In the event that you receive inquiries concerning this
Government’s attitude with respect to the Treaty, you should say
that the Executive Branch of the Government has not yet decided
whether to submit the Treaty to the Senate for ratification in
the immediate future. You may point out that certain features of
the Treaty made it necessary for this Government at the time it
was signed to enter four reservations of far-reaching
effect;2 that we could
not abandon those reservations as the Treaty presently stands;
and that, on the other hand, we are reluctant to ratify such an
important document with reservations which go to the essence of
certain of its principal provisions.
[Enclosure]
confidential
November 22,
1948.
Ratification by the United States of
the “Pact of Bogota”
problem
The question is whether the United States should ratify the
“American Treaty on Pacific Settlement” (Pact of Bogotá),
and particularly whether it should be submitted to Congress
for advice and consent to ratification.
recommendations
1. It is recommended that the Treaty should not be submitted
for advice and consent.
2. However if a substantial number of the American republics
ratify the Treaty, the question of United States
ratification should be reconsidered.
[Page 421]
discussion
1. First
Recommendation
The above recommendation is based on reasons falling into two
categories, first, those of a general character and, second,
those based on an analysis of the Treaty itself.
General Objections
1. The specific objections to the Treaty itself, to be
referred to later, taken in combination, give the Treaty an
over-all character at variance from our concept of sound
procedures of pacific settlement. The mere provisions of
certain unacceptable procedures are not the basic reason for
not wishing to submit the Treaty, but rather the unorthodox
and, it is believed, improper manner in which they are set
forth and related to each other. While parts of the Treaty,
especially the first two chapters, can be taken as a fair
restatement of principles and procedures previously
established in the Inter-American System this is not the
case with the Treaty taken as a whole. In addition there is
a considerable amount of bad drafting and unnecessary
complexities. The over-all result is a document so
unsatisfactory that it is not believed that the Department
or the Executive Branch should sponsor it.
2. It is possible that in due course a more satisfactory
treaty can be agreed to by the American States. However,
widespread ratification of the present Treaty would probably
prejudice such a development. Ratification by the United
States would encourage ratification by other countries.
3. The United States Delegation at Bogotá found it necessary
to reserve on four points when signing the Treaty. Three of
these reservations make the Treaty inoperative with respect
to this Government on points essential to its main purpose.
While the Delegation probably did all that was necessary to
protect this Government’s position, the Senate would quite
possibly find other points on which it desired to make
additional reservations. Considering that this Treaty is one
of the first acts of the reconstituted Inter-American
System, it appears preferable not to ratify it rather than
to enter into it with numerous reservations resulting in
making the Treaty largely without force as to its most
important elements.
4. The considerations last mentioned concerning reservations
would damage the Department’s case for the Charter of the
Organization of the American States which will be submitted
at the same time and to which we desire to give our full
support.
Substantive Objections to Treaty
1. The most important feature of the Treaty is unacceptable
to the United States. This is the provision of a general
obligation to submit to
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arbitration or judicial settlement all
disputes, legal or non-legal, with automatic procedures
provided for the compulsory arbitration of disputes not
susceptible of judicial determination. The United States has
accepted the obligation to refer legal questions to the
International Court of Justice and in fact advocated the
general acceptance of such an obligation in this Treaty,
However, the additional obligation to submit to arbitration
disputes based on grounds other than law is one which the
United States is not willing to accept. The provisions of
this Treaty would result in the possibility that claims for
the alteration of existing law (i.e. boundaries, treaties,
etc.) could be taken by the claimant state before ad hoc tribunals the composition of
which would not be known in advance. The United States has a
consistent policy favoring the submission to adjudication of
disputes involving the interpretation of existing law, but
believes that questions regarding necessary changes in such
law should be determined case by case by appropriate
measures. Such measures might include arbitration, but this
should be decided in the light of the individual case. We
could not undertake such a blanket commitment as is here
envisaged. For this reason the Delegation interposed a
reservation that any obligation to arbitrate, as
distinguished from judicial settlement, shall be dependent
upon the conclusion of a special agreement between the
parties to the case.
Furthermore as a practical matter there are disputes which it
is better not to force to settlement. The conceptual
approach that every dispute must have its settlement is
unsound.
2. The Treaty contemplates an improper utilization of the
International Court of Justice. The procedure by which the
compulsory arbitration provisions just referred to may be
invoked under this Treaty contemplates that the parties
shall first attempt conciliation and, if this is not
successful, either of them shall be entitled to refer the
matter to the International Court of Justice. If the Court
determines that the matter is not proper for judicial
settlement, the matter may be submitted to the arbitral
procedure on the motion of either party. This procedure
assumes to confer upon the parties the right to refer to the
International Court of Justice any dispute whether properly
within its jurisdiction or not. In fact such a procedure is
necessary if the arbitration clauses are to be invoked.
While it is possible under the Statute of the Court to place
any matter before it, the Court’s jurisdiction is normally
limited to questions of law. Consequently it is improper for
states to adopt such provisions as those of the present
Treaty contemplating that states should deliberately take to
the Court matters which they do not consider to be properly
within the Court’s jurisdiction. It is a procedural device
intended to separate those cases which are justiciable from
those which are not, but the device is one which indicates a
lack of respect for the proper role and
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functioning of the Court. The
United States Delegation therefore interposed a reservation
to the effect that it would not undertake as plaintiff to
submit to the Court any controversy which it does not
consider to be properly within the Court’s jurisdiction.
3. The Treaty contains a provision obligating the parties to
accept the jurisdiction of the Court in legal cases. The
United States advocated such a provision. However, the
article as adopted makes no provision for any reservation or
limitation on the jurisdiction thus granted, despite the
fact that practically all countries accepting the Court’s
jurisdiction by declaration pursuant to Article 36(2) of the
Statute3 have
made some reservations. Accordingly the United States
Delegation interposed a reservation to the effect that its
acceptance of jurisdiction would be limited by such
reservations as contained in any declaration interposed by
it under Article 36 of the Statute of the Court.
4. Although the language of the Treaty is not completely
clear, it may be interpreted as binding a party to
compulsory conciliation at the initiative of any other
party. There appears to be a clear obligation on the parties
to take steps which would result in the creation of a
commission for the consideration of any case. A refusal to
take such steps would be a breach of the Treaty and there
would presumably be a moral obligation to cooperate in the
conciliation procedure and to give due regard to any
resulting recommendations. While we have other
Inter-American treaties of conciliation, their operation is
limited to controversies which it may not have been possible
to settle through normal diplomatic channels. The absence of
such a qualification in the present Treaty results in making
it somewhat more binding both in a legal and moral sense.
The acceptance by this Government of compulsory conciliation
might be considered a reasonable step in advance in the
general direction of improved political cooperation among
states. However, the decision to take this step has not yet
been made and it is not believed that it should be made by
means of an Inter-American Treaty providing for commissions
whose membership would naturally tend to be predominately of
Latin American nationality.
5. The foregoing are the principal points on which the Treaty
is found objectionable. It may well be that these procedures
are formulated in such a way that the likelihood of their
being used effectively, especially to the conclusion of a
compulsory legally binding arbitral decision, are rather
remote. The various procedures are related to each other in
an unorthodox and complex manner giving the Treaty the
appearance of a theoretical exercise rather than a practical
approach
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to the
solution of international problems. On the other hand there
is the possibility that the Treaty might be invoked in a
manner distasteful or unacceptable to this Government. This
combination of factors appears to make it preferable not to
submit the Treaty for ratification.
6. It is not believed necessary to deal with other
objectionable aspects, but it may be mentioned that the
Latin American delegates finally succeeded, after
unsuccessful efforts elsewhere, in bringing into this Treaty
(Art. VII), a provision which would greatly limit the
international right of diplomatic protection. This article
was also the subject of a reservation interposed by the
United States Delegation.
2. Second
Recommendation
The second recommendation indicates that if, in due course a
number of American Republics ratify the treaty the question
of United States ratification should be reconsidered. Among
the considerations that might lead to a future change of
position in the contingency noted is that the United States
might prefer to ratify with such reservations as might be
necessary, rather than to perpetuate in existence a series
of treaties which had for a substantial number of countries
been replaced by the single treaty.
