DIPLOMATIC AGREEMENTS BY PROTOCOL.
During the public discussion of the Santo Domingo question and the
protocol by which the Santo Domingo Improvement Company claim was
sent to arbitration, and later during the consideration of it,
there was criticism of the Executive branch of the Government on
account of its disposition to make international agreements of
various kinds, and put them into operation without submitting them
to the Senate. The practice became more general under President
McKinley and Secretary Hay than it had under other Administrations,
and it seemed the policy to get along in every case, if possible,
without Senatorial action. It was a subject in which I took very
great interest; I came to the conclusion that the practice had
become too general, and I took occasion to tell Secretary Hay my
views.
I found that the State Department, under different Administrations,
had submitted private claims of our citizens against foreign
Governments to arbitration by protocol. This has been the rule
frequently adopted for very many years. There were cases, I found,
where the protocol submitting a claim to arbitration had been sent
to the Senate and ratified, and it was the general rule that where
a claim is presented by a foreign Government against this government,
and the same is submitted to arbitration, it is done by treaty.
I took occasion to look into the question of the effect of an
unratified protocol. It may be said generally that an unratified
protocol differs from a treaty in that the protocol is not ratified
by the Senate and is not a part of the supreme law of the land.
Under our system of government, treaties occupy a unique position.
They are not only binding internationally, but the Constitution
makes treaties a part of the supreme law of the land--that is, a
part of our own municipal law. A treaty, if of later date, and in
conflict with a law passed by Congress, repeals so much of the law
as it conflicts with; but an unratified protocol, or any other
international agreement, no matter by what name it is called, not
submitted to the Senate, does not have the effect of a treaty, as
that term is defined in the Constitution. A protocol is binding
merely on the Executive who makes it, and, as has been well said,
such protocol is binding on the administration in a moral sense
only.
Nevertheless it has been the practice to make so-called diplomatic
agreements concerning very important matters without their submission
to the Senate.
For instance, the agreement of 1817, concerning the naval forces
on the Great Lakes, was considered in force and observed by the
two Governments for a year or more before it was submitted to the
Senate at all. Horse Shoe Reef, in Lake Erie, was transferred to
the Government by a mere exchange of notes between Lord Palmerston
and Mr. Lawrence, our Minister to Great Britain; and I might refer
to a long list of arbitrations, some of very great importance,
agreed to by unratified protocols. The very important protocol
concluded by the powers after the Boxer troubles in China was not
sent to the Senate. Important agreements are often made under the
name of _modus vivendi_ without submission to the Senate.
Very little comment is to be found in books on international law
concerning protocols or diplomatic agreements. There is no doubt
that the Executive has the right to enter into a protocol preliminary
to the negotiation of a treaty. This is a common practice. We
have such protocols preliminary to treaties of peace. As to the
claims protocols, the Executive Department has taken the position
that the President, who is in charge of our foreign relations, has
wide discretion in settling disputes by diplomacy; and that a claims
protocol is in the nature of a settlement of a claim of a citizen
of our country against a foreign Government, by diplomacy.
The term "protocol," or diplomatic agreement, or _modus vivendi_,
is not found in the Constitution. The Constitution uses only one
term in describing agreements between this Government and foreign
powers, and that is the term "treaty"; and every agreement between
the United States and a foreign Government, to have the effect of
a treaty, to be a part of the supreme law of the land, must be
ratified as the Constitution prescribes, by a two-thirds vote of
the Senate.
When Mr. Root entered the State Department, it seems to me that he
stopped the practice very largely of making diplomatic agreements.
It seemed to be his policy, and a very wise one, to seek, rather
than avoid, consulting the Senate. I know that under his administration
agreements were made in the form of a treaty and sent to the Senate
which other administrations would consider they had a perfect right
to make without consulting the Senate. It will be wise for future
Administrations to adhere to Mr. Root's policy in this respect.