The Secretary of State to the Consul at Geneva (Rand)
For Root. Since I telegraphed you last night I have had a conference with Senator Walsh on what appears to be draft of Hurst12 [Page 11] proposal which was printed in New York Times. From this it seems that Hurst proposed that League of Nations shall notify an agent of the United States of desire of either the Council or the Agency to request an advisory opinion from the Court, and that it is only when the League fails to give notice to this Government that the United States can obtain a stay before Court for purpose of negotiating with the proponents. That is to say, if League is giving the notice no stay can be procured, and this Government’s sole remedy would be to withdraw at once. Your original proposal seems to us to be far preferable to this plan. It is very doubtful indeed if Congress would authorize appointment of such a special agent. Of course it is quite likely that Congress would give authorization to the President to decide these questions and would give him, perhaps, the authority to appoint any representative he may desire. We should think it unnecessary to have any agreement on this protocol. If League of Nations desires to communicate with this Government, it can very easily do so by cable through the usual channels.
Furthermore, under Hurst proposal, whenever a question of deciding whether or not to seek an advisory opinion from the Court, the Council or the Assembly of the League shall attach to this Government’s objection the same value as that which they attach to vote of a state which is a member of the League of Nations. The Court would be excluded, by this means, from giving the same consideration, while, according to your proposition, the Council, the Assembly and the Court alike shall be required to give such value as that which they attach to vote of a member, and Court would pass on that in last resort rather than League of Nations.
You will forgive me for making so many suggestions; of course, they are not intended to be instructions, but I thought you would like to be kept fully posted with regard to objections which may be raised when matter is brought up before Senate. Senator Walsh is particularly interested in this point.
- Sir Cecil Hurst, British member of the Committee of Jurists.↩