aliens may bring suits against a citizen in the federal district court if over $3,000 is in controversy or if "for a tort only, in violation of the law of nations or of a treaty of the United States." 111 They may also bring suits against citizens under many special types of law, whatever the matter in controversy, such as suits within the admiralty and maritime jurisdiction, suits under the copyright, patent, trademark, commercial, bankruptcy, immigration laws, etc.112 Also all suits in which a deprivation of constitutional right is claimed.113 Even if they begin action in a state court, appeal lies from the highest state court to the Supreme Court of the United States if a right under the Constitution, an act of Congress, a treaty or any authority under the United States is claimed.114 The courts are not ordinarily open to civil suits by one alien against another,115 though in admiralty actions in rem arising under the general maritime law on the high seas, where the two aliens are of different nationality, such cases will usually be heard.118 Cases against aliens may in many cases be removed to federal courts by the defendant if they are not brought there originally.117 134. Conclusion. The enforcing of international law and treaty in the territory of the United States requires executive and judicial action. The President must utilize the military and administrative forces to preserve order and prevent violations of international law and treaty. The criminal courts must punish offenders against international law and treaty, and the civil courts must be prepared to afford relief to aliens with just claims against individuals. Under the American constitutional system the President has power to direct existing military and civil administrations, to enforce the laws and treaties and pre 111 Ibid., sec. 24, pars. I, 17. 112 Ibid, sec. 24, pars. 3, 7, 8, 19, 22. 113 Ibid., sec. 24, pars. 12-14. 114 Ibid., sec. 237, as amended Dec. 23, 1914, 38 Stat. 790, and Sept. 6, 1916, 39 Stat. 726. 116 Montalet v. Murray, 4 Cranch 46. 116 The Belgenland, 114 U. S. 355. 117 Ibid., secs. 28, 31; supra, sec. 105. vent obstructions of national services. However, the tendency has been to confine this action to circumstances in which it is authorized by specific legislation. The state courts are bound to apply treaties and are open to civil suits by aliens but federal courts are dependent on statute for jurisdiction. The broad grants of jurisdiction in admiralty matters, suits involving treaties, and the civil rights of aliens, give the federal courts an opportunity to afford relief in civil matters, but for enforcing criminal penalties for violations of international law or treaty, they must be endowed with specific power. Congress must legislate or the United States may find itself without the means necessary for exercising due diligence in enforcing international law and treaties within its territory. CHAPTER XIII. THE POWER TO MEET INTERNATIONAL RESPONSIBILITIES THROUGH PERFORMANCE OF NATIONAL OBLIGATIONS. 135. Nature of this Responsibility. The responsibility of the nation for the non-fulfillment of its obligations requires, not only that each organ of the government employ its powers to the fullest extent to perform all acts, which are specifically required by treaty, agreement, contract, or the operation of international law, but also that organs exist with powers sufficient to assure a full performance. For acts of government organs, the responsibility of the nation is met if all organs confine their exercises of power within the limits of international law and treaty. For acts or omissions of individuals, the responsibility of the nation is met if all organs employ "due diligence" to enforce order and the observance of international law and treaty by persons within their jurisdiction. The present responsibility can be met only if organs exist competent and willing to execute specific obligations. 136. Performance of Obligations by the States. The states cannot perform national obligations. They cannot themselves contract treaty or political obligations with foreign nations. They may enter into contract with foreign individuals, or nations, as by sale of bonds or other securities, but a failure to pay these would not involve a national responsibility so long as the foreign bondholder has as favorable an opportunity to collect as the domestic.2 Some of the states have established courts of claims in which they may be sued, though the general principle of the non-suability of sovereigns applies to them. While under the XIth amendment states cannot be sued by foreign individuals in the fed 1 Infra, sec. 157. 2 Supra, sec. 89, pars. 2, 3. • Willoughby, op. cit., p. 1105; Wright, Enforcement of Int. Law, p. 103. 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. 6 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 'Wright, Am. Jl. Int. Law, 13: 243, 245. 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. |