711.60c12A/28
The Secretary of State to the Polish Minister ( Ciechanowski )
Sir: I have the honor to refer to your note of May 14, 1928, and to subsequent conversations relating to the changes proposed by the Government of Poland in the draft texts of proposed treaties of arbitration and conciliation between the United States and Poland [Page 758] which were handed to you with Mr. Olds’ note of March 28, 1928. I desire here to discuss the suggestion of your Government in respect of the phrase “law or equity”. I am addressing you another note8 for the purpose of discussing with you the other proposed alterations.
It appears that your Government regards as of especial importance the proposal which it has made to omit from the proposed arbitration treaty the phrase “law or equity” and to substitute for it the phrase “international law and custom”, so that the obligation to arbitrate may extend to differences which are “justiciable in their nature by reason of being susceptible of decision by the application of the principles of international law and custom”.
The term “international law” is less inclusive than the term “law”, and I feel that it would be inadvisable to adopt language which would have the effect of restricting the criterion by which the parties to the proposed treaty must determine whether a particular dispute is or is not justiciable. Apparently, however, the alteration to which your Government attaches chief significance is the omission of the word “equity”.
It may perhaps be well to point out that, in respect of justiciable disputes between nations, which involve the interpretation of treaties, the basis of the decision must be the language of the treaty in question.
At the time of our oral conversation, my understanding was that in proposing language for the treaty which would not include the word “equity”, your Government was actuated solely by the desire to clarify the language of the treaty so as to make it readily comprehensible by persons accustomed to consider such matters in Poland. My impression was that the proposed change was not intended to alter the meaning of the text as originally submitted by this Government but merely to clarify it. In view of this understanding, I was disposed at first to accept the alteration which your Government desires. On further consideration, however, I was convinced that it would be impracticable for this Government to accept the change.
The question is not one which can be decided, so far as the United States is concerned, with reference to the pending treaty between the United States and Poland alone. This Government has recently proposed identical, or practically identical, treaties of arbitration to about thirty Governments and may later make similar proposals to still other Governments. Five such treaties have been signed during recent months: with France, Italy, Germany, Finland and Denmark.9 In the case of Finland, there is no other text than the English. In the treaties with France, Italy, Germany and Denmark, the words [Page 759] “équité”, “equità”, “billigkeit” and “billighed”, are used respectively as the foreign equivalent of the English word “equity”. The fact that other Governments have been willing to accept the word “equity” seems to me to have considerable significance. I trust that it will contribute to dispel any doubts which the Polish Government may have as to the appropriateness of the language used in the draft text originally submitted to it by this Government.
It is the desire of this Government that there should be uniformity in the series of treaties which it is now negotiating, and whenever a Government has requested an alteration such as is now requested by Poland, I have asked that it recede from the request in the interest of uniformity. Heretofore no Government has insisted upon the change. Should this Government consent to make the change in the present negotiations, it would be in the position of agreeing, at the request of Poland, to what it heretofore has uniformly refused.
I believe that you will sympathize with the position of the Government of the United States in this matter and I trust that you will point out fully to your Government the motives which actuate me in urging that it consider further whether it may find itself able to accept, consistently with its own laws and practices, the language used in the draft originally proposed by the United States.
Accept [etc.]