710.G International Law/4: Telegram

The Chairman of the American Delegation (Hull) to the Acting Secretary of State

48. A. Argentina has proposed to third subcommittee of Second Commission (Clark our representative) following draft project on interpretation of treaties.

  • “1. As a general principle the rules on the subject relating to private law especially with respect to contract treaties are applicable to the interpretation of international conventions.
  • 2. In the interpretation of a treaty the enunciation contained in the preamble thereof must be taken into account.
  • 3. Words should be interpreted in accordance with the meaning which they usually have save when the interpretation resulting from the application of this rule would lead to results contrary to the reasonable one or to absurd results or when it has been decided to give them (i.e. the words) a technical meaning.
  • 4. The sense of a provision should be established in correlation with the other pertinent provisions of the convention.
  • 5. In case of disagreement on a term or clause the pertinent contents of the diplomatic documents and protocols previous to the treaty and the legislative discussion relating thereto (i.e. to the treaty) should be taken as a paramount element of interpretation in determining the intention of the parties.
  • 6. In order to establish the scope of a provision the acts of the contracting parties subsequent to the convention should be taken into account insofar as they are pertinent.
  • 7. In cases where there are no express clauses of retroactivity international conventions shall be applied to the future. The ratification of a convention does not have such retroactive effect.
  • 8. Obligations should be interpreted with restrictive judgment in favor of the states which must fulfill them.
  • 9. Bilateral treaties cannot be interpreted or applied in contradiction to the principles of international law where they may affect third parties.
  • 10. Rules relating to the restrictive or extensive interpretation of the provisions of a treaty may only be applied in cases where the ordinary methods of interpretation have failed.
  • 11. Even when a convention has been framed in general terms it should be understood that it only embraces those matters regarding which the parties desired to agree.
  • 12. When a diplomatic disagreement arises it belongs to the authority in charge of foreign affairs to interpret the international conventions.
  • 13. All questions relating to the interpretation of a treaty should be submitted to arbitration in the last resort.”

B. Clark is familiar with Department’s instruction pages 47–49.32

[Page 177]

C. A preliminary discussion of the draft today resulted as follows, the numerals referring to the numbered paragraphs of the draft convention.

Substitute “domestic” for “private” before “law”; strike out phrase beginning “especially” and ending “treaties”; add to end of clause “insofar as such rules are common to the juridical systems of the parties involved”.
Incorporate this paragraph into paragraph 5.
Make the final clause read “or when the treaty gives to them a technical meaning”.
Provisionally passed.
The Mexican delegate (Suarez) took serious objection to this frankly stating that it had a direct bearing upon the claims convention between the United States and Mexico. He stated the old common law rule regarding the incorporation of antecedent negotiations into a contract. Clark explained the modification of the rule with reference both to statutes and treaties.
Provisionally passed.
Provisionally passed.

D. The meeting adjourned without further considering draft.

E. Clark explained his consideration was ad referendum. He also explained confidentially to Uruguayan delegates after meeting closed that paragraphs 8 and 10 would require careful consideration by us because of possible effect on Panama Canal. He also told Uruguayan delegates that paragraph 5 could not be modified so as to give Mexico any advantage on claims commissions.

F. Will Department kindly telegraph its views regarding Argentine project.

Next meeting of subcommittee is Wednesday afternoon.

  1. Ante, pp. 6970.