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which had assumed the obligation contained in the Optional Clause for a limited period which would shortly terminate, should take the necessary steps in order to renew their undertakings. On September 25, 1925, a resolution in that sense was adopted, by which the Assembly requested "the Secretary-General of the League of Nations to draw the attention of such states to the measures to be taken, if they consider it proper, in order to renew in due course their undertakings."100 On November 4, 1925, the Austrian Government notified the Secretary-General that it desired to renew its declaration,101 and to this end would submit a proposal to the National Council.

ADMINISTRATIVE DECISIONS

The court's administrative decisions, recently published for the first time,102 contain many interesting points, of which several are significant as showing the extreme conscientiousness of the judges and their manner of work. The court has passed several times on questions of incompatibility of function, under Articles 16, 17 and 24 of the Statute; it has decided that it would be incompatible for a judge to act as a member of an institution such as the Conseil du Contentieux of the Italian Foreign Office, or to participate in negotiations even of a non-political character; but that it would not be incompatible for a judge to act as a member of a government commission for testing candidates for the diplomatic service, or to take part in an international conference concerned with the development of law, or to serve on an international conciliation commission or a mixed arbitral tribunal.103 In its consideration of cases or questions before it, the court began by entrusting a single member with the preparation of a draft opinion based on the court's deliberations, but since the first session such drafts have usually been prepared by a committee of at least three members.104 On July 26, 1922, it was decided that the judge or judges acting in that capacity should be chosen by secret ballot. In one case, it was decided that the President should ex officio be a member of the drafting committee, and in practice the Registrar has always been a member. In some cases, the general discussion among the judges has been preceded by the presentation of written notes among the judges, and recently the President has summarized the views expressed by the judges and distributed the summary before a drafting committee is set up. The judges deliver their opinions in inverse order of seniority, as in the Supreme Court of the United States.

100 Journal of the Sixth Assembly, p. 192. Cf., 41 Law Quarterly Review, 373.

101 The original Austrian declaration had been made on March 14, 1922, for a period of five years.

102 Publications of the Court, Series E, No. 1, pp. 241-272.

108 Ibid., pp. 247-8.

104 Ibid., p. 254.

AMENDMENT TO THE COURT'S RULES

The Statute of the court (Article 30) provides that the court shall frame rules for regulating its procedure. The original rules were promulgated on March 24, 1922.105 While they do not expressly reserve to the court the power of amendment, that power must reside in the court. On January 15, 1925, the court adopted the following amendment to Article 2 of the Rules which deals with precedence among the judges and their seating:

Nevertheless, the retiring President, regardless of his seniority according to the preceding provisions, shall sit on the right of the President, the Vice-President then sitting on his left. This provision, however, shall not affect other privileges and powers conferred by the Statute or Rules of Court on the Vice-President or the eldest judge.106

THE BAR OF THE COURT

The court has no bar as that term is ordinarily understood in America. It decided on February 21, 1922, that the rules should not include any restriction on the right of pleading before the court, and that any person appointed by a state to represent it may be admitted to plead in that state's behalf.107 The possibility of a requirement that such a person should be competent to appear before the highest tribunal of his own country does not seem to have been considered. In a number of cases, states have been represented by lawyers who were nationals of other states. In the Mavrommatis case brought by Greece against Great Britain, British nationals appeared for both governments. Language in itself creates some restriction, for only the English and French languages may be used before the court without special permission.

STATES TO WHICH THE COURT IS OPEN

By a resolution adopted by the Council of the League of Nations, of May 17, 1922,108 in virtue of Article 35, paragraph 2, of the Statute of the court, it was provided that the court shall be open to states not members of the League of Nations and not mentioned in the Annex to the Covenant. On June 28, 1922, the court decided that this resolution should be communicated to all states recognized de jure, and on that date it drew up a list of states for that purpose. The list was revised on June 17, 1925, and it now includes the following:109 Afghanistan, Germany, Egypt, Georgia, Iceland, Liechtenstein, San Marino, Mexico, Monaco, Russia, Free City of

105 See "The Statute and Rules of the Permanent Court of International Justice," published by the International Intermediary Institute, as a provisional substitute for Publications of the Court, Series D, No. 1. See also, Hudson, The Permanent Court of International Justice, pp. 351 ff.

106 Publications of the Court, Series E, No. 1, p. 127.

107 Publications of the Court, Series E, No. 1, p. 265.

108 League of Nations Official Journal, June, 1922, pp. 545-6.

109 Publications of the Court, Series E, No. 1, p. 260.

Danzig (transmissions through Poland), Turkey. All of these states are now notified of the institution of proceedings before the court, as well as of requests for advisory opinions. Such notice is sent as a matter of course to all members of the League of Nations, and to the United States and Ecuador as states mentioned in the Annex to the Covenant. The Hedjaz, also mentioned in the Annex, is no longer being notified, as previous communications to that state were returned to the court.110

PUBLICATIONS OF THE COURT

The publications of the court promise a significant enrichment of the literature of international jurisprudence and international law. The original plan of the publications of the court called for four series." Series A includes the judgments handed down, and six numbers in this series have appeared. Series B includes the advisory opinions, and twelve numbers in this series have appeared. Series C includes acts and documents relating to the judgments and advisory opinions, and seven numbers totalling fourteen sizable volumes have appeared. Few courts in the world publish such complete documentation relating to their work. Series D includes acts and documents concerning the organization of the court, and four numbers with three addenda have appeared.

A new Series E was inaugurated in 1925. It will include annual reports concerning the court and its activities. The establishment of these reports may be traced to a suggestion by Dr. Nansen (Norway) and to the ensuing discussion in the Fifth Assembly of the League of Nations on September 3, 1924.112 On December 8, 1924, the Secretary-General of the League of Nations asked the Council whether it wished to invite the court "to consider whether it would be prepared to forward in future, for the information of the Assembly, a report on its work." M. Hymans (Belgium) pointed out that the court "was entirely independent of the Assembly" and he intimated that any discussion of such a report would be unfortunate. The SecretaryGeneral explained that it would be communicated to the Assembly for its information only. The Council apparently, agreed upon the invitation,113 and on December 23, 1924, the Registrar was informed of this decision. On January 24, 1925, the Registrar replied that the court had decided on publishing a yearly statement concerning its activities to appear about August 15 in each year, to be distributed in the same way as others of its publications. The annual report is therefore not to be considered as being addressed to the Assembly or Council.

The first number of Series E is a résumé of the court's work from January,

110 See Publications of the Court, Series E, No. 1, p. 261.

The publications are distributed in the United States of America by the World Peace Foundation, 40 Mt. Vernon St., Boston, Massachusetts.

112 League of Nations Official Journal, Special Supplement No. 23, pp. 37-39.

League of Nations Official Journal, February, 1925, p. 124.

1922, to June 15, 1925.114 It contains a vast deal of information which was not previously readily available. Chapter I deals with the court and Registry, giving biographies of the judges, and lists of the assessors not previously published, staff regulations, instructions to the registry, the concession of diplomatic privileges in the Netherlands, and the arrangements for the court's occupation of premises in the Peace Palace. Chapter II traces the history of the Statute and Rules of Court. Chapter III sets forth the jurisdiction of the court, and lists various unsuccessful attempts by individuals to invoke the interposition of the court. Chapter IV outlines the judgments handed down by the court, and Chapter V its advisory opinions. Chapter VI gives a summary of the administrative decisions which the court has taken; the decisions relating to procedure are particularly important. Chapter VII describes the court's publications, which it now appears include a confidential bulletin intended for the judges alone. Chapter VIII gives the details of the court's finances. It appears that in 1921, the League of Nations expended 339,603.43 gold francs in organizing the court; in 1922, the total expenditure of the court was 711,649.08 Dutch florins; in 1923, 745,990.54 Dutch florins; in 1924, 580,127.35 Dutch florins. 115 Chapter IX contains an excellent and very complete bibliography, and in Chapter X is published a third addendum to Series D, No. 4, containing extracts from international agreements affecting the jurisdiction of the court. The volume will prove indispensable to students and lawyers following the work of the court, and it deserves the cordial hospitality of the profession.

114 An extract from this report was presented to the Sixth Assembly on August 20, 1925, by the Secretary General. See League of Nations Document, A. 7 (b), 1925.

115 The 1926 estimates of the court, as approved by the Sixth Assembly on September 26, 1925, total 915,838.32 Dutch florins. See League of Nations Document, C. 619. M. 201. 1925. X.

AMERICAN PARTICIPATION IN INTERNATIONAL

CONFERENCES

BY HENRY M. WRISTON

President of Lawrence College, Appleton, Wisconsin

The participation of the United States in the Opium Conference, and in the London and Paris conferences with reference to the operation of the Dawes plan, has brought forward the question of the right of the executive to participate in such conferences. Sharp criticism has been levelled at the executive on the ground that the President is without right to send representatives, either official or unofficial, to such gatherings without the prior authorization of Congress. This question has now been in the foreground of discussion intermittently for twelve years and is worthy of some analysis. The grant of power for the control of foreign affairs in the Constitution is both brief and bare. The instrument as it stands furnishes no description of the respective powers and duties of the President, the Senate and the House. Constitutional practice has developed in the course of a long contest between the executive and the legislative branches for the dominant position with reference to foreign affairs. The development has not been wholly consistent or in one direction. Though it is usually assumed that the President has gained most in the struggle, in some important respects Congress has gained power at the expense of the executive.

The field in which the legislative branch of the government has made greatest headway is in the matter of appointments. At the outset of the government the initiative of the President was complete. It was for him to determine where diplomatic representatives should be sent and what their grades should be.1 Jefferson advised Washington that the Senate could not "negative the grade" of a diplomatic appointee. A lump sum was even put at the disposal of the President from which he could determine the salaries of American diplomatic officers. It was held that diplomatic offices were derived from international law and were simply recognized by the Constitution. Consequently, there was no statute defining the duties of a consul, for example, for some years after the government was established. Nor was there a statute defining the duties of a minister. The powers and functions of American foreign representatives were defined by the law of nations as interpreted by the executive department.

The President steadily lost power in this matter. Congress soon abandoned the practice of lump sum appropriations, and the use of specific ap

1 Washington made clear his point of view in a message to the Senate, Feb. 18, 1791, with reference to sending a minister to Portugal (Am. State Papers, For. Rel. I, 127-128); for a still earlier opinion of Jefferson on the matter see Ford, ed., Writings of Jefferson, V, 161. ⚫ James Madison, Writings, ed. by G. Hunt, IX, 91-93; Opin. Att'y. Gen. XXII, 186.

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