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veto if the request had to be approved by an unanimous vote. In the United States of America it seems to have been regarded as certain that a decision of the Council or Assembly asking the Court for an opinion requires to be unanimous; but the Committee does not consider that there is, in fact, certainty on this point, since no precedent exists in the matter,"
It is thus evident that there existed on the part of all members of the conference an earnest wish to comply with the reservations of the United States, and that they were entirely willing to place the United States in a position of equality with themselves in regard to all matters relating to the Permanent Court. It was believed both by reason of the language of the reservations and the debates in the Senate, that the United States merely desired complete equality with the other nations, but nothing more than such equality.
It would have been obviously impossible for the conference to agree to give to the United States the position of a favored or privileged State. The basis of international law upon which the utility and very existence of the tribunal depends is predicated upon the legal equality of States, and to give to one State a veto upon the issuance of advisory opinions would be an anomaly. The question remains whether such reply will make adherence by the United States impossible. We do not think that it was the intention of the Senate of the United States in the fifth reservation to ask for more than a position of equality in that regard with the member nations of the League. If so, it should not be difficult to clarify such reservation so that the adherence of the United States would be assured.
We, therefore, suggest that it would be in order for this Association to request that the President of the United States, in the event of such reply being received from the nations, to submit the matter to the Senate with the suggestion that the fifth reservation be clarified so that it will be made to appear that the United States in asking for or refusing consent to the giving of advisory opinions shall possess all the rights and privileges of other nations in that regard and shall be on a complete parity therewith. Such action would not involve
anything more than a more precise formulation of what appears to have been the real intent of the reservation.
It appears to your Committee that there is no substantial difference between the views of the member nations and the views of the United States as expressed in the Senate reservations. It would be of serious import if the United States were to defer or refuse adherence to the Permanent Court upon the narrow point of whether in the case of advisory opinions the request should be unanimous or by majority only.
It is admitted by the member nations that no advisory opinion can be issued where any nation is directly involved without its consent and that in a case where it may consider that its interests are or may be affected it shall have the same right as any member of the Council or Assembly to object to the issuance of such an opinion.
There is, at present, nothing pending before the Senate, and it would, therefore, appear incumbent upon the Executive to place before the Senate the replies of the nations, pointing out their compliance with the spirit and probable intent of the reservations and asking that the fifth reservation be made sufficiently clear and precise to meet the suggestions of the conferrers at Geneva.
In this way it will be possible to reach a final agreement marking the adherence of the United States to the Permanent Court, the existence and success of which is so largely due to the efforts of American statesmen and lawyers supported by the great body of public opinion.
On the 10th of December last the German Government signed the Court Statute and this signature will undoubtedly be followed by ratification. The United States and Soviet Russia thus remain the only great Powers which have not as yet adhered to the World Court.
We think it the duty of the Bar Association to act in a situation which unless it is remedied may result in a permanent abstention from the World Court for reasons of a merely technical and procedural character which should not be allowed to defeat the aspirations of the bar and the desires of the American people.
We, therefore, suggest the following resolution:
Resolved: That in the event that the nations adhering to the Permanent Court should notify the President of the United States of their acceptance of the Senate reservation with the qualification that the fifth reservation be clarified so as to give to the United States the same, but no greater, rights than those possessed by other member nations of the Court, that the President be requested to submit such acceptance to the Senate with a recommendation that appropriate action be taken.
All of which is respectfully submitted.
New York, January, 1927.
FREDERIC R. COUDERT, Chairman.
CHARLES C. BURLINGHAM,
CHARLES HENRY BUTLER,
DAVID HUNTER MILLER,
Mr. Coudert, we thank you for this illuminating report.
Mr. William Nelson Cromwell:
I wish to be recorded in the negative. I consider that our Government can manage our own case, and that this Association shall pass no such legislation. Therefore, I vote in the negative.
Has any gentleman any observation which he wishes to submit, aside from Mr. Cromwell?
Did I understand Mr. Coudert moves the adoption of this resolution?
I so understood.
Yes, I intended to move its adoption.
Then I rise to second that motion.
Is there anything to be said further relating to the resolution offered by Mr. Coudert, before it is put to a vote? The Chair recognizes Mr. Waldo G. Morse.
Mr. Waldo G. Morse:
I rise to inquire from the Chair whether it would be possible for the Council, for the Court or the League to define its own rules before the United States is called upon to act? The President:
The Chair is not able to speak for the Council in that respect. Whether it can define its own powers or not, is certainly not for the Chairman of the New York State Bar Association to decide. Therefore, I decline, Mr. Morse, to pass upon your request.
The request, Mr. President, was for the opinion of the Chairman of this Committee upon the subject.
Oh, the opinion of the Chairman of the Committee? Mr. Coudert, will you give us your opinion in that respect?
I am delighted that anybody should consider my opinion on the subject of great weight. I try to impress my clients of that, but I am not so sure about my brethren at the Bar. (Laughter.)
I can only say to my brethren at the Bar, in regard to this, that there is a grave difference of opinion. I am sorry that our brother, Mr. Miller, is not here, because he could give it to you in detail, and I have derived my impressions largely from him and from English jurists with whom I have talked. There is a difference of opinion as to whether the request for an advisory opinion is one of procedure and how far a substantive matter. Without wanting to pose as a mind reader, I think
that probably the predominant juristic opinion is that it is procedural. I think there is some opinion in the Council and elsewhere to the effect that it is a substantive matter, I do not think that at the present time they wish to pass upon that question, owing to the difficulties in the question inherently and the existing differences of opinion. I do not think I can state it more clearly.
Mr. Coudert, will you, for our sake, read again the resolution which you offered in order that the question may be before us clearly?
I will. This is the resolution that we reached unanimously after considerable thought on this matter, as I think that each member of the Committee had a somewhat different angle of view. follows:
The resolution that we have therefore moved is as
"Resolved, That in the event that the nations adhering to the Permanent Court should notify the President of the United States of their acceptance of the Senate reservation with the qualification that the fifth reservation be clarified so as to give to the United States the same, but no greater, rights than those possessed by other member nations of the Court, that the President be requested to submit such acceptance to the Senate with a recommendation that appropriate action be taken."
Perhaps I did not make it quite clear, as I should have, that. naturally, it is expected that in due course of diplomatic time this Protocol reached by the forty nations will reach Washington and will have to be construed either as a consent or not as a consent, or whatever it is. So we expect that the Protocol which I have explained to you, will be the reply of the great bulk of the nations. I might say incidentally, that Liberia and some of these small Nations have already adhered without question.