The Norwegian Minister (Bachke) to the Secretary of State

Mr. Secretary of State: I have had the honor to receive Your Excellency’s note of May 24, 1928, in which you have informed me, that the Government of the United States of America can not accept the Norwegian Government’s proposal of a prolongation (with certain [Page 708] modifications) of the treaty of arbitration of 1908 for a further period of five years.

My Government, having duly considered the contents of your said note, have instructed me to inform you as follows:

The chief objection entertained by the Norwegian Government to the draft treaty, transmitted with your communication of March 10, 1928, is, that the draft defines “differences of a legal nature” in a less satisfactory manner than the treaty of 1908.

The treaty of 1908 states in article 1, that “differences which may arise of a legal nature or relating to the interpretation of Treaties” shall be referred to the Permanent Court of Arbitration. This point corresponds to the first part of article 1 in the American draft, which prescribes arbitration for “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”.

To the above provision the Norwegian Government have nothing in particular to remark. But it is considered a disadvantage, that the American draft, in contrast to the treaty of 1908, further provides, that a party can only insist on arbitration in cases of differences “which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity”. Thereby each party is given a further opportunity of declaring any concrete dispute to be outside the scope of the treaty. It is true that in a case of a concrete difference no arbitration can take place, neither according to the old nor to the new treaty, without the advice and consent of the Senate. But this fact does not make it without importance how the treaty defines the general obligation to submit differences to arbitration.

The Norwegian Government can, however, in principle, accept the American draft treaty and are ready to enter into negotiation with a view to the conclusion of a new treaty, based upon the said draft. The Government would, however, in order to make the treaty still clearer, venture to suggest, that the following words in article 1: “which have not been adjusted as a result of reference to the Permanent International Commission constituted pursuant to the treaty signed at Washington, June 24, 1914”,5 are left out. Such an omission would serve to remove any possible doubt as to the fact that each party has a right to insist on arbitration in a case of a difference of a legal nature without the special commission of investigation first having necessarily dealt with the case;—which, in fact, is what the draft intends to express. It is quite superfluous to add the words, quoted above, in order to make clear that the parties, if they agree thereto, may submit even a difference of a legal nature to the commission of investigation.

Please accept [etc.]

H. H. Bachke