Page images
PDF
EPUB

it is merely empowering the commission to find whether the particular case is one that the United States have said shall be arbitrated." Legal opinion has generally subscribed to this view,124 and the fact that the Senate advised ratification 125 of the International Prize Court Convention, with its supplementary protocol, which subjected the United States to the jurisdiction of the International Prize Court in defined classes of cases without even the conclusion of a preliminary compromis, indicates that the constitutional difficulty is not insuperable. A remarkable delegation of the discretion of the authority controlling the foreign relations of the country has been ratified by the treaty-making power in the twenty-odd Wilson-Bryan Peace Treaties concluded since 1914, according to which "all disputes of every nature whatsoever, which diplomacy shall fail to adjust" would have to be submitted to an international commission, with power to consider for a year and report, before hostile action could be taken.126

[ocr errors]
[ocr errors]
[ocr errors]

CONCLUSION

It appears that the principle of separation of powers imposes no limitation upon the treaty-making power. If the subject is appropriate for treaty negotiation, consonant with the purposes of the Constitution, and in violation of none of its specific prohibitions, the treaty, if ratified, is valid, and all other departments of government, the legislative, executive, and judiciary, are bound by their allegiance to the Constitution to perform the acts necessary to give it effect.127 Con

[ocr errors]

124 J. B. Moore, Independent, Aug. 8, 1911, cited by Senator Burton, supra, note 123. President Taft has said: "In the discussion of the general arbitration treaties in the Senate, there was a suggestion that the agreement to submit to a court questions which had not yet arisen described by definition and classification, with power in the court to take jurisdiction, was more of a delegation of power than the mere submission of an existing question to arbitrators. There is, however, not the slightest difference in principle between the two. If one is a delegation, the other is. If one is invalid, the other is; and if one is not invalid, the other is not." (Enforced Peace, p. 61.)

125 On Feb. 15, 1911, Charles, Treaties, p. 248.

126 G. G. Wilson, The Monroe Doctrine and the League to Enforce Peace. (Enforced Peace, p. 72.)

127 "The Government of the United States presumes that whenever a treaty has been duly concluded and ratified by the acknowledged authorities competent

sidering the practical working of the government, this capacity of the treaty power to impose obligations upon the other independent departments is not remarkable. Practically every valid act of one department does the same. Every constitutional Act of Congress imposes an obligation upon the President to enforce and the courts to apply it. Every decision of the courts imposes an obligation upon the President to execute it, and if upon a constitutional question, upon Congress to recognize it in future legislation; while political acts of the President, such as recognition of foreign states, insurrection, or belligerency, impose an obligation upon the courts to conform their decisions thereto.128

Where the coöperation of another department is required it would always be appropriate for the treaty power itself to consider the opinion of the departments concerned, especially if the prerogatives of Congress are involved, before ratifying the treaty, but such action would seem to be dictated by courtesy or expediency rather than legal necessity. The doubt of the competence of the treaty power in this connection has been attributed by President Taft to 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." 129

[ocr errors]

for that purpose, an obligation is thereby imposed upon each and every department of the government to carry it into complete effect, according to its terms, and that on the performance of this obligation consists the due observance of good faith among nations." Mr. Livingston, Sec. of State, to Mr. Serurier, June 3, 1833, Wharton, 2: 67. A similar view was expressed by the French Conseil d'Etat in 1839: "The execution (of treaties) devolves not on a single authority, but on all, according to their competence. The execution belongs to diplomacy, when a principal treaty demands accessory conventions. . . . The execution can be confided to the army if it can be accomplished no other way. The execution will be political if it concerns a treaty of alliance or an act of mediation. It can require the coöperation of the administration, if the acts are of that kind. Thus, for example, postal conventions will be executed under direction of the postal department. It must be finally admitted that the judicial authority will have its part in the execution of treaties, if on occasion there arise private controversies which are in its competence, such as questions of property, of family, of succession, or others of that kind." Dalloz, Juris. Gen., Rept., t. 42, s. v. Traité Int. No. 131.

...

128 Williams v. Suffolk Insurance Co., 13 Pet. 415 (1839); Jones v. U. S., 137

U. S. 202 (1890); The Prize Cases, 2 Black 635 (1862).

129 Constitutionality of the Program of the League to Enforce Peace. (Enforced Peace, p. 67.)

The only limitation upon the treaty power is found in the ends for which it acts. The means of performance specified in the Constitution must be observed in this as in all other governmental activity, but the necessity of such observance is no impeachment of the validity of the instrument and furnishes no license for a refusal to act by the organs whose coöperation is required.

QUINCY WRIGHT.

VIOLATION OF TREATIES BY ADVERSE NATIONAL ACTION

THE shade of distinction sought to be shown by the title of this paper may require explanation. Imperfect wording involves either carelessness or ignorance; bad faith indicates dishonesty; nonexecution or disregard implies laxness in the government, if not carelessness; adverse or hostile municipal or judicial action connotes lack of coördination between the internal and external affairs of the State. It follows that such adverse action may be considered from a practical point of view as almost a normal kind of violence against international contracts. It is not to be excused on that account, but it may be considered as a frictional incident almost inseparable under some conditions from the existence of a State. Given either a government of definitely separated elements, such as the United States, or a government without much stability, or a State founded on a type of civilization different from the European order, and this sort of violation of treaty may be forecasted with certainty. Fortunately, however, the instances that cause contractual friction of this sort are of the grosser kinds of personal violence, or are commercial; they are not of a political character, cannot be said to involve policy, and only by a stretch of the imagination involve the tweedledum and tweedledee of international relations, "national honor and vital interest." They are consequently extremely susceptible to simple and orderly solution.

One may doubt if any governmental machine is quite as capable of producing friction of this kind as that of the United States. In the case of treaties which bind the government there is no trouble at all if the subject-matter lies outside the legislative power of Congress. But on common interests Congress can vitiate a treaty by passing a subsequent statute, though the executive can forthwith vitiate the statute by another and later treaty; which is a game of seesaw not

ordinarily worth playing. As to the Federal States, there is a complication. Logically, any plea in any case that a treaty was violated or affected should, under technical restrictions, serve to secure a change of venue to the Federal system of courts. As a matter of fact, only tort cases are certainly cognizable in the Federal courts. If, however, a case involves a treaty and the supreme court of a State has passed on it, the Supreme Court of the United States is now able to take jurisdiction. This probably renders it possible to secure a hearing for criminal cases in violation of treaty rights before the Supreme Court. Suits in law or equity are subject to the provisions of the Eleventh Amendment and are the subjects of rules in the Judicial Code.

Under the American constitutional system, violation of treaties is upheld by the courts if it occurs within certain bounds. Article. VI of the Articles of Confederation provided:

3

No State, without the consent of the United States in Congress assembled, shall . . . enter into any conference, agreement, alliance or treaty with any king, prince or state.

No two or more States shall enter into any treaty, confederation

1 Judicial Code, sec. 237, as amended by Public No. 224, 63d Cong., approved December 23, 1914.

2 On this subject see William H. Taft, The United States and Peace, 40-89. 3 Under the Articles of Confederation, between 1776 and 1789, fourteen treaties were negotiated by the United States as follows: France, alliance, and secret article, February 6, 1778; France, amity and commerce, February 6, 1778; France, contract for the repayment of loans, July 16, 1782; France, contract for a new loan and the repayment of the old loans, February 25, 1783; France, consular, November 14, 1788; Great Britain, provisional treaty of peace, November 30, 1782; Great Britain, armistice, January 20, 1783; Great Britain, definitive treaty of peace, September 3, 1783; Morocco, peace and friendship, January, 1787; Netherlands, peace and commerce, October 8, 1782; Morocco, relative to recaptured vessels, October 8, 1782; Prussia, amity and commerce, September 10, 1785; Sweden, amity and commerce, April 3, 1783. Authenticated instances of violation under the régime of the Articles of Confederation have not been found, and it is probable that the complaint of the statesmen was directed at a theory, not a condition; but see Curtis, Constitutional History of the United States, I, 168-174. For matters of dispute relating to these treaties see for: France, Moore, Digest, V, 586-615; Great Britain, ibid., 621-699; Netherlands, J. C. B. Davis' Treaty Notes (1776– 1887), 1360; Prussia, Moore, ibid., 617-618; Sweden, ibid., 864-865. Federal cases involving treaty provisions will be found in the later treaty volumes listed as notes to the treaty texts.

« PreviousContinue »