500.C114/765a: Telegram
The Secretary of State to the Consul at Geneva (Rand)
For Root. The President and I have consulted with Senators Swanson, Walsh (of Montana), and Borah on your proposed draft. [Page 8] Senators Walsh and Swanson agree to it and think that it adequately protects this Government under the last half of the fifth reservation. The President and I share their view. We cannot make sure in any way, of course, that the Senate would adopt the proposed draft; of this, you are aware.
After he had talked with me, Senator Borah had a conference last night with the President, after which the President wrote to me as follows:11
“I have now had an opportunity of discussing Mr. Root’s proposal with Senator Borah. My understanding is that Senator Borah is opposed to the Court undertaking any advisory opinions, and voted against our adherence to the Court for this reason. He also feels that Mr. Root’s plan satisfies the requirements of the 5th reservation. He seems to feel that those who believe we should adhere to the Court subject to the reservations, ought to be satisfied with Mr. Root’s plan.
Senator Borah still believes that the suggestion he made to Mr. Root that the statute should provide that no advisory opinions would be given in respect to non-members of the League would be a more effective method of action than the special program provided by Mr. Root.”
Senator Walsh agreed with the above views, but he wishes to make some suggestions with regard to the wording. I quote the Senator’s letter to me as follows:11
“Agreeably to my promise of this morning, I am sending you the following on the subject of our conference:
I approve of the draft sent by Senator Root, intended as a modification of Reservation V, and am prepared to urge acceptance of it by the Senate in lieu of its draft, but the essentials could, in my judgment, be expressed in fewer words. With great deference I offer the following:
Paragraphs 1 and 2 should be consolidated. They express no idea not implied in the Senate language, and no reason is apparent why it should be departed from.
I appreciate that three conditions are contemplated in paragraphs 1 and 2, a dispute to which the United States is a party, a dispute between two other parties involving a question in which it is interested, and a question concerning which the advice of the Court is sought, not involved in any pending dispute. All three conditions are covered by the Senate language.
I would cut out paragraphs 3 and 4. Doubtless the latter was inserted as a suggestion that the course therein indicated be pursued, but it may or may not be. The League bodies may now seek the views of our Government. The draft puts no obligation on them to do so in any case. Considering the circumstances of our adherence, should we adhere, it would be courtesy to do so in any case in which there would appear reason to believe we might be interested. I see [Page 9] no reason for suggesting in advance that they do the courteous thing. Moreover, I believe, not being a member of the League, we should avoid making any agreement as to what the League bodies may or may not do.
If the first part of Reservation V is to be preserved—and I understand no serious objection to it is entertained—there would seem to be no occasion for Paragraph 5. Rule 73 would, by the first part of Reservation V, become permanent. I would redraft what follows as here indicated:
In case the United States shall, within the time fixed for the hearing after notice, advise the Court in writing that the request touches a dispute or question in which it has or claims an interest, and that it has not consented to the submission of the question, all proceedings upon the question submitted shall be stayed for such time as the Court may direct to admit of an exchange of views between the United States and the proponents of the request.
If at the expiration of the period of such stay, the Court shall, after giving to the objection of the United States, indicated by its appearance as aforesaid, 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 the Court nevertheless proceeds, the objection of the United States not being recalled, such action shall be held to justify the exercise by the United States of the power of withdrawal provided for in Article seven hereof, without any imputation of unfriendliness on its part or any unwillingness to cooperate generally in the cause of peace and good-will.
I might observe that in the above proposed draft even Paragraphs 1 and 2 are omitted, there being what seems an incongruity between them and the concluding portion of the draft for which the substitute is offered. Advisory opinions under the conditions specified are forbidden by those paragraphs and yet, later, it is contemplated they will be given in which case the United States may exercise its right to withdraw.”
We have worked out what Senator Walsh’s letter apparently would provide for; that is, that the Court shall not, without the consent of the Government of the United States, render an advisory opinion touching any dispute to which this Government is a party, and the Court shall not render, without the consent of the Government of the United States, an advisory opinion touching any dispute to which this Government is not a party but in which it claims an interest, or touching any question not a dispute in which the United States claims an interest; and that whenever a request for an advisory opinion comes before the Court, the Registrar shall make notification of it to this Government, among the other States which are mentioned in the present article 73 of the Rules of the Court, stating a reasonable time limit fixed by the President of the Court within which a written statement by this Government on the request will be received.
The remainder of the Senator’s suggestions is comprised in the two paragraphs of his letter beginning with “In case the United States shall” and concluding with “peace and good will”.
I am forwarding his suggestions to you, without comment, for your information.