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visional until they have been endorsed by other organs of the government, whose cooperation is necessary for their execution."1

6. Relation of Law and Understandings.

The writer believes that a comprehensive legal theory of the control of foreign relations must give equal weight to the powers and responsibilities derived from both constitutional law and international law. But in constructing such a theory, he has found himself forced to take account of understandings of the kind mentioned. He believes these understandings furnish the true explanation of the functioning of all systems for controlling foreign. relations and especially of that in the United States. Without them a constitutional deadlock or an international breach of faith would be probable at every important international transaction. 7. Constitutional Understandings.

The constitutional understandings are based on the distinction. between the possession of a power and discretion in the exercise of that power. The law of the constitution decides what organs of the government possess the power to perform acts of international significance and to make valid international commitments, but the understandings of the constitution decide how the discretion or judgment, implied from the possession of power, ought to be exercised in given circumstances.12 The powers given by law to various organs often overlap. Even more often, two or more organs must exercise their powers in cooperation in order to achieve. a desired end. In such circumstances, were it not for understandings, deadlocks would be chronic. The law is the mechanism, the understandings the oil that permit it to run smoothly.

8. International Understandings.

International understandings are based on the same distinction. as constitutional understandings and are often referred to as comity or imperfect rights under international law. "Our obligations to others," says Vattel, "are always imperfect when the 11 Wright, Am. J. of Int. Law, 10: 710; and infra, sec. 39.

12 Dicey, op. cit., p. 418.

decision as to how we are to act rests with us." "13 They are observed on the principle of reciprocity and are of two kinds. Thus states are accustomed to exchange certain courtesies and favors, not required by strict law. They also sometimes withhold pressure when others fail to meet the responsibilities imposed by strict law. It is with the latter kind that we are especially concerned here. As an example, international law requires that commitments to be valid be made by the proper constitutional authority, and therefore assumes that all governments are informed of the authority in foreign states with which they deal, competent to make various sorts of international commitments. International law, however, considers that commitments once made must be carried out.1 It knows nothing of constitutional restrictions making execution difficult or impossible, consequently governments are not required to know the agencies in foreign states for executing international commitments and are entitled to protest if execution fails, whatever the cause. If such protests are withheld it is by

14

virtue of an international understanding.15

Constitutional understandings suggest modes of exercising constitutional powers out of respect for international responsibilities. International understandings suggest a tolerant attitude toward certain deficiencies in the meeting of international responsibilities out of respect for constitutional limitations.

13 Vattel, The Law of Nations, Introduction, sec. 17; see also Phillimore, Commentaries on Int. Law, 1: 161, sec. 163; Hall, Int. Law, 7th ed. (Higgins), pp. 14, 56; Woolsey, Int. Law, sec. 24; Davis, Elements of Int. Law, 4th ed. (Sherman), pp. 92, 116; Wright, The Understandings of Int. Law, Am. J. of Int. Law, 14: 568 (Oct., 1920).

14 Wright, Columbia Law Rev., 20: 121-122; and infra, sec. 39.

15 Turner v. Am. Baptist Union, 5 McLean 347 (1852). See also Wright, Am. J. of Int. Law, 10: 709, 716, and infra, sec. 39.

PART II.

THE POSITION OF THE FOREIGN RELATIONS POWER UNDER INTERNATIONAL LAW.

CHAPTER II.

THE REPRESENTATIVE ORGAN OF GOVERNMENT.

9. The Nature of International Law.

International law has developed in a society based upon the assumption of the complete independence of territorial states.1 This independence is commonly said to imply that the state has power to form a constitution and organize a government as it sees fit; to formulate law and administer justice within its territory according to its own notions; to formulate and pursue foreign policies and to be the sole judge of its international responsibilities. However, the contemporary and contiguous existence of many states, each with an equal independence, practically requires limitations in the exercise of these powers and the practice and usage defining these limitations constitute international law. The formulation, however, of a body of practice as law implies responsibility for its observance. Thus we may define international law as the body of rules and principles of conduct, observed within the society of independent states, for the violation of which states are habitually held responsible, by diplomatic protest, intervention, reprisals, war or other means.

1" In the fifteenth century international life was fast resolving itself into a struggle for existence in its barest form. In such condition of things no law could be established which was unable to recognize absolute independence as a fact prior to itself." W. E. Hall, Int. Law, 7th ed. (Higgins), 1917, p. 18.

2 Wilson, Handbook of Int. Law, 1910, p. 56; Hershey, The Essentials of Int. Pub. Law, 1912, p. 147; Bonfils, Manuel de droit international public, 6th ed. (Fauchille), 1912, sec. 58, p. 119; Borchard, The Diplomatic Protection of Citizens Abroad, 1915, p. 177; Wright, Am. Pol. Sci. Rev., 13: 563; Columbia Law Rev., 20: 146.

3 For justification of this definition and comparison with other definitions see Wright, Enforcement of Int. Law through Municipal Law in U. S. U. of Ill., Studies in the Social Sciences, 5: 12-13 and Borchard, op. cit., p. 177 et seq.

PROC. AMER, PHIL. SOC, VOL. LX., I, MARCH 6, 1922.

10. The Independence of States.

Of the various fields to which the independence of a state extends, it is clear that other states would be less affected by a state's constitution and form of organization than by the legislation and administration of justice in its territory. Furthermore, each of these would affect other states less than the course of its foreign policy and the interpretation of its international responsibilities. However, history has shown that the constitution and form of organization of states is not a matter of total indifference to their neighbors and international law does limit the exercise of independence even in this field, but as a corollary to limitations upon the state's external and internal activity. Acts and omissions, not institutions are the primary concern of international law, but the interrelation of the two cannot be ignored.

For example, international law requires that states, desiring to enter into relations with other states, do so through diplomatic officers exercising powers and enjoying rights and privileges fixed by international law or treaty. So also states admitting foreigners to their territory are required by international law to maintain courts acting under a procedure calculated to assure substantial justice. Where they have not been able to do this, foreign states

4 Note for example the sympathy of the Holy Alliance for absolute governments and of the United States for popular governments since its foundation. (See Greene, Am. Interest in Popular Government, War Information Series, Sept., 1917, No. 8.) "A steadfast concert for peace can never be maintained except by a partnership of democratic nations. No autocratic government could be trusted to keep faith within it or observe its covenants.

We are accepting the challenge of hostile purpose because we know that in such a government following such methods, we can never have a friend, and that in the presence of its organized power, always lying in wait to accomplish we know not what purpose, there can be no assured security for the democratic governments of the world. . . . The world must be made safe for democracy." President Wilson, War Message, April 2, 1917.

5 The classification of these officers as fixed by the treaty of Vienna 1815 has been generally accepted. Wilson and Tucker, Int. Law, 7th ed., p. 162. It is recognized that Article II, sec. 2, cl. 2 of the Constitution of the U. S., relating to the appointment of ambassadors and other public ministers, is to be interpreted according to international law. Cushing, Attorney General, 7 Op. 190, 192. Infra, sec. 236.

6" Nations are bound to maintain respectable tribunals to which the subjects of states at peace may have recourse for the redress of injuries and

have habitually exercised diplomatic protection of their nationals or have insisted that permission be given them to establish extraterritorial courts for deciding cases in which their nationals are defendant."

11. The Representative Authority Under International Law.

More important for our purposes, however, is the requirement of international law that states maintain a definite authority to which foreign states may complain of violations of international law and from which they may expect satisfaction on the basis of that law alone. This requirement appears to be a necessary deduction from the accepted principle that under international law states are responsible as units and that this responsibility is unaffected by the maintenance of their rights." Mr. Webster, Secretary of State, to Chevalier d'Argaiz, Spanish Minister, June 2, 1842, Moore, Digest, 2: 5. See also Borchard, Diplomatic Protection of Citizens Abroad, 1915, p. 213, 335; Moore, Digest, 6: 695. The obligation to establish courts punishing offenses against international law was recognized by Congress before the Constitution (See Wright, Enforcement of Int. Law, p. 221) and is recognized in the Constitution (Art. 1, sec. 2, cl. 10). The obligation of a belligerent to establish prize courts is especially well recognized. "Neutral states have a right to demand ex debito juditie that there be courts for the administration of international law sitting in the belligerent countries." (Phillimore, Int. Law, 1: 55.) See also report of British Commission on Silesian Loan controversy, 1753, American State Papers, For. Rel., 1: 494; Moore, Digest, 7: 603; Lord Mansfield in Lindo v. Rodney 2 Doug. 613, 616 (1781); Lord Stowell in the Recovery Rob. 348 (1807). Diplomatic discussion, however, is not necessarily excluded until such judicial remedies are exhausted (infra, note 13).

* Borchard, op. cit., p. 346.

8 Borchard, op. cit., pp. 199-201. Hall, Int. Law, 7th ed., p. 54. Wilson and Tucker, op. cit., p. 45, defines a state for purposes of international law as "a sovereign political unity." The Supreme Court has said: "the National Government is . . . responsible to foreign nations for all violations by the United States of their international obligations," U. S. of Arjona, 120 U. S. 479, 483. Apparent exceptions to this unity of responsibility such as federal states whose constitutions permit a limited diplomatic power to the member states (Germany and Switzerland) and imperial commonwealths which in practice permit their self-governing colonies to exercise considerable diplomatic power (British Empire) (See Moore, Digest, 1: 25; Wright, Am. Jl. of Int. Law, 13: 265) prove not to be on inspection. In these cases the power of making commitments is to some extent distributed but responsibility for their execution continues unified. Thus the German Constitution of 1871 made it the duty of "the Emperor to represent the Empire among nations" and foreign nations have held the imperial government responsible

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