711.5612a/6
The Netherlands Minister (Van Royen) to the Secretary of State
Aide-Mémoire
The Netherland Legation has transmitted to the Government at The Hague the communication of the Secretary of State of March 29, 1928, concerning a new arbitration treaty, and the draft that was enclosed.32
The Netherland Minister for Foreign Affairs has learned with great satisfaction the wish of the United States Government to give extension to the existing policy of arbitration. Jonkheer Beelaerts van Blokland however is desirous of submitting the following remarks to the attention of the Secretary of State.
It might be preferable to omit in Article I the words “which have not been adjusted as a result of reference to the Permanent International Commission, constituted pursuant to the treaty signed at Washington December 18, 1913.” The reason for this suggestion is as follows.
The so-called “Bryan-Treaty”, existing between the United States and the Netherlands in Article I is based on the principle, that before [Page 413] the “Bryan-Commission” will be brought the differences that are not submitted to Arbitration. The Netherland Government agrees with this idea. Arbitration and inquiry by the “Bryan-Commission” are thought in that treaty as procedures existing one beside the other and prescribed each for separate categories of cases. In the arbitration treaty now in force the cases that are submitted to arbitration, are described somewhat differently from those comprised in the proposed treaty and the exceptions especially are formulated differently. But in general in both treaties juridical differences are submitted to arbitration. The juridical differences that are excepted, the non-juridical differences and the differences that are not judged by arbitration in fact are submitted to the “Bryan-Commission.”
This idea is logical and it seems desirable to maintain it.
By inserting in Article I of the new treaty the above mentioned sentence, the supposition is created, that differences, that this treaty has in view (juridical differences in other words) have to be submitted at any rate first to the “Bryan-Commission.” This would be for the Netherlands a considerable change in their policy. It is true, that there are several Powers who, in their treaties, stipulate that the conciliation procedure shall be followed before any other settlement of differences, but the Royal Government has not deemed this advisable. In all its treaties the Netherlands Authorities have applied the system, that, at the request of one of the parties, juridical differences are judged at once by arbitration or jurisdiction in the Permanent Court of International Justice and that only by mutual agreement they can first be submitted to a conciliation commission.
If the above mentioned passage of Article I should be maintained, the stipulations of this Article and of Article I of the “Bryan-Treaty” would not properly harmonize. Article I of the new arbitration treaty supposes a procedure in the “Bryan-Commission” which, according to Article I of “the Bryan-Treaty”, could not take place.
Jonkheer Beelaerts van Blokland, in making these remarks, starts from the idea, which is probably held likewise by the American Government, that, where Article I of the “Bryan-Treaty” speaks of “previous arbitration treaties or engagements”, it is understood, that these arbitration treaties are previous to the difference and not that they are previous to the “Bryan-Treaty”.
Differences arising after the conclusion of the new arbitration treaty and falling within the scope thereof, consequently are excluded likewise from the application of the procedure of the “Bryan-Commission”.
Apart from the new arbitration treaty, it is important that there exist no doubt on this point. The interpretation given by Jonkheer Beelaerts van Blokland to Article I of the “Bryan-Treaty” is required also in connection with the existing arbitration treaty, inasmuch as [Page 414] this is prolonged every five years, by which prolonging in fact each time a new arbitration treaty is concluded. The reason that prompted the stipulation of Article I of the “Bryan-Treaty” entails the natural fact, that not only the arbitration treaties which had been concluded on the moment of the signing or ratification of the “Bryan-Treaty”, but also those concluded afterwards, prevail over the procedure in a “Bryan-Commission”. This has also been the obvious intention when the Arbitration Treaty of 1908 was signed.
It is to be considered a progress that—as suggested—more precise exceptions—albeit still wide—take the place of the vague exceptions of differences concerning the honor, independence and vital interests. Especially the exception concerning the differences “involving the interests of third parties” must be considered as still wide. This exception—which figures likewise in the now existing treaty between the United States and the Netherlands—in the opinion of the Minister of Foreign Affairs at The Hague does not seem necessary nor very desirable. Since modification of the existing treaty has been taken up now, it seems advisable to consider whether that exception could not be omitted. It is vague and elastic and therefore undesirable: The number of cases in which a difference can concern, in a remote connection, likewise the interests of others, is legion. The convention of 1907 for the peaceful settlement of international differences33 (ratified by the United States) therefore started from another principle. Article 84 of that convention stipulates:
“La sentence arbitrale n’est obligatoire que pour les Parties en litige. Lorsque ‘il s’agit de l’interprétation d’une convention à laquelle ont participé d’autres Puissances que les Parties en litige, celles-ci avertissent en temps utile toutes les Puissances signataires, chacune de ces Puissances a le droit d’intervenir au procès. Si une ou plusieurs d’entre Elles ont profité de cette faculté, l’interprétation contenue dans la sentence, est également obligatoire à leur égard”.
Similar stipulations are to be found in the Statute of the Permanent Court of International Justice.
This same line of thought, which Jonkheer Beelaerts van Blokland considers the logical one, has been followed in the Netherlands-German arbitration treaty,34 which stipulates in paragraph 3 for the final protocol: “The fact that in a difference third States are concerned, does not prevent the application of the treaty”. “The contracting parties, when the case presents itself, shall seek to persuade third States to join the arbitration or conciliation procedure”. In this case the respective Governments have the right to arrange by mutual agreement [Page 415] for the special composition of the Court of Arbitration or of the Permanent Commission of Conciliation. In case no agreement with third States, concerning their joining the proceedings, can be reached within a reasonable time, the procedure shall follow its course between the signatories of the arbitration treaty as provided thereby, and with consequence only for them.
Likewise it is stipulated in the Netherlands-French treaty, concluded recently:
“Le présent Traité reste applicable entre les Hautes Parties contractantes, encore que d’autres Puissances aient également un intérêt dans le différend”.35
In many treaties, concluded by other Powers, a similar stipulation has been made.
Should the American Government object to an explicit stipulation as is made in these treaties, Jonkheer Beelaerts van Blokland would propose simply to do away with exception No. 2 and not to mention this point at all.
As to the question whether it is preferable to let the new treaty supersede the arbitration convention of May 2, 1908, as proposed in the draft of His Excellency Mr. Kellogg, or to make March 25, 1929 the effective date of the new treaty, Jonkheer Beelaerts van Blokland is of the opinion, that much depends on the time at which the new treaty will be completed. The sanction by the Senate in the United States and the approval by the legislature in the Netherlands require considerable time.
The Netherlands Minister for Foreign Affairs, in connection with alinea 2 of Article 3, wishes to make the following suggestion. The clause by which termination of the treaty by one year’s written notice is made possible, has the advantage of great simplicity but presents one difficulty. This system would give to one of the parties, at the moment that a difference may arise, the opportunity of denouncing the treaty and of preventing the difference from being submitted to arbitration. This objection, which between the United States and The Netherlands, is of course hardly more than imaginary, could be met if the system was followed, adopted in the Hollando-German and Hollando-French arbitration treaties, according to which the treaty will be valid at once for 10 years and is supposed to be prolonged for 5 years if notice is not given within six months before the expiration of the term of 10 years. Notice can further be given six months before the expiration of each term of 5 years, failing which the treaty will be prolonged each time for 5 years.
[Page 416]The Minister of Foreign Affairs at The Hague wishes it to be well understood that these remarks, made for the purpose of coming to a better and earlier agreement, should not convey the impression, that the proposal, made by the Secretary of State, has not been received at The Hague with great satisfaction.
- Not printed.↩
- Signed at The Hague, October 18, 1907, Foreign Relations, 1907, pt. 2, p. 1181.↩
- Treaty of May 20, 1926, League of Nations Treaty Series, vol. lxvi, p. 103.↩
- Article 21 of treaty of March 10, 1928, ibid., vol. cii, pp. 109, 119.↩