opment would seem to be the conscious perfection of the international law of procedure. The late Professor Maitland remarked that the principles of substantive common law were deposited through the interstices of procedure. Says Professor Vinagradoff:

The modern stage of international law and procedure are at a stage corresponding to a great extent with the criminal and civil procedure of ancient law. Procedure begins to develop at a time when the element of public compulsion is absent or insignificant. The transitions from one stage to the other, from a legalized struggle to arbitration, and ultimately to fall within jurisdictional authority, are very gradual. Two circumstances contributed powerfully to effect the transition from international law to a law regulated by the commonwealth: the growth of a mediating power to which parties were forced to submit; and the increasing strength of the view that even imperfect compromise is better than open struggle.1o

The traditional law of procedure between states in time of peace has been that of diplomacy; and war itself has been falsely designated by certain writers as the procedural process par excellence of international law. Later, international arbitration appears as an acceptable but not universal mode of settlement. It has developed a very precise law of procedure. Resort to it has not become universally compulsory, and its results, usually in the nature of compromise, are frequently imperfect. Arbitration proceeds from initial agreement. Considering the traditional nature of international persons, adjudication must proceed also from initial agreement, but with this essential difference: however all inclusive a general arbitration treaty may be, an agreement upon the specific question to be arbitrated, technically known as the compromis, remains an essential element in the process. The agreement to create an international court which shall have jurisdiction over a certain type of controversy between states, would eliminate the compromis, which so frequently in the past has opened the door to a compromise settlement by a court of arbitration. If a court is established with a jurisdiction agreed upon, whether or not its process is compulsory, it can then proceed to a judgment in accordance with the principles of law. By this process, not by codification, is the way of development in international law indicated. A court with jurisdiction defined needs no code of substantive law in order to reach a judgment. No code has been necessary in order to furnish the Supreme Court of the United States with a rule by which to settle controversies between States. It is law because the court enforces it, and enforced because it is law: thus are joined juristic fact and legal fiction.

The Federal Constitution provides that the Supreme Court of the United States shall have jurisdiction over all controversies between States. other words, any controversy between States which can be settled by a judicial proceeding is within the jurisdiction of the Supreme Court of the 19 Vinagradoff, Historical Jurisprudence, 351.

United States. Considering the allocation to each State of a definite legal status quo under the Constitution, no controversy between States of the Union is at the present time conceivable which is not a matter for judicial determination and settlement; but judicial determination and settlement do not mean, necessarily, the employment of force for the execution of the decree and judgment of the court in settling the controversy. The essential point is that, with reference to each other the States of the Union are in a condition of a legal status quo, and therefore controversies are based upon a legal relationship and not upon a political one.

There are those who would organize an international court of justice upon the pattern of the Supreme Court of the United States, in so far as it has jurisdiction over the States of the Union. The plan of the International Court of Justice, under the auspices of the League of Nations, originally provided for compulsory process, a stipulation stricken out when the plan was adopted by the Council and Assembly of the League of Nations. With a court organized and open, a state, which would repudiate its process might soon come to be in the position of a state which declines arbitration, or, having accepted arbitration, refuses to abide by its award.

Certainly not at present, if ever, may one claim that all controversies between states are justiciable; that is to say, one cannot assume that all controversies between international persons are determinable by legal rules of action. Herein we must admit that international law now differs materially from municipal law. In theory, at least, all of the relationships of private life are potentially determined by legal rules. All external actions of persons are in municipal law either legal or illegal. To such an extent has social life within the states been determined and fixed by law, that there are no areas of external action by persons which are exempt from the field of legal protection or control. Within the state at any one time, an act is either legal or illegal, and the business of the court is to determine into which field the act falls. This result is the end of a process centuries long, by which law and government within the state have become inseparable. Policy within the state may result in the formulation and adoption of a new law; but within the state this is legal change. A new law rescinds or modifies a prior legal relationship. A new law creates a new legal relationship only in the sense that it modifies existing relationships.

In the field of international law, however, we are faced with an altogether different situation. There are still large areas of external action by states with reference to which positions are assumed which are neither legal nor illegal. They are simply non-legal, or strictly political. For we must not think of a law as a rule of action, necessarily implying penalties for its non-fulfillment. It is rather a means by which the individual or group in society may discount the future, by having certain future acts (interests) protected. In other words, while within the state the will of

the individual is assumed to be free, the execution of that will in external action proceeds, in theory at least, upon the basis of a potential and determinable status quo. In international life, some of the external acts of states have been determined wholly by policy; and to some extent policy has obstructed the extension of the purely legal area. International relationships represent, therefore, at any given time a static situation. A static situation does not mean fixity, so that no further development of legal relationship is possible. It means the substitution of a legal relationship for one that is not legal, but that legal relationship may afterwards be modified. Where policy occupies the field, the situation is still dynamic.

This is the essential distinction between the two classes of controversies commonly described as justiciable and non-justiciable. A justiciable controversy is one in which the external action of a state is challenged upon the ground that it does not conform to an established rule of action. A non-justiciable controversy is one in which the external action of a state is challenged, not upon the ground of its illegality, not upon the ground that a rule of action exists which is violated, but because with reference to it there is no legal rule of action. The occupation of these non-legal areas in international life by legal relationships, the change from a dynamic to a static situation, can come about only gradually and by the agreement of its members, gradually by tacit consent or through conscious agreement to reduce the dynamic to the static, reached in part by diplomatic adjustment, in part by law-making treaties, in part by the creation of an international judicial jurisdiction. Each member of international society comes thus in its external actions more and more to be able to discount the future. This is not, it must be confessed, the only basis for the antithesis of justiciable and non-justiciable controversies, for there are areas wherein international legal rights and duties cannot be enjoyed and perfected because of obstructive international policy. Here, one may insist, there is a legal conflict that the political obstruction is an illegal obstruction. Answer may be made to this objection that it is the lack of solidarity in international life, the imperfection of international society, that permits the obstruction, and the situation is thereby recognized as dynamic rather than static, and hence non-legal.

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The Covenant of the League of Nations recognizes this distinction. While it makes provision for an international court of justice in addition to the perpetuation of the machinery of international arbitration, and embodies in its preamble an appeal to the "understandings" of international law, the Covenant is framed upon the theory that machinery is necessary for the settlement of these dynamic, non-justiciable controversies. To the extent that the Council of the present League of Nations has jurisdiction over controversies, that jurisdiction is over non-justiciable disputes. And herein, in the minds of many, lies one of the greatest objections to the present Covenant of the League of Nations. The danger is felt by many

that the organization of the Council of the League of Nations and its control by preponderance of power will not make for a surrender of those areas in international life which should be governed by law. There is no doubt much to be made of this objection; but, having regard to the actualities of present international life, as the world is left as the result of the World War, political questions remain uppermost.

We should be blind to assert that the immediate results of the war have been the recovery of a larger area of strictly legal control. The peace settlement, in so far as it is a settlement, is, after all, a political settlement out of which political questions have arisen and will continue to arise. With reference to many of them, it would seem that no court could be created that in the near future could successfully adjudicate upon some of the larger problems which have already proceeded out of the treaties of peace. Having in mind the nature of the peace settlement, it follows that if the law of nations is to exist, it must rest upon the foundations made by the settlement. The consideration of the vitally important questions, all of them political, has so far been undertaken by the Supreme Allied Council or by a smaller group representing those nations immediately responsible for the victory and for the terms of settlement. Until these matters growing out of the treaties are settled, one cannot be assured of any very great advance in the adoption of purely legal rules of action among states. The fragments of the old Russian Empire, Germany, Austria, Hungary, Turkey, Greece, cannot be considered at the present time as factors in the development of international law. The mind of the world is still too much concentrated upon those fundamentally political questions which have resulted from the war to have any common ideas either for the development of international law by means of new law-making treaties, or for the codification of the law of peace as it existed prior to August of 1914. In that month, in a way, the old international law came to an end, for the invasion of Belgium and the retribution which is being exacted for that invasion and its results give a new and solider basis for international law than the world had ever before afforded.

Gladstone remarked, when the neutrality of Belgium was threatened in 1870, that the foundation of the public law of Europe lay in treaty faith. Bethmann-Hollweg admitted in the Reichstag, in August, 1914, that Germany was committing a supreme offense against the law of nations by violating the treaty for the neutralization of Belgium, but he claimed that necessity demanded it, and therefore even the violation was justified. The position of Germany today is the answer to that contention. The foundation of international law is the doctrine of pacta servanda; that treaties. are to be respected and lived up to; that without recognition of the binding character of international obligations, legally as well as morally, there can be no international society in any juristic sense. But along with this idea there is the other, that international society has the right and duty

to express itself with reference to the nature of treaties that are thus to be preserved. A treaty that is secret, which aims at the detriment or destruction of other states, is an act essentially anti-social in nature, and in some way the world should be protected against it. No provision of the Covenant of the League of Nations more correctly expresses the better aspirations of modern international life than that which requires that treaties, in order to be respected, shall be made public.

An international organization has come to be essential to the existence of international law. It is not so much the business of international law to prepare a code for war, as it is to determine the rights and obligations of states in time of peace. Controversies between states will not cease any more than controversies between individuals within the state have disappeared. For a long time to come those controversies which are dangerous to the peace of the world are likely to be political and non-justiciable. Nevertheless, as order proceeds, as it must proceed, out of the present chaos, as interdependence goes forward among nations, further areas of international life are to be recovered from policy to law. The causes of war lie deep in political controversies. The occasions of war are frequently found in the violation of recognized legal right and duty.

Not underestimating the necessity of organization for the purpose of settling controversies of the first type, the need of an organization for the judicial settlement of international disputes, upon the basis of legal rights and duties by an international court of justice, is no less evident. By its very nature, an international court of justice will lack the dramatic qualities of an Allied Council or the Council of a League of Nations. Nevertheless, as an expression of the quiet and abiding convictions of international life, it may be a very potent factor in recovering the sense as well as the conscience of mankind. Founded upon treaty agreement, it will furnish the necessary basis for the modern structure of international law. In international organization there must be an embodiment, an expression, not merely of the aspirations of the few-it must be in immediate contact with the actualities of international life. The international law of the future, deriving a renewed vigor on the basis of international agreement from the creation of an international court of justice, must seek to interpret the actualities of international life, for in that way mainly, if not solely, can it become the "expression of the organized opinion of mankind."