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Charter, took exception to a proposal for a convention on collective economic security that would set out judicial measures and procedures for maintaining "collective economic security for development." The following is an excerpt from his statement to the Council:

[W]ith regard to collective economic security ... we have agreed in the past... that a system of collective economic security should be established. We indicated, however, that it would be necessary to arrive at a mutually acceptable definition of the concept of collective economic security in order that such a system be effective in assisting development. . . . [W]e are prepared, and have stated so many times, to consider an economic security system to deal with the situation in which a country's development progress was adversely affected, regardless of the cause. We think the nature of the collective action in each case should be oriented to the conditions of the development problem which a petitioning country was experiencing, and for this reason we have always felt that factfinding should be an essential part of the collective economic security process.

But we do not consider economic security analogous to military security, and thus, a system constructed on such an analogy, in our opinion, is wrong. Unlike military policies and actions, economic policies are directed internally to improve a country's position compared to what it was before, not in comparison with another country. They are directed externally only by way of response to external conditions.

[W]e see the approach to collective economic security which has been taken in this body, as expressed specifically through the work on a convention on collective economic security, as one which would establish an essentially judicial procedure without an adequate basis in law and without protection for the legitimate rights of the accused. We believe it is open to serious abuse in that any state would be open to political harassment arising out of disputes with a neighboring state, no matter how minor the dispute might be. The process of determining culpability by a majority vote poses a serious threat to the sovereignty of states. This treaty approach has resulted in giving collective economic security a definition which we cannot accept. We have thus been forced to vote "no" on articles in the proposed protocol of amendment to the OAS Charter in which this term has been introduced.

OAS Doc. OEA/Ser. G, CP/ACTA 230/76, Mar. 10, 1976, pp. 37-38.

The International Court of Justice

A study entitled, “Widening Access to the International Court of Justice," prepared by Julia Willis, Special Assistant in International Law, was transmitted by the Legal Adviser of the Department of State to the President of the Senate, the Chairman of the Senate Foreign Relations Committee, and Senators Alan Cranston and

Robert Taft, Jr., on November 24, 1976. The study was undertaken pursuant to Senate Resolution 78 of May 9, 1974 (Cranston-Taft resolution), which expressed the sense of the Senate that the President should direct the Secretary of State to undertake a study examining and appraising the various ways of granting direct and indirect access to the International Court of Justice (ICJ) and other international tribunals to individuals, corporations, nongovernmental organizations, intergovernmental organizations, regional organizations, and other natural or legal persons, in cases concerning questions of international law arising within the scope of activities directly pursued by such natural and legal persons. See the 1974 Digest, pp. 668-670.

The Legal Adviser's Office study reaffirmed the primary importance of revising U.S. adherence to the compulsory jurisdiction of the Court so as to omit the self-judging "reservation" or "Connally amendment" from it. See TIAS 1598; 61 Stat. 1218; 4 Bevans 140.

It concluded that the most desirable of several steps which the United States could take would be officially to announce in an appropriate forum that it favors, in principle, amendment of the Statute of the International Court of Justice and the U.N. Charter to incorporate an advisory "preliminary opinion" recourse from national appellate courts to the International Court of Justice on issues of international law. The other steps that the Department favors are amending the Statute to accord the United Nations the right to appear before the Court in contentious proceedings, whether against a state or another international organization, and enlarging the list of public international organizations now authorized to request advisory opinions of the Court. In view, however, of larger problems currently inherent in amendment of the Statute and the Charter, the Department would not at this time press such amendments, but would raise their desirability with other governments for their consideration.

The Department's conclusions on the various ways of granting direct and indirect access to the ICJ to individuals, corporations, and organizations are set forth as follows:

The "Preliminary Opinion" Procedure

The Department of State believes that the original concept of the purpose of the International Court of Justice, i.e., to adjudicate disputes between states in accordance with international law, remains valid and highly relevant to the contemporary needs of the world community. The present era, however, in contrast to that of the Court's founding some fifty years ago, has become transnational in multiple ways. Not only much of the world's commercial and business activity, but political, economic, scientific, environmental, educational, cultural, humanitarian and other forms of activity, have become increasingly international and

intermeshed. Accordingly, a distinctly modern need for uniformity in the law has emerged. There would be great advantage both to the progress of human affairs and the development of international law if disputes arising out of this burgeoning international interchange were submitted to international adjudication. The function of the World Court as an adjudicator of disputes between states and the proposed function of the Court in meeting this modern requirement for promoting the application and uniformity of law to transnational activities would be entirely compatible. At present, however, this dual role is not possible within the jurisdictional limitations of the Court.

The Department of State accordingly favors expanding the jurisdictional capacity of the Court to meet this modern demand by introducing an element of flexibility through a procedure which may be denominated as the "preliminary opinion procedure."

Under this procedure, appellate national courts would be able to refer any question of international law to the International Court of Justice for its advisory opinion where, in the judgment of the national court, such reference is desirable, before rendering of its own final decision. Through this procedure, individuals, corporations, and nongovernmental organizations could have indirect access to the World Court. The essential character of the World Court as an interstate adjudicatory organ would be preserved but its function as an international adjudicator of disputes would be enhanced and modernized. It would serve in this fashion as an instrument for promoting the uniformity and development of international law in its application to the increasingly significant spheres of transnational activities.

Appropriate implementation of the "preliminary opinion procedure" would, in the State Department's view, require amending the Statute of the International Court of Justice (1) to allow national appellate courts to request an advisory opinion on a point of international law; and (2) to permit individuals or other parties that are neither states nor international organizations to participate in the proceedings before the World Court when it deals with such requests.

Amendment of the Statute requires a vote of two-thirds of the members of the General Assembly and ratification by two-thirds of the members of the United Nations, including all the permanent members of the Security Council. (Article 69 of the Statute and by reference, article 108 of the United Nations Charter.) It is appreciated that such an amendment of the Statute would be difficult to achieve; indeed, at this juncture in world affairs, it is not to be supposed that two of the permanent members of the Security Council (the U.S.S.R. and China) would approve it, even if the requisite majority could otherwise be secured. Moreover, the United States itself, in current consideration of the revision of the Charter of the United Nations, has made clear that it does not now favor Charter amendment. Accordingly, U.S. support for the preliminary opinion procedure is support in principle, i.e., support for amending the Statute in this fashion at some later, more propitious time. Nevertheless, support in principle of such a proposal represents a sound and forward-looking approach to the problem of enhancing the role of the Court, which may tend to

attract and develop increased international support for the Court. The proposal would not envisage such a radical departure from either the character or the function of the Court as to run the risk of alienating the body of world opinion that endorses the Court's traditional character and role; yet it is likely to appeal to that segment of opinion advocating the much more radical step of granting direct access to individuals for prosecution of their claims against their own states. Such a proposal would, if effected, afford an individual authoritative adjudication of an issue of international law affecting his rights that might otherwise be withheld from him, e.g., because of inability or unwillingness of a national court to adjudicate the issue or a decision by his government not to espouse his claim in diplomatic channels or a government's refusal to go to an international tribunal even in a case where an effective jurisdictional clause exists. It should enhance the attachment of legal and corporate establishments to international legal procedures by affording entities in addition to states a measure of access to the highest international court.

Contentious Recourse of the United Nations

A second jurisdictional step supported by the Department of State for widening access to the World Court is to accord the United Nations the right to appear before the Court as a party in contentious proceedings, whether against a state or another international organization. In the case of Reparations Suffered in the Service of the United Nations (ICJ Reports 1949), the United Nations capacity to bring an international claim against a government was sustained. It would therefore be a logical step to open the Court's contentious jurisdiction to the United Nations. This proposal would also require amendment of the Court's Statute.

Enabling Additional International Organizations to Seek Advisory Opinions

The Department of State also favors enlarging the list of public international organizations now authorized to request advisory opinions from the International Court of Justice. This probably would require amendment of the Statute.

The Department of State, in the light of the analysis contained in the appended study, does not consider the granting of direct access to the World Court to individuals or corporate entities either desirable or feasible at this time.

Access to International Tribunals Other than the International Court of Justice

It should be noted that individuals and corporations currently enjoy a measure of access to other international tribunals. Among them are the International Center for Settlement of Investment Disputes, ad hoc arbitral tribunals constituted pursuant to numerous contracts between governments and foreign companies, the European Court of Human Rights and the Court of Justice of the European Economic Community.

Dept. of State File No. P77 0014-212. The Dept. of State study contains four additional parts: I: Existing Recourse to International Adjudication; II: Principal

Historical Precedents; III: Proposals for Widening Access to the International Court of Justice; IV: Summary Analysis. The text of these four parts follows:

Part I: Existing Recourse to International Adjudication

Article 34 (1) of the Statute of the International Court of Justice provides: "Only States may be parties in cases before the Court."

This provision precludes direct access to the Court in contentious proceedings by individuals or any legal entity other than a state. Indirect access is possible only if a state espouses an individual's claim or that of a legal entity other than a state.

Article 65 (1) of the Court's Statute provides:

The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.

Article 96 of the United Nations Charter provides:

1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

Individuals, and legal entities other than states or specialized agencies of the United Nations, are considered by these provisions to be precluded from direct access to the International Court of Justice through the route of an advisory opinion. These advisory opinion provisions, however, do afford direct access to the Court to intergovernmental organizations, at any rate for United Nations specialized agencies. In at least one case. individuals achieved indirect access to the Court through a specialized agency authorized to request advisory opinions.

Twelve specialized agencies have been authorized by the General Assembly to request advisory opinions, and one intergovernmental organization which is not a specialized agency has been so authorized.

The International Atomic Energy Agency, an intergovernmental agency that is not strictly speaking-a specialized agency of the United Nations, has been authorized to request advisory opinions from the ICJ. This authorization does not appear to be in precise conformity with article 96(2) quoted above, which limits such authorization to organs of the United Nations and specialized agencies. However, article 65(1) quoted above, in providing that, "Whatever body may be authorized by or in accordance with the Charter of the United Nations" to make a request for an advisory opinion of the Court, may possibly be read more broadly. Since the General Assembly has so authorized the International Atomic Energy Agency, there is now arguable precedent for such authorization to be extended to other intergovernmental organizations, thus enlarging access to the Court for functional and regional organizations.

In Resolution 957(X) of November 8, 1955, the General Assembly established a subsidiary organ-the Committee on Applications for Review of Administrative Tribunal Judgments-for the purpose of requesting advisory opinions in certain defined circumstances and with defined consequences. In these circumstances, the International Court of Justice acts as a court of appeal from the judgments of the Administrative Tribunal of the United Nations, which decides disputes between individual staff members and the United Nations. This serves as an example of flexibility in the jurisdiction of the Court to handle potential cases involving individuals.

In the United Nations Administrative Tribunal Case (1954 Reports of the International Court of Justice), a strict construction of the Court's rules of procedure prevailed. Since the issue, the finality of awards of the United Nations Administrative Tribunal, affected the legal position of individuals who were judgment creditors under

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