January 22, 1974, reviewed the mediation role of the United States in the negotiations leading to the conclusion of the Egypt-Israel disengagement agreement of January 18, 1974. In response to questions, Secretary Kissinger said the following:

*

First, there is an agreement between Egypt and Israel signed by the Chiefs of Staff of Egypt and Israel at kilometer 101-and which has been published in the newspapers.

Secondly, there exists an undertaking about the limitation of forces in the zones of limited armament, and elsewhere, between Egypt and Israel that came about as the result, technically, of a U.S. proposal made by the United States to both sides. The reason was that both sides found it easier to accept a U.S. proposal as to the limitation of their forces than to accept limitations which seemed to be demanded by the other side about their deployment.

This proposal was transmitted in a letter by the President to the heads of government of Egypt and Israel in which it was pointed out that acceptance of this identical document that signature of this document would constitute acceptance and that it would thereby become part of the basic agreement. It therefore does not constitute a U.S. guarantee, but it was a device by which the United States made it possible to convey to the other their acceptance of certain limitations on the armaments. This, at the request of both sides, has not been published; and since it is not a U.S. obligation, we felt we had to acquiesce in the views of the parties.

Thirdly, in the process of negotiating the agreement, both of the parties asked us questions about the intentions of the other that were not part of the formal agreement but that nevertheless made it easier for them to plan their own course.

And we therefore, sometimes in writing, sometimes orally, would do one of two things. We would either ask one of the parties what its intention was with respect to the problem at issue, and we would then communicate that statement of intentions to the other side, in effect saying: "We have been informed that the Egyptian Government" or that the Israeli Government-"plans to do the following." Sometimes we were asked what our interpretation was of certain clauses, and in that case we did that-sometimes in writing, sometimes orally. In the cases that now come to my mind, it turned out that our interpretations were identical with the interpretations of both of the parties, and therefore it was essentially irrelevant. Now, are we guarantors of the agreement?

In the sense of having a formal obligation to take specific action in case of violation of the agreement, we are not guarantors.

In the sense that we will be in some way involved if the agreement breaks down, all of recent history in the Middle East indicates that if there is an outbreak in the Middle East, the United States is involved whether or not it has engaged in prior diplomatic activity. It is certain that if there is another conflict, one or both of the parties are going to ask us for diplomatic support-and in that sense it is of course true that our judgment as to who violated the agreement will

affect the course that we will pursue. But in the legal sense, there is no obligation that the United States has taken to enforce the agreement.

The congressional leaders were given a detailed account of all of these assurances as well as of the content of any unpublished document.

Secondly, it makes a great deal of difference whether we publish a document to which the United States is a party and which therefore spells out an American obligation-or whether we publish a document which, in effect, spells out the obligations of other parties and in which we played a mediating role because of the confidence these other parties had in us. I would suggest that there is an enormous difference in these two situations. Nevertheless the congressional leaders have been informed about these matters.

We hope that a process can be generated by which the disengagement of forces on the Syrian side can be negotiated with the same seriousness as on the Egyptian side, and we have indicated that we would be prepared, if the two parties request it, to offer our good offices.

My personal role has been produced by the fact that both parties found it easier to convey certain ideas through an intermediary and because, given the hostility in the area, it was useful to have a more impartial third party convey certain considerations and particular assurances. It is to be hoped that as these negotiations develop, and as the parties gain confidence in each other, the role of a mediator will become less crucial. But given the importance to the peace of the whole world of making progress toward a settlement in the Middle East, I don't want to take a dogmatic position on that issue.

Dept. of State Bulletin, Vol. LXX, No. 1807, Feb. 11, 1974, pp. 137–145.

Customs Cooperation

The 1971 Customs Convention on the International Transit of Goods, approved by the Senate on January 21, 1974, provides for mediation of disputes under the Convention. Article 56 of the Convention. provides, in paragraph 1, that any dispute between contracting parties concerning the interpretation or application of the Convention shall, so far as possible, be settled by negotiation between them. Under paragraph 2, any dispute not settled by negotiation is to be referred by the contracting parties in dispute to the contracting parties, meeting in conformity with Article 55 of the Convention. The contracting parties are to consider the dispute and make recommendations for its settlement. Paragraph 3 provides that the contracting parties in dispute

may agree in advance to accept the recommendations of the contracting parties as binding.

Article 55 calls for the contracting parties to meet together when necessary in order to consider the operation of the Convention and, in particular, to consider measures to secure uniformity in its interpretation and application.

See Ch. 10, § 2, supra, pp. 489-490.

Factfinding

Secretary of State Henry A. Kissinger, in an address to the Conference of Tlatelolco, Mexico City, February 21, 1974, said that the nations of the Western Hemisphere "might consider the establishment of a working group to examine various procedures for factfinding, conciliation, or the settlement of disputes" with respect to differences concerning the respective rights and obligations of private U.S. firms operating in foreign countries, and the countries which host them. He stated that "a procedure acceptable to all the parties would remove these disputes as factors in United States Government decisions respecting assistance relationships with host countries."

Dept. of State Press Release, No. 62, Feb. 21, 1974, p. 5; Dept. of State Bulletin, Vol. LXX, No. 1812, Mar. 18, 1974, pp. 257–262. See also Ch. 9, § 1, supra, pp. 417418.

The Declaration of Tlatelolco, issued on Feb. 24, 1974, contained the following provisions with respect to factfinding for controversies involving private foreign investment:

(3) The Foreign Ministers agreed that, if progress toward a new interAmerican solidarity is to be made, solutions must be found not only to existing differences, but means must also be provided for the solution of problems that may arise.

(4) In this spirit, the Foreign Ministers of Latin America have taken due note and will continue to examine the suggestion advanced by the Secretary of State of the United States of America with respect to the controversies that may arise from matters involving private foreign investment.

The Secretary of State of the United States proposed the establishment of a factfinding or conciliation procedure that would limit the scope of such controversies by separating the issues of fact from those of law. This could provide an objective basis for the solution of disputes without detriment to sovereignty. He further proposed the creation of an inter-American working group to study the appropriate procedures that might be adopted.

Dept. of State Press Release, No. 67, Feb. 24, 1974, pp. 4-5; Dept. of State Bulletin, Vol. LXX, No. 1812, Mar. 18, 1974, pp. 262-264.

Jack B. Kubisch, Assistant Secretary of State for Inter-American Affairs, made a statement on the Conference and Declaration of Tlatelolco at a Department of State news briefing on February 25,

1974. With respect to fact finding for controversies involving private foreign investment, Mr. Kubisch said, in part:

this is sometimes the "conflict of law": the "Calvo doctrine" on the one hand, and the United States position on the other.

But many, many of the disputes do not really turn on questions of law, but on questions of fact. And it has been our view, and Secretary Kissinger's view, that if we could divorce the questions of law and sovereignty from questions of fact, a great number of these disputes might be settled without ever trying to resolve the different legal positions of the two governments. And so it was with that in mind that he proposed that some new process or mechanism or procedure be agreed on which would provide for the examination of such disagreements and disputes, separate out the fact from the law, and see whether or not the dispute could be settled simply on the basis of the facts and fairness and equity to all the parties concerned. Dept. of State News Briefing, DPC 31, Feb. 25, 1974, pp. B14-B15.

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Arbitration

Multilateral Agreements

Intervention on the High Seas

The 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (ratified by the United States on February 21, 1974), and the 1973 Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other Than Oil (signed by the United States on March 7, 1974), both contain provision for conciliation or arbitration of disputes. See Ch. 7, § 9, supra, pp. 363-364, and this Chapter, § 1, supra, pp. 653–656. Chapter II of the Annex to the Convention, which is also applicable to the 1973 Protocol, contains the arbitration provisions, and reads as follows:

CHAPTER II.-ARBITRATION

ARTICLE 13

1. Arbitration procedure, unless the parties decide otherwise, shall be in accordance with the rules set out in this Chapter.

2. Where conciliation is unsuccessful, a request for arbitration may only be made within a period of 180 days following the failure of conciliation.

ARTICLE 14

The Arbitration Tribunal shall consist of three members: one Arbitrator nominated by the coastal State which took the measures. one Arbitrator nominated by the State the nationals or property of which have been affected by those measures, and another Arbitrator

who shall be nominated by agreement between the two first-named, and shall act as its Chairman.

ARTICLE 15

1. If, at the end of a period of 60 days from the nomination of the second Arbitrator, the Chairman of the Tribunal shall not have been nominated, the Secretary-General of the Organization upon request of either party shall within a further period of 60 days proceed to such nomination, selecting from a list of qualified persons previously drawn up in accordance with the provisions of Article 4 above. This list shall be separate from the list of experts prescribed in Article IV of the Convention and from the list of Conciliators prescribed in Article 4 of the present Annex; the name of the same person may, however, appear both on the list of Conciliators and on the list of Arbitrators. A person who has acted as Conciliator in a dispute may not, however, be chosen to act as Arbitrator in the same matter.

2. If, within a period of 60 days from the date of the receipt of the request, one of the parties shall not have nominated the member of the Tribunal for whose designation it is responsible, the other party may directly inform the Secretary-General of the Organization who shall nominate the Chairman of the Tribunal within a period of 60 days, selecting him from the list prescribed in paragraph 1 of the present Article.

3. The Chairman of the Tribunal shall, upon nomination, request the party which has not provided an Arbitrator, to do so in the same manner and under the same conditions. If the party does not make the required nomination, the Chairman of the Tribunal shall request the Secretary-General of the Organization to make the nomination in the form and conditions prescribed in the preceding paragraph. 4. The Chairman of the Tribunal, if nominated under the provisions of the present Article, shall not be or have been a national of one of the parties concerned, except with the consent of the other party or parties.

5. In the case of the decease or default of an Arbitrator for whose nomination one of the parties is responsible, the said party shall nominate a replacement within a period of 60 days from the date of decease or default. Should the said party not make the nomination, the arbitration shall proceed under the remaining Arbitrators. In the case of decease or default of the Chairman of the Tribunal, a replacement shall be nominated in accordance with the provisions of Article 14 above, or in the absence of agreement between the members of the Tribunal within a period of 60 days of the decease or default, according to the provisions of the present Article.

ARTICLE 16

If a procedure has been initiated between two parties, any other party, the nationals or property of which have been affected by the same measures or which is a coastal State having taken similar measures, may join in the arbitration procedure by giving written