PART Ⅰ INTRODUCTORY 3
CHAPTER Ⅰ.THE SCIENCE OF INTERNATIONAL LAW AND THE LIMITATION OF THE PLACE OF LAW IN THE SETTLE- MENT OF INTERNATIONAL DISPUTES 3
Ⅰ.The Doctrine of the Limitations of the Judicial Process in International Law 3
1.The Limitation of the Place of Law as an Expression of the Theory of Sovereignty 3
2.The Doctrine of the Limitation of the Judicial Process as an Argument in Favour of Obligatory Arbitration 5
Ⅱ.The History of the Doctrine 7
3.The Original Scope of the Doctrine.Vattel 7
4.The Modern Origins of the Doctrine 9
5.Views of Writers Prior to the Hague Conferences 10
6.Kaltenborn 12
7.Lorimer 13
8.Westlake 14
9.The Method of Enumeration 16
10.Other Tests of Applicability of the Judicial Process： Justice and Adequacy of the Existing Law.The Attitude of the Parties 17
11.Determination by International Tribunals 17
12.The Conception of Justiciable Disputes 19
13.The Scheme of the Work 22
CHAPnER Ⅱ.CONVENTIONS OF PACIFIC SETTLEMENT AND THE LIMITATION OF THE JUDICIAL FUNCTION 26
14.In General 26
15.The Hague Conventions for Pacific Settlement 27
16.The Hague Arbitration Conventions 29
17.The Covenant of the League of Nations and the Charter of the United Nations 32
18.The Optional Clause of Article 36 of the Statute of the Per- manent Court of International Justice and the International Court of Justice 34
19.Treaties with the American Formulation of Justiciability of Disputes 38
20.Arbitration Conventions of the Locarno Type 40
21.The ‘General Act’ Conventions of Pacific Settlement 42
21（a）.Treaties without the Traditional Classification of Disputes 47
22.The Effect of the Doctrine of ‘Inherent Limitations’ Incorporated in Treaties 48
23.The Authority of the Doctrine of the Limitations of the Inter-national Judicial Function as adopted in Treaties 51
24.Limitations of the Judicial Function through Reservation 52
PART Ⅱ THE INTERNATIONAL JUDICIAL FUNCTION AND THE COMPLETENESS OF INTERNATIONAL LAW 59
CHAPTER Ⅲ.LIMITATION OF THE JUDICIAL FUNCTION ON ACCOUNT OF THE ABSENCE OF RULES OF INTERNATIONAL LAW 59
Ⅰ.The Meaning of the Doctrine 59
1.In General 59
2.The History of the Doctrine 60
3.Opinions of Statesmen.The Practice of States 62
4.Analysis of the Phrase ‘Rules of International Law Applicable to the Settlement of the Dispute’ 64
Ⅱ.The Completeness of the Legal System as a General Principle of Law 68
5.The Completeness of the Legal System as a Problem of Municipal Law 68
6.The Prohibition of ‘non liquet’ as an ‘a priori’ Legal Principle 71
7.The Positivist Doctrine and ‘Lacunae’ in International Law 73
CHAPrER Ⅳ.‘LACUNAE’ IN INTERNATIONAL LAW 78
8.The Peculiarities of the Problem of Gaps in International Law 78
9.Genuine Interpretation in International Law 79
（a） Imperfections of Conventional International Law 80
（b） Static Character of Customary International Law 81
（c） Absence of Co-ordinating Agencies 82
10.Gaps due to Revealed Discrepancies in the Practice of States 84
11.Judicial Activity and Gaps due to Discrepancies of Practice 85
12.Spurious Interpretation in International Law 87
13.Judicial Activity and Spurious Interpretation 89
CHAPTER Ⅴ.THE PROBLEM OF THE JUDICIAL FUNCTION IN INTERNATIONAL LAW 93
14.The Formal and Material Completeness of International Law 93
15.Absence of an Express Rule.The ‘Savarkar’ Case 96
16.The Same.Questions of State Succession 98
17.Restrictive Interpretation of Available Sources.Extinctive Prescription 101
18.Freedom of Action as a Regulative Principle.The ‘Lotus’ Case 102
19.The Principle ‘neminem laedit qui jure suo utitur’.Closure of Buenos Ayres 104
20.Limits of Permissive Rules.The Behring Sea Arbitration 105
21.Cases ‘primae impressionis’ and the Judicial Function in International Law 108
CHAPTER Ⅵ.NOVELTY OF ACTION AND NATURE OF JUDICIAL ACTIVITY IN INTERNATIONAL LAW 113
22.Novelty of Action in International Judicial Settlement 113
23.Interpretation of Treaties and Novelty of Action 115
24.International Tribunals and the Function of Filling Gaps 118
25.Filling of Gaps by Recourse to Analogy with Rules of Inter-national Law 119
26.Filling of Gaps by the Application of General Principles of Law and of Principles of Private Law 123
27.Finding of Rules by Judicial Reconciliation of Conflicting Legal Claims 127
28.Filling of Gaps by reference to the Needs of the International Community and the Effectiveness of Treaty Obligations 131
29.The Problem of ‘non liquet’ in the History of International Arbitration 135
30.The Question of ‘non liquet’ in Boundary and Territorial Disputes.The Island of Palmas Arbitration 139
31.Conclusions 142
PART Ⅲ POLITICAL DISPUTES AND THE JUDICIAL FUNCTION IN INTERNATIONAL LAW 147
CHAPTER Ⅶ.IMPORTANCE OF DISPUTES AS A TEST OF JUSTICIABILITY 147
Ⅰ.Political Disputes in General 147
1.Political Disputes as involving Important Issues 147
2.The Legal Construction of Political Disputes 152
Ⅱ.The History of International Arbitration and the Justiciability of Important Issues 153
3.The British-American Arbitrations.Arbitrations under the Jay Treaty and other Mixed Commissions 153
4.The Alabama Arbitration 155
5.The British Guiana and Alaska Arbitrations 156
6.The North Atlantic Fisheries Arbitration 157
7.Relevance of the Historical Instances of Judicial Settlement of Important Issues 159
Ⅲ.Relation between Legal and Political Disputes 161
8.Political Character of All International Disputes， including Legal Controversies 161
9.Legal Character of All International Disputes， including Political Controversies 165
10.Historical Instances 168
11.The Will of States as Determining the Justiciability of Political Disputes 171
CHAPTER Ⅷ.INTERNATIONAL LAW AND JUDICIAL DETERMINATION OF IMPORTANT ISSUES 174
12.The Function of the Doctrine ‘de maximis non curat praetor’ 174
13.The Principle ‘de maximis non curat praetor’ as a Legal Pro-position 176
14.The Protection of Vital Interests of States by International Law and by International Tribunals 181
15.Judicial Determination of the Right of Self-defence 185
CHAPTER Ⅸ.THE DOCTRINE ‘DE MAXIMIS NON CURAT PRAETOR’ AS PART OF LEGAL OBLIGATIONS 191
16.The Subjective Element in the Conception ofPolitical Disputes 191
17.Ascertainment of the Political Character of the Dispute 195
18.Conception of Political Disputes as part of Legal Obligations 197
19.The Element of Good Faith 199
20.Historical Instances.German State Succession Claims against Great Britain 202
21.The Panama Canal Tolls Controversy 204
22.The Tunis and Morocco Nationa Decrees Case 205
23.Political Character of Legal Disputes under the Optional Clause.The Belgian-Chinese Controversy in 1926 207
CHAPTER Ⅹ.THE IMPARTIALITY OF INTERNATIONAL TRIBUNALS 210
24.The Impartiality of International Tribunals and the Problem of ObligatoryJudicial Settlement 210
25.Impartiality as between the Parties to the Dispute 211
26.Impartiality between Judicial Idealism and Claims of Sovereignty.The Right to detcrmine Jurisdiction 213
27.International Tribunals and State Sovereignty 216
28.Political Impartiality and Personal Integrity 219
29.The Problem of Political Impartiality 223
30.International Judicial Function and Representation of Interests 228
31.The Impartiality of Neutral Judges 232
32.Elimination of the Element of Representation of Interests.The Problem of National Judges 236
33.The Attitude of the National Judges on the Permanent Court of hnternational J ustice 238
34.Representation of Interests and the Impartiality of the Court 240
35.The Current Arguments in Favour of the Institution of National Judges 243
36.Safeguards of Impartiality of Judges.Improvements in the Method of Election 245
PART Ⅳ STABILITY AND CHANGE IN INTERNATIONAL LAW 253
CHAPTER Ⅺ.INTERNATIONAL CHANGE AND THE JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES 253
1.The Absence of an International Legislature as a Reason for the Limitation of the Jurisdiction of Courts 253
2.The Problem of Change in International Relations 256
3.International Legislation as an Instrument of Change 258
4.Judicial Adaptation of the Law to Changed Conditions 262
5.The Absence of Provisions for Change and the Justiciability of International Disputes 265
CHAPTER Ⅻ.INTERNATIONAL CONCILIATION AS AN INSTRUMENT OF CHANGE 268
6.Conciliation as an Alternative Means of Settlement 268
7.The Development and the Present Function of the Procedure of Conciliation 270
8.The Effectiveness of the Procedure of Conciliation as an Instrument of Pacific Settlement 273
9.Conciliation and Judicial Procedure 275
CHAPTER ⅩⅢ.THE JUDICIAL APPLICATION OF THE DOCTRINE ‘REBUS SIC STANTIBUS’ 278
10.The Doctrine ‘rebus sic stantibus’ as the Negation of International Law 278
11.The Doctrine ‘rebus sic stantibus’ as a General Principle of Law 280
12.The Scope and Limitations of the Judicial Application of the Doctrine ‘rebus sic stantibus’ 284
13.The Justiciability of Disputes Involving the Application of the Doctrine ‘rebus sic stantibus’ 288
14.So-called Inter-temporal Law.Changes in the Law and Continuance of Rights 291
CHAPTER ⅩⅣ.THE DOCTRINE OF ABUSE OF RIGHTS AS AN INSTRUMENT OF CHANGE 294
15.History of the Doctrine 294
16.The Practice of International Tribunals 296
17.The Practice of Quasi-international Tribunals 298
18.The Prohibition of Abuse of Rights as a General Principle of Law 300
19.The Prohibition of Abuse of Rights as the Basis of the Law of Torts 303
20.The Function of the Doctrine of ‘Abus des Droits’ in International Law 306
21.Further Instances of the Application of the Doctrine of Abuse of Rights in International Law 308
（a） Nationality 308
（b） Air Law 309
（c） Injurious Use of Territory 311
22.The Extent and the Limitations of the Application of the Doctrine of Abuse of Rights in International Law 312
CHAPIER ⅩⅤ.EXTENSION OF JUDICIAL LEGISLATION BY THE WILL OF THE PARTIES 315
23.In General 315
24.Conferment of the Power to lay down Regulations 316
25.Conferment of the Power to propose Recommendations 318
26.Recommendations by the Tribunal ‘proprio motu’ 319
27.Conferment of the Power to decide ‘ex aequo et bono’ 321
28.Regulation of Interests and the Judicial Character of International Tribunals 324
29.The Right of the Permanent Court of International Justice to decide ‘ex aequo et bono’ 326
30.The Adequacy of International Tribunals to regulate Interests ‘ex aequo et bono’ 329
31.The Need for Legislative Decisions ‘ex aequo et bono’ on the part of International Judicial Tribunals 332
32.The Practical Limits of Legislative Decisions ‘ex aequo ct bono’ 336
33.Legislation ‘ad hoc’ by the Parties to the Dispute 336
CHAPTER ⅩⅥ.JUDICIAL DECISION AS THE STARTING POINT FOR THE MODIFICATION OF THE LAW 338
Ⅰ.By the Will of the Parties 338
34.The Place ofJudicial Decision in the Scheme of Change 338
35.Judicial Decision as Preliminary to an Award ‘ex acquo et bono’ 339
36.Judicial Decision as Preliminary to Further Negotiations 340
37.The Function of Advisory Opinions as an Instrument of Adjustment 341
Ⅱ.As Part of International Constitutional Machinery 344
38.Judgements of Courts and the Part of Political Organs 344
39.The Function of the Council of the League of Nations in the Settlement of International Disputes 347
40.The Council of the League and Judicial Settlement 350
41.Conclusions.The Problem of Change and the Rule of Law 352
PART Ⅴ DISPUTES AS TO RIGHTS AND CONFLICTS OF INTERESTS 359
CHAPTER ⅩⅦ.‘DSPUTES AS TO RIGHTS’ AS A LEGAL CONCEPTION 359
1.Claims for a Change in the Existing Law 359
2.The Meaning of the Term ‘Disputes as to Respective Rights’ 361
3.Disputes as to Rights and the Provisional Ascertainment of the Justiciability of a Dispute 365
4.The Provisional Ascertainment of ‘Arbitrability’ in the Moroccan Claims Case 367
5.Provisional Ascertainment of Justiciability in the Fourth Advisory Opinion 369
6.The Conception of ‘Disputes as to Respective Rights’ and the Practice of States 371
7.Conflicts of Interests and the Reign of Law in International Society 374
8.Conflicts of Interests and the Classification of International Disputes 377
CHAPTER ⅩⅧ.OBLIGATORY SETTLEMENT OF SO-CALLED CONFLICTS OF INTERESTS 380
9.Settlement of Conflicts of Interests under the Reign of Law 380
10.The Rejection of Obligatory Settlement of Conflicts of Interests by the General Act and Similar Conventions 382
11.The ‘ex aequo et bono’ Clause of the General Act 385
12.Arbitration and Compulsory Settlement of ‘Conflicts of Interests’ 386
PART Ⅵ THE LIMITS OF THE RULE OF LAW 393
CHAPTER ⅩⅨ.LIMITATIONS OF THE RULE OF LAW WITHIN THE STATE 393
1.In General 393
2.Administrative Law.Limitations of the Law and Limitations ofJudicial Process 394
3.Act of State.Political Questions.Conclusiveness of the Statements of the Executive 395
4.Limitations of the Sphere of Law Inherent in the Nature of the Legal Function 398
5.Limitations of Time and Place 399
6.Self-help 401
7.Real and Apparent Analogy with Municipal Law 403
CHAPTER ⅩⅩ.THE ‘SPECIFIC’ CHARACTER OF INTER-NATIONAL LAW AND THE RULE OF LAW IN INTERNATIONAL SOCIETY 407
Ⅰ.The Nature of International Law as a Problem of General Jurisprudence 407
8.In General 407
9.The Denial of the Existence of International Law 408
10.The Denial of the Legal Nature of International Law 410
11.International Law as a necessarily ‘Weak Law’ 411
12.The So-called Specific Character of International Law 413
Ⅱ.International Law as a Law of Co-ordinate Entities 415
13.Subordination and ‘Co-ordination’ in Law 415
14.The Doctrine of Co-ordination and the Theory of Self-limitation 417
15.The Doctrine of Co-ordination and the Supremacy of Force.Kaufmann 420
16.The International Law of Co-ordination as based on Law-making Agreements 423
17.The Law of Co-ordination and the Rule ‘pacta sunt servanda’.Cavaglieri and Anzilotti 424
18.The Rule ‘pacta sunt servanda’ and the Justiciability of Inter-national Disputes 426
19.The ‘Initial Hypothesis’ and the Rule of Law 428
Ⅲ.The Judicial Function and the Legal Nature of International Law 431
20.The Place of Courts in the Legal System 431
21.The Meaning of the Rule ‘omnis judex in re sua’ 434
22.International Law and General Jurisprudence 439
23.The Task of the Science of International Law 442
APPENDIX LIMITATION OF THE JUDICIAL FUNCTION IN DISPUTES BETWEEN STATE-MEMBERS OF COMPOSITE STATES 448
The Supreme Court of the United States.Political Claims of Indian Tribes against the States of the Union 448
Boundary Disputes involving Questions of Sovereignty and Jurisdiction 448
State of Rhode Island v.State of Massachusetts 449
Claims not based on a Recognized Rule of International Law.Diversion of Waters 452
Dismissal of the Claim and the Limitation of Jurisdiction.The State of South Australia v.The State of Victoria 453
The Same.Dominion of Canada v.The Province of Ontario 456
The Proposed Arbitral Tribunal in the British Commonwealth of Nations 457
Justiciability of Disputes between German States and Swiss Cantons 459
INDEX 461