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Italian outrages.72 It seems that there is adequate constitutional basis for such legislation, both in the implied power of the national government to enforce treaties which it may constitutionally conclude, and in the power to define and punish offenses against the law of nations. W. W. Willoughby has said in this connection, "There would seem to be no valid constitutional objection to an act of congress giving to the federal courts cognizance of all offenses for which the United States may according to the law of nations be held responsible to foreign powers."'73
INFRACTION OF TREATIES
(1) Treaties may be declaratory of international law, in which case the contracting states have no more rights and no more duties than they would have under international law. They may be amendatory of international law, such as general international conventions, in which case, after ratification, their provisions are international law and the contracting states are under new duties according to them. Or they may create exceptions to the general rule of international law, being in nature similar to contracts. In some such treaties the national obligations are made greater than under international law, as in treaties guaranteeing special protection to aliens or special protection to territory such as Panama and Cuba. In other cases the national duties are made less than they would be under international law. The protocols with Mexico relating to Indian marauders and the capitulations of Turkey and other non-Christian countries reduce the usual obligations of abstaining from exercising force and jurisdiction in foreign territory, although they add new obligations incidental to the exercise of these privileges.
Treaty stipulations are considered in this thesis in connection with the rules of international law to which they relate, the general view being taken that treaties when duly ratified are expropria vigore municipal law, and whichever one of these classes they fall into they will be enforced as such by United States courts or executive officials.
72 Pres. Harrison's Message, Dec. 9, 1891, For. Rel. 1891, v; Moore's Digest, 6;840; Pres. McKinley's Message, Dec. 5, 1899, For. Rel. 1899, xxii, Moore's Digest, 6;846; Dec. 3, 1900, For. Rel., 1900, xxii. Moore's Digest, 6;874.
73W. W. Willoughby, The Am. Const. System, N. Y., 1904, p. 108. See also U. S. vs. Arjona, 120 U. S., 479, (1887), on the subject, also E. S. Corwin, National Supremacy, N. Y. 1913.
At this point the subject matter of treaties will not be considered, but rather the general method of treaty enforcementthe measures which the United States has taken to prevent the infraction of treaties.
(2) The most important provision of this character is found in the constitution of the United States, which declares that, “this constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or law of any state to the contrary notwithstanding."74
What agreements are treaties in the meaning of this provision is a question of municipal law. The constitution requires that two-thirds of the senate concur with the president in making treaties;75 it therefore seems that executive agreements, of which a considerable number have been concluded by the president alone,76 would not be “the supreme law of the land" in this sense. There is undoubtedly a limit to the scope of the treaty power, from the constitutional division of power between state and national government, but where the line is to be drawn has not been defined. It certainly appears to extend beyond the legislative power of congress." Ratification and proclamation also ap
. pear to be necessary before a treaty is valid in the sense of the constitution.78 Even when these conditions are complied with and from a technical standpoint the treaty is clearly within the terms of the constitutional provision there are important limitations to its full effect as municipal law in the sense of that term as adopted in this thesis.
In this connection the dual character of the obligation imposed by treaties must be borne in mind. A treaty primarily creates obligations between states. The recognized representative of the state, that is its government, may alone be held responsible for the infraction of treaties so far as the other contracting parties are concerned. This is the only function of treaties in many countries including Great Britain. It is for the political department of the government to decide upon and enact appropriate measures for putting them into effect. Private rights under municipal law are not affected until such action is taken.79
74 Constitution, art. 2, sec. 2, cl. 2. 75Constitution, art. 2, sec. 2, cl. 2. 76 See Moore's Digest, 5;210-218.
77 Chirac vs. Chirac, 2 Wheat. 259, 276, (1817); Geofroy vs. Riggs, 133 U. S. 258; Hauenstein vs. Lynham, 100 U. S. 483. Contra Prevost vs. Greneaux, 19 How. I; Moore's Digest, 5;166; 175-179.
78See Moore's Digest, 5;202-210.
In the United States, however, aside from this primary obligation imposed upon the government, treaties often impose obligations immediately upon individuals. The constitution has declared, in order to provide for the performance of the duty by the government, that treaties are law and immediately effective in altering private rights and liabilities, and the courts must take cognizance of them in that capacity. Thus in England if the government wishes to escape liability for infractions of treaties stipulating a change in private rights it must always pass statutes providing for their enforcement. In the United States this burden is shifted from congress by the constitutional provision, although in some cases additional legislation may be necessary, especially where an appropriation of money is required to make the treaty effective.
(3) This secondary function of treaties, however, is governed entirely by municipal law. Hence, although the international obligation of treaties can not be altered except by mutual consent,80 the terms of the treaty itself,81 or, as is generally admitted, by an entire change of the conditions upon which the treaty was founded, 82 the obligations of individuals and officers of government under it, are always subject to the will of the sox ereign. An act of congress specifically abrogating a treaty,83 or a subsequent and conflicting statute by that body,84 will abrogate
79See Holland, Studies in International Law, p. 190-193, Westlake, Is International Law Part of the Law of England ? L. Q. R. 22;14.
80 See Moore's Digest, 5;319-322; 363-364. 81 See Moore's Digest, 5;322-335.
82 See Moore's Digest, 5;355-356. This principle is generally spoken of as the implied reservation contained in all treaties of “rebus sic stantibus.” “There will be no state in the position to conclude a treaty for all time wherein lies a perpetual limitation of its own sovereignty.” Heinrich Treitschke, Politik, Leipsic, 1899, 2;550.
83Act July 7, 1798, stat. 578, abrogating French treaty of 1778. Moore's Digest, 5;356-363.
84 Head Money Cases, 112 U. S. 580; Whitney vs. Robertson, 124 U. S. 190, (1888); The Chinese Exclusion Cases, 130 U. S. 581, (1889); Homer vs. U. S., 143 U. S. 570; LaAbra Silver Mining Co., vs. U. S. 175 U. S. 423, 460, (1899); Moore's Digest, 5;364-370.
a treaty so far as municipal law is concerned, although vested rights created under it will be protected by constitutional guarantees in the same manner as vested rights under repealed statutes.85 The observance of a treaty, although a duty of international law, is a political question subject to the discretion of the sovereign and beyond the power of municipal law to control. However, by requiring that any such statute be unequivocal and incapable of reconciliation with the treaty by interpretation, the courts of the United States can do much toward enforcing the duty of the government not to abrogate treaties. Applying this principle, United States courts have held that war does not terminate treaties. It suspends them in respect to private rights of enemy persons and brings them into effect in respect to provisions specifically related to rights during war.8
In addition to the power of the political department of the government to terminate treaties it also has exclusive control of many treaty provisions which are by their nature incapable of enforcement by municipal law. Treaty obligations to pay money, to cede territory, to enact laws, to enter into constructive enterprises such as the Panama Canal or to make a particular disposition of military and naval forces are addressed to the political department of the government. The courts hold them political questions and will follow the political department in interpreting them.88 They can not be enforced as municipal law.
The only treaty provisions which are law actually enforceable by regularly constituted municipal authorities are those parts relating to the control of persons and inferior officers of government within the jurisdiction of the government. This enforcement may be either judicial or executive.
85 Chirac vs. Chirac, 2 Wheat. 259, 277, (1817); Society for the Propagation of the Gospel vs. New Haven, 8 Wheat. 464; Carneak vs. Banks, 10 Wheat. 182; Moore's Digest, 5;386-387.
86 In re Chin A. On, 18 Fed. Rep. 506.
87 Society for the Propagation of the Gospel vs. New Haven, 8 Wheat, 464, 494, (1823) ; Carneak vs. Banks, 10 Wheat. 181. Great Britain took a similar view in respect to a statute giving effect to a treaty which in terms was “to continue in force so long as the said treaty between his majesty and the United States should continue in force, and no longer." It was held that the War of 1812 did not terminate the treaty hence the statute remained valid. See 37 Geo. III, c. 97, (1797), in re treaty 1794, art 9, Sutton vs. Sutton, i Russell and Mylne, 663; Moore's Digest, 5;373. The United States did not agree to the Spanish claim that the war of 1898 abrogated all treaties between the two countries. See Moore's Digest, 5;375-376.
88 Doe vs. Branden, 16 How. 635; Foster vs. Neilson, 2 Pet. 314; The Amiable Isabella, 6 Wheat. I; Bottiller vs. Dominguez, 130 U. S. 238. Moore's Digest, 5; 241-242.
Judicial enforcement is secured by the power to hold invalid legislation or constitutional provisions of states in conflict with treaties,89 to compel administrative officials to perform acts by mandamus, or to refrain from action by injunction, and to apply treaties directly as rules of decision in adjudicating private rights, such as privileges granted aliens, and foreign officers resident in the country, prize rights of neutrals and enemies in time of war, etc. By such measures as injunction, the imposition of criminal penalties and civil liability in tort, courts both state and federal may also prevent the infraction of treaty rights of alien persons or foreign states by private persons within their jurisdiction.
Executive authorities may also take measures to enforce treaties directly. It has been held that imprisonment of persons in pursuance of treaty stipulations by executive authorities, in the absence of legislation, judicial process or declaration of martial law, is not an unconstitutional exercise of power nor a deprivation of liberty without due process of law.” It would thus seem that executive measures appropriate to the fulfillment of treaty obligations may be effectively used under no authority other than the treaty itself.
Legislative authority is necessary to make treaties effective in many cases, especially in those requiring an expenditure of money.91 It is generally considered to be a duty of congress to act where its aid is required, but in the case of a treaty with Mexico of 1883, providing that necessary legislation should "take place within twelve months from the date of exchange of ratifications,'93 congress failed to perform this duty. In many other cases the enforcement of treaties can be made more effective by
89Ware vs. Hylton, 3 Dall. 199, (1796); Chirac vs. Chirac, 2 Wheat. 259; Hauenstein vs. Lynham, 100 U. S. 483; Gordon vs. Kerr, 1 Wash. C. C. 322; Moore's Digest, 5;371-372.
90 Ex Parte Toscano, 208 Fed. Rep. 938, (U. S. Circuit Court, Cal. 1913). See also in re Debs, 158 U. S. 564 as illustrating general executive power to safeguard broad general interest, and its application to treaty enforcement by E. S. Corwin, National Supremacy, N. Y., 1913, p. 293.
91 See Moore's Digest, 5;221-223.
93 Treaty with Mexico, 1883, art. 8, Malloy, p. 1151. See Moore's Digest, 5;222.