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On the same date, Ambassador John R. Stevenson, Special Representative of the President for the U.N. Conference and head of the U.S. delegation at Geneva, summarized for the subcommittee the disputes settlement accomplishments of the session as follows:
In the dispute-settlement working group most states supported binding dispute-settlement procedures in areas of national jurisdiction although a minority opposed or wished to limit drastically their applicability, e.g., to navigation and pollution issues. Questions remain with respect to the relationship to coastal state resource jurisdiction and the scope and type of the dispute settlement mechanism. A compromise proposal permitting states to elect between three dispute settlement mechanisms—i.e., the International Court of Justice, arbitration, or a special law of the sea tribunal—was acceptable to the vast majority of participants. However, some delegations considered that their preferred mechanism should be compulsory in all cases, while others favor a functional approach-different machinery for different types of disputes. There was general support for special dispute machinery for the deep seabed.
The informal single negotiating text on settlement of disputes is at A/ CONF.62/WP.9, July 21, 1975. The statements quoted above by Mr. Moore and Ambassador Stevenson may be found in Hearing on Status Report on Law of the Sea Conference before the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 94th Cong., 1st Sess., June 4, 1975, pp. 1179 and 1173, respectively.
United Nations Charter
Monroe Leigh, Legal Adviser of the Department of State, made a statement in the Legal Committee at the United Nations on November 14, 1975, in which he said that the United States had fully reviewed its position with respect to Charter review and continued to regard the question with skepticism and concern. He pointed out that there was much to be done in the field of dispute settlement and prevention, and in terms of making the U.N. system more effective, which could be accomplished within the existing Charter. The following is an excerpt from his statement:
.. a major area of concern to all members of the United Nations, and an area where we might constructively concentrate our energies, is strengthening and development of measures for the peaceful settlement of disputes. There is ... no doubt this can be done wholly within the existing language of the Charter and the Statute of the Court. ... This Committee has in the past looked at the functioning and role of the International Court of Justice. The Court itself recently modified its own Rules of Procedure in potentially significant ways. We should look very closely at the numerous and varied opportunities which the Court machinery provides for peaceful settlement of disputes, and we should ensure that all states in the international community are fully aware of those possibilities. ... we call the attention of the international community to the fact that the Court in its most recent Advisory Opinion appears to have given the Eastern Carelia precedent a richly deserved final burial thus clearly opening up vast new areas for treatment via the Advisory Opinion route.
We recognize that some states are not yet prepared fully to accept the Court as a means of dispute settlement. To those who have hesitated to have recourse to the Court for fear it would apply a form of law created by another era, I would merely urge a careful reading of the recent jurisprudence of the Court. We also recognize that there are some disputes which can best be solved or at least initially ameliorated by other means. We must consequently also examine fully the many other existing and potential facilities for dispute settlement, including the reasons why they are too in frequently used and possible steps we might take to encourage the willingness and ease with which states might regularly resort to them as a customary and attractive means of resolving disputes peacefully.
At what might be regarded as the opposite end of the spectrum from judicial settlement is negotiation between the parties. . . . even this seemingly simple and direct method might benefit from an exploration in terms of modern approaches to problem solving. ... we should take another look at the various approaches pursant to which the participation of a third party is invited, not with a view to deciding the dispute but with a view to inducing the parties to decide as among themselves. This approach would involve good offices and mediation. Good offices normally implies merely bringing the parties together and urging them to try harder while mediation is suggestive of a more active participation by the third party. Clearly the Secretary-General has made recent important contributions in this field. Are there other devices that can be used? Are there special techniques that can be examined? There are also possibilities in the form of factfinding and inquiry. This can be envisaged in terms of bilateral inquiry or in the classical sense envisioned in The Hague Conventions of 1899 and 1907 or pursuant to factfinding as discussed in various General Assembly resolutions. Conciliation is another step in the process of third party involve ment. Is the conciliation mechanism set forth in the Vienna Convention on the Law of Treaties something we should include in all treaties, is it something which should be established as an independent institution of general application? Do the existing institutions provide a useful resource or are changes required? Are there untapped possibilities in the field of arbitration? Certainly an increasing number of purely commercial disputes are settled in this way. Is there some reason why states in our interdependent and potentially self-destructive world should not take another in-depth look at the possibilities of this technique of dispute settlement?
Press Release USUN-148(75), Nov. 14,1975. On Dec. 15, 1975, the U.N. General Assembly adopted by consensus Res. 3499 (XXX), reconvening the Ad Hoc Committee established in 1974, requesting that it examine proposals and suggestions regarding Charter review, and deciding to include its report thereon in the provisional agenda of the 31st Session.
On March 5, 1975, the Department of State issued an outline of U.S. Government efforts to encourage the beginning of negotiations leading to a compromise settlement between the Cambodian factions in consonance with the Paris Agreement on Ending the War and Restoring Peace in Viet-Nam (TIAS 7542; 24 UST 1; entered into force January 27, 1973). Article 20, paragraph (c) of that Agreement provides that the "internal affairs of Cambodia and Laos shall be settled by the people of each of these countries without foreign interference."
The outline stated that U.S. efforts were guided by the following principles:
1. The United States will support any negotiations that the parties themselves are prepared to support.
2. The United States will accept any outcome from the negotiations that the parties themselves will accept.
3. As far as the United States is concerned, the personalities involved will not, themselves, constitute obstacles of any kind to a settlement.
Dept. of State Bulletin, Vol. LXXII, No. 1866, Mar. 31, 1975, p. 401.
On September 29, 1975, Ambassador Robert J. McCloskey, Assistant Secretary of State for Congressional Relations, wrote a letter responding to an inquiry with regard to certain activities of Senators John Sparkman and George McGovern with respect to the Government of Cuba. The question had been raised whether their activities possibly violated 18 U.S.C. 953, which imposes criminal penalties on a U.S. citizen who, without authority of the United States, deals with a foreign government in relation to any dispute with the United States. Ambassador McCloskey replied, in part, as follows:
The clear intent of this provision is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in Section 953, however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of Senators McGovern and Sparkman the executive branch, although it did not in any way encourage the Senators to go to Cuba, was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.
Senator McGovern's report of his discussions with Cuban officials states: “I made it clear that I had no authority to negotiate on behalf of the United States—that I had come to listen and learn...." (Cuban Realities: May 1975, 94th Cong., 1st Sess., August 1975). Senator Sparkman's contacts with Cuban officials were conducted on a similar basis. The specific issues raised by the Senators (e.g., the Southern Airways case; Luis Tiant's desire to have his parents visit the United States) would, in any event, appear to fall within the second paragraph of Section 953.
Accordingly, the Department does not consider the activities of Senators Sparkman and McGovern to be inconsistent with the stipulations of Section 953.
Dept. of State File No. P75 0149-2331. 18 U.S.C. 953 (the “Logan Act") provides:
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.
At a news conference at the Department of State on November 10, 1975, Secretary of State Kissinger was asked if he accepted President Sadat of Egypt's position that there can be no final peace settlement on the Middle East without a solution of the Palestine problem. The Secretary replied:
We agree with the proposition that any final peace settlement must include the interests of the Palestinians and a solution to the Palestinian problem. Our position with respect to the PLO [Palestine Liberation Organization) has been that we cannot make a decision on how to deal with them until they have accepted the State of Israel and until they have accepted the relevant United Nations Security Council resolutions, particularly 242 and 338.
Dept. of State Bulletin, Vol. LXXIII, No. 1901, Dec. 1, 1975, p. 776.
Harold H. Saunders, Deputy Assistant Secretary of State for Near Eastern and South Asian Affairs, set forth the U.S. position on the Palestinian issue in a statement before the Special Subcommittee on Investigations of the House Committee on International Relations on November 12, 1975. Excerpts from that statement follow:
We have . . . repeatedly stated that the legitimate interests of the Palestinian Arabs must be taken into account in the negotiation of an Arab-Israeli peace. .
... the Palestinian dimension of the Arab-Israeli conflict is the heart of that conflict. Final resolution of the problems arising from the partition of Palestine, the establishment of the State of Israel, and Arab opposition to those events will not be possible until agreement is reached defining a just and permanent status for the Arab peoples who consider themselves Palestinians.
... the Palestinians collectively are a political factor which must be dealt with if there is to be a peace between Israel and its neighbors.
The statement is often made in the Arab world that there will not be peace until the “rights of the Palestinians” are fulfilled; but there is no agreed definition of what is meant, and a variety of viewpoints have been expressed on what the legitimate objectives of the Palestinians are:
-Some Palestinian elements hold to the objective of a binational secular state in the area of the former mandate of Palestine. Realization of this objective would mean the end of the present State of Israel-a member of the United Nationsand its submergence in some larger entity. Some would be willing to accept merely as a first step toward this goal the establishment of a Palestinian state comprising the West Bank of the Jordan River and Gaza.
-Other elements of Palestinian opinion appear willing to accept an independent Palestinian state comprising the West Bank and Gaza, based on acceptance of Israel's right to exist as an independent state within roughly its pre-1967 borders.
-Some Palestinians and other Arabs envisage as a possible solution a unification of the West Bank and Gaza with Jordan. A