The term “denial of justice” has been used widely to describe certain types of acts and omissions of States directed against foreigners deemed to be internationally illegal and justifying diplomatic interposition by the aggrieved State. There is no agreement, however, as to the precise scope of the term. In attempting to determine whether a single definite meaning can be assigned to the expression, emphasis must be placed upon its actual use in diplomatic practice and in the decisions of international tribunals, for the opinions of writers, no matter how authoritative, may not correspond with the practice of States. A few general considerations may be suggested by way of introduction.

Even in the most highly formalized systems of jurisprudence the rules and practices of the law cannot be entirely separated from the fundamental conceptions of law underlying them. The legal systems of France, The Netherlands and Germany have not been formalized to so great an extent that there is neither occasion nor opportunity for the application of the law to be conditioned by concepts derived from juridical theory. Duguit and Geny, Krabbe, and Kohler and Stammler, in their various works, have made this quite clear. In Anglo-American law the fictions so abundantly found are often no more than concrete formulations of abstract fundamental concepts which judges have thought to be valid and consistent with policy and which they could not conveniently introduce into the law in any other way. That fundamental conceptions of the law may affect its development more than their logical consistency warrants has been amply illustrated in the common law, equity, and American constitutional law. What is true of well-developed systems of jurisprudence is no less true of international law. Fundamental conceptions have probably had a greater influence here, since theologic and scholastic philosophies explain many of the rules of modern practice, and the rules of current practice owe their very existence, in large measure, to the reconciliaation of the philosophical concepts of the State, sovereignty and independence with the conception of a community of nations and a rule of law.

The Italo-Ethiopian dispute has, at the time of writing, been dealt with by six distinct procedures in addition to direct diplomatic communication between the parties

(1) Mediation by the League of Nations Council under Article 11, paragraph 2, of the Covenant pursuant to the application of Ethiopia on January 15,1935. Under this procedure the Council received numerous communications from Italy and Ethiopia, considered the question during its meetings on January 17, April 15, May 25, July 31-August 3 and September 4-5, and passed several resolutions with the object of facilitating arbitration of the Wal Wal incident.

One of the most significant developments of the 19th and early 20th centuries has been the rapid expansion of constitutional government and the resultant rôle of representative bodies in the important function of concluding international agreements. While treaty-making remained for many centuries largely in the hands of unchecked executives, the trend of the past 150 years–at least until the recent rise of dictatorships in Europe–has been toward the conferring of more and more power upon the representative branch. The importance of this movement is especially significant when we consider that interstate contacts have rapidly multiplied during this same period and international contractual relationships correspondingly increased.

The problem of jurisdiction is of even greater importance in international law than it is in the domain of municipal law. This may easily be understood because, up to the present, no international tribunal has been furnished with obligatory jurisdiction binding upon all States. In consequence, the judicial settlement of many international disputes depends upon the preliminary question whether any tribunal has jurisdiction over the case. Although since the foundation of the Permanent Court of International Justice at The Hague a tribunal invested with a very comprehensive jurisdiction exists, it is, nevertheless, significant that in many cases before the Permanent Court a plea to the jurisdiction has been raised with the obvious intention of preventing a legal decision on the merits.

On April 1,1935, the Senate gave its advice and consent to the ratification of the General Treaty of Inter-American Arbitration signed at Washington January 5, 1929. An attached reservation was a revision of one of two reservations included in a resolution of advice and consent which the Senate had adopted on January 19, 1932. This is one of the somewhat rare instances of the reconsideration of a reservation by the Senate, in this case resulting in improvement of a condition imposed by that body.

The purpose of this article is to inquire what is requisite to bind the state to an international engagement. We might ask what is the international effect of constitutional limitations on the power to make treaties, thus coming directly to the most controverted aspect of the problem. But there are also less formal agreements, as well as unilateral acts, all falling within one great category of negotia juris whose common characteristic is that they express the will of a state or states. In the following discussion we shall say simply “act,” meaning thereby an official act whose purpose is to create, alter, or extinguish rights in international law.

Of all the early problems of American diplomacy, few held more dangerous potentialities or proved more difficult of solution than those involving the rights and privileges of naturalized Americans when traveling or resident in foreign lands. In America, the position of such people was fairly well defined. The laws, which were brief, merely referred to them as “citizens of the United States,” the equals, in short, of the native-born in every particular save that of eligibility for the Presidency. It was when naturalized Americans entered the country to which, because of birth within its jurisdiction, they bore a different relation than did native Americans, that difficulties arose. The American Government was forced to decide whether it ; should extend to them, while they remained in such countries, the same protection granted to native Americans, or whether it should follow the practice of the English Government, which washed its hands of naturalized Englishmen the moment they entered the country of their native allegiance.

Ever since Article 16, with its provisions for penalties against a violator,was inserted in the League of Nations Covenant, the term “sanctions” has been much to the fore in all discussions relating to international problems.The ranks of the internationally mindedhave been divided between those who favor the formal drafting and definite application of punitive measures against declared breakers of agreements and pacts, and those who inveigh against the feasibility of carrying over into the international arena the “policeman” ideas familiar to municipal or domestic law. The former school holds that only by adequate preparation in advance of swift and deadly sanctions can “bad-boy” nations be induced to keep the peace; while thelatter group believes that the present international society is notyet ripefor such community tactics, that it is virtually impossible to distinguish “good” boys from “bad” ones, and that the difficulties of treating a whole nation as a criminal are almost insuperable. The problem ceased to be an academic one at the time of the Sino-Japanese and Chaco crises, in each ofwhich the States of the world, both in the League and out, side-stepped the issue in one way or another, but during the Italo-Ethiopian affair, the matter became even more acute. It is not the purpose of this article to discuss the question of sanctions as it relates to the political entities comprising the euphemistically called “family of nations,” but it is proposed to examine the workings of agreements among economic or commercial bodies and to look into the ways in which those agreements are enforced or “sanctioned.”

Quite obviously, the entry into force of various amendments to the Statute of the Permanent Court of International Justice, on February 1, 1936, necessitated a revision of the Court’s Rules. Preparations for this event had already been undertaken by the Court, and the task was promptly completed. The new Rules were adopted and promulgated on March 11, 1936, and they have since been published in a third edition of Series D, No. 1, of the Court’s publications.

The recent case of Factor v. Laubenheimer raised several interesting questions with regard to the date of effectiveness of the extradition treaty between the United States and Great Britain, signed at London, December 22,1931, and the effect, if any, of the President’s proclamation of the treaty upon its status as law of the land of the United States. Article 18 of the treaty provided that it was to “come into force ten days after its publication, in conformity with the forms prescribed by the laws of the high contracting parties.” Ratifications were exchanged at London, August 4,1932; the President issued a proclamation in the usual form containing the treaty, as of the date August 9,1932; but the British Government withheld the issuance of an Order-in-Council containing the treaty, apparently to avoid affecting the result in the Factor Case. Counsel for the petitioner argued that the treaty was in force, but the Supreme Court, without going into the merits of the contention, followed the State Department, which appeared not to have recognized the treaty as in force in either country. The court, after examining the terms of the 1931 agreement found that even if it had come into effect as contended it would not have abated the pending proceedings. In several previous cases incidentally involving Presidential proclamations of treaties, the court has also been able to dispose of the principal issues raised without pronouncing upon the status and effect of such proclamations. On some future occasion, perhaps, the court may find it necessary to rule squarely upon the relation of the President’s proclamation of an international agreement to its status in domestic law. The present discussion is devoted to an examination of that relation, which includes the date of effectiveness of a treaty; the history of the use of the proclamation; and the effect of the proclamation upon the status of the treaty as law of the land.