Evening star. [volume] (Washington, D.C.) 1854-1972, 1925-12-12
BY HERBERT f. WRIGHT.

I
Professor of Political Science. Georgetown
University.
The structures of Prof. Manley O.
Hudson, sometime official of the
| League of Nations and now Bemls
| professor of international law at the
! Harvard Law School. upon Senator
/ Borah's declaration Of intention to do
| everything possible TO divorce the
Permanent Court of International
Justice from the League Of Nations,
| warrant a close scrutiny, If for no
| other reason, because they come from
| such a distinguished source and are
| leveled at such IL distinguished object
| as the statement of the chairman or
| the Senate committee on foreign re-
| lationS.
! Prof Hudson enumerates three
| ways in which the court and the
! league are related: % the judges are
| elected by the council and the assem-
| bly, of the league; 90 the budget OF
| the court forms a part OF the budget
| of the league, and 90 the court may
give advisory opinions on the request
| of the council or assembly" To quote
| his words. cit may be useful to IN
| quire why the enforcement is to be
attempted, whether it is possible and
/ what it would mean"
whole generation of effort was broken
| in 1920, when Mr.. Root proposed that
| the difficulties of agreeing on a meth
| cd of electing the judges be escaped
! by utilizing the council and assembly
| OF the League of Nations for this
purpose" 1t must be remembered,
! however. that the advisory commit
| tee of jurists, of which Mr.. Root was
a member, was acting upon the in
vitation of the council of the league,
| that its secretary was the undersecre-
| tary general of the league and that
| its report was made to the council
of the league. 1t was perfectly nat
| ural, therefore, for this committee to
conceive its purpose to be the elab-
Grafton of a draft Of a court primarily
for the members of the league. Ac-
cordingly, 1t proposed that the court
shall be open of right to the states
mentioned in the annex to the COW
enant,'' which We're As in number, al
though other states may have &C
cess 10 it, upon such conditions as
shall be determined by the council
in accordance with article II of the
covenant" Had this not been their
purpose they would have suggested a
scheme for the election of judges
which would have been entirely in
dependent of the league, yet equally
effective and satisfactory. Several
such plans have been suggested sub
seuuently. But it was the business
of the advisory committee. not to
plan a World Court accessible to all
states upon mere ratification, but TO
plan a court for the members of the
league and such other states as the
council of the league might care TO
approve.
4 World Court.
Prof. Hudson makes much of the
fact that As states have now signed
the protocol of the statute of the
court, with the inference that the
United States is one of a small mi
nority. But there is a vast difference
between signature and ratification.
The United States signed the cove
nant of the league. but it has consist
emily refused to ratify it. SO it is with
the protocol of the courts statute.
Only 36 states have ratified 1t. This
means that out of the 67 states in
the family of nations considered
worthy by the court of receiving COM
municationS concerning its activities
SO, or 81 per cent, have agreed TO use
the court if it pleases them SO to do in
a given instance. Only II. or 20 per
cent, have ratified the optional clause
concerning compulsory Jurisdiction or
consider it in force. In other words,
75 per cent Including all the larger
and more important states) cannot be
hailed into court in a. given case against
it's will. VIII the criminal state, any
more than the criminal individual, be
inclined to submit his case voluntarily
to an impartial tribunal? The answer
is that only 20 per cent of the 81
states are adherents to the idea Of a
Iy1f aN-rN not Ifr11
Court of Justice.
Again. not only the So mentioned
above as ratifiers of the courts proto-
col, or 81 per cent of the 67 states,
participate in the election of judges,
but the entire 30 members of the
league or 81 per cent of the 81 states,
although. unless the court is a league
organ, there is no more reason for the
10 league members who have not rati-
fed the protocol. or 20 per cent Of the
67 states, to participate in the election
of the judges than there is for the ~
non-members of the league, or the re-
naming IS per cent of the 67 .com.
prising the family Of nations.
Prof. Hudson, moreover, has set up
a STRAW soldier when he says that
'all the other nations are satisfied
with this method" and that "Presi-
dent Harding and President Coolidge
and Secretary Hughes proposed that
the United States accept it." There is
no question here of throwing 1.-The fat
back into the fire where 1t was from
1899 to 1920" The method of election
is eminently satisfactory in principle.
1t is the courts intimate connection
with the league which is Objectionable.
Is the Court independent?
Nor does this mean holy horror of
"the thought of an American going to
Geneva If the people of the United
States desire membership in the
league, then it is entirely appropriate
for an American representative to go
to Geneva. But II is fatuous to urge
that. while the United States should
not become a member of the league,
1t should use the organs Of the league
precisely as if II were a member.
The first Harding Hughes-C Coolidge
reservation, if it means anything, i'm
plies that the court is league organ;
otherwise, if it were entirely indepenG-
ent as urged, there would be no neces-
sity of this reservation. That is why
President Coolidge, in his annual
message, significantly says that the
court appears" to be independent Of
the league. because the protocol Of
it's statute is a separate instrument.
But that the court Is, as a matter OF