The problem of recognition of states and governments has neither in theory nor in practice been solved satisfactorily. Hardly any other question is more controversial, or leads in the practice of states to such paradoxical situations.The reason for this lies in the fact that the term recognition points to twoentirely different acts, not clearly separated either in theory or in practice. A codificationof the norms of general (common) international law concerning recognition must above all furnish a clear distinction between the two functions known as recognition.

At Havana on March 27, 1941, Attorney General Jackson delivered an address designed to prove that as a matter of law the United States was now obliged to render to England (and presumably others) all aid “ short of war,” while “ at the same time it is the declared determination of the government to avoid entry into the war as a belligerent.” Apparently convinced that United States military aid to one belligerent alone cannot be justified by the traditional international law, the Attorney General feels obliged first to explode as obsolete the international law conceptions of war and neutrality of the past two centuries, culminating in The Hague Conventions, and to maintain that a new international law has now been revealed in the Covenant of the League of Nations, the Kellogg Pact, the Budapest “ Articles of Interpretation” of 1934, and the Argentine Anti-War Treaty of 1933, all of which are alleged to make discrimination the new way of life for neutrals. The legislation of Congress requiring impartiality is not accorded even honorable mention. The “ new international law” is thus found in the vague and illusory monuments to the myth called “ collective security,” which crumbled under the impact of the first European crisis. It should be no surprise to the Attorney General that many international lawyers do not share his views on international law or how international law is created, or follow his unique construction of documents.

The term “ intervention” has had many applications during the course of its long history. Every treatise on international law written before the World War contained an extensive discussion, whether to approve or to condemn, of the various forms of intervention. Even after the general adoption of the guarantee contained in Article 10 of the Covenant of the League of Nations one of our distinguished American scholars felt justified in constructing a treatise on international law with intervention as the keystone of the arch. Condemnation of the alleged right of intervention came to be the dominant note in the foreign policy of a number of the Latin American governments during the nineteen twenties, when the measures taken by the United States to protect American interests in the Caribbean appeared to them to threaten the sovereignty and independence of their countries. It is one of the curious reversals of history that no sooner had Article 8 of the Montevideo Convention laid the specter of intervention, primarily with the record of the United States in view, than intervention of a new kind made its appearance in Latin America. This time the United States, as a member of the inter-American community, was called upon to cooperate in its condemnation.

Nineteenth century states exhibited an impressive uniformity in their internal organization. There was widespread agreement as to the “proper” scope of state activity. This clear separation of the spheres of “sovereign” (governmental) and “non-sovereign” (private) activity shaped the development of certain doctrines of international law. The complete jurisdictional immunity granted to foreign sovereigns implicitly, though not explicitly, assumed such a clear-cut distinction. There was little objection to the rule as long as the sovereign rarely “descended into the market-place. ” The original assumption is no longer realistic. Must the courts of foreign states still recognize sovereign immunity in litigation in which the state appears in the sphere formerly reserved to private enterprise?

The equality of states has been regarded as a basic principle of modern international law. It also constitutes an important source of friction among nations in the present world. For instance, Germany and Japan want equality of armament and colonial rights, France and the United States insist upon equality of security, and China desires the termination of her unequal treaties, while other states may have other aspirations.

Claim of the United States for amount of moneys expended in the investigation, preparationand proof of its case denied as they were in the nature of expenses of the presentation of thecase, which, according to the Arbitration Convention, are to be paid by each government;nor are such costs claimable under the heading of damages. When a state espouses a private claim on behalf of one o f its nationals, expenses whichthe latter may have incurred in establishing orprosecuting his claim prior to espousal by thegovernment may, under appropriate conditions,be legitimately included in the claim, but the Tribunal knew of no case in which a government has sought or been allowed indemnity for expenses incurred in preparing the proof or presenting a national or private claim before an international tribunal.

In the absence of international cases on the subject, there are certain decisions of the Supreme Court of the United States dealing with both air pollution and water pollution which may legitimately be taken as a guide in this field of international law where no contrary rule prevails in international law ana no reason for rejecting such precedents can be induced from the limitation of sovereignty inherent in the Constitution o f the United States.

The Tribunal finds that under the principles of international law, as well as the law of the United States, no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein,'whe the case is of serious consequence and theinjury is established by clear and convincing evidence.

The Tribunal therefore holds that the Dominion o f Canada is responsible in international law for the conductofthe Trail Smelter and that it is the duty o f the Government of the Dominion of Canada to see to it that this conduct is in conformity with the obligation of the Dominion under international law as herein determined.

No damage has occurred since the previous award o f the Tribunal (this JUURNAL, Vol. 33,1939, p. 182).

The Trail Smelter shall be required to refrain in the future from causing any damage through fumes in the State of Washington. To avoid such damage the operations of the Smelter shall be subject to a regime or measure of control as provided in the present decision. Should such damage occur, indemnity to the United States shall be fixed in such manner as the Governments acting under the convention may agree upon.