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H. CON. RES. 86
To establish a Special Committee on Advisory Opinions from the World Court.
IN THE HOUSE OF REPRESENTATIVES
MARCH 4, 1981 Mr. BINGHAM (for himself and Mr. PRITCHARD) submitted the following concurrent resolution; which was referred to the Committee on Foreign Affairs
CONCURRENT RESOLUTION To establish a Special Committee on Advisory Opinions from
the World Court.
1 Resolved by the House of Representatives (the Senate 2 concurring), That it is the sense of the Congress that the
3 President should
(1) direct the permanent representative of the United States to propose to the United Nations Gen
eral Assembly the adoption of a resolution which es
tablishes a special committee authorized
(A) to seek an advisory opinion of the Inter
national Court of Justice, upon request by a na
tional court or tribunal which is duly authorized
by national legislation to make such a request, re
party to the case before the court or tribunal re
(2) after the establishment of the special commit
tee, propose legislation to the Congress which
(A) authorizes Federal courts to request such
advisory opinions; and
(B) establishes procedures whereby any Fed
eral court may submit such requests to the special
AMENDMENTS To HOUSE CONCURRENT RESOLUTION 86 Strike out all after the resolving clause and insert in lieu thereof the following: That (a) the Congress finds that increased utilization of the International Court of Justice should be encouraged and that one means of increasing utilization of the Court would be to expand its advisory opinion jurisdiction to include questions of international law referred by national courts.
(b) Therefore, the President is urged to consider the feasibility of pursuing, through the United Nations, such an expanded advisory opinion jurisdiction for the International Court of Justice. In such consideration, the President
(1) should take into account the Department of State study, prepared in 1976 by the Office of the Legal Adviser, entitled "Widening Access to the International Court of Justice”, which 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 issues of international law; and
(2) should explore the appropriateness of the establishment of a special committee, under United Nations auspices, authorized to seek an advisory opinion of the International Court of Justice, upon request by a national court or tribunal which is duly authorized by national legislation to make such a request, regarding any question of international law of which such court or tribunal has
jurisdiction Amend the title of the resolution to read as follows: “Concurrent Resolut supporting an expansion of the advisory opinion jurisdiction of the International Court of Justice." [Mr. Bonker's prepared statement follows:
PREPARED OPENING STATEMENT OF Hon. Don BONKER House Concurrent Resolution 86, introduced by our distinguished colleagues Mr. Bingham and Mr. Pritchard, expresses the sense of the Congress that the U.Š. should take the initiative in the United Nations to expand the advisory opinion jurisdiction of the International Court of Justice to include questions of international law referred by national courts. This would be accomplished through the establishment of a special U.N. Committee charged with seeking advisory opinions from the ICJ, upon request by duly authorized national courts.
The Subcommittee on Human Rights and International Organizations held a hearing on H. Con. Res. 86 on September 24, 1981. Testifying at the hearing were Congressman Bingham, a representative from the State Department Legal Adviser's Office, and two representatives of the American Bar Association's International Law Section.
At the hearing the Subcommittee explored various questions about the legal and foreign policy implications of such an expansion of the ICJ's advisory opinion jurisdiction and its potential for promoting international law. While there was strong support for increasing use of the Court, concerns were raised about the feasibility of the proposal contained in H. Con. Res. 86 and about the specific way in which it should be pursued. For example, expanding the ICJ's advisory opinion jurisdiction could require amendment of the U.N. Charter and of the ICJ Štatute. The State De partment representative noted that consultations with our allies on this idea had produced mixed support.
Since the hearing the ABA's International Law Section, which spent two years studying the proposal, unanimously endorsed it. In February of this year, the ABA's House of Delegates adopted a resolution urging that the U.S. approve an expansion of the ICJ's advisory opinion jurisdiction to include questions of international law referred by designated national courts. A January 1982 ABA report notes: "The proposal would promote the objective of having international law assume an even greater role in the ordering of public affairs and would indicate the willingness of the U.S. to assume a leading role in accomplishing this objective."
This afternoon the Subcommittee will proceed to mark up House Concurrent Resolution 86. However, in order to accommodate the views expressed during the Subcommittee's hearing as well as issues that have been raised in subsequent discussions on H. Con. Res. 86, the Subcommittee Chairman and the Ranking Minority Member have prepared an amendment to the resolution. Mr. Bingham and Mr. Pritchard, as the original sponsors of H. Con. Res. 86, have no objection to the amendment.
The purpose of the amendment is: (1) to express the sense of the Congress that increased utilization of the ICJ should be encouraged; and (2) to urge the President 5
to consider the feasibility of pursuing the proposal contained in House Concurrent Resolution 86—the establishment of a special committee, under U.N. auspices, that would be authorized to seek advisory opinions of the ICJ, upon request by duly authorized national courts or tribunals.
In exploring the proposal the President is to consider the 1976 State Department study that endorsed this idea. The amendment would also change the title of the resolution.
The amendment that Representative Leach and I re offering reflects the central objective of House Concurrent Resolution. 86 while at the same time providing the Executive Branch flexibility in exploring ways to increase use of the Court, including the expansion of its advisory opinion jurisdiction through the creation of a spe cial committee. The amendment represents a reasonable balance between the goals of the original resolution and the various views expressed during the subcommittee's hearing. We will now proceed to consider House Concurrent Resolution 86.
Mr. BONKER. This subcommittee has considered this legislation at Mr. Bingham's request. We have conducted hearings, we have heard from the American Bar Association, and we have a resolution,
a House Concurrent Resolution 86, sponsored by Mr. Bingham, which is before the subcommittee.
At this time, I would like to offer on behalf of myself and the ranking minority member a substitute by way of an amendment to House Concurrent Resolution 86. Basically, the Bingham resolution would direct the U.S. Ambassador to the United Nations to seek to set up a Special Committee for the purpose of seeking advisory opinions from the International Court on behalf of National Courts. There are members of this subcommittee who feel that that language is too strong, or specific, so we have prepared an alternative draft which is before the subcommittee. It urges the President simply to consider the feasibility of pursuing through the United Nations, such an expanded advisory opinion jurisdiction for the International Court of Justice.
What we have done is to provide the President more discretion so that he can, at some point consider the feasibility of using a U.N. mechanism to seek advisory opinions from the Court.
Mr. BONKER. Mr. Leach has moved adoption of the substitute amendment the amendment to House Concurrent Resolution 86. Are there any comments or changes on the resolution?
If not, all those in favor signify by saying "aye.” Those opposed, "no." Without objection, then, the amendment in the nature of a sub
a stitute to House Congressional Resolution 86 and House Concurrent Resolution 86 are agreed to. (Whereupon, at 3 p.m., the subcommittee proceeded to other busi