N.B.-Essential points in the two texts are distinguished by

italics.

Article XIX. of the Peace Convention of July 29, 1899, is as follows:-" Independently of general or special Treaties, which may already impose the obligation upon the Signatory Powers to have recourse to Arbitration, these Powers reserve to themselves the liberty to conclude either before the ratification of the present Act, or afterwards, new Agreements, general or particular, with the object of extending compulsory arbitration to all cases which they judge capable of being submitted to it."

ANGLO-AMERICAN TREATY OF

DEC. 12, 1904.

Article I.

Differences which may arise of a legal nature, or relating to the interpretation of Treaties existing between the two Contracting Parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 29th July 1899, provided, nevertheless, that they do not affect the vital interests, the independence, or the

ANGLO-FRENCH TREATY OF
Ост. 14, 1903.1

The Government of the French Republic and the Government of H.B. Majesty, signatories of the Convention for the Pacific Settlement of International Disputes, concluded at The Hague, July 29th, 1899,

Considering that by Article XIX. of this Convention the High Contracting Parties reserved to themselves the conclusion of Agreements in view of recourse to arbitration in all cases which they judged capable of submission to it,

Have authorised the undersigned to agree as follows:

Article I.

Differences of a judicial order, or relating to the interpretation of existing Treaties between the two Contracting Parties, which may arise, and which it may not have been possible to settle by diplomacy, shall be submitted to the Permanent Court of Arbitration, established by the Convention of July 29th, 1899, at The Hague, on condition, however, that neither the vital interests, nor the independence or honour

1 The French text of Anglo-Frer.ch Treaty is as follows:

Le Gouvernement de la République française et le Gouvernement de Sa Majesté britannique, signataires de la Convention pour le règlement pacifique des conflits internationaux, conclue à La Haye, le 29 juillet 1899;

Considérant que, par l'article 19 de cette Convention, les hautes parties contractantes se sont réservé de conclure des accords en vue du recours à l'arbitrage dans tous les cas qu'elles jugeront possible de lui soumettre.

Ont autorisé les soussignés à arrêter les dispositions suivantes :

Art. 1.-Les différends d'ordre juridique ou relatifs à l'interprétation des traités existant entre les deux parties contractantes qui viendraient à se produire entre elles et qui n'auraient pu être réglés par la voie diplomatique, seront soumis à la Cour permanente d'arbitrage établie par la convention du 29 juillet 1899 à La Haye, à la condition, toutefois, qu'ils ne mettent en cause ni les intérêts vitaux, ni l'indépendance ou l'honneur des deux Etats contractants et qu'ils ne touchent pas aux intérêts de tierces puissances.

Art. 2.-Dans chaque cas particulier, les hautes parties contractantes, avant de s'adresser à la Cour permanente, d'arbitrage, signeront un compromis spécial déterminant nettement l'objet du litige, l'étendue des pouvoirs des arbitres et les détails à observer en ce qui concerne la constitution du tribunal arbitral et la procédure.

Art. 3.-Le présent arrangement est conclu pour une durée de cinq années, à partir du jour de la signature.

The text of the Anglo-American Treaty signed by the late Hon. John Hay and by Sir Mortimer Durand on December 12, 1904, was submitted shortly after by President Roosevelt to the Senate of the United States for ratification. The Senate inserted in Article II. the word "treaty" in the place of the word "agreement," which under the United States Constitution made senatorial sanction of the compromis requisite. With this alteration they returned it to the President, who considered the alteration left him no alternative but to consider it and the other similar treaties which had been negotiated as negatived.

The questions in connection with these Treaties to which attention should be given are

1. Whether Article II. in both treaties is necessary or useful. 2. Whether Article III. in the Anglo-American text is not

beyond the scope of an International Treaty; whether the Senate's objection does not introduce a constitutional question of a purely domestic character into an arrangement with other Powers.

I.

The principle of Article II. is borrowed from Article XXXI. of The Hague Convention. It figures in the Convention under the heading of "Arbitral Procedure," and it was, in fact, borrowed from the ordinary procedure in arbitration practice. Article XXXI. is as follows:

"The Powers which have recourse to arbitration sign a special act [compromis] in which are clearly set out the matter in dispute as well as the scope of the powers of the arbitrators."

1 See p. 26. The English equivalent of the word Compromis, in private law, is " mission." In Diplomacy it would be "protocol of submission."

M. Delcassé, who drew up the form which was with slight modifications ultimately adopted, no doubt inserted the clause in the supplementary convention on account of the insufficiency of Article XXXI.1; but all the supplementary convention was intended to do was, as is therein indicated, to make a reference to arbitration obligatory in certain cases.

All the signatories of the Peace Convention have already sanctioned and agreed to the procedure of The Hague Court, and, subject to the redrafting of Article XXXI., it is mere redundance to repeat in a supplementary convention the first step in such procedure. The necessity of laying the precise points in question before the arbitrators, as before judges in our domestic Courts, is too obvious to need to be argued. It is required in every system of judicial procedure, and, in the nature of things, it is the first detail to be settled, after the principle of arbitration itself has been agreed to by the parties. One might go further, and say that this precise determination of the issue belongs to all kinds of procedure. Thus it belongs to what in diplomacy are called the protocols of a question. Foreign offices are constantly reducing matters of difference to writing, and whittling them down to their simplest expression in ways binding on their respective countries, without such protocols being considered as Treaties or Conventions. In short, if the second Article had been omitted from the Anglo-French Treaty, it would have made no change, seeing that diplomatic necessity and usage, in the very nature of things, would have led the Governments before they resorted to arbitration to define the precise issue to be adjudicated upon, and any other details of procedure which have necessarily to be determined in limine litis.

The introduction of the word "Treaty" instead of "Agreement," moreover, would probably have made Parliamentary ratification necessary by practically all States except Great Britain. Why, however, should other nations be compelled, if they do not wish to do so, to submit each individual act of reference for Parliamentary ratification? This shows how unquestionably the subject of Parliamentary ratification is one affecting the domestic relations of each contracting country exclusively.

1 See p. 26, the form in which I have redrafted Article XXXI. in order to incorporate the different alterations which have been shown by experience to be necessary.

II.

The mode of ratification does not belong to the contents of an International Treaty. It is essentially a matter for internal legislation. Article III., in stipulating that the treaty shall be ratified by the President of the United States by and with the advice and consent of the Senate thereof, imports into it an element foreign to the idea of a Sovereign State. A State in its outward relations is represented by its Executive alone. It is undesirable to give foreign States the remotest justification for inquiring into the legitimacy of the Executive entrusted by a nation with its external action.

The difficulty appears to be that the Senate is determined that no reference whatsoever to arbitration shall be made without some kind of sanction by it. The point is not new.

In the original text of the unratified Anglo-American Treaty of Arbitration of 1897, as signed by the Plenipotentiaries, there was no such clause as Article II. The Senate, when the Treaty was submitted for their ratification, added a clause almost identically in the sense of the modification they have made in the new Treaties. The proviso they added was

"And any agreement to submit, together with its formulations, shall in every case, before it becomes final, be communicated by the President of the United States to the Senate with his approval, and be concurred in by twothirds of the Senators present."

It is seen that the United States Senate have not departed from the attitude they assumed in 1897, and the question will be how to meet their requirements without modifying the procedure of The Hague Court under the existing Convention.

The matter belongs purely to the domain of domestic or constitutional law. The American Senate has a position in the American polity quite different from that of any of the Upper Houses in Europe. Its executive functions permit it to exercise a check on the administrative authority in all external matters. Any provisions for the restriction of the Presidentia! powers, however, are beyond the scope of an International Treaty.1

11 humbly submit that it seems to me, as an outsider, possible to embody the senatoria! objections in the ratifying enactment, both as regards the Presidential powers and the appointment of the American arbitrators.