The Secretary of State to the Embassy in the Philippines
A–36. Dept agrees statement third par. your 1147, June 25, 1948,2 that withdrawal previous notes should be separate and apart from new exchange of notes.
In addition to reference to Emb’s 1147, June 25, reference is to Dept’s 952 July 28, Emb’s 1795 Sept. 17, and 2104 Oct. 26, all 1948.3
In conformity with Dept’s 952, July 28, and for your convenience, Dept suggests following text of note be sent FonOff, after first taking up matter informally with FonOff, which with FonOff’s reply quoting Emb note and accepting US interpretation in note, would constitute the exchange of notes as to the meaning of Art. 3.
“Excellency: I have the honor to refer to the last paragraph of Article III of the Treaty of Conciliation signed at Manila on November 16, 1946, by representatives of our two Governments,4 which reads as follows:
‘Should no definite settlement be reached, notwithstanding the report and recommendations of the International Commission on the matter in dispute, the High Contracting Parties agree to submit the dispute to the jurisdiction of the International Court of Justice conformably with Article 36 of its Statute, and further agree to be bound without need of special agreement by the decision of the Court.’
It is suggested that this note and your reply thereto, shall record the agreement of our respective Governments that the paragraph relates, so far as reference of disputes to the International Court of Justice is concerned, to disputes of a legal character.
I am directed by my Government to inform Your Excellency that it is recognized that, if a difference of view should arise in a particular case on the point of whether a dispute is or is not of a legal character, that point of character ultimately would be for decision by the International Court of Justice.
It is further suggested that the phrase ‘without need of special agreement’ [Page 592] should be transferred from its present position to follow the words ‘Article 36 of its Statute’.
It is understood that the two Governments desire and intend to negotiate as soon as possible a treaty of arbitration.
Accept, Excellency, etc.”
Note Dept would not describe even generally jurisdiction of arbitral tribunals in present exchange of notes.
At the time of delivery of the above note you should also make the following statement:
“It is of course understood that the reference in Article III to submission to the International Court of Justice ‘conformably with Article 36 of its Statute’ means as provided in Article 36 of the Statute, including under such conditions as the two Governments may have stipulated in their respective acceptances of the compulsory jurisdiction of the Court.”