Foreign Relations of the United States, 1946, General; the United Nations, Volume I

501.BF/10–545

Memorandum by the Legal Adviser (Hackworth) to the Acting Secretary of State (Acheson)

[Washington,] October 5, 1945.

As a result of discussions among interested officers of the Department, there appears to be general agreement that (1) this Government should make a Declaration under Article 36, paragraph 2 of the Statute of the International Court of Justice,¹ accepting the compulsory jurisdiction of the Court and to that end (2) the matter should be taken up promptly and informally with appropriate members of the Senate with a view to bringing about requisite Senatorial approval.

The matter is of immediate interest because (1) it is considered desirable, for its moral effect, that the United States should be able to deposit its Declaration either at the December or the April meeting of the General Assembly, and (2) because of the fact that a Senate Resolution has been filed (copy annexed)² recommending that the President take this action.

The particular Resolution which has been filed has been carefully examined in the Department and appears to carry out the ends which we desire. Certain modifications of form were suggested at a meeting of an unofficial group sponsored by Judge Manley O. Hudson, and we understand that Senator Morse intends to introduce a new Resolution incorporating these changes (annex 2).³

As you will observe from the annexed drafts, the Resolution follows very closely the text of paragraph 2 of Article 36 of the Statute. It thus carries out the intention of the framers of the Statute that states accepting this jurisdiction will be submitting only those carefully defined categories of cases which involve the determination of points of law, the facts necessary to such a determination, and the determination of the remedy in case the petitioner is upheld. In other words, the Resolution envisages the submission of the identical type of case which the United States has always been willing to refer to arbitration upon the failure of negotiations. The position of the United States is safeguarded, on the other hand by the reservation of cases previously arising, of cases which are essentially within the domestic jurisdiction of this country, and of cases which the parties may agree to submit to other procedures of settlement.

Signature of such a Declaration would thus appear to be in line with our policy, and will give evidence to the world that we are serious in our intention that the International Court of Justice shall play a significant role in the conduct of international relations.

In taking the matter up with appropriate Senators, it is suggested that this be done in terms of subject matter rather than of the particular Resolution that has been introduced. This is of special importance because of the political position of the sponsor of the Resolution.

A question requiring special attention is that of the effect of the Morse Resolution if adopted. The Resolution simply recommends that the President sign and deposit a Declaration. If a Resolution is adopted by two-thirds vote, and the President proceeds to carry out the recommendation, can anyone go behind this action and claim that it was done without the advice and consent of the Senate? It would of course be possible to amend the first line of the Morse Resolution to read: “The Senate hereby advises and consents that …” It seems to be agreed that if it is made clear on the floor of the Senate that its action by two-thirds vote is regarded as advice and consent, no further question could be raised. It would also be possible to transform the proposed Resolution into a Joint Resolution of both houses. You may wish to discuss with Senator Connally the Procedural question involved.⁴

Green H. Hackworth

[Annex]

The Morse Resolution

Resolved, That the Senate hereby recommends that the President of the United States deposit with the Secretary General of the United Nations, whenever that official shall have been installed in office, a declaration under paragraph 2 of article 36 of the Statute of the International Court of Justice recognizing 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; and

d. The nature or extent of the reparation to be made for the breach of an international obligation.

Provided, That such declaration should be for a period of not to exceed 5 years, and should exclude for its operation:

a. Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method of pacific settlement; and

b. Disputes with regard to questions which by international law fall exclusively within the jurisdiction of the United States.

Provided further, That the President be and hereby is requested to furnish the Senate for its information a copy of any declaration filed by him pursuant to this resolution.

1. For the Statute of the Court, see 59 Stat. (pt. 2) 1031, or Department of State Treaty Series 993.
2. This resolution (p. 54) was introduced by Senator Wayne Morse on July 28, 1945 (S. Res. 160).
3. Not found attached to file copy; see footnote 4, p. 54.

4. Senator Morse subsequently on November 28, 1945 introduced a revised resolution (S. Res. 196) which incorporated the following changes: one, the first lines were amended to read, “Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the deposit by the President of the United States with the Secretary General of the United Nations. …”; and two, the second section incorporating the provisos was re-cast to read:

   “Provided, That such 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.

   “Provided further, That such declaration should remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate the declaration.”

   Text found in Compulsory Jurisdiction, International Court of Justice, Hearings before a subcommittee of the Committee on Foreign Relations, United States Senate, 79th Congress, 2nd Session, p. 1.