The Department of State to the British Embassy
The future of Trieste has been the subject of some correspondence and discussion between the Government of the United Kingdom and [Page 1330] the Government of the United States. In the most recent step the British Government informally raised certain questions regarding the action which the two Governments might take to facilitate agreement on Trieste by the Governments of Yugoslavia and Italy. In commenting upon the future action which might be taken to this end, the Government of the United States also wishes to present its views upon the legal aspects of the implementation of an Italo-Yugoslav agreement and the steps which might be taken for the implementation in the United Nations of such an agreement. The views contained in the latter two sections of this Aide-Mémoire are also being transmitted to the Government of France.
United States–United Kingdom Action
Without discussing in detail the points raised by the Foreign Office, the Department agrees that
- it is not in the interest of the United States and the United Kingdom, nor will it improve the chances of a successful direct negotiation between the Yugoslavs and the Italians, if the United States and United Kingdom are pushed into the forefront of the battle of grievances between the Yugoslavs and the Italians;
- the Ambassadors of the United States and the United Kingdom in Belgrade should not, therefore, be instructed, under present circumstances, to go further than they have already gone in supporting Italian complaints;
- the United States and United Kingdom should continue to take advantage of appropriate occasions to advise both sides to refrain from making provocative speeches or stimulating inflammatory articles;
- there is no need to be unduly pessimistic, because both sides have indicated a desire to reach a settlement and both should know perfectly well what the ultimate settlement must be, viz., an ethnic line in both zones, coupled with local economic arrangements.
The success of any approach to the Italian and Yugoslav Governments depends primarily on its timing, and it would appear that the atmosphere will be more propitious for settlement after a period of calm has prevailed. The Department is of the opinion that under present circumstances the United States and United Kingdom should not continue to urge both sides to proceed with direct negotiations, particularly as it is apparent that the Tito Regime has no intention at this time of abandoning its so-called “neutral” position or of affording any ground for giving credence to the Cominform allegation that Yugoslavia is aligned with the Western nations against the Soviet Union and its Satellites. At such time as it appears appropriate to press for settlement, the Department suggests that both the Italian and Yugoslav Governments be approached by the representatives of the United States and the United Kingdom.[Page 1331]
Legal Aspects of Implementing an Agreement on Trieste
If the Italian and Yugoslav Governments reach an agreement upon the division of the Free Territory of Trieste, which is acceptable to the United Kingdom, France and the United States, but not to the Soviet Union, its implementation will require the solution of certain legal problems.
It is a general principle of international law that amendment or supersession of an earlier agreement by a later one requires consent therein by all states that are parties to the original agreement. Although support can be found in international practice for the modification by contiguous states of their common boundary without consultation with other signatories to the agreement by which the boundary was established, it would be very difficult to support, by reference to international law or practice, the disposition by contiguous states of a “free state” without the consent by the other signatories to the international agreement by which the free state was established. In view of the clear language of Article 21 of the Italian Treaty, i.e., “There is hereby constituted the Free Territory of Trieste …”, it is difficult to see how we can avoid proceeding on the assumption that a free state has been established, even though it has as yet no Constitution or government.
This is a particularly relevant objection in a case, as here, where it has been agreed that the free state will include an internationally-supervised free port which is expressly intended for the use of other signatories. An added hurdle in the present case would be the expectation of the parties, expressed in the Permanent Statute of the Free Territory, that the free state will be “demilitarised and declared neutral”. (Annex VI to the Italian Treaty, Article 3, paragraph 1)
The doctrine of rebus sic stantibus, which has never been successfully invoked in any international forum, is probably not directly relevant to the proposed plan of action. As interpreted by most commentators on international law, the doctrine merely states that when an essential change has occurred in the state of facts which formed the basis for an international agreement a party to that agreement may ask a competent international tribunal or authority to relieve it of its obligations under the terms of the original agreement. The facts in the present case do not seem to meet this test. The doctrine of rebus sic stantibus suggests the possibility, however, that States which wish to settle problems of immediate common interest in a manner inconsistent with international agreement entered into with other States, whose acceptance of the proposed solution cannot be secured, can minimize general criticism of their action by submitting the proposed solution to an international forum for approval.[Page 1332]
Approval by the inhabitants of Trieste seems desirable. We are not certain it would be necessary in the event of concurrence by all the signatories to the Italian Treaty. It would undoubtedly be helpful, however, in providing support for any action taken in absence of such concurrence.
It seems sound to begin with a proposed treaty open for adherence by all of the parties to the Italian Treaty, whether or not the new treaty is designated as an “amendment” of that Treaty. In the event of opposition by the Soviet Union, and its satellites, Poland and Czechoslovakia, it would be advisable before proceeding in the face of opposition to secure the general approval of an international forum. The General Assembly of the United Nations would probably provide the best international forum in which the problem of Trieste could be discussed and general support for the proposed solution secured. The fact that Italy is not a member of the United Nations would not be an obstacle. Unanimous approval would not be required.
Implementation in the United Nations of an Agreement on Trieste
If the Government of the United Kingdom and the Government of France, to which the United States Government is also presenting its views, agree with the conclusion expressed above that the legal aspects of the implementation of an Italo-Yugoslav agreement on Trieste can best be settled by proceeding through the United Nations, then the United States Government would propose the following steps as a basis for discussion with a view to arriving at an agreed procedure:
- Upon conclusion of a satisfactory Italian-Yugoslav agreement, Italy and Yugoslavia together with the United States, British and French Governments (as co-sponsors of the March 20 Declaration) would propose to all the other signatories of the Italian Peace Treaty the conclusion of a treaty which would incorporate the agreement reached by the Italians and Yugoslavs.
- The same five powers would advise formally the Security Council of the agreement in a well reasoned communication pointing out the unworkability of the Peace Treaty arrangements as well as the advantage of the Italian-Yugoslav agreement; the communication would also state that all signatories to the Italian Peace Treaty are being approached with a view to obtaining their agreement to the new Treaty.
- It is expected that all the signatories with the exception of the Soviet Union, Poland and Czechoslovakia would indicate agreement to join in the new treaty. After rejection by the Soviet Union another diplomatic approach should be made by the five powers (joined possibly by other signatories to the Peace Treaty) advising the Soviet Union that all the other signatories had indicated their willingness to accept the Italian-Yugoslav agreement and proposing that the Soviet Union reconsider its position in the light of this new factor. [Page 1333] Copies of the diplomatic exchanges would be sent to the Security Council.
- The Soviet Union would presumably reject or ignore this second approach. Italy, Yugoslavia, the United States, the United Kingdom and France should then bring the matter before the General Assembly of the United Nations under Article 14 of the Charter. This Article provides that “Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations …”. The five states would claim that a recommendation for a peaceful adjustment is required with respect to a situation impairing both the general welfare and friendly relations among nations and arising out of the unworkability of the Italian Peace Treaty provisions regarding Trieste. The legislative history of Article 14 indicates that this Article was intended among other things to facilitate peaceful change of the status quo based on international treaties.
In their communication to the General Assembly the five powers would propose that the General Assembly recommend to all signatories of the Italian Peace Treaty that they accept the Italian-Yugoslav agreement. It would take considerable effort and diplomatic preparation to make out a convincing case in the General Assembly based on the unworkability of the present Peace Treaty.
The General Assembly would presumably make recommendations approving the Italian-Yugoslav agreement.
A recommendation by the General Assembly would not constitute a valid title for changing the Italian Peace Treaty arrangements without Soviet agreement. While the General Assembly has no power at this stage of its development to change treaties, a recommendation of such changes by the Assembly should provide a large measure of protection against charges of violation of international obligations. Moreover, such recommendation should have the additional effect of making the new Trieste arrangement politically more acceptable. To increase further the political acceptability of this arrangement the United Kingdom, the United States and Yugoslavia as administering authorities of the Free Territory of Trieste might conduct a plebiscite within the Territory possibly with United Nations observers present in order to determine whether the majority of the population favors the Italo-Yugoslav agreement.
The question whether or not the five powers should bring the matter before the Security Council prior to raising it in the Assembly should be determined on the basis of thorough consultations on the widest possible basis.
Under Article 12 of the Charter the General Assembly cannot make recommendations on a dispute or situation while the Security Council is exercising its functions in respect of any such dispute or situation. The only item relating to Trieste presently on the agenda of the Security [Page 1334] Council reads: Appointment of a Governor for the Free Territory of Trieste (S/1594, 11 July 1950). The question which the five powers should bring before the General Assembly would be a different one. Therefore Article 12 would not necessarily prevent the General Assembly from making recommendations on the Italo-Yugoslav agreement even if the present item remains on the agenda.
The Security Council was appropriately concerned with the appointment of the Governor and with the exercise of its responsibilities with respect to the Free Territory. The Peace Treaty conferred upon the Security Council authority in this matter. There might be some question whether the Security Council should consider a proposal leading to a modification of the Peace Treaty which would liquidate the Security Council authority. This is a matter involving primarily a change in the law by the parties concerned. The General Assembly, the United Nations organ with quasi-legislative functions, might be a more useful forum in this matter. The Security Council would be kept informed of the efforts to obtain agreement on the new arrangement through transmittal to it of the diplomatic exchanges under 2 and 3 above. These exchanges will make it obvious that the only practical result of a reference to the Security Council of the proposed new arrangement would be another veto.
On the other hand, in its resolution of January 10, 1947 the Security Council accepted responsibility with respect to the Free Territory of Trieste. This resolution is still on the books. It could therefore be argued that before resorting to another organ of the United Nations it is logical and appropriate to raise the matter in the Security Council and that the Security Council cannot be by-passed. Some United Nations members might contend that an agreement or positive action in the Security Council would make the reference to the General Assembly unnecessary. If the matter is raised in the Security Council and the Security Council is prevented from acting by a Soviet veto, the unreasonableness of the Soviet opposition to a generally acceptable solution would be dramatized. In such case we should propose that the Security Council drop from its agenda the item “Appointment of a Governor for the Free Territory of Trieste”. This can be accomplished by a vote of any seven members. The case would then be brought before the General Assembly.
In view of these considerations the United States Government believes that a decision on the reference to the Security Council should remain flexible and subject to the results of broad consultations.
- An identical aide-mémoire, mutatis mutandis, not printed, was delivered to the French Embassy on August 9, 1950 (750G.00/8–950).↩