condition that it will contribute toward the expenses of the court when it is a party in dispute before it.

The submission of disputes to the court is within the absolute control of the signatory or adhering Powers, except for the states who, in addition to signing the protocol, sign also the optional clause conferring compulsory jurisdiction in certain classes of cases. The general jurisdiction of the court "comprises all cases which the members refer to it", a purely voluntary act on the part of each litigant which, in the United States, would be subject to the consent of the Senate in each instance; and "all matters provided for in treaties and conventions in force" (Article 36), which clause does not apply to a nation having no treaties or conventions in force referring to the League of Nations or the court. The same observation applies to the provisions of Article 37, which states "when a treaty or convention in force provides for the reference of a matter to a tribunal to be instituted by the League of Nations the court will be such tribunal".

Chapter I of the statute contains detailed articles covering the election of the judges by the Council and Assembly of the League of Nations. No provision is made therein for the participation of non-League members in the election. Article 33 of the statute provides that "the expenses of the court shall be borne by the League of Nations in such manner as shall be decided by the Assembly upon the proposal of the Council". No provision is made for sharing these expenses by non-League members who adhere to the court, except the provision, above referred to, which takes effect only when such a party is a suitor before the court.

It appears from the foregoing that the conditions or reservations now under discussion in the United States have been suggested for reasons outside of the requirements expressly stipulated for the adherence to the court of non-League members.

The details of the negotiations between the United States Government and the League members looking to the participation of the United States in the court on terms other than those mentioned in the protocol and statute have not been made public, but President Harding, in his message to the Senate of February 24 last, stated that the consideration of plans under which the United States might adhere to the protocol had been under way for a long period. "We were unwilling to adhere unless we could participate in the selection of the judges", he said. "We could not hope to participate with an American accord if adherence involved any legal relation to the League. These conditions, there is good reason to believe, will be acceptable to the signatory Powers, though nothing definitely can be done until the United States tenders adhesion with these reservations".

In the letter of February 17 of the Secretary of State, which the President transmitted to the Senate, Mr. Hughes states that the provisions of the statute under which only members of the League of Nations are entitled to a voice in the election of judges constituted a fundamental objection to

adhesion on the part of the United States to the protocol and the acceptance of the statute of the court in its present form. The condition then drafted to permit the participation of the United States in the election of the judges was no doubt intended to place the United States on terms of equality with the other states signatories to the court protocol and thus aid in securing consent to American adherence. If now it develops that the condition has had the opposite effect and adds weight to the objection that adhesion to the court involves entry into the League of Nations, at least ad hoc, the logical course of action would seem to be to abandon the self-imposed objectionable condition and seek consent to adherence to the court according to the terms of the protocol and the statute. Certainly it cannot be successfully maintained that the United States would lose any of its dignity or self-respect by adhering to the protocol and taking advantage of the statute upon the same terms as other states non-members of the League. It is likewise as certain that states members of the League cannot object to the United States availing itself of the stipulations made and provided for by them for the adherence of non-member states.

The election of judges is doubtless an important function, but participation in it is nothing more than a step to secure an impartial, competent body of judges of the highest integrity. That such a body already exists in the present court is attested by President Harding with splendid candor and without reservation. In his St. Louis address he said of the court: "It is a true judicial tribunal. Its composition is of the highest order. None better, none freer, from selfish, partisan, national, or racial prejudices or influences could be obtained. That, to the best of my information and belief, is a fact universally admitted and acclaimed". The objects to be obtained by the United States by participating in the election of judges, including the election of a distinguished American jurist to the bench, seem therefore to have been accomplished with respect to the present court.

President Harding, in the same speech at St. Louis, said: "I care not whence the court came. Indeed, from a practical viewpoint, I consider it a matter of distinct congratulation that there is in existence a body which already has justified itself, upon its merits, by demonstration of its character and capabilities". But, he insisted that "its integrity, its independence, its complete and continuing freedom be safeguarded absolutely". This statement refers of course to future changes in the personnel or statute of the court. Safeguards of this character would be indispensable for adherence by the United States upon the conditions or reservations which have so far been proposed, but they do not assume such importance for adherence by the United States according to the simple provisions properly applicable to non-League members. For, should the United States after adhering in the latter way, submit a case to the court, and should there be at that time no American judge on the bench, the United States would have the right to appoint a judge who would participate in the

decision of that case on an equal footing with the regular judges (Article 31 of the statute). Moreover, if under the same simple form of adhesion the United States had a case for submission but lacked confidence in the court, there is, as above pointed out, no obligation to use it, and the United States might turn to the Permanent Court of Arbitration at The Hague or to a special tribunal of arbitration, to which Article I of the statute for the Permanent Court of International Justice recognizes "states are always at liberty to submit their disputes for settlement."

In the course of his St. Louis speech the President stated that he was not wedded irrevocably to any particular method and he did not assume that the readjustment which he then proposed is the best, much less the only, one. Attention is therefore called to the exact provisions made for the participation in the court of non-members of the League of Nations for possible consideration in case further compromise becomes necessary to bring together the various divided groups of public opinion sufficiently to secure the measure of political unity necessary for national action.

GEORGE A. FINCH.

CURRENT NOTES

THE ANNUAL MEETING OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW

The Seventeenth Annual Meeting of the American Society of International Law was held in Washington April 26-28, 1923. The attendance at the four sessions held on Thursday and Friday evenings, and Friday and Saturday mornings was probably the largest in the history of the Society. The Willard Room at the New Willard Hotel, was seated to capacity at both evening sessions, and on Friday evening every available foot of standing room space was also occupied.

The Honorable Elihu Root, the first and only President of the Society, for the seventeenth consecutive time opened the meeting and delivered a notable address. He also presided in person at the sessions on Friday morning and evening.

As the subject of his presidential address Mr. Root chose "The Permanent Court of International Justice", which was likewise the subject of the address of the Secretary of State, the Honorable Charles E. Hughes, on Friday evening. Both speeches were forcible arguments in favor of the adherence of the United States to the protocol establishing the Permanent Court of International Justice upon the conditions that the United States shall be permitted to participate in the election of the judges and shall pay its share of the expenses of the Court. It would be presumptuous to attempt to produce an adequate summary of the closely reasoned arguments of two such noted lawyers as Mr. Root and Mr. Hughes. It will suffice here to state that they urged the participation of the United States in the court, on the grounds of the traditional attitude of the American Government in favor of an international court, the encouragement which such action would lend to the cause of the peaceful settlement of international disputes, and the service which the court might render in the development of international law. In view of the objections which have been raised to adherence to the court upon the ground that President Harding's recommendation of February 24th last' would involve the United States in the League of Nations, both Mr. Root and Mr. Hughes devoted considerable portions of their addresses to refutations of the arguments upon which these objections are based. In closing his address Mr. Root said:

War cannot be outlawed by proclamation, or by resolution, or by mere agreement, or by mere force. War can be outlawed only by arraying the moral force of the civilized world in support of definite

1 Printed in the last issue of this JOURNAL, April, 1923, page 331.

rules of conduct which exclude war, and by giving to that moral force institutions through which that force may be applied to specific cases of attempted violation. One of those necessary institutions is a court by whose judgment the great multitude, who desire the peace or justice, may know what is just.

And in closing his address, the Secretary of State said:

I am in entire sympathy with efforts to codify international law and to provide conventions for its improvement. I believe in conferences for that purpose. However the process of codifying, clarifying, and improving international law is necessarily a slow one, and if we wait for a satisfactory body of law before we have a permanent court, a generation will pass before it is established. Meanwhile let us supply appropriate means for the application of the law we have. Whatever else we should have, we need at once a Permanent Court of International Justice. No plan to promote peace can dispense with it.

After the presidential address of Mr. Root on Thursday evening, the question of national jurisdiction within and without the three-mile limit was discussed by Professor Philip Marshall Brown of Princeton University, and Honorable Fred K. Nielsen, formerly Solicitor for the State Department.

Professor Brown reviewed the authorities on the subject of marginal waters, and concluded that "except where expressly fixed by treaties, the three-mile limit is not recognized by the law of nations or by practice as a fixed absolute limit of maritime jurisdiction applicable alike to all situations;" that "every nation has reserved the right of self-defence to ward off threats against its safety and general welfare;" and that "the United States is free under international law to exercise this right of protective jurisdiction . . . within a moderate distance even outside its territorial waters".

Mr. Nielsen said that the jurisdiction of a nation is exclusive within the three-mile limit, subject to such modifications as may be provided by treaty or accorded by comity, but he maintained that until the present three-mile rule is modified by agreement national jurisdiction did not extend beyond it, except in a few recognized cases such as punishment for piracy, hot pursuit of a crime committed or commenced within territorial jurisdiction, and the exercise of belligerent rights in time of war.

Following the speech of the Secretary of State on Thursday evening, Professor Lindsay Rogers, of Columbia University, discussed the relation of the Armistice to the Treaty of Versailles. President Wilson's Fourteen Points used as the basis of the armistice agreement, Professor Rogers stated, were war aims as much as peace terms, and were meant to satisfy and inspire armies and peoples, both allied and enemy. Some of them were frankly idealistic and were useful only in influencing the spirit of the Peace Conference, the diplomacy of which he said was by formula-acceptance in principle but negation in detail. "The Treaty itself was nothing but a gigantic formula" embodying "agreements on paper and disagreements in