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currently with the flags of the various nations participating ; 6. Requests the United States to provide the Security Council with reports as appropriate on the course of action taken under the unified command."
In spite of the fact that Article 42 of the Charter could not be applied, the action in Korea was a police action of the United Nations, the execution of a military sanction within the system of collective security established the Charter of the United Nations. As to the legal standing of the action, cf. Hans Kelsen, The Law of the United Nations, London 1951, pp. 927 ff., and Stone, op cit., pp. 228 ff.
21. Cf. the Observations on the Draft Treaty of Mutual Assistance submitted to the League of Nations by the British Government. League Document A. 35, 1924, IX, p. 16, quoted in International Sanctions, p. 116.
22. In this respect the Charter of the United Nations differs from the Covenant of the League of Nations. The latter provided in Article 1, paragraph 3: "Any Member of the League may, after two years' notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal,” and in Article 26 : “1. Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly. 2. No such amendment shall bind any Member of the League which signifies its dissent therefrom, but in that case it shall cease to be a Member of the League.” The Charter of the United Nations does not contain a provision concerning withdrawal from the organization. However, the Report of Commission I to the plenary session of the San Francisco Conference at which the Charter was signed contained the following commentary adopted by Committee 1/2 of the Conference: "The Committee adopts the view that the Charter should not make express provision either to permit or to prohibit withdrawal from the Organization. The Committee deems that the highest duty of the nations which will become Members is to continue their cooperation within the Organization for the preservation of international peace and security. If, however, a Member because of exceptional circumstances feels constrained to withdraw, and leave the burden of maintaining international peace and security on the other Members, it is not the purpose of the Organization to compel that Member to continue its cooperation in the Organization. It is obvious, particularly, that withdrawals or some other forms of dissolution of the Organization would become inevitable if, deceiving the hopes of humanity, the Organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice. Nor would a Member be bound to remain in the Organization if its rights and obligations as such were changed by Charter amendment in which it has not concurred and which it finds itself unable to accept, or if an amendment duly accepted by the necessary majority in the Assembly or in a general conference fails to secure the ratification necessary to bring such amendment into effect. It is for these considerations that the Committee has decided to abstain from recommending insertion in the Charter of a formal clause specifically forbidding or permitting withdrawal.”
23. Cf. Lord Davies, The Problem of the Twentieth Century, 1930, Second Ed., 1934, pp. 425 ff., 441 ff., and International Sanctions, p. 121 ff.
24. Cf. International Sanctions, p. 127. However, Davies, op. cit., pp. 446 f. suggested four categories of reserve formations. Recruits should be enlisted "... at the age of seventeen for a minimum term of five years. At the end of this period a proportion of, let us say, three-quarters of the total force would be eligible
for reenlistment for a further term of five years. Their eligibility would be determined by their conduct, achievements and the results of examinations during the preceding period. The retiring contingent, representing twenty-five per cent of the total force, would be relegated to a distinct category of reserves. Similarly, another group would retire at the end of the second period of enlistment, a third and fourth at the conclusion of fifteen and twenty years' service. The minimum period would, therefore, be five years and the maximum period twenty years, whilst the ages of retirement would be twenty-two, twenty-seven, thirty-two and thirty-seven years respectively.” However, Davies did not discuss the question of how the international organization might force the reservists to reenter the military service in the international armed force.
25. Davies, op. cit., p. 441, suggested that each member of the international armed force "... swear his oath of allegiance to the international authority. From that moment until he is demobilized he becomes de-nationalized in the sense that his services belong exclusively to the authority and that he recognizes no other official claims upon his loyalty."
26. The Charter of the United Nations does not provide for a denationalization of the members of the Secretariat. Article 100 stipulates only : “1. In the performance of their duties, the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization. 2. Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities." This provision is implemented by Article I, Rules of the Staff Regulations, which runs as follows: "1.1. Members of the Secretariat are international civil servants. Their responsibilities are not national but exclusively international. By accepting appointment, they pledge themselves to discharge their functions and to regulate their conduct with the interests of the United Nations only in view. 1.2. Staff members are subject to the authority of the Secretary-General and to assignment by him to any of the activities or offices of the United Nations. They are responsible to him in the exercise of their functions. The whole time of staff members shall be at the disposal of the Secretary-General. The Secretary-General shall establish a normal working week. 1.3. In the performance of their duties members of the Secretariat shall neither seek nor accept instructions from any government or from any other authority external to the Organization. 1.4. Members of the Secretariat shall conduct themselves at all times in a manner befitting their status as international civil servants. They shall not engage in any activity that is incompatible with the proper discharge of their duties with the United Nations. They shall avoid any action and in particular any kind of public pronouncement which may adversely reflect on their status. While they are not expected to give up their national sentiments or their political and religious convictions, they shall at all times bear in mind the reserve and tact incumbent upon them by reason of their international status. 1.5. Staff members shall exercise the utmost discretion in regard to all matters of official business. They shall not communicate to any person any information known to them by reason of their official position which has not been made public, except in the course of their duties or by authorization of the SecretaryGeneral. Nor shall they at any time use such information to private advantage. These obligations do not cease upon separation from the Secretariat. 1.6. No member of the Secretariat shall accept any houour, decoration, favour, gift or
fee from any government or from any other source external to the Organization during the period of his appointment, except for war service. 1.7. Any member of the Secretariat who becomes a candidate for a public office of a political character shall resign from the Secretariat. 1.8. The immunities and privileges attached to the United Nations by virtue of Article 105 of the Charter are conferred in the interests of the Organization. These privileges and immunities furnish no excuse to the staff members who enjoy them for non-performance of their private obligations or failure to observe laws and police regulations. In any case where these privileges and immunities arise, the staff member shall immediately report to the Secretary-General, with whom alone it rests to decide whether they shall be waived. 1.9. Members of the Secretariat shall subscribe to the following oath or declaration : 'I solemnly swear (undertake, affirm, promise) to exercise in all loyalty, discretion and conscience the functions entrusted to me as an international civil servant of the United Nations, to discharge these functions and regulate my conduct with the interests of the United Nations only in view, and not to seek or accept instructions in regard to the performance of my duties from any government or other authority external to the Organization.' 1.10. The oath or declaration shall be made orally by the Secretary-General and Assistant Secretaries-General at a public meeting of the General Assembly and by all other members of the Secretariat before the Secretary-General or his authorized deputy."
27. The Charter of the United Nations does not impose upon the member states the obligation to grant complete exemption from their jurisdiction to the individuals who are organs of the organization. It provides only: "ARTICLE 104. The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. ARTICLE 105. 1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization. 3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.” These provisions are implemented by a convention on privileges and immunities of the United Nations, prepared by the General Assembly in its Resolution of 13 February 1946 and the Headquarters Agreement between the United Nations and the United States of America (on the territory of which the Headquarters of the United Nations is established) of 26 June 1947 approved by the General Assembly in its Resolution of 31 October 1947.
28. Cf. International Sanctions, pp. 123 f., and Davies, op. cit., p. 376 ff. 29. Davies, op. cit., pp. 376 ff.
30. The Internationalization of European civil and military aviation together with the establishment of an international air-police for Europe was suggested by Rear Admiral R. N. Lawson in his pamphlet, A Plan for the Organization of a European Air Service. The New Commonwealth Institute Monographs. Series C, No. 2, 1936.
31. The “United Nations Guard,” proposed by the Secretary-General in his report to the General Assembly of 28 September 1948 (A/656), was originally intended to be a miniature police force organized to protect United Nations missions in the field in troubled areas without incurring the suspicion of partiality which the use of local police or national militia might engender. The
guard was to consist of 800 men. The nucleus of 300 men was to be located and trained either at United Nations Headquarters or at an appropriate place in Europe, and a volunteer reserve cadre of up to 500 men was to be recruited multinationally and held in reserve in their home states at the call of the Secretary-General as and when required. The General Assembly did not accept this proposal, but, in conformity with a revised suggestion of the SecretaryGeneral, adopted a Resolution on 22 November 1949 (297 IV, A, B) in which it confirmed the power of the Secretary-General to establish the “United Nations Field Service” and authorized him to establish a "Panel of Field Observers." According to the revised suggestion of the Secretary-General, the Field Service was to consist of 300 persons who were to be part of the Secretariat and who were to provide the following services : providing land transport for missions and such incidental air transport as might be required; maintaining radio communications for missions; maintaining the security of United Nations premises and members of missions, safe custody of supplies, records and archives; maintaining order during meetings, hearings and investigations; performing guard duties at Headquarters. The members of the Field Service were not to be regularly supplied with arms of any kind. The Field Reserve Panel was to be simply a list of names of qualified persons available for service only in response to a specific decision of the General Assembly, the Security Council or an organ authorized by them. Their task was to be to assist United Nations missions in the functions of observation and supervision. The two services were not designed to act as a military force or to enforce Security Council decisions. Cf. Yearbook of the U. N., 1948/49, pp. 419 ff.
32. This was the situation under the Covenant of the League of Nations. 33. Cf. pp. 12 ff.
34. This is the solution of the problem by the Charter of the United Nations which provides in Article 39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” The Security Council, not the individual members of the United Nations, must ascertain the facts against which the Charter provides for enforcement measures. Only as long as the Security Council does not interfere, are the member states, exercising the right of individual or collective self-defense in accordance with Article 51, authorized to determine the existence of an "armed attack.” According to the Resolution of the General Assembly “Uniting for Peace” (cf. supra, p. 139), the General Assembly, too, is authorized to make, under certain conditions, determined in this resolution, recommendations to members for collective measures. In order to make these recommendations the General Assembly must determine the existence of a threat to the peace, breach of the peace, or act of aggression.
35. The Charter of the United Nations provides in Article 40: "In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional
deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.” The provisional measures referred to in this Article may be taken before or after the Security Council has determined the existence of a threat to, or breach of, the peace, but before it has taken the enforcement
measures referred to in Article 39, which have the character of sanctions. However, after the Security Council has determined the existence of a threat to, or breach of, the peace, it may not take these enforcement measures immediately but may make “recommendations,” which probably means recommendations for a peaceful settlement of the conflict. These recommendations may also be considered as provisional measures.
36. This principle is maintained in the statute of the International Court of Justice, the principal judicial organ of the United Nations. Article 34, paragraph 1, of the Statute of the Court expressly stipulates : "Only states may be parties in cases before the Court."
37. The Peace Treaty with Germany terminating the first World War contained the following provision in Article 231: “The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies.” In ratifying this treaty, the Government of defeated Germany admitted that Germany had been the aggressor. Article 227 of the Peace Treaty established the individual criminal responsibility of the former head of the German state. It stipulated that the ex-Emperor, William II, should be brought before an international criminal court "for a supreme offence against international morality and the sanctity of treaties.” The “offence" referred mainly to the act of aggression committed by Germany in violating her obligation to respect the neutrality of Belgium and Luxembourg which she had guaranteed. Article 227 stipulated further that it will be the duty of this tribunal “to fix the punishment which it considers should be imposed.” Article 227 of the Peace Treaty was never applied.
38. Cf. the following note.
39. The principle of individual criminal responsibility for violations of international law by acts of state was applied in the Agreement signed on 8 August 1945, at London, which was the legal basis for the so-called Nuremberg trial. As stated in its Preamble, this treaty was concluded by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics and had as its purpose the prosecution and punishment of the major war criminals of the European Axis. The contracting parties were the states occupying the territory of Germany after its defeat in the second World War. They concluded the agreement not in their capacity as the joint government of Germany, but, as declared in the Preamble to the Agreement, "in the interest of all the United Nations.” As a matter of fact, some of the United Nations adhered to the Agreement in conformity with Article 5 which provided that "any Government of the United Nations may adhere to this Agreement.” (By “United Nations," those states which had signed the Declaration by United Nations of 1 January 1942 were meant). Neither of the European Axis Powers, Germany and Italy, signed or adhered to the Agreement.
Article 1 of the London Agreement instituted "an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location, whether they be accused individually or in their capacity as members of organizations or groups or in both capacities.” According to Article 2, “The constitution, jurisdiction and functions of the International Military Tribunal shall be those set out in the Charter annexed to this Agree