500.C114/758: Telegram

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

[Paraphrase.] From Root.10 I have suggested personally to those representing the signatories of the December 16, 1920, protocol the following draft for a working agreement to apply practically the second part of the fifth reservation. Opinions that have been expressed regarding this suggestion have been so far favorable that I am telegraphing the draft in full to you for your study and that of the President with the hope that you will informally advise me whether it meets with your approval and in order that you may be ready to make quick response to any request for authority which may be made by me to represent the United States in an exchange of views along the lines of this suggestion, thereby bringing about the exchange of views of an informal character which the twenty-four Governments contemplate and which is covered by the last paragraph of your letter of February 19, 1929. It may be necessary to act very rapidly as the representatives of the signatories are now here for a meeting of the Council and at the end of this week they will leave.

Before leaving here it is highly important that they reach favorable conclusions regardless of whether effect is to be given these conclusions through recommendations of Committee of Experts or through the Council’s action in accordance with authority from the twenty-four Governments in the September 23, 1926, final act.

Several minor matters which can be provided for when the protocol is redrafted after removal of the main difficulty are not dealt with in this draft working agreement. [End paraphrase]

Suggested draft for proposed working agreement:

The Court shall not, without the consent of the United States, render an advisory opinion touching any dispute to which the United States is a party.

The Court shall not, without the consent of the United States, render an advisory opinion touching any dispute to which the United States [Page 5] is not a party but in which it claims an interest or touching any question other than a dispute in which the United States claims an interest.

The manner in which it shall be made known whether the United States claims an interest and gives or withholds its consent shall be as follows:

Whenever in contemplation of a request for an advisory opinion it seems to them desirable, the Council or Assembly may invite an exchange of views with the United States and such exchange of views shall proceed with all convenient speed.

Whenever a request for an advisory opinion comes to the Court, the registrar shall notify the United States thereof among other states mentioned in the now existing article 73 of the Rules of Court stating a reasonable time limit fixed by the President within which a written statement by the United States concerning the request will be received.

In case the United States shall, within the time fixed, advise the Court in writing that the request touches a dispute or question in which the United States has an interest and that the United States has not consented to the submission of the question; thereupon, all proceedings upon the question shall be stayed to admit of an exchange of views between the United States and the proponents of the request and such exchange of views shall proceed with all convenient speed.

If after such an exchange of views, either while a question is hi contemplation or after a question has gone to the Court, it shall appear (1) that no agreement can be reached as to whether the question does touch an interest of the United States within the true meaning of the second paragraph of this article, and (2) that the submission of the question is still insisted upon after attributing to the objection of the United States 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 and if it also appears that the United States has not been able to find the submission of the question so important for the general good as to call upon the United States to forego its objection in that particular instance leaving the request to be acted upon by the Court without in any way binding the United States: then, it shall be deemed that owing to a material difference of view regarding the proper scope of the practice of requesting advisory opinions the arrangement now agreed upon is not yielding satisfactory results and that the exercise of the powers of withdrawal provided in article seven, hereof, will follow naturally without any imputation of unfriendliness or of unwillingness to cooperate generally for peace and good will.

[Paraphrase.] The foregoing draft is based on the following theory:

In the first place, the word “interest”, as used in reservation number 5, is indefinite and vague and is obviously not meant to encompass all that the many customary uses of the term denote, such as, interest in national prosperity, interest in the preservation of all the rules of the law of nations, interest in freeing peoples suffering from oppression, interest in buyers of the products of the country, and so forth.

It is not possible, in the second place, to arrive at an abstract formula [Page 6] plainly distinguishing between that which the word “interest” in the fifth reservation does or does not include.

Whenever, in the third place, a specific case should arise (in the event that this ever occurs) practical experience, as well as common sense, would find no difficulty in determining whether an interest of this country was touched by that particular question.

In the fourth place, therefore, discussion should be shifted to the concrete and specific from the abstract and general and the solution of such a question should be provided for by a friendly, prompt exchange of views on that specific point.

In the fifth place, in the event that there resulted a difference of view which is irreconcilable, this will manifest a disagreement concerning the correct scope of requests for advisory opinions so fundamental as to make advisable the resumption of the status quo ante by exercising the right of withdrawal which the fourth reservation, as extended by the December 1926 draft protocol, article 7, provides.

In the sixth place, such a tremendous preponderance of likelihood that such a controversy would not arise and be insisted upon in order to obtain an advisory opinion on any question, whatever its nature, that it would be clearly worthwhile trying out the arrangement.

The United States, in the seventh place, has much more to gain by having a question of this sort determined by discussing it with those who are proposing a request than by its being discussed by the court under a prohibition which would prevent it from entertaining the request, for then it would be up to the court to determine whether such an interest as the fifth reservation envisages were touched by the question and the United States would thereby be forced to submit to the court’s decision and to all which is implied thereby. [Root.] [End paraphrase.]

  1. Elihu Root, former Secretary of State (1905–1909). Mr. Root, acting in a purely private capacity and not as representative of the Government of the United States, was appointed by the Council of the League of Nations as American member of the Committee of Jurists which had been set up to make a preliminary study of the question of revising the statute of the Permanent Court of International Justice.