ARBITRATION
During the year 1904, there was a great general movement all over
the world in the direction of arbitration treaties. Indeed, so
general did it become, and so universal was the form used, that it
became known as the Mondel or world treaty. The treaties were very
brief, and merely provided that differences which may arise of a
legal nature or relating to the interpretation of treaties existing
between two contracting parties, and which it may not have been
possible to settle by diplomacy, shall be referred to the permanent
court of arbitration established at The Hague; provided, nevertheless,
that they do not affect the vital interests, the independence, or
the honor of the two contracting States, and do not concern or
involve the interests of third States. There was a second article
in the treaty, which provided that in each case a special agreement
should be concluded defining clearly the matter in dispute, the
scope of the powers of the arbitrator, the periods to be fixed for
the formation of the arbitral tribunal, and the several stages of
the procedure.
President Roosevelt and Secretary Hay were very much in favor of
these treaties, and sent to the Senate, for its ratification,
treaties in substantially the foregoing form, with France, Portugal,
Great Britain, Switzerland, Germany, Italy, Spain, Austria, Sweden,
Norway, and Mexico. The treaties were considered with great care
by the Committee on Foreign Relations. We all favored arbitration
in theory, and I do not think any one wanted to oppose the treaties;
but a number of questions confronted us. I neither have the right
nor do I expect to detail what has taken place in the Committee on
Foreign Relations; but I can say that the subject was discussed in
the press, whether such treaties would not compel us to consider
as matters for arbitration claims against the States, growing out
of the Civil War and Reconstruction.
In the judgment of some, such claims were proper subjects of
arbitration under this Mondel form of treaty.
President Roosevelt, who was following closely the treaties in the
Senate, and with whom I had talked concerning these objections,
wrote me a letter, which he marked personal, but which appeared in
the afternoon papers almost before the letter reached me, it having
been given out at the White House, in which he said:
"_January 10, 1905_.
"My dear Senator Cullom:
"I notice in connection with the general arbitration treaties now
before the Senate, that suggestions have been made to the effect
that under them it might be possible to consider as matters for
arbitration claims against certain States of the Union in reference
to certain State debts. I write to say, what of course you personally
know, that under no conceivable circumstances could any such
construction of the treaty be for a moment entertained by any
President. The holders of State debts take them with full knowledge
of the Constitutional limitations upon their recovery through any
action of the National Government, and must rely solely on State
credit. Such a claim against a State could under no condition be
submitted by the general Government as a matter for arbitration,
any more than such a claim against a county or municipality could
thus be submitted for arbitration. The objection to the proposed
amendment on the subject is that it is a mere matter of surplusage,
and that it is very undesirable, when the form of these treaties
has already been agreed to by the several Powers concerned, needlessly
to add certain definitions which affect our own internal policy
only; which deal with the matter of the relation of the Federal
Government to the States which it is of course out of the question
ever to submit to the arbitration of any outside tribunal; and
which it is certainly absurd and probably mischievous to treat as
possible to be raised by the President or by any foreign power.
No one would even think of such a matter as being one for arbitration
or for any diplomatic negotiation whatever. Moreover, these treaties
run only for a term of five years; until the end of that period
they will certainly be interpreted in accordance with the view
above expressed.
"Very truly yours,
"(Signed) Theodore Roosevelt.
"Hon S. M. Cullom, U. S. Senate."
But a more serious question was met when we came to consider the
second article of the treaty, which provided that in each case a
special agreement should be made defining clearly the matter in
dispute, the scope and powers of the arbitrators, and the periods
to be fixed for the formation of the arbitral tribunal. The
difficulty confronting us was whether it was the intention to submit
the special agreements referred to in article two for the ratification
of the Senate. It was the unanimous opinion that these special
agreements should be submitted to the Senate.
I believe that as the treaties were drafted it would be the
Constitutional duty of the President to have each special agreement
submitted for ratification, because the article provided that "the
high contracting parties shall conclude such special agreement."
The Senate is a part of the treaty-making power, and would be
included in the term "high contracting parties." But the wording
of article two left some doubt as to the intention of those
negotiating the treaty; and then, again, it might have been claimed
that article one, agreeing to arbitrate the questions therein
enumerated, might be construed as an agreement in advance on the
part of the Senate, to give to the Executive the general power to
make arbitration agreements without reference to the Senate. Of
course, the Senate, even if it so desired, could not thus delegate
the treaty-making power to the Executive alone.
There was so much difference of opinion that I took occasion to
submit the question to both President Roosevelt and Secretary Hay,
whether it was the intention on the part of the executive department
to send these special agreements to the Senate for ratification.
They both replied that it was not; that one of the purposes of the
Executive in making the treaties was to enable the Administration
to go ahead and make the special agreements without consulting the
Senate.
Under these circumstances, it was almost the unanimous judgment of
the Senate that the treaties should be amended by striking out the
words "special agreement": and substituting the word "treaty," a
Constitutional term about which there could be no doubt. I considered
at the time that the declaration and agreement contained in these
treaties in favor of arbitration were just as strong, just as broad,
and just as obligatory with the proposed amendment as without it.
It was an agreement on the part of the President and Senate that
the President and Senate, the treaty-making power, would submit
differences to arbitration.
The Senate was severely criticised at the time for being too
technical and standing in the way of arbitration; but in my judgment
it was not a trifling question. It could not be put aside. Even
if the amendment had not been adopted, the President, if he followed
the Constitution, should have submitted these special agreements
to the Senate for ratification; but he took the positive stand that
he would not submit them, and nothing remained for the Senate to
do but to assert and uphold its rights as a part of the treaty-
making power, and adopt the amendment to which I have referred.
I do not think I violate any of the rules of etiquette by quoting
here President Roosevelt's letter written to me after he had learned,
through the press, that the Senate Committee on Foreign Relations
had amended the treaties.
"White House, Washington,
"_February 10, 1905_.
"My dear Senator Cullom:
"I learn that the Senate Committee on Foreign Relations has reported
the arbitration treaties to the Senate, amending them by substituting
for the word 'agreement' in the second article the word 'treaty.'
The effect of the amendment is to make it no longer possible, as
between its contracting parties, to submit any matter whatever to
arbitration without first obtaining a special treaty to cover the
case. This will represent not a step forward but a step backward.
If the word 'agreement' were retained it will be possible for the
Department of State to do as, for instance, it has already done
under The Hague treaty in the Pious Fund arbitration case with
Mexico, and submit to arbitration such subordinate matters as by
treaty the Senate had decided could be left to the Executive to
submit under a jurisdiction limited by the general treaty of
arbitration. If the word 'treaty' be substituted the result is
that every such agreement must be submitted to the Senate; and
these general arbitration treaties would then cease to be such,
and indeed in their amended form they amount to a specific
pronouncement against the whole principle of a general arbitration
treaty.
"The Senate has, of course, the absolute right to reject or to
amend in any way it sees fit any treaty laid before it, and it is
clearly the duty of the Senate to take any step which, in the
exercise of its best judgment, it deems to be for the interest of
the Nation. If, however, in the judgment of the President a given
amendment nullifies a proposed treaty it seems to me that it is no
less clearly his duty to refrain from endeavoring to secure a
ratification by the other contracting power or powers, of the
amended treaty; and after much thought I have come to the conclusion
that I ought to write and tell you that such is my judgment in this
case.
"As amended, we would have a treaty of arbitration which in effect
will do nothing but recite that this Government will when it deems
it wise hereafter enter into treaties of arbitration. Inasmuch as
we, of course, now have the power to enter into any treaties of
arbitration, and inasmuch as to pass these amended treaties does
not in the smallest degree facilitate settlements by arbitration,
to make them would in no way further the cause of international
peace. It would not, in my judgment, be wise or expedient to try
to secure the assent of the other contracting powers to the amended
treaties, for even if such consent were secured we would still
remain precisely where we were before, save where the situation
may be changed a little for the worse. There would not even be
the slight benefit that might obtain from the more general statement
that we intend hereafter, when we can come to an agreement with
foreign powers as to what shall be submitted, to enter into
arbitration treaties; for we have already, when we ratified The
Hague treaty with the various signatory powers, solemnly declared
such to be our intention; and nothing is gained by reiterating our
adherence to the principle, while refusing to provide any means of
making our intention effectual. In the amended form the treaties
contain nothing except such expression of barren intention, and
indeed, as compared with what has already been provided in The
Hague arbitration treaty, they probably represent not a step forward
but a slight step backward, as regards the question of international
arbitration. As such I do not think they should receive the sanction
of this Government. Personally it is not my opinion that this
Government lacks the power to enter into general treaties of
arbitration, but if I am in error, and if this Government has no
power to enter into such general treaties, then it seems to me that
it is better not to attempt to make them, rather than to make the
attempt in such shape that they will accomplish literally nothing
whatever when made.
"Sincerely yours,
"(Signed) Theodore Roosevelt.
"Hon. S. M. Cullom, U. S. Senate."
This letter was read to the Senate, and notwithstanding the positive
declaration by Mr. Roosevelt that he would not ask any of the
foreign Governments to consent to the amendment made by the Senate,
the treaties were amended and ratified by the Senate.
I told the President in advance of the action of the Senate what
would be done, and he rather curtly remarked that the matter was
closed, and that he would not ask the other Governments to agree
to the treaties as amended. And no further action was taken on
the treaties.
When Secretary Root entered the State Department he took an entirely
different view of the subject. I do not know whether Mr. Root was
of the opinion that the Senate was right in insisting on what it
considered to be its duty in amending the treaties, but I do know
that he negotiated arbitration treaties with Austria, China, Costa
Rica, Denmark, France, Great Britain, Haiti, Italy, Japan, Mexico,
The Netherlands, Norway, Paraguay, Peru, Portugal, Salvador, Spain,
Sweden, and Switzerland, every one of which treaties contained the
stipulation that the special agreements referred to in article two
were to be made by the President of the United States, by and with
the advice and consent of the Senate. These treaties were promptly
ratified and are a part of the supreme law of the land to-day.
Secretary Root was very wise in negotiating and sending to the
Senate this series of Mondel or world treaties. All the Nations
of the world were agreeing to these treaties among themselves, and
it would have been a rather remarkable condition if the United
States, of all the great Nations, should have remained aloof. I
do not believe that Mr. Root had any difficulty in obtaining the
consent of the signatory powers to the treaties, with the stipulation
that the special agreement should come to the Senate for ratification;
but for some reason or other, at the time when the first treaties
were under consideration, President Roosevelt, as indicated in the
letter which I have quoted, and probably more particularly Secretary
Hay, were both very much incensed at the action of the Senate, and
permitted the first treaties to expire.
This general movement in the direction of arbitration was one of
the most important events of the beginning of the twentieth century.
The importance of the adoption of this principle by the Nations of
the world cannot be overestimated. It has been well said that
international arbitration is the application of law and of judicial
methods to the determination of disputes between Nations, and that
this juristic idea in the settlement of international disputes is
largely an outgrowth of the international relations, the new and
advanced civilization of the nineteenth century.
I do not believe the time will ever come when wars will cease,--
the United States obtained its independence by means of a revolution
and war; but peace and arbitration have been advocated by the great
majority of the enlightened statesmen of the world. There were
many great wars during the nineteenth century, including our own
Civil War, the greatest, the bloodiest, recorded in all history;
but during this century arbitration has made wonderful strides.
In the same period there were four hundred and seventy-one instances
of international settlements involving the application of the
principle of international arbitration. Many of these arbitrations
were of the greatest importance; and I remark here that in the
number of arbitrations and the importance of the questions involved,
the United States and Great Britain have unquestionably led the
way. In fact, since the War of 1812, every subject of dispute
between the two Nations, which it was found impossible to settle
by diplomacy, has been submitted to arbitration. Only within a
few years the Alaskan boundary was settled by arbitration, and
within the past year a fisheries dispute, a cause of embarrassment
since 1818, was submitted to The Hague tribunal and a decision
rendered, which, though not entirely satisfactory to the United
States, we accepted as the final settlement.
We have uniformly adopted arbitration as a means of settlement for
disputes with the Central and South American Republics. With Mexico
the treaty of Guadalupe Hidalgo, of 1848, stipulates that future
disputes between the two republics shall be submitted to arbitration.
We have a general arbitration treaty for the settlement of pecuniary
claims with all the Central and South American Republics. At the
first Hague Conference, which met in 1899, a general arbitration
treaty was agreed to. It was a non-compulsory arbitration, and at
the time represented the farthest steps in advance in the direction
of arbitration which all the Nations were willing to take together.
That treaty was perfected at the second Hague Conference of 1907;
and, in addition, a series of treaties were agreed to concerning
the opening of hostilities, the laws and customs of war on land,
the rights and duties of neutrals, submarine contact mines,
bombardment by naval forces, the right of capture in naval war,
neutral powers in naval war, an international prize court, and the
discharge of projectiles from balloons, and the Geneva Convention
was revised. Aside from the prize court treaty, concerning which
there were Constitutional objections, these treaties were ratified
by the Senate, the United States being one of the first Nations of
the world to take this step. Unlike the first Hague Conference,
the South American Republics participated in the Second Conference,
and it was the first time in all the world's history that the
representatives of all the independent Nations in the world gathered
together in the interest of peace and agreed on certain principles
which should guide them in the conduct of war, if war must come.
I take pride in the fact that the treaties agreed to at the first
Hague Conference, and the treaties agreed to at the second Hague
Conference, and the series of Mondel treaties, were reported from
the Committee on Foreign Relations, and ratified by the Senate
during my chairmanship of the Committee on Foreign Relations.
The last step to date in the interest of the peaceful settlement
of international disputes has been taken by President Taft in the
arbitration treaties between the United States and Great Britain
and between the United States and France, both of which were signed
by the representatives of this and the other two Governments in
August, 1911. The ban of secrecy has been removed from these
documents, and I feel at liberty to make brief mention of them,
although, as they still are pending in the Senate, I should not
feel disposed to discuss them at length. The treaties mark an
advance over the arbitration treaties of 1908 in that they bring
into arbitration a much wider range of subjects than is covered by
the older conventions. In the latter, questions of "national
honor," "vital interest," etc., were excluded from consideration,
whereas, under the pending agreements, "all differences which are
justiciable in their nature by reason of being susceptible of
decision by the application of the principles of law and equity,"
are made subject to arbitration under the rules laid down in the
documents.
There also is a provision granting to the Commission created by
the treaties the right to determine whether any given question
presented to it may be considered justiciable under the language
of the treaties. This latter provision is regarded by the President
and Secretary Knox as highly desirable in the interest of the
expedition of business, but it met such opposition in the Committee
on Foreign Relations that its elimination from the treaties was
recommended to the Senate. The objection to the provision is based
upon the theory that it would deprive the Senate of its constitutional
right to pass upon all treaties. I have not accepted this view,
because I do not believe in hampering working bodies when such a
course can be avoided without doing violence to the fundamental
law as I believe in this case it can be.
With this provision expunged, the Committee is largely favorable
to the treaties, and they are now pending in the Senate. It,
however, has become evident that they cannot be speedily acted
upon, and as I write, in the closing days of the special session,
called at the beginning of the Sixty-second Congress, the indications
are strong that they will be compelled to go over to the regular
session in December for final consideration. What their fate then
may be no one can foretell.
It is well understood that if these treaties should be ratified
they will be followed by similar agreements with the other civilized
nations of the world. The spirit of arbitration has taken strong
hold on our big-hearted and peace-loving President, and I am
confident that he will leave no stone unturned to promote good will
among nations as he is wont to do among men. Whatever differences
of opinion there may be, regarding the details of any particular
negotiation, no person of whatever party or creed can doubt President
Taft's splendid patriotism and devotion to the highest ideals of
citizenship. I am sure that these treaties have been inspired by
these sentiments, and, being honest and benevolent in their purpose,
the principle they embody must prevail in the end.