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The United Nations and Domestic Jurisdiction

Published online by Cambridge University Press:  22 May 2009

Leland M. Goodrich
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Extract

Referring to “domestic jurisdiction” as used in the League Covenant, Professor J. L. Brierly characterized it as “a new catchword,” capable of proving as great a hindrance to the orderly development of international law as “sovereignty” and “state equality” had been in the past, and about which “little seems to be known except its extreme sanctity.” Since these words were written, the Covenant of the League of Nations has been replaced by the Charter of the United Nations as the basic law of the organization of the world community. The concept of a reserved domestic jurisdiction is still with us. In fact, Article 2, paragraph 7, of the Charter gives it a broader definition and a wider range of application than did Article 15, paragraph 8, of the Covenant. What is the meaning of the domestic jurisdiction principle as set forth in the Charter? What effect has it had in practice on the working and development of the United Nations?

Type
Articles
Information
International Organization , Volume 3 , Issue 1 , February 1949 , pp. 14 - 28
Copyright
Copyright © The IO Foundation 1949

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References

1 Brierly, J. L., “Matters of Domestic Jurisdiction,” British Yearbook of International Law, VI (1925), p. 8Google Scholar.

2 “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of a state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

3 “If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.”

4 See Cory, Helen M., Compulsory Arbitration, New York, 1932Google Scholar.

5 See Miller, David Hunter, The Drafting of the Covenant, I, p. 277Google Scholar.

6 Especially the first sentence of paragraph 1 which read as follows: “Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations.”

7 See Publications of the Permanent Court of International Justice, Series B, no. 4.

8 For report of the Committee, see League of Nations, Official Records, Special Supplement 3 (10 1920)Google Scholar.

9 See Gross, Leo, “The Charter of the United Nations and the Lodge Reservations” Journal of International Law, XLI (1947), p. 538–46Google Scholar.

10 See, in particular, Article 55 of the United Nations Charter. When the extent of the article was being considered by Committee II/3 at San Francisco, the United States Delegation insisted on the inclusion in the report of the committee of a specific reaffirmation of the domestic jurisdiction principle. See United Nations Conference on International Organization, Documents, X, p. 271–2Google Scholar.

11 Ibid., VI, p. 507–8.

12 See Evatt, H. V., The United Nations, Cambridge, 1948CrossRefGoogle Scholar, and memorandum presented by Dr. Evatt on behalf of the Australian Delegation at Francisco, San, United Nations Conference on International Organization, Documents, VI, p.436–40Google Scholar.

13 Document S/75, p. 2.

14 Security Council, Journal, No. 38, p. 767Google Scholar.

15 General Assembly, Official Records of the Second Part of the First Session … Plenary Meetings, p. 1219–20Google Scholar.

16 General Assembly, Resolutions Adopted … during the Second Part of Its First Session …, Document A/64/Add. 1, p. 63–4Google Scholar.

17 Security Council Journal, No. 11, p. 207–8Google Scholar.

18 ibid., p. 214.

19 For detailed consideration of Council action see Emerson, Rupert, “Reflections on the Indonesian Case,” World Politics, I (1948), p. 59–81CrossRefGoogle Scholar.

20 Document S/P.V. 195, p. 31, 41–6.

21 General Assembly, Official Records of the Second Part of the First Session … Joint Committee of the First and Sixth Committees, p. 3–4Google Scholar.

22 General Assembly, Resolutions Adopted … by the Second Part of the First Session …, Document A/64/Add. I., p. 69Google Scholar.

23 General Assembly, Official Records of the Second Part of the First Session …, Plenary Meetings, p. 1334Google Scholar.

24 Economic and Social Council, Official Records, Third Year: Sixth Session, Supplement 1, p. 36Google Scholar.

25 This does not, of course, mean that the Commission must accept the determination of the metropolitan state as to whether a particular territory has ceased to be non-self-governing. The Commission has, for example, asserted its right to admit the Indonesian Republic.

26 See Preuss, Lawrence, “The International Court of Justice the Senate and Matters of Domestio Jurisdiction,” American Journal of International Law, XL (1946), p. 720–36CrossRefGoogle Scholar.