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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. J. 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.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.

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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

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

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

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."

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"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.

tainly an attempt to apply the two common law principles referred to leads to an apparent contradiction. By the first the state must submit to suit, by the second it cannot be sued.

140. Justiciable and Non-justiciable Questions.

In practice a partial reconciliation of the two principles has been reached through the consent of states to be sued or to submit to the decision of an international authority in certain types of The distinction has been made between justiciable and nonjusticiable questions. States have admitted that questions of the former type ought to be settled by impartial external authority and have actually so settled them, while in the latter type of questions, they have tenaciously maintained the doctrine that the state cannot be sued and each has acted as judge in its own case.25

This distinction does not aid us to determine what questions are actually justiciable nor does the similar distinction often made between legal and moral obligations. It is doubtless true, as President Wilson and Vattel before him pointed out, that when the element of judgment exists, the decision belongs to the conscience of the party alone, the obligation is moral, and hence the question is nonjusticiable. But this does not tell us in what cases the element of judgment exists. Nor do we get farther along by the definition of non-justiciable questions, attempted in many general arbitrations, as questions involving "national honor, vital interests and independence." 27 These general terms can be made as broad or limited as the inclination of the parties suggests in any particular case. Attempts to define non-justiciable questions have proved unsuccessful, but this does not mean that the distinction is worthless. The truth is that with the theory of national sovereignty, all national obligations, whether founded on treaty or general international law, are presumed to be moral obligations and hence non-justiciable.28

25 Crandall, op. cit., p. 358.

26 President Wilson, Statement to Senate For. Rel. Committee, Aug. 19, 1919, Hearings, 66th Cong., 1st sess., Sen. Doc. No. 106, p. 515; Vattel, Le Droit des Gens, Introduction, sec. 17.

27 See Treaty U. S.-Great Britain, 1908, art. 1, Malloy, Treaties, p. 814. 28 See Infra, sec. 142.

But states have in the past consented to submit certain controversies to legal decision and by classifying these controversies we can discover what types of dispute have actually been considered justiciable. We can thus by induction arrive at a definition of justiciable questions and regard all others as non-justiciable. Such a definition of justiciable questions has been attempted in Article XIII of the League of Nations Covenant:

"Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration." 28a

141. The Obligation of Treaties and International Law.

Treaties are presumably made to be kept. "It is an essential principle of the law of nations," asserted the London protocol of 1871, "that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement." 20 The same principle was emphasized by the scrap of paper incident of 1914 and implies that treaties should be interpreted by impartial authority.

31

Clearly if international law deserves the name, its obligations must be of a legal character and controversies relating to them must be justiciable. 30 Most text-writers recognize the distinction between obligations of international law and requirements of international courtesy and comity. In the latter, an element of judgment is reserved, the obligation is "imperfect" or moral, and controversies relating to them are non-justiciable, but not so with the former. In practice this distinction necessarily exists, because by definition,32 international law consists only of those rules and principles for the infraction of which nations have been accustomed to make formal international claim or protest, and hence for the settle

28a Also in State of Permanent Court of International Justice, art. 36. 29 Satow, Diplomatic Practice, 2: 131; Hall, op. cit., p. 365; Wright, Minn. Law Rev., 5: 441-443, supra, sec. 33.

30 See J. B. Moore, Am. Pol. Sci. Rev., 9: 4-6.

31 Hall, op. cit., pp. 14, 56.

32 Supra, sec. 9.

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