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I have been asked to reply to your letter to Secretary Haig concerning H. Con. Res. 86, "to establish a Special Committee on Advisory Opinions from the World Court".
The United States traditionally has been among the strongest proponents of greater use of the International Court of Justice. It has recently taken the initiative in bringing important matters to the Court, chief among them our case against Iran concerning the seizure of the U.S. Embassy in Tehran and the detention of the American hostages, with respect to which the Court ruled in our favor. At the 1980 session of the World Health Assembly the United States also took the lead in proposing that certain legal questions as to the interpretation of the agreement between Egypt and the World Health Organization (relating to the WHO's regional office in Alexandria) be referred to the Court for its advisory opinion. The resulting opinion was a victory for the United States and Egypt in that it upheld the principle that a reasonable notice period was required before the organization's regional office could be removed from Egypt, and thereby, frustrated the attempt by certain Arab nations to punish Egypt by seeking the immediate removal of that office. Finally, as you know, the maritime boundary treaty with Canada, which has recently been approved by the Senate, provides for referral of the boundary dispute to a special chamber of the ICJ.
With particular reference to the proposal contained in H. Con. Res. 86, I would note that the Department of State has consistently supported proposals to broaden access to the International Court of Justice and most recently, in September, 1980, has expressed its support for s. Con. Res. 85, which was substantially similar to the current proposal. The Department expressed its views with respect to this matter originally in a study which was prepared in 1976, by the Legal Adviser's office, in response to Senate Resolution 78 of May 9, 1974. This study, entitled "Widening Access to the International Court of Justice", endorsed the idea of providing a procedure through which national appellate courts could, before rendering judgment in a case, have recourse to the International Court of Justice for an advisory "preliminary opinion" on
House of Representatives.
issues of international law. The study also provided the basis for the endorsement by subsequent administrations of the concept of widening access to the Court. See, the President's Report Pursuant to Section 503 of the Foreign Relations Authorization Act for fiscal year 1978, and the more detailed report of the Secretary of State which was appended to it.
However, the 1976 study noted that the proposed advisory "preliminary opinion" procedure would require amendment of the Statute of the International Court of Justice and the United Nations Charter. Opening the Charter or Statute to amendment, however, would have to be undertaken with care because of the possibility that it would provoke amendments inconsistent with United States interest.
The proposal contained in H. Con. Res. 86 (and in last year's s. Con. Res. 85) differs from that contained in the 1976 study in that under H. Con. Res. 86 a Special Committee of the General Assembly would be constituted for the purpose of seeking advisory opinions of the International Court of Justice upon request of a duly authorized national court or tribunal. It is arguable, but by no means certain, that the device of a Special Comnittee would obviate the necessity of a Charter or Statute amendment broadening the jurisdiction of the World Court. In any event, it would be necessary to pay careful attention to the structure and procedures of any Special Committee established for this purpose in order to ensure that it could not screen out cases that merit adjudication while permitting others to reach the Court..
Nevertheless, in the context of the existing Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, we believe that it would be advisable for the United States to propose that the approach reflected in H. Con. Res. 86 be given further study and that to this end the Secretary-General of the United Nations be requested to prepare a study investigating the following matters, among others:
(a) Other legal systems have had experience
(b) We think there should also be an investigation of the modalities, utility, and feasibility of the proposal, taking account of (1) the differences which would flow from having the International Court render an opinion of a nonbinding character, as compared with an opinion which would bind the requesting court, and (2) the desirability of affording to interested parties, including states as well as the parties to the controversy before the national court, an opportunity for the presentation of briefs and argument before the International Court.
(c). There should also be consideration of
We believe that possible presentation of a draft General Assembly Resolution as suggested by H. Con. Res. 86 should await the Secretary-General's study, as well as further study and analysis by the U.S. Government and by organizations in the United States concerned with the development of international law and the administration of justice, such as the American Bar Association.
The Office of Management and Budget advises that from the standpoint of the Administration's program, there is no objection the submission of this report.
AMERICAN BAR ASSOCIATION,
Chicago, Ill., February 8, 1982.
DEAR MR. CHAIRMAN: At the meeting of the House of Delegates of the American Bar Association held January 25–26, 1982 the attached resolution was adopted upon recommendation of the Section of International Law. The action taken thus becomes the official policy of the Association in this matter.
This resolution is transmitted for your information and whatever action you may deem appropriate. If hearings are scheduled on the subject of this resolution, we would appreciate your advising Robert D. Evans, Director of the American Bar Association Governmental Relations Office, 1800 M Street, N.W., Washington, D.C. 20036, (202) 331-2210.
Please do not hesitate to let us know if you need any further information, have any questions or if we can be of any assistance. Sincerely yours,
F. Wm. McCALPIN.