Beruflich Dokumente
Kultur Dokumente
committees.
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143
the matter.
two each from Paraguay and Bolivia, met ten times in Washington
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144
substance of the dispute was not settled until some ten years
later.
62
French-Slamese Commission, 1946-1947
6p
Suzanne Bastid, op. clt., pp. 1-20.
^ This case represented the first application of the
General Act. While Siam had not ratified it, the 1937 treaty
with France provided for its application between the two
states.
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status quo before the war was re-est h e ....
Belgian-Danish
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145
change this prewar status, and the commission was charged with
64
Belgian-Danish Commission, 1952
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146
the French frontier. The other arose from a Swiss charge that
lapsed since the beginning of one dispute and eight years for
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147
proposed terms.
66
French-Moroccan Commission, 1957-1958
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148
right to stop the plane since it and the crew were French.
home.
*
three to two decision not to include Ben Bella and his men on
as follows:
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149
September 1931. 68
(2) French-Portugese commission--A commission was set up
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150
them.
* * *
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151
procedure, and it has also created problems which have not yet
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152
recourse than to the League Council (or the United Nations) for
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CHAPTER VII
153
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154
recommend. 2
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155
as follows:
i5
the maintenance of international peace and security. While
many statements in Security Council debates uphold this
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156
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157
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\o
The text of the Statement appears in Documents of the
San Francisco Conference on International Organization, vol.'
117 pp. 716-714 and in Leland Goodrich and Edvard nambro,
op. cit.. pp. 216-218. An explanation of the interpretation
is given in the Hearings on the Gharter of the United Hations
...etc., p. 8 5. N. Bentwlch and A. Margin fop, cit.. p. 81)
consider this voting requirement as legally quite anomalous"
since an investigation designed to establish the competence of
the Council or the lack of it is clearly a procedural matter.
Among the many discussions on the Four Powers Statement
and the Yalta voting formula, see, for example, the follow
ing which deals with the matter of investigations: Yuaa-Li
Liang, "The Settlement of Disputes in the Security Council:
The Yalta Voting Formula," British Yearbook of International
Law, vol. 24 (1947b PP» 330-35$* especially, pp. 341-342.
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159
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160
1 C
under Article 29. This would he In accordance with a
General Assembly recommendation that certain decisions with
argued the delegate from Great Britain, "if the Assembly were
years.2 3-
^ United Nations Doc. A/C.l/SR.9 6 , P* 5. Other articles
In which implied Investigative powers have been found are as
follows: Article 14 authorizing the General Assembly to
recommend measures for the peaceful adjustment of situations
likely to Impair the general welfare; Article 13-1 authorizing
the Assmmbly to Initiate studies and make recommendations to
promote International cooperation In the political field;
Article 10 empowering the Assembly to discuss any question
within the scope of the Charter, and Article 22 giving the
Assembly power to establish subsidiary organs. On these Im
plied powers see, for example, Hans Kelsen, op. cit.. p. 4 5 7 .
20 United Nations, Security Council, Official Records.
1st yr., 2nd sess., No. 16, p. 404.
21 The Commission to Study the Organization of
Peace (Strengthening the United Nations /T9577, p. 5)
has confirmed this right ana recommenced an expansion
of the Secretary-General *s Investigative authority.
See also Paul Hasluck, op. cit., p. 99.
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162
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163
body.
require the consent of states where they take place, and (3)
majority.
oh
* Its establishment confirmed the right of the Assembly
to delegate investigatory authority, a point strongly disputed
by the Communist bloc (H. Field Haviland. The Political Role
of the General Assembly pp. 82-83). It was argued
successfully that the committee had been given tasks which
could be properly delegated to it, and that the use of commis
sions of inquiry would be one means to discharge them. On this
point Professor Kelsen has noted that since Article 22
authorizes the General Assembly to establish subsidiary organs
"as it deems necessary" to perform its functions, it thus has
the power to instruct them to do any work which the General
Assembly deems necessary for the performance of its functions
(Hans Kelsen, op. cit., p. 166).
The question of the authority^of the Security Council to
delegate investigative powers has also been debated. One of the
first inquiry commissions--in'the Greek frontiers dispute-- was
specifically authorized to establish a subcommission to make
inquiries after the main group's departure.
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164
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166
concerned.
Unlike practice within the League where the decision to
conduct an Inquiry always followed the recommendation of the
rapporteur for the case, the Issue In the United Nations of
whether such action should be taken has usually been extensively
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167
4
In such situations have been blocked by the veto.
Each time a proposal to Initiate an Inquiry Is Introduced
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169
political fields.
Whatever Its merits, the practice of selecting member
governments to compose commissions has created some problems
I
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Czech government resulted In a new representative of that state
ship .
41
Report of the Security Council to the General
Assembly lo July 1§60--15 General" Assembly, Official
Records/ lbth sess., Supp. 2{k/Hobi).
ho
An explanation of the unusual procedure was given
by one of the sponsors of the resolution (United
Nations, General Assembly, Official Records, 15th sess.,
Plenary Meetings, April 14, I96I- P- 2 9 5 ).
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171
jij,
Spanish Question
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173
peace, and recommended that unless the Franco regime was with
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174
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175
Corfu Channel^
and Greece. Hie report, which did not deal with the sub
stance of the dispute, suggested that the first step for the
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177
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178
K7
India-Pakistan: Kashmir*"
In January, 1948 the Security Council was seized of the
59
especially successful. Two reports were submitted to the
its territory.
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182
area.
In the succeeding pages, the commissions established and
63
Palestine
62 Ibid.. p. 6 3.
^3 The five-volume report of the commission appears
in United Nations Doc. A/364, General Assembly, Offlc:Ul
Records. 2nd spec, sess., Supp.11. See also, for example,
the report to the Assembly by the Ad Hoc Committee on the
Palestinian Question, United Nations Doc. A/5 1 6 (November
25, 1947) and United Nations, Organization and Procedure
of United Nations Commissions: The tJnited Nations
Special Committee on Palestine. Pub. 1949.X. 5"Tl9WT
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183
64
proposals. The commission was authorized to conduct
s
K
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184
United Nations, this had the greatest and most direct effect
66
on the action taken by the principal organ.
Eritrea67
views about the future of Eritrea that It became the only group
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185
69
to date which has not been able to present a majority report.
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186
7 k
Hungary1
8o
to continue ob-serving the matter.
81
Congo
Since I960 when the Congo became independent, the United
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188
leaders and studied the situation, but had little success with
84
Territory of South-West Africa
82
Four members subsequently withdrew. The task of the
commission was explained by the chairman (Nigeria) in the
commission's report (United Nations Doc. A/4711* p. 102).
83 Morocco had been absent during the drafting and sign ing;
Ghana did not sign, and Nigeria and India had reservations.
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189
the United Nations and the Union of South Africa over the dis
86
conflict. The General Assembly approved the report on December
19, 1961, and set up a special com mittee to help prepare the
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190
88
Angola
that the raids in Luanda were locally inspired and not led by
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191
an international investigation.
and United Nations documents, and cooperated with and used the
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192
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193
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194
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CHAPTER VIII
195
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196
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197
3
Organ of Consultation and take necessary measures.
Because not all states in the hemisphere have ratified
the Bogota Pact, the Rio Treaty (which has been ratified
by all and which provides machinery for handling matters
concerning the peace in the American region as well as
disputes involving armed force) is more frequently
invoked.^
The scope of questions which can be the subject of an
3
The text of the Rio Treaty (the Inter-American Treaty
of Reciprocal Assistance) appears in the Annals of the
Organiza tion of American States, vol. 1 (19^9)t pp. Bf-90.
On the powers of the Council when acting as
Provisional Organ of Consultation see Inter-American
Juridical Committee, Opinion on the Scope of the Powers
of the Council of the OAS (March l^El),p. io.
*■See, for example, William Manger, Pan America in Crisis:
the Future of the OAS (1961), p. 50*
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198
5
attack or a threat to the peace. The Council may be seized of a
inquiry, has usually set the date of the meeting of the Organ
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199
was not organized until eighteen years later and was actually
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200
o
mission, was denied permission to enter Guatemala. One
result of the change in the Committee!s authority was a
period of relative inactivity from May 1956 to 1959* The
Inter-American Juridical Committee has observed that
statements of the Peace Committee during this period
show "real and specific situations" where its services
could have been used but where it was not consulted
"probably because of the rigid statutes in
force...."10 In 1959 "the Committee's powers were
partially restored by a resolution of the Fifth Meeting of
the Consultation of Ministers of Foreign Affairs at Santiago.
ing commissions.1^
When establishing a commission of inquiry, the Council
of the Organization of American States has outlined the task
14
and their antecedents." The task of the commission was
16 Ibid-
17 Ibid., p. 81.
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203
l8
visional Organ of Consultation.
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204
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205
20
the applicable provisions of their charters. In
compliance
with the United Nations Charter, the Security Council is
regularly infonned of any action taken by the Council of the
matter.
There have been at least seven instances since 19*19 when
«
Committee. In addition, there have been several Instances
Investigations.
its armed forces had been Involved, and accused Costa Rica
territory. The report noted also that Costa Rica had failed to
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208
13# 1950, the committee presented its find ings and conclusions
nationalities
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209
o k
Guatemala-Honduras and Nicaragua, 1954
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210
trip because the course of events during the day had placed
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211
which held its first meeting the same day. The committee was
After leaving for Costa Rica (the day after its establish
tary forces and material. When the committee cabled the Council
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212
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213
28
Honduras and Nicaragua, 1957
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214
the investigation committee in this case did not deal with the
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215
had presented the matter to the Council where the members were
appropriate organ.
The Peace Committee subsequently initiated its investiga
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216
32
Dominican Republic and Venezuela, July, i960
31 Ibid., p. 5.
3s Americas, vol. 12 (August, September i9 6 0 ), pp. 2 and
3-4 and New York Times, August 21, i9 6 0 .
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217
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218
time.
Cuba, 1961-196236
the Indications that Cuba was being used as a base for sub
substance, the report concluded that the ties of Cuba with the
system and that they would prevent the Cuban government from
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221
# * *
become the basis for future action In regard to the dis pute
their mission within a day or two from the time when the
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222
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CHAPTER IX
the boundary between the United States and Canada.. The Com
223
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224
as follows:
...Any other questions or matters of difference
arising between them involving the rights, obliga
tions, or interests of either in relation to the
other or to the inhabitants of the other, along the
common frontier...shall be referred from time to
time to the International Joint Commission for ex
amination and report, whenever either /government/
...shall request that such questions or
matters of difference be so referred.
The International Joint Commission is
authorized in each case so referred to examine
into and report upon the facts and circumstances
of the particular questions and matters
referred, together with such conclusions and
recommendations as may be appropriate, subject,
however, to any restrictions or exceptions which
may be imposed...by the terms of the reference.
Such reports of the Commission shall not be re
garded as decisions of the questions or matters...
either on the facts or the law, and shall in no
way have the character of an arbitral award.
The Commission shall make a joint report to both
governments in all cases in which all or a majority of
the commissioners agree, and in case of disagree ment
the minority may make a joint report to both
p
C. J. Chacko, op. clt., pp. 75-76.
3 United States, Treaty Series, No. 548. Details of the
negotiations are discussed in Alan 0. Gibbons, "Sir George
Gibbons and the Boundary Waters Treaty of 1909;H Canadian
Historical Review, vol. 34 (June 1953)t PP. 124-1387
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225
following manner:
The Interpretation of the Treaty by the two
governments Is that under Article 9 one government
may request that a matter be referred, but It is
not referred except by the consent of the other
government, so that the two governments Interpret
Article 9 as meaning that In order to refer a
ques tion to the Commission it requires the
concurrent action of both governments.®
The task of the Joint Commission when handling a problem
g
Commissioner J. Tawney in International Joint
Commis sion, Hearings, Rainy River Improvement Co., p.
84, as cited by C. J. Chacko, op. clt., p. 242.
7 L. M. Bloomfield and Gerald P. Fitzgerald, Boundary
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227
o
accounts largely for Its broader authority. It consists of
six members, three named by each party, and is therefore
similar in composition to the commissions which were to be
9
set up by the Taft-Root treaties of 1910. When the
Commission
meets in the United States, the chairman is named by the
United States section; when it meets in Canada, the Canadian
Q
A ten-member commission chosen in a similar manner
was established by the Soviet Union and Poland in 1948 to
prevent, Investigate, and, if possible, settle border
incidents (United Nations, Treaty Series. No. 576).
^ No provision is made in the treaty or in the rules
of the Commission concerning the length of the terms. Some
con cern has been expressed about political changes
threatening the Commission's independence. See, for
example, Robert A. MacKay, "The International Joint
Commission Between the United States and Canada, "American
Journal of International Law, vol. 22 (1 9 2 8), pp. 316-317.
or Papers..,o7~tiie International Joint Commission, p. 9 8 .
10 The text of the rules of procedure adopted in
1912 by the Commission appear in C. J. Chacko, op.
clt., pp. 395-*K)4 and in L. M. Bloomfield and Gerald
F. Fitzgerald, op. clt., pp. 224-232.
In its report on the Pollution of Boundary Waters case
in 1951 the Commission commented on the advantages of using
technical advisers and experts. It noted that circuitous,
(This footnote is completed on the following page.)
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228
I
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229
personnel.
In fulfilling the terms of the Treaty, both parties have
^
The United States passed enabling legislation on
March 4, 1911 (United States, Statutes at Large, vol. 36,
p. 2 8 5 ). The texts of the legislation of both parties
appears in C. J. Chacko, op. clt., pp. 406-408.
14 L. M. Bloomfield and Gerald P. Fitzgerald, op. cit.,
p. 60.
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230
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231
17
of water resources of a whole river basin.
17
1 The cases of the Commission are listed by dockets.
A very useful summary of Dockets 1 through 72 appears in L. M.
Bloomfield and Gerald F. Fitzgerald, op. clt.. pp. 65 -2 0 5 .
The following is a list of the references made under Article 9
along with a brief description of the investigative task in
volved, docket numbers and dates of submission:
Title, Date of Number of Investigative Tasks
Submission Docket
Lake of the Woods Levels,
3 Regulation of
1912 lake levels.
Pollution of Boundary 4 Pollution of
Waters, 1912 boundary waters
Livingstone Channel, 1912 5 Navigation and
water levels
17 Navigation, power pro
St. Lawrence River Navigation jects water resources
and Power Investigation, of a whole river
basin, dam, waterways.
1920
20 Regulation of lake levels
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232
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233
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234
Columbia from the Kootenay into the Columbia and thence into the
op
L. M. Bloomfield and Gerald F. Fitzgerald, op. cit.,
pp. 164-165.
Some of the legal issues involved are discussed by Charles
E. Martin, "The Diversion of Columbia River Waters," Proceed
ings of the American Society of International Law, vol. 51
1195717 PP. ^ 1 0 :
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235
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236
International Courts
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237
pQ
The facts of these cases may be briefly summarized as
follows: Chorzow Factory— After the decision in the case of the
German Interests in Upper Silesia in favor of Germany, the
Germans and Poles failed p o agree on the value of the Chorzow
factory property. The Court determined that indemnity was due,
but the parties failed to present adequate data bearing upon the
amount. The Court established a commission of inquiry and
reserved fixing of the amount until the report was to be issued
(Permanent Court of International Justice, Series A,
No. 17 2T928/5.
Corfu Channel— On October 22, 1946, two British destroyers
struck mines while passing through the Corfu Channel under
secret orders. The British subsequently swept the channel
with a member of the Mediterranean Mine Clearance Board ob
serving. Two German mines were recovered and taken to Malta
for inspection. Diplomatic negotiations with Albania having
failed, Great Britain took the case to the Security Council
where no action was possible because of the veto. Britain then
took the case to the Court claiming that Albania was responsible
for the explosions and liability for damages. The British con
tended that the mines were laid by Yugoslavia with Albanian
connivance or that Albania knew the mines had been laid and
failed to give notice as required by international law. Albania
counterclaimed that Great Britain had violated her sovereignty
on the original voyage by not being In innocent passage and
again with the mine sweeping operations. The Court upheld the
British contention that Albania knew or should have known of
the mining and failed to give warning, and upheld Albanian claim
that its sovereignty was violated by the mine sweeping opera
tions. In a separate proceeding in which Albania refused to
participate, the Court set the amount of indemnity, which has
not been paid. (International Court of Justice, Reports of
Judgments, Advisory Opinions and Orders, 1949, pp. 4ff and
244ff; International Court of Justice,The Corfu Channel Case,
5 vols. £1949, 195#,
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238
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239
tion by Dr. Scott made in 1920 while plans were being drawn
for the Permanent Court of International Justice has, however,
ment suggests the conditions under which the Court might see
of the Court and the Court registrar was to provide the com
dates, and the purpose for which the mines were laid? Could
Albanian authorities have seen the mines being loaded? How
many mines could a particular minelayer carry and how long
would it take to load them? What means were employed to lay
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242
its own ranks. For the Corfu Channel investigation, the Court
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243
tasks. The Court rules (for both Courts) state only that the
Court order specified that the parties had the right to make
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244
under normal weather conditions for this area, the mine laying
„44
operations...must have been noticed by the coast guards.
Other courts than the Permanent Court of International
Justice and the International Court of Justice have had the
^ Ibid., p. 161 .
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245
in 1959. 47
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PART II
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CHAPTER X
reports.
247
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248
Nature of Questions
about the uses of the water, land, and the atmosphere at the
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249
this category have also drawn the most opposition from parties
directly concerned.
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250
and political issues, rather than Just one of them, have been
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251
(4) Prance and Switzerland (1955)» and (5) Denmark and Belgium
involving law are (l) that the findings of the former will not
work will involve legal issues. This has often been done.
affairs.
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252
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253
Terms of Reference
has left them open to charges that they exceeded their mandate,
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254
to it. This charge was made, for instance, about the work of the
had been made. Neither the pre liminary debates in the Security
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255
out what they were supposed to do. Even when they have
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256
If more than one commission has been sent to the same vicinity
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257
Composition
their competence.
2
L. M. Bloomfield and Gerald Fitzgerald, op. clt.,
pp. 61-62.
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258
view of the Cold War and the division of the members into rather
various groups and Interests within the organiza tion, that is,
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259
inquiry commissions.
Either organ, in setting up a commission, could specify
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260
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261
members, five being used in its last two disputes, where the
7
Suzanne Bastid, op. cit., p. 20.
8 Ibid.
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262
during recent years has been the enlarged size of the delega
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263
Pakistan where the size originally ranged from one to five for
i
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264
experts.
Type of Commission
matter of fact, there has not been much urgency in the selec
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265
nent inquiry commission may not be the most practical method for
Security Council set a deadline for the selec tion of the fifth
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266
commissions (as for the Dogger Bank inquiry and the Corfu
12
In the case of the Conciliation Commission for the
Congo, even United Nations authorities in the area requested
that the visit be delayed.
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267
every time an inquiry within the League was undertaken; this did
the parties and when it was clear that cooperation from one or
mandate.
13
without the parties' consent, may be constructive. It would
13
As noted earlier, however, the inquiry made by the
Security Council's subcommittee in Laos over the opposition of
the Soviet Union was not extensive enough either to refute or
to substantiate the charges of aggression.
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268
profitable.
Provisional Measures
have been made and supervised in several ways. When the League
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269
Secretariat
Union and the United States government was used by the 1929
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270
do so.
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271
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272
commissions.
Expenses
I k
Suzanne Bastid, op. clt., p. 20.
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273
15
by League commissions. ^ In the United Nations the expenses of
the commissions, their staffs, and the travel and sub sistence of
investigation.
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18
Assembly In 1946. In the same year the General Assembly
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facts and clear the path for peaceful settlement. Nearly every
the investigative phase of the work has usually provided the basis
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21 Ibid., p. 739.
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CHAPTER XI
COMMISSIONS IN OPERATION
Sources of Information
decide upon the sources from which they will seek and receive
278
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time has been lost when witnesses have been allowed to read
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2
jlaa&d;' in the hands of the commission. Reports of the in
timidation or disappearance of witnesses have also reached
2
In the Palestine inquiry, the commission started by per
mitting witnesses to read their prepared statements; at a later
stage when it tried to dissuade a witness from reading it, the
witness insisted on equal treatment and was finally granted his
wish (United Nations Doc. A/AC. 18/SC.6/6 / l 9 ^ tp. 30).
In the investigation of the Hungarian revolution, the
United Nations commissions held the first three hearings in
public and then decided to hold closed sessions because most
of the witnesses feared retaliation against families and friends
in Hungary.
2i
This commission decided that during public hearings
interested governments might be represented by counsel and put
questions to witnesses through the chairman of the commission.
5 The procedures followed by certain United Nations com
missions in selecting and hearing witnesses are presented in
Appendix IV of this work.
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282
two before and one after World War I, have visited the spot.
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284
of implicated projects.
examine.
Rules of Procedure
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285
rules.
needs, depends to a large degree on its size and the scope of the
agents around the same table to study together the two disputes
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286
although not always, felt the need for more procedural rules
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point, it was necessary to refer the matter of procedure to
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288
this kind of help may be made available without unduly limit ing
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289
use them (the Greek frontiers commission did not), the pro
Length of Investigations
years, the different inquiries have ranged from less than two
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290
12
Assembly session. The commissions of the Organization of
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291
14
Investigations has been a serious fault. Commissions which
interim reports.
14
The Lytton commission of the League of Nations re
ceived some criticism for this reason. Besides delays In its
initial departure for the Far East, the length of its in
vestigation was increased because of the distance and the
transportation available at that date.
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292
Paraguayan commission).
Publicity
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• 293
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294
16
contrary. No need has been felt, however, to keep the
find
ings from investigative activities secret.
vicinity of the crash. Five persons who had not been heard at
this effort.
l6
American Journal of International Law, vol. 56 (1962),
pp. 741-742. 5he resolution would also authorize the com
mission to determine the possible effect on the continuation
of the proceedings resulting from any indiscretion concerning
publicity.
^ United Nations Doc. A/AC.18/SC.6/6, p. 22. In the
United Nations these problems may be handled by the United
Nations Guard.
it-
i
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*
before completing its mission, part of the cause was
tiers dispute:
1Q
The agents participated in eight of the thirty-four
closed sessions of the Pranco-Swiss commission in 1955*
^ United Nations Pub. 19^9.X.3 (19^9)> PP« 11-12.
i
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PI
applying to the courts. The work of all commissions would
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299
ing of witnesses:
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been used by the parent body as a basis for action during the
may arise in knowing what points the parent body will wish to
The parent body should also keep in mind the fact that interim
field.
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302
the General Act of 1928) did not issue any report stating that
tions and the bases for them down in writing, and attached the
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303
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authority should be sought from the parties. The fact that the
* * *
methods that have been used and are now available. Publicity to a
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SELECTED BIBLIOGRAPHY
Documents
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310
. Treaty Series.
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Secondary Works
Books
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315
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Journal de Geneve.
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APPENDIX I
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APPENDIX II
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329
ABPENDIX III
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APPENDIX IV
Selection of Witnesses
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332
Precedence of Witnesses
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333
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