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ment would not resemble, either in form or in effect, those legal limitations which rest upon courts as parts of a system of government based on legally limited powers.
The existing treaties provide that they shall expire in five years from the date of their ratification. This fact, coupled with the fact that they apply only to a small class of cases and reserve to each disputant nation the right to withdraw cases from arbitration, makes these treaties of little consequence as providing an immediate substitute for war. Whenever there is any danger to one of the contracting nations from a proposed arbitration, the case is withdrawn from arbitration by that party as one affecting its "vital interests, independence or honor."
New treaties have recently been signed with Great Britain and France for the purpose of extending the practice of arbitration to all "justiciable” cases and making withdrawal of “justiciable” cases practically impossible. The question whether these treaties shall be ratified is one of great importance. We have no longer to consider treaties which apply only to a small class of cases, which reserve to each of the disputant nations an almost discretionary right of withdrawing cases from arbitration, and which are to be in force for a short period. If the pending treaties are ratified, and if they are constitutional, arbitration of most of the disputes between the contracting nations will become a permanent institution, and tremendous interests will be involved.
The pending treaties provide, among other things, as follows: (Article I.)
“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 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 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."
These treaties, it will be noticed, are the same as the existing treaties, in the fact that they do not recognize any legal limitations as binding on the arbitral tribunal. A special agreement is to be made defining the scope of the powers of the arbitrators, but neither in this provision, nor in the Convention of 18th October, 1907, is there any legal limitation recognized. Article 37 of this Convention is the same as Article 15 of the Convention of 1899, and declares that international arbitration is to proceed “on the basis of respect for law." “Justiciable" cases are to be submitted to arbitration and justiciable cases are defined as those “susceptible of decision by the application of the principles of law or equity”; but there is no requirement that the arbitrators shall decide these justiciable cases according to the principles of law or equity, and no legal limitation of any kind is recognized as binding upon them.
The provision limiting the withdrawal of cases from arbitration on the ground that they are not "justiciable” is as follows: (Articles II and III.)
“The high contracting parties further agree to institute as occasion arises, and as hereinafter provided, a Joint High Commission of Inquiry, to which, upon the request of either party, shall be referred for impartial and conscientious investigation any controversy between the parties within the scope of Article I, before such controversy has been submitted to arbitration, and also any other controversy hereafter arising between them, even if they are not agreed that it falls within the scope of Article I.
“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."
This last paragraph has been held by the majority of the Senate Committee on Foreign Relations to have the legal effect to obligate (or attempt to obligate) this nation to arbitrate any dispute with Great Britain or France which the Joint High Commission shall hold to be arbitrable (justiciable) either by a unanimous vote or by the vote of a majority which includes all but one member. The majority of the Senate Committee, in their report of August 15, 1911, therefore recommended the omission of this paragraph as attempting to impair the constitutional power of the Senate to ratify treaties, by delegating to a tribunal the right to decide the
question of arbitrability of international disputes. After quoting the last paragraph above quoted, it was said:
“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.. .
“In approving Article I of the treaty the Committee assents to the arbitration of all questions coming within the rule there prescribed. The terms in which the rule is stated are, however, quite vague and indefinite, and they are altogether new in international proceedings. It is possible that others may take an entirely different view from that entertained by the Committee or by the negotiators of the treaty as to what was meant by justiciable or as to what was meant by the principles of law or equity when applied to international affairs, and in the absence of any established rules of international law for the construction of such provisions and of any precedents, others might put upon these provisions a construction entirely different from that which the treaty-making power now intends. Under these circumstances to vest in an outside Commission the power to say finally what the treaty means by its very general and indefinite language is to vest in that Commission the power to make for us an entirely different treaty from that which we supposed ourselves to be making."
The effect of the treaties, is, therefore, in the opinion of the majority of the Senate Committee, to attempt to establish a system of joint judiciary for the three nations, and to delegate to the joint judiciary the power to determine the limits of its own jurisdiction.
On November 8, 1911, Secretary of State Knox delivered an address on “The Pending Arbitration Treaties” at Cincinnati, before the American Society for Judicial Settlement of International Disputes, in which he placed a different meaning on the paragraph in question. In that address, the Secretary of State quoted the following provisions from the pending treaties:
(From the Treaty with Great Britain.) “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."
(From the Treaty with France.) “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, and on the part of France subject to the procedure required by the constitutional laws of France."
The Secretary of State in his address said:
Although in the pending treaties the Executive branches of the Governments concerned agree to be bound by the decision of the Commission as to the arbitrability of a question upon which the Executive branches do not agree, this decision is subject to the approval of the self-governing Colonies of Great Britain, if the question affects them, and to the approval of the Senate of the United States, and in