A. HAYA DE LA TORRE CASE (COLOMBIA-PERU) - United...

VI. Legal Questions

A. HAYA DE LA TORRE CASE (COLOMBIA-PERU)

In a Judgment delivered on 20 November 1950,1

the Court defined the legal relations betweenColombia and Peru in regard to questions whichthose States had submitted to it concerning diplo-matic asylum in general and, in particular, theasylum granted on 3-4 January 1949 by the Colom-bian Ambassador at Lima to Victor Raul Haya dela Torre. On the same day, Colombia asked theCourt for an interpretation of this Judgment; theCourt on 27 November ruled this request inad-missible-.2

Peru called upon Colombia to execute theCourt's Judgment of 20 November by surrender-ing Victor Raul Haya de la Torre. Colombia re-plied that this would not only disregard the Court'sJudgment but would also violate the Havana Con-vention on Asylum of 1928. Accordingly, it in-stituted proceedings before the Court by an Appli-cation filed on 13 December 1950.

In its Application and during the proceedings,Colombia asked the Court to state in what mannerthe Judgment of 20 November should be executedand further to declare that, in executing thatJudgment, Colombia was not bound to surrenderHaya de la Torre. Alternatively, the Court wasasked to declare, in the exercise of its ordinarycompetence and without reference to the Judg-ment of 20 November, that Colombia was notbound to deliver Haya de la Torre to the Peruvianauthorities.

Peru also asked the Court to state in what man-ner Colombia should execute the Judgment. Itfurther asked:

(1) the rejection of Colombia's submission requestingthe Court to state solely that it was not bound to sur-render Haya de la Torre; and (2) for a declaration thatthe asylum ought to have ceased immediately after thedelivery of the Judgment of 20 November and that it"must in any case cease forthwith in order that Peruvianjustice may resume its normal course which has beensuspended."

Notice of Colombia's Application was, in ac-cordance with the Court's Statute, transmitted tothe Members of the United Nations and to otherStates entitled to appear before the Court. At the

suggestion of the parties, the written proceedingswere limited to the submission of a Memorial anda Counter-Memorial, which were filed within thetime limits prescribed by an Order of the Courtof 3 January.

As the Court did not include upon the Benchany judges of the nationality of the parties, Colom-bia and Peru, in accordance with Article 31, para-graph 3, of the Court's Statute, chose José JoaquinCaicedo Castilla and Luis Alayza y Paz Soldán,respectively, as ad hoc judges.

On 13 March, availing itself of the right con-ferred by the Court's Statute on States, parties toa convention the interpretation of which is inissue, to intervene in the proceedings, Cuba fileda Declaration of Intervention, stating its views onthe construction of the Havana Convention. Perucontended that the intervention was inadmissibleon the grounds that it was out of time and in thenature of an attempt by a third State to appealagainst the Court's Judgment of 20 November.Colombia asked the Court to decide that Cuba wasentitled to intervene.

The Court decided to hear first the observationsof the Agents of the parties and of the Govern-ment of Cuba on the admissibility of that Govern-ment's intervention before the arguments on themerits of the case, and held a public hearing forthat purpose on 15 May. On the following day, itdecided, for reasons given in its Judgment (seebelow), to admit the Cuban intervention and toopen immediately the oral proceedings on themerits of the case.

In the course of public hearings on 16 and 17May, the Court heard statements by José Gabrielde la Vega, Agent, for Colombia, and G. Gidel,Counsel, for Peru, and a statement on the inter-pretation of the Havana Convention by Mme. FloraDíaz Parrado, Agent, for Cuba.

1

pp. 838-41.2 I.C.J. Reports 1950, p. 395; see also Y.U.N., 1950,

pp. 843-44.

I.C.J. Reports 1950, p. 266; see also Y.U.N., 1950,

800 Yearbook of the United Nations

In its Judgment, delivered on 13 June 1951,3 theCourt examined first the admissibility of the CubanGovernment's intervention. It stated that everyintervention is incidental to the proceedings in acase and that therefore a Declaration of Interven-tion acquires that character, in law, only if it actu-ally relates to the subject matter of the pendingproceedings. The subject matter of the currentproceedings, it stated, concerned a new question,the surrender of Haya de la Torre to the Peruvianauthorities, which had been outside the submis-sions of the parties in the previous case and conse-quently had not been decided in the Judgment of20 November. What had to be ascertained, there-fore, was whether the object of the interventionwas the interpretation of the Havana Conventionin regard to the question whether Colombia wasunder an obligation to surrender the refugee. TheCourt observed that the Cuban memorandum haddiscussed questions decided in the Judgment of 20November and to that extent did not satisfy theconditions of a genuine intervention. However,the Cuban Agent had stated at the hearing on 15May that the intervention was based on the factthat the Court was required to interpret a new as-pect of the Havana Convention which it had notbeen called upon to consider in its previous Judg-ment. On that basis, the Court decided to admitthe intervention.

The Court then discussed the merits of the case.It observed that both parties were seeking to ob-tain a decision as to the manner in which the Judg-ment of 20 November was to be executed. ThatJudgment, in deciding on the regularity of theasylum, had been confined to defining the legalrelations which the Havana Convention had estab-lished between the parties on this matter. It didnot give any directions to the parties and entailedfor them only the obligation to comply with theJudgment. The form in which the parties hadformulated their submissions, the Court stated,showed that they wished the Court to make achoice among the various courses by which asylummight be terminated. Such a choice, however,could not be based on legal considerations, butonly on grounds of practicability and political ex-pediency, and was consequently outside the Court'sjudicial function. The Court stated that it wastherefore impossible for it to give effect to thesubmissions of the parties in this respect.

As regards the surrender of the refugee, theCourt considered that this was a new question,which was only brought before it by the Applica-tion of 13 December 1950 and which had not beendecided by the Judgment of 20 November. Con-

sequently no conclusion as to an obligation to sur-render the refugee could be drawn from that Judg-ment. According to the Havana Convention, theCourt observed, diplomatic asylum was a pro-visional measure for the temporary protection ofpolitical offenders and, even if regularly granted,had to be terminated as soon as possible.

The Court found, however, that the Conventiondid not give a complete answer as to how anasylum should be terminated. As to persons ac-cused of or condemned for common crimes, it pre-scribed that they be surrendered upon request ofthe local government. For "political offenders" itprescribed the grant of a safe-conduct for the de-parture from the country. But a safe-conduct couldonly be claimed if the asylum had been regularlygranted and maintained, and if the territorial Statehad required that the refugee should be sent outof the country. No provision was made in the Con-vention for cases in which the asylum had not beenregularly granted and where the territorial Statehad not requested the departure of the refugee. TheCourt held that to interpret this silence as impos-ing an obligation to surrender the refugee if theasylum had not been granted regularly would berepugnant to the spirit of the Convention, whichwas in conformity with the Latin American tradi-tion of asylum, according to which political ref-ugees should not be surrendered. There was noth-ing in that tradition to indicate that exceptionshould be made where asylum had been irregularlygranted, and if it had been intended to abandonthe tradition an express provision would have beenmade in the Convention to that effect. The silenceof the Convention on this subject, the Court held,implied that it was intended to leave the adjust-ment of the consequences of such situations to de-cisions inspired by considerations of convenienceor simple political expediency.

The Court recalled that in its Judgment of 20November 1950 it had pointed out that, in prin-ciple, asylum cannot be opposed to the operationof justice, and that the safety which arises out ofasylum cannot be construed as a protection againstthe regular application of the laws and against thejurisdiction of legally constituted tribunals. But,the Court stated, it would be an entirely differentthing to say that the State granting an irregularasylum is obliged to surrender the refugee to thelocal authorities. Such an obligation to render posi-tive assistance to these authorities in their prosecu-tion of a political refugee would far exceed theCourt's findings and could not be recognizedwithout an express provision to that effect in the

3

I.C.J. Reports 1951, p. 71.

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Havana Convention. In the Court's opinion, there-fore, the Havana Convention did not justify theview that the obligation incumbent on a State toterminate an asylum irregularly granted to apolitical offender imposed a duty on that State tosurrender the person to whom asylum had beengranted.

As regards Haya de la Torre, the Court in itsJudgment of 20 November had found that it hadnot been proved that the acts of which he wasaccused before asylum was granted constitutedcommon crimes. On the basis of article 2, para-graph 2, relating to political offenders, it had heldthat the asylum had not been granted in con-formity with the Havana Convention. So far asthe question of surrender was concerned, theCourt considered, therefore, that the refugee mustbe treated as a person accused of a political of-fence. It concluded that Colombia was under noobligation to surrender Haya de la Torre to thePeruvian authorities.

Finally, the Court examined the Peruvian sub-missions, which Colombia asked it to dismiss, con-cerning the termination of the asylum. The Courtstated that its Judgment of 20 November declar-ing that the asylum was irregularly granted en-tailed a legal consequence, namely, that of puttingan end to the illegal situation by terminating theasylum. Peru was therefore legally entitled toclaim that the asylum should cease. However, Peruhad added to its submission a demand that theasylum should cease "in order that Peruvian jus-tice may resume its normal course which has beensuspended." This addition, the Court held, ap-peared to involve, indirectly, a claim for the sur-render of the refugee, and could not be accepted.

The Court therefore concluded that the asylumhad to cease, but that Colombia was under noobligation to bring this about by surrendering therefugee to the Peruvian authorities. It held thatthere was no contradiction between these two

findings, since surrender was not the only way ofterminating asylum.

The Court declared that, having defined, inaccordance with the Havana Convention, the legalrelations between the parties with regard to thematters referred to it, it had completed its task. Itwas unable to give any practical advice as to thevarious courses which might be followed with aview to terminating the asylum since, by doing so,it would depart from its judicial function. "It canbe assumed," it said, "that the parties, now thattheir mutual legal relations have been made clear,will be able to find a practical and satisfactorysolution by seeking guidance from those consider-ations of courtesy and good-neighbourliness which,in matters of asylum, have always held a promi-nent place in the relations between the LatinAmerican republics."

In the operative part of its Judgment of 13June 1951,4 therefore, the Court unanimouslyrejected the parties' submissions asking it to makea choice as to the manner of giving effect to theJudgment of 20 November 1950. It found unani-mously that the asylum granted to Victor RaulHaya de la Torre on 3-4 January 1949, and main-tained since that time, ought to have ceased afterthe delivery of the Judgment of 20 November1950 and should terminate. By 13 votes to 1, itdeclared that Colombia was under no obligationto surrender Haya de la Torre to the Peruvianauthorities.

Alayza y Paz Soldán, Peruvian judge ad hoc,.attached to the Judgment a declaration explainingthat if the Court had stated that Colombia wasunder no obligation "as the sole means of exercis-ing the Judgment" to surrender the refugee toPeru, he would have been in a position to concurin the opinion of the majority of the Court. Hewas prevented from so doing, he said, by thebrevity of the sentence employed which might bemisunderstood.

B. THE ANGLO-NORWEGIAN FISHERIES CASE

On 28 September 1949, the United Kingdomfiled an Application instituting proceedings beforethe Court against Norway to decide on the validityor otherwise, under international law, of the linesof delimitation of the Norwegian fisheries zonelaid down in 1935 and amended in 1937. TheApplication referred to the declarations by bothparties accepting the Court's compulsory juris-diction.

The United Kingdom in its Application askedthe Court:

"(a) to declare the principles of international law tobe applied in defining the base-lines [the lines along theNorwegian coasts from which the territorial waters wereto be measured], by reference to which the NorwegianGovernment is entitled to delimit a fisheries zone,extending to seaward 4 sea miles from those lines and

4 I.C.J. Reports 1951, p. 71.


exclusively reserved for its own nationals, and to definethe said base-lines in so far as it appears necessary, inthe light of the arguments of the Parties, in order toavoid further legal differences between them;

"(b) to award damages to the Government of theUnited Kingdom in respect of all interferences by theNorwegian authorities with British fishing vessels out-side the zone which, in accordance with the Court'sdecision under (a), the Norwegian Government isentitled to reserve for its nationals."

The Application was notified to the Statesentitled to appear before the Court.

The pleadings were filed within the extendedtime limits fixed by the Court's Orders. On 24September 1951, the Court, applying article 44,paragraph 3, of its Rules, at the instance of theNorwegian Government and with the agreementof the United Kingdom Government, authorizedthe pleadings to be made public.

The case was ready for hearing on 30 April1951, and the oral proceedings took place between25 September and 29 October 1951. In the courseof the hearings the Court heard Sir Eric Beckett,Agent, Sir Frank Soskice, Mr. R. O. Wilberforceand Professor C. H. M. Waldock, Counsel, onbehalf of the United Kingdom Government; andMr. Sven Arntzen, Agent and Counsel, and Pro-fessor Maurice Bourquin, Counsel, on behalf ofthe Government of Norway. In addition, technicalexplanations were given on behalf of the UnitedKingdom Government by Commander R. H.Kennedy.

The United Kingdom submitted to the Courtthirteen principles which it sought to have theCourt acknowledge as being decisive in determin-ing the maritime limits which Norway was en-titled to enforce as against the United Kingdom.Norway requested the Court to adjudge and de-clare that the delimitation of the fisheries zonefixed by the Norwegian Royal Decree of 12 July1935 was not contrary to international law.

1. Judgment of the Court

In its Judgment,5 delivered on 18 December1951, the Court outlined the history leading up tothe case.

Beginning in 1906, British fishing vessels,trawlers equipped with improved and powerfulgear, appeared in the coastal waters off Norway.The local population became perturbed, and meas-ures were taken by the Norwegian Government toprohibit fishing by foreigners in certain areas. In1911 the first seizures of a British trawler underthese measures took place; others being seized insubsequent years. From time to time, the two

Governments entered into negotiations on theseseizures and on their respective rights in the Nor-wegian coastal waters.

On 12 July 1935, a Norwegian Royal Decreewas enacted delimiting the Norwegian fisherieszone north of 66°28.8' North latitude. TheUnited Kingdom made urgent representations inOslo. Pending the result of the negotiations, theNorwegian Government made it known that Nor-wegian fishery patrol vessels would deal lenientlywith foreign vessels fishing a certain distancewithin the fishing limits. In 1948, since no agree-ment had been reached between the two Govern-ments, the Norwegian Government abandoned itslenient enforcement of the 1935 Decree; incidentsthen became more and more frequent. A consider-able number of British trawlers were arrested andcondemned. It was then that the United Kingdominstituted the present proceedings.

The Court observed that, although the July1935 Decree referred to the Norwegian fisherieszone and did not specifically mention the terri-torial sea, there could be no doubt that the zonedelimited by this Decree was none other than thesea area which Norway considered to be her terri-torial sea; that is, the area over which Norwayhad sovereignty. The Court also remarked thatthe extent of Norway's territorial sea was not thesubject of the present dispute, since the four-milelimit claimed by Norway was acknowledged bythe United Kingdom in the course of the proceed-ings. The point at issue was the line from whichthe four miles were to be measured, which in turndetermined the extent of the area over whichNorway had sovereignty.

The Court stated that it could not, in keepingwith the suggestion of the United Kingdom, de-liver a judgment which would confine itself toadjudicating the principles submitted by theUnited Kingdom, although these were elementswhich might be taken into account only in so faras they would appear to be relevant for decidingthe sole question in the dispute, namely, the valid-ity or otherwise under international law of thelines of delimitation laid down by the 1935Decree.

The Court noted the very distinctive configura-tion of the Norwegian coastline which was at thecrux of the dispute. In addition to the mainland,this coastline consisted of the "skjaergaard" (liter-ally, rock rampart), made up of islands, islets,rocks and reefs. The 1,500-kilometre coast wasvery broken along its whole length, constantly

5 I.C.J. Reports 1951, p. 116.

Legal Questions 803

opening out into indentations often penetratingfor great distances inland, sometimes as much as75 sea miles. Thus, the coast of the mainland didnot constitute, as it did in practically all othercountries, a clear dividing line between land andsea. The Court observed that what mattered, whatreally constituted the Norwegian coast line, wasthe outer line of the "skjaergaard".

The United Kingdom maintained that in meas-uring the territorial sea the base-line should below-water mark on permanently dry land whichwas part of Norwegian territory, or the properclosing line of Norwegian internal waters. TheCourt decided that since the Norwegian mainlandwas bordered in its western sector by the "skjaer-gaard" which constituted a whole with the main-land it was the outer line of the "skjaergaard"which had to be taken into account in delimitingthe belt of Norwegian territorial waters.

The Court observed that the simplest methodof measurement in applying the low-water markrule, that of drawing the outer limit of the belt ofterritorial waters by following the coast in all itssinuosities, known as "tracé parallèle", could notbe applied to so irregular a coast as that of Nor-way. The United Kingdom had initially urgedthis method of tracé parallèle, and thereafter sub-stituted the courbe tangente (envelopes of arcs ofcircles), which the Court observed also had thepurpose of applying the principle that the belt ofterritorial waters must follow the line of the coast.Since the United Kingdom had admitted that thismethod was not obligatory by law, the Court didnot deal with the United Kingdom's conclusionsin so far as they were based on it.

The Court noted that, in order to apply thelow-water mark principle, several States followedthe straight base-lines method and had not en-countered objections of principle by other States.This method consisted of selecting appropriatepoints on the low-water mark and drawingstraight lines between them. This, it noted, hadbeen done, not only in the case of well-definedbays, but also in cases of minor curvatures of thecoast line where it was solely a question of givinga simpler form to the belt of territorial waters.

The United Kingdom contended that Norwaymight draw straight lines only across bays. TheCourt was unable to share this view, asserting thatif the belt of territorial waters must follow theouter line of the "skjaergaard", and if the methodof straight base-lines must be admitted in certaincases, there was no valid reason to draw them onlyacross bays and not also to draw them between

islands, islets and rocks, across the sea areas separ-ating them, even when such areas did not fallwithin the conception of a bay. It was sufficientthat they should be situated between the islandformations of the "skjaergaard".

The United Kingdom observed that Norwaywas entitled, on historic grounds, to claim asinternal waters all fjords and sunds which hadthe character of a bay, whether the closing line ofthe indentation was more or less than ten seamiles long. Norway was also entitled on historicgrounds, in the United Kingdom's opinion, toclaim as Norwegian territorial waters all thewaters of the fjords and sunds which have thecharacter of legal straits, and, either as internal oras territorial waters, the areas of water lyingbetween the island fringe and the mainland. These"historic waters" would, in the United Kingdom'sview, constitute an exception and a derogationfrom the ordinary rules of international law,which, that country apparently maintained, per-mitted a closing line to be drawn across a bayonly if it was not more than ten miles long.

The Court deemed it necessary to point outthat although the ten-mile rule had been adoptedby certain States it had not acquired the authorityof a general rule of international law. In anyevent, the Court held, the ten-mile rule appearedto be inapplicable as against Norway, inasmuch asthat country always opposed any attempt to applyit to the Norwegian coast.

The United Kingdom maintained, on theanalogy of the alleged ten-mile rule regardingbays, that the length of the straight lines drawnacross the waters lying between the various for-mations of the "skjaergaard" must not exceed tenmiles. The Court held that in this connexion thepractice of States does not justify the formulationof any general rule of law.

The United Kingdom maintained that thewaters situated between the base-lines and theNorwegian mainland belonged to Norway on his-toric grounds, but that they fell into two cate-gories: internal waters (i.e. those falling withinthe conception of a bay) and territorial waters(i.e. those having the character of legal straits).Thus the United Kingdom argued that the watersfollowed by the navigational route known as theIndreleia were territorial waters, having conse-quences for the determination of the territorialwaters at the end of this waterway considered as amaritime strait. The Court could not accept thisview which sought to give the Indreleia a statusdifferent from that of the other waters included inthe "skjaergaard".


The Court noted that the delimitation of seaareas had always had an international aspect; itcould be dependent merely upon the will of thecoastal State as expressed in its municipal law.The validity of the delimitations of the coastalStates with regard to other States depended uponinternational law. The Court referred to threecriteria which could provide courts with an ade-quate basis for decisions on the validity ofdelimitations:

(1) the drawing of base-lines must not depart toany appreciable extent from the general direction of thecoast;

(2) sea areas lying within base-lines had to be suffi-ciently closely linked to the land domain to be subjectto the regime of internal waters;

(3) certain economic interests peculiar to a region,the reality and importance of which are clearly evidencedby a long usage, had to be considered.

The Court then examined the historical basisfor the Norwegian claims to its coastal watersdating from the Royal Decree of 22 February1812. The Court found that the Norwegian sys-tem of delimitation, now being challenged by theUnited Kingdom, was consistently applied byNorwegian authorities and that it had encoun-tered no opposition on the part of other Statesuntil the time when the dispute arose.

The United Kingdom argued that the Nor-wegian system of delimitation was not known toit and that the system therefore lacked the noto-riety essential to provide the basis for an historictitle enforceable against it. The Court, consideringthat the United Kingdom was a maritime powertraditionally concerned with the law of the seaand particularly to defend the freedom of the seas,was unable to accept this view.

The Court concluded that the method ofstraight lines established in the Norwegian sys-tem was imposed by the peculiar geography ofthe Norwegian coast; that even before the disputearose, this method had been consolidated by aconstant and sufficiently long practice, in the faceof which the attitude of governments bore witnessto the fact that they did not consider it to be con-trary to international law.

The Court concluded that the Decree of 12 July1935 conformed in its drawing of base-lines tothe traditional Norwegian system.

The United Kingdom asserted that certain ofthe base-lines adopted by the Decree were contraryto the principles stated by the Court as governingany delimitation of the territorial sea. The Courtexamined, in some detail, certain of the base-lineswhich had been criticized to determine whether

they were really without justification, and con-cluded that the base-lines in these specific caseswere justified as drawn.

The Court in its Judgment of 18 December1951,6 therefore found:

"by ten votes to two,"that the method employed for the delimitation of

the fisheries zone by the Royal Norwegian Decree ofJuly 12th, 1935, is not contrary to international law;and

"by eight votes to four,"that the base-lines fixed by the said Decree in appli-

cation of this method are not contrary to internationallaw."

Judge Hackworth declared that he concurred inthe operative part of the Judgment, but empha-sized that he did so because he considered theNorwegian Government had proved a historictitle to the disputed areas of water.

Judges Alvarez and Hsu Mo appended to theJudgment statements of their separate opinionsand Judges Sir Arnold McNair and Read appendedstatements of their dissenting opinions.

2. Individual Opinions

Judge Alvarez, in his individual opinion, notedthat it was only partly true to state that the pres-ent Court was a continuation of the former Per-manent Court of International Justice and that,consequently, the International Court was boundto follow the methods and jurisprudence of theformer Court. The World War had brought rapidand prolonged changes in international life andgreatly affected the law of nations. It now hap-pened with greater frequency than formerly, hestated, that, on a given topic, no applicable pre-cepts were to be found, or that those which didexist presented lacunae or appeared to be obsolete.In all such cases, the Court had to develop the lawof nations; it had to remedy its shortcomings,adapt existing principles to these new conditionsand, even if no principles existed, create prin-ciples in conformity with such conditions.

Judge Alvarez stated that the starting point inconsidering the international law applicable to thedispute was the fact that, for the traditional indi-vidualistic regime on which social life has hithertobeen founded, there was being substituted moreand more a new regime, a regime of interdepend-ence, and that consequently the law of social inter-dependence was taking the place of the old indi-vidualistic law. He listed the principles governingthe case, including the following:

6

I.C.J. Reports 1951, p. 116.

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(1) The variations in geography and economic con-ditions of States did not make it possible to lay downuniform rules applicable to all governing the extent ofthe territorial sea and the way in which it was to bereckoned.

(2) Each State might determine the extent of itsterritorial sea and the way it was to be reckoned, pro-vided: (a) this was reasonable, (b) the State was cap-able of exercising supervision of the zone, and (c) theState did not infringe the rights acquired by other States,or harm general interests. A State must indicate thereasons for fixing the breadth of its territorial sea.

(3) States had both rights and duties with respectto their territorial sea.

(4) States might alter the extent of the territorialsea provided they furnished adequate grounds to justifythe change.

(5) States might fix a greater or lesser area beyondtheir territorial sea over which they might reserve forthemselves certain rights such as customs and policerights.

(6) These rights were of great weight if establishedby a group of States, and especially by all the States of acontinent.

(7) States might raise objection to another State'sdecision on the extent of its territorial sea; such disputesmust be settled in accordance with the Charter.

(8) Similarly, for the great bays and straits therecould be no uniform rules.

On the basis of these principles, Judge Alvarezarrived at the conclusion reached by the majorityof the Court, that the Norwegian Decree of 1935was not contrary to any express provisions ofinternational law, or general principles of inter-national law.

Judge Hsu Mo, in his individual opinion,agreed with the Court that the method of straightlines used in the Norwegian Decree was not con-trary to international law. He regretted, however,that he was unable to share the view of the Courtthat all the straight base-lines fixed under thatDecree were in conformity with the principles ofinternational law.

He emphasized that the method of delimitingterritorial waters adopted by Norway, by drawingstraight lines between point and point, island andisland, constituted a deviation from what hebelieved to be a general rule of international law,namely, that, apart from cases of bays and islands,the belt of the territorial sea should be measured,in principle, from the line of the coast at low tide.Accordingly, while international law permitteddeviations from the general rule, in testing thevalidity of the base-lines actually drawn by Nor-way, the degree of deviation from the general rulehad to be considered. The examination of eachbase-line could not be undertaken in total disre-gard of the coast line. Norway should not inter-pret the expression "to conform to the general

direction of the coast" so liberally that the coastline was almost completely ignored.

He found two obvious cases in which the base-line could not be considered as having been justi-fiably drawn, that affecting Svaerholthavet andLopphavet. He observed, also, that in both theseinstances Norway had not succeeded in establish-ing historic title to the waters in question. Accord-ingly, he concluded that neither by the test ofconformity with the general direction of the coast,nor on historical grounds, could the two base-linesdrawn be considered as being justifiable under theprinciples of international law.

3. Dissenting Opinions

Judge Sir Arnold McNair, in his dissentingopinion, summarized the relevant part of the lawof territorial waters as follows:

(1) To every State whose land territory was at anyplace washed by the sea, international law attached acorresponding portion of maritime territory consistingof what the law called territorial waters.(2) While the actual delimitation of the frontiersof territorial waters lay within the competence of eachState because each State knew its own coast best, yet theprinciples followed in carrying out this delimitationwere within the domain of international law and notwithin the discretion of each State.

(3) The method of delimiting territorial waterswas an objective one and a State could not manipulateits maritime frontier in order to give effect to its eco-nomic and other social interests. The overwhelming con-sensus among maritime States was that the base-line ofterritorial waters was a line which followed the coastlinealong low-water mark.

(4) The calculation of the extent of territorialwaters from the land was the normal and natural thingto do; its calculation from a line drawn on the waterwas abnormal.

(5) An exception existed in the case of those inden-tations which possessed such a configuration, both as totheir depth and as to the width between their headlands,as to constitute landlocked waters, whether called "bays"or by whatever name. Where the headlands were soclose that the bays could really be described as land-locked, the maritime belt was measured from a closingline drawn across it between its headlands. In practice, adistance between headlands somewhat longer than twicethe width of territorial waters was often recognized asjustifying the closing of a bay. It could not yet be saidthat a closing line of ten miles formed part of a rule ofcustomary international law. The other category of baywhose headlands might be joined for the purpose offencing off the waters on the landward side as internalwaters was the historic bay, and to constitute an historicbay it did not suffice merely to claim a bay as such; evi-dence was required of a long and consistent assertion ofdominion over the bay and of the right to excludeforeign vessels except on permission.

Judge McNair was unable to reconcile the Nor-wegian Decree of 1935 with the conception of


territorial waters as recognized by internationallaw, because:

(1) the delimitation was inspired by such factors asthe policy of protecting the economic and other socialinterests of the coastal State;

( 2 ) the limit of four miles was measured not fromland but from imaginary lines drawn in the sea;

(3 ) the Decree, so far from attempting to delimitthe belt or bande of maritime territory in conformitywith international law, comprised within its limits areasof constantly varying distances from the outer line tothe land and bearing little resemblance to a belt orbande.

With regard to the assertions that the UnitedKingdom was precluded from objecting to theNorwegian system embodied in the Decree byprevious acquiescence in the system, he concluded,after examining the historical records, that thesystem in reality only dated from 1935. This wastoo short an interval to provide an adequate testof acquiescence.

Examining the claim to waters based upon his-toric title, he found the evidence of such titleinadequate and unconvincing.

Accordingly, Judge McNair concluded that thedelimitation of territorial waters made by theNorwegian Decree of 1935 was in conflict withinternational law, and that its effect would be toinjure the principle of the freedom of the seas andto encourage further encroachments upon the highseas by coastal States.

In his dissenting opinion, Judge Read statedthat, while he agreed with the majority of theCourt in accepting the Norwegian contentions asregards the inland waterway called the Indreleiaand as regards the Vestfjord, he was unable toconcur in parts of the Judgment which related toother sections of the coast. He found that theestablishment of certain of the base-lines by theRoyal Norwegian Decree of 1935 was not in con-formity with international law. He had no doubtof the existence of a rule of international lawwhich required the measurement of territorialwaters from low-tide mark.

After reviewing the development of the rulesof international law governing the sea, Judge Readstated that he found it difficult to justify the Nor-wegian system of measurement of territorialwaters as an exercise of powers inherent in Statesovereignty in conformity with those rules. Bymeasuring from long straight base-lines, Norway,he considered, was extending its domain in a waywhich purported to exclude all other States fromareas of the high seas, depriving other States oftheir rights and privileges. He concluded that thepower to delimit its maritime domain given to acoastal State by international law did not permit itto go beyond the territorial limits of its existingsovereignty, if such a course impaired rights orprivileges conferred by international law on otherStates.

After reviewing Norwegian historical practicein delimiting its territorial sea, as well as the prac-tice of other States, Judge Read concluded that therules of international law which, under comparablecircumstances, were applicable to other countriesin other parts of the world had to be applied to thecoast of Norway.

Examining the Norwegian claims as based uponhistoric title to waters, Judge Read held that theNorwegian system was not actually applied to thedisputed areas of sea until after 11 August 1931, adate long after the dispute had arisen, and, accord-ingly, he concluded that the Norwegian contentionfailed.

Thereupon, he examined whether the Norwegiansystem could be treated as a doctrine of specialinternational law recognized by the interna-tional community. He concluded from the his-torical record that it had not been proved that theNorwegian system was made known to the worldin time and in such a manner that other nations,including the United Kingdom, knew about it ormust be assumed to have had constructive knowl-edge.

In view of these considerations, Judge Read con-cluded that the Norwegian Decree was not in con-formity with international law.

C. ANGLO-IRANIAN OIL COMPANY CASE

1. Proceedings before the InternationalCourt of Justice

a. UNITED KINGDOM APPLICATION

On 26 May 1951 the United Kingdom addressedan Application to the Court instituting proceed-

ings against Iran in the Anglo-Iranian Oil Com-pany Case.

The Application reviewed the terms of theAgreement concluded on 29 May 1933 betweenthe Government of Iran and the Anglo-IranianOil Company and the course of the dispute whichhad arisen out of the Iranian Oil Nationalization

Legal Questions 807

Act of 1 May 1951. The United Kingdom sub-mitted that the Court had jurisdiction to determinethe dispute between itself and Iran on the groundthat it was covered by Iran's declaration depositedwith the Secretariat of the League of Nations on19 September 1932 accepting the compulsory jur-isdiction of the Permanent Court of InternationalJustice.7 Alternatively, the United Kingdom stated,it expected that Iran as a Member of the UnitedNations, would agree to appear before the Courtvoluntarily.

The United Kingdom Application asked theCourt to declare that Iran was under an obligationto submit its dispute with the Anglo-Iranian OilCompany to arbitration, in accordance with article22 of the 1933 Convention8, and to accept andcarry out any award issued as a result of such arbi-tration.

Alternatively, the Court was asked to declare:(1) that the putting into effect of the Oil Nationali-

zation Act of 1 May 1951 in so far as it purported toeffect a unilateral annulment or alteration of the termsof the 1933 Convention contrary to articles 21 and 26of the Convention9 would be an act contrary to inter-national law for which Iran would be internationallyresponsible;

( 2 ) that article 22 of the Convention continued tobe legally binding on Iran and that by denying theCompany the exclusive legal remedy provided in theConvention, Iran had committed a denial of justice con-trary to international law;

(3) that the Convention could not lawfully be an-nulled or its terms altered by Iran except by agreementwith the Company or in accordance with article 26 ofthe Convention.

The Court was asked to adjudge that Iran shouldgive full satisfaction for all acts committed in rela-tion to the Company which were contrary to inter-national law or the 1933 Convention and to de-termine the manner of such satisfaction and in-demnity.

The United Kingdom reserved the right to re-quest the Court to indicate, in accordance withArticle 41 of the Court's Statute, provisional meas-ures to protect its rights so that its national, theAnglo-Iranian Oil Company, should enjoy therights to which it was entitled under the terms ofthe 1933 Convention.

b. THE QUESTION OF INTERIM MEASURES

On 22 June, the United Kingdom requested theCourt to indicate interim measures of protectionin the case in accordance with Article 41 of theCourt's Statute and article 61 of its Rules. TheUnited Kingdom's request asked, inter alia, that:

(1) the Anglo-Iranian Oil Company should be per-mitted to continue without hindrance the operations it

had been carrying on prior to the Nationalization Act of1 May 1951;

(2) its property and the monies it earned should notbe sequestered or seized;

(3) the Iranian Government should ensure that nosteps were taken capable of prejudicing the execution ofa decision by the Court on the merits of the case infavour of the United Kingdom, should the Court rendersuch a decision;

(4) the Iranian and United Kingdom Governmentsshould ensure that no steps were taken capable ofaggravating the dispute and, in particular, the IranianGovernment should abstain from propaganda calculatedto inflame Iranian opinion against the Company and theUnited Kingdom.

The text of the request was transmitted to theIranian Government and to the Secretary-General

7 The Iranian (Persian) declaration was signed on 2

October 1930, and its ratification was deposited on 19September 1932. It was effective for a period of sixyears and thereafter until notification was given of itsabrogation.

Its conditions were that it was effective without spe-cial agreement in relation to any other State acceptingthe same obligation "in any disputes arising after theratification of the present declaration with regard tosituations or facts relating directly or indirectly to theapplication of treaties or conventions accepted by Persiaand subsequent to the ratification of this declaration,"with the exception of:

(1) disputes relating to the territorial status of Per-sia, including those concerning the rights of sovereigntyof Persia over its islands and ports;

(2) disputes in regard to which the parties haveagreed or shall agree to have recourse to some othermethod of peaceful settlement;

(3) disputes with regard to questions which, by inter-national law, fall exclusively within the jurisdiction ofPersia;

(4) subject to the condition that Persia reserves theright to require that proceedings in the Court shall besuspended in respect of any dispute which has been sub-mitted to the Council of the League of Nations. For textof the declaration, see I.C.J. Yearbook 1946-1947, p.211.

8 The first paragraph of article 22 reads as follows:"A. Any differences between the parties of any naturewhatever and in particular any differences arising out ofthe interpretation of this Agreement and of the rightsand obligations therein contained as well as any differ-ences of opinion which may arise relative to questionsfor the settlement of which, by the terms of this Agree-ment, the agreement of both parties is necessary, shallbe settled by arbitration." The remaining paragraphsdescribe the machinery for arbitration.

9 The relevant paragraph of article 21 reads asfollows:

"This Concession shall not be annulled by the Gov-ernment and the terms therein contained shall not bealtered either by general or special legislation in thefuture, or by administrative measures or any other actswhatever of the executive authorities."

Article 26 states that the concession is granted to theCompany for a period ending 31 December 1993 andthat it "can only come to an end in the case that theCompany should surrender the Concession . . . or in thecase that the Arbitration Court should declare the Con-cession annulled as a consequence of default of theCompany in the performance of the present Agreement."


and the Members of the United Nations and toother States entitled to appear before the Court.

On 23 June, the President of the Court sent amessage to the Prime Minister and the Ministerfor Foreign Affairs of Iran suggesting that instruc-tions be given "to avoid all measures which mightrender impossible or difficult the execution of anyjudgment which the Court might subsequentlygive and to ensure that no action is taken whichmight aggravate the dispute submitted to theCourt. Any measures taken by the Imperial IranianGovernment for this purpose", it was stated,"would in no way prejudice such representations"as that Government may deem it appropriate tomake to the Court either during the proceedingson interim measures or on the United KingdomApplication.

The Iranian Minister for Foreign Affairs repliedto this message on 29 June and a final text of thereply was delivered to the President of the Courtthe following day. It expressed the hope "that theCourt would declare that the case is not within itsjurisdiction because of the legal incompetence ofthe complainant and because of the fact that theexercise of the right of sovereignty is not subjectto complaint. Under these circumstances, the re-quest for interim measures of protection wouldnaturally be rejected."

A public hearing was held at The Hague on30 June, when the Court heard a statement by theAgent of the United Kingdom Government. TheIranian Government was not represented at thishearing.

In an Order of 5 July 1951, the Court, pendingits final decision on the merits of the case, indicatedthe following provisional measures10 to apply onthe basis of reciprocal observance:

"1. That the Iranian Government and the UnitedKingdom Government should each ensure that no actionis taken which might prejudice the rights of the otherParty in respect of the carrying out of any decision onthe merits which the Court may subsequently render;

"2. That the Iranian Government and the UnitedKingdom Government should each ensure that no actionof any kind is taken which might aggravate or extendthe dispute submitted to the Court;

"3. That the Iranian Government and the UnitedKingdom Government should each ensure that no meas-ure of any kind should be taken designed to hinder thecarrying on of the industrial and commercial operationsof the Anglo-Iranian Oil Company, Limited, as theywere carried on prior to May 1st, 1951;

"4. That the Company's operations in Iran shouldcontinue under the direction of its management as itwas constituted prior to May 1st, 1951, subject to suchmodifications as may be brought about by agreementwith the Board of Supervision referred to in para-graph 5;

"5. That, in order to ensure the full effect of thepreceding provisions, which in any case retain their ownauthority, there should be established by agreementbetween the Iranian Government and the United King-dom Government a Board to be known as the Board ofSupervision composed of two Members appointed byeach of the said Governments and a fifth Member, whoshould be a national of a third State and should bechosen by agreement between these Governments, or, indefault of such agreement, and upon the joint requestof the Parties, by the President of the Court.

"The Board will have the duty of ensuring that theCompany's operations are carried on in accordance withthe provisions above set forth. It will, inter alia, havethe duty of auditing the revenue and expenses and ofensuring that all revenue in excess of the sums requiredto be paid in the course of the normal carrying on ofthe operations and the other normal expenses incurredby the Anglo-Iranian Oil Company, Limited, are paidinto accounts at banks to be selected by the Board onthe undertaking of such banks not to dispose of suchfunds except in accordance with the decisions of theCourt or the agreement of the Parties."

The Court, in its Order, referred to the follow-ing principal reasons for its adoption:

(1) That in the Application instituting proceedings,the United Kingdom Government had adopted thecause of the British Company and was proceeding invirtue of the right of "diplomatic protection";

(2) That the complaint made in the United KingdomApplication was of an alleged violation of internationallaw by the breach of the Agreement for a concession of29 April 1933 and by a denial of justice resulting fromthe refusal of the Iranian Government to accept arbitra-tion in accordance with that Agreement, and that itcould not be accepted a priori that a claim based onsuch a complaint fell completely outside the scope ofinternational jurisdiction;

(3) That these considerations sufficed to empower theCourt to entertain the request for interim measures ofprotection;

(4) That the indication of such measures in no wayprejudged the question of the Court's jurisdiction onthe merits and left unaffected the right of the respondentto submit arguments against such jurisdiction;

(5) That the object of interim measures was to pre-serve the respective rights of the parties pending theCourt's decision;

(6) That it followed from the terms of the Statuteand the Rules that the Court must be concerned topreserve by such interim measures the rights whichmight be subsequently adjudged to belong to either oneof the parties;

(7) That the existing state of affairs justified the in-dication of interim measures of protection.

Judges Winiarski and Badawi Pasha, declaringthat they were unable to concur in the Court'sOrder, appended a joint statement of their dissent-ing opinion.11

They held that the question of interim measuresof protection was linked, for the Court, with the

10 I.C.J. Reports 1951, p. 89.11 I.C.J. Reports 1951, p. 96.

Legal Questions 809

question of jurisdiction, and that the Court hadpower to indicate such measures only if it held,even if only provisionally, that it was competentto hear the case on its merits. Since interimmeasures of protection were exceptional and lia-ble to be regarded as a scarcely tolerable inter-ference in the affairs of a sovereign State, the Courtshould not indicate them unless it considered thatits competence, if challenged, appeared neverthe-less reasonably probable. If there were weightyarguments in favour of the challenged jurisdictionsuch interim measures could be indicated but theycould not, in the opinion of the dissenting judges,if there existed serious doubts or weighty argu-ments against the Court's jurisdiction.

The present case, moreover, was not one inwhich the objection to the jurisdiction was regard-ed as a mere ground of defence, in which the partyoverruled in its objection continued to take partin the proceedings. Iran had affirmed that it hadnot accepted the jurisdiction of the Court and wasin no way bound in law, and had refused to appearbefore the Court, giving its reasons for this refusal.

The Court ought therefore to decide, in a sum-mary way and provisionally in order to arrive at adecision on interim measures, which conclusion itwas the more likely to reach on the question of itsjurisdiction.

These judges stated, further, that a summaryconsideration of the United Kingdom grounds foralleging the Court's jurisdiction led to the pro-visional conclusion that if Iran did not voluntarilyaccept the Court's jurisdiction in the case, theCourt would be compelled to hold itself withoutjurisdiction in this case, and that, in these circum-stances, interim measures of protection should nothave been indicated.

c. IRANIAN WITHDRAWAL OF ACCEPTANCE OFCOMPULSORY JURISDICTION

The Minister of Foreign Affairs of Iran, on 9July, sent a communication (United Nations Reg-istry Number 46/04(8) ) to the Secretary-Generalstating, among other things, that the matter didnot come within the scope of Iran's acceptance ofthe compulsory jurisdiction of the Permanent Courtof International Justice, since it was a matter ex-clusively within Iran's domestic jurisdiction, relat-ing to a concession, which had been imposedthrough the creation of special circumstances butwhich, even if valid, was one granted by the Iran-ian Government to a private legal person.

In conformity with the right to self-determina-tion, as proclaimed in the United Nations Charter,and with a view to liberating themselves from a

usurping company which had long served as aninstrument of interference in Iran's internal affairs,the Government and people of Iran had proclaimedthe nationalization of the oil industry. Each coun-try had the incontestable right to nationalize anyof its industries.

The Court, it was stated, was not competent togive a ruling in this alleged dispute: Iran had notconsented to the submission of the matter to theCourt; the Charter did not authorize the Court toassume jurisdiction in this case; there were nointernational treaties or conventions conferringsuch jurisdiction on the Court; and the matter didnot come within the scope of Iran's acceptance ofthe Court's compulsory jurisdiction. Iran had drawnthese matters to the Court's attention.

The Court had, however, impaired the confi-dence of Iran in international justice, in particularby its Order of 5 July 1951.

(1) Before taking any decision the Court shouldhave declared its lack of jurisdiction in the case.

(2) Contrary to the Court's Rules, only five days hadbeen allowed for the Iranian reply to the United King-dom request for measures of protection.

(3) The consequence of the Court's Order of 5 July1951, if it were enforceable, would be that Iran's rightof sovereignty in a solely domestic matter was abolishedas the result of a complaint which the United Kingdomwas not legally competent to make and which was notwithin the Court's jurisdiction. The decision would in-volve the establishment of a new system of capitulationsfor the benefit of the nationals of the Great Powers tothe detriment of those of weak and small countries. Itwas against the Charter provisions concerning the sov-ereign equality of Members of the United Nations.

(4) By its Order, the Court had also acted contraryto the Charter provision stating that the United Nationsshould not intervene in matters within the domestic jur-isdiction of any State.

(5) "By a crowning injustice", the Court had ex-ceeded the United Kingdom demands in ordering theestablishment of a Board of Supervision to include twomembers appointed by the United Kingdom. This Order,if it were enforceable, would entitle the United Kingdomto intervene in Iran's internal affairs.

(6) The Court had also instructed this Board toensure that the Company's excess of revenue over ex-penses should be paid into selected banks. Even if theformer concession contract were still temporarily valid,certain sums, not disputed, would have to be paid tothe Iranian Government.

The judges, it was stated, might be under theimpression that, because Iran was in a difficultfinancial situation, the sequestration of its oilprofits and the designation of a distant time limitfor a decision on the substance of the case mightpersuade it to abandon its national aims.

In view of these considerations, Iran withdrewits declaration concerning acceptance of the Court's,compulsory jurisdiction.


d. TIME LIMITS FOR WRITTEN PROCEEDINGS

By an Order of 5 July 195112 the Court fixed thefollowing time limits for presentation of writtenproceedings: 3 September for the United King-dom Memorial and 3 December for the IranianCounter-Memorial. The United Kingdom having,on 16 August, requested an extension of the timelimit for the filing of the Memorial, the Court byan Order of 22 August 195113 postponed the timelimits to 10 October for the United KingdomMemorial and 10 January 1952 for the IranianCounter-Memorial. Iran having, on 17 December,requested an extension, the time limit for the pre-sentation of the Counter-Memorial was postponedby an Order of 20 December14 until 11 February1952.

e. UNITED KINGDOM MEMORIAL

In its Memorial, the United Kingdom asked theCourt to give a declaration and judgment that theputting into effect of the Iranian Oil Nationaliza-tion Act in so far as it purported to effect a uni-lateral annulment or alteration of the terms of the1933 Convention was an act contrary to interna-tional law and that the Convention could not bealtered except as a result of agreement with theCompany or according to the terms of the Con-vention (article 26) .

It asked the Court to rule that the Iranian Gov-ernment was bound within a period to be fixed bythe Court to restore the Company to the positionexisting prior to the Act and to abide by the termsof the Convention, including its article 22, provid-ing for arbitration of any differences. It furtherasked the Court to state that the Company was en-titled to compensation for loss and damage sufferedas a result of acts by the authorities of the IranianGovernment contrary to the provisions of the Con-vention and which had occurred between 1 Mayand the restoration to the Company of its formerposition. The amount of compensation should beassessed by the Arbitration Court provided inaccordance with article 22 of the Convention or insuch other manner as the Court would decide.

Alternatively, if the Court decided it should notgive judgment for restoration of the status quoante and for damages up to the time of such restor-ation, the United Kingdom asked for a judgmentthat the Iranian Government should pay the UnitedKingdom Government on behalf of the Company"in accordance with the principles with relationto expropriation which violate international law

accepted in international jurisprudence and formu-lated by the Permanent Court of InternationalJustice" compensation, which should include:

(1) the value of the undertaking expropriated andthe loss of future profits, that is, a sum correspondingto the value which would be represented by restorationin kind;

(2) damages for loss sustained which would not becovered by restitution in kind (or payment in place ofit).

The amount, it was proposed, should be assessedin a manner decided by the Court.

If the Court decided that the United Kingdomwas not entitled to a declaration and judgment inaccordance with any of the foregoing submissionsand that the Oil Nationalization Act of 1 Mayonly infringed international law in so far as itscompensation provisions were inadequate, then, itwas asked, the Court should declare that the pro-visions of the Act did not satisfy the requirementsof international law in regard to compensation. Itshould further declare that the amount of compen-sation should be decided by arbitration proceed-ings provided in article 22 of the Convention, andif Iran failed to agree to arbitration as providedtherein, the amount of compensation should bedetermined by the Court.

2. Complaint before the SecurityCouncil

On 28 September, the United Kingdom com-plained to the Security Council that the IranianGovernment had failed to comply with the provi-sional measures indicated by the Court, and askedthat the Council consider the situation arisingfrom this failure. It proposed a draft resolution(S/2358) which would refer, inter alia, to the or-der passed by the Government of Iran for the ex-pulsion of all the remaining British staff of theAnglo-Iranian Oil Company as being contrary tothe provisional measures indicated by the Court.Under the draft resolution, the Council would:

(1) express concern at the dangers inherent in thissituation and at the threat to peace and security whichmight be involved; (2 ) call on Iran to act in conformitywith the provisional measures and, in particular, to per-mit the continued residence at Abadan of the staffaffected by the expulsion orders, or its equivalent; and(3) request Iran to inform the Council of the stepstaken to carry out the resolution.

12

I.C.J. Reports 1951, p. 100.13 I.C.J. Reports 1951, p. 106.14

I.C.J. Reports 1951, p. 208.

Legal Questions 811

a. DISCUSSIONS ON INCLUSION OF THEITEM IN THE AGENDA

At the Council's 559th meeting on 1 October,the inclusion of the item in the agenda was op-posed by the representatives of the USSR andYugoslavia, who held that the matter was not with-in the Council's competence. The USSR representa-tive stated that such questions as the nationaliza-tion of its oil industry, the activities of foreignindustrial concerns and the presence of foreigncitizens on its territory were all within the domes-tic jurisdiction of Iran; discussion of the com-plaint would constitute an interference in Iran'sinternal affairs, contrary to Article 2, paragraph7, of the Charter, and would be a gross violationof the Iranian people's sovereignty.

The representative of Yugoslavia stated that theCouncil was not bound by the decision of theCourt on competence; besides, the Court's Ordermade it clear that it was not prejudging the ques-tion of jurisdiction and indicated grave doubt onthe point.

The representatives of China, Ecuador, France,India, the Netherlands, Turkey, the United King-dom and the United States spoke in favour of in-cluding the item in the agenda.

The representatives of China and India, whilereserving their positions on both the Council'scompetence and the substance of the complaint,considered that the item must be placed on theagenda to enable the Council to discuss the sub-ject in order to decide the question of competencewith all the facts before it.

The representatives of Ecuador and Turkey con-sidered that the Council could hardly refuse to con-sider any matter which a Member State felt con-tained a threat to international peace.

In the view of the United States representative,the question of whether the matter was withinIran's domestic jurisdiction depended on a consid-eration of the very substance of the matter. Clear-ly the dispute might lead to international dis-turbance, and it was important that the Councilshould place any such dispute on its agenda inorder to bring to bear upon the parties concernedthe restraints necessary to the carrying out of jus-tice while a case was pending. He added that theUnited States considered the Security Council com-petent to consider the dispute on its merits; theCouncil had the responsibility of considering anydispute or situation which might affect the main-tenance of international peace and security. Heconsidered that a decision on competence should

be taken after Iran had been invited to the Counciltable.

The representative of the Netherlands statedthat the Council had been dealing thus far withthe same problem which had confronted the Court,that of competence. The Court, which was thegreatest authority on matters of competence, had,by indicating interim measures, suggested its com-petence in the matter so far. There seemed, there-fore, to be no doubt of the competence of theCouncil.

The representative of France argued that thedivergence of views on the question of competenceindicated the need for a debate.

The representative of China stated that he couldnot agree with the United States view that thematter was one involving the Council's responsi-bility in matters of peace and security; the matterconcerned property, in regard to which no partywould resort to armed force in seeking a solution.

The representative of Yugoslavia suggested thatthe Government of Iran might be invited to par-ticipate in the debate not on the agenda item it-self but on whether the agenda should be adopted,a procedure which would be in the spirit of theCouncil's rules of procedure and the practice ofthe General Assembly.

The representative of the United Kingdomagreed that the question of competence could bedecided later. Regarding the statement of theUSSR representative, he recalled the statement ofthe four sponsoring Governments at the San Fran-cisco Conference, that an individual member alonecould not prevent the Council's consideration ofa question. He suggested that the finding of theCourt on interim measures, indicating the existenceof a case at least prima facie internationally ju-dicable, was binding on all Members. That finding,he said, gave rise to obligations under the Charterwhich it was the duty of the Council to uphold.As regards the Yugoslav suggestion, the UnitedKingdom representative argued that it would be anextremely bad precedent to invite non-membersto help the Council on procedural questions.

The Council decided to include the item in itsagenda by 9 votes to 2 (USSR and Yugoslavia).At the invitation of the President the representa-tive of Iran took his seat at the Council table.

b. UNITED KINGDOM STATEMENT ANDREVISED DRAFT RESOLUTION

During the discussions in the Council whichtook place between 1 and 19 October, the repre-sentative of the United Kingdom traced the his-


tory of the oil concessions from 1901 when a con-cession was first granted to W. K. D'Arcy. Underthe terms of that arrangement, certain amounts incash and shares and 16 per cent of the net profitswere to be paid to Iran. Iran's income varied withthe profits. During the slump of the early 'thirtieswhen Iran's income fell sharply, Iran declared theconcession cancelled. The United Kingdom tookthe matter to the League of Nations but, beforeit could be heard, a new Agreement was personallynegotiated with the Shah in 1933 which enabledIran to participate in the Company's profits duringgood years with protection during bad years by afixed payment per ton of oil. Article 22 of thatAgreement provided for arbitration when therewas a difference of opinion between the parties.The present Iranian Prime Minister, it was stated,was in the habit of alleging that the Agreementhad been concluded under duress. In 1949 some ofthe financial terms of the Agreement were revisedin favour of the Iranian Government in a Supple-mental Oil Agreement signed by the IranianFinance Minister, subject to ratification by theIranian Parliament (Majlis). The Agreementwould have meant an income for the years 1948-50of no less than £76.66 million instead of £38.67million. But the terms were never properly ex-plained to public or parliamentary opinion andthe Iranian Parliament did not ratify the Agree-ment. A campaign of nationalization was startedduring which the United Kingdom informed theIranian Government that under the 1933 Agree-ment the concession could not be terminated by anact such as nationalization. At the same time theCompany proposed negotiations for a new agree-ment on the basis of an equal share in the profits.On 10 March, Prime Minister Razmara was as-sassinated, three days after presenting to the MajlisOil Committee reports from Iranian experts whichwere unfavourable to nationalization. By 2 May,the legislative processes for nationalization, in-cluding implementation laws, were completed.After further efforts at negotiations the UnitedKingdom submitted the matter to the InternationalCourt and obtained the Interim Order.

In subsequent negotiations, resumed at the in-stance of Averell Harriman, personal representa-tive of the President of the United States, pro-posals were submitted to the Iranian Governmenton the basis of the United Kingdom's recognitionof the nationalization law. While offering with-drawal of the Anglo-Iranian Company from Iran,the proposals aimed at ensuring technical effi-ciency for the production of oil and for its distribu-tion and sale in world markets. It was further pro-

posed to retain the British technical staff and amanagement in which that staff could have con-fidence. The Iranian Government, however, in-sisted that only the problems relating to the pur-chase of oil to meet the United Kingdom's own re-quirements, the compensation to be paid to theAnglo-Iranian Oil Company and the transfer ofBritish technicians to the service of the IranianNational Oil Company could be discussed. Thenotification by the Iranian Government on 25September to the remaining British staff to leavethe country represented a final flouting of theInterim Order of the Court.

Turning to legal aspects of the case, the repre-sentative of the United Kingdom said that refer-ence of the case to the Security Council was basedon Articles 34 and 35 of the Charter. No one, hesaid, could doubt the inflammatory nature of thesituation in Iran even with the goodwill and re-straint shown by the United Kingdom, nor thepotential threat to peace.

Anticipating the argument that Article 94, para-graph 2, of the Charter applied only to final judg-ments of the Court and laid no obligation on Iranto comply with decisions on interim measures, hesaid that there would be no point in making thefinal judgment binding if one of the parties couldfrustrate that decision in advance by actions whichwould render it nugatory. The steps which Iranhad taken to bring the industry to a standstill wereclearly contrary to the letter and spirit of theCourt's Order.

Further, the Court's notification to the Councilof interim measures under Article 41, paragraph2, of its Statute implied the Council's competence.The whole object of the interim measures, it wasstated, was to preserve the respective rights of theparties and to prevent a situation in which the finaldecision would be rendered inoperative.

Given a minimum of goodwill, he concluded,there was no reason why an arrangement satis-factory to both sides should not be worked out.The Iranians had not to date played a great partin what should, in principle, be a joint undertak-ing. But their part had become increasingly greatand under the latest proposals they would enterinto genuine partnership, while direct Iranian par-ticipation in the operating concern would be veryconsiderable.

At the 560th meeting on 15 October, the repre-sentative of the United Kingdom explained thaton 12 October a revised draft resolution (S/2358/Rev. 1) had been substituted for the original draftresolution in consequence of the changed Iraniansituation, including the expulsion of the remaining

Legal Questions 813

British staff of the Anglo-Iranian Oil Company.The revised draft resolution read as follows:

"Whereas a dispute has arisen between the Govern-ment of the United Kingdom and the Government ofIran regarding the oil installations in Iran, the continu-ance of which dispute is likely to threaten the mainten-ance of international peace and security and

"Whereas the efforts to compose the differences be-tween the United Kingdom Government and the Gov-ernment of Iran regarding the installations have not suc-ceeded and

"Whereas the Government of the United Kingdomrequested the International Court of Justice for an indi-cation of provisional measures and

"Whereas the International Court of Justice, actingunder Article 41, paragraph 2 of its Statute, notified theSecurity Council of the provisional measures indicatedby the Court on July 5, 1951, pending its final decisionas to whether it had jurisdiction in the proceedingsinstituted on May 26, 1951, by the United KingdomGovernment against the Government of Iran, and

"Whereas the United Kingdom Government acceptedthe indication of the provisional measures and the Gov-ernment of Iran declined to accept such provisionalmeasures;

"The Security Council"Concerned at the dangers inherent in the dispute

regarding the oil installations in Iran and the threat tointernational peace and security which may thereby beinvolved;

"Noting the action taken by the International Courtof Justice on July 5, 1951, under Article 41, paragraph2 of its Statute;

"Conscious of the importance, in the interest of main-taining international peace and security, of upholdingthe authority of the International Court of Justice;

"Calls for:"1. The resumption of negotiations at the earliest

practicable moment in order to make further efforts toresolve the differences between the parties in accordancewith the principles of the provisional measures indicatedby the International Court of Justice unless mutuallyagreeable arrangements are made consistent with thePurposes and Principles of the United Nations Charter;

"2. The avoidance of any action which would havethe effect of further aggravating the situation or preju-dicing the rights, claims or positions of the partiesconcerned."

c. IRANIAN STATEMENT

Also at the 560th meeting, the Prime Ministerof Iran appeared before the Security Council; hisstatement covered the following, among otherpoints.

Although Iran had produced a total of 315 mil-lion tons of oil during the 50 years that the UnitedKingdom had the concession, its entire gain hadbeen only £1.10 million. In 1948, the net revenue ofthe former Anglo-Iranian Oil Company had been£61 million, but Iran had received only £9 million,while £28 million had gone into the United King-

dom Treasury by way of income tax alone. In theoil region of southern Iran, it was stated, peoplewere living in absolute misery. If such exploita-tion of the oil industry were to continue, the Iran-ian people would remain forever in a state ofpoverty. Therefore, the Iranian Parliament hadvoted unanimously for nationalization of the oilindustry. Iran's oil resources being the property ofthe people they had absolute rights over them.The exercise of Iran's sovereign rights in such mat-ters was its domestic concern and hence the Se-curity Council had no competence to deal withthe question.

It was further stated that the new law providedfor the payment of compensation to the dispos-sessed Company and that 25 per cent of the earn-ings of the new Company were being set aside forthat purpose. It was also provided that customersof the former Company could purchase, at currentmarket prices, the same quantity of oil previouslypurchased by them and that they were to be givenpriority in the purchase of available additionalsupplies.

The Iranian Government, the Iranian repre-sentative said, had also declared its readiness toenter into a long-term contract to sell oil to theUnited Kingdom and to take the British techni-cians into the employ of its National Oil Companyand give them the necessary authority to carry ontheir technical tasks. Furthermore, Iran had con-cluded no agreement of any kind, whether bytreaty, contract or otherwise, with other States inabridgment of its rights over its oil resources. Yet,the United Kingdom had illegally trespassed onthat right by seeking to take advantage of the ini-quitous concession of 1933. It had further inter-fered in the affairs of Iran. It had sought to inciteinternal dissension and sedition, to instigate strikes,and to intimidate Iran by stationing militaryforces in its vicinity.

The United Kingdom, it was stated, had alsomade abusive use of the International Court ofJustice by misrepresenting the Agreement of 1933as an abridgment of Iran's sovereign rights infavour of the former Company, by taking a non-judicable action to the Court, and by invoking atribunal known to be without competence to hearsuch a complaint without Iran's consent. In itsnote of 9 July 1951 (United Nations RegistryNumber 46/04(8) ) to the Secretary-General,the Government of Iran had declared the Court tobe without competence and its Order invalid be-cause it was outside the terms of the Iranian dec-laration of 2 October 1930 recognizing the com-pulsory jurisdiction of the Court.


Apart from the bar to the Security Council'scompetence interposed by Article 2, paragraph 7,of the Charter, the Council could not do what theUnited Kingdom asked and enforce complianceunder Article 94 of the Charter15 since the Court'sStatute attributed binding force only to a finaljudgment and not to provisional interim measuresindicated under Article 41.

The attempt to derive the Council's authorityfrom the requirement of notice, under Article 41,paragraph 2, of the Statute was open to the objec-tion, it was stated, that an international instrumentwhich concerned exclusively the rights and dutiesof the International Court could not confer powerson the Council by implication.

As regards the suggestion that the Council musthave jurisdiction because of the existence of athreat or potential threat to international peaceand security, the representative of Iran stated thatsuch a threat could not originate from Iran in viewof its small resources and complete lack of warpotential. If there was any threat, it could orig-inate only from the display of force by the UnitedKingdom. If, as had been publicly declared, theUnited Kingdom had abandoned the tactics of dis-playing force, there would be no danger whatever.A complaint therefore could not be pressed onthose grounds.

In a review of United Kingdom policies inIran, the representative of Iran stated that destinyhad placed Iran as a barrier between two largeempires, the Russian and the British. In 1907, theUnited Kingdom had concluded an agreement withTsarist Russia for the division of Iran into twospheres of influence. After the Russian revolution,the Soviet Union had concluded a treaty with Iranin 1921, renouncing, inter alia, rights under the1907 agreement. The United Kingdom, on theother hand, had sought in 1919, by treaty with asubservient Government, to impose a virtual pro-tectorate. The effort had been frustrated by theresistance of the Iranian people and by supportgiven them by some liberal nations, notably theUnited States. However, a military coup d'etat hadtaken place in 1921 with British connivance andhad resulted in a dictatorial regime which theBritish had fostered for twenty years. It was thatdictatorship which had made possible the iniqui-tous Agreement imposed in 1933. The alliance ofIran with the victors in the Second World War hadmade no difference in British policy. Not onlyhad national life been disorganized by foreignarmies, but Iran had had to bear the financialburdens of the British under an onerous monetaryand financial exchange agreement which set the

price of sterling at a fictitious level and broughtabout great inflation.

As for the economic policy of the United King-dom in Iran, he continued, among the first stepsto reduce Iran to economic servitude was the con-cession to W. K. D'Arcy in 1901. The Anglo-Persian Oil Company which replaced D'Arcy asthe concessionaire had paid less than £11 millionin royalties by 1932. By curtailing production andby presenting fictitious balance sheets, the Com-pany showed an ostensible reduction of its earn-ings in 1932 to one fourth of those of the previousyear and thus goaded the Iranian Government toannul the D'Arcy concession. There was abundantevidence that plans for that annulment had beenlaid by the Company in order to prepare the wayfor a more favourable agreement. The British Gov-ernment brought the matter before the League ofNations and, by pressure brought to bear uponIran, effected replacement of the D'Arcy conces-sion, which would have expired in 1961, by the1933 Agreement which extended it to 1993.

Glaring disadvantages of that Agreement in-cluded, it was stated, an income-tax provision underwhich, in 1948, only 2 per cent of the net revenuesof the Company were paid to Iran while 45 percent went to the British Treasury in taxes; a pricefor oil consumed in Iran based on prevailing pricesin the Gulf of Mexico and exorbitantly high con-sidering the low production cost in Iran; exemp-tion from the payment of custom duties and, mostimportant, postponement of the transfer to Iranof the Company's installations by extension of theAgreement.

The former Company, it was said, also declinedto give effect, through false and restrictive inter-pretation, to certain provisions by not paying the20 per cent royalties due on all the profits of sub-sidiary and associated companies; by preventingauditing of accounts by the Iranian Governmentand verification of the amount of oil exported; bysabotaging the principle of Iranian technical de-velopment and increasing the number of foreignemployees from 1,800 in 1943 to 4,200 in 1948;by not carrying out the obligation to make anyinformation available at any time, in particular re-garding the amounts of oil sold to the British Ad-miralty at very low prices; and by not assuringhealth services and housing for its employed Iran-

15

Article 94, paragraph 2, provides that if any partyto a case fails to perform the obligations incumbent uponit under a judgment rendered by the Court, the otherparty may have recourse to the Security Council, whichmay, if it deems necessary, make recommendations ordecide upon measures to be taken to give effect to thejudgment.

Legal Questions 815

ian labourers, of whom more than 80 per centwere without housing.

These policies, it was stated, had led to mount-ing resentment and had resulted in legislation in1944 prohibiting future oil concessions and in themandate by the Majlis in 1947 charging the Gov-ernment to restore to Iran all rights to its naturalresources. Repressive measures were adopted bythe subservient Government against organizationswhich sought to defend national interests, and in1948 a secret Supplemental Agreement was ne-gotiated which was defeated in Parliament becauseof the firm backing given to the opposition bypublic opinion.

After the passage of the nationalization laws in1951, the Iranian Government complied with theformer Company's request for negotiations whichwere subsequently discontinued because the Com-pany's proposals were contrary to the Oil Na-tionalization Law and because they involved arevival of the former Company in a new guise.

The representative of Iran then referred to themediation efforts of Mr. Harriman, whose formulahad been accepted by the United Kingdom as anew basis for negotiations. This provided forUnited Kingdom's recognition of the Nationaliza-tion Law and for Iran's willingness to negotiatewith the United Kingdom regarding the mannerof enforcement of that Law in so far as it concernedUnited Kingdom interests. Under this formula,the United Kingdom mission submitted an eight-point proposal which would provide, inter alia.for:

(1) payment of compensation to the former Com-pany; (2) establishment of a purchasing organizationon behalf of the former Company which would get apractical monopoly of the purchase of oil; ( 3 ) equaldivision of the profits between the National Iranian OilCompany and the purchasing organization; and (4) anoperating agency, to act on behalf of the NationalIranian Oil Company, composed of the British Staff withan Iranian representative on the Board.

These proposals, the Iranian representative stated,were rejected because they were contrary to theOil Nationalization Law and did not comply withthe approved formula.

Counter proposals submitted by the IranianGovernment would have provided for:

(1) the sale to the British Government of theamount of oil purchased in previous years at a price tobe based on the prevailing international rates on thebasis of the f.o.b. value at any Iranian port;

(2) the employment of British technicians in orderto manage the industry on an efficient basis; and

(3) settlement of the compensation claims of theformer Company.

Iran was not prepared to divide the oil receiptsinto halves, nor to accept any kind of partnershipcontrary to ordinary commercial usage. After thefailure of these negotiations, the British staff ofthe former Company were asked to leave. Theirdeparture took place without incident. Neverthe-less, Iran was willing to reopen negotiations onthe sale of oil to the United Kingdom and on com-pensation as soon as the United Kingdom showeda real desire to reach a settlement.

The representative of Iran concluded by statingthat the revised United Kingdom draft resolution(S/2358/Rev.1) was as unacceptable as the oldone because the Security Council was not com-petent to deal with the complaint.

d. REPLIES OF THE UNITED KINGDOM ANDIRAN

In reply, the representative of the United King-dom stated that the Iranian representative hadsuggested that the United Kingdom had not ac-cepted the principle of nationalization, which ithad, and he had implied that the United Kingdomhad used some kind of force, which it had not.The Security Council, he stated, had competencein the matter because international law prescribedthe conditions and the circumstances in which for-eign property could be validly expropriated. More-over, Iran had broken certain treaties, which wasnot a matter of domestic jurisdiction. Further, any-thing done by a Government on its own territoryin relation to foreign private companies could notbe considered a matter of domestic jurisdiction be-cause there were rules of international law gov-erning the treatment of foreigners.

Referring to the indictment of the Companyby the Iranian representative, the representativeof the United Kingdom cited figures to show thatsome of the accusations were false and others weremuch exaggerated. The Iranian representative, itwas said, had not truly represented the Company'sincreasing financial value to Iran, the superiorsocial conditions it provided and the greater in-crease in Iranian than in foreign employees during1933-1948. The fact was that 60 per cent of theCompany's 9,100 salaried staff occupying the high-est positions were Iranians.

As to the economic benefits received by Iranfrom the Company's operations, the United King-dom representative asserted that the entire basisof the industrial potential and future prosperity ofIran had been the development of oil, which Irancould never have achieved without the Company.


At the 563rd meeting, in reply to the UnitedKingdom representative, the representative of Iranset forth data to refute the facts and figures citedby the United Kingdom. These related to compara-tive returns from the Iranian Oil Company to theUnited Kingdom and the Iranian Governments, tounsatisfactory labour conditions in the oil indus-try, and to the status of Iran in oil production com-pared with its oil-producing neighbours. He alsoreferred to the Company's effort to maintain amonopoly on technical knowledge and to its inter-ference in the internal affairs of Iran. The ac-knowledgement by the representative of the UnitedKingdom that the undertaking should have beenjoint came after nearly 50 years of exploitation.What might have been accepted at the beginningwas no longer possible, since Iran had bought andpaid many times over for the share in the enter-prise now offered. Iran was certainly not behindthe United Kingdom in its eagerness to negotiate,he continued, but the former Company wouldnever again operate in Iran. In conclusion, heargued that expropriation of aliens' property wasgoverned by only one condition, the payment ofcompensation, which had been provided for inthis case. Several proposals had been made to set-tle this question but the United Kingdom had notreplied to them.

e. CONSIDERATION OF THE UNITED KINGDOMREVISED DRAFT RESOLUTION

At the 561st meeting of the Council on 16 Oc-tober, the representatives of India and Yugoslaviajointly submitted amendments (S/2379) to theUnited Kingdom revised draft resolution. Thesewould call for the deletion of the last two para-graphs of the preamble (which referred to theprovisional measures) and also for the deletionin paragraph 1 of the operative part of the words"the principles of the provisional measures indi-cated by the International Court of Justice unlessmutually agreeable arrangements are made con-sistent with", so that negotiations would be calledfor simply in accordance with the Purposes andPrinciples of the Charter. In paragraph 2 of theoperative part, it was proposed to delete the refer-ence to the "rights" and "claims" of the parties.

The representative of India explained that theamendments were designed to safeguard the legiti-mate position of each party and to offer a realpossibility for resuming negotiations in a favour-able atmosphere. To make the resolution ac-ceptable so far as possible to both parties, refer-ences to the provisional measures indicated by theCourt had been deleted. As regards the Council's

competence, the Indian representative stated thatthe Council might ask for the resumption of nego-tiations without prejudging the question, just asthe Court had indicated provisional measures with-out prejudging the question.

The representative of China then suggested addi-tional amendments, designed to avoid the char-acterization of the dispute as a threat to the main-tenance of international peace, to delete all refer-ences to the International Court of Justice, and toreplace the phrase "calls for" with the word "ad-vises" so that the resolution would not prejudicethe question of competence but would simply urgethe parties to resume negotiations.

The representative of the USSR expressed oppo-sition to the draft resolution, even if the suggestedamendments were adopted, on the ground that thepurpose of the draft was to force Iran to negotiateand to make a question which lay exclusively with-in the domestic jurisdiction of Iran the subject ofinternational discussion contrary to Article 2, para-graph 7, of the Charter.

At the 562nd meeting on 17 October, the repre-sentative of the United Kingdom stated that hehad reluctantly accepted the joint amendmentsproposed by India and Yugoslavia and had incor-porated them in a second revised draft resolution(S/2358/Rev.2).

The representative of Ecuador considered thatthe nationalization of the oil industry in Iran wasa domestic matter and was legally unassailable,provided that those whose lawful rights were af-fected by it were given fair compensation. Therehad been no refusal by Iran to pay such compen-sation, and it was therefore highly debatable wheth-er the present case was a dispute justifying Secur-ity Council action, particularly as there was nolikelihood of either country attacking the other.Since the power of the Council in relation to theCourt came into play only when a final judgmenthad been made by the Court, there would be nojustification for invoking Article 94 of the Charter.Also, the question of competence was still to bedecided by the Court. He stated that he would,therefore, not be able to vote for the United King-dom draft resolution even as amended. A directsettlement, he said, would be more likely if theCouncil without declaring its competence or in-competence merely used its moral influence. Ac-cordingly, he submitted a draft resolution(S/2380) which, without deciding on the com-petence of the Council, would advise the partiesto reopen negotiations as soon as possible with aview to making a fresh attempt to settle their dif-

Legal Questions 817

ferences in accordance with the Purposes and Prin-ciples of the Charter.

At the 563rd meeting of the Council on 17October, the representatives of Brazil, France, theNetherlands and the United States made state-ments in support of the second revised draftresolution submitted by the United Kingdom.They held that the Council had the right and theduty to enquire into the matter and to do what itcould to promote a peaceful settlement. The repre-sentative of the United States quoted from thestatements of the Iranian representative to showthat the dispute was of a dangerous nature. Therepresentative of Brazil stated that the amendeddraft resolution did not prejudge the merits of thecase nor condemn the position of the IranianGovernment. At the same time it asserted the pri-mary responsibility of the Council in dealing withany situation the continuance of which was likelyto affect peaceful relations between Member States.

f. ADJOURNMENT OF THE DEBATE

At the 565th meeting, the representative ofFrance stated that the International Court had notyet ruled on its own competence and he suggestedthat the debate be adjourned until the ruling ofthe Court was available. The representative of theUnited Kingdom agreed to the suggestion. Therepresentative of the USSR stated that he couldnot agree to the proposal for adjournment, sincehe considered that the Council was not entitled todiscuss the question at all.

In a concluding statement the representative ofthe United Kingdom stated that both the Com-pany's request for arbitration, and his Govern-

ment's attempt to negotiate had been fruitlessbecause of the completely negative attitude ofIran. There had been a denial of justice. The factthat the Security Council was declining to acteffectively might create a most serious precedent.

As regards the future, he continued, his Gov-ernment would still not refuse to discuss matters,provided the Iranian Government did not insiston discussing only the questions of compensationand sale of oil to the United Kingdom. Whateverthe Iranian representative might say to the con-trary, his view would not be acceptable to anyGovernment or company in a similar situation.How could the Iranian Government, he asked,conceivably pay compensation or discuss the saleof oil, if Iran had neither the revenues nor the oilto sell because it was unable to operate its oilindustry effectively? There was nothing, he added,in the various offers made by his Governmentwhich could be regarded as in any way inconsistentwith full and complete nationalization, that is, theownership by the Iranian Government of the oilindustry of its country.

At the 565th meeting on 19 October, the Coun-cil adopted the motion presented by the repre-sentative of France by 8 votes in favour, 1 against(USSR) and 2 abstentions (United Kingdomand Yugoslavia).

In explanation of his vote the representative ofYugoslavia stated that he had abstained from vot-ing because the motion implied that the questionof the competence of the Security Council de-pended, at least to a certain degree, on the deci-sion of another United Nations body, an opinionwhich he did not share.

D. OTHER CASES BEFORE THE INTERNATIONAL COURT OF JUSTICE

1. Case Concerning Rights of Nationalsof the United States of America in

Morocco (France-United States)

This case had been brought before the Courtby France by an Application filed with the Regis-try of the Court on 28 October 1950.10 On 21June 1951, the time limit fixed by the Court forthe filing of the United States Counter-Memorial,the United States filed a Preliminary Objection.In accordance with article 62, paragraph 3, of theRules of the Court, the proceedings on the meritswere thereby suspended, and the Acting Presidentof the Court (as the Court was not sitting), in anOrder of 25 June 1951,17 fixed 6 August 1951 as

the time limit within which France might presenta written statement concerning the United StatesObjection.

The French written statement was presentedwithin the required time limit. The Court on 4October 1951 asked the Agent of the FrenchGovernment to clarify the capacity in which theFrench Republic was proceeding in that case and,in particular, to specify whether it was appearingboth on its own account and as Protecting Powerin Morocco.

In a letter of 6 October 1951, the Agent of theFrench Government, in reply, stated that the

16 See Y.U.N., 1950, p. 845.17 I.C.J. Reports 1951, p. 86.

Yearbook of the United Nations

French Republic was proceeding in the case bothon its own account and as Protecting Power inMorocco, the judgment of the Court to be bind-ing upon France and Morocco.

In a letter of 22 October 1951, the Agent ofthe United States Government stated that, in viewof the terms of this letter, his Government wasprepared to withdraw its objection. The Agent ofthe French Government on 27 October indicatedthat he did not oppose this withdrawal.

The Court, therefore, in an Order of 31October,18 placed on record the discontinuance bythe United States Government of the proceedingsinstituted by the Preliminary Objection andordered them removed from the Court's list. Itrecorded that the proceedings on merits wereresumed and fixed 20 December 1951 as the timelimit for the filing of the United States Counter-Memorial, 15 January for the French reply, and11 April for the United States rejoinder.

2. Ambatielos Case (Greece-United Kingdom)

On 9 April 1951, Greece deposited with theRegistry of the Court an Application institutingproceedings against the United Kingdom in thiscase. It invoked the combined provisions of theTreaty of Commerce and Navigation betweenGreece and Great Britain of 10 November 1886,of the Declaration accompanying the Greco-Britannic Treaty of Commerce and Navigation of16 July 1926, and also of article 29 of the latterTreaty.

The Application stated that Nicolas EustacheAmbatielos, a Greek shipowner, concluded withthe United Kingdom Government on 17 July1919 a contract for the purchase of nine steam-ships, which were being built in the dockyards atHong Kong and Shanghai at a rate of £40 per tonfor vessels of 5,000 tons and of £36 per ton forvessels of 8,000 tons, the total price amounting to£2,275,000. The vessels allegedly were not deliv-ered at the dates which had been fixed by agree-ment between the parties, delay amounting in somecases to as much as eight months.

Freight rates fell appreciably, the purchaserwas considerably prejudiced and, as a result, inNovember 1920 Mr. Ambatielos was in debt tothe British Government for an amount of £750,-000. To guarantee this debt he mortgaged theseven ships which had been delivered and signedthe necessary mortgage instruments. Although hisdebt was amply covered by the value of the mort-

gaged vessels, the United Kingdom Government,it was stated, refused to deliver to him the remain-ing two ships, Mellon and Stathis, although theywere not included in the mortgage contract andwere free of any charge and could have been usedby the purchaser who had freighted them to theArgentinian Government on very favourableterms. The seven other ships were similarly seizedand remained unused for two years, with theresult that Mr. Ambatielos, who had already paida total of £1,650,000 to the British Government,was completely ruined.

In May 1951, Mr. Ambatielos went to Londonand negotiated with a representative of the BritishMinistry of Shipping, who allegedly consented toreduce the agreed price by £500,000 and agreedto arbitration in regard to the delayed delivery ofthe seven vessels and the failure to deliver Mellonand Stathis. An arbitrator was appointed. How-ever, the United Kingdom Government, insteadof proceeding with the arbitration, brought a legalaction against Mr. Ambatielos for the payment ofthe sum it believed due to it. Mr. Ambatieloscounter-claimed for the payment of an indemnityin compensation for the loss he had suffered. On15 January 1923, the British court ruled that Mr.Ambatielos had to pay £300,000 to the UnitedKingdom Board of Trade and disallowed hiscounter-claim. Greece claimed that the Court triedthe case without knowledge of the essential facts,since two principal witnesses were not called. Mr.Ambatielos appealed to the United KingdomCourt of Appeal against this judgment on 17February 1923, but his appeal was denied and, asit was impossible for him to produce the dataessential for his claim, he thought it useless toplead the case any further.

In its Application to the International Court ofJustice, Greece stated that the United KingdomBoard of Trade had withheld essential evidencesuch as statements by reliable witnesses who couldswear that payment had been understood to beconditional on the agreed delivery dates whichhad not been kept.

Greece charged that the treatment of Mr.Ambatielos violated the 1886 Greco-British Treatyof Commerce and Navigation, which guaranteesto the subjects of each of the parties free access tocourts of the other party "for the prosecution anddefence of their rights." The Greek Government,it stated, had first taken up the case in 1925.Diplomatic correspondence had frequently beenexchanged on the subject. The United Kingdom

18 I.C.J. Reports 1951, p. 109.

Legal Questions 819

Government had, it was stated, refused to submitthe case to international arbitration in 1925, 1933,1934, 1939 and 1940.

Greece, stating that the means for a direct andamicable settlement having been exhausted, there-fore requested the Court to declare:

(1) that the arbitral procedure referred to in theFinal Protocol of the Greco-Britannic Treaty of Com-merce and Navigation of 1886 must be applied in thepresent case; and

(2) that the Commission of Arbitration providedfor in this protocol shall be constituted within a reason-able period, to be fixed by the Court.

On 7 May 1951, the United Kingdom notifiedthe Court that it intended to contest the Court'sjurisdiction. Three postponements were subse-quently granted by the Court for the filing of thewritten proceedings.

3. Nottebohm Case (Liechtenstein-Guatemala)

On 17 December 1951, Liechtenstein filed withthe Registry of the Court an Application institut-ing proceedings against Guatemala in this case.The Application referred to the declarations by thetwo States accepting the compulsory jurisdictionof the Court.

Liechtenstein complained that Guatemala hadtreated Friedrich Nottebohm, a national of Liech-tenstein, in a manner contrary to internationallaw.

The Application stated that Friedrich Notte-bohm, born a German national, took up residencein Guatemala in 1906, and acquired Liechtensteinnationality in 1939, although still maintainingresidence in Guatemala. Guatemala entered thewar against the Axis Powers at the end of 1941and, on 19 November 1943, Mr. Nottebohm wasarrested. The next day he was taken on board anAmerican vessel to the United States and internedthere as an enemy alien, and soon afterwards allhis property was sequestrated. Liechtenstein, inits Application, stated that it was not clear whethercontinued sequestration of the property continuedunder a confiscation law of 1949 (which confis-cates property of nationals of a State later at warwith the Allies or placed on the black list of theUnited States) or under previous wartime legisla-tion affecting enemy aliens. Mr. Nottebohm, theapplication stated, had been put on both the UnitedStates and United Kingdom black lists. On 7

March 1944, however, the civil attaché of theBritish Legations in Central America issued adocument declaring that, after thorough investiga-tion of Mr. Nottebohm and his affairs, the attachéconsidered that he had not helped the Nazis andwas not a Nazi sympathizer.

Mr. Nottebohm had been informed that hisGuatemalan registration as a Liechtenstein nationalhad been cancelled, and that he could not re-enterGuatemala under his present nationality.

Property itemized in the application includedplantations, houses, bank accounts and shares,registered under the name of Nottebohm Her-manos, and amounted to US.$1,509,566, with anestimated yearly income of a minimum of $70,000.

Attempts by Liechtenstein to negotiate withGuatemala, it was stated, were unsuccessful.

Liechtenstein asked the Court to declare thatGuatemala had acted contrary to international lawand had incurred international responsibility bythe unjustified detention, internment and expul-sion of Mr. Nottebohm and by the sequestrationand confiscation of his property, that Guatemalawas bound to restore property belonging to Mr.Nottebohm or to pay him compensation for suchproperty as it could not restore, and that it wasbound to pay compensation for the use of andprofits derived from sequestrated and confiscatedproperty and for damage thereto. It furtherclaimed compensation for the unlawful detentionand internment of Mr. Nottebohm and for hishaving been prevented by the Government ofGuatemala, in a manner amounting to unjustifiedexpulsion, from returning to Guatemala. It askedthe Court to determine the amount of compen-sation.

4. Minquiers and Ecrehos Case(United Kingdom-France)

On 14 December 1951, the United Kingdomfiled with the Registry of the Court a SpecialAgreement by which the United Kingdom andFrance submitted to the Court a dispute whichhad arisen between them concerning sovereigntyfor the Minquiers and Ecrehos islets. Both Statesclaimed sovereignty over these islets which aresituated in the English Channel. The Court wasasked to determine to which of the two Statessovereignty over these islets and rocks belongs, inso far as they are capable of appropriation.


E. RESERVATIONS TO MULTILATERAL CONVENTIONS

The General Assembly at its fifth session, inresolution 478(V) of 16 November 1950:19

(1) asked the International Court of Justice for anadvisory opinion on certain questions concerning theeffect of reservations to the Convention on the Preven-tion and Punishment of the Crime of Genocide and ofobjections to them;

(2) asked the International Law Commission for areport on the questions of reservations to multilateralconventions both from the point of view of codificationand of progressive development of international law;and

(3) instructed the Secretary-General, pending con-sideration by the Assembly at its sixth session, to con-tinue his prior practice in regard to reservations with-out prejudice to the legal effect of objections to them.

1. Advisory Opinion of theInternational Court of Justice

The questions addressed to the Court by theAssembly were as follows:

"In so far as concerns the Convention on the Preven-tion and Punishment of the Crime of Genocide in theevent of a State ratifying or acceding to the Conventionsubject to a reservation made either on ratification or onaccession, or on signature followed by ratification:

"I. Can the reserving State be regarded as being aparty to the Convention while still maintaining itsreservation if the reservation is objected to by one ormore of the parties to the Convention but not byothers?

"IL If the answer to Question I is in the affirmative,what is the effect of the reservation as between thereserving State and:

"(a) The parties which object to the reservation?"(b) Those which accept it?

"III. What would be the legal effect as regards theanswer to Question I if an objection to a reservation ismade:

"(a) By a signatory which has not yet ratified?"(b) By a State entitled to sign or accede but

which has not yet done so?"

On 17 November 1950, the Assembly's resolu-tion was sent by the Secretary-General to theRegistry of the Court; on 25 November it wasnotified to all States entitled to appear before theCourt.

On 1 December the President (as the Courtwas not sitting) fixed 20 January 1951 as the timelimit for the filing of written statements. By theterms of this Order, such statements could be sub-mitted by all States entitled to become parties tothe Genocide Convention, that is, any Member ofthe United Nations as well as any non-memberState to which an invitation to this effect had

been addressed by the General Assembly in itsresolution 368 (IV)20 of 3 December 1949.

On the same date, the Registrar addressed thespecial direct communication provided for inArticle 66, paragraph 2, of the Court's Statute to allthese States.

The following States and organizations pre-sented written observations: Bulgaria, the Byelo-russian SSR, Czechoslovakia, Israel, Jordan, theNetherlands, the Philippines, Poland, Romania,the Ukrainian SSR, the USSR, the United King-dom and the United States; the InternationalLabour Organisation, the Organization of Amer-ican States and the Secretary-General of the UnitedNations.

At sittings from 10-14 April 1951, the Courtheard oral statements on behalf of the Secretary-General of the United Nations, France, Israel andthe United Kingdom.

It delivered its Advisory Opinion on 28 May1951.21

a. THE COURT'S OPINION

In its Opinion the Court dealt first with objec-tions raised regarding its competence. The firstobjection was founded on the argument that themaking of an objection to a reservation consti-tuted a dispute between States, and that, to avoidadjudicating on the dispute, the Court shouldrefrain from giving an opinion on Questions Iand II. The Court held that a reply to a requestfor an opinion should not, in principle, be refused,and that it had the power to decide whether thecircumstances in a particular case should lead it todecline to reply to the request for an opinion. Inthe present case, it held, there was no reason torefuse to reply, since the object of the request foran opinion was to guide the United Nations inrespect of its own action, the General Assemblyand the Secretary-General being interested toknow the legal effects of reservations and objec-tions to reservations to the Genocide Convention.

The second objection was that a request for anopinion would constitute an inadmissible inter-ference by the General Assembly, because onlyStates which were parties to the Convention wereentitled to interpret it. In this connexion, theCourt stated that the part played by the Assembly

19 See Y.U.N., 1950, p. 879.20 See Y.U.N., 1948-49, p. 961.21 I.C.J. Reports 1951, p. 15.

Legal Questions 821

in preparing the Convention as well as its associa-tion with the life of the Convention as evidencedin the Convention's articles and in Assembly reso-lutions showed that the precise determination ofconditions for participation in the Conventionconstituted a permanent interest of direct concernto the United Nations which had not disappearedwith the Convention's entry into force. TheAssembly's request did not impair the inherentright of States parties to the Convention in thematter of its interpretation.

The third objection was that the Conventionitself laid down a procedure for the settlement ofdisputes concerning its interpretation; it was con-tended that no dispute existed, and if there wasno dispute, it was stated, the Court was deprivednot only of contentious jurisdiction, but also ofpower to give an advisory opinion. The Courtheld that the existence of a procedure for the set-tlement of disputes did not debar it from givingan opinion, since the Charter had conferred onthe General Assembly in general terms the rightto request an advisory opinion on any legal ques-tion. Moreover, the application of the Conven-tion's procedure for settling disputes was applic-able only between contracting parties and couldnot therefore, it was stated, be invoked against arequest the object of which was to determine theconditions for participation in the Convention.

Turning to the three questions addressed to it,the Court noted that they were all expressly lim-ited to the Genocide Convention and were purelyabstract in character. The Court's replies weretherefore necessarily and strictly limited to thatConvention, and did not refer to any particularreservations which had been made, nor to objec-tions to them.

The first question, the Court observed, referrednot to the possibility of making reservations tothe Genocide Convention, but only to the ques-tion of whether a contracting State maintaining areservation could be regarded as a party to theConvention while some parties accepted and someobjected to its reservation.

In its treaty relations, the Court stated, a Statecannot be bound without its consent; consequentlyit can only be bound by a reservation if it agreesthereto. It was also a generally accepted principle,it said, that a multilateral convention is the resultof an agreement freely concluded, so that none ofthe parties is entitled to frustrate its purpose byunilateral decisions or particular agreements. Tothis principle was linked the notion of the integ-rity of the convention as adopted, a notion whichin its traditional concept involved the proposition

that no reservation was valid unless accepted byall the contracting parties.

This concept, the Court stated, inspired by thenotion of contract, was of undisputed value as aprinciple, but as regards the Genocide Conventionits application was made more flexible by a varietyof circumstances, including the universal characterof the United Nations, under whose auspices theConvention was concluded, and the very widedegree of participation envisaged by the Conven-tion. Wide participation in conventions of thistype had already, it was stated, given rise to greaterflexibility in practice.

"More general resort to reservations, very great allow-ance made for tacit assent to reservations, the existenceof practices which go so far as to admit that the authorof reservations which have been rejected by certain con-tracting parties is nevertheless to be regarded as a partyto the convention in relation to those contracting partiesthat have accepted the reservations—all these factors aremanifestations of a new need for flexibility in the opera-tion of multilateral conventions."

The Court pointed out further that the Geno-cide Convention was the result of a series ofmajority votes, and that the majority principlemight make it necessary for certain States to makereservations, as had been shown by the great num-ber of reservations made in recent years to multi-lateral conventions.

In these circumstances, it stated, it could not beinferred that the absence of an article in the Con-vention providing for reservations meant thatthey were prohibited. It was necessary in deter-mining the possibility of reservations and theireffects to consider the particular character of theconvention, as well as its mode of preparation,provisions and purpose. An understanding, theCourt stated, was reached in the Assembly on theright to make reservations, and it concluded thatStates becoming parties to the Convention gavetheir assent to this.

The kind of reservations and objections per-mitted could be determined by considering thespecial characteristics of the Genocide Conven-tion. It was intended that this Convention wouldbe universal in scope, and its purpose was purelyhumanitarian and civilizing. The Convention didnot provide a contractual balance of rights andduties of individual States but merely served acommon interest. The purpose of securing as wideas possible participation in the Convention wouldbe defeated if an objection to a minor reservationshould produce complete exclusion and this woulddetract from the authority of the moral andhumanitarian principles which were the Conven-tion's basis. On the other hand, the contracting


parties could not have intended to sacrifice thevery object of the Convention in favour of secur-ing as many participants as possible. The com-patibility of a reservation with the object andpurpose of the Convention was, therefore, the cri-terion by which States must be guided individu-ally in making reservations and in appraising theiradmissibility.

The Court rejected the view that any Stateentitled to become a party to the Conventionmight do so while making any reservation itchose by virtue of its sovereignty; such an extremeapplication of the idea of State sovereignty, itconsidered, could lead to a complete disregard ofthe Convention's object and purpose. It also didnot agree on the applicability of an alleged ruleof international law to the effect that a reserva-tion was subject to the express or tacit consent ofall the contracting parties, if it could be estab-lished that the parties intended to admit the pos-sibility of making reservations. Furthermore, theconception of the absolute integrity of the con-vention as adopted, on which this theory rested,had not, it considered, been transformed into arule of international law, having regard to theconsiderable part played by tacit assent in estimat-ing the effect to be given to reservations and tak-ing into account that the examples of objectionshad been too rare in international practice to havegiven rise to such a rule.

The administrative practice followed by theSecretariat of the League of Nations and by theSecretary-General of the United Nations in hiscapacity of depositary of conventions did nothave the effect of creating a rule of internationallaw. Moreover, it did not, in the Court's view,constitute a decisive factor in determining theviews of the contracting States to the GenocideConvention concerning the rights and duties aris-ing from that Convention. A different practice, itwas pointed out, was followed by the Organiza-tion of American States, permitting reservingStates to become parties to conventions despiteobjections raised to their reservations. There wasnothing to show that the contracting parties indrafting the Genocide Convention had any parti-cular administrative practice in mind; further thedebates at the Assembly's fifth session had showna wide divergence of views on the subject.

The Court concluded that an absolute answercould not be given to Question I, and that theappraisal of a reservation and the effect of objec-tions to it depend upon the particular circum-stances of each individual case.

The Court considered that the same considera-tions applied to Question II—regarding the effectof a reservation between the reserving State andthe parties which object to it and those whichaccept it. Since no State could be bound by areservation to which it had not consented, eachState, on the basis of its individual appraisal ofthe reservations within the limits of the criterionof the objects and purpose of the Convention,would or would not consider the reserving State aparty to the Convention. Ordinarily this wouldonly affect the relations between the reservingState and the objecting State, but in the event ofa disagreement between parties as to the admissi-bility of a reservation certain parties might wishto settle the dispute by special agreement or bythe procedure laid down in the Convention. Also,any State could come to an understanding withthe reserving State that the Convention shouldenter into force between them, except for theclauses affected by the reservation. The disadvan-tages from this possible divergence of views couldhave been remedied by an article on reservations;they were mitigated by the common duty of con-tracting States to be guided in their judgment bythe compatibility or incompatibility of a reserva-tion with the object and purpose of the Conven-tion. It had to be assumed that the contractingparties wished to preserve intact at least what wasessential to the object of the Convention. Suchbeing the situation, the task of the Secretary-General as depositary would be confined toreceiving reservations and objections and notify-ing them.

In regard to Question III, the Court held that aState entitled to sign and ratify the Conventionbut which had not done so had no rights underthe Convention which could exclude anotherState. In the case of a State which had signed butnot yet ratified, it had the right to formulate as aprecautionary measure objections which wouldhave a provisional character and would expressits attitude on becoming a party. If the State'ssignature was followed by ratification, the objec-tion would become effective, otherwise it woulddisappear.

The Court's Opinion was adopted by 7 votes to5. It gave the following answers to the questionsaddressed to it:

On Question I:"A State which has made and maintained a reservation

which has been objected to by one or more of the partiesto the Convention but not by others, can be regarded asbeing a party to the Convention if the reservation is com-patible with the object and purpose of the Convention;

Legal Questions 823

otherwise, that State cannot be regarded as being a partyto the Convention."

On Question II:"(a) If a party to the Convention objects to a reser-

vation which it considers to be incompatible with theobject and purpose of the Convention, it can in factconsider that the reserving State is not a party to the Con-vention;

"(b) if, on the other hand, a party accepts the reser-vation as being compatible with the object and purposeof the Convention, it can in fact consider that the re-serving State is a parry to the Convention."

On Question III:"(a) An objection to a reservation made by a signa-

tory State which has not yet ratified the Convention canhave the legal effect indicated in the reply to Question Ionly upon ratification. Until that moment it merely servesas a notice to the other State of the eventual attitude ofthe signatory State;

"(b) an objection to a reservation made by a Statewhich is entitled to sign or accede but which has notyet done so, is without legal effect."

b. DISSENTING OPINIONS

Two dissenting opinions were appended to theOpinion; one jointly by Vice-President Guerreroand Judges Sir Arnold McNair, Read and HsuMo, and the other by Judge Alvarez.

The joint dissenting opinion stated that theexisting rule of international law, and the currentpractice of the United Nations, were to the effectthat, without the consent of all the parties, areservation to a multilateral convention could notbecome effective and the reserving State could notbecome a party to a convention. States negotiatinga convention could modify this rule and practiceby making express provision in the conventionand frequently did so. They did not do so in theGenocide Convention and therefore they contract-ed on the basis of existing law and current practice.

It was stated further that the attempt in theCourt's Opinion to classify "compatible" and "in-compatible" reservations would lead to a classifi-cation of the provisions of the Convention intocategories of major and minor importance; reser-vations to major provisions would be "incompat-ible", while those to minor ones would be "com-patible". Opinions of States on this classificationmight differ. Since this was a new rule for whichthere was no existing legal basis and one whichwould be very difficult to apply, it would have tobe deduced from the intentions of the parties.They had, however, refrained from making anyprovisions for reservations in the Genocide Con-vention although this question had been discussed.Further, it was difficult to see how the rule would

work. Did the object and purpose of the GenocideConvention, for example, comprise any or all ofits enforcement articles? If the contracting Stateseach made its own appraisal of whether a reserva-tion was compatible or not, there would be nocertainty as to the status of reserving States, unlessthis question was subsequently referred for a judi-cial decision. In consequence it would not be clearwhen a convention was in force. However, theAssembly wished to know whether a reservingState could or could not be regarded by the law asa party to the Genocide Convention, not whetheran existing party individually considered it so. Ithad been stated that difference of opinion regard-ing the compatibility of a reservation could besettled by reference to the Court, but eight Stateshad already made reservations concerning thearticle providing for such reference.

These dissenting judges believed that the integ-rity of the terms of the Convention was of greaterimportance than mere universality of acceptance.In a common effort to promote a great humani-tarian object, such as the Genocide Convention,every State expected every other interested Statenot to seek any individual advantage but to carryout the measures resolved by common accord, sothat every party had to be given the right todecide whether to exclude a reserving State. Thisapplied particularly in the case of the GenocideConvention.

These four judges therefore dissented from theCourt's reply to Question I; Question II did nottherefore arise for them. While dissenting fromthe reply given on Question III they stated that,because of the dominating importance theyattached to the issues raised by Question I, theydid not add their reasons for dissent on thisquestion.

In his dissenting opinion, Judge Alvarez drewattention to the development of international law.In his view, as a result of the great changes ininternational life the Court in determining thepresent state of law in each case was free to developlaw and indeed, if necessary, to create it. In thenew international law, there were four categoriesof multilateral conventions, three of which wereformerly unknown:

(1) those seeking to develop world international or-ganization or to establish regional organizations;

(2) those seeking to determine the territorial statusof certain States;

(3) those seeking to establish new and importantprinciples of international law; and

(4) those seeking to regulate matters of a social orhumanitarian interest with a view to improving the posi-tion of individuals.


The Genocide Convention belonged to the lasttwo categories.

The four categories of conventions had a uni-versal character. They were established for thegeneral interest, differing from other conventionsin that they imposed obligations without grantingrights. They were discussed at length in UnitedNations Assemblies, and were adopted by major-ity vote. These conventions, he considered, werealmost real international laws; they establishedprinciples which must be observed by all States byreason of their interdependence and of the exist-ence of an international organization. They couldnot therefore be interpreted with reference to theirpreparatory work or in the light of argumentsdrawn from domestic contract law. By their natureand the manner in which they were formulatedthey constituted an indivisible whole, thereforethey could not be made the subject of reservationswhich would be contrary to the purpose of thegeneral interest and the social interest. This wasshown in the case of the Charter of the UnitedNations and the Statute of the InternationalCourt of Justice which were accepted withoutreservations. In practice it had been shown thatStates were unwilling to remain aloof from suchinternational instruments even if they could notmake reservations to them. States which had anopportunity of making criticisms during thedrawing up of these types of conventions couldnot be allowed by independent action to destroyan instrument approved by the Assembly. JudgeAlvarez suggested that, to avoid such difficulties,conventions of these types ought to be establishedin their essential points without going into details,so that they could be accepted by the greatest pos-sible number of States.

He disagreed with both the Court's Opinionand the joint dissenting opinion.

Following the Court's Opinion, States woulddiffer as to whether reservations were or were notin conflict with the aim of the Convention, and ifsuch controversies were referred to the Court itwould be so overburdened that its functions wouldbe distorted. It would be better to state that reser-vations were inadmissible in the four categoriesof multilateral conventions mentioned, in parti-cular in the case of the Genocide Convention. Ifreservations were admissible, conventions shouldstate so plainly and determine the scope of suchreservations. If they were not provided for, in hisopinion, if a reservation was not accepted by oneor several parties to the convention the reservingState would not be a party to the convention; if itwas accepted by the majority of the parties, the

convention would become another convention towhich those not accepting the reservation wouldnot be parties; if it was accepted by some Statesand objected to by others, there would be no con-vention.

He therefore answered Question I negatively;Question II did not therefore arise. As regardsQuestion III, he considered that legal effect mustbe given to reservations to conventions in the firsttwo of the four categories outlined.

2. Report of the International LawCommission

In accordance with Assembly resolution478(V), the International Law Commission con-sidered the question of reservations to multilateralconventions at its third session from 16 May—27July. The Assembly had asked the Commission, inthe course of its work on the codification of thelaw of treaties, to study this question both fromthe point of view of codification and from that ofthe progressive development of international law,to give priority to the study, and to report to theAssembly's sixth session.

The Commission had before it a "Report onReservations to Multilateral Conventions (A/CN.4/41) submitted by Mr. Brierly, special rappor-teur on the topic of the law of treaties, as well asmemoranda presented by Mr. Amado (A/CN.4/L.9 and Corr.1) and Mr. Scelle (A/CN.4/L14).The Commission also took into account, as re-quested by the Assembly, the views expressedduring the Assembly's fifth session. The Court'sAdvisory Opinion on the Genocide Conventionwas also communicated to the Commission.

In its report (A/1858) the Commission notedthat the Court's Opinion referred specifically tothe Genocide Convention and was given on thebasis of the Court's interpretation of existing law.Since it had been asked to study the general ques-tion both from the point of view of codificationand from that of the progressive development ofinternational law it felt at liberty to suggest thepractice which it considered the most convenientfor States to adopt for the future. The Commis-sion reviewed three practices :

(1) that used by the League of Nations, and followedsubstantially by the Secretary-General of the United Na-tions; (2) that followed by the Organization of Ameri-can States; and (3) that suggested by the Court.

The practice of the Organization of AmericanStates, it said, provides that the texts of reserva-tions prior to their deposit are communicated tothe signatory States to ascertain whether they

Legal Questions 825

accept or not. The reserving State, taking accountof these reservations may then decide to adhere ornot. Treaties are in force in the form in whichthey were signed between countries ratifyingwithout reservations. They are in force betweenStates ratifying with reservations and signatoryStates accepting the reservations in the form inwhich they are modified by the reservations. Theyare not in force between Governments ratifyingwith reservations and others which have alreadyratified and which do not accept the reservations.

The Commission considered that this system,although it might be applicable to a regionalorganization such as the Organization of AmericanStates, was not suitable for application to multi-lateral conventions in general. In cases where uni-versality was more important than the integrity ofa convention it would be possible to adopt thisprocedure by inserting a suitable provision in theconvention. But the Commission questionedwhether it had had the effect of promoting uni-versality in the history of the conventions adoptedby the Conferences of American States. It consid-ered, also, that integrity and uniform applicationof conventions were more important considera-tions than universality, particularly in the case ofconventions drawn up under the auspices of theUnited Nations. These were conventions of alaw-making type where States accepted limitationson their freedom of action on the understandingthat the other participating States would acceptthe same limitations. The Pan-American practice,in the Commission's opinion, would be likely tostimulate reservations and tend to split them upinto a series of bilateral conventions and thusreduce their effectiveness. Mr. Yepes (Colombia)voted against this part of the Commission's report.He considered that the Pan-American system couldbe successfully applied in the United Nations,particularly as it was a vaster and less closely-knitorganization. He stated that, as this system wasused in practice by the majority of United NationsMembers, it could be regarded as existing law andtherefore should be adopted by the Commission.

The Commission considered that the criterionof compatibility applied by the Court in itsAdvisory Opinion (see above) was not suitablefor general application. It involved dividing theprovisions of a convention into two categoriesand it was reasonable to assume that the draftersof a convention regarded its provisions as anintegral whole. Such a distinction, moreover,would be made subjectively by individual States,and the status of reserving States in relation tothe convention would remain uncertain. Even

were it possible to refer differences of views tojudicial decision this might not be resorted to andwould in any case involve delay. The status of theconvention itself might also be thrown into doubt.Further, the function of the Secretary-General asdepositary of conventions would be made difficultand unduly complex.

While it was desirable that conventions shouldhave the widest possible acceptance, it was alsodesirable that they should impose uniformity ofobligations.

The Commission recommended that the nego-tiating States should provide in the text of a con-vention for the limits within which, if at all,reservations would be admissible and the effect tobe given to such reservations. In some cases, itwas suggested, all possibility of reservations shouldbe excluded, in others the precise text could be setout or the scope of reservations might be limitedby requiring them to relate only to particularparts of the text. If no limit were placed on reser-vations and there were no established organiza-tional procedure, the text should establish a pro-cedure providing in particular for the followingpoints:

(1) how and when reservations may be tendered;(2) notifications to be made by the depositary as re-

gards reservations and objections to them;(3) categories of States entitled to object to reserva-

tions, and the manner in which their consent to themmay be given;

(4) time limits within which objections are to bemade; and

(5) effect of the maintenance of an objection on theparticipation in the convention of the reserving State.

The Commission believed that multilateral con-ventions were so diversified in character and objectthat when the text did not deal with the admissi-bility or effect of reservations, no single rule uni-formly applied could be wholly satisfactory. Itconsidered that a rule which would be suitable forapplication in the majority of cases could befound in the practice hitherto followed by theSecretary-General, with some modifications. Underthis practice, the unanimous consent of Stateswhich have ratified or acceded to conventions wasnecessary for a State to become a party subject toreservations. The modifications suggested werethat the objection of a signatory State, and notonly of a State which had already ratified, should betaken into account, but that a time limit of twelvemonths should be prescribed beyond which theobjection of a signatory State, if it had not mean-time ratified or accepted the convention, wouldcease to have the effect of preventing the reserv-ing State from becoming a party.


In its conclusions, the Commission suggestedthat:

"organs of the United Nations, specialized agenciesand States should, in the course of preparing multilateralconventions, consider the insertion therein of provisionsrelating to the admissibility or non-admissibility of reser-vations and to the effect to be attributed to them."

In the absence of contrary provisions in a con-vention, it suggested the following procedure:

(1) Communication of reservations to all States en-titled to become parties to the convention.

(2) States should be requested to express their atti-tude to the reservation within a specified period. If with-in the period they do not do so or they sign, ratify orotherwise accept the convention without expressing anobjection to the reservation they should be considered ashaving consented to the reservation.

(3) All replies in respect of reservations should becommunicated to all States entitled to become parties.

(4) If the convention enters into force on signature,a reserving State may become a party only in the absenceof objection by any State which has previously signed theconvention; if it is open for signature during a limitedfixed period, only in the absence of objection by anyState which signs during that period.

(5) If ratification or acceptance in some form is nec-essary to bring the convention into force, (a) a reser-vation made by a State at signature should have no effectunless repeated or referred to in the State's later ratifica-tion or acceptance; (b) a reserving State may become aparty only in the absence of objection by any State whichhas previously signed, ratified or otherwise accepted theconvention and, if the convention is open for signaturefor a limited period only, in the absence of objection byStates signing, ratifying or otherwise accepting the con-vention before the end of that period, provided that anobjection by a signatory State will cease to have effectif it has not ratified or otherwise accepted the conventionin twelve months.

3. Consideration by the GeneralAssembly at its Sixth Session

The question was considered by the GeneralAssembly at its sixth session, at the 264th to278th meetings of the Sixth Committee from 5December 1951-5 January 1952 and at theAssembly's 360th plenary meeting on 12 January.The Commission decided to consider the Court'sOpinion and the Commission's report together.

a. GENERAL DISCUSSION IN THE SIXTHCOMMITTEE

During the general discussion, there was a largemeasure of agreement that, as far as the particularcase of the Genocide Convention was concerned,the Advisory Opinion of the Court should beapplied. Certain representatives, including thoseof Belgium, Brazil, Canada, Ethiopia, France, Nor-

way and the United Kingdom, however, empha-sized that, in their view, the reason for suchacceptance was the respect due to the Court as theprincipal judicial organ of the United Nations.

Some representatives did not accept the Court'sOpinion. Those of Pakistan and Yugoslavia, inparticular, stated that the Genocide Conventiondid not admit of reservations. The representativeof Indonesia considered that such reservationsrequired the unanimous consent of the parties.The representatives of Czechoslovakia, Poland andthe USSR took the view that States had an abso-lute right to make whatever reservations theychose to the Genocide Convention.

Any rule on reservations laid down by theAssembly, the representatives of Belgium, France,India, the Netherlands and Norway insisted, couldnot be retroactive and could not apply to existingconventions. The representatives of Belgium,France, the Netherlands and Sweden consideredthat such a determination of the law would bebeyond the Assembly's competence. The repre-sentatives of Argentina, the USSR and the UnitedStates, however, held that the Assembly was fullycompetent to give the Secretary-General instruc-tions on reservations to existing conventions.

There was wide agreement with the suggestionof the International Law Commission that a reser-vations clause should be inserted in future con-ventions. Some representatives, for example thoseof Cuba and Greece, considered that it should beinserted in all conventions, others, including therepresentatives of the United States and Uruguay,that it should be left to the negotiators to decideif it was advisable to insert such a clause. The rep-resentatives of Czechoslovakia and Poland consid-ered that such clauses should only be adopted byunanimous vote of the drafting conference.

Broadly speaking, the main division of opinionwas between those who favoured the so-called"League of Nations" or "classical" system (recom-mended with certain modifications by the Inter-national Law Commission (ILC)), under whichthe unanimous consent of the parties to a conven-tion is required for a State maintaining a reserva-tion to become a party, and those who favoured amore liberal practice in regard to reservations.

Those in favour of adopting the system pro-posed by the ILC (see above) included the repre-sentatives of Australia, Brazil, Canada, Chile,China, Ethiopia, France, India, Norway, Pakistan,the Philippines, the United Kingdom and Yugo-slavia. Among the arguments advanced in favourof this procedure were the following. It was

Legal Questions 827

important to preserve the integrity of conventionsas drafted and not to allow them to be broken upinto a number of bilateral agreements. It wasinequitable that different States parties to thesame multilateral conventions should have differ-ent obligations; this would discourage States fromnegotiating and ratifying conventions. To allowreservations freely without the consent of allparties would result in confusion and uncertaintyas to the status of conventions, for example,whether they were or were not in force. IndividualStates should not be allowed to alter to suit theirown convenience texts which had already beennegotiated and agreed to by the majority of States.

To meet the criticism that this rule might oper-ate inequitably if a single State, by objecting to areservation, could exclude a reserving State andthereby frustrate the desires of a large majority ofthe parties who might be willing to accept thereservation, the United Kingdom representativesuggested the requirement of unanimous consentmight be replaced by one of acceptance by aqualified majority, such as three quarters or twothirds, of the States concerned. This suggestionwas favourably commented on by the representa-tives of Australia, Canada, Chile, Cuba, Indonesia,Iran and the Netherlands. It was opposed by therepresentatives of Belgium and Poland, who con-sidered that the same majority which had adoptedclauses in a convention to which the minorityobjected might prevent that minority from adher-ing to the convention. The United States repre-sentative stated that it would not meet the objec-tion that States objecting to a reservation coulddebar reserving States from becoming parties to aconvention. The Egyptian representative doubtedwhether the United Kingdom proposal could beapplied in practice.

Certain representatives, including those of Iranand Sweden, considered that the Secretary-Generalshould, at least for the time being, be asked tocontinue his prior practice, under which onlyStates which had ratified or acceded to a conven-tion and not signatory States had the right to ob-ject to reservations so as to prevent a reservingState from becoming a party.

Those in favour of adopting a more liberal prac-tice with regard to reservations and arguing againstthe adoption of the procedure advocated by theILC included the representatives of Argentina,Belgium, Bolivia, Colombia, Cuba, Czechoslovakia,the Dominican Republic, Ecuador, Egypt, El Sal-vador, Guatemala, Lebanon, Poland, Uruguay, theUSSR, the United States and Venezuela. They ad-vanced various different arguments among which

were the following. A more flexible system withregard to reservations was necessary to safeguardthe sovereign equality of States. Since conventionswere now adopted by a majority vote, the posi-tion of the minority would be safeguarded by en-abling it to make reservations. To adopt a flexiblesystem would make possible a greater acceptanceof conventions by a greater number of States, thuscontributing to the development of internationallaw. States needed to make reservations becauseof their different circumstances and constitutionalprocedures. One State should not be allowed toveto reasonable reservations to which other Statesmight agree.

The representatives of Czechoslovakia, Polandand the USSR considered that States, by virtueof their sovereignty, had an inalienable right tomake reservations. They stated that this was theexisting rule of international law. Since conven-tions were adopted by majority vote, States re-quired this right to protect their sovereignty. Anobjection to a reservation, in their view, wouldbe without legal effect and would be an attemptto interfere in matters exclusively within the com-petence of reserving States. The representative ofSyria also considered that States, by virtue of theirsovereignty, were entirely free to make any reser-vations to conventions which did not expresslypreclude reservations.

The representatives of Belgium, Bolivia, Guate-mala, Indonesia, Peru, Poland, the United States,Uruguay and Venezuela considered that a moregeneral application could be given to the princi-ples contained in the Court's opinion on the Geno-cide Convention—according to which a Statemaking a reservation which had been objected toby another State could nevertheless be a party to aconvention if its reservations were compatible withthe object and purpose of the convention. TheUnited States representative, while recognizingthat certain multilateral agreements, such as theUnited Nations Charter, did not admit of reserva-tions except with unanimous consent, consideredthat this principle should be applied to a largeclass of other conventions. The representative ofVenezuela thought that it should be applied toother multilateral conventions of a humanitariantype, the representative of Indonesia that it shouldbe applied to conventions negotiated outside theUnited Nations, and the representatives of Boliviaand Peru that it could be applied to law-makingtreaties.

The representatives of Czechoslovakia, the Do-minican Republic, the USSR and the United States,among others, considered that the effect of a re-


servation or an objection to it should not be de-cided upon by the Secretary-General but shouldbe left to be decided by the States concerned. TheUnited States representative held that a party hadalso the right to refuse to accept a reservationwhether or not it was incompatible with the ob-ject and purpose of the convention.

A number of representatives, including thoseof Argentina, Australia, Brazil, China, Cuba, theDominican Republic, Ecuador, France, the Neth-erlands, Norway, Pakistan, the United Kingdomand Yugoslavia, considered that the Court's Opin-ion should not be applied generally. It would, theyheld, be difficult to apply and would lead to con-fusion, since it would involve subjective determina-tion by individual States as to whether reserva-tions were or were not compatible with the objectand purpose of a convention.

Several representatives, including those of Ar-gentina, Bolivia, Colombia, Cuba, the DominicanRepublic, Ecuador, El Salvador, Guatemala, Uru-guay and Venezuela, argued in favour of the adop-tion of the system employed by the Organizationof American States (see above). In favour of thissystem, it was stated that it enabled more Statesto accede to conventions and thus contributed tothe development of international law and that,through the circulation of reservations, States wereenabled to judge whether to maintain them in theface of objections by other States.

Some representatives, including those of Aus-tralia, Brazil, Canada, Chile, France, India, Iranand the United Kingdom, maintained that althoughthis system might be suitable for a relatively homo-genous group like the Latin American States itwould not be suitable for a more loosely knit or-ganization like the United Nations. It was alsostated that the system had not, in fact, led to awide acceptance of multilateral conventions. Inreply to these objections, it was stated that such asystem was even more applicable to a more diverseorganization like the United Nations and that thesystem had enabled the Latin American States tomake a greater contribution to the developmentof international law than they would have doneunder the unanimity rule.

Some representatives, including those of Israel,Mexico and Peru, considered that it was impossi-ble to apply a single rule on reservations to allmultilateral conventions and thought that a care-ful study should be made to define categories ofconventions and establish rules applicable to each.

The representative of Greece doubted whetherany of the proposed rules constituted in all its de-

tails an existing rule of international law, and re-ferred to the great diversity of opinions expressed.He considered there were then no pressing prob-lems of objections to reservations making such arule necessary and was not in favour of attemptingto lay one down.

A number of representatives, including thoseof Australia, Burma, Chile, Ethiopia, Iran, Israel,Mexico, the Netherlands, Sweden, the UnitedKingdom and Yugoslavia, thought that the Assem-bly should not take a final decision on the matter,perhaps by a small majority, at its current session.They considered that further study might make itpossible to arrive at a rule combining the best fea-tures of those advocated so far and which couldobtain wide agreement. They were, therefore, infavour of referring the matter back to the Inter-national Law Commission to be dealt with in thecourse of the Commission's work on the codifica-tion of the law of treaties.

The representatives of Belgium, Brazil, Egypt,Greece and the United States were not in favourof referring the question back to the InternationalLaw Commission. They stated that since the ILChad already given its views on the question ofreservations and objections to them there was nopoint in referring the question back to the Com-mission since its members could hardly be expectedto change their views.

The representative of Iran pointed out that theCommission would in any case take up the subjectin the normal course of its work on the law oftreaties. The representative of Belgium consideredthat the Commission, in its work on the law oftreaties, should take the Assembly's discussions in-to consideration; he also suggested that it shouldconsider definitions of reservations, objections andconditions.

The representatives of Canada, Guatemala andthe United States were in favour of a final decisionat the current session. They stated that to postponethe matter might merely mean a repetition of thedebates of the last and current sessions. The rep-resentatives of Canada, Guatemala and Iraq werein favour of setting up a sub-committee to drafta resolution which a large majority of the Com-mittee could adopt.

b. RESOLUTIONS BEFORE THE SIXTH COMMITTEE

The Committee had before it a number of draftresolutions and amendments reflecting the variouspoints of view:

Legal Questions 829

(1) United States Draft Resolution andAmendments

The United States draft resolution (A/C.6/-L.188) would commend to all States the Court'sAdvisory Opinion, recommend to all organs of theUnited Nations that they be guided in their workby this Opinion, so far as applicable, and recom-mend that drafters of multilateral conventionsshould bear in mind the possible consideration ofa reservations clause. It would also authorize theSecretary-General :

(1) to provide administrative services in connexionwith the deposit of documents relating to ratifications,accessions or reservations (including objections thereto)without passing upon their legal effect; and

(2) to communicate the text of such documents toall States concerned, with a statement, when reservationsare involved, of his understanding: (a) that all Stateswhich have ratified or acceded and which have been noti-fied of a reservation will be considered as having accept-ed it unless they notify him of objections by a certaindate, and (b) that all States which later ratify or accedeand which have been notified of a reservation will beconsidered as having accepted it unless they notify himof objections when depositing their documents of rati-fication or accession.

The United States accepted the following amend-ments to this draft:

(a) A Lebanese amendment (A/C.6/L.189) to rec-ommend that the drafters of multilateral conventions, inthe light of the nature of particular conventions, shouldbear in mind the possibility of inserting either a reserva-tions clause or a clause precluding reservations.

(b) A joint amendment by Afghanistan, Egypt, Iraq,Lebanon, Saudi Arabia, Syria and Yemen (A/C.6/-L.200). This would redraft the second paragraph of thepreamble, delete the first two operative paragraphs, com-mending the Court's Opinion to States and recommend-ing that United Nations organs be guided by it, and re-draft the instructions to the Secretary-General to invitehim to continue to provide appropriate services in con-nexion with the deposit of documents relating to ratifi-cations, accessions or reservations (including objectionsthereto), without passing upon the legal effect of suchdocuments, and to communicate the text of such docu-ments to all States concerned, leaving it to each State todraw all the legal consequences from such communica-tion.

(c) An oral amendment to the joint amendment pro-posed on behalf of the sponsors by Egypt, to the effectthat the decision of any one State would not be sufficientto prevent the participation in the convention of a Statewhose reservations had been accepted.

These amendments were incorporated in a re-vised United States draft resolution (A/C.6/-L.188/Rev.1).

After the acceptance by the United States of theEgyptian oral amendment to the joint amendment,a joint amendment (A/C.6/L.191) submitted byArgentina, Bolivia, Colombia, Cuba, the Domini-can Republic, Ecuador, El Salvador and Honduraswas withdrawn.

This would have deleted the first two operative para-graphs and the part of the fourth paragraph concerningthe statement of the Secretary-General's understanding.It would have added a provision establishing the rules togovern the procedure applicable to, and the legal effectof reservations in conventions not containing preciseprovisions concerning them and of which the Secretary-General is the depositary. The rules proposed were thoseused by the Organization of American States. The Inter-national Law Commission would have been instructed totake these rules into account in its work on the codifica-tion of the law of treaties.

Two further amendments had been submittedto the original United States draft resolution(A/C.6/L.188), by the United Kingdom (A./C6/L.190) and by Venezuela (A/C.6/L.197/Rev.1).

( a ) The United Kingdom amendment (A/-C.6/L.190) would have:

(1) deleted the first operative paragraph, commend-ing the Court's Opinion to all States, and

(2) substituted for the recommendation that allStates should be guided by the Court's Opinion a rec-ommendation that they should be guided by the Com-mission's report.

These two provisions were withdrawn follow-ing the revision of the United States draft resolu-tion.

The other provisions of the United Kingdomamendments were applied to the revised UnitedStates draft resolution.

The first proposed that the reservations clause to beinserted should refer to the ILC's report and should beworded as recommended by the Commission to urge thatthe inclusion of reservations clauses should be consideredduring the drafting of conventions.

After the United Kingdom had agreed to deletethe reference to the ILC's report, this amendmentwas adopted by 24 votes to 15, with 7 abstentions.

Finally, the United Kingdom proposed that the Sec-retary-General should be requested to conform his prac-tice in relation to the Genocide Convention to the Court'sOpinion and to follow the procedure suggested by theILC in relation to other conventions of which he is thedepositary, subject to the provisions of the convent ionregulating reservations.

The first part of this amendment was adoptedby 23 votes to 14, with 12 abstentions, and thesecond was rejected by 29 votes to 11, with 8abstentions.

(b) The Venezuelan amendment (A/C.6/L.197) had originally been proposed to the firstIsraeli draft resolution (see below) but was latertransferred (A/C6/L.197/Rev.1) to the UnitedStates draft resolution and then to the revisedUnited States draft resolution.

It would recommend that all States be guided in re-gard to the Genocide Convention and other multilateralconventions of a humanitarian nature by the Court'sAdvisory Opinion.

The part referring to "other multilateral con-ventions of a humanitarian nature" was rejected


by 21 votes to 12, with 14 abstentions, and the re-mainder was adopted by 17 votes to 6, with 24abstentions.

Three further amendments were submitted tothe revised United States draft resolution by Ar-gentina, Belgium and Egypt jointly (A/C.6/L.202), by Iran (A/C.6/L.203) and by Poland(A/C.6/L.204).

(a) The joint amendment by Argentina, Belgiumand Egypt (A/C.6/L.202) would recommend that in thedrafting of multilateral conventions the desirability ofinserting either a reservations clause or a clause pre-cluding reservations should be borne in mind, in thelight of the nature of particular conventions.

This was withdrawn following the adoption ofthe United Kingdom amendment covering thispoint.

The joint amendment would also reword the instruc-tions to the Secretary-General to state that in respect offuture conventions concluded under United Nationsauspices and of which he is the depositary, he should:

(1) continue to exercise his functions as depositaryin connexion with the deposit of documents relating toratifications or objections to them, without pronouncingupon their legal effect; and (2) communicate the textof such documents to the States concerned, leaving it toeach State to draw the legal consequences from suchcommunication.

This part of the amendment was adopted in aseries of five votes, (1) (above) being adoptedby 30 votes to 16, with 2 abstentions, and (2 ) by28 votes to 17, with 3 abstentions.

A final phrase which would have stated that theSecretary-General should not however for the pur-poses of his action as depositary regard the de-cision of any one State as being able to debarStates formulating reservations from participationin the convention in relation to States which havenot objected thereto was rejected by a roll-callvote of 24 to 18, with 7 abstentions.

(b) The Iranian amendment (A/C.6/L.203) pro-posed:

(1) a recommendation on the insertion of a reserva-tions clause, worded in the same terms as a paragraph ofthe United Kingdom amendment which was adopted; and

(2) proposed to delete from the instructions to theSecretary-General the references to ratification, accessionsand objections to reservations.

It was withdrawn following the adoption of theUnited Kingdom amendment with regard to thefirst point and the joint amendment by Argentina,Belgium and Egypt with regard to the second.

(c) The Polish amendment (A/C.6/L.204) proposedto add the words "by any other State" at the end of theUnited States revised draft resolution.

It was not voted upon as the text to which itapplied was superseded by the adoption of thejoint amendment of Argentina, Belgium and Egypt.

The Committee adopted the revised UnitedStates draft resolution, as amended, by a roll-callvote of 23 to 18, with 7 abstentions.

It then decided by 22 votes to 18, with 2 ab-stentions, that this had disposed of all other draftresolutions and amendments on the subject andthat they did not therefore require to be voted on.

(2) Draft Resolutions Which Were WithdrawnThree of the other draft resolutions which had

been presented to the Committee had been with-drawn prior to the voting on the revised UnitedStates draft and the amendments to it. Thesewere:

(1) A draft resolution by Sweden (A/C.6/L.192).This had provided for a recommendation concerning theinsertion of a reservations clause in accordance with theILC's report and had called upon the Assembly to askthe Secretary-General, pending further Assembly action,to continue his prior practice with respect to reservations.

It was withdrawn on 3 January.(2) A draft resolution by Indonesia (A/C.6/L.196).

This, in its operative part, would have provided for arecommendation on the insertion of a reservations clausein the terms in which it was adopted by the Committee.It would have recommended that the rules proposed bythe International Law Commission should be followedwith regard to conventions, particularly those of a gen-eral humanitarian and social character, drafted and con-cluded under United Nations auspices, with the modi-fication that reservations should be admitted in the ab-sence of objection by a majority rather than in the ab-sence of objection by any of the States concerned.

The draft resolution also proposed that the Court'sOpinion should be taken as guidance and that the pro-cedural rules suggested by the International Law Com-mission should be applied to conventions negotiated out-side the framework of the United Nations. The rulesproposed by the ILC, as modified, should, it was sug-gested, be applied to the Genocide Convention.

This draft resolution was withdrawn on 4January.

(3) A draft resolution by Iraq (A/C.6/L.199). Itwould have provided that the agenda item should bereferred to a seven-member sub-committee, which wouldstudy the question thoroughly in the light of the SixthCommittee's discussions and would report to the Com-mittee within two weeks.

It was withdrawn on 20 December.(3) Other Proposals before the Sixth Committee

When the Sixth Committee decided, followingits adoption of the amended, revised United Statesdraft resolution, not to vote on any other draftresolutions or amendments it had before it twodraft resolutions proposed by Israel (A/C.6/L.193/Rev.1. and A/C.6/L.194) with an amend-ment to the second proposed by Iran (A/C.6/L.195), and a joint draft resolution proposed byDenmark, India, Iran, Israel, Mexico, the Nether-lands, Peru and Sweden (A/C.6/L.198).

Legal Questions 831

(1) The first Israeli draft resolution, as revised(A/C.6/L.193/Rev.1), would recommend that all Statesbe guided by the Court's Opinion in regard to theGenocide Convention and would instruct the Secretary-General to conform his practice to the Opinion in rela-tion to this Convention. It would also, in its unrevisedform, have instructed him to continue as hitherto toexercise his functions of depositary, subject to the pro-visions of particular conventions, and to consult theAssembly and the States concerned if and when diffi-culties arose.

(2) The second Israeli draft resolution (A/C.6/L.194) in its operative part, would express apprecia-tion of the work of the International Law Commissionand call its report on reservations to the attention ofStates and international diplomatic conferences. It wouldhave provided for a recommendation on the insertionof a reservations clause in the terms in which it wasadopted by the Sixth Committee. It would also requestthe ILC to include in its report on the law of treaties achapter concerning the functions, rights and duties of thedepositary of international conventions and would havethe Assembly resolve to consider further the Commis-sion's report on reservations when its report on the lawof treaties was submitted.

(a) The Iranian amendment (A/C.6/L.195) wouldadd to this draft a paragraph requesting the ILC to re-examine the question of the rights and duties of the de-positary of multilateral conventions, taking into accountthe opinions expressed in the Assembly, more especiallywith regard to the Court's Opinion.

(3) The joint draft resolution by Denmark, India,Iran, Israel, Mexico, the Netherlands, Peru and Sweden(A/C.6/L.198) would also express appreciation of theILC's work and provide for a recommendation on theinsertion of a reservations clause in the terms in whichit was adopted by the Sixth Committee. It would requestthe ILC to examine further the question of reservationsto multilateral conventions when preparing its codifica-tion of the law of treaties, and would resolve to givefurther consideration to the Commission's report onreservations when its report on the law of treaties wassubmitted to the Assembly. It would invite the Secretary-General, pending further Assembly action, to continuehis prior practice with respect to the receipt and noti-fication of reservations "without prejudice to the legaleffect of objections to reservations."

The Committee had previously voted by 25votes to 22, with 2 abstentions, at its 274th meet-ing on 20 December 1951 not to give priority inthe voting to this joint draft resolution.

(4) Canada submitted a memorandum (A/C.6/L.201) for the record, suggesting a set of rules for dealingwith reservations to conventions and objections to them.The memorandum proposed that the act, which wouldnormally bind a state but which could not be immediate-ly effective because accompanied by a reservation, shouldbe recorded on a "suspense register".

The representative of Canada stated that it washoped the memorandum might be useful as aworking paper for the International Law Com-mission when it reconsidered the question.

c. CONSIDERATION BY THE GENERALASSEMBLY IN PLENARY SESSION

When the Sixth Committee's report (A/2047)was considered at the Assembly's 360th plenarymeeting, the Netherlands proposed an amendment(A/2055) to the draft resolution proposed by theCommittee (see below).

This would add two paragraphs to the preamble:(1) referring to the widely divergent views expressed

in the Sixth Committee and the strong desire to findrules which might be acceptable to the great majority ofStates, and

(2) stating that it would be desirable that the Inter-national Law Commission, while codifying the law oftreaties, should re-examine the question of reservationswith due regard to opinions expressed in the Committee'sdiscussions, in order to formulate new rules for thefuture.

In the operative part it would:(1) add a provision stating that, pending further

Assembly action, the Secretary-General should continueto follow his prior practice with respect to reservationswithout prejudice to the legal effect of objections tothem;

(2) re-number the sub-paragraphs;

(3) in paragraph 3 (b) of the draft resolution (seebelow) add after the word "depositary" the words "inthe absence of any contractual provisions to the con-trary";

(4) delete the words "to continue" in sub-paragraph(i) of the draft; and

(5) add two further paragraphs to ask the Inter-national Law Commission to examine further the ques-tion of reservations in the light of the considerations inthe draft resolution when it is preparing its codificationof the law of treaties; and to have the Assembly resolveto consider further the Commission's report on reserva-tions when the report of the law of treaties was sub-mitted to it.

The representatives of France, the Netherlands,the United Kingdom and Yugoslavia spoke infavour of the amendment. They stated that theSixth Committee's draft resolution by leaving itto each State, with respect to future conventions,to draw the legal consequences from communica-tions concerning reservations and objections tothem would lead to a state of confusion and legalanarchy. It was particularly important that thereshould be certainty as to which States were or werenot parties to conventions. The uncertainty result-ing from the absence of any objective determina-tion as to which States were parties to conventionswould be harmful to the development of inter-national law. The draft resolution, moreover, mightmake impossible one of the Secretary-General'sessential functions of a depositary—that of statingwhen a convention entered into force and when itwas terminated.


The representative of Yugoslavia opposed theSixth Committee's draft resolution, in particular,as not answering the Secretary-General's questionas to how to proceed in the case of the GenocideConvention. It instructed him to conform his prac-tice to the Court's Advisory Opinion, but thatOpinion had stated that it would be necessary todecide whether reservations were compatible withthe object and purposes of the Convention. If theSecretary-General were to settle such questions hewould be going beyond his purely administrativefunctions. Moreover, the Yugoslav representativeconsidered the Genocide Convention did not allowfor reservations.

The representatives of Burma and Iraq alsospoke in favour of the Netherlands amendment.The representative of Iraq stated that he had sup-ported the Sixth Committee's draft resolution asomitting everything in favour of one system oranother and leaving the door open for further con-sideration. The representative of Burma stressedthe importance of finding a rule acceptable to thegreat majority of States.

The representatives of Belgium, Bolivia andEgypt spoke in favour of the Sixth Committee'sdraft resolution and opposed the Netherlandsamendment. They stated that there was no pointin referring the question back to the InternationalLaw Commission, which had already stated itsopinion in favour of the unanimity rule which themajority of Members had rejected in the SixthCommittee. The ILC could not be expected toreverse itself. The proposal to refer the questionback to the Commission was merely intended todelay a decision. The Sixth Committee's decision,these representatives stated, had been taken by asufficiently large majority, and it was impossibleat this stage to obtain a great majority of Statesin favour of any rules on a delicate question ofthis kind.

The representative of Bolivia said that he wouldhave preferred the draft resolution to have statedthat a mere objection by one State could not bara reserving State from becoming a party to a con-vention. However, the Sixth Committee's draftresolution provided a flexible formula and didaway with the unanimity rule which the majorityof States did not want.

The Netherlands amendments were rejected inparagraph-by-paragraph votes. The amendmentsto the preamble were rejected by 27 votes to 23,with 5 abstentions; the first two amendments tothe operative part were rejected by 29 votes to20, with 5 abstentions; the third by 24 votes to23, with 8 abstentions; the fourth by 25 votes to19, with 8 abstentions; and the fifth by 26 votesto 22, with 6 abstentions.

After adopting paragraph 3 (b ) of the Commit-tee's draft resolution by 32 votes to 18, with 4abstentions, the Assembly adopted the resolutionas a whole by 32 votes to 17, with 5 abstentions asresolution 598(VI). It read:

''The General Assembly,

"Bearing in mind the provisions of its resolution 478(V) of 16 November 1950, which (1) requested theInternational Court of Justice to give an advisory opinionregarding reservations to the Convention on the Preven-tion and Punishment of the Crime of Genocide and (2 )invited the International Law Commission to study thequestion of reservations to multilateral conventions,

"Noting the Court's advisory opinion of 28 May 1951and the Commission's report, both rendered pursuant tothe said resolution,

"1. Recommends that organs of the United Nations,specialized agencies and States should, in the course ofpreparing multilateral conventions, consider the insertiontherein of provisions relating to the admissibility or non-admissibility of reservations and to the effect to be at-tributed to them;

"2. Recommends to all States that they be guided inregard to the Convention on the Prevention and Punish-ment of the Crime of Genocide by the advisory opinionof the International Court of Justice of 28 May 1951;

"3. Requests the Secretary-General:"(a) In relation to reservations to the Convention on

the Prevention and Punishment of the Crime of Geno-cide, to conform his practice to the advisory opinion ofthe Court of 28 May 1951;

"(b) In respect of future conventions concludedunder the auspices of the United Nations of which heis the depositary:

"(i) To continue to act as depositary in con-nexion with the deposit of documentscontaining reservations or objections,without passing upon the legal effect ofsuch documents; and

"(ii) To communicate the text of such docu-ments relating to reservations or objec-tions to all States concerned, leaving itto each State to draw legal consequencesfrom such communications."

Legal Questions 833

F. THE QUESTION OF DEFINING AGGRESSION

At its fifth session, the General Assembly, inresolution 378 B (V),22 referred a proposal con-cerning the definition of "the concept of aggres-sion", submitted by the USSR in connexion withthe agenda item "Duties of States in the event ofan outbreak of hostilities", and the records of theFirst Committee dealing with the question to theInternational Law Commission (ILC) "so that thelatter may take them into consideration and form-ulate its conclusions as soon as possible".

1. Report by the International LawCommission

The International Law Commission studied thematter at its third session, held from 16 May-27July 1951. In its report to the General Assembly(A/1858), it stated that some of its members wereof the opinion that the Assembly's resolution mere-ly meant that the ILC should take the Soviet pro-posal and the discussions on it into considerationwhen preparing the draft code of offences againstthe peace and security of mankind. The majority,however, considered that the Commission had beenrequested by the Assembly to attempt to defineaggression and to report on the result of its efforts.

A report entitled "The Possibility and Desir-ability of a Definition of Aggression" was pre-sented to the Commission by Mr. Spiropoulos, thespecial rapporteur on the draft code of offences(A/CN.4/44). This report, after surveying pre-vious attempts to define aggression, stated thatwhenever Governments were called upon to decideon the existence or non-existence of "aggressionunder international law" they based their judg-ment on criteria derived from the "natural" notionof aggression. This notion, it was stated, containedboth objective and subjective elements: the factthat a State had been the first to commit an act ofviolence and that it had been committed with anaggressive intention. The kind and degree ofviolence which constituted aggression depended,however, on the circumstances in the particularcase. Mr. Spiropoulos concluded that the "naturalnotion" of aggression was a concept in itself andnot susceptible of definition. He considered thata legal definition would be an artificial construc-tion which could never be comprehensive enoughto comprise all imaginable cases of aggression, themethods of which were constantly evolving.

Memoranda on the subject were also presentedby Mr. Amado (A/CN.4/L.6 and Corr.1) and

Mr. Alfaro (A/CN.4/L.8). Both stated that adefinition of aggression based on an enumerationof aggressive acts could not be satisfactory. Eachproposed a general and flexible formula.23

Mr. Yepes submitted a proposal (A/CN.4/L.7)for determining aggression by the enumerativemethod, but later submitted a further proposal(A/CN.4/L.12) to define it in general terms. Aproposal was also submitted by Mr. Hsu (A/CN.4/L.11 and Corr.1) in which particular stress waslaid on indirect aggression, and a draft was sub-mitted by Mr. Cordova (A/CN.4/L.10) of aprovision for inclusion in the draft code of offencesto make aggression and the threat of aggressionoffences under the code.

The Commission considered it undesirable todefine aggression by a detailed enumeration ofaggressive acts since no enumeration could beexhaustive. It was also thought inadvisable undulyto limit the freedom of judgment of the competentUnited Nations organs by a rigid and necessarilyincomplete list of acts constituting aggression. TheILC therefore decided to aim at a general andabstract definition.

Taking as a basis the definition proposed byMr. Alfaro as the broadest general definition be-fore it, the Commission amended it to include in-direct aggression and the threat as well as the useof force. On this point, opinion was divided, somemembers considering that the threat of forceamounted only to a threat of aggression. The def-inition, as revised by the Commission, read asfollows:

"Aggression is the threat or use of force by aState or government against another State, in anymanner, whatever the weapons employed andwhether openly or otherwise, for any reason or forany purpose other than individual or collectiveself-defence or in pursuance of a decision or rec-ommendation by a competent organ of the UnitedNations."

Some members of the Commission consideredthis definition unsatisfactory as not comprehendingall conceivable acts of aggression and as liable torestrict unduly the necessary freedom of action ofUnited Nations organs. The Commission rejectedthe definition by 7 votes to 3, with 1 abstention.It rejected, by 6 votes to 4, with 1 abstention, a

22 See Y.U.N., 1950, p. 213-23

For texts of the definitions suggested see GeneralAssembly, Official Records: Sixth Session, SupplementNo. 9. (A/1858), pp. 8-10.


proposal to make further attempts to define ag-gression on the basis of each of the texts sub-mitted by other members.

The question was later reconsidered at the re-quest of Mr. Scelle (A/CN.4/L.19 and Corr.1),who submitted a general definition and proposedthat aggression should be explicitly declared anoffence against peace and security. On the basisof this and other proposals, the Commission in-serted the following provisions in article 2 of thedraft Code of Offences against the Peace and Se-curity of Mankind:24

"The following acts are offences against the peace andsecurity of mankind:

"(1) Any act of aggression, including the employ-ment by the authorities of a State of armed force againstanother State for any purpose other than national or col-lective self-defence or in pursuance of a decision or rec-ommendation by a competent organ of the UnitedNations.

"(2) Any threat by the authorities of a State to resortto an act of aggression against another State."


a. GENERAL DISCUSSION IN THE SIXTHCOMMITTEE

The Sixth Committee discussed the question ofdefining aggression at its 278th to 295th meetingsfrom 5-22 January 1952.

The Committee's discussions were concernedprimarily with the question as to whether it waspossible and desirable to define aggression.

Some representatives, in particular those ofAustralia, Belgium, Greece, India, the UnitedKingdom and the United States, thought that theGeneral Assembly should not attempt to formulatea definition of aggression, holding that no satis-factory definition could be found. In this conne-xion, the representative of Greece put forward theview he had expressed in the International LawCommission that aggression was a "natural notion"which did not lend itself to definition.

These representatives argued that a definitionattempting to enumerate all possible acts of ag-gression would necessarily leave out some actswhich ought to be included, and would thus bepositively dangerous. Attention was drawn to theconstant state of evolution of acts of aggression,and also to the importance of indirect aggressionby subversive action. To adopt an incompleteenumeration, it was stated, would constitute aninvitation to potential aggressors by showing themhow they could accomplish their aims without

actually being branded as aggressors, since theycould avoid coming within the letter of the defini-tion and claim that they were technically justified.

An abstract and general formula, on the otherhand, it was stated, would use terms which them-selves required definition and would be too wideand vague to be useful. To combine the enumera-tive and abstract methods would, it was stated bythe representatives of Belgium and the UnitedKingdom, only cumulate their disadvantages.

Those representatives opposing a definition con-sidered that, in accordance with the Charter, theUnited Nations organs called on to determine theaggressor in case of international conflict shouldhave full discretion to consider all the circum-stances of each case. It was necessary to take ac-count of the circumstances in order to judgewhether there was aggressive intent; a similar actmight in one case constitute aggression and inanother be a legitimate measure of self-defence.This distinction could not be provided for in adefinition, which might also include certain actswhich, if considered in their proper context, wouldnot be considered by the international communityas acts of aggression at all. Moreover, it was con-sidered, a definition might actually hamper theSecurity Council by causing less stress to be placedon acts not included in it and by giving an oppor-tunity to an aggressor State to cause delays.

In certain cases, where acts of aggression hadoccurred, the representatives of Belgium and theUnited Kingdom considered, it might also bepolitic to refrain from naming a State an aggressorif there seemed to be a prospect of a just settle-ment without recourse to hostilities; this would bedifficult if certain acts were listed in advance asconstituting aggression. Other representatives, inparticular the representative of the USSR, opposedthis view, stating that it was equivalent to con-doning aggression.

Some representatives, while not opposed in prin-ciple to the continuance of efforts to reach a def-inition, were doubtful of its value, or consideredthat the political situation of the world made it atany rate inopportune to undertake the task ofdefining aggression for the time being. These in-cluded the representatives of Argentina, Brazil,Canada, Denmark, Israel, the Netherlands, thePhilippines, Sweden and Uruguay.

Certain representatives, including those of Israel,Uruguay, the United Kingdom and the UnitedStates, emphasized that what was needed was notto define aggression but to ensure that it should

24 For draft code of offences, see p. 842.

Legal Questions 835

be overcome through the application of the prin-ciples of the Charter and the provisions of theAssembly's resolutions. The representative of Uru-guay, in particular, stated that what was necessarywas for the Security Council to put an end toviolence and for disputes to be submitted to ar-bitration or judicial procedure.

On the other hand, a large number of repre-sentatives took the view that a definition was pos-sible, and was necessary or highly desirable fromthe legal and political standpoints. These includedthe representatives of Afghanistan, Bolivia, Burma,the Byelorussian SSR, Chile, Colombia, Cuba,Czechoslovakia, the Dominican Republic, Egypt,France, Iran, Indonesia, Lebanon, Mexico, Pakistan,Peru, Poland, Syria, the Ukrainian SSR, the USSRand Yugoslavia. In the opinion of these repre-sentatives, a definition would be a great step for-ward in international law and would also providea useful guide for the United Nations organs calledupon to determine whether aggression had beencommitted and assist in avoiding arbitrary de-cisions. It was emphasized particularly that, al-though a definition would not do away with ag-gression, it would act as a deterrent to potentialaggressors and would also serve to mobilize publicopinion against an aggressor. It was also statedthat a definition would be a useful supplement tothe system of collective security established by theCharter and would be a logical completion of theCharter's provisions. Even an imperfect definition,it was argued by the representatives of Burma,Chile, Egypt and Yugoslavia, among others, wasbetter than none, and any imperfections could beremedied as they were discovered.

Some representatives, including those of theByelorussian SSR, Czechoslovakia, Egypt, Poland,the Ukrainian SSR and USSR, were of the opinionthat a definition should be formulated with a viewto furnishing guidance to the Security Council andthe General Assembly in their task of maintaininginternational peace and security. It was pointedout, for example by the representative of Mexico,that the adoption of a definition would not pre-vent the international organ applying it from tak-ing into account the circumstances of each partic-ular case.

Others, in particular the representative of Franceand also the representatives of Iraq, the Nether-lands, Norway and Sweden, thought that theprimary purpose to be envisaged was the inclusionof a definition in a code of offences against thepeace and security of mankind, which would beapplied by an international criminal tribunal if

one were created. In this connexion, the repre-sentative of France drew a distinction between thepolice activity of the Security Council aimed atputting an end to an act of aggression, in whichcase a definition would be useful but not binding,and the judicial determination of an aggressor byan international court, on which it would bebinding.

Some representatives, including those of Burma,the Dominican Republic, Ecuador, Iran and Le-banon, thought that a definition should both serveas guidance to the United Nations organs and beincluded in an international code.

As to the kind of definition to be drafted, therepresentatives of the Byelorussian SSR, Czecho-slovakia, Poland and the USSR thought it desir-able to enumerate all the objective acts which con-stituted aggression, to specify the circumstanceswhich could not be used to justify attacks, and tolist the measures which might be taken by a Statethreatened with an attack. A satisfactory definitionof this kind, these representatives held, could beworked out by the combined efforts of the SixthCommittee, and would have great advantages ofclarity and ease of application. Reference wasmade, in particular, to the definition proposed bythe USSR at the London Disarmament Conferenceof 193.3 (known as the Litvinov definition), andto the so-called Litvinov-Politis definition whichhad been adopted on the basis of the USSR pro-posal by the Committee for Security Questions ofthat Conference comprising representatives ofseventeen States and which was incorporated inbilateral agreements between the USSR and elevenStates. Certain representatives, however, including,in particular, those of Belgium, the Netherlandsand the United States, stated that these agreementshad not in practice prevented aggression.

The representatives of Egypt, Iran and Mexicoapproved especially the proposal made in the USSRdraft resolution (see below) that a list of circum-stances not justifying attacks should be included.The USSR representative stated that the circum-stances included in this list were those which hadbeen used by aggressors to justify their acts. TheUnited Kingdom representative expressed the fearthat such a list would constitute an invitation toStates that they could commit the illegal acts men-tioned without fear of armed retaliation. The rep-resentatives of Egypt, Lebanon and Mexico con-sidered that such illegal acts should call for UnitedNations action.

Varying views were expressed on whether par-ticular circumstances gave rise to a right to use


force in self-defence, although it was generallyagreed that the question of what constituted legiti-mate self-defence and what constituted aggressionwere inextricably connected.

On the one hand, the representatives of Bolivia,Burma, Egypt, Lebanon, Mexico and Syria statedthat, under the collective security system of theUnited Nations, the question of what was legi-timate self-defence was no longer a matter to bedecided by individual States. Armed force, it wasstated, was only permissible to meet an act ofaggression, and it should be conditioned by thenature of the attack. It should not enable a State,it was emphasized, to invade the territory of an-other State.

On the other hand, the representatives of Bel-gium, Greece, the United Kingdom and the UnitedStates considered that, in certain particular cir-cumstances, a State which was threatened by im-pending attack would be justified in attacking firstin self-defence. The representatives of Poland, theUkrainian SSR and the USSR, stressing that ag-gressors had always justified their aggression asself-defence, considered that such a doctrineamounting to the right to wage "preventive war"was equivalent to condoning aggression. In theiropinion, a threatened State could have recourse todiplomatic and other measures of peaceful settle-ment and could mobilize its forces, but could notcross the frontier.

The representatives of China and the Nether-lands considered that victims of indirect aggressioncould exercise their right of self-defence in thesame way as victims of direct aggression.

To meet the point that some objective acts con-stituting aggression might be overlooked in anattempt at exhaustive enumeration, it was sug-gested by the representatives of Bolivia, Burma,Chile, Colombia, Cuba, the Dominican Republic,Mexico and Yugoslavia that a provision might beincluded that additional acts might be qualified asaggressive by the competent organs of the UnitedNations. In this connexion, reference was madeto the Inter-American Treaty of Mutual Assistancesigned in Rio de Janeiro in 1947, which containssuch a formula.

It was also suggested by the representatives ofBolivia, China, Colombia, Cuba, Ecuador, Iran,Lebanon, Pakistan and Saudi Arabia, among others,that the dangers of omissions could best be rem-edied by the inclusion in the definition of a gen-eral formula in addition to a list of examples ofacts of aggression. The general formula, it wasargued, would serve as a safeguard, as new cases

falling within the general principles enunciatedcould always be determined by the organs calledupon to apply the definition.

Some representatives, including those of Bolivia,Chile and Mexico, thought that any act includedin the list of examples should always be deemedaggressive. The representative of Lebanon thoughtthat the list should be merely indicative, and pre-ferred to reserve for the organ applying the defini-tion the discretion to decide that a particular casecovered by an example did not constitute aggres-sion.

The representatives of Cuba, Lebanon, Mexicoand the Philippines favoured the inclusion in adefinition of aggression of some provision con-cerning the intent with which the aggressive actsconcerned were committed.

It was suggested by the representative of Peruthat the rejection by one of the parties to a con-flict of measures recommended by an internationalorgan to put an end to hostilities was an importantcircumstance which that organ should consider indetermining the aggressor.

The representatives of Bolivia, China, the Do-minican Republic, Indonesia, the Netherlands,Pakistan and Yugoslavia thought a definitionshould include indirect aggression by such meansas subversion and economic pressure, as well asthe illegal use of armed force. This view wasopposed by the representatives of Czechoslovakia,Egypt, Poland and the USSR, who held that in-direct aggression was a fictitious concept whichfound no support in the letter or the spirit of theCharter.

As to the practical course by which a definitioncould be formulated, the representatives of Bolivia,Burma, the Byelorussian SSR, Czechoslovakia,Egypt, Indonesia, Pakistan, Poland, the UkrainianSSR and the USSR preferred that the GeneralAssembly should adopt one at its current session.Towards the end of the discussions the majorityof the Committee wished the attempt to formu-late a definition to be continued but felt that somuch time had been devoted to preliminary ques-tions that it was impossible to devote sufficientstudy to the various draft definitions presented.

The representatives of Chile, Mexico and Swe-den favoured referring the question back to theInternational Law Commission. The representativeof Colombia, supported by the representative ofEcuador, advocated the appointment of a specialcommittee to study the problem carefully and re-port to the General Assembly at its next session.The representatives of Argentina, Canada, France,

Legal Questions 837

Iran and Venezuela preferred to obtain the con-sidered written opinions of Member Governments,and to take the question up again at the next ses-sion. It was felt that a report by the Secretary-General, in which the question would be discussedin the light of the Sixth Committee's debates andthe drafts submitted would be useful when theAssembly reconsidered the question.

b. DRAFT RESOLUTIONS BEFORE THE SIXTHCOMMITTEE

The Committee had before it the followingdraft resolutions and amendments, representingthe various points of view expressed.

(1) Greek Draft Resolution

This draft resolution (A/C.6/L.206) would state thatit was apparently impossible to define aggression in aformula covering all possible cases, that the formulationof an incomplete definition might encourage a possibleaggressor to evade it and that the existence of such adefinition might create doubt and confusion and delay thetaking of a decision by the General Assembly or theSecurity Council if called upon in the future to determinean aggressor. It would also state that a definition ofaggression drafted by the Assembly would not be bindingon the Security Council and could not therefore restrictthe Council's freedom to decide at its discretion whatconstituted aggression. For these reasons, the draft resolu-tion would state that it appeared inappropriate to attemptto define aggression. It would therefore have the Assem-bly decide to take no action on the USSR proposal con-cerning the definition of aggression and leave it to thecompetent United Nations organs to determine at theirdiscretion what constituted aggression.

(2) USSR Draft Resolution

This draft resolution (A/C.6/L.208) wouldhave the Assembly declare:

"1. That in an international conflict that State shallbe declared the attacker which first commits one of thefollowing acts:

"(a) Declaration of war against another State;"(b) Invasion by its armed forces, even without a

declaration of war, of the territory of another State;"(c) Bombardment by its land, sea or air forces of

the territory of another State or the carrying out of adeliberate attack on the ships or aircraft of the latter;

" ( d ) The landing or leading of its land, sea or airforces inside the boundaries of another State without thepermission of the Government of the latter, or the viola-tion of the conditions of such permission, particularly asregards the length of their stay or the extent of the areain which they may stay;

"(e) Naval blockade of the coasts or ports of an-other State;

"(f) Support of armed bands organized in its ownterritory which invade the territory of another State, orrefusal, on being requested by the invaded State, to takein its own territory any action within its power to denysuch bands any aid or protection;

"2. Attacks such as those referred to in paragraph 1may not be justified by any arguments of a political,strategic or economic nature, or by the desire to exploitnatural riches in the territory of the State attacked or toderive any other kind of advantages or privileges, or byreference to the amount of capital invested in the Stateattacked or to any other particular interests in its terri-tory, or by the affirmation that the State attacked lacksthe distinguishing marks of statehood;

In particular, the following may not be used as jus-tifications for attack:

"A. The internal position of any State; as, forexample :

"(a) The backwardness of any nation politically, eco-nomically or culturally;

"(b) Alleged shortcomings of its administration;"(c) Any danger which may threaten the life or

property of aliens;"(d) Any revolutionary or counter-revolutionary

movement, civil war, disorders or strikes;"(e) The establishment or maintenance in any State

of any political, economic or social system;

"B. Any acts, legislation or orders of any State, asfor example:

"(a) The violation of international treaties;"(b) The violation of rights and interests in the

sphere of trade, concessions or any other kind of eco-nomic activity acquired by another State or its citizens;

"(c) The rupture of diplomatic or economic rela-tions;

"(d) Measures in connexion with an economic orfinancial boycott;

"(e) Repudiation of debts;"(f) Prohibition or restriction of immigration or

modification of the status of foreigners;"(g) The violation of privileges granted to the offi-

cial representatives of another State;"(h) Refusal to allow the passage of armed forces

proceeding to the territory of a third State;"(i) Measures of a religious or anti-religious nature;" ( j ) Frontier incidents;

"3. In the event of the mobilization or concentrationby another State of considerable armed forces near itsfrontier, the State which is threatened by such action shallhave the right of recourse to diplomatic or other meansof securing a peaceful settlement of international disputes.It may also in the meantime adopt requisite measures ofa military nature similar to those described above, with-out, however, crossing the frontier."

Two amendments were proposed to the USRRdraft:

(a) An amendment by Colombia (A/C.6/L.210), would:

(1) insert a declaration that aggression was anoffence against the peace and security of mankind, whichconsisted in any resort to force contrary to the provisionsof the Charter of the United Nations for the purpose ofmodifying the state of positive international law inforce or resulting in the disturbance of public order;

(2) state that, "apart from action which may be de-fined as aggression by the competent organs of the United


Nations", in an international conflict that State shouldbe declared the attacker which, "if not acting in pur-suance of instructions by the United Nations", first com-mitted one of the enumerated acts; and

(3) provide that a State which was threatened mightalso in the meantime adopt requisite measures of a mili-tary nature similar to those described, without, however,crossing the frontier "unless it is acting in self-defenceor on the authority of the United Nations".

(b) An amendment by Egypt (A/C.6/L.213and Corr.1) would:

(1) insert a new preamble and a declaration that anyact whereby a State infringed the territorial integrity orpolitical independence of another State constituted ag-gression;

(2) state that in any international dispute, situationor conflict that State should be declared the attacker whichfirst committed, "inter alia", one of the enumerated acts;and

(3) add a new provision stating that the exercise ofthe right of self-defence referred to in Article 51 of theCharter should not be deemed to be an act of aggression.

(3) Bolivian Draft Resolution

This draft resolution (A/C.6/L.211) wouldhave the Assembly resolve:

(1) that apart from the determination of acts ofaggression by the competent organs of the United Na-tions, an aggression should in all cases be considered tohave been committed when any State invaded the terri-tory of another State, crossing the frontiers establishedby treaty or by judicial or arbitral decisions and de-marcated in accordance therewith, or when, in the ab-sence of frontiers thus demarcated, the invasion affectedthe territories under the effective jurisdiction of a State;

(2) that a declaration of war, an armed attack byland, sea or air forces against the territory, ships or air-craft of another State and support given to armed bandsfor the purposes of invasion, as well as action taken bya State, overtly or covertly, to incite the people of an-other State to rebellion with the object of changing thepolitical structure for the benefit of a foreign Power,should also be qualified as aggressive acts;

(3) that any threat or use of force against the terri-torial integrity or political independence of any State, orany threat or use of force which is in any other way in-compatible with the purposes of the United Nations, in-cluding unilateral action to deprive a State of the eco-nomic resources derived from the fair practice of inter-national trade, or to endanger its basic economy, thusjeopardizing the security of that State or rendering itincapable of acting in its own defence and co-operatingin the collective defence of peace, should also be con-sidered as an aggressive act; and

(4) that apart from the cases described in paragraphs(1) and (2), which should justify the automatic exer-cise of the right of collective self-defence, other acts ofaggression should be determined when they occurred bythe competent organs established under the Charter of theUnited Nations in accordance with its provisions.

(4) Joint Draft Resolution by France, Iranand Venezuela

This draft resolution (A/C.6/L.209) had apreamble in five paragraphs which would state:

(1) that the question of defining aggression had beenreferred to the ILC by the General Assembly at its fifthsession;

(2) that the Commission had not furnished an ex-press definition but had merely included aggression in itsdraft Code of Offences against the Peace and Securityof Mankind;

(3) that the problem of defining aggression was im-portant for the development of international criminallaw;

(4) that the General Assembly had decided not toexamine the draft Code at its sixth session and had in-cluded it in the provisional agenda of its seventh session;and

(5) that the problem of defining aggression hadimportant political aspects.

The operative part provided that the GeneralAssembly would:

(1) decide to study the question of defining aggres-sion when it examined the draft Code of Offences againstthe Peace and Security of Mankind; and

(2) request Member States, when transmitting theirobservations on the draft Code to the Secretary-General,to give in particular their views on the problem of defin-ing aggression.

The following amendments were submitted tothe joint draft resolution:

(a) By India (A/C.6/L.212).It proposed to substitute for the third paragraph of

the preamble a paragraph stating that the problem ofdefining aggression was within the scope of internationalcriminal law.

(b) By Colombia (A/C6/L214/Rev.1). Itwould :

(1) substitute for the first paragraph of the operativepart a paragraph whereby the General Assembly woulddecide to include the question of defining aggression inthe agenda of its seventh session; and

(2 ) add two new paragraphs to the operative part,providing for the appointment of a special committee offifteen members, to meet at the Headquarters of theUnited Nations, to consider the records of the debatesin the First and Sixth Committees on the question ofdefining aggression and the draft resolutions, amend-ments and other documents relating to this question, tostudy the problem further, and to submit a draft defini-tion of aggression, together with a report, to the Assem-bly's seventh session.

c) By Syria (A/C.6/L.215). It would:(1) replace the third paragraph of the preamble with

a paragraph stating that, although the notion of aggres-sion might be inferred from the circumstances peculiarto each case, it was nevertheless desirable, for the develop-ment of international criminal law, to define aggressionby reference to the elements which constituted it;

(2) delete the fourth paragraph of the preamble;(3) replace the fifth paragraph of the preamble with

a paragraph stating that it would be of definite advantageif directives were formulated for the future guidance ofsuch international bodies as might be called upon todetermine the aggressor;

Legal Questions 839

(4) add to the first operative paragraph an instruc-tion to the Secretary-General to submit to the GeneralAssembly at its seventh session a report in which thequestion of defining aggression should be thoroughly dis-cussed in the light of the views expressed in the SixthCommittee at the sixth session and which should dulytake into account the draft resolutions and amendmentssubmitted concerning the question; and

(5) amend the second operative paragraph to requestMember States to communicate to the Secretary-General,if they considered it advisable, their observations or viewson the question of defining aggression.

Mexico submitted a sub-amendment (A/C.6/L.216)to the Syrian amendment, proposing to replace the thirdparagraph of the preamble with a paragraph stating thatalthough the existence of the offence of aggression mightbe inferred from the circumstances peculiar to each par-ticular case, it was nevertheless possible and desirable,for the development of international criminal law, todefine aggression by reference to the elements whichconstituted it.

The representative of Mexico accepted amend-ments to his sub-amendment proposed orally byBelgium and Lebanon, jointly, and by Egypt. Thefirst substituted the word "crime" for the word"offence"; and the second inserted the words "witha view to ensuring international peace and se-curity and" after the words "possible and desir-able".

The Mexican amendment as thus modified wasaccepted by Syria.

The Committee decided to vote first on the jointdraft resolution and the amendments to it.

It adopted the first paragraph of the Colombianamendment by 28 votes to 14, with 6 abstentions,but rejected the second paragraph (providing fora special committee), by 33 votes to 5, with 10abstentions.

The first paragraph of the Syrian amendment,as modified, was adopted by 25 votes to 24, withone abstention, the third and fourth paragraphsby 25 votes to 23, with 3 abstentions, and by 25votes to 21, with 4 abstentions respectively. Thesecond and fifth paragraphs were rejected, eachby 22 votes to 20, with 8 abstentions.

In view of the adoption of the first paragraphof the Syrian amendment, the Indian amendment(A/C.6/L.212) was not put to the vote.

The Committee adopted the amended joint draftresolution as a whole by 28 votes to 12, with 7abstentions. It then decided not to vote on the re-maining draft resolutions and amendments.

c. CONSIDERATION BY THE GENERALASSEMBLY IN PLENARY SESSION

The draft resolution proposed by the SixthCommittee (A/2087) was considered by the Gen-

eral Assembly at its 368th plenary meeting on 31January.

A number of statements, made in explanationof vote, were concerned in particular with the twoparagraphs (paragraphs 4 and 5 of the preamble,see below) of the Committee's draft resolutionwhich had formed part of the revised Syrianamendment to the joint draft resolution of France,Iran and Venezuela.

The representatives of Belgium, the Netherlandsand the United States opposed these paragraphsas prejudging the issue by stating, inter alia, thata definition was possible and desirable. The Neth-erlands and United States representatives explainedthat they were doubtful as to whether a satisfac-tory definition could be found and that an unsatis-factory definition would not be of assistance, butthey were nevertheless prepared to review the ques-tion again at the Assembly's seventh session. Therepresentative of Belgium expressed the view thata definition would serve no useful purpose. Therepresentative of France, while stating that hebelieved that a definition would be valuable fromthe point of view of the development of a judicialsystem embracing crimes against the peace andsecurity of mankind, said that he would abstainon the draft resolution if the last two paragraphsof the preamble were retained.

On the other hand, the two paragraphs in ques-tion were supported by the representatives ofBolivia, Burma, Colombia, Czechoslovakia, Egypt,Lebanon, Syria, the USSR and Yemen. They em-phasized the importance of adopting a definition ofaggression so that an aggressor could be clearlyidentified. This, they held, though it would notput an end to acts of aggression, would assist indeterring an aggressor. It would also be a guar-antee that any decision taken by a United Nationsorgan in designating an aggressor would be inaccordance with law and not merely arbitrary. Adefinition, they said, would represent a step for-ward in the efforts to strengthen peace and se-curity, and the General Assembly should adopt thisstatement of principle.

The representative of Burma referred to anappeal he had made in the Sixth Committee thatif an act of aggression occurred before a definitionwere adopted, Members should nevertheless notbe slow to take action to remove invaders froman invaded territory and should not take measureswhich would only make the invaded country "an-other Korea". He stated that the eastern part ofBurma had been invaded by the armed forces ofthe "de facto Kuomintang Government on the


Asiatic island of Formosa". What was needed toget the invaders out was for those countries whichhad been opposed to a definition of aggressionbut which nevertheless favoured collective measuresin the United Nations to state that they wouldwithdraw their support of that Government un-less the invaders were withdrawn; but any actionhad been slow. Such an example, the Burmeserepresentative stated, showed the need for takingaction to define aggression.

In reply, the representative of China read astatement made by the Chinese representative inthe First Committee on this question. It was tothe effect that General Li Mi had been sent tocommand in a part of the province of Yunnan in1949, that he was a native son of that provinceand in view of the geographical inaccessibility ofhis troops acted independently of the ChineseGovernment. That Government had not sent rein-forcements to him and had no intention of makingBurma a military base of any kind.

The General Assembly adopted the resolutionproposed by the Sixth Committee in parts andthen as a whole. The first three paragraphs wereadopted by 53 votes to none, with 1 abstention;the fourth paragraph was adopted by a roll-callvote of 29 to 24, with 2 abstentions as follows:

In favour: Afghanistan, Bolivia, Burma, ByelorussianSSR, Chile, China, Colombia, Cuba, Czechoslovakia,Dominican Republic, Ecuador, Egypt, Guatemala, Haiti,Indonesia, Iran, Lebanon, Liberia, Mexico, Pakistan,Philippines, Poland, Saudi Arabia, Syria, Ukrainian SSR,USSR, Uruguay, Yemen, Yugoslavia.

Against: Argentina, Australia, Belgium, Brazil, Can-ada, Costa Rica, Denmark, France, Greece, Iceland, India,Israel, Luxembourg, Netherlands, New Zealand, Nicara-gua, Norway, Paraguay, Peru, Sweden, Turkey, UnitedKingdom, United States, Venezuela.

Abstaining: Honduras, Thailand.

The fifth paragraph was adopted by a roll-callvote of 29 to 23, with 3 abstentions, as follows:

In favour: Afghanistan, Bolivia, Burma, ByelorussianSSR, Chile, China, Colombia, Cuba, Czechoslovakia,Dominican Republic, Ecuador, Egypt, Guatemala, Haiti,Indonesia, Iran, Lebanon, Liberia, Mexico, Pakistan,Philippines, Poland, Saudi Arabia, Syria, Ukrainian SSR,USSR, Uruguay, Yemen, Yugoslavia.

Against: Argentina, Australia, Belgium, Brazil,Canada, Costa Rica, Denmark, Greece, Iceland, India,Israel, Luxembourg, Netherlands, New Zeland, Nicara-gua, Norway, Paraguay, Peru, Sweden, Turkey, UnitedKingdom, United States, Venezuela.

Abstaining: France, Honduras, Thailand.

The three paragraphs of the operative part wereadopted by 41 votes to 7, with 5 abstentions. Theresolution as a whole was adopted by a vote of 30to 12, with 8 abstentions.

Following the voting, the United Kingdomrepresentative, supported by the representative ofAustralia, stated that as this was a matter involv-ing recommendations concerning peace and se-curity, decisions on it should be taken by a two-thirds majority. He did not challenge the vote ashe agreed that the matter should be discussed atthe next session, but he could not regard the twoparagraphs which had been adopted by a verynarrow vote as representing the views of theAssembly as a whole. The United Kingdom there-fore reserved its freedom to debate the questioncovered by these paragraphs at the next sessionand held that any definition, if one were arrivedat, would unquestionably require a two-thirdsmajority.

The resolution adopted by the Assembly (599(VI) ) read:

"The General Assembly,

"Considering that, under resolution 378 B (V) of 17November 1950, it referred the question of definingaggression, raised in the draft resolution of the Unionof Soviet Socialist Republics to the International LawCommission for examination in conjunction with mat-ters which were under consideration by that Commission,

"Considering that the International Law Commissiondid not in its report furnish an express definition ofaggression but merely included aggression among theoffences defined in its draft Code of Offences againstthe Peace and Security of Mankind,

"Considering that the General Assembly, on 13 No-vember 1951, decided not to examine the draft Code atits sixth session but to include it in the provisionalagenda of its seventh session,

"Considering that, although the existence of the crimeof aggression may be inferred from the circumstancespeculiar to each particular case, it is nevertheless pos-sible and desirable, with a view to ensuring internationalpeace and security and to developing international crim-inal law, to define aggression by reference to the ele-ments which constitute it,

"Considering further that it would be of definite ad-vantage if directives were formulated for the futureguidance of such international bodies as may be calledupon to determine the aggressor,

"1. Decides to include in the agenda of its seventhsession the question of defining aggression;

"2. Instructs the Secretary-General to submit to theGeneral Assembly at its seventh session a report in whichthe question of defining aggression shall be thoroughlydiscussed in the light of the views expressed in the SixthCommittee at the sixth session of the General Assemblyand which shall duly take into account the draft resolu-tions and amendments submitted concerning this ques-tion;

"3. Requests States Members, when transmitting theirobservations on the draft Code to the Secretary-General,to give in particular their views on the problem of de-fining aggression."

Legal Questions 841

G. REPORT OF THE INTERNATIONAL LAW COMMISSION

The International Law Commission (ILC) heldits third session from 16 May-27 July 1951. Itelected for a term of one year the following offi-cers: Chairman—James Leslie Brierly; First Vice-Chairman—Shuhsi Hsu; Second Vice-Chairman—J. M. Yepes; Rapporteur—Roberto Cordova.

The Commission completed its study of andsubmitted its recommendations to the GeneralAssembly (A/1858) concerning: (1) reserva-tions to multilateral conventions, (2) the ques-tion of defining aggression, and (3) the prepara-tion of a draft Code of Offences against the Peaceand Security of Mankind. It submitted for theAssembly's consideration a report on the first phaseof the Commission's review of its Statute, statingthat it would pursue this review further at its nextsession in the light of the Assembly's action onits recommendation. The ILC also submitted forthe Assembly's information a report on the prog-ress of its work on the law of treaties and on theregime of the high seas, and gave an account ofother decisions it had taken at the third session.

At its sixth session, the General Assembly refer-red to the Sixth Committee the item "Report ofthe International Law Commission covering thework of its third session, including: (a) Reserva-tions to multilateral conventions; (b) Questionof defining aggression; (c) Review of the Statuteof the International Law Commission with theobject of recommending revisions thereof to theGeneral Assembly." The Assembly decided to post-pone until its seventh session consideration of thedraft Code of Offences.

The Sixth Committee dealt with the Commis-sion's recommendations concerning reservations tomultilateral conventions together with the Ad-visory Opinion of the International Court of Jus-tice concerning reservations to the Genocide Con-vention.25 With the exception of this question andthe question of defining aggression,26 which aretreated in this volume under separate headings,the Commission's recommendations and any As-sembly action on them is dealt with in the follow-ing pages.

1. Draft Code of Offences against thePeace and Security of Mankind

The Commission was asked by General Assem-bly resolution 177(II) to prepare a draft Code ofOffences against the Peace and Security of Man-kind, indicating clearly the place to be accorded

to the principles of international law recognizedin the Charter and Judgment of the NürnbergTribunal which, at the same time, it was asked toformulate. The Commission's formulation of theseprinciples was considered by the Assembly at itsfifth session and it was asked (resolution 488(V) )in preparing the draft Code to take account of theobservations on this formulation made during theAssembly's discussions and any observations bygovernments.27

Following consideration at its first and secondsessions,28 the Commission, at its third session,considered a second report (A/CN.4/44) pre-pared by Mr. Spiropoulos, the special rapporteuron the subject. The report contained a reviseddraft code and a digest of the observations on theCommission's formulation of the Nürnberg prin-ciples made by delegations at the Assembly's fifthsession. The Commission also had before it obser-vations from governments (A/CN.4/45 andCorr.1 and Add.1 and 2) on this formulation. Itadopted a draft Code and submitted it to theAssembly.

In its report, the Commission stated that, in itsview, the meaning of the term "offences againstthe peace and security of mankind" should belimited to offences which contain a politicalelement and which endanger or disturb the main-tenance of international peace and security. Thedraft Code, therefore, did not deal with questionsconcerning conflicts of legislation and jurisdictionin international criminal matters; nor did it in-clude such matters as piracy, traffic in dangerousdrugs, traffic in women and children and slavery.The Commission considered that it was not boundto insert the Nürnberg principles in their entiretyin the Code but that it might suggest modifica-tions of the principles for the purpose of theirincorporation. It decided to deal with the criminalresponsibility of individuals only. Finally, it stated,it did not consider itself called on to proposemethods by which a code might be given bindingforce; as the offences set forth were characterizedas international crimes it had envisaged an inter-national criminal court, pending the establishmentof which the Code might be applied, as a transi-tional measure, by national courts.

25 See pp. 820-32.

26 See pp. 833-40.

27 See Y.U.N., 1950, p. 857.

28 See Y.U.N., 1948-49, p. 949 and Y.U.N., 1950,.

pp. 861-62.


The draft Code proposed by the Commission(A/1858) consists of five articles with a com-mentary on each paragraph. The articles read asfollows:

"Article 1

"Offences against the peace and security of mankind,as defined in this Code, are crimes under internationallaw, for which the responsible individuals shall bepunishable.

"Article 2

"The following acts are offences against the peaceand security of mankind:

"(1) Any act of aggression, including the employ-ment by the authorities of a State of armed forceagainst another State for any purpose other than nationalor collective self-defence or in pursuance of a decisionor recommendation by a competent organ of the UnitedNations.

"(2) Any threat by the authorities of a State to resortto an act of aggression against another State.

"(3) The preparation by the authorities of a Statefor the employment of armed force against another Statefor any purpose other than national or collective self-defence or in pursuance of a decision or recommenda-tion by a competent organ of the United Nations.

"(4) The incursion into the territory of a State fromthe territory of another State by armed bands acting fora political purpose.

"(5) The undertaking or encouragement by theauthorities of a State of activities calculated to fomentcivil strife in another State, or the toleration by theauthorities of a State of organized activities calculatedto foment civil strife in another State.

"(6) The undertaking or encouragement by theauthorities of a State of terrorist activities in anotherState, or the toleration by the authorities of a State oforganized activities calculated to carry out terrorist actsin another State.

"(7) Acts by the authorities of a State in violationof its obligations under a treaty which is designed toensure international peace and security by means ofrestrictions or limitations on armaments, or on militarytraining, or on fortifications, or of other restrictions ofthe same character.

"(8) Acts by the authorities of a State resulting inthe annexation, contrary to international law, of terri-tory belonging to another State or of territory under aninternational régime.

"(9) Acts by the authorities of a State or by privateindividuals, committed with intent to destroy, in wholeor in part, a national, ethnical, racial or religious groupas such, including:

"(i) Killing members of the group;"(ii) Causing serious bodily or mental harm to

members of the group;"(iii) Deliberately inflicting on the group condi-

tions of life calculated to bring about its physicaldestruction in whole or in part;

"(iv) Imposing measures intended to preventbirths within the group;

"(v) Forcibly transferring children of the groupto another group."(10) Inhuman acts by the authorities of a State or

by private individuals against any civilian population,

such as murder, or extermination, or enslavement, ordeportation, or persecutions on political, racial, religiousor cultural grounds, when such acts are committed inexecution of or in connexion with other offences definedin this article.

"(11) Acts in violation of the laws or customs ofwar.

"(12) Acts which constitute:"(i) Conspiracy to commit any of the offences

defined in the preceding paragraphs of this article; or"(ii) Direct incitement to commit any of the

offences defined in the preceding paragraphs of thisarticle; or

"(iii) Attempts to commit any of the offencesdefined in the preceding paragraphs of this article; or

"(iv) Complicity in the commission of any of theoffences defined in the preceding paragraphs of thisarticle.

"Article 3

"The fact that a person acted as Head of State or asresponsible government official does not relieve himfrom responsibility for committing any of the offencesdefined in this Code.

"Article 4

"The fact that a person charged with an offence de-fined in this Code acted pursuant to order of his govern-ment or of a superior does not relieve him from respon-sibility, provided a moral choice was in fact possible tohim.

"Article 5

"The penalty for any offence defined in this Codeshall be determined by the tribunal exercising jurisdic-tion over the individual accused, taking into account thegravity of the offence."

The Assembly, on the proposal of its GeneralCommittee, decided to postpone consideration ofthe draft Code until its seventh session, as thedraft Code had not yet been submitted to govern-ments for comment. In a circular letter of 17December 1951 the Secretary-General requestedMember Governments to transmit to him anycomments or observations they wished to make onthe draft Code. The Sixth Committee was in-formed at its 280th meeting on 8 January that thedraft had been submitted to Governments.

2. Review by the International LawCommission of its Statute

In resolution 484(V),29 the General Assemblyasked the International Law Commission to reviewits Statute with the object of making recommenda-tions to the Assembly at its sixth session concern-ing revisions of the Statute which might appeardesirable, in the light of experience, for the pro-motion of the Commission's work. In its resolu-tion, the Assembly referred to the importance ofthe Commission's work being carried out in the

29

See Y.U.N., 1950, p. 847.

Legal Questions 843

conditions most likely to enable it to achieverapid and positive results, and stated that certaindoubts had been expressed as to whether suchconditions currently existed.

In its report (A/1858), the ILC pointed outthat, with regard to some of the matters fallingwithin its competence, in particular some of thetopics selected for codification, quick and positiveresults might be difficult, since these subjectsrequired extensive research and consideration. Allthe members of the Commission, it explained,were men engaged in professional activities. Theyhad devoted about three months each year to theCommission's work. In addition, between sessions,members of the Commission serving as rappor-teurs were asked to devote a considerable part oftheir time to the work of the Commission, forwhich they received a modest honorarium. Insome cases, the amount of time which they mightbe able to give to such work might be so limitedas to restrict the scope of their researches. Further,during each of its sessions, the Commission hadspent: more than half the time on special assign-ments from the Assembly, which might haveretarded the progress of its work on topics selectedfor codification.

The Commission therefore suggested that itsmembers should be placed on a full-time basis andthat its Statute should be amended to provide thatits members might not exercise any political oradministrative function or engage in any otheroccupation of a professional nature. To. assistrecruitment, it suggested that a longer term ofoffice should be envisaged.

The ILC stated that it would refrain from sub-mitting detailed suggestions of desirable amend-ments to its Statute until it learned of the GeneralAssembly's attitude towards its fundamenal recom-mendation as to a full-time Commission.

The question of the review of the Commission'sStatute was considered by the General Assemblyat the 295th and 296th meetings of the SixthCommittee on 23 January 1952.

The Committee had before it a Venezuelandraft resolution (A/C.6/L.218/Rev.1), whichhad been altered by the sponsor following sugges-tions by Egypt and France. The Committee lateradopted the draft resolution without any changeof substance (see below).

The representative of the Netherlands, in par-ticular, supported the Commission's recommenda-tion that it should be established on a full-timebasis, on the ground that this would promote the

progress of international law, which was one ofthe most important fields of activity of the UnitedNations and particularly important in view of thedeadlock on various political issues.

The majority of representatives, however, con-sidered that the time had not yet come for such afundamental change in the Commission's structure.

Various of these representatives, including thoseof Belgium, Israel and the United States, consid-ered that the prevailing political situation was un-propitious to rapid progress in international law.The representative of China, however, thoughtthat, while it was necessary for codification toproceed in a period of calm, this was not true inthe case of the development of international law.He considered that if the United Nations failedin its task of developing and codifying inter-national law it would do so, not because of theinternational situation, but because it was fre-quently lacking in faith, will and courage. Therepresentative of Greece considered that it waspossible to proceed with the work of codificationsince international law had altered very little inthe past few years; the difficulties, as had alwaysbeen the case, lay in securing agreement.

A number of representatives considered that thequestion hinged on the use to which the GeneralAssembly put the work of the International LawCommission. The representatives of Israel and theUnited Kingdom expressed the opinion that whilegovernment representatives, as had appeared onvarious occasions in the Sixth Committee, did notaccept the scientific work of the experts in theILC, there was little use in extending the Com-mission's work. The representative of Egyptthought that the Sixth Committee had gonefurther than the Commission which, as a body ofexperts, was not, he considered, in touch withpolitical realities in the same way as governmentrepresentatives. The representative of Yugoslaviawas in favour of placing the members of the ILCon a full-time basis provided the Commission'swork was used by the Assembly. The representa-tives of Belgium and Greece considered that itwas inevitable that a political body such as theAssembly should differ from a legal body such asthe Commission.

The representative of the United States fearedthat a large increase in the output of the Commis-sion would impose an excessive burden on govern-ments asked to comment on draft texts; he, aswell as the representatives of Lebanon and Vene-zuela, also feared that such an increased outputcould not be dealt with by the Sixth Committee.


A number of representatives, including those ofCanada, Lebanon, Pakistan, the USSR, the UnitedKingdom and the United States, thought that itwould not be desirable to place the members ofthe Commission on a full-time basis, on thegrounds that they might thereby lose contact withthe legal systems of their own countries andbecome a body of officials rather than a body ofindependent experts. The representatives of Bel-gium, Canada and the United States considered itessential to preserve a clear distinction betweenthe Commission and the Legal Department of theSecretariat. The representative of the Netherlands,however, stated that if the ILC were placed on afull-time basis, its members would be no morestaff members than the judges of the InternationalCourt of Justice.

The representatives of Brazil, Canada andGreece stated that one of the chief difficulties wasthat the Commission was overburdened with spe-cial tasks by the General Assembly and was there-fore prevented from making sufficient progresswith the codification of international law. Therepresentative of Canada suggested that tasksshould not be assigned to the Commission by theAssembly when the problems had been reduced topolitical issues.

The representative of the United States, point-ing out that if the Commission were placed on afull-time basis it could not continue its experi-ment of delegating much of its work to rappor-teurs, suggested that the Commission might use afull-time rapporteur attached to the Secretariat.The representative of Sweden suggested that arapporteur assigned an important task by theCommission might be given an allowance to en-able him to spend his full time on the Commis-sion's work. The representatives of Canada, Egyptand the United States suggested that more usemight be made of the Legal Department of theSecretariat. The representative of Lebanon sug-gested that the Commission's membership mightbe extended to twenty. The representatives ofCanada and the United Kingdom stated that theywere prepared to consider any other suggestionfor facilitating the Commission's work. The repre-sentatives of Brazil and Greece emphasized, how-ever, that it was only a question of time whichprevented the Commission from accomplishingmore work. It would not help, the representativeof Greece stated, to increase the amount of workdone by rapporteurs since the Commission hadalready more reports from rapporteurs than it hadhad time to examine.

The Venezuelan draft resolution (A/C.6/L.-218/Rev.1) was first adopted in parts, in votesranging from 39 votes to none, with 2 abstentions,to 25 votes to 5, with 11 abstentions. It wasadopted, as a whole, by 34 votes to none, with 8abstentions.

The Sixth Committee's report (A/2088) wasconsidered by the General Assembly at its 368thplenary meeting on 31 January. The United King-dom representative expressed regret that the Sec-retariat services available to the ILC had beenreduced in the current budget, stating that certainmembers of the Sixth Committee had been influ-enced in supporing the draft resolution adoptedby the suggestion that greater assistance should begiven to the Commission by the Secretariat. Heemphasized the importance of these services tothe Commission's work, and expressed the hopethat it would be possible to restore the assistancewhich the Secretariat had previously rendered andincrease it, as far as financially possible.

The draft resolution proposed by the SixthCommittee was adopted by the Assembly by 41votes to none, with 5 abstentions, as resolution600(VI). It read:

"The General Assembly,"Referring to its resolution 4 8 4 ( V ) of 12 December

1950 in which it asked the International Law Commis-sion for "recommendations . . . concerning revisions ofthe Statute which may appear desirable, in the light ofexperience, for the promotion of the Commission'swork",

"Considering that, according to the report coveringthe work of its third session, the said Commission, inpursuance of the General Assembly's resolution, recom-mended that, at the time of the next election of itsmembers, the Commission should be placed on a full-time basis,

"1. Notes the observations and recommendations con-tained in chapter V of the report of the InternationalLaw Commission;

"2. Expresses appreciation for the work done by theCommission pursuant to the terms of its Statute;

"3. Decides, for the time being, not to take any ac-tion in respect of the revision of the said Statute untilit has acquired further experience of the functioningof the Commission."

3. Other Questions Dealt with by theInternational Law Commission

a. LAW OF TREATIES

The Commission reported that, at its thirdsession, the special rapporteur on this subject, Mr.Brierly, presented a second report (A/CN.4/43)in which he submitted a number of draft articles

Legal Questions 845

intended to replace certain articles proposed inthe draft convention (A/CN.4/23) he had pre-sented to the second session. After consideringthese and certain draft articles submitted by thespecial rapporteur to its second session, and afteradopting various amendments, the Commissionprovisionally agreed upon tentative texts (A/CN.-4/L.28). These were referred to the rapporteur,who was asked to submit a final draft, with a com-mentary, to the Commission at its fourth sessionand to report on the topic of the law of treaties asa whole.

b. REGIME OF THE HIGH SEAS

At its third session, the Commission considereda second report (A/CN.4/42) from the specialrapporteur on this subject, Mr. François, which, asrequested by the Commission, formulated concreteproposals on various subjects coming under thisheading.

With regard to the chapters dealing with thecontinental shelf and the related subjects of con-servation of the resources of the sea, sedentaryfisheries and contiguous zones, it decided to com-municate them to governments so that they couldsubmit their comments, in accordance with theILC's Statute. Accordingly, it annexed the draftarticles and commentaries on these subjects to itsreport. Among the Commission's other decisionson the regime of the high seas were the following :

(1) It approved the principle that States must ob-serve certain general rules of international law governingthe nationality of ships.

( 2 ) It considered that a rule should be laid downwith regard to penal jurisdiction in matters of collisionon the high seas.

(3) It approved the proposal to include rules relat-ing to the safety of life at sea.

(4) It considered that the right of warships to ap-proach foreign merchant vessels on the high seas sus-pected of engaging in the slave trade should be the sameas in the case of vessels suspected of piracy, i.e., that itshould be permissible without regard to zone or tonnage.

c. OTHER DECISIONS OF THEINTERNATIONAL LAW COMMISSION

The Commission decided to initiate work onthe topic of "nationality, including statelessness,"on which it appointed Mr. Hudson special rappor-teur and on the topic of "regime of territorialwaters", on which it appointed Mr. François spe-cial rapporteur.

The Commission took note of the Assembly'sresolution 486(V) extending the term of office ofits present members and of the Assembly resolu-

tion 494(V) concerning the Twenty-Year PeaceProgramme. It paid a tribute to the assistancegiven the ILC in its work by international andnational organizations specially interested in inter-national law. It decided that its fourth sessionshould be held in Geneva beginning about 1 June1952.

d. CONSIDERATION BY THE GENERALASSEMBLY

At its 296th and 297th meetings on 23 and 24January, the Sixth Committee considered whataction it should take in regard to chapters VI, VIIand VIII of the Commission's report. Iran pro-posed a draft resolution (A/C.6/L.207) to havethe Assembly note these chapters. The draft resol-ution was supported by the representatives of theNetherlands, the United Kingdom, the UnitedStates and Yugoslavia. The representative of theUSSR, however, considered that these chapters ofthe report had not been placed on the Assembly'sagenda and that the Committee should not dealwith them in any way. Other representatives be-lieved that the word "including" in the agendaitem meant that the whole report of the ILC,except for chapter IV dealing with the draft Codeof Offences, consideration of which had been post-poned, was included in the agenda.

The USSR representative also considered thatthe word "notes" would imply that the Assemblyhad considered these chapters, but other membersof the Committee thought that this word did notimply either approval or disapproval and that itwas merely a question of taking note of the partsof the report submitted for the Assembly's inform-ation. To meet doubts expressed in this connexionby the representative of Belgium, the representa-tive of Iran accepted an oral French amendmentto have the Assembly note the progress of theCommission's work "pending its consideration" ofthe questions dealt with.

During the discussions, the Netherlands repre-sentative suggested that it might be more fruitfulif the Committee were in future to discuss theILC's work at an earlier stage and give the Com-mission directions for its guidance so that theCommission's completed work should not bealtered by the General Assembly, but merelyadopted, rejected or referred back. This procedure,he felt, might lessen the likelihood of disagree-ments between the ILC and the General Assembly.This suggestion was supported by the representa-tive of Greece, who considered that in matters ofcodification the Assembly could make no altera-


tions of detail. The representative of Belgium con-sidered that the Assembly could alter the finaltexts, but agreed that it would be useful if advicewere given to the Commission at an earlier stage.The representative of Iran, however, did not thinkthat it was advisable to change the Commission'sStatute in this respect, since it would not be prac-ticable for the Sixth Committee to examine all thequestions dealt with in the Commission's report.

The Committee adopted the revised Iraniandraft resolution by 34 votes to none, with 5abstentions.

The resolution proposed by the Committee(A/2088) was adopted by the General Assemblyat its 368th plenary meeting on 31 January by 45votes to none, with 5 abstentions, as resolution601(VI). It read:


"Pending its consideration of the questions dealt within chapters VI, VII and VIII of the report of the Inter-national Law Commission covering the work of its thirdsession,

"Notes the progress of the Commission's work onthose questions."

H. DRAFT DECLARATION ON RIGHTS AND DUTIES OF STATES

At its fourth session, in resolution 375(IV),the General Assembly decided to transmit thedraft Declaration on Rights and Duties of States,prepared by the International Law Commission, toMember States for consideration and to ask themfor their comments, in particular on whether theAssembly should take any further action on theDraft Declaration and, if so, on the nature of thedocument to be aimed at and the procedure to beadopted regarding it.30

1. Views of Governments on theDraft Declaration

By the Assembly's fifth session, eleven replieshad been received (A/1338 and Add.1) and theAssembly postponed consideration of the questionuntil its sixth session, by which time one furtherreply, from Australia (A/1850), had been re-ceived. The previous replies had been from Argen-tina, Brazil, Canada, Egypt, France, India, Israel,Luxembourg, the Netherlands, Syria and theUnited Kingdom.

Argentina, Brazil, Egypt and Syria consideredthat the final text should be adopted by the As-sembly as a declaration. Egypt and Syria proposedamendments to the text of the draft Declaration.

Canada stated that it was prepared to regard asexisting international law most of the provisionsof the draft and that, subject to certain specificpoints, it would favour the adoption of a generalconvention on the basis of the draft Declaration,if this were the wish of the great majority of theMembers of the United Nations; Canada could not,however, recommend its adoption as a mere stand-ard of conduct. France considered, the draft a use-ful prelude to the work of codification of the Inter-

national Law Commission to which, it thought, thiswork should be left.

The Netherlands considered that the Declara-tion should be formulated as a body of underlyingprinciples of general international law, but that itshould be made clear that not all the consequencesof these principles could be called positive inter-national law. The drafting of these underlying prin-ciples, it was suggested, should be undertaken bythe International Law Commission and the result-ing Declaration should be acknowledged by theAssembly without further discussion of substance.Amendments were suggested to the text of thedraft Declaration.

Israel considered that no further action shouldbe taken on the draft Declaration at present butthat it should be placed on the agenda of the firstGeneral Conference called to review the Charterin accordance with Article 109. The Conference,it was proposed, should decide the exact nature ofthe document to be arrived at and its place in rela-tion to the Charter, and the International LawCommission should undertake preparatory work onthe problem of the juridical characteristics to begiven to the proposed Declaration.

India and Australia considered that no furtheraction was required on the draft Declaration. Indiastated that its terms were generally acceptable.Australia considered that it did not fit appropri-ately into either of the categories of the develop-ment or of the codification of international law,and that it would not serve a useful purpose toproclaim it as a standard of conduct. The UnitedKingdom referred to the views it had expressed atthe Assembly's fourth session, and Luxembourgstated that it had no observations to present.

30 See Y.U.N., 1948-49, pp. 946-49.

Legal Questions 847

2. Consideration by the GeneralAssembly of Further Action

The question was considered by the GeneralAssembly at its sixth session at the 253rd to 257thmeetings of the Sixth Committee from 17-23November and at the 352nd plenary meeting on7 December 1951.

The Committee's discussion was confined to thepreliminary question of what further action shouldbe taken regarding the draft Declaration. Opinionwas divided between those who thought that theCommittee should immediately open a debate onthe substance of the question, and those whothought that further consideration of the questionshould be postponed, at any rate until moregovernments had sent in replies to the questionsasked in resolution 375(IV).

The representatives of Afghanistan, Argentina,Bolivia, Chile, China, Cuba, Egypt, El Salvador,Ethiopia, Iraq, Mexico, Nicaragua, Syria and Yugo-slavia were in favour of an immediate debate onthe substance of the question. They argued that aformulation of the rights and duties of States wouldbe of the greatest use in current world conditions,particularly for the protection of the interests ofsmall and medium-sized States. In their view, theGeneral Assembly had a legal or moral duty to doits utmost toward the completion of a Declarationat the current session. The fact that only twelveStates had replied to the Assembly's request forcomments and suggestions should not, in theirview, prevent the Assembly's considering the mat-ter; many other States had commented on otheroccasions and would further define their positionsduring the debate on the substance of the draft.The representative of the Philippines consideredthat the replies already received from governmentsshould be studied. The representative of Iran,while stressing the importance of the Declarationfor small and medium-sized Powers, warned thatthe production of a new instrument would notprovide a further guarantee of security.

The representatives of Australia, Belgium,Brazil, Burma, Canada, Czechoslovakia, the Do-minican Republic, Ecuador, Luxembourg, theNetherlands, Paraguay, Peru, Sweden, the Ukrain-ian SSR, the USSR, the United Kingdom, theUnited States, Uruguay and Venezuela were op-posed to holding a discussion of the substance ofthe draft Declaration at the current session. Mostof these representatives shared the view that it wasdesirable to formulate such a declaration and thatit would be of the highest importance, but they

did not think that it was opportune for the SixthCommittee to undertake a definitive formulationof the text at the current session. It was stated thatthe very importance of a declaration and the com-plexity of its preparation made it necessary to pro-ceed slowly and cautiously, with the assistance offully considered written opinions from govern-ments on the contents of the draft and on thequestions asked in resolution 375(IV). The As-sembly, these representatives considered, shouldwait until a larger number of governments hadfurnished such opinions.

Some of these representatives, including thoseof Burma, Ecuador, the Netherlands and Paraguay,thought that present world conditions were un-propitious to a formulation of the draft Declara-tion at the current session. Some, including therepresentatives of Australia, Burma, the UnitedKingdom and the United States, feared that a dis-cussion of the substance of the draft would de-stroy what value it had by a revelation of profounddifferences of opinion, which would make it im-possible to arrive at any concrete result.

The representatives of Czechoslovakia, theUkrainian SSR and the USSR considered that thedraft Declaration, together with any comments ofgovernments, should be referred to the Interna-tional Law Commission before being consideredby General Assembly, on the grounds that such aprocedure was required by the Commission'sStatute and that the Commission's consideration ofthese comments would be of practical advantage.

Three draft resolutions were submitted to theCommittee.

(1) A Ukrainian SSR draft resolution (A/C.6/L.170) proposed that the Assembly postpone considerationof the draft Declaration and transmit any comments al-ready received, as well as those subsequently submittedon it, to the International Law Commission for considera-tion and for the submission, in accordance with the ILC'sStatute, of recommendations to a subsequent Assemblysession.

This draft resolution was rejected by the Com-mittee, at its 256th meeting by 30 votes to 7, with13 abstentions.

(2) A draft resolution by Yugoslavia (A/C.6/L.171)would have the Sixth Committee decide to open a gen-eral discussion on the matter. In its preamble, this draftresolution would refer to the postponement of the ques-tion at the fifth session, note that the item was on theagenda of the current session and state that, in order tocarry out its task in accordance with the rules of pro-cedure, each Main Committee must open a general dis-cussion on all the matters referred to it and that thiswas the only way that representatives of States couldmake statements of substance on the agenda item con-cerned.


The Yugoslav representative agreed to withdrawthis last provision after various representatives hadquestioned this interpretation of the rules of pro-cedure.

(a) An Egyptian amendment (A/C.6/L.174) wasproposed to the Yugoslav draft resolution. The first partof the amendment would add a paragraph to the pre-amble stating that, in spite of the small number of Stateswhich had responded to the Assembly's invitation, ageneral discussion on the matter in the Committee wouldenable the other States to make known their points ofview.

This part of the amendment was rejected by theCommittee by 21 votes to 19, with 10 abstentions.

The second part of the Egyptian amendment proposedto replace the operative part of the Yugoslav draft res-olution by a clause stating that the Committee woulddecide to open a general discussion on the draft Declara-tion with a view to making such recommendation to theGeneral Assembly as appeared necessary, including, ifappropriate, the communication of the discussion to theInternational Law Commission.

This part of the amendment was rejected by theCommittee in a roll-call vote, by 20 votes to 18,with 13 abstentions.

The Yugoslav draft resolution was then re-jected by a roll-call vote of 26 to 19, with 6 ab-stentions, at the Committee's 255th meeting.

(3) A joint draft resolution by Belgium, Luxem-bourg and the Netherlands (A/C.6/L.172 and Corr. 1)proposed that the Assembly : (1) decide to postponeconsideration of the draft Declaration until a sufficientnumber of States had transmitted their comments andsuggestions, and ( 2 ) request the Secretary-General topublish the suggestions and comments for such use asthe Assembly might find desirable at a later stage.

The sponsors of the joint draft accepted a Frenchamendment (A/C.6/L.173) to add a paragraph to theoperative part of the resolution urging States Memberswhich had not yet done so to reply as soon as possibleto the questions put by the Assembly in resolution375( IV) .

Certain representatives, in particular the repre-sentative of the United States, opposed this para-graph, stating that it was undignified for the UnitedNations to make constant appeals to MemberStates.

Certain representatives felt that the joint draftwould be more acceptable if it provided more def-initely for reconsideration of the question. Therepresentative of Iran proposed orally that thequestion should be postponed until a "majority"rather than a "sufficient number" of States had sentin replies to the Assembly's questions. The sponsorsof the joint draft resolution, however, stated thatthey wished to retain some flexibility, pointing outthat the Assembly might decide to discuss thequestion before a majority of States had replied.The Iranian oral amendment was withdrawn in

favour of an Egyptian oral amendment to statethat the Assembly would in any case consider thedraft Declaration as soon as a majority of MemberStates had replied. This was accepted by the spon-sors of the joint draft resolution.

The joint draft resolution, as thus amended, andwith drafting changes by Australia and Turkey,was adopted by the Committee in separate votesand as a whole. The first five paragraphs were adopt-ed by 40 votes to 4, with 8 abstentions, the sixthparagraph (that proposed by France) by 34 votesto none, with 17 abstentions, and the last para-graph by 48 votes to none, with 4 abstentions. Thedraft resolution was adopted, as a whole, by 39votes to 4, with 9 abstentions.

The draft resolution proposed by the Committee(A/1982) was adopted by the General Assemblyat its 352nd plenary meeting on 7 December 1951,by 49 votes to 7, with 4 abstentions.

The representatives of Bolivia, Chile, Egypt andYugoslavia, in explaining their votes, stressed theneed for adopting such a declaration and arguedagainst postponement of its consideration. Therepresentatives of Iran and Iraq stated that theywere in favour of considering the draft at thecurrent session but, failing that, wished it to beconsidered at the next session. The representativesof El Salvador and Peru stated that the very im-portance of the draft Declaration meant that i tshould be given careful consideration which shouldawait further considered replies from governments.

The resolution adopted by the General Assem-bly (596(VI) ) read:

"The General Assembly,''Bearing in mind

"That the General Assembly by resolution 375 (IV)of 6 December 1949 took note of the draft Declarationon Rights and Duties of States prepared by the Inter-national Law Commission, and expressed to the Com-mission its appreciation for its work on the draftDeclaration,

"That by the same resolution the General Assemblyresolved to transmit to Member States, for considera-tion, the draft Declaration together with the documenta-tion relating thereto, and to request them to furnishtheir comments and suggestions,

"That, furthermore, Member States were requested tofurnish at the same time comments on the questionswhether any further action should be taken by the Gen-eral Assembly on the draft Declaration, and if so, whatshould be the nature of the document to be aimed a t ,and what procedure should be adopted in relation to it,

"Considering that the number of States which in pur-suance of the said resolution have given their commentsand suggestions is too small to base thereon any definitedecision,

"1. Decides to postpone for the time being considera-tion of the draft Declaration on Rights and Duties of

Legal Questions 849

States until a sufficient number of States have trans-mitted their comments and suggestions, and in any caseto undertake consideration as soon as a majority of theMember States have transmitted such replies;

"2. Urges the Member States which have not yetdone so to reply as soon as possible to the questions put

by the General Assembly in paragraph 4 of resolution375 (IV);

"3. Requests the Secretary-General to publish thecomments and suggestions which will be furnished byMember States, for such use as the General Assemblymay find desirable at any later stage."

I. WAYS AND MEANS OF MAKING THE EVIDENCE OF CUSTOMARYINTERNATIONAL LAW MORE READILY AVAILABLE

1. Report by the Secretary-General

In accordance with Assembly resolution 487(V), the Secretary-General presented to the sixthsession of the General Assembly a report (A/1934) on the recommendations contained in para-graphs 90, 91 and 93 of part II of the report of theInternational Law Commission on its second ses-sion (A/1316) in the light of the discussions heldin the Sixth Committee at the Assembly's fifthsession.31

The Secretary-General's report dealt with: (1)making United Nations publications and treatytexts more readily available; (2 ) preparation ofnew publications relating to international law; (3)publication of digest of diplomatic correspondenceand of other materials relating to international law.Annexed to the report was a note from the Govern-ment of Israel containing its views on the differentsubjects under consideration.

Under the first heading, the Secretary-Generalreviewed existing United Nations distribution ofthese publications, and concluded that further re-ductions in prices would be incompatible withbudgetary limitations and that a wider distribu-tion could only be secured through an increase infree dissemination which, in view of recommenda-tions by the Fifth Committee and the AdvisoryCommittee on Administrative and Budgetary Ques-tions, would appear to require General Assemblyauthorization.

A special question which had been raised byIsrael at the Assembly's fifth session was the pro-vision to Members which had not been membersof the League of Nations of free sets of the pub-lications of the League and of the Permanent Courtof International Justice. The Secretary-Generalpointed out that only a limited number of suchdocuments had been received and suggested thattheir distribution could best be solved by arrange-ments between himself and the individual govern-ments concerned.

With respect to the second point, the report re-viewed the International Law Commission's rec-ommendations for the following publications:

(1) Juridical Yearbook—This publication had beenpostponed in view of the need for a policy decision re-garding its content and form and the necessary budgetaryappropriations for printing.

(2) Legislative Series—Volumes were already beingprepared containing: national legislation on the con-tinental shelf and contiguous zones; provisions on na-tional jurisdiction over crimes committed on the highseas; provisions in national constitutions governing theconclusion and ratification of treaties; and national leg-islation on nationality of ships. As the main difficultywas the lack of legislative material, it was suggested thatMembers should be asked to send to the Secretary-Gen-eral a set of national legislation and current issues ofofficial journals and other publications containing cur-rent legislation, governmental decrees and administrativeorders.

(3) Collection of national constitutions—A collec-tion was being prepared of constitutional provisions onthe conclusion and ratification of treaties. As new privatecollections in this field were available, it was felt thatthere was no urgent need to prepare a collection.

(4) List of collections of treaty texts—It was sug-gested that the preparation of such a list should beauthorized, since no up-to-date list was available.

(5) Consolidated index of the League of NationsTreaty Series—A special appropriation would be neces-sary for this.

(6) Index volumes of the United Nations Treaty Se-ries—These were already in hand.

( 7 ) Répertoire of United Nations practice—Fundsand personnel were inadequate to undertake this, but aproject was under way involving material relating tothe interpretation of the Charter. Some of the relevantpreparatory material was not, however, available.

(8) Additional series of the Reports of InternationalArbitral Awards—A second series, dealing with the Mix-ed Claims Commissions constituted after 1918 was inhand.

As regards the publication of digests of dip-lomatic correspondence, it was suggested that theAssembly might encourage the publication byStates of their diplomatic correspondence.


The Secretary-General's report was consideredat the Assembly's sixth session at the 297th to301st meetings of the Sixth Committee from 24-28

31

See Y.U.N., 7950. pp. 850-52.


January 1952, and at the 369th plenary meetingon 1 February 1952.

In the general discussion, representatives com-mented on the various proposals for new publica-tions. The following were some of the pointsmade.

The representatives of Israel and the UnitedKingdom, in particular, considered that the UnitedNations should issue a Juridical Yearbook. Therepresentative of France thought that this publica-tion was unnecessary in view of similar existingpublications, and the representative of Yugoslaviathought that the United Nations should have itsown Juridical Yearbook only if there were a needfor it. The representative of Pakistan consideredthat national laws could be usefully included inthe Yearbook only if there was also a sufficientlyscholarly study of the growth of the legislation inthe various countries, but that it would be usefulto have in easily accessible form reports of arbitraltribunals and relevant court decisions.

The representatives of France, Israel and Pakis-tan pointed to the difficulties involved in compil-ing an exhaustive legislative series. The repre-sentative of Israel suggested in this connexion thatuse might be made of institutes of comparativelaw.

The representative of Israel questioned the prac-tical usefulness of a répertoire of United Nationspractice with regard to questions of general inter-national law. The proposal to issue a répertoire ofUnited Nations practice was supported by the rep-resentatives of France, the United Kingdom andYugoslavia. The representative of the UnitedKingdom thought that a répertoire on the prac-tice of the Security Council would be particularlyuseful.

The representative of France pointed out thatthere already existed collections of national con-stitutions, but the Yugoslav representative con-sidered that private collections consisted mainlyof commentary and that a further collection mightbe useful. The representative of Pakistan consid-ered that, to be useful, such a collection wouldneed to include not only texts, but notes on theirpractical application.

A draft resolution was submitted jointly byIsrael and the United Kingdom (A/C.6/L.220).It would:

(1) recommend the Secretary-General to undertakethe necessary preparatory work in order to inauguratethe publication of a United Nations Juridical Yearbookin 1953, taking into account the suggestions made in theSixth Committee;

(2) authorize the Secretary-General to undertake theinitial steps for the preparation of a list of treaty collec-tions supplementary to those already existing;

(3) request Members to make available nationallists of treaty texts;

(4) invite the Secretary-General to submit to theAssembly's next session detailed plans for the publicationof a consolidated index to the League of Nations TreatySeries;

(5) note with satisfaction the progress accomplishedin the Legislative Series, and request the Secretary-Gen-eral to continue his studies relating to the best methodsfor securing for the United Nations the required nationallegislation material;

(6) note with satisfaction that a répertoire involvingmaterial relating to the interpretation of the Charter wasalready under way;

(7) recommend the Secretary-General to give prior-ity to a volume dealing with the function and operationof the Security Council; and

(8) note with satisfaction that further progress wasbeing made in the publication of the Reports of Inter-national Arbitral Awards.

France proposed an amendment (A/C.6/L.224) tosubstitute for the paragraph referring to the répertoireon the Security Council a request to the Secretary-Generalto make the necessary arrangements, in conjunction withthe competent learned institutions, for the publication ofa répertoire of the practice of the United Nations withregard to questions of international law and to proceedactively with the preparation of the répertoire of thepractice of the United Nations with regard to the inter-pretation of the Charter.

This amendment was subsequently withdrawnon the understanding that the Committee's reportwould include a statement of the French delega-tion's wish that the Secretary-General should con-sult with the competent national or internationallearned institutions in connexion with the prepara-tory work concerning a United Nations JuridicalYearbook, a consolidated index of the League ofNations Treaty Series, a list of treaty collections,and a volume containing a répertoire of the prac-tice of the Security Council, especially the first,and the last in so far as there were unsettled pointsabout its form.

The representatives of Belgium, Egypt and theUSSR opposed the draft resolution, stating thatit involved unforeseeable commitments. Even ifno extra cost were involved in the current year,the Committee, in voting for the resolution, wouldbe authorising work which would inevitably in-volve extra costs in the future. Reference was alsomade to the difficulties and magnitude of the taskssuggested. Some of the projects, it was felt, wereunnecessary and others could more suitably beundertaken outside the United Nations. The USSRrepresentative considered that if the proposalswere adopted there would be a danger of the Legal

Legal Questions

Department being assigned tasks which lay faroutside its proper functions.

It was pointed out by the Assistant Secretary-General for Legal Affairs that no extra expenditurefor 1952 was involved, but that the publication ofthe Juridical Yearbook would involve additionalexpenditure in future years.

The representative of Egypt proposed a draftresolution (A/C.6/L.226) to have the Assemblyrequest the Secretary-General:

(1) to submit a report containing detailed planswhich might serve as a basis for the preparation of theworks referred to in his report, and

(2) to submit at the same time an estimate of theexpenditure involved in publishing these works.

This draft resolution was subsequently with-drawn on the acceptance of an oral Egyptianamendment (see below).

The representatives of Israel and the UnitedKingdom submitted a revised version of their jointdraft resolution (A/C.6/L.220/Rev.1). It pro-vided that the General Assembly should:

(1) note with satisfaction the progress accomplish-ed in the Legislative Series, that a répertoire involvingmaterial relating to the interpretation of the Charter wasalready under way, and that further progress was beingmade in the publication of the reports of InternationalArbitral Awards;

(2) authorize the Secretary-General to undertakethe initial steps for the preparation and publication ofa list of treaty collections supplementary to those alreadyexisting;

(3) request Member States to make available to theSecretary-General national lists of treaty texts; and

(4) request the Secretary-General to: (a) undertakethe necessary preparatory work and to present to theGeneral Assembly a detailed plan, together with financialestimates, with a view to publishing a United NationsJuridical Yearbook in 1953, taking into account the sug-gestions made in the Sixth Committee; (b) submit tothe next session of the General Assembly detailed plansfor the publication of a consolidated index to the Leagueof Nations Treaty Series; (c) continue his studies relat-ing to the best methods for securing for the United Na-tions the required national legislation material; and (d)give priority to a volume of the répertoire dealing withthe function and operation of the Security Council.

The representatives of Belgium, Saudi Arabia,Syria and the USSR considered that the Committeeshould not adopt the revised joint proposal with-out having before it details of the financial im-plications involved.

The representatives of Australia and India feltthat the proposal had the merit of giving preciseinstructions to the Secretary-General. The repre-sentative of India stated that since no further costswere involved during 1952 the work should be putin hand forthwith.

The representatives of Israel and the UnitedKingdom accepted a French oral amendment totheir joint draft resolution (A/C.6/L.220/Rev.1).This involved deleting the words "involving ma-terial" in the first operative paragraph.

They also accepted a joint amendment by Can-ada and India (A/C.6/L.228) as revised. Canadaand India had accepted an Egyptian oral amend-ment to ask the Secretary-General for "a reportcontaining detailed plans", rather than simply for"detailed plans". They had also withdrawn, in re-sponse to a suggestion by various delegations, areference to 1953 in the provision referring to thepossible publication of the Yearbook.

The joint amendment:(1) deleted from the first operative paragraph of the

draft resolution the references to the Legislative Seriesand the Reports of International Arbitral Awards;

(2) substituted a new second paragraph;(3) deleted the third paragraph; and(4) redrafted the fourth paragraph (see below for

text of resolution as adopted).The joint draft resolution as amended was

adopted by the Committee at its 301st meeting on28 January in paragraph-by-paragraph votes, rang-ing from 30 to none, with 7 abstentions to 30 to5, with 3 abstentions. It was adopted, as a whole,by 31 votes to 5, with 2 abstentions.

On the Committee's recommendation (A/-2089), it was adopted by the General Assembly atits 369th plenary meeting on 1 February withoutfurther discussion, by 34 votes to 5, with 1 ab-stention.

The resolution (602 (VI) ) read:"The General Assembly,"Having considered the report of the Secretary-General

on ways and means for making the evidence of cus-tomary international law more readily available,

"1. Notes with satisfaction that a répertoire relatingto the interpretation of the Charter is already underway;

"2. Instructs the Secretary-General to continue hisstudies relating to the best methods for securing for theUnited Nations the required national legislative ma-terial;

"3. Requests the Secretary-General to submit to theGeneral Assembly at its seventh session a report con-taining detailed plans as to the form, contents andbudgetary implications in regard to the possible publi-cation of:

"(a) A United Nations juridical yearbook, takinginto account the suggestions made during the debatesin the Sixth Committee;

"(b) A consolidated index to the League of NationsTreaty Series;

"(c) A list of treaty collections supplementary tothose already existing;

"(d) A volume containing a répertoire of the prac-tice of the Security Council."

851


J. INTERNATIONAL CRIMINAL JURISDICTION

The Committee established in accordance withGeneral Assembly resolution 489(V)32 to pre-pare "one or more preliminary draft conventionsand proposals relating to the establishment and thestatute of an international criminal court" met atGeneva from 1-31 August 1951. It prepared adraft Statute for an International Criminal Courtwhich it presented in its report (A/2136).

The Committee had before it a memorandum(A/AC.48/1), submitted by the Secretary-Gen-eral in accordance with the Assembly's resolution489(V). Questions examined in the memorandumincluded the modes of creation of an internationalcriminal court, its jurisdiction and functions, itscharacter and organization, its procedure and thelaw it might apply. Three alternative preliminarydrafts for a statute were annexed to the memoran-dum based on the assumptions (1) that the courtwould be established by General Assembly resolu-tion; (2) that it would be established by inter-national convention; and (3) that it would be anad hoc body.

In the Committee's discussions, some membersfelt that at the present stage in the development ofinternational organization any attempt to establishan international criminal court would meet withinsurmountable obstacles. The majority of theCommittee, however, considered that it was theCommittee's task to elaborate concrete proposalson which the General Assembly could base its de-cisions rather than to express an opinion as to theadvisability of creating an international criminalcourt. It was understood that no member of theCommittee by taking part in its work would com-mit his government to any of the Committee'sdecisions.

In its report, the Committee pointed out that anumber of new and important problems hademerged in the course of its discussions. Some ofthese problems related to the role of a criminalcourt in the current state of international organiza-tion, in particular the need for bringing a judicialpunishment of illegal acts into harmony with theprincipal purpose of the United Nations, i.e., themaintenance of peace. Another group of problemsarose out of the difficulties inherent in any arrange-ment under which individuals are made directlyresponsible before an international organ, whilethe traditional principles of state sovereignty aremaintained. A further group of problems arose outof the difficulties due to the wide differences be-tween national systems for the prevention andpunishment of crime, in particular regarding the

rules of procedure under which a criminal tribunalwould operate.

The following are some of the decisions takenby the Committee. It decided to recommend thatthe court be established by a convention, andagreed that it should be a permanent rather than anad hoc body, but that it should only be called intosession when cases were submitted to it.

As regards the purpose of the court, there wasgeneral agreement that it should be competent tojudge crimes under international law, but opinionin the Committee was divided as to whether thecourt should be called upon to deal only with suchcrimes as might be provided for in conventions orspecial agreements between States parties to itsstatute. Some members of the Committee thoughtthat this would leave outside the scope of thecourt a vast field of international crimes, whichcould then only be tried by special internationaltribunals; others considered that, as there weredifferent opinions as to what crimes were crimesunder international law, in fairness to an accused,the charges must be specified exactly. The Com-mittee decided to retain the reference to specialconventions and agreements. It decided that thecourt should apply international law, includinginternational criminal law, and, where appropriate,national law.

The Committee to a large extent based its pro-visions for the organization of the court on thecorresponding provisions of the Statute of the In-ternational Court of Justice, with certain altera-tions due to the different functions of the twocourts and their different mode of establishment.Thus, for example, it proposed that candidatesshould be nominated and members of the courtelected only by the States parties to the statute, notby all States Members of the United Nations andby the General Assembly, respectively; it insertedprovisions for challenging the sitting of any judgein a particular case; it agreed that judges shouldnot be precluded from having other professionaloccupations; and it proposed that judges shouldreceive a yearly allowance of a symbolic nature,in addition to a daily allowance when they par-ticipated in a session of the court. The Committeerecommended that the court should appoint itsown registrar, and left open the question of wherethe seat of the court would be situated. It con-sidered that the court should be financed by afund created by the States parties to its statute.

32

See Y.U.N., 1950, p. 861.

Legal Questions 853

As regards the jurisdiction of the court, theCommittee considered that jurisdiction should notbe conferred by the statute or by a special protocol,but, principally, through the conclusion of par-ticular conventions conferring jurisdiction on thecourt. The conventions would not relate to anyspecific case but to future cases which might arisewith respect to one or more groups of crimes. TheCommittee also accepted the principle that juris-diction might be conferred on the court by specialagreement or by unilateral declaration in respectof a specific criminal act which had already beencommitted. It proposed that conventions, agree-ments and declarations conferring jurisdictionon the court should be limited to States parties toits statute. Jurisdiction of the court in regard tonationals of a certain State, the Committee pro-posed, should be based on the consent of that State;similarly, the court's jurisdiction would have to beaccepted by the State in which the crime wasalleged to have been committed. In the case ofdouble nationality and in the case of a crime com-mitted in more than one State, the consent of allStates concerned would be necessary.

To ensure that the court should not be calledupon to try as a crime acts which in the generalworld opinion were not of a criminal character,the Committee proposed that any instrument con-ferring jurisdiction upon the court should be sub-ject to the approval of the General Assembly, al-though, it was envisaged, the Assembly might ex-press its approval in advance of agreements ordeclarations concerning certain types of crimes.

It was proposed that both individuals and Statesshould have the right to challenge the jurisdictionof the court, and that the court should have theright to decide any issue with respect to its juris-diction.

The Committee considered that the court shouldbe competent to pass judgment on the penal re-sponsibility of individuals only, and not of legalentities; it agreed that no person should be exemptfrom the court's jurisdiction merely because of hisposition as a responsible ruler or public official.The Committee decided against giving the courtthe competence to decide upon the responsibilityof States for damage caused by crimes within thecourt's jurisdiction or to decide upon the civil re-sponsibility of the accused.

It was proposed that the General Assembly,regional organizations and States parties to thecourt's statute should have the right to bring a casebefore the court. In the case of States, only thoseStates should be able to bring matters before the

court which themselves had recognized the court'sjurisdiction with respect to offences in the samecategory as the offence charged in the particularcase.

It was agreed that the court should have thepower to issue warrants of arrest and also to re-quest assistance from national authorities in theperformance of its duties. It was provided, how-ever, that a State should be obliged to render suchassistance only in conformity with any instrumentin which it had accepted an obligation.

It was proposed that the court should determinethe nature and severity of the penalties which itimposed, subject to any limitation laid down in theinstrument conferring jurisdiction on it.

The Committee proposed that a CommittingAuthority should be established to examine theevidence and decide whether there was a primafacie case against the accused. This, it consider-ed, would protect individuals against frivolousprosecution and the court against consideringfrivolous cases. It was proposed that the Authorityshould be elected at the same time and in the samemanner as the members of the court; that it shouldhave powers similar to those of the court to sum-mon witnesses and require evidence to be pro-duced; and that the accused should have a rightto be heard before it.

The Committee proposed that the ProsecutingAuthority should be established on an ad hoc basisrather than be a permanent official. After consider-ing alternative methods of appointment, the Com-mittee proposed that the prosecuting attorneywould be appointed in each particular case by apanel of ten persons, elected in the same manneras the judges of the court. He should possess thesame qualifications as a member of the court.

In discussing the court's procedure, the Com-mittee stated that it had encountered a generaldifficulty due to the fact that the national systemsof procedure in criminal cases were widely dif-ferent. It limited its provisions on procedure to themost essential rules and tried to avoid terminologythe specific meaning of which varied in differentcountries. The court, it was proposed, should havethe right to lay down its rules, including generalprinciples governing the admission of evidence.

The rules proposed by the Committee dealt,among other things, with the rights of the accused.It was proposed that the accused should be pre-sumed innocent until proved guilty, and shouldhave a fair trial. In particular, he should have theright to be present at all stages of the proceedings,


to be defended by counsel of his own choice, andto be able to obtain free assistance of counsel ifhe was unable to bear the expenses himself. Theaccused would also have the right to interrogateany witnesses and to examine any document orother evidence introduced by the prosecution andto adduce oral or other evidence in his defence.It was proposed that he should also have the rightto the court's assistance in obtaining material whichthe court was satisfied might be relevant to theissues. He should have the right to be heard by thecourt but should not be compelled to speak; hisrefusal to speak should not be relevant to the de-termination of his guilt, but if he chose to speakhe would be liable to questioning by the court andby the counsels for prosecution and defence.

It was proposed to state that trials before thecourt would be without jury. Hearings, it wasproposed, would be public unless the court decidedthat public sittings might prejudice the interests ofjustice; the deliberations of the court would be heldin private. It was generally agreed that the courtshould have the powers necessary to perform itsfunctions, specific provisions being laid down inthe court's rules. It was proposed specifically thatthe court would have the power to dismiss a caseif it came to the conclusion that it would not resultin a fair trial.

The decisions of the court, it was proposed,should be by majority vote. If the votes wereequally divided on final judgments and sentences,no decision would be taken; on other decisions, thepresiding judge would have a casting vote. Aprovision was adopted allowing for separate opin-ions from dissenting judges.

It was proposed that there should be no appealfrom a judgment of the court, but a revision of thejudgment might be requested in the event thatnewly discovered facts warranted reconsiderationof the issue. The Committee adopted the provisionthat no person who had been tried, and acquittedor convicted, by the court should be subsequentlytried for the same offence in a national court in aState which had recognized the jurisdiction of thecourt with respect to such offence.

As regards the execution of sentences, it wasproposed that an obligation to execute the court'ssentence should only rest upon States which hadassumed this obligation by special convention. Ifno such obligation had been accepted, the courtmight request the Secretary-General to make thenecessary arrangements with any State as hethought fit.

To provide for the possibility of pardon orparole, it was proposed that a Board of Clemencyshould be established by the States parties to thestatute.

The Committee gave particular consideration tothe possibility of conferring jurisdiction upon theinternational criminal court in respect of genocide.It adopted a resolution stating the opinion thatalong with the instrument establishing the inter-national criminal court a protocol should be drawnup conferring jurisdiction on that court in respectof genocide.

The Committee's report was not considered bythe General Assembly at its sixth session, as, ac-cording to resolution 489(V) of 12 December1950, the matter was not to be brought before theAssembly until the seventh session.

K. REGULATIONS TO GIVE EFFECT TO ARTICLE III, SECTION 8,OF THE HEADQUARTERS AGREEMENT

Under section 8 of article III of the Head-quarters Agreement, the United Nations is em-powered to make regulations operative within theHeadquarters District, and it is provided that fed-eral, state or local laws inconsistent with UnitedNations regulations will not, in so far as they areinconsistent, be applicable in the District.

In accordance with General Assembly resolu-tion 481(V),33 the Secretary-General presentedthree regulations to the Assembly's sixth session(A/1914). This resolution had requested the Sec-retary-General to present to the Assembly for ap-proval any draft regulations he considered neces-sary for the full execution of the functions of theUnited Nations, and had at the same time author-

ized him to give immediate effect to a regulation,when he considered this necessary, and to reporton such action to the Assembly as soon as possible.

Of the three regulations presented, one hadalready been promulgated on 26 February 1951.Its purpose was to limit the liability of the UnitedNations with respect to risks already covered byits own social security system.

The other two regulations were presented forapproval. One provided that the Secretary-Generalcould determine the qualifications for the perfor-mance of professional or other special occupationalservices within the District, it being understood

33

See Y.U.N., 1950, pp. 179-80.

Legal Questions 855

that doctors and nurses would only be authorizedif qualified in their own or another country. It waspointed out that this would allow a wider geo-graphical selection. The other regulation wouldallow the Secretary-General to fix the times andhours of operation of services and facilities of re-tail establishments within the Headquarters Dis-trict.

The question was considered by the Assemblyat its sixth session at the 301st meeting of theSixth Committee on 28 January and the 369thplenary meeting on 1 February 1952.

The representative of Iran proposed a draft res-olution (A/C.6/L.222) to take note of the reg-ulation already promulgated and to approve theother two regulations.

Some difference of opinion was expressed as towhether the Assembly should "approve" ratherthan merely take note of the regulation alreadypromulgated. The representative of Syria, support-ed by the representatives of the USSR and Yugo-slavia, considered that Assembly approval was nec-essary for an emergency regulation to remain inforce. The representative of the United Kingdomthought that formal approval was not necessaryand that an administrative regulation should re-main in force unless disapproved by the Assembly.The representative of Belgium, while agreeingwith this view, considered that since the Secretary-General was required to submit all regulations tothe Assembly, its approval was required. He ex-pressed the hope that the Secretary-General shouldbe free to interpret the regulation referring to pro-fessional services broadly and be able to requirethat the professionals concerned should not onlybe licensed but also permitted to practise in thecountries where the licences were issued. It wasexplained, on behalf of the Secretary-General, thatit was his intention to provide the best medicaland nursing attention possible.

An oral amendment by Syria to replace thewords "takes note of" by "confirms" was acceptedby the sponsor of the draft resolution. The draftresolution, thus amended, was adopted by the Com-mittee by 38 votes to none, with 1 abstention.

On the Committee's recommendation (A/-2091), it was adopted without further discussionby the General Assembly at its 369th plenarymeeting by 42 votes to none, as resolution 604(VI). It read:


"Considering the provisions of article III, section 8,of the Headquarters Agreement between the United

Nations and the United States of America, which cameinto force on 21 November 1947,

"Recalling General Assembly resolution 481 (V) of12 December 1950, which prescribed the method forgiving effect to article III, section 8, of the Headquar-ters Agreement,

"Having considered the report of the Secretary-Gen-eral containing Headquarters regulation No. 1, whichwas promulgated with immediate effect by the Secre-tary-General on 26 February 1951, and presenting draftHeadquarters regulations Nos. 2 and 3 for approval bythe General Assembly,

"1. Confirms Headquarters regulation No. 1 of 26February 1951, on the United Nations social securitysystem, annexed to the present resolution;

"2. Approves Headquarters regulation No. 2 on quali-fications for professional or other special occupationalservices with the United Nations, and Headquarters reg-ulation No. 3 on the operation of services within theHeadquarters District, as annexed to the present resolu-tion."

ANNEX

HEADQUARTERS REGULATIONSFor the purpose of establishing in the Headquarters

District conditions in all respects necessary for the fullexecution of the functions of the United Nations, and inparticular for the purposes specified in each regulation,the following regulations are in effect:

REGULATION No. 1HEADQUARTERS REGULATIONS

For the purpose, in the field of staff social se-curity, of giving immediate effect to measuresnecessary for avoiding multiple obligations arisingfrom the possible application of overlapping lawsand regulations:

1. A comprehensive United Nations social securitysystem having been established for the purpose of afford-ing protection against all reasonable risks arising out ofor incurred during service with the United Nations, theprovisions of the United Nations social security systemshall constitute the only obligations of the United Na-tions in respect of such risks.

2. The provisions of the United Nations social se-curity system shall constitute the sole provisions underwhich persons in the service of the United Nations shallbe entitled to claim against the United Nations in re-spect of any risks within the purview of the UnitedNations social security system, and any payments madeunder the United Nations social security system shallconstitute the sole payments which any such personshall be entitled to receive from the United Nations inrespect of any such risks.

3. This regulation shall take effect on the date of itspromulgation, without prejudice, however, to any ele-ments of the United Nations social security system, orany rights or obligations thereunder, already existing atthe date of this regulation.

PROMULGATED by the Secretary-General on 26 Febru-ary 1951, with immediate effect, in pursuance of theauthority conferred on him by resolution 481 (V) of theGeneral Assembly and CONFIRMED by the General As-sembly in resolution 604 (VI) of 1 February 1952.


REGULATION No. 2Qualifications for professional or other specialoccupational services with the United Nations

For the purpose of availing the United Nations ofthe professional or special occupational services ofpersons recruited on as wide a geographical basisas possible:

The qualifications and requirements necessary for theperformance of professional or other special occupationalservices within the Headquarters Distria shall be de-termined by the Secretary-General; provided that, priorto authorizing medical or nursing services by any per-son, the Secretary-General shall ascertain that such personhas been duly qualified to perform such services in hisown or another country.

APPROVED by General Assembly resolution 604 (VI)of 1 February 1952.

REGULATION No. 3Operation of services within the Headquarters District

For the purpose of ensuring uninterrupted servicesnecessary to the proper functioning of the princi-pal and subsidiary organs of the United Nations:

The times and hours of operation of any services andfacilities or retail establishments authorized within theHeadquarters District shall be in compliance with sched-ules fixed by the Secretary-General; no regulations, re-quirements or prohibitions beyond those so prescribedshall be imposed without his approval.

APPROVED by General Assembly resolution 604 (VI)of 1 February 1952.

L. PRIVILEGES AND IMMUNITIES

There was no change in 1951 in the state ofaccessions to the Convention on the Privileges andImmunities of the United Nations.

With respect to the Convention on the Privilegesand Immunities of the Specialized Agencies, thefollowing action was taken during the year.

On 16 January 1951, the International Tele-communication Union transmitted to the Secre-tary-General the final text of annex IX to the Con-vention on the Privileges and Immunities of theSpecialized Agencies. Except that the ITU does notclaim communications privileges under the Con-vention, this action now permits the applicationto that organization of the standard clauses with-out modification.

The Secretary-General received on 29 December1951 from the World Meteorological Organizationthe final text of its approved annex XI to theConvention on the Privileges and Immunities ofthe Specialized Agencies,34 and its notice of ac-ceptance of the standard clauses without modi-fication.

During 1951 the instruments of accession of sixStates to the Convention on the Privilegs andImmunities of the Specialized Agencies were re-ceived by the Secretary-General.

As regards special agreements relating to privi-leges and immunities, the following action wastaken during 1951.

On 30 January, the Secretary-General concludedan agreement with Chile with regard to the hold-ing of the twelfth session of the Economic andSocial Council in Santiago.

The Secretary-General concluded an agreementwith Mexico, effective 20 May 1951, with regardto the holding of the fourth session of the Eco-nomic Commission for Latin America in MexicoCity.

On 17 August, the Secretary-General concludedwith the Government of France, by means of anexchange of letters, an agreement relating to thefacilities to be made available to the United Na-tions, enabling the sixth session of the GeneralAssembly to be held in Paris.

On 20 August, the Director of the United Na-tions Relief and Works Agency for PalestineRefugees in the Near East (UNRWAPRNE)concluded an agreement with the Government ofJordan relating, inter alia, to the privileges andimmunities to be enjoyed by the Agency and itsstaff in that country.

On 21 September, an exchange of letters con-stituting an agreement concerning the privilegesand immunities to be accorded to the United Na-tions in Korea was effected between the personalrepresentative of the Secretary-General and thePresident of the Republic of Korea.

On 30 June, special arrangements were madeby the United Kingdom Government to grant tothe Secretariat staff of the United Nations Com-mission in Eritrea certain privileges additional tothose conferred upon them by the Convention onthe Privileges and Immunities of the United Na-tions, on account of the particular circumstancesand geographical location of the Commission.

34 See also p. 589.

Legal Questions 857

M. DESIGNATION OF NON-MEMBER STATES TO WHICH COPIES OFTHE REVISED GENERAL ACT FOR THE PACIFIC SETTLEMENT OF

DISPUTES SHOULD BE COMMUNICATED

By its resolution 480 (V),35 of 12 December1950, the General Assembly postponed until itssixth session the consideration of the designationof non-member States to which a certified copy ofthe Revised General Act for the Pacific Settlementof International Disputes should be communicatedfor the purpose of accession to this Act.

The Revised Act had come into force on 20September 1950, following the accession to it ofBelgium and Sweden. The Act provides that it isto be open to non-member States which are partiesto the Statute of the International Court of Jus-tice, or which have been designated by the Assem-bly to receive copies.

The question was considered at the Assembly'ssixth session at the 298th and 299th meetings ofthe Sixth Committee on 25 January and the 369thplenary meeting on 1 February 1952.

The Secretary-General, in a report to the Assem-bly (A/1878), pointed out that since its discus-sions in 1950, one further State, Norway, hadacceded to the Act, on 16 July 1951.

Two draft resolutions were submitted to theSixth Committee. One, by Belgium (A/C.6/L.221) would request the Secretary-General to trans-mit copies of the Act to each non-member Statewhich is, or hereafter becomes, an active memberof one or more of the specialized agencies of theUnited Nations.

The other, by the United Kingdom (A./C.6/L.223), would defer consideration of the questionuntil at least one third of the Members of theUnited Nations had become parties to the Act.

The representatives of Australia, Belgium, theDominican Republic, Egypt, Iraq and Lebanonspoke in favour of the communication of the Re-vised General Act to non-member States for ac-accession when only two United Nations Membersthis matter should not be postponed from yearto year; he pointed out that the Convention forthe Suppression of the Traffic in Persons and ofthe Exploitation of the Prostitution of Others hadbeen communicated to non-member States for theiraccession which only two United Nations Membershad become parties to it.

The representatives of Belgium, the DominicanRepublic, Egypt, Iraq and Lebanon considered itimportant to extend to non-member States theprocedures for pacific settlement described in the

Act. The representative of Australia said that thecommunication of the text would merely openthe instrument for accession by non-member Statesin accordance with its terms.

The representatives of the USSR and the UnitedKingdom, on the other hand, argued that it wasinappropriate to invite non-member States tobecome parties to the Act when only three UnitedNations Members had acceded to it. The UnitedKingdom representative pointed out that there wasnothing to prevent non-member States fromagreeing otherwise than by the General Act toarbitral or judicial proceedings for settling theirinternational disputes.

The representative of Israel felt that those Mem-ber States which had already acceded to the Acthad a right to take the position that it should becommunicated to non-members, but those whichhad not acceded were not in the same moral posi-tion. The representative of the Philippines con-sidered that various Members, like the Philippines,had not yet acceded to the Act, purely on accountof a delay in their constitutional processes, andthere was nothing to prevent an invitation beingsent to non-member States. He would, however,abstain from voting on the Belgian draft resolu-tion as it covered certain non-member States whichhis country did not think should be allowed toparticipate in any agreement concluded underUnited Nations auspices.

There was some discussion on the criterion ofmembership in specialized agencies, used in theBelgian draft. The Belgian representative pointedout that this had been the criterion adopted in thecase of the Genocide Convention. The UnitedKingdom representative said that countries not fullysovereign could become members of a specializedagency provided they possessed sufficient domesticautonomy in the field covered by that agency. TheGenocide Convention contained obligations whichcould be fulfilled by such countries, but the GeneralAct imposed international obligations which couldonly be undertaken by a fully sovereign State. Therepresentative of Belgium replied that his draftresolution applied to States, not to territories.

The representative of Egypt proposed an oralamendment to the Belgian draft to have the texttransmitted to "a member" rather than "an active

35 See Y.U.N., 1950, p. 880.


member" of an agency. This was accepted by theBelgian representative. The Egyptian amendmentalso proposed to substitute the words "peut de-venir" for "deviendra" in the French text of theBelgian draft. After some differences of opinionhad been expressed as to whether this should beinterpreted as applying to States which actuallybecame members of agencies or also to Stateswhich had the possibility of becoming members,this part of the amendment was not accepted byBelgium.

The Committee, by 19 votes to 11, with 9abstentions, decided to vote first on the UnitedKingdom proposal.

The United Kingdom representative acceptedan oral Egyptian amendment to substitute "ten"Members of the United Nations for "one third of

the" Members. The draft resolution, as amended,was adopted by 24 votes to 13, with 5 abstentions,at the Committee's 299th meeting.

It was adopted on the Committee's recommenda-tion (A/2090) without further discussion by theGeneral Assembly at its 369th plenary meetingon 1 February 1952, by 32 votes to 6, with 1abstention, as resolution 603(VI). It read:

"The General Assembly,"Considering that only three Members of the United

Nations have become parties to the Revised GeneralAct for the Pacific Settlement of International Disputes,and that in the circumstances its communication to non-member States under article 43, paragraph 1, of the Actwould be premature,

"Decides to defer further consideration of the matteruntil at least ten Members of the United Nations havebecome parties to the Act."

N. QUESTION OF THE REVISION OF THE CHINESE TEXT OF THEGENOCIDE CONVENTION

In depositing on 19 July 1951 China's instru-ment of ratification of the Genocide Convention,the permanent representative of China to theUnited Nations asked the Secretary-General totake steps to revise the official Chinese text of theConvention. He submitted a new Chinese text in-corporating the amendments which were proposedby his Government with a view to bringing theChinese text into greater uniformity with theother official texts of the Convention.

The Secretary-General stated that, since theConvention had already entered into force and, inaccordance with its terms, the Chinese, English,French, Russian and Spanish texts were all equallyauthentic, he was without authority to undertaketheir revision.

The permanent representative of China to theUnited Nations then confirmed that China's requestshould be deemed an official request for revisionof the Convention under its article XVI.36 TheSecretary-General accordingly placed the requeston the provisional agenda of the Assembly's sixthsession and prepared a memorandum on the sub-ject (A/1880).

The question was considered by the GeneralAssembly at the 268th and 303rd meetings of theSixth Committee on 11 December and 29 January1952, and at its 369th plenary meeting on 1February 1952.

At its 268th meeting, the Sixth Committee, onthe proposal of the Chairman, agreed without ob-

jection that, to speed the Committee's work, theSecretariat should be authorized to ascertain thecorrect Chinese text of the Convention.

At the Committee's 303rd meeting, the repre-sentatives of the Byelorussian SSR, Czechoslovakia,Poland, the Ukrainian SSR and the USSR statedthat they would not take part in the discussion orin the vote, since, in their view, the request forrevision had not come from the lawful Govern-ment of China.

The representative of China asked that the ques-tion should be deferred until the Assembly'snext session. Following the Committee's earlierauthorization, his delegation had gone over therevised text with the Secretariat. It had, however,taken longer than expected to arrive at a definitivetext, and there had not been time to submit thisto his Government.

To meet the wishes of the representative ofChina, the representative of Iran submitted adraft resolution (A/C.6/L.230) which wouldhave the Assembly take note of the desire of theGovernment of China to defer consideration ofthe item, and decide to include it in the provisionalagenda of the seventh session.

The representative of Burma proposed orallythat the paragraph referring to the desire for post-

36 This article states that a request for revision of the

Convention may be made at any time by a contractingparty by means of a notification in writing addressed tothe Secretary-General. The General Assembly is to decideon the steps to be taken in respect of the request.

Legal Questions 859

ponement should be replaced by a paragraph inwhich the Assembly would express its desire "todefer the consideration of this question until theGovernment of China is able to decide on thematter." This amendment was not acceptable tothe representative of China, who said that it im-plied censure of his Government. A compromiseamendment was suggested by the representativeof Egypt, and was accepted by the representativesof Burma and China, as well as by the sponsor ofthe draft resolution, and became the second para-graph of the resolution.

The Committee adopted the revised draft reso-lution by 29 votes to none, with 5 abstentions.

On the Committee's recommendation (A/-2092) it was adopted by the General Assembly,without further discussion, at its 369th plenarymeeting by 34 votes to none, with 5 abstentions,as resolution 605 (VI). It read:

"The General Assembly,"Having included in the agenda of its sixth session

the question entitled "Request of the Government ofChina for revision of the Chinese text of the Conventionon the Prevention and Punishment of the Crime ofGenocide",

"Considering that the elements necessary for the dis-cussion of this question are not yet at the disposal ofthe General Assembly,

"Decides to include this question in the provisionalagenda of its seventh session."

O. MULTILATERAL CONVENTIONS

1. New Conventions Concluded underthe Auspices of the United Nations

during 1951

The following conventions, protocols, agree-ments or other instruments of which the Secre-tary-General is the depositary, have been drawnup under the auspices of the United Nations dur-ing 1951:

The Final Act authenticating the results of the TariffNegotiations held at Torquay from 28 September1950-21 April 1951, together with Decisions by theContracting Parties agreeing to the accession to the Gen-eral Agreement on Tariffs and Trade of the Republic ofAustria, the Federal Republic of Germany, the Republicof Korea, Peru, the Republic of the Philippines, and theRepublic of Turkey; as well as the Torquay Protocol tothe General Agreement on Tariffs and Trade, and theDeclaration on the Continued Application of the Sched-ules to the General Agreement. All of these instrumentswere done at Torquay on 21 April 1951;

Convention relating to the Status of Refugees, signedat Geneva on 28 July 1951, annexed to the Final Actof the United Nations Conference of Plenipotentiarieson the Status of Refugees and Stateless Persons, held atGeneva from 2—25 July 1951;

First Protocol of Rectifications and Modifications tothe Texts of the Schedules to the General Agreement onTariffs and Trade, signed at Geneva on 27 October1951; and

First Protocol of Supplementary Concessions to theGeneral Agreement on Tariffs and Trade (Union of

South Africa and Germany) done at Geneva on 27October 1951;37

2. Status of Signatures, Ratificationsand Accessions; Entry into Force

During 1951, a total of 105 signatures wereaffixed to international agreements for which theSecretary-General exercises depositary functions,and 98 instruments of ratification, accession ornotification were transmitted to the Secretary-General.

During 1951 seventeen (17) of the agreementsentered into force, principal among which werethe Convention on the Prevention and Punishmentof the Crime of Genocide; Convention for theSuppression of the Traffic in Persons and of theExploitation of the Prostitution of Others; and anumber of instruments relating to the GeneralAgreement on Tariffs and Trade.

3. Handbook of Final Clauses inMultilateral Conventions

A "Handbook of final clauses" in multilateralconventions was issued in provisional form on 28August 1951.

This entered into force on 25 May 1952.37


P. REGISTRATION AND PUBLICATION OF TREATIES ANDINTERNATIONAL AGREEMENTS

During 1951, a total of 799 treaties and agree-ments were registered with the Secretariat—47ex officio, 586 by twenty governments, and 166by three specialized agencies. A total of 165 treatiesand agreements were filed and recorded—three bythe United Nations, 142 at the request of fourgovernments, and twenty at the request of twospecialized agencies.38

This brought to 2,390 the total of treaties andagreements registered or filed and recorded by theend of 1951.

The texts of treaties and agreements registeredor filed and recorded are published by the Secre-tariat in the United Nations Treaty Series in theoriginal languages, followed by a translation inEnglish and French. Twenty-one volumes (41 to61) of the Treaty Series were published in thecourse of 1951.

38 For further information regarding these treaties andagreements, i.e., titles, parties, date of entry into force,date and number of registration, registering parties, seemonthly Statements of Treaties and International Agree-ments Registered or Filed and Recorded with the Secre-tariat (ST/LEG/Series A/47-58).

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