RESPONSIBILITY OF STATES
In the discussion of the development of questions relating to responsi-
bility, it is sufficient to establish—Germany maintains, in her reply to the
aforementioned inquiry—that the principles of international law, whether
derived from contractual obligation or from common usage, are actual rules
of law which bind the interested States. It seems useless, she adds, to dis-
cuss in detail the ground for the binding force of international law. How-
ever, this is just precisely the tendency of one of the schools. It is a prac-
tical averment, which bases responsibility upon the will of the State. Re-
sponsibility would thus assume a highly inter-State character, eliminating
therefrom every consideration in reference to individuals, and would be
utterly subjected to the doctrines derived from those two sources. Conse-
quently, there would be no occasion for the application of any principles
whatsoever. The Government of Japan, on the other hand, in its reply to
that same questionnaire, states that the legal binding force of responsibility
goes so far as to render the conduct of States subject to the rules and prin-
ciples of the law of Nations. This is, indeed, a broader view, which would
also exert considerable influence in the practical solution of various forms of
responsibility. Moreover, this view is more in line with the statutory provi-
sions of the International Court of Justice, which may be considered, at the
present stage of international affairs, as one of the organizing agencies of
the system of substantive law.
(c) There is no question but that, upon undertaking a scientific compila-
tion or codification of matters in reference to responsibility, it would be
extremely useful to lay a legal foundation therefor, which, while not follow-
ing any school in particular, should have a broad and flexible scope, to per-
mit of proper application to cover all the practical situations arising from
the doctrine of State responsibility, as it is at present conceived in the
juridical mind of the world. It would not be quite possible to exclude alto-
gether some principle to serve as a general guide in the establishment of a
system covering responsibility of States, the spirit of which, either expressly
or implicitly, should be ever present in any and all proceedings. Even
though this principle might not be expressly stated, it would become neces-
sary as judicial precedent in each and every one of the problems derived
therefrom,
And, just which should this principle be? The doctrine of the common
assent of nations has been properly objected to; and the objections raised to
the form propounded by the Preparatory Committee of the Codification
Conference are due, in part, to a confusion of views. It should be borne in
mind, however, that common assent has a double significance: first, the one
which may be termed, as Mr. R. Erich has done, the legislative assent cover-
ing the rules of the law of Nations; and, second, the rules of conduct to
which States and other political entities should conform in order to be
