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Contemporary Practice of the United States Relating to International Law

Published online by Cambridge University Press:  28 March 2017

Denys P. Myers
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Extract

The press release issued by the Department of State in announcing the filing of an application with the International Court of Justice on July 7, 1959, in a damage suit for the destruction of an aircraft by a fighter aircraft of the Soviet Union stated:

The present proceedings have been instituted in accordance with the well-established United States policy of resolving such disputes, whether of fact or law, in the International Court of Justice. The Court is the judicial organ of the United Nations for this purpose and is the appropriate international body before which such cases can be heard and decided.

Type
Research Article
Information
American Journal of International Law , Volume 54 , Issue 3 , July 1960 , pp. 632 - 672
Copyright
Copyright © American Society of International Law 1960

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References

1 1953-1954 I.C.J. Yearbook 92. The applications and the documents are printed in the Pleadings, Oral Arguments, Documents series of the Court.

2 1958-1959 I.C.J. Yearbook 91.

3 1958-1959 I.C.J. Yearbook 91.

4 American Foreign Policy (1950-1955) 1977.

5 [1959] I.C.J. Rep. 127; 53 A.J.I.L. 923-937 (1959).

6 The Soviet note of July 31, 1953, is printed in 29 Dept. of State Bulletin 179 (1953). The United States note of Jan. 26, 1954, is at 30 Hid. 410-413 (1954).

7 1956 American Foreign Policy: Current Documents 536.

8 Ibid. 545-546.

9 For texts of the four notes, see 38 Dept. of State Bulletin 1010-1029 (1958).

10 36 Dept. of State Bulletin 350-358 (1957); discussed in detail by Briggs, Herbert W., “Towards the Rule of Law?” 51 A.J.I.L. 517-529 (1957).Google Scholar

11 [1957] I.C.J. Rep. 105; 52 A.J.I.L. 320 (1958).

12 [1959] I.C.J. Rep. 6; 53 A.J.I.L. 671 (1959).

13 [1959] I.C.J. Rep. 9, 13.

14 14 Dept. of State Bulletin 1121 (1946).

15 47 Stat. 1983; Treaty Series, No. 844; IV Trenwith 4659; 129 League of Nations Treaty Series 465.

16 [1959] I.C.J. Rep. 22, 23, 25, 29.

17 Rapport du Conseil Fédéral à 1'Assemblée Federate sur la Gestion en 1956, p. 169; ibid., 1957, p. 170; ibid., 1958, p. 193.

18 41 Dept. of State Bulletin 363 (1959).

19 Letter of May 19, 1952, from the Acting Legal Adviser (Tate) to the Acting Attorney General, 26 Dept. of State Bulletin 984 (1952); quoted in “New United States Policy Limiting Sovereign Immunity,” by Bishop, William W., Jr., 47 A.J.I.L. 93-106 (1953).Google Scholar

20 Loftus E. Becker, Legal Adviser, to William P. Rogers, Attorney General, March 9, 1959. This and other quotations in this note are from thermofax copies of original papers in the files of the Department of State.

21 Dexter and Carpenter, Inc. v. Kunglig Jarnvagsstyrelsen, 43 F. 2d 705 (C.A. 2d, 1930), cert, den., 282 U. S. 896 (1931); followed in Bradford v. Chase National Bank, 24 F. Supp. 28, 38 (S.D. N.T., 1938), affirmed sub nom. Berger et al. v. Chase National Bank, 105 F. 2d 1001 (C.A. 2d, 1939), 309 U. S. 632 (1940); and New York & Cuba Steamship Co. v. Republic of Korea, 132 F. Supp. 684 (S.D. N.Y., 1955).

22 The resolution, Official Records, 12th Session, Supp. No. 18 (A/3805), p. 17, follows in full: “The General Assembly, “Saving considered chapter VI, section III, of the report of the Economic and Social Council, dealing with the United Nations Children's Fund, “Impressed with the practical effectiveness of the Fund in aiding over a hundred countries and territories, particularly in underdeveloped areas, to establish permanent children's services, “Appreciating also the essential role of the Fund in increasing the capacity of countries for economic and social progress, “Aware however of the many needs which the Fund is unable to meet, “ 1 . Expresses the hope that Governments, organizations and individuals will give increased support to the United Nations Children's Fund; “ 2 . Congratulates the Executive Board and the Executive Director of the Fund on their outstanding work.” 8 See House Report 1203, 79th Congress, First Session.

23 The articles and commentary are in the report of the 10th Sess., U.N. General Assembly, 13th Sess., Official Records, Supp. No. 9 (A/3859); 53 A.J.I.L. 270-287 (1959).

24 Arrest of employees of the Legation at Sofia resulted in the suspension of diplomatic relations with Bulgaria Feb. 20, 1950, American Foreign Policy (1950-1955) 2091; in a note of July 1, 1955, the United States protested to Hungary concerning the harassment, arrest or disappearance of 12 employees of the United States Legation at Budapest, and on Sept. 1, 1955, informed the Hungarian Legation at Washington that its information activities should be confined to the Legation, in retaliation for Hungary permitting its police authorities “ t o arrest arbitrarily and otherwise to harass local employees of the American Legation and to molest and intimidate local visitors calling at the Legation.” Ibid. 2131, 2134.

25 A waiver of diplomatic immunity, at least for those persons included in the Diplomatic List, among whom are members of the ambassador's family, is granted by the home government. To a question in the Dail Eireann at Dublin on Nov. 25, 1959, Frank Aiken, Irish Minister for External Affairs, replied that “the traditional rule regarding diplomatic immunity had been automatically applied by United States authorities and the question of Dublin's approval had not therefore arisen.” New York Times, Nov. 26, 1959, p. 3.

26 Department of State, Organization Manual, sec. 133.2i. The statutes referred to, 22 U.S.C. sees. 252, 253, 254, derived from Revised Statutes, sees. 4063-4066, in turn originating in the Act of April 30, 1790, which was based on 7 Anne, c. 12 (1708). Diplomatic and official immunity relating to delegations to and staffs of international organizations are found in the Headquarters Agreement between the United States and the United Nations, June 26, 1957 (61 Stat. 3416; T.I.A.S., No. 1676; 11 U.N.T.S. 11), and 22 U.S.C., sees. 288a-g. Sec. 133.2 of the Organization Manual assigns these further duties relevant to diplomatic immunity to the Office of the Chief of Protocol: “ r . Registers and maintains records of officers and employees of foreign governments and all officers and employees of international organizations in the United States and its territories … “ s . Registers all employees under the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staffs (Sept. 20, 1951, 5 U.S.T. 1087; T.I.A.S. 2992; 200 U.N.T.S. 3) in Washington, and approves persons coming within Articles 12, 13 and 14. “ t . Determines the eligibility of officials and employees of foreign governments for exemption from the Universal Military Training and Service Act, as amended. “w. Maintains liaison with the Treasury Department and the Bureau of Customs, with responsibility for determination of matters of policy in regard to the granting of customs privileges for all classes of foreign officials and employees of international organizations, and assists in arranging for similar privileges for American officials abroad. “x. Maintains liaison with the Internal Revenue Service, with responsibility for policy and legal determination concerning exemption of foreign government officials, missions, and instrumentalities from certain Federal, State and local taxes.”

27 S.Exec. A, 85th Cong., 1st Sess.

28 Stat. 458; I Malloy 1228.

29 40 Dept. of State Bulletin 512 (1959).

30 22 Dept. of State Bulletin 159, 351-356, 397, 442, 524 (1950); American Foreign Policy (1950-1955) 2091.

31 P.L. 86-42, approved June 11, 1959, 73 Stat. 72, and P.L. 86-420, approved April 9, 1960, 74 Stat. 40.

32 Report of the United States Senate Delegation, Sen. Doc. 82, 86th Cong., 2d Sess.

33 S. Con. Res. 29 and S. Res. 114; S. Reps. 225, 233, and 343.

34 U. S. Contributions to International Organizations 76 (House Doc. III , 86th Cong., 1st Sess.) gives a summary account of the Union.

35 The 1959 resolutions are printed in the Report of the United States Senate Delegation, Sen. Doe. 82, 86th Cong., 2d Sess. The resolutions of the fourth conference, Nov. 15-21, 1958, are in the Report of the United States House Delegation, H. Rep. 265, 86th Cong., 1st Sess.

36 S.J. Res. 170, 86th Cong., 2d Sess.; S. Rep. 1122.

37 Public Law 86-42, 83 Stat. 72; with H. Rep. 215 and 8. Rep. 217. Reports of the meetings are in H. Rep. 730, 86th Cong., and 106 Cong. Bee. 7994 (daily).

38 H. Rep. 895; S. Rep. 1082, 86th Cong.

39 T.I.A.S., No. 2782; 4 U.S.T. 234: 1 American Foreign Policy (1950-1955) 724.

40 Padelford, Norman J., “International Law and the Spanish Civil Strife,” 31 A.J.I.L. 233 (1937).Google Scholar

41 Ibid.Supp. 179.

42 American Foreign Policy: Current Documents (1956) 536, at 544-545 (Pub. 6811).

43 This statement has been revised from year to year, in part appearing first in the Mutual Security Act of 1954, Aug. 26, 1954, 68 Stat. 832, which in form has been amended as follows: July 8, 1955, 69 Stat. 283; July 18, 1956, 70 Stat. 555; Aug. 14, 1957, 71 Stat. 355; June 30, 1958, 72 Stat. 261; July 24, 1959, 73 Stat. 246.

44 73 Stat. 254.

45 72 Stat. 261; 22 TJ.S.C. 1841, 1951, 1750 et seq.

46 103 Cong. Rec. 13264 (daily ed., July 28, 1959).

47 T.I.A.S., No. 4302.

48 141 League of Nations Treaty Series 71; 6 Hudson, International Legislation 437.

49 Dept. of State Bulletin 582-594 (1942).

50 T.I.A.S., No. 1957; 63 Stat. 2173.

51 T.I.A.S., No. 2799, and 4 TJ.S.T. 944; T.I.A.S., No. 3709, 7 TJ.S.T. 3275. Accounts of the operation of the agreements and the meetings of the International Wheat Council are carried in the annual Department of State publication: Participation of the United States Government in International Conferences.

52 S. Exec. Rep. No. 5, 86th Cong., 1st Sess., pp. 8, 10^11.

53 Agricultural Trade Development and Assistance Act of 1954, Title I, as amended, 7 U.S.C., sees. 1701-1709.

54 S. Exec. Rep. No. 5, cited above, p. 8.

55 These subsections provide that the co-operation will take place after a determination by the President that it will promote, and will not constitute an unreasonable risk to, the common defense and security; that the other participant makes a substantial contribution to mutual defense and security.

56 37 Dept. of State Bulletin 739-740 (1957); 85th Cong., 2d Sess., S. Rep. 1654, pp. 2-3.

57 86th Cong., 1st Sess., H. Rep. 672, and S. Rep. 513. Both reports contain the texts of the agreements and the relevant papers of the President, the Departments of State and Defense and the Atomic Energy Commission.

58 T.I.A.S., Nos. 4267 and 4271.

59 T.I.A.S., No. 4078.

60 6 U.S.T. 2607, 2595; T.I.A.S., Nos. 3305, 3304; 235 U.N.T.S. 201, 175.

61 T.I.A.S., No. 4268.

62 7 U.S.T. 3097; T.I.A.S., No. 3689; amended, July 3, 1957, 8 U.S.T. 1354; T.I.A.S., No. 3883.

63 T.I.A.S., No. 4276, in force July 27, 1959.

64 T.I.A.S., No. 4277, in force July 27, 1959.

65 T.I.A.S. No. 4278, in force July 27, 1959.

66 T.I.A.S., No. 4292, in force Aug. 11, 1959.

67 The Delegation of Panama (A/200) on Nov. 14, 1946, handed in a declaration that, though the United States was responsible for the Canal Zone, it should not report on it, since sovereignty resided in Panama.

68 The list is given in Resolution 66(1), Doc. A/64, Add. 1.

69 General Assembly, 14th Sess., Official Records, Supp. No. 16 (A/4354), p. 37.

70 The revised Standard Form is in Bes. 551 (VI), General Assembly, 6th Sess., Official Records, Supp. No. 20 (A/2119), pp. 40-54.

71 Ibid., 8th Sess., Supp. No. 17 (A/2360), pp. 21-23.

72 The United States was a persistent initiator of the chapter. Ruth B. Russell, A History of the United Nations Charter 88, 173, 808-824. The United States never had “colonies,” but did have dependent “overseas territories.”

73 The same language in Art. “VI of the treaty of Feb. 22, 1819, with Spain ceding the Floridas, Art. IX of the Treaty of Peace with Mexico of Feb. 2, 1848, Art. V (by reference) of the Gadsden Treaty of cession with Mexico of Dec. 30, 1853, and Art. III of the convention with Russia ceding Alaska, March 30, 1867, applied to the territory of more than half of the country's area.

74 8th Sess., Official Records, Supp. No. 17 (A/2360), p. 25.

75 Ibid., 10th Sess., Supp. No. 19 (A/3116), p. 25.

76 Ibid., 9th Sess., Supp. No. 21 (A/2890), Res. 849(IX), Nov. 22, 1954.

77 The territories on which administering Members of the United Nations made reports at the end of 1959 were:

Australia: Cocos (Keeling) Islands, Papua;

Belgium: Belgian Congo;

France: New Hebrides (condominium, United Kingdom);

Netherlands: Netherlands New Guinea;

New. Zealand: Cook Islands, Niue Island, Tokelau Islands;

United Kingdom: Aden, Bahamas, Barbados, Basutoland, Bechuanaland, Bermuda, British Guiana, British Honduras, British Somaliland, Brunei, Cyprus, Falkland Islands, Fiji, Gambia, Gibraltar, Gilbert and Ellice Islands, Hong Kong, Jamaica, Kenya, Leeward Islands, (Malta, 1960), Mauritius, New Hebrides (condominium, France), Nigeria, North Borneo, Northern Rhodesia, Nyasaland, Pitcairn Island, St. Helena, Sarawak, Seychelles, Sierra Leone, Singapore (self-governing, 1959), Solomon Islands, Swaziland, Trinidad and Tobago, Uganda, Windward Islands, Zanzibar;

United States: American Samoa, Guam, Virgin Islands.