“I should think it desirable that any action by the Assembly
of the League of Nations or by the Council should be quite
general and rather in the direction of conferring authority
than in exercising it.
“The matter is not very complicated. There are three respects
in which the United States is already a part of the
Court.
“(1) She is a competent suitor in the Court. The Court is
bound by the law of its creation to hear and determine cases
by and against the United States unless she refuses to
appear. This is provided by Article 35,2 by making the Court
open not only to the members of the League but ‘also to
States mentioned in the annex to the Covenant’.
“(2) The United States, as a member of the old Permanent
Court of Arbitration at the Hague, is entitled through its
members of that [Page 4] Court
to take part in making up the eligible list from which the
Judges of the Court are elected. The American group of
members of the old Court of Arbitration are authorized by
Article 5 of the Statute under which the new Court is
organized to name four persons for each vacancy in the
Court.
“The American members of the Court of Arbitration received
last year a formal request to discharge their function, but
it was deemed unwise to do this because it might have been
very unfortunate to precipitate a controversy in Washington
just on the eve of the Conference for the Limitation of
Armament.
“(3) American citizens are eligible to sit in the Court.
Witness the presence of John Bassett Moore. Incidentally the
American members of the Court of Arbitration had agreed that
if it were determined that they should make nominations they
would nominate Moore for the American member. Of course this
was known and doubtless produced an effect upon his
selection.
“There seem to be but two things of substance left. (1)—that
the United States should undertake to contribute its fair
share towards the support of the Court generally, and
(2)—that the United States should have its voice in the
election of Judges from the eligible list, without having to
become a member of the League of Nations in order to
exercise that right. So far as I can see there is no
objection to either of these things. The United States of
course would be quite willing to pay its share of the
expense of such a Court, for it is exactly the kind of Court
with the kind of jurisdiction that the United States has
been urging for many years. On the other hand, there appears
to be no objection on the other side of the ocean to having
the United States in the Court without being in the League.
I should think a provision something like this might be
effective as a basis for an arrangement. For example; a
resolution by the Assembly of the League:—
“‘Resolved, that whenever the members of the Assembly
and the Council of the League of Nations meet for
the purpose of electing Judges or Deputy Judges of
the Permanent Court of International Justice,
established under the protocol executed at Geneva,
December 16th, 1920,3 any
nation named in the annex to the covenant for the
League of Nations, and which shall undertake to bear
its fair share of the expense of maintaining the
Court, may, without becoming a member of the League
of Nations, appoint a representative who shall have
authority to sit with the Assembly throughout the
electoral proceedings, and who shall have the same
right to vote and otherwise take part in such
proceedings as the several members of the Assembly.
In case such nation, not a member of the League of
Nations, shall be one of the powers described in the
Treaty of Versailles of June 28th, 1919, as
‘principal, allied and associated powers’, then such
nation may appoint a representative to sit with the
Council during such electoral proceedings with the
same right to vote and otherwise take part in such
proceedings as the several members of the
Council.
“‘The Council is requested to take such steps as will
give effect to the foregoing resolution.’”
“Something like this will put the Council in the position
where they will feel authorized to go ahead and negotiate an
agreement, the substance of which I think is contained in
the resolution. The result will probably have to be passed
around among the powers who signed the protocol, but I
should think there would be no doubt of their assent because
the effect would be to strengthen the Court and decrease
their share of expense.
[Page 5]
“I think it is desirable to avoid the proposing of any
provision under which the United States would be called upon
formally to say they accept the terms of the protocol,
because that might seem to be a certain acceptance of the
provisions in the protocol which relate to the League of
Nations. The shorter and simpler the agreement on our part
can be made, the better. If we are called upon to accept the
provisions of a long document a lot of people will be afraid
of it and the people who want to make trouble will find much
material for distortion. Looking at the thing from the
European point of view, I should say they ought to feel that
an undertaking to contribute to the expense of supporting
the Court and the appointment of representatives to take
part in the election of Judges was an acceptance of the
Court as it is, under the statute by which it was
constituted, and that there is no practical occasion to say
anything more about the acceptance of that statute”.
I think his views are sound, and that if you were to consult Lord
Phillimore you would find that he would agree with him.
I am afraid that this will not reach you in time to secure any direct
action by the League of Nations at this session, but perhaps it is
just as well, because a year’s delay may make matters more favorable
in many respects. I shall write you again as soon as Mr. Hughes
returns from South America.
Let me say, in closing the letter, how grateful I feel for the
wonderful reception that Mrs. Taft and I were given in England and
Scotland, and to express my gratitude to you especially for the part
which you took in it. It is a red letter episode in our lives.