to the 1971 questionnaire circulated by the Secretary-General pursuant to General Assembly Resolutions 2723 (XXV), Dec. 15, 1970, Report of the Secretary-General, A/8382, Sept. 15, 1971, pp. 70-77, ibid., Add. 1, p. 6. See Comments in 1971 Sixth Committee, A/C.6/SR./1279, pp. 6–7; ibid., SR/1283, p. 20.]

Some authorities propose amending article 34 of the Statute to accord public international organizations the right to appear before the Court as parties in contentious proceedings. Some of these advocates go so far as to recommend a revision in article 36 of the Statute making it possible for these intergovernmental organizations to accept the compulsory jurisdiction of the Court. [See Gross, "The International Court of Justice: Consideration of Requirements for Enhancing Its Role in the International Legal Order," 65 Am. J. Int'l. L. (1971), pp. 253, 306–307; and Fitzmaurice, "Enlargement of the Contentious Jurisdiction of the Court,” op. cit., pp. 479-480.1

Reluctance so far on the part of the twelve specialized agencies to request advisory opinions of the World Court may possibly, though not necessarily, indicate that a sufficient number of states would withhold their consent from such amendments. A conference of legal advisors of international organizations sponsored by the American Society of International Law found that the reasons for the relative disuse of this available recourse (used by only two specialized agencies out of the twelve so authorized), was concern on the part of these agencies that the Court, being outside the mainstream of the organization's activities, might reach decisions not fully sensitive to their internal requirements for effective operation. Another reason cited was a reluctance to force an authoritative, definite, and presumably enduring interpretation when compromise and flexibility would be more useful. Dr. Gross suggests that the use of assessors and of experts could go a long way toward providing the Court or one of its Chambers with the expertise that would enable the court to appreciate the particular sensitivities of any functional agency. He notes that the Court has authority to use assessors and experts pursuant to article 68 of its Statute and corresponding article 82 of the Rules of Court. [Gross, "The International Court of Justice: Consideration of Requirements for Enhancing Its Role in the International Legal Order," 65 Am.J.Int'l. L. (1971), pp. 253, 278.]

Authorities favoring this extension of the World Court's jurisdiction have uniformly advised that any requests for advisory opinions from public international organizations be restricted to matters directly involving their own operations, and some suggest that they be restricted to matters involving the interpretation of their constitutions or terms of reference.

The Department of State sees advantage in two steps: affording the United Nations the right to be party in contentious cases before the Court; and enlarging the list of public international organizations authorized to request advisory opinions of the Court. In respect of the latter measure, insofar as additional organizations are not organs of the United Nations or specialized agencies, it believes (despite the IAEA precedent) that the legally sound approach is to amend the Statute to provide in article 96(2), that: “Other organs of the United Nations, the specialized agencies and other public international organizations, 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." It would thus be left to the General Assembly to decide which other public international organizations would be authorized to request advisory opinions. Alternatively, the International Court of Justice itself could be entrusted with the authority to empower public international organizations additional to the specialized agencies to seek advisory opinions.

Entitling the United Nations itself to be a party in contentious cases indisputably would require amendment of the Statute and the Charter. The precise terms of such an amendment would require careful consideration. One issue of such terms would be,

which organ or organs of the United Nations, by what majority, would be entitled to commit the organization to bringing a contentious case? While either the General Assembly or the Security Council may independently seek an advisory opinion, a contentious case could have such dispositive effect on the rights of the organization and its members that, in the view of the Department of State, a decision of the organization to involve itself in contentious proceedings should be taken only by concordant decisions of both the General Assembly and the Security Council. The Assembly's decision should be designated an important question, by amendment of article 18(2). The Security Council's decision should be agreed to be one that is substantive, i.e., one requiring the concurring votes of the permanent members of the Council. In seeking the advice and consent of the United States Senate to such amendments of the Statute and Charter, the Department would wish to request the Senate to include an understanding to this effect.

In addition, it is contemplated that the Court would have jurisdiction over the United Nations in contentious proceedings, as defendant as well as plaintiff, where the organization has submitted to it in advance of a particular dispute, or where it concludes a special agreement to go to the Court after a dispute has arisen. Such submissions or special agreements would, by the terms of the amendments supported by the Department of State, similarly require the concordant decisions of the General Assembly and Security Council by the special majorities specified above.

4. Nongovernmental Organizations

There does not at present exist a strong body of opinion favoring the granting of access to the World Court to nongovernmental organizations, although some eminent authorities favor select groups having significant international responsibilities, or a public or quasi-public character whose activities have a definite connection with affairs in the international sphere, being allowed recourse to the World Court for its advisory opinion. Such nongovernmental organizations include the International Air Transport Association, and the International Committee of the Red Cross, environmental organizations, international trust fund organizations, and nongovernmental international foundations and endowments. [See Jenks, The Prospects of International Adjudication, (1964), p. 163. See also Fitzmaurice, "Enlargement of the Contentious Jurisdiction of the Court," op. cit., p. 481, who lists such NGO's as International League for the Rights of Man, International Federation of Trade Unions, International Organization of Industrial Employers, Inter-Parliamentary Union, and who would exclude from such a list NGO's having an academic, professional, technical or scientific basis.] Dr. Sohn favors, as does the American Branch of the International Law Association, authorizing those twenty nongovernmental organizations now possessing consultative status in Category I with ECOSOC to request advisory opinions of the Court [supra., this Study]. Unless such an objective criterion as this is used, there will be the difficulty of establishing nondiscriminatory criteria; and yet the according of consultative status itself is not a satisfactory criterion. Even the rationale of carrying significant international responsibilities may be too vague—unless they are responsibilities conferred by multilateral treaty.

5. Regional Organizations

While there is not widespread advocacy for specifically granting regional organizations access to the World Court, the United States Government recommended this step in 1970 [See Secretary Rogers' speech before the American Society of International Law, Proceedings of Am. Soc. Int'l L. (1970), Vol. 64 of Am.J.Int'l L., pp. 285, 287.]

It may be noted in support of such a step that, since the United Nations, its specialized agencies, and at present one intergovernmental organization (IAEA) that does not, strictly speaking, qualify as a specialized agency, have been accorded such access, there is no legal reason to prevent regional organizations from like access,

provided, however that in the case of regional organizations, their requests for advisory opinions be restricted to any legal question arising within the scope of their activities. [See Schwebel and Sohn, Strengthening the International Court of Justice, op. cit., pp. 186, 189-190.]

Chapter 14

LEGAL REGULATION OF USE

OF FORCE

81 Resort to War and Armed Force

Military Alliances

On June 17, 1976, Ambassador Robert J. McCloskey, Assistant Secretary of State for Congressional Relations, wrote a letter to Congressman Harold T. Johnson, replying to an inquiry as to the difference between a military alliance and the relationship between the United States and its allies in World Wars I and II. Ambassador McCloskey's letter stated, in part:

Strictly speaking, the term "military alliance" signifies a certain type of legal relationship between two or more countries. This legal relationship is contractual in nature and is generally embodied in a treaty or other sufficient international legal instrument. Two principal forms of "military alliance" may be distinguished. One is characterized by an undertaking by the parties to perform certain acts in the event of a specified contingency, such as an attack on one of them by a third country or countries. An example of this type of alliance is the North Atlantic Alliance, the legal basis for which is the North Atlantic Treaty of April 4, 1949 .

It may be pointed out that modern military alliances such as NATO would more accurately be characterized as "mutual security" or "collective defense" relationships.

The other principal form of military alliance is represented by a legal relationship entered into subsequent to the commencement of armed conflict in which one or more of the parties is already engaged. The usual object of such a relationship is to bind the parties to a common effort against a mutual enemy or enemies. The relationship generally lapses with the formal cessation of the conflict.... [D]uring World War II the United States and twentyfive other nations concluded the Declaration of January 1, 1942 (the so-called United Nations Declaration), whereby each party pledged itself to employ its "full resources, military or economic" against whichever member or members of the Tripartite Pact (i.e., Germany, Italy, and Japan) with which it was at war, to cooperate with the other nations party to the Declaration, and not to conclude "a separate armistice or peace" with the enemy.

Its legal connotations aside, the term "alliance", along with “ally" and "allies", is very frequently employed to describe two or more countries engaged in armed conflict against a common enemy, notwithstanding the presence or absence of a legal relationship of the sort outlined above. In World War I, for example, the United States went to war in order to preserve and defend its vital interests rather than in order to fulfill some preexisting legal obligation. Nevertheless, the United States is often referred to as an "ally" of the United Kingdom and France in that conflict in light of the extremely high degree of military cooperation and mutual assistance made necessary by the prosecution of a war against a common enemy.

Dept. of State File No. P76 0091-1204. The North Atlantic Treaty is at TIAS 1964;63 Stat. 2241; 4 Bevans 828. The U.N. Declaration is at EAS 236; 55 Stat. 1600; 3 Bevans 697.

Regional Security Systems

North Atlantic Treaty Organization (NATO)

Title VIII of the Department of Defense Appropriation Authorization Act, 1977 (P.L. 94-361; 90 Stat. 923), approved July 14, 1976, contains in section 802 a declaration that it is the policy of the United States that equipment procured for the use of personnel of the Armed Forces of the United States stationed in Europe under the terms of the North Atlantic Treaty should be standardized or at least interoperable with equipment of other members of the North Atlantic Treaty Organization. The Secretary of Defense is directed to take into consideration in procurement procedures the cost, function, quality, and availability of the equipment to be procured while carrying out the policy of standardization. The section requires him further to report to Congress whenever he initiates procurement action on a new major system which is not standard or interoperable with equipment of other NATO members.

Section 803 of the Act expresses the sense of Congress that weapons systems being developed wholly or primarily for employment in the NATO theater shall conform to a common NATO requirement in order to proceed toward joint doctrine and planning and to facilitate maximum feasible standardization and interoperability of equipment. It declares that a common NATO requirement shall be understood to include a common definition of the military threat to the NATO countries. The section requires the Secretary of Defense to seek areas for cooperative arrangements for coproduction and licensing of production of military equipment among the NATO allies. It states the sense of Congress that standardization on the basis of a "two-way street" between Europe and North America can only work realistically if the European nations operated on a united and