Strange as it may seem, a coherent theory of expropriation as a separate institution has not been developed in the literature of international law. For the most part only partial aspects of the subject have been treated, and under widely differing categories, e.g., under the general title of “ rights of foreigners,” or “ denial of justice,” or “ international responsibility of states.” But international practice, as embodied in diplomatic and judicial cases, yields sufficient material from which to develop a theory of expropriation as a coherent body of rules of positive international law.

Recently, certain small uninhabited islands in the central Pacific Ocean have assumedsudden importance for the British Empire and the United States. Their value as landing places for commercial aviation and as strategic bases for air and naval forces is being increasingly recognized. Acquired during the past century by Great Britain and the UnitedStates, many of these islands have been the object of conflicting claims to sovereignty by the two nations. To clarify their status, it has been found desirable to review the past practice of these states and to examine those factors which were considered adequateto create sovereign rights over uninhabited islands in the Pacific.

The recent decision of the United States Court of Customs and Patent Appeals in the case of John T. Bill Co. Inc. v. United States, C.A.D. 57, 27 C.C.P.A. (Customs) 26,104 F. (2d) 67 (decided May 29, 1939), is of distinct importance in its bearing on the foreign commercial policy of the United States. In this case, an appellate court, for the first time, had squarely presented to it the question of giving effect to the unconditional mostfavored- nation provisions of an American commercial treaty as against a later statute containing no express reservation respecting treaty provisions. This decision may well be regarded as the turning-point in the construction given to the most-favored-nation clause by the American courts.

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.

The Panama Canal was originally conceived as a highway for peaceful commerce between nations. The extensive use of the Canal by the vessels of many countries indicates that it has fulfilled such a function. At the same time the Canal has played a part in non-peaceful intercourse. It has facilitated the transportation of materials of war and of troops. It has enabled "vessels of war to move rapidly from ocean to ocean, thus affecting naval strategy. From the commencement of its undertaking the United States Government has regarded the Panama Canal as an instrument of national defense. These facts serve to underline the importance of the Canal to all maritime states in war as well as in peace.

It is impossible to deny that the early rule of international law was that the head of state, either directly or through his agents, was alone competent to make treaties, which were binding upon his successors. This was natural at a time when no type of international agreement was known other than the treaty in solemn form to which monarchs were parties. Today, new types of agreement have come into being, to which the parties are not heads of states but either the state itself (as in the Treaty of Versailles, 1919) or governments or departments of state. In all these cases, and even in cases where the parties are formally the heads of states, the unit now considered to be bound is the state, through its organs. This substitution of states for monarchs as the subjects of the law of nations, at any rate in the matter of treaties, has been brought about very largely by the French and American Revolutions of the eighteenth century, and by the development of the notion of the state as an international person. The question of the competence to make treaties binding on states, who may by their laws have limited that competence, has therefore become one of great interest in modern theory.

Measures of expropriation and requisition enacted during the Spanish conflict by both the Republican and the Nationalist Governments have given rise to a series of cases which involve fundamental questions relating to state immunity, the effect of the acts of foreign states and governments, and the consequences of de facto recognition. While the decisions in general follow those laid down in similar cases growing out of the Soviet decrees of nationalization, the Spanish Civil War cases contain sufficient elements of novelty to justify their careful study. Both contending parties endeavored by requisition to obtain possession or control of Spanish vessels wherever situate, and the ensuing claims by the owners or the adversary government before foreign courts compelled an examination of the relative status of the de jure government of Spain and of the insurgent government of General Franco during a civil “war” which abounded in anomalous situations.

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?