I suggested, however, that much had been accomplished by the examination of the question by Mr. Maxwell Blake and Señor Pla, and that it would not do to throw all that overboard. I went into Mr. Blake's contention that he and Señor Pla had been furnished with full powers by their respective Governments to settle the question between them, and to this Señor Barcenas replied in the most positive manner that his Government had never given Señor Pla such powers. He said that the latter had been fully authorized to negotiate with Mr. Blake for a settlement but that the result of the joint negotiations had to be submitted to Madrid for approval and possible correction before a binding agreement could be made, and he showed me the copy of a note addressed on February 25, 1928 by Mr. Kellogg to Señor Padilla 55 which, taken by itself, seemed to indicate nothing more extensive than an intention to clothe Mr. Blake with powers necessary to make a report. He reminded me that the last Spanish note on the subject, that of January 22, 1930, signed by Señor Palacios, which was submitted to you in my No. 49 of February 27th, had never been answered in writing, and I said that as I expected to go home on leave in October, I would go over the whole question at the Department of State and attempt to find a solution that would be mutually acceptable.

During the course of the conversation I presented all the points of principle for which you have contended and succeeded in getting Señor Barcenas to admit that his Government would no longer urge the question of our abandonment of the Capitulations in the discussion of the claims. He was not, however, willing to yield anything on the point of the Spanish objection made to the territorial item of SidiDris-El-Kettani in the note of January 22, 1930, an objection which had been interjected after the Pla-Blake Joint Report, saying that these lands had been bought by the Spanish Government in good faith from the Sultan of Morocco and that the question of who had possessed the title to them before the purchase was one that must be decided by the competent courts.

I do not think the Spanish Government is unwilling to reconsider its position touching these Claims, and this is indicated by Señor Barcenas' present attitude toward the matter of the Capitulations; but I am not confident of a desirable result in continuing written remonstrances to the Spanish Government without having the advantage of conversations at the Department in Washington which I earnestly hope I may be allowed at an early date.

Respectfully yours,

55 Foreign Relations, 1928, vol. 1, p. 346.

IRWIN LAUGHLIN

NETHERLANDS

ARBITRATION TREATY BETWEEN THE UNITED STATES AND THE NETHERLANDS, SIGNED JANUARY 13, 19301

711.5612a/27

The Netherlands Minister (Van Royen) to the Secretary of State'

No. 1333

With reference to its aide-mémoire of June 27, 1928, No. 1949, the Netherlands Legation has the honor to state that the Netherlands Minister for Foreign Affairs has learned with great interest the contents of the first article of the Arbitration Treaty signed by the American States at the occasion of the International Conference on Conciliation and Arbitration of Washington (December 10, 1928January 5, 1929).*

As is known to His Excellency the Secretary of State the first article of that treaty reads as follows:

"The High Contracting Parties bind themselves to submit to arbitration all differences of an international character which have arisen or may arise between them by virtue of a claim of right made by one against the other under treaty or otherwise, which it has not been possible to adjust by diplomacy and which are juridical in their nature by reason of being susceptible of decision by the application of the principles of law.

"There shall be considered as included among the questions of juridical character:

"(a) The interpretation of a treaty;

"(b) Any question of international law;

"(c) The 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."

The Netherlands Minister for Foreign Affairs would greatly appreciate if the terminology of this first article could be used likewise in the first article of the American-Netherlands Arbitration Treaty.

The article, if the United States Government prefers-in the same way as in the draft for the American-Netherlands Treaty, submitted by the State Department 5-could begin with the words, "All differ

1 For previous correspondence, see Foreign Relations, 1928, vol. 1, pp. 412 ff. Handed to Assistant Secretary of State Castle on May 10, 1929. Foreign Relations, 1928, vol. III, p. 412.

Signed January 5, 1929; ibid., 1929, vol. 1, p. 659.

• Draft not printed. It was identical in effect with treaty signed with France on February 6, 1928; ibid., 1928, vol. ñ, p. 816.

ences", after which, like in the above quoted article, the words "of an international character etc. etc." would follow and after the words "principles of law" the words "shall be submitted etc. etc." of the above mentioned draft could be maintained as the continuation and end of the sentence.

The Netherlands Minister for Foreign Affairs prefers the above quoted text of the Inter-American Treaty on account of its being simpler and for the reason that the word "equity" (a juridical notion which does not seem well-defined to non-Anglosaxon minds) does not appear in it. Jonkheer Beelaerts moreover considers important, that the enumeration has been inserted of the above quoted groups (a) to (d), which likewise has been entered in several treaties concluded by the Netherlands. This, no doubt, during the discussion of the treaty in the States-General, will make the replacement of the old treaty by the new one more acceptable.

Besides, in art. 2 of the Inter-American Treaty of Washington an exception is made for differences "(a) which are within the domestic jurisdiction of any of the Parties to the dispute and are not controlled by international law." The underlined words 5a do not appear in the draft submitted by the United States to The Netherlands last year. At the same time, they give a more precise description of the exception. For, if a case lies albeit "within the domestic jurisdiction of any of the parties" but is subject at the same time to international law, there is no reason to withdraw it from arbitration. The additional determination expresses more clearly, that, in order that a case may be withheld from arbitration, it is not sufficient that, according to the internal legislation of a State, a difference belongs to its own jurisdiction, but that, moreover, it is required, that such difference be not subject to international law. The same precise determination would be obtained more or less by inserting the word "inclusive" before "domestic jurisdiction" but the text of the Inter-American Treaty is clearer.

It is by no means the intention of the Netherlands Minister for Foreign Affairs to cause, by his modification proposals, delay in the negotiations of the new Netherlands-American Arbitration Treaty. But as it is clear, that certain stipulations in a treaty signed by the United States are decided improvements, Jonkheer Beelaerts deems it his duty, not to fail to make an effort to insert those improvements also in the American-Netherlands Treaty. The Netherlands Legation therefore has been directed to submit the foregoing remarks to the kind consideration of the Secretary of State.

Though perhaps superfluous, the Netherlands Legation ventures to draw the attention of the State Department to the fifth paragraph of 5a Printed in italics.

the preamble of the draft, the latter has submitted, where, since the temporary prolongation of the present treaty, the words "which expires by limitation on March 25, 1929" should now be cancelled. WASHINGTON, May 9, 1929.

711.56128/32

The Acting Secretary of State to the Netherlands Minister (Van Royen)

WASHINGTON, June 14, 1929.

SIR: I have the honor to refer to aide-mémoires No. 1949, which you handed to Mr. Kellogg on June 28, 1928, and No. 1333, which you left with Mr. Castle on May 10, 1929, concerning the proposal for a treaty of arbitration between the United States and the Netherlands which was made in this Government's communication dated March 29, 1928.7

I am gratified to note, in the earlier aide-mémoire, your statement that the proposal was received with satisfaction at The Hague. There were, however, certain counter-suggestions which, in accordance with your Government's desire, have been considered and may be answered as follows:

(1) It might be preferable, your Government feels, to omit in Article 1 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." This is the Treaty of Conciliation which, you will recall, became effective on exchange of ratifications March 10, 1928. Article 1 provides that all disputes between the two parties, "to the settlement of which previous arbitration treaties or agreements do not apply in their terms or are not applied in fact, shall, when diplomatic methods of adjustment have failed, be referred for investigation and report to a permanent International Commission." Your Government appears to feel that this language may be inharmonious with the language of Article 1 of the proposed arbitration treaty, providing that justiciable disputes which it has not been possible to adjust by diplomacy and "which have not been adjusted as a result of reference to the Permanent International Commission" shall be submitted to arbitration and that it would be preferable to have the language of both conventions such as to require a stated arrangement for the invocation of investigation by commission or of arbitration, depending upon the nature of the dispute.

See Foreign Relations, 1929, vol. 1, pp. 539 ff.

? Not printed; but see telegram No. 11, March 29, 1928, 5 p.m., ibid., 1928, vol. I, p. 412.

8 Ibid., p. 408.

While fully appreciative of your Government's position, this Government doubts the necessity as well as the desirability of this change. The Treaty of 1913 should be read with the proposed treaty of arbitration. As this Government construes the language of the two instruments the remedies of conciliation and of arbitration exist side by side, indeed, but neither takes precedence over the other. The party which shall desire to invoke one of these remedies for the settlement of a particular dispute will always have the option of deciding which remedy it will propose. Either remedy may be proposed before the other provided, of course, that it is suitable under the treaties for the adjustment of the dispute.

This attitude of the Government of the United States is brought forth clearly in the recent treaties signed by this Government with the Government of Germany. The signature took place on the same day, May 5, 1928.9 Article I of the Conciliation Treaty provides that "any disputes . . . of whatever nature they may be, shall, when ordinary diplomatic proceedings have failed and the High Contracting Parties do not have recourse to adjudication by a competent tribunal, be submitted for investigation and report to a permanent International Commission." Article 1 of the Arbitration Treaty provides that justiciable differences which have not been adjusted by diplomacy or "as a result of reference to an appropriate commission of conciliation," shall be submitted to the Permanent Court of Arbitration at The Hague or to some other competent tribunal.

Although the language used in Article I of the Conciliation Treaty with the Netherlands differs somewhat from that in the Treaty with Germany, I consider that the construction of the two should be the same. Wherever the dispute is of such a character that it may be settled in accordance with the procedure laid down by either the Arbitration Treaty or the Conciliation Treaty the party proposing a settlement may also name the procedure. Of course, if the dispute is not justiciable, the remedy of conciliation alone is available.

I concur with the opinion of your Government that the expression "previous arbitration treaties or engagements" in Article 1 of the Treaty of 1913 refers to arbitration treaties which exist previous to the dispute referred to, not previous to the conciliation treaty.

In view of the foregoing statements it may appear to be a repetition for me to refer to the conclusions expressed on page 6 of the Legation's aide-mémoire of June 27th, that differences arising after the conclusion of the new Arbitration Treaty and falling within its scope are excluded from the application of the procedure under the Conciliation Treaty of 1913. I may say, however, that I do not concur in that view, but, consider, as already stated, that if the question is justiciable recourse • Ibid., vol. II, pp. 867 and 869.