840.811/8–448: Telegram
The Secretary of State to the Embassy in Yugoslavia
niact
459. Dudel 24; Brit Emb has asked urgent US comments on proposal of Peake, in which Fonoff concurs, that Brit Del introduce resolution conference as follows:
“The conference recommends that in order to obtain a decision on the present validity of the convention instituting the definitive Statute of the Danube signed at Paris on July 23rd 1921, the Governments of (names to be inserted) should sign an agreement in the following terms.
- 1.
-
The Governments of (names to be inserted) having regard to Articles 36 (1) and 40 of the Statute of the Court and Articles 32 and 72 of the Rules of Court agree to submit to the International Court of Justice the following question for decision:
What international agreements relating to navigation on the Danube are now in force and which States are parties to those agreements?
- 2.
- The parties request that the above question shall be decided by the Chamber for summary procedure.
- 3.
- The present special agreement shall take effect immediately and may be notified to the Court by any of the signatory governments.”
In putting forth this proposal Fonoff states that it has considered Peake’s suggestion that resolution include alternative that dispute be submitted to arbitration but, while there is no objection to Peake supporting such an arbitration procedure if other delegations prefer, Fonoff believes arbitration would necessarily involve considerable delay and could be attacked by Soviets as stalling tactic. Fonoff recognizes unlikely Soviet delegation accept either court reference or arbitration but feels court summary procedure less subject attack that ground and conceives court proposal as useful in establishing in eyes of world correctness of position Peake has already taken concerning Brit rights 1921 convention.
Having in mind expressed purpose conference to establish new convention to provide for free navigation of Danube in future Dept doubts desirability overemphasizing British-French line of insistence past rights. In our opinion, which we have previously indicated, western delegation should concentrate efforts toward future free navigability Danube and draw conference issues on basic conflicts between Soviet and western intentions that regard. (Dudel 21, Aug 4) Such concentration in accordance general western objectives and we think more likely receive public endorsement than protests against abrogation 1921 rights, exercise of which appears unrealistic in this case, regardless of legal validity.
However, as Brit apparently feel strongly in matter Dept not disposed endeavor dissuade them from proposed course and prepared support resolution for reference to court if introduced. In that event you should take line that US welcomes full use of machinery provided by UN for settlement of disputes and concurs in proposal that conference by adopting Brit resolution recommend submission of this dispute to court by disputing governments, USSR, UK and France. In so doing, you should make clear that US Del in supporting recommendation does not suggest that US join in submitting case to court inasmuch as US not directly party to dispute or to 1921 convention, but that, with particular reference to US status as an occupying power in Germany and Austria, US will reserve right to avail itself, to the extent such action may become advisable, of appropriate provisions of statute of court in regard to participation of interested states or otherwise.
For your background, Dept considered desirability, on basis common western front, proposing US become participant in dispute with UK and France. However, we have concluded that such course would be confusing in light general understanding US not party ‘21 convention and our feeling that, in unlikely event subsequent desirability US representation before court as occupying power, our rights adequately protected by Articles 62 and/or 63 court statute. Also feel those [Page 662] Articles similarly safeguard interests other 1921 signatories, Belgium, Italy and Greece.
Substance this tel being furnished Brit Emb response Emb inquiry.
Sent Belgrade as 459 rptd London as 3101 re London’s 3516, Aug 4 and Paris as 2999.