A Way Out of the Court Deadlock
IF one were collecting curbstone impressions as to the reason why the United States is still outside the Permanent Court of International Justice, the result would show wide variety. One group, anxious to fix the blame at home, cites as the heart of the difficulty that trouble-making fifth reservation concerning the right of the United States to prevent the giving of an advisory opinion. A second group, equally anxious to place the blame abroad, defends the entire reasonableness of the fifth and all the other reservations, laments the error made by the signatory states in ‘rejecting’ them, and points out that in view of this ‘rejection’ there is certainly nothing more to be done in the Court matter unless and until the signatory states come to their senses. At this point may crop forth dark hints that the real difficulty is that certain of the Great Powers (names are given!) ‘do not want us’ in the Court and have seized the opportunity to magnify unimportant differences in order to keep us out. A third group, too deeply puzzled by the whole matter to know where to lodge the blame, accords ready belief to the rumor that we are still outside the Court because juridical complications of the most solemn order have developed, differences far too deep for popular comprehension, but inevitable and altogether respectable.
Any one of the above is a poor description of the real obstacle. The solemn juridical difficulties, when closely scanned, take on the contours of quite familiar domestic political inconveniences. Whence it dawns on the careful observer that the dead stop in the Court matter comes about, so far as the United States is concerned, not because the differences are insoluble, but because we have not, for reasons entirely domestic, found it convenient to go on with the process of solution. The reservations themselves, whatever one thinks of them, are not the heart of the difficulty. This holds also for the second part of the fifth, which indeed is presented to the world as the causa belli, but which, if taken in the reasonable legal meaning which this article is written to present, would probably offer no difficulties whatever abroad. It is troublesome now because it is capable of bearing two meanings; and the real obstacle to our adherence to the Court is that we have not been able — or willing — to clear up the justifiable doubt as to which of these two meanings we mean it to bear. Obviously, since the meanings are directly opposed, it cannot bear both.
To the simple-minded it seems vastly simple for the President or the Department of State to say, at once and very clearly, that of course the fifth reservation is to be taken in the only reasonable legal meaning possible for it to have under the law and precedents of the United States. But from the wardpolitics point of view the Court has become more and more a ‘loaded’ subject since the Senate resolution providing for adherence to the Court was passed in January 1926. Followed a wave of reaction whereby the Court, distorted into a convenient symbol of ‘foreign entanglement,’ was washed through all the byways of domestic politics, and even, not many months ago, assigned the rôle of leading issue in a Chicago mayoralty campaign. Absurd, but there it is. Canny advisers of the Administration naturally cite the traditional wisdom of gently postponing loaded subjects in near-presidential years. The rest is silence. Our negotiations with the signatory states have reached a point where it is our turn to speak. But, against every tradition of international dealing, we have refrained from going on with the conversations that are to be considered a matter of course in arriving at agreement upon the Court treaty or any other treaty.
Our policy throughout, in the Court matter, has been not to negotiate but to legislate, not to hold conversations but to rest on ultimatums. But treaties cannot be legislated; they are the product of the most subtle and delicate processes of diplomacy, including the flexible exchange of views as to what is intended, what definitions are to be attached to this or that provision, and so forth. We proposed to adhere to the Court treaty with five reservations. We declined a request to explain just what meaning we intended some of these to have. The signatories, in doubt as to how much we meant to claim, accepted the reservations with reservations. In thus accepting them they hopefully proposed ‘such further exchange of views as the Government of the United States may think useful.’ That was many months ago. But up to the present we have not thought any further exchange of views useful. We choose to regard as a finality what they evidently considered as one step in diplomatic negotiations.
‘But surely,’ said an amazed European diplomat a few weeks ago, ‘the reply of the United States will be coming through soon. You proposed something to us and we replied, accepting in general and suggesting further discussion of points not clear. The President cannot just put our communication in his pocket!’
When on the same day, however, this diplomat’s hopes were quoted to an experienced representative of the State Department abroad, who knows well how capacious the pockets of that Department are, he said with a smile, ‘The doctor does n’t understand. The thing’s over. A good office job will be done in Washington upon the replies. A careful memorandum will point out how reply A differs from reply B and how C in turn differs from A and B, etc. And the whole will be filed. Voilà tout.'
The bewildered public, finding the Court a difficult subject at best, cannot stand the strain of analyzing further difficulties and more than half acquiesces when told that, the whole issue is ‘dead.’ Assured that we made a generous gesture toward international coöperation and that our overtures were ‘rejected,’ the people reason that perhaps we are well out of it. They begin to favor ‘leaving it to time.’ This is excellent stuff for Mr. Borah and the irreconcilables and also for those reconcilables who are ‘for’ the Court but not to the extent of allowing to it any disruptive force in home politics.
If the problem were to allocate blame, both the United States and the signatories would come in for a share. We contributed a first blunder in not troubling to find out whether the reservations as passed would be clear to and acceptable to the signatory states. When Mr. Hughes, in 1923, announced the original Harding-Hughes-Coolidge reservations, he did so apparently only after sounding out the countries in the Court to establish that they would be acceptable. If any sounding out had been done abroad as to the final form of the fifth reservation, the question as to which of two possible meanings was to be given it would at once have been raised and answered. But the second form of the reservations was the Senate’s, not the Secretary of State’s; and diplomatic soundings out have no part in the business of trying to legislate treaties. In a way, this whole Court situation illustrates the Senate’s tendency to obtain a share in the negotiation of treaties (an executive function) by dint of attaching reservations to its constitutional advice and consent to the ratification of treaties. Our second blunder later followed naturally from the first: we were not able — or willing — to tell the signatories exactly what the fifth reservation meant when they asked for reassurance concerning it. They invited us to send a delegate to their September Conference to explain it. Secretary Kellogg refused — altogether reasonably, for until our reservations were accepted we were not a signatory and had no status and no vote in a conference of signatories; and the Secretary of State had no authority to make an official paraphrase of a Senate reservation to a formal conference. But, while necessarily refusing this invitation, the Secretary of Slate could certainly have indicated that the United States would be willing to converse in the ordinary diplomatic ways as to the meaning of the fifth reservation, since there was doubt about it —doubt at home as well as abroad. He did not do so; and his letter still rankles in various foreign offices. If fifty nations state that they are in doubt as to what reservations mean, the entente cordiale is not improved by telling them that ’the reservations are clear and unequivocal.’
Not all the blunders have been ours. The signatory states, if they did not ‘blunder’ in their action at the September Conference, at least failed to seize an obvious opportunity to simplify the situation. The reply they made to the reservations was fair enough; but they might, more astutely, have made a reply that would have brought the negotiations forward, a reply that would have achieved both objects, of getting the United States into the Court and also safeguarding the functioning of Court and League. As it was, they did merely the latter. Genuinely puzzled as to how far we meant to go under the fifth reservation in claiming a right to prevent advisory opinions, and fearing the worst because of the interpretation given to this reservation in some of the Senate debates, — an interpretation that, might interfere with the constitutional functions of both the League and the Court, — the signatory states, after accepting outright the first, second, third, and first part of the fourth reservation, attached to their acceptance of the second part of the fourth and the fifth the condition that, if the situation produced by the acceptance did not work out well, it could, by a two-thirds vote, be withdrawn at any time. But a conditional acceptance of conditions is not a satisfactory basis for an international engagement, of the first importance to rest upon. ‘What the Conference needed above all else to do was to send a réponse simple; what we did send was a réponse embrouillée., So said recently, in informal talk, one of the keenest jurists at the Conference. He, and others there, had wanted the Conference to accept the fifth reservation outright, with the rest, attaching to the acceptance a statement of the sense in which they understood it.
We cannot, however, dwell too fondly upon the blunder made by the signatory states when we know that if, in any way whatever, they had been given assurance that our fifth reservation was to be taken only in the reasonable legal meaning set forth here in detail a little later, they would have made the réponse simple, a simple acceptance. The significant present factor is that very generally over there they now feel that a little genuine discussion would lead to agreement. ‘If the United States would let it be known in any way it sees fit that it attaches only a reasonable meaning to the fifth reservation, agreement could be reached in a few hours, if not a few minutes.’ So spoke an official of the French Foreign Office not many weeks ago. A member of the British Foreign Office, in slightly different words, said the same thing. They know that in the case of other treaties differences measurably greater have often been resolved by a simple exchange of views.
Is the second part of the fifth reservation all that stands in the way of agreement? Substantially, yes. It. is true that the September Conference attached the condition also to the second part of the fourth reservation, which provides that the statute of the Court is not to be amended without the consent of the United States. Since, however, the Conference finally decided that the consent of all the signatories is needed for amendment, as in the case of any treaty, their attaching the condition to acceptance of this reservation has met with a good deal of criticism abroad. It is one of the points that would probably be straightened out easily in the course of further negotiations.
Before going to the heart of the difficulty, the meaning of the second part of the fifth, a word is needed about the peculiar form the Conference adopted for putting the United States reservations into effect. Instead of amending the Court statute, they preferred to draft a special protocol between the United States on one side and all the other signatories on the other. Why? If statutory amendments were necessary in order to put the United States reservations into effect, why did not the signatories accept the reservations first, and then, in a later conference, with the United States present as a member, amend the statute? Leading delegates at the Conference urged such a procedure, and, as Mr. Kellogg’s letter shows, it is the procedure suggested by the United States. There are reports that the Court itself favored this method.
The thing that seems to have determined the Conference to adopt the method of the special protocol rather than to amend the statute was the first part of the fourth reservation, providing that the United States might withdraw from the Court at any time. If the United States were thus poised for flight at: the very moment of entrance, the Conference doubted the wisdom of amending the statute for the special purpose of making the United States reservations operable. If we withdrew, the signatories would find themselves with a statute altered in ways no longer applicable. A special protocol would have the same force as the statute, but would be detachable — if and when the United States detached itself from the Court.
This is another instance in which the American spirit of reservation, the careful provision for escape, may have induced a counter spirit of caution in the signatory states. The signatories decided that whatever statutory changes they made for our special purposes should cease to exist if we ceased to exist in the Court.
Now as to the main issue, the second part of the revised fifth reservation: —
Nor shall it [the Court], 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.
There is in the United States a good deal of genuine (as well as a good deal of manufactured) apprehension as to the advisory jurisdiction of the Court. It is shared by some jurists abroad. Much of it, however, has been broken down during the past few years by the fact that the thirteen advisory opinions thus far given have been obviously useful, and especially by the Court’s method of treating advisory opinions — that is, with all the investigations,all the formality, all the pleadings and counter pleadings, all the documentation, and all the publicity that characterize the Court’s procedure in giving an actual judgment.
Since, however, the advisory opinions of the Court are in a way only a League affair, — the Assembly and the Council being the only agents that can request them, though every nation is subject to the moral effect of them, — the signatory states had no objection to the United States, as a nonmember of the League, making some reservations on this score. They did not object at all to the first form of the fifth reservation, in the old Harding-HughesCoolidge terms, in which the United States merely observed that it. ‘would not be bound’ by an advisory opinion upon any question it had not voluntarily submitted. The second form of the fifth is very different in wording from the first. But the tragi-comic aspect of the present situation is that the second form — in law and in reason — means little if anything more than the first.
What does it mean? The Court issue in the United States is in the near future bound to take shape as a choice between the two sharply contrasted interpretations of it.
By the first, which is the reasonable legal interpretation, the second part of the fifth reservation authorizes the United States to oppose the giving of an advisory opinion by the Court in cases in which the United States is a party, and also in cases in which the United States, while not a party, has a direct material or legal interest, the Court being the judge as to the existence of the interest.
By the second interpretation, sponsored by a few influential members of the Senate, the United States would be entitled, under this reservation, to prevent the Court from giving an advisory opinion in any case whatever by the mere unsupported assert ion of a claim of interest, and this assertion would be final. In face of it, the Court would have no power to give the opinion even if both the nations that were parties to the dispute desired it.
The question as to the right of the United States to prevent the giving of an advisory opinion in cases in which it is a party can be removed from the discussion at once. That right is conceded by the signatory states, which at the September Conference freely admitted that in cases in which the United States was a party the Court would not render an advisory opinion if the United States objected. The Final Act of the Conference says: —
As regards disputes to which the United States is a party, it seems sufficient to refer to the jurisprudence of the Court. . . . This jurisprudence, as formulated in Advisory Opinion No. 5 [Eastern Carelia], given on July 23, 1923, seems to meet the desire of the United States.
In the Eastern Carelia case, the Council of the League requested from the Court an advisory opinion in the matter of a dispute between Finland, a member of the League of Nations, and Russia, a nonmember of the League. Russia objected to the opinion’s being given, and refused to coöperate by aiding in the investigations and hearings which the Court conducts in connection with the giving of any advisory opinion. The Court, thereupon, refused to give the opinion. It is true that four of the judges dissented, believing that the Court would be justified in giving the opinion. It is also true that the Council of the League was not pleased with the Court’s refusal. But the fact remains that in the Eastern Carelia case a clear majority of the Court took the line that the cooperation and consent of both parties are an essential condition of the Court’s giving an advisory opinion.
This point of view is of immense importance, since it shows the disposition of the Court to treat advisory opinions as it treats judgments — that is, to consider it as an essential principle that an advisory opinion will not be given by the Court if one of the parties objects. That Russia’s being a nonmember of the League was the determining consideration cannot be assumed; the ground the Court gave for its refusal was the noncoöperation of Russia in furnishing the facts necessary to the Court for arriving at an advisory opinion.
The September Conference was prepared to register its approval of permanently confirming the principle followed by the Court in the Eastern Carelia case, at least, with regard to the United States, and thus to accept the fifth reservation so far as it concerned cases in which the United States was an actual party. Nor did the Conference reject the idea that the United States might be entitled to prevent the giving of an advisory opinion in some cases in which it was not an actual party. It is not hard to think of cases in which, while the United States is not a party, its interests—for instance, its commercial rights or the lives, property, or welfare of its citizens in foreign lands — would be adversely affected by an opinion given in a dispute between two other nations, or upon a point of law in a question not a dispute between nations, affected in a tangible and material way easily recognizable by a court. There should be no doubt that the United States ought to have the right to interpose a claim of interest in such cases.
In the first reasonable legal interpretation stated above, the fifth reservation, therefore, is not only justifiable but necessary. To illustrate: The United States might have refused to submit a dispute to the Court for an actual judgment. In thus refusing, it would be acting in accordance with a fundamental provision of the Court statute which requires that both parties consent to the submission of a case to the Court. But the Council of the League, of which the United States is not a member and the deliberations of which the United States does not influence, might, in an effort to settle a disturbance that threatened, refer the same dispute to the Court for an advisory opinion. The moral effect of an advisory opinion and of a judgment are much the same. Against such an event, therefore, the United States justifiably claims the right to object.
Such a right is assured to it by the fifth reservation, in the first sense stated above, with reference to an advisory opinion upon any question in which the United States is a party or has a real interest. Taken in that meaning, the fifth reservation is entirely justified, and the United States ought to be satisfied with nothing less than unconditional acceptance of it. If the United States will say that this of course is what the fifth reservation means, and will continue normal diplomatic negotiations, the way out of the present deadlock becomes as simple as the voice of reason itself. But the voice of reason has a way of crying long in the political wilderness.
In the second meaning, the fifth reservation is highly objectionable. To illustrate: The Council of the League might ask the Court for an advisory opinion with reference to a point in dispute between France and Japan, or Japan and Brazil, bearing upon the treatment of the yellow races. The parties might be willing or even anxious to have the opinion given, the Court might be entirely prepared to consider the question, yet the United States — if it had power to veto on an unsupported claim of interest — could prevent the rendering of the opinion simply in order to avoid having available any jurisprudence that could ever furnish suggestive analogies.
Small wonder that the signatories were troubled about how far 1 he United States would go in ‘claiming’ an interest in cases in which it was not a party. Who would be the judge as to whether the interest claimed was a valid one? The far-flung activities of the United States, the ramification of its interests in every country in the world, make it conceivable that we might feel ourselves to be ‘interested,’in the popular sense of the word, in almost any subject upon which the Court might be asked to give an advisory opinion — except perhaps a European boundary line. By holding the power to prevent an advisory opinion on such aground, the United States would retain a constant and arbitrary right to frustrate the pacific activities of the Council, to hamstring the functioning of the Court, and, in final effect, to obstruct the clarification and development of international law.
The question as to who would decide whether or not the United States really had an interest came up during the Senate debates, but did not constitute a critical point in the discussion. At the time of the debates, for reasons outlined below, decision on this point did not seem essential. It is almost certain that most of the Senators had not deeply considered it and that they have not yet done so. Some of the anti-Court Senators made the point that the Court would be the judge, offering it as one more evidence of the foreign domination that would ensue if we adhered to the Court.
This reasoning came from the same group that opposed the Court because ‘ten out of the eleven judges are foreigners,’ and that pointed out the unAmericanism of adhering to a Court in which all the judges but one (Judge Moore) had unpronounceable names — at which point a pro-Court Senator raised a laugh by asking the speaker if he did not think he could pronounce the name of the English judge, Lord Finlay. A considerable number of Senators who would have been happy to adhere to the Court with no reservations at all had no great amount of interest in that stiffening up of the fifth reservation which the revised form of it was intended to achieve. The idea that a court of justice should be the judge of the validity of the claims placed before it contained no terrors for them. But unfortunately, because of a mistaken assumption later disproved, several Senators of influence sponsored an interpretation which would make the United States and not the Court the judge as to whether the United States had an interest. Senator Swanson, during the debates, explicitly made the point that any advisory opinion which the United States (whether a party or not in the question) did not want would not be given: —
All the United States would have to do, with the reservation adopted, would be to notify the Court that they claimed an interest and objected to an advisory opinion.
As another Senatorial protagonist of the Court cause put it recently: —
The reservation clearly means, and that was the purpose in framing it, that it is sufficient for the United States to say, ' We claim an interest in that question and object to its being submitted.’ Doing so, the Court would have no jurisdiction to render an advisory opinion.
There is, however, no juridical backing for an interpretation of the fifth reservation which would make the United States in every case the judge as to whether or not our interest is sufficient to restrain the Court from giving an advisory opinion in a case in which the parties to the dispute desire it. The signatory states will never accept such an interpretation. But they will have no fear of the second part of the fifth reservation — and no objection to accepting it outright — if they have the assurance that the phrase ‘has or claims an interest’ means such an interest as a court would recognize, and that, following the only pertinent, judicial precedent, the Court itself would be the judge as to whether or not the interest exists.
For this latter position there is ample juridical support. ‘Has or claims an interest’ is an accepted phrase in the laws and legal practice of the United States, with a meaning long established by the judicial construction of United States courts. It means a material or legal interest, and the court to which the claim is made is judge of whether or not the claim is well founded.
A diligent search of the law and the statutes would probably result in finding the phrase in many places. No assumption is made here that all its origins have been unearthed; but when a few weeks ago Dean Pound of the Harvard Law School (and of invincible memory) was asked if he could put his finger on the phrase for the writer, he pointed out where the phrase occurs in the old New York State Code of Civil Procedure, Section 447: —
Any person may be made a defendant who has or claims an interest in the controversy . . .
It may be in point to recall that Mr. John Bassett Moore, to whom the paternity of the revised form of the fifth reservation is very generally ascribed both here and abroad, is familiar with New York practice. Dean Pound also found the phrase in Rule 37 of the Federal Equity Rules: —
. . . any person may be made a defendant who has or claims an interest . . .
While these rules were not adopted in their present form until 1912, this Rule 37 was then declared to be ‘a new rule, merely declarative of settled law.’
The legal definitions of an ‘interest ’ go back very far. Rule 37 and the Federal Equity Rules in general have their foundation in the practice of the Chancery Courts of Great Britain, on which the equity practice of both the Federal and state courts of the United States is based. The cases in point, both old and recent, show conclusively that the interest referred to must be a material interest, such as would allow the person claiming an interest to bring a suit himself or such as might make him liable to be sued. It must be an interest in the object of the suit, and not merely in the subject matter or in the principle of law involved.
Judge Mayer, of the United States District Court, in denying the application of the City of New york for leave to intervene as a party defendant (in Consolidated Gas Co. v. Newton, 256 Fed. Rep. 238, affirmed C. C. A. 260 Fed. Rep. 1022, 253 U. S. 219), on the ground that the City of New York had no interest in the case, said: —
Referring now to the last paragraph of Rule 37, it is plain that ‘interest.’ means a legal interest. Indeed the word ‘interest’ is used four times in Rule 37 and must be construed eiusdem generis. In every instance, it is manifest that the interest must be a ‘legal interest’ as those words are understood in the law. There never can be a legal interest in a suit in equity unless, as the result of the litigation, the decree affects the person or corporation claiming the interest.
When a party who ‘claims an interest’ under Rule 37 applies to the court for leave to intervene in the suit, it is in the discretion of the court to grant or deny the application. The court to which the claim of interest is made is the judge of the validity of the claim. The United States Supreme Court has consistently upheld the power of the district, courts and the circuit courts of appeal to deal with this question.
It can hardly be claimed that a phrase with an established legal meaning can be incorporated into a legislative act (which the fifth reservation is) and then be held to mean not only something quite different from, but even something violently opposed to, the meaning it has always been given in the national courts. It is an established rule of statutory construction that, where words which have acquired a technical meaning by frequent judicial interpretation are used in a statute, they are presumed to be used with that meaning. It follows that ‘has or claims an interest.’ means in the fifth reservation exactly what it means in the practice of the courts of the United States — that is, a direct and not a consequential interest. It means a legal or material interest in the object of the specific suit, and not an interest in its subject matter or in the principle involved. It means such an interest that the claimant, the United States, would be directly, materially (and not merely sentimentally) affected by the decree. And the court to which the claim is made, in this case the Permanent Court of International Justice, is the judge of the validity of the claim.
But, it may be asked, what after all does it matter what ‘has or claims an interest’ means juridically if it means something else ‘ Senatorially’? What have reason and precedents to do with practical politics?
The Senate debates and points of view cannot change established meanings. It is an established rule of statutory construction that, while the legislative intent is controlling as to the meaning of an act, that intent must be gathered from the act itself; and that debates during the consideration of the bill may not be taken into account as an aid in ascertaining the purpose and intent of the legislative body. Mr. Justice Story once said on this point: —
Courts of justice are not at liberty to look at considerations of this sort. We are bound to interpret the act as we find it, and to make such an interpretation as its language and its apparent objects require. We must take it to be true that the legislature intend precisely what they say, and to the extent which the provisions of the act require for the purpose of securing their just opinion and effect. Any other course would deliver over the Court to interminable doubts and difficulties; and we should be compelled to guess what was the law from the loose commentaries of different debates, instead of the precise enactments of the statute. (Mitchell v. Great Works Milling, etc., Co., 17 Fed. Cas. No. 9962)
Two questions must still be lingering in the alert reader’s mind: If the phrase ’has or claims an interest’ has a meaning established by long judicial construction; if it clearly refers to material and relevant interest, such an interest as a court would recognize, the court itself being the judge; if the civilized world could see only this meaning in it, and if the rights if secures are all the United States ought, in reason, to wish to claim — if these things are true, why, first, did some of the best-informed members of the Senate embrace another impossible meaning? Why, secondly, did the phrase give such difficulty to the September Conference composed so largely of jurists, legal advisers of the various foreign offices, men used to taking words in their accepted construction?
Those Senators (friends of adherence to the Court) who believed the fifth reservation should and did ensure to the United States the right to prevent any advisory opinion whatever, merely by an unsupported claim of interest, believed as they did because of their mistaken assumption that a unanimous vote is needed in the League Council for requesting advisory opinions, that therefore every member of the Council already has a right of veto, and that the fifth reservation would merely secure to the United States an equal right.
Unfortunately for the soundness of this position, it is not at all certain that a unanimous vote is needed in the Council for such requests. But, more fundamentally, why is our adherence to the Court affected by whether a majority or a unanimous vote is needed? Our fifth reservation is not concerned with the Council’s asking for advisory opinions. It is concerned with the Court’s giving them, The fifth reservation is addressed not to the League but to the Court.
The United States is not a member of the League, the only agency authorized to request advisory opinions, which it desires in order to aid it in settling threatening disputes. The United States, therefore, ought not to, and cannot, inject itself into the Council’s pacific functions. Why should it try to get itself an equal vote, or any vote at all, in an operation in which it is not concerned and for which, as a nonmember of the League, it has no responsibility whatever? What the United States wants, in the matter of advisory opinions, is merely the right to prevent embarrassment to its interests through the moral effect of advisory opinions. As a member of the Court, therefore, the United States reserves the right to object, before the Court, to being involved against its desire in an advisory opinion upon a question in which it has a material interest,
The line of reasoning that led the Senatorial ’equality ’ seekers astray centred around this reading of the fifth reservation from a League instead of from a Court angle — this attempt to make the fifth reservation give the United States ‘equality’ with League members, when as a matter of fact what the United States was asking was the necessarily special status of a nonmember of the League vis-à-vis the rendering (not the requesting) of advisory opinions.
But why did not the Conference of signatory states, feeling as they did (and saying as they then said) that this purpose of the fifth reservation to secure ‘equality’ rested upon a wrong assumption, simply accept the fifth reservation outright, unconditionally, on the ground that the United States meant of course to reserve a right of veto only in cases in which it was a party or had a material interest, the Court being the judge?
It is a great pity that they did not. That was their opportunity, and they let it escape them.
One of the representatives at the Conference, M. Negulesco of Rumania, who is also a deputy judge of the Court, very clearly tried to point out to the Conference that of course the Court would be the judge of the validity of any ‘interest’ claimed by the United States under the fifth reservation. He said: —
It must be admitted that the wording of the fifth reservation might give the impression that the United States had wished to reserve the right to prevent the Court from giving an opinion whenever it was, or declared itself to be, interested.
But such an interpretation could not be accepted, for the words ‘ if the Court so decide’ were implicit in the text. It seemed difficult to believe that at such an historical moment in the annals of the Court of International Justice one of the greatest Powers of the world, which was prompted by its love of peace to adhere to the Court, should be seeking to paralyze the authority of the Court and to prevent it from functioning in the future.
The Conference could accept the fifth reservation if it were interpreted to mean that the United States . . . wished the Conference to confirm in its case, in a permanent form, the rule which the Court had once exercised in the affair of Eastern Carelia.
But this reasoning of M. Negulesco’s did not visibly move the mind of the Conference.
There may have been more than one reason for this. Some of the delegates to the Conference were so obsessed with the League as to inhibit their dealing understandingly with the Court, which they seemed to see almost exclusively in its relation to the League, as the source of those advisory opinions which the League has found so useful in averting critical disputes; they had real trouble in envisaging the peculiar status, vis-àvis the advisory jurisdiction of the Court, of a state not a member of the League.
But certainly the chief reason why the Conference did not accept the fifth reservation in the secure belief that the phrase ‘ has or claims an interest ’ refers always and as a matter of course to such an interest as a court would recognize was their preoccupation with what certain Senators thought about it. Foreign statesmen have generally a mixed state of awe and puzzlement as to the Senate, which they seem to regard as something we keep on hand to neutralize the acts of Presidents if and when such acts become inconvenient. It was pointed out in the Conference that the Senate ‘claimed very important powers with reference to all foreign affairs.’ The debates and conclusions of the delegates were guided, naturally enough, not by what their juridical sense told them the fifth reservation meant, but rather by what certain United States Senators, who happened also to be known and highly regarded by them, had so recently said it meant. In that meaning, they found simple acceptance impossible.
They quickly pointed out, of course, the wrong assumption upon which the demand for ‘equality’ rested: —
The fifth reservation appears to rest upon the presumption that the adoption of a request for an advisory opinion by the Council or Assembly requires a unanimous vote. No such presumption, however, has so far been established. It is therefore impossible to say with certainty whether in some cases, or possilbly in all cases, a decision by a majority is not sufficient.
If — as the Conference was inclined to think — the vote of a majority is sufficient, the United States could not be guaranteed a right of veto on the assumption that every Council member already has the same. Yet, in order to satisfy the claim for ‘equality,’ the Conference made the following well-meaning but quite meaningless reply to the fifth reservation: —
. . . in any case where a State represented on the Council or in the Assembly would possess the right of preventing, by opposition in either of these bodies, the adoption of a proposal to request an advisory opinion from the Court, the United States shall enjoy an equivalent right.
The ‘equivalent’ of an undefined right takes us pretty well into the field of the fourth dimension. It is not the type of possession calculated to satisfy the United States.
There is a good deal of support right now in this country (and very little abroad!) for the idea that the best way out of the present deadlock is not at all for us to tell what the fifth reservation really means, but to dump the problem on the doorstep of the League at Geneva, and persuade the Council that it ought to decide instanter that a unanimous vote is necessary for requesting an advisory opinion. With this established, the signatories, it is argued, could afford to accept our fifth reservation unconditionally, since then — no matter which of the two meanings is given it — it would secure us no privilege not already held by every member of the Council.
This proposal is politically attractive here because it puts on the other side the responsibility for initiating the next move. Nobody could reasonably object if Geneva should be moved to regularize the present difficult situation by making it now what some of the Senate debates mistakenly assumed it to be. This way out of the deadlock would be as convenient as the deus ex machina — and would have exactly as much logic.
Nor is it at all likely to come to pass. It will be remembered that at the Conference of signatory states a proposal was made to get an advisory opinion from the Court interpreting Article V of the League Covenant to show whether unanimity was or was not necessary, with the idea that if the Conference were clear on this point they could know whether or not they could safely accept the fifth reservation. But the proposal was later discarded, even by some of those who proposed it, on these grounds: first, that it would be inadvisable to ask an advisory opinion on a moot question: secondly, that rigid decisions in the life of young institutions are to be deplored; and thirdly, that an advisory opinion would be inconclusive anyway because of the provision in Article XV of the Covenant restricting the vote of interested parties in disputes laid before the Council for settlement (of very doubtful application here), and also because the Court was very likely to say that a request might be sometimes a matter of procedure and sometimes a matter of substance, in the event of which possible reply the problem of the United States and the Court would certainly not be clarified.
But the real reasons why the question will not be settled over there are, first, the very excellent one that they don’t want to settle it now, for tactical reasons of their own — they see advantage in uncertainty. ‘Even a suggestion of an advisory opinion,’ said the Secretary for Foreign Affairs of one of the Great Powers recently in informal talk, ‘is often enough to bring a recalcitrant state into line and nip a dispute in the bud.’ The ‘suggestion’ would have less weight if the recalcitrant state knew positively that only one vote could always prevent a request for an advisory opinion. We may or may not be sympathetic with this reasoning, but the fact is, we have nothing to do with it. The second reason why an early settlement of the question is most unlikely is that there is too great a difference of opinion among leading foreign statesmen as to whether a request for an advisory opinion is a matter of substance, requiring a unanimous vote, or a matter of procedure, requiring merely a majority vote, or sometimes one and sometimes the other.
To illustrate: Dr. van Eysinga, President of the September Conference, told the writer not many weeks ago that he considers that a request for an advisory opinion is a matter of substance, requiring unanimity; he did not, however, anticipate or favor early determination of the question. M. Rolin, who, as Chef du Cabinet of the Ministry of Foreign Affairs of Belgium, represented his country at the September Conference, said recently that he feels that a request might be sometimes a matter of substance, requiring a unanimous vote, and sometimes merely a matter of procedure, requiring only a majority vote, the latter in the case of opinions on questions as to which the Court’s jurisdiction had been previously established, as by treaty. Sir Cecil Hurst, Legal Adviser of the British Foreign Office, thinks the request might be sometimes one and sometimes the other. With the point of view that it may be sometimes one and sometimes the other, M. Fromageot, Jurisconsult of the French Foreign Office, takes issue. He thinks a request for an advisory opinion must be always a matter of procedure or always a matter of substance. He believes personally that it is a matter of procedure, requiring only a majority, though he stresses the political desirability of having unanimity. A much more extended survey than can be summarized here has been made as to points of view entertained on this matter. Its pertinence lies simply in the clear indication it gives that, if the United States is depending on avoiding saying what the fifth reservation means by getting Geneva to take action that would enable the signatories to accept it whatever it means, the hope is vain.
It is most unfortunate that the Court discussion in the United States ever took this fallacious trend of trying to get for the United States ‘equality’ in the Council discussions in which it has no concern and no rightful place. This aim at equality quite overlooks the fact that the power of a nation on the Council to prevent a request for an advisory opinion is not to be measured in terms of votes. In other words, if any great nation on the Council, let us say Great Britain, did not wish to have a request for an advisory opinion made, is it likely that the matter would ever even come to a vote? Obviously not. Any great nation exercises its preventive power, in such a case, not by its vote, but by its political prestige, which discourages the issue long before it reaches the stage of being voted upon.
There is no juridical formula that will achieve political equality. There is no reservation which will give the United States, a nonmember of the League, the influence in League debates possessed by leading League members.
But the main point is not that there is no such formula. The main point is that the United States does not want such a formula, and does not want its fifth reservation to attempt to achieve it. The adherence of the United States to the Court is not and should not be dependent upon a decision to be made by the League, or upon any necessity to interpret the constitutional law of the League. To make the fifth reservation a means of securing for the United States a power of veto for the United States in the League Council debates — a veto which the sponsors of this interpretation maintain (obviously wrongly) is held by every Council member — is to inject the United States into the League of Nations. It is a direct violation of the first reservation, by which the United States declares that, its adherence to the Court shall not involve any legal relation to the League or the assumption of any obligations under the Covenant of the Treaty of Versailles. The real purpose of the fifth reservation is in a sense to expand the first reservation. The fifth, like the first, aims, not to merge us with the League members in requesting advisory opinions, or to involve us in League discussions as to whether or not these requests ought to be made, but rather to give the United States, as a nonmember of the League, the power before the Court to protect itself from the adverse effect of an advisory opinion which, while not involving the United States as a direct party, might seriously affect United States interests.
The fifth reservation has no other meaning.
Why can we not say so?
Is it beneath the dignity of the United States to say that the fifth reservation is to be taken in its accepted and traditional meaning, long sustained by the courts of the United States? For the President or the State Department to let this be known, directly or indirectly, in one of the dozens of ways possible to diplomacy, is the way out of the deadlock.
It is the way of reason. It follows also the line of least resistance. No resubmission of the fifth reservation to the Senate for modification or rephrasing is involved. There would be no recession, no ‘concession.’ Unless, by the curious system of suspended diplomacy we have followed in the matter of the Court, we regard it as a sign of weak compromise to say anything at all. A few weeks ago a certain Senator, when asked whether he should like to see the Court negotiations continued, gave as the apposite reply that he was not in favor of modifying anything! Any departure from the ultimatum system evidently seemed to him a ‘modification ’ — and dangerous.
The signatory states will not be slow to follow any indication that we stand on the reasonable meaning of the fifth reservation. Reassured on this point, there are many significant indications that they might then accord unconditional acceptance to the reservations as a whole. In that case the President would be free to authorize the signature of the United States to the protocol of signature of the Court. If the signatory states insist upon retaining the special protocol they drew up in order to define the special agreement necessitated by the reservations, it would, of course, have to be submitted to the Senate for the usual ratification by two thirds of its members. But, reassured as to the meaning of the fifth reservation, and accepting it and the others, therefore, unconditionally, the signatory states would perhaps retain little interest in the special protocol. They might withdraw it, thus making it possible for the adherence of the United States to the Court to be consummated at once. Any adjustments, amendments, or special agreements necessary to make the United States reservations effective would then be left to a later conference of signatory states, with the United States, then a member, present and coöperating in formulating the proposed arrangements. That is as it should be. That is the proposal suggested by several delegates of the September Conference. It is the procedure suggested bv Mr. Kellogg’s letter declining the invitation to the Conference: —
This Government does not consider that any new agreement is necessary to give effect to the conditions and reservations on which the United States is prepared to adhere to the Permanent Court. The acceptance of the reservations by all the nations signatory to the statute of the Permanent Court constitutes such an agreement. If any machinery is necessary to give the United States an opportunity to participate through representatives for the election of judges, this should naturally be considered after the reservations have been adopted and the United States has become a party to the statute of the Permanent Court.
One of the important points to be settled at this later conference with the United States present would be, of course, the procedure by which the United States would make it known to the Court that it claims an interest. At the September Conference it was pointed out that all the steps looking toward the Court’s rendering of an advisory opinion might have been taken and yet the Court might be delayed in so doing by not knowing whether or not the United States claimed an interest in the case. Who, they asked, would decide whether or not the United States considered itself interested and who would interpose the claim? The President? The Secretary of State? The American Ambassador at The Hague? The American Consul at Berne? Would the United States Senate require to be consulted as to whether or not the United States claimed an interest in the given case? If so, and if the request for the advisory opinion was made at a time when the United States Senate was not in session, let us say in June 1928, would the Court have to defer action on the request for an advisory opinion until December 1928? If the Council’s whole point in asking for the opinion was to settle peaceably a critical dispute, there would be great disadvantage in not knowing when and how the United States would present its claim of interest, or its statement that it claimed an interest, to the Court. But with the real difficulty out of the way, and the fact established that it is the Court and not the Council of the League to which the United States would take its claim of interest, this other difficulty becomes much less important. It would certainly be resolvable in conference.
Here and there a quiet voice is raised asking whether it really is of vast importance that the United States adhere to the Court. Is the Court, perhaps, rather a ’cause’ than an imperative need, rather a fixed idea of the ‘propagandists’ than a necessary step in the development of the relations of the United States with other nations? It is pointed out that the United States is even now free to take a case to the Court. Should we be likely to use it more after we had adhered than we do now — recalling that for the submission of any question on the part of the United States specific action by the Senate is necessary?
It is very possible to overstate the immediate practical effect of our adherence to the Court. The main necessity for the United States to adhere is not ‘practical’ — it is that the United States needs to give its formal endorsement to the principle of attempting the settlement of disputes by the application of the principles of international law. Just how much we should resort to the Court is not immediately in point. But there are clear indications that we should inevitably come to use it more and more. For some classes of questions the arbitral process, with its inexactitudes and necessary compromises, recommends itself less to the American temper than the judicial process. And there are practical factors. An official with long experience in our State Department (and rather a stern critic, in many respects, of the present Permanent Court of International Justice) said recently that the importance of adherence to the Court, in his mind, lay a good deal in the fact that it is becoming increasingly difficult for the United States to arbitrate. It is hard to get the third arbitrator; as he put it, ‘Nobody wants to buck the Colossus.’
The nations in the Court do more and more trust it and depend upon it. Its record for the five years of its existence is a record of developing strength. All the nations that were in the war are now in the Court, except Russia, Turkey, Honduras, Nicaragua, and the United States. At the time this article is written ten nations arc before the Court. Germany had been before the Court before she actually signed the protocol. Poland and Germany have been before the Court four times. Some of the post-war questions dealt with by the Court in its seven judgments and thirteen advisory opinions have been thorny, notably those connected with Poland. The Court’s manner of handling these has deeply stimulated public confidence and hope of its greater future. ‘Cela grandira!’ an official of the German Foreign Office said of it a few weeks ago. He saw the Court, as the great nations came more and more to depend upon it, gaining over arbitration, replacing the often unsatisfactory processes of compromise, coming to be more and more the source par excellence of satisfactory settlement.
A few years ago we evidently looked in that same direction. In 1923 and 1924, when Mr. Hughes was renewing certain of our arbitration treaties, he included in the diplomatic note attached to the treaties the hopeful prophecy suggesting that, as soon as the United States adhered to the Court, the arbitration treaties might be modified to provide for reference of the disputes mentioned in them to the Permanent Court of Justice. In the course of time — and not a very long time — our negotiation of treaties of all kinds with other countries is bound to be affected by the fact that the Court appears more and more frequently in inter-European treaties, in which it is used either as an alternate, and very important, method of pacific settlement, or, very frequently, as a court of last resort. The Locarno treaties lean heavily on the Court. If there are to be any ‘American Locarnos’ they surely cannot ignore, or offer as a merely incidental alternative, what the European nations are coming to consider the most promising of all methods of pacific settlement — that is, judicial decision.
The Court is empowered to decide an infinite variety of questions coming up under various peace treaties and under the mandates. It has similar functions as the tribunal to decide disputes as to the interpretation and application of the provisions of the treaties in such engagements as the Geneva conventions for the international régime of maritime ports and of railways, the convention for the simplification of customs formalities, the air conventions between Denmark and Norway and between Sweden and Norway, the Barcelona Convention on freedom of transit, and so forth. It would be a curious circumstance if in the course of time the United States should find itself the only great nation outside a network of important treaties that look to the Court and use continually as a court of last resort an agency that had never been formally recognized by the United States and against which, indeed, we had raised reservations in themselves sufficiently just but so whimsically interpreted at home as to make their acceptance impossible.