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Justiciable Disputes

Published online by Cambridge University Press:  04 May 2017

Roberty Obke Hedges
Roberty Obke Hedges*
Affiliation:
in Law at Manchester University,England; Laura Spelman Rockefeller Memorial Fellow at Geneva
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Extract

A distinction, associated with the name of Westlake, has been drawn between legal and political international disputes, and this terminology appears to have found its way into the text-books. It formed the basis of the project for obligatory arbitration put forward by the Russian delegates at the First Hague Conference. At the present day, however, not only are the terms frequently employed in different senses, but there is considerable difference of opinion as to the utility of drawing such a distinction at all. A discussion of the question before an assembly of eminent American jurists resulted in the expression of many widely divergent views, and their deliberations indicate a notable absence of agreement both on this topic and on the closely related question of the basis of arbitration. Yet the whole question is one of fundamental importance, and so far from being a matter of merely academic interest, it has a direct practical bearing on any scheme for the extension of the principle of compulsory arbitration. The question of the justiciable character of disputes is an inevitable result of the movement in recent years in favor of general treaties of arbitration, providing for disputes of the future. It is notorious that the Second Hague Conference failed to solve the problem by an attempt to draw up “ arbitrable lists” of disputes, and it is doubtful whether a very satisfactory solution has been found by the more general definition of disputes of a legal nature laid down by Article 36 of the Statute of the Permanent Court of International Justice.

Type
Research Article
Information
American Journal of International Law , Volume 22 , Issue 3 , July 1928 , pp. 560 - 565
Copyright
Copyright © American Society of International Law 1928

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References

1 E.g., Oppenheim, International Law, Vol. II; , Hershey, Essentials of International Public Law, p. 323 Google Scholar; , Foulke, International Law, Vol. II, p. 88 Google Scholar.

2 Proceedings of the American Society of International Law, 1924, pp. 50 & 126, et seq.

3 It is of course needless to draw any distinction between an arbitrable and a justiciable dispute, since arbitration and judicial settlement are both juridical proceedings. The function of an arbitrator, not less than that of a judge, is to apply judicially the principles of international law applicable to the facts—a duty which can only be restricted by the express terms of the compromis. See my article in the British Year Book of International Law, 1926, p. 110.

4 Brown, International Realities, p. 86.

5 Wehberg, , “ Restrictive Clauses in International Arbitration Treaties,” this Journal, Vol. 7 (1913), p. 301 Google Scholar. Cf. Cavalcanti, ibid., Vol. 8 (1914), p. 723.

6 For the meaning of the term “ equity” in an arbitration treaty, see the award rendered at Washington in the Case of the Cayuga Indians, 1926, this Journal, Vol. 20 (1926), p. 574. See also, Report of Neilsen, Fred K. , American Agent, American-British Claims Arbitration, under the Special Agreement of August 18, 1910, pp. 273-286 Google Scholar.

7 Annuaire de l'Institut de Droit International, 1922, p. 23 el seq.

8 This article proceeds further by recommending that if the court, by a three-fourths majority, should consider the dispute to be justiciable, it should proceed to adjudicate; otherwise the dispute should be referred back to the parties.

9 Westlake, International Law, Part I, p. 339.

10 Balch, Legal and Political Questions between Nations, p. 131.

11 Revue générale de droit international public, 1922, p. 502.

12 For this aspect of the problem, see the address delivered by Professor J. L. Brierly before the British Institute of International Affairs, Journal, 1924, p. 227.

13 Cf. Jelf, Grotius Society Transactions, 1922, p. 67.

14 Proceedings of the American Society of International Law, 1924, p. 53.

15 This Journal, Vol. 16 (1922), p. 257.

16 University of Pennsylvania Law Review, 1924-25, p. 277.

17 Hyde, , International Law Chiefly as Interpreted and Applied by the United States, Vol. II, p. 560 Google Scholar.

18 Reeves, J. S. , this Journal, Vol. 15 (1921), p. 372 Google Scholar.

19 Revue ginirale de droit international public, 1922, p. 503.

20 Hudson, Manley O. : Proceedings of the American Society of International Law, 1924 p. 126 Google Scholar.