Foreign Relations of the United States, 1946, General; the United Nations, Volume I

501.BB/7–846

Background Memorandum Prepared in the Division of International Organization Affairs¹

undated

confidential in part

Agenda Item on Codification of International Law: Background

Under Article 13 of the Charter, the General Assembly has a positive obligation to initiate studies and make recommendations to encourage the progressive development of international law and its codification. This provision was included in the Charter largely because of insistence at the United Nations Conference at San Francisco that more emphasis should be placed on law as the basis of the Organization than had been evident in the Dumbarton Oaks Proposals. The inclusion of the proposed item on the agenda would therefore make clear that the United Nations desires to promote international justice through the encouragement of the rule of law.

The length of time which the League of Nations’ efforts at codification consumed shows that the process of codifying international law is slow and difficult. An early and carefully thought-out approach to the problem by the United Nations, therefore, seems desirable.

Confidential. From the point of view of the United States, the inclusion of the item would have certain political advantages since the other American republics are keenly interested in the codification of international law. The United States has gone along in the past with the other American republics in supporting the movement for codification by inter-American agencies, as manifested by pertinent resolutions of the Seventh and Eighth International Conferences of American States,² the Third Meeting of Foreign Ministers of 1942,³ and the Inter-American Conference on Problems of War and Peace.⁴ There is, however, considerable feeling in the Department that regional codification of international law is undesirable since public international law is a legal system for the entire community of states and since such regional codification might conflict with codification on a universal basis under the auspices of the United Nations. Inter-American codification might also operate against the interests of the United States since it might raise the question of commitment to some Latin American legal concepts, such as the Calvo clause, which are unacceptable to this government.⁵ It so happens that the inter-American machinery for codification is at present practically at a standstill, pending possible revision of the procedures at the Ninth International Conference of American States, which is scheduled to meet at Bogotá some time next year. It is, therefore, highly desirable from the point of view of this government that the United Nations plan should be evolved, at least in its broad outlines, before inter-American procedures are revised or new machinery developed independently of the United Nations. End Confidential.

We should like to see emphasized that the Charter provides for the progressive development of international law as well as its codification. We, therefore, do not propose that the United Nations should merely continue the efforts of the League of Nations to bring about the progressive codification of international law. We believe that the General Assembly should not simply encourage the systematization of existing law but should, by every possible means, foster its progressive development.

The Charter itself creates new legal relationships and poses new problems. In the ordinary course of events, the United Nations will contribute greatly to the development of international law as the various organs interpret the Charter and carry on their functions under it. The Economic and Social Council, in particular, may make important contributions since much development of international law will undoubtedly take place in economic, social, cultural, health and related fields and in the promotion of human rights. Article 62 of the Charter authorizes the Economic and Social Council to make studies, reports, and recommendations on the subjects falling within its competence, to prepare draft conventions for submission to the General Assembly, and to call international conferences.

The League of Nations encouraged the codification of international law through the work of special preparatory committees working from 1924 to 1930 and by convening a codification conference in 1930. The League’s efforts were crowned with little success, mainly, it seems, because national views as to what the law on the subjects chosen actually was and what it should be were more divergent than had been supposed.

The League also fostered the development of international law through the holding of such conferences as the Financial Conference at Brussels in 1920, which recommended the Economic and Financial Organization of the League, and the Barcelona Conference of 1921 on communications and transit which took important steps in this field.

The variety of League activities in the development of international law, the varying success which attended them, the wealth of knowledge which has grown out of the consideration of many subjects for codification suggest that the first step which might be taken toward the discharge of the General Assembly’s responsibility under Article 13 might be the consideration by the General Assembly’s Legal Committee of the appointment of a special committee concerned primarily with the procedures to be adopted. Since the main task of the special committee would be to make recommendations for a general plan which the United Nations might adopt, it should probably be composed of government representatives, mainly officers trained in international law and having wide experience in that field.

Such a committee might consider and report to the next General Assembly on:

(1) the most practical methods by which the General Assembly may undertake to encourage the progressive development of international law and its codification;

(2) the proper division of labor between the General Assembly and the Economic and Social Council in working toward this objective;

(3) the best method of enlisting the most effective assistance of national or international groups;

(4) the establishment of machinery of the General Assembly to continue work in the field;

(5) the consideration of proposals for special United Nations bodies, such as an international drafting body, which might assist in the attainment of the objective;

(6) the best procedure for deciding what specific subjects should be tackled first taking into account the work done or inspired by the League.

1. Transmitted to the Acting United States Representative (Johnson) under instruction no. 23, July 30, in which Ambassador Johnson was requested to transmit to the Acting Secretary General of the United Nations (Sobolev) a communication along the following lines: “Since Article 13 of the Charter provides that ‘the General Assembly shall initiate and make recommendations for the purpose of … encouraging the progressive development of international law and its codification.’ the Government of the United States suggests that the Secretary-General include in the provisional Agenda for the Second Part of the First Session of the General Assembly an item looking toward the carrying out of this provision of the Charter.” (501.BB/7–846) This background memorandum was forwarded for “the information and informal use” of the Acting United States Representative.
2. Held at Montevideo in 1933 and at Lima in 1938. respectively; see Foreign Relations, 1933, vol. iv, pp. 1 ff., and ibid., 1938, vol. v, pp. 1 ff.
3. Held at Rio de Janeiro; see ibid. 1942, vol. v, pp. 6 ff.
4. Held at Mexico City; see ibid., 1945, vol. ix, pp. 1 ff.

5. The Calvo clause presumes to condemn “intervention (diplomatic as well as armed) as a legitimate method of enforcing any or all private claims of a pecuniary nature, at least such as are based upon contract or are the result of a civil war, insurrection, or mob violence. ‘To admit in such cases the responsibility of governments, i.e., the principle of indemnity, would be to create an exorbitant and fatal privilege essentially favorable to powerful States and injurious to weaker nations, and to establish an unjustifiable inequality between nationals and foreigners.’ 3 Calvo, 1280.” (Amos S. Hershey, The Essentials of International Public Law and Organization, New York, 1935, p. 255 n.).

   “The so-called Calvo Clause takes it name from Carlos Calvo (1824–1906) of the Argentine Republic … The Calvo clause has had an unusual history before claims commissions. In eight cases the validity of the clause, thus barring an international claim, has been upheld; in eleven cases its efficacy to bar the jurisdiction of a claims commission has been denied. …” (Manley O. Hudson, editor, Cases and Other Materials on International Law, St. Paul. 1936, p. 1110 n.).

   See Donald R. Shea, The Calvo Clause A Problem of Inter-American and International Law and Diplomacy (Minneapolis, University of Minnesota Press, 1955); see also J. L. Brierly, The Law of Nations, sixth edition, edited by Sir Humphrey Waldock (New York and Oxford: Oxford University Press, 1963), pp. 276 ff.