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tains a clause by which the parties agree to submit to the decision of the International Court of Justice certain claims on behalf of their nationals for injuries arising from governmental measures. This is an acceptance of compulsory jurisdiction. However, each of these treaties contains further stipulations limiting such acceptance by the United States by the terms and conditions of the U.S. declaration of 1946 including the Connally reservation. This means that the United States might be defeated as plaintiff any time the state against whom we brought the claim on behalf of our injured national invoked our own self-judging reservation against us. In other words, our reservation potentially frustrates clauses of a whole series of treaties we have concluded.

Reasons of principle and the lessons of experience strongly suggest the withdrawal of the words "as determined by the United States."

It may be doubted where a revised U.S. declaration accepting the compulsory jurisdiction of the Court needs to contain any domestic jurisdiction reservation. Most States accepting the Court's compulsory jurisdiction have not made such reservations. The reason is, as expressed by Attorney General Rogers, that "the Court's statute explicitly limits its jurisdiction to international legal disputes. By the plain terms of its grant, it has no jurisdiction over domestic matters.” In any case, it seems desirable to leave to the Court the determination whether or not a dispute is with regard to a matter which, according to international law, falls exclusively within the domestic jurisdiction of the United States.

2. The second issue on which I wish to comment briefly has already been raised by Assistant Secretary of State Macomber in his report to Senator Fulbright on April 30, 1959 (cf. Congressional Record, daily edition, Jan. 18, 1960, p. 508), and refers to the words "hereafter arising" found in Senate Resolution 94, page 2, lines 1 and 2.

When this resolution is adopted, it will require the deposit of a new declaration of acceptance of the Court's compulsory jurisdiction and the words "hereafter arising" will refer to the date of deposit of the new U.S. declaration, thus excluding ratione temporis disputes which today come within the scope of the declaration currently in force.

There are two possible ways of avoiding such an unreasonable exclusion: either delete the words "hereafter arising" entirely, or substitute for them the words "arising after August 2, 1946."

The reasons for excluding a dispute from the operation of the rule of law merely because it arose before a certain date are not obvious. The current declarations of 161 states contain no reservations limiting the jurisdiction of the Court ratione temporis. On the other hand, 23' declarations currently in force contain such reservations. All 23 of these declarations limit acceptance of the Court's compulsory jurisdiction to disputes arising after a certain date, and 17 contain the further limitation that the situations or facts giving rise to the dispute must also be subsequent to that date. The exclusion date is determined by various formulas, frequently the date of entry into force of the declaration or (in case of renewals) of a prior declaration. Apparently only France and the Union of South Africa today follow a policy of excluding from each new declaration disputes for which jurisdiction had been accepted under the previous declaration. The Netherlands abandoned such a practice in its declaration of 1956 and put the exclusion date back to 1921, the date when it first accepted the compulsory jurisdiction of the Permanent Court.

It seems desirable that the United States should omit the reservation ratione temporis contained in the words "hereafter arising." Under the condition of reciprocity which the Court is required to apply between the parties before it, any date we set for excluding prior disputes can be used against us to defeat jurisdiction when we are plaintiffs. If, however, reasons are thought to exist for excluding certain past disputes from the operation of the rule of law, the new declaration should at least accept compulsory jurisdiction for legal disputes arising after August 2, 1946.

1 Cambodia, China, Denmark, Dominican Republic, Haiti, Honduras, Liechtenstein, Nicaragua, Norway, Panama, Paraguay, Philippines, Portugal, Switzerland, Thailand, and Uruguay.

2 Australia, Belgium, Canada, Columbia, El Salvador, Finland, France, India, Israel, Japan, Liberia, Luxembourg, Mexico, Netherlands, New Zealand, Pakistan, the Sudan, Sweden, Turkey, Union of South Africa, United Arab Republic, United Kingdom, and United States.

3 Australia, Belgium, Canada, Colombia, Finland, France, India, Israel, Japan, Luxembourg, Mexico, New Zealand, the Sudan, Sweden, Turkey, Union of South Africa, and United Kingdom.

3. The third issue I shall not press; but I would merely observe that exclusion "a" (S. Res. 94, p. 2, lines 10-13) seems to serve little purpose. Article 95 of the United Nations Charter provides that

"Nothing in the present charter shall prevent members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future." If the parties to a dispute which has not been submitted to the International Court of Justice entrust it to another tribunal, the reservation seems unnecessary. If the parties to any case of which the Court has been seized agree to its discontinuance in order to submit it to another tribunal, no reservation is required for this purpose, since, by article 68 of the Court's rules, the Court "shall direct the removal of the case from the list."

4. The fourth issue on which I wish to comment relates to proviso (c) (S. Res. 94, p. 2, lines 17-20):

"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."

This obscure reservation appears either to contradict our acceptance of compulsory jurisdiction as regards multilateral treaties; or to establish a limitative condition which would drastically defeat our interest in encouraging resort to the rule of law.

To the extent that the reservation requires under (2) (line 20, p. 2, S. Res. 94) that the United States make a special agreement accepting the Court's jurisdiction, the special agreement replaces the declaration as the basis of the Court's jurisdiction. The reservation contradicts our acceptance of compulsory jurisdiction (in lines 1-3, p. 2, S. Res. 94) "in all legal disputes hereafter arising concerning-(a) the interpretation of a treaty." We are limiting compulsory jurisdiction to bilateral treaties, thereby excluding hundreds of the most important treaties to which we are a party.

On the other hand, if we make no special agreement, we appear to be requiring that all parties to the treaty affected by the decision become codefendants with us before we accept the Court's jurisdiction. Suppose the United States is sued before the Court over the interpretation of the NATO treaty or the United Nations Charter. The requirement that all parties to those treaties must become codefendants with us would erect an insuperable barrier to the jurisdiction of the Court. Furthermore, this reservation too can boomerang against us if we seek to bring an action over a dispute arising under a multilateral treaty. The defendant can invoke it.

There appears to be no problem which this lamentable reservation solves. No State and this includes the United States-is bound by a decision of the Court in a case to which it is not a party (art. 59, Court's Statute).

The only effect of the multilateral treaty reservation is to nullify U.S. acceptance of compulsory jurisdiction in regard to a large and important category of cases and to sterilize the rule of law.

Although the major purpose of the Humphrey resolution is to effect the withdrawal of the Connally amendment reservation, it would seem to be in accord with President Eisenhower's stated purpose to withdraw the multilateral treaty reservation before urging "similar acceptance of the Court's jurisdiction by every member of the United Nations."

(The following letter and attachment were subsequently received from Mr. Briggs for inclusion in the record :)

Senator J. W. FULBRIGHT,

CORNELL UNIVERSITY, DEPARTMENT OF GOVERNMENT, Ithaca, N.Y., January 29, 1960.

Chairman, Senate Committee on Foreign Relations, U. S. Senate,
Washington, D.C.

DEAR SENATOR FULBRIGHT: I appreciate very much the opportunity granted to me to testify before the Senate Committee on Foreign Relations with reference to Senate Resolution 94, relating to the recognition of the jurisdiction of the International Court of Justice.

Referring to the statement appearing on page 4 of the mimeographed copy of my testimony that the United States has concluded at least 19 economic cooperation agreements with foreign countries, it occurs to me that it might be

useful to insert in the record the text of the pertinent article. Article IX of the Economic Cooperation Agreement with Sweden, under Public Law 472, 80th Congress (TIAS 1793) signed at Stockholm, July 3, 1948, reads in part as follows:

"ARTICLE IX

"(Settlement of Claims of Nationals)

"1. The Governments of the United States of America and Sweden agree to submit to the decision of the International Court of Justice any claim espoused by either Government on behalf of one of its nationals against the other Government for compensation for damage arising as a consequence of governmental measures (other than measures concerning enemy property or interests) taken after April 3, 1948, by the other Government and affecting property or interests of such national, including contracts with or concessions granted by duly authorized authorities of such other Government. It is understood that the undertaking of each Government in respect of claims espoused by the other Government pursuant to this paragraph is made in the case of each Government under the authority of and is limited by the terms and conditions of such effective recognition as it has heretofore given to the compulsory jurisdiction of the International Court of Justice under article 36 of the statute of the Court. (TIAS 1598) The provisions of this paragraph shall be in all respects without prejudice to other rights of access, if any, of either Government to the International Court of Justice or to the espousal and presentation of claims based upon alleged violations by either Government of rights and duties arising under treaties, agreements or principles of international law." ***

The phraseology of this treaty is typical of that contained in treaties with China, France, Belgium, Netherlands, Norway, Denmark, United Kingdom, Luxembourg, Turkey, Portugal, and Israel. In treaties with the following countries, the phraseology is somewhat varied: Italy, Iceland, Austria, Greece, Ireland, Jordan, Spain.

It is my opinion that if we sued any one of these states on behalf of our nationals, we would have provided them gratuitously with a defense under the Connally reservation amendment which would not otherwise be available to them. I am enclosing a copy of Resolution I on the compulsory jurisdiction of international courts and tribunals which was unanimously adopted by the Institute of International Law at its Neuchatel session on September 11, 1959. Although the Institute is composed predominantly of persons who are not citizens of the United States, it is a distinguished body of international lawyers, including judges on the International Court of Justice, legal advisers of foreign offices, jurists who have practiced before the Court and professors of international law, and the resolution is expressive of the attitude of these men toward the self-judging reservation.

I shall leave to your judgment the question of whether it would be appropriate to attach these materials to my testimony as an annex.

With my appreciation for the courtesy extended to me by you and the members of the committee,

Sincerely yours,

HERBERT W. BRIGGS, Professor of International Law.

Resolution and Vou Adopted by the Institute of International Law at its Session at Neuchâtel (3-12 September 1959)

I. Compulsory Jurisdiction of International Courts and Tribunals

(24th Commission)

The Institute of International Law,

Having examined the present situation as regards the compulsory jurisdiction of international courts and arbitral tribunals;

Convinced that the maintenance of justice by submission to law through acceptance of recourse to international courts and arbitral tribunals is an essential complement to the renunciation of recourse to force in international relations; Considering that more general acceptance of compulsory jurisdiction would be an important contribution to respect for law and noting with concern that at the present time the development of such jurisdiction lags seriously behind the needs of a satisfactory administration of international justice;

Recognising the importance of confidence as a factor in the wider acceptance of international jurisdiction;

Considering it essential that Article 36, paragraph 2, of the Statute of the International Court of Justice should remain an effective means for securing progressively more general acceptance of the compulsory jurisdiction of the Court;

Recalling the Resolutions concerning the principle of compulsory jurisdiction adopted by the Institute in 1877, 1904, 1921, 1936, 1937, 1954, 1956 and 1957, and enumerated in the Annex to the present Resolution, and in particular the vœu concerning the reservation in respect of matters of domestic jurisdiction adopted at Aix-en-Provence in 1954 and the Resolution concerning a model clause conferring compulsory jurisdiction on the International Court of Justice for inclusion in conventions adopted at Granada in 1956;

Adopts the following Resolutions:

1. In an international community the members of which have renounced recourse to force and undertaken by the Charter of the United Nations to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered, recourse to the International Court of Justice or to another international court or arbitral tribunal constitutes a normal method of settlement of legal disputes as defined in Article 36, paragraph 2, of the Statute of the International Court of Justice. Consequently, recourse to the International Court of Justice or to another international court or arbitral tribunal can never be regarded as an unfriendly act towards the respondent State.

2. It is of the highest importance that engagements to accept the jurisdiction of the International Court of Justice undertaken by States should be effective in character and should not be illusory. In particular, States which accept the compulsory jurisdiction of the Court in virtue of Article 36, paragraph 2, of the Statute should do so in precise terms which respect the right of the Court to settle any dispute concerning its own jurisdiction in accordance with the Statute and do not permit States to elude their submission to international jurisdiction. It is highly desirable that States having excluded from their acceptance of the compulsory jurisdiction of the International Court of Justice in virtue of Article 36, paragraph 2, of the Statute of the Court matters which are essentially within their domestic jurisdiction as determined by their own government, or having made similar reservations, should withdraw such reservations having regard to the judgments given and opinions expressed in the Norwegian Loans and Interhandel Cases and to the risk to which they expose themselves that other States may invoke such reservations against them.

3. In order to maintain the effectiveness of the engagements undertaken, it is highly desirable that declarations accepting the jurisdiction of the International Court of Justice in virtue of Article 36, paragraph 2, of the Statute of the Court should be valid for a period which, in principle, should not be less than five years. Such declarations should also provide that on the expiration of each such period they will, unless notice of denunciation is given not less than twelve months before the expiration of the current period, be tacitly renewed for a new period of not less than five years.

4. With a view to ensuring the effective application of general conventions, it is important to maintain and develop the practice of inserting in such conventions a clause, binding on all the parties, which makes it possible to submit disputes relating to the interpretation or application of the convention either to the Internaitonal Court of Justice by unilateral application or to another international court or arbitral tribunal; this clause might be based on the provisions of the Resolution concerning a model clause conferring compulsory jurisdiction on the International Court of Justice for inclusion in conventions adopted by the Institute in 1956.

5. In the interest of world economic development it is desirable that economic and financial agreements concerning development schemes, whether concluded between States or concluded with States by international organisations or international public corporations, should contain a clause conferring on the International Court of Justice (so far as the Statute of the Court allows) or on another appropriate international court or arbitral tribunal compulsory jurisdiction in any dispute relating to their interpretation or application.

6. Without prejudice to the possibility of international remedies being made available directly to private parties, certain economic and financial agreements between States could usefully contain a general provision for compulsory juris

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diction in respect of claims brought by one of the States concerned (either acting on its own behalf or espousing a claim on behalf of one of its nationals) against one of the other States concerned.

The Institute of International Law

Væu

Draws the attention of institutions responsible for legal education, of professional bodies of jurists and legal practitioners, and of all those engaged in the publication of judicial decisions to the need for strengthening the confidence of peoples and governments in international adjudication by promoting wider and more thorough knowledge of the working and decisions of the International Court of Justice and other international courts and arbitral tribunals; and

Expresses the hope that public and private bodies, both national and international, will consider what measures should be taken to promote wider diffusion of the decisions of international courts and tribunals among jurists and legal practitioners.

ANNEX

(11 September 1959.)

1. Resolutions and Vœu of the Institute on the Principle of Compulsory Jurisdiction

1. Resolution on the compromis clause to be inserted in treaties (12 September 1877, Zurich Session)

Tableau général1 No. 45, p. 145; Annuaire 2 (1878), p. 160.

2. Resolution on recourse to the Permanent Court of Arbitration (26 September 1904, Edinburgh Session)

Tableau général No. 46a, pp. 145, 146; Annuaire 20 (1904), p. 210.

3. Resolution on signature of the optional clause of the Permanent Court of International Justice (6 October 1921, Rome Session)

Tableau général No. 52, pp. 159, 160; Annuaire 28 (1921), pp. 201, 202.

4. Resolution on the extension of compulsory arbitration (14 October 1929, New York Session)

Tableau général No. 46b, pp. 146, 147; Annuaire 35 (1929), II, pp. 303, 304. 5. Resolution on the jurisdictional clause in conventions of international unions, notably those relating to industrial property and literary and artistic property (24 April 1936, Brussels Session)

Tableau général No. 88, pp. 273–276; Annuaire 39 (1936), II, pp. 305–310.

6. Resolution on the legal nature of advisory opinions of the Permanent Court of International Justice and on their value and significance in international law (3 September 1937, Luxembourg Session.)

Tableau général No. 55, pp. 162, 163; Annuaire 40 (1937), pp. 272, 273.

7. Vou concerning the reservation in respect of matters of domestic jurisdiction (29 April 1954, Aix-en-Provence Session)

Tableau général No. 2b, p. 4; Annuaire 45 (1954), II, p. 293.

8. Resolution concerning a model clause conferring compulsory jurisdiction on the International Court of Justice for inclusion in conventions (17 April 1956, Granada Session)

international

Tableau général No. 53), pp. 160, 161; Annuaire 46 (1956), pp. 360–362. 9. Resolution on judicial redress against decisions of organizations (25 September 1957, Amsterdam Session) Annuaire 47 (1957), II, pp. 476–479.

2. Vœu concerning the Reservation in Respect of Matters of Domestic

Jurisdiction

(29 April 1954; Aix-en-Provence Session)

The Institute of International Law expresses the hope that States which include in their declarations accepting the compulsory jurisdiction of the International Court of Justice a reservation in respect of matters of domestic juris

1 Tableau général des Résolutions (1873–1956), Bâle, 1957.

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