The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1911-08-30

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all but one Of the members of tn,
commission agree and report chat suci
difference is within the scope Of Arti
Gle /, is shall be referred to arbitration
in accordance with the provisions Of
the treaty"
Cuts the Senate Out
It will be seen by examination of tho
clause just quoted that If the joint
commission, which may consist Of one
or more persons, which may be com.
posed wholly of foreigners or wholly
Of nationals, decides that the question
before them is justiciable under Arti-
Gle ! it must then go to arbitration
whether the treaty-makers power of
either country believes it to be justici-
able or not A special agreement,
coming to the Senate after the Joint
commission had decided the question
involved to be justiciable, could not
be amended or rejected by the Senate
the question was not justiciable and
did not some within the scope of Arti-
Gle /. BY this clause the constitutional
powers of the Senate are taken away
pro tanto and are transferred to a
commission, upon the composition Of
which the Senate has no control what
ever It is said that the powers Of the
President under the Constitution are
given up by the third clause of Article
III just as much as those of the Senate.
If this be true, it only makes the case
more serious, but the President, under
the provisions of Articles II and III, al
though he would be bound by the deci-
sion of the commission, can neverthe-
less control the formation of that body
To arrange the membership of the
joint commission, however, so as to de-
feat an adverse decision in advance
would not be consonant with the spirit
of the treaty, but none the less that
power of indirect control remains in
the hands of the President and in his
hands alone.
Some New Rules
In approving Article l of the treaty
the committee assents to the arbitra-
ton of all questions coming within the
rule there prescribed. The terms in
which the rule is stated are, however,
quite vague and indefinite, and they
are altogether new in international
proceedings It is possible that others
may take an entirely different view
from that entertained by the commit
tee or by the negotiators of the treaty
as to what was meant by iusticiable
or as to what was meant by the
principles of law or equity when APP
piled to international affairs, and in
the absence Of any established rules
of international law for the construc-
ton of these provisions and of any
precedents others might put upon these
Il
ferent from that which the treaty
making power now intends. Under
these circumstances to vest in an out
side commission the power to say
finally what the treaty means by its
very general and indefinite language
is to vest in that commission the pow
err to make for us an entirely different
treaty from that which we supposed
ourselves to be making.
The Vital Question
The last clause of Article III, there
fore, the Committee on Foreign Rela-
lions advises the Senate to strike from
the treaty and recommends an amend
ment to that effect. The recommends
ton 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 Sen
ate is deprived of its constitutional
power TO pass upon al questions H.
volved 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, UNI
der the Constitution, devolve upon the
Senate. 1t seems to the committee
that the Senate has no more right to
delegate its share of the treaty-making
power than Congress has to delegate
the legislative power. The Constitu-
ton provides that before a treaty can
be ratified and become the supreme
law of the land II shall receive the