711.9412A/27
The Department of State to the Japanese Embassy18
I. Is the scope of the differences to be referred to arbitration by virtue of Article I of the draft Treaty of Arbitration, as proposed by the United States Government, identical with the scope of Article I of the existing Arbitration Convention between Japan and the United States, concluded in 1908, which is limited to “differences which may arise of a legal nature, or relating to treaties existing between the two Contracting Parties?” If the former is more comprehensive than the latter, then to what extent?
The scope of the questions to be referred to arbitration by virtue [Page 145] of Article I of the draft Treaty of Arbitration and Article I of the Arbitration Convention between Japan and the United States of 1908 is substantially the same in respect to the nature of the referable questions. In both cases only differences of a legal or justiciable nature are referable. However, the draft Treaty is broader in scope, because the reservations described in Article II are more definite and limited than the reservations set forth in Article I of the Convention of 1908.
II. Regarding the provisions of Article I of the proposed Treaty of Arbitration:
(a) What is the meaning of “a claim of right?” Is it synonymous with “a legal claim” and does it in essence differ from “differences which may arise of a legal nature” as provided in the Arbitration Convention of 1908?
“A claim of right” denotes a claim based upon some legal right. It is synonymous “with a legal claim.” It does not in substance differ from “differences which may arise of a legal nature” as provided in the Arbitration Convention of 1908.
(b) Article I in part provides “a claim of right made by one against the other under treaty or otherwise, shall be decided . . . .” What does “otherwise” denote?
The word “otherwise” in Article I of the draft Treaty denotes a claim which might arise under any established principle of international law.
(c) What is the extent of being “justiciable?”
(1) Are such questions as those involving the existence of a nation to be regarded as non-justiciable and not to be referred to arbitration?
In the absence of international agreements to the contrary, questions involving the existence of a nation are essentially political, rather than justiciable and hence beyond the scope of this Treaty.
(2) Is it to be understood that the reservations enumerated in Article II of the draft Treaty of Arbitration are exempted from arbitration although they are justiciable in nature?
The reservations enumerated in Article II of the draft Treaty operate in part to clarify and define the scope of the Treaty by excepting from arbitration non-justiciable questions. For example, Article II Clause (a) of the draft Treaty, exempting domestic questions, is implicit in Article I, which limits the scope of arbitration to international justiciable questions. However, the reservations operate to except from arbitration the enumerated categories of questions, whether justiciable or non-justiciable in character.
(3) Further, is it to be construed that all disputes arising out of question not specifically mentioned in Article II are regarded as justiciable and subject to arbitration?
[Page 146]All international disputes of a legal or justiciable nature, not specifically excepted in Article II, are subject to arbitration under the provisions of the draft Treaty.
(d) In regard to the phrase, “principles of law or equity” does “equity” mean the general principle of justice as accepted both in international and domestic law? Is it to be understood to be synonymous with aequo et bono?
The word “equity” is used in Article I to describe one branch of jurisprudence recognized by civilized nations as part of the general principles of objective law. The draft Treaty contemplates that a question is justiciable when it is susceptible of solution by the application of objective principles of law or equity. Consequently, the term “equity” is not to be understood to be synonymous with the term “ex aequo et bono” (in justice and good dealing), a subjective and variable standard depending upon the individual conscience of the judge.
III. Are the differences as contemplated in Article I of the proposed Treaty of Arbitration to be referred first to arbitration or to a Permanent International Commission of the draft Treaty of Conciliation?
The differences described in Article I of the draft Treaty of Arbitration may be referred in the first instance to a Permanent International Commission under the draft Treaty of Conciliation, when the Parties do not have recourse to adjudication by a competent tribunal. In the event a settlement is not effected through conciliation, however, the obligation to arbitrate persists.
IV. Article III of the draft Treaty of Conciliation reads in part:
“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.”
Is it to be construed that a dispute should at once be referred to the International Commission when one of the parties in dispute is of the opinion that ordinary diplomatic proceedings have failed, or only when both recognize the failure of such diplomatic proceedings?
Under the draft treaty of Conciliation, both parties must recognize that there has been a failure of diplomatic settlement, before a case can be referred to the Permanent International Commission.19
- This undated, unsigned, and unaddressed memorandum was handed on August 7, 1929, by the Assistant Secretary of State (Castle) to the Japanese Ambassador (Debuchi). The italicized portions of the memorandum are questions submitted to the Department by the Japanese Chargé on June 26, 1928, in an informal memorandum (not printed).↩
- Negotiations were not continued.↩