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Those provisions were incorporated at San Francisco at the instance of certain countries who felt that there should be some provision in the Charter indicating rather clearly that the decisions of the Court would be carried out.
Those who opposed the incorporation of these provisions called attention to the fact that in no case had the decisions of the existing Court been ignored by the parties to the cases before it, that it was not necessary to incorporate such a provision in the Charter. Yet there seemed to be no particular objection to having such a provision, and because of the insistence of these countries, it was incorporated.
Senator BURTON. Perhaps you were here this morning when Mr. Pasvolsky testified on the matter of enforcing the decisions of the Charter or the decisions of the Court. As I understood him, under article 94, when we call upon the Security Council to take measures to give effect to the judgment of the Court, I understood him to say that that was limited to article 39, and therefore when the Security Council is called in to act as a sheriff, as I suggested this morning, it must necessarily reach a decision before it acts that the case is one which involves a threat to the peace or a breach of the peace or active aggression or something of that sort endangering the maintenance of international peace and security, before it acts; and therefore it is optional with the Security Council as to whether it will carry out a decision of the Court, and that depends primarily upon whether it is one which threatens the peace of the world.
Mr. HackWORTH. I did not hear Dr. Pasvolsky's testimony this morning, but I think that this statement is absolutely correct, and I say that for the reason that when these provisions were under consideration in the Technical Committee, it was pointed out to the members of the committee that Committee 1 of Commission IVwhich was the body having this under consideration—that that Committee had no authority to deal with the powers and duties of the Council, that those matters would be handled by another Committee; so that in order to make sure that Committee 1 of Commission IV was not trying to increase the powers or the responsibilities of the Council, there was incorporated in paragraph 2 of article 94 the statement that the Security Council may, if it deems necessary, make recommendations or decide upon measures to be taken.
In order to determine what the Council may do, it is necessary to look to the chapter with respect to the Council and to the chapter regarding peaceful settlement or settlement by virtue of other means. It was definitely understood by the whole committee as well as by the Commission Commission IV-that there was no intention to increase the duties of the Council under article 94, and that all that was intended by these provisions was to show that the states expected that the decisions of the Court would be complied with, and that if they were not complied with, the complaining party would have a right to bring the matter to the attention of the Council for whatever that might be worth, but the Council would be entirely free to do what it might see fit.
Senator BURTON. And finally, the Council in making that decision, would have to have a majority of the seven, in which all the permanent members concurred, is that correct?
Mr. HACKWORTH. I think that that is correct.
The CHAIRMAN. In other words, your contention is that there was no desire or intention to increase the jurisdiction of the Council ?
Mr. HACKWORTH. That is absolutely correct, Mr. Chairman.
Mr. HACKWORTH. Article 95 of this same chapter contains a provision that nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.
It was not necessary to incorporate that provision, but it was thought to be desirable for the reason that it was not intended that this Court should be the only tribunal to which states had a right to go for the settlement of their differences. Arbitral tribunals are referred to in the chapter on peaceful settlements, and this article is merely to make it abundantly clear that the Court was not to be regarded as the only tribunal open to Members of the United Nations.
Senator WHITE. May I ask a question there!
Senator WHITE. Will these other tribunals to which a Member is authorized to turn, will its decisions be of equal authority with the Court made a part of this Charter?
Mr. HACKWORTH. I think that if the parties agreed to accept the decision of an arbitral tribunal, that decision would be of equal validity for that purpose, with the decision of the Court.
Senator WHITE. Isn't there a danger then instead of getting a codification or unification of decision, that you are inviting diversity of court judgments?
Mr. HACKWORTH. May I ask you to repeat that question, please, Senator?
Senator WHITE. I don't know whether I can or not, but it is not possible that if you have two or more bodies having equal authority, that instead of getting a unification of decisions and a stabilization of judicial opinion, you are inviting differences of interpretation and differences of decision and of opinion?
Mr. HACKWORTH. There is no doubt about that, but I don't know of any way to escape the result. We have the same situation here in this country with respect to our own domestic tribunals. The decisions of the courts of one State may differ from those of the courts of another State.
Senator BARKLEY. This provision might contemplate resort of tribunals that are not in existence. If two states are disputing about something they can agree to set up a tribunal between them or a board of arbitration between them, they are not prevented from doing so. That is not a permanent tribunal set up for general purposes. They might resort to some other tribunal in existence, but they might even agree between themselves to set up an arbitration board or call in some high officer of another nation to mediate between them. This is intended not to prevent that, isn't it?
Mr. HACKWORTH. Absolutely. That is exactly what was in mind, Senator. As you will note, the last part of article 95 speaks of tribunals by virtue of agreements already in existence or which may be concluded in the future. The thing that you have in mind was in contemplation.
Senator BARKLEY. A tribunal might be set up for one purpose only and cease to exist when it has accomplished its objective?
Mr. HACKWORTH. That is correct.
Senator THOMAS. As I understand your answer, then, those agreements, which the various nations now have with other nations settling -disputes between each other, are in no way interfered with?
Mr. HACKWORTH. That is correct; not at all.
Senator THOMAS. Then does this provision also guarantee us that as long as States have worked out some arrangement by themselves for the settlement of their differences, and those arrangements are moving along all right, the Charter in no way interferes with those arrangements ?
Mr. HACKWORTH. Not in the slightest degree.
Senator THOMAS. Then all that has been done so far toward bringing about the machinery for the settlement of disputes between nations remains exactly in the place where it is today?
Mr. HackWORTH. Precisely in the same status.
Senator HAWKES. Suppose nations have agreed upon a manner of settling their disputes, and that is permissible under this document, and there was substantial delay which would cause a question of doubt as to whether it was interfering with the peace and security of the world, would the Security Council then have the right to reach in there and take that state into their own court?
Mr. HACKWORTH. No, the Security Council has no right whatsoever to throw litigants into the court.
Senator Hawkes. Even if it threatens peace, it would not have that right?
Mr. HaCKWORTH. No.
Mr. HACKWORTH. No, not even in that situation. All that the Security Council can do with respect to the Court is to request an advisory opinion on some question pending before the Council. It can not require states to go into the court. It may make recommendations, but the states are not obliged to follow the recommendations of the Council in that respect.
If because of failure to follow the recommendation of the Council, peace is threatened, then the Council has the right to take such action as is authorized by the Charter.
Senator HAWKES. You understand what I mean. way to take a case in, which threatens the peace and security of the world?
Mr. HackWORTH. There is no way by which the Council can force states into the court.
Senator BURTON. There isn't anything the Court can do, is there, under this Charter, to interfere with the preservation of peace and the prevention of war for which we are setting up this security process? Suppose the Court has a case and it has taken a long enough time on that case so that there developed a threat to international security and peace. The decision by the Court of the judicial question can not interfere, can it, with the maintenance of peace by the Security Council?
Mr. HackWORTH. The Court has no authority to interfere in any way with the action of the Council.
Is there any
Senator BURTON. But the Council can act notwithstanding there is pending an issue in the Court ?
Mr. HACKWORTH. Oh, yes, quite so.
Senator HAWKES. That is not the point I am talking about. I am talking about a case that is not going before the Court, a case that is being handled by some method devised by the nations which you say is presumably under this Charter. I am talking about if that case were being delayed to the point where it threatened the peace and security of the world, isn't there some way to reach in there and take that case to a point where it will be decided ?
Mr. HACKWORTH. There is no way. There is no way whatsoever by which the Council can force litigants into the Court.
I might elaborate on that just a little in this sense; that the jurisdiction of the Court is optional with the states or the parties to a dispute. Those states may go into the Court or they may not. There is à provision in article 36, known as the optional clause, under which states may agree to accept compulsory jurisdiction of the Court, and a very large number of states have agreed to that; so that in a case of a dispute between two countries which have agreed to accept compulsory jurisdiction of the Court, any one of those states can force the other into the Court, but until compulsory jurisdiction under the optional clause has been accepted, or the parties have agreed to submit to the Court, no state may be forced into Court by any other state or by the Council.
Senator HAWKES. Thank you very much.
Senator THOMAS of Utah. I wonder if you will turn to article 36 so that the record will be clear in answer to Senator Hawkes' question and elaborate on the second paragraph of that article?
Mr. HACKWORTH. The second paragraph of the article says that the states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning the four categories of cases mentioned in the article. Unless a state has accepted compulsory jurisdiction, it goes into Court only by its own free will, by agreement in advance with the other party to the dispute to allow the Court to determine the question. If it has accepted compulsory jurisdiction, then it may be haled into court by the other party to the dispute just as you may bring a suit against me in a court in the District of Columbia. I have no choice; you can sue me and I must answer. But under this Statute, if you were a state you could not sue me-another state-unless I agreed with you to go to the Court, or unless I accepted compulsory jurisdiction under the optional clause.
Senator BURTON. I am interested in the statement which Mr. Hackworth made with regard to the compulsory jurisdiction, but the next question arises : What about the codification of the law in which the decision shall be made, and I wanted to refer you to article 13, in which it makes the interesting statement that [reading]:
The General Assembly shall initiate studies and make recommendations for the purpose of
a. Promoting international cooperation in the political field and encouraging the progressive development of international law and its codification.
What would be the process by which there can be international law codified in view of these provisions?
Mr. HACKWORTH. I suppose that the Assembly might follow the procedure followed by the League of Nations which in 1927 undertook the codification of three topics of international law; namely, the responsibility of states toward aliens; territorial waters; and nationality. In that situation, the League of Nations sent out questionnaires to all the states setting out a series of questions and asking for replies. Those replies were submitted, were considered by a special committee set up by the League, and bases of discussion of these three subjects were prepared. A conference was convened at The Hague in 1930 at which time these three subjects were discussed by three separate committees. As a matter of fact, nothing of a substantial nature resulted, but that, Senator, I think will indicate the procedure which might conceivably be followed by the Assembly.
Senator BURTON. The thing I was essentially interested in is, assuming for the moment that they did get together and make a recommendation on these three or more subjects, how was that made effective and binding on the Court?
Mr. HACKWORTH. Only by the treaty process, which in our case would have to have the approval of the Senate.
Senator BURTON. It would have to be done by a multilateral treaty and it would not be through action of the United Nations?
Mr. HACKWORTH. That is correct.
Mr. HACKWORTH. The last article of chapter XIV, has to do with advisory opinions. It provides that the General Assembly and the Security Council may request of the Court advisory opinions on any legal question.
Then there is a second paragraph which is new; that is to say, it was not in the Dumbarton Oaks proposals. It reads:
Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.
There was a demand on the part of a number of states that organs of the international organization should have free access to the Court for advisory opinions. There was opposition to such a broad provision on various grounds, including that of cluttering the Court up with a lot of miscellaneous questions which ought to be decided administratively or otherwise, and also that to allow all of these organs to go into the Court at their will, might tend to cheapen the effectiveness of the Court. A compromise was reached that these organs should be allowed to go into Court for advice if they were authorized by the General Assembly to do so. It was thought that that sufficiently safeguarded the situation from the point of view of the Court and from the point of view of the organizations.
Senator THOMAS of Utah. From the standpoint of advisory opinion, this provision is broader than the advisory-opinion provision under the League and under the League Court, isn't it?
Mr. HACKWORTH. That is correct. Under article 14 of the Covenant of the League, and under the Statute of the Court created pursuant to that article, only the Assembly of the League and the Council could request advisory opinions. This elaborates upon that slightly.
Senator AUSTIN. May I ask a question there, Mr. Chairman?