Senator WILEY. Only once in how long a time? Secretary HERTER. Since 1947. The CHAIRMAN. 1947. Senator WILEY. Twelve years. RULE OF LAW IN INTERNATIONAL AFFAIRS I should like to begin by speaking, for a moment, about the general subject of the rule of law. Stated in its most simple manner, the rule of law in international affairs refers essentially to a set of arrangements within which states can settle their unresolved differences by peaceful means and without resort to force. This conception of the rule of law was stated by the late Secretary Dulles as follows: We in the United States have from the very beginning of our history insisted that there is a rule of law which is above the rule of man. That concept we derived from our English forebears, but we, as well as they, played a part in its acceptance. * * * Thus, since its inception, our Nation has been dedicated to the principle that man, in his relationship with other men, should be governed by moral, or natural law. * * * We now carry those concepts into the international field. We believe that the results thus obtainable, though not perfect, are nevertheless generally fair, and that they are preferable to any other human order that can be devised. A most significant development of our time is the fact that for the first time, under the Charter of the United Nations, there has been a determined effort to establish law and justice as the decisive and essential substitutes for force. Let me at this point underscore the obvious proposition that the availability of impartial adjudication and resort to it cannot provide a cure for all of the problems which beset us in the realm of international affairs. One cannot eradicate poverty or disease merely by application to an international tribunal. Moreover, even with regard to those problems which, by their nature, are justiciable, it is clear that increased resort to adjudication is merely one of a number of steps necessary to promote an international atmosphere in which the exercise of force by any state is unthinkable. FURTHERING THE RULE OF LAW The President, writing to Senator Humphrey on November 17, 1959, stated: One of the great purposes of this administration has been to advance the rule of law in the world, through actions directly by the U.S. Government and in concert with the governments of other countries. It is open to us to further this great purpose both through optimum use of existing international institutions and through the adoption of changes and improvements in those institutions. Our continued participation in the United Nations and other international organizations is one way in which we are trying to further the rule of law. As you know, we have also been actively engaged in discussions at Geneva concerning the discontinuance of nuclear weapons tests. We are anticipating and preparing for the broader deliberations of the 10-nation disarmament committee which is to convene in March. 51053-60 HISTORICAL BACKGROUND UNDERLYING CREATION OF INTERNATIONAL COURT Let me turn now to the subject of international arbitration and adjudication and begin with a little of the historical background underlying the creation of the International Court of Justice as the principal judicial organ of the United Nations. The late 18th and 19th centuries saw the development of a pattern of ad hoc arbitration in cases in which a dispute between states could not be settled through usual diplomatic channels by negotiation, conciliation, good offices, or other means. Examples of successful arbitral settlements are furnished by the resolution of disputes arising from our treaty of peace with Great Britain of 1782-83, the United States-Canadian boundary dispute, and the Alabama claims. The Hague Conventions on Pacific Settlement of Disputes, signed in 1899 and 1907, constituted the initial attempt to regularize the arbitration system. These conventions, ratified by over 50 states including the United States, created a Permanent Court of Arbitration. This Court was actually a permanent panel of arbitrators to whom states could turn when they wished to resort to arbitration. The Court possessed no defined jurisdiction, and states which were parties to the conventions did not undertake any binding obligation to consent to the arbitration of international disputes. As in the case of ad hoc arbitration, it was still necessary to have an arbitral agreement in each case. The United States also entered into a number of bilateral treaty relationships providing for the arbitration of differences. Again, under these arrangements, a special agreement was required in each case for submission of a dispute to the tribunal provided for in the treaty. The League of Nations, created after the conclusion of World War I, envisaged the creation of the Permanent Court of International Justice, the immediate predecessor of the present International Court of Justice. The Permanent Court was quite similar to the present Court in its structure and jurisdiction. It did not possess a defined jurisdiction binding in all cases upon states which were parties to the Court's statute. Instead, article 36 of the statute contained a so-called optional clause under which states could make declarations accepting generally the Court's jurisdiction. This arrangement constituted a significant expansion in the scope of impartial adjudication by international tribunals. The United States, however, did not become a party to the statute of the Permanent Court. ESTABLISHMENT OF THE INTERNATIONAL COURT OF JUSTICE The San Francisco Conference, held in 1945 shortly before the conclusion of the Second World War, created the United Nations Organization and constituted a new Court, called the International Court of Justice, as the principal judicial organ of the United Nations. The records of the San Francisco Conference reflect an intensive and extensive debate on the question whether the new International Court should have compulsory jurisdiction over all legal disputes arising between states members of the United Nations. Although a large number of the states present at the Conference asserted that the Court should have such compulsory jurisdiction, it was decided to make the jurisdiction of the Court optional. AUTHORIZATION FOR U.S. ACCEPTANCE OF COURT'S COMPULSORY JURISDICTION After the Charter of the United Nations came into force, it was proposed in the Senate that the United States deposit a declaration accepting the compulsory jurisdiction of the new Court. Senate Resolution 196 of the 79th Congress proposed to recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes hereafter arising concerning— a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. As reported by the Foreign Relations Committee, Resolution 196 further provided that the declaration should not apply to a. disputes the solution of which the parties shall entrust to other tribunals by virtue of agreements already in existence or which may be concluded in the future; or b. disputes with regard to matters which are essentially within the domestic jurisdiction of the United States or c. disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States specially agrees to jurisdiction. The resolution further provided that the declaration should remain in force for a period of 5 years and thereafter until the expiration of 6 months after notice of its termination. ADOPTION OF CONNALLY AMENDMENT During consideration of the resolution in the Foreign Relations Committee, Senator Austin suggested that the provision withholding jurisdiction over domestic disputes be amended so as to include a selfjudging reservation similar to the subsequent proposal made by Senator Connally on the floor of the Senate. However, Senator Austin's proposal was rejected by the committee and Resolution 196 was unanimously reported by the committee for favorable Senate action without any self-judging reservation. The Senate began its consideration of Senate Resolution 196 on July 31, 1946. Shortly thereafter Senator Connally introduced his amendment which added the words "as determined by the United States" at the end of proviso "b" of Senate Resolution 196, so that it would read "disputes without regard to matters which are essentially within the domestic jurisdiction of the United States as determined by the United States." He stated his view that such a self-judging domestic jurisdiction reservation was necessary because the International Court might take a dangerously broad view of what was an international question and thus interfere with U.S. policy on immigration, tariffs, and matters relating to the Panama Canal. May I, Mr. Chairman, at this point, interject with the observation that Mr. Hager, who is the Legal Adviser of the State Department, is here with me, and if at a later date you wish to ask him any questions with regard to these three matters, which are rather pertinent I think to the whole controversy on this question, he will be prepared to testify. The CHAIRMAN. Thank you. Secretary HERTER. Senator Connally's amendment was adopted, and the United States, within these limits, declared itself bound by the compulsory jurisdiction of the Court. CRITICISM OF CONNALLY AMENDMENT Criticism of the amendment was soon voiced in the United States. And it became apparent with the passage of time and the gaining of experience that the self-judging aspect of our domestic jurisdiction reservation was disadvantageous to the United States. In 1946 and 1947, the American Bar Association adopted resolutions urging elimination of the proviso, reserving to the United States the unilateral right of determination as to what constitutes a matter essentially within its domestic jurisdiction. OTHER COUNTRIES ADOPTING SIMILAR RESERVATIONS The assertion by the United States that in every case arising within the compulsory jurisdiction of the Court, it reserved the unilateral right to determine whether the subject fell within the domestic jurisdiction of the United States-and thus lay beyond the jurisdiction of the Court-set an example of supercaution which was subsequently copied by several other countries. Mexico, France, Liberia, the Union of South Africa, India, Pakistan, and the Sudan proceeded to condition their acceptances of compulsory jurisdiction with self-judging domestic reservations. A similar action was taken by the United Kingdom in excluding from the Court's jurisdiction disputes which the United Kingdom determined to relate to questions affecting its national security or that of its dependent territories. This pattern, fortunately, did not become very widespread. Indeed, the trend has more recently been reversed, with India, the United Kingdom, and France reconsidering and dropping their selfjudging reservations. RECIPROCAL NATURE OF RESERVATION Next, I should like to call attention to another unfortunate effect of the self-judging reservation. It is now apparent that a nation which has such a self-judging reservation may have seriously limited its own ability to take other nations into the Court. This is illustrated by the Norwegian Loans case, which was decided by the International Court of Justice in 1957. Norway had floated public loans in France at the turn of the century. The bonds contained a promise to repay in gold or its equiva lent. After devaluation of the Norwegian currency, a dispute arose as to whether Norway had to comply with the gold clause. The parties could not agree, and since Norway had accepted the compulsory jurisdiction of the Court in 1946 and France in 1949, the French Government instituted proceedings against Norway by application in 1955. The French acceptance of the Court's jurisdiction contained a selfjudging reservation very similar to our own. The French declaration excluded "differences relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic." The Norwegian declaration contained no such reservation. Norway filed objections to the jurisdiction of the Court. One of these was based on the self-judging reservation of France, which Norway contended she was entitled to invoke on the basis of reciprocity. Norway claimed that the manner of repayment of the bonds was a matter essentially within the national jurisdiction of Norway, as understood by Norway. The Court upheld Norway's right to invoke her adversary's self-judging reservation and accordingly determined that it lacked jurisdiction. INCONSISTENT AND INCOMPATIBLE FEATURES OF RESERVATION It is clear that this type of reservation is inconsistent with the deeply rooted notion that no one should be a judge in his own cause. Moreover, a self-judging reservation is incompatible with the sixth paragraph of article 36 of the Statute of the Court, which provides that in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. DOMESTIC ISSUES ARE BEYOND COURT'S JURISDICTION Perhaps a reason for our insistence in 1946 upon a self-judging reservation may have lain in lack of experience with the new Court in operation and a fear that it might construe its jurisdiction expansively. Now we are able to see, in looking back over the 14 years which have elapsed since 1946, that the Court has acted conservatively in the matter of jurisdiction. Deletion of our self-judging reservation will not operate to give the International Court jurisdiction of domestic matters. There should be no misapprehension on this score. With the removal of the selfjudging proviso, our declaration would continue to be subject to the reservation that it is not applicable to "disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America." Secondly, article 36, paragraph 2, of the Statute of the Court specifically provides for compulsory jurisdiction only in legal disputes concerning a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. |