500.C114/565

The Consul at Geneva ( Tuck ) to the Secretary of State

No. 269 Political

Sir: I have the honor to report as follows:

The Conference of States signatories to the Statute of the Permanent Court of International Justice held its first session on September 1, 1926, at the International Labor Office, and adjourned indefinitely until later in the month, after having held six meetings, the last of which occurred on the afternoon of September 3, 1926.

It will be remembered that the Conference had been convened by the Council, acting in accordance with its resolution of March 18, 1926, subsequent to a communication from the Secretary of State of the United States concerning the adhesion of the United States to the Statute of the Permanent Court, subject to certain reservations.

The Conference elected as its President Professor Van Eysinga (Netherlands) and as Vice Presidents Mr. Zumeta (Venezuela) and Sir Francis Bell (New Zealand). 39 of the 48 signatories to the Statute of the Court were represented. The large majority of these representatives were also delegates to the Seventh Assembly of the League of Nations.

In connections with the debates occurring in the six meetings of the Conference, I would respectfully refer the Department to the following telegrams from this office:27

  • September 1, 1926, 4 p.m.
  • September 3, 1926, 7 p.m.
  • September 4, 1926, 11 a.m.
  • September 6, 1926, 3 p.m.
  • September 11, 1926, 3 p.m.

In his opening speech, the President recalled the events which had preceded and made necessary the convocation of the Conference, and reminded his colleagues that it was exclusively a Conference of the representatives of the signatories of the Court Statute and that it [Page 18] did not sit in any other capacity. He underlined the importance which the adhesion of the United States to the Court Statute would have for the subsequent development of this institution and was of the opinion that its task should consist, above all, in satisfying the desires of the Government of the United States. The Conference should, he believed, take care that this adhesion should take place in conformity with the constitution of the League of Nations. He then proposed that the discussion should bear in the first place on the substance of the question and secondly on the form. The Conference then proceeded to a first reading of the reservations formulated by the United States Senate with regard to its adhesion to the Court, As reported in the first of my telegrams above mentioned, the Conference was unanimously of the opinion that there was no substantial objection to the first, second and third reservations.

With regard to the fourth reservation, Sir John Foster (Canada) stated that he believed that the second part of this reservation (requiring American consent for amending the Statute of the Court) seemed to contain an inhibition against future amendments which might be judged essential to the well working of the Court by a majority. He believed, in view of these possibilities, that it was necessary to know what was intended by this American reservation. He stated further that as the reservation now stands, if it ever became patent to the 55 members of the League that changes were necessary, they might be prohibited from bringing about such changes through the lack of consent of the United States.

The Serbian representative expressed the opinion that if the United States was asking the right to take part in deliberations, her demand was very justifiable, but if she were asking power of veto, it was an altogether different matter. This point was responsible for a discussion on the manner in which non-League Court members should take part in the changes of the Court Statute.

The Uruguayan representative believed that the situation was badly in need of clarifying, and was not certain whether one member alone could veto or whether the modification required a simple majority. He believed that if League members can veto, there will be no question as to the right of the United States to do the same. In this opinion the Venezuelan representative concurred.

Mr. Dinichert (Switzerland) expressed the opinion that the Protocol had the value of a treaty and cannot be modified without the consent of all signatories.

In support of the Canadian thesis, Sir Cecil Hurst (Great Britain) endeavored to create the impression that the entire discussion would appear to center about the United States’ right of veto in the event she should leave the Court. He declared that in such a case, no [Page 19] country could undertake to have the slightest influence in decisions of Court members.

Mr. Rollin (Belgium) who, incidentally, played one of the most important parts in the discussions and who was undoubtedly one of the most intelligent and indefatigable collaborators in the Conference, stated, with regard to the first part of the fourth amendment, that he understood that the United States was asking equal treatment. As regards the possibility of the United States leaving the Court when it wished, that unquestionably gave her favored treatment since States members of the League could not do the same thing; for, as League members, they continue to pay a share of the Court expenses, to elect judges, and on occasion to ask the Court for opinions. He believed, however, that the Conference of the Court signatories had everything to gain in giving the United States favorable treatment and nothing to lose.

The representative of Uruguay believed that the Conference should consider the position of League members in procedure involved in amending the Protocol of the Court. He asked whether, in the opinion of the Conference, unanimity was required or not. Personally, he believed that the votes of all members were required.

The Serbian representative pointed out that all decisions in the League were taken by unanimity, but that questions of procedure were settled by majority vote. He did not believe that the Conference was competent to settle the question, and thought that it should refer it to the Assembly and Council.

The President brought the first meeting to a close with the suggestion that the discussions should be resumed on the following morning with regard to the fifth reservation. He considered the first part of this reservation already met by Court rules. The second part contained a point which touched most closely on the constitutional law of the League of Nations. The reservation he believed was undoubtedly inspired by the desire to place the United States on an equal footing with other nations. He deplored the absence of an American representative who might clarify the situation.

The four remaining meetings of the Conference were devoted entirely to a discussion of the second part of the fifth reservation. Its general discussion evoked a prolonged analysis.

The Swedish representative went so far as to suggest that the American reservations should be met by counter-reservation on the part of the Court signatories. The delegates of Great Britain, France, Italy, Belgium, Czechoslovakia, Uruguay and Poland showed a most conciliatory spirit and favored the granting of every possible concession to meet America’s views.

[Page 20]

The importance of Sweden’s attitude must not be under-estimated, especially in view of the character of the man who represented her at the Conference. Unden’s28 uncompromising attitude, both in the Mosul affair,29 and in the blocking of Spain and Brazil’s claims for permanent seats on the Council, are only too well known to the League. …

Sir John Foster (Canada) was of the opinion that while America demanded something, it was not as much as had been expected. He believed, however, that great attention should be given when a country outside of the League passes a mandatory statute directed against a court of law. The Council and the Assembly were free to make any request to the Court they pleased. He considered it the duty of the Court to seek information, and it was not for the Council and the Assembly of the League to tell the Court if the United States had an interest in the case. This the Court could do itself. In short, he opposed the reservation as a direction by the United States to the Court, and emphasized the necessity for Senate action if the United States gave consent and the subsequent delay attendant thereto. He believed that the reservations were prepared on the principle of equality of treatment which was stressed by Senator Walsh in Senate debates. The United States should be put on the same plane, as regards obligations and privileges, as other members.

Sir Francis Bell (New Zealand) devoted a long speech to prove that the United States was asking preferential treatment and that the power of veto should not exist. In his opinion, League Council members were not at Geneva entirely as representatives of governments to protect their own countries, but were also there to protect the world and all countries. No member who exercized the right of veto to protect his own country could retain a seat on the Council and therefore a nation, not on the Council, should not enjoy such a right.

It became evident during the last three meetings of the Conference that two very definite points of view had developed. The first, headed by Great Britain, France and Italy, wished to have the Council propose to the United States adhesion to the Court on exactly the same footing as Council members. The second, headed by Belgium, wished to ask the Permanent Court for a ruling as to Council procedure in asking an advisory opinion. If it were then found that the American reservations demanded preferential treatment for the United States, it was hoped that the Senate would be [Page 21] willing to remodel the reservations. The first school, on the other hand, believed that a Court ruling has but little value, as there still exists the obstacle created by the right of abstention from voting of parties directly interested in the question, and the right of veto in questions in which the United States is interested is claimed in the reservation.

Sir Cecil Hurst (Great Britain) analysed the equality basis, contending that the United States sought a privileged position in not being represented on the Council and not sharing its responsibility. He opposed the Belgian proposal on the ground that the Court and the League were too young to have a jurisprudence definitely established at this stage. (It was pointed out at the time that this opinion is very much in keeping with British tradition on common law.) He considered that the right of veto in matters requiring unanimous decision must be based on participation in Council meetings and the exercize of the right of vote in that meeting only after all the difficulties of the situation had been explained.

At this juncture, Mr. Pilotti (Italy) made a proposal suggesting that the United States be asked to come in to the Court on a footing of equality. If this proposition satisfied the United States, everything would be in order. If, on the other hand, it did not, the Conference would have to apply to the Court as to whether a decision of the Council to apply for an advisory opinion required unanimity or merely a majority vote. This suggestion received the strong backing of France.

On the last day on which the Conference met, much attention was devoted to the proposal, made by the Polish representative, as a solution of the problem. It was to the effect that the American Senate’s reservations should first be accepted and then a special Conference should be called to extend the Statutes of the Permanent Court to meet the situation created by the American demands. At such a special conference, the United States should be represented. He believed that the work of meeting the American demands was divided into two stages. The first was the acceptance of the reservations and the second their codification, that is the drawing up of legal formulae required to meet the reservations. Therefore, it was most necessary to meet the second stage with a special conference to which the United States should be invited.

At this point, Sir Cecil Hurst (Great Britain) intervened, stating that the Polish proposal, in his opinion, was not complete. How could the United States, (he asked), denounce statutes as provided in the fourth reservation, once it had taken part in modifying them? If this happened, League members would be left with a modified protocol, in the event of America’s withdrawal.

[Page 22]

The Polish representative replied that the Conference ought not to discuss the United States’ leaving the Court before it had entered it. He added that Secretary Kellogg’s letter to the League stated that if any machinery was necessary to give the United States the right to participate in the election of the Court judges, it should be established after the reservations were accepted and the United States was a member. This same procedure could be followed to meet other American demands. He believed that the way was paved for the Belgian proposal, which had been heard earlier in the session, and which had brought up the question of the form of the procedure which might be followed to meet the reservations. He stated, with regard to reservation 2, concerning the election of judges, that although the Covenant did not refer to the assistance of non members of the League at the Council or Assembly, it did not forbid it, and cited instances in which non member States had assisted.

Mr. Dinichert (Switzerland), referring to the Belgian proposal, believed that the question of form was more difficult than that of substance, but that the Conference should not consider the United States as a member of the League, but as a State participating in the work of the Court. In his opinion, there were three possible methods of procedure. The first was for the Conference to ask an interpretative resolution from the Assembly as to whether it was necessary to interpret the Covenant. The second, if the United States was not satisfied with the present position, the signatories of the Court might ask it to modify its statutes. Thirdly, as suggested by the Polish representative, a Conference might be called to complete or modify the Statutes.

The favorable consideration granted to the Polish proposal was undoubtedly due to the realizing of the delegates to the Conference that there exists a growing opposition, in the American Congress, against the United States’ participation in the Court and that there exists a strong possibility that adhesion might be defeated if the question were returned to the Senate. While the Conference actually adjourned on the grounds that the members present were delegates to the Assembly, there is reason to believe that they were glad of an opportunity to postpone further immediate action and observe the reaction in the American press to the questions so far under discussion.

The Belgian representative, in discussing the problems raised by the fifth reservation, said that if the United States had a real interest in any question, it is an indisputable fact that the Court could only give an advisory opinion with the consent of the United States. It was only right that if America did not take part in the discussion, it could not be bound by an opinion. Also, its intervention might force the Court to declare incompetence. He cited as a precedent the case of Eastern Carelia when, owing to a protest by the Soviet authorities, [Page 23] the Court refused to take jurisdiction.30 He argued that the United States would possess the same right of protest. He believed that in this reservation, the United States did not ask any new privilege, but only preserved a privilege which it already possessed. The difficulty lay in the word “claims”. The United States appeared not only to be asking the right to intervention when a question concerned her, but was also asking that the fact of an intervention, without any proof of actual interest, should in itself be regarded as preventing the Court from giving an advisory opinion. It was a question if the Conference could go that far. The reservation was addressed not only to the Council and to the Assembly, but to the Court. It was impossible to declare the Court incompetent; neither a single member, nor all of them, could do this. A country could appear before the Court and give its views, but could not declare the Court incompetent. With regard to the right of veto, he stated that the comparison is not between the rights that the United States now desires and the rights already possessed by Council members, but that the comparison lies between the rights which the United States was claiming by reservation and the power which members of the Council might exercize improperly and unfairly. If a Council member were interested, it could not vote; but by declaring an interest in the case, it could vote and block a decision. If the American reservation said “claims and has interest”, there will be no difficulty; presuming the Court agreed that the United States had an interest.

In conclusion, he asked if it could not justly be said to the United States “If you claim this right which you say Council members possess, as there is doubt as to the actual rights possessed by Council members under their procedure, and as there is doubt as to whether the unanimity vote does exist in this particular case; we are prepared to ask the Court for an opinion on this point so that they can tell us what the position really is”.

The Venezuelan representative said that his government would omit no endeavor to secure the adherence of the United States to the Court. While the United States might find itself in a privileged position, he asked whether such a privilege did not derive from a high significance which should be attached to the adhesion to the Court Statutes of the most powerful democracy in the world. He believed that the fifth reservation could only be considered in connection with everything implied by the first reservation. The obligations and rights established by the Versailles treaty could not be modified according to the first reservation. The relations of the League and the Court could [Page 24] not be changed by an adhesion expressly given outside the constitutional charter of the League.

The Norwegian representative believed that the United States reservation was acceptable when the United States was party to a dispute. It became more difficult to admit the power of veto when it was not a party, especially when the Council might ask an advisory opinion by a majority vote. He did not believe that the Swedish proposal for counter-reservations to the American reservations was necessary, because a League member was protected by actual law. The United States, through reservation 4, reserved itself the right to withdraw from an arrangement. It followed that Court signatories, on their side, could withdraw also. Consequently, the “juridical consequence” of the fourth reservation might be drawn and accepted without it being necessary to formulate reservations opposing the American conditions.

The Rumanian delegate said that his country was quite ready to accept the reservation if it read in the sense that the United States simply desired to retain and exercize the same rights as other non member States on a footing of equality. He then made the important suggestion that a sub-committee be drawn up to define the exact meaning of the second part of the fifth reservation. The sub-committee of 14 members was then appointed, composed of the representatives of the following countries:

  • Belgium.
  • Canada.
  • Italy.
  • Poland.
  • Uruguay.
  • Sweden.
  • Holland.
  • Great Britain.
  • France.
  • Japan.
  • Czechoslovakia.
  • Switzerland.
  • Rumania.
  • Venezuela.

With the exception of the representatives of Sweden and Canada, who condemned the American Senate reservations as efforts to secure for the United States a privileged position unenjoyed by any member of the League of Nations, it may be said, en resumé, that the Conference of Signatories of the Statute of the Permanent Court gave the most sincere evidence of their desire to meet the American demands and to assure the entrance of the United States into the Permanent Court. The Swedish and Canadian attitude, although outbalanced by the conciliatory spirit displayed by such countries as Great Britain, France, Italy, Belgium, Czechoslovakia, Uruguay and Poland, who favored the utmost concessions to meet the American demands; must not be overlooked.

As reported in my telegram of September 11, 1926,31 it is most difficult to obtain any accurate reports with regard to the work of the [Page 25] sub-committee appointed by the Conference. This body was sworn to secrecy by its President. I learn, however, from a reliable source, that the sub-committee has appointed a drafting committee which at present is working on the outstanding difficulty of the fifth reservation. This difficulty lies in the words “has or claims” which, it is contended by the majority of the delegates to the Conference, would impair the sovereignty of the Court, since it is considered that the Court alone is competent to settle on claims of interest.

The statement appearing in the press recently, attributed to the President of the United States, wherein he stated that the fifth reservation was framed with the sole purpose of giving the United States an equality with Council member States, has aroused a great deal of interest among the delegates to the Conference. It has been suggested by some of these representatives that if the American President would make this statement officially, a great obstruction to the acceptance of this reservation would be removed. I also learn that a number of delegates favor a moderate delay in the work of the sub-committee in the hope that such an official declaration will be forthcoming.

An endeavor will be made to keep the Department informed of the activities of the Sub-Committee, but in view of the strictly private nature of its sessions, it may be difficult to obtain much accurate information.

I have [etc.]

S. Pinkney Tuck
  1. None printed.
  2. Professor O. Undén.
  3. The controversy between Great Britain and Turkey over the former Ottoman vilayet of Mosul; see League of Nations, Question of the Frontier Between Turkey and Iraq: Report submitted to the Council by the Commission instituted by the Council Resolution of September 30th, 1924 (C.400.M.147.1925.VII.).
  4. See Publications of the Permanent Court of International Justice, Collection of Advisory Opinions, Series B, No. 5, and Acts and Documents relating to Judgments and Advisory Opinions Given by the Court, Series C, No. 3 vols. i and ii (Leyden, A. W. Sijthoff’s Publishing Co., 1922).
  5. Not printed.