ARTICLE 36. COMPULSORY JURISDICTION The Committee of Jurists presented alternative texts of Article 36 dealing with the jurisdiction of the Court. One text followed that in the Statute of the Permanent Court of International Justice, leaving the acceptance of compulsory jurisdiction over legal disputes to the option of each state which is a party to the Statute; the other text provided for the immediate acceptance of such compulsory jurisdiction by all parties to the Statute. These texts were the subject of a long debate in the first Committee, which also had before it a draft providing for immediate acceptance of compulsory jurisdiction subject to stated reservations. The debate revealed a sharp division of opinion on the general question. On one side stress was placed on the progress made since 1920 under the Statute of the Permanent Court of International Justice; at one time or another 45 states exercised the option to confer compulsory jurisdiction on the Court, though in instances this was for limited periods of time and subject to reservations. The discussion in the first Committee showed, in the words of a subcommittee, "the existence of a great volume of support for extending the international legal order by recognizing immediately throughout the membership of the new Organization the compulsory jurisdiction of the Court". On the other side, the delegates of some states stated that their governments might find it difficult or impossible at this time to accept the compulsory jurisdiction of the Court, and they expressed their preference for the maintenance of the optional feature of Article 36. They felt that the adoption of this course would leave the way open for substantial advance toward the goal of universal jurisdiction, and that the Court would be placed on a firmer basis if the acceptance by states depended on their willing exercise of the option. In an endeavor to reconcile the two points of view represented by the alternative texts proposed by the Committee of Jurists, much support was given to the third draft above mentioned, providing for immediate acceptance of compulsory jurisdiction subject to stated reservations. Some of the delegates supporting optional jurisdiction were, however, unable to accept this compromise. Other suggestions were made for amending the text of Article 36 in the optional form by incorporating permitted reservations, with or without liberty to add others. These suggestions were also rejected. A subcommittee which made a report on the subject recommended the retention of the text in the Statute of the Permanent Court of International Justice with two changes designed to take into account the various views expressed by members of the Committee. The reference to "any of the classes" of legal disputes in paragraph 2 of Article 36 was omitted. A new paragraph 4 was inserted to preserve declarations made under Article 36 of the old Statute for periods of time which have not expired, and to make these declarations applicable to the jurisdiction of the new Court. In concluding its report, the Subcommittee made the following statement: The desire to establish compulsory jurisdiction for the Court prevailed among the majority of the Subcommittee. However, some of these delegates feared that insistence upon the realization of that ideal would only impair the possibility of obtaining general accord to the Statute of the Court, as well as to the Charter itself. It is in that spirit that the majority of the Subcommittee recommends the adoption of the solution described above. The following statement from the Subcommittee's report should also be noted: The question of reservations calls for an explanation. As is well known, the article has consistently been interpreted in the past as allowing states accepting the jurisdiction of the Court to subject their declarations to reservations, The Subcommittee has considered such interpretation as being henceforth established. It has therefore been considered unnecessary to modify paragraph 3 in order to make express reference to the right of the states to make such reservations. With the changes proposed in the text, the first Committee decided by 31 votes to 14 to retain the optional provision for compulsory jurisdiction. At the same time a majority of the members of the first Committee favored making the Court's jurisdiction compulsory, and some of these stated that they voted for the text only to achieve agreement. Formal declarations were made by several delegates to the effect that their votes did not indicate their state's views on the question of principle, as to which their states favored compulsory jurisdiction. These declarations were duly recorded in the minutes. The first Committee also adopted unanimously a resolution requesting a recommendation by the Conference that states parties to the Charter should proceed as soon as possible to make declarations under Article 36 recognizing the compulsory jurisdiction of the Court (see Annex 3).2. ARTICLE 38. LAW APPLICABLE The first Committee has adopted an addition to be inserted in the introductory phrase of this article referring to the function of the Court to decide disputes submitted to it in accordance with international law. The lacuna in the old Statute with reference to this point did not prevent the Permanent Court of International Justice from regarding itself as an organ of international law; but the addition will accentuate that character of the new Court. ARTICLE 65. ADVISORY OPINIONS The first Committee decided to insert a new paragraph as the first paragraph in this article, making explicit provision for the Court's giving advisory opinions at the request of such bodies as may be authorized by the Charter to request them. It is also proposed that a second paragraph of the article should embody the substance of paragraphs 1 and 2 of the old Statute without going into details as to the signing of requests. ARTICLES 69 AND 70. AMENDMENT The 1920 Statute included no provision for the procedure of its amendment. The Committee of Jurists deemed such a provision to be desirable, and it presented a draft based upon the provision in the Dumbarton Oaks Proposals for the amendment of the Charter. The first Committee wished to see no divergence in this respect between the Charter and the Statute which is to form a part of the Charter. Article 69 states that the procedure to be followed in amending the 2 Post, p. 855. Statute will be the same as that required for amending the Charter; it also envisages a possibility of participation in the procedure of amendment of the Statute by states parties to the Statute but not members of the Organization, on conditions to be determined by the General Assembly. The provisions of Article 4 with reference to elections were referred to in the discussion as an analogy for this latter provision. A new Article 70 will confer power on the Court itself to propose amendments, by communications addressed to the Secretary-General, for consideration conformably to the procedure of amendment. Articles approved by the Committee for inclusion in the Statute are set forth in Annex 2. Part IV. Conclusion On the basis of the texts proposed for the Charter and for the Statute, the first Committee ventures to foresee a significant role for the new Court in the international relations of the future. The judicial process will have a central place in the plans of the United Nations for the settlement of international disputes by peaceful means. An adequate tribunal will exist for the exercise of the judicial function, and it will rank as a principal organ of the Organization. It is confidently anticipated that the jurisdiction of this tribunal will be extended as time goes on, and past experience warrants the expectation that its exercise of this jurisdiction will commend a general support. A long road has been traveled in the effort to enthrone law as the guide for the conduct of states in their relations one with another. A new milepost is now to be erected along that road. In establishing the International Court of Justice, the United Nations hold before a war-stricken world the beacons of Justice and Law and offer the possibility of substituting orderly judicial processes for the vicissitudes of war and the reign of brutal force. ANNEX 1 TO REPORT OF RAPPORTEUR OF COMMITTEE IV/1 Provisions Dealing With the International Court of Justice Recommended by Committee IV/1 for Insertion in Charter Doc. 483, June 9 1. A tribunal to be called the International 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. The Statute is based upon the Statute of the Permanent Court of International Justice. 4. 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. 5. All parties to the Charter are ipso facto parties to the Statute of the International Court of Justice. 6. Conditions under which states not parties to the Charter may become parties to the Statute of the International Court of Justice shall be deter mined in each case by the General Assembly upon recommendation of the Security Council. 7. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. Such other organs of the Organization, and such specialized agencies brought into relationship with it, as may at any time be authorized thereto by the General Assembly, may also request advisory opinions of the Court on questions of a juridical character arising within the scope of their activities. 8. All members of the United Nations undertake to comply with the decision of the International Court of Justice in any case to which they are parties. 9. In the event of a state's failure to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council which may make recommendations or decide measures to be taken to give effect to the judgment. ANNEX 2 [Not printed; identical with the Statute as signed on June 26, post, p. 966.] ANNEX 3 TO REPORT OF RAPPORTEUR OF COMMITTEE IV/1 Doc. 870, June 9 The following reconmmendation was adopted by Committee 1 of Commission IV at its twentieth meeting, June 7, 1945: To ask the Conference of the United Nations to recommend to the members of the Organization that as soon as possible they make declarations recognizing the obligatory jurisdiction of the International Court of Justice according to the provisions of Article 36 of the Statute. ANNEX 4 TO REPORT OF RAPPORTEUR OF COMMITTEE IV/1 Doc. 918, June 12 The following recommendation was adopted by Committee 1 of Commission IV at its twenty-first meeting, June 11, 1945: That steps be taken by the appropriate authorities to have the documents of the Committee of Jurists printed. ANNEX 5 TO REPORT OF RAPPORTEUR OF COMMITTEE IV/1 Submitted by the United Nations Committee of Jurists Doc. 857, June 8; Committee of Jurists Doc. 86, April 25 The Dumbarton Oaks Proposals having provided that the United Nations International Organization should include among its principal organs an International Court of Justice, a Committee of Jurists designated by the United Nations met in Washington for the purpose of preparing and submitting to the San Francisco Conference a draft Statute of the said Court. The purpose of this report is to present the result of the work of this Committee. It could not in any way whatsoever prejudice the decisions of the Conference. The jurists who have drawn it up have, in so doing, acted as jurists without binding the governments which appointed them. The Dumbarton Oaks Proposals provided that the Court would be the principal judicial organ of the United Nations, that its Statute, annexed to the United Nations Charter, would be an integral part thereof and that all the members of the International Organization should ipso facto be parties to the Statute of the Court. It did not decide whether the said Court would be the Permanent Court of International Justice, the Statute of which would be preserved with amendments, or whether it would be a new Court the Statute of which would, however, be based on the Statute of the existing Court. In the preparation of its draft, the Committee adopted the first method, and it was recalled before it that the Permanent Court of International Justice had functioned for 20 years to the satisfaction of the litigants and that, if violence had suspended its activity, at least this institution had not failed in its task. Nevertheless, the Committee considered that it was for the San Francisco Conference (1) to determine in what form the mission of the Court to be the principal judicial organ of the United Nations shall be stated; (2) to judge whether it is necessary to recall, in this connection, the present or possible existence of other international courts; (3) to consider the Court as a new Court or as the continuance of the Court established in 1920, the Statute of which, revised for the first time in 1929, will again be revised in 1945. These are not questions of pure form; the last, in particular, affects the operation of numerous treaties containing reference to the jurisdiction of the Permanent Court of International Justice. For these reasons the draft Statute gives no wording for what is to be Article 1. DRAFT STATUTE Article 1 [For reasons stated in the accompanying report, the text of Article 1 has been left blank pending decision by the United Nations Conference at San Francisco.] The Committee has proceeded to a revision, article by article, of the Statute of the Permanent Court of International Justice. This revision consisted, on the one hand, in the effecting of certain adaptations of form rendered necessary by the substitution of the United Nations for the League of Nations; on the other hand, in the introduction of certain changes judged desirable and now possible. With regard to this second point, however, the Committee has considered that it was better to postpone certain amendments than to compromise by excessive haste the success of the present project for an International Organization, even though an eminent function pertains to the Court in the world Organization which the United Nations intend to construct in such manner that peace for all and the Brackets in original. |