so, but if it is so it is only a question of expense, a bagatelle in comparison with the unavoidable cost of maintaining our possession. Against all these objections, and, as I believe, against any which can be urged to neutralization, the exemption of the islands from war, relieving the United States of the perpetual burden of an armament for their defense is, by itself, far more than a compensating advantage. In discussing the connection of the United States with the Philippine Islands, Lord Curzon, in a recent address, made an interesting reference to the state of American opinion. He said that if a popular vote could be taken in this country upon that connection" a large and possibly an overwhelming majority would be against it." But while the British statesman recognizes the growing imperialistic burden, he dreads to lay it down and can not bring himself to contemplate the possibility of the desertion of the United States from the policy of expansion. So Lord Curzon goes on to predict that, however the American people might deplore it, "no President and no Congress will take steps to relieve the situation." Lord Curzon has not been well informed as to the authoritative declarations of purpose made in the United States concerning the archipelago. This is not the place to advocate any purely political measure. The rehearsal of the conditions in the Philippine Islands and some comment thereupon is not inappropriate, however, to the discussion of neutralization. A great nation, having obtained sovereignty over an alien race, has distinctly declared through its executive officials its purpose to prepare that race for self-government and entire independence. When that preparation is accomplished, neutralization of the territory of the people to be enfranchised, as a gift from the abdicating sovereign, would seem to be only a proper complement to the grant of self-government and independence, and would be necessary indeed to make it effective. Whatever notion may be entertained concerning the proper course to be pursued in regard to the territory, the members of the society represented by this Journal, as such, would be profoundly interested in a disposition of the Philippine Islands, involving a novel and impressive appeal to the principles of international law. ERVING WINSLOW. BOARD OF EDITORS OF THE AMERICAN JOURNAL OF INTERNATIONAL LAW CHARLES NOBLE GREGORY, State University of Iowa. ROBERT LANSING, Watertown, N. Y. JOHN BASSETT MOORE, Columbia University. DAVID J. HILL, The Hague, European Editor. Managing Editor, JAMES BROWN SCOTT, George Washington University. EDITORIAL COMMENT THE AMERICAN THEORY OF INTERNATIONAL ARBITRATION The United States has been and is a partisan - we might almost say a violent partisan- of international arbitration. In times past it has submitted individual cases to arbitration and has expressed a willingness, indeed a profound desire, to bind itself to submit all cases susceptible of judicial treatment, and of a nature to be submitted, to international arbitration. Various general treaties of arbitration were negotiated in 1904 and were ratified by the Senate of the United States, with an amendment, however, which required for the establishment of the compromis the conclusion of a treaty. This would necessitate, therefore, the negotiation of an individual treaty in order to submit a question to arbitration which the contracting parties had already bound themselves to submit. There would be thus involved the delay incident to the conclusion of the treaty, and the exchange of ratifications would necessarily prolong the delay. Under these circumstances it was deemed inadvisable to submit the treaties as amended to the various powers for their ratification. It is doubtful whether the powers would have been willing to ratify the amended treaty which carried with it the obligation to conclude a treaty to carry it into effect when the very purpose of the original treaty was to bind the respective countries to submit questions to arbitration without further recourse to the treaty-making power. The theory of the European governments is that the general treaty obligates the contracting parties to submit the questions specified in the treaty to arbitration and that the formulation of the compromis, however important it may be, is a question of procedure. The duty created by the general treaty thus obligates the power to submit the individual question to arbitration and the duty created by this treaty becomes a mere question of procedure which the contracting parties may arrange diplomatically without further resort to the treaty-making power, for the general treaty clothes the national organ with the necessary powers to give effect to the international agreement embodied in the general treaty. In the United States, however, the President and the Senate constitute the treaty-making power and the cooperation of both these is necessary to bind the United States internationally. The difficulty with the United States is, therefore, a constitutional difficulty, and a treaty to be operative and binding upon the United States must permit the United States to formulate the agreement according to our laws. The difficulty, therefore, as far as we are concerned, is internal, and it would seem that foreign powers have no more right to object to the particular manner in which the compromis is established, provided only it be established, than the United States would have to object to the formulation of the compromis in a particular manner by a foreign power. The duty to formulate the compromis is, by virtue of the treaty, international; the means by which it is established are internal, and international law stops at the frontier. It would follow from this statement that if the establishment of the compromis involved the treatymaking power of the United States we should not, in order to solve our internal difficulties, require a foreign power to resort to the treatymaking power if that foreign power is competent to conclude the compromis by simple administrative action. The Senate amendment of 1904 providing that the compromis be a special treaty seems, therefore, objectionable; for it compels a foreign power to negotiate a treaty when by the internal organization of the foreign power in question a formal treaty is unnecessary. Therefore, Secretary Root is to be congratulated for devising a simple expedient by which the constitutional difficulties of the United States will be satisfied without requiring a foreign power to negotiate the special treaty for the submission of the individual case to arbitration. An objection frequently made to the cooperation of the Senate in the establishment of the compromis necessary for the submission of the case is that a foreign power is bound by its general treaty to negotiate the compromis, whereas the United States is not bound; for the agreement upon the terms of the compromis binds the foreign power, whereas the United States is not bound until the Senate has ratified the special agreement. If this objection were well founded it would indeed be serious, but as the compromis is established by diplomatic negotiation it is merely an offer until it is accepted and may be withdrawn at any time before acceptance. If Germany, in accordance with the provisions of a general arbitration treaty, formulates and presents to the United States a compromis, this is, in the language of private law, an offer, and if the ratification of the Senate is necessary it does not become binding on Germany until the Senate has ratified it. A treaty may be negotiated between Germany and the United States, and may be signed by Germany, but it would be absurd to suppose that Germany is bound by the treaty unless and until it is ratified by the treaty-making power of the United States. Neither party is bound unless both are. Regarded in this light, the proposed compromis is not binding upon Germany until the treaty-making power of the United States has signed and ratified it, and until this has happened Germany is at liberty to withdraw its offer. It may be that it is easier for Germany to formulate the compromis, but the ease or difficulty is not the point at issue. The question is that neither party is or can be, in the nature of things, bound until the other is. It may be that the cooperation of the Senate involves delay, but this naturally exists where the agent is forced to consult the principal. If the compromis, therefore, be looked upon as a simple case of offer and acceptance, no legal difficulty arises, although delay may be caused by the necessity of consulting a branch of the Government other than that which negotiated the agreement. The convention between the United States and France, signed on the 10th day of February, approved by the Senate on February 19, and ratified by the President on the 27th of February, 1908, may be considered as a model treaty, and it is hoped that it will be the first of a long and increasing series. Turning to the discussion of the various articles of this convention, it will be seen that the Contracting States have adopted the general formula of international arbitration, in which questions involving vital interests, independence, or the honor of the two Contracting States, as well as questions affecting the interests of third parties, are excluded from the scope of the treaty. It may be that nations will one day agree to arbitrate questions concerning their vital interests, independence, or honor, but at present they are either unwilling or unable to do so. In the meantime, there is no reason why they should not arbitrate differences of a legal nature or those relating to the interpretation of treaties between the contracting parties which have not been settled by diplomacy. Article 1, which is fully abreast of the enlightened public sentiment of the present day, is a follows: 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, should 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 honor of the two Contracting States, and do not concern the interests of third Parties. Article 2 consists of two sentences, the first of which provides that the compromis that is to say, the special agreement shall be established before an appeal is made to the Permanent Court of Arbitration. The exact wording of this is 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, the scope of the powers of the Arbitrators, and the periods to be fixed for the formation of the Arbitral Tribunal and the several stages of the procedure. The second sentence of the article in question provides how the compromis shall be made. For example: It is understood that on the part of the United States such special agreements will be made by the President of the United States, by and with the advice and consent of the Senate, and on the part of France they will be subject to the procedure required by the constitutional laws of France. An analysis of this simple clause shows that the compromis is to be made by the President of the United States by and with the advice and consent of the Senate, but does not state, as in the treaties of 1904, that the special agreement is to be a special treaty. The President negotiates the compromis and submits it to the Senate for its advice and consent. The approval of the Senate binds the United States, and the agreement |