Изображения страниц
PDF
EPUB

point, and this point only, that when the Security Council by a specified majority and with the concurring votes of all its permanent members has decided that an act of aggression against one of the members of the Organization has taken place, there will immediately result a clear and unmistakable duty on every member of the Organization, great and small, to resist and defeat that aggression by the means laid down by the Security Council.

In view of the importance which the consideration of this proposal assumed in the Committee, the New Zealand Delegation desires through this declaration before Commission I to place on public record the fact that despite the restricted time made available for its discussion in the Committee, the New Zealand amendment received 26 votes in its favor against 18 contrary votes. It is clear that this vote, while falling short by a very small margin of the two-thirds majority required for the submission of a text to the Commission, shows a substantial majority which cannot be ignored in favor of the proposal which in the opinion of the New Zealand Delegation is of fundamental importance if this Organization is to function effectively.

The New Zealand Delegation does not propose to move an amendment in the Commission but in view of the very definite expression of the Committee's opinion in support of the New Zealand amendment, it calls the attention of the nations assembled at the Conference to what it considers to be a great defect in the principles of the Charter. We do this with the earnest hope that the Security Council in its work of resisting aggression and establishing and maintaining international peace and justice, with the support of all the United Nations, and with increasing experience and competence, will find it possible and advantageous to accept the New Zealand proposal in practice as a guiding and basic principle in what I devoutly trust will be its realistic approach to the problems with which it will have to deal.

PRESIDENT (speaking in French; English version as delivered by interpreter follows): Are there no speakers on Article 4? Any remarks? Adopted.

Paragraph 5 will now be read by Mr. Malcolm Davis.

EXECUTIVE OFFICER:

All members of the Organization shall give every assistance to the Organization in any action undertaken by it in accordance with the provisions of the Charter.

PRESIDENT (speaking in French; English version as delivered by interpreter follows): No speaker? No remarks? Adopted. Paragraph 6.

EXECUTIVE OFFICER:

All members of the Organization shall refrain from giving assistance to any state against which preventive or enforcement action is being undertaken by the Organization.

PRESIDENT (speaking in French; English version as delivered by interpreter follows): No speaker? No remarks? Adopted.

We shall take the last proposal on our agenda today, paragraph 7. EXECUTIVE OFFICER: The Committee approved alternative wordings for paragraph 7, referring to the Coordination Committee the question as to which of these wordings it might be more advisable, finally, to use.

The paragraph, consequently, reads:

The Organization shall insure (or should insure) that states not members of the Organization act in accordance with these principles so far as may be necessary for the maintenance of international peace and security.

PRESIDENT (Speaking in French; English version as delivered by interpreter follows): I will give a few explanations on these two alternatives.

If we adopt "shall", this means that we mark more strongly the obligations of the Organization as regards its own members. But certain delegates, members of the Committee, pointed out that it would be rather paradoxical that the Organization should impose obligations on itself, and that it would be preferable just to mark a tendency. But this is only a matter of form, of drafting, rather than of substance, and we thought it preferable to have it settled by the competent committee, that is, the Coordination Committee.

No speakers? Any remarks? Adopted.

There remains in this Chapter II a last paragraph, number 8, which was adopted only yesterday by our Committee, but it will-it must— form the subject of a special report. We shall examine this report when the report on Chapter III is submitted to our Commission.

We have now concluded our agenda, and I have now the duty to thank you all for this demonstration of free public debate. The meeting is adjourned.

Verbatim Minutes of Third Meeting of Commission I, June 19

Doc. 1167, June 23

PRESIDENT (Mr. Rolin, Belgium, speaking in French; English version as delivered by interpreter follows): As you know, in the course of the first two meetings of this Commission, we considered the Preamble to the Charter, as well as the first two chapters, with the exception of paragraph 8 of Chapter II. We shall, first of all, consider this Chapter, this paragraph, after which we shall take up the report of Committee 2 of Commission I. That is to say, we shall consider in succession Chapters III, IV, X, and XI. I shall now call on the Chairman, Mr. Manuilsky (Ukrainian Soviet Socialist Republic), the Rapporteur, Farid Zeineddine (Syria), and the Secretary of the Committee, Mr. McClintock, to come and sit on the rostrum. I now ask Mr. Malcolm W. Davis, the Executive Officer, to read the text of the paragraph under discussion.

EXECUTIVE OFFICER:

Nothing contained in this Charter shall authorize the Organization to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under this Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VIII, Section B.

PRESIDENT (speaking in French; English version as delivered by interpreter follows): The report from the Rapporteur on this point was circulated only this morning, and you know that the report did not get the formal approval of the Committee for the simple reason that the Committee had no time to consider it. We, therefore, ask the Rapporteur to submit the report in his own name, it being understood that you can all send us-that you can all send your remarks in writing

on the substance of his report, or submit your remarks here.

We shall, therefore, in this Commission meeting, decide upon the actual text of the final report to be submitted by this Commission. A final report will be submitted to us at our last meeting. If nobody requests that the report shall be read, it will not be read here, but the Rapporteur will, of course, hold himself at the disposal of the Commission to give explanations on any points on which they may be

necessary.

I have two speakers on my list, Mr. Payssé from Uruguay and Mr. Dehousse from Belgium, who both have asked to explain their vote. I shall now call on Mr. Payssé from Uruguay.

Mr. PAYSSÉ (speaking in Spanish; English version as delivered by interpreter follows): Mr. Chairman, Fellow Delegates, the Government of Uruguay is in accord with the incorporation in the text of the rule of respect for what we call domestic jurisdiction, still necessary in this stage of evolution that international order has achieved. It also supports the exception to this rule proposed by the four sponsoring powers and limited by the proposal made by the Delegation of Australia, and which makes possible the action of the Security Council for maintaining peace in the face of threats or acts of aggression. But for the Delegation of Uruguay, in the proposed text, there are two serious technical mistakes of great importance with which it does not sympathize nor associate itself.

In the first place, how is the matter of domestic jurisdiction to be defined? In the second place, who shall define the matters of domestic jurisdiction? Both aspects are fundamental, as well for the community as for each member state. And furthermore, they embrace something of great concern from the point of view of doctrine and of moral and psychological sense of values for the peoples.

The first question: "What is to be understood by the matters which fall exclusively within the field of domestic jurisdiction?" The Delegation of Uruguay has supported and voted for two concrete proposals presented by the Delegates of Greece and of Belgium, and which refer to the rules of international law. The Dumbarton Oaks Proposals also respected this criterion with reference to international law already adopted by the League of Nations in paragraph 8 of Article 15 of the Covenant of the League. In the presence of this thesis, it is now desired to affirm that the criterion of whether any question is of a domestic character is to be decided and determined by the interested state. It has been stated by the illustrious representative of the United States, Mr. John Foster Dulles, that the criteria of international law in this matter are vague and indefinite and would give ground to very complicated questions. We say that he is right, but we affirm that always in the most insecure and indefinite international order, the state engaged in the controversy under the pressure of its own interests will always give surprising judgments in each case. In this regard, the Delegation of Uruguay defends the principle enunciated in the Dumbarton Oaks Proposals.

Second question: "In the case of a conflict of opinions, who will determine which authoritative organ will decide on the internal, domestic, or reserved character of the question?" Since Versailles and with the acceptance of the proposal of President Wilson regarding respect for domestic jurisdiction inspired by ex-President Taft and the policy of the Republican Party, the jurisdictional definition was

to be by the Council with the necessary advisory opinion of the International Court and of ad hoc commissions of jurists.

In brief, there were two great conquests in the international order: one, the substitution for the anti-juridical criterion of judgment by the interested party, the jurisdictional organ; and second, the substitution for political opinion of the technical juridical opinion.

Mr. President, with the rule now proposed a great jump backwards will be taken the definition of the question according to domestic law made by the interested member itself, made according to a political criterion, and not according to a juridical criterion. The Delegation of Uruguay therefore voted in favor of the proposal made by the Delegation of Greece and later voted for the proposal made by the Delegation of Belgium.

It must be pointed out that in the midst of the deliberations of the Committee as well as with reference to the norms of international law as to the matters of the jurisdiction of the Court, these received the majority of the votes without obtaining two thirds. And this view that we are supporting was the thesis supported by Mexico, Peru, Argentina, and Brazil in the deliberations of the Committee.

In this debate on Article 8 there is implied an unfortunate regression which will indicate to the world a state of mistrust regarding the rule of international law and the organs of international justice.

Uruguay along with Belgium, Greece, and Norway, voted against this provision. Now the Delegation of Uruguay limits itself to stating that it will abstain from voting on this provision with a firm conviction that no small and weak state can renounce the rules of international law and judicial jurisdiction which are its firmest guaranties. PRESIDENT (speaking in French; English version as delivered by interpreter follows): I shall now call on Mr. Dehousse, the Delegate of Belgium.

Mr. DEHOUSSE (speaking in French; English version as delivered by interpreter follows): The Belgian Delegation will not vote in favor of the clause which constitutes paragraph 8 of Chapter II. The reasons for our decision are clear. First of all, the Belgian Delegation feels that the drafting of this text is rather unfortunate. The principle of the reserved sphere of action is formulated vaguely and very vaguely indeed. The report of Committee 1 of Commission I said it was because it was a very general principle applicable to the whole of the Charter. That is an explanation with which we cannot agree. But mostly we regret that the present paragraph should lead to favoring an extensive interpretation of the exception which is and which must remain the domain of exclusive jurisdiction.

The formula used in the Covenant of the League of Nations, Article 15, paragraph 8, was undoubtedly better. A criterion was given for the determination of the limits of exclusive jurisdiction and that was the reference to international law. Here this reference was done away with so that there is a risk that the article may be interpreted in such a way that each country would finally be the judge of the extent of that exclusive jurisdiction.

Such a conception, if that should happen to be adopted, would have the most deplorable results. It would be a continual obstacle to the action of the Security Council. It would further prevent the action of many of the bodies provided for in the Charter, more particularly that of the Economic and Social Council; from that last point of view also many difficulties might arise in practice. Therefore, the

Belgian Delegation regrets that Committee 1 of Commission I should have deleted any reference to international law such as was in the Covenant of the League of Nations, and should also have replaced the words "exclusive competence" by "domestic jurisdiction". The Belgian Delegation does not wish, however, to take a negative attitude in this matter. An unfavorable vote could only be justified if it was given on the basis of fears of an extremely grave nature and it does not seem to the Belgian Delegation that the fears alluded to in the Committee are all well-founded.

Many references have been made to the difficulties which the present drafting of the paragraph would put in the way of the competence and therefore of the actual work of the judicial organs or of the organs of arbitration. But after giving the matter due consideration, the Belgian Delegation does not share that opinion.

If we take the most simple case, that of two states which have accepted the compulsory jurisdiction of the International Court of Justice, as it is provided in Article 36 of the new Statute of the Court, and if one of those states should allege that it can reject the intervention of the Court because of the fact that the question raised falls within the exclusive jurisdiction, the functioning of the Court is not thereby paralyzed in any way. The reason is that according to the words, to the terms of Article 36, paragraph 4, of its Statute, the Court itself is the only judge of its own competence, and can and may therefore determine whether the exclusive jurisdiction clause may or may not be invoked.

Further, most cases in which the Court will be called upon to decide will very probably be cases in which the application of treaties will have to be considered. And it is the most elementary truth that the existence of such treaties, even if they bear on matters within the jurisdiction of the national country, such as questions of nationality or tariff barriers, draws those questions out of the exclusive jurisdiction of the parties and makes the Court competent to deal with them.

The clause in paragraph 8, therefore, does not seem of such a nature as to impede the functioning of the International Court, and the same situation would arise as regards the functioning of other organs instituted by the Charter.

The Belgian Delegation, therefore, feels that under its present form the wording of paragraph 8 is rather unfortunate, but for the reasons also given it will abstain from taking part in the vote.

PRESIDENT (speaking in French; English version as delivered by interpreter follows): No other member of the Commission has asked to be recognized. If that is so I shall declare the proposal adopted. Does any delegate wish to speak?

The Delegate of Peru, Mr. Manuel C. Gallagher, Minister of Foreign Affairs.

Mr. GALLAGHER (speaking in Spanish; English version as delivered by interpreter follows): Mr. President, I just want to make a brief observation with reference to the French text of this report.

I wish that we might add at the end of page 2 a brief statement to the effect that Peru made a proposal that it be the International Court of Justice that shall determine whether a matter pertains to domestic jurisdiction or not.

PRESIDENT (speaking in French; English version as delivered by interpreter follows): I shall call on the Rapporteur.

RAPPORTEUR (Mr. Zeineddine, Syria): Mr. President, I find no

« ПредыдущаяПродолжить »