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The Concept of Legality in International Arbitration

Published online by Cambridge University Press:  04 May 2017

Extract

The movement for the creation of a definite and permanent organ for the authoritative declaration of international law in controversies between states involves in it a transition from the concept of moral to that of legal obligation. The cardinal element in the concept of legality, that which distinguishes moral duty from legal obligation, is that in the latter case the duty is not enforced only through a general sentiment of right, but through a definite organization. An obligation may be said to be legal when in its determination and enforcement, definitely constituted organs are active. The obligation of a moral, ethical, or social duty, which is backed only by the general sentiment of the community, may be felt just as strongly by individuals as the legal obligation which is determined by a definitely appointed body of men. Yet this very definiteness of organization serves to impart greater strength, or at least rigidity, to the legal principles.

Type
Research Article
Copyright
Copyright © American Society of International Law 1911

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References

1 “Naturalization transfers allegiance, but not existing state obligations.” Abbietti case, Moore, Int. Arb., Vol. 3, p. 2347.

2 The Alleghanian, Moore, Int. Arb., Vol. 2, p. 1624.