It has been the peculiar glory of the United States in history to be a great neutral Power and the champion of neutral rights. From the earliest days of the republic, the sentiments of her statesmen, of Washington and Hamilton no less than of Jefferson and Franklin, were whole-heartedly for peace and neutrality, for the protection of the merchant against the soldier. And throughout the nineteenth century, the world acclaimed neutrality with her, and regarded the United States as the standing exemplar of a Peace Power. It was recognized that there might indeed be excusable wars, just wars, necessary wars. But the ideal of the nineteenth century was peace. Just and necessary as his cause might be, the belligerent was an ipso facto nuisance. He must be allowed to interfere as little as possible with the peaceful affairs of the world. On any doubtful question of interference with neutral commerce, the presumption was against him. He had always been a nuisance, and he was coming to be an anachronism. As an anachronistic nuisance, the scales were heavily poised against a belligerent.

Various changes in the organization of the Permanent Court of International Justice, particularly in the arrangements for its sessions, were envisaged in the amendments to the Statute of the Court annexed to the Protocol for the Revision of the Statute, of September 14, 1929. This protocol failed to come into force in September, 1930, as planned. While it may yet come into force, that event may be postponed for several years. It would seem to require ratification by each of the forty-five states which have ratified the Protocol of Signature of December 16, 1920, as well as ratification by the United States of America. Only thirty-five states members of the League of Nations have now (May 1, 1931) ratified the protocol of September 14, 1929, and it may prove to be a difficult task to persuade the remaining eleven states to ratify promptly. Meanwhile, it has seemed desirable that the court itself should revise its rules in the direction of some of the changes which would have been effected by the amendments to the statute.

While I agree with the action taken by the Court and consider that, in view of the unsatisfactory and contradictory provisions of the special agreement by which the parties have submitted this case to the Court, it is perhaps the only course by which the Court could, under its Statute, aid the parties in arriving at a wholly satisfactory solution of their dispute, nevertheless, in view of certain language used in the order, which might be the source of doubt as to the limits of the jurisdiction of this Court and might serve as a basis of argument that it is within the competence of this Court, with the consent of the parties, to take jurisdiction of and decide purely political questions upon considerations of expediency without regard to the legal rights of the parties, I feel it incumbent upon me to make the following observations:

In my opinion the question of the competence of this Court which has been raised by the present case and a direct decision of which the Court has avoided, for the moment at least, by the making of the present order, is, from the point of view of the future of this Court and the development of the judicial settlement of international disputes, by far the most important question which has ever been brought before the Permanent Court of International Justice. I feel, therefore, that I would be derelict in my duty if I allowed the question to be passed over in silence or left any doubt as to my opinion in regard thereto.

Six years ago, under the title “ Recent Recognition Cases,” the present writer reviewed a group of British and United States court decisions dealing chiefly with questions arising out of the withholding of political recognition from de facto foreign governments. Most of the decisions reviewed concerned the unrecognized governments of Mexico and of Russia. At the time of writing, the United States had recognized the Government of Mexico and Great Britain had recognized both the Government of Mexico and the Government of Russia, with the result that most of the problems presented in the so-called “ recognition cases” continued acute only in the United States and only with respect to Russia. Problems presented by the withholding of recognition from the Government of Russia are still acute in the United States in 1931, novel and interesting cases have been before the courts in the intervening years, and the end is not yet in sight. In the present paper it is proposed to bring the earlier review of this group of decisions up to date.

The announcement on November 4, 1929, that Great Britain intended to recommend Iraq for admission to membership in the League of Nations in 1932 has presented some interesting constitutional questions to the Permanent Mandates Commission, as well as the unusual spectacle of a great Power seeking to convince a skeptical outside body that its dependency is ripe for independence. Heretofore, dependencies that wanted independence have usually had to fight for it, as did the United States, the Latin American States, Belgium, and the various successors to the Ottoman, Romanoff and Hapsburg Empires. It is true, Colombia and Panama, Sweden and Norway, Denmark and Iceland have separated without war but with some heartburnings. British statesmen experienced in the loss of colonies by violence, talked freely in the mid-nineteenth century of the natural destiny of colonies to drop from the mother tree when ripe, and in the twentieth century they have acquiesced in a status of virtual independence for the dominions, soon to include India. They have rationalized this “ climbing process” as one “ common to all the communities which form part of the Empire. Each of them, whether the population is predominantly white or predominantly colored, is gradually, as it develops in strength and capacity, passing upward from the stage in which the community is wholly subject to control exercised from London to that in which the measure of control diminishes, and so on to that in which the control has ceased entirely.”But this was after the event. Before it, history records military episodes in Ireland, India, South Africa, and even Canada.

The policies of the so-called great Powers toward China in the twentieth century have frequently given rise to serious diplomatic disputes. Fortunately, in many cases, these differences have tended to clarify conflicting interpretations of policy, and by so doing have led to a better understanding of principles on which more complete agreement might be achieved. Conspicuous among such cases is the policy usually referred to as the Open Door. From 1899 until 1922 the Open Door in China was a subject of almost constant international friction, due, in part, to a lack of common agreement as to the precise commitments to which the Powers were pledged. Specific cases of disagreement led finally to a better appreciation of the principles involved, and in 1922 the Open Door policy was given its first treaty definition. The following pages are an attempt to analyze a series of events in 1916-17 which demonstrated the wide gulf between American and European interpretations of the Open Door, and the imperative need of a new definition of the policy. The essential background of the discussion may be stated briefly.

The year 1930 has been marked by the eighteenth (ordinary) session of the Permanent Court of International Justice, which began on June 16,1930, and continued until August 26, 1930, and by the nineteenth (extraordinary) session, which began on October 22, 1930, and ended on December 6, 1930; by the rendering of Advisory Opinion No. 17, on the question of the Greco-Bulgarian “ Communities” ; by the rendering of Advisory Opinion No. 18, on the question relating to the Free City of Danzig and the International Labor Organization; and by the rendering of an important order in the Franco-Swiss Zones case. During this year, also, Judge Frank B. Kellogg was elected to fill the vacancy caused by the resignation of Charles Evans Hughes, i.e., to serve from September 17, 1930, to December 31, 1930; and nineteen members of the Court were elected for the new term of nine years, beginning on January 1, 1931. The Protocol for the Revision of the Statute of the Court failed to come into force, as anticipated, on September 1, 1930, and the court continues, at any rate for the time being, under the unamended statute.

The motive force back of immigration into the United States has shown interesting variations. Appealing first to victims of religious tyranny as a haven, the United States of America assumed a new importance in the middle of the nineteenth century as a refuge for victims of political tyranny, and somewhat later for individuals seeking relief from economic poverty. Its democratic form of government offered an undreamed of freedom to millions of politically oppressed people, and its marvelous stores of natural wealth held forth fabulous opportunities for an immigrant to improve his material well-being. The cumulative and collective effects of these inducements resulted in an increasing annual influx of immigrants seeking surcease from oppression of one kind or another which culminated in the most extensive movement of people from one continent to another ever recorded by history.

The above is the title of an article by. Mr. E. G. Trimble in the January (1930) issue of this Journal, which contains a rather severe indictment of the Allied Powers, and particularly of Great Britain, for having violated during the World War various well-settled rules of international law regarding the conduct of maritime warfare. I do not deny at all that there were violations of certain rules and practices which had come to be generally, if not universally, recognized as a part of the customary law of nations—violations not only by the Allied Powers, but on an even larger scale by their opponents, which latter, however, the author passes over in silence. But, in my opinion, his charges in some cases are not well founded either upon principles of international law, reason or the logic of the actual conditions under which the rules had to be applied. In presenting here a different view of the case, my object is not so much to defend the Allied Powers against the charges contained in Mr. Trimble's indictment as to reaffirm and maintain views which I expressed during the war regarding certain rights of belligerents in naval warfare, especially under the peculiar conditions which prevailed during that war—rights the exercise of which I believe was justified in principle by those conditions, whatever may have been the opinion of statesmen and prize judges a century ago, and which would have been claimed and exercised by Germany had the geographical situation as between her and Great Britain been reversed.