United States, Great Britain, and France, which attempted to eliminate these exceptions of vital interests, honor and independence by submitting the justiciability of such disputes to a body other than the United States Senate.3 Mr. Taft's successor has been no less solicitous for the cause of international peace, but that he has been more practical is demonstrated by his success with a different policy, as the result of which the United States has negotiated and ratified a long series of treaties with many nations, which treaties, although they do not provide for the arbitration of all differences without exception, materially reduce the chances of war growing out of differences coming within the exceptions of vital interests, honor, and independence. This has been accomplished by agreeing that "All disputes of every nature whatsoever, to the settlement of which previous arbitration treaties or agreements do not apply in their terms or are not applied in fact," shall be referred for investigation and report to an international commission of inquiry, the contracting parties further agreeing not to declare war or begin hostilities during the investigation of the commission and before its report is submitted.

Such treaties are now in force between the United States and twenty other nations, namely: Bolivia, Brazil, Chile, China, Costa Rica, Denmark, Ecuador, France, Great Britain, Guatemala, Honduras, Italy, Norway, Paraguay, Peru, Portugal, Russia, Spain, Sweden, and Uruguay. Half as many others have been signed and are in the slow processes of diplomacy toward completion. The principal belligerents with which the United States is associated, it will be noted, are among the nations with which these treaties are now in force with the United States. The reason for the non-appearance of Germany in the list of concluded treaties, after its acceptance of the plan in principle, is now known to have been Germany's unwillingness to forego what it believed to be its greatest asset in war, namely, a sudden attack.*

It is submitted that no more appropriate proposal for reducing the possibility of future wars over differences of a non-arbitral nature could be submitted to the Peace Conference by the United States for general acceptance by the nations, than its own plan already generally accepted and in force with many of them separately. For the separate commissions provided in each of the American treaties, the general treaty might substitute the International Commission of Inquiry whose organization and procedure are already prescribed in the Hague Conventions for limited classes of cases, subject to such changes or amendments as may be deemed necessary.

The following is, therefore, tentatively suggested as the second article of the proposed general peace treaty:

The high contracting parties agree that all disputes between them, of every nature whatsoever, other than disputes the settlement of which is provided for 3 For the report of the Committee on Foreign Relations strongly objecting to this feature of the Taft Treaties on the ground that it violated the Constitution of the United States by attempting to delegate the treaty-making prerogatives of the Senate to an outside body, see this JOURNAL, Vol. 6, page 167 at page 172. For the final amendments made to the treaties by the Senate, which practically made it impossible for President Taft to suggest their ratification to the other governments, see ibid., page 460.

4 Gerard's My Four Years in Germany, p. 61.

and in fact achieved under Article I of the present convention, shall, when diplomatic methods of adjustment have failed, be referred for investigation and report to an international commission of inquiry, to be constituted in the manner prescribed by the Hague Convention of October 18, 1907; and they agree not to declare war or begin hostilities during such investigation and before the report is submitted.

3. PROCEDURE

We have now provided for the arbitration of certain classes of international differences, and for a delay in hostilities while all other differences are being investigated and reported upon by an international commission. Both procedures are already in force in many separate treaties, and the only merit of the present suggestion is that they be combined in a general treaty between all the parties to the Peace Conference so as to bring within their scope nations which may not have entered into such agreements with all the other members of the conference, and to substitute for the international obligation between two states contained in the separate treaty, an international covenant between each contracting state and all the other states party to the agreement. A breach, or an attempted breach, of the treaty would thus become a matter of interest to all the signatories of the international covenant instead of a local matter between the two signatures in dispute.

It now seems advisable to go further and provide some procedure for establishing for the information of all the contracting parties the exact attitude of each nation toward a dispute in which it may become involved with another nation, all being parties to the international agreement. For this purpose, it is believed that the easiest method would be to make use of the International Bureau, established at The Hague by the conventions of 1899 and 1907, as a clerk of court's office for filing what may be called the complaint and pleadings of the disputant nations. It might be provided that, whenever a dispute arises, whether of an arbitral or non-arbitral nature, and, therefore, whether falling within either of the articles previously suggested for disputes of these classes, either contracting party shall have the right to request that the case be arbitrated under Article I of the convention. The defendant nation may accept arbitration and the case will then proceed according to the arbitral procedure prescribed in the Hague Conventions. The defendant state may, however, decline to arbitrate on the ground that the question involves its vital interests, honor, or independence. In that event, the complaining state may demand that the case be submitted to investigation and report to an international commission of inquiry, and the defendant shall be obliged so to refer the case, and the stipulations of Article 2 of the international covenant will come into operation.

All the pleadings of both parties to the dispute should be made through the International Bureau, which will transmit a copy to the other party to the case, and copies to all the signatories of the international convention, who should have the liberty to give them publicity. Such action will go far toward removing the evil effects of secret diplomacy after a dispute has reached the stage where it may be the cause of war.

4. SANCTION

Should the foregoing proposals be agreed upon in a general treaty, it is believed that the honor of nations, supported by a powerful public opinion against resort to war, will be sufficient to induce disputing nations to comply with the treaty. But grave doubt now exists everywhere as to the effectiveness of international agreements backed alone by the honor of nations or public opinion. An urgent demand is made, which statesmen may not feel at liberty to disregard, that some more effective means be devised for preventing the violation of international agreements. All nations seem inclined to agree in principle that some such safeguard should be provided, and many suggestions have been brought forward, including leagues of nations, an international police, economic boycotts, disarmament, etc., but none seems to have met with sufficient favor to lead to a hope of its general acceptance.

Lacking agreement upon a more definite plan, it is submitted that the next best thing to do is for the nations to agree in general terms that in case a contracting party declines to arbitrate or to submit a question to an international inquiry, the other nations parties to the international agreement will use the means at their disposal for maintaining the status quo or restoring it until the arbitration or inquiry has taken place. The agreement should further provide that the means to be employed shall be agreed upon in concert according to the circumstances of each case as it arises. These means may be either pacific or non-pacific, accordingly as the nations may agree in each case. Such stipulations would seem to avoid what seem to be the insuperable obstacles to the creation of an international executive or to the pledging in advance of definite military, economic, or other contributions to be applied under circumstances which it is now impossible to foresee. But they will be sufficient, it is believed, to serve formal notice upon all prospective war-makers that the rest of the world is interested in seeing to it that the international agencies established to prevent the disturbance of the world's peace are made use of, and that the nations as a whole will consider and adopt the most appropriate means for enforcing the international agreement that the circumstances of the particular case may indicate.

In order to make this Convention Establishing an International Union for Arbitration or International Inquiry world-wide in its application, it should contain a clause permitting neutrals in the present war to adhere to it.

It is believed that in the foregoing suggestions may be found the germ of the international organization to which President Wilson alluded in the following paragraph from his address at the Sorbonne on December 21, 1918:

My conception of the League of Nations is just this, that it shall operate as the organized moral force of men throughout the world, and that whenever or wherever wrong and aggression are planned or contemplated, this searching light of conscience will be turned upon them and men everywhere will ask, "What are the purposes that you hold in your heart against the fortunes of the world?" Just a little exposure will settle most questions! If the Central Powers had dared to discuss the purposes of this war for a single fortnight, it never would have happened, and if, as should be, they were forced to discuss it for a year, war would have been inconceivable.

THE JONES ACT AND THE DENUNCIATION OF TREATIES

BY JESSE S. REEVES

Professor of Political Science, University of Michigan

Section 34 of the Merchant Marine Act, commonly called the Jones Act, approved by the President, June 5, 1920, is as follows:

In the judgment of Congress, articles or provisions in treaties or conventions to which the United States is a party, which restrict the right of the United States to impose discriminating customs duties on imports entering the United States in foreign vessels and in vessels of the United States, and which also restrict the right of the United States to impose discriminatory tonnage dues on foreign vessels and on vessels of the United States entering the United States should be terminated, and the President is hereby authorized and directed within ninety days after this Act becomes law to give notice to the several governments, respectively, parties to such treaties or conventions, that so much thereof as imposes any such restriction on the United States will terminate on the expiration of such periods as may be required for the giving of such notice by the provisions of such treaties or conventions.

The period of ninety days thus specified expired September 5 without any such notices of termination by the President. In explanation of the failure to act, the Secretary of State issued, September 25, the following statement:

The Department of State has been informed by the President that he does not deem the direction contained in section 34 of the so-called Merchant Marine Act an exercise of any constitutional power possessed by Congress.

Under the provisions of the section referred to, the President was directed within ninety days after the act became law to notify the several governments with whom the United States had entered into commercial treaties that this country elected to terminate so much of said treaties as restricted the right of the United States to impose discriminating customs duties on imports and discriminating tonnage dues, according as the carrier were domestic or foreign, quite regardless of the fact that these restrictions are mutual, operating equally upon the other governments which are parties to the treaties, and quite regardless also of the further fact that the treaties contain no provisions for their termination in the manner contemplated by Congress. The President, therefore, considers it misleading to speak of the "termination" of the restrictive clauses of such treaties. The action sought to be imposed upon the Executive would amount to nothing less than the breach or violation of said treaties, which are thirty-two in number, and cover every point of contact and mutual dependence which constitute the modern relations between friendly states. Such a course would be wholly irreconcilable with the historical respect which the United States has shown for its international engagements and would falsify every profession of our belief in the binding force and the reciprocal obligation of treaties in general.1

This refusal of the President to act as "authorized and directed" by Congress upon the ground that Congress has exceeded its powers, as well as upon 1 New York Times, September 27, 1920.

grounds of international policy, raises in a slightly different form the question of the respective spheres of the President and Congress relative to the termination of treaties. Owing to the well-known dual situation of treaties under the Constitution, first as international obligations and second as statements of federal law, it is obvious that by Congressional act the provisions of a treaty prior in date may be superseded by way of amendment or repeal as such federal law by Congressional enactment. Such an enactment operating ex proprio vigore would have the result, not to abrogate the treaty, but to violate it. On the other hand, a treaty may not only create a new international obligation but modify, by way of amendment or repeal, a prior expression of the legislative will as expressed by Congress.

In but one instance has Congress assumed to declare a treaty void, when in 1798 it resolved that "the United States are of right freed and exonerated from the stipulations of the treaties [with France] and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the United States." Mr. Crandall states that in the United States some doubt has existed as to what body is authorized to give notice of the abrogation of treaties. "So far as a treaty is a mere compact between nations, or so far as it operates ipso facto as a law of the land, it would seem that the President should have the power, with the concurrence of two-thirds of the Senate, to give notice of its termination. There is no doubt that he may in the same way replace it with another treaty." Mr. Butler says that Congress by act or resolution can abrogate a treaty and thereby render futile the treaty-making power as exercised by the constitutional authorities. Reviewing the precedents, Professor Corwin concludes that some limited power of treaty abrogation is necessarily attributable to the President. Confusion seems to have arisen because of the loose way in which the word "abrogation" is used. The abrogation of a treaty is an act which is international in character, and where, as is almost universal in modern commercial treaties, notwithstanding Mr. Colby's statement, the termination of a treaty may be accomplished by notice given, abrogation is, or may be, a unilateral act. Even so, it is still international and can be accomplished only by that instrumentality of the state which is charged with maintaining relations, or of sustaining official international contacts. That the only instrumentality for maintaining international contacts under our system is the President, through the Department of State, has been accepted from the beginning.

The treaties with France which Congress declared no longer binding upon the government or citizens of the United States were in terms perpetual and contained no provisions for termination by notice. No act of an international character by President Adams seemed to be necessary in order to abrogate the treaties which Congress declared void. Indeed, there were those who held that the act was tantamount, or at least in connection with various doings of France,

2 See Crandall, Treaties, Their Making and Enforcement, 2nd edition, 458-462; Butler, The Treaty-Making Power, 311, 384; Corwin, The President's Control of Foreign Relations, 109-116; Moore, International Law Digest, V, 771.

3 Crandall, 461.

4 Butler, 311.