debates apparently assumed otherwise. The question therefore is an open one-it is purely and simply a question of treaty interpretation, and, unless the provisions of the Canal Act which have given rise to the dispute are modified or repealed, the obligation of the United States to accept the proposal of the British Government to submit the controversy to arbitration is one which the Government of the United States cannot honorably refuse.

The CHAIRMAN. Before proceeding with the discussion of this paper and the last paper of last evening, we will proceed with the program of the morning. All of the speakers are present, and, therefore, it would seem that we should go immediately forward.

The first paper on the program for this morning is on the question "Is it necessary in international law that injury actually be suffered before a justiciable action arises?", which is to be read by Mr. Thomas Raeburn White, of the Philadelphia Bar.

IS IT NECESSARY IN INTERNATIONAL LAW THAT INJURY ACTUALLY BE SUFFERED BEFORE A JUSTICIABLE ACTION ARISES?

ADDRESS OF MR. THOMAS RAEBURN WHITE, of the Philadelphia Bar.

The expression "justiciable action" carries with it the idea of compulsion. An action is a proceeding in a court of justice. It implies that the plaintiff can compel the defendant to answer and obey the order of the court.

An action, however, in this sense can scarcely be said to exist in international law; there is no recognized court; there is no method of commencing an action by summoning the defendant; there can be no compulsion to answer. By "action" in international law, therefore, we mean something slightly different-the right of one nation to demand of another that a dispute be submitted to arbitration. The word "justiciable" presupposes a controversy capable of being, and proper to be, so submitted.

But how can one nation be said ever to have the right to demand that a controversy be submitted to arbitration? Clearly no demand can be enforced. But an action or right of action may be said to arise where the circumstances are such that the demand for arbitration would be supported by the united opinion of the civilized world, and

a refusal would meet with universal disapproval; in a sense the submission to arbitration in such case is obligatory.

The problem before us is to determine the limits, if that be possible, of the cases in which such demand would be supported by international public opinion, and whether it is an essential incident of such cases that injury shall have been suffered before the demand is made. There are some classes of cases in which a demand for arbitration would be generally recognized to be reasonable, and a refusal would be deemed unreasonable and as showing a disinclination to observe the rules which generally govern the action of states toward one another.

First, whenever a state has violated the standard of conduct generally accepted as regulating the relations of nations (the modus vivendi, as it has been called), and in so doing has inflicted injury upon another, the right of the injured party to demand reparation, and to have the amount thereof ascertained by a court of arbitration, is, I think, generally conceded. In such case the iujury necessarily precedes the demand for arbitration.

The second class of cases is where there is a difference as to the interpretation or application of a treaty; but not in all such cases would a demand for arbitration be necessarily approved by universal opinion. In some instances the treaties so clearly relate to political questions affecting the sovereignty of nations that the questions at issue would be generally recognized as unsuitable for arbitration. But there are many cases of disputes over the interpretation or application of treaties which are generally conceded to be justiciable. For example, questions of a technical nature, not involving political considerations; treaties concerning such matters as extradition, copyright, the establishment of extraterritorial courts, the control and navigation. of international waterways and, in general, boundary questions arising from treaty obscurities.

A third class of cases where a justiciable action may exist is where the two nations have by treaty agreed to submit to arbitration a class. of disputes including the one in question.

But there are certain general principles which, in the present stage of development of international law, affect the decision in all the preceding cases. It may be said in general that a nation cannot be compelled by the force of public opinion to submit a dispute to arbitration, if its honor, its vital interests, or its independence are involved.

Moreover, it is conceded that ordinarily a political, as distinguished from a legal, question cannot be arbitrated, or at least a demand for arbitration may be refused.

A legal question is one where the rule or law applicable to the case is known in advance, and the only duty of the tribunal is to ascertain the facts and apply the law; if the law is uncertain or if honor, vital interests or independence are involved, the question is deemed to be political. In such case, as the matter now stands, no justiciable action can be said to arise.

But I apprehend, in view of the general subject of this meeting, it was expected there would be a more particular discussion of the question now pending over the Panama Canal Act, and whether a case for arbitration has as yet arisen in that instance.

First, is this a case for arbitration at all, postponing for the moment the question as to the infliction of injury? On this point there can be little doubt. By the Hay-Pauncefote Treaty certain definite rules were laid down which were to govern the control and regulation of the Panama Canal and the charges of traffic. The United States has by an act of legislature declared its interpretation of that treaty, and has placed in the hands of the Executive the power to do certain acts which it is claimed will unfavorably affect British shipping. The interpretation placed on the treaty by the Act of Congress is claimed by Great Britain to be erroneous. Even without reference to the treaty agreeing to arbitrate such disputes as this, it is clear that a question is presented purely technical in its nature, i. e., do the Canal Act and the treaty conflict, and, if so, in what particulars? No new rule is to be laid down, no political question is involved; the matter is exclusively one of interpretation by the application of well-known rules of construction.

If it be contended that a political question is involved, because the result may be to restrict the United States in its control of its own territory, the answer is no such question will be involved in the arbitration. The treaty when properly interpreted will be the restraining power and must be obeyed of its own force, unless the United States then takes the position that she will not be bound by it. Until then no political question would exist. It is beyond the scope of this paper, and somewhat aside from its main purpose, to enter into the question whether, notwithstanding the above observations, the United States would be justified in refusing arbitration on the ground that

the question is one of domestic policy, or that vital interests are involved; or whether, even if in an ordinary case such refusal would be supported by world opinion, the United States, in view of its obligatory arbitration treaty and of its often expressed adherence to the doctrine of obligatory arbitration, could afford to assume such an attitude. I desire, however, to record my entire dissent from any such contention.

It is interesting to note in this connection, however, that in one of the very few instances where any effort has been made to point out what treaties are susceptible of arbitral interpretation, treaties concerning oceanic canals were expressly included. In the explanatory note annexed to the Russian Proposal of International Arbitration, submitted to the Peace Conference of 1899, it is said:

Among the treaties for the interpretation of which compulsory arbitration ought to be admitted fully and unconditionally we may cite first of all the extensive group of those having universal character, and which have constituted a system of international means for subserving interests which are likewise international. * * *

At present all treaties coming within the following two subdivisions may be included within the category of treaties of a universal character which are susceptible of admitting compulsory arbitration:

1. Treaties concluded for the purpose of affording international protection to the great arteries of international communication, postal, telegraph, and railroad conventions, conventions for the protection of submarine cables, regulations for the purpose of preventing collisions of vessels on the high seas and conventions relating to navigation on international rivers and interoceanic canals.

Moreover, there is authority in international law for the proposition that canals, such as the Panama Canal and the Suez Canal, are to be considered as existing for the common benefit of mankind, and that one nation could not legally exclude other nations from the use thereof, even if it were the absolute owner of the territory through which the canal passes. In short, the proposition has been advanced by very high authority, and I believe it to be sustained by reason, and by the general acquiescence in the principles which have governed the management of the Suez Canal, that the nation enjoying the ownership of an interoceanic canal cannot lawfully discriminate in

favor even of itself as against others. The general rules for the conduct of the Suez Canal liave been adopted for the Panama Canal, and while the only nations which are parties to the treaty adopting these rules are the United States and Great Britain, it is not to be overlooked that they are the two great nations which dominate the Western Hemisphere, and that the other nations doubtless assumed that their interests were sufficiently safeguarded by the guarantee that all nations would be treated equally. In short, it seems a reasonable proposition, as suggested by Professor Westlake, that the system adopted for the control of the Suez and Panama Canals "must be considered as the modus vivendi established for a class of cases, though a restricted one," and, therefore, any violation of that modus vivendi even by the nation which owns the canal necessarily gives rise to a justiciable action, irrespective of a treaty and irrespective of any political questions which might be alleged to be involved.

But it is said no injury has as yet been inflicted, and, therefore, no case for arbitration has yet arisen, and this is the question for discussion especially assigned to this paper.

First considering the question somewhat generally: What bearing upon the case has the fact that no injury has as yet been inflicted? Is there any fundamental reason why a justiciable action does not arise until after actual injury? Even in municipal law there are cases where an action may be begun before any injury has been suffered. An action for damages for the anticipatory breach of a contract, a bill to quiet the title to land, or to restrain the issuance of municipal bonds are instances in which actions are recognized and enforced by municipal law, although no injury has as yet been suffered by the plaintiff. I know of no case in which there has been a breach of commonly accepted rules of conduct by one nation against another, involving only a legal and not a political question, in which there has been a demand for arbitration prior to the infliction of actual injury. But I conceive that there may be such cases, and there does not seem to be any adequate reason why the actual infliction of injury is an inseparable incident to the existence of such a claim.

But the suggestion may be made that, especially in cases involving the interpretation of treaties, the fact that no actual injury has been inflicted renders the question political; that in such case the demand for arbitration will be in an effort to restrain the action of a sovereign power, and, therefore, the question is political and no justiciable.