GENERAL ARBITRATION TREATIES WITH GENERAL ARBITRATION TREATIES. REPORT. The Committee on Foreign Relations has reported to the Senate, with certain amendments, two treaties-one with Great Britain and one with France for the general arbitration of differences which may arise between those countries and the United States, and have recommended that the treaties, thus amended, be ratified by the Senate. In accordance with the instructions of the Senate the committee now submits its report explaining the provisions of the treaties and the purpose and necessity of the amendments proposed. In order to understand thoroughly the nature of these treaties, it is necessary to review briefly what has already been accomplished in the same direction and to make clear the character of the existing treaties on this subject which are to be superseded and to point out the differences between the latter and those now before the Senate. In 1905 Mr. Hay, then Secretary of State, negotiated with Great Britain and certain other powers general arbitration treaties, which were submitted to the Senate by President Roosevelt for its advice and consent. These treaties provided for the submission to arbitration of practically all questions which did not affect the "vital interests, the independence, or the honor of the two contracting states and which did not concern the interests of third parties." Under these treaties the special agreement, which must be entered into in each particular case for the purpose of defining the questions and the powers of the arbitrators in that case, was to be made by the Executive without reference to the Senate. By a vote of more than 5 to 1 the Senate amended these treaties so as to secure the submission of all such special agreements to the Senate for its advice and consent. The treaties thus amended were not presented by the administration to the other contracting powers and never became operative. In 1908 Mr. Root, then Secretary of State, negotiated similar treaties with various powers in which the right of the Senate to advise and consent to all special agreements made under these treaties was explicitly provided for. Approved by President Roosevelt and by him submitted to the Senate, these treaties were ratified by the Senate without opposition and are still the law of the land. The two treaties now submitted remove the exceptions made in their predecessors as to questions affecting national honor, vital interests, independence, or the interests of third parties, and substitute therefor in Article I a statement of the scope of arbitration which is designed by its terms to exclude all questions not properly arbitrable. Article I is as follows: All differences hereafter arising between the High Contracting Parties, which it has not been possible to adjust by diplomacy, relating to international matters in which the High Contracting Parties are concerned by virtue of a 3 claim of right made by one against the other under treaty or otherwise, and which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity, shall be submitted to the Permanent Court of Arbitration established at The Hague by the Convention of October 18, 1907, or to some other arbitral tribunal as may be decided in each case by special agreement, which special agreement shall provide for the organization of such tribunal if necessary, define the scope of the powers of the arbitrators, the question or questions at issue, and settle the terms of reference and the procedure thereunder. The provisions of Articles 37 to 90, inclusive, of the Convention for the Pacific Settlement of International Disputes concluded at the Second Peace Conference at The Hague on the 18th October, 1907, so far as applicable, and unless they are inconsistent with or modified by the provisions of the special agreement to be concluded in each case, and excepting Articles 53 and 54 of such Convention, shall govern the arbitration proceedings to be taken under this Treaty. The special agreement in each case shall be made on the part of the United States by the President of the United States, by and with the advice and consent of the Senate thereof, His Majesty's Government reserving the right before concluding a special agreement in any matter affecting the interests of a self-governing dominion of the British Empire to obtain the concurrence therein of the government of that dominion. Such agreements shall be binding when confirmed by the two Governments by an exchange of notes. It will be observed that by the terms of this article every difference arising between the two nations is to be submitted to arbitration if such differences "are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity," and it follows necessarily that all differences which are not justiciable in their nature by reason of not being susceptible of decision by the application of the principles of law or equity are excluded from arbitration under the terms of this article. It will also be observed that all special agreements made under this article must be submitted to the Senate for its advice and consent. To this article the committee recommends a slight verbal amendment which only serves to make clearer the meaning of the article and which need not detain us here. If, following the example of the treaties of 1908, these treaties stopped at this point with the article defining the scope of the subjects to be submitted to arbitration, the committee would have found no difficulty in recommending to the Senate its immediate ratification. The definition of the questions to be submitted to arbitration in these new treaties is, it is true, very large and general and somewhat indeterminate. It is stated that these questions are to be justiciable by reason of being susceptible of decision by the application of the principles of law or equity. In England and the United States, and wherever the principles of the common law obtain, the words "law or equity" have an exact and technical significance, but that legal system exists nowhere else and does not exist in France, with which country one of these treaties is made. We are obliged, therefore, to construe the word "equity" in its broad and universal acceptance as that which is "equally right or just to all concerned; as the application of the dictates of good conscience to the settlement of controversies." It will be seen, therefore, that there is little or no limit to the questions which might be brought within this article, provided the two contracting parties consider them justiciable. Under Article I, however, taken by itself, no question could be dealt with unless the treaty-making powers of both countries were NOV 2 4 1931 agreed that it was justiciable within the meaning of the article. The most vital point, therefore, to be decided would be whether the question was justiciable according to the principles of law and equity. Everyone agrees that there are certain questions which no nation, if it expects to retain its existence as a nation, will ever submit to the decision of anyone else, and by reserving the power to pass upon all special agreements each party to the contract reserves at the same time the power to rejcet as not justiciable any of these questions which it is admitted no nation could submit to an outside judgment without abandoning its sovereignty and independence. These treaties, however, do not stop with the article which defines and enlarges the scope of arbitration. In Articles II and III provision is made for the establishment, if either party desires it, of a joint commission of inquiry. Such a commission is to be preliminary to arbitration and is to examine into and report upon the subject of the controversy between the two contracting parties. These articles. follow in the main the provisions of The Hague convention of 1907 now in force for the establishment of such commissions. The committee ventures to think that some of the changes here made from The Hague provisions are not in the direction of an advance, but of a retreat, because they revive the idea of confining membership in the commission, if insisted upon by either party, to nationals instead of to wholly disinterested outsiders, which is the conception of The Hague convention. But the important part of these two articles is contained in the last clause of Article III, a point at which these two treaties depart widely from The Hague provisions. The clause in question is as follows: It is further agreed, however, that in cases in which the Parties disagree as to whether or not a difference is subject to arbitration under Article I of this Treaty, that question shall be submitted to the Joint High Commission of Inquiry; and if all or all but one of the members of the Commission agree and report that such difference is within the scope of Article I, it shall be referred to arbitration in accordance with the provisions of this Treaty. It will be seen by examination of the clause just quoted that if the joint commission, which may consist of one or more persons, which may be composed wholly of foreigners or wholly of nationals, decides that the question before them is justiciable under Article I it must then go to arbitration whether the treaty-making power of either country believes it to be justiciable or not. A special agreement, coming to the Senate after the joint commission had decided the question involved to be justiciable, could not be amended or rejected by the Senate on the ground that in their opinion the question was not justiciable and did not come within the scope of Article I. By this clause the constitutional powers of the Senate are taken away pro tanto and are transferred to a commission, upon the composition of which the Senate has no control whatever. It is said that the powers of the President under the Constitution are given up by the third clause of Article III just as much as those of the Senate. If this be true it only makes the case more serious, but the President, under the provisions of Articles II and III, although he would be bound by the decision of the commission, can nevertheless control the formation of that body. To arrange the membership of the joint commission, however, so as to defeat an adverse decision in advance would not be consonant with the spirit of the treaty, but none the less |