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THE INTERNATIONAL COURT OF JUSTICE

(Chapter XIV)

INTRODUCTION

Throughout its history the United States has been a leading advocate of the judicial settlement of international disputes. Great landmarks on the road to the establishment of a really permanent international court of justice were set by the United States. We submitted important differences with other countries to tribunals composed of arbitrators or judges selected for specific cases, or groups of cases, before an international court stood ready to receive the complaints of nations. At the Hague Peace Conferences of 1899 and 1907 the United States played a prominent part in the efforts to establish such a court but no generally acceptable plan could be devised at that time.

The organized structure for the maintenance of peace which statesmen attempted to establish at the end of the war of 1914–1918 included a Permanent Court of International Justice which was brought into being by the League of Nations. A prominent American participated in finding a formula for that court. Although not a member of the League of Nations, the United States signed the Protocol of Signature of 1920 to which was attached a Statute under which the new Court functioned, and in 1923 President Harding asked the Senate for its advice and consent to ratification. The Senate in 1926 stated certain reservations and conditions under which the United States might ratify. Over the course of nine years negotiations were carried on with the states which were parties to the Statute of the Court and with the League of Nations. The Statute was revised in an attempt to meet the views of the Senate but in a final Senate vote of January 29, 1935, the necessary two-thirds majority required for approval was not secured. The fact that the United States was not a member of the League of Nations to which the Permanent Court of International Justice was related was no doubt a principal reason for the objections to our participation.

As the United States becomes a party to a Charter which places justice and international law among its foundation stones, it would naturally accept and use an international court to apply international law and to administer justice. International law has long been criticized for its vagueness and its weakness; the Charter assigns to the General Assembly the task of promoting cooperation in its development and provides for a Court "whose function is to decide in accordance with international law”. The International Court of Justice, which the Charter establishes, has an important part to play in developing international law just as the courts of England and America have helped to form the common law.

THE DUMBARTON OAKS PROPOSALS

The Dumbarton Oaks Proposals included in Chapter VII provision for the establishment of a court as “the principal judicial organ of the Organization". It was proposed that the Statute of such a Court should be annexed to the Charter and made a part of it and that all Members of the Organization should automatically be members of the

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Court. The conditions on which states not Members of the Organization might become parties to the Statute of the Court were to be determined in each case by the General Assembly on the recommendation of the Security Council. The Proposals left open the question whether this Statute should actually be the existing Statute of the Permanent Court of International Justice with such changes as might be desirable, or whether there should be a new Statute. But even if the second alternative were adopted, the Proposals said that the Statute of the existing Court should be used as a basis.

THE COMMITTEE OF JURISTS

The modification of the Statute of the existing Court, or the framing of a new Statute on the basis of the old one, was a technical task calling for the concentrated labors of a group of jurists. Accordingly, shortly after the Crimea Conference when the date for the San Francisco Conference was set, the Sponsoring Powers invited Members of the United Nations to designate representatives to meet in Washington on April 9 to prepare a draft of a Statute to be submitted to the Conference. Forty-four of the United Nations acted upon this invitation and the Committee of Jurists held sessions in Washington from the 9th through the 20th of April.

The Committee of Jurists did not undertake to decide whether the Permanent Court of International Justice should be continued or whether a new court should be established; the final answer to that question was left for San Francisco. But the Jurists did, in accordance with the provisions of the Dumbarton Oaks Proposals, take as the basis of their work the Statute of the existing Court. As a working rule it left well enough alone, making changes in the text under which the Court had operated for twenty-three years only where there was strong reason for doing so. Some changes were necessary to bring the statute into line with the framework of the new United Nations organization; some were technical improvements; and some were clearly indicated by the experience of the existing Court. · Here the Committee had the advantage of the presence of three jurists who are or who have been judges of the Permanent Court of International Justice and of another who had been the Court's Deputy Registrar.

THE CHARTER

After a Committee of the San Francisco Conference had studied and worked over the report of the Committee of Jurists, which included a Draft Statute, it was found that so far as concerns the articles to be included in the Charter on this subject, little change in the Dumbarton Oaks Proposals was necessary although the one open question as to whether there should be a new court or whether the old court should be continued had to be finally answered and certain additions had to be made. In the seventy articles of the new Statute numerous points were dealt with and to these attention will be directed later.

OLD COURT OR NEW

What was Chapter VII of the Dumbarton Oaks Proposals becomes Chapter XIV of the Charter. The first article in the Chapter (Article

92) registers the important decision made upon the question "old court or new". In many ways this was the most difficult problem which confronted the Committee dealing with the Court. Opinions differed widely but all recognized that there were forceful arguments on both sides of the question. There was unanimous agreement that the Permanent Court of International Justice had rendered effective service and had made an excellent record. Fifty-one states had been parties to the Court's Statute and the exercise of its jurisdiction had produced general satisfaction throughout the world. But sixteen of the states parties to the old Statute, including enemy states, were not represented at San Francisco, while a number of Members of the United Nations who were represented at the Conference were not parties to that Statute.

So far as enemy states are concerned, no difficulties were anticipated since changes in the old Statute could have been dealt with in the peace treaties, but a different solution would have been called for with respect to the neutral states. It was argued that a statute to which they were parties and the court operating under it could not be changed and taken over without their consent and yet it was obviously not feasible to include them in the deliberations of the San Francisco Conference of the United Nations. Moreover the provision in the Dumbarton Oaks Proposals (Article 93 of the Charter), which provides that states not Members of the United Nations can become parties to the Statute of the Court only on conditions laid down by the General Assembly on the recommendation of the Security Councii, excludes the possibility that such states might automatically remain parties to the Statute by mere notification of acceptance of the new Statute.

The Conference Committee, having in mind the different considerations applicable to the various states which have not taken part in the war, was not disposed to depart from that provision of the Dumbarton Oaks Proposals. This conclusion was at least in some measure due to the fact that the new Court was to be an integral part of the United Nations organization, its Statute being annexed to and a part of the Charter itself, and all Members of the Organization being ipso facto parties to the Statute (Articles 92 and 93 of the Charter). To assure the establishment of the Court simultaneously with the establishment of the organization of which it is to be a part, it was thought that it would not be wise to risk protracted negotiations with the non-member states. On the whole, therefore, it was decided that a new Court should be established.

This decision does not “break the chain of continuity with the past," as the report of the Conference Committee puts it. Article 92 of the Charter recites the fact that the new Statute is based upon the Statute of the Permanent Court of International Justice. The numbering of the articles of the Statute has remained unchanged so that ready reference may be made to the accumulated literature and precedents which surround the old Statute. Just as the Permanent Court of International Justice built upon the terms of the Hague Conventions of 1899 and 1907, so the new International Court of Justice builds upon its immediate predecessor. While the Court is a "new court," it is in a very real sense only a “revised court,” the successor of the old. Further to preserve the link with the past and to safeguard progress already made, Article 37 of the new Statute contains a provision which declares that where existing treaties provide for the use of the Permanent Court of International Justice, the Members of the United Nations agree that the reference shall automatically be considered applicable to the new International Court of Justice. A specific provision is also included in Article 36 of the new Statute maintaining in force with respect to the new Court, declarations made under the old Statute whereby many states accepted the compulsory jurisdiction of the old Court. This question of the compulsory jurisdiction of the Court will be examined more fully hereinafter.

The Conference Committee considered that it was clearly not possible to contemplate the existence of two World Courts, both sitting at the Hague. But for the reasons indicated, it was not thought that the Conference need deal with the method of terminating the old Court. Since a large majoriy of the states which are parties to the old Statute were represented at San Francisco and have agreed to establish the new Court, it is to be assumed that they will take appropriate steps to provide for the transition.

OTHER ARTICLES OF THE CHARTER

Article 95 of the Charter contains a provision which was not in the Dumbarton Oaks Proposals but which does stem from the first Article of the Statute of the Permanent Court of International Justice. It provides that the parties to any dispute are always free to refer cases to any other tribunal upon which they may agree. This arrangement may be said to be envisaged by the wording of the Dumbarton Oaks Proposal which said that the Court should be the “principal” judicial organ, thus intimating that other judicial bodies might be utilized.

Chapter VIII, Section A, Paragraph 6, of the Dumbarton Oaks Proposals provided that the Security Council might refer questions to the Court for advice. This proposal was inspired by the useful service of the Permanent Court of International Justice in rendering advisory opinions on the request of the Council of the League of Nations. The Assembly of the League also had the power to request such opinions, and at San Francisco like power was given to the General Assembly. The appropriate provision is now included in Chapter XIV (Article 96). Suggestions were made that other international organizations and states as well be also given the right to ask for advisory opinions but this view was not accepted. As an intermediate step, the same Article (96) provides that the right to ask advisory opinions may be exercised by other organs of the United Nations and specialized agencies brought into relationship with the United Nations, as may be authorized by the General Assembly. In these cases, however, the questions are limited to those of a legal character arising within the scope of the activities of those organs and agencies.

One other article has been inserted in Chapter XIV of the Charter which was not foreshadowed in Chapter VII of the Dumbarton Oaks Proposals. It deals with the carrying out or enforcement of the Court's judgments. The first paragraph of Article 94 is a simple statement of the obligation of each Member of the United Nations to comply with the decision in any case to which it is a party. The second paragraph of this Article links this part of the Charter's system of pacific settlement of disputes with other parts by providing that if a state fails to perform its obligations under a judgment of the Court, the other party may have recourse to the Security Council which may, if it deems it necessary, take appropriate steps to give effect to the judgment.

THE STATUTE

The draft Statute prepared by the Committee of Jurists in Washington was transmitted to the San Francisco Conference by the Sponsoring Powers and was at once accepted by the appropriate Committee of the Conference as the basis of its work. Two major questions regarding the Statute had been left unanswered in Washington and had been referred to the Conference in the form of alternative texts between which the Committee of the Conference was asked to choose. Nomination and Election of Judges

The first of these questions dealt with the method of nominating the judges of the Court. The system evolved in 1920 for the Permanent Court of International Justice was designed to assure the election of competent jurists who would serve as independent judges, free from political influence. This system utilized the machinery created by the 1907 Hague Convention for the Pacific Settlement of International Disputes. Under that treaty, each State names a panel of no more than four distinguished jurists who would be available to serve as arbitrators. These panels, or national groups as they are called, make the nominations for judges of the Permanent Court of International Justice. In the Committee of Jurists in Washington a proposal was advanced that the nominations should hereafter be made directly by governments. After full discussion in San Francisco, the Committee decided to retain the old system which, while admittedly complicated, had worked well in practice (Articles 4–6 of the Statute).

Conneected with this problem was that of the election of judges. The old Statute had provided that the list of nominees should be voted on separately but concurrently by the Assembly and Council of the League, no judge being declared elected unless he secured an absolute majority of the votes in each body. This system was designed to secure a balance of the interests of large and small states and it too had justified itself in practice. The Dumbarton Oaks Proposals in Chapter V, Section B, Paragraph 4, had referred to the power of the General Assembly to participate in the election of judges but had included no comparable reference in Chapter VI, which describes the powers of the Security Council. The latter omission was not based upon any decision at Dumbarton Oaks to exclude the Security Council from this function and the Committee of the Conference decided in favor of maintaining the old system of bicameral voting as had been recommended by the Committee of Jurists. It also decided to retain the provision of the old Statute calling for election by absolute majorities in each body, so that in this matter no special majority and no right of veto is involved. (Articles 8-12 of the Statute). Compulsory Jurisdiction

The other major question left open at Washington was whether the jurisdiction of the Court should

be optional or compulsory. The Statute of the Permanent Court of International Justice contains the

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