501.BB/7–849: Airgram

The Secretary of State to the Embassy in the United Kingdom


A–755. Reference Embassy’s telegram No. 2327, June 16, 1949.1

In that telegram the Foreign Office requested our views as to what action the United Nations General Assembly should take next fall on its agenda item concerning human rights in Bulgaria and Hungary.

The following is our preliminary thinking on this question:

In the unlikely event that the satellites appoint their representatives on the Peace Treaties commissions, the General Assembly should postpone consideration of this item pending the outcome of the commissions proceedings. This is fully in accord with the General Assembly resolution passed on this subject last spring.
It is more likely, however, that by the time the General Assembly opens it will be clear that the satellites are unwilling to appoint their representatives for the Treaty commissions. Their refusal will constitute a disregard of the General Assembly recommendation of last spring to cooperate in the settlement under the Peace Treaties, as well as a new violation of the articles of the Peace Treaties regarding the settlement of disputes concerning the interpretation or execution of the Treaties. This is a defiance both to the United Nations and to international law and is of fundamental importance. Since the General Assembly has already determined that Peace Treaty proceedings are the appropriate method in the first place to handle this matter, we believe that the General Assembly action next fall should be directed primarily to this issue which lends itself also to an effective political use.
Prior to the opening of the General Assembly session, when it becomes clearly established that the satellites will not appoint their representatives on the commissions, we might advise the Secretary General of the situation in a formal communication. This would be appropriate since under the Peace Treaties the Secretary General is to appoint the third member of the commission in the absence of agreement between representatives of the parties. We would not request him at this stage to appoint the third members despite the satellites’ refusal to name the second members.
It might become necessary to extend the present agenda item so as to include Rumania, particularly if any General Assembly action on the merits of the case is contemplated. The request for such extension, as a matter of good practice, should be filed with the Secretary General prior to the expiration of the deadline for submission of agenda items on the supplementary list (August 21). Perhaps Australia, as the original proponent of the agenda item and also as a signatory to the Peace Treaties would be interested in filing such request.
In the General Assembly the United States and the British would explain the case against Rumania and should emphasize the defiance of the satellites to the General Assembly resolution recommending cooperation in Treaty proceedings as well as the flagrant violation of the Treaty Articles providing the procedure for the settlement of disputes. We should state our willingness to refer to the International Court of Justice for determination:
the question whether or not Treaty settlement procedures are applicable to our disputes (and whether satellites are under Treaty obligation to appoint their representatives on commissions); or
the disputes on their merits (i.e., whether the satellites violated the human rights clauses of the Treaties).
In the Committee we might propose or support a General Assembly resolution along the following lines:
The General Assembly recommends to the parties that they refer to the International Court of Justice for judicial determination in their discretion, either the question of applicability of Treaty procedures or the entire disputes;

The General Assembly resolves that if within six weeks after the date of the resolution the Court is not seized of either [Page 257] question by agreement of the parties, the Secretary General should pass to the International Court of Justice a request by the General Assembly for advisory opinion on the following questions: are the Treaty procedures for the settlement of disputes applicable; and is the Secretary General entitled under the Peace Treaties to appoint the third member of commissions in absence of appointments of the satellites’ representatives.

(The General Assembly itself would formulate this request for an advisory opinion and attach it perhaps as an appendix to the resolution.)

The General Assembly declares its continuing interest and concern in the grave charges made against the satellites and retains the question on the agenda, for the fifth session so that responsibilities can be fully assessed by appropriate means.

We believe that a judicial determination of the issue of applicability of the procedural articles of the Peace Treaties is important not only as an additional pressure on the satellites but also as a basis for possible condemnation by the General Assembly of the satellite refusal to cooperate in the Treaty proceedings according to their international obligations and the recommendation by the General Assembly. We must, of course, anticipate that the determination by the Court will not lead to the establishment of commissions under the Treaties. In that event the General Assembly would have to assume that the efforts at a settlement through Treaty procedures had failed and it will have to take further action on the charges against the three satellites.

Since our disputes involve facts of great complexity, in the Department’s view any General Assembly action beyond a recommendation of procedures for settlement would require an examination of facts through a procedure set up by the General Assembly. Perhaps the best method would be for the General Assembly to direct the Secretary General to appoint an impartial jurist of world-wide reputation who would examine the charges made against the three satellites in the General Assembly, receive any further information which might be made available to him by Member governments, make a determination of the issues and report with his conclusions to the parties to the disputes and to the following session of the General Assembly. This method would most closely approximate the proceedings in the Peace Treaties commissions in which the decisive vote would be cast by the third member. This member under the Peace Treaties would be appointed by the Secretary General in absence of an agreement by the representatives of the parties. This method of fact-finding by the General Assembly would emphasize the Peace Treaties aspect even in the action by the General Assembly.

As another alternative the General Assembly could set up a Special Committee along the lines of the Australian-Cuban proposal of last spring to sit in New York, look into the charges against the three countries and report to the General Assembly. Alternatively the General Assembly could request the Interim Committee to undertake the examination of the facts perhaps through a subcommittee sitting in New York, similar to the Security Council subcommittee in the Spanish case which collected information on Spain despite the absence of Spain. The General Assembly would express its opinion on the [Page 258] merits of the charges on the basis of the preparatory work and conclusions submitted either by the appointee of the Secretary General, a Special Committee or the Interim Committee.


There is some question in our mind as to whether the above-proposed resolution recommending to the parties to go to the International Court of Justice and instructing the Secretary General to pass to the Court a General Assembly request for an advisory opinion in case they fail to do so would be a sufficient action for the next session of the General Assembly. It would perhaps be possible to add in the resolution a direction to the Secretary General to appoint an impartial jurist for fact-finding purposes in case the action by the Court should not lead to the resumption of the treaty proceedings within a reasonable time after the Court has rendered its opinion. Such resolution, however, would be a very complex document in that it would have to provide for a number of alternatives.

The above suggested resolution limited to the recommendation for judicial determination might not be enough for such states as Australia, New Zealand, Chile, Cuba and Colombia who were in favor of a more radical Assembly action already last spring. On the other hand, we recall twenty abstentions on the vote to place this item on the agenda, the strong reluctance on the part of the Scandinavian countries, most Western Europeans, Arabs, and a number of Latin Americans to support General Assembly action beyond discussion and recommendation of procedural steps as well as the negative attitude of others toward any General Assembly action in this matter (India, Argentina, and other Latin American members). We ourselves are somewhat concerned that the General Assembly decision to inquire into the substance of the charges of human rights violations even though Treaty obligations are involved in this particular case might constitute a precedent starting perhaps a long line of cases of charges and counter-charges. As the United States Delegate stated last spring, we believe that the General Assembly’s role in this field at this stage of United Nations development should be primarily to promote agreement on common standards and assist in composing differences rather than acting as a court of review on individual cases although the General Assembly in our view is not barred in appropriate circumstances from expressing opinion or making recommendations on this type of case.

We would not favor a reference to the International Court of Justice of the question of General Assembly jurisdiction in this matter under Article 2(7) of the Charter. We believe that the General Assembly has jurisdiction to take the steps suggested above (cf. Fourth Advisory Opinion of Permanent Court of Justice on Moroccan and Tunisian nationality decrees). However, the Court should not be asked this jurisdictional question at this critical time in the development of international law in the human rights field when the Covenant on Human Rights and the problem of duties of a state towards its own citizens in the International Law Commission are in the process of final formulation.

Please discuss the above views with the Foreign Office, emphasizing their tentative character, and report their reaction at your earliest convenience.

  1. Not printed.