Page:The Green Bag (1889–1914), Volume 23.pdf/630

 The Green Bag

590 better bill. . ..

Gorman was the father of the

American industries against what was regarded as the revolutionary designs of the President and the House. Yet if the history and tradition of the party and the platform of 1892, on which the Democrats came into possession of the gov ernment, are the test, the faithful Democrat is

come before international tribunals. The Casa Blanca controversy involved the relation of two sovereign Powers and might well have impli cated their dignity and honor. . . . "It will be seen, therefore, that in international arbitration the concept of legality tends to broaden out into interpretations which are based upon ideas of equity, justice and fair dealing.

Cleveland, not Gorman."

The term ‘justiciable' is, therefore, not conﬁned

law, posing as the conservative protector of

International Arbitration. "The Concept of Legality in International Arbitration." By Prof. Paul S. Reinsch. 5 Journal of International Law 604 (July). Possibly the most important article of the month. "In the drafts for general arbitration treatise recently submitted by the American Government the term 'justiciable' is used, it being provided that arbitration shall not be obligatory in case one of the nations considers the subject-matter of controversy not internationally justiciable. It will be necessary to determine how far this new term coincides in its application with the concept of legality. "Legality in international law has heretofore in the absence of authoritative judicial and legis lative organ, been associated with the idea of universal acceptance or custom. . ..

It

is,

however, apparent that clear thinking demands that the term legal should be associated with some such deﬁnite external criteria as universal accept

to what is legal in the strictest sense of the word, but it also, if we consult the recent experience of nations, would be held to cover any matters in which a deﬁnite ascertainment of inter national dut and propriety is desirable. Vhen ever the rig tfulness and justice of conduct is capable of determination by a body of impartial judges, a judicial question exists. To conﬁne the word ‘justiciable' to narrower, purely legal limits would be dangerous in several ways. . . Sovereignty is not a question of law, but of fact. . . . Each sovereign society still has to rely upon the virtue within itself alone for the maintenance of its political power. . . . The matter of the distribution of populations over the globe will be determined yet for a while by other forces than legal rules. This is also true of such great national policies as that which is known as the Monroe Doctrine. . . . When international justice has been given a sword. then, indeed, her sway will cover some, if not all, of the matters here mentioned." "The Function of Private Codiﬁcation in International Law." By Hon. Elihu Root. 5

ance or declaration by a deﬁnite, authoritative

tribunal. In this sense comparatively few rin ciples of international law can be said to ave achieved the status of recognized legality. . . . "It is ap rehended by many writers, among whom Mr. aty may be cited, that the applica tion of the concept of legality in international arbitration is inopportune and dangerous, as it involves the subjection of the ﬂexible life of the state to the rigid criteria of legal reasoning. They object to having the atmosphere of civil law courts brought into international affairs. It is true that the development of law, both in

Rome and in England, has followed out certain very rigid standards. We need only think of the doctrine of consideration and of real prop erty law in England. In awarding its reme dies, the English common law has strictly ad hered to the idea that nothing could be measured in terms of law that did not have money value. Actions were,

therefore,

not allowed

unless

pecuniary damages could be alleged. We have noted the reﬂex effect of this reasoning in the reluctance of international commissions to take up questions of national dignity and honor, which manifestly cannot be adjusted according to mere money standards. But it must be re membered that the other portion of English law, the system of equity, is more flexible in its

remedies, that it grants injunctions and decrees speciﬁc performance. The general concept of equity is, of course, even broader than that contained in the English system of that name. It involves the application of general standards of justice, and the determination of what in good faith ought to be performed. Questions involving such considerations have now already

Journal of InternationalLaw 577 (July). Address of the President. delivered at the ﬁfth annual meeting of American Society of International Law last April. "What subjects shall be ‘ripe for embodiment in international regulation’ when the next great law-making council of the nations convenes; where lies the greatest need; in what direction are the lines of least resistance; upon what subject is general 0 inion most nearly ready for crystallization? hat some subject shall be ready with opinions sufficiently matured to make it possible for a conference within the short space of a few months to reach effective conclu 510115 is vital to the continuance of the progress in which we are all so deeply interested. Now, as heretofore, the work of pre ration must be done chiefly upon private an unofficial initia tive. Codiﬁers must draft and systematize and clarify. Associations must discuss and obviate objections, and reconcile the philosophical and the practical, and work out conclusions and edu cate opinion. Industry, learning, accurate thought, knowledge of practical affairs, and breadth of view must prepare the deﬁnite ex pression of what has been found to be just and reasonable, so that there may be that formal acceptance which shall make it international law. The necessity of this development of international law to the movement for inter national judicial settlement is well illustrated by the Conference of London." International Law. See International Arbi tration, Neutralization, Panama Canal Fortiﬁ cation.