500.C114/445a
The Secretary of State to the Austrian Minister (Prochnik)2
Sir: I have the honor to refer to my note of February 12, 1926,3 with which I transmitted for the information of your Government a copy of the Resolution adopted by the Senate of the United States on January 27, 1926,4 setting forth certain reservations and understandings as conditions on which the United States would adhere to the Protocol of Signature of December 16, 1920, of the Statute of the Permanent Court of International Justice.5 In that note I asked to be informed whether the reservations and understandings contained in the Resolution of the Senate of the United States were acceptable to your Government as a part and condition to the adherence of the United States to the said Protocol and Statute.
Five Governments unconditionally accepted the Senate reservations and understandings, three indicated that they would accept but have not formally notified my Government of their acceptance, fifteen simply acknowledged the receipt of my Government’s note of February 12, 1926, while twenty-four have communicated to my Government replies as hereinafter indicated.
At a conference held in Geneva in September 1926 by a large number of the States signatories to the Protocol of Signature of the Statute of the Permanent Court of International Justice, a Final Act was adopted in which were set forth certain conclusions and recommendations regarding the proposal of the United States, together with a preliminary draft of a Protocol regarding the adherence of the United States, which the Conference recommended that all the signatories of the Protocol of Signature of December 16, 1920, should adopt in replying to the proposal of the United States. Twenty-four of the Governments adopted the recommendations of the Conference of 1926 and communicated to the Government of the United States in the manner [Page 2] suggested by the Conference.6 By these replies and the proposed Protocol attached thereto the first four reservations adopted by the Senate of the United States were accepted. The fifth reservation was not accepted in full but so much of the first part thereof as required the Court to render advisory opinions in public session was accepted, and the attention of my Government was called to the amended rules of the Court requiring notice and an opportunity to be heard.
The second part of the fifth reservation therefore raised the only question on which there is any substantial difference of opinion. That part of the reservation reads as follows:
“… Nor shall it (the Court) without the consent of the United States entertain any request for any advisory opinion touching any dispute or question in which the United States has or claims an interest.”
It was observed in the Final Act of the Conference that, as regards disputes to which the United States is a party, the Court had already pronounced upon the matter of disputes between a member of the League of Nations and a State not a member, and reference was made to advisory opinion No. 5 in the Eastern Carelia case7 in which the Court held that it would not pass on such a dispute without the consent of the non-member of the League. The view was expressed that this would meet the desire of the United States.
As regards disputes to which the United States is not a party but in which it claims an interest, the view was expressed in the Final Act that this part of the fifth reservation rests upon the presumption that the adoption of a request for an advisory opinion by the Council or the Assembly requires a unanimous vote. It was stated that since, this has not been decided to be the case it can not be said with certainty whether in some or all cases a decision by a majority may not be sufficient but that in any case where a State represented on the Council or in the Assembly would have a right to prevent by opposition in either of these bodies the adoption of a proposal to request an advisory opinion from the Court, the United States should enjoy an equal right. Article 4 of the draft Protocol8 states that “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 [Page 3] member of the League of Nations either in the Assembly or in the Council”, and that “the manner in which the consent provided for in the second part of the fifth reservation is to be given” should 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 Government of the United States desires to avoid in so far as may be possible any proposal which would interfere with or embarrass the work of the Council of the League of Nations, doubtless often perplexing and difficult, and it would be glad if it could dispose of the subject by a simple acceptance of the suggestions embodied in the Final Act and draft Protocol adopted at Geneva on September 23, 1926. There are, however, some elements of uncertainty in the bases of these suggestions which seem to require further discussion. The powers of the Council and its modes of procedure depend upon the Covenant of the League of Nations which may be amended at any time. The ruling of the Court in the Eastern Carelia case and the rules of the Court are also subject to change at any time. For these reasons, without further inquiry into the practicability of the suggestions, it appears that the Protocol submitted by the twenty-four Governments in relation to the fifth reservation of the United States Senate would not furnish adequate protection to the United States. It is gratifying to learn from the proceedings of the Conference at Geneva that the considerations inducing the adoption of that part of Reservation 5 giving rise to differences of opinion are appreciated by the powers participating in that Conference. Possibly the interest of the United States thus attempted to be safeguarded may be fully protected in some other way or by some other formula. The Government of the United States feels that such an informal exchange of views as is contemplated by the twenty-four Governments should, as herein suggested, lead to agreement upon some provision which in unobjectionable form would protect the rights and interests of the United States as an adherent to the Court Statute, and this expectation is strongly supported by the fact that there seems to be but little difference regarding the substance of these rights and interests.
Accept [etc.]
- Identic notes were delivered to the diplomatic representatives in Washington of all the nations signatories to the protocol of signature of the statute of the Permanent Court of International Justice.↩
- Foreign Relations, 1926, vol. i, p. 3.↩
- Ibid, p. 1.↩
- For texts of the protocol of signature, the optional clause, and the statute of the Court, see ibid., 1920, vol. i, pp. 17 and 18.↩
- See note No. 817, December 23, 1926, from the British Ambassador, Foreign Relations, 1926, vol. i, p. 30.↩
- Given by the Court on July 23, 1923. See Permanent Court of International Justice, Collection of Advisor Opinions, Series B, No. 5.↩
- Foreign Relations, 1926, vol. i, p. 36.↩