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Under the fifth section of the covenant, advisory opinions may be requested by member nations. All matters of substance are governed by unanimous vote of the Council and matters of procedure by a majority vote. Hence, if the request for an advisory opinion be a matter of substance, as distinguished from procedure, the members of the Conference seem to be a unit on the proposition that the reservation of the United States would be unobjectionable because, in that event, it would merely place the United States, which is outside of the League, the Council and the Assembly, on a parity with the members of the Council and Assembly, for if any one of them, by voting the request for an advisory opinion, could prevent its issuance, then the United States could do likewise.
As the report, which was rendered by that very able reporter, Mr. Pilotti, shows, nobody objected to the United States being on a complete parity with the other nations adhering to the protocol of the Court which other nations were members of the League of Nations. The difficulty and natural objection arose because of this fact: That while it has not been decided as to whether a request for an advisory opinion be of substance or of procedure, the matter is open, and if it shall be subsequently held that it was a matter of procedure, to be governed by a majority and not by a unanimous vote, then if the reservation were accepted literally and some advisory opinion were requested, and if the United States had power to object, then the United States would be in more than a position of parityit would have a complete veto, so that the Committee in the Council or Assembly would be unable to ask for an advisory opinion and it might be that that whole system of advisory opinion, which has worked admirably well and which has prevented serious international disturbance, would be thus discarded and one single nation would have a veto over all the others.
Now, Sir Austen Chamberlain and the delegates from the other nations thought that that would lead to an impossible situation. They studied carefully the debates and the discussions in the Senate leading up to this reservation, and they concluded, and I think rightly concluded,-as far as one can judge
from men's external acts and not from their mental reservations or from the prejudice which may lie hidden-they drew the inference that all that the Senate desired in the second part of the fifth reservation, was that the United States should be on a parity with the other nations with regard to the question of advisory opinions. If the advisory opinions could only be unanimously requested, why the matter was easy and plain. The United States, like any other nation, might interpose its veto; but if it were to be by a majority, then the United States would vote and would be either in the majority or in the minority like the others. It was believed that that was all that the Senate, the executive and public opinion in the United States desired.
Under those circumstances the nations, in order to bring the matter down to something precise, agreed upon a draft protocol which they were willing to ratify, together with the United States, and which would cover these reservations, and here is this preliminary draft protocol as it affects the fifth reservation which, as I have said, is the only one containing any serious difficulty.
"The manner in which the consent provided for in the second part of the fifth reservation is to be given, will be the subject of an understanding to be reached by the Government of the United States with the Council of the League of Nations.
The State signatories of the protocol of December 16th, 1920, will be informed as soon as the understanding contemplated by the preceding paragraph has been reached.
Should the United States offer objection to an advisory opinion being given by the Court, at the request of the Council or the Assembly, concerning a dispute to which the United States is not a party or concerning a question other than a dispute between States, the Court will attribute to such objection the same force and effect as attaches to a vote against asking for the opinion given by a Member of the League of Nations either in the Assembly or in the Council."
That was to meet the undecided question as to whether a request for an advisory opinion was matter of procedure or substantive law, and I take it, from what I learn from Mr. Miller
and from others who had something to do with that, that there is a great diversity of opinion among both jurists in the Court and in the League, as to whether it is substance or procedure, and that question may not be settled for some time to come.
Then the report goes on to explain that the first part of the reservation, as desired by the United States, is entirely satisfactory.
As regards the second case, the reply can only consist in a declaration by the signatory States recognizing the United States of America as enjoying equality with the States Members of the League represented in the Council or the Assembly. It follows from the principle of equality that opposition by the United States of America to the adoption by the Council or the Assembly of a request for an advisory opinion would have exactly the same effect as a negative vote by a State represented in the Council or the Assembly. Its effect would only be that of an absolute 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
That was the situation and that is the situation that the gentlemen of the Bar must really understand. It is not understood at all by the public, and there will be an enormous amount of confusion on the subject. At the present time the coordination of the United States with the International Court of Permanent Justice means much to the world.
The President of the United States has said something about it to which I have adverted in the report, and he has stated that unless the reservations were accepted, there was nothing further to be done about it. I hesitate to think that that situation will arise. It seems to me that this report of the Nations at the Conference is not a refusal even to accept the latter part of the fifth reservation. It calls for clarification on the subject. The Committee of which I am Chairman, does not think it was the intention of the Senate of the United States, in the fifth reser
vation, to ask for more than a position of equality in that regard with the member nations of the League. I incline to believe that what our Senate and what our Executive intended was that the United States should be placed on a parity with the other Nations in regard to this matter of advisory opinions, and therefore I think that the suggested Protocol by the forty nations is merely an acceptance conditioned upon their understanding of the rather vague language of the reservation.
Your Committee feels that this is a matter of world-wide import, involving, as it does, legal questions and matters which would be difficult for the layman to understand who has not had a training in the law, and it is the opinion of your Committee that if the members of the Bar can take no leadership and initiative on matters of such great weight, then the situation is a sorry one indeed. Laying aside all contentious matters and all those matters of prejudice that might be projected into the discussion, your Committee unanimously feels that we should adopt some resolution which would not leave us in the apparent predicament in which we now are, and therefore your Committee proposes 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.
I thank you for your very courteous attention and thank you. Mr. President. (Applause.)
REPORT OF THE COMMITTEE ON INTERNATIONAL ARBITRATION.
To the New York State Bar Association:
At our last annual meeting and in pursuance of the unbroken policy of this Association in its efforts to bring about international arbitration and to promote the development of international law, the following resolution was passed:
"That the New York State Bar Association joins in what it believes to be the wise judgment of the American people, that the United States ought to become one of the supporters of the Permanent Court of International Justice at the Hague, and that our Government therefore should adhere to the protocol establishing the Court, in the manner set forth by President Harding in his message to the Senate of February 24, 1923, and as endorsed in his two annual messages by President Coolidge." Since then the matter has become somewhat confused and complicated by the injection of new and unforeseen factors into the situation.
On January 27, 1926, the Senate of the United States by a vote of 76 to 17 resolved to adhere to the Permanent Court of International Justice with five reservations. These reservations, the first four of which had been anticipated and generally acquiesced in, were as follows:
That such adherence shall not be taken to involve any legal relation on the part of the United States to the League of Nations or the assumption of any obligations by the United States under the Treaty of Versailles.
II. That the United States shall be permitted to participate through representatives designated for the purpose and upon an equality with the other States, Members, respectively, of the Council and Assembly of the League of Nations, in any and all proceedings of either the Council or the Assembly for the election of judges or deputy-judges of the Permanent Court of International Justice or for the filling of vacancies.
III. That the United States will pay a fair share of the expenses of the Court as determined and appropriated from time to time by the Congress of the United States.
IV. That the United States may at any time withdraw its adherence to the said Protocol and that the Statute for the Permanent Court of International Justice adjoined to the Protocol shall not be amended without the consent of the United States.