(2) Within thirty days after the designation of the two members of the tribunal, they shall agree on a third arbitrator. He shall not be of the same nationality as, or resident in the territory of, any disputant or in its service..

(3) If either side fails to nominate an arbitrator within the period specified or if the third arbitrator is not appointed within the period specified, the President of the International Court of Justice, or, if he is prevented from acting or is of the same nationality as a disputant, the Vice-President, or, if he is prevented from acting or is of the same nationality as a disputant, the senior judge who is not of the same nationality as any disputant, may at the request of either disputant, appoint an arbitrator or arbitrators as the case requires.

(4) The third arbitrator shall act as president of the tribunal.

(5) The tribunal is constituted as soon as the president is selected.

Article 4

(1) If a vacancy occurs in the tribunal for any reason which the president or the remaining members of the tribunal decide is beyond the control of the disputants, or is compatible with the proper conduct of the arbitration proceedings, the vacancy shall be filled in accordance with the following provisions:

(a) If the vacancy occurs as a result of the withdrawal of a member appointed by a side to the dispute, then that side shall select a replacement within ten days after the vacancy occurs.

(b) If the vacancy occurs as a result of the withdrawal of the president or of a member appointed pursuant to Article 3(3), a replacement shall be selected in the manner described in paragraph (2) or (3), respectively, of Article 3.

(2) If a vacancy occurs for any other reason, or if a vacancy occurring pursuant to paragraph (1) is not filled, the remainder of the tribunal shall have the power, notwithstanding Article 1, upon request of one side, to continue the proceedings and give the final decision of the tribunal.

Article 5

(1) The tribunal shall decide the date and place of its meetings.

(2) The proceedings shall be held in private and all material presented to the tribunal shall be confidential. However, the Organization and any Party which has designated a Signatory which is a disputant in the proceedings shall have the right to be present and shall have access to the material presented. When the Organization is a disputant in the proceedings, all Parties and all Signatories shall have the right to be present and shall have access to the material presented.

(3) In the event of a dispute over the competence of the tribunal, the tribunal shall deal with that question first.

(4) The proceedings shall be conducted in writing, and each side shall have th right to submit written evidence in support of its allegations of fact and law. However, oral arguments and testimony may be given if the tribunal considers it appropriate.

(5) The proceedings shall commence with the presentation of the case of the petitioner containing its arguments, related facts supported by evidence and the principles of law relied upon. The case of the petitioner shall be followed by the counter-case of the respondent. The petitioner may submit a reply to the counter-case of the respondent and the respondent may submit a rejoinder. Additional pleadings shall be submitted only if the tribunal determines they are necessary.

(6) The tribunal shall hear and determine counter-claims arising directly out of the subject matter of the dispute, if the counter-claims are within its competence as defined in Article 31 of the Convention and Article XVI of the Operating Agreement. (7) If the disputants reach an agreement during the proceedings, the agreement shall be recorded in the form of a decision of the tribunal given by consent of the disputants.

(8) At any time during the proceedings, the tribunal may terminate the proceedings if it decides the dispute is beyond its competence as defined in Article 31 of the Convention or Article XVI of the Operating Agreement.

(9) The deliberations of the tribunal shall be secret.

(10) The decisions of the tribunal shall be presented in writing and shall be supported by a written opinion. Its rulings and decisions must be supported by at least two members. A member dissenting from the decision may submit a separate written opinion.

(11) The tribunal shall forward its decision to the Directorate, which shall distribute it to all Parties and Signatories.

(12) The tribunal may adopt additional rules of procedure, consistent with those established by this Annex, which are appropriate for the proceedings.

Article 6

If one side fails to present its case, the other side may call upon the tribunal to give a decision on the basis of its presentation. Before giving its decision, the tribunal shall satisfy itself that it has competence and that the case is well-founded in fact and in law.

Article 7

(1) Any Party whose Signatory is a disputant shall have the right to intervene and become an additional disputant. Intervention shall be made by written notification to the tribunal and to the other disputants.

(2) Any other Party, any Signatory or the Organization may apply to the tribunal for permission to intervene and become an additional disputant. The tribunal shall grant permission if it determines that the applicant has a substantial interest in the

case.

Article 8

The tribunal may appoint experts to assist it at the request of a disputant or on its own initiative.

Article 9

Each Party, each Signatory and the Organization shall provide all information which the tribunal, at the request of a disputant or on its own initiative, determines to be required for the handling and determination of the dispute.

Article 10

Pending the final decision, the tribunal may indicate any provisional measures which it considers ought to be taken to preserve the respective rights of the disputants.

Article 11

(1) The decision of the tribunal shall be in accordance with international law and be based on:

(a) The Convention and the Operating Agreement.

(b) Generally accepted principles of law.

(2) The decision of the tribunal, including any reached by agreement of the disputant pursuant to Article 5(7), shall be binding on all the disputants, and shall be carried out by them in good faith. If the Organization is a disputant, and the tribunal decides that a decision of any organ of the Örganization is null and void as not being authorized by or in compliance with the Convention and the Operating Agreement, the decision of the tribunal shall be binding on all Parties and Signatories. (3) If a dispute arises as to the meaning or scope of its decision, the tribunal shall construe it at the request of any disputant.

Article 12

Unless the tribunal determines otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of the members of the tribunal, shall be borne in equal shares by each side. Where a side consists of more than one disputant, the tribunal shall apportion the share of that side among the disputants on that side. Where the Organization is a disputant, its expenses associated with the arbitration shall be regarded as an administrative cost of the Organization.

IMCO Doc. MARSAT/CONF/38, Oct. 27, 1976.

3

Judicial

Settlement; The International Court of Justice

Judicial Settlement

R. Bartlett Moon, representing the United States at the meeting on March 10, 1976, of the Permanent Council of the Organization of American States (OAS) to consider proposed amendments to the OAS

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