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THE GREEN BAG
establishment of an International Bureau at The Hague to conduct the administrative business of the Court (Article XXII). Agreement is made for the appointment of judges by the several Powers (ArticleXXIII) and for payment of the expenses of the International Bureau (Article XXIX). Ar ticle XXXI contains the statement that "The Powers which resort to arbitration shall sign a special act (compromis) in which the subject of the difference shall be pre cisely defined as well as the extent of the powers of the arbitrators." There has been much discussion in this country of the question whether ratification of The Hague Convention by the Senate authorized the President at his discretion to enter into agreements with other states to refer pending or unknown disputes of the United States to the Permanent Court, or to employ other means of procedure set forth in the Convention. The Hon. John W. Foster, in the course of a learned article in the Yale Law Journal for December, 1901,* said: "But I apprehend that should our gov ernment decide to refer any dispute with a foreign government to The Hague Tribunal, President Roosevelt, or whoever should suc ceed him, would enter into a convention with the foreign government, very carefully setting forth the question to be arbitrated, and submit that convention to the Senate for its advice and consent. If I read the Constitution of the United States and The Hague Convention aright, such would be the only course permissible by those instru ments." The late Frederick W. Holls, Secretary of the American delegation to The Hague Con ference, expressed the view that — "The appointment of a Commission of Inquiry, having no further necessary con sequences than the providing for each party's share of necessary expenses, would seem to be within the ordinary diplomatic functions 1 The Treaty-Making Power Under The Con stitution, XI, Yale Law Journal, p. 69.
of the President and the Department of State by memorandum or protocol, whereas an agreement to submit any question to a court of arbitration, the decision to be bind ing upon the parties, must necessarily take the form of a treaty requiring the constitu tional cooperation of the Senate." ' On the other hand, Judge Baldwin has said: "The Hague Convention, when ratified by the Senate, became thus a standing war rant, or, so to speak, a power of attorney, from the United States to the President to submit such international controversies as he might think fit to the ultimate decision of the International Court of Arbitration." * When it is considered that The Hague Convention contained no agreement to re sort to arbitration, but rather purported to facilitate the means for the adjustment of international differences by providing and suggesting appropriate methods of proce dure, it is difficult to see how ratification by the Senate gave to the President a special power to enter into agreements to have recourse to the Permanent Court or to other tribunals. Undoubtedly the Senate did authorize the President to cooperate with the other signatory powers in taking the necessary steps for the establishment and maintenance of the Permanent Court. But the adherence of the United States to the Convention sheds no light on the general question whether or not the President may, at his discretion, submit causes to arbitra tion. If he has such a right, it must be derived from a power, incidental to the management of the diplomatic intercourse of the nation, to adjust and settle disputes. It must be obvious that the existence and scope of that right are matters wholly distinct from and unrelated to the methods of procedure which he may employ in its exercise. 1 The Peace Conference at The Hague. New York: 1900, p. 216. 1 IX, Yale Review, p. 399 at p. 415.
