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Towards the Rule of Law?

Published online by Cambridge University Press:  28 March 2017

Herbert W. Briggs
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Extract

On January 11, 1957, the United States rejected a request of the Government of Switzerland to submit the Interhandel controversy to arbitration or conciliation in conformity with the provisions of the United States-Swiss Treaty of Arbitration and Conciliation of February 16, 1931. The refusal to submit the controversy to arbitration was declared to be “on the ground that the matter does not involve a dispute falling within the scope of the obligation to have recourse to arbitration” and the refusal to comply with the conciliation provisions of the treaty was on the ground that they “would necessarily be unproductive.”

Type
Research Article
Information
American Journal of International Law , Volume 51 , Issue 3 , July 1957 , pp. 517 - 529
Copyright
Copyright © American Society of International Law 1957

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References

1 See 36 Dept. of State Bulletin 350–358 (1957), for texts of Swiss note of Aug. 9, 1956, and U. S. note of Jan. 11, 1957, with enclosed U. S. Memorandum. For the text of the 1931 treaty, see U. S. Treaty Series, No. 844.

2 U. S. note, loc. cit. 351.

3 U. S. Memorandum, loc. cit. 357.

4 Italics added. For full text, see T.I.A.S., No. 1598.

5 U. S. Memorandum, loc. cit. 357.

6 These facta are here summarized from the opinions of the U. S. courts in Société Internationale pour Participations Industrielles et Commerciales, S. A., v. McGranery et al., 111 F. Supp. 435 (1953) and, on appeal, [Same] v. Brownell, 225 F. 2d 532 (1955), cert, den., U. S. Supreme Court, 350 U. S. 937 (1956), and from the U. S. Memorandum of Jan. 11, 1957, loc. cit.

7 40 Stat. 411; 50 U. S. C., Appendix, § 1 et seq.

8 See citations in note 6 above. The New York Times reported on April 12, 1957, that the Court of Appeals of the District of Columbia had on April 11 affirmed a denial of injunction requested by Interhandel to restrain sale by the U. S. of 75% of the stock of General Aniline, the U. S. contention being that litigation has been terminated. On April 17, 1957, Attorney General Brownell nevertheless postponed the sale pending further litigation. Ibid., April 18, 1957, p. 41.

9 Swiss note, loc. cit. 358.

10 See 14 Dept. of State Bulletin 1121–1124 (1946). The Swiss-Allied Accord does not appear to have been published either in T.I.A.S. or U.N.T.S. For a discussion of this agreement, see article by Nat B. King in 46 A.J.I.L. 464 (1952).

11 U. S. Treaty Series, No. 844.

12 This particular treaty, like several others upon which negotiations had been delayed, was signed by Secretary of State Henry L. Stimson. See U. S. Foreign Relations, 1928, Vol. III, pp. 937–939; ibid., 1931, Vol. II, pp. 1019–1026.

13 Last paragraph only.

14 Three further exceptions are omitted here as irrelevant. The Trench text of Art. VI(a) reads as follows: “Les dispositions de l’article V ne pourront être invoquées dans tout différend dont l’objet a) relève de la compétence exclusive de l’une ou l’autre des parties contractantes.” Italics added.

15 U. S. Memorandum, loc. cit. 351, 352, 356.

16 U. S. note, loc. cit. 350.

17 Cf. U. S. Memorandum, loc. cit. 352, which refers to earlier exchanges of notes between the United States and Switzerland, although their texts are not reproduced in the Department of State Bulletin.

18 U. S. Memorandum, loc. cit. 352–353.

19 Ibid. 353–355.

20 Ibid. 355.

21 Ibid. 355, 356.

22 Ibid. 355–357.

23 Ibid. 357. Italics added.

24 Ibid. 357. Italics added.

25 On April 25, 1928, Secretary of State Kellogg wrote to the American Ambassador in Turkey: “Modification of, or addition to, the texts of the treaties of arbitration and conciliation so as to meet the susceptibilities and apprehensions that are peculiar to one or more countries would render impossible execution of this Government’s program for negotiating treaties of arbitration and conciliation which are substantially identical with all governments outside of Latin America.” U. S. Foreign Relations, 1928, Vol. III, p. 947.Google Scholar

26 Kellogg to DeLigne, March 8, 1929. U. S. Foreign Relations, 1929, Vol. II, p. 4. Italics added.

27 Ibid., 1928, Vol. II, pp. 865–867.

28 Kellogg to Grew, Oct. 9, 1928. U. S. Foreign Relations, 1928, Vol. III, pp. 949–950.

29 See U. S. Foreign Relations volumes for 1928 to 1931, passim.

30 Waldock, C. H. M., “The Plea of Domestic Jurisdiction before International Legal Tribunals,” 31 Brit. Yr. Bk. of Int. Law 96, 105–106 (1954).Google Scholar His citations are omitted here.

31 See above, p. 520, for text of Art. II. For the agreement of Secretary of State Stimson with the interpretation of the Swiss Government that “it is well understood, that for all conflicts not of a juridical character, or that would be excluded from arbitration by virtue of Article VI of the Treaty, recourse to the Commission of Conciliation would be obligatory in all cases, in conformity with Article II,” see U. S. Foreign Relations, 1931, Vol. II, p. 1026 Google Scholar, Stimson to Peter, Feb. 24, 1931.

32 U. S. Memorandum, loc. cit. 357. The United States likewise rejected a Swiss request for the maintenance of the status quo on the ground that since Interhandel’s American assets had already been vested in the United States Government, the Swiss request was “in fact a request for a change of the status quo. … Only the courts of the United States have jurisdiction to stay such a sale of property located in the United States; such jurisdiction is sovereign and exclusive.” Ibid. 358.

33 P.C.I.J., Ser. A, No. 24, p. 12 (1930), and Ser. A/B, No. 46, p. 167 (1932).

34 P.C.I.J., Ser. A/B, No. 44, p. 24 (1932). For further citations, see Art. 23, Harvard Research in International Law, Draft Convention on the Law of Treaties, 29 A.J.I.L. Supp. 1029–1044 (1935).Google Scholar

35 See Hans Morgenthau, Politics Among Nations 404 ff. (2nd ed., 1954); De Visscher, Charles, “Reflections on the Present Prospects of International Adjudication,” 50 A.J.I.L. 467–474 (1956).Google Scholar