relating to acts performed by them in their official capacity and falling within their functions. However, these provisions might not protect a judge while in residence in the United States, even if he had taken up residence here in order to be readily accessible to The Hague.

Accordingly, there is submitted for your consideration and favorable action a draft bill to give judges of the International Court of Justice, other than nationals of the United States, the privileges and immunities which the United States now grants to envoys accredited to it. The granting of such privileges and immunities would be in conformity with the recommendation of the General Assembly. It would also symbolize the importance attached by the United States to the impartial and independent functioning of international judicial tribunals.

The Department has been informed by the Bureau of the Budget that there is no objection to the submission of this proposed legislation.

Sincerely yours,

The legislation reads as follows:

CHRISTIAN A. HERTER,
Acting Secretary.

A Bill to extend certain privileges and immunities to judges of the International Court of Justice.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the judges of the International Court of Justice, other than nationals of the United States, shall be entitled in the territory of the United States to the same privileges and immunities as are accorded to diplomatic envoys accredited to the United States.

Mr. CARNAHAN. This letter is the basis for the consideration of proposed legislation. The bill has not been introduced.

I called the meeting to hear from the State Department as to why they feel that this legislation is necessary and to give the members of the subcommittee a chance to express their opinions regarding the

matter.

We are fortunate to have with us this afternoon the Honorable Loftus E. Becker, Legal Adviser of the State Department.

Mr. Becker, we will be glad to have from you any statement that you may care to make.

STATEMENT OF HON. LOFTUS E. BECKER, LEGAL ADVISER,
DEPARTMENT OF STATE

Mr. BECKER. Thank you, Mr. Chairman.

Mr. Chairman and members of the committee, on December 11, 1946, the General Assembly of the United Nations adopted Resolution 90(I), which dealt with the subject of privileges and immunities of members of the International Court of Justice. That resolution provided in part as follows:

The General Assembly *** recommends that if a judge, for purpose of holding himself permanently at the disposal of the Court, resides in some country other than his own, he should be accorded diplomatic privileges and immunities during the period of his residence there.

This resolution was passed in the Sixth Committee of the General Assembly, which is the committee dealing with legal matters, and adopted in the General Assembly itself, by unanimous votes.

However, implementation of this resolution has thus far not been undertaken by the United States. There was, of course, no legal obligation to do so, although General Assembly recommendations are entitled to careful consideration by member states of the United

Nations and have customarily been accorded weight and respect in the United States.

Even at the time when the resolution was adopted, the judges of the International Court of Justice possessed substantial privileges and immunities within the United States under applicable law.

Article 19 of the statute of the Court, which is annexed to, and forms an integral part of, the Charter of the United Nations, provides that members of the Court, when engaged on business of the Court, shall enjoy diplomatic privileges and immunities.

In addition, section 7(b) of the International Organizations Immunities Act grants to officers of international organizations, such as the judges of the International Court of Justice, immunity from suit and legal process relating to acts performed by them in their official capacity and falling within their functions. Both of these provisions are in effect today. It will be apparent, however, that these provisions do not effectuate the results contemplated in Resolution 90(I).

A judge of the International Court of Justice may choose to reside in a country other than his own for the purpose of making himself more readily accessible to the Court without being continuously engaged on the business of the Court or immediately occupied in the performance of an act in his official capacity, and falling within his functions. Recent developments in transportation have increased the significance to the United States of the situation envisaged in General Assembly Resolution 90(I).

In view of existing air schedules between United States and Europe, the seat of the International Court of Justice at The Hague is only a few hours away. Moreover, the location within the United States of the headquarters of the United Nations naturally exerts an attraction upon international officials, including judges of the International Court of Justice.

For this reason, it may be anticipated that, to an extent not previously customary, judges may seek residence within the United States for the purpose of holding themselves at the disposal of the Court. Diplomatic privileges and immunities are already conferred by France and Italy on judges of the International Court of Justice, other than their own nationals, who choose to reside within their territories.

The United States grants diplomatic privileges and immunities to the permanent representatives of members of the United Nations to the United Nations, and to certain members of their staffs as well.

It is our belief that judges of the International Court of Justice should be welcomed to take up residence within the United States; and we are confident that judges would view the proposed statute as an expression of welcome.

You are dealing here with 15 individuals. There are a total of 15 judges on the International Court.

As of the present day, because there is a U.S. member of the Court, and because the privileges and immunities would not be accorded in the United States to citizens of the United States, it involves only 14 individuals.

There is also a provision in the charter of the Court that where a state which does not have a member on the Court is a party to litiga

tion, and the other party to the litigation has a member, then an additional ad hoc judge may be appointed for the purposes of that case, so there could be a case-to correct myself-where 15 individuals might be involved.

Now, it is a very small number of individuals as compared with, I am informed, the some 525 individuals who have such diplomatic privileges and immunities under section 15 of the United Nations Headquarters Agreement in New York, but from our standpoint it is a very important addition.

We in every respect are trying to advance the rule of law and gain respect for the International Court of Justice. We feel that it is rather invidious under the existing legislation to have to determine in the case of a judge who is residing in the United States as to whether, when a particular act occurs, he was or was not acting in performance of his official duties.

In our view, a judge is similar to an officer of the army. He is on duty 24 hours a day, and I must say I would find it almost impossible to determine whether, if a judge was writing an opinion and then proceeded on to his home, whether or not in that intervening time he was in performance of duty.

I think it would be rather undignified for us to make an inquiry into that issue of fact.

I think that the judges certainly should be accorded treatment equal to that to which we give foreign diplomats and I think it is a very desirable thing to have judges of the International Court of Justice in residence in this country.

Thank you, gentlemen. I shall be glad to answer any questions you may desire to ask.

Mr. CARNAHAN. Are there any judges other than the United States member of the Court now residing in the United States?

Mr. BECKER. As of the present day, I am not aware that any judge other than Green Hackworth resides in the United States.

Mr. CARNAHAN. Is there an indication some of the judges may want to take up residence in this country?

Mr. BECKER. I had heard some of the judges may want to take up residence in this country; yes, Mr. Chairman.

Mr. CARNAHAN. And we would only be extending to them the diplomatic immunities that are extended to people attached to the U.Ñ., or to embassies in this country?

Mr. BECKER. That is correct, Mr. Chairman.

Mr. CARNAHAN. Just as a matter of information, what countries are represented on the Court at the present time?

Mr. BECKER. I will just have to go down the line in my recollection on that.

China, Pakistan, Norway, United States, Russia.

Mr. CARNAHAN. You may supply the complete list for the record if you desire.

Mr. BECKER. Very well.

(The information requested is as follows:)

Mr. Helge Klaestad, President, Norway.

Sir Muhammad Zafrulla Khan, Vice President, Pakistan.
Judges:

J. G. Guerrero, El Salvador.

J. Basdevant, France.

G. H. Hackworth, United States of America.

B. Winiarski, Poland.

A. H. Badawi, United Arab Republic.

E. C. Armand-Ugon, Uruguay.

F. I. Kojevnikov, U.S.S.R.

Sir Hersh Lauterpacht, United Kingdom.

L. M. Moreno Quintana, Argentina.

R. Cordova, Mexico.

V. K. Wellington Koo, China.

J. Spiropoulos, Greece.

Sir Percy Spender, Australia.

Mr. CARNAHAN. Dr. Judd.

Mr. JUDD. Mr. Chairman, I can see no reason for not passing this bill. I am surprised that it was recommended by the General Assembly with our country's affirmative vote as long ago as December 1946, and no action has been taken on it previously. Probably, as you say, nobody brought the question up, as no justice planned to live here. Mr. Becker, I wonder about one sentence here in your letter regarding this legislation, at the bottom of the first page. It says: France and Italy, for example, grant diplomatic privileges and immunities to judges not nationals of the state of residence.

Are those judges of the International Court of Justice, or does that mean other kinds of judges?

Mr. BECKER. It is my understanding that refers only to judges of the International Court of Justice.

Mr. JUDD. I wondered if the countries exalted the position of judge to the point that a judge of the Federal Government or the national government of another country is granted this sort of immunity in those two countries, France and Italy.

I think, Mr. Chairman, that you or the chairman of the full committee should introduce the bill and we bring it out.

Mr. CARNAHAN. Mr. Fountain.

Mr. FOUNTAIN. Mr. Chairman, I am inclined to agree with Dr. Judd. However, since we have these gentlemen here, for my own information and the record, Mr. Becker, will you tell us just what the privileges and immunities of diplomatic envoys accredited to the United States are?

Mr. BECKER. Well, in the first instance they are free of civil or criminal process. Those are the basic immunities.

Mr. FOUNTAIN. I am familiar with those. Are there any other immunities that would concern them or in any way affect their ability to operate?

Mr. BECKER. Under our existing legislation with respect to international organizations, and in general, it is true of diplomats, they also are permitted to bring in their baggage and effects free of duty or customs charges and things of that sort.

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Mr. FOUNTAIN. But they are inspected?

Mr. BECKER. I understand they are not inspected. I was thinking of traveling on diplomatic passport where your effects are inspected. Mr. CARNAHAN. That is probably a matter of courtesy and they are not inspected.

Mr. BECKER. It is a matter of courtesy and not a matter of right. That is all, sir.

Mr. CARNAHAN. Mr. Fascell.

Mr. FASCELL. I have no questions, Mr. Chairman.

Mr. CARNAHAN. Mr. Coffin.

Mr. COFFIN. What is the sanction if a crime is committed by a diplomat and no criminal process runs against him?

Mr. BECKER. There is no sanction as such. In the case of a diplomat, what you can do is declare him persona non grata and have him return to his own country.

Mr. COFFIN. Of course, I don't think this is a very real possibility, but does the doctrine of persona non grata also apply to judges on international tribunals?

Mr. BECKER. I haven't considered the question before, but my offhand answer would be that even if there were an argument that it could be applied we would not want to exercise it.

Mr. COFFIN. Somewhat with tongue in cheek I would suggest we could amend this to include Justices of our own Supreme Court. There occasionally seems to be a need.

Mr. JUDD. For their protection?

Mr. COFFIN. Yes.

I have no further questions, Mr. Chairman.
Mr. CARNAHAN. Mr. Meyer.

Mr. MEYER. I find myself in a rather strange position on this because I certainly am in full accord with everything in this proposal and yet there is a little warning bell that rings in the back of my mind.

I wonder if it is actually wise, considering the condition of world affairs, for these judges to reside in the United States where by doing something of this type it might look as though we were perhaps doing something which might lead to the statement being made that we are in some indirect way trying to influence these judges by having them residents of our country.

In other words, I am in complete sympathy with the thing, and I think it is right and it should be done; but I just wonder whether it is really wise for the above reason.

Mr. BECKER. Well, Congressman, I have some thoughts that may tend to reassure you on that point.

I think under present conditions of the world it would be a very fine thing if one or more members of that Court resided in the United States. The reason I say that is that there is provision under the statutes of the Court for the Court to operate in panels. That is, you don't have to have the whole Court operating.

I can conceive of a situation arising where the seat of the Court at The Hague is destroyed, and yet the institution could be perpetuated under such circumstances by action of a panel sitting in the United States.

That is the type of thing we have to consider possible in days like these; and I think it would be more important under such circum