Summary Report of Meeting of Commission and Doc. 82, May 4 The President of Commission IV, Mr. Caracciolo Parra Pérez (Venezuela), opened the meeting and thanked the delegates for his appointment as President of the Commission. It was pointed out that the purpose of this informal meeting was to organize the work of the Commission and of its two committees. The Chairman called attention to the labors of the conference of Jurists, which met in Washington prior to the opening of the present Conference, and noted that the Report of that conference and the proposed Statute of an International Court of Justice which was prepared there would form the basis for the work of Committee 1, as well as the Dumbarton Oaks Proposals. The President stated that the work of Committee 2 would be of a more indefinite character. It will relate to a variety of legal problems such as the registration of treaties, the juridical status of the general International Organization, privileges and immunities of international functionaries, and other legal questions. These are not touched upon in the Dumbarton Oaks Proposals but have been raised in comments and proposals submitted by participating governments. The Commission's duty, according to the President, would be to consider reports from the committees after they have completed their deliberation and to report its decisions to the plenary sessions of the Conference. Officers of the Commission and of the Committees were introduced. The President stated that Mr. Gustavo Herrera (Venezuela) would act as President in case of his absence. Abdel Hamid Badawi Pasha (Egypt) stated that Ibrahim Bey Abdel Hadi would substitute for him as Chairman of Committee 2 in case of absence. Mr. Gallagher (Peru) said that he would name his substitute later. Note was made of the fact that some delegations with a limited number of delegates would find it difficult to attend committee meetings if several meetings were scheduled at the same time. It was agreed that the rules of procedure of the Conference should apply to the Commission and to its committees, subject to the adoption by the Commission and the committees of such supplementary rules as may become necessary. The basic documentation for Committee 1 will consist of: 1. The Dumbarton Oaks Proposals (Chapter VII); 2. The Report of the Committee of Jurists, including the proposed Statute of the International Court of Justice; 3. Proposals and comments of various governments received or validated since the beginning of the Conference. The basic documentation for Committee 2 will consist of proposals and comments presented by the participating governments on various legal problems not touched upon in the Dumbarton Oaks Proposals. In addition to the basic documentation the committees will be free to consider observations and amendments which the delegates present to them during the course of their work. It was agreed that the initial meetings of the committees of Commission IV will take place as follows: Committee 1, Friday, May 4, 3 p.m. Committee 2, Saturday, May 5, 10:30 a.m. It was noted that committee meetings are to be held in private, and that the Commission president and the committee chairman may meet with the press after meetings to inform them of the progress made. Report of Subcommittee IV/1/A to Committee IV/1 on the Question of Continuity of the International Court and on Related Problems Doc. 477, May 22 TO THE CHAIRMAN OF THE FIRST COMMITTEE OF THE FOURTH COM MISSION: The Committee over which you preside considered it convenient that a subcommittee should be constituted to report on the text of Articles 1 and 37 of the Statute of the Court and for such purpose we had the honor of being appointed members of the mentioned Subcommittee. Article 1 of the Statute of the Court raised the fundamental question which it was necessary to determine: Should the Court be a continuation of the old Court constituted by the League of Nations, or should it be an entirely new Court? The Committee over which you preside had also to determine the points considered in Chapter VII of the proposed Charter of the United Nations Organization, in paragraphs 1, 2, and 3, of which the question to which reference has been made is presented. The Subcommittee has, in the first place, studied this familiar question. It is a problem that involves serious difficulties and neither of the two solutions can be perfect. The Committee recommends that a new Court be created. In reaching this conclusion, it was influenced by the following considerations: (a) Under Chapter VII, paragraphs 4 and 5, all members of the Organization are ipso facto to be parties to the Statute, but states not members of the Organization can only become parties to the Statute on conditions laid down in each case by the General Assembly upon recommendation of the Security Council. (b) Certain delegations stated that, in their opinion, this position must be maintained and that the Charter would not otherwise be acceptable. Their governments would not be prepared to permit certain states, which are parties to the present Statute but which are not members of the United Nations, to participate with the members of the United Nations in such matters as nomination of judges. (c) Of the 48 existing states which are parties to the Statute of the Permanent Court of International Justice, 17 are not members of the United Nations, 8 of them having been enemies and 5 neutral during the present war. In addition, 13 present members of the United Nations are not parties to the Statute of the Permanent Court of International Justice. (d) If the old Court is continued, all the present parties to the Statute would, according to the established rules of international law, have the right to adopt the modifications now proposed by the United Nations, and thereby to remain parties to the Statute. In the case of enemy states, it would be possible as part of the conditions of peace to terminate their rights under the Statute; in the case of other states, this would not be possible unless they were to agree to it. (e) From this conclusion it follows that, in the case of certain neutral states at any rate, the exclusion from participation in the Statute of the Court which is clearly laid down by Chapter VII, paragraph 5, of the draft Charter could probably not be accomplished without some breach of the accepted rules of international In making this recommendation the Subcommittee is glad to propose that the fullest use should be made of the valuable experience and achievements of the Permanent Court of International Justice during the period since the close of the First World War. The articles of the draft Statute already approved by the Committee itself are in themselves sufficient to indicate the debt of the United Nations to the experience of the Permanent Court-not only in respect of constitution but also in matters of jurisdiction, organization, and procedure. It should be noted that even the numbering of the Statute of the Permanent Court is being preserved. It is also to be noted that under articles already approved, the Committee is recommending that, under the Charter of the United Nations as under the Covenant of the League, the headquarters of the International Court should be at The Hague. The Committee also deems it advisable to call attention to the following considerations which were discussed in its meeting as problems presented by the discontinuance of the old Court: (a) It is necessary to determine the situation of that Court, of its judges, and of its property. The creation, for the purposes of the new Organization and as between the members of the United Nations, of a new Court will not of itself in any way affect the old Court, nor put an end to the existence of the latter. Since, however, it is impossible to contemplate the existence of two World Courts, each with its seat at The Hague, et cetera, it is clear that at the earliest possible moment steps will have to be taken to bring the old Court to an end, and make adequate provisions for pensioning its judges and officials in so far as these are not elected or transferred to the new Court. Provision will also have to be made for continuing to pay the pensions already accrued to former judges and officials of the old Court. It would not be possible in this report to go into all the details of this matter or to suggest the means of dealing with it. But it is one which will require to be dealt with by whatever means are considered to be suitable, e.g. by the United Nations entering into negotiations with the appropriate bodies for this purpose. (b) Another important point is that of the numerous treaties which specify the old Court as the court to which disputes as to the interpretation or application of the treaty are to be referred. So far as members of the United Nations are concerned, it could be provided in Article 37 of the revised Statute that any references to the old Court shall henceforth, as between members of the United Nations, be deemed to be references to the new Court. But this will not, of itself, affect the position as between members of the United Nations and non-members, and in such cases the old Court would remain the one to which the treaty concerned had reference. This would obviously create an impossible situation, for in theory it could easily result that a dispute under a given treaty, affecting both members and non-members of the United Nations, might simultaneously have to be referred to two different World Courts which might give divergent decisions. From a purely practical point of view this problem would be solved by the disappearance of the old Court as a result of the action suggested above. But some time may elapse before this takes place. It would seem desirable, therefore, that negotiations should be entered into between the parties to the various treaties concerned, in order to arrive at a general agreement for the reference of any disputes to the new Court. The General Assembly of the new Organization might be asked to undertake the conduct of these negotiations on behalf of its members, or at any rate to create machinery for facilitating them. (c) Another point is that of the fate of the existing signatures of the "optional clause" which, of course, has reference to the old Court. The Committee discussed this point, but as it will come up in connection with the question of compulsory jurisdiction in Article 36, it did not think it necessary to deal with it here. After considering the reasons advanced for and against the two alternatives, the Subcommittee decided by a vote of 7 to 3 to recommend that the Court should be a new institution, believing that the consequences of the other solution would be more grave, from the point of view of international law and for practical reasons. The Subcommittee considers that this decision affects not only the Statute of the Court but also Chapter VII of the Proposals of Dumbarton Oaks. Since the Committee must study the contents of Chapter VII, the Subcommittee proposes that Articles 1, 2, and 3 of Chapter VII should be drawn up on the following lines: (1) A tribunal to be called Internatianal Court of Justice is hereby established as the principal judicial organ of the United Nations. (2) The Court shall be constituted and shall function in accordance with the annexed Statute which forms an integral part of the Charter of the United Nations. (3) Nothing in this Charter shall prevent the parties 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. The view was expressed that Articles 4 and 5 of Chapter VII of the Dumbarton Oaks Proposals will be considered at the opportune time by the Committee-whether to approve them exactly as they have been drawn up or to amend them in such a way as the Committee may decide. As a result of what has been said it would seem that it is not necessary that Article 1 of the Statute of the Court should contain any reference to the quality or condition of the tribunal and we propose that its language be the following: Article 1 The International Court of Justice established by Chapter VII of the Charter as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the following provisions. As a result, also, of the foregoing, and of the resolution recommended, it will be convenient to reform the language of Article 37 as follows: Whenever a treaty or convention in force between the parties to this Statute provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice established by the Protocol of December 16, 1920, amended September 14, 1929, the matter shall be referred to the International Court of Justice. The point was made with reference to Article 37 that certain existing agreements conferred powers upon the President of the Court, and it was thought that appropriate provision might be made in the article. However, it was thought that the interpretation would be clear, and it was decided not to include this reference in the article. Thus, we fulfil the mission entrusted to us. We thank the delegates for the confidence which they have placed in us and we express to you on this occasion our sentiments of special esteem. Report of Subcommittee IV/1/C to Committee IV/1 Concerning Articles 8-12 of the Proposed Statute of the International Court of Justice Doc. 558, May 25 The Subcommittee proposes to the Committee that Articles 8-12 of the draft proposals of the Committee of Jurists of Washington be left unchanged except for the following modifications relating to Articles 10 and 12: Article 10 The Subcommittee proposes that there be inserted between paragraphs (1) and (2) of this article a new paragraph as follows: The vote of the Security Council, whether for the election of judges or for the election of members of the conference envisaged in Article 12 hereunder, shall be taken without any distinction between permanent and non-permanent members of the Council. The new paragraph will be paragraph (2) and the present paragraph (2) will become paragraph (3). Article 12 The Subcommittee proposes to modify paragraph (1) of this article as follows: ... for the purpose of choosing by the vote of an absolute majority one 665605-4654 |