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142

includes specific directions about the composition of sub

committees.

Provisions in the treaties concerning the meeting place of

the commission vary widely. Usually the president is per mitted

to choose the meeting place unless the parties make other a r r a

n g e m e n t s . ^ The Bogota Pact specifies that the Council of

the Organization of American States shall determine the meeting

place. A particular city is at times named. Many treaties allow

the commission to change its seat.

Several commissions of inquiry and conciliation have been

employed in disputes since 1919* Most of the proceedings'were

initiated in accordance with treaties existing before a par

ticular dispute arose, but in two instances the commissions

were constituted by means of special arrangements negotiated at

the time of the controversy. In each case described in the

following paragraphs, the commission's work was partly


fiO
investigatory.DU

^ Some treaties concluded by Poland exclude the terri


tory of the parties. An example is the BelgiRB-Polish treaty of
1928 .
59
The treaties concluded by the Soviet Union alternate
between Moscow and the capital of the other party.
60 These particular cases have been selected because
sufficient material is available to examine their actual
operations.

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143

Bolivian-Paraguayan Commission, 1929

Shortly before the opening of the 1929 Conference of

American States on Conciliation and Arbitration in Washington,

several border incidents took place in the Chaco region, an

area of a long-standing territorial dispute between Bolivia

and Paraguay. A Conference committee arranged for the parties

to submit the dispute to a special commission of inquiry and

conciliation. The commission was directed to establish the

facts relating to the attack by Paraguayan troops on December 5j

1929 at the outpost, Vanguardia, and to submit proposals to

settle the incident. If no agreement were possible, the com

mission was to establish the facts and responsibilities in

the matter.

The commission, composed of one representative each from

the United States, Mexico, Uruguay, Colombia, and Cuba, and

two each from Paraguay and Bolivia, met ten times in Washington

between March and September, 1929. The neutral representa

tives on the commission handled the conciliatory negotiations

from which an agreement concerning the incident evolved. The

commission also succeeded in arranging for and supervising

Proceedings of the Commission of Inquiry and Concilia


tion, Bolivia and Paraguay, March 13, 1929-September 13, 1929.
Minutes of the meetings and relevant documents are included in
this 1210-page publication. Useful also is L. S. Rowe,
"Bolivian-Paraguayan Boundary Dispute," Bulletin of the Pan
American Union, vol. 63 (November 1929)» PP. 10'77-T0$7.

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144

the repatriation of prisoners. Two subcommittees were sent to

the spot and their findings were attached to the records of

the commission. In view of the commission’s success in

conciliating the disputants, no report was prepared. The

substance of the dispute was not settled until some ten years

later.

62
French-Slamese Commission, 1946-1947

By an agreement signed on November 17, 1946 France and

Siam submitted to a commission of conciliation in accordance

with a 1937 treaty the controversy concerning the border

between Siam and Indo-China.^ Border incidents had been

frequent since May 1946 when the French returned to Indo

china after the Japanese occupation. As in the case of the

Dogger Bank commission of inquiry in 1905* the conciliation

was arranged through the good offices of other states, this

time by the United States and Great Britain.

The 1946 accord for conciliation contained one stipulation

concerning the legal bases of the dispute. It stated that the

Convention of Tokyo, forced on France in 1941 concerning the

borders between Indo-China and Siam, was repudiated and the

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 ....

change this prewar status, and the c. rTsics. o,

- examining the ethnic, geographical, and

favor of or against revision. The a v-:!„•s. ..

mats with long experience lr: Asian 'fi^rs •

States (president), Great Britain, fer., sat

in Washington, where it „sed ih»- Ih 1.•„

The commission's report, aiv:s.nc .

treaties in question and In raver : r . .i* - .


quo included a resume of the die; -n .—

the arguments of both parties, a : .: r

Siam would not accept the re comer, a-*.

itself the right to place the mate-', h:

With a subsequent change In the S Ia ne se . -

was declared by the new officials i: :■: .

Belgian-Danish

The permanent commission fcr 1‘ .".a ■ •

lished by treaty in 1927 was call* : *

first time on January 29, 1912. It '*&£

resolve a dispute in which Denmark was \\ a

result of the internment and disco.„iti- ;

cargoes of two Danish merchant shirr, the r

^ Henri Rolin, "Une conciliation ’r* i_ -


r o —j ^ - ^ t e r n a t l o n a l put-1 1 :, 1 .

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145

status quo before the war was re-established. Slam sought to

change this prewar status, and the commission was charged with

examining the ethnic, geographical, and economic arguments in

favor of or against revision. The commission included diplo

mats with long experience in Asian affairs from the United

States (president), Great Britain, Peru, Siam, and France. It

sat in Washington, where it used the Library of Congress.

The commission's report, advising against revision of the

treaties in question and in favor of continuance of the status

quo included a resume of the dispute, conclusions regarding

the arguments of both parties, and made certain recommendations.

Siam would not accept the recommendations and reserved for

itself the right to place the matter before a political body.

With a subsequent change in the Siamese government, the matter

was declared by the new officials to be closed.

64
Belgian-Danish Commission, 1952

The permanent commission for Denmark and Belgium estab

lished by treaty in 1927 was called into operation for the

first time on January 29* 1952. It was asked to attempt to

resolve a dispute in which Denmark was seeking reparations as

a result of the internment and disposition of the crews and

cargoes of two Danish merchant ships, the Gorm and Svava, by

^ Henri Rolin, "Une conciliation belgo-danoise,"


Revue generale de droit international public, vol. 24,
series~3 (1953)7PP. 353-371.

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146

Belgian authorities in 1940.

Composed of nationals from Sweden (president), Belgium,

Denmark, Germany, and Prance, the commission met in Stockholm.

After an examination of the documents submitted by both parties

and an oral examination of the agents, the commission submitted

proposals which were accepted by both parties. Belgium was to

pay certain indemnities to Denmark.

Franco-Swiss Commission, 1954-1955^

Two separate legal disputes were referred on August 20,

1954 by the French and Swiss governments to the permanent com

mission of conciliation established by a 1925 treaty. One

difference concerned the rebate of the costs of wartime in

ternment in Switzerland of a Polish division which fought on

the French frontier. The other arose from a Swiss charge that

French custom officials had violated Swiss sovereignty in the

course of dealing with custom frauds.

The commission, composed of French, Swiss, Spanish,

British, and Belgian nationals, met at the Peace Palace in The

Hague with the Belgian as chairman. Since fifteen years had

lapsed since the beginning of one dispute and eight years for

the other, the commission deemed it unnecessary to go to the

^ f . M. van Asbeck, "La tache et l 1action d'une


commission de conciliation," and "La procedure suivie par la
commission permanente de conciliation franco-suisse,"
Nederlands Ti.idschrlft voor International recht, vol. 3
(January and July 195& ) > PP. 1-9 and 209-219.

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147

area of the disputes or to take up the testimony of witnesses.

Instead, it relied on documents submitted by both parties and

on the oral statements of the agents made in answer to ques

tions. In identical letters of November 18, 1955* the two

governments notified the commission of their acceptance of the

proposed terms.

66
French-Moroccan Commission, 1957-1958

By a special agreement of January 5* 1957.? an ad hoc

commission of Inquiry was set up by France and Morocco to

Investigate the French seizure of the plane carrying Ben Bella,

the Algerian nationalist leader, while en route from Rabat to a

conference at Tunis. Complicated legal issues were involved In

the dispute regarding the nationality of the plane and the

applicability of an international' convention. Com posed of

nationals of France, Morocco, Lebanon, Italy, and Belgium

(president), the commission convened in Geneva on June 26,

1957. A delay had been caused by difficulties in agreeing on a

third neutral commissioner.

Five days after the oral phase of the commission’s work

began, an article appeared in the French newspaper, L ’Express,

on February 20, 1958, setting forth what it claimed to be the

^ Charles Rousseau, "Echec de la procedure d'enqulte et de


conciliation dans 1 ’affaire du reroulement de 1 ’avion transportant
de Rabat a Tunis les chefs nationalistes alg6riens le 22 octobre
1956," Revue gen6rale de droit international public, vol. 29, series
3 (October-November 1958)"* PP. &91-6 9 6 .

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148

view of the commission's president, M. Charles de Vlsscher. The

article attributed to him the view that France had a juridical

right to stop the plane since it and the crew were French.

Meeting on February 28, the commission, which earlier had

agreed not to issue any communique to the press before

concluding its work, decided to adjourn permanently. The

Moroccan commissioner noted that his government had ordered him

home.
*

The Moroccan agent later held a press conference during

which he criticized M. de Visscher and the views attributed to

him in the press. He also complained about the commission's

three to two decision not to include Ben Bella and his men on

the list of witnesses to be heard. Morocco had voted with the

minority. One commentator has charged that irresponsible

journalism in this case gave one of the parties the pretext—

probably awaited, if not sought— to put an unilateral end to

the procedure accepted the year before.

The limited information available concerning the work of

certain other commissions established since 1919 whose work

included investigative activities, may be summarized briefly

as follows:

(l) German-Lithuanian commission--A five member commission

was set up under the terms of a 1928 treaty to resolve a dis

pute arising over the interpretation of a clause of the

^ Charles Rousseau, op. clt., p. 693*

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149

German-Lithuanian Commercial Treaty of 1928 pertaining to the

reciprocal rights of immigration and settlement. Both parties

accepted the proposals submitted by the commission in

September 1931. 68
(2) French-Portugese commission--A commission was set up

on the basis of a 1928 treaty to resolve a trade dispute

involving interpretation of a treaty. The dispute was settled

before the report was made.

(3) Eelgium-Luxembourg commission— The conciliation

commission with M. Max Huber of Switzerland as president, was

established in accordance with a treaty of 1927 to deal with a

case of smuggling. It submitted proposals which were accepted

by both parties (1934); no report was published.7®

(4) Danish-Lithuanian commission— A conciliation commis sion

established under the terms of a 19^5 treaty was directed to

attempt to conciliate a difference over the mode of payment for

works in connection with a railroad. It convened at The Hague on

November 12, 1937. On November 13 it adopted procedural rules and

adjourned to May 19, 1938 while awaiting the

68 Names of commissioners but not nationalities are listed


in A. M. Stuyt, op. cit., p. 448. See also United Nations Doc.
A/AC.18/64 (June 1948), p. 17 and Manley Hudson, Inter national
Tribunals, Past and Future, p. 229.
69 Ibld.J A. M. Stuyt, op. cit., p. 449. .
70 United Nations^Doc. A/AC.18/64 (June 1948), p. 18;
Henri Rolin, Revue generale de droit international public, vol.
24 (1953), p."3557 5. M. StuyE, op. cit., P. 447, and Manley
Hudson, International Tribunals, Past and Future, p. 2 2 9 .

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150

conclusion of the written phase of Its examination. The

commission ended its work on September 30, 1938 with a report


71
stating that the parties had not been conciliated. 1
(5) Italian-Greek commission— Italy and Greece set up a

three-member conciliation commission composed of nationals

from Italy, Greece, and Belgium (president) in 1956 to consider

the matter of reparations for the sinking on August 3, 1940 of

the Greek ship, Roula, off the coast of Crete by an Italian

submarine (Greece was still n e u t r a l ) . The commission met

at The Hague under the auspices of the Permanent Court of

Arbitration, and on March 20, 1956 submitted its recommenda

tions. In October, 1956 both parties informed the president

of the commission that they had accepted the conclusions of

the commission and had come to an agreement on the basis of

them.

* * *

The foregoing survey of developments in bilateral com

missions since 1919 has revealed a number of innovations in

the concept of international inquiry. The most significant

71 I6id.j United Nations Doc. A/AC.18/64 (June 19^8),


p. 1 8 ; A. M. Stuyt, op. cit., p. 446, and Grotius
annuaire International, 1938, p. 305 and 1939, P* 247.
J. P. A. Francois, "Le Palais de la Paix en 1955,"
Nordisk Tijdschrift voor internationaal recht, vol. 3 (January
195b),p. 62j Permanent Court of Arbitration, "Circular Note of
the Secretary-General, March 3, i960," American Journal of
International Law, vol. 5^ (i9 6 0 ), p. 938.

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151

development has teen the addition of conciliatory tasks to the

inquiry work of commissions. This has led to certain changes in

procedure, and it has also created problems which have not yet

been entirely resolved. One of these is to find • a satisfactory

compromise between the need to restrict publicity about the

commission's work in order to give it every chance for success,

and the desirability of building up

a body of information about the work and results of the com

missions to which future commissions and disputants may refer.

Commissions in practice have encountered difficulties which

might have been avoided by knowledge of the work of earlier

agencies. Furthermore, the willingness of states to resort to

the procedure may be affected by their understanding of the

actual operations of earlier commissions. More knowledge of the

activities of commissions may, too, help to provide answers to

such questions as whether investigation should be a manda tory

or permissory step prior to conciliation.

The inquiry and conciliation commissions which have

handled disputes since 1919 have been reasonably successful.

Of the ten commissions -whose results are known, only three

have been unsuccessful. The work of six commissions led to an

agreement between the parties, and one other dispute was

settled before the report was made.

Despite the failure to use bilateral commissions ex

tensively, their future is not without promise. For one

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152

thing, there has been no widespread movement against them.

Indeed, it has been suggested that they offer a practical

approach to at least some of the problems and tensions charac

teristic of contemporary international r e l a t i o n s . T h e

n , too, there is still no reason to question the observation

made in 1927 by Professor Schdcking who saw in the large number

of conciliation treaties the suggestion that states want another

recourse than to the League Council (or the United Nations) for

the solution of their differences.^^ Using commissions under

bilateral treaties of their own making, states retain more

direction over the procedure of inquiry and conciliation than

they c.ould in an. international organization like the League of

Nations or the United Nations.

Henri Rolin, European Yearbook, vol. 3 (1957)> P. 3.

Walther Schftcking, "Le developpement du^acte de la


Soci^te des Nations," Recuell des cours, l ’Academle de droit
international de la Haye, vol.' 20 (1927-v), p. 413.

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CHAPTER VII

INQUIRY IN THE UNITED NATIONS

Commissions charged with investigatory functions have

frequently been used by the United Nations in treating

international differences. Viewed in the large, inquiry

practices within the United Nations represent both an accept

ance of and an enlargement upon practices employed by the

League of Nations. In the actual operations of inquiry the

United Nations has encountered considerable opposition from

one or more of the implicated states, in contrast to the

experience of the League, where disputants gave their consent

to the inquiry in every instance, and commissions rarely were

denied access to territories they sought to visit.

Unlike the League's broad authority in the Covenant

to inquire and report, the United Nations' power of investi

gation in the Charter appears rather limited. The only Charter

reference to such authority is in Article 3^ where the

Security Council is empowered to make investigations for the

limited purpose of determining the seriousness of a dispute or

situation. Specifically, the Security Council may "investigate

any dispute, or any situation which might lead to

international friction or give rise to a dispute, in order to

determine whether the continuance of the dispute or

153

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154

situation is likely to endanger the maintenance of inter

national peace and security. ' 1 At San Francisco a suggestion

that the Security Council be given explicit authority to

Investigate a dispute for the broad and general purpose of

securing a peaceful solution was not accepted. 1 Nevertheless,

in view of the need felt by any agency of settlement for

reliable facts in handling a dispute if it is to make a well-

considered recommendation, a general power to investigate has

in practice been considered to be inherent in the Security

Council and the General Assembly's powers to discuss and to

recommend. 2

In practice, the Security Council has used as a basis for

initiating inquiries both Article 34 and what are believed to

be its inherent powers, but it has not always made clear

which was being used in a given instance. The investigatory

authority in Article 34 is open to several interpretations, as

1 Documents on the United Nations Conference on Inter


national OrganlzaTTIon, San Francisco, vol. 12, p. ¥5.
2 Among many discussions of the investigative authority of
the Security Council and/or the General Assembly, the following
may be mentioned: Leland M. Goodrich and Edvard Hambro, The
Charter of the United Nations (1949)* PP. 245 -248 and 221-222;
Leland M. Goodrich and A. Simons, The United Nations and the
Maintenance of International Peace and Security (1953)* PP. 17^-
182; fcrnest 177 Kerley, op. cit., ppT"892-918j Hans Kelsen, op.
cit., espec. pp. 387-431 and 437-444; Paul Hasluck, Workshop of"
Security (1948), pp. 42-45* E. Jimenez, Voting and the Handling
of Disputes in the Security Council (1950J, pp .“75-89, and
Noman Bentwich and Andrew Martin* A Commentary of the Charter of
the United Nations (1950)*
pp. 79-81.

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155

the practice of the Security Council has demonstrated. The

more literal construction of the Article has been explained

as follows:

.. ./It/ grants an investigatory power to be used


only for the purpose of ascertaining facts necessary
for a determination of competence. This power could
not be used to ascertain information not necessary
for that purpose, nor could it be used at all, once a
determination of competence has been made by the
Council.3
In other words, the Council at this stage is not entitled to
4
inquire into the substance of a controversy.
This limiting interpretation probably was the official

position of the United States at the time of the drafting of

the Charter. During the Senate hearings on the Charter, a

State Department official noted that the Article empowers the

Security Council to make investigations "for a definite

purpose— for the purpose of determining whether or not the

continuance of a dispute or situation is likely to endanger

i5
the maintenance of international peace and security. While
many statements in Security Council debates uphold this

interpretation, it has not been the majority view. This is

understandable in view of the consequences that could result

3 Ernest Kerley, op. cit., p. 898 .

^ N. Bentwich and A. Martin, op. cit., p. 80,

5 U.S., Congress, Senate Committee on Foreign Relations,


The Charter of the United Nations (revised); includes text of
ffiie Report to tEe President on the Results of the San Francisco
Conference by Edward R. £tettinlus Jr., Chairman of the U.S.
Delegation, Hearings, 79th Cong., 1st Sess. (194577 P« 2 7 1 .

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156

from a literal interpretation. For one thing, the Security

Council might investigate only when doubt exists as to whether


6
the prolonging of a difference would endanger peace. And, it
might be required to end the Investigation immediately after a

determination had been made as to whether a serious dispute did


7
or did not exist. The abrupt removal of a commission from the
area of a serious dispute could produce sterile consequences if
8
it had been exercising a stabilizing effect.
In practice, Article 34 has been interpreted liberally.

One Illustration of this is the case involving Greek frontiers

incidents where the commission was "to ascertain the facts

relating to the alleged border violations" and to "elucidate


9
the causes and nature" of the violations and disturbances.
This approach was supported by M. Parodi of France with the

^ E. Jimenez, op. cit., p. 8 7 . The Syrian delegate on the


Security Council at one time noted that in such situations an
investigation would be obligatory (United Nations, Security
Council. Official Records, 3rd yr., No. 79* 312th meeting, PP.
2 -3 ).
f Ernest Kerley, op. cit., p. 899- For summary of dis
cussions on this point in theearly years of the United Nations
see United Nations, Repertoire of the Practice of the Security
Council, 1946-1951 (1954) and Supplement, 1952^1955 (1957)'.

® Paul Hasluck, op. cit., p. 107; United Nations, Security


Council, Official Records, 2nd yr., No. 6l, p. 1426.
One solution to this legal entanglement would be for the
Security Council, acting under general powers, to extend or
redefine the task of a commission already established. How
ever, voting procedures and political considerations would
make this approach difficult.
9 ibid., 1st yr., 2nd series, No. 28, p. 700.

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157

argument that if the Security Council "has the power to

initiate an investigation for the purpose of obtaining informa

tion or ascertaining whether a situation endangering peace

exists, it is reasonable to suppose that it can continue this

investigation when the situation itself seems likely to con

tinue."1^ Two commentators on the Charter have presented

this position as the prevailing view in the Council:

...Acting under Article 34> the Security Council


considers itself empowered, apart from the political
exigencies of a particular case, to conduct a broad
investigation of the facts of any dispute or situation
brought before it, not only with a view to determining
the seriousness of the dispute or situation, but also
with a view to establishing the factual bases for its
recommendations... , H
Among the Charter provisions, aside from Article 34,

frequently cited in United Nations discussions and by com

mentators as implying a broad investigatory power are the

following: Article 24 giving the Security Council the primary

responsibility for the maintenance of peace and security;

Article.39 authorizing the Security Council to determine the

existence of any threat to the peace and to make recommenda

tions accordingly; Article 30 enabling the Security Council

to decide upon its own rules of procedure, and Article 29

giving it the power to establish subsidiary organs.

^ United Nations, Security Council, Official Records,


2nd yr., No. 6l, p. 1926.
Leland Goodrich and Edvard Hambro, op. cit., p. 247.

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158

When the Security Council establishes a commission of

Inquiry, It is important to know whether it is using Article

34 or some other basis for its action, because proposals under

Article 34 are subject to the veto. The ruling that a vote on

a proposal to conduct an Investigation under Article 34 be

treated as substantive and therefore require the con currence

of the permanent members of the Security Council was the

position taken by the Sponsoring Governments and France at San

Francisco and it was made a part of the Four Powers Statement.

The reasoning behind this ruling was the famous "chain of

events" theory that initiating an investigation could be one

in a series of decisions that might lead to Security Council

enforcement action.^ The availability of the veto in

discussions taken under Article 34 may explain the position

taken by the Soviet Union that investigations by

\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

the United Nations should be undertaken only under that


Article.
The practice of the Security Council when Article 29
has been used as the basis for setting up a commission of
Inquiry has not been consistent. When It was considering a

proposal to Investigate the coup d*etat In Czechoslovakia In

1948, the matter was considered to be substantive.


However,

ten years later, when the Security Council dispatched a com


mission set up under Article 29 to Laos, the vote was treated

procedural for which the concurring vote of any seven members

Is sufficient.Writers are not In accord about this aspect


of Article 2 9 . However, the action In the Laotian case may
at least Indicate that the Council Intends to eliminate the

“double vote" In regard to establishing subsidiary organs

*3 it should be noted that the work of this particular


commission according to its terms of reference was confined
strictly to fact-finding without authority to make any
recommendations. The commission did not consider that It was
authorized to concern Itself with the substance of the issues
Involved or to take steps to Influence the course of events to
which Laos referred (Report of the Security Council to the
General Assembly, 16 July"1959-15 ^Tuly i9 6 0 , General Sssem^ly,
Official Records, 15tn sees., Supp. 2 /A/44947, P. 3).
^ Compare, for example, the following: E. Jimenez (op.
cit., pp. 7 5 -7 6 ) who maintains that establishing a sub
sidiary organ and entrusting to It certain functions such as
fact-finding is of a procedural character since Article 29
appears In Chapter V under the heading, "Procedure'” and Leo
Gross, "The Question of Laos and the Double Veto In the
Security Council," American Journal of International Law,
vol. 54 (i9 6 0 ), pp. 1 3 0, who states that ‘"‘Investigation is
surely not a procedural matter solely because, it is a step,
albeit an essential one, In the Councilfs procedure or
process of solving an issue brought before It.

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160

1 C
under Article 29. This would he In accordance with a
General Assembly recommendation that certain decisions with

regard to fact-finding activities not under Article 34 be


deemed procedural.1^ The authority of the General
Assembly

to establish commissions of Inquiry has not often been ques

tioned In practice. This Is partly because the Issue


originally arose at the first special session In 1947 on the

Palestine question where members were generally In agreement


17
that an Investigation was both possible and desirable. 1
When
the Interim Committee was established In 1948, It was success

fully argued that the General Assembly's power to make


recommendations necessarily Included the authority to engage

in inquiries that were necessary for the formulation of


l8
appropriate recommendations. "Surely It would be nonsense,"

argued the delegate from Great Britain, "if the Assembly were

^ Ernest Kerley, op. cit., p. 916.


The text of the resolution appears In United Nations,
General Assembly, Official Records, 3rd sess.. Resolutions (1 9
4 9), pp. 7 -1 0 . In adopting this resolution, the General
Assembly, however, rejected a suggestion of the Interim Com
mittee that Investigation of any dispute or situation to
determine whether Its continuance might endanger peace be
procedural (Ibid., 3rd sess., Supp. 10 /T948 / /K/57&7, p. 10).
^ L. Goodrich and A. Simons, op. cit., p. 174.
For a summary of the discussions see "The Interim
Committee of the General Assembly 'The Little Assembly':
A Legislative History," United States, Department of
State, Documents and State Papers, vol. 1 (June 1948),
pp. 159-190; also, UnitedNations Doc.A/C.1/SR §4-96.
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161

empowered to consider disputes (Article 35)* to discuss


situations (Article 11-2), and to make recommendations, with

out being able to verify Its premises."1^


The authority to make Investigations In connection with

International disputes also appears to be possessed by the

Secretary-General of the United Nations. During the dis

cussion of the Greek frontiers dispute, Secretary-General Lie

observed that, according to his Interpretation of his office,

he might make Inquiries In order to determine whether or not

he should consider bringing a problem to the attention of the


po
Security Council under Article 99* While it is doubtful
that the drafters of the Charter Intended to give investigative

powers to the Secretary-General, It Is not unreasonable to


find Implied authority for such a function today, especially

In view of the expansion of the role of his office in recent

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

Both the Security Council and the General Assembly,


recognizing their Inability to Investigate on their own, have

done so through commissions. As In the League, the preference


has been for ad hoc commissions. From time to time, however,

a commission already established to handle another aspect of


a problem under consideration has been Instructed to carry out

Investigations. For Inquiries on the spot In South-West


Africa and for the Investigation into the death of an African

political leader In Ruanda-Urundl, the Assembly each time


employed a commission which was already In the area.

Occasional proposals to establish permanent commissions


of inquiry and conciliation have not received any more support
op
in the United Nations than they did in the League. In
this
connection, two subsidiary bodies of the General Assembly should

be mentioned. One of these, the Peace Observation Commission,


was set up in 1950 so that an organ would be available "which

could observe and report on the situation In any area where

there exists international tension...."2^ As mentioned

22 one of the proposals submitted to the Interim Com


mittee during its study of methods of peaceful settlement
was the Lebanese draft which would have set up special nine-
member Inquiry and conciliations commissions (United Nations
Doc. A/AC.1 8 /1 5 /I9487). For discussion on this proposal see
James N. Hyde, op. cit., pp. 550-551*
Suggestions for such permanent bodies were also rejected
during the drafting of the Charter. See, for example, Docu
ments of the United Nations Conference on International
Organization, vol. 9, PP. lt>2, lbttj vol. 12, p. 125.
2^ united Nations, General Assembly, Official
Records, 5th sess., Supp. 20 (A/1775)* PP* 10-12.

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163

earlier, this agency has not been given investigatory functions,

but in view of the close relationship between observation and

investigation, it is conceivable that the Peace Observation

Commission could in practice become a standby investigating

body.

The other subsidiary organ to be noted is the Interim

Committee of the General Assembly. To enable it to fulfill

its various functions, it was given— after lengthy debate—

the power to conduct investigations and to appoint commissions


pli
of inquiry. ^ The Interim Committee's terms of reference in
cluded the following restrictions: (l) The investigations must

remain within the scope of the duties of the Interim Committee;

(2) investigations outside the United Nations headquarters

require the consent of states where they take place, and (3)

a decision to conduct investigations requires a two-thirds

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

The range of subjects which may be handled by United

Nations commit ions of Inquiry Is wide. The major


limitation

is in Article 2, Paragraph 7 of the Charter which forbids the

United Nations "to Intervene In matters which are essentially

within the domestic Jurisdiction of any state." It has


fre
quently been the subject of bitter debate In both the Security

Council and Qeneral Assembly in relation to the establishment


25
of a commission of inquiry. As in the practice of the
League, objections to inquiry based on domestic jurisdiction,

have been outvoted unless supported in the Security Council

by a permanent member. It has been argued successfully


that

because certain situations within the territories of members

have repercussions which intensify world tensions or threaten

the peaceful relations of states, they become legitimate sub

jects for United Nations action.^ The issue has been


raised

frequently in connection with proposals for inquiries into


alleged violations of Charter obligations concerning human

rights. The Union of South Africa and Portugal vigorously


opposed inquiries of matters they felt were exclusively

25 a summary of practice in the early years of the


United Nations appears in Repertoire of Practice of the
Security Council, 1946-1951, PP. 453-477.
Pfi
The fear expressed by the Norwegian delegate at the San
Francisco Conference that Article 2, Paragraph 7, would "severely
hinder the Security Council when tendering its good offices for
the investigation of a dispute..." obviously has not proved to be
true (Documents of the United Nations Con ference on
International Organlza'Hbn, vol. 6, pp. 4'36, 43i2).
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165

domestic; their objections, however, were overruled.


Under certain conditions, members of the United Nations

are obligated to cooperate with and permit an investigation

on their territories even though they may not approve the


action. This is true when the Security Council decides to
investigate according to the terms of Article 3 4 . This
action is, according to the majority view, a Security Council

decision of the type which members must carry out in accord

ance with Article 2 5 . The Communist bloc holds a minority

view to the effect that the decision to investigate


28
is in reality only a recommendation to states.
In order to facilitate the conduct of an inquiry, both
the Security Council and General Assembly usually request the

parties and other members to cooperate with the commission.

Members have not always done this, however, and in several


instances their opposition has prevented the functioning of a

commission. When the Assembly voted to investigate charges


of bacteriological warfare, the establishment of the commission

Ernest Kerley, op. cit., pp. 894-897*


28 There is some suggestion in the history of the draft
ing of the Charter, however, that the Soviet view was shared by
others. This was brought out during theSenate hearings on the
Charter (Hearings on the Charter of the United Nations...
...etc., pp. 319 -321 ). However, a specific proposal
advanced at San Francisco in regard to the present Article 25
was re jected so as not to limit the obligation it imposed to
the provisions in Chapters 6 and 7 of the Charter in which
Article 34 falls (Documents of the United Nations Conference
on Inter national Organization, vol. 11, pp. 393-3957^

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166

was made dependent on "an Indication from all governments and

authorities concerned of their acceptance of the Investiga

tion."2^ The commission set up to Inquire whether free elec


tions in Germany were possible was forced to end Its work
because Its functioning was dependent on the conclusion of
satisfactory arrangements with all governments and authorities

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

debated. This has always been true when a question has in


volved Cold War Issues. At such times the peculiar situation

has arisen that an Inquiry has been advocated by a party


against whom chargeB were made and rejected by those making

the accusations. In the Security Council, proposed Inquiries

United Nations, General Assembly, Official Records.


7th sess., Supp. 20A (A/2361/Add.l) (1953), P. 4.
Report of the Commission to Investigate Conditions for
Free Elections In Germany, United~~5ations Doc. A/2l22 (19527,
p. 13.
The refusal of members to cooperate with Inquiry commis
sions has often been criticized. On this subject the Commis
sion to Study the Organization of Peace has observed that It
"seems not only logical but quite probable that there will
soon be established the principle that any country which
refuses to permit Investigations within Its own territories
may be Judged by the United Nations as having failed to live
up to its Charter obligations." The commission also maintains
that members are obligated to cooperate with Inquiries by
virtue of Articles 104 and 105 of the Charter (Commission to
Study the Organization of Peace, op. cit., p. ol).

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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

In the United Nations, an estimate on the financial outlay


31
involved is made available by the Secretary-General. The

large expenses involved In these undertakings Is shown In the


estimate of $78,000 necessary for the Investigation into
32
Dag Hammarskold*s death with a five-member commission.
The tasks of United Nations commissions usually have not

been strictly confined to fact-finding. Even when the


stated

purpose of their mission was collecting Information, the com

missions frequently have been instructed to present findings


and conclusions, and at times, recommendations.33 As a
result,

the majority of United Nations inquiry commissions, like


those in the League, have presented recommendations in their

reports. The commissions in the Laos and Corfu Channel ques


tions are exceptions to this general practice. In a few

instances, commissions have been given, in addition to in


vestigatory tasks, functions of mediation and truce supervision.

There have also been a number of commissions established

31 The General Assembly's financial regulations


provide that no resolution involving expenditures should be
approved by any body unless it has an estimate of the costs
(Yearbook of the United Nations, 1947-48, pp. 167-1 6 9).
3s United Nations Doc. A/4933 (October 20, 1961). The
expenses of the subcommittee on Angola in 1961 which spent
two weeks away from headquarters amounted to $21,000
(United Nations Doc. A/5085/Rev. /January 26, 1 9 627).
33 l . Goodrich and A. Simons, op. clt., pp. 190-191.
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168

by the General Assembly or the Security Council whose primary

task has been good offices, mediation, or truce or election

supervision. In many instances, these agencies found that

investigatory activities were required for them to be able to

fulfill their primary task. Two such commissions were the

General Assembly’s Special Committee on the Ealkans and the

United Nations Temporary Commission on Korea. The former was

sent to the Balkans, as a result of an earlier investigation by

a Security Council commission, to observe the compliance by

Albania, Bulgaria, Greece, and Yugoslavia with the Assembly’s


-ah
recommendations and to assist in their Implementation.J Many

procedures used by the committee while it observed the nature

of relations along the Greek borders were actually investi

gatory. 35 The Korean commission’s function was "to observe

that the Korean representatives are in fact duly elected by the

Korean people...."36 In order to do this, the commission

needed to engage in investigative activities; it held hearings,

evaluated written documents, and made inquiries into incidents

which occurred in connection with the election registration.37

3^ United Nations, Organization and Procedure of United


Nations Commissions: United Nations Special Committee on The
Balkans, Pub. 1949.X.l, p. 19*
35 ibid., pp. 19-2 0 .

36 United Nations, Organization and Procedure of United


Nations Commissions: The United Nations Temporary Commission
on Korea", Pub. 1949.X.9j p. 17•
37 ibid.

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169

The composition of the United Nations commissions and


the method of selection of the membership has v a r i e d .3®
Most

commissions with Investigative powers have been similar In

one respect: they have been composed of member states whose


governments have appointed the Individuals to represent t h e m . 39

This contrasts with the League commissions whose members were


40
appointed In their Individual capacities. The prevailing

attitude In the United Nations has been that governmental


delegates are better able to speak with authority and to make

recommendations likely to win consent, especially In sensitive

political fields.
Whatever Its merits, the practice of selecting member
governments to compose commissions has created some problems

for United Nations commissions of Inquiry. During the investi

gation of the Kashmir dispute, for Instance, a change In the

33 Details of the composition of commissions In the early


years of the United Nations are described In the report of an
Interim Committee Subcommittee In Study of the Organization and
ODeratlon of United Nations Commissions .“United Nations i>oc.
k/kC.lH/^cTE/ii'(TP9L ppTiI-13.
39 por the Investigation Into Dag Hammarskjold^s death,
however, the resolution called for a commission of "five
eminent persons.” The Commission on the Racial Question In
South West Africa was composed of Individuals. The members
of the Conciliation Commission for the Congo were named by
their governments but were acting InIndividual capacities.
Suggestions made at times by Individual members
of the United Nations, Including the United States, to
choose members on the basis of their competence and
Impartiality, have not been accepted by the majority.

I
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Czech government resulted In a new representative of that state

on the commission. Regardless of the efficiency of a

commission's staff In distributing and compiling documents for

the commissioners' use, changes In membership could hardly add

either to the merits or to the acceptability of a report.

The procedure for choosing the states to be represented

on the commissions has also varied. At times specific states

are mentioned In the resolution. On occasions, only the number

of commissioners Is specified and the president of the General

Assembly or Security Council Is directed to appoint the

specific members. In the Kashmir dispute, each party named one

member. The most complicated procedure to be used was in the

selection of the members of the commission to In vestigate the

death of Nr. Patrice Lumumba, the Congo political leader. ®ie

Security Council's resolution called only for an Impartial

investigation in the matter. The Secretary General therefore

asked the Advisory Committee on the Congo and the president of

the International Court of Justice for sug gestions.^ 1 Later,

the General Assembly specified the member

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

One new problem encountered by the United Nations has


been the objection by the political leaders of a state where

an Inquiry Is to be made to certain members of the commission.

Such an objection was raised against certain members of the


Conciliation Commission for the Congo, but the request for

changes were denied.


Unlike the Covenant which outlined certain procedures
for the handling of a report, the Charter gives no direction

on this matter. Although the procedure has varied both In the


General Assembly and In the Security Council, certain practices

have been followed with some consistency. Usually the


chairman

or rapporteur of the commission attends the meeting at which

the report Is presented, whether In the Security Council or

the General Assembly (or one of Its committees). In


the

Security Council, the parties directly concerned are Invited

to be present.^ The procedure of the League In adopting the


rceports and recommendations of the commissions has not been

followed by the United Nations. Instead, after a report is

presented, a draft resolution based on the majority recommenda


tions is usually Introduced by a member of the commission.
If

J In the India-Pakistan dispute, a question arose as


to when the parties should come— before or after the
presentation of the report. It was decided that the report
would be heard first and then the representatives of the
parties would be In vited. In the Greek frontiers case all
of the commission members appeared before the Council. By
contrast, the United Nations Special Committee on
Palestine considered Its task completed the day the report
was signed and went out of existence.
5
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172

there has been a minority report, a member of the minority


introduces a resolution embodying his views and both are
subsequently debated. Usually, a resolution containing some
of the recommendations of the majority report of the
commis sion has been subsequently accepted. When action in
the Security Council has been blocked by a veto, the matter
has occasionally been referred to the General Assembly
where it has acted on the basis of the report.
The Security Council and General Assembly have used at

least seventeen commissions where one of the primary tasks was

inquiry. Fifteen of these have been able to complete their work

and prepare a report. The following paragraphs concern the

establishment and work of the commissions appointed by the

Security Council, all of which finished their work.

jij,
Spanish Question

During the Security Council's first year of operation,

Poland charged the Franco regime in Spain with endangering

international peace and security. After a lengthy debate, the

Council adopted an Australian proposal on April 29, 1946

establishing a subcommittee under Article 29 "to make further

studies in order to determine whether the situation in Spain


------- 2pf--------------
See Report of the Subcommittee on the Spanish
Question. United Nations Docs. S/75 and"l§/?6 in
Security Council, Official Records. 1st year, 1st
series, Spec. Supp. for June 1^46, pp. 1-82.

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173

has led to International friction and does endanger Inter

national peace and security, and If It so finds then to

determine what practical measures the United Nations may

take.... The group was directed to "examine the statements

made before the Security Council concerning Spain, to receive

further statements and documents, and to conduct such Inquiries

as It may deem necessary...."^ On suggestion of the Security

Council president, the subcommittee was composed of Australia

(whose representative was elected chairman), Brazil, China,

France, and Poland. It met at the United Nations headquarters

using as Its primary source of Information replies from

govern ments to questionnaires It had sent.

In a unanimous report of June 1, 19^6 the subcommittee

found that the continuation of the situation might endanger

peace, and recommended that unless the Franco regime was with

drawn and certain conditions for political freedom fulfilled,

the General Assembly should recommend that members sever

diplomatic relations. When action In the Security Council was

blocked, the General Assembly on December 12, 1946 adopted a

resolution based on the report. A few states took steps In the

direction recommended by the Assembly resolution.^

^ 1st yr., 1st series, No. 2, 1946, p. 244.


46 Ibid.
^ Yearbook of the United Nations, 1947-48, pp. 48-49.

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174

Greek Frontiers Incidents**®

On December 3* 1946 Greece charged before the Security

Council that its neighbors, Albania, Yugoslavia, and Bulgaria,

were supporting guerrilla warfare in northern Greece. On

December 19 a proposal of the United States was adopted

unanimously establishing a commission of investigation under

Article 34 "to ascertain the facts relating to the alleged

border violations along the Greek frontiers...."^ The com

mission was given authority to investigate where necessary


in Greece, Albania, Bulgaria, and Yugoslavia and to make
proposals to avert a repetition of the disturbances.
Under the terms of the resolution the commission was com

posed of a representative of each of the 1947 Security Council

members, and the chairmanship rotated. After an informal meeting

on January 3, 1947 at the United Nations headquarters, the group

met again in Athens on January 30 and remained in the field

until April. Seven investigating teams were sent on trips

through the four countries while the commission gathered other

oral and written material. Before departing for Geneva to

prepare its report, the commission named a

**® United Nations, Organization and Procedure of United


Nations Cq m ^salons: theHftnied Nations Commission of tnyesti-
ation Concerning the Greek Frontiers Incidents, PuST 1949.X.3

fX9W.**9 ihe text of the resolution appears in United


Nations Doc. S/339, Security Council, Official
Records, 1st yr., 1st series, pp. 700-701.

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175

subsidiary organ to remain In the field. This body was


en

titled to Investigate incidents brought to its attention after

a particular date, but not to hear evidence which was or could

have been available to the main committee.5°


The report of the commission of inquiry was submitted

to the Security Council on June 27, 1947. The


majority up
held substantially the Greek claims, and recommended among
other things, the establishment of a new commission to operate

in the area. A minority of two considered the charges un

founded. When the Security Council found Itself unable to


act, the General Assembly took up the matter and on October 21,

1947 set up the United Nations Special Committee on the


Balkans.

Corfu Channel^

In January, 1947, Great Britain submitted its dispute with

Albania over an incident on October 22, 1946 in the Corfu


Channel in which two British warships ran into mines and were

damaged. Albania maintained that it had not laid the mines,

5° The work of this subsidiary group is examined in


the following: United Nations, Organization and Practice
of United Nations Commissions: The Subsidiary tiroup ot
the~frnlted Nations Commission of Investigation Concerning
Greek frontier Incidents. Pub. 19437%.4 11945).
51 Report of the Subcommittee, United Nations
Doc. S/300 in Security Council, Official Records.
2nd yr., Supp. No. 10, PP. 77-109.
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176

and contended that the British warships had subsequently

violated Albanian sovereignty by sweeping Its territorial

waters for other mines. On *the suggestion of Australia, a

subcommittee of three was established on February 27 "to

examine all the available evidence...and to make a report...on

the facts of the case as disclosed by such evidence."^2

Australia, Poland, and Colombia were proposed by the presi dent

of the Security Council and approved by the Council to compose

the subcommittee. Colombia was elected chairman.

The subcommittee held ten meetings which included

interrogations of representatives of Great Britain, Albania,

and Greece. Hie report, which did not deal with the sub

stance of the dispute, suggested that the first step for the

Security Council should be to decide whether or not it con

sidered Itself to be able to determine whether the minefield

existed and whether it was laid by Albania or with its

connivance. The Security Council apparently did not con sider

itself able to determine these facts because it recom mended

that the two governments refer the dispute to the

International Court of Justice which they eventually did.-'*'

^ United Nations, Official Records. 2nd


yr., 111th meeting, pp. 36^-365.
53 The International Court of Justice sent a
commission of inquiry to the spot to gather information.

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177

On September 4, 1959 the Royal Government of Laos

charged the Democratic Republic of Viet-Nam with

aggression. On September 7 the Security Council established

by a vote of ten to one (a permanent member) a subcommittee

composed of Argentina, Italy, Japan, and Tunisia "to

examine the state ments made before the Security Council

concerning Laos, to receive further statements and

documents and to conduct such Inquiries as It may determine

necessary and to report...as soon as possible."^

After several meetings In New York beginning on September

S, the subcommittee left on September 12 for Laos where It con

fined Its Investigatory work to examining documents and wit

nesses offered by a liaison committee set up by the Laotian

government. Prisoners and wounded men were examined without the

presence of Laotian officials, and working teams were

taken to specific spots on the frontier where refugees were

Interviewed. Leaving two representatives In Laos, the sub

committee returned on October 13 to New York and submitted Its

report on November 3. It concluded that the Information

submitted to it did not "clearly establish whether there were

crossings of the frontier by regular troops of the DRVN," and

^ Report of the Security Council Subcommittee,


United Nations Doc. S/^FTNovember 5* 1959).
55 The text of the resolution appears in
United Nations Doc. S/4216.

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178

stated that the actions were generally of a "guerilla charac

ter" although "certain of these hostile operations must have

had a centralized coordination."5 It noted that forty


out
of forty-one witnesses, substantiating the Laotian documenta

tion, stated that the hostile elements had received support

from the Vietnamese. The report noted that no information


or
witnesses were offered to the committee from the opposing side.

No action was taken on the report by the Security Council.

K7
India-Pakistan: Kashmir*"
In January, 1948 the Security Council was seized of the

dispute between India and Pakistan over the disposition of

Jammu and Kashmir. India charged that Pakistan was aiding


the invaders of this territory. Pakistan denied the
accusa
tion and at the same time charged that India was responsible

for the mass destruction of Moslems and failure to implement

agreements between the two states. On January 20 the


Council

set up a commission invested "with a dual function" of

56 United Nations Doc. S/4236 (November 5, 1959), p. 31*

57 United Nations documents containing the reports of the


commission are as follows: first interim, S/1100 (Security
Council, ftfflcial Records. 3rd yr., Supp. for Nov. 1948,
pp. 17-144; Becond Interim, S/1196 (January 10, 1949); third
report, Doc. S/l430/Rev.l (Security Council, Official Records.
4th yr., Spec. Supp. 7 ). See also the account of the first
Czech representative on the commission, Josef Korbel (Danger in
Kashmir /T9527), and United Nations, Organization and Procedure
or United Nations Commissions: TheUnlted Rations CommisslonTor
India and Pakistan, Pub. 195&7x.l(l9507T
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179

Investigation and mediation. It was Nto investigate the


facts

pursuant to Article 34..." and to submit "its conclusions and

proposals" regularly to the Security Council. The


commission^
mediatory efforts were to be directed toward the restoration

of peace and order and the holding of a plebiscite (The


territory in question had acceded to India during the par

titioning despite its overwhelming Moslem population.)^


Under the terms of the resolution, India and Pakistan
each chose one member of the commission, Czechoslovakia and

Argentina, respectively. These two members were to


select

the third. In a subsequent resolution, the Security Council


added two more states, Belgium and Colombia, and provided that

if the membership were not completed within ten days, the


president of the Security Council would name the fifth member

(Prance was subsequently named by this procedure).

The basic resolution contained more provisions on procedure

than most resolutions of the Security Council which have


established investigating commissions. It authorized
the
commission to take decisions by majority vote, to determine
its own procedure, and to establish necessary observers.
The

58 Two other resolutions pertaining to the commission^


functions were adopted before it began work. On April 21,
1948 the commission was instructed to proceed at once to the
subcontinent and "place its good offices and mediation at the
disposal" of both governments (United Nations Doc. S/654). On
June 3, 1948 the Security Council directed the commission to
deal with the Kashmir question first and then to study other
matters raised by Pakistan (United Nations Doc. S/819).
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180

commission was authorized to allocate among Its members,

alternates, assistants, and personnel the work to be per-


formed, and It enabled the members to travel together or
separately. The governments of India and Pakistan were In
vited to name representatives to be attached to the commission.

After preliminary meetings In Geneva beginning June 1^,


1948, the commission left on the first of two trips to the

subcontinent. Between July 5 and September 21 It secured a

cease-fire agreement and conducted Investigations.


Attempts
to mingle with the local population in Kashmir were not

59
especially successful. Two reports were submitted to the

Security Council embodying the results of the commission’s


first visit. In January, 1949# the commission was ordered to

return to the subcontinent to Implement the terms of the


cease-fire and to prepare for a plebiscite. Most of the
work
of an investigatory nature during the second visit was done
by a subcommittee although the commission as a whole did some

traveling for the purpose.


In presenting the commission’s third report of December 17#

1949, the chairman pointed out to the Security Council that

the task of investigating the facts had been completed.


On

^ The local population responded to these moves of the


commission with anxiety. Individual members of the commission
were approached secretly. At one point, a man broke through a
police cordon, yelling he was oppressed. When the commission
asked for the man, the police later brought in someone who
was not the same (Josef Korbel, op. clt., pp. 145, 148-149.).
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181

his recommendation, the Security Council named a


single United Nations representative to perform the
remaining work In the area. The dispute between the
two states has not been settled to this date.
60
Death of Patrice Lumumba
During the United Nations operations In the Congo In

1961, a key political leader, Patrice Lumumba, and two col

leagues were killed under unusual circumstances. The Security

Council on February 20 called for "an Immediate and Impartial

investigation...In order to ascertain the circumstances" of

the deaths.^1 A commission composed of Burma (chairman), Togo

(rapporteur), Ethiopia, and Mexico held fourteen meetings in

New York, starting on May 11, and then proceeded to London,

Brussels, and Geneva. Efforts to visit the Congo were unsuc

cessful. The commission's trip was first postponed at the

request of United Nations officials in the Congo who felt

that its arrival during the course of attempts to establish a

parliamentary government would be untimely. Later, the new

government refused to give the commission permission to enter

its territory.

Report of the Commission of Investigations United


Nations Docs. A7?964 and S/4976 anc[ Report of the Security
Council to the General Assembly, 16 July 19^ — July 19ol in
General Assembly, Offlclar’Kecords, lbth sess., Supp.
2(a/4867).
^ United Nations Doc. A/4964, p. 4.

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182

Despite the inability of the commission to go to the

Congo, it made and published a report on November 14, 1961,


based on the examinations of witnesses in closed session and

on United Nations documents. It concluded that Mr.


Lumumba
had been murdered probably in the presence of high officials

of the Katanga Province. The commission attributed some


blame
to President Kasavubu and his aides because they handed the
victim to the Katanganese authorities "knowing full well...

they were throwing ^Tig7 into the hands of.. .bitterest


„62
political enemies. No specific action was taken on the
report, but it has been referred to in discussions relating
to the overall direction of United Nations operations in the

area.
In the succeeding pages, the commissions established and

assigned important investigative functions by the General


Assembly are described.

63
Palestine

The question of the future of Palestine was referred to

the General Assembly in April, 1947 by Great Britain after its

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

failure as mandate administrator to secure an agreement


between the Arabs and Jews. On April 28, 1947 the General
Assembly established the United Nations Special Committee on
Palestine with "the widest powers to ascertain and record
facts, to Investigate all questions and Issues relative to
the problem of Palestine , and to formulate and present

64
proposals. The commission was authorized to conduct

Investigations In Palestine and wherever it deemed useful and


to receive and examine written or oral testimony.
The commission, one of the largest to be set up by the

United Nations, was composed of representatives of Australia,

Canada, Czechoslovakia,Guatemala, India, Iran, the

Netherlands, Peru, Sweden (elected chairman), Uruguay, and

Yugoslavia. The group first met on May 26 In New York, and it

arrived in Palestine on June 16. When the Arab High

Commission refused to cooperate, the committee sent members

to consult with the Arab leaders of the neighboring states of

Lebanon, Syria, and Transjordan. One subcommittee visited

displaced persons camps and their administrators in Austria

and Germany; another studied the religious question. The

entire committee then spent one month In Geneva drafting the

report which was adopted on August 31, 1947 by a vote of mix

to four with one abstention.

^ United Nations, General Assembly, Official Records.


1st spec, sess., Plenary Meetings, pp. 173-175*

s
K
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184

The majority report recommended partition with economic

union; the minority report recommended a federal state. On

November 29, 1947 the General Assembly adopted a resolution

Incorporating, with some modifications, the majority recom

mendations.^ Of all the reports by fact-finding bodies In the

United Nations, this had the greatest and most direct effect

66
on the action taken by the principal organ.

Eritrea67

The question of the disposition of the former Italian

colony of Eritrea came to the General Assembly because of

the failure of the Big Pour after World War II to agree

about Its future. In 1949 the Assembly established a

commission composed of Burma, Guatemala, Norway, Pakistan,

and the Union of South Africa "to examine the question of

the disposal of Eritrea and to prepare a report...."6®


Even after visiting the territory and using a subcommittee

to study special problems, the commission was so split on its

views about the future of Eritrea that It became the only group

6^ United Nations Doc. A/519, pp. 131-150*


6® L. Goodrich and A. Simons, op. cit., p. 201.
^7 Report of the Commission on Eritrea of June 8 , 1950.
United Nations .General Assembly, "riffle iai~Records. 5th sess..
Supp. 8 (A/1285).
68 The text appears in United Nations, General Assembly,

Official Records, 4th sess., Resolutions, (1949)# PP* 11-12.

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185

69
to date which has not been able to present a majority report.

The General Assembly eventually recommended on December 2,


1950 that Eritrea be constituted as an autonomous unit federated
70
with Ethiopia under the sovereignty of the Ethiopian crown.1
The commission's report probably had little Influence
71
on the final course of action chosen.
72
Racial Policies in South Africa

In 1952 a commission was established by the General


Assembly to examine the question of race conflict in the Union

of South Africa resulting from apartheid policies and to present


73
conclusions. Three persons were selected for the commission
from a panel of names prepared by the sponsors of the resolu

tion initiating the inquiry.


Unable to enter South Africa, the commission relied on

witnesses and documents, and after five months submitted a


unanimous report affirming that the apartheid policy to be

69 The rapporteur of the commission attributed the lack


of agreement partly to the devotion of too much time to pro
cedural matters (United Nations Doc. A/AC.l8/SR.39> PP. 2-3).
^ Yearbook of the United Nations, 1950, pp. 368-370.
L. Goodrich and A. Simons, op. cit., p. 201.
The final solution was similar to the recommendations
of a minority of two members, Burma and South Africa.
See also H. Pield Haviland, op. cit., p. 124.
72 Report of the United Nations Commission on the Racial
Situation in the Union of South Africa, UnitedtfaEions, General
Assembly, UTfTcTal Records, 8th sess., Supp. 16 (A/2 5 0 5 ) (1953).
73 Ibid., 7th sess., Supp. 20 (A/2361), pp. 8-9.

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186

contrary to the Charter. After a lengthy discussion, the


Assembly registered Its disapproval of the policy and In
structed the commission to continue Its studies. It
did not,

however, adopt the course suggested In the report which In


cluded the creation of conciliatory machinery. In
successive

sessions, the General Assembly has repeatedly called on South

Africa to fulfill Its obligations in the Charter and urged

members to use measures to encourage abandonment of the


apartheid policy.

7 k
Hungary1

In October, 1956 an unsuccessful attempt was made to


overthrow the government in Hungary. On November 4 the

General Assembly requested the Secretary-General to Investi

gate the situation caused by foreign Intervention in H u n g a r y .

Later, on recommendation of the Secretary-General, the


General Assembly reconsidered the form to be given to the
investigation, and on January 10, 1957 named a committee of
representatives from Australia (rapporteur), Ceylon, Denmark

(chairman), Tunisia, and Uruguay.^ It was "to


investigate
7k
Interim Report of the Special United Nations Committee
on Hungary, United Nations Etoc. A/3546 (1957); Report ot the
Special Committee, United Nations, General Assembly, Official
Records, 11th sess., Supp. 18 (A/3592) (1957).
^ United Nations, General Assembly, Official
Records, 2nd spec, sess., Supp. 1 (A/3355) (1956), p. 2.
His committee had concluded all the
investigatory activities it felt it could accomplish
in New York under the existing terms of reference.
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187

and to establish and maintain direct observation In


Hungary and elsewhere, taking testimony, collecting
77
evidence and re-ceiving Information....”

Refused permission to enter Hungary, the commission met


In New York and throughout Europe to hear witnesses with
first-hand knowledge.7® A unanimous report concluded that
the revolution was a spontaneous national uprising, and it
con firmed and documented Soviet Intervention In the
internal affairs of Hungary. The report noted that while the
commis sion had been unable to operate in Hungary, the data
which might have been collected there could not have
modified its main conclusions.7^ The Assembly endorsed the
report on September 14, 1957 > condemned the role of the
Soviet Union in Hungary, and named a special representative

8o
to continue ob-serving the matter.

81
Congo
Since I960 when the Congo became independent, the United

Nations has been engaged in activities there directed toward

77 Ibid., 11th sess., Supp. 17 (A/3572), pp. 65-6 5 .


78 The magnitude of the task can be seen from the
2,000 pages of evidence gathered from oral testimonies.
79 United Nations Doc. A/3592, p. 4.
United Nations, General Assembly, Official
Records, 11th sess., Supp. 17A (A/3572/Add.l), p. 1.
Report of the Conciliation Commission, United
Nations Doc. A/471l/Adds. 1 and 2 (March 1961J.

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188

the establishment of an effective central government. On

November 5, i960 a Conciliation Commission for the Congo com

posed of nineteen Arab and Asian states was established with

the two-fold task of studying the situation and engaging In


go
conciliation with contending political leaders. Because of the

reluctance of Congolese leaders to cooperate with the

commission, its trip was postponed until January 3, 1 9 6 1.

During its six-week visit, the commission met with political

leaders and studied the situation, but had little success with

its mediatory efforts. Its report on March 20, 1961 merely

stated approval of the current course of action of the


Security Council and affirmed that the root of the crisis was go

in Belgium's past performance and continued interference.

84
Territory of South-West Africa

The first instance of the General Assembly directing an

existing subsidiary body to make a special inquiry took place

in 1961 when it called for an investigation of the situation in

South-West Africa. In 1953 the Assembly had established

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.

^ Report of the Committee on South-West Africa.


General Assembly. ftfflclallEecords, lbih sess., Supp.
12 (a/4957) (1961).

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189

the Committee on South-West Africa to handle the dispute between

the United Nations and the Union of South Africa over the dis

position of this former mandated territory. On April 7, 1961, the

committee was requested to go Immediately to South-West Africa to

Investigate the situation prevailing there with or without the

cooperation of South Africa.®-* The committee was unsuccessful In

its effort to enter the territory, but drafted a report based on

information from the Secretary-General, petitions and

communications from the inhabitants, and inter views with

refugees in Africa. It confirmed the determination of South

Africa to annex the territory without proper consulta tion with

the inhabitants, and condemned the deplorable treatment of non-

Europeans and the policy of apartheid which had been extended to

the territory. The commission warned that "only timely

intervention by the United Nations" could prevent armed racial

86
conflict. The General Assembly approved the report on December

19, 1961, and set up a special com mittee to help prepare the

territory for general elections

and to assist with the evacuation of South African troops.^

United Nations, General Assembly, Official Records.


15th sess., Supp. 16A (A/4684/Add. 1).
United Nations Doc. A/4957, p. 30.
united Nations, General Assembly, Official Records.
16th sess., Supp. 17 (A/5100), pp. 39-40.

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190

88
Angola

Beginning with prison raids In Luanda, Angola, in February,

1961 a series of terrorist acts swept across wide areas of the

country. When the Security Council failed to Initiate an in

vestigation, the General Assembly overwhelmingly adopted a

resolution on April 20, 1961 establishing a subcommittee "to

examine the statements made before the Assembly concerning

Angola, to receive further statements and documents, to conduct

such inquiries as It may deem necessary and to report" as soon as

possible. The Assembly president appointed Bolivia, Dahomey,

Malaya, Finland, and the Sudan to the committee. Although the

Portugese government would not allow the commission to enter

Angola, it finally invited the chairman to Lisbon to meet with

officials. A subcommittee gathered firsthand information from the

Angolans in the Congo, and the commission examined docu ments

from many sources. The report, adopted unanimously, con cluded

that the raids in Luanda were locally inspired and not led by

foreign-inspired elements, as Portugal had maintained.

It pointed to genuine grievances of the population against the

administration of the territory and concluded that the situation

called for drastic reforms and the formulation of plans to pre

pare the territory for self government. On the basis of this,the

General Assembly on January 30, 1962 urged Portugal to undertake

88 Report of the Subcommittee on the Situation in Angola,


United Nations, General Assembly, Official Records, IT>th sess.,
Supp. 16 (A/4978) (1962).

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191

reforms and set up a subcommittee to study ways to implement

its p r o p o s a l . T h e Security Council later adopted a

resolu tion supporting the Assembly action.9°

Death of Dag Hammarskjold^1

During a mission to the Congo, Secretary-General Dag

Hammarskjold and fifteen aides died in a plane crash on September

18, 1916 in Northern Rhodesia. The General Assembly called for

"an investigation of an international character" into "all the

conditions and circumstances surrounding this tragedy." "Five

eminent persons" from Sierra Leone, Argentina, Sweden, Nepal, and

Yugoslavia were selected on the recommendation of the Assembly

president to compose the commission. One of the


*
purposes of the investigation was suggested by reference in the

resolution to the world-wide concern about the incident and the

undesirable speculation which might continue in the absence of

an international investigation.

During a three-month inquiry, the commission traveled in

Africa, held its own public hearings, used various governmental

and United Nations documents, and cooperated with and used the

reports of the Rhodesian investigating team. The report failed

to resolve the mystery; it merely concluded that Secretary-

General Hammarskjold’s death could have been caused

United Nations, General Assembly, Official Records,


l6th sess., Supp. 17 (A/5100), p. 6 7 .
9° United Nations Doc. S/4835 (June 9, 1 9 6 1 ).
91 Report of the Commission of Investigation, United
Nations Doc. A/505<TTApril 24, 19^2).

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192

by sabotage or other hostile action, but that no


evidence was found to prove this.
92
Murder In Ruanda-Urundi

When the news reached the General Assembly of the murder of

the prime minister of Burundi, a resolution was adopted directing

the United Nations Commission for Ruanda-Urundl which had been

established in i960 to supervise elections, to visit the scene

Immediately In order to carry out an investiga tion. The

commission received the orders of the Assembly while in Geneva

preparing a report about its primary work.

It left on October 2 8 , 1961 for Usumbura. The

committee, com posed of representatives of Haiti, Togo,

and Iran, subse quently reported that a Greek national

bom In Ruanda-Urundl had fully confessed. It also

presented the main trends of opinion circulating in the

territory about the reason for the assassination.


* * *

Prom the experience of the United Nations with inter

national inquiry have come several important contributions to

the development of the procedure. For one thing, the United

Nations commissions have investigated matters which were

Report of the Commission for Ruanda-Urundl on the


Assassination, United Nations I)oc. A/5 0 8 6 (January 196577

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193

not actually disputes and where there were not clearly

defined parties. The experience has shown that a commission's

report on such subjects as the death of Lumumba or the future

of Eritrea Is regarded as useful to the organization itself

and to its members Individually, helping them to formulate

their policies In regard to the subjects Investigated rather

than, as is more usually the case, to reconcile states In

disputes. Indeed, one of the main services of all United

Nations inquiry proceedings has been that of informing

members so that they can act In a more enlightened manner.

This was apparent from the information made available by the

Inquiry into the Hungarian revolution. At the beginning of

the inquiry, members were not in agreement about the charges

of Soviet intervention, but by the time the findings of the

commission were available, they adopted a report unanimously.

The practice of the United Nations in conducting some

inquiries over the opposition of a party directly concerned has

revealed some interesting and, perhaps, unexpected results. The

fact that the reports of commissions which have been unable to

visit the specific area of the problem have sometimes been

endorsed by the General Assembly, suggests that worthwhile

investigations may be carried out, if necessary, even under

extremely unfavorable conditions. This is especially sig

nificant since proposals to investigate many of the questions

currently placed on the agendas of the Security Council and

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194

General Assembly would almost certainly draw


opposition from the parties directly concerned.
An unfortunate aspect of Inquiry In the United Nations

has been that In the Initial stages of the establishment of

a commission, the matter usually has been a political

football. In contrast to the practice within the League of

Nations, Inquiry has not become a regular and natural step In

the handling of disputes or situations by the General

Assembly or the Security Council. As a result, decisions

which have had a bearing on the work of the commissions as

well as on their Initial establishment, have sometimes been

based on the political exigencies of the moment rather than

on an acknowledged need and desire for Information.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
CHAPTER VIII

INQUIRY IN THE ORGANIZATION OF AMERICAN STATES

Commissions of inquiry have been used regularly by the

Organization of American States since 19^9 in handling dis

putes in the Western Hemisphere. Their activities have

built up a considerable experience with on-the-spot investiga

tions and have been of indisputable value in reducing inter-

American tensions.^ In this respect, the international com

missions of inquiry in the Western Hemisphere have verified

the validity of one of the original arguments advanced in

their support, that the period of investigation would allow

time for passions to subside. While the commissions' findings

have not led to permanent settlements of the substance of the

problems, their reports have at times made contributions

toward this end by initiating steps, perhaps conventions,

capable of producing better relations among the American


p
republics.
United States, Congress, Senate Subcommittee on American
Republic Affairs of the Committee on Foreign Relations, United
States-Latin American Relations, "The Organization of American
State's," Study No. 3> Doc. 125, 86th Cong., 2nd Sess. (i960),
pp. 2 7 , 216-217.
p
The report to the Council of the Organization of
American states by an inquiry commission in 1950 on tensions
in the Caribbean, for example, led to a 1957 Protocol which
supplemented the 1928 Havanna Convention on Duties and Rights
of States in the Event of Civil Strife. The text appears in
Annals of the Organization of American States, vol. 9 (1957),
pp." m = T 8 ? : — ------------------- -

195

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196

In practice, some aspects of the Inquiry commissions of

the Organization of American States have resembled the

experiences of the League of Nations, or the United Nations, or

both. The subjects of Inquiries of the Organization of American

States, for Instance, have been similar to many In the United

Nations from two standpoints: (l) Investigations have Involved

situations as well as disputes, and (2) several have Involved

charges of violations of human rights and political freedoms. In

securing the consent of the parties to an investigation, the

Organization of American States has been more fortunate than the

United Nations. While the record of the Organization does not

measure up to that of the League, In most cases. American states

have permitted commissions

to conduct investigations on their territories. In


addition to these similarities with the League or the
United Nations, commissions of the Organization of
American States have also developed characteristics of
their own which will be noted in this chapter.
The responsibility for setting up commissions of inquiry

within the inter-American system has rested with two separate

bodies, the Council of the Organization of American States

and the Inter-American Peace Committee. The scope of


authority

of these two bodies differs in many respects in regard to


initiating inquiries although the actual investigative pro
cedures of the commissions are similar regardless of origin.

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197

When the Council has established commissions of Inquiry,

It has been acting provisionally as the Meeting of Consulta

tion of the Ministers of Foreign Affairs, another organ of the

Organization of American States usually called the Organ of

Consultation. The Rio Treaty of 1947 enables the Council, once

it has convoked a meeting of the Organ of Consultation (which

meets very infrequently), to function as a Provisional

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

inquiry ordered by the Council of the Organization of American

States is very broad. As the Provisional Organ of Consultation,

the Council may handle differences described by the Charter

of the Organization or by the Rio Treaty as problems of "an

urgent nature," of "common interest," or involving an armed

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

dispute by Its own action or by petition of an Individual

state, and In either situation an Inquiry may be Initiated. The

Investigation may concern the substance of the dispute or It

may be made primarily to enable the Council to decide If a

convocation of the principle Organ of Consultation is justi

fied. In practice, the Council, when using commissions of

inquiry, has usually set the date of the meeting of the Organ

of Consultation far enough In advance so that the former has

had time to handle the matter itself.

The Council may establish Its own commissions of Inquiry,

as it frequently has done, or it may direct the Inter-American

Peace Committee to make an investigation as It did in 1961 in

relation to charges that the subversive activities of the

Castro regime in Cuba constituted a threat to the peace of the

hemisphere. A decision to Initiate an Inquiry requires a two-

thirds vote of the Council on which all members of the

Organization of American States are represented. Parties


6
directly interested may not vote.
The other organ which may initiate inquiries is the

Inter-American Peace Committee. Originally set up by a

5 The text of the Charter of the Organization of


American States appears in Annals of the Organization of
American States, vol. 1 (1949), pp. ittC.
^ Organization of American States, Applications
of the Inter-American Treaty of Reciprocal
Assistance, 1948-1955 (1957), P. 7.

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199

resolution of the Havanna Meeting of Consultation in 1940, it

was not organized until eighteen years later and was actually

overlooked in 1948 when inter-American institutions were being

reorganized.^ Its five rotating members are chosen by the

Council of the Organization of American States and include two

representatives from North American, two from South American,

and one from Central American and Antilles areas.

According to the regulations in force until 1956, the

Committee could take action without the consent of the parties

concerned and could consider a request by any American state

whether or not it was a member of the Committee or directly

concerned with the matter. The revised regulations, which

were approved on May 9, 1956 by the Council of the Organization

of American States, limited the jurisdiction of the Committee

to cases where all parties concerned consented to its action

or where a state directly concerned in a matter asked the


8
Committee to act. These limitations developed in the wake
of the Committee's experience in handling the Guatemalan case

in 1954 when an investigating team, already departed on its

^ Originally designated as "The Inter-American Committee


on Methods for the Peaceful Solution of Conflicts," its name
was later changed to "The Inter-American Peace Committee." Its
function is that of suggesting to the parties the methods and
measures that it believes will lead to a solution (ibid., P.
2).
® The text appears in Annals of the Organization of
American States, vol. 8 (1956), pp . 194-1967

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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.

The Committee now may Initiate investigations on its own, or

at the request of any American government on matters generally

described as pertaining to violations of human rights and


11
representative democracy in the hemisphere. The consent of

any member on whose territory an investigation is planned is


still required. Since 1959 the Committee has again been

active in making inquiries, and in practice it has become an

arm of the Council. The reports of the Committee's


-

Inter-American Peace Committee, Report on the


Dispute Between Guatemala, Honduras, and Nicaragua.
Ean American UnibnHDoc. CIP-l3l/54 (July 8 ^ 9 5 ^
Inter-American Juridical Committee, Study...of the
Proposal of Ecuador Concerning the Inter-American Peace
Commlitee~Tl959), PP. l-£.
11 Resolution IV of the Fifth Meeting of Consultation of
the Ministers of Foreign Affairs, Santiago, August 8, 1959
(United States, Department of State, Bulletin, vol. 41 /T9527*
pp. 343-344). The text also appears in American Journal
of International Law, vol. 56 (1 961), pp. 539-540.
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201

investigations have been used by the Council as background

material, and at times both organs have acted


12
simultaneously in a case.
Other than the restrictions on the work of the Inter-
American Peace Committee already noted, neither its basic

documents nor those of the Council contain details about the

use of inquiry. Within the limits of each organ's procedural


rules, there is therefore a considerable flexibility in de
termining the task, authority, and composition of investigat

ing commissions.1^
When establishing a commission of inquiry, the Council
of the Organization of American States has outlined the task

in a resolution. The extent of and procedure for giving the


commission specific directions regarding its method of opera

tion have varied from case to case. The commission set


up

in the dispute between Costa Rica and Nicaragua in 1948 was


directed simply "to investigate on the spot the facts denounced

14
and their antecedents." The task of the commission was

12 Louis B. Sohn, "The Role of International Institu


tions as Conflict-Adjusting Agencies." The University of
Chicago Law Review, vol. 28 (Winter 1961), p. 246.
■*-3 The method of selecting a Council commission's chair
man is governed, for instance, by the provision in the Council's
regulations that subsidiary groups shall elect their own
chaixmen. The text of the regulations appears in Annals of the
Organization of American States, vol. 1 (1949), PP. 211-
---------------------------------
1^ Applications of the Inter-American Treaty of
Reciprocal Assistance, 1948-19567"p. £2.
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202

elaborated and, in fact, expanded, in a note subsequently


addressed by the chairman of the Council to the committee
members. The chairman stated that the committee was "charged
with making a special study of the situation that has arisen...,

Its causes and background, and also of those other situations

related to such problems that might threaten the peace and

security of the hemisphere."1^ He added the following


para

graph relating to the contents of the commission's report:

It is understood that, after the committee


has gathered the material required to reach Its
decision, it will provide the Organ of
Consultation with its suggestions as to the
methods, proposals, or recom mendations that It
believes should be adopted, not only as a matter
of necessity, but also as a matter of urgency.1°
In 1950, however, when the Council set up a committee
to investigate differences between Haiti and the Dominican
Republic relating to charges of Intervention and of violation

of political freedom, a different procedure was followed.


The Council set up the commission on January 4, 1950 with
directions "to conduct an on-the-spot investigation of the
facts and their antedents," adding that the powers and attri

butes of the commission would be fixed by the Organ of Consul

tation.1^ Immediately after its installation, the commission


outlined a preliminary Basis of Action which was presented to

1^ The text appears in ibid., pp. 22-23.

16 Ibid-

17 Ibid., p. 81.

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203

and approved on January 11 by the Council, acting as Pro-

l8
visional Organ of Consultation.

The following excerpts from the Basis of Action have


generally been followed by the Council's fact-finding bodies:

The committee...is authorized to elect its own


chairman and to determine its own course of procedure.
The Secretary-General of the OAS shall appoint
the secretary of the committee and provide the other
secretarial and technical assistance which the com
mittee may require.
The expenses of the committee shall be borne by
the OAS and shall be paid by the Pan American Union. It
is understood that the expenses of advisers and others
accompanying the members of the committee are not
included within the provisions of this article....
The committee is authorized to hear witnesses, to
receive depositions and to avail itself of any other
sources of information which it may consider pertinent
in better informing itself of the facts and ante
cedents. ...
The committee shall prepare a report or reports
containing a recital of the facts, the documentary
material which it may consider pertinent and the con
clusions at which it may arrive as the result of its
investigations. Such report or reports shall be pre
sented at a private meeting of the Organ of Consulta
tion, which shall decide on the documents to be made
public, and the other action that it may consider
advisable to take....
/T7he committee shall determine the itinerary for
the places which it may consider necessary to visit,
giving prior notice thereof to the respective govern
ments. ,q
The meetings of the committee shall be private. y
The specific authorization in these instructions to

present conclusions has been a task assumed in practice by

See Report of the Investigating Committee which


appears in ibid., pp. 87-123* espec. p7 8 8 .
-*-9 ibid., pp. 8 5 -8 6 j the text also appears in Annals
of the Organization of American States, vol. 2 (1950), pp. 14ZP
155.

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204

all Investigating commissions appointed by the Council of the

Organization of American States and the Inter-American Peace

Committee. In fact, the commissions' conclusions have charac

teristically been accompanied by recommendations.

Unlike the League and the United Nations, the members of

Inquiry commissions of the Organization of American States

have been composed of diplomats of ambassadorial rank who were

serving as representatives of their state on the Council. The

president of the Council has selected the representatives to

serve on each Investigating commission. Investigations

Initiated by the Inter-American Peace Committee have sometimes

been carried out by the entire membership; at other times the

president has named a subcommittee of two or three to collect

Information on the spot for the whole committee. When a

member of the Peace Committee has been a party to a dispute

to be Investigated, It has withdrawn and the Council has named

a substitute. The members of commissions set up by both the

Council and the Peace Committee have been accompanied by ex

perts and technical advisers. The delegations of commissioners

who Investigated disputes where hostilities were In progress

have also Included diplomatic and military advisers.

Since the Organization of American States was set up as a

regional system within the framework of the United Nations, the

rights and duties of the two organizations.In the handling of

disputes are Intended to be coordinated and Interwoven by

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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

Organization or by the Inter-American Peace Committee in main

taining international peace and security. In 195*1 during


the

course of the controversy arising over events in Guatemala,

both organizations were asked to take action. Upon being


in

formed of the Peace Committee's efforts to dispatch a fact


finding commission to Guatemala, the Security Council rejected
pi
a proposal to put the item on its agenda. The view of the
majority apparently was that the regional agency should be
given the first opportunity to make an investigation of the

matter.
There have been at least seven instances since 19*19 when

the Organization of American States has used commissions of

inquiry. Pour have been set up by the Council and three in


vestigations have been carried out by the Inter-American Peace

Applications of the American Treaty of Reciprocal


Assistance, 1948-19567’"p"1^0” fcor a discussion of the function-
lng of the regional system of peace machinery within the United
Nations framework see, for example, the following study pre pared
for the Interim Committee of the General Assembly, Regional
Action for Pacific Settlement within the Framework
of the United NationlT~Charter, United Nations Doc. A/AC.18/114
Tt9Wf> PP. 75-88* and M. Jimenez, "Le traitement des
dlfferends intemationaux par le Consell de Security,” Recueil
des Cours, 1'Academic de droit international, de la
feaye, voI7"85 (1954-1)* PP. 80-82.
^ United Nations, Security Council. Official Records.
9th yr., Supp. for April, May, June, 195** IS/&49), pp. 17-18.
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206

«
Committee. In addition, there have been several Instances

when commissions have been sent on observation missions

and engaged In work bearing a close resemblance to

Inquiry. The following paragraphs pertain to these

Investigations.

Costa Rica and Nicaragua, 1948-194922

During the night of December 10, 1948 a large group of

armed Costa Rican and Nicaraguan revolutionaries began an

armed expedition against the Costa Rican government. The

next day Costa Rica notified the chairman of the Council of

the Organization of American States that Its territory had

been Invaded by armed forces proceeding from Nicaragua. In

the Council meeting the following day, Nicaragua denied that

its armed forces had been Involved, and accused Costa Rica

of aiding the forces of the Caribbean Legion which had the

over throw of the Nicaraguan government as one of Its alms.

On December 14, following a request by Nicaragua for an

investigation, the Council adopted a resolution establishing

a committee to make Inquiries on the spot. The committee

selected by the Council president was composed of the repre

sentatives of Mexico (chairman), the United States, Brazil,

and Colombia. Following its arrival in Costa Rica on

22 Applications of the Inter-American Treaty on Reciprocal


Assistance, 1948-1956, PP. 19ff: Memorandum on tnclSuestlon of
the Costa Rican Border. Incidents Prepared ’Ey the Secretarial.
United Nations Doc. A/AC.lb/SC.b/3 (rtarch 19^9), and Annals of
the Oreanization of American States, vol. 1 (1949), PP.
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207

December 17, the group questioned governmental officials on

both sides, prisoners, and various other Individuals. It

returned to Washington on December 23, met with the Council

chairman, and submitted its report the following day. The

committee concluded that the revolutionary movement in Costa

Rica had been organized mainly in Nicaragua whose government had

not taken adequate measures to prevent these activities until

after December 10 when the main forces entered Costa Rican

territory. The report noted also that Costa Rica had failed to

carry out certain amnesty measures regarding political exiles,

and confirmed that it had given official help and sympathy to

the Caribbean Legion. On the committee*s recommendation, the

Council appointed a commission of military experts to supervise

preventative measures that it had sug gested. Later in the year,

with the help of the Council, the two parties signed an

agreement outlining measures to prevent revolutionary activities

in one state against the other.

Haiti and Dominican Republic, 19502^

On January 6, 1950 the Council met to consider charges

by Haiti that certain actions of the Dominican Republic were

threatening the peace of the continent. The complaint was

23 Annals of the Organization of American States, vol. 2


(1950), PP. 135:iT53r”231-252j Applications of the Inter-American
Treaty of Reciprocal Assistance, 194tt-195b, PP. o2ffj United
states. Department of State. American foreign Policy 1950-1955:
Basic Documents, vol. 2, Pub. 644b (195r), PP. 1268-
1279.

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208

made following a series of Incidents the previous year

allegedly Involving the Dominican Republic In plots directed

toward the overthrow of the Haitian government. The Dominican

Republic denied the charges during a lengthy debate in the

Council, and contended that Haiti and other American states,

including Venezuela, Cuba, and Guatemala, had engaged In

actions designed to kindle civil strife In the Dominican

Republic. The Council eventually established a committee

composed of representatives of Bolivia, Colombia, Ecuador,

the United States, and Uruguay to investigate the charges.

Under the terms of the Basis of Action approved by the

Council for its work, the committee first met in Washington,

where it heard and received information from the interested

parties. The committee subsequently spent three weeks in Haiti,

the Dominican Republic, Cuba, Guatemala, and Mexico interviewing

officials and private citizens. In a report submitted on March

13# 1950, the committee presented its find ings and conclusions

concerning the charges of both parties and outlined five draft

resolutions which were accepted in substance by the Council. The

report concluded that the Dominican Republic had not fulfilled

its obligations undertaken in an earlier agreement by failing to

take adequate measures to prevent activities on its territory

directed against Haiti. It confirmed that there had been within

Cuba in 19^7 and within Guatemala in 19^9 groups of various

nationalities

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209

working to overthrow the Dominican government by force


and that the officials of these states had openly
sympathized with •ad helped them.
On the commission's recommendation, the Council established

a special committee to help the parties implement the resolu

tions. Steps were also started to carry out the committee's

recommendation that certain conventions pertaining to civil

strife and diplomatic and territorial asylum be revised.

o k
Guatemala-Honduras and Nicaragua, 1954

During the early stages of a successful revolution led by

Col. Castillo Armas, the Guatemalan government on July 19*

1954 sent a note to the Inter-American Peace Committee charg

ing Honduras and Nicaragua with aggression. The Peace Com

mittee met within three hours of being notified of the com

plaint and made plans to send a special subcommittee that

evening or the next morning to Guatemala. The departure,

however, was postponed on the request of Guatemala, then

awaiting a decision by the Security Council, to which it had

also submitted the dispute. Meanwhile, the original complaint

by Guatemala resulted in the lodging of countercharges by

Nicaragua and Honduras before the Peace Committee. After the

Inter-American Peace Committee, Report on the Dispute


BetweenGuatemala, Honduras and Nicaragua, ran American tmlon
Doc. ClP-131/54 (July d, 195^)• Selected documents appear in
United States, Department of State, American Poreign Policy
Current Documents. 1956, Pub. 6811 (1959), PP* l2£l-le!92.

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210

Security Council refused to consider the matter (on June


2 5 ), Guatemala turned again to the Peace Committee and

consented to the original fact-finding mission.2^

Having received assurances from the authorities In


Guatemala on the morning of June 29 that It would b% allowed

the proper facilities for its work, the investigating com

mittee left Washington at 2 p.m. At 10 p.m., however, upon

its arrival in Mexico City, it was forced to interrupt its

trip because the course of events during the day had placed

new authorities in control who asked that the fact-finding

mission be stopped. The Committee was Informed that the good

offices of the United States and El Salvador had been

extended to help end the fighting. Before returning to

Washington, the Peace Committee communicated with the

governments involved and issued a statement to the press

noting that the contro versy had ceased to exist.

Costa Rica and Nicaragua, 19552^

In 1955 a new phase of the dispute between Costa Rica and

Nicaragua which had been the subject of an investigation in

1948-49 erupted. Three days after receiving a note from Costa

2^ A summary of the discussions in the Security


Council appears in Repertoire of the Practice of the
Security Council. Supplement, 1952-1955, pp. 164-lbti.
Applications of the Inter-American Treaty of
Reciprocal Assistance, 194d-I956T~PP. 15£-2£3.

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211

Rica claiming that an attack on its territory was imminent, the

Council on January 11, 1955 appointed an investigating committee,

which held its first meeting the same day. The committee was

composed of the representatives of Mexico (chair man), Brazil,

Ecuador, the United States, and Paraguay, and was instructed to

investigate the facts and their antecedents.

After leaving for Costa Rica (the day after its establish

ment), the committee received additional instructions from the

Council to investigate a report that Costa Rican towns had been

machine-gunned by aircraft of unknown origin. Aerial observations

of the border and interrogation of witnesses


27
began the following day. ' The committee immediately notified

the Council of military operations in progress in the north

western portion of Costa Rica. On the third day, the committee

reported that a substantial portion of the elements of war were

entering Costa Rica through ita northern boundary, and

recommended that the Council request Nicaragua to take measures

to stop its movement. The Council carried out the recommenda

tion and also asked the committee to send observers to all

airports in the area and to determine the origin of the mili

tary forces and material. When the committee cabled the Council

that Costa Rica did not have sufficient arms to defend

According to one commentator, this action


prevented a repetition in Costa Rica of the events in
Guatemala in 1954.(Louis Sohn, op. cit., p. 245).

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212

Itself, the Council subsequently urged that arms


orders to Gosta Rica be expedited.
During Its stay In Costa Rica the committee was In

structed by the Council to devise a plan for the effective

surveillance of the common frontier. Such a scheme was put

into operation on January 20 with help from the committee's

military advisers who observed conditions along the boundary

while the committee continued its investigatory work. Re

turning to Washington on January 28, the committee presented

a comprehensive report on February 18.

On the basis of its findings, the Council appealed to the

parties to sign further agreements to prevent the organization

of revolutionary movements by persons granted political asylum,

and recommended general measures for curbing the illegal arms

traffic. A special committee was named to cooperate with the

parties in preparing an agreement and to continue the military

observation of the frontier. With the assistance of the special

committee, the parties arrived at two agreements, one

establishing a permanent commission of inquiry and concilia tion

and another on measures to prevent revolutionary activi ties

within their territories.

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213

28
Honduras and Nicaragua, 1957

In 1957* hostilities broke out between Honduras and


Nicaragua as a result of a long-standing boundary
dispute. The Council met on May 1, 1957 to consider the
matter, and on the following day named an investigating
committee composed of representatives of Argentina
(chairman), Bolivia, Mexico, Panama, and the United
States to visit the spot. The committee left the next
day, and after consulting briefly with both governments,
arranged for a cease-fire the day after its arrival. On
May 10, the troop-withdrawal plan went into effect.
From the date of its establishment, this investigating

committee collaborated with military experts assigned by the

governments of the states represented on the committee. On

May 6, the committee set up a subcommittee of military ad

visers to investigate the accusations made by either side

and to work out the technical and military aspects of the

troop-withdrawal plans. Additional military advisers were

later placed at the disposal of the committee.

Leaving the Panamanian representative at the scene, the

28 Annals of the Organization of American States, vol.


9 (1957)* pp.264^570 and vol. 10 (1958), pp. 14-15; United States,
Department of State, American Foreign Policy: Current
Documents. 1957, Pub. 7101 (1961), pp. 33^-352; 6harles”5~
Fenwick, The Honduras-Nicaragua Boundary Dispute, American
Journal of International Law, vol. 51 (1957)* PP. 761-7*>5*
Report oT~the Investigating Committee, Pan American Union
D 5 tT c /i7 3 ^ T (l9 5 7 ). ---------------

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214

committee returned to Washington and submitted its report on May

16. The following day, the delegations represented on the

committee presented a draft resolution based on the committee's

recommendations which was adopted by the Council. The report of

the investigation committee in this case did not deal with the

substance of the dispute or present conclusions concerning the

responsibility for the aggression. The committee noted that the

dispute involved extremely complex issues which could not be

elucidated simply from its investigation on the spot.

It justified its refusal to reach conclusions on the


legal issues partly by its terms of reference where the
"only and clear" instructions were to investigate the
facts and their antecedents, and partly by precedents
set by previous Council Investigating agencies.
With the help of a special committee of the Council

the parties later agreed to submit the dispute to the

International Court of Justice. The Court directed

Nicaragua to give effect to the 1906 arbitral award which

it had previously refused to accept.29

Dominican Republic and Venezuela, February, 1960^°

On February 17, i960 Venezuela asked the Inter-American

29 International Court of Justice, Reports (i9 6 0 ), No. 192.

Inter-American Peace Committee, Report on the


Case Presented by the Government of Venezuela, Pan
American Union Doc.to/4 (June 7, i9 6 0 ).

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215

Peace Committee to investigate "the flagrant violation of human

rights" by the Trujillo regime in the Dominican Republic, which

it claimed aggravated tensions in the Caribbean. Venezuela, a

member of the Peace Committee at the time, with drew from

active participation when making the request, and Colombia was

appointed as a substitute. Earlier, on February 9, Venezuela

had presented the matter to the Council where the members were

in disagreement about the agency best fitted to investigate.

After its working group considered the matter, the Council

resolved on February 13 that the Peace Committee was the

appropriate organ.
The Peace Committee subsequently initiated its investiga

tion, but was denied permission to enter the Dominican

Republic. In a statement explaining its refusal (which the

Peace Committee made public), the Trujillo government pointed

out that it had permitted a subcommittee of the Peace Com

mittee to visit its territory in October, 1959* Since the

Committee had not investigated other states in the Caribbean,

the Dominican Republic would not welcome another visit to its

territory. The Peace Committee was therefore obliged to rely on

information received from other governments and from testimony

of exiles and other Latin American nationals who had been in

the Dominican Republic at the time in question. Wit nesses were

examined in closed sessions and their names were not

publicized. When interviews with officials of the

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216

Dominican Republic gave hope to the Peace Committee that an

amnesty for political prisoners might be decreed on Easter, the

Committee decided not to prepare any report which might

adversely affect the prisoners' fate. Instead, it issued a

general statement dealing with the relationship between viola

tions of human rights and political tensions in the hemisphere.

Because amnesty was not granted as expected, the Committee made

a final report on June 6, i960 in which it concluded that

"international tensions in the Caribbean have been aggravated

by flagrant and widespread violations of human rights...

committed...in the Dominican Republic," and that the


tensions were increasing and would continue so long as

the violations were made.^ One more investigation was


made in i960 before the American states applied

sanctions against the Dominican Republic.

32
Dominican Republic and Venezuela, July, i960

When an attempt was made on the life of its president in

the summer of i9 6 0 , Venezuela submitted a complaint to the

Council of the Organization of American States that the

assassins were in the pay of the dictator of the Dominican

Republic. Meeting on July 8, the Council decided to establish

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

a committee to investigate the facts and their antecedents.


The committee was composed of representatives of Panama

(chair man), Mexico, Argentina, and Uruguay. After

investigations in Caracas and Cuidad Trujilla and an

examination of documentary and testimonial information from

outside sources, the com mittee issued a report on August 8 .

Its findings substantiated the charges against the Dominican

Republic and its recommenda tions advocated imposing

diplomatic and economic sanctions against that government.

The report was transmitted to the Sixth Meeting of


the Organ of Consultation in San Jos^ where on August
20, i9 6 0, using the report as its basis, a decision to
apply certain sanctions was made. The Council later set
up a special com mittee to carry out the decision.
During 1961 this special committee of the Council sent
subcommittees to the Dominican Republic on three occasions
to observe whether sufficient changes had occurred to Justify

the lifting of sanctions. Their mandates were defined as


the

"simple observation of Dominican realities."^ The first

group made the following statement in its report:


/ig considered that the purpose of its visit to the
Dominican Republic was to observe on the scene the

33 United States, Department of State, Bulletin, vol. 43


(I960), p. 358.
3^ Press communique of the subcommittee (Second Report,
Pan American Union Doc. OEA/Ser.G/VII, CiS/RC . ^ No v em
be r 10, 19617, p. 35).

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218

present situation In that country and to receive


Information on the character of the government and of Its
policies, In order to be able to provide the special
committee with all the data which would per mit It to
determine whether or not the government of the Dominican
Republic has ceased to constitute a danger to the peace
and security of the hemisphere, and, consequently,
whether the measures adopted...should be lifted,
maintained, or extended....35
Each trip by a subcommittee lasted several days and
usually Involved meetings with officials of the government,
with leaders of opposition groups, with individuals in various

occupations, and with students. Visits to prisons were


also

on the itineraries. When a subcommittee received information


that certain persons had disappeared or were In danger, the
alternate members visited their residences and inquired about

their whereabouts in order to establish whether or not the

information was valid. In Washington, the groups heard


state

ments from exiles and received other communications. The


reports of all three summarized their activities and presented

conclusions and recommendations. On every occasion, the

recommendations made by the subcommittees on the basis of


their observations were followed by the special committee.
Following the third trip, the sanctions were gradually lifted.

The sole distinction between the work of these three subcom

mittees and other investigating committees of the Organization

35 pan American Union Doc. OEA/Ser.G/VIII, CE/RC.VI-10,


Rev. (July 13, 1961), p. 8. The report of the third sub
committee also emphasized this task (Pan American Union Doc.
OEA/Ser.G/VII, CE/RC.VI-27, Rev. /December 20, 19617, p. 2).
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219

of American States was the limitation of the subject matter

of the interviews and reports to events talcing place at the

time.

Cuba, 1961-196236

During the course of 1961, the ties established by Prime

Minister Fidel Castro of Cuba with the Sino-Soviet bloc, and

the Indications that Cuba was being used as a base for sub

versive activities in Latin America became matters of in

creasing concern to many of the American states. Cuban


con

nections with the Communist bloc were discussed at length at

the Meeting of Foreign Ministers at Jan Jose' in August, i9 6 0 ,

but suggestions to initiate an investigation did not have

general support. Later that year, matters took a turn for


the worse, and in October Peru requested that the Council take

action under the Rio Treaty. Again, there was controversy

about proposals to conduct inquiries. This time the


Council

referred the matter to the Inter-American Peace Committee for

investigation. A month later new events led Colombia to ask


the Council to convoke a meeting of the Organ of Consultation.

In a close vote, the Council decided to schedule a meeting of

Report of the Inter-American Peace Committee, Eighth


Meeting of ConsultatlorTof the Ministers of Forelpgi
Affairs, Pan American Union Doc. 3 (January 14, 1952*); New
York frimes, January 19, 1 9 6 2 . The use of the report is
discussed by Charles G. Fenwick, "The Issues at Punta del
Este: Non-Intervention v. Collective Security, 11 American
Journal of International Law, vol. 56 (1 9 6 2 ), pp. 469-47
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220

the Organ of Consultation in Punta del Esta in


January, 1961, and the Peace Committee was asked to
present its report at that time.
In conducting its investigation, the Peace Committee sent

teams to Bolivia, Costa Rica, Panama, and Ecuador to collect

information and inquire into Cuban subversive activities in

these states. In addition to information collected by these

groups, the Committee used a document prepared by the Pan

American Union and a number of documents submitted by American

governments (including a 12,000-word paper from the United

States), examined the public declarations of Cuban and Soviet

leaders, and heard the testimony of refugees.

In its report of January 14, the Committee drew an ugly

picture of the situation in Cuba. It described the action of

international Communism In Cuba, the incorporation of the Cuban

government into the Sino-Soviet bloc, and the Communist

infiltration by the government of Cuba itself into the other

countries of America. It documented denials of freedom of

speech and press, trial by military courts, and execution by

firing squads for opposition to the revolution. In its

substance, the report concluded that the ties of Cuba with the

Sino-Soviet bloc were incompatible with the inter-American

system and that they would prevent the Cuban government from

fulfilling its obligations under the Charter of the Organiza

tion of American States and the Rio Treaty. On the basis of

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221

the committee's findings, resolutions were adopted which ex

cluded Cuba from participation In the Inter-American system


vj
and asked for a suspension of the arras trade with that state.

# * *

Great reliance has been made on the findings of American

commissions of inquiry. In every instance where they have been

used, at least some of their findings and recommendations have

become the basis for future action In regard to the dis pute

or situation treated. This appears the more significant In

view of the fact that until 1959 the Council found it

unnecessary to utilize the prestige and power of the Organ of

Consultation. The activation of the Inter-American Peace

Committee has proved to be an asset to the Council: at times

it has used the findings of investigations of the Committee,

instead of establishing its own agency. Then, too, the Peace

Committee has shown itself to be capable of investigating

problems when there has not been adequate support in the

Council to invoke the Rio Treaty and to initiate an inquiry.

The commissions in the Western Hemisphere have generally

been characterized by prompt action, many of them departing on

their mission within a day or two from the time when the

matter was brought to the attention of the parent body. Prom

37 The text of the final act of the Punta del Este


meeting appears in the American Journal of
International Law. vol. 56 (1962), pp. 601-616.

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222

the standpoint of the development of the process of inter

national Inquiry, It is well to note that always contributing

to this swift action has been the availability of commission

members who could depart with only a few hours* notice. Al

though the Organization does not have a standing commission

of inquiry, the Inter-American Peace Committee with its

investigative powers, is available for use at any time.

Furthermore, since the agenda of the Council is not so long

and demanding as those of other bodies which deal with inter

national disputes, such as the Security Council of the

General Assembly of the United Nations, it has been possible

for the Council to act promptly and to send subcommittees of

its own members on investigatory missions. This practice may

also be an explanation of the ready acceptance by the Council

of the findings of its commissions.

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CHAPTER IX

INQUIRY IN INTERNATIONAL COURTS AND


ADMINISTRATIVE COMMISSIONS

In its fifty years of operations, the International


Joint Commission between the United States and Canada has
acquired more Investigative experience than any other inter

national agency. While international courts have used com


missions of inquiry very sparingly, their limited experience

has nevertheless made significant contributions to the general

knowledge and development of the process. This chapter


deals

with the use of inquiry by the International Joint Commission,

the Permanent Court of International Justice, and the Inter

national Court of Justice.

International Joint Commission

In 1909 the United States and Great Britain created the

International Joint Commission to handle problems relating to

the boundary between the United States and Canada.. The Com

mission was an outgrowth of the International Waterways


Commission set up by the United States and Canada in 1905 to

investigate and report upon the conditions and uses of the

boundary waters.1 The former was proposed by the latter as

1 C. J. Chacko, The International Joint Commission Between


the United States of America and the Dominion of Canada (1932), d
p . 74-75; Papers Relating fco the Work of the International
joint Commission (1929), pp. l6$-104 (oETs publication contains
a collection ofarticles on the Commission).

223

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224

a government body with more extensive powers to handle boundary


2
problems. Subsequent negotiations led to the conclusion on
January 11, 1909 of the Boundary Water Treaty, sometimes
called the Root-Bryce Treaty which set up the Joint Commis
sion.^
Article 9 of the Treaty invests the six-member Joint
Commission with specific investigative and conciliatory duties

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

governments, or separate reports to their


respective governments.
In case the commission Is evenly divided
upon any question or matter...separate reports
shall be made by the commissioners on each side
to their own govern ment.
The Commission's Investigative authority covers differ
ences concerning the "common frontier." In view of the fact
that 2,000 miles of the boundary are in the form of
navigable waters, many and varied problems can develop.
Whatever contro versies arise out of the common Interest
that both parties have in the boundary such as navigation,
sanitation, power, and irrigation, are augmented by the
fact that sixteen states and four provinces with separate
jurisdictions are adjacent to the boundary.
Neither government is obligated to submit a dispute or a

question to the Commission. However, if one party desires to

submit a matter, the other would feel some embarrassment if

It did not acquiesce since the Treaty is construed as requiring

the mutual consent of both parties for the Commission to carry


4
out an investigation under Article 9* In support of the
need for mutual consent, it has been observed that
either party could refuse to allow an inquiry on its
territory or to pay
5
part of the Joint expenses. The practice of the Commission
^ C. J. Chacko, op. clt., pp. 241-24-5.
5 Ibid. A different view is presented by A. L. Newlin ,
(The Arbitration Policy of the United States Since 1920
p.3l6). Another commentator believes that the Article may
be intei*preted either way (Papers...of the International Joint
Commission, p. 244).
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226

has been described by one United States commissioner In the

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

under Article 9 is to investigate, make recommendations, and


7
issue a report. Each government is free to act upon the re
port as It wishes. At the time the Joint Commission was
established (1 909), the authority to make recommendations dis

tinguished it from other inquiry commissions. It will


be re

called that only two years before, delegates at the Second


Hague Conference had overwhelmingly voted down all attempts

to broaden the scope of the Hague commissions of inquiry


beyond fact-finding.
The nature of the composition of the International Joint

Commission is another characteristic which distinguishes it

from most bilateral commissions of inquiry, and undoubtedly

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

Water Problems of Canada and the United States (1958)$ P * 38.

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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

members select the presiding officer.10


The procedure of the Joint Commission under Article 9
has usually included on-the-spot investigations, many of them,

quite extensive and lengthy. While these inquiries often


have

been conducted by the Commission as a whole, in recent years

the tendency has been to delegate investigative work to ex

perts or boards set up for the purpose.11 This practice

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

appears to be commendable in view of the highly complex and


technical aspects of the problems the Commission handles and

because the Investigations sometimes take several years.


In
addition, this procedure Is helpful In carrying out the treaty

provision which specifies that all interested private groups

must be given a convenient opportunity to be heard. The


terms

of reference are usually broad enough for the Commission to


follow this procedure even if specific authorization is not
given to it at the time when a question is submitted. Be
cause a financial outlay will be required when additional
personnel are employed to make an inquiry, the two govern-
12
ments have the final word concerning their use.
Another
procedure used by the Commission has been to request the two

governments to establish boards needed for investigations.


To avoid a duplication of effort and unnecessary expense, the

Commission has sometimes been specifically directed to use


data gathered by national agencies and existing services and

time-consuming procedures were thus avoided and the investiga


tions were more comprehensive, more efficiently conducted, and
more economical than would have been possible by other pro
cedures." In this case, after the experts had held con ferences
with representatives of the localities involved, the Commission
as a whole held public hearings (international Joint Commission,
Report of the International Joint Commission on the Pollution of
Boundary Waters A $ 51A P. l6J"^
12 An idea of the large costs involved in some
investiga tions may be seen in the Passamaquoddy inquiry
where the Canadian government was committed to provide
$300,000 and the United States, $3 million (L. M.
Bloomfield and Gerald F. Fitzgerald, op. cit., p. 50).

I
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229

personnel.
In fulfilling the terms of the Treaty, both parties have

adopted national legislation enabling the Commission to issue

subpoenas and to compel the attendance of witnesses during its

proceedings. Upon the order of the Commission’s chair man,

application for this type of evidence may be made to the


1^
proper courts of either country. J
Regular sessions of the Commission are held twice
annually in Washington and Ottawa, and special meetings
may be called by the chairmen. A majority may conduct
hearings or other proceedings, but all commissioners must
be present for the preparation of a report. The Commission
has permanent offices in both states, and secretaries for
each section are responsible for keeping a permanent
record of proceedings and dockets. Both parties have
copies of all documents relating to the Commission's work.
The joint expenses are shared equally, and each government
pays the salaries and expenses of its own commissioners.
The overall record of the Commission in handling problems

under Article 9 has been outstanding despite the difficulty of

formulating recommendations on some of the more complex


lli
issues. Most of the twenty-three investigations 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

however, resulted In recommendations. In the case of the

Waterton-Belly Rivers handled in 1958* the commissioners were

unable to agree and submitted separate reports.^ Nearly

always, the substance of the recommendations of the Commis-


•I £1
sion have been approved and adopted by the governments.
Interim recommendations have also been complied with as a rule.

In one instance, the report of the Commission was not acted

upon by the governments, but a number of communities on both

sides accepted the recommendations.

A wide range of subjects have been investigated by the

Commission. Among them are the following: apportionment of

waters, dams, drainage, diversion of upstream waters in trans

boundary rivers, design of remedial works, irrigation, regula

tion of lake levels, navigation problems, power projects,

pollution of atmosphere and boundary waters, and utilization

5 This case arose as a result of Canadian plans to use the


water flowing from the two rivers into Canada in an irriga tion
project. Canada, the downstream state, considered that
beneficial use of the waters in Montana, where the waters
originate, would not be possible. The United States attempted to
develop plans for possible use of the waters on its side, but
the Canadian section maintained that beneficial use in the
public interest had not been proved. Canada proceeded on its
project.
•I£
In the case of the St. Lawrence River Navigation and
Power reference, extensive investigations over eight months
amounting to 55 hearings and some 8 ,0 0 0 typewritten pages of
testimony in 1920 and 1921 led to joint recommendations by the
Commission. These were subsequently reviewed and studied in
detail by both governments and a treaty was negotiated and
signed in 1932 on the basis of the recommendations. It failed
to secure ratification by the United States. A similar fate met
a second attempt in 194-1.

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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

Rainy Lake Levels, 1925 25 Pollution of atmosphere


Trail Smelter
Investigation, 1928 26 Drainage, diversion of
upstream waters in
Rousseau River
trans boundary rivers
Drainage, 1929
37 Waterways
Champlain Waterway, 1936 41 Apportionment of waters
Souris River, 1940 50 Regulation of
lake levels
Rainy Lake Watershed, 1940
51 Water resources of a
whole river basin, dam,
Columbia River, 1944 diversion of upstream
waters in trans-boundary
rivers, power projects
Pollution of Boundary Waters, 53 Pollution of boundary
1946 waters (This footnote is coimpleted on
the following page.)

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232

The content of the reports of the Commission has varied

as widely as the subjects which have been investigated. The


Commission has prepared draft treaties, suggested amounts of

compensations, recommended that the governments establish

special boards to handle particular problems or to follow up

on matters approved by the governments, and indicated

Sage Creek, 1946 54 Diversion of upstream


waters in trans-boundary
rivers, irrigation
Pollution of Boundary 55 Pollution of
Waters, 1948 boundary waters
Waterton-Belly Rivers, 1945 57 Diversion of upstream
waters in trans-
boundary rivers
Souris-Red Rivers, 1948 58 Apportionment of waters

Passamaquoddy Tidal 60 Dams


Power Reference, 1948
■ Air Pollution, 1949 61 Pollution of atmosphere

Water Resources of the St. 63 Water resources of a


John River Basin, Quebec, whole rivei* basin
Maine and New Brunswick,
1950
Preservation and Enhancement 64 Design of remedial
of Niagara Palls, 1950 works to preserve Palls
Lake Ontario Levels, 1952 67 Regulation of
Lake levels
St. Croix River, 1955 71 Water resources of
a whole river basin
Passamaquoddy Tidal 72 Dams
Power Reference, 1956

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233

appropriate levels for certain rivers and lakes. It has


also

made recommendations for resolving future differences arising

in connection with a particular situation it has investigated.

One of the most troublesome controversies submitted to


the Commission for investigation and recommendation has been
18
the question of the development of the Columbia River basin.
The investigation in this complex case, which took sixteen
years, shows the nature and magnitude of the Commission’s
operations.^ The matter was submitted to the Commission on
March 9, 1944. The report, issued in i9 6 0 , outlined a number
of principles for cooperative development of the entire basin,

which the Commission felt ought to procede as one whole pro-


20
ject. Negotiations between the two governments eventually
led to the sixty-year Columbia River Treaty signed on

January 17, 196l. 21


The Commission had been asked to determine in its inquiry

A summary appears in ibid., pp. 177-180.


^ Although some accusations have been made to the
effect that inactivity of the Commission caused undue delay,
the length of the investigation period has generally been
attributed to the complexity of the problem rather than the
failure of the Commission. See, for example, William E.
Kenworthy, "Joint Development of International Waters,1
American Journal of International Law, vol. 54 (i9 6 0 ), p.
600. As a matter of fact, most investigations of the
Commission extend over a period of at least several years.
20 IMd., P. 592.
21 United States, Congress, Senate, Foreign Relations
Committee, The Columbia River Treaty, Hearings, 87th
Cong., 1st Sess., March 8, 1961, pp. 27-2d.
The United States ratified the treaty in March, 1 9 6 1 .
Canada had not ratified it by mid-1 9 6 2 .

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234

whether further development of the water resources of the river

basin would be practicable and in the public Interest from the

points of view of both governments. It was in structed to take

into consideration irrigation needs, conserva tion, and

navigation, and, if it found that further works would be

feasible and desirable, it was to indicate how the interests on

either side would be beneficially or adversely affected.

The Commission was directed to estimate the costs of projects,

including indemnification for damages to property and remedial

works, and to suggest appropriate apportioning. Existing


OP
works located within the river system were to be investigated.

One important issue involved in the investigation was the extent

that Canada, the upstream state, could divert waters in British

Columbia from the Kootenay into the Columbia and thence into the

Fraser River. The United States maintained that it has an

overriding need of Columbia water for atomic energy production,

fisheries, irrigation, navigation, and power generation.

To help make the necessary inquiries, the Commission set

up the International Columbia River Engineering Board which

held numerous hearings in various places, and met with

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

officials of the governments and with the spokesmen of

industries in the basin. During the overall investigation,

several specific problems connected with the river basin were

submitted to the Commission. On the basis of the Engineering

Board's inquiries and suggestions on these matters, the Com

mission issued several interim reports to both governments.

There is every reason to believe that the investigative

activities of the International Joint Commission will con tinue

to be as important a function in the future as they have been

in the past. Since many of the boundary problems which

other articles in the 1909 treaty cover have been settled,


future controversies will probably come to the Commission
23
under Article 9. Among these problems are those that may arise
in connection with the trans-boundary rivers in the far
Northwest.2^
The same type of investigative authority that has been

so highly developed in the International Joint Commission has been

given to other commissions of an international character. None of

them, however, has yet made wide use of this authority.

Two such commissions are the European Commission of Human

Rights and the International Control Commission created by

the 1954 Geneva Conference that brought an end to the war in

23 L. M. Bloomfield and Gerald P. Fitzgerald, op. cit.,


p. 6 0 .
2^ Ibid., p. 64.

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236

Indo-China. One task of the latter commission was supposed

to be the Investigation of all armed actions taken by one part

of the divided country against the other. Until the end of

1961 no investigations had been conducted, although a number


25
of requests for them had been made. ^
The European Commission for Human Rights set up in 1951

by the Treaty of Rome is authorized to undertake investiga-


26
tions during its examination of petitions. The determination
of a need for such inquiries is to be made by the seven-member

subcommission which is selected to examine petitions. This

body also makes the inquiries. Only one investigation (a

two-week visit in Cypress in January, 1958)> has been made to


date.2^

International Courts

Although international courts have usually been authorized

to establish commissions of inquiry, they have not often done

so. Such commissions were established in only two cases: by

25 New York Times, September 20, October 2 5 , and November 18,


1961.
pC
The text appears in the American Journal of Inter
national Law, Supplement, vol. 45 { 1951), pp. 24-3i?• the
commission*s rules of procedure are reprinted in European
Yearbook (i9 6 0 ), pp. 383-3*07.
27 European Commission of Human Rights, Documents and
Decisions, 1955-1956-1957 (1959), P« 130 as cited in the
International and Comparative Law Quarterly, vol. 9 (i960),
pp. 315-3l6;Mew York times,January 13> 1958.

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237

the Permanent Court of International Justice in the Chorzow

Factory case; and by the International Court of Justice, in

the Corfu Channel case.2®

In the former, the Commission did not complete its inquiry

because the difference was resolved without it. In one other

case before the Permanent Court of International Justice,

relating to the diversion of the water from the Meuse River,

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

the Judges themselves made an on-the-spot investigation.2^


Because of the similarities in the authority and methods
of the Permanent Court of International Justice and the present

International Court of Justice in the employment of inquiry,


their experiences with the procedure will be considered to
gether. The following stipulation is to be found in the
Statutes of the two tribunals:
Article 50: The Court may, at any time, entrust
any individual, body, bureau, commission or other
organization that it may select, with the task of
carrying out an inquiry or giving an expert opinion.^
Neither the Statutes nor the rules of the two Courts
indicate what type of a situation would call for the use of a

commission of inquiry. It follows that at any time, "after

duly hearing the parties^'! in accordance with the rules of pro

cedure, either Court would be free to establish a commission.

A party to a dispute or a third state might suggest that the


Court make use of inquiry, but the decision would rest with the

Court itself. In two Instances the Permanent Court of Inter


national Justice refused to establish a commission of inquiry

even when it was requested to do so by a disputant.31


it also

29 Diversion of Water from the Meuse (Permanent Court


of International Justice, Series A/B, No. 70 2?93Z7) •
3° The rules of both Courts regarding inquiry are
also similar. The texts appear in Yearbook of the United
Nations, 1946-47, pp. 596 -608, and Permanent Court of
International Justice, Series D, No. 1 (1936), pp. 39ff.
31 The Oscar Chinn and the Free Zones of Upper Savoy and
the District of Gex cases (Permanent Court o7 International _
Justice, Merles A7I, No. 63 /l93j}7 and Series A, No. 22 /192 <jjg).

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239

declined to use the procedure when specific investigative


32
powers were included in the special agreement. The re
luctance of both Courts to engage in more fact-finding work
has left them open to the criticism that they have placed too

much credulence on the national administrative findings of


the parties.33 ^
The experience of the Courts with fact-finding commis
sions is too limited to indicate precisely the role of inquiry

in the international judicial process. The following


observa

tion by Dr. Scott made in 1920 while plans were being drawn
for the Permanent Court of International Justice has, however,

been substantiated by experience.


It may...happen that the evidence desired by the
court is not contained in a document which can be
produced by either of the litigating parties. It
may require an investigation.../ainSfthe
court, in the
interest of Justice, is authorized...to cause an in
vestigation to be made, to obtain an expert opinion,
and to choose the ways and means best calculated in
its opinion to produce the desired result.3^
So far, investigative authority has never been used in the

3s In the case of Free Zones of Upper Savoy


and .the District of Qex.
33 por instance, see the views expressed in the
Oscar Chinn case (Permanent Court of International
Justice, Series A/B, No. 63 /19347* PP. 84-86 and 116-
121), and Neill H. Alfora Jr., "Fact-Finding by the
World Court, Vlllanova Law Review, vol. 4 (1958), p. 52.
3^ James Brown Scott, The Project of a_ Permanent
Court of International Justice and Resolutions of the
Advisory Committee of Jurists (1920)7 p. 122.
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240

preparation of an advisory opinion.^5 The following


state

ment suggests the conditions under which the Court might see

fit to resort to it:


The Court does not say that there is an absolute
rule that the request for an advisory opinion may not
involve some inquiry as to facts, but, under ordinary
circumstances, it is certainly expedient that the facts
upon which the opinion of the Court is desired should
not be in controversy, and it should not be left to the
Court itself to ascertain what they are. 3°
The specific tasks of a Court-appointed commission of
inquiry have been set forth in an order. In the Chorzow

Factory case, the commission was directed to prepare a report

containing the opinion of each member about each of three


technical questions contained in the order. The
investigation

was to conform to the principles established by the decision

of the Court and the Court registrar was to provide the com

mission with the proceedings and documents relating to this

factory.^7 In the Corfu Channel case, the commission was


directed to examine specified evidence in order to make con

clusions on definite questions. Among them were the


following:

What type of mine injured the vessels? What were the


methods,

^ Neill Alford Jr. (o^ cit., p. 5 8 ) has


encouraged the use of fact-finding bodies in the
preparation of advisory opinions.
^ Permanent Court of International Justice,
Series B, Advisory Opinion Relating to the Status of
Eastern Carelia, N O . 5 (1923), p. 2S:
37 Permanent Court of International Justice,
Series A, No. 17 (1928), pp. 99-103.
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241

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

’the minefield? Could it have been laid without the knowledge of


the Albanian authorities?^3 The Court order further
directed':
The experts shall bear in mind that their task is
not to prepare a scientific or technical statement of
the problems involved, but to give to the court
a precise and concrete opinion upon the points
sub mitted to them.
The experts shall not limit themselves to
stating their findings; they will also, as far as
possible, give the reasons for these findings in
order to make their true significance apparent to
the court. If need be, they will mention any
doubts or differences of opinion amongst them.39
When the commission was unable to present "entirely conclusive"

answers in its first report, the Court issued another order

directing the members to go to the spot and "verify,


h4o
complete, and if necessary, modify their answers.
Unlike many inquiry commissions set up by international
political bodies, court agencies are limited to the task of

fact-finding. It is not probable that a court commission of


inquiry would be instructed at any time to engage in negotia

tions with the parties in the course of its work.

International Court of Justice, Reports (1948), pp.


124-127.
39 Ibid.
2(0 Ibid., (1949), P. 21.

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242

The consent of all parties concerned has been obtained

In both Instances when a Court has appointed commissions of

inquiry and also when it made an on-the-spot investigation it

self. In view of its reluctance to use its fact-finding

authority, it is not likely that the Court would conduct an

inquiry without the consent of the parties. In the Corfu

Channel inquiry, the cooperation of a third party, Yugoslavia,


4l
was secured in order to make a complete investigation.

The details of the composition of a commission of inquiry

rest entirely with the Court. It may select members from

outside its ranks, appoint some of its own Judges, or conduct

the investigation itself. On both occasions when a commission

has been appointed, the Court doing so selected members outside

its own ranks. For the Corfu Channel investigation, the Court

selected three naval officers from the list of experts made up

by four governments in response to a request by the Court


42
registrar before oral proceedings began.
^ The only major restriction imposed by Yugoslavia, which
had actually made an official suggestion that an on-the-spot
inquiry be made, was its refusal to permit an inspection of
certain repair shops on the ground of naval secrecy (Inter
national Court of Justice, Corfu Channel Case, vol. 5, p. 264).
4?
The following letter was sent to the governments of
Norway, Sweden, Denmark, and the Netherlands: "It is quite
possible that, in dealing with the Corfu Channel case between
/ G r e a t Britain and Albania/, which is to come before it
again in a few months1 time, the Court or the parties may find
it necessary to have recourse to experts on a number of
difficult points. In order to be able to be of assistance in
this matter, I am endeavoring to draw up a list of naval
officers who, if necessary, would be available for this kind of
work..." (ibid., p. 170).

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243

A certain amount of flexibility was given by both the

Permanent Court of International Justice and the International

Court of Justice to inquiry commissions in carrying out their

tasks. The Court rules (for both Courts) state only that the

tribunal should specify what formalities were to be observed.

The commission in the Chorzow Factory case was directed to

determine itself by a majority vote whether a visit to the

spot would be necessary. In the Corfu Channel case, one of the

Court orders directed the commission to proceed to make in

vestigations at Sibenik and Saranda and the surrounding land

and waters. Bound only by general directions, this commission

decided what sites to visit and what experiments to make. The

Court order specified that the parties had the right to make

suggestions to the commission about points for investigation.

In regard to the report of the commissions created by the

two Courts, certain procedures were to be observed. For one

thing, the reports or records of inquiries were to be

communicated to the parties. In the Chorzow Factory and Corfu

Channel cases, the report was communicated to the Court and to

the agents of the parties. Upon sending its commission to

Albania, the Court decided that the parties should be allowed to

submit written observations on the findings which would be

contained in the commission^ report. The Court orders for both

the Chorzow Factory and Corfu Channel investigations specified

that the reports were to be read at a public sitting.

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244

The Court rules do not Indicate what weight must be

given to the findings of a commission of inquiry. In the case

of the Corfu Channel investigation, the only one which was

actually completed, the Court observed in its judgment that

it could not "fail to give great weight to the opinion of ex

perts who examined the locality in a manner giving every

guarantee of correct and impartial information."^ The com

mission had concluded that it was "indisputable that if a

normal lookout was kept / a t certain pointa/ . ..and if the

lookouts were equipped with binoculars, as has been stated,

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

authority to employ commissions of inquiry. The Central

American Court of Justice, which functioned from 1907 to 1918*


4c
possessed the authority. Also the Central American Tribunal
set up in 1923 (never in operation), was given authority to

^3 International Court of Justice, Reports (1949)* P. 21.

^ Ibid., p. 161 .

^ The text of the Statute appears in William M. Malloy


(comp.), Treaties, Conventions, International Acts, Protocols and
Agreements Between the United States oflmerlca and Other lowers,
lt7k-l909, £en.~T>oc. 3 57, 6lst Gong., 2nd sess., vol. 2,
PP. 2 3 9 9 , 2402-24o4. The rules of the Court appear in
American Journal of International Law, Supplement, vol. 8
(1914), "pp. 198-210.

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245

appoint its own commissions of inquiry or to use the results


46
of commissions bilaterally established. Among specialized
courts which are authorized to use commissions of inquiry is

the European Court of Human Rights, which came into operation

in 1959. 47

The text of the treaty establishing the court appears


in Max Habicht, op. cit.. pp. 38ff.
47 The rules of procedure appear in European Yearbook,
vol. 8 (I9 6 0 ), pp. 383-407.

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PART II

CONCLUSIONS AND RECOMMENDATIONS

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CHAPTER X

CONSTITUTION, AUTHORITY, AND RESULTS OP COMMISSIONS

An effort is made in this part of the study (l) to show

how international inquiry at present relates to the original

concept, (2) to draw conclusions from the practice of the

commissions, and (3) to offer suggestions for the best use of

commissions. Whatever recommendations may be made will be

based either on the experiences of some forty commissions

which have been employed, or on proposals, official or un

official, which offer reasonable prospects of improving in

one way or another the practice of international inquiry.^-

The present chapter deals with problems external to the actual

functioning of commissions: questions to be investigated,

terms of reference, composition, secretariats, expenses, the

consent of the parties, provisional measures, the privileges

and immunities of commissioners, and the use and publicity of

reports.

1 The total of more than twenty inquiries by the Inter


national Joint Commission is considered as one in this figure.
Aside from some forty commissions about which rather
complete infoimation is available, material drawn from the
following has been referred to in the preparation of these
chapters: (l) a few commissions set up by states under bilateral
arrangements where scattered information which is available
touches on a point under discussion, and (2) certain United
Nations commissions which were not set up primarily as inquiry
agencies, where investigations were carried on in the course
of performing the main tasks.

247

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248

Nature of Questions

The nature of the subjects Investigated by International

commissions has varied widely. Many commissions have handled

matters bearing little resemblance to the type of question

originally envisioned for the procedure. All commissions

bilaterally established, with the exception of the International

Joint Commission, have been charged with the elucidation of facts

about a past event. Some of the commissions set up

by international organizations have also investigated condi

tions existing at the time of their operations.

Among the principal types of questions that have been

submitted to investigation, disputes arising from border

problems comprise the largest single category. These contro

versies have been highlighted by various events including the

following: actions by custom officials; invasions (par

ticularly where borders had not been definitely drawn); and, in

the case of the International Joint Commission, differences

about the uses of the water, land, and the atmosphere at the

common frontier. Inquiries frequently have been made to help

determine the future disposition of territory. A number have

had the purpose of discovering the circumstances surrounding

sea incidents. Three commissions have investigated the deaths

of prominent international figures. Since World War II, several

new types of subjects, including violations of human rights and

political freedoms, and intervention through

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249

subversion and aid to guerrillas, have been investigated by

international commissions. In general, it has been during the

examination of matters in this last category that commis sions

have been concerned with current conditions rather than, or in

addition to, past incidents. Investigations of ques tions in

this category have also drawn the most opposition from parties

directly concerned.

Commissions of inquiry have often dealt with the legal and

political issues in a dispute as well as the facts. This

practice constitutes one of the most striking departures from

the early concept of international inquiry as embodied in the

Hague Conventions. It originated, surprisingly enough, in the

first inquiry commission which, investigating the Dogger Bank

incident, took up the legal questions of fixing blame and

establishing the amount of reparation. Since that time, com

missions have elaborated many other legal issues including the

applicability and interpretation of treaties.

The work of commissions has been expanded into the

political field as well as into the domain of law. They have

dealt with requests for changes in the status quo in an area,

with subversive activities, with the organization of revolu

tionary measures in one state against another, and with the

relationship of domestic policies of a state to international

tensions. Whenever a commission has recommended solutions to a

problem or indulged in conciliatory activities it has

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250

necessarily concerned itself with the policy clashes of the

disputants and therefore handled political problems. Both legal

and political issues, rather than Just one of them, have been

examined and reported upon by a number of commissions. For

instance, both were considered by the League commission in the

Aaland IslandB dispute, by the International Joint Com mission

in its report on the development of the Columbia River basin,

and by the Franco-Siamese commission in examining a border

dispute. Other commissions, such as the Franco-Swiss and the

Belgian-Danish, have handled questions where, in addi tion to

facts, only legal issues were involved.

The practice of inquiry commissions to date indicates that

they may be helpful in legal and political issues as well as in

the elucidation of facts alone. It may, however, be noted that

questions involving solely legal issues (in addition to the

elucidation of facts), have been handled only by com missions

established bilaterally. One commission of the Organization of

American States refused to consider the sub stantive aspects of

the border dispute between Nicaragua and Honduras which involved

the application of an earlier arbitral award.

In assessing the propriety of authorizing or allowing

commissions of inquiry to deal with legal issues, it may be

noted first of all that their findings on points of law have

been treated with respect. This was true, for instance, in

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251

disputes involving (l) Germany and Lithuania (1931), (2)

Belgium and Luxembourg (193*0, (3) Italy and Greece (1956),

(4) Prance and Switzerland (1955)» and (5) Denmark and Belgium

(1952). Although it is natural to think of courts of justice

and arbitration tribunals as particularly fitted for the con

sideration of disputes over law, the main concern is always to

find solutions acceptable to the parties; if the parties are

satisfied with the action by commissions of inquiry, or if they

prefer it over a hearing by a court, outsiders can have little

to offer in the way of objections. Reasons why dis putants may

prefer to use a commission rather than a court in a controversy

involving law are (l) that the findings of the former will not

be binding, for it has no power to make a decision as a court

does, and (2) that it is free to offer compromise proposals,

and even in legal matters states may prefer a compromise rather

than a logical application of law. Although the competence of a

group of commissioners to deal with questions of law might seem

inferior to that of a court, this limitation may and ought to

be eliminated by appointing experts in law to commissions whose

work will involve legal issues. This has often been done.

Commissioners in cases of this nature have often had

distinguished careers behind them in international legal

affairs.

That a commission of inquiry may properly handle political

issues, in addition to factual, is also clear. Its work then

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252

becomes, In part at least, one of suggesting solutions to

policy differences, trying to reconcile or conciliate. The

successes of commissions authorized to conciliate noted in

earlier chapters is adequate Justification for the procedure.

There is logic in a procedure which ties this function of

conciliation to a commission which has ascertained facts, for

certainly a grasp of pertinent information is an essential

qualification for the submission of wise projects of recon

ciliation. To deal with political activities a commission

needs to have within it men with a background of diplomacy,

and usually it does. When a commission has before it both

questions of law and political issues, it must contain both

lawyers and diplomats. In general then, the composition of

a commission of inquiry should reflect the type of issues with

which it will be confronted.

To say that a commission of inquiry may properly deal with

any or all of the three types of issues— factual, legal, and

political— does not imply that it will always be success ful.

Even in its original and most essential function, that of fact-

finding, it has often found itself severely limited. For

instance, the Tavlgnano commission was unable to state

precisely whether the incidents under investigation took place

within or outside the territorial waters of TuniB. And, despite

a most comprehensive investigation, the circumstances

surrounding the death of Secretary-General Dag Hammarskjold

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253

still remain obscure. In practice, too, commissions have found

themselves hampered by the qualifications of their members who

may have been unwisely selected or whose de ficiencies have

resulted from the emergence of unexpected problems. The Franco-

Siamese commission in 1947, for instance, declined to consider

one aspect of the problem assigned to it because it did not

consider itself competent to deal with, the point. This

difficulty has been overcome by certain commis sions set up by

international organizations through the em ployment of experts.

The commission investigating Dag Hammarskjold’s death ordered

that metals from the plane wreckage be melted and tested in

laboratories by experts to determine whether or not any foreign

objects were present.

The International Joint Commission often employs

experts to handle aspects of their investigations.

Terms of Reference

An examination of the terms of reference for commissions

of inquiry reveals that quite often their tasks are rather

vaguely defined, particularly those set up by international

organizations. As a result, these commissions have en countered

considerable difficulty in interpreting their func tions. This

has left them open to charges that they exceeded their mandate,

and has sometimes been a major reason for reservations or

minority reports, especially in United Nations

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254

commissions. There have been Instances also when a commission has

been accused of interpreting its task too narrowly and not

fulfilling the function which the parent body actually entrusted

to it. This charge was made, for instance, about the work of the

Security Council's subcommittee in the Corfu Channel dispute.

Also, the subcommittee of the Security Council set up in 1959 to

examine a complaint by the Laotian government against its

neighboring state interpreted its task so narrowly that it was

unable to substantiate or refute the charges of aggression that

had been made. Neither the pre liminary debates in the Security

Council which touched on the functions of the proposed committee

nor the practice of previous commissions set up under Article 29

whose tasks had been similarly defined, appeared to Justify the

limited investiga tion of the subcommittee. It gave as its reason

the fact that it was established as a procedural organ of the

Security Council under Article 2 9 ; it is probably of greater

signifi cance that it was established over the negative vote of

the Soviet Union. The experience showed that a disservice is done

to the practice of international inquiry when a commission finds

it necessary to discuss such matters as whether it may seek facts

on its own initiative, or what its attitude should be in case

information were offered to it from sources other than the

government at the spot (as in the Laos case). It would be

desirable for the Security Council to be more

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255

explicit in defining the authority of a subsidiary


organ established under Article 29 or for a commission
set up under other articles of the Charter.
More than offsetting any advantage which might be sought

from vague or uncertain terms of reference, such as flexi

bility, are several serious disadvantages. In the first place,

some commissions, such as those named by the United Nations on

the apartheid and Laotian questions, have had to devote a

considerable portion of their preliminary meetings figuring

out what they were supposed to do. Even when they have

succeeded in making a correct determination, they have wasted

valuable time in the process. In the case of the General

Assembly’s Committee on South-West Africa, the vague terms of

reference were inadequate from a different standpoint: the

resolution clearly Instructed the committee to visit the area

with or without the consent of the Union of South Africa, yet

it failed to indicate the means the committee should use to

accomplish this mandate. As a result, the committee devoted a

great deal of time during Its early meetings selecting and

trying various measures. Another disadvantage in giving the

commission vaguely defined tasks is that the commissioners may

begin their mission with conflicting views about a funda

mental aspect of their work which should have been clearly

established even before they convened. Inadequate terms of

reference may also cause confusion and overlapping activities

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256

If more than one commission has been sent to the same vicinity

to perform different functions. Finally, uncertainty about a

commission's tasks may have an adverse affect on the attitude

of the receiving state or potential witnesses where the com

mission is expected to operate.

Among the points relating to the commission's tasks which

ought to be covered in the terms of reference are the follow

ing: a description of the matter precipitating the inquiry: an

outline of the issues which need elucidation; whether

recommendations are to be made; and whether there are restric

tions on the sources of information to be used. Among the

commissions which have been endowed with the most satisfactory

terms of reference have been the following: the commission of

the International Court of Justice in the Corfu Channel case,

the commission of the Organization of American States for the

Haiti-Dominican Republic dispute in 1950, the League Council's

commission in the Chaco dispute, the Belgian-Danish commission

in 1952, the Security Council commission for the Kashmir

dispute, and the General Assembly's commission to investigate

Dag Hammarskjold's death. In the last-named inquiry, the

commission was given the broad and general authority to in

vestigate all conditions and circumstances surrounding the

death aB well as directions to answer four specific questions.

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257

Composition

When the process of International Inquiry was originally

established as a means of peaceful settlement, two chief

considerations concerning the composition of the commissions

were their impartiality and the competence of the members. The

latter is, of course, difficult to evaluate objectively. The

nature of any individual's qualifications for a given case or

for a particular commission may be open to criticism even

though his general competence will seem indisputable. For

instance, the absence of lawyers in the membership of the

International Joint Commission in recent years has been


2
criticized. Even diplomats of ambassadorial rank may find

themselves unable or unwilling to examine the legal issues in

a question; and individuals trained in international law may

be obliged to emphasize political aspects of a problem outside

their competence.

The members of all commissions set up bilaterally and of

all commissions of international organizations, excepting the

United Nations and the Organization of American States, have

been appointed in their individual capacities and presumably

for their competence. The United Nations and the Organization

of American States, on the other hand, have, with only a few

2
L. M. Bloomfield and Gerald Fitzgerald, op. clt.,
pp. 61-62.

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258

exceptions, established commissions of representatives of


governments. It is true that consideration was given by the
League Council to the suitability of each nationality, but
the members were nevertheless appointed on an Individual basis.

For instance, it was not felt appropriate for a British


subject (or any other individual from a state with oil
interests in the Middle East) to be on the commission in the

Mosul case where territory with oil was involved.


In the early commissions of inquiry, the impartiality
of members was assured by the inclusion of a "neutral” element,

that is, a non-disputant. With one outstanding exception, the

International Joint Commission, this has been followed in every


3
international commission of inquiry.
The question of the neutrality or impartiality of the

commission has taken on a new aspect in the United Nations in

view of the Cold War and the division of the members into rather

definite blocs. The position of a government in rela tion to

these blocs is, therefore, a prime factor in determin ing the

commission^ membership. Usually the view which has prevailed is

that the subsidiary organ should reflect the views of the

various groups and Interests within the organiza tion, that is,

the membership must be "balanced." In the words

3 One writer noted that the confidence in


its .’recommenda tions may be enhanced by having only
representatives of the parties in equal numbers on the
commission (C. C. Hyde, op. cit., p. 155)•

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259

of one writer, the commissions should be miniature General


4
Assemblies. The Soviet Union has repeatedly advocated that some
of the permanent members of the Security Council be placed on
commissions. This view is based on the argument that the Security
Council*s membership is a reflection of the entire
5
membership in the organization. In practice, however, the
permanent members have usually been excluded from inquiry
agencies, although states known to have aligned
themselves regularly with certain permanent members have
often been appointed to commissions. For the Conciliation
Commission on the Congo, a new criterion was used: all
members were selected from the Asian and African states.
Since there are no indications that either the General
Assembly or the Security Council is likely to return to the
practice of the League in appointing members of commissions
in their individual capacities, it is possible that an infoimal

compromise might be achieved. One procedure might well be to


make selections from the United Nations Panel for Inquiry and

Conciliation. To date neither the General Assembly nor the


Security Council has used the Panel in appointing members of

inquiry commissions.
Either organ, in setting up a commission, could specify

^ H. Field Haviland, op. cit., p. 84.


5 L. Goodrich and A. Simons, op. cit., p. 194.

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260

the states to be represented on it and direct the Secretary-

General (or some other United Nations official) to make the

selections from the representatives of those states listed

on the Panel. In this way, the competence of the commissioners

would be assured and a commission meeting the requirements of

"balanced" membership could be constituted.

Another aspect of the composition of commissions con cerns

the role of the parties in selecting the members. Un like the

commissions selected under bilateral agreements, those named by

international organizations are chosen by a procedure in which

the parties to a dispute rarely have a hand. Two exceptions have

been the League's commission in the Sino-Japanese dispute, where

both parties were consulted before the composition was

established, and the United Nations commission in the Kashmir

dispute, to which India and Pakistan each named one member. To

assure greater confidence of the parties in the commission, it

might be advisable to devise an arrange ment, formal or

informal, whereby the parties have a voice in selecting the

commission's members. Obviously such a step would be of no use

when an investigation is opposed by one of the parties. Serious

consideration should, however, be given to the observation of

Madame Bastid that the principal

^ The Security Council's Committee of Good Offices on the


Indonesian Question, which later carried on investigative
activities, was composed of three members, two named separate&y
by each party and a third selected by the other two members.

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261

authority of a bilateral commission comes without doubt from

the common confidence of the disputants in the personnel,


7
capacity, and experience of the neutral commissioners. She haB
noted, furthermore, that in this regard, a commission chosen
under a bilateral agreement is different from one in the
United Nations which must have the confidence of the majority
of the Security Council or the General Assembly, but
8
not necessarily of the disputants.
It is not possible to point to an ideal size for com

missions of inquiry because the requirements differ from case to

case. The primary consideration is to establish an agency with a

sufficient personnel to enable it to accomplish its tasks. Other

criteria, too, can be important. For instance, the membership of

commissions set up by international organiza tions must, as a

rule, be large enough to permit adequate representation of all

interests if the subsequent report is

to have any value as an impartial document.


In practice, the size of commissions has varied. Nearly

all selected under bilateral agreements have been composed of

five members, although several three-member and one nine-

member (the Chaco dispute) have been used. The commissions of

the League of Nations consisted of either three or five

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

commissions1 work covered a much larger geographical area than

in previous investigations. Four-member groups have often been

used in the Organization of American States. In the United

Nations, commissions have ranged from three (inquiries in the

racial situation in the Union of South Africa and in the Corfu

Channel disputes) to fifteen m e m b ers.^

Selecting alternates for members of commissions in the

United Nations and in the Organization of American States has

become a fairly common practice. The need for alternates was

recognized in the United Nations in 19^7 during a discussion

of a request by several states that alternates be paid sub

sistence and travel allowances. Since that date, the policy

has been to pay the expenses of alternates when the Security

Council or General Assembly deems them to be necessary. The

resolution establishing a commission usually notes whether

the governments represented on the agency are to name

alternates. One point in favor of having them is that they

can facilitate the commission^ work, especially in the field,

by participat ing on working teams.

One development in international commissions of Inquiry

during recent years has been the enlarged size of the delega

tions attached to the several commissioners, especially in the

United Nations. In addition to alternates, members often

^ The largest coimiilssions were constituted for


the Palestine (eleven) and the Congo (fifteen) missions.

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263

have diplomatic and military advisers, experts, and secre

tarial staff members. These individuals perform various tasks

in the field. The military advisers have been particularly

useful when hostilities have been in progress; at times they

have negotiated and supervised cease-fire agreements.-*-0

The importance attached to the delegations is shown in

the experience of the United Nations commission for India and

Pakistan where the size originally ranged from one to five for

each member. At its initial meeting, the commission as a whole

decided that the one-member delegations attached to two of its

commissioners were insufficient for the tasks ahead.

A resolution was adopted r ecommending that the necessary Btaff

be appointed by the governments of the delegations so Chat each

delegation could give full representation and adequate

assistance to the commission and its subsidiary bodies.11

The resolutions establishing the commissions usually have

stipulated that each member is entitled to appoint the

personnel necessary to assist him. Before adopting the reso

lution which established the commission to investigate the

Greek frontiers incidents, the president of the Security

Council noted the desirability of limiting the staff of each

10 This arrangement worked, for example, in the


Honduran-Nicaraguan dispute in 1957•
11 The small size of the delegations of the members of
the Security Council^ Committee of Good Offices on the Indo
nesian Question imposed limits on the work of this agency,
especially when it received a number of requests to make in
vestigations.

i
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264

member as much as possible. Later, the commission agreed that

each member's staff should be limited to three advisers or

experts.

Type of Commission

Experience to date with commissions of Inquiry does not

substantiate Secretary of State Bryan's position In favor of

permanent commissions, especially under bilateral arrange

ments. The main argument advanced in support of permanent

commissions has been that they would be immediately available

to handle disputes. Yet, as shown in an earlier chapter, the

membership of most commissions under bilateral agreements has

not been kept up to date, a fact which has detracted sig

nificantly from contentions in favor of permanent agencies.

A more practical bilateral procedure might well be for states

to establish commissions as needed by selecting members from

the United Nations Panel on Inquiry and Conciliation. These

individuals are available for service so that any dispute re

quiring urgent action could be expeditiously handled. As a

matter of fact, there has not been much urgency in the selec

tion of commissions under bilateral arrangements, especially

in recent years. Several of them have handled matters which

took place a number of years earlier.

There is some evidence in the practice of international

organizations that a permanent commission would be an asset

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265

for cases where there is a need for an agency to depart im

mediately for the scene of the fighting. The permanent Inter-

American Peace Committee, for example, has been available to

make investigations at any time either by its own decision or on

the request of the Council of the Organization of American

States. While this agency was not established as a permanent

commission of inquiry, it has in practice often served as one.

In the United Nations, however, the establishment of a perma

nent inquiry commission may not be the most practical method for

securing fast action In disputes. For one thing, there would be

the obstacle that no permanent commission could be so

constituted that it would meet the requirement of "balanced"

membership for the diverse problems to be brought before it. In

the United Nations, finding ways of expediting the func tioning

of ad hoc commissions would probably be a more profitable

undertaking. Since one of the difficulties has been the

establishment of the commission and convoking its initial

meeting, the Secretary-General could be authorized, as he has

been for some commissions, to convene the first meeting.

Deadlines for states to appoint members ijo commis sions might

also be set by the Security Council or the General Assembly. In

constituting the commission for the Kashmir dispute, the

Security Council set a deadline for the selec tion of the fifth

member, which was to be done by the states already named to the

commission; when the deadline was not met,

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266

the Security Council made the appointment. Finally, if the

situation were extremely acute and there were an intolerable

delay in the establishment or departure of an inquiry commis

sion, the Peace Observation Commission might be used

temporarily. Although its function is confined to observation,

as noted earlier, its.findings could be used by the inquiry

commission upon its arrival. Neither these procedures nor a

permanent commission of inquiry would, however, eliminate delays

which have been caused by requests from the authorities


12
of a state for postponements of visits.
There is one final advantage in ad hoc commissions regard

less of the initiating agency: there is more assurance of the

capacity of the members to handle all aspects of a question at

hand, even when specialized knowledge is required. For example,

in the investigation of incidents at sea, some ad hoc

commissions (as for the Dogger Bank inquiry and the Corfu

Channel case) have consisted exclusively of naval officers.

It would be unlikely that a permanent commission under a bi

lateral treaty would ever include a naval officer. The im

portance of securing Investigators with specialized knowledge

is further demonstrated in the practice of the International

Joint Commission. Even this body, which is continually at work

on boundary problems, finds it desirable to call on

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

outside experts to help conduct inquiries.

Consent of the Parties

For many years after the appearance of international

inquiry as a method of peaceful settlement, there was no thought

of an investigation being made without the consent of all

parties concerned. Even when the League of Nations began to use

the procedure in treating disputes, inquiries without the

consent of the parties were rarely contemplated either by

officials or commentators. In practice, such consent was secured

every time an inquiry within the League was undertaken; this did

not, however, always carry with it a permission for a commission

to operate on the disputants’ territories. Several United

Nations commissions have been established without the consent of

the parties and when it was clear that cooperation from one or

more of the disputants would not be forthcoming. One commission

(the General Assembly's committee on South-West Africa), which

was directed to visit the territory with or without the consent

of the party concerned, could not fulfill this aspect of its

mandate.

Experience to date indicates that Investigations, even

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

appear, however, that instead of a commission devoting its time

to seeking admittance to areas involved, the task should be

left to the Secretary-General. Without this responsibility, the

commission could devote more time to investigating other

available sources of information. In view of the large ex

penses involved in making inquiries, especially when a great

amount of traveling is essential, it would appear desirable

that the Security Council or General Assembly give more con

sideration to the question as to whether the establishment of a

commission of inquiry over the opposition of disputants will be

profitable.

Provisional Measures

Recommendations for provisional measures during an in

vestigation, which are essential if hostilities are under way,

have been made and supervised in several ways. When the League

of Nations, the Organization of American States, and the United

Nations have not utilized inquiry commissions for the purpose,

they have ordinarily sent separate commissions to perform this

task. The actual supervision of the provisional measures has

usually been done by a separate agency or by special advisers

attached to the inquiry commission.

When armed conflict has occurred (or is likely to break

out) in a dispute which is to be investigated by a commission

under a bilateral treaty, it is possible to include provisional

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269

arrangements in the special agreement. This was the procedure

of the parties in the Bolivian-Paraguayan dispute in 1929*

Provisional measures of a different character have been

recommended at times by the International Joint Commission in

order to prevent further deterioration of a situation while an

investigation was being made.

Secretariat

The size and role of the secretariat (or staff) attached

to inquiry commissions have been a problem, although not a

serious one. Usually the staff of a commission under a bi

lateral agreement has been small, perhaps one or two secre

taries named jointly by the parties or by the commission. An

unusually large staff of thirteen supplied by the Pan American

Union and the United States government was used by the 1929

commission in the Chaco dispute. The staffs of League com

missions were small, usually numbering two to three members.

The staffs traveling with commissions of the Organization of

American States have also been small, generally three or four

members. In the United Nations, however, the practice haB

been quite different. For the Palestine mission, the commission

had a secretariat varying from fifty to sixty persons, and for

the Greek frontiers dispute, there were twenty-seven members.

When the latter group left Greece, a secretariat consisting of

thirteen persons was left to serve the subsidiary organ. A

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270

few United Nations commissions have been accompanied by smaller

groups. The commission investigating the Angola question was

accompanied by one secretary, and the committee on South-West

Africa had a six-member staff while operating in Africa.

The staffs of United Nations commissions have on various

occasions included the following personnel: interpreters;

political, economic, social, and press affairs officers;

raotion-picture operators and photographers; documents officers;

area and legal specialists; verbatim reporters and steno-

typists; secretaries; administrative officers; transportation

and accommodation officers; and conference officers. Like

the League of Nations, the United Nations recruits some of its

staff locally, especially interpreters, where it is possible to

do so.

The secretariats of commissions established by inter

national organizations have been active not only in the more or

less routine jobs that facilitate the operations of in quiry, but

it also in the substantive part of the commissions' work. For

instance, the factual account of the report sub mitted to the

General Assembly by the Palestine commission was prepared by the

secretariat of that group. Also, the secretariat of the temporary

commission on Korea carried out many of the investigations of

incidents reported during election registrations.

The principal problem which relates to the secretariats of

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271

commissions Is the precise role which they should be expected to

fill. Clearly they should do the routine and relatively

unimportant tasks which will leave commissions free to devote

themselves to major activities. They may properly prepare

background material and "working papers/" an undertaking which

is particularly significant in the United Nations where the

disputants have not always submitted Information, as they did

for League of Nations commissions and as they still do for

commissions established under bilateral agreements. They are

equipped to serve as a liaison between the commission and the

organization itself, the parties, and the press. They should

translate speeches and documents, prepare and circulate records

of meetings, arrange transportation, and handle the budget.

Their experts should be available to commissioners for consults*?

tion. But to what extent should secretariats become involved in

substantive matters or be allowed to carry on investigations?

This is a subject which should be constantly reviewed in order to

prevent the secretariats from Infringing on the work of the

commissions themselves which are, after all, responsible for what

is done. As an effort has been made to strengthen the

secretariats, the danger has increased that they will be per

mitted to overreach. This is especially true in the United

Nations where the personnel of commissions has been improved

by using over and again persons with experience on the staffs

of investigating bodies, and by exchanging information.

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272

The point has been well argued by Suzanne Bastid that,

although a small staff may cause certain inconveniences to a

commission, it will preserve the independence and authority of

the agency.^ This undoubtedly is true, but surely the choice

is not between a secretariat which is too small to do the work

that needs to be done and one which is so large and so well

supplied with ability that it will take over or be given duties

which properly belong to the commission itself. Although the

United Nations and other organizations which set up commissions

ought to feel free to provide secretariats of varying size to

handle different types of problems, they should always be

alert to avoid either extreme and to make available able staffs

large enough to do what is expected of them but not so composed

that they will engage in activities properly belonging to the

commissions.

Expenses

The costs of commissions of inquiry have not received as

much attention as they deserve. They are an important factor in

the operations of commissions, especially those set up by

international organizations, where the total expenses are

large. The costs of investigations by international organiza

tions have been borne by either the organization or the

parties. The disputants contributed to the expenses incurred

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

the members (and alternates) are paid out of the organization's

funds. The costs of commissions of the Organiza tion of American

States have been a problem because when funds of the organization

are used to pay for investigations, they must be diverted from

other fields. Unfortunately, too, several factors boost the

expenses of these agencies. For instance, dispatches from the

field must be sent by expensive commercial cable because the

Organization of American States has no pouch service.1^ One

recommendation has been to establish in the Organization an

"ample peace maintenance

fund" to be used, among other things, for investigations. 17

When the Inter-American Peace Committee established itself as

a fact-finding committee in 195^* it specified that the

interested parties would share the expenses incurred in the

investigation.

The costs of commissions under bilateral treaties have

been handled according to the provisions of the 1907 Hague

Convention. They have been shared equally by the parties.

When the P e r m a n e n t Court of International Justice


ordered an inquiry or visited the scene itself, the parties shared
the costs (Manley 0. Hudson, Permanent Court of Inter
national Justice 2i93ii7> P- 506). ”
U. S., Congress, Senate Subcommittee on American
Republics Affairs of the Committee on Foreign Relations,
United States -Latin American Relations, Doc.;12g, 86th Cong.,
2nd Sess. (i9 6 0 ), p. 243.
17 Ibid.

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274

Diplomatic Privileges and Immunities

Although the status of commission members and their

staffs has not always been clear, especially in regard to

commissions under bilateral treaties, It is always essential

that delegations have certain diplomatic privileges and im

munities for the duration of the investigation. This status

should be accorded to all commissions even by third states.

The members of the Lytton commission, for example, enjoyed

diplomatic status while traveling through the United States.

The status of members of the commissions established by

the United Nations, the Organization of American States, and

the League of Nations has usually been determined in the

arrangements made by the organization itself in consultation

with its members. Members of the United Nations commissions

are covered by Section 22 of the Convention on the Privileges

and Immunities of the United Nations approved by the General

18
Assembly In 1946. In the same year the General Assembly

recommended that persons performing missions by order of the

International Court of Justice should be accorded a similar

status. Any special arrangements on privileges and immunities

that have been required for United1Nations commissions, have

been handled by the Secretary-General. In the case of the

International Joint Commission, both states have extended

diplomatic privileges and immunities to the members.

United Nations Doc. A/43 (1946), pp. 687-6 9 3 *

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275

Use and Publicity of Reports

The uses made by the League, the Organization of American

States, the International Joint Commission, and the Inter

national Court of Justice of the reports of their commissions

of inquiry confirms the argument of early supporters of the

procedure that an impartial investigation could establish the

facts and clear the path for peaceful settlement. Nearly every

report from an investigating commission set up by these

organizations has been used as a basis for subsequent action by

the organization or by the disputants. While a settlement of

the dispute in question did not always follow, it usually

seemed clear that tensions had been mitigated.

As for commissions established under bilateral agreements,

the investigative phase of the work has usually provided the basis

for recommendations to the parties and probably to a settlement,

as noted in earlier chapters. In the United Nations, several uses

have been made of reports. Many have been used

as bases for action by the Security Council or General Assembly

even if this action simply consisted of recommendations to

member states. Others have served the purpose of helping

individual members form their views toward the parties and

issues in the matter at hand. Some reports have been referred


19
to in later years in connection with new problems. ^ At the

^ For instance, during the consideration of the applica


tion by Bulgaria for membership in the United Nations in its
early years, one of the points brought out was the finding of
(This footnote is completed on the following page.)

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276

least, the findings, which often have received world-wide

publicity, have allayed rumors and cleared away some of the

confusion which had surrounded the controversies in question.

The reports of commissions set up by international

organizations have always been made public although they have

sometimes been presented in closed sessions. Some of them,

such as the reports of the Lytton commission and the commission

which Investigated the 1956 Hungarian revolution, have re

ceived world-wide publicity. Early commissions bilaterally

established read their reports in an open meeting, but most

such commissions since 1919 have not published their reports

or proceedings. Exceptions have been the Bolivian-Paraguan

commission of 1929 and the Belgian-Danish commission in 1952.

The Institute of International Law, in its 1961 regula

tions on the procedure of international conciliation, recom

mended that upon the conclusion of the commission’s task, the

parties consider whether or not to authorize the total or


20
partial publication of the documents. Also, it was provided

that the commission might make suggestions on the subject.


While the desire to refrain from publicizing the documents of

the Security Council’s commission that Bulgaria had given aid


to guerrillas operating in northern Greece.
20 American Journal of International Law, vol. 56 (1962),
pp. 739-743. Article l4, which suggests that the com mission's
documents be deposited in the archives of a govern ment or of an
international organization chosen by the parties, notes that the
depositary authority should respect the arrangements on secrecy.

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277

commissions which failed to reconcile the parties is under

standable, on the other hand, the publication of the reports and

other documents, whenever possible, of successful delibera tions,

might encourage the use of international inquiry and conciliation

and be helpful to future agencies. In fact, a decision not to

publish the reports of successful commissions should be confined

to the rare instances when this action would endanger the

national security of one of the parties. A general

endorsement of one of the principles in 1961 resolution of the

Institute of International Law on international concilia tion

would cover situations where a state hesitated to publish a

report for the reason that it might imply acceptance of the

considerations of law or fact leading to the settlement. The

resolution specifies that "the acceptance by one party of a

proposal of settlement in no way implies any admission by it of

the considerations of law or of fact which may have in-


21
spired the proposal of settlement...."

21 Ibid., p. 739.

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CHAPTER XI

COMMISSIONS IN OPERATION

In the course of an investigation, a commission of

inquiry engages in many different operations during the per

formance of which it frequently encounters difficulties. It is

the purpose of this chapter to analyze the actual opera tions of

commissions and to find out how those difficulties have been

met. The following phases of a commission’s work will be

considered: sources of information, publicity, records

cooperation of local authorities, the role of special personnel

the length of the investigation, the preparation and disposi

tion of reports, and the use of subsidiary organs.

Sources of Information

Commissions of inquiry have generally been quite free to

decide upon the sources from which they will seek and receive

information. Only a few restrictions have ever been placed on

their discretion in this matter, and these have not be un duly

limiting. For example, the general geographical area in which

a commission might investigate has been specified in advance;

at times a commission has been specifically directed to

include certain sources in its examination. Some commis sions

with very vague terms of reference have refrained from

278

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279

utilizing sources which might have proved useful for fear of

being criticized for exceeding their authority. For instance,

in the investigation of the Laotian question, no special effort

was made to secure information from the authorities against

whom the charges of aggression had been made; and the

commission investigating the Spanish question was uncertain as

to whether it could visit Spain if it so desired.

In practice commissions usually have taken the initiative

in seeking more information than that which had been submitted

to them voluntarily. Although they have utilized many dif ferent

sources, there has been a tendency for commissions handling

questions of a similar nature to seek essentially the same type

of material. When disputes have involved armed con flict, for

instance, the tendency of commissions has been to go to about

the same kind of sources. Commissions that have been unable to

visit certain areas, have sought information from similar types

of persons or places: refugees; governments with diplomatic

representation in the area in question; offi cials of

international organizations who were on the scene at the time;

and unofficial eyewitnesses such as missionaries or the

personnel of non-governmental organizations.

All commissions to date have examined both written and

oral material although in the work of many commissions bi

laterally established and a few set up by organizations, the

oral phase has consisted solely of questioning agents or

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280

liaison officers. The most limited investigation made by an

organization's commission from the standpoint of sources used

was that of the Security Council's subcommittee on the Corfu

Channel dispute. Its oral examination was confined to asking a

few questions of the two disputants and one third party.

Oral testimony has been one of the most valuable sources

of information to commissions, and the number of witnesses

heard by a single agency has ranged from a few into the

hundreds. The gathering of oral testimony, especially from non-

official sources, has, however, often been accompanied by

problems relating to the selection and hearing of witnesses.

Individuals, for example, have appeared before a commission (or

sought hearings) to secure help in locating relatives or

seeking their release from prison.1 When a large number of

potential witnesses have been available, it has been necessary

for commissions to be selective. Commissions have also had to

establish effective procedures for taking oral testimony. Since

the questioning of witnesses has been a more fruitful source of

information than written statements prepared by them, valuable

time has been lost when witnesses have been allowed to read

statements in full, especially when the material presented was

already available from the documents

1 The United Nations committee for the Palestine ques tion


while still in New York received nearly 21,000 communica tions
from Jewish displaced persons all desiring to go to Palestine.

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281

2
jlaa&d;' in the hands of the commission. Reports of the in
timidation or disappearance of witnesses have also reached

commissions. For this reason they have at times held private

hearings without the presence of governmental authorities and

without publicity as to the content or sources of testimonial

evidence. Other commissions, such as the United Nations

agency investigating Dag Hammarskjold’s death, have conducted

public hearings, but made it clear that they reserved the

right to hold private hearings at any time.** To facilitate the

commission’s work in securing testimonial information, it

would appear advisable that policies concerning selection,

interrogation, and publicity of witnesses be established and

made clear to interested parties before this phase of the work


5
gets underway. '

The majority of commissions have visited the spot, or

nearby vicinities to obtain information. Of more than thirty

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

commissions set up by the United Nations, the League of Nations,

the Organization of American States, and international courts,

only two remained at the organization's headquarters for the

entire investigation. This conforms to the intent of the first

proponents of international inquiry at CChe Hague in 1899* By

contrast, however, only a few commissions, bi laterally created,

two before and one after World War I, have visited the spot.

This may be explained in a large part by the fact that several

called into operation after World War II handled incidents which

had occurred a number of years earlier.

In cases where the parties have cooperated, the bulk of

Information has come from their officials or has been gathered

on their territories. The governments of the parties have

usually submitted documents to the commissions outlining their

positions. When clarification or additional material from the

parties has been sought during an investigation, the commis

sioners have turned to the agents or to liaison officers.

The commissions of the Organization of American States (and a

few others) have met with high governmental officials immedi

ately upon their arrival in a state to discuss the substance of

the problem and to explain their proposed investigative

activities. Most commissions, whenever possible, have secured

information from border guards, prison officials, custom

officials, local authorities, and 0 their; government spokesmen

who have been connected with the matter under investigation.

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283

Commissions have not confined their contacts in the field

to administrative authorities. When the dispute has involved

hostilities, captured military personnel have been interviewed

in prisons and in hospitals, and civilian and military eye

witnesses have been heard. Residents of border areas have been

interviewed when questions have involved the disposition of

territory. For questions relating to political freedoms and

human rights, commissions usually have examined members and

leaders of opposition parties, Journalists, labor leaders,

students, and businessmen. The International Joint Commission

has a long record of hearings with private citizens and busi

ness officials concerned with the subject of the inquiry.

In addition to the material supplied by the parties or

gathered in their territories, commissions have found other

important sources. When investigating charges of violations of

human rights or political freedoms, commissions have taken

great care to examine refugees and political exiles. In the

Palestine investigation, displaced-persons camps were visited.

The official views of third states have been sought about

territorial questions. Diplomats, private citizens, and

representatives of governmental or non-governmental organiza

tions who observed particular incidents have also contributed

to commissions* knowledge. A few commissions have examined the

findings of national inquiries; this is a common procedure

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284

for the International Joint Commission.^ Research into docu

ments has been necessary for some Investigations. The Spanish

commission examined documents from the German archives; other

commissions have spent part of their time in libraries collect

ing background material.

Surveys of crucial geographical areas have been made by

air, ship, car, horseback, and on foot. Examinations of objects

with special significance, such as mines, shipping

installations, and captured military equipment, have been made.

The International Joint Commission has even constructed

detailed models in order to observe and test the effectiveness

of implicated projects.

Unsolicited communications have often been received by

commissions. In the United Nations, this material has some

times been so voluminous that the commission's secretariat has

compiled lists so that it would be easier to decide which to

examine.

Rules of Procedure

A problem debated by the delegates at the Hague Conference

in 1907 has often come up in the establishment of commissions:

how extensive should the rules supplied a commission be to

The commission investigating Dag Hammarskjold's death


examined the evidence submitted to the Rhodesian Board of
Investigation and to the Rhodesian commission of inquiry and
concluded that it was not necessary to duplicate the work
already done.

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285

enable it to operate smoothly without at the same time hamper

ing it? The experience of inquiry commissions has shed some

light on this. It has shown that certain rules are desirable,

and it has indicated the items which ought to be covered by

rules.

The nature and extent of the rules a particular commission

needs, depends to a large degree on its size and the scope of the

tasks entrusted to it. Commissions established under bilateral

agreements have emphasized the flexibility and in formality in

their procedures. As the chairman of the Franco-Swlss commission

observed about its deliberations in 195^-55J an effort was made

to avoid any resemblance of a tribunal; the members sat with the

agents around the same table to study together the two disputes

and neither the members nor the agents wore robes.^

The experiences of the Franco-Swiss and the Franco-

Siamese commissions,neither of which adopted formal rules,

indicates aspects of procedure which they considered needed

to be regulated by informal agreement. At the conclusion of

the written phase and in preparation for the debates, the

Franco-Swiss commission proposed to the agents that it meet

in closed session except for the first meeting. The Franco-


8
Siamise commission also decided on closed meetings. Both
7
F. M. van Asbeck, op. clt., p. 212.
Q
The Belgian-Danish commission in 1952 also held closed
sessions.

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286

agencies also decided to restrict publicity. The Franco-Swiss

decided to refrain from releasing information to the press

except in case of urgency and only with the consent of the


9
entire commission. The Franco-Siamese commission agreed to issue

summary communiques. The Franco-Swiss commission decided to

prepare very brief protocols of its proceedings, in order to fix

the direction of its work, rather than to include the full

proceedings. The Franco-Siamese commission agreed that the

parties could add to the documents already submitted at any time

during the proceedings. Both commissions made use of some of the

1907 Hague rules.

Commissions established by the United Nations have often,

although not always, felt the need for more procedural rules

than commissions under bilateral agreements have customarily

adopted. Some of the former have operated smoothly without

written miles, but others have encountered difficulties. The

Security Council's committee of good offices on the Indonesian

question began its work without written rules, but later

decided that it would facilitate its operations by adopting

some. The commission in the Greek frontiers case did not

adopt written rules, but throughout its operations it encountered

problems on procedure which had to be resolved by a special

subcommittee and, at times, by the whole commission. At one

^ The press had shown interest in some of the documents


submitted to the Franco-Swiss commission.

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point, it was necessary to refer the matter of procedure to

informal discussions by representatives of the permanent members

of the Security Council on the commission. Thus it appears that

even if a commission decides not to have written rules, as a

precaution against later difficulties and delays, it is

desirable that each agency establish basic practices at the

outset of its work,, The availability of at least a few basic

rules will have the advantage, too, of facilitating the work of

a commission whose members are, for personal or political

reasons, incompatible. In the Eritrean investiga tion, in spite

of the adoption of procedural rules by the main commission,

dlssention arose when a subsidiary body failed to follow the

main commission's rules on rotating the chairman ship. Then,

too, when the composition of a commission changes during the

investigation period, the presence of certain rules or policies

will help provide better continuity. Finally, the adoption of

rules based on the experiences of previous com missions will

help avoid problems which a new and Inexperienced commission

will not foresee.

The experiences of different commissions set up by inter

national organizations suggests that, since problems are

frequently encountered in the following procedural matters,

commissions should have an understanding on these items at the

beginning of their operations: voting methods, publicity,

relations with liaison officers, the handling of records,

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288

chairmanship, and the gathering of testimonial evidence.

Prom the Dogger Bank dispute to the present, commissions

have spent much valuable time on procedural matters during

their preliminary meetings. The report of the United Nations

commission on Eritrea attributed in part its failure to

present a majority report to its loss of time debating pro

cedure, so that it gave insufficient attention to substantive

matters. Larger commissions have found it useful to entrust

procedural matters to special subcommittees (the Palestine

commission followed this practice).

Any commission's task in devising procedural rules for

itself will be facilitated if it has received some guidance in

advance, either from the organ establishing it or from a study

of the rules of previous agencies. Experience has shown that

this kind of help may be made available without unduly limit ing

a commission's freedom of action. For instance, the resolutions

establishing a number of United Nations commissions have

specified that the decisions of the agencies will be taken by

majority vote. The commissions of the Organization of American

States are directed to elect their own chairman.

Since the question of electing a permanent chairman or having

the chairmanship rotate has been debated by United Nations

commissions, it would be wise for the Security Council or

General Assembly to specify a policy on this point.

A most useful practice in the United Nations has been

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289

the preparation by the Secretariat of a set of provisional

rules for the consideration of the commissions. These rules

are especially helpful since they have been drafted on the

basis of the experiences of previous commissions and the

Security Council.'10 Although commissions are not obligated to

use them (the Greek frontiers commission did not), the pro

visions may serve as a guide to commissions (as in the case

of the commission for the Kashmir dispute).

Length of Investigations

With the exception of the investigations of the Inter

national Joint Commission which have sometimes taken many

years, the different inquiries have ranged from less than two

weeks to over a year. Commissions bilaterally established

usually worked with a time limit of one year, and finished

before the deadline.11 Most of the General Assembly's

commissions have been directed to present reports at the next

In this connection it is interesting to note that in


a 1950 report, a subcommittee of the General Assembly's Interim
Committee wisely rejected the formulation of standard rules to
be applied to all commissions because of differences in their
sizes, tasks, and meeting places which would require varia tions
in methods of operation (United Nations Doc. A/AC.18/114 /195Q7>
p. 3). However, the Secretary - General has published a useful
compilation of rules adopted by commissions up to 1 9 5 0 .
(United Nations, Organization and Procedure of United Nations
Commissions: Comparative Tabulation of the Rules of Procedure of
United Nations Commissions, PubT 1950.X.57"!
11 The Hague commission of inquiry in the Tavlgnano case
was directed to issue a report in fifteen days.

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290

12
Assembly session. The commissions of the Organization of

American States have tended to begin work more promptly and


to complete their reports in a much shorter period than others.

There has been no pattern on how a commission's time should

be divided between the written and the oral phases of its

work. Commissions bilaterally established, however, have

usually devoted the majority of their time to the written

phase, while agencies of international organizations have


13
spent more time gathering oral testimony. The drafting of

reports has ranged from several days to several weeks.


The overall length of investigations could be shortened

by reducing the lapse of time which has frequently occurred,

especially in United Nations commissions (often two or three

months or more^ before the first meeting. While every effort

should be made to expedite the work of commissions through

efficient operations and appropriate procedural rules, the

experience to date does not indicate that the length of the


12
The General Assembly's committee on racial policies
in South Africa noted in its report that the five-month period

The Belgian- Danish commission in 1952 allowed about


seven months for the written phase,* the oral proceedings lasted
five days. The Franco-Swiss commission in 195^-55 allowed about
twelve months for the written portion of its work; the oral
phase (consisting of thirty-five sessions each lasting from two
and one-half to three hours) began on September 28; on November
18 the parties notified the commission of their acceptance of
its proposals. The commission in this case asked and received
from the parties a six-month extension of the one -year limit.

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291

14
Investigations has been a serious fault. Commissions which

have spent long periods in the field, have often submitted

interim reports.

Uses of Subsidiary Organs

Many times it has been practical for commissions to

establish subsidiary organs (or working teams) for some phases of

their work. Such bodies have been set up to visit particular

localities, to study a special aspect of a question, or to devise

procedural rules. One of their most useful functions has been to

remain on the spot after the departure of the main commission.

One notable example of this was the subcommittee in the Greek

frontiers incidents dispute whose operations were quite

extensive. This subsidiary organ adopted its own pro cedural

rules, submitted seven interim reports, established working

teams, and heard some eighty-three witnesses and statements. The

practice of leaving representatives in the field has often proved

to be desirable. At times when the main commission has not done

this at its departure, it has had to dispatch a representative

later while drafting its report (the League’s commission on the

Albanian frontiers problem). Sometimes the action has been taken

on the initiative of the

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

commission; at other times, it has been requested by the parent

body. Since the drafting of a report usually takes several

weeks, information from a subsidiary body at the scene has

often enabled commissions to present findings which are


1*5
completely up to date. ^
Subsidiary organs have been composed of some of the regular

members of the commissions, their alternates, personnel attached

to the commissions, and members of the secretariat. The

"neutral" members of commissions, especially those bi laterally

established, have at times been constituted into special

subcommittees for the purpose of drafting question naires for

witnesses or agents (the Pranco-Siamese commission, for example)

or to conduct negotiations with the agents (the Bolivian-

Paraguayan commission).

Publicity

The experiences of different commissions show that

difficulties regarding publicity may be encountered at any stage

of investigation. Besides the adverse effect that in accurate or

untimely publicity may have on potential witnesses, as noted

earlier, ill-considered publicity may jeopardize deliberations

in other ways. It will be recalled that the

The Greek frontiers commission considered the interim


reports of its subsidiary organ in preparing the main report.
The report of the subsidiary group of the League’s commission
on the Albanian frontiers dispute was issued as a supplement
to the main report.

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• 293

Franco-Moroccan commission in 1958 was forced to adjourn be

cause of a certain newspaper item about it. All commissions

have, in varying degrees, taken steps to control publicity

about their work. While many of them have endorsed the

principle of open meetings, in practice the majority of

sessions, including the examination of witnesses, have been

closed. A corollary of the practice of closed meetings has

been the policy of releasing information on developments to

the press only with the approval of the commission or its

president. United Nations commissions have, after closed

meetings, often issued communiques to the press through their

secretariats. As one means of reassuring governments on the

safeguarding of state secrets, the members of commissions

named by international courts and their assessors have been

required to take secrecy oaths.

To give the commission every opportunity of success, it

is Important that limitations be placed on publicity and that

all members of the commission, its staff and other implicated

personnel have a clear understanding of the policies on this

matter. The resolution on conciliation adopted by the Insti

tute of International Law in 1961 specifies that respect for

the secrecy of the proceedings is to be observed by the

parties and members even after the conclusion of the commis

sion's work unless a decision is made by the parties to the

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294

16
contrary. No need has been felt, however, to keep the
find
ings from investigative activities secret.

Another aspect of the question of publicity which has

been raised by United Nations commissions, is the need for

certain physical equipment, such as safes, guards, the use of

codes, and a mail pouch.^ The commission investigating the

Palestine question made arrangements with the appropriate

authorities to assure that there would be no censorship of

press reports of hearings or of private letters.

While commissions have opposed publicity during some

phases of their work, on other phases they have sought it,

especially for the purpose of securing testimonial material

or to explain the purpose of the mission. For instance, the

commission investigating Dag Hammarskjold's death issued an

appeal in Rhodesia for witnesses in the African and English

press, on the radio, and by posters distributed in the

vicinity of the crash. Five persons who had not been heard at

earlier hearings appeared to give testimony es a result of

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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295

Role of Special Personnel

The role of agents, assessors, and liaison officers in an

investigation has assumed a degree of importance not fore seen

by the early proponents of international inquiry. In

commissions bilaterally established, they have helped secure

information, offered material, clarified points, and helped to

define the issues which needed to be elucidated. Before the

first meeting of the Franco-Swiss commission in 1955* they met

with the president to help determine the direction of the work.

The work of agents has always been tedious and time-consuming

since they have had to remain at the commission's disposal

throughout the period of its work.

The parties to disputes have usually been requested by

international organizations to name liaison officers to work

with the commissions. Without them, a commission has had to

direct requests for information to the government concerned,

probably the minister of foreign affairs, a procedure which has

caused delays. Some inter-American commissions without liaison

officers have discussed details of their proposed in

vestigative activities with the officials of a government upon

arrival on the spot.

Problems have arisen regarding special personnel, as far

back as the Dogger Bank commission, in which agents disagreed

as to which witnesses should be heard. In 1958, when the

Franco-Moroccan commission was forced to terminate its work

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296

*
before completing its mission, part of the cause was

attributed to the disagreement by the agents over the witnesses

to be interviewed. It is clear that commissions should define

at the beginning of their work the role of these individuals,

and the extent to which they are to participate in the com-

mission’s deliberations. The following practices were

followed by the United Nations commission in the Greek fron

tiers dispute:

The commission decided that the liaison representa tives


might attend all public meetings..., and might also
attend private meetings of the commission and of its
committee of experts whenever their presence was
considered necessary. Each liaison representa tive might
be assisted by a staff of three advisers or experts.
Liaison representatives made initial statements before
the commission, and were also allowed to make additional
statements, to submit documents, to present witnesses,
to interrogate wit nesses, and to express their views on
questions before the commission. In short, they were
allowed full par ticipation at the open meetings
without, however, the right of voting. In the
interrogation of witnesses, members of the commission
took precedence over liaison representatives. A similar
practice was adopted in the investigating teams of the
commission. Liaison repre sentatives also made
suggestions as to methods of investigation, places to
visit and witnesses to be heard..., as well to schedules
and itineraries of in vestigating teams, provision of
local interpreters,
and arrangements for transportation and accommodation.1-?

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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297

Cooperation with Authorities

Even when disputants have agreed to allow a commission

to work on its territory, they sometimes have placed obstacles

In its path. There have been occasions, too, when cooperation

has been complete. Some of the difficulties have related to

official restrictions about the places a commission could

visit. For instance, Yugoslavia refused for security reasons

to permit one commission to visit a naval installation. Public

authorities (as in the Congo inquiry) have at times asked that

a commission delay its arrival. In the Mosul inquiry, the

British assessors objected to changes the commission made in

its itinerary. Working teams of the Greek frontiers commission

sometimes were not permitted to cross borders in the frontier

areas where they were operating.

Obstacles which are less open and aboveboard have also

been encountered. The staff of the Chinese assessors working

with the Lytton commission were kept under surveillance by the

Japanese, who at one time arrested them briefly. Albanian

authorities in the Corfu Channel case attempted to prevent the

discovery of certain observation posts by leading the

commissioners to a wrong hill and by misplacing binoculars.

Third parties have been a help as well as a source of

difficulty to commissions. The Russian authorities refused to

give the Lytton commission information and to allow it to

travel in Siberia during its investigatory work in the Far

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298

East. The British government refused to cooperate with the

United Nations Committee on South-West Africa when it sought to

go to Bechuanaland in its efforts to gain admittance to South-

West Africa. At other times states have been especially helpful

by placing facilities, personnel, and planes at the disposal of

a commission. For instance, the United States government has

frequently made a plane available to commissions of the

Organization of American States.

There must be cooperation between a commission and the

local authorities when the former is seeking testimonial in

formation. Canada and the United States have authorized the

International Joint Commission to apply directly to the

appropriate courts in either country to obtain this evidence.

There is also legislation in the United States empowering any

international tribunal or commission to which the United States

is a party "to require by subpoena the attendance and the

testimony of witnesses and the production of documentary evi-


PO
dence relating to any matter pending before it." Other
legislation has authorized the agent of the United States
before any international tribunal or commission in which it
participates as a party to obtain testimony or evidence by

PI
applying to the courts. The work of all commissions would

20 United States, Statutes at Large, vol. 46, p. 1005.

21 United States, Statutes at Large, vol. 48, p. 117.

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299

be facilitated if legislation of this type were adopted by


22
other states. For the investigation of the Greek frontiers

dispute, the Security Council gave the commission "authority


to call upon the governments, officials and nationals of those

countries, as well as such other sources as the commission

deems necessary...." In general, governments have been quite

cooperative in helping commissions seek testimonial evidence.

Besides seeking their help in securing witnesses, commissions

should receive assurances from the appropriate authorities of

the safety of these individuals. The following portion of the

report of the commission which investigated the death of Dag

Hammarskjold illustrates one means of arranging for the hear

ing of witnesses:

The Rhodesian authorities, in discussions with the


commission, indicated that the laws of the Federa tion
relating to the attendance of witnesses could not be made
applicable to the hearings of the United Nations
commission without special legislation, which could not
be enacted in time for the United Nations hearings.
Consequently, it would not be possible for the United
Nations commission to subpoena witnesses, oaths, or
commit for contempt. The authorities further expressed
the view that it would not be possible to treat the
statements of witnesses to the United Nations commis sion
as "privileged."
With respect to the first three points no par
ticular difficulties were envisaged. The Rhodesian
authorities assured the commission that all officials
desired by the commission would appear on request and
that assistance would be given in obtaining the
voluntary appearance of witnesses. In fact, while
attendance could not be compelled, there was not a
single Instance in which a witness requested by the
commission did not appear, and in some cases witnesses

22 See, for example, D. V. Sandrlfer, op. clt., pp. 210-


215.

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300

were brought many miles to be available to the com


mission.
The commission was, however, concerned at the
suggestion that the testimony of witnesses who appeared
before it might not be privileged. In its view a witness
appearing before a United Nations commission must enjoy
privilege against legal process as a result of such
appearance. The view was expressed that such privilege
was enjoyed under the general principles of law and in
accordance with Article 105 o f the Charter of the
United Nations. Without prejudice to the legal position,
the Rhodesian authorities gave assurances that there
would be no governmental action against any person by
reason of his appearance and/or testimony before the
United Nations commission.2^

Reports: Preparation and Contents

The preparation of the report has been undertaken in

several ways. Quite often a rapporteur has been given the

task, or, as in many United Nations commissions, the drafting

has been divided among the commissioners. Whatever the method,

the commission as a whole has subsequently reviewed the report

and many times insisted on considerable revision before giving

its approval. In at least one instance, for the United Nations

inquiry in Palestine, the secretariat of the commission pre

pared the factual portion of the report while the commissioners

handled the recommendations and conclusions.

The tendency of inquiry commissions has been to produce

unanimous reports. In the United Nations, however, the reports

have rarely been unanimous, and usually have been accompanied

by minority reports or reservations. All of the League inquiry

23 United Nations Doc. A/5 0 6 9 (1962), pp. 21-22.

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301

commissions' reports were unanimous.

Certain commissions named by the United Nations, the

Organization of American States, and the International Joint

Commission have submitted interim reports. These sometimes have

been used by the parent body as a basis for action during the

commission's investigation. When hostilities or a long

investigation is involved, interim reports may not only be

desirable, but even necessary for the parent body. If a com

mission is directed to prepare them frequently, difficulties

may arise in knowing what points the parent body will wish to

have covered at the particular time unless it is instructed.

The parent body should also keep in mind the fact that interim

reports consume valuable time of the commission while in the

field.

The following items have typically been included in the

reports of commissions of inquiry: background of the contro

versy; accounts of interviews with witnesses; the commission's

itinerary; an interpretation of the task assigned, and con

clusions and recommendations. In addition to these points,

different reports have dealt with geographical, political,

economic, sociological, or religious factors pertaining to the

problem under consideration; sometimes the procedural rules

used by the commission have been included.

As noted earlier, when conciliatory functions were first

assigned to commissions bilaterally established, the content

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302

of the reports to be issued was changed. While reports of

inquiry commissions before World War I contained the findings

and conclusions resulting from the investigations, later com

missions with conciliatory functions have usually been directed

to issue a report stating simply whether the parties have

reached an agreement or not, and if they have agreed, possibly

the terms of agreement. This provision has been a problem to

commissions because it does not allow for reporting on in

vestigative activities or on the conclusions and observations of

the commissioners regarding the facts and issues. Indeed,

commissions in practice have not always followed these direc

tions. The Franco-Siamese commission in 1946 (operating under

the General Act of 1928) did not issue any report stating that

the parties had not been conciliated; instead, it prepared a

report containing a resume of the arguments as well as the

conclusions in regard to them and the recommendations for the

parties. Other commissions have used different procedures for

reporting the results of investigative activities and conclu

sions on the facts and issues in the case. The Belgian-Danish

commission in 1952 addressed a verbal communication to the

agents of the parties containing conclusions on the facts in the

dispute and the observations of the commissioners on those

facts. The Franco-Swiss commission in 1955 put its recommenda

tions and the bases for them down in writing, and attached the

provision that its statements might not be Invoked in the event

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303

the matter were submitted to Judicial proceedings. The

Bolivian-Paraguayan commission in 1929, having succeeded in

conciliating the parties, did not prepare a report. It

decided, however, to publish its proceedings and included in


24
them the interviews with prisoners made on the spot. It is

clear that a commission may use several procedures to report


these aspects of its work. The important point Is that any

of them will result in a record of the investigative work and

the observations of the commissions based on a full elucida

tion of the dispute which will remain in existence. If the

parties should not be conciliated, the work of the commission

does not then run the risk of being a total loss.

It would be proper, in view of the practice of commissions

and of the origin of conciliation as an outgrowth of inquiry,

for a commission to assume that, except with specific direc

tions to the contrary from the parties, it might employ any

of the above procedures in order to report on the questions

under dispute or on the investigative activities.2^ If doubt

In its 1961 resolution on conciliation, the Institute of


International Law proposed that "written or oral reports of
experts, the results of investigations on the spotvand
depositions of witnesses will be attached to the proces
-verbaux /of the meetings which are to be given to the parries/,
unless, in a particular case, the commission decides otherwise'
(American Journal of International Law, vol. 56 £[9 6 2 7, p. 741).
25 The 1961 resolution on conciliation of the Institute
of International Law, however, would prevent the commission
from setting forth "definitive conclusions with reference to
disputed facts or from formally deciding questions of law in
volved, unless the commission has been requested to do so by
the parties" (author’s italics) (ibid.).

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304

exists when a commission begins its work, affirmation of this

authority should be sought from the parties. The fact that the

parties usually have the final word on whether the docu-


*

ments of a commission are to be made public, should reassure

any state fearing that the commission's report might place it

publicly in an unfavorable light against its wishes.

* * *

In 1958 the International Law Commission drafted a guide

which nations in dispute might follow, if they were so inclined,

in arbitral procedure. In view of the importance of procedure to

the success of any process, it would seem proper for the

International Law Commission, perhaps at the request of the

General Assembly, to draft a guide dealing with the procedural

aspects of inquiry and conciliation. The purpose of such a guide

would be, not to impose any particular procedures on commissions

undertaking inquiries or engaging in conciliatory efforts, but

rather to make available to them an understanding of alternative

methods that have been used and are now available. Publicity to a

guide of this nature might vitalize the interest of nations in

inquiry and enlarge its place in the world com munity.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
SELECTED BIBLIOGRAPHY

Documents

Annals of the Organization of American States, vols. 1-9.

Baker, R. S. and Dodd, W. E. Public Papers of Woodrow Wilson.


New York: Harpers, 1925, 2 vols.
Colombia. Ministry of Foreign Affairs. Novena Conferencla
Intemacional Americana: Actas y; Documentos" Bogota,
1953-195^. 7 vols.
Council of Europe. Consultative Assembly. 7th Ordinary
Session. First Part. Official Report of Debates.
Vol. 1, 9th sitting (July 9. 1955). Strasbourg.
Documents on International Affairs. London: Oxford University
Press for the Royal Institute of International Affairs.
Documents of the United Nations Conference on International
Organization, San Francisco, 1945. New York and London,
1945-1946, lb vols.
France. Ministere des Affairs etrangeres. Archives
dlplomatlques francals. Vol. 94 (1905).
Garfield, Charles (comp.). Treaties, Conventions, International
Acts, Protocols and Agreements Between the United States
and Other Powers. Washington, 1913.
Great Britain. Parliamentary Papers. Vol. 60 (1905).

. Foreign Office. British and Foreign State Papers.

. . Schemes for Maintaining General Peace (Baron Walter


G. F. Ph'illimore, ed.). Handbook No. 160, vol.
2 5 . London, 1920.
Hackworth, Green H. Digest of International Law. Washington:
Government Printing Office, 1940-1944, 8 vols.
Hudson, Manley 0. World Court Reports. Washington: Carnegie
Endowment for International Peace, 1934-1943. 4 vols.

305

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
306

Inter-American Juridical Committee. ' Opinion on the Scope of


the Powers of the Council of the PAS. Pan American
Union, MarcF"19 6 1 .
Inter-American Peace Committee. Report on the Case Presented
by the Government of Venezuela. Pan American Union Doc.
(June 7> I960).
. Report on the Controversy Between Guatemala, Honduras,
and Nicaragua. Pan American Union Doc. Clf-131/54 “(July 8
, 1954) •
International Court of Justice. The Corfu Channel Case.
Judgment of April 9* 1949. 5 vols.
. Reports of Judgments, Advisory Opinions and Orders.
1948— — .
. Yearbook. 1946--- .

International Joint Commission. Pinal Report, Lake of Woods


Reference. Washington, 1917.

. Final Report, Pollution of Boundary Waters Reference.


Wa shington, 191o.
. Hearings. Remedies for the Pollution of Boundary
Waters Between the United States and Canada, 1916.
. Report, Pollution of Boundary Waters. Washington, 1951.

. Report, Preservation and Enhancement of Niagara Falls.


Washington, 1953.
International Joint Commission: Organization, Jurisdiction and
the Operation under the Treaty of January 11, 1909 between
the United States and Great Britain. Washington,
I92T:
Kluyver, C. A. (ed.). Documents on the League of Nations.
Leiden: A. W. Sijthoff's, 19^0.
League of Nations. Arbitration and Security. 1 9 2 6 . V. Geneva.

. Official Journal. Vols. 1-21 (1920-1940).

. Powers and Duties Attributed to the League of Nations


by International Treaties. C.3.M.3.1944.
. Records of the Assembly. 1920-1946. Published as
Special Supplements to the Official Journal.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
307

. Report of the Special Committee to Study the Application


of~The Principles of the Covenant. A.7.1938.
VII. Geneva.
. Treaty Series. 1920-1946.
Malloy, William M. (comp.). Treaties, Conventions, Inter
national Acts, Protocols and Agreements Between the
United States and Other PowersT 1776-1909^ 3 vols.
Washington, 1910, 1923.

Manning, W. R. (ed.). Arbitration Treaties Among the American


Nations to the Close of the Year 1910. New York: Oxford
University Press, 192TT
The Messages and Papers of Woodrow Wilson. New York: Doran,
1917j 2 vols.

Moore, John Bassett. History and Digest of the International


Arbitrations to which the United States Has Been a Party
53rd Cong., 2nd Sess.; HR Misc. Doc. 212. Washington:
Government Printing Office, 1898, 6 vols.
Organization of American States. Americas, vol. 12 (i9 6 0 ).

. Applications of the Inter-American Treaty of Reciprocal


Assistance, 1948-19567 Pan American Union. Washington,
1957.
. Bilateral Treaty Developments in Latin America, 1953-
1955. Pan American Union, Treaty Series 2. Washington,
I95h7
. Bulletin.

. Inter-American Treaties and Conventions. Pan American


Union, Treaty Series 9* Washington, 1951.
. Manual of Inter-American Relations. Pan American Union,
Conference and Organization Series 26. Washington,
1953.
. Manual of Inter-American Relations. Revised Edition.
Pan American Union, Conference and Organization Series 42.
Washington, 1956.
. Report on the Results of the Conference Submitted to
the Governing Board of the Pan American Union by the
Director-General (Inter-American Conference for the
Maintenance of Continental Peace and Security, Rio de
Janeiro, Aug. 15-Sept. 2, 1947). Pan American Union
Congress and Conference Series 53. Washington, 1947.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
308

. Situation Between Honduras and Nicaragua: Report of


the Investigating Committee. Pan American Union Doc. C-1
-35T Washington, 1957.
. Council. Decisions Taken at the Meetings of the
Council of the OAS (English trans.) Vol. 1(19^8)— .
In original language: Acta de la Sesion.... Pan American
Union. Wa shington.
Permanent Court of International Justice. Series A.
Collection of Judgments.
_____ . Series B. Collection of Advisory Opinions.

. Series C. Acts and Documents Relating to .judgments


and Advisory Opinions Given byThe Court.
. Series D. Acts and Documents Concerning the Organiza
tion of the Court.
Proceedings of the Commission of Inquiry and Conciliation,
Bolivia and Paraguay, March 13, 1929-September 13, 1929.
Washington, 1929.
Proceedings of the International Conference of American States
on Conciliation and Arbitration, Washington, December 10,
1928 to January- 5, 1929. Washington, 1929-
Proceedings of the Second National Peace Congress, Chicago,
May, 1909. Edited by Charles E. Beals. Boston, 1909*
Scott, James Brown (ed.). The Hague Court Reports. New York:
Oxford University Press for Carnegie Endowment for
International Peace, 1916, 1932, 2 vols.
(ed.). Instructions to the American Delegates to the
Hague Peace Conferences and frhelr Official Reports. New
York: Oxford University Press, 191b.
(ed.). The Proceedings of the Hague Peace Conferences.
New York: Oxford University Press for Carnegie Endowment
for International Peace, 1920, 1921, 5 vols.
. (ed.). The Reports to the Hague Conferences of 1899 and
1907 (The Official Explanation and Interpretation) .
Oxford: Clarendon Press for Carnegie Endowment for
International Peace, 1917-

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
309

. Treaties for the Advancement of Peace Between the United


States and Other Powers Negotiated by the Hon. William J.
Bryan, Secretary of State of~~The United States. New York:
Oxford University~Tress for the Carnegie Endowment for
International Peace, 1920.
Switzerland. Message du Consell federal & 1 ♦Assemble federale
du 2 aoftt 19197 Berne, 1919.
United Nations. Handbook of the Legal Status, Privileges, and
Immunities of the United Nations. September 1 9 5 2.
ST/Leg/2.

. Organization and Procedure of United Nations Commissions.


1949.X. 1 to 9 and 1 9 5 0 .X. 1 to 3 .
. Recent Inter-American Experience in the Field of
Pacific Settlement. Doc. A/AC.18/SC7^/C76, 1950.
Repertoire of the Practice of the Security Council,
1946-1951 and Supplement, 1952-1955. New York, 1954, 1957.
. Repertory of the United Nations Practice. 1955j 5 vols.
and Supplement No. 1, vol. 1. May 1958"!
. Status of Multilateral Conventions In Respect of Which
the Secretary - General Acts as Depository. 1959.
ST/Leg/3, Rev. 1.
. Systematic Survey of Treaties for the Pacific Settle ment
of International Disputes, 1928-TffiT87 1949. V. 3. > 1949.
. Treaty Series. 1946--- .

. Yearbook of the United-Nations, 1946-- .

. General Assembly. Memorandum on the Question of the


'Costa Rican Border Incidents Prepared by the
Secretariat. Doc. A/AC.18/SC.6/3, 1949.
. Official Records.

. . Report of the Security Council to the General


‘Assembly. Annua 1.
. Statement of Views and Suggestions by the
‘Secretary-General Regarding the Work of the InTerlm
Committee. Doc. A/AC.18/SC.6/1, 1949.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
310

. . Interim Committee. Analysis of the Main


Features of the Inter-American Peace System. Doc. A/AC.
lb/46 a n d ~ K d d .1 , 194b.
. . . Analysis of Provisions in Pacific
Settlement treaties. Doc. A7AC.18/57, 19487
. . . Analysis of Structure and Working of
Arrangements of Inquiry and Conciliation under Existing
treaties. D o ~ a / A O H M T W F - ---------------------
. . . History and Analysis of the General Act
for the Pacific Settlement of International Disputes, 26
September 192b. Doc. A/AC.IB/56, 1948.
. . . History and Analysis of the General Convention for
Improving the Means of Preventing War and the Regulations
for the Execution of Article 4 o f T h l 3
Convention. Doc. A/AC.lb/55* 1948•
. . . Report of the Sub-committee on Inter
national Cooperation in the Political Field. Doc. A/AC.
18/114,1950.
. . . Study of the Organization and Operation
of United Nations Commissions. Doc. A/AC.18/SC.6/6 , 1949.
. , . Study on Methods for the Promotion of
International Cooperation in the Political Field.
Doc. A/AC.lb/73 and Add. 1 , 1948.
. . . Use by the Organs of the League of
Nations of Measures and Procedures of Pacific Settlement.
Doe. A/AC.lb/6b, 19487"
, . Use by Organs of the United Nations of
Measures and Procedures of Pacific Settlement. Doc. A/AC.
18/6 1 , 19481---------------------------------

. Security Council. Official Records.

United States. Statutes at Large.

. Treaty Series.

Congress. Senate. Committee on Foreign Relations.


Hearings, The Charter of the United Nations for the
Maintenance of International Peace and Security Submitted
by the President of the Unite'S States on July~2, 1945
■(Revised). July 9-13, 1 $ ^ 79th Cong. 1st Sess. 1945.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
311

.. . . . Subcommittee on American Republics Affairs. United


States -Latin American Relations. Study No. 3, Doc. No. 1^5.
Bbth Cong. 2nd Sess., i$6o.
Department of State. American Foreign Policy 1950-1955?
Basic Documents, 2 vols. Pub. 6446, General Foreign Policy
Series 117, 1957.
. American Foreign Policy Current Documents.
'195^71957.
. Bulletin.

. Charter of the United Nations; Report to the


"President of the Results' of the San Francisco Conference.
Pub." 2349, 1 9 5 5 :
. Documents and State Papers. Vol. 1 (1948)---- .

. _____ . Dumbarton Oaks Documents on International


"Organization. Pub. 2 3 4 9 . Conference Series 71, 194-5.
_. _____ . Inter-American Conference for the Maintenance
"of Continental Peace and Security, 1947: Report of the
■Delegation of the United States. Pub. 3016, 194B7
. International Agencies in Which the United
"States Participates. Pub". 2 6 9 9 , 19^7
. _____ . Ninth International Conference of American
"States, Bogotd,1948: Report of the Delegation of the
United States. Pub. 3263, 197+H.
Papers Relating to the Foreign Relations of the
"United States.
. Treaties in Force: A List of Treaties and
"Other International Agreements of the United States in
Force on January 1, 19ol. tub. 7132', 19&1.

Secondary Works

Books

Annual Review of United Nations Affairs. Edited by Clyde


Eagleton. New York.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
312

Alvarez, Alejandro. The Monroe Doctrine. New York: Oxford


University Press, 1924.
Bailey, Sydney D. The General Assembly of the United Nations: A
Study of Procedure and Practice. New York: Praeger for
Carnegie Endowment 'for International Peace, i9 6 0 .
Barclay, Sir Thomas. New Methods of Adjusting International
Disputes and the Future. London: Constable, 1917*
Beaucourt, Albert. Les commissions Internationales apr&s la
palx. (Thesis, IParis). Arras: Repesse, Cassel, 1909 .
Bentwich, Norman, and Martin, Andrew. A Commentary of the
Charter of the United Nations. London: Routledge, 1950*
Bemstorff, Count J. H. My Three Years in America. London:
Skeffington, 1920.
Bloomfield, Louis, and Fitzgerald, Gerald F. Boundary Water
Problems of Canada and United States. Toronto: Carswell,
Bokanowski, Maurice. Les commissions Internationales d
1enquSte. (Thesis). Paris: Pedone, 1925*
Brown, Philip Marshall. La conciliation Internationale.
Paris: Pedone, 1925*
Bryan, William Jennings. Heart to Heart Appeals. New York:
Reveil, 1917.
Bryan, William Jennings, and Bryan, M. B. Memoirs of William
Jennings Bryan. Philadelphia: Winston, 1925*
Burton, Margaret E. The Assembly of the League of Nations.
Chicago: University of Chicago Press, 1941.
Butler, Geoffrey, and Maccoby, Simon. The Development of
International Law. London and New York: Longmans, 1928.
Carlston, Kenneth S. The Process of International Arbitration.
New York: Columbia University Press, 1946.
Chacko, C. J. The International Joint Commission Between the
United States of America and the Dominican of Canada. New
York: Columbia University Press, 1932.
Clark, Grenville, and John, Louis B. World Peace Thru World
Law. Cambridge: Harvard University Press, i9 6 0 .

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
313

The Collected Papers of John Bassett Moore. 7 vols. New


Haven: Yale University Press, 1944.

Commission to Study Organization of Peace. Arthur N. Holcombe,


chairman. Strengthening the United Nations. New York:
Harper, 1957.

Conwell-Evans, T. P. The League Council in Action. London:


Oxford University Press, 1929.
Cuevas, Francisco. Del Congreso de Panama a. la Conferencia de
Caracas 18267L954. Caracas: No publisher given, 1955-
Darby, W. E. International Tribunals. London: Peace Society,
1899.

Eagleton, C. International Government, rev. ed. New York:


Ronald Press, 1948.
Fauchille, Paul. Traite de droit international public. 8th ed.
Vol. 1, Part 3. Paris: Rousseau, 1926.
Feller, A. H. The Mexican Claims Commission, 1923-34: A Study
in the Law and Procedure of International Tribunals. New
York: Macmillan, 1935*
Fenwick, Charles G. International Law. 3rd rev. ed. New York
and London: Appleton, Century, Urafts, 1948.
Gamer, James W. Recent Developments in International Law.
Calcutta: 1925.
University of Calcutta Press,
Gooch, G. P. History of Modem Europe 1878-1919. London:
Cassell, 1923.
Goodrich, Leland M., and Hambro, Edvard. The Charter of the
United Nations. 2nd rev. ed. Boston: World Peace
Foundation, 1949.

Goodrich, L., and Simons, A. The United Nations and the


Maintenance of International Peace and Security.
Washington: Brookings Institution, 1955*
Gralinski, Z . Le reglement paciflque obligatoire des dlfferends
intematIonaux suivant le Pacti*-de la Socl6t6 des Nations.
Paris: Pedone, 1925*
Hambro, E. The Case Law of the International Court. 2 vols.
Leyden: SijthoffTs, 19557 i9 6 0 .
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
314

Hasluck, Paul. Workshop of Security. Melbourne: Cheshire, 1948.

Haviland, H. Field Jr. The Political Role of the General


Assembly . New York: Carnegie for International Peace,
1951.

Hershey, Amos S. The International Law and Diplomacy of the


Russo-Japanese War. New York: Macmillan, 1905.
Hette, Jean P. Devolution de la conciliation Internationale.
Paris: E. Muller, 193^7
Higgins, A. Pearce. The Hague Peace Conferences. Cambridge:
Cambridge University Press, 1909.
Hill, Martin. Immunities and Privileges of International
Officials. Washington: Carnegie Endowment for Inter
national Peace, 1947*
Hoijer, Olof. La solution pacifique des lltiges Internationaux
avant et depuis la Societe des Nations. Paris: Sp&s,
1925.
Holls, Frederick W. The Peace Conference at the Hague. New
York: Macmillan, 1900.
Hudson, Manley 0. By Pacific Means. New Haven: Yale
University Press, 1935*
. International Tribunals, Past and Future. Washington:
Carnegie Endowment for International Peace and the
Brookings Institution, 1944.
. The Pe:manent Court of International Justice. New
York: Macmillan, 1943*
Hull, William I. The Two Hague Conferences and their Contri
bution to International Law. Boston: International School
of Peace by Ginn, 1 9 0 8 .
Hyde, Charles Cheney. International Law Chiefly as Interpreted
and Applied by the United States. Boston: Little, Brown

International Law and the United Nations. Eighth Summer


Institute. University of Michigan Law School, 1955*
Jessup, Philip C. International Security. New York: Council on
Foreign Relations, 1935*

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
315

Jimenez, E. Voting and the Handling of Disputes in the


Security Council. New York: Carnegie Endowment for
International Peace, 1950*
Johnson, Willis F, America*s Foreign Relations. 2 vols. New
York: Century, 1916# 1921.
Jones, S. S. The Scandinavian States and the League of Nations.
Princeton: Princeton University Press, 1939.
Kelsen, Hans. The Law of the United Nations (and Supplement)
Recent Trends in the Law of the United Nations. London:
Stevens, 1950# 1951.
Korbel, Josef. Danger in Kashmir. Princeton: Princeton
University Press, T 55C
Ladd, William. An Essay on a Congress of Nations (l84o).
New York: Oxford University Press for Carnegie Endowment
for International Peace, 1916.
Lange, Christian L. The American Peace Treaties. Kristiania:
Aschehoug, 1915.
Lapradelle, Albert G. de, and Politis, Nicolas. Recue11
des arbitrages lntemationaux. 2 vols. Paris: Pedone, 1905*
Lawrence, T. J. International Problems and Hague Conferences.
London: Dent, 1908.
LeRay, Andre. Les commissions Internationales d1enquete au xx me
siecle. Saumur: Godet, 1910.
Manger, William. Pan America in Crisis: the Future of the
Organization of American States. Washington: Public
Affairs Press, 1961.
Marburg, Theodore. A League of Nations: History of a Movement.
2 vols. New York: Macmillan, 1919.
Martens, Frederick de. L a Conference de la Paix a_ La Haye.
Paris: Rousseau, 1900.
McIntyre, Stuart Hull. Legal Effect of World War II on Treaties
of the United States. The Hague: Nijhoff, 1958.
Merlgnhac, A. Traite Theorique et pratique de l'arbltage
international. Paris: Larose, 1 8 9 5 *
Moore, John Bassett. The Principles of American Diplomacy.
New York: Harper, 1918.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
316

Morley, Felix. The Society of Nations. Washington: Brookings


Institution, 1932.
Myers, Denys P. Handbook of the League of Nations. Boston:
World Peace Foundation, 1935*
Newlin, A. I. The Arbitration Policy of the United States Since
1820. (Thesis). Geneva: Journal de Geneve, 1940.
Oppenheim, L. F. L. International Law. 6th edit. Edited by
H. Lauterpacht. Vol. 2. London: Longmans, 1940.
Papers Relating to the Work of the International Joint Commis
sion. Ottawa: no publisher given, 1929. (Reprints of
articles on the Commission.)
Philipse, A. H. Le role du Conseil de la Societe des Nations dans
le reglement paciflque des differends internatIonaux.
TheHague: Nijhoff, 1929-
Pollock, Frederick. The League of Nations. London: Stevens,
1920.
Potter, Pitman B. Introduction to the Study of International Law.
1st ed. and rev. ed. New York: Century, 1922, 1 9 2 5 .
Ralston, J. H. International Arbitration from Athens to
Locarno. Stanford: Stanford University Press, 1929.
. The Law and Procedure of International Tribunals.
rev. ed. Stanford: Stanford UniversityPress, 1926.
Rappard, William E. The Quest for Peace Since the World War.
Cambridge: Harvard University Press, 1940.
Ray, Jean. Commentalre du Pacte de la Societe des Nations.
Paris: Sirey, 1930.
. La politique et la jurisprudence de la Societe des
Nations. Supplements to Commentalre. T ”vols. Paris:
Sirey, 1931-1935.
Ross, Alf. Constitution of the United Nations; Analysis of
Structure and Function. New York: Rinehart, 1950.
Saint Seine, Arnold de. La conciliation Internationale. Paris:
Rousseau, 1930.
Sandifer, Durward V. Evidence Before International Tribunals.
Chicago: Foundation Press, 1939*

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
317

Schucking, Walther. The International Union of the Hague


Conferences. Oxford: Clarendon Press, 191b.
Scott, J. B. The Hague Peace Conferences of 1899 and 1907.
2 vols. Baltimore: Johns Hopkins Press, 1909 .
. (ed.) The International Conferences of American States
1889-1928. New York: Oxford University Press for Carnegie
Endowment for International Peace, 1931* and First
Supplement, 1933 -1940. 1940.
. (ed.). Resolutions of the Institute of International
Law. New York: Oxford University Press for Carnegie
Endowment for International Peace, 1916.
Seymour, Charles. Intimate Papers of Col. House, vol. 1.

Boston: Mifflin, 1926.


Shotwell, James T. War as an Instrument of National Policy.
New York: Harcourt Brace, 1929*
Simpson, J. L. and Fox, Hazel. International Arbitration: Law
and Practice. New York: Praeger, 1959*
Smith, F. E., and Sibley, N. W. International Law as
Interpreted During the Russo-Japanese War. 2nd ed.
London: Unwin and Clowes, 1907.
Sohn, Louis B. (ed.). Cases and other Materials on World Law.
Brooklyn: The Foundation Press, 1950.
Stone, Julius. Legal Controls of International Conflicts.
London: Stevens, 1954-•
Stowell, E. C. and Munro, H. F.
International Cases. Vol. 1.

Boston: Mifflin, 1916.


Stuyt, A. M. Survey of International Arbitrations 1794-1938.
The Hague: Nijhoff, 1939*
Taft, William. The United States and Peace. New York:
Scribners, 1914.
La technique et les prlnclpes du droit public: etudes en
l !honne"ur de Georges ok Scelle. Vol. 1. Paris:
Pichon and Durand-Auzias, 195°.
Tod, Marcus Niebuhr. International Arbitration Amongst the
Greeks. Oxford: Clarendon tress, 1913.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
318

Vayo, Alvarez del. "The Chaco War" in Pacifism Is Not Enough:


Problems of Peace. 9th series. London: Allen and Unwin for
Geneva Institute of International Relations, 1935.

Vinacke, Harold. International Organization. New York:


Crofts, 1934.
Vulcan, Constantin. La conciliation dans le droit international
actuel. Paris: Pedone, 1932.
Walters, P. P. History of the League of Nations. 2 vols.
London: Oxford University Press, 1952.
Webster, C. K. and Herbert, Sydney. The League of Nations
in Theory and Practice. Boston: Mifflin,T933.
Wehberg, Hans. The Problem of an International Court of
Justice. Oxford: Clarendon Press, 1918.
White, Andrew D. The First Hague Conference. Boston: World
Peace Foundation, 1912.
Williams, John Fischer. Some Aspects of the League of Nations.
London: Oxford University Press, 1934.
Wilson, Florence. The Organization of the League Covenant.
London: Woolf, 19287
Winkler, Henry R. The League of Nations Movement in Great
Britain 1914 -1919. New Brunswick: Rutgers University
Press, 1952.

Wolf, F. C. de. General Synopsis of Treaties of Arbitration,


Conciliation, Judicial Settlement, Security and Dis
armament Actually in Force Between Countries to the
Disarmament Conference. Washington: Cameg’ie Endowment
for International Peace, 1933.
Yepes, J. M. Del Congreso de Panama a la_ Conferencia de
Caracas 1826 -1954. Caracas: no publisher given, 1955.
Zimmem, Alfred. The League of Nations and the Rule of Law
1918-1935. London: Macmillan, 1938". ~

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
319

Journals, Pamphlets and Newspapers

Alfaro, R. J. "El sistema conciliatoria lnteramericano y su


funcionamento segun la Gonvenelon de Washington,"
Revlsta de derecho lntemaclonal (1939)* PP. 32-52?.
Alford, Neill H. Jr. "Pact-Finding By the World Court,"
Villanova Law Review, vol. 4 (Pall M5 8), pp. 37-91.
Anderson, Chandler P. "Production of Evidence by Subpoena
Before International Tribunals," American Journal of
International Law vol. 27 (1933)* pp. 498-501.
. "Scope and Character of Arbitration Treaties,"
Proceedings of the American Society of International
Law, vol. 23T1929)* PP. 110-143.
Anderson, Chandler P., and Scott, J. B. "Advisory Opinions from
Commissions of Inquiry." American Journal of Inter
national Law, vol. 26 (1932), pp. 565-568^
vanAsbeck, P. M. "La tache et l'action d'une commission de
conciliation" and "La procedure suivie par la commission
permanente de conciliation franco-suisse," Nederlands
Ti.ldschrift voor intemationaal recht, vol. 3 (January,
July 1950), PP. 1-9 and 209-219.
Barra, P. de la. "La mediation et la conciliation Inter
nationales," Recuell des Cours, l'Academie de droit
international de la Haye, vol. 1 (1923), PP. 557-567.
Borel, Eugene. L'Acte general de Geneve," Recuell des Cours,
l'Academie de droit international de la Haye, vol. 27
(1929), PP. 501-595.
Bos, Maarten. "The Pranco-Itallan Conciliation Commission,"
Nordisk tidsskrift for international ret og Jus gentium,
vol. 22 11952), PP. 133-159.
Bryan, W. J. Editorials in The Commoner, February 17 and 24,
1905.

Bryan, W. J. "The Forces that make for Peace," World Peace


Foundation Pamphlet Series, vol. 2 (October 1912).
"Circular Note of the Secretary-General /of the Permanent Court
of Arbitration/,” American Journal of International Law,
vol. 54 (I960), pp. 933-941.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
320

Curti, Merle Eugene. "Bryan and World Peace," Smith College


Studies In History, vol. 16 (April-July 1931)* PP. 1-262.
Davis, Malcolm. "Councils Against War; A Comparison of Cases in
Third Party Dealing with Disputes between Nations," Geneva
Special Studies, vol. 3 (1932 ), pp. 3-19*
Delhez, L. "L1evolution des ldees en matiere de reglement
pacifique des conflits," Revue generale de droit
international public, series 3 * vol. 22 TTanuary- March
1951), PP. 5-22:
Dickinson, G. Lowes. "The Foundations of a League of Peace," World
Peace Foundation Pamphlet Series, vol. 5 (April 1915)* pp. 3-
2o7

Efremoff, Jean. "Organisation de la conciliation comme moyen


de prevenir les guerres," Racueil des Cours, l'Academie
de droit international de la Haye, vol. 59 (1937)* PP.
103-221.
. "La conciliation Internationale," Recuell des Cours,
l'Academie de droit international de la Haye, vol. 18
(1927), PP. 5-1^5.
Fenwick, Charles G. "Application of the Treaty of Rio to the
Controversy Between Costa Rica and Nicaragua," American
Journal of International Law, vol. 43 (1949)* PP. 329-333.
. "The Honduras-Nicaragua Boundary Dispute," American Journal
of International Law," vol. 51 (1957)* PP. 7 6 1-7 6 5 .
. "The Inter-American Peace Committee," American Journal
of International Law, vol. 43 (1949)* PP. 770-772.
Ferrara, 0. "The Practical Significance of the Pan -American
Treaties," Current History, vol. 29 (February 1929)* pp.
822-824.
Finch, George. "The Bryan Peace Treaties," American Journal
of International Law, vol. 10 (1916), pp. 882-890.
Francois, J. P. A. "La convention europeene pour le reglement
’pacifique des differends," European Yearbook, vol. 6
(1958), pp. 54-66.
Francois, J. P. A. "Le Palais de la Paix en 1955*" Nordlsk
’Tijdschrlft voor intemationaal recht, vol. 3 (January
1958)* PP. 5 7 ^ .

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
321

Galeano, V. B. "The Gondra Treaty," Transactions of the


Grotlus Society, vol. 15 (1930), PP. 1-15.
Gibbons, Alan 0. "Sir George Gibbons and the Boundary Waters
Treaty of 1909*" Canadian Historical Review, vol. 34
(1953), PP. 124-135:
Goodrich, Leland M. "Pacific Settlement of Disputes," American
Political Science Review, vol. 39 (October 1945), PP. 956-
970.

Gorge, C. "L'evolution de la conciliation Internationale,"


Revue de droit international et de legislation comparee,
series 3 , vol. 7 (192b) pp. 633 -5?b and vol. « (1927),
pp. 58-1 0 6 .
Gross, Leo. "The Question of Laos and the Double Veto in the
Security Council," American Journal of International Law,
vol. 54 (I9 6 0 ), pp. Ii8-i3'l.
Grotius Society. Annuaire international. The Hague, 1938,
1921, 1939.

Hyde, Charles Cheny. "The Place of Commissions of Inquiry and


Conciliation Treaties in the Peaceful Settlement of
International Disputes," Proceedings of the American
Society of International Law, vol. 23“Xl929) pp. 144-157
and British Year Book of International Law (1929),
pp. 9 6 -HO.
. "Safeguarding Peace: A Constructive Suggestion,"
American Journal of International Law, vol. 22 (1 9 2 8),
pp. 262-269.
Hyde, James Nevins. "Peaceful Settlement: A Survey of Studies in
the Interim Committee of the United Nations General
Assembly," International Conciliation No. 444 (October
1948), pp. 531-574.
International Organization. Monthly.

Jessup, P. "The United States and Treaties for the Avoidance of


War," International Conciliation, No. 239 (April 1928),
pp. 181-2TF5 ; 7
Jimenez, Eduardo de Archaga. "Le traitement des differends
intemationaux par le Conseil de Securite," Recuell des
Cours,, l ’Academie de droit international de la Haye,
vol. 85 (1954-1), PP. 5-105.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
322

Journal de Geneve.

Kellogg, Frank B. "The War Prevention Policy of the United


States," American Journal of International Law, vol. 22
(1928), pp. 253-26T.
Kelsen, Hans. "Legal Technique In International Law: A Textual
Critique of the League Covenant," Geneva Special Studies,
vol. 10 (December 1939)* PP. 1-17^
Kenworthy, William E. "Joint Development of International
Waters," American Journal of International Law, vol. 54
(i9 6 0 ), pp. 592-60^
Kerley, Ernest L. "The Powers of Investigation of the United
Nations Security Council, " American Journal of Inter
national Law, vol. 55 (l§6 l), pp. 8 9 2 -9 1 8 .
Kirkpatrick, Helen Pauli. "The Chaco Dispute: the League and
Pan Americanism," Geneva Special Studies, vol. 7 (June
1936), pp. 22-43.

Lake Mohonk Conference on International Arbitration. Report(s).


1895-1916. Published by Lake Mohonk Conference on
International Arbitration, Mohonk Lake, New York.

Levermore, Charles H. "Synopsis of Plans for International


Organization," Advocate of Peace, vol. 8 l (July-August
1919), PP. 216 -225 and 252-267.
Liang, Yuen-Li. "The Settlement of Disputes in the Security
Council: the Yalta Voting Formula," British Yearbook of
International Law, vol. 24 (1947)* pp. 330-359.
"Some Aspects of the Work of tne Interim Committee of
the General Assembly: Pacific Settlement of Disputes,"
American Journal of International Law vol. 42 (1 948), PP.
895-900.
MacKay, Robert A. "The International Joint Commissions Between
the United States and Canada," American Journal of
International Law, vol. 22 (1928), pp. 292-318.
Mandelstam, Andre N. "La commission Internationale d ’enquSte
sur 1*incident de ia mer du nord," Revue generale de
droit international public, vol. 12 (1905J* PP. 161^190
and pp. 351-415.

"La conciliation Internationale d ’apres le Pacte de la


jurisprudence du Conseil de la Societe des Nations," Recueil
des Cours, l'Academie de droit international de la Haye,"
volT"1T T T 9 2 6-IV), pp. 337-643.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
323

Martin, Charles E. "The Diversion of Columbia River Wfeters,"


Proceedings, American Society of International Law, vol.
51 (1957), PP. 2*10.
Melville, George. "The Destruction of the Battleship ’Maine1,"
The North American Review, vol. 193 (l91l), po. 831-849.
Myers, Denys P. "The Commission of Inquiry: The Wilson-Bryan
Peace Plan," World Peace Foundation Pamphlet Series,
vol. 3 (November 1913), PP. 3-27.
. "Contemporary Practice of the United States Relating to
International Law: Arbitration and Conciliation," American
Journal of International Law, vol. 54 (i9 6 0 ), pp. 638-640.
. "The Modern System of Pacific Settlement of Inter
national Disputes," Political Science Quarterly, vol. 46
(December 1931), pp. 5^8-588.
The New York Times.

Oliveira, Pedro M. "De la investigacion y de la conciliacion en


los tratados interamericanos," Re vista de derecho jr
ciencias politicas, 3rd year (1939T, PP« 2"47-282.
"Pacific Settlement of Disputes in the Covenant of the League
of Nations and the Charter of the United Nations: A Paper
Issued by the Reference Division of the United Nations
Information Organization, London," International
Conciliation, No. 420 (April 1946), pp. 197-211.
Politis, N. "Les commissions Internationales d ’enquete,"
Revue general de droit international public, vol. 19
t’1912), PP. 149-185:
Possony, S. T. "Peace Enforcement," Yale Law Journal, Vol. 55
(August 1946), pp. 910-949.
Potter, P. B. "International Regulation of National Action for
Self Defense," Southwestern Political and Social Sciences
Quarterly vol. 10 (December 1929), PP. 279-289.
Proceedings of the National Arbitration and Peace Congress,
April lTPlTT"1907, New York, pp. 35‘5r86o7
Revel, G. "R6le et charactere des commissions de conciliation,"
Revue generale de droit international public, vol. 5 ,
Series (1931), pp. 607.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
324

The Review of Reviews. London and New York. 1899.

Rolin, Henri. "L'heure de la conciliation comme mode de


reglement pacifique des litiges, 11 European
Yearbook, vol. 3 (published in 1957)> PP. 3-21.
. "Une conciliation belgo-danoise," Revue generale de
droit international public, vol. 24, series 3 (1953 )»
PP. 353-571.
Root, E. Letter of Hon. Elihu Root to Hon. W. H. Hays
Regarding the Covenant of the League of Nations,
American Journal of International Law, vol. 13 (1919)>
pp. 580-594“
Rousseau, Charles. "Prance et Maroc: echec de la procedure
d'enquSte et de conciliation dans 1*affaire du
deroutement de 1 'avion transportant de Rabat a Tunis
les chefs nationalistes algeriens le "2 octobre 1956,"
Revue generale de droit international public, vol.
29.> series 3— (October -DecemberT955yTnpp7 091-8 9 6 .
Ruegger, Paul. "Le fontionnement pratique des commissions de
conciliation," Revue de droit international et de la
legislation comparee, vol. 10, series 3 (19297.* PP. 91-108.
Salmon, Jean. "La convention europeenne pour le reglement
pacifique des dlfferends," Revue generale de droit
international public, vol. 30, series 3 (January-March
1959)/PP. 21 -Fn
Sanders, William. "Bogota Conference." International
Conciliation, No. 442 (June 1948), pp. 383-433.
Schindler, Dietrich, "Les traites de conciliation de d'arbitrage
conclus par la suisse," Revue de droit international
et legislation comparee, vol. 1, series 3 (1925)*
pp. 816-895.
Schilcking, Walther. "Le developpement du Pacte de la Societe des
Nations," Recuell des Cours, l'Academie de droit inter
national de la Haye, vol. 20 (1927-V), pp. 350-458.
Scott, J. B. "Mr. Bryan's Proposed Commission of Inquiry,"
American Journal of International Law, vol. 7 (1913)*
pp. 556-570.
"The Pan American Conference on Conciliation and
Arbitration," American Journal of International Law,
vol. 23 (1929), PP. 143-152.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
325

. "Secretary Bryan's Peace Plan," American Journal of


International Law, vol. 8 (1914), pp. 565-5 7 1 .
. "Secretary Bryan's Peace Plan," American Journal of
International Law, vol. 9 (1915)> PP* 175-177*
Sohn, Louis B. "The Role of International Institutions as
Conflict- Adjusting Agencies," The University of Chicago
Law Review, vol. 28 (Winter 1 9 6 1 ), pp. 205-257*
Times (London).

Turlington, Edgar, "The Pact of Bogota," American Journal of


International Law, vol. 42 (1948), pp.”668-611.
de Visscher, Charles, "La procedure de conciliation devant la
Societe des Nations," Revue de droit international et de
legislation comparee, vol. 4 series 3 (1 9 2 3), pp. 21-
357
Williams, Sir John Fischer. "The Pan-American and League of
Nations Treaties of Arbitration and Conciliation, British
Yearbook of International Law (1929)> PP* 14-31*

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
326

APPENDIX I

Russian Draft Proposals for International Commissions of


Inquiry Presented to the 1899 Hague Peace Conference
In cases which may arise between the signatory states
where differences of opinion with regard to local circum
stances have given rise to a dispute of an international
character which cannot be settled through the ordinary diplo
matic channels, but wherein neither the honor nor the vital
interests of these states are involved, the interested
governments agree to form an international commission of
inquiry in order to ascertain the circumstances forming the
basis of the disagreement and to elucidate the facts of the
case by means of an impartial and conscientious investiga tion.
These international commissions are formed as follows:
Each interested government names two members and the four
members together choose the fifth member, who is also the
president, of the commission. In case of equal voting for the
selection of a president, the two interested governments by
common agreement address a third government or a third
person, who shall name the president of the commission.
The governments between which a serious agreement or a
dispute under the conditions above indicated has arisen,
undertake to supply the commission of inquiry with all means and
facilities necessary to a thorough and conscientious study of
the facts in the case.
The international commission of Inquiry, after having
stated the circumstances under which the disagreement or dis
pute has arisen, communicates its report to the interested
governments, signed by all the members of the commission.
The report of the international commission of Inquiry has
in no way the character of an award; it leaves the disputing
governments entire freedom either to conclude a settlement in a
friendly way on the basis of the above- mentioned report, or to
resort to arbitration by concluding an agreement ad hoc, or
finally, to resort to such use of force as is accepted in
international relations.

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327

APPENDIX II

Treaty for the Advancement of Peace between the United


States and the Netherlands of 1913*
Article 1. The high contracting parties agree that all
disputes between them of every nature whatsoever, to the
settlement of which previous arbitration treaties or agreements
do not apply in their terms or are not applied in fact, shall,
when displomatic methods of adjustment have failed, be referred
for investigation and report to a permanent international
commission to be constituted in the manner prescribed in the
next succeeding article; and they agree not to declare war or
begin hostilities during such investigation and before the
report is submitted.
Article 2. The international commission shall be composed
of five members, to be appointed as follows: one member shall be
chosen from each country, by the government thereof; one member
shall be chosen by each government from some third country; the
fifth member shall be chosen by common agreement between the two
governments, it being understood that he shall not be a citizen
of either country. The expenses of the com mission shall be paid
by the two governments in equal propor tion.

The international commission shall be appointed within


six months after the exchange of the ratifications of this
treaty; and vacancies Bhall be filled according to the manner
of the original appointment.
Article 3* In case the high contracting parties shall have
failed to adjust a dispute by diplomatic methods, they shall at
once refer it to the international commission for investigation
and report. The international commission may, however,
spontaneously offer its services to that effect, and in such
case it shall notify both governments and request their
cooperation in the investigation.
The high contracting parties agree to furnish the permanent
international commission with all the means and facilities
required for its investigation and report.
The report of the International commission shall be com
pleted within one year after the date on which it shall declare
its investigation to have begun unless the high contracting
parties shall limit or extend the time by mutual agreement.
The report shall be prepared in triplicate; one copy shall be
presented to each government, and the third retained by the
commission for its files.

* League of Nations, Treaty Series, No. 1737*

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328

The high contracting parties reserve the right to act


independently on the subject-matter of the dispute after the
report of the commission shall have been submitted.
Article 4. The present treaty shall...take effect
immediately after the exchange of ratification, and shall con
tinue in force for a period of five years; and it shall there
after remain in force until twelve months after one of the high
contracting parties have given notice to the other of an
Intention to terminate it.

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329

ABPENDIX III

Excerpts from the Regulations for the Execution of Article 4


of the General Convention to Improve the Means of Preventing
War*
Article 1. When there is occasion to constitute a
commission of inspection, the commissioners shall he appointed
by the Council of the League of Nations with the approval of
the states of which such experts are nationals.
The commissioners may not be nationals of the parties to
the dispute.
Article 5« The commission may be divided into several
sections. Each section shall consist of not less than three
members. These shall be of different nationalities.
Article 9- The commissioners shall enjoy all diplomatic
privileges and immunities.
They shall be provided as soon as possible, in addition
to diplomatic passports or visas, with Identity papers drawn
up by the Secretary -General of the League of Nations in the
name of the Council indicating the official status of the
holder and the mission entrusted to him.
Article 10. The governments parties to the convention to
which the Council shall have notified the dispatch of a com
mission of inspection shall take the necessary measures to
enable the.commissioners to discharge their duties. They shall
see that the public authorities and the population place no
obstacle of any kind in the way of the work of the commis sion.
They shall give the latter all assistance in their power in
order to facilitate the accomplishment of its mission.
They shall, more particularly, appoint one or more officials who
shall be at the constant disposal of the commission. Such
officials shall be provided with written instructions giving them
full powers to call the assistance of the civil and military
authorities.
During the execution of their mission, the commissioners may
not refuse the company of officials of the state party to the
dispute in whose territory their mission is being performed.
Article 11. The governments parties to the convention
shall give instructions to the responsible authorities, with a
view to insuring that transport of persons belonging to the
commissions and communications of all kinds between the com
missions and the Council of the League of Nations shall be
effected as rapidly as possible.

* League of Nations Doc. 0 .658(1 ).M.269(1).1931.IX.

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330

Article 12. The governments parties to the dispute shall


give instructions to the responsible authorities to offer the
commissioners any protection that may be asked for by them.
Article 13. The governments parties to the dispute shall
on their respective territories provide the commission with all
facilities for transport and accommodation that might
reasonably be requested.
The expenses of transport and accommodation shall be
defrayed by the commissioners.
Article 14. The governments parties to the dispute shall
send to the Council of the League of Nations and to the presi
dent of the commission a copy of the orders, powers, and in
structions that they may have given in conformity with the
provisions of the present chapter.
Article 13.............................................
Should any difficulty arise between the commission and the
authorities of any one of the parties to the dispute, the
president shall immediately inform the Council. Pending the
decision by the Council, the president of the commission shall
take all necessary steps to enable the commissioners to con
tinue their mission under the most effective conditions
possible. The government of the party concerned shall instruct
its responsible authorities to assist the commissioners for
this purpose on all points not directly affecting the difficulty
in question.
Article 16. On the conclusion of the mission, the presi dent
of the commission shall submit to the Council of the League of
Nations the commission's report, and also, in the event of
disagreement, any dissenting opinions.
Article 17. Should the Council consider it necessary, a
secretariat for the commission shall be organized by the
Secretary-General of the League of Nations. The members of that
secretariat shall enjoy the same diplomatic privileges and
immunities as the commissioners.

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331

APPENDIX IV

Practices of Commissions Regarding the


Selection and Hearing of
Witnesses
*
United Nations Commission Concerning Greek Frontier Incidents
...It was finally decided that except in the case of definitely
important organizations that would in any case be heard by
the commission..., the organizations requesting a hearing were
to submit short summaries of their intended statements, which
weretto be classified by the secretariat and studied by the
committee of experts / a subsidiary organ of the commission/. In
these studies there were considered both the importance and
competence of the organization, and the relevancy of their
intended depositions. Upon consideration of the suggestions made
in this connection by its committee of experts, the com mission
then decided whether or not to invite the organizations to appear
before the commission. In view of the numerous re quests for a
hearing before the commission, the secretariat was authorized to
scrutinize the organizations and the persons con cerned in order
to determine If they satisfied the conditions required for the
purpose of being granted a hearing by the commission. The
commission approved the text of a letter addressed to each of the
organizations requesting a hearing, in order to insure that their
statements would be confined to subjects under consideration by
the commission, as defined by the text of the Security Council
resolution. A copy of the resolution was attached to this letter.
It was also agreed that when organizations consisted of a number
of smaller groups or parties, it would only be necessary to hear
one single representative.

Selection of Witnesses

In view of the impossibility of hearing all persons who


desired to be heard by the commission or of examining all
witnesses proposed by the liaison representatives, it was
necessary to make a selection of the witnesses to be examined.
In this connection, the secretariat Interviewed numerous indi
viduals and examined relevant correspondence. The committee
of experts, in close collaboration with the liaison representa
tives, planned the hearing of the witnesses proposed by them.
Certain guiding principles were adopted with regard to the
hearings of non-governmental organizations and individuals.

* United Nations Pub. 1949.X.3 (1949), PP. 23-26.

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332

The teams determined their own procedures for selecting wit


nesses. For example, at certain towns visited by Team I, the
chairman held a preliminary conference with the president of
the community, leaders of local organizations and applicants
for a hearing. The team made its selection of witnesses on the
basis of the chairman's report and lists submitted by the
liaison representatives.

Precedence of Witnesses

A definite practice was established with regard to the


order of hearing witnesses. In principle, precedence was given
to the witnesses presented by the liaison representative in
whose country the commission or its investigating team was in
operation, but time was also allowed for the witnesses
presented by the other party to be heard.
Naming of Witnesses

It also became an established practice in the commission


and in its teams that the names of the witnesses were given in
advance by the respective liaison representative, together with
written summaries of their intended depositions, sketches, maps
and other relevant documents. In one instance, the failure of a
liaison representative to disclose the names of the witnesses he
wished to present before the commission, was the subject of
discussion. The difficulty was solved when the liaison
representative agreed to submit in advance a list con taining
the names of witnesses.

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333

Excerpts from the


Rules of the United Nations Special
Committee on Palestine*

Oral and Written Testimony

Rule 32. The committee may, at its discretion, invite


representatives of governments or organizations, or private
individuals, to submit oral or written testimony on any
relevant matter.
Rule 33. Requests for oral hearing shall contain an
indication of the subject or subjects on which the witness
desires to testify.
Rule 34. The committee may refer to a subcommittee for
examination and recommendation such requests to present oral
testimony as it deems advisable.
Rule 35. The committee shall in each case decide the time
and place of the hearing of any witness from whom it may
decide to receive oral testimony. The committee may advise any
witness to submit his testimony in writing.
Rule 36. The committee, on the basis of the time
available to it, may limit either the number of witnesses or
the time to be allowed to any witness.
Rule 37. The committee may refer to a subcommittee for
study and report such written testimony as it may deem
advisable.

* United Nations Pub. 1949.X . 5 (1949), pp. 33-34,

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