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The Arbitration Treaties and the Senate Amendments
Published online by Cambridge University Press: 04 May 2017
Extract
Referring to the identic general arbitration treaties recently negotiated with Great Britain and France, President Taft remarks, in a recent magazine article: “They have amended the treaty in the Senate and have put in so many exceptions that really it is very doubtful whether the adoption of such a treaty will be a step forward.”
It is the purpose of the present article to consider the Senate amendments to the arbitration treaties with a view to offering some suggestions upon the question which President Taft thus raises, namely, whether or not the exchange of ratifications and putting into effect of the general arbitration treaties with Great Britain and France, as amended by the Senate, will or will not be a step forward toward the goal of peace through justice. As a foundation for an intelligent discussion of this question it seems desirable to emphasize some points with regard to the purpose and fundamental theory of the treaties as originally drawn and the success with which this theory has been embodied in the language of the treaties.
There appears to be one thing about which nearly all the friends of the treaties may be said to have agreed, that is, that the chief value of the treaties, as negotiated, was indirect and general, not immediate and definite as between the contracting parties. They were chiefly valuable, not because these particular treaties would prevent war between the signatory nations, for “war between the United States and England or the United States and France was inconceivable if not impossible.”
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- Copyright © American Society of International Law 1912
Footnotes
*
This article is based on an address delivered at the Eighteenth Lake Mohonk Conference on International Arbitration. The considerations therein set forth have been somewhat developed and notes and references have been added, but the original phraseology has been substantially retained.
References
1 The World’s Work for June, 1912, p. 174.
2 Senator Lodge’s address in the Senate, Feb. 29, 1912, S. Doc. 353, 62 Cong., 2 sess., p. 5.
3 In President Taft’s address to the Methodist Chautauqua, at Mountain Lake Park, Maryland, August 7, 1911, he said:
“Treaties with England and France are of the utmost importance, not in the actual prevention of war between those countries, because the danger of such a cataclysm as that is, thank God, most remote, but they are most important as steps toward the settlement of all international controversies between all countries by peaceable means and by arbitration. The fact that two great nations like Great Britain and the United States, or like France and the United States, should be willing to submit all controversies to a peaceful and impartial tribunal can not but work for righteousness among the nations, and for a willingness on their part to adopt the same means for the settlement of international disputes. (Addresses of President Taft on Arbitration, published by the Government Printing Office, pp. 42-43.)
See also President Taft’s address before the Christian Endeavor Convention, Young’s Pier, Atlantic City, New Jersey, July 7, 1911, ibid., p. 36; and his address at the Marion, Indiana, Branch of the National Home for Disabled Volunteer Soldiers, July 2, 1911, ibid., p. 30.
In Senator Root’s speech in the Senate, March 7,1912, he said:
“It is not so much that I think these treaties will lead to the arbitration of questions between this country and Great Britain and France, which would not otherwise be arbitrated, that I want them ratified; it is because the moral effect upon mankind of the Government of the United States taking what is believed to be a step forward as compared with the moral effect of the Government of the United States refusing what is believed to be a step forward will make for the education of mankind along the lines of civilization or the retardation of their progress along those lines.” (Cong. Record, Vol. 48, No. 73, p. 3050.)
See also Senator Lodge’s remarks to the same general effect in his speech in the Senate, S. Doc. 353, 62 Cong., 2 sees., p. 10.
4 Address of Secretary Knoxcn the Pending Arbitration Treaties, before the American Society for the Judicial Settlement of International Disputes, Cincinnati, Ohio, November 8, 1911; S. Doc. 298, 62 Cong., 2 sess., p. 4.
5 See Senator Root’s address, Cong. Record, Vol. 48, No. 73, p. 3047.
6 Pacific States Telephone and Telegraph Company v. Oregon, 223 U. S. 118 at 149.
7 The following chronological list of arbitration treaties of the United States using the expression “justice and equity” or its equivalent makes no pretense of being complete: Great Britain, Treaty of Amity, Commerce and Navigation (Jay Treaty), November 19, 1794,” Article VI; Great Britain, Convention respecting Fisheries, Boundary and the Restoration of Slaves, October 20, 1818; Great Britain, Claims Convention, February 8, 1853; Costa Rica, Claims Convention, July 2, I860; Great Britain, Treaty for Settlement of Claims with the Hudson’s Bay Company, etc., July 1,1863; Great Britain, Treaty of Washington, May 8,1871, Article XII (Claims arising during the Civil War aside from the Alabama Claims).
The following treaties or conventions use language the same or substantially the same as the Seventh Article of the Jay Treaty with Great Britain, which reads: “according to the merits of the several cases and to justice, equity and the laws of nations “: Spain, Treaty of Friendship, Boundary, etc., October 27,1795, Article XXI (Claims arising during the war between Spain and France) ; Denmark, Claims Convention, March 28,1830; Peru, Claims Convention, January 12, 1863; Mexico, Claims Convention, July 4, 1868. (See Treaties and Conventions of the United States, passim. See, also, Argument of the United States, Orinoco Steamship Case before the Hague Tribunal, page 117, note.)
Article VII of the Prize Court Convention, adopted by the Second Hague Conference, of 1907, and recently advised and consented to by the Senate of the United States, provides that in the absence of any controlling treaty provisions or generally recognized rule of international law, “the court shall give judgment in accordance with the general principles of justice and equity” (see Scott’s Hague Texts, page 289 at 293), while Article VII of the Pecuniary Claims Convention with Great Britain, signed August 18, 1910, makes it the duty of the members of the tribunal, upon assuming’their functions, to take oath to decide “in accordance with treaty rights and with the principles of international law and of equity.” (See Supplement, American Journal or International Law, Vol. 5,1911, p. 257 at 260.)
8 The report of the majority of the Senate Committee on Foreign Relations used the following language in discussing this point:
“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. * * * We are obliged, therefore, to construe the word ‘equity’ in its broad and universal acceptance as that which is ‘equally right and 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.” (S. Doc. 98, 62 Cong., 1 sess., pp. 4 and 5.)
Senator Lodge, who submitted this report, commented upon this passage as follows in his address in the Senate:
“We are equally destitute of any authoritative definition or determination or interpretation as to the significance of the words ‘law or equity’ in this international connection. The senator from Maryland said that the committee had interpreted the word ‘equity’ wrongly in arguing that the use of that word in these treaties would open the door to questions of every kind. The committee in its report and in what was there said about the words ‘law and equity’ did not intend to suggest that these words of and by themselves opened the door to an unlimited range of questions. All the committee desired to suggest was that ‘law or equity,’ like the word ‘justiciable,’ in this connection entirely lacked any authoritative definition or interpretation.” (S. Doc. 353, 62 Cong., 2 sess., pp. 11-12.)
9 See report of Robert S. Hale, Agent of the United States, Ex. Doc. 1, Pt. 1, 43 Cong., 1 sess., pp. 246-247. (Foreign Relations of the United States, 1873, Vol. III.)
10 See Moore’s International Law Digest, Vol. VI, pp. 304-307. See also Correspondence relating to Wrongs done to American Citizens by the Government of Venezuela, S. Doc. 413, 60 Cong., 1 sess., pp. 82-84.
11 “Etant donnée la liberté absolue d’appréciation que le Compromis de 1903 a conféré aux Arbitres, le Gouvernement des Etats-Unis est sans droit pour demander la nullité de la sentence, même dans l’hypothèse, á tous points de vue erronée, qu’elle serait entachée des vices qu’il lui attribue. Voici le principal raisonnement que fait par ma bouche le Gouvernement du Venezuela.” (Oral Argument of Dr. Grisanti, Venezuelan Agent, before the Hague Tribunal in the Orinoco Steamship Case. Plaidores, pp. 47-48.) And again—“L’argument capital que j’apporte pour la défense de l’absolue validité de la sentence de l’honorable Dr. Barge, est que les termes du protocole de 1903 donnent aux Arbitres la plus grande liberté pour juger * * * .” (Ibid., pages 78-79.)
12 See decision of the Hague Tribunal in the Orinoco Steamship Company Case, this Journal, Vol. V, p. 230, at p. 233. See, also, Orinoco Steamship Company Case before the Hague Tribunal, ibid., pp. 39-50.
13 It is true that in the Orinoco Steamship Case the court might have reached the same conclusion by interpreting the words “without regard to objections of a technical nature, etc.,” as modifying an irresponsible liberty otherwise conferred by the words “absolute equity,” but there is no suggestion of such a view in the opinion.
14 Cong. Record, Vol. 48, No. 73, p. 3047.
15 For a more detailed consideration of the arguments pro and con on this question of construction see “The Pending Arbitration Treaty with Great Britain” in the University of Pennsylvania Law Review for March, 1912.
16 Among the Senators who, in the course of the debate, expressed the opinion that the decision of the joint commission under this paragraph would be binding upon the Senate, were Senators Bacon (Cong. Record, Vol. 48, No. 75, p. 3241 at 3248), Smith of Georgia (Ibid., No. 76, p. 3332 at 3336 and 3337), Smith of Michigan (Ibid., No. 72, p. 2983 at 2988, etc.), who favored amending the treaty by striking out the paragraph in question; Senator Rayner (Ibid., No. 28, pp. 1027 to 1030; compare p. 3249) who nevertheless favored the adoption of the paragraph as it stood; Senator Root (Ibid., No. 73, p. 3049), who suggested in his minority report (with Senator Cullom) a declaratory amendment to the resolution of ratification (S. Doc, No. 98, 62 Cong., 1 sess., pp. 10, 27); and Senator Lodge who presented a declaratory amendment construing the paragraph in a contrary sense. Among the Senators who accepted the interpretation of the Secretary of State were Senators Burton, who made a, special minority report in this sense (S. Doc. 98, 62 Cong., 1 sess., pp. 11-15), which he supported on the floor of the Senate (Cong. Record, Vol. 48, No. 77, pp. 3385-3386), and McCumber (Ibid., No. 33, p. 1280 et seq.), who favored the treaty without amendment but were ready to accept the Lodge declaratory amendment. (Compare the position of Senator Williams, Ibid., No. 72, p. 3032, at 3038, see also p. 3249).
Senator Bacon, in the course of his address, remarked:
“I want right in that particular to call attention to a very remarkable fact, that of all the Senators who advocate these treaties in their present form, no two of them agree in the construction of that third clause, or at least, no two of them agree in the construction and also in the application of it. Perhaps I ought to make an exception in the case of the Senator from Illinois [Mr. Cullom] and the Senator from New York, [Mr. Root] because they did join in the same report and, therefore, they do agree.” (Cong. Record, p. 3248.)
16a See particularly his address at Ocean Grove, August 15, 1911; at Rochester, August 23, 1911, in Addresses of President Taft on Arbitration, published by the Government Printing Office, pp. 47-66, especially pages 51, 53, 62 and 63; and at Cincinnati, November 7, 1911, in Proceedings of the American Society for the Judicial Settlement of International Disputes, p. 12.
17 See Senator Lodge’s address in the Senate, S. Doc. 353, 62 Cong., 2 sess., p. 13; Senator Root’s address, Cong. Record, p. 3049.
18 See Senator Lodge’s address, supra, p. 26. The pertinent portion of Senator Lodge’s resolution reads as follows:
“Resolved further, That the Senate advise and consent to the ratification of the treaty with the understanding, to be made a part of such ratification, that any joint high commission of inquiry to which shall be referred the question as to whether or not a difference is subject to arbitration under Article I of the treaty, as provided by Article III thereof, the American members of such commission shall be appointed by the President, subject to the advice and consent of the Senate, and with the further understanding that the reservation in Article I of the treaty that the special agreement in each case shall be made by the President by and with the advice and consent of the Senate means the concurrence of the Senate in the full exercise of its constitutional powers in respect to every special agreement, whether submitted to the Senate as the result of the report of a joint high commission of inquiry under Article III or otherwise.” (S. Doc. 98, 62 Cong., 2 sess., p. 25; italics ours.) The adoption of this resolution would also have cured any constitutional difficulty which might be thought to have arisen with respect to the third paragraph of Article III as interpreted by the majority of the Committee on Foreign Relations.
18a See Cong. Record, Vol. 48, No. 73, p. 3054.
19 See S. Doc. 98, 62 Cong., 1 sess., reprint, pp. 10, 27.
20 See Cong. Record, Vol. 48, No. 75, p. 3243.
21 S. Doc. 298, 62 Cong., 2 sess., p. 10.
22 Cong. Record, Vol. 48, p. 3047.
23 See reference, supra.
24 Cong. Record, Vol. 48, No. 72, p. 2987.
25 Cong. Record, Vol. 48, p. 3050.
26 Senator Lodge’s address in the Senate, S. Doc. 353, 62 Cong., 2 sess., p. 24.
26a See Treaties and Conventions, pp. 2248-2258, at 2254. See also Scott, The Hague Peace Conferences, Vol. I, pp. 415-422.
27 Senator Bacon said in his speech in the Senate referring to the question of the Southern bonds:
“I do assert it as a fact of which I am as confident as I am of anything else that I have no personal knowledge of that there is now in the State Department, or has been in the recent past, one or more demands or suggestions upon the part of foreign governments upon the Federal Government to take up this question of the bonds of the Southern States which were not paid. If I am wrong about that I invite correction of it, not only here but elsewhere.” (Cong. Record for March 9,1912, Vol. 48, p. 3245.)
If the Senator is right in this statement it would seem that the refusal of the Senate to accept the conclusive and yet inoffensive general terms in which the negotiators of the treaties have arranged to lay the ghost of the southern bonds was peculiarly unfortunate. If such representations have been made it requires no stretch of the imagination to guess that they have been made by some of the leading commercial nations of Europe such as England, France or Germany, where the foreign holders of the repudiated southern bonds for the most part reside.
Germany and Japan are, perhaps, the two foreign nations with whom it would be of the most practical importance to conclude general arbitration treaties, and yet one clause of the Bacon amendment, the provision with respect to the admission of aliens to our educational institutions, strikes unquestionably at Japan, and it is quite within the realm of possibility that the exception with respect to State indebtedness, eo nomine, may be found to have unnecessarily irritated Germany.
28 In this connection it is interesting to note that the Japanese press is already beginning to suggest that the amended treaties are not treaties of “general arbitration” within the meaning of Article 4 of the revised Anglo-Japanese treaty of alliance, and hence, even if ratified they will not bring into effect the provisions of that article relieving Great Britain from any obligation to go to war with a nation with which it has a “treaty of general arbitration.”