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The PRESIDENT. It was the original form of article 10; yes.
The CHAIRMAN. I was about to ask in regard to article 10, as the essence of it appears in article 2 of the draft which you sent, whether that was in the British plan—the Smuts plan-or the other plans ?
Of course if there are no drafts of these other plans, we can not get them.
The PRESIDENT, I am very sorry, Senator. I thought I had them, but I have not.
The CHAIRMAN. Mr. Lansing, the Secretary of State, testified before us the other day that he had prepared a set of resolutions covering the points in the league, which was submitted to the American commission. You saw that draft?
The PRESIDENT. Yes.
The CHAIRMAN. Mr. President, I have no prepared set of questions, but there are one or two that I wish to ask, and will go to an entirely different subject in my next question. I desire to ask purely for information. Is it intended that the United States shall receive any part of the reparation fund which is in the hands of the reparation commission ?
The PRESIDENT. I left that question open, Senator, because I did not feel that I had any final right to decide it. Upon the basis that was set up in the reparation clauses the portion that the United States would receive would be very small at best, and my own judgment was frequently expressed, not as a decision but as a judgment, that we should claim nothing under those general clauses. I did that because I coveted the moral advantage that that would give us in the counsels of the world.
Senator McCUMBER. Did that mean we would claim nothing for the sinking of the Lusitania?
The PRESIDENT. Oh, no. That did not cover questions of that sort at all.
The CHAIRMAN. I understood that prewar claims were not covered by that reparation clause.
The PRESIDENT. That is correct.
The CHAIRMAN. I asked that question because I desired to know whether under the reparation commission there was anything expected to come to us.
The PRESIDENT. As I say, that remains to be decided.
The CHAIRMAN. Going now onto another question, as I understand the treaty the overseas possessions of Germany are all made over to the five principal allied and associated powers, who apparently, as far as the treaty goes, have power to make disposition of them, I suppose by way of mandate or otherwise. Among those Overseas possessions are the Ladrone Islands, except Guam, the Carolines, and, I think, the Marshall Islands. Has there been any recommendation made by our naval authorities in regard to the importance of our having one island there, not for territorial purposes, but for naval purposes?
The PRESIDENT. There was a paper on that subject, Senator, which has been published. I only partially remember it. It was a
paper laying out the general necessities of our naval policy in the Pacific, and the necessity of having some base for communication upon those islands was mentioned, just in what form I do not remember. But let me say this, there is a little island which I must admit I had not heard of before. Senator WILLIAMS. The island of Yap?
The PRESIDENT. Yap. It is one of the bases and centers of cable and radio communication on the Pacific, and I made the point that the disposition, or rather the control, of that island should be reserved for the general conference which is to be held in regard to the ownership and operation of the cables. That subject is mentioned and disposed of in this treaty and that general cable conference is to be held.
The CHAIRMAN. I had understood, or I had heard the report, that our General Board of the Navy Department and our Chief of Operations, had recommended that we should have a footing there, primarily in order to secure cable communications.
The PRÉSIDENT. I think you are right, sir.
The CHAIRMAN. That we were likely to be cut off from cable communication—that is, that the cables were likely to pass entirely into other hands—unless we had some station there, and it seemed to me a matter of such importance that I asked the question.
I wish to ask this further question: There was a secret treaty between England and Japan in regard to Shantung; and in the correspondence with the British ambassador at Tokyo, when announcing the acquiescence of Great Britain in Japan's having the German rights in Shantung, the British ambassador added:
It is, of course, understood that we are to have the islands south of the Equator and Japan to have the islands north of the Equator.
If it should seem necessary for the safety of communication for this country that we should have a cable station there, would that secret treaty interfere with it?
The PRESIDENT. I think not, sir, in view of the stipulation that I made with regard to the question of construction by this cable convention. That note of the British ambassador was a part of the diplomatic correspondence covering that subject.
The CHAIRMAN. That was what I understood.
Senator Moses. Was the stipulation that that should be reserved for the consideration of the cable conference a formally signed protocol ?
The PRESIDENT. No; it was not a formally signed protocol, but we had a prolonged and interesting discussion on the subject, and nobody has any doubt as to what was agreed upon.
The CHAIRMAN. I asked the question because it seemed to me a matter of great importance.
The PRESIDENT. Yes; it is.
The CHAIRMAN. As a matter of self-protection, it seemed on the face of it that the treaty would give the five principal allied and associated powers the authority to make such disposition as they saw fit of those islands, but I did not know whether the secret treaty would thwart that purpose. I have no further questions to ask, Mr. President.
Senator BORAH. Mr. President, if no one else desires to ask a question, I want, so far as I am individually concerned, to get a little clearer information with reference to the withdrawal clause in the league covenant. Who passes upon the question of the fulfillment of our international obligations, upon the question whether a nation has fulfilled its international obligations?
The PRESIDENT. Nobody.
Senator BORAh. Then if a country should give notice of withdrawal, it would be the sole judge of whether or not it had fulfilled its international obligations-its covenants—to the league?
The PRESIDENT. That is as I understand it. The only restraining influence would be the public opinion of the world.
Senator BORAH. Precisely; but if the United States should conceive that it had fulfilled its obligations, that question could not be referred to the council in any way, or the council could not be called into action.
The PRESIDENT. No.
Senator BORAH. Then, as I understand, when the notice is given, the right to withdraw is unconditional ?
The PRESIDENT. Well, when the notice is given it is conditional on the faith of the conscience of the withdrawing nation at the close of the two-year period.
Senator BORAH. Precisely; but it is unconditional so far as the legal right or the moral right is concerned.
The PRESIDENT. That is my interpretation.
The PRESIDENT. Oh, no.
The PRESIDENT. There might be a moral obligation if that suggestion had weight, Senator, but there is no other obligation.
Senator BORAH. Any moral obligation which the United States would feel, would be one arising from its own sense of obligation ?
The PRESIDENT. Oh, certainly.
Senator BORAH. And not by reason of any suggestion by the council ?
The PRESIDENT. Certainly.
Senator BORAH. Then the idea which has prevailed in some quarters that the council would pass upon such obligation is an erroneous one, from your standpoint ?
The PRESIDENT. Yes; entirely.
Senator BORAH. And as I understand, of course, you are expressing the view which was entertained by the commission which drew the league?
The PRESIDENT. I am confident that that was the view. That view was not formulated, you understand, but I am confident that that was the view.
Senator McCUMBER. May I ask a question right here? Would there be any objection, then, to a reservation declaring that to be the understanding of the force of this section?
The PRESIDENT. Senator, as I indicated at the opening of our conference, this is my judgment about that: Only we can interpret a moral obligation. The legal obligation can be enforced by such machinery as there is to enforce it. We are therefore at liberty to in
terpret the sense in which we undertake a moral obligation. What I feel very earnestly is that it would be a mistake to embody that interpretation in the resolution of ratification, because then it would be necessary for other governments to act upon it.
Senator McCUMBER. If they all recognized at the time that this was the understanding and the construction that should be given to that portion of the treaty, would it be necessary for them to act on it again?
The PRESIDENT. I think it would, Senator.
Senator McCUMBER. Could they not accept it merely by acquiescence ?
The PRESIDENT. My experience as a lawyer was not very long; but that experience would teach me that the language of a contract is always part of the debatable matter, and I can testify that in our discussions in the commission on the league of nations we did not discuss ideas half as much as we discussed phraseologies.
Senator McCUMBER. But suppose, Mr. President, we should make a declaration of that kind, which would be in entire accord with your view of the understanding of all of the nations, and without further comment or action the nations should proceed to appoint their commissions, and to act under this treaty, would not that be a clear acquiescence in our construction ?
The PRESIDENT. Oh, it might be, Senator, but we would not know for a good many months whether they were going to act in that sense or not. There would have to be either explicit acquiescence, or the elapsing of a long enough time for us to know whether they were implicitly acquiescing or not.
Senator McCUMBER. I should suppose that when the treaty was signed, under present world conditions, all nations would proceed to act immediately under it.
The PRESIDENT. In some matters; yes.
Senator HARDING. Mr. President, assuming that your construction of the withdrawal clause is the understanding of the formulating commission, why is the language making the proviso for the fulfillment of covenants put into the article ?
The PRESIDENT. Merely as an argument to the conscience of the nations. In other words, it is a notice served on them that their colleagues will expect that at the time they withdraw they will have fulfilled their obligations.
Senator HARDING. The language hardly seems to make that implication, because it expressly says, “Provided it has fulfilled its obligations."
The PRESIDENT. Yes. Senator HARDING. If it were a matter for the nation itself to judge, that is rather a far-fetched provision, is it not?
The PRESIDENT. Well, you are illustrating my recent remark, Senator, that the phraseology is your difficulty, not the idea. The idea is undoubtedly what I have expressed.
Senator PITTMAN. Mr. President, Senator McCumber has drawn out that it is your impression that the allied and associated powers have the same opinion of the construction of these so-called indefinite articles that you have. Is that construction also known and held by Germany ?
The PRESIDENT. I have no means of knowing. Senator PITTMAN. Germany, then, has not expressed herself to the commission with regard to these mooted questions?
The PRESIDENT. No; we have no expression from Germany about the league, except the expression of her very strong desire to be admitted to it.
Senator PITTMAN. And is it your opinion that if the language of the treaty were changed in the resolution of ratification, the consent of Germany to the change would also be essential.
The PRESIDENT. Oh, undoubtedly.
The CHAIRMAN. Mr. President, in that connection-I did not mean to ask another question—I take it there is no question whatever, under international law and practice, that an amendment to the text of a treaty must be submitted to every signatory, and must receive either their assent or their dissent. I had supposed it had been the general diplomatic practice with regard to reservations—which apply only to the reserving power, and not to all the signatories, of coursethat with regard to reservations it had been the general practice that silence was regarded as acceptance and acquiesence; that there was that distinction between a textual amendment, which changed the treaty for every signatory, and a reservation, which changed it only for the reserving power. In that I may be mistaken, however.
The PRESIDENT. There is some difference of opinion among the authorities, I am informed. I have not had time to look them up myself about that; but it is clear to me that in a treaty which involves so many signatories, a series of reservations—which would ensue, undoubtedly-would very much obscure our confident opinion as to how the treaty was going to work.
Senator WILLIAMS. Mr. President, suppose for example that we adopted a reservation, as the Senator from Massachusetts calls it, and that Germany did nothing about it at all, and afterwards contended that so far as that was concerned it was new matter, to which she was never a party: Could her position be justifiably disputed ?
The PRESIDENT. No.
Senator Borah. Mr. President, with reference to article 10—you will observe that I am more interested in the league than any other feature of this discussion-in listening to the reading of your statement I got the impression that your view was that the first obligation of article 10, to wit
The members of the league undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all members of the league was simply a moral obligation.
The PRESIDENT. Yes, sir; inasmuch as there is no sanction in the treaty.
Senator BORAH. But that would be a legal obligation so far as the United States was concerned if it should enter into it; would it not?
The PRESIDENT. I would not interpret it in that way, Senator, because there is involved the element of judgment as to whether the territorial integrity or existing political independence is invaded or impaired. In other words, it is an attitude of comradeship and protection among the members of the league, which in its very nature is moral and not legal.