tion between certain provisions of the Charter and the United States declaration of acceptance of compulsory jurisdiction of the International Court of Justice. Senator Millikin requested a memorandum on this subject. The questions asked related to: (1) the extent to which the Department of State favors the provisions relating to the Court in the New York draft of the Charter (article 86, paragraphs 2, 3, and 4); (2) the relation between jurisdiction of the Court under the Charter and the United States reservation as to domestic matters in its declaration accepting jurisdiction of the Court; (3) the jurisdiction of the Court relative to certain matters arising under the Charter which relate to the security interests of the United States; and (4) the giving of advisory opinions by the Court upon matters arising under the Charter.

1. Views of the Department concerning Article 86

As Mr. Stinebower pointed out, it was through a typographical error that paragraphs 2, 3, and 4 of Article 86 of the printed New York draft of the Charter were not bracketed as paragraphs upon which agreement has not yet been reached. As stated by Mr. Stinebower, the Department will press for the deletion from the second and third lines of paragraph 2 of the words "or arising out of its operation". If this change is made the provisions concerning submission of questions to the Court will only cover justiciable issues relating to the interpretation of the Charter itself.

2. Jurisdiction of International Court of Justice on domestic questions

Senator Millikin inquired whether the provisions of Article 86 of the Charter conflict in any way with the reservation as to domestic matters made by the United States in accepting the jurisdiction of the International Court of Justice. The United States declaration accepting jurisdiction of the Court was made pursuant to the second paragraph of Article 36 of the Statute, which reads:

"The state parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established, would constitute a breach of an international obligation;

d. the nature or extent of the reparation to be made for the breach of an international obligation."

The provisions of Article 86 of the Charter confer jurisdiction on the Court pursuant to the first paragraph of Article 36 of the Statute of the Court, which provides as follows:

"The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force."

The jurisdiction of the Court under the United States declaration of acceptance covers a wide field of questions, including among other things, the interpretation of any international agreement to which the United States is or may become a party, and any questions of international law or international obligation of the United States. The intent of the reservation with respect to domestic questions was to provide a safeguard which the Congress deemed necessary to protect the interests of this country in accepting the very broad obligations contained in paragraph 2 of Article 36 of the Court's Statute.

On the other hand, the jurisdiction conferred on the Court under Article 86 of the Charter is confined to the field of questions with respect to the interpretation of the Charter, which will be a specific and known agreement the final test of which will have been submitted for approval to the Congress before it enters into force. Such an acceptance of the Court's jurisdiction within the limited scope of a particular agreement, as is envisaged by Article 86, is not therefore inconsistent with the purpose of the reservation to the acceptance by the United States of the broad jurisdiction of the Court in its declaration.

Such a limited acceptance of the Court's jurisdiction would be in accord with the practice of the United States, which has already accepted the jurisdiction of the Court with respect to the interpretation of particular international agree ments, without making any such reservation as was made in the declaration accepting jurisdiction of the Court generally. Thus, the Congress has approved the constitution of the United Nations Educational, Scientific, and Cultural Organization which provides for the submission to the Court of questions as to

their interpretation. Before the war the Congress, in authorizing United States membership in the International Labour Organization, accepted the jurisdiction of the Permanent Court of International Justice with respect to the interpretation of the Charter of that Organization and of international labor conventions to which the United States might become a party, several of which have received the advice and consent of the Senate. The Statute of the new International Court of Justice provides that such a provision referring to the former Court shall operate to give jurisdiction to the new Court in the case of parties thereto. Moreover, other countries, notably Canada and the United Kingdom, have qualified their acceptance of the general jurisdiction of the International Court of Justice by a reservation somewhat comparable to that made by the United States, but have not attached any such qualification to their acceptance of the Court's jurisdiction to interpret particular international agreements.

Consequently, under the practice of both the United States and of other countries, there is ample precedent for not attaching to the ITO Charter any qualification such as is attached to general acceptance of the jurisdiction of the Court.

3. Submission of Security Questions to the Court

Senator Millikin questioned Mr. Phillips and Mr. Terrill as to whether the Charter required the submission to the Court of questions involving certain exceptions to the Charter relating to the security interests of the United States. In this connection it may be pointed out that the United States delegation will seek at Geneva to have substituted for certain exceptions relating to security interests now found in various parts of the Charter (for instance, Article 37 (c), (d), (e), and (k) and Article 59 (c)) general exceptions for these matters applicable to the whole Charter. These new exceptions would be worded so as to give to each Member freedom to apply them as it determines in the interest of its own security. It is believed that this change, which would involve a deletion from Article 86 of the reference to appeal to the Court with respect to these matters, would satisfactorily take care of the general questions raised as to the freedom of the United States with respect to matters involving its security interests raised with Mr. Phillips, and would also assure the necessary freedom with respect to secrecy for atomic technology discussed with Mr. Terrill.

4. Advisory Opinions Relating to Charter

Senator Millikin also questioned Mr. Stinebower relative to the advisory opinions which might be given by the Court relating to the ITO Charter.

The field of advisory opinions is, of course, not included in the United States declaration accepting the compulsory jurisdiction of the Court, and is therefore not covered by the reservation concerning matters essentially within our domestic jurisdiction.

The competence of the Court with respect to the rendering of advisory opinions is based on Article 96 of the United Nations Charter and paragraph 1 of Article 65 of the Court's Statute which read as follows, respectively:

Article 96 of the United Nations Charter

"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. "

Article 65 of the Court's Statute

"1. 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."

Thus, in becoming a member of the United Nations the United States has recognized the right of the General Assembly or the Security Council to request the Court for an advisory opinion on legal questions, which would include, of course, questions of interpretation of the ITO Charter after its entry into force. The last paragraph of Article 86 of the ITO Charter would merely extend to the International Trade Organization, upon authorization by the General Assembly, the authority to request advisory opinions on questions relating to the activities of the Organization.

EXHIBIT XVI

UNITED STATES FORMULA FOR WEIGHTED VOTING

The following amendments to Article 64 (Voting in the Conference), Article 68 (Membership in the Executive Board) and Article 69 (Voting in the Executive Board) are designed to provide for a system of weighted voting in the ITO which would be strictly confined to issues arising out of the balance-ofpayments provisions of the Charter, and to the issue of Membership in the Executive Board.

The main consideration in support of this plan is that exchange restrictions and quantitative restrictions on trade are equally effective alternative methods of dealing with balance of payments problems; that exchange restrictions are under the jurisdiction of the International Monetary Fund, which has a system of weighted voting; and that if the same voting system is adopted in the ITO on balance of payments matters this will assure consistency between the actions of the Fund and the ITO on questions in which they are expected to pursue a common policy as envisaged in Articles 26, 28 and 29 of the Charter. It is recognized that the issues on which weighted voting is intended to apply may need to be more closely defined than in the following draft.

ARTICLE 64. VOTING (CONFERENCE)

1. Except as provided in paragraph 2, each Member shall have one vote in the Conference.

2. Whenever voting in the Conference is required on any matter, arising under Article 26, 28, or 29, in which the Organization and the International Monetary Fund have a common interest, and in the election of members of the Executive Board, each Member which is a member of the International Monetary Fund shall have in the Conference the same number of votes as it is currently entitled to cast in the Fund pursuant to Article XII, Section 5 (a) of the Articles of Agreement of the International Monetary Fund, and each other Member shall have in the Conference the number of votes provided for in the special exchange agreement entered into between that Member and the Organization pursuant to paragraph 3 of Article 29.

3. The Conference shall make arrangements for the detailed application of the provisions of paragraph 2 of this Article in respect of the election of members of the Executive Board. Such arrangements shall be framed on general principles analogous to those set forth in paragraphs 1 through 6 of Schedule O annexed to the Articles of Agreement of the International Monetary Fund.

(Alternatively: Such arrangements shall be framed on general principles designed to assure that (a) the votes cast by any one Member shall not count toward the election of more than one member of the Board and (b) the votes cast by each Member shall count toward the election of some member of the Board.)

4. Except as may be otherwise provided for in this Charter, decisions of the Conference shall be taken by a majority of the [Members present and voting] votes cast.

ARTICLE 69. VOTING (EXECUTIVE COUNCIL)

1. Except as provided in paragraph 2, each member of the Executive Board shall have one vote.

2. Whenever voting in the Executive Board is required on any matter, arising under Article 26, 28 or 29, in which the Organization and the International Monetary Fund have a common interest, each member of the Executive Board shall be entitled to cast the number of votes which counted towards the election of that member under paragraphs 2 and 3 of Article 64.

3. Decisions of the Executive Board shall be made by a majority of [members present and voting] the votes cast.

The suggestion submitted by the United States Delegation, sets forth a plan for weighted voting in the ITO (a) on matters in which the ITO and the Fund have a common interest, and (b) in the election of the Executive Board. The following explanations and clarifications may assist consideration of this proposal:

1. It is intended that on substantive matters the method of voting suggested should be confined to cases in which the Organization is required under the Charter to consult the Fund before acting. This purpose might be effected better by revising the opening part of par. 2 of Article 64 and par. 2 of Article 69 along the following lines (deleted language in brackets, new language underscored):

ARTICLE 64

“2. Whenever voting in the Conference is required [on any matter arising under Article 26, 28 or 29 in which the Organization and the International Monetary Fund have a common interest] on any decision of the Organization required to be taken in consultation with the International Monetary Fund under paragraphs 3 and 5 of Article 26, paragraphs 1 (iv) and 2 of Article 28, and paragraphs 4 and 6 of Article 29," etc.

ARTICLE 29

"2. (Same as above, appropriately replacing the word 'Conference' by 'Execu tive Board')."

2. With regard to the application of the Fund voting system to the election of the members of the Board of the ITO, the following points may be noted:

A. No Member would be allowed to split his vote so as to elect more than one member of the Board. In other words, countries having a large number of votes because of their large quotas in the Fund (which have relation to the economic importance of the country) could use these votes only for the purpose of electing themselves to the Board. Thus, as will be explained below, the six countries having the largest votes would all be equal for this purpose despite the difference in their votes.

B. It would be provided in general that no Member could be elected to the Board on any ballot unless he obtained a number of votes equal to the average resulting from a division of the total number of eligible votes by the total number of members to be elected. Thus, using the Fund voting quotas, the following results would be achieved:

1. On the first ballot, the average number of votes required to elect, assuming an Executive Board of fifteen members, would be over 6,000. Since only three countries (the United States, the United Kingdom and the USSR) have more than this number, presumably only these three countries would be elected on the first ballot.

2. On the second ballot, the average number of votes required to elect (the eligible votes divided by the remaining number of seats) would be 3,944 This would means that China (5,750 votes), France (5,500 votes) and India (4,259 votes) could elect themselves on this ballot.

3. On the third ballot approximately 3,500 votes would be required to elect. Since no one of the remaining countries would have this number of votes, it would require the support of some other country or countries to be elected.

4. Countries comprising a geographical area could be almost certain of electing a director if they voted together, for example, the Latin American republics (excluding Argentina) would have 9,645 votes and thus could always elect two directors. An illustration of how this might work out is afforded by the elections in the Monetary Fund.

C. In order to make provision against the possibility that there might be inadequate rotation of seats, the Conference by majority vote would be author ized to declare for any election that retiring members (other than those elected by the six members of the Organization having the largest number of votes, or whatever member is decided upon) shall not be eligible for immediate reelection D. In voting in the Executive Board on the balance of payments issues referred to above, each Member would cast the votes which counted towards his election (or to which the Member is entitled in his own right, whichever is higher).

E. A possible advantage of the plan is that each Member of the ITO would, so to speak, have a particular representative on the Board to which it could look for assistance in making its voice heard.