RSC Lot 60–D 224, Box 96: US Cr Min 23

Minutes of the Twenty-Third Meeting of the United States Delegation, Held at San Francisco, Monday, April 30, 1945, 9:30 a.m.

[Informal Notes—Extracts]

[Here follows list of names of persons (21) present at meeting.]

In the absence of the Chairman of the Delegation Senator Connally presided, and opened the meeting at 9:30 a.m.

[Page 489]

Press Policy

Mr. Byington read the following proposed statement of press policy for the American Delegation:

Official announcements by the Delegation shall be made through the Chairman.
All members of the Delegation are free at all times to converse with the press for background or to make such personal statements as they may consider appropriate. Copies of any formal statements made to the press should be sent to the Delegation’s Press Officer immediately after they are made.
All arrangements to speak on the radio shall be made through Commander Lloyd Dennis.
The Press Officer of the Delegation will arrange as frequently as possible for a background conference by one or more members of the Delegation together with one or more of the technical advisers.
In making the arrangements for press conferences the Press Officer of the Delegation will consult with Commander Stassen who will act in behalf of the Delegation in directing the Press Officer with regard to general arrangements. This suggestion is made on the basis of the Delegation’s discussion last Friday.83
The Chairman of the Delegation will attend the background conferences and preside. However, arrangements shall be made by the Press Officer, through Commander Stassen, for a delegate to be definitely on hand to preside in case it is not possible for the Chairman to attend, as will undoubtedly sometimes be the case.
The first background press conference will be presided over by the Chairman of the Delegation and it is hoped that as many of the Delegates and advisers as can arrange to do so will be present. It will be held Tuesday at 2:45 p.m. in the Bed Boom of the Fairmont Hotel. There will be a further background meeting with the press at 2:45 on Wednesday. During the latter part of the week, an effort will be made to move the time for the conferences to 1:00 p.m. or quarter to one if possible.

In view of the tremendously large number of correspondents attending the conference, it is suggested that these background conferences should be started on an experimental basis and without commitment on the part of the Delegation to continue them daily in any set form since it may not prove feasible to have background conferences with such large groups as may attend. The press should be informed, however, that it is the intention of the Delegation to meet with them as often as possible and that all announcements of future conferences will be made through the Press Officer of the Conference Secretariat.

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All newsreel and still camera arrangements shall be made through the Delegation Press Officer who will follow a policy of endeavoring to see to it that the camera men get all the pictures they want.

Senator Vandenberg asked if the United States Proposals or amendments to the Dumbarton Oaks Proposals had been submitted formally as yet, and if they were not available for public discussion. He thought they were a legitimate subject of publicity and that it was important to get them out. Mr. Gerig explained that it was necessary to get an approved Russian text before these Proposals could be released and that the Russian approval had not yet been obtained. Congressman Bloom commented that it seemed to take a long time to get this clearance.…

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Tickets for Plenary Sessions

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At the request of Senator Connally, Mr. Gerig reported on the subject of trusteeship. He stated that it had been agreed at Yalta that the five permanent members of the Security Council would consult with respect to trusteeship prior to the San Francisco Conference. Mr. Stettinius and Mr. Dunn had been in touch with the other four governments over the weekend, and there would be preliminary conversations with those governments beginning that evening at 8:30.84 Commander Stassen, Mr. Gates, Mr. McCloy, and Mr. Gerig (as Technical Expert) would represent the United States. Mr. Gerig thought these conversations would take several days. The paper prepared by the United States Delegation85 would be submitted; and it was Mr. Gerig’s understanding that the British did not have a paper but would rely upon the United States paper. Developments in this matter would be brought to the attention of the United States Delegation and every effort would be made to push the matter as rapidly as possible. Representative Bloom asked how this was different from the manner in which it would be handled in the Conference, and also asked if any over-all committee on trusteeship had been appointed for the Conference, as he had heard that there was such a United Nations Committee with Saudi Arabia represented on it. Mr. Gerig stated that under the organization of the Conference, there would be a Committee on Commission II dealing with this subject but that such a committee had not as yet been appointed. The International Secretariat would [Page 491] inform the United States Delegation at the earliest moment as to the membership of this committee.

Mr. Dulles observed that it would be desirable to decentralize this work. He noted that on this trusteeship question, the Delegation had considered primarily the military aspects, but that other countries would raise many other considerations, such as the Dutch East Indies, etc. He thought, therefore, that Commander Stassen would need advisers other than the Army and Navy people. Congressman Bloom thought that with all due respect to Commander Stassen there should be some one representative from Congress dealing with this subject.

Senator Connally noted that the Army and Navy advisers took the position that strategic bases would be under the Security Council, and that other areas would be under the Assembly. He noted that Senator Vandenberg was associated with both Commission II and Commission III and therefore Senator Vandenberg should handle this matter with Commander Stassen. Commander Stassen observed that this present consultation was merely to present the United States Delegation document regarding trusteeship to the other four governments, and to explain to them informally what the United States Delegation intends. This was just a preliminary consultation and before anything would be decided, the full Delegation would be informed.

The International Court of Justice: Compulsory Jurisdiction

Senator Connally asked Mr. Hackworth to present a report to the Delegation on the work of the Committee of Jurists in Washington.86 Since Senator Connally and Senator Vandenberg had to leave in a few minutes, Mr. Hackworth was asked to take up the subject of compulsory jurisdiction first.

Mr. Hackworth stated that in the Committee of Jurists there had been a considerable demand to write compulsory jurisdiction into the Statute of the International Court, particularly on the part of the small powers and also on the part of such countries as China and Brazil. On the other hand, he reported that the USSR, the United Kingdom, Netherlands, Yugoslavia, Norway, Haiti, and France were opposed to compulsory jurisdiction and supported the Optional Clause of the present Statute, which also appears in the United States draft.87 These countries stated that they would not be parties to the Statute if it contained a provision for compulsory jurisdiction. Mr. Hackworth stated that this situation presented a real problem.

[Page 492]

Senator Connally asked if under the Optional Clause a state could agree to accept the jurisdiction of the Court, either generally or just with certain states. Mr. Hackworth replied that under the Optional Clause a state could go as far as it wished, i.e., it could accept the Court’s jurisdiction for a limited period of time or for certain types of cases, etc. Representative Bloom asked if Russia would object to that type of provision too. Mr. Hackworth replied that the United Kingdom and Russia were willing to accept the Optional Clause and, he supposed, the United States also. However, he said, a large number of the small countries wanted the compulsory jurisdiction provision. Therefore, he had suggested that this article be put in alternative forms for the San Francisco Conference.88

Congressman Eaton asked what argument these countries used in insisting on compulsory jurisdiction. Mr. Hackworth replied that the little states seem to feel that it would be a great protection to them if they could bring other countries, both large and small, into the Court. Congressman Eaton remarked that he could see their point.

Senator Vandenberg stated that he had the definite feeling that this was one situation where we would have to depend upon evolution to reach the desired objective. He thought that a provision for compulsory jurisdiction would be a red-danger signal in the Senate. He recalled the Court fight in the Senate which he had gone through. He felt, therefore, that the Optional Clause of the Statute must be retained for the purposes of the Senate. Senator Connally agreed with Senator Vandenberg. He felt that from the United States’ standpoint, the Optional Clause must be retained. He said if we accepted the compulsory jurisdiction provision, we would not know what suits would be brought against us by other countries, both in this hemisphere and elsewhere. He thought, therefore, that the optional jurisdiction provision should be retained. He noted that unless nations were willing to submit a dispute to the Court on an optional basis, the case would probably have to go to the Security Council in any event.

Mr. Dulles observed that everybody would like to have the compulsory jurisdiction clause, but that we would have to move toward it through the process of evolution. He thought that the United States’ acceptance of the Court Statute with the Optional Clause would be as great a step at present as would be practical.

Commander Stassen thought that this country had moved a long way from the old debates in the Senate on the world court. He would [Page 493] like to have a provision for the compulsory jurisdiction of the international court over certain limited types of cases and permit the Senate to make what reservations it wished with respect to the compulsory jurisdiction provision. For example, he did not think that the Senate would make any reservation with respect to compulsory jurisdiction of the court with respect to the interpretation of international documents. Commander Stassen thought that this country had gotten away from the idea that the United States is above all law. He felt that it was ingrained in the American people that there are standards of justice applicable to everybody. Commander Stassen then asked that whether or not the United States insisted upon compulsory jurisdiction, would it not be better to let this matter come up in the form of a reservation in the Senate?

Mr. Dulles asked if Commander Stassen was proposing that the provision for compulsory jurisdiction be made part of the world Charter. Commander Stassen said that he preferred to let the Senate make a reservation to a compulsory jurisdiction provision rather than to propose the Optional Clause in the first instance. Senator Vandenberg disagreed with Commander Stassen because, he said, it was very undesirable to invite deliberately the process of reservation in the Senate. Commander Stassen asked if the Senators expected that there would be no reservations made to the documents of this Conference in the Senate. Senator Connally said that they intended to stand by what they had done here and would oppose any reservations to the Conference documents in the Senate. Commander Stassen said that if we got a document here for which the two Senators would fight in the Senate without reservation, he would gladly withdraw his position with regard to compulsory jurisdiction in the Court and would support the United States Delegation’s policy.

Mr. Fahy noted that the American Bar Association had proposed that there be a provision for compulsory jurisdiction of the court and also a provision for reservations to that jurisdiction. He observed that if the Optional Clause were adopted, it would still be necessary for the Senate to take affirmative action before the United States would become a member of the Court. Senator Vandenberg said that could be taken up at the same time the Charter was ratified. Commander Stassen noted that the Optional Clause could be accepted by separate action in the Senate.

Senator Connally asked Mr. Fahy if the American Bar Association’s proposal for compulsory jurisdiction were limited to certain categories of cases. Mr. Fahy read the categories of cases involved, as follows: “(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 [Page 494] nature or extent of the reparation to be made for the breach of an international obligation.”

At this point, Senator Connally and Senator Vandenberg left the meeting, and Commander Stassen presided. Commander Stassen asked Mr. Hackworth to give the Delegation an explanation of the other points involved in the Statute of the Court.

Mr. Hackworth stated that he had prepared a draft with respect to compulsory jurisdiction which he thought would be safe. Commander Stassen stated that in view of the opinion just expressed by Senator Connally and Senator Vandenberg, that Mr. Hackworth had better prepare a draft containing the Optional Clause and also the simplest possible provision for its acceptance by the various countries, which would also make it convenient for the countries individually and, subsequently, to consent either to limited or compulsory jurisdiction of the Court. Representative Bloom asked whether it would be necessary to specify what cases would be covered by the Optional Clause. Mr. Hackworth replied that the Optional Clause covers four categories of cases and ‘Wad Article 35 of the present Statute: “(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.”

Representative Bloom asked if Congress might not object to some of those cases covered by the Optional Clause. Mr. Fahy noted that under the Optional Clause the World Court would be limited to these four types of problems. Representative Bloom asked if this were safe enough, and Mr. Fahy replied in the affirmative.

Mr. Dulles asked if under this provision the Court would be limited to justiciable questions rather than political questions. He thought that if this were the case, then the Delegation should consider changing the corresponding part of the Dumbarton Oaks Proposals, Chapter VIII, Section A, paragraph 6, which read: “Justiciable disputes should normally be referred to the International Court of Justice.” Mr. Hackworth observed that in the Committee of Jurists, the United Kingdom Delegation had wanted to insert the word “justiciable” in the first paragraph of Article 36 of the Statute.89 He reported that the question of getting “justiciable” had been debated at great length, and that it had also been suggested that the Court’s jurisdiction be limited to all cases “of a legal character”. Congressman Eaton asked if the Committee of Jurists did not know what the word “justiciable” meant. It was stated that there were many different meanings given to this word.

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Mr. Jessup observed that in line with Mr. Dulles’ comment, the language of Chapter VIII, Section A, paragraph 6 of the Dumbarton Oaks Proposals should be toned down, because it suggested at present an obligation to refer justiciable disputes to the Court. Mr. Dulles stated that it might be changed to read that justiciable disputes should be referred to the Court “if the parties have agreed.” Commander Stassen noted that in theory the countries have to agree to action tinder the Security Council, with respect to the pacific settlement of disputes, although he thought that there might actually be Some element of compulsion involved.

Nomination of Judges of the International Court

Mr. Hackworth explained to the Delegation the present system for the nomination and election of the judges of the Permanent Court of International Justice. He stated that the method of making nominations under the present Statute was somewhat complex, but this is a result of a determined effort made by the Committee of Jurists who drew up the original Statute in 1920 to avoid as far as possible the making of selection on the basis of political considerations. Nominations under the present Statute are made by the national groups on the panel of the old Hague Court of Arbitration under the Conventions of 1899 and 1907.90 These national groups (composed of four persons in each country) meet and nominate jurists for election to the Court. Mr. Hackworth stated that no group may nominate more than four persons, not more than two of whom shall be of their own nationality; nor may it nominate more than two persons for the same vacancy. Mr. Hackworth then said that the British representative at the Washington meeting had proposed that each government nominate one of its own nationals, and the Judges would be elected from this list.91

Mr. Hackworth stated that there was a sharp division of view on this matter in Washington and that sixteen countries had favored the British proposal while sixteen others favored retention of the present system.92 Mr. Hackworth recalled that this had been discussed in the United States Delegation in Washington, and that in accordance with the Delegation’s instructions, Chief Justice Strong and Chief Justice Hughes had been consulted. Both emphatically felt that the present system was better than having direct nominations by governments. It was felt that while the United States might try to select the best man, other nations might nominate politicians rather than jurists. Mr. Hackworth stated, therefore, that in the Committee of [Page 496] Jurists the United States representative had supported this system of nomination by national groups.

Representative Bloom asked if a vacancy occurred on the Court in a position to which the United States had appointed a Judge, whether the United States could appoint someone else. Mr. Hackworth replied that while the United States might have nominated a Judge, the Judge would be elected by all of the countries. Mr. Jessup noted that none of the Judges are appointed, but elected by the Council. Representative Bloom still thought that such a vacancy should belong to the United States; he also wanted to know if the countries could not select the Judges in their own way. Commander Stassen felt that the Delegation ought to consider Representative Bloom’s proposal, and that some way should be found to compromise the two points of view so as to make the best of each. He thought that if the vote had been sixteen to sixteen on this matter, it was time to find another way of nominating Judges of the Court.

Mr. Jessup noted that under the present system an international group would nominate two nationals and two other persons, whereas the British were proposing that each government would nominate their own national. This proposal, therefore, constituted a real change and he did not see how the two points of view could be harmonized. Commander Stassen thought it would be necessary to try and blend the two. Mr. Fahy stated that there might be two alternatives: (1) Let each government decide for itself or (2) Let the nomination be made from a group recommended to the government. Representative Bloom said he preferred the first alternative because it would make the people of a country feel that they were independent in the matter. Commander Stassen thought that the group could not go too far on this point at that time because of the absences in the Delegation that morning.

Mr. Notter noted that the result of the British proposal would be that there would always be a Russian Judge on the Court and that any jurist exiled from his country for political activities would be barred from a seat on the Court. Representative Eaton thought that the system of appointment by governments would result in continuous seats for the five big powers. Mr. Dulles noted that the Judges of the Court would be elected by the Assembly. Commander Stassen commented that the major powers would naturally attempt to push their nominees through. He thought, however, that this question would have to be explored thoroughly. Mr. Hackworth noted that under the British proposal, those countries who already had nationals on the Court would in effect be precluded from making further nominations.

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Continuity of the Court

Mr. Hackworth then explained the problem as to whether the present Permanent Court of International Justice should be continued under that name or whether a new Court under some other name, such as the “International Court of Justice”, as used in Chapter VII of the Dumbarton Oaks Proposals, shall take its place. He stated the arguments for continuing the present Court as follows: (1) it would give greater continuity to the system set up under the existing Statute; and (2) it would create less difficulty and confusion with respect to a large number of treaties between states, which provide for the jurisdiction of the Court in certain categories of cases. He noted in this connection that it would be possible to provide in the United Nations Charter that wherever treaties between members of the United Nations refer to an international court, the new court shall be the court intended. Thus, there would be no break in the treaty situation as between members of the United Nations, but there would be between members of the United Nations and states which are not members of the United Nations.

Mr. Hackworth stated the arguments against continuing the Court, as follows: (1) there are a number of parties to the present Statute, who are not members of the United Nations, and hence were not represented on the Committee of Jurists and not represented at San Francisco; (2) there are certain legal difficulties in continuing the existing Court where some of the parties to the present Statute do not become members of the new International Organization; and (3) acceptance, particularly in the United States, of a new court might be more general, in view of the long controversy regarding the United States’ adherence to the old Court.

Representative Bloom asked if the present Court were retained whether it would not avoid a debate in Congress with respect to the establishment of a new court. Mr. Hackworth replied that all the people opposed to the present Court will object. He thought that if a new court were proposed, some of the controversy would be avoided. He noted that the present Court had never been accepted by the United States, and that the Senate had refused to ratify the Protocol several times. He thought it would be desirable to keep the present Court going if it were possible to avoid the recurrence of political controversy. He noted that the judges would have to be elected to the court and that no judges had been elected since 1939. Mr. Hackwotrh stated that three of the United States advisers felt that it was simpler to start fresh with a new court of the United Nations and to take over the equipment of the old Court so that it would be unnecessary [Page 498] to bother with states who are not members of the United Nations.

Mr. Fahy stated that he did not feel strongly on this matter as he did not think it was a critical point. He suggested renaming the court and starting anew. He noted that the revised draft statute retained about 99 per cent of the Statute of the present Court, so that it had the benefit of the experience of the Court. He suggested that it be called “The International Court of Justice”, as stated in the Dumbarton Oaks Proposals.

Mr. Dulles noted that the American Bar Association was unanimously in favor of continuing the present Court. He felt that the Delegation ought to follow the line strongly supported by the American Bar Association. Commander Stassen observed that the jurisdiction of the old Court could be carried forward by a clause in the Charter in which the United Nations could accept a substitution of a new court.

Representative Bloom asked if actually only the name of the court were being changed, since it was stated that 99 per cent of the present Statute would be taken over. Mr. Fahy observed that a new court would really be created, if this statute were adopted. He observed that he did not think that Russia would join the present Court.

Dean Gildersleeve asked what Russia’s attitude was on the Court. Mr. Hackworth said he thought that Russia had no strong feeling one way or another, and would go along with a strong movement in either direction. Representative Bloom stated that the Delegation must consider what it can get most easily from Congress, whether a new or an old court. It was important to avoid any controversy in Congress on the matter of the court. Mr. Hackworth asked if it would be easier to get a new court through the Senate than an old one. Representative Bloom observed that the House of Representatives would have to be considered as well as the Senate. Representative Eaton said that it was important to consider the House because if the House had a strong feeling about a matter, the reaction would be felt in the Senate; and that moreover the House, as the voice of the people, could back up the Senate. Mr. Jessup noted that the House of Representatives had first passed a resolution in favor of a world court.93

At this point, the meeting was adjourned.

  1. April 27, 9:30 a.m.
  2. This meeting was the first of eleven consultations on trusteeship held by delegates of the four Sponsoring Powers and France: April 30, May 3, 5, 8, 14, 23, 29, June 1, 8, 13 and 18; approved minutes of these meetings not printed.
  3. Draft United States proposal on arrangements for international trusteeship, April 26, p. 459.
  4. See memorandum on this subject by the Secretary of State to President Truman, April 23, p. 362; for documents on the meeting of the United Nations Committee of Jurists, April 9–28, 1945, see UNCIO Documents, vol. 14.
  5. For text of the Statute of the Permanent Court of International Justice with revisions proposed by the United States, see Jurist 5, G/5, April 9, ibid., p. 323; for article 36 (compulsory jurisdiction), see ibid., p. 338.
  6. See Jurist 86, G/73, April 25, 1945, report submitted by the Committee of Jurists to the United Nations Conference, UNCIO Documents, vol. 14, p. 821 (for article 36, see ibid., p. 841).
  7. Jurist 58, G/46, April 16, UNCIO Documents, vol. 14, p. 204.
  8. Department of State Treaty Series Nos. 392 and 536, respectively, or 32 Stat, (pt. 2) 1779 and 36 Stat. (pt. 2) 2199, respectively.
  9. Jurist 14, DP/4, April 10, UNCIO Documents, vol. 14, p. 315.
  10. Jurist 57, G/45, April 16, ibid., p. 195.
  11. For resolution approved by the House of Representatives, March 3, 1925, see the Congressional Record, vol. 66, pt. 5, pp. 5404 and 5413. For documentation on proposed accession of the United States to the Statute of the Court, see Foreign Relations, 1926, vol. i, pp. 1 ff.; ibid., 1929, vol. i, pp. 1 ff.; and ibid., 1935, vol. i, pp. 383 ff.