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Senator Austin. Can the Court protect itself under this Charter against a great volume of advisory opinions by some method of citing briefly precedents, or by refusing to grant the opinions ?
Mr. HACKWORTH. Article 65 of the Statute of the Court states that the Court may give an advisory opinion—not that it shall give it. The Court is given complete discretion to give advisory opinions or not as it may see fit, and that applies not only to requests from the Security Council and from the Assembly but to requests from these other organs.
Senator WHITE. May I call attention to the fact that the language of the article is that the Council may request the Court to give advisory opinion, but it does not indicate to me whether there is an obligation on the Court to render an advisory opinion or whether the Court in its discretion may stand up and say no, it will not issue an advisory opinion. My own view about it is that it ought not to be mandatory on the Court to render advisory opinion, but that it should rest in the sound discretion of the Court. That is my view of what the rule should be, and I was not clear what was intended here.
Mr. HaCKWORTH. Your view, Senator, is precisely in accord with the view of the Technical Committee that prepared this draft, namely, first, that it should be discretionary with the Council and the Assembly to request an opinion, and, secondly, that it should be discretionary with the Court to give or not to give an opinion.
Senator GEORGE. That would be an inherent power anyway, would it not?
Mr. HACKWORTH. That is probably true, Senator.
The CHAIRMAN. The language is clear that the Court “may.” It does not say it “shall,” and “may” does not mean “shall."
Mr. HACKWORTH. "That language was discussed and very carefully drafted in order to avoid tying the hands of the Court.
The CHAIRMAN. You may proceed.
Mr. HACKWORTH. The Dumbarton Oaks proposals provided, as I stated a moment ago, that there should be an international court which should constitute one of the principal organs of the international organization, that the Statute should be part of the Charter, and that all Members of the organization should ipso facto become parties to the Statute, but no effort was made at Dumbarton Oaks to draft a statute. That matter was left open; but in April 1945 the four sponsoring powers sent out invitations to all the United Nations to send representatives to Washington for the purpose of preparing a draft of a Statute to be submitted to the Conference at San Francisco. Fortyfour nations responded to that invitation, and their representatives met in Washington from April 9 to April 20, both inclusive, and prepared for submission to the San Francisco Conference a draft of a Statute. The committee took as the basis for its work the present Statute of the Permanent Court of International Justice. It made numerous changes and many improvements, including a provision for amendment which was not contained in the existing Statute, and submitted this draft, together with an elaborate report, to the San Francisco Conference.
Senator BURTON. Could I ask just one question there? I think it is clear in the record, but you have just made reference to the present Statute of the Permanent Court of International Justice. There is a Statute now.
Mr. HACKWORTH. Yes.
Senator BURTON. But when we find all through this Statute language such as we find in the first articleThe International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charterdoes that mean this new Statute and not the present Statute that is now in existence?
Mr. HACKWORTH. That is correct.
As I was saying a moment ago, the Committee of Jurists which met in Washington revised the existing Statute to conform to the pattern of the new organization, but there were three questions on which the committee did not undertake to come to decisions. One of these questions had to do with whether or not the Permanent Court of International Justice should be continued, or whether a new Court should be created. It was thought by the Committee of Jurists that this was primarily a political question and it was left open to be decided at San Francisco.
The second question had to do with the nomination of judges and again that was largely political. The Committee prepared alternative drafts on that question. One followed the present Statute of the Permanent Court, namely, that the nominations should be made by the national groups of the Permanent Court of Arbitration under the 1907 Hague Convention. The other draft provided that the nominations should be made by the governments directly. Those alternative drafts were submitted to the San Francisco Conference.
The third question related to compulsory jurisdiction of the Court. The committee was rather closely divided on that question, many of the representatives feeling that the Court should have compulsory jurisdiction, and that it should not be optional with the States as to whether they should go before the Court.
Again, alternative drafts were prepared by the Committee of Jurists and submitted to the San Francisco Conference.
At the San Francisco Conference, the first question, as to whether the present Court should be continued, was debated at length, and it was finally decided that it would be better to create a new Court. Some of the reasons back of that conclusion were that there were a number of states, 16 in all, parties to the present Statute of the Court, which were not represented at San Francisco. Some of these states were neutrals and some were enemies. As to enemies it was not thought that any difficulty would exist, since that matter could be taken care of in the peace treaties, but as to the neutrals a different situation obtained. The Dumbarton Oaks proposals provided that states not members of the United Nations should be allowed to adhere to the Statute under such conditions as the Security Council and the General Assembly might determine.
As a net result of the discussions in San Francisco, it was decided that a new Court would be fraught with fewer difficulties than would the continuance of the present Court.
On the nomination of judges it was felt that to allow the nominations to be made by the national groups of states parties to The Hague Convention of 1907 would be more likely to keep the nominations free from political considerations, and little difficulty was experienced in adopting that procedure.
The CHAIRMAN. Mr. Hackworth, would you suspend for just a moment?
Members of the Committee and ladies and gentlemen, we have some distinguished guests who have honored the committee with their presence, and I would like to present Mr. John Sofianopoulis, the Foreign Minister of Greece and chairman of the Greek delegation at San Francisco,
I desire to present also Dr. C. Goulimis, a member of the Greek delegation and councellor to the delegation at the San Francisco Conference. [Applause.]
The CHAIRMAN. Now, Mr. Hackworth, you may proceed.
Mr. HACKWORTH. On the question of compulsory jurisdiction, there was a sharp division of view among representatives of the countries represented at San Francisco. Many of the countries, particularly the smaller ones, and at least one of the larger countries, favored compulsory jurisdiction; other countries, even some that had accepted compulsory jurisdiction under the optional clause of the existing Statute, opposed compulsory jurisdiction, and one important state made the categorical statement that compulsory jurisdiction would not be acceptable.
After much discussion in the committee and after the appointment of a subcommittee which went into the matter with great care, it was decided to retain the optional clause in article 36.
Senator Austin. Were there any states that did favor compulsory jurisdiction as to a category of questions?
Mr. HACKWORTH Many states—I should say that a majority of the states represented at San Francisco—were willing to accept compulsory jurisdiction in all cases specified in article 36, those four categories of cases.
Senator Austin. Did the Conference contemplate the posibility that many states would exercise the option?
Mř. HACKWORTH. That was the principal argument against outright compulsory jurisdiction—that many states, some 40 as I recall under the present Statute, had accepted compulsory jurisdiction, and that it was to be supposed that under the new Statute, states would do likewise. It was argued there that states that had accepted compulsory jurisdiction under the present Court would no longer be bound by their acceptance if a new Court were set up. That was taken care of by a provision in the Statute in article 36, that those states which had accepted compulsory jurisdiction for the Permanent Court of International Justice would now substitute the proposed International Court under the same terms.
The particular provision, Senator Austin, contained in paragraph 5 of article 36, is very short. It reads:
Declarations made under article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed as between the parties to the present Statute to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
Now, Mr. Chairman, I shall try to be brief, but I think that it might be of interest to call attention to a few other outstanding features of the Statute.
First, that the Court is to be composed of 15 judges as provided for in article 3 of the Statute.
Second, that the judges are to be elected for terms of 9 years—that is in article 13—and that whereas under the present Statute of the Permanent Court, the terms of all of the judges expire at one and the same time and an entirely new Court is to be elected, under the Statute as amended, only one-third of the judges will go out of office each 3 years, so that you will have a continuing Court, two-thirds of the members of which will be familiar with pending cases and will have had experience in the work of the Court. We think that that is a considerable improvement over the present Statute.
Senator BARKLEY. In articles 5 and 6 there seems to be a provision with reference to the selection of these judges that sounds a little inconsistent on the surface, although I suppose it is not. It provides for the nomination of candidates by the respective groups of nations, and it says in subsection 2 of article 5 that no group may nominate more than four persons, not more than one of whom shall be of their own nationality. Does that mean that if the United States needs to nominate four persons, it could only nominate two of them from the United States?
Mr. HACKWORTH. Yes; two people for the same vacancy.
Senator BARKLEY. In the next sentence it says in no case may the number of candidates nominated by a group be more than double the number of seats to be filled. In other words, if there is only one seat to be filled if there were a vacancy—there would be more than one seat every 3 years, of course—there would be five seats
Mr. HACKWORTH, Yes.
Senator BARKLEY (continuing). When these expirations take place one-third at a time?
Mr. HACKWORTH. Yes.
Senator BARKLEY. But in the case of a vacancy it would only mean the election of one person, you feel that as to that vacancy, where in one place it says there that you may nominate four persons and it says in the next sentence that you can nominate twice as many as there are vacancies to be filled; do you feel that there is any inconsistency there?
Mr. HACKWORTH. I don't think there is. The Statute was prepared before the Court was created, and consequently the whole Court was in the first instance?
Senator BARKLEY (interposing). The whole Court was to be selected in the first instance
Mr. HACKWORTH. Yes; and in that first instance only four candidates could be put up by any national group, not more than two of those candidates could be of the nationality of that group. After the Court is once made up and a single vacancy occurs, then the national groups can only nominate two for that particular vacancy.
Senator BARKLEY. I see.
Mr. HACKWORTH. The compensation of the judges of the Court has not been taken care of in the Statute or in the Charter except that it is provided that the Assembly shall fix the compensation (article 32 of the Statute).
The Court is to give its decisions in accordance with international laws. It may apply (a) international conventions, general or particular, establishing rules expressly recognized by the contesting states; (6) international custom as evidence of general practice accepted as law; (c) general principles of law recognized by civilized nations; and (d) subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Senator THOMAS of Utah. What article are you reading from?
This provision shall not prejudice the power of the Court to decide a case ex aequo et bono if the parties agree thereto. In other words, the Court may apply the principles of equity in any case where the parties to the case agree to have those principles applied.
Another feature to which I think I should call attention is the fact that articles 26 and 29 of the Statute make provision for the creation by the Court of special chambers to pass upon particular categories of cases, also a chamber of summary procedure consisting of five judges, which may be used if the parties to a dispute request it.
It is also important to bear in mind at this point that this Statute, contrary to the existing Statute, provides that the Court may hold hearings and render decisions elsewhere than at the seat of the Court, and that the special chambers may likewise hold hearings other than at the seat of the Court (arts. 22 and 28).
This would permit the Court and the chambers which it is authorized to create to repair to the place where the conflict exists, and there hold hearings in the light of the local situation.
We think that that is a considerable improvement, that it will bring the Court closer to the people, and enable it to gain a better understanding of local conditions.
The procedure of the Court is covered in chapter III, articles 39 to 64. Those are largely the existing provisions with respect to the procedure to be followed by the Court and by the litigant parties, and I take it that the committee would not desire that I should take up its time in going into those articles.
The question of advisory opinions has already been mentioned and I need not go into that matter again.
We now come to two new articles, namely, articles 69 and 70.
Senator Austin. Mr. Chairman, before leaving this subject, may I ask whether the number of judges on the bench would be increased by the use of the power under article 31, paragraph 3, providing for the supplying of a judge where no judge of the nationality of the parties is on the bench?
Mr. HACKWORTH. The number of judges on the bench—that is, on the main Court—would not be increased, but the number of judges functioning at a particular time would be increased by the appointment of these ad hoc judges. They would be appointed only for the particular case, and as soon as that case was disposed of they would go out of office.
Senator BURTON. Before reaching the end-you are about to consider the last section, as I understand you?