A/PV.305 General Assembly

I call upon the Rapporteur to present the Sixth Committee's report on reservc.dons to multilateral conventions. 10. Mr. KURAL (Turkey), Rapporteur of the Sixth Committee, (translated from French): I have the' honour to submit to the General Assembly the Sixth Committee's report on its study of the question of reservations to multilateral conventions. 11. The question was placed before the General As- . sembly by the· Secretary-General, who desired guidance concerning the procedure which he should follow regarding reservations made by States as a condition for acceding to multilateral conventions. , 12. At the time the question was placed before the General AssemblY$ it had acquired a certain practical urgency in view of the special circumstances created by the possibility of the entry into force of the Convention for the Prevention and Punishment of the Crime of Genocide. Those circumstances made it imperative to decide whether States which had made reservations to which objections had been raised were to be counted among those whose accession was necessary for the entry into force of the convention. 1--' 13. It was only n.atural that during the debate onsuch a question certain important: and general problems should have been raised and discussed. Among them. was the problem of the right of States to make reservations and the effect of such reservations; there were also certain closely reIat~d problems, such as the competence of the Committee to give an opinion on the l~rger aspects of the problem, the organ of the United Nations to which the problem might be referred and the need for giving provisional instructions to the Secretary- General. 14. All these problems are of considerable interest from the general viewpoint of the development of internationalla:w and from the particular viewpoint of the procedure to be followed in the United Nations with regard to reservations to multilateral conventions. 15. During a particularly interesting debate which lasted two weeks, very divergent points of view and a number of different shades of opinion became apparent 18 October 1907, to which some sixty reservations were made when they were signed, and the ratifications con.. taining those reservations were accepted without any special requirements for the consent of other parties to ~ertain minor provisions which were included in th~ text of the convention despite its arguments are anaccl~ptable. Consequently, the adoption of a proposal of this'kind can only weaken international co-operation. 32. This fact should be particularly stressed since in the case in point we are dealing with an important convention-the Convention for the Prevention and Punishment of the Crime of Genocide. There is no need to prove that the United Nations is undou~tedly interested in seeing that as many States as pOSSible assume the obligation to take measures for the prevention and punisl11'nent of so heinous a. crime against the honour and conscience of nations as genocide. Consequently, in the the case of the convention on genocide, it is particularly impossible to agree to measures at variance with that convention and calculated primarily to restrict the number of parties to the convention by setting up artificial barriers that may prevent a numher of States which ac- , cept all its basic provisions, but m~,ke reservations re-' garding certain minor provisions, from acceding to the convention. 33. Despite the fact that there is no provision in the convention on genocide which prevents the submission of reservations, some delegations have maintained that the General Assembly should establish various limitations and set them forth in the form of provisional instructions to the Secretary-General. Such action is in conformity-neither with the text nor with the spirit and purposes of the convention on genocide; it is merely an attempt to make arbitrary additions to the convention which has already been signed by laying down conditions whereby new legal relationships would be created among the parties to the convention. It is obvious that the General Assembly has no power to do that. Natt1rally, the proposals to that effect which were introduced by the delegations of the United States and the United Kingdom in the Sixth Committee had to be withdrawn, as most delegations refu~ed to support such a view. 34. As regards the proposal that the International Court of Justice should be requested to give an adv~sory opinion on reservations to the convention on genocide, that proposal, too, was and is unacceptable 1:0 the USSR delegation. It follows from what I have l3aid that the ~gainst the amelldtnent to the draft repolution of the Sixth Committee introduced by the delegations of the Unii-<.!d States, the United Kingdom and other States [A/149S] ; I shall explain why it did so. 36. Article XVII of the Convention on Genocide deals in detail with the Secretary-General's duties as depositary of the Convention, and provides that he shall notify i.~e States concerned of all ratifications. The Secretary-General must do that irrespective of whether such ratifie~ticns contain reservations or not. The Convention cl~~:; not, however, place upon the Secretary-General the duty of soliciting the approval of the parties to the Convention in respect of reservations made by other parties, as is proposed in the amendment. The delegation of the Soviet Union considered that this approval could not be adopted, since the Assembly is not competent to take decisions which might impose on parties to multilateral conventions already signed and ratified by several States, such as the Convention on Genocide, obligations which are not prescribed in those conventions. 37. The USSR delegation regarded the amendment as unacceptable also because, as I have already pointed out, the convention on genocide clearly lays down the duties of the Secretary-General as depositary and does not establish any limitations or special procedure for the submission of reservations when the convention is ratified. ' 38. For these reasons the delegation of the Soviet Union regards the resolution adopted by the General Assembly on the recommendation of the Sixth Committee as contrary to the real aims of the Organization, which ~re to develop and strengthen international cooperation. 39. The USSR delegation urges that the greatest possible number of States, both Members and non-members of the United Nations, should be parties to so important a convention as the Convention for the Prevention and Punishment of the Crime of Genocide, that heinous crime against lrumanity. 40. The PRESIDENT (translated from Fretteh): Two delegations, those of Peru and Poland, have asked to speak to explain their votes. I shall limit the time allowed for each explanation to seven minutes. 41. Mr. MAURTUA (Peru), (trmJslated front Spanish): My delegation abstained from voting on para... graph 1 of the operative part of the resolution proposed by the Sixth Committee, because it considers that the function of the International Court of Justice is not to ' legislate or to create new rules but merely to apply the ex:isting law, whether in the form of accepted norms" general principles or established custom. States, but not all of them Members of the United Nations. The request to the Court, to our mind~amounts to an attempt to revise a document drafted and approved by the United Nations, because the procedure provided for in the resolution is not laid down in the te:x:t of the convention itself. What is more, it is a well established principle of international law that the right to interpret a treaty or to ask for an int,erpretation is reserved only to the p~rties which have sig:ned and ratified the treaty. 49. For this very reason, we opposed. the reference of the case to the International Court of Justice. We also opposed any decision on the substance of the question, since no such decision can change the basic rule of law........ the right of every State to write into an international Secretary-Gene~'alis the depositary. 51. The resolution just adopted by the General Assembly submits the first issue, that iSJ the particular problem of reservations to the convention on genodde, to the International Court of Justice for an acJ.";tsory opinion, and, at the same time, it refers the secolldis15Ue, that is, the general problem of reservations to multi~ lateral conventions> to the International Law Commis... sion for study. 52. In order to explain the votle of my delegation against paragraph 1 of the operative part of the resolution, my delegation deems it nec{$sary to discuss briefly what was the real problem presented to the General , Assembly as a result of the item proposed by the Secretary-General. The Secretary-General submitted· the general question of reservations to multilateral conventions [A/1372] to the attention of the General Assembly because, as the depositary of conventions adopted by the General Assembly and multilateral agreements concluded under the auspices of the United Nations, he desired guidance concerning the procedure he should follow regarding ratifications and accessions to such· conventions or multilateral agreements made conditional upon reservations. The Secretary-General argued that the problem had acquired curr~nt importance in connexion with the convention on.genocide because a dispute might arise as to the date of its entry int& force. . 53. While the question was pending in the Sixth Committee, however, .the Secretary..General announced that a sufficient number of ratifications· had been received to permit the entry into force of the ~o'lVention on genocide, even disregarding those ratifications andaccessio~s with reservations. The Secretary-General noted that the problem of the entry into force of the convention had thus been solved. He noted further that the problem of the legal consequences deriving from the deposit of the instrument of ratification of the Philippines and the instrument of accession of Bulgaria, which included reservations which had met with objections from one Member State, still remained to be , settled. That problem, however, had ceased to have any urgency. 54. One would have thought that the cunvention on genocide no longer posed.any special problem for the Secretary-General, apart from the general problem of the legal effect of reservations to multilateral conventions of which he is the depositary. So that the only problem that was in fact before the Sixth Committee, and before the General Assembly when the resolution was vo~ed as a result of the item proposed by the Secretary-General, was the general problem of the legal effect of reservations to multilatetal eonventions. 55. My delegation was in favour of the re~olution 56~ Apart from these logical and practical considerations.. however, my deleg-a.tion had strong legal objections to having the General Assembly take the initiative in referring specific questions relating to the application of the convention on genocide to the International Court of J1-1stice. My delegation merely wishes to reiterate the legal aTguments it advanced in support of its position in the Sixth Committee, which is that it should be left to the contracting parties themselves to submit any disputes as to the interpretation or application of the convention on genocide to the International Court of Justice, as is provided in article IX of the convention, and that it is not for the General Assembly but for the parties directly concerned to formulate the issues to be submitted to the judgment of the Court. 57. The PRESIDENT: I should like to remind you that each speaker is permitted seven minut~s only. 58. Mr.INGLES (Philippines) " My delegation only wishes to put on record the fact Ij,hat it voted against paragraph 1 of the operative part of the resolution in Qrder to safeguard its position. Convention on the Declaration of Death of Missing' Persons: reports of the Secretary-General (A/1329) and the Fifth Committee (Aj1506) [Agenda item 48]

I wish to point out that the General Assembly is not l'iequired to reach a decision on this item. Pursuant to resolution 369 (IV), a United Nations Conference on Declaration of Death of Missing Persons was convened and met at Lake Success from 15 March to 6 April 1950. A convention was established and opened for accession by States. 60. Article 8, paragraph 1 of that convention provides for the establishment within the framework of the United Nations of an international bureau for declarations of death, the seat, composition, organization and method of operation of which shall be determined by the Secretary-General. Article 15 of the convention-the part in which we are interested-states that the estab- . lishment of the bureau provided for in article 8 shall require the approval of the General Assembly of the United Nations. All that the Assembly need do, therefore, is to approve or not approve the establishment of the bureau. [resoluti01t 3.69 (IV)] took a different path. 68. The conference which met in New York in the sprik1g of 1950 drafted and adopted the Convention ott the Declaration of Death of Missing Persons. ' 72. There can be no doubt that if the governments concerned arrange to exchange information at the proper time on steps taken under the convention for the issue of declarations of death of missing persons and on the decisions of the tribunals on such matters, there will be no need to set up a special organ such as the above-mentioned bureau. If tliat one condition is fulfilledl all the work .which is to be done by the proposed bureau can certainly be performed directly by the competent judicial or administrative authorities of the States concerned. 73. Incidentally, the report of the Advisory Committee on Administrative and Budgetary Questions, dated 6 November 1950 [A/1489], shows that the establishment of the bureau would involve considernbleexpense. At a very tentative estimatel the cost of maintaining the bureau during the initial period alone would be atleast $40,000. 74. It should also be noted thatlalthough article 8 of the convention provides for the establishment of the bureau, the General Assembly is notl of course, bound by that provision in the sense that it must automatically approve the establishment of the bureau. That is the Belgiuml Denmarkl Sweden and UruguaYI that is, by . the same delegations whose proposal 8 led the General Asse~blYI last year, to decide [resolution 369 (IV)] to convene the conference that drew up the Convention on the Declaration of Death of Missing Persons. 77. The President has already put the essence of the question far more succinctly than I could do. I should like, however, to say a few words about what the Soviet Umon representative has just said. . . 78. I should like first to point out to him that, under this cOllVentlOn, various kinds of tribunals are competent to issue declarations of death. The following tribunals are hsted inartlcle 21 .paragraph 2: 'I (i) The tribunal of the place of the last domicile of. the mIssing person or of his last vqluntary or involuntary residence; U(ii) The tribunall in the country of which the missing person was a national, competent under ap.. plicable domestic law orl in its absence, the tribunal of the capital of that country; U ( Hi) The tribunal of the place of the situs of propelty of the missing person; it(iv) The. tribunal of the place of decease of the missmg person; u ( v) The tribunal of the place of domiciie orresidence of the applicant in the case of an application filed by allY ot the following relatives: ascendants, descendants, adopted child.ren and their issue, brothers and sisters and their issue, uncles, aunts~ or spouse.': 79, It is therefore possible for several tribunals to deal with· a matter. There is consequently a~eed for a co-ordinating body that will prevent duplication. Under article 9, the bureau provided for in article 8 of the convention will have the duty of co-ordinating information in the following manner: a tribunal to which an application for declaration of death is made Oft which has initiated such a proceeding on its own rnotionl shall, within hfteel1 daysl communicate to the bureau such of the following information as it possesses: full name, nationalitYI place and date of birth of the missing pet.. S011, his habitualresidencel his last voluntary or in.. voluntaty residence, the names and addresses of his 8 See OJjicial Records of the Getzeral A.ssembly, Fourth Session, Pltnary Meetings, Anne~, doc!Jment Al1l92.. ((The Ge·ne1'al AssemblYl ({Having regard to article 15 of the Converition on the Declaration of Death of Missing Persons established by the United. Nations Conference on Declaration of Death of Missing Persons (A/Conf. 1/), "1. Decides to approve the establishment of the International Bureau for Declarations of Death pro" vided for in article 8 of the aforementioned convention; "2 Decides that the expenses of the International Bureau should be assessed upon such non-member States as may become parties to the convention, in accordance with the principle adopted in this respect in connexion with the expenses of the International Court of Justice/' • The draft resolution w(;;s adopted by 38 votes to 61 with'13 abstentions. 83. The PRESIDENT (translated from French) : I call upon the representative of Poland, who wishes to explain -his vote. 84. Mr, KATZ-SUCHY (Poland): The delegation of Poland wishes to put it on record that it opposed the conclusion of the Convention on the Declaration of Death of Missing Persons. 111 accordance with the Charter and the general principles of law, the problem involved is one which is essentiaHy within the domestic jurisdiction of States and should b~ decided by internal legislation only. The delegation of Poland holds, therefore, that there is no need to establish.the organ en" visaged in the convention. Poland is undoubtedly one of the States concerned with the problem and, unfortunately, is familiar with it. But our practice has shown that the competent organs of the State, in the normal course of their activities, can deal with it adequately. 85. We therefore voted a.gainst the establishment of the International Bureau for Declarations of Death. The points raised by the representative of Sweden can" not change the situation, as the existing conflict of legislation can never be solved by this type of bureau. Question of the representation of China in the United Nations: membership of the special committee

We cannot proceed to take up the ninth item of our agenda for today, as it concerns a report of the Ad Hoc Political Committee, which is in session at this time. I should like to take advantage of the few minutes remaining to us to discharge a duty placed upon me by the Assembly. 92. At the first meeting of this session, on the proposal of the Canadian delegation~ the Assembly adopted a resolution on the representation of China instructing the President to nominate seven members to form a special committee, such nominations to be submitted to the General Assembly for approval. With your permission, I should like to submit for your approval the list I have in mind. 93. I propose that this special committee should be made up of representatives of the following States: Belgium, Canada,. India, Iraq, Mexico, Philippines, Poland. 94. Are there any objections to the proposed compoM sition of this special committee? 95. Mr. MALIK (Union of Soviet Socialist Republics) (translated from Russian) : The USSR delegation considers that, in order to approach this question fairly, . it is necessary to select the members of the committee on a different basis from the one referred to by the President. . 96. A cursory study of the list of States which, at... cording to the President, should be included in this committee shows, unless I am mistaken, that only two fif.~cl and subseribed to by SOllle committee, the composi.. United Nations haverecogni~ed the People.'s Republic don of which prejudges the issue, will surely not help of China, while the remainder have .:not recognized it, tllis. Organization in the solution of those problems. cannot be considered convincing. Hitherto membership 110. Th'e 1)RESIDEN1~ (tran~'lated fram Fr8nl~h): of the United Nations has never been based on the prin.. I 1 Id t f 1 · . ciple of recognition. The Members of the United Na.. .. S10U p~:.laps re 'res ~ 1'epresentatlVes' men10fles a tions determine their stand in the light of the principle little. As I bave said already, the resolution was adopted that lack of recognition or the absence of diplomat~c at the first meeting of the session. ~ehe committee We relations as between particular Members of the Qrgant.. ~\re now to appoint is 1l0t to settle the question of the zation is not an obstacle to their co-operation in the rept·esentation of China. The resolut:iol1 says that the United Nations in the intel'ests of universal. peace and comm.ittee is Uto considel' the qt.1estion of Chinese reprethe development of friendly relations and co-op~ration sentation and to report bac1<. with recommendations; to among nation&. the present· session of the General Assembly, after the Assembly shall have considered item 62 of the pro" 118. I consider, therefore, that there are insufficient visional agellda (Cuban item)U." The report and l'ecomgrounds for.adopting the principle on the basis of which tnendations of the committee will therefore be discussed the President has made his proposal. As far as I reby the General Assembly. member, the Secretary-GeneraPs memorandum on this 111. In order to avoid a leng.thy discussion. we mig·ht question [S/1466], issued, I believe, in .March 1950, -stressed the point that the decision taken on thi$ queschoose one of the two following alternatives: either I tion by the organs of the United Nations and the shall put my proposal to the vote~ or the Assembly will Member States should not be based on the principle of take a vote by secret ballot. • recognition or non..recognition. Hence, if the President 112. I shall 110W put the matter to the Assembly. Will bases his selection of the members of the committee on members in favour 0·£ a vote by secret ballot kindly the fact that seventeen Member States of the United raise their hands. Nations have accorded recognition to the Government 113. The USSR representative has asked for the of the People's Republic of China, while the remainder floor; he may speak only on the vote, as the voting has have not, I consider that this cannot constitute a valid started. . argument. 114. M:r. :MALIK (Union of Soviet Socialist Re- 119. In the light of the foregoing considerations, the publics) (tran.slatecl fronl Russian) : The delegation of delegation of the Soviet Union proposes as a third althe Soviet Union has suggested ~ third alternative. The ternative that we should defer voting at the present President bas made a proposal and suggested the States time and return to the question when we meet again which should compose the con1mittee now under discuseither this afternoon or tomorrow morning; in this way sion. Representatives sbould be given~ a chance to think all representatives will have an opportunity to consider over the President's proposal before a vote is taken. I more carefully the membership proposed by the Presi.. consider that delegations have a dght to ask.the President and will then be able to express their views on the dent to give them an opportunity to do so, if only for composition of the committee by open or secret ballot. two or three hours. That is the rigbt of every delega::- . 120. The USSR delegation therefore formally proposes don which intends to vote on any proposal submitted that the vote on the composition of this committee not in atcordance with the rules of procedure. In acshould not be taken here and now, but should be cordance with the ntles of procedure, a proposal may be deferred. put to the vote only if it is submitted twenty-four hours 121... The PRESIDENT (translated from Fr(mch): .. before the opening of a meeting. Mr.' Mali~, if you had submitted your proposal in that 115. The question of the membership of the commitform at the outset, I should have accepted it at once.. tee is an important one and I cannot agree with the You have asked me, as a matter of couttesy no doubt, to President that the committee will be of no importance, review my proposal or to present & :new one. I think 8ince it will merely make recommendations. It is not as that is not necessary. If, after two months of thought, I simple as that. \Ve are setting up a committee to study have not arrived at a better proposal than this one, a few a most important question, to reviewaU the available more hours cannot change anything. material on the subject, and to .study the history and 122.· Nevertheless I find it quite normal that you should <;ubstance of the matter as well as the legal, political and ask for time to consider the matter~ so normal, indeed, e~en moral aspects of this question. The committee will that ~t is not even necessary to put your proposal to the th~refore have to give most seriou$consideration to the vote. Fot my part, I accept your proposal. That is what task assigned to it and submit its recommendations to I should have done from the very beginning if you had the General Assembly in plenary meeting. submitted it in that form. 116. It is our experience th&t only rarely dtks the As.. 123. We shall i:herefore proceed to the vote either this sembl,- $et aside or reject the recommendations of com.. aftern<?on,.towards the. ene! of th.e meeting, if you think mittees.. It is therefore impossible b) agree that this parthat wIll gIve you enough tIme to consider the matter, or ticu1ar ~nunittee will be of no importance. That is my tomorrow. I.a.sk you, howeve.r, not to b..·egin a debate on fint pomt. the substance of the question. I shall 1:llJtgive the floor to anyone for that purpose, because we hald come to the vote. T)he USSR proposal concerned the vote; it was of Item 610£ the agenda as adopted. [Agenda'item 21] Mr. L6pe~ (Philippines), Rapporteur of the Ad Hoc Political Committee, preslmted thfJ "eport of the Com- 1nittee and the accompanying draft re,solution (A/1457). 124. The PRESIDENT (translated from French): I shall first ask· the General Assembly whether it wishes to have a debate on this item of our agenda. A v,'ote was taken by show of hands. 125. The PRESIDENT (translated from French): Thirteen votes have been cast in favour and 24 against; thus more than one-third 'of the members present and 'Voting 'have expressed the desire that a debate should be held. I therefore call upon the first speaker on the list, the representative of France. 126. Mr.PLAISANT (France) (translated from, Frp.nch) : Since the General Assembly is called upon to take a decision on the draft resolution approved by the' Ad Hoc Political Committee after that organ had considered the report of the United Nations Comm~ssioner in Libya [A/1340 rs and A/1405] and the reports of the Administering Powers in Libya [A/1387 and A/1390 and Add.1], the. French delegation deems it necessary to make its position clear. 127. As was recalled in the Ad 'Hoc Political Committ(~e by the representative of France, the French delegation was unable last year to support the recommendation concerning Libya [resolution 289 A (IV)]. It abstained, not because it objected to the principle set forth in that recommendation-the establishment of an independent Libya-but because it felt that the methods prescribed by the General Assembly to give effect to that principle failed to take sufficiently into consideration the geographical, political and economic factors of the problem: It drew the Assembly's.atten.tion to the di,sadvantages and even dangers. which might result from the ~;nforcement of provisions inspired by the need t1,) maintain stability and. Sf,>turity in an area whose development, like that of every other pat"t ()f the world, should proceed smoothly and without hitches. " 128. The new resolution suggested by the Ad Hoc Political Committee, however, not only.'confirms the recommendations contained· in resolution· 289 A '(IV), but goes even further. It lays down arbitrary lcules for the achievement of the successive stages in which the constitutional development of Libya is to take place, it specifies further detaiis concerning that development and the transfer of authority, and it thus strengthens the already debatable provisions adopted last year and, moreover, infringes upon the natural rights and prerogatives of the population. ~~ ((Libya, like any other State, cannot base itsindependence on the mere constitutlcn ofa government. If the new State is to acquire and maintain a stable position in the family of nations, a properly organized and competent administration with a carefully planned budget, supported by a viable economy, is. no less essential. "None who havle read the preceding chapters will be astonished if the Commissioner expresses the belief that the establishment of' an effective administration, a sound financial system, and a viable economy offering the prospect of a gradually improving standard of life for the Libyan people, is certain to take more time than the period set for the achievenlent of Libyan independence."6 130. In the light of this report and of the facts of the situation the French delegation was constrained to make certain reservations in the Ad Hoc Political Committee with regard to the new recommendations. However, in order to dispel any doubts, I shall say at,once that it does not intend tQ vote against the adoption.of the draft re:I()!ution now before us. The French Government, which is bound by the obligation it assumed when it signed the Treaty of Peace with Italy, and which is always. anxious to play its part j,l]. furthering international co-operation, will accept the General Assembly's recommendation: It will take the necessary measures, as it did in the case of the resolution adopted in 1949, to ' implement that recommendation, without in any way prejudging the results of the work of the Libyan national assembly. The French Government hopes that that organ will be duly representative of the peoples concerned and will reflect the specific characteristics of the three territories which make up Libya, because,. in the final analysis, it is the aspirations and wishes of those peoples that must determine the Libyan constitution, which must in no circumstances be imposed from without.' .. 131. The French d~legation notes the statement made by the Ad Floc Political Committee to the extent that no' provision of the draft resolution was intended to have a restrictive meaning, excluding certain. sections of the population from equal participation.in the life of the new State.' 132. In conclusion,' I wish to confirm, on behalf of my delegation, that France, both as an administering Power and through its representaitve on.the United Nations Council for Libya, will abide by the General Assembly's resolution and the wishes of the various peoples of Libya as expressed in the future national assembly. The meeti1zu rose at 1 p.m. (\ Ibid., pages 36 and 37, paragraphs ·259 and 260.