It is a sophistry to which human nature commonly resorts, when one wants to perform an act and at the same time to avoid its necessary consequences, to give it a fresh name. Thus, if people wish to live in concubinage and yet to be received in decent society, they call it “companionate marriage,” and if statesmen wish to rule and exploit a country without conferring on its inhabitants the grand privileges of citizenship, they call the annexation “protection”; whilst if they desire to impose tariffs on trade, and at the same time to avoid the connotation of scarcity and dearness, they avoid the awkward word “protection,” and style the process “safeguarding.”

The recent changes effected in the foreign policy of the United States both as regards the relations of that State with its neighbors in the Western Hemisphere and as regards its position as a world Power have brought again to the fore the question of the validity of the Monroe Doctrine. There are reasons to believe that this traditional policy, if not completely repudiated by the very State which brought it into being, will, at least, remain uninvoked during some period of time. In fact, it would appear that in so far as it is concerned with the problem of intervention, the doctrine has been definitely rejected by the present administration through the so-called “good neighbor policy.” Furthermore, it has but recently been observed in the Congressional debates preceding the passage of the Neutrality Joint Resolution of August 31 of last year, that the imposition of an impartial arms embargo against belligerents would preclude the United States from applying the Monroe Doctrine in case a weak American State should be the object of aggression by a foreign Power.

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 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.

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.