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" and are thus to be distinguished from responsibilities, almost synonymous with liabilities, which imply a situation in which

33

33 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.

34 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.

35 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: 98

36 "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. 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.

political branch of the government. It is the function of the Executive or of Congress, as the case may be." 41

So Congress has asserted that it alone can interpret responsibilities claimed to oblige an appropriation of money, a declaration of war or other act exclusively within its control. As has been pointed out, if the President as the representative organ should interpret such a responsibility, his interpretation would bind the United States under international law, but in recognition of the constitutional principle he has not usually done so. Thus Secretary of State Bayard refused to authorize an unconditional signature of a declaration interpreting the Submarine Cable Convention of 1884:48

"It is to be observed," he wrote, "in this connection that the treaty in question is not self-executing, and that it requires appropriate legislation to give it effect. If, under these circumstances, the Executive should now assume to interpret the force and effect of the convention, we might hereafter have the spectacle, when Congress acted, of an Executive interpretation of one purport and a different congressional interpretation, and this in a matter not of Executive cognizance."

144. By National Political Organs: The Senate.

The Senate, in consenting to the ratification of treaties, has decided upon the action necessary to meet responsibilities created by preliminaries of peace, protocols and other agreements requiring the negotiation of subsequent treaties. So the Senate assumed the right to decide whether or not ratification of the Treaty of Versailles was required in fulfillment of the responsibilities undertaken by the President's exchange of notes with the Allied powers of November 5, 1918, and the armistice with Germany of November 11. So also the Senate has asserted its right to decide whether a particular controversy is within the scope of a general arbitration treaty, and has therefore insisted upon a voice in the

41 Mr. Bayard, Sec. of State, to Mr. McLane, Min. to France, Nov. 24, 1888, Moore, Digest, 5: 209. See Martin v. Mott, 12 Wheat. 19, infra, sec. 223, note 97.

42 Supra, secs. 34, 38.

48 Note cited, supra, note 41.

44 Supra, sec. 30, note 53.

conclusion of the compromis submitting a particular case to arbitration. The latter claim has not been admitted by Presidents or supported by the better authorities, who have held that the power to apply a general treaty to particular cases is not a political question and may be delegated.45 With reference to general and permanent interpretations of treaties or agreements, however, the President has admitted the Senate's claim.

"Had the protocol varied the treaty, as amended by the Senate of the United States," wrote President Polk in reference to a protocol explaining the treaty of Guadaloupe Hidalgo with Mexico, "it would have no binding effect." 46

Apparently the presumption that the President speaks for the nation would generally be superseded in such a case by the duty of foreign nations to acquaint themselves with the authority in the United States competent to make international agreements, and the United States would not be bound by such general interpretation unless the foreign nation had reason to suppose it had been consented to by the proper authorities.""

145. By National Political Organs: The President.

Where power to fulfill responsibilities is vested in the President, he may decide what action is necessary. Thus Presidents have often decided when the circumstances contemplated by treaties or agreements of guarantee and protection, such as those with Colombia (1846), Mexico (1882-1894), Cuba (1903) and Hayti (1916), exist, and on their own responsibility have moved troops or war vessels.48 In his message of December 7, 1903, President Roosevelt explained at length his interpretation of the treaty of 1846 with Colombia. By Article 35 of this treaty the United States had "guaranteed, positively and efficaciously to New Granada, (Colombia) . . . the perfect neutrality of the . . . Isthmus, with the view that the free transit from the one to the

177.

45 Supra, sec. 62.

46 Moore, Digest, 5: 208; see also supra, secs. 27, 28, 38, and infra, sec.

47 Supra, sec. 24.

48 Taft, Our Chief Magistrate, pp. 85-87.