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142. Practice in Submission of Disputes to Arbitration.

Although under the League of Nations Covenant, apparently any question involving either of these obligations should be considered justiciable, it appears that in the past states have been very reluctant to consider disputes relating to the performance of political acts, even when required by treaty, as fully justiciable. They have been unwilling to be controlled by any authority other than their own consciences in questions involving sovereignty, such as the method by which guarantees are to be fulfilled or laws enforced within their own territory. Thus Lord Derby said of the Luxemburg neutralization guarantee: "We are bound in honor-you cannot put a legal construction upon it-to see in concert with others that these. arrangements are maintained." 37 And President Wilson said of the guarantee in Article X of the League of Nations Covenant: 38

"It is a moral, not a legal, obligation, and leaves our Congress absolutely free to put its own interpretation upon it in all cases that call for action. It is binding in conscience only, not in law.”

The North Atlantic Fisheries arbitration court seemed to sanction the same view when it refused to hold that Great Britain was bound to gain American assent to fishery regulations within those territorial waters in which the United States claimed a treaty servitude: 39

"The right to regulate the liberties conferred by the treaty of 1817 is an attribute of sovereignty, and as such must be held to reside in the territorial sovereign unless the contrary be provided."

In practice claims for reparation have been the type most frequently submitted to arbitration, though cases involving the limits of jurisdiction such as boundaries, public vessels, etc., have occasionally been so settled.

where each man is judge of the limits of his own competence. Moral rights and duties may exist in a society not organized at all. (Supra, sec. 140.) The family of nations has passed from the last to the second stage and is slowly advancing to the first. (Infra, sec. 142; Wright, Col. Law Rev., 20: 147-148.)

37 Hansard, Debates, 3d Ser., 187: 1922; Hall, op. cit., p. 355.

38 Statement to Senate For. Rel. Committee, Aug. 19, 1919, 66th Cong., 1st sess., Sen. Doc. 106, p. 502.

39 Wilson, The Hague Arbitration Cases, Boston, 1915, p. 154.

B. Power to Interpret National Obligations.

143. By National Political Organs: Congress.

The agencies competent to interpret and apply international law and treaty, and thereby to decide upon the existence of national obligations, may be classified as (1) national political organs, (2) international political organs, (3) national judicial organs and (4) international judicial or quasi-judicial organs.

Political questions according to the courts are beyond their competence and must be left to the political departments. Thus they have held that it belongs to the political departments to decide whether or not a treaty has been terminated and until such decision is given the courts will continue to apply it as municipal law. The principle has been, that the organ with power to fulfill an alleged political obligation is competent to decide whether the obligation really exists.

"Where the construction of a treaty is a matter of national policy," wrote Secretary of State Bayard, "the authoritative construction is that of the political branch of the government. It is the function of the Executive or of Congress, as the case may be." 41

So Congress has asserted that it alone can interpret responsibilities claimed to oblige an appropriation of money, a declaration of war or other act exclusively within its control. As has been pointed out, if the President as the representative organ should interpret such a responsibility, his interpretation would bind the United States under international law, 42 but in recognition of the constitutional principle he has not usually done so. Thus Secretary of State Bayard refused to authorize an unconditional signature of a declaration interpreting the Submarine Cable Convention of 1884:43

"It is to be observed," he wrote, "in this connection that the treaty in question is not self-executing, and that it requires appropriate legislation to give it effect. If, under these circumstances, the Executive should now as40 Infra, sec. 182.

41 Mr. Bayard, Sec. of State, to Mr. McLane, Min. to France, Nov. 24, 1888, Moore, Digest, 5: 209. See Martin v. Mott, 12 Wheat. 19, infra, sec. 223, note 97.

42 Supra, secs. 34, 38.

sume to interpret the force and effect of the convention, we might hereafter have the spectacle, when Congress acted, of an Executive interpretation of one purport and a different congressional interpretation, and this in a matter not of Executive cognizance."

144. By National Political Organs: The Senate.

The Senate, in consenting to the ratification of treaties, has decided upon the action necessary to meet responsibilities created by preliminaries of peace, protocols and other agreements requiring the negotiation of subsequent treaties. So the Senate assumed the right to decide whether or not ratification of the Treaty of Versailles was required in fulfillment of the responsibilities undertaken by the President's exchange of notes with the Allied powers of November 5, 1918, and the armistice with Germany of November 11. So also the Senate has asserted its right to decide whether a particular controversy is within the scope of a general arbitration treaty, and has therefore insisted upon a voice in the conclusion of the compromis submitting a particular case to arbitration. The latter claim has not been admitted by Presidents or supported by the better authorities, who have held that the power to apply a general treaty to particular cases is not a political question and may be delegated.45 With reference to general and permanent interpretations of treaties or agreements, however, the President has admitted the Senate's claim.

"Had the protocol varied the treaty, as amended by the Senate of the United States," wrote President Polk in reference to a protocol explaining the treaty of Guadaloupe Hidalgo with Mexico, "it would have no binding effect." 46

Apparently the presumption that the President speaks for the nation would generally be superseded in such a case by the duty of foreign nations to acquaint themselves with the authority in the United States competent to make international agreements, and the United States would not be bound by such general interpreta

43 Note cited, supra, note 41.

44 Supra, sec. 30, note 53.

45 Supra, sec. 62.

46 Moore, Digest, 5: 208; see also supra, secs. 27, 28, 38, and infra, sec.

tion unless the foreign nation had reason to suppose it had been consented to by the proper authorities."

145. By National Political Organs: The President.

Where power to fulfill responsibilities is vested in the President, he may decide what action is necessary. Thus Presidents have often decided when the circumstances contemplated by treaties or agreements of guarantee and protection, such as those with Colombia (1846), Mexico (1882-1894), Cuba (1903) and Hayti (1916), exist, and on their own responsibility have moved troops or war vessels.48 In his message of December 7, 1903, President Roosevelt explained at length his interpretation of the treaty of 1846 with Colombia. By Article 35 of this treaty the United States had "guaranteed, positively and efficaciously to New Granada, (Colombia) . . . the perfect neutrality of the ... Isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists; and, in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory." In fulfillment of this guarantee President Roosevelt had ordered the war vessel Nashville to Colon, with instructions: 49

"In the interests of peace make every effort to prevent Government troops at Colon from proceeding to Panama. The transit of the Isthmus must be kept open and order maintained."

With this action, the insurrection soon ended in success, and President Roosevelt promptly recognized the New Republic of Panama. In the message he called attention to previous occasions from 1856 to 1902, in which the United States had been obliged to exercise a "police power" in connection with this guarantee and the President had ordered sailors and marines to land and to patrol the Isthmus.50

47 Supra, sec. 24.

48 Taft, Our Chief Magistrate, pp. 85-87.

49 Richardson, Messages, 10: 566.

50 Ibid., 10: 664.

146. By International Political Organs.

A political interpretation of national obligations is not necessarily unilateral. Undoubtedly agreement is a more satisfactory method of reaching a decision and has been judicially approved. Thus said Justice Story for the Supreme Court: 51

"The parties who formed this treaty, and they alone, have a right to annex the form of a passport. It is a high act of sovereignty, as high as the formation of any other stipulation of a treaty. It is matter of negotiation between the governments. The treaty does not leave it to the discretion of either party to annex the form of the passport; it requires it to be the joint act of both."

"The interpretation of a treaty in case of difficulty," said the French Court of Cassation, "can result only from a reciprocal agreement of the two governments." 52

53

An interpretation by political agreement would ordinarily require negotiation through the Department of State, acting either through the Secretary of State at Washington or through a diplomatic officer in the foreign capital. All claims must be presented to the Department of State, not to the President direct or to Congress. If claims of American citizens upon foreign governments, they must be presented in proper form and with ample evidence, but the department reserves full discretion to refuse to press them. If claims from foreign citizens or governments against the United States, they must be presented officially as from the government of the claimant's state. The Department of State will not consider claims from foreign individuals, only from recognized governments.55

However, the department is free to accept an offer of mediation by a foreign government, or to submit the controversy to a council of conciliation, commission of inquiry or other body set up to discover facts and agree on recommendations.56 Such recommendations are not binding upon the political organs of the government 51 The Amiable Isabella, 6 Wheat. 1, 71-73 (1821).

52 Dalloz, Juris, Gen., Supt., t. 17 (1896), s. v. Traité, Int., No. 14.
53 Borchard, op. cit., pp. 355, 653; Moore, Digest, 4: 687, 781; supra, sec.

12, note 22.

54 Moore, Digest, 6: 609 et seq.

55 Ibid., 6: 607-609; 4: 694.

56 Ibid., 6: 1012 et seq.; Borchard, op. cit., p. 366 et seq.

PROC. AMER. PHIL., SOC., VOL. LX., U, MARCH 11, 1922.

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