The question of the form to be given to reservation clauses has long perplexed the advocates of arbitration treaties. The making of the new Franco-American treaty, action taken at the Sixth Pan American Conference looking to a conference on an American arbitration convention, and more recent discussion of plans for the prevention of war have re-emphasized the problem which has commanded chief attention during four decades of sporadic effort to establish obligatory arbitration on a treaty basis. Important extensions of the principle of obligatory reference have been effected in certain bipartite arrangements since the conclusion of the World War, largely through revision of old forms by which arbitral jurisdiction was limited. Built upon past experience, these extensions are the result of efforts to shape reservation clauses so as to modify them in the interest of state security, without at the same time nullifying, the arbitral engagements. The theory of reservation clauses has found application in a variety of forms. An examination of these forms in some representative modern agreements reveals the manner in which phrases now used have evolved and especially the development occurring since 1919.

During its session of October 31–December 2, 1927, the Hungarian–Czecho–Slovak Mixed Arbitral Tribunal established under the Treaty of Trainon rendered several decisions condemning the Hungarian State to pay approximately five million Czech crowns indemnity on claims filed by Czechoslovak nationals in conformity with Article 232 of the Trianon Treaty. In accordance with the provisions of the Peace Treaty, the Hungarian Government accepted without question these decisions of the Mixed Arbitral Tribunal.

Numerous interpretative notes were exchanged by the Powers prior to signature of the General Pact for the Renunciation of War on August 27, 1928. Secretary Kellogg was reported to have said on August 8 that these interpretations “are in no way a part of the pact and can not be considered reservations. The interpretations will not be deposited with the text of the treaty.” It has, however, been asserted that “the interpretations and declarations, made in the diplomatic correspondence before the signature of the treaty, and either agreed to or not dissented from, are just as binding and just as much within the meaning of the treaty as if they were written into the treaty text.” This obviously denies any importance to the distinction between interpretative notes and reservations implied in Secretary Kellogg’s statement.

The sinking on the high seas of the Canadian registered schooner I’m Alone as a suspected rum runner resisting boarding for enquiry (visit and search) by the United States Coast Guard patrol boat Dexter after a two days chase from a point a short distance off the coast of Louisiana, has given rise to considerable discussion in the press of the United States and Great Britain, and suggests several interesting questions of international law and treaty construction.