Pending before the Senate for nearly three years is the proposal to adhere
to the protocol establishing the Permanent Court of International Justice.
A well-established line of precedents mark America's effort to effect the
establishment of it court of this nature.. We took a leading part in laying
the foundation on which it rests in the establishment of The Hague Court of
Arbitration. It is that tribunal which nominates the judges who are elected
by the Council and Assembly of the League of Nations.
The proposal submitted to the Senate was made dependent upon four
conditions, the first of which is that by supporting the court we do not
assume any obligations under the league; second, that we may participate
upon an equality with other States in the election of judges; third, that
the Congress shall determine what part of the expenses we shall bear;
fourth, that the statute creating the court shall not be amended without
out consent; and to these I have proposed an additional condition to the
effect that we are not to be bound by advisory opinions rendered without
our consent.
The court appears to be independent of the league. It is true the judges
are elected by the Assembly and Council, but they are nominated by the
Court of Arbitration, which we assisted to create and of which we are a
part. The court was created by it statute, so-called, which is really a
treaty made among some forty-eight different countries, that might properly
be called a constitution of the court. This statute provides a method by
which the judges are chosen so that when the Court of Arbitration
nominates them and the Assembly and Council of the League elect them, they
are not acting as instruments of the Court of Arbitration or instruments of
the league, but as instruments of the statute.
This will be even more apparent if our representatives sit with the members
of the council and assembly in electing the judges. It is true they are
paid through the league though not by the league, but by the countries
which are members of the league and by our country if we accept the
protocol. The judges are paid by the league only in the same sense that it
could be said United States judges are paid by the Congress. The court
derives all its authority from the statute and is so completely independent
of the league that it could go on functioning if the league were disbanded,
at least until the terms of the judges expired.
The most careful provisions are made in the statute as to the
qualifications of judges. Those who make the nominations are recommended to
consult with their highest court of justice, their law schools and
academies. The judges must be persons of high moral character, qualified to
hold the highest judicial offices in that country, or be jurisconsults of
recognized competence in international law. It must be assumed that these
requirements will continue to be carefully met, and with America joining
the countries already concerned it is difficult to comprehend how human
ingenuity could better provide for the establishment of a court which would
maintain its independence. It has to be recognized that independence is to
a considerable extent a matter of ability, character, and personality. Some
effort was made in the early beginnings to interfere with the independence
of our Supreme Court. It did not succeed because of the quality of the men
who made up that tribunal.
It does not seem that the authority to give advisory opinions interferes
with the independence of the court. Advisory opinions in and of themselves
are not harmful, but may be used in such a way as to be very beneficial
because they undertake to prevent injury rather than merely afford a remedy
after the injury has been done. As a principle that only implies that the
court shall function when proper application is made to it. Deciding the
question involved upon issues submitted for an advisory opinion does not
differ materially from deciding the question involved upon issues submitted
by contending parties. Up to the present time the court has given an
advisory opinion when it judged it had jurisdiction, and refused to give
one when it judged it did not have jurisdiction. Nothing in the work of the
court has yet been an indication that this is an impairment of its
independence or that its practice differs materially from the giving of
like opinions under the authority of the constitutions of several of our
States.
No provision of the statute seems to me to give this court any authority to
be a political rather than a judicial court. We have brought cases in this
country before our courts which, when they have been adjudged to be
political, have been thereby dismissed. It is not improbable that political
questions will be submitted to this court, but again up to the present time
the court has refused to pass on political questions and our support would
undoubtedly have a tendency to strengthen it in that refusal.
We are not proposing to subject ourselves to any compulsory jurisdiction.
If we support the court, we can never be obliged to submit any case which
involves our interests for its decision. Our appearance before it would
always be voluntary, for the purpose of presenting a case which we had
agreed might be presented. There is no more danger that others might bring
cases before the court involving our interests which we did not wish to
have brought, after we have adhered, and probably not so much, than there
would be of bringing such cases if we do not adhere. I think that we would
have the same legal or moral right to disregard such a finding in the one
case that we would in the other.
If we are going to support any court, it will not be one that we have set
up alone or which reflects only our ideals. Other nations have their
customs and their institutions, their thoughts and their methods of life.
If a court is going to be international, its composition will have to yield
to what is good in all these various elements. Neither will it be possible
to support a court which is exactly perfect, or under which we assume
absolutely no obligations. If we are seeking that opportunity, we might as
well declare that we are opposed to supporting any court. If any agreement
is made, it will be because it undertakes to set up a tribunal which can do
some of the things that other nations wish to have done. We shall not find
ourselves bearing a disproportionate share of the world's burdens by our
adherence, and we may as well remember that there is absolutely no escape
for our country from bearing its share of the world's burdens in any case.
We shall do far better service to ourselves and to others if we admit this
and discharge our duties voluntarily, than if we deny it and are forced to
meet the same obligations unwillingly.
It is difficult to imagine anything that would be more helpful to the world
than stability, tranquility and international justice. We may say that we
are contributing to these factors independently, but others less
fortunately located do not and can not make a like contribution except
through mutual cooperation. The old balance of power, mutual alliances, and
great military forces were not brought bout by any mutual dislike for
independence, but resulted from the domination of circumstances. Ultimately
they were forced on us. Like all others engaged in the war whatever we said
as a matter of fact we joined an alliance, we became a military power, we
impaired our independence. We have more at stake than any one else in
avoiding a repetition of that calamity. Wars do not, spring into existence.
They arise from small incidents and trifling irritations which can be
adjusted by an international court. We can contribute greatly to the
advancement of our ideals by joining with other nations in maintaining such
a tribunal.