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

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, the obligations of individuals and officers of government under it, are always subject to the will of the soyereign. An act of congress specifically abrogating a treaty, or a subsequent and conflicting statute by that body, will abrogate

84

83

79 See 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.

81See 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.

83 Act July 7, 1798, I 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,86 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.87

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

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.

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.

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.90 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,92 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

89 Ware 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.

92 Cushing Att. Gen., 6 op. 296, (1854).

93 Treaty with Mexico, 1883, art. 8, Malloy, p. 1151. See Moore's Digest, 5;222.

legislative action. Statutes and orders imposing criminal penalties, creating administrative positions, directing public officers, etc., have often been enacted and promulgated for this purpose. Rules contained in treaties are similar to those contained in international law in their relation to the municipal law of the United States. In both cases the rules are primarily obligatory upon the government, and in both cases, as a municipal measure to aid in the enforcement of the government's obligations, it is provided that the rules shall be part of municipal law and directly enforceable by courts and executive officers in appropriate cases. In both cases also many of the rules are by their nature incapable of immediate enforcement as municipal law, because the courts can not exercise jurisdiction over the parties or subject matter. In such cases they are political questions, and the national duties under them may be fulfilled through discretionary executive action or the enactment and enforcement of supplementary laws.

CHAPTER V. OBLIGATIONS OF VINDICATION

INTRODUCTORY

The duties of prevention relate to acts committed by private individuals for which the government is responsible, and which it is bound to prevent. The government is not responsible for acts of aliens, but international law sometimes requires it to treat violators of international law, even when they are aliens, in a specified manner. The obligation of states is not limited to the mere negative one of not doing harm to others, but as members of the family of nations they owe at least a moral duty to that society to take measures to promote its general welfare. They must vindicate their sovereignty, when foreigners violate international law in their territory or foreign criminals attempt to find refuge there, by exercising jurisdiction over such persons according to the requirements of international law. And they must vindicate their position in the family of nations by cooperating with other nations in constructive activity for the general good.

Duties of this character are for the most part in a process of becoming, rather than being already established law. In time of peace, customary international law does not require such activity, yet the progress of conventional law, in requiring duties of this character, leads to the belief that some of them may be soon recognized as obligations of the law of nations.

INTERNATIONAL COOPERATION

2

Such international conventions as those providing for an international bureau of weights and measures,1 for the international protection of industrial property, for the protection of submarine cables,3 for the repression of the African slave trade,* for a Universal Postal Union," for the protection of literary and

1International Bureau of Weights and Measures, 1875, Malloy, p. 1924. 2Convention for International Protection of Industrial Property, 1883, Malloy, p. 1935.

3 Convention for Protection of Submarine Cables, 1884, Malloy, p. 1949. General Act for the Repression of African Slave Trade, 1890, Malloy, p. 1964.

"Universal Postal Conventions, 1891, 1897. Concluded by Act of June 8, 1872. See Moore's Digest, 5;220.