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modifications of the general law of nations with respect to the parties, and are only valid when expressly accepted through ratification by the proper constitutional process. But when consent has been given whether tacitly or expressly, foreign nations can hold the United States bound for the future.

34. Decisions by the President.

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We have noticed that international law requires that every independent government maintain a representative organ able to discuss with and give satisfaction to foreign nations for demands. based on international law and treaty. We have seen that foreign nations have recognized the President acting through the Department of State as the representative organ of the United States.* It follows that, with respect to the meeting of international responsibilities, foreign nations are entitled to accept the President's opinion as the authoritative voice of the United States. Thus if the President admits that international law or treaty requires the paythere is or not a national common law in other respects, this universal common law can never cease to be the rule of executive and judicial proceedings until mankind shall return to the savage state." The Supreme Court said in Ware v. Hylton, through Wilson, J.: "When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement." (3 Dall. 199, 281, 1796.) So also Secretary of State Webster: "Every nation, on being received, at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws and usages which have obtained currency among civilized states and which have for their object the mitigation of the miseries of war." (Letter to Mr. Thompson, Minister to Mexico, April 15, 1842, Moore, Digest, 1: 5.) Willoughby calls attention to the evidence that the United States actually has accepted general international law: "The federal constitution provides that Congress shall have the power to define and punish offenses against the law of nations, and to make rules concerning captures on land and water. Furthermore, it is declared that treaties made under the authority of the United States shall be the supreme law of the land. The effect of these clauses which recognize the existence of a body of international laws and the granting to Congress of the power to punish offenses against them, the courts have repeatedly held is to adopt these laws into our municipal law en bloc except where Congress or the treatymaking power has expressly changed them." (Op. cit., p. 1018.)

65 Supra, sec. II.

66 Supra, sec. 12.

ment of a sum of money, the cession of territory, the dispatch of military forces, the delivery of a fugitive, or the release of an alien held in custody, the foreign nation can hold the United States. bound to perform such an act, even though Congress, or the states or whatever other organ may be endowed with the necessary legal power to act has not been consulted.

In practice foreign nations have acted on this theory. Where the President has given an opinion against the contention of a foreign nation, that nation may of course continue discussion until a decision has been reached satisfactory to it or authorized by an arbitration court or other body by whose decision it has agreed to be bound. Where, however, the President has acknowledged the justice of a foreign claim, the foreign nation has held the United States bound. Thus in the McLeod case, the Italian lynching cases and the Panama Canal tolls controversy the ultimate acknowledgment by the President of an obligation to return McLeod," to pay damages and to charge equal tolls upon American vessels using the Canal made the cases res adjudicata.

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In many cases it would doubtless be expedient, in some it is required by constitutional law,70 and in others it is required by constitutional understanding," that the President assure himself of the needed cooperation of other departments before interpreting an international responsibility or acknowledging a specific obligation flowing therefrom, but the foreign nation is not obliged to concern itself with such questions. It is entitled to present all international claims to the President and to hold his voice as the voice of the nation with respect to their settlement.

35. Decisions by Subordinates to the President.

This is true of agents acting under authority of the President unless their action is promptly repudiated by the President. Thus 67 Moore, Digest, 6: 261.

68 Moore, Digest, 6: 839, 849.

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69"In my own judgment, very fully considered and maturely formed, that exemption . . . is in plain contravention of the treaty with Great Britain concerning the canal, concluded on November 18, 1901." (President Wilson, Message to Congress, March 5, 1914, Cong. Rec., 51: 4313.)

70 Infra, secs. 143-145.

71 Infra, sec. 251.

if a representative of the President should sit in the Council of the League of Nations and admit that a guarantee undertaken by treaty by the United States required the use of armed forces in a specific manner under existing circumstances, the United States. would be bound to carry out the treaty in that precise manner.72 The proposed Hitchcock reservation to Article X of the Covenant, while not impairing the obligation of the United States to fulfiil the guarantee, transferred the representative powers of the President to Congress in this respect, by indicating that the representative on the Council was not competent to acknowledge an obligation owed by the United States and expressly stating that Congress remained free to interpret the obligation according to its own "conscience and judgment."73 The same result could of course be obtained by transferring control of the American representative in the Council to the Congress, but this, as proved by the experience of congressional control of diplomats during the revolutionary period, would hardly be expedient.74

72 This interpretation of the Covenant is contained in the Swiss official commentary. "The Council may formulate obligatory advice unanimously only and solely for its own members and for other states invited in the specific instance to be represented on the Council, Art. 4, par. 5." This implies that for states whose representatives have consented, the advice is obligatory. See the League of Nations, published by the World Peace Foundation, III, No. 3, p. 125.

73 Article X reads: "The members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression the Council shall advise upon the means by which this obligation shall be fulfilled." The proposed Hitchcock reservation reads: "That the advice, mentioned in Article X of the Covenant of the League, which the Council may give to the member nations as to the employment of their naval and military forces, is merely advice, which each member nation is free to accept or reject, according to the conscience and judgment of its then existing government, and in the United States this advice can be accepted only by action of the Congress at the time, it being Congress alone, under the Constitution of the United States, having the power to declare war." The proposed Lodge reservation to Article X did not affect merely the authority to interpret Article X, but under it the United States refused to accept the guarantee of Article X altogether. For text of these reservations and notes upon the votes received in the Senate, see The League of Nations, III, No. 4 (August, 1920).

74 See Hamilton, The Federalist, No. 22, Ford ed., p. 141; and Fish, American Diplomacy, N. Y., 1916, pp. 60, 77; 'The experience of the

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36. Decisions by International Organs Authorized by the President. The same binding obligation flows from the decisions of international courts of justice or arbitration acting on cases submitted by the President. As the President can himself interpret the obligations of the United States, or do so through agents in conference with the representatives of other nations, so he can do so through submission to an international court. It is true that under the contitution, such submissions must, if involving national claims or claims against the United States, be by general or special treaty to which the Senate has consented,75 but since the function of a court of arbitration is to decide on obligations and not to make agreements, the foreign nation is not obliged to take cognizance of such constitutional provisions. It can hold the arbitrated case res adjudicata even though the President exceeded his powers in submitting it.76

37. Meeting Responsibilities Distinguished from Making Agree

ments.

It will be observed that while foreign nations are entitled to accept the President's statements absolutely with respect to meeting international responsibilities, it can only accept them presumptively with respect to making international agreements. It is, therefore, important to distinguish between these two acts. Usually the line is clear enough. In the case of treaties, steps up to and including the exchange of ratifications are making the treaty steps afterward are meeting the responsibility. Thus the Senate has a part in the making of treaties as it must give its advice and consent before ratification. The House of Representatives, however, is concerned Continental Congress was most useful to the country. . . . It had made it clear that a most serious defect was in the absence of an executive, clothed with sufficient power and dignity to properly conduct intercourse with foreign sovereigns. . . . An attempt had been made to supply these wants by the creation of various committees or boards. . . . The experience of the confederation with its various boards was most unsatisfactory and sometimes pathetic." Foster, Century of Am. Diplomacy, N. Y., 1901, pp. 103-104. 75 Infra, sec. 148.

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76" Recourse to arbitration implies an engagement to submit in good faith to the award." I Hague Conventions, 1907, act. 37. See also infra, sec. 62.

only with meeting responsibilities under them as pointed out by President Washington in the controversy over the Jay treaty." One hundred and twenty-five years later Former Secretary of State Root explained the same point.78

"The making of a treaty . . . is a solemn assurance to all the nations that (the subject matter) is within the treaty making power and that the promise to make war binds Congress as fully as it binds all other members of our government to maintain the plighted faith of the United States. In all governments the power to declare war rests somewhere, and an agreement to make war is an agreement that that power shall be so exercised by the officers in whom it rests. A refusal of Congress to pass the necessary resolution would simply be a breach of the treaty."

Consequently though failure of the Senate to consent can be offered to foreign nations as a valid excuse for non-ratification," failure of the House of Representatives to pass an appropriation, declare war or take other measures necessary to give effect to a ratified treaty can not be offered as an excuse for avoiding the responsibility.80

"If a treaty," says Dana, "requires the payment of money, or any other special act, which cannot be done without legislation, the treaty is still binding on the nation; and it is the duty of the nation to pass the necessary laws. If that duty is not performed, the result is a breach of the treaty by the nation, just as much as if the breach had been an affirmative act by any other department of the government. Each nation is responsible for the right working of the internal system, by which it distributes its sovereign functions; and, as foreign nations dealing with it cannot be permitted to interfere with or control these, so they are not to be affected or concluded by them to their own injury."

38. Interpretation of Treaties.

But what of the interpretation of a treaty? Is interpretation. a step in the making, or in the execution of the treaty? Interpre77 Message to House of Rep., March 30, 1796. Richardson, Messages, 1: 195, Moore, Digest, 5: 225.

78 Telegram to Governor Cox, October 21, 1920. See also Hamilton, Pacificus Paper, quoted Corwin, The President's Control of Foreign Relations, p. 14; Taft, op. cit., p. 115.

79 Supra, secs. 24-26.

80 Dana, note to Wheaton, Int. Law, sec. 543, p. 715. See also Willoughby, op. cit., p. 515; Moore, Digest, 5: 230. "A treaty though complete in itself, and the unquestioned law of the land, may be inexecutable without the aid of an act of Congress. But it is the constitutional duty of Congress to pass the requisite laws. But the need of further legislation, however, does not affect the question of the legal force of the treaty per se." Cushing, Att. Gen., 6 Op. 291, 1854; Moore, Digest, 5: 226, 370.

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