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Violation of Treaties by Adverse National Action

Published online by Cambridge University Press:  04 May 2017

Denys P. Myers
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Extract

The shade of distinction sought to be shown by the title of this paper may require explanation. Imperfect wording involves either carelessness or ignorance; bad faith indicates dishonesty; nonexecution or disregard implies laxness in the government, if not carelessness; adverse or hostile municipal or judicial action connotes lack of coordination between the internal and external affairs of the State. It follows that such adverse action may be considered from a practical point of view as almost a normal kind of violence against international contracts. It is not to be excused on that account, but it may be considered as a frictional incident almost inseparable under some conditions from the existence of a State. Given either a government of definitely separated elements, such as the United States, or a government without much stability, or a State founded on a type of civilization different from the European order, and this sort of violation of treaty may be forecasted with certainty. Fortunately, however, the instances that cause contractual friction of this sort are of the grosser kinds of personal violence, or are commercial; they are not of a political character, cannot be said to involve policy, and only by a stretch of the imagination involve the tweedledum and tweedledee of international relations, “national honor and vital interest.” They are consequently extremely susceptible to simple and orderly solution.

Type
Research Article
Information
American Journal of International Law , Volume 12 , Issue 1 , January 1918 , pp. 96 - 126
Copyright
Copyright © American Society of International Law 1918

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References

1 Judicial Code, sec. 237, as amended by Public No. 224, 63d Cong., approved December 23, 1914.

2 On this subject see William H. Taft, The United States and Peace, 40–89.

3 Under the Articles of Confederation, between 1776 and 1789, fourteen treaties were negotiated by the United States as follows: France, alliance, and secret article, February 6, 1778; France, amity and commerce, February 6, 1778; France, contract for the repayment of loans, July 16, 1782; France, contract for a new loan and the repayment of the old loans, February 25,1783; France, consular, November 14, 1788; Great Britain, provisional treaty of peace, November 30, 1782; Great Britain, armistice, January 20, 1783; Great Britain, definitive treaty of peace, September 3, 1783; Morocco, peace and friendship, January, 1787; Netherlands, peace and commerce, October 8, 1782; Morocco, relative to recaptured vessels, October 8, 1782; Prussia, amity and commerce, September 10, 1785; Sweden, amity and commerce, April 3, 1783. Authenticated instances of violation under the regime of the Articles of Confederation have not been found, and it is probable that the complaint of the statesmen was directed at a theory, not a condition; but see Curtis, Constitutional History of the United States, I, 168–174. For matters of dispute relating to these treaties see for: France, Moore, Digest, V, 586–615; Great Britain, ibid., 621–699; Netherlands, J. C. B. Davis’ Treaty Notes (1776- 1887), 1360; Prussia, Moore, ibid., 617–618; Sweden, ibid., 864–865. Federal cases involving treaty provisions will be found in the later treaty volumes listed as notes to the treaty texts.

4 No. 22.

5 Burr, Charles H., The Treaty-making Power of the United States and the Methods of its Enforcement as affecting the Police Power of the States, Proceedings of American Philosophical Society, LI, No. 206. Quotations from pp. 283, 325 Google Scholar, 327 and 356.

6 The cases considered are: United States v. Schooner Peggy, 1 Cranch 103 (1802); Foster & Blam v. Neilson, 2 Peters 253 (1829); United States v. Percheman, 7 Peters 51 (1833); Strother v. Lucas, 12 Peters 410 (1838); Garcia v. Lee, 12 Peters 511 (1838); Pollard v. Kibbe, 14 Peters 353 (1840); Taylor ». Morton, 2 Curtis 454 (1853); The Cherokee Tobacco, 11 Wall. 616 (1870); United States v. 43 Gallons of Whiskey, 93 U. S. 188 (1876); The Head Money Cases, 112 U. S. 584 (1884); United States v. Rauscher, 119 U. S. 407 (1886); Bartram v. Robinson, 122 U. S. 116 (1887); Whitney v. Robertson, 124 U. S. 190 (1888); Chae Chan Ping v. United States, 130 U. S. 581 (1889); Nishimura Ekiu v. United States, 142 U. S. 651 (1892); United States v. Lee Yen Tai, 185 U. S. 213 (1902); Johnson ‘v. Browne, 205 U. S. 309 (1907); Fok Yung Yo v. United States, 185 U. S. 296 (1902); Baldwin v. Franks, 120 U. S. 678 (1887).

7 The cases considered are: Ware v. Hylton, 3 Dallas 199 (1796); Clerke v. Harwoode, 3 Dallas 342 (1797); Fairfax v. Hunter, 7 Cranch 603 (1812); Chirac v. Chirac, 2 Wheat. 259 (1817); Orr v. Hodgson, 4 Wheat. 453 (1819); Hughes v. Edwards, 9 Wheat. 489 (1824); Carneal v. Banks, 10 Wheat. 181 (1825); Worcester v. The State of Georgia, 6 Peters 515 (1832); Hauenstein v. Lynham, 100 U. S. 483 (1879); Maiorano v. B. & O. R. R. Co., 213 U. S. 268 (1909).

8 Burr, op. cit., 398.

9 See also Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U. S. 581.

10 See Westel Woodbury Willoughby, The Constitutional Law of the United States, Chaps. XXXIV–XXXV; Charles, Henry Butler, The Treaty-making Power of the United States, II, 1–148 Google Scholar; Samuel B. Crandall, Treaties, their Making and Enforcement; Devlin, Treaty Power of the United States.

11 Butler (II, 86) cites the following cases in which the Supreme Court has sustained the supersession of prior treaties in conflict with later statutes: United States v. McBratney, 104 U. S. 621; Chew Heong v. United States, 112 U. S. 562; Ward v. Race Horse, 163 U. S. 504; Draper v. United States, 164 U. S. 240; Thomas v. Gay, 169 U. S. 264; Fong Yue Ting v. United States, 149 U. S. 698; Chinese Exclusion Cases, 130 U. S. 581; La Abra Mining Co. v. United States, 175 U. S. 423; United States v. Gue Lim, 176 U. S. 459.

12 Sir Edwin Pears, For. Bel., 1908, 743. But see Ernst Meier, Ueher den Abschluss von Stattsverträgen (Leipzig, 1874), 116–126, citing Hansard, CXCIX, 324, 330; CLVI, 1361, 1397; CLII, 1439, 1380, 1387, 2003, 1422, 1429; CLVII, 1361. On the whole subject as to England, see Alpheus, Todd, On Parliamentary Government in England (London, 1887), I, 365–373 Google Scholar, “The right of making treaties.” Consult also Zoepfl’s Das Zustimmungsrecht der Landstände zu, staatsrechtlichen Verträgen (Freiburg, 1860).

13 See French constitutional law of July 16–18, 1875, Art. 8; German Constitution, Art. 11; Austrian fundamental laws, sec. 1, a.

“In the confederation each State guards the capacity to treat on points which are not confided to the common authority by part of the confederation (Act of Germanic confederation of June 9, 1818, Art. 11, sec. 2). In the present Federal German Empire, the character of which is mixed, each State may pass treaties on matters which do not enter the domain of the common legislation of all the empire or which have been formally reserved (German Constitution, Art. 4, No. 11, arts. 52 and 66; convention of November 23, 1870, Art. 2, with Bavaria).” — Despagnet, Droit international, 487.

“ The obligation of observing the Pact is extinguished simultaneously with the entry into vigor of the new constitutional law, and the State which promulgates it cannot be regarded as admitting exceptions to its application in any sense.” — Olivi, Sull’estimione dei trattati internazionali, 34.

14 Max, Huber, The Intercantonal Law of Switzerland. This Journal, Vol. 3, p. 62 Google Scholar.

15 Léonard, Frédéric, Recueil des arrests de la ckambre royale établie à Metz . . . (Paris, Léonard, 1681); Schoell, Histoire Générale des Traités de Paix, I, 380; Garden, ibid., II, 121–122.

16 Schoell, ibid., I, 425–427; Garden, ibid., II, 164.

17 Wheaton, International Law, III, II, 7; Du Mont, Corps universel diplomatique, VIII, Pt. 1,345.

18 Schoell, Histoire Générale, IV, 218, 293; Garden, ibid., V, 190, 252.

19 Schoell, op. cit., VI, 9, 10; Garden, op. tit., VI, 305–307.

20 Schoell, op. cit., VI, 21; Garden, op. cit, VI, 316.

21 Op. tit., IV, 300; Garden, op. tit., V, 287–8.

22 Martens, Recueil, VI, 548.

23 3 Dallas 238.

24 Moore, Digest of International Law, V, 697.

25 See generally on the subject of these debts, Moore, International Arbitrations, 271–298.

26 Moore, Digest, V, 356.

27 Martens, Recueil, IX, 192, 478; Schoell, Histoire Générdle, VII, 73–74, 98–99; Garden, ibid., VI, 365–381.

28 Garden, op. cit., VIII, 18.

29 Schoell, Histoire, VII, 428; Garden, ibid., IX, 40–43.

30 Schoell, op. tit, IX, 286–287, and XI, 318. The constitution is Annex 9 to the Treaty of Vienna.

31 Moore, International Arbitrations, page 4179.

32 Worcester v. The State of Georgia, 6 Peters 515 (1832); Burr, op. cit., 353–355; Von Hoist, Constitutional History of the United States, 1750–1833, 452–455.

33 Moore, Digest, IV, 97; 13 Stat. 595; Moore, International Arbitrations, 1264; S. Eep. 70, 38th Cong., 1st sess.; Atocha’s Case, 8 Ct. of CI. 427.

34 Moore, Digest, V, 78–81. A constitutional point in the judge’s opinion is omitted from the summary. For a very similar instance occurring in Germany to an American consul general, see Moore, ibid., 81–83. In this instance, however, the summons was withdrawn and the consul general appeared voluntarily. For another instance, see For. Rel., 1905, 458—161.

35 Atti del Parlamento italiano, 1860, 158 ff. The Italian treaty of peace with Austria in 1866 was likewise acted upon before Parliament had opportunity to express its opinion. According to its terms, Italy was to pay Austria thirty-five million florins, and the payment was made by the executive before the Parliament could approve the treaty. This brought a protest from Mancini, but to no avail. (Atti, 1867, 358.)

36 Moore, Digest, V, 847.

37 Moore, Digest, V, 447–448; citing For. Rel., 1892, 142, 143. For a similar case at Vallejo, California, see For. Rel., 1891, 461–462, 466.

38 Moore, Digest, II, 74–75. The facts of the Swedish-Norwegian claim will be found in For. Rel., 1874, 1117–1120; 1888, 669–674.

39 Moore, Digest, VI, 837–841; For. Rel. 1891, 658–728; see also City of New Orleans v. Abbagnato, 62 Fed. Rep. 240.

40 Moore, ibid., III, 344–353, and VI, 841–849, with citations there mentioned.

41 Moore, VI, 817–818.

42 Op. cit, 822–837.

43 Moore, Digest, IV, 99–100; For. Rel., 1894, App. I, 329–352.

44 Moore, Digest, V, 730; For. Rel., 1898, 387 ff.

45 This Journal, VI, 478–485.

46 The following are additional citations of this form of violation:

34. For a case involving inobservance of treaty provisions by local authorities and also of the most-favored-nation clause, see Moore, Digest, V, 573–576.

35. For the Van Bokkelen case, involving imprisonment “in derogation of the rights to which he was entitled as a citizen of the United States under stipulations contained in the treaty between the United States and Haiti” of November 3, 1864, see Moore, Digest, VI, 699–701, 772–773, and International Arbitrations, 1807–1853.

36. For the Panama riot of April 15, 1856, as a result of which New Granada acknowledged liability for failure to preserve peace and good order in accordance with Article 35 of the treaty of peace, amity, navigation and commerce of December 12, 1846, see Moore, Digest, III, 34–36; VI, 819, 960, and International Arbitrations, 1361.

37–43. For instances arising between the United States and Spain under Article 7 of the treaty of friendship, boundaries, commerce and navigation of October 27, 1795, see Moore, Digest, VI, 908–914. The incidents occurred in Cuba in 1896 and 1897 and related to a decree of the Governor General ordering a general requisition of horses and mules, spoliation of cane crops for forage, quartering of troops and spoliation thereby, the Governor General’s executive order prohibiting export of leaf tobacco by foreigners, and the appropriation of an American’s estate for an agricultural colony of impoverished concentrados. Altogether five types of violation. “It is the opinion of the Commission that the treaty of 1795 and the protocol of 1877 were in full force and effect during the insurrection in Cuba, and they will be applied in deciding cases properly falling within their provisions,” said paragraph 9 of the statement of April 28, 1903, copying the President’s instructions. See also on this subject Moore, Digest, VI, 923, 970–972. The latter citation presents a sixth type of such violation involving abandonment of a plantation by military order and subsequent overrunning of it by Spanish soldiers. The case of Sanguily’s imprison ment offers a possible seventh type. Moore, VI, 784–785.

44. For liability of the United States under the French Claims Convention of January 15, 1880, see Joseph Chourreau v. United States, Boutwell’s Report, 134, 140, and Moore, Digest, VI, 920–921. This is perhaps not a true case of treaty violation.

45. For the case of Dr. Maurice Pflaum, involving infraction of Article IV of the treaty of commerce and navigation of May 7, 1830, with Turkey, see Moore, Digest, VI, 771–772. Extraterritorial jurisdiction was violated in this instance.

46. For arrests in Turkey of American naturalized citizens bearing passports but charged with crime in contempt of extraterritorial rights (Article IV, treaty of 1830), see For. Rel., 1905; 885–898.

47. For the inconsistency of Articles 49, 50, 59, 60, 61, and 62 of the Chinese mining regulations of March, 1908, with Article VII of the American treaty of October 8, 1903, see For. Rel., 1908, 151–176.

48. For imposition of taxes or duties on kerosene oil by inland Chinese authorities in addition to these prescribed by treaty, see For. Rel., 1908, 134–145. The question involved most-favored-nation treatment under Article XI of the Chino- Japanese commercial treaty of 1896 and the limits of free port areas under Article 2 of the Anglo-Chinese Nanking treaty of 1858, Article 6 of the Franco-Chinese treaty of 1858, Article 7 of the Franco-Chinese treaty of 1860, the German-Chinese treaty of 1861, and Article II of the Belgian-Chinese treaty of 1865. All the Powers named were involved in the dispute.

49. For the collection of a forced loan from an American naturalized by marriage, Mrs. Josefa Jacoby, in contravention of the treaty of 1867 with Nicaragua, see For. Rel., 1894, 451–460.

The following are American instances in which a presumption of violation was raised:

For the case of a forced loan (Ulrich and Langstroth, 1873) allegedly in violation of Article VIII of the treaty of April 5, 1831, with Mexico, see Moore, Digest, VI, 916–917; but see also opinion of Secretary Evarts, ibid., 917.

As to adducing Article IV of the treaty of 1840 between the United States and Portugal in connection with indirect importations into Portuguese colonies by way of Lisbon, see Moore, Digest, II, 71–72.

For an instance in which Chinese passport regulations in the interior would, if put into execution, have violated Article IX of the British treaty of June 26, 1858, and similar provisions in treaties with all other Powers, see For. Rel., 1894, 152–160.

For the Wheelock case, in which an American citizen was tortured by a Venezuelan official and then repeatedly denied redress in the Venezuelan courts, see Moore, Digest, VI, 321–323, 769–770. The case occurred in 1879, and therefore the allegation of Mr. Evarts that the treatment of the American contravened Article 3, of the treaty of amity, commerce and navigation, and extradition of August 27, 1860, is erroneous; for the treaty terminated on October 22, 1870, pursuant to notice by Venezuela.

For alleged inobservance of Article 14 of the consular convention of 1871 with Germany, growing out of desertions from German ships on the Pacific coast, see For. Rel., 1902, 411–417. The question here involved was largely as to procedure and also included construction of Sec. 5280, R. S., in harmony with the treaty provision.

For an instance of allegation of violation by acts of a revolutionary force against an American, William Fowks, see Moore, Digest, VI, 993–994. An indemnity was paid and accepted without entering into the merits of Peru’s liability under Articles II and XV of the treaty of 1887.

For evidence that cutting submarine telegraphic cables in war time is not a violation of Article XV of the treaty of Paris of March 14, 1884, on the protection of such cables, see Moore, VI, 924–926.

For alleged contravention by the viceroy of Nanking of Article I of the Whangpu river conservancy agreement of September 27, 1905 (For. Rel., 1905, 122), see For. Rel., 1909,70 ff.

For alleged discrimination against Italian subjects by an ordinance of Richmond, Va., in contravention of Articles II and III of the treaty of February 26, 1871, between the United States and Italy, see For. Rel. 1909, 386–389. A similar instance occurring in South Carolina in 1893 was dealt with in Cantini et al. v. Tillman et al., 54 Fed. Rep. 969.

For the Maiorano case, see For. Rel., 1909, 391–393. Here the Department of State held that a Pennsylvania law denying nonresidents of Pennsylvania the right to institute damage proceedings on account of violence or negligence resulting in death did not violate Articles 3 and 23 of the treaty of February 26, 1871, with Italy. Cf. Maiorano v. B. & O. R. R. Co., 213 U. S. 268 (1909).