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that may be awarded to a foreign country as a result of an arbitration of claims against the United States. (See, further, post.)

(c) apart from the foregoing conclusions, Executive Branch criteria for deciding whether particular agreements require Senate advice and consent as treaties or may be concluded as executive agreements do not compel the conclusion that the agreement in this case must be submitted in treaty form.

(a) The Treaty of Amity, Economic Relations and Consular Rights

Article XXI(2) of the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran (approved by the Senate, July 11, 1956; ratified by the United States, September 14, 1956; entered into force, June 16, 1957; TIAS 3853, 8 U.S.T. 899) reads as follows:

Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

Arbitration, of course, is a pacific means of settlement and is encompassed by Article XXI(2). Further, Article III(3) of the Treaty provides as follows:

The private settlement of disputes of a civil nature, involving nationals and companies of either High Contracting Party, shall not be discouraged within the territories of the other High Contracting Party; and, in cases of such settlement by arbitration, neither the alienage of the arbitrators nor the foreign situs of the arbitration proceedings shall of themselves be a bar to the enforceability of awards duly resulting therefrom.

At least to the extent of settling private disputes, the treaty explicitly recognizes that arbitration would be an acceptable approach.

While there is no precise reference to arbitration as one of the "other pacific means" of settlement in the 1955 Treaty, the context and history of the clause indicate that arbitration was intended as one possible mode. None of the pre-World War II treaties of friendship, commerce and navigation provide for third-party dispute settlement mechanisms. But in late 1945 the United States became a party to the United Nations Charter, which provides in Article 33(1) that:

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

The first postwar FCN treaty, concluded in 1946, was with the Republic of China [see, post]. Article XXVIII of that treaty was not only the first to provide for a third-party dispute settlement mechanism in an FCN treaty, but it set the framework for almost

all FCN treaties to follow. In the style of the UN Charter, Article XXVIII provides:

Any dispute between the Governments of the two High Contracting Parties as to the interpretation or the application of this Treaty, which the High Contracting Parties cannot satisfactorily adjust by diplomacy, shall be submitted to the International Court of Justice unless the High Contracting Parties shall agree to settlement by some other pacific means.

Subsequent FCN treaties, with rare exceptions, contain almost identical clauses. In no case, however, does it appear that the phrase "other peaceful means" or "other pacific means" has been analyzed in the President's messages to the Senate transmitting the treaties, in the Secretary of State's reports thereon, in the reports of the Senate Foreign Relations Committee, or in the SFRC hearings on these treaties. Therefore we have no precise reference to arbitration as coming within the ambit of the thirdparty dispute settlement clauses in FCN treaties.

The FCN treaty with the Federal Republic of Germany (TIAS 3593; 7 U.S.T. 1839; entered into force, July 14, 1956) contains the following provision in Article XXVII:

Any dispute between the Parties as to the interpretation or the application of the present Treaty which the Parties do not satisfactorily adjust by diplomacy or some other agreed means shall be submitted to arbitration or, upon agreement of the Parties, to the International Court of Justice.

Here the priority given to the International Court of Justice is reversed in favor of arbitration, and resort to the Court follows only upon agreement of the Parties. At that time, of course, the Federal Republic was not a member of the United Nations nor a party to the Statute of the International Court. In its report on the treaty, the Senate Foreign Relations Committee commented as follows:

The committee also examined the question of whether article XXVII (2) ... might seem to require that disputes be submitted to arbitration and be referred to the International Court only upon the specific agreement of the parties. In view of the fact that Germany is not yet a member of the United Nations or a party to the Statute of the International Court of Justice, it did not seem appropriate to insist on giving priority at this time to the jurisdiction of the Court. It is understood, however, that at such time as Germany becomes a member of the United Nations or adheres to the Statute of the Court, the normal practice will be followed and differences not satisfactorily adjusted by diplomacy will be submitted to the International Court of Justice unless the parties agree to settlement by some other means. (84th Cong., 1st Sess., Exec. Rept. No. 10.)

The only two postwar FCN treaties that do not include references to the International Court of Justice are the treaties with Oman and Thailand. The treaty with Oman (TIAS 4530; 11 U.S.T. 1835; entered into force, June 11, 1960) merely provides for "consulta

tions" since Oman refused any third-party dispute settlement mechanism. The 1966 treaty with Thailand (TIAS 6540; 19 U.S.T. 5843; entered into force, June 8, 1968) provides that any dispute not adjusted by diplomacy or other peaceful means shall be submitted at the request of either party to a panel of arbitrators. Thailand was not at that time a member of the United Nations.

During the negotiations of the 1966 Treaty with Thailand, the United States recommended the standard dispute settlement clause, including reference of disputes to the International Court of Justice unless the parties agreed to settlement by some other pacific means. In a cable to U.S. negotiators in Bangkok, the Department of State set forth the policy underlying its preference for third party settlement of disputes, including basic security of U.S. nationals and their property, considerations of good relations and orderly procedures, and support of the United Nations and its organs (the International Court). The cable states that in discussing the subject with Thai officials, U.S. representatives were authorized to utilize several points, among them the following:

The provision does not establish an absolute commitment to submit disputes to the ICJ. The absolute commitment is to submit all treaty disputes to peaceful means of settlement. The provision emphasizes settlement through diplomatic channels. It contemplates also, however, possible recourse to such methods as arbitration, conciliation, mediation and good offices. In practice, therefore, referral to the ICJ may be largely a matter of final resort.

(Dept. of State Instruction, No. W-137, March 21, 1962, p. 2.) During the negotiation of the 1955 Treaty with Iran, the Government of Iran objected to settlement by the International Court of disputes related to the "application" of the Treaty. U.S. negotiators were authorized to consider "some procedure for effective arbitration as [a] substitute for [the] Court clause." (Dept. of State cable to Tehran, No. 954, Nov. 12, 1954, L/T files.) Iran's objection was subsequently withdrawn.

The common theme running throughout the foregoing history is the postwar agreement on third-party dispute settlement mechanisms in almost all FCN treaties, with the priority among the various modes of settlement given to the International Court of Justice. In those cases in which reference to the Court was not deemed appropriate (Federal Republic of Germany, Thailand) or objected to for a time (Iran), but where both sides agreed to some form of third-party dispute settlement mechanism, arbitration was the alternative. Only where no third-party mechanism was agreed to (Oman) was there no reference to "other peaceful means" or "other pacific means" of settlement. In that case only "consultations" were called for. In sum, third-party settlement meant either the International Court, or arbitration, or some other means. In my judgment, there is no doubt that Article XXI(2) of the Treaty with Iran authorizes arbitration of disputes concerning the interpretation or application of the Treaty.

Further, neither Article XXI(2) nor Article III(3) of the Treaty with Iran distinguishes between claims brought by or against the

United States. Rather these provisions refer to "any dispute" concerning the interpretation or application of the Treaty, or “disputes" of a civil nature. The same is true with respect to the dispute settlement clauses of all other FCN treaties.

The question may be raised whether despite Senate approval of a general clause in the 1955 Treaty authorizing arbitration, any particular arbitration agreement in implementation of the general clause need also be submitted to the Senate in treaty form or to the Congress for approval since claims against the United States are involved. In my judgment, the later implementing agreement need not be submitted for Senate or Congressional approval.

While there are no judicial holdings or dicta on the point, the few scholars who have addressed this issue appear agreed that executive agreements required to give effect to general arbitration treaties or provisions may appropriately be concluded by the President acting alone. See Wallace McClure, International Executive Agreements (New York: Columbia Univ. Press, 1941), p. 15; Myres S. McDougal and Asher Lans, "Treaties and Congressional-Executive Or Presidential Agreements: Interchangeable Instruments of National Policy," The Yale Law Journal, Vol. 54, No. 2, March 1945, p. 269; editorial comment, The American Journal of International Law, July 1912, pp. 718-719.

Further, the Senate could have conditioned its approval of the 1955 treaty on an understanding that any particular agreement with Iran to submit a dispute to the International Court, to arbitration, or to some other means of pacific settlement, be submitted to the Senate for advice and consent to ratification, but it did not do so. That kind of understanding is certainly not unknown to the Senate, although it has been resisted by Presidents.

For example, early in this century John Hay, Secretary of State, had negotiated a number of treaties for the arbitration of disputes. The treaty with Great Britain, like the others, contained a clause as follows:

In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute and the scope of the powers of the Arbitrators, and fixing the periods for the formation of the Arbitral Tribunal and the several stages of the procedure.

The Senate, acting on these treaties on February 11, 1905, adopted similar resolutions of ratification, as follows:

Resolved (Two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of an Arbitration convention between the United States and Great Britain, signed on December 12, 1904; with the following

AMENDMENT

In Article II, line 13, strike out the word [Agreement] and insert in lieu thereof the word Treaty.

President Roosevelt refused to ratify the treaties with this amendment. He wrote a note as follows: "The arbitration treaties are to be kept in the State Department, and no further steps taken in con

nection with them. The form in which they were ratified was equivalent to rejection, and will be so treated by the Executive." (McClure, op. cit., pp. 13-14.)

This approach by the Senate is also reflected in the U.S. ratification of the 1907 Hague Convention for the Pacific Settlement of International Disputes. 36 Stat. 2199; TS 536; 1 Bevans 577. The Senate gave its advice and consent to ratification on April 2, 1908 with an understanding as follows:

The United States approves this convention with the understanding that recourse to the permanent court for the settlement of differences can be had only by agreement thereto through general or special treaties of arbitration.

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(Marjorie M. Whiteman, Digest of International Law, Vol. 14, p. 250.)

Similarly, the arbitration convention of February 20, 1929 with Norway [see, post] provides in Article I that any special arbitration agreement made thereunder "shall be made on the part of the United States of America by the President of the United States of America and with the advice and consent of the Senate thereof...". (46 Stat. 2278, 2279.)

It would appear that the Senate prefers particular arbitration agreements in implementation of general arbitration treaties (both bilateral and multilateral) to be submitted to the Senate for advice and consent to ratification. But the pattern is quite different in respect of arbitration or dispute settlement clauses in treaties dealing with particular subjects. In such specific subject matter treaties the Senate is quite willing to have arbitration of disputes without any special agreement at all, with the case to be submitted to arbitration by the United States or by any other party to the dispute. Apparently the Senate believes that the subject matter of the treaty is sufficiently narrow so that any dispute settlement procedure thereunder may appropriately move forward without a second submission to the Senate. General arbitration treaties, on the other hand, might become applicable under totally unforeseen circumstances, and in such cases the Senate wishes to give its further approval before a particular arbitration proceeds.

Some recent examples of treaties authorizing arbitration without further submission to the Senate are the 1973 Treaty between the United States and Switzerland on Mutual Assistance in Criminal Matters (Article 39) (27 U.S.T. 2019; TIAS 8302); the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (Article XVIII-arbitration "by mutual consent") (27 U.S.T. 1087; TIAS 8249); the 1976 Convention on the International Maritime Satellite Organization (Article 31) (TIAS 9605).

All of the treaties of friendship, commerce, and navigation which authorize third party dispute settlement do so without further submission to the Senate.

Finally, there appears to be no doubt that the claims proposed for arbitration between Iran and the United States involve a dispute between the two countries with respect to the interpretation

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