501.BF/6–346
The Secretary of State to the Chairman of the Committee on Foreign Affairs of the United States House of Representatives (Bloom)
My Dear Mr. Bloom: Referring to your letter of April 17, 1946,5 transmitting for the comment of the Department of State copies of H. J. Res. 291, a joint resolution “Authorizing the President, on behalf of the United States, to accept and recognize the jurisdiction of the International Court of Justice in certain categories of international legal disputes involving the United States”,6 I take pleasure in transmitting to you the Department’s views.
The action contemplated in the joint resolution would be in conformity with Article 36, paragraph 2 of the Statute of the International Court of Justice, which provides:
“2. The states parties to the present Statute may at any time
declare that they recognize as compulsory ipso
facto and without special agreement, [Page 56] in relation to any other state
accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning:
It is noted in the first place that by making a declaration under this paragraph, the United States will be bound only with respect to those states accepting the same obligation. The joint resolution would exclude from the scope of the proposed declaration cases which arose in the past or which are essentially within the domestic jurisdiction of the United States, and would leave the parties free to seek some other form of settlement if they so agree. Each of these principles is already explicit in Article 2, paragraph 7, and Article 95 of the Charter of the United Nations.
I have had occasion to consult with the President regarding this important proposal and have consequently been able to reply to previous inquiries concerning the matter by stating that the President and the Department of State favor the making of a declaration accepting the Court’s jurisdiction under the above-mentioned Article of the Statute. The Department has stated further that it considers that either H. J. Res. 291, which is the subject of your inquiry, or S. Res. 196 furnishes an appropriate legal basis for such a declaration. I enclose a statement recently issued by the Department on this subject.7
The Members of the United Nations have declared in the Preamble of the Charter their determination “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” Among the purposes of the United Nations as set forth in Article 1, paragraph 1 of the Charter is the settlement of international disputes “in conformity with the principles of justice and international law.”
The United Nations Conference on International Organization, which drafted the Charter, also approved a Recommendation that Members of the United Nations, as soon as possible, make declarations [Page 57] recognizing the obligatory jurisdiction of the International Court of Justice according to the provisions of Article 36 of the Statute. The completion of the procedure initiated by H. J. Res. 291 would have as one result the carrying out, by the United States, of this recommendation.
The Department of State concurs in the views thus expressed by the United Nations, first that the establishment of the rule of law is an underlying element in the achievement of international order, and second, that the general acceptance of the Court’s jurisdiction in proper (that is to say, legal) cases is an integral part of the accomplishment of this end.
It is, perhaps, desirable to make clear that the passage, above referred to, in Article 1 of the Charter is not to be interpreted as implying that all disputes between states which have accepted the Court’s jurisdiction under Article 36, paragraph 2, are to be submitted to the Court for adjudication. It will be noted that the Resolution under consideration, and the provision of the Statute which it seeks to implement, are carefully drawn so as to include within their scope only those cases which are appropriate for judicial action, namely, cases involving legal disputes. Since this country has always supported respect for law, and has carried out this policy by submitting thousands of cases to arbitration, the proposed step has the effect of undertaking an obligation to do that which is already a well-established policy of this Government.
Substantial gains are to be anticipated from this proposed step. The law cannot play an effective role so long as states retain the right to decide for themselves what the law is, regardless of the degree of good faith by which they govern their actions. The appropriate remedy for this situation would appear to be general and genuine acceptance of an international judiciary with powers adequate to enable it to fulfill the elementary function of a judiciary to decide all disputes of law. It is particularly appropriate that the United States should take this action, both because it is a leading advocate of the international system embodied in the United Nations Charter, and because it is a country which has always placed a high value on the law and on the judiciary.
It is to be anticipated that the great majority of the Members of the United Nations will deposit declarations similar to that proposed in H. J. Res. 291. A similar option was provided in the Statute of the Permanent Court of International Justice, and was exercised by forty-four of the fifty-one states which were members of that Court at one time or another. The Statute of the present Court includes a provision by which unexpired declarations made under Article 36 of the old Statute are continued in force and made applicable to the jurisdiction of the present Court. This provision is, of course, applicable [Page 58] only as among parties to the Statute of the Court. As a result of this provision, it is estimated that some nineteen declarations are continued in force. The probability that many other states will deposit declarations is indicated by the fact that the majority of the delegations at the San Francisco Conference favored incorporating in the Statute a general commitment by which all members would accept the jurisdiction of the Court as to the categories of cases referred to. (United Nations Conference on International Organization, Report of Committee IV/1, Doc. 913, IV/1/74(1), pp. 10–11). In the interest of achieving unanimous agreement, however, it was decided to leave such acceptance to the option of the various states.
In conclusion, I may note that there has been strong sentiment in favor of general compulsory jurisdiction among professional groups in the United States, as indicated by resolutions of such organizations as the American Bar Association, the Federal Bar Association, the Inter-American Bar Association and the American Society of International Law.8
[Page 59]The Department has been informed by the Bureau of the Budget that there is no objection to the submission of this Report.
Sincerely yours,
- Not printed.↩
- Introduced by Congressman Christian A. Herter on December 17, 1945. The proposed action took the form of a joint resolution which “authorized and requested” the President to take action similar to that set forth in the revised Morse resolution. The Herter resolution in its operative part was identical, with minor exceptions, to the Morse resolution.↩
- The position of President Truman and the Secretary of State, regarding the general question of making a declaration of acceptance of the Court’s jurisdiction and the particular question of a choice of the legal form as raised by the Morse and Herter resolutions, was made public in letters of February 25 and February 23, by the President and Secretary Byrnes respectively, to Mr. Raymond Swing, Chairman of the Board of Directors of Americans United for World Organization, Incorporated. The President’s letter was printed in the New York Herald Tribune, March 1, p. 1, and the Secretary’s letter in the Department of State Bulletin, April 21, 1946, p. 633. These letters were entered in the legislative record by Senator Morse on July 11; see Compulsory Jurisdiction, Hearings, pp. 14 and 15.↩
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In the legislative process S. Res. 196 was taken up by the Senate Committee on Foreign Relations where on June 12 the Chairman of the Committee, Senator Tom Connally, appointed a subcommittee to hold hearings. These took place on July 11, 12, and 15, with Acting Secretary of State Dean Acheson and the Legal Adviser of the Department (Fahy) as the principal public witnesses. A number of witnesses appeared for important private organizations and the following documents were placed in the record on July 11: a letter dated July 8, 1946 from Prof. D. F. Fleming of Vanderbilt University; a statement by Dr. Quincy Wright, well-known publicist; a letter dated July 3, 1946 from Dr. Pitman B. Potter, Secretary. The American Society of International Law, enclosing a resolution adopted at the annual meeting of the Society at Washington, D. C. on April 27, 1946; and a memorandum by Mr. John Foster Dulles (texts of these documents are to be found in Compulsory Jurisdiction, Hearings, pp. 41–45).
During the period July 17–24 the full Committee considered the findings of the subcommittee and it was at this time that a complete discussion of the legal and constitutional issues involved led to the decision that the revised Morse resolution provided a more appropriate legal basis of the proposed declaration, based as it was on the treaty-making process. Regarding this question, it was pointed out in the Committee’s Report (International Court of Justice, Report of the Foreign Relations Committee, No. 1835, 79th Congress, 2nd Session, p. 10) that “Inasmuch as the declaration would involve important new obligations for the United States, the committee was of the opinion that it should be approved by the treaty process, with two-thirds of the Senators present concurring. The force and effect of the declaration is that of a treaty, binding the United States with respect to those states which have or which may in the future deposit similar declarations. Moreover, under our constitutional system the peaceful settlement of disputes through arbitration or judicial settlement has always been considered a proper subject for the use of the treaty procedure. …”
On July 24 the Committee reported the resolution to the Senate for favorable action.
For relevant documentation, see Compulsory Jurisdiction, Hearings; International Court of Justice, Committee Report No. 1835; Congressional Record, 79th Congress, 2nd Session, vol. 92, pt. 8, pp. 9938, 10553–10557, 10613–10618, 10621–10626, 10629–10632, 10683–10697, 10698–10704, 10706 (passage, text); S. Res. 160, 79th Congress, 1st Session, July 28, 1945; S. Res. 196, 79th Congress, 1st Session, November 28, 1945; H. J. Res. 291, 79th Congress, 1st Session, December 17, 1945; and Department of State Bulletin, July 28, 1946, pp. 154–161 (for statements made by Messrs. Acheson and Fahy before the subcommittee on July 15).
↩