Republic and in preserving these United States as a sovereign nation of free people, would be dutybound to take such steps as are necessary to restore and preserve the rights which Congress or the executive department have endeavored to surrender.

In surrendering our sovereignty and our historic right to determine what matters are essentially within the domestic jurisdiction of the United States, we appear to be confronted with a strange paradox. U.S. citizens are elected to Congress or to Executive Office by virtue of the provisions of the U.S. Constitution, yet we find those citizens in the exercise of the very limited powers granted disregarding the chains and limitations placed upon them by the Constitution and the Bill of Rights. Have oaths of office ceased to have any meaning?

Even though our own Supreme Court has said that the President is the sole organ of the United States in international or treaty affairs, does that mean that the Executive voice alone is to be heard? Has that voice presumed to arrogate unto the executive branch of the Government the princely powers referred to by Chief Justice Jay, thereby relegating citizens of the United States to the status of subjects? Has that voice become so omnipotent (whether expressed by one man, or by a myriad of bureaucrats, or by our own Supreme Court, or by Congress) as to be beyond toleration or question? 13 Arbitrary power and force cannot be more plainly defined. Unless this committee and the American people are now ready to stand up and fight for the rights reserved to themselves by their forbears, the Constitution and the Bill of Rights will be meaninglessexcept that the final disregard of liberty and freedom, of dignity of the individual and of God in government may be recorded in history as the day that Senate Resolution 94 was adopted.

There are no absolutes in the World Court." A private citizen, or a state, cannot be a party to any dispute therein. The World Court is not bound to follow any constitution, any common law, or any system of law. Its decisions have no binding force, except between the parties, and in respect of that particular case 15 so that it is plainly contradictory to reason to assume that it could ever establish any system based upon judicial precedent. Last, but not least, probably the most objectionable feature of the whole World Court setup is the provision of the United Nations Charter 18 and of the statute permitting and requiring advisory opinions. Let us see what a prominent U.S. Senator had to say concerning this function."

"We are living under a written Constitution-one people, with one destiny, involved in a common concern, and we would not think of giving the Congress or the President power to call upon the U.S. Supreme Court for an opinion upon any question they might see fit to submit to it. But it is proposed here that with 11 judges, probably all of whom and almost surely 10 of whom will have been reared under foreign laws and foreign institutions, the Court may be called upon to pass on any question or any point which the Council or the Assembly may see fit to submit to it. There is no limit of power, save the will of the Council and of 11 men. It is a government of men and not of law. It is international bureaucracy. It is the most ambitious scheme to place the interests of millions under the unbridled and undefined power of 11 men that I know of in all the efforts of the few to steal power from the many."

13 Prior to 1920 treaty power appropriately had been placed in the President and was designed to include all those subjects in the ordinary intercourse of nations: was considered to extend to and be legal only in those matters "which are consistent with the nature of our institutions, and the distribution of powers between the General and State Governments" (Holmes v. Jennison, 14 Pet. 540. 569 (1840)). Or, as stated in a later case "if not inconsistent with the nature of our Government and the relation between the States and the United States" (Holden v. Joy, 17 Wall. 211, 242-243 (1872)).

14 Art. 38, statute, International Court of Justice.

15 Art. 59, statute, International Court of Justice.

16 Art. 96. statute, International Court of Justice.

17 From speech of Hon. William E. Borah, Congressional Record, Jan. 18, 1926.

STATEMENT OF DR. CHARLES S. COLLIER, PROFESSOR OF LAW, UNIVERSITY OF HOUSTON, HOUSTON, TEX.

I

The proposed resolution, Senate Resolution 94, now before this honorable committee of the U.S. Senate, would, if adopted by the constitutionally requisite vote of the Senate, and in accordance with the recommendation of President Eisenhower, have the effect of withdrawing or expunging from the operative terms of the "U.S. declaration recognizing the compulsory jurisdiction of the International Court of Justice," the brief, but highly significant clause, now an integral part of that declaration, that is very commonly referred to as the Connally amendment.

My first point is that this so-called Connally amendment, might more accurately be designated as the Connally reservation clause, in the U.S. declaration just referred to. Actually, the words of this Connally reservation clause are an integral and essential part of the original U.S. declaration. They were not an amendment added later to that original official declaration of the United States in regard to the jurisdiction of the International Court. This point, has, I believe, a real bearing, and, an adverse bearing, on the merits of the argument in favor of canceling out the words of the Connally reservation clause. For that reservation is in no fair sense an arbitrary, or external, sort of amendment or alteration, in the original action of the United States, but is a vital, organic part of the basic commitment actually made in the first instance by the United States in relation to the accepted jurisdiction of the International Court.

The term "amendment" as applied to the Connally reservation clause, was derived from the fact that these words were added in the course of senatorial debate and modified somewhat the meaning of the language at first employed by the Senator who introduced the primary resolution. But from the viewpoint of public opinion in the United States, and as well as from the viewpoint of other independent nations, the terms of the Connally reservation were an essential and highly important element or constituent part in the final action of the United States in its national decision to recognize with certain reservations, the compulsory jurisdiction of the International Court of Justice just formed (or re-formed) under the auspices of the United Nations.

I desire to stress as a second point, and as closely as possible to the outset of my discussion, that quite apart from the few but weighty words of the Connally reservation clause, the U.S. declaration as promulgated by President Truman, in accordance with the final resolution of the Senate of the United States, adopted by the Senate on August 2, 1946, sets forth other distinct and highly important reservations on the part of the United States as to the compulsory jurisdiction of the International Court, which it may prove wholly impossible to maintain in fact and in practice, if and when the qualified veto power on the part of the United States as to the exercise of any jurisdiction by the International Court over matters within the domestic jurisdiction of the United States, were to be abrogated. This qualified veto power that may now be exercised by the United States resides in the language of the Connally reservation clause. But this reserved power, so valuable and indeed indispensable to the protection and maintenance of the true independence and genuine national sovereignty of the United States that has existed since 1776 will perish if the present legal operation of the Connally reservation is nullified and no adequate substitute as a line of defense to our national freedom and autonomy is provided forthwith.

The actual terms of the U.S. declaration of 1946, even when examined apart from the protective language of the Connally reservation clause, reveal and exhibit truly important conflicts both in language and in the underlying purposes, when set side by side with the language of article 36 of the statute of the International Court, that is, the basic or constitutional instrument which was intended by those who drew it up to set forth the organization, powers, and functions of the International Court, and to define its jurisdiction in the sense of definition by a paramount and controlling law. These underlying conflicts should be carefully considered before any change is advocated with respect to the Connally reservation clause itself.

I shall return to this phase of the discussion for a full treatment in the concluding part of my statement.

The Connally reservation clause is the first line of defense for the independence and sovereignty of the United States, as against the International Court as a potential instrument of progressively expanding world government that will frequently in the long ranges of the future, though perhaps not invariably, be controlled by persons who will be definitely alien to the United States by their nationality, by their genuine patriotic allegiance, by their own inherited traditions, and by their most cherished personal ideals.

Why should anyone advocate taking such risks? Why should anyone support the repeal of the Connally reservation clause?

The chief reason of a legal nature, that I have heard advanced, is that the United States by virtue of the Connally amendment, has taken away with the left hand what it gave with the right hand. It is urged that the general declaration of the United States, promulgated by President Truman in 1946, purported to accept the jurisdiction of the International Court according to the terms of the basic statute of that Court, which included the grant of power to that Court to determine its own judicial jurisdiction. It is urged that the Connally reservation clause reserving power to the United States to determine in effect the issues of jurisdiction in a certain wide range of important cases in which the United States might be involved, was in contradiction to the basic statute of the International Court. It has even been suggested that this reservation amounted to making one party before the International Court the judge in its own

cause.

In reply to these suggestions, it may be said that the United States has never taken away from the International Court by the left hand, or otherwise, any jurisdiction which it had previously conferred upon the International Court or previously assented to by the right hand, or otherwise. The Connally reservation clause was part and parcel of the original declaration of the United States which recognized the compulsory jurisdiction of the International Court. One part of this declaration could not outrun or antedate any other part in time or in legal effect. The Connally reservation clause was not an amendment, or untimely change, attempted in the original declaration of the United States. It was an integral and controlling part of the original declaration. Much more fitly could this charge of double dealing, or inconsistent and contradictory attitudes, and legal resolutions, be brought against the United States, if the legal advice of some of the proponents of the repeal of the language of the Connally reservation clause were to be followed. For they urge that no great harm could result from such a repeal, because if after such repeal, cases and controversies which the United States was litigating before the International Court should result too unfavorably or too adversely, to our national claims, the United States could thereupon after adequate notice, and suitable maneuvers, withdraw altogether its submission to the International Court's jurisdiction. Such action on the part of the United States would indeed, be an instance of taking away with one hand what we had given with the other, and would subject our country to worldwide reproaches to the effect that the United States was really willing to litigate serious cases in the International Court, and submit faithfully to the determination of that Court, only if, and when, the determination of that Court was favorable to the United States, and constituted a victory for the United States in litigation.

It is far better to have an honest reservation from the very beginning with respect to the jurisdiction of the International Court, a reservation plainly designed to operate as a conspicuous controlling factor at the very threshold of the possible assumption of power or jurisdiction of any kind by the International Court. Resistance or reprisals after experiencing costly or questionable adverse judgments based on the proposed unqualified submission of the United States to the jurisdiction of that court cannot be the true path toward the goals of international peace and stability and good will throughout the world.

Some critics attack the Connally reservation clause in a purely logical sense. They argue that the position of the United States in this field, is one sided and will produce legal inequalities and that thus, the United States is demanding the benefits of unequal and unjust laws. But no unequal treatment of litigants before the International Court need or will result from the operation of the Connally reservations since the basic statute of the Court itself provides or implies that in no case, shall conditions under which the Court shall be open, place the parties in a position of inequality before the Court. See article 35 of the statute of the International Court. But, the really controlling and patriotic

auswer to this objection to the operation of the Connally reservation, is that liberty is better than logical symmetry, and that the practical independence and essential sovereignty of the United States must be faithfully preserved as fully as may be humanly possible, whether all other nations strive faithfully to preserve their essential liberties or do not so strive. It was open to other nations also, in the first instance to insist upon self-protective reservations with respect to the compulsory jurisdiction of the International Court.

There are two other important arguments employed by advocates of the repeal of the Connally amendment that ought to be dealt with, however briefly, at this point. The first of these is, that this proposed repeal will be a helpful step toward world peace. The other is, that the proposed repeal will be a helpful step toward the establishment of a fully developed system of world government.

The question as to whether the cancellation of the Connally reservation would be a helpful step toward world peace opens up a number of avenues of speculation. One possible answer to this question would be to ask whether the existence of the Connally reservation has ever in any concrete instance created any threat to peace among the nations? It would seem perfectly clear that a negative reply ought to be forthcoming on that particular inquiry. But more broadly, it can be stated that the whole organization of the United Nations was planned primarily to prevent breaches of peace among the nations and to forestall wars. This description applies to the Security Council, the Secretariat and the General Assembly, as well as the International Court. The United States has already joined the Security Council and the General Assembly without any reservations. But where is the "promised land" of peace?

The United States has at all times, worked faithfully and persistently for the interests of world peace, whenever and wherever it could properly invoke the action of any of the widely publicized international agencies. What has really been wanting has been the effective will for peace on the part of ambitious governments other than those of the United States.

If any critic should assert that this last statement would be a self-serving declaration on the part of the United States, when made by an American citizen, I challenge such critic to allege and prove that the statement is untrue or incorrect.

The desire for territorial acquisitions which extends from China to Panama, and a desire which extends from Indonesia to Egypt will not be altered by a vote in the U.S. Senate in favor of casting away the Connally reservation. The ambition of the new and underdeveloped nations, lacking as they are in capital funds and in resources, and their intense desire to level the inequalities of fortune between themselves and the United States, might even lead to a new phase of the cold war in the form of blackmail claims, and wholly unjustified, but troublesome lawsuits, against the United States, if once the protection of the Connally reservation with regard to the maintenance of actions of all sorts against the United States in the International Court were to be withdrawn. If the United States and any other country have a dispute by which they both desire to have decided by the International Court rather than left to diplomacy, this can always be accomplished by special measures invoking the jurisdiction of the International Court in that particular case. It certainly can be accomplished without establishing once for all a perfectly compulsory jurisdiction of the International Court, a jurisdiction which would apply even when the litigation was most provocative and vexatious, and when the just conclusion that only the truly domestic interest of the United States were under attack, would be obvious to well-informed public opinion in the United States from the outset. But how few countries in the world beside our own, possess a regime where a well-informed public opinion exists, or where such a public opinion could make its influence effectively felt to restrain a rapacious government such as that of Mussolini in Italy or that of Nasser in Egypt, or that of Castro in Cuba today? And to nations under strict censorship the justice of the U.S. position in any such international litigation could never be publicized at all, much less proved fairly and effectively, without the previous consent and full authorization of the censors.

But perhaps the main point in this section of the discussion is that the great actual danger to world peace ever since 1945 has been, and still remains, the ideological conflict between the free world and the world of the Communists. Can the jurisdiction of the International Court ever be effective to remove this conflict or pacify the emotions that lie behind it? The answer seems obvious. The great conflicts of history from the years of the ancient empires of Baby

lonia and Egypt down to the days of Hitler and Mussolini have never been conflicts that could have been settled or forestalled by judicial rulings. But also, in the present situation, we have to weigh and consider the factor that one group of nations led by Soviet Russia and Communist China have nothing to do with international judicial processes in any form. In dealing with these wholly untamed and ruthless nations, the United States, as the leader of the free world, must needs preserve its full freedom of action, and must never lose sight, through the illusions of pacifism, of its supreme duty of retaining its resources and power intact, for the worldwide struggle that is, this very day, as it has been continuously for many years, in intense progression between the two great ideological groups. The hostile propaganda that could be let loose against the United States by actions at law in the International Court based on all sorts of defamatory allegations against the United States that would be repeatedly trumpeted around the world, certainly could and probably would constitute a new and more dangerous phase of the cold war. The newspaper headlines all around the world including our own country from Key West, Fla., to Point Barrow, Alaska, would blazon forth all the charges and arguments against the United States, however palpably unreasonable they might be; while the merits of our side in the litigation would never be set forth effectively and perhaps would not even be mentioned in more than half the world that is in the controlled press which is such a conspicious feature not only in the national life of Soviet Russia and that of Communist China, but also in that of many other nations all around the globe. In other words, the exercise of the unrestricted compulsory jurisdiction of the International Court might well prove to be a new and most powerful means of waging the cold war against the United States. Public opinion in our own country might be painfully divided between the schools of firm resistance, and the schools of ever expanding and ever recurring appeasement. And the attention of our Nation might be diverted with the most evil consequences from that great task of maintaining our military preparedness and our internal industrial and financial strength which is for the present and for all of the foreseeable future the supreme and in one sense the exclusive duty of the United States.

For example, suppose that the tiny Republic of Panama, which could never threaten us militarily, should bring a proceeding to International Court, demanding the transfer of the Panama Canal from the control of the United States States to that of Panama. Under the protection of the Connally reservation clause, the United States could defeat at the outset any claim of color of jurisdiction in the International Court in such a case merely by asserting our own governmental decision that this matter, in regard to which the legal dispute had been started, rested essentially within the domestic jurisdiction of the United States. This action would torpedo such a fantastic claim of Panama before this particular ship of cold war aggression, nominally of Panamanian registry, but actually directed, financed, and publicized by the Communist nations could ever emerge from the harbors of Panama and reach the broad oceans of tempestuous and long continued cold war publicity. If such a situation developed, would not the United States have good cause for bitter regret that it had become embroiled in such a highly publicized governmental dispute, in which public opinion all over the world might be really poisoned against us, whatever the ultimate official decision of the long drawn out and declamatory litigation might prove to be?

It is even possible that in such a case, the International Court, having unlimited jurisdiction both for final decision and for conservation and control of disputed assets and properties during litigation might establish some sort of "international receivership" of the Panama Canal during such a portentous law suit and thus exclude the United States from effective control of that great interoceanic highway for any military purpose throughout some specially critical period that might coincide with the duration of such a receivership. The United States could be robbed of a part, perhaps a vital part of its naval and military power during the whole of the unpredictable length of such international occupancy and control of all the installations and facilities now used and operated by the United States in the Panama Canal Zone.

Would the United States submit to any such interferences with its military safety even under the guise of international authority? Would unrestricted submission to international and perhaps wholly alien authority in such a situation be the road to real world peace? Is it not more probable that any such exposure of weakness and self distrust on our part would actually invite military attack against the United States by one of the great hostile powers, Soviet