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.

Ours is an age of paradox. In science we are daily reaching ever greater achievements, overcoming time and space “and now nothing will be restrained from [us], which [we] have imagined to do.” We are literally reaching “unto Heaven.” These achievements in science are in large measure due to our ability to free ourselves of attachment to concrete “thinghood” and to advance toward ever greater abstraction. By contrast, in the humanities, in ethics, and in law, we are still deeply ingrained in a world of “things,” of the concrete and tangible, although a tendency toward abandonment of this orientation is increasingly noticeable. Personality values not tied to external, visible and tangible objects are emerging very slowly. In international law this process lags behind that observable in national legislation. Thus, for example, while spying on another state in the course of an authorized stay therein is widely practiced, there is deep resentment when the wrong consists in a wrongful “touching” of the territory of another state, for this violates “sovereignty” in an “immediate” rather than “consequential” manner, “sovereignty” being apparently conceived of as a physical entity rather than as the realm of a people’s privacy. This is reminiscent of early legal notions, such as the view that an action of trespass will lie only when there has been some direct physical contact, however slight, of the defendant with the body or property of the plaintiff, a view clearly rooted in belief in the magic of touching. A similarly “thinghood-bound” conception of international law is reflected in the recent United Nations Security Council resolution censuring Israel for the capture of Eichmann.

When the late Sir Hersch Lauterpacht became a member of the International Court of Justice in February, 1955 (a position he was to fill effectively for barely five years, until the fall of 1959), he went to The Hague with some thirty years of devoted study and practice of international law behind him. As teacher and student of international law, as a most highly qualified publicist (in the words of Article 38(1) (d) of the Statute of the Court) of recognized universal authority, he had devoted himself both to the law in general and in particular to the problems of the judicial settlement of international disputes, whether by the Permanent Court of International Justice and its present-day successor, the International Court of Justice, or by ad hoc arbitration tribunals. Indeed, his writings as a whole display a rare preoccupation with the entire philosophy and the practical problems of the judicial settlement of international disputes, together with a deep understanding of its limitations and a satisfying freedom both from putting forward extravagant claims in its behalf and from purely theoretical speculations.

It is the purpose of the law of State responsibility to extend the protection of international law to those who travel abroad and to facilitate social and economic ties between States. regardless of its political or economic philosophy, can remain indifferent to mistreatment of its nationals abroad. In an interdependent world the well-being of many countries rests upon an influx of foreign funds and managerial skills, the owners of which must be given effective protection against unjust prosecution or discrimination.

Responding to this need, international law has developed over the last two hundred years standards and procedures designed to protect the life, liberty, and economic security of nationals of one State who live or conduct business activities.in another State. The General Assembly of the United Nations decided in 1953 that “it is desirable for the maintenance and development of peaceful relations between States that the principles of international law governing State responsibility be codified,” and requested the International Law Commission to undertake this codification. The Commission appointed as rapporteur for that subject Dr. F. V. García-Amador, who has submitted to the Commission six excellent reports on various aspects of State responsibility.

That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable. The most primitive form of redress which insisted on an eye for an eye and a tooth for a tooth was not really reparation at all, but retaliation pure and simple, treated as a substitute for reparation. Measures of individual retaliation are no longer permissible in municipal law and impartial tribunals are entrusted with the duty of determining the nature and the extent of the reparation for a given wrong according to the law of the land.

International law has tried to follow parallel lines of development in this respect but has failed to keep pace with municipal law, largely because of its inherent difficulties. Reprisals, which are no better than individual retaliation, continued till even the other day to be acknowledged as a legitimate mode of reparation. The Covenant of the League of Nations, while imposing restrictions on resort to war, left uncertain the right of nations to make use of force short of war, suggesting thereby that the legality of reprisals might remain untouched. The Charter of the United Nations forbids the use of force except in certain contingencies and the implication of the relevant provision may well be that reprisals are still legal as long as they do not involve the use of force.

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.

1. 1. A State is internationally responsible for an act or omission which, under international law, is wrongful, is attributable to that State, and causes an injury to an alien. A State which is responsible for such an act or omission has a duty to make reparation therefor to the injured alien or an alien claiming through him, or to the State entitled to present a claim on behalf of the individual claimant.

2. 2. (a) An alien is entitled to present an international claim under this Convention only after he has exhausted the local remedies provided by the State against which the claim is made.

   1. (b) A State is entitled to present a claim under this Convention only on behalf of a person who is its national, and only if the local remedies and any special international remedies provided by the State against which the claim is made have been exhausted.

The Convention on the Continental Shelf of April 29, 1958—one of the works of the first United Nations Conference on the Law of the Sea— declares in Article 2(1) that the “coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” The fourth paragraph of the same article defines these resources as

One of the more significant, but inadequately recognized, developments in the field of the law of war which has occurred during the past half-century is that with respect to the institution of the Protecting Power. Surprisingly little has been written, especially in English, either on the general subject of the Protecting Power or on the specific subject of the Protecting Power and its relationship to the prisoner-of-war problem. This article will endeavor, to a necessarily limited extent, to fill that void, with the emphasis being placed on the gradual, but steady, expansion of the authority, responsibility, and functions of the Protecting Power in safeguarding the welfare of prisoners of war.

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.

When the Security Council of the United Nations investigates an event or situation at the scene, it establishes a credible factual basis for its consideration of the situation, and the situation itself may be stabilized by the presence of the investigators. These important benefits may involve concomitant difficulties for the state in whose territory the investigation occurs, since the presence of international investigators may be conceived of as a limitation of its sovereignty. Objections may also arise from states seeking to obscure the realities of the situation being investigated, or from states which resist as a matter of principle any functions of international organizations which appear to derogate from state sovereignty.

Nationalization of foreign property and deprivation of contractual rights have again achieved prominence through measures in Iran, Egypt, Indonesia, and, more recently, in Cuba. The end of certain regimes often brings with it changes in political and social conditions. And yet recognition of acquired rights is the principal basis of intercourse in economic relations, as recognized by the law of civilized nations. International law, far from being an outgrowth of only Western concepts, is indeed an expression of fundamental principles embodied in long established legal systems throughout the world. Islamic law, for instance, which is of real significance for one sixth of the world population, in the Middle East, Pakistan, Southeast Asia and parts of Africa, clearly embodies the universal maxim of the protection of acquired rights.

An anomalous situation arises where governments desire foreign investments while at the same time rights in property and contractual relations are threatened and even destroyed. The Brazilian Judge Levi Carneiro said in the Anglo-Iranian Oil Co. Case:

On March 30, 1960, the United States and Eumania settled by agreement certain claims of American nationals against Rumania. The agreement provides for the payment by Rumania of a lump sum in discharge of those claims.

In recent years the device of the en bloc or lump-sum settlement of international claims has to some extent replaced the use of the mixed claims commission. Lump-sum settlements between nations are not unique to the 20th century, however, and as early as 1802, the United States paid Great Britain a lump sum of £600,000 ($2,664,000) to settle certain debt claims. In the 19th century also, the United States obtained lump-sum settlements from Prance, Spain, Great Britain, Denmark, Peru, Belgium, Mexico, Brazil and China. Early in the present century mixed claims commissions were used in deciding claims between the United States and Great Britain, war damage claims against Germany, Austria and Hungary, claims between the United States and Mexico, and claims between Panama and the United States. When the work of the United States-Mexican General Claims Commission remained uncompleted after two successive conventions which extended the existence of the Commission, and when practical difficulties beset the United States-Mexican Special Claims Commission, an en-bloc settlement of all claims was the only solution. That settlement signaled disillusionment with mixed claims commissions. Thereafter, the major international claims settlements involving the United States were on a lump-sum basis. The very next settlement was one concluded on October 25, 1934, with Turkey. It provided for the payment of a lump sum of $1,300,000 to settle certain outstanding claims of American citizens against Turkey.

In this study of India’s recognition policy the cases of China, Israel, Spain, and Vietnam have been singled out. The reason for selecting these four cases is that they have been a subject of controversy either in India or in the world outside India. It is hoped that the cases might afford a fairly good glimpse of India’s general policy of recognition. The plan is to discuss these cases separately in the general context of India’s relationship with each of these countries, a method that is more likely than any other to help the reader appreciate her policy. Toward the end of the paper a brief statement of general principles of India’s policy is given by way of conclusion.

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.

Option of nationality in its various forms played an important rôle in the international law and diplomacy of the second half of the nineteenth century and the first quarter of the twentieth. The concept undoubtedly reached a peak in popularity and demand in connection with the territorial settlements arising from the first World War, only to fall into disuse in subsequent years. The heyday of the idea of option in general international law and relations in the years following 1918 also coincided with the high point of the usage of the principle in Soviet diplomatic practice. Indeed, perhaps in the diplomatic repertoire of no other nation was option of nationality as frequently resorted to in this or any other comparable period as in the Soviet treaty arrangements of 1917–1924. Option in all its various juridical expressions occupied from the very first an extremely important place in the legal and political acts of the Soviet regime in its search for a modus vivendi with Russia’s neighbors. What is more, the experience of these first years firmly established option as an active and operative principle of Soviet foreign policy, in which capacity it has remained until the very present, whereas in the rest of the international community option has but rarely been revived since World War I.