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Mr. HACKWORTH. Yes.
Senator BURTON. Could you just refer back to article 36 in that fifth section which referred to the fact that 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?
Could you in a few words give the history of the relation of the history of the United States toward the Statute, and what, if any, position we have taken with regard to becoming a member of that Statute?
Mr. HACKWORTH. The United States has not taken a position on that I mean the Senate of the United States has not taken a position. In 1926 the Senate, by a resolution, indicated five conditions under which this Government might be willing to adhere to the Statute, but the question of compulsory jurisdiction, as I recall it, was not involved in any one of those conditions. Compulsory jurisdiction was entirely optional under the Statute, and we could accept it or not as we might see fit. We did, however, as I say, indicate five conditions under which we would be willing to adhere to the Statute.
Senator BURTON. As far as the United States is concerned at the present time, of course, it approaches that perfectly freely and may enter into that or not enter into that Statute for compulsory jurisdiction without regard to what it does after becoming a Member of the United Nations?
Mr. HACKWORTH. That is correct.
Senator GREEN. Let me go back a little. In article 10, section 3, there is a provision as follows:
In the event of more than one national of the same state obtaining an absolute majority of the votes both of the General Assembly and of the Security Council, the eldest of these only shall be considered as elected.
And in article 12, section 4, there is the same language:
In the event of an equality of votes among the judges, the eldest judge shall have a casting vote.
Does that mean the eldest in point of years or is it as in the Senate, where it means the length of service or seniority, unfortunately?
Mr. HackWORTH. I had not given special thought to that, Senator, but I had supposed that the "eldest judge” means the eldest in point of view of years rather than in point of view of service.
Senator GREEN. I wanted to get an expression of opinion as to whether that point had been considered of opinion as to whether that point had been considered or not.
Mr. HACKWORTH. I think that by “eldest judge” is meant the age.
Senator BARKLEY. In dealing with those matters in the courts of the United States, the term "senior judge” is used.
Mr. HACKWORTH. Yes.
Senator BARKLEY. That means in the United States, senior in service.
Mr. HACKWORTH. That is correct.
Senator GREEN. Eldest in service would seem to be more appropriate.
Mr. HACKWORTH. I take it, as Senator Barkley has said, that if we wanted to determine on the basis of the service we would use the word "senior."
Senator GREEN. It is used in five different languages, so there may not be that fine distinction in all of them.
Senator BARKLEY. There may be more than one judge of equal seniority in service, so that you would not have an eldest judge in point of service.
Senator GREEN. There might be twins, also.
Mr. HackWORTH. That is true, because under the present Statute they are all elected at the same time, so you would not have any seniority, but they would all have equal seniority.
This term is carried over from the existing statute without change. Senator GREEN. Well, it is relatively a minor matter.
Senator BURTON. Just on that point I would like to interrupt. I think it throws a little light on the question that the Senator from Rhode Island raises, this issue being determined under article 10 which deals with the election of a man to the bench, and, therefore, under those circumstances there might neither of them have had any length of service and it is relegated necessarily to the eldest in point
Senator GREEN. The other question I wanted to ask about was really to ask you to express your views as to how far reservations can go without nullifying the effect of the ratification.
Mr. HACKWORTH. You mean reservations generally with respect to a treaty?
Senator GREEN. Yes. Reference has been made here once or twice to reservations to the proposed Charter. There is a limit beyond which reservations cannot go either in amplification or restriction, without nullifying the effect of the ratifiation of the Charter itself.
Mr. HACKWORTH. Yes.
Mr. HACKWORTH. Of course, any reservation in order to be effective must be accepted by the other parties to the agreement, so that if it were thought that the reservation would emasculate, so to speak, an agreement, presumably the other parties to the agreement would refuse to accept the reservation.
Speaking generally, I should say that reservations should be reasonable and certainly they must be accepted by the other parties to be effective.
Senator GREEN. In other words, how far is it safe to go in adopting reservations under those conditions ?
Mr. HACKWORTH. It is safe to go just as far as you feel like going, but if you want to be sure to become a party to the instrument, you would have to move with considerable caution lest the other parties should refuse to accept the reservations.
Senator GREEN. I understand all that, but the point is how far one can take reasonable risks in accepting reservations.
Mr. HACKWORTH. If I were anxious to become a party to the document, I would be rather chary about making reservations. I would make only such reservations as seemed to be absolutely necessary for my own purposes.
Senator GREEN. In other words, it would be reasonable to adopt the principle that any reservation might jeopardize the whole instru: ment?
Mr. HACKWORTH. That is absolutely correct. In 1913 we ratified, with a reservation, the International Sanitary Convention, of which the Government of France was the depositary. The Governments of France and Italy objected to the reservation. The Convention did not become operative until 1920, when the various signatories deposited their ratifications and a procès-verbal was drawn up acknowledging the reservation. You encounter that risk.
Senator GREEN. In other words, the only safe way is to refuse to accept any reservations that run the risk of changing the Charter.
Mr. HACKWORTH. I think that reservations should be considered with very great care and should not be made too lightly.
Senator GREEN. Thank you.
Senator TUNNELL. Mr. Chairman, I see in article 55 that the President or the judge who acts in his place shall have the casting vote if there is an equality of votes. That means that that particular judge has two votes in that instance, does it not ?
Mr. HACKWORTH. It might mean that, yes. If the Court is divided equally, he decides.
Senator TUNNELL. He votes again?
Senator BARKLEY. It could not happen that there would be a tie with a Court of 15 members. There would be a majority one way or the other.
Senator TUNNELL. If that one did not vote.
Mr. HACKWORTH. One might abstain from voting, and 14 would vote, then the President would cast a vote to break the tie.
The other provision that I wanted to call attention to has to do with amendments.
The Committee of Jurists that met in Washington felt that it was a great weakness in our present Statute of the Permament Court that there was no provision for amending the Statute. Considerable difficulty had been encountered in 1929 when an effort was made to amend the Statute, so as to enable the United States to become a party under the Senate resolution of 1926. The Committee of Jurists prepared a draft of an article providing for amendment of the Statute. The article was taken up at San Francisco and the formula decided upon was that amendments to the Statute should follow the same process as amendments to the Charter. You will see that article 69 states that amendments to the present Statute shall be effected by the same procedure as is provided by the Charter of the United Nations for amendments to that Charter.
There is one additional clause which is worthy of note, and that is this:
Subject, however, to any provisions which the General Assembly upon recommendation of the Security Council may adopt concerning the participation of states which are parties to the present Statute but are not Members of the United Nations.
The CHAIRMAN. The present Statute there refers to the old Court, does it not?
Mr. HACKWORTH. No; the present Statute refers to the new Court.
The CHAIRMAN. All right.
Mr. HACKWORTH. It was felt that since states may be allowed to become parties to the Statute without becoming Members of the United Nations, they should be allowed to participate in any amendment of the Statute. But that was safeguarded by providing that the General Assembly, upon recommendation of the Security Council, should determine the conditions under which those states might participate in such amendments.
There was another article added, article 70, providing that the Court should have power to propose such amendments to the present Statute as it might deem necessary, through written communications to the Secretary General for consideration in conformity with the provisions of article 69. Many participating in the discussion felt that article 70 was unnecessary, because the Court could always find a way to bring its suggestions to the attention of the International Organization. Others felt that the Court should have some express authority to make suggestions with respect to amendments. Hence, article 70 was incorporated.
Now, Mr. Chairman, unless there are questions, I think that I have probably given the high points with respect to the Court and the Statute. I would only add this short observation, that is that the Government of the United States has always stood for judicial settlement of disputes of a legal character, that it is now a party to a large number of treaties providing for arbitration, that it is a party to The Hague Convention of 1907 setting up an elaborate system for the arbitration of disputes, and that at the time our delegates were sent to The Hague Conference, President Theodore Roosevelt and Secretary of State Root gave them instructions to try to have the Court of Arbitration developed into an international court, the judges of which would sit permanently and engage in no other activity. It was not possible, however, to obtain such an agreement. Hence, the Convention of 1907 providing for the Permanent Court of Arbitration. It is not a court in the true sense of the word; it is merely a panel of jurists selected by the parties to the Convention from which arbitrators may be chosen by states to sit in an arbitration.
Nevertheless, I think that it is worthy of note that we did stand for the settlement of international cases by the judicial process; that we did try as far back as 1907 to establish a court; that such a court was established in 1922 and has been functioning ever since, and that while we did not go into that Court, there was strong sentiment in this country, as you well know, for our becoming a party. Here we have provision for a Court, in the creation of which we have played an important part. Speaking for myself and for those who have been associated with me in this work, I think that we cannot too strongly urge—and I am sure that those of you who participated in the San Francisco Conference share this view—that we have here provided for the creation of an International Court of Justice that will be worthy of the name, and one that will make a great contribution to the maintenance of international peace and security. The Court is not as spectacular as some of the other organizations provided for in the Charter, but we think that it will serve an extremely important purpose, and that an International Organization without such a Court would be lacking in a very important essential.
Senator BARKLEY. Is there any likelihood of confusion growing out of the fact that you are setting up here a new International Court of Justice and that there is still in existence a Permanent Court of Arbitration, which you say is not really á Court, and the Statute of the Court which has been in existence and to which we did not adhere? Is there any confusion likely to grow out of those three entities?
Mr. HACKWORTH. I do not think that there is likely to be any confusion, although the question of creating a new Court while a Permanent Court of International Justice is in existence was discussed at San Francisco, and it was recognized that it presented a problem, but not an insuperable one, for the reason that most of the states represented at San Francisco are parties to the Statute of the present Court. The present Court was created under the League of Nations, its expenses paid by the League, and so forth, and it was felt that the League would have an interest in terminating the present Court and arranging for the taking over of its duties by the new Court.
But however that may be, there will be if this Charter is approved, a new Court. There will not be a sufficient number of states outside the proposed United Nations Organization to support the present Court, and hence there will not be any great danger of having two Courts operating at one and the same time.
Senator BARKLEY. That is the point that was in my mind, that there is no provision in this Charter for the dissolution of the present World Court, which is a creature of the League of Nations. But under the Covenant of the League, as to which we are not a party, of course theoretically it could still exist if the League itself does not dissolve it. I assume that the League itself, if it is to continue in existence there may be some question about what will happen to it-would dissolve that Court and it would disintegrate and there would be only this one Court set up and in existence, and the other Court of Arbitration, which is not a Court in the same sense that this would be; but it would be most desirable, it seems to me, that the present Court should pass out of existence as soon as this system begins to function fully.
Mr. HACKWORTH. That is definitely in mind by members of the League who were represented at San Francisco; that is to say that the affairs of the League will need to be wound up and that the Court will be part and parcel of that process.
Senator TUNNELL. I just wanted to call your attention to article 25. The first paragraph thereof says:
The full Court shall sit except when it is expressly provided otherwise in the present Statute.
That is 15 judges, I take it? Mr. HACKWORTH. That is 15 judges. Senator TUNNELI. The second paragraph says: Subject to the condition that the number of judges available to constitute the Court is not thereby reduced below 11, the rules of the Court may provide for allowing one or more judges, according to circumstances and in rotation, to be dispensed from sitting.
That is, there cannot be any rule which would permit reduction