, which special agreement shall
provide for the organization of such tribunal if necessary, define
its powers, state the question or questions at issue, and settle the
terms of reference.
The special agreement in each case shall be made on the part of the
United States of America by the President of the United States of
America by and with the advice and consent of the Senate thereof,
and on the part of Japan in accordance with the constitutional laws
of Japan.
Article II
The provisions of this treaty shall not be invoked in respect of any
dispute the subject matter of which
- (a)
- is within the domestic jurisdiction of either of the High
Contracting Parties,
- (b)
- involves the interests of third Parties,
- (c)
- depends upon or involves the maintenance of the
traditional attitude of the United States concerning
American questions, commonly described as the Monroe
Doctrine,
- (d)
- depends upon or involves the observance of the obligations
of Japan in accordance with the Covenant of the League of
Nations.
Article III
The present treaty shall be ratified by the President of the United
States of America by and with the advice and consent of the Senate
thereof and by Japan in accordance with its constitutional laws.
The ratifications shall be exchanged at Washington as soon as
possible, and the treaty shall take effect on the date of the
exchange of the ratifications. It shall thereafter remain in force
continuously unless and until terminated by one year’s written
notice given by either High Contracting Party to the other.
In faith thereof the respective Plenipotentiaries have signed this
treaty in duplicate and hereunto affix their seals.
Done at
Washington the . . . . . day of . .
. . . in the year of our Lord one thousand nine hundred and
twenty . . . . . .
[Enclosure 2]
Draft Treaty of Conciliation
The President of the United States of America and His Majesty the
Emperor of Japan, being desirous to strengthen the bonds of amity
that bind them together and also to advance the cause of general
peace, have resolved to enter into a treaty for that purpose, and to
that end have appointed as their Plenipotentiaries:
- The President of the United States of America
- His Majesty the Emperor of Japan
Who, having communicated to each other their respective full powers,
found to be in proper form, have agreed upon and concluded the
following articles:
Article I
Any disputes arising between the Government of the United States of
America and the Government of Japan, of whatever nature they may be,
shall, when ordinary diplomatic proceedings have failed and the High
Contracting Parties do not have recourse to adjudication by a
competent tribunal, be submitted for investigation and report to a
Permanent International Commission constituted in the manner
prescribed in the next succeeding Article; and they agree not to
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declare war or begin
hostilities during such investigation and before the report is
submitted.
Article II
The International Commission shall be composed of five members, to be
appointed as follows: One member shall be chosen from each country,
by the Government thereof; one member shall be chosen by each
Government from some third country; the fifth member shall be chosen
by common agreement between the two Governments, it being understood
that he shall not be a citizen of either country. The expenses of
the Commission shall be paid by the two Governments in equal
proportions.
The International Commission shall be appointed within six months
after the exchange of the ratifications of this treaty; and
vacancies shall be filled according to the manner of the original
appointment.
Article III
In case the High Contracting Parties shall have failed to adjust a
dispute by diplomatic methods, and they do not have recourse to
adjudication by a competent tribunal, they shall at once refer it to
the International Commission for investigation and report. The
International Commission may, however, spontaneously by unanimous
agreement offer its services to that effect, and in such case it
shall notify both Governments and request their cooperation in the
investigation.
The High Contracting Parties agree to furnish the Permanent
International Commission with all the means and facilities required
for its investigation and report.
The report of the Commission shall be completed within one year after
the date on which it shall declare its investigation to have begun,
unless the High Contracting Parties shall limit or extend the time
by mutual agreement. The report shall be prepared in triplicate; one
copy shall be presented to each Government, and the third retained
by the Commission for its files.
The High Contracting Parties reserve the right to act independently
on the subject matter of the dispute after the report of the
Commission shall have been submitted.
Article IV
The present treaty shall be ratified by the President of the United
States of America by and with the advice and consent of the Senate
thereof and by Japan in accordance with its constitutional laws.
The ratifications shall be exchanged at Washington as soon as
possible, and the treaty shall take effect on the date of the
exchange of
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the
ratifications. It shall thereafter remain in force continuously
unless and until terminated by one year’s written notice given by
either High Contracting Party to the other.
In faith thereof the respective Plenipotentiaries have signed this
treaty in duplicate and hereunto affix their seals.
Done at
Washington the . . . . . day of . .
. . . in the year of our Lord one thousand nine hundred and
twenty. . . . . .
