The Netherlands Legation to the Department of State
The Royal Netherland Legation has not failed to transmit to the Government at The Hague the communication of the Secretary of State of June 14, 1929, answering certain counter suggestions which have been made by the Netherland Government to the proposal of a treaty of arbitration between the Netherlands and the United States.
The Foreign Minister at The Hague has received this detailed answer with great interest but regrets that the Government of the United States will not be in a position to agree with certain improvements that he thought necessary to suggest. However in order to prove his earnest desire to arrive as soon as possible at a satisfactory result and to show his spirit of friendship for the advancement of arbitration, the Minister of Foreign Affairs is ready to accept the text for the treaty as lately proposed by the Secretary of State.
At the same time the Foreign Minister wishes to draw the attention of the Secretary of State to the following question.[Page 628]
The wording of Article I of the Treaty of December 18, 1913 for the Advancement of Peace between the Netherlands and the United States “to the settlement of which previous arbitration treaties or agreements do not apply in their terms”, were by the drafting of a treaty chosen on purpose to express the opinion that in case a dispute should be suitable under the treaty of arbitration, one of the parties could refuse the settlement in accordance with the procedure laid down by the Conciliation Treaty and insist upon arbitration following the Arbitration Treaty. Proof of this will be found in the negotiations for the Conciliation Treaty. The Secretary of State, Mr. Bryan, proposed to the Netherland Government a conciliation treaty13 of which Article I should have read as follows:
“The high contracting parties agree that all disputes between them, of every nature whatsoever, which diplomacy shall fail to adjust, shall be submitted for investigation and report to an International Commission, to be constituted in the manner prescribed in the next succeeding Article; and they agree not to declare war or begin hostilities during such investigation.”
In a note of December 13, No. 1452,14 the Netherland Minister informed the Secretary of State that Her Majesty’s Government would be very glad to conclude a treaty as proposed by Mr. Bryan but that a modification in Article I would be highly appreciated, in order to lay down that in case of international disputes the existing arbitration treaties should have to be followed in the first place so as to arrive, if possible, to a settlement of these disputes by arbitration. Only in the case the two Governments might fail to reach to an agreement on arbitration (f. i. by not approving of the compromise by the Senate) or in the case of the three exceptions that can be invoked following the arbitration treaty, the dispute should be referred to an International Commission. The original text of part of said note relating to this question reads as follows:
“… a stipulé expressément à l’article 1° qu’en cas de différends internationaux les traités d’arbitrage existants devront être observes en premier lieu afin d’arriver si possible à une solution arbitrate de ces différends.
“Ce n’est que lorsque les deux Gouvernements ne peuvent tomber d’accord quant à un arbitrage (par exemple dans le cas où le Sénat Américain rejeterait un compromis projeté) ou bien lorsqu’il s’agirait d’un des trois cas concernant l’honneur national, l’existence nationale ou Pintégrité du territoire, pour la solution desquels l’arbitrage est exclu, que le différend serait soumis à la commission permanente d’examen. Voilà pourquoi a été insérée à l’article premier la phrase ‘to the settlement of which previous arbitration treaties or agreements do not apply in their terms or are not applied in fact’.”
For this reason Minister van Rappard proposed to Mr. Bryan to insert the following words to Article I, “to the settlement of which previous arbitration treaties or agreements do not apply in their terms or are not applied in fact.”
On the 15th of December 1913 the Secretary of State, Mr. Bryan, informed Minister van Rappard orally that the Government of the United States accepted the suggestions and modifications made by the Netherland Government; which statement was forwarded telegraphically to The Hague the same day. A letter from Mr. Bryan dated December 15, 191315 confirmed this. The Government of the United States has here consequently adopted the principle that by international disputes in the first place be followed the provisions of the existing arbitration treaty and that every effort should be made to arrive to a solution by arbitration. Only in case this should prove not to be possible, the dispute would be laid before the Conciliation Commission.
Mr. James Brown Scott is of the same opinion and mentions, in the introduction of the publication of “Treaties for the Advancement of Peace Between the United States and Other Powers”, published in 1920 by the Carnegie Endowment for International Peace on page XL (40) that “the Netherland Government wanted to have it distinctly appear that, as far as it was concerned, the treaty was primarily to bring to investigation and report questions ordinarily reserved from the obligation to arbitrate contained in the general treaties of arbitration, although if the agreement to arbitrate under the general treaty or agreement has not been complied with, the Bryan treaty may then be utilized to cause the particular matter to be submitted to the commission. Such action is, however, to be the exception, not the rule.” Mr. Scott says also, concerning the limitation added to the draft of Article I of the treaty with The Netherlands: “This limitation is just and proper from every point of view.”
In order to remain in harmony with the high idea and intention of the promoter of the Conciliation Treaty, Mr. Bryan, and in order to conform with the system adopted in the other treaties signed by the Netherlands, the Government at The Hague should appreciate highly if the Government of the United States could accept to exchange notes at the time of the signature of the new arbitration treaty, in which notes would be mentioned that it is not the meaning that judicial disputes, which it has not been possible to adjust by diplomacy, should not as a rule be settled by arbitration. Whereas this question has been discussed by the drafting of the Bryan treaty and the Government at Washington adopted the point of view above exposed, the Netherland Government now expresses its sincere wish [Page 630] and feels confident that the United States Government will have no objection in the exchange of notes as proposed herewith.
In these notes could be expressed from both sides that the words: “which have not been adjusted as a result of reference to the Permanent International Commission constituted pursuant to the treatysigned at Washington, December 18, 1913” in Article I of the signed arbitration treaty between the Netherlands and the United States, do not have the intention to alter the meaning of the definition expressed in Article I of the Treaty for Advancement of Peace between the Netherlands and the United States, signed, December 18, 1913, whereby the agreement to submit disputes to the Permanent International Commission as a rule covers controversies “to the settlements of which previous arbitration treaties or agreements do not apply in their terms or are not applied in fact.”
The Royal Netherland Legation will be glad to hear from the Department of State that now its Government has adopted the draft as proposed by the Government of the United States, nothing will be in the way to proceed to the signature of the treaty and by this advance materially the noble structure of Arbitration.