eral courts, there seems to be no constitutional bar to such a suit by foreign states. National statutes, however, have not provided for such a jurisdiction and commentators doubt whether it could be exercised.

In case of mob violence in the states we have seen that the national government is responsible for a lack of due diligence, and this irrespective of remedies, such as action against counties or municipalities, which the state law may give." "The Italian Government," wrote Baron Fava, Italian Ambassador, in reference to the lynching of three Italians in Erwin, Mississippi, in 1901, and in response to the American suggestion that Mississippi was responsible, "will not cease to denounce the systematic impunity enjoyed by crime, and to hold the federal government responsible therefor."

A. The Nature of National Obligations.

137. Obligations Founded on International Agreement.

National obligations may arise either (1) from express agreement or (2) from the operation of general international law.

Agreement of the nation may be evidenced by contracts with individuals, by executive or military agreements, or by conventions or treaties. Any of these instruments if made by competent authority will bind the nation. Contracts or executive agreements usually require the performance of definite acts such as the payment of money, the movement of troops, the conclusion of a treaty, but conventions and treaties often state general principles of law for the guidance of individuals as well as specific obligations to be performed by public authorities. During the nineteenth century treaties have

• Willoughby, op. cit., p. 1060. In Cherokee Nation v. Georgia (5 Pet. 1, 1831) jurisdiction was refused on the ground that the Cherokees were not a foreign nation, thus implying that if they had been jurisdiction would have existed. The only case between a state and an undoubted foreign nation is that of Cuba v. N. Car. (242 U. S. 665, 1917), but no opinion was given because of dismissal on motion of the plaintiff. See Scott, Judicial Settlement of Controversies between States of the American Union, 1919, pp. 105-106.

5 Supra, sec. 89, pars. 2, sec. 120.

Moore, Digest, 6: 849.

tended to be regulative, rather than political in character. Their predominant character has changed from that of political contracts to codes of law or administrative regulations providing for international administration in a smaller or wider circle."

A similar distinction has been recognized by American courts, in classifying certain treaty provisions as "self-executing." Practically this distinction depends upon whether or not the courts and the executive are able to enforce the provision without enabling legislation. Fundamentally it depends upon whether the obligation is imposed on private individuals or on public authorities.

"A treaty," said Chief Justice Marshall, “is in its nature a contract between two nations, not a legislative act. . . . In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, department; and the legislature must execute the contract before it can become a rule for the courts." 8

Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered. However, many treaty provisions are difficult to classify. Thus a treaty regulating the taking of seal in a defined area of Behring Sea and specifically enjoining the governments concerned to enforce the regulation imposes a primary obligation upon individuals and might seem self-executing. But it also imposes

7 Wright, Am. Jl. Int. Law, 13: 243, 245.

8 Foster v. Neilson, 2 Pet. 253, 314 (1829). See also infra, sec. 256. • Hauenstein v. Lynham, 100 U. S. 483; La Ninfa, 75 Fed. 513; The Phoebe Ann, 3 Dall. 319; Ex parte Toscano, 208 Fed. 938. There has been a question in the United States whether treaties regulating commerce and tariffs are of this kind. See infra, sec. 154.

a responsibility upon the government to prevent infractions and punish violators. Extradition treaties are of similar character. They affect primarily the individual fugitive from justice by withdrawing his right of asylum, but they also specifically require the government, to whose territory he has fled, to surrender him. In view of the constitutional principle that federal courts can only punish crimes defined by statute,10 such treaties are not self-executing in the United States, except in so far as executive action is sufficient to carry them out." They ordinarily require legislation to be effectively executed. In spite of this fact, the obligation of such treaties rests primarily upon individuals and the responsibility of the government is measured by the standard of "due diligence," whether or not the treaty specifies the steps which are to be taken in prevention and punishment.12 Thus such treaty provisions have been considered in the preceding chapter.

On the other hand certain treaty obligations are addressed solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction of postal, telegraphic or other services, the construction of buildings, bridges, lighthouses, etc. It is with the power to perform such obligations that we are here concerned.

138. Obligations Founded on General International Law.

Although all international law is said to rest ultimately upon the agreement of states,13 in fact this agreement is assumed of principles established by long practice and custom or the concurrence of authoritative writers.14 International law imposes few if in fact

10 Supra, sec. 129.

11 Supra, secs. 125-127.

12 Supra, sec. 124.

18 The Exchange v. McFaddon, 7 Cranch 116.

14 The Paquette Habana, 175 U. S. 677. See for sources of international law, Draft Code for an International Court, Art. 35, Am. Jl. Int. Law, Supp., 14: 379, Oct. 1920, and Wright, Minn. Law Rev., 5: 436.

any obligations requiring specific performance. It requires that states preserve order in their territory and exercise especial vigilance in such matters as the protection of diplomatic officers, the preservation of neutrality, the suppression of nuisances such as piracy. But here the state's responsibility is indirect. The law of neutrality requires that neutral states intern troops and vessels illegally in their jurisdiction and restore prizes illegally captured or brought within their jurisdiction, but these requirements are designed primarily as means for the enforcement of law against individuals in the neutral state's jurisdiction. Certain ceremonial observances such as exchanging salutes by public vessels, though customary, are really matters of courtesy rather than law. Doubtless good citizenship in the family of nations requires that states exchange diplomatic officers and cooperate in matters of world service; that they aid each other in the suppression of crime and administration of justice; that they attempt to prevent war by offering mediation and suggesting arbitration; but except as provided in treaty, international law does not require such acts.1

15

However, in case international law or treaty is violated, international law imposes the obligation of reparation. This may take the form of payment of money, cession of territory, the making of formal amends such as apology or salute of flag. Sometimes a demand has been made for the trial or delivery of a criminal in reparation, but it has been generally held that international law does not require such reparation.16 It is with the power to meet "claims " or demands for reparation and to perform specific obligations of contract, agreement and treaty that we are at present concerned.

139. The Determination of Obligations.

The precise determination of national obligations, by the application of the principles and rules of international law and treaty to concrete facts, has always proved a difficult problem. It is a recognized common law principle that no one should be judge in his own

16 Hall, International Law (Higgins), pp. 56-60.

16 Wright, Enforcement of Int. Law, pp. 94-100, supra, sec. 110.

17

case, and there has been judicial opinion in England to the effect that even an act of Parliament infringing this principle would be in so far void. The same principle is recognized in the federal system of the United States and a jurisdiction is established to try cases between the states of the union.18 So also in international law it has been recognized on occasion that treaties should be interpreted not by each party according to its own opinion,19 but by judicial process,20 arbitration,21 or agreement of the parties.22

However, there is another common law principle, that the state cannot be sued without its own consent. This principle is founded not only on the historical tradition that "the king can do no wrong and on legal precedents, but also on practical grounds.""

"A sovereign," said Justice Holmes for the Supreme Court, "is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."

This consideration has led Hobbes, John Austin and others to conclude, starting from the premise that the state is the only source of law, that the state cannot be subject to law and consequently international law and treaties impose only moral obligations." Cer

17 Dr. Bonham's Case, 8 Co. Rep. 107a, 114a (1600); Day v. Savadge, Hob. 85, 87 (1610); City of London v. Wood, 12 Mod. 669, 687 (1701); Thayer, Cases on Const. Law, 47 et seq.; Hobbes, Leviathan, chap. 15, Everyman ed., p. 81.

18 U. S. Const., Art. III, sec. 2.

19 "Neither of the parties who have an interest in the contract or treaty may interpret it after his own mind." Vattel, Le Droit des Gens, 1: 2, c. 17, sec. 265. See also Wright, Minn. Law Rev., 4: 29.

20 Wilson v. Wall, 73 U. S. 83, 84 (1867); Moore, Digest, 5: 208; Crandall, op. cit., p. 364.

21 I Hague Conventions, 1907, arts. 38, 82; Treaties concluded by United States with Great Britain and other countries, 1908, art. 1, Malloy, Treaties, 814; League of Nations Covenant, art. 13.

22 Crandall, op. cit., pp. 225, 387; Dalloz, Juris. Gen., Supt., t. 17 (1896), s. v. Traité Int. No. 14; Wright, Am. Jl. Int. Law, 12: 92.

23 Kawananako v. Polyblank, 205 U. S. 349, 353 (1907).

24 Hobbes, Leviathan, chap. 26, 2; Austin, Lectures on Jurisprudence, 5th ed., London, 1911, 1: 263, 278; Gray, Nature and Sources of the Law, 1909, pp. 77-81; Holland, Jurisprudence, 11th ed., pp. 53, 365.