105. Observance of International Law by the Courts.

Judicial action may give grounds for international complaint in case justice is denied to aliens by the courts in civil or criminal trials and in case international law or treaty are not applied in cases affecting aliens or foreign governments.18 The guarantees of "due process of law" to all persons in the United States by the Vth and XIVth amendments are applicable respectively against the national and state governments, and in both federal and state courts. gether with other more specific constitutional guarantees relating especially to criminal trials, they seem to assure aliens a procedure and an absence of unreasonable discrimination in the law applied, sufficient to prevent a "denial of justice" as understood in international law.

To

However, the alien may feel greater confidence in federal than in state courts because of the decreased chance of local prejudice. Under present statutes he is entitled to bring action against citizens in civil cases in the federal district court if over $3,000 is in controversy or if "for tort, only in violation of the laws of nations or of a treaty of the United States." 49 Ambassadors and consuls of foreign governments are entitled to bring suits originally in the Supreme Court, though they may also sue in the state courts. They may be sued, however, only in the federal courts, and diplomatic officers only in the Supreme Court and then only so far as the law of nations permits.50

Any alien not resident in the state may have an action brought against him in a state court, removed to a federal district court if it is of a type which might have originated in that court. If "from prejudice or local influence he will not be able to obtain justice" in the state court, he may have any suit removed. Any alien may also have the case removed:

51

"In any civil suit or criminal prosecution commenced in any State court for any cause whatsoever," if he "is denied or can not enforce in the judicial tribunals of the State, or in the part of the State where such suit

48 Borchard, op. cit., p. 335.

49 Judicial code of 1911, sec. 24, pars. 1, 17, 36 Stat. 1091, 1093.

50 Ibid., sec. 24, par. 18, sec. 233; sec. 256, par. E.

51 Ibid., sec. 28.

or prosecution is pending, any right secured to him by any law providing for the equal civil rights. . . of all persons within the jurisdiction of the United States." 52

Finally, any person who can show a federal court under habeas corpus that he is entitled to immunity under international law or treaty may be released from the state court."

53

106. Courts Apply International Law and Treaties as Part of the Law of the Land.

The courts regard international law as part of the law of the land and apply it in suitable cases.

"International law," said Justice Gray, "is a part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who, by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such words are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." 54

55 in

57

This principle has been applied in admiralty and prize cases; cases involving the immunities of sovereigns, diplomatic officers, public vessels, military persons, consuls, etc.; 56 in cases involving the limits of jurisdiction, especially in boundary rivers, bays, etc.; in cases involving the status of aliens and especially alien enemies; in cases involving the rights of persons in newly acquired territory; 5o and in cases involving the privileges and responsibilities of

52 Ibid., sec. 31.

53 Supra, note I.

58

54 The Paquette Habana, 175 U. S. 677. See also Willoughby, op cit., 1014-1018.

55 Ibid., and also The Nereide, 9 Cranch 388.

56 The Exchange v. McFaddon, 7 Cranch 116; Underhill v. Hernandez,

168 U. S. 250.

57 The Appollon, 9 Wheat. 362.

58 McVeigh v. U. S., 11 Wall. 259, 1870; Watts v. Unione Austriaca de Navigazione, 248 U. S. 9 (1918).

59 U. S. v. Percheman, 7 Pet. 51, 51; Villas v. City of Manila, 220 U. S. 345, 1911.

60

neutrality, war and insurgency. Under the terms of Article VI of the Constitution treaties are the supreme law of the land and after proclamation are applicable by all courts, state and federal.

107. This Principle not Applicable to Political Questions.

63

The principle, however, that courts apply international law and treaty in appropriate cases is subject to certain modifications. Thus if the controversy involves "a political question" the courts hold that they must follow the decision of the political organs, irrespective of international law and treaty.61 But no definite line. has ever been drawn between principles of international law and treaty provisions which are of a political character and those which are of a legal character. In such matters as the annexation or cession of territory,2 the recognition of insurgency, belligerency, new governments,65 new states, the termination of treaties,67 and of war, the courts ordinarily follow the decisions of the political organs. Sometimes, however, no definite decision has been given by those organs. In such cases, the courts, holding that they "have no more right to decline the jurisdiction which is given than to usurp that which is not given," 69 have investigated facts and 60 The Santissima Trinidad, 7 Wheat. 283; The Three Friends, 166 U. S. 1; The Appam, 37 Sup. Ct. 337.

64

68

66

61 Crandall, op. cit., 364–370; Willoughby, op. cit., 999–1011; Moore, Digest, I: 245, 744.

62 Jones v. U. S., 137 U. S. 202, 212-213, 1890; Williams v. Suffolk Insurance Co., 13 Pet. 415; Foster v. Neilson, 2 Pet. 253; In re Cooper, 138 U. S. 404; U. S. v. Reynes, 9 How. 127.

63 The Three Friends, 116 U. S. 1, 63, 1897; Kennett v. Chambers, 14 How. 38.

64 U. S. v. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat. 52; The Santissima Trinidad, 7 Wheat. 283; The Prize Cases, 2 Black 735.

65 The Sapphire, 11 Wall. 164, 1870, Oetjen v. Central Leather Co., 246 U. S. 297, 1917, Ricaud v. American Metal Co., 246 U. S. 304, 1917. The recognition of a particular person as diplomatic representative of a foreign government is also a political question, Ex parte Baiz, 135 U. S. 403.

66 The Nereide, 9 Cranch 388, 1815; Cherokee Nation v. Georgia, 5 Pet. 1; Neeley v. Henkel, 180 U. S. 109, 1901.

67 Doe v. Braden, 16 How. 635; Terlinden v. Ames, 184 U. S. 270; Willoughby, op. cit., 1007, infra, sec. 182.

68 The Protector, 12 Wall. 700, 1871.

69 In re Cooper, 143 U. S. 472, 502-505, 1892; Moore, Digest, I: 744, infra,

sec. 247.

international law giving a decision thereon, always attempting, but. sometimes without complete success, to avoid decision on questions of policy. Thus the Supreme Court decided upon the status of Pine Island near Cuba and upon the status of Cuban insurgents in 1896 on the basis of international law, generally known facts and various rather indefinite statements in executive proclamations and correspondence.70 Very often international law is utilized by the courts to buttress opinions founded primarily on decisions by the political organs of government. Thus the Supreme Court not only held that the United States had taken possession of the island of Navassa by executive proclamation under an act of Congress but that under international law it was entitled to do so on the principle of discovery and occupation." Where international questions, even if of political significance, are susceptible of exact determination by application of international law the courts do not hesitate to settle them. Prize cases are of this kind, so also are cases involving the immunities of sovereigns, diplomatic officers and public vessels.72

It seems that far from encroaching upon powers of the political departments of government the courts have if anything been overcautious. It would seem that a decision founded squarely upon international law might well have been given in the first Behring Sea cases, and had such been done the United States might have avoided the expense of a protracted litigation and arbitration where from the first there was no reasonable legal defense. An act of 1868 had forbidden the killing of "otter, mink, marten, or furseal, or other fur-bearing animal, within the limits of Alaska territory, or in the waters thereof." The Treasury Department in enforcing this provision acted upon a claim asserted by Russia in 1821 to 70 Pearcy v. Stranahan, 205 U. S. 257 (1907); The Three Friends, 116 U. S. I.

71 Jones v. U. S., 137 U. S. 202, 212. The British court of Queens Bench (Mighell v. Sultan of Jhore, 1894, 1 Q. B. 149, 158), however, thought the opinion of the appropriate political department incapable of examination and questioned the course pursued by Sir Robert Phillimore in the Charkieh (L. R. 4 A. and E., 59, 1873), in examining the history of Egypt since A. D. 638 to determine its status. See A. D. McNair, Judicial Recognition of States and Governments, British Year Book of International Law, 2: 57, 66.

72 Supra, sec. 106.

73 Act June 17, 1868, Rev. Stat., sec. 1856.

74

a jurisdiction beyond the three-mile limit in Behring Sea, but when the question of definition came before Congress a bill definitely approving the extended jurisdiction was not passed, the act of 1889 merely asserting that the earlier statute should "include and apply to all the dominions of the United States in the waters of Behring Sea," thus leaving open the question of the extent of these waters. The district court in Alaska, however, affirmed by the Supreme Court, held that the political departments had decided for the wider jurisdiction and that Canadian vessels captured while seal fishing sixty miles from shore were liable. It would seem that under the circumstances, the courts might well have held the statutes to imply an invitation for judicial decision based on international law. After the arbitration of 1893 had declared unequivocally for the three-mile limit, the Circuit Court of Appeals held that the act of 1889 must be interpreted accordingly."

76

108. This Principle not Applicable to Cases Covered by Written Law.

Apart from political questions courts are bound by plain terms of the Constitution, by treaties, by acts of Congress, and by executive orders under authority thereof, in spite of principles of international law and earlier treaties. They, however, attempt to interpret such documents in accord with international law, frequently with success, and they refuse to apply state constitutions and statutes in conflict with treaty.79

In general the courts do apply international law and treaty, and because of the opportunity for a careful consideration of the sources and reason of that law which their deliberate methods afford, they assure the application of international law in cases not covered by 74 Moore, Int. Arb., p. 769.

75 Act March 2, 1889, 25 Stat. 1099; Moore, Int. Arb., p. 765.

76 U. S. v. La Ninfa, 49 Fed. 575, 1891; In re Cooper, 143 U. S. 472, 502-505.

77 U. S. v. La Ninfa, 75 Fed. 513. As a result of the arbitration the United States paid Great Britain $473,151.26 as indemnity for the seizures. See Moore, Digest, 1: 890-929, and Int. Arb., pp. 765-960.

78 Murray v. The Charming Betsey, 2 Cranch 64, and see Wright, Conflicts of International Law with National Laws and Ordinances, Am. JI. Int. Law, 11: 1 et seq. (Jan., 1917).

79 Ware v. Hylton, 3 Dall. 199, and supra, note 3.