The Hollow Order
Rebuilding an International System That Works
IF THERE is one feature of American foreign policy that has remained constant during the last half-century it would seem to be our support of the idea of a permanent international court of justice. When Secretary John Hay directed our delegates to the first Hague Conference to propose the establishment of such a tribunal, he traced the growth of an "almost continuous movement of thought in this direction since 1832," when the Senate of Massachusetts had adopted a resolution on the subject; and it was in no small measure due to the efforts of the American delegates that the panel known as the Permanent Court of Arbitration was set up in 1899. Eight years later President Roosevelt wanted "to see the Hague Court greatly increased in power and permanency," and Secretary Root instructed our delegates to the second Hague Conference to endeavor "to bring about a development of the Hague tribunal into a permanent tribunal." But no agreement could be reached as to the method of selecting the judges, and it has remained for the Permanent Court of International Justice, established during the last two years, to achieve that result. This new Court is quite obviously in line with what our government has been standing for during the administrations of Presidents McKinley, Roosevelt, Taft and Wilson, and the all but universally favorable comment on its organization seems sufficient indication of its fulfilment of American hopes.
But the Government of the United States has had no part in setting up the new Court, and we are now confronted with the necessity of deciding what share we shall have in maintaining it. The problem is not without its difficulties, and these must be clearly understood if the administration is to have the assistance of an informed opinion in meeting them.
Secretary Hughes has called attention to the fact that under the present constitution of the Permanent Court of International Justice the United States has no voice in the election of the judges. In a statement on July 13, 1922, he declared that he saw "no prospect for any treaty or convention by which we should share in the maintenance of the Court until some provision is made by which, without membership in the League, this Government would be able to have an appropriate voice in the election of the judges." In his address at Boston on October 30 he was more hopeful, for he stated his belief "that suitable arrangements can be made for the participation by this Government in the election of judges of the International Court which has been set up, so that this Government may give its formal support to that Court as an independent tribunal of international justice."
If these statements may be taken as a considered formulation of the policy of the Government of the United States with reference to the new international Court, they are significant for two reasons. They seem to admit the general acceptability of the plan and organization of the Court, as well as the desirability of American cooperation in maintaining it; while they set a condition precedent to such cooperation which most of the Americans who are interested in the subject at once recognize to be proper and requisite. It is no longer necessary, therefore, to argue the general question of American acceptance of the new Court as being in line with the policy which our government has consistently followed for the last quarter of a century. The Secretary of State has invited the discussion to be shifted to the precise measures by which American cooperation in maintaining the existing Court can be effected; and the condition which he sets formulates a concrete and immediate problem, toward the solution of which it may be hoped that discussion will contribute.
The establishment of the Permanent Court of International Justice is one of the triumphs of international cooperation since the war. The Peace Conference had made no attempt to satisfy the demand so often heard during the war for a "real" international court. The task was too delicate for a post-war Paris. So the Covenant of the League of Nations stopped with providing that the Council should "formulate and submit to the members of the League for adoption, plans for the establishment" of a court competent to deal with "any dispute of an international character which the parties thereto submit to it." At its first meeting for the transaction of business the Council of the League proceeded to set up a committee of jurists, which included Mr. Elihu Root, to draft a project for the Court. The deliberations of this committee continued through the summer of 1920, and before the end of that year its project had been approved, with some amendments, by both the Assembly and the Council. The final plan was then embodied in a statute which was adjoined to a formal "protocol of signature."
This protocol establishing the statute of the Court has now been signed by forty-six states, of which thirty-five have deposited their formal ratifications. It is a distinct instrument, resting on its own independent basis, and deriving its operative force neither from the Covenant nor from any action by the Assembly and Council of the League but from the formalities of its own execution and ratification. It even goes beyond the terms of Article 14 of the Covenant, both in its provisions for the Court's jurisdiction and in its provision for the participation of states not members of the League of Nations. As it exists, therefore, the Court is a quite independent body, though it is in many respects dependent on the continued existence of the machinery of the League, and indeed is itself a part of that machinery. Being set up by an independent treaty, its functioning cannot be controlled by the organs of the League, and it would seem to be entirely free from the objections made to the League itself.
The record of the Court already affords some basis for an estimate of its value. The first election of the judges was held in September, 1921, and the foremost American authority on international law, Mr. John Bassett Moore, was made one of the judges. In January, 1922, the Court held its first organization meeting, followed in June by the beginning of its sessions for the hearing of cases. In July and August, 1922, it handed down three advisory opinions on questions submitted to it by the Council, all having to do with controversies relating to the International Labor Organization. On October 2, 1922, a dispute between France and Great Britain over the nationality laws of Tunis and Morocco was submitted to it. And a dispute between various signatories of the Treaty of Versailles relating to the Kiel Canal now seems to be on its way to the Court. So that it has already begun to lay the foundations of a new jurisprudence in international law.
The new Court is not merely a private court of the members of the League of Nations, as one critic has suggested. From the beginning it has been open to certain states not members of the League. In May, 1922, the Council of the League, acting under power conferred by Article 35 of the statute of the Court, opened it to all nations of the world, regardless of membership in the League, on condition of the deposit of a declaration accepting the jurisdiction of the Court. As it exists today, therefore, it is a world court open to all the states of the world on terms of equality. It constitutes an important addition to the Permanent Court of Arbitration and other existing agencies for the pacific settlement of international disputes.
Though the Government of the United States has had no part in its establishment, the Court has a distinct relation to the United States; and an understanding of this relation must precede any attempt to consider the methods by which the Government of the United States might cooperate in maintaining it. Why is there a need for any formal action by our government such as that referred to by Mr. Hughes? What advantages would it bring to the United States, and to the Court itself? And how may such action be taken speedily and effectively?
In the first place, the Court is open to the United States on the same terms as to states which have signed and ratified the protocol. Article 35 of the statute provides that the Court shall be open to states mentioned in the annex to the Covenant. It is by virtue of falling within this description that the United States may take a dispute to the Court if the other party consents, or may consent to be sued in it by some other power. In this respect the situation would probably not be changed after formal adoption of the statute by the American Government. For it seems improbable that the United States would adopt the optional clause, annexed to the protocol, for accepting "as compulsory ipso facto and without special convention the jurisdiction of the Court in conformity with Article 36" of the statute. In ratifying the Hague Convention of 1907 relating to the Permanent Court of Arbitration, the United States made a reservation protecting its freedom of action; and recent history has probably brought us no nearer to agreeing to "compulsory jurisdiction." Though fourteen of the thirty-five ratifying states have adopted the optional clause, it has not had the approval of any of the so-called principal powers. Action by the American Government which did not include the acceptance of this optional clause, then, would in no way change the existing situation so far as the use of the Court is concerned. The United States would remain free, as it is now, to decide at the time an issue arises whether it will invoke the new Court.
In the second place, although we enjoy with other peoples of the world the privilege of carrying our disputes before the Court and the common advantage of the world's having at hand such machinery for the pacific settlement of international disputes, no part of the expense of maintaining the Court is borne by the Government of the United States. For instance, we pay no part of the salary of Judge John Bassett Moore. It is true that the expense is not great. The total expense for 1923, including the salaries of the judges and the rental of the Court's headquarters in the Peace Palace at The Hague, will be somewhat under $400,000. The statute provides that this expense is to be borne by the League of Nations "in such manner as shall be decided by the Assembly on the proposal of the Council," and the Assembly has decided that for the present the expense "shall be incorporated in the general budget of the League and paid out of the ordinary funds of the League." But the adoption of the statute alone would not have the effect of fixing the quota of the United States, for it contains no provision requiring states not members of the League to share in bearing the expense, except with respect to the expenses of particular adjudications in which such states are parties. The quota of the United States would then have to be fixed by a special arrangement between the United States and the Council. This arrangement might provide that our annual contribution could be paid directly to the registrar of the Court, without passing into the general funds of the League. This would follow a precedent set with reference to Germany's contributions to the expenses of the International Labor Organization, which are paid directly to the Director of the International Labor office though the expenses of the Organization are met out of the general funds of the League. The adoption of the Court statute, followed by such an arrangement, would occasion no embarassment to the United States, therefore, and would not create any appearance of American support of the League itself. On the other hand, it would relieve the richest nation in the world of the present embarassment of making no contribution to the support of the world tribunal.
Thirdly, though the United States may now participate in a limited way in the preliminaries of the election of the judges of the Court, we have no voice in their final election, as the Secretary of State has pointed out. This is not so important with reference to the present incumbents, all of whom are outstanding men in the field of international law. The present personnel would seem entirely satisfactory, and it is difficult to believe that Secretary Hughes' statement about American participation in electing the judges was intended to apply in any way to the election which has already been held. As the term of office of the present judges will not expire until 1930, no general election is scheduled for eight more years, though vacancies may have to be filled in that interim. The successor to Judge Moore would very probably be an American; but if a future election should result in no American being among the judges, it would still be open to the United States, under Article 31 of the statute, to choose an American to sit ad hoc in any case in which the United States should be a contesting party. It is not so much a fear that the United States will not be represented on the Court as a desire to participate in choosing the other judges and to have an influence in the election equal to that of any other state which makes it essential that the United States have a voice in all future elections.
The procedure of the election is not simple. In the preliminary stage, nominations are made by the national groups in the Permanent Court of Arbitration set up by the Hague Conventions of 1899 and 1907. The judges are then elected by the Assembly and Council, proceeding independently, from the list of persons thus nominated. The choice is restricted to such persons, except that in case of a deadlock between the two electoral bodies a joint conference of three members from each makes the selection.
In the first stage of this procedure, the United States now has the same voice as have states which have ratified the Court protocol. It is clearly provided in Article 5 of the statute that the invitation to nominate "persons in a position to accept the duties of a member of the Court" shall be addressed by the Secretary General "to the members of the Court of Arbitration belonging to the states mentioned in the annex to the Covenant or to the states which join the League subsequently." In 1921 an invitation was sent to the American members of the Court of Arbitration. It is possible that, in view of their having been named under the Hague Convention of 1907, the American members may consider themselves incompetent to go beyond their functions as defined in that Convention. In a letter of July 19, 1922, Mr. Hughes has said of the American failure to nominate in 1921 that "the point was that the American judges had been appointed under the Hague Convention of 1907, and they were asked to take action under another treaty to which the United States was not a party." But the provisions of the Hague Convention are not restrictive, and the American judges could hardly fail to accede to the expressed wishes of the Secretary of State in this regard. The invitation is transmitted to them through the Secretary of State, and there would seem to be no difficulty about his giving special authority for making a nomination.
American participation in nominating the judges can thus be secured, as things stand now, without any action by the Government of the United States with reference to the protocol and statute of the Court. The four American members of the Court of Arbitration may nominate not more than two Americans, and not more than two persons of a different nationality. The choice of the American nominees would be certain to have great influence on the electoral bodies. Once it is determined that an American is to be chosen, these bodies would be very likely to elect as judge the American preferred by the American members of the Court of Arbitration.
In the second stage of the election procedure--the voting in the Assembly and the Council--the United States now has no part because it has no representation in either body. In naming the Assembly and the Council as the electoral bodies to choose the judges, the Court statute must refer to these bodies as constituted by the Covenant. It is to be noted that their competence as electoral bodies depends not upon the Covenant but entirely upon the statute itself.
If the Court is to be used by the United States as need arises, and if we are to give it the cooperation which is essential to its prestige and authority, it is necessary to make some arrangement which will allow us to participate in this second stage of the election. Even if we feel sure that an American will always be one of the judges, and that he will always be the first choice of the American members of the Permanent Court of Arbitration, many Americans would still think it necessary for us to have a direct voice in the selection of the other judges. This involves a change in the existing situation, and Secretary Hughes has formulated the problem which this change would present. How can the United States cooperate in maintaining the Court, having an appropriate voice in the election of the judges, without incurring any of the obligations of membership in the League?
The United States has been invited to sign the protocol to which the Court statute is annexed. A provision was inserted in the protocol itself that it should "remain open for signature by the members of the League of Nations and by the states mentioned in the annex to the Covenant of the League." When the draft of the protocol was presented to the first Assembly of the League, Dr. Hagerup, the rapporteur, explained this paragraph by saying: "This means that the United States can adhere to the Statute." Technically, action by the United States might take either of two forms--signature followed by ratification, or adhesion without signature. Perhaps adhesion would be the simpler method to adopt in view of American constitutional procedure; the Senate's consent would then be obtained before any formal action is taken by the Executive. The protocol does not exactly encourage such action, for it is cast as an instrument entered into by members of the League; but an explanatory saving clause would avoid all difficulty.
To meet the election problem some express provision seems necessary. Of course it is possible that the statute of the Court should be amended. But the general outlines of the present scheme for electing the judges have produced such universal satisfaction that no amendment should be considered which would lead to their abandonment. It would be disastrous to reopen the whole discussion as to the method of electing the judges,--the rock which wrecked the plans for a Court of Arbitral Justice in 1907. Mr. Root's greatest contribution to the new Court was his suggestion that the election should be entrusted to the Council and the Assembly. These are, indeed, the only two bodies in existence which reconcile in a practical way the theory of the equality of all states with the actual hegemony of a few. The compromise has given satisfaction to the small powers by reason of their participation in the Assembly and to the principal powers by reason of their votes in the Council. To upset the present scheme might mean a return to the deadlock of 1907. Any amendment in the statute, therefore, should keep the present election frame-work and in some way open up the electoral bodies to the representatives of the United States.
It would not be difficult to frame a general provision for insertion in the statute which would confer upon states which are mentioned in the annex to the Covenant and which sign and ratify or adhere to the protocol the same powers and privileges as are possessed by other states invited to sign the protocol by reason of their membership in the League. A provision might easily be drafted, also, which would assure to states named in the Treaty of Versailles as "principal powers" participation in the voting in the Council. Such an amendment would leave the electoral power with the Council and the Assembly, but would give to the United States a voice in those bodies when they act outside the Covenant in discharging the electoral function.
It is a less simple matter to plan how such an amendment of the statute can be put into effect. Unfortunately, the statute itself makes no provision for its amendment. Nor are the Assembly and the Council empowered to change the independent treaty which the protocol and statute together constitute. Such competence is conferred upon those bodies neither by the Covenant nor by the protocol; nor was it reserved when, on December 13, 1920, the Assembly passed its resolution approving the statute and directing the protocol to be opened for signature and ratification. It seems, therefore, that an amendment can be effected only by the same formal processes which were employed in the original promulgation of the statute. This would mean that a new protocol must be signed and ratified by all the thirty-five states which have ratified the existing protocol, if not by all of the forty-six states which have signed it. Such a procedure would be both cumbersome and time-consuming. In view of the role of the League in establishing the Court, no body outside the League is likely to take the initiative in framing the new protocol. It could be drawn up by the Council of the League, but the Council would probably want the collaboration of the Assembly before promulgating it for signature and ratification. The Assembly does not meet again in ordinary session until September, 1923. Furthermore, since the treaty-making machinery in most governments now involves some parliamentary action, few governments would find it possible to ratify until the consent of their parliaments had been given. Some parliaments meet infrequently. If the formal action of thirty-five or forty-six governments had thus to be awaited, a change in the statute of the Court could not be effected for many months or even years.
Moreover, the process of amendment might reopen some of the controversies which the compromises of the existing statute put at rest. And since the United States is the only country on whose behalf the change would be attempted, the process might draw attention to the peculiar features of the American position in an unpleasant if not an embarrassing manner. It would seem most desirable, therefore, to avoid attempting to secure an amendment to the statute if provision for the United States to participate in the election can be made in any other way.
Is it possible to obtain the desired result--without changing the existing statute--by appropriate conditions or reservations to be attached to a ratification of the protocol establishing the Court? A reservation might stipulate that no election should become final until the United States had been consulted; but this might smack of reserving a veto possessed by no other state. Might not the United States ratify or adhere with a reservation that she be admitted to participate in the election of the judges by the Assembly and by the Council when those bodies act, not under any provisions of the Covenant, but as the electoral bodies named in Article 4 of the statute of the Court? The electoral functions of the Assembly and the Council as outlined in the statute are quite distinct from their general functions as outlined in the Covenant; and participation in the former would in no way involve the United States in the latter. To clinch this point, however, and to erect a buffer for the future, such a reservation might distinctly state that no other obligations are assumed by the United States. If necessary, it could be added that the United States might at any time denounce the protocol and withdraw from further cooperation.
Such a reservation would, of course, require the acquiescence of all the thirty-five states that have ratified the protocol of the Court. But it seems very probable that such acquiescence could be counted upon; and perhaps assurances of it could be secured in advance. It might be effected in the following manner: In line with a provision of the protocol itself, the American ratification or adhesion would be forwarded to the Secretary-General of the League for notification to other states and for deposit in the archives of the Secretariat. If it were desired, the Council of the League might specially authorize the Secretary-General to receive such ratification or adhesion as effective, and this authorization would have a de facto if not a de jure value for the future. The notification to the signatory states would give them the necessary opportunity to object to the American reservation. It seems most improbable that any state would object. In the absence of objection the reservation of the United States would be established, just as the American reservations to three of the Hague Conventions of 1907 were established. It is difficult to imagine that any challenge to American participation in a future election would be made thereafter. Indeed, it would seem that the American reservation would create a juridical situation as an interpretation of the effect to be given to the language of the protocol itself; for in expressly stating that it should "remain open for signature by the members of the League of Nations and by the states mentioned in the annex to the Covenant of the League," the protocol must have established some degree of parity between these two classes of signatories.
From the point of view of the other Powers that have ratified the protocol, this procedure could hardly be deemed objectionable. It would not set any dangerous precedent which might become embarrassing if followed by other states; Ecuador and the Hedjaz are the only other states mentioned in the annex to the Covenant which are not members of the League, and if Ecuador should seek to ratify, with a reservation that she be permitted to participate in the voting in the Assembly, the other states would probably acquiesce. Of course, the United States would make clear her willingness to negotiate an arrangement regarding her quota of the expenses. This settled, the other powers would doubtless welcome American cooperation on the terms of the reservation suggested.
If ratification with such reservations is politically possible, it is manifestly simpler than an amendment of the statute. It would require action by only one legislative body, while amendment might require action by thirty. It is, of course, important to remember that the one body in question is the Senate of the United States. But it seems impossible to devise any satisfactory course which would avoid the necessity for some action by the Senate. Even if we stopped short of taking formal action with reference to the protocol and statute, if we should merely appropriate money for our quota of the Court's expenses and pass our blessing on Judge Moore's participation in the Court--which seems the least that can be done--still the Senate would have to act. We could not succeed in avoiding a debate on the statute and protocol at some stage. Nor would merely informal action achieve the result of allowing the United States to participate in the election, unless it were accompanied by action by the other powers. Some formal action is needed in any event.
A ratification with reservations would not commit the United States to any of the provisions of the Covenant. Article 13 of the Covenant requires members of the League "to carry out in full good faith any award," and this may be interpreted to include decisions of the Court--a committee of the second Assembly gave it this interpretation in proposing that the meaning should be made clearer by amending the Covenant. But such "sanctions" for the Court's decisions as are to be found in the Covenant are not referred to in the statute, and in adopting the latter the United States would become in no way bound by the former. It would be a simple matter for a reservation to spell this out, by expressly stating that the United States becomes in no way bound by Article 14, which is the only article of the Covenant expressly mentioning the Court, or by any other article of the Covenant.
It may be concluded, therefore, that the necessity for having a voice in the election of the judges need not preclude immediate action by the United States if we desire to share in maintaining the Permanent Court of International Justice. The conditions set by Secretary Hughes would seem to be fully met if an American representative should sign the Court protocol, with a clear indication that the United States signs not as a member of the League but as a state mentioned in the annex to the Covenant; and if the President should ratify the protocol, with the advice and consent of the Senate, with reservations (1) that the United States shall enjoy all the privileges enjoyed by any other signatory state and shall be admitted to participate in the voting in the Assembly and the Council when those bodies act, not under any provisions of the Covenant, but as the electoral bodies named in Article 4 of the statute of the Court; and (2) that the United States does not by this act become in any way a party to, or bound by, Article 14 or any other article of the Covenant of the League of Nations.
Such a ratification would give the United States a full voice in the election of judges, it would avoid any commitments to the League, and it would greatly enhance the prestige and moral power of the Court for the future. One does not need to be under any illusions as to the importance of courts in the political life of the world to think that a great opportunity is now offered to America, and Secretary Hughes' statement of October 30 gives promise that it will not be neglected.