Studies in International Adjudication

154 Pages·2011·12.27 MB·English

Studies in
BY'I'JII1 SAME AUTHOR
Compulsory Jurisdiction ofthe International Court ofJustice, . International
1961
International Courts and Contemporary Conflicts (in press)
Adjudication
R. P. ANAND .,.~,
Professor and Head ofthe Department
of International Law,
Indian School of International Studies
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VI K A S PUB LIeA T ION S
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,'I Preface
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RamPrakashAnand (1933)
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IN THE MAN'S lpng struggle for peace, one of the oldest and most
ubiquitous approaches to peace has been the peaceful settlement
ofinternational disputes on the basis oflaw. In all civilized socie
ties, disputes between man and man are settled in courts under the
i4f
:1 ru~e oflaw. But the law ofthe jungle still prevails as the 1ilt~p1ate
", 4,
mechanism to settle disputes betweennations. Ifwe want to avoid
the bloodbath of war and the total annihilation of whatever we
cherish, we should be prepared to resolve our' disputes through
impartial third-party settlement, if direct orindirect negotiations
between parties fail. That is the only civilized way'to settle dis
putes. And that IS perhaps the only way to save and preserve our
civilization and the "succeeding generations from the scourge of
war.'" Supremacy of law withinnatioris .insures the freedom of
man. Supremacy oflaw in the community ofnations, it is hoped,
'H" will free mankind from the dread of a nuclear war.
But while the ideal is admitted, the difficulties in its achiev~ment
must not be underestimated. There are many pitfalls in the path
'11'1'
ofsuccess. In the first instance, it must be confessed that judicial
procedure cannot, by its very nature, be a substitutefor.war. In
fact so longas the world remains as unorganized as at present; and
the security and,welfare of each State are left to it alone, world
history cannot be turned into a court procedure. It is a bitter
truththatmostmajordisputes, involvingthevitalinterests ofStates,
have notbeen, andperhapscannot be, settledbyjudicialprocedure.
Neither can revolutions be controlled by courts in the national
field.
However, though it is true that law is not a cure-all or panacea,
neither is it entirely helpless and a mere slave ofpolitics. Law has
a statecraft of its own. By settling even some of the "minor"
PRINTED IN INDIA disputes, c.ourts canhelp create a law-habit among States and bring
about an atmosphere of peace. They cannot settle politically
ATNATIONAL PRINTING WORKS, 10 DARYAGANJ, DELHI-6, AND PUBLISHED BY
SHARDA CHAWLA, VIKAS PUBLICATIONS, 5DARYAGANJ,ANSARI ROAD,DELHI-6 ,charged conflict of interests, but by deciding even "unimportant"
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vi PREFACE f.1
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disputes, politically speaking, they can render a most useful service, II
.'
as they do in the national field. Law and the courts can be of
immense help in the everlasting struggle of humanity against f
unreason. They do have vast potentialities as yet unexploited. Contents
Itis definitely one ofthe promising approaches to peace.
Convinced about the.usefulness, even indispensability, of inter
national adjudication in the settlement of international conflicts,
I have been exploring various aspects ofthe subject during the la~t
several years. This book is a collection of these studies made at
I The United States and the World Court 1
different periods, many of which have been published in various
journals, viz. International Studies, Indian Year Book of Interna
II India and the World Court 36
tional Affairs, India Quarterly, and University of Pittsburg Law
Review. I am indebted to their editors and publishers for per
III Attitude ofthe "New" Asian-African Countries
mission to make use of the material.
towards the International Court ofJustice 53
R.P. ANAND IV The International Court ofJustice and Impartia
lity between Nations 73
V International Status ofSouth-West Africa 119
VI The International Court ofJusticeand theDeve-
lopment ofInternational Law 152
VII The Role of Individual and Dissenting Opinion
inInternational Adjudication 191
r~' VIII The Kutch Award 218
II
IX Execution of International Judicial Awards:
Experience Since 1945 250
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I Index 287
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1
.The United' States and
the World Court
THIRD-PARTY SETTLEMENT of international disputes through
arbitral or judicial procedure, prevalent among :the· Greek city~
States, if not earlier, was intermittently applied during the Middle
Ages and was not absolutely unknown during the sixteenth, seven
teenth, and eighteenth centuries thoughrarely practised.1 Howeveri'
1t was introduced to the modern world only by the United States
after its appearance on the horizon·of the international scene.
Although the United States achieved its independence by means
ofa revolution, and therefore by resort to arms, yetfrom the very
beginning of its history it adopted this "civilized" means ofsettle
ment ofinternational disputes under the able guidance ofits found
ing fathers. Within five years ofthe coming into existence ofthe
United States Govern.ment,it found occasIon to employ arbitration
for the settlement of serious differences with the mother country
(the United Kingdom) resulting from the independence of the for
mer colonies underthefamous JayTreaty of1794;2Afterthesuccess
ful completion. of arbitral proceedings under the Jay Treaty,
1J.B. Scott, The Hague Peace Conferencesof1899and1907,Baltimore, 1909,
p. 195 ff;; SOJ'ereign Suites andSuits, New York; 1925, p. 107 ff.; J.B. Moore,
"International Arbitration: Historical Notes and Projects," Collected Papers,
Vol. 2, New Haven, 1944, p. 28ff.;WilliamL.'Penfield, "InternationalArbitra
tion," American JournalofInternational Law, Vol. 2,Washington D.C.,1907,
p. 335 ff.;J.H. Ralston, International Arbitration from Athens to Locarno,
California,1929, p. 153ff.
2For aninterestingaccount ofearlyarbitrations, seePercyE. Corbett,Law in
Diplomacy, Princeton, 1959, p. 140 ff.; The SettlementofCanadian-American
Disputes,NewHaven, 1937.
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STUDIES IN INTERNATIONAL ADJUDICATION
THE UNITED STATESAND THE WORLD COURT ~
arbitration was, except in the extraordinary train of events that
the 1899 Hague Peace Conference, called at the invitation of the
led up to the war of 1812, almost habitually employed by the
Czar of Russia to consider "themost effective means of ensuring
United States and Great Britain; and the submission by them of
to all peoples the benefits of a real and lasting peace," Secretary
the so-called "Alabama Claims" to the Geneva tribunal in 1872
ofState John Hay instructed the American delegation "to propose,
showed the nations that arbitration had no limits which goodwill
at an opportune moment, the plan for an international tribunal,
and mutual desires might notovercome. This arbitration gave a
hereunto attached...and to use their influence in the conference
great impetus to the practice of international arbitration and, in
in the most effective manner possibleto procuretheadoption ofits
the three decades following 1872, arbitral tribunalsfunctioned with
substance or of resolutions directed to the same end." This, Hay
great success in almost a hundred cases.3 The United States was
toldthem, was in accordance with the "long-continued and wide
one ofthe most frequent participants in these cases.4
spread interest among the people ofthe United States."? Few other
States, however, were prepared to go that far and they soon found
AMERICA AND THE ESTABLISHMENT OF THE PERMANENT
themselves in a deadlock on the method ofelectingjudges. What
COURT OF INTERNATIONAL JUSTICE
resulted from their deliberations was a permanent court in name
only. A Permanent Court of Arbitration came to be established
Tn spite ofall this enthusiasm, it was not long before the'drawbacks if
i which, as has been stressed time and again, was neither permanen~
of arbitration came to be seriously felt. The temporary character 1r
:l nor a court, but merely a list of possible arbitrators, varying from
of an arbitral tribunal, the difficulties in its constitution, and the
'I 75 to 150 names, from which contending States might set up an
close affinity of arbitral procedure to diplomacy were all very II
unsatisfactory.5 It was due to these defects that an international i ad hoc arbitration tribunal, ifthey so chose.s
Nevertheless, thisbodyfacilitated theselection of trained person~
court with a permanent body of judges and fixed procedure was
nel, with considerable prestige behind them, if the parties desired
thought essential. The United States again led the way.6 At
to settle their controversies through arbitration. This was some,..
8M.D. Hudson, International TribunalS-Past and Future, Washington D.C., thing. It was a beginning. When the Second Hague Peace Con,..
1944, p. 5.
ference met in 1907, it stimulated the United States Government to
'There is a marked difference of opinion amongst writers about the exact
make another effort to establish a permanent world court. In his
numberofarbitrationcasesuptotheendofthenineteenthcenturyandthenumber
in which the United States participated. Thus, according to Darby'slist, out of Ii, oft-repeated classic instructions to the American delegation, Secre
476 instances of arbitration between 1794 and 1900, the United States was a tary ofState Elihu Root said:
partyin96cases;LaFontainelists176casesduringthisperiod,outofwhichthe
."
UnitedStatesparticipatedin56cases; A.M. StuytcreditstheUnitedStateswith r~
64casesin his list of238 cases; andinJ.B. Moore'scomparativelyconservative decided by that alien court, led to a strong feeling for asimilar tribunal in the
list of 136 arbitrations the United States figures 57 times. Darby, International international field. The two Houses of the Massachusetts legislature passed
Tribunals, London, 1904; La Fontaine, "Histoirie Sommaire et Chronologique ~~! resolutions for the establishment ofan internationaltribunal in 1832and 1844,
des ArbitragesInternationaux 0794-1900)," Revue de DroitInternational et de 21 andthelegislatureofVermontcommendedtheideain1852.In1872aresolution
legislation Comparee, Deuxieme Serie, Brussels, Vol. 4, 1902, p. 350; A. M. was introduced in the Senate proposing an international tribunal with such
Stuyt, Survey ofInternational Arbitrations. 1794-1938, The Hague, 1939, p. 455 authorityastomakeitacompletesubstituteforwar.D.F.Fleming,UnitedStates
If.;J. B. Moore, "A Hundred Years of American Diplomacy," Harvard Law andthe World Court, NewYork,1945,pp. 15"7;RayomondB.Fosdick,"AWay
Review,Harvard University, Cambridge, Mass, Vol. 14, 1900-1901, pp. 182-3. to Escapefrom War," International Conciliation, No. 277, NewYork, February
"Elihu Root, Instructions to the American Delegatesto the Hague Peace Con 1932, p. 60; StephenBolles,The AmericanStruggle for Peace, Wisconsin, 1926,
ferences (J. B. Scott, ed.), NewYork, 1916, pp. 79-80. p. 16. For resolutions regarding the creation of a world court passed by the
'The demonstrated success of the American Supreme Court, after a great nationalparliamentsofothercountries,seeHudson, n. 3,p. 6.
hostilityin the early years'ofthe Republic whenmany Americans regarded the 'ElihuRoot,n.5,pp. 8-9.
Court as "foreign" and some of the States protested against their cases 'being 8Hudson, Permanent Court of International Justice,1920-1942, New York,
1943, p. 10.
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'4 STUDIESIN INTERNATIONAL ADJUDICATION THE UNITED STATES AND THEWO;RLD COURT 5
Itshould be your effortto bringabout in the Second COhference conclusion oftreaties,12 never let it go far ahead. Although much,
a development of the Hague tribunal into a permanent tribunal I ofthe stimulus and brains foran arbitration movement during tbe
'composed of judges who are judicial officers and.nothing else, nineteenth and to.e beginning'ofthe present century were supplied.
who are paid adequate salaries, who have no othetoccupation, by individual American statesmen and publicists, the Senate consis
and will devote iheirentire time to the trial and decision of :i tently refused to permit any appreciable advance in this field. The
international causes by judicial inethodsand undetasense of 150 years ofhistory of the American.participation,in the'interna~
jildicialresponsibility.... The Court should be of such dignity, tional judicial process is an interesting and instructive story of a
consideration, andrank that the bestand ablestjurists will accept bitter struggle between the Administration and the Senate, in which
appointment to it,and that the whole world will have absolute thelatterhaspracticallyalwayshadthefinalsayleavingtheAdminis
confidence initsjudgments.9 tration almost helpless and sometimes embarrassed before world
public opinion. Thus, while the United States had an excell\.'lnt
'The idea receivedWidesupport attheConference and, apartfrom record of voluntary,arbitration all through the nineteenth centqry,
,the United States,someother delegations presented plansfor the up to the turn of the century it concluded only one single arpitra
;establishment of a permanent court, though none other had come tion treaty, the. Peace Treaty of Guadalupe Hidalgo of 1848 w.ith
With specific instruCtions on the subject. Soon, however,the Mexico,l3 In 1897 theSenaterefused to ratify theOlney-Pauncefote
insurmountable problem ofthe selection ofjudges presented itself. Treaty, which had been signed after long and protracted negotia
The sman powers insisted upon having competence equal to that tions, even though it had been recommended both by President
of the great powers in the appointment of judges: If each State Cleveland and by his successor, President McKinley, and even
'were to appoint a judge'onthe basis ofabsolute equality, it would though it had been so much modified in its journey through the
:creafe a judicial assembly, not a court. In spite ofthe best efforts Senate as to become unrecognizable.14 In, 1904, when Presiden~
and valiant struggle orChoate and James Brown Scott of the Theodore Roosevelt submitted to the Senate for approval a series
American delegation, no acceptable'solution could be found and of carefully limited arbitration treaties signed with various coun~
'the Conference promulgated only a skeleton project for an Inter Iii ,tries, it amended them in such a wayas to, makesure thatno di&,
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'national Court of Arbitral Justice and recommended its accep ;~I pute could be submitted to arbitration unless that august body
ii
tance "as soon as an·agreement has been reached respecting the agreed in each case. This, said President Roosevelt, made "the
"
selection ofjudges and the constitution of the Court."lO After-the r treaties shams" and he eventually dropped them., He preferred
Conference adjourned, repeated attempts were made to establish to "abandon the whole business rather than give the impression, of
such a new court, butto,h0 effect.n trickiness and insincerity which would be produced by solemnly
promulgating a sham."15 In 1911, President Taft dared to nego~
Senate~A Hindrance
. Having failed in its attempt to establish a permanent interna IIi l2According to Art. II, Section 2, the Presidenthas "power, by and with the
';tional court, the ExecutiveDepartmentofthe UnitedStatesGovern 11, \ advice and consent of the Senate, to make Treaties, provided two-thirdsofthe
I Senatorspresentconcur."
,ment'wasforced backupon arbitration as the onlyavailable method I)'
'.:.'. lSD.P. Myers, "Arbitration and the United,States," World PeaceFoundation
\bfadvance. Even here, however, the Senate, which has under the 1..)1 Pamphlets, Vols. 6-7, Boston, 1926, pp.486-7.
',constifution a right along with the President to participate in the .!, l'For detailsofthehesitationsexpressedinacceptingevenverylimitedobliga
1':1 tions created by this treaty, see Helen M. Cory, Compulsory Arbitration of
9ElihuRoot,n. 5;pp.79.80. ~.. InternationalDisputes,NewYork,1932,pp.31-4;Myers,n. 13,p.500if.
'loProceedings ofthe Hague Peace Conferences: Conferenceof1907,NewYork. 16RooseveltinalettertoSenatorHenryCabotLodge,quotedinMyers,n. 13,
1921, Vol. II; pp.309 if., 336-54,609-13 619-23, 705, - p. 515; see also the whole story told in colourful details in D. F.Fleming,The
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llHudson,n.3, p. 8. Treaty Veto ofthe AmericanSenate, NewYork, 1930. p. 84 if.Itisimportantto
6 STUDIES IN INTERNATIONAL ADJUDICATION THE UNITED STATES AND THE WORLD COURT 7
tiate new arbitration treaties with Great Britain and France cove was fully developed. This technique, they explain, consists in
ring all disputes which were "susceptible of decision by applica thinking of every unpleasant and touchy question that might be
tion ofthe principles oflaw and equity" and dropping the thus-far Taised against the United States by other powers, voicing it again
common and crippling reservation relating to "vital interests, andagaintoraisepublicsentiments, andthendemandingincessantly
independence or honour." Butwhen the treaties got to the Senate, to secure America's position against those imaginary dangers by
in the words of the frustrated President himself, simple-looking reservations. If these alleged dangers are denied,
it is innocently asked: "Well, if there is no danger, what harm
...that august body truncated them and amended them and is there in making it clear in the treaty?" Reservations and amend
qualifiedtheminsuchawaythat theirownfathercouldnotrecog ments are finally added by a simple majority of the Senate, witha
nize them.... Sincethe treaties had reallybeenframed asmodels, clear knowledge ofthe treaty's supporters that they must command
when they came back thus crippled and maimed, they were not a two-thirds majority of the Senate on the final vote.19 Under
very useful. So I putthem onthe shelfand letthe dust accumu this two-third rule every vote against a treaty counts double.20
late on them in the hope that the Senators may change their How successfully this "technique" was used against the WorId
minds, or that the people might change the Senate; instead of Court, we shall see presently.
which theychanged me.16 It required a world war to establish in the Permanent Court of
International Justice a true world court. Though, in his first
This hostility of the Senate towards any commitment by the draft of a League of Nations Covenant, President Woodrow
United States to the peaceful settlement of disputes through Wilson made no provision for ,a world court, he respected the
arbitration continued for a long time. Between 1910 and 1927 desire ofAmerican and foreign advocates ofjudicial settlement for
some 160 arbitration and conciliation treaties were concluded, yet a court and Article 14 of the League Covenant, as finally adopted,
the United States was a party to only two; one with Liberia and provided that the "Council shall formulate and submit to the
the other with Sweden,17 .Between 1928 and 1931, the Senate did Members ofthe League for adoptionplansfortheestablishment of
agree to the conclusion of a series of arbitration treaties (twenty-' a Permanent Court of International Justice." The Council, thus
eight in all), but carefully required a special agreement to be made authorized, lost no time in inviting, on13February1920, acommit
and duly ratified in each case before submission of a dispute to tee of ten jurists, including the celebrated American jurist, Elihu
arbitration. After that, until 1945, the United States did not sign Root, the only member ofthe committee who had been selected for
any arbitration treaty.IS his wide experience and understanding of the subject, though his
It was during these struggles over the ratification of arbitration country had declined to accept the Treaty ofVersailles.21 The most
treaties with the Chief Executive, we are told by some competent important and difficult question relating to the selection of judges,
observers, that the Senate's technique of defeating peace treaties that had baffled and defeated both The Hague Conferences of
1899 and 1907, was solved by the ingenious device of Root which
hatethat, notwithstandingthisstronglanguagein 1905,PresidentRooseveltwas
he suggested on the basis ofhis experience ofthe American consti
persuaded three years later by his new Secretary of State, Elihu Root, to
tutional history. He clearly saw that the creation of the League
compromisewiththeSenateandsendthecompromisofeach proposedarbitration
to theSenatefor its approval. By1910, 22arbitrationtreaties had beenputinto had solved the problem and suggested, in his very first speech, that
forceunderthisarrangementIbid., pp. 89-90. thejudges might be elected both by the Council and by the Assem
I·QuotedinMyers, n. 13,p. 534. Forgapsinthestory, seeFleming,n. 15, pp. bly of the League by concurrent but separate votes, an ordinary
92-109.
I7Fleming, n. 15,p.273. I9Fleming,n. 6, p. 22.
'·United Nations, Systematic Survey ofTreaties for the Pacific Settlement of 2°Fleming,n. 15,p. 111.
International Disputes, LakeSuccess, 1948, Vol. 9, pp. 1199-200. 21Rootwasassistedby oneoftheablestAmericanjurists,JamesBrown·Scott.
8 STUDIES IN INTERNATIONAL ADJUDICATION THEUNITED S1;'ATESAND THE WORLD COURT 9
majority in both bodies to elect.22 The analogy whence this plan of ages," was seen realized through its establishment. Americans
drew its inspiration was that found in the United States Govern were specially happy to see the ripe fruit oftheir protracted efforts.
ment. This was, of course, the basic compromise which had en
abled the American Constitution to be formed, the largeStates.to World Court-An "American Child"
control the House of Representatives and the small States the The above history, sketchy as it is, clearly shows. that the idea
Senate. Similarly, the Council, dominated by greatpowers, and the .of a world court not only originated from the United States but
Assembly, where small States were in a heavy majority, would each its spokesmen have always been in the forefront for the establish
be in a position to veto the choice of the other; in this way both ment of such a court. Edward W. Bok, leading Philadelphia
the large and small States would collaborate on an equal footing publisher, could therefore hardly be accused of exaggeration when
in the selection ofthe judges.23 This plan, which he elaborated in he declared in 192~:
collaboration with Lord Phillimore, came to be finally adopted.
The major problem relating to the election ofjudges having been The World Court is essentially our idea. We proclaimed it {or'
solved, it was not difficult for the Committee to devise other years. We argued for it; we labored for it and.finally it workec,l
provisions regarding the organization of the Court. The.matured out, very largely, by the best American brains. Itis ofAmerican
Statute,with someslightmodifications, passed throughthe ordeal of origin. It came into world consciousness because of American
iii examinationbyboththe Counciland the Assembly and finally came initiative; it is American in its conception and in its reflection of
,
1[.: tobe unanimously accepted by thelatterbodyon13December1920. Ol,lr strong national beliefin courts ofjustice.27
i'1l',l Itwas also declared by the Assembly that the Statute of the Court
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'!I would be submitted to theMembers of the League for adoptionin Americans are reasonably proud of this fact and they are right
the form ofa separate Protocol, and as soon as the Protocol had in declaring that "ifanything underthe sun is Yankee all thr<mgh,
.""1I' been signed and ratified by a majority of the .Members of the it is the principle oLa world court."28 The relation of the United
:111 League, the Statute would come into force. Thesaid Protocol was States to the World·Court "is nothing less than that of parent tp
WI also made openfor signature by the States mentionedin the Annex child."29 Yet it is a sad commentarythat this parent ofthe World
lili
to the Covenant.24 As specifically explained in the Assembly, the Court did never or perhaps could never adopt its "child" whole
III
II object of the latter provision was to permit the United States to heartedly.
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:::! "adhere to.the Statute.'~25
i'li The Protocol of the Permanent Court of International Justice American "Child" Presented to Americafor Adoption
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opened for signature on 16 December 1920, and it became opera Almost two full years after they were communicated to the
;11 tive on 1 September 1921, by signatures and ratifications· by a United States,30 on 24 February 1923, President Harding presented
ill
!It majority ofthe Members of the League.26 Eleven judges, including the 1920 Protocol and the accompanying Statuteto the Senate for
an American, John Bassett Moore, and four deputy judges were its advice and sought its consent to accession by the United States
""I
II elected on 14 September 1921, and the new Court was formally on the basis of four "conditions and understandings" carefully
III inaugurated atThe Hague on 15 February 1922. The inauguration drawn by Secretary Hughes in an attachedJetter of 17 February
'I!
ie ofthe WorldCourtwas hailed as a great achievement and a "dream 2'AS. Bustamante,The WorldCourt, New York, 1925, Introduction, p. ix.
II,
22SeeProces-verbaux oftheProceedingsoftheCommitteeofJurists appointedto 26Bolles,n. 6, p. )9.
i:l, drafttheStatuteofthePermanent CourtofInternationalJustice,TheHague, 1920, 2PJamesBrownScott,The Relationofthe UnitedStatesto thePermanent Court
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p.109. ofInternational Justice, New York, 1923.
I [ 23Ibid., pp. 389-90; seealso Fleming, n. 6, p. 37. 30H.BarrettLearned,"TheAttitudeoftheSenateoftheUnitedStatestowardthe
II 2I1topenedtheProtocoltosignaturebyEcuador, theHedjaz,and theUSA. PermanentCourt ofInternationalJustice,"ProceedingsofthePacificCoastBranch
25Hudson,n. 8,p.124. 2"Ihid.,p.128. oftheAmericanHistorical Association1928, San Marino, California,pp.46-7..
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10 STUDIESIN INTERNATIONAL ADJUDICATION THE UNITED STATES AND THE WORLD COURT 11
1923. These conditions were, first, that such adhesion would not 3 December 1924, 4 March1925,and8 December1925. Apart from
be taken to involve any legal relation on the part of the United the Executive, the national opinionwas almost unanimousinfavour
States to the League of Nations or assumption of any obligations ofthe Court. Both the party platforms in 1924 endorsed the Court.
under the Covenant; secondly, that the United States would be The House of Representatives voted overwhelmingly (303 to 28)
permitted to participate on an equal level with the Members ofthe for adherence on 3 March 1925. All the most powerful national
League in the election of judges; thirdly, that the United States organizations in the country advocated acceptance ofthe Protocol.
would pay a fair share ofthe expenses ofthe Court as determined Scores ofreligious bodies and most ofthe business and professional
by the Congress ofthe United States; and, fourthly, thattheStatute bodies passed pro-Court resolutions. Of 1,042 leading daily news
of the Court would not be amended without the consent of the papers in 1925, 865 (or 83 per cent) expressed themselves in favour
United States.31 Senator Swanson introduced a resolution in the ofadherence.34
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Senate on 5 May 1924 for giving necessary "advice and consent" All this support, however, did not influence the opponents of the
·to the President for America's adherence to the Protocol with the Court. But the public pressure could no longer be ignored. Ulti
four reservations mentioned in Hughes' letter. Three moreresolu mately,in thespringof1924, on 30April and 1May, a sub-commit
tions were introduced on the subject.32 tee ofthe Committee on Foreign Relations afforded open hearings
The Senate Committee- on Foreign Relations, to which this to some fifty different speakers. During the two days' hearings
proposal came to be referred, promptly termed the' Permanent there was not a note of opposition sounded; most ofthe speakers
Court of International Justice a "League Court." Though the were friendly to Americn adherence. But all these hearings had
legal position ofthe Court was independent ofthe League and was hardly any effect on the Committee and were held "merely to let
based, as we have seen, on the Protocol of Signature which was the pro-Court people talk."35 Near the end ofMay, the Committee
·drawn up in 1920, the intimate relation of the Court with the on Foreign Relations presented two reports, a majority report on
·League could hardly be denied. The judges of the Court had to 26 May and a minority report on 31 May. The former proposed
be elected by the Council and the Assemblyofthe League, and the radical amendments to the. Statute with unconcealed enmity to
expenses of the Court were to be borne by the League. In fact the-League of Nations. The minority report, on the other hand,
the Courtcould not have been createdin the absence ofthe League. offered by Senator Swanson, was in essential accord with the
The Court was certainly "a useful and necessary adjunct of the Hughes-Harding proposals.
League."33 In spite ofall this, however, the Couhwas an absolutely In his message of 3 December 1924, President Coolidge injected
independent and judicial body and the independence ofjudges was a new recommendation into his advocacy of the Court issue. He
not questioned anywhere outside of the United States. But an proposed a reservation in opposition to the advisory function of
intense hatred and distrust ofthe League led the Senate Committee the Court-a function authorized by Article 14 of the Covenant.
to adopt an extreme and hostile attitude towards the Court. On 4 March 1925, in his inaugural address, President Coolidge
President Harding continued to speak for the Court until his again advocated adherence to the Court and on the next day
death in August 1923, and on 6 December 1923 President Coolidge Senator' Swanson re-introduced his resolution for United States
commended the proposal to the Senate. He repeated the plea on adherence with an addition incorporating President Coolidge's
suggestion. On 13 March 1925, the Senate voted at last to
31P.C. Jessup, "The United States and the Permanent Court ofInternational consider the Swanson resolution on 17 December 1925, two
Justice," International Conciliation, No. 273, October 1931; Appendix III, pp.
626-33. "'Forty-four (or 11per cent) were opposed and sixty-two (or 16percent) had
3'QuincyWright,"TheUnitedStatesandthePermanentCourtofTnternational taken nostand. See Fleming, n.6, pp. 49-51; see also Wright,,n. 32, pp.329-31;
Justice," International Conciliation, No. 232, September 1927, p. 329. and Learneq-, n. 30,pD. 47-8.
.33Fleming,n. 6, p.42;seealsoHudson,n.8,pp. 111-2,149,151,185-6. 35Fleming, n. 6, p. 46; Learned, n. 30, pp. 48-9.
12 STUDIESIN INTERNATIONAL ADJUDICATION THEUNITEDSTATESAND THEWORLO'COURT 13
years and ten months after the Harding-Hughes proposaVlO 'Of'destructive reservations which would ,kill the measure under
The "irreconcilables" and the opponents were, however, still the guise of doing good:
there preparing themselves for the next fight.37 The impotence of Every conceivable objection,. reasonable or unreasonable, was
the American people to influence them was described by Homer raised against the Court in the Senate debate which continued
Cummings,laterAttorney-GeneraloftheUnitedStates,inanaddress through over 300 pages of the Congressional record from 17
on 3 December 1925, at Yale University,in biting terms.. Raising December 1925 to25January 1926, when a filibusterhavingappear
the question as to "what stands in the way'of our entry into the ed, the "cloture" rule was put in effect by a two-thirds vote.39
World Court," Cummings said: :Callingoutthe names ofthe WorId Courtjudges was a repeatedly
used device of the opposition. Senator Fernald protested against
Not the American people; not the executive or judicial branch joining a-court composed ofelevenjudges, ten ofwhose names no
of our governmetit; not the House of Representatives; not even American could correctly pronounce. Of the eleven judges, just
the Senate of the United States; but only.a small, belligerent. dne was an American,and of deputy judges "not an'Amerkan!
irreconcilable group ofsenators who hold a strategic position on Of the four not a single Americanr'40 Senator James A. .Reed
the Committee on Foreign Relations and whose pride of opinion declared the League, ofwhich the Court was after all a part, to be
!
is more important to them than the peace ofthe world. They a hostile alliance against the United States and to recognize it
fiJI
take counsel of their fears and prejudices. They convert the would mean to "combine against ourselves ...the force of all the
Senate chamber into a veritable clinic of political obsessions 'fifty-five nations that make up the League." "This, Sir, is mad
'fll
and mental complexes. They cling with pestilential persistence ~ ness. This, Sir, I unhesitatingly say, is disloyalty," said ReedY
to the husk of an idea from which long since all substance has But the greatestweaponthat the opponents got was the provision
departed.... Tegarding advisory opinions about which, as we have Been above,
Senator Swanson had already added the fifth reservation providing
They would tear the Court Statute totattersandthrowitsfrag" that the United States would not be bound by an advisoryopinion
mentsin the face ofthe civilized world ifthey could.... Under 'Ofthe Court unless rendered pursuant to a request in which the
the shelter ofthe constitutional requirement qfatwo-thirdsvote. United States expresslyjoined. Although the Court, inits practice,
aided by their control of the Committee on Foreign Relations~ took ari extremely conservative attitude toward advisory opinions
and abetted by the archaic rules ofthe Senate, they will seekto and decided to follow closely the procedure prescribedfor conten
kill the project by protracted debate and byconfusingand nulli tiouscases,42 the opposition refused to trust the good sense ofthe
fying amendments and reservations.38 Court and insisted that nothing must be left to chance in the future
-'and proposed to stiffen reservation five. In thismatter, they got a
Up to this time the discussion of the Court did not rise to the powerful support from no less an authority than John Bassett
level of argument. The opponents so far had been trying to
"Wright,n. 32,p. 331.
put every obstruction indirectly. When the time for Senate 40CongressionalRecord, Vol. 67, Part 2, p. 2048.
consideration of the Court issue came they prepared themselves ulbid.• Part 3. Seethe wholedebate discussed in detail in Fleming, n. 15, pp.
for the real·fight. They knew well though that the people were 192-212;Fleming,n. 6, p. 56if.
42Thus,intheEasternCareliadisputebetweenFinlandandSovietRussia,the
so overwhelmingly for the Court that it could not be defeated out
Court decJined, on 23 April 1923, to give an advisory opinion, because.Russia
right. They were well aware, however, ofthe never-failing strategy
hadrefused to give its consent to the jurisdiction of the Court. See Hudson,
s8Wright, n. 32, p. 330. WorldCourt Reports, Vol.I, p. 204ff. It was established then that no secret
87Learned, n. 30, p. 50. <>pinions would begiven and no State'sinterestsprejudic;edbyan opiniongiven
sBQuotedbyFleming,n.6, pp.48-9. withoutitsconsent. SeeFleming, n. 6, p. 54.