Papers Relating to the Foreign Relations of the United States, 1926, Volume I

500.C114/4451

The British Ambassador (Howard) to the Secretary of State³⁷

Washington, December 23, 1926.

No. 817

Sir: I have the honour, on instructions from His Majesty’s Government, to communicate herewith a note on the subject of the proposal which the United States Government have made with regard to the accession of the United States to the protocol of Signature of the Statute of the Permanent Court of International Justice.

This note embodies the decisions arrived at by the League Conference which was held at Geneva in September last to consider the United States reservations to the Protocol of the Statute of the Permanent Court of International Justice and is in the form recommended by its president.

I have [etc.]

Esme Howard

[Enclosure]

British Note Replying to the American Note of February 12, 1926, Regarding the Accession of the United States to the Protocol of Signature of the Permanent Court of International Justice

With reference to the note from the United States Government of February 12th, 1926, His Majesty’s Government in Great Britain have the honour to state that they have learned with the deepest interest of the proposal which the United States have made with regard to their accession to the Protocol of Signature of the Statute of the Permanent Court of International Justice, and they have examined the matter at a conference of Governments of States signatories of the Protocol.

His Majesty’s Government are happy to be able to say that consideration of the five reservations subject to which the signature of the United States would be affixed to the Protocol, and of the method of satisfying these reservations, has resulted in the following conclusions:

Reservation I

His Majesty’s Government agree that the accession of the United States to the Protocol of December 16th, 1920, and the Statute of the Permanent Court of International Justice annexed thereto 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 Peace of Versailles of June 28th, 1919.

Reservation II

His Majesty’s Government agree that the United States may participate, through representatives designated for the purpose and upon an equality with the other States Members of the League of Nations represented in the Council or in the Assembly, 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.

Reservation III

His Majesty’s Government agree that the United States 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.

Reservation IV

A. His Majesty’s Government agree that the United States may at any time withdraw its accession to the Protocol of December 16th, 1920.

In order to assure equality of treatment, it seems natural that the signatory States, acting together and by not less than a majority of two-thirds, should possess the corresponding right to withdraw their acceptance of the special conditions attached by the United States to its accession to the said Protocol in the second part of the fourth reservation and in the fifth reservation. In this way the status quo ante could be re-established if it were found that the arrangement agreed upon was not yielding satisfactory results.

It is to be hoped, nevertheless, that no such withdrawal will be made without an attempt by a previous exchange of views to solve any difficulties which may arise.

B. His Majesty’s Government agree that the Statute of the Permanent Court of International Justice annexed to the Protocol of December 16th, 1920, shall not be amended without the consent of the United States.

Reservation V

A. In the matter of advisory opinions, and in the first place as regards the first part of the fifth reservation, the Government of the United States will, no doubt, have become aware, since the despatch of their note of February 12th, 1926, of the provisions of articles 73 and 74 of the Rules of Court as amended by the Court on July 31st, 1926 (Annex A). His Majesty’s Government believe that these provisions are such as to give satisfaction to the United States, having been made by the Court in exercise of its powers under article 30 of its Statute. Moreover, they will be disposed to study with the United States the possible incorporation of certain stipulations of principle on this subject in a protocol of execution such as is set forth hereafter (Annex B), notably as regards the rendering of advisory opinions in public.

B. The second part of the fifth reservation suggests to His Majesty’s Government that a distinction should be drawn between advisory opinions asked for in the case of a dispute to which the United States are a party and that of advisory opinions asked for in the case of a dispute to which the United States are not a party but in which it claims an interest, or in the case of a question other than a dispute in which the United States claim an interest.

As regards disputes to which the United States are a party, His Majesty’s Government may perhaps confine themselves to a reference to the jurisprudence of the Court, which has already had occasion to pronounce upon the matter of disputes between a Member of the League of Nations and State not belonging to the League. His Majesty’s Government hope that they may consider that this jurisprudence, as formulated in Advisory Opinion No. 5 (Eastern Carelia), given on July 23rd, 1923, meets the desire of the United States.

As regards disputes to which the United States are not a party but in which they claim an interest, and as regards questions other than disputes in which the United States claim an interest, His Majesty’s Government, in agreement with the Governments of the other signatory States, understand the object of the United States to be to assure to themselves a position of equality with States represented either on the Council or in the Assembly of the League of Nations. With this principle His Majesty’s Government are quite prepared to agree. But the fifth reservation appears to rest upon the presumption that the adoption of a request for an advisory opinion by the Council or Assembly requires a unanimous vote. No such presumption, however, has so far been established. It is therefore impossible to say with certainty whether in some cases, or possibly in all cases, a decision by a majority is not sufficient. In any event, His Majesty’s Government are disposed to guarantee to the United States a position of equality in this respect—that is to say, in any case where a State represented on the Council or in the Assembly would possess the right of preventing by opposition, in either of these bodies, the adoption of a proposal to request an advisory opinion from the Court, the United States shall enjoy an equivalent right.

His Majesty’s Government attach great importance to the value of the advisory opinions which the Court may give as provided for in the Covenant. They are confident that the Government of the United States entertain no desire to diminish the value of such opinions in connection with the functioning of the League of Nations. Yet the terms employed in the fifth reservation are of such a nature as to lend themselves to a possible interpretation which might have that effect. The Members of the League of Nations would exercise their rights in the Council and in the Assembly with full knowledge of the details of the situation which has necessitated a request for an advisory opinion, as well as with full appreciation of the responsibilities which a failure to reach a solution would involve for them under the Covenant of the League of Nations. A State which is exempt from the obligations and responsibilities of the Covenant would occupy a different position. It is for this reason that the procedure to be followed by a non-member State, in connection with requests for advisory opinions is a matter of importance, and, in consequence, His Majesty’s Government would desire that the manner in which the consent provided for in the second part of the fifth reservation will be, given should form the object of a supplementary agreement which would ensure that the peaceful settlement of future differences between Members of the League of Nations would not be made more difficult.

His Majesty’s Government venture to anticipate that the above conclusions will meet with acceptance by the United States. They observe that the application of some of the reservations of the United States would involve the conclusion of an appropriate agreement between the United States and the other States signatories of the Protocol of December 16th, 1920, as was indeed envisaged by the Secretary of State of the United States in his reply to the Secretary-General of the League of Nations dated April 17th, 1926. To this end, His Majesty’s Government will be prepared to conclude with the other States signatories of the Protocol of December 16th, 1920, and the United States, a protocol of execution which, subject to such further exchange of views as the Government of the United States may think useful, might be in the form set out below (Annex B).

annex a

Extract From the Revised Rules of Court of the Permanent Court of International Justice

(Articles 71, 73 and 74, as printed herewith, were amended on July 31st, 1926).

Article 71

Advisory opinions shall be given after deliberation by the full Court. They shall mention the number of the judges constituting the majority.

Dissenting judges may, if they so desire, attach to the opinion of the Court either an exposition of their individual opinion or the statement of their dissent.

Article 72

Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request, signed either by the President of the Assembly or the President of the Council of the League of Nations, or by the Secretary-General of the League under instructions from, the Assembly or the Council.

The request shall contain an exact statement of the question upon which an opinion is required, and shall be accompanied by all documents likely to throw light upon the question.

Article 73

1. The Registrar shall forthwith give notice of the request for an advisory opinion to the members of the Court, to the Members of the League of Nations, through the Secretary-General of the League, and to any States entitled to appear before the Court.

The Registrar shall also, by means of a special and direct communication, notify any Member of the League or States admitted to appear before the Court or international organisations considered by the Court (or, should it not be sitting, by the President) as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question.

Should any State or Member referred to in the first paragraph have failed to receive the communication specified above, such State or Member may express a desire to submit a written statement or to be heard; and the Court will decide.

2. States, Members and organisations having presented written or oral statements or both shall be admitted to comment on the statements made by other States, Members or organisations, in the form, to the extent and within the time limits which the Court or, should it not be sitting, the President shall decide in each particular case. Accordingly, the Registrar shall in due time communicate any such written statements to States, Members and organisations having submitted similar statements.

Article 74

Advisory opinions shall be read in open court, notice having been given to the Secretary-General of the League of Nations and to the representatives of States, of Members of the League and of international organisations immediately concerned. The Registrar shall take the necessary steps in order to ensure that the text of the advisory opinion is in the hands of the Secretary-General at the seat of the League at the date and hour fixed for the meeting held for the reading of the opinion.

Signed and sealed original copies of advisory opinions shall be placed in the archives of the Court and of the Secretariat of the League. Certified copies thereof shall be transmitted by the Registrar to States, to Members of the League, and to international organisations immediately concerned.

Any advisory opinion which may be given by the Court, and the request in response to which it is given, shall be printed and published in a special collection for which the Registrar shall be responsible.

annex b

Preliminary Draft of a Protocol

The States signatories of the Protocol of Signature of the Permanent Court of International Justice dated December 16th, 1920, and the United States of America, through the undersigned duly authorised representatives, have agreed upon the following provisions regarding the adherence by the United States of America to the said protocol, subject to the five reservations formulated by the United States.

Article 1

The United States shall be admitted to participate, through representatives designated for the purpose and upon an equality with the signatory States Members of the League of Nations, represented in the Council or in the Assembly, 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, provided for in the Statute of the Court. The vote of the United States shall be counted in determining the absolute majority of votes required by the Statute.

Article 2

No amendment of the Statute annexed to the Protocol of December 16th, 1920, may be made without the consent of all the Contracting States.

Article 3

The Court shall render advisory opinions in public session.

Article 4

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 States 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.

Article 5

Subject to the provisions of article 7 below, the provisions of the present protocol shall have the same force and effect as the provisions of the Statute annexed to the Protocol of December 16th, 1920.

Article 6

The present protocol shall be ratified. Each State shall forward the instrument of ratification to the Secretary-General of the League of Nations, who shall inform all the other signatory States. The instruments of ratification shall be deposited in the archives of the Secretariat of the League of Nations.

The present protocol shall come into force as soon as all the States which have ratified the Protocol of December 16th, 1920, including the United States, have deposited their ratifications.

Article 7

The United States may at any time notify the Secretary-General of the League of Nations that it withdraws its adherence to the Protocol of December 16th, 1920. The Secretary-General shall immediately communicate this notification to all the other States signatories of the protocol.

In such case the present protocol shall cease to be in force as from the receipt by the Secretary-General of the notification by the United States.

On their part, each of the Contracting States may at any time notify the Secretary-General of the League of Nations that it desires to withdraw its acceptance of the special conditions attached by the United States to its adherence to the Protocol of December 16th, 1920, in the second part of its fourth reservation and in its fifth reservation. The Secretary-General shall immediately give communication of this notification to each of the States signatories of the present protocol. The present protocol shall be considered as ceasing to be in force if and when, within one year from the receipt of the said notification, not less than two-thirds of the Contracting States other than the United States shall have notified the Secretary-General of the League of Nations that they desire to withdraw the above-mentioned acceptance.

Article 8

The present protocol shall remain open for signature by any State which may in the future sign the Protocol of Signature of December 16th, 1920.

Done at , the day of , 19 , in a single copy, of which the French and English texts shall be both authoritative.

37. Similar notes, mutatis mutandis, were received from the following Governments through their representatives in Washington: Australia (transmitted through the British Ambassador), Feb. 16, 1927; Belgium, Jan. 22, 1927; Czechoslovakia, Dec. 10, 1926; Denmark, Jan. 28, 1927; Estonia, Feb. 8, 1927; France, Dec. 23, 1926; Hungary, Jan. 27, 1928; Irish Free State, Mar. 12, 1927; Italy, Mar. 15, 1927; Japan, Dec. 31, 1926; Netherlands, Jan. 15, 1927; Norway, Dec. 29, 1926; Poland, Jan. 15, 1927; Portugal, Jan. 11, 1927; Rumania, Feb. 19, 1927; Kingdom of the Serbs, Croats and Slovenes, Dec. 18, 1926; Siam, Feb. 15, 1927; Union of South Africa (transmitted through the British Ambassador), Jan. 17, 1927; Spain, May 12, 1927; Sweden, Dec. 30, 1926; Switzerland, Jan. 17, 1927.