300 WRIGHT— POWER TO MEET RESPONSIBILITIES. 



have actually so settled them, while in the latter type of questions, 

 they have tenaciously maintained the doctrine that the state cannot 

 be sued and each has acted as judge in its own case.^' 



This distinction does not aid us to determine what questions are 

 actually justiciable nor does the similar distinction often made be- 

 tween legal and moral obligations. It is doubtless true, as President 

 Wilson and Vattel before him pointed out, that when the element 

 of judgment exists, the decision belongs to the conscience of the 

 party alone, the obligation is moral, and hence the question is non- 

 justiciable.^" But this does not tell us in what cases the element of 

 judgment exists. Nor do we get farther along by the definition of 

 non-justiciable questions, attempted in many general arbitrations, as 

 questions involving " national honor, vital interests and independ- 

 ence." ^' These general terms can be made as broad or limited as 

 the inclination of the parties suggests in any particular case. 



Attempts to define non-justiciable questions have proved unsuc- 

 cessful, but this does not mean that the distinction is worthless. The 

 truth is that with the theory of national sovereignty, all national 

 obligations, whether founded on treaty or general international law, 

 are presumed to be moral obligations and hence non-justiciable.^^ 

 But states have in the past consented to submit certain controversies 

 to legal decision and by classifying these controversies we can dis- 

 cover what types of dispute have actually been considered justiciable. 

 We can thus by induction arrive at a definition of justiciable ques- 

 tions and regard all others as non-justiciable. Such a definition of 

 justiciable questions has been attempted in Article XIII of the League 

 of Nations Covenant : 



" Disputes as to the interpretation of a treaty, as to any question of inter- 

 national law, as to the existence of any fact which if established would con- 

 stitute a breach of any international obligation, or as to the extent and nature 

 of the reparation to be made for any such breach, are declared to be among 

 those which are generally suitable for submission to arbitration." 



25 Crandall, op. cit., p. 358. 



28 President Wilson, Statement to Senate For. Rel. Committee, Aug. 19, 

 1919, Hearings, 66th Cong., ist sess., Sen. Doc. No. 106, p. 515; Vattel, Le 

 Droit des Gens, Introduction, sec. 17. 



2^ See Treaty U. S. -Great Britain, 1908, art. i, Malloy, Treaties, p. 814. 



28 See Infra, sec. 142. 



