CHAPTER X. THE POWER to Meet InTERNATIONAL ResponsibilITIES. 89. The Law of International Responsibility. The principles determining the responsibility of states under international law have not been fully formulated and such formulation has proved difficult because of the divergencies of practice which have sometimes resulted from differences in national power. Borchard has given the best survey of the subject and the following statement is based largely on his work.1 1. Acts of Government Organs. The state is responsible for tortious acts committed by executive, diplomatic, naval, military, and superior administrative officers of the central government or local subdivisions unless plainly outside of their functions and promptly disavowed. For such acts by inferior administrative officers, the state is responsible only if there is evidence either express, by authorization of a superior officer or of the law, or tacit, by the failure to afford redress or to punish the offending officer, that it sanctioned the act.2 Judicial errors are not in themselves torts, though the courts may involve the international responsibility of the state if they fail to apply international law or deny justice. The state is also responsible for the authorization of acts violative of international law, or treaty, or unreasonably discriminatory, by constitutional provision, legislative act, executive or administrative decree, or judicial decision of central or local de jure 1 Borchard, Diplomatic Protection of Citizens Abroad, p. 177 et seq. See also Hall, International Law (Higgins), pp. 226–232; Oppenheim, Int. Law, I sec. 148 et seq. For definition of "responsibility" see infra, sec. 141. 2 Borchard, op. cit., pp. 189–192. 8 Ibid., p. 195. authority. The promulgation of such constitutional provision, statute, ordinance or decision, if sufficiently concrete to raise a presumption that international law will be violated, is a ground for immediate protest. Other states are not obliged to await the actual commission of an act in violation of their rights." 2. Acts or Omissions of Individuals within State Jurisdiction. The state is responsible for the nonfulfillment of contractual obligations made by private individuals or by public officers, ultra vires, and for tortious acts committed in its jurisdiction by private individuals, inferior officers or any officers acting without authority, only in case its courts "deny justice" or executive and administrative officers fail to exert "due diligence" in the maintenance of order and enforcement of international law and treaty." The definition of "denial of justice" involving an investigation of the adequacy of municipal law remedies and the degree of their observance in the particular case and of "due diligence," involving the establishment of criteria applicable to mob violence, insurrection, war and neutrality, has proved the most difficult branch of the subject of responsibility. In other cases of responsibility the government itself is at fault and the responsibility of the state is direct and immediate. In the present case the original fault is not by the government, and the state is responsible indirectly or vicariously and only after municipal law remedies have been exhausted.' 3. Non-fulfillment of Obligation. The state is responsible. for the non-fufillment of contractual obligations made by any legislative, executive or administrative organ acting within legal authority derived from a de jure govern 5 See Ambassador Bryce to Secretary of State Knox, February 27, 1913, Diplomatic History of the Panama Canal, 65th Cong., 2d sess., Sen. Doc., No. 474, p. 101, supra, sec. 15. Borchard, op. cit., pp. 183, 213, 283. As to two meanings of expression "denial of justice," see ibid., p. 335. 7 Ibid., p. 180. See also Hall, op. cit., p. 226. Oppenheim, loc. cit., originated the expression "vicarious responsibility" in this connection. ment or generally recognized de facto government of the state as a whole, and for the non-performance of acts required by international law. Contractual obligations made under authority of political subdivisions of the state or under authority of local de facto governments, or de facto governments which never attain general recognition, do not involve an international responsibility unless the state received a benefit therefrom. The question of whether force may be used to compel the payment of public contract debts (involved in the Drago Doctrine and II Hague Conventions 1907) relates to the remedy and not to the legal responsibility." 8 The state is responsible for the reparation which treaty or international law may impose, in case of failure to meet any of the foregoing responsibilities. 90. State Power to Meet International Responsibilities. Extensive powers for the employment of military force, the raising and appropriation of money, the administration of justice and criminal law, and the organization and administration of public services are given to the national government by the Constitution. Are these powers sufficient to meet all present and possible international responsibilities? The states originally had full power to meet international responsibilities except as restricted by their own constitutions and they retain that power except as expressly or impliedly limited by the Federal Constitution. The delegation of power to the national government does not of itself deprive states of concurrent power, unless the power is by nature exclusive.10 The express prohibition of treaty-making and of agreement-making without consent of congress prevents them from extraditing criminals without express authorization by congress or treaty. Justice Taney held in 1839 that extradition belonged "exclusively to the Federal Government" and the action of Governor Jennison of Vermont in issuing a warrant for the arrest of one Holmes charged with murder in Canada was "repugnant to the Constitution of the United States." 8 Borchard, op. cit., p. 184. • Ibid., pp. 286, 308. 10 Cooley v. Board of Port Wardens, 13 How. 294. 11 Holmes v. Jennison, 14 Pet. 540, 579 (1840); Moore, Digest, 4: 242. However, the states still have power to meet many international responsibilities involving action within their own borders. Thus the jurisdiction of state courts usually extends to many cases involving the enforcement of treaty provisions such as those according civil rights, rights of property and inheritance to resident aliens, and in such cases, under the Federal Constitution they are obliged to apply the treaty as the supreme law of the land. State courts usually also have jurisdiction under common law to give justice to aliens in civil cases and to punish many offenses against the law of nations such as libels and conspiracies against foreign governments. The state executive ordinarily has power to employ the militia to preserve order and accord aliens within the state's territory the protection required by international law and treaty and state legislatures generally have power to pass acts for the punishment of offenses against international law.12. 91. National Power to Meet International Responsibilities. Does the national government have power to take over the entire burden from the states? Authorities say yes, and have rested on three theories. The argument drawn from the assumed enjoyment by the national government of sovereign powers with respect to matters transcending state limits has been discussed and found wanting.13 Repudiating this argument, Willoughby says:14 Starting from the premise that in all that pertains to international relations the United States appears as a single sovereign nation, and that upon it rests the constitutional duty of meeting all international responsibilities, the Supreme Court has deduced corresponding federal powers." This argument seems equally untenable. It commits the fallacy of deducing powers from responsibilities which Professor Willoughby himself denounced later in the same book.15 The supreme court has not relied on such an argument but on specific delegations of power by the Constitution ;16 12 Infra, secs. 98, 110, 136. 13 Supra, sec. 71. 14 Willoughby, op. cit., p. 64. See also ibid., p. 451. 15 See infra, sec. 93. 16 U. S. v. Arjona, 120 U. S. 479, 483; Moore, Digest, 2: 430. “As all official intercourse between a State and foreign nation is prevented by the Constitution and exclusive authority for that purpose given to the United States, the National Government is responsible to foreign nations for all violations by the United States of their international obligations, and for this reason Congress is expressly authorized to define and punish ... offenses against the law of nations.” In addition to the clause here referred to, the "necessary and proper" clause accords the national government powers adequate to meet all international responsibilities, derived from valid acts or commitments made by national organs.17 92. Theory of Inherent Executive Power to Meet International Responsibilities How is the power to meet international responsibilities distributed among the departments of the national government? Hamilton, Roosevelt and others have considered the President empowered to take measures for meeting all responsibilities by the first clause of Article II which vests him with the executive power of the United States." "It would not consist with the rules of sound construction, to consider this enumeration of particular authorities" (in Article II), wrote Hamilton in the Pacificus Paper, as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the cooperation of the Senate in the appointment of officers, and making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority would naturally dictate the use of general terms, and would render it improbable that specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the Constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government the expressions are, 'All legislative powers herein granted shall be vested in a Congress of the United States.' In that which grants the executive power, the expressions are, 'The executive power shall be vested in a President of the United States.' This enumeration ought, therefore, to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free govern 17 Infra, sec. 95. |