The United Nations action in the Congo, instituted by the Security Council on July 14, 1960, has been described by the Secretary General as “the biggest single effort under United Nations colours organized and directed by the United Nations itself.” It was an emergency action, undertaken almost instantaneously and carried out in an atmosphere of crisis and political tension. This was not a setting propitious to juridical deliberation; yet it cannot be said that legal considerations were disregarded. At the very outset, the Secretary General drew attention to the basic considerations of law and principle that should govern United Nations operations. As the situation in the Congo grew more complicated and divergent views emerged as to the propriety of the United Nations action, Member Governments as well as the Secretary General sought guidance and support in the prescriptions of the Charter and the rules of law that have evolved through United Nations practice. Faced with the responsibility of interpreting a general mandate of the Security Council in circumstances that had not been envisaged, the Secretary General considered it essential to refer to legal precepts whenever they could furnish guidance; only in this way could he maintain the requisite impartiality and yet take action under his mandate that might be opposed by one or the other contending side. Thus, in regard to each of the several controversial issues that arose, the Secretary General presented the legal basis for his actions, not merely in terms of the broad principles of the Charter, but more specifically, when necessary, in terms of the applicable rules and precepts adopted by United Nations organs, whether expressly in their resolutions or impliedly in their practice. The function of law in United Nations diplomacy has rarely been more clearly demonstrated.

The United Nations Security Council in a resolution passed on August 9, 1960, reaffirmed that “the United Nations force in the Congo will not be a party to or in any way intervene in or be used to influence the outcome of any internal conflict. …” A Commonwealth state, Ceylon, was a cosponsor of this precedent-making resolution. A few weeks earlier the Government of Malaya had announced a boycott on South African goods in protest against South Africa’s racial policy, another dispute involving a domestic jurisdiction plea. Commonwealth members have been parties to approximately half of the disputes in League of Nations or United Nations history that are fairly classifiable as involving pleas of domestic jurisdiction. These recent actions of Ceylon and Malaya suggest that the newer members of the Commonwealth will be no less active in shaping the domestic jurisdiction concept than the older members have been.

Little scholarly effort has been devoted to consideration of the part actually played by international law in national decision-making. Diplomatic historians have tended to neglect the legal factor. Political scientists have discussed the rôle of law largely in general terms. The effort of international lawyers has been focused on statement of what the law is supposed to be. Some of this attention might usefully be diverted to study of the place of the legal factor in the making of specific decisions. Such studies should make possible more realistic discussion of the question whether the policy-makers are assigning the degree of emphasis to the factor of international law which is best calculated to promote the national interests and values they aim to serve.

What is attempted here is one case study focusing on the legal principles of the United Nations as a restraint and as an incentive to action in the United States reaction to the 1950 Communist attack in Korea. That reaction took two parts: (1) a decision to assist Korea within the framework of the United Nations, and (2) a decision to isolate Formosa from Communist attack by individual American action. After a brief outline of the Charter principles in question, we will consider the way in which each of these decisions was made, together with the domestic and international consequences in each instance.

The conclusion of the United Nations Conference on the Law of the Sea in 1958 has occasioned many commentaries by authorities on international law. Scant attention, however, has been paid to that part of the Conference dealing with jurisdiction over foreign merchant ships in the territorial sea. This is surprising in view of the centuries-old controversy affecting the interests of a vast number of ship-owners and seafarers. Indeed, the importance of the width of the territorial sea would not have assumed such serious proportions but for the fact that its determination would secure for the coastal states jurisdiction over a specific portion of the sea.

The Yugoslav Ambassador, concerned particularly with statements in the case of Arbulich’s Estate, 41 Calif. 2d 86, 257 Pac. 2d 433 (1953), cert. denied, 346 U. S. 897, digested in 48 A.J.I.L. 670 (1954), handed a note to the Secretary of State on April 18,1958, in which he asked for the Department of State’s understanding of the scope of Article II of the convention of October 14, 1881, for “facilitating and developing the commercial relations” of the two countries. In a reply dated April 24,1958 (file 211.683/41958) the Department of State concurred in the interpretation of the Yugoslav Ambassador.