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Russia peremptorily refused to submit. The Court, therefore, found itself face to face with the question whether it would undertake to give an advisory opinion on a dispute between two countries where one of the countries refused to join in the submission to the Court. In other words, would the Court, whose jurisdiction of international disputes depends on the common consent of the parties, undertake to dispense with that condition, by giving to its ex parte opinion an advisory form.
This question was argued, and the Court, after full consideration, reached the conclusion, which it explained in a fully reasoned opinion, that it could not give an advisory opinion on the question submitted to it.
What was done in this case plainly shows that the Court has acted as an independent judicial body; but, when I say this, I do not want the inference to be drawn that the Court understood itself to be resisting any pressure whatsoever in the matter. There was none. The very language of the request for our advisory opinion indicated that it was originally contemplated by the Council that the Russian Government should be notified and that representations should be equally submitted by the parties.
But I desire to make a further observation. Much has been said of the relation of the Court to the League; and the statement often is made that it is the League's court, which in a certain sense is true; and that it derives its support from the funds of the League, which is undoubtedly true. But I do not know of such a thing in this world as a self-supporting court. It would place a court in a very unfortunate position to compel it to rely for its support on chance
contributions by litigants. We do not consider that our courts lack independence because they are dependent upon legislative appropriations. The Supreme Court of the United States would have to abandon its labors, if the Congress should fail to appropriate money for the salaries of the judges; but the Court, with cheerful confidence, continues to declare acts of Congress to be invalid where, in the Court's opinion, they are not consistent with the Constitution.
I have but one more word to add. At the formal opening of the Court on the 15th of February, 1922, at which various governments were represented, the League naturally was also represented. Its representative was Sir Eric Drummond, its SecretaryGeneral. Addresses were made, characterized by eloquence and deep feeling; and in the excellent speech delivered by Sir Eric Drummond the point emphasized above all others was the fact that the nations concerned were engaged in setting up a court which was to be absolutely independent and free from all control or pressure in the performance of its duties, precisely as is any national court. fraining, therefore, from expressing an opinion on the merits of the dispute in the Eastern Carelian case, the Court did not suppose that it was offending anybody, nor has it since had reason to suspect anything of the kind, as requests for advisory opinions continue to come.
THE UNITED STATES AND THE COURT
On February 24, 1923, the late President Harding addressed a Message to the Senate urging adherence by the United States to the Protocol. On the same day the matter was referred to the Committee on Foreign Relations of the Senate.
EXTRACT FROM AN ADDRESS DELIVERED BY THE LATE
PRESIDENT HARDING, AT ST. LOUIS JUNE 21, 19232
We have cultivated peace, not academically and passively merely, but in practical ways and by active endeavors. Even as Washington appended his signature to his most memorable and far-reaching declaration, a new principle had been written into the treaty of peace between Great Britain and the United States, had been sustained by the Congress at his resolute insistence, and was in full force and effect. That principle was arbitration, which was not only employed successfully at the time, but became from that moment an established policy of the republic, from which to this day there has been no departure.
Thus, clearly, by the method already operative, in substituting reason for prejudice, law for obduracy, and justice for passion, the Father of His Country bade us, no less than his contemporaries, not merely to countenance and uphold, but actively to cultivate and promote peace. It is with that high purpose in mind and at heart, men and women of America, that I advocate participation by the United States in the Permanent Court of International Justice.
Two conditions may be considered indispensable. First, that the tribunal be so constituted as to appear, and to be, in theory and in practice, in form and in substance, beyond the shadow of doubt, a world court and not a League court. Second, that the United States shall occupy a plane of perfect equality with every other power.
i For President Harding's Message and the full text of the Protocol of Signature and Statute of the Court see International Conciliation, No.186.
* Reprinted from the Commercial and Financial Chronicle, June 30, 1923.
EXTRACT FROM PRESIDENT COOLIDGE'S MESSAGE TO
CONGRESS, DECEMBER 6, 1923' Our foreign policy has always been guided by two principles. The one is the avoidance of permanent political alliances which would sacrifice our proper independence. The other is the peaceful settlement of controversies between nations. By example and by treaty we have advocated arbitration. For nearly twenty-five years we have been a member of The Hague Tribunal, and have long sought the creation of a permanent world court of justice. I am in full accord with both of these policies. I favor the establishment of such a court intended to include the whole world. That is, and has long been, an American policy.
Pending before the Senate is a proposal that this Government give its support to the Permanent Court of International Justice which is a new and somewhat different plan. This is not a partisan question. It should not assume an artificial importance. The court is merely a convenient instrument of adjustment to which we could go but to which we could not be brought. It should be discussed with entire candor not by a political but by a judicial method without pressure and without prejudice. Partisanship has no place in our foreign relations.
As I wish to see a court established and as the proposal presents the only practical plan on which many nations have ever agreed, though it may not meet every desire, I therefore commend it to the favorable consideration of the Senate with the proposed reservations clearly indicating our refusal to adhere to the League of Nations.
Reprinted from the Congressional Record, December 6, 1923, pp.
INFORMATION REGARDING THE COURT
THE PROTOCOL AND THE OPTIONAL CLAUSE'
Great Britain Bolivia
Latvia Costa Rica Liberia Cuba
Lithuania Czecho-Slovakia Luxemburg Denmark
Netherlands El Salvador New Zealand
Croats and Slovenes
i Information Section, League of Nations, Secretariat, Geneva. The Permanent Court of International Justice. November, 1923.