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The International Court of Justice, the Senate, and Matters of Domestic Jurisdiction

Published online by Cambridge University Press:  20 April 2017

Lawrence Preuss
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Extract

It has been remarked that the Government of the United States “seldom loses an opportunity to profess its loyalty to international arbitration in the abstract. … The expression of this sentiment has become so conventional that a popular impression prevails that it accords with the actual policy of the United States.” This ambivalent attitude is nowhere more clearly illustrated than in a memorandum addressed by Mr. John Foster Dulles on July 10, 1946, to the Senate Committee on Foreign Relations. “The United States, since its formation,” Mr. Dulles states, “has led in promoting a reign of law and justice as between nations. In order to continue that leadership, we should now accept the jurisdiction of the International Court of Justice. If the United States, which has the material power to impose its will widely in the world, agrees instead to submit to the impartial adjudication of its legal controversies, that will inaugurate a new and profoundly significant international advance.” Although the initial step of accepting the compulsory jurisdiction of the Court would in itself be “of profound moral significance,” it would, Mr. Dulles continues, “assume greatly increased practical significance” only when “limiting factors” have been removed, for the “path is as yet so untried that it would be reckless to proceed precipitately,” the Court “has yet to win the confidence of the world community,” and “international law has not yet developed the scope and definiteness necessary to permit international disputes generally to be resolved by judicial rather than political tests.”

Type
Research Article
Information
American Journal of International Law , Volume 40 , Issue 4 , October 1946 , pp. 720 - 736
Copyright
Copyright © American Society of International Law 1946

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References

1 Manley O. Hudson, this Journal, Vol. 22 (1928), pp. 368, 369.

2 Pp. 43-45, Hearings before a Subcommittee of the Committee on Foreign Relations, United States Senate, 79th Congress, 2d Session, on Senate Resolution 196, A Resolution proposing acceptance of compulsory jurisdiction of International Court of Justice by United States Government (cited hereinafter as Hearings).

3 To exclude from the jurisdiction of the Court “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.” Congressional Record, Vol. 92, No. 153, Aug. 1, 1946, p. 10760.

This amendment, accepted by the Senate without debate or objection, was apparently formulated without reference to Articles 59 and 63 of the Statute of the Court. It is difficult to wrest any intelligible meaning from the language which Mr. Dulles employed in suggesting it, and it seems doubtful that the Committee on Foreign Relations, which drafted the amendment, succeeded in formulating in legal terms whatever purpose he may have had. See Senate Report No. 1835 [to accompany S. Res. 196], 79th Cong., 2d Sess., pp. 6, 7 (cited hereinafter as Report).

4 To insert the italicized words in the following exclusion: “b. Disputes with regard to matters which are essentially within the domestic jurisdiction of the United States, as determined by the United States.” Approved, yeas 51, nays 12. Cong. Rec., Vol. 92, No. 154, Aug. 2, 1946, p. 10841.

5 To insert a further exclusion: “Disputes where the law necessary for decision is not found in existing treaties and conventions to which the United States is a party and where there has not been prior agreement by the United States as to the applicable principles of international law.” Rejected, yeas 11, nays 49. Cong. Rec., Vol. 92, No. 154, Aug. 2,1946, p. 10849.

In proposing this amendment, Mr. Dulles asserted that the United States can “properly refrain from subjecting itself” to judgments based upon “alleged custom, teachings, etc.” Mr. Dulles thereby reveals himself to be plus positiviste que les positivistes. They, at least, acknowledge generally accepted international custom as a legal source subsidiary to treaties, although, in order to preserve the symmetry of their consensual theory, they are compelled to fall back upon the fiction of “tacit consent” as the basis of its binding force.

6 Same, p. 10850.

7 For the text of the declaration and the note of the Acting United States Representative to the United Nations, Aug. 26, 1946, transmitting the declaration for deposit with the Secretary-General, see Doc. US/ICJ/5, Department of State Bulletin, Vol. 15, No. 375 (Sept. 8, 1946), p. 452.

8 During the Senate debate, Senator Thomas questioned the use of the term “reservation” as descriptive of the proposed amendments, on the ground that the Morse Resolution was not part of an international agreement, but was initiated by the Senate. Cong. Rec., Vol. 92, No. 153, Aug. 1, 1945, pp. 10757, 10758. However, the amendments added by the Senate have become reservations by inclusion in the United States Declaration accepting the jurisdiction of the Court under Art. 36 (2) of the Statute, which is itself a treaty. See Report, p. 5.

9 The term “obligatory” is used herein to describe the jurisdiction provided in a treaty which prescribes an obligation to submit certain classes of disputes to arbitration or judicial settlement, but necessitates the conclusion of a special agreement for the submission of each specific dispute. A treaty of obligatory arbitration or judicial settlement, therefore, is, in a sense, “only an agreement to agree—a pactum de contrahendo. The obligation which it creates falls far short of creating a compulsory jurisdiction. The latter may be said to exist only where a particular tribunal, either preexisting or susceptible of being brought into existence without the concurrence of the parties to the dispute, is endowed with power to decide a dispute upon the application of a single party.” Hudson, Manley O., International Tribunals: Past and Future, Washington, 1944, p. 75 Google Scholar. Philip C. Jessup suggests that the term “compulsory” is misleading and that it would be more precise to speak of the “automatic” jurisdiction of the Court. “The International Court of Justice of the United Nations,” Foreign Polio/Reports, Vol. 21 (Aug. 15, 1945), p. 156. The word “compulsory,” in any case, is redundant when used in connection with jurisdiction accepted under Art. 36 (2) of the Statute. Jessup, in Hearings, p. 149. There is always a danger that “compulsory” will be deemed to refer to the possible use of compulsion to enforce the judgments of a tribunal, and that the absence of a determinate sanction to compel compliance will imply that they have only a “moral” and not a ‘‘legal” force. Senator Austin apparently holds this typically Austinian view, for from the fact that “this court does not have a sheriff and does not have power of execution,” he concludes that “the only power this court has is moral power. . . .” Cong. Rec., Vol. 92, No. 153, Aug. 1, 1946, p. 10763.

10 A Senate amendment to Article 1 of the Olney-Pauncefote Treaty, rejected by the Senate on May 5, 1897, provided that “no difference shall be submitted under this treaty which, in the judgment of either power, materially affects its . . . foreign or domestic policy. . . .” For the text, see “Arbitration and the United States,” World Peace Foundation Pamphlete, Vol. 9 (1926), p. 509.

An amendment added by the Senate to Article 3 of the Taft-Knox treaties, concluded with Great Britain and France, respectively, on Aug. 3, 1911, contained the proviso that “the treaty does not authorize the submission to arbitration of any question which affects the admission of aliens into the United States, or the admission of aliens to the educational institutions of the several states, . . . or concerning the question of the alleged indebtedness or monied obligation of any state of the United States, . . . or other purely governmental policy.” President Taft declined to take further action on these treaties on the ground that, having come back “thus crippled and maimed” by this and other amendments, they were “not very useful.” Same, p. 534.

11 The reservation as to disputes which affect “the vital interests, the independence, or the honor” of either party, contained in the Root treaties of 1908-1909, covers, of course, disputes concerning matters of domestic jurisdiction. In the Kellogg treaties, initiated by the treaty with France signed on Feb. 6, 1928, this formula is replaced, in part, by the proviso that the treaty “shall not be invoked in respect of any dispute the subject matter of which (a) is within the domestic jurisdiction of either of the High Contracting Parties. . . .” Article 2 of the Inter-American Treaty of 1929, proclaimed April 16, 1935, excepts from the stipulations of the treaty controversies “which are within the domestic jurisdiction of any of the Parties to the dispute and are not controlled by international law. ...”

12 Telegram to President Wilson, March 18, 1919. Miller, David Hunter, The Drafting of the Covenant, New York, 1928, Vol. I, p. 277 Google Scholar. The provision, which, with minor stylistic changes, was to become Art. 15 (8) of the Covenant was drafted by the President on the basis of Mr. Taft’s suggestion, and was approved by the Commission on the League of Nations at its meeting of March 24, 1919. Same, Vol. II, p. 350. On the American origin of this provision, which the author considers to be the expression d’un exclusivisme farouche, see Mariette, Pierre, Les limites actuelles de la compétence de la Société des Nations, Paris, 1926, pp. 124-128 Google Scholar; Sukiennicki, W., La souveraineté des états en droit international moderne, Paris, 1927, pp. 352-362 Google Scholar.

13 The fourth reservation provided: “The United States reserves to itself exclusively the right to decide what questions are within its domestic jurisdiction and declares that all domestic and political questions relating in whole or in part to its internal affairs, including immigration, labor, coastwise traffic, the tariff, commerce, the suppression of the traffic in women and children and in opium and other dangerous drugs, and all other domestic ques- , tions, are solely within the domestic jurisdiction of the United States and are not under this treaty to be submitted in any way either to arbitration or to the consideration of the council or of the assembly of the League of Nations, or any agency thereof, or to the decision or recommendation of any other power.” Cong. Rec., Vol. 59, Pt. 5, 66th Cong., 2d Sess., March 19,1920, p. 4599.

14 Great Britain, Parliamentary Papers, Misc. No. 8 (1929); this Journal, Vol. 25 (1931), Supplement, p. 85. Under the influence of Art. 15 (8) of the Covenant, similar reservations had been inserted in a number of postwar treaties of arbitration. For example, Art. 2 of the Helsingfors treaty of 1925 (Efetonia-Finland-Latvia-Poland) provided that the obligation of the treaty should not “apply to questions the legal nature of which makes them subject solely to the domestic legislation of the Party concerned. ...” League of Nations, Treaty Series, Vol. 38, p. 359.

15 Australia, Brazil, Canada, Great Britain, India, Iran, New Zealand, and South Africa, in addition to the United States. All of the reservations of matters of domestic jurisdiction made under the former Statute are identical with that of Great Britain, with the exception of the Brazilian declaration, which reserves “questions which, by international law, fall exclusively within the jurisdiction of the Brazilian courts of law, or which belong to the constitutional régime of each State.”

16 It was provided in Ch. VIII, A (7) of the Dumbarton Oaks Proposals that the provisions relating to pacific settlement “should not apply to situations or disputes arising out of matters which by international law are solely within the domestic jurisdiction of the state concerned.” On May 4, 1945, the Four Sponsoring Governments proposed an amendment by which the above paragraph was suppressed and a new formula substituted, which, with an Australian amendment, became Art. 2 (7) of the Charter. Documents of the United Nations Conference on International Organization, Vol. 6, pp. 567, 513 (cited hereinafter as Conference Documents). Art. 2 (7) reads:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the appUcation of enforcement measures under Chapter VII.

The transfer of the paragraph on domestic jurisdictionfrom the section on pacific settlement to the chapter on “Principles” made it “a general principle and hence widened the scope of its application. The change of place in this case involved a change in the portée of the text.” Report of the Rapporteur of Subcommittee I/l/A to Committee I/1, Conference Documents, Vol. 6, pp. 507-508.

17 Report, p. 5.

18 Memorandum on the Signature of His Majesty’s Government in the United Kingdom of the Optional Clause of the Statute, Parliamentary Papers, Misc. No. 12 (1929), Cmd. 3452; this Journal, Vol. 25 (1931), Supplement, p. 93. See H. Lauterpacht’s comments upon this statement in Economica, June 1930, p. 149.

19 To use Professor J. L. Brierly’s phrase: “Matters of Domestic Jurisdiction,” British Yearbook of International Law, Vol. 6 (1925), p. 8.

20 Cong. Rec., Vol. 92, No. 153, Aug. 1, 1946, pp. 10755, 10762.

21 Brierly, J. L., “The General Act of Geneva, 1928,” British Yearbook of International Law, Vol. 11 (1930), p. 129 Google Scholar; italics in original.

An international tribunal nes’occupe pas des affaires domestiques pour indiquer comment elles doivent être réglées. Il s’en occupe seulement au point de vue formai pour dire à qui en revient le règlement: Politis, N., Le problème des limitations de la souveraineté et le théorie de l’abus des droits dan les rapports internationaux, in Recueil des Cours de l’Académie de Droit International, T. VI (1925-1), p. 43 Google Scholar; Schindler, D., Le progrès de l’arbitrage obligatoire depuis la création de la Société des Nations, same, T. XXV (1928-V), p. 304 Google Scholar

22 See Gihl, Torsten, International Legislation, London, 1937, pp. 82-99 Google Scholar; Lacunes du droit international, in Acta scandinamca juris gentium, Vol. 3 (1932), pp. 37-64; Lauterpacht, H., The Function of Law in the International Community, Oxford, 1933, pp. 60-84 Google Scholar; Borei, Eugène, in Annuaire de l’Institut de Droit International (1931-1), pp. 65-76 Google Scholar; Tahsin, H., No Man’s Land du Droit des Gens, Paris, 1936 Google Scholar.

23 “The War-Prevention Policy of the United States,” this Journal, Vol. 22 (1928), p. 256.

“Eminent statesmen and jurists insist that questions like immigration are not ‘arbitrable.’ In fact, they are a typically appropriate subject for judicial settlement. An international court will in such cases invariably pronounce that the claim [which runs counter to the rule of international law that recognizes such matters to be of domestic jurisdiction] must be dismissed. To submit questions of immigration to arbitration does not mean to expose it to the risks of bargaining and compromise by political mediators; it means having the right to exclusive regulation of immigration upheld by an impartial decision more authoritative than the fiat of the State concerned. H. Lauterpacht, work cited, p. 174.

24 Cong. Rec., Vol. 92, No. 154, Aug. 2, 1946, pp. 10836-10838.

25 Rejection by the tribunal of the claim of the “plaintiff” state on the ground that it is without support in international law is equivalent to holding that there exists no rule of international law which limits the freedom of action of the “defendant” state within the “reserved domain” of its domestic jurisdiction. Fachiri, A. P., The Permanent Covrt of International Justice: Its Constitution, Procedure and Work, London, 1932, pp. 73, 103Google Scholar; SirWilliams, John Fischer, Current Chapters on International Law and the League of Nations, London, 1929, pp. 50 ffGoogle Scholar. During the meetings of the Advisory Committee of Jurists at The Hague in 1920 the subject of lacunae was fully discussed. Proees-verbaux of the Proceedings of the Committee, pp. 293-297, 307-321. Mr. Root having expressed the opinion that the Court might in exceptional cases have to pronounce a rum liquet, M. Ricci-Busatti said: “By declaring the absence of a positive rule of international law, in other words an international limitation on the freedom of the parties, nevertheless a legal situation is established. That which is not forbidden is allowed; that is one of the general principles of law which the Court would have to apply. If a case is brought before the Court and if the latter finds that no rules exist concerning it, the Court shall declare that one party has no right against the other, that the conduct of the accused State is not contrary to any admitted rule.” Same, p. 314.

26 Cong. Rec., Vol. 92, No. 153, Aug. 1, 1946, p. 10765.

27 Borel, E. and Politie, N., L’extension de l’arbitrage obligatoire et L• compétence obligatoire de la Cour Permanente de Justice International, in Annuaire de l’Institut de Droit International (1927-11), p. 675 Google Scholar.

28 Report, p. 5.

“The principle that each State shall be the sole and exclusive judge of the expediency of policies which are purely and admittedly domestic, is sound and incontestable. But grave differences may easily arise as to whether a particular dispute involves merely a domestic question or whether it is really an international one. ... It is one thing to recognize, as we must, the right of every sovereign state to determine freely its own domestic policies; it is a wholly different proposition to maintain that a state is the sole and exclusive judge of whether a particular policy or question is purely domestic, when it gives rise to an issue with another state whose rights are affected by such policy and which claims that it involves an ‘international matter.’ It is easily conceivable, in the absence of a common judge, that either party to a dispute if it wishes to evade its treaty obligation to arbitrate, may claim that the dispute is one involving a domestic policy, and from its decision there is no appeal.” Garner, James W., “The New Arbitration Treaties of the United States,” this Journal, Vol. 23 (1929), p. 598 Google Scholar.

29 Hearings, p. 129.

30 Same, p. 36.

31 Cong. Rec., Vol. 92, No. 154, Aug. 2,1946, p. 10831. Senator Austin later stated in the Senate: “Mr. President, I am supporting the [Connally] amendment. I would rather see the resolution not contain it, but for many reasons I shall vote for the amendment.” Same, p. 10840.

32 Same, No. 153, Aug. 1, 1946, p. 10761.

33 Same, p. 10763.

In his statement before the Subcommittee, Mr. Charlee Pahy, Legal Adviser of the Department of State, said : “ Although parties to cases are obligated to comply with the decisions of the Court, which is a moral obligation based on the provisions of the Charter, there is no provision for the enforcement of such decisions unless the failure to comply constitutes a threat to the peace of breach of the peace under article 39 of the Charter. There is an article in the Charter (art. 94, par. 2) which provides that a party may resort to the Security Council if the other party fails to carry out the judgment and that the Security Council may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. This Government takes the position that the Security Council’s action under this article is limited by the scope of its powers as defined in article 39. that is, it must first be determined by the Security Council that the breach constitutes a threat to. or breach of, the peace or an act of aggression (hearings on the Charter. Senate Foreign Relations Committee, Pasvolsky testimony, pp. 285-287; Hackworth testimony, pp. 330 -332). Hearings, p. 142. Also, L. Preuss, “The International Court of Justice and the Problem of Compulsory Jurisdiction,” in Depirttnent of State Bulletin, Vol. 13, No. 327 (Sept. 30, 1945), pp. 476, 477.

34 Cong. Rec., Vol. 92, No. 153, Aug. 1, 1946, p. 10763.

35 Same, No. 154, Aug. 2, 1946, p. 10833; No. 153, Aug. 1, 1946, No. 153, p. 10770; No. 154, Aug. 2, 1946, p. 10828.

36 Same, No. 154, Aug. 1946, pp. 10833-10834.

37 Same, p. 10831.

38 On the influence of doctrines of fundamental rights and of sovereignty on the concept of domestic jurisdiction, see Ullmann, Fritz, Die ausschliessliche Zuständigkeit der Staaten nach dem Völkerrecht, in Kölner rechtwmenachaftliche Abhandlungen, Heft 10 (1933), pp. 18 ff.Google Scholar; Thadden, Eberhard v., Der vorbehaltene Berøigrrøtgsberetcft der Staaten, in Abhandlungen aus dem Seminar für Völkerrecht und Diplomatie an der Universität Göttingen, Heft 10 (1934), pp. 38-46 Google Scholar.

39 See Manley 0. Hudson, “The New Arbitration Treaty with France,” this Journal, Vol. 22 (1928), p. 371.

40 Cong. Rec., Vol. 92, No. 153, Aug. 1, 1946, pp. 10763-10764; No. 154, Aug. 2,1946, pp. 10839-10840.

The danger that the reservation of domestic questiona may be interpreted so broadly as to encroach upon the Court’s jurisdiction is enhanced by omission of the phrase “questions which by international law fall exclusively within the jurisdiction,” contained in the original Morse Resolution (S. Res. 160) as introduced July 28, 1945 (Cong. Rec., July 28, 1945, p. 8304), and the substitution in S. Res. 196 of the phrase “ matters which are essentially within the domestic jurisdiction.” This change, made to bring the language of the Resolution into conformity with that of Art. 2(7) of the Charter, deprives the concept of domestic jurisdiction of all legal precision, through adoption of a vague and indefinite formula unknown to international law. On the origin and possible meaning of the term “essentially” as contained in the Charter, see the writer’s statement before the Subcommittee of the Committee on Foreign Relations, Hearings, pp. 80-84.

41 See note 13, above.

42 My Diary at the Peace Conference, Vol. 20, pp. 577-580.

43 Advisory Opinion No. 4, Publications of the Permanent Court of International Justice, Series B, No. 4, p. 24.

Le ‘fait international’ constitue . . . une notion contingente, dont le contenu est déterminé en grande partie par les idées régnantes, influencées elles-mêmes à cet égard par l’état des relations internationales. Entre le domaine de l’activité discrétionnaire de l’état et celui de son activité internationalement réglée aucun partage, n’est imposé par un principle immuable, aucune Kgne infranchissable n’est objectivement établie. Si bien que l’ordreinlernniionalest juridiquement maître de soumettre à sa réglementation des zones precédément abandonnés à la discrétion du droit interne. Maurice Bourquin, Règles générales du droit de la paix, in Recueil des Cours de l’Académie de Droit International, T. 35 (1931-1), p.149.

44 Borei, E., in Annuaire de l’Institut de Droit International (1931-1), p. 70 Google Scholar; Raestad, Arnold, La reconnaissance, la détermination et la signification en droit international du domaine laisse à ce dernier à la compétence exclusive de l’État, in Acta Scandinavica juris gentium, Vol. 3 (1932), pp. 111, 112Google Scholar.

45 On the requirement that the compromis under treaties of obligatory arbitration take the form of a special agreement subject to the advice and consent of the Senate, see Whitton, John B. and Brewer, John W., Problems Raised by the General Treaty of Inter-American Arbitration, this Journal, Vol. 25 (1931), pp. 463-468 Google Scholar; and Murdock, James O., Arbitration and Conciliation in Pan America, in same, Vol. 23 (1929), pp. 285-288 Google Scholar. The practice of the United States with respect to the submission of disputes to adjudication is summarized by Green H. Hackworth, then Legal Adviser of the Department of State, in a memorandum prepared at the request of Senator Vandenberg, July 23,1945. Cong. Rec., Vol. 91, No. 151, July 27, 1945, p. 8249.

46 Report, pp. 4,5. On the reciprocal character of jurisdiction under Art. 36(2), see Hudson, Manley O., The Permanent Court of International Justice, 1920-1942, New York, 1943, pp. 465-467 Google Scholar.

47 Cong. Rec., Vol. 92, No. 153, Aug. 1, 1946, p. 10770.

48 These remarks are Professor Lauterpaoht’s, and were expressed on the occasion of the acceptance of compulsory jurisdiction by Great Britain, with reservation of domestic questions. Their application to the United States Declaration represents an a fortiori case, for Great Britain, at least, did not challenge the competence of the Court itself to decide juris-dictional disputes arising out of its reservation. “The British Reservations to the Optional Clause,” in Economica, June, 1930, p. 159.

49 See note 13, above; and note the character of the reservations of various Latin American countries to the General Treaty of Inter-American Arbitration of 1929. Compare the remarks of M. Titulesco in rejecting a demand for judicial settlement in the dispute between Rumania and Hungary relating to the expropriation of property of the Hungarian optants. To arbitrate such a question, M. Titulesco said, would be to submit “not merely a problem but a veritable page of history. ... Is the question only a simple violation of our international obligations by an act of the Government, by a law having the character of a common law? No. If we have violated international law it is by our constitution, by the supreme law which to-day governs relations between the Rumanians; yet you are asking me, a representative of my Government ... to submit the constitution of Roumania to the arbitration of a third party.” League of Nations, Official Journal, 1923, No. 6, p. 607.

50 It should be recalled that a state cannot relieve itself from an international obligation by means of a reservation. The reservation of a unilaterial right of determination in matters alleged to fall within the domain of domestic jurisdiction cannot extend that domain beyond its limits as defined by international law. It cannot relieve the United States of responsibility for any action which it claims to fall within its jurisdiction but which actually violates the legal rights of another state. The reservation simply means that the United States may refuse to have recourse to settlement through a judgment of the International Court of Justice in any matter of domestic jurisdiction “as determined by the United States.” The same possibility of refusal is, of course, available, on the ground of reciprocity, to other states accepting the jurisdiction of the Court. Compare the remarks of Charles Evans Hughes on the legal nature of reservations, quoted, this Journal, Vol. 23 (1929), p. 289.

51 Senator Pepper vigorously attacked the validity of the Connally Amendment on the ground that it “flies first into the very teeth of the purpose and concept oř the Court, and in the second place, into violent conflict with subparagraph 6 of Article 36. . . .” Adoption of the Amendment, he said, would be “a vain act, because we cannot impair the express provision of the Charter [Statute]. . . . Once we have given authority for compulsory jurisdiction to attach, then the law as embodied in Article 36 of the Statute becomes effective, and we cannot by reservation in confliet with and in opposition to the Charter [Statute] authority limit the jurisdiction of this Court.” Cong. Rec., Vol. 92, No. 154, Aug. 2, 1946, p. 10837. Professor Lauterpacht has suggested that “Possibly it might be argued that sweeping and indefinite reservations might be regarded as contrary to the very purpose of the Optional Clause and as such invalidating its signature. As such, for instance, might be regarded a reservation offending against the fundamental principle of the Statute of the Court in regard to its right to determine its own jurisdiction “ : article cited p. 169. On the problem of the validity of reservations in accepting the compulsory jurisdiction of the Court, see the writer’s article on “Questions Resulting from the Connally Amendment” in American Bar Association Journal (Oct., 1946), pp. 660-662, 721.

52 For a brief discussion of the “forced compromis,” see Habicht, Max, Post-War Treaties for the Pacific Settlement of International Disputes, Cambridge, 1931, pp. 1043-1044 Google Scholar. An approach to this type of compromis was contained in the Knox-Taft treaties of 1911, Art. 3 of which provided that “in cases in which the parties disagree as to whether or not a difference is subject to arbitration under Art. I of this treaty, that question shall be submitted to the joint high commission of inquiry; and if all or all but one of the members of the commission agree and report that such difference is within the scope of Art. I, it shall be referred to arbitration in accordance with the terms of this treaty.” This article was stricken out by the Senate, which substituted a broad reservation of domestic questions (see note 10, above), and added the requirement that the special agreement for the submission of each case receive the advice and consent of the Senate.

53 See Wilson, Robert R., “Reservation Clause? in Agreements for Obligatory Arbitration,” this Journal, Vol. 23 (1929), pp. 68-93 Google Scholar; and “Clauses relating to Reference of Disputes in Obligatory Arbitration Treaties” in same, Vol. 25 (1931), pp. 469-489.

54 Text by courtesy of Department of State.

55 Baron Marschall von Bieberstein, German delegate to the Hague Conference of 1907, in proposing a plan for an “obligatory compromis as the complement of obligatory arbitration.” Proceedings of the Hague Peace Conferences: The Conference of 1907, New York, 1920, Vol. I, p. 378.