711.60c12A/29

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 the subsequent conversations relating to certain alterations proposed by the Government of Poland in the draft texts of treaties of arbitration and of conciliation between the United States and Poland, which were handed to you with Mr. Olds’ note of March 28, 1928. It seems desirable to discuss briefly these alterations other than the ones involving very minor points obviously not regarded essential by either Government. I am making the subject of a separate note10 the attitude of the Government of the United States in regard to the proposal of Poland that, in the draft treaty of arbitration, the phrase “international law and custom” be substituted for the phrase “law or equity”, 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”.

[Page 760]

Your Government also proposed the insertion of a new article to read as follows:

“In all cases, (which) according to the domestic jurisdiction of either of the High Contracting Parties, belong to the sphere of competence of national tribunals the Party in question shall have the right to refuse the application thereto of the procedure of arbitration, until a definite award of the competent tribunal is pronounced.”

I regard this addition as unnecessary. It is not the practice of States to resort to diplomatic action in cases that belong to the sphere of competence of national tribunals unless there has been a denial of justice. If it is not the practice to resort to diplomatic remedies, in the ordinary sense, it is even less the practice to resort to such remedies as arbitration and conciliation. The utilization of arbitration and conciliation, according to the practice of States, is appropriate only when there has been an exhaustion of more usual and normal remedies. It is not appropriate in substitution for such remedies. The present treaty, when effective, must, of course, be construed in accordance with international practice.

The practice of States in this regard seems so clear as to leave no room for apprehension that the remedies of arbitration and conciliation may be invoked in cases that belong to the sphere of competence of national tribunals so long as the national tribunals are open, are being resorted to and are reaching decisions that do not deny justice. But to include as a part of the text of the treaties the proposal of your Government might have the effect of inviting denials of the propriety of invoking arbitration and conciliation and might lead to delays and to controversies, otherwise avoidable, as to whether the very remedies which the treaties themselves are designed to supply could be invoked.

I feel confident of your agreeing with me that the added clause might complicate the initiation of arbitration and conciliation in particular cases and would undertake the extremely difficult task of trying to lay down a general rule about a subject of such complexity as to be capable of decision in respect of each case only as it arises.

Accordingly, I must say candidly that this proposal is not acceptable to the Government of the United States. I trust that, in the light of the foregoing statement, it may no longer be insisted upon by your Government.

I am very glad to have the exchange of ratifications take place at Warsaw instead of Washington, and to have the treaty become effective on the thirtieth day after instead of on the day of the exchange of ratifications. The language used in the texts may most appropriately be English and Polish.

[Page 761]

The modifications which you suggested in the draft treaty of conciliation are in several cases the same as those suggested for the treaty of arbitration, and I need not deal with them again. At the end of Article II of the draft as submitted, you suggested the addition of a new sentence to the effect that except in cases where the treaty provides otherwise, the International Commission to be set up under it should follow the rules of procedure stated in Part III of the Convention for the Pacific Settlement of International Disputes concluded at The Hague on October 18, 1907.

Since both the United States and Poland are parties to this Convention, it is natural that the procedure laid down in it may be looked to in the event of the reference of a dispute to the International Commission to be created in accordance with the proposed treaty of conciliation. However, the Convention of 1907 differs in certain respects from the proposed Convention, and it seems to me preferable not to include in the latter a provision which might limit the freedom of action of the two Governments on this point. I shall be gratified, accordingly, if your Government may find itself in a position to recede from this request.

I should also prefer not to omit the last sentence of the first paragraph of Article III. It seems unnecessary to curtail the initiative of the International Commission and, since the offer of its services need not be accepted by the parties of the treaty, there appears to be little ground for apprehension lest either Government may be embarrassed by an offer of the Commission’s services. I trust that on further consideration, Your Government may find itself in agreement with this point of view.

I am gratified at the cordial expressions of your Government referred to in your note of May 14, and I take pleasure in sending you herewith new draft texts11 embodying the alterations which I have been able to accept among those you proposed in the texts transmitted to you on March 28.

Accept [etc.]

Frank B. Kellogg
  1. Supra.
  2. These texts were the same as those signed August 16, 1928, pp. 763 and 765.