plicable by their courts.42 We have already noticed the expediency of permitting national courts to apply international law directly in order that the state may more readily meet its international responsibilities, yet it may be questioned whether international law requires such action. In common law countries courts ordinarily find the law they apply in precedents and custom. It is not therefore surprising that they should, as did Lord Chancellor Talbot in Barbuits case, express "a clear opinion that the law of nations in its full extent was part of the law" of the land.43 In continental European countries, however, courts are bound by written codes and statutes. They are not in the habit of consulting such diverse sources of law as are common law courts. Therefore they have not applied customary international law directly, though they have sometimes shown an inclination to apply treaties 4 as do American 45 though not British courts 46 other than prize courts.47 It is not believed that the continental European system is contrary to international law, though it throws an additional burden upon the legislature and the executive to see that the positive law applicable by courts adequately provides for the meeting of international responsibilities. Doubtless, however, the rule of the American Institute is gaining in acceptance as indicated by its adoption in the recent constitutions of Germany and Austria.48 But though states are not obliged to incorporate international law as a whole into their municipal law, they are obliged to see that its provisions are respected, if not by judicial, then by legislative or executive enforcement. They must, in the words of Sir Henry Maine, "look upon its rules as a main part of the conditions on which a state is originally received into the family of civilized nations and that a state which disclaims the authority of international law places itself outside the circle of civilized nations." 49 Practice has shown the operation of this sanction. States whose constitutions fail to provide for a proper observance of international law find themselves unable to participate fully in the family of nations through lack of 42 "International Law is at one and the same time both national and international: national in the sense that it is the law of the land and applicable as such to the decision of all questions involving its principles; international in the sense that it is the law of the society of nations, and applicable as such to all questions between and among the members of the society of nations involving its principles. (Barbuit's Case, Cases tempore Talbot, p. 281; Triquet v. Bath, 3 Burrow, 1478; Heathfield vs. Chillon, 4 Burrow, 2015; The Paquete Habana, 175 U. S. 677, 700)"; American Foreign Policy, Carnegie Endowment for International Peace, Division of Intercourse and Education, Publication No. 17, p. 112. "Mansfield, J., in Triquet v. Bath, 3 Burr. 1478, (1764). "Supra, n. 24. 45 United States Constitution, Art. VI, sec. 2; Ware v. Hylton, 3 Dall. 199, (1796). 46 Walker v. Baird, L. R. (1892), A. C. 491; The Parlement Belge, L. R. (1879), 4 P. D. 129; Westlake, Collected Papers, p. 518; Wright, this JOURNAL, Vol. 10, pp. 720, 726, 729, 731. 47 The Chile, L. R. (1914), p. 212; Picciotto, op. cit., pp. 42, 68. 48 Supra, n. 25. 49 Maine, International Law, p. 37. recognition or the imposition of extraordinary limitations upon independence. Four circumstances under which such sanctions have operated may be noticed. International law does not require that each state live under a particular form of government, but it does require that each state 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.50 Thus governments not able to speak for the whole state or presenting slight prospects of stability are not recognized,51 while even recognized governments experience great difficulties in maintaining diplomatic relations if the representative authority proves incompetent to give satisfaction to demands based on international law. Such was the situation of the United States under the Articles of Confederation. "The treaties of the United States," wrote Hamilton in the Federalist, "under the present constitution, are liable to the infractions of thirteen different legislatures, and as many courts of final jurisdiction, acting under the authority of those legislatures. Is it possible that foreign nations can either respect or confide in such a government?" 52 Even as late as 1892 the apparent inability of the Government at Washington to compel respect for treaty rights of Italians within the state of Louisiana caused the withdrawal of the Italian ambassador.53 The usual custom of refraining from recognizing new governments until they exercise de facto control of the territory evidences the same principle.54 A second requirement of international law is that the national constitution provide courts with a procedure calculated to afford substantial justice to aliens 55 and particularly prize courts for the trial of neutral prizes in case of belligerency.56 The presence of such courts will not, it is true, prevent subsequent diplomatic protest in particular cases where justice is denied,57 but 50 Oppenheim, International Law, Vol. 1, sec. 341; Hyde, International Law, Vol. 1, p. 16; Wright, Control of American Foreign Relations, pp. 15–20. 51 "The recognizing powers must respectively be satisfied that the new state gives sufficient promise of stability in its government. No power would willingly try to weave ties with a rope of sand." Westlake, International Law, Vol. 1, p. 50. 52 Hamilton, The Federalist, No. 22, Ford. ed., p. 141. See also Farrand, op. cit., Vol. 1, pp. 426, 513. 53 Moore, Digest, Vol. 6, pp. 837-841. 54 Acting Secretary of State Hill, 1900, Moore, Digest, Vol. 1, p. 138; Hyde, op. cit., Vol. 1, p. 67. 55 Secretary of State Webster, 1842, Moore, Digest, Vol. 2, p. 5; Borchard, Diplomatic Protection of Citizens Abroad, 1915, pp. 213, 335; Hyde, op. cit., Vol. 1, p. 388 et seq., p. 464 et seq.; Wright, Control of American Foreign Relations, pp. 14-15. 56 Lord Mansfield, in Lindo v. Rodney, 2 Doug. 613, 616, (1781); Lord Stowell in The Recovery, 6 C. Rob. 348, (1807); "British Commission on the Silesian Loan Controversy," 1753, Moore, Digest, Vol. 7, p. 603; Phillimore, International Law, Vol. 1, p. 55. 57 Secretary of State Bayard, 1887, Moore, Digest, Vol. 6, p. 667; Borchard, op. cit., pp. 197, 342; Wright, Control of American Foreign Relations, p. 18, n. 13. states which fail to provide courts entitled to respect are subjected to continual diplomatic intervention or to the establishment of extraterritorial courts by foreign states. In the Washington Conference of 1921, China sought to obtain the removal of extraterritorial courts and Turkey has been making a similar effort at the Lausanne conference. In both cases the request has been denied, at least for the time, on the ground that in these countries national courts do not afford justice of a standard satisfactory to Western powers. In the case of China, a commission was established to report upon the actual condition of Chinese courts.58 A third requirement of international law is that the national constitution respect standards of property and contract rights acceptable to the family of nations.59 Thus Article 27 of the Mexican constitution which appears to contemplate a nationalization of subsoil mineral rights without compensation, though the Mexican courts have interpreted it as being non-retroactive, has been a leading reason for American refusal to recognize the Obregon government. So also the apparent repudiation of the institution of private property and of national contract obligations by the Soviet government of Russia has prevented recognition of that government. It is true that under the "new economic policy" announced by Lenin in 1921, these novelties were to be abandoned but apparently the powers have not been convinced of the sincerity of this change of heart.61 A final international law requirement is acceptance by national constitutions of the established jurisdictional limits and exemptions. A constitution which asserted jurisdiction over portions of the high sea beyond the three mile limit would undoubtedly give grounds for international complaint. Thus foreign nations are undoubtedly entitled to protest seizures of their vessels on the high seas by American officials enforcing the Eighteenth 58 See Conference on the Limitation of Armament, 67th Cong., 2nd Sess., Sen. Doc., No. 126, pp. 476, 514, 903; Hyde, this JOURNAL, Vol. 16, p. 71. See also treaty between United States and China, 1903, Art. 15; Annex to treaty between United States and Siam, 1920 providing for withdrawal of American extraterritorial jurisdiction in Siam (Treaty Series No. 655) and President McKinley's message of December 5, 1899, on removal of extraterritorial jurisdiction in Japan. (Richardson, Messages, Vol. 10, p. 148). 50 Borchard, op. cit., p. 179; Hyde, op. cit., Vol. 1, p. 468; Root, Proceedings of American Society of International Law, 1910, pp. 20-21. 60 See note of acting Secretary of State Polk, December 13, 1918, Investigation of Mexican Affairs, 66th Cong., 2nd Sess., Sen. Doc. 285, Vol. 2, p. 3163; note of Secretary of State Hughes, June 7, 1921, Current History, Vol. 14, p. 711; Stuart, Latin America and the United States, 1922, pp. 121–124, 130; Woolsey, this JOURNAL, Vol. 16, p. 67. 1 See note of Secretary of State Colby, August 10, 1920, and of Secretary of State Hughes, March 25, 1921, Current History, Vol. 12, pp. 925–932, Vol. 14, pp. 189–190; Hyde, op. cit., Vol. 1, p. 73-74. The British Court of Appeals has held that the trade agreement of March 16, 1921 with Krassin and the recognition of the Soviet government as the de facto government of Russia in April 1921 amounted in law to recognition of that government by Great Britain, retroactive to the date of the dispersal of the constitutional assembly of Russia by the Soviet government on December 13, 1917. (Luther v. Sagor, 37 Times L. R. 777, (1921).) Amendment. Where a definite communication with the coast clearly indicates an intention to violate American law in American territory, seizures, even beyond the three mile limit may be justifiable, and this rule, stated by the federal courts, is now being acted upon by the federal officials.62 The usual exemptions from territorial jurisdiction must likewise be respected by national constitutions. Thus the United States has refrained from applying the provision of the Sixth Amendment, which guarantees compulsory process for obtaining witnesses to the accused in criminal trials against resident diplomatic officers, although such officers have sometimes voluntarily given testimony.63 The ordinary immunity from search of diplomatic baggage has not been affected by the Eighteenth Amendment. A more difficult question has arisen in connection with the prohibition of intoxicating beverages on visiting foreign merchant vessels. It has been contended with much weight by foreign governments that such vessels are exempt under international law, at least with respect to that part of the ship's stores intended for consumption of the crew. Since the law of France and other states requires the service of liquors in ships' rations, the masters of such vessels in American ports would find themselves in an embarrassing dilemma if the Eighteenth Amendment were held to apply, as Attorney General Daugherty said it did, in his opinion of October 6, 1922. Should the contention of foreign nations prove a correct view of international law, doubtless the amendment will be interpreted accordingly. It can hardly be implied that the prohibitionists intended to violate international law, and exceptions in favor of the immunities of diplomatic officers and public vessels have already been read into the amendment.64 We may conclude that international law and constitutional law touch at many points. This does not mean, however, that they always agree. Their sources and sanctions are different, and, in fact, contacts of the two systems often fail to be observed unless they develop into conflicts. In such a case it is for the courts by interpretation, or the constitution making authority by amendment, to end them. While conflicts remain, national authorities are bound by the constitution and since international law relies in first instance upon enforcement by national authorities, it will suffer, but in the long run, as Pillet justly remarks, international law must be respected "on penalty of exposing the state to a responsibility which may paralyze its sovereignty and put obstacles to the reign of its national law." 65 62 Wright, "The Prohibition Amendment and International Law," Minnesota Law Review, Vol. 7, p. 3. 63 Moore, Digest, Vol. 4, pp. 643-645; Wright, Control of American Foreign Relations, p. 79; Minnesota Law Review, Vol. 7, p. 31. 64 Wright, Minnesota Law Review, Vol. 7, pp. 28-36. 65 Pillet, Revue Générale de Droit International Public, Tome 5, p. 87. TORT AT INTERNATIONAL LAW BY JENNINGS C. WISE Member of the Bar of the District of Columbia It is not too much to say that the municipal law of every civilized state recognizes certain rights as belonging to every individual, including the right to property, the violation of which constitutes a tort. Municipal law also very generally recognizes certain duties as attached to every individual the breach of which, coupled with consequent damages to another, is a tort. Thus, a tort is sometimes defined as a private or civil wrong or injury, and sometimes as the breach of a legal duty. Under the Civil Code of France the right of action in tort is very broad. "Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le reparer." (Section 1382.) "Chacun est responsable du dommage qu'il a causé non seulement par son fait, mais encore par sa négligence ou par son imprudence." (Section 1383.) And, says Blackstone: Wherever the common law gives a right or prohibits an injury, it also gives a remedy by action.1 The very broad statement of Blackstone must be qualified, however, with respect to a certain class of wrongs which the individual may suffer, for that which is held to be a tort on the part of an individual, even when a ministerial officer, for which he is liable in damages, is held to become an "act of state" when approved and ratified by his government, for which the state is not liable at common law to be mulcted in damages.2 Yet, it is apparent that whether or not the wrongful act be styled a tort or an act of state, since it is the same act the mere formality of official ratification and adoption by the state does not alter its consequences to the injured party, the state being in the exact position of a tort-feasor though it may be technically incorrect to speak of it as such. In Langford v. United States, in which the plaintiff sought to recover damages in the Court of Claims for the use and occupation of lands which the United States held by force, the court in denying the jurisdiction of the Court of Claims to award damages save those arising ex contractu, said: 13 Bl. Com., Ch. VIII, p. 123. 2 See Cooley, Torts, 376; 2 Ex. (England) 167. |