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I was just wondering what that meant as to the three suggestions.
Mr. HACKWORTH. The provision that, the rules of the Court may provide for allowing one or more judges, according to circumstances and in rotation, to be dispensed from sittingis a permissive provision. But there might be situations where judges would necessarily be absent on account of illness or on account of other reasons, and in that situation a quorum of nine could carry on.
Senator TUNNELL. So the Court may consist of any number from 9 to 15 ?
Mr. HACKWORTH. Yes.
Senator BURTON. The question I have to ask is merely following up the suggestion of Senator Barkley. After the establishment of the new Court, as to it being able to serve those nations which are not members of the United Nations, but are members of the old League, the provision contemplated, I take it, that they, under regulations to be laid down by the Security Council, can subject themselves to the jurisdiction of the new Court, although not becoming members of the United Nations?
Mr. HACKWORTH. That is right. The Security Council, under article 35, may decide the conditions under which they can come into Court. By article 93 of the Charter states not members of the United Nations may become parties to the Statute on conditions determined by the General Assembly upon recommendation of the Security Council.
Senator THOMAS of Utah. Senator White had asked the previous witness a question and he left it to Mr. Hackworth. I wonder if Senator White wants to renew his question?
Senator WHITE. I asked a question about advisory opinions, but it has been cleared up in my mind.
The CHAIRMAN. Senator Thomas, have you any question? Do you want to renew Senator White's question?
Senator THOMAS of Utah. Senator White asked a general question about the terminal facilities of the Charter, whether it was proper to enter into treaties without some arrangement whereby the treaties would come to an end and how long ey were to last. That is the way I understood the question, Senator White. If he has forgotten it, I will forget it.
Senator White. Mr. Chairman, I did ask a question some time back as to whether there were any precedents for a treaty which had no definite time of life stated in it or which made no provision for either denunciation or withdrawal of parties to the treaty. I thought if there were such precedents it might be well to have somewhere in the record a reference to them.
Mr. HACKWORTH. There are, Senator White, certain precedents of that kind. Some of the old treaties with France, the 1778 treaty, for example, contained no provision for termination. Congress by an act of July 7, 1798, declared the treaty to be no longer obligatory on the ground that France had repeatedly violated it.
It is a general rule that where one of the parties to a treaty violates it, the other party has a right to regard it as terminated.
A commercial treaty between the United States and the Congo, which remained in force after the extension of Belgian sovereignty over the Congo, contained a provision with respect to seamen. The act
of Congress of 1915, sponsored by the father of the present Honorable Senator La Folletté, contained provisions liberalizing the treatment of seamen. The President was requested to take steps to terminate all treaty provisions inconsistent with that act. We notified Belgium of our desire to terminate the article of the treaty having to do with seamen, whereupon Belgium suggested that the whole treaty should be terminated, to which we agreed. The treaty contained no provision for termination.
But I do not think we have any trouble here with respect to the Charter, for the reason that the provision that Dr. Pasvolsky referred to at page 48 of the Report of the Secretary of State seems to me ample to cover the situation. So far as withdrawing from the Charter is concerned, I think that the very fact that the matter was discussed and it was decided not to incorporate a provision in the Charter with respect to withdrawal, and the further fact that the working committee, and later, the full Commission, approved a statement that it was not the purpose of the Organization to compel Members to continue in cooperation with it, shows that the Conference recognized that a state should have the right to withdraw from the Charter. I do not think that there is any question about the authority of a state to withdraw under the circumstances indicated.
The CHAIRMAN. Let me ask you a semilegal question. While the terms of the Charter, of course, are predominant, and govern, there is a rule that contemporary construction of an instrument or of the terms of an instrument have very great persuasive if not coercive force. In this case, where the Conference itself and its commissions and committees adopted this clause about withdrawal, has it not almost the dignity that it would have if it had been actually placed in the Charter itself?
Mr. HACKWORTH. I should say, Senator, that that is correct. I say that for the reason that very frequently when treaties are entered into the parties interpret their provisions in separate documents. Sometimes they place their interpretations in protocols annexed to the treaty. At other times they make them in other ways, as by exchange of notes, and so forth. So that here you have, it seems to me, something that would stand on substantially an equal footing with the Charter itself, because that question was raised and was discussed and it was decided not to include anything in the Charter; but they agreed upon this formula which was approved by the working committee and by the Commission. I do not think that there is any question that any court of law would regard that as a legal interpretation of the right of a party to withdraw.
Senator AUSTIN. I would like to ask whether it has not occurred to the judge that unless some state in the process of advising ratification of this treaty expressly dissents to that provision, that provision is a part of the agreement.
Mr. HACKWORTH. I think that is a correct statement, Senator Austin.
Senator MILLIKIN. Judge Hackworth, did you say that the Statute is exclusive and that there would be no other legitimate ground for withdrawing?
Mr. HACKWORTH. I do not think that this provision places any inhibition upon a state with respect to withdrawal.
Senator MILLIKIN. There might be other legitimate reasons for withdrawal
Mr. HACKWORTH. There might be many reasons.
Senator MILLIKIN. Judge Hackworth, in trying to find some light on this subject myself I looked at Hackworth, volume V, page 299, and apparently in connection with our proposed adherence to the Permanent Court I find the following [reading]:
There is no implied right in any one party to a treaty to withdraw therefrom at will in the absence of specific provision for such withdrawal by denunciation or otherwise or unless another party to the treaty has violated it so substantially as to justify its termination. While there can be no question that the United States would have the power to withdraw from the Permanent Court at any time, still distinction between the power to take such action and the propriety thereof can be clearly drawn. I feel, therefore, that to avoid the possibility of future misunderstanding, and particularly to strengthen the re gard which should be had for international agreements, an appropriate reservation should be incorporated in the resolution by which the United States adheres to the Statue of the Permanent Court recognizing and reserving the right of the United States to withdraw from the Court.
I take it from the notations in that volume that that was from a memorandum transmitted by Assistant Secretary Olds to Senator Len. root in connection with the Permanent Court matter.
Then, going on, I find the following [reading]:
The authorities generally on the subject of withdrawal from international engagements of indefinite duration, where no specific provision is made for depunciation, appear to be rather unsatisfactory. Going on further:
There is certainly no general right of denunciation of a treaty of indefinite duration; there are many such treaties in which the obvious intention of the parties is to establish a permanent of things—for example, the Pact of Paris-but there are some which we may fairly presume were intended to be susceptible of denunciation, even though they contain no express term to that effect. A modus vivendi is an obvious illustration; treaties of alliance and of commerce are probably in the same case.
And at that point Brierly, Law of Nations (2d ed., 1936), 201, is cited.
I do not believe that there has been anything that you have said which conflicts with it in any way.
Mr. HACKWORTH. No; nothing at all. The statement by Mr. Olds to Senator Lenroot was made in 1925, and the Senate put in its resolution of 1926 a provision that the United States should be free to withdraw from adherence to the protocol concerning the Court at any time. That was the safe thing to do. But that does not derogate from the provisions contained in this statement approved by the committee and the Commission at San Francisco.
Senator MILLIKIN. I see two or three clear grounds for withdrawal in that statement, and I want to satisfy myself particularly that you do not think that those are the only grounds that may be asserted for a legitimate withdrawal.
Mr. HACKWORTH. No; I do not, Senator.
There seem to be no other questions, Mr. Hackworth. We thank you very much. We appreciate your testimony.
Mr. Hackworth rendered very outstanding service at San Francisco and worked very diligently with the Committee of Jurists before the Conference convened.
Are there any witnesses here who oppose the treaty and are anxious to get on at once? [No response.]
The purpose was to put on a couple this afternoon, but they indicated that they wanted to spend the night reviewing the Constitution so as to be able to testify, and we readily acceded to their request.
I will ask the audience to please retire. We have to hold an executive meeting.
Senator BURTON. There was a woman who raised her hand.
(Thereupon, at 4:15 p. m., the committee went into executive session.)