Office of the Historian

710.G International Law/5: Telegram

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

Washington, December 13, 1933—11 a.m.

73. Your 48, December 12, 11 a.m.

1.
There would appear to be no objection to paragraph 1 as changed. It is suggested, however, that this paragraph might appropriately follow 10 or 11, and it might be desirable to preface it with a statement to the effect that “In the absence of other governing rules”.
2.
It is suggested that the word “must” in paragraph 2, which has become a part of paragraph 5, be changed to “may”, that the word “should” in paragraph 5 be changed to “may”, and that “paramount” be omitted.
Regarding the objection of Suarez, it should be said that the Supreme Court and international tribunals frequently refer to the diplomatic correspondence and contemporaneous statements by the treaty-making authorities in determining the intention of the parties.
3.
As to paragraph 7, our Supreme Court has held on various occasions that, except as regards private rights, the effect of the exchange of ratifications relates back to the date of signature. Extradition treaties are generally considered as retroactive, that is to say, they apply to offenses committed prior to their conclusion unless there is an express limitation. However, no objection is raised to this paragraph.
4.
There is considerable authority on both sides of paragraph 8. The Supreme Court has stated that it would not “readily lean to favor [Page 186] a restricted construction of language, as applied to the provisions of a treaty, which always combines the characteristics of a contract, as well as a law”, and that “Where a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred. Such is the settled rule of this Court”. For a contrary view see memorandum, Legal—Annex 2, page 5 and following.34 It is suggested that if paragraph 8 is adopted, the following clause should be added “unless this would defeat the manifest purpose of the parties as gathered from the entire instrument and other sources”.
5.
It is suggested that paragraph 9 be changed to read “Bilateral treaties cannot be interpreted or applied in derogation of the rights of third parties under international law”.
6.
There would probably be no objection to paragraph 12, except as regards private rights claimed under a treaty. As to these, the obligation of the parties to resort to the courts should not be impaired. The paragraph should be modified to cover this situation.
7.
As to paragraph 13, it is suggested that matters pertaining to arbitration should be left to the bilateral and multilateral arbitral agreements. Such a stipulation might obligate us to arbitrate with respect to the Panama Canal.
Phillips
  1. Not printed.↩