REASONS FOR SUPPORT OF SENATE RESOLUTION 94 We have stated the above because we feel that this background is fundamental to any consideration of Senate Resolution 94. Passage of this resolution would remove the United States from the position of demanding to be the judge in its own case. It would remove the self-judging clause from our adherence to the jurisdiction of the International Court of Justice. We would join the 32 nations which have already accepted the compulsory jurisdiction of the Court without this reservation and would leave the company of the 5 nations, other than ourselves, which still maintain this reservation: Mexico, Liberia, Pakistan, the Sudan, and the Union of South Africa. We would join our close allies, the United Kingdom and France, in their support of the Court and the rule of law. United World Federalists hopes that we will take this step forward and supports Senate Resolution 94. We consider this step a very significant and important one. It is a step in the right direction. We believe it will be beneficial to the United States and will show the world by deed that we desire to substitute the rule of law for the rule of force. Indeed, I would say that the passage of this resolution would, in the field of world opinion, be as effective as the firing of the rocket by the Russians in the Pacific prior to the summit meeting. PROTECTION OF LAW FOR BUSINESS INTERESTS Within our country we have a vast industrial complex and millions of private and business interests. These could not operate and flourish as they do if it were not for the certainty and protection afforded by city, State, and Federal laws. How many thousands of cases are handled every year by the courts of our country? And we have got to accept this as a part of our everyday life. Likewise today, U.S. business interests have billions of dollars invested overseas and vast new potential investment areas are opening up. If these interests are to have the protection of law, it is essential that the international law be further developed and international courts be available for just adjudication of grievances. Because of the position our country occupies today, we have more overseas interests, more treaties, and more citizens traveling abroad than any other nation in the world. We therefore have more need for the protection of law abroad than any other country. Since the International Court of Justice has ruled that any reservation made by a party to a dispute may be used by all other parties, we have placed ourselves, by this reservation, in the position of giving any nation against which we feel we have a just claim the legal right to claim that the matter is solely within its domestic jurisdiction and thus to cause the Court to throw out our case. Since it is we who have so many farflung interests, this is just not good business. LIMITATIONS ON COURT'S JURISDICTION Were there indications either legally or in past practices that the Court might attempt to exceed its authority or area of jurisdiction, we would be concerned. We know of no such indications. An August 1959 report of the American Bar Association's Section of International and Comparative Law states: The cases decided by the Court do not indicate any lack of judicial or judicious discretion by the Court. On the contrary, the Court has seemed quite reluctant to extend its jurisdiction. Further, this jurisdiction is carefully set forth and circumscribed: (1) It is limited to "legal" disputes involving "international" matters; (2) it exists only "in relation to any other state accepting the same obligation"; (3) it excludes domestic disputes and this is further buttressed by the provisions of article 2 of the United Nations Charter of which the Statute of the Court is an integral part. CHOICES So long as our country continues to limit its adherence to the International Court of Justice by this self-judging condition, we make a mockery of our own professions of adherence to the principle of a rule of law. We believe that there are basically only two choices: To do nothing and leave the initiative to those who live by the rule of force, abhorring the majesty and power of law, or to move decisively forward to promote the rule of law and a system of justice that will buttress the basic values of the free world. United World Federalists chooses the latter alternative. We support the measure before your committee. I have also brought some photostat copies from the Encyclopedia Britannica discussing the Permanent Court of International Justice, and also discussing the International Court of Justice, and I would like to have leave to present those to the committee because I think they have a great deal of fine background information. The CHAIRMAN. Thank you very much, Mr. Walter. BASIS FOR RECIPROCAL NATURE OF RESERVATION Senator HICKENLOOPER. Just one question, Mr. Walter. Where lies the basis for the Court's decision that a party which has no reservation may exercise that reservation if another party has made such reservation, as in the Norway case against France? Mr. WALTER. The Norway case against France is where the issue was raised, and it was after that issue was raised that France took its reservation out of its exception. Senator HICKENLOOPER. Did France take the reservation, exercise the right, or did Norway exercise its right? Mr. WALTER. No; Norway exercised its right. Senator HICKENLOOPER. Well, where lies the basis for Norway's exercising its right? Mr. WALTER. It goes back to a fundamental principle of law that where one person has a reservation in a contract to protect himself, in equity the other person has the same right. This is an American basic concept. I presume that is why they acted upon it. statements of various decisions of judges and parent that some of the judges feel that way. Apparently from the their decisions, it is ap Senator HICKENLOOPER. Of course there is now nothing in the Statute that gives that right? Mr. WALTER. I understand so, and perhaps the Statute would even override, since we accepted the basic U.N. Charter, and perhaps the Statute overrides our reservation. That is a question that might be decided by the Court some day, I do not know. But I do believe that we are in a position of saying to the rest of the world that we have a fundamental belief in the fairness of courts and, certainly, I, as a Republican and I try cases in front of Democratic judges, and you raise questions of jurisdiction before them, and you believe there is a basic fundamental honesty in our judicial system-feel that if these questions are raised, the type and caliber of men who are placed on the bench or the method by which they are chosen, and there are specific provisions in the U.N. Charter as to how these judges are chosen, and the people they may represent, that I would be far more willing to trust my faith to a court than I would to a firing squad. Senator HICKENLOOPER. Well, I do not quite get the analogy, but we will not take the time to argue that. Mr. WALTER. No; we will discuss that later. Thank you. Senator HICKENLOOPER. That is all. The CHAIRMAN. Thank you very much, Mr. Walter. (Attorney General Rogers' address to the American Bar Association at Miami, Fla., August 1959, and the excerpts from the Encyclopedia Britannica referred to above follow :) [Excerpts from the American Bar Association Journal, August 1959] OUR GREAT GOAL: PEACE UNDER LAW Attorney General William P. Rogers' address to the American Bar Association at Miami, Fla., August 1959 First, the administration of justice in the United States is on display in every part of the world. When we talk about competing with international communism in the realm of ideas, we are talking in large measure about the ideas which are the basis of our legal system. Second, in the long view the main hope for peace is that nations will be wise enough not to rely on sheer strength in dealing with each other but will move toward establishing systems based on considerations of law and justice in the resolution of international disputes. Nations have readily paid lipservice to the soundness of this proposition but progress in this area has been tragically slow. The United States accepted the jurisdiction of the International Court in 1946. The history of our declaration of acceptance is significant. The resolution introduced in the Senate with bipartisan support contained a reservation excluding from the Court's jurisdiction "Disputes with regard to matters which are essentially within the domestic jurisdiction of the United States." Public hearings were conducted on the resolution in this form, and it was unanimously endorsed by the Senate Committee on Foreign Relations. Its report stated: "The question of what is properly a matter of international law is, in case of dispute, appropriate for decision by the Court itself, since, if it were left to the decision of each individual state, it would be possible to withhold any case from adjudication on the plea that it is a matter of domestic jurisdiction." Nevertheless, on the floor of the Senate the Connally amendment was adopted adding to our reservation the clause "as determined by the United States of America." Thus, in the declaration of acceptance by the United States our reservation is that the Court shall not have jurisdiction of "disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America." We were the first nation to provide that the jurisdiction of the Court should be determined not by the Court but by us. Following our example seven other nations made similar reservations. Furthermore, the rule of reciprocity applies so that any nation may invoke the terms of the reservations of any nation with which it is involved in a dispute. It is plain to see why the existence of this type of reservation has had an impact on the effectiveness of the Court. Imagine the impairment which would result to the court system in the United States if the defendant in a lawsuit had the right to determine for himself whether his case was within the court's jurisdiction. The Court's statute explicitly limits its jurisdiction to international legal disputes. By the plain terms of the grant, it has no jurisdiction over domestic matters. So the "as determined by the United States of America" clause adds up, in the eyes of other nations at least, to a vote of no confidence that the Court will limit the cases it hears to those within its jurisdiction. There are those who are concerned that the Court might exceed its jurisdiction. It is argued that our sovereignty might thus be impaired. As a practical matter the argument as to possible loss of sovereignty is not persuasive. The International Court of Justice, in the final analysis, depends largely on world opinion for the enforcement of its decisions-in fact for the participation of the nations. It has carefully stayed within the limits of its jurisdiction as provided by its basic statute. There is no reason to believe that the Court would invade areas properly reserved to domestic jurisdiction. In July of this year, France, surely as sensitive as we are in matters of sovereignty, withdrew her reservation containing the equivalent of the Connally amendment. Thus, today, six NATO nations have not even deemed it necessary to make any express reservation with respect to domestic disputes. Three others-Canada, Great Britain, and now France—have done nothing more than make explicit the exclusion of domestic questions from the Court's jurisdiction. Hence, of the 10 NATO nations which have accepted the Court's jurisdiction, the United States is the only one which denies to the Court the right to determine its own jurisdiction. For more than 50 years our statesmen have advocated an impartial International Court to decide disputes between nations. In 1907, Secretary of State Elihu Root, in his instructions to our delegates at the Second Peace Conference at The Hague, said we should develop a permanent tribunal composed of judges who will devote their entire time to the trial and decision of international causes by judicial methods. In 1925, President Coolidge, in his inaugural address, advocated the "establishment of a tribunal for the administration of evenhanded justice between nation and nation." As he put it, "The weight of our enormous influence must be cast upon the side of a reign not of force, but of law and trial, not by battle, but by reason." Every President since World War I has advocated the submission of international legal disputes to a judicial tribunal. A half century of debate has resulted in little progress. It must be obvious to everyone that action in this field is long overdue. That is why our profession should urge the Senate of the United States to act at the earliest possible time on this important matter of the jurisdiction of the International Court of Justice. [Excerpts from Encyclopedia Britannica] INTERNATIONAL COURT OF JUSTICE For generations eminent statesmen, private persons and various organizations-national and international-have devoted much time and energy to efforts looking to the peaceful settlement of disputes between nations. Various methods of settlement have been advocated and at times resorted to, such as the use of good offices by other states, commissions of inquiry and conciliation, arbitration and judicial settlement. Arbitration as a form of judicial settlement has been used by states over a very long period of time-not generally but frequently. Many bilateral and a number of multilateral treaties and conventions providing for arbitration have 51053-60--10 been concluded. The multilateral Convention for the Pacific Settlement of International Disputes concluded at the first peace conference held at The Hague, Netherlands in 1899 contained elaborate provisions for arbitration, including the establishment by the signatories of a panel of jurists, called the Permanent Court of Arbitration, to which each state should appoint four members, and from which nations desiring to go to arbitration might choose competent arbitrators. When the second Hague Peace conference was called in 1907, U.S. Secretary of State Elihu Root issued instructions to the U.S. delegation in which he observed that the principal objection to arbitration rested not upon the unwillingness of nations to submit their controversies to impartial arbitration but upon apprehension that the arbitrations would not be impartial. He instructed the delegates to try to have the Permanent Court of Arbitration developed into a permanent tribunal composed of judges "who are judicial officers and nothing else, who are paid adequate salaries, who have no other occupation, and who will devote their entire time to the trial and decision of international causes by judicial methods and under a sense of judicial responsibility." The 1899 Convention for the Pacific Settlement of International Disputes was revised, but as revised it fell far short of the pattern outlined by Root. It did not provide for judges "who are judicial officers and nothing else" and who would "devote their entire time to the trial and decision of international causes." Rather it continued the system of a panel of jurists from which arbitrators might or might not be chosen for particular cases. The 1907 conference prepared and recommended to the powers represented at the conference a draft convention to establish a court of arbitral justice composed of judges to be elected for fixed periods of service and on a salary basis. But the project was not adopted by the states and the court was never established. Nevertheless the draft had its influence on subsequent developments. The next notable step in the process of developing an international judiciary was taken by the League of Nations in 1920, when pursuant to article 14 of the covenant of the League, it took steps to establish the Permanent Court of International Justice (q.v.). That court functioned successfully from 1922 until its operations were interrupted by World War II. It was governed by a statute drafted by a commission of jurists on which Root served as a member. He was thus able to see the views which he had expressed in 1907 emerge in the establishment of a court of the kind he had then visualized. The United States did not become a party to the statute of the Permanent court, although efforts to have it do so were made in turn by Secretaries of State Charles E. Hughes, Frank B. Kellogg and Henry L. Stimson, supported by Presidents Warren G. Harding and Herbert Hoover, as well as by many private citizens who felt that such a tribunal held great potentialities for peaceful settlement of international disputes. A senate resolution for adherence that came to a vote on January 29, 1935, failed to obtain the requisite two-thirds vote, and no further action to have the United States become a party to the statute was taken. Yet throughout the period of the court a U.S. jurist was on the benchfirst, John Basset Moore, followed by Charles Evans Hughes, Frank B. Kellogg and Manley O. Hudson. Establishment of International Court of Justice.-Following World War II and the advent of the United Nations, the League of Nations was dissolved and with it the Permanent Court of International Justice. But that court was not dissolved until the new one-the International Court of Justice had been established. By this time the nations, including the United States, were thoroughly convinced that a court of justice must have first rank in any organization for the maintenance of peace. This explains why the court was featured in the charter of the United Nations and why the statute was unanimously approved by the United States senate. Article 92 of the charter states: "The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present charter." Article 93 states that all members of the United Nations are ipso facto parties to the statute and that states not members of the United Nations may become parties on conditions to be determined in each case by the UN general assembly upon recommendation of the Security council. The court consists of 15 judges, no two of whom may be nationals of the same state, elected by the general assembly and the Security council. They do |