¹ The United States, Ecuador and the Hedjaz are the only states mentioned in the annex to the Covenant which are not members of the League of Nations. The texts of the protocol and statute are printed in this Journal, Supp., Vol. 17, pp. 55-57.

² This Journal, Vol. 17, p p . 331-343.

³ For an exposition of President Harding's attitude, see remarks of Senator Willis of Ohio, Cong. Rec., Jan. 4, 1926, Vol. 67, p. 1418.

⁴ 68th Cong., 1st Sess., Sen. Res. 29, 204, Sen. J. Res. 122 accompanied by Sen. Doc. 107, Sen. Res. 220, 233,234, also printed in Sen. Doc. 116 and Sen. Report 634. See comments of Senator Borah on the latter, Cong. Rec., Jan. 14,1926, Vol. 67, p. 2038.

⁵ See remarks by Senators Lenroot and Willis, Cong. Rec., Dec. 18,1925, Jan. 4,1926, and Jan. 14, 1926, Vol. 67, pp. 1071, 1417, 2043.

^{6 68}th Cong., 1st Sess., House Res. 258; ⁶⁸th Cong., 2nd Sess., House Con. Res. 38, House Res. 426; hearings on latter before Committee on Foreign Affairs, Jan. 21, 27, 31, 1925, and House Report 1569.

⁷ Cong. Rec., Vol. 66, p. 5413; also this Journal, Vol. 20, p. 151.

^{8 69}th Cong., 1st Sess., Sen. Res. 5, 6. See World Peace Foundation, Pamphlet Series, 1925, Vol. 8, pp. 207-216.

⁹ Cong. Rec., Vol. 67, p. 207.

¹⁰ Ibid., Vol. 67, p. 2825. Senators Walsh (Mont.), Lenroot (Wis.), and Swanson (Va.), lead the debate in behalf of the resolution, and Senators Borah (Idaho), Williams (Mo.), and Moses (N. H.), against it. Senator Pepper (Pa.) contributed most to the compromise finally adopted on the fifth reservation. Senators Blease (S. Car.) and Reed (Mo.), the only Democrats opposed to the resolution, were the main contributors to the filibuster. The full text of the resolution is printed at the end of this article, p. 24.

¹¹ The modifications of the original Swanson resolution are explained by Senator Walsh, Cong. Rec., Jan. 25, 1926, Vol. 67, p. 2679. The two understandings are copied from I Hague Convention, 1907, Malloy, Treaties, Conventions, etc., Vol. 2, p. 2247. The first was appended to I Hague Convention, 1899, and in substance to the Algeciras Convention, 1906, ibid., pp. 2032, 2183.

¹² Cong. Rec., Vol. 67, p. 1075.

¹³ Cong. Rec., Vol. 67, pp. 1245-1246.

¹⁴ Ibid., p. 2046.

¹⁵ Ibid., p. 2291.

¹⁶ Ibid., pp. 2038, 2194, 2292, 2295.

¹⁷ See Senator Pepper's interesting remarks, Jan. 18, 1926, Ibid., p. 2296.

¹⁸ Cong. Rec., Vol. 67, p. 2297.

¹⁹ Lenroot, ibid., Dec. 18, 1925, p. 1068; Walsh, Dec. 21, 1925, p. 1242; Bruce (Md.), Jan. 5, 1926, p. 1482.

²⁰ Senator Walsh later read the following from Moore, International Law and Some Current Illusions, p. 114:“ The Statute as adopted by the Assembly of the League, does not directly mention advisory opinions; but the Court, after careful consideration, reached the conclusion that there were certain clauses of the Statute which by implication incorporated the provision in Art. 14 of the Covenant on that subject.” Ibid., p. 2298. See also Moore, in Publications of the Court, Series D, No. 2, pp. 385, 512; Fachiri, Permanent Court of International Justice, p. 67; Wright, this Journal, Vol. 20, p. 459.

²¹ Senator Borah seems to have referred to De Bustamente, The World Court, p. 254, which he had read as follows:“ The Treaty of Versailles simply placed the court, for the creation of which Article 14 provides, at the disposition of the League as a consulting body. It is useless to argue whether the task is or is not compatible with the judicial function or to assert that it compromises the court's prestige and future. It is not a question of arguing about Article 14 but of applying it and these reasons are not strong enough to modify it.” Cong. Rec., p. 2287. This, however, does not say whether the authority of Art. 14 of the Covenant is direct or derivative for the court. on certain fundamentals. One is that when an advisory opinion is asked by the Council of the League embarrassment may result from the fact that it is asked, quite apart from the question of the action the court takes upon receipt of the request. In the Eastern Carelia case, for instance, there was a grave menace to the peace of Europe in the mere submission of the request for the advisory opinion; and I apprehend that if an advisory opinion were asked of the court by the Council of the League of Nations in a matter affecting the interests of the United States and in a case where we had not consented that such request should be made we should have a very disturbed condition of public opinion in this country, and the prestige of the court would be seriously affected, even if the court after consideration were to do what it did in the Eastern Carelia case and refuse to give any opinion at all. For that reason, Mr. President, I for one strongly favor a reservation which will declare it to be not within the competence of the court to give an opinion in that case, quite agreeing with the Senator from Montana that that will operate only upon the jurisdiction of the court as a legal proposition, but being also confident that it will have the practical effect of leading the Council of the League to refrain from asking any opinion in such a case of a court which would have no jurisdiction to comply with the request.

It seems to me, Mr. President, that that is the reconciliation of the controversy that has just taken place. Whether we trace the origin of the jurisdiction to give advisory opinions to the thirty-sixth article of the statute, or whether we trace it to the fourteenth article of the Covenant of the League, in either event it seems to me that the court ought, so far as we are concerned, to be deprived of its competence to respond to a request for advice in any matter where we have a direct interest unless we are of a mind to submit the question.

²² Cong. Rec., Vol. 67, pp. 2293-2294.

²³ Cong. Rec., Vol. 67, p. 2656.

²⁴ Ibid., p. 2679.

²⁵ League of Nations, Official Journal, Vol. 7, p. 829.

²⁶ League of Nations, Official Journal, Vol. 7, p. 536.

²⁷ Ibid., Vol. 7, p. 721; Monthly Summary, Vol. 6, p. 91.

²⁸ Extracts from the replies of the signatories and the other correspondence leading up to the conference were submitted to the members of the conference by the Secretary General on August 25, 1926. League of Nations, Doc. C. S. S. C. 22.

²⁹ The present writer attended the debates and utilized the Com fie rendu Uenographique (C. S. S. C./lre sess./C. R.) for the following extracts.

³⁰ Conference of States Signatories of the Protocol of Signature of the Statute of the Permanent Court of International Justice, Report by M. Pilotti, Publications of the League of Nations, 1926, V, 25. The committee consisted of the President, two vice-presidents, M. Rolin (Belgium), Sir Cecil Hurst (Great Britain), Sir George Foster (Canada), M. Fromageot (France), M. Pilotti (Italy), M. Yoshida (Japan), M. Rostworowski (Poland), M. Osusky (Czechoslovakia), M. Unden (Sweden), M. Buero (Uruguay), M. Dinichert (Switzerland).

³¹ Conference of States Signatories, etc., Final Act of the Conference, Publications of the League of Nations, 1926, V, 24. Printed in Supplement to this Journal, p. 1.

³² Remarks of M. Rolin of Belgium, Compte rendu, 1st sess., p. 9. This follows from the principle that a state cannot be bound by a treaty to which it is not a party. Roxburgh, International Conventions and Third States, 1917, p . 29; Wright, this Journal, Vol. 11, pp. 568-575.

³³ Supra, note 1.

³⁴ Remarks of M. Rolin and Sir Cecil Hurst, Compte rendu, 1st sess., pp. 10,12.

³⁵ M. Van Eysinga, Chairman, 1st sess., p . 10.

³⁶ See Wright, this Journal, Vol. 20, pp. 457-460; Compte rendu, 1st and 6th sess., and remarks of Senator Borah, Cong. Rec., Dec. 18, 1925, Vol. 67, p. 1075.

³⁷ Compte rendu , ⁶th sess., pp. 6-8, and comment of M. Osusky of Czechoslovakia thereon, ibid., p. 8.

³⁸ “ There is nothing to prevent the parties from accepting obligations and from conferring on the Council powers wider than those resulting from the strict terms of Article 15 (of the Covenant).” Advisory Opinion in the Mosul Case, Publications of the Per. Ct. of Int. Justice, Ser. B, No. 12, p. 27.“ The right of the Council of the League of Nations to make a recommendation when requested by one or several of its members is not explicitly laid down in Article 11 of the Covenant but is implied, I may say by the whole Covenant.” Viscount Ishii, Report on the Upper Silesian Question, Minutes of Extraordinary Session of the Council, Aug. 29 to Oct. 12,1921, p. 7. See also League of Nations, Official Journal, Vol. 2, pp. 982, 1221, and Wright, this Journal, Vol. 20, p. 458. The limits of this principle are discussed by the writer, this Journal, Vol. 20, pp. 277, 460. See also infra, note 51.

³⁹ Compte rendu , 1st sess., p. 13.

⁴⁰ M. Osusky of Czechoslovakia, ibid., 1st sess., pp. 13, 20.

⁴¹ M. Rolin of Belgium, ibid., 1st sess., p. 16; M. Erich of Finland, ibid., p. 18, and M. Pilotti of Italy, ibid., 2nd sess., p. 5.

⁴² M. Castberg of Norway, ibid., 2nd sess., p. 9; MM. Rolin and Pilotti seem to have come to this opinion, ibid., p. 11.

⁴³ Ibid., 5th sess., p. 19.

⁴⁴ Vattel, Le Droit des Gens, liv. ii, sec. 301, Carnegie Endowment ed, p. 213; Hyde, International Law, Vol. 2, p. 71.“ In doubtful cases that construction is to be adopted which will work the least injustice–which will put the contract on the foundation of justice and equity rather than of inequality.” Livingston, Sec. of State, to Baron Lederer, Nov. 5, 1852, Moore, Digest of International Law, Vol. 5, p. 251.“ It is a general principle of construction with respect to treaties that they shall be liberally construed so as to carry out the apparent intention of the parties and secure equality and reciprocity between them.” Field, J., in Geofroy v. Riggs, 133 TJ. S. 258, 271 (1890).

⁴⁵ The Marie Glaeser, L. R. (1914), P. 218,1 Lloyd, 107. This principle was specified in the protocol of deposit of ratifications of the African Slave Trade General Act of 1890.“ It is understood that the Powers which have ratified the general act in its entirety . . . shall not be bound toward those which shall have ratified it partially, save within the limits of the engagements incurred by the latter Powers.” Malloy, Treaties, etc., p. 1900; Miller, Reservations to Treaties, p. 99; Wright, Minnesota Law Review, Dec. 1919, pp. 25, 29; Control of Am. Foreign Relations, p. 51.

⁴⁶ Great Britain attached the understanding to the International Sanitary Convention of 1903“ that the right to give notice of termination of the present convention, as also the right of the Powers to concert concerning amendments in the text of the convention subsists, as was the case with the Convention of Venice of 1897.” The proces verbal of the deposit of ratifications of April 6,1907, says:“ The signatory Powers have made the following double declaration which is, moreover, in conformity with the stipulations contained in the Convention of Venice of March 19, 1897, viz.: 'That the contracting Powers reserve the right to agree with one another with regard to the introduction of modifications in the text of thepresent convention and that each of these Powers preserves the right to denounce the present convention, which denunciation shall not have effect except with regard to it,” (Malloy, Treaties, etc., Vol. 2, pp. 2127, 2130.) David Hunter Miller, Reservations to Treaties, p. 124, comments that a comparison of these documents“ discloses the very interesting fact that the declaration of Great Britain at signature, regarding the denunciation or modification of the convention, was adopted by all the Powers upon deposit of ratifications and thus made general in character. This is an illustration of a very important principle, namely, that a reservation made by one Power at signature may be adopted by and for others upon ratification; in other words, no Power need contract with any other on a basis different from that, as limited by a declaration, which the deposit of its instrument of ratification will accept as to the declaring Power.”

⁴⁷ Infra, note 75.

⁴⁸ M. Markovitch of the Serb-Croat-Slovene State, Compte rendu, 1st sess., p. 18,2nd sess., p. 13.

⁴⁹ Sir George Foster of Canada, Compte rendu, 1st sess., pp. 25-26, and comments thereon of Sir Cecil Hurst, ibid., 2nd sess., p. 19, and of M. Van Eysinga of Netherlands, 2nd sess., p. 15.

⁵⁰ M. Osusky, ibid., 1st sess., pp. 14, 20; M. Dinichert of Switzerland, ibid., 1st sess., p. 22; M. Buero of Uruguay, 2nd sess., pp. 6-7; M. Rolin, 2nd sess., p. 12.

⁵¹ Supra, notes 36, 38. This can not affect the rights under the old convention of states that have not ratified the new one. Thus Art. 91 of I Hague Convention 1907 provided that this convention should replace“ as between the contracting Powers ” the 1899 convention. Art. 31 of the Geneva Convention, 1906; Art. 4 of IV Hague Convention 1907 and Art. 25 of X Hague Convention 1907, provide the same and add:“ The convention of 1864 (or 1899) remains in force as between the Powers which signed it and which do not also ratify the present convention.” See Renault's report on X Hague Convention 1907, Scott, Reports of the Hague Conferences, p. 722. See also, Art. 11, Pan American Industrial Property Convention, 1910; Art. 12, Pan American Trade Mark Convention, 1910; Arts. 15, 18, Industrial Property Convention, 1911; Art. 160, Sanitary Convention, 1912; Art. 13 of Act revising Berlin (1885) and Brussels (1890) Acts, 1919; Art. 11, Liquor Traffic Convention, 1919; Art. 25 Arms Traffic Convention, 1919; Art. 31, Opium Convention, 1925. A similar provision was included in Art. 8 of the draft Slavery Convention of 1925 but was eliminated in the convention as signed in 1926 because it was thought some of the provisions of the Berlin (1885) and Brussels (1890) Acts might still be valuable even for parties to the new convention where the provisions did not conflict. See remarks of Lord Cecil, League of Nations Assembly, Sept. 25, 1926.

⁵² See remarks of Viscount Cecil in Seventh Assembly of League of Nations, 6th Plenary Meeting, Sept. 9, 1926. An annex to the report of the Secretary General to the Seventh Assembly disclosed the inadequate ratification which multilateral conventions negotiated under the League and the International Labor Office have received. The same is true of conventions negotiated under the Pan American Union.

⁵³ See remarks of M. Markovitch, M. Van Eysinga and Sir George Foster, Compte rendu, 2nd sess., p. 17.

⁵⁴ Count Rostworowski of Poland, ibid., 3rd sess., p. 2; M. Fromageot of France, p. 4; M. Rolin of Belgium, p. 9, who quoted statement of Senator Walsh, Supra, note 24; and M. Pilotti of Italy, p. 22.

⁵⁵ M. Rolin, ibid., 3rd sess., p. 12.

⁵⁶ Ibid., 3rd sess., p. 34, citing request for advisory opinion of court in Mosul case, and remarks of M. Osusky, 3rd sess., p . 40. See also Wright, this Journal, Vol. 20, p. 461, and Miller, Columbia Law Review, Vol. 26, p. 659.

⁵⁷ M. Fromageot, Compte rendu, 3rd sess., p. 28. See also M. Scialoja, of Italy, in Leagueof Nations Council, Official Journal, Feb. 1926, pp. 127-128; McNair, The Council's Request for an Advisory Opinion from the Permanent Court of International Justice, British Year Book of International Law, 1926, pp. 1-13, who thinks a request for an advisory opinion must be absolutely unanimous even when it relates to a dispute on which the Council can recommend with qualified unanimity, unless the request“ merely relates to the procedure or method to be adopted by the Council in settling the dispute.”

⁵⁸ Compte rendu, 4th sess., pp. 46-47. See also Sir Cecil Hurst, ibid., 3rd sess., p. 33.

⁵⁹ Ibid., 3rd sess., pp. 37-38.

⁶⁰ Compte rendu, 4th sess., pp. 39-42.

⁶¹ Miller, Col. Law Rev., Vol. 26, pp. 665-666; Wright, The Control of American Foreign Relations, pp. 21-40, 279, 341.

⁶² Compte rendu, 5th sess., pp. 27-29.

⁶³ Compte rendu, 5th sess., p. 5.

⁶⁴ They are called understandings rather than reservations, but to be legally effective they would have to be accepted by the other parties to the treaty. Wright, Minn. Law Rev., March, 1919, pp. 16-18; Control of American Foreign Relations, pp. 45-52.

⁶⁵ The small states, especially the Latin American states, seemed most anxious to have the United States adhere. The Pilotti committee reported:“ The greater the number of States which have acceded to the Court the greater will be the Court's authority. It is to the interest of the States which founded the Court that all the other States of the world should agree to become parties thereto even if they feel unable to become members of the League of Nations. In particular, the possibility of the accession of the United States of America, as a state mentioned in the Covenant of the League of Nations, was provided for in the Protocol of Signature of the Statute of the Court. It therefore seems quite natural that the States signatories of the Protocol, in the presence of a proposal–even a conditional proposal –by the United States of America to accede to the Court, should adopt a favorable attitude.“

⁶⁶ At the meeting of the Federated League of Nations Societies at Aberystwyth, Wales, in July, 1926, anxiety was displayed by several speakers at the possibility of weakening the League and the court's procedure. See League of Nations News, New York, August, 1926, p. 10. The Final Act says in relation to reservation 5:“ Great importance is attached by the members of the League of Nations to the value of the advisory opinions which the court may give as provided for in the Covenant. The conference is confident that the Government of the United States entertains no desire to diminish the value of such opinions in connection with the functioning of the League of Nations. Yet the terms employed in the fifth reservation are of such a nature as to lend themselves to a possible interpretation which might have that effect. The members of the League of Nations would exercise their rights in the Council and in the Assembly with full knowledge of the details of the situation which had necessitated a request for an advisory opinion, as well as with full appreciation of the responsibilities which a failure to reach a solution would involve for them under the Covenant of the League of Nations. A state which is exempt from the obligations and responsibilities of the Covenant would occupy a different position.”

⁶⁷ In regard to requests for advisory opinions where the United States is not a party, the Pilotti report said,“ The reply can only consist in a declaration by the signatory states recognizing the United States of America as enjoying equality with the states members of the League represented in the Council or the Assembly.”

⁶⁸ Compte rendu, 3rd sess., p. 12.

⁶⁹ Ibid., 3rd sess., p. 36.

⁷⁰ Ibid., 4th sess., p. 31.

⁷¹ Ibid., 5th sess., p. 19.

⁷² See League of Nations News, New York, Aug. 1926, pp. 8-10, and statement by M. van Eysinga, Compte rendu, 5th sess., p. 34.

⁷³ See report of M. Pilotti and Final Act, Supra, notes 30, 31.

⁷⁴ Supra, note 56, but see Supra, note 57.

⁷⁵ Supra, note 47.

⁷⁶ A reservation to the Hague Convention, 1907, made on deposit of ratifications by the United States, seems to have been accepted tacitly. Wright, Minn. Law Rev., 1919, p. 23; Control of American Foreign Relations, pp. 48-52; Miller, Reservations to Treaties, pp. 145; Scott, Reports to The Hague Conferences, pp. xxvii-xxviii. Some multilateral conventions expressly forbid reservations. This was true of the Declaration of Paris (1856), and of London (1909). Wright, Control of Am. For. Rel., p. 49.

⁷⁷ Wright, Minn. Law Rev., Dec. 1919, p. 21-22; Miller, Reservations to Treaties, p. 160; Malkin,“ Reservations to Multilateral Conventions,” British Year Book of International Law, 1926, p. 159.

⁷⁸ Where reservations or interpretations have not been accepted by the full ratifying authority of one party, their validity has often been questioned, as was true of diplomatic interpretations of the Treaty of Guadaloupe-Hidalgo (U. S.Mexico, 1848) and the Clayton- Bulwer Treaty (U. S.Great Britain, 1850). Wright, Minn. Law Rev., Dec. 1919, p. 22; Control of American Foreign Relations, p. 48; Miller, Reservations to Treaties, pp. 80-87. 19 Sir Cecil Hurst, Compte rendu, 6th sess., pp. 12-13.

⁷⁹ Sir Cecil Hurst, Compte rendu, 6th sess., pp. 12-13.

⁸⁰ Wright, Control of American Foreign Relations, pp. 106, 236; Crandall, Treaties, Their Making and Enforcement, pp. 117-120.

⁸¹ Final Act of the Conference, p. 7. See also par. 1, of Art. 4 of the draft protocol, and par. 8 of the Pilotti committee's report.

⁸² See remarks of Senators Pepper and Lenroot, Supra, notes 13, 24.

⁸³ This is believed to contain the essence of the following language of the court:“ It is well established in international law that no state can, without its consent, be compelled tosubmit its disputes with other states either to mediation or to arbitration, or to any other kind of pacific settlement. Such consent can be given once and for all in the form of an obligation freely undertaken, but it can, on the contrary, also be given in a special case apart from any existing obligation. The first alternative applies to the members of the League who, having accepted the Covenant, are under the obligation resulting from the provisions of this pact dealing with the pacific settlement of international disputes. As concerns states not members of the League, the situation is quite different; they are not bound by the Covenant. The submission, therefore, of a dispute between them and a member of the League for solution according to the methods provided for in the Covenant, could take place only by virtue of their consent. . . . The court is aware of the fact that it is not requested to decide a dispute, but to give an advisory opinion. This circumstance, however, does not essentially modify the above considerations. The question put to the court is not one of abstract law, but concerns directly the main point of the controversy between Finland and Russia, and can only be decided by an investigation into the facts underlying the case. Answering the question would be substantially equivalent to deciding the dispute between the parties. The court being a court of justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activities as a court.” Publication of the Per. Ct. Int. Jus., Ser. B, No. 5, pp. 27-29. In giving a decision on the claims of Costa Rica and Salvador that Nicaragua had violated their rights by concluding the Bryan Chamorro Treaty with the United States, the Central American Court of Justice seems to have neglected this principle, because the United States, whose treaty rights would clearly be effected by the decision, had not submitted to the jurisdiction. For the court's argument for assuming jurisdiction, see this Journal, Vol. 11, pp. 212, 699, and Ralston, International Arbitral Law and Procedure, 1926, pp. 149, 152. The court did, it is true, refrain from declaring the nullity of the treaty“; because that would be equivalent to adjudging and deciding respecting the rights of the other party signatory to the treaty without having heard that other party and without its having submitted to the jurisdiction of the court” (ibid., Vol. 11, pp. 228, 729), but apparently giving any decision at all did not, as suggested by the unknown jurist {Supra, note 22), prove to the interest of the court, but ended in a catastrophe for it.

⁸⁴ Apart from the second understanding attached to the Senate resolution, the Monroe Doctrine is specifically referred to in Article 21 of the Covenant. See Wright,The distinction between legal and political questions with especial reference to the Monroe Doctrine, Proc. Am. Soc. Int. Law, 1924, pp. 61-67.

⁸⁵ See arbitration treaty, United States-Great Britain, 1908. In the Wimbledon Case the Permanent Court of International Justice distinguished between Articles 62 and 63 of the Statute, both of which permit a state to intervene in proceedings, the first if it can prove to the court's satisfaction“; an interest of a legal nature,” and the second if it is a party to a treaty to be construed by the court. Presumably only interveners of the first type could stop proceedings, under the principle of the Carelia Case, by refusing to submit to the jurisdiction because under Art. 59, the second type of interveners are not bound by the construction and so their rights are unaffected unless they intervene. Publications of the Per. Ct. of Int. Jus., Ser. A, No. 1, p. 13.

⁸⁶ Supra, note, 56.

⁸⁷ Supra, note, 57.

⁸⁸ In 1800, after Napoleon had made a counter-reservation to the Senate's reservation to the treaty of amity and commerce, President Jefferson eventually decided that the treaty would have to be resubmitted to the Senate. Malloy, Treaties, etc., Vol. 1, p. 505; Hayden, The Senate and Treaties, pp. 123-124; Miller, Reservations to Treaties, pp. 13-14; Wright, Control of American Foreign Relations, p. 45; note 77.

⁸⁹ See letter of Secretary of State Hughes, Supra, note 2.

⁹⁰ Supra, notes 3, 5, 7, 10.