Will Ukraine Wind Up Making Territorial Concessions to Russia?
Foreign Affairs Asks the Experts
THERE is no hedging in the agreement reached by the four Powers at Dumbarton Oaks on the question of the inclusion of a court as an integral part of the organization to be known as The United Nations. That is an important fact, even though numerous problems of real complexity relating to the court must still be decided. The basic principle of procedure at Dumbarton Oaks which seeks agreement on fundamentals without being distracted by details is wholly to be commended.
The problems still to be solved so far as the court is concerned may be divided under four headings for the purpose of discussion. The first is whether the present World Court is to be used or a new one created. The second relates to the selection of judges. The third includes the basic question of the court's jurisdiction. The fourth embraces the many details, largely technical, bearing on the amendment of the World Court's Statute.
The Dumbarton Oaks proposals name an International Court of Justice as one of the four "principal organs" of the new organization called The United Nations. The other principal organs listed in Chapter IV of the proposals are a General Assembly, a Security Council and a Secretariat. The conferees of the four Powers specify their common ideas about a court in Chapter VII. The most significant point of agreement is that all members of the organization "should ipso facto be parties to the statute of the International Court of Justice." The important question whether the statute of the future international court of justice should be the present Statute of the Permanent Court of International Justice (usually called the World Court) or whether a new statute should be drafted, lies in the much discussed "ten percent" area in which agreement was not reached. It is agreed, however, that even if the second alternative is chosen and a new statute drafted, the existing Statute of the World Court "should be used as a basis."
It would have been surprising if the Dumbarton Oaks proposals had not included provision for a court of justice. The American, the British and the Chinese mind have traditionally and consistently stressed the legal and judicial aspects of international organization. Frequently they have gone too far and, through an excess of legalism, overs tressed the procedures of international organization at the expense of underlying political and economic fundamentals. The Russians have been less legalistically-minded in their attitude toward international affairs. Even during the period when the Soviet Union was an active member of the League of Nations, and Maxim Litvinoff was challenging the other Powers to take bold steps toward disarmament, Moscow never uttered a friendly word about the Permanent Court of International Justice at The Hague. In several of the general international treaties which, more or less as a matter of course, came to include a provision that in case of disagreement the World Court should have power to interpret the text, the Soviet Government made a reservation. The U.S.S.R. may merely have continued to reflect a distrust which it had in the twenties when the Permanent Court of International Justice began its career; quite soundly from its point of view, the Soviet Government wondered whether any judge on the bench could then be truly impartial with regard to the Soviet Union. This doubt was frankly expressed by Mr. Litvinoff at The Hague in 1922 and by the Soviet Government itself in its refusal to recognize the competence of the World Court in the famous Eastern Karelia case.
It will be recalled that the United States never became an official supporter of the Court. This is not the place to rehearse the sorry story of how Hearst-paper propaganda and political timidity contributed to that result, despite the urgings of every President and Secretary of State, the Bar, labor, agriculture, business, a great majority of the newspapers and most of the leading figures of the country without respect to party. The enemies of the Court succeeded in blocking action by stressing the Court's connections with the League (although we joined the International Labor Organization, which was more closely related to the League, without discussion of the bogey). As this question of international organization comes up anew, it is a relief to know that opponents of all forms of international coöperation can no longer make Americans shudder by mentioning the League of Nations.
The first great question in regard to the judicial branch of the new international organization -- whether the existing World Court is to be retained or a new one built on its Statute -- is broader than the problem of the Court itself. The Dumbarton Oaks conferees must have considered the question of the relation of The United Nations to the League of Nations.[i] They included in their proposals references to various other international organizations now existing or contemplated which would need to be brought into relationship with the new over-all organization. The question is a divisible one and the future status of each particular organization should be considered separately. Clearly, the League of Nations itself must be superseded by The United Nations. Popular opinion and expert opinion are in agreement in this. It is the conclusion reached, for example, by the group of Americans who have had experience with international organizations and who were among the enthusiastic supporters of the League of Nations from the time of its founding. Their findings were made public on August 1, 1944, as "A Design for a Charter of the General International Organization." That same group assumed that the International Labor Organization would be continued, and this is probably the general assumption. They also were firmly of the belief that the Permanent Court of International Justice should be retained as the judicial organ of the new general international organization. The same conclusion relative to the Court was reached in the statement entitled "The International Law of the Future" made public March 27, 1944, as the result of the deliberations of some two hundred judges, lawyers, professors, government officials and men of special international experience. More recently, the American Bar Association at its Chicago meeting on September 12, 1944, adopted through its House of Delegates a resolution in favor of the continuance of the World Court. On November 8, a group of 44 lawyers including Charles C. Burlingham, Roscoe Pound, Charles Evans Hughes and John Bassett Moore released a letter to the Secretary of State supporting the same position.
Granting that the existing Statute of the World Court needs to be revised, it is hard to see why the institution itself should not be preserved. One of the most powerful practical reasons for maintaining it is that there are in existence several hundred international treaties which contain the so-called compromissary clause providing that in case of dispute the Permanent Court of International Justice shall have power to interpret the treaty. A certain number of these treaties may fall as a result of the war, but most of them, by virtue of their general and technical character, will probably continue in force. Anyone familiar with the difficulty of obtaining even the simplest common action by a large number of states, parties to a treaty, will recognize the difficulty of amending this great network of agreements. A close analysis of the provisions of these treaties will reveal that numerous complications would result if the judicial body referred to in their terms ceased to exist. If there were strong reasons why the existing Court should be superseded these difficulties could be faced, but no good reasons appear for taking such a step.
The only arguments which come to mind for superseding the Court are those which might arise out of the historic antagonisms and susceptibilities of the Governments of the U.S.S.R. and of the United States. But the U.S.S.R. has accepted the basic point that there is to be a court, and any objections it might have could as well be met by a modification of the Statute of the World Court as by creating a new court. So far as the United States is concerned, the bogeys of the twenties must be eliminated or The United Nations may never come into existence. If the United States becomes a member of the new over-all organization, as is to be expected, the old objections to joining the World Court largely disappear. Most of them could not have been raised in the old days if the United States had been a member of the League with a seat on the Council. If there are valid objections still unanswered, they can be met by amendments to the Statute.
The two central and most difficult problems connected with the general question of an international court and the specific question of the revision of the Statute of the World Court, have to do with the selection of the judges and with the jurisdiction of the tribunal.
The problem of selection of judges has not received as much emphasis as it deserves in discussions of the judicial settlement of international disputes. The choice of judges to sit on a Court of Arbitration has traditionally involved a laborious process of check and counter-check. Under the older systems of arbitration procedure, whereby judges were selected ad hoc to decide particular cases or groups of cases, it was usual either for the two litigant states to agree upon a single judge, or for each of them to nominate one judge and allow those two to select a third. Sometimes a deadlock could be broken by having the third selected by an outside authority. (A number of existing treaties entrust this duty to the President of the Permanent Court of International Justice.) In such a process each Department of State or Foreign Office would comb the record of each nominee to make sure that the individual in question had never revealed any bias against its country, or any view upon the points of law involved which might be adverse to its contentions. The unsatisfactory nature of this process was one of the factors which led to the insistent demand for the creation of an international court with a fixed bench. This objective was reached with the establishment of the World Court in 1920. With the fixed bench of judges, some governments wondered whether they could obtain justice from the particular men who had been chosen. It is a natural reaction, especially for lawyers. In the practice of law in this country it is not unusual for counsel to weigh any options as to venue in order to have the case tried before this or the other judge. Many of the attacks levelled against the World Court were designed to prove that the judges voted according to their national sympathies and not according to the law. An examination of the record fails to sustain this charge. Judge Anzilotti, the great Italian jurist, voiced his disagreement with the contentions of the Italian Government in the case of the phosphates in Morocco, decided by the Court in 1938; Judge Weiss from France failed to support the contentions of the French Government in what at the time was the rather serious controversy with England over the French nationality decrees in Tunis and Morocco. These are among the instances.
It is true that on many occasions the judges on the bench supported the views of the countries from which they came, but there is no reason to charge them with bad faith in so doing. It is equally plausible to assert that in the particular cases they were convinced of the legal soundness of the position which was taken. More of a case might, however, be made against the so-called "national judges" appointed ad hoc under the Statute to sit in any case when one or both parties did not already have a judge on the bench. These national judges in every case decided in favor of the states from which they came.
The Statute of the World Court provided for these national judges on the theory that the Court would be aided by having present a jurist familiar with the legal thought of every party to a case before it. Actually, the provision helped to smooth the transition from the old system of choosing judges for the particular arbitration to the new system of the fixed bench. It is doubtful whether the inclusion of the national judge could determine the court's decision, in most instances, although such a result is possible where the judges are almost evenly divided. On the other hand, it is rather too much to hope as yet, as a matter of international practice, that if the fixed bench includes a judge of the nationality of the plaintiff, the defendant will be content without redressing the balance. The balance can be achieved by following the present rule of permitting the defendant to name a judge ad hoc or by adopting a new rule requiring the sitting judge of the plaintiff's nationality to withdraw. The Statute does now recognize that a judge may be disqualified from sitting and that in such case he shall not sit; the practice on the bench of the Supreme Court of the United States is similar. It would be possible to consider a judge disqualified if he were of the nationality of either party to the case at bar. Under such a rule, if nationals of both parties were sitting on the bench, both would be disqualified.
A great many of the debates about international arbitration and judicial settlement have turned upon the terms of reference and the problem of jurisdiction. It is unquestionably true that various states have from time to time been most averse to permitting international tribunals to pass upon particular questions about which they felt very strongly. If a government had an uneasy feeling that it was in the wrong it was all the more reluctant to consent to the impartial adjudication of the issue. Something of that psychology found expression in Paragraph 8 of Article 15 of the Covenant of the League of Nations, which reserved from consideration by the Council of the League all questions which under international law are "solely within the domestic jurisdiction" of a state. To a certain extent the Dumbarton Oaks proposals continue to reserve so-called "domestic questions." Section A of Chapter VIII of the proposals deals with "arrangements for the maintenance of international peace and security including prevention and suppression of aggression;" Paragraph 7 excludes the competence of the Security Council or the General Assembly in domestic matters. But when Section B of this chapter deals with "determination of threats to the peace or acts of aggression and action with respect thereto," it permits the Security Council to proceed to emergency action in any situation where there is an actual or potential breach of the peace. One weakness in Paragraph 7 of Section A is that it seems to exclude judicial consideration of the issue whether a particular matter is "by international law . . . solely within the domestic jurisdiction." Yet no more clearly justiciable a category of issues could be conceived. The Permanent Court of International Justice made an admirable analysis of the problem in its Advisory Opinion on the French nationality decrees in Tunis and Morocco.
In popular discussions of an international court there has frequently been misunderstanding of the difference between the usual international and the usual domestic judicial procedure. Domestically, the plaintiff brings his suit, serves his summons, and the court will then proceed to judgment whether or not the defendant chooses to appear. Internationally, the plaintiff state must get the defendant's agreement that a suit will be tried, and that some particular court will be empowered to try it. The great development after 1920 was the number of agreements by which states gave their consent in advance to adjudication by a certain court in certain cases. Is it possible now, in setting up The United Nations, to agree in the Charter that the international court shall have general jurisdiction, like a domestic court? This is the essence of the much-discussed question of "compulsory" jurisdiction.
The jurists who framed the Statute of the World Court in 1920 included provisions giving the Court compulsory jurisdiction in certain defined categories of cases. The League bodies in the course of reviewing the recommendations of the experts were not ready to be so bold. The compromise was the framing of the socalled "Optional Clause" whereby any state so desiring might accept the jurisdiction of the Court for defined types of controversies by means of a separate protocol. Of the 51 states which ratified the Statute of the Court, 45 also accepted the Optional Clause. This latter group included most of the Great Powers. Nevertheless, acceptances of the Optional Clause were commonly qualified by reservations which still left the Court without jurisdiction in many important situations. Compulsory jurisdiction was also conferred upon the Court by a large number of treaties referring to special topics -- the administration of the mandates, for example. It was under such a provision in a Mandate that Greece was able to summon Great Britain before the Court in the Mavrommatis case.
The jurisdiction of the Court to give advisory opinions was under attack in this country for some time, but the Senate finally conceded through the form of its reservations that this could be a proper judicial function. Unbiased students of the work of the Court can have no doubt on the subject. The Dumbarton Oaks proposals would preserve this useful function, although the use of the term "advice" in place of "advisory opinions" in the proposals is inept.
No current consideration of the Court's jurisdiction should overlook the argument that a mistake has been made in seeking to distinguish between legal and political questions and in concluding that only those in the former category can properly go before a court. It is argued that the determination of aggression is a judicial question and should be decided judicially, probably in accordance with some predetermined test of what constitutes aggression. The American people, with their ingrained belief in the fairness of a court, would be more inclined to have such matters decided by judges than by a political body like the Security Council of The United Nations, the argument continues. And it points out further that the constitutional question of the power of the President to utilize the armed forces of the United States against an aggressor, in advance of a Congressional declaration of war, would be less troublesome if the fact of aggression were judicially determined before the President acted.
There is much to commend this approach to the problem, although it must be remembered that the attitude of people in the United States toward judicial processes is not quite typical of that of people in all other countries. The proposal that when a treaty includes a definition of aggression the Court may apply the legal test to the given facts would probably command general assent. But this begs the question to some extent; the attempt to include definitions of aggression in prewar treaties was often unsuccessful. And the still more serious flaw in this procedure is that at this stage of the world's international development it casts too great a burden upon the Court. The issue of the very life or death of an "aggressor" would be before the Court, which would reach its decisions on a black or white basis. A political body like the Security Council, on the other hand, can bring to bear all the forces of diplomacy before the irrevocable word is spoken. The whole gradated scheme of the Dumbarton Oaks proposals is built on the theory that the Security Council will follow the traditional technique of diplomacy and first try to dissuade and then to threaten. Only as a last resort will it mobilize force against an aggressor. The Security Council does not have to identify an "aggressor state" before it can restrain that state from using force, as was necessary under the League system.
The question whether an international court of justice can properly deal with great political questions was raised and much debated when the Council of the League in 1931 asked the Permanent Court of International Justice for an Advisory Opinion relative to the compatibility of the Anschluss with Austria's treaty obligations. The Council finally moved on political lines, and the Court's opinion seemed to be deprived of practical importance. The resulting criticisms were directed less at the Council for interfering with the judicial function than at the Court for being entangled in a political question of vast import, even though a legal question was involved. One is reminded of the attacks on the United States Supreme Court when it rendered its decision in the Dred Scott case in 1857; the New York Tribune claimed that the "Court has rushed into politics. . . ." The proposal to give the Court so wide a power in defining aggression and naming an aggressor would impose upon it the responsibility for making a judgment upon cases so charged with political explosives as to shake the judicial equilibrium of the most irreproachable jurists of history.
To diminish the Court's jurisdiction in any way in a revision of the Statute would be a decidedly retrogressive step. The Preliminary Recommendations on Post War Problems of the Inter-American Juridical Committee, submitted to the Governments of the American Republics in 1942, urged that the jurisdiction of the Court "be extended." Incorporation of the Optional Clause in the Statute -- a return to the position taken by the 1920 Committee of Jurists -- would represent only normal progress. It is clearly desirable, and should be recommended by the United States Government.
From 1897, when the Senate refused to approve the Olney-Pauncefote arbitration treaty, there has been an almost unbroken series of Senatorial objections to proposals which would in advance confer jurisdiction upon an international tribunal in cases to which the United States was a party. The basic trouble is the traditional unwillingness of the Senate to entrust the Executive with full power in this field. The Senate has insisted that its hands be kept on the reins; it will run no risk that a President might perchance agree to a procedure for obtaining an impartial decision in some controversy which might involve the very special sensibilities of one state or region. Yet the President's general constitutional power over foreign relations gives him authority to submit cases to arbitration even without a treaty, and he has frequently done so. During the period between the world wars, the damaging fact was that while other states were groping for a sense of security through the establishment of international processes and binding agreements to use them, the United States was insisting that other countries should simply depend upon our general reasonableness and an expectation that at the time of crisis we would agree to submit a dispute to some improvised procedure. No substitutes for war can be developed if nations maintain such a position. In becoming a member of The United Nations, the United States must accept the proposition that procedures for peaceful settlement of international disputes must be developed far in advance of the crisis, and that the broadening of the jurisdiction of international courts is an essential part of the development.
The American Bar Association, at its last meeting, declared in favor of obligatory jurisdiction for an international judicial system which would be capped by the Permanent Court of International Justice and strengthened by a system of Circuit Courts "to hold regular terms in the Capital of each member nation of the International Judicial System." There has long been a difference of opinion among those favoring the cause of international adjudication, as to whether more than one permanent court should be established. In particular, should there be an Inter-American Court of Justice for the American Republics? Those opposed to the idea maintain that there is not enough judicial business fully to occupy two high international tribunals, nor sufficient personnel of the proper type to staff more than the one court at The Hague. And some demur at the cost of another tribunal. On the other hand, it has been suggested that the ready availability of other courts, and the fact that their benches were composed of judges more familiar with regional interests, would lead states to submit more cases to judicial settlement. The Bar Association's proposal takes a middle ground, in the sense that it would keep the Permanent Court of International Justice as the highest court; the Circuit Courts which it advocates would act as tribunals of original jurisdiction from which, presumably, appeals might be taken to the Court at The Hague. The personnel difficulty is met by the suggestion that the Circuit Courts be staffed by judges of the World Court riding circuit, on the historic United States model.
The idea has much to commend it. The cost of international judicial proceedings in the past has been high. This fact is reflected in the language of the Inter-American pecuniary claims convention of 1902, which contained an obligation to arbitrate all claims for loss or damage "when said claims are of sufficient importance to warrant the expenses of arbitration." Moreover, the Permanent Court of International Justice should be relieved of the necessity of concerning itself with cases raising points of minor importance; the Supreme Court of the United States is thus protected. The revision of the Statute of the Court might well indicate what types of cases are sufficiently important for the Court at The Hague to be given original jurisdiction over them. Circuit Courts might obviate the need for Mixed Claims Commissions which are now periodically established to handle an accumulation of cases. In this type of international litigation it is not uncommon for a case to fail to find a forum for 50 years, and in such instances the original amount of the claim has increased, at simple interest, by 300 percent.
The postwar period will see a large amount of international litigation of the kind which, after the First World War, was referred to the network of Mixed Arbitral Tribunals established under the peace treaties. Some such emergency judicial machinery may be necessary again, particularly for unscrambling the complicated property cases which arise in times of belligerent occupation of enemy and friendly territory. It is doubtful whether the proposed Circuit Courts could handle this business.
The amendments to the Statute of the Permanent Court of International Justice should include provisions for a regular appellate jurisdiction, in order that decisions of Circuit Courts or special ad hoc courts can find a source of unification of conflicting views, just as in our federal judicial system the Supreme Court effects a reconciliation among Circuit Courts of Appeal. When a leading case has been decided by the Court at The Hague, inferior courts thereafter should no longer need to look elsewhere for an authoritative exposition of the rule of law laid down in the case. For this reason there should be an amendment to Article 59 of the present Statute which declares that "The decision of the Court has no binding force except between the parties and in respect of that particular case." To the extent to which this article restates the rule of res adjudicata as between the parties, it is sound. But to assert that the decisions of the Court do not constitute authoritative statements of international law which should be followed by inferior courts is a relic of the transitional period of the twenties. The old doctrine would be inconsistent with the Dumbarton Oaks proposals which provide that all members of The United Nations shall also be parties to the Statute of the Court. One of the important functions of the Court is to give to international law the gradual and reasoned development which national courts have given to Anglo-American law, by applying general precepts and principles to specific situations. There may be need of adjustment between the civil law and the Anglo-American view which meticulously separates the "holding" in a case from mere obiter dicta. Civil law jurists less addicted to case law and more respectful of the views of learned writers find our distinctions curious. It is odd to find that in a brief, or even a judicial decision, the views of a second-rate or third-rate author of a book or article may be preferred to those of a Marshall or a Story because the latter have been expressed obiter from the bench.
The mechanical problem of amending the Statute of the Permanent Court of International Justice in order to incorporate the necessary changes in the existing institution presents technical difficulties. It is generally held that a treaty can be modified only with the consent of all the parties thereto. Nonetheless, multi-partite treaties of general interest have in practice been amended without unanimous concurrence. In the case of the World Court, the treaty in question is not the Statute alone but the document known as the Protocol of Signature, to which the Statute is annexed. On signing this Protocol, a state declares that it accepts the jurisdiction of the Court in accordance with the terms and subject to the conditions stated in the Statute. The Statute and the Protocol are silent as to the way in which the former may be amended.
When revisions were made in the Statute in 1929, largely to meet objections voiced by the United States, their adoption was provided for by a new Protocol to enter into force on a named date if the Council of the League of Nations was then satisfied that the parties to the earlier Protocol had no objection to the changes coming into force. Objections were apparent, however, and another attempt was necessary before the purpose was achieved. Since the original Statute had been drawn up in response to a duty imposed upon the Council of the League of Nations under Article 14 of the Covenant, there was a natural feeling in Geneva that the League bodies should deal with all proposed revisions. It is neither advisable nor feasible at this stage to attempt to act through the League Council and Assembly in amending the Statute of the Court. Those bodies might meet and take confirmatory action if that were deemed politic. It may be necessary for them to meet in order to bring about an orderly succession or supersession of the League of Nations and its projects and interests. If so, action on any revised Statute of the Court would be an important item on their agenda. But if a substantial number of states, signatories of the existing Protocol, agree to an amended Statute, the existing Court could function under that Statute. A state not party to the new protocol of amendment might be freed from any obligation laid upon it by virtue of its signature of the earlier protocol or the Optional Clause, but it is unlikely that any state ready to become a member of The United Nations would be unwilling to join in supporting the reorganized tribunal.
The existing Statute of the Court contains provisions in connection with the election of judges which require amendment, since they rely upon using the Council and Assembly of the League as electoral bodies. This scheme, developed by Elihu Root, solved the old controversy which had made it impossible for the large and small states to agree upon a method. The device rested upon the idea that the Assembly was controlled by the small states and the Council by the Great Powers. If the two bodies, voting concurrently but separately, agreed upon the choice of a nominee, that person was declared elected. The scheme worked well in practice, although as a matter of fact the membership of the Council of the League was soon expanded so that the Great Powers no longer held a numerical majority. The situation revealed the truth that in international affairs of moment, the Great Powers are not brusquely overridden by a majority grouping of small states. The influence of the Great Powers, which flows from their importance, is more potent than any clever formula. Formulas are nonetheless necessary to secure original acceptances of plans for coöperation among large and small states.
The Dumbarton Oaks proposals contemplate the existence of an Assembly and two Councils, the Security Council, and the Economic and Social Council. It is a relatively simple matter to draft a formula to use two of those bodies in place of the League Assembly and Council for the election of judges to the World Court. Nominations could be made by the national groups on the panel of the Permanent Court of Arbitration, in much the same way as at present; or a variation on that theme to suit any particular demand could be easily provided.
There was to have been an election of judges of the World Court in the autumn of 1939, but it was not held -- for obvious reasons. As a result, the judges, all of whose terms expired at that time, were held over under the provisions of the Statute. Of these 15 judges, 12 still hold office. As of last July, three were over 75 years of age, five over 70, and nine out of the 12 were over 65. An amendment to the Statute might provide that no person shall be nominated if he is over a certain age -- say 65, or even 60. Meanwhile, if it were necessary, the Court could meet with a quorum of nine judges. Its Chamber of Summary Procedure requires only five judges.
There are obviously a multitude of questions to be worked out in connection with the position of a Court in the new international structure. But there is none which appears to be of major political consequence in comparison with the basic decision to accept the plan for The United Nations. Like other aspects of the new organization, questions relating to the Court will require a plethora of talk. The history of the World Court will be reviewed and the value of particular parts of its work and structure will be hotly debated. But the discussion will be useful if it can be focussed on the central problem: to establish provisions for the choice and service of judges of the Court that will attract to its bench the ablest jurists of all legal systems of the world. If the bench is selected on the basis of judicial competence, the Court will find ample work within the new international framework. If it is thus staffed, the still prevalent reluctance to give it the jurisdiction necessary to deal with important questions will diminish. The Court can then contribute its large part to the general objective of a peaceful and well-ordered world.
[i] On this, as on other points, further announcements of added items of agreement may be published before this article appears.
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