No CrossRef data available.
Article contents
The American Reservations and the Permanent Court of International Justice*
Published online by Cambridge University Press: 04 May 2017
Extract
More than seven years have now passed since the treaty creating the Permanent Court of International Justice was opened for signature at Geneva.1 For more than six years, the court has been at work,2 and it is now holding its fourteenth session. In this period, it has handed down eleven judgments and fifteen advisory opinions, and has thus made a substantial contribution to the better ordering of the international life of our time.3 Few if any informed people had envisaged such a large measure of usefulness for the court before it was established, and most of us had not dared to hope that in such a short time it would have builded its foundations so firmly. As an agency for the extension of the application of law in international affairs, the court now holds an assured position, and it offers promise of large influence toward reducing international friction in the future. It now seems improbable that the world will ever again be willing to be without this or a similar tribunal, and if its present organization is not to be deemed as final, it seems clear that the existing court must serve a,s the basis of any future attempt to achieve a better administration of international justice according to law.
- Type
- Research Article
- Information
- Copyright
- Copyright © American Society of International Law 1928
Footnotes
*
An address delivered on the Jacob H. Schiff Foundation at Cornell University, March 26, 1928.
References
1 The Protocol of Signature, to which the Statute of the court was “ adjoined” , was opened for signature on December 16, 1920. For the official texts, see Publications of the Court, Series D, No. 1.
2 See Manley O., Hudson , “ The Sixth Year of the Permanent Court of International Justice,” this Journal , Vol. 22 , p. 1, continuing a series of annual articles begun in 1923 Google Scholar.
3 On March 3,1928, the court gave its fifteenth advisory opinion, concerning the jurisdiction of the courts of Danzig with respect to pecuniary claims of Danzig railway officials who have passed into the Polish service against the Polish Railway Administration. See Publications of the Court, Series B, No. 15. [On April 26, 1928, the court handed down its twelfth judgment, in a case between Germany and Poland, relating to the admission of children to the primary schools in Polish Upper Silesia. A sixteenth advisory opinion, on the interpretation of the Greco-Turkish agreement of December 1, 1926, was given on August 28, 1928. A thirteenth judgment, on the merits of the case concerning the factory at Chorzow, was given on September 13, 1928.]
4 For a list of signatories, see Publications of the Court, Series E, No. 3, p. 35. [Chile's ratification on July 20, 1928, brought the number of ratifying states to forty-one.]
5 For a list of these treaties, see Publications of the Court, Series E, No. 3, pp. 55 ff.
6 This limited effect of the proposed adhesion by the United States has often been emphasized. See, especially, Root, Elihu , “ The Permanent Court of International Justice,” 1923 Proceedings of American Society of International Law, pp. 1, 14 Google Scholar; Kraus, Herbert , “ La Cour Permanente de Justice Internationale et les Etats Unis d'Amerique ,” 7 Revue de Droit Internationale et de Legislation Compareé, 3rd Ser., pp. 281, 295 Google Scholar.
7 The Senate's resolution contains an additional “ understanding” and an additional construction, which were not included among the “ reservations and understandings” of which Acceptance by exchange of notes was required.
The text of the Senate resolution is to be found in Sen. Doc. 45, 69th Cong., 1st Sess., and is reprinted in Supplement to this Journal, Vol. 20, p. 73. For comment, see this Journal, Vol. 20, p. 330.
8 The Minutes of the Geneva conference have been published as League of Nations Document, 1926, V. 26. The best comment published is that by Wright, Quincy , “ The United States and the Permanent Court of International Justice,” this Journal, Vol. 21, p. 1 Google Scholar.
9 On May 1,1928, forty-seven of the signatories had replied to the Secretary of State of the United States. Of these, Albania, Cuba, Greece, Liberia, and Luxemburg accepted the proposals of the United States without condition. The acceptances of Brazil, the Dominican Republic and Uruguay have also been forecast. Fifteen of the replies were mere acknowledgments, and no reply had been received from three of the signatories. The replies from the following were in accordance with the recommendations of the Geneva conference: Australia, Belgium, Czechoslovakia, Denmark, Estonia, France, Great Britain, Hungary, India, Irish Free State, Italy, Japan, Netherlands, New Zealand, Norway, Poland, Portugal, Rumania, Siam, South Africa, Spain, Sweden, Switzerland, Yugoslavia. [See Publications of the Court, Series E, No. 4. pp. 125-127.]
10 Secretary Hughes' condition did not mention the Treaty of Versailles.
11 See the excellent comment by Herbert Kraus, op. cit., pp. 298 ff.
12 The reservation does serve the purpose of indicating that the United States does not adhere to the protocol as a member of the League of Nations, and this indication may be thought to have been necessitated by the introductory words in the protocol itself.
13 The contrary view of Erich, M. (Finland), set forth in League of Nations Document, 1926, V. 26, p. 72 Google Scholar, is fully answered by Mr. Quincy Wright in this Journal, Vol. 21, p. 9.
14 Of course it would not be beyond the competence of our treaty-making power to obligate the United States to pay a definite amount of the expense, or an amount to be determined by a definite method. Such an obligation was assumed by the United States in the convention of May 20, 1875, creating the International Bureau of Weights and Measures.
15 See, however, a proposal to this effect by the writer, in the American Bar Association Journal, February, 1922, p. 85.
16 The discussion at the Geneva conference was to some extent confused by a suggestionthat a single signatory might withdraw its acceptance of the American conditions, so as to put an end to the effect of the American adhesion. But it seems questionable whether such a withdrawal could be effected without an operative denunciation of the protocol itself.
17 Following the procedure adopted in drawing up the Convention for the Pacific Settle ment of International Disputes of October 18, 1907, revising a similar convention of July 29, 1899, a new treaty covering the same subject-matter may be made by some of thesignatories of an existing treaty. See the discussion of this point by Mr. Quincy Wright,, this Journal , Vol. 21, p. 13.
18 It is surprising, therefore, that Senator Walsh, admitting that there can be “ no possible objection” to this provision, states that it is a suggestion “ that the statute be amended” and that for this reason “ a resubmission of the Protocol to the Senate would be imperative.” Walsh, Thomas J. , “ The Present World Court Situation,” 15 Kentucky Law Journal, 299,. p . 306 Google Scholar.
19 The fifth reservation was first proposed in its final form on January 23, 1926 (67 Cong. Record, p. 2656), and as it was voted by the Senate on January 27, 1926, there was practically no opportunity for a discussion of the text outside the Senate, nor was there much discussion of the wording in the Senate itself.
20 On the meaning of this provision, and on the court's advisory opinions in general, see Hudson, Manley O. , “ The Advisory Opinions of the Permanent Court of International Justice,” International Conciliation, November, 1925 Google Scholar, No. 214.
21 The point might become important if an effort were being made to deprive the court of this competence altogether, by an amendment to the Covenant.
22 For the text of the amendment adopted on September 7, 1927, see Publications of the Court, Series D, No. 1 (addendum).
23 This point was made by several participants in the debate in the United States Senate.
24 See Pound, Roscoe, “ The Canons of Procedural Reform,” 12 American Bar Association Journal, p. 541 (1926)Google Scholar; and the symposium in 6 Oregon Law Review, pp. 36-54 (1927).
25 Publications of the Court, Series B, No. 5.
26 No significance is to be attached to the fact that this refusal to give an opinion is pubished as No. 5 in the collection of the court's advisory opinions in Series B of its publications.
27 Fachiri, Alexander P., The Permanent Court of International Justice, pp. 163-4 Google Scholar; McNair, Arnold D., “ The Council's Request for an Advisory Opinion from the Permanent Court of International Justice,” British Year Book of International Law, 1926, p. 1 Google Scholar; Fernandes, Raul, The United States and the Permanent Court of International Justice (Published by the American Foundation), p. 15 Google Scholar. Cf., 2 Oppenheim, International Law (4th ed. by McNair), p. 55. See also, a volume of opinions by various jurists, entitled Agrarian Reform in Roumania and the Case of the Hungarian Optants in Transylvania before the League of Nations, particularly the opinions by Marcel Sibert (p. 273) and Karl Strupp (p. 297). Since the publication of his book in 1925, Mr. Alexander P. Fachiri seems to have changed his opinion. In an address at the Geneva Institute of International Relations in August, 1928, he said: “ I have to admit that I have held vacillating views, and even yet have not come to a definite conclusion.” Problems of Peace (Second Series), p. 86.
For a contrary view, see Baker, P. J., “ The Obligatory Jurisdiction of the Permanent Court of International Justice,” British Year Book of International Law, 1925, p. 75 Google Scholar; 1 Gonsiorowski, Soeiété des Nations et Problémes de la Paix, p. 473.
28 The argument that only qualified unanimity is required finds some support in the court's Advisory Opinion No. 12, in which the view was expressed that in dealing with a dispute between Great Britain and Turkey, referred to the Council by the agreement of the parties in the Treaty of Lausanne, the Council's decision should be taken by unanimous vote, but the votes of the parties' representatives should not be “ counted in ascertaining whether there is unanimity.” Publications of the Court, Series B, No. 12, p. 33. At the Geneva conference, Sir Hurst, Cecil (British Empire) deduced from this that if the Council were dealing with a dispute under Article 15 of the Covenant, and “ desired to be fortified by an opinion of the Permanent Court, the votes of the parties to that dispute would not be counted in any decision upon the question whether or no an advisory opinion should be taken.” See Minutes of the Geneva conference, p. 24 Google Scholar.
29 This suggestion by M. Rolin (Belgium) was supported by M. Pilotti (Italy). See Minutes of the Geneva conference, pp. 23, 26. See also, note 53, infra p. 794.
30 Subject, of course, to whatever modification should be made as a result of Article 15, paragraph 10, of the Covenant.
31 See the writer's discussion of these cases in International Conciliation, No. 214, pp. 349 ff.
32 See the appreciation of this point by M. Buero (Uruguay), Minutes of the Geneva conference, p. 32.
33 Lape, Esther Everett , “ A Way Out of the Court Deadlock,” Atlantic Monthly, October, 1927, p. 517 Google Scholar
34 This statement was made by Miss Lape (op. cit., p. 526), but the idea had been previously expressed by Sir George Foster (Canada) at the Geneva conference. Minutes of the Geneva conference, p. 29. See comment by M. Rolin (Belgium), p. 37.
35 British Parliamentary Papers, Cmd. 2214 (1924).
36 Such jurisdiction previously existed, also, in Missouri and in Vermont. See Hudson, Manley O., “ The Advisory Opinions of the Permanent Court of International Justice,” International Conciliation, No. 214, pp. 352 Google Scholar ff.
37 See, for instance, the recent opinions reported in (1926) 254 Mass. 617, (1927) 159 N.E. 55, 70.
38 See (1927) 138 Atl. 284.
39 See (1925) 128 Atl. 691.
40 See (1919) 30 Del. 406.
41 See (1926) 111 So. 252.
42 See (1927) 114 So. 887.
43 See (1927) 113 So. 584.
44 See Loring v. Young (1921), 239 Mass. 349.
45 See this Journal , Vol. 20, p. 150.
46 This was recognized by Senator Borah in the course of the Senate debate. See 67 Cong. Record, p. 2289.
47 op. cit., p. 15. The suggestion of Sefior Fernandes was quoted by M. Marcel Sibert in the volume on Agrarian Reform in Roumania, p. 376-7, but this quotation found no place in the original publication of his paper in 34 Revue Générale de Droit International Public, p. 561.
48 For a review of the Council's action on matters with regard to which the earlier advisory opinions of the eourt were given, see Hudson, Manley O. , “ The Third Year of the Permanent Court of International Justice,” this Jotjbnal, Vol. 19, p. 68 Google Scholar.
49 This was pointed out in the Senate debate by Caraway, Senator , and Borah's, Senator reply carried an intimation that “ membership” in the court carried some responsibility for accepting its advisory opinions. See 67 Cong. Record, p. 2289 Google Scholar.
50 See Publications of the Court, Series A, No. 9, p. 6. [The injunction was denied by the court in the judgment given on Sept. 13, 1928.]
51 Burdick, Charles K., Law of the American Constitution, p. 70 Google Scholar; Edward S. Corwin, The President's Control of Foreign Relations, c. III ; Ralston Hayden, The Senate and Treaties, 1789-1817, c. IX; John M. Matthews, Conduct of American Foreign Relations, c. IX; Wright, Quincy, Control of American Foreign Relations, pp. 249 Google Scholar ff.
52 The declaration of the Secretary of State, in his reply to the Secretary-General of the League of Nations on April 18, 1926, that he had “ no authority . . . to modify the conditions and reservations or to interpret them,” is not to be taken as an assertion of legal incompetence.
53 [At the Ninth Assembly of the League of Nations, the following resolution was offered by M. Motta (Switzerland) on September 8, 1928: “ The Assembly recommends the Council to consider whether it would not be desirable to submit to the Permanent Court of International Justice, for an advisory opinion, the question whether the Council or the Assembly can, by a simple majority, request an advisory opinion under Article 14 of the Covenant of the League of Nations.” (Journal of the Ninth Assembly, p. 79). In offering this resolution, M. Motta emphasized “ the importance of perhaps a more frequent and more courageous use of the advisory opinions of the Permanent Court of International Justice.” The resolution gave rise to a spirited and protracted debate in the First Committee of the Assembly, Id., pp. 229-231, 253-5, 293-4, as a result of which the resolution was adopted by the Assembly on September 24, 1928, in the following form: “ The Assembly, noting the divergencies of opinion which exist as regards the requirements for voting in the Council or Assembly a resolution requesting an advisory opinion from the Permanent Court of International Justice: Expresses the desire that, when circumstances permit, the Council may have a study made of the question whether the Council or the Assembly may, by a simple majority, ask for an advisory opinion within the meaning of Article 14 of the Covenant of the League of Nations.” Id., p. 347.]
54 The powers of the Council in such a situation as that of the Mosul Case would doubtless have to be safeguarded. [See comment by Philip Marshall Brown, in this Journal , Vol. 22, p. 599.]
55 [Judge John Bassett Moore resigned on April 11, 1928, and on September 8, 1928, Judge Charles E. Hughes was elected to succeed him.]
56 See the comments on this treaty by Chandler P. Anderson and Manley O. Hudson, in this Journal , Vol. 22, pp . 362, 368. [Similar treaties have been signed with other countries.]
57 [On September 20, 1928, the Ninth Assembly of the League of Nations adopted the following resolution: “ The Assembly: Considering the ever-growing number of matters referred to the Permanent Court of International Justice; Deeming it advisable that, before the renewal of the terms of office of the members of the Court in 1930, the present provisions of the Statute of the Court should be examined with a view to the introduction of any amendments which experience may show to be necessary; Draws the Council's attention to the advisability of proceeding, before the renewal of the terms of office of the members of the Permanent Court of International Justice, to the examination of the Statute of the Court with a view to the introduction of such amendments as may be judged desirable, and to submitting the necessary proposals to the next ordinary session of the assembly.” (Journal of the Ninth Assembly, p. 282). The debates which preceded the adoption of this resolution did not indicate any special desire among the delegates to deal with that portion of the statute which refers to advisory opinions, but the examination to the advisability of which the Council's attention is invited, may have some bearing on the consideration of the American reservations.]