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United States Attitude Toward Domestic Jurisdiction in the United Nations
Published online by Cambridge University Press: 22 May 2009
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The United States has played a dominant role in the establishment of international organizations since World War I, especially with respect to the League of Nations and the UN. However, the United States is also largely responsible for some vital limitations on the functioning of these organizations. One, perhaps the most important, is the subject of this study.
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1 The provision read as follows: “If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement”.
2 See Miller, David Hunter, The Drafting of the Covenant, New York, G. P. Putnam's Sons, 1928, Vol. I, p. 276 ff.Google Scholar; and Finch, G. A., “The Treaty of Peace with Germany in the United States Senate,” American Journal of International Law, 14 (1920), p. 155–206CrossRefGoogle Scholar.
3 For the domestic jurisdiction reservation, see U. S. Congressional Record, 66th Cong., 2d Sess., 03 19, 1920 (Vol. 59, Pt.5), p. 4599Google Scholar.
4 United States, Department of State, Dumbarton Oaks Documents on International Organization, Washington, Department of State Publication 2192, Conference Series 56, 1944Google Scholar.
5 Postwar Foreign Policy Preparation, 1939–1945, Washington, Department of State Publication 3580, General Foreign Policy Series 15, 1950, p. 443–445Google Scholar.
6 Documents of the United Nations Conference on International Organization, San Francisco, 1945 (hereafter cited as UNCIO Documents), New York and London, United Nations Information Organizations, 1945–1946 (Vol. 3), P. 623Google Scholar.
7 For a summary record of his defense, see UNCIO Documents (Vol. 6), p. 507–509.
8 In the words of the United States official report on the San Francisco Conference, Charter of the United Nations: Report to the President of the Remits of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State, June 26, 1945, Washington, Department of State Publication 2349, Conference Series 71, 1945, p. 44Google Scholar(hereafter cited as Report to the President): “To extend this principle [of domestic jurisdiction] to the activities of the Organization as a whole… seemed desirable because of the amplification of the powers and authority given to the Assembly and, particularly, the Economic and Social Council. Without this general limitation, which now flows from the statement of the principle in Chapter I, it might have been supposed that the Economic and Social Council could interfere directly in the domestic economy, social structure or cultural or educational arrangements of the member states. Such a possibility is now excluded. The general limitation also qualifies the power of the General Assembly under Art. Io with respect to the making of recommendations to the Members of the Organization”.
9 Quoted from unpublished Verbatim Minutes of Committee I/1 of the San Francisco Conference available in the UN Archives, New York.
10 One possible reason for this comparative lack of interest is that the Charter provision of Article 2(7) complied with all the terms of the earlier reservation in fully protecting the domestic jurisdiction of the United States. That it actually does so, is a competent view. See Gross, Leo, “The Charter of the United Nations and the Lodge Reservations,” American Journal of International Law, 41 (1947), p. 538–544CrossRefGoogle Scholar.
11 The Charter of the United Nations, U. S. Senate, 79th Congress, 1st Session, Hearings before the Committee on Foreign Relations, July 10, 1945, p. 309–312Google Scholar.
12 See UNCIO Documents (Vol. 10), p. 271–272.
13 See U. S. Senate, 83d Congress, ad Session, Document No. 87, Review of the United Nations Charter: A Collection of Documents, 1954, p. 64Google Scholar.
14 The Charter of the United Nations, U. S. Senate, op. cit., p. 641Google Scholar.
15 Report to the President, p. 18–19.
16 See p. 20–21 above.
17 In the Security Council discussions, the United States representative stressed the twin objectives of his government in respect to the question: the elimination of the Franco regime and the restoration of a democratic regime without resumption of civil war. Security Council Official Records (1st year, 1st series), No. 2, p. 178. On a later occasion, he categorically asserted that “considering all the aspects of the Spanish question”, the Security Council was not debarred by reason of Article 2(7) from taking the action proposed in a revised Australian draft resolution (see ibid., p. 326) which, inter alia, recommended to the General Assembly that unless the Franco regime were withdrawn, the Assembly should pass a resolution recommending termination of diplomatic relations with the regime by Members of the UN (ibid., p. 365). However, while voting on the resolution as a whole, he abstained from voting on the recommendation concerning the threat of further action by the Security Council. On the other hand, in a General Assembly draft resolution of December 2, 1946 (Document A/C.1/100) which failed to secure approval, the United States delegation proposed that the Spanish people be invited to establish the eligibility of Spain for admission to the UN and that, as a first step, General Franco should surrender the powers of government to a broadly representative democratic provisional regime committed to hold free elections. Four years later (October 1950), however, the United States reversed its position on the question, and in defense the United States representative then explained that his government had earlier doubted the wisdom and efficacy of the December 1946 resolution and had therefore abstained from voting on it in the First Committee, but had supported it at the plenary meeting in the interests of unanimity. See General Assembly Official Records (5th session). Ad Hoc Political Committee, p. 184.
18 Security Council Official Records (3d year). No. 56, p. 26.
19 See “Report of the Committee on the Admission of New Members,” Security Council Official Records (1st year, 2d Series), Supplement No. 4, Annex 7, p. 66–07 and ibid., No. 5, p. 91 (re Mongolian People's Republic); ibid., p. 58 and 64 (re Albania); ibid. (4th year), No. 12, p. 12–16 (re North Korea); ibid. (2d year), No. 81, p. 2119 (re Hungary), p. 2131 (re Romania), and p. 2132 (re Bulgaria).
20 For the initial position, see Security Council Official Records (2d year). No. 82, p. 2177–2178. The United States also supported an unsuccessful Belgian proposal (Document S/517) to have the issue of jurisdiction referred to the International Court of Justice for its advisory opinion. For the later altered position, see Security Council Official Records (4th year), No. 6, p. 7–8.
21 For its position at the sixth session, see General Assembly Official Records (6th session), General Committee, p. 4–5, and ibid., Plenary Meetings, p. 258–259. At the seventh session, the United States, as in the allied Tunisian case, did not oppose the Assembly's discussion of the question.
22 In the Security Council discussion in April 1952 [Security Council Official Records (7th year), 557th meeting, p. 5–6)—but not expressly on the ground of French domestic jurisdiction. After having also opposed a proposal in June 1952 to convene a special session of the Assembly to consider the item, the United States, at the seventh regular session of the Assembly held later in the same year, supported the Assembly's competence to deal with the item.
23 See General Assembly Official Records (10th session), General Committee, p. 12, and ibid., Plenary Meetings, p. 187. At the eleventh session of the Assembly, the United States completely reversed its position and not only did not object to discussion of the question but also supporte d the unanimous recommendation of the Assembly resolution of February 15, 1956 [1012(XI)]. See also the statement of the United States representative, General Assembly Official Records (11th session), First Committee, p. 135–136.
24 Ibid. (10th session), General Committee, p. 4.
26 See footnote 62 below.
27 See General Assembly Official Records (2d session), Fourth Committee, p. 43 and 75.
28 General Assembly Official Records (7th session), Ad Hoc Political Committee, p. 48. Cf. also ibid. (3d session, Part II), First Committee, p. 294 (where he stated categorically that “the many references in the Charter to th e observance of human rights and fundamental freedoms brought the question fully within the competence of the General Assembly”) and ibid. (10th session), Ad Hoc Political Committee, p. 159. See also footnote 38 below.
29 General Assembly Official Records (7th session), Ad Hoc Political Committee, p. 90–91. See also ibid. (8th session), Ad Hoc Political Committee, p. 192.
30 Ibid. (3d session, Part II), General Committee, P. 34–35.
31 Ibid., Ad Hoc Political Committee, p. 89.
33 See, however, p. 26–27 and 34 below.
34 See p. 20–21 above.
35 See, for instance, Goodrich, Leland M. and Hambro, Edvard, Charter of the United Nations: Commentary and Documents, rev. ed., Boston, World Peace Foundation, 1949, p. 120Google Scholar.
36 Oppenbeim's International Law, Vol. I, 8th ed., by Lauterpacht, H., 1955, p. 415–416 and 305Google Scholar.
37 Lauterpacht, H., International Law and Human Rights, 1950, p. 169–170Google Scholar.
38 General Assembly Official Records (3d session, Part II), First Committee, p. 294. But he also added that “no organ of the United Nations was empowered to compel states to adopt corrective measures in the absence of a threat to, or breach of, international peace or in the absence of a treaty providing specifically for such action”, Loc. cit.
40 See p. 23 above. In the discussion of the Spanish question, the United States representative maintained that the Security Council was not precluded (under the terms of Article 2(7) of the Charter) from adopting the proposal recommending severance of diplomatic relations with Spain. Security Council Official Records (1st year, 1st series), No. 2, p. 325, 328, and 365.
41 See p. 34 below.
42 See I.C.J. Pleadings, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinions of March 30th and July 18th, 1950, p. 276–282.
43 UNCIO Documents (Vol. 11), p. 711–714. See also the statement of the U. S. Secretary of State in that connection (as quoted by the Soviet representative) in Security Council Official Records (2d year). No. 22. p. 458.
44 See Goodrich, Leland M., “Expanding Role of the General Assembly,” International Conciliation, 05 1951 (No. 471). P. 244–245Google Scholar.
45 “… Whether an item should be placed on the agenda for discussion or not, there must be a consideration of the character of the question in order to learn whether the competence of the Security Council reaches the item.” Security Council Official Rrcords (3d year), Nos. 36–51, p. 99. See also ibid., No. 56, p. 26.
46 Ibid. (6th year), 559th meeting, p. 6.
47 Quoted from unpublished Verbatim Minutes.
48 Report to tie President, op. cit., p. 45.
49 It has been conjectured by Preuss, Lawrence (Recueil des Cours de L'Academic de Droit International, 74 [1949], I, p. 598Google Scholar, footnote 2) that the substitution of “essentially” for “solely” was made at the instance of the American delegation and that the idea was borrowed from Hyde's, C. C. observation (International Law, Chiefly as Interpreted and Applied by the United Slates, Vol. I, 2d rev. ed., 1951, p. 209Google Scholar) that the treatment of one's nationals is normally of “an essentially domestic character”.
50 Report to the President, op. cit., p. 44–45.
51 UNCIO Documents (Vol. 6), p. 511.
52 General Assembly Official Records (3d session, Part II), First Committee, p. 294Google Scholar.
53 Ibid., General Committee, p. 34. In the Ad Hoc Political Committee of the same session, the U. S. representative said that though the rights of an individual in relation to the state were a matter to be determined by the concerned state in good faith, “the sovereignty of the state did not mean the tyranny of the state”, p. 90.
54 UNCIO Documents (Vol. 6), p. 509.
55 Kelsen, Hans, Law of the United Nations, 1950, p. 783–784Google Scholar; Eagleton, Clyde, “The United Nations: Aims and Structure,” Yah Law Journal, 55 (1945–1946), p. 979Google Scholar; and Kelsen, Hans, “Limitations on Functions of the United Nations,” Yale Law Journal, 55 (1945–1946), p. 999Google Scholar.
56 Lauterpacht, Hersch, International Law and Human Rights, 1950, p. 181Google Scholar; and Ross, Alf, Constitution of the United Nations, 1951, p. 130Google Scholar.
57 I.C.J. yearbook, 1955–56, p. 199. Italics added.
58 According to one authority, this U. S. reservation was simply prompted by a desire to safeguard the vital interest of the United States. Wilcox, Francis O., “The United States Accepts Compulsory Jurisdiction,” American Journal of International Law, 40 (1946), p. 713CrossRefGoogle Scholar. For a contrary view, see Preuss, Lawrence, “The International Court of Justice, the Senate and Matters of Domestic Jurisdiction,” American Journal of International Law, 40 (1946), p. 720–736CrossRefGoogle Scholar.
59 Judge Hersch Lauterpacht has observed that reservations of the Unite d States type in declarations ostensibly accepting the compulsory jurisdiction of the Court would reduce compulsory jurisdiction “to the vanishing point of legal obligation”. Oppenheim's International Law, 7th ed. (1952), Vol. II, p. 62Google Scholar. See also his Separate Opinion in Case of Certain Norwegian Loans, Judgment of July 6th, 1957: I.C.J. Reports 1957, p. 9, at p. 34.
60 Security Council Official Records (3d year), No. 56, p. 32.
61 General Assembly Official Records (1st session, Part II), General Committee, p. 71Google Scholar. But the United States also supported (somewhat inconsistently) South Africa's demand for reference of the issue of competence to th e advisory opinion of the International Court of Justice (ibid., Joint Committee of the First and Sixth Committees, p. 41–42 and Plenary Meetings, p. 1010–1014) and indeed itself put forward, jointly with the United Kingdom and Sweden, a draft proposal to that effect (Document A/C.1 & 6/20). But at the second session of the Assembly, the United States went back on its support to that procedure. See General Assembly Official Records (2d session). First Committee, p. 448.
In regard to the Indonesian question, the United States supported a proposal to refer the issue of jurisdiction for the advisory opinion of the Court, while at the same time asserting the competence of the Security Council to call for a cease-fire. Security Council Official Records (2d year). No. 68, p. 1657–1658.
In the case of one other question (observance of human rights in Bulgaria, Hungary and Romania), the United States upheld the jurisdiction of the General Assembly to ask the Court to give an advisory opinion on certain issues posed by the Assembly. General Assembly Official Records (4th session), Ad Hoc Political Committee, p. 62. See also citations at footnote 53 above.
62 General Assembly Official Records (7th session), Fourth Committee, p. 165–6. Presumably as a palliative, it was also stated that the United States stand did not mean that the General Assembly had no function to perform with respect to the matter. It could, it was said, lay down general principles and definition of terms (like “non-self-governing territories”) to guide Members in deciding for themselves in specific cases as to whether or not the territories had attained self-governing status. Cf. also ibid. (8th session), Fourth Committee, p. 67 and 89–90. In fairness, it ought to be observed that the United States had its decision to stop supplying information on Puerto Rico under Article 73(e) of the Charter (on the ground that the territory was no longer non-self-governing) confirmed by the General Assembly. General Assembly Resolution 748 (VIII) of November 27, 1955, refers.
63 See lnterkandel Case (interim measures of proteclion), Order of October 24th, 1957, I.C.J. Reports 1957, p. 105.
64 In its judgment of July 6, 1957, in a similar case, viz., the Norwegian Loans Case, the Court ruled that it had no jurisdiction to adjudicate upon the dispute between France and Norway because of the reservation in the French declaration of March 1, 1949, accepting the compulsory jurisdiction of the Court (which, because of the condition of reciprocity, Norway was entitled to invoke in its favor). The French reservation, which is very similar to that of the United States, reads: “This declaration does not apply to differences relating to matters which are essentially within the national juridiction as understood by the government of the French Republic”. Italics added.
65 For a discussion of these, see the writer's monograph, United Nations and Domestic Jurisdiction, 1958, p. 128–158.
66 P. 43–44.
67 UNCIO Documents (Vol. 6), p. 487.
68 Security Council Official Records (2d year), No. 68, p. 1657. See also ibid. (4th year). No. 6, p. 7.
70 Report to the President, op. cit., p. 45.
72 Kelsen, Hans, Law of the United Nations, p. 779–783 and 789–790Google Scholar.
72 E.g., Hans Kelsen, sec ibid., p. 773.
73 At the San Francisco Conference, Mr. Dulles stated that because of the wide jurisdiction of the proposed organization, they were faced with a “totally different” problem “of what will be the basic relationship of this new organization to the Member states. Is it going to be an organization which deals essentially with the governments of Member states, and through international relations? Or is it going to be an organization which is going to penetrate directly into the domestic life and the social economy of each one of the Member states?” He asserted that it was agreed that the proposed organization would be of the former type. [Quoted from unpublished Verbatim Minutes of the 17th meeting of Committee I/1 of the San Francisco Conference.] A little later, however, he added that the domestic jurisdiction proviso simply “says to the world organization: ‘Conduct business in effect with governments but do not yourselves directly intervene in the domestic life of a state’”. Ibid. For the observations of the Report to the President on this issue, see footnote 8 above. These observations seem, however, to be contradicted, by implication, in a subsequent section of the Report to the President (p. 111) both in regard to the powers of ECOSOC and (in view of Article 60) the General Assembly.
74 See above, p. 21–22.
75 For an extended discussion of the issue, see the writer's monograph, United Nations and Domestic Jurisdiction, p. 135–138.
76 General Assembly Official Records (3d session, Part II), Ad Hoc Political Committee, p. 20–21 and 89.
77 See p. 26 above.
78 See also, and especially, General Assembly Official Records (3d session, Part I), Sixth Committee, p. 738.
79 See Document E/AC.6/SR.16, p. 4–6 and Economic and Social Council Official Records (3d year), 6th Series, p. 403–404.
80 Indeed, this was the justification given by the United States Secretary of State while reporting to the President on the results of the San Francisco Conference deliberations. See Report to the President, op. cit., p. 18–19.
81 Eagleton, Clyde, op. cit., p. 974Google Scholar.
82 Ibid., p. 996.
83 To some extent, this criticism is equally applicable ot questions concerning the observance of human rights and fundamental freedoms.
84 See Briggs, Herbert, “Towards the Rule of Law,” American Journal of International Law, 51 (1957), p. 529CrossRefGoogle Scholar.