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TO ESTABLISH A SPECIAL COMMITTEE ON ADVISORY OPINIONS FROM THE WORLD COURT

TUESDAY, DECEMBER 14, 1982

HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,

Washington, D.C. The committee met in open markup session at 9:45 a.m., in room 2172, Rayburn House Office Building, Hon. Clement J. Zablocki (chairman of the committee) presiding.

Chairman ZABLOCKI. We meet this morning to consider various bills and resolutions reported from the subcommittee to the full committee.

(Whereupon, the committee proceeded in consideration of other business.]

Chairman ZABLOCKI. The next order of business consists of two resolutions reported by the Subcommittee on Human Rights and International Organizations. These resolutions are House Concurrent Resolution 86, to establish a Special Committee on Advisory Opinions From the World Court, and House Concurrent Resolution 433 concerning religious persecution.

The Chair will recognize Mr. Bonker, the distinguished chairman of the subcommittee, to explain these two resolutions, Mr. Bonker.

Mr. BONKER. I thank the chairman.

House Concurrent Resolution 86 is authored by our colleague Mr. Bingham and supported by Mr. Pritchard on the other side. It would not necessarily set up any committee, but merely provides that the United States should take the initiative in the United Nations to expand the advisory opinion jurisdiction of the International Court of Justice. This could be accomplished through, if it is fulfilled, the creation of a special U.N. committee charged with seeking advisory opinions from the ICJ upon request from authorized national courts.

The subcommittee has held hearings on this resolution, which we marked up on December 1 of this year. The subcommittee agreed to an amendment that was drafted by Mr. Leach and myself, which I will offer at the appropriate time.

Both Mr. Bingham and Mr. Pritchard, as I understand it, support this amendment, which reflects the central objective of the resolution about expanding the ICJ's advisory opinion jurisdiction, but at the same time would give to the executive branch the flexibility it wants in exploring ways to increase the use of the Court's advisory opinion procedure.

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The resolution is a sense of Congress that increased utilization of the ICJ should be encouraged, a goal which I believe most members on this committee support.

Mr. BINGHAM. Would the gentleman yield?

Mr. BONKER. I will be glad to yield to the gentleman from New York, the principal sponsor of this resolution.

Mr. BINGHAM. I thank the gentleman for yielding.

I am grateful to him and the members of the subcommittee for the work they have done on this resolution. I have, as he said, no objection to the proposed amendment which renders this a very mild recommendation indeed.

I would just like to add to what the chairman of the subcommittee said. This effort to improve and expand the procedure whereby advisory opinions can be obtained from the International Court of Justice originates with the American Bar Association's Section on International Law. We worked closely with them at all stages of the consideration of this resolution.

It is envisaged by that expert group that it would be helpful to have such a procedure. It would be used only with the consent of the litigants involved. It would give to the International Court, which in recent years has had on many occasions very little to do, additional importance to its work.

I wanted to emphasize that this is something which is strongly recommended by the group in the American Bar Association that is expert in the field of international law.

Chairman ZABLOCKI. If there is no further discussion, the chief of staff will read House Concurrent Resolution 86.

Mr. Brady (reading]: H. Con. Res. 86, a concurrent resolution to establish a Special Committee on Advisory Opinions From the World Court.

Resolved by the House of Representatives (the Senate concurring), That it is the sense of the Congress that the President should

Chairman ZABLOCKI. The gentleman from Washington.

Mr. BONKER. Mr. Chairman, I ask unanimous consent that the resolution be considered as read and open for amendment at any point.

Chairman ZABLOCKI. Is there objection?
The Chair hears none. It is so ordered. 1

The Chair understands that the gentleman from Washington has an amendment.

Mr. BONKER. Mr. Chairman, I would like to offer an amendment.

Chairman ZABLOCKI. The gentleman is recognized. The staff will distribute the amendment. The gentleman from Washington will explain his amendment.

Mr. BONKER. Mr. Chairman, this amendment, briefly, moves from the language in the original resolution, which would direct the permanent representative of the United States to propose to the U.N. General Assembly the adoption of a resolution which would establish a Special Committee on Advisory Opinions from the ICJ.

See page 2 for text of resolution.

The amendment that we are offering would simply urge the President to consider the feasibility of pursuing through the United Nations an expanded advisory opinion jurisdiction for the ICJ. What we have attempted to do is to allow the executive branch more flexibility in dealing with this matter.

I move adoption of the amendment, Mr. Chairman.

Chairman ZABLOCKI. It is a rather lengthy amendment. However, the Chair understands that it is not controversial. So the Chair will ask unanimous consent that the amendment be considered read and printed in the record. Is there objection?

[No response.]

The Chair hears none. Without objection, the amendment will be printed in the record. 1

The question now occurs on the amendment offered by the gentleman from Washington. All those in favor will signify by saying "aye.”

Chorus of "ayes."]
Chairman ZABLOCKI. Opposed, “no."
[No response.]

Chairman ZABLOCKI. The "ayes" have it. The amendment is
agreed to.
Mr. HYDE. Mr. Chairman.
Chairman ZABLOCKI. The gentleman from Illinois, Mr. Hyde.
Mr. HYDE. I move to strike the last words.
Chairman ZABLOCKI. The gentleman is recognized.

Mr. HYDE. I think before we adopt it, and I am confident we are going to adopt this, there ought to be some understanding of some of the problems with this resolution.

The Justice Department has a concern that the procedures for obtaining an International Court of Justice advisory opinion simply mean longer delays in court cases, in actual disputes that are being litigated, while waiting for the advisory opinion.

International law questions rarely arise in the abstract, but involve the interplay of domestic and international law. Many of these cases are issues of international law that involve the U.S. Government as a party.

We are trying to hold the line, not to say cut back on our contributions to the United Nations which already are 25 percent. This initiative would certainly raise the specter of our having to come up with more money to finance the U.N. budget.

Does this require an amendment to the U.N. Charter? We don't know. If it does, will that open the door for other proposed amendments from other U.N. members which could be of very grave consequence potentially to our interests?

If our courts, the U.S. courts, reject the International Court of Justice advisory opinion, what will that do to the prestige and reputation of the International Court of Justice?

Aren't we detracting from rather than enhancing its stature?

Why are we pushing this rather important proposal through Congress now? We had only one hearing at which the American Bar Association lobbyists testified, and the State Department testified. I think this is of sufficient importance to wait for the new Congress to consider it and understand its ramifications.

2 See page

We received some written testimony from the former chairman of the Committee on International Litigation of the ABA's section on litigation, expressing sympathy for increased use of the International Court of Justice, but raising concern over the significant delays and costs which would be added to the U.S. legal process without commensurate benefits.

I might point out that we don't have advisory opinions in our Federal court system. This is not a simple question. I do not oppose the resolution, but I think these concerns ought to be laid before the full committee, so we can all understand what we are doing.

Chairman ZABLOCKI. Would the gentleman yield?
Mr. HYDE. I yield to the chairman.

Chairman ZABLOCKI. It is the Chair's understanding that this is a sense of Congress resolution. It does not establish a Committee on Advisory Opinions From the World Court, but merely that it be brought up to the United Nations for the consideration of establishing such. A committee would be formed to study this proposal. It is not finalized. It is not mandatory. It is just a sense of Congress.

Mr. HYDE. I consider that its saving grace.

I am informed that the State Department has already told us that this issue was raised at the Special Committee of the Charter of the United Nation where it received very little support.

I have no objection to it being further considered, but I think the consequences of what we do ought to be laid before the committee.

Mr. BINGHAM. Would the gentleman yield to me?
Mr. HYDE. I will be happy to yield to Mr. Bingham.

Mr. BINGHAM. I would just like to point out that in the form in which we are proposing now to move, it does not even favor the establishment of a committee at the United Nations. It is simply asking the President to consider the advisability of pursuing the idea of expanding the advisory opinion jurisdiction. Certainly whatever qualms the Department of Justice has can be brought into that process.

Second, clearly it would not call for an amendment to the Charter. I agree with the gentleman that that would not be something we would want to move toward.

Third, in terms of concerns that the litigation section had earlier, I think they were resolved in the process of considering this, particularly with the idea which is implicit in what the American Bar Association is pressing for, that this would not be done without the consent of both litigants to it.

Mr. HYDE. If I may just briefly say, I intend to support the resolution. Some of us may have seen the segment on 60 Minutes about the jailhouse lawyer who goes up and down the court system with appeals and lawsuits. The more courts you get into a controversy, or a potential controversy, the farther away you get from resolving it. At least from the side that is disaffected from the way things are going, he has got another forum to appeal to and delay things.

Mr. SHAMANSKY. Would the gentleman yield?
Mr. HYDE. Yes, in just a moment.

I simply say that we ought to bear this in mind. I intend to support it, I think it has merit.

I yield to my friend from Ohio.

Mr. SHAMANSKY. This is a way of avoiding direct litigation and getting a court involved, where the parties have to take much more formal, confining, stronger positions. The use of an advisory opinion is to permit the parties to negotiate, and it is an out for them rather than involve them in long formal litigation. We have an American Arbitration Association, to which this would be comparable. This is an alternative to going into direct litigation.

Mr. HYDE. It may well be. It is an advantage to the advisory procedure, if litigants care to be bound by an advisory procedure.

Mr. SHAMANSKY. It is by definition advisory, and I am sure, as this contemplates, the parties agree to submit this for an advisory opinion. It is just simply one more tool. It adds versatility where you don't have quite that versatility today.

Mr HYDE. I thank the gentleman for his contribution. I yield back the balance of my time.

Chairman ZABLOCKI. The question occurs on House Concurrent Resolution 86 as amended. All those in favor signify by saying "aye."

(Chorus of “ayes.”]
Chairman ZABLOCKI. Opposed, "no."
[No response.)

Chairman ZABLOCKI. The “ayes” have it. House Concurrent Resolution 86 is approved. 1

[Whereupon the committee proceeded to other matters.]

'H. Con. Res. 86 passed the House of Representatives on Dec. 17, 1982.

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