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Nicaragua v. United States: Constitutionality of U.S. Modification of ICJ Jurisdiction

Published online by Cambridge University Press:  27 February 2017

Michael J. Glennon
Michael J. Glennon*
Affiliation:
University of Cincinnati College of Law; Senate Foreign Relations Committe
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American Journal of International Law , Volume 79 , Issue 3 , July 1985 , pp. 682 - 689
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Copyright © American Society of International Law 1985

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References

1 61 Stat. 1218(1947).

2 The 1984 notification provided in relevant part that the 1946 Declaration “shall not apply to disputes with any Central American State or arising out of or related to events in Central America,” and that the notification would “take effect immediately and shall remain in force for two years.” Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 398 (Judgment of Nov. 26) [hereinafter cited as Nicaragua].

3 Senator Wayne Morse of Oregon introduced S. Res. 160 on July 28, 1945. 91 Cong. Rec. 8,164 (1945). The purpose of the resolution, according to Senator Morse, was to have the President, “upon the recommendation of the Senate,” transmit to the United Nations a declaration representing U.S. acceptance of the compulsory jurisdiction of the International Court of Justice established under the UN Charter. Id. at 11,088. Upon revision, the resolution became S. Res. 196. Id. at 11,097.

The Senate discussed how procedurally the United States should accept ICJ compulsory jurisdiction. Senator Morse suggested that the American delegation to the San Francisco Conference

felt that it [the compulsory jurisdiction question] should not become involved in consideration of the Charter, but that the Charter should be considered independently, and the Senate of the United States should at a later date decide whether it wished to adopt the policy of having this country accept compulsory jurisdiction of the Court.

Id. at 8,162. Other senators concluded that the remarks of Mr. Hackworth, Legal Adviser to the State Department, “foreclose[d] the possibility . . . that adherence to the Court could be ordered by a Presidential executive order without consultation with Congress or the Senate.” Id. at 8,163 (remarks of Sen. Arthur Vandenberg).

The resolution was referred to the Senate Foreign Relations Committee. In its report, the committee observed that “both the President and the Secretary of State have indicated that, in their opinion, either . . . a two-thirds vote of the Senate or . . . a simple majority vote of the two Houses would furnish a satisfactory legal basis for acceptance by the United States of the compulsory jurisdiction clause.” S. Rep. No. 1835, 79th Cong., 2d Sess. (1946), reprinted in 92 Cong. Rec. 10,706, 10,708 (1946). The committee therefore decided that “[i]nasmuch 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.” Id. at 10,709. However, the committee continued, “[w]hile the declaration can hardly be considered a treaty in the strict sense of that term, the nature of the obligations assumed by the contracting parties are such that no action less solemn or less formal than that required for treaties should be contemplated.” Id. Finally, the committee concluded that “the proposed declaration . . . is rather a unilateral declaration having the force and effect of a treaty as between the United States and each of the other states which accept the same obligations.” Id.

Understandably, the remainder of the Senate was somewhat confused as to how it should consider the resolution embodying the declaration. Senator Connally, then Chairman of the Committee on Foreign Relations, made a point of order when the resolution was considered on the floor of the Senate on July 31, 1946, arguing that “this resolution should properly go to the Executive Calendar instead of the Legislative Calendar, because it expresses the concurrence and advice of the Senate to the President; so it has no place on the Legislative Calendar.” Id. at 10,553. The Chair, however, ruled that “[t]he resolution was reported as a legislative proposition. The Chair is of the opinion it is in order.” After some debate on the issue, the Chair declared that it was “of the opinion that the two-thirds vote required [by the resolution did] not make necessary the consideration of the resolution in executive session.” Id. at 10,556.

The following day, Senator Thomas of Utah asked unanimous consent “that the Senate now proceed, in executive session, to the consideration of Senate Resolution 196,” to which no objection was made. Id. at 10,613 (emphasis added). (Rule 37 of the Standing Rules of the Senate provides for the consideration of treaties in executive session.) Senator Thomas then applauded this form of consideration of the resolution, reasoning that although the declaration accepting compulsory jurisdiction could not “be considered a treaty in the strict sense of the term,” it would “have the binding force and effect of a treaty between the United States and the other states which have accepted the compulsory-jurisdiction clause,” its “subject matter . . . has always been considered appropriate for senatorial advice and consent,” and “the use of the more formal treaty procedure would render impotent any possible objection to the declaration which might be raised on constitutional grounds.” Id. at 10,617.

4 S. Res. 196, 79th Cong., 2d Sess. (1946).

5 Id. The most well-known reservation is the so-called Connally reservation, which excludes from ICJ jurisdiction “disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America.” 61 Stat. 1218 (1947).

6 61 Stat. 1218 (1947). The legislative history of S. Res. 196 makes clear that the termination proviso was intended to preclude precisely the sort of action represented by the 1984 notification. “The provision for 6 months’ notice of termination after the 5-year period,” the Senate Foreign Relations Committee said in its report, “has the effect of a renunciation of any intention to withdraw our obligation in the face of a threatened legal proceeding.” S. Rep. No. 1835, 79th Cong., 2d Sess. (1946).

7 1968-1969 ICJ Y.B. 71-72. The Declaration was enclosed in a letter from Acting Secretary of State Acheson to the Secretary-General of the United Nations, UN Doc. US/ICJ/5 (Aug. 26, 1946), and is found at 1 UNTS 9.

8 61 Stat. 1218(1947).

9 Memorandum, “Hannevig Case,” July 18, 1958, Dep’t of State File No. 211.5741 (Hannevig, ChristofTer/7-1858), reprinted in 14 Whiteman, M., Digest of International Law 248-51 (1970)Google Scholar.

10 Id. at 249.

11 Those referred to are art. I, §8 (“Congress . . . shall have the power . . . to pay the debts” of the United States); art. I, §9, cl. 7 (“[N]o money shall be drawn from the Treasury, but in consequence of appropriations made by law”); and art. IV, §3, cl. 2 (“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States”).

12 No officer or employee of the United States shall make or authorize an obligation under any appropriation or fund in excess of the amount available therein; nor shall any such officer or employee involve the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose, unless such contract or obligation is authorized by law.

31 U.S.C. §665(a) (1953), amended by 31 U.S.C. §1341 (1982).

13 31 U.S.C. §1341 (1982).

14 “The power of Congress to dispose of any kind of property belonging to the United States ‘is vested in Congress without limitation.’ “ Alabama v. Texas, 347 U.S. 272, 273 (1953) (quoting United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840)).

15 Nuclear Tests (Austl. v. Fr.), 1974 ICJ Rep. 253, 267, para. 43 (Judgment of Dec. 20).

16 Nicaragua, 1984 ICJ Rep. at 419.

17 Id. at 417.

18 Id. at 419. As to the question of reciprocity, the Court held that Nicaragua accepted the same obligation since the “notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction.” Id.

19 444 U.S. 996(1979).

20 Id. at 1002 (Rehnquist, J., concurring). Three Justices, Stewart, Stevens, and Chief Justice Burger, joined the concurring opinion of Justice Rehnquist, who viewed the issue as a nonjusticiable political question. Id. Justice Powell concurred for “prudential” reasons: the political branches had not reached a “constitutional impasse,” he argued, because Congress had taken no official action. The dispute was between the President and a few members of Congress. Id. at 997 (Powell, J., concurring).

21 Id. at 1007 (Brennan, J., dissenting).

22 Id.

23 See supra text at notes 9-15.

24 343 U.S. 579, 631-32 (1952). For the proposition that certain norms of customary international law are binding on the Executive domestically as part of federal common law, see Glennon, , Raising the Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U.L. Rev. (forthcoming Nov. 1985)Google Scholar.

25 22 U.S.C. §§3301-3316 (1982).

26 S. Rep. No. 7, 96th Cong., 1st Sess. 18 (1979).

27 343 U.S. at 637 (Jackson, J., concurring). Justice Jackson’s concurring opinion, the committee said,

seems directly applicable. He suggested three categories for determining which branch prevails in the event of conflicting assertions of power:

(1) When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all the Congress can delegate. . . .

(2) When the President acts in the absence of either a congressional grant or denial of authority, he can rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .

(3) When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. . . .

S. Rep. No. 7, supra note 26, at 18-19 (quoting 343 U.S. at 635-37 (Jackson, J., concurring)).

28 S. Rep. No. 7, supra note 26, at 19. See also S. Rep. No. 119, 96th Cong., 2d Sess. (1979), reprinted in 2 Glennon, M. & Franck, T., United States Foreign Relations Law 411 (1981)Google Scholar.

29 Treaty Termination: Hearings Before the Senate Coram, on Foreign Relations, 96th Cong., 1st Sess. 214 (1979).

30 Id.

31 Id.

32 Id.

33 Id. at 220-21.

34 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, in The Law of The Sea: United Nations Convention on the Law of the Sea (UN Pub. Sales No. E.83.V.5).

35 Statement by the President, United Nations Conference on the Law of the Sea, 18 Weekly Comp. Pres. Doc. 95 (Jan. 29, 1982).

36 Senate Comm. On Foreign Relations, Report on Executive N, S. Rep. No. 12, 95th Cong., 1st Sess. 11 (1978).