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CHAPTER VI. OBLIGATIONS OF REPARATION

INTRODUCTORY

Reparation is a duty owed by a state in case of a failure to observe any of its obligations under international law. If it commits any forbidden acts itself, or fails to prevent its subjects from doing so, it must make amends to the injured state or its subjects. This applies to violations of the duties of states when neutral or belligerent, as well as in time of peace. To enumerate the occasions on which reparation is due would, therefore, be to recapitulate practically the whole of this paper. It is not the purpose of this chapter to discuss the occasions upon which the United States has given reparation, but rather to consider the general laws by which the duty to make reparation is enforced.

Like all obligations of international law, reparation is primarily a duty of states. No matter who the perpetrator of the wrong, whether a private person or a diplomatic officer, if it is a breach of international law the state will be held liable. Viewed from this standpoint, reparation is beyond the control of municipal law. As an obligation upon the sovereign power, municipal law can lend no effective sanction, although it can, by proper constitutional agreements, insure a distinct recognition, both national and international, of the authority which is to be considered the responsible agent of sovereignty in this respect, and can furnish a machinery whereby the demands required by a just observance of the duty of reparation may be made known.

Furthermore, although the state is ultimately held responsible, material reparation may often be had more expeditiously by direct recourse to the private person, officer or department of government immediately at fault. Municipal law may enforce the duty of such persons and departments to make reparation.

It is true that the municipal enforcement of the duty to make indemnity incumbent upon the immediate perpetrators of the wrong is often used as a basis for denying the duty of "reparation" altogether, using the term to signify solely an idemnification by the government of the state at fault. This view is be

1See especially Secretary of State Evarts and Secretary of State Bayard, official correspondence on Chinese outrages, 1880-1885, Moore's Digest, 6;820-835.

lieved to be untenable. If a breach of international law has been committed, the state through its recognized government is responsible, no matter what advantages of recourse to the immediate party at fault its municipal law may give. The duty of the government to make reparation can only be escaped by proof that the tort was not one of international law. If it is admitted that international law requires a state to give reasonable protection to aliens in its territory, then an injury to such aliens by mob violence implies an obligation of reparation and indemnity by the government, no matter what remedies from the immediate perpetrators, through courts of justice, municipal law may permit. Escape from the obligation of the government can only be based on a denial of the statement that international law imposes such an obligation of prevention.

But although the state can not escape the obligation to make reparation for breaches of international law, through its government, this does not prevent it providing other means by which the injured party may obtain reparation, through municipal law. Such municipal remedies may be more rapid and satisfactory to all parties concerned than recourse to the government through diplomatic channels. If satisfaction is obtained from the person or officer guilty the state's duty of reparation is fulfilled, and to its fulfillment in this manner municipal law may lend a sanction. The question may therefore be treated under two heads, (1) reparation by the national government, (2) reparation by inferior governmental divisions, public officers and private persons.

REPARATION BY THE NATIONAL GOVERNMENT

Under the constitution, exclusive control of foreign relations is in the hands of the national government of the United States. In this field it is sovereign. The municipal law of the United States can not compel it to observe its duties of reparation. On numerous occasions the duty has been recognized, through the voting of indemnities by congress, the authorization of salutes to a foreign flag or public apology, but it has been done as a matter of policy, comity, foreign pressure or sense of international obligation, not from any coercion of municipal law.

Although the duty of the national government to make reparation can not be compelled by municipal law, the probability of the duty being performed will be greatly increased if municipal law (1) places no obstacles in the way of such performance, and (2) establishes a machinery for the determination and set

tlement of claims for reparation. Municipal law may thus be of great importance in the fulfillment of this international duty.

(1) The obstacles if any which the constitutional system of the United States places in the way of an adequate performance of the duties of reparation will be considered according to the character of those duties. Reparation may take the form of (a) apology, or salute of a foreign flag, (b) cession of territory, (c) pecuniary indemnity, (d) punishment or surrender of offenders, or (e) release of persons held in custody in contravention of international law.

(a) Such formal modes of reparation as apology and salute of the flag are entirely executive in nature. The president through his control of foreign relations exercises unrestrained discretion in these matters.2

(b) Reparation by cession of territory generally results from war. The United States demanded such indemnity, although it can scarcely be called reparation, in the Mexican and Spanish wars, but it has never made cessions for this reason itself. The power to cede territory is generally agreed to be inherent in the treaty power, consequently, if necessary, reparation of this character could be made by the president with the advice and consent of two-thirds of the senate.3

(c) Pecuniary indemnity is the most common form of reparation, and it clearly cannot be made without the express consent of congress. Congress by the constitution has control of the purse, and consequently no indemnity can be paid without an appropriation by it, although lump appropriations for the general purpose of settling claims might be voted, to be expended at

2For reparation by apology see The Trent Affair. No formal apology was made, but Great Britain recognized the return of Mason and Slidell and Secretary of State Seward's note as equivalent to the apology demanded. Moore's Digest, 7;771. For reparation by salute of flag see case of French Consul subpoenaed in San Francisco, Moore's Digest, 5;80; case of The Florida seized in Brazilian territorial waters, Moore's Digest, 7;1091; Case of Spanish consulate attacked at New Orleans, Moore's Digest, 6;813.

3Lattimer vs. Poteet, 14 Pet. 14. There has been dicta to the effect that the consent of a state is necessary before any of its territory may be ceded. See Geofroy vs. Riggs, 133 U. S. 267; Insular cases, 182 U. S. 345, though in this case the court admitted that territory of a state might be ceded to buy peace after a disastrous war without such consent. See Butler, Treaty Making Power, 1;411-413; 2;238, 287-294; Moore's Digest, 5;171-175.

executive discretion. As the steps leading to reparation and the correspondence on the subject are conducted by the president, a failure on the part of congress to appropriate for a reparation the validity of which had been admitted by the executive, might lead to serious trouble. As a matter of fact congress appears to have followed the recommendations of the president in this respect.*

However, the probability of the national government paying indemnities depends somewhat upon its control of the actual perpetrators of the wrong. The breach of international law may have been through an act of the national government itself or an agent acting under express authority, in which case no such question would arise. It may have been through the unauthorized act of an officer of the national government abroad or within the territory of the United States. As such officers if military or naval are under the constant control of the government through courts martial and military law and if civil are under executive control and are frequently bonded, the government would have no grounds for denying its responsibility from this cause.

Where the offense has been committed by a state officer or a private citizen within the territory of a state, it seems to be settled that the constitution does not bar the national government from prosecuting the offender in its own courts if his act violates international law or a treaty. It is also clear that no such jurisdiction may be exercised unless statutes specifically provide for it. Statutes have provided for the extension of the jurisdic

As examples of pecuniary indemnity voted by congress, see Case of Spanish Consul, Act, Aug. 31, 1852, 10 Stat. 898; Mch. 3, 1853, 10 Stat. 262, Moore's Digest, 6;814-818; Rock Springs Anti Chinese Outrage, Oct. 19, 1888, 25 Stat. 565.566; Italian Lynchings, New Orleans, 1891, Moore's Digest, 6;840; Colorado, June 8, 1896, Moore's Digest, 841; Hahnville, La., July 19, 1897, 30 Stat. 105,106; Tallulah, La., 1899, Moore's Digest, 6;846; Erwin, Mass., Mch. 3, 1903, 33 Stat. 1032; English Seaman injured, New Orleans, June 8, 1896; Mexican Lynching, Yreka, Cal., July 17, 1898, 30 Stat. 653; in Texas, March 3, 1901, 31 Stat. 1010.

5W. W. Willoughby, The Am. Const. System, N. Y., 1904, p. 108; E. S. Corwin, National Supremacy, N. Y., 1913; U. S. vs. Arjona, 120 U. S., 479, (1887).

6On the strictly statutory character of the jurisdiction of federal courts except the supreme court see U. S. vs. Worral, 2 Dall. 384, (1798), and general terms of judiciary act of 1789, Rev. Stat. 687-750 granting less jurisdiction than is included under constitutional provisions. Somewhat contra see In re Debs, 158 U. S. 564, 584, saying, "Every government is en.

tion of federal courts over persons violating diplomatic immunities, and over a few specified offenses against foreign states," but no such provision has been made where the offense is against the general rights of aliens or consuls residing within the country. It is not surprising, therefore, that for offenses of this character the United States has been very reluctant to admit a duty of reparation. Where it can not punish offenders, or take measures to prevent a recurrence of outrages, the national government has felt that it is not legally responsible, and where it has made indemnity has done so as a "gratuity" rather than an obligation. If, however, as appears to be the case, international law imposes a duty of preventing injury to resident aliens, no such plea will avail. The United States government is the only authority within the territory of the United States known to foreign states, and will be held responsible for violations of international law or treaties, whether it in fact can control the guilty persons or not. It therefore seems that statutes should give the federal courts jurisdiction over offenders of this character."

(d) Frequently the injured state has specifically demanded the punishment of offenders as reparation.10 Here also the contrusted by the very terms of its being with powers and duties to be exercised and discharged for the general welfare, and has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other." The supreme court appears to have an inherent jurisdiction by the constitution subject to the power of congress to limit it, but as positive grants of jurisdiction by congress are held to negative all other jurisdiction, its jurisdiction in reality extends no further than provided by statute. See U. S. vs. Moore, 3 Cranch 159,170,172; Durousseau vs. U. S. 6 Cranch 307,313; Ex Parte McCardle, 7 Wall. 506,

513.

"Supra, p. 71 et seq.

See Diplomatic correspondence and congressional action on indemnities for injury to Spanish consul, 1851, Chinese Outrages, 1880-1885, Italian Lynchings, 1891-1901, etc., Moore's Digest, 6;811-849. In the last of the Italian cases the act of congress Mch. 3, 1903, 33 Stat. 1032, appropriated $5,000 "out of humane considerations without reference to the question of liability therefor to the Italian Government." Moore's Digest, 6;849.

"See Messages Pres. Harrison, Dec. 9, 1891; Pres. McKinley, Dec. 5, 1899, Dec. 3, 1900, Moore's Digest, 6;840,846-847, in which such legislation is recommended.

10 See case of French Privateers, 1811, Moore's Digest, 6;809; Chinese Outrages, Denver, Colo., 1880, Moore's Digest 6;820; Italian Lynching, New Orleans, 1891, Moore's Digest, 6;838.

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