when said claims are of sufficient importance to warrant the expense of arbitration." "The decision shall be rendered in accordance with the principles of international law." By the II Hague Convention of 1907 armed force cannot be used for the recovery of contract debts between governments unless an offer of arbitration has been refused, and by a large number of treaties concluded in 1908 for five years, most of which have since been renewed, the United States has agreed to submit to arbitration "Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two contracting parties and which it may not have been possible to settle by diplomacy" and which "do not affect the vital interests, the independence, or the honor of the two Contracting States, and do not concern the interests of third parties." 72 The League of Nations Covenant (Art. XIII) recommends the submission of specified types of cases to arbitration or to the proposed International Court of Justice but does not require it. In making such submissions, if no general treaty exists, a special treaty to which the Senate has consented is necessary for the submission to arbitration of national claims or claims by foreign states or individuals against the United States." Claims of American citizens against foreign states may be submitted on the basis of a compromis under authority of the President or Secretary of State, since it is within the discretion of these officials to decide whether such claims shall be pressed at all." Even if an arbitration of such claims results successfully for the United States the government may withhold the money from the individual claimant if it discovers fraud. Thus claimants in the L'Abra and Wyle claims against Mexico were unable to compel the Secretary of State by mandamus to turn over to them the money paid by Mexico to the United States as a result of the arbitration." The United States govern 72 Malloy, Treaties, p. 814. 73 Foster, Yale L. J., 11: 77; Moore, Digest 5: 211. 74 J. B. Moore, Pol. Sci. Quar., 20: 403; Willoughby, op. cit., p. 475; Moore, Digest, 5: 211. 75 L'Abra Silver Mining Co. v. U. S., 175 U. S. 423 (1899); Foster, The Practice of Diplomacy, 374-377. ment had discovered fraud after the arbitration and ultimately returned the money to Mexico. Where a general arbitration treaty exists, the better authorities hold that the President may submit claims falling within it on his own authority, unless the general treaty requires otherwise. The Senate however has taken a different view.76 Arbitration awards are considered final and obligatory and have practically always been met by the United States." In the few cases where they have not, the United States has contended that the arbitration court exceeded or abused its powers." 78 Unless such exception is taken at once by the political organs, the courts hold arbitration awards authorized by treaty the supreme law of the land."9 79 Although often recommended, no international court of justice was established until 1921. The International Prize Court to be set up by the XII Hague Convention of 1907 never came into being. Such a court, authorized by Article XIV of the League of Nations Covenant, was established by action of the Second Assembly of the League, September, 1921, on the basis of a code prepared by a commission of jurists in 1920 and approved with modifications by the council and by the First Assembly and ratified at that time by 29 members of the League.80 An international court of claims before 76 Willoughby, op. cit., p. 475, supra, sec. 62, infra, sec. 163. The AngloAmerican claims treaty of 1910, differing from those of 1853 and 1871, requires that each schedule of claims under the treaty be approved by the Senate as a special treaty (Charles, Treaties, p. 50, and Sir Cecil Hurst in British Year Book of International Law, 2: 193). 77 I Hague Conventions, 1907, pp. 81-83. 78 Moore, Digest, 7: 59-62; Darby, International Tribunals, 1904, p. 785, No. 46. 79 Comegys v. Vasse, 1 Pet. 193, 212; La Ninfa, 75 Fed. 513 (1896); Moore, Digest, 7: 55. 80 For draft plan of organization by Root et al. see Am. Jl. Int. Law, Supp., 14: 371 (Oct., 1920), and for code as adopted see A League of Nations, 4: 281 et seq. 13 additional states had signed but not ratified the code in September 1921 and 13 states had accepted the clause providing for compulsory jurisdiction, ibid., 278, 291. ntly. There is foreign gitives," inations Federal is exclu ars that with for eld exists pon which the United ownership ight desire med essenre it could e land. If at Chicago, Erie Canal, consent of portation of line of the strict, there obtain the in removing 1 of cholera, e height of in providing ut obtaining Willoughby, ment had discovered fraud after the arbitration and ultimately Arbitration awards are considered final and obligatory and have Although often recommended, no international court of justice was established until 1921. The International Prize Court to be set up by the XII Hague Convention of 1907 never came into being. Such a court, authorized by Article XIV of the League of Nations Covenant, was established by action of the Second Assembly of the League, September, 1921, on the basis of a code prepared by a commission of jurists in 1920 and approved with modifications by the council and by the First Assembly and ratified at that time by 29 members of the League.80 An international court of claims before 76 Willoughby, op. cit., p. 475, supra, sec. 62, infra, sec. 163. The AngloAmerican claims treaty of 1910, differing from those of 1853 and 1871, requires that each schedule of claims under the treaty be approved by the Senate as a special treaty (Charles, Treaties, p. 50, and Sir Cecil Hurst in British Year Book of International Law, 2: 193). 77 I Hague Conventions, 1907, pp. 81-83. 78 Moore, Digest, 7: 59-62; Darby, International Tribunals, 1904, p. 785, No. 46. 79 Comegys v. Vasse, 1 Pet. 193, 212; La Ninfa, 75 Fed. 513 (1896); Moore, Digest, 7: 55. 80 For draft plan of organization by Root et al. see Am. Jl. Int. Law, Supp., 14: 371 (Oct., 1920), and for code as adopted see A League of Nations, 4: 281 et seq. 13 additional states had signed but not ratified the code in September 1921 and 13 states had accepted the clause providing for compulsory jurisdiction, ibid., 278, 291. which private individuals might bring cases against governments has also been suggested. With reference to such a court Borchard says: 81 "The divorce of pecuniary claims from political considerations a union, which now not only results in inexact justice, but often gross injustice, and the submission of such claims to the determination of an independent tribunal, must make a universal appeal to man's sentiment for justice." C. Power to Perform National Obligations. 149. Appropriations. A decision having been made as to what action is required in order to meet the obligation, it becomes the duty of organs empowered thereto by the Constitution to perform those acts. Under the power to raise taxes for the general welfare, Congress undoubtedly has power to make appropriations for this purpose. Where Congress itself has decided that the obligation is due it will of course make the appropriation. Where a decision by a national court acting within its jurisdiction or an international arbitration court has been given, appropriations have been made as a matter of course. Where the Department of State has admitted the validity of a claim Congress has generally made the appropriation. Thus on January 30, 1896, Secretary of State Olney, after discussion with the Italian Ambassador with reference to the lynching of three Italian citizens in Colorado, reported to the President: "The facts are without dispute and no comment or argument can add to the force of their appeal to the generous consideration of Congress." 82 President Cleveland said in his message to Congress of February 3, 1896: 83 "Without discussing the question of the liability of the United States for these results, either by reason of treaty obligations or under the general rules of international law, I venture to urge upon the Congress the propriety of making from the public Treasury prompt and reasonable pecuniary provision for those injured and for the families of those who were killed." 81 Borchard, op. cit., p. 864. See also pp. 328, 373, 443. |