S/PV.76 Security Council

The text of the credentials of the Netherlands representative was distributed to the members of·the Security Council and l suggest that we accèpt the credentials. 1 •Voir 1 See Supplement No. 6, Annex 10, of the Security Coun- dl OffiCIal Records, First Year, Second Se..ies. • See Supplement No. G, Annex 11, of the Security Coun- cil Offièial Records, First. Y<:?r, Second Senes. (Mr. Beelaerts van Blokland, Rapporteur of the Committee of Experts~ took his seat at the Council table.) Mr. BEELAERTS VAN BLOKLAND: In present- ing the report of the Committee of Experts, I feel I have very little to add. The Statute of the International Court of Justice is based upon the St~tute of the Permanent Court of Inter- national Justice and, therefore, the Committee, in formulating the conditions under which it propœes the International Court of Justice shaIl h~ open to States, not parties to the Statute, adapted the conditions which'were in force wlder the Statute of the Permanent Court to meet present circumstances. The prlnciples underlying the proposed reso- lution are: (1) To give the fieest possible access to the Court to States not parties to the Statute. (2) Not to put any new.obligations on the palties to the Statute. The parties to the Statute will have the advantage of bringing' before their own Court any State not a party which is willing to appear, but under no con- dition can the parties to the Statute be forced to appear before the Court against their own will and consent. ~ The report of th~ Committee does not answer some questions raised in the Council when it discussed for. the first rime the matter now under consideration, in particular the question of how the resolution of the Council of the League of Nationshad worked in practice.· The Commit- tee found that only two particular declarations had been made, both of them by Turkey and one the famous Lotus case, and general declara- tions have only beenmade on the following two occasions: on 22 April 1937, by _the Princi- pality of Monaco, and on 22 March 1939, by the Principality of Liechtenstein. Before enrling, I fee! 1 should mention the assistance given to the Committee.by the differ- ent branches of the Secretariat. At the request of the Committee, the Legal Department pre- pared a memorandum on the. problem and a draft for the resolution. They were presented byMr. Kerno, whose lucid opinions materially ..hefpèdthe Committee to accomplish its task.

.Does any· meml;>er of the Security Council wish ta make an observation on the report of the Chairman of the Commit- "A State, in making such a general declaration, may, in accordance with Article 36, paragraph 2, of the Statute, recognize as compulsory, ipso facto, and without special agreement, the jurisdiction of the Court, provided, however, that such acceptance may not, without explicit agreement, be relied upon vis-à-vis States parties ta the Statute. wmch have made the declaration in conformity with Article 36, paragraph 2, of the.Statute of the International Court of Justice. " (3) The original declarations made under the terms of this resolution shalibe kept in the custody of the Registrar of the Court, in accordance with the practice of the Court. Certi{ied true copies thereof shaH be transmitted, in accordanœ with thè practice of the Court, ta ali States parties to the Statute of the International Court of Justice, and to such other States as shali have deposited a declaration under the terms of tbis resolution, and to the Secre. tary-General of the United Nations. "(4) .The Security Couneil of the United Nations reserves the' right to rescind or amend this resolution by ~ resolution wmch shaH be communicai-ed-to the Court, and, on the receipt of such communiCation and to the extent determinedby thenew texte, la vous donner lecture du Je bre le forces armées de l'Axe. Ml'. LANGE (Poland): Yes, 1 propose that as a special resolution.

If there is no observation on this item of the agenda, 1 will put the resolution prepared by the Committee of Experts to a·vote. . The' resolution was adopted unanimously. The PRESIDENT: 1 shaIl now l'cad the text of. the draft resolution submitted by the representative of Poland: " "In accordance withthe spirit of the resolutions adopted by the Gener~ Assembly in LOIJ.don on. 9 February and 10 February 1946, theabove resolution does not apply to States whol;le.regimes have been installedwith the help .of armed forces of countries which have foughtag~tthe United Nations so long as these regimes are in power." Ml'. LANGE (Poland): 1 should like to say a few words in support· of theresolution which 1 have presented to the Council. It is well known to·this Council that States.whose regimes have been instaIled with the help of the anned forces of the Axis are.barred from membership in the United Nations.. Our delegation fumly believes that any regime which was installed, with the aid of the Axis Powers is not capable of living up to these conditions. Quite recently a trial was carried on in Nürnberg indicting the leaqers of one of the most important Axis States for coriunitting crimes against humaniry and international law, and proper sentences have been passed. It is therefore our conviction that any regime which was brought into power by thOIle who 'today have been indicted before the court at Nürnberg, is not capable of giving us the guarantees necessary to becomea party to an L1Jl!Ïtution, the very purpose 'of which is the preservation of internationallaw and justice. For tlris reason, we submit the resolution which has just been read by ~e President.. Mr. JOHNSON (United. States of America): 1 would like· to express my gratification that the resolution we have just voted upon was passed unanimously. Ithink that action of the Council will be greeted with the approval of all supporters of the United Nations and of its ideaIs. 1 would aIso like to say thaï the action of th~ representative of Poland, in voicing his support for the resolution in the report and saying that he would not bring up· his own resolution until afterwards, is a matter aIso for appreciation. We all know and understand the attitude of the P.olish Government regarding the relation of Franco Spain with the Court. It is a matter of gratification that the Polish representative has been so moderatem putting forward bis view. It .is hardly necessary for the representative of the United States to go into any detail before this Coup.cil to demonstrate the attitude ofhis Govemment towards Franco. Spain. 1 think that has been made dear in numerous debates before this Council. We have joined withother à daré ensuite. tous l'égard. de satisfait se!1tant superflu poser Gouvernement à l'égard Je nombreux My Governmentis, however, opposed in principle to the proposal in the present resolution to exclude Spain from access to the International Court of Justice. Our position is based on what we conceive to he a fundamental principle. We feel that the preservation of this principle is far more important than any temporary advantage which might· be gained from giving the Franco regime more evidence of ,the condemnation of the United Nations. It is true that wc have concurred in barring Spain from access ta certain subsidiary organs, or otherwise related organs, of the United Nations. We feel that action was justified on practical and procedural grounds. In the case of the Court, however, the fundamental pri.'1èiple of justice is involved, and we feel that the principle we wish to preserve is of such importance that whatever our views on the Franco regime may be, we cannat take action against that principle. Great efforts were made in· setting up the International Court to assure that it would remain for aIl time an impartial tribunal dispensing equal justice to aIl on the basis of law. We areopposed to allowing the question of access to the International Court to he affected by political considerations, however legitimate those .considerations may be when the question of membership of a Government such as that of Spain is undei consideration for other organizations. We believe that the International Court, as the United Na,tions' judicial organ, should have the broadest possible jurisdiction in legaldisputes between nations. It is in t4e interest of aIl the United Nations that the Court shpuld bi:: given aIl Tlecessary powers to facilitate the peaceful settlement of internationallegal displJtes. We do not feel that the right of access to the International Court should be denied to any State willing to submit itscase to this impartial tribunal in accordance with the conditions laid down by the Security Council in the l'esolution which we have just voted upon. .Wc donot propose that ~pain be made a party to the Statu~~. We are concerned simply that the International Court, as a world judicial organ, should not bar any State from access. In . our country and, l am sure, in many others, we.abide by the principle that every man, ~ven a. criminal, is entitled to impartial justice. The "world has only recentIy seen this principle applied hy agreement of thePowers to the leaders of·the enemy {ascist· States who started the secondworld war. Mr. FAWZI (Egypt): The representative of the United States of America has already said most of what 1 intended ta say. The representative of Poland has in part done the same especially with reference to the Council's good sense in condemning the actual regime il} Spain. l, however, cannot agree with the representative of Poland, when he gaY~ us sorne illustrations of cases of the Spanish Government being exc1uded from sorne organs of the United Nations. 1 think that those examples do 'lot really apply to the present case. As to the lack of, or the insufficiency of, guarantee.s that the present regime in Spain might give us in order that decisions made by the Court will be actuaIly carried out, l think we have already a stipulation in the Charter, in paragraph 2 of Article 94, which applies' even to actual Members of the United Nations. 1 want only ta add that my Govern~nent has always been in favour of as much upiversality as possible in the United Nations, and it il) consequently most gratifying to our deregation to see a unanimous resolution today. This gives us the good and refreshing feeling that we have been able to keep the discussion on this' m.atter intact, and on a level above ordinary discussion. 1 think tha.t we aIl havè shown that Dn certaLTJ. occasions we can forget purely political considerations for more important, univerSal and farsighted considerations. We have shown the world, by our unanimous approval today, that none of us is ready to àdmit any possibility for anybody to slffer from a denial of justice. We have said, in other words, that there will be justice for aIl. Therefore, masmuch as 1 approved of the proposal presented or mentioned in the report of the Committee, l cannot agree to any amend· ment or any other resolution prepared by the Polish representative. Mr. GROMYKO (Union of Soviet Socialist Republics) (translated jrDm Russian): The representative of the USSR has already stated his delegation'sview on this matter in the Committee of Experts. Bere' at the Security Council meeting 1 would like to re-state that 1 consider the resolution proposed by the Polish representative to be conectand that l shall support' this rèsolution. We cannat consider that the matter under consideration is not a political' question. ,Since when have facts concerning a fascist State, a fascist regime, c:eased ta be political facts? socialistes impossible l'objet tian se Mr. DE LA TOURNELLE (France) (translated trom French): In the course of their short history, the United Nations have repeatedly emphasized the fact that certain nations have debarred therr?",:lves from a place within the international community. Consequently the French delegation considers it essential that in no ch'cumstances should any concession be allowed in favour of States whose regimes have been set up_with the assista IlC~ of the military forces of countries which have fought against the "Tbere is no intention of intedering in the internal affairs of Spain. The Spanish people themselves must, in the long run, work out their own· destiny. In spite of the present regime's repressive measures against orderly efforts of the Spanish people to organize and give expression to their pr>litical aspirations, the three Governments ue hopeful that the Spanish people will not again be subjected ta the horrors and bitterness of civil strife. "It is hoped that leading patriotic and liberal-minded Spaniards may soon find , means to bring about a peaceful withdrawal of Franco., the abolition of the Falange, and the establishment of an interim or caretaker government under which the Spanish people may have an opportunity freely'to determine the type of govemment they wish to have and to choose their leaders." It is not, in my opiniun, a question of ha ;g justice imparted to aIl. That principle has been already safeguard~d. It is not a question of closing the door to people or ":0 a State for political considerations. The question is whether the regime of Franco, which has been condemned by all the United Nations, could, in the name of the Spanish nation, sue and bring before the Court any other nation? We could also consider what would be the implications if any other nation brings to èourt the regime of Franco. For those reasons 1 think that it is only to act 10gicaIly, within the spirit of the declaration of London, to accept the Polish proposaI, and for that l eason Mexico will vote in favour of it. Mr. LAWFORD (United Kingdom) : His Majesty's Government is of the opinion that in setting the general conditions of access to the International Court of Justice by States not parties to the Statute, the Security Council should recognize that the Court is a judicial tribunal, a nonpolitical body which should not necestarily be put on the same basis as the Secretariat of the United Nations and the Security Council in the matter of relations with Governments ineligible for membership in the United Nations. The resolutions passed by the General Assembly on 9 and 10 February of this year, referring to the present regime m Spain, were designed to put that Government at a disadvantage. The adoption of the proposal now made by the representative of Poland would exclude the. possibility that the present Government in Spain might consent to the submission of a legal dispute to the Court. This might weIl work to the disadvantage of a Member of the United Nations having a legal dispute with Spain, because the use of machinery provided by the Charter for the settlement of legal disputes would not be available for that dispute. AState which is not a party to the Statute could not, under the resolution which the Council has just passed, bring before the Court a case against a Member of the United Nations wi,thout the latter's explicit consent. In the view of His Majesty's Government, therefore, there appears to be no objection to aIlowing to aIl States not parties to the Statute an equal oppor- Ml'. HASLUCK (Australia): 1 think aIl my colleagues will appreciate that the AUl'7mlian position regarding the Franco regime in Spain has been made abundantly clear on several occasions. We have participated in the resolution of the Genetal Assembly on which the Polish resolution is based, and in this Councillast May and June our Foreign Minister, Dr. Evatt, spoke on the issue of Spain as plaiply as any member of this Council, and did as much as he could to see.that action was taken designed ta bring ~.bout removal of the Franco regime. Action was not taken in June and we cannot go back to that stage now. But while the position of the Australian Government regarding the exiStence of the Franco regime is quite clear, we cannot follow completely the logic belllnd the resolution which is now placed before us by the Polish representative. The situation fadng the Security Council at the moment seems ta us to be a very simple one which has become rather confused by the introduction of a matter which does not rea1ly belong to it. What the Security Council is engaged upon at the moment is the drawing up of certain conditions in accordance with Article 35, paragraph 2, of the Statute of the Court. That paragraph of the Statute states that the conditions under which the Court sh.ill be open to other States, that is, States not parties to the Statute, shall he laid down by the Security Council. That is what we have been attempting to do. In the resolution which the Council has aIready carried, the conditions have been set clown under which States not parties to the Statute may approach the Court. 1 should like to emphasize that the task laid upon the Council by An:ide 35, paragraph 2, is the task of dT ,vmg up conditions which will have generaI application. The Council is not called upon at the present tinle to make mIes for particular cases. The effect of the acceptance of the Polish resolution would be to create yet an additional The Australian delegation also agrees with the view which was put forward by the reflr"...sentative of the United States of America very clearly, name1y, that in stooping to deal with illis one particular case,we are tampering sorne\' -'~at with the principle of justice which is the basiS of the Court. The Court is different from the other argans of the United Nations inasmuch as it atternpts ta administer law according ta the principles of justice and it is not, as we understand it, an organ which takes into account political considerations. For that reason, we do not think that political considerations should be imposed upon the Court from outside. Then, if we pass from those general questions of theory ta the practical considerations, we might ask ourse1ves what actually will be the effect on the Franco regime Of the passing of this present resolution? If we did not carry the Polish resolution, the Franco Government would be in exactly the same position as other nonparties to the Statute. That meaps that, before participating in the Court, they would have ta make either a general or a particular dec1aration, but, as the report of the Committee of Experts points out, the mere making of that declaration does not ipso facto give them any rights ta brine other States mto Court. If 1 might direct your attention ta page 2 of document S/169, you will find there a summary by the Committee of Experts which 1 think sets out our position very c~early. The report says: "..' . It should be emphasized that the mere deposit of a declaration does not suffice ta confer on the Court, jurisdiction over a specific case. A State party ta the Statute cannot, without its consent, be brought before the Court by aState not party to the Statute. The mutual consent of bath parties ta the dispute, either for a particular case or generally for future cases, is required for the Court ta he seized of a dispute. We can see no immediate practical politica! value in carrying this resolution, but our main objection to it is that it seems to be outside the field of our present discussion, the carrying out of our duties undcr Article 35, paragraph 2, of the Statute, and for those reasons, partIy practical, partIy constitutional, we feel that we cannot support the Polish resolution. Ml'. LouDoN (Netherlands): 1 have listened with a great deal of intere.st to what has been said by the representatives of the United States of America, the United Kingdom, Australia, Brazil and Egypt. 1 can add but very little to what has been said by them. It seem to me that perhaps we have not quite grasped, or perhaps we have not quite followed entirely, the tendency of the resolution which We have unanimously adopted. 1 cannot read t..hat resolution, which l think is a good resolution, without stopping for one moment to consid~r its tendency and its character. It seems to the Netherlands representative that its character is eminently non-political. Its tendency, in the opinion of the Netherlands dele· gation, is to encourage the rulë of law; it is even perhaps more, it is to open the door for a general :mIe of law. For that reason, 1 think that by adopting this resolution unanimously, the Security Council has gone a great way towards the realization of one of the ideé'.Is of the United Nations. The Polish draft resoluti~l1, as 1 see it, with its mere reference to the resolutions in London of 9 and 10 February, is a political resolution. Such a resolution may weIl have the power, if adopted, of resttkthlg the general plan and· the Mr. ::ISlA (Chin~): It was not my intention ta address the Council today, but since everybody has spoken, 1 feel 1 am called upon ta clarify our,position. The Chinese member on the Committee of Experts, as you know, was not able to support the Polish resolution, and our delegation has not changed its position. Sorne of our reasons have already been stated. 1 will just mention two. We regard barring Franco Spain from a chance to settle differences with others by pacifie meli'.ns, especially differences of alegal character, as too extreme a step to take, for the proposed resolution does limit and almost denies the possibility of pacifie settlements of disputes between States by recourse to the Court. Our second reason is this: this resolution might, if passed, create and establish what we consider ta he an unfortunate or dubious precedent or ruling. The point has been raised very often at this Council whether the Security Council is a political body or a quasi-judicial body. Our feeling is that it is not a purely political body. In connection with the functions of the Security Coundl, Article 24 of the Charter says: "In discharging these duties the Security Council shall act in ac~ordance with the purposes and principles of the United Nations." The purposes and principles of the United Nations, found in Article 1, are: "To maintain international peace and security . . . in conformity with the principles of justice and international law . . ." It seems that even the Security Council is required to have some regard for the principles of internationaliaw and justice. Assuming that we are a political body or dominated by political considerations, even then 1 do not think it is quite wise or quite appropriate for us to make the Ml'. LAL~GE (Polaud): l have listened ta our ùiscussion with great interest and l was particularly gratified ta have found the degree of unanimity which pervaded it on the question of the attitude of this Council ta the Franco regime in Spain. Our delegation and our Government are very gratified ta know that all the Governments represented in this Council continue in their attitude toward the Franco regime in Spain, and l am particularly gratified that l have heard this attitude once more expressed by the Government of the United States of America. l am sure that the people of Spain will draw the proper conclusions from this unanimity and l am sure that they also understand, as was pointed out by the representative of Mexico, that this attitude toward the fascist Government of Franco does not refiect on our attitude tm'V'ards the people of Spain. .On the contrary, we are deeply concerned about the liberty of the Spanish nation and it is our wish that the Spanish nation will be able to join the community of the United Nations as soon as possible. This wish animates the negative attitude we all have toward the fascist regime of Franco. On this matter, we are all quite unanimous. • . There is sorne disagreement, however, as to what consequences, if any, this attitude might have with regard ta the participation of Spain in the International Court of Justice. l have listened .with great interest to the arguments which were put forward against the adoption of my resolution. However, l must confess that these arguments did not convince me on the point whether the adoption of my resolution would be a propel' ~'mcedure for this Council. We fully subscribe to the general principle set down in the resolution we adopted at the beginning of this meeting, and it is exactly because we wanted to underline our subscription to this general principle that this draft resolution is presented as a separate resolution and not as an amendment to the original resolution which has been adopted. . rai et dans nous l'attitude de notre Franco Gouvernement tous Conseil régime de Franco. fait rique suis 1 cette et fait que ment notre avons, liberté que cette nation puisse des Nations inspire tous L'unanimité question conséquences l'Espagne quelles écouté été lution. ments ma bonne pleine et la de nous principe projet non initiale gnaler résolution sus-mentionnée". tention de donner ment, Nous qu'il sous souligner notre la The representative of the Netherlands was good enough ta point out a: technical fiaw in the resolution, llamely, in the resolution submitted, l say, "the above resolution." Originally we had the intention of presenting it as an amendment and that is how this word "above" crept in. Later, however, we thought it would be more praper to present it as a separate resolution, in arder to underline quite clearly and unmistakably our adherence ta the generalprinciple of the resolution adopted. 1, therefore, have changed somewhàt the wording of my .resolution, and Now 1 come to the fundamental point of our discussion. 1 shou.'3 like to state our position in the following form: Vve do not object to the principle of universality of the International Court of Justice. We do not object' either to the principle that everybody, even a criminal, is entitled to full justice before the law. We endorse these principles most wholehearted1y. However, in the question involved there is something more.· According to Article 31 of the Statute of the International Court of Justice, every nation which participates in a case before the Court, has the right to have one judge nominated by it to sit on the Court. Consequently, the problem before us is not whether we allow justice to be administered to a criminal. We have nothing against the Franco regime appe<h"'Ïng before a court of justice, but if it is to appear before a court of justice, it is to appear before a court of justice not in the capacity of a court judge but in the capacity of an accused, in the same capacity in which the defendants at Nürnberg appeared before a court of justice, in the same capacity in which lesser participants in the Iascist Axis appear before a court.of justice. We do consider the Franco regime as a participant in the fascist Axis which waged war against the United Nations; and we do bclieve that this regime has a place before a court of justice, but before a court; of justice of the type as 1 have described. On several occasions the representative of Poland has had the oppoitunity to point out that the United Nations, as an organization, emerged from a specific historical circumstance, namely, it emerged from a war against fascism. We do believe that this war against fascism is not finished so long as regimes which have been installed in power with the aid of the fascist Axis still remain. We do not propose to use military measures against these regimes. However, we do propose that these regimes· be recognized for what they are, for the last remnants of fascism; which has no place among the United Nations except before a court of justice in the same way as the defendants at Nümberg. l spoke of the trial at Nürnberg. This trial terminated with a verdict. l understand this verdict will be· carried out soon, in less than one hour, and l do not think it would be fitting at this moment to give comfort to the remnants of the Axi'l, to those who showed their adherence to .the Axis and who now speculate on cl'tusing a split alllong theUnitëd Nations, and who expect and hope to have a conflict in this way. l, .therefore, think that, particularly in this hour, . we should reaffirm our position on fascism and l, therefore, once more, would like to appeal to the members of this Council ta support the resolution which 1 have presented. Mi". GROMYKO (UIrion of Soviet Socialist Republics) (translated trom Russian): We have heard the statements of those members of the Security Council who support the Polish resolution and those who oppose its adoption. If we consider the essential meaning of the arguments of those Council members who oppose the adoption of the Polish resolution, it will be found 'to be as follows: they affirm that the adoption of the Polish resolution would be contrary ta the principle of Iaw. The representative of the Netherlands expressed this idea most clearly. It appears to me that in this case when we are, in g~n.eral, discussing this or that question connected with the existence of fascism and fascist regimes, such statements are merely playing with words. It seems to me that it is time that aIl members of the Secùrity Council, as weIl as statesmen in general, understood that, in the light of the tragic events of the past years, law and fascism are incompatible conçeptions.Lawlessness is the law of fascism. The peoples of European countries, for instance, know this well. Many European countries are now in ruins after the defeat of Germany. This is why the fascist leaders were tried. l have touched upon these arguments merely because they appear to be the basis of the speeches of those Council members who oppose the adoption of the Polish resolution. No other arguments on substa...ïce have been put forward. So far as the speech of the representative of Australia is concerned, l must say, that if 1 wert" not present at the meeting of the Security Coun· 'Cil, 1 should come to the conclusion that the rep· ;resentative of Australia was jesting. He began rus statement by saying that all the members of the Security Council would appreciate the efforts made by the representative of Australia oduring the discussion of the Spanish question in the Security Couhcil. Perhaps there are other members of the Security Council who will appreciate the representative of Australia's efforts during the discussion of the Spanish problem, but l do not wish to be one of those members of the Security Council ready to appreciate these efforts and ta share his opinions. 1 hold a spe- ~ial opinion of the raIe played in the discussion 'Of the Spanish question particularly by the delegation of Australia. There is no need to say, as 1 stated at the beghming of the discussion of this question, that 1 regard the Polish resolution as being correct and weIl founded and that l consider that the adoption of this resolution would render a certain assistance to the Spanish people and the Spanish democratic forces which are only await- Mr. HASLUCK (Australia): 1 regret rather that we have gone up yet another sidetrack and passed from .consideration of conditions for participation in the Court to consideration of the conduct of the Franco regime, and now to consideration of the conduct of. the Australian Goveroment. 1 hope there is nothing sinister in this grouping. 1 cm speak ""ith perhaps a little liberty on this subj~ct, because on the occasion to which you refer 1 was not the Australian representative. But 1 was present at the meetings and 1 had the privilege of looking on. 1 feel quite sure that the Foreign Minister of Australia would be content to stand bythe records regarding the hand- Jing of the Spanish situation before this Council, and although 1 am sure that he will regret that he does not have your personal esteem, he will flnd satisfaction in the fact that the records will show that, when it came to a final vote, the proposal put forward by Australia had the support of the majority of this Council and was only defeated by the exercise af the "veto." The·PRESIDENT: If no members of the Council ask permission to speak on this question, 1 shall put the text of the resolution submitted by the Polish reprèsentative to a vote. 1 shall read the text of the resolution as amended by the Polish representative: "In accordance with the spirit of the resolutions adopted by the General Assembly in London on 9 and 10 February 1946, the resolution adopted hy the Security Council on 15 October does not apply to States whose regimes have been ir:stalled with the help of armed forces of countries which have fought against the United Nations, so long as these regimes are in power." Yotes for: France, Mexico, Poland, Union of Soviet Socialist·Republics. ,Yotes . dgainst:. Australia"Brazil, China, Egypt; Netherlands, United Kingdom, United States. of America.