have originated in a constitutional exercise of power by some organ of the national government, either through positive action or tacit recognition. Thus responsibilities founded on treaty originate in a valid act of the treaty power, responsibilities founded on arbitral decisions originate either in a valid act of the treaty power or of the President, responsibilities founded on general international law originate in the tacit acceptance of that law by the terms of the Constitution29 and by the President in continuing membership in the family of nations, as evidenced through the continued exchange of diplomatic officers.30 In providing for carrying these powers into execution, therefore, Congress would be providing for meeting the international responsibilities they created. Thus if the President or the Courts are unable properly to meet any international responsibility it is not from a defect in the Constitution, but from failure of Congress fully to exercise its powers under the "necessary and proper" clause. Congress has in fact enacted many laws whose purpose is the enforcement of international law and treaty. It has never failed to make an appropriation when called for by treaty. and has often made appropriations to satisfy claims based on international law as determined by diplomatic correspondence or arbitration.32 31 96. Power to Meet International Responsibilities by Treaty. An international responsibility may occasionally require conclusion of a treaty. Suffice it to say that the President, acting with advice and consent of two-thirds of the senate, is authorized to make treaties on all subjects suitable for international agreement. 29 Willoughby, op. cit., p. 1018, and Am. Jl. Int. Law, 2: 357. 31 Infra, secs. 112–118. 32 Infra, sec. 149. 33 Infra, sec. 173. 33 CHAPTER XI. THE POWER TO MEET INTERNATIONAL RESPONSIBILITIES THROUGH THE OBSERVANCE OF INTERNATIONAL LAW. 97. Conditions Favoring the Observance of International Law. The responsibility of the nation for acts of government organs imposes a duty upon every organ to abstain from action in violation of international law or treaty. This responsibility will be met if every independent organ of government is careful to exercise its discretionary power in accordance with this duty, consequently there can be no question of the power of the government to meet this responsibility. Is it probable that independent organs will recognize international law, rather than national policy, as a proper guide in the exercise of their powers? No organ is in fact wholly independent. The government is a complex organization, the action of each organ being to a certain extent influenced by that of others. We may, therefore, investigate the conditions which tend to assure the observance of international law and treaty by the various organs of government in the present state of public law. 98. Observance of International Law by the States. A state constitution or legislative provision in violation of customary international law is valid unless in conflict with a Federal constitutional provision or an act of Congress as would usually be the case. However, it appeared in 1842 that the criminal laws of New York made no exception in favor of persons entitled to immunity under international law and the United States had no means of relieving Alexander McLeod from the operation of those laws, although the Secretary of State admitted the responsibility to do so under international law. Congress has power to pass legislation assuring respect for international law by the states and such legislation was passed soon after this incident.1 If a state law disregards a treaty it is void. The courts both federal and state are obliged to apply treaties "anything in the Constitution or Laws of any State to the Contrary notwithstanding." Thus state confiscation acts were held 1Act of Aug. 29, 1842, Rev. Stat., sec. 753. See Moore, Digest, 2: 24–30. 2 U. S. Constitution, Art. VI, sec. 2. 2 void as in violation of the treaty of peace with Great Britain of 1783 and many other state statutes discriminating against aliens have been similarly invalidated.3 99. Observance of International Law by the Constitution. If the Constitution proves in any respect in violation of international law there is no recourse except to the amending process, but in view of the generality of its provisions, a conflict, incapable of reconciliation by interpretation, is not likely to occur. The courts have held that they must interpret the Constitution in accord with international law if possible and thus have protected the immunities of diplomatic officers against the constitutional clause guaranteeing the accused a right "to have compulsory process for obtaining witnesses in his favor." The 18th amendment will probably be held to permit the customary exemption from search of the baggage of diplomatic officers. 100. Observance of International Law by Congress. The observance of international law and treaty by Congress depends upon the discretion of that body. An act of Congress if constitutional is valid within the United States even though in direct violation of international law or treaty as was illustrated by the Chinese exclusion act of 1888. In spite of the protests of China, the act remained in effect. The "It must be conceded," said the Supreme Court, "that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement. . . . The question whether our government was justified in disregarding its engagements with another nation is not one for the determination of the courts. . . . The court is not the censor of the morals of the other departments of the Government." 5 3 Ware v. Hylton, 3 Dall. 199. On this case see Crandall, op. cit., pp. 154-160. H. St. George Tucker, Limitations of the Treaty Making Power, Boston, 1915, has been led by what J. B. Moore calls an apprehensive" interpretation of the Constitution (Pol. Sci. Quar., 32: 320) to take a novel view of this case. Crandall, loc. cit., effectively deals with this interpretation. See also infra, sec. 50. 4 See cases of Dubois and Comancho, Moore, Digest, 4: 643-645; Wright, Am. Jl. Int. Law, II: 5; and supra, sec. 45. 5 Chinese Exclusion Cases, 130 U. S. 581 (1889). same was true of the act of Congress exempting American vessels from tolls in the use of the Panama Canal. Great Britain considered the act in disregard of the Hay-Pauncefote treaty but it remained effective until repealed by Congress itself, at the solicitation of President Wilson whose judgment "very fully considered and maturely formed" found it "in plain contravention of the treaty." Congress has sometimes made express exception from the operation of statutes out of deference to international law. Thus, the various acts describing rules of navigation "shall not be construed as applying to ships of war or to government ships." The selective draft act of 1917 as amended August 31, 1918, exempted foreign consular and diplomatic officers from registration and resident aliens except declarants of co-belligerent nationality from service. The Supreme Court is given only such jurisdiction of cases against foreign diplomatic officers "as a court of law can have consistently with the law of nations." An act of 1790 expressly exempts resident "public ministers," their "domestics and domestic servants" and their "goods and chattels " from all legal process,1o and an act of 1888 excepts "the ownership of legations, or the ownership of residences by representatives of foreign governments or attachés, thereof" from the general law prohibiting alien landholding in the District of Columbia." Frequently Congress has shown respect for treaties by excepting persons entitled to treaty privileges from the operation of statutes or by making the operation of the statute dependent upon denunciation of the treaty according to its own terms. Thus certain provisions of the La Follette seaman's act were to remain in abeyance until conflicting treaties should be properly ter • Message, March 5, 1914, Cong. Rec., 51: 4313. 7 Act Aug. 1, 1912, sec. 5, 37 Stat. 242, Comp. Stat., sec. 7994. 8 Acts July 9, 1918, and Aug. 31, 1918, amending act May 18, 1917, secs. 4, 5, Comp. Stat., sec. 2044b, e. Rev. Stat., 687, Judicial Code of 1911, sec. 233, 36 Stat., 1156, Comp. Stat., sec. 1210. 10 Rev. Stat., 4063, Comp. Stat., 7611. 11 Act March 9, 1888, 25 Stat. 45, Comp. Stat., sec. 3501. minated 12 and acts of Congress for the restoration of captured prizes,13 for the imposition of discriminatory tariffs or import prohibitions1 and for levying tonnage duties15 and for prohibiting alien landholding in the territories and the District of Columbia10 were not to apply in conflict with existing treaties. 101. Checks upon Congressional Disregard of International Law. Although disregard of international law and treaty by Congress is prevented primarily by that body's own sense of international responsibility, the Constitution does provide certain checks against such disregard. The treaty-making power may conclude a treaty or provide for an arbitration either of which would supersede an earlier act of Congress. Thus the act of Congress of 1889 as judicially interpreted extended American jurisdiction in Behring Sea, one hundred Italian miles from shore, in disregard of the principle of international law limiting maritime jurisdiction to the marine league. This act was held to be superseded by the arbitration based on a treaty with Great Britain of 1892.17 The President's veto has proved a check upon congressional dis.regard of international responsibilities. Since the President feels the pressure of foreign nations he is likely to be more sensitive to violations of international law than the houses of Congress. Thus President Hayes vetoed the first Chinese exclusion bill as in violation of the Burlingame treaty of 1868. After explaining some constitutional objections to the act he referred to the "more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given," and concluded "in asking the renewed attention of Congress to this bill, I am persuadad that their action will maintain the public 12 Act March 4, 1915, 38 Stat. 1184, secs. 16, 17; Comp. Stat., sec. 8382a, b. 13 Rev. Stat., sec. 4652; Comp. Stat., sec. 8426. 14 Underwood tariff, Oct. 3, 1913, sec. IV, j, sub. secs. 1, 2, 7; 38 Stat. 195, 196; Comp. Stat., 5305, 5306, 5311. According to sec. IV, b, 38 Stat. 192, the Cuban reciprocity treaty of 1902 was unaffected by the tariff. 15 Rev. Stat., sec. 4227; Comp. Stat., sec. 7820. 16 Act March 3, 1887, 24 Stat. 476, March 2, 1897, 29 Stat. 618, Comp. Stat., secs. 3490, 3498. 17 La Ninfa, 75 Fed. 513, 1896. |