711.5612a/27

The Netherlands Minister ( Van Royen ) to the Secretary of State 2

No. 1333

With reference to its aide-mémoire of June 27, 1928, No. 1949,3 the Netherlands Legation has the honor to state that the Netherlands Minister for Foreign Affairs has learned with great interest the contents of the first article of the Arbitration Treaty signed by the American States at the occasion of the International Conference on Conciliation and Arbitration of Washington (December 10, 1928–January 5, 1929).4

As is known to His Excellency the Secretary of State the first article of that treaty reads as follows:

“The High Contracting Parties bind themselves to submit to arbitration all differences of an international character which have arisen or may arise between them by virtue of a claim of right made by one against the other under treaty or otherwise, which it has not been possible to adjust by diplomacy and which are juridical in their nature by reason of being susceptible of decision by the application of the principles of law.

“There shall be considered as included among the questions of juridical character:

  • “(a) The interpretation of a treaty;
  • “(b) Any question of international law;
  • “(c) The existence of any fact, which if established would constitute a breach of an international obligation;
  • “(d) The nature and extent of the reparation to be made for the breach of an international obligation.”

The Netherlands Minister for Foreign Affairs would greatly appreciate if the terminology of this first article could be used likewise in the first article of the American-Netherlands Arbitration Treaty.

The article, if the United States Government prefers—in the same way as in the draft for the American-Netherlands Treaty, submitted by the State Department5—could begin with the words, “All differences”, [Page 623] after which, like in the above quoted article, the words “of an international character etc. etc.” would follow and after the words “principles of law” the words “shall be submitted etc. etc.” of the above mentioned draft could be maintained as the continuation and end of the sentence.

The Netherlands Minister for Foreign Affairs prefers the above quoted text of the Inter-American Treaty on account of its being simpler and for the reason that the word “equity” (a juridical notion which does not seem well-defined to non-Anglosaxon minds) does not appear in it. Jonkheer Beelaerts moreover considers important, that the enumeration has been inserted of the above quoted groups (a) to (d), which likewise has been entered in several treaties concluded by the Netherlands. This, no doubt, during the discussion of the treaty in the States-General, will make the replacement of the old treaty by the new one more acceptable.

Besides, in art. 2 of the Inter-American Treaty of Washington an exception is made for differences “(a) which are within the domestic jurisdiction of any of the Parties to the dispute and are not controlled by international law.” The underlined words5a do not appear in the draft submitted by the United States to The Netherlands last year. At the same time, they give a more precise description of the exception. For, if a case lies albeit “within the domestic jurisdiction of any of the parties” but is subject at the same time to international law, there is no reason to withdraw it from arbitration. The additional determination expresses more clearly, that, in order that a case may be withheld from arbitration, it is not sufficient that, according to the internal legislation of a State, a difference belongs to its own jurisdiction, but that, moreover, it is required, that such difference be not subject to international law. The same precise determination would be obtained more or less by inserting the word “inclusive” before “domestic jurisdiction” but the text of the Inter-American Treaty is clearer.

It is by no means the intention of the Netherlands Minister for Foreign Affairs to cause, by his modification proposals, delay in the negotiations of the new Netherlands-American Arbitration Treaty. But as it is clear, that certain stipulations in a treaty signed by the United States are decided improvements, Jonkheer Beelaerts deems it his duty, not to fail to make an effort to insert those improvements also in the American-Netherlands Treaty. The Netherlands Legation therefore has been directed to submit the foregoing remarks to the kind consideration of the Secretary of State.

Though perhaps superfluous, the Netherlands Legation ventures to draw the attention of the State Department to the fifth paragraph of [Page 624] the preamble of the draft, the latter has submitted, where, since the temporary prolongation of the present treaty,6 the words “which expires by limitation on March 25, 1929” should now be cancelled.

  1. Handed to Assistant Secretary of State Castle on May 10, 1929.
  2. Foreign Relations, 1928, vol. iii, p. 412.
  3. Signed January 5, 1929; ibid., 1929, vol. i, p. 659.
  4. Draft not printed. It was identical in effect with treaty signed with France on February 6, 1928; ibid., 1928, vol. ii, p. 816.
  5. Printed in italics.
  6. See Foreign Relations, 1929, vol. iii, pp. 539 ff.