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tainly an attempt to apply the two common law principles referred to leads to an apparent contradiction. By the first the state must submit to suit, by the second it cannot be sued.

140. Justiciable and Non-justiciable Questions.

In practice a partial reconciliation of the two principles has been reached through the consent of states to be sued or to submit to the decision of an international authority in certain types of cases. The distinction has been made between justiciable and nonjusticiable questions. States have admitted that questions of the former type ought to be settled by impartial external authority and have actually so settled them, while in the latter type of questions, they have tenaciously maintained the doctrine that the state cannot be sued and each has acted as judge in its own case.25

This distinction does not aid us to determine what questions are actually justiciable nor does the similar distinction often made between legal and moral obligations. It is doubtless true, as President Wilson and Vattel before him pointed out, that when the element of judgment exists, the decision belongs to the conscience of the party alone, the obligation is moral, and hence the question is nonjusticiable.26 But this does not tell us in what cases the element of judgment exists. Nor do we get farther along by the definition of non-justiciable questions, attempted in many general arbitrations, as questions involving "national honor, vital interests and independence." 27 These general terms can be made as broad or limited as the inclination of the parties suggests in any particular case. Attempts to define non-justiciable questions have proved unsuccessful, but this does not mean that the distinction is worthless. The truth is that with the theory of national sovereignty, all national obligations, whether founded on treaty or general international law, are presumed to be moral obligations and hence non-justiciable.28

25 Crandall, op. cit., p. 358.

26 President Wilson, Statement to Senate For. Rel. Committee, Aug. 19, 1919, Hearings, 66th Cong., 1st sess., Sen. Doc. No. 106, p. 515; Vattel, Le Droit des Gens, Introduction, sec. 17.

27 See Treaty U. S.-Great Britain, 1908, art. 1, Malloy, Treaties, p. 814. 28 See Infra, sec. 142.

But states have in the past consented to submit certain controversies to legal decision and by classifying these controversies we can discover what types of dispute have actually been considered justiciable. We can thus by induction arrive at a definition of justiciable questions and regard all others as non-justiciable. Such a definition of justiciable questions has been attempted in Article XIII of the League of Nations Covenant:

"Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration." 28a

141. The Obligation of Treaties and International Law.

Treaties are presumably made to be kept. "It is an essential principle of the law of nations," asserted the London protocol of 1871, "that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement." 29 The same principle was emphasized by the scrap of paper incident of 1914 and implies that treaties should be interpreted by impartial authority.

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Clearly if international law deserves the name, its obligations must be of a legal character and controversies relating to them must be justiciable.30 Most text-writers recognize the distinction between obligations of international law and requirements of international courtesy and comity. In the latter, an element of judgment is reserved, the obligation is "imperfect" or moral, and controversies relating to them are non-justiciable, but not so with the former. In practice this distinction necessarily exists, because by definition, international law consists only of those rules and principles for the infraction of which nations have been accustomed to make formal international claim or protest, and hence for the settle

28a Also in State of Permanent Court of International Justice, art. 36. 29 Satow, Diplomatic Practice, 2: 131; Hall, op. cit., p. 365; Wright, Minn. Law Rev., 5: 441-443, supra, sec. 33.

30 See J. B. Moore, Am. Pol. Sci. Rev., 9: 4-6.

31 Hall, op. cit., pp. 14, 56.

32 Supra, sec. 9.

ment of which they are not content to rely on the conscience of other states.

But though treaties and international law both impose obligations of a theoretically legal character, yet their interpretation is generally a question for determination by national organs in first instance. According to our classification, international law and treaty impose responsibilities which may require (1) mere observance by public organs, (2) enforcement against individuals within the jurisdiction or (3) the performance of specific acts by public organs. Now primary decision upon the existence of and means of meeting responsibilities of the first two types belongs to national organs. No international controversy can occur until a failure to meet the responsibility or at least definite authorization of a violation is alleged. It is, therefore, only responsibilities of the third type, now under consideration, which can raise a question for international discussion, and such a question may be raised by a claim for (1) specific performance or (2) reparation. These are the two types of obligations imposed by international law. They imply "a tie; whereby one (state) is bound to perform some act for the benefit of another" 35 and are thus to be distinguished from responsibilities, almost synonymous with liabilities, which imply a situation in which

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38 Friendly controversies merely to ascertain rights, resulting in decisions of the nature of declaratory judgments would be an exception. Boundary controversies are sometimes of this character, though usually they are occasioned by incidents alleged to constitute an encroachment.

84 These two obligations bear a certain resemblance to the two obligations known in Roman law as obligationes ex contractu and ex delicto and in common law as contracts and torts. There is, however, a difference. The distinction between contracts and torts depends upon whether or not the obligation is founded on special agreement or on general law; whereas the distinction we here make depends upon whether or not the obligation can be carried out or merely compensated for. In fact, however, practically the only international obligations which can furnish grounds for a demand for specific carrying out are founded on special agreements. But on the other hand, obligations which may furnish grounds for a claim for compensation may be founded upon either general law or special agreement. See Salmond, Jurisprudence, pp. 558-559.

85 Holland, Jurisprudence, p. 241.

one state may suffer if it acts, permits action, or fails to act so as to injure others.36

142. Practice in Submitting 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 : 89

86 "Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong." (Salmond, Jurisprudence, sec. 126.) In the terminology which has developed from discussion of Professor Hohfeld's article on Fundamental Legal Conceptions (Yale L. J., 23: 16), we say that B is under an obligation (or duty) when the services of organized society can be enlisted against him by A and correlatively that A has a right. On the other hand, B is under a liability (or responsibility) when organized society permits A to act against him and correlatively A has a power. (See addresses at meeting of Association of American Law Schools in Chicago, Dec. 29, 1920, especially that by Kocourek, Am. Law School Rev., 4: 615.)

Rights and obligations imply a society organized to the extent of providing agencies for authoritatively judging justiciable controversies between its members. There are no true rights or obligations where each man is judge of the merits of his own case. (Supra, sec. 139.) Powers and liabilities, however, may exist in a society organized only to the extent of refusing to permit self help in certain cases. There are no true powers or liabilities 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., Ist sess., Sen. Doc. 106, p. 502.

"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.

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.40 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

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

40 Infra, sec. 182.

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