WRIGHT— POWER TO MEET RESPONSIBILITIES. 299 



not by each party according to its own opinion," but by judicial 

 process,'" arbitration,-^ or agreement of the parties."^ 



However, there is another common law principle, that the state 

 cannot be sued without its own consent. This principle is founded 

 not only on the historical tradition that " the king can do no wrong " 

 and on legal precedents, but also on practical grounds. ^^ 



"A sovereign," said Justice Holmes for the Supreme Court, "is exempt 

 from suit not because of any formal conception or obsolete theory, but on 

 the logical and practical ground that there can be no legal right as against 

 the authority that makes the law on which the right depends." 



This consideration has led Hobbes, John Austin and others to 

 conclude, starting from the premise that the state is the only source 

 of law, that the state cannot be subject to law and consequently in- 

 ternational law and treaties impose only moral obligations.^* Cer- 

 tainly an attempt to apply the two common law principles referred 

 to leads to an apparent contradiction. By the first the state must 

 submit to suit, by the second it cannot be sued. 



140. Justiciable and Non-justiciable Questions. 



In practice a partial reconciliation of the two principles has 

 been reached through the consent of states to be sued or to submit 

 to the decision of an international authority in certain types of 

 cases. The distinction has been made between justiciable and non- 

 justiciable questions. States have admitted that questions of the 

 former type ought to be settled by impartial external authority and 



1^ " Neither of the parties who have an interest in the contract or treaty 

 may interpret it after his own mind." Vattel, Le Droit des Gens, i : 2, c. 17, 

 sec. 265. See also Wright, Minn. Law Rev., 4: 29. 



20 Wilson V. Wall, 73 U. S. 83, 84 (1867) ; Moore, Digest, 5: 208; Cran- 

 dall, op. cit., p. 364. 



211 Hague Conventions, 1907, arts. 38, 82; Treaties concluded by United 

 States with Great Britain and other countries, 1908, art. i, Malloy, Treaties, 

 814; League of Nations Covenant, art. 13. 



22 Crandall, op. cit., pp. 225, 387; Dalloz, Juris. Gen., Supt., t. 17 (1896), 

 s. v. Traite Int. No. 14; Wright, Am. Jl. Int. Law, 12: 92. 



23 Kawananako v. Polyblank, 205 U. S. 349, 353 (1907). 



2* Hobbes, Leviathan, chap. 26, 2; Austin, Lectures on Jurisprudence, 5th 

 ed., London, 191 1, i: 263, 278; Gray, Nature and Sources of the Law, 1909, 

 pp. 77-81; Holland, Jurisprudence, nth ed., pp. 53, 365. 



