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The terms of paragraph 1 do not mean that the exterritoriality of warships is limited in any way during the passage through the territorial sea. The object of the provision is only to emphasize that while the warship is in the territorial sea of the coastal State the vessel must comply with the laws and regulations of that State concerning navigation, security, health questions, water pollution and the like.

42. NOTE VERBALE FROM THE REPRESENTATIVE OF THE UNITED STATES AT THE UNITED NATIONS TO THE SECRETARY-GENERAL OF THE UNITED NATIONS, FEBRUARY 3, 19551

The Representative of the United States of America to the United Nations presents his compliments to the Secretary-General of the United Nations and has the honor to refer to the note LEG 292/9/01, dated August 31, 1954, from the Principal Director in charge of the Legal Department, concerning the Draft Articles on the Regime of the Territorial Sea of the International Law Commission set out in the Report covering the work of its sixth session, June 3-July 28, 1954.2

The Commission prepared a provisional text for all but four of the articles of the proposed draft and requested the comments of Governments on these articles. Among the articles for which no text has yet been drafted is Article 3 concerning the breadth of the territorial sea. With respect to this article, the Commission requested views and suggestions which might help it to formulate a concrete proposal.

So far as concerns the articles now drafted, the Government of the United States believes that they constitute, as a whole, a sound exposition of the principles applicable to the regime of the territorial sea in international law. The Government of the United States has, however, certain suggestions to make with respect to Articles 5 and 19.

Article 5 provides inter alia that where circumstances necessitate a special regime because the coast is deeply indented or cut into "or because there are islands in its immediate vicinity" the base line may be independent from the low-water mark and may be a series of straight lines. The Government of the United States presumes from the comments which follow the article that it was not intended that the presence of a few isolated islands in front of the coast would justify per se the use of the straight line method. The islands, as the comments indicate, would have to be related to the coast in somewhat the same manner as the skjaergaard in Norway. In the view of the Government of the United States, the words "or because there are islands in its immediate vicinity" are too general and do not convey as accurately as desirable what the Commission apparently had in mind.

With respect to Article 19, the Government of the United States is

1 Department of State Bulletin, Apr. 25, 1955, pp. 699–700.

* Supra.

satisfied that the text incorporates principles upheld by the International Court of Justice in its judgment of April 9, 1949, in the Corfu Channel case,' but it believes that the comments on this article should include a short statement of the factual circumstances upon which the court was ruling, since such a statement would point up and illustrate the significance and meaning of the principles embodied in Article 19.

So far as concerns the question of the breadth of the territorial sea and the various suggestions set out in paragraph 68 of the Report, the guiding principle of the Government of the United States is that any proposal must be clearly consistent with the principle of freedom of the seas. Some of the proposals amount to a virtual abandonment or denial of that principle. In this connection it must be pointed out that the high seas are an area under a definite and established legal status which requires freedom of navigation and use for all. They are not an area in which a legal vacuum exists free to be filled by individual states, strong or weak. History attests to the failure of that idea and to the evolution of the doctrine of the freedom of the seas as a principle fair to all. The regime of territorial waters itself is an encroachment on that doctrine and any breadth of territorial waters is in derogation of it; so the derogations must be kept to an absolute minimum, agreed to by all as in the interest of all.

That the breadth of the territorial sea should remain fixed at three miles, is without any question the proposal most consistent with the principle of freedom of the seas. The three-mile limit is the greatest breadth of territorial waters on which there has ever been anything like common agreement. Every one is now in agreement that the coastal state is entitled to a territorial sea to that distance from its shores. There is no agreement on anything more. If there is any limit which can safely be laid down as fully conforming to international law, it is the three-mile limit. This point, in the view of the Government of the United States, is often overlooked in discussions on this subject, where the tendency is to debate the respective merits of various limits as though they had the same sanction in history and in practice as the three-mile limit. But neither 6 nor 9 nor 12 miles, much less other more extreme claims for territorial seas, has the same historical sanction and a record of acceptance in practice marred by no protest from other states. A codification of the international law applicable to the territorial sea must, in the opinion of the Government of the United States, incorporate this unique status of the threemile limit and record its unquestioned acceptance as a lawful limit.

This being established, there remains the problem of ascertaining the status of claims to sovereignty beyond the three-mile limit. The diversity of the claims involved bears witness, in the opinion of the Government of the United States, to the inability of each to command the degree of acceptance which would qualify it for possible consideration as a principle of international law. Not only does each proposed limit fail to command the positive support of any great number of nations, but each has been strongly opposed by other nations. This

1 International Court of Justice Reports, 1949, pp. 4 ff.

defect is crucial and, in view of the positive rule of freedom of the sea now in effect in the waters where the claims are made no such claim can be recognized in the absence of common agreement. A codification of the international law applicable to the territorial sea should, in the view of the Government of the United States, record the lack of legal status of these claims.

While unilateral claims to sovereignty or other forms of exclusive control over waters heretofore recognized as high seas can not be regarded as valid, this is not to say that the reasons, legitimate or otherwise, which motivate such claims should be ignored. In some cases, at least, these attempts of the coastal state to appropriate to its exclusive use large areas of the high seas seem to be based on a real concern for the conservation of the resources of the sea found in such Efforts of the Commission and of the nations to settle such problems should be unceasing. But the remedy is not unilateral action in defiance of long established and sound principles of law applicable to other matters. In many cases the nations taking such action would seem to have little to gain from abandonment of such principles and reversion to a condition of anarchy on the high seas. The sounder approach would appear to be an effort to reach agreement on the principles applicable to the real matters at issue, such as conservation of natural resources and rights to fish.

Review of the Charter 1

1

43. STATEMENT BY THE SECRETARY OF STATE BEFORE THE SENATE FOREIGN RELATIONS SUBCOMMITTEE ON THE UNITED NATIONS CHARTER, JANUARY 18, 1954 2

The United Nations Charter represents man's most determined and promising effort to save humanity from the scourge of war and to establish justice between the nations. In negotiating the charter terms, the United States was represented by a distinguished bipartisan delegation, largely drawn from the Congress, and the charter was ratified by the Senate by almost unanimous vote.

1 Article 109 of the charter sets forth procedures for the calling of a general conference of review. During the General Assembly sessions of 1946, 1947, and 1948 there was some pressure but little support for revision of the charter. The United States (1946) was opposed to any "hasty attempt to amend." It was not until the eighth session of the assembly (1953) that any general debate on the subject took place.

In the United States, early pressure for revision or review found expression in the Vandenberg Resolution (S. Res. 239, 80th Cong., 2d sess., June 11, 1948; A Decade of American Foreign Policy, p. 197) calling for agreement to restrict the use of the veto and a general strengthening of the United Nations. The Senate

(Footnote continued on next page)

The United Nations, thus launched, carried the ardent hopes of the American people, and indeed the peoples of all the world. The responsible leaders of our Nation, without regard to party, have repeatedly said that the charter represents the cornerstone of U.S. foreign policy.

It must in all frankness be recognized that the high hopes born of the San Francisco conference of 1945 have not been fully realized. This is due to two principal causes.

In the first place, many initial hopes were exaggerated. War is not abolished, and a system of justice inaugurated, merely by strokes of the pen. If that were the case, we would have had international peace and justice long ago. Just and durable peace requires sustained and well-directed efforts comparable in dedication to the efforts needed to win victory in war.

However the written word continues to exert a peculiar fascination, and there is a recurrent tendency to treat as done that which, according to a treaty, ought to be done. Hopes which had only this basis were doomed to be disappointed.

In the second place, many provisions of the charter depended on cooperation by the so-called "great powers," and in fact the members of the Soviet Communist bloc have pursued policies which departed from the spirit, and indeed the language, of the charter.

Nevertheless, the United Nations has a record of conspicuous

Committee on Foreign Relations (S. Rept. 1361, 80th Cong., 2d sess., May 19, 1948) concluded that it would be "unwise to insist at the present time on the revision of the charter."

Two years later, Congress again became concerned regarding revision. There were extensive hearings, but a continuing reluctance to take positive action. On July 28, 1953 the Senate (Res. 126, 83d Cong., 1st sess.) created a special subcommittee to make a "full and complete study of proposals to amend, revise, or otherwise modify or change existing international peace and security organizations, for the purpose of guiding the Senate in the fulfillment of its responsibility to advise the President with respect to the foreign policy of the United States." The Secretary of State informed the subcommittee that the Department of State would support the calling of a review conference when the question came before the United Nations in 1955.

There was vigorous debate in the eighth session of the General Assembly, resulting in the resolution (796 (VIII)) of November 27, 1953 citing the need for charter review and calling upon the Secretary-General to prepare and make public pertinent documents and studies. A proposal to call a general conference to review the charter was on the Assembly agenda for the ninth session (1955).

For background material see: Senate Committee on Foreign Relations, Reaffirming the Policy of the United States to Achieve International Peace and Security Through the United Nations and Indicating Certain Objectives to be Pursued, S. Rept. 1361, 80th Cong., 2d sess. (May 19, 1948); Senate Committee on Foreign Relations, Revision of the United Nations Charter, S. Rept. 2501, 81st Cong., 2d sess. (Sept. 1, 1950); U.S. Participation in the U.N.: Report by the President to the Congress for the Year 1953 (Department of State publication 5459; 1954); Review of the United Nations Charter: A Collection of Documents, S. Doc. No. 87, 83d Cong., 2d sess.; Review of the United Nations Charter: Compilation of Staff Studies Prepared for the Use of the Subcommittee on the United Nations Charter of the Committee on Foreign Relations, S. Doc. No. 164, 83d Cong., 2d sess.; Francis O. Wilcox and Carl M. Marcy (members of staff of Senate Committee on Foreign Relations), Proposals for Changes in the United Nations, The Brookings Institution, Washington, D.C., 1955.

2 Department of State Bulletin, Feb. 1, 1954, pp. 170–173.

accomplishment. Among major political results which flowed from its processes may be mentioned:

The withdrawal of Soviet forces from Iran;

The support of Greece while under Communist attack;

The conclusion of a permanent armistice between Israel and the Arab States;

The establishment of the Republic of Korea;

The disposition of the Italian colonies in Africa and the creation of the State of Libya;

The establishment of the Republic of Indonesia;

The organization of effec.ive resistance to the armed aggression in Korea.

While the United States bore most of the United Nations burden in Korea, it should not be forgotten that 15 other members contributed armed forces and 46 nations made some form of contribution, either military or economic.

Thus, the United Nations became the first international organization to organize effective collective resistance to armed aggression. The United Nations has helped to transform colonialism into selfgovernment. The role played by the United Nations in this matter has been controversial and it is in some respects subject to legitimate criticism. Undoubtedly, however, it has exerted a useful influence in promoting peaceful rather than violent developments.

In addition to political achievements, the United Nations has provided means for economic and social developments which have benefited a large part of the human race.

In addition to its specific accomplishments, the General Assembly has served as a world forum for the presentation of different points of view. It has become a place where world opinion can register and exert a moral authority which no nation, however powerful or despotic, publicly disdains or wholly disregards.

The greatest weakness of the United Nations-and this was foreseen at San Francisco is the Security Council's inability to discharge its "primary responsibility for the maintenance of international peace and security." (article 24). It has not proved practicable for the Security Council to organize the armed forces, assistance, and facilities which it was contemplated should be put at the disposal of the Security Council (article 43) for the purpose of maintaining international peace and security.

The Council's inability to function as designed has been primarily due to the abuse by the Soviet Union of its so-called veto power.

This same veto power has been abused by the Soviet Union to exclude from membership in the United Nations many countries fully qualified for membership under the terms of article 4, which provides that the United Nations membership is open to all peace-loving states which accept the obligations contained in the present charter and are able and willing to carry out these obligations.

Nations excluded by the Soviet veto are: Austria, Cambodia, Ceylon,

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