Imagini ale paginilor

In the suit, plaintiffs sought to have declared illegal and to enjoin the contacts which representatives of the Commerce Department would have to make with officials in South Africa in deciding upon the waiver, as well as visits to places from which the sealskins would originate, including Namibia. Such contacts, they argued, were inconsistent with the General Assembly resolution of October 27, 1966, for which the United States had voted, officially terminating the South African mandate; with the affirmative vote of the United States in Security Council Resolution 276 (1970), calling upon states to refrain from dealings with the Government of South Africa inconsistent with the declaration of illegality of the continued presence of South Africa in Namibia; with the 1971 Advisory Opinion of the International Court of Justice and the United States acceptance of that opinion; and with the affirmative vote of the United States on Security Council Resolution 301 (1971), calling on states to abstain from sending diplomatic or special missions to South Africa that include Namibia in their jurisdiction and to abstain from dealings with South Africa on behalf of or concerning Namibia which might entrench its authority over the territory. By operation of Article 25 of the United Nations Charter (TS 993; 59 Stat. 1031; entered into force for the United States October 24, 1945), it was stated, the United States must carry out those Security Council decisions.

Judge Flannery's opinion, after ruling that the plaintiffs had standing to bring the action, went on to state:

In spite of the above conclusion on the issue of standing the Court is without jurisdiction to hear plaintiffs' claim. Plaintiffs contend that the United Nations resolutions are positive domestic law and as such are judicially enforceable. As support for this argument they point to Articles III and IV of the Constitution which provide that the judicial power extends to cases arising under treaties and that all treaties shall be the supreme law of the land. The Court is, however, of the opinion that the limited nature of the United Nations resolutions deprives this Court of jurisdiction over the action.

Plaintiffs must assert a claim arising "under the Constitution, laws, or treaties of the United States." See 28 U.S.C. $ 1331 (1970). The Charter of the United Nations is a treaty within the meaning of Article VI, clause 2 of the Constitution of the United States, and thus is the “law of the land." Sei Fujii v. California, 38 Cal. 718, 242 F.2d 617, 619–20 (1952). As such it imposes definite international obligations on the United States. Nevertheless, treaties do not generally confer upon citizens rights which they may enforce in the courts. It is only when a treaty is “self-executing that individuals derive enforceable rights from the treaty, without further legislative or executive action. See Restatement (Second) of Foreign Relations Law $ 141 (1965); 14 M. Whiteman, Digest of International Law § 29 (1970). The provisions of the Charter of the United Nations are not selfexecuting and do not vest any of the plaintiffs with any individual legal rights which they may assert in this court. People of Saipan v. United States Department of Interior, 502 F.2d 90, 100 (9th Cir. 1974), cert. denied, 43 U.S.L.W. 3527 (U.S. April 1, 1975) (concurring opinion); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C. 1958), affd, 278 F.2d 252 (D.C. Cir.), cert. denied, 364 U.S. 835 (1960); Sei Fujii v. California, supra, 242 F.2d at 620–21.

Even if the Court had subject matter jurisdiction, it would be forced to conclude that the issues before it are ones which are within the foreign policy authority of the President and are nonjusticiable. It is not for the Court to say whether a treaty has been broken or what remedy shall be given. Whitney v. Robertson, 124 U.S. 190, 194–95 (1888); 2 & F Assets Realizations Corp. v. Hull, 114 F.2d 464, 471 (D.C. Cir. 1940), affd, 311 U.S. 470 (1941). Nor should the Court direct the manner in which the Executive is to carry out his foreign relation responsibilities.

In light of the foregoing, the Court will grant the motions of defendant Dent and intervenor Fouke Company, Inc. to dismiss. ...

Art. 25 of the United Nations Charter provides:

The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

On November 3, 1975, George H. Aldrich, Deputy Legal Adviser of the Department of State, in a letter to Bruno A. Ristau, Chief, Foreign Litigation Unit, Civil Division, Department of Justice, commented on the international legal issues presented by the brief of plaintiffs/appellants on September 17, 1975, in the appeal of Diggs v. Morton and Fouke before the United States Court of Appeals for the District of Columbia Circuit. He referred in particular to the plaintiffs' assertions concerning the binding effect of decisions of the Security Council. An excerpt from Mr. Aldrich's letter follows:

Plaintiffs appear to assert that the three relevant Security Council decisions are, by reason of Article 25 of the U.N. Charter, binding on U.N. members and therefore constitute, per se, binding legal obligations of the United States. This view of the effect of Article 25 was also expressed by the ICJ in its Advisory Opinion.

The United States has never accepted the proposition that all Security Council decisions are legally binding on U.N. members by reason of Article 25. For example, the Chairman of the United States Delegation to the 1945 San Francisco Conference which drafted the U.N. Charter stated in his Report on the Conference that:

It is to be noted that the members of the Organization agree to carry out the decisions of the Security Council “in accordance with the present Charter." Thus the precise extent of the obligation of members under Article 25 can be determined only by reference to other provisions of the Charter, particularly Chapters VI, VII, VIII and XII (Article 24, paragraph 2). Decisions of the Security Council take on a binding quality only as they relate to the prevention or suppression of breaches of the peace. With respect to the pacific settlement of disputes, the Council has only the power of recommendation.

[ocr errors][ocr errors]

Since the Namibia resolutions of the Security Council neither invoked the Council's mandatory authority under Chapter VII of the Charter nor indicated an intention to be legally binding, the United States would not regard those resolutions as having automatic binding force. This is one reason why, in our explanation of vote on Resolution 301, we stated that we accepted the conclusions of the Advisory Opinion but not necessarily all of the reasoning. See paragraphs 17-20 of the Official Record (enclosed).

However, the United States has accepted the conclusion of the ICJ Advisory Opinion that U.N. members are obliged by virtue of the Charter and the termination of the mandate to refrain from any acts or dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, its presence and control over Namibia. We have accepted this conclusion because we agree that it is a correct and authoritative statement of the existing obligations of U.N. members under international law as a result of the termination by the General Assembly of the South West Africa mandate and the assumption by the U.N. of responsibility and authority over Namibia. We did not consider that binding resolutions were necessary to produce these obligations, for we believed that they flowed directly from the Charter, particularly Article 2, paragraph 5 which requires all members to assist the United Nations in any action it takes in accordance with the Charter. The United States supported Security Council Resolutions 276 and 301, which "call upon” states to take various measures designed to constrain South Africa in its continued occupation of Namibia, because we believed that these measures would promote a solution of the Namibian question based on the right of the Namibian people to self-determination. The United States has stated in various U.N. bodies that it intends to comply with these recommendations.

[ocr errors]
[ocr errors]

The Security Council Official Records, 1958th meeting, Oct. 20, 1971, enclosed with Mr. Aldrich's letter, contain a statement regarding the U.S. intended vote for Security Council Res. 301. Pars. 17-20 of the Record read as follows:

17. The draft resolution takes note of the advisory opinion of the International Court of Justice, particularly its conclusions. For its part, the United States accepts those conclusions, which declare-in paragraph 133—that South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory, and which further declare that member states are

“... under obligation to recognize the illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration."

18. In his speech two weeks ago in the General Assembly (1950th plenary meeting) Secretary of State Rogers stated our acceptance of those conclusions and observed that that position was consistent with our support of practical and peaceful means to achieve self-determination and end racial discrimination.

19. Our acceptance also reflects the importance that my Government attaches to the Court. We consider that this advisory opinion adds a significant and authoritative legal element to the effort of the international community to make it possible for the people of the Territory to enjoy their right to self-determination. Our acceptance, of course, does not necessarily imply approval of all the Court's reasoning. We note in this connection concern about the Charter interpretation which has been expressed by several members of this Council.

20. The draft resolution reaffirms Resolution 283 (1970), which urges member states to take a number of actions vis-à-vis Namibia. Let me recall, in this connection, that even before the adoption of that resolution the United States had announced that it would officially discourage investment by United States nationals in Namibia, would not make available United States Export-Import Bank credit guarantees and other facilities and would not assist United States citizens who invest in Namibia on the basis of rights acquired after the adoption of General Assembly Resolution 2145 (XXI) in protection of such investments against claims of a future lawful government of Namibia. Following that announcement, my Government made sure that investors were informed of that new policy; and investment has in fact been inhibited in Namibia.

[ocr errors][merged small][merged small]

On August 20, 1975, the United Nations Special Committee of 24 on Decolonization voted to postpone until the Committee's 1976 session consideration of a resolution on the question of Puerto Rico. The vote was on a motion by Australia to adjourn debate on the subject; it was adopted by 11 votes in favor, to 9 against, with 2 abstentions. By adopting the motion, the Committee put off action on a draft resolution by the Congo, Cuba, Iraq, Mali, and Syria (document A/AC.109/L.1055) which, inter alia, would have had the Committee recognize “the national liberation movement of Puerto Rico as representing the legitimate aspirations of the Puerto Rican people struggling for independence,” and state that it considered it advisable to send a visiting mission to Puerto Rico in 1976. Following the vote, Ambassador Daniel P. Moynihan, United States Representative to the United Nations, made the following statement:

The United States is gratified by the action of the Committee which, given the unassailable fact of the free condition of the people of Puerto Rico, was a responsible action.

The Committee acted in the aftermath of insistent, but we hope fairminded, representations by the United States Government, which reassures us that rational advocacy is indeed possible in United Nations organs.

See U.N. Doc. A/AC.109/PV.1019, Aug. 21, 1975, pp. 31–55; U.N. Press Release GA/COL/1660, Aug. 20, 1975; Press Release USUN-85(75), Aug. 20, 1975.

On October 8, 1975, Carmen Maymi, United States Alternate Representative to the United Nations, made a statement in plenary in right of reply to a statement concerning Puerto Rico by the Cuban Representative. Ms. Maymi's statement follows:

Earlier this afternoon, the Cuban Representative saw fit once again to attempt to intervene in the internal affairs of the United States and the Commonwealth of Puerto Rico. My Government regrets that the Cuban delegation makes it necessary for us to state once more the facts of the case and our very strong and well-known views on the subject.

The people of Puerto Rico attained self-government by fully and freely participating in a referendum in 1952 in which they voted to establish a Commonwealth freely associated with the United States and in which they adopted a Constitution for that Commonwealth. They have repeatedly reaffirmed that decision in free elections, conducted on the basis of universal adult suffrage in 1956, 1960, 1964, 1968 and 1972 and in a status referendum in 1967.

The Eighth Session of the General Assembly of the United Nations in 1953 specifically recognized Puerto Rico's attainment of self-government by adopting Resolution 748 which states in operative paragraph 5 that “the people of Puerto Rico have been invested with attributes of political sovereignty which clearly identify the status of self-government attained by the Puerto Rican people as that of an autonomous political entity.” Operative paragraph 6 of the same resolution states that "the Declaration regarding Non-Self-Governing Territories and the provisions established under it in Chapter XI of the Charter can no longer be applied to the Commonwealth of Puerto Rico."

The Twenty-Sixth Session of the General Assembly in 1971 endorsed these decisions on the self-governing status of Puerto Rico by rejecting a proposal to include an item

on Puerto Rico in its agenda.

In 1972, as in previous elections, the overwhelming majority of the Puerto Rican people supported the Commonwealth and Statehood Parties. Only slightly more than 4 percent of the electorate voted for the Independence Party.

Misrepresentations in this forum will not change these facts, nor will such attacks weaken the adherence of the United States

« ÎnapoiContinuați »