Larson, Arthur

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The Self-Judging Clause and Self-Interest

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The Self-Judging Clause and Self-InterestIn urging repeal of the Connally Reservation during the debate atthe Pacific Northwest Regional Meeting of the American Bar Associa-tion, Mr. Larson argued that it is to the interest of the United Statesto repeal the "self-judging" Reservation because its existence providesa means by which any nation may evade the World Court's jurisdictionwhen the United States seeks to obtain redress in the court.by Arthur Larson * Director of the World Rule of Law Center, Duke UniversityM Y ARGUMENT FOR the repeal ofthe "self-judging" clause in the Amer-ican acceptance of the World Court'sjurisdiction will be addressed solely tocold-blooded American self-interest.That self-interest is severely damagedbecause of the reciprocal right of everyother nation in the world to invoke thisclause against us and thus throw usout of court whenever we might at-tempt to vindicate a legal claim onbehalf of our country or one of itscitizens or corporations.The story begins with the NorwegianLoans case. Norway had issued a largequantity of bonds in France, payablein gold. Then Norway went off the gold'standard and refused to pay in gold-France, confronted with severe loss tohundreds of thrifty Frenchmen, broughtsuit in the International Court of Jus-tice demanding payment in gold.France had a self-judging clause sim-ilar to our Connally Reservation. Nor-way did not. The International Courtheld that, as a matter of reciprocity,Norway could exercise France's claimedreservation and call the entire transac-tion domestic. Result: financial loss incold cash to citizens in France. Cause:A supposedly protective clause inter-posed by the guardians of French in-terests. Sequel: France last year re-pealed her self-judging clause.Since this case was decided only in1957, the full implications have notbegun to sink into the consciousness ofthe American Bar and the Americanpeople. If the position of the AmericanBar Association opposing the ConnallyReservation was valid for reasons ofself-interest in 1946, it is twenty timesas valid today.Let us put the present state of affairsin the bluntest possible terms. Thepresence of this self-judging clause inour declaration means that we our-selves have destroyed, absolutely andwithout exception, every conceivableright that we might ever have had toenforce any legal claim against anycountry under any circumstances forany damage to our rights under thegeneral jurisdiction of the Interna-tional Court of Justice. For now. when-ever we try to assert as plaintiffs anylegitimate right in the InternationalCourt, it is our opponents who merelyhave to utter the magic words, "Thisis domestic" and we are thrown outof court with no legal recourse whatso-ever. France found this out the hardway, and repealed her self-judgingclause. Must we similarly have to sub-ject innocent Americans to severe fi-nancial loss before we learn our lesson?After all, we are the ones who needthe protection more than any othercountry. We are the ones with $45,000,-000,000 invested within other coun-tries' boundaries, with the ever-presentdanger of damage, confiscation, anddiscrimination. We are the ones with500,000 nationals and 700,000 touristsabroad, always in danger of personalinjury and property damage. We arethe ones with foreign bases, communi-cations installations, transportation fa-cilities, and economic and technical aidprojects. The chances of our needing,as plaintiffs, the help of the court aremany times as great as the chances ofour appearing as defendant.We would do well to recall the well-known lines of Robert Frost:Before I built a wall I'd ask to knowWhat I was walling in or walling out.The principal effect of what we havedone is not so much to wall the otherfellow out of court, as to wall ourselvesout, whenever we have a valid claim.One of the least-known features ofthis situation is the fact that this self-judging clause also destroys valuablerights under our economic aid pro-grams that were specifically created inthe name of national self-interest. TheEconomic Cooperation Act of April 3,1948, stipulates that every economicaid agreement must include a provision"submitting for the decision of theInternational Court of Justice or ofany arbitral tribunal mutually agreedupon any case espoused by the UnitedStates Government involving compen-sation of a national of the United StatesJuly, 1960 - Vol. 46 729The Self-Judging ClauseFabian BachrackArthur Larson is now Director ofthe World Rule of Law Center atDuke University in Durham, NorthCarolina. His career has includedprivate practice, teaching and gov-ernment service. He has been Deanof the University of Pittsburgh LawSchool, Director of the U.S.I.A. andSpecial Assistant to President Eisen-hower.for governmental measures affectinghis property rights, including contractswith, or concessions from, such coun-try." But since the self-judging clause,'omplete with its reciprocal backlash,is incorporated by reference in all theseagreements, we have thus once morecompletely and effectively destroyed atone stroke all the rights that supposed-ly were laboriously built up both in thestatute and in the agreements for com-pulsory judicial settlement of disputesnegotiated in the pursuance of the stat-ute. Consequently, if the current debatewere conducted on the basis of reallyintelligent self-interest, there would beno escape from the conclusion that theself-judging clause must be repealed inorder to restore these rights of Amer-ican citizens, businesses, and investorswhich we thought we were protecting,but which the self-judging amendmenthas destroyed.There are other items of Americanself-interest at stake here, perhaps notso obvious and material, but in someways even more important.There is a strong self-interest in re-establishing our position as leaders inthe struggle to bring about a lawfulworld. We might as well face the factthat the United States seriously needsat this very moment a tangible actionto demonstrate our devotion to law inthe eyes of the world. Indeed, we arealready losing our opportunity forleadership here. France has repealedher self-judging clause. So has India.So has Britain.The clause hurts our self-interest alsobecause it makes us look foolish tointelligent people everywhere. There isnothing more elementary in every legalsystem of the world than that no manshould be a judge in his own cause. Toassert such a right on the domesticscene would make anyone a laughingstock. To assert it on the internationalscene is no less preposterous.Our self-interest is also hurt becausethis declaration is probably invalid. Ar-ticle 36, paragraph 6, of the Statute ofthe International Court, to which theUnited States is a party, and to whoseprovisions it is therefore committed asa matter of law, states:In the event of a dispute as to whetherthe Court has jurisdiction, the mattershall be settled by the decision of theCourt.Of course the greatest self-interest ofall is the contribution this move wouldmake toward a solid building of thepractical dispute-settling proceduresthat are essential to achieving peace ina dispute-ridden world.As against all these demonstrablevalues accruing to the self-interest ofthe United States, the arguments forretention of the Connally Reservationare found to consist entirely of imagi-nary fears which are never supportedby citations of the record of the court,of the background and character andperformance of the judges, or of theactual provisions of international law.They are based entirely on what"might" be done to our domestic af-fairs by an imaginary court, made upof altogether unheard-of judges apply-ing international law resembling noth-ing that has ever been seen on thisearth.The claim that the court might inakeus raise our immigration quotas, lowerour tariffs, and give away the PanamaCanal-these three ugly sisters that havebeen wheeled out as the standard hob-goblins from the time of Senator Con-nally's remarks on the floor of theSenate right down to the present-arethe result of two elementary fallacies.The one fallacy is the failure to dis-tinguish between the judicial functionand the legislative function: the otheris the failure to distinguish betweendomestic and international affairs.You cannot go at this question bysweeping statements that "tariffs areinternational". You have to specifywhat question about tariffs you aretalking about. The question that op-ponents of repeal are really talkingabout is a question of policy onwhether tariffs should be raised orlowered, or whether immigration quotasshould be raised or lowered. That pol-icy, in the first place, must be con-ceived and executed as a legislative act.A court can only apply the law as itfinds it. It cannot compel Congress topass laws that it does not want to passor compel the President to maketreaties he does not want to make.Moreover, the policy decision onwhether to raise or lower tariffs orimmigration quotas or make newtreaties is a domestic policy decision.Similarly, as to the Panama Canal, no-court can tell the President or theSenate to make a new treaty givingaway the Panama Canal. This would beboth an executive and a legislative act.The existing treaty has been reaffirmedby mutual consent as recently as 1955,and has been declared valid by theSupreme Court of Panama itself inGris v. The New Panama Canal Co..and in every international law decisiosor source that can be found on record.There is not one ounce of support inall of existing international law tosupport the charge that the Interna-tional Court could make us raise orlower tariffs or immigration quotas orpart with the Panama Canal againstour will.This being so, the arguments of thedefenders of the Connally Reservationcan be narrowed down to the fantasticassumption that the members of thepresent court, who comprise some ofthe most distinguished and conserva-tive judges and international law ex-perts in the world, and who havecompiled a consistent record of very730 American Bar Association JournalThe Self-Judging Clausecareful limitation of their jurisdictionto clearly international affairs, will sud-denly simultaneously all lose theirminds and start making decisions theflat contrary of what they have madefor several decades. And this assump.tion is made in spite of the fact that thejudges hold office for nine years, sothat the character of the court couldnot possibly change radically in theperiod of time covered by a new dec-laration. All this then is precisely thesort of thing any court in the landwould reject as "speculation and con-jecture". Perhaps this would not mat-ter, if this were only an academic dis-cussion. But, as I have shown earlier,we are allowing these chimeras andday-dreams to deprive us of protectionof very real legal rights that may beworth hundreds of millions of dollarsto American individuals, corporations,and national interests, and we are al-lowing these hypothetical fears to robus of very real and present prestige,international leadership, and opportu-nities for practical improvement in thedispute-settling structure that is essen-tial to a real peace.Since the opposition talk entirely interms of fears, let me plant one littlefear in their minds that they mightthink about. It is quite conceivablethat the spark which sets off the nuclearwar ending civilization and possiblyeven life on earth might be a disputewhich could have been settled by judi-cial means, if we had used theseprecious years to strengthen the struc-ture of international law and adjudica.tion. It might be another Suez; itmight be the Gulf of Aqaba; it mightbe one of the many boundary or watersdisputes now festering in the world. Ifthat day should ever come, I would notwant to be in the shoes of those whoused their efforts to block the develop-ment of dispute-settling processes thatcould have kept that spark from settingoff the final holocaust.But I am confident that day willnever come, because I am confidentthat the lawyers of America will con-tinue to take the lead in doing the solidconstructive work, including strength-ening our own use of the World Court,that is necessary to build that rule oflaw between nations which many of usnow believe may be the last, best hopeof earth.American Bar Association- Election for State DelegatesJurisdictionArizonaConnecticutDistrict of ColumbiaIllinoisIowaMaineMassachusetts (Vacancy)MichiganMississippiMontanaNebraskaNew JerseyOklahomaPuerto RicoRhode Island (Vacancy)South CarolinaSouth DakotaTexasWashingtonWyomingDelegates ElectedC. A. Carson III, PhoenixSamuel H. Platcow, New HavenFrancis W. Hill, WashingtonBarnabas F. Sears, ChicagoIngalls Swisher, Iowa CityRobinson Verrill, Cumberland Foreside*Erwin N. Griswold. CambridgeHenry L. Woolfenden, DetroitGibson B. Witherspoon, MeridianEmmett C. Angland, Great FallsGeorge H. Turner, LincolnJohn H. Yauch, Jr., NewarkHoward T. Tumilty, Oklahoma CityFrancisco Ponsa-Feliu. San Juan"j'Colin MacR. Makepeace, ProvidenceWalton J. McLeod, Jr., WalterboroRoy E. Willy, Sioux FallsCecil E. Burney, Corpus ChristiRichard S. Munter, SpokaneEdward E. Murane, CaspervTo fill vacancy expiring with adjournment of 1962 Annual Meeting.tTo fill vacancy expiring with adjournment of 1961 Annual Meeting.July, 1960 - Vol. 46 731BallotsMailed732164733356198156833622542867749395933229415541745246473084534170325633,008BallotsReturned46157910333817881168123616445603124841131929412373581532639119516218,020Percentof Return633531625650555775795249602445555058706355

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The Self-Judging Clause and Self-Interest

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