Even if an arbitration of such United States the government such claims shall be pressed at all. claims results successfully for the may withhold the money from the individual claimant if it discovers fraud. Thus claimants in the L'Abra and Wyle claims against Mexico were unable to compel the Secretary of State by mandamus to turn over to them the money paid by Mexico to the United States as a result of the arbitration.75 The United States government had discovered fraud after the arbitration and ultimately returned the money to Mexico. Where a general arbitration treaty exists, the better authorities hold that the President may submit claims falling within them on his own authority, unless the general treaty requires otherwise. The Senate however has taken a different view.76 Arbitration awards are considered final and obligatory and have practically always been met by the United States." In the few cases where they have not, the United States has contended that the arbitration court exceeded or abused its powers.78 Unless such exception is taken at once by the political organs, the courts hold arbitration awards authorized by treaty the supreme law of the land." Although often recommended, no international court of justice was established until 1921. The International Prize Court to be set up by the XII Hague Convention of 1907 never came into being. Such a court, authorized by Article XIV of the League of Nations Covenant, was established by action of the Second Assembly of the League, September, 1921, on the basis of a code prepared by a com 74 J. B. Moore, Pol. Sci. Quar., 20: 403; Willoughby, op. cit., p. 475; Moore, Digest, 5: 211. 75 L'Abra Silver Mining Co. v. U. S., 175 U. S. 423 (1899); Foster, The Practice of Diplomacy,. 374-377. 76 Willoughby, op. cit., p. 475, supra, sec. 62, infra, sec. 163. The AngloAmerican claims treaty of 1910, differing from those of 1853 and 1871, requires that each schedule of claims under the treaty be approved by the Senate as a special treaty (Charles, Treaties, p. 50, and Sir Cecil Hurst in British Year Book of International Law, 2: 193). 77 I Hague Conventions, 1907, pp. 81-83. 78 Moore, Digest, 7: 59-62. 79 Comegys v. Vasse, 1 Pet. 193, 212; La Ninfa, 75 Fed. 513 (1896); Moore, Digest, 7:55. mission of jurists in 1920 and approved with modifications by the council and by the First Assembly and ratified at that time by 29 members of the League.80 An international court of claims before which private individuals might bring cases against governments has also been suggested. With reference to such a court Borchard says: 81 "The divorce of pecuniary claims from political considerations a union, which now not only results in inexact justice, but often gross injustice, and the submission of such claims to the determination of an independent tribunal, must make a universal appeal to man's sentiment for justice." C. Power to Perform National Obligations. 149. Appropriations. A decision having been made as to what action is required in order to meet the obligation, it becomes the duty of organs empowered thereto by the Constitution to perform those acts. Under the power to raise taxes for the general welfare, Congress undoubtedly has power to make appropriations for this purpose. Where Congress itself has decided that the obligation is due it will of course make the appropriation. Where a decision by a national court acting within its jurisdiction or an international arbitration court has been given, appropriations have been made as a matter of course. Where the Department of State has admitted the validity of a claim Congress has generally made the appropriation. Thus on January 30, 1896, Secretary of State Olney, after discussion with the Italian Ambassador with reference to the lynching of three Italian citizens in Colorado, reported to the President: "The facts are without dispute and no comment or argument can add to the force of their appeal to the generous consideration of Congress." 82 80 For draft plan of organization by Root et al. see Am. Jl. Int. Law, Supp., 14: 371 (Oct., 1920), and for code as adopted see A League of Nations, 4: 281 et seq. 13 additional states had signed but not ratified the code in September 1921 and 13 states had accepted the clause providing for compulsory jurisdiction, ibid., 278, 291. 81 Borchard, op. cit., p. 864. See also pp. 328, 373, 443. President Cleveland said in his message to Congress of February 3, 1896: 83 "Without discussing the question of the liability of the United States for these results, either by reason of treaty obligations or under the general rules of international law, I venture to urge upon the Congress the propriety of making from the public Treasury prompt and reasonable pecuniary provision for those injured and for the families of those who were killed." By an act of June 30, 1896, Congress provided: 84 "To the Italian Government for full indemnity to the heirs of three of its subjects who were riotously killed, and to two others who were injured in the State of Colorado by residents of that State, ten thousand dollars." Where appropriation has been required for the execution of treaties, Congress has never failed to act85 but has asserted a right to exercise discretion. Thus a house resolution of 1796 relating to the Jay treaty states: 86 "When a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect and to determine and act thereon as in their judgment may be most conducive to the public good." This attitude though virtually repeated on several later occasions has not been generally approved outside of the House of Representatives and undoubtedly a moral obligation to make the appropriation exists.8 87 83 Richardson, Messages, 9: 664; Moore, Digest, 6: 843. 84 Moore, Digest, 6: 843. In later appropriation acts for similar claims Congress paid out of humane considerations and without reference to the question of liability, therefor," ibid., 6: 845, 849. See also report of Senator Lodge, 1901, ibid., 6: 852. 85 Appropriation acts for this purpose are listed, Crandall, op. cit., p. 179. 86 Annals, 4th Cong., 1st sess., p. 771. The resolution was affirmed without debate in 1871. Cong. Globe, 42d Cong., 1st sess., p. 835; Wharton, 2: 19; Moore, Digest, 5: 224; Crandall, 165 et seq.; Wright, Am. Jl. Int. Law, 12: 66. See also Gallatin to Everett, Jan., 1835, Moore, Digest, 5: 232. 87 Crandall, op. cit., p. 177; Willoughby, op. cit., p. 483; Dana's Wheaton, sec. 543; Wharton, Digest, 2: 67-68; supra, sec. 59; infra, sec. 256. 150. Cession of Territory. Treaties or arbitration awards may require a cession of territory. Such provisions affecting small tracts of territory in boundary settlements have been considered self-executing.88 The same view would probably be taken of a large cession if conditions were such that it could be considered constitutional.89 151. Guarantees and Use of Military Force. Treaties of guarantee, or requiring the employment of force in policing or other operations have usually been carried out by the President. Thus on many occasions the President has dispatched troops to Panama in maintenance of the guarantee in the Colombia treaty of 1846 and Presidents have also dispatched troops to Cuba, Hayti and China in pursuance of treaties and protocols requiring protection.o Congressional legislation has often provided expressly for the use of force in pursuance of treaty. Article 8 of the Webster-Ashburton treaty of 1842 required that the contracting powers keep naval forces of specified size off the coast of Africa for the suppression of the slave trade. Congress passed an act authorizing the President to dispatch vessels for this purpose, and the President so acted.91 If a guarantee treaty requires a declaration of war, Congress alone can carry it out, although its discretion ought to be confined to consideration of whether the contemplated circumstances exist 88 The Webster-Ashburton treaty adjusting the Maine Boundary was considered self-executing with respect to territory claimed by Maine, but given to Canada by the treaty. Little v. Watson, 32 Maine 214, 224 (1850); Crandall, op. cit., p. 223. The Supreme Court of the United States has recognized boundary settlements between states of the Union. Va. v. Tenn., 148 U. S. 503. See also La Ninfa, 75 Fed. 513, in which the arbitration award fixing jurisdictional limits in Behring Sea was held self-executing. 89 Willoughby, op. cit., p. 512; Crandall, op. cit., p. 220 et seq.; supra, sec. 50. 90 Supra, secs. 126, 145; infra, secs. 221-224. 91 Moore, Digest, 2: 939. See also ibid., 2: 941; Rev. Stat., sec. 5557; Criminal Code of 1910, sec. 260, 35 Stat., 1140, Comp. Stat., secs. 10, 433. In reference to Slave trade treaty of 1862, see Moore, Digest, 2: 946. In reference to General act of Brussels for suppression of the slave trade, ibid., 2: 949. and whether war is the most effective means of carrying out the guarantee.92 152. Conclusion of Subsequent Treaties. Protocols and preliminaries of peace may require the conclusion of definitive treaties along prescribed lines. Such provisions can only be carried out by the treaty power. A protocol calling for conclusion of a treaty for arbitration of the Behring Sea controversy was carried out by a treaty in 1891. Spain objected to the definitive treaty of peace as insisted upon by the United States in 1898 on the ground that it was in violation of the preliminaries of peace in some respects. Treaties often require the conclusion of subsequent treaties. This has been true of many general arbitration treaties specifically requiring special treaties submitting cases within the scope of the general treaty. The League of Nations Covenant contemplates treaties on many subjects in which international cooperation is urged. In such cases the treaty power may act within the discretion allowed it by the general treaty.93 153. Participation in International Organization. Treaties requiring the appointment of officers for participating in international organizations, such as the permanent Court of Arbitration and Bureau established by the I Hague Convention of 1899, and 1907, and for putting administrative regulations into effect such as the Behring Sea seal fisheries treaty, the international radio treaty, etc., can be carried out by the President, though Congress has often passed acts expressly authorizing participation in such organizations and enforcement of such regulations." If permanent offices with a fixed salary are required, an act of Congress would be essential for the execution of such provisions.95 92 Supra, sec. 37, infra, sec. 211. See also Wright, Am. Jl. Int. Law, 12: 72-79. 93 Supra, sec. 144. 94 The President is authorized to use naval vessels to enforce the Submarine cable treaty of 1885, by act of Feb. 27, 1888, 25 Stat. 41, Comp. Stat., sec. 10087. He is authorized to enforce the Behring Sea Seal fisheries treaty of 1911 by act of Aug. 24, 1912, 37 Stat. 499, Comp. Stat., sec. 8838. For acts authorizing participation in various international organizations, see infra, sec. 242. 95 Infra, sec. 242. |