Washington’s Missing China Strategy
To Counter Beijing, the Biden Administration Needs to Decide What It Wants
THE recent failure, for the time being, of the effort to revise the Statute of the Permanent Court of International Justice seems to have produced some confusion of thought at Geneva as well as in America. Apparently it is not clear to some people why the revision was undertaken, or what it would have accomplished, or why it has failed to become effective; and it does not seem to be understood that the failure has little or no effect on the proposed acceptance of the Court's Statute by the United States.
Though the work of the Court has from the beginning produced very general satisfaction, it is only natural that there should have been some criticism. The psychology of the defeated litigant is not limited to individuals, and the procedure followed by the Court has features that are strange to peoples in various parts of the world. In each country there is some tendency to criticize those features which do not accord with the national practice; dissenting opinions, for example, though a familiar practice in the United States, are anathema to lawyers in some other countries. But in spite of this tendency, there was no general criticism of the Court in its earlier years which would have indicated the existence of glaring defects. It is well known, however, that difficulty was at times encountered in getting a quorum for a meeting of the Court -- some of the judges were advanced in age, some lived at great distances from The Hague, some were busily engaged in other affairs. It cannot be said that any grave delays resulted, but attention was particularly directed to this difficulty when the Court met for its fifteenth session, on November 13, 1928, to consider the Serbian loans case; only six of the ten living judges and three deputy-judges were present, making a bare quorum of nine; and when one of the deputy-judges fell ill, a quorum was lacking and the session had to be closed without any disposition of the business before the Court.
But even before this difficulty appeared, various governments began to give thought to the fact that a second general election of the judges was imminent, and at the Ninth Assembly of the League of Nations in 1928 a resolution was adopted calling for a study of the provisions of the Statute "with a view to the introduction of any amendments which experience may show to be necessary." The original draft of this resolution was offered in the names of the delegations of twenty members of the League, but the initiative had been taken by the French delegation. The records of the Assembly contain little indication of the motives inspiring this initiative, but some misgivings had been current in France since the Court's judgment in the Lotus case between France and Turkey in 1927, given by an evenly divided court of twelve judges upon the deciding vote of the President. When in March 1929 a special Committee of Jurists met to consider the question of possible amendments, it had no specific proposals before it, and the French jurist present could only suggest that the Statute be studied to see whether any amendments were desirable. Two members of the Court itself, attending the meeting, were careful that their participation should not be taken to indicate any opinion that a revision was necessary.
On the whole, then, there apparently was no impelling reason for undertaking to amend the Statute, and it might have been better to postpone the attempt until more experience had accumulated. A popular supposition in America that the revision was an indirect way of dealing with the question then pending as to the basis for the adhesion of the United States, has no justification in fact. It was a fortunate result that this Committee of Jurists was able to draft a new Protocol for American adhesion, but this was entirely an afterthought, due to events occurring after action had been taken by the Assembly in 1928.
After the Committee of Jurists had made their report, a conference of the signatories of the original Court Protocol of 1920 was held at Geneva, and a separate Protocol for revision was opened for signature on September 14, 1929. This would have effected amendments to twenty of the sixty-four articles of the Court Statute, and would have added four new articles dealing with advisory opinions. The amendments are of varying importance; some are only the consequence of others, some are designed to produce greater correspondence between the French and English texts, some deal with matters of no great moment. The significant amendments would have effected the following changes: 1, an arrangement for certain states not members of the League to participate in the election of judges; 2, an increase in the number of judges from eleven to fifteen and the elimination of the deputy-judges; 3, a procedure for resignation of the judges; 4, a requirement that judges devote all their time to the work of the Court without engaging in any other occupation of a professional nature; 5, a provision that the Court be in permanent session; and 6, a provision envisaging larger salaries to be voted by the Assembly.
Each of the changes proposed may be desirable in itself, but none of them is vital. Of those enumerated, the first would apply at present only to Brazil, which, though a party to the Court Protocol of 1920, cannot now participate in the election of judges, because she has no representative in the Assembly and the Council. It would not apply to the United States, whose participation in the elections is provided for in a separate Protocol for American adhesion.
The proposal to increase the number of judges was partly due to the anticipation that the work of the Court would grow in volume; but though such a growth seemed likely in 1928, there has been no great increase in 1929 and 1930, and there is now little prospect of increase in the near future. Another reason for this change was a desire to give the deputy-judges, who had been frequently called upon to sit as judges, the dignity of the higher position. A court of fifteen judges is in some ways less manageable than a court of eleven judges; there would seem to be some psychological limitation to the number of men who can sit in common judgment, though the amendment would avoid too large a bench by providing that some of the judges need not sit in certain cases.
The new provision for resignations would fill an obvious lacuna in the original statute, but one that has occasioned no serious inconvenience. The requirement that judges devote all their time to the work of the Court seems particularly desirable. Some of the judges have engaged in practice before national courts, and we have had what some people regard as the unseemly spectacle of a judge of the World Court leaving The Hague to plead in an inferior national tribunal. The question arises, however, whether the best qualified men can be attracted to serve on the Court, giving it their full time, if the work will not demand all of their energies. During its first eight years, the average annual duration of the sessions of the Court was 147 days. When the time occupied in necessary travel is added to this, it would seem that most of the judges must devote more than 175 days a year to their duties -- perhaps an adequate complement for even the most energetic of men. The amendment would also have provided that except for liberal vacations, the judges must "hold themselves permanently at the disposal of the Court," a phrase generally interpreted to mean that they must live at or near The Hague; this would require a degree of expatriation which some might be reluctant to undertake. The amendment requiring the Court to remain permanently in session might expedite the hearing of some cases and might overcome some of the past difficulties in getting a quorum; but as the Court's work does not demand continuous activity, the permanent session would probably have little advantage over the present system of annual ordinary sessions and occasional extraordinary sessions.
The proposed new articles of the Statute do little more than to incorporate provisions concerning advisory opinions now existing in the Rules of Court. They would fill a clear lacuna in the existing statute, which fails to mention advisory opinions expressly; but this lacuna has caused no difficulty in practice. The only inconvenience resulting has been in connection with the American reservations, and this is adequately covered by the provisions of the separate Protocol for American adhesion.
The substantive importance of the proposed revision is, therefore, not great -- M. Politis explained to the Assembly in 1929 that it was "a very slight revision" -- and some of the results can be accomplished without any change in the Statute itself. The Assembly, acting on the proposal of the Council, may increase the number of judges, and it also has power to determine their salaries; the Court itself is given power by the Statute to make rules of Court which would control the duration of its sessions.
Unlike the Covenant of the League and the constitution of the International Labor Organization, the Statute of the Court makes no provision for its own amendment. This is a lacuna which the proposed amendments would not fill. It is a recognized principle of international law that a treaty cannot be amended without the consent of all the parties, and the Court Protocol of 1920, to which the Statute of the Court is annexed, being for this purpose a treaty, can be amended only with the consent of all the states which have signed and ratified or adhered to it. But no particular formality is required by international law for the giving of this consent, and it may be less formal than the instrument which is to be affected.
The Conference of Signatories of 1929 was fully aware of this question. The principal reason advanced for undertaking the revision at that time was that the judges to be elected in September 1930 might take office under the revised Statute; hence it seemed very important that the Protocol for revision be brought into force before the 1930 election was held. This meant that the consent of the forty-five states that have now signed and ratified the Court Protocol of 1920 had to be obtained. Formal ratifications always require a great deal of time, and as it seemed very improbable that the requisite number of formal ratifications would be forthcoming in the limited interval, the Conference of Signatories put into the new Protocol a provision that it should come into force on September 1, 1930, if on that date the Council had satisfied itself that none of the qualified states which had failed to ratify had objection to the coming into force of the amendments. This action was taken by unanimous vote, though the Cuban representative abstained.
The Council was not in session on September 1, 1930; when the question came before it on September 9, 1930, thirty-two of the parties to the Protocol of 1920 were reported to have ratified the new Protocol, and of the others none except Cuba had offered positive objection to the coming into force of the amendments, though Brazil and Uruguay had stated that they lacked the necessary parliamentary approval for agreeing. Both the Dominican Republic and Guatemala had supported the objection of Cuba, but as these states had not ratified the Protocol of 1920 their support was ineffective. The position of Cuba made it impossible for the Council to declare fulfilled the condition on which the Protocol for revision might have come into force. It would serve little purpose to inquire into the grounds of the Cuban Government's objections; the reasons advanced in the Cuban letter of August 16, 1930, are far from convincing, and except for the contention that the amendments would unduly favor the continent of Europe by compelling the judges to live at or near The Hague, they are of little substance. Possibly the Cuban Government might have voiced its objection before thirty-two other states had proceeded with their ratifications, but it would be impossible to say that any expectations were disappointed, for the Protocol for revision was never signed in Cuba's behalf.
The question then arises whether the new Protocol may still come into force. The Eleventh Assembly seems to have given an affirmative answer, for on September 25, 1930, it expressed a hope that all the states should ratify as soon as possible. The view seems to have prevailed at the Assembly that the Protocol for revision, if it is to come into force in the future, must be ratified by all the states which have or may have ratified the Protocol of 1920; indeed, no other view seems possible, for the Council has now discharged its only function with respect to the former Protocol. It seems most improbable, then, that the necessary ratifications will soon be forthcoming. Even if Cuba withdrew her objections, experience has shown that it is a most difficult thing to get as many as forty-five ratifications of an international instrument; after twenty-three years, the Hague Convention for the Pacific Settlement of International Disputes of October 18, 1907, amending the earlier convention which set up the Permanent Court of Arbitration, has been ratified by but twenty-six of the forty-three signatories. It would have been a possible if not a wiser course for the Assembly to have declared the Protocol for revision to have lapsed, so as to open the way for any fresh effort thought desirable; but no inconvenience is to be anticipated from the present situation. The ground was prepared for the coming into force of the amendments by the election of fifteen judges for the new term of nine years, and that event will have no embarrassing consequence for the Court, though of course it will abolish the post of deputy-judge.
The Protocol for revision was signed on behalf of the United States; by courtesy it had been so drafted that the amendments could not come into force if the United States expressed any objection even before its adhesion to the original Court Protocol became effective. Before the Council's meeting in September, the United States notified the Secretary-General of the League of Nations that it had no objection to the amendments. In his letter of November 18, 1929, recommending to the President the signature of the three Court Protocols, the Secretary of State placed some reliance on the pending amendments. The question then arises whether the failure for the time being of the Protocol for revision affects the fate of the separate Protocol for American adhesion, also opened for signature on September 14, 1929.
The United States proposed to adhere to the Court Protocol of 1920 with the original Statute annexed; its adhesion would be effected by the coming into force of the separate Protocol of September 14, 1929, which makes no mention whatever of the revision Protocol of the same date. The Protocol for American adhesion can become effective only when it is ratified by the forty-five states which have ratified the 1920 Protocol and by the United States; it has now (November 1, 1930) been signed on behalf of all those states except Abyssinia, and ratified by some thirty states, not including the United States. The Protocol of 1920 and the Protocol for American adhesion are the only instruments essential for support of the Court by the United States, and as the two stand quite apart from the Protocol for revision they are in no juridical sense affected by the fate of the last-named instrument.
Nor is there any substantial reason for the adhesion of the United States to be opposed on account of the failure of the amendments. The amendments were not designed to meet the special requirements of the United States, though the addition of the four new articles on advisory opinions was in line with American insistence. The Conference of Signatories of 1929 endeavored to meet the reservations adopted by the United States Senate in 1926 in the provisions of the separate Protocol for American adhesion, and when that Protocol comes into force, adequate satisfaction will have been given to the American reservations. One article of the proposed amendments not covered by the provisions of the Protocol for American adhesion resulted from the insistence of individual Americans, not of the Government of the United States -- Article 68, which provides that "In the exercise of its advisory functions, the Court shall further be guided by the provisions of the Statute which apply in contentious cases to the extent to which it recognizes them to be applicable." As this article leaves a wide discretion to the Court, which already has the settled policy of assimilating advisory procedure to that in contentious cases, its omission can hardly occasion any grave concern in the United States.
It would seem that no very urgent reasons existed for initiating the revision of the Statute of the Court in 1928. The proposed amendments would have filled some obvious lacunas and they included some desirable changes; but they were not vitally important in themselves, and some of their results can be, indeed have already been, accomplished without any change in the existing instruments. The amendments have so far failed to come into force, chiefly because of the objections of a state which is in the best of relations with the United States; if, legally, they may still come into force, it is very improbable that they will do so in the near future. But no serious inconvenience would result from their failure, and such an outcome will affect neither the legal possibility nor the practical desirability of proceeding with the measures necessary for the United States to give its support to the existing Court.