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tion. Although it is not necessary, I am willing to accept the assumption that some kind of a council would be appointed by the powers to make the announcements when the time had come for the use of economic and military forces against the recalcitrant member. Does that take
Does that take away from Congress the power to declare war? It does not. If the war is a foreign war, it could not be begun under the Constitution until Congress had declared war. The President would not be authorized to direct the Army and the Navy to begin war until Congress had declared it.
What, then, would be the situation if the fact were announced upon which the obligation of the United States to make war arose under this treaty? It would be to make war by Constitutional means, that is, by the preliminary declaration of Congress that war existed. Congress might decline to exercise that power and refuse to declare war. What would be the effect of that? It would merely be a breach of faith on the part of Congress, and so a breach of faith on the part of the United States and we would not go to war.
The treaty-making power under the Constitution creates the obligation to declare war in certain contingencies. That obligation is to be discharged by Congress under its Constitutional power to declare war. If it fails to do so, and thus comply with the binding obligation created by the treaty-making power, then it merely breaks the contract of the Government. It is left to Congress to carry out that which we in a Constitutional way have agreed to do. Thus to impose in a Constitutional way by treaty an obligation on Congress is not to take away its power to discharge it or to refuse to discharge it.
In 1904 we entered into a treaty with the Republic of Panama, the first article of which is:
The United States guarantees and will maintain the independence of the Republic of Panama.”
What is the necessary effect of this guaranty? It necessarily means that if any nation attacks Panama and attempts to take territory from her or to subvert her Government, the United States is under treaty obligation to make war to defend Panama. Was it ever supposed that such an obligation took away from Congress the power to declare war? This treaty obligation makes it the duty of the Government to declare war under certain conditions that may arise, creates a contract obligation to the Republic of Panama that it shall do so, and this duty can only be discharged through the action of Congress in declaring war. Does that deprive Congress of its Constitutional power to declare war? It seems to me the question answers itself.
In our relations with Cuba we find in the present treaty:
“The Government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgment in or control over any portion of said Island.”
"The Government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property and individual liberty, and for discharging the obligation with respect to Cuba imposed by the Treaty of Paris on the United States now to be assumed and undertaken by the Government of Cuba."
“To enable the United States to maintain the independence of
Cuba, and to protect the people thereof, as well as for its own defense, the Government of Cuba will sell or lease to the United States, lands necessary for coaling or naval stations at certain specific points to be agreed upon with the President of the United States."
It is quite clear from these three articles that the Government of the United States binds itself to maintain the independence of Cuba and to exclude other governments from lodgment in the Island. If any Government attempts to filch territory from Cuba or to subvert the government, it becomes the duty of the United States to make war and defend against such invasion. Does this treaty obligation thus created take away from Congress the power to declare war? It only creates the obligation on the part of the United States to wage war, and in discharging this obligation Congress must act, or the Government must be recreant to its agreement.
Thus, by reason and precedent, it would appear clear that this third plank of the platform of the League is not in any way an attempt to take from Congress the power which it has to declare war under the Constitution. The suggestion that in order to carry out such an obligation on the part of the United States, it would be necessary to amend the Constitution, grows out of a confusion of ideas and a failure to analyze the differences between the creation of an obligation of the United States to do a thing and the due, orderly and Constitutional course to be taken by it in doing that which it has agreed to do.
A CONSTRUCTIVE PLAN FOR HUMAN
What is International Law? It is the body of rules governing the conduct of the nations of the world toward one another, acquiesced in by all nations. It lacks scope and definiteness. It is found in writings of international jurists, in treaties, in the results of arbitration, and in the decisions of those municipal courts which apply international law, like the Supreme Court of the United States and courts that sit in prize cases to determine the rules of international law governing the capture of vessels in naval warfare. It is obvious that a Congress of the League with quasi-legislative powers could greatly add to the efficacy of international law by enlarging its application and codifying its rules. It would be greatly in the interest of the world and of world peace to give to such a code of rules the express sanction of the family of nations.
As to the submission of all questions at issue of a legal nature to a permanent international court, it is sufficient to point out that the proposal is practical and is justified by precedent. The Supreme Court of the Unted States., exercising the jurisdiction conferred on it by the Constitution, sits as a permanent international tribunal to decide issues between the States of the Union. The law governing the settlement of most of the controversies between the States cannot be determined by reference to the Constitution, to statutes of Congress, or to the legislation of the States. Should Congress in such cases attempt to enact laws they would be invalid. The only law which applies is that which
1 Address delivered before the National Educational Association, New York City, July 3, 1916.
applies between independent governments, to wit: International Law. Take the case of Kansas against Colorado, heard and decided by the Supreme Court. Kansas complained that Colorado was using more of the water of the Arkansas River which flowed through Colorado into Kansas than was equitable for purposes of irrigation. The case was heard by the Supreme Court and decided, not by a law of Congress, not by the law of Kansas, not by the law of Colorado, for the law of neither applied. It was decided by principles of International Law.
Many other instances of similar decisions by the Supreme Court could be cited. But it is said that such a precedent lacks force here because the States are restrained from going to war with each other by the power of the National Government. Admitting that this qualifies the precedent to some extent, we need go no further than Canada to find a complete analogy and a full precedent. There is now sitting to decide questions of boundary waters (exactly such questions as were considered in Kansas and Colorado) a permanent court, consisting of three Americans and three Canadians, to settle the principles of international law that apply to the use of rivers constituting a boundary between the two countries and of rivers crossing the boundary. The fact is, that we have gotten so into the habit of arbitration with Canada that no reasonable person expects that any issue arising between us and that country, after a hundred years of peace, will be settled other than by arbitration.
If this be the case between ourselves and Canada and England, why may it not be practical with every wellestablished and ordered government of the Great Powers? The Second Hague Conference, attended by all nations, recommended the establishment of a permanent International