The Secretary of State to the Norwegian Minister (Bachke)

Sir: I was pleased to be informed by your note of July 2, 1928, that your Government can accept, in principle, the draft treaty of arbitration proposed by my note of March 10, 1928.

In reference to the view expressed by your Government that the draft defines the matters which would be subject to arbitration thereunder in a less satisfactory manner than the matters subject to arbitration were defined in the Treaty of 1908, I have to say that this Government considers that the term “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” is fully as broad as the term “differences of a legal nature”, and that in view of the narrower scope of the exceptions made in the draft now under consideration as compared with the exceptions under the treaty of 1908, the new draft is an advance over the former treaty.

In respect of the view expressed in your note that the definition “which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity” affords a further opportunity to the Governments of declaring any concrete dispute to be outside the scope of the treaty, I may say that I fail to see how these words, if properly construed, would afford such an opportunity. This Government regards the provision as being a very broad one. That it is acceptable to other Governments is shown by the fact that within the past nine months eleven countries have signed with this Government arbitration treaties containing it.

Your Government proposed striking from Article I of the proposed treaty the words “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”, on the grounds that such an omission would serve to remove any doubt that each party has a right to insist on arbitration in a case of a difference of a legal nature and that the words are superfluous 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.

If the words “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,” be not included in the arbitration treaty there would be no indication in either the treaty of 1914 or the arbitration treaty that the two Governments would be disposed, if occasion should arise, to consider the submission of questions embraced in the latter to a commission of conciliation for investigation and report. The words which your Government asked [Page 710] to have struck out, are, therefore, not regarded by this Government as being superfluous since they indicate that the two Governments may, notwithstanding the agreement to arbitrate contained in the new treaty, submit any particular question of a legal nature to the commission of conciliation. This Government does not, however, construe the words so as to obligate the Parties to such procedure. I should be glad, therefore, if your Government may see its way not to insist upon the omission of the words.

I trust that the foregoing explanations will meet with the acceptance of your Government and that I may have the opportunity of signing the treaty with you.

Accept [etc.]

Frank B. Kellogg