The Trusteeship Council established under the new system should prove to be a more important and effective organ than the Permanent Mandates Commission in that its membership will be composed of states, represented by official, specially qualified persons, and it will be listed as one of the principal organs of the United Nations.

In the proposed trusteeship system more emphasis is placed on the positive promotion of the welfare of the inhabitants of the trust territories than in the mandates system, whose function was primarily negative and policing. Even in this latter respect, however, the new system, unlike the old, makes specific and formal provision for the power to accept petitions and the authority to make periodic visits to trust territories coming under the competence of the General Assembly.

SUMMARY

In brief, this chapter represents an agreement among the United Nations to set up an international trusteeship system which would make it possible for nations to continue to subscribe to the principle adopted at the end of the last war that neither the dependent territories detached from enemy states, nor the inhabitants thereof, should be objects of barter among victorious nations, or subject to exploitation by them, but should be administered in the interest of the native populations and in a manner which will provide equal economic opportunity for all nations.

All these objectives can be achieved while, at the same time, the security interests of the administering power, and of all the other United Nations, in any territories now under mandate which may be placed under the trusteeship system, or any that may be detached from the enemy and which may be placed under the system, will be fully safeguarded. There is a broad freedom of action, however, for the future policy of the United States vis-à-vis any such territories.

For the first time there has been incorporated in a multilateral agreement a broad statement of guiding principles respecting the administration of all dependent territories, together with special arrangements relating to security needs. These principles recognize the well-being and advancement of dependent people the world over as a proper concern of the community of nations.

THE INTERNATIONAL COURT OF JUSTICE

(Chapter XIV)

INTRODUCTION

Throughout its history the United States has been a leading advocate of the judicial settlement of international disputes. Great landmarks on the road to the establishment of a really permanent international court of justice were set by the United States. We submitted important differences with other countries to tribunals composed of arbitrators or judges selected for specific cases, or groups of cases, before an international court stood ready to receive the complaints of nations. At the Hague Peace Conferences of 1899 and 1907 the United States played a prominent part in the efforts to establish such a court but no generally acceptable plan could be devised at that time.

The organized structure for the maintenance of peace which statesmen attempted to establish at the end of the war of 1914-1918 included a Permanent Court of International Justice which was brought into being by the League of Nations. A prominent American participated in finding a formula for that court. Although not a member of the League of Nations, the United States signed the Protocol of Signature of 1920 to which was attached a Statute under which the new Court functioned, and in 1923 President Harding asked the Senate for its advice and consent to ratification. The Senate in 1926 stated certain reservations and conditions under which the United States might ratify. Over the course of nine years negotiations were carried on with the states which were parties to the Statute of the Court and with the League of Nations. The Statute was revised in an attempt to meet the views of the Senate but in a final Senate vote of January 29, 1935, the necessary two-thirds majority required for approval was not secured. The fact that the United States was not a member of the League of Nations to which the Permanent Court of International Justice was related was no doubt a principal reason for the objections to our participation.

As the United States becomes a party to a Charter which places justice and international law among its foundation stones, it would

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naturally accept and use an international court to apply international law and to administer justice. International law has long been criticized for its vagueness and its weakness; the Charter assigns to the General Assembly the task of promoting cooperation in its development and provides for a Court "whose function is to decide in accordance with international law". The International Court of Justice, which the Charter establishes, has an important part to play in developing international law just as the courts of England and America have helped to form the common law.

THE DUMBARTON OAKS PROPOSALS

The Dumbarton Oaks Proposals included in Chapter VII provision for the establishment of a court as "the principal judicial organ of the Organization". It was proposed that the Statute of such a Court should be annexed to the Charter and made a part of it and that all Members of the Organization should automatically be members of the Court. The conditions on which states not Members of the Organization might become parties to the Statute of the Court were to be determined in each case by the General Assembly on the recommendation of the Security Council. The Proposals left open the question whether this Statute should actually be the existing Statute of the Permanent Court of International Justice with such changes as might be desirable, or whether there should be a new Statute. But even if the second alternative were adopted, the Proposals said that the Statute of the existing Court should be used as a basis.

THE COMMITTEE OF JURISTS

The modification of the Statute of the existing Court, or the framing of a new Statute on the basis of the old one, was a technical task calling for the concentrated labors of a group of jurists. Accordingly, shortly after the Crimea Conference when the date for the San Francisco Conference was set, the Sponsoring Powers invited Members of the United Nations to designate representatives to meet in Washington on April 9 to prepare a draft of a Statute to be submitted to the Conference. Forty-four of the United Nations acted upon this invitation and the Committee of Jurists held sessions in Washington from the 9th through the 20th of April.

The Committee of Jurists did not undertake to decide whether the Permanent Court of International Justice should be continued or whether a new court should be established; the final answer to that question was left for San Francisco. But the Jurists did, in accordance with the provisions of the Dumbarton Oaks Proposals, take as the basis of their work the Statute of the existing Court. As a working rule it left well enough alone, making changes in the text under which the Court had operated for twenty-three years only where there was strong reason for doing so. Some changes were necessary to bring the statute into line with the framework of the new United Nations organization; some were technical improvements; and some were clearly indicated by the experience of the existing Court. Here the Committee had the advantage of the presence of three jurists who are or who have been judges of the Permanent Court of International Justice and of another who had been the Court's Deputy Registrar.

THE CHARTER

After a Committee of the San Francisco Conference had studied and worked over the report of the Committee of Jurists, which included a Draft Statute, it was found that so far as concerns the articles to be included in the Charter on this subject, little change in the Dumbarton Oaks Proposals was necessary although the one open question as to whether there should be a new court or whether the old court should be continued had to be finally answered and certain additions had to be made. In the seventy articles of the new Statute numerous points were dealt with and to these attention will be directed later.

OLD COURT OR NEW

What was Chapter VII of the Dumbarton Oaks Proposals becomes Chapter XIV of the Charter. The first article in the Chapter (Article 92) registers the important decision made upon the question "old court or new". In many ways this was the most difficult problem which confronted the Committee dealing with the Court. Opinions differed widely but all recognized that there were forceful arguments on both sides of the question. There was unanimous agreement that the Permanent Court of International Justice had rendered effective service and had made an excellent record. Fifty-one states had been

parties to the Court's Statute and the exercise of its jurisdiction had produced general satisfaction throughout the world. But sixteen of the states parties to the old Statute, including enemy states, were not represented at San Francisco, while a number of Members of the United Nations who were represented at the Conference were not parties to that Statute.

So far as enemy states are concerned, no difficulties were anticipated since changes in the old Statute could have been dealt with in the peace treaties, but a different solution would have been called for with respect to the neutral states. It was argued that a statute to which they were parties and the court operating under it could not be changed and taken over without their consent and yet it was obviously not feasible to include them in the deliberations of the San Francisco Conference of the United Nations. Moreover the provision in the Dumbarton Oaks Proposals (Article 93 of the Charter), which provides that states not Members of the United Nations can become parties to the Statute of the Court only on conditions laid down by the General Assembly on the recommendation of the Security Council, excludes the possibility that such states might automatically remain parties to the Statute by mere notification of acceptance of the new Statute.

The Conference Committee, having in mind the different considerations applicable to the various states which have not taken part in the war, was not disposed to depart from that provision of the Dumbarton Oaks Proposals. This conclusion was at least in some measure due to the fact that the new Court was to be an integral part of the United Nations organization, its Statute being annexed to and a part of the Charter itself, and all Members of the Organization being ipso facto parties to the Statute (Articles 92 and 93 of the Charter). To assure the establishment of the Court simultaneously with the establishment of the organization of which it is to be a part, it was thought that it would not be wise to risk protracted negotiations with the non-member states. On the whole, therefore, it was decided that a new Court should be established.

This decision does not "break the chain of continuity with the past", as the report of the Conference Committee puts it. Article 92 of the Charter recites the fact that the new Statute is based upon the Statute of the Permanent Court of International Justice. The number