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Is Discussion Intervention?

Published online by Cambridge University Press:  28 March 2017

Quincy Weight
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Type
Editorial Comment
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American Journal of International Law , Volume 50 , Issue 1 , January 1956 , pp. 102 - 110
Copyright
Copyright © American Society of International Law 1956

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References

1 See speech by M. Alphand of France, New York Times, Sept. 22, 1955.

2 New York Times, Oct. 1, 1955. In a general speech on Sept. 29 M. Pinay had said: “To those who seek to indict France, I shall not merely present the legal argument, however irrefutable, of the incompetence of the United Nations … I shall only say in keeping with the facts: See where you are going? See where you run the risk of leading us? You are seeking to destroy the effort undertaken by France to build a free association between herself and the overseas peoples, when those peoples are closely united to France by geographical and historical bonds and by evident mutual interests. Yet, you know that France assumes, in Africa, a mission that she alone can fulfill. Thus, consciously or unconsciously, your objective is chaos. May I then put this question to you: Who would benefit from that chaos? What would be its consequences? Through France’s African policy, would it not be the Western community itself, and its security system, which would be affected? I ask you to consider this carefully.” M. Spaak of Belgium suggested in the debate on Sept. 30 that “an impassioned approach to the problem was not likely to bring results.”

2a On Nov. 25, 1955, on motion of Krishna Menon of India, the Algerian question was put off the agenda without prejudice to the question of competence, and the French Delegation returned to the General Assembly.

3 Representatives of Egypt, Iraq, and Pakistan, on Sept. 21, defended the proposal before the Steering Committee on these grounds, but were warned by the President of the General Assembly, José Maza, of Chile, that they were out of order in discussing at that stage the substance of the problem. New York Times, Sept. 22, 1955. In the General Assembly debate on Oct. 30, the Indian representative, Krishna Menon, insisted that “Debate of a question does not per se constitute intervention,” and added: “No resolutions are before us, no suggestion of censor or reproach is made,” but “no one can deny that a situation does exist in Algeria. We are condemning no one in the French government or in its delegation here. The search is for a solution in bringing up a new element, the interest of the United Nations.” Ibid., Oct. 1, 1955.

4 Hans Kelsen considers that even though this interpretation would lead to absurd consequences, it is a possible interpretation because Art. 2, par. 7 (differing in this respect from Art. 15, par. 8 of the League of Nations Covenant) does not specify who decides whether a matter is within the domestic jurisdiction of a state. The Law of the United Nations 783 ff. (1950).

5 Op. cit. 771. See also Georg Schwarzenberger, International Law as Applied by International Tribunals 45 (1945); Q. Wright, “Recognition and Self-Determination,” Proceedings, American Society of International Law, 1954, p. 29. See also United Nations, Repertory of Practice of United Nations Organs (New York, 1955), Vol. 1, pp. 137 ff., especially pars. 387, 391, 396, 397, 399, 403, 404, 409, 411, 434.

6 Permanent Court of International Justice, Status of Eastern Carelia (1923), 1 Hudson, World Court Reports 204; Q. Wright, loc. cit. 31, and “Domestic Jurisdiction and the Competence of the United Nations Organs,” Commission to Study the Organization of Peace, Ninth Report, Charter Review Conference, New York, August 1955, p. 47 ff.

7 Kelsen, op. cit. 770; 1 Hyde, International Law 246 (2nd ed., 1945); W. B. Hall, International Law, Sec. 88 (8th ed., Higgins) ; 1 Oppenheim, International Law, Sec. 134 (7th ed., Lauterpacht) ; U.N. Repertory of Practice, Vol. 1, p. 130, par. 342.

8 See resolution which emerged after discussion of the Apartheid laws of South Africa, Dec. 5, 1952, U.N. Doc. A/P, VII, 616; Aleksander W. Rudzinski, “Domestic Jurisdiction in the United Nations Practice,” 9 India Quarterly 330 (1953); U.N. Repertory of Practice, Vol. 1, pp. 97, 98, 133, pars. 186, 189, 360.

9 Rudzinski, loc. cit. 325 ff.; Wright, “Domestic Jurisdiction and the Competence of the United Nations Organs,” op. cit. 49 ff. During the headings before the Senate Foreign Relations Committee on the United Nations Charter in 1945, this colloquy took place between a Senator and a representative of the Department of State: “Senator: ‘For example, let me ask you if this would be true. It is conceivable that there are racial questions on the southern shores of the Mediterranean that might have very explosive effects under some circumstances; but they originate locally, do they not?’ The Representative: ‘Yes’; The Senator: ‘And because they might have explosive effects, this organization might concern itself with them; is that correct?’ The Representative: ‘It might, if somebody brings them to the attention of the organization.’ The Senator: ‘And by the same token, am I correct in this, that any racial matter, any of these matters we are talking about, that originate in one country domestically and that has the possibility of making international trouble, might be subject to the investigation and recommendations of the Organization?’ The Representative: ‘I should think so, because the organization is created for that.’ ” Hearings, pp. 311 ff., from Kelsen, op. cit. 774. During debate on the Indian proposal concerning the rights of Indians in the Union of South Africa, the representative of the Union declared: “He could not agree that recommendation by the General Assembly would not be an intervention. … Without admitting the right of the United Nations to intervene in the matter, he had no objection to the case being freely discussed.” First meeting, Joint First and Sixth Committee of the General Assembly, Nov. 21, 1946, Journal of the United Nations, No. 40, Supp. No. 1, and 6 A/C 1 and 6/1, p. 4; quoted in Kelsen, op. cit. 772. See also U.N. Repertory of Practice, Vol. 1, pp. 132–133, pars. 354–357.

10 Iceland M. Goodrich and Edvard Hambro, Charter of the United Nations-, Commentary and Documents 179 (1949).

11 U.N.C.I.O. Documents, “Vol. 8, p. 208; Goodrich and Hambro, op. cit., 111, 151; note 9 above.

12 Goodrich and Hambro, op. cit. 250.

13 United Nations Security Council, Official Records, 1947, Vol. 2, No. 22, p. 458; Louis B. Sohn, Cases and Other Materials on World Law 674 (1950).

14 U.N.C.I.O. Documents, Vol. 11, p. 712; Sohn, op. cit. 679.