REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS

Procedural History:

The United Nations (UN) requested an advisory opinion from the International Court of Justice (ICJ) on two primary questions. First, it asked whether, when an agent of the UN is injured while performing duties relating to an individual State, the UN may bring an international claim against the State’s government for damages caused to either the UN or to the victim. In the event of an affirmative answer to the first question, the UN also requested an answer on the following question: when both the UN and an individual State have an interest in the same international claim, does the UN’s interest in bringing the claim outweigh the State’s interest in either providing diplomatic protection for its offending national, or bringing the claim itself, depending on the factual circumstances present?

Advisory Opinion of 11 April 1949

The question concerning reparation for injuries suffered in the service of the United Nations, was reft:rred to the Court by the General Assembly of the United Nations (Resolution of the General Assembly dated December 3rd. 1948) in the following terms:

"I. In the event of an agent of the IJnited Nations in the performance of his duties suffering .injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him?

"11. In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?"

With respect to questions I (a) and I (b), the Court established a distinction according to whether the

responsible State is a Member or not of the United Nations. The Court unanimously answered answered question I[ (a) in the affirmative. On question I (b) the Court was of opinion by 11 votes against 4 that the Organization has the capacity to bring an international claim whether or not the responsible State is a Member of the United Nations.

Finally, on point 11, the Court was of opinion by 10 votes against 5 that when the United Nations as an organization is bringing a claim for reparation for darnage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule 'will usually prevent a conflict between the action of the United Nations and such rights as the agent's national State may possess; moreover, this reconciliation must depend up considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States.

The dissenting Judges appended to the Opinion either a declaration or a statement of the reasons for iwhich they cannot concur in the Opinion of the Court. l b o other Members of the Court, while concumng in the Opinion, appended an additional statement.

In its Advisory Opinion, the Court begins by reciting the circumstances of the procedure. The Request for Opinion was communicated to all States entitled to appear before the Court; they were further informed that the Court was prepared to receive information from them. Thur;, written statements were sent by the following States: India, China, United States of America, United Kingdom d Great Britain and Northern Ireland and France. In addition, oral statements were presented before the Court by a representative of the Secretary-General of the United Nations, assmisted by counsel, and by the representatives of the Belgian, French and United Kingdom Governments.

Then the Court makes a number of preliminary observations on the question submitted to it. It proceeds to define certain terms in the F!equest for Opinion, then it analyses the contents of the

formula: "capacity to bring an international claim." This capacity certainly belongs to a State. Does it also belong to the Organization? This is tantamount to asking whether the Organ~ization has international personality. In answering this question which is not settled by the actual terms of the Charter, the Court goes on to consider what characteristics the Charter was intended to give to the Organization. In this connection, the Court states that the Charter conferred upon the Organization rights and obligations which are different from those of its Members. The Court stresses, further, the important political tasks of the Organization: the maintenance of international peace and security.

Accordingly the Court concludes that the Organization possessing as it does rights and obligations, has at the same time a large measure of international personality and the capacity to oprate upon an international plane, although it is certainly not a super-state.

The Court then examines the very heart of the subject, namely, whether the sum of the international rights of the Organization comprises the right to bring an international claim to obtain repamtion from a State in respect of the damage caused by the injiury of an agent of the Organization in the course of the perfonnance of his duties.

On the first point:, I (a), of the Request for Opinion the Court unanimously ]meaches the conclusion that the Organization has the capacity to bring an international claim against a State (whether a Member or non-member) for damage resulting from a breach by that State of its obligations towards the Organization. The Court points out that it is not called upon

to determine the precise extent of the reparation which the Organization would be entitled to recover; the measure of the reparation should delpend upon a number of factors which the Court gives as examlples.

Then the Court proceeds to examine question I (b), namely, whether the United Nations, as an

Organization, has the capacity to bring an international claim with a view to obtaining the reparatiion due in respect of the damage caused, not to the Organization itself, but to the victim or to persons entitled through him.

In dealing with this point the Court analyses the question of diplomatic protection of nationals. The Court points out in this connection that really only the Organization has the capacity to present a claim in the circumstances referred to, inasmuch as at the basis of any international claim there must be a breach by the defendant State of an obligation towards the Organization. In the present case the State of which the victim is a national ccruld not complain of a breach of an obli- gation towards itself. Here the obligation is assumed in favour of the Organization. However, the Court admits that the analogy of the traditional rule of diplomatic protection of nationals abroad does not in itself justify an affirmative reply.

In fact, there exists no1 link of nationality between the Organization and its agents. This is a new situation and it must be analysed. Do the provisions of the Charter relating to the functions of the Organization imply that the latter is empowered to assure its agents limited protection? These powers, which are essential to the performanceof the functions of the Organization, must be regarded as a necessary implication Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice Not an official documentarising from the Charter.

In discharging its functions, the Organization may find it necessary to entrust its agents with important missions to be performed in distu~rbed parts of the world. These agents must be ensured of effective protection.

It is only in this way that the agent will be able to carry out his duties satisfactorily. The Court therefore reaches the conclusion that the Organization has the ciipacity to exercise functional protection in respect of its agents. The situation is comparatively simplc: in the case of

Member States, for these have assumed viuious obligations towards the Organization.

But what is the situation when a claim is brought against a State which is not a Member of the Organization? The Court is of opinion that the Members of the United Nations created an entity possessing objective internationa:l personality and not merely personality recognized by them alone. As in the case of Question I (a), the C411urt therefore answers Question I (6) in the affirmative.

Question No. I1 of the General Assembly refers to the rec- oncilirltion of action by the United Nations with such rights as mqy be possessed by the State of which the victim is a national. In other words, what is involved is possible competition between the rights of diplomatic protection on the one hand md functional protection on the other. The Court does not sate here which of these two categories of protection should have priority and in the case of Member States it stresses their duty to render every assistance provided by Article 2 of the Charter. It adds that the risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case, and it refers further to cases that have already arisen in which a practical solution has already been found.

Finally, the Court examines the case in which the agent bears the nationality of the defendant State. Since the claim brought by the Organization is not based upon the nationality of the victim but rather upon his status a!; an agent of the Organization, it does not matter whether or not the State to which the claim is addressed regards him as its own national. The legal situation is not modified thereby.

CONDITIONS TO ADMISSION TO TO MEMBERSHIP IN THE UN (ARTICLE 4, UN CHARTER)

Requested by: UN General Assembly (GA)

Legal Question: “Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the

Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?"

Jurisdction to Provide for an Opinion: Jurisdiction exists.

Key points: “It has nevertheless been contended that the question put must be regarded as a political one and that, for this reason, it falls outside thejurisdiction of the Court. The Court cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision. It is not concerned with the motives which may have inspired this request, nor with the considerations which, in the concrete cases submitted for examination to the Security Council, formed the subject of the exchange of views which took place in that body. It is the duty of the Court to envisage the question submitted to it only in the abstract form which has been given to it; nothing which is said in the present opinion refers, either directly or indirectly, to concrete cases or to particular circumstances.”

Discretionary Power to Decline Request: Not exercised.

“It has also been contended that the Court should not deal with a question couched in abstract terms. That is a mere affirmation devoid of any justification. According to Article 96 of the Charter and Article 65 of the Statute, the Court may give an advisory opinion on any legal question, abstract or otherwise.” (p. 61; see also Legality of the threat or use of nuclear weapons)

Opinion and Additional Notes: The Court answered both limbs of this question in the negative by nine votes to six.

DECLARATION ON THE GRANTING OF INDEPENDENCE TO COLONIAL COUNTRIES AND PEOPLES

Procedural History:

On 14 December 1960, a "Declaration on the Granting of Independence to Colonial Countries and Peoples" was adopted by the General Assembly. By this, among other things, the Assembly solemnly proclaimed "the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations." The Declaration was adopted by 89 votes to O, with 9 abstentions, and was sponsored by 43 African and Asian countries. (See p. 49 for text.)

The matter was initially proposed for inclusion in the agenda of the Assembly's fifteenth session by the Chairman of the Council of Ministers of the USSR, Nikita S. Khrushchev, during his address to the General Assembly on 23 September 1960.

In an explanatory memorandum accompanying his request, he declared that the time was at hand for "the complete and final liberation of peoples languishing in colonial bondage." The United Nations, he said, could not remain indifferent to the fact that more than 100 million human beings were still living in conditions of colonial oppression and exploitation; in keeping with the principles of its Charter, the United Nations must declare itself in favour of the "immediate and complete elimination of the colonial system in all its forms and manifestations."

In the draft declaration on the granting of independence to colonial countries and peoples, which the USSR submitted for Assembly consideration, United Nations Members were called upon solemnly to proclaim three demands.

First, all colonial countries and Trust and Non-Self-Governing Territories must be granted forthwith

complete independence and freedom to build their own national states in accordance with the freely expressed will and desire of their peoples. The colonial system—and colonial administration in all its forms—must be completely abolished in order to afford the peoples of the territories concerned an opportunity to determine their own destiny and form of government.

Second, all strongholds of colonialism in the form of possessions and leased areas in the territory of other countries must be eliminated.

Finally, the Governments of all countries were urged to observe strictly and steadfastly the provisions of the Charter and the present Declaration concerning equality and respect for the sovereign rights and territorial integrity of all states without exception, allowing no manifestations of colonialism or any special rights or advantages for some states to the detriment of other states.

On 28 September, the Assembly's General Committee recommended that the USSR item be put on the Assembly's agenda and, by a vote of 8 to 2, with 9 abstentions, recommended that the item be allocated to the First (Political and Security) Committee. After deciding, on 10 October, to place the item on its agenda, the General Assembly on 13 October unanimously adopted a USSR proposal to discuss the item in plenary meetings—which it did between 28 November and 14 December. Over 70 delegations took part in the debate.

The USSR representative, opening discussion of the item on 28 November, said that, although the process of liberation of peoples under colonial rule had already achieved striking results in Asia and Africa, colonialism was not yet dead. As recent events in the Congo had shown, some countries had not been completely freed from colonial domination in spite of their nominal independence. Then, too, there were still many countries in Asia, Africa, Latin America and Oceania "languishing under the yoke of foreign domination."

He recalled that Mr. Khrushchev had warned the General Assembly on 12 October 1960 that, unless the most urgent measures were taken, colonialism was capable of causing still more suffering and much loss, destroying many millions of lives, giving rise to military conflicts, and endangering peace and security not only in certain areas but the world over. The USSRdeclaration, he stressed, was a "key programme" in the struggle for the liberation of all the colonial peoples.

In a later statement, the USSR representative contended that the colonial powers had always objected to the discussion of questions relating to the political development of the Non-Self-Governing Territories. In the case of the "great colonies," where there was a developed national liberation movement, the colonialists were trying in every way to postpone the granting of political independence and to guarantee for the future the position of European minorities in those countries. In the case of the smaller territories, he said, they were maintaining them as bases for colonialism by merging them with the metropolitan countries, a line which was adopted by all colonialists. They were trying to use such territories as strategic bases and points of support for suppressing liberation movements and for exerting pressure on neighbouring countries.

Discussion of the colonial question was a serious test for the United Nations, the USSR representative went on. Colonialism would be destroyed in any event, with or without the assistance of the United Nations, but the Organization could either accelerate the process, or stand indifferently aside—or perhaps even be an obstacle to the liquidation of colonialism. However, such a strong world opinion had been created in favour of the immediate and complete liquidation of colonialism that it could not be ignored by the colonial powers.

The declaration proposed by the USSR for the immediate and complete liberation of the colonial peoples from foreign domination would, he said, provide a solution of great historical and immediate practical significance.

The United Kingdom representative said he had hoped that the debate could have been a serious discussion of the ways in which all could help to realize the aspirations of those peoples who did not yet enjoy what the United Nations Charter described as a "full measure of selfgovernment"— an aspect of world affairs with which the United Kingdom had long been vitally concerned. But he had been shocked, he said, at the way in which the USSR delegation had sought to pervert for its own purposes the deep and genuine desire for independence of so many millions of people.

The aim of the USSR draft declaration, he went on, seemed to be to generate hatred rather than friendship, violence rather than peace, and chaos rather than order.

Since 1939, he pointed out, some 500 million people formerly under British rule had achieved freedom and independence and their representatives sat in the General Assembly. In that same period, he said, the whole or part of six countries, with a population of 22 million, had been forcibly incorporated into the Soviet Union, including the world's "three newest colonies"— Lithuania, Estonia and Latvia. In addition, the Soviet Union exercised economic, political and military domination over millions of others inneighbouring countries.

It would be of no service to the peoples of the rest of the world to allow the affairs of Africa and Asia to become lost beneath a barrage of charges and counter-charges, the United Kingdom representative declared. All he asked was that the United Nations machinery for dealing with Trust and Non-Self-Governing Territories, and the structure of co-operation built up over the years, should not be destroyed by "unconstructive and irresponsible assaults." Those who, like the United Kingdom, subscribed without reservation to Chapter IX of the Charter—dealing with Non-Self-Governing Territories— and had since honoured it in practice, had already accepted colonialism as an "out-ofdate political relationship" in the sense that it involved the permanent subjection of one people to another.

The United Kingdom representative said he found it hard to improve on the terms of Article 73 of the Charter, by which administering powers undertook, among other things, to develop self-government in the territories under their control. However, the problems of the development of political independence varied according to the circumstances of the different territories. For example, there were no fewer than 29 Non-Self-Governing Territories under United Kingdom administration with a population of under one million each; 14 of these had a population of less than 100,000. The people of those small territories, he stressed, had to think carefully about their future. The United Kingdom considered that it had a solemn obligation to work out with the people concerned the form of independence which would best satisfy their aspirations.

On the same day, 28 November, Cambodia, on behalf of 26 Asian and African countries, introduced a draft resolution which was eventually sponsored by 43 Asian and African states. The Cambodian representative said that the sponsors of the draft had tried to find formulae and solutions which could be acceptable to the greatest possible number of delegations, if not to all Members of the Assembly. They therefore appealed to all delegations to study the text carefully and open-mindedly, so that a period of humanity's history which should have been left behind—that is, the exploitation of peoples by other peoples and the domination of countries by other countries—could be forgotten.

By the operative part of the Asian-African draft resolution, the General Assembly—after solemnly proclaiming the "necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations"—would declare that: in the internal affairs of all states, and respect for the sovereign rights of all peoples and their territorial integrity."

"1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter

of the United Nations and is an impediment to the promotion of world peace and co-operation.

"2. All peoples have the right of self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

"3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

"4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.

"5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those Territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

"6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

"7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and this Declaration on the basis of equality,non-interference

The 43 sponsors of the draft were as follows: Afghanistan, Burma, Cambodia, Cameroun, Central African Republic, Ceylon, Chad, Congo (Brazzaville), Congo (Leopoldville), Cyprus, Dahomey, Ethiopia, Federation of Malaya, Gabon, Ghana, Guinea, India, Indonesia, Iran, Iraq, Ivory Coast, Jordan, Laos, Lebanon, Liberia, Libya, Madagascar, Mali, Morocco, Nepal, Niger, Nigeria, Pakistan, Philippines, Somalia,

Saudi Arabia, Senegal, Sudan, Togo, Tunisia, Turkey, United Arab Republic and Upper Volta.

Representatives of several of the sponsoring countries of the 43-power draft welcomed the initiative taken by the USSR in bringing the question of colonialism before the General Assembly; the Asian-African states, they said, had long been concerned with that problem.

Some of them, including Libya, Tunisia and the United Arab Republic, noted the similarity between the two declarations and explained their reasons for introducing their own draft. The representative of Tunisia, for example, said that, while decolonization was a problem which concerned the whole world, the former colonized countries had the sacred duty as non-aligned countries to be "in the van of this combat." He stressed that the sponsors did not want the colonialism question to become an ideological struggle "within the framework of the one in which East and West vie against each other." The representative of the United Arab Republic felt that there was no essential difference between the two draft declarations, both of which, he said, had as their objective the "immediate eradication of colonialism."

Many representatives of Asian-African Members referred to the Bandung Conference in 1955, where countries of Asia and Africa had initiated a number of fundamental principles which had become the cornerstone of their policy towards the colonial countries and peoples and which had been re-emphasized at the conferences of African states at Accra in 1958, at Monrovia in 1959 and at Addis Ababa in 1960. The draft declaration they were now submitting was the culmination of those principles, they stressed.

There was no doubt, said many of these speakers, that during the past 15 years the United Nations had devoted much effort towards carrying out its Charter obligations relating to Trust and Non-Self-Governing Territories. However, it was a fact that progress had sometimes been slow and consequently there were still large areas under colonial rule. In the Interests

of world peace and security, they held, the colonial powers should initiate immediate measures for the transfer of complete independence to all colonial countries and peoples.

They further stated that economic freedom was as essential as political freedom. Racial discrimination was condemned by them as a manifestation of colonialism—especially as practised by the Union of South Africa. Also condemned was interference by colonial powers in the internal affairs of their former dependent territories which, they considered, made a mockery of the independence granted. In this connexion, many speakers called attention to the situation in the Republic of the Congo (Leopoldville). The Asian-African declaration, they added, was in fact designed to obtain concerted action—through the United Nations—for the independence of dependent peoples and territories, without any conditions or reservations and without any undermining of their right freely to develop their own political, economic, social and cultural institutions.

Australia and New Zealand agreed with the United Kingdom's contention that colonialism was a necessary transitional phase and that Non-Self-Governing and Trust Territories had made remarkable progress towards independence, in accordance with the provisions of the United Nations Charter. Each case was governed by its own circumstances, and the test was always that of determining what would best suit the interests of the peoples whose destiny was at stake. In some cases, progress had been slow because of the special circumstances of a particular territory. In this connexion, Australia mentioned eastern New Guinea where, because of tremendous physical difficulties, the tasks to be undertaken were unique. In spite of that, remarkable progress had been made; it could be said that without the efforts of the administering authority the people of New Guinea would have had no immediate hopes of advancement or selfgovernment.

The representatives of Albania, Bulgaria, the Byelorussian SSR, Czechoslovakia, Hungary, Poland,

Romania and the Ukrainian SSR maintained that the immediate and complete liquidation of colonialism in all its forms would be an outstanding victory for the forces of peace, progress and freedom. The struggle of the peoples for liberation was a great historic process which could not be checked. The United Nations, they declared, was duty bound to put an end to the colonial system and the best contribution it could make would be to adopt the draft declaration submitted by the USSR.

Representatives of some Latin American Members said that the juridical traditions of their countries made them natural allies of the cause of independence for colonial peoples. However, they favoured independence and freedom everywhere, in all attitudes and under all systems, and they felt the debate should therefore be widened to include all issues relating to freedom—such as freedom of speech and freedom to worship.

The representatives of Guatemala, Honduras and Panama were among those who pointed out that colonialism still existed in the Western Hemisphere; remaining colonies in America represented an area of about 2,700,000 square kilometres, with a population of more than 3,000,000 people. The representative of Cuba maintained that the Assembly should recommend that self-determination and sovereignty be granted to the people of Puerto Rico.

Honduras, on 1 December, submitted a draft proposal—which it later revised twice—by which the General Assembly, among other things, would proclaim the elimination of colonialism throughout the world, in the Western hemisphere as elsewhere. It would also appoint a five-member commission to examine the situation in the Trust and Non-Self-Governing Territories, with a view to proposing to the General Assembly at its sixteenth session whatever concrete measures should be recommended or applied in each case in order to achieve the complete abolition of colonialism throughout the world.

The United States representative observed that, as a result of the application of Article 73 of the Charter, 34 countries—containing over 775 million people—had attained independence since 1946. The ending of the colonial era was already far advanced, and its complete end was certain. It was clear that the responsibility under Chapter XI of the Charter for the administration of Non-Self-Governing Territories could only be temporary. But it was not enough, he said, merely to liquidate the old: it was also necessary to "plan soundly for what will replace it."

In that regard, he went on, the wishes of the indigenous people had to be paramount. Experience had shown that a separate independence was usually, but by no means always, the people's choice. Contrary, he said, to the impression left by some speakers in the debate, the people of Puerto Rico did not now desire independence; they had freely chosen to be associated with the United States as a self-governing commonwealth. The vital test for an administering authority was that of free consultation with the people through free elections or some other equally valid means of self-determination.

The United States representative also spoke of "a new colonial system" that had been imposed by force on many peoples of many races, many of whom had been free for centuries. The entire system was disguised by censorship, by ruthless thought control, and by an elaborate misuse of words like "democratic" and "autonomous." However, its tragic reality had been attested to by the millions who had escaped it and by the tens of thousands who had died trying to shake it off. The United States representative referred to the USSR at the "arch-practitioner" of this "new and lethal colonialism." He said that the 43-nation draft declaration quite rightly spoke out against colonialism "in all its manifestations."

During the course of the debate, the representatives of Argentina, Belgium, France, Israel, Portugal, Spain and the Union of South Africa spoke in reply to charges made against their Governments by the representative of the USSR and other speakers.

On 13 December, the USSR representative introduced two amendments to the 43-power draft declaration, explaining that, although it had something in common with the Soviet declaration, it was incomplete in certain respects. By the first USSR amendment—which would add a new paragraph to the 43-power draft—the Assembly would call upon the powers concerned to ensure the transfer of full and sovereign power to the peoples of all dependent territories, in accordance with the principles stated in the declaration, and for that purpose to enter into negotiations with the representatives of the colonial peoples so that all colonial countries and peoples should attain independence not later than the end of 1961 and take their rightful place among the community of nations.

By the second USSR amendment, the Assembly would decide to consider the question of the implementation of the declaration at its sixteenth session (to open in September 1961).

Guatemala also proposed an addition to the 43-power draft to provide that "the principle of the self-determination of peoples may in no case impair the right of territorial integrity of any state or its right to the recovery of territory." This amendment was withdrawn on 14 December at the request of the Indonesian representative, who felt that it was already covered by operative paragraph (6) of the 43-power draft, dealing with attempts to disrupt the national unity and territorial integrity of countries.

On 14 December, the Assembly voted first on the USSR draft declaration, in two parts. The part by which Member states would proclaim certain "demands" was rejected by a roll-call vote of 32 in favour to 35 against, with 30 abstentions. The rest of the draft was rejected, also by roll-call, by 25 in favour to 35 against, with 22 abstentions.

The first USSR amendment to the 43-power draft was then rejected by a roll-call vote of 29 in favour to 47 against, with 22 abstentions. The second USSR amendment was also not adopted as it failed to obtain the necessary twothirds vote: the roll-call

vote was 41 in favour to 35 against, with 22 abstentions.

The draft resolution sponsored by 43 Asian and African countries was then adopted, on 14 December 1960, as resolution 1514(XV), by a roll-call vote of 89 to O, with 9 abstentions. Honduras did not press its draft resolution to the vote.

General Assembly resolution 1514 (XV) of 14 December 1960

The General Assembly ,

Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to promote social progress and better standards of life in larger freedom,

Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on respect for the principles of equal rights and self-determination of all peoples, and of universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion,

Recognizing the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the attainment of their independence,

Aware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace,

Considering the important role of the United Nations in assisting the movement for independence in Trust and Non-Self-Governing Territories,

Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,

Convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the

social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace,

Affirming that peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law,

Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious crises, an end must be put to colonialism and all practices of segregation and discrimination associated therewith,

Welcoming the emergence in recent years of a large number of dependent territories into freedom and independence, and recognizing the increasingly powerful trends towards freedom in such territories which have not yet attained independence,

Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory,

Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations;

And to this end

Declares that:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.

5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.

UN RESOLUTION ON PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES

Procedural History:

The issue of permanent sovereignty over natural resources had been initially raised in two different contexts in the United Nations: firstly, as part of the debates in the General Assembly on the promotion and financing of economic development in under-developed countries (resulting in the adoption of General Assembly resolutions 523 (VI) and 626 (VIII) of 12 January and 21 December 1952,

respectively); and, secondly, in connection with its work on the preparation of the draft international covenants on human rights, notably under General Assemblyresolution 421 D (V) of 4 December 1950. However, the discussion on permanent sovereignty over natural resources as an aspect of human rights quickly gained prominence. By resolution 545 (VI) of 5 February 1952, the General Assembly had decided to include in the draft international covenants on human rights an article on the “right of peoples to self-determination” and requested the Commission on Human Rights to prepare recommendations concerning international respect for this right.

The issue of permanent sovereignty over natural resources was examined at the eighth session of the Commission on Human Rights, from 14 April to 14 June 1952 (Report of the Commission, E/2256). On 16 April 1952, in the course of the debate in the Commission, Chile introduced a draft resolution (E/CN.4/L.24) which proposed that “the right of peoples to self-determination shall also include permanent sovereignty over their natural wealth and resources.” On 8 May 1952, the Commission adopted resolution I based on the Chilean proposal.

At the tenth session of the Commission on Human Rights, from 23 February to 16 April 1954, during which the Commission completed the drafting of the international covenants on human rights, it also considered a request by the General Assembly to prepare recommendations relating to the steps which might be taken to develop international respect for the right of peoples to self-determination (General Assembly resolutions 637 C (VII) and 738 (VIII) of 16 December 1952 and 28 November 1953 respectively). Following the adoption of a joint draft resolution, submitted by six delegations (E/CN.4/L.381), the Commission recommended to the Economic and Social Council that the General Assembly should “establish a Commission to conduct a full survey of the right of peoples and nations to permanent sovereignty over their natural wealth and resources” which formed a “basic constituent of the right to self-determination” (Report of the

Commission on the work of its tenth session, E/2573).

The Economic and Social Council considered the draft resolution at its eighteenth session, from 29 June to 6 August 1954. On 29 July 1954, upon the recommendation of its Social Committee (Report of the Social Committee, E/2638), the Council decided to return the draft resolution to the Commission together with the records of the meetings of the Council and of the Social Committee on this question, in order for the Commission to reconsider its proposal in the light of the Council’s discussions (resolution 545 G (XVIII)).

On 26 November 1954, during the ninth session of the General Assembly, the Third Committee took note of the discussion in the Economic and Social Council and debated extensively the proposal made by the Commission on Human Rights. During the course of the debate, sixteen countries from Latin America, Africa and Asia jointly submitted a draft resolution (A/C.3/L.440) which requested the Commission to complete its recommendations concerning respect for the right of peoples to self-determination, including recommendations concerning permanent sovereignty over their natural resources. On 4 December 1954, in its report to the General Assembly (A/2829), the Third Committee approved this proposal and recommended that the Assembly adopt a resolution to this effect. On 14 December 1954, the General Assembly adopted resolution 837 (IX) which accordingly requested the Commission on Human Rights to complete its recommendations concerning respect for the right of peoples to self-determination, including recommendations concerning permanent sovereignty over natural resources.

During its eleventh session, from 5 to 29 April 1955, under the agenda item entitled “Recommendations concerning international respect for the right of peoples and nations to self-determination”, the Commission on Human Rights adopted a draft resolution, for transmittance to the Economic and Social Council, which repeated its proposal to establish a commission on permanent sovereignty to

conduct a full survey of the right of peoples and nations to permanent sovereignty over natural resources (E/2731). On 29 July 1955, during its twentieth session, the Economic and Social Council decided to transmit the draft resolution to the General Assembly for its consideration (seeresolution 586 D (XX)).

The draft resolution was considered by the General Assembly at its thirteenth session in 1958. On 3 December 1958, in its report to the General Assembly (A/4019), the Third Committee recommended that the Assembly adopt a resolution based on the proposal of the Commission on Human Rights to establish a commission on permanent sovereignty over natural resources. On 12 December 1958, the General Assembly adopted resolution 1314 (XIII), which established the United Nations Commission on Permanent Sovereignty over Natural Resources.

Under the terms of resolution 1314 (XIII), the newly-established Commission was charged with two tasks. Apart from being instructed to conduct a full survey of the status of the right of peoples and nations to permanent sovereignty over their natural wealth and resources, as a basic constituent of the right to self-determination, it was also requested to provide recommendations, where necessary, for its strengthening, and report to the Economic and Social Council on the outcome of its work. In the same resolution, the General Assembly further indicated that, inter alia, in the Commission’s conduct of the full survey, due regard should be paid to the rights and duties of States under international law and to the importance of encouraging international cooperation in the economic development of underdeveloped countries.

At its first session, from 18 to 22 May 1959, the Commission on Permanent Sovereignty over Natural Resources instructed the United Nations Secretariat to prepare a preliminary study on the status of the right of permanent sovereignty of peoples and nations over their natural resources and to request governments, specialized agencies and the regional economic commissions of the United Nations to

supply information on the subject for incorporation in the Secretariat study (Report of the Commission to the Economic and Social Council on the work of its first and second sessions, E/3334). At its second session, from 16 February to 17 March 1960, the Commission considered the preliminary study prepared by the Secretariat (A/AC.97/5 and Corr. 1 and Add. 1), which included information it had received from governments, specialized agencies and the regional economic commissions of the United Nations. On 4 March 1960, the Commission requested the Secretariat to submit a revised study for its consideration at the following session (A/AC.97/7).

The revised Secretariat study (A/AC.97/5/Rev.1 and Corr. 1 and Add. 1) was considered by the Commission, at its third and final session, in May 1961 (Report of the Commission to the Economic and Social Council on the work of its third session, E/3511). On 10 May 1961, in the course of the debate in the Commission, Chile submitted a detailed draft resolution (A/AC.97/L.3) which proposed to adopt a declaration of four principles concerning the permanent sovereignty of peoples and nations over their natural resources. On 18 May 1961, following informal consultations with other members of the Commission, Chile submitted a revised draft resolution (A/AC.97/L.3/Rev.2). On 22 May 1961, following minor amendments to the text, a modified version of the Chilean draft resolution was adopted by the Commission; the Commission in turn adopted resolution I (E/3511, annex) by which it requested the Economic and Social Council to recommend that the General Assembly should adopt a draft resolution on permanent sovereignty, the text of which was reproduced therein. This draft resolution contained an eight-point declaration on permanent sovereignty over natural resources. The report of the Commission, together with the revised secretariat study and the observations made by the members of the Commission, were transmitted to the Economic and Social Council for its consideration.

On 3 August 1961, the Economic and Social Council decided to transmit the report of the Commission on Permanent Sovereignty, together with the summary records of the Council’s debate thereon and proposed amendments to the draft resolution, to the sixteenth session of the General Assembly (see resolution 847 (XXXII)). On 27 September 1961, the General Assembly allocated the agenda item entitled “Permanent sovereignty over natural resources” to its Second Committee. Due to time constraints during its sixteenth session, the Committee did not consider the draft resolution submitted by the Commission on Permanent Sovereignty over Natural Resources. On 15 December 1961, in its report to the General Assembly (A/5060), the Second Committee did, however, recommend that the General Assembly adopt a resolution by which it would, inter alia, decide that priority be given to the discussion of the draft resolution in the Second Committee at the next session of the Assembly. On 19 December 1961, the General Assembly followed the Second Committee’s recommendation inresolution 1720 (XVI).

At the seventeenth session of the General Assembly, in 1962, the Second Committee considered the draft resolution at various meetings in which several votes were held on sections of the draft resolution (A/C.2/17/SR.798-821, 834-835, 841, 842, 845-846, 848, 850, 861, 864 and 876-877). On 3 December 1962, the draft resolution as a whole, as amended by previous votes but still based in substance on the eight principles concerning the permanent sovereignty of peoples and nations over their natural resources, was put to a vote and adopted by the Second Committee (A/C.2/L.705). In its report to the General Assembly (A/5344/Add.1), the Second Committee recommended that the Assembly adopt a resolution based on its proposal. On 14 December 1962, the draft resolution, with some minor changes, was adopted, by 87 votes to 2, with 12 abstentions, as General Assemblyresolution 1803 (XVII).

Resolution 1803 (XVII)

Adopted by the United Nations General Assembly, 14 December 1962

THE GENERAL ASSEMBLY,

Recalling its resolutions 523 (VI) of 12 January 1952 and 626 (VII) of 21 December 1952,

Bearing in mind its resolution 1314(XIII) of 12 December 1958, by which it established the Commission on Permanent Sovereignty over Natural Resources and instructed it to conduct a full survey of the status of permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-determination, with recommendations, where necessary, for its strengthening, and decided further that, in the conduct of the full survey of the status of the permanent sovereignty of peoples and nations over their natural wealth and resources, due regard should be paid to the rights and duties of States under international law and to the importance of encouraging international co-operation in the economic development of developing countries,

Bearing in mind its resolution I S I 5 (XV) of 15 December 1960, in which it recommended that the sovereign right of every State to dispose of its wealth and its natural resources should be respected,

Considering that any measure in this respect must be based on the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States,

Considering that nothing in paragraph 4 below in any way prejudices the position of any Member State on any aspect of the question of the rights and obligations of successor States and Governments in respect of property acquired before the accession to complete sovereignty of countries formerly under colonial rule,

Noting that the subject of succession of States and Governments is being examined as a matter of priority by the International Law Commission,

Considering that it is desirable to promote international co-operation for the economic

development of developing countries, and that economic and financial agreements between the developed and the developing countries must be based on the principles of equality and of the right of peoples and nations to self-determination,

Considering that the provision of economic and technical assistance, loans and increased foreign investment must not be subject to conditions which conflict with the interests of the recipient State,

Considering the benefits to be derived from exchanges of technical and scientific information likely to promote the development and use of such resources and wealth, and the important part which the United Nations and other international organizations are called upon to play in that connection,

Attaching particular importance to the question of promoting the economic development of developing countries and securing their economic independence,

Noting that the creation and strengthening of the inalienable sovereignty of States over their natural wealth and resources reinforces their economic independence,

Desiring that there should be further consideration by the United Nations of the subject of permanent sovereignty over natural resources in the spirit of international co-operation in the field of economic development, particularly that of the developing countries,

I

Declares that:

1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.

2. The exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.

3. In cases where authorization is granted, the capital imported and the earnings on that capital shall be governed by the terms thereof, by the national legislation in force, and by international law. The profits derived must be shared in the proportions freely agreed upon, in each case, between the investors and the recipient State, due care being taken to ensure that there is no impairment, for any reason, of that State's sovereignty over its natural wealth and resources.

4. Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.

5. The free and beneficial exercise of the sovereignty of peoples and nations over their natural resources must be furthered by the mutual respect of States based on their sovereign equality.

6. International co-operation for the economic development of developing countries, whether in the form of public or private capital investments, exchange of goods and services, technical assistance, or exchange of scientific information, shall be such

as to further their independent national development and shall be based upon respect for their sovereignty over their natural wealth and resources.

7. Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace.

8. Foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith; States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance with the Charter and the principles set forth in the present resolution

DECLARATION OF PRINCIPLES OF INTERNATIONAL LAW CONCERNING CONCERNING FRIENDLY RELATIONS AND COOPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UN

Procedural History:

In the course of the Sixth Committee’s consideration of the item “Future work in the field of the codification and progressive development of international law”, at the sixteenth session of the General Assembly in 1961, twelve delegations put forward a proposal by which the General Assembly would inter alia decide to include a question entitled “Consideration of principles of international law relating to peaceful coexistence of States” in the provisional agenda of its following session, in 1962. Pursuant to an amendment made at the Sixth Committee, the expression “peaceful coexistence of States” in the twelve power draft resolution was replaced with “friendly relations and co-operation among States in accordance with the Charter of the United Nations” (A/C.6/L.492). On 18 December 1961, on the recommendation of the Sixth Committee, the General Assembly adoptedresolution 1686 (XVI), in which it decided to

place on the provisional agenda of its seventeenth session the question entitled “Consideration of principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations”.

At its seventeenth session, following the discussion of the question in the Sixth Committee, the General Assembly adopted resolution 1815 (XVII) of 18 December 1962, by which it recognized the paramount importance of seven principles of international law concerning friendly relations and co-operation among States and resolved to undertake a study of those principles with a view to their progressive development and codification. It decided accordingly to place the same item on the provisional agenda of its eighteenth session in order to study four of those principles (the principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations, the principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered, the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter, and the principle of sovereign equality of States) and to decide what other principles were to be given further consideration at subsequent sessions and the order of their priority. Finally, the Assembly invited Member States to submit in writing any views or suggestions that they may have on this item.

At its eighteenth session, the General Assembly adopted resolution 1966 (XVIII) of 16 December 1963, by which it decided to establish a Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States (also known as “the 1964 Special Committee”) composed of Member States to be appointed by the President of the General Assembly, which would draw up a report containing, for the purpose of the progressive development and

codification of the four principles so as to secure their more effective application, the conclusions of its study and its recommendations.

The Special Committee met in Mexico City, from 27 August to 2 October 1964, and its report (A/5746) was considered by the General Assembly in the framework of the Sixth Committee, at its twentieth session, in 1965. In the introduction to its report, the Committee indicated that it had established a Drafting Committee of 14 members entrusted with the task of preparing—upon completion of the discussion in the full committee—a text presenting the points of consensus as well as the various proposals and views for which there was support. By resolution 2103 (XX) of 20 December 1965, the Assembly took note of the report and decided to reconstitute the Special Committee to complete consideration and elaboration of the seven principles set forth in its resolution 1815 (XVII) and to submit a comprehensive report on the results of its study to the Assembly at the twenty-first session, with a view to adopt a declaration containing an enunciation of these principles.

From 1966 to 1969, the Special Committee met on annual basis (New York, from 8 March to 25 April 1966; Geneva: 17 July to 19 August 1967; New York: 9 to 30 September 1968; New York: 18 August to 19 September 1969), submitting reports to the General Assembly (respectively, A/6230, A/6799, A/7326 and A/7619). From its twenty-first to twenty-fourth sessions (1966-1969), following consideration by the Sixth Committee, the General Assembly took note of these reports and requested the Special Committee to continue its study of the matter (see, respectively, resolutions 2181 (XXI) of 12 December 1966, 2327 (XXII) of 18 December 1967, 2463 (XXIII) of 20 December 1968 and 2533 (XXIV) of 8 December 1969). At the twenty-fourth session, in 1969, the General Assembly took a number of decisions relating to the celebration of the twenty-fifth anniversary of the United Nations, and inter alia invited the Special Committee to expedite its work with a view to facilitating the adoption of an appropriate document by the General Assembly

during a commemorative session to be held the following year (resolution 2499 A (XXIV) of 31 October 1969). For this reason, in resolution 2533 (XXIV), the General Assembly asked the Special Committee to meet in the first half of 1970 to continue and complete its work, requesting it to endeavour to resolve the remaining questions relating to the formulation of the seven principles, in order to submit a comprehensive report at the Assembly’s twenty-fifth session, in 1970.

Prior to the 1970 session of the Special Committee, informal consultations were held in Geneva from 16 to 20 February 1970. During the 1970 session, also held in Geneva from 31 March to 1 May 1970, the Special Committee decided to dispense with the general debate which at earlier sessions had preceded the consideration of the principles referred to it. Instead, consultations, which were coordinated by the Chairman of the Special Committee, were held at an informal level. The basis for the consultations was the draft prepared by the Drafting Committee as adopted by the Special Committee in 1969 (A/7619), including amendments and proposals submitted in its 1966, 1967, 1968 and 1969 sessions. After considering the outcome reached at the informal meetings, the Drafting Committee adopted a report containing a draft declaration on all seven principles. On 1 May 1970, the Special Committee adopted the report of the Drafting Committee (A/AC.125/L.86). The Special Committee heard the position of various Governments on its work and added these statements to the draft Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States submitted to the General Assembly (see report of the Special Committee, A/8018).

The draft Declaration was considered by the General Assembly at its twenty-fifth session in 1970. The item was once again allocated to the Sixth Committee, which considered it from 23 to 28 September 1970 (meetings Nos. 1178 to 1184). Following this debate, sixty-four States sponsored a draft resolution, which contained the text of the Declaration on Principles of International Law

concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations in an annex. The draft resolution was adopted without objection by the Sixth Committee on 28 September 1970 (A/8082).

On the recommendation of the Sixth Committee, the General Assembly thus adopted, without a vote, resolution 2625 (XXV) of 24 October 1970, by which it approved the Declaration.

Resolution:

The General Assembly,

Recalling its resolutions 1815 (XVII) of 18 December 1962, 1966 (XVIII) of 16 December 1963, 2103 (XX) of 20 December 1965, 2181 (XXI) of 12 December 1966, 2327 (XXII) of 18 December 1967, 2463 (XXIII) of 20 December 1968 and 2533 (XXIV) of 8 December 1969, in which it affirmed the importance of the progressive development and codification of the principles of international law concerning friendly relations and co-operation among States,

Having considered the report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, which met in Geneva from 31 March to 1 May 1970,

Emphasizing the paramount importance of the Charter of the United Nations for the maintenance of international peace and security and for the development of Friendly relations and Co-operation among States, Deeply convinced that the adoption of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations on the occasion of the twenty-fifth anniversary of the United Nations would contribute to the strengthening of world peace and constitute a landmark in the development of international law and of relations among States, in promoting the rule of law among nations and particularly the universal application of the principles embodied in the Charter,

Considering the desirability of the wide dissemination of the text of the Declaration,

1. Approves the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, the text of which is annexed to the present resolution;

2. Expresses its appreciation to the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States for its work resulting in the elaboration of the Declaration;

3. Recommends that all efforts be made so that the Declaration becomes generally known.

1883rd plenary meeting, 24 October 1970

ANNEX

DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS

PREAMBLE

The General Assembly,

Reaffirming in the terms of the Charter of the United Nations that the maintenance of international peace and security and the development of friendly relations and co-operation between nations are among the fundamental purposes of the United Nations,

Recalling that the peoples of the United Nations are determined to practise tolerance and live together in peace with one another as good neighbours,

Bearing in mind the importance of maintaining and strengthening international peace founded upon freedom, equality, justice and respect for fundamental human rights and of developing friendly relations among nations irrespective of their political, economic and social systems or the levels of their development,

Bearing in mind also the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations,

Considering that the faithful observance of the principles of international law concerning friendly relations and co-operation among States and the fulfillment in good faith of the obligations assumed by States, in accordance with the Charter, is of the greatest importance for the maintenance of international peace and security and for the implementation of the other purposes of the United Nations,

Noting that the great political, economic and social changes and scientific progress which have taken place in the world since the adoption of the Charter give increased importance to these principles and to the need for their more effective application in the conduct of States wherever carried on,

Recalling the established principle that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means, and mindful of the fact that consideration is being given in the United Nations to the question of establishing other appropriate provisions similarly inspired,

Convinced that the strict observance by States of the obligation not to intervene in the affairs of any other State is an essential condition to ensure that nations live together in peace with one another, since the practice of any form of intervention not only violates the spirit and letter of the Charter, but also leads to the creation of situations which threaten international peace and security,

Recalling the duty of States to refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State,

Considering it essential that all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political

independence of any State, or in any other manner inconsistent with the purposes of the United Nations,

Considering it equally essential that all States shall settle their international disputes by peaceful means in accordance with the Charter,

Reaffirming, in accordance with the Charter, the basic importance of sovereign equality and stressing that the purposes of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with the requirements of this principle in their international relations,

Convinced that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security, Convinced that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary international law, and that its effective application is of paramount importance for the promotion of friendly relations among States, based on respect for the principle of sovereign equality,

Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter,

Considering the provisions of the Charter as a whole and taking into account the role of relevant resolutions adopted by the competent organs of the United Nations relating to the content of the principles,

Considering that the progressive development and codification of the following principles:

(a) The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations,

(b) The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered,

(c) The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter,

(d) The duty of States to co-operate with one another in accordance with the Charter,

(e) The principle of equal rights and self-determination of peoples,

(f) The principle of sovereign equality of States,

(g) The principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter,

so as to secure their more effective application within the international community, would promote the realization of the purposes of the United Nations,

Having considered the principles of international law relating to friendly relations and co-operation among States,

1. Solemnly proclaims the following principles:

The principle that States shall refrain in their international ~ relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations

Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.

A war of aggression constitutes a crime against the peace, for which there is responsibility under international law.

In accordance with the purposes and principles of the United Nations, States have the duty to refrain from propaganda for wars of aggression.

Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States.

Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect. Nothing in the foregoing shall be construed as prejudicing the positions of the parties concerned with regard to the status and effects of such lines under their special regimes or as affecting their temporary character.

States have a duty to refrain from acts of reprisal involving the use of force.

Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.

Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands including mercenaries, for incursion into the territory of another State.

Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.

The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal. Nothing in the foregoing shall be construed as affecting:

(a) Provisions of the Charter or any international agreement prior to the Charter regime and valid under international law; or

(b) The powers of the Security Council under the Charter.

All States shall pursue in good faith negotiations for the early conclusion of a universal treaty on general and complete disarmament under effective international control and strive to adopt appropriate measures to reduce international tensions and strengthen confidence among States.

All States shall comply in good faith with their obligations under the generally recognized principles and rules of international law with respect to the maintenance of international peace and security, and shall endeavour to make the United Nations security system based on the Charter more effective.

Nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful.

The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered

Every State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security and justice are not endangered.

States shall accordingly seek early and just settlement of their international disputes by

negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. In seeking such a settlement the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute.

The parties to a dispute have the duty, in the event of failure to reach a solution by any one of the above peaceful means, to continue to seek a settlement of the dispute by other peaceful means agreed upon by them.

States parties to an international dispute, as well as other States shall refrain from any action which may aggravate the Situation so as to endanger the maintenance of international peace and security, and shall act in accordance with the purposes and principles of the United Nations.

International disputes shall be settled on the basis of the Sovereign equality of States and in accordance with the Principle of free choice of means. Recourse to, or acceptance of, a settlement procedure freely agreed to by States with regard to existing or future disputes to which they are parties shall not be regarded as incompatible with sovereign equality.

Nothing in the foregoing paragraphs prejudices or derogates from the applicable provisions of the Charter, in particular those relating to the pacific settlement of international disputes.

The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.

The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention.

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Nothing in the foregoing paragraphs shall be construed as reflecting the relevant provisions of the Charter relating to the maintenance of international peace and security.

The duty of States to co-operate with one another in accordance with the Charter

States have the duty to co-operate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences.

To this end:

(a) States shall co-operate with other States in the maintenance of international peace and security;

(b) States shall co-operate in the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance;

(c) States shall conduct their international relations in the economic, social, cultural, technical and trade fields in accordance with the principles of sovereign equality and non-intervention;

(d) States Members of the United Nations have the duty to take joint and separate action in co-operation with the United Nations in accordance with the relevant provisions of the Charter.

States should co-operate in the economic, social and cultural fields as well as in the field of science and technology and for the promotion of international cultural and educational progress. States should co-operate in the promotion of economic growth throughout the world, especially that of the developing countries.

The principle of equal rights and self-determination of peoples

By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

(a) To promote friendly relations and co-operation among States; and

(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation

constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

Every State has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter.

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.

Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.

The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.

The principle of sovereign equality of States

All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature.

In particular, sovereign equality includes the following elements:

(a) States are judicially equal;

(b) Each State enjoys the rights inherent in full sovereignty;

(c) Each State has the duty to respect the personality of other States;

(d) The territorial integrity and political independence of the State are inviolable;

(e) Each State has the right freely to choose and develop its political, social, economic and cultural systems;

(f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

The principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter-:

Every State has the duty to fulfil in good faith the obligations assumed by it in accordance with the Charter of the United Nations.

Every State has the duty to fulfil in good faith its obligations under the generally recognized principles and rules of international law.

Every State has the duty to fulfil in good faith its obligations under international agreements valid under the generally recognized principles and rules of international law.

Where obligations arising under international agreements are in conflict with the obligations of Members of the United Nations under the Charter of the United Nations, the obligations under the Charter shall prevail.

GENERAL PART

2. Declares that:

In their interpretation and application the above principles are interrelated and each principle should be construed in the context of the other principles. Nothing in this Declaration shall be construed as prejudicing in any manner the provisions of the Charter or the rights and duties of Member States under the Charter or the rights of peoples under the Charter, taking into account the elaboration of these rights in this Declaration.;

3. Declares further that: The principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) AND INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ICESCR)

Common Article: Article I

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international

law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

The International Covenanton Civil and Political Rights (ICCPR)

Under Article 1 of the Covenant, the states commit themselves to promote the right to self-determination and to respect that right. It also recognises the rights of peoples to freely own, trade and dispose of their natural wealth and resources.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Cultural Rights (1966), together with the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966), make up the International Bill of Human Rights. In accordance with the Universal Declaration, the Covenants Òrecognize that “... the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.”

OPTIONAL PROTOCOL TO THE ICCPR

The First Optional Protocol to the International Covenant on Civil and Political Rights is an international treaty establishing an individual complaint mechanism for the International Covenant on Civil and Political Rights (ICCPR). It was adopted by the UN General Assembly on 16 December 1966, and entered into force on 23 March 1976. As of October 2011, it had 114 states parties and a further 35 signatories.

Summary

The Optional Protocol establishes an individual complaints mechanism for the ICCPR similar to those of the Optional Protocol to the Convention on the Rights of Persons with Disabilities and Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination. Parties agree to recognise the competence of the UN Human Rights Committee to consider complaints from individuals or groups who claim their rights under the Covenant have been violated. Complainants must have exhausted all domestic remedies, and anonymous complaints are not permitted. The Committee must bring complaints to the attention of the relevant party, which must respond within six months. Following consideration, the Committee must forward its conclusions to the party and the complainant.

While not expressly provided for in the Protocol, the HRC regards the recognition of its competence to hear complaints as imposing an obligation not to hinder access to the Committee and to prevent any retaliation against complaintants. It regards its findings as authoritative determinations of obligations under the Covenant, and their adoption as being required in order to provide an "effective remedy" under Article 2 of the ICCPR.

The Optional Protocol required ten ratifications to come into force.

GENERALCOMMENT NO. 12 – THE RIGHT TO SELF-DETERMINATION OF PEOPLES

1. In accordance with the purposes and principles of the Charter of the United Nations, article 1 of the International Covenant on Civil and Political Rights recognizes that all peoples have the right of self-determination. The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants

and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.

2. Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely "determine their political status and freely pursue their economic, social and cultural development". The article imposes on all States parties corresponding obligations. This right and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of international law.

3. Although the reporting obligations of all States parties include article 1, only some reports give detailed explanations regarding each of its paragraphs. The Committee has noted that many of them completely ignore article 1, provide inadequate information in regard to it or confine themselves to a reference to election laws. The Committee considers it highly desirable that States parties' reports should contain information on each paragraph of article 1.

4. With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right.

5. Paragraph 2 affirms a particular aspect of the economic content of the right of self-determination, namely the right of peoples, for their own ends, freely to "dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence". This right entails corresponding duties for all States and the international community. States should

indicate any factors or difficulties which prevent the free disposal of their natural wealth and resources contrary to the provisions of this paragraph and to what extent that affects the enjoyment of other rights set forth in the Covenant.

6. Paragraph 3, in the Committee's opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination. The general nature of this paragraph is confirmed by its drafting history. It stipulates that "The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations". The obligations exist irrespective of whether a people entitled to self-determination depends on a State party to the Covenant or not. It follows that all States parties to the Covenant should take positive action to facilitate realization of and respect for the right of peoples to self-determination. Such positive action must be consistent with the States' obligations under the Charter of the United Nations and under international law: in particular, States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self-determination. The reports should contain information on the performance of these obligations and the measures taken to that end.

7. In connection with article 1 of the Covenant, the Committee refers to other international instruments concerning the right of all peoples to self-determination, in

particular the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970 (General Assembly resolution 2625 (XXV)).

8. The Committee considers that history has proved that the realization of and respect for the right of self-determination of peoples contributes to the establishment of friendly relations and cooperation between States and to strengthening international peace and understanding.

CASE CONCERNING EAST TIMOR (Portugal v Australia)

Judgment of June 30, 1995

On 22 February 1991 Portugal had instituted proceedings against Australia concerning "certain activities of Australia with respect to East Timor". Portugal acted as the administering Power over East Timor in accordance with Chapter XI of the Charter of the United Nations. Portugal claimed that Australia, by the conclusion of a Treaty of "Cooperation in an area between the Indonesian Province of East Timor and Northern Australia of 11 December 1989", had failed to observe the obligation to respect the powers and duties of Portugal as the administering Power of East Timor, as well as the right of the people of East Timor to self-determination and the related rights. Australia, according to Portugal's allegations, had thereby incurred international responsibility vis-à-vis both the people of East Timor and Portugal, which claimed to have remained the administering Power according to several resolutions of the General Assembly and the Security Council, even though it had left East Timor definitely when Indonesia invaded East Timor in 1975. As the basis of jurisdiction Portugal referred to the declarations of both States according to Art. 36 paragraph 2 of the Statute. Australia objected to the jurisdiction of the Court and the admissibility of the application. The central issue for the Court was whether the 1989

Treaty could have been legally concluded between Indonesia and Australia or whether Portugal alone was empowered to conclude treaties on behalf of East Timor. Thus, the main question was whether the Court could decide the case in the absence of Indonesia which had not accepted the jurisdiction of the Court and was not inclined to intervene in the case.

Australia argued that the Court was confronted with a situation comparable to that in the Monetary Gold Case, namely that the Court would have to decide on the lawfulness of Indonesia's entry into and continuing presence in East Timor as well as the lawfulness of the conclusion of the Treaty, what could not be done in the absence of Indonesia. While Portugal agreed in principle on this point, it disagreed that the Court had in fact to decide on the forementioned questions. Portugal argued that the Court had only to judge upon the objective conduct of Australia, which consisted in having negotiated, concluded and initiated performance of the 1989 Treaty with Indonesia, and that this question was perfectly separable from any question relating to the lawfulness of the conduct of Indonesia.

In its judgment, however, the Court concluded that Australia's behaviour could not be assessed without first entering into the question of why Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so. The Court was of the opinion that the very subject-matter of the decision would necessarily be a determination of whether Indonesia could or could not have acquired the power to conclude treaties on behalf of East Timor relating to the resources of its continental shelf. Such a determination, however, could not be made without the consent of Indonesia.

The Court also rejected Portugal's additional argument that the rights which Australia had allegedly breached were rightserga omnes and as such permitted Portugal to sue Australia individually, regardless of whether or not another State had conducted itself in a similarly unlawful manner. The Court fully shared the assertion of Portugal that the right of peoples to self-determination had an erga omnes character. Nevertheless, the Court considered that the erga omnes character of a norm and the principle of consent to the Court's jurisdiction were two different things. Whatever the nature of the obligations invoked, the Court could not rule on the

lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State not a party to the case.

The Court likewise dismissed the argument of Portugal that the United Nations resolutions concerning the status of Portugal as administering Power were imposing upon all States an obligation not to recognize any authority of Indonesia over East Timor. The Court found that without prejudice to the question of the binding or non-binding nature of these resolutions such an obligation could not be inferred from those resolutions. Therefore, the Court would have necessarily to rule upon the lawfulness of Indonesia's conduct as a prerequisite for deciding Portugal's contention that Australia violated its obligation to respect Portugal's status as administering Power and East Timor's status as a non-self governing territory and the right of 7its people to self-determination and to permanent sovereignty of its natural resources. Thus, the rights and obligations of Indonesia would constitute the very subject-matter of the case and could only be judged with the consent of Indonesia. Since this consent was lacking, the Court had to dismiss the case, despite the importance of the questions raised.

RESERVATIONS MADE BY VIETNAM OF THE GENEVA CONVENTION OF 1949

(I) As regards the Geneva Convention of 12 August 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field:

Article 10: A request by the Detaining Power to a neutral Power or to an organization providing guarantees of impartiality and effectiveness, to undertake the functions entrusted to the Protecting Powers by the Convention, will not be recognized as lawful by the Democratic Republic of Vietnam, unless the State of which the wounded and sick in armed forces in the field are nationals has approved the request.

(2) As regards the Geneva Convention of 12 August 1949 for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea:

Article 10: A request by the Detaining Power to a

neutral Power or to an organization providing guarantees of impartiality and effectiveness, to undertake the functions entrusted to the Protecting Powers by the Convention, will not be recognized as lawful by the Democratic Republic of Vietnam, unless the State of which the wounded and sick in armed forces in the field are nationals has approved the request.

(3) As regards the Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War:

Article 4: 'The Provisional Revolutionary Government of the Republic of South Viet Nam does not recognize the provisions set forth in section 2 of said article relative to members of other militias and members of other volunteer corps, including those of organized resistance movements, because these provisions do not apply to the people's wars in the contemporary world'

Article 10: A request by the Detaining Power to a neutral Power or to an organization providing guarantees of impartiality and effectiveness, to undertake the functions entrusted to the Protecting Powers by the Convention, will not be recognized as lawful by the Democratic Republic of Vietnam, unless the State of which the wounded and sick in armed forces in the field are nationals has approved the request.

Article 12: The Democratic Republic of Vietnam declares that the transfer by the Detaining Power of prisoners of war to a Power which is a party to the Convention does not release the Detaining Power from its responsibility for the application of the provisions of the Convention to such prisoners.

Article 85: The Democratic Republic of Vietnam declares that prisoners of war tried and convicted of war crimes or crimes against humanity, in accordance with the principles laid down by the Nuremberg Judicial Tribunal, shall not benefit from the provisions of the present Convention as is specified in Article 85.

(4) Geneva Convention of 12 August 1949 relative to the Protection of Civilian Persons in Time of War.

Article 11: A request by the Detaining Power to a

neutral Power or to an organization providing guarantees of impartiality and effectiveness, to undertake the functions entrusted to the Protecting Powers by the Convention, will not be recognized as lawful by the Democratic Republic of Vietnam, unless the State of which the wounded and sick in armed forces in the field are nationals has approved the request.

Article 45: The Democratic Republic of Vietnam declares that the transfer by the Detaining Power of protected persons to a Power which is a party to the Convention does not release the Detaining Power from its responsibility for the application of the provisions of the Convention relating to civilian persons in time of war.

SOURCE: Notification by the depositary addressed to the ICRC on 23 July 1957.

*****

Reservations made upon accession on 3 December 1973 by the Provisional Revolutionary Government of the Republic of South Viet-Nam:

I. With regard to the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949:

Ad article 10The Provisional Revolutionary Government of the Republic of South Viet-Nam recognizes as lawful a request by the Detaining Power to a neutral country or a humanitarian organization, to assume the functions performed by protecting Powers only when the State on which the wounded and sick members of armed forces in the field depend shall have given prior consent to such a request.

2. With regard to the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949:

Ad article 10The Provisional Revolutionary Government of the Republic of South Viet-Nam recognizes as lawful a request by the Detaining Power to a neutral country, or a humanitarian organization, to assume the

functions performed by Protecting Powers only when the State on which the wounded, sick and shipwrecked members of armed forces at sea depend shall have given prior consent to such a request.

3. With regard to the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949:

Ad Article 4The Provisional Revolutionary Government of the Republic of South Viet-Nam does not recognize the 'conditions' lay down in item (2) of this article concerning "members of other militias and members of other volunteer corps, including those of organized resistance movements", because these conditions are not suited to cases of people's wars in the world of today.

Ad article 10The Provisional Revolutionary Government of the Republic of South Viet-Nam recognizes as lawful a request by the Detaining Power to a neutral country, or a humanitarian organization, to assume the functions performed by Protecting Powers only when the State on which the prisoners of war depend shall have given prior consent to such a request

Ad Article 12The Provisional Revolutionary Government of the Republic of South Viet-Nam declares that the transfer of prisoners of war by the Detaining Power to a Power which is a party to the Convention does not release the Detaining Power from its responsibility for the application of the provisions of the Convention.

Ad Article 85The Provisional Revolutionary Government of the Republic of South Viet-Nam declares that prisoners of war prosecuted and convicted for crimes of aggression, crimes of genocide or war crimes, and crimes against humanity in accordance with the principles established by the Nuremberg Tribunal shall not benefit from the provisions of the present Convention.

4. With regard to the Geneva Convention relative to

the Protection of Civilian Persons in Time of War of 12 August 1949:

Ad article 11The Provisional Revolutionary Government of the Republic of South Viet-Nam recognizes as lawful a request by the Detaining Power to a neutral country, or a humanitarian organization, to assume the functions performed by Protecting Powers only when the State on which the civilian persons in question depend shall have given prior consent to such a request

Ad Article 45The Provisional Revolutionary Government of the Republic of South Viet-Nam declares that the transfer of civilian persons protected by this Convention to a Power which is a party to the Convention does not release the Detaining Power from its responsibility for the application of the provisions of the Convention.

ISLAND OF LAS PALMAS (MIANGAS) CASE

A case involving a territorial dispute over the Island of Palmas (or Miangas) between the Netherlands and the United States which was heard by the Permanent Court of Arbitration. Palmas (known as Pulau Miangas in Bahasa Indonesian) was declared to be a part of the Netherlands East Indies and is now part of Indonesia.This case is one of the most highly influential precedents dealing with island territorial conflicts.

FactsPalmas (Miangas) is an island of little economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and had a population of about 750 in 1932, when the case was decided. Palmas lies between Mindanao, the southernmost part of the Philippines, and the Nanusa Islands, the northernmost part of Indonesia other than Palmas.In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas lay within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. On 23 January 1925, the two governments signed an agreement to that effect.

Ratifications were exchanged in Washington on 1 April 1925. The agreement was registered in League of Nations Treaty Series on 19 May 1925. The arbitrator in the case was Max Huber, a Swiss lawyer.The question before the arbitrator was whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands.The legal issue presented was whether a territory belongs to the first discoverer, even if they do not exercise authority over the territory, or whether it belongs to the state which actually exercises sovereignty over it.The Arbitrator's decisionArbitrator Max Huber ruled in favor of the Netherlands’ position and stated that the Netherlands held actual title to Palmas:For these reasonsThe Arbitrator in conformity with Article I of the Special Agreement of January 23rd, 1925 DECIDES that : THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the Netherlands territory. done at The Hague, this fourth day of April 1928. Max Huber, ArbitratorMichiels van Verduynen, Secretary-General.

Right by discoveryIn the first of its two arguments, the United States argued that it held the island because it had received actual title through legitimate treaties from the original "discoverer" of the island, Spain. The United States argued that Spain acquired title to Palmas when Spain discovered the island and the island was terra nullius. Spain's title to the island, because it was a part of the Philippines, was then ceded to the United States in the Treaty of Paris (1898) after Spain's defeat in the Spanish-American War. The arbitrator noted that no new international law invalidated the legal transfer of territory via cession.However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris could not grant Palmas to the United States if Spain had no actual title to it. The arbitrator concluded that Spain held an inchoate title when Spain “discovered” Palmas. However, for a sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had to actually exercise authority, even if it were as simple an act as planting a flag on the beach. In this case, Spain did not exercise authority over the island after making an initial claim after discovery and so the American claim was based on relatively weak grounds.

ContiguityThe United States also argued that Palmas was American territory because the island was closer to the Philippines than to the Netherlands East Indies. The arbitrator said there was no positive international law which favored the United States approach of terra firma, where the nearest continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land noted that if the international community followed the proposed American approach, it would lead to arbitrary results.

Continuous and peaceful display of sovereigntyThe Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that the United States had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or administrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, then there would have been conflicts between the two countries but none are provided in the evidence.

ConclusionUnder the Palmas decision, three important rules for resolving island territorial disputes were decided:

Firstly, title based on contiguity has no standing in international law.

Secondly, title by discovery is only an inchoate title.

Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery.

Shorter Summary:

By the Special Agreement of 23 January 1925, the parties submitted to the arbitration of a tribunal of the Permanent Court of Arbitration, consisting in a single arbitrator, the question of the whereabouts of sovereignty over the island of Palmas (or Miangas), an island situated within the Philippines, and therefore ostensibly within the terms of the cession by Spain to the United States effected by art. III of the Treaty of Paris of 10 December 1898 (187 C.T.S. 100) terminating the Spanish-American War, but claimed by the Netherlands as having come under the suzerainty of the Dutch East India Company as early as 1677, if not 1648, and as having remained under Netherlands sovereignty ever since. By his award, celebrated for its lucidity, M. Max Huber held in favour of the Netherlands.

The decision begins by pointing out that, when territorial sovereignty is disputed, ‘it cannot be sufficient to establish the title by which [it] was validly acquired at a certain moment; it must also be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical. This demonstration consists in the actual display of State activities such as belongs only to the territorial sovereign’: at 839. Here, since the United States relied for its claim on the cession by Spain, and since, if Spain had no valid title, she could convey none, the essential point was the status of the island at the moment of the conclusion and coming into force of the Treaty of Paris—‘the critical moment’. The United States, it was true, based its claim as successor to Spain in the first place on discovery, and it did appear that the island was discovered by Spain in the sense that it was probably sighted by a Spanish navigator in 1526. The effect of that event was to be judged according to the notions of international law then entertained notwithstanding that they were later profoundly modified. But upon the view most favourable to the claimant State, discovery gave no more than an inchoate title, a jus ad rem to be completed by actual and durable taking of possession within a reasonable time. In the application of the principle of

the so-called inter-temporal law, moreover, a distinction was to be drawn between the creation of rights and their existence. ‘The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law’: at 845. Since the middle of the eighteenth century, it had come to be accepted that occupation, to constitute a claim to territorial sovereignty, must be effective. Thus, discovery could not now suffice to establish sovereignty, even if it ever did so. If it merely created an inchoate title, such had never been completed by any act of occupation on the part of Spain. Further, even if an inchoate Spanish title had still persisted in 1898, it could not prevail over the continuous and peaceful display of authority by another State. The award contains further significant statements respecting the value to be placed on maps in territorial disputes and as to the application of the principle of contiguity in relation to islands.

TRAIL SMELTER ARBITRATION

The Trail Smelter is located in Trail, British Columbia in the south-eastern corner of the Kootenays, which is known as a mineral-rich area. The smelter was initially built by American mining engineer and magnate F. Augustus Heinze in 1895 to treat lead and zinc ore materials from nearby mines. Prior to building the smelter, agents for Heinze signed a contract guaranteeing 75,000 tons of ore would be provided by Rossland's LeRoi Mining Company. The smelter and the freight railway to the Rossland mines were bought by the Canadian Pacific Railway (CPR) for $1,000,000 in 1898, when tracks were being laid into the town and during the construction of a competing smelter in nearby Northport, Washington State. The Trail Smelter became a factor in the Canadian government's efforts to establish a smelting industry in Canada, which had sent ores to American smelters for processing in the past. The Trail Smelter operation grew, adding other local mines to the portfolio, and were incorporated as the Consolidated

Mining and Smelting Company of Canada (COMINCO) in 1905, with continuing support from the CPR. When completed in 1895, the smelter could process 250 tons of ore daily and had smoke stacks 150 feet high to help disperse the fumes. During the arbitration that followed the dispute, the Tribunal commented that by 1906 Trail had 'one of the best and largest equipped smelting plants on this continent.'" By 1916 the Trail Smelter was producing monthly outputs of 4,700 tons of sulphur, but with post World War I expansion and technological improvements to the smelting process, the company doubled the smelter's output throughout the 1920s and was producing 10,000 tons monthly by 1930.

Most of Trail's male residents worked for the smelter and local businesses and farmers relied on the income from smelter employee salaries. Smoke from the smelter was seen by many residents as a sign of prosperity and continued employment; local residents commented that the "thicker the smoke ascending from Smelter Hill the greater Trail's prosperity." On the other hand, local farmers complained about the effects of the toxic smoke on their crops, which eventually led to arbitration with COMINCO between 1917 and 1924, and resulted to the assessment $600,000 in fines being levied against the defendant. The fines were to serve as compensation for smoke damage to crops and included COMINCO buying four complete farms (out of sixty farms involved) closest to the stacks. No government regulations of the smelter's output were imposed on COMINCO following the 1924 decision.

As a direct consequence of the local dispute and arbitration, COMINCO looked for ways to reduce the smelter's smoke output while increasing the smelter's production. The initial solution involved increasing the height of the smoke stacks to 409 feet in 1926 in an effort to disperse the smelter's smoke by pushing it higher into the atmosphere, but this local solution proved to be a problem for their Washington neighbours.

The Trail Smelterarbitration of 1938 and 1941 was a landmark decision about a dispute

over environmental degradation between the United States and Canada. This was the first decision to recognize international liability for damages caused to another nation, even when no existing treaty created an obligation to prevent such damage.

A tribunal was set up by Canada and the United States to resolve a dispute over timber and crop damages caused by a smelter on the Canadian side of the border. The tribunal decided that Canada had to pay the United States for damages, and further that it was obliged to abate the pollution. In delivering their decision, the tribunal made an historic and often-cited declaration: "Under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence..." The case was landmark because it was the first to challenge historic principles of international law, which subordinated international environmental duty to nationalistic claims of sovereignty and free-market methods of unfettered industrial development. The Trail Smelter decision has since become the primary precedent for international environmental law, which protects the environment through a process known as the "web of treaty law." International environmental law is based on individual governmental responses to discrete international problems, such as the Trail Smelter issue. Legal decisions over environmental disputes between nations are made in reference to a growing body of treaties, conventions, and other indications of "state practices."

The Trail Smelter decision has shaped the core principle underlying international environmental law. According to this principle, a country which creates transboundary pollution or some other environmentally hazardous effect is liable for the harm this causes, either directly or indirectly, to another country. A much older precedent for this same principle is rooted both in Roman Law and

Common Law: sic utere ut alienum non laedas—use your own property in such a manner as not to injure that of another. Prior to the twentieth century, this principle was not relevant to international law because actions within a nation's borders rarely conflicted with the rights of another.

TANADA V ANGARA

Facts :This is a petition seeking to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement. Petitioners question the concurrence of herein respondents acting in their capacities as Senators via signing the said agreement.

The WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and industrial products. Thus, provides new opportunities for the service sector cost and uncertainty associated with exporting and more investment in the country. These are the predicted benefits as reflected in the agreement and as viewed by the signatory Senators, a “free market” espoused by WTO.

Petitioners on the other hand viewed the WTO agreement as one that limits, restricts and impair Philippine economic sovereignty and legislative power. That the Filipino First policy of the Constitution was taken for granted as it gives foreign trading intervention.

Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement.

Held:In its Declaration of Principles and state policies, the Constitution “adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity , with all nations. By the doctrine of incorporation, the country is bound by generally accepted principles of

international law, which are considered automatically part of our own laws. Pacta sunt servanda – international agreements must be performed in good faith. A treaty is not a mere moral obligation but creates a legally binding obligation on the parties.Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute because it is a regulation of commercial relations among nations. Such as when Philippines joined the United Nations (UN) it consented to restrict its sovereignty right under the “concept of sovereignty as autolimitation.” What Senate did was a valid exercise of authority. As to determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. The act of signing the said agreement is not a legislative restriction as WTO allows withdrawal of membership should this be the political desire of a member. Also, it should not be viewed as a limitation of economic sovereignty. WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the people be allowed, through their duly elected officers, make their free choice.Petition is DISMISSED for lack of merit.

Second Digest

FactsOn April 15, 1994, the Philippine Government represented by its Secretary of the Department of Trade and Industry signed the Final Act binding the Philippine Government to submit to its respective competent authorities the WTO (World Trade Organization) Agreements to seek approval for such. On December 14, 1994, Resolution No. 97 was adopted by the Philippine Senate to ratify the WTO Agreement.This is a petition assailing the constitutionality of the WTO agreement as it violates Sec 19, Article II, providing for the development of a self reliant and independent national economy, and Sections 10 and 12, Article XII, providing for the “Filipino first” policy.

IssueWhether or not the Resolution No. 97 ratifying the WTO Agreement is unconstitutional

RulingThe Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino interests only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationalist policy. Furthermore, the constitutional policy of a “self-reliant and independent national economy” does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the international community.”The Senate, after deliberation and voting, gave its consent to the WTO Agreement thereby making it “a part of the law of the land”. The Supreme Court gave due respect to an equal department in government. It presumes its actions as regular and done in good faith unless there is convincing proof and persuasive agreements to the contrary. As a result, the ratification of the WTO Agreement limits or restricts the absoluteness of sovereignty. A treaty engagement is not a mere obligation but creates a legally binding obligation on the parties. A state which has contracted valid international obligations is bound to make its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS), Art. 194

Measures to prevent, reduce and control pollution of the marine environment

1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce

and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.

2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent:

(a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;

(b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels;

(c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices;

(d) pollution from other installations and devices operating in the marine

environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

4. In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.

5. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.