711.9212A/12

The Siamese Legation to the Department of State6

Aide Memoire

The counter draft of the Treaty of Arbitration submitted herewith by the Royal Siamese Government differs from the draft submitted by the Government of the United States in four particulars. The views of the Royal Siamese Government thereon will be briefly stated.

I

A new paragraph has been added to Article I of the Original Draft reading as follows:

“There shall be considered as included among the international questions of a juridical character:

A.
The interpretation of a treaty
B.
Any question of international law
C.
The acceptance [existence] of any fact which if established would constitute a breach of an international obligation
D.
The nature and extent of the reparation to be made for the breach of an international obligation.”

This list of questions which are definitely stated to be covered by the general language of Paragraph I of Article I, is exactly similar to the list of juridical questions which appear in the provisions of the Statute of the World Court concerning compulsory arbitration. It also is contained in the existing Treaty of Arbitration between the Royal Siamese Government and the Government of Netherlands.7 It is not claimed that this addition to Article I broadens the scope of the Article, but obviously it clarifies it.

The Royal Siamese Government has noted the fact that the Pan-American Treaty signed at Washington in December 19288 contains likewise the same list of questions which are included as questions of a juridical character. In the Article concerning this Pan-American Agreement published in the Yale Review, Summer 1929, and written by Ex-Secretary of State, Charles E. Hughes, it is stated:

“No objection can be taken to these categories. They constitute the classical statement of certain questions that are undeniably justiciable.”

The Royal Siamese Government considers the addition of this list of questions a distinct improvement over the original draft and in [Page 763] view of the action of the United States Government in the Pan-American Convention held in Washington in 1928,9 it assumes there will be no objection to accepting this counter proposal in regard to Article I.

II

Article I of the original draft submitted by the Government of the United States not only defines the disputes which were covered by the Treaty, but also provided that such disputes should be submitted to the Permanent Court of Arbitration established at the Hague, or to some other competent tribunal. In the draft submitted by the Royal Siamese Government, the provisions concerning the arbitration tribunal are placed in a new Article II.

This Article provides briefly that the court of arbitration shall be the Permanent Court of Arbitration established at the Hague.

The provision in the original draft concerning a special agreement and the provision that such an agreement shall be made on the part of the United States by the President of the United States by and with the advice and consent of the Senate and on the part of Siam in accordance with its customary law have been omitted. Such provisions seem unnecessary. Whether stated or not, some other tribunal may be selected by mutual agreement, and such an agreement would have to be made in accordance with the fundamental laws of each country.

III

Article II includes also a new provision stating that in the event of any dispute as to whether the Court of Arbitration has jurisdiction of any case in accordance with the provisions of the Treaty, the matter shall be referred to and decided by the Arbitration Court. This provision appears in the existing treaty between the Royal Siamese Government and the Government of Netherlands. A similar provision also appears in the Statute creating the World Court in the Article with regard to compulsory jurisdiction.

Even with the utmost care it is extremely difficult to word a treaty in such a way as to leave no possible cause for difference of opinion as to its interpretation or application. It seems therefore desirable to provide in a treaty of arbitration which in general covers all questions concerning the interpretation of treaties, an explicit provision that any possible dispute concerning the application of the arbitration treaty itself should be submitted to the Arbitration Court.

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IV

Article III as submitted by the Government of the United States contains four exceptions to the provisions of the Treaty. The counter proposal of the Royal Siamese Government omits the first two exceptions, to wit:

A.
Is within the domestic jurisdiction of either of the High Contracting Parties
B.
Involving the interest of third Parties

Neither of these exceptions appear in the existing Treaty of Arbitration between the Royal Siamese Government and the Government of the Netherlands, nor in the provision of the Statute of the World Court concerning compulsory arbitration.

Obviously a matter which is exclusively within the domestic jurisdiction of either of the High Contracting Parties is not an international dispute of a juridical nature. It is assumed that Exception A was stated in order to make it clear beyond a doubt that the Treaty does not apply to cases which are covered solely by domestic law and which have not been made the subject of any Treaty or Convention. This is so clearly implied in the language of Article I that it seems unnecessary to state it.

Therefore, the Royal Siamese Government would prefer to omit entirely Exception A. If the Government of the United States deems it essential that some exception of this nature should be included in the Treaty, then His Majesty’s Government would suggest the following:

A. Is within the domestic jurisdiction of either of the High Contracting Parties and is not controlled by international law or by any treaty between the High Contracting Parties or any international convention or agreement to which both High Contracting Parties are signatories.

This language is similar in part to that which appears in the Pan-American Treaty of Arbitration which was signed at Washington in December 1928. In that Treaty the clause concerning Exception A reads as follows:

“There are excepted from the stipulations of this treaty, the following controversies:

A. Those which are within the domestic jurisdiction of any of the parties to the dispute and are not controlled by international law.”

It seems desirable to add to this the further statement that such controversies are not controlled by any treaty or any international convention or agreement which is binding upon both Governments.

The expression “international law” by itself is not broad enough to cover matters which have been made the subject of a treaty or international [Page 765] convention. It appears from the Article by Ex-Secretary of State, Charles E. Hughes, already referred to, that it was not intended that the exception should cover matters which are controlled by treaty provisions, as the following quotations show:

“When the Treaty accepts [excepts] those controversies ‘which are within the domestic jurisdiction’ and ‘are not controlled by international law’ there was obvious reference to those situations in which matters that otherwise would fall within the domestic jurisdiction have by reason of an international transaction, through treaty, for example, become the subject of international consideration because they import international obligations.” (Yale Review—Summer 1929—Page 655)

“The Pan-American treaty recognizes, as I have stated, that what might otherwise fall within the domestic jurisdiction exclusively may be Drought into the international sphere through an international agreement. States are constantly making treaties, removing causes of differences and establishing rights and obligations with respect to matters which are not governed by international law. But when the treaty or convention is entered into, and international rights and reciprocal international obligations are created, the interpretation of that treaty is not exclusively a domestic matter but one of proper international concern. … Where international obligations are involved the Pan-American Treaty makes no exception. …” (id. Page 656)

With regard to the exception of disputes involving other states, it would seem that no explicit reservation need be stated. No such exception appears in any of the existing treaties between Siam and other Governments, nor does it appear in those provisions of the Statute creating the World Court regarding compulsory arbitration.

The statement in the original draft that any case, which involves the interest of third parties “is excepted” from the Treaty is so general as to cause some doubt in the mind of the Royal Siamese Government as to its exact scope.

The Royal Siamese Government has entered into general treaties of friendship and commerce with some fourteen European and American Governments. These treaties vary in a large measure.

In some cases certain matters such as the right to acquire property including land are dealt with by specific grants. In others these same matters are covered only by a most favored nation provision. Any dispute with regard to the exact scope of the grant of express rights would inevitably involve the interest of other countries whose treaties include a favored nation clause. Clearly, however, such a dispute should not be excepted from the provisions of the Arbitration Treaty, yet the language of the exception as stated seems to be broad enough to cover such a case.

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V

There is one further matter which His Royal Majesty’s Government desires to suggest for the consideration of the Government of the United States. The Siamese Government has adhered to the Statute creating the World Court and it assumes that if the United States had adhered thereto, without a doubt the Permanent Court of International Justice would be selected as the arbitration tribunal. If, therefore, before the negotiations of the arbitration treaty are concluded, the Government of the United States should adhere to the Statute creating the World Court, His Royal Majesty’s Government would desire to change Article II by providing that the court of arbitration should be the Permanent Court of International Justice; or if it should appear likely that the Government of the United States were going to adhere to the Statute creating the World Court, a provision should be added to the Treaty, stating that if at any time while this Treaty of Arbitration is in effect, the Government of the United States should adhere to the Statute creating the World Court, that the court of arbitration should be The Permanent Court of International Justice.

VI

The Royal Siamese Government considers these changes in the Treaty of Arbitration of considerable importance quite apart from its relations with the Government of the United States. There are few American interests in Siam and the trade and commerce between the two countries is so slight that there is little likelihood that any controversy will arise which would be affected by an arbitration treaty. However, the negotiation of a treaty with the Government of the United States might have considerable effect as a precedent in the negotiations in the future of arbitration treaties with European countries which have large interests in Siam. It is the desire of the Royal Siamese Government to secure with such countries as wide and unlimited treaties of arbitration as possible. The counter draft submitted herewith is substantially similar to the arbitration treaty already existing between the Royal Siamese Government and the Government of the Netherlands. The Royal Siamese Government would be somewhat reluctant to negotiate with the United States an arbitration treaty of more limited scope.

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VII

There is not submitted herewith any counter draft of the Treaty of Conciliation submitted by the Government of the United States. The Royal Siamese Government is in entire sympathy with the spirit of this Treaty but there is one suggestion which it would like to make. In view of the slight contact between the two Governments, it is unlikely that the International Commission, created by the Treaty, will in fact ever be called upon to act. It seems, therefore, unnecessary to set up the Commission within six months after the Treaty is ratified. It is therefore suggested that the Commission need not be appointed until some controversy arises, or until either Government makes a request that the Commission should be appointed.

[A Treaty Division memorandum of July 14, 1930 (711.9212A/14), states:

“The negotiations instituted by note of July 31, 1928, to the Minister of Siam at Washington, for the negotiation of treaties of arbitration and conciliation between the United States and Siam, have remained in abeyance for something like one year, because of the desire of Siam to obtain more far-reaching agreements than the Department has seen its way clear to accept.

“Siam desires a treaty of arbitration based upon the General Treaty of Inter-American Arbitration which a year ago, as now, awaited approval by the Senate. Officers of the Department have taken the position that it would be unwise to sign a new treaty based upon the inter-American formula until the treaty before the Senate has received favorable action. …”

The Inter-American Arbitration Treaty was not approved by the Senate until April 1, 1935.]

  1. Handed to the Chief of the Division of Far Eastern Affairs by the Siamese Minister, November 30, 1929.
  2. October 27, 1928; League of Nations Treaty Series, vol. xciii, p. 131.
  3. The General Treaty of Inter-American Arbitration was signed at Washington, January 5, 1929; vol. i, p. 659.
  4. The International Conference of American States on Conciliation and Arbitration, December 10, 1928–January 5, 1929. See vol. i, pp. 653 ff.