After any close inquiry into the present authority of the rule of the threemile limitof territorial waters, the candid observer will probabjy come to the conclusion that therule, while not infrequently attacked in theory, is supreme in practice. Diplomatists seldom or never question it; professors occasionally do. In the actual conduct of affairs,it is seldom challenged, and never successfully so. It must be premised that in what follows there is left out of account altogether the question of bays and gulfs. This is a different and more difficult question which can best be treated separately.

The responsibility of the state in international law is a subject of constantly increasing interest, whether to the practicing lawyer, who finds himself called upon to prepare an international claim, or to the theoretician, interested, perhaps, in the current codification of international law.1 Of the many problems connected with state responsibility, one of the most interesting, and at the same time one of the most vital,is that of the proper denotation to be given to the phrase “ denial of justice.” Most debates hinge upon definitions; and a consistent statement of the rules of responsibility would seem impossible until denial of justice is given clearer definition.It is believed that practice now affords us enough consideration of the meaning of the term to permit of analysis and of more precise definition.

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.

When in 1895 the French jurist Féraud-Giraud launched his comprehensive study Etats et Souverains devant les Tribunaux Etrangers, he began with this declaration:

Je n'hésite pas, dès le début de ce travail, & poser en principe et commerègle générale, que les tribunaux ne peuventconnaîre d'une demande portae devant eux contre un governement stranger.

J'ajoute immediatement que cette regie, si elle doit etre acceptee comme principe dominant de la mature, comporte bien des tempéraments et meme de véritables exceptions.

Je n'ose dire que certains ont voulu la voir appliquer d'une manière completement absolue; mais alors que des auteurs et des cours de justice se montraient très disposes à etendre plus ou moins ces exceptions, d'autres se sont efforcés de les renfermer dans les plus étroites limites.(Tome I, 28.)