America’s China Policy Is Not Working
The Dangers of a Broad Decoupling
THE Committee of Jurists which met in Geneva in March of this year had for its primary duty the revision of the Statute of the World Court. With the help of one of its members, Mr. Root, the Committee also drafted a plan for facilitating the adherence of the United States to the Court,[i] but that was not the original object of the Council and Assembly of the League when they brought the Committee into being in 1928. The time seemed ripe for a study to determine whether revision were needed, because the entire bench of the court must be re-elected in 1930 and the experience of eight years could be drawn upon.
As Mr. Root has stated, the Committee which created the Court Statute in 1920 were engaged in an experimental undertaking, for no such court had ever before existed. That Committee had not anticipated how much business the new Court would have. The new Committee felt that the original organization of the Court was not such as to facilitate the expeditious handling of so many cases, and it was recognized that the international situation frequently requires immediate action by the Court. Thus, as Mr. Root said, "The lessons which the Committee of 1929 has had to apply have been the lessons, not of failure, but of success."
Under the present Statute, the Court has one fixed meeting a year and such extraordinary sessions as are necessary. When not actually sitting on a case, a judge may be at his own home at a great distance from the Court, engaged in almost any occupation or profession other than certain governmental positions or participation in international controversies. Under the proposed amendments, "The Court shall remain permanently in session except during the judicial vacations" and the judges "may not exercise any political or administrative function, nor engage in any other occupation of a professional nature." In other words, the Court and its bench are put upon a strictly permanent judicial basis comparable to that of the United States Supreme Court and its justices. Since the judges would be required to be permanently at the disposal of the Court, except when on vacation, the need for deputy-judges was deemed to have ceased, and if the suggested amendments are adopted that category would be given up. At the same time the regular bench would be increased to fifteen members, though the quorum of nine is unchanged. This makes it possible to provide a system of rotation which Mr. Root suggested, based on the experience of the New York Courts. To give added assurance of the competence of the judges it is suggested that the nominating groups be urged to select persons with "practical experience in international law" and who "are at least able to read both the official languages of the Court [English and French] and to speak one of them." The Court's experience demonstrates the difficulty and delay involved if a judge is unable to read the often voluminous records submitted to the Court or, in conference, can neither understand his brethren nor express his thoughts to them. Nevertheless, it was not felt that this could be anything more than a recommendation, lest otherwise highly qualified persons should be ineligible to election.
In line with the increased duties placed upon the judges, it is suggested that their compensation should be increased. In place of the present system of special allowances and a small salary, a larger fixed annual salary, without extra sums apart from certain travelling expenses, is recommended. Under Article 32 of the Statute the salaries are fixed by the Assembly on the proposal of the Council. The Committee recommends as the new salary 45,000 Dutch florins, or about $18,000 a year. The President and Vice-President would receive additional grants.
The most important other amendment suggested is the incorporation in the Statute of certain provisions now found in the Rules of Court relating to Advisory Opinions. It is planned to add a new chapter to the Statute dealing with this subject. These articles of the Rules in their present form were adopted by the Court after the Senate had enunciated the fifth reservation, which in its first part requires the Court to render advisory opinions in public and after notice and hearing, or opportunity for hearing, has been given to all states concerned. These provisions give full satisfaction to the requirement of the United States Senate, and the perpetuation of them by incorporating them in the Statute would give assurance that the Court can never be the secret advisor of the Council or Assembly of the League.
Two suggestions for changes in the organization of the court are of interest, although they were not approved by the Committee. The first was a proposal to abolish dissenting opinions. At present any judge on the Court may express a dissenting opinion, which is published with the majority opinion. This is in accordance with Anglo-American judicial practice. In continental European countries, however, a court renders a single judgment and dissenting views are not made public. Some members of the Committee who were accustomed to this latter procedure thought it would be preferable for the World Court. Mr. Root, Sir Cecil Hurst and other members of the Committee vigorously opposed this view and the suggestion for a change was withdrawn.
The second of the unsuccessful suggestions emanated from Sir Cecil Hurst. The present Statute contains provision for the appointment of "national judges" as follows: If a dispute between states A and B comes before the Court and if a national of state A is a judge on the regular bench, but no national of state B is, then state B may appoint ad hoc a national judge to sit in that case. Sir Cecil Hurst proposed that the Committee should adopt the view that, for purposes of this arrangement, the British Dominions should be considered as states distinct from the British Empire. For example, if a case came before the Court involving Japan and Australia, a Japanese judge being among those on the bench, Australia would be entitled to appoint a national judge ad hoc in spite of the presence of an English judge on the bench. The Committee finally decided that it was not competent to pass on this point, since Sir Cecil had suggested not an amendment to the Statute but an interpretation of it. Nevertheless, in the course of the discussion it appeared that a majority of those who spoke were opposed to the suggestion and the practical effect was a rejection of the proposal. M. Politis of Greece made a particularly eloquent argument against Sir Cecil's suggestion.
As in the case of the Protocol for American Adherence, a protocol embodying these amendments will eventually be prepared for signature and ratification. But while it seems highly probable that the Protocol for American Adherence will be approved without alteration, it is quite likely that the suggested statutory amendments will be further revised by the Council or by the Assembly or by both. Then, before coming into effect, it must secure the ratification of every state which has ratified the original Protocol of Signature of December 16, 1920. If this unanimous approval is not given before June, 1930, when nominations must be made for the entire bench of judges, all of whose terms expire in that year, it was suggested in the Committee that the matter would have to wait for nine years, that is until there is another full election. The reason for this was that the provisions abolishing deputy-judges and requiring regular judges to devote all their time to the Court could not properly be imposed in the midst of a judge's term of office.
Another complication appears from the American point of view. There will be two treaties or protocols which require the approval of all states parties to the original Court treaty. There are two possible eventualities, depending on the sequence of events. In the first place, the other states may ratify the Protocol for American Adherence before ratifying the Protocol of Amendments. Then if the United States also ratifies promptly it will complete its adherence to the Court. It will be a party to the original Court treaty and its approval also will be necessary before the amendments can take effect. But if the other states first ratify the Protocol of Amendments, or do so simultaneously, then the United States could not adhere to the Court without first accepting the amendments. The difficulty is not serious, however, because there appears to be nothing in the amendments which would be unacceptable from the American point of view, and much that is directly in accord with it.
[i] See page 585.