WRIGHT— POWER TO MEET RESPONSIBILITIES. 301 



141. The Obligation of Treaties and International Law. 



Treaties are presumably made to be kept. '* It is an essential 

 principle of the law of nations," asserted the London protocol of 

 1871, "that no power can liberate itself from the engagements of 

 a treaty, nor modify the stipulations thereof, unless with the consent 

 of the contracting powers by means of an amicable arrangement." ^^ 

 The same principle was emphasized by the scrap of paper incident 

 of 1914 and implies that treaties should be interpreted by impartial 

 authority. 



Clearly if international law deserves the name, its obligations 

 must be of a legal character and controversies relating to them 

 must be justiciable. ^° Most text-writers recognize the distinction be- 

 tween obligations of international law and requirements of interna- 

 tional courtesy and comity. ^^ In the latter, an element of judgment 

 is reserved, the obligation is " imperfect " or moral, and contro- 

 versies relating to them are non-justiciable, but not so with the 

 former. In practice this distinction necessarily exists, because by 

 definition,^^. international law consists only of those rules and prin- 

 ciples for the infraction of which nations have been accustomed to 

 make formal international claim or protest, and hence for the settle- 

 ment of which they are not content to rely on the conscience of 

 other states. 



But though treaties and international law both impose obligations 

 of a theoretically legal character, yet their interpretation is generally 

 a question for determination by national organs in first instance. 

 According to our classification, international law and treaty impose 

 responsibilities which may require (i) mere observance by public 

 organs, (2) enforcement against individuals within the jurisdiction 

 or (3) the performance of specific acts by public organs. Now 

 primary decision upon the existence of and means of meeting re- 

 sponsibilities of the first two types belongs to national organs. No 

 international controversy can occur until a failure to meet the re- 



29 Satow, Diplomatic Practice, 2 : 131 ; Hall, op. cit., p. 365 ; Wright, 

 Minn. Law Rev., 5 : 441-443, supra, sec. 33. 



30 See J. B. Moore, Am. Pol. Sci. Rev., 9 : 4-6. 

 3^ Hall, op. cit., pp. 14, 56. 



32 Supra, sec. 9. 



