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CHAPTER IV.

CONCLUSIVENESS OF THE ACTS AND UTTERANCES OF NATIONAL ORGANS UNDER INTERNATIONAL LAW.

To how great an extent are foreign governments expected to know American constitutional law defining the competence of governmental organs? The answer varies according as the issue relates to (a) the making of a national decision on fact or policy, (b) the making of a treaty or agreement, (c) the meeting of an international responsibility.

A. With Reference to the Making of National Decisions.

21. Acts of the President.

Foreign nations need not know and they are not entitled to discuss the constitutional competence of organs of the United States making national decisions on fact or policy. They must accept the assertion of the President as final. Thus in a conversation with Citizen Genet in 1793, Secretary of State Jefferson refused to discuss the question of whether it belonged to the President under the constitution to admit or exclude foreign agents. "I inform you of the fact," he said, "by authority of the President." This principle was also illustrated by the prompt acceptance by foreign nations of President Lincoln's proclamation of blockade on April 19, 1861, as a proclamation that war existed. The power of the President to thus proclaim war without authority of Congress was questioned in the United States and in the decision finally given by the Supreme Court sustaining the President's act, three justices out of seven vigorously dissented. However, since the fact of war was a matter subject to foreign cognizance, foreign nations would 1 Moore, Digest, 4: 680.

2"It was, on the contrary, your own government which, in assuming the belligerent right of blockade, recognized the Southern States as Belligerents. Had they not been belligerents the armed ships of the United States would have had no right to stop a single British ship upon the high seas." Earl Russell, British Foreign Minister, note, May 4, 1865. Moore, Digest, I: 190.

3 The Prize Cases, 2 Black 635; Moore, Digest, 1: 190, 7: 172; Willoughby, Constitutional Law, 2: 1210.

doubtless have been justified in issuing neutrality proclamations, even had they not been obliged to consider the President's act conclusive.*

Aside from declarations of war and recognitions of new states, governments and neutrality," the President's assertions may be considered authoritative by foreign nations when they relate to the termination of war, the termination of a treaty, or the existence of a national sentiment or policy. Thus Great Britain officially recognized the President's proclamation of the termination of the Civil War,' and Mr. C. F. Adams, the American Minister to Great Britain, insisted that the British government was incompetent to inquire into the competence of the Secretary of State to give notice of the denunciation of the Great Lakes disarmament treaty of 1817 or to withdraw that notice.

"It could," he said, "only accept and respect the withdrawal as a fact." The question of competency, "being a matter of domestic administration affecting the internal relations of the executive and legislative powers," in no wise concerned Great Britain. The raising by her of a question as to "the auhority of the executive power" in the matter, would have constituted "an unprecedented and inadmissible step in the international relations of governments."

22. National and State Statutes.

Thus statements of a decision on fact or policy, authorized by the President, must be accepted by foreign nations as the will of the United States. We have noticed that acts prima facie law are subject to international cognizance whether issuing from state or

4 Dana, note to Wheaton, pp. 37-38; Willoughby, op. cit., p. 1212; Moore, Digest, 1: 189.

5 The recognition power is vested in the President. See Moore, Digest, 1: 243-248, and "Memorandum on the method of recognition of foreign governments and foreign states by the government of the United States, 1789-1892. 54th Cong., 2 Sess., Sen. Docs. 40, 56; The Divina Pastora, 4 Wheat, 52; Corwin, op. cit., p. 71. See also infra, sec. 192.

Lord Salisbury considered the interpretation of the Monroe Doctrine given by President Cleveland and Secretary of State Olney as subject to international cognizance as an official expression of American opinion. See Moore, Digest, 6: 560. See also supra, sec. 20.

U. S. Dip. Correspondence, 1865, 1: 409; Moore, Digest, I: 187.

* Report of Mr. Foster, Sec. of State, to the President, Dec. 7, 1892, H. Doc. 471, 56th Cong., 1st Sess., pp. 4, 36; Moore, Digest, 5: 169–170.

national organs. They may not be accepted as definitive however, if their validity is denied by the President. Thus state constitutional or legislative provisions are not really law if in conflict with the national constitution, laws, or treaties; and acts of congress or treaty provisions are not law if in conflict with the Constitution. If the President discovers such a conflict and denies the validity of the purported law his interpretation is conclusive for foreign nations, even though it differs from the view or court.10

23. Acts of Subordinates to the President.

An act by a subordinate, purporting to be under authority of the President, may not be accepted by foreign nations as the will of the United States if promptly repudiated. Thus the salute to the insurgent Brazilian navy in the harbor of Rio Janeiro, authorized by Commodore Stanton in 1893, could not be considered a recognition of that party as the government of Brazil in view of the President's prompt repudiation of this act.11

With reference to the making of national decisions, foreign nations may accept the voice of the President as authoritative. Purported national or state laws and the acts or utterances of subordinates to the President, presumably subject to his instructions, are the only other pronouncements on this subject which may be considered authoritative, and they cannot, if their validity is promptly denied by the President. On this subject foreign nations are not expected to know the constitutional provisions defining the competence of national organs.

B. With Reference to the Making of International Agreements. 24. Foreign Nations Presumed to know the Constitution.

In making international agreements, however, foreign nations must look back of the President's assertions to the constitution itself.12 They are presumed to know, and if they do not, are entitled 9 Supra, sec. 15.

10 See discussion of the Dillon Case, Moore, 5: 80, 167, and infra, sec. 46. 11 Moore, Digest, I: 24.

12" The Constitution of the United States, like the Constitution of Brazil, points out the way in which treaties may be made and the faith of the nation duly pledged. . . . Of such provisions in each other's constitutions

to demand proof of the constitutional competence of all organs or agents assuming to make agreements for the United States, before exchanging ratifications. "Qui cum alio contrahit, vel est vel debet esse non ignarus condicienis eius," said Ulpian.18 Furthermore, the authority of agents of the state is usually strictly construed. "Those dealing with them are ordinarily bound by their actual authority and not as in private law by their ostensible authority." 14 This, however, is subject to certain exceptions. The international court of arbitration in the Metzger case held that "limitations upon official authority, undisclosed at the time to the other government," do not" prevent the enforcement of a diplomatic agreement." 15

25. Signature under Authority of the Treaty Power.

The first step in the making of international agreements, if of a formal and permanent character, is exchange of "full powers" by governments are assumed to take notice." Mr. Gresham, Secretary of State, to Mr. Mendonça, Brazilian Minister, October 26, 1894, Moore, Digest, 5: 361.

13 Digest of Justinian, Lib. L, Tit. xvii, cited by Crandall, Treaties, Their Making and Enforcement, p. 2, who adds: "To know the power of him with whom negotiations are conducted requires a knowledge not only of his special mandate and powers, the exhibition of which may always be demanded before the opening of negotiations, but also of the fundamental law or constitution of the state which he professes to represent, and of any limitations which may result from an incomplete sovereignty." Gefficken, in a note to Heffter, Das Europaische Völkerrecht der gegenwart, p. 201, says: "Without doubt a government should know the various phases that the project must follow at the hands of the other contractant; it is not able to raise reclamations if the treaty fails in one of these phases."

14 Borchard, Diplomatic Protection of Citizens Abroad, p. 184.

15 Metzger (U. S.), Haiti, Oct. 18, 1894, U. S. For. Rel., p. 262, cited Borchard, loc. cit. See also Trumbull (Chile) v. U. S., Aug. 7, 1892, Moore, International Arbitrations, p. 3569.

16 The conclusion of a treaty involves three steps: (1) exchange of full powers, negotiation and signature, (2) consent to ratification with or without reservations and ratification, (3) exchange of ratifications. Often legislation must be passed before the treaty becomes executable and "putting into effect" may be considered a fourth step in the conclusion of a treaty. In the United States legislation is not needed for self-executing treaties which are executable after proclamation by the President. However, under international law, the treaty is complete and binding after exchange of rati

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the negotiators. Although these, if satisfactory, originally signified an actual full power of the negotiators to bind the state within the limits of their instructions, at present they are understood to mean that the negotiator is vested merely with the powers of the organ under whose authority he acts, usually in practice the representative organ. Suppose the organ giving full powers" to the negotiator is the full treaty-making power of the state. It was held by early publicists that in such cases the document when signed bound the state and ratification became a mere form which could not be refused except for the most cogent reasons.18. Though recent opinion is less definite, yet it holds that a strong obligation to ratify exists1o and this has been the view of the United States. Thus in 1802 and in 1819 the Secretary of State insisted that the Spanish crown was under an absolute obligation to ratify the treaties which had been made within the instructions of the negotiators acting under full powers of the Crown.20 The United States has also fications and the parties are responsible for a failure to take measures necessary to put them into effect. See Wright, Am. J. of Int. Law, 10: 710 (Oct., 1916), Crandall, op. cit., p. 345; Anson, The Law and Custom of the Constitution, 3d ed., Oxford, 1907, vol. 2, pt. 1, p. 54.

17 Wheaton, International Law (Dana, ed.), pp. 337, 338; Crandall, op. cit., p. 2; Moore, Digest, 5: 184, 362; Satow, Diplomatic Practice, London, 1917, 2: 273; Harley, Am. Jl. Int. Law, 13: 389 (July, 1919), Wright, Minn. Law Rev., 4: 18.

18 Grotius, De Jure Belli ac Pacis, c. 11, sec. 12; Vattel, Le Droit des Gens, 2, c. 12, sec. 156; Martens, Précis des Droit de Gens, c. 1, sec. 36.

19 After citing five authorities supporting an absolute obligation to ratify, thirteen for a moral obligation, eight for no obligation at all, and the circumstances of ten causes célèbres in which ratification was refused, Harley, loc. cit., concludes, "It would seem that the weight of opinion holds that a moral obligation to ratify exists." See also Moore, Digest, 5: 187; Scott, The Reports of the Hague Conferences of 1899 and 1907, London, 1917, introduction, p. xxcii; Hall, International Law (Higgins, ed.), p. 341. 20 A claims convention signed with Spain in 1802 was rejected by the Senate but on new evidence being presented, the Senate changed its mind. Now, however, Spain refused to ratify. "Were it necessary," replied Secretary Madison, "to enforce these observations by an inquiry into the right of His Catholic Majesty to withhold his ratification in this case, it would not be difficult to show that it is neither supported by the principles of public law, nor countenanced by the examples which have been cited." Madison to Yrujo, Oct. 15, 1804, Am. St. Pap., For. Rel., 2: 625. The con

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