711.5512A/10
The Secretary of State to the Belgian Ambassador (De Ligne)
Excellency: I have the honor to reply to Your Excellency’s notes dated January 29, 1929, and June 6, 1928, referring to this Government’s proposal of March 26, 1928 for the negotiation of a treaty of arbitration and a treaty of conciliation between the United States and Belgium. I am sincerely gratified to know of Belgium’s acceptance, as affording ground for discussion, of the draft treaties which this Government submitted. I have noted the suggestions of the Belgian Government that certain changes of text would be appropriate. Careful attention has been accorded to these proposed changes and I take pleasure in stating, in the following paragraphs, the attitude of this Government with reference to them.
The first two proposals for change presented by the Belgian Government occur in respect of Article II of the draft treaty of arbitration.
In place of the lettered paragraph (a) in the draft as originally proposed, which reads “(a) is within the domestic jurisdiction of either of the High Contracting Parties”, the following language was suggested: “(a) has been submitted (est soumis) to the domestic jurisdiction of either of the High Contracting Parties”. I venture to suggest that the meaning which this Government attached to the passage in question has not been made wholly clear to the Government of Belgium. Mr. Silvercruys indicated in oral conversations that Your Excellency’s Government was under the impression that the exception in question to the obligation to arbitrate referred to disputes arising out of cases that have been or may be brought for adjudication before the courts of the respective countries. The intention, however, which this Government attempted to express had nothing to do with the question of adjudication by the courts of one or other of the two countries. The intended meaning covered only those cases which, in international law, are recognized as pertaining wholly to individual nations, concerning which each country must decide as to the propriety of its own acts.
Accordingly, the exception in question pertains to the subject-matter of disputes, not to whether they may, at any stage, be brought before a national tribunal of one of the Parties to the treaty.
In place of lettered paragraph (b) of Article II of the draft treaty, which excepts from the obligation to arbitrate any dispute the subject matter of which “involves the interests of third parties”, the Belgian Government would substitute any dispute which “involves the interests of third parties, unless these powers have themselves [Page 5] a right under a convention to refer the dispute to an arbitration tribunal”. This Government understands this proposal to have been made in view of the fact that treaties similar to the one under negotiation are in force or contemplated between the respective parties and various other countries.
This Government is of opinion, notwithstanding the arguments advanced on behalf of the foregoing proposal, that a bilateral arbitration treaty should deal solely with disputes substantial interest in which pertains to the two parties only. It is believed that provision for dealing with disputes of more widespread interest should be made by means of multilateral treaties. The fact that Belgium and the United States cooperate with many other powers in maintaining the Permanent Court of Arbitration at The Hague, which may be resorted to in tripartite or multipartite disputes, would seem to render consideration of them in the treaty under negotiation of diminished importance. I hope, accordingly, that the Belgian Government may be satisfied with the proposed treaty without altering its language at this point.
The requested alteration in Article III of the draft treaty of arbitration and in Article IV of the draft treaty of conciliation, involving the insertion of “His Majesty the King of the Belgians” in place of “Belgium” is, of course, accepted by this Government.
In Article I of the Draft treaty of conciliation the Belgian Government has requested a change the effect of which would evidently be to require disputes not settled by ordinary diplomatic proceedings to be referred to a conciliation commission, regardless of the availability of arbitration as an alternative method of solution.
Your Excellency’s Government has undoubtedly noted, in respect of the two draft treaties simultaneously submitted to it by the United States, that Article I of the arbitration treaty provides: “All differences …, 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 …, shall be submitted to the Permanent Court of Arbitration … or to some other competent tribunal”; while Article I of the conciliation treaty provides that “any disputes … of whatever nature …, 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.”
The existence of these provisions in the two complementary instruments is interpreted by the United States as leaving the order of utilization of the alternative remedies of arbitration and conciliation open for decision at the time the particular dispute arises, provided always that it is of such a nature as to fall within the limitations of [Page 6] the arbitration treaty as well as within the more inclusive provisions of the treaty of conciliation.
In the opinion of this Government it is wise to leave the matter open. Other Governments are understood to prefer different stated orders for the invocation of arbitration and conciliation. To avoid fixing a sequence at least meets half-way the Belgian policy of conciliation before arbitration when ordinary diplomacy has failed. I venture to hope that the Belgian Government may be persuaded to find the text as originally submitted acceptable.
The Belgian Government has proposed the elimination, at the end of Article I of the conciliation treaty, of the words “and they agree not to declare war or begin hostilities during such investigation and before the report is submitted;” and instead to insert, “and they agree not to apply coercive measures to each other and to refrain from any measure likely to aggravate the difference during investigation and pending delivery of the report.” It is understood that this proposal was made in view of the renunciation of war by the two Governments through the multilateral treaty signed August 27, 1928,10 and this Government is glad to join the Government of Belgium in adopting more appropriate language. While this Government is prepared to accept the foregoing amendment as proposed, I should prefer, provided the same is equally acceptable to the Belgian Government, the following: “and they agree not to resort with respect to each other to any act of force during the investigation to be made by the commission and before its report is handed in.” This is the language of the existing Franco-American conciliation treaty and I have agreed to accept it for insertion in the corresponding passage in the treaty now under negotiation with Luxemburg. Should it be acceptable to Belgium, appropriate alteration may readily be made at the Embassy in the accompanying revised draft of the treaty.
In Article II of the conciliation treaty, which provides for the composition of the International Commission, the following passage occurs in the draft submitted by this Government:
“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 Government of Belgium proposes the following in place of the foregoing:
“Each Government shall appoint a member from among its nationals; the other three members, including the President, shall be appointed in common accord, it being understood that they shall not be under the jurisdiction of either one of the two countries.”
The Government of the United States accepts this change, understanding that, by it, Your Excellency’s Government seeks a greater disinterestedness among the members of the Commission.
In Article III of the draft conciliation treaty the Belgian Government proposes a change the effect of which would make it permissible for either Party to bring a dispute before the International Commission without the cooperation of the other and, furthermore, enable the Commission to offer its services in the event of a dispute by a majority instead of a unanimous vote of its members. A proposed added provision would enable the Commission, by a unanimous vote, to lay before the parties the terms of any arrangement it may deem suitable—presumably without any reference of the dispute to it by the Parties to the treaty.
These proposals of the Belgian Government are more far-reaching than the Government of the United States is prepared to accept. Believing that their practical import is not great, it hopes that the Belgian Government may be in a position to recede from them.
Draft texts of arbitration and conciliation treaties, revised in accordance with the foregoing, are transmitted herewith.11 Trusting that these drafts may be acceptable to Your Excellency’s Government and that, accordingly, signature may take place in due course, I request Your Excellency to accept [etc.]
- Kellogg-Briand Pact, Foreign Relations, 1928, vol. i, p. 153.↩
- See signed treaties, infra.↩