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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
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 so
a ciety 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.
Such international conventions as those providing for an international bureau of weights and measures, for the international protection of industrial property, for the protection of submarine cables, 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.
3Convention for Protection of Submarine Cables, 1884, Malloy, p. 1949.
"General Act for the Repression of African Slave Trade, 1890, Malloy, P. 1964.
5Universal Postal Conventions, 1891, 1897. Concluded by Act of June 8, 1872. See Moore's Digest, 5;220.
artistic copyrights, for promoting sanitation and preventing epidemic diseases, are adhered to by large numbers of states including the United States, and impose duties upon states for the general good of the civilized world. Similar duties are imposed by the Geneva and the Hague conventions, although their rules are largely declaratory of international law and define obligations owed to single states rather than those required for the general good alone. In its most recent interpretation of the Monroe Doctrine the United States appears to have recognized that it must assume certain responsibilities in connection with countries of the Western Hemisphere. The administration of customs duties on several occasions in Latin American countries, for the purpose of paying obligations owed by such countries to European nations, is an illustration of the exercise of this duty; and the activity of the various Pan-American congresses indicates further special duties connected with the affairs of the new world.”
These obligations are spoken of as duties of international cooperation 10 and the law regulating them as international administrative law. 11 There has been a great deal of municipal legis
. lation for enforcing these duties, and judicial opinion interpreting them, but as they are not yet duties imposed by international law aside from convention we will not attempt to consider the subject here.
PREVENTION OF CRIME
There is, however, one duty of a similar character which is so habitually practiced and is so well established that it can almost be said to constitute a real duty of international law. That is the duty to aid in the suppression of the more serious crimes. The power of national courts to exercise extra-territorial jurisdiction on the high seas for the punishment of pirates is well recognized by international law, and it seems that a positive duty to exercise this authority and suppress piracy is likewise fairly established. A government that does not take adequate measures to suppress piracy may expect other governments to intervene and punish pirates even within its jurisdiction.12 The slave trade conventions have recognized a similar obligation to suppress this commerce. The municipal measures which the United States has taken to perform these duties have been discussed.13
& Convention on Literary and Artistic Copyrights, 1902, Malloy, p. 2058. International Sanitary Convention, 1903, Malloy, p. 2066.
8See President Roosevelt's Annual Message, Dec. 6, 1904, For. Rel. 1904, xli; Moore's Digest, 6;596.
9Act May 24, 1888, Moore's Digest, 6;599-604. Treaties of the Central American Peace Conference, 1907, Malloy, p. 2391-2400. The duty of preserving order in Cuba and Panama is recognized by treaties, Cuba, 1903, p. 362-4, Panama, 1903, art. 23, p. 1356.
10 See Moore's Digest, 2;466-488.
11See P. S. Reinsch, International Unions and their administration, Am. Jour. Int. Law, 1;579-673. (1907): Int. Adm. Law and National Sovereignty, Am. Jour. Int. Law, 3;145, (1909); Public Int. Unions, Boston, 1911; Hershey, Essentials of Int. Pub. Law, p. 5, bibliography, p. 14.
Attempts have been made to conclude international conventions requiring states to prevent the emigration of criminals from their territory and to establish international police bureaus for the detection of criminals, but it can not be said that international law as yet imposes obligations of this character.14 The duty of punishing its own criminals and giving up criminals seeking asylum in its territory to the state where the crime was committed is sometimes considered a duty of international law,15 and it certainly is a duty very commonly observed. However, the assertion that states are positively required by international law to extradite criminals appears to be erroneous. Extradition is not a duty of international law.16 In the absence of a treaty, states are not under an obligation to surrender criminals. The duty has, however, been so universally acknowledged by conventional law that a brief consideration of the laws of the United States relating to its enforcement may be appropriate.
That no legal obligation to extradite criminals exists in the absence of treaty has been affirmed by courts and political officers of the United States.1? There have, however, been some cases of
12See the Amelia Island case, President Monroe's message, Nov. 17, 1818, Moore's Digest, 1;173: 2;406-408.
13Supra, pp. 34-36.
14 Such efforts have been made especially in reference to the suppression of anarchists; see Moore's Digest, 4:95-96: 2;432-434.
15 See Sir. E. Clarke, A treatise on the Law of Extradition, 4th ed. 1903, ch. 1; Chancellor Kent, In Matter of Washburn, 4 Johns Ch. 105, 107, (N. Y.); Hershey, op. cit., p. 263, note 69.
16 See Moore on Extradition, 1;13-20: Moore's Digest, 4;245.
17 Commonwealth vs. Deacon, 10 S. and R. 125; U. S. vs. Rauscher, 119 U. S. 407; Terlinden vs. Ames, 184 U. S. 270, 289, (1902); Moore's Digest, 4;245-246.
extradition without treaty, but the act has been described as one dictated by courtesy rather than by legal obligation.18 The international duty recognized by the United States, therefore, is that of obeying the extradition treaties.
(1) Provision for extradition of murderers and forgers was made in the treaty with Great Britain of 1794, in force till 1807.19 The first general extradition provision was in the Webster-Ashburton treaty of 1842 with Great Britain.20 Since that time treaties have been concluded with almost all important countries, 21 and they generally specify that persons indicted for the more serious crimes shall be extradited. Express exclusion is ordinarily made of political offenders.22
Although there have been some state laws providing for extradition to foreign governments,23 the better opinion seems to be that the national government alone has the power to deliver up fugitives from foreign countries.24 National statutes25 since 1848 have provided for the apprehension and preliminary trial by federal courts of persons whose extradition is requested, although it has been held that, treaties being law, the courts can perform such functions in the absence of statute.28 The courts have held
18See case of Arguelles, Moore on Extradition, 1;33: Moore's Digest, 4;249.
19Treaty with Great Britain, 1794-1807, art. 27, Malloy, p. 605. 20Treaty with Great Britain, 1842, art. 10, Malloy, p. 655.
21 Eighty-four treaties with fifty countries have been concluded. The independent states with which there appear to be no treaties at present are as follows: Roumania, Bulgaria, Greece, Montenegro, Paraguay, Uruguay, China, Persia, Siam, Liberia, Abyssinia. There is no extradition treaty with the German Empire, but treaties are in effect with the North German Union and the folowing states of the empire: Baden, Bavaria, Bremen, Hanover, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg, Prussia, Schamberg-Lippe, Wurtemburg.
22Ornelas vs. Ruiz, 161 U. S. 502, (1896); In re Ezeta. 62 Fed. Rep. 972; Moore's Digest, 4;332-354.
23Treaty with Mexico, 1861, art. 2; Law of New York, 1822, p. 134, N. Y. Rev. Stat. 1827, declared unconstitutional in People vs. Curtis, 50 N. Y. 321, (1872); Moore on Extradition, 1;53: Moore's Digest, 4;240.
24 Holmes vs. Jennison, 14 Pet. 540, 579, (1840) ; Legare, Att. Gen. 3 op. 661, (1841); People vs. urtis, 50 N. Y. 321, (1872); U. S. vs. Rauscher, 119 U. S. 407, 414, (1886).
25 Act. Aug. 12, 1848; 9 Stat. 302, act. June 22, 1860, 12 Stat. 83, Rev. Stat. sec. 5270-5280.
26A number of extradition treaties were concluded before the first statute in 1848, and extraditions were made under them. See The British