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A Matter of International Concern
Published online by Cambridge University Press: 28 March 2017
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- Copyright © The American Society of International Law 1969
References
1 Charles G. Fenwick, “When Is There a Threat to the Peace!—Rhodesia,” 61 A.J.I.L. 753-755 (1967); and Myres S. McDougal and W. Michael Reisman, “Rhodesia and the United Nations: the Lawfulness of International Concern,” 62 ibid.1-19 (1968).
2 The adjective “present” is employed throughout whenever it seems necessary to emphasize the distinction between a threat to the peace and a potential threat to the peace. The U.N. Charter refers simply to “threats to the peace,” but subsequent references in U.N. practice to an additional category, “potential threats to the peace,” suggest a need for an elaboration of the original Charter terminology to indicate that a threat to the peace is imminent, whereas a potential threat is not. Objective distinction between a present threat to the peace (or simply threat to the peace) and a potential threat causes some difficulty, for the terms are nothing more than attempts to mark points on a continuum ranging from peace to war. U.N. Charter provisions and interpretations indicate that these points include disputes the continuance of which is notlikely to endanger the maintenance of international peace and security, disputes the continuance of which is likely to endanger the maintenance of international peace and security, potential threats to the peace, threats to the peace (more imminent than potential threats), breaches of the peace, and acts of aggression.
3 Fenwick, loc. cit.753.
4 Ibid.755.
5 In another context, the same author faces the disappointment over the failure of the Conference at Caracas in 1954 to secure an all-comprehensive system of pacific settlement with this comment: ‘ ‘ Today, if the controversy should reach an acute stage, a case can readily be made out of a threat to the peace.” International Law 633 (4th ed., 1965).
6 McDougal and Reisman, loc. cit.5.
7 Ibid.
8 Ibid.13. This note raises no issue over self-determination.
9 The arguments: that the activities of the Rhodesian regime contain no element of aggression; that the activities of such authorities are wholly lawful under generally accepted international law; and that all such activities transpire within the geographic bounds of Rhodesia. Ibid.5-6.
10 Ibid.14. It should be emphasized that the issue raised here does not relate to the contention that the Security Council has broad powers to classify a situation as a threat to the peace (potential or present) or to the conclusion that once that classification is made it would make a domestic matter a matter of international concern. The point of this note is that the Council (and the Assembly) did not regard the situation in Rhodesia as domestic and that the finding on the seriousness of the situation was for purposes other than establishing jurisdiction.
11 Hid.15.
12 Fenwick, loc. cit.754.
13 McDougal and Reisman, loc. cit.3.
14 S/Res. 216 (1965), Nov. 12, 1065, and S/Res. 217 (1965), Nov. 20, 1965.
15 McDougal and Reisman, loc. cit.14.
16 Ibid.15.
17 Ibid.
18 Ibid.15-16.
19 For a more detailed argument in support of a restrictive interpretation, see Charles Brothers Hilson Fincham, Domestic Jurisdiction; the Exception of Domestic Jurisdiction as a Bar to Action by the League of Nations and the United Nations; a Contribution to the Study of Article 15, paragraph 8, of the Covenant and Article 2, paragraph 7, of the Charter 67-68 (1948). McDougal and Reisman, however, state: “According to Art. 15 (8) of the Covenant, as authoritatively interpreted by the Permanent Court of International Justice, a determination of domestic jurisdiction, once made, would have precluded an international organization from participating in the resolution of a dispute, even if the dispute constituted an inclusive threat to peace.” (P. 15, note 58.)
20 John M. Howell, in Robert B. Wilson (ed.), The International Law Standard and Commonwealth Developments 141-142 (1966).
21 McDougal and Reisman, loc. cit.15.
22 Thomas Buergenthal, ‘ ‘ The United Nations and the Development of Rules Relating to Human Rights,” 1965 Proceedings, American Society of International Law 132.
23 For fuller coverage of the development of the doctrine of international concern, see Lawrence Preuss, Article 2, Paragraph 7 of the Charter and Matters of Domestic Jurisdiction (1949); John M. Howell, “Domestic Questions in International Law,” 1954 Proceedings, American Society of International Law 90-99; John M. Howell, “ The Commonwealth and the Concept of Domestic Jurisdiction,” 5 Canadian Yearbook of International Law 25-29 (1967); H. Lauterpacht, International Law and Human Rights 174, 176, 177, 178, 213-215 (1950); Fincham, op. cit.113; Leland M. Goodrich, “ The United Nations and Domestic Questions,” 3 International Organization 27 (1949),
24 See statements of the delegates of India, Iraq and Mexico in the 1005th meeting of the 4th Committee of the General Assembly (1960).
25 A/Res. 1514 (XV), Dee. 14, 1960. While this note was at the galley stage, an excellent account of the lawmaking effect of General Assembly resolutions appeared. See Samuel A. Bleicher, “The Legal Significance of Re-Citation of General Assembly Resolutions,” 63 A.J.I.L. 444-478 (1969), especially the argument (pp. 470-475) in support of the conclusion that “Resolution 1514 (XV) is as much a part of our international law as any of the familiar traditional doctrines.“
26 A/Res. 1654 (XVI), Nov. 27, 1961.
27 See note 17 above.
28 A/Res. 1747 (XVI), June 28, 1962.
29 A/Res. 1755 (XVII), Oct. 12, 1962.
30 A/Res. 1760 (XVII), Oct. 31, 1962.
31 A/Res. 1889 (XVIII), Nov. 6, 1963.
32 A/Res. 2012 (XX), Oct. 12, 1965.
33 A/Res. 2022 (XX) Nov. 5, 1965.
34 A/Res. 2024 (XX), Nov. 11, 1965, and S/Res. 216, Nov. 12, 1965.
35 Cited in note 14 above.
36 S/Res. 221, April 9, 1966.
37 Efforts during the following months by the African states to broaden the Security Council call to use force in order to bring down the Smith regime failed. To the objection of some delegates that the Assembly should not vote to use force, that body passed a resolution in November calling upon the United Kingdom to use force “ in the exercise of its powers as the administering power, to put an end to the illegal racist minority regime.” (A/Res. 2151, Nov. 17, 1966.)
38 S/Res. 232, Dec. 16, 1966.
39 A/Res. 2262 (XXII), Nov. 3, 1967.
40 S/Res. 253, May 29, 1968.
41 McDougal and Reisman, loc. cit. 5.
42 Ibid.18-19.