seeing that it is adhered to. I say "last resort" because the charter itself imposes on member states the prior duty to seek peaceful settlement of disputes through "negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." The framers of the charter did not assume that even when these remedies had been exhausted the Security Council would always be able to meet its responsibilities. By providing for a great-power veto, they recognized the divisions of power and the paralysis that these divisions might cause. For situations in which the U.N. was unable to act, they reaffirmed in article 51 the inherent right of individual or collective self-defense against aggression. The U.N. is certainly the preferred policeman, but where it cannot act, individual states must accept the responsibility-as the United States and others are doing in Viet-Nam today. This United Nations system of peace and security, then, depends upon the individual actions of states as well as the collective actions of the organization. It is a fragile system, to be sure, but the record of its achievements in the past 20 years proves it far from impotent. In Korea it successfully met open, full-scale aggression. In the Middle East, in Kashmir, in Cyprus, it has kept smoldering conflicts under controland when they leapt out of control, it has created new instruments to put out the flames. In the Congo it prevented a newborn nation, lacking most of the practical essentials of nationhood, from being torn apart, recolonized, or turned into a greatpower battleground in the heart of Africa. And right now in Rhodesia, in a most complex and dangerous situation, the United Nations is exerting its influence for a lawful transition to self-government by all the people-which is the only possible and just basis for Rhodesian independence. It is easy for a critic to say, "Well, some of these problems are nearly as old as the U.N. itself, and they aren't settled yet." This is quite true, and it points up the frustrating difference between the domestic and the international realm. On the Court, I soon learned that the most satisfying words are four in number, and they appear at the end of a Court decision: "It is so ordered." Many of the greatest conflicts the U.N. must handle the "chronic cases" on the international sick list-cannot, we have learned, be cured by issuing orders. Often the greatest success we can hope for is to prevent a relapse into violence until the disputants work the poison out of their systems. That process is normally measured in years and sometimes in generations. These frustrations are all the more severe because the era in which the United Nations was destined to function turned out to be not a tranquil era but one of revolutionary turmoil. Yet the organization has faced that turmoil. It has contributed to the settlement, or at least the defusing, of some of the most dangerous problems of the cold war-including the Berlin blockade, aggression in Korea, the Cuban missile crisis, and the nuclear weapons tests. In the other great revolutionary movement of our time, the passage of so many colonial dependencies into nationhood, the U.N. has provided a framework that could contain the sudden expansion of the community of nations and the often explosive tensions which that expansion brought with it. Let me examine with you some of the ways in which the U.N. has already developed and adapted the body of law and procedure in order to cope with these great political tensions. On the closing day of the charter conference in San Francisco on June 26, 1945, President Truman spoke of the future of the new charter in these words: "This charter, like our own Constitution, will be expanded and improved as time goes on. No one claims that it is now a final or a perfect instrument. It has not been poured into any fixed mold. Changing world conditions will require readjustments-but they will be readjustments of peace and not of war." President Truman's comparison of the charter and our Constitution was correct. Indeed, it could be extended, because in both cases the readjustments of which he spoke can be 3 Text in Public Papers of the Presidents of the United States: Harry S. Truman, 1945, pp. 138-144. achieved by either of two methods: amendment or evolution. Since amendment of the charter is an even more difficult process than amendment of our Constitution, development of the charter's broad provisions has taken place in an evolutionary way. This fact does credit both to those who drafted the charter and to those who have applied it to emerging situations. Indeed, it could be said of the charter what our Supreme Court, in Weems v. United States, said of the Constitution: "Time works changes, brings into existence new conditions and purposes. Therefore, a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meeting passing occasions. They are, to use the words of Chief Justice Marshall, 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be." The United Nations Charter has been applied in precisely this way. Under it, for example, a great variety of influential bodies have been created, such as the committee on the implementation of the declaration on colonialism, the U.N. Emergency Force, the International Law Commission, the highly productive regional economic commissions, and many others. All these have become part of the U.N. institutional structure, positively responsive to the strongly felt needs of the time. Moreover, the effective reach of the original U.N. organs, particularly the Security Council, the General Assembly, and the Secretariat, has been increased substantially over the years by new practices-each adapted to meet new necessities as they arose, each forming a precedent for the future. For example: -It has been established that a permanent member's abstention in the Security Council does not constitute a veto. 217 U.S. 349 (1910). -From the mediating and conciliating powers under chapter VI of the charter and the powers to deal with threats to peace and security under chapter VII, there has developed a highly important capacity to dispatch U.N. peacekeeping forces and other lesser forms of U.N. "presence" to Kashmir, the Middle East, Cyprus, and numerous other points of international danger. -Under the "Uniting for Peace" resolution it has been established that the General Assembly, convoked in emergency session by a veto-free majority of the Security Council, may undertake large-scale peacekeeping tasks which the Security Council itself could not undertake because of the veto." -It has further been established that the Secretary-General, whom the charter calls the U.N.'s "chief administrative officer," is also its chief diplomatist and conciliator and its chief executive with wide discretionary powers under the charter and the mandates of duly adopted resolutions. In addition to these innovations in the working of the organization itself, the United Nations contributes to the growth of law in another way. Some of its resolutions have turned out to be international law in embryo. This is true of a number of famous resolutions in the field of human rights, which-most notably the Universal Declaration of Human Rights-laid down principles later incorporated and refined in binding conventions. We hope it will also be true of President Johnson's new proposal for a treaty on the peaceful use of outer space, which we laid before the U.N. Committee on Outer Space last week for its consideration.' This proposal, too, draws on certain principles embodied in earlier U.N. resolutions and declarations. Other General Assembly resolutions on peace and security questions, even though they have no binding legal force, may provide a basis for peacekeeping operations, and in any event, carry with them the weight of world opinion. If a party to a dispute acts contrary to such a U.N. resolution, it thereby assumes a considerable polit Text in American Foreign Policy, 19501955: Basic Documents, vol. I, pp. 187-192. Text in A Decade of American Foreign Policy: Basic Documents, 1941-1949, pp. 1156-1159. See post, doc. X-27. ical burden to justify its action. How great that burden is depends very much on how many members, and which members, voted and spoke for the resolution in the General Assembly. The U.N. has had to learn the hard way that words on paper can have force and effect only if there lies behind them the requisite political commitment. The World Court duly rendered an advisory opinion that peace keeping costs incurred in the Middle East and the Congo were "expenses of the Organization" and that a member's failure to pay its share was therefore subject to the loss of vote under article 19. The General Assembly gave its verbal acceptance of this opinion in a resolution overwhelmingly adopted." Yet this very provision, having been accepted in words, proved for political reasons to be unenforcible in fact. Nor can the Assembly force the growth of law beyond the realities of the time. Attempts to recodify the law of the charter have not thus far borne much fruit, chiefly because what is needed most is not a new statement of law but better compliance with the law that already exists. 10 Sometimes a proposal made in the Assembly is couched in legal terms but is essentially political in content and purpose. Last fall, for instance, the Soviet Union introduced a resolution on "nonintervention" as a platform from which to attack United States policy in Viet-Nam. This maneuver failed of its purpose when other delegations added language condemning many forms of intervention, including indirect aggression and subversion by proxy. The amended resolution passed by 109 votes to 0, and it is a good political document." But because of the tactical necessities of political compromise, its text was too imprecise and inconsistent to be adequate as a statement of international law. Before closing, I want to turn for a moment from the U.N.'s actions themselves-successful or not, as the case may be to the procedures by which those actions are taken. I must report candidly that a real danger to the UN. as an organization, and to the rule of law of which it is the highest See American Foreign Policy: Current Document, 1962, pp. 109-115. See ibid., p. 118. embodiment, arises from a recent tendency to jettison normal parliamentary procedure for the sake of short-term political gains. This was especially apparent last December at the end of the 20th General Assembly. Certain delegations, understandably impatient with the pace of decolonization, presented a draft resolution calling for strong measures against colonialism. One of its provisions concerned military bases, a subject clearly and undeniably related to international peace and security, which under the charter is explicitly classed as an important question subject to the two-thirds majority requirement. Yet the General Assembly declared this resolution, including the part on military bases, adopted by a simple majority.12 What primarily disturbed us was not the substance of the resolutionwith much of which we could agree but the flouting of due process. When procedures laid down in the charter are not adhered to, the charter's integrity is impaired. Rules of procedure may seem to be dull things, but they are not: They are dikes against the flood of disorder. The observance of them, as I said in the Assembly at the time, is of the essence of liberty. It was my duty to point out to the Assembly the danger not just to some members but to all members, and to the organization itself, if the rules are not followed. And I announced that the United States would regard the resolution in question as having been illegally adopted and therefore as null and void. In taking this position, we were not repudiating an action of the Assembly; on the contrary, we were following a familiar principle of law; namely that unconstitutional action is no action. It is clear that this impatience with rules arises from a passionate desire to achieve certain political objectives without delay-in this case, to make a declaration against colonialism; and I can readily understand the impatience with the vestiges of that system shown by those who have lived under it. This, as well as the fact that no constitution or laws, including our own, command universal observance, should teach us a measure of modesty and patience. But we cannot let patience deteriorate into a habit of laxity, or modesty into a condoning of clear violations of the charter; for 10 See ibid., 1965, p. 178, footnote 29. 11 Text ibid., pp. 190-192. 12 See ibid., p. 185, footnote 49. 13 Text ibid., pp. 192–193. power and have been proved effective in enough cases to show their worth. To become increasingly effective, they must be applied with imagination and common sense to the real problems of our turbulent and revolutionary era. The more turbulent and revolutionary the world situation is, the more vital it is that we increasingly perfect the rule of law-not only its restraint of violence but also its remedies against injustice. I believe the existence of the U.N. during the past 20 years, beset with the dangers of war and the persistent pressures of revolutionary change in every continent, has been a decisive blessing to mankind. It has been a meeting ground between East and West when hardly any common interests could be perceived save the interest in sheer survival. And today it affords coherent framework and a place of dignity and influence to some 50 nations, newly born from the colonial age. It is their international home, their badge of legitimacy, their disinterested helper and adviser, their training ground in the arts of diplomacy-the visible sign of their stake in the community of nations. There are still some who dream of an international utopia in which a few civilized states could use their power to settle the affairs of the world, much as the major powers of Europe did in the century after the Congress of Vienna. But we should remember that, when the rule of the Concert of Europe finally fell apart, world war ensued. This happened in great part because, in large areas of the world, the international order of the 19th century did not redress grievances but merely submerged them—until in our own century they erupted in revolution and world war. The world law we seek will be different. It will extend impartially to white and black, north and south, old and new. It will still be imperfect; it will still depend for its effectiveness on the willingness of the stronger nations to put their power at its service. But it will embrace in a spirit of equality all the races and cultures of the world and it will address itself to the real troubles of mankind: poverty, inequality, and the deprivation of rights. In that respect, it will surpass even the hundred years' peace of the Congress of Vienna, which was based on the subjection or impotence of half of the world's peoples. Our nation derives its great influence in the world not only from great physical power but also from the fact that our basic law and our national outlook are premised on the equality and dignity of all men. The way to peace in this turbulent age is to keep to that national vision; to work with all our might for the establishment of a structure of law that will be reliable and just to all nations. For though law alone cannot assure world peace, there can be no peace without it. Our national power and all our energies should operate in the light of that truth. Document II-84 Public Law 89-658, Approved October 14, 1966 16 United States Establish- AN ACT To establish a contiguous fishery zone beyond the territorial sea of the United States.11 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there is established a fisheries zone contiguous to the territorial sea of the United States. The United States will exercise the same exclusive rights in respect to fisheries in the zone as it has in its territorial sea, subject to the continuation of traditional fishing by foreign states within this zone as may be recognized by the United States.18 SEC. 2. The fisheries zone has as its inner boundary the outer limits of the territorial sea and as its seaward 16 80 Stat. 908. One nautical mile equals 1.15 statute miles, or 1.85 kilometers. boundary a line drawn so that each point on the line is nine nautical miles from the nearest point in the inner boundary. SEC. 3. Whenever the President determines that a portion of the fisheries zone conflicts with the territorial waters or fisheries zone of another country, he may establish a seaward boundary for such portion of the zone in substitution for the seaward boundary described in section 2. SEC. 4. Nothing in this Act shall be construed as extending the jurisdiction of the States to the natural resources beneath and in the waters within the fisheries zone established by this Act or as diminishing their jurisdiction to such resources beneath and in the waters of the territorial seas of the United States. Document II-85 Resolution 2158 (XXI), Adopted by the U.N. General Assembly, November 25, 1966 19 Permanent Sovereignty Over Natural Resources The General Assembly, Recalling its resolutions 523 (VI) of 12 January 1952,20 626 (VII) of 21 December 1952 21 and 1515 (XV) of 15 December 1960,22 Recalling further its resolution 1803 (XVII) of 14 December 1962 on permanent sovereignty over natural resources,23 Recognizing that the natural resources of the developing countries constitute a basis of their economic development in general and of their industrial progress in particular, 19U.N. doc. A/6316, pp. 29-30. This resolution, recommended by Committee II of the U.N. General Assembly, was adopted by a vote of 104 to 0, with 6 abstentions (including the U.S.); see infra. 20 Text in U.N. General Assembly Official Records, Sixth Session, Supplement No. 20 (A/2119), p. 20. 21 Text ibid., Seventh Session, Supplement No. 20 (A/2361), p. 18. 22 Text ibid., Fifteenth Session, Supplement No. 16 (A/4684), p. 9. 23 Text in American Foreign Policy: Current Documents, 1962, pp. 295–297. 11 The United States recognizes the territorial sea as being no more than 3 nautical miles in breadth (Sovereignty of the Sea: Geographic Bulletin No. 3, April 1965 (Department of State publication 7849), p. 4). 18 The United States notified governments likely to be concerned, such as Japan, of its willingness to consider such views as those governments desired to advance regarding the law and continuation of their fisheries in the new zone (Department of State Bulletin, Jan. 30, 1967, p. 178). |