In execution of this decision of the Council, I have the honour to
transmit to you, herewith, the document C.142.M.52.1929, which contains
on page 15 and the following pages the text of the report mentioned in
the resolution and that of the Protocol annexed thereto.
I venture to send these texts in this form in order that they may reach
you without delay. I beg, however, to add that it is intended to print a
separate document containing the report and the Protocol in question,
copies of which I will not fail to transmit to you as soon as
possible.
[Enclosure]
Report Adopted by the Committee of Jurists on
the Question of the Accession of the United States of America to
the Protocol of Signature of the Statute of the
Court
On February 19th, 1929, the Secretary of State of the United States
of America addressed to each of the Governments which had signed the
Protocol of Signature of the Statute of the Permanent Court of
International Justice, dated December 16th, 1920, and also to the
Secretary-General of the League of Nations a note suggesting that an
exchange of views might lead to an agreement with regard to the
acceptance of the stipulations set forth in the resolution adopted
by the Senate of the United States on January 27th, 1926, as the
conditions upon which the United States would adhere to the said
Protocol. This note was considered by the Council of the League of
Nations at its meeting on March 9th, 1929, and cordial satisfaction
was expressed at the prospect which the note held out that a
solution might be found for the difficulties which had prevented the
adherence of the United States in 1926. On the same date, a
resolution was adopted by the Council, requesting the Committee of
Jurists, which had been appointed by the Council at its meeting on
December 14th, 1928, to consider the revision of the Statute of the
Permanent Court of International Justice, to deal with this question
as well as those with which it was already charged and to make any
suggestions which it felt able to offer with a view to facilitating
the accession of the United States on conditions satisfactory to all
the interests concerned.
[Page 17]
It has been of the greatest assistance to the Committee in the
accomplishment of this additional task that among its members was to
be found the Honourable Elihu Root, formerly Secretary of State of
the United States, and one of the members of the Committee which in
1920 framed the original draft of the Statute of the Court. His
presence in the Committee has enabled it to re-examine with good
results the work accomplished by the Special Conference which was
convoked by the Council in 1926 after the receipt of the letter of
March 2nd of that year from the then Secretary of State of the
United States informing the Secretary-General of the League that the
United States was disposed to adhere to the Protocol of December
16th, 1920, on certain conditions enumerated in that letter. The
United States did not see its way to participate, as it was invited
to do, in the Special Conference of 1926, and, unfortunately, the
proposals which emanated from that Conference were found not to be
acceptable to the United States. Nevertheless, as is shown by the
note of February 19th, 1929, from Mr. Kellogg, the margin of
difference between the requirements of the United States and the
recommendations made by the Special Conference to the Powers which
had signed the Protocol of December 16th, 1920, is not great. For
this reason, the Committee adopted as the basis of its discussions
the Preliminary Draft of Protocol annexed to the Final Act of that
Conference and has introduced into the text the changes which it
believes to be necessary to overcome the objections encountered by
the draft of 1926 and to render it acceptable to all parties. This
revised text is now submitted to the Council of the League.
The discussions in the Committee have shown that the conditions with
which the Government of the United States thought it necessary to
accompany the expression of its willingness to adhere to the
Protocol establishing the Court owed their origin to apprehension
that the Council or the Assembly of the League might request from
the Court advisory opinions without reference to interests of the
United States which might in certain cases be involved. Those
discussions have also shown that the hesitation felt by the
delegates to the Conference of 1926 as to recommending the
acceptance of those conditions was due to apprehension that the
rights claimed in the reservations formulated by the United States
might be exercised in a way which would interfere with the work of
the Council or the Assembly and embarrass their procedure. The task
of the Committee has been to discover some method of ensuring that
neither on the one side nor on the other should these apprehensions
prove to be well founded.
No difficulty has at any time been felt with regard to the acceptance
of the conditions laid down by the United States except in so far as
they relate to advisory opinions, and the task of the Committee
would
[Page 18]
have been simplified
if its members had felt able to recommend that the system of asking
the Court for an advisory opinion upon any particular question
should be abandoned altogether. The Committee, however, is of
opinion that it cannot recommend any such drastic solution. The
system of asking the Court for an advisory opinion has proved to be
of substantial utility in securing a solution of questions which
could not conveniently be submitted to the Court in any other form.
It has also on occasions enabled parties to a dispute to ask for the
submission of their difference to the Court in the form of a request
for an advisory opinion when they were for various reasons unwilling
to submit it in the form of international litigation.
The Committee has also felt obliged to reject another method by which
satisfaction might without difficulty be given to the conditions
laid down by the United States. It is that of recommending the
adoption of a rule that in all cases a decision on the part of the
Council or of the Assembly to ask for an advisory opinion from the
Court must be unanimous. As is pointed out in the Final Act of the
Special Conference of 1926, it was not then possible to say with
certainty whether a decision by a majority was not sufficient. It is
equally impossible to-day. All that is possible is to guarantee to
the United States a position of equality in this matter with the
States which are represented in the Council or the Assembly of the
League.
Furthermore, mature reflection convinced the Committee that it was
useless to attempt to allay the apprehensions on either side, which
have been referred to above, by the elaboration of any system of
paper guarantees or abstract formulae. The more hopeful system is to
deal with the problem in a concrete form, to provide some method by
which questions as they arise may be examined and views exchanged,
and a conclusion thereby reached after each side has made itself
acquainted with the difficulties and responsibilities which beset
the other. It is this method which the Committee recommends should
be adopted, and to provide for which it now submits a text of a
Protocol to be concluded between the States which signed the
Protocol of 1920 and the United States of America (see Annex, page
17.)24
The note of February 19th, 1929, from the Secretary of State of the
United States makes it clear that the Government of the United
States has no desire to interfere with or to embarrass the work of
the Council or the Assembly of the League, and that that Government
realises the difficulties and responsibilities of the tasks with
which the League is from time to time confronted. It shows that
there is no intention on the part of the United States Government of
hampering, upon unreal or unsubstantial grounds, the machinery by
which advisory opinions are from time to time requested. The
[Page 19]
Committee is thereby enabled
to recommend that the States which signed the Protocol of 1920
should accept the reservations formulated by the United States upon
the terms and conditions set out in the articles of the draft
Protocol. This is the effect of Article I of the draft now
submitted.
The next three Articles reproduce without substantial change the
corresponding articles of the draft of 1926.
The fifth Article provides machinery by which the United States will
be made aware of any proposal before the Council or the Assembly for
obtaining an advisory opinion and will have an opportunity of
indicating whether the interests of the United States are affected,
so that the Council or the Assembly, as the case may be, may decide
its course of action with full knowledge of the position. One may
hope with confidence that the exchange of views so provided for will
be sufficient to ensure that an understanding will be reached and no
conflict of views will remain.
The provisions of this Article have been worded with due regard to
the exigencies of business in the Council of the League. The
desirability of obtaining an advisory opinion may only become
apparent as the session of the Council is drawing to a close and
when it may not be possible to complete the exchange of views before
the members if that body separate. In that case, it will be for the
Council to give such directions as the circumstances may require, in
order to ensure that the intentions of the Article are carried out.
The request addressed to the Court may, for instance, be held up
temporarily, or it may be despatched with a request that the Court
will nevertheless suspend action on the request until the exchange
of views with the United States has been completed. The provisions
of the Article have purposely been framed so as to afford a measure
of elasticity in its application. Similarly, if the Court has
commenced the preliminary proceedings consequent upon the receipt of
the request for an advisory opinion and has given notice of the
request to the United States in the same way as to the other
Governments, the proceedings may, if necessary, be interrupted in
order that the necessary exchange of views may take place. What is
said in this paragraph with regard to requests for advisory opinions
made by the Council would also apply to requests by the Assembly in
the event of the Assembly making any such request.
The provisions of this Article should in practice afford protection
to all parties in all cases, but if they do not, it must be
recognised that the solution embodied in the present proposal will
not have achieved the success that was hoped, and that the United
States would be fully justified in withdrawing from the arrangement.
It is for this eventuality that provision is made in the last
paragraph
[Page 20]
of the Article. It
may be hoped that, should any such withdrawal by the United States
materialise, it would in fact be followed or accompanied by the
conclusion of some new and more satisfactory arrangement.
In order to ensure so far as possible that the parties to the
Protocol of 1920 shall be identical with the parties to the new
Protocol, Article 6 provides that any State which in future signs
the Protocol of 1920 shall be deemed to accept the new Protocol.
The remaining provisions of the draft Protocol do not call for
detailed comment, because they are in substance similar to the
corresponding provisions of the draft Protocol of 1926.
It is necessary to consider what steps will, be required to bring the
Protocol of which the text is now submitted into force in the event
of the recommendations of the Committee being accepted.
If the terms of the Protocol are approved by the Council, it will be
advisable that the Secretary-General should be directed, when
answering Mr. Kellogg’s note of February 19th, 1929, to communicate
the draft to the Government of the United States. Since the
Protocol, if approved, covers the entire ground of Mr. Kellogg’s
note, its transmission with a statement of the Council’s approval
would seem to constitute an adequate reply to that note. It should
at the same time be communicated to all, the States which signed the
Protocol of December 16th, 1920, together with a copy of the
resolution of the Senate of the United States, dated January 27th,
1926, containing the reservations of the United States.
It should also be communicated to the Assembly, in which the proposal
for the appointment of this Committee originated, in order that, if
its terms are acceptable to that body, a resolution approving it may
be passed by the Assembly in the course of its ensuing session. Any
action taken by the Assembly should be communicated to the signatory
States which are called upon to determine whether or not to sign the
new Protocol now proposed.
If the replies from the various Governments indicate a desire for a
further exchange of views with regard to the nature of the proposed
arrangement with the United States or to the terms of the draft
Protocol, it will be for the Council to decide whether such exchange
of views should proceed through the diplomatic channel or whether it
is necessary to convoke a further special conference for the
purpose, at which States not Members of the League might be
represented. In any event, such exchange of views should, if
possible, be completed before the conclusion of the Assembly, in
order that the approval by the Assembly may be obtained in 1929. A
copy of the Protocol in the terms approved will then be prepared for
signature and every effort should be made to secure that delegates
to
[Page 21]
the meeting of the
Assembly or of the special conference, if there should be one,
should be authorized to sign the instrument and should actually sign
it before they leave Geneva. The signature of representatives of
States not Members of the League should be obtained at the same
time.
As provided in Article 7 of the draft, the Protocol will come into
force as soon as it has been ratified by the States which have
ratified the Protocol of December 16th, 1920, and by the United
States, and, as soon as it has come into force, it will be possible
for the United States to take the necessary steps to become a party
to the Protocol of December 16th, 1920, and to any further protocol
which may have been concluded for introducing amendments into the
Statute of the Court.
When that happy result has been achieved, it will be possible to feel
that further progress has been made in establishing the reign of law
among the nations of the world and in diminishing the risk that
there may be a resort to force for the solution of their
conflicts.
