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failed to receive the necessary ratification, arbitration in controversies with regard to the validity, construction and enforcement of treaties, was made obligatory. The Second Conference which met at Mexico in 1901-2, by the protocol adopted January 15 (nineteen republics represented), recognized “as a part of public international American law the principles set forth” in the three conventions, relative to the rules of war, signed at The Hague, July 29, 1899; and authorized the governments of the United States and Mexico to negotiate with the other powers signatory to the convention for the pacific settlement of international disputes, for the adherence thereto of the American nations so requesting.'
In Article XXIII of the postal-union convention signed at Vienna July 4, 1891, which article is renewed in the convention signed at Washington June 15, 1897, it is provided that disagreements between two or more parties to the union, as to the interpretation of the convention, shall be decided by arbitration in a manner prescribed in the article. A resolution introduced in the Chamber of Deputies of the Italian Parliament in November, 1875, and unanimously agreed to, requested the government to insert in all future treaties where possible a clause providing that difficulties arising in their execution or interpretation should be referred to arbitration. Since that date a large proportion of the treaties entered into by Italy have contained such a provision. A resolution of the Institute of International Law at Zurich in 1877 contained a recommendation of similar pur
'Sen. Doc. 330, pp. 11, 36, 40, 57th Cong. Ist sess. * 28 Stat, at L., 1093. 30 Stat, at L., 1645.
"See for list, Report of M. le Chevalier Descamps to the Hague Conference, Annex E.
port." Norway, not being allowed separate diplomatic representation, has been solicitous in this respect, and in the three commercial treaties applying to her separately, concluded March 22, 1894, with Switzerland, June 11, 1895, with Belgium, and December 31, 1895, with Portugal, such provisions were inserted. In the unratified treaty between the United States and Denmark of January 24, 1902, for the cession of the Danish West Indies, it was provided that differences arising in its execution or interpretation should be submitted to the Permanent Court of Arbitration at The Hague. Likewise treaties of arbitration have been concluded providing for general compulsory arbitration in this respect. Such a treaty was signed January 11, 1902, between Spain and Mexico. In the treaties of arbitration concluded by Great Britain October 14, 1903, with France, February 1, 1904, with Italy, and February 27, 1904, with Spain, it is agreed that differences that may arise out of the interpretation of treaties between the two contracting parties which can not be settled by diplomacy shall be referred to the Permanent Court of Arbitration at The Hague, provided, nevertheless, that they 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.
Although no branch of international relations could be more safely entrusted, without compromising the sovereignty of the state, to an international court of appeal,
A similar recommendation was made by the Interparliamentary Union for international arbitration that met at Vienna in 1903.
* Arts. VII, XX, XVI. Brit. and For. State Papers, vol. lxxxvi, p. 1026; vol. lxxxvii, pp. 537, 840.
> Art. VI.
than the interpretation of treaties, which constitute the the positive law between nations, there does not exist at present any standing tribunal before which the parties to a disputed interpretation must lay, except by special agreement, their contentions for adjudication.
(b) Judicial and Political Questions Where the treaty operates infraterritorially, as in the United States, or becomes by enactment a part of the municipal law, doubts respecting its meaning in cases between individuals are questions for the courts. The external relations of the treaty between government and government are primarily political questions.' Likewise in those states where the act to carry into effect, and not the treaty itself, comes before the court the interpretation is by the political branch, and the law in question may be considered as expressing the interpretation placed upon the treaty by the legislature. With respect to political questions, although they may affect individual rights, the courts of the United States have expressed a willingness to follow the decision of the political departments, the President and Congress. In reply to arguments made before the Supreme Court in 1853, that the King of Spain had not power according to the Spanish constitution to annul by the treaty of 1819 grants made in Florida, Chief Justice Taney, speaking for the Court, said, “But these are political questions, and not judicial. They belong exclusively to the political department of the government *** it would be impossible for the executive department of the government to conduct our foreign relations with any advantage to the country, and fulfil the duties which the
See Hamilton's Works (Lodge ed.), vol. iv, p. 139: Foster vs. Neilson, 2 Pet., 253.
Constitution has imposed on it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered.”: So also the Court has recognized as political the question whether power remains in a foreign state to carry out its treaty obligations, and has refused to interfere with the decision of the political department in this regard. The fact that extradition had been mutually requested and granted since the formation of the German Empire in 1871 under the treaty originally concluded with Prussia June 16, 1852—its subsequent existence thus having been recognized by the executive branch-was regarded by the Supreme Court “as of controlling importance" in deciding that the treaty was still in force. If the legislature has expressed itself clearly as to the boundaries of the nation as defined by treaty, the courts will accept its construction without going into the merits.3 A construction of a treaty stipulation defining the jurisdictional limits of the United States which has been insisted upon by the Executive will be accepted by the courts, the construction placed upon it by Congress, while not definite, being conformable thereto. The consideration in the first instance of questions of a judicial character, which may later come before the courts, naturally devolves at times upon the department of government entrusted with foreign relations.
Under the Articles of Confederation the Secretary for
Foreign Affairs found it advisable to submit questions arising in the interpretation of treaties to the Congress.' Under the Constitution the Senate, although a co-ordinate branch of the treaty-making power, is not usually consulted by the President in matters of interpretation. Nevertheless, on representations by the French government that acts of Congress which imposed extra tonnage dues on foreign vessels, and did not except therefrom French vessels, contravened the fifth article of the treaty of 1778, President Washington, before making answer, submitted the question to the Senate for its consideration. The Senate advised as to the meaning of the article in a resolution adopted February 26, 1791.' The Executive likewise submitted to the Senate the political question which arose in 1868 between this government and the Ottoman Porte on the construction of Article IV of the treaty of May 7, 1830. Decisions of international commissions have been submitted by the President to the Senate for its opinion whether the commissioners had acted within their powers, i. e., interpreted correctly the convention under which they were appointed. The decision of the commission under the claims convention with Paraguay, signed February 4, 1859, was communicated by President Buchanan February 12, 1861, to the Senate for this purpose. In the case of the award of the King of the Netherlands as arbitrator under the convention of September 29, 1827, which was submitted by President Jackson, the Senate advised that the award was not obligatory.s
'Dip. Cor. 1783-9, vol. I, p. 245. : Ex. Journal, vol. I, p. 77. • Treaties and Conventions, p. 1371. • Er. Journal, vol. xi, p. 268.
• As to the nature of the award, see Moore, International Arbitrations, vol. i, p. 138.