Page:The Green Bag (1889–1914), Volume 17.pdf/248

 AGREEMENTS OF THE UNITED STATES certain instances where the President has been impliedly or expressly authorized by the Senate, in its executive capacity, to con tract with foreign states, and to cases where at the present time it is maintained by publicists that such authority has been given. The Secretary of State and the Mexican minister in Washington on June 4, 1896, signed an agreement for the reciprocal right to pursue savage Indians across the boundary line by troops of their respective governments. Article X stated, "the Sen ate of the United States having authorized the President to conclude this agreement, it shall take effect immediately." l By the terms of Article XXI of the treaty of Guadaloupe Hidalgo with Mexico, signed February 2, 1848, and ratified by the Sen ate — a contract which is still in force — a permanent agreement was made for the set tlement of future differences between the two nations, incapable of adjustment through diplomatic channels "by the arbi tration of Commissioners appointed on each side, or by that of a friendly nation." 2 It was further agreed that in case "such course be proposed by either party, it shall be acceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circumstances of the case." The agreement did not attempt to provide machinery to facilitate the settle ment of future disputes, but simply to bind the parties to arbitrate future disputes, subject to certain reservations. The treaty contains no statement as to any preliminary agreement to be entered into providing for the submission of a dispute which might arise. It did not indicate who, in behalf of the United States, should determine what particular controversy might be properly submitted to arbitration, or who should limit the scope of the reference, or who specify the procedure to be followed. Can it be reasonablv maintained that the Sen1 U.S. For. Rel. 1896, p. 438. 1 Treaties of the United States in Force 1899, p. 389 at p. 400-

231

ate, by failing to reserve the right to share in the determination of these matters, sur rendered them wholly to the control of the President? "A treaty," writes Judge Bald win, "which leaves any matters to the future determination of the President, vests him with the power to determine them as effectually as an act of Congress could do." * May it be fairly said that the reference of the Pious Fund Claim in 1902 to The Hague Tribunal by the terms of a protocol not submitted to the Senate was a reasonable exercise of a right conferred upon the Presi dent by the treaty of 1848? By the ratification of The Hague Conven tion of 1899, establishing the Permanent Court of Arbitration, the United States be came a party to an agreement of lasting significance. That convention fulfils a two fold function.2 It is first, a declaration respecting the legal value of means adapted to the peaceful solution of international differences, together with a recommendation for their employment whenever occasion may arise; secondly, it embodies an agree ment for the establishment of a Permanent Court of Arbitration, and a system of procedure whereby the signatory states may avail themselves of any of the measures de vised or suggested in the convention. It is not a compact to refer differences to arbi tration, or to employ commissions of in quiry. With the exception of the agree ment in Article II, to have recourse to the good offices or mediation of one or more friendly Powers, in case of serious disagree ment or conflict, the executory undertakings of the high contracting parties relate to the establishment of the Court, or to matters of procedure. For example, arrangements are made for the creation of an Administration Council composed of the diplomatic representatives of the signatory powers at The Hague (Article XXVIII), as>ell as for the 1 IX, Yale Review, p. 399 at p. 415. 1 The text of the Hague Convention is con tained in United States For. Rel. 1902, Appendix No. II, p. 169.