The Secretary of State to President Hoover
My Dear Mr. President: There is now awaiting our decision the question of whether this Government shall sign the Protocol of Adherence to the Statute of the World Court, on the conditions set [Page 32] out in the Resolution of the United States Senate of January 27, 1926, as this resolution was accepted by the recent protocol of September 14, 1929,35 now open for signature in Geneva. Closely involved in this decision is the question whether the United States shall also sign the protocol revising the Statute of the World Court, also dated September 14, 1929,36 and also open for signature at Geneva. This latter protocol provides for certain amendments to the charter statute of the Court which have an important bearing upon the question of our adherence. Practically all of the nations which are signatories to the World Court have already signed these protocols, during the past few weeks in which they have been open for signature, fifty nations having signed the former and forty-nine the latter. The only nations which have not signed the former to date are Albania, Costa Rica, Ethiopia, and Lithuania.
A brief summary of the considerations involved in this question seems advisable.
For over a half a century the United States has taken a leading part in promoting the judicial settlement of international disputes. Not only have its citizens been prominent in advocating such settlement as a substitute for war, but the Government, itself, has participated in many important arbitrations; and our Presidents, as well as our foreign ministers, have frequently acted as arbitrators in such disputes between other nations.
In 1899, the American delegation to the first Hague Conference was active in securing the establishment of the so-called Permanent Court of Arbitration, which still exists and in which we are members. Our Government, under Mr. Roosevelt, submitted to that body its first case, a controversy between the United States and Mexico.
This so-called Court, however, was but a step in the direction proposed by the American delegation. It is not constituted as a real court, holding regular meetings and sessions. It is a mere panel or list of about one hundred and fifty names of gentlemen who have been selected by the member states as qualified and available to sit as arbiters in any disputes which may be submitted to them. Whenever a controversy is desired to be referred to it, the arbitrators who are to sit are selected by the parties, are called out from their private lives, and the case is then referred to them.
In 1907, the American delegates to the second Hague Conference were instructed by President Roosevelt and Secretary of State Root to work for the development of this Court of Arbitration
“into a permanent tribunal composed of judges who are judicial officers and nothing else, who are paid adequate salaries, who have no other [Page 33] occupation, and who are devoting their entire time to the trial and decision of international cases by judicial methods and under a sense of judicial responsibility.”
Owing to difficulties in agreeing upon the method of selecting the judges, they were unsuccessful then; but such a Court was finally established in 1920 under the name of the Permanent Court of International Justice, commonly referred to as the World Court. Its charter was framed by a group of distinguished jurists in which the United States was represented; and it is interesting to remember that the difficulty which had prevented the establishment of the Court in 1907 was solved by the suggestion of the American member, Mr. Root, based upon the analogy of a precedent in the creation of our own Federal Constitution, the so-called Connecticut Compromise.
Although this final movement which established the Court was initiated by the League of Nations, the Court took its existence and became effective not by the action of the League but under a statute and protocol separately signed by over fifty states, not all of whom are League members. It thus owes its existence to the independent authority of these signatory states.
This Court has now been in existence for over eight years. It has rendered sixteen judgments in controverted cases and has also delivered sixteen advisory opinions on questions which have been submitted to it. Several of these judgments have been rendered in cases which were of great importance and in which bitter international controversies had existed. Both the judgments and the advisory opinions have rendered important service in settling such controversies and, thus, in preserving peace. Confidence in the Court has so developed that its business is rapidly increasing, and one of the chief purposes of the proposed amendments of its charter statute above mentioned is to provide for more continuous sessions and in other respects to increase the importance and efficiency of the tribunal.
Unless a state has signed the so-called “optional clause”, granting to the Court compulsory jurisdiction over it in certain classes of legal disputes (which it is not proposed in the present protocol that the United States shall sign), the Court can take jurisdiction only over cases which the parties themselves refer to it. It has no power to draw an unwilling suitor before it, even if that suitor be a signatory of the Court, and render judgment in respect to such suitor. The Court simply stands ready and available as a carefully chosen and experienced tribunal to which the nations of the world, if and when they choose, can refer their disputes for settlement, without the ordinary delays and difficulties which accompany the selection of arbitrators.
Under the terms of the original charter of the Court, the United [Page 34] States is already a competent suitor to appear before it. The only obligation which we should assume by joining the Court is one which we ourselves have asked for in the Senate reservations, namely, that we should pay our appropriate share of the expenses of its maintenance. I am informed that the largest contribution by any state has been but little more than thirty-five thousand dollars a year; and, although these expenses will be slightly increased in the future by an increase in the number and salaries of the judges, this obligation in any event will be comparatively trivial.
The only other changes in our present status as suitor which would be effected by our joinder would be to give us new rights and privileges. If we join the Court, we shall be admitted, under the Protocol of Adherence, to participate on an equality with the other signatory states in the election of the judges of the Court. We should also be assured that no amendment of the Charter of the Court could be made without our consent.
Far exceeding the weight of these legal considerations, by joining the Court the United States would resume its time-honored place of leadership in the great movement for the judicial settlement of international controversies, and in the future, through its representatives and jurists, exercise its proper influence in the development of the kind of court which our representatives proposed to the Hague Conference more than thirty years ago.
These considerations were pointed out by my predecessor, Mr. Hughes, in his letter to President Harding on February 17, 1923,37 advising adherence to the Court. On February 24, 1923, President Harding submitted to the Senate the proposal of adhesion. On March 3, 1925, a resolution was passed by the House of Representatives stating that it desired “to express its cordial approval of the said court and an earnest desire that the United States give early adherence to the protocol establishing the same” and expressing its readiness to participate in the enactment of such legislation as would necessarily follow such approval.
On January 27, 1926, the Senate gave its advice and consent to adherence to the Court upon five reservations. As to the first four of these reservations, no objection has been raised by any of the other signatories of the Court, and they are accepted in toto in the proposed Protocol of Adherence now before us.
The Fifth Reservation related to advisory opinions and was as follows:
“5. That the Court shall not render any advisory opinion except publicly after due notice to all states adhering to the Court and to all interested states and after public hearing or opportunity for [Page 35] hearing given to any state concerned; nor shall it without the consent of the United States entertain any request for an advisory opinion touching any dispute or question in which the United States has or claims an interest.”
As to the first half of this reservation, Article four of the Protocol of Adherence now open for signature provides:
The Court shall render advisory opinions in public session after notice and opportunity for hearing, substantially as provided in the now existing articles 73 and 74 of the Rules of the Court.
These rules provide for public hearings by the Court on [and?] advisory opinions after notice to all member states or states admitted to appear before the Court (which would cover the case of the United States whether we adhered or not). They provide for an opportunity for argument on the part of all states notified or asking to be heard and for a public delivery of the opinion in open court.
Furthermore, these rules will be incorporated into the Charter Statute of the Court in the second protocol revising the original statute which, as I first pointed out in this letter, is also open for our signature. By thus incorporating these rules, they become irrepealable and permanent; and, therefore, if we adhere to the Court, these provisions for notice and public hearing cannot be withdrawn without our consent.
By these provisions one of the chief dangers which has influenced American opinion in its objection to the rendering of advisory opinions by the Court has been removed. America’s fear lest the opinion of the Court could be sought by some nations and rendered by the Court in private, and that other nations might thus suddenly find their interests compromised by a decision of the Court on a question in which they are involved, no longer has any foundation. The Court in rendering advisory opinions must follow substantially the same procedure as is followed in controversies, or as they are termed in the Rules of the Court “contentious cases.” It must act in public; it must give general notice of its proposed hearing, in order that any one who is interested may have an opportunity to be heard; and it must hear them.
But the Court and the pending protocol go even further. In April, 1923, the Court was requested to render an advisory opinion in respect to the effect of the Treaty of Peace between Finland and Russia in reference to the autonomy of Eastern Carelia. When this request came before the Court in January, it was found that Russia, although notified of the pending hearing, refused to take any part in the proceedings. Thereupon the Court refused to go forward with the matter or to render any advisory opinion, saying that it found it to be
“well established in international law that no state can without its consent be compelled to submit its dispute[s] to [with?] other states, [Page 36] whether [either?] to mediation or to arbitration, or to any other means of pacific settlement. … The Court, being a Court of Justice, cannot even in giving advisory opinions depart from the essential rules guiding their activities as a court.”
By this ruling the Court assimilated its practice in advisory opinions where a dispute was involved between any nations to the same rule provided by its charter to govern contentious cases. It will not act unless the parties to such dispute request it to act.
This rule of conduct laid down by the Court itself will now be made imperative and binding upon it by an amendment in the new proposed protocol of revision which is before us for signature. That protocol contains new Article 68 reading as follows:
“In the exercise of its advisory functions the Court shall further be guided by the provisions of the Statute which apply to contentious cases to the extent which it recognizes them to be applicable.”
The Court, having already recognized this principle of contentious cases to be applicable, is required by this provision in its charter now to forever hereafter act accordingly.
The report of the Committee of Jurists of September 13, 1929, recommending these amendments, sets forth the reasons for these amendments as to advisory opinions. The amendments are shown to be general in character, so as to include all nations; they also show that the reason why it is proposed to assimilate the procedure on advisory opinions to the procedure on contentious cases is the fundamental reason that unless both parties to a dispute are present and heard, the opinion will not carry any weight. The report, therefore, makes it clear beyond peradventure that the consent of the disputant nations is required in every case as a pre-condition to the granting of an advisory opinion involving any dispute.
By this ruling and amendment another fear as to advisory opinions is removed. If the United States is involved in any dispute or controversy, to whatever degree, with another country, that matter cannot be brought before the World Court without the consent of the United States, even for the purpose of obtaining an advisory opinion.
It will be noticed that these last considerations fully meet the most important portion of the last half of the Fifth Reservation of the Senate. They give to the United States what amounts to an absolute veto upon an advisory opinion touching “any dispute … in which the United States has … an interest.”
There remains only that portion of the last sentence in the Fifth Reservation, which provides that the Court shall not, without the consent of the United States, entertain a request for an advisory opinion touching any question in which the United States merely claims an interest and where the claim does not amount to a dispute or controversy. [Page 37] It will be obvious at once that the scope of this remaining clause is necessarily very narrow.
If the United States has an interest in any matter which another nation is seeking to bring up for an advisory opinion which is of so vital a character that the United States would not be satisfied to appear and present its interest to the Court, but desires to shut off all consideration of the Court therefrom by its objection, that matter, in all human probability, will have already attained the character of a dispute or controversy between the two nations, in which case the United States would already have a veto power under the new Article 68 of the Charter Statute, which adopts and enacts the spirit of the Eastern Carelia decision. Otherwise, we should perforce be brought to assume that the United States under this reservation was seeking rather arbitrarily to interfere with its veto in the affairs of other nations in which it had a very slight interest—a conclusion which is not lightly to be assumed. Therefore, I think it a fair assumption to say that the field covered by this last remaining portion of the Fifth Reservation is very narrow, and the need for such a prohibition unlikely ever to arise.
Yet this very slight possibility is elaborately guarded against by the new Protocol of Adherence. So anxious have the framers of this protocol been to meet even the most unlikely desires of the United States that they have devoted the major portion of the protocol to providing machinery to meet this contingency.
Advisory opinions can only be rendered by the Court on the request of the Council or the Assembly of the League of Nations. Article 5 of the proposed protocol provides that the Secretary General of the League shall inform the United States of any proposal for obtaining an advisory opinion of the Court which is pending before the Council or the Assembly, with a view to obtaining an exchange of views between the United States and the Council or Assembly as to whether an interest of the United States is affected. Then when a request for such an opinion actually comes to the Court the Registrar of the Court shall notify the United States and give a reasonable time in which a statement of the United States concerning the request will be received. If necessary, the Court will grant a stay of proceedings in respect to the request for such time as is necessary to enable an exchange of views to take place.
In considering a request for an advisory opinion, if the United States makes objection, there shall be attributed to that objection the same force and effect as attaches to a vote against asking for the opinion given by a member of the Council or the Assembly.
After all these steps have been taken, if it appears that no agreement can be reached and the request for the opinion is still persisted [Page 38] in, and the United States is unwilling to forego its objection, the United States can withdraw immediately from the Court “without any imputation of unfriendliness or unwillingness to cooperate generally for peace or good will”.
A mere recital of these precautions makes it apparent how remote the contingency is that the United States will ever be constrained to exercise its right of withdrawal. It may be suggested here that this contingency of withdrawal might place the United States in an awkward or embarrassing position, and thus submit it to moral pressure to permit a question to which it really objects. The real hazard is more likely to be the other way. The influence of the United States is so great, the effect of its mere suggestion of withdrawal would be so embarrassing to the other nations, that there is far more likelihood of their submitting to an ill-founded objection on our part than of their forcing us to withdraw when we really had a legitimate reason for opposition to a question.
If any proof on this point were needed, the extreme consideration which has been shown in this protocol to the objections of the United States and the promptness and unanimity with which the protocol for our adherence to the Court has already been signed by practically all of the nations of the world who are members of the Court, would supply it.
It seems to me, therefore, that the dangers which seemed to inhere in the rendering of advisory opinions by the Court at the time the question was last presented to this Government in 1926 have now been entirely removed, both by the action of the Court itself and by the provisions of these new protocols. The objections which caused the Senate reservations have been met. Advisory opinions can no longer be a matter of secret procedure but must follow the forms and receive the safeguards of all formal court proceedings in contentious cases. Whenever a dispute to which we are a party is involved, no opinion on that dispute can be rendered unless we consent. When we claim an interest, although no dispute exists, we can, if we so desire, bring our great influence to bear against the rendering of such an opinion with the same legal standing as if we were a member of the Council or the Assembly of the League of Nations and, in the extremely unlikely event of our being unable to persuade the majority of the Council or the Assembly that our interest is real and that the request for the opinion should not proceed, we may withdraw from membership in the Court without any imputation of unfriendliness.
The general situation in the world has also changed since 1926 in a way which renders the World Court more vitally important than ever before. Since that date practically all the nations of the world have [Page 39] by the execution of the Pact of Paris renounced war as an instrument of national policy and have solemnly covenanted that
“the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.”
By this event not only has the need of developing judicial means instead of war to settle the inevitable controversies between nations become more pressing, but it has become even more important to establish and clarify the standards and rules of international conduct by which such controversies can be prevented or minimized. Never has there been a period in the world’s history when there was such an imperative need for the development of international law by an international court. Admitting freely all that must be accomplished towards this end by the quasi-legislative action of international conferences which may meet to discuss and agree upon international compacts and codes, it is nevertheless to the judicial action of a World Court, passing upon the individual controversies which arise between nations, that we must look not only for the application and interpretation of these compacts and codes but for the flexible and intelligent development in this way of all the subsidiary principles and detailed rules which will surely be found necessary in such application.
No people are more familiar with this need than the American people, or have greater reason for confidence in this judicial method of developing the law of conduct between separate states. They have seen their own Supreme Court wisely and flexibly work out the myriad difficult and changing problems which in the course of one hundred and forty years have grown out of the compact in which thirteen sovereign states in 1787 agreed to settle their relations by pacific means. And they have seen that Court settle these problems between states with no other power or sanction than the mandate of such a compact and the force of public opinion.
We cannot frankly face the limitations which inevitably inhere in the process of enacting laws or creating public compacts—so evident even in domestic legislation; so certain under the much more difficult conditions of international conferences—without appreciating that in this process of interpretation and application, the World Court will perforce take a vital part in the development of international law. The standards set up by international conferences will hardly be able safely to go beyond the statement of broad general principles; the development of details will necessarily grow out of the application of such principles by the Court. Here again to the American brought up under the common law, patiently and intelligently evolved by six hundred years of judicial decisions, this will be familiar as the method [Page 40] by which a system of law can be most safely, flexibly and intelligently produced.
In this work, protected as they are now protected, advisory opinions rendered on questions before they have ripened into bitter quarrels and wounded pride, can play a most useful part. Such opinions will be rendered with all the advantages of full argument from opposing interests, but before those interests have settled into dangerous international grievances.
Not only do the records of the World Court show how useful such opinions have already proved to be, during the eight years of the Court’s existence, in the interpretation of international treaty relations in Europe, but the rather similar form of obtaining declaratory judgments of courts upon domestic legislative questions is becoming a not unfamiliar practice in a number of the United States.
In the great future work of transforming the civilization of this world from a basis of war and force to one of peace founded upon justice, we today stand at the threshold. But it is already evident that in this work the World Court is destined to perform a most fruitful and important part. It is also clear that such an agency is more closely in line with the traditions and habit of thought of America, than of any other nation. And finally it is now possible for us to assist in the support and development of this judicial agent without in the slightest degree jeopardizing our traditional policy as a Government of not interfering or entangling ourselves in the political policies of foreign states or of relinquishing our traditional attitude as a government towards purely American questions with which we are concerned. Is there any reason why on such terms our Government should not join in the support, moral and financial, of such a Court, or why it should not lend its efforts towards the selection of judges who will act in this great work in accordance with the noble traditions of the American judiciary? Or why our Government’s great power-should not be placed in a position where it can influence for good or check against evil in the future development of the Court’s charter and work? I think not.
For all of the foregoing reasons, I have the honor to advise you that, in my opinion, the United States can now safely adhere to the Permanent Court of International Justice, and to that end, that the American Minister in Berne should be immediately authorized to attach the signature of the United States to both of the protocols above mentioned now open at Geneva for our signature. Inasmuch as the signature of the United States has never been attached to the original protocol of the World Court of 1920, I recommend that he be also authorized to sign that protocol as the formal necessary preliminary to the signature of the United States.
I am [etc.]