CHAPTER II.

THE REPRESENTATIVE ORGAN OF GOVERNMent.

9. The Nature of International Law.

International law has developed in a society based upon the assumption of the complete independence of territorial states.1 This independence is commonly said to imply that the state has power to form a constitution and organize a government as it sees fit; to formulate law and administer justice within its territory according to its own notions; to formulate and pursue foreign policies and to be the sole judge of its international responsibilities. However, the contemporary and contiguous existence of many states, each with an equal independence, practically requires limitations in the exercise of these powers and the practice and usage defining these limitations constitute international law. The formulation, however, of a body of practice as law implies responsibility for its observance. Thus we may define international law as the body of rules and principles of conduct, observed within the society of independent states, for the violation of which states are habitually held responsible, by diplomatic protest, intervention, reprisals, war or other means.

1"In the fifteenth century international life was fast resolving itself into a struggle for existence in its barest form. In such condition of things no law could be established which was unable to recognize absolute independence as a fact prior to itself." W. E. Hall, Int. Law, 7th ed. (Higgins), 1917, p. 18.

2 Wilson, Handbook of Int. Law, 1910, p. 56; Hershey, The Essentials of Int. Pub. Law, 1912, p. 147; Bonfils, Manuel de droit international public, 6th ed. (Fauchille), 1912, sec. 58, p. 119; Borchard, The Diplomatic Protection of Citizens Abroad, 1915, p. 177; Wright, Am. Pol. Sci. Rev., 13: 563; Columbia Law Rev., 20: 146.

For justification of this definition and comparison with other definitions see Wright, Enforcement of Int. Law through Municipal Law in U. S., U. of Ill., Studies in the Social Sciences, 5: 12-13 and Borchard, op. cit., p. 177 et seq.

10. The Independence of States.

Of the various fields to which the independence of a state extends, it is clear that other states would be less affected by a state's constitution and form of organization than by the legislation and administration of justice in its territory. Furthermore, each of these would affect other states less than the course of its foreign policy and the interpretation of its international responsibilities. However, history has shown that the constitution and form of organization of states is not a matter of total indifference to their neighbors and international law does limit the exercise of independence even in this field, but as a corollary to limitations upon the state's external and internal activity. Acts and omissions, not institutions are the primary concern of international law, but the interrelation of the two cannot be ignored.

For example, international law requires that states, desiring to enter into relations with other states, do so through diplomatic officers exercising powers and enjoying rights and privileges fixed by international law or treaty. So also states admitting foreigners to their territory are required by international law to maintain courts acting under a procedure calculated to assure substantial justice.

Where they have not been able to do this, foreign states

Note for example the sympathy of the Holy Alliance for absolute governments and of the United States for popular governments since its foundation. (See Greene, Am. Interest in Popular Government, War Information Series, Sept., 1917, No. 8.) "A steadfast concert for peace can never be maintained except by a partnership of democratic nations. No autocratic government could be trusted to keep faith within it or observe its covenants. ... We are accepting the challenge of hostile purpose because we know that in such a government following such methods, we can never have a friend, and that in the presence of its organized power, always lying in wait to accomplish we know not what purpose, there can be no assured security for the democratic governments of the world. . . . The world must be made safe for democracy." President Wilson, War Message, April 2, 1917.

5 The classification of these officers as fixed by the treaty of Vienna 1815 has been generally accepted. Wilson and Tucker, Int. Law, 7th ed., p. 162. It is recognized that Article II, sec. 2, cl. 2 of the Constitution of the U. S., relating to the appointment of ambassadors and other public ministers, is to be interpreted according to international law. Cushing, Attorney General, 7 Op. 190, 192. Infra, sec. 236.

"Nations are bound to maintain respectable tribunals to which the subjects of states at peace may have recourse for the redress of injuries and

have habitually exercised diplomatic protection of their nationals or have insisted that permission be given them to establish extraterritorial courts for deciding cases in which their nationals are defendant."

11. The Representative Authority Under International Law.

More important for our purposes, however, is the_requirement of international law that states maintain a definite authority to which foreign states may complain of violations of international law and from which they may expect satisfaction on the basis of that law alone. This requirement appears to be a necessary deduction from the accepted principle that under international law states are responsible as units and that this responsibility is unaffected by the maintenance of their rights." Mr. Webster, Secretary of State, to Chevalier d'Argaiz, Spanish Minister, June 2, 1842, Moore, Digest, 2: 5. See also Borchard, Diplomatic Protection of Citizens Abroad, 1915, p. 213, 335; Moore, Digest, 6: 695. The obligation to establish courts punishing offenses against international law was recognized by Congress before the Constitution (See Wright, Enforcement of Int. Law, p. 221) and is recognized in the Constitution (Art. 1, sec. 2, cl. 10). The obligation of a belligerent to establish prize courts is especially well recognized. "Neutral states have a right to demand ex debito juditia that there be courts for the administration of international law sitting in the belligerent countries." (Phillimore, Int. Law, 1: 55.) See also report of British Commission on Silesian Loan controversy, 1753, American State Papers, For. Rel., 1: 494; Moore, Digest, 7: 603; Lord Mansfield in Lindo v. Rodney 2 Doug. 613, 616 (1781); Lord Stowell in the Recovery, Rob. 348 (1807). Diplomatic discussion, however, is not necessarily excluded until such judicial remedies are exhausted (infra, note 13).

7 Borchard, op. cit., p. 346.

8 Borchard, op. cit., pp. 199–201. Hall, Int. Law, 7th ed., p. 54. Wilson and Tucker, op. cit., p. 45, defines a state for purposes of international law as "a sovereign political unity." The Supreme Court has said: "the National Government is . . . responsible to foreign nations for all violations by the United States of their international obligations," U. S. v. Arizona, 120 U. S. 479, 483. Apparent exceptions to this unity of responsibility such as federal states whose constitutions permit a limited diplomatic power to the member states (Germany and Switzerland) and imperial commonwealths which in practice permit their self-governing colonies to exercise considerable diplomatic power (British Empire) (See Moore, Digest, 1: 25; Wright, Am. Jl. of Int. Law, 13: 265) prove not to be on inspection. In these cases the power of making commitments is to some extent distributed but responsibility for their execution continues unified. Thus the German Constitution

domestic law. States have uniformly refused to accept con

of 1871 made it the duty of "the Emperor to represent the Empire among nations" and foreign nations have held the imperial government responsible for the execution of treaties made by the member states. "Unquestionably," wrote Secretary of State Bryan to Ambassador Gerard on April 28, 1915, "the destruction of this vessel (William P. Frye) was a violation of the obligations imposed upon the Imperial German Government under existing treaty stipulations between the United States and Prussia, and the United States government, by virtue of its treaty rights, has presented to the Imperial German Government a claim for indemnity on account of the resulting damages suffered by American citizens." (U. S. White Book, European War No. 1, p. 88.) Germany had admitted its responsibility under the treaty in an earlier note. (Ibid.) Under the German Constitution of 1919 "The Commonwealth has exclusive jurisdiction over foreign relations" (Art. 6) and though "the states may conclude treaties with foreign countries in matters subject to their jurisdiction, such treaties require the assent of the commonwealth." (Art. 78.)

The responsibility of the British government for acts of the self-governing dominions has never been questioned and apparently remains even though these dominions are given independent representation in the League of Nations. "Disputes," said President Wilson before the Senate Foreign Relations Committee, "can rise only through the Governments which have international representation. In other words, diplomatically speaking, there is only one 'British Empire.' The parts of it are but pieces of the whole. The dispute, therefore, in the case you have supposed (dispute between the United States and the United Kingdom) would be between the United States as a diplomatic unit and the British Empire as a diplomatic unit." David Hunter Miller, technical expert at the Peace Conference, testified to the same effect:

"Senator Hitchcock: 'So that any dispute that could arise between the United States and the Dominion of Canada involves the whole British Empire?'

"Mr. Miller: 'It seems so to me, Senator.'" (66th Cong., 1st Sess., Senate Doc. No. 106, pp. 540, 422.)

Moore, Digest, 6: 309-324, especially pp. 317, 321. This ineffectiveness of municipal law extends both to the right and the remedy. Thus municipal law cannot alter the international law principles of responsibility. (Supra, sec. 89.) In a few matters, as for instance, the protection of resident aliens, international law has to a limited extent adopted the municipal responsibility of a state as the measure of its international responsibility. In such cases the principles of municipal responsibility become indirectly subject to international discussion. This, however, does not vitiate the principle stated. (Borchard, op. cit., 116, 178, 179.) Nor can municipal law deprive foreign states of remedies such as diplomatic intervention or the use of force recognized by international law, though South American States have frequently asserted the contrary. (Ibid., p. 836.)

17

stitutional limitations,10 legislative acts11 or omissions, 12 or judicial

10" The contention of Mr. Marcy in the case of M. Dillon, French consul at San Francisco, that the sixth amendment to the Constitution of the United States, which provides that an accused party shall have compulsory process for obtaining witnesses in his favor, should be considered as qualifying the general and absolute terms of the consular convention with France, was not acquiesced in by the French government, which required their flag, when raised to the mastheads of certain of their men-of-war at San Francisco, to be saluted as a reparation for the alleged indignity to their consul." Mr. Fish, Secretary of State, to Mr. Bassett, Oct. 18, 1872, Moore, Digest, 5: 81. See also Borchard, op. cit., p. 201, 226, 839, 845. Infra, sec. 31.

11 Borchard, op. cit., pp. 181, 838 et seq., Moore, Digest, 6: 309-324. There have been numerous cases in which the legislative abrogation of a treaty or the passage of laws in conflict with international law or treaty, though valid in municipal law, have proved no defense to international protests. See Moore, Digest, 5: 357, 365. For principles of municipal law governing the application of constitutions, statutes and ordinances in violation of international law, see Wright, Am. Jl. Int. Law, 11: 1, 566. China refused to accept the exclusion acts as an excuse for violations of her treaties (For references to her protests, see Moore, Digest, 4: 198, 202, 213, 235) and the U. S. Supreme Court recognized that these laws though valid in municipal law were no defense in international law. "It must be conceded that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplementary treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement (in municipal law).... The question whether our government was justified in disregarding its engagements with another nation is not one for the determination of this court. ... This court is not a censor of the morals of the other departments of the government." (Chinese Exclusion Cases, 130 U. S. 589, 600.) Hayes by vetoing an earlier act (1879) had recognized the impossibility of avoiding international responsibility by legislation. "Were such delay fraught President with more inconveniences than have ever been suggested by the interests most earnest in promoting this legislation, I cannot but regard the summary disturbance of our existing treaties with China as greatly more inconvenient to much wider and more permanent interests of the country. I have no occasion to insist upon the more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given." (Message, March 1, 1879, Richardson, Messages and Papers of the President's, 7: 519.) The matter was succinctly explained by Secretary of State Fish in 1876. "Of course, in speaking of the effect of subsequent legislation upon the provisions of a prior treaty, I refer only to the effect in the country where the legislation is enacted, and upon the officers and people of that country. The foreign nation, whose rights are invaded thereby, has no less cause of complaint and no less right to decline to recognize any internal legislation which presumes to limit or curtail rights accorded by treaty." Moore, Digest, 5: 365. Wharton, Digest, 1: 35.