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

IO Files: US/A/M (Chr.)/21

Minutes of the Twenty-First Meeting of the United States Delegation, New York, Hotel Pennsylvania, November 15, 1946, 9 a. m.

New York, November 15, 1946, 9 a.m.

secret

[Here follows list of names of persons (22) present.]

Draft Resolution on Codification of International Law

[Here follows statement by Mr. Charles Fahy, Legal Adviser, to the Delegation about the United States-Chinese resolution on the codification of international law.]

Mr. Fahy pointed out that since the initial work on the codification of international law resolution had been completed by the Department, the Nuremberg trials had been completed. These represented a vital development for international law, and the problem had been made more immediate when Mr. Francis Biddle in his letter of resignation as a Judge of the Nuremberg Court had recommended a plan for an international criminal code to include the decisions of the Nuremberg Court. The President in his reply to Judge Biddle said that he hoped that the United Nations would reaffirm the principles of the Nuremberg Charter in the context of a general codification of offenses against the peace and security of mankind. In the light of this exchange of correspondence, it was proposed that there be introduced into the Assembly a resolution as set forth in US/A/C.6/25. Mr. Fahy then read the resolution as follows:

[Here follows text as recommended in the United States Delegation Working Paper of November 14 (US/A/C.6/25), supra.]

Mr. Fahy said that he desired to change the word in paragraph 1 from “approves” to “reaffirms” since nineteen states had adhered to the statement by the United States, the United Kingdom, France, and the U.S.S.R. and thus the matter was already law.

Mr. Fahy continued that the Presidential letter had spoken of “a general codification of offenses against the peace and security of mankind”, whereas Judge Biddle had spoken of “a code of international criminal law”. Therefore, both terms had been used in the resolution in order that the Assembly Committee could consider either alternative.

Mr. Bloom inquired how far back in time it was necessary to go to start a codification of international law. Mr. Fahy replied that some of the law went back for several centuries.

Mr. Dulles said that in general he approved of the resolution and that he thought that Mr. Fahy’s use of the word “reaffirm” was desirable.

Senator Austin suggested that instead of speaking of the “London agreement” that the resolution might better use the phraseology which he had used in his address to the General Assembly, namely; “the law of the charter of the Nuremberg Tribunal”, thus there would be a continuity in terminology throughout the United States declarations on this point.²⁸ This suggestion was unanimously approved by the Delegation.

Mr. Dulles pointed out that the United States was advocating an international criminal code. He pointed out further that in the United States a legislative act which is more recent than an international act supersedes the international act. In that case, if there were a war and the legislature were to pass war legislation, it would prevail over the international criminal code. He inquired if Mr. Fahy knew of any way to make the international code effective in this event. Mr. Fahy replied that he did not know how this could be done except by constitutional revision. Mr. Sandifer remarked that it could be provided in a statute. Mr. Dulles pointed out that there was no way of making such a statute prevail against a subsequent statute. He pointed out that a citizen would not be able to make a defense in a court that he was obeying the international criminal code if there were a subsequent national law. While Mr. Dulles pointed out that the question was not directly relevant to consideration of the Assembly resolution, nevertheless, he thought that the United States might be criticized by certain other States that did not like the form of our law.

Mr. Stevenson agreed with Mr. Dulles but pointed out that even though the International Criminal Code might not be superior to the national law, it was still useful to codify international law. Mr. Dulles agreed. Mr. Sandifer pointed out that the same problem arose with any obligation which it was possible to override. He pointed out that the peculiar problem in this case was that the criminal code was proposed to be applied to the individual rather than to the State.

Mr. Dulles agreed that the individual was in a dilemma whether he owed allegiance to the international criminal code or to the national law. He recalled that he had advocated an international law that operated on individuals as well as on States. However, there was still a need to find out how to make the international law superior to national law especially since the Constitution provided that the laws of Congress were the supreme law of the land. Mr. Fahy said that he did not see how it could be done without a constitutional amendment.

Mr. Fahy said that the problem was also involved in the atomic energy proposals. Mr. Dulles agreed and said that he had spoken with Mr. Baruch about including this problem in his statement and Mr. Baruch had done so.²⁹ Mr. Stevenson remarked that he believed the United Kingdom had the same problem.

Senator Austin polled the Delegation on accepting the recommendation as revised and it was unanimously approved:

[Here follows text of the revised resolution, the same as the draft text in document US/A/C.6/25, except as noted in the discussion of the Delegation.]³⁰

28. This refers to a passage in the speech made by Senator Austin during the general discussion at the opening of the General Assembly; see GA(I/2), Plenary, pp. 893 ff., specifically p. 905.
29. Bernard M. Baruch, United States Representative on the United Nations Atomic Energy Commission; for documentation regarding the atomic energy question, see pp. 712 ff.
30. The legislative history of the proposed United States resolution is documented in the official records of the United Nations as follows: Text of the proposed resolution, GA(I/2), Sixth Committee, p. 237, annex 13b; referral of the item by the Committee to Sub-Committee 1 on November 20, ibid., pp. 100 and 101 (Proceedings of the Committee); report of Sub-Committee 1 to the Sixth Committee, ibid., p. 240, annex 13e; discussion by the Sixth Committee on December 6 and 9, ibid., pp. 169 ff.; the Report of the Sixth Committee to the General Assembly, GA(I/2), Plenary, p. 1528, annex 66; adoption by the General Assembly of the Committee’s Report and passage of the recommended resolution, ibid., p. 1144; text of the resolution as adopted (Resolution 95 (I)), GA(I/2), Resolutions, p. 188.