In 1911 President Taft negotiated arbitration treaties with Great Britain and France providing for the arbitration of defined classes of cases and for decision by an international joint high commission upon the question of whether a specific dispute was within these classes." The Senate Foreign Relations Committee reported adversely on the latter provision:

78

"This recommendation is made because there can be no question that, through the machinery of the joint commission, as provided in Articles II and III and with the last clause of Article III included, the Senate is deprived of its constituent power to pass upon all questions involved in any treaty submitted to it in accordance with the Constitution. The committee believes that it would be a violation of the Constitution of the United States to confer upon an outside commission, powers which, under the Constitution, devolve upon the Senate. . . . 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 delegation of power here objected to was of the same sort as that to which exception had been taken in the Hay treaties of 1905. In the one case, however, delegation was to the President, in the other to an international commission." Neither case arrange the compromis on application of one party where the dispute is "covered by a general treaty of arbitration concluded or renewed after the present convention has come into force," specifying subjects for compulsory arbitration; and where the dispute arises from contract debts due by one power to the nationals of another. (Malloy, Treaties, p. 2238.) The Senate consented to ratification of the treaty with a reservation to this article asserting that the United States "excludes from the competence of the permanent court the power to frame the 'compromis' required by general or special treaties of arbitration concluded or hereafter to be concluded by the United States, and further expressly declares that the 'compromis' required by any treaty of arbitration to which the United States may be a party shall be settled only by agreement between the contracting parties, unless such treaty shall expressly provide otherwise." (Ibid., p. 2248, and Scott, ed., Reports of the Hague Conferences, introduction, p. xxvii.)

77 These treaties though never ratified are printed in Charles, Treaties, pp. 380-389.

78 62d Cong., Ist sess., S. Doc. 98, p. 6; Cong. Rec., 47: 3935.

79 It may be noticed that the Taft treaties accepted the point upon which the Senate had insisted in 1905 and required that the "compromis" submitting each case be a treaty consented to by the Senate, even after the Joint High Commission had given its decision. See next note.

seems to involve a delegation of legislative power, but rather of judicial power, to interpret the treaty. The minority report of the Senate Committee signed by Senators Root and Cullom pointed out that the majority view could "not be maintained except on the theory that all general treaties of arbitration" involve a like unconstitutional delegation of power, the only difference being that the treaties under consideration submitted "certain described classes" of cases to arbitration, instead of particular cases. The decision of the joint high commission on what questions are justiciable "is not delegating to a commission power to say what shall be arbitrated; it is merely empowering the commission to find whether the particular case is one that the United States have said shall be arbitrated." 80 President Taft, Senator Sutherland, J. B. Moore, and other constitutional authorities have endorsed this opinion.81

A logical carrying out of the majority theory would seem to deny any power to conclude treaties in good faith, for all treaties require interpretation, and to say that the interpretations must always be according to the will of the existing treaty-making power of the United States, however that may differ from the intent of the original negotiators, is virtually to substitute political expediency for treaty obligation. Good faith would seem to require that the true intent of the instrument govern its application through its entire life, and it is hard to see where a more impartial determination of what this intent was could be obtained than in an international tribunal. The common law doctrine that no one should be judge in his own case would seem as applicable to international as to private relations.8

82

80 Ibid., p. 9. This report was signed by Senators Root and Cullom. In a special minority report, Senator Burton pointed out that even after decision by the joint high commission the compromis" would go to the Senate. "In such case, as in every other case, it would be within the power of the Senate to refuse its advice and consent to the special agreement, but it would be contrary to its treaty obligation." Ibid., p. 12. See also Wright, Am. Jl. Int. Law, 12: 93, Col. Law Rev., 20: 133.

81 Taft, The United States and Peace, p. 113; Our Chief Magistrate, p. 107; Sutherland, op. cit., p. 132; Moore, Independent, Aug. 8, 1911.

82 See infra, sec. 139.

This particular question has not been raised in connection with the League of Nations Covenant because, according to Article XIII, disputes can be submitted to arbitration only by consent of the parties and in the United States this consent would be indicated by the treaty-making power in concluding the instrument of submission. Senator Knox and others have, however, in effect asserted that the powers conferred upon the Council and Assembly of the League of Nations are in part legislative, and hence in so far the treaty would be unconstitutional. It is believed that this criticism overlooks three important aspects of the Covenant. (1) "Decision at any meeting of the Assembly or of the Council (except where otherwise expressly provided) shall require the agreement of all the members of the League represented at the meeting," thus the United States would not be delegating legislative power any more than it has in participating in international conferences such as the Hague, Algeciras or Versailles Conferences. It will be noticed that it is not the agreement of the American representative which is required but of the "member of the League," that is, of the United States itself, and as has been noticed the United States cannot be bound by any agreement unless the proper constitutional organ has acted. Thus if the decision was of a character which could only be made by the treaty-making power, the United States would not be bound until the Senate had consented. Apparently the only decisions, aside from questions of procedure,87 which by express exception might be made without consent of the United States, are to admit new members (Art. I)

86

83 The scheme drafted by Mr. Root and others for the international court authorized by Article XIV of the Covenant would, however, raise the issue, since Article XXXIV provides: "In the event of a dispute as to whether a certain case is within any of the categories above mentioned, the matter shall be settled by the decision of the court." Am. J. Int. Law, Supp. 14: 379 (Oct., 1920). This was modified by the Assembly of the League of Nations in December, 1920, Ibid., 15: 264.

84 Address in Senate, March 1, 1919.

85 Art. V. The United States is by the terms of the Covenant represented in both the Council and the Assembly.

86 Supra, sec. 24.

87 These may be settled by a majority vote (Art. V). Amendments to the Covenant, though requiring ratification by only a majority of the members represented in the Assembly, require ratification by all the members

which requires two-thirds of the Assembly but which is clearly not an exercise of legislative power, and to make a report in a dispute likely to lead to a rupture, to which the United States is a party. (Art. XV.)88 This will be discussed presently.

(2) The other consideration which seems to have been overlooked by critics of the Covenant is that no legislative or binding political power has been conferred upon the Council or Assembly. The powers of these bodies are limited to the giving of "advice" or the making of "proposals," ""recommendations" or reports, which even if unanimous are of binding effect in only three cases.89 These three cases are: (a) The limits of armament once agreed upon by members "shall not be exceeded without the concurrence of the Council." (Art. VIII, sec. 4.) (b) If a country has voluntarily accepted a mandate, and has neglected to fully define "the degree of authority, control or administration" which it is to exercise, the Council may "explicitly define" these powers in each case. (Art. XXII, sec. 8.) (c) A dispute likely to lead to a rupture must be submitted to the Council or Assembly and if no solution is reached the Council or Assembly make a report.

"If a report by the Council is unanimously agreed to by the members thereof, other than the representatives of one or more of the parties to the dispute, the members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report." (Art. XV, sec. 6.)

represented in the Council, thus always including the United States (Art. 26).

88 See Lowell, The Covenanter, N. Y., 1919, p. 81, and British Official Commentary, printed in Pollock, The League of Nations, London, 1920, p.

208.

89 Lowell, The Covenanter, pp. 40, 80. Some doubt exists as to whether the "advice" which the Council may give as to the method of carrying out the guarantees of Article X is obligatory. Lowell (Ibid., p. 40) and Pollock (op. cit., p. 128) believe not, while the Official Swiss Commentary holds that for members that have assented to the “advice,” if unanimous, it is obligatory. (League of Nations, World Peace Foundation, III, No. 3, p. 125.) So far as the "advice" extends merely to an interpretation of the meaning of the treaty, we are inclined to agree with the latter opinion (supra, sec. 35), which appears to be consonant with the interpretation of similar terms in article XVI by the Second Assembly of the League (see Report of International Blockade Committee, Second Assembly Document No. 28, part II, and resolutions adopted October 4, 1921, Official Journal, Special Supp. No. 6, p. 25).

If the dispute is submitted to the Assembly it has the same effect "if concurred in by the Representatives of those Members of the League represented on the Council and by a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dispute." (Art. XV, sec. 10.)

Although binding decisions may be given in the first two cases by unanimous action of the Council, the power exercised would not be "legislative" but merely a carrying out of the policy already agreed upon in the treaties providing for disarmament or acceptance of the mandatory. Decision on such a question clearly may be delegated.90 In the third case which relates to the settlement of political controversies which the parties have not agreed to submit to arbitration, it will be observed that the decision even if unanimous with exception of the parties to the dispute is not strictly binding. If the United States were a party to the dispute it would not be legally bound to follow the report, even if all other members of the Council or Assembly had signed it. Doubtless, however, there would be a practical compulsion, in view of the fact that it could get no members of the League as allies in case it went to war with the other party to the dispute.o1

(3) A third consideration which should be noticed is that the most discussed provisions of the Covenant such as Articles X, XII, and XVI do not delegate power at all. They are guarantees which leave to the members of the League discretion in deciding upon the method for carrying them out in concrete cases.92 Of course the United States would have to follow constitutional provisions in doing so. It does not appear that there is any unconstitutional delegation of legislative power in the League of Nations Cov

enant.

93

64. Limitations Derived from Powers of the Judiciary.

The constitutionality of a treaty seems never to have been questioned on the ground that it was itself an exercise of

90 Supra, sec. 60.

91 See British Commentary, Pollock, op. cit., p. 212; Swiss Commentary, op. cit., p. 137.

92 Lowell, The Covenanter, p. 37.

93 W. H. Taft, The Covenanter, p. 60 et seq. See also Wright, Am. Jl. Int. Law, 12: 75, and supra, sec. 59.