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LAW LIBRARY — U. N.S.W.

1UNIV RSITY OF N.S.W.

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LAW LIBRARY

AUSTRALIANS T" INTERNATIONALLAW NEWS

INTERNATIONAL LAW ASSOCIATION (AUSTRALIAN BRANCH)

COMMENTS

MARCH 1985

Intervention in International Law - Grenada and Afghanistan - KWAW NYAMEKEH-BLAYUNESCO Regional Meeting on Teaching and Reasearch in International Law - PROFESSOR JAMES CRAWFORDMercenarism - The Australian Experience

- BEATRICE SCHEEPERSCollective Expulsion of Foreign Nationals

- Nil LANTE WALLACE-BRUCEUS and World Economy WILLIAM D. EBERLE

RICHARD N. GARDNER ANN CRITTENDEN

AFRICA Ethiopian Seizure of Australian Aid - Maghreb Treaties - British Consulate, Durban

ANTARCTICA Malaysian Policy

ASIA

EUROPE

Hong Kong - The Dalai Lama - Indo China - Laos- Thai Dispute - East TimorThe Aegean-Gibraltar-Nordic Meeting - The New Ireland Forum - Greenland and the EC - North Sea Pollution

LATIN AMERICAContadora Process - President Alfonsin at the UN Falkland/Malvinas - Beagle Channel

MIDDLE EAST

PACIFIC

Mining of the Suez - Taba - Israel and The Lebanon - Jordan/PLOTorres Strait Treaty - New Caledonia - ANZUS - NZ Policy on Nuclear Ships

COMMONWEALTH - DISARMAMENTINTERNATIONAL ECONOMIC LAW

CASENOTES - LATE ITEMS

PUBLISHED BY THE NEW SOUTH WALES INSTITUTE OF TECHNOLOGY SCHOOL OF LAW FOR THE INTERNATIONAL LAW ASSOCIATION (AUSTRALIAN BRANCH)

Registered by Australia Post Publication No NBG 6424

AUSTRALIAN INTERNATIONAL LAW NEWS (ISSN 0811 9260 NATIONAL LIBRARY OF AUSTRALIA)

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 1

EDITORIAL

In our first year of production, 1984, we published issues in January, May and September, the latter being a double issue.The reaction, both at home and overseas, has been most encouraging. Unfortunately, in summer of 1984-85 production was delayed because of the move of the New South Wales Institute of Technology School of Law to new and more suitable premises on the corner of Quay Street and Ultimo Road, Haymarket, Sydney. Accordingly we have decided to begin 1985 with a delayed double issue which brings together some particularly interesting comments from our contributors.Our future plans are to adopt as far as possible, a pattern of smaller, but more frequent issues. Each year we hope to publish the equivalent of four such issues. Because of the amount of material we are including in this issue we are standing over our regular Journal Review and Australian Practice t.o our next issue. In relation to Australian Practice, and as a general policy, we do not believe it appropriate to publish material which is otherwise easily accessible to our readers. Hence we will not normally publish material on Australian Practice otherwise available in the Australian Foreign Affairs Record. We shall however, publish the Contents pages of the Record.The editors have pleasure in announcing the appointment of Wm.W. Gaunt & Sons, Inc., as agents for all subscriptions outside of Australia and New Zealand.The editors wish to thank Mitchell College of Advanced Education, Bathurst, New South Wales, for agreeing to print the News.

AUSTRALIAN INTERNATIONAL LAW NEWSAustralian International Law News is published by the New South Wales Institute of Technology School of Law for the International Law Association (Australian branch).Patron:President: 'Secretary:Treasurer:Vice Presidents:

Executive Vice President: Editors:

Sir Percy SpenderThe Hon. Mr Justice R.J.N. PurvisThe Hon. Mr Justice P.E. NyghMr C.R. CraigieSir Gordon Wallace Professor Julius Stone QCProfessor D.H.N. JohnsonProfessor James Crawford David Flint

Address: NSWIT Law School, PO Box 123 Broadway 2007, SydneyAustralia

Telex: AA75004 Telephone: (02) 20930Subscription enquiries (outside Australia & New•Zealand):

Wm. W. Gaunt & Sons, Inc.,3011 Gulf Drive, Holmes Beach, Florida 33510-2199U.S.A.


CONTENTS MARCH 1985

EDITORIAL 1 LETTER TO THE EDITOR 5

COMMENTSIntervention in International Law - Grenada and Afghanistan Compared and Contrasted

by Kwaw Nyamekeh Blay 6UNESCO Regional Consultation Meeting on Teaching and Research in International Law

by Professor James Crawford 29Mercenarism - The Australian Connection

by Beatrice Scheepers 64

The Collective Expulsion of Foreign Nationalsby Nii Lante Wallace-Bruce 70

The US and The World Economy by William D. EberleRichard N. Gardnerand Ann Crittenden 88

AFRICAAustralia-Ethiopia - Seizure of Aid 116The Maghreb

Algeria-Tunisia - Treaties of Friendship etc. 121 Algeria-Mauretania - Protocol of Adhesion 125Libya-Morocco - Treaty of Union 129

United Kingdom - South Africa - British Consulate, 132 Durban

ANTARCTICAMalaysian Policy 139

ASIAHong Kong - Sino-British Joint Declaration 148China - The Dalai Lama 190Indochina - Communique of Indochinese Foreign

Ministers 191Vietnam and ASEAN - Vietnam and Indochina 196Laos and Thailand - The Villages of Bane Mai,

Bane Kang and Bane Savang 205Kampuchea - Communique of Meeting of Council of

Ministers, 3 February 1985 under chairmanship of Prince Norodom Sihanouk 216

East Timor 219


EUROPEThe Aegean - Closing of Air Corridor - Airspace 223

Demilitarisation of the Eastern AegeanIslands

* Spain - UK - Gibraltar 231Nordic Foreign Ministers Meeting 234New Ireland Forum 239European Communities and Greenland 247North Sea - Agreement on Pollution 253

LATIN AMERICACentral America - The Contadora Process 260Argentina - President Raul Alfonsin addresses the 289

UN General AssemblyFalkland/Malvinas Islands 294

-Letter from the British Prime Minister on the General Belgrano-Report from the Foreign Affairs Committee

Chile - Argentina - Treaty of Peace and Friendship 305THE MIDDLE EAST

Egypt - Mining of the Suez Canal 309Egypt - Israel - The Taba Dispute 311Israel and The Lebanon - Israeli Withdrawal 314Jordan - PLO - Agreement 319

THE PACIFICAustralia - Papua New Guinea - Torres Strait Treaty 321

RatificationNew Caledonia 322South Pacific Forum Communique - ANZUS Communique 354New Zealand - Policy on Nuclear Powered and 360

Armed ShipsTHE COMMONWEALTH

Port Moresby Communique 366DISARMAMENT

Delhi Declaration 387 ;

INTERNATIONAL PROGRESS ORGANISATION"Brussels Tribunal" on US Foreign Policy 370

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS

INTERNATIONAL ECONOMIC LAWAustralia - 1983 Proposed Code on Protectionism 372Singapore - MSA and Jardine Fleming (Singapore) P/L 384Asian-African Report on Investments 387Australia - Compensation on Expropriation 412European Communities & ACP Countries - Third Lome 415

. Convention •Group of G5 Communique 432UN Transborder Data Flows 433Canada - Investment Canada Bill 436Pakistan - Elimination of Interest 443US - Unfair Foreign Trade Practices 444

UNESCOThe Netherlands 455Nordic Delegations 456UK 458Singapore 459Australia's Regional Relationship 461General Conference 1983 - Report of Australian 463

DelegationCASENOTES :

ICJ - Canada v. U_S - Gulf of Maine - Judgement on 468the merits

ICJ - Nicaragua v. US - Judgement on Jurisdiction 477and Admissibility

ICJ - Nicaragua v. US - US Statement on Withdrawal 494 from Proceedings

ICJ - Libya v. Malta - Continental Shelf - Resumption 497 of Oral Proceedings

ICJ - New Members of the Court 497ICJ - Election of President and Vice President 502US Court of International Trade - Australia Meat 507

and Livestock Corporation v. Block Family Court of Australia - De Andrade v. De Andrade 510 Supreme Court of WA - Kubacz v. Shah 512Federal Court of Australia - Mayer v. Minister for 514

Immigration and Ethnic Affairs High Court of Australia - Clunies Ross v. Commonwealth

of Australia 516LATE ITEMS

- Multilateral Pacific Fisheries Talks 520- Extraterritoriality and US Anti-Trust Law 521- The Ponting Affair 524- Nkomati Accord 527- ICJ - Burkino Faso v. Mali 533- French Territories of the Pacific . 534- Taiwan - US : The Henry Liu Murder 545- Hong Kong - Banking Supervision 556- Foreign State Immunity : The Australian Law Reform 570

Commission's Recommendations


LETTER TO THE EDITORS

Dear Sirs,

I congratulate you on a stimulating and well-presented newsletter which is indeed filling a serious gap in the discussion and recording of the views of Australian international lawyers as events happen.

I think it important, however, that we should not become, or seem to become, provincial in those views. For this reason I think it unfortunate that the review of two books on interim protection should state that

"From the publication in 1932 of Edward Dumbauld's authoritative work Interim Measures of Protection in International Controversies until 1981, there was no book published on this important topic."

There was of course the book by Karin Oellers-Frahm,Die Einstweilige Anordnung in der intemationalen Gerichtsbarkeit 1975 which was reviewed by me in 1979 British Yearbook of International Law at 248-249. Oellers-Frahm had an intelligent discussion on the vexed question of jurisdiction to grant interim protection. Her discussion on this issue (subsequently updated by periodical article) is a useful counterpoint to M. de Lacharriere.

While one cannot expect international lawyers to be conversant with all the major European languages, it would be evidence of interest in the works of non-English speakers if their works were at least reviewed and kncwn in English language publications. Dutch, Scandinavian and German scholars already publish widely in English. I think it would be a pity if Australian scholars contributed to the view that unless they do so, their works will pass unnoticed.

Yours sincerely,

(Dr) Lyndel V. Prott Reader in International Law

and Jurisprudence


INTERVENTION IN INTERNATIONAL LAW

GRENADA AND AFGHANISTAN COMPARED

AND CONTRASTED*

by

KWAW NYAMEKEH-BLAY**

'"What's the difference between Afghanistan and Grenada?" a concerned American Democratic Congressman asked one of his party's leaders. "Afghanistan is larger" the leader quipped cynically, "and Grenada is in our sphere of influence"'

(Time Magazine Nov. 7th 1983 Co. 1, 41)

1. INTRODUCTION

In December 1979, Soviet troops crossed the Soviet-Afghan border and invaded Afghanistan, marking the beginning of active Soviet military intervention in the territory.1 Roughly, three years later, United States marines also landed in Grenada, and after a swift military operation invaded the territory.2 The actions of both super powers have attracted considerable international condemnation.3 In the twentieth century, intervention is not a new phenomenon.In fact, super-power intervention has become common place since the post WWII period.4 As a rule, the intervenors have usually engaged in their acts with impunity as a result of the passiveness of the international community. In a large measure, the absence of any serious international retributions against the intervenors must have contributed to the decisions to invade Afghanistan and Grenada. But ironically it is the general passiveness in respect of pre- Afghanistan and Grenada cases that makes the general international outcry against the interventions in the two territories significant. Given the intense negative international reactions, both intervening super-powers have been quick to attempt political and legal justifications of their actions and to point out the illegality in each others conduct within the framework of existing international law.

The general posture of each super-power finds support among academics.There is a consensus among Western authorities that the Soviet action in Afghanistan was an outright aggression and an illegitimate act of intervention.5 On the other hand opinions differ on the question of Grenada with some willing to extend it a fair measure of legitimacy.6 The question is, when stripped of all ideological undercurrents, how do the facts of Afghanistan and Grenada compare in relation to the rules of non-intervention and the prohibition of the use of force in international law? Is there indeed a basis for comparison between the two cases or must one agree with President Reagan's statement that the United States' action in Grenada was only a "rescue mission"? 7 In this paper, it is intended to examine the legal dimensions of the Soviet action in Afghanistan and the United States in Grenada to determine whether there is any contrast between the two cases in legal terms or Grenada is simply a repetition of Afghanistan, American style.


2. AFGHANISTAN: THE FACTUAL CONTEXT

Afghanistan is a country of rugged and mountainous terrain wedged between the Soviet Union on the north, Pakistan on the south, Iran on the west and China on the east. Given its rather unique location, the territory’s political history has been characterized by domination and resistance.8 In the nineteenth century, the territory was a source of interest for Russian expansion into Central Asia.9 On the other hand the British also sought to gain control over Afghanistan in order to contain what they saw as the Russian threat to India.10 In the Anglo-Russian rivalry that ensued; the British dislodged Russian influence in the territory only to meet fierce Afghan resistance in what came to be called the Afghan wars. After the last of such wars in 1919,1 Afghanistan ermerged as a full sovereign state under the Emir Amanullah Khan. 12

Early Soviet nfluence

In his quest for allies, Amanullah turned to Britain's old rival - Russia.He immediately recongized the new Bolshevik regime in Moscow. This was to pave the way for closer Afghan-Soviet relations. In 1921, the two states concluded the first treaty of friendship.13In view of the aethist basis of Soviet socialism and the nature of Islamic fundamentalism in Afghanistan, Soviet-Afghan relations seemed rather incongruous at the time. It was nevertheless held in place as a matter of strategic pragmatism and the Bolshevik's view that Amanullah was a "revolutionary" engaged in an anti-imperialist struggle.14

Inside Afghanistan however Amanullah lost popular support and was subsequently removed from office in 1929.15Afghan monarchy was nevertheless retained; Soviet Afghan relations remained cordial and was enhanced with several treaty arrangements most on economic aid to Afghanistan after WWII.Soviet approaches to Afghanistan in the years after WWII were greatly facilitated by the then Afghan strongman Mohammed Daoud, cousin of the monarch and Prime Minister. However in 1963 Soviet-Afghan relations suffered a set-back when Daoud was removed from office. A decade later, with the help of Soviet trained leftists, Daoud was returned to office in a miltary coup detat that abolished the monarchy and proclaimed Afghanistan a republic with Daoud president}6 Soviet influence in Afghanistan then entered a new and more sophisticated stage. Two leftist political parties, the Khalq (ie. the masses) and Parchem (the banner) were formed. The rhetoric of the Kabul politicians also took on a socialist flavour. These developments were accompanied by massive Soviet economic aid evidenced by over seventy separate Soviet projects in Afghanistan by 197517 Daoud's Soviet connections however alienated his grass-roots support.

The 1978 Coup

Concerned over Afghan dependence on Soviet aid, Daoud begun to shake off Soviet control. In 1975 he organized a purge of the radical leftists in the Khalq and Parchem. Hen then turned to the oil-rich Arab states for aid.18 These moves won him great support among conservatives, moderates and the influential clergy. However, in the face of a leftist backlash Daoud could not win the support of the military despite a 20% pay increase for the army.In 1978, he prepared to institute a final purge of the remaining leftist radicals. Before he could make any move, he was overthrown in a military coup detat and replaced by Nur Muhammed Taraki.


The coup of 1978 is significant in analysing contemporary events in Afghanistan because it marked a higher stage of leftist resurgence in the territory and the crystalization of Soviet control. In line with socialist ideology, Taraki embarked on land and other reforms?0 His land reforms were welcomed in Kabul and other provincial capitals. But in the rural areas where 90% of the Afghan population resided under feudal conditions, the reforms were fiercely opposed by the pirs (rural landlords) and the mullars (clergymen) who immediately associated the Kabul elite with the communist atheists of Moscow. 21

Taraki's attempts to enforce his reforms in the rural areas only reinforced armed resistance which had been nurturing in the Afghan hills since the days of Daoud in 1973. By the summer of 1978, rural resistance had taken on insurgency proportions in Nuristan Province where poorly armed tribesmen !successfully resisted government troops. The Nuristan success provided a jdemonstration effect and encouraged other disenchanted tribesmen to engage in jactive resistance. The situation assumed civil war dimensions when the tribes- jmen formed a coalition and declared a jihad against the Kabul regime and itheir communist allies in Moscow?2 Meanwhile, to contain the threat of insurgency, Taraki consolidated his relationship with the Soviet Union and concluded a mutual defence agreement with Soviets in December 1978.23

Soviet concern about developments in Afghanistan

The civil war situation in Afghanistan worried the Soviets for at least two reasons: firstly, it was in Afghanistan that large populations of SovietMuslim nationalities looked into the Muslim world outside the Soviet Union.Thus it was though a successful fundamentalist islamic resistance against the Socialist regime in Kabul could have a possible contagious effect on the muslims of the Soviet Union. Secondly, given the rise of Ayatola Khomeni in Iran on the one hand and the fundamentalist nature of the mull as and the pirs of Afghanistan, on the other hand, the instability of Afghanistan had the beginnings of a broadly anti-Soviet pan-Islamic movement that threatened the balance of power in Central Asia and indeed imperiled the Asian frontiers of the Soviet Union. The Soviet leadership became yet more alarmed when a power struggle broke out among the Kabul leftists leading to the removal of Taraki from office. He was replaced by Hafizullah Amin.

Amin's rule was confined to urban Afghanistan with no control over the rebellious Afghan tribesmen who had been alienated during Taraki's term of office. His instability to crush the resistance prompted the Soviets to dispatch General Ivan Pavlovsky - a Deputy Defence Minister to Afghanistan to assess the situation. He went back to Moscow with a grim report and subsequently recommended active Soviet military intervention to restore order.24

The Soviet Invasion

Reports indicate that Amin objected to the initial Soviet plans to intervene.25 In a protracted series of negotiations that followed on the issue, there was no compromise between Amin and the Soviets. Meanwhile, under Soviet pressure, Amin moved from his Kabul presidential palace to Darulaman Palace in the outskirts of the capital on the 19th December 1979 and apprently dug in against any Soviet military incursions.26 On the 27th December, a Soviet airborne unit which had been stationed in Kabul stormed the Darulaman Palace killing Amin and his aids. This was to be the beginning of the Soviet invasion.


Six Soviet divisions and an airborne unit immediately crossed into Afghanistan and secured strategic locations. There was hardly any significant resistance from Afghan troops. Following Amin's death, Babrak Karmal was installed.As one expert on Afghanistan points out:

it is likely___ that the Soviet aims was limited to removingAmin and installing Babrak Karmal with the expectation that the Afghan army could deal with the insurgency. Yet the act of intervention itself virtually assured that the new regime could not cope with the internal resistance now inflamed by the regime's total reliance upon the Russians. Hence once

their forces were in the country, only the Russians themselves were capable of suppressing the resistance.27

To date, the Soviet Union has committed over 100,000 troops and reportedly employed chemical weapons against the Afghan rebels.28 With no end of the war in sight, the combined Soviet and Afghan effort to subdue the rebels in the mountains has now taken the form of a war of attrition reminiscent of the American experience in Vietnam.

3. GRENADA: THE FACTUAL CONTEXT

The small island state of Grenada with a population of only 11,000 is located in the Caribbean Sea about 1600 miles from the United States.Colonized by the British, the territory became independent in 1974.29 After independence, Grenada remained a British Dominion with a Westminster (parliamentary) system of government. In 1967 constitution of Grenada,30 which the state adopted in full on independence, executive authority was vested in Her Majesty (i.e. the Oueen of Great Britain). This authority was to be exercised on her behalf by a resident Governor-General either directly or through officers subordinate to him.31 The Governor-General was to exercise his powers in accordance with the advice of the Prime Minister. However, the constitution also empowered the Governor-General, "acting in his deliberate judgment" to exercise the power of the Prime Minister if he considers that "it is impractical to obtain the advice of the Prime Minister owing to his absence or illness".32

The 1979 CoupIn March 1979, following a military coup d'etat, the Constitution was

suspended and replaced with a series of decrees called "People's Laws".A pro-marxist People's Revolutionary Government led by Maurice Bishop took over the administration of the state?3 People's Law No.2 vested all executive and legislative power in the People's Revolutionary Government.34 The Governor-General was nevertheless retained as the Queen's representative with power to perform "such functions as the People's Revolutionary Government may from time to time advise."35People's Law No.18 reinstated "the full legal force and effect" of Sections 83(6), 86(7) and 90(5) of the 1967 Constitution which related to the Governor-General's powers to appoint a certain category of senior public servants.36

In so far as the internal legal situation was concerned, the 1979 coup introduced a new legal order and redefined the powers of the Governor-General, relegating him to a mere ceremonial head and adviser. Externally, the coup had complex implications on the relationship between Grenada and (1) the United States and (2) the Caribbean States.


Grenada-United States Relations

Given the proximity of Grenada to the United States, the emergence of the pro-Marxist People's Revolutionary Government was considered strategically undersirable from an American point of view. For one thing, the United States could not afford another Cuba in its backyard. Secondly, there was the possibility that the Grenada leftish revolution could have a "domino effect" on the economically and politically vulnerable Caribbean island-states.37 But in order not to alienate the new regime and push it further into the communist realm, the Carter administration recognised the Bishop government within weeks of the coup. However, the Grenada-United States reproachment never consolidated due to Bishop's persistent refusal to call elections for return to civilian rule and his continued close links with Cuba and the Soviet Union.38

With the election of President Reagan, Grenadian-American relations suffered yet more given the new president's hard line on communism. The United States took special steps to isolate Grenada: American grants torehabilitate the banana industry in West Indian States were made on the condition that none of the funds could be made available to Grenada. Similarly, American funds given to the Caribbean Development Bank were not to be extended to Grenada and neither could the state benefit from any other American grants to multilateral institutions. Grenada's refusal to condemn the Soviet Union's invasion of Afghanistan in 1979 and a later agreement with Cuba to construct a major airport;9 reportedly for military purposes40 reinforced American fears of communist influence in the country and further provided a justifiable basis for the Reagan government's hard line against it. Later events in October 1983 were to provide an excellent excuse for the United States to intervene to abort the burgeoning communist influence in the territory.

Grenada's Relations with other Caribbean States

Grenada's relationship with the Caribbean spates also suffered as a result of the 1979 coup. There was the fear in most of the states that the flamboyant Grenadian revolution could provide a demonstration effect leading to leftist activism in the Caribbean generally.*+i These ideological differences and their apprehensions notwithstanding, the other Caribbean States, together with Grenada, formed the Organization of East Caribbean States (OECS) in 1981 to foster regional integration. 42

Despite the efforts at regional integration, the apprehensions of the other OECS members were heightened by Grenada's persistent communist rhetoric and the fast developing close relationship with Cuba. The growing concern of the other OECS members was quite understandable: they all look to theUnited States for economic support and political leadership. Thus quite apart from their own immediate interests, they also remain sensitive to United States reservations on the spread of communism in the region and show a general willingness to condemn it whenever it has appeared. Events in Grenada in October 1983 were to provide the basis for an alliance between the Caribbean States and the United States to launch a final assault on .Grenadian communism.


The October crisis

On the eve of the OECS summit in Ochos Rios in 1982, there were talks of an ideological show-down between Grenada and other right wing OECS members.43 However, at the summit itself, the organization admitted the reality of ideological pluralism in the region and affirmed its members' right to self-determination. Despite their apparent willingness to accommodate the leftist upsurge in Grenada, the OECS members remained apprehensive about developments in the territory. Faced with the pressure of possible political isolation by the rest of the OECS and the definite disaffection of its most powerful neighbour - the United States - the leadership of Grenada became divided if not on basic ideological strategy then at least on tactics. Maurice Bishop advocated for a policy of appeasement towards the United States through his persistent appeals for dialogue between the two States.44 The more radical members of his government on the other hand sought to maintain the communist ties irrespective of any regional repercussions.45

By October 1983, the disagreements had degenerated into an intense power struggle. On the 12th October Maurice Bishop was toppled in a coup led by the deputy Prime Minister Bernard Coard.46 Bishop was executed seven days later, a 16-man Revolutionary Military Council was formed to govern the country. Meanwhile law and order appeared to have broken down in Grenada. Police opened fire on masses of people who had earlier taken to the streets to demonstrate in support of Bishop. As a result of the civil unrest, the new regime imposed a 24 hour shoot-on-sight curfew against all civilians.The security situation in the country further deteriorated given grounds for concern for the safety of the expatriate population. 47

The American Invasion

Alarmed that the state of instability could spread elsewhere in the Caribbean region, other OECS members met in Barbados on the 21st October and voted to ask the United States to intervene in Grenada to restore order.They based their request on:

the current anarchic conditions, the serious violations of human rights and bloodshed that have occurred and the subsequent unprecendented threat to the peace and security of the region created by the vacuum of authority in Grenada.48

Barbados and Jamaica later joined them in their appeal. The request found the United States ready and willing. On the 25th October, a "multinational" force of 1,900 American Marines and Air-borne Rangers and a token force of 300 troops from the Caribbean states invaded Grenada.

After an initial resistance by combined units of Cuban and Grenadian troops, the invading force secured the island by the 30th October?9 All Soviet and Cuban personnel were immediately expelled. The surviving members of the Revolutionary Council were detained50and the Governor-General .reinstated with his pre-1979 constitutional powers to take care cf the state pending a return to normality and popular elections.


In the words of Foreign Secretary Shultz, the invasion helped to rescue some 1,100 American nationals from the "atmosphere of violent uncertainty" prevalent in Grenada at the time.51 But more significantly it enabled the United States to destroy the basis for Soviet-Cuban influence in Grenada; and from the American point of view, returned the country to true "democratic institutions."

4. THE LEGAL ASPECTS OF GRENADA AND AFGHANISTAN COMPARED AND CONTRASTED

Ideologically, there appear to have been cogent reasons for the interventions in Afghanistan and Grenada from each super-power intervenor's point of view. But ideology is no substitute for legality. Modern international law prohibits the use of force in international relations 52 and intervention in the internal affairs of sovereign states.53 Exceptions are however made for the use of force in self-defense.54 Intervention is also permissible: (1) at the invitation of a lawful governmental authority,55(2) to protect a state's own nationals in another country,56(3) for humanitarian reasons, (e.g to prevent widespread gross human rights violations)57 and (4) in accordance with existing treaty obligations.58 It is within the framework of these exceptions that both super-powers have sought to justify their interventions.

The United States argues that it intervened in Grenada at the request of the OECS members who had in turn been invited by the Governor-General of Grenada. Secondly it maintains that the provisions of the OECS treaty provided ample legal justification for its operation and that the intervention was in any case consistent with the Charter of the Organization of American States (OAS) and the Regional Arrangements under the United Nations Charter. Finally it also advances the view that the intervention was necessary to rescue some 1,100 American citizens whose lives were imperilled by the October Crisis in Grenada.59 Similarly, the Soviet Union argues that it intervened in Afghanistan at the invitation of the country's government and that the military operation of December 1979 was further validated by the 1978 Treaty of Mutual Defense signed with the Taraki regime. The other argument of the Soviets is that the intervention was in essence an act of self-defense.60 Each of these arguments will be examined critically.

(i) Invitation

Invitation by a lawful governmental authority in a state constitutes a valid basis in international law for foreign states to intervene to provide the assistance requested. 61 The central point in such cases then is that invitation must emanate from a "lawful governmental authority". What is meant by lawful authority is whether such authority, so constituted is constitutionally empowered to issue the invitation. In the case of Grenada, the United States' position is that during the October Crisis, "the legal authorities of the Governor-General remained the sole source of governmental legitimacy." 62Consequently he was the lawful governmental authority who could validly issue the invitation to the OECS and the United States to intervene.

[198 5] AUSTRALIAN INTERNATIONAL LAW NEWS 13

As indicated earlier, the 1979 Grenada coup and the subsequent decrees promulgated by the People's Revolutionary Government stripped the Governor- General of his executive powers. Any source of substantive authority he retained was to be at the directives of the new regime. In effect, the legitimacy of the Bishop administration diminshed the executive status of the Governor-General.63 This was implicitly acknowledged by the United States when it recognized the People's Revolutionary Government. Since the government obviously did not direct the Governor-General to invite the invasion, he could not claim the decrees of the Bishop regime as his source of authority.

It is arguable that even though his executive powers had been reduced, after the arrest and execution of Bishop, and with the legitimacy of the Military Revolutionary Council still in doubt, the Governor-General may well have been the only source of legitimate authority in Grenada.64 Be that as it may, the fact still remains that the scope of his legitimate authority was determined and limited by the decrees of the People's Revolutionary Government. It is therefore within these decrees that one must assess the powers of the Governor-General and the validity of the invitation he issued. By virtue of People's Law No.3, the directives of the People's Revolutionary Government issued from time to time, became the only sources of mandate for the Governor-General. In the absence of such directives, and indeed in the absence of the People's Revolutionary Government and the inability of the Revolutionary Council to assume control, there was a power vacuum in Grenada which the Governor-General himself openly admitted.65 To suggest that the Governor-General on his own could fill up the vacuum and issue a private invitation for armed intervention is to bestow in him an authority he did not have at the material time.

It has been aruged that the "Declaration of the Grenada Revolution "merely suspended - and did not terminate" the 1967 Constitution which vested the Governor-General with substantial authority. Consequently, the constitution "revives in a setting of breakdown of authority or the dissolution of the government that suspended it." 66This view is hardly tenable. It can only be sustained at the risk of distorting the jurisprudential implications of revolutions on the continuity of law. A military coup d'etat (such as that of Grenada in 1979) constitutes an illegal change in the constitutional or legal order. It is in essence a revolution which then introduces a new legal order to replace the old.67 This effect remains the same whether the architects of the revolution announce that they have terminated or suspended the old constitution or wish to continue it in force. The difference between suspension and termination is that the former allows the revolutionaries to take and continue in force aspects of the old legal order. It must however, be emphasized that in such cases, the source of validity of the rules continued in force is the decree that permitted their continuation. From a jurisprudential point of view then, there is little practical difference between termination and suspension of legal orders. A fortiori, a suspended legal order does not revive merely because the new legal order is abruptly terminated at a later date. It requires a positive legal act of the suspending authority to reactivate a suspended legal order. Such a positive act was definitely absent in Grenada. The Governor-General could therefore not have issued the invitation on the basis of the 1967 Constitution. The American reliance on the invitation as a basis for the intervention in Grenada is thus questionable.


Equally faulty is the contention of the Soviet Union that it intervened in Afghanistan at the invitation of the Afghan government. Admittedly, there were over 10,000 Soviet personnel and troops in Afghanistan by 1978 and immediately prior to the invasion serving as technical advisers at the invitation of the Afghans.68 But the issue of invitation relates to the Soviet military operations in December 1979 and not the period before.Soviet assertions of invitations for the December operations have been collaborated by statements from the Kabul government broadcast a day after the invasion began. The material part of the statement read:

The Government of the Democratic Republic of Afghanistan taking into account the continuing and broadening interference and provocations of external enemies of Afghanistan, and with a view to defending the gains of the April revolution of 1978 which brought to power the left-wing

Government of Mr. Nur Mohammed Taraki , territorial integrity and national independence and maintaining peace and security, proceeding from the treaty of friendship, good-neighbourliness and co-operation of Dec.5, 1978, has approached the USSR with the insistent request to give urgent political, moral and economic aid, including military aid, which the Government of the Democratic Republic of Afghanistan repeatedly requested from the Government of the Soviet Union previously.The Government of the Soviet Union has met the request of the Afghan side. 69 (Emphasis added)

The statement indicates that Kabul had insistently and repeatedly requested Soviet aid through intervention. However, the initial disagreements between the Amin government and the Soviets on the propriety of the military intervention70coupled with the clashes between Afghan soldiers and Soviet troops during the invasion,71 cast grave doubts on the genuineness of any statement alleging invitation. The circumstances leave one with the conclusion that the Amin government did not issue an invitation for the invasion. It is also certain that the present Karmal regime could not have issued any invitation to the Soviets prior to the invasion because Karmal himself was in exile;72his Parchem party had not taken control of government and was therefore not a lawful governmental authority. The authoritative source of the invitation thus remains unclear and throws the Soviet justification for the intervention on the basis of invitation into considerable doubt.

The United States intervened in Grenada jointly albeit with a token force from the Caribbean states. The Soviet Union on the ether hand undertook its Afghan operations on its own. While the American mission attracted apparent local support.7,3 the Soviets were met with fierce local resistance which continues today.74 Such elements represent fundamental differences between Afghanistan and Grenada, but this notwithstanding, the illegal consequences of both interventions remain the same. The simple fact of a joint intervention does not furnish any evidence of legitimate invitation any more than a solitary action would. The action in concern does not in itself make an otherwise illegal intervention legal.75 The joint effort in an illegal conduct would only provide an evidence of a conspiracy to violate international law rather than serve a basis for vindication.


Evidence of local support (as in the case of Grenada) may indicate the wishes of the population and even constitute an implicit form of invitation. However, by its very nature such local support can only be used (and has in fact been used in the case of Grenada) as an ex post facto justification or invitation for intervention. In dealing with the issue of invitation as the basis for intervention, one is concerned with an objective set of circumstances prior to the intervention and which in themselves provide a legal foundation for the course of action. Where such circumstances e.g. the invitation are not existent, the action may be illegal ab initio. The initial illegality is not necessarily made legal as a result of a subsequent implicit invitation. 76

Local hostility as in Afghanistan against an intervening power is not in itself a conclusive evidence of the illegality of the intervention even though it may indicate a possible absence of invitation. On the other hand it needs to be noted that it could well be a government's lack of control over hostile local forces that may necessitate a valid governmental invitation of a foreign power. (A good example of such a case is the American intervention in Lebanon). In such situations the hostility of a local population cannot necessarily be interpreted as a lack of a valid invitation. In the case of Afghanistan, we have indicated that there was possibly no legitimate invitation, but this conclusion is not based on the hostility of the local population.

ii Treaty Arrangements

A central feature of the Soviet argument for intervening in Afghanistan is the reliance on the 1978 Treaty of Friendship signed between the two states.77 Article 4 which is material provides:

The High Contracting Parties acting in the spirit of the tradition of friendship and good neighbourliness, as well as the United Nations Charter shall consult each other and take by agreement appropriate measures to ensure the security and territorial integrity of the two countries...........

Article 4 as it stands does not allow for unilateral intervention. Thus any valid operation in pursuance of the treaty had to be by agreement. As indicated earlier, there was apparently no such agreement between the Amin regime and the Soviet Union. Since the Karmal administration was not in existence before the invasion, it could not have provided the agreement . either. On the other hand if any part of the treaty is interpreted to permit unilateral intervention by the Soviet Union, it would conflict with Article 1 of the treaty under which the parties solemnly declare to strengthen their relations "on the basis of equality, respect for national sovereignty, territorial integrity and non-interference in each others internal affairs". More significantly, the interpretation would make the treaty void to the extent that it conflicts with a pre-emptory norm78 of international law and the United Nations Charter norms relating to the inviolability of territorial sovereignty. In sum, the Soviet attempt to rely on the 1978 treaty is vitiated by the absence of any prior agreement.


The United States similarly bases its intervention on the treaty of the OECS.79 This is rather curious because the United States is not a party to the OECS treaty. But on the other hand it may perhaps be aruged that its reference to the treaty is by virtue of the invitation from the OECS members. In other words, it relies on the treaty indirectly as opposed to the direct position of the signatory states. Even if this explanation is accepted, it would not vindicate the American position. The treaty establishes a Defence and Security Committee as one of its organs. Under Article 8(4), the Committee is responsible for

co-ordinating the efforts of Member States for collective defence and the preservation of peace and security against external aggression and for the development of close ties among the Member States of the Organisation in matters of external defence and security including measures to combat the activities of mercenaries, operating with or without the support of internal or national elements, in the exercise of the inherent right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations.80

The material section of the treaty only relates to collective defense measures against external aggression. It cannot be interpreted to include internal disturbances such as occurred in Grenada to warrant a collective action by the OECS. Article 8(5) also provides that any decisions taken in pursuance of Article 8(4) "shall be unanimous". The OECS decision to invite the United States to intervene in Grenada was far from unanimous.Apart from the obvious fact that Grenada did not vote to be invaded, it is reported that St. Kitts-Nevis and Montserrat declined to vote.81

On its proper interpretation the OECS treaty fails to provide a legitimate basis for the American intervention in Grenada. Arguments to the contrary are based on misconceptions of the exact legal scope of the treaty.

Consistency with the OAS Charter

A fundamental difference between the Soviet and American reliance on treaty provisions is that the United States has the benefit of the membership of a regional organization within whose institutional structures it has sought to justify its use of the OECS treaty. As a basic point, the view is advanced that the Grenada mission is consistent with the OAS Charter.82 This is hardly tenable. Article 18 of the (revised) OAS Charter stipulates that "no state or group of states has the right to intervene directly or indirectly for any reason whatever in the internal or external affairs of any state". This is further reinforced by Article 20: "the territoryof a state is inviolable; it may not be the object, even temporarily, of military occupation or of other means of force taken by another state". When read together Articles 18 and 20 explicitly prohibit intervention by the signatory states. Article 22 of the OAS Charter however makes allowances for measures adopted for the maintenance of peace and security in accordance with "existing treaties". The "existing treaties" referred to may be such agreements as the Rio Treaty83and the Caracas Resolution?4 which permit intervention under certain circumstances.85 However, Grenada is not a party to any of these treaties. The only treaty the United States could rely on for the purposes of Article 22 would be the OECS agreement. But even if the United States as a non-signatory to that treaty could rely on its provisions, one only needs to point out that the provisions of the OECS


treaty have no relevance when dealing with the internal disorders of a member state.

There is a fundamental distinction between the external oriented nature of the defense arrangement under the OECS treaty and the internal oriented features of the Rio Treaty and the Caracas Resolution. To equate the terms of the OECS agreement with those of the latter would only be possible through a conscious act of misinterpretation.

Article 28 of the OAS Charter allows collective self-defense by the American States but this is subject to there being an act of aggression against any of the States or to the occurrence of "a conflict between 2 or more American States...or any other act or situation that might endanger the peace of America". The United States and the states that provided the token force for the Grenada mission can obviously not plead collective selfdefense under Article 28 because the Grenada situation does not fit into any of the circumstances envisaged in its provisions.

Consistency with the regional arrangements under the United Nations Charter.

Article 52 of the United Nations Charter permits the existence of regional arrangements or "agencies for dealing with...matters relating to the maintenance of international peace and security as are appropriate for regional action" provided such actions taken are consistent with the Purposes and Principles of the United Nations. The United States consequently argues that its intervention in Grenada through the OECS is consistent with Article 52 of the Charter. This argument is hardly correct. Admittedly the OECS can be classified as a regional agency?6 however the internal disorder in Grenada did not amount to a threat to international peace and security which required maintenance by a regional agency. Article 2(4) of the United Nations Charter expressly prohibits the use of force in international relations. The failure of the United States and other Caribbean countries to use non-military means to resolve the Grenada problem was a violation of Article 2(4) and of Article 33 of the Charter which calls for the pacific settlement of disputes. Assertions that Article 2(4) was not violated because of the express invitation by the Governor-General of Grenada are vitiated by his lack of authority at the material time. The military invasion was therefore inconsistent with the Purposes and Principles of the United Nations and not justifiable under Article 52 of the Charter.

Unlike the United States, the Soviet Union is not able to point to the existence of any regional structures to justify its action in Afghanistan.This contrast between the two interventions is however immaterial. The canopy of a regional agency does not necessarily validate the actions of its members. In other words, when the interventions in Afghanistan and Grenada are compared and contrasted, the presence of the inter-American regional agency does not make the United States action any less illegal than the Soviet conduct in Afghanistan.


iii Self-defense

In a statement released after the invasion of Afghanistan the Late Soviet leader Breshnev attempted to justify the Soviet action by noting that:

The unceasing armed intervention, (and) the well advanced plot by external forces of reaction created a real threat that Afghanistan would loose its independence and be turned into a imperialist military bridgehead on our country's southern border.In other words the time came when we could not but respond to the request of the Government of Friendly Afghanistan. To have acted otherwise would have meant leaving Afghanistan a prey to imperialism; allowing aggressive forces to repeat in that country what they had succeeded in doing for instance in Chile...To have acted otherwise would have meant to watch passively the origination on our southern border of a centre of serious danger to the security of the Soviet Union.87

It follows from his statement that apart from the request of the Afghan government, the Soviet Union also took the view that the invasion was necessary to safequard its southern frontier. Implicit in this argument is a plea of self-defense.

Article 51 of the United Nations Charter recognizes the collective and individual right of self-defense "if an armed attack occurs against a Member of the United Nations". The issue is whether the Soviet Union can rely on this provision to justify her intervention as intimated by Breshnev. In modern international law there is disagreement as to the circumstances in which a right of self-defense accrues to a state. Literally interpreted, the phrase "if an armed attack occurs" implies that a state can only resort to self-defense where an armed attack has already occurred against it.Within this interpretation the Soviet Union cannot rely on Article 51 because at no point in time was there an armed attack against it. Of course for the purposes of collective self-defense, there need not be an armed attack against the Soviet Union itself. It is enough if the attack was against a state with whom the Soviet Union had a mutual defense agreement for the purposes of collective self-defense (e.g. the Warsaw Pact).There was no such agreement between the Soviets and Afghanistan.

On the other hand, there is the view that Article 51 encompasses anticipatory self-defense. In other words, in circumstances where a state reasonably anticipates an attack on itself, it need not wait till the attack occurs. It can take a pre-emptive action to abort such an attack.88 Even though this view has attracted several criticisms89it was advanced as the basis fo Germany's invasion of Norway on the eve of WWII,"the Israeli military strike in the Six Day War of 1967 and the 1981 Israeli raid on the Iraqi nuclear reactor.91 Whatever the merits of anticipatory self-defense may be, the question remains whether the facts of Afghanistan leave room for such a defense.


For the purposes of anticipatory self-defense, the armed attack, not having occurred, must nevertheless be eminent, "instant, leaving no choice of means and no moment for deliberations." 92 Even though there was a clear evidence of a power struggle and a general state of instability in Afghanistan prior to the invasion, there was no indication of any eminent attack on the Soviet Union. The Afghan insurgents were reportedly being supplied with material aid by Pakistan and the United States. While this could have constituted aggression against Afghanistan, it was at best only remotely related to the security of the Soviet southern frontier.It therefore fails to provide the adequate basis for anticipatory selfdefense to justify the invasion.

Unlike the Soviet Union, the United States has not specifically invoked Article 51 as a basis for its Grenada mission. This is understandable because there was no attack against it and neither was there an attack against any American state. Given the 1,600 mile distance between the two states, the United States could hardly use the development of the airstrip in Grenada or the alleged Soviet-Cuban arms build-up as a good basis for anticipatory self-defense. In contrast, it is the geographical proximity and functional contiguity between Afghanistan and the Soviet Union which make the feeble argument of self-defense attractive to the Soviet Union. The geographical determinants in themselves are however relative significance in assessing the legal validity of both interventions.

iv The Protection of Nationals

Even though there was reportedly over 10,000 Soviet nationals in Afghanistan who could arguably have been threatened by the general anti-communist sentiments prior to the invasion, the Soviet Union did not use the protection of its nationals as a basis for the invasion. The United States on the other hand had about 1,100 nationals in Grenada. Their protection was used as one of the principal reasons for the "rescue operation" in Grenada.

It is generally accepted in international law that a State can take steps to protect its nationals resident in a foreign state where the safety of their lives and property are threatened and the foreign state has demonstrated an unwillingness or incapacity to ensure their safety. The Belgium government used this as a basis for its operation in Stanleyville during the Congo crisis;93the United States also applied it during the Dominican crisis in 1965.94 In the case of Grenada, it is debatable whether the United States nationals were in fact in any eminent danger.95 However, given the general state of instability in the territory in the October crisis one would be justified in giving the United States the benefit of any doubts about the threatened safety of its nationals. This in itself would not vindicate the armed invasion. The prohibition of the use of force and the requirement for pacific settlements of disputes in modern international law dictate that the use of force for whatever purposes must be a last resorti.e. where peaceful diplomatic attempts have failed. With respect to Grenada, even though United States representatives consistently emphasized that "every effort was made to secure the evacuation of American nationals by diplomatic means,"96this only related their negotiations with the new Military Revolutionary Council in Grenada. The United States does not appear to have discussed the prospects of a peaceful and non-military solution with either the OECS or the OAS or the United Nations pursuance to Article 33 of the United Nations Charter.


The speed and eagerness with which the United States resorted to armed intervention as opposed to a peaceful settlement were reminiscent of its action in the Dominican Republic in 1965. They also provide a valid basis for the contention that in its Grenada operation, the safety of its nationals as such was arguably not a priority. The United States appeared to have been more interested in a swift military operation to destroy the basis for a communist resurgence in Grenada. The presence of its 1,100 nationals whose safe evacuation could have been arranged through international channels afforded a convenient and ostensible basis for this ideological necessity. If this is correct then the United States action is far from irresproachable in international law. As the British Prime Minister,Margaret Thatcher, noted in an interview after the invasion, if one is to pronounce a new law that wherever communism rears its head the United States has a self-imposed mandate to intervene, then we are headed for international anarchy.97

CONCLUSION

Despite their ideological differences and varied strategies, the Soviet Union and the United States demonstrate a remarkable degree of similarity in the substance of their policies in relation to order and stability in the Third World. This is particularly so with regard to states in their "backyards". To understand the conduct of the super-powers in cases such as Afghanistan and Grenada one must therefore take note of the commitments of the super-powers to the regional status quo and any changes and the extent to which such situations benefit or adversely affect them.More often than not, the legal principles advanced by both super-powers in support of their conducts in international relations are only superstructural niceties designed to make their ideological decisions palatable for international consumption.

Whatever the ideological imperatives must have been for the operations in Afghanistan and Grenada, they fail to lend themselves to proper legal justifications. Grenada certainly differs from Afghanistan in style and certain factual terms but the legal consequences for both actions are the same - a flagrant violation of the norms of non-intervention and the prohibition of the use of force, contrary to the Purposes and Principles of the United Nations and international law generally. Any attempts to ascribe a cloak of legality to one and illegality to the other would amount to an objectionable international double standard.


NOTES

* LL.B (Hons Ghana, M.Int'l. L. (ANU) Ph.D Candidate, Tutor (University of Tasmania).

1. Richard S. Newell, "Soviet Intervention in Afghanistan" 36, The World Today, 250 (1980); id., Vol. 35, 433 (1979); "International Responses to the Afghan Crisis" id., Vol. 37, 172 (1981); David Chaffetz,"Afghanistan in 1982, Still no Solution" 23 Asian Survey, 133 (1983)Jaqat S. Mehta "Afghanistan: A Natural Solution" 47 Foreign Affairs,139 (1982); Anthony Hyman "Afghanistan's Unpopular Revolution" 69The Round Table, 222 (1979); Ian Cummins "Afghanistan: The Great Gameof the Domino Theory?" 34 Australian Outlook, 141 (1980). See also Eden Narby "The Ethnic Factor in Soviet Afghan Relations" Asian Survey 239 (1980). For a legal analysis of the Soviet intervention seeA.G. Noorani, "Afghanistan and the Rule of Law" 24 The Review of the International Commission of Jurists 37, 43-51 (1980); Marian L. Nash "Contemporary Practice of the United States Relating to International Law" (a reproduction of a Dept, of State release on the Afghanistan case) 74 A.J.I.L. 418 (1980).

2. Hoagland "U.S. Invades Grenada, Fights Cubans: Reagan Cites Protectionof Americans" Washington Post, Oct. 26 1983, 1, Peter D. Frazer,"Revolution and Suicide and Commonwealth Disarray: Grenada October 1983"74 The Round Table, 24 (1984) See also C.H. Grant, "Ideological Pluralism in the Caribbean" kL , 174; for an analysis of the relationship between the U.S. and Grenada prior to the invasion. On the legal aspects ofthe U.S. action see Christopher C. Joyner, "Reflections on the Lawfulness of Invasion" 78 A.J.I.L. 131 (1984); John Norton Moore, "Grenada and International Double Standard" iji., 145; and also Francis A. Boyle et al, "International Lawfulness in Grenada", id., 172; Detlev F. Vagts, "International Law Under Time Pressure: Grading the Grenada Take-HomeExamination", icL, 169.

3. With regards to Afghanistan, the U.N. General Assembly"...strongly deplore the "armed intervention" and called for the "immediate and unconditional total withdrawal of the foreign troops" G.A. Res. ES-6/2 (14 Jan. 1980) adopted by 104 in favour, 18 against and 18 abstentions and 12 absentor not voting. A Security Council draft resolution condemning the intervention was vetoed by the Soviet Union. The General Assembly also deplored the American action in Grenada as "a violation of international law" in Resolution 38/7 (2 Nov. 1983) adopted by 108 votes to 9 with 27 abstentions. A draft resolution condemning the invasion in the Security Council was also vetoed by the United States. For a survey of international responses to the Afghanistan and Grenada operations see 26 Keesings Contemporary Archives 30233-4 (1980) and Time Magazine, Nov.7 1983 respectively


4. A non-exhaustive list of super power interventions since WWII includes the Soviet actions in Hungary (1956), Czeckoslovakia (1968) and Ethiopia (1976). The United States has similarly intervened in Guatemala (1954), Vietnam, Cuba (1960 and 1964) the Dominican Republic (1965) and Lebanon (1983). The practice has not been restricted to these two super-powers. The French intervened in the Chad, the Cubans in Angola (continuing) and the Tanzanians in Uganda, and the Vietnamese in Kampuchea (continuing).

5. See works cited in note 1.

6. Compare the views vigorously advanced by John Norton Moore, op.cit., note 2 with those expressed by Bagts, op.cit., note 2. See also Harsch"The Case for Invading Grenada" Christian Science Monitor, 22 (Nov.l 1983). j

7. Time Magazine 14 Nov. 1984 j8. Cummins, op.cit note 1, 143. For an overview of the history of Afghanistan

see generally John C. Griffiths, Afghanistan (London 1967) D.N. Wilber, Afghanistan (New Haven 1962); W. Fraser Tytler, Afghanistan - A Study of Political Developments in Central Asia. (O.U.P. 1950)

9. A.E. Senn, Readings in Russian Political and Diplomatic History Vol.l,138-139 (111. 1966).

10. Cummings, op.cit., note 1. 143

11. In all, there were three Afghan wars in 1839-42, 1879 and 1919 respectively.See generally Sir J.W. Kaye, History of the War in Afghanistan (3 Vols.)(London 1874), Sir Vincent Eyre, The Afghan Wars, (London 1843); IkbalAli Shah, Modern Afghanistan, Chap. 4 (London 1939).

12. G.F. McMunn, Afghanistan From Darius to Amanullah, 282 (London 1929).

13. Note 10

14. J.V. Stalin, Problems of Leninism 75 (Moscow 1953).

15. Cummins, op.cit., note 1, 144.

16. Newell, 1979 op.cit note 1, 432. Among Amin's enthusiastic supporters were the junior army officers who had been trained in the Soviet Unionat the rate of about 1,000 per year under a 1953 agreement signed between the Daoud government at the time and the Soviets (Chaffetz, op.cit., note 1,17)

17. Chaffetz, id., 18.

18. Id.., 19.

19. Id., 20

20. For an overview of Taraki's attempts at reforms, see Newell 1979, op.cit., 437-438, Fred Kalliday "Revolution in Afghanistan" New Leftist Review 27 (Nov. - Dec. 1978).


21. Chaffetz op.cit., note 1, 22.

22. Id., 26.

23. 22 I.L.M. 1 (1980)

24. New York Times 14 Jan. 1980

25. Newell, 1980, op.cit., 251.

26. Ibid.

27. Id., 254

28. IcL, 256. See however, Dupree op.cit., note 1, for the view that the figure could be about 120,000 men and that the Russians have been engaged in "rubblization of villages" and "migratory genocide" (135).

29. G.A. Res 3204 (XXIX). On the Constitutional and political history of the territory, see generally A. Sparkman, Constitutional Developmentsin the West Indies 1922-1968 (Barbados 1975); George C. Abbott, "Grenada: Maverick or Peace-Maker in the West Indies?" 36 The World Today, 154 (1980); Tony Thorndike "Grenada: Maxi-crisis for Mini-state", 30 TheWorld Today, (1974). See generally also Anthony Payne, The Politics of the Caribbean Community 1961-79: Regional Integration Among New States (Manchester 1980).

30. The constitution is reproduced in A. Blaustein and G. Flanz (eds.) Constitutions of the Countries of the World (1974).

31. Sect. 57 of the Granada Constitution (The Grenada Constitution Order,1973 No. 2155).

32. Sect. 61

33. See generally D. Sinclair Dabreo, The Grenada Revolution (Casteries,St.Lucia 1979)

34. P.L. No.2 is reproduced in A. Blaustein and G. Flanz (eds.) Constitutions of the Countries of the World (1983)

35. P.L. No.3., ibid.

36. This included members of the Grenada Public Service Commission, the Director of Public Prosecutions and members of the Public Service Board of Appeal.


37. Grant, op.cit., note 2. The American uncompromising attitude towards the possible spread of communism in the Caribbean is of course not new.It was well exhibited in the 1950s against Guatemala and against Cubain the 1960s. See generally J. Dreir The Organization of American States (New York 1962) particularly his comments on the Caracas Resolution of 1954, at 54. See also H. Dinerstein, Intervention Against Communism (1967)

38. Grant, id., 179.

39. Anthony Maingot "Cuba and the Commonwealth Caribbean" 9 Caribbean Review,7-10 (1980).

40. The airport, with a runway of over 9000 feet was ostensibly to be usedas the basis for Grenada's tourist industry. However, American intelligence organizations assessed that the length of the runway far exceeded the commercial planes available to Grenada. It was thus believed that the airport was most probably to be used as a refuelling point for Soviet transport planes enroute to deliver arms and military logistics to Nicaragua and other prospective Soviet allies in the region. It was also believed by the Americans that it could be used as a strategic powerhouse for subversive operations throughout the Caribbean region.(Cannon, Strategic Airport, Hostage Fears Led to Move" Washington Post,Oct. 23 1983, A.1, A.8.

41. Grant, op.cit., note 37, 179-180

42. 20 I.L.M., 1166 (1981). The membership of the O.E.C.S. include Antigua, Dominica, Grenada, Montserrat, St. Kitts-Nevis, St.Lucia, St. Vincent and the Grenadines.

43. Grant, op.cit., note 37

44. Bishop first made the appeal in a letter to President Reagan in 1981. He subsequently repeated it in his visit to Washington in 1983 (30 May -7 June) Id., note 6.

45. Minutes of the Central Committee of the New Jewel Movement (i.e., the party that took over power after the 1979 coup) indicates that the radicals inthe government considered Bishop a reactionary and a "bourgeois deviationist" who was too slow to consolidate a "Leninist restructuring of Grenadian society" and was consequently not suitable for the leadership of the revolutionary movement (Statement by K.W. Dam, Deputy Secretary of State,U.S. Dept, of State File No. P83044-1525, partly reproduced in 78 A.J.I.L,200 (1984).

46. Ibid.

47. Ibid.

48. Ibid., 202.

49. Smith, "2 Americans Killed: Cubans Clash with Force, - 30 Advisors areReported Safe". New York Times 26 October 1983 A1, Col. 6: U.S. Dept, of State and Defense Grenada: A Preliminary Report 1 (Washington 1983).

50. Jenkins, "U.S. Forces Seize Fugitive Leader of Grenadian Coup" Washington Post 31 October 1983, A.I. Col. 6.


51. Time Magazine, 14 Nov. 1984.

52. Article 24 of the United Nations Charter.

53. United Nations Declaration on Principles of International Law concerning Friend by Relations (G.A. Res. 2625 (XXV)); Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States(G.A. Res. 2131 (XX)).

54. Article 51 of the United Nations Charter.

55. D.W. Bowett, "The Inter-relation of Theories of Intervention and Self-Defense" in John Norton Moore (ed.), Law and Civil War in the Modern World 38, 42 (Baltimore 1974); John W. Burton "The Relevance of Behavioural Theories of the International System", in Id., 92, 99-100.

56. D.W. Bowett, Self-Defense in International Law, (London 1958); R. Lillich,"Forcible Self-help by States to Protect Human Rights" 53, Iowa L. Rev. 325, (1967); "Intervention to Protect Human Rights" 15, McGill L.J. 205, (1969) . Moore "The Control of Foreign Intervention in Internal Conflicts" 9, Va.J. Int'l L., 209, 261 (1969) See also J.P. Fonteyne "Forcible Self-help by States to Protect Human Rights: Recent Views from the United Nations"in R. Lillich (ed.) Humanitarian Intervention and the United Nations 197 (1973) and the authorities cited therein.

57. McDougal and Reisman "Humanitarian Intervention to Protect the Ibo's" inLillich (ed.) id., 167; J.P. Fonteyne, "The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under theUnited Nations Charter", 4 Can. W. Int'l L. Journ; 203, (1973-74); R. Lillich, "Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives" in Moore, (ed.) op.cit., note 55, 220;Moore, "Toward and Applied Theory for the Regulation of Intervention" in Id., 324. But see Ian Brownlie, "Humanitarian Intervention" in Id., 217.

58. Other exceptions include intervention in aid of colonial self-determination struggles and collective action in pursuance of a United Nations directive, see Moore, (1969), op.cit., note 56, 246; James Crawford,The Creation of States in International Law 114-115,(1979). For other exceptions to the norm of non-intervention see Oppenheim, International Law, Vol.l (Lauterpacht ed.) 305-315 (London, 1955), J.G. Starke, An Introduction to International Law, (London 1972). Despite these exceptions the exact limits of permissible intervention remain debatable.See generally, Thomas and Thomas, Non-Intervention, 67 (Dallas 1956).

59. See statement by Dam, op.cit., note 45.

60. 26 Keesing's Contemporary Archives, 30229, 30236, (1980) See alsoB.L. Breshnev The Truth about Afghanistan, Documents, Facts, Eyewitness Reports, 9-10 (Moscow 1980).

61. Note 55.

62. Dam, op.cit., note 45, 203


63. See text to notes 33-35.

64. The argument has been advanced by Moore, op.cit., note 1, 160.

65. In a letter addressed to Prime Minister John Adams of Barbados, the Governor-General stated; "You are aware that there is a vacuum ofauthority in Grenada following the killing of the Prime Minister___ "(ib. 148).

66. Note 64.

67. Hans Kelsen, General Theory of Law and State, 220 (London 1946); The Pure Theory of Law 209 (London 1967). See also the decision in Madzimbamuto v. Lardner-Burke 3 W.L.R. (1968) 1229, 2 S.A. (1968) 284, 328-9. Useful comments in this regard are also made by Tsatsu and Fui Tsikata in University of Ghana L.J. 192 (1970); O'Connel, State Succession in Municipal Law and International Law Vol.l, 101 (Cambridge 1967) 101;and T.0. Elias, in 5 Nigerian L.J., 129, (1971). But see also the critical comments by J.M. Finnis, "revolutions and Continuity of Law" in A.W.B. Simpson, Oxford Essays in Jurisprudence (Second Series) Chapter III, (Oxford 1973).

68. Newell, (1980) op.cit., note 1, 250.

69. 26, Keesing's Contemporary Archives, 30229 (1980).

70. Note 25.

71. Reportedly, 3000 Afghan soldiers died while resisting the invasion in the 48 hours of fighting. (Note 69).

72. Ibid., Newell, (1980) op.cit., note 1, 256.

73. See for instance "Grenadians Welcome Invasion, a Poll Finds" New York Times. According to this report 91% of Grenadians interviewed supported the invasion.

74. The Kabul regime on the other hand, boasts of 98% support. The Soviet Union, however, concedes the fact of the resistance but explains that it is the work of a reactionary minority who are agents of imperialists operating from Pakistan. (Newell (1981) op.cit., note 1.)

75. In this regard see the critical comments by Casteneda on American practicein "Pan-Americanism and Regionalism: A Mexican View" 10, Int'lOrganization, 382 (1965).

76. The validity of this proposition draws strength from the international law maxim ex injuria non oritur jus. See generally Ian Brownlie,Principles of Public International Law 511 (Oxford 1979).

77. Note 23.

78. Vienna Convention on the Law of Treaties (Article 53).


79. Dam, op.cit., note 45, 203.

80. Emphasis added.

81. Taylor, "Experts Question Legality of the Invasion of Grenada" New York Times, Oct. 26 1983 8.

82. Note 79. The Charter is reprinted in 48, U.N.T.S. (1952). See a revised version in O.A.S. Treaty Services No. 1-A 0AS0R OEA/Ser. A/2 Add 2 (1967).

83. Reprinted in 42, A.J.I.L. Supp. 53 (1949).

84. 10th Inter-American Conference, March 1028, 1954, Washington D.C., reprinted in 30 Dept, of State, Bull. 420 (1954).

85. The Rio treaty allows for (collective) inter-American action in the event of "aggression". Aggression in the treaty is defined as "any action against the inviolability or the integrity of the territory or the securityor political independence of any American State___ or any other situationor fact which may endanger the peace of the America's" (emphasis added). Given this rather broad definition of aggression, the 0AS as an organization appears to have an unrestricted right of intervention.See Miller, "Non-Intervention and Collective Responsibility in the Americas" U.S. Dept, of State Bull. Vol.22 (1950) 768; J. Cabranes,"Human Rights and Non-Intervention in the Inter American System",Michigan Law Rev. Vol.65, (167), 1147; Thomas and Thomas, The Organization of American States, Chapt. 14 (Dallas, 1963).

The Caracas Resolution is more specific and allows for intervention by the 0AS in the event of 'domination' or control of the institutions of a member state by communists. On the implications of the resolution see John Dreir, The Organization of American States 43 (New York, 1962) Neale Ronning "Intervention, International Law and the Inter-American System"III Joum. of American Studies, 249 (1963); Dihigo "Legality of Intervention Under the Charter of the Organization of American States", Proceedings of American Society of Int'l L., 91 (1957).

86. On the definitional criteria for a regional organization, see generallyL.B. Miller, "Regional Organization and the Regulation of Internal Conflicts", 19 World Politics, 584, (1967); L. Miller, Prospects for Order through Regional Security in Falk and Black (eds.) The Future of the International Legal Order 556, 572 (New Jersey, 1969); Thomas Franck, "Who Killed Article 24" 64, A.J.I.L. 809, 832 (170), Frey-Wouters,Prospects for Regionalism in World Affairs" in Falk and Black, (eds.) id., 463,466.

87. Note 60.

88. Bowett, 1958 op.cit., note 56, Chapts. 5 and 6


89. Ian Brownlie, International Law and the Use of Force b.y States, 250-257 (Manchester 1963), M. Akehurst, A Modern Introduction to International Law 222-223 (London 1982).

90. Nurumberg Trials, 41 A.J.I.L. 205 (1947).

91. Mallison and Mallison, "The Israeli Attack of June 7, 1981, report IraquiNuclear Reactor: Aggression or Self-Defense? 15 Vand. J. Transnat'lL. 417 (1982); Anthony D'Amato, 77 A.J.I.L. 584 (1983).

92. Note 56.

93. Falk, Legal Order in a Violent World 324-35 (New Jersey 1968).

94. Nanda, "The United States' Action in the 1965 Dominican Crisis" Impact on World Order ,43 Denver L.J. 439 (1966); Thomas and Thomas, The

' Dominican Republican Crisis in 1965, 1-83 (9th Hammarskjold Forum, 1967).

95. Despite repeated reports that the United States nationals were not safe, there were occasional allegations to the contrary. See for instance Omang, "Americans in Grenada Calling Home, Say They Were Safe Before Invasion", Washington Post, (Oct. 26, 1983) 11.

96. See authorities cited in Moore 1984 op.cit., note 2, 149-150. But seeTime Magazine Nov. 7, 1983. Col. 1, 24 for the report that the Revolutionary Council sent a note assuring the United States government that the nationals were in no danger and that they could be evacuated at any time.

97. Time Magazine id., 41.


TEACHING AND RESEARCH IN INTERNATIONAL LAW IN AUSTRALIA

Professor James Crawford*

1. HISTORICAL BACKGROUND

(1) The British Acquisition of Australia and its Implications

In terms of the history of mankind, Australia has been settled for a considerable period of time: estimates of the length of time the Aboriginalpeoples of Australia have been living there vary, and the date has tended to be pushed back by recent discoveries and the use of advanced dating techniques. At present the estimate is of the order of 40-50,000 years, though some parts of Australia were settled much more recently than that. Unfortunately this aspect of Australia's history went virtually unrecorded: there were undoubtedly contacts between Northern Australian groups and people from what is now Indonesia and Papua New Guinea, and perhaps with Portugese sailors and traders also. Aboriginal groups undoubtedly had frequent contacts with other groups. Some of these were hostile but others involved trade, exchange, intermarriage and alliance.

In terms of recorded history, the first event of significance both to the Aborigines and to the intending British settlers of Australia was an international legal event, or at least an event with international legal implications: the so-called "discovery" of Eastern Australia and the claim toBritish sovereignty over the whole of Eastern Australia made by Captain Cook in 1770, and followed up by the settlement of Sydney Cove and the Proclamation of Eastern Australia as the colony of New South Wales in 1788. This event had implications both externally, so far as the competing claims to territory of other countries (by this stage principally the French) were concerned, and internally, so far as the Aborigines were concerned. The British annexation of Australia proceeded on the basis that the whole continent was legally terra nullius, and no treaty or other arrangement (similar for example, to the Treaty of Waitangi in the North Island of New Zealand) was concluded.Australian courts have always regarded the process by which Australia was acquired in international law, and even (so far) the appropriate classification of that process, as a matter which is not justiciable by virtue of the Act of State doctrine. However, the consequences of acquisition remain justiciable, and there was very active debate, commencing at the early stages of settlement after 1788 but which has, remarkably enough, continued to the present day, about the impact of settlement on the status and allegiance of the Aboriginal peoples. The argument that, receiving no protection from British Laws, the Aborigines owed no allegiance to them, was made and rejected in 1836, but it has continued to arise, in various forms, since. Indeed, a Parliamentary Resolution moved by the Commonwealth's Minister for Aboriginal Affairs in 1983, would have declared that:

(a) the people whose descendants are now known as the Aboriginal and Torres Strait Islander people of Australia were the prior occupiers and original owners of Australia and had occupied the territory of Australia for many thousands of years in accordance with an Aboriginal system of laws which determined the


2

relationship of Aboriginal responsibility for and to the land to which they belonged;

(b) from the time of arrival of representatives of King. George III of England, and the subsequent conquest of

the land and the subjugation of the Aboriginal people, no settlement was concluded between those representatives and the Aboriginal and Torres Strait Islander people;

(c) as a result of the colonization of the lands by Great Britain the rights of the original owners and prior occupiers were totally disregarded ... 5

Again however, the debate relates to the consequences of the situation, not its factual or legal effectiveness. And these consequences are now bound up, inseparably, in a range of concerns about the present position of Aboriginal people, concerns which are reflected in a developing interest (in western countries at least) as to the international law relating to minority and indigenous rights.

(2) The Colonial Period (1788-1920)

The first lawyers in the new Australian colonies were of course British trained, and most of them were officials. Conditions in the colonies in the early years were exceptional, and often very difficult, but the emphasis in terms of change was towards rather than away from British models. Trial by jury was introduced, in as near as possible its English form, and many other peculiarities of English institutions, including the separation of law and equity, were adopted as part of the general following of English models. The treatment of Australia as a settled colony entailed the general application of English common law, which was adjudged suitable to the condition of the colony's with only minor exceptions, and of statutory law as at the date of reception (which was either the date of initial colonisation or some later date fixed by statute). At this time, international law issues were of comparatively minor significance, such matters being dealt with by the Imperial authorities in Whitehall.

On the other hand, when Australian universities started to be established in the latter half of the 19th century (e.g. Sydney (1850), Melbourne (1852), Adelaide [1874)), it was envisaged that Law would be one of the degrees offered, although the realisation of these plans took considerably longer to achieve. To quote Professor Shearer:

"As in England, the first courses in Law in Australian universities were given in the faculties of Arts and were associated with the teaching of history. Hearn, in Melbourne, for example, arrived in 1855 to teach in the areas of History, Political Economy and Law, and did not assume the title of Professor of Law until the establishment of separate Faculty of Law in 1873. In Sydney there was no regular curriculum in law until the establishment of a School of Law, and the appointment of Pitt Cobbett as its first professor in 1890. The same year saw the establishment of the first chair of law in the University of Adelaide, with Dr. F.W. Pennefather as its incumbent, although the School of Law itself had been formally created in 1883. 0


3

The early Australian law schools were small institutions, with a handful of students each year, and with the teaching shared between one full-time member of staff, the Professor of Law, together with part-time teachers drawn from the local legal profession. Indeed this remained the pattern for legal education until the 1950s, when the modern professional law schools, with a preponderance of full-time staff and a significant number of students, began to be established. Moreover, students studied legal subjects in conjunction, in most cases, with work as articled law clerks in local legal firms. Nonetheless, partly because of the tendency to adopt English models (so far as legal education is concerned, comparatively recent models) of university education as with other things, and partly perhaps because the demand for "practical experience" and attention to the minutiae of legal practice was substantially met by the dose of experience law students had as articled clerks, the actual curricula of the early Australian Law Schools were remarkably broad and general in character, including both classical languages, some arts subjects, and general law subjects with an emphasis upon public law, both constitutional law (most of it English constitutinal law) and international law. International law was a compulsory subject in.all the early Australian law courses, though it did not always remain so. 1 It is probable that the subject International Law was taken to encompass both a fairly broad range of Public International Law (both the laws of war and of peace, which were then much more nearly co-equal in terms of emphasis in the subject than they are now) and aspects of private international law. This is no longer the case: all Australian law schools offer their own separatecourses in conflicts of law or private international law, for the most part taught by persons who do not profess to be public international lawyers. The irony is that the links between private international law and public international law are in some respects closer now than they ever were, with the elaboration of considerable numbers of uniform conventions on private international law (e.g. under the auspices of the Hague Conference on Private International Law and similar bodies12), and through the adoption of uniform conventions on substantive private law matters, especially in the area of international trade. These developments present special problems of private international law and of legal interpretation to which international lawyers have a contribution to make.13

Whatever the reason for the early emphasis on public and international law issues in Australian law courses, the fact is that the first Australian law professors tended to be public lawyers, and a number of them made a name for themselves as international lawyers. Pitt Cobbett, whose only major work, Leading Cases and Opinions in International Law was first published in 1885, was born in Adelaide, and after an education in England was appointed to the first Challis Chair of Law at Sydney University in 1890. He advised the Commonwealth Government during the First World War in international law matters. His book, which went to six editions, was frequently cited by other writers in the first half of the century, and was the first book produced by an Australian to have any impact in the field of international law.14 Indeed, it was probably the first book produced by an Australian on any international law topic. By contrast, other early law professors, though they often taught international law, had primary areas of interest elsewhere, for example in constitutional law (Hearn and Harrison Moore), legal history (Jenks), or jurisprudence (Salmond and Jethro Brown).


4

It has to be remembered that, despite the federation of the six Australian colonies in 1900 to form the Commonwealth of Australia, Australia remained, both legally and attitudinally, very much a British colony until the First World War. There was no significant international involvement on the part of Australia in terms of international conferences or other diplomatic activities, although there grew up practices of consultation and involvement of the colonies in imperial treaty making, a process recorded in detail by Professor O'Connell. The impact of the First World War, the first general war in which Australia was involved, began to change both the attitudes and the law. Australia was separately represented, though as part of an Imperial delegation, at the Versailles Conference, and became a separate signatory to the Treaty of Versailles. 6 It was a separate party to the League of Nations. These were the first significant steps towards the acquisition by Australia of a recognised international personality, and towards its separate involvement in international relations. '

(3) The period of growing involvement in international relations; 1920-1945

It might have been expected that this development would lead to an increased interest in the study of international law in Australia Law Schools. Paradoxically the reverse seems to have been the case. As Professor Shearer has recorded, 8 international law was not taught at all at Adelaide, or as a separate subject at Melbourne, in the period 1918-1932 — the crucial period of the evolution of Australia's separate personality, and an even more crucial period in modern international relations. The exception was Sydney, where a Challis Chair of International Law and Jurisprudence was established in 1920, to which A.H. Charteris was elected. Both Charteris and Coleman Phillipson of Adelaide (Professor of Law, 1920-1925) produced a considerable amount of writing on international law matters, 9 and K.H. Bailey (later Sir Kenneth Bailey), appointed professor at Melbourne in 1927, and professor of public law in 1930, was also to achieve a considerable international reputation as a government lawyer and diplomat. 0 But as Professor Shearer points out, their individual reputations do not seem to have coincided with any general increase of interest in the subject in Australia. 1 Although there are exceptions, the general outlook of the Australian legal profession at this time, and for several more decades, remained remarkably insular, with little concern for or knowledge of even North American developments, let alone developments elsewhere in the world outside the British Empire. The growth of expertise in international law was largely limited to the new Department of Foreign Affairs, and even then, as Professor Shearer suggests, the growth of specialisation was inhibited by the substantial influence of Kenneth Bailey as Commonwealth Solicitor General (1946-1964). Authoritative advice on international law matters was thus readily available, and although the Department of Foreign Affairs had its own Legal Adviser, Bailey's was the dominant voice.

2. THE SLOW GROWTH OF INTERNATIONAL LAW SPECIALISATION IN THEUNIVERSITIES: 1945 TO THE PRESENT

Although Australia played a significant role in international relations in the immediate post-war period (including some role in the drafting of the United Nations Charter, and the?oresidency, held by Dr Evatt in 1948-9 of the United Nations General Assembly23) this seems to have had no direct impact on international law research or teaching 'at home'. However, the period from


5

1945 to the early 1960s saw the beginnings of a very substantial change in legal education in Australia, and closely associated with it a growth of increased professionalisation and specialisation in international law studies, teaching and research. The two senior Australian international lawyers who have had a major impact on the literature of international law were establishing themselves during this period. Julius Stone was appointed Challis Professor of International Law and Jurispudence, in succession to Charteris, in 1942: he was to hold that Chair for thirty years. 4 D.P. O'Connell was appointed to a readership in law at the University of Adelaide, his first academic job, in 1953, after completing a doctorate at Cambridge and spending a short time in legal practice in New Zealand. He was to hold that chair for nearly twenty years, before being appointed to the Chichele Chair of International Law in the University of Oxford in 1972. It is worth noting that both Stone and O'Connell were born and educated outside Australia, Stone in the U.K., O'Connell in New Zealand and the U.K. Both came to Australia to take up senior university positions. Other non-Australian international law teachers and scholars spent shorter periods in Australia during the 1950s and 1960s, before going elsewhere: -these included Wolfgang Friedman, ' and alsoC.H. Alexander (Alexandrowicz). But Stone and O'Connell, who stayed in Australia for long periods of time and whose work, though never in any sense parochial or merely local in focus, acquired an Australian connotation, can be regarded as the first Australian international legal scholars, since Pitt Cobbett, to achieve an international reputation. It is fair to say that the "trade" was not all one way: Australian-trained lawyers who went on to make their mark on international law in North America included Edward McWhinney^’ and L.F.E. Goldie30. At this time also, Australian-born international lawyers whose subsequent careers were essentially Australian included J.G. Starke3* and Kevin Ryan.3^

During the 1960s Australian legal education changed rapidly and decisively. Whereas until the 1950s, law schools had consisted of a very small number of full-time teachers assisted by substantial amounts of parttime teaching from members of the legal profession, during the 1960s with the very substantial increase in the number of students seeking a legal education, and the increasing specialisation of Australian law, the structure and (to a lesser extent) the aims of Australian law schools changed significantly. Many new members of staff were recruited, new law schools were established, and the bulk of teaching came to be carried out by full-time university teachers.This process has continued, though with some consolidation in the face of economic stringency in the past decade.33 Accompanying these changes has been an increase in the range of subjects offered for the law degree, an increase in choice for students amongst those subjects, and a concomitant increase in specialisation in teaching particular subjects. This situation has carried with it both difficulties and challenges for international law as a discipline, which I will refer to later in this paper. It has certainly led to a substantial increase in the number of Australian legal scholars professing some substantial interest in international law or particular aspects of it. There has also been an expansion of postgraduate teaching in international law, most of it as part of coursework postgraduate Diplomas or Masters degrees, though this has tended to be confined to a few universities, including Sydney University and Monash University, but especially the Australian National University, which is the only Australian university with a specialist postgraduate course in international law (leading to a Diploma in International Law or a Masters in International Law).34


6

3 THE PRESENT SITUATION

At present, international law is offered in some form in each of the ten university law schools in Australia, as well as at the New South Wales Institute of Technology Law School. It is also offered in one of two other Australian universities which has a Legal Studies course, rather than a professional law course (La Trobe; the other Legal Studies course, at the University of Newcastle, does not include international law, having a predominantly commercial orientation). Details of the courses offered by the twelve institutions are set out as Appendix 1 to this paper. (It should be noted that courses in international trade law (with an emphasis on private and commercial relations), civil rights (with an emphasis on Australian as distinct from international human rights law) and conflicts of law are excluded from the list in Appendix 1.) It is noteworthy that these twelve institutions between them offer no fewer than 48 distinct courses, again reflecting the trend towards specialisation and diversification of curricula which has been a feature of Australian legal education in the last 15 years. But this phenomenon has other reasons, amongst them the enormous growth of the scope and content of international law since 1945, and the consequent difficulty of dealing with it in any comprehensive way in a single course.The courses listed in Appendix I may be classified as follows:

Classification Number of courses Comments

General InternationalLaw Courses

12 Offered by all institutions as a full or part- year subject.

Advanced InternationalLaw Courses

3 Adelaide; ANU; Sydney (extended undergraduate course, in fact concerned with international humanitarian law)

International organisations 5 ANU; Macquarie; (Monash (2); Queensland

Human Rights/HumanitarianLaw

8 Human Rights offered by Adelaide; ANU;La Trobe: Monash;NSWIT; NSW; Tasmania. International Humanitarian Law offered by NSW, and see comment re Sydney Advanced International Law Course.

Law of the Sea 4 ANU (2); Melbourne;Monash

Air and Space Law -International Transport Law

5 ANU (2); Monash;NSWIT; Sydney


c

7

International Economic Law 7

Other International Law 3

Other non-law 2

ANU (3); Monash (2); NSWIT; Sydney

ANU ("Enforcement of International Law"); La Trobe ("International & Comparative Environmental Law and Policy"); Monash ("Law of Treaties")

ANU (2) ("Principles of International Economics" and "International Politics", both required for Grad.Dip.Int.L./ M.Int.L.)

To some extent these classifications are misleading. Sydney's advanced international law course at the undergraduate level is essentially a course in humanitarian law. Queensland general international law course has a very substantial law of the sea component, equivalent to some of the separate semester courses in other institutions. The two non-law courses listed as part of the Australian National University's postgraduate requirements are included because they are a prerequisite for those specialist international law degrees. In all Universities it would be possible for students with an interest in international relations to take equivalent subjects in other Faculties, and a number do so as part of Law/Arts, or Law/Economics degrees.

Nonetheless the figures are remarkable, and very different from what would have been shown by a similar survey undertaken, say, in 1960, which would have revealed only 7 Australian law schools (one in each State, and the Australian National University), and only one general international law course in each. The change is apparently even more striking when the numbers of undergraduate and postgraduate courses are compared; of the courses listed in Appendix 1, 29 are specifically undergraduate courses, as many as 15 are specifically postgraduate courses (as part of the ANU Diploma or Masters courses, the Monash Diploma course, or subject Masters degrees in other universities), and 4 (all at the ANU) are available both to undergraduate and postgraduate students. In 1960, there were no postgraduate coursework degrees in law in Australian universities.

In another respect these statistics are also somewhat misleading. There is no denying the increased range of choice in international law and related courses now open to Australian students. But a number of the courses are not offered in any particular year (5 of the 33 undergraduate courses in 1984) and of those that are offered, a number have very small enrolments. Outside the major centres of Sydney, Melbourne and Canberra, only relatively small numbers of students undertake postgraduate coursework degrees. Moreover many of the undergraduate courses are offered over less than the full academic year (which consists, depending on the particular university, of two semesters or three terms). In 1960, almost all law school courses would have been full year courses. The overall picture is one of diversification and increase in choice, but with the risk of fragmentation, leading to the loss of coherence that a full year international law course can achieve.


8

As I have suggested, one reason for the diversification of courses is the growth of specialisation in international law itself; this is especially evident in areas such as human rights, international economic law and to a lesser extent, the law of the sea and international organisations. But another major reason for the diversification has been the general trend in the development of legal education. The increased range of general law subjects, and the pressure on students to do subjects which are perceived to be particularly useful for professional purposes (especially the commercial law and taxation subjects) has been one factor leading to the offering of smaller elective courses which students can afford to take. Developments in areas of local interest but with international law implications have also led to the offering of subjects in which students do aspects of international law rather than general international law: the proliferation of human rights andhumanitarian law courses is the best example of this. It is not normally a prerequisite to the study of these subjects that the students have done the general international law course.

In addition to the postgraduate coursework degrees, all Australian universities offer the opportunity to students to undertake Masters or Doctoral degrees by thesis, taking from two to five years. 6 A number of international law theses have been done this way, although Australian law graduates wishing to undertake postgraduate work, especially thesis work, will often attempt to do so overseas, either in the United Kingdom or North America or (less commonly) Western Europe.

Obviously, each Australian law school which offers one or more international law courses has to provide appropriate teachers for those courses, and in fact each of the institutions listed in Appendix 1 has on its staff between 1 and 5 persons professing some level of specialisation in international law. Although such classifications are necessarily imprecise, it is possible to count slightly more than 30 persons in this category, though not all of these would class themselves as primarily international law specialists. Nonetheless a survey of persons currently teaching international law and related courses in Australian universities is of some interest. Of those who would regard themselves as primarily international lawyers, there are four professors, two of whom (D.H.N. Johnson of Sydney, D.W. Greig of the Australian National University) were English trained but are now naturalised Australians, two of whom did their undergraduate degrees at Adelaide, and went on to do postgraduate work in England or North America (the present writer, at Adelaide; I.A. Shearer of University of N.S.W.).3' This comparative diversity of origins is also reflected in a survey of the larger group of international law teachers in Australian Universities, which includes lawyers trained in New Zealand, England, Western Europe, Ceylon, India and possibly elsewhere.

On the other hand, there is very little international law teaching or international law-related research carried out outside the Law Departments in Australia, a situation which contrasts markedly with that in many other countries in the region (e.g. India, Japan, Republic of Korea). Only a few non-lawyers have made a significant contribution to the field in Australia:J.R.V. Prescott, a political geographer from Melbourne University, is one of the exceptions.


9

4. KEY EMPHASES IN TEACHING AND MAJOR TRENDS IN RESEARCH

(1) General observations

This outline of the development of international law teaching in Australia already says a good deal about the key emphases in teaching. So far as research is concerned, the basic emphasis of the "Australian" international lawyers, and this is as true of those lawyers trained in Australia as of those (such as Stone and O'Connell) who came to Australia after their legal education was completed, and with some at least with the basic groundwork done, has been on making a general contribution to the literature of international law, for the most part without specifically or identifiably Australian elements or even emphases. This has certainly been the case with the older generation of international lawyers such as Stone (whose fields of interest where primarily international dispute settlement, the use of force between states, and the status of Palestine and Israel), O'Connell (who was a general international lawyer but whose specific interests included state succession, the law of the sea, and problems of maritime zones in federal states) and J.G. Starke. It is, I believe, equally true of the present generation of Australian international lawyers, whose work will be referred to as appropriate in the rest of this Paper.

(2) Themes of special interest to Australia

Nonetheless, there has, especially in more recent times, been a degree of focussing of interests and research on subjects of particular concern to Australia or to what is loosely described as the Australian and Asian-Pacific "region". Thus important work has been done on a range of topics such as:

Questions of statehood and state succession, including issues relating to the emergence of Australia as a state. 9

The status of Antarctica, and of Australian claims to Antarctica.^®

The law of the.sea (with some emphasis upon maritime resources zones and fisheries. 1

International Law and federalism in its various aspects (constitutional power, treaty making and treaty implementation, and maritime zones). 2

Decolonization, in particular as colonial territories. 3

it related to Australia's former

Nuclear non-proliferation, which has been a particularly active subject of debate in Australia in the last decade. 4

Extra-territoriality, in particular in the context of extensive United States claims for extra-territorial jurisdiction in antitrust matters.

Human rights, especially the debate over Australia's ratification of the International Covenant on Civil and Political Rights of 1966, and over the domestic implementation of the Covenant.


10

. The law of foreign state or sovereign immunity, both at common law and with a view to possible Australian legislation on the topic.

. The question of indigenous or minority rights in international law,• in particular having regard to Aboriginal demands for change.

. The relationship between Australian law and international law, both general international law and treaties.

. The status and treatment of refugees.

However, it would be wrong to suggest that the research and writing detailed under each of these heads (and the list is not exhaustive) reflects any single Australian position or perception on these issues. Certainly, the work can be identified as being broadly within the "Western" tradition of international law scholarship, though the techniques and, in theory at least, the material of international law are common to the discipline and are not, or should not be, particular to specific national, regional or cultural traditions. The basic point remains that the writings listed above are on the whole Australian only in the focus of their concerns, and then only partly so. For example, there has been both support for, and opposition to, the validity of Australian claims to Antarctica, as well as some informed scepticism. A range of views has been taken on the relevance of international law to indigenous people such as the Aborigines. Australian and international lawyers have both supported and criticised the broad interpretation of the external affairs power in the context of,.implementation of treaties, recently adopted by the High Court of Australia. 4 There has been support both for an international convention on foreign state immunity (presumably based on the work of the International Law Commission), for further common law development, and for Australian legislation. Similar disagreements or divergences of approach could be pointed to in other areas.

In short, it is doubtful whether there are "trends" in international law research in Australia, if this is intended to mean the emergence of a consensus of opinion on a range of issues, as distinct from a tendency to focus on a range of issues. And, given the wide-ranging interests of different international lawyers in Australia, and the tendency towards specialisation in international law teaching already described, even the notion of a focus of interest in international law research in Australian might seem an overstatement.

5. RESPONSES TO NEW CHALLENGES

(1) Various Challenges, Various Responses

As this conclusion would suggest, it is not the function, and it certainly has not been the practice, of international law teachers in Australian universities to respond collectively to new challenges facing Australia as a society, internally or in international relations. Of course, responses there must be, but they have been mostly mediated through the individual research and other work of particular scholars, as is practically inevitable in an individualistic system such as exists in Australia. Even where there has been some uniformity in response, as Appendix 1 suggests there


r'

11

has been in the area of curriculum development and the provision of courses, this has been more by way of a similar response to similar conditions and pressures facing universities than the result of any ordered or collective decision.

On the other hand there can be no doubt that Australia as a society is responding in a variety of ways to perceived developments and pressures at the international level, as well as employing international developments in various ways for reasons of its own. This is true, for example, in areas such as human rights protection,56 law reform,57 and treaty making.58 Moreover there has been a considerable increase in the level of Australian participation in international relations in a variety of forums, both general and regional, as an expression of Australian concerns on particular issues and for the peace and stability of the region and the world. This can be seen in the increased Australian involvement in the acceptance of refugees, especially from South-East Asia but also from elsewhere.59 It can be seen in Australian involvement in the nuclear non-proliferation debate, a matter of particular concern given the export of some of Australia's very large reserves of uranium. 0 One area in which this response has been most marked has been that of human rights: in the past ten years there have been two major pieces ofFederal legislation, based on international conventions, for the protection of human rights. These are the Racial Discrimination Act 1975, based upon the International Convention..for the Elimination of all Forms of Racial Discrimination of 1965, 1 and the Sex Discrimination Act 1983, based substantially upon the Stockholm Convention for the Elimination of All Forms of Discrimination against Women of 1979.62 Moreover there has been a continuing debate about the proposal for an Australian Bill of Rights based (for constitutional reasons) upon the International Convenant on Civil and Political Rights of 1966. The Australian Labor Party, which was in Government at the Federal level between 1972 and 1975, and has been again since 1983, has supported the introduction of an enforceable Bill of Rights in some form. Earlier versions of such a Bill of Rights were rejected by the Senate, the upper house of the Australian Parliament, in 1973 and 1975, 8 and somewhat different proposals for a Bill of Rights are again under consideration. On the other hand the Liberal-National Country Party Coalition which has been in Government in Australia for most of the last thirty years, has.historically opposed an enforceable Bill of Rights on a variety of grounds. 4 Their alternative was a Human Rights Commission, with power to investigate and report upon alleged violation of human rights as enunciated in the International Covenant on Civil and Political Rights and other instruments, but with no enforcement powers. 5 The debate is a continuing one, but on any view the impact of international law in the area of protection of human rights in Australia has been significant. This is only one among a number of areas in which international developments are increasingly likely to affect Australian law, and to be at the centre of debates about policy and public affairs. Plainly enough, in informing and educating the public, and in other ways, the role of international lawyers in Australia in these areas is an important one. It is perhaps the principal "new challenge", though the response, so far at least, remains decentralised and diffuse.

(2) Participation in International Law Activities

In parallel with the Commonwealth Government's increased involvement, in the last 15 years, in international affairs, is the potential for increased


12

involvement on the part of individual international lawyers in international activity of a variety of kinds. The record of individual involvement, through participation and election, is a good one, though so far it falls short of the highest aspirations. There has been only one Australian judge on the International Court of Justice, Sir Percy Spender, a former Cabinet Minister and Minister for Foreign Affairs, who as President of the International Court in the South West Africa Cases (Second Phase)66 cast the fateful casting vote which resulted in the Court declaring the applications in that case inadmissible. The reasoning of the "majority" decision was more the product of Judge Fitzmaurice' merciless analysis than it was of President Spender's vote, but President Spender's vote it was that carried the day. The decision was been criticised, and much of the substance of what was denied by the Court in 1966 was regained, over Judge Fitzmaurice' strident dissent, in the Namibia Opinion in 1971. The bitter reaction on the part of some third world countries against the Court's decision has been said to be one factor for Sir Kenneth Bailey not achieving election to the International Court in succession to Sir Percy Spender.

Australia has had no representative on the International Law Commission, and no very distinguished record of elected experts to United Nations expert committees. Australia has engaged in international litigation on a few occasions, most notably before the International Court of Justice in the Nuclear Tests case against France, the jurisdictional strategy for which was devised by Professor O'Connell, but the result of which, from an Australian perspective, was perhaps only a draw. On the other hand at the individual and private level the record is considerably better. Perhaps the most significant is the impact individual scholars have had through their writing and other professional work. No younger international lawyer has yet achieved the distinction of Professors Stone and O'Connell in the field, but there have been significant contributions in particular areas, and the general texts by O'Connell, Starke and Greig have been widely used. There have been only three Australians elected to the Institut de Droit International, Bailey, Stone and O'Connell; with Stone's resignation from the Institut, there is now no Australian member. Two Australian international lawyers have received the Certificate of Merit of the American Society of International Law for particular works (Stone, 1956; Crawford, 1981). A number of Australians have been honoured by invitations to deliver lectures on particular topics at the Hague Academy of International Law, and Australian lawyers have been prominent in the sessions conducted by the San Remo International Institute of Humanitarian Law. At the local level the Australian Year Book of International Law is now well established: it was first edited by J.G.Starke, and is now edited from Canberra by Professor D.W. Greig. Most Australian international lawyers are also members of the International Law Association, the Australian branch of which (founded in 1959) is the second largest of the branches of that Association. Until relatively recently, the principal activity in which the Branch was involved was the biennial meetings of the Association, and work on committees on particular projects in relation to those meetings. However, the Australian Branch has broadened the scope of its activities in recent years, both through holding seminars on particular topics, through the publication of a series of short monographs entitled Martin Place Papers. and through the publication on a quarterly basis of a newsletter entitled Australian International Law News, which apart from local news of interest in the international law field, carries recent documents and other information of interest to members of the association. Finally, in


13

recent years students from Australian law schools have been actively engaged in the Jessup International Law Moot, with considerable success. Eight Australian teams have now travelled to the United States to participate in the final round of the Jessup Moot (Adelaide (4), Melbourne (2), ANU and NSW one each). These teams have competed with considerable success, and two of them have reached the grand final of the competition, Adelaide losing in 1979, and the Australian National University winning in 1981. Participation in the Jessup Competition has proved a splendid opportunity for Australian law students, with teams from a majority of Australian law schools now involved on a regular basis.75

6. PROBLEMS OF THE PROFESSION

In an important sense, Australian international lawyers do not form part of a single “profession". Some of them, of course, are civil servants working within the Department of Foreign Affairs or the Attorney-General's Department as career diplomats or departmental officials. Others are law teachers in universities or similar institutions. A few work for Government agencies or as members of private legal firms. In each case, and irrespective of the orientation of the individual lawyer towards international law, it can be argued that the profession to which he or she belongs is at least broader if not different. Some officials in the Department of Foreign Affairs have both training and a considerable interest in international law: indeed, apart fromtheir contribution to the work of the Department of Foreign Affairs through attendance at diplomatic conferences etc., a number have made valuable contributions to the literature of international law.75 But the Australian Department of Foreign Affairs (and in this respect it may well be no different than any of its counterparts in other countries) regards its primary function as representing Australia's interests in the international arena, as these are perceived or determined from time to time. Moreover, promotion within the Department requires officers to engage in a variety of functions, including ordinary diplomatic work, the administration of sections or divisions, and so on. The emphasis upon a range of generalist skills and experience is inimical to specialisation. Conflicting demands and loyalties also exist for other members of the international law "profession". For example, university teachers, though they may regard international law as their primary specialisation, nonetheless work in Departments of Law in which the teaching and administrative demands are great, and which cover a very wide range of subjects. There is considerable pressure upon international law teachers to teach other areas of law in addition, and (except at the most senior levels) these pressures are supported by natural desires for promotion within the Department and University. Indeed there are few international lawyers in Australia who do not spend significant amounts of their time teaching other subjects (quite often other public law subjects, such as constitutional and administrative law, but quite often subjects which may be entirely diverse, such as commercial law, the law of torts etc.). At senior levels of the law teaching profession, there may be a greater facility to specialise, but there are also greater demands in terms of university and departmental administration. Most law schools have only two or three professors of law: in such situations, the "other" responsibilities are likely to be great, and the teacher's own sense of responsibility may require the teaching of large compulsory subjects, notwithstanding a personal preference for international law teaching and research.


c

14

There is, therefore, probably not in any clear or obvious way an international law "profession" in Australia. But this does not mean that international lawyers have no community of interest, or that their concerns and problems cannot be addressed in some collective way. In fact there is a considerable collegiality amongst international lawyers, especially in the universities, in Australia, which is supported by annual meetings at the time of the Australian final of the Jessup Moot Competition (regularly held in Canberra in February), through meetings of an international law interest group at annual meetings of the Australasian Universities Law Schools Association in August, and in other ways.

There are, I think, three main problems facing international lawyers in Australia, at least those who are also law teachers, which present obstacles to the achievement of the highest professional standards, and the highest professional goals, in the field. These are, first, the comparative absence of international legal work outside governmental circles in Australia; secondly, the remoteness of Australia and consequent difficulties of access to materials; and thirdly, the problems of specialisation in the university environment.'' I shall say something briefly about each of these.

Australia is a relatively remote and very large country of only 15 million people. Although it engages in a substantial amount of international trade, it is not itself, at least yet, a centre for international banking, finance or other international activity. There is only one international organisation based in Australia, an offshoot of the Antarctic Treaty concerned with the marine environment. Australia is not a place at which international conferences are regularly held, or which is regularly visited by Heads of State, Ministers of Foreign Affairs or other senior personnel of other countries from outside the region. As a consequence, there is relatively little work directly in the international law area in Australia compared with the situation, for example, in Western Europe or North America. Most of the work that is done is done by governments or government agencies. It is therefore difficult for international lawyers in the universities to accumulate much experience in the day to day issues of international law, or to acquire a feeling for the practice of international law. This problem is made worse by the fact that traditionally the Department of Foreign Affairs has been, for whatever reason, resistant to involving international lawyers from outside the Department in its work. It is perhaps significant that, as far as the present writer is aware, neither Julius Stone nor D.P. O'Connell were substantially used as advisers by the Department of Foreign Affairs, during what were otherwise very successful international law careers. (The principal exception, in O'Connell's case, was his involvement as counsel in the Nuclear Tests Case, although it appears that the initiative for that case came from outside the Department.) There has in the past been no tradition of Department of Foreign Affairs support for leading Australian international law scholars, in the context of membership of bodies such as the International Law Commission, a situation which contrasts markedly with the British record in this respect. On the other hand, it may well be that this situation - which is perhaps more a matter of impression than of any deliberate or considered policy - is undergoing change. There have certainly been movements from Government Legal Service to the universities and vice versa: the present Legal Adviser to the Department of Foreign Affairs is aformer university law teacher, 9 and there is now a facility for selected academics to spend a year in residence within the Department (a facility not


*15

limited to international lawyers but certainly available to them). Moreover the barriers which used to exist between the Commonwealth Public Service and the universities or private enterprise are themselves becoming less formidable. A university professor was, for example, recently appointed as Secretary (that is, permanent head) of the Department of Foreign Affairs, and similar outside appointments have been made to some other Commonwealth Departments. Moreover, there are good personal relations between members of the Legal and Consular Division of the Department of Foreign Affairs and international lawyers in the universities, and these relations have been strengthened and supported by invitations to university teachers to lecture to the Department's Foreign Service Training Course, and by jointly organised seminars held from time to time.

A second difficulty, which adds considerably to the problems of remoteness outlined in the previous paragraph, is simply the product of Australia's geopolitical position. Notwithstanding modern methods of communication, Australia remains remote, and it can be difficult to obtain the full range of information, on an up-to-date basis, as to what is happening in international affairs. Moreover, much helpful information is obtained not through formal sources but through contact and discussion with colleagues In Australia this is difficult enough even between individual universities, and more difficult still on an international basis. Books and periodicals, unless the extra expense of airmail is incurred, take three to four months to arrive. Attendance at seminars or conferences overseas is expensive, and since the timing of these conferences is frequently planned to fit in with the northern academic year (September/October to June) rather than the southern academic year (March to November) it can also clash with university commitments. Again, however, it is important not to overstate these difficulties. Compared with the difficulties which existed, for example, in 1942 or 1953, they seem slight. Most Australian law schools have good law libraries and a number have good international law collections (the informal ranking of international law collections at present appears to be, first, Adelaide (the D.P. O'Connell collection), second, the Australian National University, and third, the University of N.S.W. (which includes the Jenks collection)). Moreover, there are at least some facilities and funds for Australian legal scholars to travel on both short and longer visits overseas, and there is an increasing flow of overseas visitors to Australia. The problems caused by comparative isolation have not disappeared but they have been substantially reduced. 0

The third problem has already been referred to: the problem ofmaintaining an international law specialisation against the demands of university law schools for teaching a range of subjects, for involvement in administration, and so on. The problem is all the greater for the character of modern international law, an entire legal system which in the last thirty years has grown at a phenomenal rate, and the literature and materials of which, taken alone, are probably greater than those of any single municipal legal system, including even the common law systems. There is in Australia only one Chair of.Law specifically devoted to international law: the ChallisChair at Sydney. 1 Elsewhere university promotion tends to depend upon being good at more than a single subject, no matter how large or important it may be.


16

Despite these continuing difficulties, the fact remains that good work is being done by Australian international lawyers, both within government agencies and in the universities. If ultimately the "top jobs" in international law from the point of view of scholarship or research would require resettlement in North America or Western Europe, perhaps this is only a reflection of the economic and political realities. And the demands and needs of Australia, as an increasingly multicultural society in its part of the world, demand their own attention and analysis, attention and analysis which they are increasingly receiving.

7. AGENDA FOR THE FUTURE

For reasons which should have already become clear, there is I think no agreed agenda, and probably could not be. Australian international legal scholars would agree on the need for a continuing general contribution to the literature of international law, a contribution which has, as the bibliography for this paper demonstrates, already been a considerable one. One might suggest that there will be emphases over the next ten years on particular areas, such as those already outlined in this paper. One might predict these emphases to occur in three broad fields: in ascending order of importance,the relationships between international law and municipal law (in this case Australian law), issues of international economic and resources law, and questions of international peace and security (including in particular nuclear non-proliferation and disarmament). But it is a function of a divided but interdependent world that these three questions could fairly be regarded as (what ought to be) the top of the world's agenda for itself. Lacking a distinctive national tradition, it is the opportunity of Australian international lawyers to contribute to these general, and crucial, issues.

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FOOTNOTES

* LL.B.,8.A.(Adelaide), D.Phil.(Oxon), Barrister and Solicitor of the HighCourt of Australia; Professor of Law, the University of Adelaide; Commissioner, Australian Law Reform Commission.

1. See K. Maddock, The Australian Aborigines (Pelican, 2nd edn, 1982); G. Blainey, Triumph of the Nomads (Sun Books, rev.edn, 1983).

2 For a comparison see E. Evatt, 'The Acquisition of Territory in Australia and New Zealand1, in H. Alexandowicz (ed), Grotius Society Papers 1968, Studies in the History of the Law of Nations (The Hague, 1970) 16. '

3 Cooper v Stuart (1889) 14 App Cas 286,291; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Blackburn J); Coe v Commonwealth of Australia (1979) 24 ALR 118.

4 jl v Jack Congo Murrell (1836) 1 Legge 72. See A.C. Castles, An Australian Legal History (Law Book Co., Sydney, 1982) 526-31.

5 House of Representatives, Pari Debs (8 December 1983) 3485. Theresolution has not been further proceeded with. See also Commonwealth of Australia, Senate Standing Committee on Constitutional and Legal Affairs, Two Hundred Years Later ... The Feasibility of a Compact or 'Makarrata' between the Commonwealth and Aboriginal People (Canberra, AGPS, 1983) esp.35-48. For a somewhat different view see J. Hookey, 'Settlement and sovereignty' in P. Hanks & B. Keon-Cohen (eds) Aborigines and the Law(George Allen & Unwin, Sydney, 1984) 1.

6. See e.g. the Australian works cited below, n.48.

7 Castles, 97-8, 111-12, 132-9, 178-9. cf. Dugan v Mirror Newspapers Ltd(1978) 22 ALR 439.

8. Castles, chs 1,15,17.

9 Here as elsewhere in this Paper I rely heavily on I.A. Shearer, 'The Teaching of International Law in Australian Law Schools' (1983) 9 Adelaide LR 61.

10. id, 63.

11. id, 65,69-70.

12. Australia is a party to both the Statute of the Hague Conference onPrivate International Law, 1955: Aust TS 1973 No.29, and the Statute ofthe International Institute for the Unification of Private Law, 1940 (as amended): Aust TS 1973 No.10. There is useful discussion ofdevelopments in these and related fields at the International Trade Law Seminars convened annually by the Commonwealth Attorney-General's Department: see e.g. Tenth International Trade Law Seminar (Canberra,18-19 June 1983) (AGPS,'1983). '


13 See e.g. J. Crawford & W.R. Edeson, 'International Law and AustralianLaw' in K.W. Ryan (ed.) International Law in Australia (Law Book Co., Sydney, 2nd edn, 1984) 71.

14. See Shearer, 66-7 for details of Pitt Cobbett's career.

15. O.P. O'Connell, State Succession in Municipal Law and International(Cambridge UP, 1967) H 16-47; O.P. O'Connel1, 'the Evolution oF Australia's International Personality', in D.P. O'Connell (ed)International Law in Australia (Sydney, Law Book Co., 1966).

16 See J. Crawford, The Creation of States in International Law (Oxford,Clarendon Press, 1979) 238-46.

17 ibid; O'Connell, 'The Evolution of Australia's InternationalPersonality' (above n.15); O.P. O'Connell & J. Crawford, 'The Evolution of Australia's International Personality', in K.W. Ryan (ed)International Law in Australia (2nd edn, Law Book Co. Sydney, 1984) 1;M.H.M. Kidwai, 'International Personality and the British Dominions: Evolution and Accomplishment' (1976) 9 UQLJ 76.

18. Shearer, 69-70.

19 id, 70.

20. See id, 71-2, 75 for Bailey's career. After the 1930s he did not write much; but see e.g. K.H. Bailey, 'Australia and the Geneva Conventions on the Law of the Sea' in D.P. O'Connell (ed) International Law in Austtalia (Sydney, Law Book Co., 1966) 228. Bailey's important role in the Geneva Conference on the Law of the Sea in 1958 was repeated by Ambassader K.G Brennan in the drafting of the Montego Bay Convention: see K.G. Brennan, 'Australia and the Law of the Sea - The International Sea-bed' in K.W. Ryan (ed) International Law in Australia (2nd edn. Law Book Co.. Sydney. 1984) 419.

21 Shearer, 72-3. An Australian and New Zealand Society of International Law was established in 1933, but produced only one volume of Proceedings before disappearing: see (1935) 1 Proceedings of the Australian and NewZealand Society of International Law.

22. Shearer, 75.

23. H.V. Evatt (1894-1965) was, at different times, a judge of the High Court of Australia, Attorney-General and Minister for Foreign Affairs, and Federal Opposition Leader. See K. Tennant, Evatt, Politics and Justice (Angus & Robertson, Sydney, 1970). For his writings on international law and relations see e.g. H.V. Evatt, The United Nations (OUP, Melbourne, 1948); H.V. Evatt, The Task of Nations (Greenwood Press, Westport, 1972 (reprint of 1949 edn)).

24. For a survey of Stone's career see Shearer, 76; and see also A R Blackshield (ed), Legal Change. Essays in Honour of Julius Stone (Butterworths, Sydney, 1983). Stone's successor in the Chaltis Chair is Professor D.H.N. Johnson, formerly Professor of International Law and Air


m ft

Law in the University of London. For his views on some of the issues dealt with here see D.H.N. Johnson, 'Lecture on the Study of International Law’ (1980) 3 Soochow LR 1.

•inCM Shearer, 76-7.

26. He died (in part from overwork) in 1979: see I.A. Shearer, 'Obituary:Professor D.P. O'Connell* (1981) 7 Aust YBIL xxiii. For review of his international law work see J. Crawford, 'The Contribution of ProfessorD.P. O'Connell to the Discipline of International Law' (1980) 51 BYIL 1.

27 Shearer (1983) 75.

•O

OCM Alexandrowicz was an Associate Professor in International Organisations

at Sydney University from 1961 to 1968: see e.g. C.H. Alexandrowicz, TheLaw-Making Functions of the Specialised Agencies of the United Nations(Australian Institute of International Affairs and Angus & Robertson,Sydney, 1973); and C.H. Alexandrowicz, 'Australia and GATT', in D.P.O'Connell (ed) International Law in Australia (Law Book Co., Sydney,1966) 87.

29 see e.g. E. McWhinney, 'On the Vocation of our Age for Lawmaking: Constitutional and International Codification in an Era of Transition andRapid Change' in A.R. Blackshield (ed) Legal Change. Essays in Honour ofJulius Stone (Butterworths, Sydney, 1983) 241. McWhinney was a Sydney graduate whose subsequent career has been entirely North American.

30. See e.g. L.F.E. Goldie, 'International "Confidentiality": StateSovereignty and The Problem of Consent' in A.R. Blackshield (ed) LegalChange. Essays in Honour of Julius Stone (Butterworths, Sydney, 1983)316. Goldie, a graduate of the University of Western Australia, worked in government and at the ANU until 1959; since then he has taught at various United States Law Schools.

31. See Shearer (1983) 75-6, and see esp. J.G. Starke, An Introduction to International Law (8th edn, Butterworths, 1977); J.G. Starke, Studies in International Law (Butterworths, 1965); J.G. Starke, 'Australia and the International Protection of Human Rights' in K.W. Ryan (ed) InternationalLaw in Australia (Sydney, Law Book Co., 1984) 136. Starke is Editor of the Australian Law Journal, maintaining in that Journal a monthly segment 'International Legal Notes'.

32. K.W. Ryan was Garrick Professor of Law in the University of Queensland until his appointment to the Queensland Supreme Court in 1984. His wide- ranging interests included both public international law and international trade law. See e.g. K.W. Ryan, 'Australia and International Trade Law' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., 1984) 277.

33. See generally Australasian Universities Law Schools Association, ReportNo.2, Legal Education in Australian Universities (Butterworths, 1977).

34. For details see Appendix 1. The new courses are one of a number of innovations brought about by Professor D.W. Greig, Professor of Law at


ANU since 1974. See e.g. D.W. Greig, International Law (2nd edn, Butterworths, 1976) and the works cited below. Monash University has a specialist Diploma in International and Comparative Law: for details seeAppendix 1.

35 For analogous developments in Canada see R.St.J. Macdonald, 'An Historical Introduction to the Teaching of International Law in Canada Part III' (1976) 14 Can YBIL 224,253-6.

36. See Appendix 1, n.3.

37 See Crawford (above n.16): I.A. Shearer, Extradition in InternationalLaw (Manchester UP, 1971). Other Australian law professors with someinterest in international law include R.D. Lumb (Queensland), A.C Castles (Adelaide), C.G. Weeramantry (Monash).

38. See e.g. J.R.V. Prescott, Map of Mainland Asia by Treaty (Melbourne UP, Melbourne, 1975). There are also a number of international lawyers not directly involved either in University work or in the Foreign Affairs or Attorney-General's Departments: e.g. Dr. R.P. Schaffer, Dr. K. Suter.

39 See the works^'cited above, nn.16-17.

40. See especially F.M. Auburn, Antarctic Law and Politics (Hurst & Co.,London, 1982). cf. also A.C. Castles, 'The International Status of the Australian Antarctic Territory' in D.P. O'Connell (ed) International Law in Australia (Law Book Co., Sydney, 1966) 341.

41. See esp. D.P. O'Connell, The International Law of the Sea (ed I A.Shearer) (Oxford, Clarendon Press, vol.l (1982) vol.2 (1984)). See alsoD.P. O'Connell, 'The Juridical Nature of the Territorial Sea' (1971) 45 BYIL 303. On issues of immediate concern to Australia see Brennan (above n.20); R.D. Lumb, 'Australian Coastal Jurisdiction' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., 1984) 370; M. Landale & H. Burmester, 'Australia and the Law of the Sea - Off Shore Jurisdiction' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., Sydney, 1984) 390; H. Burmester, 'Australia and the Law of the Sea - The Protection and Preservation of the Marine Environment' inK.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., 1984) 439; K.W. Ryan & M.W. White, 'The Torres Strait Treaty' (1981) 7 Aust YBIL 87; H. Burmester, 'The Torres Strait Treaty: Ocean BoundaryDelimitation by Agreement' (1982) 76 AJIL 321.

42. On the Australian constitutional implications see G. Sawer, 'Australian Constitutional Law in Relation to International Relations and International Law' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., 1984) 35; H.B. Connell, 'International Agreements and the Australian Treaty Power' (1968-69) 4 Aust. YBIL 83; L. Zines, The High Court and the Constitution (Butterworths, Sydney, 1981) ch.13. On the role of the States see H. Burmester, 'The Australian States and Participation in the Foreign Policy Process' (1978) 9 FLR 257.

43. See A.C. Castles, 'International Law and Australia's Overseas Territories' in D P. O'Connell (ed) International Law in Australia (Law


Book Co., Sydney, 1966) 292; Commonwealth of Australia, Senate Standing Committee on Foreign Affairs and Defence, United Nations Involvement with Australian Territories (AGPS, 1975); Crawford (above n.16) chs.13-14.

44. e.g. D.W. Greig, 'The interpretation of treaties and Article IV.2 of the Nuclear Non-Proliferation Treaty' (1978) 6 Aust. YBIL 77. See also Commonwealth of Australia, Ranger Uranium Environmental Inquiry, First Report (AGPS, 1976) chs.12-13.

45 e.g. M. Sornarajah, 'The Extraterritorial Enforcement of U.S. AntitrustLaws: Conflict and Compromise' (1982) 31 ICLQ 127.

46 See e.g. G.D. Evans, 'An Australian Bill of Rights' (1973) 45 Aust.Q 4.G. Triggs, 'Australia's Ratification of the International Covenant on Civil and Political Rights: Endorsement or Repudiation?' (1982) 31 ICLQ278. For a recent statement of Commonwealth policy see G. Evans, 'Human Rights and International Law' (1984) Aust. ILNews 133.

47 G. Triggs, 'Restrictive Sovereign Immunity: The State as InternationalTrader* (1979) 53 ALJ 296; D.H.N. Johnson, 'The puzzle of sovereign immunity' (1978) 6 Aust. YBIL 1; P. Sutherland, 'Recent Statutory Developments in the Law of Foreign Sovereign Immunity' (1981) 7 Aust. YBIL 27; J.R. Crawford, 'Execution of Judgments and Foreign Sovereign Immunity' (1981) 75 AJIL 820; J.R. Crawford, 'A Foreign State Immunities Act for Australia?' (1983) 8 Aust. YBIL 71; J. Crawford, 'International Law and Foreign Sovereigns: Distinguishing Immune Transactions' (1983)54 BYIL 75; M. Sornarajah, 'Problems in Applying the Restrictive Theory of Sovereign Immunity' (1982) 31 ICLQ 66; G. Triggs, 'An International Convention on Sovereign Immunity? Some Problems in Application of the Restrictive Rule' (1982) 9 Monash ULR 74; Australian Law Reform Commission, Report 24, Foreign State Immunity (1984).

48. See E.G. Whitlam, 'Australia's International Obligations on Aborigines' (1981) 53 Aust. Q 433; G. Nettheim, 'Justice and IndigenousMinorities: A New Province for International and National Law', in A.R.Blackshield (ed) Legal Change, Essays in Honour of Julius Stone (Butterworths, Sydney, 1983) 251; GT Nettheim, 'The relevance oF international law' in P. Hanks & B. Keon-Cohen (eds) Aborigines and the Law (George Allen & Unwin, Sydney, 1984) 50; Australian Law Reform Commission, Aboriginal Customary Law Research Paper 10, 'Separate Institutions and Rules for Aboriginal Peoples - International Prescriptions and Proscriptions' (1982) and see the works cited above n.5.

49 For general survey see Crawford & Edeson (above n.13). See also D.P. O'Connell, 'The Relationship between International Law and Municipal Law' (1960) 48 Georgetown LJ 431; I. Tammelo, 'Relations between theInternational Legal Order and the Municipal Legal Orders - A"Perspectivist" View' (1967) 3 Aust. YBIL 211; J. Crawford, 'TheInternational Law Standard in the Statutes of Australia and the United Kingdom' (1979) 73 AJIL 628; J. Crawford, 'General International Law and the Common Law' (1982) 76 PASIL; W.R. Edeson, 'Conclusive ExecutiveCertificates in Australian Law' (1981) 7 Aust. YBIL 1. cf. alsoR.P.Schaffer, 'The Inter-Relationship between Public International Law


* .*

and the Law of South Africa: An Overview' (1983) 32 ICLQ 177.

50. e.g. O.H.N. Johnson, 'Refugees, Departees and Illegal Immigrants' (1980) 9 Sydney LR 11; R.P. Schaffer, 'South-East Asian Refugees - the Australian Experience' (1981) 7 Aust. YBIL 200; O.W. Greig, 'The Protection of Refugees and Customary International Law' (1983) 8 Aust. YBIL 108; J.P.L. Fonteyne, 'Burden-Sharing: an Analysis of the Natureand Function of International Solidarity in Cases of Mass Influx of Refugees' (1983) 8 Aust. YBIL 162; G.J.L. Coles, 'Temporary Refuge and the Large Scale Influx of Refugees' (1983) 8 Aust. YBIL 189.

51 See the works cited above n.40.

52 See the works cited above n.48.

53 Constitution s.51(xxix). See the works cited above n.42.

54 Koowarta v Bjelke-Petersen (1982) 39 ALR 417; Commonwealth v Tasmania (1983) 46 ALR 625. On the international law implications of the latter case see also M. Sornarajah, 'International Law and the South West Dam Case' in M. Sornarajah (ed) The South West Dam dispute: The legal and political issues (University of Tasmania, 1983) 23.

55. See above n.47.

56. See below nn.61-65.

57. The Law Reform Commission Act 1973 (Cth) s.7 requires the Commission in its work to have regard to the terms of the International Covenant on Civil and Political Rights 1966. A number of the Commission's projects also have international implications outside the human rights field: e.g. foreign state immunity (see above n.47), admiralty jurisdiction.

58. On Australian treaty practice see N.O. Campbell, 'Australian TreatyPractice and Procedure' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., 1984) 53. The volume of Australian treaty-making has substantially increasd in the last 15 years, as attested by the Cumulative Supplement to the Australian Treaty List (Aust. TS 1971 No.l): mimeo, Dept, of Foreign Affairs, Canberra, 1983.

59 See above n.50.

60. See above n.44.

61 Aust. TS 1975 No.40. The constitutionality of the Act was upheld by the High Court in Koowarta v Bjelke-Petersen (1982) 39 ALR 417 under the Convention in conjunction with the external affairs power (s.51(xxix)).

62. Aust. TS 1983 No.9. The Act is based in part upon the external affairs power and the Convention, in part on other powers.

63. e.g. Human Rights Bill 1975 (Cth). See above n.46.

64. For a lucid expression of this view see R.G. Menzies, Central Power in the Australian Commonwealth (Cassell, London, 1967) 49-55.

65. Human Rights Commission Act 1981 (Cth).


66. ICJ Rep. 1966 p.6.

67. ICJ Rep. 1971 p.15. See Crawford (above n.16) ch.13.

68. ICJ Rep. 1974 p.253.

69. For, respectively, Legal Controls of International Conflict (Stevens,London, 1954) and The Creation of States in International Law (Oxford,Clarendon Press, 1979).

70. J. Stone, 'Problems Confronting Sociological Inquiries ConcerningInternational Law' (1956) 84 Receuil des cours 61; C.H. Alexandrowicz 'The Afro-Asian world and the law of nations (historical aspects)' (1968) 123 Receuil des cours 117; O.P. O'Connell, 'Recent Problems of State Succession in relation to New States' (1970) 130 Receuil des cours 95;N.C.H. Dunbar, 'Controversial aspects of sovereign immunity in the case of some States' (1970) 130 Receuil des cours 197.

71. For comments on the Institute from an Australian perspective see J.G. Starke, (1982) 56 ALJ 374; (1983) 57 ALJ 185; (1984) 58 ALJ 469.

72 Vol.9, containing the papers delivered at a Red Cross Conference on International Humanitarian Law in February 1983, will appear shortly.

73. The Papers so far published are: D.F. Flint, Foreign Investment and theNew International Economic Order (Martin Place Paper No.1, Sydney, 1983) (reprinted in K. Hossain & S. Roy Chowdhury (eds) Permanent Sovereignty over Natural Resources in International Law (Frances Pinter, London, 1984) 144); I.A. Shearer (ed) Prospects for a New Law of the Sea (Martin Place Paper No.2, Sydney, 1983).

74. See (1981) 5 ASILS 1LJ 145.

75. Overall the Australian record has been as follows:

Year Subject Winner of Australian Place in internationalRegional Rounds Division

1977 Nuclear Energy Adelaide 3rd

1978 Secession Adelaide 2nd

1979 Transfer of Technology

Adelaide 1st, and runner up in Jessup Cup.

1980 Air and Outer Space Melbourne 2nd

1981 Maritime boundaries ANU 1st, and Winner of Jessup Cup.

1982 Human rights Melbourne 4th

1983 Transnationalpollution

University ofN.S W.

9th


76 See e.g. K. Widdows, 'What is an Agreement in International Law?' (1979)50 BYIL 117; K. Widdows, "The Form and Distinctive Nature of International Agreements' (1981) 7 Aust. YBIL 114; K. Widdows, 'TheUnilateral Denunciation of Treaties Containing No Denunciation Clause' (1982) 53 BYIL 83; D.F.J.J. de Stoop, 'Australia and International Criminal Law', in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co. 1984) 155; G.J.L. Coles (above n.50). P. Brazil of theAttorney-General's Department (now Secretary of that Department) has also made a contribution in a number of areas; see e.g. P. Brazil, 'Some Reflections on the Vienna Convention on the Law of Treaties' (1975) 6 FLR 223.

77 Some of the problems of specialisation for Government lawyers arereferred to above.

§

78 The Commission for the Conservation of Antarctic Marine Living Resources, established by the Convention on the Conservation of Antarctic Marine Living Resources 1980 (Aust. TS 1982 No.9) with its base in Hobart, Tasmania (Art XIII).

79. G.A. Brennan. See e.g. W.E. Holder and G.A. Brennan, The International Legal System. Cases and Materials with Emphasis on the Australian Perspective (Butterworths, Sydney 1972). His co-author, W.E. Holder, is now a legal adviser with the IBRD in Washington.

80. Australian practice on international law is also now more readilyavailable through the section on 'Australian Practice', prepared by Mr. Jonathon Brown of the Department of Foreign Affairs: see e.g. (1983) 8Aust YBIL 255-458.

81. See above nn.14,24.

JRC:LML:4(11)22 OCTOBER 1984


APPENDIX II

Select Bibliography

NOTE: Items listed here include those by 'Australian' authors referred to in ^he Paper, and a few other items by such authors. It is not a comprehensive bibliography of Australian work in the field.

C.H. Alexandrowicz, 'Australia and GATT', in D.P. O'Connell (ed) International Law in Australia (Law Book Co., Sydney, 1966) 87.

C.H. Alexandrowicz 'The Afro-Asian world and the law of nations (historical aspects)' (1968) 123 Receuil des cours 117.

C.H. Alexandrowicz, The Law-Making Functions of the Specialised Agencies of the United Nations (Australian Institute of International Affairs and Angus & Robertson, Sydney, 1973).

F M. Auburn, Antarctic Law and Politics (Hurst & Co., London, 1982).

Australian Law Reform Commission, Aboriginal Customary Law Research Paper 10, 'Separate Institutions and Rules for Aboriginal Peoples -International Prescriptions and Proscriptions' (1982).

Australian Law Reform Commission, Report 24, Foreign State Immunity(1984).

K H. Bailey, 'Australia and the Geneva Conventions on the Law of the Sea' in D.P. O'Connell (ed) International Law in Australia (Sydney, Law Book Co., 1966) 228.

A.R. Blackshield (ed) Legal Change. Essays in Honour of Julius Stone (Butterworths, Sydney, 1983).

P. Brazil, 'Some Reflections on the Vienna Convention on the Law of Treaties' (1975) 6 FLR 223.

K.G. Brennan, 'Australia and the Law of the Sea - The International Seabed' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law BookCo., Sydney, 1984) 419.

H. Burmester, 'The Australian States and Participation in the Foreign Policy Process' (1978) 9 FLR 257.

H Burmester, 'The Torres Strait Treaty: Ocean Boundary Delimitation byAgreement' (1982) 76 AJIL 321.

H. Burmester, 'Australia and the Law of the Sea - The Protection and Preservation of the Marine Environment' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., 1984) 439.

N.D. Campbell, 'Australian Treaty Practice and Procedure' in K W. Ryan


- 7 -

(ed) International Law in Australia (2nd edn, Law Book Co., 1984) 53.

A.C. Castles, 'International Law and Australia's Overseas Territories' inO.P. O'Connell (ed) International Law in Australia (Law Book Co., Sydney, 1966) 292.

A.C. Castles, 'The International Status of the Australian Antarctic Territory' in D.P. O'Connell (ed) International Law in Australia (LawBook Co., Sydney, 1966) 341.

G. J.L. Coles, 'Temporary Refuge and the Large Scale Influx of Refugees' (1983) 8 Aust. YBIL 189.

Commonwealth of Australia, Ranger Uranium Environmental Inquiry, First Report (AGPS, 1976)

Commonwealth of Australia, Senate Standing Committee on Constitutional and Legal Affairs, Two Hundred Years Later ... The Feasibility of aCompact or 'Makarrata' between the Commonwealth and Aboriginal People(Canberra, AGPS, 1983).

Commonwealth of Australia, Senate Standing Committee on Foreign Affairs and Defence, United Nations Involvement with Australian Territories (AGPS, 1975). ' — '

H. B. Connell, 'International Agreements and the Australian Treaty Power' (1968-69) 4 Aust. YBIL 83.

J. Crawford, The Creation of States in International Law (Oxford, Clarendon Press, 1979) 238-46.

J. Crawford, 'The Legal Effect of Automatic Reservations to theJuridiction of the International Court' (1979) 50 BYIL 63.

J. Crawford, 'The International Law Standard in the Statutes of Australia and the United Kingdom* (1979) 73 AJIL 628.

J. Crawford, 'The Contribution of Professor D.P. O'Connell to the Discipline of International Law' (1980) 51 BYIL 1.

J. Crawford, 'Execution of Judgments and Foreign Sovereign Immunity' (1981) 75 AJIL 820.

J. Crawford, ‘General International Law and'the Common Law' (1982) 76 PASIL.

J. Crawford, 'A Foreign State Immunities Act for Australia?' (1983) 8 Aust. YBIL 71.

J. Crawford, 'International Law and Foreign Sovereigns: DistinguishingImmune Transactions' (1983) 54 BYIL 75.

J. Crawford & W R Edeson, 'International Law and Australian Law' in K.W. Ryan (ed.) International Law in Australia (Law Book Co., Sydney, 2nd edn,


- 8 -

1984) 71.

D.F.J.J. de Stoop, 'Australia and International Criminal Law', in K.W Ryan (ed) International Law in Australia (2nd edn, Law Book Co., Sydney, 1984) 155.

N. C.H. Ounbar, 'Controversial aspects of sovereign immunity in the case of some States' (1970) 130 Receuil des cours 197.

W R. Edeson, 'Conclusive Executive Certificates in Australian Law' (1981) 7 Aust. YBIL 1.

W R. Edeson & J.F. Pulvenis, The Legal Regime of Fisheries in the Carribean Region (Springer-Verlag, Berlin, 1983).

G D. Evans, 'An Australian Bill of Rights' (1973) 45 Aust.Q 4.

E Evatt, 'The Acquisition of Territory in Australia and New Zealand', inC. H. Alexandrowicz (ed), Grotius Society Papers 1968, Studies in the History of the Law of Nations (the Hague, 1970) 16.

H.V. Evatt, The United Nations (OUP, Melbourne, 1948).

H.V. Evatt, The Task of Nations (Greenwood Press, Westport, 1972 (reprint of 1949 edn)).

D. F. Flint, Foreign Investment and the New International Economic Order (Martin Place Paper No.l, Sydney, 1983) (reprinted in K. Hossain & S. Roy Chowdhury (eds) Permanent Sovereignty over Natural Resources in International Law (Frances Pinter, London, 1984) 144).

J.P.L. Fonteyne, 'Burden-Sharing: an Analysis of the Nature and Functionof International Solidarity in Cases of Mass Influx of Refugees' (1983) 8 Aust. YBIL 162.

L.F.E. Goldie, 'International "Confidentiality": State Sovereignty andThe Problem of Consent' in A.R. Blackshield (ed) Legal Change. Essays in Honour of Julius Stone (Butterworths, Sydney, JL983) 316- ~

O. W. Greig, International Law (2nd edn, Butterworths, 1976).

D.W. Greig, 'The interpretation of treaties and Article IV.2 of the Nuclear Non-Proliferation Treaty' (1978) 6 Aust. YBIL 77.

D.W. Greig, 'The Protection of Refugees and Customary International Law' (1983) 8 Aust. YBIL 108.

W.E. Holder and G.A. Brennan, The International Legal System. Cases and Materials with Emphasis on the Australian Perspective (Butterworths, Sydney 1972).

J. Hookey, 'Settlement and sovereignty' in P. Hanks & B. Keon-Cohen (eds) Aborigines and the Law (George Allen & Unwin, Sydney, 1984) 1.


- 9 -

D. H.N. Johnson, 'The puzzle of sovereign immunity' (1978) 6 Aust. YBIL 1

O.H.N. Johnson, 'Lecture on the Study of International Law' (1980) 3 Soochow LR 1.

O.H.N. Johnson, 'Refugees, Departees and Illegal Immigrants' (1980) 9 Sydney LR 11.

M.H.M. Kidwai, 'International Personality and the British Dominions: Evolution and Accomplishment' (1976) 9 UQLJ 76.

M. Landale & H. Burmester, 'Australia and the Law of the Sea - Off Shore Jurisdiction' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., Sydney, 1984) 390.

R.D. Lumb, 'Australian Coastal Jurisdiction' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., 1984) 370.

A. McKnight & K. Suter, The Forgotten Treaties. A Practical Plan for World Disarmanent (Law Council of Australia, Melbourne, 1983).

E. McWhinney, 'On the Vocation of our Age for Lawmaking: Constitutionaland International Codification in an Era of Transition and Rapid Change' in A.R. Blackshield (ed) Legal Change. Essays in Honour of Julius Stone (Butterworths, Sydney, 1983) 241.

G. Nettheim, 'Justice and Indigenous Minorities: A New Province forInternational and National Law', in A.R. Blackshield (ed) Legal Change, Essays in Honour of Julius Stone (Butterworths, Sydney, 1983) 25l.

G. Nettheim, 'The relevance of international law' in P. Hanks & B. Keon- Cohen (eds) Aborigines and the Law (George Allen & Unwin, Sydney, 1984)50.

D.P. O'Connell, 'The Relationship between International Law and Municipal Law' (1960) 48 Georgetown LJ 431.

D.P. O'Connell, 'The Evolution of Australia's International Personality', in D.P. O'Connell (ed) International Law in Australia (Sydney, Law Book Co., 1966).

D.P. O'Connell, State Succession in Municipal Law and International Law (2 vols, Cambridge UP, 1967)

D.P. O'Connell, International Law (2nd edn, Stevens, London, 1970, 2 vols).

D.P. O'Connell, 'Recent Problems of State Succession in relation to New States' (1970) 130 Receuil des cours 95.

D.P. O'Connell, 'The Juridical Nature of the Territorial Sea' (1971) 45 BYIL 303.

D.P O'Connell, The International Law of the Sea (ed I.A. Shearer)


- 10 -

(Oxford, Clarendon Press, vol.l (1982) vol.2 (1984)).

0 P. O'Connell & J. Crawford, 'The Evolution of Australia's International Personality', in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co. Sydney, 1984) 1.

NOTE: For a full bibliogrophy of O'Connell's work see (1980) 51 BYIL 837

J R.V. Prescott, Hap of Mainland Asia by Treaty (Melbourne UP, Melbourne, 1975).

J. R Prescott (ed), Australia's Continental Shelf (Nelson, Melbourne,1979).

L.V. Prott, The Latent Power of Culture and the International Judge (Professional 6ooks, Abingdon, 1979).

L V Prott & P.J. O'Keefe, Law and the Cultural Heritage. Vol.lDiscovery and Excavation (Professional Books, Abingdon, 19&4.

K W Ryan, 'Australia and International Trade Law* in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., Sydney, 1984) 277.

K. W. Ryan & M.W. White, 'The Torres Strait Treaty' (1981) 7 Aust YBIL 87.

6. Sawer, 'Australian Constitutional Law in Relation to International Relations and International Law' in K.W. Ryan (ed) International Law in Australia (2nd edn, Law Book Co., 1984) 35.

R.P. Schaffer, 'South-East Asian Refugees - the Australian Experience' (1981) 7 Aust. YBIL 200.

R P.Schaffer, 'The Inter-Relat1onsh1p between Public International Law and the Law of South Africa: An Overview' (1983) 32 ICLQ 177.

I A. Shearer, Extradition In International Law (Manchester UP, 1971).

I A Shearer, 'The Teaching of International Law in Australian Law Schools' (1983) 9 Adelaide LR 61.

I A Shearer (ed) Prospects for a New Law of the Sea (Martin Place Paper No 2, Sydney, 1983TT

M Sornarajah, 'Problems in Applying the Restrictive Theory of Sovereign Immunity' (1982) 31 JCL£ 66.

M Sornarajah, 'The Extraterritorial Enforcement of U.S. Antitrust Laws: Conflict and Compromise' (1982) 31 ICLQ 127.

M. Sornarajah, 'International Law and the South West Dam Case' in M. Sornarajah (ed) The South West Sam dispute: the legal and politicalissues (University of Tasmania, 1963) 23


- 11 -

J^G. Starke, Studies in International Law (Butterworths, 1965).

J.G. Starke, An Introduction to International Law (8th edn, Butterworths, 1977).

J.G. Starke, 'Australia and the International Protection of Human Rights' in K.W. Ryan (ed) International Law in Australia (Sydney, Law Book Co , 1984) 136.

J. Stone, 'Problems Confronting Sociological Inquiries Concerning International Law' (1956) 84 Receuil des cours 61.

J. Stone, Legal Controls of International Conflict (rev.edn, London, Stevens & Sons, 1959).

J. Stone, Of Law and Nations (W.S. Hein, Buffalo, 1974).

NOTE: For a full bibliography of Stone's work see A.R. Blackshield (ed)Legal Change: Essays in Honour of Julius Stone (Butterworths, Sydney,1983) 335-44.

P. Sutherland, 'Recent Statutory Developments in the Law of Foreign Sovereign Immunity' (1981) 7 Aust. YBIL 27.

I. Tammelo, 'Relations between the International Legal Order and the Municipal Legal Orders - A "Perspectivist" View' (1967) 3 Aust. YBIL 211.

G. Triggs, 'Restrictive Sovereign Immunity: The State as InternationalTrader' (1979) 53 ALJ 296.

G. Triggs, 'An International Convention on Sovereign Immunity? Some Problems in Application of the Restrictive Rule* (1982) 9 Monash ULR 74.

G. Triggs, 'Australia's Ratification of the International Covenant on Civil and Political Rights: Endorsement or Repudiation?' (1982) 31 ICLQ278. -------

E.G. Whltlam, 'Australia's International Obligations on Aborigines' (1981) 53 Aust. Q 433.

K. Widdows, 'What 1s an Agreement in International Law?' (1979) 50 8YIL117. -------

K. Widdows, 'The Form, and Distinctive Nature of International Agreements' (1981) 7 Aust. YBIL 114.

K. Widdows, 'The Unilateral Denunciation of Treaties Containing No Denunciation Clause' (1982) 53 BYIL 83.

L. Zines, The High Court and the Constitution (Butterworths. Sydney. 1981) ch.!3~ -------------------------------------------------


MERCENARISM - THE AUSTRALIAN CONNECTION Beatrice Scheepers (B.A.(Stel.)).

Australia has recently invoked, for the second time, the provisions of the Crimes (Foreign Incursions and Recruitment) Act 1978* At the time of its enactment, the legislation was said to be directed towards meeting the twin objectives of, firstly, prohibiting persons preparing for or engaging in incursions into a foreign country, and, secondly, prohibiting the recruiting within Australia of persons to serve in the armed forces of a foreign country.1

Section 7 of the Act prohibits preparations for incursions into foreign countries for the purpose of engaging in hostile activities, and provides a penalty of imprisonment for ten years. The provision applies to Australian citizens, persons ordinarily resident in Australia, and persons who at any time during the period of one year immediately preceding the commission of the offence were present in Australia for a purpose connected with the offence

"Preparations" include accumulating arms, weapons or poisons; training, drilling or the practice of military exercises; being present at a meeting with the intent of allowing oneself to be trained in the use of arms or explosives or the practice of military exercises or movements; giving, soliciting or receiving money or goods for the purpose of an incursion into a foreign country for the purpose of engaging in hostile activities, and, being in control of premises, knowingly permitting a meeting to be held on such premises for the purpose of committing or promoting the commission of an offence against sec 7.

Under sec.9 it is an offence for a person to recruit, to advertise for the purpose of recruiting, or to facilitate or promote the recruitment of another person to serve in or with an armed force, whether government or otherwise, in a foreign country. The penalty is $10,000 or imprisonment for five years

The first prosecution under the Act arose from events in bushland near Eden (NSW), where a group of men were allegedly meeting, in September 1978, to be trained in the practice of military exercises. The Crown alleged that the defendants were members of the HRB (Croatian Revolutionary Brotherhood), a secret paramilitary group whose aim is to overthrow the Yugoslav government At the committal proceedings in February 1980 in the Sydney Central Court of Petty Sessions, Mr H. Berman SM found that there was a prima facie case against 13 of the 19 defendants charged under sec.7 of the Act.2

During the trial, which commenced in the District Criminal Court in Sydney in August 1981, it was alleged that the defendants, wearing paramilitary uniforms bearing Croatian insignias, were preparing for an incursion into Yugoslavia by training in the use of arms and explosives. A small armoury of weapons and military equipment was found on the premises.3Some of the defendants argued that the purpose of the gathering had been to make a documentary film. The jury, having deliberated for a record period of 10 days, returned a verdict of not guilty in respect of nine of the defendants,


failed to reach a verdict on three, and convicted one defendant, Jure Marie, who was subsequently sentenced to four years' imprisonment.4

The most recent occasion for the invocation of the Act arose from an alleged planned invasion of the Federal and Islamic Republic of the Comoros. The Comoro Islands, situated in the Mozambique Channel between the Malagasy Republic and the East African coast, were once ruled by Moslem sultans and became a French colony during the nineteenth century.

Over the last decade the archipelago had witnessed considerable political turmoil, some of which rais attributable to the participation in the Comoros government of a veteran mercenary.5

Pursuant to an independence declaration signed in Paris in 1973, a referendum was held on the Islands at the end of 1974. The vast majority of the total population voted in favour of independence from France, but Mayotte, the eastern-most island, whose population is overwhelmingly Christian, favoured continued French administration.

The President of the Government of the Comoros, Mr. Ahmed Abdallah, welcoming the outcome of the referendum, indicated that independence would be proclaimed at the appropriate time in agreement with the French Government. Six months later the Comoro Islands government unilaterally declared independence, while Mr tercel Henry, the leader of Mayotte's majority anti-independence party, the Mouvement mahorais, claimed that it was contrary to Article 53 of the French constitution to cede part of the national territory without the consent of the population concerned.

Mr Abdallah's new government came under immediate attack from two directions: The Front national uni, a coalition of opposition parties, condemned his election and called for an investigating committee to be sent to Mayotte so as to avoid a "fratricidal war", while the five Mayotee deputies in the government declared their refusal to recognise Mr Abdallah's government, and telegraphed President Giscard D'Estaing, placing their island "under the protection of the French Republic".

Mr Abdallah had earlier claimed that France wanted to retain control of teyotte in order to establish a military base on it, and called for the immediate withdrawal of French armed forces from the Islands. France announced in July 1975 her decision to withdraw her military detachment from one of the Islands, Grand Comoro, but 200 soldiers of the French Foreign Legion remained stationed on teyotte. '

The new government was short-lived: in less than three weeks it was replacedby a new regime set up by the Front national uni. One of the chief architects of the Front, Mr Ali Soilih, announced the formation of a Revolutionary Council, comprised of himself, Prince Said Mohammed Jaffar and militants of the RDPC (Rassemblement democratique du peuple comorien), MOLINACO (Mouvement de liberation rationale des Comores) and the Socialist Party.

In mid-August the Revolutionary Council handed over its powers to the newly constituted National Executive Council, presided over by Prince Said Mohammed Jaffar The Council affirmed its adherence to the Organisation of African Unity (OAU) and gradually consolidated its rule by introducing price control


and distributing freely rice, sugar and salt from hoards accumulated under the former regime. At the same time the de facto secession from the islands of Grand Comoro and Moheli of the island of Anjouan, where Mr Abdallah had remained since his overthrow, was ended by military action on the part of the National Executive Council.

In the meantime, Mayotte continued to be administered by members of the Mouvement mahorais as an integral part of the French Republic. The continued impasse over the island's insistence on rejecting independence was beginning to threaten the new state's economy. During October 1975 some 2,000 members of the pro-independence minority were expelled from Mayotte, in response to which Mr Soilih attempted a "peaceful invasion" of the island. After a forced withdrawal of the unarmed group, Prince Said Mohammed Jaffar appealed to the United Nations to "support the Comoro people in their just struggle to safeguard territorial integrity".

In November 1975 the National Executive Council launched further measures in an effort to end the de facto secession of teyotte. The Council declared that all property of the French administration on the Islands was the property of the new state, closed the 1,000-pupil lycee in the capital, Moroni, and expelled all French nationals.

By the end of 1975 the French government enacted a bill whereby the islands of Grand Comoro, Anjouan and Moheli ceased to be part of the French Republic, and fixed a two-stage referendum for teyotte. At the same time a United Nations mission, after a visit to the Islands, warned that as a result of the sudden French withdrawal, the total collapse of the Islands' economy was imminent All supplies of sugar and flour had run out, and the remaining supply of rice was estimated at 675 tons, confiscated from the warehouse of Mr Abdallah, the previous head of state. It was subsequently reported that the Islands wouldreceive 2,500 tons of rice from Australia and $814,500 under the World FoodProgramme.

The two-stage referendum planned for teyotte was held during February and April, 1976. In the first referendum voters had to choose whether the island should remain within the French Republic, or whether it should become part ofthe Comoro Islands state. The official result, in favour of remaining withFrance, was widely criticised: it was claimed that there had been noreferendum campaign; that most of the pro-independence voters had abstained from voting; that 80% of the electorate were illiterate and spoke only Swahili, and that nearly 1,000 people had left the island as a result of intimidation

In the second referendum voters had to choose whether teyotte should retain, or abandon, its status as an overseas territory. However, the printing by the Mouvement mahorais of a third ballot paper demanding overseas department status resulted in only 20% of the overall vote being valid.

Before the first referendum Mr Soilih, who had replaced Prince Said Mohammed Jaffar as Head of State, called for an urgent meeting of the UN Security Council. During the Council's debate, the African states took the view that the referendum constituted "aggression against the sovereignty and territorial integrity of the Comoro Islands". The draft resolution sponsored by Benin, Guyana, Libya, Panama and Tanzania, called upon the Council to declare that the proposed referendum amounted to an interference in the internal affairs of the


Islands, and to ask France to abandon the referendum and hold immediate talks with the Comoro government to safeguard that country's unity and territorial integrity.

The resolution failed to be adopted - 11 countries voted in favour, threeabstained, and France, a permanent member of the Council, exercised her right of veto.

In October of that year the UN General Assembly adopted a resolution condemning as null and void the referenda and calling on France to withdraw from the Island. The French government responded by enacting a bill conferring a special status within the French Republic upon Mayotte, and placed a French government representative in charge of national interests (including defence), administrative control and respect for the law.

During 1977 and 1978 there was further unrest. In March 1977 it was reported that a special network had been uncovered, organised to prepare the overthrow of the government by mercenaries recruited in France. Four months later Radio Moroni announced an attempted coup on Anjouan. A further coup attempt,allegedly linked to that of June 1977, was uncovered in January 1978.

The repeated attempts to overthrow President Soilih finally succeeded when in mid-May 1978 a Political-Military Directorate seized power. This coup had been organised by Colonel Bob Denard, a veteran French mercenary. Denard had served as a mercenary in the Congo (now Zaire) during the mid-1960's, and later in Biafra and Yemen. He also fought as a mercenary in Zimbabwe, and led the attack on Cotonou airport during the attempted coup in Benin (formerly Dahomey) in 1977.

Ex-President Ahmed Abdallah and his former deputy, Mr Mohammed Ahmed, were appointed co-presidents of the newly formed Political-Military Directorate. Denard, who had assumed the name of Said Mustapha Mahdjou, became a permanent members of the Directorate and head of the Comoros armed forces and police M. Louis de Guiringaud, the French Foreign Minister, later denied that his government had been involved in the overthrow of President Soilih.

The new government was refused recognition by the OAU and was being boycotted by the African group at the United Nations.

When the Directorate was reduced to a purely political body, Denard resigned as permanent member but retained his position as commander of the security forces until late September when Mr Abdallah announced that Denard was to leave the Islands shortly. At a farewell ceremony he praised Denard as a "hero" who had "saved the Comoros, its people, the Moslem religion and all that is humane in this country".

Denard himself was less eulogistic: he stated that he was withdrawing becausehe had become an embarrassment to the Comoros.

After the adoption of a new constitution Mr Abdallah became President and appointed Mr Salim Ben Ali Prime Minister. The new government concluded a military agreement with France under which the latter would supply aid in the event of external aggression against the Comoros and provide technical military assistance in training the Comoros' Army It also appointed as ambassador to


France Mr Said Ali Kemal who held the position until his resignation in July 1980, soon after which he issued a communique in Paris /FThree years later Mr Kemal's name was mentioned in connection with the recent prosecutions in Australia arising from the alleged planned invasion of the Comoros. In July 1983 the Attorney-General, Sen. Gareth Evans, announced that six alleged mercenaries would be prosecuted on charges of plotting to overthrow the government of the Comoros. Under sec.10 of the Crimes (Foreign Incursions and Recruitment) Act proceedings for the commitment of a person for trial on indictment for an offence against the Act shall not be instituted except with the consent in writing of the Attorney-General.

In February 1983 Frederick Patrick, a former British Special Air Service soldier experienced in the use of explosives, and Edward Greengrove, a Perth businessman, were charged in Perth under sec.7 of the Act with receiving money for the purpose of overthrowing the government of the Comoros. Patrick was charged with receiving $2,766 in Australian currency in Perth during January 1983, and Greengrove with receiving $54,500 in German currency in Singapore in December 1982.6A similar charge was later brought in Perth against Walter Pilgrim, who also appeared on a charge of recruiting Patrick to become a member of a body of persons which had as its objective the overthrow of the government of the Comoros.7

It has been reported that internal rivalry within the group led by Patrick, who was disputing Pilgrim's leadership, to disclose their plans to a journalist of the Perth "Sunday Times".8

According to the evidence of Peter Laud, a Perth journalist, Patrick told him tliat the raid ms to be funded by Mr Kemal and was to cost $150,000, with each man to be paid $5,000. The Crown alleged that Mr Kemal, who contacted Pilgrim in England in 1982, wanted to depose President Abdallah and reinstate himself as ruler.9

Pilgrim, who had pleaded guilty to the recruiting charge was sentenced in the Perth District Court in April 1984 to imprisonment for a minimum of eight months and a maximum of two years. 10 The other two defendants, Patrick and Greengrove, were convicted and each sentenced to imprisonment for a minimum of six months and a maximum of 18 months.11

Late in terch, 1983 three other men were arrested in Melbourne during a police raid on a yacht in Portland Harbour. 12 William Lugg, John Meyer and Dieter Bujorevic were later charged under sec.7 of the Act, the Crown alleging that the defendants had planned to sail the yacht to Reunion Island which was to be used as a staging post for an attack on the Comoros. 13

The Crown also alleged that the three defendants had been hired by Pilgrim and that the attack had been arranged by Mr Kemal.14 According to the Commonwealth Prosecutor, Bujorevic and Pilgrim were to attack the island of Grand Comoro from one side, with Lugg as a back-up, and cause a diversion, while 50 mercenaries hired in Britain would attack from the other side.15 .

On 18 October,1983 Mr Kevin Mason found a prima facie case against all three defendants• 16 To date the case has not yet gone to trial.


ENDNOTES

1 See Second Reading Speech by the then Attorney-General, Sen. Durack:

Commonwealth Parliamentary Debates (Senate), 7 March, 1978, at 363.

2. "Sydney Morning Herald", 1 March, 1980 .

3 "Sydney Morning Herald", 5 August, 1981

4 "Sydney Morning Herald", 9 October, 1981

5 Sources of historical information on the Comoros are: "Le Monde", "BBC

Summary of World Broadcasts", "Times", "Daily Telegraph", "Guardian",

"Financial Times", "International Herald Tribune", "Neue Zurcher

Zeitung", "New York Times", as compiled and digested in Keesing's__________

Contemporary Archives, 1975-1984.

6. "Sydney Morning Herald", 7 April, 1983

7 "West Australian", 13 December, 1983

8. "Le Monde du Renseignement: Bulletin d'Inforraation sur 1'Intervention

Clandestine", Jan-Feb, 1984.

9. "West Australian", 13 December, 1984; 20 April, 1984

10 "West Australian", 20 April, 1984

11. "West Australian" 23 June, 1984

12. "Age", 2 April, 1984

13 "Sydney Morning Herald", 19 July 1983

14. "Sydney Morning Herald", 19 October, 1983

15 "Sydney Morning Herald", 18 October, 1983

16. "Age", 19 October, 1983.

[1985 ] AUSTRALIAN INTERNATIONAL LAW NEWS 70

THE COLLECTIVE EXPULSION OF FOREIGN NATIONALS

, by Nii Lante Wallace - BruceLL.B (Ghana), M.INT.LAW (A.N.U.); Doctoral Candidate,

Law School Sydney University.

I. INTRODUCTION

On January 17, 1983 the Nigerian Government gave two weeks notice to all illegal immigrants to leave the country. Reportedly over 2 million foreigners were affected.1 Although the event was given publicity in the international press, it has virtually passed by as yet another event in international affairs. International lawyers have hardly addressed themselves to the issues raised by collective expulsions2. It is our objective in this paper to study the legal issues that such upheavals raise. We begin by, re-stating the traditional international low position with respect to the State's competence to expel foreign nationals. Next, we look at the United Nations law on the subject. We then move on to describe some recent or comparatively recent examples of collective expulsions. Matters arising out of the latter are analysed with a conclusion.

II. THE LAW

i. A Re-Statement of the Traditional Position

The traditional view often stated by diplomats is that a State is competent to admit and expel foreign nationals - this competency is said to flow from its sovereignty. For example as far back as 1869, U.S.Secretary of State, Fish expressed the view that:

The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the State are too clearly within the essential attributes of sovereignty to be seriously contested3

International lawyers also share this view. A representative view may be said to be the one stated by Oda:

The right of a State to expel, at will, aliens, whose presence is regarded as undesirable, is, like the right to refuse admission of aliens, considered as an attribute of sovereignty of the State..The grounds for expulsion may be determined by each State by its own criteria.4

Moreover, international tribunals have been in accord with the traditional position.5

On the other hand, it has been pointed out that the State's discretion is not absolute and in exercising its power of expulsion, the State ought not to carry it out in an arbitrary manner.6 The position of the United Kingdom in this regard was outlined in 1966 to be that, the Government reserves the right to make representations in situations where,


...the manner in which the power [of expulsion] is exercised causes hardship, or seems to be arbitrary or unjust... This is different from representations, which we cannot make, concerning the operation of the laws of a country perfectly correctly according to their concept of their laws.7

In effect, customary international law imposes some limits on the State's competency to expel foreign nationals. It would seem, however, that such

i limitations are far from clear as they are imprecise to determine or todelineate their exact scope.

ii. United Nations Norms

The United Nations Charter contains general prescriptions on human rights in Articles 1(3),55,56 and 76(c). The first direct reference to the subject of expulsion, admittedly in the reverse, is Article 13 of the Universal Declaration of Human Rights of 1948.® It reads:

1. Everyone has the right to freedom of movement and residence within the borders of each state.

2. Everyone has the right to leave any country including his own and to return to his country.

The International Convention on the Elimination of All Forms of Racial Discrimination of 19659 repeates these words10 Probably, the most relevant document is the Covenant on Civil and Political Rights of 196611 which declares in Article 2(1) that:

Each State Party...undertakes to respect and to ensure to all individuals within its territory, and subject to its jurisdiction the rights recognised in the present Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property birth, or other status.

The status of these instruments is clear. Members of the United Nations are under obligation to observe human rights of people residing in their territory, and of course, as well as those of their own nationals.Jessup emphasises this point.

It is already the law at least for Members of the United Nations, that repsect for human dignity and fundamental human rights is obligatory.12

The International Court of Justice expressly endorsed this position in the Namibia Opinion.13 Similarly, the Universal Declaration which gives specific content to the Charter prescriptions, is regarded as part of customary international law.14 The Covenants bind the parties thereto. They are further interpretation of the Charter and so part of customary international law as they contribute "mightily to the stabilization of authoritative expectations about the defense and fulfillment of human rights."15

[1985 j AUSTRALIAN INTERNATIONAL LAW NEWS 72

It is clear then, that the foreign national is entitled to certain fundamental human rights whilst he is resident in the host country . And in the words of the Covenant on Political and Civil Rights, he is entitled to those rights, irrespective of nationality, birth or other status. We maintain that the obligation on the host State continues until the last expellee leaves the last bit of territory of the expelling state.

In sum, both customary international law as well as United Nations norms, do not seem to have specific rules on the question of expulsion of foreign nationals. But the foreigner is entitled to certain protection whilst he is an alien and he is entitled to return to his country.

Ill A STUDY OF COLLECTIVE EXPULSIONS

In the heat of the Suez Canal nationalization and the invasion of Egypt, several thousand French and British subject were expelled from Egypt between November 1956 and January 1957, on notice ranging between seven and ten days. Some 11,000 stateless Jews were also ordered to leave in February 1957.16 In 1961, Egypt carried out further expulsion measures. Beginning from December 23 members of the Greek community of about 40,000 were compelled to leave. This was at a rate of 500 a week.17

In 1958 as a result of local hostility, Benin nationals (then Dahomeyans) resident in Ivory Coast were expelled from that country.18 The Beninois were again expelled in December 1963 from the Republic of Niger.The measures which involved at least 8,000 nationals of Benin was caused by the dispute between the two countries over sovereignty to the Lete Island, an islet in the River Niger on their common frontier.19 Allegedly due to hostilities expressed towards the Gabonese team during a soccer match between the two countries in the Congolese capital in September 1962.Congolese residing in Gabon were attacked resulting the death of four. Consequently, the Gabonese Government expelled some 2,500 Congo nationals from the country.20

One of the noted instances of collective expulsions took place in Ghana in 1969. In July, the Military Government of the National Liberation Council gave neighbouring countries eight months to provide travel and identity documents to their nationals residing in Ghana. It was estimated that out of a population of 8 million, a high 2 million were aliens, the majority being Nigerians. On November 18, the new civilian administration of Dr. Busia issued a directive referred to in the press as a "quit order", requiring all foreigners who did not possess the requisite residence permits to leave the country within two weeks.21 The arrival of about 40,000 people in Togo caused alarm. The authorities closed the border saying the country could absorb no more. Some 80,000 Nigerians were temporarily resettled in Ogbomosho in the then Western State at a cost of N 1 million. The Red Cross had to cater for another 20,000 Nigerians in transit camps in Lagos. By January 1970, about 200,000 of those affected by the "quit order" had left.

Uganda had gone on record as having carried out one of the most infamous expulsion measures in recent history. In all fairness to President Amin, it must be highlighted that the expulsion was first contemplated in the late 1960s under the previous Government. On January 5, 1969 President .Obote warned that about 40,000 Asians holding U.K. passports would eventually have to leave Uganda. His reason:


We are not going to push anybody out, but we are not going to have a large body of foreigners controlling a vital aspect of our economy.22'

It was left for President Amin to do the actual pushing. On August 4, 1972 Amin indicated that he would ask Britain to take over responsibility for the Asians holding U.K. passports. Five days later, he announced the signing of the Immigration (Cancellation of Entry Permits and Certificates of Residence) Decree of 1972.23 It revoked with immediate effect the permit or certificate of residence issued or granted under the provisions of the Immigration Act of 1969 to any person of Asian origin, extraction or descent and who was a citizen of the U.K., India, Pakistan and Bangladesh.24 They were given 90 days within which to fold up and be gone. Initially, professionals such as doctors and teachers were exempted. Amin changed his mind one week later and ordered them to leave as well, because they could not "serve the country with a good spirit after the departure of other Asians".25 On August 19, Amin took a further step by announcing the Asians who were Ugandan citizens were to be expelled, because of "acts of sabotage and arson". He had to drop the idea when he came under strong fire from both within Uganda and without. President Nyerere had described the measure as "clearly racialism"26

President Amin's objective in carrying out the expulsion can be summed up in these words:

I have taken effective measures to ensure that we do not eventually lose our political independence as a result of not ensuring that our economy is in our hands. Political independence is meaningless without economic independence.27

The expulsion order affected between 60,000 and 75,000 Asians, many of whom arrived in Britain. Less publicized was the expulsion in October 1982 of many thousands of Ruandans from Uganda. Most of them had fled their country during intertribal fighting which began in 1959.28

Earlier, the Government of Zaire, between September and November 1971 expelled 4,750 foreigners who were found to be either unemployed or allegedly engaging in fraudulent activities such as smuggling of diamonds. Another 2,248 were classified as undesirable and so liable to expulsion.29 Nationals of Benin suffered another ill-fate when in July 1977 a "spontaneous" outbreak of rioting and attacks against them in Gabon was said to have been caused by the violent recriminations made by their President, Kerekou, against the Gabonese leadership (as well as Morocco) for their alleged involvement in an attempted coup in January against Kerekou, at the Assembly of Heads of State and Government of the O.A.U. in Khartoum.30 More than 6,000 Beninois were forcibly assembled in school grounds near the airport and ordered out of the country. Gabon hit the headlines again in 1981. In May, nearly 10,000 nationals of Cameroon were expelled after demonstrations against them took place in the capital Libreville and Port-Gentil.31


The most recent example of collective expulsion took place in Nigeria. On January 17, 1983 the Internal Affairs Minister gave all illegal immigrants two weeks to leave the country. Those who did not comply were to be "flushed out" by security agents and have their names placed on a "stop list" to ensure that they could not return to the country again. Mainly affected were nationals of Ghana, Niger, Chad, Benin, Togo, Upper Volta,Ivory Coast and Cameroon. According to the Ghana Embassy in Lagos, 1 million of its nationals were affected - the Nigerians put the figure at twice that number. Niger also had a high figure of some half a million nationals3?The Minister pointed out that the foreigners, majority of whom were employed by private organizations were in violation of the Nigerian Immigration Act and that such "flagrant abuse of our laws can no longer be tolerated".33

The Nigerian measure received a lot of publicity in the international press. Locally it was received with approval. The Government-owned Daily Times editorialized:

The advanced countries are known to have been notorious for the inhuman treatment against illegal immigrants and therefore there is no reason why the Western press is now screaming because Nigeria has decided to expel over 2,000,000 illegal aliens.34 In August this year Zambia expelled about 2,500 nationals of Zaire as a result of which thousands of Zambians were either expelled or compelled to leave Zaire34

Expulsion measures have not been confined to the African continent.A number of "Overseas Chinese" were expelled from Indonesia between December 1959 and early I960.35 The policies of the Burmese Government, in particular the nationalization of shops in 1963 and 1964 effectively resulted in the expulsion of the Indian community from that country3? The implementation of the 1964 Agreement3sBbetween India and Sri Lanka (then Ceylon) in respect of the nearly one million stateless Indians in Sri Lanka, led to at least 525,000 Indians being repatriated to India. These were mainly descendants of South Indians who had migrated to Sri Lanka in the nineteenth and the early part of the century to work in the tea and rubber plantations. Under clause 3 of the Agreement, Sri Lanka was to accept some of them as its citizens and India was to confer citizenship on the rest35 In February 1979 Vietnam expelled hundreds of thousands of Chinese "Hoa people" from the country. The International Red Cross had to organize the departure of another 2,700 Taiwanese.36

IV. MATTERS ARISING '

As we pointed out earlier,37 there is littled direct United Nations norms on the issue of expulsion. Traditional international law is also not clear as to the exact scope of the rules. International arbitral awards which have dealt with the question, have at best dealt with individual cases of expulsion. Examples which come to mind include, the Chevreau case,38 which involved the deportation of an alleged French spy from Persia by the British and the case of Mr Raphael39 who in 1907 was expelled by the Italian .authorities case - the list is too long to reproduce.


The General Assembly of the United Nations, does not seem to have addressed itself seriously to the whole question of collective expulsion of foreign nationals in international law. When President Amin expelled the Asians from Uganda, the United Kingdom initially pressed for a debate in the Assembly. This was abandoned when President Mobutu of Zaire offered to mediate and to seek and extension of the deadline for the expellees.41 It would be contended in this paper that there are limitations on the State's sovereignty to expel foreign nationals. Where the numbers involved are large, there is an additional responsibility to ensure a smooth and orderly movement.

i. Justification and the Expelle's Right to a Hearing

It is claimed that, the State in exercising its power of expulsion, is under obligation to offer adequate grounds on which the order is being made. In the Boffolo case42 Umpire Ralston put forward the proposition that j the expelling State ought to state the grounds for the expulsion and an international tribunal is competent to consider the adequacy of the justification. In the FCfrst's case, the Queen's Advocate made it clear that the U.K.Government was entitled not only to adequate compensation, but also an apology as the justification given for the expulsion was of a "vague and indefinite character, inconsistent with the admitted facts and unsupported by any proof or corroboration whatsoever."43

It is doubtful if States today would be willing to question the justification offered by an expelling State, except in perhaps few cases.The fact is that the host State is entitled to a margin of appreciation of the situation. It has been suggested that the justifications which would be acceptable in international law are:44

(a) for entry in breach of law;(b) for breach of the conditions of admission;(c) for involvement in criminal activities:(d) in the light of political and security considerations.

When in March 1977, Libya expelled some 24,000 Egyptians and Tunisians working in the country, no reasons were given for the measure.45 The reasons given by Ghana and Nigeria for the expulsions of 1969 and 1983 are interesting.It was alleged in both cases that they were illegal migrants and were(or the majority) engaging in criminal activities. Ghana's Aliens ComplianceOrder of 1969 was defended thus:

Ghana's prison statistics show-that 90 percent of persons known to have criminal records of serving sentence in the prisons for criminal activities are aliens. A high percentage of crimes of violence is also largely attributable to aliens many of whom are in the country illegally.In addition, it is estimated that as much as 5,000 to 10,000 sterling annually of Ghana's diamonds are being smuggled out of the country by aliens illegally in Ghana.46


The statement added that, in a country of 600,000 registered unemployed, the economic realities of planning alone would have necessitated the checking of the influx of illegal aliens. Similarly, in January 1983, the Nigerian Internal Affairs Minister had blamed foreigners as "one of the remote causes" of Nigeria's social problems. He cited in particular the bloody riots in Kano, Maidugri and Kaduna (in the North) involving Muslim fundamentalists in the previous year, which had resulted in the loss of lives and destruction of property. He concluded that the Government could not allow "such unwholesome developments to continuously plague the nation".47

. A closer study reveals that whilst the economy of these countries is in good shape, they turn a blind eye on the influx of foreigners who are quickly absorbed into the work force and in a few cases, petty business operations. At this stage the foreigners are found useful. On the other hand, when the economy gets into trouble the authorities all of a sudden discover these illegal aliens who are then expelled on short notice. As an editorial in West Africa48 rightly commented in the case of Nigeria:

That the measure should come at this time is also understandable. The economic boom years from the early 1970s onwards made Nigeria look more and more like a land of oil recycled as milk and honey especially for countries like those to the north in the Sahel that were crippled by drought, or those like Ghana that were unable to solve their economic or political problems. Their presence was tolerable as long as the boom conditions continued but when the climate changed, there was an increasing sentiment against foreigners that developed in Nigeria.

The presence of over 2 million foreign nationals in Nigeria can be explained largely by the operation of the Treaty of the Economic Community of West African States.49 Under a Protocol adopted in May 1980 (it is to be implented over a 15 year period) a citizen of a member State has the right to visit any member State for up to 90 days without a visa; he can obtain the right to residence in the second stage and finally he can establish a business in that other country.

Economic reasons were chiefly cited for the expulsion of the Asians for Uganda. They were accused of sabotaging the economy by such acts as creating artificial shortage, infringement of foreign exchange regulations, the evasion of tax and the corruption of officials.50

Whatever the real reasons for the expulsion of foreign nationals, it is doubtful today if a collective expulsion can be faulted solely on the grounds of unacceptable justification or inadequacy thereof. Another aspect of the requirement of justification is that the expellee ought to be given a hearing and have his case reviewed. Article 21 of the Code adopted by the Institute of International Law in 1892 declared that in all cases where the expellee contested the expulsion order or claimed to be a national, he ought to be given a hearing.51 In the Chevreau case52 the arbitrator stated the proposition that the arrested person is entitled to be given the opportunity to defend himself. Article 13 of the International Covenant on Civil and Political Rights may also be cited. Although, this is the method which States use in the normal deportation process, for collective expulsions, the evidence indicates that States are not willing to adhere to such a rule. The large numbers involved make it impractical to insist on granting the expellees a hearing or reviewing their cases.

[1985J AUSTRALIAN INTERNATIONAL LAW NEWS 77

At any rate, the exception provided is discharged from this obligation, can always be resorted to by a State embarking on collective expulsion.

ii. Discrimination and Expulsions

There has now emerged in international law a norm against discrimination.53 Discrimination is contrary to the United Nations Charter, the Universal Declaration of Human Rights, the 1966 Political and Economic Covenants, the Racial Discrimination Convention and other international instruments. In the words of Brownlie, non-discrimination is one of "least controversial" examples of jus cogens?4

If the collective expulsions are discriminatory, then they are contrary to international law. This would provide a strong basis on which to challenge the measure and to seek indemnity. Discrimination can take various forms. In 1983 the mass expulsion of foreigners in Nigeria, expressly exempted those employed by the Federal, State and parastatal institutions as well as those who have been resident in the country since 1963. General as this statement was worded, it could hardly be contested as it did not differentiate between nationalities.55 The extension of one-month deadline from the end of January to February 28 was also granted only to skilled workers who were expected to regularize their stay during the period. The distinction between the skilled and the large army of unskilled foreing workers, could also not be seriously contested in so far as it did not differentiate between nationalities. In the actual implementation, the story was different. The question was legitimately raised, as to why the expulsion had not affected for example, Europeans and Asians.56

The clearest recent violation of the norm of non-discrimination in expulsion occurred in Uganda in 1972. The Immigration (Cancellation of Entry Permits and Certificates of Residence) Decree of 1972 referred explicitly to persons of Asian origin, extraction or descent who were citizens of the U.K., India Pakistan and Bangladesh. Those of Zambia, Kenya, Tanzania and Zaire were later added. This is manifest racial discrimination and so contrary to customary international law,57 irrespective of whether Uganda was a party to the Racial Discrimination Convention of 1965 or not.

France had argued in the General Assembly in 1956 that the collective expulsions of thousands of its nationals from Egypt was contrary to the Universal Declaration of Human Rights and the Charter.58 As a State is not expected to expel its own nationals and so a foreigner cannot insist on national treatment in this context, it would seem to be a violation of international law if the State discriminates against other foreigners in carrying out its expulsion.

ii. Dispossession of Property ,

Expulsion measures raise issues of dispossession of property. The classic type59 of nationalization or expropriation is hardly involved. An unusual case was that of Asians in Uganda. The Declaration of Assets (Non-Citizen Asians) Decree60 stipulated that those leaving Uganda could not transfer any immovable property, bus company, farm including livestock or business to any person. They also could not mortgage the property nor issue new shares, vary the terms of employment of their staff nor appoint new directors.61 The Minister was to appoint trustees to look after their businesses who could act as agents if the departed Asians did not return within three months.62 An amending Decree (No.29) of 1972 empowered the agents appointed under the first Decree to sell, lease, acquire or transfer the property of Asians with the consent of the Abandoned Property Custodian


Board comprising six Ministers.63 Under s.12(2), the Board could also declare other abandoned property vested in it. Under four instruments,64 63 companies and other properties including manufacturing, trading, hotel and 20 saw mills were accordingly vested in the Board. Finally, The Acquired Asian Business (Rights and Obligations Ascertainment) Decree (No.26) of 1973 sought to consolidate the various decrees affecting the Asian properties.Under it, the Abandoned Property Custodian Board was to fix the value of the business transferred to the new owners who did not gain ownership of the premises of the business. The bank accounts of the Asians were blocked and transferred to the Commercial Bank of Uganda. They were allowed to take only

50 on them and the personal effects could not be more than 481b.

For an expropriation measure to be valid in international law, it must not be discriminatory and it must be accompanied by compensation. Two recent arbitral awards have restated the customary rule. Sole arbitrator Mahmassani state in Liamco v. Libya.65

It is clear and undisputed that non-discrimination is a requisite for the validity of a lawful nationalization. This is a rule well established in international legal theory and practice. Therefore a purely discriminatory nationalization is illegal and wrongful.

Similarly, Judge Largergren, dealing with the nationalization of British Petroleum's interest in the Sarir Oilfield on December 7, 1971 concluded:

Further, the taking by the Respondent of the property rights and interests of the Claimant clearly violates public international law as it was made for purely extraneous political reasons and was arbitrary and discriminatory in character.Nearly two years have now passed since the nationalization and the fact that no offer of compensation has been made indicates that the taking was also confiscatory.66

The Ugandan take-over of Asian property was hence wrongful in international law.67 The Decree (No.29) of 1972 made provision for the payment of compensation which was to be assess by valuers. Appeal to a tribunal against the decision of the valuers was possible and further appeal lay to the High Court.68 It was, however, unrealistic for somebody whose residence permit had been revoked, to hang around, seeking compensation for property taken. The provision then became a case of illusory local remedy which could not be exhausted.

By far the more common technique of dispossessing foreign nationals is to prevent them from taking their belongings out of the country or to give them so short a time that they end up abandoning them. These indirect or surreptitious means, usually described as "creeping" or "constructive" expropriation have been recognized as disguised instances of take-overs for which the rules of expropriation apply.69


When Libya expelled Egyptians and Tunisians in 1976, the latter were seized in the streets and at their places of work. They were denied the chance of taking any money with them, let alone their belongings. Most of the hundreds of thousands of Chinese "Hoa people" expelled from Vietnam in 1979 arrived in China possessing only the clothes they were wearing.70 In 1975, Malawi, had allowed the head of each family of the Asians expelled to take out only 500.71 In 1956, Egypt had allowed the thousands of French, British and other British protected persons as well as the stateless Jews to take only 20 per head out of the country. Since, many of them had lived in Egypt for the greater part of their lives, the businesses and personal effects left behind, involved considerable amounts of money. The situation was made worse, when it was reported that some of the expellees had been made to sign a declaration in Arabic (which they did not understand) undertaking not to return to Egypt and renouncing any claim to damages. The Swiss legation at the time described the measures as a "veritable catastrophe"72 Again1, in 1961 when the Greek community were compelled to leave Egypt, at least some E 120 million was at stake. Yet the Nasser Government permitted each to take no more than E20 and a few belongings. Not surprisingly, the Greek Prime Minister protested and demanded prompt payment of indemnity?3

The other aspect of indirect taking resulting from expulsion is where the time period giver: for the aliens to go is so short that practically there is little that can be done. For example, in 1969 when Ghana ordered aliens out of the country within two weeks, of the thousands who began to leave, the Bank of Ghana announced that, not one had applied for transfer facilities.74 In view of the general atmosphere of haste, the large numbers involved and the red-tape of the system itself, this was understandable. Recently, when Nigeria expelled over 2 million foreigners, although the Government did not prevent anybody from taking out his property the two week deadline resulted in reportedly robberies, abandonment of property and refusal by employers to pay least wages and salaries.75

It is our contention that whether the expelling State expressly takes over the expellee's property as in Uganda or he is prevented from taking it as in Libya or even when the expulsion is carried out in such a manner that practically he is forced to abandon the property, an international illegality had been committed and the host state is under obligation to pay compensation. The latter is one of the most vexed issues in international economic law today. Under the traditional formulation, the requirement is to pay "prompt adequate and effective Compensation". This is the position taken mainly by the Western countries, but in practices that standard had not been applied.76 Under the New International Economic Order, particularly the Charter of Economic Rights and Duties of States77 the State taking foreiqn- owned property should pay "appropriate compensation" taking into account'its relevant laws and regulations and all circumstances that it considers pertinent. The Western countries, however, regard this formulation as statement de lege ferenda and not lex lata.78 Whether one takes the traditional position or the NIE0 formulation, one thing is not in dispute - that is some compensation must be paid.


There is already some recognition in state practice of the need to pay compensation for loss caused by expulsion measures. The expulsion of Congolese from Gabon in September 1962 was resolved at a conference in Yaounde chaired by President Ahidjo of Cameroon. It was agreed to indemnify persons who had suffered during the expulsion and the expellees were free to return to the host country.79 Similarly, the expulsion of several thousands of Benin nationals from Niger in December 1963; was resolved in March the following year. It was agreed that the expellees were to be compensated and they were also free to return.80 As part of the settlement of disputes between Egypt and the United Kingdom, it was agreed in February 1959 that Egypt pay the sum of 27.5m towards claims for injury and damage to property suffered by U.K. nationals expelled in 1956.80a Under an Agreement ratified by the Ghana Government in February 1971, Nigeria was to receive "reasonable compensation" for farms and other property left behind by Nigerians expelled in late 1969 estimated to be at about N2.5m.8°b The present Ugandan authorities took steps in 1982 to compensate the dispossessed Asians. Parliament on September 2 passed the Expropriated Properties Act.81 Under the legislation any Asian who returned within 90 days of the passage of the Bill, would have his property restored to him and would have to run it for at least five years before selling it. The property of those who did not return would be sold and the owners compensated out of the proceeds. In early 1984 four of such businesses became joint ventures with shares held by the Uganda Government and the original owners who had returned.81a The Chinese approach, on the other hand, was to terminate all economic and technical aid to Vietnam and to recall its technical personnel on July 3, 1979 because of Vietnam's "anti-Chinese activities and ostracism of Chinese residents".82 That aid in 1976 was said to amount to $330, million. The Chinese said it would be used to resettle the expellees.

iii. Treatment of Expellees

Foreign nationals are entitled to certain rights whilst they are in the host country83 - such protection continues until they leave the last bit of territory of the host. With the exception of political rights, "The International Bill of Rights", particularly the Universal Declaration gives him the same fundamental human rights as the national . Moreover, the protection of human rights as a whole is regarded as having attained the status of ins cogens.84 A State, even when carrying out an expulsion order, is clearly under obligation to ensure that the fundamental rights of the expellees are upheld.

In practice this has not been done. Iraq's expulsion of Iranians from that country in April and May 1969 was carried out with great brutality.Not only were they given too short a notice but also they were taken in buses and dumped at the border towns.85 The Chinese people were "greatly angered". They had been assaulted and robbed.86 Human dignity was not uphbld during the expulsion of Benin nationals from Gabon. Over 6,000 people were forcibly assembled in school grounds near Libreville airport. Their shops were looted and destroyed. People were attacked and injured and thousands of families lost their possessions in the process.87

The enforcement of Ghana's Aliens Compliance Order in 1969 caused a lot of hardship through general panic and delays. The Togo Government temporary closed its border on December 6 saying it could take no more than 40,000 who had already crossed into the country. There were attacks in the markets by young men and shops of aliens fell victim to looting. Police carrying truncheons questioned people who resembled aliens. They also conducted pre-dawn raids through the markets and the residential areas


searching for illegal alines. Reportedly, in some cases, husbands returned from work to find that their wives had been taken away.88

Other examples of ill-treatment can be found in the Nigerian expulsions. The Nigerian Government having refused Libya permission to provide planes for the evacuation, Ghana, whose nationals comprised about 1 million of the expellees, chartered five airlines in addition to its own. There were reports of drowning in Lagos Harbour (Apapa Wharf) ^as people scrambled into the crowded vessels sent by Ghana.89 The expellees were charged inflated prices by bus and taxi drivers only to be "dumped" at the border by the Nigerian drivers. There was shortage of food and water and people had to be treated for cholera and exhaustion. Three women gave birth at Apapa Wharf whilst waiting for evacuation.90 The situation was exacerbated by the initial refusal of Togo and Benin to open their borders for the Ghanaians to cross overland to their country. When the border was opened, Togolese police counted as many as 7,600 vehicles crossing the border and up to 25,000 people crossing on foot, having made the last 100 miles of the journey by foot.

International agencies played an important role in the evacuation of the expellees. The Organization of African Unity sent a team to monitor the evacuation having apprently failed to get the Nigerians to give more time for a more orderly departure.9* U.N. Secretary General Perez de Cuellar called on Nigeria to "slow down" the expulsions and for international assistance to relieve Benin of the burden imposed by the "pressing humanitarian needs". The F.A.0. said it was providing 5 million ration kits worth about $1.5 million. The U.N. High Commissioner for Refugees contributed $300,000 each to Benin and Togo. The British Government granted 150,000 to Ghana and the EEC provided $5 million in early February. The Italian Government also offered $4.5 million. All these aids were co-ordinated by the U.N.Disaster Relief Co-ordinator.92

Under the Universal Declaration, as we have pointed out earlier,93 every person is entitled to return to his country and we may add, through the means available to him. Ghana seemed to have shirked its responsibility by refusing to open the border to its own nationals until three days before the expiry of the two week deadline.94 Whether one takes the view that the obligation to admit back its own nationals is owed to the expelling State alone, or as an actio popularis owed to the international community in general,95 there is little doubt that Ghana's refusal to open the border to its own nationals to return was a breach of its responsibility in international law.This provided the pretext for Togo and Benin not to open their side of the border too, thus leaving its nationals stranded in a foreign country.

iv. Issue of Domestic Jurisdiction

Expulsions have been claimed to be within the domestic jurisdiction of States within the meaning of Article 2(7) of the U.N. Charter. For instance, the Ugandan delegate at the U.N. made such a claim in 1972 arguing that the Asians were a relic of colonialism and a matter essentially within the domestic jurisdiction of Uganda.96 However, because of the potential to threaten international peace and security when large scale violations occur, contemporary international law has raised human rights issues to the level of international concern.97 Thus, though the State's right to expel foreign nationals is recognized, the international community is entitled to scrutinize the actual implementation to ensure that basic human rights are not breached.

[ 1985] AUSTRALIAN INTERNATIONAL LAW NEWS 82

V. CONCLUSION

The following conclusions suggest themselves from our analysis of the study. Firstly, the State has the right to expel foreign nationals residing in the country, individually or collectively. It is doubtful if the State is under obligation to justify it. Even if this were so, the State could always refer to the maintenance of ordre public as the reason for the expulsion. This cannot be seriously challenged. Economic reasons have been prominent for many expulsions, though political reasons were principally responsible for the Libyan, Egyptian and Vietnamese expulsions. Secondly, States have not given the expellees the right to a hearing or a review of their cases as it is normally done in the deportation of individuals.

Thirdly, in exercising its power of expulsion, the State must adhere to the norms of international law. Such limitations on the power to expel include the non-discrimination of any nationality, the non dispossession of the foreigner of his property, directly or indirectly and the observance of fundamental human rights. Although, this may already be the case with regard to individual expulsions, the sheer numbers involved in collective expulsion, as exemplified by the Nigerian case, place and added responsibility on the State carrying out the expulsion to ensure the smooth and orderly movement of the expellees. It may be necessary in some cases to grant a temporary reprieve or an extension of the dealine, as for example in the case of pregnant women and frail children.

Perhaps its time for the international community to begin to seriously consider formulating clear rules on the issue of collective expulsions. It is not enough for the international community to come to the rescue by way of assistance, when people numbering more than the entire population of some U.N. member States, have to be moved in a matter of days. The International Court in the Barcelona Traction, Light and Power Company case,98 pointed out that the obligation to protect human rights are the concern of the international community - they are erga omnes. But when it comes to the actual capacity to protect the victims, we have to look at the regional level, such as the European Human Rights Convention. This makes it more urgent for the international community to come out with basic international procedures for the execution of expulsion orders as these regional human rights conventions have not been developed in some parts of the world.


1. Infra notes 32-34 and accompanying text. Early in 1984 the new Military Regime of General Buhari ordered another large number of aliens to leave the country.

2. Related, but another dimension of the issue, is the expulsion out to sea ofthousands of people seeking refuge. For example in December 1978, a fishing trawler carrying 269 Vietnamese "boat people" was escorted back to international waters by a Singapore Navy gun boat. See The Sydney Morning Herald Dec 19, 1978 For commentary, Johnson, Refugees Departees And Illegal Migrants, 9 SYDNEY LAW REVIEW II (1980); Schaffer, South-East Asian Refugees: The AustralianExperience. 9 AUSTRALIAN YB I. L 200 (1979)

3. MOORE, 4 DIGEST OF INTERNATIONAL LAW 74, WHITEMAN, 8 DIGEST OF INTERNATIONAL LAW 620.

4. Oda, The individual in International Law in M. SORENSEN (ed) MANUAL OF PUBLIC INTERNATIONAL LAW 489, 482 (1968).

5. See eg. Fong Yue Ting v. U.S. 698 (1892); Musgrove v. Chun Teeong Toy (1891)A.C. 272; Nishimura Ekin v. U.S. 142 U.S. 651 (1892). See also infra notes 38-39.

6. E.g. L. OPPENHEIM, INTERNATIONAL LAW vol 1. 611 (8th ed. 1955)7. Hansard, H.C. DEB. vol. 733 col. 1223-5. Cited BRITISH PRACTICE IN INTERNATIONAL

LAW 112-14 (1967).8. U.N.G.A. Res. 2179. Entered into Force Jan 4, 1969. 660 U.N.T.S. 195.

10. Art 5(d).11. Entered into force Jan 4, 1976. The Optional Protocol came into force on

March 28, 1979; similarly, but more broadly, Art 2(2) of the Covenant on Economic, Social and Cultural Rights of 1966 which came into force on March 23, 1976.

12. P. JESSUP, A MODERN LAW OF NATIONS - AN INTRODUCTION 91 (1968). See also,H. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 147 (1950); Newman

I Interpreting the Human Rights Clauses of the U.N. Charter, 5 HUMAN RIGHTS J.283 (1972).' *

13. 1971 1. C.J. REP .16.14. E.g. Waldock, Human Rights in Contemporary Interntional Law and the

significance of the European Convention, in THE EUROPEAN CONVENTION ON HUMAN RIGHTS 1, 15 (1965) (British Institute of Int. R Comp. L., Int. L. SeriesNo. 5); Humphrey, The International Bill of Rights: Scope and Implementation17 WM. P. MARY L. REV. 527. 529 (1976)

15. M. MCDOUGAL, H. LASSWELL and L. CHEN, HUMAN RIGHTS AND WORLD PUBLIC ORDER 327 (1980).

16. KEESING'S CONTEMPORARY ARCHIVES 15391 (hereinafter cited simply as KEESINGS).17. Id. 187368.18. Id 2019119. Id.20. Id.21. Ministry of Interior Directive reprinted in KEESINGS 23824.22. Press Statement issued at Heathrow Airport on his arrival for the Conference

of Commonwealth Heads of State and Government in London. KEESINGS 23186.23. Reprinted in 11 l.L.M. 1388-9 (1972)


24. s.l. Another Decree of October 24 (No.30) of 1972 extended its application to cover Asians holding citizenship of other African countries. Those affected were mainly from Kenya, Zambia, Tanzania, and Zaire.

25. The exemptions were made under 5.1. No. 124 of 1972. s.2 of the principalDecree had given the Minister power to make exceptions by statutory order.

26. The Ugandan Students Union presented a memo on August 21 to the Presidentwhich said in part: "The National Union of Students considered that theGovernment has total responsibility to ensure and guarantee equal protection for all the citizens of this country irrespective of their race, colour, sex, language and religion. It is in this spirit, therefore that the entire student body of Uganda earnestly requestes you to rescind themove of depriving some Ugandan Asians of their citizenship". KEESINGS 25469-70.

27. Id.

28. Id 31847 I29. Id 2514730. Id 29288

31. West Africa June 15, 1981

32. Id Jan 31, 1983 at 245. The figures were estimates. It is well-known that Nigeria does not have accurate statistics for its own nationals, let alone foreigners.

33. Under 3.8(1) of the Act, the prior written authority of the Director of Immigration Was required before employing such foreigners.

34. Cited West Africa Feb 7, 1983 at 386; similarly, The Daily Sketch wrote:Two years ago in France, the houses of illegal African immigrants were destroyed. The immigrants were law-abiding but the mayor of the town where this racist act took place said being law abiding was not everything and that the immigrants must leave to create jobs for Frenchmen. Id.

34. The Sydney Morning Herald August 25, 1984 at 8.35 KEESINGS 1738135a. Id. 2031535b. Exchange of Letters of October 30, 1964; relevant parts reprinted in

KEESINGS 20405. In 1948 these Indians nubmered 950,000. Under the India and Pakistani Residents (Citizenship) Act of 1949, Sri Lanka initially conferred citizenship on no more than 134,188. However the country was to take on some more after the 1964 Agreement. In September this year, the Sri Lanka President announced that his Government has denied to grant citizenship to another 90,000. see The Sydney Morning Herald, Sept 18 (1984) at 7.

36. Id. 29470-1 .37. Supra38. 6 BRITISH DIGEST OF INTERNATIONAL LAW 151

39. 4 M0CRE, INTERNATIONAL ARBITRATIONS 3348


41. The Times and The Guardian Sept 30, 1972. This does not appear to have been successful. But in 1956 the subject was in issue. Whilst Egypt and Sudan argued that the expulsions from Egypt were within the domestic jurisdiction of Egypt, M. Giscard D'Estaing had argued that they contravened the Charter and the Universal Declaration of Human Rights. See U.N.G.A. OR 11 Sep.624th Plenary Meeting at 124-5.

42. 10 U.N.R.I.A.A. 528.

43. 6 BRITISH DIGEST OF INTERNTIONAL LAW 114; see also Davidson's case in 1855,Id. The U.S. called for a detailed justification from the Venezuelan Government as the reason it gave for the expulsion in Loubriel's case in 1923 was too vague. HACKWORTH, 3 DIGEST OF INTERNTIONAL LAW 699-700.

44. Goodwin-Gill, The Limits of the Power of Expulsion in Public Interntional Law 47 B.Y.I.L. 55, 121 (1974-5).

45. KEESINGS 272673.46. Govt Statement of Dec 12 reprinted in KEESINGS 23824

47. West Africa Jan 31, 1983 at 245.

48. Id. editorial.49. Under Arts 2(2) (d) and 27 of the Treaty, member States undertake to remove

all obstacles to the movement of persons within the Community. The ECOWAS Treaty done at Lagos May 28, 1975 is reprinted in 14 I.L.M. 1200 (1975).

50. They were also accused of refusal to integrate into the Ugandan society.The Asians strongly defended these allegations in a memo to the President.See J. O'BRIEN, BROWN BRITONS 32 (1972).

51. 12 ANNUAIRE DE :'INSTITUT DE DROIT INTERNTIONAL 218,222.52. 2 U.N.R.I.A.A. 1113.53. E.g. W.McKEAN, EQUALITY AND DISRIMINATION UNDER INTERNTIONAL LAW (1983)54. I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 513 & n.4 (3rd ed. 1979)

similarly, Schwelb, Some Aspects of International Jus Cogens as Formulated by the International Law Commission. 61 A.J.I.L. 946, 960 (1967).

55. In the Oscar Chinn case, the Permanent Court said, "The form of discrimination which is forbidden is...discrimination based upon nationality and involving differential treatment by reason of their nationality as between persons belonging to different national groups" (1934) P. C.I.J. Ser. A/B No.63 at 87.

56. It was raised by the Nigerian National Concord. Cited West Africa Jan 31, 1983, It was later reported that a number of Pakistanis were leaving through Sokoto and Kano in the northern end of the country.

57. See e.g. Diss. Op. of Judge Tanaka in the South West Africa cases (Second Phase), (1966) I.C.J. 4,284 and the International Court's opinion in the Namibia Opinion, supra note 13.

58. U.N.G.A.O.R. 11th Sess. 624th Plenary Meeting at 125-5; Earlier in 1948 Egypt had contended that the expulsion of Arabs from Palistine in 1948 was contrary to Art 3 and Art 6 of the Universal Declaration U.N.G.A.O.R.3rd Sess. First Committee, 22nd Mtg 868.

59. Generally, B. WORTLEY, EXPROPRIATION IN PUBLIC INTERNTIONAL LAW (1959);G. WHITE, NATIONALIZATION OF FOREIGN PROPERTY (1961); I. FOIGHEL, NATIONALIZATION (1957); K. KATZAROV, THE THEORY OF NATIONALIZATION (1964);S. FRIEDMAN, EXPROPRRIATION IN INTERNATIONAL LAW (1953).

60. Signed on Oct 4, 1972 but made retroactive to Aug 9, 1972 Decree No. 27 reprinted in 11 I.L.M. 1389-91 (1972).


61. s.l.62. s.6.63. s.l. The Assets of Departed Asians Decree (No.27) of 1973. reconstituted

the Abandoned Property Custodian Board as the Departed Asians Property Custodian Board. The latter was to "take over and manage" all assets vested in the Government under the Decree.

64. S.l. Nos. 169 and 197 of 1972 and S.l. Nos 101 and 102 of 1973.65. Award on the Merits para 114-115 and 120 reprinted in 20 I.L.M. 1 (1981)

66. B.P. v. Libya reprinted in 53 I.L.R. 297, 329 (1979).67. In'accord, Wooldridge and Sharma, The Expropriation of the Property of the

Ugandan Asians, 14 IND.J. I. L54 (1974); see also, Id, The Expulsion of the Ugandan Asians and Some Legal Questions Arising Therefrom VII C.I.L.S.A.1 (1974); Read, Some Legal Aspects of the Expulsion in EXPULSION OF A MINORITY ESSAYS ON UGANDAN ASIAN (M. Twaddle ed. 1975).

68. s.1669. Christie, What Constitutes a Taking of Property Under International Law.

38 B.Y.I.L. 307 (1962); Weston, "Constructive Takings" Under International Law: A Modest Foray into the Problem of "Creeping Expropriation1.1 16 VA.J. 1. L103 (1975); Kotecha, Comparative Analysis of Nationalization laws Objectives and Techniques. VIII C.I.L.S.A. 87 (1975)

70. KEESINGS 29470.

71. Id. 2754772. KEESINGS 15391 The Swiss legislation was looking after British interest

at the time.73. Protest made on Feb 16, 1962, KEESINGS 187368.74. The Daily Graphic (Accra) Dec 17, 1969. A few later applied.

75. West Africa Feb 7, 1983 at 305.76. Surveys made by various writers have been consistent e.g. Z. KR0NF0L,

PROTECTION OF FOREIGN INVESTMENT 118-21 (1972); C AMFRASINGHE, STATE RESPONSIBILITY FOR INJURIES TO ALIENS 96-104 (1967); S. FRIEDMAN, supra note 59 at 206-211. Flint concludes on this point: "In the light ofpractice it is difficult to continue to argue that prompt adequate and effective compensation is a norm of international law, if indeed it ever was". D. FLINT FOREIGN INVESTMENT AND THE NEW INTERNATIONAL ECONOMIC ORDER 76 (Martin Place Paper No. 1, 1982).

76b. Dolzer, New Foundations of the Law of Expropriation of Alien Property,75 A.J.I.L. 553 esp 570 (1981).

77. Art 2(2) (c), U.N.G.A. Res. 3281 of 1974 reprinted in 14 I.L.M. 251 (1975).78. E.g. Sole arbitrator in the T0PC0/CALASIATIC v. Libya, Award para 85-87

reprinted in 17 I.L.M. 3 (1978) contra, Chowdhury, Legal Status of the Charter of Economic Rights and Duties of States in LEGAL ASPECTS OF THE NEW INTERNATIONAL ECONOMIC ORDER 79 (K. Hossain ed. 1980).

79. KEESINGS 20191.80. Id.

80a The Agreement is reprinted in H. LAUTERPACHT, THE SUEZ CANAL SETTLEMENT .47 (I960); Art. IV


80b. AFRICA RESEARCH BULLETIN, ECONOMIC AND TECHNICAL SERIES 2. 1982 and 2172 (March 15 April, 14, 1971)

81. Id. 31848.

81a. Id. 7196 (Feb 15 - March 14, 1984).

82. Id. 29470

83. Generally, G. GOOWIN-GILL, INTERNATIONAL LAW AND THE MOVEMENT OF PERSONSBETWEEN STATES Ch.5 (1978); P. WEIS, NATIONALITY AND THE STATELESSNESS IN INTERNATIONAL LAW. (1956).

84. E.g. Judge Tanaka contended: "If we can introduce in the internationalfield a category of law, namely jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to the jus dispositirum, capable of being changed by way of agreement between States, surely, the law concerning the protection of human rights may be considered to belong to the jus cogens". Diss. Op. in South West Africa cases (1966) I.C.J. REP. 4. 298. See also supra the section under U.N. norms.

85. KEESINGS, 23544.

86. KEESINGS 29470. Protest note of May 12, 1979.

87. Id. 29288.88. The Pioneer (Accra) Jan 16, 1970; The Daily Graphic (Accra) July 17, 1970;

for comments, Peil, The Expulsion of West Africacan Aliens, 9J.M0D.AFR.STUDS205 (1971).

89. West Africa Jan 31, 1983 at 243.90. The Guardian Feb 6, 1983 at 7

91. Id.

92. KEESINGS 32610

93. Supra note 8.94. The border had been closed earlier on Sept 21, 1982 due to incidents between

Chana and Togo. But Ghana's main reason for not opening the border was attributed to the fear of the Rawlings Government that Sudanese trained dissidents would infiltrate the ranks of the evacuees to enter the country and to seek the overthrow of the Government.

95. The latter view is taken by R. PLENDER, INTERNATIONAL MIGRATION LAW 74 (1972); see also Higgins, The Right in International Law of an Individual to enter, stay in an leave a Country, 49 INTERNATIONAL AFFAIRS 341 (1973).

96. U.N.G.A.O.R. 27th Sess. Gen. Cttee. 206th mtg; Press Release GA/4618 andGA/4622; see also supra note 41.

97. Reisman and Suzuki, Recognition and Social Change in International Law:A Prologue for Decision making in TOWARD WORLD ORDER AND HUMAN DIGNITY 403 424(W. Reisman and H. Weston ed. 1976); R. HIGGINS, THE DEVELOPMENT OFINTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS 118-130 (1963); M. McCOUGAL, H.LASSWELL, and L. CHEN supra note 15 at 208-215.Contra Watson The Limited Utility of International Law in the Protection ofHuman Rights 74 A.S.I.L. Prodgs 3 (1980).

98. [1970] I.C.J. Rep 3,32.

THE U.S AND THE WORLD ECONOMY:THE NEXT FOUR YEARS*

By William D. Eberle, Richard N. Gardner and Ann Crittenden

IntroductionThe next four years present unprecedented challenges

of economic policy-making to the second Reagan Administration.It faces the urgent need to reduce large and continuing budget deficits, to bring greater stability to international finance, to strengthen a seriously threatened world trading system, to manage a still precarious international debt situation, and to help meet the critical capital requirements of the developing countries. -

Answers to these questions cannot be further evaded or postponed without threatening the welfare of the United States and the cooperative international economic order established at the end of the Second World War. We are living on borrowed money and on borrowed time. For the United States and * for other countries, an economic moment of truth has arrived.

The way in which the Administration handles these . issues will affect the world economy for years to come. For


*( William D. Eberle and Richard N. Gardner are Co-chairmen and Ann Crittenden is Project Director of the program on "Governance in a World Economy" of the Aspen Institute for Humanistic Studies Mr. Eberle, President of Manchester Associates, was U.S. Trade Representative under Presidents Nixon and Ford. Mr. Gardner, Professor of Law and International Organization at Columbia University, was U.S. Ambassador to Italy under President Carter.Ann Crittenden, formerly economic correspondent for The New York Times, writes on economic subjects for a wide range of publications )

This article was provided through the Sydney office of the international attorneys, Coudert Brothers.


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if one thing is still as true as it was forty years ago, it is that the United States, with the strongest economy and the strongest currency in the world, is still at the center of the international economic system. ltd internal economic decisions, for better or for worse, are the greatest single influence on that system. The United States is no longer in a position to write the rules of the international economic game, but it still shapes the economic environment in which everyone else must play.

Although the United States is the key actor, other nations have major policy responsibilities. Europe, Japan and the developing countries have not sufficiently faced up to the hard economic choices essential to their own well-being and that of the global economy. Part of the new reality is that international economic responsibilities will have to be better shared in the future than they have been in the past

There is also a crying need for greater cooperation among the international economic institutions, among economic policymakers in different countries, and among financial, trade and development ministries within countries. The linkages between nations and between policy sectors are now too close for piecemeal management by fragmented jurisdictions.

What is most urgently needed now, as we confront 1985, is not a set of new international initiatives, but fundamental changes in the domestic policies of the key economic players

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Unless these domestic changes are made, whatever international order still exists is in jeopardy. And paramount among these policy shifts has to be the assertion of strong leadership on the part of the United States.

This report is designed to clarify public thinking on the economic issues facing the new Administration and other governments. We maintain that an essential first step in dealing with any of these issues — and the most pressing economic decision facing the second Reagan Administration —

V

is the need for the United States to restore a balanced domestic economic policy.

We therefore propose, as our first recommendation, that the President, as soon as possible, convene a meeting with the leaders of the House and the Senate of both parties to produce a bipartisan deficit reduction package. The reduction of the deficit is not a panacea. But it is a prerequisite for restoring order to an international economic climate that is increasingly characterized by fragmentation and drift. With American leadership putting its own house in order, the outlook is still optimistic. Without it, we risk an.economic crisis of global dimensions. That is the opportunity, and the danger, of the four years ahead.

In the following pages, we offer proposals in the four areas of finance, trade, debt and development None of these issues can be dealt with in isolation. Without improved domestic economic policies in the United States, Europe and Japan, the


[1985j AUSTRALIAN INTERNATIONAL LAW NEWS 91

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world will continue to suffer from high real interest rates, destabilizing capital flows, and volatile and misaligned currency relations. Without a more orderly and rational set of exchange rates, the postwar system of multilateral trade will eventually collapse under protectionist pressures. And without lower interest rates, more open markets, and larger international capital flows, the Third World nations will be unable to service their debts and meet minimum development goals necessary for the fulfillment of basic human needs and the survival of democratic institutions.

I The U.S. Deficit, the Dollar, and the International Monetary System

The single greatest threat to international financial stability today is the present unsustainable course of the U.S. economy. The Congressional Budget Office (CBO) estimates that even assuming a continuation of the current recovery at approximately 3 to 3-1/2 percent real growth over the next five years, and even assuming a 2 percent drop in real interest rates, Federal budget deficits will rise from $182 billion in fiscal 1985 to $263 billion in fiscal 1989. Using CBO projections Martin Feldstein, former Chairman of President Reagan's Council of Economic Advisers, further estimates that even with a 5 percent rate of real growth for the next five years — a record of economic performance we have never come close to achieving — we would still have a deficit of more than $150 billion in fiscal 1989. There is thus no chance

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whatever that we can "grow out of the deficit," unless we make fundamental changes in our tax and spending policies.

Indeed, due to the recent economic slowdown, the Reagan Administration's Office of Management and Budget now estimates the deficit for fiscal 1985 at $210 billion — more than the CBO forecast of $182 billion cited above. Thus the CBO deficit projection seems unlikely to prove too pessimistic And this projection tells us that with the continuation of present policies our national debt, which has already doubled from $700 billion in 1981 to over $1400 billion today, will double again to about $2800 billion by 1989. Annual interest payments on that debt, which were as little as $7 billion in 1960 and $96 billion in 1981, will be $181 billion in this fiscal year.

Our unprecedented deficits reflect a combination of the significant tax reduction of 1981, the explosion in defense spending, the dramatic rise in debt interest payments, and the automatic increases in Congressionally-mandated social programs. Payments on debt interest, defense and Congression ally-mandated entitlements now account for more than 80 percent of the Federal budget. By fiscal 1989, according to the CBO projections, these three items will exceed revenues by $64 billion. This means we will have a deficit even if we eliminate the entire apparatus of national civilian government.

These figures reflect a nation living beyond its means and failing to build for its future. In the verdict of


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the financial markets, these deficits will eventually be monetized by increasing the money supply. The markets also foresee half of our domestic savings used just to finance our deficits, leaving insufficient savings available for the needs of the private sector. Such expectations contribute to high interest rates and to lower levels of private investment, less housing, lower productivity gains, and ultimately to lower growth.

The U.S. budget deficit has serious international ramifications as well. It is being financed by huge capital flows from abroad, money which is needed to help revive the sagging economies of Western Europe and the Third World. The inflow of foreign funds stimulated by high interest rates has pushed up the value of the dollar, with devastating effects on American export industries. The strong dollar has helped produce a staggering trade deficit of more than $130 billion in 1984 which could reach $150 billion in 1985, has already generated protectionist responses and built up tremendous pressure for additional protectionism. Even when service transactions and unilateral transfers are taken into account, our deficit on current account is over $100 billion in 1984 and figures to be near $120 billion in 1985. In short, we are now borrowing $100 billion or more each year from other countries.

Within the next few months, the United States will become a net debtor nation for the first time since 1914. If we continue to borrow from other nations as a result of rising

[ 1989 AUSTRALIAN INTERNATIONAL LAW NEWS 94

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domestic deficits, we will have a net foreign debt in three years greater than that of Mexico, Brazil and Argentina combined — well over $300 billion. We will no longer, as in the past, be able to count on net international investment earnings to finance our trade deficits. On the contrary, we shall have to accept future reductions in our consumption standards to service our growing indebtedness to foreign nations. In a very real sense, present policies are placing a mortgage on the lives of future generations. In plain language, the longer Americans continue to consume more than they produce, the longer they and their children will have to consume less than they produce.

While we tell the heavily indebted developing countries to "put their houses in order," the fact is that under present . policies we could not ourselves qualify for a loan from the International Monetary Fund. And we are manifestly violating our obligations under the Fund's Articles to cooperate with other countries to lessen the extent and duration of imbalances in the international balance of payments.

The present rate of U.S. foreign borrowing, in our view, is unsustainable. It has been wryly remarked that selling bonds abroad has become a major American export industry. Now this has been supplemented by massive borrowing abroad by U S. banks. But will foreigners be willing to finance indefinitely this huge amount of U.S. borrowing? It is misleading to argue that the large amounts of foreign money now in U S. securities and banks "have no place else to go" — some of that money will

_____________________ [1985] AUSTRALIAN INTERNATIONAL LAW NEWS 95-8-

begin to move elsewhere if confidence in U.S. economic management is shaken and investors seek to avoid large losses from an anticipated fall in the dollar. Moreover, a run on the dollar could be precipitated if foreigners become saturated with dollar holdings and become unwilling to go on lending us $100 billion a year of new money. A cessation or even a sharp reduction of our present large inward capital flows would trigger a liquidity crisis, drive up U.S. interest rates and precipitate a collapse of stock and bond prices.

We are not predicting that such a frightening scenario is about to come to pass. At the moment, confidence in the United States and in the dollar remains high, and prospects for a "run on the dollar" seem remote. But a central, characteristic of international finance today is its extreme unpredictability and volatility. Literally anything can happen in a "world monetary system," as Helmut Schmidt has said, which "does not deserve the name." We are also concerned with the political implications of large and continuing U.S. external deficits, which will aggravate Alliance relations and erode the willingness of the American people to bear their share of NATO defense costs and international development financing. We wonder, in short, whether a nation going deeper and deeper into debt to other countries can also remain the world's strongest political power and the leader of the world's democratic forces.

As a crucial first step toward restoring equilibrium in the international financial system, we urge the President to seek a bipartisan consensus with the Congress on a four-year

f 1985) AUSTRALIAN INTERNATIONAL LAW NEWS 96

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deficit reduction package. Such a package will necessarily require compromise from the leadership of both political parties Among the main elements we suggest slowing the rate of real increase in the defense budget to 5 percent, reducing civilian spending through health cost containment and the trimming of farm subsidies, and increasing tax revenues through such devices as the following:

— eliminating the deduction of interest payments except for mortgage interest payments on principal residences up to a ceiling;

— imposing a modest oil import fee and a modest gasoline tax (e.g., $4 per barrel and 20*5 per gallon);

— narrowing the scope of the accelerated depreciation and investment tax credits presently allowed; and

— some form of minimum tax on the economic income of corporations.

We estimate that these tax measures and expenditure reductions could yield between $10O-$12O billion per year between now and fiscal 1989. More will have to be done, but this would r present a reasonable beginning.

Quite apart from its value in raising additional revenue, we consider the first of our tax proposals of special importance for policy reasons. The present deductibility of interest payments (a feature virtually unique to U.S. tax law) artificially stimulates borrowing and raises U.S. and world interest rates; while the deductibility provision cuts the effective rate of interest for wealthy U.S. individuals and corporations, foreign


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borrowers, including the heavily-indebted developing nations, bear the full brunt of the resulting higher interest charges. Elimination of deductibility (except for mortgage interest payments on principal residences up to a ceiling) would help restore better balance to both the U.S. and the world economy.

The second of our tax proposals — the modest oil import fee and gasoline tax — by offsetting recent and likely future declines in world oil prices, would maintain pressures for energy conservation (and provide a modest encouragement to domestic production) without raising U.S. energy costs significantly compared to those prevailing a few months ago

At the same time, other nations need to set in motion complementary policies aimed at restoring some balance to international financial flows. The Western European countries are beginning to recognize that they need to provide more opportunities for productive investment in their own economies — by encouraging entrepreneurship; by permitting the transformation of obsolete industries; by loosening up rigid labor markets; by reducing the role of government in their economies; and in some cases, by easing monetary or even fiscal policy to promote faster growth and more jobs.

Japan needs to relax still further the restrictions on its imports and its capital markets. Stimulation of Japanese internal demand is also essential if Japan is to reduce its huge trade surpluses that have produced so much of the recent protectionist surge in the United States and the rest


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of the industrialized world. Large-scale international borrowing by Japanese government agencies and private £irms could also be encouraged to achieve a better balance of international financial flows and exchange rates.

The developing countries, for their part, will need much more responsible and imaginative economic management than they have had in the past, if they are to adjust to a world of more limited capital flows. This includes better incentives for industrial and agricultural production, more realistic exchange rates, the reduction of public sector deficits and more effective means of keeping what capital they have from leaving the country.

With the increased interdependence which exists today, including the high degree of capital mobility among nations unforeseen at Bretton Woods, it is even more essential that countries adjust their domestic economic policies with a view to maintaining a mutually beneficial world economic system. It is no longer possible to have complete national policy autonomy and maintain an open international system of trade and capital flows. If we wish to preserve the latter we shall have to accept some limitation on the former.

At the 1982 Economic Summit meeting in Versailles, it was decided that Finance Ministers from the key currency countries would meet regularly with the Managing Director of the International Monetary Fund to discuss coordination of macroeconomic and exchange rate policies. This decision was reaffirmed at the Williamsburg Summit. Unfortunately, however,

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 39 -12- ~

there is little evidence to suggest that these decisions have led to a meaningful process of international policy coordination To have any practical result the key currency countries, including the United States, must demonstrate the political will to consider seriously international factors in their domestic policy decisions. We believe the United States should now lead in the establishment of an improved system of multilateral surveillance to review the domestic fiscal and monetary policies of the key currency countries. This is an essential step towards achieving more stable currency relationships in better relation to underlying competitive conditions — an objective as much in the interest of the United States as of its economic partners.

The instrument for such multilateral surveillance, in our view, should be a group such as the Interim Committee of the International Monetary Fund, or possibly the smaller Group of 10. The world is not ready, obviously, for supranational control of national economic policies, nor even, perhaps, for "target zones" of key currencies maintained by a combination of national policy commitments. But we believe a group of Finance Ministers and their deputies should now meet at least every three months, and in special session when circumstances so require, to seek consensus on the changes that are needed in national policies in the interest of international monetary stability. Rules of procedure such as the formal recording of decisions and a process of follow-up monitored by the IMF staff could provide a discipline in the


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current surveillance process that is presently lacking.Intervention in the exchange markets will be of .

limited value if domestic policies are not better coordinatedIf a.more meaningful system of multilateral surveillance isestablished, however, the G-10 countries could, in appropriate

«

circumstances, undertake cooperative exchange market intervention to restore more orderly exchange market conditions and exchange rates more reflective of purchasing power parities

The inportance of establishing international cooperation in the formation of domestic policies cannot be overstated. Financial flows now dwarf trade flows; some $20 to $30 trillion in capital flows now cross the foreign exchange markets in a year, compared with roughly $2 trillion in goods and services. With exchange rates responding to international capital movements and often bearing little relation to trade competitiveness, great pressure is developing to divorce the exchange rates in the capital and goods markets. This separation of rates can be achieved by two means: import restrictions and export subsidies which permit a country to maintain international competitiveness despite an overvalued currency; or taxes and other limitations on free capital movements which dilute the impact of interest rate differentials on the exchange rate. However, either method would undermine the progress which has been made towards an open international trade and investment system, and run the risk of political manipulation and economic inefficiency. It would be far better to avoid


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the need for restrictions through pursuit of more internationally-oriented fiscal and monetary policies within the key trading nations.

II International Trade, the GATT System, and Adjustment Policies____________________________________ ;__________

The overwhelming trend in international trade today is the steady drift toward more managed trade. By one estimate, as much as 50 percent of world trade is under some form of management by governments. A multitude of restrictive trade agreements have sprung up outside the framework of GATT, producing a new climate of uncertainty that is impeding the growth of trade and investment. These bilateral export restraint agreements now cover textiles, steel, autos, shoes, and numerous agricultural products, all in violation of the normal trading rules set forth in the GATT. In addition, countries have increasingly adopted "industrial policies," using direct and indirect subsidies, government procurement policies, foreign investment incentives, export performance requirements and the like. As a result, the concepts of multilateralism and open markets embodied in GATT which have served the world well are in danger of being abandoned barely forty years after their adoption.

Even the United States, which was firmly committed in the postwar era to the principle of open multilateral trade, has been turning recently to regional and bilateral trade agreements — the Caribbean Basin Initiative, a free trade


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agreement with Israel, and a sectoral free trade arrangement now under discussion with Canada. Similar bilateral arrangements have been explored with Saudi Arabia and the ASEAN countries of Southeast Asia. These kinds of agreements may serve a useful purpose provided they are brought within the multilateral framework, which means making them compatible with GATT rules or phasing them out after a fixed time period But if the process of Balkanization of trade continues, it is not an overstatement to suggest that the GATT could become as obsolete as the old Bretton Woods system of fixed exchange rates.

Thus trade policy is at a crossroads. In our view,• .the U.S. should take the lead in renewing the industrialized

nations' commitment to reducing trade barriers in a multilateral framework. It should propose that GATT be updated to face the challenge of bilateral agreements and industrial policies, subjecting both to a multilateral process of notification and surveillance, while it also develops new rules to cover service trade and trade-distorting investment practices

In specific terms, we recommend:1. A new round of multilateral trade negotiations

to extend the GATT's effective mandate to bilateral restraint agreements, industrial policies, services, agriculture, and trade-distorting investment practices.

2. The parties to GATT should work out procedures and rules for the administration of bilateral restraint agreements The GATT should be prenotified of their formation and


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be given authority to exercise surveillance over them, including the monitoring of their impact on all parties. An adjustment plan should be drawn up for the industry or region affected by each agreement and a date set for its termination The GATT should undertake to review each pact periodically to see that the necessary adjustments are taking place on schedule

3. The GATT should establish a new surveillance committee on trade-distorting domestic policies, whether called industrial policies or otherwise. Countries adversely affected by the trade-distorting domestic policies of otherGATT members could question these policies and seek changes, even where no specific violations of existing GATT rules are involved. The committee could seek to develop agreement on which industrial and other domestic policies are consistent with the letter and spirit of the GATT and which are not

4. The United States should practice the economic efficiency it preaches abroad, by granting protection only under specific conditions. Any company or industry seeking import protection from the International Trade Commission or the White House should be required to submit an adjustment plan showing how it will restructure in order to restore competitiveness or get out of the business in question. The plan could include commitments to increase investment in modernized plant and equipment, restrain wage increases and executive compensation, or shift into new lines of production. After a given time period (e.g., 5 years), the protection would automatically expire and not be renewable.


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5. The United States should strengthen its adjustment assistance program for workers displaced by imports, which has been severely reduced in recent years. The revitalized program should put its main emphasis on worker training and retraining rather than the simple income maintenance that was the main feature in past years.

6. The United States should embark on a comprehensive national program to enhance its international competitiveness In addition to a better macroeconomic policy leading to

Vlower interest rates and a properly aligned dollar, this primarily means developing our neglected human capital —

preparing the skilled work force we shall need in future years through more investment in education at all levels, particularly in math, science and engineering. It means encouraging more spending on civilian research and development through tax incentives and government support to universities. It means an anti-trust policy that permits the pooling of research by companies in the same industry. It means tax incentives focused more effectively on promoting new investment in plant and equipment. And it means a strengthened Export-Import Bank that assures American exporters credits and credit insurance fully competitive with that provided by other countries.

In the controversy over whether or not the U.S. should have an "industrial policy,” it is often forgotten that our government is already intervening like a brain-damaged octopus. The challenge is to move from random; politically-

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 105 -18-

motivated actions and subsidies that frequently impede industrial adjustments to more limited and rational interventions that enhance the competitiveness of the United States. It has been estimated that Washington presently dispenses some $100 billion a year to industry directly and in the form of "tax expenditures" without any priorities and virtually no consideration of how these various subsidies combine to affect a given industry or the economy as a whole. For exmple, the United States spends five times more on research and development in commercial fishing than on research and development in the steel industry The government provides a special $500-$600 million annual tax benefit to the timber industry, but no such special tax advantages for semiconductors. It is doubtful whether any national interest is served by the haphazard allocation of national resources that results from this hodge-podge of policies.

7. Accordingly, we recommend an immediate effort by the Council of Economic Advisers to determine exactly how existing government programs of direct and indirect subsidy affect specific industries said the economy as a whole, with a view toward rationalizing the government's already massive intervention in the economy and promoting national competitiveness.

Ill International DebtTo the surprise of many observers, the Third World

debt situation is no worse today than two years ago, when the Mexican and Brazilian payments crises first erupted. The recent successful rescheduling of the Mexican debt has


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provided breathing space, and similar reschedulings may soon be negotiated with other countries. Such reschedulings are useful, but they do not "solve" a crisis that will be with us for decades.

Between $800 and $900 billion of debt is still owed by developing nations; almost $400 billion of it by Latin countries alone. The situation in some of the major debtors —

notably Argentina — is extremely problematic, and elsewhere borrowers such as the Philippines will clearly have grave difficulty in servicing their foreign debts in this decade.

There is a limit to which the major debtors will be willing to maintain austerity policies that sacrifice domestic growth and standards of living for the sake of repaying foreign creditors. Most governments will find it politically and economically impossible to maintain the present adjustment process tinless private and official capital flows combined with expanded export opportunities are available beyond the amounts that are presently foreseeable.

A key issue is where the additional capital is going to come from in the near term pending the restoration of ... economic growth. The commercial banks -- the principal source of the past decade — have made it abundantly clear that they will not be increasing substantially their exposure in the Third World. In 1983, according to World Bank figures, net financial transfers from banks to the developing countries were actually negative by an amount of $11 billion, and in 1984 bank lending to less developed countries has recovered only slightly. Even


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debtor nations who have continued to service their obligationshave been hurt by the widespread resistance to new bank

# •

lending abroad.Some means of restoring the long-term credit avail

able to these countries, and to debtors undergoing major adjustments, must be found. The World Bank estimates, for example, that if the debtor nations are to maintain adequate growth, export, and debt service performances, they will need an annual growth in current debt of about 4-1/2 to 5 percent

It is in the interests of the United States and other industrialized countries to find ways of making this capital available. The economic costs of debt defaults shaking the stability of our banking system or of* vanishing developing country markets for our exports are obvious. Largely because of the economic contraction in developing countries, the United States alone lost $18 billion of exports between 1980 and 1982, which, according to the Overseas Development Council, eliminated approximately 600,000 jobs. Between 1982 and 1983, industrial countries' exports to developing ones dropped by $43 billion. It has been estimated that growth rates in the developed world would have been one half of one percent higher in 1983 if those exports had remained at their 1982 levels

We therefore recommend:1. A doubling of the capital of the World Bank or,

alternatively, the establishment of a Bank subsidiary with a higher "gearing ratio" than that of the Bank itself — i.e., the ability to make loans greater than its total capital.


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2. Greater coordination between the IMF and the IBRD in devising growth-oriented policies for the debtor countries. Much as a troubled industry needs a long-term adjustment plan to put it back on track, these countries need long-term growth strategies, backed by Bank funds, as well asthe Fund's traditional short-term stabilization policies. !

3. A more active role by the World Bank in co- !i{sponsoring new loan syndications with commercial banks to

debtor countries as a means of keeping private capital flowing4. The World Bank, the industrialized countries,

and the heavily indebted countries should cooperate in creating new incentives for direct private investment in the developing countries, including investment insurance and possibly some means of converting debt into equity.

5. The GATT, working with the World Bank and IMF, should seek significant trade barrier reductions on behalf of developing countries.

IV Long-Term DevelopmentIn their relations with Third-World countries, the

United States and other developed nations face both short-term questions of debt repayment and long-term questions of economic growth and political stability. As we move to deal with the former we should not lose sight of the latter.

The real victims of the International economic forces at work today are, as always, the weakest: the poorest countries who perenially bear the heaviest burdens of adjustment

[ 1985) AUSTRALIAN INTERNATIONAL LAW NEWS 109

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The debt burden, the high interest rates, the costly dollar, deteriorating terms of trade and protectionism have combined to erase many of the gains made during the 1960's and 1970's.Current economic forecasts envisage a recovery in Latin America so slow that the per capita income of 1980 will be barely j

iregained by 1990. For sub-Saharan Africa, the World Bank jIiforesees that without action, per capita income in the year j

2000 will actually fall below the level of 1960.Harsh cuts in virtually every Third World budget have

produced sharp declines in spending on health, family planning, education, research, all at the expense of these societies' futures. Similarly, much of the progress in servicing the international debt has come at the cost of many countries' long-term well-being, as they have stripped their forests, depleted their mineral reserves, and preempted their agricultural lands to produce commodities for needed foreign exchange.

With so many of the forces buffeting these countries beyond their control, the international community has a moral obligation to provide some capital transfers back into their economies. Moreover, such assistance is in the industrialized countries' own economic self-interest. The developing countries are among the best customers of the industrialized world —

as much as 35-40 percent of the exports of the developed countries are purchased by the developing countries. As the last three years have demonstrated, when growth lags in the South, the factories in the North are among the first to feel


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it. Moreover, the collapse of democratic forces in countries like Mexico would create a more hostile world environment and. threaten vital U.S. interests.

We therefore urge the following measures:1. The industrial nations should increase the

resources and lending programs of the World Bank and the IMF above the levels presently authorized. Fund conditionality should be made more flexible and more oriented toward longterm structural adjustment.

2. The industrial nations should maintain, in real terms, their past levels of support for the International Development Association, the chief source of concessional development finance for the poorest countries. This would require a change in U.S. policy in favor of a $12 billion Seventh Replenishment of IDA, instead of the current U.S. insistence on a replenishment of $9 billion. The current U.S. policy saves the U.S. less than $250 million per year but costs IDA over $750 million annually from other donors.

3. The industrialized countries should expand their bilateral assistance programs, particularly those that are targeted toward improvements in agricultural productivity, management capabilities, and meeting the basic needs of the poor, including education, health and family planning.

4. Even though we urge an expansion of World Bank and IDA lending, we also urge that these two agencies look more carefully at the market criteria of their loans, to be sure that they are not financing the production of products


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already in world surplus.5. Both developed and developing countries must

devote more attention and resources to helping reduce ThirdWorld rates of population growth. If present trends continue —and they are likely to do so in the absence of greater action —

almostAfrica's half a billion people will grow to/3 billion, India's 700 million to more than 1.2 billion, Mexico's 70 million to 200 million, before stabilizing some time in the next century. Such increases will almost certainly be accompanied by higher rates of abortion and female infanticide and will destroy any hope of economic progress and political stability.

In the final analysis, the developing countries' futures will depend upon their own policies. As Paul Hoffman remarked at the beginning of the Marshall Plan, "only the Europeans can save Europe." The developing countries must get their own economic houses in order, and only their own commitment to wealth-creating strategies, to incentives for industry and agriculture, to improved savings rates, tp better managed public projects, and to more responsive bureaucracies, can assure them a decent future — no matter what the United States and the industrialized world do.

6. The industrialized countries should therefore support efforts by the more successful newly industrializing countries, such as South Korea, to share their experiences with otherdeveloping countries. South-South international development exchanges should be greatly expanded, for they offer


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a depoliticized, collegial setting for the transmission of expertise on economic development. They can provide an attractive alternative to the more paternalistic economic assistance models of the past.

V International Policy Cooperation and International Institutions_________________________________________

There is a widespread sense of disillusionment with existing institutions, and little enthusiasm for establishing new ones. Yet as our previous discussion suggests, there is no way that American interests can be advanced without a greater effort to strengthen the International Monetary Fund, the World Bank, and the GATT, and to get them to work together more effectively. This should be a high priority both for the United States and other countries.

There is also a pressing need for some forum where the interrelated problems of exchange rates, trade, debt and development can be discussed and negotiated among nations. We believe that this can only be accomplished at the highest level, among heads of government, who have the authority to make the critical trade-offs that will inevitably be necessary.

We therefore urge that:1. The industrialized nations should revitalize

the summit process, which in recent years has degenerated into an annual media extravaganza, long on photo opportunities and short on substance The summits now need to be used to put the stamp of approval on package deals or policy tradeoffs in which the seven summit countries take real commitments


-26-

to modify their policies in the general interest. To help assure the followup of these agreements, a small prestigious group of private individuals should be appointed to issue a frank and public report to governments, evaluating their postsummit performance of agreed obligations — a report card, in effect, that could inject some discipline into what has become a superficial and even cynical process.

2. The United States should develop a new mechanism to integrate economic decision-making within the United States government, so that domestic economic management, trade policy, international debt and international development policy are all shaped in harmony with a full understanding of their interrelationships. We strongly urge a bold Presidential initiative to integrate all domestic and international economic policy-making in the White House, under the authority of a senior Presidential advisor working with the appropriate Cabinet officers.

In conclusion, we repeat our appeal for more effective leadership on the part of the United States. Today, as never before, American economic policies have a global impact, and the international consequences of those policies reverberate on the U.S. economy in ways we need to take more seriously. In such a world, the U.S. must act, above all, to reduce its unprecedented budget deficits.

Clearly, the U S has an obligation, both to itself and to the rest of the world, to manage its economic affairs in ways that strengthen, not weaken, the international


-27-

financial and trading system. So do other nations. This will require not only more balanced domestic policies but a greater degree of international cooperation in which every sovereign nation makes its fair contribution to a needed economic adjustment

For too long, American economic policy has been made as if the rest of the world did not exist. That is an illusion which this country no longer has the luxury to entertain. The next four years will require American leadership that is at once more realistic, more consensual, and more sensitive to our domestic responsibilities, than we have ever seen.

Other countries could not reasonably ask for more, and we cannot reasonably settle for less.


-28-

Explanatory Note:This report is the first in a series which will be issued as part of the continuing Aspen Institute program on "Governance in a World Economy." The program brings together government officials, legislators, businessmen, trade union leaders, and scholars in an attempt to build a new consensus on domestic and international economic policy. The report draws substantially upon two seminars held in 1984 — the first, of an American group, which met at the Wye Conference Center from June 8-10; the second, of an international group, which met at the Aspen Campus from August 25-30. While acknowledging their debt to the many useful ideas presented at these meetings, the authors bear sole responsibility for the content of this report.

\ A/i<1

January 22 1985. AUSTRALIA-ETHIOPIA - SEIZURE OF AID*

The Australian Government has concluded that it is most unlikely that any

of the aid items seized last week at Port Assab will be released for

distribution in Eritrea and Tiaray.

Australia ha., lodgea a strong protest with t*-e Ethiopian Government over

the seizure.

Firm representations to the Ethiopian Government are being continued in

an effort to ensure that all seized emergency relief assistance is used

for the people in needy regions according to the criteria by which aid is

normally distributed in Ethiopia.

Australia's representative in Addis Ababa has been instructed to make clear

to the Ethiopian Government that Australia's ovei—riding objective is to

get food quickly to drought victims by the immediate release of the

seized wheat.

I am advised that such items as a drilling rig and motor vehicles seized

at Port Assab along with the food aid are covered by insurance and that

the lodgement of claims for compensation is being considered.

Accordingly, the Australian Government is concentrating its efforts to

get the food aid seized at Port Assab released for distribution as soon

as possible in areas where it is desperately needed.

In the meantime, I have authorised the adjustment of funds within the total

Ethiopian emergency relief budget so that the distribution of food aid

by non-government organisations in Eritrea and Tigray will not be disad

vantaged by the Ethiopian Government's action at Port Assab.

It is important that dispute over the seizure or its reasons does not

deflect us from our over-riding aim of feeding people who are starving.

* (The text of the News Release dated 22 January 1985 of the Australian Minister for Foreign Affairs, the note to the Ethiopian Govt, dated 17 January 1985, and the Press Release dated 16 January 1985 of the Ethiopian Ministry of Foreign Affairs were made available by the Dept, of Foriegn Affairs, Canberra). ...2/

1 will discuss all these matters in Canberra this afternoon with representatives

of non-government aid agencies and other organisations affected by the

Ethiopian Government's action at Port Assab.

The seizure must not b<» ■,| to discourage Australians from their

magnificent response to aooesis by various organisations to assist nearly

eight million starvir.u people in Et^i^pia.. •


Note No.

Tb« Australian Expaaty presents its compliments to the Ministry

of Foreign Affaire cf the Provisional Military Government of Socialist

Etniscia arc nas the r>onou~ to convey to the Ministry tbs text cf e

message/ despatched or. 16 January-/ fro* the Australian Government to the

Government of Ethiopia:

** To* Australian Government has receives representations

fro* Beepers of the Australian public/ the Australian Wneat

beard enc non-governmental relief associations concerned about

humanitarian relief ir. Ethiopia about your Governsent**

arbitrary confiacation cf consignments aooarc tbe ship K.V.

Golden Venture/ which was Destine; for Fort Lucan. Tr.f

Australian Government protests about the.Ethiopian Government1*

action/ which has caused greet concern in Australia. The cargo

consists only of husanitarian supplies which represent the

response of the Australian people to the plight of needy drought

vieiias throughout Ethiopia.

Accordingly/ the Australian Government appeals to the

Ethiopian Government to release the confiscated cargo and allow

it to proceed unimpeded."

Tne Australian Embassy evafls itself of this opportunity to

renew to the Ministry of Foreign Affairs of the Provisional Military

Government of Socialist Ethiopia the assurances of its highest

consideration.

ASMS ALA5A

17 January 1985


r E 7 5 5 5 T A T E M I K T

The Charge d'affaires of Australia vas today

summoned t* the Ministry of foreign Affairs anc ash c

:c transmit to the Australian Government Ethiopia's

strong representatior. regarding the delivery cf materials

and equipment by Australia to armed bandits ir. Ethiopca.i

The Charge d'Affaires vas toid that the action

cf the Australian Government constituted a flagrant

violation of the most fundamental principles cf interna

tional lav, namely non-interference in the internal

affairs of states and respect for .their territorial

integrity. ' .! • '

- t _

I 'This move of the Australian' Government in effect

t

represented an unacceptable challenge 66 the. sovereign

authority of Ethiopia over its territory.

IVhlie Ethiopia has alvays been grateful for the

international relief assistance to drought-strickeni

Ethiopians, it cannot, under any circumstances, compromise

on its unity and territorial integrity. 'I

Sooialist Ethiopia is alvays ready and villing

■* to develop and maintain friendly relations vith all states,

IIii

____ J 2


including Australia err the basis of accepted principles

cf international lav. Vs, therefore, hope that in the

irteres: cf developigg mutually advantageous relations

between the two countries, Aus-traliah vill desist from

actions detrimental to the national unity and territorial

integrity-cf Ethiopia, as veil as curt the activities of

groups perpetrating such actions in its territory.

In this connection, the Ethiopian Government makes_ !

it clear, as it has made its position clear in the past,

that it vill take any steps it deems fit and proper to

prevent the transfer of materials jand equipment to armed

rei>§Ts as veil as stop any unauthorised p.ctivit .y by any■ 1 . ■ ; .. ■

group vithdn Ethiopian territory, j

. !ij Addis Ababa

i January 16, 19S5.

I

1

ALGERIA AND TUNISIATREATIES OP FRIENDSHIP AND UNDERSTANDING AND RELATED DOCUMENTS*

[1985] AUSTRALIAN INTERNATIONAL LAN NEWS 121

Mcret n* 83-37? du 28 mai 1983 portant ratification du traits de fraternite et de conmnie entre la Republique aigerienne ddmocratmtio popuiaire et la Republique tunisienm*, sign** a Tunis le 19 mars 1983.

Le President de la Republique.Sur le rapport du ministre des affaires etrangeres,Vu la Constitution et notammont son article

111-17* ; .Vu la 101 ri* 83-00 dU 21 mai r>83 portant

approbation du traite de fraternite er Concorde entre la Republique algdrienne ctemorrat-ique et popuiaire et la Republique tunisienne, aigne k Tunis le 19 mars 1983 ;

Vu le traite de • ff’ateffiltd et de concords entre la R£pubIIq:i:'» als^rienne dOmoeratique et popnUire «t la R^pubiique tunisienne, slgne k Tunis ie 19 mars1983 ; #

D£cr$te fArt. lef. — Ect fatlfld $t sera public au Journal

officiel de la Republique alg^nenne d^mocratique et popuiaire. le traitO de fraternise et de concorde entre la Republique aigerienne den.oerurique et popuiaire et la K'•pub'ique tunisienne, sign6 k Tunis ie 19 mars 1933.

Art. 2. — Le ^r-=sant ctecret sera publle au Jov 'r.zl Oft>cie! de la Repuoiique aigerienne d^mocrarique et vjuLi>£\

Fait k Ale 23 mai 1983.Chad!! BENDJEDID.

—TRAITE DE FRATERNITE ET DE CONCORDE

La Republique algfiriehne d£mdcfatIcme et popu^ Istr . e';

La R*pabiique tunisienne. .

Ayant 1st eo leur communaut* de destda dani1* Mn 4a Oread Mefhreb Ante,

Consciences de leur appartenance au m<- -.de arabe e: Islamique, au Continent afncaln ■=» de ie n6cesii*-6 de renter-' >r le; liens de rapprochement et de solidarici entre lev- ux Pouples Freres,

Ddsirau.,:e rentorcer la stability e- ia security dans la reg: ;i du Grand Maghreb Ar .be et dans ie monde,

Convalnc 3 de contribuer alnsl k la consolidation des relation.: de volslnage positives et de cooperation fraternei.e existences entre les pays du Grand Maghreb A rib*.

R6solues a ueuvrer. on commun. ponr un d£ve- .oppemcv.: eomp.^mr-at:’ re et global i- Icurc :x j i^ciete.s : .Aidant ainsi aux aspirations de ieurs .suxpeuples v ; ; le progros ci la p.rosp6rite,

Se fond. ::t sur !e traits de fraternite. de bon voLsinage oc de cooperation, slgn6 k Tun... ie o janvuer 1970,

D6tenuin6es k co rguer leurs efforts pour le ren- forcemem de ia justice, de la palx, de la s6curit6 et de ia .inexistence pacif.que dans e monde et a poursuivr. ;eur action pour le respect de 1'application des prlncipes des Nations Unies, de l'O.C.A. et de la Ligue Arabe.

Conva': no; ii’un trai** de fraternity et de concorde imp-ic,.;? n4ce»sairement ie regleraent e* tout Oiii.rc ::i pouv<.:it surglr entre eJes par des moyen- saeiriqi!.:.:. eonrormement a x prin^pe* de la Cha e d-.e Nations unies.

Sont e..T>.venues ues dispositions sulvantre :

Article lerEh rue de renforcer entre les deux pays les relations

paclfiques. fraterneUes et de bon voi.inage. fondles sur leur sppartenanee au Grand Maeareb Arabe et sur leur communauta de destin ainsi que sur le respect des principes de la ieureralnete natlonale, de l’igailfS des drolta dee peuples et de leur droit A disposer d'cux-mAmaa. lee teuitee parties contract

*(The Treaty of Friendship and Understanding between the Algerian Democratic People's Republic and the Tunisian Republic was signed at Tunis on 19 March 1983 (4 Joumada II 1403). The Algerian Decree ratifying the treaty was issued on 28 May 1983. On the same day a treaty delimiting the frontier was signed and ratified by Algeria. The Treaties and the relevant decrees were published in the Journal Officiel de la Republique Aigerienne, 4 June 1983 at 1040-1043, and provided to the Australian International Law News by Mr. A. Kouachi, Second Secretary/ Algerian Enbassy, Djakarta.)


tantes s’engagent k oeuvrer contlnueilement pour le maintien de la paix et de la security entre elles et, d’une facon g6n6rale, entre tous lee pays du Grand Maghreb Arabe.

Article 2Les hautes parties contractantes s’engagent k s’abs-

tenir de recourir a la menace ou k l’emploi de la force pour regler les difftrends qui pourraient surgir entre elles, compte tenu de l’authenticite des liens histo- riques qui unissent les’ deux peuples, en vue de preserver une cooperation frat^rnelle et fructueuse et de maintenir entre elles une paix permanente basee sur le respect mutuel de l’integrite territoriale, de l’lntangibilite de leurs frontiers nationales, de la souverainete et de l’independance politique de chacune d’elles.

Elles s’engagent egalement k r&soudre les difftrends qui pourraient surgir entre elles par la voie de la concertation, de la negociation ou par loute autre vole pacifique.

Article 3Chacune des hautes parties contractantes s’enga-

ge k nadh£rer k aucune alliance ou coalition de earactfcre militalre ou politique avec un ou plusieurs Stats tiers dirigge contre l’independance politique, l’integrite territoriale ou la s6curit6 de l’autre partie contractante.

Chacune des hautes parties contractantes s’engage A ne toierer, sot s6n terrltoire. aucune initiative ou acte decoulant d’une attitude hostile aioptAe par un ou plusieurs autres Etats tiers contre l une d’entre elles.

Article 4

Lee hautes parties contractantes s’engagent k ne pas toierer, sur leur terrltoire, l’organisation et l’acti- vite de groupements qui attenteraient k la s4curlt6 et k i’integrite territoriale de 1’autre partie ou tente- raient par la violence de changer son regime.

Article 5

Chacune des hautes parties contractantes conserve sa pleine liberty d'actlon pour conclure ave : des Etats tiers, tout accord qui ne serait pas con:raire aux dispositions du present traits.

Article 6

Le present traite demeurera ouvert \ TadhAslon, avec l’accord des hautes parties contractantes, aux autres Etats du Grand Maghreb Arabe qui en accep- teraient les dispositions.

Article 1Le present traite sra valable pour un dur4e d-

vingt ans. II sera ratifi& dofifdrm^ment aux procedures cdrtstitutidnfieiiei ih vigueur dans chacune des hautes partial wmrtctOMto, n iAtma el* tliueur 1It lite da l'tehonge dal mitfM&enU da ratification

A l’expiration de la periode de vingt ans, le present traits sera renouveie, par tacite reconduction et pour une m6me duree, k moins que l'une des hautes parties contractantes ne le denonce, par ecrlt, un an au moins, avant la date d'expiration de la period en cours.

Le present traits est etabll en deux exemplairee originaux, en langue arabe, les deux textes falsant egalement fol.

Fait k Tunis, le 4 joumada II 1403 correspondent au 19 mars 1983.

P. la Republique P. la Republiqueaigerienne democratlque tunisienne,

et popuiaire,Chadll BENDJEDID Habib BOURGUIBA

XDecret n° 83-378 du 28 mai 1983 portant ratification

de la convention relative au bornage de la frontiere d’Etat entre la Republique algerienn democratlque et popuiaire et la Republiqu tunisienne, de la Mer Mediterranee k Bir Romane, signee a Tunis le 19 mars 1983.

Le President de la Republique,Sur le rapport du mlnistre dee affaires etfAftgercs*Vu la Constitution et notafnment son article

111-17® ;Vu la lol n° 83-07 du 21 mai 1983 portant

approbation de la convention relative au bornage de la frontiere d'Etat entre la Republique aigerienne democratlque et oopulaire et la Republique tunisienne, de la Mer Mediterranee k Bir Romane, signee k Tunis le 19 mars 1983 ;

Vu la convention relative au bornage de la frontier* d’Etat entre la Republique aigerienne democratlque et popuiaire et la Republique tunisienne, de la Mer Mediterranee k Bir Romane, signee k Tunis le 19 mars 1983 ;

Decrete :

Article ler. — Est ratifies et sera publiee au Journal officiel de la Republique aigerienne democratlque et popuiaire, la convention relative au bornage de la frontiere d’Etat entre la Republique aigerienne democratlque et popuiaire et la Republique tunisienne, de la Mer Mediterranee k Bir Romane, signee k Tunis le 19 mars 1983.

Art. 2. — Le present decret sera publie au Journal officiel de la Republique aigerienne democratlque et popuiaire.

Fait k Alger, le 28 mai 1983.

CnAflll BfflflWKDID

i

CONVENTIONRELATIVE AU BORNAGE DE LA FRONTIERED’ETAT ENTRE LA REPUBLIQUE ALGERIENNE

DEMOCRATIQUE ET POPULAIRE ET LA REPUBLIQUE TUNISIENNE

DE LA MER MEDITERRANEE A BIR ROMANS

La RApublique algArlenne dAmocratique et populaire et ,

La RApublique tunlslenne,

ConaidArant les liens Atrolts d’ordre historique, gAographique, Aconomlque, culturel et social qol ont toujours exists entre les peuples algArlen et tunlslen ainsi que la conscience de leur communautA de destin dans le cadre du Grand Maghreb Arabs,

DAsireuses de renforcer les liens fraternels et de bon voislnage qul unissent les deux pays et de promouvolr entre eux, dans tous les domaines, la cooperation la plus Atrolte et la plus fructueuse,

Soucieuses de contribuer A l’Adlflcation du Grand Maghreb Arabe par la consolidation des relations fraternelles qui unissent les peuples du Maghreb' ainsi que le dAveloppement de leurs relations d’une manlAre harmonieuse et continue,

RAsolues A ceuvrer en faveur du maintlen de la justice, de la paix et de la sAcuritA dans le monde et A conjuguer leurs efforts pour le respect et l’applicatlon des princlpes des Nations Unies et de l’Orga- nisation de lUnltA Africalne. '

ConsldArant que le bornage de la frontlAre commune aux deux Etats, dans le respect du prlnclpe de lTntangillbilitA des frontiAres telles qu’hArltAes aux IndApendances et ce, conformAment A la resolution AHG/16 de 1’O.U.A. qul stipule que <tous les Etats membres s’engagent A respecter les frontiAres exlstant au jour oh 11s ont accAdd A 1’indApendance », est un Instrument prlvllAgiA permettant d’atteindre ces buts,

DAslreuses d’inscrlre leur action dans le cadre du traltA de fratemltA, de bon voislnage et de cooperation, signA A Tunis le 6 Janvier 1970,

Ayant present A l’esprit le trace de la frontlAre tunlso-algArlenne entre Bir Romane et la frontlAre libyenne, signA A Tunis le 6 Janvier 1970,

Bont convenues de ce qul suit:

Article lerLa frontlAre d’Etat entre la RApublique algArlenne

dAmocratique et populaire et la RApublique tunl- sienne, entre la Mer MAditerranAe et Bir Romane, est telle que dAcrlte dans le procAs-verbal signA A Tunis le 19 mars 1983 par les ministres des affaires AtrangAres des deux pays, annexA A la prAsente convention dont 11 est partie intAgrante (1).

Le tracA de la frontlAre, tel que dAcrit au procAs- verbal citA A TalinAa ler du prAsent article, est reportA et figurA par un llsArA rouge sur les cartes numArotAes de 1 A 35 qui sont annexAes A la prAsente 1

(1) Le procAeverbal est annex* I I’ortglnai de la prAsente convention.

convention dont elles sont parties IntAgrantes, en attendant l’Atablissement de cartes dAfinitlves A l’Achelle de l/25.000Ame, conformAment A l’artlcle 6 ci-dessous.

Article ZLes hautes parties contractantes dAsigneront un

groupe technique mixte qui sera chargA de procAder A la vArlflcation des signes matAriels du tracA fron- talier, tel que dAcrit au procAs-verbal visA A l’artlcle ler cl-dessus, au remplacement des bornes disparues et, s’il estime nAcessaire, A rAdlflcatlon de bornes supplAmentaires.

Article 3Les travaux du groupe technique mixte seront consl-

gnAs dans un procAs-verbal, signA par ses deux coprAsidents, qui constatera 1’achAvement de la mission du groupe et fera partie intAgrante de la prAsente convention.

Article 4Le dossier, visA et paraphA, de tous les travaux

prAparatoires de bornage de la frontlAre commune aux deux Etats, est dAposA auprAs de l’organlsme cartographique approprlA de chacun des deux pays.

Article 5Le dossier technique paraphA At/ou signA par les

coprAsidents du groupe technique mixte sera annexA A la prAsente convention et en fera partie IntAgrante.

Le dossier visA cl-dessus comprendra notamment :1) les cartes A l’Achelle l/25.000Ame avec le figurA

du tracA frontaller et de remplacement des bornes ;2) le descriptif dAtaillA de la llgne frontlAre ;3) les fiches signalAtxques des points d’appul et

des bornes frontiAres avec photographies aAriennes renseignAes ;

4) un tableau rAcapitulatif des coordonnAes des points dAfinissant la frontlAre.

Article 6Les hautes parties contractantes Atabllront, en

commun, dans un dAlai maximal d’un an, des cartes aux Achelles de l/25.000Ame sur lesquelles sera report A le tracA frontaller figurA par un llsArA rouge avec indication de remplacement dee bornes. Les cartes feront partie IntAgrante de la prAsente convention.

Les cartes Atablies conformAment aux dispositions de 1’alinAa prAcAdent du prAsent article ainsi que les coordonnAes des bornes serviront de rAfArence pour toute exploitation cartographique.

Article 7La frontiAre terrestre, telle que bornAe aux termes

de la prAsente convention, dAllmlte Agaiement, dans le sens vertical, l’espace aArlen des deux Etats ainsi que 1’appartAnance du sous-sol.

Article 8Les hautes parties contractantes pourront procAder,

eoBjotatement ou unBeAAralement, A l'lnspectton des homes pour s’assurer de leur bon Atat.


Eta cas de destruction, de dAplacemeat ou de dlsparltion d’une ou de plusleurs bornes, tiles procA- deront, conjointement, A leur remise en place ou A leur reconstruction, selon It coordcmAes de ces bornes, telles que prAcisAes conformAment aux dispositions de l’article 5 cl-dessus.

Article 9Les hautes parties contractantes assureront,

conjointement, les charges de l’entretien des bornes qui sont la propriAtA indlvise des deux Etats.

■ Article 10Les hautes parties contractantes prendront les

mesures nAcessaires pour asurer la protection des bornes. En outre, elles pourront engager des poursuites Judiciaires A 1’encontre de toute personne coupable d’avoir endommagA, dAtruit ou dAplacA iesdltes bornes.

Article 11Les hautes parties contractantes s’engagent A res

pecter l’lntanglbllitA de la frontlAre commune aux deux Etats.

Article 12La prAsente convention entrera en vigueur dAs

l’Acuange des Instruments de ratification et sera enregistrAe au secrAtarlat gAnAral des Nations Unles par les hautes parties contractantes ou par l'une ou l'autre d’entre elles, conformAment A l’article 102 de la Charte des Nations Unles.

La prAsente convention est Atablie, en langue arabe et en double exemplaire, les deux textes faisant Agalement foL

Fait A Tunis, le 19 mars 1983.P. la RApublique

algArlenne dAmocratique et populaire,

P. la RApublique tunlslenne,

Chadll BENDJEDID Habib BOURGUIBA

C1985J AUSTRALIAN INTERNATIONAL LAN NEWS 125

ALGERIA AND MAURETANIA

PROTOCOL OF ADHESION OF THE ISLAMIC REPUBLIC OF MARETANIA TO THE TREATY OF FRIENDSHIP AND UNDERSTANDING BETWEEN ALGERIA AND TUNISIA AND RELATED DOCUMENTS*

Me ret a* Si-32 du IS fierier 1984 porta nt ratificationdu protocole d'adbAsion de la RApubliaue islamique de Mauritanle au traitA de fraternltA et de conrorde signA A Tunis le 19 mars 1983 ntre la Republique algArlenne dAmocratique et

populaire et la RApublique tunlslenne, signA A Alger le 13 decembre 1983.

Le PrAsident de la RApublique,;Sur le rapport du minlstre des affaires AtrangArcs,Vu la Constitution, notamment son article 111-17*;Vu le tra!:A de fraternltA et de eoneorde entre

ta RApublique algArlenne dAmocratique et populaire et la RApublique tunlslenne, signA A Tunis le 10 mars 1983, notamment son article 6 ;

Vu la loi n* 83-06 du 21 mal 1983 portant approbation du traltA de fraternltA et de eoneorde entre la RApublique algArlenne dAmocratique et populaire et la RApublique tunlslenne, signA A Tunis le 19 mars 1983 ;

Vu le dAcret n* 83-377 du 28 mal 1983 portant ratification du traltA de fraternltA et de eoneorde entre la RApublique algArlenne dAmocratique et populaire et la RApublique tunlslenne, signA A Tunis le 19 mars 1983 ;

Vu la lot n* 84-08 du 4 fAvrler 1984 portant approbation du protoeole d’adhAsion de la RApublique lslamique de Mauritanle au traltA de fraternltA et de eoneorde signA A Tunis le 19 mars 1983 entre la RApublique algArlenne dAmocratique et populaire et la RApublique tunlslenne, signA A Alger le13 dAcembre 1983 ;

Vu le protocole d’adhAsion de la RApublique lslamique de Mauritanle au traltA de fraternltA et de eoneorde signA A Tunis le 19 mars 1983 entre la RApublique algArlenne dAmocratique et populaire et la RApublique tunisienne, signA A Alger 1*13 dAcembre 1983 ;

PROTOCOL!D’ADHESION OE LA REPUBLIQUE ISLAMIOUEDE MAURITANIE AU TRAITE DE FRATERNITE

ET DE CONCORDE CONCLU A TUNIS LE 4 JOUMADA II 1403

CORRESPONDANT AU 19 MARS 1983

La RApublique algArlenne dAmocratique et pops* laire,

La RApublique lslamique de Mauritanle et

La RApublique tunlslenne,

ConsidArant les liens fraternels et de coopAratloo qui ont toujours uni les peuples aigArien, maurltanlen et tunlslen et leur aspiration constante et profonde A la construction du Grand Maghreb Arabe,

Se rAfArant A Particle 6 du traltA de fraternltA et de eoneorde conclu A Tunis le 4 Joumadah II 1403 correspondant au 19 mars 1983 entre la RApublique algerienne democratlque et populaire et la RApublique tunlslenne qul dispose que « le (prAsent) traltA demeurera ouvert A 1’adhAslon, avec 1‘accord des hautes parties contractantes, aux autres Etats du Grand Maghreb Arabe qul en accepteralent les dispositions >,

Prenant acte de la demand# d’adhAalon A ce traltA formulAe par la RApublique lslamique de Mauritania et de son engagement d'en accepter las dispositions ainsi que de l’accord du Gouvemement de la RApu- bllque algArlenne dAmooratlque et populaire et do Gouvemement de la RApublique tunlslenn# »

Se fAllcitant de la dAmarche de 1# RApublique lslamique de Mauritanle qui eonstltue une contribution importante A la rAaiisatlon du Grand Maghreb Arabe,

Sont convenuas da oe qul suit i

* (The Treaty of Friendship and Understanding between Algeria and Tunisia is published above. The ratifying decree, the proposed, and the frontier demarcation convention were published in the Journal Officiel de la Republique Algerienne,21 Feburary 1984 at pp. 163-165 and were provided to Australian International Law News by Mr. A. Kovachi, Second Secretary, Algerian Embassy, Djakarta. A frontier demarcation agreement with Mali and the ratifying decree are published in the same Journal 4 June 1983 at pp. 1043-1045.)


DAcr&te f

Article ler. — Est ratlflA et sera publlA au Journal official de ia RApublique algerienne dAmocratique et populaire, le protocole d’adhAsion de la RApublique lslamique de Mauritanle au traitA de fraternltA et de eoneorde signA A Tunis le 19 mars 1983 entre la RApublique algArlenne dAmocratique et populaire et la RApublique tunlslenne, signA A Alger le 13 dAcembre 1983.

Art. 2. —• Le prAsent dAcret sera publlA au Journal official de la RApublique algArlenne dAmocratique et populaire.

Fait A Alger, le 18 fAvrler 1984.

Challl BENDJEDID

Article leg

La RApublique lslamique de Mauritanle adhftre au traltA de fraternltA et de eoneorde conclu A Tunis le 4 joumadah II 1403 correspondant au 19 mars 1983 entre la RApublique algArlenne dAmocratique et populaire et la RApublique tunlslenne.

En vertu du prAsent protocole d’adhAelon, la RApu- bllque lslamique de Mauritanle Joutt de tous les droits prAvus par ied)t traltA et s’engage A relnplir toutes les obligations qul en dAcoulent,

Article 2

Le prAsent protocole sera ratlflA conformAment aux procedures constltutlonnelles en vigueur dans chacun des trols pays contractants. U entrera ea vigueur A la date de l’Achange des Instruments de


ratification entre la RApublique algArlenne dAmocratique et populaire et la RApublique tunlslenne. d’une part et la RApublique lslamique de Mauritanle, d’autre part.

Le prAsent protocole est Atabll en trols (3) exemplalres orlglnaux, en langue arabe, chacun des textes falsant Agalement foL

Fait A Alger, le 13 dAcembre 1983.

P. la RApubliquealgArlenne dAmocratique P. la RApublique

et populaire, tunlslenne,Chadll BEND JED ID Habib BOURGUIBA

P. la RApublique lslamique de Mauritanle,

Mohamed Khouna OULD HAIDALLAH—- «» ■

DAcret n 84-33 du 18 fAvrler 1984 portant ratification de la convention relative au bornage de la frontlAre d’Etat entre la RApublique algArlenne dAmocratique et populaire et la RApublique lslamique de Mauritanle, signAe A Alger le 13 dAcembre 1983.

Le President de la RApublique,

Sur le rapport du mlnlstre des affaires AtrangAres,

Vu la Constitution, notamment son article 111-17*;

Vu la lol n* 84-07 du 4 fAvrler 1984 portant approbation de la convention relative au bornage de la frontlAre d’Etat entre la RApublique algArlenne dAmocratique et populaire et la RApublique lslamique de Maurltanie, signAe A Alger le 13 dAcembre 1983 ;

Vu la convention relative au bornage de la frontlAre d’Etat entre la RApublique algArlenne dAmocratique et populaire et la RApublique lslamique de Maurltanie, signAe A Alger le 13 dAcembre 1983 ;

DAcrAte !

Article ler. — Est ratiflAe et sera publlAe au Journal official de la RApublique algArlenne dAmocratique et populaire. la convention relative au bornage de la frontlAre d’Etat entre la RApublique algArlenne dAmocratique et populaire et la RApublique lslamique de Mauritanle, signAe A Alger, le 13 dAcembre 1983.

Art. 2. — Le prAsent dAcret sera publlA au Journal official de la RApublique algArlenne dAmocratique et populaire.

Fait A Aigei, ie 18 fAvrler 1984.

Chadll BENDJEDID

CONVENTION RELATIVE AU BORNAGE DE LA FRO.VTIERE

D’ETAT ENTRE LA REPUBLIQUE ALGERIENNE DEMOCRATIQUE

ET POPULAIREET LA REPUBLIQUE ISLAMIQUE

DE MAUR1TANIE

La RApublique algArlenne dAmocratique et populaire et

La RApublique Islamiqu: de Mauritanle,ConsidArant les liens At._;ts d’ordre gAographlque,

hlstorlque, Aconomlque, culturel et social qui ont toujours exlstA entre le p -uple de la RApublique algArlenne dAmocratique et populaire et le people de la RApublique lslamique de Mauritanle ainsi que la conscience de leur communaute de destln, dans le cadre du Grand Maghreb Arabe,

DAslreuses de consollder les liens fraternels et de bon voislnage qul unissent les deux pays et de promouvolr entre eux, dans tous les domalnes, la coopAration la plus Atrolte et la plus fructueuse,

Soucleuses de contribuer A l’Adification du Grand Maghreb Arabe par la consolidation des relations fraternelles qui unissent les Etats et les peuples du Maghreb ainsi que le dAveloppemer.t de leurs relations d’une manlAre harmonleuse et continue,

RAsolues A ceuvrer en faveur du malntien de la Justice, de la paix et de la sAcurltA dans le monde et A conjuguer leurs efforts pour le respect et l’applicatlon des prlncipes AnoncAs dans les chartes des Natlons-Unies et de TOrganisation de 1’UnltA Africalne,

ConsidArant que le bornage de la frontlAre commune aux deux Etats dans !e respect du princlpe de l’intangibllite des frontiAres. telles qu'hAritAes aux IndApendances et ce. conformAment A la rAsolutlon n* AHG/16 de TOrganisation de 1’UnltA Afrlcatne (O.U.A.), qul stipule que «tous les Etats membres s’engagent A respecter les frontiAres exlstant au jour oA ils ont accAdA A 1’lndApendance», constltue un Instrument privllAglA permettant d’atteindre ces buts,

Sont convenues de ce qul suit ;

Article ler

La frontlAre d'Etat entre la RApublique algArlenne dAmocratique et populaire et la RApublique lslamique de Mauritanle, telle' qu’hArlt'c aux IndApendances respectives des deux Etats, est reprAsentAe par un segment de drolte qul s’appuie sur un point extrAme oriental aux coordonnAes geographlques :

— Longitude : 4° 50’ 00”, 0 Ouest du MArldie-a International,

— Latitude : 25° 00’ 00”, 0 Nordet qul passe, par le puits dlt « Hassl 75», reconnu conjointement par les deux parties pour aboutlr au point d’appui extreme occidental sur le MArldien 8 40’ 00”, 0, chacun de ces trols points AtantmatAriallsA par une borne.


Article 2

Les travaux de bornage seront supervises par la commission mixte aigAro-maurltanlenne de bornage de la frontiAre. Un groupe technique mixte, dAsignA par cette commission, procAdera aux operations de bornage qul devrcnt Atre achevAes avant le ler mars 1984.

Pour la rAalLsation des travaux de bornage, le groupe technique mixte precisera les coordonnAes gAographiques du pults dlt «Hassi 75 > ainsi que la latitude du point extrAme occldentaL

Les hautes parties contractantes pourront dAclder, si necessalre, de construire conjointement des bornes suppIAmentalres dans le respect du tracA frontaller et des dispositions de la prAsente convention.

Les travaux de bornage seront cldturAs par un procAs-verbal paraphA et signA par les co-prAsldents de la commission mixte algAro-mauritanlenne de bornage de la frontlAre.

Article S

Seront Joints en annexe A forlglnal de la prAsente convention dont 11s fr’-ont partie IntAgrante :

1* le procAs-verbal de cidture des travaux de bornage ;

2 les fiches signalAtlques des bornes avec leurs coordonnAes gAographiques ;

3 le. cartes au l/1.000.000Ame et au l/200.000Ame dlspontbies avec report de l’emplacement des bornes et du tracA de la frontlAre ;

4 le rApertoire des coordonnAes des bornes matA- rlalisant la frontiAre entre les deux Etats ;

5* la llste de coordonnAes gAographiques du cheml- nement de cinq minutes en cinq minutes le long de la frontlAre.

Article 4

Le dossier visA et paraphA de tous les travaux prAparatoires de borgage de la frontiAre commune aux deux Etats, est dfeposA auprAs de l’organlsme cartographique national de chacun des deux pays.

Article S

Les hautes parties contractantes Atabllront des cartes communes aux Achelles 1/200.OOOAme et l/1.000.000Ame avec Indication de remplacement des bornes.

Les cartes Atablies conformAment aux dispositions du paragraphe precedent du prAsent article ainsi que les coordonr. es des bornes, serviront dAsormals de rAfArence pour toute exploitation cartographique.

Article 6

La frontlAre terrestre, telle que bornAe aux termes de la prAsente convention, dAllmlte Agalemept, dans le sens vertical, l’espace aArlen des deux Etats ainsi que l’appartenance du sous-sol.

Article 7

Les hautes parties contractantes pourront, si elles l'estiment nAcessalre, procAder, conjointement ou unllatAralement, A l’inspectlon des bornes pour s’assurer de leur bon Atat.

En cas de destruction, de dAplacement ou de dlsparltlon d’une ou de plusieurs bornes, elles procAderont conjointement A leur remise en place ou A leur reconstruction, selon les coordonnAes de ces bornes, telles que dAfinles dans la prAsente convention,

Article 8

Les hautes parties contractantes assureront conjointement les charges de l’entretlen des bornes.

Article 9

Les hautes parties contractantes prendront les mesures nAcessalres pour assurer la protection des bornes. En outre, elles pourront engager deg poursuites judlclaires A l’encontre de toute personne coupable d’avolr endommagA, dAtrult ou dAplacA lesdites bornes.

Article 10

Les hautes parties contractantes s’engagent A respecter l’lntangibllitA de la frontlAre commune aux deux Etats.

Article 11

La prAsente convention sera soumlse A ratification selon les procAdures en vigueur dans chacun des deux Etats.

Article 12

La prAsente convention sera enregistrAe au secrA- tarlat des Nations-Unies, par les parties contractantes ou par l’une d’entie elles, conformAment A l’artlcle 102 de la Ch&rte des N&tions-Unles.

' La prAsente convention est Atablle en deux (2) exemplalres orlgln&ux, en langues arabe et franqalse, les deux textes falsant Agalement foL

Fait A Alger, le 13 dAcembre 1983.P. la RApublique P. la RApublique

algArlenne dAmocratique lslamique de Mauritanle et populaire,

Mohamed Khouna Chadll BENDJED1D OULD HAIDALLAH


LIBYA-MOROOCO - TREATY ESTABLISHING THE ARAB-AFRICAN UNION OF STATES*

On 13 August 1984 at Oujda, in Morocco, the Libyan Head of State, His Excellency Colonel Muammar Qadhafi and His Majesty King Hassan II of Morocco concluded a treaty which was subsequently approved by the General People's Congress of Libya and in a referendum in Morocco on 31 August 1984. The treaty came into force on 1st September 1984. In its recitals the treaty notes the dangers confronting the Arab nation and Moslem world in general and Palestine and Jerusalem in particular and the need to achieve an identity of view. It takes into account the obstacles facing the materialisation of Arab unity proven by the failures of previous experiences. It noted in particular the solid ties eixisting among the peoples of the Mahgreb. It considered that a union would be likely to be a starting point for larger structures to serve Arab and Moslem unity.

The following is an inofficial translation of the provisions of the treaty.

The Socialist People's Libyan Arab Jamahiriya and the Kingdom of Moroccohave signed a Treaty towards the establishment of an Arab-African Union, thisAgreement based on the following 16 Articles:

1. To form a Unity, based on the Agreement between the Kingdom of Morocco and the Socialist People's Libyan Arab Jamahiriya, to be called the "Arab- African Union".

2. His Highness, the King of Morocco, and the Leader of the Great Al-Fateh Revolution will jointly comprise the Presidency being the highest body, in order to issue decisions.

3. There will be a Secretariat under the Presidency having reciprocal representatives from the two different nationalities in each other's countries. The Secretary of the General Union will service for approximately two years.

4. The Union will consist of the following Assemblies:Political, Defence, Economical, Technical and Cultural.These Assemblies will be formed in accordance with the highest Authority which shall nominate two representatives from each country. Each Assembly will be responsible in its field to study all projects given by the Authority.

5. The Union will have a Diplomatic Mission, based on members of the Moroccan Parliament and members of the General People's Congress of the Socialist People's Libyan Arab Jamahiriya, to participate in the making of orders.

* (The unofficial translation of the treaty was provided by Mr. Ibrahim M. Sager, of the Socialist Peoples Libyan Arab Jaahiriya, Canberra. .


6. The Union shall have an Acting Committee formed from members of the Moroccan Parliament and the General People’s Congress of the Socialist People’s Libyan Arab Jamahiriya in order to achieve all decisions made by the President. The Acting Committee will meet in a different country each time.

7. The Union shall have a Judicial Committee to act in case of a dispute over the Articles executed under this Treaty, and gives the right to both sides•in presenting their complaints. All orders should be justified.

8. The objectives of the Union shall be:. to strengthen brotherly relations between the two peoples. to enhance Arab nationalism and defend its legitimate rights. to achieve peace based on equality and justice. to pursue a bilateral political method in all fields. to work towards the unity of the Moroccan people and then to achieving

a united Arab nation.

9. The objectives of the bilateral political method, mentioned in the previous Article are:. to enhance the good and brotherly relations and establish good

bilateral diplomatic aid.• in the field of defence:

. to protect the independence of the two countries• in the field of economics:

. to achieve the industrial, agricultural, commercial and social development of the two countries

. to create common establishments, in order to accomplish the above-mentioned developments

• in the cultural field:. to develop education in all areas, in defending the spiritual

and moral values according to the learning of the ’’Quran” and to protect the identity of the Arab nation..

. to exchange teachers and students, and create common establish. ments in social, cultural and special research, in order to meet

all the Union’s requirements.


10. The Union will have an administrative budget and another budget for development.

11. The two countries will respect each other’s legitimate rights and have no right to interfere in the internal affairs of the other country.

12. Any invasion of either of the countries will be considered as a common one.13. . The Union shall not stop any similar Agreement from being signed between

other countries, on condition that it will meet both countries’ acceptance.14. The President will appoint a Special Committee to understudy all the

projects and supplementary Agreements mentioned above, awaiting the President’s approval.

15. A representative from each country shall be either a Minister or Resident Secretary.

16. The Union shall be effective after the approval of the peoples of the Kingdom of Morocco and the Socialist People’s Libyan Arab Jamahiriya, this approval being made by a referendum in accordance with the procedures of each country.

This was revised in Wajdah City, Morocco, on Monday 16 Zouka’da (Hijra)1404 - 13th August, 19.84.


UNITED KINGDOM AND SOOTH AFRICA

Persons seeking refuge in the British Consulate, Durban: British Statement23 October 1984*

WITH PERMISSION, MR SPEAKER, I WOULD LIKE TO MAKE A STATEMENT ABOUT RECENT DEVELOPMENTS AFFECTING OUR RELATIONS WITH SOUTH AFRICA.

SIX MEMBERS OF THE UNITED DEMOCRATIC FRONT AND THE NATAL INDIAN. CONGRESS ENTERED THE ERITISH CONSULATE IN DURBAN ON 13 SEPTEMBER AND SOUGHT AN INTERVIEW WITH THE CONSUL. THEY SUBSEQUENTLY REFUSED TO LEAVE AND SOUGHT * 'TEMPORARY REFUGE" IN THE CONSULATE. HAVING REGARDTO THE HUMANITARIAN CONSIDERATIONS, THE GOVERNMENT DECIDED TO REFRAIN FROM EVICTING THEM.

THE HOUSE WILL KNOW THAT ON 6 OCTOBER THREE OF THE SIX VOLUNTARILY LEFT THE CONSULATE.

ON 7 OCTOBER ONE OF THE THREE MEN REMAINING IN THE CONSULATE GAVE AN INTERVIEW TO A REPORTER REPRESENTING INDEPENDENT TELEVISION NEWS, USING A RADIO TRANSMITTER WHICH HAD EEE'N SMUGGLED INTO THE BUILDING THIS INTERVIEW' FOLLOWED PREVIOUS INCIDENTS IN THE CONSULATE INVOLVING CLANDESTINE PHOTOGRAPHY, AT WHICH TIME WE PROTESTED TO THOSECONCERNED. FOLLOWING THE ITN INTERVIEW WE SOUGHT AN ASSURANCE FROM THE THREE THAT THERE WOULD PE NO REPETITION OF'THIS BEHAVIOUR WHICH WAS CLEARLY AN ABUSE OF THE CONSULAR PREMISES. THE THREE DECLINED TO

GIVE SUCH AN ASSURANCE AND HAVE STILL NOT DONE SO. SUBSEQUENTLY (ON 18 OCTOEER) THE THREE ISSUED - THROUGH THEIR LAWYERS - A STATEMENT • CONTAINING VARIOUS DEMANDS, SOME DIRECTED AT THE SOUTH AFRICAN AND SOME AT THE BRITISH GOVERNMENT.

WHEN THE SIX FIRST SOUGHT REFUGE IN THE CONSULATE THERE WAS NO SUGGESTION THAT THEY WOULD INDULGE IN POLITICAL ACTIVITY, WHICH IS CLEARLY AN ABUSE OF CONSULAR PREMISES. THE ASSURANCE WE HAVE SOUGHT THAT THESE ACTIVITIES WOULD CEASE HAS NOT BEEN FORTHCOMING., ON THE CONTRARY. IT IS CLEAR FROM THE STATEMENT ISSUED ON IP OCTOBER THAT THE THREE INTEND TO CONTINUE THEIR POLITICAL ACTIVITIES IF THEY CAN.

MUiis is the text of a stagement by Mr. Malcolm Rifkind, Minister of State for Foreign and Commonwealth Affairs in the House of Cannons on Tuesday, 23 October 1984.Selected supplementary questions and answers follow. The document was made available by Mr. M S. Hone, Second Secretary, British High Commission, Canberra


IT HAS ALSO EECC-'E INPCSSIFLE FOR CUR CONSULATE IK DURFA1. TO CARRY OUT MANY OF ITS FUNCTIONS IN THE CIRCUMSTANCES CREATED BY THE CONTINUED SIT-IN. THE CONSULATE IS ONE OF THE SMALLEST POSTS IN THEDIPLOMATIC SERVICE. IT NORMALLY HAS ONLY ONE UK-BASED OFFICER THE ACCOMMODATION IS CORRESPONDINGLY SMALL At:D WAS NEVER DESIGNED FOR RESIDENCE. THESE DIFFICULTIES MUST ALSO BE TAKEN INTO CONSIDERATION.THEY ARE NOT A DECISIVE FACTOR BUT, ADDED TO THE PROBLEMS CREATED BY THE POLITICAL ACTIVITIES OF THE THREE, THEY PRESENTED US WITH AN UNACCEPTABLE SITUATION.

IT WAS FOR THESE REASONS THAT WE DECIDED THAT, AS WAS ANNOUNCED ON 21 OCTOBER, WE CAN NO LONGER ALLOW THE THREE TO RECEIVE VISITORS,OTHER THAN DOCTORS WHEN NECESSARY, AND THAT EECAUSE OF THE GROWING DIFFICULTIES THAT HAVE ARISEN AS A RESULT OF THE SIT-IN, THE WORK OF THE CONSULATE MUST NOW BE CONSIDERABLY REDUCED. THERE IS INDEED LITTLE OPTION. THE SITUATION OF THE PAST DAYS HAS PREVENTED NORMAL WORK FROM EE I MG CARRIED OUT. .

WE HAVE ALSO MADE CLEAR THAT ANY DISTURBANCES CAUSED BY THE ACTIVITIES OF, OR ARISING FROM THE PRESENCE OF THE THREE IN THE CONSULATE, OR BY OTHERS OUTSIDE IT, WOULD CAUSE US TO REVIEW OUR POSITION IMMEDIATELY.

! THE SOUTH AFRICAN GOVERNMENT ANNOUNCED IN SEPTEMBER THAT BECAUSE OF WHAT IS DESCRIBED AS OUR ATTITUDE TO THEIR REQUEST THAT WE SURRENDER THE SIX OR PERMIT THE SOUTH AFRICAN AUTHORITIES TO ARREST THEM IN THE CONSULATE. THEY REGARDED THEMSELVES AS ABSOLVED FROM THEIR UNDERTAKING TO A UNITED KINGDOM COURT TO ENSURE THE RETURN TOTHE UK OF FOUR SOUTH AFRICAN CITIZENS CHARGED WITH OFFENCES UNDER CUSTOMS AND EXCISE LEGISLATION. AS THE HOUSE NOW KNOWS, THESE MENDID NOT APPEAR YESTERDAY AS REQUIRED TO DO SO BY THE COURT. THE COURT MADE IT CLEAR THAT IN ITS VIEW, SOLEMN PROMISES HAD BEEN BROKEN BY THE SOUTH AFRICAN GOVERNMENT AND ACCORDINGLY ORDERED THAT ALL THE BAIL BE FORFEITED, AMOUNTING IN TOTAL TO POUNDS STERLING 4^0,000, AND THE COURT ISSUED WARRANTS FOR THE ARREST OF THE FOUR.

I CALLED IN THE SOUTH AFRICAN AMBASSADOR THIS MORNING. I CONVEYED TO HIM THE GOVERNMENT'S STRONG CONDEMNATION OF THIS BREACH OF FAITH.I ALSO TOLD HIM THAT, FOLLOWING THE ISSUE OF WARRANTS FOR THE ARREST OF THE FOUR DEFENDANTS, WE NOW EXPECTED HIS GOVERNMENT NOT TO IMPEDE THEIR APPEARANCE IN COURT.


THE FOLLOWING ARE SELECTED SUPPLEMENTARY QUESTIONS AND ANSWERS TO

MR .RIFKIND’S STATEMENT!

IN ANSWER TO A QUESTION BY MR-DONALD ANDERSON, MR RIFKIND SAID:

MAY I BEGIN BY UTTERLY REJECTING THE ABSURD CHARGE OF COLLABORATION THAT THE HON GENTLEMAN HAS SOUGHT TO SUGGEST TO THE HOUSE IT IS A MOST EXTRAORDINARY ALLEGATION AND CERTAINLY ONE THAT ANY OBJECTIVE COMMENTATOR ON THE EVENTS OF THE LAST FEW WEEKS WOULD NOT BEGIN TO SUGGEST WITH ANY DEGREE OF SERIOUSNESS.

IF I CAN NOW RESPOND TO SOME OF THE SPECIFIC POINTS THE HG RAISED, HE IS CORRECT TO INDICATE THAT A NUMBER OF THE ACCUSED IN THE COVENTRY CASE ARE STATE EMPLOYEES IN SOUTH AFRICA AND SO FAR AS WE ARE AWARE, INDEED THE SOUTH AFRICAN GOVERNMENT THEMSELVES HAVE SAID, THAT IT WAS A DECISION OF THE SOUTH AFRICAN CABINET NOT TO REQUIRE THEM TO RETURN TO THE UNITED KINGDOM. THE HG HAS REFERRED TO THE REPORTED COMMENTS OF THE SOUTH AFRICAN FOREIGN MINISTER,THAT THEY HAVE EMERGED WITH DIGNITY FROM THE COURT PROCEEDINGS YESTERDAY. I CAN ONLY SAY IN RESPONSE TO THAT COMMENT, IF IT IS CORRECT, THAT THE SOUTH AFRICAN GOVERNMENT THROUGH THEIR COUNSEL SOUGHT TO PERSUADE THE BRITISH COURT THAT THE SOUTH AFRICAN GOVERNMENT WERE ENTITLED TO REQUIRE THE MEN TO DISHONOUR THEIR PLEDGE TO RETURN TO THE UNITED KINGDOM. IT WAS SUGGESTED TO THE BRITISH COURT THAT THIS WOULD JUSTIFY NO ORDER FOR THE FORFEITURE OF THE BAIL MONEY. THE BRITISH COURT TOTALLY REJECTED THAT CLAIM, ORDERED THE TOTAL FORFEITURE OF THE MONEY CONCERNED AND ORDERED THE INSTANT PROVISION OF WARRANTS OF ARREST FOR THE FOUR. THAT, I BELIEVE, SUMS UP THE POSITION SO FAR AS THE COURT IS CONCERNED.

THE HG HAS ASKED ME WHETHER HMG EVER EXPECTED THE FOUR TO 3E RETURNED TO THE UK TO STAND TRIAL. I MUST REMIND THE HG THAT WHEN THE QUESTION OF BAIL WAS CONSIDERED BY THE COURT THE PROSECUTION, REPRESENTING CUSTOMS AND EXCISE, OPPOSED THE GRANTING OF BAIL IN THIS CASE. THE DECISION TO GRANT BAIL WAS A DECISION OF THE COURT AND CLEARLY THE HG WOULD NOT EXPECT ME TO COMMENT FURTHER ON THAT.


THE Ho HAS ASKED WHETHER WE WOULD CONSIDER AT THIS STAGE THE ENDING OF THE NO-VISA AGREEMENT WITH SOUTH AFRICA I DO NOT BELIEVE THAT WOULD bE AN APPROPRIATE COURSE OF ACTION TO TAKE AND I 'WOULD KEN.IND THE Ho THAT THERE ARE APPROXIMATELY ONE MILLION SOUTH AFRICAN CITIZENS WHOSE LINKS, FAMILY LINKS AND OTHER LINKS WITH THE UK WOULD MAKE THEM NOT BE SUBJECT TO ANY VISA AGREEMENT EVEN IF ONE WAS TO BE APPLIED, AND THEREFORE THIS PARTICULAR RESPONSE WOULD REALLY BE A MOST IMPLAUSIBLE .WAY OF DEALING WITH THE PROBLEMS OF PEOPLE COMING FROM SOUTH AFRICA EVEN IF THE GOVERNMENT WAS CONTEMPLATING TO CONSIDER ACTION OF THAT KIND.

FINALLY, THE HG CONCLUDED BY SUGGESTING THAT CONDITIONS IN THE CONSULATE ARE NOW WORSE THAN DETENTION IN SOUTH AFRICA, IN RESPECT OF VISITS BEING PERMITTED TO THOSE WHO ARE RESIDENT IN THE CONSULATE AT THE PRESENT TIME. MAY I REMIND THE HG THAT THOSE WHO ARE IN THE CONSULATE, ENTERED THE CONSULATE AT THEIR OWN CHOICE, CAN LEAVE IT AT THEIR OWN CHOICE AT ANY TIME, AND ARE IN NO WAY CONSTRAINED BY ANY ACTION OF HMG, SO FAR AS THEIR PRESENCE IN THE CONSULATE IS CONCERNED. WE HAVE INDICATED TO THEM THAT WE WOULD LIKE THEM TO LEAVE, THAT THEY ARE IMPEDING THE NORMAL 'WORK OF THE CONSULATE. WHAT WE HAVE NOT BEEN PREPARED TO DO IS FORCIBLY EVICT THEM AGAINST THEIR WILL FOR THE HG TO MAKE ANY COMPARISONS WHATSOEVER WITH THE POWERS OF DETENTION AVAILABLE TO THE SOUTH AFRICAN GOVERNMENT SHOWS HOW LACKING IN OBJECTIVITY HIS REMARKS TODAY HAVE BEEN.

RUSSELL JOHNSTON: GIVEN THAT ONE ACCEPTS THAT THE CONSULATECANNOT BECOME THE BASIS OF POLITICAL ACTIVITY, SHOULD THE DUR3ANthree give the assurances which the government have sought? what

DOES THE MINISTER’S STATEMENT MEAN WHEN HE SAYS THAT A REVIEW WOULD TAKE PLACE IF DISTURBANCES HAPPENED NOT DIRECTLY CAUSED BY THE THREE? I THINK HE REFERRED TO THEM ARISING FROM THE PRESENCE OF THE THREE, OR CAUSED BY OTHERS OUTSIDE. COULD HE PLEASE EXPLAIN IN OTHER WORDS HE APPEARS TO BE SAYING, THAT A REVIEW MIGHT TAKE PLACE FOR REASONS THAT THEY MIGHT NOT BE DIRECTLY RESPONSIBLE FOR. AND SECONDLY ON THE QUESTION OF THE WEAPONS SMUGGLERS, COULD HE PLEASE EXPLAIN WHY IT IS THAT SUCH A DISGRACEFUL ACTION, OFFICIAL AND OPEN,OVERT, DISGRACEFUL ACTION BY THE SOUTH AFRICAN GOVERNMENT DOES NOT JUSTIFY THE RECALL OF OUR AMBASSADOR?


>A KIF*\I.\D: WITH REGARD TO THE FIRST QUESTION RAISED BY THE HG WEARE CONCERNED ThAT THE CONSULATE SHOULD BE ABLE TO BE USED FOR ITS NORMAL CONSULAR PURPOSES AND ANYTHING THAT IMPEDES THAT CLEARLY IS TO BE REGRETTED AND DEPLORED. IF THERE IS, IN ANY FOR.'i, ACTION WHICH IN ADDITION TO THE ADMINISTRATIVE PROBLEMS CAUSED MAKES THE USE OF THE CONSULATE ESSENTIALLY ONE RELATED TO PARTISAN POLITICAL ACTIVITY IN SOUTH AFRICA, THAT WOULD BE IN A CLEAR BREACH OF THE INTERNATIONAL OBLIGATIONS UNDER WHICH CONSULATES OPERATE IN ANY COUNTRY AROUND THE WORLD AND THEREFORE WE HAVE HAD TO INDICATE THAT ANY ACTION IN THE FUTURE WHICH DOES RESULT IN THE INCOMPATIBILITY OF THE USE OF THE CONSULATE WITH OUR NORMAL INTERNATIONAL OBLIGATIONS WOULD HAVE.TO LEAD TO AN IMMEDIATE REVIEW OF OUR POSITION BY HMG. SO FAR AS THE SECOND POINT THAT THE HG HAS RAISED, THE NON-COMPLIANCE BY THE SOUTH AFRICAN GOVERNMENT WITH THEIR SOLEMN COMMITMENT TO THE COURT HAS LED TO THE FORFEITURE OF APPROXIMATELY HALF A MILLION POUNDS. HMG HAS MADE QUITE CLEAR OUR VERY STRONG CONDEMNATION OF THE SOUTH AFRICAN ACTION AND WE HAVE SAID TO THE SOUTH AFRICANS THAT IN VIEW OF THE WARRANTS FOR ARREST OF THE FOUR THAT THE COURT HAS ORDAINED THAT WE EXPECT THE SOUTH AFRICAN GOVERNMENT TO TAKE NO FURTHER ACTION TO IMPEDE THE RETURN OF THE FOUR TO THE UK IN ORDER THAT THEY MIGHT STAND TRIAL.

NORMAN BUCHAN: ARE THESE NOT SHAMEFUL AND WEASEL WORDS TO COMEFROM A BRITISH MINISTER AT THE DISPATCH BOX. IT PUTS HIM RATHER TO THE RIGHT OF PALMERSTON. HE SAYS, DOES HE NOT, THAT IF THEY WERE FREE THEY WOULD INDULGE IN POLITICAL SPEECHES, 3UT THEY ‘WILL NOT ALLOW THEM IN THE CONSULATE. DOES HE NOT KNOW THAT THIS IS A NONSENSE, THAT IF HE SILENCED THEM HE IS CONDONING THE ACTION OF THESOUTH AFRICAN GOVERNMENT, HE IS SILENCING THEM, HE IS CENSORING THEM, HE EQUALLY IS CONDEMNING THEM UNDER THE SAME POLITICAL VINDICTIVENESS THAT THE SOUTH AFRICAN GOVERNMENT HAS DONE IN THE PAST WOULD HE NOT 3E BETTER TO SEND A MESSAGE TO THE SOUTH AFRICAN GOVERNMENT AMONG OTHER THINGS SAYING HE WILL DEFEND THE RIGHT TO SPEAK FREELY AND TO SAY HOW PROUD MANY OF US WERE IN BRITAIN AT THE HONOURING OF BISHOP TUTU, WHO RATHER STANDS UP FOR THE CIVILISATION OF SOUTH AFRICA RATHER BETTER THAN HE IS TODAY.


MR RIFHND* I THINK ALL MEMBERS C'F THIS HOUSE WILL SHARE THE HG'S CRITICISM OF THE SOUTH AFRICAN LAWS THAT PERMIT DETENTION WITHOUT TRIAL, THAT IS NOT A POINT WHICH IS IN ISSUE, THE ONLY POINT WHICH IS IN ISSUE IS WHETHER IT.WOULD BE APPROPRIATE OR INDEED EVEN POSSIBLE FOR ANY GOVERNMENT WITH A CONSULATE IN A FOREIGN TERRITORY TO PERMIT THE USE OF THAT CONSULATE FOR PARTISAN POLITICAL ACTIVITIES. NOW THE HG MUST BE AWARE THAT IT WOULD BE QUITE CONTRARY, WHETHER WE WERE DEALING WITH SOUTH AFRICA, THE SOVIET UNION OR ANY OTHER COUNTRY AROUND THE WORLD, TO ALLOW POLITICAL SPEECHES OR STATEMENTS TO EMANATE FROM A BRITISH CONSULATE OR OTHER BRITISH DIPLOMATIC PREMISES. THE HG CAN MAKE COMMENTS ABOUT THE LAWS . .OF DETENTION IN SOUTH AFRICA, MANY OF WHICH I MIGHT AGREE WITH, BUT IT DOES NOT ALTER THE FACT THAT WE HAVE NO CHOICE BUT TO INSIST

THAT IF WE EXPECT OTHERS TO RESPECT THE INTERNATIONAL LAWS SO FAR ASTHE USE OF DIPLOMATIC PREMISES IN THE UK ARE CONCERNED THEN WE ALSO HAVE TO ACCEPT OUR OBLIGATIONS, AND THAT WE ARE DETERMINED TO DO

UOHN CARLISLE: WILL MY RHF ACCEPT THAT WHATEVER THE HUMANITARIANGROUNDS THE GOVERNMENT DID COMMIT A SERIOUS ERROR OF JUDGEMENT IN ALLOWING THE DURBAN FUGITIVES TO REMAIN ONCE THEIR POLITICAL PURPOSE HAD BECOME CLEAR AND THAT THE ONLY WAY OUT OF THIS PARTICULAR DISPUTE NOW IS FOR THEM TO BE FORCIBLY REMOVED. WOULD HE NOT ALSOAGREE THAT, AGAIN REGRETTABLE THOUGH THE DECISION IS, BY THE SOUTHAFRICAN GOVERNMENT, IT IS TOTALLY DEPLORED BY BOTH SIDES OF THIS HOUSE, FOR THOSE FOUR NOT TO RETURN TO TRIAL TO COVENTRY. THE - STUPIDAND IGNORANT INTERVENTION OF THE HON MEMBER FOR SWANSEA IN HIS VISIT TO SOUTH AFRICA HAS ACTUALLY MADE THE SITUATION WORSE AND HAS NOW POSSIBLY GIVEN SOME CREDIBILITY TO THE DECISION BY THE GOVERNMENT NOT TO RETURN THOSE FOUR MEN.

N.-\ r\ IFK I NO: | WILL NOT COMMENT ON MY HP’S REMARKS ON THE HM FORSwansea but can i say in regard to the earlier comments of my hf that THE BRITISH GOVERNMENT'S MAIN CONCERN THROUGHOUT THIS MATTER HAS BEEN TO CONSIDER BOTH THE HUMANITARIAN ASPECTS AND OUR

INTERNATIONAL OBLIGATIONS SO FAR AS THE USE OF THE CONSULATE IS CONCERNED NOW WE BELIEVE THAT THE ONLY WAY IN WHICH THIS MATTER

COULD HAVE BEEN BROUGHT TO A CONCLUSION WITHOUT THE CO-OPERATION OF


THE THREE IN THE CONSULATE WOULD HAVE BEEN TO INVITE THE SOUTH AFRICAN POLICE TO ENTER THE CONSULATE. NOW CLEARLY WE HAVE NO INTERNATIONAL OBLIGATION OF THAT KIND AND INDEED NO ONE HAS SUGGESTED THAT WE DO. IT IS ON THAT BASIS THAT I THINK WE CAN SAY QUITE FRANKLY AND WITHOUT QUALIFICATION THAT HMG HAVE COMPLIED WITH OUR INTERNATIONAL OBLIGATIONS. WE NOTED THAT WHEN THE SOUTH AFRICAN GOVERNMENT SOUGHT TO PERSUADE THE COURT IN THE UK YESTERDAY THAT BAIL SHOULD NOT BE FORFEITED FOR THE VARIOUS REASONS WHICH THE COUNSEL ON BEHALF OF THE SOUTH AFRICAN GOVERNMENT ADVANCED THAT THE COURT DID NOT ACCEPT THAT THAT WAS IN ANY WAY GROUNDS FOR THE NON-FORFEITURE OF THE BAIL MONEY AND WE BELIEVE THEREFORE THAT WE ARE IN A POSITION TO SAY THAT THE UK GOVERNMENTS POSITION HAS COMPLIED BOTH WITH THE HUMANITARIAN AND THE LEGAL CRITERIA THAT WE HAVE APPLIED THROUGHOUT THIS INCIDENT.

ANTARCTICA - MALAYSIAN GOVERNMENT'S VIEWS*Malaysia*s Response to the UITSQ's letter on AntarcticaThe Malaysian Government believes that Res. 33/77 and- the debate on the ’

item "Question of Antarctica" at the 33th Session of the General Assembly .

provide a useful starting point far the study irhich the Secretary General

is required to undertake.

2 Ees. 33/77 in its essence calls on the Secretary General to prepare

"a comprehensive, factual and objective study on all aspects of Antarctica . "

The Malaysian Government believes that the terms of the resolution clearly

require that the study should not be a mere compilation of background

information with regard to Antarctica or the current situation pertaining

to it. Likewise the debate inter alia sets out clearly the differing views

and concerns of Member States which, under the terms of the Resolution,

must be faithfully and fairly reflected in the Secretary General's study.

Again however, the Malaysian Government does not feel that the study can

be regarded as adequate if it merely sets out seriatim the views expressed

at the debate or as conveyed to the Secretary General in accordance with

paragraphs 2 and 3 of the Resolution. In summary, therefore the Malaysian

Government would first wish to state that, in its view, the study should

not merely be a complilation of the factual background information with

regard to Antarctica or a recitation of the views of Member States other relevant bodies.


3 In stating this, the Malaysian Government does not minimise the

importance of both of these aspects as elements in the Secretary General's

study However such statistical and background information are in fact-(This letter dated 1 June 1904 to -the U.N. Sccre-arv General ^ ....adopted by the Malaysian Government in relation to Antarctica

Canberra. For Australia's views, see (1984) Australian I.L. News Y387)


- 2 -

readily available, though scattered, in numerous books, journals, publica

tions and Government statements. T>hile such a compilation in an easily

information to facilitate discussions on the subject of Antarctica, it

would not constitute in itself a "study" as reauired by Bes. 3&/77 or,

indeed, as the word "study" would ordinarily connote*

4* The recent debate at the 38th General Assembly has amply demons

trated that, while there exist much similarity of views regarding the

objectives of a regime in Antarctica, there are also differing, often

times divided, views regarding the specific nature and operation of such

a regime. It must be the purpose of the study to analyse in depth these

similarities as well as these differences so as to provide a broader basis

and firmer foundation for international cooperation in Antarctica accept

able to, and in the interest of, the international community as a whole

5 Bearing the above purpose in mind, the Government of llalsysia

believes that the study should inter alia examine in depth the following issues:

(i) The significance of Antarctica to the international

community in terms of:

- International peace and security '

— The international economy and, more specifically the economy of developing countries, with particular

' • reference to its marine and, possibly, mineralresources*

- Environment

— Ileteorology


• . J ■ . - -'-•* . >• '• • • •' * • •• - ••••..• ,

• • v. v*. .. •.* . • • * v.- • •• • •«

• . . ” — Telecominuni cations • * ’ * .. * . ’ * • *. • * * • *

- Soientic Research ‘ 't

' (ii). The functioning of Antarctica: Treaty System inelUdingt-

— Role of the Consultative Parties •

— The role of the exceeding hut lion—Consultative

' Parties, including such questions as their

contributions to discussions and decision making

— Accessibility of information including such question

as the exttend the information has been made available

to the Ron-Consultative Parties, other member states,

and relevant international agencies before decision

are made by the Consultative Parties,

- Co-operation Kith International Agencies such as

TSS itself, UNiiP, WKO, ITU, FAO Committee on Fisheries,

TFT Committee on natural Resources, etc, including an

amount of efforts made, if any, by the Consultative

Parties and by these and other relevant organisations

to seek such cooperation* '

(iix) The question of territorial claims including:

— History and basis of such claims

- Proposal which have been put forward to resolve

such claims

— Attitude of non-claimant Consultative Parties,

Ron-Consultative Parties and other states, including

the question, if non-claim ant Consultative Parties

assert that the entire continent and its resources

- 4 -

are open for their use, why should such assertion

not he made applicable to -the international community?

- Legal issues including.the significance and validity

in international law of such claims whioh have not

been recognised by the international community except

inter se by the 7 claimants states, including the

question, if such claim to sovereignty have not been

so recognised, why should Antarctica not be a " common

heritage" and invert .to the United Nations

- The status of the unclaimed sector*

(iv) The question of marine living resources*-

- A review of the negotiations which led to the oonclusion

of the and the legal significance or such nego

tiation affecting the high seas

- a review of the functions of the existing CCAMLR and

the extent of its provisions and their compliance

relating to inter-alia inspection and enforcement9

— A review as above with regard to the CEAS.

(v) The question of mineral resources including:- •

— A review of the current negotiations for a mineral

regime among the Consultative Parties

— Legal issues such as the significance to Antarctica

of the Convention on the Law of the Sea including

. the analogy to spa-bed beyond national jurisdiction .

‘ and the applicability of the concept of common • •

heritage



- — Question relating to the international management,

■ . * . rational exploitation and benefit sharing of such • • .

.' ••• •• resources- (if exploited). • • ' - • •••. • . . . ,

(vi) The establishment of en international regime in Antarctica

■ ' ’ ' V' -including:- • • •• ' •• • ' ' •.

• " -• Developments since 1953 which' have lea to this demand • : ' ' . • •

. including increased LIT membership, acceptance of the.

• concept of common heritage/ccnr.cn benefit in rcla'.lon- ’

to sea-bed beyond national jurisdiction, outer space

and the moon, increasing democratization of decision

making in international affairs and technological development

- The elements of an intemational regime including the

ooncepts of cccmon heritage and common benefit, •

accountability of such a regime to the intemational community

— The significance/danger of a situation in which there

is no universal or wide intemational acceptance of a regime in Antarctica. ....

6. Within the framework of such a study, the l-lalaysian Government,

for reasons which are explained later, wishes to express its substantive

views on the questions raised in the following brief statement which should

be regarded as supplementary to statements which the Government of Malaysia

has made in particular at the. 38th Session of the General Assembly.

v (i) Antarctica covers some 1/lOth of the surface of the

globe, it occupies s sensitive part of the world, it

has a fragile eco-system and it possesses rich marine

end, possibly, mineral resources It therefore has

great significance to the world in terms of international


- 6 -

peace and security, economy, environment, meteorology,

telecommunications etc« These are matters of global

concern and therefore the international community through

• the HI system should he more directly involved in the .

deci si on-making process concerning Antarctica. The

Kalsysian Government also believes that there are many

international agencies with specific mandates ■which

have meaningful contributions to make to, and whioh

should participate actively in, activities in Antarctica.

These include GUEP, nllO, ITU, FAO Committee on Fisheries,

TUT Committee on Natural Resources as well as other rele

vant organizations of the UN including the General

Assembly itself.

The present machinery for Antarctica has not kept pace

with current international reality. The Antarctica-

Treaty System with its two-tiered membership is unaccept

able because of its exclusivity, its unaccountability and

its secrecy, llembership as Consultative Parties requires

the ability to meet stringent qualifications established

by the ’ original Consultative Parties themselves which can

only me bet by rich and scientifically developed countries.

The Consultative Parties are not, and do not' regard them

selves as, accountable to the international' community•• -

Their deliberations are conducted in secrecy although

their decisions are subsequently (and necessarily) made-


• ' - 7 - ■ ■ ■ ■' . ■

. ' public, Tlhile the- Consultative Parties assert that they

have managed Antarctica in the interest of Mankind, it is

.,... •-ohyi.qus-.that. the interest, - of. Mankind can only he defined. . v

. • : .and managed by-Mankind itself through-a'process or machinery"

which it establishes or finds acceptable, and not by any

country or group of countries, however well-intentioned.- .

The coincidence of the interest of Mankind and the interest

of the Consultative Parties is not inevitable or preordained.

(iii) The Malaysian Government also believes that South Africa,

an international outlaw because of its apartheid policies,

cannot be involved in the management of Antarctica.

(iv) There are deficiencies in the Antarctica Treaty Systan*

It has in effect postponed the issue of territorial claims

so that, as a result, there is a vacuum on the issue of

resources and uncertainty on the issue of legal jurisdiction*

The Malaysian Qovemaent is also extremely concerned about

the implications of a situation in which there is no inter

nationally accepted system or regime in Antarctica*

(v) The Government of Malaysia shares the objectives of the

Antarctica treaty systan including the continued peaceful

use of Antarctica, its non-militarization and non-nuclearization,

the protection of its environment and delicate eco—system,

the promotion of scientific research etc However it is firmly


- 8 -

of the view that Antarctica as the coneon heritage

of rr.pn1ri.nd requires a regime that is truly universal

in character and committed to serving the interest of

the entire intemational community. In this respect,

the exploration of Antarctica and the exploitation of

its resource shall he carried out for the benefit of

mankind.

7 It will be noted that the above statement is quite brief. This

is intentional. Discussions on Antarctica at the United Nations have only

just begun. The lialaysian Government is convinced that differences among

Member States can be resolved provided that governments do not take rigid

positions. It is important to work for a consensus first on the objectives

of a regime in Antarctica and, in the light of such consensus, on the

machinery to achieve such objectives.

8 The lialaysian Government approaches the subject of Antarctica with

an open-mind and a sensitiviiy to the concerns of other Member States. It

is in that spirit that it will contribute to the forthcoming discussions

at the 39th General Assembly. Bearing in mind the complexity of the

subject, the sensitivities and concerns of llember States as well as the

limited time for discussions during the General Assembly, the lialaysian

Government is of the view that it would be appropriate, in the light of‘ ‘ ‘ . * . . . * #

such discussipns, to establish a Special Committee .ori Antarctica consisting*

of-J^eaber States who are parties to" the Antarctica Treaty*’ "both consultative

and acceding^ as well a& other I-Iember States which would examine the subject


. ’ - 9-; . .. . .. ■

further and report to the 40th Session of thf General Assembly*

9 The lialaysian Government looks forward to the Secretary General * s

study to provide a constructive basis for discussions at the 39th General

Assembly. In this connection, it would emphasise that the study should

be available in good time before the opening of the General Assembly to

enable Governments to undertake the necessary consultations whioh are

essential in order to facilitate informed and fruitful discussions at

the General Assembly itself.

tst June, 1984

[19853 AUSTRALIAN INTERNATIONAL LAW NEWS 148

HONG KONG SINO BRITISH JOINT DECLARATION

Miscellaneous No. 20 (1984)

A Draft Agreementbetween the Government of the

United Kingdom of Great Britain and Northern Irelandand the

Government of the People’s Republic of China

on the Future of Hong Kong

Presented to Parliamentby the Secretary of State for Foreign and Commonwealth Affairs

by Command of Her Majesty September 1984

LONDON

HER MAJESTY’S STATIONERY OFFICE £3-60 net

Cmnd. 9352

* (The British White Papaer, Qmd. 9352 was provided by Mr. M. J. Hone, of the United Kingdom High Carmissian Canberra and the text of the Chinese Ccintrunique provided by Mr. Lin Song, Charge d'Affaires, Bnbassy of the Peoples Republic of China, Canberra.)


TABLE OF CONTENTS

Page

Introduction ........................................................................................ 3

Joint Declaration........................................................................................ II

* Annex I to the Joint Declaration: Elaboration by the Governmentof the People’s Republic of China of its basic policies regarding Hong Kong ........................................................................................ 14Annex II to the Joint Declaration: Sino-British Joint Liaison Group ........................... ................................................................ 24

Annex III to the Joint Declaration: Land Leases ............... 26

Exchange of Memoranda........................................................................... 28

Explanatory Notes ............................................................................ 30

>*

2

C 1985] AUSTRALIAN INTERNATIONAL LAW NEWS 150

A DRAFT AGREEMENTBETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE

GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA ON THE FUTURE OF HONG KONG

INTRODUCTION

1. On 26 September 1984 representatives of the Governments of the United Kingdom and of the People’s Republic of China initialled the draft text of an agreement on the future of Hong Kong. The agreement, contained in the second part of this White Paper, consists of a Joint Declaration and three Annexes. There is an associated Exchange of Memoranda. These documents are the outcome of two years of negotiations between the two Governments, undertaken with the common aim of maintaining the stability and prosperity of Hong Kong.

2. The purpose of this White Paper is to explain the background to the last two years’ negotiations and their course, and to present the documents in their proper context. The text of this White Paper is also being published in Hong Kong by the Hong Kong Government, and the people of Hong Kong are being invited to comment on the overall acceptability of the arrangements which it describes. Thereafter the matter will be debated in Parliament.

History3. During the nineteenth century Britain concluded three Treaties with

the then Chinese Government relating to Hong Kong: the Treaty of Nanking1, signed in 1842 and ratified in 1843 under which Hong Kong Island was ceded in perpetuity; the Convention of Peking1 2 in 1860 under which the southern part of the Kowloon Peninsula and Stonecutters Island were ceded in perpetuity; and the Convention of 18983 under which the New Territories (comprising 92 per cent of the total land area of the territory) were leased to Britain for 99 years from 1 July 1898. It was the fact that the New Territories are subject to a lease with a fixed expiry date which lay behind the decision by Her Majesty’s Government to seek to enter negotiations with the Government of the People’s Republic of China (referred to hereafter as “ The Chinese Government ”) on Hong Kong’s future.

4. The Chinese Government has consistently taken the view that the whole of Hong Kong is Chinese territory. Its position for many years was that the question of Hong Kong came into the category of unequal treaties left over from history; that it should be settled peacefully through negotiations when conditions were ripe; and that pending a settlement the status quo should be maintained. The Chinese Government made its view of Hong Kong’s status clear in a letter to the Chairman of the United Nations Special Committee on the Situation with regard to the Implementation of the

1 British State Papers Vol. 30 p. 389.2 British State Papers Vol. 50 p. 10.3 British State Papers Vol. 90 p. 17.

3


Declaration on the Granting of Independence to Colonial Countries and Peoples in March 1972. This maintained that the settlement of the question of Hong Kong was a matter of China’s sovereign right and that consequently Hong Kong should not be included in the list of colonial territories covered by the Declaration on the Granting of Independence to Colonial Countries and Peoples. ,

The Background to the Negotiations5. In the late 1970s, as the period before the termination of the

New Territories lease continued to shorten, concern about the future of Hong Kong began to be expressed both in the territory itself and among foreign investors. In particular there was increasing realisation of the problem posed by individual land leases granted in the New Territories, all of which are set to expire three days before the expiry of the New Territories lease in 1997. It was clear that the steadily shortening span of these leases and the inability of the Hong Kong Government to grant new ones extending beyond 1997 would be likely to deter investment and damage confidence.

6. Her Majesty’s Government had by this time, following a detailed examination of the problem conducted in consultation with the then Governor, concluded that confidence would begin to erode quickly in the early to mid-1980s if nothing was done to alleviate the uncertainty caused by the 1997 deadline. Accordingly, when the Governor of Hong Kong visited Peking in March 1979 at the invitation of the Chinese Minister of Foreign Trade, an attempt was made, on the initiative of Her Majesty’s Government, to solve the specific question of land leases expiring in 1997. These discussions did not result in measures to solve the problem.

7. In the course of the next two years there was increasing awareness of the need to remove the uncertainty which the 1997 deadline generated. The importance of the issue was publicly stressed by the senior Unofficial Member of the Executive Council in May 1982. In January 1982 Sir (then Mr.) Humphrey Atkins, Lord Privy Seal, visited Peking and was given significant indications of Chinese policy towards Hong Kong by Chinese leaders, whitfh confirmed the view of Her Majesty’s Government that negotiations should* be opened with the Chinese Government.

file Prime Minister’s Visit to China8. Against this background Her Majesty’s Government decided that

he Prime Minister’s visit to China in September 1982 would provide an opportunity to open discussions with the Chinese Government on the future >f Hong Kong. It was evident that the Chinese Government had reached he same conclusion, and substantive discussions took place during the visit. Following a meeting between the Prime Minister and Chairman Deng Xiaoping on 24 September 1982 the following joint statement was ssued:

“Today the leaders of both countries held far-reaching talks in a friendly atmosphere on the future of Hong Kong. Both leaders made clear their respective positions on this subject.

M


They agreed to enter talks through diplomatic channels following the visit with the common aim of maintaining the stability and prosperity of Hong Kong.”

The Course of the Negotiations9. The Prime Minister’s visit was followed by the first phase of

negotiations conducted by Her Majesty’s Ambassador in Peking and the Chinese Foreign Ministry. These consisted of exchanges between the two sides on the basis on which the negotiations would be conducted, and on the agenda. On 1 July 1983 it was announced that the second phase of the talks would begin in Peking on 12 July. The pattern of negotiation in the second phase, which was continued until the end of the negotiations, was for formal rounds of talks to be held between delegations led by Her Majesty’s Ambassador in Peking and a Vice or Assistant Minister of the Chinese Foreign Ministry, supplemented as necessary by informal contacts between the two delegations. The Governor of Hong Kong took part in every round of formal talks as a member of the British delegation.

10. In the course of the negotiations Her Majesty’s Government explained in detail the systems which prevail in Hong Kong and the importance for these systems of the British administrative role and link. Following extensive discussion, however, it became clear that the continuation of British administration after 1997 would not be acceptable to China in any form. After full consultation with the Governor and the Executive Council of Hong Kong, Her Majesty’s Government therefore proposed that the two sides discuss on a conditional basis what effective measures other than continued British administration might be devised to maintain the stability and prosperity of Hong Kong and explore further the Chinese ideas about the future which had at that stage been explained to them, in order to see whether on this basis arrangements which would ensure lasting stability and prosperity for Hong Kong could be constructed. The Chinese Government was told that, if this process was successful, Her Majesty’s Government would consider recommending to Parliament a bilateral agreement enshrining the arrangements. Her Majesty’s Government also undertook in this event to assist in the implementation of such arrangements. Following this, Her Majesty’s Government sought to explore with the Chinese Government the implications of the Chinese Government’s concept of Hong Kong as a Special Administrative Region of the People’s Republic of China. In response, the Chinese side further elaborated its policies and ideas. 11

11. In April 1984 the two sides completed initial discussion of these matters. There were a number of outstanding unresolved points, but it was by then clear that an acceptable basis for an agreement might be possible. At the invitation of the Chinese Government the Secretary of State for Foreign and Commonwealth Affairs visited Peking from 15 to 18 April. During his meetings with Chinese leaders the two sides reviewed the course of the talks on the future of Hong Kong, and further progress was made. In Hong Kong on 20 April Sir Geoffrey Howe made a statement on the approach of Her Majesty’s Government to the negotiations. He said that

5

B*3158701


it would not be realistic to think of an agreement that provided for continued British administration in Hong Kong after 1997: for that reason Her Majesty’s Government had been examining with the Chinese Government how it might be possible to arrive at arrangements that would secure for Hong Kong, after 1997, a high degree of autonomy under Chinese sovereignty, and that would preserve the way of life in Hong Kong, together with the essentials of the present systems. He made it clear that Her Majesty’s Government were working for a framework of arrangements that would provide for the maintenance of Hong Kong’s flourishing and dynamic society, and an agreement in which such arrangements would be formally set out.

12. After Sir Geoffrey Howe’s visit in April 1984 negotiations continued. A working group was established on 21 June 1984 to meet full-time in Peking and consider documents tabled by both sides. From 27 to 31 July 1984 the Secretary of State for Foreign and Commonwealth Affairs again visited Peking. The visit was devoted almost entirely to the future of Hong Kong. Sir Geoffrey Howe announced in Hong Kong on 1 August that very substantial progress had been made towards agreement on the form and content of documents which would set out arrangements for Hong Kong’s future with clarity and precision, in legally binding form.

13. .Sir Geoffrey also announced on the same occasion that the two sides had agreed to establish a Sino-British Joint Liaison Group which would come into being when the agreement came into force and continue until the year 2000. It would meet in Peking, London and Flong Kong. It was agreed that the Group would not be an organ of power. Its functions would be: liaison, consultation on the implementation of the agreement, and exchange of information. It was agreed that it would play no part in (he administration of Hong Kong. Her Majesty’s Government would continue to be responsible for the administration of Hong Kong up to 30 June 1997.

14. Following Sir Geoffrey Howe’s visit the negotiations continued on the remaining unresolved issues and three further rounds of plenary talks took place. A further ad hoc working group was established in Peking on 24 August. By 18 September negotiators on both sides had approved the English and Chinese texts of the documents that make up the Agreement and the associated Exchange of Memoranda. These were submitted to British Ministers and Chinese leaders for final approval. The exts were initialled by the two delegation leaders on 26 September.

Consultation with the People of Hong Kong15. From the beginning of the negotiations Her Majesty’s Government

nave been conscious that the negotiations concerned the interests and future :>f the five and a half million people of Hong Kong. It has been the consistent position of Her Majesty’s Government that any agreement with the Chinese Government on the future of the territory should be acceptable to he people of Hong Kong as well as to the British Parliament and the Chinese Government.

6


16. The negotiations had to be conducted on a basis of confidentiality. This was crucial to their success, but the maintenance of confidentiality also caused much concern and anxiety among the people of Hong Kong who were understandably anxious to know what was being negotiated for their future. All members of the Executive Council, as the Governor’s closest advisers, were kept fully informed on the negotiations and consulted on a continuing basis throughout the period. The Unofficial Members of the Executive and Legislative Councils (UMELCO) provided invaluable advice to the Governor and to Ministers on the course of the negotiations and on the attitude of the people of Hong Kong.

17. At a number of crucial points in the negotiations the Governor and Unofficial Members of the Executive Council visited London for consultations with the Prime Minister and other Ministers. British Ministers also paid a series of visits to Hong Kong, to consult the Governor, the Executive Council and the Unofficial Members of the Executive and Legislative Councils and to keep in touch with opinion in the territory. The Secretary of State for Foreign and Commonwealth Affairs was able to describe the approach of Her Majesty’s Government to the negotiations in his statement in Hong Kong on 20 April 1984, and to fill in more details of what might eventually be included in an agreement in a further statement in the territory on 1 August 1984. In the course of the negotiations, and in particular since the statement of 20 April, numerous individuals and groups in Hong Kong have made specific proposals on what should be included in an eventual agreement. The Legislative Council of Hong Kong has debated aspects of the future of the territory on a number of occasions. Her Majesty’s Government have paid close attention to these expressions of opinion which the Hong Kong Government have relayed to Ministers, and to views about the future expressed through a variety of channels—by and through UMELCO, through the press, through individual communications addressed to Her Majesty’s Government or the Hong Kong Government. In this way Her Majesty’s Government have sought to take into account the views of the people of Hong Kong to the maximum extent possible during the negotiations.

18. In the same way the maintenance of confidentiality has made the task of consulting Parliament on the negotiations more difficult. Despite this there were debates on Hong Kong in October and November 1983 and in May 1984, and part of the Foreign Affairs Debate in March 1984 was also devoted to Hong Kong. Members of Parliament have kept in close touch with the people of Hong Kong, both through visits to the territory and through meetings with Hong Kong delegations visiting the United Kingdom.

Introduction to the Agreement19. The full text of the draft agreement is included in the second part of

this White Paper. It consists of a Joint Declaration and three Annexes. Each part of the agreement has the same status. The whole makes up a formal international agreement, legally binding in all its parts. An international agreement of this kind is the highest form of commitment between two sovereign states.

20. The Joint Declaration consists in part of linked declarations by ‘Her Majesty’s Government and the Chinese Government. In paragraph 1 the

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Chinese Government declares that it will resume the exercise of sovereignty over Hong Kong on 1 July 1997. In paragraph 2 Her Majesty’s Government declare that they will restore Hong Kong to the Chinese Government from that date. In paragraph 3 the Chinese Government sets out its policies

I towards Hong Kong after 30 June 1997. In paragraph 4 the two Govern' ’ ments jointly declare that Her Majesty’s Government will remain responsible

for the administration of Hong Kong up to 30 June 1977. Paragraphs 5 and 6 deal with the Joint Liaison Group and land. Paragraph 7 constitutes the important link between the declarations by the two parties; it has the effect of making the Joint Declaration and the Annexes to it legally binding in their entirety on the two Governments. Paragraph 8 provides for the agreement to enter into force on ratification. Ratification will take place before 30 June 1985.

21. The agreement sets out clearly the relationship between the provisions which it contains and the future Basic Law of the Hong Kong Special Adminisirative Region, to be promulgated by the National People’s Congress of the People’s Republic of China. Paragraph 3(12) of the Joint Declaration provides that the basic policies in the Joint Declaration and the elaboration of them in Annex I will be stipulated in the Basic Law. They will remain unchanged for 50 years.

22. Annex I contains an elaboration of Chinese policies for the Hong Kong Special Administration Region. The Annex deals in detail with the way Hong Kong will work after 1 July 1997, and describes the extent of the autonomy and continuity which will prevail then. The subjects dealt with in the various sections of this Annex are:

(i) constitutional arrangements and government structure;(ii) the laws; ,(iii) the judicial system;(iv) the public service;(v) the financial system;(vi) the economic system and external economic relations;

(vii) the monetary system;(viiij shipping;(ix) civil aviation;(x) culture and education;(xi) external relations;(xii) defence, security and public order;(xiii) rights and freedoms;(xiv) right of abode, travel documents and immigration.

23. Annex II sets out the provisions concerning the establishment of a Sino-British Joint Liaison Group. The Joint Liaison Group will be established on the entry into force of the agreement and will meet in Peking, London and Hong Kong. From 1 July 1988 it will be based in Hong Kong, although it will also continue to meet in Peking and London. It will continue its work until 1 January 2000. The Annex includes terms of reference which clearly


indicate that the Group will be a forum for liaison only and not an organ ofpower. It will neither play a part in the administration of Hong Kong jnor have any supervisory role. j

24. Annex III deals with land leases. It covers leases that have already been issued by the Hong Kong Government, leases to be issued between the entry into force of the agreement and 1997, certain financial arrangements, and arrangements for the establishment of a joint Land Commission.

25. Associated with the agreement is a separate Exchange of Memoranda on the status of persons after 30 June 1997 who at present are British Dependent Territories citizens, and related issues. The Memorandawill be formally exchanged in Peking on the same day as the signature of >the Joint Declaration. ;

26. The last part of this White Paper contains further explanatory notes on the text of the Annexes to the Joint Declaration and the Exchange of Memoranda.

Views of Her Majesty’s Government on the Agreement27. As recorded in paragraph 10 above. Her Majesty’s Government

have sought to see whether on the basis of proposals put forward by the jChinese Government arrangements could be constructed which would ensure lasting stability and prosperity for Hong Kong. They have negotiatedenergetically and they believe successfully to secure an agreement which jmeets the needs and wishes of the people of Hong Kong. The negotiations ;have been hard and long. Taking the agreement as a whole Her Majesty’s sGovernment are confident that it does provide a framework in which the *stability and prosperity of Hong Kong can be maintained after 1997 as a ;Special Administrative Region of the People’s Republic of China.

28. The text of the agreement has been initialled by both sides. Thisrepresents a certification by the negotiators that it represents accurately the ]outcome of the negotiations. However, as is normal with international agreements negotiated between nations there is no realistic possibility of amending the text. The agreement must be taken as a whole.

29. Her Majesty’s Government have a duty to make clear beyond anypossibility of misunderstanding the alternative to acceptance of the agreement ;set out in this White Paper. In their view, there is no possibility of anamended agreement. The alternative to acceptance of the present agreementis to have no agreement. In this case the Chinese Government has madeit plain that negotiations could not be reopened and that it would publishits own plan for Hong Kong. There is no guarantee that such a unilateralplan would include all the elements included in the draft agreement, nor •would it have the same status as a legally binding agreement between the two countries. Whether or not there is an agreement between Her Majesty’sGovernment and the Chinese Government the New Territories will revert to IChina on 1 July 1997 under the terms of the 1898 Convention. The *remainder of Hong Kong (Hong Kong Island, Kowloon and Stonecutters ♦Island) would not be viable alone. Hong Kong, including the New Territories, has since 1898 become an integral whole and Her Majesty’s Government are satisfied that there is no possibility of dividing the New

9 ;


Territories which revert to China on 1 July 1997 from the remainder. The choice is therefore between reversion of Hong Kong to China under agreed, legally binding international arrangements or reversion to China without such arrangements. This is not a choice which Her Majesty’s Government have sought to impose on the people of Hong Kong. It is a choice imposed by the facts of Hong Kong’s history.

30. Her Majesty’s Government believe that the agreement is a good one. They strongly commend it to the people of Hong Kong and to Parliament It provides a framework in which Hong Kong as a Special Administrative Region of the People’s Republic of China will be able to preserve its unique economic system and way of life after 1 July 1997. The Agreement preserves Hong Kong’s familiar legal system and the body of laws in force in Hong Kong, including the common law. The agreement gives Hong Kong a high degree of autonomy in which it will be able to administer itself and pass its own legislation. It will enable Hong Kong to continue to decide on its own economic, financial and trade policies, and to participate in international organisations and trade agreements such as the General Agreement on Tariffs and Trade (GATT). Her Majesty’s Government are confident that the agreement provides the necessary assurances about Hong Kong’s future which will allow the territory to continue to flourish, and to maintain its unique role in the world as a major trading and financial centre.

The Agreement and the People of Hong Kong31. Her Majesty’s Government have consistently stated that an

agreement on the future of Hong Kong must be acceptable to the people of Hong Kong as well as to Parliament. In his statement on 20 April 1984 in Hong Kong the Secretary of State for Foreign and Commonwealth Affairs stated that the people of Hong Kong would need to have time to express their views on the agreement, before it was debated by Parliament. The people of Hong Kong will now have this opportunity.

32. The text of this White Paper is also being published in Hong Kong by the Hong Kong Government and will be circulated through a wide variety of channels in the territory. An Assessment Office has been set up in Hong Kong under the charge of a senior official of the Hong Kong Government, directly responsible to the Governor. This office will provide Her Majesty’s Government and Parliament with an analysis and assessment of opinion in Hong Kong on the draft agreement. Two monitors, Sir Patrick Nairne and Mr Justice Simon Li, have been appointed by Her Majesty’s Government to observe the work of the Assessment Office and to report independently to the Secretary of State for Foreign and Commonwealth Affairs on whether they are satisfied that the Assessment Office has properly, accurately and impartially discharged its duties. In the light of these two reports Her Majesty’s Government will decide what recommendation to make to Parliament.

33. The people of Hong Kong are now invited to comment on the overall acceptability of the draft agreement on Hong Kong negotiated between Her Majesty’s Government and the Chinese Government, against the background set out in this White Paper.

10


JOINT DECLARATIONOF THE GOVERNMENT OF THE UNITED KINGDOM OF

GREAT BRITAIN AND NORTHERN IRELAND AND

THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA ON THE QUESTION OF HONG KONG

The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China have reviewed with satisfaction the friendly relations existing between the two Governments and peoples in recent years and agreed that a proper negotiated settlement of the question of Hong Kong, which is left over from the past, is conducive to the maintenance of the prosperity and stability of Hong Kong and to the further strengthening and development of the relations between the two countries on a new basis. To this end, they have, after talks between the delegations of the two Governments, agreed to declare as follows:

1. The Government of the People’s Republic of China declares that to recover the Hong Kong area (including Hong Kong Island, Kowloon and the New Territories, hereinafter referred to as Hong Kong) is the common aspiration of the entire Chinese people, and that it has decided to resume the exercise of sovereignty over Hong Kong with effect from 1 July 1997.

2. The Government of the United Kingdom declares that it will restore Hong Kong to the People’s Republic of China with effect from 1 July 1997.

3. The Government of the People’s Republic of China declares that the basic policies of the People’s Republic of China regarding Hong Kong are as follows:

(1) Upholding national unity and territorial integrity and taking account of the history of Hong Kong and its realities, the People’s Republic of China has decided to establish, in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China, a Hong Kong Special Administrative Region upon resuming the exercise of sovereignty over Hong Kong.

(2) The Hong Kong Special Administrative Region will be directly under the authority of the Central People’s Government of the People’s Republic of China. The Hong Kong Special Administrative Region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People’s Government.

(3) The Hong Kong Special Administrative Region will be vested with executive, legislative, and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged.

(4) The Government of the Hong Kong Special Administrative Region will be composed of local inhabitants. The chief executive will be appointed by the Central People’s Government on the basis of the results of elections or consultations to be held locally. Principal

11


officials will be nominated by the chief executive of the Hong Kong Special Administrative Region for appointment by the Central People’s Government. Chinese and foreign nationals previously working in the public and police services in the government departments of Hong Kong may remain in employment. British and other foreign nationals may also be employed to serve as advisers or hold certain public posts in government departments of the Hong Kong Special Administrative Region.

(5) The current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region. Private property, ownership of enterprises, legitimate right of inheritance and foreign investment will be protected by law.

(6) The Hong Kong Special Administrative Region will retain the status of a free port and a separate customs territory.

(7) The Hong Kong Special Administrative Region will retain the status of an international financial centre, and its markets for foreign exchange, gold, securities and futures will continue. There will be free flow of capital. The Hong Kong dollar will continue to circulate and remain freely convertible.

(8) The Hong Kong Special Administrative Region will have independent finances. The Central People’s Government will not levy taxes on the Hong Kong Special Administrative Region.

(9) The Hong Kong Special Administrative Region may establish mutually beneficial economic relations with the United Kingdom and other countries, whose economic interests in Hong Kong will be given due regard.

(10) Using the name of “ Hong Kong, China ”, the Hong Kong Special Administrative Region may on its own maintain and develop economic and ^ cultural relations and conclude relevant agreements with states, regipns and relevant international organisations.

The Government of the Hong Kong Special Administrative Region may on its own issue travel documents for entry into and exit from Hong Kong.

(11) The maintenance of public order in the Hong Kong SpecialAdministrative Region will be the responsibility of the Government of the Hong Kong Special Administrative Region. *

(12) The above-stated basic policies of the People’s Republic of China regarding Hong Kong and the elaboration of them in Annex I to this Joint Declaration will be stipulated, in a Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, by the National People’s Congress of the People’s Republic of China, and they will remain unchanged for 50 years.

12


4. The Government of the United Kingdom and the Government of the People’s Republic of China declare that, during the transitional period between the date of the entry into force of this Joint Declaration and 30 June 1997, the Government of the United Kingdom will be responsible for the administration of Hong Kong with the object of maintaining and preserving its economic prosperity and social stability; and that the Government of the People’s Republic of China will give its cooperation in this connection.

5. The Government of the United Kingdom and the Government of the People’s Republic of China declare that, in order to ensure a smooth transfer of government in 1997, and with a view to the effective implementation of this Joint Declaration, a Sino-British Joint Liaison Group will be set up when this Joint Declaration enters into force; and that it will be established and will function in accordance with the provisions of Annex II to this Joint Declaration.

6. The Government of the United Kingdom and the Government of the People’s Republic of China declare that land leases in Hong Kong and other related matters will be dealt with in accordance with the provisions of Annex III to this Joint Declaration.

7. The Government of the United Kingdom and the Government of the People’s Republic of China agree to implement the preceding declarations and the Annexes to this Joint Declaration.

8. This Joint Declaration is subject to ratification and shall enter into force on the date of the exchange of instruments of ratification, which shall take place in Beijing before 30 June 1985. This Joint Declaration and its Annexes shall be equally binding.

Done in duplicate at Beijing on 1984 in the English andChinese languages, both texts being equally authentic.

For theGovernment of the United Kingdom of Great Britain and Northern Ireland

For theGovernment of the People’s Republic of China

3158701

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ANNEX I

ELABORATION BY THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA

OF ITS BASIC POLICIES REGARDING HONG KONG

The Government of the People’s Republic of China elaborates the basic policies of the People’s Republic of China regarding Hong Kong as set out in paragraph 3 of the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong as follows: I

The Constitution of the People’s Republic of China stipulates in Article 31 that “the state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by laws enacted by the National People’s Congress in the light of the specific conditions In accordance with this Article, the People’s Republic of China shall, upon the resumption of the exercise of sovereignty over Hong Kong on 1 July 1997, establish the Hong Kong Special Administrative Region of the People’s Republic of China. The National People’s Congress of the People’s Republic of China shall enact and promulgate a Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (hereinafter referred to as the Basic Law) in accordance with the Constitution of the People’s Republic of China, stipulating that after the establishment of the Hong Kong Special Administrative Region the socialist system and socialist policies shall not be practised in the Hong Kong Special Administrative Region and tha* Hong Kong’s previous capitalist system and life-style shall remain unchanged for 50 years.

The Hong Kong Special Administrative Region shall be directly under the authority of the Central People’s Government of the People’s Republic of China and shall enjoy a high degree of autonomy. Except for foreign and defence affairs which are the responsibilities of the Central People’s Government, the Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication. The Central People’s Government shall authorise the Hong Kong Special Administrative Region to conduct on its own those external affairs specified in Section XI of this Annex.

The government and legislature of the Hong Kong Special Administrative Region shall be composed of local inhabitants. The chief executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government. Principal officials (equivalent to Secretaries) shall be nominated by the chief executive of the Hong Kong Special Administrative Region and appointed by the Central People’s Government. The legislature of the Hong Kong Special Administrative Region shall be constituted by elections. The executive authorities shall abide by the law and shall be accountable to the legislature.

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L 1985] AUSTRALIAN INTERNATIONAL LAW NEWS 162

In addition to Chinese, English may also be used in organs of government and in the courts in the Hong Kong Special Administrative Region.

Apart from displaying the national flag and national emblem of the People’s Republic of China, the Hong Kong Special Administrative Region may use a regional flag and emblem of its own.

nAfter the establishment of the Hong Kong Special Administrative

Region, the laws previously in force in Hong Kong (i.e. the common law, rules of equity, ordinances, subordinate legislation and customary law) shall be maintained, save for any that contravene the Basic Law and subject to any amendment by the Hong Kong Special Administrative Region legislature.

The legislative power of the Hong Kong Special Administrative Region shall be vested in the legislature of the Hong Kong Special Administrative Region. The legislature may on its own authority enact laws in accordance with the provisions of the Basic Law and legal procedures, and report them to the Standing Committee of the National People’s Congress for the record. Laws enacted by the legislature which are in accordance with the Basic Law and legal procedures shall be regarded as valid.

The laws of the Hong Kong Special Administrative Region shall be the Basic Law, and the laws previously in force in Hong Kong and laws enacted by the Hong Kong Special Administrative Region legislature as above.

mAfter the establishment of the Hong Kong Special Administrative

Region, the judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the vesting in the courts of the Hong Kong Special Administrative Region of the power of final adjudication.

Judicial power in the Hong Kong Special Administrative Region shall be vested in the courts of the Hong Kong Special Administrative Region. The courts shall exercise judicial power independently and free from any interference. Members of the judiciary shall be immune from legal action in respect of their judicial functions. The courts shall decide cases in accordance with the laws of the Hong Kong Special Administrative Region and may refer to precedents in other common law jurisdictions.

Judges of the Hong Kong Special Administrative Region courts shall be appointed by the chief executive of the Hong Kong Special Administrative Region acting in accordance with the recommendation of an independent commission composed of local judges, persons from the legal profession and other eminent persons. Judges shall be chosen by reference to their judicial qualities and may be recruited from other common law jurisdictions. A judge may only be removed for inability to discharge the functions of his office, or for misbehaviour, by the chief executive of the Hong Kong Special Administrative Region acting in accordance with the

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recommendation of a tribunal appointed by the chief judge of the court of final appeal, consisting of not fewer than three local judges. Additionally, the appointment or removal of principal judges (i.e. those of the highest rank) shall be made by the chief executive with the endorsement of the Hong Special Administrative Region legislature and reported to the Standing Committee of the National People’s Congress for the record. The system of appointment and removal of judicial officers other than judges shall be maintained.

The power of final judgment of the Hong Kong Special Administrative Region shall be vested in the court of final appeal in the Hong Kong Special Administrative Region, which may as required invite judges from other common law jurisdictions to sit on the court of final appeal.

A prosecuting authority of the Hong Kong Special Administrative Region shall control criminal prosecutions free from any interference.

On the basis of the system previously operating in Hong Kong, the Hong Kong Special Administrative Region Government shall on its own make provision for local lawyers and lawyers from outside the Hong Kong Special Administrative Region to work and practise in the Hong Kong Special Administrative Region.

The Central People’s Government shall assist or authorise the Hong Kong Special Administrative Region Government to make appropriate arrangements for reciprocal juridical assistance with foreign states.

IVAfter the establishment of the Hong Kong Special Administrative Region,

public servants previously serving in Hong Kong in all government departments, including the police department, and members of the judiciary may ail remain in employment and continue their service with pay, allowances, benefits and conditions of service no less favourable than before. The Hong Kong Special Administrative Region Government shall pay to such persons who retire or complete their contracts, as well as to those who have retire^ before 1 July 1997, or to their dependants, all pensions, gratuities, allowances and benefits due to them on terms no less favourable than before, and irrespective of their nationality or place of residence.

The Hong Kong Special Administrative Region Government may employ British and other foreign nationals previously serving in the public service in Hong Kong, and may recruit British and other foreign nationals holding permanent identity cards of the Hong Kong Special Administrative Region to serve as public servants at all levels, except as heads of major government departments (corresponding to branches or departments at Secretary level) including the police department, and as deputy heads of some of those departments. The Hong Kong Special Administrative Region Government may also employ British and other foreign nationals as advisers to government departments and, when there is a need, may recruit qualified candidates from outside the Hong Kong Special Administrative Region to professional and technical posts in government departments. The above


shall be employed only in their individual capacities and, like other public servants, shall be responsible to the Hong Kong Special Administrative Region Government.

The appointment and promotion of public servants shall be on the basis of qualifications, experience and ability. Hong Kong’s previous system of recruitment, employment, assessment, discipline, training and management for the public service (including special bodies for appointment, pay and conditions of service) shall, save for any provisions providing privileged treatment for foreign nationals, be maintained.

yThe Hong Kong Special Administrative Region shall deal on its own

with financial matters, including disposing of its financial resources and drawing up its budgets and its final accounts. The Hong Kong Special Administrative Region shall report its budgets and final accounts to the Central People’s Government for the record.

The Central People’s Government shall not levy taxes on the Hong Kong Special Administrative Region. The Hong Kong Special Administrative Region shall use its financial revenues exclusively for its own purposes and they shall not be handed over to the Central People’s Government. The systems by which taxation and public expenditure must be approved by the legislature, and by which there is accountability to the legislature for all public expenditure, and the system for auditing public accounts shall be maintained. VI

VIThe Hong Kong Special Administrative Region shall maintain the

capitalist economic and trade systems previously practised in Hong Kong. The Hong Kong Special Administrative Region Government shall decide its economic and trade policies on its own. Rights concerning the ownership of property, including those relating to acquisition, use, disposal, inheritance and compensation for lawful deprivation (corresponding to the real value of the property concerned, freely convertible and paid without undue delay) shall continue to be protected by law.

The Hong Kong Special Administrative Region shall retain the status of a free port and continue a free trade policy, including the free movement of goods and capital. The Hong Kong Special Administrative Region may on its own maintain and develop economic and trade relations with all states and regions.

The Hong Kong Special Administrative Region shall be a separate customs territory. It may participate in relevant international organisations and international trade agreements (including preferential trade arrangements), such as the General Agreement on Tariffs and Trade and arrangements regarding international trade in textiles. Export quotas, tariff preferences and other similar arrangements obtained by the Hong Kong Special Administrative Region shall be enjoyed exclusively by the Hong Kong Special Administrative

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C1985] AUSTRALIAN INTERNATIONAL LAW NEWS 165

Region. The Hong Kong Special Administrative Region shall have authority to issue its own certificates of origin for products manufactured locally, in accordance with prevailing rules of origin.

The Hong Kong Special Administrative Region may, as necessary, establish official and semi-official economic and trade missions in foreign countries, reporting the establishment of such missions to the Central People’s Government for the record.

VIIThe Hong Kong Special Administrative Region shall retain the status

of an international financial centre. The monetary and financial systems previously practised in Hong Kong, including the systems of regulation and supervision of deposit taking institutions and financial markets, shall be maintained.

The Hong Kong Special Administrative Region Government may decide its monetary and financial policies on its own. It shall safeguard the free operation of financial business and the free flow of capital within, into and out of the Hong Kong Special Administrative Region. No exchange control policy shall be applied in the Hong Kong Special Administrative Region. Markets for foreign exchange, gold, securities and futures shall continue.

The Hong Kong dollar, as the local legal tender, shall continue to circulate and remain freely convertible. The authority to issue Hong Kong currency shall be vested in the Hong Kong Special Administrative Region Government. The Hong Kong Special Administrative Region Government may authorise designated banks to issue or to continue to issue Hong Kong currency under statutory authority, after satisfying itself that any issue of currency will be soundly based and that the arrangements for such issue are consistent with the object of maintaining the stability of the currency. Hong Kong currency bearing references inappropriate to the status of Hong Kong as a Special Administrative Region of the People’s Republic of China shall be progressively replaced and withdrawn from circulation.

The Exchange Fund shall be managed and controlled by the Hong Kong Special Administrative Region Government, primarily for regulating the ^xchange ^alue of the Hong Kong dollar.

7 '

VIIIThe Hong Kong Special Administrative Region shall maintain Hong

Kong’s previous systems of shipping management and shipping regulation, including the system for regulating conditions of seamen. The specific functions and responsibilities of the Hong Kong Special Administrative Region Government in the field of shipping shall be defined by the Hong Kong Special Administrative Region Government on its own. Private shipping businesses and shipping-related businesses and private container terminals in Hong Kong may continue to operate freely.

The Hong Kong Special Administrative Region shall be authorised by the Central People’s Government to continue to maintain a shipping register and issue related certificates under its own legislation in the name of “ Hong Kong, China ”.

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With the exception of foreign warships, access for which requires the permission of the Central People’s Government, ships shall enjoy access to the ports of the Hong Kong Special Administrative Region in accordance with the laws of the Hong Kong Special Administrative Region.

IXThe Hong Kong Special Administrative Region shall maintain the

status of Hong Kong as a centre of international and regional aviation. Airlines incorporated and having their principal place of business in Hong Kong and civil aviation related businesses may continue to operate. The Hong Kong Special Administrative Region shall continue the previous system of civil aviation management in Hong Kong, and keep its own aircraft register in accordance with provisions laid down by the Central People’s Government concerning nationality marks and registration marks of aircraft. The Hong Kong Special Administrative Region shall be responsible on its own for matters of routine business and technical management of civil aviation, including the management of airports, the provision of air traffic services within the flight information region of the Hong Kong Special Administrative Region, and the discharge of other responsibilities allocated under the regional air navigation procedures of the International Civil Aviation Organisation.

The Central People’s Government shall, in consultation with the Hong Kong Special Administrative Region Government, make arrangements providing for air services between the Hong Kong Special Administrative Region and other parts of the People’s Republic of China for airlines incorporated and having their principal place of business in the Hong Kong Special Administrative Region and other airlines of the People’s Republic of China. All air service agreements providing for air services between other parts of the People’s Republic of China and other states and regions with stops at the Hong Kong Special Administrative Region and air services between the Hong Kong Special Administrative Region and other states and regions with stops at other parts of the People’s Republic of China shall be concluded by the Central People’s Government. For this purpose, the Central People’s Government shall take account of the special conditions and economic interests of the Hong Kong Special Administrative Region and consult the Hong Kong Special Administrative Region Government. Representatives of the Hong Kong Special Administrative Region Government may participate as members of delegations of the Government of the People’s Republic of China in air service consultations with foreign governments concerning arrangements for such services.

Acting under specific authorisations from the Central People’s Government, the Hong Kong Special Administrative Region Government may:

—renew or amend Air Service Agreements and arrangements previously in force; in principle, all such Agreements and arrangements may be renewed or amended with the rights contained in such previous Agreements and arrangements being as far as possible maintained;

19


—negotiate and conclude new Air Service Agreements providing routes for airlines incorporated and having their principal place of business in the Hong Kong Special Administrative Region and rights for overflights and technical stops; and

—negotiate and conclude provisional arrangements where no Air Service Agreement with a foreign state or other region is in force.

All scheduled air services to, from or through the Hong Kong Special Administrative Region which do not operate to, from or through the mainland of China shall be regulated by Air Service Agreements or provisional arrangements referred to in this paragraph.

The Central People’s Government shall give the Hong Kong Special Administrative Region Government the authority to:

—negotiate and conclude with other authorities all arrangements concerning the implementation of the above Air Service Agreements and provisional arrangements;

—issue licences to airlines incorporated and having their principal place of business in the Hong Kong Special Administrative Region;

—designate such airlines under the above Air Service Agreements and provisional arrangements; and

« —issue permits to foreign airlines for services other than those to, from or through the mainland of China.

X

The Hong Kong Special Administrative Region shall maintain the educational system previously practised in Hong Kong. The Hong Kong Special Administrative Region Government shall on its own decide policies in the fields of culture, education, science and technology, including policies regarding the educational system and its administration, the language of instruction, the allocation of funds, the examination system, the system of academic awards and the recognition of educational and technological qualifications. Institutions of all kinds, including those run by religious and Community organisations, may retain their autonomy. They may continue to recruit staff and use teaching materials from outside the Hong Kong Special Administrative Region. Students shall enjoy freedom of choice of education and freedom to pursue their education outside the Hong Kong Special Administrative Region.

XI

Subject to the principle that foreign affairs are the responsibility of the Central People’s Government, representatives of the Hong Kong Special Administrative Region Government may participate, as members of delegations of the Government of the People’s Republic of China, in negotiations at the diplomatic level directly affecting the Hong Kong Special Administrative Region conducted by the Central People’s Government. The Hong Kong Special Administrative Region may on its own, using the name

on


“Hong Kong, China”, maintain and develop relations and conclude and implement agreements with states, regions and relevant international organisations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, touristic, cultural and sporting fields. Representatives of the Hong Kong Special Administrative Region Government may participate, as members of delegations of the Government of the People’s Republic of China, in international organisations or conferences in appropriate fields limited to states and affecting the Hong Kong Special Administrative Region, or may attend in such other capacity as may be permitted by the Central People’s Government and the organisation or conference concerned, and may express their views in the name of “Hong Kong, China”. The Hong Kong Special Administrative Region may, using the name “Hong Kong, China”, participate in international organisations and conferences not limited to states.

The application to the Hong Kong Special Administrative Region of international agreements to which the People’s Republic of China is or becomes a party shall be decided by the Central People’s Government, in accordance with the circumstances and needs of the Hong Kong Special Administrative Region, and after seeking the views of the Hong Kong Special Administrative Region Government. International agreements to which the People’s Republic of China is not a party but which are implemented in Hong Kong may remain implemented in the Hong Kong Special Administrative Region. The Central People’s Government shall, as necessary, authorise and assist the Hong Kong Special Administrative Region Government to make appropriate arrangements for the application to the Hong Kong Special Administrative Region of other relevant international agreements. The Central People’s Government shall take the necessary steps to ensure that the Hong Kong Special Administrative Region shall continue to retain its status in an appropriate capacity in those international organisations of which the People’s Republic of China is a member and in which Hong Kong participates in one capacity or another. The Central People’s Government shall, where necessary, facilitate the continued participation of the Hong Kong Special Administrative Region in an appropriate capacity in those international organisations in which Hong Kong is a participant in one capacity or another, but of which the People’s Republic of China is not a member.

Foreign consular and other official or semi-official missions may be established in the Hong Kong Special Administrative Region with the approval of the Central People’s Government. Consular and other official missions established in Hong Kong by states which have established formal diplomatic relations with the People’s Republic of China may be maintained. According to the circumstances of each case, consular and other official missions of states having no formal diplomatic relations with the People’s Republic of China may either be maintained or changed to semi-official missions. States not recognised by the People’s Republic of China can only establish non-governmental institutions.

The United Kingdom may establish a Consulate-General in the Hong Kong Special Administrative Region.

21


XII

The maintenance of public order in the Hong Kong Special Administrative Region shall be the responsibility of the Hong Kong Special Administrative Region Government. Military forces sent by the Central People’s Government to be stationed in the Hong Kong Special Administrative Region for the purpose of defence shall not interfere in the internal affairs of the Hong Kong Special Administrative Region. Expenditure for these military forces shall be borne by the Central People’s Government.

xmThe Hong Kong Special Administrative Region Government shall protect

the rights and freedoms of inhabitants and other persons in the Hong Kong Special Administrative Region according to law. The Hong Kong Special Administrative Region Government shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of me person, of speech, of the press, of assembly, of association, to form and join trade unions, of correspondence, of travel, of movement, of strike, of demonstration, of choice of occupation, of academic research, of belief, inviolability of the home, the freedom to marry and the right to raise a family freely.

fevery person shall have the right to confidential legal advice, access to the courts, representation in the courts by lawyers of his choice, and to obtain judicial remedies. Every person shall have the right to challenge the actions of the executive in the courts.

Religious organisations and believers may maintain their relations with religious organisations and believers elsewhere, and schools, hospitals and welfare institutions run by religious organisations may be continued. The relationship between religious organisations in the Hong Kong Special Administrative Region and those in other parts of the People’s Republic of China shall be based on the principles of non-subordination, noninterference and mutual respect.

The provisions of the International Covenant on Civil and Political Rights ^and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force.

XIV

The following categories of persons shall have the right of abode in the Hong Kong Special Administrative Region, and, in accordance with the law of the Hong Kong Special Administrative Region, be qualified to obtain permanent identity cards issued by the Hong Kong Special Administrative Region Government, which state their right of abode:

—all Chinese nationals who were born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of such Chinese nationals;

22


—all other persons who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more and who have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region, and persons under 21 years of age who were bom of such persons in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

—any other persons who had the right of abode only in Hong Kong before the establishment of the Hong Kong Special Administrative Region.

The Central People’s Government shall authorise the Hong Kong Special Administrative Region Government to issue, in accordance with the law, passports of the Hong Kong Special Administrative Region of the People’s Republic of China to all Chinese nationals who hold permanent identity cards of the Hong Kong Special Administrative Region, and travel documents of the Hong Kong Special Administrative Region of the People’s Republic of China to all other persons lawfully residing in the Hong Kong Special Administrative Region. The above passports and documents shall be valid for all states and regions and shall record the holder’s right to return to the Hong Kong Special Administrative Region.

For the purpose of travelling to and from the Hong Kong Special Administrative Region, residents of the Hong Kong Special Administrative Region may use travel documents issued by the Hong Kong Special Administrative Region Government, or by other competent authorities of the People’s Republic of China, or of other states. Holders of permanent identity cards of the Hong Kong Special Administrative Region may have this fact stated in their travel documents as evidence that the holders have the right of abode in the Hong Kong Special Administrative Region.

Entry into the Hong Kong Special Administrative Region of persons from other parts of China shall continue to be regulated in accordance with the present practice.

The Hong Kong Special Administrative Region Government may apply immigration controls on entry, stay in and departure from the Hong Kong Special Administrative Region by persons from foreign states and regions.

Unless restrained by law, holders of valid travel documents shall be free to leave the Hong Kong Special Administrative Region without special authorisation.

The Central People’s Government shall assist or authorise the Hong Kong Special Administrative Region Government to conclude visa abolition agreements with states or regions.

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[1985!] AUSTRALIAN INTERNATIONAL LAW NEWS 171

ANNEX II

SINO-BRITISH JOINT LIAISON GROUP

1. In furtherance of their common aim and in order to ensure a smooth transfer of government in 1997, the Government of the United Kingdom and the Government of the People’s Republic of China have agreed to continue their discussions in a friendly spirit and to develop the cooperative relationship which already exists between the two Governments over Hong Kong with a view to the effective implementation of the Joint Declaration.

2. In order to meet the requirements for liaison, consultation and the exchange of information, the two Governments have agreed to set up a Joint Liaison Group.

3. The functions of the Joint Liaison Group shall be:{a) to conduct consultations on the implementation of the Joint

Declaration;(£) to discuss matters relating to the smooth transfer of government in

1997;(c) to exchange information and conduct consultations on such subjects

as may be agreed by the two sides.Matters on which there is disagreement in the Joint Liaison Group shall be referred to the two Governments for solution through consultations.

4. Matters for consideration during the first half of the period between the establishment of the Joint Liaison Group and 1 July 1997 shall include:

{a) action to be taken by the two Governments to enable the Hong Kong Special Administrative Region to maintain its economic relations as a separate customs territory, and in particular to ensure the maintenance of Hong Kong’s participation in the General Agreement on Tariffs and Trade, the Multifibre Arrangement and other international arrangements; and

(b) action to be taken by the two Governments to ensure the continued application of international rights and obligations affecting Hong

jkong.

5. The two Governments have agreed that in the second half of the period between the establishment of the Joint Liaison Group and 1 July 1997 there will be need for closer cooperation, which will therefore be intensified during that period. Matters for consideration during this second period shall include:

(a) procedures to be adopted for the smooth transition in 1997;(b) action to assist the Hong Kong Special Administrative Region to

maintain and develop economic and cultural relations and conclude agreements on these matters with states, regions and relevant international organizations. 6

6. The Joint Liaison Group shall be an organ for liaison and not an organ of power. It shall play no part in the administration of Hong Kong or the Hong Kong Special Administrative Region. Nor shall it have any

,1 .


supervisory role over that administration. The members and supporting staff of the Joint Liaison Group shall only conduct activities within the scope of the functions of the Joint Liaison Group.

7. Each side shall designate a senior representative, who shall be of Ambassadorial rank, and four other members of the group. Each side may send up to 20 supporting staff.

8. The Joint Liaison Group shall be established on the entry into force of the Joint Declaration. From 1 July 1988 the Joint Liaison Group shall have its principal base in Hong Kong. The Joint Liaison Group shall continue its work until 1 January 2000.

9. The Joint Liaison Group shall meet in Beijing, London and Hong Kong. It shall meet at least once in each of the three locations in each year. The venue for each meeting shall be agreed between the two sides.

10. Members of the Joint Liaison Group shall enjoy diplomatic privileges and immunities as appropriate when in the three locations. Proceedings of the Joint Liaison Group shall remain confidential unless otherwise agreed between the two sides.

11. The Joint Liaison Group may by agreement between the two sides decide to set up specialist sub-groups to deal with particular subjects requiring expert assistance.

12. Meetings of the Joint Liaison Group and sub-groups may be attended by experts other than the members of the Joint Liaison Group. Each side shall determine the composition of its delegation to particular meetings of the Joint Liaison Group or sub-group in accordance with the subjects to be discussed and the venue chosen.

13. The working procedures of the Joint Liaison Group shall be discussed and decided upon by the two sides within the guidelines laid down in this Annex.

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Cl985 3 AUSTRALIAN INTERNATIONAL LAW NEWS 173

ANNEX m

LAND LEASES

The Government of the United Kingdom and the Government of the People’s Republic of China have agreed that, with effect from the entry into force of the Joint Declaration, land leases in Hong Kong and other related matters shall be dealt with in accordance with the following provisions:

1. All leases of land granted or decided upon before the entry into force of the Joint Declaration and those granted thereafter in accordance with paragraph 2 or 3 of this Annex, and which extend beyond 30 June 1907, and all rights in relation to such leases shall continue to be recognised and protected under the law of the Hong Kong Special Administrative Region.

2. All leases of land granted by the British Hong Kong Government not containing a right of renewal that expire before 30 June 1997, except short term tenancies and leases for special purposes, may be extended if the lessee so wishes for a period expiring not later than 30 June 2047 without payment of an additional premium. An annual rent shall be charged from the date of extension equivalent to 3 per cent of the rateable value of the property at that date, adjusted in step with any changes in the rateable value thereafter. In the case of old schedule lots, village lots, small houses and similar rural holdings, where the property was on 30 June 1984 held by, or, in the case of small houses granted after that date, the property is granted to, a person descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong, the rent shall remain unchanged so long as the property is held by that person or by one of his lawful successors in the male line. Where leases of land not having a right of renewal expire after 30 June 1997, they shall be dealt with in accordance with the relevant land laws and policies of the Hong Kong Special Administrative Region.

3. From the entry into force of the Joint Declaration until 30 June 1997, new leases of land may be granted by the British Hong Kong Government for terms expiring not later than 30 June 2047. Such leases shall be, granted at a premium and nominal rental until 30 June 1997, after which date they shall not require payment of an additional premium but an annual rent equivalent to 3 per cent of the rateable value of the property at that date, adjusted in step with changes in the rateable value thereafter, shall be charged.

4. The total amount of new land to be granted under paragraph 3 of this Annex shall be limited to 50 hectares a year (excluding land to be granted to the Hong Kong Housing Authority for public rental- housing) from the entry into force of the Joint Declaration until 30 June 1997. 5

5. Modifications of the conditions specified in leases granted by the British Hong Kong Government may continue to be granted before 1 July 1997 at a premium equivalent to the difference between the value of the land under the previous conditions and its value under the modified conditions.

26


6. From the entry into force of the Joint Declaration until 30 June 1997, premium income obtained by the British Hong Kong Government from land transactions shall, after deduction of the average cost of land production, be shared equally between the British Hong Kong Government and the future Hong Kong Special Administrative Region Government. All the income obtained by the British Hong Kong Government, including the amount of the above mentioned deduction, shall be put into the Capital Works Reserve Fund for the financing of land development and public works in Hong Kong. The Hong Kong Special Administrative Region Government’s share of the premium income shall be deposited in banks incorporated in Hong Kong and shall not be drawn on except for the financing of land development and public works in Hong Kong in accordance with the provisions of paragraph 1(d) of this Annex.

7. A Land Commission shall be established in Hong Kong immediately upon the entry into force of the Joint Declaration. The Land Commission shall be composed of an equal number of officials designated respectively by the Government of the United Kingdom and the Government of the People’s Republic of China together with necessary supporting staff. The officials of the two sides shall be responsible to their respective governments. The Land Commission shall be dissolved on 30 June 1997.

The terms of reference of the Land Commission shall be:(a) to conduct consultations on the implementation of this Annex;(b) to monitor observance of the limit specified in paragraph 4 of this

Annex, the amount of land granted to the Hong Kong Housing Authority for public rental housing, and the division and use of premium income referred to in paragraph 6 of this Annex;

(c) to consider and decide on proposals from the British Hong Kong Government for increasing the limit referred to in paragraph 4 of this Annex;

(d) to examine proposals for drawing on the Hong Kong Special Administrative Region Government’s share of premium income referred to in paragraph 6 of this Annex and to make recommendations to the Chinese side for decision.

Matters on which there is disagreement in the Land Commission shall be referred to the Government of the United Kingdom and the Government of the People’s Republic of China for decision.

8. Specific details regarding the establishment of the Land Commission shall be finalised separately by the two sides through consultations.

27


EXCHANGE OF MEMORANDA

(a) UNITED KINGDOM MEMORANDUM

MEMORANDUM

In connection with the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the question of Hong Kong to be signed this day, the Government of the United Kingdom declares that, subject to the completion of the necessary amendments to the relevant United Kingdom legislation:

(a) All persons who on 30 June 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories citizens (BDTCs) under the law in force in the United Kingdom will cease to be BDTCs with effect from 1 July 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitle them to continue to use passports issued by the Government of the United Kingdom. This status will be acquired by such persons only if they hold or are included in such a British passport issued before 1 July 1997, except that eligible

* persons born on or after 1 January 1997 but before 1 July 1997 may obtain or be included in such a passport up to 31 December 1997.

(b) No person will acquire BDTC status on or after 1 July 1997 by virtue of a connection with Hong Kong. No person born on or after 1 July 1997 will acquire the status referred to as being appropriate in sub-paragraph (a).

(c) United Kingdom consular officials in the Hong Kong Special Administrative Region and elsewhere may renew and replace passports of persons mentioned in sub-paragraph (a) and may also issue them to persons, born before 1 July 1997 of such persons, who had pre. iously been included in the passport of their parent

(cty Those who have obtained or been included in passports issued by i the Government of the United Kingdom under sub-paragraphs (a)

and (c) will be entitled to receive, upon request, British consular services and protection when in third countries.

1984.Beijing,


(b) CHINESE MEMORANDUM

MEMORANDUM

Translation

The Government of the People’s Republic of China has received the memorandum from the Government of the United Kingdom of Great Britain and Northern Ireland dated 1984.

Under the Nationality Law of the People’s Republic of China, all Hong Kong Chinese compatriots, whether they are holders of the “ British Dependent Territories citizens’ Passport ” or not, are Chinese nationals.

Taking account of the historical background of Hong Kong and its realities, the competent authorities of the Government of the People’s Republic of China will, with effect from 1 July 1997, permit Chinese nationals in Hong Kong who were previously called “British Dependent Territories citizens ” to use travel documents issued by the Government of the United Kingdom for the purpose of travelling to other states and regions.

The above Chinese nationals will not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People’s Republic of China on account of their holding the above- mentioned British travel documents.

Beijing, 1984.

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EXPLANATORY NOTES

Introduction1. The following notes are intended to explain the material in the

Annexes to the Joint Declaration and in the associated Exchange of Memoranda. They do not seek to be a comprehensive guide and do not include every point in the texts. They are designed to explain in simple terms, and to illustrate where appropriate, how the Annexes provide for the continuation of the essentials of Hong Kong’s systems. Hong Kong is a highly developed industrial, commercial and financial centre and as such is a complex place. The Hong Kong Government, in consultation with Her Majesty’s Government, are taking steps to ensure that further guidance and answers to detailed questions will be provided as may be necessary and appropriate.

Annex I: Elaboration by the Government of the People’s Republic of China of its basic policies regarding Hong Kong

Section I: Constitutional Arrangements and Government Structure2. When the People’s Republic of China resumes the exercise of

sovereignty over Hong Kong on 1 July 1997, Hong Kong will become a Special Administrative Region (SAR) of the People’s Republic of China with a high degree of autonomy. A Basic Law to be enacted by the National People’s Congress of the People’s Republic of China will become the constitutional instrument for the Hong Kong SAR. The Letters Patent and the Royal Instructions, which have hitherto performed this function, will be revoked. As paragraph 3(12) of the Joint Declaration makes clear, the basic policies of the People’s Republic of China as set out in the Joint Declaration and elaborated in this Annex will all be stipulated in the Basic Law.

3. This section of the Annex makes clear the important point that the Basic Law will stipulate that the socialist system and socialist policies practised in the rest of the People’s Republic of China will not be extended to the Hong Kong SAR and that Hong Kong’s capitalist system and lifestyle will ijemain unchanged for 50 years after the establishment of the SAR. 4

4. The Annex also states that, except in relation to foreign and defence affairs, which are now the overall responsibility of Her Majesty’s Government, and will with effect from 1 July 1997 become the overall responsibility of the Central People’s Government of the People’s Republic of China, the Hong Kong SAR will enjoy a high degree of autonomy, including executive, legislative and independent judicial power. The SAR will also have authority to conduct its own external affairs in appropriate areas (including those relating to economic, trade, financial and monetary, shipping, communications, touristic, cultural and sporting matters) as amplified in section XI of this Annex, which deals with external relations. The SAR will enjoy a significant degree of autonomy in the maintenance and development of its air transport system as set out in section IX of this Annex, which deals' with-civil aviation.

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5. The section of the Annex which deals with constitutional arrangements and government structure provides that the Hong Kong SAR will be under the direct authority of the Central People’s Government. The SAR will therefore not be under the authority of any provincial government.

6. This section of the Annex lays down the main elements of the structure of government in the Hong Kong SAR. It also states that the Government and legislature of the SAR will be composed of local inhabitants. The chief executive will be selected by election or through consultations held locally and be appointed by the Central People’s Government. Officials of the rank equivalent to Secretaries will be nominated by the chief executive and appointed by the Central People’s Government. The legislature will be elected.

7. Furthermore the Annex indicates that the executive authorities will be required to act in accordance with the law and will be accountable to the legislature: that both Chinese and English languages may be used in government and in the courts: and that, apart from the national flag and national emblem of the People’s Republic of China, the SAR may use a regional flag and emblem of its own.

Section II: The Laws8. This section of the Annex, which describes how the Hong Kong SAR

will have its own system of laws, provides continuity of Hong Kong law beyond 1997. The law of the SAR will include the common law and laws passed by the legislature of the SAR. It will remain, as now, capable of adapting to changing conditions and will be free to take account of developments in the common law elsewhere. That this is so is reinforced by specific provisions in section III of this Annex providing that the courts of the SAR will be able to refer to precedents in other common law jurisdictions, that judges of the SAR may be recruited from other common law jurisdictions and that the SAR’s court of final appeal may invite judges from other common law jurisdictions to sit on it.

9. Hong Kong laws and those enacted after 1 July 1997 by the legislature of the Hong Kong SAR will be valid unless they contravene the Basic Law. The policies stated in the Joint Declaration and in this Annex will be stipulated in the Basic Law.

10. Laws enacted in the Hong Kong SAR will, as now, have to be passed by the legislature, or under its authority in the form of delegated legislation. Such laws may amend the laws of Hong Kong carried over in 1997 so long as the provisions of the Basic Law are not transgressed. After enactment, laws will have to be reported to the Standing Committee of the National People’s Congress of the People’s Republic of China for the record.

Section III: The Judicial System .11. The courts of Hong Kong consist of the Supreme Court, the District

Courts, the Magistrates* Courts, and various statutory tribunals. The courts are at the heart of Hong Kong’s legal system, which plays an important role in maintaining the stability and prosperity of Hong Kong. The Annex contains the very important provision for continuity of the judicial system.

31


12. The Annex indicates that the main change in the judicial system which will take place is the abolition of the system of appeal to the Privy Council and the substitution of arrangements for the final adjudication of disputes by a court of the Hong Kong SAR.

13. The independent exercise of judicial power and the obligation of the courts to decide cases in accordance with the law are both provided for in this section of the Annex. It also provides that the appointment of judges in the Hong Kong SAR will be subject to the recommendation of an independent commission similar to the existing Judicial Service Commission. The independence of the judiciary is protected by the provisions that judges of the SAk may only be removed from office on the grounds of inability or misbehaviour, and then only on the recommendation of a tribunal of judges of the SAR.

14. The Annex provides that the essentials of the system of appointment and removal of judges will remain unchanged, but the appointment and removal of judges of the highest rank will require the endorsement of the legislature of the Hong Kong SAR and have to be reported for the record to the Standing Committee of the National People’s Congress.

15. At present the decision whether or not to prosecute in any particular case is the responsibility of the Attorney General. That responsibility is exercised independently free from government interference. The Annex provides that the responsibility will continue to be exercised in the SAR in the same independent way.

16. The Annex provides that local lawyers and also lawyers from outside Hong Kong, who contribute greatly both to the strength of the present legal system and to the success of Hong Kong as a commercial and financial centre, will continue to be able to practise law in Hong Kong. Provision is also made to enable arrangements to be continued whereby, for example, judgments obtained in Hong Kong may be enforced in foreign states, and evidence may be obtained overseas for use in proceedings in Hong Kong.

Section IV: The Public Service17. This section of the Annex provides for the continuation in Hong

Kong of an impartial, stable and effective public service. This is an essential factor in ensuring Hong Kong’s future stability and prosperity.

18. Under the provisions of this section of the Annex serving officers will be able to continue in employment with the Hong Kong SAR Government on terms and conditions, including pay and pensions, no less favourable than before 1 July 1997. Special commissions dealing with pay and conditions of service will be retained. In addition, appointments and promotions will be made on the recommendations of a public service commission and on the basis of qualifications, experience and ability.

19. The Annex states that the Hong Kong SAR may employ foreign ‘ nationals in a number of capacities, namely as public officers (except at the highest levels), as advisers and in professional and technical posts.

32 •


20. It is explicitly provided that all pensions and other benefits due to those officers leaving the public service before or after 1 July 1997 or to their dependants will be paid by the Hong Kong SAR Government.

Section V: The Financial System21. This section of the Annex provides for continuity in that the

Government of the Hong Kong SAR will determine its own fiscal policy and manage and dispose of its financial resources, in accordance with Hong Kong’s own needs. There will be no requirement to remit revenue to the Central People’s Government. The Annex also makes clear that the predominant authority of the legislature in financial matters, and the system for independent and impartial audit of public accounts, will continue unchanged.

Section VI: The Economic System and External Economic Relations22. The Annex deals together with these two subjects, which are both

important for Hong Kong’s export-oriented economy. Hong Kong’s prosperity is heavily dependent on securing continued access to its principal export markets in the developed world. This section of the Annex provides reassurance both to the community at large in Hong Kong and to its trading partners that the basis for Hong Kong’s flourishing free market economy will continue. It also ensures that Hong Kong’s distinct position within the international trading community, on the basis of which Hong Kong enjoys its present rights of access, will continue.

23. The Annex provides for:(a) Hong Kong’s right to continue to determine its economic policies,

including trade policy, in accordance with its own needs;(b) The continuation of the free enterprise system, the free trade policies

and the free port, which are the essentials of Hong Kong’s consistent and successful economic policies;

(c) The continuation of individual rights and freedoms in economic matters, notably the freedoms of choice of occupation, of travel and of movement of capital, and the rights of individuals and companies to own and dispose of property.

All these essential requirements are met in this section of the Annex, read in conjunction with the appropriate paragraphs of Section XIII, which deals with rights and freedoms. The right of the future Hong Kong SAR to decide its own economic policies is an essential part of the “ one country, two systems ” concept.

24. Hong Kong’s participation in the General Agreement on Tariffs and Trade (GATT), through which it enjoys most favoured nation treatment in its major markets, has been an important element in its success as an exporter. Even in textiles and clothing, where the free trade principles of the GATT have been modified by the Multi-Fibre Arrangement (MFA) which is a negotiated derogation from the normal GATT rules, Hong Kong is able to develop its trade within the MFA and the bilateral agreements negotiated under its provisions. What is even more important, Hong Kong plays an active r61e in the GATT and the MFA. The continuation of

33


Hong Kong’s participation in the GATT and the MFA (if the latter is extended beyond 1986, in which year it expires) is, therefore, of prime importance: and that too is provided in this section of the Annex.

Section VII: The Monetary System25. A freely convertible currency and the right to manage the Exchange

Fund, which provides the backing for the note issue and is used to regulate the exchange value of the currency, are the essential elements of Hong Kong’s monetary system. This section of the Annex clearly stipulates that these essential elements shall be maintained.

26. This section of the Annex also provides for the continuation of the arrangements by which currency is issued locally by designated banks under statutory authority.

27. The changes to the designs of bank notes and coins provided for in this section are a logical consequence of the fact that Hong Kong will become a Special Administrative Region of the People’s Republic of China on 1 July 1997.

Section VIII: Shipping* 28. A major factor in Hong Kong’s trading success is its well-developed

deep water port and the capacity to handle cargoes by up to date methods. Hong Kong’s position as a major shipping centre will be preserved by this section of the Annex, which provides that systems of shipping management and shipping regulation will continue. Private shipping businesses and shipping-related businesses, including container terminals, may continue to operate freely.

29. The Annex states that the Hong Kong SAR will have its own shipping register and will issue certificates in the name of “Hong Kong, China.”

30. The Annex also provides that merchant shipping will have freeaccess to the ports of Hong Kong under the laws of the SAR.

?t .

Section IX: Civil Aviation31. This section of the Annex makes clear that Hong Kong will continue

as a major centra of regional and international air services, and that airlines and civil aviation related businesses will be able to continue operating.

32. Under the provisions of the Annex the Central People’s Government of the People’s Republic of China will negotiate agreements concerning air services fro*n and to other points in China through the Hong Kong SAR. However there is also a provision that in dealing with such arrangements the Central People’s Government will consult the SAR Government, take its interests into account and include its representatives in delegations to air service consultations with foreign governments. By virtue of section XI of ' the Annex, which deals with external relations, such representatives may also be included in delegations to appropriate international organisations.

n*

C 19851 AUSTRALIAN INTERNATIONAL LAW NEWS 182

The Central People’s Government will also consult the Hong Kong SAR Government about arrangements for air services between the SAR and other parts of China.

33. It is clearly provided that all scheduled air services touching the Hong Kong SAR which do not touch the mainland of China will be regulated by separate arrangements concluded by the SAR Government. For this purpose the SAR Government will be given specific authorisations from the Central People’s Government to negotiate with foreign states and regions its own bilateral arrangements regulating air services. These will as far as possible maintain the rights previously enjoyed by Hong Kong. The SAR Government will also act under a general authority from the Central People’s Government in negotiating all matters concerning the implementation of such bilateral arrangements and will issue its own operating permits for air services provided under these arrangements. The Annex also states that the SAR will have the authority to licence local airlines, to keep its own aircraft register, to conduct the technical supervision of civil aviation and to manage airports in the SAR. In addition the general provisions in section II of the Annex, which deals with the laws of the SAR, provide for continuity of previously existing civil aviation laws beyond 1997.

34. Hong Kong’s civil aviation industry will thus be able to continue to make an important contribution to the effective functioning of Hong Kong’s economy in terms of servicing the needs of both business and tourism.

Section X: Culture and Education35. This section of the Annex makes clear that Hong Kong’s own system

of education will be continued and that it will operate separately and differently from that in other parts of China. Although most of the funds for education in Hong Kong are provided by the Government, many educational institutes were founded and are run by community and religious organisations. Explicit provision is made for this system to be maintained.

36. This section also provides for continuity in the application of present educational standards, in the use of teaching materials from overseas and in the freedom to pursue education outside Hong Kong. It therefore provides a sound basis for Hong Kong to continue to develop an educational system which will ensure that the population will have the skills and expertise required to enable Hong Kong to maintain and improve its position in the fiercely competitive economic and trading environment within which Hong Kong operates.

37. Hong Kong has come to enjoy a varied cultural and intellectual life. This and other sections of the Annex provide for the present unique mix of cultural and intellectual influences to continue. Provision is made in section XI of the Annex, which deals with external relations; for Hong Kong to continue to participate in international sporting events.

Section XI: External Relations38. This section of the Annex provides that, subject to the principle

that foreign affairs are the responsibility of the Central People’s Government, the Hong Kong SAR will manage on its own certain aspects of its external

35


relations, in particular those in the economic held. This is particularly important, since Hong Kong’s access to its principal overseas markets in the industrialised world, which is crucial to Hong Kong’s industry, depends upon recognition of the separate nature of these interests.

39. In keeping with the general provisions for Hong Kong to be a Special Administrative Region under Chinese sovereignty, overall responsibility for foreign affairs will lie with the Central People’s Government, just as overall responsibility for these matters at present lies with Her Majesty’s Government in the United Kingdom. At the same time the Hong Kong SAR will be able, under the provisions of this section of the Annex, to look after its own particular interests in certain areas by virtue of the power to be given to it to conclude agreements in appropriate fields and to be represented in the delegation of the People’s Republic of China at negotiations of direct concern to Hong Kong.

40. The detailed method by which the provisions of the second paragraph of this section of the Annex, which deals with the application to the Hong Kong SAR of international agreements, will be implemented will have to be worked out during the transitional period and will be one of the matters to be considered by the Joint Liaison Group. There is a very large number of international agreements which apply to Hong Kong and whose continued application following the establishment of the Hong Kong SAR will need to be secured. This will require consultation with third countries.

41. The Annex provides for continuity of representation by all foreign states and organisations currently represented in Hong Kong, subject to the approval of the Central People’s Government. Changes to the status of such missions may be required in order to take account of the existence or otherwise of formal relations between the People’s Republic of China and a particular state. The United Kingdom will be represented in Hong Kong by a Consul-General after 1 July 1997.

Section XII: Defence, Security and Public Order42. With the establishment of the Hong Kong SAR, the British garrison

will be withdrawn and the Central People’s Government of the People’s Republic of China will be responsible for the SAR’s defence. This section of th^ Annex makes clear that the maintenance of public order in the SAR will be the SAR Government’s responsibility. It is also stated that military forces sent by the Central People’s Government to be stationed in the SAR for the purpose of defence will not interfere in its internal affairs, and that expenditure for these military forces will be borne by the Central People’s Government.

Section XIII: Rights and Freedoms43. This section of the Annex explains that basic rights and freedoms

will be protected in the Hong Kong SAR. It covers this important subject without an extended description of the rights and freedoms concerned by providing:

(n) that the rights and freedoms previously enjoyed under the laws of Hong Kong will be maintained by the SAR Government; and

36


(b) that the provisions of the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, as they apply to Hong Kong, will continue to apply to the Hong Kong SAR.

44. It is thus made clear that persons in the Hong Kong SAR will enjoy the same protection of the law against infringements of their basic rights as they did before the establishment of the SAR.

45. While not restricting the range of rights and freedoms the text mentions specifically some of the more important rights and freedoms presently enjoyed under the law.

46. The Covenants are too lengthy to reproduce here but they are public documents.1 They apply to Hong Kong, with certain reservations, and, in accordance with this section of the Annex, will continue to do so after 30 June 1997. The Covenants were drafted by the United Nations Human Rights Commission and adopted by the United Nations General Assembly, and entered into force in 1976. They state a general consensus of nations on basic rights and identify in detail specific human rights and freedoms: including the right to work, to an adequate standard of living, to life and liberty, and freedom of expression, conscience, religion and association.

47. The reservations entered by the United Kingdom in respect of the application of the Covenants to Hong Kong, which are also public, took account of the realities of the social and economic conditions in Hong Kong : for example, in relation to Hong Kong the United Kingdom made reservations relating to immigration and to the deportation of aliens.

Section XIV: Right of Abode, Travel Documents and Immigration48. This section concerns the right of abode in the Hong Kong SAR,

the travel documents to be used by residents of the SAR, and immigration matters. It provides for a high degree of continuity in these areas consistent with the change in Hong Kong’s status on 1 July 1997.

49. The first paragraph defines the categories of people who will have the right of abode (including the right to enter, re-enter, live and work) in the Hong Kong SAR. These include:

(a) Chinese nationals who were born in Hong Kong or have lived there continuously for at least seven years;

(b) Chinese nationals bom outside Hong Kong to Chinese nationals who have the right of abode in Hong Kong;

(c) all non-Chinese nationals who have lived in Hong Kong continuously for at least seven years and who have taken it as their place of permanent residence; and

(d) any others who had the right of abode only in Hong Kong before 1 July 1997.

Non-Chinese nationals bom in Hong Kong to parents who have the right of abode there also have the right of abode but will retain it after the age of 21 only if they have met the requirements of seven years’ residence and of

1 Treaty Series No. 6 (1977), Cmnd. 6702.

37


;akiag Hong Kong as their place of permanent residence. The SAR Government will issue permanent identity cards to all those with the right of abode in the SAR. These cards will state the holder’s right of abode.

50. This section of the Annex states that Chinese nationals who have the right of abode in the Hong Kong SAR will be eligible for passports issued by the SAR Government. Other persons who have the right of abode, or are otherwise lawfully resident, in the SAR will be eligible for other travel documents issued by the SAR Government. Both these categories of persons may also use travel documents issued by the competent authorities of the People’s Republic of China or by other governments to travel to and from the SAR: these include passports issued by the United Kingdom (see paragraphs 63 to 64 below).

51. The Annex makes clear that the right to leave the Hong Kong SAR for any purpose, e.g. business, study or emigration, will be maintained subject to the normal exceptions under the law. To facilitate entry by SAR residents into third countries, all travel documents issued to them will either include a reference to their right to return to the SAR or refer to the fact that they hold a permanent identity card as evidence of their right of abode in the SAR. The SAR Government will be assisted or authorised by the Central People’s Government to conclude agreements with states or regions which provide for the mutual abolition of visa requirements.

Annex II: Terms of Reference of the Sino-British Joint Liaison Group52. As the Secretary of State for Foreign and Commonwealth Affairs

emphasised in his press conference in Hong Kong on 1 August 1984, it is fully agreed between Her Majesty’s Government and the Chinese Government that Her Majesty’s Government will remain responsible for the administration of Hong Kong until 30 June 1997. Nonetheless there will, of course, be a number of areas relating to the implementation of the Joint Declaration where further consultation between the two Governments will be required after the Joint Declaration has entered into force. One obvious example in the future is the arrangements for Hong Kong’s continued participation in international agreements and . organisations. Such consultation will be facilitated by the Sino-British Joint Liaison Group, whose role and functions are clearly defined in Annex II.

Annex III: Land Leases53. This Annex takes account of the important part which land plays

in the development and economy of Hong Kong.

54. It considers existing leases under two main categories: those which continue beyond 30 June 1997 and those which expire before that date. In the case of the first category (mainly 75 year leases renewable for 75 years, and 999 year leases) the rights in the leases are recognised by the Annex and will be recognised and protected under the law of the SAR after 1997. These rights include the right of renewal in the case of renewable leases, as well as rights granted by the leaseholder to other persons, e.g. sub-leases, mortgages and rights of way.

38


55. Leases which expire before 30 June 1997 (mainly New Territories leases and 75 year non-renewable leases in the urban area) may be extended without premium until 2047. A rent of 3 per cent of current rateable value will be charged from the date of extension, except in the case of village land held by indigenous villagers who will continue to pay a nominal rent.

56. New leases running until 2047 may be issued by the Hong Kong Government in the period up to 30 June 1997. These will continue to be issued under the existing system of land disposal (i.e. by public auction, tender or private treaty grant). A premium will be payable and a nominal rent will be charged up to 30 June 1997. After that date, no additional premium will be payable but the rent will increase to 3 per cent of current rateable value.

57. The concept of charging a rent on the basis of rateable values follows that used since 1973 to fix rents on the renewal of leases. It has, however, been agreed that the rent will be based on current rateable values (i.e. a rent which will change as rateable values change) rather than based, as at present, on a fixed reference point (i.e. a rent which is based on the rateable value at the date of renewal and which remains unchanged for the whole term of the lease).

58. The amount of new land which may be granted by the Hong Kong Government will be limited to 50 hectares a year. The limit does not include land granted to the Housing Authority for the construction of public rental housing.

59. Modifications of lease conditions will continue to be dealt with by the Hong Kong Government in accordance with existing practice.

60. In recognition of the fact that leases which extend beyond June 1997 derive part of their value from the post-June 1997 portion of their term, the Annex provides for net premium income to be shared between the Hong Kong Government and the future SAR Government.

61. A Land Commission, consisting of an equal number of officials appointed by Her Majesty’s Government and the Chinese Government, will be set up. This Commission will monitor the implementation of the provisions in this Annex and will consider proposals for increasing the limit on the amount of new land which may be granted and for drawing on the SAR Government’s share of premium income. It will not, however, consider individual land cases, nor will it be involved in deciding who should be issued with new leases. The Commission will be dissolved on 30 June 1997.

Associated Exchange of Memoranda62. The status after 30 June 1997 of persons who are now British

Dependent Territories citizens, and related issues, are covered in two Memoranda to be formally exchanged between the British and Chinese Governments on the same day as the signature of the Joint Declaration. These Memoranda set out the respective positions of the two Governments.

63. Since Hong Kong will no longer be a British Dependent Territory after 30 June 1997, it will not be appropriate for those who are British Dependent Territories citizens by virtue of a connection with Hong Kong to

39


be described as such after that date. The United Kingdom Government will seek Parliamentary approval for legislation which will give such British Dependent Territories citizens the right to a new status, with an appropriate title. This status will not give them the right of abode in the United Kingdom, which they do not possess at present, but it will carry benefits similar to those enjoyed by British Dependent Territories citizens at present, including the entitlement to use British passports and to receive British consular services and protection in third countries. The status will not, however, be transmissible by descent. The United Kingdom Government will do all they can to secure for holders of these British passports the same access to other countries as that enjoyed at present by holders of British Dependent Territories citizen passports.

64. This new status will be acquired by former Hong Kong British Dependent Territories citizens only if they obtain a British passport before 1 July 1997. The only exceptions to this are:

(a) persons included in the passport of a parent before 1 July 1997 will be able to acquire this new status and will be able to obtain a British passport of their own after that date;

(b) persons who were bom between 1 January and 30 June 1997 will be able to acquire this new status if they obtain a British passport, or are included in the passport of a parent, on or before 31 December 1997. Those who are included in the passport of a parent will be

* able to obtain a British passport of their own after that date.

65. The Chinese Memorandum states the Chinese Government’s position that Hong Kong Chinese are Chinese nationals. It indicates, however, that those Chinese nationals who hold British travel documents may continue to use them after 1 July 1997. Such persons will not, of course, be entitled to consular protection by the United Kingdom Government in the Hong Kong SAR or in other parts of China.

Printed in the UK by Her Majesty’s Stationery Office

3158701 Dd 401352 C60 9/84

ISBN 0 10 193520 X


SINO-BRITISH JOINT DECLARATION

ON HONGKONG INITIALED IN BEIJING ‘

BEIJING, SEPTEMBER 26 (XINHUA)— A JOINT DECLARATION OF THE J

GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA AND THE GOVERNMENT OF

THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND ON THE

QUESTION OF HONGKONG WAS INITIALED IN BEIJING THIS MORNING. *

THE CEREMONY FOR INITIALING THE DOCUMENT STARTED AT 10 A.M.

IN THE GREAT HALL OF THE PEOPLE. . ,

SIGNING THE TEXTS ON BEHALF OF THE RESPECTIVE GOVERNMENTS WERE i

ZHOU NAN, CHAIR!'IAN OF THE CHINESE GOVERNMENT DELEGATION AND CHINA’S

NEWLY APPOINTED VICE-MINISTER OF FOREIGN AFFAIRS, AND RICHARD EVANS,

CHAIRMAN OF THE BRITISH GOVERNMENT DELEGATION AND BRITISH AMBASSADOR

TO CHINA. ‘

IN A FORMAL ADDRESS AT THE SIGNING CEREMONY, ZHOU JAN SAID * 'THE

AGREEMENT, HAVING BEEN INITIALED, WILL GO THROUGH LEGAL PROCEDURES OF

THE TWO SIDES AND BE FORMALLY SIGNED BEFORE THE END OF THIS YEAR. AT ;

ALL EVENTS, WE HAVE TOGETHER TRAVERSED A COURSE OF DECISIVE SIGNIFICANCE5

HE SAID THAT THE AGREEMENT "HAS SATISFACTORILY SOLVED THE QUESTION

OF SOVEREIGNTY OVER HONGKONG ACCORDING TO THE CONCEPT OF ’ONE COUNTRY,

TWO SYSTEMS' AND PROVIDES AN EFFECTIVE GUARANTEE FOR HONGKONG'S

STABILITY AND PROSPERITY IN THE FUTURE.

"THE SETTLEMENT OF THE HONGKONG. QUESTION WILL CERTAINLY HELP

FURTHER CONSOLIDATE AND DEVELOP EXISTING SINO-BRITISH FRIENDLY TIES ?

ON A NEW BASIS, AND OFFERS FRESH EXPERIENCE FOR SETTLING PEACEFULLY

PROBLEMS BETWEEN STATES LEFT OVER FROM THE PAST .

"WE BELIEVE THAT THE AGREEMENT FULLY CONFORMS TO THE FUNDAMENTAL

INTERESTS OF THE ONE BILLION CHINESE PEOPLE INCLUDING OUR COMPATRIOTS

IN HONGKONG AND THOSE OF THE BRITISH PEOPLE AND WILL WIN THEIR

ENDORSEMENT AND SUPPORT . WE EQUALLY BELIEVE THAT IT WILL BE WELL RECEIVED

AND APPROVED OF BY THE PEOPLE THROUGHOUT THE WORLD."


HE CONTINUED: "WE OWE OUR ACHIEVEMENT FIRST AND FOREMOST TO THE FAR-SIGHTED DECISION OF THE CHINESE AND BRITISH LEADERS. IT WAS THEIR PERSONAL ATTENTION AND DIRECT GUIDANCE THAT ENSURED THE SUCCESS OF OUR TAiKS AND THE CONCLUSION OF THE AGREEMENT.-

EVANS SAID IN HIS ADDRESS:'THE JOINT DECLARATION IS THE PRACTICAL EMBODIMENT OF THE IMAGINATIVE CONCEPT OF ’ONE COUNTRY, TWO SYSTEMS'.IT ALSO DEMONSTRATES THAT PEACEFUL NEGOTIATION IS THE BEST WAY TO RESOLVE PR03LEMS LEFT OVER FROM HISTORY.-

HE PAID TRI3UTE TO THE SKILL aHD DEDICATION OF ALL MEMBERS OF THE CHINESE GOVERNMENT DELEGATION. "THEY HAVE WORKED HARD, AND IN A SPIRIT OF MUTUAL ACCOMMODATION, TO ACCOMPLISH THE COMMON TASKS OF REACHING AGREEMENT ON THE ISSUES UNDER DISCUSSION AND OF NEGOTIATING THE TERMS OF THE JOINT DECLARATION WHICH WE HAVE JUST INITIALED."

HE SAID THAT THE BRITISH GOVERNMENT AND THE CHINESE GOVERNMENT HAVE AGREED THAT A PROPER NEGOTIATED SETTLEMENT OF THE QUESTION OF HONGKONG IS CONDUCIVE TO THE MAINTENANCE OF THE PROPERITY AND STABILITY OF HONGKONG AND TO THE FURTHER STRENGTHENING AND DEVELOPMENT OF THE RELATIONS BETWEEN THE TWO COUNTRIES ON A NEW BASIS .


CHINA - THE DALAI LAMA

DALAI LAMA'S REPRESENTATIVES ISSUE STATEMENT IN BEIJING *

Beijing, December 1 (Xinhua) - A visit by the Dalai Lama to his motherland would bring better understanding between him and the senior Chinese central leaders, said his three representatives here this afternoon.

But they indicated that the Dalai Lama's return was not likely to take place in 1985, due to the preoccupations of the administration of the Tibet Autonomous Region with various projects.

In an interview with Xinhua, the three representatives, Thupten Namgyal Juchen, Phuntsok Tashi Takla and Lodi Gyaltsen Gyari issued the following statement:

The statement says - His holiness the Dalai Lama believes the present Chinese central leadership is "sincere and courageous, and therefore he has much hope in reaching a settlement by direct contact". "His holiness the Dalai Lama is clearly on record that the issues involved are not of his personal position or power. Furthermore, his holiness the Dalai Lama feels past events should not become obstacle for the future".

We have not yet presented any written formula to the central leadership as our visits until now have been of an "exploratory nature", it goes on.However, we have made some of our views and stands known to important leaders including Deng Xiaoping, Hu Yaobang, Li Xiannian, Xi Zhongxun, Ulanhu and Yang Jingren during the past several years. At this stage, it says, "We feel it is best not to discuss these points in public".

"His holiness the Dalai Lama has many times expressed his wish to make a visit to Tibet at the earliest possible time. However, in our opinion, 1985 is not suitable as the whole administration of the Tibet Autonomous Region seems to be preoccupied with various projects, though arrangements may be possible in Ginghai, and other Tibetan areas in Sichuan, Gansu and Yunnan".

Additionally, it adds, such a visit requires detailed preparations and further discussions.

We are confident, it says in conclusion, that a visit by His holiness the Dalai Lama will "bring better understanding" between him and the Senior Central leaders.

* (This statement, released through the official Chinese newsagency, Xinhua, was made available by the Embassy of the Peoples' Republic of China, Canberra).


COMMUNIQUE OF THE 10TH CONFERENCE OF INDOCHINESE FOREIGN MINISTER

HO CHI MINH CITY/ 1985.

1. THE CONFERENCE IS OF THE UNANIMOUS VTEW THAT THE YEAR1984 MARKED A NEW STEP FORWARD IN THE GROWTH OF THE FORCES OF PEACE, NATIONAL INDEPENDENCE AND SOCIAL PROGRFSS IN TUT riFRCf STRIIGGIE AGAINST THE FORCES OF IMPERIALISM, COLONIALISM AND INTERNATIONAL REACTION. SOUTHEAST ASIA HAS WITNESSED VERY IMPORTANT DEVELOPMENTS FAVOURABLE TO THE STRUGGLE FOR NATIONAL DEFENCE AND BUILDING OF THE LAO, KAMPUCHEAN AND VIETNAMESE PEOPLES. WITH THE VIGOROUS AND EFFECTIVE SUPPORT OF THE SOVIET UNION, THE SOCIALIST COMMUNITY, THE NONALIGNED COUNTRIES AND FRIENDS OVER THE WORLD, LAOS, KAMPUCHEA AND VIETNAM ARE STEADILY FORGING AHEAD. THE OUTSTANDING ACHIEVEMENTS RECORDED BY THE PEOPLE’S REPUBLIC OF KAMPUCHEA IN THE ECONOMIC, MILITARY, POLITICAL AND DIPLOMATIC FIELDS CONFIRM THE IRREVERSIBILITY OF THE KAMPUCHEAN SITUATION WHILE ALL SCHEMES OF Till. IMPERIALIST , EXPANSIONIST AND REACTIONARY FORCES IN THE LAST SIX YEARS AIMED AT RE-INSTALLING THE GENOCIDAL POL POT CLIQUE BACK IN KAMPUCHEA HAVE MET WITH DISMAL FAILURE. IT IS AN UNDENIABLE REALITY THAT UNDER THE LEADERSHIP OF THE PARTY AND THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF KAMPUCHEA OVER SEVEN MILLION KAMPUCHEANS ARE TRULY TAKING IN THEIR HANDS THEIR OWN DESTINY IN THEIR MIRACLOUS RE BIRTH. THE SO-CALLED COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA IS NOTHING BUT THE SHADOW OF THE POL POT CLIQUE LIVING IN EXILE IN SANCTUARIES IN THAILAND, NURTURED AND MANIPULATED BY FOREIGN COUNTRIES TO TURN AGAINST ITS OWN FATHERLAND. THERE IS AN EVER GREATER MOMENTUM FOR THE EXCLUSION OF POL POT AND HIS ASSOCIATES SO AS TO SAFEGUARD THE KAMPUCHEAN PEOPLE’S RIGHTS TO SELF-DETERMINATION. AS A MATTER OF FACT, ONLY THE CHINESE AUTHORITIES AND THE REACTIONARIES WITHIN THE THAI RULING CIRCLES HAVE BEEN STUBBORNLY PROPPING UP THE GENOCIDAL POL POT CLIQUE IN ORDER TO OPPOSE THE KAMPUCHEAN PEOPLE’S RENAISSANCE AND SERVE THEIR SELFISH INTERESTS.

2. THE CONFERENCE REVIEWED THE DIPLOMATIC ACTIVITIES UNDERTAKEN BYTHE LAO PEOPLE’S DEMOCRATIC REPUBLIC, THE PEOPLE'S REPUBLIC OF KAMPUCHEA AND THE SOCIALIST REPUBLIC OF VIETNAM DURING THE PAST YEAR IN PURSUANCE OF THEIR FOREIGN POLICY OF PEACE, FRIENDSHIP AND CO-OPERATION. IT IS PLEASED TO NO IE THAT THE PEOPLES OF THE WORLD APPRECIATE EVER MORE HIGHLY AND EXTEND AN INCREASINGIY STRONG SUPPORT TO THE JUST POSITION AND GOOD WILL OF THE INDOCHINESE COUNTRIES IN REGARD TO THE CAUSE OF PEACE AND NATIONAL INDEPENDENCE IN SOUTHEAST ASIA AND THE WORLD. ■

THE CONFERENCE APPRECIATES HIGHLY THE DIPLOMATIC ACTlVim>S OF THE PEOPLE’S REPUBLIC OF KAMPUCHEA, ESPECIALLY THE VI SITS" UNDERTAKEN BY ITS FOREIGN MINISTER IN A NUMBER OF AFRICAN STATES AS WELL AS HlS BROAD CONTACTS AND EXCHANGES IN SWEDEN AND FRANCE. IT CONSIDERS • POSITIVE THE MEETINGS HELD DURING THE PAST YEAR BETWEEN THE LAO AND \ THE VIETNAMESE FOREIGN MINISTERS AND THEIR COUNTERPARTS IN SEVERAL \ SOUTHEAST ASIAN COUNTRIES. THESE MEETINGS PROVE THAI IN SPITE OF A \ FEW REMAINING DIFFERENCES THE MAJORITY OF STATES IN THE REGION ARE

[19.85] AUSTRALIAN INTERNATIONAL LAW NEWS 192

BECOMING INCREASINGLY AWARE OF THE NECESSITY, THROUGH DIALOGUE ON AN EQUAL FOOTING AND ON THE BASIS OF MUTUAL RESPECT FOR EACH OTHER'S LEGITIMATE INTERESTS, TO PROMOTE AND DEVELOP BILATERAL RELATIONS OF FRIENDSHIP AND CO-OPERATION, AND TO CREATE FAVOURABLE CONDITIONS FOR THE SETTLEMENT OF INTR-REGIONAL DIFFERENCES WITHOUT EXTERNAL INTERFERENCE.

THE CONFERENCE TAKES NOTE OF THE VIEW HELD BY SEVERAL ASEAN COUNTRIES THAT THE KAMPUCHEAN ISSUE IS NOT (NOT) A PROBLEM BETWEEN THE ASEAN AND THE INDOCHINESE STATES. THIS CORRECT APPROACH HELPS FOSTER BILATERAL RELATIONS BETWEEN THE LATTER AND OTHER SOUTHEAST ASIAN NATIONS AND DO AWAY WITH ARTIFICIAL OBSTACLES TO THE ESTABLISHMENT OF A ZONE OF PEACE AND STABILITY IN SOUTHEAST ASIA.THE CONFERENCE WELCOMES THE INTENTION OF SEVERAL SOUTHEAST ASIAN STATES TO DEVELOP THEIR BILATERAL RELATIONS WITH VIETNAM AND LAOS.IT CONSIDERS THE VISIT TO VIETNAM MADE BY GENERAL L. B. MURDANI, COMMANDER-IN-CHIEF OF THE INDONESIAN ARMED FORCES, THE SEMINARS AMONG VIETNAMESE AND INDONESIAN SCHOLARS AND THE EVENTUAL VISIT OF INDONESIAN LEADERS TO VIETNAM TO BE POSITIVE EFFORTS THAT THE BENEFICIAL NOT ONLY TO THE BILATERAL INDONESIAN-VIETNAMESE TIES OF CO-OPERATION AND FRIENDSHIP BUT ALSO TO THE CONSOLIDATION OF PEACE IN ASIA AND OF THE SOLIDARITY AMONG NON-ALIGNED COUNTRIES. THE CONFERENCE WELCOMES ALL ENDEAVOURS OF ANY NATION IN SOUTHEAST ASIA AND THE WORLD TO HELP SETTLE THE EXISTING DIFFERENCES BETWEEN THE INDOCHINESE COUNTRIES AND ANOTHER STATE WITHIN OR OUTSIDE THE REGION.

THE CONFERENCE WELCOMES THE MALAYSIAN PROPOSAL TO TURN SOUTHEAST ASIA INTO A NUCLEAR-FREE ZONE AND TO MATERIALIZE THE ZOPFAN CONCEPT PENDING A SOLUTION TO THE ’’KAMPUCHEA PROBLEM.’’ THE THREE

INDOCHINESE COUNTRIES DECLARE THEIR WILLINGNESS TO COOPERATE WITH THE OTHER SOUTHEAST ASIAN STATES IN CARRYING OUT THIS IMPORTANT INITIATIVE. 3

3. THE CONFERENCE EXPOSED THE SCHEMES UNDERTAKEN BY THE BEIJING REACTIONARY RULING CIRCLES OVER THE PAST SIX YEARS IN COLLUSION WITH THE US IMPERIALISTS AND THE REACTIONARIES WITHIN THE THAI RULING CIRCLES AIMED AT WEAKENING THE INDOCHINESE COUNTRIES THROUGH A MULTIFACETED WAR OF SABOTAGE, ^XIMENTING CONFRONTATION BETWEEN THE SOUTHEAST ASIAN STATES AND UN$MINING PEACE AND STABILITY IN THE REGION. WHILE RESOLUTELY STRUGGLING TO DEFEND THEIR RESPECTIVE FATHERLANDS, THE THREE INDOCHINESE PEOPLES INVARIABLY TREASURE THEIR TIME- HONOURED FRIENDSHIP WITH THE CHINESE PEOPLE AND ALWAYS LOOK FORWARD TO AN EARLY RESTORATION OF THIS FRIENDSHIP. A RELATION- SHIP OF FRIENDSHIP AND COOPERATION BETWEEN VIETNAM, LAOS AND KAMPUCHEA ON THE ONE HAND AND THE PEOPLE’S REPUBLIC OF CHINA ON THE OTHER, WOULD CONSTITUTE A FACTOR OF EXTREME IMPORTANCE FOR PEACE AND STABILITY IN SOUTHEAST ASIA. WHAT MATTERS MOST IS THAT BOTH SIDES SHOULD SHOW GOOD WILL. IN THAT SPIRIT, THE LAO PEOPLE’S DEMOCRATIC REPUBLIC AND THE PEOPLE'S REPUBLIC OF KAMPUCHEA FULLY SUPPORT THE ENDEAVOURS OF THE SOCIALIST REPUBLIC OF VIETNAM TO RESTORE PEACE IN THE VIETNAM-CHINA BORDER REGIONS AND TO RESUME THE SINO-VIETNAMESE NEGOTIATIONS FOR THE NORMALIZATION OF THEIR RELATIONS.


4. THE PRESENT TENSION PREVAILING Oil THE KAMPUCHEAN- THAI AND LAO-THAI BORDERS STEMS FROM THE THAI EXPANSIONIST POLICY HITHERTO PURSUED BY THE REACTIONARY RULING CIRCLCS OF THAILAND VIS-A-VIS THE INDOCHINESE COUNTRIES. SUCH A SITUATION IS. ON I HE ONI HAND.CONTRARY TO THE INTERESTS OF THE PLOPIES (IF THESE COUNTRIES AS WELLAS THOSE OF THE OTHER SOUTHEAST ASIAN COUNTRIES, AND ON THE OTHER, TO THE SOLE ADVANTAGE OF OUTSIDE HEGEN ON I ST FORCES WHICH ARE ATTEMPTING TO PIT THE COUNTRIES IN THE REGION AC-AIN ST ONE A NO I HEP. THE THREE INDOCHINESE COUNTRIES ONCE AGAIN REAFFIRM THEIR SKIRL AND WILLINGNESS TO DO THEIR UTMOST TO FOSTER GOOD NT I CMP. OUR LINES WITH THAILAND IN ORDER TO TURN THE KAMPUCHEAN-,HAi AND LAO- THAI BORDERS INTO BORDERS OF PEACE AND FRIENDSHIP AND SOLVE THE PROBLEMS OF THEIR RELATIONS WITH THAILAND THROUGH NEGOTIATIONS. IN THIS SPIRIT, THE . CONFERENCE ASSESSES HIGHLY THE DETERMINATION Or THE LAO PEOPLE'S DEMOCRATIC REPUBLIC TO DEFEND IT5 SOVEREIGNTY OVER THE REGION OE THE THREE LAO HAMLETS IN SAYABOURI PROVINCE WHICH HAS BEEN ILLEGALLY OCCUPIED BY THAILAND. THE PEOPLE'S R(. PUBIIC OF- KAMPUCHEA AND THE SOCIALIST REPUBLIC OF VIETNAM WHILE FULLY SUPPORTING THE JUST POSITION AND THE GOOD WILL OF THE LAO PEOPLE'S DEMOCRATIC REPUBLIC, FIRMLY DEMAND THAT THE THAI SIDE IMMEDIATELY WITHDRAW ITS TROOPS FROM THE THREE HAMLETS, RETURN THE I.AO CIVILIAN!. FUAT HAVE BEEN ABDUCTED TO THAILAND AND COMPENSATE FOR THE ' OSSES INFLICI ED ON THE LAO POPULATION BY THE THAI ARMY IN ORDER 10 NORMALIZE Till: IWO COUNTRIES’ RELATIONS.

THE CONFERENCE WELCOMES ALI EFFORiS AIMED AT BRINGING PEACE AND SECURITY FOR BOTH COUNTRIES ALONG THE KAMPUCHEAN-THAI BORDER UNDER AN INTERNATIONAL FORM OF GUARANTEE' AND SUPERVISION AND AT HALTING COMPLETELY THE USE OF THE REFUGEE CAMPS BY I HE KHMER REACTIONARIES AS BASES FOR MILITARY OPERATIONS DIRECTED AGAINST THE KAMPUCHEAN PEOPLE. THE LAO PEOPLE'S DEMOCRATIC REPUBLIC AND Till SOCIALIST FT! PUBLIC OF VIETNAM WHOLLY SUPPORT THE INITIATIVES OF THE PEOPLE’S REPUBLIC OF KAMPUCHEA ON URGENT MEASURES AIMED AT ENSURING PLACE AND SECURITY ALONG THE BORDER WITH THAILAND AND ON THE REPATRIATION OF KAMPUCHEAN REFUGEES RESIDING ON THAI SOIL ON THE BASIS OF THE PRINCIPLES MUTUALLY AGREED UPON. 5

5. LOOKING BACK ON THE RELATIONS Or VILT NAM , LAOS AND KAMPUCHEA WITH THE UNITED STATES AFTER THE END OF THE AM, R (.AM WAR Si AGGRESSION,THE CONFERENCE CLEARLY INDICATED THAT THE- PR- SENT ABSENCE OF NORMALIZATION STEMS FROM THE SUCCESSIVE- AM:. RI CAN ADMINIG. RATIONS* HOSTILE POLICY VIS-A -VIS THE I NDOC H7 NT :.E CC.UWIk’II S. Ni V. RIHEILSS.THE LATTER ARE INVARIABLY LOOKING TO I HE FUiURL. NORMAI •/ATI ON OF RELATIONS BETWEEN THE THREE INDOCHINESE COUNT Kit'"- ' NO THE UNITED STATES CONFIRMS TO THE INTERESTS CF ALL PAR I 11. S CONCERN' P AND OE PEACE AND STABILITY IN SOUTMLASi ASK. THE UNI Li. D SfAFLS SHOULD ASSUME A RESPONSIBLE ROLE IN C ONYRi ,U , I NS ' LONG TECH Li ACL AND STABILITY IN SOUTHEAST ASIA. THE CONFERENCE WELL ON. G TUI BROADENING CONTACTS BETWEEN VARIOUS STRATA OF THE AMERICAN PEOPLE AMD POLITICAL CIRCLES AND THE THREE INDOCHINESE COUNTRIES. THE CONFERENCE IS OF THE VIEW THAT THE RECENT VISITS OF AMERICAN C ONG ? l S:. ME N ’S DC ! T GA TI ONS TO LAOS, VIETNAM AND KAMPUCHEA HAVE .it ! N POST ilVL , AS THEY INCREASED MUTUAL UNDERSTANDING AND HELPED FOSTER THE SETTLEMENT Of PROBLEMS OF CONCERN TO THE UNITED STATES AS WELL AS TO : ACH Of THE IIIKEL INDOCHINESE COUNTRIES ON THE OTHER.


6. INSPIRED BY THEIR ARDENT ASPIRATION FOR IOC FARLY ESTABLISHMENT OF PEACE AND STABILITY IN THE REGION THE INDOCHINESE COUNTRIES ONCE AGAIN REITERATE THEIR WILLINGNESS TO ENTER INTO NEGOTIATIONS WITH THE PARTIES CONCERNED SO AS TO REACH AN EARLY SOLUTION ENCOMPASSING AT THE SAME TIME THE WITHDRAWAL OF VIETNAMESE VOLUNTEER FORCES FROM KAMPUCHEA PAIRED WITH THE EXCLUSION OF THE GENOCIDAL POL POT CLIQUE, RESPECT FOR THE KAMPUCHEAN PEOPLE’S RIGHT TO SELF-DETERMINATION,FIRST AND FOREMOST THE RIGHT TO COME BACK 10 A LIFE FREE FOM THE THREAT OF GENOCIDE, THE HOLDING BY THE KAMPUCHEAN PEOPLE OF FREE GENERAL ELECTIONS IN THE PRESENCE OF FOREIGN OBSERVERS, BUILDING SOUTHEAST ASIA INTO A ZONE OF PEACE AND STABILITY WHEREIN STATES WITH DIFFERENT SOCIAL SYSTEMS LIVE IN PEACEFUL COEXISTENCE WITHOUT ALLOWING THEIR RESPECTIVE TERRITORIES TO BE USED AGAINST OTHER COUNTRIES, RESPECT BY ALL EXTERNAL STATES OF THE NATIONAL RIGHTS OF SOUTHEAST ASIAN COUNTRIES, THE ESTABLISHMENT OF AN INTERNATIONAL FORM OF GUARANTEE AND SUPERVISION FOR THE IMPLEMENTATION OF THE AGREEMENTS.

THE THREE INDOCHINESE COUNTRIES ONCE AGAIN RENEW THEIR PROPOSAL ON THE CONVENING OF AN INTERNATIONAL CONFERENCE TO DISCUSS ALL PROBLEMS RELATED TO PEACE AND STABILITY IN SOUTHEAST ASIA THAT WOULD BE ATTENDED BY ALL STATES WITHIN THE REGION AND THOSE OUTSIDE THAT ARE DIRECTLY CONCERNED OR HAVE ALREADY CONTRIBUTED TO SOUTHEAST ASIA’S PEACE AND STABILITY.

THE THREE INDOCHINESE COUNTRIES CONSIDER THAT THE BEST WAY IS TO REACH A NEGOTIATED SOLUTION. AT THE SAME TIME, THEY STATE THEIR DETERMINATION TO CONTINUE THEIR STRUGGLE FOR THE DEFENCE AND BUILDING OF THEIR RESPECTIVE COUNTRIES. WITH REGARD TO THE PEOPLE’S REPUBLIC OF KAMPUCHEA IN PARTICULAR, CONCURRENTLY WITH ITS GROWTH AND CONSOLIDATION CONTINGENTS OF VIETNAMESE VOLUNTEER FORCES HAVE SUCCESSIVELY BEEN WITHDRAWN FROM THIS COUNTRY IN THE PAST THREE YEARS AND WILL CONTINUE TO THE WITHDRAWN IN THE COURSE OF THIS YEAR AS WELL AS THE COMIONG YEARS. IN THIS PERSPECTIVE THE CONFERENCE IS CONFIDENT THAT WITHIN FIVE TO TEN YEARS’ TIME THE GO-CALLED KAMPUCHEA PROBLEM WILL OF ITSELF BE SETTLED EVEN IN THE ABSl.muc OF A NEGOTIATED SOLUTION.

THE LAO PEOPLE’S DEMOCRATIC REPUBLIC AND THE SOCIALIST REPUBLIC OF VIETNAM VALUE HIGHLY THE POLICY OF NATIONAL UNITY PURSUED BY THE PEOPLE’S REPUBLIC OF KAMPUCHEA AND WHICH FINDS AN EXPRESSION IN FOREIGN MINISTER HUN SEN’S DECLARATION OF 18 SEPTEMBER, 1982 AND THE RESOLUTION ADOPTED IN AUGUST 1984 BY THE NATIONAL ASSEMBLY OF THE PEOPLE’S REPUBLIC OF KAMPUCHEA. THIS POLICY OF NATIONAL UNITY HAS BEEN WARMLY WELCOMED BY BROAD SECTIONS OF WORLD PUBLIC OPINION.


, THE THREE INDOCHINESE COUNTRIES HAVE DONE THEIR UTMOST TOR THE SAKE OF PEACE IN SOUTHEAST ASIA AND THE WORLD. IN THIS SPIRIT THE CONFERENCE VALUES HIGHLY AND FULLY SUPPORTS THE IMPORTANT PEACE INITIATIVES OF THE SOCIALIST COMMUNITY, ESPECIALLY THE SOVIET UNION'S POSITION IN THE ONGOING SOVIET-US TALKS AIMED AT HALTING THE NUCLEAR ARMS RACE, EASING INTERNATIONAL TENSION AND CONSOLIDATING THE PEACE AND SECURITY OF THE WORLD PEOPLE. IT ATTACHES GREAT IMPORTANCE TO THE FORTIETH ANNIVERSARY OF THE VICTORY OVER FASCISM WHICH WILL BE STIRRINGLY COMMEMORATED BY NATIONS ACROSS THE WORLD. FOR THE THREE INDOCHINESE PEOPLES 1985 WILL ALSG BE MARKED BY MAJOR CELEBRATIONS : THE FORTIETH ANNIVERSARY OF THE VICTORY OF REVOLUTION IN THE THREE COUNTRIES AND THE TENTH ANNIVERSARY OF THEIR VICTORY OVER THE US IMPERIALIST WAR OF AGGRESSION. THESr IMPORTANT EVENTS CONSTITUTE A LIVING MANIFESTATION OF THE TIES BINDING THE FATE OF THE THREE INDOCHINESE PEOPLES TO THAT OF THE OTHER NATIONS OF THE WORLD. THE HISTORY OF THE PAST FORTY YEARS SHOWS THAT IN SPITE OF MANY REMAINING DIFFICULTIES AND OBSTACLES NOTHING CAN THREAT THE WORLD PEOPLES - AMONG WHOM THOSE OF INDOCHINA - IN THE REALIZATION OF THEIR LOFTY GOALS. NAMELY PEACE, INDEPENDENCE, FRIENDSHIP AND COOPERATION.


VIETNAM AND ASEAN

Unofficial translation

STATEMENTby the Spokesman of the Ministry of Foreign Affairs

of the Socialist Republic of Vietnam on the erroneous stance of the extraordinary meeting

of the ASEAN Foreign Ministers.

The Extraordinary Meeting of the Foreign Ministers of Asean countries, held in Bangkok on February 11 and 12, released a statement repeating Asean stand on the so-called Kampuchea problem and shopworn slanderous allegations against the Socialist Republic of Vietnam, misrepresenting the position and goodwill of the three Indochinese countries in solving problems related to peace and stability in South-East Asia.

Particularly serious is the fact that the statement c&lls on Western countries and China to increase military aid to the Pol Pot clique and the other Khmer reactionary forces.

Obviously this statement reflects truthfully the erroneous stance of China and Thailand on continuing to save and foster the genocidal Pol Pot clique, to maintain a state of confrontation in South-East Asia.

While the world people, including several ASEAN nations, are demanding the elimination of the Pol Pot clique in order to rapidly find a solution .to the Kampuchea's question, the above-mentioned statement condemned the Kampuchean people, their armed forces and Vietnamese volunteer forces for attacking the genocidal Pol Pot clique. Hie ASEAN statement did not say a word about deliberate acts carried out by China against three Indochinese countries and the fact that the Pol Pot clique is free to use sanctuaries on Thailand’s territory to oppose Kampuchea's revival.

The ASEAN statement puts the blame on Vietnam for hindering negotiations. It is common knowledge that so far Vietnam, Laos and Kampuchea have spared no efforts in conducting dialogues with the ASEAN countries so as to solve all differences. To this end, the Indochinese countries have put forth many initiatives. The Foreign Ministers of Vietnam and Laos have JFJiany occasions visited the capitals of ASEAN member countries. The ASEAN and Indochinese countries have once reached agreement on a number of formula concerning the participants in the dialogue. The Indo-Chinese countries have appointed Vietnam as their representative and the ASEAN countries have appointed Indonesia as their repr s ntativ for th dialogue. ~


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However all these efforts have been abe true ted by China and Thailand.

For its part, Beijing has sought by all means to sabotage the dialogues in the region. It openly obstructed the efforts of some Western countries to organize a meeting between some Kampuchean personalities living in exile and the representative of the People's Republic of Kampuchea so as to achieve national concord in Kampuchea.

On the other hand, China has instigated Thailand to invade and occupy 3 hamlets of Laos. China has rejected all proposals put forth by Vietnam to ease tension along the Vietnam - Chinese border and resume the talks between the two countries.

At the same time,over recent months, China has increased armed provocations and land-grabbing incursions against Vietnam while threatening to teach Vietnam another lesson.

In this context, the ASEAN demand that Vietnam create a constructive atmosphere before the dialogue could start is in essence a demand that the Indochinese countries must accept the erroneous stance of China and Thailand as a precondition for dialogue. This is an unreasonable demand and a stumbling block in the way of efforts toward a political settlement.

The stance of Vietnam, Laos and Kampuchea on solving the question of peace and stability in South-East Asia, including the Kampuchean problem, was expounded in a communique dated January 18 of the Foreign Ministers conference of the three Indochinese countries.

Any solution to the Kampuchean question must be based on a Vietnamese troop withdrawal paired with the elimination of the genocidal Pol Pot clique and their accomplices , respect for the fundamental national rights of the three Indochinese countries and other South-East Asian nations.

This fully conforms to the aspirations of the world as well as of the South-East Asian peoples.

However the ASEAN statement has put forth an unjust demand, i.e, that talks be held between Vietnam and the self-styled Co-alition government of Democratic Kampuchea. This is, in essence^ an attempt to legalize the Pol Pot clique in disguise.

The position of Vietnam is clear : The internal affairs of Kampuchea should be solved by the Kampuchean people. Vietnam fully supports the judicious policy of national unity and concord made public on many occasions by the People's Republic of Kampuch a.


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Vietnam, Laos and Kampuchea have advocated the solution of all issues concerning peace and stability of South-East Asia through dialogues with the Asean countries on the basis of equality, mutual respect and consideration of each other's stand. In this spirit, Vietnam warmly halls the Statement of the Malaysian Foreign Minister Tengku Ahmed Rithaudeen, the present Chairman of Asean, on the appointment of the Indonesian Foreign Minister Dr Mochta Kusumaatmadja as representative of the ASEAN at the dialogue.

Hanoi 14 February 1985.


VIETNAM AND INDOCHINA

Extract from the Statement by Mr Nguyen Co Tach to the 39th Session of the UN General Assembly, 9 October 1984 *

".... Asia and thePacific has been the single region devastated by the three biggest and longest local war§, i.e. the Korean war and the two Indochinese wars. This is not counting the other wars unleashed by China against most of her neighbours. After the formation in Europe of NATO the largest military bloc ever and a product of the US, the United States set up the greatest number of military alliance. However, all the efforts of imperialist and reactionary forces have met with one setback after another and Asia is the continent that has experienced the deepest changes in the world during the last four decades.

Despite repeated failures * imperialist and reactionary forces have not yet reconciled themselves to abandoning their scheme of hegemony and aggression against the Asian peoples. The United States is actively proceeding with the creation of a military alliance with Japan and South Korea. Japan is becoming an “unsinkable aircraft carrier, of the United States in Asia. The people living in the Asia-Pacific region are gravely concerned about the increasing collusion between the United States and China, and between Japan and China which is directed against the peace and independence of the nations in the region. Washington has never concealed its intention of forming a NATO bloc in Asia.

Such a situation demands that the peoples of Asia heighten their vigilance and their solidarity in their common struggle for a lasting peace in Asia. We welcome efforts by any countries towards this end. In this context, we highly appreciate the initiative of the People’s Republic of Mongolia on signing a convention of non-aggression and non-use of force in the relations among countries of Asia and the Pacific.

The fierce struggle and profound changes in Asia have found their most vivid expression in the three Indochinese countries. The current so-called "Kampuchean problem" is simply a continuation of the situation which has developed in Indochina over the last four decades. In order to find a just solution to the so-called "Kampuchean problem" one has to proceed from the very nature of the situation in Indochina and Asia, which can be summarized as follows :

1. During the last 40 years, Vietnam, Lao and Kampuchea have been the only countries of the world ravaged by uniterupted wars with the quantity of bombs and ammunition over five times greater than the amount used in the Second World War. .

* (From text supplied by Embassy of the Socialist Republic of Vietnam, Canberra).


2. The three Indochinese countries have been the main victims of aggression at the hand of the United States, China, Great Britain and France, all of whom are permanent members of the UN Security Council - an organization whose primary responsibility is to maintain world peace and to safeguard the sovereignty and independence of nations. But to find a pretext for their aggression, the imperialist and reactionary forces have acted like thief crying "stop thief17 accusing the three Indochinese countries of being a tool of communist expansion and of threatening their neighbouring countries.

3. The three Indochinese peoples are victims of common enemy, i.e. the imperialist and reactionary forces. The aggressors have waged wars of aggression simultaneously on the territories of the three Indochinese countries with the .aim of imposing their domination on them. That explains why solidarity in fighting against the common enemy has become a necessity for the three peoples. The armed forces of the.three countries have always fought side by side for their respective independence and the independence of the three countries. Their armed forces have never gone beyond their border just

as the their solidarity has never infringed upon the interests of the neighbouring countries, this solidarity is of vital importance to the three countries, as is true of the solidarity among Arab nations, among African countries and among the front line states in Southern Africa. Imperialist and hegemonist forces have acted in collusion, using the ASEAN countries and their territories to oppose the peoples of Vietnam, Laos and Kampuchea. They have tried to split the three countries, using the fiction of an "Indochinese federation" which was abandoned by the three Indochinese countries following the dissolution of "French Indochina".

4. The three Indochinese peoples’ aspiration for independence has crystalized into an invincible strength. For the last four decades, fierce and uninterupted wars as well as sustained economic embargoes and political isolation have all failed to subjugate the three countries. In the end the aggressors were compelled to agree to international conferences to end the wars and to recognize the independence and sovereignty of the three Indochinese countries. Ours has been the only region of the world where three such international conferences have been convened, involving five major powers whichare currently permanent members of the UN security council and resulting in the only international accords which recognize the national rights of the three Indochinese countries.


5. The struggle in Southeast Asia during the last four decades has x^esulted in the formation of two groups of countries-ASEAN and Indochina- with differing political and social systems. Carrying out their "divide and rule" policy, imperialist and reactionary forces have put the ASEAN against the Indochinese countries. Therefore, peace and stability in Southeast Asia require both peaceful coexistence between the two groups of countries and an end to all forms of outside interference.

6. In the last four decades, the majority at the United Nations has kept silent in the pace of the longest and most brutal wars of aggression waged against the three Indochinese countries. Today, at the UN, the majority is again taking sides with the expansionist forces by recognizing the genocidal Polpot criminals, who have massacred three million Kampucheans and who are trying to impede the Kampuchean people’s rebirth. It is due to this state of affairs that solutions to the most protracted and bloodiest Indochinese wars were found outside the framework of the United Nations.

If the so-called "Kampuchea problem" has dragged on for six years without being resolved, it is because of an unwillingess to address the real nature of the issue : the struggle of the three Indochinese peoples for the defence of their independence and sovereignty against their northern neighbour’s hegemonism and expansionism. Some have deliberately supported the actions of aggressors against their victims must as they have thrown their support behind the Polpot clique, which massacred three million Kampucheans, launched wars of aggression against neighbouring countries and which is trying to impede the recovery of the Kampuchean people.

During the last six years, the People's Republic of Kampuchea has become an undeniable reality. From the mass graves of the genocidal Polpot regime, the Kampuchean people have returned to life and have restored national unity and concord. They have exercised and are exercising their right to selfdetermination, for them, self-determination is first and foremost the right to live free from the genocidal Polpot clique. However, under the pretext of defending the right to self-determination of the Kampuchean people, imperialist and reactionary forces have been trying to bring this genocidal clique back to power in Kampuchea.

Vietnamese volunteer forces have, on three occasions, gone to Kampuchea to fight side by side with the Kampuchean people against a common enemy. Twice they have withdrawn from this country : the first time in 1954 when theFrench colonialist’s war was terminated and the second time in 1975 afterthe end of Amercian war. They will withdraw for the third time once China hasceased its threat. The People’s Republic of Kampuchea and the Socialist


Republic of Vietnam categerically reject the demand for a unilaterel withdrawal of Vietnamese volunteers, a demand designed to bring Polpot either openly or in disguise back to Kampuchea. The Kampuchean people’s recovery has made possible a gradual withdrawal of Vietnamese volunteers from Kampuchea each year, starting in 1982. This has frustrated the design of those who would like either to demand the immediate and complete withdrawal of Vietnamese volunteers, opening the way for the Polpot clique to return to power in Kampuchea or to keep these forces bogged down in Kampuchea unable to withdraw.

All the military, political, economic and diplomatic measures that China and ASEAN have taken against the three Indochinese peoples during the last six years have failed. All attempts to impose a unilateral solution on Kampuchea have come to naught. Now there is only one alternative V to engage in a dialogue, to jointly consider the proposals of both parties and to start negotiations on the basis of equality and mutual respect for each other’s interests. We are of the view that if the parties concerned sincerely wish to settle their differences, the opporunity for doing so has presented itself. Such a development will conform to the interests of all parties in Southeast Asia and to the resolutions on Southeast Asia adopted by the Seventh Summit Conference of the Non-aligned countries held in New Delhi in 1983 : resolutions accepted by both the ASEAN and Indochina groups.

We welcome all initiatives by other countries to facilitate negotiations between the two groups of Southeast Asian countries to find a solution that ensures respects for each other’s independence and sovereignty that guarantees peace and security in Southeast Asia.

Attempts to impose a solution aimed at thwarting the rebirth of Kampuchea, which would result in the return of the Polpot genocidal clique and which threaten Laos and Vietnam should be given up otherwise peace and stability in Southeast Asia will continue to be undermined. In this context, with the growing strength of the People’s Republic of Kampuchea, Vietnamese volunteers will continue their annual withdrawals from Kampuchea. Within five to ten years, when most of the Vietnamese volunteers will be withdrawn from Kampuchea, the People’s Republic of Kampuchea will be able to shoulder its own defence, and the question of Kampuchea will thus resolve itself.

As a people who have endured centuries of foreign domination and half a century of wartime destruction, the Vietnamese people long for a life of peace more ardently than any other people. We wish to entertain friendly


relations with all countries and especially with neighbouring states we are ready to let bygones be bygones and to look to the future in our relations with those countries who have caused and are still causing so much suffering to our people.

A stable situation in Southeast Asia depends first and foremost on the relations between the two main groups of countries, i.e.ASEAN and Indochina. There is no alternative to these groups settling their differences through negotiations on the basis of equality and mutual respect, free from outside interference.

The peoples of Vietnam, Laos and Kampuchea always respect the independence, sovereignty and territorial integrity of Thailand and wish to develop neighbourly relations with its people. However, it should be pointed out that the main obstacles are the hostile policies pursued by the Thai authorities in collusion with the foreign reactionaries : using the Polpot clique to oppose the rebirth of the Kampuchean people, supporting acts of subversion against Laos, especially continuing their occuaption of the three Lao villages as well as their hostile policies towards Vietnam, we hope that the Thai authorities will soon realize this, for their national interest and for the sake of peace, stability and peaceful coexistence in Southeast Asia, we demand that the Thai authorities will soon realize this, for their national interest and for the sake of peace, stability and peaceful coexistence in Southeast Asia.

We demand that the Thai authorities put an end to their interference in the internal affairs of the Kampuchean people. Thailand must immediately withdraw its troops from the three Lao villages it has illegally occupied since June 6, 1984, return the villagers they kidnapped, compensate the people for the loss of lives and property they inflicted and allow the three villages to return to their normal way of life before invasion.

The occupation by Thailand of the three villages-at a time when the differences between ASEAN and the Indochinese countries, having dragged on for six years have not yet been settled and may or may not soon be settled- further points to the urgency of reaching some agreement on peaceful coexistence between ASEAN and Indochina in order to defuse the explosive tensions which threaten to get out of control.

While constantly promoting and consolidating the friendly relationship and comprehensive cooperation with the Soviet Union and other fraternal socialist countries , we always wish to restore traditional friendly relations with the Chinese people. It is our view that the normalisation of Sino-


Vietnamese relations and the restoration of mutual friendship are beneficial to both peoples and at the same time constitute a very important factor for peace and security in Southeast Asia.

Even though the consequences of the war conducted by Johnson and Nixon against our people will take US a long time to overcome, the people of Vietnam always consider the American people as their friends, the peoples of the two countries being twin victims of that war. If the United States government really wishes to contribute to peace and stability in Southeast Asia, their efforts will be welcomed, we once again affirm our willingness to settle with the United States all problems that concern our countries including the questions MIAS, Amerasians and criminals in reeducation camps,etc...

The relationship between Vietnam and the Soviet Union and other .socialist countries is one of enduring fraternal trusts that has stood thetest of time. The Soviet Union is the only permanent member of the securitycouncil that has shown respect for Vietnam’s independence and wholeheartedlysupported its struggle for independence. Thanks to valuable assistance ofthe Soviet Union, Vietnam has been able to overcome the most serious obstaclesin defending and building the country. The United States, China, Japan andASEAN are now raising a din about the so-called "Soviet military base, in CamRanh. I should make it clear that, at present, there is no such Sovietmilitary base, but our country has the right to let Soviet aircraft and atvessels call/its ports in Vietnam. Soviet aircraft and vessels calling at the Vietnamese ports do not pose a threat to any country. The only real threat to all Asian countries is posed by China with the largest armed forces of the world, as well as by the collossal US military bases in the Philippines, in Thailand and in Okinawa and particularly by Japan’s position as the US’s ’’unsinkable aircraft carrier, this fact can be underscored by the use of these territories as bases in the US war of aggression against Vietnam and the other Indochinese countries. The outcry by China, the United States and ASEAN about the purported "Soviet Military base in Vietnam, is simply aimed at obscuring the grave threat posed by China’s gigantic military machine and by the collossal US military bases in Asia. If they are really worried about Soviet aircraft and vessels in Vietnam, why then do they reject the resolutions adopted by 1983 Seventh Summit Conference of the Non-aligned movernment calling for the withdrawal of all foreign troops from the Southeast Asian region ? Why then do they refuse to accept the concept of a zone of peace and neutrality in Asia (ZOPFAN) proposed since 1971 by Asean itself ? Vietnam favours the idea of turning Southeast Asia into a zone of peace and neutrality as called for in the Seventh Summit resolutions and as proposed by ASEAN countries.


LAOS AND THAILAND

The Villages of Bane Mai, Bane Kang and Bane Savang*

1. STATEMENT BY H.B. PHOUNE^IPASEUTH. VICE-CHAIRMAN OF THE COUNCIL OF MlNISTtlUK, MINISTER FOR FOREIGN AFFAIRS OF THE LAO PEOPLE’S DEMOCRATIC REPUBLIC BEFORE THE U.N. SECURITY COUNCIL.NEW YORK, OCTOBER 9, 1984.

Mr. President,

I should like first of all to express my great satisfaction at teeing you presiding over the Security Council this month. My pleasure is the greater bccuusc you arc the representative of a country with which my own country enjoys excellent relations and shares certain affinities. Our two peoples have shared the same experience of a colonial past and are united by links of solidarity in their national liberation struggle to build a new progressive life in accordance with their respective interests. Indeed, our two peoples have followed a similar destiny, if I may so put it.

I should also like to congratulate your predecessor, Ambassador Elleck Kufakunesu Mashingaid/e of Zimbabwe, for having discharged his functions so admirably during the month of September.

I should also like to take this opportunity to thank the Council for permitting me to eotnc here to set forth the following very grave matters, which have a direct bearing on my country.

On 6 June 1984, several battalions of the Thai Army, accompanied by tanks, armoured cars, artillery and reconaissancc aircraft, carried out an act of aggression against Lao territory and occupied three villages, namely, Banc May, Banc Kang and Banc Savang, in the Paklay district of the Sayaboury province, which lies about 200 kilometres to the north-west of Vientiane, our capital.

Immediately after their occupation, the Thai troops took draconian measures to change the characteristics of those three villages. They removed the frontier markers which had l.been

. +.0 4-hP un Security Council Debate were supplied by the Embassy^SaSc^SlioT^d the Itoyal Thai Embassy. Canberra.

: Rjreiqn Affairs, dated 17 August 1984.


placed in that area by France in agreement with Siam; they replaced Lao administrative authority by Thai administrative authority; they forced the villagers to register in the Thai records office; they replaced Lao currency with Thai currency; they transformed Lao schools into Thai schools; they replaced the traffic •signs written in Lao by those written in Thai; they removed villagers by force, particularly young people, to Thailand, with a view to making them “Siamese” and they sent Thai citizens into those villages to become assimilated with the Lao population there.

Furthermore, the Thai occupation troops engaged in plunder ■and pillage, repressing the villagers and raping women. They prevented the villagers from engaging in their agricultural work and prevented them from visiting their relatives in other villages by surrounding the area of the three villages with a network of mines. Trcnches were dug and reinforcements and extra armament were brought in with a view to carrying out a prolongedoccupation.

Thai troops have been constantly firing on neighbouring areas, causing considerable loss of human life and material damage.

Along with these military activities and acts of repression, Thailand has organized a campaign of lies and propaganda and has claimed that the three villages are located in a sector over which neither Lao nor Thai sovereignty has yet been clearlyestablished.

In order for the Council to be able to understand the problem more clearly, I should like to make the following points :

There is no question here of a frontier dispute or conflict of The kind that arises between two countries with a common frontier, but a clcar-cut case of premeditated aggression.

For decades, in fact since the founding of the Lao People’s Democratic Republic, in the relations between Laos and Thailand there has never been any frontier dispute, either in the region of these three villages or indeed anywhere along the frontier laid down by the Franco-Siamese Convention of 13 February 1904, the Franco*Siamese Treaty of 23 March 1907 and the map which is annexed thereto. Let us recall that this is a line recognized bv the International Court of Justice, as was the case in the affair of the Preah Viharn Temple in 1962. In the two joint Lao-Thai Declarations of 1979, it was laid down that the two Prime Ministers agreed to make of the whole frontier—the river frontier and the land frontier—between Laos and Thailand, a frontier of peace and friendship on the basis of respect for the independence, sovereignty, territorial integrity, the legitimate interests of each side and the principle of the peaceful resolution of disputes between the two countries. This is a reciprocal commitment relating to respect for the historic frontier clearly set, and traced by precise boundary markers.

For fair-minded people in Thailand and indeed throughout the world, it is quite clear that the three villages belong to Laos; this is a matter of history, of law—treaties, maps, frontier makers—and is a consequence of the fact that administration has been established long since and has never been challenged. To justify the idea that these three villages belong to it, the Thai administration has produced the map drawn up jointly by the cartographic service of the Thai Army and the United States Army in 1978. It considers that this is a map drawn up by means of modern techniques and consequently it is in keeping with reality, in spite of the footnote at the bottom of the map stating that “the frontier lines on this map are not to be considered official”. Now, why does Thailand claim the right to assert that a map it drew itself is the only valid one and why does it claim, the right to force another country to recognize this? Why does Thailand not recognize the map drawn up in 1907 by the Joint Frontier Delimitation Franco-Siamese Commission which hitherto the two parties have considered to be of a validity beyond question? And why does Thailand reject the map drawn by the Siamese Army in 1909, which is in keeping with the provisions of the Protocol of 1907?

Thailand puts forward arguments such as: “because of the fact that the frontier is imprecise in this place, “or” “The problem can easily be solved by peaceful means in a spirit of good-neighbourliness”. In fact, if Thailand were sincere, why did it not discuss the matter beforehand with the Lao

People’s Democratic Republic? But instead of doing this, it

mobilized sizeable forces to launch a large-scale attack against the three villages. It is easy to understand, however, that these arguments put forward by Thailand are nothing but deceitful words designed to cover up its aggression against Lao territory and a violation of its commitments to Laos under the joint Lao- Thai declarations of 1979 which provide that the two countries will settle their disputes by peaceful means. The violation by Thailand of its commitments is at the same time an infringement of the Charter of the United Nations, sabotage of Lao-Thai relations, and the underlying cause of aggravation of tension in South-East Asia.

Furthermore, Thailand persists in the idea of establishing a technical commission to survey the terrain. Furthermore, it is even advocating the appointing of a neutral country to supervise this action. This Thai stratagem consists in forcing Laos to reexamine the frontier in this area, thus creating a precedent for a wholesale revision of the frontier between the two countries. In fact, Thiland has already sent its own “technical commission” there to undertake unilaterally a new drawing of a frontier line.

The attack and occupation by Thailand of the three villages, also its other acts and false allegations, could not more clearly demonstrate its intention to call into question the historic line of the frontier. These intentions have been unambiguously expressed in statements from Thai ruling circles, for example the following one:

“If one goes back to the agreement before 1946, one will see that the Lao provinces of Sayaboury and Champassak belong to Thailand and in accordance with previous treaties the whole of of present Laos was Thai.”

When the Lao side showed juridically, with proof and evidence, treaties and relevant maps, that the three villages were indeed Lao, the Thai party dismissed the argument with the reply that these treaties had been signed under pressure from France.

If we make a brief review of the history of this matter, we shall see that the Lao and Thai people are both very well aware that the present north-east of Thailand before was Lao territory, and its 20 million inhabitants are Lao; they speak Lao and their traditions and customs are Lao, and they are bound bv ties of kinship with the present population of Laos. It is true that this is a painful history for the Lao people. We are mentioning it here only to demonstrate the expansionism of Thai ruling circles.

The just and correct position of the Lao People’s Democratic Republic is based on its respect for the principle of the inviolability of historical frontiers, that is to say, its recognition of the present line of the frontiers as laid down in the international instruments signed by France and Siam in 1904 and 1907.

At the present time the Thai side is continuing to make much of friendly, brotherly relations, ethnic affinities between the Lao and the Thai peoples and the possibility of resolving the matter peacefully through negotiations. This is just misleading language designed to assuage the anger of the Lao people and the discontent of the Thai people with regard to Thai aggression. In fact, the acts of the Thai side contradict these words.

In spite of the occupation of its territory by Thai troops, the Lao side, demonstrating great patience, sent a delegation to Bangkok to negotiate with the Thai side. It made it clear that it was absolutely determined to resolve the problem peacefully. It put forward reasonable and just proposals and presented exhaustive and relevant proof of the age-old sovereignty of Laos over these three villages. Unfortunately, in the course of these negotiations, the Thai side had recourse to all kinds of manoeuvres and stratagems to avoid the just solution of the problem. Initially, the Thai side agreed to withdraw its troops from the three villages, to send the villagers back to their homes and to indemnify them for any losses they may have sustained, thus making possible a return to the normal situation that had existed before 6 June 1984. Then the Thai side imposed a condition on the withdrawal of its troops by forbidding the Lao party to send in its own troops. Worse still, it demanded that the two countries withdraw their troops 30 kilometres from the sector of the three villages. Then it demanded that the maintenance of the status quo that is to say, that the occupation of the three villages by its troops continue. Finally, the Thai side proposed, according to a pre-established plan, to break off negotiations unilaterally.

The Thai claim that Viet Nam is intervening in this matter to


inflate it is only a manoeuvre designed to mislead people and divide them. Indeed, everyone knows that Lao-Vietnamese relations, like those between the three Indo-Chinese countries, are relations of brotherly friendship and close alliance. They are brothers in arms, and this constitutes a factor ensuring the victory of the three countries in their struggle for the last few decades against the imperialist and colonialist aggressors. At the present stage of defending and building our country, it is more important than ever that these relations be strengthened and developed in all areas. The Treaty of Friendship and Co-operation between Laos and Viet Nam signed in 1977 and the declaration of the Summit Conference of the three countries of Indo-China in 1983 reaffirmed the principles of solidarity, long-term co-operation and mutual assistance in the building and defence of each country formulated in a spirit of brotherly friendship, free consent, equality and mutual advantage and on the basis of respect for independence, sovereignty and territorial integrity and the principle of non-interference in each other’s internal affairs; in a spirit of mutual understanding and with respect for the legitimate interests of each of the countries and the common interests of the three nations.

The principles governing these relations are in keeping with the United Nations Charter and are a threat to no country. Progressive peoples throughout the world can only welcome and support these good relations. Only the reactionary and imperialist forces strive to oppose these by all possible means. The three countries of Indo-China have reaffirmed their policy of peaceful coexistence with neighbouring countries. They have done everything in their power to encourage the dialogue between the countries of Indo-China and the members of the Association of SouthEast Asian Nations (ASEAN) in an attempt to make of South- South-East Asia a zone of peace, stability, friendship and cooperation.

The act of aggression against the three Lao villages forms part of the annexationist designs of the reactionary forces of the Thai extreme right against Lao territory. It is the result of renascent pan-Thaiism. Their annexationist thirst will not be slaked by the occupation of just three villages. They still dream nostalgically of a past history of aggression and crime and want to revive it. History shows that from the sixteenth century to the twentieth century the reactionary leaders of Siam committed aggression and annexation against the bulk of Lao territory, and that for 115 years, from 1778 to 1893, they subjugated Laos and made it a vassal of Siam. During the Second World War, from 1941 to 1946, Thailand relied on fascism and militarism to compel France to cede to it the two Lao provinces on the right bank of the Mekong, that is, Sayaboury and Champassak. In the course of the most recent imperialist war of aggression against the countries of Indo-China, Thailand became a military base and sent its own troops to fight alongside the aggressors. They made of Thai territory a sanctuary for the Pol Pot gangs and their accomplices, who were guilty of genocide, and a refuge for Indo-Chinese reactionaries in exile, who were engaging in activities hostile to the peoples of Laos, Viet Nam and Kampuchea.

The aggression committed against the three villages is a

further step towards the implementation of the policy of hostility to the Lao People’s Democratic Republic followed for the past nine years. This policy has been marked by subversive activities of many kinds: acts of armed provocation; military pressure; the creation of tension that jeopardizes the security of Laos; an economic blockade; collusion with the expansionists and hegemonists in order to maintain, train, organize and direct Lao reactionaries in exile, who are able to use Thai territory as a base for the preparation of acts of sabotage against Laos and from which to carry out psychological warfare and foment attempts at destabilization. Furthermore, Thai propaganda sows discord among the multi-ethnic Lao people and division between Laos and Viet Nam and weakens the solidarity of the three peoples of IndoChina.

The historical facts I have mentioned prove that the fundamental, unchanged policy of the reactionary leaders against Laos is an expansionist policy and that in order to further it its adherents consistently rely upon imperialist and reactionary forces. .

The aggression against the three Lao villages forms part of the overall global designs of the extreme-right Thai reactionaries,

who are in collusion with the expansionists and hegemonists against Laos and Indo-China. This is illustrated by their diplomatic activities undertaken prior to these incidents and in the course of negotiations.

The Lao people cherishes its independence and freedom, won at the cost of a heroic struggle that lasted more than 30 years and entailed heavy sacrifices. Therefore the Lao people is determined to safeguard its independence, sovereignty and territorial integrity; at the same time, it always respects the independence, sovereignty and territorial integrity of other countries. Selfdefence is for any country a right enshrined in the Charter of the United Nations.

Before this body, on behalf of the Government of the Lao People’s Democratic Republic, I wish to reaffirm once again my country’s unswerving policy of developing friendly and good- neighbourly relations with the Kingdom of Thailand. Laos and Thailand are two independent, sovereign countries that maintain diplomatic relations of equality. The Lao and Thai peoples are linked by ethnic affinities and maintain fraternal relations. The»r two Governments signed two joint declarations in 1979 defining relations between them on the following bases: mutual respect for each other’s independence, sovereignty and territorial integrity; respect for each country’s right to choose its own way of life, free of interference or threat from outside; non-interference in the internal affairs of others and refraining from direct or indirect hostile acts against each other; settlement of disputes by peaceful means in accordance with the Charter of the United Nations and on an equal footing; refraining from the use or threat of force in their relations and the prohibition of other countries from using their territory as a base for intervening in, threatening or attacking other countries in any way whatsoever.

This is the fortunate result of the history of the establishment and strengthening of relations between the two countries. The Government of the Lao People’s Democratic Republic will strive to defend and respect scrupulously the spirit and the letter of those two joint declarations. However, wc demand that the Thai Government follow suit: the Thai side must forthwith withdraw its troops and administrative personnel from the three Lao villages ■totally and unconditionally, send home the villagers who were forcibly taken to Thailand, compensate the villagers for the losses in human life and property and restore the normal situation that prevailed in the region before 6 June 1984. Just recently, the Thai delegation stated before the General Assembly that “the...Thai Government has decided to remove the Thai military presence from the three villages”. (Aj39/PV. 17, p. 31)

We are both interested and puzzled by that statement. What reasons and motives led that Government to take such a decision at this time and despite the failure of the two rounds of negotiation in Bangkok? In this connection, my delegation would like to make the following points:

First, the statement on the withdrawal of the Thai troops is insincere, as it contains no guarantee and gives no precise hour, date, month or year for the total withdrawal. One day after that statement, the spokesman for the Thai Minister for Foreign Affairs, Mr. Savanith Khongsiri, told Associated Press on 3 October “that it is not a withdrawal, but a rotation”.

On 4 October, the magazine Far Eastern Economic Review, in ■an article entitled “Face on the line”, stated:

“Thai Foreign Ministry officials say that the recent border clash between Thai and Lao troops at Uttradit resulted from the Thai Army relying on inaccurate survey maps prepared by the United States Army in 1978 which erroneously locate Lao villages on the Thai side of the frontier. According to these sources, the Foreign Ministry urged caution but the army proceeded to fortify the three contested villages, in the conviction that they were within Thai territory, an act taken as a provocation by Lao authorities.

“Although the army has now accepted that United States maps may be in error, officials say considerable ‘face’ is involved and the army is resisting suggestions that it should quietly withdraw from the contested positions.”Secondly, Thailand stated it would withdraw its troops with

out, however, renouncing the maintenance of its administration, police force, para-military forces and administrative personnel in that part of our territory.

Thirdly, the withdrawal statement makes no mention of Lao


sovereignty over those three villages.Fourthly, the withdrawal statement says nothing about the

return home of the villagers captured by the Thai troops, or about compensation for the human and material losses suffered by the population.

It is therefore clear that the statement on the withdrawal of the Thai troops does not go to the heart of the matter, that is, recognition of Lao sovereignty over the three villages and the normalization of the situation in the region as it we before 6 June 1984. Its aim, in fact, is to mislead international and Thai public opinion, which vigourously condemns the Thai extreme rightist reactionaries for their aggression against part of Lao territory, and also to win the confidence of the international community in the Thai desire for peace in order to seek support for Thailand's- candidacy for membership of the Security Council.

I wish to take this opportunity to make an urgent appeal to the Security Council to urge Thailand to respond quickly to the legitimate aforementioned demands of the Lao side and to abide by the Charter of the United Nations in the international relations.

We believe that in this way it will be possible to normalize the situation on the Lao-Thai frontier and the relations between the two countries in order to meet the aspirations and interests of both peoples and contribute to the maintenance of peace and stability in South-East Asia.

2. STATEMENT BY H.E- BIRABHONGSE KASEMSRI, AMBASSADOR EXTRAORDINARY AND PLENIPOTENTIARY, PERMANENT REPRESENTATIVE OF THAILAND TO THE UNITED NATIONS, BEFORE THE U.N. SECURITY COUNCIL.NEW YORK, OCTOBER 9, 1984.

I should like, on behalf of my delegation, to extend to you, Sir, our sincere congratulations on your assumption of the responsibilities of the high office of President of the Securitv Council for

this month. The fact that council has deemed it fitting that you should assume the presidency so soon after your presidency in August is a tribute to your recognized qualities and diplomatic skill, as well as a sign of the high esteem in which your country, Burkina Faso, is held by the international community.

I should also like to felicitate His Excellency Ambassador Elleck Mashingaidze of Zimbabwe, President of the Security Council for the month of September, for his invaluable contribution to the fulfilment of the primary functions of the Council in the maintenance of international peace and security.

My delegation is grateful to you, Mr. President, and to the other members of the Council for the opportunity of coming before this body to present our stand on the issue of the three villages near the Thai-Lao border. Our gratitude is in no way diminished by the fact that, in the considered view of the Thai delegation, there exists no crisis, no situation, and indeed no issue deserving of attention by the representatives in this Chamber, who are already so much preoccupied with other business.

Allow me to extend my delegation’s greetings to His Excellency the Foreign Minister of Laos, in our common language. {spoke in Thai)

Sawasdl, Pana-Than.

{continued in English)

The Foreign Minister of the Lao People’s Democratic Republic has made very many polemical statements of late, attempting to justify the obviously well-organized and co-ordinated campaign on his side on three counts. First, he attempts to justify his campaign by alleging that Thailand violated Lao sovereignty, particularly by sending troops to occupy the three villages. Secondly, he alleges that, in so doing Thailand had designs on the whole border. In the statement he made before the General Assembly, in support of this argument he cited something called “pan-Thaiism”. Thirdly, he alludes to Thailand’s candidature for a non-permanent seat in this Council, thereby establishing a linkage between the issue of the three villages and that candidature.

I shall now proceed to deal with those points one by one.With regard to the first point, we should realize that the three

villages cover only an area of 18 to 19 square kilometres, with a

population numbering 1,100. These people are located in a remote and isolated part, deep in a mountainous and densely vegetated area, like small islands in the middle of an ocean. It has been and continues to be difficult to maintain access to them. The people are very poor, leading a meagre existence by subsistence farming on the hillside. They are of ethnic Thai-Lao origin, like most people who inhabit that vast corner of mainland South-East Asia. Indeed, people from this racial stock are scattered throughout southern China, northern Burma, northwestern Viet Nam, and of course Laos and Thailand. They have a common Inguistic tie and similar cultural traits and traditions.

I shall now enumerate the events that led to the recent incidents.

In the development plans, the Thai Government always given a high priority to road construction projects, not only to improve communications between different parts of the Kingdom, but also to provide access to rural areas. In our current five-year plan, there is a road-building project linking Nan and Uttaradit Provinces in northern Thailand. Construction began about two years ago, and the projected road runs well inside our border.

In March 1984—this is actually when the recent incidents occurred—the road engineers and workers were harassed by armed Lao soldiers. As a result, some lightly armed volunteers were sent to perform guard duty at the construction site.

On 15 April 1984—and, again, this event occurred even before the magic date of 6 June mentioned by the Lao Foreign Minister—Lao troops attacked these volunteers and some members of the border police well inside our territory.

Between 24 and 25 May 1984 there was again a clash between Lao troops and the Thai guardsmen four kilometres inside Thailand.

On 28 May 1984 the Royal Thai Government sent a note to the Government of the Lao People’s Democratic Republic requesting an inquiry into the above-mentioned incidents and calling for immediate consultations between the two sides at the local level.

Here I should explain that there exists long-established machinery between Thailand and Laos for consultations and settlement of such problems. Apart from normal diplomatic channels, there is a Joint Border Committee, set up for the express purpose of solving problems of this nature at the Government and local levels. Provincial governors and officials on both sides also hold periodic meetings to cement ties in cultural and technical fields. Apart from trade links, there are several economic assistance projects extended by Thailand to Laos, including the agreement to purchase electric current fron Nam Ngum dam, which is a significant source of foreign exchange for Laos. This latter agreement stems from the ongoing co-operation between the riparian States in the lower Mekong basin to harness the mighty river for economic development.

The Lao response to the Thai note of 28 May 1984 was that instructions were not forthcoming from Vientiane to proceed with such consultations. Meanwhile, a study of available maps gave the Thai authorities reasonable grounds to believe that the three villages were indeed, either wholly or partly, inside Thai territory. By that time Lao harassment and intimidation had become incessant, so much so that road construction came to a standstill. On 6 and 7 June 1984 Thai regular troops were dispatched to provide protection and security for the work crew and to ensure continuation of the project. During this period, Thailand sought to clear up the issue through the Lao Embassy in Bangkok and the Royal Thai Embassy in Vientiane.

On 9 June 1984, the Government of the Lao People’s Democratic Republic launched a campaign of acrimonious slander against Thailand. There were, indeed, demonstrations in so many parts of the world, in Paris and in various other capitals, all stemming from this issue of three small villages. Simultaneously, Hanoi joined in with its slanderous campaign in support of the Lao side. Thailand refrained from making any public statement which might aggravate the situation, being convinced all the while that the issue could be resolved peacefully through normal diplomatic channels or through the existing bilateral mechanisms. Laos, however, increased the level of polemics, necessitating a clarification of the issue by Thailand. This was done on 21 June 1984 in a note to the United Nations Secretary-General.

That was followed by the invitation to the Lao side at the

beginning of July 1984 to send representatives to Bangkok for bilateral talks in order to resolve the problem in a peaceful manner.

The first round of talks was held in Bangkok between 21 and 23 July 1984. It might perhaps be categorized as exploratory and no agreement was reached except that the next round of talks would also take place in Bangkok. Despite the tremendous expenses for the Royal Thai Government, and the complaint of the Budget Bureau, Thailand agreed to continue as host, as it is our tradit:on not to withhold hospitality, especially towards the Lao people.

It was not possible to reach agreement on the various proposals. However, both parties publicly announced their concurrence on the need to adhere to the watershed principle on this issue.

The positions of the two sides at those talks can be summarized as follows:

First, while both sides agreed to cease military confrontation, Laos demanded unilateral withdrawal of Thai troops. Thailand proposed to withdraw troops if Laos would agree not to reintroduce forces into the area, pending verification by both sides

. of the exact location of the watershed. Laos rejected the Thai proposal.

Secondly, Thailand proposed that a Joint Technical Team <JTT) be set up to undertake verification of the boundary line and that both sides agree to be bound by the JTT’s findings. The Thai proposal was rejected by Laos.

Thirdly, Laos demanded that Thailand compensate it for -damage caused to the villagers. Thailand denied that any damage had been caused, but nevertheless proposed that both sides agree jointly to assess the damages which might have been suffered by the villagers and jointly to consider measures of assistance to these victims.

Fourthly, Laos demanded that Thailand return the villagers to their homes. Thailand reassured Laos that no villagers were taken away or held by Thai authorities.

In a note dated 23 August 1984 from the Permanent Representative of Thailand to the Secretary-General of the United Nations,

“which was circulated as document S/16712, it was further made <lear that, after an impasse was reached in the talks, the Thai side still felt that ways and means should be found to resolve the issue urgently in order to promote brotherly and friendly relations between Laos and Thailand, particularly between the peoples of the two countries.

The Royal Thai Government, therefore, sent its own technical team to undertake a survey in the area, in order to determine the exact location of the boundary. Should there be any doubt as to its finding, Thailand announced its readiness to have impartial experts conduct an independent survey on the terrain to verify Thai findings. At the same time, Thailand appealed to Laos not to engage in any military actions while the technical team was in the process of carrying out its peaceful mission. Unfortunately, the Thai appeal was not heeded. On the contrary, the Lao side mounted acts of provocation and harassment, thereby making it impossible for the Thai technical team to perform its task.

These Lao acts of provocation and harassment have been reported to the Secretary-General and subsequently to the Council in documents S/16719, S/16733, S/16747 and, more recently, by my note dated 26 September 1984. There incidents caused several Thai casualties, resulting in six deaths, and much damage to property.

On 2 October 1984, the Minister of Foreign Affairs of Thailand made the following statement in the General Assembly of the United Nations:

“With reference to the incidents near the Thai-Lao border, my Government regards them as minor border incidents which can unfortunately occur in any part of the world. The issue itself concerns only three small remote villages covering an area of 19 square kilometres and a population of 1,100 people. The matter arose when Lao troops began harassing a Thai work crew building a road some distance from those villages and well inside our border. Once military actions had taken place, it became difficult for either side to yield for fear of giving advantage to the other side.

“This bilateral issue was further complicated by an undue

interference from a third country, which has seized upoi> the opportunity to divert world attention from its military occupation of Kampuchea and to introduce an extraneous- factor in the form linkage to the Kampuchean problem.

“It has long been the policy of the Royal Thai Government to maintain good-neighbourly relations with Laos. The issue of the three villages should not be permitted to stand in the way of improved relations between the two peoples, who speak the same language and have relatives on both sides of the border. Therefore, despite efforts of the other side to impede progress towards a peaceful settlement, the Royal Thai Government has decided to remove Thai military- presence from the three villages in order to defuse the situation and bring about a peaceful solution to the problem.”(A/391PV. 17, pp. 28-31)

This peaceful initiative by the Royal Thai Government has- led to the redispositioning of Thai troops away from the three villages. Needless to say, without military protection it is no longer possible for Thai civilian personnel to remain in the area,, because of possible harassment by Lao forces. The crisis has* therefore, become a non-crisis, and the first pretext by Laos has been deflated.

The crux of the matter boils down to the basic disagreement over the exact location of the boundary line in this small, remote, mountainous and forested area. The problem may be termed & technical one, because of the need for a joint survey to determine where the watershed line is actually located.

Regarding the second point raised by the Lao Foreign Minister, namely, that Thailand had designs on the whole length of the border, permit me to make the following observations.

The Royal Thai Government firmly adheres to the principles and purposes of the United Nations Charter, as well as the rules of international law and the generally accepted norms of conduct between States.

The Franco-Siamese Treaty mentioned by Laos was concluded at the time when the Siamese Government was in no position to resist certain encroachments by the French colonial administration in Indo-China. As a consequence, the Treatly imposed undue disadvantages on Thailand to the benefit of Laos, which was then under French rule.

Despite the natural desire of Thailand to renegotiate the unequal and inequitable provisions of the Treaty, successive Thai Governments have endeavoured to uphold the larger interest of good-neighbourliness with Laos.

I should also point out that the map distributed by the Lao side was made by French cartographers during the same period as the Treaty. It uses a scale so small that it is not suitable for the purpose of verification of the boundary line in the said area. However, both the Thai and Lao sides are clear on the principle to be used to delineate this part of the Thai-Lao border. They concur in the watershed principle, in conformity with the Treaty.

In light of the foregoing, Thailand’s effort to set up a joint technical team should be appreciated. Considering the remoteness of the three villages and the rugged terrain, mere possession or occupation cannot, per se, be proof of ownership.

Now that Thai troops have been redeployed away from the three villages thanks to the constructive initiative of the Royal Thai Government and its armed forces, there should be no obstacle to Laos’ agreeing to establish a joint technical team with the Thai side. However, if Laos should now decide to renege on its stand in this regard my delegation is ready to request the Secretary-General to dispatch to the area a fact-finding mission for an on-site survey with the assistance of both Lao and Thai technical experts.

Meanwhile, both sides should refrain from any actions which might create a crisis of the present non-crisis. Such mutual restraint should extend to polemical debates and attacks on each other. The issue, which is a bilateral issue, should not be subject to any third-party interference or exploitation whatsoever.

Finally, it is not entirely surprising that the issue of the three villages has been linked by the Foreign Minister of Laos to Thailand’s candidature for membership on the Security Council, both in his statement before the General Assembly and in his statement in the meeting of the Movement of Non-Aligned Countries, as well as his statement here today. This linkage may indeed by the capstone of the whole Lao effort to malign and vilify Thailand’s-


good name. Despite all the acrimonious rhetoric the issue of the three villages may not be regarded by Laos as a big issue at all but Thailand’s candidature certainly is. This, for instance, would explain the fact that in his statement before the General Assembly the Lao Foreign Minister took no note of the peaceful initiative of the Foreign Minister of Thailand. Instead, he proceeded to cast aspersions and vituperance on Thailand. This would explain the Lao effort to have the meeting of countries members of the Non- Aligned Movement condemn Thailand. This would explain the Lao request for the present meeting of the Security Council. This would, of course, explain the ignoble linkage itself.

Indeed, it became obvious to my delegation that the original acheme, hatched in darker recesses than the Lao Mission, was to obstruct Thailand’s candidature by ensuring that the elections would take place concurrently with a Council debate on Thai-Lao border incidents. The master plan was to make use of the obvious advantages that Laos has in the Non-Aligned meeting to create an artificial controversy and then to follow with a Security Council •debate at the same time that the elections were taking place in the General Assembly. The plot thickened as the election day ■approached. Then came Thailand’s peaceful initiative to defuse the situation. The conspirators were caught in an awakward position and had to move up their time-table with an earlier request for the Council’s meeting. Now that the members of the Non-Aligned Movement have refused to be parties to the scheme it remains to be seen what further steps in this well-orchestrated master plan will be taken by Laos to serve the interests of others.

I do not intend to dwell on our candidature, as this is not the appropriate time or place, and since my delegation is not the one that links the two matters together.

Permit me instead to summarize the stand of the Royal Thai Government on the issue of the three villages. That stand is as follows:

One, Thailand is desirous of maintaining and improving its relations with neighbouring Laos.

Two, Thailand is desirous of seeing an independent, sovereign, Neutral and non-aligned Laos.

Three, Thailand does not harbour any desire for even an inch of Lao territory or a single Lao national. Indeed, Thailand is already burdened with over 70,000 refugees from Laos, and it would be helpful if Laos were to agree to accept them safely back.

Four, Thailand is mindful of the plight of land-locked and least developed countries, including Laos.

Five, to defuse the situation Thailand has removed Thai military presence from the three villages. If Laos should resume military actions or harassment of Thai workers, then the full onus of responsibility would be on the Lao side.

Six, both sides should refrain from polemical or propaganda attacks on each other and should prevent any third-party interference in what is a bilateral issue.

Seven, Thailand is prepared to accept the establishment of a joint technical team or of a fact-finding mission of the Secretary- General of the United Nations, with assistance from Lao and Thai technical experts.

Eight, Thailand is prepared to accept the result of the findings of the joint technical team or mission, provided Laos agrees to the same.

Nine, if the findings are not conclusive Thailand is prepared to resort to an impartial, independent technical expert or group of technical experts acceptable to both sides.

Ten, Thailand would be prepared to resume negotiations with Laos on the basis of such findings in order to resolve the issue in a peaceful and constructive manner.

Having listened to the disparaging and acrimonious statements- from the Lao side, from the Foreign Minister of Laos on down, it is hardly surprising that earlier negotiations have broken down. It is now time for the Lao delegation to heed its own counsel and to reflect on its own national character, of which the most attractive qualities are the dignity and gentleness which have won for it so many friends.

It is the earnest hope of my delegation that, despite occasional problems between two neighbours, both countries—Thailand and the Lao People’s Democratic Republic—will look forward to a future of peaceful and constructive relations as befits two peoples who share a common language and age-old culture. The issue of

the three villages should not be like the small pea in the fable about the princess with insomnia, nor should it become a pretext for extraneous causes espoused by others or a wedge driven by others to divide the fraternal peoples of Laos and Thailand.

My delegation also hopes, Sir, that under your inspired presidency this Council will help create an appropriate atmosphere conducive to enhancing its role in accordance with the purposes and principles and provisions of the Charter, particularly to assist the parties in their effort to solve this bilateral problem peacefully and justly.

3. RIGHT OF REPLY EXERCISED BY H E. SOUBANH SRITHIRATH, VICE-MINISTER FOR FOREIGN AFFAIRS OF THE LAO PEOPLE’S DEMOCRATIC REPUBLIC, BEFORE THE U-N. SECURITY COUNCIL. NEW YORK, OCTOBER 9, 1984.

I think that the statement of the Minister for Foreign Affairs of Thailand on the withdrawal of troops in itself constitutes recognition of the aggression of his country against ray country. It is unnecessary to say any more. But what I should like to emphasize here is the question whether bad faith rests with the Lao side or with the Thai side.

There is a saying that happy people have no history. That is true provided that certain leading circles in other countries do not ■create too many problems for them and do not consider relations between States as if they were taking place in a jungle. Thus it is with complete sincerity that the delegation of the Lao People’s Democratic Republic regrets that a portion of its territory is occupied by Thai troops and that this problem has to come before this body. We regret this fact not because the problem does not deserve such consideration; on the contrary, but because after two series of negotiations, which the Lao government delegation

under took in Bangkok from 22 July to 15 August, no positive outcome was arrived at in those efforts, which were carried out in good faith. Possessing the relevant title to sovereignty and the effective exercise of sovereignty for several centuries until 6 June 1984, the date of the occupation of that portion of Lao territory by Thailand, the Lao People’s Democratic Republic displayed its sincerity and its desire peacefully and expeditiously to settle this problem, by going to Bangkok, the capital of the army occupying Lao territory, to negotiate for more than one month with representatives of a country which committed premediated armed aggression against us.

That attempt to settle the question clearly shows that our side truly displayed good faith, sincerity and goodwill to settle this matter by peaceful means. Let us remind the representative of Thailand, who as usual has engaged in a long and misplaced discourse against Laos, of the words of the head of the Thai delegation, who stated at the end of the first round of negotiations:

“The Lao delegation deserves to be commended for its efforts to solve the conflict by peaceful means.”

After the Thai delegation unilaterally took the initiative of proposing the second round of negotiations, the spokesman of the Thai delegation stated on 5 August 1984:

“The dispute regarding the three villages cannot be settled around the negotiating table.”

In the face of such a statement, men of goodwill may wonder where it is that the delegation of Thailand would like to solve this dispute. Before replying to that question, let us ask a second question, the response to which will give members the key to the first question: Why is it that the Thai side perseveres in this error to the detriment of the legitimate interests of the Thai people and of the Lao people?

For those of us who have followed the developments in SouthEast Asia, the chronology of the trips of the Tnai leaders is revealing. Two days before the skirmishes against the local militia, which defended the three villages, and the occupation of

by th.c first Thai cavalry division, the Commander- in-Chief of the Thai Army, General Arthit Kamlang-ek, had just


returned from a trip abroad, including in his programme a factfinding mission on the events in the south of China. It must be- noted also that between the two rounds of Thai-Lao negotiations on the occupation of the territory of Laos, the Thai Foreign Minister, accompanied by the head of the Thai delegation to those negotiations, went abroad. That is an unfortunate chronology for Thailand and for the Thai-Lao bilateral relations.

Let us say in passing that visits of individuals from other countries to Bangkok have led to the same results. The cause of this is the same. It is always the collusion of the Thais with the expansionists acting against our country.

Let us now refer to the facts which show that the Thai side has never been willing to settle the problem of the three villages. Acting as annexationists and hegemonists, Thailand has committed aggression and occupied the territory of Laos. It will strive to maintain and perpetuate its illegal occupation in order to begin the first stage in the chain of the rebirth of pan-Thaiism, hoping little by little to swallow Laos, to do what it did not succeed in doing in the past in its alliance with fascism and imperialism during its aggression against Laos, thus questioning once again a historic boundary defined in 1904-1907, conducting military adventurism as part of their foreign policy and creating new hotbeds of tension and instability in the region.

The Thai side has never been willing to settle the problem of the three villages, as we have already said. It is significant that on 26 July, the date when the Lao delegation returned to Vientiane for consultations, waiting for the Thai Government delegation to return from its visit abroad, the strongman of Bangkok, General Arthit Kamlang-ek, brought together all the high officials of the three branches of the armed forces and of the police at an ultra secret meeting—according to the official reports of the police department—something which is very rare in Thailand, because we know that the army and the police do not get along well at all.

The content of that meeting was revealed quite by chance only on 20 August 1984, by the daily Siam Rath, managed by the Social Action Party, of which General Siddhi Savetsila, Minister of Foreign Affairs of Thailand, is the Vice-President. It stated:

“According to highly placed sources, during that meeting General Arthit Kamlang-ek has, in the name of national security, asked for the co-operation of the police so that it might replace the army in the occupation of the three Lao villages in the event of a possible future agreement at which the two sides may arrive concerning the problem of the sovereignty over the areas.”

“The police operations centre proposed sending units of the border police to replace the military forces on the ground. For psychological reasons they will have to change their green uniform for the khaki uniform of the municipal police.”

The units of the border police, established for purposes of social and political repression inside the country and provocation against neighbouring countries, are known for their cruelty and pillaging.

On 25 July 1984, the newspaper The Nation, which has good' sources among the ruling circles in Thailand, revealed that the Thai officials had clearly stated that despite a possible withdrawal by the Thai troops from the three villages, the latter would remain under Thai authority. In accordance with The Bankok Post of 25 September 1984, the first contingent of the inhabitants of the three villages was taken to Bangkok to receive paramilitary training and relieve the Thai troops, paramilitary training which was enlivened by visits to the flesh-pots of Bangkok and Pattaya and from the Commander-in-Chief of the Thai Army, General Arthit Kamlang-ek himself.

This long-standing desire of Thailand to occupy Lao territory' in one way or another is reflected in the thinking out loud which is enjoyed .so much by the Thai leaders. Publishing an interview with the Secretary-General of the Thai Security National Council, the newspaper Siam Rath, dated 30 July 1984, reported that the Secretary-General of the National Security Council, Colonel Prasong Soonsiri, had requested the Director-General of the Police to conduct psychological action in connection with the three villages. The targets of the psychological operation were to be the Lao population, those who supported the Lao, the non-aligned countries, the inhabitants of the three villages and the Thai people. That psychological operation was to be conducted in conformity with the guidelines established at the meeting held on 2C

June 1984 and attended by the heads of the three branches of the armed forces and the police and representatives of the Ministry of Foreign Affairs.

This is in no way a cartographic error or a “minor incident” but rather a systematic plan of aggression and occupation of a portion of Lao territory and this plan has several aspects. We have looked at the military, political and international aspects, which are very closely interrelated in this plan. The progressive unveiling of this plan by the Press and the Bangkok leaders meant the dropping of the last shield which was still camouflaging the annexationist and hegcraonistic policy of pan-Thaiism. On 5 August 1984, on the eve of the second round of the negotiations between Thailand and Laos, the newspaper of the party of the Thai Minister of Foreign Affairs advocated the organization of a plebiscite in the three villages occupied by the Thai Army since 6 June 1984. The best intentions of Laos therefore were unsuccessful in the face of this desire for annexation and hegemony on the part of the Thai leaders. As far as Bangkok is concerned, problems are not supposed to be solved; they are supposed to linger on and be further exacerbated for the benefit of pan-Thaiism: talk, talk, fight, fight.

My country, the Lao People’s Democratic Republic, known for its desire for peace, equity and justice, has done and will do everything it can in order peacefully and expeditiously to solve the problem on the basis of the principles stipulated in the two joint 'declarations signed in 1979 by the Prime Ministers of the two countries. While defending our legitimate interests in accordance with the relevant provisions of the Charter of the United Nations, we have attempted to safeguard the interests of Thailand and help it to save face, which explains the two rounds of negotiations held in Bangkok itself by the Lao Government delegation. Despite the unilateral break-off of the negotiations proposed by the Thai •side, we are ready to resume the negotiations any time and anywhere. Although the Lao position is legitimate, since the matter is one of settling a dispute with Thailand, the Lao People’s Democratic Republic knows that the best defence strategy is still -diplomacy. In this connection, the Lao People’s Democratic Republic scrupulously respects the provisions of the Charter of the United Nations.

As regards the issue raised by the representative of Thailand, namely, the manipulation of Laos by a foreign country, I should like to express my views as follows:

We have here a country, Thailand, which has committed aggression and then has occupied Lao territory and which is now accusing the Lao of having been manipulated in an underhanded way by Viet Nam. This is funny—actually it is sad—because it only reveals the military mentality of the extreme rightist reactionary leaders of Thailand. To set the record straight, let us quote a passage from the newspaper Bangkok World of 25 June 1984, which states:(Spoke in English)

“Supreme Command spokesman, Lieutenant General Samphao Sikhacha, has dismissed as a ‘rumour’, reports of a Vietnamese troop build-up near three disputed villages on the Thai-Lao border.”

(continued in French)

We believe that the issue of the three villages is serious because it involves aggression and occupation of Laos. What is more, what is serious is that Thailand is attempting to shirk its responsibilities and is not facing up to reality.

The representative of Thailand’s statement here is just polite words because he knows full well that the three villages belong to Laos. He knows that General Siddhi Savetsila, his Minister, publicly expressed regret in front of the Australian parliamentary delegation at the fact that he was absent from Bangkok when the matter arose. He knows that these three villages must be given back to Laos because they are Lao villages, because the Siam Rath

of 24 September 1984, the journal of the Social Action Party, of which Genera! Siddhi Savetsila is vice-chairman, concluded its editorial with these words:

‘ It is recommended that the three villages be returned once and for all to Laos.”

He knows that the Far Eastern Economic Review of 4 October 1984 stated in this connection:(spoke in English)

“Thai Foreign Ministry officials said that the recent


border clash between Thai and Lao troops in Uttaradit resulted from the Thai army relying on inaccurate maps prepared by the United States Army in 1978 which erroneously located Lao villages on the Thai side of the frontier. According to these sources, the Foreign Ministry urged caution, but the Army proceeded to fortify the three contested villages. Although the Thai Army accepted the United States map, maybe in error, officials said considerable face is involved and the army is resisting suggestions that it should quickly withdraw from the contested position.”(icontinued in French)

To err is human; it is unpardonable, however, to persevere in the error. But this is not really the point. Thailand is secretly carrying out a long-premeditated plan to pursue a policy of annexationist ran-Thaiism. That attempt having been discovered, it is now talking about the problem of face-saving, as reported in the Bangkok Post of 1 October 1984, according to which ‘‘General’ Kamlang-ek states that the unilateral withdrawal of troops from three villages will mean a loss of face for Thailand”. Is this really a problem of loss of face or simply an expression of the fury of the supporters of the expansionist policy of pan-Thaiism caught in the very act? All these facts are very distressing for Thailand—they show who is manipulating whom.

I should like next to deal with the third point raised by the Thai side, concerning the map. I think that we must choose between what is true and what is false. We know full well that Thailand is the country of Sithanonxay, that is, of the professional braggart made into a national hero by Thailand. What we do not know so well is how far the Thai side will push this “dirty-trick” mentality, for that is what it is, as we have seen on several occasions in connection with the occupation of Lao territory. To distort reality in order to fool others is to degrade oneself and, which is even more unpleasant, at the same time degrade others.

The map that we produced is there. It is the only relevant map for it is the outcome of the work of the Franco-Siamese commission on the delimitation of borders. That is the title of the commission provided for in article 3 of the Convention of 13 February 1984.

With regard to the Preah Vihear temple, the International Court of Justice ruled on 15 June 1962 on this map established by the commission on the delimitation of borders between Indo-China and Siam as follows:

“The Court considers that acceptance by the parties of the map in annex I incorporated this map in the convention rules, of which it became an integral part.”

Thailand, through the Army High Command, published an identical map on 18 February 1909 in the Siamese language. All the maps were distributed to the members of the Council.

It is astonishing that Thailand, which has requested and obtained funds from the United Nations Educational, Scientific and Cultural Organization (UNESCO) for the preservation of the Sukhothai and other archaeological sites as part of the heritage of mankind, should get involved in a sham quarrel about the old and new and set itself up as the champion of flashy modernism.

Thailand says that the so-called Thai map is more specific because of the kind of technology and the scale that were used. What biased lies there are in that short sentence. The map which we have submitted was called a French map by Thailand for its own purposes and to try to get it disqualified. It is not a French map, but a map drawn by the Franco-Siamese commission on the delimitation of borders between Indo-China and Siam, and it was annexed to the treaty of 23 March 1907. This map of the Franco- Siamese commission is the relevant one with regard to the three villages to the exclusion of any other maps which may have been drawn up unilaterally, such as the one in 1978.

This 1978 map, of which the Thai side has boasted, is not even a Thai map. It is an American map on which Bangkok, well known for its flourishing copying industry, has struck certain names in Thai and which it has then photocopied. That is the trick. That is indeed the case because, two weeks after the aggression against and occupation of this portion of our territory by the Thai army the Thai daily, The Nation, of 21 June 1984 revealed that Thai jurists had met on several occasions in an attempt to find legal arguments to prove Thailand*s rights over this

portion of Lao territory.Let us render unto Caesar the things that are Caesar’s. This

1978 map, drawn up by the United States Army, has a footnote which reads as follows:{spoke in English)

“Delimitation of international boundary must not be considered authoritative.”{continued in French)

This was a useful precaution because in each new edition of the map—in 1962, 1965, 1972 and finally in 1978—the United States Army changed the boundary showing the area of the three villages. This change by the United States Army proves several things. First, it proves that so-called advanced technology is not trustworthy—this is the least critical hypothesis. On the other hand, according to experts in the geodesic triangulation method utilized by the Franco-Siamese commission on border delimitation from 1904 to 1907, with a map on the scale of 1:200,000, the error, if there were one, would be of some 40 metres to 50 metres and therefore negligible. Secondly, the American services do engage in cartographic manipulation and we are therefore used to such things, which they do for psychological reasons, if only because most of these maps were drawn up during the period of their imperialist war of aggression in Indo-China.

I shall now take up the fourth of the issues raised by the Thai side, I wish to explain the view of my Government on the so- called technical on-site inspection team established by Thailand to attest to the veracity of the boundaries drawn up by France and Siam in accordance with the 1904 and 1907 agreements and the relative protocols.

Since these agreements were signed neither of the two countries concerned—France, and later the Lao People’s Democratic Republic, on the one hand and Thailand on the other has challenged the position of the border.

At the time of the visit of the Thai Prime Minister, General Kriangsak Chomanan, to Vientiane in 1979 and the visit of our Prime Minister, Mr. Kaysone Phomvihane, to Bangkok in the same year, the two sides had at no time expressed any doubts concerning the boundaries; rather, they reaffirmed the will of their respective Governments to ensure that the common border between the two countries should become a border of lasting peace andfriendship.lt was only in 1984, immediately following the visit of the Comniander-in-Chief of the Thai Army, General Arthit Kamlang-ck, that the question of the three villages became the subject of a challenge by Thailand. During the two rounds of negotiations in Bangkok the Thai side constantly called for a joint technical team to be sent to the site. Of course we refused to go along with the proposal, no matter what the composition—one- party, joint or tripartite—because we had already submitted to the- Thai side conclusive evidence based on the map that was drawn up by the Franco-Siamese commission with regard to the legal aspects of the problem, the administration and the population.

In a word, Lao sovereignty over these three villages has been established in absolute terms. The exercise of territorial jurisdiction by Laos over these three villages cannot be disputed. On the other hand, Thailand can show no valid deed, title or right and therefore no sovereignty over these three villages, except by virtue of its occupation resulting from the armed aggression committed after 6 June 1984.

If we accepted the Thai proposal to carry out a joint or unilateral inspection of the area around the three villages this would amount to: first, falling to recognize the agreements signed between France and Siam and therefore failing to recognize the inviolability of the border recognized in the past; secondly, enabling Thai reactionaries and expansionists to destabilize not only Laos but also Cambodia on the pretext of false boundaries, particularly since the reactionaries in Bangkok are attempting to create a sort of buffer State between Thailand and the People’s Republic of Kampuchea and thus establishing a dangerous precedent in the conduct of Thai policy towards its neighbours; and, thirdly, giving up our sovereignty over these villages and legalizing their occupation by Thai troops.

The fact that the Thai side unilaterally sent its own technical team to the area of the occupied Lao territory in no way proves its willingness to settle the problem by peaceful means. Rather, it is an attempt to distract world public opinion from the essence of the problem, which is Thai aggression against Laos and Lao


sovereignty over the three villages. Unilateral inspection is designed only to justify Thai retention of these three villages. .

This is the truth about Thailand’s conduct in this matter. The border question is a crucial problem which demands circumspection and caution on the part of Thailand, a spirit of goodneighbourliness, a desire to stabilize relations between the two countries—qualities which Thailand has in no way demonstrated in this case. On the contrary, Thailand has acted arrogantly. The border markings exist; the Thai Army removes or destroys them. The Lao administration, which has been in that territory for centuries, is expelled from it by the Thai Army. That is the real manoeuvre carried out by Thailand and these are the views of the Lao Government concerning so-called on-site inspection.

I shall now move on to the last part of my statement, which concerns the withdrawal of the Thai troops.

A country that is the victim of aggression and occupation -wants the aggressor and occupier to leave that country. Laos wants Thai troops to leave Lao territory; it wants Thailand to Tespect the independence, sovereignty and territorial integrity of Laos.

Unfortunately, a quite different situation has been created by Thailand. It is leading the relations between the two countries in a direction quite opposite to that whole-heartedly desired by the Lao and Thai peoples.

The logic of an army carrying out occupation and aggression •is to install itself, in one form or another, on territory that has been taken by force. Even while Thailand was negotiating with Laos at Bangkok, it planned and put into effect various measures to perpetuate its occupation of Lao territory, replace the army by border police units wearing the uniform of the municipal police, •replace the Thai military presence by paramilitary units wearing civilian clothes, and so forth.

The Foreign Minister of Thailand said the following on 2 October before the General Assembly:

“...the Royal Thai Government has decided to removethe Thai military presence from the three villages...;*

. (AI39Ipv. 17, P. 31)That innocuous phrase is replete with mental reservations and ulterior motives. 1 he Thai Foreign Minister speaks simply of removing the military presence, but he maintains a modest but eloquent silence about the Thai police, paramilitary and administrative presence in the three Lao villages. So we have subtlety in the Thai statements and perfidy in the Thai intentions and actions.

Unfortunately, this heralded removal of the Thai military presence has not taken place so far. Thailand talks about it a lot; its friends talk about it a lot; but nothing is happening. It is a non-event. What we are really faced with is a campaign of publicity and, as such, of lies, rather than real political will.

Otherwise, why did not the Thai Foreign Ministry notify the Lao embassy in Bangkok, or why did not its embassy in Vientiane discuss appropriate measures with the Lao Foreign Ministry? Thailand makes endless pronouncements about its good faith, its sincerity, its good-neighbourliness, its love of peace and peaceful settlements of problems, but it is very reticent about its real intentions and very miserly about taking concrete, consistent action. It could not be otherwise, since this announcement is nothing but a diversionary tactic.

Two days after the announcement made by the Foreign Minister of Thailand with such solemnity—to the General Assembly, General Thiab Kromsouriyachak, commander of the third military region and responsible for the operations against the three Lao villages that we are discussing, was interviewed by the Bangkok newspaper Matouphoum and stated that he had received no instructions about any removal from the three villages and knew nothing about the statement by the Foreign Minister. Perhaps New York is too far from Bangkok and Uttaradit, where the general lives.

But no, it is not a problem of communications. The Thai army has been stationed in the three Lao villages since 6 June, and it intends to stay there, purely and simply. The way in which this is done has little importance, as we learn from a dispatch by Agence France Presse from Bangkok dated 8 October:

“Thailand has begun to redeploy its troops stationed inthe three occupied Lao villages...a spokesman of the ForeignMinistry announced on Monday in Bangkok...Sources close to

the Thai General Staff and Foreign Ministry emphasized, however, that the redeployment announced on Monday did not amount to a removal,”

What a rich language Thai is: in one week we have gone from a “removal” to an “adjustment” to a “redeployment”.

In fact, this linguistic subtlety has the sole purpose of hiding the facts, facts that are incontestable on the spot. And what is happening on the spot?

In the three villages, Thailand has started bringing in reinforcements, both in manpower and in equipment, conscripting young persons by force, violating Lao air space with its reconnaissance aircraft, indiscriminately firing 75, 105 and 155 millimetre cannon at neighbouring villages, and causing thereby loss of life and property. Furthermore, the Thai army has continued its provocative operations in other border regions adjoining Laos, and has amalgamated Thai troops with Lao reactionaries in exile, for the purpose of carrying out acts of sabotage in southern Sayaboury Province. This army has threatened and held to ransom the people living on the banks of the Mekong, as well as commercial shipping.

According to information recently received from Laos and confirmed in the 9 October issue of the newspaper Bangkok

Post, on Friday, 5 October, the Thai army shelled three Lao villages, killing two persons and wounding five others; on Sunday,7 October that is, the day before yesterday—at about 5 p.m., at least 500 persons, including more than 100 families, were arrested and deported to Thailand. Now, according to still incomplete statistics, there had already been a first wave of arrests and deportations by Thailand of inhabitants of these three villages between 1 and 5 July, involving 438 persons. With those two figures, the number of victims taken to Thailand amounts to 938 of the 1,240 inhabitants of the three villages. Their houses, their gardens were burned and destroyed, their cattle were killed or taken away from them; their belongings were confiscated. This vandalism by Thai soldiers curiously reminds one of the policy of depopulating the neighbouring countries always pursued by Thailand; this policy is summed up in the curt order issued in 1828 by the Thai King Rama III to his general, Phaya Bodin, to raze Laos to the ground and make it a desert. He said: “Let nothing but water and land remain”.

Soon we shall see Thailand holding out its hat, begging for international assistance for the so-called refugees in this country. Once again we are going to witness a travesty undertaken by Thailand, turning its cruelty into a kind of self-interested philanthropy. The Thai leaders are growing fat and rich on the misfortunes of thousands upon thousands of people whose misfortunes they themselves have caused.

What can, what must Laos do in such circumstances? Should it turn the left cheek after having turned the right?

The Lao People’s Democratic Republic has always chosen the- policy of the peaceful settlement of disputes between the two countries by means of negotiation, on the basis of the principles laid down in the two joint declarations of 1979. Nevertheless, it is determined to exercise its legitimate right of self-defence to preserve its independence, sovereignty and territorial integrity, a. right which hitherto it has not chosen to resort to.

Perhaps it might be worthwhile and it would not be superfluous to read Article 51 of the United Nations Charter just to refresh the memory of those who tend to forget it. This is Article 51 of the Charter:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations...”.

4. RIGHT OF REPLY EXERCISED BY H.E. BIRABHONGSE KASEM- SRI, AMBASSADOR EXTRAORDINARY AND PLENIPOTENTIARY, PERMANENT REPRESENTATIVE OF THAILAND TO THE UNITED NATIONS, BEFORE THE U-N. SECURITY COUNCIL.NEW YORK, OCTOBER 9, 1984.

Having listened very carefully to the statement by the representative of Laos, I must say that it could perhaps be divided into two parts, one being concerned with technical matters regarding.

[1985] AUSTRALIAN INTERNATIONAL LAN NEKS 214

the boundary line that might more appropriately be raised in bilateral discussions between Laos and Thailand.

The second part was highly polemical and I must say that Lao representative has exceeded quota of poison and polemics. This may derive from a figment of his own imagination or of his paranoia. Be that as it may, I think he has given Thailand more credit for subtlety than it deserves, either linguistically or otherwise, linguistically since we share the same language and we do not have the gift of inventing long words like “reactionaries’* and “military cliques” and so on. This we have to borrow from our Lao colleague.

What is more important about his statement is that he takes the approach: “Let’s have the cake and eat it too”. For instance, with regard to our conciliatory initiative and effort to remove the Thai military presence from the three villages, he said that we did not remove our troops or, even if we did, then we did not remove the civilian administrative officials or the lightly armed paramilitary forces. I am not a military man, but it would seem

That under such difficult circumstances as harassment from the Lao soldiers, and in view of the rather difficult terrain, logically the most vulnerable elements should be removed first rather than left behind without military protection to become easy targets for Lao guns. This should seem quite logical I think, to most of us in this Chamber.

We take a different approach. Our approach is that, when in doubt, let’s go and take a look together, and it boils -down to what I have referred to as the technical point at issue, namely, where is the watershed line located? and that is all.

The Lao representive also mentioned two things which I feel compelled to say need some clarification. He started off by saying that my Foreign Minister’s statement on the withdrawal of troops constitutes an admission of aggression against Laos. If such a conciliatory initiative or effort is to be interpreted as an admission of aggression, then the converse must also be true, namely, that whichever party or whichever side continues confrontation would have title to the land in question, would it not? Where would this interpretation lead us? Let us look at a concrete example.

In the southern part of Africa we know that South Africa adamantly refuses to remove its military presence from Namibia. Does that mean, then, that South Africa has a just title to Namibia ? It a position which my delegation regards as completely untenable. I could cite other examples but that would take time.I think this one single example is illustrative of the kind of subtlety engaged in by the representative of Laos.

He also mentioned the visits made by dr Supreme Commander, implying of course that there must have been some kind of premeditated action in relation to the three villages.

It so happens that the Supreme Commander had planned those visits well in advance, as is most often the case. He receives invitations from many quarters. In fact, he is invited right now by the Soviet Government to visit the Soviet Union. If he should accept such an invitation or invitations, would that automatically mean that he is in collusion with bis good hosts? It is this kind of talk that explains the reason why earlier negotiations have not brought any fruitful result.

For its part, the Royal Thai Government wishes to conduct constructive negotiations, but we certainly will not permit the negotiations to become a propaganda forum, because that will not lead to any fruitful outcome. On the contrary, it will exacerbate tension, it will encourage third-party interference and it will not bring a peaceful solution any closer.

As I have said, the issues are minor border incidents which could occur in any country in any part of the world, and there is no reason why these incidents, happening in such a remote region, should become an obstacle to improved relations between two brotherly peoples who speak the same language.

5. RIGHT OF REPLY EXERCISED BY H.E. SOUBANH SRITHIRATH, VICE-MINISTER FOR FOREIGN AFFAIRS OF THE LAO PEOPLE’S DEMOCRATIC REPUBLIC, BEFORE THE U.N. SECURITY COUNCIL NEW YORK, OCTOBER 9, 1984. I

I should just like to say a few words about the last statement by the representative of Thailand. I would be happy were Thailand

to respect the principle of the inviolability of borders, to which the representative of Thailand referred just now with regard to South Africa. He knows this very well because Thailand itself is comparing itself with South Africa.

I do not wish to dwell on this point, rather, I should like to say a few words by way of concluding my statement here in the Council.

FINAL STATEMENT BY H.E. SOUBANH SRITHIRATH, VICEMINISTER FOR FOREIGN AFFAIRS OF THE LAO PEOPLE’S DEMOCRATIC REPUBLIC BEFORE THE U.N. SECURITY COUNCIL. NEW YORK, OCTOBER 9, 1984.

It is a great pleasure, Sir, for the delegation of the Lao People’s Democratic Republic to express to you our profejnd gratitude for the way in which you have considered our request to convene an urgent meeting of the Security Council to examine the situation on the Lao-Thai frontier, a situation created by the occupation of -a part of Lao territory on 6 June 1984 by Thai troops. The way in which you have conducted these proceedings, your actions and your words, demonstrate your love for peace and your concern at anything that may threaten it.

We should also like to extend our sincere gratitude to all the members of the Security Council who agreed to the urgent convening of this body.

Since it is quite unlikely that Thailand will really cease its occupation of part of Lao territory, we should like to request that the Security Council remain seized of this matter until it is brought to a successful conclusion. In so doing the Council would be rendering a service to the Royal Thai Government and to the peoples of the two countries who are united by ties of blood, of •culture, of habits, traditions and religion, and enable them to live together in peace and good-neighbourliness on the basis of the joint declarations made by the two countries in January and April of 1979. In facing the future resolutely, the Government of the Lao People’s Democratic Republic will do all in its power to achieve that goal.

7. STATEMENT BY H.E. BASILE GUISSOU, PRESIDENT OF THE SECURITY COUNCIL, MINISTER FOR FOREIGN AFFAIRS OF BURKINA FASO, BEFORE THE U.N. SECURITY COUNCIL.NEW YORK, OCTOBER 9. 1984.

I thank the representative of the Lao People’s Democratic Republic for the kind words he addressed to me and to the other members of the Security Council.

There are no other names inscribed on the list of speakers for this meeting. The next meeting of the Security Council to continue consideration of the item on the agenda will be fixed in consultation with the members of the Council.

THAILAND AND VIETOAM*

Upon the instructions of my Government ana pursuant to my note, I wish to bring to your attention the latest acts of armed aggression perpetrated by the Vietnamese forces against the Thai people and the sovereignty and territorial integrity of Thailand as follows:

1. Since Vietnamese launched its dry season offensive on November 18 against KPNLF positions at Nong Chan encampment opposite Ta Phraya District, Prachinburi Province, a number of Vietnamese artillery shells have landed inside Thai territory at Ban Nong Chan,Ban Non Mak Mun and Ban Khok Sung, Ta Phraya District, Prachinburi Province, resulting in five Thai villagers being seriously injured and causing damages to Thai citizens' properties. The Vietnamese attacks also caused a new influx of over 20,000 Kampucheans into Thailand.

2. Moreover, on November 26 at 05.00 hrs, a number of Vietnamese troops made an incursion into Thai territory southwest of Ban Non Mak Mun, and clashed with Thai troops. As a result, one Thai soldier was killed and eight others injured.

The RTG strongly condemns these unprovoked acts of aggression by Vietnamese troops in violation of Thailand's sovereignty and territorial integrity and, once again, reaffirms its legitimate right to undertake all necessary measures in order to protect the lives of innocent Thai citizens and to safeguard Thailand's sovereignty and territorial integrity.

The RTG urges the Vietnamese Government to excercise self-restraint and to cease committing acts of armed aggression against Thailand for which the Vietnamese Government bears full responsibility for the consequences.

I have the honour to request that the text of this letter be circulated as an official document of the General Assembly and of the Security Council .

*(This document, a message from the Thai Permanent Representative to the U.N. Secretary General dated 27 November 1984 was supplied by the Royal Thai Embassy Canberra.)



KAMPUCHEA

COMMUNIQUE OF THE COUNCIL OF MINISTERS OF THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA

THE FIFTH MEETING OF THE COUNCIL OF MINISTERS OF THE COALITION OF DEMOCRATIC KAMPUCHEA WAS HELD ON 3 FEBRUARY 1985 UNDER THE HIGH CHAIRMANSHIP OF HIS ROYAL HIGHNESS SAMDECH NORODOM SIHANOUK,PRESIDENT OF DEMOCRATIC KAMPUCHEA, WITH THE PARTICIPATION OF HIS EXCELLENCY MR SON SANN, PRIME MINISTER OF THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA, AND HIS EXCELLENCY MR KHIEU SAMPHAN, VICE-PRESIDENT OF DEMOCRATIC KAMPUCHEA IN CHARGE OF FOREIGN AFFAIRS.

THE COUNCIL OF MINISTERS EXPRESSES ITS SATISFACTION OVER THE FAVOURABLE DEVELOPMENTS OF THE SITUATION IN KAMPUCHEA IN EVERY FIELDS MILITARY, POLITICAL AND DIPLOMATIC. IN PARTICULAR, THE MILITARY SITUATION IN THE CURRENT 7TH DRY SEASON IS BETTER THAN IN THE LAST 6TH DRY SEASON. THE VIETNAMESE ENEMY'S MILITARY SITUATION HAS BEEN REGULARLY DECLINING OVER THE PAST 6 YEARS. THE MORALE OF THEIR TROOPS KEEPS FALLING AND VIETNAM CAN NO MORE BE THE SUPPORT BASE OF THE VIETNAMESE WAR OF AGGRESSION IN KAMPUCHEA. AS FOR OUR RESISTANCE FORCES, THEY STRIKE AT THE ENEMY EVERYWHERE INSIDE KAMPUCHEA. IN THE TONLE SAP AREA, OUR FORCES HIT MORE STRONGLY THE VIETNAMESE ENEMY ALONG THE BANK AS WELL AS DEEPER INSIDE KAMPUCHEA, SERIOUSLY THREATENING THEM. IF THEY TRY ONLY TO CHECK OUR RESISTANCE FORCES INSIDE KAMPUCHEA, THEY ARE SURE TO LOSE THEIR WAR OF AGGRESSION IN KAMPUCHEA. THAT IS WHY THEY ARE STRIVING TO CONCENTRATE THEIR TROOPS AND ATTACK US ON THE WESTERN BORDER OF KAMPUCHEA FOR THE PURPOSE OF CHECKING US AS WELL AS FOR PROPAGANDA PURPOSES. BUT THEIR EFFORTS WILL BE OF NO AVAIL AS THEIR CONCENTRATION OF TROOPS ON THE BORDER LEAVES INSIDE KAMPUCHEA RATHER EMPTY, WHICH OFFERS A GOLDEN OPPORTUNITY FOR OUR RESISTANCE FORCES TO STRIKE DEEPER AND DEEPER TO THE EAST. MOREOVER BY COMING TO THE BORDER FRONT, THE VIETNAMESE ENEMY HAVE ENTERED OUR LINES OF DEFENCE ENABLING US TO INFLICT HEAVY CASUALTIES UPON THEM.

THE COUNCIL OF MINISTERS IS OF THE VIEW THAT THE VIETNAMESE LAST-DITCH MILITARY EFFORTS AGAINST THE THREE PARTIES OF THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA DURING THE CURRENT DRY SEASON PROVES THAT THE COALITION GOVERNMENT IS GAINING STRENGTH MILITARILY AS WELL AS WIDER POLITICAL INFLUENCE IN CAMBODIA AND ABROAD. THE COUNCIL ALSO TOOK NOTE THAT THE CURRENT MURDEROUS ATTACKS BY THE ENEMY AGAINST ARMED FORCES OF THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA AND AGAINST THE CIVILIAN POPULATION, FAR FROM LOOSENING THE BONDS WHICH UNITE THE THREE FACTIONS OF THE COALITION TOGETHER, CONTRIBUTED TO FURTHER REINFORCE THESE BONDS, NOT ONLY BETWEEN THE THREE PARTIES BUT MORE AND MORE BETWEEN THEM AND OTHER KHMER PATRIOTS EVERYWHERE.

THE COUNCIL OF MINISTERS IS THEREFORE DETERMINED TO FURTHER ENHANCE ITS UNITY IN THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA WITH SAMDECH NORODOM SIHANOUK AS PRESIDENT OF DEMOCRATIC KAMPUCHEA IN ORDER TO CARRY ON THE STRUGGLE AGAINST THE VIETNAMESE ENEMY UNTIL THEIR TOTAL WITHDRAWAL FROM KAMPUCHEA IN ACCORDANCE WITH RELF.YANT U.N. RESOLUTIONS.

... ................................................... ... " "" ' '' '» .................................... .I|l I«V Ill'll. I 1,1,1111- |ll HI


THE COUNCIL OF MINISTERS THEN PROCEEDED TO EXAMINE A WIDE RANGE OF ISSUES AND PROBLEMS CONFRONTING THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA. THE COUNCIL OF MINISTERS AGREED TO ADOPT A NUMBER OF MEASURES WHICH WOULD LEAD TOWARDS INCREASING THE EFFECTIVENESS AND EFFICIENCY IN ALL ASPECTS OF ITS STRUGGLE AGAINSI THE ENEMY.

THE COUNCIL OF MINISTERS STRONGLY CONDEMNS ONCE AGAIN:

- THE VIETNAMESE MANOEUVRES TO SPLIT THE TRIPARTITE COALITION:- THE MOST INHUMANE CRIMES OF GENOCIDE PERPETRATED BY THE

VIETNAMESE ENEMY AGAINST THE PEOPLE OF KAMPUCHEA THROUGH THEIR POLICY OF STARVATION AND BRUTAL LEVY OF THE POPULATIONTO CLEAR THE JUNGLES ALONG THEIR SUPPLY LINES THROUGHOUT THE. COUNTRY:

- THEIR COWARD ATTACKS AGAINST THE CIVILIAN CAMPS OF REFUGEES ALONG THE BORDER WITH THAILAND:

- THEIR BASE POLICY OF ' 'VIETNAMISATION' * OF KAMPUCHEA. THROUGH THE MASSIVE INFLUX OF VIETNAMESE SETTLERS WITH A VIEW TO SWALLOWING KAMPUCHEA.

THE COUNCIL OF MINISTERS ONCE AGAIN DECLARE THAT ONLY WITH THE TOTAL WITHDRAWAL OF THE VIETNAMESE FORCES OF AGGRESSION FROM KAMPUCHEA IN ACCORDANCE WITH RELEVANT U.N. RESOLUTIONS VOTED BY AN OVERWHELMING MAJORITY FOR 6 CONSECUTIVE YEARS ALREADY, CAN THE PROBLEM OF KAMPUCHEA BE SOLVED.

THE COUNCIL OF MINISTERS ALSO ACKNOWLEDGES WITH SATISFACTION THE GROWING SUPPORT WHICH THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA ENJOYS FROM THE INTERNATIONAL COMMUNITY, A VIBRANT AND UNDENIABLE TESTIMONY OF THE RIGHTNESS OF ITS CAUSE.

THE COUNCIL OF MINISTERS WELCOMED THE DECLARATIONS MADE BY VARIOUS GOVERNMENTS CONDEMNING THE LATEST CRIMES PERPETRATED BY THE ARMED FORCES OF THE SOCIALIST REPUBLIC OF VIETNAM AGAINST POPULATION CENTRES UNDER THE ADMINISTRATION AND CARE OF THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA. BY DECIDING TO ATTACK CIVILIAN CENTRES, THE VIETNAMESE AGGRESSORS CONFIRMED THEIR NURTURED HOPE TO EVENTUALLY IMPOSE A MILITARY SOLUTION ON THE KHMER PEOPLE DESPITE THE DESIRE OF THE INTERNATIONAL COMMUNITY FOR A POLITICAL SETTLEMENT OF THE PROBLEM OF KAMPUCHEA AS WITNESSED BY UNITED NATIONS RESOLUTIONS ON KAMPUCHEA ADOPTED EVERY YEAR BY AN EVER INCREASING NUMBER OF COUNTRIES.

VIETNAM'S ACTION ALSO BROUGHT TO LIGHT ITS INSINCERITY AS TO ITS OFT-REPEATED PROPOSITION TO NEGOTIATE A PEACEFUL SETTLEMENT TO THE CAMBODIAN PROBLEM. IT ALSO SHOWED VIETNAM'S DIFFICULTIES IN THE PURSUIT OF ITS ANNEXATIONIST AMBITIONS: IT IS DIPLOMATICALLY ISOLATED, IS HAVING SERIOUS ECONOMIC DIFFICULTIES AT HOME, IS PLAGUED WITH INTERNAL POLITICAL PROBLEMS, ETC. THE COUNCIL OF MINISTERS THEREFORE CALLED UPON THE INTERNATIONAL COMMUNITY TO CONTINUE TO KEEP UP ALL SORTS OF PRESSURE ON VIETNAM IN ORDER TO FORCE IT TO EARNESTLY SEEK A POLITICAL SOLUTION TO THE CAMBODIAN PROBLEM.


THE COUNCIL OF MINISTERS EXPRESSED ITS MOST SINCERE APPRECIATION TO THE SECRETARY-GENERAL OF THE UNITED NATIONS» HIS EXCELLENCY MR JAVIER PEREZ DE CUELLAR, FOR HIS PART IN THE COMMON EFFORT TO FIND A PEACEFUL SOLUTION TO THE KHMER PROBLEM ON THE BASIS OF THE U.N. RESOLUTIONS DESPITE THE OBSTINATE REFUSAL OF THE VIETNAMESE AGGRESSORS TO ACCEPT THEN.

THE COUNCIL OF MINISTERS AVAILS ITSELF OF THIS OPPORTUNITY TO RENEH ITS DEEPEST THANKS TO ALL INDEPENDENCE AND PEACE-LOVING COUNTRIES THE NORLD OVER FOR GRANTING THEIR SUPPORT AND ASSISTANCE TO THE JUST STRUGGLE OF THE PEOPLE OF KAMPUCHEA AGAINST THE VIETNAMESE AGGRESSORS UNDER THE LEADERSHIP OF THE COALITION GOVERNMENT OF DEMOCRATIC KAMPUCHEA WITH SAMDECH NORODOM SIHANOUK AS PRESIDENT OF DEMOCRATIC KAMPUCHEA.

KAMPUCHEA, 3 FEBRUARY 1985

[198 s) AUSTRALIAN INTERNATIONAL LAN NEWS 219

EAST TIMOR; INDONESIA AND AUSTRALIA

Extract of speech by the Indonesian Ambassador of Australia Mr. August Marpaung, 20th June 1984.*

Another question of Australian public interest is East

Timor. East Timor has been an integral and inseparable part

of the Republic of Indonesia since July 17, 1976 and its

status is now irreversible. Cocos Islands of course is also

an integral part of Australia.r

The process of decolonization in East Timor has been

completed through the implementation of the right to self

determination by the people of East Timor. The process of

decolonization was terminated when the Territory became

independent through integration with Indonesia in accordance

with the principles of the United Nations Charter and relevant

United Nations resolutions, namely Res 1514 (XV), 1541 (XV)

and 2625 (XXV).

Much has been made of the non-involvement of the United

Nations when the people of East Timor were actually realizing

their right to self-determination. In fact, a delegation of

the Provisional Government of East Timor was despatched to Ne,w

York and Geneva with the sole purpose of meeting with andv

inviting the relevant UN organs to participate in the

decolonisation process. Regrettably, all of these invitations .

were accorded a negative response. Nevertheless, the

*(His Excellency addressed the National Press Club, Canberra on 20 June 1984.The text of the extract of his speech relating to East Timor was made available by the Embassy of the Republic of Indonesia, Canberra.


Provisional Government of East Timor never failed to report

each and every stage of the decolonisation process to the

Secretary-General of the UN, to his Special Representative, to

the Security Council and to the Committee on Decolonisation.

Principle IX (b) of Resolution 1541 (XV) states that with

regard to integration, "the United Nations could, when it

deems necessary, supervise these processes." It is clear,

therefore, that the participation of the UN in the process of

decolonisation, while laudable, is certainly not mandatory.

Claims have been made suggesting that Fretilin was the

predominant party in East Timor in November 1975, when it uni

laterally declared independence of the Territory. Nothing is

further from the truth. As a matter of fact, Fretilin was

only one of five parties existing in East Timor. Fretilin was

the only party which refused to participate in the Macao

conference in 1975 and other meetings organised by Portugal to

discuss the orderly decolonisation of East Timor. The other

four parties were Apodeti, UDT, Kota and Trabalhista. By

Portugal * s own admission, and as widely recognised by unbiased

observers, the UDT was clearly the largest party among the

five, since it received the support of 230 of the 472 existing

sukus (clans) in the Territory. Hence, the four parties

clearly represented the overwhelming majority of the people of

East Timor and were in actual control of the Territory in May

1976 at the time of the election. - *


The Indonesian nation is not based on racial

considerations, within its length and breadth it encompasses a

mosaic of racial and ethnic groups, mostly of

Malay-Polynesian-Melanesian stock but also comprising millions

of Chinese, Arab, Indian, and European ancestry. It is simply

ridiculous to suggest that the East Timorese are of different

ethnic origin than their kin in West Timor and the surrounding

islands of the Indonesian archipelago. It is true that there

are still remnants of the Fretilin wandering around in very

small groups in isolated places, robbing food from the

population, killing villagers and once in a while disrupting

village governments by surprise attacks to civil defence units

(HANSIP).

Within the frame-work of our national defence system,

Indonesia is stationing its defence forces all over the

archipelago for the maintenance of peace and security.

The stationing of around 7000 troops in East Timor,

except for the maintenance of law and order, is also meant to

build infra-structure in the island, like roads, bridges,

irrigation systems, clinics, housing in resettlement areas

etc. This development effort is an implementation of the dual

function of the Army, a doctrine practiced by the Army since

1945.

However, I do acknowledge that there is still a Fretilin

element in East Timor. It.is in the order of a few hundred

and they threaten villages at times. As a military movement,

Fretilin is spent.


In the field of economic development, the level of

expenditure per head of population in East Timor, which by

comparison is bigger than other provinces, reflects the aim of

the government to develop the capacity of East Timorese to

eventually contribute to, and share in, the prosperity of the

country as a whole. The provincial budget for 1983/1984 is

about 54 million US dollars. Although we still face a number

of obstacles in East Timor in the field of economic

development, unbiased observers would agree that the progress

and welfare of the East Timorese has been steadily enhanced.

Outside assistance has been provided, and is continuing

to be provided by such international bodies as the

International Committee of the Red Cross, the Catholic Relief

Services and UNICEF. Progress has been observed and commented

on by visiting groups and individuals, including your own

Australian Parliamentary Delegation in July and August last

year.

INTERNATIONAL AIR LAW - CLOSURE OF AIR CORRIDOR FOR THE AEGEAN, 8-11 NOVEMBER, 1984.STATPMIFJJT RV fWEETV*

Further comments on the closing of Greece air corridor "Green 18" j*


ATHENS, October 10, 1984

Foreign Undersecretary Mr Yannis Kapsis charged yesterday that a"quite hot and irregular" situation had been created in the EasternAegean following that he termed the "flagrant violation of inter*national rules and NATO regulations by Turkey".

At the same time, he disclosed that allied air force headquarters southeastern Europe at 0200a.m. yesterday "urgently signalled" its air force units taking part in the NATO exercise "Display determination 84" to limit their actions to within the air space controlled by the Turkish Flight Information Region (FIR). Mr Kapsis said the move justified Greece's action in closing the air corridor "Green 18" in the Eastern Aegean to civil aviation flights for two days after Turkish violations of Greece's FIR. Mr Kapsis told foreign newsmen that in view of the exercise "display determination" a meeting of the "Committee of European aeronautical coordination"(CEAC) took place on 3 July, outlining the limits of the allied exercise, and each country undertook to issue the "notice to all airmen" (NOTAM) concerning its own FIR.On 23 August he said, the Greek authorities issued their NOTAM and on 24 September Turkey asked for the NOTAM which exceeded the limits agreed by the CEAC and outlined by NATO. Greece, he said, responded I ‘ that it had issued its NOTAM in accordance with what had been outlined and agreed upon.But on 25 September Turkey issued a NOTAM which included a section under the Athens FIR jurisdiction, and which Greece rejected. At the same time, he added, the Greek authorities issued a warning that the Turkish NOTAM of 25 September was not valid. Greece also protested the Turkish action to the Commander of Allied Air Forces Southeastern Europe, who on 27 September confirmed the limits agreed upon on 3 July. Despite this, Mr Kapsis said, Turkey insisted on its own NOTAM asking for an extension of the limits.

* (Text of Press Releases made available by Athanase A. Camilos, Counsellor of the Greek Embassy, Canberra. It is anticipated that we shall shortly publish a statement by the Turkish authorities)

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 224___________________

I _ -

■ Up to this point, the undersecretary said, 'we had a wilxful or not misinterpretation of international regulations', but Turkey’s irrational interpretation was clear, 'because' Turkey could have asked for a NOTAM in the Ionian Sea for Italian.... or Japanese aircraft'.Mr Kapsis added that following Monday's statement by Turkish Foreign Minister Vahit Halefoglu, Greece asked for a further confirmation from allied headquarters southeastern Europe on what had been agreed upon The confirmation came at 2.00 a.m. yesterday, Mr Kapsis said, and the Greek side ascertained with surprise that Tuekey was 'once again violating all kinds of settlement and does not read correctly the international treaties or the charts'. He said yesterday's allied confirmation contained instructions to all aircraft taking part in the 'display determination' exercise to stay out of the Athens FIR and limit their action to within the Turkish FIR.

Mr Kapsis said that*the Eastern Regean air corridor which Greece closed Monday would repopen at sunset yesterday, and added that Greek air :force fighters intercepted Turkish aircraft, noting that Greece had 'the shortest intercetion time in NATO, which 'is only four minutes'. Greece, however, he said, was 'not worried about the situation in the jEastern Aegean because it is in a position to protect its interests'.

'Alternate Defence Minister Antonis Drossoyannis yesterday charged more violations of Greece's air space in the Aegean by Turkish and U.S aircraft during the 'display determination' exercise. He said the violations took place at the climax of the exercise's air defence phase, and added that until 1.000 p.m. local time yeterday the Greek air iforce carried out 96 sorties to intercept the aircraft which violated the Athens FIR.

;"At this moment while we are talking" Mr Drossoyannis told newsmen, 'aircraft taking part in the exercise are carrying out violation due to the narrow boundaries within which they are forced to mere'. In order to find out the exact number of violations, Mr Drossoyannis said, 'we have to make an analysis of the tracks recorded on our radar screens'. He said the first violations of Greek air space were made by two Turkish and four U.S. aircraft. US planes, mostly F-14's and A-7's, took off from the US aircraft carrier 'America' which entered the exercise area early yesterday morning. Turkish jets, mainly F-5's, F-104's and phantoms, entered the Aegean from bases in the Turkish mainland. He said among the US aircraft there was a 'Hawkeye' jfeypa flying radar. _________


INTERNATIONAL AIR LAW - CLOSURE OF AIR CORRIDOR FOR THE AEGEAN ___________ 8-11 NOVEMBER, 1984. STATEMENT BY GREECE*__________

REASONS FOR GREECE CLOSING THE AIR CORRIDOR "GREEN 18" IN THE AEGEAN

ATHENS October 9, 1984

Greece yesterday closed the air corridor "Green 18" in the Aegean for two days after violations of its air space by seven pairs of Turkish warplanes during the NATO exercise "Display Determination" Defence Ministry sources said last night.

The sources said that there had been a total of six infrigements and one violation and in all cases the Turkish aircraft had been intercepted by Greek air force planes from nearby bases.

The closed air corridor falls within Greece's operational control and covers the area which includes the islands of Chios, Aghios Efstrations, Limnos and Mytilene.

The violation, according to the same sources, occured at 13 03 local time by a pair of F-5 Turkish aircraft, which were immediately intercepted by Greek fighter planes. One of the two planes left the Greek air space while the second gained 'height and entered the civil aviation air corridor, ingnoring International Civil Aviations rule and the possibility of causing an air accident.

After the incident, the Greek government decided to close the air corridor from 2.00pm yesterday until midnight tonight for "safety reasons" for the duration of the phase of the allied exercise being carried out in the region, the Government Spokesman said earlier yesterday.

The Spokesman, Mr Dimitris Maroudas told the press that the government had made the move "because of its responsibility for the safety of civilian flights in the Athens Flight Information Region (FIR)

* (Text of Press Releases made available by Athanase A. Camilos, Counsellor of the Greek Embassy, Canberra. It is anticipated that we shall shortly publish a statement by the Turkish Authorities).


Mr Maroudas warned that the Greek air force would intercept any military aircraft, regardless of nationality, which violated Greece's air space.Greek Foreign Undersecretary Mr Yannis Kapsis last night accused Turkish Foreign Minister Mr Vahit Halefoglu of blatantly distortingreality and international regulations. He was replying to earlier

*

Halefoglu strtesmans that Greece, would bear full responsibility for any problem which arose during the allied "display determination" exercise currently taking place in the Aegean, and assertions that the Greek authorities had refused to publish the "notice to all airmen" (NOTAM) submitted to Greece by Turkey.

Mr Kapsis stressed that Greece, consistent with its obligations 1 within the Athens FIR, had distributed the required NOTAM for the region which, under Jntemrtional Civil Aviation Organisation (ICAO) procedures, NATO had requested for the 'display determination' exercise

!

He noted that the boudaries of this region had been agreed upon during a 3 July 1984 conference of the coordinating committee for European air space, with the participation of the Internationa Air Traffic |Association (IATA). He said each country had taken on the responsibility 1 of issuing a NOTAM for the region falling under its FIR. Despite this,■ Mr Kapsis added, the Turkish authorities had requested an expansion iof the said region in the Gulf of Saros and that this had been rejected |by the NATO Commander responsible for the exercise's air planing.SFollowing this, he added, the Greek authorities had not issued a supplementary NOTAM for the NATO manoeuvre. He said that Turkey had illegally issued a NOTAM which included the region that had been rejected, in violation of the Chicago Convention and its annexes.

Mr Kapsis said that the NOTAM which also violated Greek air space had been issued by Turkey arbitrarily and without any authotity, given that such authority belonged exclusively to the Greek authorities, who have the sole responsibility for the Athens FIR. Mr Kapsis said that Greece, determined to defend its rights but also to respect its obligations within the Athens FIR, had issued a notification to the effect that the Turkish NOTAM was not valid.

[L985] AUSTRALIAN INTERNATIONAL LAW NEWS 227

He said the only right which Turkey had was to request NOTAM for a national exercise and not a NATO manoeuvre, whose boudaries had been previously agreed upon and whose extension Was not Turkey's right.Mr Kapsis added Mr Halesfoglu's assertions over the reasons Greece did not participate in the allied exercise in the Aegean were so unfounded that they did not warrant a reply.

He noted that Greece has repeatedly stated it's refusal to participate in any exercise taking place contrary to NATO procedures and regulations in force, or which are carried out in a way which harm Greek national and sovereign interests.

«

Cl985] AUSTRALIAN INTERNATIONAL LAW NEWS 228

AEGEAN AIRSPACEQUESTIONS *Breadth of National Airspace

A ccording to international / \ law, the breadth of national

Lmjy airspace has to correspond to / \the breadth of territorial sea. This is clearly reflected in Articles 1 and 2 of the Chicago Convention of 1944 on Civil Aviation:

"Article 1 - Sovereignty""The contracting States

recognize that every State has complete and exclusive sovereignty over the airspace above its territory."

"Article 2 - Territory”"For the purpose of this

Convention, the territory of a State shall be deemed to be land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State." (emphasis added).

AIRSPACE AS DEFINED BY INTERNATIONAL LAW AND THE CHICAGO CONVENTION...

j which remain as international j airspace for Turkey and other | countries.

...AND THE ARBITRARY GREEK CLAIM TO A 10-MILE AIRSPACE

* (From text provided by the Embassy of Turkey, Canberra).

0.985] AUSTRALIAN INTERNATIONAL LAW NEWS 229

Qrnk positon: Greece claims that she has a national airspace of 10 miles regardless of her 6-mile territorial sea.

Turkish position: Turkey and other countries reject Greece’s claim of a 10-mile airspace and only recognize and respect a Greek airspace of 6 miles which corresponds to her 6 - mile territorial sea.

Greece exploits this unlawful claim to manufacture tension in the Aegean. Outside the 6 - mile limit, but within 10 miles, Greece alleges that Turkey violates Greek airspace.

F.I.R.Responsibilities"HP" he second aspect of the

I Aegean airspace question I is the deliberate I misinterpretation by Greece of

her F.I.R. (Flight Information Region) responsibilities. This is nothing more than a technical responsibility to provide air traffic services in the areas concerned. However, Greece claims that the non-submission of flight plans by Turkish military aircraft constitutes a “violation” of the Greek F.I.R. Of course, there is no such thing as the “violation of an F.I.R.” since F.I.R. responsibility does not imply recognition of sovereignty of the F.I.R. state over the airspace concerned.

Decision A23-II (Appendix N) taken during the 23rd session of the ICAO Assembly held in Montreal in 1980 reads as follows:

“...6- The approval by the Council of regional air navigation agreements relating to the provision by a State of air. traffic services within airspace over the high seas does not imply the recognition of sovereignty of that State over the airspace concerned.”

The Greek Government, however, does not seem to agree with the international community on this point. Here are some examples:

”... The Greek Government does not agree to the establishment of an allied command in Larissa unless it is absolutely clear that the limits of the operational control coincide with the Athens F.I.R. i.e. with the country’s frontiers.” (Statement by Prime Minister Papandreou, Athens, 23 November 1981)(emphasis added)

“Greek Ambassador to Ankara George Papoulias made a demarche to the Turkish Government today for violations of the Greek F.I.R. by Turkish aircraft, Government Spokesman Dimitris Maroudas said.” (Athens, 17 May 1983) (emphasis added)

It is quite clear that the main purpose of such statements is to give substance to the so-called "Turkish threat”. It is equally clear, however, that the method of formulating unlawful positions and then complaining of their violation can be tolerated neither by Turkey nor the international community. Turkey, as well as other countries, reject the concept of the so-called “F.I.R. violations”.

It would be useful to note that unjustified harassment over the Aegean international airspace of Turkish military aircraft by Greek military aircraft under various false pretexts jeopardizes the safety of flight and carries the risk of leading to undesirable incidents with grave consequences.

Question of Flight Plans

Greek Position: It is mandatory for military aircraft to submit flight plans when crossing into Athens F.I.R.

Turkish Position: Military aircraft flying in international airspace are under no obligation to submit flight plans since the Chicago Convention does not apply to military aircraft.

International law and the provisions of the Chicago Convention do not support the Greek view on this point.

Indeed Article 3 of the Chicago Convention reads as follows:

“(a) This Convention shall be applicable only to civil aircraft and shall not be applicable to State aircraft..

“(d) The contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil

In view of the foregoing, the responsibility of having due regard for the safety of civil aircraft flying over the international airspace of the Aegean rests with Turkey and other states whose military aircraft fly in these areas and not with Athens F.I.R. It should be added that Turkey is not the only country that Greece is accusing of not filing flight plans.

CL985] AUSTRALIAN INTERNATIONAL LAW NEWS 230

THEDEMILITARIZATION OF THE EASTERN AEGEAN ISLANDS *

emilitarization of certain areas to reconcile opposing interests to establish peace and stability is a widespread

practice in international relations. Violations of the demilitarized status of the areas determined by international treaties have always led to instability and tension. Such arrangements are * designed to strike a balance between opposing interests and unilateral and arbitrary attempts to alter such arrangements undermine this balance.

The demilitarized status of the Eastern Aegean islands has been a fundamental element of the Aegean status quo ever since the termination of Turkish sovereignty over them. The

. permanence of the geographical features of the Aegean necessitates the permanence of the qualified sovereignty arrangements over these islands.

Greek Position: As early as 1964 Greece began to militarize these islands by deploying combat troops and establishing permanent military installations. The pretext for this militarization has been the so-called “Turkish threat”.

Turkish Position: Both the history of the pertinent international treaties and their provisions regarding the islands in the Eastern Aegean Sea are unambiguous. Proximity to the Turkish coast and the security imperatives of the Anatolian peninsula have always been factors in the determination of the status of the islands. That is whv the authors of all the related international instruments have paid particular attention to reconciling Greek sovereignty over these islands with the security concerns of Turkey.

The past has confirmed the validity of these security concerns: the use of the island of Lemnos as a base for the attack on the Qanakkale Straits (Dardanelles) during World War I and the present aggressive policies of the Greek Government in militarizing the islands today.

All the treaties governing the status of the Eastern Aegean islands attach, as a permanent condition to Greek sovereignty, DEMILITARIZATION.,

- The Decision of 1914 by the Six Powers stipulated a demilitarized status for the islands then being turned over to Greece.

- Articles 12 and 13 of the 1923 Lausanne Peace Treaty and Article 4 of its annexed Convention confirmed this status. The Convention specifically provided that the islands of Lemnos and Samothrace, situated at the entry of the Qanakkale Straits (Dardanelles), be demilitarized on an even stricter basis, thus emphasizing their vital importance for the security of the Straits.

- The 1936 Montreux Convention, which established the regime of' the Turkish Straits, did not bring any change to the status of the islands.

- The 1947 Treaty of Paris turned over the islands, commonly referred to as the "Dodecanese", to Greece. This Treaty also sought to reconcile Greek sovereignty over these islands with the security of Turkey by stipulating in Article 14 that “these islands shall be and shall remain demilitarized”.

Greek allegations that the islands have been militarized as a defensive measure against a "Turkish threat” constitute a gross distortion of the sequence of the developments. Indeed it is Turkey that has felt the need to take certain defensive measures in the face of the blatant violations by Greece of her obligation to keep the islands demilitarized.

It should be added that, contrary to the Greek obligaton to demilitarize the Eastern Aegean islands, Turkey is under no commitment which restricts the size and the areas of deployment of its forces on the Turkish mainland.

(?rom text supplied by the Embassy of Turkey, Canberra).

SPAIN - uk : GIBRALTAR

FULL TEXT OF THE GIBRALTAR JOINT COMMUNIQUE


The following is the text of the joint communique issued in Brussels yesterday by the Foreign Secretary, Sir Geoffrey Howe, and the Spanish Foreign Minister, Mr Fernando Moran:

1. The Foreign and Commonwealth Secretary, the Righ Hon. Sir Geoffrey Howe, and the Spanish Foreign Minister, His Excellency Sr Don Fernando Moran Lopez, held a meeting in Brussels on 27 November during which they agreed on the way in which the Spanish and British governments will apply by not later than 15 February, 1985, the Lisbon Declaration of 10 April, 1980, in all its parts. This will involve simultaneously:

(a) The provision of equality and reciprocity of rights for Spaniards in Gibraltar and Gibraltarians in Spain. This will be implemented through the mutual concession of the rights which citizens of EC (European Community) countries enjoy, taking into account the transitional periods and derogations agreed between Spain and the EC. The necessary legislative proposals to achieve this will be introduced in Spain and Gibraltar. As concerns paid employment, and recalling the general principle of Community preference, this carries the implication that during the transitional period each side will be favourably disposed to each other's citizens when granting work permits.

(b) The establishment of the free movement of persons, vehicles and goods between Gibraltar and the neighbouring territory.

(c) The establishment of a negotiating process aimed at overcoming all the differences between them over Gibraltar and at promoting cooperation on a mutually beneficial basi on economic, cultural, touristic, aviation, military and environmental matters. Both sides accept that the issues of sovereignty will te discussed in that process. The British Government will fully maintain its commitment to honour the wishesof the people of Gibraltar as set out in the preamble of the 1969 Constitution.

2. Insofar as the airspace in the region of Gibraltar is concerned, the Spanish Government undertakes to take the early actions necessary to allow safe and effective air communications.

3. There will be meetings of working groups, which will be reviewed periodically in meetings for this purpose between the Spanish and British foreign ministers.


GIBRALTAR

27 November 1984 STATEMENT BY THE CHIEF MINISTER*

The communique issued today is the result of many months of discussions between the Secretary of State and the Spanish Foreign Minister and of talks at official and technical level.I have been consulted closely throughout this process. I welcome the outcome as I believe that it will be beneficial oto the people of Gibraltar. ,

2. The main effects of the agreement which has been reached 1 are that all restrictions will be removed by 15 February 1985and that this will be done in the context of an advance ;mutual concession, as between Spain and Gibraltar, of the EC rrights which, taking into account the transitional periods and derogations agreed between Spain and the EC, would in any event become applicable on Spanish accession to the Community. \

ii

3. I am particularly glad to note that the concept of •mutual benefit in the process of promoting cooperation has (been specifically mentioned. : '

4. I naturally enter a reservation in regard to the question i

of sovereignty. When the Lisbon Agreement was announced I »said, in a joint communique with the then Leader of the Opposition on 12 April 1980, that we reiterated "the well-known position of the people of Gibraltar that, for their part, they were opposed to any negotiation of sovereignty over Gibraltar, a view expressed in a unanimous resolution of the House of Assembly in November 1977".

5. At the same time, I wish to draw particular attention to the categorical statement in today^s communique that:

* (Statement provided by the office of the Chief Minister, Gibraltar).


"The British Government will fully maintain its commitment to honour the wishes of the people of •Gibraltar as set out in the Preamble to the 1969 Constitution". .

6. I also wish to recall the following statement in the joint communique of April 1980:

"We have always placed our faith in Britain - the British Government, the British Press and the British people - and will continue to do so. Britain has never failed us in 17 very difficult years".

7. Today I reiterate that faith and that statement.

8. My colleagues and I commend today's agreement, subjectto the reservation I have mentioned, to the people of Gibraltar. We have stood firm together for many years and we in the, Government regard the agreement as an honourable outcome. We trust and believe that it will be the first step in a process of normalisation and fruitful cooperation between• Gibraltar and the immediate vicinity for the benefit of all.

MEETING OF THE NORDIC FOREIGN MINISTERS

THE FOLLOWING IS THE COMMUNIQUE RELEASED FOLLOWING THE MEETING OF THE NORDIC FOREIGN MINISTERS IN REYKJAVIK, SEPTEMBER 4 TO 5, 1984:

THE NORDIC FOREIGN MINISTERS MEETING IN THEIR REGULAR AUTUMN SESSION IN REYKJAVIK SEPTEMBER 4-5, 1984, CONFIRMED THE NORDIC COUNTRIES’ WILLINGNESS TO CONTRIBUTE TO ALL CONSTRUCTIVE EFFORTS TO REDUCE THE TENSIONS AND INSECURITY WHICH CHARACTERIZE THE INTERNATIONAL SITUATION.

THE MINISTERS EXPRESSED THEIR SUPPORT FOR THE EFFORTS TO REACH 1PEACEFUL SOLUTIONS TO THE NUMEROUS REGIONAL CONFLICTS IN THE WORLD WHICH REMAIN UNRESOLVED, SUCH AS AFGHANISTAN, SOUTH EAST ASIA AND CENTRAL AMERICA. ,

THE MINISTERS REAFFIRMED THE NORDIC COUNTRIES’ STRONG SUPPORT ;FOR THE UNITED NATIONS. THEY UNDERLINED THE UNITED NATIONS’ :ESSENTIAL ROLE IN THE MAINTENANCE OF PEACE AND THE NEED TO STRENG- :THEN THE ORGANIZATION’S EFFECTIVENESS IN CONFLICTS AND CRISIS :SITUATIONS. RESPECT FOR THE FUNDAMENTAL PRINCIPLES OF INTERNATIONAL *LAW, AS LAID DOWN IN THE UN CHARTER, MUST BE THE GUIDELINE FOR THE !CONDUCT OF ALL STATES. THEY ALSO STRESSED THE IMPORTANCE OF PRESERV- JING THE UNIVERSAL CHARACTER OF THE UNITED NATIONS.

i

THE MINISTERS RECALLED THE REPORT ON THE STRENGTHENING OF THE {UNITED NATIONS WHICH THE NORDIC COUNTRIES TRANSMITTED TO THE ,SECRETARY-GENERAL OF THE UN ON JUNE 10, 1983 AND STRESSED THE iDESIRABILITY OF WORKING ACTIVELY FOR THE IMPLEMENTATION OF THE ■MEASURES PROPOSED IN THE REPORT.

THE MINISTERS REAFFIRMED THEIR GOVERNMENTS’ COMMITMENT TO THE <PROCESS WHICH STARTED WITH THE CONFERENCE ON SECURITY AND COOPERATION ,IN EUROPE (CSCE). THIS PROCESS PROVIDES AN IMPORTANT OPPORTUNITY FOR 'THE PARTICIPATING STATES TO CONTRIBUTE TO STRENGTHENING SECURITY AND PROMOTING COOPERATION IN EUROPE. IT IS ESSENTIAL THAT ALL PARTICI- :RATING STATES ABIDE SCRUPULOUSLY BY THEIR COMMITMENTS UNDER THE HELSINKI FINAL ACT. PROGRESS IN ALL FIELDS COVERED BY THE FINAL ACT ‘IS ESSENTIAL FOR IMPROVED SECURITY AND COOPERATION IN EUROPE.THE SERIES OF EXPERT MEETINGS IN PURSUANCE OF THE DECISIONS OF THE FOLLOW-UP MEETING IN MADRID DEMONSTRATES THE CONTINUITY AND VITALITY OF THE CSCE PROCESS.

THE MINISTERS UNDERLINED THE IMPORTANCE OF THE CONFERENCE ON CONFIDENCE AND SECURITY-BUILDING MEASURES AND DISARMAMENT IN EUROPE CURRENTLY BEING HELD IN STOCKHOLM. THE CONFERENCE HAS GIVEN THE CSCE PROCESS AN IMPORTANT NEW DIMENSION. THEY EXPRESSED THE HOPE THAT THE CONFERENCE WILL WITHOUT DELAY INITIATE SUBSTATIVE NEGOTIATIONS WITH A VIEW TO ACHIEVING CONCRETE RESULTS AS SOON AS POSSIBLE. THE MINISTERS WILL ACTIVELY SUPPORT EFFORTS TO THIS END.


THE MINISTERS STRESSED THE IMPORTANCE OF DIALOGUE BETWEEN THE MAJOR POWERS IN ORDER TO PROMOTE DETENTE AND DISARMAMENT AND .AVERT THE DANGER OF WAR, IN PARTICULAR NUCLEAR WAR.

THE MINISTERS CONSIDERED IT TO BE OF OVERRIDING IMPORTANCE THAT THE BILATERAL NEGOTIATIONS ON NUCLEAR ARMS REDUCTIONS BETWEEN THE UNITED STATES AND THE SOVIET UNION BE RESUMED, AND THEY DISCUSSED THE POSSIBILITIES THEREOF. THEY CONSIDERED IT ESSENTIAL THAT THE NEGOTIATIONS RESULT IN A HALT TO THE BUILDUP OF ARMAMENTS AND IN SIZEABLE REDUCTIONS IN THE NUCLEAR ARMAMANTS OF THOSE COUNTRIES.

THE MINISTERS CALLED FOR INTENSIFIED EFFORTS AT THE CONFERENCE ON DISARMAMENT IN GENEVA TO REACH AGREEMENT ON A COMPREHENSIVE TEST BAN TREATY AND THE PROHIBITION AND DESTRUCTION OF CHEMICAL WEAPONS.

THE MINISTERS RECALLED THE RISKS ASSOCIATED WITH AN ARMS RACE IN OUTER SPACE AND FOUND IT ESSENTIAL THAT MEASURES BE ADOPTED WITHOUT DELAY TO PREVENT SUCH A DEVELOPMENT.

THE MINISTERS CONTINUED THEIR EXCHANGE OF VIEW ON A NUCLEAR WEAPON-FREE ZONE IN THE NORDIC AREA AND AGREED TO REMAIN IN CONTACT ON THIS QUESTION. THE MINISTERS ALSO EXCHANGED VIEWS ON THE QUESTION OF A CORRIDOR FREE OF BATTLEFIELD NUCLEAR WEAPONS IN EUROPE.

THE MINISTERS EXPRESSED THEIR STRONG SUPPORT FOR THE EFFORTS TO PREVENT PROLIFERATION OF NUCLEAR WEAPONS TO MORE COUNTRIES AND EMPHASISED THE IMPORTANCE OF THE SCRUPULOUS OBSERVANCE OF THE NON-PROLIFERATION TREATY. THEY FOUND IT PARTICULARLY IMPORTANT PRIOR TO THE THIRD REVIEW CONFERENCE IN 1985 THAT ALL PARTIES TO THE TREATY FULFIL THEIR COMMITMENTS UNDER THE TREATY.

THE MINISTERS REITERATED THEIR COUNTRIES* FULL SUPPORT FOR THE EFFORTS TO BRING ABOUT A COMPREHENSIVE, JUST AND LASTING PEACE IN THE MIDDLE EAST. THEY REAFFIRMED THAT NEGOTIATIONS ON SUCH A PEACE SETTLEMENT SHOULD BE BASED ON THE PRINCIPLES LAID DOWN IN SECURITY COUNCIL RESOLUTIONS 242 (1967) AND 338 (1973). IN THIS CONTEXT THE MINISTERS UNDERLINED THE PRINCIPLES OF SECURITY FOR ALL STATES IN THE AREA, INCLUDING ISRAEL, AND JUSTICE FOR ALL PEOPLES,INCLUDING THE PALESTINIAN PEOPLE. THEY REEMPHASIZED THE NEED TOREALISE THE PALESTINIANS* LEGITIMATE NATIONAL RIGHTS THROUGH THEEXERCISE OF THEIR RIGHT TO SELF-DETERMINATION, INCLUDING THEIR RIGHT TO PARTICIPATE IN NEGOTIATIONS ON THEIR OWN FUTURE.

THE MINISTERS EXPRESSED THE HOPE THAT THE LONG STALE-MATE IN THE ARAB-ISRAELI PEACE PROCESS WOULD NOW BE REPLACED BY SERIOUS EFFORTS AT NEGOTIATIONS. THEY DENOUNCED ANY ACTIONS WHICH COULD IMPEDE DEVELOPMENT OF THE NECESSARY CONFIDENCE BETWEEN THE PARTIES, INCLUDING THE USE OF FORCE AND ANY OTHER ACTIONS CONTRARY TO THE PRINCIPLES OF INTERNATIONAL LAW SUCH AS ISRAEL’S SETTLEMENTS'POLICY.

THE MINISTERS WELCOMED THE SECURITY PLAN ADOPTED BY THE LEBANESE GOVERNMENT OF NATIONAL UNITY. THEY EXPRESSED THE HOPE THAT IT MIGHT SOON BE EXTENDED TO THE WHOLE OF LEBANON. IN THIS CONTEXT THEY REITERATED THE IMPORTANCE OF A SPEEDY RESTORATION OF RESPECT FOR LEBANON’S INDEPENDENCE, SOVEREIGNTY AND TERRITORIAL INTEGRITY WHICH REQUIRES THE WITHDRAWAL OF ALL FOREIGN FORCES. THE MINISTERS REITERATED THEIR APPEAL TO ALL LEBANESE, IRRESPECTIVE OF RELIGIOUS OR POLITICAL AFFILIATION, TO CONTRIBUTE TO THE ESTABLISHMENT OF A DURABLE POLITICAL SYSTEM IN LEBANON.

A.3

THE MINISTERS UNDERLINED THE IMPORTANCE OF UNITED NATIONS PEACEKEEPING OPERATIONS AND IN THIS RESPECT STRESSED THE COLLECTIVE RESPONSIBILITY OF MEMBER STATES WITH REGARD TO THE FINANCING OF THESE OPERATIONS. THE MINISTERS WERE IN AGREEMENT THAT UNIFIL WAS AN IMPORTANT STABILIZING AND MODERATING ELEMENT IN THE ONGOING POLITICAL PROCESS IN LEBANON. THEY POINTED TO THE NEED TO BRING ABOUT CONDITIONS FOR A MORE EFFECTIVE EXERCISE OF UNIFIL'S PEACEKEEPING ACTIVITIES.

.HE MINISTERS EXPRESSED THEIR DEEP CONCERN AT THE CONTINUING WAR BETWEEN IRAN AND IRAQ WHICH HAS CAUSED ENORMOUS HUMAN SUFFERING AND INCREASED TENSIONS IN THE AREA. IN THIS CONNECTION THEY EXPRESSED THE HOPE THAT THE CONFLICT COULD BE BROUGHT TO AN EARLY AND PEACEFUL END. THE MINISTERS EXPRESSED THEIR APPRECIATION OF THE INITIATIVE TAKEN BY THE SECRETARY-GENERAL OF THE UNITED NATIONS WITH A VIEW TO BRINGING THE BOMBING OF CIVILIAN TARGETS AND THE USE OF CHEMICAL WEAPONS TO AN END. AT THE SAME TIME THEY EXPRESSED THEIR CONCERN AT THE REPERCUSSIONS OF THE WAR ON WHIPPING IN THE GULF REGION.

THE MINISTERS ONCE AGAIN CONDEMNED THE POLICY OF APARTHEID OF THE GOVERNMENT OF SOUTH AFRICA. THIS POLICY DEPRIVES THE MAJORITY OF THE POPULATION OF THEIR FUNDAMENTAL HUMAN RIGHTS. IN THE OPINION OF THE MINISTERS IT WILL NOT BE POSSIBLE TO ACHIEVE PEACE AND STABILITY IN SOUTHERN AFRICA AS LONG AS THE POLICY OF APARTHEID IS MAINTAINED. THEY FOUND THAT THIS POLICY HAD NOT UNDERGONE ANY SUBSTANTIAL CHANGES. AS DETERMINED BY SECURITY COUNCIL RESOLUTION 554 <1984), THE RECENT CONSTITUTIONAL REFORMS MUST RATHER BE SEEN AS AN ATTEMPT TO CONSOLIDATE THE BASIC FEATURES OF THE POLICY OF APARTHEID. THIS IS CLEARLY CONFIRMED BY THE DETENTION OF MEMBERS OF THE UNITED DEMOCRATIC FRONT.

THE MINISTERS FOUND THAT CONTACTS BETWEEN SOUTH AFRICA AND ITS NEIGHBOURING STATES ARE INEVITABLE FOR GEOGRAPHIC REASONS AND BECAUSE OF THE LATTER'S ECONOMIC DEPENDENCE ON SOUTH AFRICA. SUCH CONTACTS SHOULD HOWEVER NOT BE USED AS A PRETEXT FOR LEGITIMIZING THE APARTHEID SYSTEM.

THE MINISTERS EXPRESSED THEIR SATISFACTION WITH THE MEETING IN STOCKHOLM ON JUNE 20-21, 1984, BETWEEN THE FOREIGN MINISTERS OF THE FRONT-LINE STATES AND THE NORDIC FOREIGN MINISTERS AND EXPRESSEDTHEIR WILLINGNESS TO CONTINUE TO SUPPORT THE FRONT-LINE STATES IN THEIR STRUGGLE AGAINST APARTHEID AND THEIR EFFORTS TO REDUCE THEIR DEPENDENCE ON SOUTH AFRICA.

THE MINISTERS REITERATED THEIR CONVICTION THAT THE UNITED NATIONS MUST INCREASE ITS PRESSURE TO BRING THE POLICY OF APARTHEID TO A PEACEFUL END. IN THIS CONTEXT THE SECURITY COUNCIL SHOULD ADOPT BINDING ECONOMIC SANCTIONS AGAINST SOUTH AFRICA. THE UNITED NATIONS’ ARMS EMBARGO SHOULD BE SCRUPULOUSLY OBSERVED. THE NORDIC COUNTRIES ARE EXAMINING WAYS AND MEANS TO MAKE THE EMBARGO MORE EFFECTIVE.

THE MINISTERS CONDEMNED SOUTH AFRICA'S CONTINUED ILLEGAL OCCUPATION OF NAMIBIA AND STRESSED THAT THE PEOPLE OF NAMIBIA MUST WITHOUT DELAY BE GIVEN THE OPPORTUNITY TO DETERMINE THEIR OWN FUTURE THROUGH FREE AND FAIR ELECTIONS UNDER THE SUPERVISION AND CONTROL OF THE UNITED NATIONS IN ACCORDANCE WITH SECURITY COUNCIL RESOLUTION 435 (1978). THE MINISTERS REAFFIRMED THE WILLINGNESS OF THE NORDIC COUNTRIES TO CONTRIBUTE TO THE ECONOMIC AND SOCIAL DEVELOPMENT OF A FUTURE FREE NAMIBIA.


A.4

THE MINISTERS EXPRESSED THEIR DEEP CONCERN THAT GRAVE VIOLATIONS OF HUMAN RIGHTS CONTINUE TO TAKE PLACE IN MANY PARTS OF THE WORLD. THEY AGREED THAT THE UNITED NATIONS HAS A SIGNIFICANT ROLE TO PLAY IN PROMOTING RESPECT FOR HUMAN RIGHTS AND THEY UNDERSCORED THE IMPORTANCE OF PROMOTING COOPERATION BETWEEN GOVERNMENTS AND THE UNITED NATIONS IN EFFORT TO ATTAIN SUBSTANTIAL IMPROVEMENTS IN THE APPLICATION OF UNIVERSALLY AGREED STANDARDS IN THIS FIELD.

THE MINISTERS ALSO UNDERLINED THE SIGNIFICANT WORK OF INDIVIDUALS AND NON-GOVERNMENTAL ORGANISATIONS IN SECURING RESPECT FOR HUMAN RIGHTS. THEY DENOUNCED THE OPPRESSION IN SEVERAL COUNTRIES OF PERSONS WHO ACTIVELY SEEK TO EXPOSE VIOLATIONS OF HUMAN RIGHTS AND TO REDRESS INJUCTICE. THE MINISTERS RECALLED THE IMPORTANCE FOR INTERNATIONAL RELATIONS OF OBSERVANCE AND PROMOTION OF HUMAN RIGHTS.

THE MINISTERS NOTED THAT SOME PROGRESS HAS BEEN MADE IN DEVELOPING INTERNATIONAL STANDARDS IN THE FILED OF HUMAN RIGHTS AND NOTED WITH SATISFACTION THAT THE DRAFT CONVENTION ON TORTURE HAD BEEN SUBMITTED TO THE GENERAL ASSEMBLY. THE MINISTERS UNDERLINED THE IMPORTANCE OF HAVING AN EFFECTIVE IMPLEMENTATION MACHINERY OF THE CONVENTION AND CALLED FOR ITS EARLY ADOPTION.

THE MINISTERS FURTHER EXPRESSED THEIR SUPPORT FOR THE IMPORTANT WORK DONE BY THE UNITED NATIONS TO PREVENT SUMMARY OR ARBITRARY EXECUTIONS AND TO LIMIT AND ULTIMATELY ABOLISH THE DEATH PENALTY.THEY ALSO STRESSED THE SIGNIFICANCE OF THE CURRENT EFFORTS TO PROTECT THE RIGHTS OF INDIGENOUS PEOPLES.

THE MINISTERS NOTED THAT THERE HAD BEEN SOME RECOVERY IN THE INTERNATIONAL ECONOMY DURING THE YEAR, BUT AT THE SAME TIME THEY EMPHASISED THE NEED FOR BETTER COORDINATION OF THE ECONOMIC POLICIES OF THE INDUSTRIAL COUNTRIES IN ORDER TO ENSURE SUSTAINED GROWTH AND TO REDUCE THE VERY HIGH RATES OF UNEMPLOYMENT.

THE MINISTERS ALSO NOTED THAT THE RECOVERY WOULD NOT AUTOMATICALLY SPREAD TO ALL DEVELOPING COUNTRIES, MANY OF WHICH ARE FACED WITH GREAT DIFFICULTIES. THE MINISTERS POINTED IN PARTICULAR TO THE CRITICAL ECONOMIC AND SOCIAL SITUATION IN AFRICA. IT IS THEREFORE NECESSARY TO ADOPT CONCRETE MEASURES TO STRENGTHEN THE DEVELOPMENT OF THE DEVELOPING COUNTRIES. IN THIS CONNECTION THE MINISTERS STRESSED THE ONGOING REVIEW OF THE UNITED NATIONS STRATEGY FOR THE THIRD DEVELOPMENT DECADE. ,

THE EFFORTS OF DEVELOPING COUNTRIES THEMSELVES TO SOLVE THEIR DEVELOPMENT PROBLEMS MUST BE STRONGLY SUPPORTED THROUGH BILATERAL AND MULTILATERAL AID AS WELL AS THROUGH INCREASED COORDINATION OF THE ACTIVITIES WITHIN THE UNITED NATIONS SYSTEM IN THE FIELD OF ECONOMIC DEVELOPMENT. EVERY EFFORT SHOULD BE MADE TO REACH THE UNITED NATIONS’ GOALS FOR DEVELOPMENT ASSISTANCE, IN GENERAL AS WELL AS FOR THE LEAST-DEVELOPED COUNTRIES.

THE MINISTERS EMPHASIZED THE IMPORTANT ROLE OF THE UNITED NATIONS IN THE ECONOMIC FIELD AND EXPRESSED THE HOPE THAT THE MEMBER STATES WOULD SHOW GREATER WILLINGNESS TO USE THE ORGANIZATION AS A FORUM FOR CONSIDERATION OF IMPORTANT ECONOMIC AND SOCIAL PROBLEMS.


A.5

THE MINISTERS CONFIRMED THEIR SUPPORT FOR DENMARK'S CANDIDATURE FOR MEMBERSHIP OF THE UNITED NATIONS SECURITY COUNCIL FOR THE PERIOD 1985-86. THEY FURTHER REITERATED THEIR SUPPORT FOR THE CANDIDATURE OF AMBASSADOR JENS EVENSEN TO THE INTERNATIONAL COURT OF JUSTICE.

THE MEETING WAS ATTENDED BY DENMARK'S FOREIGN MINISTER, MR UFFE ELLEMANN-JENSEN, FINLAND'S FOREIGN MINISTER, MR PAAVO VAVRYNEN, ICELAND’S FOREIGN MINISTER, MR CEIR HALLGRIMSSON, NORWAY’S FOREIGN MINISTER, MR SVENN STRAY, AND SWEDEN'S FOREIGN MINISTER,MR LENNART BODSTROM.

AT THE INVITATION OF THE FINNISH GOVERNMENT, THE NEXT MEETING OF THE NORDIC FOREIGN MINISTERS WILL TAKE PLACE IN HELSINDI ON MARCH 28-29, 1985.


REPORT OF THE NEW IRELAND FORUM * RELEASED IN DUBLIN ON 2 MAY 1984

INFORMAL SUMMARY NOTE

THE REpORT IS THE PRODUCT OF DELIBERATION OVER A PERIOD OF 11 MONTHS BY THE FOUR PRINCIPAL NATIONALIST PARTIES IN IRELAND WHICH REPRESENT BETWEEN THEM MORE THAN 70 PERCENT OF ALL THE PEOPLE OF IRELAND AND 90 PERCENT OF THE NATIONALISTS OF THE ISLAND OF IRELAND.THESE PARTIES ARE:

FINE GAEL FI ANNA FAILTHE LABOUR PARTY THE SOCIAL DEMOCRATIC AND LABOUR PARTY

THE OBJECTIVE OF THE FORUM WAS TO DEVISE IDEAS THROUGH WHICH LASTING PEACE AND STABILITY COULD BE ACHIEVED IN IRELAND THROUGH THE DEMOCRATIC PROCESS.

THE FORUM MET ALTOGETHER 97 TIMES AND RECEIVED 317 SUBMISSIONS

ANALYSIS OF THE PROBLEM

THE FORUM REPORT ANALYSES THE BACKGROUND TO THE NORTHERN IRELAND PROBLEM WHICH IS MARKED BY DIVISION AND CONTINUING VIOLENCE. THE DIVISION OF IRELAND UNDER THE GOVERNMENT OF IRELAND ACT 1929 IS SEEN AS THE ROOT CAUSE OF THE FAILURE OF NATIONALISTS AND UNIONISTS TO REACH A MUTUAL ACCOMMODATION.(CHAPTER 3). _

THE FORUM CONSIDERS THAT THE IMMEDIATE OUTLOOK J^OR THE NORTH IS EXTREMELY DANGEROUS UNLESS AN ACCEPTABLE POL ITlCAL. SOLUTION IS ACHIEVED. THE LONG-TERM DAMAGE TO SOCIETY WORSENS EACH DAY THAT PASSES WITHOUT POLITICAL PROGRESS. IN POLITICAL, MORAL AND HUMAN TERMS THERE IS NO ACCEPTABLE LEVEL OF VIOLENCE. THERE ARE AT PRESENT NO POLITICAL INSTITUTIONS TO WHICH A MAJORITY OF PEOPLE OF THE NATIONALIST AND UNIONIST TRADITIONS CAN GIVE THEIR COMMON ALLEGIANCE OR EVEN THEIR ACQUIESCENCE.(2 4). ‘

THE FORUM REPORT CONTENDS THAT 'THE GREATEST THREAT TO THE PARAMILITARY ORGANISATIONS WOULD BE DETERMINED, CONSTITUTIONAL ACTION TO REACH AND SUSTAIN A JUST AND EQUITABLE SOLUTION AND THUS TO BREAK THE VICIOUS CYCLE OF VIOLENCE AMD REPRESSION'(3.20).

DETAILED ASPECTS OF THE PROBLEM ARE ANALYSED IN SEVERAL REPORTS PUBLISHED SEPARATELY BY THE FORUM: •

THE COST OF VIOLENCE ARISING FROM THE NORTHERN IRELAND SITUATION SINCE 1969:

THE ECONOMIC CONSEQUENCES OF THE DIVISION OF IRELAND SINCE 1929.

A COMPARATIVE DESCRIPTION OF THE ECONOMIC STRUCTURE AND SITUATION, NORTH AND SOUTH:

THE MACROECONOMIC CONSEQUENCES OF INTEGRATED ECONOMIC POLICY, PLANNING AND CO-ORDINATION IN IRELAND:

THE LEGAL SYSTEM CF THE REPUBLIC OF IRELAND AND OF NORTHERN IRELAND.


PRESENT REALITIES AND FUTURE REQUIREMENTS

FOLLOWING THE ANALYSIS IN THE EARLIER CHAPTERS OF THE REPORT CF THE HISTORICAL BACKGROUND TO THE PRESENT SITUATION IN NORTHERN IRELAND, THE FORUM ALSO SETS OUT ITS VIEW OF THE RIGHTS AND INTERESTS OF EACH OF THE MAJOR PROTAGONISTS TO THE PRESENT CRISIS IN THE VIEW OF THE IRISH GOVERNMENT THE "OPERATIONAL” PART OF THE REPORT IS SET OUT IN THE FIRST TWO SECTIONS OF CHAPTER 5 WHICH DESCRIBE THE "PRESENT REALITIES AND FUTURE REQUIREMENTS'.'. IN EFFECT, THESE TWO SECTIONS SET OUT, IN THE WORDS OF THE REPORT,A "FRAMEWORK FOR A NEW IRELAND". THE FORUM CALLS ON THE BRITISH GOVERNMENT TO "RECOGNISE THESE REALITIES AND GIVE EFFECT TO THESE REQUIREMENTS".THE "REALITIES" COMPRISE ELEVEN DESCRIPTIVE "ELEMENTS",WHICH SUMMARISE THE FORUM'S ANALYSIS OF THE PROBLEM OF NORTHERN IRELAND:

CHAPTER 5.1 (1) TO 5.1 (ll)

(1) EXISTING STRUCTURES AND PRACTICES IN NORTHERN IRELAND HAVE FAILED TO PROVIDE EITHER PEACE, STA3ILITY OR RECONCILIATION.THE FAILURE TO RECOGNISE AND ACCOMMODATE THE IDENTITY OF NORTHERN NATIONALISTS HAS RESULTED IN DEEP AND GROWING ALIENATION ON THEIR PART FROM THE SYSTEM OF POLITICAL AUTHORITY.

(2) THE CONFLICT OF NATIONALIST AMD UNIONIST IDENTITIES HAS BEEN CONCENTRATED WITHIN THE NARROW GROUND OF NORTHERN IRELAND.THIS HAS PREVENTED CONSTRUCTIVE INTERACTION BETWEEN THE TWO TRADITIONS AND FOSTERED FEARS, SUSPICIONS AMD MISUNDERSTANDINGS

(3) ONE EFFECT OF THE DIVISION OF IRELAND IS THAT CIVIL LAW AND ADM IN11 STRATI ON OF THE SOUTH ARE SEEN PARTICULARLY BY UNIONISTS,AS BEING UNDULY INFLUENCED BY THE MAJORITY ETHOS ON ISSUES WHICH PROTESTANTS CONSIDER TO BE A MATTER FOR PRIVATE CONSCIENCE AND THERE IS A WIDESPREAD PERCEPTION THAT THE SOUTH IN ITS LAWS, ATTITUDES AND VALUES DOES NOT REFLECT A REGARD FOR THE ETHOS TF PROTESTANTS. ON THE OTHER HAND, PROTESTANT VALUES ARE SEEN TO BE REFLECTED IN THE LAWS AND PRACTICES IN THE NORTH.

(4) THE PRESENT FORMAL POSITION OF THE BRITISH GOVERNMENT, NAMELY THE GUARANTEE, CONTAINED IN SECTION 1 OF THE NORTHERN IRELAND CONSTITUTION ACT, 1973 HAS IN ITS PRACTICAL APPLICATION HAD THE EFFECT OF INHIBITING THE DIALOGUE NECESSARY FOR POLITICAL PROGRESS. IT HAS HAD THE ADDITIONAL EFFECT OF REMOVING THE INCENTIVE WHICH WOULD OTHERWISE EXIST ON ALL SIDES TO SEEK A POLITICAL SOLUTION.

(5) THE ABOVE FACTORS HAVE CONTRIBUTED TO CONFLICT AND INSTABILITY WITH DISASTROUS CONSEQUENCES INVOLVING VIOLENCE AND LOSS OF LIFE ON A LARGE SCALE IN NORTHERN IRELAND.

(6) THE ABSENCE OF POLITICAL CONSENSUS, TOGETHER WITH TriE EROSION OF THE NORTH'S ECONOMY AND SOCIAL FABRIC THREATENS TO MAKE IRREVERSIBLE THE DRIFT INTO MORE WIDESPREAD CIVIL CONFLICT WITH CATASTROPHIC CONSEQUENCES.

(7) THE RESULTING SITUATION HAS INHIBITED AND PLACED UNDER STRAIN THE DEVELOPMENT OF NORMAL RELATIONS BETWEEN BRITAIN AND IRELAND.


(8) THE NATIONALIST IDENTITY AND ETHOS COMPRISE A SENSE OF NATIONAL IRISH IDENTITY AND A DEMOCRATICALLY FOUNDED WISH TO HAVE THAT IDENTITY INSTITUTIONALISED IN A SOVEREIGN IRELAND UNITED BY CONSENT.

(9) THE UNIONIST IDENTITY AND ETHOS COMPRISE A SENSE OF BRITISHNESS, ALLIED TO THEIR PARTICULAR SENSE OF IRISHNESS AND A SET OF VALUES COMPRISING A PROTESTANT ETHOS WHICH THEY BELIEVE TOBE UNDER THREAT FROM A CATHOLIC ETHOS, PERCEIVED AS REFLECTING DIFFERENT AND OFTEN OPPOSING VALUES.

(10) IRISH NATIONALIST ATTITUDES HAVE HITHERTO IN THEIR PUBLIC EXPRESSION TENDED TO UNDERESTIMATE THE FULL DIMENSION OF THE UNIONIST IDENTITY AND ETHOS. ON THE OTHER HAND, UNIONIST ATTITUDES AND PRACTICES HAVE DENIED THE RIGHT OF NATIONALISTS TO MEANINGFUL POLITICAL EXPRESSION OF THEIR IDENTITY AND ETHOS.

(11) THE BASIC APPROACH OF BRITISH POLICY HAS CREATED NEGATIVE CONSEQUENCES. IT HAS SHOWN A DISREGARD OF THE IDENTITY AND ETHOS OF NATIONALISTS. IN EFFECT, IT HAS UNDERWRITTEN THE SUPREMACY IN NORTHERN IRELAND OF THE UNIONIST IDENTITY. BEFORE

THERE CAN BE FUNDAMENTAL PROGRESS BRITAIN MUST RE-ASSESS ITS POSITION AND RESPONSIBILITY.

THE "REQUIREMENTS" ARE THE CRI TER I A W11ICH THE FORUM HAS IDENTIFIED WHICH MUST BE MET BY ANY JUST AND WORKABLE SOLUTION TO THE NORTHERN IRELAND PROBLEM:

CHAPTERS 5.2(1) TO 5.2(10)

(1) A FUNDAMENTAL CRITERION OF ANY NEW STRUCTURES AND PROCESSES . MUST BE THAT THEY WILL PROVIDE LASTING PEACE AND STABILITY:

(2) ATTEMPTS FROM ANY QUARTER TO IMPOSE A PARTICULAR SOLUTION THROUGH VIOLENCE MUST BE REJECTED ALONG WITH THE PROPONENTS OF SUCH METHODS. IT MUST BE RECOGNISED THAT THE NEW IRELAND WHICH THE FORUM SEEKS CAN COME ABOUT ONLY THROUGH AGREEMENT AND MUST HAVE A DEMOCRATIC BASIS:

(3) AGREEMENT MEANS THAT THE POLITICAL ARRANGEMENTS FOR A NEW AND SOVEREIGN IRELAND WOULD HAVE TO BE FREELY NEGOTIATEDAND AGREED TO BY THE PEOPLE OF THE NORTH AND BY THE PEOPLE OF THE SOUTH:

(4) THE VALIDITY OF BOTH THE NATIONALIST AND UNIONIST IDENTITIES IN IRELAND AND THE DEMOCRATIC RIGHTS OF EVERY CITIZEN ON THIS ISLAND MUST BE ACCEPTED: BOTH OF THESE IDENTITIES MUST HAVE EQUALLY SATISFACTORY, SECURE AND DURABLE, POLITICAL, ADMINISTRATIVE AND SYMBOLIC EXPRESSION AND PROTECTION: 5

(5) LASTING STABILITY CAN BE FOUND ONLY IN THE CONTEXT OF NEW STRUCTURES IN WHICH NO TRADITION WILL BE ALLOWED TO DOMINATE THE OTHER, IN WHICH THERE WILL BE EQUAL RIGHTS AND OPDCRTUN ITIES FOR ALL, AND IN WHICH THERE WILL BE PROVISION FOR FORMAL AND EFFECTIVE GUARANTEES FOR ThE PROTECTION OF INDIVIDUAL HUMAN RIGHTS AND OF THE COMMUNAL AND CULTURAL RIGHTS OF BOTH NATIONALISTS AND UMCNISTS:


(6) CIVIL AND RELIGIOUS LIBERTIES AND RIGHTS MUST 3E GUARANTEED AND THERE CAN BE NO DISCRIMINATION OR PREFERENCE IN LAWS OR ADMINISTRATIVE PRACTICES ON GROUNDS OF RELIGIOUS, BELIEFOR AFFILIATION: GOVERNMENT AND ADMINISTRATION MUST BE SENSITIVE TO MINORITY BELIEFS AND ATTITUDES AND SEEK CONSENSUS:

(7) NEW ARRANGEMENTS MUST PROVIDE STRUCTURES AND INSTITUTIONS INCLUDING SECURITY STRUCTURES WITH WHICH BOTH NATIONALISTS AND UNIONISTS CAN IDENTIFY ON THE BASIS OF POLITICAL CONSENSUS:SUCH ARRANGEMENTS MUST OVERCOME ALIENATION IN NORTHERN IRELAND AND STRENGTHEN STABILITY AND SECURITY FOR ALL THE PEOPLE OF IRELAND:

(8) NEW ARRANGEMENTS MUST ENSURE THE MAINTENANCE OF ECONOMIC AND SOCIAL STANDARDS AND FACILITATE, WHERE APPROPRIATE, INTEGRATED ECONOMIC DEVELOPMENT, NORTH AND SOUTH. THE MACRO-ECONOMIC AND FINANCIAL IMPLICATIONS ARE DEALT WITH IN A STUDY BY DKM ECONOMIC CONSULTANTS PUBLISHED WITH THIS REPORT, WHICH IS BASED ON A RANGE OF ASSUMPTIONS WITH REGARD TO THE AVAILA3ILITY OF EXTERNAL FINANCIAL TRANSFERS:

(9) THE CULTURAL AND LINGUISTIC DIVERSITY OF THE PEOPLE OF ALL TRADITIONS, NORTH AND SOUTH, MUST BE PRESERVED AND FOSTERED AS A SOURCE OF ENRICHMENT AND VITALITY:

(19) POLITICAL ACTION IS URGENTLY REQUIRED TO HALT DlSILLUSIGMMENT WITH DEMOCRATIC POLITICS AND THE SLIDE TOWARDS FURTHER VIOLENCE. BRITAIN HAS A DUTY TO RESPOND NOW IN ORDER TO ENSURE THAT THE

PEOPLE OF NORTHERN IRELAND ARE NOT CONDEMNED TO YET ANOTHER GENERATION OF VIOLENCE AND STERILITY, THE PARTIES IN THE FORUM BY THEIR PARTICIPATION IN THIS WORK HAVE ALREADY COMMITTED THEMSELVES TO JOIN IN A PROCESS DIRECTED TOWARDS THAT END.

THE FORUM GOES ON TO STATE THAT THE BRITISH GOVERNMENT HAVE A DUTY TO JOIN IN DEVELOPING THE NECESSARY PROCESS THAT WILL RECOGNISE THESE REALITIES AND GIVE EFFECT TO THESE REQUIREMENTS AND THUS PROMOTE RECONCILIATION BETWEEN THE TWO MAJOR TRADITIONS IN IRELAND: AND TO MAKE THE REQUIRED INVESTMENT OF POLITICAL WILL AND RESOURCES. THE BRITISH AND IRISH GOVERNMENTS SHOULD ENTER INTO DISCUSSIONS TO CREATE THE FRAMEWORK AND ATMOSPHERE NECESSARY FOR THIS PURPOSE.

VIOLENCE

THE FORUM REPEATEDLY CONDEMNS THE USE OF VIOLENCE AND SUPPORT FOR VIOLENCE IN TRENCHANT TERMS. "THE FORUM REJECTS AND CONDEMNS PARAMILITARY ORGANISATIONS AND ALL WHO RESORT TO TERROR AND MURDER TO ACHIEVE THEIR ENDS. IT STRONGLY URGES PEOPLE IN IRELAND OF ALL TRADITIONS AND ALL THOSE WHO ARE CONCERNED ABOUT IRELAND ELSEWHERE IN THE WORLD TO REFUSE ANY SUPPORT OR SYMPATHY TO THESE PARAMILITARY BODIES AND ASSOCIATED ORGANISATIONS. THE ACTS OF MURDER AND VIOLENCE OF THESE ORGANISATIONS AND THEIR DENIAL OF THE LEGITIMATE RIGHTS OF OTHERS, HAVE THE EFFECT OF UNDERMINING ALL EFFORTS TO SECURE DEACE AND POLITICAL PROGRESS." (4.11)(C.F. ALSO 3.19, 3.20, 3.21, 3.22 AND 5 2(5), 5.4, 5.6).


THE UNIONIST AND NATIONALIST IDENTITIES

THE RECOGNITION BY THE FORUM OF THREE CONSTITUENT ELEMENTS IN THE IDENTITY OF THE UNIONIST TRADITION REPRESENTS A FUNDAMENTAL ADVANCE IN THE ACKNOWLEDGEMENT BY CONSTITUTIONAL IRISH NATIONALISM OF THE IDENTITY AND RIGHTS OF THAT TRADITION. THE FORUM ACKNOWLEDGES THESE ELEMENTS IN THE SELF-IDENTIFICATION OF THE UNIONIST TRADITION:

- BRITISHNESS -PROTESTANTISM- THE ECONOMIC ADVANTAGES OF THE BRITISH LINK.

THE FORUM ACCEPTS THE DEFINITION OF THE UNIONIST IDENTITY STATED IN THE SECTION ON "REALITIES” (5.1(9) ABOVE).

THE FORUM HAS ALSO DEFINED THE NATIONALIST IDENTITY AND ETHOS (PARA. 5.1(8) ABOVE).

THE TAOISEACH HAS DESCRIBED AS THE "CENTRAL OPERATIONAL PRINCIPLE" OF THE REPORT OF THE NEW IRELAND FORUM, THE PRINCIPLE THAT BOTH THE NATIONALIST AND THE UNIONIST IDENTITIES, AS DEFINED BY THE FORUM, MUST BE ACCEPTED AND MUST HAVE EQUALLY SATISFACTORY, SECURE AND DURABLE, POLITICAL, ADM, I N I STRATI VE AND SYMBOLIC EXPRESSION AND PROTECTION (5.2(4)).

NOTE: THE DEFINITION OF THE NATIONALIST IDENTITY IS DEVELOPED

IN PARAS. 4.6, 4.7, AND 5.1(8). THAT OF THE UNIONIST IDENTITY IS DEVELOPED IN 4.8, 4.9, 4.1H AND 5.1(9). THE RIGHTS OF BOTH TRADITIONS AND THE MEED TO ACCOMMODATE BOTH IDENTITIES ARE SET OUT IN PARAS. 4.11 TO 4.16 AMD 5.2(4).

IRISH UNITY

THE NATIONALIST PARTIES IN THE FCRUM NATURALLY SHARE "A SENSE OF NATIONAL IRISH IDENTITY AND A DEMOCRATICALLY FOUND WISH TO HAVE THAT IDENTITY INSTITUTIONALISED IN A SOVEREIGN IRELAND UNITED BY CONSENT." (5.1(8)). THE REPORT OF THE NEW IRELAND FORUM DEVELOPS THIS COMMON UNDERSTANDING AT VARIOUS POINTS AND PARTICULARLY IN CHAPTER 5 (5.4 - 5.8).THE FORUM ASSERTS THAT IRISH UNITY SHOULD BE PURSUED DEMOCRATICALLY AND PEACEFULLY. '

THE FORUM, MOREOVER, ACCENTS THAT AGREEMENT AND CONSENT ARE

NECESSARY TO THE ACHIEVEMENT OF IRISH UNITY (5.1(3), 5.2(3),5 4, 5.5, 5.6, 5.7 AND 5.3.):

"AGREEMENT MEANS THAT THE POLITICAL ARRANGEMENTS FOR A NEW AND SOVEREIGN IRELAND WOULD HAVE TO BE FREELY NEGOTIATED AND AGREED TO BY THE PEOPLE OF THE NORTH AND THE PEOPLE OF THE SOUTH" 5.2(3).


THE FORUM EXPRESSES ITS PARTICULAR PREFERENCE IN THE FOLLOWING TERMS "THE PARTICULAR STRUCTURE OF POLITICAL UNITY WHICH THE FORUM WOULD WISH TO SEE ESTABLISHED IS A UNITARY STATE, ACHIEVED BY AGREEMENT AND CONSENT, EMBRACING THE WHOLE ISLAND OF IRELAND AND PROVIDING IRREVOCABLE GUARANTEES FOR THE PROTECTION AND PRESERVATION OF BOTH THE UNIONIST AND NATIONALIST IDENTITIES". (5.7). A BROAD OUTLINE OF THE UNITARY STATE MODEL IS SET OUT IN A SEPARATE CHAPTER OF THE REPORT (6).

OTHER WAYS IN WHICH THE "REALITIES" AND "REQUIREMENTS" MIGHT

BE ACCOMMODATED

THE FORUM IN THE COURSE OF ITS WORK, IN BOTH THE PUBLIC AND PRIVATE SESSIONS, HEARD SUGGESTIONS PUT TO IT AS TO ACCOMMODATING THE UNIONIST AND NATIONALIST IDENTITIES AND INTERESTS IN DIFFERENT WAYS AND IN DIFFERING DEGREES IN A NEW IRELAND. THE FORUM GAVE CAREXUL CONSIDERATION TO THESE SUGGESTIONS. IN ADDITION TO THE UNITARY STATE MODEL, TWO OTHER STRUCTURAL ARRANGEMENTS WERE EXAMINED IN SOME DETAIL, A FEDERAL/CONFEDERAL STATE AND JOINT AUTHORITY. A BROAD OUTLINE OF THESE TWO MODELS IS SET OUT IN TWO SEPARATE CHAPTERS OF THE REPORT (7 AND 8).

THE PARTIES IN THE FORUM, MOREOVER, STATE THAT THEY "ALSO REMAIN OPEN TO DISCUSS OTHER VIEWS WHICH MAY CONTRIBUTE TO POLITICAL DEVELOPMENT." (5.10).

* (This summary, and the text of the Prime Minister's address, were provided by the Embassy of the Republic of Ireland, Canberra According to a press report in London on 25 March 1985, discussions as to a solution to the Northern Irish question were being undertaken by London and Dublin. Government spokesmen hastened to play down the likelihood of a speedy or dramatic outcome to those discussions).


ADDRESS BY THE PRIME MINISTER OF IRELAND,DR. GARRET FITZGERALD TO THE CLOSING SESSION OF THE NEW IRELAND FORUM IN DUBLIN ON 2 MAY 1984

NO ONE CAN BE IN DOUBT ABOUT THE HISTORIC CHARACTER OF THIS OCCASION.

WHILE I HAVE NO WISH TO PRETEND THAT ALL THE DIFFERENCES OF APPROACH TO THE PROBLEM OF NORTHERN IRELAND WHICH WE, THE PARTIES IN THIS FORUM, BROUGHT TO OUR WORK HAVE BEEN ELIMINATED, I BELIEVE THAT WE ARE ALSO ENTITLED TO EXPRESS SATISFACTION, AND INDEED TO TAKE A MEASURE OF PRIDE IN THE WORK WE HAVE DONE TOGETHER AS THE REPRESENTAT IVES OF CONSTITUTIONAL NATIONALISM IN THIS ISLAND - AS PARTIES REPRESENTING ALMOST THREE-QUARTERS OF THE INHABITANTS OF IRELAND AND OVER ^"PERCENT OF THOSE WHO SAHRE THE MAJORITY NATIONALIST TRADITION IN THE ISLAND.

OUR ANALYSIS OF THE PROBLEM WE FACE IS AN IRISH NATIONALIST ANALYSIS. WE ARE, EVERY ONE OF US, IRISH NATIONALISTS AND PROUD OF OUR HERITAGE. OTHERS IN THIS ISLAND OR IN BRITAIN WHO DO NOT SHARE OUR PERSPECTIVE WILL NOT AGREE WITH ALL THE DETAILS OF THIS ANALYSIS. IT IS RIGHT NONETHELESS THAT IT SHOULD BE PLACED ON THE RECORD.

BUT HAVING PLACED IT ON THE RECORD, WE HAVE GONE BEYOND, I WOULD SAY WE HAVE TRANSCENDED, THIS ANALYSIS AND INTERPRETATION OF PAST EVENTS AND WE HAVE SOUGHT TO RAISE OUR SIGHTS TO NEW HORIZONS, AND TO SET OUT IDEAS WHICH COULD, WE HOPE, FORM A BASIS FOR COMMON GROUND BETWEEN THE TWO TRADITIONS IN THIS ISLAND, AND OF COMMON ACTION BY THE TWO GOVERNMENTS IN THESE ISLANDS,DESIGNED TO RECONCILE THESE TWO TRADITIONS. '

THE REPORT OF THE FORUM IS NOT A BLUEPRINT FOR THE ISLAND OF THE FUTURE. THE REPRESENTATIVES OF ONE OF TWO TRADITIONS IN THIS ISLAND CANNOT ARROGATE SUCH A TASK TO THEMSELVES ALONE. WHAT WE HAVE TOGETHER ASSEMBLED IS NOT A BLUEPRINT BUT AN AGENDA FOR POSSIBLE ACTION

THE IDEAS WE HAVE PUT FORWARD TOGETHER SHOW AN OPENNESS TO THE OTHER TRADITION IN THIS ISLAND, AND A SENSITIVITY TO THE PREOCCUPATIONS OF THOSE WHO BELONG TO THAT TRADITION, WHICH HAVE NO PRECEDENT IN IRISH HISTORY. I BELIEVE THAT THIS OPENNESS WILL BE RECOGNISED PUBLICLY BY MANY, AND POSSIBLY PRIVATELY BY MANY MORE AMONG THOSE WHO DO NOT SHARE OUR PERSPECTIVE.

WE IN THE NEW IRELAND FORUM ARE, I FEEL, ENTITLED TO HOPE THAT OTHERS, THE BRITISH PEOPLE AND THEIR LEADERS AND THOSE OF THE UNIONIST TRADITION, WHOSE ANALYSIS OF THE BACKGROUND TO THE PRESENT SITUATION MAY DIFFER NOTABLY FROM OUR OWN, WILL SHOW A SIMILAR OPENNESS IN THEIR APPROACH TO THE. RESOLUTION OF THE PROBLEMS WITH WHICH HISTORY HAS LEFT US IN THIS ISLAND.

SPEAKING FOR MYSELF I HAVE LEARNED A GREAT DEAL DURING THIS LAST YEAR. THE ENCOUNTERS WE HAVE HAD WITH WITNESSES OF BOTH TRADITIONS FROM NORTHERN IRELAND HAVE, IN PARTICULAR, ADDED A DEPTH, A NEW REALISM AND AN ADDED COMMITMENT TO MY FEELING FOR THE PROBLEM. I WOULD VENTURE TO SAY THAT ALL MY COLLEAGUES HAVE HAD A SIMILAR EXPERIENCE SO TOO THROUGH THE PUBLIC SESSION OF THE FORUM HAVE THE PEOPLE OF BOTH PARTS OF IRELAND BUT PARTICULARLY, I BELIEVE, THE PEOPLE OF THIS STATE WHO HAVE THUS BEEN EXPOSED IN AN UNPRECEDENTED WAY TO THE VIEWS AND ATTITUDES OF THE UNIONIST TRADITION. I WOULD HOPE THAT THE DISCUSSION OF THE WORK OF THE FORUM IN THE MONTHS AHEAD WILL CONTINUE TO DEEPEN THE AWARENESS OF ALL IRISH PEOPLE OF THE COMPLEXITIES OF THIS PROBLEM.


AS LEADER OF FINE GAEL AND AS TAOISEACH I WOULD ASK EVERY ORGAN I SAT ION IN IRELAND, EVERY DEBATING SOCIETY, EVERY SOCIAL, CULTURAL AND SPORTING CLUB, EVERY FAMILY AND EVERY INDIVIDUAL TO STUDY THIS REPORT, TO REFLECT ON IT AND TO BRING TO US THE POLITICIANS, THEIR OWN REACTIONS.

THERE ARE, I SUGGEST, THREE ELEMENTS TO THE PROCESS STARTED HERE TODAY: THE FIRST MUST BE AN IMMENSE EFFORT OF REFLECTION AND EDUCATION ABOUT THIS PROBLEM WITHIN THE NATIONALIST TRADITION, CONTINUING WHAT HAS NOW BEEN BEGUN. THE SECOND SHOULD BE A SIMILAR EFFORT ON THE PART OF THE OTHER PROTAGONISTS TO THE PROBLEM OF NORTHERN IRELAND. THIS WE MUST ENCOURAGE IN THE DAYS AHEAD. AND THE THIRD HAS TO BE ACTION. THIS TOO WE MUST WORK FOR, CAREFULLY, PATIENTLY AND TIRELESSLY.

I WOULD LIKE TO PAY TRIBUTE TO ALL WHO HAVE PARTICIPATED IN ThIS WORK. I MUST EXPRESS MY GRATITUDE TO MY COLLEAGUES IN MY OWN PARTY WHO, WORKING TOGETHER IN COMRADESHIP, WITH REALISM AND WITH DEDICAT ION, HAVE BEEN RESPONSIBLE FOR OUR CONTRIBUTION TO WHAT HAS FINALLY EMERGED. BUT I WANT TO PAY TRIBUTE TOO TO THE REPRESETATIVES OF THE OTHER PARTIES WHICH HAVE TAKEN PART IN THIS EXERCISE, THEY, LIKE OURSELVES, HAVE BEEN QUITE CLEARLY MOTIVATED BY A DETERMINATION TO OVERCOME OBSTACLES IN OUR WAY ARISING FROM THE DIFFERENT PERSPECTIV AND DIVERGENCES IN OUR PAST HISTORIES. . IN THE DIFFICULT, DEMANDIN' AT TIMES FRUSTRATING, AND EVEN NERVE-WRECKING, TASK OF SEEKING COMMON GROUND UPON WHICH WE COULD BUILD, NONE HAVE HELD BACK, NOR PLACED PARTY ADVANTAGE BEFORE THE GOOD OF IRELAND. I CANNOT THINK 0 ANY EPISODE IN OUR MODERN HISTORY TO WHICH OUR PARTIES IN THIS STATE HAVE BROUGHT SUCH A POWERFUL COMMITMENT AND UNITY OF PURPOSE.

MAY I SAY THAT THE UNIQUE SOLIDARITY OF THE FORUM OWED AN ENORMOUS AMOUNT TO THE INSPIRATION AND REALISM OF CUR COLLEAGUES IN THE FORD FROM NORTHERN IRELAND, THE SDLP, AND MUCH TOO TO THE HELPFUL ADVICE AND CRITICISM THE FORUM RECEIVED FROM SO MANY DIFFERENT QUARTERS THROUGHOUT NORTHERN IRELAND. FOR MYSELF, IT HAS BEEN A UNIQUE PRIVILEGE TO PARTICIPATE IN THIS FORUM.

THE DEBT WE OWE TO THE CHAIRMAN AND THE SECRETARIAT IS IMMENSE.THIS GROUP OF PEOPLE, ASSEMBLED TOGETHER FOR THIS VERY SPECIAL PURPOSE, FOR THE MOST PART DID NOT EVEN KNOW EACH OTHER, BEFORE THE UNDERTOOK THIS TASK. SOME OF THEM HAD LITTLE OR NO EXPERIENCE OF WORKING WITH POLITICIANS - WHICH IS A VERY SPECIAL KIND OF ACTIVITY INDEED ? THEIR DEDICATION HAS BEEN WHOLE-HEARTED. TO THEIR INTELLIGENCE AND TO THEIR INGENUITY WE, THE POLITICAL PARTICIPANTS IN THI FORUM, AND THE PEOPLE OF THIS ISLAND AS A WHOLE, OWE AN ENORMOUS DEBT.

OUR REPORT IS, AS I SAID, NOT A BLUEPRINT BUT RATHER AN AGENDA:AN AGENDA THAT PRE-SUPPOSES FURTHER ACTION. THIS REPORT WILL BE JUDGED HISTORICALLY NOT BY THE SKILL WITH WHICH DIVERGENT VIEWS HAV BEEN MESHED TOGETHER OR BY ITS LITERARY STYLE, BUT BY WHETHER IT DID IN FACT LEAD TC ACTION THAT BROUGHT PEACE AND STABILITY TO OUR ISLAND.

WE THE CONSTITUTIONAL AND NATIONALIST POLITICIANS IN THE ISLAND, CANNOT BY OURSELVES PRODUCE THE ACTION NECESSARY FOR THIS PURPOSE. OTHERS MUST PLAY THEIR PART. IT MUST BE OUR HOPE AND PRAYER THAT OU, ACTION HERE WILL PROMOTE CONSTRUCTIVE REACTION AND THAT WE AND THE OTHER POLITICIANS IN THESE ISLANDS WHO JOINTLY HAVE THE RESPONSIBILITY FOR SECURING °EACE AND STABILITY IN IRELAND, WILL SUCCEED IN CU. TASK .


OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES

EUROPEAN COMMUNITIES AND GREENLAND

L29* Vol 28 ’1 February 1985.*

English edition ion

Contents Acts whose publication is obligatory

★ Treaty amending, with regard to Greenland, the Treaties establishing the EuropeanCommunities............................................................................................................................... 1

Protocol on special arrangements for Greenland................................................................................................ 7

★ Council Regulation (EEC) No 223/85 of 29 January 1985 on the conclusion of the Agreement on fisheries between the European Economic Community, on the one hand, and the Government of Denmark and the local Government of Greenland, on theother.............................................................................................................................................. 8

Agreement on fisheries between the European Economic Community, on the one hand, and the Government of Denmark and the local Government of Greenland, on the other............................... 9

★ Council Regulation (EEC) No 224/85 of 29 January 1985 on the conclusion of the Protocol on the conditions relating to fishing between the European EconomicCommunity, on the one hand, and the Government of Denmark and the local Government of Greenland, on the other.................................................................................. 13

Protocol on the conditions relating to fishing between the European Economic Community, on the one hand, and the Government of Denmark and the local Government of Greenland, on the other...................................................................................................................................................................................... 14

★ Council Regulation (EEC) No 225/85 of 29 January 1985 laying down certain specificmeasures in connection with the special arrangements on fisheries applicable to Greenland.................................................................................................................................... 18

★ Information on the date of entry into force of the Treaty amending, with regard toGreenland, the Treaties establishing the European Communities ...................................... 19

★ Information on the date of entry into force

— of the Agreement on fisheries between the EEC, on the one hand, and the Government of Denmark and the local Government of Greenland, on the other

— of the Protocol on the conditions relating to fishing between the EEC, on the one hand, and the Government of Denmark and the local Government of Greenland, onthe other ............................................................................................................................... 19

* (The Treaty was published in the Official Journal of the European Communities/ Volume 28, L29, 1 February 1985 p.p. 1-7 Also published were Council Regulations (EEC) Nos. 223, 224,225/85 of 29 January 1985 relating to the fisheries agreement between the EEC, the Government of Denmark, and the local Government of Greenland, pp 8-19. The relevant documents were made available by the Delegation of the European Communities, Canberra.)

•A

1. 2. 85 Official Journal of the European Communities No L 29/1


I

(Acts whose publication is obligatory)

TREATY

amending, with regard to Greenland, the Treaties establishing the European Communities

HIS MAJESTY THE KING OF THE BELGIANS,

HER MAJESTY THE QUEEN OF DENMARK,

THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY,

THE PRESIDENT OF THE HELLENIC REPUBLIC,

THE PRESIDENT OF THE FRENCH REPUBLIC,

THE PRESIDENT OF IRELAND,

THE PRESIDENT OF THE ITALIAN REPUBLIC,

HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG,

HER MAJESTY THE QUEEN OF THE NETHERLANDS,

HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,

Having regard to Article 96 of the Treaty establishing the European Coal and Steel Community,

Having regard to Article 236 of the Treaty establishing the European Economic Community,

Having regard to Article 204 of the Treaty establishing the European Atomic Energy Community,

Whereas the Government of the Kingdom of Denmark has submitted a proposal to the Council for the purpose of revising the Treaties establishing the European Communities so that they cease to apply to Greenland and introducing new arrangements governing relations between the Communities and Greenland;

Whereas, in view of the special features of Greenland, this proposal should be accepted by arrangements being introduced which permit close and lasting links between the Community and Greenland to be maintained and mutual interests, notably the development needs of Greenland, to be taken into account;

Whereas the arrangements applicable to overseas countries and territories set out in Part Four of the Treaty establishing the European Economic Community provide an appropriate framework for these relations, although additional specific provisions are needed to cater for Greenland,

HAVE DECIDED to determine by common agreement new arrangements applicable to Greenland and have, to this end, designated as their Plenipotentiaries:


No L 29/2 Official Journal of the European Communities 1. 2.

HIS MAJESTY THE KING OF THE BELGIANS:

Leo TINDEMANS,

Minister for External Relations of the Kingdom of Belgium

HER MAJESTY THE QUEEN OF DENMARK:

Uffe ELLEMAN-JENSEN,

Minister for Foreign Affairs of Denmark

Gunnar RIBERHOLDT,

Ambassador Extraordinary and Plenipotentiary,

Permanent Representative of Denmark

THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY:

Hans-Dietrich GENSCHER, .

Minister for Foreign Affairs of the Federal Republic of Germany

THE PRESIDENT OF THE HELLENIC REPUBLIC:

Theodoras PANGALOS,

Secretary of State for Foreign Affairs of the Hellenic Republic

THE PRESIDENT OF THE FRENCH REPUBLIC:

Roland DUMAS,

Minister for European Affairs of the French Republic

THE PRESIDENT OF IRELAND:

Peter BARRY,

Minister for Foreign Affairs of Ireland

THE PRESIDENT OF THE ITALIAN REPUBLIC:

Giulio ANDREOTTI,

Minister for Foreign Affairs of the Italian Republic

HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG:

Colette FLESCH,

Minister for Foreign Affairs of the Government of the Grand Duchy of Luxembourg

HER MAJESTY THE QUEEN OF THE NETHERLANDS:

W. F. van EEKELEN,

Secretary of State for Foreign Affairs of the Netherlands

H. J. Ch. RUTTEN,

Ambassador Extraordinary and Plenipotentiary,

Permanent Representative of the Netherlands

HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND:

The Right Honourable Sir Geoffrey HOWE, QC, MP,

Secretary of State for Foreign and Commonwealth Affairs



WHO, having exchanged their full powers, found in good and due form, HAVE AGREED as follows:

. Article 1

The following subparagraph shall be added to point (a) of the second paragraph of Article 79 of the Treaty establishing the European Coal and Steel Community:

This Treaty shall not apply to Greenland.*

Article 2

Denmark shall be added to the Member States specified in the first sentence of the first paragraph of Article 131 of the Treaty establishing the European Economic Community.

Article 3

1. The following Article 136a shall be added to Part Four of the Treaty establishing the European Economic Community:

* Article 136a

The provisions of Articles 131 to 136 shall apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to this Treaty.*

2. The Protocol on special arrangements for Greenland attached to this Treaty shall be annexed to the Treaty establishing the European Economic Community. Protocol 4 on Greenland, annexed to the Act of Accession of 22 January 1972, is hereby repealed.

Article 4

Greenland shall be added to the list in Annex IV to the Treaty establishing the European Economic Community.

Article 5

The following subparagraph shall be added to point (a) of the third paragraph of Article 198 of the Treaty establishing the European Atomic Energy Community:

This Treaty shall not apply to Greenland.*

Article 6

1. This Treaty shall be ratified by the High Contracting Parties in accordance with their jrespective constitutional requirements. The instruments of ratification shal be deposited withthe Government of the Italian Republic.

2. This Treaty shall enter into force on 1 January 1985. If all the instruments of ratification 'have not been deposited by that date, this Treaty shall enter into force on the first day of themonth following the deposit of the instrument of ratification by the last Signatory State totake this step. ;


No L 29/4 Official Journal of the European Communities 1. 2.

Article 7

This Treaty, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, and Italian languages, all eight texts being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which shall transmit a certified copy to each of the Governments of the other Signatory States.

Til bekraeftelse heraf har undertegnede befuldmaegtigede underskrevet denne Traktat.

Zu Urkund dessen haben die unterzeichneten Bevollmachtigten ihre Unterschriften unter diesen Vertrag gesetzt.

Ie TtloxcooT] tov avcoxEpco oi UTCoyeypappfevot Ttlqpe^oumoi un£ypavav xqv Ttapouoaouv0f|Kq. t

In witness whereof, the undersigned Plenipotentiaries have affixed their signatures below this Treaty.

En foi de quoi, les pknipotentiaires soussign£s ont appose leur signature au bas du present ’trait£.

D4 fhianu sin, chuir na Lanchumhachtaigh thios-sinithe a limh leis an gConradh seo.i

In fede di che, in plenipotenziari sottoscritti hanno apposto le loro firme in cake al presente trattato. •

Ten blijke waarvan de ondergetekende gevolmachtigden hun handtekening onder dit ]Verdrag hebben gesteld.

Udfaerdiget i Bruxelles, den trettende marts nitten hundrede og fireogfirs.

Geschehen zu Brussel am dreizehnten Marz neunzehnhundertvierundachtzig.

'Eyive oxiq Bpu^XXfic;, oxu; SeKaipeic; Mapiiou xilia ewiaKboia oy66vra x^ooepa.

Done at Brussels on the thirteenth day of March in the year one thousand nine hundred and eighty-four.

Fait a Bruxelles, le treize mars mil neuf cent quatre-vingt-quatre.

Ama dheanamh sa Bruised an triu 14 d£ag de mhi Marta sa bhliain mile naoi gcead ocht6 a ceathair.

Fatto a Bruxelles, addi tredici marzo millenovecentottantaquattro.

Gedaan te Brussel, de dertiende maart negentienhonderd vierentachtig.



PROTOCOL

on special arrangements for Greenland

Article 1

1. The treatment on import into the Community of products subject to the common organization of the market in fishery products, originating in Greenland, shall, while complying with the mechanisms of the common market organization, involve exemption from customs duties and charges having equivalent effect and the absence of quantitative restrictions or measures having equivalent effect if the possibilities for access to Greenland fishing zones granted to the Community pursuant to an agreement between the Community and the authority responsible for Greenland are satisfactory to the Community.

2. All measures relating to the import arrangements for such products, including those relating to the adoption of such measures, shall be adopted in accordance with the procedure laid down in Article 43 of the Treaty establishing the European Economic Community.

Article 2

The Commission shall make proposals to the Council, which shall act by a qualified majority, for the transitional measures which it considers necessary, by reason of the entry into force of the new arrangements, with regard to the maintenance of rights acquired by natural or legal persons during the period when Greenland was part of the Community and the regularization of the situation with regard to financial assistance granted by the Community to Greenland during that period.

Article 3

The following text shall be added to Annex I to the Council Decision of 16 December 1980 on the association of the overseas countries and territories with the European Economic Community:

‘6. Distinct community of the Kingdom of Denmark:

— Greenland.’

[198 3 AUSTRALIAN INTERNATIONAL LAW NEWS 253

EUROPE: AGREEMENT FOR CO-OPERATION INDEALING WITH POLLUTION OF THE NORTH SEA

The Governments of the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Federal Republic of Germany, the Kingdom of the Netherlands, the Kingdom of Norway, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Economic Community,

Recognising that pollution of the sea by oil and other harmful substances in the North Sea area may threaten the marine environment and the interests of coastal States, :

Noting that such pollution has many sources and that casualties and other incidents at sea are of great concern, ;

Convinced that an ability to combat such pollution as well as active co-operation and mutual assistance among States are necessary for the protection of their coasts and related interests,

Welcoming the progress that has already been achieved within the framework of the Agreement for Co-operation in Dealing with Pollution of the North Sea by Oil, signed at Bonn on 9 June 1969,

4

Wishing to develop further mutual assistance and co-operation in combating pollution,

Have agreed as follows:

Article 1

This Agreement shall apply whenever the presence or the prospective presence of oil or other harmful substances polluting or threatening to pollute the sea within the North Sea area, as defined in Article 2 of this Agreement, presents a grave and imminent danger to the coast or related interests of one or more Contracting Parties.

Article 2

For the purpose of this Agreement the North Sea area means the North Sea proper southwards of latitude 61° N, together with:

(The text of this Agreement was supplied by the Netherlands Embassy, Canberra. The annex to the Agreement has been deleted.).

[ 1985] AUSTRALIAN INTERNATIONAL LAW NEWS_________254

(a) the Skagerrak, the southern limit of which is determined east of the Skaw by the latitude 57°44'.8 N;

(b) the English Channel and its approaches eastwards of a line drawn fifty nautical miles to the west of a line joining the Scilly Isles and Ushant.

Article 3

(1) The Contracting Parties consider that protection against pollution of the kind referred to in Article 1 of this Agreement is a matter which calls for active co-operation between them.

(2) The contracting Parties shall jointly develop and establish guidelines for the practical, operational and technical aspects of joint action.

Article 4

Contracting Parties undertake to inform the other Contracting Parties about:

(a) their national organisation for dealing with pollution of the kind referred to in Article 1 of this Agreement;

(b) the competent authority responsible for receiving and dispatching reports of such pollution and for dealing with questions concerning measures of mutual assistance between Contracting Parties;

(c) their national means for avoiding or dealing with such pollution, which might be made available for international assistance;

(d) new ways in which such pollution may be avoided and about new effective measures to deal with it;

(e) major pollution incidents of this kind dealt with.

Article 5

(1) Whenever a Contracting Party is aware of a casualty or the presence of oil or other harmful substances in the North Sea area likely to constitute a serious threat to the coast or related interests of any other Contracting Party, it shall inform that Party without delay through its competent authority.

(2) The Contracting Parties undertake to request the masters of all ships flying their flags and pilots of aircraft registered in their countriesto report without delay through the channels which may be most' practicable and adequate in the circumstances:

(a) all casualties causing or likely to cause pollution of the sea;

(b) the presence, nature and extent of oil or other harmful substances likely to constitute a serious threat to the coast or related interests of one or more Contracting Parties.

(3) The Contracting Parties shall establish a standard form for the reporting of pollution as required under paragraph 1 of this Article.


Article 6

(1) For the sole purpose of this Agreement the North Sea area is divided into the zones described in the Annex to this Agreement.

(2) The Contracting Party within whose zone a situation of the kind described in Article 1 of the Agreement occurs, shall make the necessary assessments of the nature and extent of any casualty or, as the case may be, of the type and approximate quantity of oil or other harmful substances and the direction and speed of movement thereof.

(3) The Contracting Party concerned shall immediately inform all the other Contracting Parties through their competent authorities of its assessments and of any action which it has taken to deal with the oil or other harmful substances and shall keep these substances under observation as long as they are present in its zone.

(4) The obligations of the Contracting Parties under the provisions of this Article with respect to the zones of joint responsibility shall be the subject of special technical arrangements to be concluded between the Parties concerned. These arrangements shall be communicated to the other Contracting Parties.

Article 7

A Contracting Party requiring assistance to deal with pollution or the prospective presence of pollution at sea or on its coast may call on the help of the other Contracting Parties. Contracting Parties requesting assistance shall specify the kind of assistance they require. The Contracting Parties called upon for help in accordance with this Article shall use their best endeavours to bring such assistance as is within their power taking into account, particularly in the case of pollution byharmful substances other than oil, the technological means available to them.

Article 8

(1) The provisions of this Agreement shall not be interpreted as in any way prejudicing the rights and obligations of the Contracting Parties under international law, especially in the field of the prevention and combating of marine pollution.

(2) In no case shall the division into zones referred to in Article 6 of this Agreement be invoked as a precedent or argument in any matter concerning sovereignty or jurisdiction.


Article 9

(1) In the absence of an agreement concerning the financial arrangements governing actions of Contracting Parties to deal with pollution which might be concluded on a bilateral or multilateral basis or on the occasion of a joint combating operation, Contracting Parties shall bear the costs of their respective actions in dealing with pollution in accordance with subparagraph (a) or subparagraph (b) below:

(a) if the action was taken by one Contracting Party at the express request of another Contracting Party, the Contracting Party requesting such assistance shall reimburse to the assisting Contracting Party the costs of its action;

(b) if the action was taken by a Contracting Party on its own initiative, this Contracting Party shall bear the costs of its action.

(2) The Contracting Party requesting assistance may cancel its request at any time, but in that case it shall bear the costs already incurred or committed by the assisting Contracting Party.

Article 10

Unless otherwise agreed the costs of action taken by a Contracting Party at the request of another Contracting Party shall be calculated according to the law and current practice in the assisting country concerning the reimbursement of such costs by a person or entity liable.

Article 11

Article 9 of this Agreement shall not be interpreted as in any way pre judicing the rights of Contracting Parties to recover from third parties the costs of action to deal with pollution or the threat of pollution under other applicable provisions and rules of national and international law.

Article 12

(1) Meetings of the Contracting Parties shall be held at regular intervals and at any time when, due to special circumstances, it is so decided in accordance with the Rules of Procedure.

(2) The Contracting Parties at their first meeting shall draw up Rules of Procedure and Financial Rules, which shall be adopted by unanimous vote.

(3) The Depositary Government shall convene the first meeting of Contracting Parties as soon as possible after the entry into force of this Agreement.

Article 13

Within the areas of its competence, the European Economic Community is entitled to a number of votes equal to the number of its Member States which are Contracting Parties to the present Agreement. The European Economic Community shall not exercise its right to vote in cases where its Member States exercise theirs and conversely.


Article 14

It shall be the duty of meetings of the Contracting Parties:

(a) to exercise overall supervision over the implementation of this Agreement;

(b) to review the effectiveness of the measures taken under this Agreement;

(c) to carry out such other functions as may be necessary under the terms of this Agreement.

Article 15

(1) The Contracting Parties shall make provision for the performance of secretariat duties in relation to this Agreement, taking into account existing arrangements in the framework of other international agreements on the prevention of marine pollution in force for the same region as this Agreement.

(2) Each Contracting Party shall contribute 2.5% towards the annual expenditure of the Agreement. The balance of the Agreement’s expenditure shall be divided among Contracting Parties other than the European Economic Community in proportion to their gross national product in accordance with the scale of assessment adopted regularly by the United Nations General Assembly. In no case shall the contribution of a Contracting Party to this balance exceed 20% of the balance.

. Article 16

(1) Without prejudice to Article 17 of this Agreement, a proposal by a Contracting Party for the amendment of this Agreement or its Annex shall be considered at a meeting of the Contracting Parties. Following adoption of the proposal by unanimous vote the amendment shall be communicated by the Depositary Government to the Contracting Parties.

(2) Such an amendment shall enter into force on the first day of the second month following the date on which the Depositary Government has received notifications of approval from all Contracting Parties.

Article 17

(1) Two or more Contracting Parties may modify the common boundaries of their zones described in the Annex to this Agreement.

(2) Such a modification shall enter into force for all Contracting Parties on the first day of the sixth month following the date of its communication by the Depositary Government unless, within a period of three months following that communication, a Contracting Party has expressed an objection or has requested consultation on the matter.


Article 18

(1) This Agreement shall be open for signature by the Governments of the States invited to participate in the Conference on the Agreement for Co-operation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances, held at Bonn on 13 September 1983, and by the European Economic Community.

(2) These States and the European Economic Community may become Parties to this Agreement either by signature without reservation as to ratification, acceptance or approval or by signature subject to ratification, acceptance or approval followed by ratification, acceptance or approval.

(3) Instruments of ratification, acceptance or approval shall be deposited with the Government of the Federal Republic of Germany.

Article 19

(1) This Agreement shall enter into force on the first day of the second month following the date on which the Governments of all the States mentioned in Article 18 of this Agreement and the European Economic Community have signed the Agreement without reservation as to ratification, acceptance or approval or have deposited an instrument of ratification, acceptance or approval.

(2) Upon the entry into force of this Agreement, the Agreement for Co-operation in dealing with Pollution of the North Sea by Oil, done at Bonn on 9 June 1969, shall cease to be in force.

Article 20

(1) The Contracting Parties may unanimously invite any other coastal State of the North East Atlantic area to accede to this Agreement.

(2) In such a case Article 2 of this Agreement and its Annex shall be amended as necessary. The amendments shall be adopted by unanimous vote at a meeting of the Contracting Parties and shall take effect upon the entry into force of this Agreement for the acceding State.

Article 21

(1) For each State acceding to this Agreement, the Agreement shall enter into force on the first day of the second month following the date of deposit by such State of its instrument of accession.

(2) Instruments of accession shall be deposited with the Government of the Federal Republic of Germany.


Article 22

(1) After this Agreement has been in force for five years it may be denounced by any Contracting Party.

(2) Denunciation shall be effected by a notification in writing addressed to the Depositary Government which shall notify all the other Contracting Parties of any denunciation received and of the date of its receipt.

(3) A denunciation shall take effect one year after its receipt by the Depositary Government.

Article 23

The Depositary Government shall inform the Contracting Parties and those referred to in Article 18 of this Agreement of:

(a) any signature of this Agreement;

(b) the deposit of any instrument of ratification, acceptance, approval or accession and of the receipt of any notice of denunciation;

(c) the date of entry into force of this Agreement;

(d) the receipt of any notification of approval relating to amendments to this Agreement or its Annex and of the date of entry into force of such amendments.

Article 24

The original of this Agreement, of which the English, French and German texts are equally authentic, shall be deposited with the Government of the Federal Republic of Germany, which shall send certified copies thereof to the Contracting Parties and which shall transmit a certified copy to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.

DONE at Bonn, this thirteenth day of September 1983.


CENTRAL AMERICA -THE OONTADORA PEACE PROCESS:NICARAGUA AND THE UNITED STATES -

According to the BBC World Service, 22 September 1984, the Nicaraguan leader Mr Daniel Ortega is ready to sign the "peace plan" (the "Contadora Act")prepared by the Contadora Group - Columbia, Venezula, Mexico and Panama. He indicated that his country would be prepared to sign this without modification and called upon the United States to also sign the draft peace treaty. Since the United States nl^iTTiPrl an historical right to be involved in the affairs of central America, he observed that it should also sign the treaty and comply with its provisions. Some of the documents relevant to the Contadora peace process include:-

1. The Cancun Declaration on Peace in Central America, 17 July 1983:UN Document A/38/303 and S/15877; 23 ILM 841 (1984);

2. Document of Objectives of The Contadora Group and the Central American States, 9 September 1983: UN Document S/16041; 23 IIM 846 (1984);

3. Conmunique of the Contadora Group and Central American Foreign Ministers, 8 January 1986: UN Document A/39/71 and S/16262;23 I1M 857 (1984).

4. Contadora Act for Peace and Co-operation in Central America

(Reference should also be made to selected documents published in 23 HM 852-864 (1984) and to the Costa Rica - Nicaragua Joint Resolution (1984) Australian I.L.News 384; 23 IW 863 (1984).The Contadora Act for Peace and Co-operation in Central America is a draft tready prepared by the Contadora group. The signatories to the treaty would be Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua. The Contadora group would be parties to an "Additional Protocol" which would be annexed to the Contadora Act. We publish belcw a non official translation of the revised version of the Contadora Act, made available to us in October 1984 by His Excellency, J. Cabrera Munoz Ledo, Ambassador of Mexico to Australia.

In the meantime the US has signalled objections to seme aspects of the Contadora Act, and in November, seme of the proposed parties to the Act indicated the need for further revisions.

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Cl98S] AUSTRALIAN INTERNATIONAL UN NENS 288


ARGENTINA

TVjo types of problems affect our world as a whole: the crisis in thepolitical order and the crisis in the international economic order.

We are witnessing today the extent to which strategic purposes tend almost exclusively to define relations between States. On the basis of these strategic ideas, a new phase in the nuclear arms race has begun, one that makes the boundary between peace and war very much more precarious and frail. I am speaking of the boundary between the life and the death of mankind. This is a tragic prospect, for which the strongest hold each other responsible, while the majority of the countries of the international ccrrmunity are made to stand idly by....

Sometimes, everything seems to indicate that our role is limited to making demands, or possibly to denouncing this state of affairs. None the less, we shall continue our anguisehd clamour, because we know that our voice must be raised unceasingly in defence of peace. That is why I ratified the 22 May 1984 declaration, together with the Heads of State or Government of Greece, India,Mexico, Tanzania and Sweden. In that declaration we stated that we share the conviction that there must not be another world war and that the advance towards global suicide must be restrained and halted. The world cannot oscillate between a devastating nuclear war and peace. We must work together to influence present and future events.International Debt

In sum, I believe that there are two things which threaten peace. On the one hand there is the arms race and the direct strategic confrontation between the big Powers, and on the other hand there is the instability, injustice and poverty in the South. There is very little we can do about the first, but the second involves us directly ....

I have stated that one of the characteristics of the present day is that international relations are increasingly relations among Powers rather than relations among societies. But I must say too that another disturbing fact of our day is that the economic order is increasingly becoming an exclusively financial order.(The President of Argentina, Mr. Raul Alfonsin, addressed the 39th General Assembly of the United Nations on 24 September, 1984. This is an English version, edited from the full text supplied by Mr. H. A. Martinez-Castro, Counsellor, the Argentine Embassy, Canberra)


In Latin America, in 1983, the per capita gross national product was 10 per cent below the level of 1980. We have slipped backward six years, since we had already reached that level in 1977.

The result of this greatly affects the welfare of our peoples, a result which is also due to the deterioration of our earnings brought about by the decline in the terms of foreign exchange.

The crisis of our foreign debt lies precisely in this deterioration of our economies, which are hindered from utilizing their productive potential and in the reduction of employment and welfare. Last year, this debt meant, in terms of interest alone, the allocation of almost a third of the exports from the region.

Forgotten now are the international commitments agreed to during the first and second development decades - launched by the United Nations - which obligated the most advanced countries to transfer 1 per cent of their national product to the developing countries.

Paradoxically, these commitments are reversed today. The developing countries are now the ones that must transfer part of their national product to the developed countries. It is not an annual 1 per cent, but an annual 3 per cent and sometimes more.

Owing to this overwhelming reality and to the attempt to restore rationality and good sense in the financial order, we in Latin America have proposed dialogue as a necessity - a dialogue between the richer countries and our countries, a practical dialogue about one of the questions that most upsets the financial order and stability of our countries: the question of the foreign debt.We believe that this debt not only affects the debtor countries, but, because of its political impact, also directly involves the creditors.

We think that if everything depended on the manner in which the problem was being dealt with at present, we would not find a permanent and safe solution. This is a subject that no longer has anything to do with the problem as it was in the early 1970s. Nevertheless, the solutions proposed are still the same. Only a joint political will can new give rise to new solutions for a problem that is no longer traditional.

Today, the question of debt is inextricably linked to the political and social destingy of our countries and, since it affects the whole region, it jeopardizes global stability in Latin America.

The meetings in Quito, Cartagena and Mar del Plata this year have been the best expression of the seriousness of the situation. They also translated our caution and moderation that led to a call for a dialogue with the creditor countries. We hope that there will be a positive response to this call. Dialogue is not confrontation, as some people have alleged. Rather, confrontation arises


when dialogue is precluded. I believe that both political logic and experience shew this.

Perhaps on the basis of this concrete subject the aspiration of the North-South dialogue may materialize. It has been formulated many times, but up to now practical results could not be achieved. feagle Channel and the Malvinas

This call for peace by the Argentine democracy is valid because we acted decisively for its preservation in the events in which we participated directly.

In one of those disputes - between us and the Republic of Chile - my country took resolute steps. In the framework of the mediation of His Holiness John Paul II# whose assistance we highly value and appreciate# my Government showed its firm will to find an equitable solution that would put an end to a century-old conflict.

What we can present to the international community are words of peace translated into peacefu.1 actions through dialogue and negotiations.

In the other conflict, the one which continues between us ana the United Kingdom over the Malvinas, South Sandwich and South Georgia Islands# our negotiating will and decision have encountered intransigence.

For almost 150 years, a portion of Argentine territory has been subjected to the colonial regime imposed by the United Kingdom. This unjust and illegal situation, which Argentina has never accepted, permanently affects our national life. \ . . ■ ' .

The mission of recovering the Malvinas, South Georgia and South Sandwich Islands for our heritage is a mandate that has been transmitted by successive generations of Argentines up to our day and this process will continue until the attainment of its objective. There should be no doubt about this, as this is a cause with which my people identifies deeply. We have international law on our side. The failure to understand it in this way is tantamount to ignoring one of the most important facts of the problem that exists between my country and the.* occupying Power.

4 It is a national cause, but it is also a Latin American cause inasmuch as Latin America has come forth in solidarity to defend a national integrity that it considers its own, Latin America now also views with alarm the presence of a military force equipped with the most sophisticated armaments in the South Atlantic, threatening the interests and stability of the entire area and constituting a dangerous intrusion of the East-West conflict into the region.

Argentina is firmly committed to seeking the restitution of the MalvinasI

Islands only through peaceful means. This my Government has stated, and it will fulfil this aim. There should be no doubt in anyone's mind about this. Our concept of democracy, which my country has now fortunately recovered, has two facets: a domestic one and one that looks outward. The first one is related to the full exercise of the Constitution, with the concomitant limitations upon the exercise of State powers and respect for human rights. The second one, as I have already mentioned, involves relations with other countries.

This outward projection of the democratic way of life translates into a behaviour that is civilized and law-abiding, and may be summed up as respect for the prevalence of legal rules in relations among States.

[1985 J AUSTRALIA!! INTERNATIONAL LAN NENB 292________________

| The United Nations Charter, a true constitution of the international . community, imposes on Member States the obligation to solve their disputes by peaceful means. Consistent‘with this legal duty, my Government has taken steps towards attaining the maximum flexibility allowed by national rights and has sought to reinitiate negotiations with the United Kingdom to solve this conflict. Naturally, we also seek the normalization of the friendly relations which Argentina has traditionally had with that country. But that cannot be achieved if, from the very beginning of the attempts at normalization, we lack'the certainty that a mechanism will be established to allow negotiation on the sovereignty dispute, which represents the main obstacle on the path leading to that normalization

Unfortunately, judging by recent bilateral contacts that culminated in the ierne meeting urtder the auspices of Switzerland and Brazil, up to now we seem to be left with nothing but the intention, clearly stated by the United Kingdom, to postpone sine die the fulfilment of the urgent demand of the General Assembly for the parties to sit down at the negotiating table. Together with ray gratitude to Brazil and Switzerland and to the Secretary-General for their laudable efforts, I wish to express my ardent desire for that demand of the General Assembly to be carried out as soon as possible for the sake of law and justice.

Central America

In our opinion, the proposals and actions of the Contadora Group, expressly supported by the General Assembly, offer a suitable alternative to achieve the sought-after peaceful solution to this very painful conflict for all of Latin America


Cl985 3 AUSTRALIAN INTERNATIONAL LAW NEWS 294

FALKLAND/MALVINAS ISLANDS - SOUTH ATLANTIC WAR - SINKING OF THE BELGRANO

LETTER AND ANNEX FRCM THE BRITISH PRIME MINISTER ON THE SINKING OF THE BELGRANO*

FOLLOWING IS THE TEXT OF A LETTER FROM THE PRIME MINISTER MRS MARGARET THATCHER, DATED 19 SEPTEMBER TO MR GEORGE FOULKES, MP TOGETHER WITH AN ANNEX:

LETTER:

YOU WROTE TO ME ON 23 AUGUST AND 14 SEPTEMBER ABOUT DECISIONS TAKEN BY THE GOVERNMENT AT THE TIME OF THE FALKLANDS CONFLICT.

YOUR QUESTIONS REFLECT A NUMBER OF FUNDAMENTAL MISCONCEPTIONS ABOUT THE SITUATION IN THE SOUTH ATLANTIC IN APRIL AND MAY 1982. I AM ENCLOSING, AS AN ANNEX TO THIS LETTER, A STATEMENT OF THE POSITION WHICH SHOULD CLEAR UP THESE MISCONCEPTIONS, AND REMOVE ANY DOUBTS IN YOUR MIND ABOUT THE REASONS FOR OUR ACTIONS.

TO PUT THE MATTER BRIEFLY, IN APRIL 1982 ARGENTINA HAD ATTACKED AND INVADED BRITISH TERRITORY., DESPITE INTENSE AND CONTINUING DIPLOMATIC EFFORTS, ARGENTINA REFUSED TO COMPLY WITH A MANDATORY RESOLUTION OF THE UNITED NATIONS SECURITY COUNCIL TO WITHDRAW ITS FORCES., WITH ALL-PARTY SUPPORT, AND IN EXERCISE OF OUR INHERENT RIGHT OF SELF-DEFENCE UNDER ARTICLE 51 OF THE UN CHARTER, THE BRITISH GOVERNMENT DESPATCHED THE TASK FORCE TO THE SOUTH ATLANTIC., BY THE END OF APRIL AS IT APPROACHED THE FALKLAND ISLANDS THE TASK FORCE WAS INCREASINGLY VULNERABLE TO ARGENTINE ATTACK., BY 2 MAY IT HAD ALREADY BEEN ATTACKED BY ARGENTINE AIRCRAFT AND THERE WERE CLEAR AND UNEQUIVOCAL INDICATIONS THAT IT WAS UNDER FURTHER THREAT FROM A STRONG AND CO-ORDINATED PINCER MOVEMENT BY THE MAJOR UNITS OF THE ARGENTINE NAVY, INCLUDING THE CRUISER 'GENERAL BELGRANO* AND THE AIRCRAFT CARRIER '25 DE MAYO'. THE THEN ARGENTINE OPERATIONS COMMANDER, SOUTH ATLANTIC, HAS SINCE CONFIRMED PUBLICLY THAT HIS WARSHIPS HAD INDEED BEEN ORDERED TO ATTACK. NO GOVERNMENT WITH A PROPER SENSE OF -RESPONSIBILITY COULD HAVE REFRAINED FROM TAKING APPROPRIATE MEASURES TO COUNTER THE THREATS TO THE TASK FORCE, AND TO ENSURE ITS SAFETY TO THE MAXIMUM EXTENT POSSIBLE. RISKS COULD NOT BE TAKEN, ESPECIALLY WHEN HOSTILITIES HAD BEEN SO CLEARLY EMBARKED UPON BY THE ARGENTINES.

YOUR QUESTIONS ABOUT THE ARGENTINE AIRCRAFT CARRIER AND THE EVENTS OF 2 MAY ARE ANSWERED IN THE ANNEX

YOU ALSO ASKED WHETHER A POLARIS SUBMARINE WAS DEPLOYED AS DESCRIBED IN THE NEW STATESMAN ARTICLE ON 23 AUGUST. THERE WAS NO CHANGE IN THE STANDARD DEPLOYMENT PATTERN OF OUR POLARIS SUBMARINES DURING THE CONFLICT. MOREOVER, THE GOVERNMENT GAVE A CATEGORICAL ASSURANCE AT THE TIME THAT NUCLEAR WEAPONS WOULD NOT BE USED IN THE FALKLANDS CONFLICT (SEE THE STATEMENT MADE BY VISCOUNT TRENCHARD IN THE HOUSE OF LORDS ON 27 APRIL 1982 - HANSARD VOL. 429, COL. 778).

* The text of this letter was made available by Mr. MS. Hone, Second Secretary, British High Ccmmissian, Canberra.

[ 1985] AUSTRALIAN INTERNATIONAL LAW NEWS 29$

I HAVE GIVEN YOU IN THE ANNEX AS FULL AN ACCOUNT OF THESE MATTERS AS, I AM ADVISED, IS CONSISTENT WITH NATIONAL SECURITY. I MUST MAKE IT CLEAR THAT IT WOULD BE, AND WILL REMAIN, QUITE WRONG FOR ME TO DISCLOSE ALL THE MATERIAL THAT WAS AVAILABLE TO MINISTERS AT THE TIME TO DO SO WOULD STILL RISK IRREPARABLE DAMAGE TO NATIONAL SECURITY AND COULD PUT LIVES AT RISK IN THE FUTURE.

THOSE WHO SEEK TO CRITICISE THE GOVERNMENT•S ACTIONS (INCLUDING PEOPLE OUTSIDE THIS COUNTRY WHO HAVE EVERY REASON TO DISCREDIT THE GOVERNMENT OF THE UNITED KINGDOM) ARE .NOT SUBJECT TO THE SAME CONSTRAINTS AND HAVE FELT FREE TO MAKE A LARGE NUMBER OF ASSERTIONS. I HAVE ALREADY EXPLAINED WHY I CANNOT MAKE PUBLIC EVERYTHING WHICH WOULD MAKE IT POSSIBLE TO DISCUSS WHETHER THOSE ASSERTIONS ARE TRUE OR FALSE. IN THESE CIRCUMSTANCES, I MUST EMPHASISE THE CENTRAL POINT ON THE BASIS OF ALL THE MATERIAL THAT WAS AVAILABLE TO MINISTERS AT THE TIME, MY COLLEAGUES AND I WERE SATISFIED THAT WE TOOK THE RIGHT DECISIONS IN ORDER TO PROTECT THE LIVES OF OUR FORCES. NOTHING THAT HAS SINCE BEEN PUT FORWARD - AND I CAN ASSURE YOU THAT IT HAS ALL BEEN EXAMINED WITH THE UTMOST CARE - HAS LED ME OR ANY OF MY COLLEAGUES TO HAVE ANY DOUBTS THAT WE WERE RIGHT.

(SGO) MARGARET THATCHER

ANNEX.

1. THE THREATS WHICH FACED THE TASK FORCE AT THE END OF APRIL AND THE BEGINNING OF MAY 1982 CAN ONLY BE APPRECIATED IN THE LIGHT OF THE SITUATION IN THE SOUTH ATLANTIC AT THAT TIME.

2. ON 2ND APRIL 1982, THE PROCESS OF DIPLOMATIC NEGOTIATIONS OVER THE FALKLAND ISLANDS WAS ABRUPTLY INTERRUPTED BY ARGENTINA'S UNPROVOKED ARMED INVASION OF THE ISLANDS. HAVING OBTAINED CONTROL OF THE ISLANDS, THE ARGENTINES T.HEN REFUSED TO COMPLY WITH MANDATORY RESOLUTION 502 OF THE UNITED NATIONS SECURITY COUNCIL, WHICH DEMANDED AN IMMEDIATE WITHDRAWAL OF THEIR FORCES.

3 IN EXERCISE OF THE INHERENT RIGHT OF SELF-DEFENCE UNDER ARTICLE 51 OF THE UNITED NATIONS CHARTER, AND IN PARALLEL WITH INTENSE BUT ULTIMATELY UNPRODUCTIVE DIPLOMATIC ACTIVITY, THE BRITISH TASK FORCE WAS DESPATCHED AT THE BEGINNING OF APRIL, WITH ALL-PARTY SUPPORT, FOLLOWING ARGENTINA'S ACTION, WHICH WAS WHOLLY INCONSISTENT WITH INTERNATIONAL LAW AND THE UN CHARTER. 28,000 BRITISH SERVICEMEN AND CIVILIANS EVENTUALLY SAILED IN THE TASK FORCE., IT WAS THE FOREMOST AND CONTINUING DUTY OF THE GOVERNMENT TO TAKE SUCH DECISIONS AS WERE NECESSARY TO PROTECT THEM AS THE EVENTS OF THE MOMENT DEMANDED. ' 4

4. ON 7TH APRIL, THE DEFENCE SECRETARY HAD ANNOUNCED THE ESTABLISHMENT, AS FROM 12TH APRIL, OF A 200 NAUTICAL MILE MARITIME EXCLUSION ZONE AROUND THE FALKLAND ISLANDS., BUT IT WAS MADE CLEAR IN THE ANNOUNCEMENT THAT THIS WAS ''WITHOUT PREJUDICE TO THE RIGHT OF THE UNITED KINGDOM TO TAKE WHATEVER ADDITIONAL MEASURES MAY BE NEEDED IN EXERCISE OF ITS RIGHT OF SELF-DEFENCE, UNDER ARTICLE 51 OF THE UNITED NATIONS CHARTER,' MR NOTT TOLD THE HOUSE OF COMMONS THAT IF IT BECAME NECESSARY, THE BRITISH GOVERNMENT WOULD USE FORCE TO ACHIEVE THE OBJECTIVE OF SECURING ARGENTINE WITHDRAWAL HE ADDED*•'WE HOPE THAT IT WILL NOT COME TO THAT. WE HOPE THAT DIPLOMACY WILL SUCCEED NEVERTHELESS, THE ARGENTINES WERE THE FIRST TO USE FORCE OF ARMS IN ORDER TO ESTABLISH THEIR PRESENT CONTROL OF THE FALKLANDS...'


5. IN LATE APRIL 1982 THE TASK FORCE WAS STRUNG OUT BETWEEN ASCENSION ISLAND AND THE FALKLANDS AND VULNERABLE TO ATTACK. ON 23RD APRIL 1982, THE GOVERNMENT ACCORDINGLY SENT THE FOLLOWING MESSAGE TO THE ARGENTINE GOVERNMENT, MAKING IT CLEAR THAT THE TERMS OF THE COMMUNICATION CAME INTO EFFECT IMMEDIATELY:

"IN ANNOUNCING THE ESTABLISHMENT OF A MARITIME EXCLUSION ZONE AROUND THE FALKLAND ISLANDS, HER MAJESTY’S GOVERNMENT MADE IT CLEARthat this measure was without prejudice to the right of the unitedKINGDOM TO TAKE WHATEVER ADDITIONAL MEASURES MAY BE NEEDED IN THE EXERCISE OF ITS RIGHT OF SELF-DEFENCE UNDER ARTICLE 51 OF THE UNITED NATIONS CHARTER. IN THIS CONNECTION, HER MAJESTY’S GOVERNMENT NOW WISHES TO MAKE CLEAR THAT ANY APPROACH ON THE PART OF ARGENTINE WARSHIPS, INCLUDING SUBMARINES, NAVAL AUXILIARIES, OR MILITARY AIRCRAFT WHICH COULD AMOUNT TO A THREAT TO INTERFERE WITH THE MISSION OF BRITISH FORCES IN THE SOUTH ATLANTIC WILL ENCOUNTER THE APPROPRIATE RESPONSE. ALL ARGENTINE AIRCRAFT INCLUDING CIVIL AIRCRAFT ENGAGING IN SURVEILLANCE OF THESE BRITISH FORCES WILL BE REGARDED AS HOSTILE AND ARE LIABLE TO BE DEALT WITH ACCORDINGLY."

IT IS CLEAR FROM THE ABOVE TEXT THAT THE WARNING APPLIED OUTSIDE THE EXCLUSION ZONE AS WELL AS WITHIN IT. THIS MESSAGE WAS NOTIFIED TO THE UNITED NATIONS SECURITY COUNCIL AND CIRCULATED ACCORDINGLY ON 24TH APRIL. IT WAS ALSO RELEASED PUBLICLY.

6. ON 28TH APRIL 1982 THE GOVERNMENT ANNOUNCED THE ESTABLISHMENT OF A 200 NAUTICAL MILE TOTAL EXCLUSION ZONE AROUND THE FALKLANDS ISLANDS, EFFECTIVE AS FROM 30TH APRIL, WHICH WOULD APPLY TO ALL ARGENTINE SHIPS AND AIRCRAFT. THE ANNOUNCEMENT AGAIN STRESSED THAT 'THESE MEASURES ARE WITHOUT PREJUDICE TO THE RIGHT OF THE UNITED KINGDOM TO TAKE WHATEVER ADDITIONAL MEASURES MAY BE NEEDED INEXERCISE OF ITS RIGHT OF SELF-DEFENCE, UNDER ARTICLE 51 OF THE UN CHAPTER'. ‘

7. ON 30TH APRIL, MINISTERS MET TO CONSIDER THE IMPLICATIONS OF THE CAPABILITY OF THE AIRCRAFT CARRIED BY THE ARGENTINE AIRCRAFT CARRIER, THE '25 DE MAYO', TO THREATEN OUR FORCES FROM THE AIR AT SUBSTANTIAL DISTANCES FROM THE ARGENTINE MAINLAND. AFTER THE MOST CAREFUL CONSIDERATION OF THE LEGAL, MILITARY AND POLITICAL ISSUES, MINISTERS DECIDED THAT OUR FORCES SHOULD BE PERMITTED TO ATTACK THE '25 DE MAYO' ON THE HIGH SEAS (THAT IS BOTH WITHIN AND OUTSIDE THE TOTAL EXCLUSION ZONE), IN CIRCUMSTANCES IN WHICH IT POSED A MILITARY THREAT TO THE TASK FORCE. AS SET OUT IN PARAGRAPH 5 ABOVE, A WARNING THAT ARGENTINE WARSHIPS THREATENING THE TASK FORCE WOULD MEET WITH AN APPROPRIATE RESPONSE HAD ALREADY BEEN DELIVERED TO THE ARGENTINE GOVERNMENT ON 23RD APRIL., AND MINISTERS CONCLUDED THAT NO FURTHER WARNING WAS NEEDED. THERE IS NO TRUTH IN THE SUGGESTION THAT THE - FOREIGN SECRETARY AND THE ATTORNEY GENERAL OPPOSED OR DISSENTED FROM THE DECISION OF 30TH APRIL. BUT ON 1ST MAY, THE DAY HE LEFT FOR WASHINGTON, THE FOREIGN SECRETARY RAISED THE NEED FOR A FURTHER WARNING TO THE ARGENTINE GOVERNMENT. THE MATTER HAD BEEN TAKEN NO FURTHER, HOWEVER, WHEN THE GENERAL SITUATION CHANGED COMPLETELY: FIRST, WITH THE ATTACKS WHICH THE ARGENTINE AIR FORCE LAUNCHED FOR THE FIRST TIME ON THE TASK FORCE ON 1ST MAY AND SECOND, WITH THE CLEAR AND UNEQUIVOCAL INDICATIONS WHICH BECAME AVAILABLE THAT WEEKEND THAT THE ARGENTINE NAVY WAS COMMITTED TO HOSTILE ACTION AGAINST THE TASK FORCE.


8. ON 1ST MAY 1982 THE TASK FORCE CAME UNDER ATTACK FOR THE FIRST TIME FROM THE ARGENTINE AIRFORCE, OPERATING FROM THE MAINLAND AS THE DEFENCE SECRETARY SAID IN THE HOUSE OF COMMONS ON 4TH HAY. 'ON 1ST MAY THE ARGENTINES LAUNCHED ATTACKS ON OUR SHIPS, DURING MOST OF THE DAYLIGHT HOURS. THE ATTACKS BY ARGENTINE MIRAGE AND CANBERRA AIRCRAFT OPERATING FROM THE MAINLAND WERE REPULSED BY BRITISH SEA

' HARRIERS. HAD OUR SEA’ HARRIERS FAILED TO REPULSE THE ATTACKS ON THE TASK FORCE, OUR SHIPS COULD HAVE BEEN SEVERELY DAMAGED OR SUNK IN FACT, ONE ARGENTINE CANBERRA AND ONE MIRAGE WERE SHOT DOWN AND OTHERS WERE DAMAGED. WE BELIEVE THAT ANOTHER MIRAGE WAS BROUGHT DOWN BY ARGENTINE ANTI-AIRCRAFT FIRE. ONE OF OUR FRIGATES SUFFERED SPLINTER DAMAGE AS A RESULT OF THE AIR ATTACKS AND THERE WAS ONE BRITISH CASUALTY WHOSE CONDITION IS NOW SATISFACTORY. ALL OUR AIRCRAFT RETURNED SAFELY. ON THE SAME DAY, OUR FORCES LOCATED AND ATTACKED WHAT WAS BELIEVED TO BE AN ARGENTINE SUBMARINE WHICH WAS CLEARLY IN A POSITION TO TORPEDO OUR SHIPS. IT IS NOT KNOWN WHETHER THE SUBMARINE WAS HIT. THE PROLONGED AIR ATTACK ON OUR SHIPS, THE PRESENCE OF AN ARGENTINE SUBMARINE CLOSE BY, AND ALL OTHER INFORMATION AVAILABLE TO US, LEFT US IN NO DOUBT OF THE DANGERS TO OUR TASK FORCE FROM HOSTILE ACTION'. ALL BRITISH UNITS WERE ON MAXIMUM ALERT TO DEAL WITH ANY NAVAL OR AIR ATTACKS.

9 AS ADMIRAL WOODWARD HAS EXPLAINED ''EARLY ON THE MORNING OF 2ND MAY, ALL THE INDICATIONS WERE THAT THE '25 DE MAYO', THE ARGENTINE CARRIER, AND A GROUP OF ESCORTS HAD SLIPPED PAST MY FORWARD SSN BARRIER TO THE NORTH, WHILE THE CRUISER GENERAL BELGRANO AND HER ESCORTS WERE ATTEMPTING TO COMPLETE THE PINCER MOVEMENT FROM THE SOUTH, STILL OUTSIDE THE TOTAL EXCLUSION ZONE." THE ARGENTINE OPERATIONS COMMANDER IN THE SOUTH ATLANTIC AT THE TIME, ADMIRAL JUAN JOSE LOMBARDO, CONFIRMED WITHOUT HESITATION ON THE BBC PANORAMA PROGRAMME ON 16 APRIL THIS YEAR THAT THE ARGENTINE NAVY,AS WE THOUGHT, WERE ATTEMPTING TO ENGAGE IN A PINCER MOVEMENT AGAINST THE TASK FORCE, USING THE '25 DE MAYO' AND ITS ESCORTS IN THE NORTH AND THE 'GENERAL BELGRANO* AND ITS ESCORTS ATTEMPTING TO COMPLETE THE MOVEMENT FROM THE SOUTH.

10. AS WAS FURTHER EXPLAINED IN THE PRIME MINISTER'S LETTER TO MR. DENZIL DAVIES, HMS CONQUEROR HAD SIGHTED THE BELGRANO FOR THE FIRST TIME ON 1ST MAY. ON 2ND MAY, IN RESPONSE TO THE THREAT TO THE TASK FORCE, ADMIRAL WOODWARD SOUGHT A CHANGE TO THE RULES OF ENGAGEMENT TO ENABLE CONQUEROR TO ATTACK THE BELGRANO OUTSIDE THE EXCLUSION ZONE. ON THE BASIS OF THE CLEAR AND UNEQUIVOCAL INDICATIONS AVAILABLE TO THE GOVERNMENT THAT THE ARGENTINE NAVY POSED A REAL AND DIRECT THREAT TO THE TASK FORCE AND THOSE SAILING WITH IT AND ON THE ADVICE OF THEIR MOST SENIOR MILITARY ADVISERS, MINISTERS DECIDED AT 1 PM THAT THE RULES OF ENGAGEMENT SHOULD BE CHANGED TO PERMIT ATTACKS ON ALL ARGENTINE NAVAL VESSELS ON THE HIGH SEAS, AS HAD PREVIOUSLY BEEN AGREED FOR THE *25 DE MAYO' ALONE (SEE PARAGRAPH 7 ABOVE). THE NECESSARY ORDER CONVEYING THIS CHANGE WAS SENT BY NAVAL HEADQUARTERS AT NORTHWOOD TO HMS CONQUEROR AT 1.30 PM (ALL TIMINGS IN THIS AND THE FOLLOWING PARAGRAPHS ARE GIVEN IN LONDON TIME). SHORTLY AFTER 3 PM, HMS CONQUEROR REPORTED THE POSITION OF THE BELGRANO AT 9 AM AND 3 PM THAT DAY. HMS CONQUEROR HAD NOT THEN RECEIVED THE ORDER CHANGING THE RULES OF ENGAGEMENT.THE LIMITATIONS IN COMMUNICATIONS WITH OUR SUBMARINES OPERATING IN THE FAR SOUTH ATLANTIC MEANT THAT SUBMARINE OPERATIONS THERE COULD NOT BE MONITORED AND CONTROLLED HOUR BY HOUR. IT WAS NOT UNTIL AFTER 5 PM THAT HMS CONQUEROR REPORTED THAT SHE HAD RECEIVED AND UNDERSTOOD THE NEW ORDER AND INTENDED TO ATTACK. THE BELGRANO WAS ATTACKED JUST BEFORE 8 PM.


11 CONQUEROR'S REPORT ON THE BELGRANO'S POSITION WAS RECEIVED BY NORTHWOOD AT 3.AO PB AND BADE KNOWN TO SENIOR NAVAL OFFICERS THERE AND AT THE HINISTRY OF DEFENCE LATER THAT AFTERNOON. THE REPORT SHOWED THAT THE BELGRANO HAD REVERSED COURSE. BUT SHE COULD HAVE ALTERED COURSE AGAIN‘AND CLOSED ON ELEBENTS OF THE TASK FORCE,ACTING IN CONCERT WITH THE CARRIER TO THE NORTH. IN THE LIGHT OF THE CONTINUED THREAT POSED BY ARGENTINE NAVAL FORCES AGAINST THE TASK FORCE, THE PRECISE POSITION AND COURSE OF THE BELGRANO AT THAT TINE WERE IRRELEVANT. FOR THIS REASON, THE REPORT WAS NOT BADE KNOWN TO BINISTERS AT THE TINE.

12. NO EVIDENCE HAS AT ANY TIBE BECOBE AVAILABLE TO THE GOVERNMENT WHICH WOULD BAKE BINISTERS CHANGE THE JUDGEBENT THEY REACHED ON 2ND BAY THAT THE BELGRANO POSED A THREAT TO THE TASK FORCE. IN THE PANORABA INTERVIEW WHICH IS REFERRED TO EARLIER, ADNIRAL LOBBARDO STATED THAT THE DtCISION TO SINK THE ARGENTINE CRUISER HAD BEEN TACTICALLY SOUND,AND ONE WHICH HE TOO WOULD HAVE TAKEN HAD HE BEEN IN BRITAIN'S POSITION. IT IS, OF COURSE, THE CASE THAT AFTER THE SINKING OF THE BELGRANO BAJOR ARGENTINE WARSHIPS REMAINED WITHIN 12 BILES OF THE ARGENTINE COAST AND TOOK NO FURTHER PART IN THE CAMPAIGN.

13. AS TO SUBSEQUENT OPERATIONS BY HMS CONQUEROR, IMMEDIATELY AFTER THE ATTACK UPON THE BELGRANO CONQUEROR HERSELF CAME UNDER ATTACK FROM THE ARGENTINE ESCORTING DESTROYERS AND, TO EVADE THIS, MOVED AWAY FROM THE AREA. AS HER CONTINUING ROLE WAS TO PROTECT THE TASK FORCE FROM THE THREAT POSED BY ARGENTINE WARSHIPS, SHE SUBSEQUENTLY PATROLLED TO THE NORTH AND WEST OF THE AREA WHERE THE BELGRANO HAD BEEN SUNK., WHEN ON 4TH BAY CONQUEROR SIGNALLED THAT SHE WAS RETURNING TO THAT AREA, SHE WAS ORDERED NOT TO ATTACK WARSHIPS ENGAGED IN RESCUING SURVIVORS FROM THE BELGRANO.

14 ATTENTION HAS BEEN FOCUSSED ON INACCURACIES IN THE STATEMENT MADE BY THE THEN DEFENCE SECRETARY, MR. NOTT, IN THE HOUSE OF COMMONS ON 4 TH MAY. IT SHOULD BE BORNE IN MIND THAT THIS STATEMENT HAD TO BE PREPARED IN FAST-MOVING AND SOMETIMES CONFUSED CIRCUMSTANCES WHILE MINISTERS WERE PREOCCUPIED WITH CONTINUING THREATS TO THE TASK FORCE. IT WAS EXPLAINED IN THE LETTER TOMR. DEN2IL DAVIES WHY IT WAS THEN POSSIBLE TO CORRECT EARLIER STATEMENTS WHICH WERE MADE IN GOOD FAITH AND TO GIVE FURTHER INFORMATION ABOUT THE CONQUEROR'S OPERATION. IT WOULD HAVE BEEN INAPPROPRIATE TO HAVE GIVEN DETAILS AT THE TIME ABOUT THE CIRCUMSTANCES IN WHICH CONQUEROR DETECTED AND TRACKED THE BELGRANO AND’ OTHER ASPECTS OF THE ENGAGEMENT SINCE THESE COULD WELL HAVE PROVIDED INFORMATION VALUABLE TO THE ARGENTINE NAVY.

15 THE NEED TO DO EVERYTHING WE COULD TO PROTECT THE LIVES OF SOME 10,000 BRITISH PERSONNEL - SERVICE AND CIVILIAN THEN IN THE TASK FORCE AND AT RISK FROM THE ARGENTINE NAVY - WAS THE SOLE REASON FOR THE ATTACK ON THE BELGRANO. NO OTHER CONSIDERATION ENTERED THE CALCULATIONS OF THE MINISTERS CONCERNED, AND IN PARTICULAR THERE WAS NO QUESTION OF TAKING THE ACTION IN ORDER TO UNDERMINE PEACE PROPOSALS PUT FORWARD BY THE PRESIDENT OF PERU, ABOUT WHICH BINISTERS IN LONDON HAD NO KNOWLEDGE AT THE TIME. AS HAS BEEN FREQUENTLY MADE CLEAR THE FIRST INDICATIONS OF THESE PROPOSALS DID NOT REACH LONDON FROM WASHINGTON UNTIL 11.15 PM LONDON TIME ON 2ND MAY - OVER THREE HOURS AFTER THE ATTACK ON THE BELGRANO - AND FROM LIMA UNTIL 2AM LONDON TIME ON 3RD MAY


16. DIPLOMATIC ACTION WAS, HOWEVER, ALSO PURSUED VIGOROUSLY. EVERY ETFORT WAS MADE TO SECURE BY DIPLOMATIC MEANS THE OBJECTIVE OF THE WITHDRAWAL OF THE ARGENTINE FORCES. AS THE PRIME MINISTER SAID IN THE HOUSE OF COMMONS ON 29TH APRIL 1982, IT WAS THE BRITISH GOVERNMENT'S EARNEST HOPE THAT THIS OBJECTIVE COULD BE ACHIEVED BY A NEGOTIATED SETTLEMENT. BUT BY 29TH APRIL, THE INITIATIVE OF THE US SECRETARY OF STATE, MR HAIG, HAD FOUNDERED ON ARGENTINE OBDURACY. ON 20TH APRIL, HE ANNOUNCED THAT THE UNITED STATES GOVERNMENT HAD HAD REASON TO HOPE THAT THE UNITED KINGDOM WOULD CONSIDER A SETTLEMENT ON THE LINES OF THE SECOND SET OF PROPOSALS FORMULATED BY THE US GOVERNMENT., BUT THE ARGENTINE GOVERNMENT HAD INFORMEO THE AMERICANS ON 29TH APRIL THAT THEY COULD NOT ACCEPT IT. AS GENERAL GALTIERI LATER EXPLICITLY ADMITTED IN AN INTERVIEW WITH AN ARGENTINE NEWSPAPER, ARGENTINE DOMESTIC POLITICAL OPINION MADE IT IMPOSSIBLE FOR THE JUNTA TO AGREE TO A SOLUTION THAT WOULD ENTAIL THE WITHDRAWAL OF ARGENTINE FORCES. THE BRITISH AUTHORITIES BY CONTRAST, CONTINUED THE SEARCH FOR A NEGOTIATED SETTLEMENT UNTIL 17TH MAY

17. THE MEASURES TAKEN IN LATE APRIL AND EARLY MAY 1982 WERE DESIGNED CLEARLY AND EXCLUSIVELY TO SAFEGUARD THE LIVES OF THOSE SERVING WITH OUR FORCES, BY RESPONDING TO THE THREAT POSED TO OUR SHIPS IN ORDER TO ENSURE, IN PARTICULAR, THE SAFETY OF OUR TWO AIRCRAFT CARRIERS ON WHICH THE PROTECTION OF THE TASK FORCE ULTIMATELY DEPENDED. THERE WAS NO QUESTION OF ANY ATTEMPT TO DESTROY THE PROSPECT FOR A NEGOTIATED SETTLEMENT.

ENDS VS 083/84


FALKLAND/MALVINAS ISLANDSUNITED KINGDOM - FIFTH REPORT FROM THE FOREIGN AFFAIRS

COMMITTEE/ HOUSE OF COMMONS, SESSION 1983/84.

THE FOREIGN AFFAIRS COMMITTEE lxi

Main Conclusions and Recommendations

179. Our main conclusions and recommendations are as follows:

United Kingdom and Argentine claims to the Falkland Islands

(i) The historical and legal evidence demonstrates such areas of uncertainty that we are unable to reach a categorical conclusion on the legal validity of the historical claims to the Falkland Islands of either Argentina or the United Kingdom (paragraph 22).

(ii) We believe, however, that much of the historical argument— although vital to an understanding of the tenacity with which the rival sovereignty claims are espoused in both Argentina and the United Kingdom—has been rendered less relevant by Argentina’s illegal resort to arms in April 1982 (paragraph 22).

(lii) Whatever the strength of Argentina’s claims to the Falklands prior to their invasion, we have no doubt that those claims have been seriously weakened by Argentina’s resort to arms. Equally, whatever the previous uncertainties about the United Kingdom’s legal claims to sovereignty, the invasion and war have greatly reinforced the moral and political force of HM Government’s commitment to protect the interests and rights of the population of the Falklands (paragraph 46).

(iv) We have concluded that the claims advanced by Argentina in respect of the Dependencies of South Georgia and the South Sandwich Islands are without legal foundation (paragraph 23).

HM Government’s attitude to negotiations with Argentina

(v) HM Government’s opposition to any talks with Argentina about the sovereignty of the Falkland Islands and Dependencies, although undoubtedly making progess on other matters more difficult, is no doubt prudent in the present situation, when direct bilateral talks towards the restoration of normal economic and diplomatic relations have not yet been joined, and Argentina has not formally declared an end to the state of hostilities (paragraph 55).

(vi) In the light of the United Kingdom’s unavoidable obligations to the Falkland Islanders, the desire merely to “do a deal” with Argentina cannot be regarded as the mam inspiration of British policy, however high the cost to the United Kingdom of the present situation (paragraph 59).

(vii) The extent to which the United Kingdom Government should feel encouraged to strike a deal during what amounts to Sr Alfonsin’s honeymoon period depends very much on the nature of the deal likely to be struck. If it were to be one dependent on purely Argentine guarantees for the Falkland Islanders, the question inevitably arises as to how far the word of Sr Alfonsin’s Government can be regarded as an Argentine bond. Similarly, to strike a deal in the hope that it would reinforce the stability of the democratic regime in Buenos Aires would be an extremely risky gamble, since many issues other than the Falklands could contribute to that regime's collapse (paragraph 73).


lxii FIFTH REPORT FROM * •

Argentine attitudes towards negotiations with the United Kingdom

(viii) It is clear that when referring to negotiations on sovereignty, the new Argentine Government is pursuing a policy essentially no different from that of its predecessors: that such negotiations, once begun, must lead eventually and inevitably to the relinquishment of the United Kingdom’s claim to, and administration of, the Fal-

; kiands (paragraph 69).

, Prospects for progress towards a settlement

(ix) In view of the intensity of feelings in Argentina, Britain and the’ Falklands about their rival views of the sovereignty issue, the

emotions generated by the war, and the extent of the United Kingdom Government’s commitments to the present generation of Falkland Islanders, the prospects for an early settlement of the sovereignty dispute itself are remote (paragraph 85).

(x) All our evidence has reinforced the wisdom of the general approach. now being adopted by F1M Government, that progress should be

made towards "re-establishing practical and sensible arrangements for relations between the two countries”. If, however, Argentine insistence on the inclusion of the sovereignty issue on the agenda of future talks is maintained, progress on other fronts is likely to be frustrated. Moreover, Argentina will assume that her position, and her hope of recovering the Islands, will be weakened by any arrangements which make life easier for the Islanders and reduce the burden which they impose on British revenues, and it is clearly this factor which induces the Argentine Government to see a link between the issue of sovereignty and relations between the two countries in other fields (paragraph 86).

• (xi) There is undoubted need for politicians and the public, particularlyin the United Kingdom and the Falklands, to recognise that the

1 present situation, although understandable in the short term, canonly offer an uncertain future for the Islands in the long term, and that some kind of accommodation with Argentina is not only

; inevitable, in view' of the cost of the present policy to the UnitedKingdom, but also desirable if the Falklands are to have any prospect of long-term economic prosperity and political stability

' (paragraph 94).

; (xii) Although we do not believe that the United Kingdom Government1 should now agree to the inclusion of the "sovereignty issue’’, asj presently defined by Argentina, on the agenda for talks in the imme-j diate future, they should nonetheless be willing to discuss the means: by which progress can be made to try to find a negotiated settlementj w ith Argentina as requested by the United Nations (paragraph 96).

\ (xiii) The United Kingdom Government could usefully adopt a morej positive tone in its proposals for means of normalising relationsI between the two countries and should publicly offer specific incen-j tives to Argentina to encourage greater flexibility on their partj (paragraph 97).

[19.85] AUSTRALIAN INTERNATIONAL LAW NEWS 302

THE FOREIGN AFFAIRS COMMITTEE lxiii

(xiv) HM Government should now announce that it intends to lift the Protection Zone around the Falklands as soon as-a formal declaration of the end of hostilities is communicated by the Argentine Government through the Protecting Powers (paragraph 97).

(xv) HM Government should now give a public undertaking that no further fortification of the Falkland Islands is being contemplated and that the size of the army, air force and naval presence in and around the Islands will be progressively reduced; such an undertaking would need, however, to be accompanied by a proviso that evidence of renewed hostile Argentine intentions towards the Islands would render the undertaking void (paragraph 98).

(xvi) HM Government should consider making a public announcement of the non-sovereignty issues which it is prepared to discuss with Argentina (and possibly other neighbouring Latin American states) including possibly the exploitation and regulation of the hydrocarbon and fisheries resources in the area of the Falklands and Dependencies, without predudice to the territorial claims of the countries concerned in the area (paragraph 99).

(xvii) We do not believe that a British offer to go to legal arbitration over the sovereignty dispute would amount to much more than a gesture which would not in practice hasten the resolution of what is, essentially, a political rather than a legal dispute (paragraph 102).

(xviii) Assuming that agreement is reached on proposals for changes in the internal Constitution of the Falkland Islands, HM Government should consider extending an invitation to the United Nations Decolonisation Committee to visit the Falklands (paragraph 104).

(xix) If HM Government feels unable to pursue the idea of unilateral declarations recommended above (sub-paragraphs xiv-xvi), the possibility should be explored of the two governments making parallel moves forward towards the relaxation of military tension in the South Atlantic. It would seem to us more profitable to pursue the possibility of simultaneous declarations which, on each side, would be conditional on the observance by the other side of the accompanying undertakings (paragraph 108).

(xx) It is very much to be regretted that the initial failure of bilateral talks between the two countries may further delay real progress towards the normalisation of commercial and diplomatic relations (paragraph 109).

(xxi) A solution on the lines of leaseback cannot be easily contemplated by the United Kingdom at present in view of the understandable mistrust of Argentina amongst the Falklands population and uncertainties about the stability of the new democratic regime in Argentina and hence of the credence which a United Kingdom Government could give to any undertakings entered into by it. The most significant problem with such a solution is that it would, from the moment of agreement, provide recognition of Argentine rights which could not subsequently be withdrawn. Despite this, the passage of time may well make possible a reopening of discussions along these lines (paragraph 112).


lxiv FIFTH REPORT FROM

(xxii) In the long run a solution acceptable to the Falklands’ immediate neighbours is essential to the Islanders themselves: neither independence nor incorporation in the United Kingdom could conceivably achieve that objective (paragraph 114).

The economic and political development of the Islands

(xxiii) It is of vital importance that the United Kingdom should not merely rely on Article 73 of the UN Charter as a justification for its continued administration of the Falkland Islands, but should pursue, and be seen to be pursuing, the objectives set out in that Article, particularly with regard to the promotion of the economic and social advancement of the territory and the development of self-government within the territory (paragraph 116).

Land reform

(xxiv) Although we accept that a gradual approach to land reform is probably both correct and inevitable (paragraph 136), we believe that there is little evidence that even this more limited approach is being pursued with the vigour required to tackle the undoubtedly serious situation described by Lord Shackleton in his 1976 and 1982 Reports and confirmed during our predecessors’ visit to the Islands in 1983 (paragraph 139).

Development and diversification

(xxv) The greatest emphasis in the Falklands’ development programme should be placed on means of diversifying activities within the framework of the present agricultural economy and with the active participation of the present population of the Islands (paragraph 142).

(xxvi) Although there is undoubtedly a strong case for the regulation and licensing of fishing in the area of the Falklands and Dependencies, we are not convinced that the establishment of an Exclusive Fishing Zone can be justified, in view of the considerable political and practical problems to be overcome (paragraphs 145-6).

(xxvii) The Falkland Islands Government, rather than merely looking forward to the revenue which might accrue to them from the establishment of a Fishing Zone, should look more positively at the possibility of establishing an indigenous fishing fleet and at the opportunities created by the presence of trawler fleets in the area for the provision of commercial services for those fleets (paragraph 147).

(xxviii) HM Government should pursue as a matter of priority the negotiation of emergency landing facilities at neighbouring airports to facilitate the licensing of civilian air services in and out of Mount Pleasant airport (paragraph 149).

(xxix) The internal transport needs of the Falkland Islands should be examined in detail by the Falkland Islands Government (paragraph 150),

(xxx) We echo Lord Shackleton’s proposals in connection with the utilisation of wind generators, particularly in the Camp settlements (paragraph 151).


THE FOREIGN AFFAIRS COMMITTEE lxv

Internal constitutional reform

(xxxi) The Legislative Council’s proposals for internal constitutional reform are small, but significant, steps towards greater control by the Islanders over their internal affairs; we urge HM Government to expedite the remaining formalities before their acceptance, and recommend that the House should raise no objections to these proposals when the appropriate Order in Council is laid (paragraph 162).

The Falkland Islands Development Corporation

(xxxii) As an urgent response to an allegedly critical situation, it is difficult to imagine any enterprise being proceeded with at a more funereal pace; this sluggishness has undoubtedly given rise to understandable, and justified, resentment in the Falkland Islands (paragraph167).

(xxxiii) The role of the Development Corporation is likely to be less significant than Lord Shackleton intended (paragraph 169).

(xxxiv) The Falkland Islands Government and HM Government will need carefully to monitor the development of relations between the FIDC and the Legislative and Executive Councils in order to ensure that the reforms in local democracy recommended above (subparagraph xxxi) are not undermined by the independent operations of the Corporation (paragraph 170).

(xxxv) The potential for misunderstanding, administrative complexity and policy incompatibility resulting from the establishment of the FIDC as an additional centre of power in the tiny Falklands community is great (paragraph 171).

HM Government s stewardship in the Falklands

(xxxvi) It is not our view that, after the initial problems immediately following the South Atlantic conflict, the ODA or other UK Government agencies have been remiss in carrying out their duties in the Falkland Islands. We do, however, question whether Ministers and senior officials have sought to implement the rehabilitation and development programmes espoused by them with the vigour and enthusiasm consistent with the seriousness of the Islands’ economic situation, or with the commitment which should have been expected from ministerial statements to the House (paragraph 175).

(xxxvii) If a viable economy for the Falklands is to be put in place before the inevitable withdrawal of most of the garrison, time is now beginning to run out (paragraph 177).

(xxxviii) A final judgement on the quality of HM Government’s stewardship must await their reaction to our observations and the fruits of policies in train or those yet to be adopted (paragraph 178).


TREATY OF PEACE AND FRIENDSHIP BETWEEN CHILE AND ’'PGENTINE SIGNED IN ROME ON 18 OCTOBER 1984*

Tratado de paz y a mis tadEn liombre

dc Dios

Todopodcroso

1! Gobicrno Jo la Rcpubiica dc Chile y c! Gobicrno dc la Rcpubiica Argentina.

Recordundo que cl ocho do cncro dc mil noveoientos setetua y nueve solicitaron a la Santa Sede que actuary cotno Mediador en el dileren- do suscitado en la zona uu al, eon la fiualidad de guiarlos en his nego- ciacioncs y asistirlos en la busqueda de una solueion; y que requirieron su valiosa ayuda para fijar una linca de deiiniitacidn, que detenninaia las respectivas jurisdie, 'ones al Oriente y a! Oeeidente de esa ltnea, a partir del rermino de !a delimitaeidu cxi.'icntc:

CnioerK idos que e> debei inehidi hie dc ambos Gobhrnos dar expre- .'ion a las a'piraeiuncs de pa/. Jc mis Pueblos;

TenienJo preset! tc cl Tratado de I.(mites de 1881, fundaniento incon- movible de las relaeiones emre la Rcpubiica Argentina y la Rcpubiica de Chile, y sus iustrumento:- complc- mentarios y dcclaratorios:

Reiterando la obligacion de solucionar siempre lodas sus conhover- sias per medium pacificos y de no recurrir jamas a la amenaza o al uso de la fuerza en sus relaeiones mutuus;

Animados del propdsito de inten- sificur la cowporacidn econoniica y la iniegraeidn lisica de sits respecti\os pat'ses;

Tenieudo opeeiulmcnte en consi- deracidn la ’Propucsm del Media-

Paz yARTICULO V

La* Allas Partes cuntratuntcs. respondiendo a los intcrcses lunda- mentales de sus Pueblos, reiteran so- lemnemente su compromiso de pre- servar, refurzar y desarrollar sus vi'nculos de paz inalterable y amistad perpetua.

Las Paries celebranin reuniones periodicas de eonsulta cn las cuales examinaraa cspeciaimente todo he- elio o siaiacidn que sea susceptible de alterar la armonia entre cllas, procuraran evitar que utia discrepancy de sus puntos de vista originc una conlroversia y sugeriran o adop- taran medidus concretas tendieutes a mantener y afianzar las buenas relaeiones entre ambos pai'ses.

ARTICULO T

Las Partes confirman su obligation de abstenerse de recurrir dit cola o indireetamente a toda forma de amenaza o uso de la fuerza y de adoptar toda otra medida que pueda alterar la armoma en cuulquier sector de sus relaeiones mutuas.

Confirman asimismo su obligaeidti de solucionar siempre y exclusiva-

*(This treaty was negotiated under the meditation of the Holy See. This text in Spanish was provided by His Excellency Archbishop Luigi Babarito, Apostolic Pronuncio, Canberra. It is hoped to provide an English version at a later date. Reference may be made to the comment in (1984) Aus. I.L. News 208).

dv»r, sugereneias y eonsejo.-". dc do- ee de dicicmbre de mil novecicnto> o.T.etua;

Tcslimoniando, cn nomine dc st’s Pueblos, los agt'adeeimientos a Su Santidad el Papa Juan Pablo 11 por sus eselarecidos esfuerzos nara !o- grar la solution del diferendo y fort ileecr la amistad y el entendimiento entre ambas Naciones:

Han rcsuelto celebrar el siguiente Tratado, que conslituye una transaction:

amistadmente por medios pacificos todas Ins controvcrsias, de eualqttier naturale- :'.i, que por cualquier causa havau surgido o puedan surgir entre cllas. en conformidad con las dispo-icio- ncs 'iguientes.

ARTICULO 3°

Si surgiere una controversy, las Partes adoptaian las medidas adc- cuadas para mantener las mejores condieiones generales de eonviveneia en todos los ambitos de sus relucio- ncs y para evitar que la contro\ersiu -c agrave o se prolong-ue.

ARTICULO 4’

Las Partes se esforzaran por lo- grai la solucion de toda coot rove rsia entre cllas mediaute negociaciones directas, realizadas de bttena fe y eon cspititu de cvopcrar’c'n.

Si. a juicio de ambas Paries o de una de cllas, las negociaciones directas no alcanzaren un resithado satis- factorio, eualquiera de las Partes podra invitar a la otra a someter la controversia a un medio de arreglo pacjfieo elegido dc comun aeuerdo.

ARTICULO 5 !" ;Jin cast* de que la> Patter, dmitro

dc! plazo de cuatro meses a partir de la invitacidu a que se reliete el ar- lieulo anterior, no se pusieren de aeuerdo sob re otra medio de arreglo paei'fico > sob re el pla/o y demas modalidadcs de su aplicacion. o que obtenido dieho aeuerdo la solution no se alean/are por cualquier causa, se aplicara e! procedimiento de con filiation que se estipula en e! Cap;- i lulo 1 del Ancxo n. 1. v

ARTICULO 6 |. !

Si ambas Partes o ulguna dc cllas j no hubieren aceptado los termino-v j de arreglo propticstos por la Comi- I .'idrt de Conciliacidn dentro del pla |

/.o lijail.i por su Ibe.M'Jcutc. o m prv>eeiHtniento de eoneiliaeion lr.ua rate p-. r eu-dquier cau.--a, ambas Par tes o cualqulv'io de eiia> podra someter la eon trovers; a al procedimiento arbitial esiablceido en el Capitulo 11 del Anexo n. 1.

LI mi'ino procedimirnio so apii- eara eu.mdo la-, 1’aries, en conformidad del articulo -i", elijtin el arbiitaje con to medio de so! u cion de la controversia, a me nos que cllas couwn- p.m i>tras reglas.

No pv.nlrtin rcno\ar>e en \irtud del presente articulo las cuestiones ijuc liayau sido objeto dc arregdos dcfuniivuN emre laj Partes. L'n talcs easos. cl arbitraje se limitara cxelusi- \amente a las cuestiones que se sus- ci ten sob re ia valide/, imcrpretacion y cunqdimLmo vie dicbo' arn-pm ..

DeUinitacion man limaARTICULO T ;

LI limiie entre las respectivas so- | berantas sobre el mar, tuclo v sub- j suclo de Ia Rcpubiica Argentina y I de Ia Rcpubiica de Chile en cl Mar ! de la Zona Austral a partir del ter- i titino de la delimitacion ccLtcnlc c-i I

•cl Canal Beagle, csto es, cl punio J fijauo por las coordenada-. 5:3' j 07 ,3 dc latitad Sur y 66 25 ,0 vie ; iongitud Oeste, sera hi Imeu tpie una j

j los puntos que a cuniinuaciou ^e jj indiean; i

j A partir del pumo fijado por la> i | coordenadus 55" 07’,3 dc latilud i

iniciti el Sudeste i>or una !:uea j ioxodrdmiea lia^ta un punio nit uu- I •do entre las costas de la Isla t Nueva y de la Isla Grande de j Tierra del Fuego, cuyas coordena- 1

aur y 6b 25',0 de Iongitud Oeste ipunto A', Ia delimitaeidn seeuir.i

das mm 55' 1 r,0 dc latitud Sur \ 6bJ or,7 de hmgilad Oeste (pm. Ivj B); desde alb continuum c;i dii'eeeidn Suvlesie en un dngub de cuatonta y citico grados, inedidu en dieho punio B. v se prolongara basta cl punio vmyas coordenadas son 55“ 22’g) de latitud Sur y 65 •I3'.6 de Iongitud Oeste (panto C); scg.uira direetamentc hacta . 1 Sur por dieho meridiuno hasta el paralclo 56 22’,8 de latitud Sur (pumo 13,0 dc.de tilii continuara jK.r cse paralclo sltuado vein;:- cuatro miilas marinas al Sur dd exttemo mas austral de ia Isla Homos, haciu cl Oeste iia-ta mi intvTaeceidn con el mcridtatio cm- rre.-pondienle al pun to mas iuo- tial de dicln Isla Hornes en !a- cocrdcnadas 56' 22’,8 de latitud Stir y 67" 16’,0 de Iongitud Oesic (punto F); desde alii el Inn . continuara liacia cl Sur ha>'-i .'

panto cuyas coordenadas son 58“2I’,1 de latitud Sur y 67' 16’,0 deIongitud Oeste (punio 1).La 11nea de delimitation mantima

anteriormente dcscrita queda tvpre- sentada cn la Cana n. I anexa.

Las Zotias Eoonomieas Excited vas de la Repiildica Argentina y dc la Rcpubiica de Chile se cxienderun respectivamente ai Cudentc y al Oc- cidente del limite asi deseriio.

Al Sur del pun to final del ! finite (punio F), la Zona Econdtnica Exclusiva de la Rcpubiica dc Chile se prolongara. hasta la dislancia permi- tida por el dcreeho internal" >1, al Oocidcnte del mcridiano 6 7" I6’,0 de Iongitud Oeste, deslindando al Oriente con el alta mar.

ARTICULO 8°

Las Partes acuerdan que en el espacio comprendido entre el Cabo de Hornos y el punto m'is oriental de la isla de los Estados, los cfectos jurfdicos del mar territorial quedan limitados. cn sus relaeiones mutuas, a una frenja de tres millas marinas medidus desde sus respeetivas Ifneas de base.

En el espacio indicado en cl inciso anterior, cada Parte podra invo- car frente a tcrceros Estados la an- chura maxima de mar territorial que le perivtita el derecho internaeional.

ARTICULO 9°

Las paries acuerdan denominar “Mar de la Zona Austral” el espacio maritiiuo que ha sido objeto dc delimitation cn los dos artfculos anteriores.

ARTICULO 10°

La Rcpubiica Argentina y la Republica de Chile acuerdan que cn el termino oriental del Estrccho de Ma- gallatves, deterniitiado por Puma Dungcaess en cl Norte y Cabo del Espirita Santo en cl Sur, cl limite entre sus respeetivas sober.infas sera la linea recta que una cl "1 liio Ex- Bali 'a Pun la Duitgcncss'’, siluadj c:t el extreme de dieho aceidente ;vo- grat'ieo, y el “Ilito I Cabo del Ecpui- i'.i Santo” en Tierra del I uego.

L.a li'nea de delimitaeion anteriormente descrita queda lvpresentada cn la Carta n. 11 anexa.

La soberanfa de la Rcpubiica Argentina y la soberanfa de la Republics de Chile sob re c! mar, suelo y subsuelo se cxten leran. respeefiva- luente, al Oriente y al Occidente de dieho b'mite.

La delimitacidn nqttf convcnida en nada altera lo cslablecido en cl Tratado de Lfmites de 1881, de aeuerdo con cl cual cl Estrccho de Magallancs csta neutrdizado a per- pc tuidad y nsegurada su lib re nave- gacidn para las banderas de todas las nacioncs cn los termines que se- fiula su articulo V.

La Rcpubiica Argentina se obliga a mantencr, en cualquier licnipo y circunstancias, cl dcrccho de los buques de todas las banderas a navegar en forma expedita y sin obstacuios a traces de sus aguas jurisdieeionnles hacia y desde cl Estrccho dc Ma- ga’lanes.

ARTICULO 11°I.as partes se rccocucen mutun-

mente las Ifneas de base rcctas que ban trazado en sus respectivos territories.

Cooperacion economicaC integration fisica

" ARTICULO 12“Las Partes se compromelen a no

misidn Binacional de caracter permanente con el objeto de intcnsificar la cooperacidn econdmica y la ime- gracidn ffrica. La Comisidn Binacto- nal estara encargada de promover y desarrolhtr iniciativas, entre otros, sobre los siguientes temas: sistema global de enlaces terrestres, habilita- cidn mutua de puertos y zonas fran- cas, transportc lerrestre, acronavcga- cidn, intcrconexioncs clcctrieas y tc- lecomunicacioncs, explotacidn de rc- cursos naturales, protcccidn del medio ambiente y complcmcntacidn turfs tica.

Dentro dc los scis mcscs de la entrada en vigor del presente Tratado, las Partes constituiran la Comisidn Binacional y cstableccran su re- glamento.

ARTICULO 13°La Rcpubiica Je Chile, en ejerci-

cio de sus derechos soberanos, olor- ga a la Rcpubiica Argentina las facilidades de navegacion que se especi- fican en los artfculos T al 9° del Ancxo n. 2.

La Rcpubiica de Chile dcclara que los buques de tcrccras banderas podran navegar sin obstacuios por las rutas indicadas en los artfculos 1° v 8° del Ancxo n. 2, sujelandosc a la reglamentacidn ehilcna perfincntc.

Ambas Partes acuerdan cl regimen de Navcgacidn, Practieaje y Pi* lotajc cn cl Canal Beagle que sc espeeifica en cl referido Ancxo n. 2, artfculos 11° al 16°,

Las cslipulaeiones sobre navcgacidn cn la zona austral contcnidas en cste Tratado sustituyen cualquier aeuerdo anterior sobre la materia que existicre entre las Paries.

Cldusulas finalesARTICULO 14°

Las Partes declaran selemnemente que el presente Tratado constituye la solucidn completa y definitiva dc las cuestiones a que el se refiere.

Los lfmites senalados en este Tratado constituyen un conffn definitivo e inoonmovible entre las soberanfas de la Republica Argentina y de la Republica de Chile.

Las Partes se comprometen a no presentar reivindicaciones ni inter- pretaciones que sea incompatiblcs con lo establecido cn cste Tratado.

ARTICULO 15°

Serdn aplicables en el territorio ant^rtico los artfculos 1* al 6’ del presente Tratado. Las dem^s disposi- ciones no afectariin de modo alguno

ni podran ser inferpretadas cn cl sentido de que puedan afectar, directa o indirectamente, la soberanfa, los derechos, las posiciones jurfdicas de las Partes, o las delimitaciones en la Aniartida o en sus espacios marfti- mos adyacentcs, comprendiendo el suelo y cl subsuelo.

ARTICULO 16°

Acogiendo cl generoso ofrccimien- to del Santo Padre, las Al'ns Partes Contratantcs colocan ti presente Tratado bajo el amparo moral de la Santa Sede.

ARTICULO 17°Forman parte integrante del pre

sente Tratado:a) el Anexo n. 1 sobre proce-

dimientos de Conciliacidn y Arbi-

trajc, que consta tie 41 artfculos;b) cl Ancxo n. 2 relative a

Navcgacidn, que consta tie 16 artfculos; y

c) las Cartas referie’a ; en h artfculos T y 10" del Tratado y cn los artfculos i°, 81 y 11“ de! Anexo n 2.

Las rclerencias al presente Trafu- do se entlemlen tamhien liccbas a sus respcctivos Ancxo? y Cartas.

ARTICULO NCEi presente Tratado cut.i mij, • >

ratification y entrura cn \.:.or cn ti. fccha del eanje tie L<s im.lrume; .> - de ivoificacidi;.

ARTICULO 19'

EI presente Tratado svtii regi -,;ra- du tie conformidad con cl AiticuL 102 de la Carta dc las Nation-.-, Cnidas.

ANEXO n. 1CAPITULO I

Procedimiento de eonciliacidn previslo en el Articulo o'

del Tratado de paz y amistadARTICULO 1°

Dentro del plazo de scis mcscs contados desde la entrada cn vigor del presente Tratado las Partes constituiran una Comisidn Penna- nenle de Ccnciliacidn argentine- cliilena, en adelantc “la Comisidn’''.

La Comisidn se compondui tie tres miembros. Cada una de las Partes nombiara un miembro, c! cual podra ser clegido entre sus rationales. El tercer miembro, quicn actuat'd eomo Presidente de la Comisidn, sera clegido por ambas Partes entre nneionales dc ierocroa Estados que no tengan su resident';;) habitual en el territorio tie nlguna de ellas ni se cncuentren a su ser- vkio.

Los miembros serai: nombratlos por un plazo de tres arms y podra;) szr r-.'vK'iutlos. C’-ula una de Lit Partes podia proccder cn cualquier tiempo al reemplazo del miembro nombrado por clla. El tercer miembro podra ser recmplazado durante su mandato por aeuerdo emre las Partes.

Las vacantcs produeidas por fa- llecimicnto o por cualquier otra ra- zdn sc provecran cn la misma forma quo los nombramiontos inicialcs, dentro dc un plazo no supuim a Ires mcscs.

Si cl nombramiento del tercer miembro de la Comisidn no pudiere efectuarsc dentro de! plazo tie scis meses desde la entrada cn vigor dc cste Tratado o dentro del plazo dc trcj mcscs dc producida su varannu scgiin c! caso, cualquiera de las Partes pod;d solicitor a la Santa Scde que cfectiic la designation.

ARTICULO 2°

En la situation prevista cn cl artfculo V del Tratado de Paz y Amistad la eontroversia sera someli- da a la Comision por solicitud cscri- ta, ya sea conjunta o separada de las Partes, o tie una de ellas, dirigi- da al Prcsidcntc de la Comisidn. En la solicitud se indicara sumariamen te el objeto de la eontroversia.

Si la solicitud no fucre conjunta, la Parte recurrente notificura de in- mediato a la otra Parte.

Partes que no ha;.an dcMgardo Dc legado a que proccdan a u pronla dcsignacidn.

ARTICULO 4™

Somctida una cootrovvr-.ia 3 la Comisidn, y para el solo etc-.to dc aquella, las Partes podran dcoig.:;-ir, tie comuti aeuerdo, do- miembros mas que la integren. La pie-ideiieia de la Comisidn - ; .1 i. n I > ejer-cida por cl tercer miembro cmtuLur mente designado.

ARTICULO r/’

Si al tictnpo de someterse i troversia ;■ la Comis’.do tig;: lus miem’oos nombi Parle no csmvicre c de partie'par p'-cnamcmc en

pv.a* •.idle':')

ccdimL :;m de concilia, idm. e. a Porte dcb.-:;t -ustituiito a la nvivor l vedad al solo cfcclo de dieiia conci- E.K.idn.

A solicitud de cualquiera de Panes, o por props a ink move, ^1 Presidetue podra u ;u-er.i a ia otra que proccda a esa suet line ion.

Si el Presidente de ia Comiddn. no esatviere cn conditioner de par ticipar plenamcntc cn c! prceedl- miento de eonciliacidn. ho. Ihn.’cs debcian siulbuirlo dc inimii do, a la mayor brevedad, por otia persona m solo tiVcto de Lidia concilia cion. A falta de aeuerdo ca.dqumra Je his Paries podra pedir a hi Santa Seth quo efeetue ia tied..- nation.

ARTICULO 0W

Rceibida una solicilud, cl Pivra- dente fijara ci lugar y hi feelui dc la primcia reunion } eunvoca d a can a los micmbios de ia Comi Ion y a los Delegados de las Partes.

En la primera reunion la C- rnb sidn nombrara su Seen, tario, quim no podra ser national dc algunut- dc las Partes ni tener en cl territorio de ellas residencia permanen-e o en- contrarse a su servicio. Ei Secicti rio pertnanccera cn funeioncs m;en- tras dure hi eonciliacidn.

En la misma reunion !a Comisidn determinara el proccdimictro a que habra de ajustarse la couciliaciou. Salvo aeuerdo de las Paries, fa! pi c- ccdimiento sera contrad:korio.

ARTICULO

La solicitud o solicitudes cseritas por medio de las cualcs la con troversia se som-eta a la Comisidn ton- tendran, en la medida de lo porible, la designation de! Delegado o de los Delegados por quienes la Parte o las Partes de que cmanan las solicitudes scran representadas en ]a Comisidn.

Corresponded al Presidente de la Comisidn invitar a la Parte o a las

ARTICULO 7’

Las Partes cstaran reprecenta ms en la Comi.-idn por sus Delegados; podran,. ademus, hacer^e a si stir por consejeros y expertos nembrcdcs por cllas a e^tos ei cetos y solid tar !os testimonios que cc nsideraren eonvenientes.

La Comisidn tendra la factitad de solicilar cxplicacioncs a K 3 De1c- gados, consejeros y expertos de l ; Partes, asf como a las demas personas que estimare util.


ARTICULO 8°La comisidn se rcunir6 en el lu-

gar que las Partes acuerdcn y, a falta de aeuerdo, en cl lugar designado por su Presidente.

ARTICULO 9°La comisidn podra reeomendar a

las Partes medidas tcudientes a evitar que la controvert se agrave o que la eonciliacidn sc dtficulte.

ARTICULO 10°La Comisidn no podra scsionar

sin la presencia de todos sus miembros.

Salvo aeuerdo en contrario de las Partes todas las decisiones de la Comisidn se tomaran por mayorta de votos de sus miembros. Ln las actas respeetivas no se hara constar si las decisiones ban side tomadas por unanimidad o por mayon'a.

ARTICULO 11°Las Partes faeilitaran los trabajos

de la Comisidn y le procuraran, en la medida mas ampiia posible, todos los documentos o informaciones utiles. Asimismo, le permitiran que proceda en sus respectivos territo- rios a la citation y audiencia de testigos o peritos y a la practiea dc inspecciones oculares.

ARTICULO 12°Al finalizar el exarnen de la con-

trove rsi a la Comisidn se esforzara por definir los tdrminos de un arreglo susceptible de ser aceplado por ambas Partes. La Comisidn puede, a cste efecto, procedcr a intercambiar puntos de vista con los Delegados de las Paries, a quienes podrd oir conjunta o separadamentc.

Los tdrminos propuestos por la Comisidn sdlo revestiran el caracter de reeomendaciones sometidas a Ia consideration de las Partes para fa- cilitar un arreglo reciproeamcnle aceptable.

Los termincs de dieho arreglo seran comunicados, por escrito, por el Presidente a los Delegados de las Partes, a quienes invitard a ha- cerle saber, en el plazo que fije, si los Gobiernos respectivos aceptan o no el arreglo propuesto.

Al efectuar la comunicacidn ante- dicha el Presidente expondra perso- nalmente las razones que, en opi- nidn de la Comisidn, aconsejan a las Partes aceptar el arreglo.

Si la eontroversia versare exclusi- vamente sobre cuestiones de hecho, la Comisidn se limitara a la investi- gacidn de ellas y consignard sus conclusiones en un acta.

ARTICULO 13°Si anibas Partes aceptan el arre

glo propuesto por la Comisidn, se levantard un acta en que constard dieho arreglo, la cual sera firmada por el Presidente, el Secretario de la Comisidn y los Delegados. Una eopia del acta, firmada por el Presidente y el Secretario, sera enviada a cada una de las Partes.

ARTICULO 14°Si ambas Partes o una de ellas

no aceptan el arreglo propuesto y la Comisidn juzga superfluo tratar de obtener aeuerdo sobre tdrminos de arreglo diferentes, se levantard acta firmada por el Presidente y el Se- eretario, en la cual, sin reproducir los terminos del arreglo propuesto, se expresara que las Partes no pu- dieron ser conciliadas.

ARTICULO 15°Los trabajos de Ia Comisidn de-

berdn terminar en el plazo de seis meses contados desde el dfa en que la eontroversia haya sido sometida a su conocimiento, a menos que las Panes acuerden otra cosa.

ARTICULO 16°

Ninguna declaracidn o comunicacidn do los Delegados o de los miembros de la Comisidn sobre cl fondo de la eontroversia sera con- signada en las actas de sesiones, a menos que consientan en ello el De- legado o el miembro de quien ema- na. Por el contrario, scran anexados a las actas de sesiones los informes periclalcs esentos u orales y las actas rclativas a las inspecciones oculares y a las deelaraciones de testigos, a menos que la Comisidn deci- da otra cosa.

ARTICULO 17°

Se enviara copias autenticadas dc las actas de sesiones y de sus anc- xos a los Delegados de las Partes por intermedio del Secretario de la Comisidn. a menos que la Comisidn dccida otra cosa.

ARTICULO 18°

Los trabajos dc la Comisidn no scran publico? sino en virtud de una decision tetnada por la Comisidn con el asentimiento de ambas Partes.

ARTICULO 19°

Ninguna admisidn y proposition formulada durante el curso del pro- cedimicnto de eonciliacidn, sea por una de las Partes o por la Comisidn, podra ptejuzgar o afeetar, en manera alguna, los derechos o pro-

tensiones dc una u otra Parte cn caso que no pros pc rare cl procedimiento de conciliacidn. Ln igual forma, la aceptacidn por una Parle de un Proyecto dc arreglo formula- do por la* Comisidn no implienra, cn manera alguna, aceptar las consi- deraciones de hecho o de derccho en las eualcs podra. busame el anvglj.

ARTICULO 20°

Terminados los trabajos dc la Comisidn, las Partes consideruran si autcrizan la publicacidn total o par- cial dc la documentation relativa a ellos. La Comisidn podra dirigirles una recomcndacidn a cste efecto.

ARTICULO 21°

Durante los trabajos de la Comi- sidp, cada uno de sus miembros percibira una compensation pecu- nlaria euya cuantia se fijara de cotpun aeuerdo por las Partes, las cuales Ia sufragaran por mitadcs.

Cada una dc las Partes pagard sus propios gustos y la mitad de las expensas comuncs de la Comisidn.

ARTICULO 22°

Al termino de la conciliacidn, el Presidente de la Comisidn depositary toda la documcnlacidn relativa a ella en los archivos de la Santa Se- dc, manteniendosc el caracter reser- vado de dicha documentacidn, dentro de los limites indicados en los articulos IS" y 20° del presente anexo.

CAPITULO IIProcedimiento arbitral previsto en el articulo O' del Tratado

de paz y amistadARTICULO 23°

La Parte que intente recurrir al arbitraje lo hard saber a la otra por notification eserita. En la misma comunicacidn solicitara la constitucidn del Tribunal Arbitral, indicat'd su- mariumente cl objeto de la controversy, mencionara el nombre del arbilro clegido por ella para inte- grar el Tribunal e invitara a Ia otra Parte a cclebrar un compromise o aeuerdo arbitral.

La Parte requerida debera coope- rar en la constitucidn del Tribunal y cn la cclebracidn del compromise.

ARTICULO 24"Salvo aeuerdo en contrario de las

Partes, el Tribunal Arbitral se com- pondrd de cinco miembros designados a tftulo personal. Cada una de las Partes nombrara un miembro, que podra ser nacional suyo. Los otros tres miembros, uno de los cuales sera Presidente del Tribunal, seran elegidos de comun aeuerdo entre nacionalcs dc terceros Estados. Estos tres arbitros deberan ser de nacionalidad diferente, no tener resideneia habitual en el territorio de alguna de las Partes ni encon- tramc a su servicio.

ARTICULO 25°Si todos los miembros del T;T';-

nal Arbitral no estuvieren nombra- dos dentro del plazo de tres mcscs a contar de la rccepcion de la comunicacidn prevista cn el articulo 23“, cl nombramiento de los miembros que fallen sera hecho por el Gobiemo de la Confederacion Suiza a solicitud de cualquiera de las Partes.

El Presidente del Tribunal sera dcsignado de comun aeuerdo por las Partes dentro del plazo previsto en el inciso anterior. A falta de aeuerdo tal designation sera hecha por el Gobicrno de la Confederation Suiza a solicitud de cualquiera de las Partes.

Designados todos los miembros, cl Presidente los convocara a una sesidn a fin de declarar constituido e! Tribunal y adoptar los demds acucrdos que scan necesarios para su funcionamicnto. La sesion se celebrat'd cn el lugar, dfa y hora que cl Presidente sefinlc y en c!!a sera aplieable lo dispueslo cn cl articulo 54" del presente ancxo.

ARTICULO 26°Las vacantcs que puedan produ-

cii'se por muerte, renuncia o cual- quicr otra causa scran cubiertas cn la -siguientc forma:

Si Ia vacante fuera la dc un miembro del Tribunal nombrado por una sola de las Partes, dicha Parte la llenard a la brevedad posible y, cn todo caso, dentro del plazo de treinta dfas desde que la otra Parte la invite por escrito a hacerlo.

Si la vacante fuera la de uno de los miembros del Tribunal nombrado de comun aeuerdo, la vacante sc llenard dentro del plazo de sesenta dias desde que una de las Partes invite por escrito a la otra a hacerlo.

Si dentro de los plazos indicados cn los incisos anteriores no se hu- biesen llenado las vacantcs referi- das, cualquiera de las Partes podra solicitar al Gobierno de la Confederacion Suiza que proceda a hacerlo.

ARTICULO 27°En caso dc no Ucgarsc a cclcbrar

c! compromiso para someter la controversy al Tribunal Arbitral dentro del plazo de ties meses contados desde su constitucidn, cualquiera de las Partes podra some I eric Ia controversy por solicitud eserita.

ARTICULO 28°El Tribunal adoptara sus propias

rcglas de proeedimiento, sin perjui- cio de aquel'as que las Partes pu- dieren haber convcnido en el compromiso.

ARTICULO 29"El Tribunal Arbitral tendra facul-

tudes para interpretar cl compromiso y pronunciaise sobre su propia compctencia.

ARTICULO 30°Las Partes brindarun su colabora-

cion a la labor del Tribunal Arbitral y le procuraran todos los documentor, facilidadcs e informaciones utiles. Asimismo, 1c permitiran que proceda cn sus respectivos territo- rios, a la citation y audiencia de testigos o peritos y a la practiea de inspecciones oculares.

ARTICULO 31°El Tribunal Arbitral tendra Ia fa-

cultad de ordenar medidas provisio- nales tendientes a salvaguardar los derechos de las Partes.

ARTICULO 32°Cuando una dc las Paries cn la

eontroversia no comparezca ante cl Tribunal o se abstenga dc hacer la defensa de su caso, la otra Parte podra pedir al Tribunal que prosiga las actuaciones y dicte sentencia. La circunstanciu de que una de las Partes re encaentie ausentc o no comparezca, no sera obrtaculo pan llevar adclante las actuaciones ni para dietar sentencia.

ARTICULO 33°El Tribunal Arbitral decidira con

form e al derccho internacional, a menos que las Partes hubieren dis- puesto otra cosa cn el compromiso.

ARTICULO 34°Las decisiones del ri ribunal Arbi

tral se adoptaian por mayon'a de sus miembros. La auseneia o abstention de uno o dos de sus miembros no sera impedimenfo para que el Tribunal scsione o llcgue a una decision. En caso de empale, decidira el voto del Presidente.

ARTICULO 35"La Sentencia del Tribunal sera

motivada. Mencionara los nombres dc los miembros del Tribunal Arbitral que hayan partieipado en su adoption y la fecha en que sc haya dictado. Todo miembro del Tribunal tendra derccho a que se agregue a la sentencia su opinion separada o disidcnle.

ARTICULO 36°La sentencia sera obligatory para

las Partes, definitiva e inapelable. Su cumplimiento esta entregado al honor de las Nacioncs signatarias del Tratado de Paz y Amistad.

ARTICULO 37°La sentencia debera ser ejecutada

sin demora cn la forma y dentro de los plazos que d Tribunal senale.

ARTICULO 38°El Tribunal no cesara cn sus fun-

ciones iiasta que liaya declarado que, en su opinion, se ha dado eje- cucion material y completa a la sentencia.

I

ARTICULO 39A menos que las Partes eomen-

gan otra cosa, los desaeuordos que suriun entre las Panes acerca de la interpretaeidn o cl tr.odo de ejeett- eidii de la sentencia arbitral podran ser sometidos por cualquiera dc la- Partes a la decision del Tribunal que la has a diclado.

A tal efecto, toda \ acante oviirri- Ja en cl I'tibuno! -ere, cuhierte en la forma establccida cn e! articulo 2(A del piescntc ancxo.

. ARTICULO 40"Cualquiera de las Pastes po■' ;i

jv-Jir la revision de la sentencia ante cl Tribunal que la die to siempre que se deduz.cn antes de vencido el plazo senalado para su c^eueidu, y ei) los sieuientes casos:

1, St sc he. dietado sentencia en

! virlud dc un Jocumcnlo false o I adulleradu.j 2. St la sentencia ha side en lo- I do o en parte la eonseeueneia de un | error dc hecho, que resuhe de la. j acluacieiics o document-- de i,i

■ eau.-a.j A tal efecto, toda vacante ocurri- ; da cn el Tribunal sera cubicim cn

!a Emma ^stablccidtt en cl ;u ffculo 2o del p; c oak ancxo.

; ARTICULO 41"j Cada uno dc los teicuthuo del I Tribunal Arbi it a! reeibira una com-

pcnsacidn pecuniaria cuya cuamin sera fijtda dc comun m uerdo con las Parte.-, las entiles la -uf ragman por miladcs.

Cada una de las Partes paguid j -us ptvpiv's gustos y ia mitad de ho I expetisa- eemnnes del I ribnn.d

ANF.XO n. 2

NAVEGACION

Navegaeidn entre el Estrccho dc Magallancs y Buerlos argent inns

cn cl Canal Beagle. y rieeiyrsa

ARTICULO 1

Put a el trafieo maruimo emre ei 1 -tivclio de MagaHanc- v puerto- nigeniino- en el Canal beagle, y vire- versj. a traces cfe agtias intcriorcs ihilcnas, los buqucxs argentinos g^/a ran de facilidades de navegaeidn ex- elusi\amente para cl pttso j>or la si- yuiente ruta:

Canal Magdalena, Lanai Cock- burn, Paso Brecknock o Canal Oca- si on, Canal Ballencro, Canal O'Brien, Paso Timbales, Brazo No- rocste del Canal Beagle y Canal Beagle hasta el meridiano 68° 36’ 38”.5 Iongitud Oeste y viceversa.

I a desert peion de la ruta me nc toil ada sc scnala en la Carta n. Ill adjunta.

ARTICULO 2°Id paso so reali/ura con piloto chi-

lcno, quien actuara como ase«or tcc- nico del Comandante o Capit.in del buque.

Para la oportuna designation y embarque del piloto, la autoridad argemina comumcara al Comandante en fefe dc la Tercera Zona Naval chilenu, por lo menos con cuu- renta y ocho boras de uiuiclpacidti. la fecha en que cl buque iniciara la navegaeidn. '

LI piloto ejcrcera su funcidn entre c! punto cuyas coordcmtdas geo- graficas son; 54“ 02\8 dc latitud Sur y 70 57’.9 do lonailud Oeste y e! meridiano 68° 36’ 58”,5 dc longi- ntd Oeste cn cl Canal Beagle.

hn la navcgacicn desde o hacia la K>ca oriental del Estrccho de Magallancs, cl piloto cmbarcata o dcsem- bara en cl Puesto de Pilotos dc Bahu Poscaion en cl Estrccho de Ma- gallanes. En Ia navcgacicn hacia o desde la boca occidental del Estrccho dc Magallancs, embatvara o desembarcara cn cl punto corrcs- ponJiente scnalado cn cl iuciso anterior. Sera conducido hacia y desde los puntos cituJos anteiionnenic por un medio de transpose chilcno.

Ln la navegaeidn desJe o hacia puertos argentinos cn cl Canal Beagle, cl piloto embnreara o Jcsent- barcara cn Usltuaia. v sera comluci- do desde Puerto Williams hacia Hslmaia o desde c.-te ultimo puerto hacia Puerto Williams por un medio de transporte argentino.

I os buques ntercantes debertin eaucelar los gastos de pilotaje esta-

, blecid.is eu cl Reglamcnto de Tad- j fas dc hi D tree cion General del Te-

rritorio Mm ilium \ de M.uin.i M,v- i.mie dc Chile.

Ij ARTICULO 3'| h.i paso dc los buques argciuinos | sc hard cn forma continua c inin- j ierrumpida. En caso dc dctencidn o

lotideo por causa de fuer/a mm jr cn ia ruta indicaJa cji d ana.uK>. 1\ cl Comandante o Capitan de! buque argentino informant del hecho a la autoridad naval chilen t m.i- proxima

ARTICULO 4

En los caso- no previstos cn el presente Tratado, los buques arguilinos se sujeiaran a las normas del derccho inlettutcional. Durante cl pttso dichos buques sc abstendnin dc reali- zar cualquier uctiviJad que no cstedirect amente rclacionaJa con cl paso, como las siguientes: ejercicios o prdcticas cono annas dc cualquier Case: luirzamiento, aterrizaje o rc- cepcidn dc aeronaves o dispositivos tnilitarcs a bordo; embarco o dcsem-barco de penonas; actividades dc pesca; mvestigactenc.s: levanlumicn- tos hi Jrograficus; y actividades que pued.m perturbar la seguridad y los sistemas dc comimicacicn Je la Republika de Chile.

| ARTICULO 5 .

| Lo- >ub:narinos y cua!e.-quiera i sitros vchiculos sumcrgihles deberun J navegar en la sitpcrficie. dddits loi j buques naveganin con luces cnccn- I didas y cnttrboltmdo su ptt!«c'ldn.

ARTICULO G"j La Republica de Chile podra sus- j ponder tcmjxrralmente cl p;tsc« de , buques cu ca:,os de itnpedimcnto a j la navegaeidn por causa de fuerza j mayor v uuicatnenie por .1 tiempo I quo tal impedimento dure. T-il >.ii-

pension tendra efecto una wt romu j i’dcttda a la autoridad argemina.

ARTICULO 7

El numero de buques de guenu.ar- geminos que naveguen simuhanc.vmente cn la ruta dcserita en el articulo primero no poilrd exccdcr dc tres. Los buques no podran llcvar unidadcs dc dcsembarco a bordo.

i Nacegacioih entre puertos argentinos ! en el ('anal Beagle y la Intdrl'ula.| y vieerersa; o entre puertos urgentinos i en el Canal Beagle r la zona ; economica exehisira argenlinu i adyacentc al limite inarllirno entre ! la Rcpubiica de Chile y la j Republica Argentina. v‘ rice versa

ARTICULO <TI’.mxi zl t:\iiico maruimo s,n;v

ruett.-- argentinos cn ci C.ma! Beagle y la Amariitl.i. y viccversa: o entre pueblo- argentinos en cl Canal beagle y la Zvtna Ece-ndmictt Exclt;- siwi t.rgcmitta advttecme a! limite ma. it into entre ht Republica dc (bile \ hi Rcru'e'i . \rg,e;:iina, y \ ice- versa, !,:> nuque-t tu-genlinos gozaratt dc f.icilidadcs dc iia-.v-acion para e, pa>o a lraves de agmis intcrioics elii- leuas cxelusivameiite pe.r la .-iguirnt. ruta:

I’m.s Pietor. y Riel-mom.] slguieav do iuegu. ;t parti: J,-l panto fijado par his co.>. JetitiJas >3' 21 ‘.U de •atttud Sur \ (u> -1 i ',0 dc Iongitud Oeste. la dircccidn general del mve

i comprciklido mure ci OJO' y ISO': geograii-os x m sit.deros, para salir a)i lit;:r krniorlai chilcno; o nucando! ci mar ku rit.ui;.! chilcno cn ditec j cion genera! dc! mvo co:nprcnJiJc>l mure ci 270" y 000‘ ycugvafiai- ver- j dader,:... y contmuand - p. r io- Pa; s-. •- Rieiiiiioi.d y hikon.| id pa so - c r.ali/.irti , hi ;ah : ; ^hi j h -to ni aviso.i I.a dcscripcidn dc hi men, ionada J ruta .--c -cpahi cu h. kan v>. 'llj ad’Unta,

! ARTICULO 0j Sc ap! tea ran al paso pitr la oita i iadicudu cii el articulo an.crior ias ; disj'o: icis tic • cuntcniilas cn i-_>s ar- I ticulos ’ . \ g 5 de! ]>■: rente

l\aregari6n hacia ’/ AOrte par ( I listrech<

V desd<’ de Le Main

AIUICIJLO 10

Pa:a cl nailico manhimo haem \ desde cl none gv>r ei l-isitecho iL 1 c Maire, los buques chi! nos go/ar:in de iacilidudes dc navegaeidn pur.i ei

paso por I’ielio I r t echo, hi j'itoto argentino ni aviso.

Sc apbca;an ai pa o por cm:-, rule. mu tails' muUnhlis, las dispoaicioncs contoiiida.-, cn los ariicttio- 3' 4' v S' del presenk1 .Ancxo.

Regimen de y pilotaje

Na t eg(i( ion, pracliea je en el Canal Beagle

ARTICULO 11"En e! Canal beagle, a amlm> ’ado-

del limite cxistenle entre c! mendia- no 68 36’ 38 ’.3 dc Iongitud Oeste v cl meridiano 66“ 2S’,0 do Iongitud Oeste aenahtJo en Ia Carta N. IV ! adjunta, sc establece el regimen iL. | navegaeidn, practicaic y pilotaje que j se define cn io- arifeulos siguientes. j

ARTICULO 12° |Las Partes acuerdan Iibcrtad de j

na\cgac:Vm para los buques chilcnos >’ argentinos cn cl tramo indicado cn ci articulo anterior.

Ln el tramo indicado los buques ! mcrcantcs dc tcrccras banderas go- 1 /'unit! del derccho dc paso con sujc- ; cion a his rcghis que se estab’ecen cn cl presente Ancxo.

ARTICULO 13"hos buques de guerru de (eicera- |

banderas quo se dirijan a un puerto j de alguna de las Partes situado dentro de! tramo indicado en el articulo i ib' del presente Anexo, deberan jcontar con la ptviia autorizacidn de j dicha Parle. Esla in forma ra a Ia otra i de! arribo o zarpe de un buque de guena extianjet j.

ARTICULO 14"has Partes se obligati reu'proea-

mente ., desarrolutr. cm el tramo in- dieado en e! artfculo 11“ derpresen- te Anexo, en las conus que cstan bajo sits tespectivas jurisdiccioncs, las uytkhis a la nmcgacidn y a coor- dinar cmtc sf talcs ayudus a tin de lacilitat ta navegaeidn v garaniizar su seguridud.

Las derreias ttsuales dc navcgacidn se mantendran permanentenven- tc despejadas dc todo obstaculo o nctividad que pueda afectar la navcgacidn.

Las Partes con vend ain sistemas de ordenamieiito de trafieo para la

eguridad de la navegaeidn cn las areas gcogralicas de Jiffell pa-o.

ARTICULO 15"bos fuaptes chilem-i y arg.cntiiK-s

no cstan obligados a tomar piloto cn ct tramo indicado cn ei arifculo 11 del presente Anexo.

Los buques tie tercer.:- banderas quo naveguen desde o hacia un puerto situado en dieho (tamo, deberan cumpiir cl Reglmuemo dc Pb iotajc v Praaicaje del path- d ’ puer- !o de zarjTe o de de-tino.

Cuando dichos buquc5 i!aro.L,;,i cube pue.tos dc una y l-t;a Pattc cumplirafi e! Reglamcnto de Pthcajc dc la Parte del puerto de zarpe •. c! Reglamcnto de Piucticajc de la Parte del jmerlo tie anilxr.

ARTICULO 16"Las Partes aplicuum sus j-iopias

m.tk'i :a d .Praclieaje cn los puertos ..bieado- cn sus respeetivas jurisdiccinnes.

ho- hucjues que miliecn pilo'o t/uran la handera del pais cuxo re glameiuo esten aplicamio.

Todo buque que utilice lo- :er> cios de pilotaje y pra.tieajc debeta pagar los derccho- eorresponJi-enk a esc servicio y todo otto gta\an,cn que c.x.sta a cste resjjeeto cn la re- glamentacion de la Pmic Mue efee lue el pilotaje y praclieaje.

Las Paries brinJaran a los piloto: y praeticus his nuiximas faeil Jade- en el cumplimiento de su ij.:-;,m Dichos pilotos o practices podran dcsenibarcar Iibremcnie cn los j<uee los de una u otra Patie.

Las Partes procuraran estahlecer normas concordantes y unbonne > para cl pilotaje.


EGYPT - MINING OF THE SUEZ CANAL AND ITS APPROACHES_ ____________________________ ______ . __ - - - - ■ - ' ■

A recent mine sweeping operation conducted by Egypt and other powers at the invitation of the Egyptian Government resulted in the finding by the Royal Navy of one mine believed to have been recently laid. Prior to the mine sweeping operations there had been other explosions of mines.

According to information provided by the Embassy of the Arab Republic of Egypt in Canberra, President Mubarak stated on 10 August 1984 that:

"The Egyptian regional waters were clear of mines, and Egypt would undoubtedly stick to its right against any country proved to be responsible for planting mines, by preventing their ships from crossing the canal according to the Tenth Article of Constantinople Agreement."The Constantinople Agreement referred to is the Convention signed at

Constantinople on 29 October 1888: 3 AJIL Supp. 123(1909). This was made between"HerMajesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India; His Majesty the Emperor of Germany, King of Prussia; His Majesty the Emperor of Austria, King of Bohemia, etc., and Apostolic King of Hungary; His Majesty the King of Spain and in his name the Queen Regent of the Kingdom; the President of the French Republic; His Majesty the King of Italy; His Majesty the King of the Netherlands, Grand Duke of Luxemburg, etc.; His Majesty the Emperor of All the Russias; and His Majesty the Emperor of the Ottomans." The purpose of the Convention was expressed to be to establish, by a Conventional Act, a definite system destined to guarantee at all times, and for all the powers, the free use of the Suez Maritime Canal, and thus to complete the system under which the navigation of this canal has been placed by the Firman of His Imperial Majesty the Sultan, dated the 22nd February, 1866 (2 Zilkade, 1282). "

The relevant articles of the Convention appear to be articles 1, 9 and 10. These provide:

ARTICLE 1. The Suez Maritime Canal shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag.

Consequently, the high contracting parties agree not in any way to interfere with the free use of the canal, in time of war as in time of peace.

The canal shall never be subjected to the exercise of the right of blockade.

ARTICLE 9. The Egyptian government shall, within the limits of the powers resulting from the Firmans, and under the conditions provided for in the present treaty, take the necessary measures for insuring the execution of the said treaty.

In case, the Egyptian government should not have sufficient means at its disposal, it shall call upon the Imperial Ottoman government, vhich shall take the necessary measures to respond to such appeal; shall give notice thereof to the signatory powers of the Declaration of London of the 17th March, 1885; and shall, if necessary, concert with them on the subject.

The provisions of articles 4, 5, 7, and 8 shall not interfere with the measures which shall be taken in virtue of the present article.

Cl9851 AUSTRALIAN INTERNATIONAL LAW NEWS 310

ARTICLE 10. Similarly, the provisions of articles 4, 5, 7, and 8, shall not interfere with the measures which His Majesty the Sultan and His Majesty the Khedive, in the name of His Imperial Majesty, and within the limits of the Firmans granted, might find it necessary to take for securing by their cwn forces the defence of Egypt and the maintenance of public order.

At the time of the nationalisation of the Suez Canal in 1956 it was stated on behalf of Egypt that:

"it remain ^ the unaltered policy and firm purpose of the Government of Egypt to respect the terms and spirit of the Constantinople Convention of 1888 and the rights and obligations arising therefrom"(3 Whiteman 1102) .

I

EGYPTIAN - ISRAELI RELATIONS - THE TABA DISPUTE

Taba is located between the Israeli resort of Eetat and Egypt's Sinai desert. It is the last important territorial dispute remaining between the two powers. Most outstanding issues were settled by the Egyptian-Israeli Treaty of Peace dated 26 March 1979: 18 IIM 362 (1979).

According to the Economist 27 October 1984 at p.24, the dispute "... arises from a disagreement between the two governments about hew to read an oldBritish mamp ... drawi- y a Captain Owens and a Mr. Wade__published in 1906 toincorporate the conclusions of a team of British officers in Egypt and Ottoman Turkish officers from Jerusalem who were trying to resolve an argument between the two powers."

In 1906, as a result of an exchange of notes on 14 and 15 May between the Ottoman Minister for Foreign Affairs and the British Ambassador at Constantinople, an agreement was entered into on 1 October between the Egyptian Khedivate and the Turkish Sultanate fixing an "Administrative Line" between the Vilayet of Hejaz and the Govemate of Jerusalem and the Sinai Peninsulat. It will be noted that one of the two Commissioners of the Egyptian Khedivate, is the Captain Owens referred to by the Economist. The letters and an extract from the Agreement follow. (See C. Parry, Consolidated Treaty Series, Volume 201 at pp 190,191; Volume 203 at pp 19-21.)M. L'Ambassadeur, Le 14 Mai, 1906.

J'ai eu l'hcnneur de recevoir la note que votre Excellence a bien voulu m'^crire le 12 de ce mois concemant 1'occupation de Taba.

Permettez-moi de vous fair observer qu'il n'est jamais entre dans la pensbe du Gouvemement Imperial de meconnaitre le contenu du t§Tegranme du 8 Avril de feu Djevad Pasha a Son Altesse le Khedive. Du reste, la ccnmunication que j'ai eu l'honneur d'adresser a votre Excellence le 11 de ce mois etait tout a fait explicite. L'evacuation de Taba a ete decidee et les ordres ont ete deja donnes en consequence.

II est entendu que les officiers d'Etat-Major se trouvant a Akaba et les fonertionnaires qui seront envoyes par Son Altesse le Khedive se reuniront pour effectuer sur les lieux et d'apres les donnees topographiques, un enquete technique pour la designation sur une carte des points de nature h assurer le maintien sur la base du telegramme pr£cit<=i de Djevad Pasha du statu quo dans la Presqu'ile de Sinai et pour tracer la ligne de demarcation a partir de Rafeh, pres d'El Arich, et . allant vers le sud-est en une ligne approximativement directe jusqu'& un point sur le Golfe d'Akaba a une distance d'au moins 3 milles d'Akaba.

Les vues exprimees dans la ccmnunication precitee de votre Excellence se trouvent ainsi pleinement realisees.

En priant votre Excellence de vouloir bien ccmmunique ce qui precede a Londres, nous esperons que le Gouvemement de Sa Majesty le Roi y verra une nouvelle preuve de notre vif desir de maintenir toujours nos relations sur le pied de la plus parfaite cordialite. En nous exprimant, de son cote, sa pleine satisfaction, il nous aura temoignd lui-meme du prix qu'il attache a la conservation et au raffermissement des bons rapports qui existent si heureusement entre les deux Etats.

Veuillez, &c.,TEWFIK.


DATED 5 RAY 1906. LETTER FROM THE BRITISH AMBASSADOR AT CgjSTAHTTRfOPIJS TO THE OTTOMAN MINISTER FOR FOREIGN AFFAIRS

j M. Le Ministre, Constantinople, 15th May, 1906.I lost no time in referring to my Government the note which your

Excellency was so good as to address to me on the 14th instant in reply to my note of the 12th on the subject of the occupation of Taba and delimitation of the

j Peninsula of Sinai.j His Majesty’s Government have received with pleasure your Excellency's

declaration that the Sublime Porte does not question the contents of the telegram addressed by the deceased Grand Vizier, Djevad Pasha, to His Highness the Khedive on the 8th April, 1892; that the withdrawal of the Imperial troops from Taba has been decided upon; and that instructions have been sent to the Ottoman Staff Officers new at Akaba to delimit and record on a map, jointly with the officials to be appointed by His Highness the Khedive, the line of demarcation running approximately straight from Rafeh in a south-easterly direction to a point on the Gulf of Akaba not less than 3 miles from Akaba so as to insure the maintenance of the status quo in the Sinai Peninsula on the bases of the telegram above-mentioned of the 8th April, 1892.

On behalf of His Majesty's Government I have the honour to take act of the foregoing declarations, also of the declaration of his Highness the Grand Vizier that orders have been sent for the withdrawal of the Ottoman troops into Turkish territory to the east of Rafeh should any have crossed to the Egyptian side, and the restoration of the pillars said to have been lately destroyed there, and to express their satisfaction at the settlement of this question, which cannot fail to contribute to the maintenance and consolidation of those friendly relations which are so desirable in the interests of both countries, and which are no less appreciated by the Government of my august Sovereign than by that of His Imperial Majesty the Sultan.

I avail, etc.N.R. O'CONOR.

AGREEMENT DATED 1 OCTOBER 1906 BETWEEN EGYPT AND TURKEY FIXING AN ADMINISTRATIVE LINE BETWEEN THE VILAYET OF HEJAZ AND THE GOVERNORATE OF JERUSALEM AND THE SINAI PENINSULA.

El Miralai Staff Officer Ahmed Muzaffer Bey and El Bimbashi Staff Officer Mbhamed Fahmi Bey, as Commissioners of the Turkish Sultanate, and Bnir-el-Lewa Ibrahim Fathi Pasha and El Miralai R. C. R. Owen Bey, as Commissioners of the Egyptian Khediviate, having been intrusted with the delimitation of the Administrative Separating Line between the Vilayet of Hejaz, and Govemorate of Jerusalem, and the Sinai Peninsula have, in the name of the Turkish Sultanate and the Egyptian Khediviate, agreed as follows:

Art. I. The Administrative Separating Line, as shown on map attached to this Agreement, begins at the point of Ras Taba, on the western shore of the Gulf of Akaba, and follows along the eastern ridge overlooking Wadi Taba to the top of Jebel Fort; from thence the Separating Line extends by straight lines as follows: (a survey description follows). II.

II. The Separating Line mentioned in Article I has been indicated by a black broken line on duplicate maps (annexed to this Agreement) , which shall be signed and exchanged simultaneously with the Agreement.


III. Boundary pillars will be erected, in the presence of the Joint Commission, at intervisible points along the Separating Line, from the point on the Mediterranean shore to the point on the shore of the Gulf of Akaba.

IV. These boundary pillars will be under the protection of the Turkish Sultanate and Egyptian Khediviate.

V. Should it be necessary in future to renew these pillars, or to increase them, each party shall send a Representative for this purpose. The positions of these new pillars shall be determined by the course of the Separating Line as laid down in the map.

VI. All tribes living on both sides shall have the right of benefiting by the water as heretofore, viz., they shall retain their ancient and former rights in this respect.

Necessary guarantees will be given to Arab tribes respecting above.Also Turkish soldiers, native individuals, and gendarmes shall benefit by

the water which remained west of the Separating Line.VII. Armed Turkish soldiers and armed gendarms will not be permitted to

cross to the west of the Separating Line. VIII.VIII. Natives and Arabs of both sides shall continue to retain the same

established and ancient rights of ownership of waters, fields and lands on both sides as formerly.

Commissioners of the Turkish Sultanate:MIRALAI STAFF OFFICER MUZAFFER BIMBASHI STAFF OFFICER FAHMI

Commissioners of the Egyptian Khediviate:EMIR LEWA IBRAHIM FATHI MIRALAI R. C. R. OWEN


ISRAEL AND THE LEBANONThe Policy of the present Israeli Government was indicated by Foreign Minister, Yitzhak Shamir, in his address to the United Nations General Assembly on 3 October 1984 where he said:

Such negotiations pr^Juced the agreement with Lebanon which was signed on 17 May 1983.

But Syria and those who cannot tolerate the idea of peace with Israel destroyed it by

the application of sheer, brutal force. The agreement was designed to lead to the

withdrawal of all foreign forces from Lebanon, the restoration of Lebanese indepen

dence and the establishment of security measures along the Lebanese-Israel border.

Today, some 40,000 Syrian troops occupy 65 percent of Lebanon and show no sign of any

intention to leave. The Lebanese government is dominated by Syria and is not capable

of conducting free negotiations that would resolve its problems with Israel. Obviously, Israel will ensure its legitimate security needs and make the necessary arrangements in

southern Lebanon to protect the people of northern Israel against any repetition of

the terrorist attacks of recent years. I reiterate our readiness to withdraw all our

forces from Lebanon, subject to the above-mentioned arrangements.

It should be clear that Israel has no interest in maintaining any military presence in

Lebanon. But we have to make certain that after the last Israeli soldier leaves

Lebanon, the terrorists will not return to attack us.

Let me repeat: anyone, any people or state that is interested in the evacuation of the

Israel army from Lebanon must see to it that the terrorist organizations expelled from

Lebanon by Israel do not return to our borders to renew their attacks. This is an

essential condition for peace. Israel is ready to cooperate in any serious effort

toward a fair solution to this problem.

Subsequent negotiations between the Israeli and Lebanense representatives did not ‘ lead to an agreement.


ISRAEL'S DECISION TO WITHDRAW FROM LEBANON.

This communique and the following documents were provided by Mr Yigal t avie, Minister-Counsellor Embassy of Israel, Canberra.

CABINET COMMUNIQUE ON WITHDRAWAL

At the special cabinet meeting yesterday the cabinet resolved that:A) The Israel Defence Forces will redeploy along Israel's

northern border. The government will do everything required to guarantee the security of the Galillee.

B) The redeployment will be implemented in three major phases:Phase 1 - in the western sector of Lebanon, the IDFwill withdraw from the Sidon area and deploy in the Litani-Nabatiya region.Phase 2 - in the eastern sector of Lebanon, the IDFwill deploy in the Hasbaya region.Phase 3 - the IDF will deploy along the Israeli-Lebanese international border while maintaining a zone in southern Lebanon where local forces (SLA) will operate with IDF backing.

C) Phase 1 will be carried out within five weeks of this decision. An announcement on the timetable will be submitted in advance to the Lebanese government and the UN Secretariat in order to permit them to organise and deploy forces in the area the IDF will vacate.Timetables for each additional phase will be decided by the cabinet. Throughout all the phases, efforts to reach diplomatic agreements will continue.

lfj ,) «"> n t! a r </ 1 .<.

IDF VITHDRAWAL FROM LEBANON: PHASE ONE(Daskqrutjrid Informal. ion)

'•oner a 1

Th.o yor wishes to coordinate its withdrawal with the Lebanese in' her it. iee and has indicated to the Lebanese Army and to UNIEIL that it wishes to transfo*- contra! of the territory (which will be evacuated during the first phase) in an cideriy fashion.

I he I OF wishes to alleviate hardships for the civilian population of Lebanon and is striving to leave the area in an organized manner which will enable Lebanese authorities to control the situation following the withdrawal of (!>“ forces.

[ ime Sc.Vdu 1 c f or- Wi thdrawa 1

The first _phase of the IDF withdrawal from Lebanon is planned for completion within five w?oks. Ine Greater Si don region will be evacuated within three weeks. The redeployment line will be of a temporary nature aril toe Ilf does not plan to invest in new installations or facilities along th> new line. Every possible effort is being made to save funds and alleviate waste during the redeployment.

FIRST °HAr r OF Ilf WITHDRAWAL: VITAL STATISTICS

1. Area within the present. IDF Deployment (Awali Line) - 2,800 sq.km.

2. Terr \ tcry evacuated by IDF in first stage of withdrawal - about 500

3. After comokt it ion of the first stage, the IDF will remain in control of about 2,SOU sq.km, (approximately 22% of total Lebanese territory).

4. An - opr ) x iin.-ite population of 250 •• 400,000 inhabitants are included in the territory li be evacuated iri the first stage of the ICE wir hdrawa1.

5. The total Lebanese population under IDF control after completion ofthe first stage: 350 - 500,000

Approximate emulation makeup (in areas which will remain with in IDF deployment, i ines }:

Shiites -about 2TO,000Cruze -about 20 - 30,000Christians -about 70,000Others (including -about 40,000Palest in i ns)

sg.km.


POLICY BACKGROUND1 1 4 /25.1.85/3.10.100.20

ISRAEL’S DECISION TO WITHDRAW FROM LEBANON

The decision of the Government of Israel to carry out a phased vithdraval of its armed forces to the Israeli-Lebanese border came iri the vake of the following developments:

1. On 17 May 1933 an agreement was signed between Israel and Lebanon which, had it been implemented, would have enabled the Israel Defence Forces (IDF) to withdraw from Lebanon under conditions a) satisfying Israel's minimal security requirements for the safety of its citizens in northern Israel (Galilee);

b) protecting the local Lebanese civilian population, with the Lebanese government exercising its authority throughout its territory; and c) developing good- neighbourly relations between the civilian populations of the two countries,

2. However, that agreement, though ratified by an overwhelming majority in the

Lebanese Parliament, was abrogated less than a year later by Lebanon, yielding to Syrian pressure.

3. Nevertheless, Israel agreed to re-open talks with Lebanon at Nakoura, *between military delegations from the two countries, in an effort to reach analternative agreement. At these talks, which began on 8 November 1984, Israelput forward proposals designed to meet its minimal security needs, while alsoprotecting the local Lebanese population. These proposals called for thedeployment of UNIFIl forces throughout the area to be evacuated by the IDF, with rits main force being stationed north of the Litani River, and the deployment - jin a zone near the Leheriese-Israeli border - of locally-recruited Lebanese units,whose task it would be to prevent the infiltration of terrorist elements intosouthern Lebanon. Thu eventual incorporation of these units into the LebaneseAmy was not excluded.

4. It was Israel's hope and expectation that Lebanon would address these minimal proposals positively, thus clearing the way for an IDF withdrawal. Instead, the

Lebanese delegation - at a dozen negotiating sessions - persistently evaded the

issues and objected to the changed deployment of UNIFIL. Dehind this Lebanese

Israel Ministry of Foreign Affairs • Information Division Jerusalem


-2-

intransigence stood Syria's demand that Beirut must insist on an unconditional Israeli withdrawal, thus assuring neither minimal security nor even »he hope

of a reduction of tension.

5. Faced with the choice of either keeping its troops in Lebanon indefinitelyor unilaterally establishing security arrangements to prevent the re-transformation of southern Lebanon into a base for international terrorism* Israel chose the

latter course.

6. Israel's proposals at Nakoura - like earlier ones (rejected by Lebanon) - were designed, among other things, to forestall the possibility of inter-communal fighting among the civilian population of southern Lebanon. In its latest

decision, the Government of Israel again calls upon the Government of Lebanon

and the United Nations to utilize the five-week period pending implementation of

the first phase of the withdrawal to arrange for an orderly takeover of the areas

to Lr evacuated. In the event of the Lebanese government's failure to respond

positively to this call, the responsibility for any disorders that may result will be that of the Lebanese government Itself.

7. In the absence of a bilateral (Israeli-Lebanese) agreement on adequate security

arrangements in southern Lebanon, Israel naturally retains the option of acting to prevent any hostile action across its northern border - be it a military or a

terrorist nature. Israel will continue to strike at the terrorist organizations with all the means at its disposal.

8. The Government of Israel wishes to make it crystal-clear that it has no claims

of any kind on Lebanese territory. Its central interest and purpose - in this as

in past decisions concerning its involvement in southern Lebanon - is to ensure

the peace and security of its towns and villages in Galilee, by doing its utmost to prevent the re-deployment of PLO and other terrorist elements in southern Lebanon. Hopefully, this can still be achieved through soma form of cooperation

and coordination between Israel and Lebanon; surely, a peaceful and orderly

transition is in the interest of both.


AGREEMENT BETWEEN THE HASHEMITE KINGDOM OF JORDAN AND THE PALESTINE LIBERATION ORGANIZATION - 11 FEBRUARY, 1985 *______________

BID FOR JOINT ACTION:

Emanating from the spirit of the FezS.immit resolutions, approved by Arab states; aiid from United Nations- resolutions relating t-- the Palestine question,

In accordance with international legitimacy, and

Deriving from a common understanding on the establishment of a special relationship between the Jordanian and Palestinian peoples,

The Government of the Hashemite Kingdom of Jordan and the Palestine Liberation Organization have agreed to move together towards the achievement of a peaceful and just settlement of the Middle East crisis and the termination of Israeli occupation of the occupied Arab territories, including Jerusalem, on the basis of the following principles:

1. , Total withdrawal from theterritories occupied in 1967 for comprehensive peace as established in United Nations and Security Council Resolutions.

2. Right of self-determination for the Palestinian people: Palestinians will exercise their inalienableright of self-determination when Jordanians and Palestinians will be able to do so within the context of the formation of the proposed confederated Arab states . of Jordan and Palestine. •

3. Resolution of the problem of Palestinian refugees in accordance with United Nations resolutions.

4. Resolution of the Palestine question in all its aspects.

.. .2

* (The text of this agreement was made available by Mr Muwaffaq Ajlouni, Consul of the Embassy of The Hashemite Kingdom of Jordan, Canberra.)


2.

5. And on this basis, peace negotiations will be conducted under the auspices of an International Conference in which the five Permanent Members of the Security Council and all the parties to the conflict will participate, including the Palestine Liberation Organization, the sole legitimate representative of the Palestine people, within a joint delegation (joint Jordanian Palestinian Delegation) 11

11 February, 1985

AUSTRALIA - PAPUA NEW GUINEA

RATIFICATION OF THE TORRES STRAIT TREATY *

The Papua New Guinea Minister for Foreign Affairs and Trade,Mr John Giheno, MP, and the Australian Minister for Foreign Affairs, Mr Bill Hayden, MP, announced that they had exchanged instruments of ratification which had the effect of bringing the Torres Strait Treaty into force today, 15 February 1985.The ratification ceremony held at the National Parliament Building in Port Moresby was attended by the Minister for Primary Industry, The Hon. Rabbie Namaliu CMG, MP, from Papua New Guinea, by the Australian Ministers for Primary Industry,Mr John Kerin, MP, and for Aboriginal Affairs, Mr Clyde Holding, MP, and by representatives of the traditional inhabitants <f£ the Torres Strait area from both countries.The Ministers recalled that, when Papua New Guinea became independent, both governments had committed themselves to reaching an equitable and permanent settlement of the many social, legal, political and economic questions involved in the area between Papua New Guinea and Australia, including the Torres Strait. Following upon a period of intensive negotiations, the Treaty was signed on 18 December 1978. Novel and complex implementing legislation had then to be prepared and passed by the Parliaments of Papua New Guinea, Australia and Queensland before the Treaty could be ratified.The Ministers said that the Treaty establishes the maritime boundaries between Papua New Guinea and Australia and provides for an equitable distribution of fisheries and seabed resources. A feature of the Treaty to which both their Governments attached importance is the protected zone established by the Treaty which will protect the way of life and livelihood of the traditional inhabitants of the Torres Strait area.The Ministers noted that the Treaty makes detailed provision for consultation between the two countries on all matters relating to its implementation. They said that both their Governments were,determined that consultations with all parties concerneS would continue to be pursued actively to ensure the effective implementation of the Treaty. A Joint Advisory Council would be established on which the local inhabitants of the Torres Strait area would have a significant voice. The Council would keep the implementation of the Treaty under review and report to the two Foreign Ministers.They regarded the ratification of the Treaty as an historic milestone in the course of the continuing development of the close' and co-operative relations between two neighbours.* (This is the text of a joint statement issued on 15/2/85 by

the Foreign Ministers of PNG and Australia).

FRANCE AND NEW CALEDONIA

Proposals by M. Pisani: The Lemoine Statute of 6 September 1984 *

"France or independence..........................independence or France. It is possible to

link two concepts until now opposed. I suggest that you choose, within

the framework of Article 88 of the Constitution, the independence-association

with France statute, which guarantees to both France and New Caledonia stable

relations, and to everyone - every person and organization - the respect of

their legitimate rights, as well as their security.

"Why both - and not one or the other? How can there be a guaranteed indepen

dence with a guaranteed French presence? I will endeavour to answer those

questions.

"There cannot be a durable, p>ac.ific and useful French presence in the South

Pacific without everyone's agreement. There cannot be an agreement on this

without a political procedure acknowledging the birth of a new sovereign

State. The claims of the independence movement have their roots in history.

It exists at various levels and dwells, with varying degrees of impatience,

in the hearts of men and women born in their land. Furthermore, the last

forty years have taught us that, from the moment the claims to sovereignty

are expressed by authentic people, they can only be finished through indepen

dence. There is proof that the present statute of the Territory does not

unite all the opponents - the number of which can only increase, even after

order has been reinstated. No similar statute would correct, swiftly and

fundamentally, the deep imbalances within the New Caledonian society. This

change is necessary for New Caledonia, because it is essential for its

future. There is no other way to bring internal peace and security.

"This answers the question 'Why independence'?

"Now, why France?

*[Mr. Edgar Pisani, High Commissioner of the French Republic to New Caledonia made this proposal on 7/1/85. In it he announced a referendum in July 1985 in which all French citizens who have lived in New Caledonia for three years or more would

- be entitled to vote. The question to be considered is whether the Lemoine Statute of 6 September 1984 be maintained or whether the voters approve the constitution of New Caledonia as an independent ^tate associated with France under the conditions laid down by Article 88 of the Constitution. It will be recalled that the election held under the Lemoine Statute was the subject of a boycott by many of the Kanak or Melanesianpeople who constitute 43% of the population.The Lemoine Statute itself provided for a referendum at the end of five years.]



- 2 -

"Because she has legitimate interests to defend. Because many Caledonians

demand that she remain; because all Caledonians v.Tish so; because France has

accomplished something in this territory - something maybe imperfect, but

useful - and she should continue. No-one in a position of responsibility

has ever considered things differently. •

"The independentists themselves wish France to remain. They know French

presence is necessary to maintain and guarantee the new equilibrium; to

accompany the new institutions (still without experience) in their first

steps towards the development of human and economic resources; to guarantee

the statute and the•interests of those non-Kanaks, who would fear for their

safety and belongings.

"French presence in this land is necessary to France. This presence is

equally essential to those in favour of independence as to those who would

prefer New Caledonia to remain within the French Republic. I ask the latter

to understand that the propositions I am about to make will enable them to

remain on this land they have loved and enriched. These proposals will

offer a guarantee that they will be able to work and live there freely as

long as they recognize that the change is unavoidable. Political reality

must change so that life can continue. To ensure the security of people,

belongings, rights and investments, a new definition must be given.

"The best solution - the only one no doubt - is independence, _but., in assoc

iation with France.

"What exactly does this mean?

"In order to find the best answer to this question, once I have presented the

directions of my plan, I will ask all Caledonians to take part in the consul

tations and exchanges to be opened.'

"Once the consultations are finished, I will undertake the responsibility to

submit a global proposal to my government. The government will then present

to Parliament the plan which it has approved. I will now explain those


global proposals to all you Caledonians, for it is you vino will decide;.

"Five cispncts can be analysed separately, but to retain their fu.11 moaning,

they must be ] os'. ed into as a whole: ’

. the timetable

. independence

. the guarantees

. the French presence and its legal bases

. the future of Now Caledonia

"First; the timetable. In order to draw New Caledonia out of the uncertainties

which paralyze her at present, the following timetable has been proposed:

'' b e fore 1_II' e b r up. r y 19C 5h report vaill be made ho the President of the Republic and to the Prime

Minister.

"February 18CbSpecial parIiamentary session. In a statement, the government will define its

positions and intentions on all aspects of the problem. On this basis, citizens

will then be able to vote on self-determination. The Parliament will enact

.appropriate; legislation to authorize a referendum.

"March 1985

The electoral rolls will be epen for two months for revision.

"June 1985

Campaign before the referendum on self-dcterinincition.

"July 1985

The referendum will take place. It could include the following questions:

•Do you wish the statute of 6 September 1984 to be maintained? . .

QR


4

•po you approve the constitution of New Caledonia as an independent state

associated with France, under the conditions laid down by Article 88 of the

Constitution and in accordance with the? government declaration? (It being

understood that this association is based on a 'treaty linking the two states,

on a joint pact defining re 3 at ions between the various Ca.ledo.uian communities

and on cooperateon agreements, guaranteeing France * s contribu Lion to the

development of Kew Caledon:; a) . -

"A1 citizens who have lived in New Caledonia for three years or more would be

entitled to vote.

"Should line electorate decide to maintain the statute adopted on 6 September 1984,

all procedures defined in that statute would be swiftly implemented.

"Should the present statute bo rejected, the French Parliament would adopt legis

lation recognizing the independence of New Caledonia as from 1 January 198G.

Until. 1 January 1906, New Caledonia would be under the authority of a transi

tional government appointed, and headed by the high Commissioner, acting as

dclega Le of the Fi oneb Republic-. In that care:

"In Qe fobcury 19S5_

The New Caledonian /issembly would be elected and would draft and vote:

"In January 198G

Independence v/ould be proclaimed: the first government of New Caledonia would

take office. The official transfer of sovereignty to the new State would take

place. But what forms can this independence take?

a Treaty of. Association with France

a joint pact which would lay down the foundations

and the rules for a multiracial society in New

Caledonia

the cooperation agreements


- 5 -

"If the citizens vote for independence in July 1985, this will be granted according to international law such as it applies to all countries in the world. _

"New Caledonia would become a sovereign state. It would become a state in its own right; a democracy; a multiracial state where the principles of liberty and egality for all would prevail. It would have a vocation to become a member of the United Nations, through which it would adhere to the principle of human rights? a member of the South Pacific organizations, where it could play an important role, and as a member of the Caribbean, African and Pacific States, it would be linked with the European Community by the Lome Convention. Furthermore, through its own decision, this State would be linked with France. A Treaty of Association would, by mutual agreement, establish new links to replace those now unilaterally defined by the statute.

"The new State would have its own legislative power, as well as executive and judiciary powers. •

"It would be a sovereign state, even if its emergence into sovereignty included qualifications and agreements passed with France. This is the general procedure when states conclude agreements in their mutual interest.

"But the most important element of the sovereignty rests with the reappropriation of the land. This act, to which the Kanak community has always given priority and absolute importance, has a symbolic, political meaning. It means for them the recognition of these links which, between the community and the land, founds a nation.

"So, what guarantees will the new State give to individuals, communities, firms, who have settled in this territory and who have acquired, whatever the vicissitudes of history, legitimate rights to be honoured?

"What would the joint pact contain?


- 6 -

"A change as far-reaching as the one that could be introduced by the majority

vote of the people concerned, could modify people's behaviour, disrupt set

habits and alter their destiny. Everyone should be informed of their rights

and have them guaranteed, not only by the new State, but by the French Repub

lic, which would specify from the outset how she intends to intervene in these

matters.

"The first problem - and the most sensitive one - concerns citizenship. No-

one would be forced to take up the citizenship of. the new Stace and no-one

would be forced to leave the country just because he has not adopted the

new citizenship. French citizens living in New Caledonia who would choose

not to take the new citizenship should be able to benefit, regardless of

the ethnic group to which they belong (European, Pacific Islanders, Kanaks),

from a status of 'privileged resident' - benefit constitutionally, econo

mically and socially.

"With sovereignty, the new State would have full rights to its land, soil

and underground resources, air and sea spaces.

"As regards land rights, new regulations governing lease contracts and con

cessions for exploitation would be elaborated. This would ensure a long

term exploitation of the land, and recognize Melanesian freehold. However,

• the rights of the farmers already present would be guaranteed: their right

to work, as well as their right to transfer their property would be maintained.

"As far as mining and underground resources are concerned, the new State would

contract agreements with miners or participate with them in the establish

ment of development companies. '

"Should some land or. mining rights be affected by the application of the new .

rules, a compensation scheme guaranteed by the French State would apply.

Those entitled to land rights would receive compensation calcuated according

to the value of these rights as at 1 October 1984.


- 7 -

"As regards the economy in general, free-enterprise would apply for everyone (nationals or privileged residents) - within the boundaries of the law - and with the aim of achieving the main targets set for the economic development programme in New Caledonia. To this end, the new State would need to draw up a civil, social and commercial legislation. In the meantime, the present legislation would remain valid.

"Noumea presents some particular problems in the economic, legal and institutional sense. Hence it appears necessary to work out a special statute for the capital, enabling the participation of the privileged residents, or their representatives, in the administrative and economic management of the city and the port.

"The land of Noumea, whether developed or not, would be subjected to a global long lease granted by the new state to an authority responsible for all operations, compensation and arbitration.

"Among the problems of guarantee remains the case of public servants and employees of the territory and local administration. Special measures would be adopted to protect their rights and ensure their integration into the national administration (according to their choice, and in respect to the legislative and contractual rules applying). These rules would not prevent them from continuing to work in New Caledonia - whether it be for the new State, or whether it be for the French Government under the technical assistance scheme.

"Thus, without being exhaustive, the list of guarantees given by the new State and by France, jointly or separately, responds to the most difficult, but also the most legitimate questions that everyone asks.

"So let us not talk about France. *

"The French Republic and the new state would agree to conclude a Treaty of Association.

"France can maintain, and should maintain, her presence. France is not in


- 8 -

the position, and does not wish, to lose interest in New Caledonia. She will be present through her language and her culture. She commits herself to otherwise define her links with New Caledonia and will give her presence the beneficial influence that the statute has not allowed her to develop.

"Before stating the modalities, the spirit of the Treaty of Association must be explained and understood. Article 88 of the Constitution states that the Republic can conclude 'agreements with states that wish to associate with her in order to develop their civilisation'. Thus France, a state that has for centuries participated in the history of the world, having occupied by force a territory situated in the Antipodes, having populated and developed it, having helped the native people to develop according to her law, has decided, as the time has now come, to accompany this nation along the path to state dignity. Having achieved this, France will propose to this new State a Treaty of Association that will allow the latter to settle, develop and evolve according to the interests of its people. The Treaty of Association will also allow France, present in another way, to play a role more suited to its vocation and more in line with its interests as an international power dedicated to the pursuit of development and peace.

"This is the profound political sense of the Association and, on that basis, the treaty would organize joint institutions - such as a President of the States Association, who will ensure the respect of the pact between the states and guarantee the peaceful and harmonious development of the communities; a Council of the States Association; an Assembly representing Associated people; an Arbitration Court.

"A delegate of the French Republic, who will reside in the new State, will fulfil the role of Ambassador and will assume the responsibilities that the Treaty entrusts to the French Republic. The Ambassador of the new State, •residing in Paris, will represent the interests of the new state within the Association.

"The Treaty of Association will stipulate that the French Republic will be entrusted with the full responsibility for the defence of the new State and for the internal security of its territory. A protocol of agreement will


- 9 -

specify the obligations to which both parties will commit themselves, particularly with regard to the structure, settling, organization and use of the forces, as well as the training and promotion of personnel from the nev.7 te.

"The Treaty will define the division of responsibilities and powers within areas such as money, credit, justice, international transport, telecommunications, the infrastructures of radio and television.

"The implementation of the Treaty will be the responsibility of joint institutions. In specific sectors conventions will be added to the Treaty to warrant France's contribution to the Caledonian state. This will apply in particular to the spheres of development and training.

"Towards what future?

"In adopting a new definition of its relations with New Caledonia - if the Caledonians so decide - France does not intend to give up her responsibilities. France suggests to the new state that she fulfil them differently: by contract and not by statute, by a convention, freely signed by both parties, instead of through a unilateral decision from the Republic.

"The commitment of France goes hand in hand with the definition of the conditions of French presence. Her presence and commitment are necessary to all: to France, to all the Caledonian communities and to the newState itself.

"This commitment would be expressed by cooperation agreements. These would aim at developing national resources in New Caledonia and at maximizing her economic potential through a coherent development programme.

"The French administration can draw up a national development programme, but only the new State will have the power to finalize it and to adopt it. France can and wants to utilize her finuncial,•commercial, technical and


- 10 -

human resources, in order to contribute to the development of the new State

- but these resources can only be put to good use if the new State has deter

mined its own obie 'tives and priorities and the areas in which French assis

tance would be requested.

"Several plains for New Caledonia have been adopted. They have not had a last

ing effect, owing to the lack of the people's will to support them - and mainly

because these plans were not elaborated by the New Caledonians themselves.

One can, however, refer to the main lines of these plans.

"First of all, training, because human capital is an essential factor to authen

tic and autonomous development. Primary education, while retaining all it has

gained, must be in line with the cultural realities of New Caledonia. Secondary

and technical education must be adapted to the specific needs of New Caledonia's

future. Tertiary and further education should be developed and orientated -

through the French system of diplomas - towards international realities from

which this country cannot stay isolated.

"To ensure the country's management and development, adult V± aining must also

be developed because New Caledonia cannot afford to wait for the younger

generation to administrate and develop the country. Those problems are crucial

- it can never be said enough. Cultural and economic development; the struggle

against social problems; employment and political responsibilities are of

major importance.

"Then agricultural development. It is sad to see that agricultural produc

tion represents only 3% of New Caledonia's gross national product. Since

the development of agriculture, forestry and cattle raising has not been

favoured, soil and climate have only been exploited up to 10 or 20% of their

potential. There has been a discouraging land rights system; an obvious ’

lack of technical training; too little cooperative organization and too few

food processing industries, as well as a tendency to import what could be

produced locally. As a result of all of these factors, forest and cattle

industries have to be thought over and, in many areas, have to be created.


- 11 -

A good amount of courage and determination will be necessary to carry out this task. The government of the new state might require the contribution of everyone: the contribution of non-Kanaks, who know and love this .land;the contribution of 3-ranee, which could be organized through cooperation agreements still to be defined. But: most of all everybody must agree to work together for agricultural development and land o.\yard nation.

"To develop the economy of the 'Grande Terre' (Main island) and the islands does not necessarily have to affect Noumea's economy. On the contrary, it would provide the capital city with a solid basis for development. A hinterland, acting as supplier and }anyor, could help the city and the harbour to develop the international and maritime role, which they have played and should continue to play. Thinking about Noumea is thinking about New Caledonia.There is no point in opposing the city and the desert ‘Grande Terre1, the 'Grande Terre' and the islands. It i.s with a united movement that New Caledonia will provide for its future.

"Three oilier priorities are: the exploitation of underground resources? the

exploitation of sea resources and the exploitation of natural sites for

tourism. In those three aieas linere are important resources that would

require a large labour force, which could be quickly trained. There is room

for Government initiatives and, to a great extent, for initiatives in the

private sector. An adequate legislation to promote the participation of

firms would in that sense be required.

"In all these areas, France will have its share. To complete the Treaty of

Association, France is ready to sign with the new State specific agreements

for cooperation. However, France must deal with a new country fully

responsible for the application of the Treaty and for its own future.

"Those are the suggestions I made to the New Caledonians. Tliey constitute

the basis of the report I intend to submit, in less than a month, to the

President of the Republic and to the Government. These propositions don't

exclude the possibility that the population of New Caledonian might, by

majority vole, decide to stay with the previous statute adopted on


- 12 -

6 September 1984. They open up new prospects that I believe to be

preferable.

"For some, the;, c* would be too much independence, and for others, too much

of France. The former will have in mind the risks they could face

for refusing the changes (life would not recommence, as security would

not be reestablished). The latter should ask themselves what an .i indepen

dent New Caledonia could become without France.

"Choose together the best way to establish an inde£>endent, democratic

Caledonia, strongly and by free choice associated with France; this being

the best way to establish in the South Pacific a French presence not dis

puted, but requested, and the best way to guarantee personal status and

rights to everyone.

"These main lines that I am submitting to you can only be discussed under

certain conditions: if public order, already improved, is fully reestab

lished and applied extensively to day-to-day lives; if all return to v.rork,

everyone being able to carry out their duties freely; if schools resume

normally, and if the communities become aware of the fact, despite their

distrustful and at times hostile relations, that their future depends upon

their aptitude to find common goals and to achieve them together, tomorrow

like yesterday, in a different way.

"You are responsible for your own future.

"As the French Governments delegate, I have drawn up for you this ambitious project. Both you and France deserve it. It is your concern. It is not an international problem, but a problem between France and part of France. The solution to this problem docs not depend upon the French internal policy debate. It goes further than that'. It relates to the qualifications that France and Caledonia would like to give themselves.

"It is your own affair.


- 13 -

"In this region New Caledonia lias a real opportunity, if she associates with France. This opportunity, however, must ho rightfully earned, not only through imagination and youthful dynamism, but also through wisdom and mutual respect.

"You have to decide today because tomorrow everything will be more difficult.

"Men, Women and Young People, all of you who live in this land, work on it,in your hands. Today you can decide together to and pr epar e f or your f uture -

NOTE ON LEMOINE STATUTE

The Leraoine statute concerning the status of New Caledonia and its dependencies was proclaimed by President Mitterrand in Paris on 6 September 1984. In keeping with the declaration at Nainville Les Roches of 12 July 1983, the statute has the object of giving the territory and its dependencies a new statute which involves a gradual progress towards self determination. Accordingly, the statute provides that at the end of five years, the population will be consulted by way of referendum in accordance with article 53 of the French Constitution so that they may exercise their right of self determination. (Article 1)The statute reserves to the French state its powers in a number of important matters - foreign relations, immigration, external communications, the currency, external financial relations, defence, maintenance of public order, nationality, civil law, civil law with the exception of civil procedure and customary law, commercial law, fundemental principles of labour legislation, justice and criminal law, the civil service, local administration, higher education and radio and television (Article 5) The French state is represented by the High Caimissicner who, ifi particular may proclaim a state of emergency and who has a power to refer acts of the local authorities where he doubts their legality for determination j by the administrative tribunal. (Article 119, 120) A territorial assembly elected by universal suffrage exercises all of the territorial powers except those specifically given to the Council of Ministers'or the President of the Government of the Territory (Articles 47, 63).

The President of the Government is elected by the territorial assembly by secret ballot (Article 8) who then present a list of between six and nine ministers to the territorial assembly for approval. (Article 10) The ministers need not necessarily be members of the territorial assembly (Article 11) The territorial assembly may pass a motion of censure of the Government of the territory. This may only be presented if it is signed by two-fifths of the members of the assembly. Only one motion of censure may be put each session (Article 105) If the motion of censure a new government must be elected (Article 106). The existing members of the government exercise interim authority. The total assembly may be dissolved by a decree of the Council of Ministers (Article 107) A third institution, the Assembly of the Pays has been established to permit Melanesian civilisation. If it delays giving its opinion, this is deemed to have been given after a delay of one month (Article 89,90) The President of this assembly assures liaison with other Melanesian carmuni- ties of the South Pacific.

Although e+em?1 relations are essentially matters for the French state, the President of the Territorial Government may propose to Paris the opening of negotiations with a view to concluding agreements with one or severed states or territories in relation to economic, scientific, technical or cultured matters of interest to fee territory. A representative of the Territorial Government is to participate in any such negotiations. However, the President of the Territorial Government may be authorised to jointly represent Paris with the High Commissioner in regional organisations in the South Pacific. The statute specifically provides that the

love it, your future lies overcome your differences

"I urge you to do so" ./,

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 335-------------------------------- ----- ■ ------------------------------------- ---- ----- 10R1

Territorial Government is to participate in the negotiation of agreements interesting New Caledonia and its dependencies in respect of international air and maritime relations. Paris may also permit the Territorial Government to negotiate economic, scientific, technical- and cultural agreements; this power does not extend to airline and maritime agreements, and any agreement entered intc under this delegation would need to be ratified in accordance with the French constitution (Article 41).

The Lemoine Statute., Loi number 84-821. of 6. September 1984 on the status of the Territory of New Caledonia and its dependencies, was published in the Journal Officiel de la Republique Francaise, 7 September 1984 pp 2840-2851.

LOI u° 84-821 du 6 septembre 1CB4 portent statut du territoire do la iJouvcl!o-Cal6donio ot d6por.- tinnees (i)

L’Assemblec nationals et ic S6nat ont delibcrc, L’Assemblcc nationale a adoptc,Lc Conseil constiiutionncl a declare contoiinc a la

Constitution,

Le President de la Republique promulgue la loi dont la tencur suit : .

Art. lcr. - La presente loi a pour objet, dans la ligne de la declaration du Gouverncment a Nainvillc-les-Rochcs on date du 12 juillcl 1983, de dotcr le icrritoire de la Nouvelle-Caledonie et dependances d’un nouveau statut evoiutif ct specifique. A Tissue d’un delai de cinq ans, !es populations de la Nouvelle-Caledonie et dependences seront consultees par voie de referendum conformemcnt aux dispositions de Particle 53 (alinea 3) de la Constitution.

II est cree un comite Etat-Territoire qui aura nolamment pour role' de preparer les conditions dans iesquelles sera exerce le droit & Pautodetermination conformemcnt aux dispositions du premier alinea. Cc comic* est compose, a parts egales, de representants de PEiat ct de representants du tcr- ritoirc. La repartition des representants du territoire sera proportionnelle au nombre de conseillcrs territoriaux appartenant a chacune des formations politiques siegeant a Passemblce territorialc. La composition, Porganisation et le fonctionnement de ce comile feront Pobjct d'un arrete du rninistre charge des departements et tenitoires d’outre*mer.

Art. 2. - Le territoire du la Nouvelle-Caledonie et dependances comprend la Nouvelle-Caledonie ou Grande- Terrc, Pile des Pins, Parchipel des Belcp, Huon et Surprise, les lies Chesterfield et les recifs Belione. les ties Loyaute (Mare, Lifou, Tiga et Ouvea), Pile Walpole, les lies Beautcmps-Beaupre et de PAstrobale, les lies Matthew et * IIFearn ou Hunter ainsi que les Hots prochcs du littoral.

II constitue au sein de la Republique francaise, conformement & Particle 72 de la Constitution, un territoire d’outre-mer dote de la personnalite jnridique et de Pauto- nomie interne.

II s'administre Pibrement par ses representants clus qui gerent les affaires du territoire dans les conditions prevues par la presente loi. .

II est represents au Pariement de la Republique et au Conseil economique et social dans les conditions definies

librement les sicnes distinctifs permettant de marquer sa personnalite dans les manifestations publiques et officielles aux cotes des emblemes de la Republique.

Le haut-commissaire de la Republique est deposilaire des pouvoirs de la Republique, representani du Gouverncment et chef des services de PEtat.

Art. 3. - Le territoire de ia Nouvelle-Caledonie et dependances comporte six circonscriptions denommees pays dont la delimitation dent compte des aires coutu- midres et de leurs liens economiques, sociaux ct culturels.

Ces pays sont : .1° Le pays Hoot Waap qui recouvre le territoire des

communes de Belep, Poum, Ouegoa, Kaala-Gomen, Voh, Koumac, Pouebo ct Hienghene ;

2° Le pays Paci Camuki qui recouvre le territoire des communes de Ponerihouen, Poindimie, Touho, Kone et Poueinbout ;

3° Le pays Ajie Aro qui recouvre le territoire des communes de Houailou, Moindou, Bourail et Poya ;

4° Le pays Tei Araju qui recouvre le territoire des communes de Farino, Sarramea, La Foa, Bouloupari, Thio et Canala ;

5° Le pays Dumbea qui recouvre le territoire des communes de Pile des Pins, Vate, Mont-Dore, Dumbea, Paita ct Noumea ; •

6° Le pays des Loyaute qui recouvre le territoire des communes de Mare, Lifou et Ouvea.

Le decret en Conseil d’Etat poriant creation d'une ou plusieurs nouveiles communes fixe cgalcmenl la noiivclle delimitation des pays resultant de cette ou de ces creations.

Art. 4. - Les autorites du territoire sont compctcntes dans toutes les matieres qui nc sont pas reservees a PF.tat en vertu des dispositions de Particle 5 de la presente loi.— Art. 5. - Les autorites de PEtat sont compctentes dans les matieres suivantes :

1° Relations exterieures, sans prejudice des dispositions de Particle 41 ;

2° Controlc de rimriiigration et controle des changers ;

par les lois organiques.Le territoire determine

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3° Communications exterieures en maticre dc navigation, ! desserlcs maritime et aerienne ei de posies et lelecommuni- I cations, sous reserve des dispositions de Panicle 29 (9°).; |

4° Exploration, exploitation, conservation et gestion des i ressources naturellcs, biologiques et non biologiqnes de la I zone economique exclusive de la Republique, compte tenu des dispositions de Particle 64 ; ,

5° Monnaie, Trcsor, credit et changes ;6° Relations financieres avec Petrangcr et commerce

exiericur, sous reserve des dispositions des articles 2S (9°),29 (1°) et 31 ; I7° Defense au sens de 1> nuance 59-147 du 7 jan- I

vici !'•'•:• 9 portent organ is:'* ion gun-male de la defence : * importation, commerce et exportation de materials mili- ; takes, d’armes et de munitions de premiere, deuxieme, troi- I sieme et quatrieme categories, matieres premieres strale- j giques idles qu’clles sont definies pour Penscmble du tenitoire de la Republique ;

8° Maimien de Pordre et security civile ;9° Nationality et regies coneernant Petal civil ;10° Droit civil, a Pexclusion de la procedure civile et du

droit couiumier ; dioit commercial ;11° Matieres regies par les ordonnances n° 82-877 insti-

tuant des assesseurs coutumiers dans le territoire de la | Nouvelle-Caledonie et dependances au tribunal civil de j premiere instance et a la cour d’appel, n° 82-878 relative au t devdoppement economique de la Nouvelle-Caledonie, j n° 82-879 portent creation d‘un office culturel, scientifique | et technique canaque, n° 82-880 relative k Pamenagement | foncier, k Petablissemem rural et 4 la reconnaissance des I droits coutumiers sur le sol de la Nouvelle-Caledonie et j dependances, en date du 15 octobre 1982, et par les ordon- \ nances nc 82-1115 sur Penergie en Nouvelle-Caledonie et ! n° 82-1116 relative a la reglementation miniere cn | Nouvelle-Caledonie, en date du 23 decembre 1982, ainsi | que la reglementation miniere conformemcnt k la legislation i en vigucur ct sous reserve des dispositions de Particle 37.

L’office de developpement de l’interieur et des lies, l’cf- | fee culture!, >cieriiifiquc ct technique canaque et Poffiice foncier de la Nouvelle-Caledonie et dependances crees par les ordonnances susvisees du 15 octobre 1982 pourront etre transferes au territoire si celui-ci en fait la dernande ;

12° Principes directeurs du droit du travail ;13° Justice et organisation judiciaire, a Pexclusion des

frais de justice.; droit penal, sous reserve des dispositions des articles 33, 66, 67 et 68 ; procedure penale, a Pexclusion de ia reglementation penitentiaire et de la reglementation relative a la liberie surveillee des mineurs ;

14° Fonction publique d’Etat ;f5° Administration communale el controle administratif

et financier des communes et de leurs etabiissements publics ;

16° Enseignement du second cycle du second degie, sous reserve des dispositions de Particle 28 (3° et 4°) ; par decret en Conseil d’Etat, Penseignement du second cycle du second degre sera transfere au territoire sous reserve que celui-ci en fasse la dernande ; .

17° Enseignement supericur, sous reserve des dispositions de Particle 28 (3° et 4°) ; recherche scientifique, sans prejudice de la facult6 pour le territoire d’organiser ses propres services de recherche ;

18° Communication audiovisuelle ; toutefois, le territoire, sous reserve des missions confiees a la Haute Autorite par la loi n° 82-652 du 29 juillet 1982, a la faculte de creer unc societe de production d’emissions k caractere social, culturel et educatif pouvant passer pour leur diffusion des conventions avec des societes d’Etat.

La liste des services d’Etat dans Ic territoire, leur organisation, le domaine immobilier de PEtat ainsi que son emprise sont fix£s par decret en Conseil d’Etat. Jusqu’A rintervention de ce decret, Ics services de PEtat continuent dc bencficier des prestations de toute nature que le territoire fournit actuellement au fonctionnement de ces services.

TITRE /" ,

DES INSTITUTIONS DU TERRITOIREArt. 6. - Les institutions du territoire comprcnnent :

A. - Au niveau territorial :1° Lc gouvernement du territoire :2° L’assembiec tcrritoriale ;3° L’asscmb'ee des pays ;4° Le comite d’expansion economique.

B. - Au niveau regional, les conseils de pays.

CHAPITREDu gouvernement du territoire

. Section IComposition et formation

Art. 7. - Le gouvernement du territoire comprend un president et six a neuf membres. L’un d’eux porte le litre de vice-president.

Le gouvernement du territoire constitue le conseil des ministres du territoire. Lc president ct le vice-president du gouvernement du territoire assurem respectivcment la presidency et la vice-presidence du conseil des ministres du territoire.

En cas d’absence ou d’eirmhehement du president du gouvernement du territoire, le /ice-president du gouvernement du territoire exerce les pouvoirs conferes par la preseme loi au president du gouvernement du territoire.

Art. 8. - Lc president du gouvernement du territoire est elu par Passemblee territoriale parmi ses membres au scrutin secret. L’assemblee territoriale ne peut valablement deiiberer que si les trois cinquiemes de ses membres sont presents. Si cene condition n’est pas remplie, la reunion sc tient de plain droit trois jours plus tard, dimanche et jours feries non compris, quel que soit le nombre des membres de Passemblee presents. Chaque membre de Passemblee territoriale dispose d’un suffrage.

Si, apres deux tours de scrutin, aucun candidat n'obtient la majorite absolue des membres composant Passemblee, il est procede a un troisieme tour et Pelection a lieu k la majorite relative. En cas d’egalite des voix, Pelection est acquise au benefice de Page.

Pour le premier tour de scrutin, les candidatures sont remises au president de Passemblee territoriale au plus tard la veille du jour fixe pour le scrutin. Des candidatures nou- velles peuvent etre presentees apres chaque tour de scrutin. Elies sont remises 2u president de Passemblee territoriale au plus tard une heure avant Pouverture de chaque tour de scrutin.

Chaque candidat expose son programme devant Passem- b!6e avant Pouverture de chaque tour de scrutin.

Art. 9. - Le president de Passemblee territoriale pro- clame les resultats de Pelection du president du gouvemement du territoire et les transmet immediatement au haut- commissaire et au president de Passemblee des pays.

Art. 10. - Dans les cinq jours suivant son election, le president du gouvernement du territoire presente k Passemblee territoriale la liste des ministres. II indique le nom du vice-president charge d’assurer son interim en cas d’absence ou d’empechement.

L’assemblee territoriale se prononce sur cette liste, dans les memes conditions que celles prevues k Particle 8, alinea ler.

La nomination des ministres prend effet si la liste recueille la majorite des suffrages des membres composant Passemblee. •

Les attributions de chacun d’entre eux sont definies par arrete du president transmis au haut-commissaire et au president de l’assemblee territoriale.

Art. 11. - Les ministres du territoire sont choisis parmi les membres de Passemblee territoriale ou en dehors de celleici. #

Les membres du gouvernement du territoire doivent cire ages de vingt-trois ans au moins et etre domieilies depuis cinq ans au moms dans lc territoire. Us doivent, en outre, satisfaire aux conditions, aulres que d’age ct de domicile, requises pour Pelection des membres de Passemblee territorialc.

Tout membre du gouvernement qui, pour une cause survenue au cours de son mandat, se trouverait dans une situation contrairc aux dispositions des articles 12 ct 14 ou

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serait frappe de Tune des incapacijes qui font pcrdre la qualite d'electeur, est declare demissionnaiie par an etc du haut-commissaire.

Art. 12. - Les membres du gouvernement du territoire sont sounds aux regies d'incompatibilite applicablcs aux membres dc Passemblee territoriale. a

Les fonctinns de membre du gouvernement sont, en outre, incompatibies avec la qualite de conseillcr general, de conseillcr regional, de membre d’unc assemblee d’un icrritoire d’outre-mer, dc membre d’un conseil de gouvernement d'un territoire 2 >utre-:r,er ou de membre de Passem- blee des pays.

Les fonctions de inembre du gouvernement sont eguL- ment incompatibles avee les fonctions et activates mentionnees a Particle L.O. Mb du code electoral.

Art. 13. - Le president du gouvernement du territoire, au moment de son election, les ministres du territoire, au moment de leur designation, lorsqu’ils se trouvent clans Pun des cas d'incompatibilite prevus a Particle piccedent, doivent declarer leur option au haut-commissaire dans le deiai d'un mois qui suit leur election.

Si la cause de Pincompatibilite est posterieure a Pelection, le droit d’option prevu a Palinea precedent est ouvert dans le meme deiai.

A defaut d’avoir exerce leur option dans les delais, les mernbres du gouvernement du territoire sont reputes avoir renonce aux fonctions de membres du gouvernement du territoire.

L'option exercce par le membre du gouvernement du territoire est constatee par un arrete du haut-commissaire. Cet arrete est notifie au president du gouvernement du terri- toirc, au president de Passemblee territoriale, au president de Passemblee des pays et au ministre interesse.

Art. 14. - II est interdit a tout membre du gouvernement du territoire d’accepter, en cours de mandat, une fonction de membre du conseil d’administration ou de surveillance ou toute fonction de conseil dans Pun des etablissements, socictes ou entreprises mentionnes a Panicle L.O. 146 du code, electoral. Cette interdiction ne s’applique pas des iors qu’il siege en qualite dc representant du territoire ou de representant d’un etablissement public territorial et que ces fonctions ne sont pas remunerees.

Art. 15. - Lorsqu’un membre du gouvernement du territoire qui, par suite de son election en qualite de president du gouvernement du territoire ou par suite de sa designation en qualite de ministre avait renonce a son mandat de membre de Passemblee territoriale quitte s^s fonctions au

# sein du gouvernement du territoire, il retrouve son si£ge k Passemblee territoriale aux lieu et place du dernier membre de Passemblee territoriale qui avait ete elu sur la memc liste et appele a sieger a sa suite.

Art. 16. - Le membre du gouvernement du territoire qui a la qualite d’agent public au moment de son election ou de sa nomination est place en dehors du cadre de Padmi- nistration ou du corps auquel il appartient dans les conditions prevues par le statut qui le regit. Sous reserve dcs dispositions de Particle 15, il est, k Pexpiration de son mandat, reintegre, eventuellement en surnombre, dans le cadre ou dans lc corps auquel il appartient.

Art. 17. - Le president du gouvernement du territoire restc cn fonction jusqu'a Pexpiration du mandat de Passem- blec qui Pa elu, sous reserve des articles 18, 106 et 107.

' Art. 18. - La demission du gouvernement du territoire est presentee par son president au president de Passemblee territoriale. Cclui-ci en donne acte, en informe sans deiai le haut-commissaire et le president de Passemblee des pays.

Art. 19, - En cas de demission ou de deeds du president du gouvernement du territoire ou lorsque son absence ou son empechemcnt exccde une periodc de trois mois a partir de Pexercicc de Pinterim par le vice-president, le gouvernement du territoire est demissionnaiie de pkin drMt et il est pourvu a son (-emplacement dans les conditions prevues aux articles Sail.

Art. 20. — La demission d'un ministre est presentee au president du gouvernement du 'territoire, lequcl en donne acte et en informe le president de Passemblee territoriale, le president de Passemblee des pays et le haut-commissaire.

Au cours de son mandat, le president du gouvernement du territoire peut mettre fin par arrete aux fonctions d’un scul ministre ct proceder eventuellement dans les memos formes a son remplacemcnt. Cet arrete est notifie au ministre interesse et transmis au president de Passemblee territoriale ainsi qu’au haut-commissaire.

Toute autre revocation de membres du gouvernement conduit le president du gouvernement du territoire a soumettre a Papprobation dc Passemblee territoriale la liste de Pensemble des ministres du territoire dans les conditions prevues a Particle 10.

Art. 21. - L’election du president du gouvernement du territoire a lieu dans le? quinze jours qui suivent Pouverture de la premiere session dc i assemblee territoriale reume conformement aux dispositions de Panicle 50.

Dans les cas prevus aux articles 18, 19 ct 105, Passemblee territoriale elit le president du gouvernement du territoire dans les quinze jours qui suivent la notification de la demission du gouvernement du territoire ou la notification du deces du president du gouvernement du territoire ou le vote de la motion de censure. Si Passemblee n’est pas cn session, elle se reunii dc plein droit en session extraordinaire.

Jusqu’a Pelection du president du nouveau gouvernement du territoire, les membres du gouvernement du territoire assurent Pexpedition des affaires courantes.

Section IIRegies de fonctiomiement

Art. 22. - Le conseil des ministres du territoire tient seance au chef-lieu du territoire. II est convoque au moins trois fois par mois par son president, il peut fixer pour ccrtaines seances un autre lieu dc reunion.

Art. 23. - Le president du gouvernement du territoire arrete l’ordre du jour du conseil des ministres. Il en adresse copie au haut-commissaire avant la seance. Sauf urgence, cette copie doit etre parvenue au haut-commissaire vingt- quatre heures au moins avant la seance.

Les questions sur lesquelles l’avis du territoire est dernande par le ministre charge des territoires d’outre-mcr ou les questions de la competence de PEtat sur lesquelles l’avis du territoire est dernande par le haut-commissairc sont inscrites a Pordre du jour du premier conseil des ministres qui suit la dernande adressee par le haut- commissaire au president du gouvernement du territoire.

Le haut-commissaire est entendu par le conseil des ministres du territoire sur dernande du ministre charge dcs territoires d’outre-mer, ou k sa dernande, lorsque le conseil des ministres est saisi de questions visees a Palinea precedent. ^

Par accord du president du gouvernement du territoire et du haut-commissaire, celui-ci est entendu par le conseil des ministres du territoire.

Le secretariat et la conservation des archives du gouvernement du territoire sont assures par les soins de son president.

L’assemblee territoriale vote les credits necessaires au fonctionnement du gouvernement du territoire. Ces credits sont a la charge du budget du territoire et constituent une depense obligatoire.

Art, 24. - Les seances du conseil des ministres sont pre- sidees par le president du gouvernement du territoire ou par le vice-president ou, cn Pabsence de ce dernier, par un ministre designs k cet effet par lc president du gouvernement.

Le conseil des ministres ne peut valablcmcnt delibercr que sur les questions inscrites a Pordre du jour.

Art. 25. - Les seances du conseil des ministres ne sont pas publiques.

Les membres du gouvernement du territoire sont tenus de gardcr le secret sur les fasts dont ils auraieni cu connais- snnee en raison de leurs fonctions.

Les decisions du conseil des ministres sont portces k la connaissancc du public par voie de communique.

Art. 26. - Les membres du gouvernement du territoire peryoivent mensuellement une indemnitc dont le montanl esi fixe par Passemblee territoriale par reference au traite-

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ment des agents publics servant clans le territoire. L’asscm- blce territoriale fixe egalemcnt les conditions de remboursc- ment des frais de transport et de mission des membres du gouvernement, le montant d'une indemnity forfaitaire annuelle pour frais de representation, ainsi que le regime des prestations socialcs. |

Le membre du gouvernement du territoire peryoit son j indemnite pendant trois mois apres ia cessation de ses fonctions, a moins qu'i! ne ltd ait ete fait application dcs dispositions de Particle 15 ou qu'il n’ait repris auparavant une activile remuneree.

3cchon IIIAttributions du gouvernement du territoire et de ses membres

Art. 27. - Le conseil des ministres du territoire arrete les projets de deliberations a soumettre k Passemblee territo- riaic, notamment le projet de budget.

Il arrete cgalement les mesures duplication qu’appelle la mise en ccuvre des deliberations de Passemblee territo- I riale. *

Art. 28. - Le conseil dcs ministres du territoire fixe les regies applicables aux matieres suivantes :

1° Organisation dcs sendees et etablissements publics territoriaux ;

2°^Enseignement dans les etablissements relevant de !a competence du territoire ;

3° Enseignement facultatif des langues locales dans tous les etablissements d’enseignement ;

4° Regime des bourses, subventions, secours et allocations d’enseignement alloues sur les fonds du budget du territoire ;

5° Reglementation des poids ei mesures et repression des fraudes ;

6° Organisation generate des foires et marches d'intcret territorial ; .

7° Reglementation des prix el tarifs et reglementation du commerce intcrieur :

8° Tarifs et regies d’assietle et de recouvrement des taxes pour sendees rendus ;

9° Restrictions quantitatives a Pimportation ;10° Agrement des aerodromes prices. .Art. 29. - Le conseil des ministres du territoire :1° Fixe le programme annuel d’importation et determine

le montant annuel d’allocation de devises dernande k PEtat ;

2° Cree et organise les organismes assurant, dans le territoire, la representation des interets economiques ;

3p Arrete les programmes d'etudes et de traitement des donnees statistiques ;

4° Arrete les cahiers des charges des concessions de service public territorial ;

5° Determine la nature et les tarifs des prestations des services publics territoriaux et des cessions de matures, matcriels et materiaux ;

6° Autorise la conclusion des conventions entre le territoire et ses fermiers, concessionnaires et autres contractants ;

7° Determine Pobjet et les modalites d’cxecution ou d’exploitation des ouvrages publics et des travaux publics territoriaux ;

8° Fixe Pordre dans lequel seront executes les travaux prtvus au budget territorial ;

9° Arrete le programme des vols nolises dans le respect des quotas et tarifs fixes par PEtat.

Art. 30. - Le conseil des ministres du territoire nomine les chefs dc services territoriaux, les dirccteurs d'offices ou d’etablissemcnts publics territoriaux, les commissaircs du gouvernement du territoire auprts desdits offices et ctablis- sements publics ct les repre*entants du territoire au conseil de surveillance de l’institut d’emission d’outrc-mer.

Art. 31. - Le conseil des ministres du territoire ins?n*i! tous les projets d’investissements directs etrangers a Nouvelle-Caledonie et dependances.

Le conseil des ministres. dans le cadre des dispositions de Particle 5, examine les declarations prealabies ou delivre les aulorisations prealabies relatives aux projets d’investissements directs etrangers en Nouvelle-Caledonie ct depen

dances d’un montant inferieur k 55 millions de francs concernant des activites industriellcs, agricolcs, commer- ciales ou immobilieres excrcees sur ie seul territoire de la Nouvelle-Caledonie et dependances ct dcstinees a mettre en valeur les resources locales, a developper Pactivite economique et a amciiorcr la situation de Pemploi. Sont cxclues les operations relatives a des sociites ou entrenrises financieres ou dc portefeuille, ou dont i’objet social ou Pactivite serait de nature a rnenacer Pordre public ou a faire echec k {’application dcs lois ct regimentations franyaises.

Art.' 32. En cas de circonstanccs exccptionnelles, leconseil des ministres du territoire peut decider de suspends ou dc redvire. a litre provkoire, tous droits fiscaux d’entree et de sortie et tous droits indirects liappant les articles a ia production, a la circulation ou k la consomma- tion.

Ces decisions sont immediatement soumises a la ratifica- lion de Passemblee territoriale lorsque celle-ci est en session. Dans ic cas comraire, la commission permanente en est saisie ct fait rapport a Passemblee territoriale des la session suivame. La deliberation de Passemblee territoriale prend effet a compter de Pate a laquelle a ete prise la decision du conseil des ministres du territoire.

Si la decision de suspension ou de reduction n’est pas ratifiee par Passemblee territoriale, son application cesse k compter de la decision de Passemblee.

Art. 33. - Le conseil des ministres du territoire peut assortir les infractions aux reglementations qu’il edicte de peines d’emprisonnement et cPamende n’exccdant pas le maximum preen par les articles 465 et 466 du code penal ou de Pune de ces deux peines sculement et respectant la classification des contraventions prevue par la deuxieme partie de ce code. Le produit de ces amendes est verse au budget du territoire.

Art. 34. - Les projets d’extension de la legislation metropolitaine et les projets de loi de ratification de conventions internationales traitant de matieres ressortissant k la competence territorial^. sont soumis pour avis au conseil des ministres du territoire.

Le conseil des ministres du territoire est, en outre, obli- gatoirement consulte par le ministre chargt des territoires d’outre-mer sur les questions ou dans les matieres suivantes :

1° Modification des tarifs postaux et des taxes ttlepho- niques, teiegraphiques ct radioelectriques du regime international ;

2° Definition du reseau des etablissements d’enseignement qui relevent de PEtat et adaptation de leurs programmes pedagogiques ;

3° Securite civile ;4° Decisions relatives aux projets d’investissements

directs etrangers en Nouvelle-Caledonie ne relevant pas de la competence du territoire cn vertu de Particle 31 ;

5° Accords de peche, conditions de la desserte aerienne internationale et de cabotage avee le territoire ;

6° Controle de l’immigration et des etrangers, y compris la delivrance de visas pour un sejour superieur a trois mois ;

7° Ragles concernant Petat civil ;8° Creation, suppression, modification des subdivisions

administrative^ tcrritoriales, et nomination par le Gouveme- ment de la Republique des chefs de subdivision. ’

Le conseil des ministres du territoire dispose d’un dfclai d’un mois pour emettre son avis.

Art. 35. - Le conseil des ministres du territoire estinforine des decisions prises par les autorites de la Republique en maticre monetaire.

11 reyoit communication des budgets des communes du territoire apres leur adoption par les conscils inunicipaux.

11 peut emettre des veeux sur les questions relevant dc la competence de PEtat.

Art. 36. - Le conseil des ministres du territoire estassiste par un comite consultatif du credit compost, k parts cgales, de representants de PEtat, du territoire ct d’organisations piolessionnelies et syndicates interessecs. Un decret en Conseil d’fcTat en determine'les regies d’organisation et de fonctioanement.

2C44 1 coplomlM»438+

Art. 37. - Lc conseil des ministres du territoire est egalement assiste par un conseil consultatif des mines compose, A parts cgales, de representants de i’Etat, du ten noire ct d’organisations professionnelles ct syndicales interessees. IJn decret cn Conseil d'Etat en determine les regies d'organisation et de fonctionnement.

Art. 38. - Lc president du gouvernement du territoire est lc chef de l’executif territorial et, a ce litre, represente le territoire.

Le president du gouvernement du territoire definit les attributions de chaque ministre et deiegue a chacun d'eux les pouvoirs correspondants. Il dirige et coordonne Taction dcs ministres. Ses uaes >cm cuniresigncs, le cas cciicaat, i par les ministres charges ue U ur execution. j

Art. 39. - Les decisions du conseil des ministres du ter- ritoirc sont executoires de plein droit des qu'il a ete pro- ! cede a leur publication ou a leur notification aux interesses I ainsi qu’a leur transmission au haut-commissaire par le pre- | sident du gouvernement.

Art. 40. - Le president- du gouvernement du territoire j veille a Texecution des deliberations de l'assemblee tciriio- i dale et de sa commission permanente. I

Art. 41. - Sous reserve des engagements alternationsux et des dispositions legislatives d’application, lc president du gouvernement du territoire peut proposer au Gouvernement de la Republique Touvcrture de negociations tendant a la conclusion d'accords avec un ou plusieurs Etats ou terri- | toires de !a region du Pacifique dans les domaines economique, scientifique, technique et culture! interessant le territoire. Un representant du gom/ernement du territoire participe a ces negociations.

Il peut egalement etre autorise a representer conjointe- rnent avec le haut-commissaire le Gouvernement de la Republique au sein d’organismes regionaux du Pacifique Sud.

Eh matiere de relations aeriennes et maritimes internationales, lc gouvernement du territoire participe a la negocia- lion des accords interessant ia descent de ia Nouveile- i Caledonie et dependances.

Dans le Pacifique Sud, les autorites de la Republique peuvent confer au gouvernement du territoire les pouvoirs lui permettant de negocier des accords traitant de matieres ressortissanl a la competence du territoire dans les domaines economique, scientifique, technique et culture!, a Pexclusion des accords mentionnes a Talinea precedent. Les accords ainsi negocids par le territoire sont soumis a ratification ou approbation dans les conditions prevues aux articles 52 et 53 de la Constitution.

Art. 42. - Le gouvernement du territoire peut deleguer a son president le pouvoir de prendre, avec le contreseing du ministre charge de Texecution, des decisions dans les . domaines suivants : ‘

1° Dans les conditions ct limitcs fixees par Passemblee territoriale, administration des interets patrimoniaux et domaniaux du territoire : acquisitions, ventes, echanges ou baux et locations ;

2° Acceptation ou refus des dons et legs au profit du territoire ;

3° Actions A intenter ou a soutenir au nom du territoire et transactions sur les litiges ;

4° Codification des reglementations territoriales et mise A jour annuelle dcs codes.

Art. 43. - Le president du gouvernement du territoire est le chef de Padminisiration territoriale et Pordonnateur du budget du territoire. 11 peut deleguer ses pouvoirs d'ordonnateur, a Pcxception de ceux prevus au dernier alinea de Particle 123. *

Dans les matieres de la competence du territoire, il dispose des agents de PEtat dans les conditions prevues a Particle suivant. ’

Pour la preparation et Texecution des deliberations de Passemblee territoriale et du conseil des ministres du territoire, il dispose des services dc PEtat dans les memos conditions.

Art. 44. - La coordination outre Paction des services d** PEtat ct ceux du territoire est assurec conjointement par le haut-commissaire et lc president du gouvernement du territoire.

Des conventions entre PEtat et le territoire, signees par le haut-commissaire ct lc president du gouvernement du territoire, fixent les modalites de mise a la disposition du territoire, en taut que dc besoin, dcs agents et des services de i’Ltat.

Dcs conventions entre PEtat et le territoire fixent les modalites des concours financiers et techniques que PEtat peut apporter aux investissements economiques ct sociaux ou aux programmes educatifs du territoire.

Au cas ou les besoins des services publics territoriaux rendent necessaires les concours d’organismes ou d'etabhs- sements publics metropolitans, les modalites de ces concours soht fixees par des conventions passees entre eux et le territoire.

Le president du gouvernement du territoire signe, au nom du territoire, les conventions mentionnees aux trois alineas precedents.

Art. 45. - Les membres du gouvernement du territoire adressent aux chefs des services territoriaux et, en application des conventions mentionnees a Panicle precedent, aux chefs des services de PEtat toutes instructions necessaires pour Texecution des laches de la competence du territoire. 11s sont autorises, dans les merres conditions, a leur donner delegation de signature.

Art. 46. - Le gouvernement du territoire, a son initiative, ou a la dernande de Passemblee territoriale et de l'assemblee des pays, peut saisir le ministre charge des territoires d’outre-mer de toute question d’interet territorial.

Le ministre charge des territoires d’outre-mer accuse reception dans les quinze jours et fixe le deiai dans lequel i! apportera une reponse au fond.

CHAP1TRE III>e Passemblee territoriale ’

Section IComposition et formation

Art. 47. - L’assemblee territoriale est elue au suffrage universel direct.

La ioi determine les modalites des elections, le nombre et la repartition par circonscription des sieges de Passemblee territoriale et la duree du mandat dc ses membres, qui sontreeiigibles.

Un decret en Conseil d’Etat fixe Porganisation des operations electorates.

Art. 48. - Lorsqu’un rnembre de Passemblee territoriale aura manque unc session ordinaire sans excuse legitime admise par Passemblee territoriale, il sera declare demissionnaire d'officc par Passemblee, dans la derniere seance de la session.

Lorsqu’un membre de Passemblee territoriale donne sa demission, il Padresse au president de Passemblee. Celui-ci en informe le president du gouvernement du territoire, le president de Passemblee des pays ct le haut-commissaire.

Art. 49. - Les elections peuvent etre contestees par tout electeur de la circonscription electorate, par les candidats, par les presidents du gouvernement du territoire, de Passemblee territoriale et de Passemblee des pays et par le haut-commissaire devant le tribunal administrate de la Nouvelle-Caledonie et dependances.

Section IIFonctionnement • •

Art. 50. - L’assemblee territoriale stege au chef-lieu du territoire.

Elle se reunit de plein droit le premier jcudi qui suit Pelection de ses membres.

Art. 51. - L'assemblee territoriale tient chaque annee deux sessions ordinaires sur convocation de son president. La premiere, ditc session administrative, s’ouvre entre lc ler mars et lc 30 avril. La scconde, ditc session budgetaire, s’ouvre entre le icr septembre et le 31 octobre.

L'assemblee territoriale fixe, par deliberation, la date d’ouverturc et la duree de ses sessions ordinaires. Cette duree ne peut exceder deux mois.

Si elle se separe sans, avoir fixe la date d’ouverture de sa prochaiue session ordinaire, cette date est delerminee par la commission permanente. .

■septomb 2845+*-4444- rnm^m^m^s 340

Au cas 011 Passemblee ne s’est pas reunie au cours de Pune des periodes prevues pour ses sessions, le haut- commissaire pent modifier par arrete, pits apres avis du president du gouvernement du territoire, ia periode nonnaie de session ct convoquer Passemblee en session ordinaire.

Les sessions sont ouvertes et closes par lc president de Passemblee.

Ant. 52. - L’assemblee territoriale se reunit en session extraordinaire, sur un ordre du jour fixe par la convocation, a la dernande, presentee par ecrit au president de Passemblee soit de la majorite des membres composant Passemblee, soit du president du gouvernement du territoire, suit, mi cas de circonstances wcepticnnolles, du haut- commissaire.

La duree de chaque session extraordinaire ne peut exceder un mois.

La duree cumulce des sessions extraordinaires, tenues entre deux sessions ordinaires, ne peut exceder deux mois.

Les dispositions des deux alineas precedents ne sont pas appHcables aux sessions extraordinaires tenues a la dernande du haut-commissaire. '

Art. 53. - L’assemblee territoriale elit annnellement son president et son bureau dans les conditions fixees par son reglernent interieur. Le vote est personnel.

Lors de sa premiere reunion, un bureau provisoire est constitue sous la presidence du doyen d’age, assiste des deux plus jeunes membres de Passemblee presents, pour proccder a Pelection du president de Passemblee territoriale.

Aucun debat ne peut avoir lieu sous la presidence du doyen d’age.

Le president a seui la police de Passemblee dans Pen- ceinte de celie-ci. II peut faire expulser de la salle des seances toute personne qui trouble Pordre. En cas de crime ou de delit flagrant, il peut faire proceder a des arresta- tions. Il en dresse proces-verbal et le procureur de la Republique en est immediatement saisi.

Ln cas de besoin, le president de Passcmb’ee territoriale peut faire appel au haut-commissaire pour s’assurer le concours de la force pubiique.

Art. 54, ~ Les deliberations de Passemblee territoriale ne sont valables que si plus de Ia moitie des membres en exercice sont presents. Si le quorum n’est pas atteint au jour fixe pour Pouverture de la session, celle-ci est renvoyee de plein droit au troisieme jour qui suit, dimanche et jours feries non compris.

Les deliberations sont alors valables quel que soit le nombre des membres presents. La duree legale de Ia session court a partir du jour fixe pour la seconde reunion.

Lorsque, en cours de seance, les membres presents lors d’une deliberation ne forment pas la majorite des membres en exercice, la deliberation est renvoyee au lendemain, dimanche et jours feries non compris ; elle est alors valable quel que soit le nombre des presents.

Dans les cas prevus aux deux precedents alineas, les noms des absents sont inscrits au proces-verbal.

Art. 55. - L’assemblee territoriale etablit son reglernent interieur. Ce reglernent fixe les modalites de son fonctionnement qui ne sont pas prevues au present titre.

Il peut etre sounds pour avis au tribunal administrate de la Nouvelle-Caledonie ct dependances par le president de l’assemblee territoriale. II peut etre defere par le haut- commissaire ou par tout membre dc Passemblee au tribunal administrate de la Nouvelle-Caledonie et dependances.

Art. 56. - L’assemblee fixe Pordre du jour de ses deli- b6rations et etablit un proces-verbal de chacune dc ses seances.

Les proctfs-verbaux sont signes par le president de Passemblee territoriale.

Art. 57. - Est nullc toute deliberation dc Passemblee territoriale, quel qu’en soit Pobjet, prise hors du temps des sessions ou hors du lieu des seances.

Art. 58. - Les membres dc Passemblee territoriale per- qoivent mensuellement unc indemnite dont lc montant est fixe par Passemblee par reference au traitement des agents publics servant dans le territoire. ,

Cette indemnite ne peut se cumulcr avec Pindemnite allouee aux membres du Parlement et du Conseil economique ct social.

L’assemblee territoriale fixe egalement les conditions de remboursement des frais de transport et de mission ct le regime des prestations sociales des membres de l’assemblee, ainsi que lc montant de Pindemnite forlaitaire pour frais de representation eventuellement allouee au president de Passemblee et au president de la commission permanente.

L’assemblee territoriale prevoit, par son reglernent intc- ricur, les conditions dans lesquelles tout ou partie de Pindemnite visee au premier alinea du present article sera retenue lorsqu’un membre de Passemblee aura ete absent sans excuses valables a un certain nombre de seances de l’assemblee ou de ses commissions. •

Art. 59. - L’assemblee territoriale elit chaque annee, en son sein et a ia representation proporiionr.eilc des groupcs, une commission permanente composee de sept a onze membres. Lc vote est personnel. Le fonctionnement de cette commission est determine par le reglernent interieur de Passemblee.

Art. 60. - La commission permanente elit son president, son vice-president et son secretaire. Ce vote est personnel.

La commission permanente fixe son ordre du jour.La commission permanente ne deiibere valablement que

lorsque la majorite de ses membres assiste a la seance. Ses deliberations sont prises a la majorite. En cas de partage, la voix de son president est prepondcwinte.

I! est dresse proces-verbal des oMiberations. Les proces- verbaux font mention du nom des membres presents.

Art. 61. - Les deliberations de Passemblee territoriale et de la commission permanente sont transmises sans deiai au haut-commissaire.

Elies sont executoires de plein droit des leur publication ou leur notification aux interesses.

Art. 62. - Les deliberations adoptees par l’assemblee territoriale ou sa commission permanente en matiere de contributions directes ou taxes assimilees au cours d’une session commencee avant le lCf janvier sont applicables k compter de cette date meme si elles n’ont pas etc publiees avant celle-ci.

Section IIIAttributions de l'assemblee territoriale

et de la commission permanente

Art. 63. - Toutes les matieres qui sont de la competence du territoire relevent de Passemblee territoriale, a l’exception de celles qui sont attributes par la presente loi au conseil des ministres du territoire ou au president du gouvernement du territoire.

Art. 64. - Dans la zone economique exclusive de la Republique au large des cotes de la Nouvelle-Caledonie et. dependances et sous reserve des engagements internatio- naux, des dispositions legislatives prises pour leur application et du 4° de Particle 5 de la presente loi, Passemblee territoriale est competente pour Pexploration, l’exploitation, la conservation et ia gestion des ressources naturelles, biologiques et non biologiques. .

Art. 65. - L’assemblee territoriale vote le budget et approuve les comptes du territoire.

Le budget du territoire est vote en equilibre reel.Ne sont obtigatoires pour le territoire que les depenses

necessaires a Pacquittement dcs dettes exigibles ct les depenses pour lesquelles la loi Pa expressement decide.

Art. 66. - L’assemblee territoriale peut assortir les infractions aux reglements qu’elle cdicte de peines d’empri- sonneinent ct d’amende n’cxcedant pas lc maximum prevu par les articles 465 et 466 du code penal ou de Pune de ccs deux peines seulement ct rcspcctant la classification dcs contraventions prevue par la deuxieme partie dc ce code.

Le produit de ccs amendcs est verse au budget du territoire.

Dans les matieres de la competence du territoire, Passem- blee territoriale fixe, par derogation k Particle 530-2 du code de procedure penale, ie tarif ct les modalites de perception des amendes forfaitaires. Leur montant ne pourra etre superieur aux deux tiers du maximum prevu par les textes.

Les articles L. 27-1 a L. 27-3 du code de la route metro- politain sont ctcndus au territoire, Pamende penale fixe etant rccouvree par ie service competent sur le territoire. L’assemblee territoriale determine le taux maximum de l*a- mende penale fixe prevue auxdits articles. .


JOURNAL OFFICIAL DE LA REPUBLIQUE FRANQAISE 7 sepicmbre 1984

Art. 67. - L'assemblee territoriale peut prevoir Papplica- tion de peines correciior.nelles, sous reserve d’unc homologation preaiablc de sa deliberation par la loi ; jusqu’a Ten- tree en vigneur de Is loi d'homologation, les auteurs des infractions prevues par ia deliberation sont passibles des peines applicable* aux auteurs de contraventions de la cin- quierne classe.

Sous la reserve prevue k Palinea precedent, Passemblee territoriale peut egalement assortir ces infractions de sanctions compicmentaires k prononcer par les tribunaux, dans la limitc de cedes prevues pa la legislation et la reglementation ; cur les ir.f c. ons de meme nature.

Art. 68. - L’assemblee territoriale peut reglementcr le droit de transaction en toutes matieres administrative, fis- cale, douaniere et economique de sa competence. Lorsque la transaction ports sur des faits constitutes d’infraction et si la transaction a pour effet d’eteindre Paction publique, elle ne peut intervenir qu’apres accord du procureur de la Republique.

Art. 69. - Dans l’exercice de sa fonction de controie, Passemblee territoriale peut creer des commissions d’enquete ou des commissions de controie. Ces commissions sont composees k la representation proportionnelle des groupes.

Les commissions d’enquete sont formees pour recueillir des elements d’information sur des faits determines et soumettre leurs conclusions a Passemblee. Il ne peut etre cre6 de commission d’enquete lorsque les faits ont donne lieu a des poursuites judiciaires et aussi longtemps que ces poursuites sont en cours.

Des commissions de controie sont formees pour examiner la gestion administrative, fimanciere ou technique des services publics. Les commissions d'enquete et les commissions de controie ont un caractere temporaire. Leur mission prend fin par le depot de leur rapport et, au plus tard, k Pexpiration d'un deiai ce trois mois k compter de la date de Padoption de la resolution qui les a creees. Elies ne peuvent etre reconstitutes avec le meme objet au cours de la meme annee.

Art. 70. - L’assemblee territoriale est consultee sur les projets de loi portant ratification de conventions internationales traitant de matieres ressortissant a la competence territoriale.

Dans tous les cas ou son avis doit etre recueilli, Passemblee territoriale dispose d’un dtlai de trois mois pour se prononcer. Ce deiai est reduit a un mois dans le cas prevu au deuxieme alinea de Particle 95 de la presente loi.

Art. 71. - Dans les matieres de la competence de PEtat, Passemblee territoriale peut adopter des vo;ux tenaant soit k fctendre des lois ou reglements metropolitains, soit k abroger, modifier ou completer les dispositions legislatives ou reglementaires applicables au territoire.

Ces voeux sont adresses par le president de Passemblee territoriale au president du gouvernement du territoire et au haut-commissaire. Celui-ci les transmet au ministre charge des territoires d’outre-mer.

Art. 72. - La commission permanente regie par ses d61i- bdrations, dans la limite de la delegation qui lui est consentie el qui ne peut comprendre les matieres men- tionnecs aux articles 65, 71 et 105, les affaires qui lui sont renvoyees par Passemblee territoriale.

En dehors des sessions de l’assemblee territoriale, la commission permanente emet les avis auxquels il est fait reference k Particle 70, a l’exception de ceux prevus par Particle 74 de la Constitution.

Sous r6scrve des dispositions du deuxieme alinea de Particle 94, la commission permanente peut, en cas d’urgence, decider Pouverture de credits supplementaires.

CHAPITRE III De Passemblee des pays

Section 1

Composition et formation

Art. 73. - L’assemblee des pays est composee de vingt- quatre representants de la coutumc et de vingt-quatre representants des communes.

Art. 74. - Les representants dc la coutume sont designes selon les usages reconnus par la coutume du pays, a raison de quatre representants pour chacun des six pays definis a Particle 3.

Un arrete du haut-conirnissaire constate ces designations.

Art. 75. - Les representants des communes sont elus parmi les membres des conseils municipaux a raison de quatre representants pour chacun des six pays definis k Panicle 3. Chaque pays consume k cet effet un college electoral compose par les conscillers municipaux des communes qui y sont situees. Le vote a lieu sur des listes com

: portant ciiacune les noms de quatre candidat* qui doivent appartenir k des communes differentes, sauf pour le pays des Loyaute dont Pune des communes peut avoir deux representants. Chaque candidat a un suppleant appartenant k la meme commune, dont le nom figure sur la meme liste. Sont elus les candiaats de la liste ayant obtenu le plus grand nombre de suffrages.

En cas d’egalite des suffrages, Pelection est acquise k la lisle ayant en tete le candidat le plus age.

Art. 76. - La dur£e du manda: des membres de Passemblee des pays est de cinq ans.

Art. 77. - Expire de droit le mandat du representant des communes qui perd la quaiite en vertu de laquelle il a ete elu. Le suppleant qui le remplace siege jusqu’a Pexpiration du mandat du titulaire. .

L’organisation des operations relatives k Pelection des representants des communes a Passemblee des pays est fixee par arrete du haut-cornmissaire.

Art. 78. - Tout membre de Passemblee des pays qui, pour une cause survenue posterieurement k son election ou k sa designation, se trouverait dans un des cas d’ineligibi- lil6 ou d’incompatibilite prevus par la loi pour" les conscillers territoriaux ou se trouverait frappe de Pune des incapacites qui font perdre la qualite d’electeur est declare demissionnaire par arrete du haut-commissaire.

Est incompatible avec la fonction de membre de l’assem- b!6e des pays tout mandat electif autre que celui de conseiller municipal et de membre d’un conseil de pays.

Art. 79. - Les elections des representants des communes peuvent etre contest6es par tout electeur, par les candidats, par les presidents du gouvernement du territoire, de Passemblee territoriale et de Passemblee des pays et par le haut-commissaire devant le tribunal administratif de la Nouvelle-Caledonie et dependances. *

Section II Fonctionnement

Art. 80. - L’assemblee des pays si£ge au chef-lieu du territoire. Elle se reunit de plein droit le premier jeudi qui suit l*61ection et la designation de ses membres.

Art. 81. - L’assemblee des pays se reunit soit en assemble plenicre qui comprend Pcnsemble des membres de Passemblee des pays, soit separement en formation de chambre coutumiere et de college dcs elus. La chambre

; coutumiere comprend les representants de la coutume. Le college dcs elus comprend les representants dcs communes.

Art. 82. - L’assemblee des pays tient chaque annee, sur convocation dc son president, deux sessions ordinaires dont la premiere s’ouvre entre le ler mars et le 30 avril et la seconde entre lc lcr septembre et le 31 octobre.

L’assemblee des pays fixe par deliberation la date d’ouverture et la duree de ses sessions ordinaires. Cette duree ne peut exceder deux mois.

Au cas ou Passemblee des pays ne s’est pas r6unic au cours de Pune dcs periodes. prevues pour ses sessions, lc haut-commi«sairc pent modifier par arrete pris apr£s avis du gouvernement du territoire la periode nonnalc de session et convoquer Passemblee en session ordinaire.

Les sessions sont ouvertes ct closes par le president de Passemblee dcs pays. *

7 bupii'MIbi u 1&64 342 2li47

La chambre coutumiere cl le college dcs elus se reunissent au cours des periodes de session dans rinlervalle des seances de Passemblee plenicie, sur convocation de leur president ou du bureau de Passemblee des pays.

En outre, la chambre coutumiere peut sc reunir en dehors des sessions, sur convocation de son president.

Art. 83. - L’assemblee des pays se reunit cn session extraordinaire, dans les formes prevues a Particle precedent et sur un ordre du jour fixe par la convocation, sur la dernande, presentee par ecrit au president de l'assemblee, soit par la majorite des membres composant Passemblee, soit par le gouvernement du territoire, soit, en cas de circonstances exceptionnelles on ’•our Pcxamen d’un projet ou d’une propo.-hion de ioi son mis a Pavis de Passemblee, par le haut-commissaire.

La duree de chaque session extraordinaire ne peut exceder un mois.

La duree cumulce dcs sessions extraordinaires tenues entre deux sessions ordinaires ne peut exceder deux mois.

Les dispositions des deux alineas precedents nc sont pas applicabies aux sessions extraordinaires tenues k la dernande du haut-commissaire.

Art. 84. - Lors de la reunion prevue a Particle 80, la chambre coutumiere designe son president.

Le president de la chambre coutumiere est president de Passemblee des pays. Le vice-president est le president du college des elus.

Le college des elus, lors de la reunion prevue a Particle 80, procede, sous la presidence du doyen d’age assiste du plus jeune membre du college des elus presents, a [’election de son president.

Le president de Passemblee des pays est assiste d’un bureau compose du vice-president et de quatre membres de l’assemblee des pays reprecentant respectivement la chambre coutumiere et le college dcs elus designes par ceux-ci a raison de deux representants pour chaque formation. En cas de partage des voix, celle du president est pre- ponderante.

Le president a seul la police de Passemblee dans l’cn- ceinte de celle-ci. Il peut faire expulser de la salle des seances toute personne qui trouble Pordre. En cas de crime ou de debt flagrant, il peut faire proceder a des arresta- tions ; il en dresse proces-verbal et le procureur de la Republique en est immediatement saisi.

En cas de besoin, le president de l’assemblee des pays peut faire appel au haut-commissaire pour s’assurer lc

.concours de la force publique.Art. 85. - Les avis et rapports de Passemblee des pays

ne sont valables que si plus de la moitie des membres en exerdice sont presents. Si le quorum n’est pas atteint au jour fix£ pour Pouverture de la session, celle-ci est renvoyee de plein droit au troisieme jour qui suit, dimanche ct jours feries nen compris. Les avis et rapports sont alors valables quel que soit le nombre des membres presents. La duree legale de la session court a partir du jour fixe pour la secoude reunion.

Lorsque, en cours de seance, les membres presents lors d’une deliberation ne forment pas la majorite des membres en exercice, les votes sont renvoyes au lendemain, dimanche et jours feries non compris ; ils sont alors valables quel que soit le nombre dcs presents.

Dans les cas prevus aux deux precedents alineas, les noms des absents sont inscrits au. procds-verbal.

En cas de partage des voix, la voix du president est pre- ponderante.

Art. 86. - L’assemblee des pays etablit son reglernent interieur. Ce riglcmcnt fixe les modalites de son fonctionnement qui nc sont pas prevues au present titre. Il peut etre soumis pour avis au tribunal administratif dc la Nouvelle- Caledonie et dependances par le president dc Passemblee des pays. 11 peut etre defere par le haut-commissaire ou par tout membre de l’assemblee au tribunal administratif de la Nouvelle-Caledonie ct dependances.

La chambre coutumiere et le college des elus ctablissent leur propre reglernent interieur dans Ics conditions fixees ci-dcssus.

Art. S7. - L’assemblee des pays fixe Pordre du jour dc ses deliberations ct etablit un proces-verbal de chacunc dc ses seances.

Les proces verbaux sont signes par le president dc Passemblee des pays.

Art. 88. - Les membres de l’assemblee dcs pays ont droit a des indemniles de transport ct de sejour dont le montant est fixe par reference aux indemniles correspon- danles prevues pour les agents de la categoric A de la fonction publique territoriale.

Il peut etre allouc au president de l’assemblee dcs pays une indemnite pour frais dc representation.

Section IIIAttributions de l'assemblee dcs pays

et competences specifiques dc sa chambre coutumiere

Art. 89. L’assemblee dcs pays est consultee en formation plenicre sur les projets du gouvernement da territoire ct sur les propositions de deliberations de Passemblee territoriale en matiere de dcvcloppemcnt economique, social et culturcl, de planification et de budget. Elle peut cn saisir les conseils de pays.

Si elle n’a pas donne son avis dans un deiai d’un mois, il est passe outre.

Elie peut de sa propre initiative saisir l’assemblee territoriale de toute question relevant de sa competence.

Elle peut etre saisie par P haut-commissaire, sur dernande du ministre charge des tei ritoires d’outre-mer, de toutes questions relevant de la competence de i’Etat ; le haut-commissaire tient le gouvernement du territoire informe de cette saisine.

Art. 90. - Le gouvernement du territoire communique k l'assemblee des pays, avant Pouverture de la deuxieme session, le montant de la dotation qu'il envisage d’inscrire dans le projet de budget du territoire en vue de couvrir les depenses de fonctionnement de cette assemblee.

Dans le deiai d’un mois suivant la communication de cette information et, en tout etat de cause, avant le 10 novembre au plus tard, Passemblee des pays presente un projet de repartition de cette dotation globale.

Le gouvernement du territoire inclut cette repartition dans le projet de budget qu’il depose sur !e bureau de l'assemblee territoriale dans les conditions prevues a Particle 102.

Si l’assemblee des pays ne presente pas dans les delais prevus au deuxieme alinea un projet de repartition de sa dotation de fonctionnement, le gouvernement du territoire determine la repartition des credits necessaires au fonctionnement de Passemblee des pays.

Art. 91. - La chambre coutumiere est saisie des projets ou propositions de deliberations portant sur les questions de droit civil particulier par le gouvernement du territoire et par l’assemblee territoriale.

Sous reserve des attributions exerc6es par les autorites coutumieres reguli6rement institutes et par les juridictions d’Etat en matiere coutumiere dans les cas et conditions prevus par l’ordonnance n° 82-877 du 15 octobre 1982 insti- tuant des assesseurs coutumiers dans le territoire de la Nouvelle-Caledonie et dependances au tribunal civil de premiere instance st a la cour d’appel, la chambre coutumiere a une mission de conciliation dans les conflits dont elle peut etre saisie entre citoyens de statut civil particulier dans les matieres regies par ce statut.

Sous reserve des dispositions dcs articles 5 et 41, le president de l’assemblee dcs pays, en tant que representant des institutions coutumieres, assure la liaison avec les cornmu- nautes meianesiennes du Pacifique Sud participant de la meme culture.

’ CHAPITRE IV Du comite d’expansion economique

Art. 92. - Lc comitt d’expansion economique est compose des representants dcs sccteurs socio-profcssionncls et associates, designes pour un tiers chacun par trois colleges constitues, le premier par les organisations patronales, le deuxieme par les organisations syndicates dc salaries ct le troisieme par les associations representatives notamment des femmes, de la jeuncssc ct du mondc rural.

L’assemblee territoriale fixe lc nombre dcs membres du comite d’expansion economique, son organisation interne ct ses regies de fonctionnement.

4

Lc gouveincmcnt du territoire fixe pour chacun des colleges :

1° La liste des groupements, organismes ct associations representes au sein du comite d'expunsion economique ;

2° Lc mode de designation de leurs representants ;3° Le nombre des sieges attribues a chacun de ces grou-

pements, organismes et associations.Un arrete du haut-commissaire constate la designation

des representants.Le fonctionnement du cornite d’expansion Economique

est assure p3r une dotation inscrite au budget du territoire et presentam le carac*' e d’une depense obligatoire. Le comite d'ex pension economique determine Paffectation des credits cor re •poiKuints.

Art. 93. - Le coinilc d'expansion economique donne son avis sur les projets de caructere economique, social ou cuJturel qui lui sont sou mis, a l’exclusion de tous aulres, p3r lc gouvernement cu territoire, Passemblee territoriale ou l’assemblee des pays.

Il pent de sa propre initiative saisir l’assemblee territoriale de toute question relevant de sa competence.

• CHAPITRE VDes rapports entre Passemblee territoriale, Passemblee des

pays, le combe d’expansion economique, le gouvernementdu territoire et PEcat

Art. 94. - L’assemblee territoriale ou sa commission permanente est saisie, soit de projets de deliberations par le gouvernement du territoire, soit de propositions de deliberations par les membres de l’assemblee, soit d’avis emis par l’assemblee des pays ou par le comite d’expansion economique dans les conditions prevues par les articles 89 et 93.

Aucune .augmentation de depenses ou diminution de rccettcs ne peut etre adoptee si elle ne trouve pas sa contre- partie dans les recettes prevues ou si elle n'est pas acccm- pagnee d’une proposition de relevement de taxe, de creation de taxe ou d’economie de la meme importance.

Art.' 95. - Par derogation aux dispositions des articles 56, premier alinea. et 60, deuxieme alinea, le conseil des ministres du territoire peut faire inscrire par priorite a l’ordre du jour de l’assemblee territoriale les projets de deliberations dont il estime la discussion urger.te et k Pordre du jour de Passemblee des pays les demandes d’avis ou de rapports revetant la meme urgence.

Par derogation aux menies dispositions, le haut- commissaire peut faire inscrire par prioritE a Pordre du jour une question sur laquelle l’assemblee territoriale ou la commission permanente doi: Emettre un avis.

Art. 96. - Le haut-commissaire peut, lorsqu’il le dernande, assister aux seances du conseil et y etre entendu lorsqu’il s’agit d’affaires concernant la reprEsentation de la PvEpublique dans le territoire et des transferts de compEtences.

Le haut-commissaire peut demander au president du conseil de gouvernement la convocation de PassemblEe territoriale en session extraordinaire, sur un ordre du jour determine.

Art. 97. - Le gouvernement du territoire et le haut- commissaire sont informEs avant les seances de Pordre du jour des travaux de Passemblee territoriale ct de ses commissions. ■

Par accord du president de Passemblee territoriale et du haut-commissaire, celui-ci est entendu par Passemblee terri- totiale.

Le haut-commissaire est Egalement entendu par Passemblee territoriale sur dernande du ministre charge des territoires d’outre-mer.

Les membres du gouvernement du territoire assistent de droit aux seances de PasscmblEe territoriale ct de ses commissions. lls sont entendus sur les questions inscrites k Pordre du jour, lls peuvent sc faire assister de commis- Saires.

Art. 98. - Les membres du gouvernement du territoire assislcnt de droit aux seances de Passemblee nleniEre des pays. Ils sont entendus, a la dernande du president dc Passemblee des pays, sur les questions inscrites k Pordre du jour. Ils peuvent se faire assister de commissaires.

Art. 99. - Lorsque l’assemblee territoriale. sur un proict ou une proposition de deliberation, ne suit pas Pavis de Passemblee des pays, !e gouvernement du territoire peut demander un second avis a Passemblee des pays e' provoquer une seconde lecture du texte a Passemble territoriale.

Lorsque Passemblee territoriale, sur un projet ou une proposition dc delibEration portant sur les questions de droit civil particulier, ne suit pas Pavis de la chambre coutumiere, le gouvernement du territoire peut demander un second avis k la chambre coutumiere et provoquer une seconde lecture du texte a l’assemblee territoriale.

Art. i00. - Les actes et proces-verbaux de 1’assemblEe territoriale et de la commission permanente sont transmis sans deiai au president du gouvernement du territoire. Ms sont Egalement transmis au president de Passemblee des pays lorsque cette assemblee a ete consultce ou a donr.E d’office un avis.

Le conseil dcs ministres du territoire peut demander une seconde lecture d’une deliberation de l’assemblee territoriale dans le deiai de huit jours suivant la date a laquelle cette deliberation a ete transmise au president du gouvernement. Avis de cette dernande est transmis sans deiai au haut-commissaire. L’execution de la deliberation est sus- pendue jusqu’d la seconde levture.

Art. 101. - le president ou gouvernement du territoire adresse chaque annee a Passemblee territoriale et a Passemblee des pays :

l°Lors de la session administrative, un rapport special et dEtaille sur la situation du territoire et l’Etat des differents services pubiics territoriaux ; .

2° Avant le l«r septembre, le projet d’arrete des comptes de Pexercice budgetaire EcoulE ;

3° Lors de la session budgEtaire, un rapport sur Pactivite du gouvernement du territoire pendant Pannee Ecoulee ;

4° A chacune;des sessions ordinaires, un rapport sur les affaires qui vont etre soumises a PassemblEe territoriale au cours de la session.

Ces rapports sont imprirr.Es et distriburs k tous les membres de l’assemblee territoriale et de l’assemblee des pays au moins huit jours avant Pouverture de la session.

Art. 102. - Le prEsident du gouvernement du territoire depose le projet de budget du territoire, sur le bureau de PassemblEe territoriale, au plus tard le 15 novembre.

Si le budget n’est pas exccutoire avant le ler janvier de Pexercice auquel il s’applique, le prEsident du gouvernement du territoire peut mettre en recouvrement les recettes et engager les dEpenses de la section de fonctionnement dans la limite de celles inscrites au budget de Pannee pre- cedente. •

Si PassemblEe territoriale n’a pas vote le budget avant le 31 mars, et sous reserve des dispositions de Particle 103, le conseil des ministres du territoire Etablit, sur la base des recettes de Pexercice precEdent et apres avoir recueilli les avis du haut-commissaire et de la Cour des comptes, un budget pour Pannee en cours. La decision doit etre motivee si elle s’ecarte de Pun au moins de ces avis.

Art. 103. - Lorsque le budget du territoire n’est pas votE en equilibre rEel, la Cour des comptes, saisie par le haut- commissaire dans le deiai de trentc jours a compter de la transmission qui lui est faite de la deliberation de l’assem- blEe territoriale, le constate et propose a l’assemblee territoriale, dans un deiai de trente jours a compter de sa saisine, les mesures nEcessaires au retablissement de I’equilibre budgetaire. La Cour des comptes dernande k Passemblee territoriale unc nouvelle delibEration. •

La nouvelle delibEration rcctifiant le budget initial doit intervenir dans un deiai d’un mois k compter de la communication des propositions de la Cour des comptes.

Si PasscmblEe territoriale n’a pas dEliberE dans le deiai present, ou si la dElibEration prise ne comporte pas de mesures de redressement jugEes suffisantes par la Cour des comptes, qui se prononce sur ce point dans un deiai dc quinze jours k compter de la transmission de la nouvelle deliberation, le budget est regie et rendu executoire par le haut-commissaire. Si celui-ci s’Ecarte des propositions for- mulees par la Cour des comptes, il assoitit sa decision d’une motivation explieite.


7 septe.nhre 1934 JOURNAL OFFICIEL DE LA REPUBLIQUE FRANQAISE 2849

Art. 104. - Si une depensc ohligMoirc a ete omisc ou si le credit correspondant a cette depensc a ete insuffisam- ment dote au budget du territoire, le haut-commissaire dernande une seconde lecture a Passemblee du territoire. Si, dans les quinze jours dc la dernande de seconde lecture, Tassemblec territoriale u'a pas retabli les inscriptions de credits necessaires, le haut-commissaire saisit la Cour des comptes.

Si la Cour des comptes constate dans lc mois dc sa saisine que la depensc obligat e dc n’a pas ete inscrite au budget du territoire ou l'a ete pour un montant insuH'isr.nt, le haut-commissaire procecie a I'inscription d'oiiice des credits necessaires selon les propositions de la Cour des comptes, soit par prilevement sur le credit ouvert pour les depenses diverses et imprevues, soit par reduction de depenses facukatives, soit par majoration de taxes, soit par imputation sur les foiicls territoriaux.

A defaut de mandatement d’une depense obligatoire par le president du gouvernement du territoire dans le mois suivant la mise en demeure qui lui a ete faite par le haut- commissaire, celui-ci y proccde d’office.

Art. 105. - L’assemblee territoriale peut rnettre en cause la responsabilite du gouvernement du territoire par le vote d’une motion de censure ; celle-ci n’est rccevable que si elle est signee par au moins les deux cinquiemes des membres de l’assemblee.

Le vote ne peut avoir lieu que deux jours francs apr£s son depot. Seuls sont recenses les votes favorables a la motion de censure qui ne peut etre adoptee qu’a la majorite absoluc des membres composant l’assemblee. Le vote est personnel.

Il ne peut etre depose qu’une motion de censure par session.

Art. 106. - L’adoption de la motion de censure met fin aux fonctions des membres du gouvernement du territoire. Ceux-ci assurer.: toutefois i’expedkion des affaires courantes jusqu’a Selection du nouveau gouvernement du territoire dans les conditions fixees par l’article 8.

Art. 107. - Lorsque le fonctionnement des institutions territoriales se revele impossible, l’assemblee territoiiale peut etre dissoute par decret motive en conseil des ministres, apres avis du president de l’assemblee territoriale et du president du gouvernement du territoire. Le Gouvernement de la Republique en informe le Parlement et le gouvernement du territoire dans les plus brefs delais.

L’assemblee territoriale peut egalement etre dissoute par decret en conseil des ministres a la dernande du gouvernement du territoire.

Le decret de dissolution de l’assemblee territoriale fixe la date des elections qui doivent avoir lieu dans les trois mois.

Le gouvernement du territoire assure l’expedition dcs affaires courantes jusqu’& Pelection du nouveau gouvernement du territoire dans les conditions prevues a Particle 8.

Art. 108. - Le haut-commissaire assure la publication au Jounal ofjlciel de la Nouvelle-Caledonie et dependances des decisions ressortissant a la competence de PEtat, le president du gouvernement du territoire celles ressortissant a la competence du gouvernement du territoire, le president de Passemblee territoriale celles ressortissant k la competence de Passemblee territoriale.

A defaut de publication dans un deiai de quinze jours des actcs ressortissant a la competence du territoire, lc haut-commissaire cn assure sans deiai la publication.

CHAPITRE VI

Des conscils de pays

Art. 109. - Il est croc un conseil de pays dans chacun des six pays definis a Particle 3.

Art. 110. - Chaque conseil dc pays associc des representants de la coutume, des represemants des communes el des representants des activites economiquos et sociales du pays.

Chaque commune dispose d’un representant. Le nombre des representants des activites economiquos et sociales est egul au nombre dcs representants des communes.

Art. 111. - Les representants de la coutume sont designes selon les usages reconnus par la coutume du pays.

Un arrete du haut-commissaire constate ces designations.

Art. 112. - Les representants des communes ct leurs suppleants sont elus parmi les membres des conseils municipaux de chaque pays par l’ensemble dcs conscillers municipaux des communes situees k Pinterieur du pays. Le vote a lieu sur dcs listes comportant un rcpiesentant de chacune dcs communes ainsi que son suppleant. Est clue la liste ayant obtenu le plus grand nombre dc suffrages.

Art. 113. - Les representants dcs activites economiquos et sociales et leurs suppleants sont designes dans chaque pays par les organismes socio-professionnels et associates participant a la vie collective de ce pays.

Des arretes du conseil des ministres du territoire pris apres avis de Passemblee territoriale fixent la liste de ces organismes socio-professionnels et associates ainsi que les modalites de leur designation.

Un arrete du haut-commissaire constate les designations des representants dcs activites economiques et sociales.

Art. 114. - L’organisation des operations relatives a Pelection des representants des communes et des representants des activites economiques et sociales des conseils de pays est fixee par arrete du haut-commissaire.

La duree du mandat de ces representants est fixee a cinq ans. ’

Expire de droit lc mandat du representant qui perd la qualite en vertu de laquelle il a ete elu ou design^. Le suppleant qui le remplace siege jusqu’a Pexpiration du mandat du titulaire.

Art. 115. - Les membres du conseil de pays doivent etre de nationality fran^aise, ages de vingt et un ans revolus et avoir !a qualite d’electeur.

Art. 116. - Le conseil de pays peut etre salsi par toute personne publique ou privee pour avis sur des projets tendant a promouvoir le developpement economique, social, sanitaire, culturel et scientifique du pays et a assurer la preservation de son identite. Ces avis sont emis dans lc respect de l’integrite et des attributions du territoire et des communes. .

Il peut, de sa propre initiative, emettre des avis et des veeux sur les matieres ci-dessus.

Art. 117. - Des que le haut-commissaire a constate Pelection ou la designation de Pensemble des membres d’un conseil de pays, il convoque ce dernier par arrete.

Le president et le bureau du conseil de pays sont elus k la majorite des membres presents pour une duree de cinq ans.

Le conseil de pays tient, sur convocation de son president, au moins une reunion par an au chef-lieu de la subdivision la plus proche sauf si la majorite de ses membres en a decide autrement.

Art. 118. - Les membres du conseil de pays ont droit k des indemnites de transport et de sejour, dont le montant est fixe par reference aux indemniles correspondantes prevues pour les agents de la categorie A de la fonction publique territoriale.

Il peut etre alloue au president du conseil de pays une indemnite pour frais de representation.

Ces indemnites font l’objet d’une dotation inscrite au budget du territoire et presentent le caractere d’une depense obligatoire. •

. TITREII

DU HAUT-COMMISSAIRE DE LA REPUBLIQUE

Art. 119. - Le haut-commissaire a la charge des intercts nationaux, du controie administratif ct du respect dcs lois.

11 promulguc les lois ct decrcts dans le territoire apres en avoir informc lc gouvernement du territoire. 11 assure leur publication au Journal ojTuiel de la Nouvelle-Caledonie et dependances.

11 assure Pordre public, le respect des libertes publiques et des droits individuels et collectifs.


2C50 JOURNAL OFFICIEL DE LA REPUBLIQUE FRANQAISE 7 septembre 1984

11 assure au nom de l’Etat, dans les conditions prevues par la legislation ou la reglementation en vigueur, lc controie dcs oiganismes ou pcrsonnes publics ou prives benenciant de subventions ou contributions de l’Etat.

Il prend des reglements dans les matieres relevant de sa i competence. j

11 est ordonnateur des recettes et des depenses civiles del l’Etat et pent deleguer ses pouvoirs en cette matiere k un! fonctionnairc relevant de son autorite. ;

En matiere de d6fense, il e\crc»* »s functions prevues par la iegi>in'’i n et ia regicincnuuioii en vi-,ueur dans les territoires d’outre-mer.

11 peut proclamer Petat d’urgence dans les conditions prevues par les lois et decrets. 11 en informe le president du gouvernement du territoire et en rend compte au ministre charge des territoires d’outre-mer.

Art. 120. - Le haut-commissaire veille k la legality des actes des autorites du territoire.

Le president du gouvernement du territoire et le president de I’asseinbiee territoriale certifient sous leur responsabilite, chacun en ce qui le concerne, le caractere executoire de ces actes.

La preuve de la reception des actes par le haut- commissaire peut etre apportee par tout moyen. L’accuse de reception qui est immediatement delivre peut etre utilise & cet effet inais n’est pas une condition du caractere executoire des actes.

Le haut-commissaire deffcre au tribunal administratif de la Nouvelle-Caledonie et dependances les decisions du gouvernement du ten itoire et les deliberations de Passemblee territoriale qu’il estime contraires k la legalite, dans les deux mois de la transmission qui lui en est faite.

A la dernande du president du gouvernement du territoire, pour les decisions du gouvernement du territoire, ou du president de Passemblee territoriale, pour les deliberations de Passemblee territoriale, le haui-commissaire peut faire connaitre son intention de ne pas deferer un acte au tribunal administratif de Ia Nouvelle-Caledonie et dependances. Lorsque le haut-commissaire defere un acte au tri-1 bunal administratif, il en informe sans deiai Pautorite territoriale ccncernee et lui communique toutes precisions sur: les illegalites invoquecs.

Le haut-commissaire peut assortir son recours d’une. dernande de sursis k execution. Il est fait droit a cette i dernande si Pun des moyens invoques dans la requete j paralt, en Petat de Pinstruction, serieux et de nature k justi- i Tier Pannulation de Pacte attaque. 1

Lorsque Pacte attaque est de nature k compromettre i Pexercice d’une liberie publique ou individuelle, le president du tribunal administratif ou un membre du tribunal delegu6 a cet effet prononce le sursis dans les quarante-huit hemes. La decision relative at! sursis est susceptible d’appel i devant le Conseil d’Etat dans la quinzaine de sa notiilca- tion. En ce cas, le president de la section du contentieux i du Conseil d’Etat ou un conseilier d’Etat delegu6 a cet effet statue dans un deiai de quarante-huit heures.

L’appel des jugements du tribunal administratif ainsi que ; des decisions relatives aux sursis prevus aux alineas prec6- i dents, rendus sur recours du haut-commissaire, est presente ; par celui-ci. j

Sans prejudice du recours direct dont elle dispose, si une i personne physique ou morale est'les&e par un acte des autorites territoriales, elle peut dans le deiai de deux mois ' k compter de la date k laquelle Pacte est devenu executoire, j demander au haut-commissaire de mettre en oeuvre la pro- j cedure prevue aux quatrieme, cinquicme et sixi&me alineas , du present article. • j

Art. 121. - Dans toutes ses fonctions, lc haut- commissaire est assiste par un secretaire general nomm6 par decret, auquel il peut d61£guer unc partie de ses attributions et qui le supplee de plein droit en cas d’absence ou d’empechement.

,'tjtreijiDU COMPTABLE DU TERRITOIRE ET DU CONTKOLE FINANCIER

Art. 122. - Le ministre charge du budget nomme, apr£s que lc president du gouvernement du territoire en a ete *

informe, le comptable du territoire. Celui-ci est un comptable direct du Tresor ayant la qualite dc comptable principal.

Les fonctions de comptable de l’Etat dans le territoire et celles de comptable du territoire ne peuvent etre excrcees par une meme personne.

Le comptable du territoire prete serment devant la Cour des comptes.

Il est tenu de produire ses comptes devant la Cour des comptes qui statue par voie de jugement.

Art. 123. - Le comptable ne peut subordonner ses actes de paiement a une appreciation de l’opportunite des decisions prises par Pordonnateur. 11 ne peut soumettre les memes actes qu’au controie de legalite qu’impose Pexercice de sa rcsponsabilite personnels et pecuniaire. Il est tenu de motiver la suspension du paiement.

Lorsque le comptable du territoire notifie sa decision de suspendre le paiement d’une depense, le president du gouverncment du territoire peut lui adresser un ordre de requisition. Il s’y conforme aussitot, sauf en cas d’insuffisance de fonds territoriaux disponibles, de depense ordonnancee sur des credits irr^gulierement ouverts ou insuffisants ou sur des credits autres que ceux sur lesquels elle devrait etre impure, d’absenee totale de justification du service fait ou de defaut de cars acre liberatoire du reglernent.

L’ordre de requisition est notifie au haut-commissaire qui en informe la Cour des comptes.

En cas de requisition, Pordonnateur engage sa responsabilite propre. f

Art. 124. - La Cour des comptes peut deleguer k un de ses magistrats les competences prevues aux articles 102, 103, 104 et 123.

TITRE IV

DU TRIBUNAL ADMINISTRATIF DL LA NOUVELLE-CALEDONIE ET DEPENDANCES

Art. 125. - Ii est institu6 un tribunal administratif de la Nouvelle-Catecionie et dependances dont le siege est k Noumea.

Ce tribunal rend ses jugements au nom du peuple . fransais.

Il est juge de droit commun de l’ensemble du contentieux administratif en premier ressort et sous reserve d’appel devant ie Conseil d’Etat.

Art. 126. - Le tribunal administratif de la Nouvelle- Caledonie et tfspendances se compose d’un president et de plusieurs autres membres dont Pun est charge des fonctions de commissaire du gouvernement.

Le president et les membres du tribunal sont recrutfcs dans le corps des tribunaux administrates.

Art. 127. - Le tribunal administratif de la Nouvelle- Caledonie et dependances peut valablement deliberer en se compliant, en cas d’absence ou d’empechement d’un de ses membres, par Padjonction d’un magistrat de Pordre judiciaire du ressort de la cour d’appel de Noumea.

| Art. 128. - Les jugements du tribunal administratif de la j Nouvelle-Caledonie et dependances sont rendus dans les j conditions prerues aux articles L. 4, alinea premier, L. 5 k L. 8 du code dcs tribunaux administrates.

! Art. 129. - Les modalites duplication du present litre iseront fixees piar decret en Conseil d’Etat.

I TITRE V

i. DE L’ACCES A LA FONCTION PUBLIQUE DU TERRITOIRE

j Art. 130. - II est crit, dans lc territoire dc ia Nouvelle- ICalcdonie et dependances, sous la denomination « Centre j dc formation* du personnel administratif dc la Nouvellc- |Calcdonie et dependances »,. un etabiissement public a i caractere administratif du territoire charg6 d’assurer la pre- 1 paration ct le recrutcment des candidats aux empiois administrates des categories A et B de la fonction publique du territoire ainsi que la formation des agents de cette fonction publique.

/ sept* si-: .-c U34 JOURNAL OFFICIAL DE LA REPUBLIQUE FRANCAISE

Le conseil d’adminiMration du centre dc formation du personnel administratif de la Nouvelle-Caledonie et dependances est preside par le membre du gouvernement du ler- riloire charge de la fonction publique du territoire. II est, en outre, compose des sept membres suivants :

1° Un membre de Passemblee territoriale e!u par cette assemblee ;

2° Un membre de Passemblee des pays elu par cette assemblee ;

3° Trois representants ue i Etat designes par le haut- commissaire :

4" Le dncciciii du cculy :5° Un representant elu des fonctionnaires du territoire

dont la candidature a ete presentee par !cs organisations syndicates representatives dc fonctionnaires.

Le president du conseil d’administralion a voix preponderance.

Lc conseil d’administration est as>iste d’un conseil d’orieniation qui le saisit chaque annee d’un projet de programme de formation et peut lui faire toutes propositions en matiere de formation.

Les ressources du centre de formation du personnel administratif de la Nouvelle-Caledonie et dependances sont constitutes par :

1° Une cotisation obligatoire versee par le territoire et ses etablissements publics administrates ;

2° Les redevances pour prestations de services ;3° Les dons et legs ;4<> Les emprunts aflectes aux operations d’investisse-

ment;5° Les subventions qui lui sont accordces.

La cotisation est assise sur la masse dcs remunerations versees aux agents employes par le territoire et ses etablissements publics administratifs, telle qu'elle apparait au compte admii'istratif cl-* i'.*vmt-dernier ex ere ice. I. e taux de cette cotisation est fixe chaque annee par l’assemblee territoriale, sur proposition du conseil d’administration.

Art. 131. - Le recrutement des fonctionnaires aux emplois administrates de categories A et B de la fonction publique du territoire s’cpere a concurrence des deux tiers des emplois parmi les elcves sortant du centre de formation du personnel administratif de la Nouvelle-Caledonie ct dependances et, pour le tiers restant, parmi les agents de la fonction publique de ce territoire.

Les statuts particulars dcs corps de fonctionnaires de categories C et D peuvtnt permettre le recrutement de ces fonctionnaires sans concours.

Les fonctionnaires de la fonction publique du territoire peuvent exercer dans le territoire des fonctions dans les services de la fonction publique d’Etat soit par voie de deta- chement sur des emplois des corps de la fonction publique d’Etat, soit par mise a disposition.

Un decret en Conseil d’Etat fixe,-on tant que de besoin, les modalites duplication du present titre.

TITRE VI

DISPOSITIONS DIVEKSES ET T R A NS 1 TO IRES

Art. 132. - Le conseil de gouvernement en excrcice assure (’expedition des affaires courantes jusqu'a Pelection d’un nouveau gouvernement du territoire dans les conditions prevues a Particle 8.

Les elections k l’assemblee territoriale auront lieu dans les conditions prevues par la presente loi au plus tard dans les quatre-vingt-dix jours suivant sa promulgation.

Les autres dispositions de la presentc loi entreion! cn vigueur k la date dc la premiere reunion de l’assemblee territoriale clue conformemcnt aux dispositions de Palinea precedent.

Jusqu’a !a date.de ces elections, Passemblee'territoriale clue le l*’r juillet 1970 excrce les attributions prevues par la loi n° 76-1222 du 28 dccembre i97l\ mouilice par ia loi n° 79-407 du 24 mai 1979, relative a Porgnnisation de la Nouvelle-Caledonie et dependances, k Pexception des articles 9 et 58.

Art. 133. - Pendant un deiai de trois ans a compter de la publication de la preseme loi, le tribunal administratif de la Nouvelle-Caledonie et dependances peut comprendre, a Pexception dc son president et du commissaire du gouvernement, a titre permanent ou comme nu-.nbre suppleant, dcs magistrats de Pordic judiciaire et dcs fonctior.naiies ou anciens fouctionnuiies cxercant ou ayant excrce des fonctions cquivalcntes a celles de chefs dc service.

Pour une periode n’cxcedant pas lc !vf janvier 1985. le president et ‘ le commissaire du gouvernement du tribunal administratif de la Nouvelle-Caledonie el dependances sont designes oar decret pris sur proposition <L: mir.istre de Pin- tericur apres avis ou chef de la mission permancme de Pinspcction des juridiciions adminisnativcs parrni les membres du corps dcs tribunaux admiiiLlralifs.

Art. 134. - Le decret en Conseil d’Ltat prevu a Particle 129 fixera les conditions dans lesquelles les affaires cn instance devant le conseil du conteuiioux du territoire scront transmises au tribunal administratif de la Nouvelle- Caledonie et dependances.

Art. 135. - Des conventions passces entre PEtai et le territoire detcrmincront les dolais et conditions dans Icsquels les enscigncments du second degre scront transfers au territoire ainsi que, le cas echeant, les offices vises a Particle 5 (11°).

Art. 136. - Pour la premiere annee duplication de la presente loi, le montant global des interventions civiles de i’Etat en favour de Pcquipement du territoire ne peat etre inferieur .a la moyenne du montant des interventions d’equipement dont a beneficie le territoire au cours dcs trois dernieres annees.

Art. 137. - Pendant une periode de trois ans a compter de la promulgation de la presentc loi, il pourra etre procede, par derogation aux dispositions de Particle 130, au recrutement de fonctionnaires de categories A et B de la fonction publique uu territoire parmi ies peisonnes tim- laires du baccalaureat ou ayant exerce pendant cinq ans au moins Pune des fonctions suivantes :

- maire ou adjoint au maire ou conseiller municipal ;- membre d’un organe d'administration ou de direction

d’une des organisations syndicales de salaries ou de nonsalaries considerces comme les plus representatives dans le territoire.

Les integrations dans la fonction publique du territoire ne peuvent intervenir que sur pioposition d'une commission de selection presidee par le president du tribunal administratif et comprenant, en outre, quatre membres, dont deux seront designes par lc haut-commissaire et deux par le president du gouvernement. La commission peut prevoir que Pintegration ne pourra intervenir qu’a Pissuc d'un stage, dans un service de PEtat ou elu territoire, sauf dispense exceptionnelle accordee par !a commission.

Un decret en Conseil d'Etat fixe, en tant que de besoin, les modalites d’application du present article.

Art. 138. - La loi n° 76-1222 du 28 deccmbre 1976, inodifiee par la loi n° 79-407 du 24 mai 1979, relative a (’organisation de la Nouvelle-Caledonie et dependances, est abrogee sous reserve de son application durant la periode prevue a Particle 132.

Le decret du 29 dccembrc 1922 rehuif au regime dc la presse en Nouvelle-Caledonie est abrogc.

La presentc loi sera executcc comme loi dc l’Etat.

Fait a Parish lc 6 septembre 1984.

FRANCOIS MITTERRAND

Pur le President de la Republique :

/.i* Premier ministre,LAURENT FAH11JS

Le ministre de Teeonomic, des finances et du budget, PIERRE BEREGOVOY


NEW CALEDONIA

EXCERPTS FROM THE STATEMENTS MADE BY M, FRANCOIS MITTERRAND/ PRESIDENT OF THE REPUBLIC ON FRENCH TELEVISION ( 16 and 20 January 1985)

TELEVISION INTERVIEW GIVEN BY THF.PRESIDENT OF THE REPUBLIC ON 3ANUARY lfcth.

- • Q- Isn't the flare-up of violence of the past few days putting the implementation of the plan proposed by M. Edgar Pisani in jeopardy ?THE PRESIDENT - It is complicating it. It is not putting it in jeopardy in sucha way as to prevent pursuit of the plan.

-Q- Yet in pratice, Mr President, M. Pisani no longer has any interlocutors. The local RPR and the FLNKS have rejected his plan as it stands.THE PRESIDENT - It doesn't go as far as that. As you say, they have quite clearlyrejected it, but they have not rejected the intermediate phase ; an appointment has been made with the electors, precisely, the electors of New Caledonia, and every party, every section, every individual will certainly want to participate in the poll

-Q- And you don't think the timetable allows too little time ?THE PRESIDENT Some people think it does not allow much time. Would it be goodfor France or for New Caledonia if that controversy were kept dragging on for too long ?

-Q- If the poll goes ahead under satisfactory conditions, it will already be a step in the right direction, but will it settle the problem ? Are you sure that the losers will abide by the result ?THE PRESIDENT - That is exactly the problem. You have put your finger on it. There are two quite distinct communities out there, and a third fairly mixed section of the population.

__ '

The first and longest established community are the Melanesians,the Kanaks.


The second, more recently established but who have nonetheless taken root over more than a century are of French descent, Europeans, Whites.

The third are people who have come from the vast expanse of the Pacific, who lived in other islands and have sought to settle' there.

The first number about 62 to 63,000, the second 33,000 and the third - Polynesians, Wallisinans, Vietnamese and others - around 30,000 altogether.

Their interests are obviously not the same, perhaps they should even be described as contradictory.

Then there are France’s interests.

If we want succeed - anyone in my place would want to serve France's interests, of course, and everyone has sought to do so, it is my role today - how can harmony be achieved between those conflicting populations while trying to satisfy and take account of the interests of all the communities ? That is what M. Pisani’s plan has done. As you can well imagine, it was proposed after it had been examined by the Prime Minister and myself.

A little give and take is the very object of negotiation, since a negotiation has been started ; it has been interrupted, it may resume. But a lot of give or a lot of take would cause another explosion. You will say that the explosion has already occured.

-Q-Precisely, Mr President. In that difficult compromise between law and order and negotiation, is Eloi Machoro! s death politically disastrous or may it, paradoxically, be a helpful factor for negotiation ?

THE PRESIDENT No, I think it is utterly deplorable and it has pushed the Kanak community into a more hardline attitude of refusal, which is not just a verbal refusal : one plainly feels that this population has been dealt a blow to the heart.

But the need to act in the interests of the island and its population as a whole will prevail among the real responsible leaders,

-Q- You were yourself Minister of the Interior in a Government that started the Algerian war. Today, in the case of New Caledonia, you are advocating independence in association. Has history anything to teach us ?

THE PRESIDENT Certainly it has.

In 1956, as you have just recalled, the Government of the day, of which I was a member, introduced a system - but it was M. Gaston Deferrc, not I, who proposed it - that promised a great deal and was indeed very promising for all the other Overseas Territories, the African ones in particular. It consisted in setting up a government, a local territorial government headed by the governor or high commissioner and of which the leaders had powers extending to practically all the island's problems.

-Q- But in the case of New Caledonia...

THE PRESIDENT That was in 1956. But I want to say something, because our listeners must fully understand this tragedy, regardless of the antagonisms, the racist factors that exist pretty well everywhere. In 1956 we succeeded in creating a situation in which the different sections of the population were perfectly atuned. I


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1956, that was nearly thirty years ago... In 1958 a Constitution was adopted, the Constitution of the French Republic, and all the overseas territories including New Caledonia, were able to choose between the "French"Community and independence. New Caledonia did not choose independence.

-Q- Yes, but everything is blocked today...

THE PRESIDENT I shall come back to the present day, but people must understandthe past so as to understand the exasperation of the conflicting forces and also the grave mistakes of the past. The exasperation originates in the fact that huge progress was achieved in 1956 and confirmed in 1958 : General de Gaulle wanted New Caledonia's cooperation, so that it would remain French when it had the option of independence, and the leaders, who at that time were Kanaks, said yes, subject to that statute being preserved. Yes of course... the Minister of the day went out there, gave every guarantee and even said ; things will be better... And five years later, in 1963, everything was abolished, all the authority was restored to the Governor, an imposed civil servant from metropolitan France. The local Ministers were removed. That was that. So people lost faith, and in a way still have no faith in France's word.

-Q- Bearing in mind the state of relations between the different communities, what will happen if a majority vote against independence in July ?THE PRESIDENT There will be a decision by the people. But there is no doubtthat, if the balance of interests as presented by M. Pisani in the name of the Government of the Republic is upset, we will be faced with a new situation of inevitable confrontation.

But, of course, it will be up to the Government to ensure, the issue having being decided through the ballot box, that measures are taken to keep open all the remaining chances of conciliation.

-Q- If a majority vote for independence in the referendum, whatguarantees....THE PRESIDENT You cannot say that, the plan forms a whole. The first of itsterms is not independence - the people out there will say what they like - but recognition of sovereinty as a fact, sovereignty based on origin.

Secondly, there are security considerations, guarantees, right acquired by those known as the 'caldoches' who are cf French^escent and are still French,

-Q- But what guarantee can there be that a Caledonian State, once it has achieved sovereignty, will preserve those rights ?THE PRESIDENT Firstly, successful implementation of that agreement ;• for thereis a third term - you interrupted me before I came to it -The first term concerns the Kanaks, the second the Caldoches, the inhabitants of European extraction and their descdhtants, and thirdly there is France's 'interest.

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 350 ~ ~ - 4 -

Under the plan, Trance's interest is maintained in such a way that she retains a decision-making capacity in the areas of security, justice and internal security. It is a formula very similar -with some elaboration - to that of thirty years ago.So one cannot talk of independence, but of independence in association with France' s presenceAnd all my listeners - for people out there are listening to us at the moment, or they will be as soon as we can be heard - would be wise to keep to keep in mind that the fundamental interests. of all concerned will be preserved, it won’t take a miracle to prove it, and that anything else is liable, ■ o you said, to be worse.

-Q- Considering the seriousness of this issue and the likelihood of its overs)iadov;ing French political life for many months, won’ t you have to take it directly in hand ?

THE PRESIDENT But I have done so from the start.-Q- But more directly, perhaps, than you have done so far ?

1 HI PRESIDENT Even more directly., wc work on it every day, together with the ] ^rlmeTITiTiTs Fer; the latter has taken direct responsibility for day-to-day action, but, of course, be keeps me informed.

-Q- VJi.ll you actually go to New Caledonia ? You went to Lebanon...

THE PRESIDENT Yes, I shall go to New Caledonia.

-Q~ VJhen ?

THE PRESIDENT Tommorow - Thursday. * *-Q- Do you think there is a risk of the Caledonian problem spreading

by contagion to French Polynesia, whose strategic importance was again stressed yesterday by the Armed Forces Chief of Staff ?

THE PRESIDENT Yes, although that statement has been interpreted too polemically, TcTFT.cneral Lacaze, whom I see very often, with whom I discuss these matters, who bears great responsibility, whose appointment as Armed forces Chief of Staff wc have just renewed for a further spell, was thinking ahead to the period around the year 2000. Yes, it is obviously very important for France that there shpuld bo a number of points around the world where the population trusts her, where she can defend her influence, her interests^ pcr presence.

You were right to wonder - who wouldn't -whether there is a risk of contagion. I ask myself that question too. How do I answer it in my mind ?* I think we arc in a quite specific situation there. The threegroups we have just spoken about are in racial conflict, with a whole range of aspects, and 1 have to say that something was done about these before wc took over the responsibilities of power. 1 have already mentioned what happened in 1963. But in the ensuing years an attempt was made by Paris, by the Government, by the President of the Republic, to reconnect the wires : under the last presidency, measures were taken in 197C>, then in 1979 and 1981 to restore to the local government many of the powers that had been taken away from it.


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-Q~ What will you say to the New Caledonians tomorrow ?t

THE PRESIDENT We took the process a little further, but there are those three communities, nothing can alter that fact. When it comes to the other Territories, and even more to the Departments - you are probably thinking of Martinique, Guadeloupe, Guiana, Reunion, it’s normal, and some people think of Corsica - the Government must keep well in mind, and it does, that the problem has to be considered in very specific terms.

In New Caledonia, we are not dealing with one people : there are the Kanaks, and then another people of French extraction, if I may put it thus, who have developed a collective consciousness. And that’s the cause of the tragedy. In the other Territories, the officials, the French from France are a very small minority : the population of Guadeloupe or Martinique, for instance, is essentially West Indian, Creole, although the term is incorrectly used.

-Q-They are French departments...THE PRESIDENT They are French departments, which means that their rights and legal position are different, but in their case there is one people, and decisions have been taken and will be taken by that one people in very many circumstances. Elections occur very frequently in France and her distant territories.

In all these circumstances, those who have stood for independence have all so far been crushed electorally ; they don’t represent much : a force for violence, but a limited one, and not a democratic force for self-expression.So there is a fundamental distinction to be made. Contagion must be rejected, because the will of a people who take their own decisions and decide every time that they want to remain French must be respected.

New Caledonia's problem, as I think you have all understood, is that an electoral victory, but a few thousand of hundred votes, cannot, by itself, settle the issue. That is why the situation is serious, and it seems to me that the French leadership and French public opinion should aim for a certain harmony, for this is a problem that concerns us all.

-Q-J.S that your aim in going there ?THE PRESIDENT Yes. I am going there to say what I believe is reasonable and to back the efforts of the High Commissioner, the Government Delegate, M. Pisani.

-Q-A referundum is planned in New Caledonia. Have you thought of calling on all the French to give their verdict on New Caledonia's destiny by referendumTHE PRESIDENT That would be perfectly constitutional. I think the French must, in any case, wake up to the difficulty,the magnitude and the seriousness of the problem and must each form their own opinion. Indifference would be disastrous.

* -Q-Does this mean that you could contemplate one ?THE PRESIDENT I could do it. Contemplating one is another matter.

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/ . | — -Q- Last summer you wanted to organize another referendum on extending ithe area covered by the referendum procedure. That referundum did not prove feasible?_ _=_ .Are .you considering another possible subject on which you might ;call on the French to decide in the months ahead ?

THE PRESIDENT I can do this. 1 have not considered it. 1 would not wish the referendum procedure to fall into disuse, but neither do I want to create an artificial device. I am not seeking at all costs to field a poll, to get the French to vote in favour of a particular question.

-Q- You are sometimes said to be intending to hold one on the presi- * dential mandate and its duration.THE PRESIDIM! I am said to intend many things, and with more added on... My answer! on this point is : 1 could do it, there may be good eau.se to do it, l have not jtaken any decision to that effect.

-Q~ It is not necessarily an artificial device,Mr President. It can perhaps serve to test French opinion.

No , T did not c:<*y it would be an artificial device. 1 said J would not apply an artificial device. 1 shall not put arid Irary quest ions,or use this pro- ; ccdure simply for tactical purposes of domestic poj i ties. If a matter affects France’s interests and if it is desirable that a decision be taken by franco, I shall do it.

-Q- And might New Caledonia fall into this category ?

Yes. It is not a problem of extreme gravity, but nevertheless, legally, constitutionally, it does./.


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s TAT I MPMT or M. f‘RANCOXS_ HIT rrijRANP^, PKl S 1DIIUT OL TUP. REPUBLIC ON nOcTf i(ADTo W TiXPVT si Ol\ r (20 Uanuary 198b)

"My intention in deciding to go to Noumea was on the one- hand to meet the representatives qualified U> speak for the New Caledonian political trends and dynamic' forces, on tlu; other to examine the situation on the spot with !! I cigar Pisani, Government Delegate.

1- "After the serious’events of the past few weeks, the first neces- sily was not to let the dialogue break ofi. I think tuis objective has been achieved. I received In turn the President and members of the Terri tori..! Government, the President and bureau of the Territorial Assembly, the parliamentary representatives, the Mayor and bureau of Noumea Municipal Council, tnc leaders of all the political parties or movements and of the Wallisian community, the trade union organizations, the chambers of trade, the religious author!ties and the principal customary chief s in the south. I he Government Delegate took part in these talks.

2- "l wanted to cheek personally on the security conditions . obtaining for persons and propcily in the archipelago. The military and civilian officers in eharce of security reported to me accordingly. 1 went to Poindlmio, in the north-easi of the island, to visit a Gendarmerie brigade whose- services has boon performed with exemplary coolness and courage in the most difficult moments. Within the next few days I shall convene a special session of- Parliament, to pass a bill prolonging the state of emergency.

3- "The measures needed for a resumption of normal economic activity are beingapplied at the moment. The Thio mine, for instance, is about to reopen.

4- "Pollowing the talks I had in Noumea, the Government Delegate will complete and elaborate on his proposals of 7 January. The different New Caledonian communities, all of whom are attached to that land and who have to learn to live together, must be given the vital guarantees for cohabitation.

5- "Prance means to preserve her role and strategic presence inthat part of the world. I have asked the Prime Minister, whom 1 received on my return to Paris, to take all necessary measures to tins effect, particularly with regard to the installations needed for a reinforcement of the Noumea military base. . 6

6- "Those are the specific points I had to tell you about. Once again, I hope that the French will unite in order that (ranee's interest may'gain precedence over the party spirit" ./.

01985'] AUSTRALIAN INTERNATIONAL LAW NEWS 354

SOUTH PACIFIC FORUM COMMUNIQUE.

The fifteenth South Pacific Forum was in Funafuti, Tuvalu from 27-2Q August 1984. The meeting was attended by Heads of Government from Australia, Cook Islands, Federated States of Micronesia (as an observer), Fiji, Kiribati, Nauru, New Zealand, Niue, Papup New Guinea, Tuvalu, Vanuatu and Western Samoa. Solomon Islands was represented by the Minister for National Planning and Development and Tonga by the Minister for Foreign Affairs and Defence. The Prime Minister of Tuvalu, the Rt Honourable Dr Tomasi Puapua, chaired the meeting and the Deputy Prime Minister and Minister for Finance assumed the Tuvalu seat. The main issues discussed were:

D colonisationThe Forum reviewed developments since

its last meeting in relation to New Caledonia and adopted the following decision: The Forum took note of the progress made since its last meeting in the process of decolonisation of New Caledonia. It expressed its disappointment that the French Government had not been able to respond to the proposal for a Forum mission but asked France to provide Forum countries with information on a continuing basis.

The Forum reaffirmed its support for the transition of New Caledonia to independence in accordance with the wishes of its people and in a manner which guarantees the innate and active rights of the Kanak people and the rights, interests and aspirations of all its inhabitants. It urged the French Government and all political and community groups, including the Independence Front, to keep talking to ensure that this transition to an independent multi-racial New Caledonia is achieved speedily and peacefully within a shorter time scale than present envisaged.

It was the Forum's view that the process of decolonisation would be advanced by a public statement by the French Government that independence was the desirable, logical and acknowledged outcome of the Act of Self-determination currently planned for 1989, and that this referendum should be brought forward by agreement between all the parties involved.

The Forum believed that France should transfer additional political and administrative powers to the territory to ensure that it is adequately prepared for independence and take the practical steps necessary to guarantee the full and active participation of the Melanesian community in the territory's educational, vocational and administrative institutions.

The Forum decided that the question of seeking re-inscription of New Caledonia on the United Nations list of non-self-governing territories should be kept under continuing review. It was further agreed that Forum members might, individually, bring their concern with the situation in New Calendonia to the attention of the United Nations. In this context, a number of Forum leaders indicated that their missions in New York would circulate this communique and that their general debate statements would make appropriate mention of New Caledonia.

Forum leaders agreed that a five member group, at ministerial level, should discuss these issues with the Independence Front and with the French authorities to ensure Forum views are fully understood.

Regional* nuclear mattersFollowing the decision of the previous

meeting, the Forum gave further consideration to the concept of a nuclear free zone in the region, and in particular a draft set of principles regarding its establishment submitted by Australia. It also had before it a proposal from Nauru regarding action to amend the London Dumping Convention to prohibit totally the dumping of nuclear waste.

The Forum noted the importance of the initiative for a nuclear free zone in the region in the context of the disappointing lack of progress in international disarmament negotiations. It was felt that efforts should be intensified to encourage the conclusion of a comprehensive test ban treaty which would outlaw all forms of nuclear testing by all states in all environments. The Forum also noted that 1985 was a year of review of the Non-Proliferation Treaty. Progress towards a nuclear free zone in the region could make a useful contribution to maintaining the momentum of international debate on disarmament and arms control.

Forum members also considered the report of the joint New Zealand, Australian and Papua New Guinea scientific mission that visited the French nuclear testing site on Moruroa Atoll in October 1983 at the invitation of the French Government.* They noted that, while the findings of the mission allayed to some degree the concern that had been expressed about the short-term effects of the French nuclear tests, they provided no reassurance about long-term consequences nor in any sense diminished Forum opposition to testing in any environment. They accordingly reiterated their strong opposition to continued nuclear testing in the South Pacific region by France or any other country.

After discussion of the various interrelated aspects of nuclear activity in the region, the Forum agreed on the desirability of establishing a nuclear free zone in the region at the earliest possible opportunity in accordance with the principles set out in the Australian working papers. These principles were:• that South Pacific countries should be free

to live in peace and independence and to run their own affairs in accordance with the wishes and traditions of their people;

• South Pacific, cquntries should enjoy peaceful social and economic development free from the threat of environmental pollution;

• South Pacific countries acknowledge existing international treaties, organisations and regional arrangements, such as the Charter of the United Nations, the Nuclear Non-Proliferation Treaty and the Law of the

Sea Convention, which contribute to their objectives;

• there should be no use, testing or stationing of nuclear explosive devices in the South Pacific;

• no South Pacific country would develop or manufacture, or receive from others, or acquire or test any nuclear explosive device;

• nuclear activities of South Pacific countries should be in accordance with applicable international principles and treaties, notably the NPT and take into account regional arrangements; and

• that South Pacific countries retain their unqualified sovereign rights to decide for themselves, consistent with their support for these objectives, their security arrangements, and such questions as the access to their ports and airfields by vessels and aircraft of other countries.

Reference was made to the particular importance of the principle of freedom of navigation and overflight and the treaty obligations of Forum members.

A working group of officials was appointed to meet as often as may be required to undertake an examination of the substantive legal and other issues involved in establishing a nuclear free zone in the region with a view to preparing a draft of a treaty for consideration by the Forum meeting in 1985. The working group is to be chaired by Australia and would be convened in consulta tion with the Director of the South Pacific Bureau for Economic Co-operation (SPEC). All members of the Forum would be entitled to attend.

The Forum agreed that the proposals by Nauru to strengthen the London Dumping Convention would also be examined by the j group. The dumping and disposal of nuclear waste in the region was intolerable and unacceptable and Forum Governments were strongly committed to this aspect of the convention and protocols being negotiated under the auspices of the South Pacific Regional Environment Program (SPREP).

The Forum also supported a suggestion that Governments continue to protest individually, as well as collectively, to France over its persistent nuclear testing and to Japan over proposals to dump nuclear waste in the Pacific.

The Forum also welcomed the declaration on French nuclear testing at Moruroa Atoll made by member states of the Permanent Commission for the South Pacific (PCSP) on 6 i July 1984. They regarded the declaration as a !

I


further expression of the united opposition by countries of the Pacific to French nuclear tests in the South Pacific. The Forum was also of the view that it would be useful for SPEC and the PCSP secretariat (representing Chile, Columbia, Ecuador and Peru) to maintain contact on the question of French nuclear testing.

Single regional organisationThe Forum received an interim report from

the committee of Foreign Ministers established by the fourteenth Forum to examine the implications of establishing a Single Regional Organisation (SRO).

The committee had not been able to complete its consultations with metropolitan countries and their °acific territories or completely assess all the implications of an SRO. A number of members of the Forum expressed the view that while an SRO may be a desirable goal in principle in the longer- term, the benefits received from the existing regional institutional arrangements should be safeguarded. The consensus reached was that the committee should complete its work and report back so that the matter could then be properly considered.

Regional co-operation as it affects smaller Forum members

The Forum discussed a proposal from the Government of Kiribati that special attention be accorded the problems faced by smaller Forum pnembers. The Forum recognised the seriousness of the issue raised and the need to identify practical solutions to problems in the areas of transportation, trade, food and water supply, communications and energy among others. The Forum decided to set up a committee of officials to examine the problems, recommend solutions and report to the sixteenth Forum. The Governments of Cook Islands, Fiji, Kiribati, Nauru, New Zealand, Niue, Tuvalu and Western Samoa would be represented on the committee.

R gional tradeThe Forum received the report of the third

meeting of the regional committee on trade, held in Kiribati in July 1984. It noted that while total trade under the South Pacific Regional Trade and Economic Co-operation Agreement (SPARTECA) had increased during its three years of operation, exports from most of the larger island countries had grown while exports from some small island countries had actually decreased.

The Forum noted the relevance of this situation to its decision on the question of regional co-operation as it affects smaller Forum members. It also welcomed moves initiated by the regional committee on trade with reaard to modifvinq the rules of origin and increasing Forum island countries apparel exports to Australia. The Forum noted the relevance of discussions at the political level to solving difficult trade problems which might arise between its members.

The Forum agreed in principle to promoting duty free and unrestricted access for handcrafts traded between Forum island countries, to be implemented on a bilateral basis.

Pacific Forum LineThe Forum received a progress report on

the Pacific Forum Line and noted with satisfaction the continuing improvement in its trading and financial situation. The Forum reaffirmed its strong support for the regionally-owned shipping line as a key vehicle for providing regular reliable and economic shipping services to its shareholders. Appreciation was expressed for the services rendered by the retiring Chairman of the Line, Mr H'.L. Julian.

EnergyThe Forum received a report representing

in broad terms potential options for improvement in the terms of petroleum pricing and supply arrangements to Pacific island countries. It agreed that exploration of the options be continued and the results presented for consideration at its next meeting.

Trade embargoes in fisheries productsThe Forum noted a paper presented by

Solomon Islands regarding events arising from the arrest of the Purse Seiner, Jeanette Diana which was fishing illegally in Solomon Islands Exclusive Economic Zone (EEZ). The Forum expressed its continuing concern at the failure of the United States to recognise the applicability of 200 mile EEZ to tuna and at the fact that that country endeavoured to enforce its position on this issue through embargo legislation.

The Forum considered that the satisfactory long-term solution to this problem lay in the conclusion of a multilateral agreement with the United States, and called for a prompt and successful outcome to negotiation to that end scheduled to begin in Suva next month.

Law of the Sea ConventionThe Forum reaffirmed the importance of

the Law of the Sea Convention for the orderly and rational use of the world's oceans and their resources and its significance to the countries of the South Pacific. Note was taken of the fact that the convention remains open for signature until 9 December 1984. The Forum urged all countries to sign the Convention and take active steps towards its ratification.

ReportsThe Forum accepted the reports of the

pre-Forum SPEC committee, the Director of SPEC's Annual Report for 1983-84, the report of the Director of the Forum Fisheries Agency and the report of the Vice-Chancellor of the University of the South Pacific.

Federated States of MicronesiaThe President of the Federated States of

Micronesia reported to the Forum on progress in negotiations with the United States on a compact of free association. Negotiations, which had extended over fourteen years had been pursued in a spirit of co-operation. Following the establishment of a compact, which is expected to take place early next year, his country would enjoy sovereignty over its foreign policy, internal matters and rights over its 200-mile Economic Zone. The President observed that the principles of the proposed nuclear free zone concept were consistent with the compact.

Next Forum sessionThe sixteenth Forum will be hosted by the

Government of the Cook Islands on 4-6 August 1985.


ANZUS COMMUNIQUE

The 33rd meeting of the ANZUS Council took place in Wellington on 16 and 17 July 1984. The United States Secretary of State, George Schultz, the Australian Minister for Foreign Affairs, Bill Hayden, and Minister for Defence, Gordon Scholes, and New Zealand's Minister of Foreign Affairs, Warren Cooper, and Minister of Defence, David Thomson, represented their respective Governments.

During their visit the leaders of the United States and Australian delegations called on the Prime Minister, Rt Hon. Sir Robert Muldoon, and Mr David Lange, MP, Prime Minister-elect.

Council members reaffirmed their commitment to the maintenance of peace, stability, and democratic freedoms. They expressed their belief that the ANZUS partnership, based as it is on common traditions and shared interests, contributes to this. They welcomed the increased exchanges that had taken place on political, economic, security and defence issues and agreed that defence co-operation, including combined exercises, visits and logistic support arrangements, played an essential part in promoting mutual security. Access by allied aircraft and ships to the airfields and ports of the ANZUS members was reaffirmed as essential to the continuing effectiveness of the alliance.

Council members reviewed a broad range of global issues and regional developments of concern to the alliance. These included the persistent Soviet arms build up in the Pacific region as well as in Europe; the need for early resumption of arms control negotiations; the continuing repression and occupation by Soviet forces in Afghanistan; and Vietnam's occupation of Kampuchea.

The Council members gave special attention to arms control and disarmament issues. They recognised that arms control agreements which produced balanced, effective and verifiable reductions in armaments would assist in reducing international tensions and in strengthening international security. They agreed that the early conclusion of such agreements was of the highest importance. Among arms control measures, a substantial reduction of nuclear weaponry to balanced, more stable levels was of the greatest urgency. Council members expressed concern at the Soviet Union's refusal to resume the START and INF talks and called for the resumption of those negotiations without delay.

They endorsed efforts by several countries, including the United States and Australia, to establish a political dialogue with the Soviet Union and to make progress on arms control. The New Zealand and Australian Council members welcomed the readiness of the United States to resume negotiations at any time and without preconditions on reducing nuclear weapons and its agreement to discuss effective and verifiable limits on antisatellite weapons with the Soviet Union.

The Council members reaffirmed their strong commitment to preventing the proliferation of nuclear weapons and agreed to intensify their efforts to strengthen the international non-proliferation regime through multilateral and bilateral measures. They noted that the Third Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons is to take place in 1985. Progress in fulfilling all the Treaty commitments, including Article VI which commits parties to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date, is important to the international non-proliferation regime and the review conference.

In this context they reaffirmed the commitment of their Governments to work towards the goal of a comprehensive and fully verifiable nuclear test ban treaty. They expressed satisfaction that the Western group of countries in the Conference on Disarmament in Geneva had agreed on a draft mandate for the nuclear test ban ad hoc committee. They urged the Conference to move promptly to re-establish the ad hoc committee under this mandate.

The Australian and United States members affirmed the important contribution of the joint Australian-United States defence facilities to arms control verification, effective deterrence, mutual security and maintenance of the stability of the strategic balance.

The Australian and New Zealand Council members indicated that they shared fully the concerns of other countries of the South Pacific region on nuclear issues, including French nuclear testing. They gave an account of the progress made in the discussions among members of the South Pacific Forum on a South Pacific nuclear free zone. The « ANZUS partners also noted that the proposed South Pacific nuclear free zone would be discussed further at the 1984 meeting of the" South Pacific Forum in Tuvalu.

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS

The Council members agreed that a convention to prohibit the development, production, stockpiling, transfer and use of chemical weapons, with adequate provisions for compliance and verification, would be an important disarmament measure. The use of chemical weapons in the Iran-lraq war and evidence of their use elsewhere reinforced the need for urgent conclusion of a convention to ban chemical weapons. The Australian and New Zealand Council members welcomed the recent initiative taken by the United States Government in the Conference on Disarmament.

They noted the contribution to word peace and security made by the Antarctic Treaty which is the basis of international cooperation in Antarctica and bans all military activities and nuclear weapons there. They expressed their continued commitment to the Antarctic Treaty system.

The Council members agreed that the political and strategic outlook would be greatly influenced by the economic environment and that it was crucial to sustain the economic recovery and to spread its benefits more widely. Equally the debt problem which many countries were facing needed to be managed effectively. The threat to the world trading system posed by the spread of protectionist measures also needed to be resisted. This was particularly so in the field of agricultural trade which suffered from long-standing protectionist measures and the emergence of export subsidization on a scale which threatened markets for many countries.

Council members welcomed the emphasis placed by the major industrialised countries at their recent summit meeting in London on the importance of global economic interdependence and expressed the hope that the recognition of this interdependence could form the basis for future action. The importance of interdependence was nowhere more evident than in relation to the debt problem which, required a careful and balanced approach. Economic adjustment in the debtor countries was seen as an essential condition for solving debt problems. At the same time a co-operative approach was required from the industrialised countries. Assistance to the debtor countries had to be provided under conditions that recognised the political and social difficulties faced by these countries.

The increasingly important and central role in the management of debt problems played by the International Monetary Fund was welcomed. Now that some of the most heavily indebted countries were undertaking the first, necessary domestic adjustments, international attention was focussing increasingly on longer-term changes that may be required to strengthen the open trade and payments system, with special attention being paid to the closely linked problems of debt and trade. The work being conducted on these issues by a variety of groups reflected an encouraging convergence of views. Council members considered that this had opened the way for discussion and early agreement on practical approaches to these issues.

The Council members reviewed developments in the South Pacific. They welcomed the fact that the area remained one of peace and co-operation and that it was firmly attached to democratic systems and traditional values. Change was being accommodated and new opportunities were being taken up. The independent and self- governing countries of the region were strengthening relationships with one another and with organisations and countries outside the region that had constructive contributions to make.

Council members welcomed progress towards self-government in the Trust Territory of the Pacific Islands. They wanted to see ratification of the compact of free association and termination of the trusteeship concluded without delay and looked forward to the Micronesian states expanding their links with countries and organisations in the Pacific region.

Council members agreed that significant progress has been made in constitutional evolution in New Caledonia, but noted there was a need for continued participation of all parties in the constitutional process. Peaceful resolution of the situation in that territory was of great concern to all countries in the area and Council members noted that it was important for Fra’nce to maintain and expand its dialogue with South Pacific Forum members on this issue.

The Council members agreed on the importance of effective regional institutions in the area. They noted the major political role of the South Pacific Forum in which Heads of Government of island nations and Australia and New Zealand were able to work toward shared approaches on current issues. Maritime matters, such as fisheries co-operation and development, and possible nuclear waste dumping were of major concern to countries of the region. Council members commended the valuable work being undertaken in these fields by the Forum Fisheries Agency and the South Pacific regional environmental program. Members agreed they would continue supporting and encouraging these regional co-operative endeavours through financial contributions or other means.

The Australian and New Zealand Council members underlined the significance of the 1982 Convention on the Law of the Sea for the countries of the Pacific region and stressed the importance of wide adherence to it.

Recognising that political stability and cooperation are underpinned by economic security, Council members expressed admiration for the resilience and good management of island nations which had, overall, enabled island nations to cope with the effects of global economic recession and natural disasters. They recognised, nevertheless, that continued bilateral and regional aid, and encouragement of trade and investment were essential to ensure the well-being of the people of the area, and that such help would be mutually beneficial.


Council members reaffirmed their desire to work with the governments of the Pacific Island countries in the interests of the stability and security of the region. Australia and New Zealand intend to maintain and develop their bilateral defence co-operation programs with, and assistance to, island governments in fields such as maritime surveillance, civil action, emergency and disaster relief and training. The United States, for its part, will continue to provide assistance in these areas.

The Australian and New Zealand members provided details of recent national initiatives designed to reinforce the maintenance of regional security and stability. The New Zealand member explained that the New Zealand Defence Review completed in 1983 placed greater emphasis on the role of the New Zealand Armed Services to provide assistance if requested to South Pacific countries. The Australian member informed the council that the Australian Government's offer to develop a Pacific patrol boat to meet the island countries' expressed maritime surveillance needs had been accepted by several South Pacific countries. * *

Council members emphasised their continuing support for the Association of South East Asian Nations and welcomed the contribution ASEAN makes towards the stability and economic progress of the region. The council members also noted the increasing significance of their own economic and political links with the ASEAN members.

Council members expressed full support for the principles adopted by ASEAN in the search for a lasting settlement in Kampuchea. They reaffirmed their conviction that the conflict in Kampuchea should be settled by peaceful means. They agreed that a negotiated settlement should be based on respect for the independence, sovereignty and territorial integrity of Kampuchea, should take into account the desirability of national reconciliation and should recognise the legitimate security interest of all parties concerned. To this end, they again urged the early withdrawal of Vietnamese troops under conditions that would allow for a peaceful transition and a comprehensive settlement which would enable the Khmer people freely to decide their own future. Members welcomed the continuing humanitarian assistance offered by the international community to the Khmer people.

Council members' trade within the Asian- Pacific region is now larger than with any other group of countries. This reflected not only the continuing strong growth in their trade with North East Asia, but also an increasingly dynamic element in economic relations with the ASEAN countries. They agreed that the growing strength of trade and investment ties with ASEAN reinforced the importance of political relationships.

Recent visits by President Reagan and Prime Minister Hawke to China were discussed. The Council members agreed that China's continued commitment to modernisation and to constructive relations with others in the region was a positive development which should be encouraged.

The Council members welcomed the steps taken by Japan to move towards liberalising access to its market and expressed the hope that this process would be maintained and accelerated to the benefit of international trade as a whole. The Council members noted the strengthening of Japan's ties withuhe nations of South East Asia and the South Pacific, including its contribution in the field of development assistance. They also nbted Japan's commitment to an enhanced capability for self defence purposes.

Council members reaffirmed their commitment to the sovereignty and independence of the Republic of Korea. They called upon the Democratic People's Republic of Korea to renounce its policies of hostility towards the Republic of Korea, as evidenced by last year's bombing in Rangoon, and to accept proposals aimed at reducing tensions on the peninsula through the implementation of practical confidence-building measures. The Council members reaffirmed their view that direct negotiations between the two Koreas provides the only realistic basis for a durable reconciliation. Noting that a reduction of tensions would considerably enhance regional security, they called upon the Democratic People's Republic of Korea to enter into negotiations with the Republic of Korea as a genuinely equal participant.

Council members reaffirmed their opposition to the continued Soviet occupation of Afghanistan and condemned the recent Soviet offensive which had caused considerable suffering and loss of life among the Afghan people. Council members called on the Soviet Union to withdraw its forces in accordance with successive United Nations resolutions. ;

Council members exchanged views on developments in the Indian Ocean region and noted the strategic significance of the region. The Australian Council member informed the meeting that the Australian Government had adopted guidelines for a comprehensive and integrated approach to Indian Ocean issues which included support for an Indian Ocean zone of peace.

The Council members expressed their con cern at the serious loss of life and the risk to peace and security in the Gulf resulting from continuation of the war between Iran and Iraq. They deplored all attacks on shipping in the areas and called on both countries to respect the right of free navigation for all non-belligerent shipping. They expressed their support for the security and territorial integrity of all states in the area, in accordance with the Charter of the United Nations. The council members also urged Iran and Iraq to act with restraint and expressed the hope that the two countries would seek ways of bringing the conflict to an end and restoring peace to this area. *

It was agreed that the next Council meeting would take place in Canberra in 1985 at a date to be decided.


POSTPONEMENT OF ANZUS COUNCIL MEETING *

As host of the ANZUS Council due to meet in Australia in July the Government has decided that it is necessary at this point to announce the postponement of the meeting.

The serious difficulties between the United States and New Zealand have arisen following the New 2ealand Government's decision on United States naval vessels.

In the light of the New Zealand decision# the United States response to that decision, and other recent developments including the curtailing of intelligence exchanges between the United States and New Zealand, it is clear that the holding of a regular ANZUS Council Meeting at the present time would be impracticable.

These developments need to be kept in perspective. As I said at the White House on 7 February, an important aspect of the ANZUS relationship has become a matter of close concern. But the ANZUS Treaty remains, it needs to be emphasised that this point is not in dispute between any of the ANZUS partners.The pre-eminent responsibility of the Government is to ensure the protection of Australia's essential national security interests, and it will now do this through bilateral channels with both partners while the present circumstances prevail.

In the case of the United States, the Australian Government has been reassured by views expressed to it publicly and privately by President Reagan and other senior representatives of the Administration, that the Australian/United States Alliance under ANZUS remains as strong as ever.

In the case of New Zealand, we propose to pursue our Important defence relationship on a bilateral basis reflecting both our traditions and the common need to respond to regional security requirements.Further announcements on specific arrangements in regard to both relationships will be made shortly.

* (This is a text of a statement dated 4 March 1985 by the Prime Minister of Australia, the Hon. R.L. Hawke).

NEW ZEALAND POLICY ON NUCLEAR POWERED SHIPS AND SHIPS BEARING NUCLEAR ARMS*

Mr Tanaka: I would like to question you a little more specifically on nuclear issues. Do you think the ANZUS Treaty and the new non nuclear forces, are compatible?

PM. Yes.T. So how?PM. Well the ANZUS Treaty is almost spectacularly short of

specifics; that's one of the considerable advantages of it.It is actually a statement of our commitment to each other:Australia and the United States. It is an honest expression of the fact that we are in it together and it does not go into the great specificity of other defence treaties and how a command structure is established. It is a charter for a working relationship in defence/and that of course means what the partners agree it shall mean;and it was concluded a third of a century ago when there was not anything like the scale of nuclear use and certainly no global spectre of the nuclear deterrent. It had certainly started to emerge^ but the world was not positioned then as it is today and from New Zealand's point of view it was really traditionally a conventional weapon defensive alliance. We have of course developed in different ways amongst the partners.Australia, which has with its new government formed a very clear position, that is from a tradition of a very much greater strategic involvement by the United States, defence • interests with an infrastructure of defence bases and a much more intensive pattern of visiting than New Zealand has developed. I think ;as well,that the Treaty requires consultation, disclosure, cooperation. The United States is a very important ally of New Zealand^and it would be contrary to the wish of the majority of New Zealanders and it would be politically unacceptable for New Zealand^to make some gesture of unilateral withdrawal from ANZUS and that's definitely not the intention of my Government.

*(The New Zealand Government has a policy of not permitting such ships to call into New Zealand ports. The United States has a policy of not indicating whether a vessel is nuclear armed. In this interview between the New Zealand 4 Prime Minister, Mr. Lange,and Mr. Tanaka of the Japanese newspaper Asaho Shinbun the relevant issues are canvassed. This is followed by the text of a private member bill which would seek to give statutory support to the Government's " policy by way of creating a criminal offence.)



T. The US has a policy of not qualifying whether a naval vessel is nuclear armed or not. This is a problem for the Japanese also. If you reject all the non-nuclear or thenuclear armed ships^it means that you will reject all the naval vessels of the US,since there is no way of clarification.

when you are using the word verification PM. V.’ell this is a problem/ My own feeling is that oneought to be able to trust one's allies,and I would certainly not want to be heard saying I distrust the United States.In the end, after our negotiations and talking with them,the policy is accepted,then I certainly won't be clambouring around on board their ships to check their word. I don't expect them you see to change their policy of disclosing, but I do expect, if the policy is worked through, for it . to be honoured. So just as you in Japan have the right to that expectation.

T. So you think you can get some assurance from the United States that some ships are actually non-nuclear armed by an official statement on the part of the United States?

PM.- No, as I said. I don't expect the United States - it would be a very radical departure from the United States policy to make disclosure.

T.. Not disclosure,but the general statement that the United States will respect the wishes ...

PM...Well clearly that's one of the points of pursuing this policy.

T. How do you think that the port of calls are essentialto the United States fleet? That the United States shouldcallsay that without port of / there is no Treaty understanding at all?PM. Yes I am aware of those statements, and that is a matter which I shall be taking up with them again in September.


T. I don't think the port of calls are significant ,so do you think that they are just flag showing - showing a symbol of the alliance?

PM. What has happened to the alliance is simply that it has become a code word now for nuclear ships and port calls. The alliance is very much broader than that. In October we will oe giving a land and air joint exercise over New Zealand.

I think by the end of the year N$w Zealand would have come to a realisation that ANZUS means more than port calls. Atthe moment the Secretary of State for the United States is I think correct in his observation about the significance of port calls because,honestly,in New Zealand they have become what ANZUS is about. In fact it is a very much broader thing than that. I- don't propose to go into the strategic importance of them; the defence significance of them or the possibilities of their continuing. That is a matter which I am reserving comment on,in New Zealand and abroad,until such time as I have gone into more talks with the United States.

T. The Secretary of State said that the United States would not enter New Zealand ports for about half a year. So will you have enough time to negotiate with them?

PM. What happened was that the election in New Zealand was on July 14, and on July 15 I flew into Wellington to meet Secretary of State Shultz, because I considered that it was important to show a degree of goodwill. In turn he was fair enough to say that there was a chance to talk,and the facts are that we do not have a visit proposed here for some months yet to come. The next combined exercise is,I think,called "Sea Eagle", which is to take place in the Tasman in February next year. It s operational base of port will be actually in Sydney,not in New Zealand,but the pattern has been after such joint exercises for a vessel or two on returning from the exercise to the United States to call at a New Zealand port. Now that currently would seem to be the first possible visit, and so we have some months in which we can talk.


T. Japan has denied the port calls to nuclear armed ships, and we are maintaining the alliance with the United States.Can you negotiate with the United States using the precedent of Japan?

PM. Well there are lots of propositions one could put up.One is the Japanese one. Another one is the position of some countries within NATO, Norway for instance. But in the end, you see,I don't suppose that the arguments have anyfundamental validity,because the strategic significance would certainly vary within every situation. While it might be a useful argument to call in my aid that/for instance,Japan or for instance Norway have different understandings with the United States or in fact that Australia, in respect of weaponry, has for its B52 base in Darwin a special understanding, I mean those are specific ad hoc responses to the particular situation and what we are doing really is creating a specific understanding about New Zealand,and in that respect I guess you are not really trying to argue on the basis of what some other countries have done, \though the other countries show that there is a willingness on the part of the United States not to have some monolithic word engraved in stone understanding about it.

Nuclear Free Zones

PM. You have a problem with that one. The reality is that you are going to have in our policy talks about a South Pacific nuclear-weapons-free-zone the nomenclature Is probably not important,but what it means is what's important. And it means really that there will be a first step taken to scale back or to stop nations in the Pacific venturing into nuclear weaponry. The cessation of testing, prohibition from dumping and a veto on the ins'tal'lartiotr, deployment, fluww^acture or use of nuclear weaponry. That will be the common commitment insofar as it is the current policy of the governments that we will be talking to initially that they do not engage in those activities. We will be essentially,I suppose/Sealing in the status quo and preserving any intensitification or thought of a build up - it is in that respect I suppose, a refinement

or enhancement of a non-proliferation treaty type mechanics . from there it will be possible,1 believe,to have a more demanding regime7but I am persuaded that we ought to start from our areas of agreement and build on them,rather than trying to get an agreement^which frankly is unrealistic / because we need to make any zone effective, to have it acknowledged and honoured by those countries, who are essentially the super-power countries," whose cooperation we obviously need.

T. So you don't think there will be any initiative taken in the coming Conference . . .

PM. Oh yes we are going to take an initiative in Tuvalu , and the Australians are taking the initiative,and we have some suggestions to make about that,and in 1975 we took the steps which eventually became enshrined in the United Nations Resolution on 12 December 1975/which confirmed the principle of the South Pacific nuclear weapons free zone. But all I am saying about nuclear weapons free zones is that when you start to walk^you don't run a marathon^and that's where we are.

New Zealand's Economic VulnerabilityT. So in the end you are just trusting the United States not to have any radical reaction to New Zealand by the fact that you reject nuclear-armed ships or nuclear-powered ships.In general terms, economically, culturally, socially, politically everything - the vulnerability of New Zealand . . .

PM. The whole concept of economic vulnerability is interesting* I started the interview by talking to you about my feeling of vulnerability^for instance with regard to Japan. There is absolutely no doubt that New Zealand is vulnerable given our extraordinary dependence on exports and our historical commitment to some major markets and,if you are talking about the United States, an absolutely critical trading partner + If you are to talk about mere economic *situations, there is an enormous potential for forms of political retaliation. There can be protectionism measures taken by any country. But that you see, in the en<^ is not the issue. The United States does not operate as some sort of political retaliator. We have our traditional association

with the United States because we share common legacies, democratic traditions, significant genetic stock-sharing even from mainland Europe,and we have had a long period of association right from the time of European settlement in New Zealand. We have lots of friends,and indeed we were at pains as a Government to allow our airline to make a commercial decision which would have upset our friends in Europe,but would have brought some $6-7^million worth of New Zealand business to a major American plane-maker. That type of association is now so deeply entrenched I do not regard us as being at risk of the United States. That is not the behaviour which they have shown in other periods of edgyness ornegotiations which have adopted#and there have been specific assurances from Secretary of State Shultz that that is not part of the United States strategy.


PROHIBITION OF NUCLEAR VESSELS AND WEAPONS

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A BILL INTITULED

An Act to prohibit the entry into New Zealand or its territorial sea of any nuclear powered ship or any aircraft or ship carrying nuclear weapons

5 BE IT ENAOIED by the General Assembly ol New Zealand in Parliament assembled, and by the authority of the same, as follows:

1. Short Title—Phis An may be c ited as the Prohibition of Nuclear Vessels and Weapons Ac t 19S4.

10 2. Prohibition of entry of nuclear-powered ship or shipor aircraft carrying nuclear weapons—i l ) The entry into New Zealand or its territorial sea las defined in section a ol the Territorial Sea and Exc lusive Economic Zone Act 197 7) ol any nuclear-powered ship or any ship or aircraft carrying

la nuclear weapons is heicby prohibited.(2) Any person who causes or authorises the entry ol any

ship or aircraft in contravention of subsection (1) ol this section commits an oflence, and shall be liable on conviction to a fine not exceeding $500,000.


COMMONWEALTH HEADS OF GOVERNMENT REGIONAL MEETING IN PORT MORESBY ON 8 AUGUST 1984.

Commonwealth Heads of Government from the Asia-Pacific region met in Port Moresby on 8 August. Eighteen countries attended the meeting: Australia, Bangladesh, Brunei, Fiji, India, Kiribati, Malaysia, Maldives, Nauru, New Zealand, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, Western Samoa and Vanuatu.

A special welcome was extended to Brunei which had become a member of the Commonwealth at the beginning of the year. The Prime Minister of Papua New Guinea, the Rt. Hon. Michael Somare, was in the chair.

Heads of Government discussed a number of political and economic issues of common concern to the Asia-Pacific region. They were conscious that many of the problems of the region could not be solved without understanding and active co-operation of countries outside it. They condemned the continuation of French nuclear testing in the Pacific and expressed their united opposition to any proposal to dump nuclear waste in the Pacific.

They called for a greater sensitivity by the wider international community to the interdependence of states and the importance ot its paying particular attention to the needs and aspirations of small states, of which there are many in the region, and which are especially vulnerable to the vagaries of the current international political, social and economic order. In this context they looked forward to the outcome of the study on the special problems of small states organised by the Secretary-General in pursuance of the decision by the Heads of Government meeting in Delhi last November.

Heads of Government considered that thp CHOGRM process served a valuable purpose in facilitating useful consultative and cooperative relationships within the region. They agreed that they would continue to meet on a periodic basis, as occasion warrants, and that their next meeting would be held in Malaysia.

Until their next meeting CHOGRM activities would be co-ordinated by Papua New Guinea as current host government with assistance as necessary from the Commonwealth Secretariat.

Heads of Government agreed that the consultative and working groups, whose reports were before the meeting, should continue to function in the existing areas of trade, industry, energy and agriculture, and that their activities should be the subject of review at senior official level at an appropriate time. They also welcomed the report of the group of experts on maritime issues which they had commissioned at their last meeting and agreed that its recommendations should be carefully examined in capitals.

They also agreed that a working group

co-ordinated by Fiji should be set up to examine ways in which the report's recommendations, subject to acceptance by governments, can be translated into specific programs of action. In the meantime, they asked the Secretary-General to ensure that the report is given wide circulation elsewhere in the Commonwealth and beyond.

They decided that the funding of the activities of the groups should retain its voluntary character and become more widely subscribed by member governments. In this context they requested the Secretariat to circulate proposals for a formula for contributions by governments on the basis of relative capacities.

Heads of Government were particularly appreciative of the opportunity to meet in Port Moresby during the celebrations marking the opening of the new Parliament building and expressed their thanks to Prime Minister Somare and the Government and people of Papua New Guinea for the warmth of their welcome and the excellent arrangements for their meeting.


A6

SIX NATION PEACE INITIATIVE: The Delhi Dec Li rat ion

The Delhi Declaration is the second joint statement tn t,e issued by the six heads of state or government ot Anient no, : cm, Greece, Mexico, Sweden and Tanzania. Issued on 28 Jan. ,ry at ter a two day meeting in New Delhi, the Declaration reiter.it.es the call of the original May 1984 Declaration for a nuclear ;reeze on nuclear disarmament. It also calls for the prevention of an arms race in outer space, and, most importantly from Australia's point of view, for a comprehensive test ban treaty.

The text of the Declaration follows:-

FORTY YEARS AGO, WHEN ATOMIC HOMES WERE BLASTED OVER HIROSHIMA AND NAGASAKI, THE HUMAN RACE BECAME AWARE THAT IT COULD DESTROY ITSELF, AND HORROR CAME TO DWELL AMONG US. FORTY YEARS AGO, ALSO,THE NATIONS OF THE WORLD GATHERED TO ORGANISE THF INTERNATIONAL COMMUNITY, AND WITH THE UNITED NATIONS HOPE WAS BORN TOR ALL PEOPLE.

ALMOST IMPERCEPTIBLY, OVER THE LAST FOUR DECADES, EVERY NAEION AND EVERY HUMAN BEING HAS LOST ULTIMATE CONTROL OVER ! Hi. ; R OWN LIFE AND DEATH. FOR ALL OF US, IT IS A SMAi.L GROUP OF MEN AND MACHINES IN CITIES FAR AWAY WHO CAN DECIDE OUR FATE. EVERY DAY WE REMAIN ALIVE IS A DAY OF GRACE AS IF MANKIND AS A WHOLE WERE A PRISONER IN THE DEATH CELL AWAITING THE UNCERTAIN MOMENT Of; EXECUTION. AND LIKE EVERY INNOCENT DEFENDANT, WE REFUSE TO BELIEVE THAT THE EXECUTION WILL EVER TAKE PLACE.

WE FIND OURSELVES IN THIS SITUATION BECAUSE THE NUCLEAR WEAPON STATES HAYE APPLIED TRADITIONAL DOCTRINES OF WAR IN A WORLD WHERE NEW WEAPON HAVE MADE THEM OBSOLETE. WHAT IS THE POINT OF NHCITAR ’ ’SUPERIORITY' ' OR ’’BALANCE ’ ' WHEN IACH SIDE Al READY HAS ENOUGH WEAPONS TO DEVASTATE THE EARTH DOZENS OF TIMES OVER ? if' THE OLD DOCTRINES ARE APPLIED IN THE FUTURE, I HE HOLOCAUST HIM BE INESCAPABLE SOONER OR LATER. BUT NUCLEAR WAR CAN BE PREVENTED IF OUR VOICES ARE JOINED IN A UNIVERSAL DEMAND IN DEFENCE CE OUR.RIGHT TO LIVE.

AS A RESULT OF RECENT ATMOSH PE RIC AND BJOIDGICA! STUDIES. THERE HAVE BEEN NEW FINDINGS WHICH INDICATE THAI IN ADD I U ON 10 BIAS!, HEAT AND RADIATION, NUCLEAR WAR, EVEN ON A LIMITED SCALE, WOOED TRIGGER AN ARCTIC NUCLEAR WINTER WHICH MAY TRANSFORM THE EARTH INi0 a DARKENED, FROZEN PLANET POSING UNPRECEDENTED PERIL TO ALL NATIONS, EVEN THOSE FAR REMOVED FROM THE NUCLEAR EXPLOSIONS. WE ARE CONVINCED THAT THIS MAKES IT STILL MORE PRESSING TO TAKE PREVENTIVE ACTION TO EXCLUDE FOREVER THE USE OF NUCLEAR WEAPONS AND THE OCCURRENCE OF A NUCLEAR WAR.

A7IN OUR JOINT STATEMENT OF MAY ??, 19 8'* Wl CALK P UPON ,'HE NUCLEAR

WEAPON STATES TO BRING THEIR ARMS RACE 10 A 1IAI 1 , WE A Ri I NO (1(1 R Af.f 0 BY THE WORLD-WIDE RESPONSE 10 OUR APPLAI. llll ! N i I R N A 1 I 0 N A l SUPPORT WE RECEIVED, AND 1 HE RESPONSIS 01 Till NUO! I A R W: AEON', STATE S THEMSELVES, HAVE BEEN SUCH THAT WE DEI Ml D IT (HJR MUY Ml Mill IlfR! IN NEW DELHI TO CONSIDER WAYS TO FURTHER OUR IT! MUM

THE NUCLEAR WEAPON STATES HAVE A PARK CUER Pi MONM i U 1 i V I UE 1WL DANGEROUS STATE OF THE ARMS RACE. WE URGI IT: ‘-1 r U : r. 111, IN I!; 0 SEARCH FOR A NEW DIRECTION. WE WELCOME T IN- Af.PK K-. Ni IN M Nl VA ON JANUARY Q, 1985, BETWEEN THE SOVIET UNION AND , ,1- ONI il D SI AIL:, T 0 START BILATERAL NECOTITIONS ON ’’A COMPLEX 01 QUi ST IONS CONCERNING SPACE AND NUCLEAR ARMS -BOTH STRATEGIC AND 1 Hi LKML i)I A SI. RANGE ~ WI1H ALL THE QUESTIONS CONSIDERED AND RESOLVED IN THEIRINTER-RELATIONSHIP’’. WE ATTACH GREAT IMPORTANCE TO Me PROCLAIMED OBJECTIVE OF THESE NEGOTIATIONS : TO PRIVINI AN A. R MS RYU IN SPACf AND TO TERMINATE IT ON EARTH , ULTIMATE! Y 10 P. IMINAH N11 C K A k ARMS EVERYWHERE. WE EXPECT THE TWO MAJOR NUCLEAR WEAPON POWERS TO IMPLEMENT, IN GOOD FAITH, THEIR UNDERTAKING AND THL1R NEGOTIATIONS TO PRODUCE, AT AN EARLY DATE, SIGNIFICANi RESIJI TS. WE WII L FOt I »W THEIR WORK CLOSELY AND WE EXPECT THAT THEY Will KLIP Tie INTERNATIONAL COMMUNITY INFORMED OF [IS PRilOEi'O. Wi MR! U I HAT THE AGENDA FOR AND THE OUTCOME OF THESE NEGOTIATIONS IS A MAKER OF CONCERN FOR ALL NATIONS AND ALL PEOPLE.

WE RETITERATE OUR APPEAL FOR AN ALL-fc MBR AC IN o CAM ;,j MU TESTING, PRODUCTION AND DEPLOYMENT OF NUCLEAR WEAPON1'- AND THEIR DELIVERY SYSTEMS. SUCH A HALT WOULD GREATLY 'ACT'; i I AM NT s 0 ! I AMONG.TWO SPECIFIC STEPS TODAY REQUIRE SPECIA! ATI! NT! ON : ! La PKi'V! Ni IONOF AN ARMS RACE IN OUTER SPACE, AND A CUMPRf HENSIVL 1! M BAN TREATY.

OUTER SPACE MUST BE USED FOR THE BENEFIT OF MANKIND AN A WHOLE ,NOT AS A BATTLE GROUND Of THE FUTURE. Wl THP-! P:*.-: ram I O'. 1 CL PROHIBITION OF THE DEVELOPMENT, TESTING. PRO DOC• T ON , SL PlOYMENI AND USE OF ALL SPACE WEAPONS. AN ARMS RACE IN SPAT I LM 0 P.f I NOR MOD SLY COSTLY, AND HAVE GRAVE DESTABILISING Eil TMS. 1 : NON; c ALSO ENHANCER A NUMBER OF ARMS LIMITATION AND DISARMAMENT AGRP M. Ni<.

Wt > U R T! i E R URGE THE NUCLEAR W-:APCN IMAMU v-, ;,;Y., ALT Tht TESTING OP ALL KINDS OF NUCLLAR LD - ;"Y AM M 10 ML! U D:~ .AT AN EARLY DATE, A TREAT"-' ON A NUCLEAR PAPON -YU MU M-Y A TREATY WOULD BE A MAJOR OH p TOWARDS ENDING Up YMiit.OOY MODERNISATION OF NUCLEAR ARSENALS.

WE ARE CONVINCED THAT ALL SUCH STEPS, * S’ SC , A R M- UOiSSARY. CAN BE ACCOMPANIED BY ADEQUATE AND NON- 01 0 (U : v. [ A~ Y. AO ; MUT M' VERIFICATION.

A HALT TO THE NUCLEAR ARMS RACE IL, A! 1 i,i. 0, O' MUMPM IMPERATIVE. ONLY THUS CAN IT F,E LNOUK'MD !H/U r ' - M : T '■ -UNALS 0 0 NlK GROW WHILE NEGOTIATIONS PROCEED. HOW! V! •: . T'c i " HA, i u -'USD N01 :U AN END IN ITSELF. IT MUST BE IMMEDIATELY iOUMWEa M' MUS . ANl I,\L REDUCTIONS IN NUCLEAR FORCES, LEADING TO T H • C'"'-"UU: MM I N A ! i l.i N TONUCLEAR WEAPONS AND THE FINAL GOAL OF GENERAL UP ■ ' YLM DISARMAMENT. PARALLEL TO THIS PROCESS I I T >.UOU..P: M U SCAM' TP TRANSFER PRECIOUS RESOUCES CURRENTLY WASH ■> IN M:U AM-' P O NiiOMI TO SOCIAL AND ECONOMIC DEVEIOPMEN f. THE SUMV PMN-PW, L, THE UNITED NATIONS MUST ALSO BE AN ESSENTIAL PART OF- TUI', L.NDLAVDL-0


A8

IT IS IMPERATIVE TO FIND A REMEDY TO THE EXIST’NG SITUATION WHERE HUNDREDS OF BILLIONS OF DOLLARS, AMOUNTING TO APPROXIMATED ONE AND A HALF MILLION PER MINUTE, ARE SPENT ANNUALLY ON WEAPONS. THIS STANDS IN DRAMATIC CONTRAST TO THE POVERTY, AND IS SOME CASTS MISERY, IN WHICH TWO-THIRDS OF THE WORLD POPULATION LIVES

THE FUTURE OF ALL PEOPLES IS AT STAKE. AS REPRESENTATIVES FROM NON-NUCLEAR WEAPON STATES, WE WILL NOT CEASE TO EXPRESS OUR LEGITIMATE CONCERN AND MAKE KNOWN OUR DEMANDS. WE AFFIRM OUR DETERMINATION TO FACILITATE AGREEMENT AMONG THE NUCLEAR WEAPON STATES, SO THAT THE REQUIRED STEPS CAN BE TAKEN. WE WILL SEEK TO WORK TOGETHER WITH THEM FOR THE COMMON SECURITY OF MANKIND AND FOR PEACE.

WE URGE PEOPLE, PARLIAMENTS AND GOVERNMENTS THE WORLD OVER TO LEND FORCEFUL SUPPORT TO THIS APPEAL. PROGRESS IN DISARMAMENT CAN ONLY BE ACHIEVED WITH AN INFORMED PUBLIC APPLYING STRONG PRESSURE ON GOVERNMENTS. ONLY THEN WILL GOVERNMENTS SUMMON THE NECESSARY POLITICAL WILL TO OVERCOME THE MANY OBSTACLES WHICH LIE IN THE PATH OF PEACE. THE WORLD DISARMAMENT CAMPAIGN LAUNCHED BY THE UNITED NATIONS REPRESENTS A VERY IMPORTANT ELEMENT IN GENERATING THAT POLITICAL WILL.

FOR CENTURIES, MEN AND WOMEN HAVE FOUGHT FOR THEIR RIGHTS AND FREEDOMS. WE NOW FACE THE GREATEST STRUGGLE OF ALL -- FOR THE RIGHT TO LIVE, FOR OURSELVES AND FOR FUTURE GENERATIONS.

FORTY YEARS AGO, IN HIROSHIMA AND SAN FRANCISCO, THE HORROR OF NUCLEAR WAR WAS MATCHED BY THE HOPE FOR PEACE. WE WOULD LIKE THIS YEAR OF 1985 TO BE THE YEAR WHEN HOPE BEGINS TO PREVAIL OVER TERROR.WE DARE TO HOPE THAT BY OCTOBER 2A, 1985 THE FORETIETH ANNIVERSARY OF THE UNITED NATIONS, WE MIGHT SEE THE FIRST CONCRETE STEPS 10 AVERT THE THREAT TO THE SURVIAL OF HUMANITY.

INTERNATIONAL PROGRESS ORGANISATION

"Brussels Tribunal"on US Foreign Policy*

The Internationa! Conference on the Reagan Administration’s Foreign Policy convened In Brussels from-28-30 September, 1984 under the auspices of the Internationa! Progress Organization. Reports were submitted by international jurists and foreign policy specialists on various aspects of the Reagan Administration's foreign policy. Among the participants of the conference were Se6n MacBrlde (Nobel Laureate. Ireland), Prof. George Wald (Nobel Laureate, Harvard University), General Edgardo Mercado Jarrin (Peru), General Nino Pastl (former Deputy Supreme Commander of NATO) and Hortensia Bussi de Allende (Chile). The reports were presented before a Panel of Jurists consisting of Hon. Farouk Abu-Eissa (Sudan) Attorney, former Foreign Minister, Secretary- General of the Ar^b Lawyers Union; Prof.Fran- cis A. Boyle (U.S.A.), Professor <5f International Law from the University of Illinois, Chairman; Dr. Hans Goeran Franck (Sweden), Attorney, Member of the Swedish Parliament; Hon. Mlrza Gholam Hafiz (Bangladesh), Former Speaker of the Bangladesh Parliament and currently a Senior Advocate of the Bangladesh Supreme Court; Hon. Mary M. Kaufman (U.S.A.), Attorney-at-Law, prosecuting attorney at the Nuremberg War Crimes trial against I. G, Farben; Dr. Jean-Claude Njem (Cameroun), Assistant- Professor at the Faculty of Law, Uppsala University, and a Consultant of the Government; Prof. Alberto Rulz-Eldredge (Peru), Professor of Law, former President of the National Council of Justice; and Dr. Muemtaz Soysal (Turkey), Professor of Constitutional Law, University of Ankara. An accusation against the Internationa! legality of the Reagan Administration’s foreign policy was delivered by the Honorable Ramsey Clark, former U.S. Attorney General. The defense was presented by a legal expert of the Reagan Administration.

Based upon all the reports and documents submitted and the arguments by the advocates, the Brussels Panel of Jurists hereby renders the following conclusions concerning the compatibility of the Reagan Administration’s foreign policy with the requirements of International law.

A. Introduction1. General Introduction. The Reagan Administration's foreign policy constitutes a gross violation of the fundamental principles of international law enshrined in the Charter of the United Nations Organization, as well as of the basic rules of customary international law set forth in the U.N. General Assembly's Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty (1965), Its Declaration on Principles of International- Law Concerning Friendly Relations and Cooperation Among States In Accordance with the Charter of the United Nations (1970), and Its Definition of Aggression (1974), among others. In addition, the Reagan Administration Is responsible for complicity In the commission of Crimes Against Peace, Crimes Against Humanity, War Crimes and Grave Breaches of the Third and Fourth Geneva Conventions of 1949.

B. Western Hemisphere2. Grenada. The Reagan Administration’s 1983 invasion of Grenada was a clearcut violation of U.N. Charter articles 2 (3), 2 (4), and 33 as well, as of articles 18, 20 and 21 of the Revised OAS Charter for which there was no valid excuse or justification under International law. As such, it constituted an act of aggression within the meaning of article 39 of the United Nations Charter.

3. Threat of U.S. Intervention. In direct violation of the basic requirement of International law mandating the peaceful settlement of International disputes, the Reagan Administration has Implemented a foreign policy towards Central America that constitutes a great danger of escalation in military hostilities to the point of precipitating armed intervention by U.S. troops into combat against both the insurgents In El Salvador and the legitimate government of Nicaragua.

4. El Salvador. The Reagan Administration’s Illegal Intervention Into El Salvador's civil war contravenes the International legal right of selfdetermination of peoples as recognized by article 1 (2) of the United Nations Charter. The Reagan Administration has provided enormous amounts of military assistance to an oppressive regime that has used It to perpetrate a gross

and consistent pattern of violations of the most fundamental human rights of the people of El Salvador.

5. Nicaragua. The Reagan Administration’s policy of organizing and participating in military operations by opposition contra groups for the purpose of overthrowing the legitimate government of Nicaragua violates the terms of both the U.N. and O.A.S. Charters prohibiting the threat or use of force against the political Independence of a state. The Reagan Administration has flouted Its obligation to terminate Immedately its support for the opposition contra groups in accordance with the Interim Order of Protection Issued by the International Court of Justice on 10 May 1984.

6. International Court of Justice. The Panel denounces the patently bogu9 attempt by the Reagan Administration to withdraw from the compulsory jurisdiction of the International Court of Justice in the suit brought against it by Nicaragua for the purpose of avoiding a peaceful settlement of this dispute by the World Court In order to pursue instead a policy based upon military intervention, lawless violence and destabilization of the legitimate government of Nicaragua.

7. Mining Nicaraguan Harbors. The Reagan Administration’s mining of Nicaraguan harbors violates the rules of international law set f<jrth in the 1907 Hague Convention on the Laying of Submarine Mines, to which both Nicaragua and the United States are parties.

*(This document dated 30 September 1984 was released by the International Progress Organisation A-1150 Vienna, Austria, Reindorfgasse 5. A copy was made available to Australian International Law News by Professor Francis A. Boyle of the University of Illinois College of Law.)


C. Nuclear Weapons Policies8. Arms Control Treaties. The Reagan Administration has refused to support the ratification of the Threshold Test Ban Treaty of 1974, the Peaceful Nuclear Explosions Treaty of 1976, and the SALT II Treaty of 1979, in addition to renouncing the longstanding objective of the U.S. government to negotiate a comprehensive test ban treaty. As such the Reagan Administration has failed to pursue negotiations In good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament as required by article 6 of the Nuclear Non-Proliferation

i Treaty of 1968. Similarly, the Reagan Admlnis- j tration's “Strategic Defense Initiative" of 1983

threatens to breach the Anti-Ballistic Missile j Systems Treaty of 1972.

9. Pershing 2 Missiles. The deployment of the offensive, first-strike, counterforc9 strategic nuclear weapons system known as the Pershing 2 missile in the Federal Republic of Germany violates the Non-Circumvention Clause found in article 12 of the SALT II Treaty. The Reagan Administration is bound to obe/ this

I prohibition pursuant to the rule of customary in' ternational law enunciated in article 18 of the

1969 Vienna Convention on the Law of Treaties to the effect that a signatory to a treaty is obliged to refrain from acts that would defeat the object and purpose of a treaty until it has made its Intention clear not to become a party.

10. The MX missile. The MX missile Is an offensive, first-strike, counterforce strategic nuclear weapons system that can serve no legitimate defensive purpose under U.N. Charter article 51 and the international laws of humanitarian armed conflict.

11. No-flrst-use. In accordance with U.N. General Assembly Resolution 1553 of 24 November 1961, the’ panel denounces the refusal by the Reagan Administration to adopt a policy mandating the no-first-use of nuclear weapons In the event of a conventional attack as required by the basic rule of International law dictating proportionality in the use of force even for the purposes of legitimate self-defense. *

12. ASAT Treaty. The Panel calls upon both th United States and the Soviet Union to negotiate unconditionally over the conclusion of an anti-satellite weapons treaty.

D. Middle East13. Lebanon. For the part it played in the planning, preparation and initiation of the 1982 la

! raell invasion of Lebanon, the Reagan Admlnls- | tratlon has committed a Crime against Peace

as defined by the Nuremberg Principles. Likewise, under the Nuremberg principles, the Reagan Administration becomes an accomplice to the Crimes against Humanity, War Crimes and Grave Breaches of the Third and Fourth Geneva Conventions of 1949 that have been committed or condoned by Israel and its allied Phalange and Haddad militia forces in Lebanon. Such complicity includes the savage massacre of aenocidal character of hundreds of Innocent Palestinian and Lebanese civilians by organized units of the Phalengist militia at the Sabra end Shatila refugee camps located In W st Beirut that were then subject to the control of the occupying Israeli army. The Reagan Administration has totally failed to discharge its Obligation to obtain Israel’s Immediate and unconditional withdrawal from all parts of Lebanon as required by U.N. Security Council Resolutions 508 and 509 (1982), both of which are legally binding on Israel and the United States und r U.N. Charter article 25. This includes Israeli evacuation of Southern Lebanon.

14. The Palestinian Question. The Reagan Administration's policy towards the Palestinian psople as well as the Reagan "Peace Plan" of 1 S ptember 1982 violates the International legal right of the Palestinian people to self- det rmination as recognized by U.N. Charter artlcl 1(2). As recognized by numerous Gen-

ral Assembly Resolutions, the Palestinian peopl hav an International legal right to cr at an Independent and sovereign state. Tr*e Palestine Liberation Organization has been recognized as the legitimate representative of the Palestinian people byjboth the United N&t'ens Gen ral Ass mbly and the League of

i Are.b States. The Reagan Administration’s non-i f svToqnftlon of the PLO and Its attempt to brand

the PLO a "terrorist" group contravene the Palestinian people's right to liberation. The panel denounces the negative attitude of the Reagan Administration towards the call by the United Nations' Secretary General for the convocation of an international conference under the auspices of the United Nations, with the United States and the Soviet Union as co-chairmen, and with the participation of all parties involved in the conflict including the PLO, for the purpose of obtaining a just and lasting peace In the Middle East.

15. Israeli Settlements. The Reagan Administration’s declared position that Israeli settlements in the Occupied Territories are "not Illegal" is a violation of U.S. obligations under article 1 of the Fourtn Geneva Convention of 1949 to ensure respect for the terms of the Convention (here article 49) by other High Contracting Parties such as Israel.

Libya. The Reagan Administration's dl9- p&tch of the U.S. Sixth Fleet Into the Gulf of Sidra for the purpose of precipitating armed conflict with the Libyan government constitutes a breach of the peace under article 39 of the U.N. Charter. The Reagan Administration's policy to attempt to destabilize the government of Libya violates the terms of the United Nations Charter article 2 (4) prohibiting the threat or use of force directed against the political Independence of a state.E. Africa, Asia and the Indian Ocean

17. Apartheid. The Panel denounces the Reagan Administration’s so-called policy of "constructive engagement" towards the apart- held regime In South Africa. This specious policy encourages discrimination and oppression against the majority of the people of South Africa; it hampers effective action by the international community against apartheid, and facilitates aggressive conduct by the South African apartheid regime against neighbour states in violation of the U.N. Charter. As such, the Reagan Administration has become an accomplice to the commission of the international crime of apartheid as recognized by the universally accepted International Convention onihe Suppression and Punishment of the Crime of Apartheid of 1973. The Panel also denounces the cooperation between the Reagan Administration and South Africa in military and nuclear matters.

18. Namibia. The Reagan Administration has’ refused to carry out its obligations under Security Council Resolution 435 (1978) providing for the independence of Namibia, as required by article 25 of the U.N. Charter. The right of the Namibian people to self-determination had been firmly established under International law long before the outbreak of the Angolan civil war. The Reagan Administration has no right to obstruct the achievement of Namibian Independence by conditioning it upon or "linking" It to the withdrawal of Cuban troops from Angola In any way. Both the U.N. General Assembly end the Organization of the African Unity have recognized SWAPO as the legitimate representative of the Namibian people and the Reagan Administration la obligated to negotiate with it as such.

19. Angola. Cuban troops are In Angola at; the request of the legitimate government of Angola In order to protect It from overt and covert aggression mounted by the South African apartheid regime from Namibia. There is absolutely no international legal Justification for South African aggression against Angola In order to maintain and consolidate Its reprehensible occupation of Namibia. The Angolan government has repeatedly stated that when South Africa leaves Namibia It will request the withdrawal of Cuban troops, and Cuba has agreed to withdraw Its troops whenever so requested by Angola. According to the relevant rules of International law, that Is the proper sequence of events to be followed. The Reagan Administration's ‘.'linkage'' of the presence of the Cuban troops In Angola with the Independence xA Namibia encourages South African aggression against Angola, and thus It must shar In th re ponslbillty for South Africa’s genocWal acts against the people of Angola.

20. Indian Oc an. Th Reagan Administration's continued military occupation of the Is

land of Diego Garcia violates the International legal right of self-determination for the peopl of Mauritius as recognized by the United Nations Charter. The Reagan Administration has accelerated the rapid militarization of the U.S. naval base on Diego Garcia as part of Its plan to create a jumping -off point for Intervention by the Rapid Deployment Force Into the Persian Gulf. As such the Reagan Administration’s foreign policy towards the Indian Ocean has violated the terms of the U.N. General Assembly’s Declaration of the Indian Ocean as a Zone of Peace (1971).

F. Conclusion21. United Nations Action. From the forego

ing, It is clear that the Reagan Administration has substituted force for the rule of international law In Its conduct of foreign policy around the world. It has thus created a serious threat to the maintenance of International peace and security under article 39 of the United Nations Charter that calls for the Imposition of enforcement measures by the U.N. Se- curlty Council under articles 41 and 42. In the event the Reagan Administration exercises its veto power against the adoption of such measures by the Security Council, the matter should be turned over to the U.N. General Assembly i for action In accordance with the procedures | set forth in the Uniting for Peace Resolution of 1950. In this way the Reagan Administration’s grievous International transgressions could be effectively opposed by all members of the world community In a manner consistent with the requirements of Internationa! law.

Both the Security Council and the General Assembly should also take into account the numerous Interventionist measures taken by the Reagan Administration, whether direct or Indirect, seeking to Impose financial and economic policies which are contrary to the sovereign Independence of states, specially^ In the developing world, which severely damage the quality of life for all peoples.

A NEW CODE ON PROTECTIONISM *

THE MULTILATERAL TRADING SYSTEM : A NEW CODE ON PROTECTIONISM


I attach the paper you commissioned fleshing out and examining the idea of proposing to the Americans that they take the lead in trying to restore credibility to the multilateral trading system. I have also arranged for copies to go to Mr. Anthony, Mr. Howard, Mr. Street and Mr. Peacock.

The paper suggests that the best way of putting the basic idea into practice would be for the US to launch a new Code on Protectionism. It notes that the successful launching of such a Code would be in Australia's long-term interests, although we would have to stand ready to make adjustments and our freedom to take short-term protective action could be constrained. The paper also emphasises domestic and international political obstacles the US Administration can be expected to see with the proposal, and a good deal of space is devoted to developing the context in which it might be presented so as to increase its attractiveness.

Although some judgements are involved along the way, the paper provides a pretty fair case for at least opening the matter up with the US Administration. Mr. Street's impending talks with Shultz provide an opportunity for testing the water in a general way before making a final decision one way or the other. There would also need to be further development of some details before you could formally put it to President Reagan.

G. J. Yeend, Secretary

*(This is a text of a letter dated 5 January 1983 and enclosure fron Mr. G.J. Yeend, Secretary of the Department of the Prime Minister and Cabinet to the then Prime Minister of Australia, the Right Honourable Malcolm Fraser, C.H., on a proposal for a new Code on Protectionism. Shortly after the preparation of the enclosure, there was a change of government in Australia. Its existence was made public in 1984, and this copy was made available by Mr. Malcolm Fraser)


THE MULTI-LATERAL TRADING SYSTEM : A NEW CODE ON PROTECTIONISM

INTRODUCTION AND SUMMARY

This paper canvasses the possibility of proposing to the United States that it take new and specific steps to reverse the present global trend to protectionism and to restore the basic principles of the multilateral trading system.

1. The basic proposal is that the US declare its preparedness with, and only with, other countries similarly disposed and on a basis of reciprocity:

(i) not to increase protection; and, in a manner to be agreed

(ii) to reduce protection

and its intention to establish and notify to the GATT a new "Code on Protectionism" open to all countries, whether members of the GATT or not.2 It is considered that in advancing the proposal we could present it as:. consistent with Australia's traditional multilateral

approach to trade policy issues;. the sort of bold and timely action necessary to prevent

a further dangerous drift to protectionism;

. if pursued resolutely by the US, likely to attract wide multilateral support, including, although almost certainly not initially, the EC and other European countries; and

. if successful in its ultimate objective, in Australia's long run interests despite the shorter-term domestic adjustments that might be involved.

3. It has to be emphasised, however, that the success of such a proposal depends entirely on the willingness of the US Administration to depart significantly from its established approach to trade issues with Europe. It has to be recognised also that, because of the greater shorter-term domestic and international political risks the Administration will almost certainly see in the approach proposed in this paper, it will not be easily shifted from its present course. Much of this paper, therefore, canvasses the broad nature of those risks and the context in which the proposal might be presented soas td increase its attractiveness to the US.

BACKGROUND

4. The Australian initiative for a standstill and windback of all protectionist measures presented to the recent GATT Ministerial was an attempt to prevent protectionism spreading and further exacerbating inflationary pressures arid the global recession.

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 574_____ '

Although those consequences of increased protectionism were widely acknowledged at the GATT meeting, the declaration to emerge from the meeting was weak and will be little brake to countries wishing to interpret it in their own interests.

5 The European Communities in particular frustrated efforts to obtain firm commitments to halt and reverse the trend to protectionism. The Communities again proved particularly difficult to negotiate with as a group, and were basically content to stalemate negotiations and keep their options open. Thus, unless there were to be a radical and completely unexpected change in the EC attitude, the prospects for progress in any subsequent formal GATT framework seem remote.

6. What is needed, therefore, is a proposal able to surmount the difficulties of the GATT negotiating framework and the intransigence of the EC and other West Europeans. It should aim for initial wide multilateral participation, while acknowledging that, at first, Western Europe will probably not participate. The outcome sought, however, should be of such a nature and have such an impact as ultimately to compel the Western Europeans to take part.

7. The country with the necessary combination of economic weight, position of strength in the free world and commitment to the principles of free trade which might successfully be able to initiate such action is the United States. It is thus ideally placed to take a lead.

FEATURES OF THE PROPOSAL

6 A new Code on Protectionism should aim ultimately to be comprehensive, applying to the full range of trade distorting measures (as did the earlier Australian initiative). Practical considerations alone, however would require its implementation in stages. The initial Code should apply only to measures inconsistent with GATT obligations or falling outside theGATT framework - the so called "illegal" measures, which account for the bulk of increased protectionism. It could be extended to other forms of protection as Code signatories gained confidence in the benefits of further actions.

9. The GATT Ministerial experience suggests that measures to arrest protectionist trends are unlikely to be successfully negotiated in any large multilateral forum. It is proposed, therefore, that the US, perhaps in consultation with a handful of sympathetic countries, draw up the new Code and, as in the case of many of the MTN Codes, open it to participation from interested countries on a take it or leave it basis. The "standstill" component would be implemented immediately. The subsequent "windback" would probably require some negotation as to timing, phasing and so on.

10. The proposal would not leave the US open to charges of attempting to by-pass the GATT. It could be presented as merely adding to the aggregration of Codes emerging from theMTN. Its purpose would be to strengthen commitment to GATT rules


Strictly speaking, a new Code would (as do some MTN Codes) involve departures from the basic MFN principle in Article 1 of GATT. This has been justified in the case of MTN Codes on the basis of their benefits being available to all who accept their obligations. A similarly constructed Code on Protectionism could therefore be fully defended on the basis of precedents established.11. Barriers to trade in agricultural products would be included along with barriers to trade in other products. Agriculture is more complicated to embody in a standstill and windback since conventional means of protection, even quotas, are less relevant. The intention in various agriculture measures is first to protect the domestic market and then to subsidise otherwise uncompetitive surpluses into third markets Thus, there needs to be a halt on both domestic protection and subsidies. This, however, might be too ambitious for a start. The most that might be feasible is a standstill (and windback later) in subsidy levels and in farm price supports. (This would have the dual effect of making subsidised exports gradually less competitive and would gradually discourage high cost production which is the source of the problem).12. Perhaps what needs to be emphasised above all is that the success and worth of the proposal depends very heavily onUS willingness to embrace and resolutely pursue it on a take it or leave it basis. If the Americans were attracted, it would have to become for all practical pruposes a US initiative Her natural instinct may be to consult major trading partners - Japan and the EC - but if that led to negotiations and opportunities to emasculate the proposal it would not have been worth pursuing.

AUSTRALIA'S INTERESTS13. Any action that led to the restoration of the basic principles of the multilateral trading system would be beneficial to Australia's long term interests. It is within a well functioning multilateral trading system that:

global and hence our own growth prospects will be most favourable;

. inflation and budget deficits around the world can be best contained;

. industries in all countries will better adjust to competitive pressures;

. we can best pursue our interests as a significant trading nation, including with the dynamic and rapidly growing countries in our region; andthe Western strategic alliance, of which we are part, will be strongest and most stable.

14 of course, participation in a new Code on Protectionism would require a willingness on our part first not to increase and, later, to reduce trade barriers in Australia.


4 -

Such obligations would be somewhat less at the outset, if the Code applied initially only to "illegal" measures, though, to be fair, our so-called tariff quotas (like other countries' VER's) probably fall within the compass of "illegal" measures. Against that there could also be a period when, as the initial proponent of the Code, we were one of only a handful of particpating countries and at a time when unemployment in Australia was at record levels. We would also have to be prepared for increased competition in third markets, including agricultural products,15. The sort of adjustments that we might be called upon to make cannot be anticipated but, as always, there would always be winners and losers. It also has to be noted that business - certainly representatives of some peak business Councils - have been relieved to see the Australian initiative fail at the GATT Ministerial, would be opposed to Australia advancing any similar proposal, and would presumably oppose our participating in any Code. Although we would, as already noted, gain overall in the long-run from a more open world trading system, the Code could also restrict our freedom in the near-term to extend temporary assistance.16. The extent to which Australia would stand to lose credibility by unsuccessfully promoting such a proposal with the US is a matter of judgement. It could be argued that our international reputation would suffer little by raising a well prepared and argued proposal to reverse the drift to protectionism, particularly when attempts to do so through more conventional channels (the GATT) have proved such a failure. Mr. Street's discussion with Secretary of State Shultz could also provide an opportunity for testing the water in a general way before finally committing ourselves. On the other hand, the Europeans in particular would represent the proposal as yet another exampleof an unrealistically "purist" approach.17. There is also the question of the implications of advancing such a proposal for our overall political relations with Western Europe. It would have to be emphasised that we were not in the business of promoting increased trans-Atlantic tensions, but given our recent differences with the Europeans in the trade field it would be difficult to persuade some of them initially that the proposal was not aimed at embarrassing and isolating them In the end, of course, the real test would be whether they could ultimately be persuaded to participate.

US REACTION

18. The key question is the likely US reaction to the proposal The US could, in-principle, be expected to be sympathetic toa proposal that sought to re-invigorate the multilateral trading system, would readily acknowledge the potential benefits to world trade and growth, dealing with inflation and budget deficits, the benefits to developing countries and so on. In practical terms, however, its reaction to the proposal is likely to be conditioned by three things:


- 5 -

. the domestic US economic and political consequences;

. the chances of success - ie. winning wide multilateral support; and

. possible strategic implications, particularly with European NATO partners.

Domestic Considerations

19. Domestic political difficulties for the US Administration in pursuing such a proposal should not be under-estimated.This would be especially so if the EC were not part of the Code, though making it clear the EC would not get a free ride would help. The Administration is nevertheless under substantial farmer, industry and Congressional pressure to take additional protectionist measures. Given the President's dependence on the co-operation of Congress (in which the Democrats have the majority in the House of Representatives) he could be expected to give great weight to possible wider implications for his relations with Congress.

Possible Participants20. Possible participation is difficult to predict with any confidence and in any event would be importantly conditioned by how resolutely the US was prepared to pursue the idea in the face of inevitable opposition. However, if, and only if, determinedly pursued by the US the overall outcome might, in time, be along the following lines:

. The EC and EFTA countries would almost certainly not agree to participate initially, particularly if agriculture were included. Widespread participation by other major trading countires, however, would put significant economic and political pressure on those countries subsequently to participate.

. Canada would probably have no option but to participate (around two thirds of its trade is with the US).

. Japan would quickly realise that many existing and potential protectionist measures are directed against it, although it would have to weigh that against the difficulties of reducing its own non-tariff and agricultural protection. It would not relish "having to take sides" in a US/EC divergence of view. But, with 25% of Japanese exports going to the US, its incentive to participate would be substantial.

ASEAN countries would be similarly uncomfortable with a US/EC divergence, but if Japan participated their trade links with Japan and the US (together accounting for over 50 per cent of extra-ASEAN exports) would make participation very hard to resist

[1985] AUSTRALIAN INTERNATIONAL LAM MENS 378

. US, Japanese, ASEAN, Canadian, Australian and New Zealand participation, would encourage further developing country participation especially among those interested in trade eg. Korea, Sri Lanka and some Latins. Some Convention countries (African and Caribbean) would be reluctant in the absence of EC participation. It is unlikely that Brazil and Argentina would easily be persuaded to join but given the parlous state of their economies they ultimately would probably come in. India, too would be a reluctant but probable participant.

Earlier Commonwealth Heads of Government Meetings suggest widespread participation by Commonwealth countries.

Strategic Considerations

21. Maintaining Western strength and cohesion for strategic reasons will bear heavily on US thinking. It will not easily embrace a proposal putting such pressure on the EC in the trade area, which it may well regard as increasing tensions within the Western Alliance.

22. New Secretary of State, Shultz, has also put a lot of personal effort into mending fences (eg. the pipeline embargo) with the Europeans, including trying to repair the non-achievements of the GATT Ministerial. For those reasons Shultz in particular may prefer to build on what common ground the US can identify with the Europeans, rather than strike out in new directions.The question then is whether he and other senior members of the Administration could be persuaded that, while the bilateral approach to Europe is appropriate and effective in many areas, the time has come for a fresh approach to protectionism.

23. in summary, the US Administration will see the proposal as involving a departure from its established approach to Europe on trade issues, perhaps involving international and domestic political risks. Our task, therefore, would beto persuade the US to the contrary, and to convince it that our proposal offers more hope of reducing its underlying trade and strategic tensions with its European trading partners than the "fence-mending" course on which it has already embarked.

PRESENTATION TO THE US

24. As regards strategic questions, the proposal could be presented to the US along the following broad lines:

. The multilateral trading system served the world well for the first two and a half decades after World War II.It is now seriously threatened;

The last decade has seen a steady drift to protectionist measures, which has accelerated disconcertingly in the last few years;

The recent GATT Ministerial has done little or nothing to arrest that trend - nor will the EC/US bilateral talks get at the fundamental problems; V

»■ .• ----------- ■ "«'« rf.1—.——— ■.............■■■I,—

{ 1985] AUSTRALIAN INTERNATIONAL LAM MENS ■ :■ 379

. If the drift to protectionism is allowed to go on therisk of the world drifting into a 1930's style "trade-war" and depression will rise correspondingly. Not only does protectionism impede growth and trade flows, it also impacts adversely on the capacity of heavily indebted developing countries to service debts by exporting and this threatens the payments system as well. Hence the possibility of a drift to the 1930's;What is needed, and is proposed, is an initiative capable of surmounting the difficulties of the GATT negotiating framework,- one that offers the EC full rights of participation

and seeks their participation sooner rather than later.

. The US is the only country capable of successfully taking the lead.

. If the US does not take the lead because of its concern that European reactions may go beyond purely trade issues then, in effect, Europe will be allowed to continue imposing its inward looking and protectionist view of organising the trading system on the rest of the Western world, a view which is philosophically alien to many and economically damaging to all,_ other words it will be allowed to usurp^ the

US's traditional leadership role and to take the West in the direction of a breakdown of the trade and payments system, with all the implications that could have in the moderately longer term for the strength of the Western alliance.

. Australia recognises that the proposal, if it were tolead to the short-term isolation of the EC in the trading system, may temporarily strain relations between Europe and North America but so would a "trade-war" which may follow doing nothing.

. If the US pursues the proposal resolutely, however, other major trading powers eg. Japan, ASEAN, Canada, Australia and many developing countries will support it, thus leaving the Europeans either to follow suit or be the "odd men out". In those circumstances the pressures on it to participate would include:- growing political discomfort in standing apart from

a worthwhile and widely supported multilateral agreement,

- the growing cost to many of its industries not benefitting from reductions in trade barriers between Code signatories,

- the weight added to anti-protectionist forces within EC countries, and

[1985 J AUSTRALIAN INTERNATIONAL LAN MENS 380

- the different attitudes to the proposal that would exist between more (eg France) and less (eg FRG) protectionist countries within the EC.

. Present bilateral efforts to defuse tensions within the alliance are understandable and necessary, but when Europe steadfastly refuses to move on trade issues in any negotiating context then there is no real alternative to this sort of multilateral pressure if an already fast deteriorating situation is not to get worse.In other words, continued compromise and accommodation to European protectionist leanings on strategic grounds may well involve significantly greater long term risks to the strength and cohesion of the Western alliance.

- protectionism undermines the strength of the Western ]economic system, its capacity and resolution to maintainan adequate defence capability and its very philosophical jbase, j

- continued erosion of multilateral trading rules, increasing resort to "beggar-thy-neighbour" policies and continued lack of prosperity will creat tensions and instabilities, reaching beyond Europe into such areas as the ASEAN/Pacific, which could only be to the political and strategic advantage of the enemies of the West.

. Nor does international stability depend solely on thecohesion of Western-aligned States. Continued inaction jagainst protectionism will frustrate the integration of !developing countries into the world economy, and may well |force ASEAN and Pacific countries to be increasingly Jinward looking.* |

. In summary, Australia believes that a firm display of US Ileadership to bring the trading system back on course ’offers longer-run benefits for the world economy, the jWestern alliance and international stability far outweighing Iany shorter-run tensions that might arise. j

25 As regards US domestic political problems, the followingsorts of points may help the President present the proposalincluding to the Congress, in a positive light:

. as just noted, there would be wider economic, strategic and political benefits to the US if it could successfully launch the proposal;

. market opportunities would be opened up for US producers, both directly and as a result of the general boost to world trade and growth;domestic.../

As an aside in this context, US co-operation with the region would be enhanced by giving greater support to the development of commodity agreements such as tin and rubber upon which considerable store is set


- 9 -

. domestic hostility to the proposal may be allayed to the extent that while the Europeans do not participate they cannot receive the benefits;

. a multilateral Code on Protectionism may prove a practical and positive counter to domestic pressures for more protection - which would presumably have its own political consequences among ani-protectionist lobbies;

. if those domestic pressures can be headed off the possibility of any trade war is clearly dimished

- if they cannot, and the EC holds to its present views, will the trade disputes that will increasingly flare up with the EC (perhaps even a trade war) not cause their own domestic political problems?

FORM OF APPROACH

26. Given that a bold and significant change in direction is being suggested, the President would rely heavily on the advice of advisers such as Shultz and Brock. If it were decided to proceed with the proposal, it would be important that it be put to the President personally by the Prime Minister as soon as possible. This would help ensure that the benefits to the world trading system, to the Western alliance and to US leadership and standing in the world were given appropriate emphasis from the outset.

27. As already pointed out, the support of Shultz and Brock would also be crucial and they would need to be appropriately and personally briefed before the Prime Minister saw the President, or he would be in no position to react. It seems desirable, therefore, that during his visit to the US,11-14 January, Mr. Street begin to open up the question with Shultz in a general way, canvassing in particular some of the points in paragraph 25 above. A decision would also be required as to how the personal briefing of Brock was to be conducted.

THE WILLIAMSBURG SUMMIT28. The potential role seen for the proposal at the Summit in June needs careful consideration. It almost certainly would not be helpful, for example, for the proposal to be taken to the Summit by the US for discussion/negotation with European Summit participants. The Europeans would presumable reject the idea and it would then be more difficult to proceed with it. It may be more productive if the US were encouraged either:

. to launch the new code roultilaterally in advance of the Summit; or, preferably

. launch it immediately following the Summit if European participants again resist meaningful commitments on protectionism which could be floated by the US there


- 10 -

THE HOBART CONFERENCE (25-28 MARCH)

29. Once the proposals were put to the US it would be difficult to prevent it becoming known publicly. The question then arises how could this be handled in relation to the Hobart trade meeting. If the US accepted the idea it could be explained as part of the further background to a discussion of how this region might relate to a wider world. If a significant part of the wider world was likely to become less protectionist then it might want to relate in a particular way. If however, the US could not take thelead suggested then it is more likely that the world will be moving in a more protectionist direction. This presumably would elicit a different response from the regional group meeting in Hobart.

30. In any event, some appropriately timed contact in Western Pacific capitals may be necessary to avoid giving rise to perceptions that it was cutting across the Hobart concept, was motivated by any purely bilateral considerations with the US, or was not consistent with our support forthe multilateral trading system.

5 January 1983


GATT - US RULES OF ORIGIN*

At the Council’s meeting on 2 October, textile-exporting developing countries drew attention to measures taken by the United States in this sector. On 4 and 5 September' these countries had already expressed before the Textiles Committee their concern about the serious repercussions that the measures could have on their exports.Speaking on behalf of the textile-exporting developing countries, the representative of Pakistan said that the Council had an important role to play in overseeing commitments in regard to protectionism and increased trade liberalization, inter alia in the textile area, as well as strict observance of the rules of the Multi-Fibre Arrangement, in accordance with undertakings given at the Ministerial session of November 1982.In the view of the representative of Pakistan, neither the regulations defining new' rules of origin applicable to textile imports into the US, nor the countervailing investigations opened against thirteen developing countries take account of the objectives of the Ministerial declaration on the MFA. He underlined that recourse to restrictions additional to those already provided by the MFA was strictly limited by Article 9 of that instrument. The new' rules of origin alone could aflect trade representing $3 billion.Several developed countries, in particular the European Community and Japan, shared the concern of developing countries regarding the new United States rules of origin, the complexity of which could give rise to problems of interpretation and have a protectionist impact. The EEC asked the US to withdraw the new rules, and expressed the view that, with respect to countervailing duties, the essential issue

lay in the United States’ acceptance of the criterion of injury to countries not parties to the Code on Subsidies and Countervailing Duties.The United States representative recalled that his country’s regulations on rules of origin had been amended; their implementation had been postponed; concerning the countervailing duty petitions, the time-limit for presenting preliminary determinations has been extended. Nevertheless, he stressed that United States textile imports were continuing to rise.At the request of Finland, the Council decided to establish a panel to examine the anti-dumping duty imposed by the

New Zealand authorities on imports of electrical transformers from Finland. since bilateral consultations on the matter had failed to yield a satisfactory result.The Council adopted the report of the working party on the Australia/New Zealand closer economic relations trade agreement; in line with usual practice regarding regional arrangements, the parties to this agreement are to report to the Council every two years on its implementation.The Chairman of the Council announced that informal consultations are continuing on trade in counterfeit products.

*(This is the text of an item that appeared in the GATT Newsletter Focus September/October 1984.


INTERNATIONAL BANKING - MONETARY AUTHORITY OF SINGAPORE AND JARDINE FLEMING (SINGAPORE) PTE LTD*

On 4 Oct 84, the Monetary Authority of Singapore ("th Authority”) withdrew Its approval for JFS to operate as a Merchant hank In Singapore* This decision waa taken following a review of JFS*s operations In Singapore and after careful consideration of the explanations given by JFS.

Breach of Section 133_of_the_Companles Act and Inadequacyjof^lnter"*! |Controls j2. In late 1981 and early 1982, the Authority conducted an :Inspection on JFS* Besides weaknesses In the credit adnlnlstratlon

j

and Internal control procedures, JFS was found to have grant d !substantial clean credit facilities to Its then Managing Director In !contravention of Section 133 of the Caupanlea Act* These serious 1breaches would have warranted the withdrawal of the approval for JFS to operate as a Merchant hank. However, In view of JFS's assurance to !

j,

improve its internal controls, no legal action was Instituted against fIt, except the withdrawal of Ita Asian Currency Unit (ACU) permit. ^

Inadequate Advice to the Minority Shareholders of Singapore Land (SLL)1° 1981, SLL proposed to acquire 5 cargo vessels fron the ;

Ocean Shipping Group which was effectively controlled by SLL*a major !shareholders. The minority shareholders of SLL however protested jagainst the acquisition. Despite the depressed condition in the hipping Industry and the consequent doubt as to the vessels* loi« tern profitability, JFS, as an adviser to the minority shareholder , Ihad recomnended that the vessels, then aged 4-7 years, be bought at a total price of US$53 million compared to an original cost of US$52 ■million to the vendor. SLL later withdrew the transaction at the jinsistence of the Securities Industry Council. j

iI

4. The Authority has found little reason to believe that JFS had j

arrived at its recommendation after due and careful consideration of all pertinent factors. In particular, JFS had failed to take full account of the prevailing market conditions, future industry trend nd the potential earning capacity of the vessels, and to nsure that I

possible conflict of Interest of the controlling shareholders of SLL I* (This is the text of a Press Release dated 4 October 1984 made by the Monetary I

Authority of Singapore. The decision of the Authority was reported widely in the financial press)______________________________

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 385______________

and Ocean Shipping Group wa6 sufficiently mitigated JFS cont nded that "it Is normal practice in transactions of this type for the acquisition price to be based on present-day market value rather than some Indeterminate future value".

5. JFS also argued that Its obligation was to ensure compliancwith mandatory stock exchange requirements such as the provision of an Independent valuation, disclosure of interests of any Inter sted parties and disfranchisement of the latter's voting rights. Th Authority cannot agree that a minority adviser's role is confined to nsuring technical compliance with regulations. Nor can the Authority

accept that the adviser should seek refuge in valuation technicalities without satisfying itself that the acquisition price takes Into account the prevailing and prospective market conditions.

Poor Standard of Advice to Keppel Shipyard Ltd (Keppel)7. In May 1983, JFS was appointed to advise Kepptl on negotiations to acquire a 58Z stake In Straits Steamship Co Ltd (Straits). As adviser, JFS delivered 2 reports dated 28 Apr 83 and 4 Jun 83 to Keppel. These reports contained serious deficiencies.

8. In the April Report, JFS estimated Straits to be worth between $2.71-$2.94 per share. The estimate was inflated by some S$81 million (or 32 cents per share) because JFS omitted to exclude the minority interests in properties not 1001 owned by Straits. JFS disclaim d responsibility for this gross oversight on the ground that the April Report was an' Internal document prepared for its own use. The Authority considers it quite unacceptable professional behaviour that a merchant bank should deem It proper to furnish a client with documents that have not been properly researched. Even if the documents might be of some use to the client, the adviser Is expected to expressly point out to the client that the documents contain data that had not been fully investigated Into and could be erroneous.

9. The June Report also contained another gross error in that JFS'8 valuation of Straits' holdings in Bukit Timah Plaza at S$127 million was some 2001 higher than the property' book valu as at 31 Dec 82. It was also ome 200Z higher than a professional valuation of the ame property made in June 1983. JFS's valuation of Straits'

C1985] AUSTRALIAN INTERNATIONAL LAN NEWS 386

properties was thus Inflated by iom S$72 Million (or 29 cents per share). JFS admitted that its estivate was too high but again disclaimed responsibility on grounds that it was not a professional valuer and that at do time did it become financial adviser to Keppel - its role was confined to providing assistance to Keppel as and wh n r quested. The Authority finds these disclaimers difficult to accept; not only does it call into question JFS'a professional competence, but it also stretches credulity to believe that JFS was to be paid a f e of S$400,000 merely to assist Keppel in the collation of facts synthesised with meagre commentaries without being expected to advise on the worth of Straits and be responsible for the accuracy of information furnished to Keppel.

10. In both Reports, JFS had estimated Straits' pre-tax profit for the year ended 31 Dec 83 to be S$35 million, a 6Z increase oyer 1982'a profit of S$33 million. The actual 1983 profit turned out to be only S$3.9 million, l/9th of JFS's estimate! Although merchant bankers are not expected to be clairvoyant, it is difficult to see how JFS could have justified forecasting an Increase in Straits' 1983 profit when difficult business conditions were noted in JFS's June Report.

11. The Authority is satisfied that JFS’s conduct of its merchant banking activities has been unsatisfactory in that it failed to meet the high standards of professional competence and care expected of a merchant bank. In the circumstances, the Authority considers it ■pproprlstc, in the public Interest, to take the unusual step of withdrawing its auppport for JFS to continue operating as a merchant bank in Singapore.

4 October 1984 '


ASIAU-APRICAN LEGAL CONSULTATIVE COMMITTEE

EXPERT GROUP KEETIIE ON PROMOTION AND PROTECTION OF I^ESTiiENTG *

REPORT

An official level Expert Group Meeting on Promotion and Protection of Investments met at the Secretariat of the Asian- Afriean Legal Consultative Committee on 30th, 31st January and 1st Februaiy 19&4 pursuant to the decision of the Committee taken at its Tokyo Session*

The meeting was attended by participants from 23 countries, namely, Arab Republic of Egypt, China, Cyprus, India, Iraq, Japan, Republic of Korea, Mauritius, Mongolia, Nepal, Nigeria, Oman, Pakistan, Philippines, Saudi Arabia, Singapore, Syria, Sri Lanka, Thailand, Tunisia, Turkey, Uganda and Yemen Arab Republic* The representatives of the Inter-Arab Investment Guarantee Corporation, the World Panic and European Communities attended as Special Invitees*

Dr* R«K* Dixit (India) was elected Chairman* The meeting gave further consideration to the drafts of three models for bilateral agreements for promotion and protection of investments in continuation of the discussions held at the previous Expert Group Meeting held in New Delhi in January 1983*

The model agreements as finalized at the Expert Group Meeting are annexed to this report*

*(This document, prepared by the Secretariat of the Asian/African legal concultative committee, New Delhi, was made available by the Department of Foreign Affairs, Canberra).


. /.hwex I.

♦REVISED 7)1?AFT OK MODEL AGKEI?1ENT FOR PROMOTION AMD PROTECTION~ 'ov rmwliiwrs

MODEL A

AGREEMENT between the Government ofand

the Government of__ for Promotion,Encouragement and Reciprocal Protection of Investments.

The Government of and thoGovernment of

Pc cognising in particular the need to promote wider cooperation between the countries of the Asian-African region to accelerate their economic growth and to encourage investments by developing countries in other developing countries of the region; ‘ *

Also Recognising that reciprocal protection of such investments will be conducive to the attainment of desired objectives in a spirit of partnership;

Desirous to create conditions in which the investments by each other and their nationals would be facilitated and thus stimulate the flow of capital and technology within the region;

The model agreement is intended to provide a possible negotiating text for consideration of governments*It is merely a model and not an adhesive text* The possibility that the text would be modified or altered in the course of bilateral negotiations to suit the needs of the parties is clearly contemplated*

0.985 ] AUSTRALIAN INTERNATIONAL LAW NEWS 389

Have agreed as follows:

Article 1Definitions

For the purpose of this Agreement

(a) fInvestment!(Alternative A)’Investment! means every kind of asset and in particular,

though not exclusively} includes:(i) movable and immovable property and any other

property rights such as mortgages} liens or pledges; ■**

(ii) shares, stocks and debentures of companies or interests in the property of such companies;

(iii) claims to money or to any performance under contract having a financial value, arid loans;

(iv) copyrights, knowhow, [goodwill] and industrial property rights such as patents for inventions, trade marks, industrial designs and trade names;

(v) rights conferred by law or under contract, . including licence to search for, cultivate, extract or exploit natural resources*

(Alter nativc B) '"Investment! includes every kind of asset such as:(i) shares and other typos of holdings of companies;(ii) claims to any performance under contract having

a financial value, claims to money, and loans;(iii) rights with respect to movable and immovable

property;(iv) rights with regard to patents, trade marks and .

any other industrial property; and(v) contractual rights relating to exploration and

exploitation of natural resources#

C 1989 AUSTRALIAN INTERNATIONAL LAW NEWS 390

(Alternative C)

'Investment1 means:(i) in respect of investment in the territory of

(First Party) ;(ii) in respect of investment in the territory of

(Second Party) •£ ■ *

(h) 'National1 ’(.Alternative A) ‘ *1 National1 in respect of each Contracting Party means a

natural person who is a national or deemed to be a national of the Party under its Constitution or relevant lav;;

(Alternative B)'National1 in respect of (First Party) means

_____ . and in respect ofSecond Party means ____ «

(c) 'Companies'(Alternative A)^Crinvvjnios' means corporations, partnerships or asso

ciations incorporated, constituted or registered in a Contracting Party in accordance vrith its laws [and includes such entities in v.hich nationals of a Contracting Party have substantial interest and majority shareholding.]

(Alternative B)'Companies' means in respect of the (First Party)______________i*1 respect of the (Second

Party)

(d) 'State Entity* means a department of government, corporation, institution or undertaking wholly ov/ned or controlled by goveriunent and engaged in activities of a commercial nature®

(e) 'Heturns' includes profits, interests, capital gains, dividends, royalties or fees®

(f) 'Host State1 means the country in whose territory the investment is made®

£ .

(g) 'Territory' means:(i) In respect of the (First Party) ____;(ii) In respect of the (Second Party) ,®


Article 2Pronction and encouragement of.investments

(i) Each Contracting Party shall take stops to promoto investments in the territory of the other Contracting Party and encourage its nationals, companies and State entities to make such investments through offer of appropriate incentives, wherever possible, which may include such modalities as tax concessions and investment guarantees.

(ii) Bach Contracting Party shall create favourable conditions to encourage the nationals, companies or State entities of the other Contracting Party to promoto investment in its territory.

(iii) The Contracting Parties shall periodically consult among themsolves concerning investment opportunities vathin the . territory of each other in various sectors such as industry, mining, communications, agriculture and forestry to determine where investments from one Contracting Party into the other may ho most beneficial in the interest of both the parties.

(iv) *[Each Contracting Party shall duly honour all commitments made and obligations undertaken by it v/ith regard to investments of nationals, companies or ‘Hate entities of the other Contracting Party.'j

Article ?>

Reception of Investments

(i^ Each Contracting Party shall determine the mode and manner in which investments are to be received in its territory.

(ii) The Contracting Parties may determine that in a specified class of investments, a national, company or State entity of a Contracting Party intending t« make investment in the territory of the other Contracting Party including collaboration arrangements on specific projects, shall submit its or his proposal to a designated authority of the Party tixere the investment is soutfit to bo made. Such proposals shall be processed expeditiously and so soon after the proposal is approved, a letter of authorisation shall be issued and the investment shall be registered, where appropriate, with the designated authority of the host State®Tho investment shall bo received subject to the terms and conditions specified in the letter of authorisation.

* There were sane differences of views on the need for inclusion of this clause®


(iii) The host State shall facilitate the implementation and operation of the investment projects through suitable administrative measures and in particular in the matter of expeditious clearance of authorisation or permits for importation of goods, employment of consultants and technicians of foreign nationality- in accordance with its laws and regulations.

Article 4

IIost-Favoured-Nation Treatment

(i) Bach Contracting Party shall accord in its territory to the investments or returns of nationals* companies or State entities of the other Contracting Party treatment that is not less favourable than, that it accords to the investments or returns of nationals, companies or State entities of any third State.

(ii) Each Contracting Party shall also ensure that the nationals, companies or State entities of the other Contracting Party are accorded treatment not less favourable than that it accords to the nationals or companies or State entities of any third State in regard to the management, use, enjoyment or disposal of their investments including management and control over business activities and other ancilliary functions in respect of the investments.

*r^rticlo 5

National T re atmont

(i) Each Contracting Party shall accord in its territory to the investments or returns of nationals, companies or State entities of the othor Contracting Party treatment -that is not lens favourable than that it accords to the investments or returns of its own nationals, companies or State entities.

(ii) Each of the Contracting Parties shall extend to the nationals, companies or State entities of the other Contracting Party, treatment that is not less favourable than it accords to its own nationals, companies or State entities in regard to management, control, use, enjoyment and disposal in relation to investments which have been received in its territory.*j


Article 6

Repatriation of capital and returns

(i) Each Contracting Party shall ensure that the nationals, companies or State entities of the other Contracting Party are allowed full facilities in the matter of the ri^it to reptatriation of capital and returns on his or its investments subject, however, to any conditio;, for re-investment which may be stipulated at the time of the reception of the investment and subject also to the ri$it of the host State to impose reasonable restrictions for temporary periods in. accordance with its laws to meet exceptional financial and economic situations [as determined in the light of guidelines generally applied by the BIF or such other criteria as may be agreed upon by the parties']® The capital ar.d returns allowed to be repatriated shall include emoluments and earnings accruing from or in relation to the investment as also the proceeds arising out of sale of the assets in the event of liquidation or transfer*

(ii) In the event of exceptional financial or economic,situations as envisaged in paragraph (i) of this article, the host State shall exercise its powers to impose reasonable restrictions equitably and in good faith* Such restrictions shall not extend ordinarily beyond a period of . „ . ..... . - —*

Any restriction in operation thereafter shall not impede the transfer of profits, interests, dividends, royalties, fees, emoluments or earnings; as regards the capital invested or any other form of returns, transfer of a minimum of 20 per cent in each year shall be guaranteed.

(iii) Repatriation shall be permitted ordinarily to the country from which the investment originated and in the come currency in vfoich the capital was originally invested, or in any other currency agreed upon by the investor and the host State at the rate of exchange applicable on the date of transfer upon such repatriation unless otherwise agreed by the investor and the host State*


Article 7

Na t i or.rljnnrbljxit exp r op r i at ion and p .gym ent o f camp ear, at ion in respect thereof

(i) Investments of nationals, companies or State entities of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation in the territory of the other Contracting Party except [for a public purpose] [in national interest] of that Party and against prompt, adequate and effective compensation provided that such measuros arc taken on a non-discriminntory basis and in accordance with its laws*

(ii) Such compensation shall be computed on the basis of the value of the investment immediately prior to the point of time when the proposal for expropriation had become public knowledge to be determined in accordance with recognized principles of valuation such as market value. Where the market value cannot be readily ascertained, the compensation shall be determined on equitable principles taking into account inter alia the capital investod, depreciation, capital already repatriated and other relevant factors. The compensation shall include interest ata normal commercial rate from the date of expropriation until the date of payment. The determination of the compensation, in the absence of agreement being reached botv/een the investor and tlie host State, shall be referred to an independent judicial or administrative tribunal or authority competent under the laws of the expropriating Stato or to arbitration in accordance with the provisions of any agreement between the investor and the host State* The compensation as finally determined shall be promptly paid and allowed to be repatriated.

(iii) Where a Contracting Party nationalises or expropriates the assets of a company which is incorporated or constituted under the laws in force in its territory and in which nationals or'companies or State entities of the other Contracting Party ov.n shares, it shell ensure that prompt, adequate and effective compensation is received and allowed to be repatriated by the owners of the shares in the other Contracting Party. Such compensation shall be determined on the basis of the recognized principles of valuation such as the market value of the shares immediately prior to the point of time when the proposal for nationalisation or expropriation had become public )n\owledge® lhe compensation snail includo interest r.t a normal commercial rate from the date of nationalisatio:^ or expropriation until


the date of payment. If any question arises regarding the determination of the compensation or its paymentt such questions shall he referred to an independent judicial or administrative tribunal or authority competent under the laws of the expropriating State or to arbitration in accordance with the provisions of any agreement between the investor and the host State*

Article 8

Compensation for Locoes

*[(i) Nationals, companies or State entities of one Contracting Party whose materiel assets in the investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflictf revolution, a state of national emergency, revolt, insurrection or riot in the territory of the latter Contracting Party, shall be accorded by that Contracting Party treatment regarding restitution, indemnification, compensation or other settlement, 210 less favourable than that it accords to (its own nationals, companies or State entities or to ) nationals, companies or State entities of any third State#]

(ii) Nationals, companies or State entities of one Contracting*rParty who suffer losses in the territory of the other Contracting Party resulting from:

(a) requisitioning of their property by its forces or authorities; or

(b) destruction of their property by its forces or authorities which was not caused in combat action or was not required by the necessity of the situation;

shall be accorded restitution or adequate compensation and the resulting payments shall bo allowed to be repatriated*

Article 9

Access to courts ?j,d tribunalsThe nationals, companies or State entities of one

Contracting Party shall have the right of access to the courts, both judicial and administrative# end other authorities comoetont under the lawn of tho other Contracting Party for redress of his or its grieve:.cos in relation to any matter concerning any investment including judicial review of measures relating to expropriation or antionalioation, determination of compensation in the ovont of expropriation or nationalisation, or losses suffered and any restrictions imposed on repatriation of capital, or returns*

Several participants had reservations on tho provisions or *kj o *«»x:.graph«


Article 10

Settlement of Investment Disputes- 1.1 W ■» ll II l■ ■ Ill I mm

(i) Each Contracting Party consents to submit any disputeor difference that may arise out of or in relation to investments made in its territory by a national, company or State entity of the other Contracting Party for settlement through conciliation or arbitration in accordance with the provisions of this Article*

(ii) If any dispute or difference should arise between aContracting Party and a national, comp?uiy or State entity of tho other Contracting Party, which cannot be resolved within a period of througi negotiations* either party tothe dispute may initiate proceedings for conciliation or arbitration unless tho investor has chosen to avail himself or itself of local remedies*

(iii) Unless tho parties have reached agreement to refer thedisputo to conciliation under the provisions of tho International Convention for the Settlement of Investment Disputes between States and Nationals of other States 1565, conciliation shall take place under tho UNCITRAL Conciliation Rules 1980 and tho assistance of , may be enlisted in connectionwith the appointment of Conciliator(s)•

(iv) Where the conciliation proceedings have failed to resolve t)ie dispute as rdso in tho event of agreement having been reached to resort to arbitration, the dispute shall be referred to arbitration at the instance of either party to the disputo within a period of throe months#

(v) Any reference to arbitration shell be initiated under tho provisions of the International Convention on the Settlement of Investment Disputes between States and nationals of oilier States 1965 or "the Additional Facility Rules" of ICSID, whichever may be appropriate* In the event of neither of these procedures being applicable, the arbitration shall take place in accordance with the UNCITRAL Arbitration Rules 1976, and the appointing authority for the purposes of such rules shall be

(vi) Neither Contracting Party shall pursue throu^i diplomatic channel any matter referred to arbitration until the proceedings have terminated and a Contracting Party has failed to ?})ide by or to comply with the award rendered by the arbitral tribunal


Article 11

Settlement of disputes between Contract!r.g Parties

(i) Disputes or differences between the Contracting Parties concerning interpretation or application of this agreement shall bo settled through negotiations*

(ii) If such disputes and differences cannot thus be settledf the same shcd.1 upon tho request of either Contracting Party be submitted to cv\ arbitral tribunal#

(iii) An arbitral tribunal shall be composed of three members# Each Contracting Party shall nominate one member on the tribunal v/ithin a period of two months of the receipt of the request for arbitration* The third member, who shall be the chairman of the tribunal, shell be appointed by agreement of tho Contracting Parties* If a Contracting Party has failed to nominate its arbitrator or where agreement has not been readied in regard to appointment of the diairman of the tribunal within a period of three months, either Contracting Party may approach the President of tho International Court of Justice to make the appointment*The chairman so appointed shall not be a national of either Contracting Party#

(iv) The arbitral tribunal shall reach its decision by majority of ./votes# Such decision shall be binding on both the Contracting

er

Parties* The tribunal shall determine its own procedure and give directions in regard to the costs of the proceedings#

Article 12 ,Subrogation

If either Contracting Party makes payment under an indemnity it has given in respect of an investment or apy part thereof in the territory of the other Contracting Party, the latter Contracting Party shall rocognize:

(a) the assignment of any ri^it or claim from the party indemnified to the former Contracting Party or its designated Agency; and

(b) that the former Contracting Party or its designated Agency is entitled by virtue of subrogation to exercise the ri^its and enforce the cl cam s of such a party#


Article 13

yx cop t.ions

Neither Contracting Party shall be obliged to extend, to the nationals or companies or State entities of the other, the benefit of any treatment, preforence or privilege viiich may be accorded to any other State or its nationals by virtuo of the formation of a customs union, a free trade area or any other regional arrangement on economic co-operation to sshich such a State may be a party* ** •

‘ Article 14 .

Application of the Agreement

£ The provisions of -this Agreement shall apply to investments made after the coming into force of this Agreement *[ajid the investments previously made which are approved and registered by the host State (in accordance with its laws) within a period

_ from the date of entry into force ofthis Agreement.] '

Article 15

Entry into force**[This Agreement shall enter into force on signature.]

or**[This Agreement shall enter into force as from______ .

or**[This Agrecnont shall be ratified and shall enter into

forco on the exchange of instruments of ratification.]

* There were sane differences of views about the pastinvestments being covered* *

** Alternative provisions*

i


Article 16

"ati on and Termination

This Agreement shall remain in forco for a period of• Thereafter it shall continue in force until

the expiration of twelve months from any date on which either Contracting Party shall have given written notice of termination to the other. ^[Provided that in respect of investments made whilst the Agreement is in forcei its provisions shall continue in effect with respect to such investments for a period of

years after the date of termination.]

In Witness wheroof the undersignodt duly authorised thereto by their respective Governments, have signed this Agreement©

Pone in duplicate at this,of.................. .198 •© .[in the______

• day and

authoritative© ]languages, both texts being equally

For the Goveri'jnent of the _____

For the Government of the

* There were some differences of views whetherpast investments should bo covered#

• mm 11

*R^J1T.D,TOAFT OF H05)?,h AGRIflftiKVIT FOR PROMOTION AND PROTFCTTOTJ OF IRVrisiVh^TS *—

MODEL B

AGREEMENT between the Government of and

the Government of for Promotion,Encouragement and Reciprocal Protection of Investments.

The Government of_________theGovernment of

11985 3 AUSTRALIAN INTERNATIONAL LAW NEWS 400

fie cognising in particular th need to promote wider cooperation between the countries of the Asion-African re/dor. to accelerate their economic growth and to encourage f.-vectr.entsby developing countries in other developing countries of the region; *■ •

Koooffiiising that reciprocal protection of such investments will be conducive to the attainment of desired objectives in a spirit of partner ship; ’

£.5ffArous create conditions in which investments by each other and their nationals would be facilitated end thus stimulate th- flow of capital and technology within the region;

Have? agreed ns foil own:—

Article 1 * *

Definitions

For the purpose of this Agreement

(a) * Investment*

(Alternative I.)

Vr.ventona^. means evory kind of asset and in particular, thou^i not exclusively, includes:

(i) movable and immovable property and any other^ property rights such as mortgages, liens or

pledges;(ii) shares, stocks and-debentures of companies or

interests in the property of such companies;(iii) claims to money or to any performance under

contract having a financial value mid loans;(iv) copyrights, knowhow, [goodi/illj and industrial

property rights such as patents for inventions, trade marks, industrial designs, and trade names;

(v) rights conferred by law or under contract, including licence to search for, cultivate, extract or exploit natural resources#

(Alternative B) ■

I nvostment * includes every kind of asset such as:(i) shades and other types of holdings of companies;


(ip claims to any performance undor contract havinga financial value, claims to money and loans;

(iii) rights with respect to movable and immovableproperty;

(iv) rights with regard to patents, trade marks,and any other industrial property; and

(v) contractual rights relating to explorationand exploitation of natural resources*

(Alternative C)• I nvj aim ant' mcnas: -

(i) ir. respect of investment in the territory of

• dp

(First Party) ;in respect of investment in the territory of

. (Second Party) •V

(t) 'National'

(.Alternative. A)* National1 in respect of each Contracting Party means

a natural person who is a national or deemed to be a national of the Party under its Constitution or relevant law*

(Alternative B)* Natior.nl* in respect of (First Party) mear.s

and in respect of(Second Party) means , , *

( c) 1 Companies*

(Alternative A)1Companios1 means corporations, partnerships or asso

ciations incorporated, constituted or registered in a Contracting P^rty in accordance with its laws £ and includes such entities in which nationals of a Contracting Party have substantial interest and majority shareholding*]

(Alternative B)_*Companies1 means in respect of the (First Party)

- .....- ........ and in respect of- ■ - - - - ------ ---------------- -- ■ |L|____ ,_____ ____ *

the (Second Party)


(d) State Entity1 means a department of government, corporation, institution or undertaking wholly owned or controlled by government and engoged in activities of a commercial nature*

(e) 'Returns1 includes profits, interests, capital gains, dividends, royalties or fees*

«v

(f) 'Host State' means the country in whose territory the . Kinvestment is made*

(g) 'Territory' means:■ t\(i) in respect of the (First Party) ; ■(ii) in respect of the (Second Party) »

Article 2

Promotion and encouragement of investments

(i) Each Contracting Party shall take steps to promote investments in the territory of the other Contracting Party and encourage its nationals, companies and State entities to make such investments, through offer of appropriate incentives, whorever possible, which may include such modalities as tax concessions and investment guarantees*

(ii) Each Contracting Party shall create favourable conditions for the nationals, companies or State entities of tho other Contracting Party to promote investment in its territory*

(iii) The Contracting Parties shall periodically consult among themselves concerning investment opportunities within the territory of each other in various sectors such as industry, mining, communications, agriculture and forestry to determine where investments from one Contracting Party into tho other may bo most beneficial in tho intorerjt of both the parties*

(iv) *[Each Contracting Party shall duly honour all commitments made and obligations undertaken by it with regard to investments of nationals, companies or State entities ofthe other Contracting Party*]

Article 3

Reception of Investments

(i) A national, company or State entity of a Contracting Party intending to make investment in the territory of the other Contracting P.’Tty including collaboration arrangements on specific projoctsf shall submit his or its proposal to a designated authority of the Party whore the investment issou$it to be inada* Such proposals shall be examined expeditiously and so soon after the proposal is approvedf a letter of authorisation shall bo issued and the investment shall be registeredf where appropriate, with the designated authority of the hoot State*

(ii) The investment shall bo received subject to the terms and conditions specified in tho letter of authorisation. Such terms and conditions may include the obligation or requirement concerning employ..out of local personnel and labour in tho investment projects! organization of training progrc/nm©sf transfer of technology and marketing arrangements for tho products*

(iii) The host State shall facilitate the performance of the contracts relatabl© to the investments through suitable administrative measures and in particular in the matter of expeditious clearance of authorisation or permits for importation of goods! employment of consultants .end technicians of foreign nationality in accordance with its laws and regulations*

(iv) The Contracting Parties shall make every endeavour •throu^i appropriate moons at their disposal to ensure that *their nationals! companies' or State entities comply with thelaws and regulations of the host State and also carry out in good faith the obligations undertaken in respect of the investments made in accordance with tho terms and conditions specified by the host Stato*

Article A

Koot~P' vourod-iTatior. Treatment

(i) Each Contracting Party Gholl accord ir. its territory to the investments or returns of natiornlcf companies or State entities of tho othor Contracting Party treatment that is not less favourable than that it accords to the investments or returns of nationals! companies or Stato or.titics of any third State*



(ii) E'ich Contracting Party di.-JJ. '1 co ensure that the nationals, co:np.x.ies or State entities of the other Contracting Party are accorded treatment not less favourable than that it accords to t)ie nationals or companion or Stato entities of any third State in regard to the management, use, enjoyment or disposal of their investments including management and control over business activities and other cncillir.ry functions in respect of the investments*

Article 5

*[^*■ on ^ T r oatment

(i) Each Contracting Party shall accord in its territory to the investments or returns of nationals, companies or State entities of the other Contracting Party treatment that is not loss favourable than that it accords to tho investments or roturns of its own nationals, ccmpanios or State entities*

(ii) Each of the Contracting Parties shall extend to thonationals, companies or State entities of tho other Contracting Party, treatment that is not less favourable than that it accords to its ovn nationals, companies or State entities in regard to management, control, use, enjoyment and disposed in relation to investments v/hich have beer, received in its territory*] '

Article 6

Repatriation of capital and returns

(i) Each Contracting Party shall ensure that tho nationals, companion or State entities of tho other Contracting P,.rty ore allowod facilities in tho matter of repatriation of capital and roturns on his or its investments i;: accordance v;ith tho tormy and conditions stipulated by the host Statu at tho time of the reception of the investment*

(ii) Such terms and conditions may specify:-(a) the mode and manner of repatriation of profits

and returns as also the requirement, if onyj concerning re-investment;

(b) the extent to which tho capital invested maybe allowed to bo repatriated in oach particular year;

(c) any requirement concerning the currency in which repatriation is to bo made and tho place or places of such repatriation;


(d) tho nature of restrictions that may b© imposedby tho host State on repatriation of capital and roturns in its national intorost during any poriod of exceptional financial or economic situations*

(iii) Tho stipulations concerning repatriation of capital and returns shall ‘bo sot out in the lotter of authorisation referred to in Article 3* Tiho terms and conditions so specified shall remain operative throughout the poriod of the investment and shall not bo altered without the agreement of the parties*

Article 7

Natioral.isa.tion, exproprintion and payment of compensation ?n respect thereof

( i) (Alternative 1)A Contracting Party may exercise its sovereign rigilts

in the matter of nationalisation or expropriation in respect of investments made in its territory by nationals* companies or Stato entities of tho other Contracting Party upon payment of appropriate compensation, subject however, to the provisions of its lav/s. The host State shall abide by and honour any commitments made or assurances given both in regard to nationalisation or expropriation and the principles for determination of appropriate compensation including the mod© and manner of payment thereof®

(Alternative 2)^ Investments of nationals, companies or Stato entities

of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation in tho territory of the other Conirr Ung Party except [for a public purpose] [in national interest] of that party and against prompt payment of appropriate compensation® ‘ *

(ii) (Alternative 1)*[Unless stipulations are made to the contrary at the

time of the rocoption of the investment, the expression . "appropriate eomponention" shall moan compensation calculated

on tho basis of recognised principles of valuation®]


( Altorr ':,tivo ?)

Unless stipulations arc made to tho contrary at tho time of tho reception of tho investment, tho expression "appropriate compensation" shall moon compensation determined in accordance with equitable principles taking into account the capital invested, depreciation, capital already repatriated and other relevant factors*

Article 6

Componsation for Losses

Tho Nationals, companies or Stato entities of ono Contracting Party who suffer losses in the territory of the other Contracting Party resulting from:

(n) requisitioning of their property by itc forccu or authorities; or

(b) destruction of their property by itc forcer, or authorities which was not caused in combat action or was not required by the necessity of the situation;

shall bo accorded restitution or adocru&to compensation [and tho resulting payments shall bo allowed to be repatriated*]

Article 9

Access to courts and tribunals /

IA11 q mat 1 vo 1)

The nationals, companies or State entitios of one Contracting Part.y shall leave the right /,f access to the courts, tribunals, both judicial and administrative, and other authorities competent under tho laws of tho other Contracting Party for rodroso of hie or its grievances in relation to any matter concerning an investment including judicial review of rnoasuros rdating to nationalisation or expropriation, determination of componsaticn in tho event of nationalisation or expropriation or lossou suffered and any restrictions imposed on repatriation of capital or returns* The local remedies shall b0 exhausted beforo any other step or proceeding is contemplated*

* |(.M torn.vli vo ,")

Any differ once or dicputo between tho invostor and tho hout Stato in relation to ony mattor concerning an invootmont including thoso rolating to nationalisation or expropriation, determination of compensation in tho ovont of nationalisation or expropriation or loscen ouffored and any restrictions imposed on repatriation of capital end roturns shall bo settled ihivufjx roccurco to appropriate courts and tribunals, judicial or adminiutrativo and othor authoritios oempotont under' tlio local lawn ol tho hoot State* Iloithor Contracting Party oh all pursue through diplomatic channel any sudx mattor until the local remedies ftuvo boon oxhaustod. j

Artie1 ci. JO

IdlLU.vmil!‘t of investment dirni.utcui

(i‘) Eacli Contracting Party consents to oubmit any dispute or differences tlx at may arise out of or in relation to inventmontB mado in its territory by a national, conpany or Stato entity of tho other Contracting Party for eottlomont throutfx conciliation or arbitration in accordance with the provisions of this Article*

(ii) If any dicputo or differences should aid a o botwoon a Contracting Party and a national, company or Stato entity of tho othor Contracting Party, which cannot bo resolved within aperiod of-------- -------------- - throujji negotiations, oithorparty to tho dicputo may initiate proceedings for conciliation or arbitration after tho local remodios have boon exhausted.

(lii) (.unc. 1 lint i on shall take place under the LIKC1TKAL Conciliation Kulcs 19<30 unless tho parties have readied ogrooment to refer tho dispute to conciliation under the provisions of the International Convention for the Settlement of Investment Disputes botwoon Statoc and nationals of othor States 19(p.

(iv) Whoro tlio conciliation proceedings have failed to rosolve tho dispute, it shall bo roforred to arbitration at tlioinstanco of oithor party to tho dicputo within a ported of throo month d*


(v) liny refcrcnco to arbitration shall bo initiated under tho provisions of tlio International Convention for the Settlement of Invent merit Disputes botwoon States and National n of other States I’JO’j or "tho Additional facility Rules" of ICSID, whic)>~ over may be appropriate© In the event of neither of these procedures being applicable, tho arbitration shall take placein accordance with the UNCITRAL Arbitration Rules of 1976, and tho appointing authority for tho purposos of ouch rules shall bo , . __*

(vi) Neither Contracting Party shall pursue through diplomatic channel any matter referred to arbitration until tho proceedings have terminated and a Contracting Party has failed to abide byor to oumpJy with the award rendered by tho mid Lid tribunal*

Article 11

Settlement cf disputes letv:eon C; nt meting Parties

(i) Disputes or differences botwcon tho Contracting Portion concerning interpretation or application of this ngroomont shall bo sottlod throu$i negotiations©(ii) If such disputes and differences cannot thus be settled, tho soma sluill upon the request of either Contracting Party bo submitted to an -arbitral tribunal©

(iii) An arbitral tribunal shall bo composed of throe members* Each Contracting Party shall nominato one mombor on tho tribunal within a period of two months of tho receipt of tho request for arbitration* Tho third member, who shall bo -tlio chairman of tho tribunal, shall bo appointed by agreement of tho Contracting Parties* If a Contracting Party has failed to nominate its arbitrator or where agreement has not boon reached in rogco'd to appointment of tho chairman of tho tribunal, within a poriod of throe months, oithor Contracting Party may approach tho President of tho International Court of Justico to-make tho appointment*Tho chairman so appointed shall not bo a national of oithor Contracting Party©

(iv) Tho arbitral tribunal shall roach its decision by majority of votes* Such decision shall bo binding on both the Contracting Parties© Tho tribunal shall detormino its own procedure and give directions in rogard to the costs of the procoodingo©

Art!clo 12

Snbroggti c*n

If either Contracting Party makes payment under an indemnity it has givan in rospocb of an iuvostmont or any part thoroof in the territory of tlio othor Contracting Party, tho latter Contracting Pcirty shall rocognizo:

(a) tho assignment of any right or claim from the party indemnified to tho former Contracting Party or its designated Agency; and

(b) that the former Contracting Party or its designated Agency is entitled by virtue of subrogation to exorcise tho. rights and enforce the claims of such a party*

Article 13

Px<xp tions

Woithcr Contracting Party shall bo obligod to extend to tho nationals or companion or State entitioc °f the other, tho benefit of any treatment, preference or privilege which may bo accordod to any other Stato or its nationals by virtue of tho formation of a customs union, a free trade area or any other regional arrangement on oconcmic co-operation to which such a Stato may be a party.

Article 14

Application of tho agreement

The provisions of this agreement shall apply to investments made after the coming into forco of this agreement.

Article 1f>

Entry into force

* | Thi s Agreement shall enter into force on signature.]or

*[This Agreement shall outer into forco as from * 1or

*[ffhis Agreement shall bo ratified and shall enter into forco on tlio exchange of instruments of ratification.]

* Altorruitivo provisions


Article \G

P;1 t«• it 1 on raid t o rm ingt i on

Thic agreement chall remain in forco for a period of______ yearn. Thereafter it shall continue in forco until thooxpiration of twolve monthf3 from any date on which oithor Contracting Party shall havo given written notice of termination to tlio other* [Provided that in respect of investments rnado whilst tho agreement is in forco» its provisions shall continuo in offset with respect to ouch investments for a period of ----- yonru after tho data of tormination. J

In Witnass whereof tho undoroiguod, duly authorisod thereto by thoir respective Governments, havo signed this Agreomont.

Done in duplicato at,,#*...........♦##this........♦••••••••dayof *....T58 • , [in the _________________ and—--- ----- languages, "both texts boing oquallyauthoritativoo]

For tho Govornnont oftho ___

For tho Government of tho _____

AITOX III

rmvjmmd Dir,ft of i-icroL :,oi?gi-x.’rT for pkqhottou :.im pkotkctioa1

nODMh C

Note

The provisions for incorporation in the text of this model draft v/ould bo identical with the provisions set out in Model *A* with the exception of the definition of ’Investment* in article 1(a) :uid the text of Article 14- The suggested texts for those provisions are as follows: —

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 4H

• /.rt.i clc 1

Definitions

(a) 1J n vo at non tf rn o ans:capital rad technology employed in projects or industries

in specified sectors of national importance as set out in the schedule to this /.greemont .and includes the following in r el at i on tho r r. t o:

(i) shares and other typos of holdings of companies;

(ii) claims to any pcrforna.ee under contract having n. financial value, el aims to money and loans;

(iii) rl/hts with regard to patents, trade marks and cuty other industrial property; and

(iv) contractual rights relating to exploration and exploitation of natural resources*

Article U

Application of the Agreement

Tho provisions of this Agreement shall apply to investments made after the coming into force of this Agreement whoro the investment has "boon made in specified soc.tors sot out in tlio schedule to this Agreement*


EXPROPRIATION AND COMPENSATION IN NEW SOUTH WALES -

COAL ACQUISITION ACT *

The Minister for Mineral Resources and Energy, Mr Peter Cox, today announced a compensation scheme for former owners of freehold coal.

Mr Cox said Cabinet had approved a plan to pay lump sum compensation of 50 cents for each saleable tonne of formerly private coal mined after January 1, 1982 (when the Coal Acquisition Act was proclaimed).

*It would apply only to coal which was in or had a reasonable expectation of being in a colliery holding by January 1, 1986.

Compensation would be taken as 50 cents a tonne at the time the coal is mined, deflated to a January, 1982, value.

Mineral Rent of $4 a hectare would be similarly deflated and paid as a lump sum.

This meant that a royalty to be paid in say, 1990 would be deflated to a 1982 value.

The Treasury would determine interest to be paid from January 1, 1982 to the date of compensation.

Mr Cox said charities' claims for additional compensation would be treated individually.

Recent coal purchasers would be able to lodge claims on the basis of their purchase price.

The Department of Mineral Resources would form and administer a Coal Compensation Board to receive and consider compensation claims.

A separate Coal Compensation Review Panel would also be formed to consider appeals.

Mr Cox said the compensation rate compared more than favourably with that offered when similar legislation had been passed elsewhere.

. ./2

* (The text of this press release, dated 12 February 1985 was provided by the Department of Mineral Resources and Energy,Sydney).


- 2 -

When a Conservative British Government resumed coal rights in 1938, it paid 4.55 sterling pence a tonne (equivalent to about 57 cents Aust. in January, 1982).

A substantial portion of the sum set aside for compensation was in fact paid back to the Government.

Unlike the N.S.W. Government, the U.K. Government did not give special consideration to charities.

The Menzies Government made provision for but did not pay compensation when it resumed all private mineral rights in the Northern Territory in 1953.

The Dunstan Government in South Australia followed this example when it resumed mineral rights in 1971.

In 1955, New South Wales followed the example set by the Menzies and all other State Governments when it resumed private petroleum and helium rights from all property without compensation.

However, the New South Wales Coal Acquisition Act did have one important aspect in common with these precedents - none involved any changes to surface or mining title rights.

"The package approved is well considered, equitable and fair," Mr Cox said.

"It is based on recommendations of a task force and honours commitments to allow special consideration for charities and companies and others who purchased coal rights shortly before the 1982 Act was passed may also have their claims specially assessed.

"The Coal Acquisition Act of 1982 was essential for sound, responsible Government.

"The Government has invested a billion dollars in providing rail and port infrastructure for the coal industry.


- 3 -

The industry - particularly in the Upper Hunter Valley - has benefitted from a massive Government contribution to the industry and it is only proper that the Government - and taxpayers - whose funds were used to provide industry facilities - receive some return from an industry in which everyone has invested so heavily.”

Mr Cox said further announcements would be made regarding when and where claims for compensation should be lodged.


THIRD LOME CONVENTION

Statement by the Hon. John Gihero M.P., Foreign Minister of Papua New Guinea, to the AGP Council of Ministers*

First of all, may I express my deep personal appreciation, that of my country, Papua New Guinea, and that of my region, for the great honour and privilege conferred on my to serve as President of the Council of ACP Ministers.

It is indeed a great honour, and I pledge to you my .total determination to do all that lies within my capacity, during this critical time in the life of our group, to achieve our fundamental objectives.

In this endeavour, I feel deeply moved in paying tribute to my predecessor, the Rt. Honourable Hugh Shearer,Prime Minister of Jamaica, for the exemplary manner in which he led our Group. We all owe him a major debt of gratitude. And his willingness to continue to serve on the Ministerial Negotiating Team - for which we sincerely thank him - would bring great strength to our advocacy of the ACP position.

*(This is the text of the statement by the Foreign Minister of Papua New Guinea as President of the Council of ACP Ministers. As a result of the negotiations a Third Lome Convention was signed between the 64 African, Carribean and Pacific countries and the European Economic Carrmunity on 8 December 1984. Extracts of the EEC Press Release follow. These documents were supplied by the Papua New Guinea High Commission and the Delegation of the Commission of the European Communities, Canberra.)


- 2

At this juncture, it is probably timely for me to also express our appreciation for the work done by Ambassador Francis Okelo of Uganda as Chairman of the Committee of Ambassadors at the last Ministerial Negotiating Meeting and to two of our earlier Ambassadorial Spokesmen, Chief Peter Afolabi of Nigeria and Oliver Jackman of Barbados, who have both since been-assigned new functions by their Governments.

We are equally grateful for the enthusiasm with which * their successors Ambassador Diarra of Mali as the new Chairman of the Committee of Ambassadors, and Ambassador Tuho of Ivory Coast and St.John of Trinidad and Tobago have taken to their tasks . What it ol Signifies, Colleagues, is that our group, theACPGroup^ is not without men and women of competence and devotion. * With unity,, solidarity and Cooperation I am confident -v;e can achieve our goal.

• i . *

Today, one full year after we opened the negotiations

with our European partners, and, merely three, months since

our last Ministerial negotiations in Luxembourg, we meet

here in Brussels, to s o e k to conclude tlio negotiations f or

the Third Lome Convention. It is my earnest hope that the

efforts which have been made so far, particularly by our

Ambassadors and Secretariat, would not be in vain. Nor, I

hope, fellow Ministers, will be our many long and arduous

journeys to the various Ministerial meetings which we have

had to hold on this question.

- 3 - *

I sincerely hope that we shall be able, on this occasion, to

bring to a final and successful conclusion .to all these efforts to achieve a Convention commensurate with the needs

of our peoples.

These fneotings that-wc are holding in Brussels this week are therefore probably the most crucial ones.They require us first of all to Reflect on the objectives we set ourselves in Luxembourg last October and to assess

how close we are today to achieving them. • .

I therefore commend to all of us a re-reading of that

masterly statement by our then distinguished President

M o g w e as we now enter the final stages of these negotiations.

. Against that background, let us recall that at theend of the last ACP/ELC Ministerial Negotiating Meeting

in Luxembourg, our Ministers were mandated, first of all .

to finalise the text relating to the subjects on whidiwe

have reached agreement in principle with our Europeanpartners. Secondly, negotiations were to continue at

Ambassadorial level with a view to reaching conclusions,

on as mejny of the remaining subjects as possible) And,where agreements were not reached, our negotiators were

to clearly outline the divergencies and the rationale forthe respective positions of the two sides. It was these

-itrJT ‘last set of issues which were to be the subject of Minis

terial negotiations in a restricted Ministerial meeting

which would, as regards the ACP, be ad referendum to the

CoiHicil of ACP Mjnlr. tors. '



- 1 -

It Is those restricted Ministerial negotiations

for which we are today undertaking the final preparations

on the basis of the reports submitted by our Committee

of Ambassadors. You would recall that we agreed in Luxembour that our negotiating team for this meeting would comprise the President and the Immediately Past President of Council,

the Ministerial Spokesmen, the Chairman of the Committee

Of•Ambassadors and the Ambassadorial Spokesmen and the

Secretariat. It is this team that has the re sp on s ib i 1-i t y

to seek to resolve the outstanding issues with our European

partners and to submit the results for the benediction of our Council. .

. Dear Colleagues, I need not tell you that the

task before us is' a difficult one. Nor can I over

emphasize its extreme importance. It is in the interest .

of our countries and our peoples that we must succeed.

We must therefore get down to work immediately, following

closely the agenda and studying carefully the documents

that have been prepared for us by the Committee of

Ambassadors and the Secretariat. It is my hope that in

doing so we will execute this work as quickly as possible, so that at the end of our meeting today, we would be able to give clear mandate to our spokesmen. Some of

the issues facing us, such as access of ACP products to

the European Community market, the rules of origin and

the volume of finance, to mention but a few, are extremely

difficult. I would 1ike therefore to urge the Spokesmen

again and again to acquaint themselves thoroughly with all

flMHS] AUSTRALIAN INTERNATIONAL LAW NEWS 419

- 5 -

aspects of their subject as our European collegues are likely to prove extremely touch negotiators.

Dear Colleagues, this is therefore not the time

to dwell on the importance which we of the ACP Group attach to the Lorn6 Convention. That is self-evident. All of you in this room are fully conscious of the importance of this

North/South relationship and of the immense struggle in

bringing about any improvements in the present Internationa

Economic Order. Our relationship with the EEC, as reflected by our Convention, offers a great opportunity

to this end. It therefore behoves both sides - ACP and

EEC - to make the greatest effort to ensure t-hat the

negotiations for Lom6 III are a success..

Honourable Ministers, Your Excellencies, Distinguishe

Delegates, Ladies and Gentlemen, let me in closing recall

President Mogwe’s candid admission in Luxembourg, last-

October, we are as much the architects of our fate as

wi: n rc i t s victim:,.

It is for this reason, that the distinguished Prime<n

Minister of Fiji, way back in 1977, reminded us in Lusaka

that our cooperation is rare in the history of the developing

world and enjoined us in on earnest prayer not to SQUANUFR

this opportunity. That: too is my appeal today.

I thank you. . .


THE THIRD LOME CONVENTION

The third Lome Convention will be signed between

sixty four African, Caribbean and Pacific countries

and the European Economic Conmunity on 8 December 1984.

Brussels, November 1984.


THE CONTRACTING PARTIES TO THE CONVENTION

THE EUROPEAN COMMUNITY THE 64 ACP STATES

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REPUBLIC MADAGASCAR TANZANIACHAD MALAWI TOGOCOMOROS MALI TONGACONGO MAURITANIA TRINIDAD & TOBAGODJIBOUTI MAURITIUS TUVALUDOMINICA NIGER UGANDAEQUATORIAL GUINEA NIGERIA WESTERN SAMOAETHIOPIA . PAPUA NEW GUINEA VANUATUFIJI RWANDA ZAIREGABON ST. CHRISTOPHER & NEVIS ZAMBIAGAMBIA ST. LUCIA ZIMBABWE

EUROPE OF THE TEN

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I. INTRODUCTION

The negotiations between the Community and the sixtv-four countries of the ACP Group, plus Angola and Mozambique, for the renewal of the Lome Convention have been successfully concluded.

The partners have aareed pn the text of the new Convention, which will hesigned in Lome on 8 December 1984 and which will govern their relations for a furtherperiod of five years. “

This is the culmination of the both sides' desire, expressed at the opening of the negotiations, to "continue, intensify and increase the effectiveness" of cooperation based on solidarity and mutual interest.

1. In the new Lome Convention the rights acquired and obligations established under the earlier Conventions have been confirmed. The principles underlying ACP-EEC cooperation, namely non-interference and mutual respect for the sovereignty of the parties, have been reaffirmed. The main instruments of cooperation are still there, and have been strengthened - trade arrangements (including some special arrangements), Stabex, Sysmin, nrotocols and so on.

In a particularly unfavourable international climate, where most of the multilateral development financing institutions are findinq their capacity for action reduced (and sometimes drastically), the Community, via this new Convention, is keeping its financial contribution up to a level which will enable it to continue its financial and technical cooperation at the sane pace as in the past.

Nevertheless, the new Convention means much more than merely maintainino acquired rights and established obligations.

2: Having learned from the changes to the world economic environment, the particular difficulties confrontino the ACP countries and the experience of nearly a quarter of a century of cooperation, the Community and the ACP States nave endeavoured to seek out or establish all the components and arrangements that‘will help make aid more effective.

Steppinq up effectiveness has been the negotiators' main concern ..j this .joint ambition is reflected in all aspects of the Convention, both in the objectives of cooperation, which are set out clearly right at the beginning of the Convention, and in the instruments, all the mechanisms of which have, been overhauled in detail with a view to streamlininq, adapting and rendering then more effective, to meet new requirements. Among the improvements is Stabex, which has been allocated more funds, and of which most of the facilities have been revamped so as to make a more effective contribution towards restoring the agricultural commodity sectors in the ACP States to health, since these sectors caused particular concern to the negotiators. Another -'nstrument that can be mentioned is the mini no facility (Svsmin); here, too, improvements have been made to the mechanisms and procedures and the system will now be able to cover a greater number of ACP ore-producing countries.

2 -

The trade arrangements under Lome, which were already extremely liberal in that they contained particularly favourable provisions for products of importance to the ACP States (bananas, bovine meat, rice, rum and sugar) and provided for free access for virtually all ACP exoorts, have also been reviewed in detail and improved wherever this was necessary and possible.

Efforts to achieve qreater effectiveness were concentrated on the implementation of financial and technical cooperation. The desire to match aid to new requirements and coordinate operations properly with policies pursued by the recipient country meant adopting new forms of contribution (maintenance aid, sectoral programmes, support for sectoral policies and strateaies, with food strateqies top of the list) to back up the traditional aid for new capital projects and,- especially, making the aid-programmino process considerably more thorough.

3. Furthermore, there are numerous innovations in this Convention in fields that were either missing altogether in the preceding Conventions or dealt with only superficially.

The provisions on cultural and social cooperation constitute both a new field of cooperation and an enrichment of operations in all the other areas, since 1t Is becoming Increasingly obvious that a crucial factor for success is that the cultural and social dimension be taken into account.

The framework and scope of long-term operations (campainns with specific themes) for the preservation of natural balances, and for drouoht and desertification control in particular, are also established under the Convention.

The important role that private investment can play and the need to provide a favourable climate and fair and stable treatment for such investment are acknowledged. In this area, the Convention provides a framework and precise auidelines, particularly as reaards the principle ofnon-discrimination, which should encourane the conclusion of bilateral aoreements between the Member States and the ACP States. There is also nrovision for undertaking a series of studies so that the ACP States nay gain easier access to capital markets and to improve external trade financing facilities. Among the studies is that on a joint svsten to guarantee orivate European investment in the ACP countries. ' All this has to be carried out witn due care, of course.

The new Convention also provides a framework for further cooperation in the spheres of fisheries and shipping, taking account both of the growing importance of these sectors for the development of the ACP countries and of developments in the world at large, such as the United nations Conference on the Law of the Sea and the Code of Conduct for Liner Conferences.

<3. Lastly, a major concern in the new Convention has been to strencthen the ACP-EEC consultation mechanisms and joint institutions, which are the main forums for dialogue and cooperation.


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II.DEVELOPMENTS III THE MAIN AREAS

1. The aims of cooperation

For the first time the Convention will have an introductory part, which will, as it were, constitute the framework for the texts as a whole. These are the results of thorough discussion at the start of the neootiations on the general objectives of our cooperation, on the underlying principles and on how to put it into practice: more self-reliant and self-sustained development of the ACP States with the support of the Community; respect for the parties' sovereignity; eouality of the partners; mutual interest and interdependence; the central role of man and the welfare of the people; the importance of cooperation in the matter of food; particular attention to be paid to the least-developed, landlocked and island countries, and so on.

This part also contains the essential principles governing the various cooperation instruments, and also the Convention's aims and guidelines in the main areas of cooperation.

The writino into the Convention of the aims and principles underlvino ACP-EEC relations constitutes the political expression of what has been achieved by reinforced and renewed cooperation over a nuarter of a century, namely the common heritage.

2. Financial and technical cooperation

(a) In the striving after effectiveness in the financial and technical Chapter of Lome III, the key item is the entirely new, ambitious pro- granminq process which has been set up after long and difficult negotiations. It is right to sav that there is a world of difference between the old system, characterized by the rapid seeking, without real consultation, of projects to be financed in sectors more or less clearly defined, and the new process which, instead, nests on true coordination of action between donors and and the recipient country, account belna taken of that country's choice by right of Its own development stateoy, with the aim of discussion and identifyina,through thorounhnoinq exchanges of views in the light of shared expe^ence, not only projects and operations, but especially sectors on which to focus the Community's financial support, development objectives and priorities, and the most suitable ways and means of achievinn them.

(b) The najor new feature in Lome III as regards the sectors of cooperation is that of no longer confining action exclusively to the search for and execution of new capital projects, but of extending the range of possible operations, in order to step up effectiveness, to operations of the programme-aid type (programmes to promote sectoral development and imports, of which the purpose is to help achieve maximum return from the productive sectors), going as far as the financing of inputs in the productive system and, above all, the financinq of maintenance (both in the startinn-off period and as a follow-up to operations undertaken earlier). Operations financed by the EIH itself will be able to cover the rehabi1itation of industrial, energy and mining projects and no longer only the building of installations.


- 4 -

(c) As regards procedures, improved cooperation tCrouch an ongoing dialogue will make it possible, within a standfnq joint committee at the level of ministers, ambassadors and experts, to examine systematically practical difficulties hampering execution, implementation procedures, and bottlenecks caused by red tape, so that, whenever necessary, attention can be drawn to delays and cumbersome practices in order to improve efficiency. In this context particular attention is to be paid to Joint evaluation. At every stage, whether of financing decisions on development projects or matters of daily routine such as the issue of invitations to tender, the award of contracts, the preparation and approval of shortlists of technical assistance consultancies or experts, to quote only a few examples, strict time-limits for replying and taking action have been fixed and will have to be observed. In addition, the Article 108 Committee's role has been reinforced.

(d) The microproject procedure, which makes it possible to act at grassroots level, beyond the reach of large-scale projects that eat up financial resources, rapidly and with an effectiveness auraranteed by the participation in the financing and implementation of schemes of the people concerned by them, has been extended to medium-scale operations 1n the form of sets of small schemes in a specific sector for which 1t will be possible to take overall decisions, under a programme, while leaving it to the national authorities, wi th the approval of the Commission's delegate on the spot, to approve the individual decision without having to refer back to Orussels.

(e) Technical cooperation, 1n the interests of greater effectiveness, has undergone profound reforms affecting its nature (oreater consideration of the needs, better adaptation to local conditions, the taking into account of own resources) and also the implementing procedures, (priority for tendering, with the double aim of improving the transparency of operations and keeping clown the costs, which are often excessive).

(f) The battery of means available for taking action in cases of emergency, which already enables a response to be made with remarkable flexibility and speed whenever natural or other disasters occur, has been extended in two directions: even greater flexibility in the definition of a broader range of the operations and products it will be possible to finance without, of course, goinq as far as the- financing of reconstruction work, which is not part of emeroency aid; and the funding of schemes to integrate and rehabilitate refugees, such schemes havino been totally neglected by the earlier Conventions. A suitable allocation of funds will be earmarked for this purpose outside the Indicative programmes, with a portion for emergency aid and another for refugees, and, where needed transfers from one to the other by a process of timely osmosis will he possible.


- r, -

3. Trade

(a) Access for agricultural products

.With the new text comes an extension and improvement of the procedures governing the -processing of ACP requests for preferential access for their agricultural products. Provision is made notably for a precise time-1 init for response to such requests (six months). Also, regarding requests for more favourable tariff arrangemenents, the Community will take account of the concessions granted to other developina countries in respect of the same products, and of the possibilities offered by the off-season market.

(b) Safeguard clause '

The provisions of Lome II are maintained in the new text but there will be an annex setting out the arrangements for applying the prior consultation systems decided upon by the ACP-EEC Council in May l°d3. These arrannements will prevent any unforeseen recourse to safeguard measures. ‘ ,

(c) Particular products

The rights and obligations under Lone II as regards bananas, bovine meat, rice and run are maintained or improved upnr in the new Convention.

(d) bevelonnent of trade and services

Under the new Convention(i) the objectives of trade promotion are broadened to include cooperation

aimed at stepping up the ACP States' capacity to expand trade on aself- reliant basis. For example, aid will be provided for devising a trade strategy, for improving contacts between those engaoed in economic activity and for increased regional cooperation, payina special attention to local markets (and regional and international markets) and south-south trade;

(ii) new emphasis is placed on mastery of the tourist industry by the ACP States;

(iii) the scope of operations is broadened to include services; for example,technical assistance may be provided for export credits and insurance

Rules of origin

(a) The present system of rules of origin has boon considcrahly simplifiedunder the new Convention, which will make it easier for the Afp States to understand and use (for example, a neneral tolerance rule of 5% of non-ori01nating components has been introduced);

(b) the deroaation system has been improved by the granting of longer derogation periods and the introduction of the value added criterion, together wiht a favourable disposition from the outset towards granting derogations;

(c) better account is taken of the ACP States' needs regardino the rules of. origin for fishery products;

(c) one restriction (50^ of the value of the products, parts or components used in the manufacture of a product must be orioinatinq) has been lifted in respect of a number of lines of interest to the ACP States.


- ►. -

4. A more effective Stahex system

(a) The system’s coverage of risks has been extended under the new Conven * 1tion by: ' '

1. adding three new products of interest to the ACP countries (dried bananas, mangoes and shea nut oil);

ii. lowering the dependence and fluctuation thresholds (general lowering from 6.5% to 6% and lov.*ering from 2% to 1.5% for the least-developed, landlocked and island countries);

iii. investment in the market, over certain periods of the year, of part of the annual instalment, which will nenerate interest to boost the Stabex resources.

(b) The usual method of calculating the equivalent of the transfer basis inECUs ftas"been mafntainecT in the neUTorTvcntion‘~Tni'T“tTie"r‘e~Ts'“an~nno- vatTon" con s fstfriq of ~a me chan fTm to correct' tUe“eTfec ts of anoTyiTfqnthe method where excessive~e~xchanqe-rate~fTuctuations occur; "The corrective mechanism is two^/ay; "it works wnerTthe ACP State’s currency is revalued or devalued vis-a-vis the CCU.

(c) The Convention contains clear rules for reducing transfers where funds prove insufficient to cover all acknowledoed claims durino a oiven year.

(d) Stricter administrative rules and improved monitoring of whether theuse made of~the’ Funds’ conforms to TTie~of)Xec ti ves of "t'Pie~systern* are the main innovations here. ' '---------------------------

tinder the new system, a forward timetable of deadlines for the processing of pendina requests and a procedure whereby the Commission informs the ACP-EEC Council have been set up.

There is a special procedure for the settlement of disputes.

Also, every ACP State concerned is obliged to supply monthly statistics so that the Commission can keep track of trends for the products covered.

Resides giving statistical data, transfer reguests must contain substantial information on the loss of earnings and on the programmes or operations to which the ACP State undertakes to allocate the funds, in accordance with the objectives of the system.

l'here the recipient State intends to use the funds in a sector other than that affected by the loss of earnings it must oive the reasons for this decision.

The transfer agreement may he concluded only once the Commission has received this information.

Discipline has been stepped up regarding reports on the use of transfers. Should the ACP State persist in defaulting, the Commission nay defer the application of any subsequent transfer decision.


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5. Anricultural comodities

There has been an appreciable extension of this area of cooperation. The new Chapter on agricultural commodities confirms the extreme dependence of most ACP States on their exports of such products and recognizes the need to make judicious use of all the instruments and resources that can Pc of service to the sector*

A joint committee on agricultural commodities is beino set up so that cooperation in this field can be monitored closelv and constantly.

There are to be exchanges of views between the Community and the ACP States v/here the conclusion or renewal of an international agricultural commodity agreement is envisaged. '

6. Sysmin '

The aims, scope and management•procedures of Sysmin have been spelt out in greater detail.

(a) The system's prime objective is to help restore the viability of the •mining industry in the ACP countries concerned (rehabilitation, maintenance, rationalization). Where this aim is found unattainable, the system nay rjive backinn to diversification neasures.dote that, in the preceding Convention, Sysrin roncentratd on the maintenance of production capacity.

(b) The admissibility rules (dependence thresholds, criteria for bringing the system into ooeration) and trie list of products covered remain unchanged, but recourse to Sysmin will also be possible, by case-by-case derogation, where the mining industry plays an essential economic role in an ACP country because of its scale and its direct spin-off.

(c) Sysmin aid is still in the form of contributions to clearly defin'd projects, such aid ooing to ACP countries dependent on their mining industries where those industries are affected by serious unforeseen ciresistances which are independent of the will of the States concerned.

(d) A number of provisions have been adopted in order to speed up the appraisal of requests and the implementation of aid in order to coordinate such aid measures with other Convention instruments, for instance those of the FID, that can he used to help the mining industry.


fl -

7. Investnent

This Chapter compromises statements of principle and undertakings which have not yet made their appearance in the context of the north-south neootiations.

(a) The Chapter contains:

- a recognition by the two parties of the importance of private investment and an undertaking to promote it;

- a joint undertaking to accord investors fair and equitable treatment to encourage or create clear, stable conditions conducive to investment;

- a joint committment to maintain a predictable, safe investment climate;

- a statement of willingness t.o negotiate agreements between states;

- an affirmation of the principle of non-discrimination when negotiating, applying and interpreting such agreements, this principle being clearly set out in a joint declaration.

(b) The Chapter also contains a commitment by the parties to:

- examine the possibility of a joint ACp-EEC insurance and guarantee system to be complementary to the existing national systems;

- study neaures to facilitate and exnand private capital flows to the ACP States (cofinancing, ACp across to International financial na rk e t s );

- seek technical and financial means of facilitating ACP exports and assisting national and regional financing institutions.

P. Aoricwlture

This Chanter has also been intensively overhauled and takes account of the importance attached to the food aspect and of recent experience, support for food policies and strategies; the linking of food aid, alternative operations and the supply of available agriculture products with structural measures to improve local production and brinn about greater food security.

Particular note should be taken of the Community's open attitude - after many years of reticence on the subject - to the ouestion of supplying the ACP countries with the agricultural products available in the Community, the oossibility of longer-term advance fixinq of refunds on exports to all ACP States and for a range cf products established in accordance with the food needs expressed by the ACP States and the possibility of concluding specific agreements with those ACP States which so request in the context of their food security policies.


- -

9. Campaigns \/ith specific themes

There is the possibility under the nev: Convention of undertak i no or participatinq in operations aimed at maintaining nr restorina natural’ balances. Such ODeratuons normallv call for a regional approach and, hy their nature, defy any given tine scale; they include drouoht and desertification control, combatting the effects of natural disasters by establishing prevention and aid necahnisms, control of major endemic diseases and epidemics, larae-scale operations to promote health and hyqiene, and enerpy savings camoaions.

Drought and desertification control

The parties have agreed to qive special attention to this aspect of cooperation, which calls for long-term operations and narticioation by the international comunity in a spirit of solidarity.

10. Industrv .

There are a few improvements. The text is no re concise and emphasis is placed on operations to restore existing industrial c.apacitv to a sound footing, on appropriate training for personnel arm, as always, on small and medium-sized enterprises.

The objectives of the Centre for the Development of Industry (CnI)* have been more clearly defined and its supervision streamlined. A Governing hoard has been set up for the Centre, witn the task of taking decisions on guidelines and major administrative issues.

11. Rneroy and mining

The objectives of cooperation in the field of energy have been more cl earlv set out, nooblv as regards the provision of assistance for the evaluation of resources and energy demand, enercy savings and efforts to find substitutes for fuelwoort, and the rehabi1itation of production, transport, transmission and distribution infrastructore.

12. Fisheries

This area of cooperation has expanded considerablv.

In the new Chapter on fisheries

i. emphasis is placed on Community assistance for improved ACP management of the fishery resources of their FF7s;

ii. the need to promote the conservation and optimum utilization of the living rsources is stressed;

iii. the role played by the Community's fishing fleets operating legally in ACP waters is acknowledod;

iv. the ACP States' readiness to negotiate fishery agreements with the Community on mutually satisfactory terns and based on the principle of non-discrimination is affirmed;

v. the general guidelines governing the compensation to be accorded hy the• Community in exchange for fishing rights granted to its fleets are laid

do’ /n.

* note the chance of name in Fnolish


I'. -

13. Shipping

Particular importance is attached on both FFC and AfP sides to the Cede of Conduct for Liner Conferences; there is an invitation to the FFC Member States and ACP States to accede to or ratify the relevant Convention as soon as possible.

The EFC recognizes the ACP States' aspirations to participate to a greater degree in national shipping * services including hulk shipping, on an economic, commercial and competitive basis.

Aid.is provided via financial and technical cooperation to improve the ACP States' shipping and foster contacts with the Comuni tv business world.

There is provision for cooperation in the matter of the safety of ships and crews and of pollution control.

Consultation mechanism has been set up to ensure that the rules agreed are implemented effectively.

14. Cultural and social cooperation *

This is an innovation in Community development cooperation which reflects important progress in our relations with the ACP States with a view to the more self-reliant development of those States, focused on nan and rooted in the culture of each people.

Through cooperation, support will be given to tne ACP States' policies and measures in order to enhance their human resources, increase their own creative capacities and promote their cultural identities. Criteria have also been laid down to ensure that the cultural and social dimension is taken into account more fully in projects and programmes in the various areas of cooneration.

hotc also the declaration on ACP students and migrant workers in the Community: there now exists a right to refer matters to the ACP-FFC Council.

15. Institut ions

An innovation is the new pariianentary body called the Joint Assembly; the guidlno role of the Council of Ministers is reinforced; improved mechanisms for consulting and interpreting the Convention have been established.

lr>. regional cooneration

Hero it was a Question mainly of consol idatinn and improving this relatively now cooperation instrument, the importance anO utility of which was recognized bv both sides. And so Lome III places stress on the intensification and rei nforcenent of regional cooperation, calling for collective, self-reliant development at regional level and intra-ACP cooperation. A clearer definition of the character!sties of regional operations and cl ari f ications renaming financing reguests should facilitate the practical application of this instrument.

tlBsn] AUSTRALIAN INTERNATIONAL LAW NEWS I

Text of G5 Communique * January, 1985.

The Ministers of Finance and Central Bank Governors of France, Germany, Japan, the UK and the US announced today that they had met to discuss a range of international economic and financial issues. The meeting, part of a regular series of consultationsamong these countries on economic and financial matters of mutual interest, also involved IMF Managing Director,Jacques de Larosiere, for a discussion of the economic policies and prospects of the major industrial countries.

The Ministers and Governors noting the recent developments in the exchange markets, expressed their commitment to work towardgreater exchange market stability.

Toward this end the Ministers and Governors:

1. reaffirmed their commitment to pursue monetary andfiscal policies that promote a convergence of economicperformance at non-inflationary steady growth;

2. Stressed the importance of removing structural rigiditiesin their economies to achieving the objectives ofnon-inflationary steady growth, and exchange market stability, and expressed their intent to intensify efforts in this area;

3. And in light of recent developments in foreign exchange markets, reaffirmed the commitment made at the Williamsburg Summit to undertake co-ordinated intervention in the markets as necessary.

The Ministers and Governors believee that this approach will provide a solid framework for sustaining recovery, reducing inflation, increasing employment and achieving great or exchange stability.

* (The text of this communique was provided by The Treasury Press Office,H.M. Treasury, London).


UNITED NATIONS CEOTKE ON TRANSNATIONAL CORPORATIONS: TRANSBORDER DATA FIOWS:TRANSNATIONAL CORPORATIONS AND REMOTE SENSING DATA*

109. In the early 197Os, the (Jhited States launched the first earth-orbiting satellite dedicated solely to the remote sensing of the earth from space. Such a satellite provides information about the location, quantity and quality of earth resources on a frequent, repetitive basis. Remote sensing represents a unique form of transborder data flows because it not only permits the transmission of data between countries but also makes it possible to generate new data about particular countries and to disseminate such data to other countries.

110. As commonly applied, the term "remote sensing" refers to the examination, study, exploration or monitoring of the earth and its resources "remotely", or from a distance. Such studies may be conducted using a wide variety of data acquired from aircraft or orbital space platforms. Examples of such data are aerial photographs, multi spectral scanner data and radar. The principal advantage of remote-sensing technology lies in its ability to collect data rapidly over large areas. This is particularly evident for data collected by satellite which provide a means of repetitive collection at low marginal cost. (For most countries, the alternative is to use expensive sophisticated reconnaissance air planes.) Ebr purposes of interpretation, the raw data have to be processed either into photographic images or for computer-assisted analysis. The former information is available at relatively low cost and photo-interpretation is sufficient for a variety of purposes. On the other hand, computer-assisted interpretation - which is needed not only for crop forecasts produced by complicated crop growth models but often also for in-depth analyses of geological structures potentially containing oil, gas or mineral deposits - requires sophisticated processing technologies that are not yet widely available.

111. At present, remote-sensing data are normally used only in conjunction with v other data. But as the technology advances, remote sensing is likely to become an increasingly important source of information. This will become particularly evident when resolution capabilities - the ability to distinguish details in spatial, spectral or tenporal bands - and repetitive time - the time a satellite needs to come back to its original starting point (currently 16 days) - are substantially improved. Considerable progress regarding the former was made with the launching of Landsat-4 in July 198 2, as a result of which spatial resolution has been increased to 30m (as compared to 7 0-90m for land sat-3) , making the identification of much smaller objects possible. EVirther advances in this area may result from military applications of satellites which lead civilian applications by several years. Military satellites are already reported to have a spatial resolution capability well beyond that required to identify the make of an automobile and possibly approaching the ability to read newspaper headlines. To the extent that advanced satellite technology and advanced digital analysis techniques become available, remote-sen sing data will increase in importance for the acquisition of a wide range of resource information. The ability to obtain, understand and utilize remote-sen sing technology and interpretation capabilities is, therefore, becoming an important prerequisite for efficient resource management and resource negotiations.

112. While the United States has pioneered remote sensing, a number of other countries - including developing ones - are operating remote-sensing satellites of their own or are building or designing such satellites. It is expected that, by the end of the present decade, six or more remote-sensing satellite systems will be operated by national or regional agencies. At the present time, however, the only source of large-scale, publicly available remote-sen sing data is the United States land sat programme, which sells its data world-wide, especially through the EROS Data Center. Sales by the Center have grown considerably over the past 10 years, with developed market, economies being by far the largest users of remote-sensing data. Sales of such data on developing countries continue to be considerably above the volume of remote-sensing data bought by. developing countries.

113. In the United States of America, the most inportant user groups are corporations and governmental agencies. Average sales of photographic frames to corporations in the United States between 1979/80 and 1981/82 accounted for41 per cent of the total, and those to governmental agencies, for 35 per cent. The same three-year average for computer compatible tapes was 53 per cent and 36 per cent, respectively. Limited information indicates that in other countries corporations are also among the principal users.

* (This is the summary and conclusions of a report from the United Nations Centre on Transnational Corporations ST/CTC/51.)


114. An impression of the costs of using re mote-sensing data can be obtained from the expenditures of United States transnational oil corporations, the principal users of such data. A small oil conpany, which may merely be interested in a limited area - one state or geological basin, for instance - may employ one geologist (possibly only part-time) for interpretation purposes, buy 5 to 20 images a year and use a service bureau to do computer-assisted analysis. (The acquisition of in-house image-processing equipment requires an initial investment of between $300,000 and $2 million.) A medium-sized oil corporation may employ about four professionals for image interpretation but may still contract out most of its processing work to a computer service bureau. Some large oil corporations, finally, may enploy 10 to 20 professionals to work with remote-sensing data, invest annually up to $200 ,000 for the acquisition of data alone and usually have their own^ processing capabilities. As these data suggest:, remote-sensing capabilities may well within the reach of many developing countries.

115*. Remote-sensing data are used for a broad range of purposes and can be of particular importance for the management of a country's resources. A number of cases can be documented in which remote-sensing data played a role - together with data from other sources - in the exploration and development of petroleum, natural gas and mineral deposits and the management of agricultural, forest and water resources. The United States Department of Agriculture, for instance, uses remote-sensing data routinely as one input in the preparation of its highly accurate crop forecasts. In all these areas, the usefulness of remote-sen sing data as an information source can be expected to increase as the underlying technology improve s.

116. The prospecting and exploration of mineral and non-mineral resources, as well as the management of agricultural resources, are also the principal areas in which re mote-sensing data are actually or potentially of greatest value to transnational corporations.

117. Remote-sensing data from satellites are, at present, most useful for reconnaissance surveys carried out for prospecting. These surveys are principally used for the preparation of mineral and oil exploration projects to generate data for determining potentially resource-rich smaller areas which are then explored in greater detail with the help of other resource survey techniques. Remote-sensing data are, therefore, of particular importance at the outset of a resource-development programme, especially in negotiations between transnational corporations and developing countries for exploration rights. If transn.itlonai corporations have better reconnaissance data than developing countries, they are in a position to bargain more effectively for initial exploration privileges. In addition, to the extent that remote-sensing data contribute to a better monitoring of crop developments and improved yield forecasts, the ability to utilize these data may, for instance, make it possible for users to position themselves effectively in anticipation of market developments, through spot and forward transactions in commodities. Many cases can be documented in which transnational corporations have successfully used remote-sensing data, together with other data, in a wide range of projects.

118. Therefore, to the extent that satellite data are an increasingly important information source, and to the extent that resource information influences resource negotiations, remote-sensing data are likely to play a growing role in future resource negotiations for those who can utilize these data effectively. Since it is almost certain that the major transnational corporations will stay abreast of technological developments and applications in this area and increase their use of remote-sensing data, developing countries that have difficulties in utilizing such data effectively may find themselves at a potential disadvantage in resource negotiations. Thus, the ability to utilize remote-sensing data and the related satellite technology and interpretation techniques can become important objectives for developing countries.119. To achieve these objectives, a number of obstacles have to be overcame. Most important among them are institutional, technological and human constraints. To overcome these constraints, countries have to develop an effective institutional and technological infrastructure pertaining to remote sensing, familiarize decision-makers and scientists with the advantages and disadvantages ofremote-sensing technology and train personnel in the use of this technology. The example of such countries as Egypt, rIndia and Thailand show that national . vremote-sensing capabilities can be established successfully.


120. Vihat emerges from this study is that, at present, satellite remote sensing is one tool among several for collecting information for resource exploration, development and management - both by transnational corporations and developing countries. Technological developments are very likely to make this tool increasingly powerful so that satellite-acquired resource information will most probably grow in usefulness in the years ahead. To the extent that resource information plays a role in the outcome of negotiations between transnational corporations and developing countries, the creation and transborder flow of satellite data will, therefore, become increasingly important in these negotiations. Transnational corporations are building and expanding their capabilities for sophisticated processing and routine applications of remote-sensing data in order to be in a position to utilize fully the advantages offered by the underlying technologies.

121. Whether or not an increasing numbor of developing countries will also develop capabilitieu of their own to uao satellite remote-kcnulng data depends on their analysis of competing national priorities, alternative methods of resource information acquisition, the future commercial availability of such data and their assessment of the political and technical future of remote-sensing satellites. If they should decide to establish their own capabilities - as a number of developing countries have successfully done - a firm commitment is needed to create an appropriate organizational infrastructure, develop a minimum technological base and conduct the necessary training. Whether or not this decision is taken, it appears that developing countries, in one manner or another, must take into account the increasing importance of remote-sensing data for building and maintaining an adequate resource information base. If they do not, equality in resource negotiations between developing countries and transnational corporations may be elusive.


CANADA *

THE INVESTMENT CANADA BILL

Key features of the New Bill

The Investment Canada Bill recognizes that investment is central to economic growth and new employment opportunities and the key to technological advancement. For this reason, investment in Canada by both Canadians and non-Canadians is assumed to be likely to bring benefit to Canada.

The Bill establishes a new Agency, Investment Canada, with a mandate to encourage and facilitate investment. At the same time it provides for a review of large acquisitions in Canada by non-Canadians to ensure that the assumption of benefit is justified. For small acquisitions and the establishment of new businesses, non-Canadian investors need only notify theAgency of their investment intentions.

Responsibilities of the Minister and Agency

Part I of the Bill (Sections 4-9) describes the responsibilities of the Minister, and thereby of the Agency, to carry out activities that encourage investment and ensure benefit. The Minister will* •.

- encourage business investment by appropriate means; . v

- assist Canadian businesses to exploit opportunities for investment and technological advancement;

- carry out research and analysis pertaining to domestic and international investment;

- provide investment information services and other investment services to facilitate economic growth in Canada;

- assist in the development of industrial and economic policies that affect investment in Canada;

- ensure that the notification and the review of investments are carried out as required by legislation.

The Bill envisages that the Minister will seek the co-operation of other federal Government departments, the provinces and the private sector with a view to improving the investment climate and providing services that will assist Canadians to exploit new investment opportunities.

Specific exemptions from both notification and review.

Some transactions by non-Canadians are not intended to be affected by the legislation. These are described at an early stage in the Bill (Part II) so that potential investors can readily identify them. They include*

- certain temporary or involuntary acquisitions of control of aCanadian business;

- by security dealers or traders or venture capitalists in the normal course of their business;

- as a result of realization on security granted for a loan or tofacilitate the financing of the Canadian business;

- by inheritance;

- the acquisition of control of a Canadian business by reason of an amalgamation, a merger, a consolidation or corporate reorganization where the ultimate control of the business remains unchanged;

- acquisition of control of a business of a crown corporation or of a provincial or municipal corporation;

- investments regulated under the Bank Act;

. - certain real estate inv stments; ' ’investments by life insuranc compani s for th ben fit of theirCanadian policyholders.


Definitions, Rules and Presumptions

Section 3 provides definitions and Part V (Sections 26 - 32) provides rules and presumptions to assist in interpreting the remaining sections of the Bill relating to the notification and review procedures for investments by non-Canadians. They are intended to provide greater certainty as to the applicability of the legislation. They include*

"business" Includes any undertaking or enterprise capable of generating revenue and carried on in anticipation of profit;

"Canadian* means

(a) a Canadian citizen or permanent resident within the meaning of the Immigration Act, 1976, except a permanent resident who has not taken out Canadian citizenship within one year of the date of eligibility to do so;

(b) a Canadian government, whether federal, provincial or local, or an agency of such governments; or

(c) a Canadian-controlled entity (corporation, partnership, trust or joint venture) or one that is deemed to be a Canadian.

Rules for determining whether a corporation or ■other entity is Canadian or non-Canadian

- If one Canadian or two or more Canadian members of a voting group own a majority of the voting interests of an entity, it is Canadian-controlled;

- If one non-Canadian or two or more non-Canadian members of a voting group own a majority of the voting interests of an entity, it is not Canadian-controlled;

- If Canadians own a majority of the voting interests of an entity it is a Canadian-controlled entity if it can be established that

• the entity is not in fact controlled by a non-Canadian or by amajority-non-Canadian voting group;

- If two persons, one of whom is a non-Canadian, own equally all of the voting shares of a corporation, the corporation is not Canadian-controlled;

- If less than a majority of the voting interests of an entity are owned by Canadians, it is presumed not to be a Canadian-controlled entity unless it can be established that;

- the entity is in fact controlled by Canadians through the ownership of voting interests by a Canadian or by amajority-Canadian voting group; or

- the entity is not controlled in fact by any shareholder or voting group and that 2/3 of the members of the board of directors of a corporation or, in the case of a limited partnership, 2/3 of the general partners are Canadians.

In the above rules a Canadian or non-Canadian includes only individuals, governments or their agencies or corporations.

- In the case of a corporation incorporated in Canada whose votingshares are publicly traded in the open market, if at least 2/3 of the voting shares are owned by individual Canadians, Canadian corporations that are wholly-owned, directly or indirectly, by individual Canadians or a combination of those individuals and corporations, the corporation is deemed to be a Canadian, irrespective of de facto control. Voting shares owned by wholly-owned crown corporations or agencies would "count" towards the 2/3 share.


The Bill provides for the Minister, on the basis of information submitted by an individual or entity, to give a written opinion as to whether or not that individual or entity is a Canadian.

•non-Canadian" means an individual, a government or government agency or an entity that is not a Canadian;

"Canadian business" means a business carried on in Canada and having;

(a) a place of business in Canada(b) an individual or individuals in Canada employed or self-employed

in connection with the business, and(c) assets in Canada used in carrying on the business;

"new Canadian business", in relation to a non-Canadian, means a business not previously carried on in Canada by the non-Canadian and that, at the time of its establishment

(a) is unrelated to any other business being carried on in„ Canada by that non-Canadian; or .

>(b) is related to another business being carried on in Canada by that

' non-Canadian but falls within a specific type of businessactivity related to Canada's cultural heritage or national identity that has been prescribed by the regulations.

"Canada" includes the territorial sea of Canada as determined in accordance with the Territorial Sea and Fishing Zones Act, its seabed and subsoil and all other areas beyond the territorial sea of Canada where Canada has or claims jurisdiction;

■joint venture" means an association of two or more persons or entities, where the relationship among those associated persons or entities does not, under the laws in force in Canada, constitute a corporation, a partnership or a trust and where all the undivided ownership interests in the assets of the Canadian business to which this Bill applies are or will be owned by all the persons or entities that are so associated;

■voting share" means a share in the capital of a corporation to which is attached

(a) a voting right ordinarily exercisable at meetings of shareholders of the corporation and

(b) a right to receive a share of the profits or to share in the assets of the corporation on dissolution or both;

•voting interest", with respect to

(a) a corporation with share capital, means a voting share;

(b) a corporation without share capital, means an ownership interest in the assets that entitles the owner to rights similar to those enjoyed by the owner of a voting share; and

(c) a partnership, trust or joint venture, means an ownership interest in the assets that entitles the owner to receive a share of the profits and to share in the assets on dissolution.

■voting group" means two or more persons who are associated with respect to the exercise of rights attached to voting interests in an entity by contract, business arrangement, personal relationship, common control in fact, or otherwise, in such a manner that they would ordinarily be expected to act together on a continuing basis with respect to the exercise of those rights;

[j98S ] AUSTRALIAN INTERNATIONAL LAW NEWS 439

Acquisition of Control Rules (Sections 28 - 31)

For the purposes of the Bill an acquisition is defined as theacquisition of control of a Canadian business by

- acquisition of all or substantially all of the assets used incarrying on a Canadian business

- acquisition of

- voting shares of a corporation incorporated in Canada carrying on a Canadian business

- voting interests of an entity, other than a corporation, carrying on a Canadian business

- voting interests of an entity that controls, directly or indirectly, another entity carrying on a Canadian business

where the following presumptions apply*

- the acquisition of a majority of the voting interests of an entity (including a majority of the voting shares or undivided ownership interests in the voting shares of a corporation) is deemed to be acquisition of control;

- the acquisition of less than a majority but more than 1/3 of the voting shares (or an equivalent undivided ownership interest in the voting shares) of a corporation is presumed to be acquisition of control unless it can be established that control in fact of the corporation, through the ownership of its voting shares or by its board of directors, is unchanged;

- the acquisition of less than a 1/3 of the voting shares of a corporation or less than a majority of the voting interests of any other entity is deemed not to be acquisition of control.

The Bill provides additional rules and presumptions concerning direct and indirect control (Subsection 28(2)), sequential transactions (Section 29) contractual rights to acquire voting interests or assets and multiple or fractional voting rights (Section 30), and application to part of a business or a business partly carried on in Canada (Section 31).

Notification of Investments

Part III (Sections 11 - 13) identifies those acquisitions of control of Canadian businesses and investments to establish new businesses in Canada by non-Canadians which are subject to notification.

Investments requiring only notification are all new Canadian businesses (regardless of size), all direct acquisitions of Canadian . vbusinesses with .insets under $‘)M, «nd most indirect acquisitions of Canadian businesses with assets under $5UM. Indirect acquisitions of Canadian businesses whose assets represent more than 50 percent of the assets involved in the total international transaction are subject to the $5M threshold rather than the $bUM threshold which applies to all other indirect acquisitions.

Note:

In the above and in the following section concerning review, a direct acquisition is the acquisition of control of a Canadian business, either through acquisition of its voting interests or assets or through the acquisition of control of its Canadian parent in Canada. An indirect acquisition is the acquisition of control of a Canadian business through the acquisition of control of its parent outside Canada.

Notification Procedure

A brief statement of information about the investment, as described in the regulations, will be filed by the investor with the Agency at any time up to 30 days following the investment.


Generally, no further information will be required about notified inveatmente since it is the intention of the legislation that these will proceed without government intervention.

However, provision is made for the identification in regulations of specific types of business activity that are related to Canada's cultural heritage or national identity, such as the publication and/or distribution of books and periodicals and the production and distribution of films. Only for these identified activities may review be required in exceptional cases. By thus confining the use of the reserve review power to types of business activity that are precisely defined, investors in all other activities are assured that their notified investments cannot be reviewed. Moreover, a notified investment of a type that has been identified in the regulations will be reviewed only if the Minister considers the public interest to warrant review and if the Governor-in-Council issues an Order to that effect within 21 days of the date when a completed notification of the investment was filed. If such an order is not made within that period, the investment is deemed not to be reviewable.

Investments subject to ReviewPart IV (Sections 14 - 25) describes the investments that are subject

to review and the procedures to be followed.

Investments requiring review are all direct acquisitions of Canadiaq businesses with assets of $5M or fnore, all indirect acquisitions of Canadian businesses with assets of $5UM or more, and indirect acquisitions oi Canadian businesses with assets between $5M and $5UM which represent more than 5U percent of the value of the total international transaction. In addition specific acquisitions or new businesses in designated types of business activities related to Canada's cultural heritage or national identity, which would normally only be notifiable, could be reviewed if the Governor in Council had authorized it in the public interest.

Review procedure

If an investment is reviewable, an application for review in the form prescribed by regulations is to be filed with the Agency prior to the investment taking place (or, in the case of an indirect acquisition within 30 days after the investment).

The Agency will then submit the application to the Minister, together with any other information or written undertakings given by the inventor and any repretivntalIon* submitted to the Agency by a province that is likely to be significantly affected by the investment.

The Minister will then determine whether the investment is likely to be of net benefit to Canada, taking into account the information provided and having regard to the following factors of assessment, where they are relevant*

Factors of Assessmenta) The effect of the investment on the level and nature of economic

activity in Canada, including the effect on employment, on resource processing, on the utilization of parts, components and services produced in Canada, and on exports from Canada;

b) The degree and significance of participation by Canadians in the Canadian business and in any industry in Canada of which it forms a part;

c) The effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety in Canada;

d) The effect of the investment on competition within any industry or industries in Canada;

e) The compatibility of the investment with national industrial,economic and cultural policies, taking into consideration industrial, economic and cultural policy objectives enunciated by the government or legislature of any province likely to be significantly affected b^ the investment; .

f) The contribution of the investment to Canada's ability to compete in world markets.


To ensure prompt review and decision the Act sets certain time limits for the Agency and the Minister.

Within 45 days after a complete application has been received the Minister must notify the investor that (a) he is satisfied that the investment is likely to be of net benefit to Canada, or (b) he is unable to complete his review, in which case he shall have 3U further days to complete his review (unless the applicant agrees to a longer period), or (c) he is not satisfied that the investment is likely to be of net benefit to Canada.

If 45 days have elapsed from completion date without such a notice, or if 30 further days (or the number of further days agreed) have elapsed after notice that the Minister is unable to complete his review and no decision has been taken, then the Minister is deemed to be satisfied that the investment is likely to be of net benefit to Canada.

Where the Minister has advised the applicant that he is not satisfied that the investment is likely to be of net benefit to. Canada, the applicant has the right to make representations and submit undertakings within 30 days of the date of the notice (or any further period that is agreed between the applicant and the Minister). On the expiration of the 30-day period (or agreed extension) the Minister must quickly notify the applicant (a) that he is now satisfied that the investment is likely to be of net benefit to Canada or (b) confirming that he is not satisfied that the investment is likely to be of net benefit to Canada. In the latter case the applicant may not proceed with the investment or, if the investment has already been implemented, must relinquish control of the Canadian business.

Regulations (Section 35)Regulations may be issued by the Governor-in-Council as provided in

the Bill or as required to carry out the purposes and provisions of the Bill, but regulations prescribing business activities related to Canada's cultural heritage or national identity shall be laid before Parliament as quickly as possible after they are made and shall not come into force until 60 days after they are made (except those that are prescribed at the time the Act comes into effect).

Confidentiality (Section 36) ^

All information that is obtained in the course of the administration of the proposed Act is considered to be confidential.

Opinions, Guidelines and Interpretation Notes (Section 37 & 38)

The Bill authorizes the Minister to give written opinions, binding on the Minister, on the application of the Act or regulations to the person seeking the opinion and the Minister may delegate the authority to give opinions to the Agency or a designated official. The Bill also authorizes the Minister to issue guidelines and interpretation notes with respect to the application and administration of any provision of the Bill or the regulations.

Penaltion (Part Vil - Sections 39 - 43)The proponed Act provider, lor civil penalties tor non-compliance with

any provision «*xr«pt blench of confidentiality or provision of false information, for which there are criminal penalties.

Report to Parliament (Part VIII - Section 44)The Bill requires the Minister to prepare each year a report to

Parliament on operations under the Act within six months of the end of the fiscal year.

LJ9H5 J AUSTRALIAN INTERNATIONAL LAW NEWS 442

Transitional, ConsequentialAmendments and Commencement (Part IX - Sections 45 - 52)

The Foreign Investment Review Act is repealed upon the coming into force of the Investment Canada Act.

. An investment notice that had been filed under the FIR Act will bedeemed to be a complete notice or a complete application for review under the Investment Canada Act as of the day that Act comes into force. Terms and conditions of investments decided under the FIR Act will remain enforceable, and any legal proceedings commenced under that Act may proceed, under the Investment Canada Act.

Provisions in other Acts that relate to the Foreign Investment Review Act are amended in consequence of the repeal of that Act.

The Investment Canada Act will come into force on a day fixed by proclamation.

* (This document was provided by the High Commission of Canada Canberra). ’

PAKISTAN

PAKISTAN GOVERNMENT DECIDES TO ELIMINATE I tvTEkivST. *The Pakistan Government has decided to eliminate interest

from the entire banking structure of the economy. Addressing a Press Conference on the introduction of interest free financing by the banks the Finance Minister emphasised that the banks under the nov; system would not become welfare or uhari ty institutions nor would they be converted into commercial enterprises. He said they would continue to serve as an important link between saving and investment activities, he added. He said for any bank it would be most important than before to ensure that within the parameters of Islamic principles, the capital is Invested for productive purposes. He said, the banks would encourage saving by providing a good return to their depositors and shareholders beside helping a more balanced development of the economy. The Finance Minister said that hy the end of the current financial year the operations of all banks and financial institutions would be brought in line with the imperatives of Shariah. However, he gave assurance that all existing interest based commitments will be honoured by the banks and their clients mit.il they are discharged. He said transar t i< ins invn lying inPu'msi, with lonsi gn govc.nuncnl s fm: me lug ag* MieinS and j 11 In ri ia l.i.uiia 1 1 trial ic Lai ins tl tu t.i.on;: will continue and commitments will be observed until alternative Interest free arrangement can be worked out by mutual agreement.

president emphasised the need for not only acquiring latent technology but also the capability of its utilisation to give Pakistan as strong an industrial base as its agricultural base.He urged the industrialists in the country to pay special attention to research and development to help speed up the economic progress. The President said that the government was giving all possible facilities to the private sector and there was no intention to nationalise any industry. The climate lor the private sector was never so conductive as it was today. He pointed out that 8054 of the sixth-five year plan’s industrial outlay of 82 billion rupees had gone to the private sector.

* (Extract frem Pakistan News, February 1985, Embassy of Pakistan, Canberra).


UNFAIR FOREIGN TRADE PRACTICES

Stealing American Intellectual Property: imitation is not flattery (extract of a report by the Subcamuittee on Oversight and Investigations of the Cornrittee on Energy and Commerce, US House of Representatives, February 1984).

UNFAIR FOREIGN TRADE PRACTICES

Stealing American Intellectual Property: Imitation Is Not Flattery

INTRODUCTION AND SUMMARY

Each day, U.S. firms are seeing their valuable patents, copyrights and trademarks stolen, ignored or otherwise misused. This rapidly growing problem seriously threatens the health and safety of consumers, costs untold numbers of Americans jobs, and undermines the ability of American businesses to compete fairly and effectively in both domestic and international markets. The theft of these intellectual property rights takes different forms, but the net injury to American industry is enormous.

Commercial counterfeiting has spread to an amazingly wide range of products including drugs, automobile and aircraft parts, medical devices, chemicals, computers and personal care items. The variety of fake goods is limited only by the imagination of the counterfeiters. Some consumers have been killed or injured because of substandard counterfeits\ many others have been plagued with inferior merchandise. Unless effective action is taken against counterfeiters, more injuries—both physical and economic— will surely result.

The direct loss in sales to American companies from counterfeit merchandise runs into the tens of billions of dollars. The automobile parts industry alone estimates that it suffers $3 billion worth of damage annually.l One study by the Commission of the

1 "Impact of Unfair Trade Practices on Interstate Commerce," Hearings before the Subcommittee on Oversight and Investigations of the Committee on Energy

(Footnote continued) (l)(l)


2

European Community estimated that trade in pirated goods now accounts for about two percent of the world total—an astounding figure.2 Whatever the precise amount, the cost is huge and growing rapidly.

Counterfeiting includes services as well as goods. The American Automobile Association recently informed the Subcommittee that a Taiwanese organization, the Allied Automobile Association, has copied the logo as well as the illustrations in the advertising brochure of the California State Automobile Association. The Taiwanese firm also reportedly claims to be affiliated with the California auto club, an alliance which does not, in fact, exist.3

Although violating U.S. patents, trademarks or copyrights, many counterfeit products manufactured in foreign countries never reach the U.S. market. It is difficult enough for a U.S. company whose product is being imitated to stop sales in the United States. In cases of foreign market sales, however, it is practically impossible for American firms to stop commercial pirates. Such laws as may exist to protect intellectual property rights in developing nations, where most of the activity takes place, are usually inadequate. Moreover, enforcement is unaggressive or non-existent, especially against a local company. The result is that American companies lose billions of dollars of sales in both the foreign and U.S. domestic markets. The U.S. balance of trade, which sustained a deficit of more than $60 billion in 1983, as well as the balance sheets of the victimized companies, suffers accordingly. Even worse, the counterfeit products are typically substandard and their failure to perform tarnishes the reputation of the American manu-

1(continued)and Commerce, 98th Congress, 1st Session, (hereinafter cited as Hearings) August 2, 1983, Statement of Linda Hoffman.

2 New York Times. October 10, 1983.3 Letter to the Subcommittee staff from Ms. Cynthia

Skiff, Legislative Representative, American Automobile Association, January 3, 1984.


3

facturer.Counterfeiters unfairly exploit the capital in

vested by a company in the research, development and marketing of a product. By stealing some or all of the market for a successful product, the pirates can prevent the company from recouping this investment. For a small company, this can be fatal. Over the long term, even for a large company, the ability to generate the investment capital necessary to develop new products and remain competitive in world markets will be affected. Thus, counterfeiters steal existing and future jobs from American workers.

A country such as the United States that depends on private investment capital for technological progress and economic growth cannot prosper in a world where counterfeiters operate unchecked. Direct and forceful action must be taken to protect American consumers and American corporations from the devastating, unfair and hazardous effects of commercial counterfeiting and related violations of intellectual property rights.


4

II. FINDINGSThe Subcommittee makes the following findings:

Countries in Asia, Africa and South America produce a vast range and growing volume of counterfeit products that violate patents, copyrights and trademarks held by American companies# In some countries, counterfeiting appears to have become the de. facto national industrial development strategy.Taiwan, South Korea, Hong Kong, Singapore, Thailand, the Philippines, Indonesia, Brazil, Columbia, Mexico, and Nigeria are major sources of commercial counterfeiting.The sale and use of bogus products, which are usually substandard and often dangerous, cost Americans many thousands of jobs and threatens our health, safety and economic well-being.The willful violation of American intellectual property rights has cost U.S. companies many billions of dollars of sales in world markets. This contributes to our huge balance of payments deficit and negatively affects the income of many American companies •The substandard performance of counterfeit products tarnishes the reputation of the legitimate manufacturer and reduces the appeal and good will of these and other American goods wherever they are sold. Counterfeiters unfairly exploit the capital invested by an American company in the research, development and marketing of a product. By stealing some or all of the market for a successful product, the pirates can prevent that company from recouping its investment. For a small company, this can be fatal. Over the long term, even for a large company, the ability to generate the investment capital necessary to develop new products and remain competitive in world markets is impaired.U.S. laws protecting intellectual property rights are too weak to deter the increasing flow of counterfeit products into markets here and abroad. For example, there are no generic criminal penalties for trademark or patent infringement.Significant changes are needed in criminal and civil

[llJU5] AUSTRALIAN INTERNATIONAL LAW NEWS 448

5

statutes relating to patents, copyrights, trademarks and tradedress. Penalties must be increased and the coverage of the protection under these laws should be expanded and modernized.

° Despite the best efforts of its competent and dedicated personnel, the U.S. Customs Service has neither the people nor the resources to stop the flood of counterfeit products.

° Many counterfeit American products are manufactured in one foreign country and sold in another. It is very difficult for a U.S. company to stop this practice. Such laws as exist to protect intellectual property rights in developing nations, where most of the activity takes place, are usually inadequate. Moreover, enforcement is unaggressive or nonexistent, especially against a local company.

° Elements of organized crime are evidently involved in the distribution and sale of counterfeit goods, especially in the apparel and consumer electronic industries. Given the high profit in such activity, the role of organized crime is expected to increase.

° Some progress has been made in bilateral and multilateral efforts to increase the protection afforded intellectual property rights and to encourage foreign governments to crack down on counterfeiters. However, existing international agreements, such as the Universal Copyright Convention or the 1883 Paris Convention for the Protection of Industrial Property, are antiquated and ineffective. In sum, there is no meaningful or even consistent system of protection for intellectual property rights in world markets.

° A country such as the United States that depends on private investment capital for technological progress and economic growth cannot prosper in a world where counterfeiters operate unchecked. Direct and forceful action must be taken to protect American

f consumers and American corporations from the devastating, unfair and hazardous effects of commercial counterfeiting and related violations of intellectual property rights.


6

III. RECOMMENDATIONS

On the basis of the record developed in five days of public hearings, over a thousand pages of testimony and exhibits, and months of staff investigations, the Subcommittee makes the following recommendations:

1. The Congress should pass the Trademark Counterfeiting Act of 1983, H.R. 2447, which is now pending before the Judiciary Committee. The bill would provide badly needed criminal sanction? as well as increased civil penalties against manufacturers, distributors or retailers that intentionally traffic in products with counterfeit trademarks.

2. The Congress should strongly consider amending Title V of the Trade Act of 1974 to deny duty free treatment of imports under the Generalized Schedule of Preferences (GSP) to beneficiary developing countries that violate United States patents, copyrights or trademarks. In 1982, $8.2 billion worth of imports enjoyed duty free treatment in the U.S. under the GSP program. While the U.S. derives many benefits from the existence of GSP, including the availability of inexpensive consumer goods, foreign governments must recognize that preferential access to our markets will be contingent upon their willingness to minimize and eventually eradicate the parasitic counterfeiting elements of their domestic manufacturing sectors.

3. The Congress should pass legislation to increase the international competitiveness of United States industries by requiring reciprocal market opportunities in trade, including trade in services and investment. Such legislation should include explicit protection for the intellectual property rights of United States companies. In the first session of the 98th Congress, three bills sought to achieve this goal: H.R. 3804, the Interstate and Foreign Commerce Development Act; H.R. 1571, the Reciprocal Trade and Investment Act of 1983; and H.R. 2848, the Service Industries Commerce Development Act of 1983. The Committees on Energy and Commerce, Foreign Affairs, and Ways and Means sought to meld these related approaches into a single, effective legislative proposal. The Subcommittee hopes that this effort can


7

produce an integrated bill in the current session.The Subcommittee recognizes that the mere threat

of reciprocal sanctions by the United States in the area of intellectual property rights may not deter unfair trade practices. Inadequate enforcement of existing trade laws, including reciprocity provisions, has not prevented dumping nor effectively opened foreign markets for U.S. goods. The Subcommittee has not completed its investigation into the impact of illegal and unfair foreign trade practices on interstate commerce, and thus it reserves its recommendations on the changes necessary to make the reciprocity provisions in our trade laws truly effective. In any case, however, U.S. law should contain the explicit recognition that the failure to protect the trademark, tradedress, copyright and patent rights of American firms is cause for reciprocal action against the offending country.

4. The Congress should pass legislation greatly increasing the potential monetary penalty for the interstate transportation of stolen property. The current statute (18 U.S.C. 2314) provides only for a $10,000 fine. As the Subcommittee has clearly learned in reviewing Hitachi*s effort to bribe persons to steal the technical secrets behind IBM's largest new computer, a fine of this magnitude is no deterrent at all. Hitachi paid $612,000 in bribes and had budgeted up to $1 million for the effort. Moreover, as part of its settlement with IBM, Hitachi paid $300 million in compensation. The statute should be amended to increase the maximum criminal penalty to at least a million dollars, and a civil penalty should be added at treble the value of the property and set at the discretion of the judge.

The Subcommittee is aware that H.R. 2151, the Comprehensive Crime Control Act of 1983, is pending before the Judiciary Committee. If passed, Title II of that legislation would raise the maximum fine for all felonies to $250,000 for individuals and $500,000 for organizations. But this may not provide the desired deterrent in cases such as that of Hitachi, where the market value of the technology is apparently in the hundreds of millions of dollars. The Subcommittee is also aware of Section 5 of Public Law 97291, the Victim and Witness Assistance Act, which


8

became effective on January 1, 1983. This section gives the court the option of ordering restitution to the victim of any Title 18 crime. Had it been enacted earlier, this provision could have been applied to Hitachi. However, the section is optional and appears virtually unused—the American Law Division of the Congressional Research Service could find only one case where section 5 restitution was sought. Moreover, in that case, the district court found the provision to be unconstitutional. The Subcommittee believes that large-scale industrial pspionage constitutes an ever-increasing threat to the economic security of the United States as a whole, and that it may be necessary to consider remedies beyond the scope of criminal law.

5. The Congress should pass H.R. 1028, the Semiconductor Chip Protection Act of 1983, now pending before the Judiciary Committee. This legislation would extend copyright law to protect the design of semiconductor chips.

6. The Congress should amend the patent law to provide for criminal penalties for the willful violation of such right8. The existing law in no way deters willful infringement of patent rights, especially by large foreign companies and particularly where the rights are held by small United States companies unable to afford the cost of protracted litigation.

7. The Congress should speed the operation of and greatly reduce the paperwork required by the International Trade Commission in ruling on petitions for exclusion orders under the Tariff Act of 1930. Current procedures are so lengthy and so complicated they effectively deny the relief Congress intended to all but the largest and most affluent companies.

At a minimum, Section 337 should be amended to eliminate the need to separately and specifically prove injury. The determination that a product has been counterfeited should, in itself, establish a presumption that injury has occurred. That section should also require that the U.S. Customs Service seize all goods where entry is attempted in violation of an exclusion order rather than permitting their reexportation.


98. Executive Branch agencies, such as the Office

of the IKS. Trade Representative, the Department of Commerce and the Department of State, should directly and forcefully confront governments of foreign nations in which significant counterfeiting of United States goods occurs. The agencies should use all available forms of moral suasion and economic leverage to convince foreign governments to crack down on commercial counterfeiting. One useful initiative would be for the United States to press hard at the General Agreement on Tariffs and Trade for the adoption of an effective international anti-counterfeiting code, which would give national customs services the authority to seize counterfeit goods and prosecute or assist the legitimate manufacturer in the prosecution of the violator.

9. The U.S. Customs Service should modernize its rules and procedures relating to the importation of certain electronic goods. Existing rules and discretionary rulings should be changed to require the seizure of all computers and related goods, such as video games, which violate copyrights registered with Customs. No reexport of commercial shipments of seized goods should be permitted. Further, the Customs Service should seize and destroy all components of computers and other goods which are clearly intended to be assembled into products which violate such copyrights.

Personal computers and video games are examples of products whose copyrights are imbedded in the operating software incorporated in silicon chips. Apple Computer Company and several American video game manufacturers have been the victims of foreign pirates that have copied their operational programs and sold or attempted to sell their counterfeit products in the U.S. The schemes employed to evade U.S. Customs seizure of counterfeits have become increasingly sophisticated. Customs regulations protecting U.S. copyrights should be updated to address these new problems, especially the issue of what constitutes contributory copyright infringement. Congress should act to clarify the law and mandate these changes should Customs fail to act promptly.

10. Congress should increase the criminal penalty


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for willful infringement of copyrights covering computer software. Currently only a misdemeanor, such violations should be made a felony. Infringements of this important segment of the electronics industry are widespread, both in the United States and abroad. Existing penalties are clearly not an adequate deterrent.

11. Customs should be given the authority to enforce U.S. patent rights. The Service already enforces patents in specific cases, such as the result of the patent holder obtaining an order from a U.S. District Court or the International Trade Commission. It is also possible to obtain both a patent and a copyright on components of the same merchandise (as in the case of the Apple II computer). At present, however, until and unless Apple obtains an exclusion order, Customs allows computers or printed circuit boards that infringe on Apple's patents to enter U.S. commerce.

12. The Congress should increase substantially the funds allocated to the enforcement effort by the Customs Service against counterfeit goods and other types of commercial fraud. The number of actual inspections of imported goods has been steadily declining while the volume of entries has been consistently increasing. Despite the best efforts of highly motivated and talented field personnel, the ability of Customs to stem the flow of counterfeit products, many of which are hazardous, is open to serious question. Since Customs collects nearly $20 for every dollar it spends, the taxpayers could only benefit from a strengthened enforcement program.

The Subcommittee will continue its inquiry and may make more explicit recommendations later. However, at a minimum, the appropriation for the U.S. Customs Service should be increased by $25 million. This would place its commercial fraud activities on a par with Operation Exodus, the program which controls the export of sophisticated technology susceptible to military applications. Commercial fraud activities, currently termed "Operation Tripwire" by the Customs Service, should include specialized teams of Customs agents, import specialists and, where appropriate, inspectors and other support personnel charged with


11detection and investigation of commercial customs fraud. The Customs Service should be required to assign experienced personnel to these teams and should not be permitted to use such assignments as a means of further reducing existing operations, particularly those performed by import specialists.

13. The Congress should seriously consider banning for a specified period of time the right to import goods or services into the U.S. by any foreign person convicted criminally of violating our trade laws. The ban would apply both to a company and its individual officers, who would not be allowed to escape the prohibition simply by forming a new company.

14. The Congress should consider other changes in the patent law. One logical modification would be a seventeen-year ban on the use of the technology by any company or person found guilty of willfully infringing a valid patent. Another problem that needs to be rectified is the current inability of a company to secure patent protection for the fruits of its research in the absence of a tangible product.

15. The Subcommittee and other appropriate bodies of Congress should continue to examine the problems of unfair and illegal foreign trade practices. Scrutiny of the adequacy of enforcement by the Executive Branch should continue and a further search for means to strengthen our laws to deter such practices should proceed as rapidly as possible. Intellectual property theft is only one of the many problems requiring changes in U.S. trade policy and law.


"UNESCO - THE NETHERLANDS, THE NORDIC POWERS, THE U.K., SINGAPOREAND AUSTRALIA -- -----

UNESCO - THE NETHERLANDS.

In our September issue, we published documents relevant to the notice of withdrawal from UNESCO given by the USA (1984) Australian I.L. News 424-438. In response to our enquiries, the Netherlands Charge d'Affaires, Mr L.L. Ramondt has confirmed that the Netherlands Government wrote a letter to Mr Amadou-Mahtar M'Bow, the Director General of UNESCO in which a certain number of proposals were put forward, that the Netherlands believe necessary to solve UNESCO's problems. This letter addresses itself to the following, desired reforms:

- better methods of evaluation;- less politicisation;- more transparent and lower budgets;- increase in the quality of UNESCO's staff;- more concentration of effort in the work programme;- warning against efforts to justify government influence

over the media by means of the 'New World Information and Communication Order';

- limitation of UNESCO's activities with regard to human rights to its own sphere of competance and less emphasis on collective human rights;

- more geographic decentralisation and more decisionmaking decentralisation in headquarters in Paris.

The Charge d'Affairs confirmed that if the reforms which are generally agreed to be necessary are not carried out, or not carried out sufficiently, and in particular if this should lead to the withdrawal of one or more of the member- states, the Netherlands Government will again have to review its position vis-a-vis the Organisation. It is therefore certainly not true that the Netherlands at this stage are considering quitting UNESCO. Speculations over such a step would be very much premature.

The letter in question has not been published.

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 456UNESCO LETTER ON BEHALF OF NORDIC DELEGATIONS TO THE DIRECTOR-GENERAL*

9th October 1984

Dear Director-General,

Acting upon instructions from our respective Governments we have the honour of conveying to you the joint message as follows:

As you are certainly aware, the Nordic Governments attach great importance to the United Nations and its specialized Agencies. Member States should and must do their utmost to strengthen the United Nations' system in order to promote constructive international cooperation. With regard to UNESCO, the Nordic Governments have continuously acted in this spirit 4n<^ will do so in the future.

The Nordic Governments have followed recent developments in UNESCO with concern. There is no doubt that the organization finds itself in a critical situation. The future of the organization depends on extensive reforms being undertaken.Such reforms are urgent and should be carried out within the framework of the present constitution of UNESCO.

We therefore welcomed the initiatives for reform taken by yourself as well as by the Executive Board. We appreciate the many constructive proposals made by the working groups set up by you and look forward to their early implementation.

The temporary committee set up by the Executive Board has made progress in its deliberations. Ideas that merit further consideration have been put forward and a number of useful proposals made which we trust will be accepted by the Board.In particular we find the proposals regarding programme elaboration and implementation, as well as personnel questions, of importance. It is, of course, vital that they be implemented without delay. We are confident that you will give your full cooperation to that effect. We are, moreover, convinced that the executive board will need to make appropriate arrangements to follow up the work of the temporary committee and to monitor implementation of the reforms.

These measures are significant steps towards a better and more effective UNESCO. Nevertheless, it is our considered opinion that even this is not sufficient for UNESCO to fulfil its mission adequately. To achieve this, concrete measures in the preparation of the next biennial programme and budget will be necessary. The Nordic Governments have at a number of general conferences stressed the importance of concentration of the programme and of devoting a larger proportion of the resources to the most pressing needs in the sphere of UNESCO's competence. We have noted with satisfaction that the temporary committee has suggested programme concentration e.g. by reducing the number of sub-programmes and of programme actions. However,

*The text of this letter was made available by Hiss ExcellencyE. Lyrtoft-Petersen, Danish Ambassador at Canberra.


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a simple regrouping will not be sufficient. Our joint reply to your consultation on the preparation of the next biennial programme and budget expressed our view in this respect in greater detail.

Your preliminary observations to the Board on the programme l for 1986-87 provide a useful basis for discussion. The

Executive Board should size the opportunity to give guidelines for the necessary concentration of the next programme. But we would like to underline the importance we attach to your role in initiating and achieving concentration. In this expectation we look forward to receiving your proposal for the next biennial programme.

Yours sincerely,

Karl-Frederik Hasle Wilhelm BreitensteinAmbassador AmbassadorPermanent Delegate of Denmark Permanent Delegate to Finland

Tomas A. Tomassen Georg KristiansenAmbassador AmbassadorPermanent Delegate of Iceland Permanent Delegate of Norway

Hans Colliander AmbassadorPermanent Delegate of Sweden


UNESCO - UNITED KINGDOM

Extract of speech b6 the Minister for Overseas Development, the Hon. Timothy Raison in the House of Commons, 27 November 1984 *

I turn for a moment to the question of UNESCO. My right Hon. and learned friend announced in his speech the Government's decision to give notice that we will leave UNESCO at the end of next year. He made it clear that we shall be prepared to reconsider our position towards the end of next year in the light of the results of next October's general conference in Sofia, if substantial progress has been made in the areas which we have specified as in need of reform.

___let me stress that we hope that sufficient reform will beachieved, and that we shall play our full part in working for it - just as we have done over the past year, thanks largely to very hard work by our officials. We have been in the van of the reform movement, and we shall remain there. But the option of giving notice has always been clearly there, ever since my noble friend the Baroness Young spelt it out in another place on 25 January this year.

Many arguments have been put for and against particular courses of action. Our judgement is that the way we have chosen represents the best way of keeping up the pressure, while establishing the ability to make a clean break in a year's time if that finally seems right.It is our own decision, and certainly not one taken on the coat-tails of the United States. They have not pressurised us in any way, nor indeed have they played a full part in the reform movement, as we intend to do.

One thing strikes me strongly about the public debate on UNESCO: the defenders of the way in which UNESCO has been working have been few indeed... everywhere the need for reform is accepted, whether it be reform in its programmes, its operation, its politicisation, its management, its financing or its attitude towards free speech.

Have we made enough progress in dealing with those deficiences? that is the question. There has been some progress, but there is still a long way to go. In many repsects the crunch will come when promises are or are not turned into decisions by the time of next year's general conference. That is why we shall make our final review of the position after that conference has taken place.

*(The text of the speech was provided by the British High Commission, Canberra).


UNESCO . - SINGAPORE * ,Singapore is withdrawing from UNESCO not because of

the criticisms of UNESCO made by the US and the UK. Singapore believes that UNESCO has a useful role to play in many countries. Singapore's decision is for the following reasons. ‘ ' ,

2 Singapore has been inactive jn UNESCO for manyyears. As a small country, Singapore must set priptities and practise economy in its international activities,to ensure that its efforts arid resources are best used to serve the interests of the nation. In,recent years, Singapore has become a victim of an unfair system of assessment for contributions to the UN Regular Budget. Singapore's1 assessed contribution to UNESCO, a UN, Specialised Agency, is based on its rate of assessed contribution: to the UN Regular Budget. .

3 The UN scale of assessment is calculated on thebasis of the average national income of a member state over a ten-year base peripd. Countries with per capita incomes below US$2,iOO are given felief in their assessed contributions. The burden of pelief is absorbed by all countries with per capita incomes above US$2,100 in accordance with their assessable national income. In the last few years, the US contribution has remained fixed at 25 percent of the total UN Budget. The rates of contribution of the socialist bloc have been stagnant or declining, and the contributions of most Western countries have also remained stagnant. However, Singapore and a few other developing countries have had their assessed contributions increased.

4 The methodology used to determine the UN scale of assessment is extremely unfair and does not truly reflect the country's real capacity to pay. The use,of' national statistics at market prices to assess:member States' real capacity to pay is a major defect. It does not provide a uniform measure to compare the economic performance of both market and centrally-planned economies. There is no mechanism to correct for distortion t° statistics provided by the statistical bureaux of socialist economies caused by inflation and exchange rate fluctuations.

5 The irony is that the socialist bloc economies whichhave boasted of high economic growth in repent yearp.are having their rate of assessment reduced in the next UN Budget Triennium (1986-881. It appears that when the economies of the socialist bloc countries grow, their scale of assessment falls. _* ( This is the text of remarks made by the spokesman of the Ministry of

Foreign Affairs in Singapore, provided to the news by the Singapore High Cantinissioner, Canberra).


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6 Singapore, as a small country with no natural .resources, is vulnerable to the vagaries of the international economic environment. Its eqonomy has not achieved the ability to generate self-sustaining growth found in the industrialised countries. Singapore's assessed contribution to the UN Regular Budget increased by 100 percent in the first decade of Singapore's membership to the UN From 1976 to 1984, Sihgapore's contribution increased by more than 400 percent. Singapore's assessed contributions to UN specialised agencies, Such as UNESCO, have also risen sharply along with this trend.

7 For the moment, there is little hope of a moreequitable methodology emerging in the foreseeable future to determine members' real capacity to pay. Singapore, however, cannot let such a situation continue.indefinitely Under these circumstances,' Singapore has decided to withdraw from UNESCO. If the trend continues, Singapore may have to consider the relevancy for; a Third World country such as Singapore of some of the other international organisations as well.


AUSTRALIA'S REGIONAL RELATIONSHIP IN UNESCO

Australia was a founding member of unesco having signed the Constitution on 4 November 1946 - the same day as China, India, France, the United Kingdom, Canada, the United States and others. For almost all of the next 30 years Australia was identified in Unesco as one of the Western group of countries Our contacts with the Asian region were cordial but our involvement was very limited.

In 1964, a system of regional groups was instituted for the purposes of arranging participation in 'regional activities in which the representative character is an important factor' in other words the right to participate in regional activities At that time Australia was not allocated to either the Europe region or the then Asia and Oceania region.However our position as one of the Western Europe and Others Group (WEOG) was temporarily settled in 1968 when Unesco introduced a formal system of groups for the purposes of elections to the Executive Board.

In the early 1970s our situation was therefore rather unsatisfactory - in Europe for elections and nowhere for program participation. The Whitlam Government in 1974 took the initiative to rectify the latter situation in line with the wider initiatives in foreign policy. By a resolution of the 1974 Session of the General Conference Australia was included as a member of the Asia and Oceania program region. (It was the same resolution which added New Zealand to the Asia and Oceania region, and Canada and the USA to Europe, but left Israel out of any region).

Since 1974, Australia has provided ample evidence of our commitment to the Asia and Pacific program region. The Australian National Commission for Unesco, the Government's advisory body on Unesco matters, has given regional program activities first priority in the decade both through hosting activities forming part of the Unesco international program and conducting its own projects in response to regional priorities. Hundreds of participants from the region have joined in activities in Australia in the ten years since 1974.

Australian membership of the Asia-Pacific Electoral Group is a more complicated matter. Participating in joint program activities is something to which all countries can easily subscribe. Voting for election to the controlling bodies of an organisation is a matter which impacts on wider foreign relations issues. Action in unesco on such matters cannot be confined to Unesco. Arrangements made across the united Nations system are affected


The 1983 attempt by Australia and New Zealand to regularise their regional group arrangements by shifting to the Asia and Pacific Electoral Group was not successful.

Notwithstanding the majority support of countries in the Asia/Pacific Group and the widespread acceptance among unesco's members generally that our transfer to this Group would be a logical reflection of the regional forms of Australia's foreign policy, this step has so far been frustrated by the continuing concerns of some Unesco countries about the size and composition of the Organisation's Executive Board.

An increasingly important part of our unesco regional relationship is with countries of the Pacific. At present four Pacific countries are members of Unesco - Papua New Guinea, Western Samoa, Tonga and Fiji. Their membership of Unesco, and the possible future membership of other Pacific countries, places new responsibilities on Unesco. By recently opening a representative office in Apia, Western Samoa, unesco has begun to respond to the needs of the new members.

Widening Pacific membership of unesco will also have implications for Australian membership of Unesco. It will be a particular responsibility of the recently restructured National Commission for Unesco to respond to the needs of the new members - to consider the involvement of the Pacific in all their co-operative projects. As in our relationship with the Unesco member states in Asia, size, population or affluence are relatively unimportant. The commitment toparticipate/co-operate as equals is what is essential; it is this characteristic which makes our membership of Unesco so valuable.

(Statement by the Hon. Susan Ryan,Minister for Education, 11 February 1985).


UNESCO - AUSTRALIA

UNESCO GENERAL CONFERENCE 1983: REPORT OF THE AUSTRALIAN DELEGATION

The General Conference of UNESCO met in Paris between 25 October to 26 November 1983. The General Conference, which meets in ordinary session every two years, determines the policies and the main lines of work of UNESCO and takes decisions on programmes drawn up by the Board. The Australian Delegation was led by Senator Honourable Susan Ryan, Minister for Education and Youth Affairs and Minister Assisting the Prime Minister on the Status of Women.

Notwithstanding the fact that Australia is a foundation'member, this was only the second occasion when a Minister lead an Australian Delegation. Upon her return to attend sittings of Parliament, the delegation was led by His Exellency the Honourable Edward Gough Whitlam QC, the Ambassador and Permanent Delegate to UNESCO, and a former Australian Prime Minister. Other delegates were Professor Ronald Gates, Vice Chancellor University New England and Chairman of the National Committee for UNESCO, the Honourable Justice Michael Kirby CMG and Mr Gratton Wilton, Executive Secretary of the Commonwealth Scientific and Industrial Research Organisation. ;

For the first time, the report of the Australian Delegation was tabled in the Australian Parliament. In delivering the report to the Minister, the Ambassador wrote:

Dear Minister,

After you visited Paris to lead the Australian delegation to the 22nd session of Unesco’s General Conference, you decided to table a report from the delegation in Parliament. 1 now have the pleasure of delivering it to you.

The delegates who attended the Commissions of the Conference were predominantly responsible for preparing the reports on the Commissions. I he other sectors of the report were prepared by the permanent delegation.

Since this is the first time that a delegation’s report is to be tabled, it includes some constitutional, historical and statistical material which is not readily available.

A month after the session ended, the United States of America gave notice to the Director-General that it would withdraw from Unesco. This notice will take effect on 31 December 1984. It was not recommended by the US delegation to the session. It was given'despite clear indications of a reduction throughout the session in the degree of politicisation and ideological conlrontation in Unesco s proceedings. The USA has always been by far the largest contributor to Unesco funds and, no less importantly, the wealth and variety of its intellectual resources make it the largest contributor to Unesco’s activities and objectives.Kven if it returns, its absence will leave Unesco permanently weakened as its three-year withdrawal from ILO has permanently weakened that companion component of the UN system. There are signs that the United Kingdom, another founding member and in the early years the second most important member,Because of the increasing tensions in the world the purposes of Unesco are as important today as they were when the Organization was founded. Wars still begin in the minds of men and women. Like all truly international institutions Unesco has greatly changed in membership and outlook since it was founded.It must be a microcosm of the world as it is. In reporting to the Parliament on the 1983 session the delegation cannot appropriately analyse the ideological divergence between the political parties of the Right and Left in the Western democracies on the question of multilateral organisations and conventions. It is proper for it, however, to affirm its conviction that Australia’s duty is to stay firmly in Unesco, as a critic where the Organization is seen to be inefficient or misguided but always as a positive participant. If the brave idea of Unesco failed, the world ^vould be a more dangerous place.

Yours sincerely,


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The report is a useful and interesting document. In the following pages, we publish the text of the Minister's speech which indicates the Australian Governments policy to UNESCO. Having regard to Australia's increacing attachment to her neighbouring region, that part of the report entitled "Australia's Appropriate Group" is pertinent. In the context of the current controversy over UNESCO, reference may be made to that part of the report relating to the Budget. The following programmes would be of interest to international lawyers:Programme X9- Environmental Education and Information,Major Programme III - Communication in the Service of Man, which deals

with the next question of a New World information and communication order,

Major Programme XI Culture and the Future,Programme XI1.2 The Elimination of Prejudice, Intolerance', Racism and

Apartheid,Major Programme XIII, Peace, International Understanding, Human Rights

and the Rights of People.

Finally, we draw attention that part of the report relating to the election of committees and a useful addendum concerning UNESCO Conventions and Australian actions thereunder.

Annexure A Minister’s speechI join the previous speakers in congratulating you, Mr President, on your election. I would also like to express a warm welcome to those new Member States and the new

’ Associate Members who have joined the Organization since the last session of theGeneral Conference. Their action in joining Unesco gives our Organization a universality of membership to match the universality of its charter.

Mr President, I would like to begin by drawing your attention to the concluding words of the Director-General’s introduction to the draft program and budget. Here he speaks of upholding the rights of each and every person in the world to equity, justice and peace.In reaching out for this ideal, the Organization strikes a full chord of sympathy from the Australian Government. As part of the policy statement on which my Government was elected, we affirmed our commitment to contribute to the creation of a just, equitable and humane internatoinal society.

This aim has been dear to the Australian people for many years. Indeed, Australia was a foundation member of Unesco. The present Australian Government is the successor of the Labor Government which appointed Australia’s first full-time Ambassador to Unesco. A Minister in that Government was the only Australian Minister before me to address the General Conference.

To demonstrate our commitment to the work of Unesco, my Government since its election in March this year has moved quickly to a more active role in the work of this Organization. One of our decisions as a Government was to appoint a most distinguished Australian as Ambassador and Permanent Delegate. Mr Gough Whitlam, a former Labor Prime Minister of Australia, will be known to many of you because of his long involvement nationally and internationally in issues with which Unesco is concerned. His expert and energetic leadership, together with a strengthened staff, will mean an increased contribution by Australia to the work here in Paris.

One of the contributions which the Organization can make to the achievement of the purposes for which it was founded is through its standard setting instruments. Some distinguished delegates, Mr President, may be aware of the way in which the Australian Government recently acted to ensure that the words and spirit of the World Heritage Convention were acknowledged within Australia. In April this year, on the first day that the new Parliament met, the Government introduced a World Heritage Properties Conservation Act. On the first of July 1983, the High Court of Australia gave judgment on a challenge against this legislation and found that through its being a signatory to the World Heritage Convention the Australian Government had powers to prevent the construction of a proposed dam in the South-West Tasmania wilderness area. This wilderness area, which contains one of the few remaining temperate rain forests in the world, is listed on the World Heritage List. It has now been saved. Our Government has further demonstrated its commitment to the principles of the World Heritage

. Convention by declaring the second stage of the Kakadu National Park in the NorthernTerritory and by declaring the Great Barrier Reef a marine park.

Turning to the peace objective of Unesco, it should be noted that our Government has appointed Australia’s first Ambassador for Disarmament and has taken steps to establish a peace research institute in Australia. I have also initiated a national peace curriculum


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program for Australian schools. In another area of concern to Unesco, major government policy for which I am responsible is comprehensive legislation prohibiting discrimination on the grounds of sex and marital status in a wide range of areas. As our environment legislation gained force by our participation in the World Heritage Convention, so our sex discrimination legislation implements our responsibilities following our Government’s ratification of the United Nations Convention for the Elimination of All Forms of Discrimination against Women. One of the fundamental areas in which discrimination on the basis of sex or marital status will be prohibited is that of education.

When the legislation is enacted, which will happen shortly after my return to Australia, all federal-funded education programs will be required to be equally accessible to girls as to boys. Equal access will also be required for female students in tertiary institutions and the legislation will prohibit discriminatory employment practices in universities and other tertiary institutions. These measures will ensure Australia’s compliance with the Unesco objective of improving educational opportunities for women.

In the few days in which I have been absent from Australia, our Government has announced its intention to introduce a Bill of Rights for Australians, together with other human rights legislation. The Bill of Rights will deal with basic rights such as freedom of expression, conscience, religion and protection of privacy. It will also protect against the restrictions of such rights by written laws and government action.

The human rights package will also include a strengthening of the Racial Discrimination Act, which provides protection against discrimination on the grounds of race for the many racial groups that now make up multicultural Australia and, in particular, for the indigenous people of Australia, the Australian Aborigines, whose grossly disadvantaged position in Australian society will be energetically addressed by our Government.

The Government has been seeking ways to ensure that national actions and policies closely reflect the norms and agreements to which Member States of Unesco have subscribed at earlier sessions of the General Conference. It now gives me pride and pleasure to announce that the Government proposes to become a party to the following Unesco Conventions:

□ the Convention for the Protection of Cultural Property in the Event of Armed Conflict:

□ the Convention on the International Exchange of Publications;□ the Convention on the Exchange of Official Publications and Government Docu

ments between States; and□ the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export

and Transfer of Ownership of Cultural Property.

In respect at least of the last Convention, delegates will appreciate that administrative machinery and legislation may be required prior to accession. My Government is actively considering these requirements.

Unesco is unique among the specialised agencies of the United Nations in the breadth of its areas of competence. Thus, it has a unique opportunity to approach world problems in an interdisciplinary fashion. We welcome the interdisciplinary presentation of the new draft program and we hope that its implementation will involve a matching administrative response. It is in the science programs that the value of an interdisciplinary approach can be most clearly seen. Scientific advances so often develop in separate scientific compartments. We can understand some of the divisions which are evident in Major Program X, but we urge Unesco to break down the dividing walls between scientific disciplines and. further, to give special attention to the impact of scientific advances on social and cultural issues. Major Program VI offers special possibilities for this approach.


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Mr President, we appreciate the difficulty the Director-General faces in pursuing the ideals of equity, justice and peace for all people in a world in which so much is expected of the United Nations and its specialised agencies and in which any shortcomings become a target for criticism. Too often, support for idealism is quickly withdrawn in a time of economic recession such as we have now. However, because the economic problems of each of us is related to our collective problems, the only effective solutions to these problems will be solutions that are collectively formulated and implemented in a co-operative manner. The economic recession makes the work of Unesco even more urgent and relevant than it was in more prosperous times.

Mr President, Unesco was established to contribute to peace and international understanding through intellectual co-operation. We believe that this fundamental purpose can best be served through co-operative, practical action. We Australians are a practical people. We like to think we are tolerant; we like to think we are co-operative; we want to support an organisation whose commitment to practical action can be realised despite the pressing political problems which absorb so many of its members. It is involvement with effective programs which in the long run wiil sustain the support of Member States.In this context Australia is particularly mindful of the serious political, social and economic strains confronting many of its developing country partners. Unesco can play an important role by ensuring that its operational programs are focused on the practical needs of its member countries.

In the same way we want Unesco to be seen to be an organisation primarily concerned with action rather than, to use the present vocabulary, reflection. I am not advocating all of one approach and nothing of the other, for we are fully conscious of the need for all actions to be based on a firm and proper understanding of the problem. We similarly understand that often it will be necessary for Unesco to mount its own basic research programs. We support such work provided there is a demonstrated link between the research and proposed program actions, and provided that the research is directed to the causes, rather than the symptoms, of the world problems which properly fall within Unesco’s areas of concern.

Our concern for practical, action-oriented research will be reflected domestically as well. I intend to review the work of the Australian National Commission for Unesco to ensure that projects supported by it fulfil the requirements we are asking of Unesco itself. ,

Mr President, I have supported the Director-General’s emphasis on equity, justice and peace and I have referred to the importance of the practical elements in Unesco’s programs. With this in mind I would like to compliment the Director-General particularly on the general thrust of the proposals in the field of education. As Minister for Education I have a particular interest in many of the activities proposed in Major Program II, ‘Education for AH’. My Government’s commitment to action in this field within Australia is reflected in its new Participation and Equity Program.

This program is aimed at reform in secondary schooling. The need for such reform is clearly demonstrated by the low participation rates of Australian students in the later years of secondary schooling. Despite our relative affluence and the universal provision of secondary schooling, only one-third of our young people complete a full six years of secondary education. This figure is far too low and compares unfavourably with other OECD countries. It is particularly unacceptable to our Government because it is the children of poor families, of some migrant groups and of Aborigines who are failing to complete secondary school and are thus, at a time of high unemployment, seriously disadvantaged compared to middle class children who generally do complete their secondary schooling. The changes that we plan through the Participation and Equity Program will include changes to curriculum and changes to school organisation, so that all children regardless of their ethnic or cultural background or gender, will find appropriate and engaging education or training for six secondary years.


Mr President, the Director-General has an unenviable task in administering programs in a community of 160 Member States so diverse in their history, their culture, their needs and their hopes for the future. There are some aspects of Unesco’s endeavours in which we feel there is more to be gained from regional action to bring together countries with common concerns. We therefore give strong support for actions designed to bring about a shift in the administration of the Organization from the present concentration here in Paris to places much closer to the scene of the program delivery. In the years between conferences we have noted some change and indeed we are strongly supportive of the way in which the Regional Office in Bangkok is structured and administered. Within the area of the Pacific we welcome the proposal to establish a small presence in one of the Pacific Member States. It is only a beginning, however. A more concerted effort, indeed a strong policy commitment, must be made to bring about a further change. We therefore wish to compliment the Director-General on the decentralisation proposals which he has outlined in his introduction to the draft program and budget. We fully support his proposals to make such administrative changes, or changes to regulations, in order to speed up the process.

One of the areas of endeavour in which regional action is especially effective is education. In this field we commend the co-operative action and the sharing of experience among the nations of the Asia and Pacific region, especially through the Asian Program of Educational Innovation for Development and through the new Regional Co-operative Program in Higher Education.

With New Zealand we became a member of the Asia-Pacific region for program purposes at the 18th Session of the General Conference and our association with our neighbours in that context has encouraged us both to seek membership of the region also for electoral purposes. Distinguished delegates will be aware of the Constitutional amendment which has been submitted by Australia and New Zealand. That amendment, Mr President, seeks to do three things:

□ first, it seeks the approval of the General Conference for the transfer of Australia and New Zealand from Electoral Group I to Electoral Group IV;

□ secondly, and to take account of the move from Group I to Group IV, the approval of the General Conference is sought to increase the size of the Executive Board by one seat; and

□ finally, the approval of the General Conference is sought to allocate the additional Executive Board seat so created to Group IV.

Our reasons for seeking the agreement of the General Conference to the above action are outlined in the statement attached to the agenda paper. I will not repeat that explanation. I hope that distinguished delegates will be able to understand our position and, at the appropriate time, to support our proposal.

Mr President, I wish to conclude this address by reaffirming the commitment of the Australian Government to the work of Unesco. In the coming weeks my delegation will be seeking to play a positive and constructive role in the debates and discussions of this Conference. Our approach will follow the broad principles which I have outlined in this address. There will be occasions on which we may express views quite different from those expressed by others. We do not see that the expression of such differences should be regarded as a weakness of the Organization: on the contrary, they should be seen as one of its strengths, for they represent a dialogue between people separated by many factors of geography, history and economic development. Such a dialogue, of course, involves tolerance towards others — their views, cultures and aspirations; where there is tolerance, there is the true spirit of international co-operation.


INTERNATIONAL COURT OF JUSTICE

Canada, the United States of America

Delimitation of the Maritime Boundary in the Gulf of Maine Area*

The following information is made available to the press by the Registry of the International Court of Justice:

Today, 12 October 1984, the Chamber of the Court constituted in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) delivered its Judgment0

The Chamber decides by four votes to one:

"That the course of the single maritime boundary that divides the continental shelf and the exclusive fisheries zones of Canada and the United States of America in the Area referred to in the Special Agreement concluded by those two States on 29 March 1979 shall be defined by geodetic lines connecting the points with the following co-ordinates:

Latitude North Longitude West

A0 •P>

i O ro 67° 16' 46"Bo 42° 53' 14" 67° 44' 35"C. 42° 31' 08" 67° 28' 05"Do 40° 27' 05" 65° 41' 59"

(For the location of these points see Annex 2, Map 4.)

*

The votes were cast as follows:IN FAVOUR: President Ago; Judges^ Hosier and Schwebel, Judge ad hoc Cohen;

AGAINST: Judge Gros0

*

The...

* (This is the text of a cormunique No. 84/35 of* 12 October 1984 from the Court.)


Analysis of the Judgment

I; The Special Agreement and the Chambers Jurisdiction (paras. 1-27)

After recapitulating the various stages in the proceedings and setting out the formal submission of the Parties (paras. 1-13), the Chamber takes note of the provisions of the Special Agreement by which the case was brought before it. Under Article II, paragraph 1, of that Special Agreement, it was:

"requested to decide, in accordance with the principles and rules of international law applicable in the matter as between the Parties, the following question:

What is the course of the single maritime boundary that divides the continental shelf and fisheries zones of Canada and the United States of America from a point in latitude 44°llt12"N, longitude 67°16,46"W to a point to be determined by the Chambervwithin an area bounded by straight lines connecting the following sets of geographic coordinates: latitude40°N, longitude 67°W; latitude 40°N, longitude 65°W; latitude 42°N, longitude 65°W?"

(For the location of the starting-point and terminal area of the delimitation, see Ann. 2, Map No. 1.)

The Chamber notes that the Special Agreement imposes no limitation on its jurisdiction other than that resulting from the terms of this question, and that the rights of third States in the marine and submarine areas to which the case related could not in any way be affected by the delimitation. It also notes that, the case having been submitted by special agreement, no preliminary question of jurisdiction arose. The only initial problem that might theoretically arise is whether and to what extent the Chamber is obliged to adhere to the terms of the Special Agreement as regards the starting-point of the line to be drawn - called point A - and the triangular area within which that line is to terminate. Noting the reasons for the Parties' choice of the point and area in question, the Chamber sees a decisive consideration for not adopting any other starting-point or terminal area in the fact that, under international law, mutual agreement between States concerned is the preferred procedure for establishing a maritime delimitation; since Canada and the United States of America had by mutual agreement taken a step towards the solution of their dispute which must not be disregarded, the Chamber must, in performing the task conferred upon it, conform to the terms by which the Parties have defined it.

The Chamber notes that there are profound differences between the case before it and other delimitation cases previously brought before the Court in that (a) the Chamber is requested to draw the line of delimitation itself and not merely to undertake a task preliminary to the determination of a line, and (b) the delimitation requested does not relate exclusively to the continental shelf but to both the shelf and the exclusive fishing zone, the delimitation to be by a single boundary. With regard to (b), the Chamber is of the view that there is certainly no rule of international law, or any material impossibility, to prevent it from determining such a line.

Q.985 ] AUSTRALIAN INTERNATIONAL LAW NEWS 470

that of the waters and their living resources, for both States proceeded to Institute an exclusive 200-mile fishery zone off their coasts and adopted regulations specifying the limits of the zone and continental shelf they claimed.In its account of the negotiations which eventually led to the reference of the dispute to the Court, the Chamber notes that in 1976 the United States adopted a line limiting both the continental shelf and the fishing zones and the adoption by Canada of a first line in 1976 (Ann. 2, Map No. 2).

The Chamber takes note of the respective delimitation lines now proposed by each Party (Ann. 2, Map No. 3). The Canadian line, described like that of 1976 as an equidistance line, is one constructed almost entirely from the nearest points of the baselines from which the breadth of the territorial sea is measured. Those points happen to be exclusively islands, rocks or low-tide elevations, yet the basepoints on the Massachusetts coast which had initially been chosen for the 1976 line have been shifted westward so that the new line no longer takes account of the protrusion formed by Cape Cod and Nantucket Island and is accordingly displaced west. The line proposed by the United States Is a perpendicular to the general direction of the coast from the starting-point agreed upon by the Parties, adjusted to avoid the splitting of fishing banks. It differs from the "Northeast Channel line" adopted in 1976 which, according to its authors, had been based upon the "equidistance/special circumstances" rule of Article 6 of the 1958 Geneva Convention. The Chamber notes that the two successive lines put forward by Canada were both drawn primarily with the continental shelf in mind, whereas the United States lines were both drawn up initially on the basis of different considerations though both treated the fishery regime as essential.

IV. The applicable principles and rules of 1nternational law (paras. 79-112)

After observing that the terras "principles and rules” really convey one and the same idea, the Chamber stresses that a distinction has to be made between su'd, principles or rules and what, rather, are equitable criteria or practical methods for ensuring that a particular situation is dealt with in accordance with those

| principles and rules. Of its nature, customary international lav; can only provide I a few basic legal principles serving as guidelines and cannot be expected also to

specify the equitable criteria to be applied or the practical methods Lo be followed. The same may however not be true of international treaty lav/.

To determine the principles and rules of international law governing maritime delimitation, the Chamber begins by examining the Geneva Convention of 29 April 1958 on the Continental Shelf, which has been ratified by both the Parties to the ease, who both also recognize that it is in forcc betwcen them. In particular the Chamber examines Article b, paragraphs 1 and 2, from which a principle of international law may be deduced to the effect that any delimitation of a continental shelf effected unilate rally by one Statu regardless of the views of the other State or States concerned is not. opposable to those States. To this principle may conceivably be added a latent rule that any agreement or oilier, equivalent solution should involve the application of equitable criteria. The Chamber goes on to consider the bearing on the problem of various judicial decisions and-to comment upon, the work of the Third United Nations Conic) once on the Law of the Sea, noting that certain provisions c. oncer; ing td.o coni i. no nia I she 1 f and the exclusive economic none were, In the Convention of i9S2, adopted without any objections a ad may be regarded as consonant at present with general international law on the question.

As. . .


an application. Dealing first with a Canadian argument that the conduct of the United States had evinced a form of consent to the application of the equidistance method, especially in the Georges Bank sector, the Chamber finds that reliance on acquiescence or estoppel is not warranted in the circumstances aiM that the conduct of the Parties does not prove the existence of any such modus vivendi. As for the argument of the United States based on Canada’s failure to react to the Truman Proclamation, that amounted to claiming that delimitation must be effected in accordance with equitable principles; consequently, the United States position on that point merely referred back to the "fundamental norm" acknowledged by both Parties. On the basis of that analysis, the Chamber concludes that the Parties, in the current state of the law governing relations between them, are not bound, under a rule of treaty law or other rule, to apply certain criteria or certain methods for the establishment of the single maritime boundary, and that the Chamber is not so bound either.

Regarding possible criteria, the Chamber does not consider that it would be useful to undertake a more or less complete enumeration in the abstract of those that might be theoretically conceivable, o\ an evaluation of their greater or lesser degree of equity. It also notes, in regard to the practical methods, that none would intrinsically bring greater justice or be of greater practical usefulness than others, and that there must be willingness to adopt a combination of different methods whenever circumstances so require.

VI. The criteria and methods proposed by the Parties and the lines resulting from their application to the delimitation (paras. 164-189)

Once the dispute had taken on its present dual dimension (first the continental shelf and subsequently fisheries) both Parties took care to specify and publish their respective claims, proposing the application of very different criteria and the use of very different practical methods. Each had successively proposed two delimitation lines (Ann. 2, Maps Nos. 2 and 3).

The United States had first proposed, in 1976, a criterion attaching determinative value to the natural, especially ecological, factors of the area.Its line corresponded approximately to the line of the greatest depths, leaving German Bank to Canada and Georges Bank to the United States. The Chamber considers that this line, inspired as it was by the objective of distributing fishery resources in accordance with a "natural" criterion, was too biased towards one aspect (fisheries) to be considered as equitable in relation to the overall problem. In 1982 the United States proposed a second line with the general direction of the coast as its central idea, the criterion applied being that of the frontal projection of the primary coastal front. This application resulted in a perpendicular to the general direction of the coastline, adjusted however to Lake account of various relevant circumstances, in particular such ecological, circumstances as the existence of fishing banks. The Chamoer considers It almost an essential condition for the use of such a method that the boundary to be drawn should concern two countries whose territories lie successively along a more or less rectilinear coast, for a certain distance at least. But it would be difficult to imagine a case less conducive to the application ot that method than the Gulf of Maine case. The circumstances would moreover entail so many adjustments that the character of the method would be completely distorted.

As. . »


United States and Canada is one of lateral adjacency. In the sector closest to the closing line, it is one of oppositeness. In the Chamber's view it is therefore obvious that, between point A and the line from Nantucket to Cape Sable, i.e. within the limits of the Gulf of Maine proper, the delimitation line must comprise two segments.

In the case of the first segment, the one closest to the international boundary terminus, there is no special circumstance to militate against the division into, as far as possible, equal parts of the overlapping created by the.

I lateral superimposition of the maritime projections of the two States' coasts. Rejecting the employment of a lateral equidistance line on account of the disadvantages it is found to entail, the Chamber follows the method of drawing, from point A, two perpendiculars to the two basic coastal lines, namely the line from Cape Elizabeth to the international boundary termninus and the line running thence to Cape Sable. At point A, those two perpendiculars form an acute angle of 278°. It is the bisector of this angle which is prescribed for the first sector of the delimitation line (Ann. 2, Map No. 4).

In turning to the second segment, the Chamber proceeds by two stages. First, it decides the method to be employed in view of the quasi-parallelism between the coasts of Nova Scotia and Massachusetts. As these are opposite coasts, the application of a geometrical method can only result in the drawing of a median delimitation line approximately parallel to them. The Chamber finds, however, that, while a median line would be perfectly legitimate if the international boundary ended in the very middle of the coast at the back of the Gulf, in the actual circumstances where it is situaLed at the northeastern corner of the rectangle which geometrically represents the shape of the Gulf, the use of a median line would result in an unreasonable effect, in that it would give Canada the same overall maritime projection in the delimitation area as it the entire eastern part of the coast of Maine belonged to Canada instead of the United States. That being so, the Chamber finds a second stage necessary, in which it corrects the median line to take account of the undeniably important circumstance of the difference in length between the two States' coastlines abutting on the delimitation area. As

■ the total length of the United States coastlines on the Gulf is approximately284 nautical miles, and that of the Canadian coasts (including part of the coast of the Bay of Fundy) is approximately 206 nautical miles, the ratio of the coast linos is 1.38 to 1. However, a further correction is necessitated by the presence of Seal Island off Nova Scotia. The Chamber considers that it would be excessive to consider the coastline of Nova Scotia as displaced In a southwesterly direction by the entire distance between Seal Island and that coast, and therefore considers it appropriate to attribute half effect to the island. Taking that into account, the ratio to be applied to determine the position of the corrected median line on a line a c r o s s the Guff bet we e n t he p o i n f >; wli (1 r e t he c o a s t s of N (3 va Scot! a a \v i Massachusetts are closest (i.e. a line from the tip of Cape Cod to Chebogue Uoint) becomes 1.32 to 1. The sec. end segment of t ho delimitation will therefore correspond to the median line as thus corrected, trom its intersection with the bisector d rawn from point A (first segment) to the point where it reaches the: c 1 osing line of the Gu 1 f (Ann. 2, '!ap Co. 1) .

As for t he third segment of the de 11 mi tati.on, ro 1 at i n;•, to t hal part of 1.1\e delimitation area lying outside the Gelf of Maine, this portion of the line is

silnoted...

473[1985] AUSTRALIAN INTERNATIONAL LAW NEWS

For these reasons, the Chamber renders the decision couched in the following terms:

Operative provisions of the Chambers Judgment"THE CHAMBER,

by four votes to one,

DECIDES

That the course of the single maritime boundary that divides the continental shelf and the exclusive fisheries zones of Canada and the United States of America in the Area referred to in the Special Agreement concluded by those two States on 29 March 1979 shall be defined by geodetic lines connecting the points with the following co-ordinates:

Latitude North Longitude West

A. 44° 11' 12” 67° 16' 46"B. 42° 53' 14” 67° 44' 35”C. 42° 31' 08” 67° 28' 05"D. 40° 27' 05” 65° 41' 59"

IN FAVOUR President Ago; Judges Hosier and Schwebel, Judge ad

AGAINST: Judge Gros.”

*

(For the location of the co-ordinates given above, see Ann. 2, Map No. 4.)


Summary of Opinions appended to the Judgment of the Chamber

Separate Opinion hy J :dge Schwebel -

Judge Schwebel voted for the Chamber’s Judgment because he agreed with the essentials of its analysis and reasoning and found the resultant line of delimitation to be "not inequitable". In his view, the Chamber was right to exclude both the claims of Canada and of the United States, not with a view towards "splitting the difference" between them but because those claims were insufficiently grounded in law and equity. It was right - contrary to the United States position - to divide Georges Bank between the United States and Canada. However, Judge Schwebel maintained that the line of delimitation drawn by the Chamber was open to challenge.

The line was correctly based on dividing the areas of overlapping United States and Canadian jurisdiction equally, subject, however, to a critical adjustment designed to take account of the fact that the bulk of the Gulf of Maine is bordered by territory of the United States. In Judge Schwebel’s view, the adjustment applied by the Chamber was inadequate, because it treated the lengths of the coasts of the Bay of Fundy up to the limit of Canadian territorial waters as part of the Gulf of Maine. In his opinion, only that portion of the Bay of Fundy which faces the Gulf of Maine should have been included in that calculation of proportionality. Had that been done, the delimitation line would have been shifted towards Nova Scotia so as to accord the United States a significantly larger zone. Nevertheless, Judge Schwebel acknowledged that the equitable considerations which led the Chamber and him to differing conclusions on this key issue were open to more than one interpretation.

sen t i:\ \. . .


7 CANADACANADA

** • ft* ' ‘

flL AN 1IC

lOCEAN

MAP No. 1

General map of the region, showing the starting-point for the delimitation line and the area for its termination.

*

The maps incorporated in the present Judgment were prepared on the basis of documents submitted to the Court by the Parties, and their sole purpose is to provide a visual illustration of the relevant paragraphs of the Judgment.


CAPE BRETON TO/A CAPE COO


NICARAGUA v. UNITED STATES OF AMERICA MILITARY AND PARAMILITARY ACTIVITES IN AND AGAINST NICARAGUA. International Court of Justice, 26 November 1984. (First Phase)*

Judgment of the Court

The following information is communicated to the press by the Registry of the International Court of Justice:

In the Judgment delivered today 26 November 1984, the International Court of Justice finds, by fifteen votes to one, that it has jurisdiction to entertain the case and unanimously that the Application filed by Nicaragua against the United States of America is admissible.

*

The complete text of the operative part of the Judgment, with the voting figures, is as follows:

nTHE COURT,

(1) (a) finds, by eleven votes to five, that it has jurisdiction to entertain the Application filed by the Republic of Nicaragua on 9 April 1984, on the basis of Article 36, paragraphs 2 and 5, of the Statute of the Court;

IN FAVOUR : President Elias; Vice-President Sette-Camara;Judges Lachs, Morozov, Nagendra Singh, Ruda,El-Khani, de Lacharriere, Mbaye, Bedjaoui;Judge ad hoc Colliard;

AGAINST : Judges Mosler, Oda, Ago, Schwebel and Sir Robert Jennings;

(b) finds, by fourteen votes to two, that it has jurisdiction to entertain the Application filed by the Republic of Nicaragua on 9 April 1984, insofar as that Application relates to a dispute concerning the interpretation or application of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956, on the basis of Article XXIV of that Treaty;

* (This is the text of a press communique provided by the Registry of the International Court of Justice. This expressly states that the communique in no way involves the responsibility of the court, and cannot be quoted against the text of the judgement, of which it does not constitute an interpretation)


- 2 -

IN FAVOUR : President Elias; Vice-President Sette-Camara;Judges Lachs, Morozov, Nagendra Singh, Mosler, Oda,Ago, El-Khani, Sir Robert Jennings, de Lacharriere, Mbaye, Bedjaoui; Judge ad hoc Colliard;

AGAINST : Judges Ruda and Schwebel;

(c) finds, by fifteen votes to one, that it has jurisdiction to entertain the case;

IN FAVOUR : President Elias; Vice-President Sotte-Camara;Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler,Oda, Ago, El-Khani, Sir Robert Jennings, de Lacharriere, Mbaye, Bedjaoui; Judge ad hoc Colliard;

AGAINST : Judge Schwebel;

(2) finds, unanimously, that the said Application is admissible."

*

The Court was composed as follows: President Elias;Vice-President Sette-Camara; Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Khani, Schwebel, Sir Robert Jennings, de Lacharriere, Mbaye, Bedjaoui; Judge ad hoc Colliard.

*

Judges Nagendra Singh, Ruda, Mosler, Oda, Ago and Sir Robert Jennings appended separate opinions to the Judgment.

Judge Schwebel appended a dissenting opinion to the Judgment.

In these opinions the Judges concerned state and explain the positions they adopted in regard to certain points dealt with in the Judgment. A brief summary of these opinions may be found in the annex hereto.

[1985 J AUSTRALIAN INTERNATIONAL LAW NEWS 479

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Analysis of the Judgment

Proceedings and Submissions of the Parties (paras. 1-11)

After recapitulating the various stages in the proceedings and setting out the submissions of the Parties (paras. 1-10), the Court recalls that the case concerns a dispute between the Government of the Republic of Nicaragua and the Government of the United States of America arising out of military and paramilitary activities in Nicaragua and in the waters off its coasts, responsibility for which is attributed by Nicaragua to the United States. In the present phase, the case concerns the Court’s jurisdiction to entertain and pronounce upon this dispute, as well as the admissibility of Nicaragua’s Application referring it to the Court (para. 11).

I. The question of the jurisdiction of the Court to entertain the dispute (paras. 12-83)

A. The declaration of Nicaragua and Article 36, paragraph 5, of the Statute of the Court (paras. 12-51)

To found the jurisdiction of the Court, Nicaragua relied on Article 36 of the Statute of the Court and the declarations accepting the compulsory jurisdiction of the Court made by the United States and itself.

The relevant texts and the historical background to Nicaragua’s declaration (paras. 12-16)

Article 36, paragraph 2, of the Statute of the International Court of Justice provides that:

"The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

(c) the existence of any fact which, if established, would constitute a breach of an international obligation;

(d) the nature or extent of the reparation to be made for the breach of an international obligation."

On 14 August 1946, under this provision, the United States made a declaration containing reservations which will be described further below (page 8). In this declaration, it stated that:


- 4 -

"this declaration shall remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate this declaration.”

On 6 April 1984 the Government of the United States deposited with the Secretary-General of the United Nations a notification signed by the Secretary of State, Mr. George Shultz (hereinafter referred to as "the 1984 notification"), referring to the declaration of 1946, and stating that:

"the aforesaid declaration shall not apply to disputes with any Central American State or arising out of or related to events in Central America, any of which disputes shall be settled in such manner as the parties to them may agree.

Notwithstanding the terms of the aforesaid declaration, this proviso shall take effect immediately and shall remain in force for two years, so as to foster the continuing regional dispute settlement process which seeks a negotiated solution to the interrelated political, economic and security problems of Central America."

In order to be able to rely upon the United States declaration of 1946 to found jurisdiction in the present case, Nicaragua has to show that it is a "State accepting the same obligation" as the United States within the meaning of Article 36, paragraph 2} of the Statute.

For this purpose, it relies on a declaration made by it on 24 September 1929 pursuant to Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice, the predecessor of the present Court, which provided that:

"The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the Protocol to which the present Statute is adjoined, or at a later moment, declare that they recognize as compulsory ipso facto and without special agreement , in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court..."

in any of the same categories of dispute as listed in Article 36, paragraph 2, of the Statute of the present Court.

Nicaragua relies further on Article 36, paragraph 5, of the Statute of the present Court, which provides that:

"Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms."

The Judgment recalls the circumstances in which Nicaragua made its declaration: on 14 September 1929, as a member of the League of Nations, it signed the Protocol of Signature of the Statute of the Permanent

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 481- 5 -

Court of International Justice^: this Protocol provided that it was subject to ratification and that instruments of ratification were to be sent to the Secretary-General of the League of Nations. On 24 September 1929 Nicaragua deposited with the Secretary-General of the League a declaration under Article 36, paragraph 2, of the Statute of the Permanent Court which reads:

[Translation from the French]

"On behalf of the Republic of Nicaragua I recognize ascompulsory unconditionally the jurisdiction of the PermanentCourt of International Justice.

Geneva, 24 September 1929.(Signed) T.F. MEDINA."

The national authorities in Nicaragua authorized its ratification, and, on 29 November 1939, the Ministry of Foreign Affairs of Nicaragua sent a telegram to the Secretary-General of the League of Nations advising it of the despatch of the instrument of ratification. The files of the League, however, contain no record of an instrument of ratification ever having been received and no evidence has been adduced to show that such an instrument of ratification was ever despatched to Geneva. After the Second World War, Nicaragua became an original Member of the United Nations, having ratified the Charter on 6 September 1945; on 24 October 1945 the Statute of the International Court of Justice, which is an integral part of the Charter, came into force.

The arguments of the Parties (paras. 17-23) and the reasoning of the Court (paras. 24-42) .

This being the case, the United States contends that Nicaragua never became a party to the Statute of the Permanent Court and that its 1929 declaration was therefore not "still in force" within the meaning of the English text of Article 36, paragraph 5, of the Statute of the present Court.

In the light of the arguments of the United States and the opposing arguments of Nicaragua, the Court sought to determine whether Article 36, paragraph 5, could have applied to Nicaragua’s declaration of 1929.

The Court notes that the Nicaraguan declaration was valid at the time when the question of the applicability of the new Statute, that of the International Court of Justice, arose, since under the system of the Permanent Court of International Justice a declaration was valid only on condition that it had been made by a State which had signed the Protocol of Signature of the Statute. It had not become binding under that

Statute ...

^While a State admitted to membership of the United Nations automatically becomes a party to the Statute of the International Court of Justice, a State member of the League of Nations only became a party to that of the Permanent Court of International Justice if it so desired, and, in that case, it was required to accede to the Protocol of Signature of the Statute of the Court.


- 6 -

Statute, since Nicaragua had not deposited Its Instrument of ratification of the Protocol of Signature and it was therefore not a party to the Statute. However, it is not disputed that the 1929 declaration could have acquired binding force. All that Nicaragua need have done was to deposit its instrument of ratification, and it could have done that at any time until the day on which the new Court came into existence. It follows that the declaration had a certain potential effect which could be maintained for many years. Having been made '’unconditionally” and being valid for an unlimited period, it had retained its potential effect at the moment when Nicaragua became a party to the Statute of the new Court.

In order to reach a conclusion on the question whether the effect of a declaration which did not have binding force at the time of the Permanent Court could be transposed to the International Court of Justice through the operation of Article 36, paragraph 5, of the Statute of that body, the Court took several considerations into account.

As regards the French phrase "pour une duree qui n'est pas encore expiree" applying to declarations made under the former system, the Court does not consider it to imply that "la duree non expiree” (the unexpirod period) is that of a commitment of a binding character. The deliberate choice of the expression seems to denote an intention to widen the scope of Article 36, paragraph 5, so as to cover declarations which have not acquired binding force. The English phrase "still in force” does not expressly exclude a valid declaration of unexpired duration, made by a State not party to the Protocol of Signature of the Statute of the Permanent Court, and therefore not of binding character.

With regard to the considerations governing the transfer of the powers of the former Court to the new one, the Court takes the view that the primary concern of those who drafted its Statute was to maintain the greatest possible continuity between it and the Permanent Court and that their aim was to ensure that the replacement of one Court by another should not result in a step backwards in relation to the progress accomplished towards adopting a system of compulsory jurisdiction. The logic of a general system of devolution from the old Court to the new resulted in the ratification of the new Statute having exactly the same effects as those of the ratification of the Protocol of Signature of the old Statute, i.e., In the case of Nicaragua, a transformation of a potential commitment into an effective one. Nicaragua may therefore be deemed to have given Its consent to the transfer of its declaration to the International Court of Justice when it signed and ratified the Charter, thus accepting the Statute and its Article 36, paragraph 3.

Concerning the publications of the Court referred to by the Parties for opposite reasons, the Court notes that they have regularly placed Nicaragua on the list of those States that have recognized the compulsory jurisdiction of the Court by virtue of Article 36, paragraph 5, of the Statute. The attestations furnished by these publications have been entirely official and public, extremely numerous and have extended over a period of nearly 40 years. The Court draws from this testimony the conclusion that the conduct of States parties to the Statute has confirmed the interpretation of Article 36, paragraph 5, of the Statute, whereby the provisions of this Article cover the case of Nicaragua.


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The conduct of the Parties (paras. 43-51)

Nicaragua also contends that the validity of Nicaragua’s recognition of the compulsory jurisdiction of the Court finds an independent basis in the conduct of the Parties. It argues that its conduct over 38 years unequivocally constitutes consent to be bound by the compulsory jurisdiction of the Court and that the conduct of the United States over the same period unequivocally constitutes its recognition of the validity of the declaration of Nicaragua of 1929 as an acceptance of the compulsory jurisdiction of the Court. The United States, however, objects that the contention of Nicaragua is inconsistent with the Statute, and in particular that compulsory jurisdiction must be based on the clearest manifestation of the State’s intent to accept it. After considering Nicaragua’s particular circumstances and noting that Nicaragua’s situation has been wholly unique, the Court considers that, having regard to the source and generality of statements to the effect that Nicaragua was bound by its 1929 declaration, it is right to conclude that the constant acquiescence of that State in those affirmations constitute a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute. It further considers that the estoppel on which the United States has relied and which would have barred Nicaragua from instituting proceedings against it in the Court, cannot be said to apply to it.

Finding: the Court therefore finds that the Nicaraguan declarationof 1929 is valid and that Nicaragua accordingly was, for the purposes of Article 36, paragraph 2, of the Statute of the Court, a "State accepting the same obligation" as the United States at the date of filing of the Application and could therefore rely on the United States declaration of 1946.

B. The declaration of the United States (paras. 52-76)

The notification of 1984 (paras. 52-66)

The acceptance of the jurisdiction of the Court by the United States on which Nicaragua relies is the result of the United States declaration of 14 August 1946. However, the United States argues that effect should be given to the letter sent to the Secretary-General of the United Nations on 6 April 1984 (see p. 4 above). It is clear that if this notification were valid as against Nicaragua at the date of filing of the Application, the Court would not have jurisdiction under Article 36 of the Statute. After outlining the arguments of the Parties in this connection, the Court points out that the most important question relating to the effect of the 1984 notification is whether the United States was free to disregard the six months’ notice clause which, freely and by its own choice, it has appended to its declaration, in spite of the obligation it has entered into vis-a-vis other States which have made such a declaration. The Court notes that the United States has argued that the Nicaraguan declaration, being of undefined duration, is liable to immediate termination, and that Nicaragua has not accepted "the same obligation” as itself and may not rely on the time-limit proviso against it. The Court does not consider that this argument entitles the United States validly to derogate from the time-limit proviso included

Cl985.1 AUSTRALIAN INTERNATIONAL LAW NEWS 484

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in its 1946 declaration. In the Court's opinion, the notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction. Reciprocity cannot be invoked in order to excuse departure from the terms of a State’s own declaration. The United States cannot rely on reciprocity since the Nicaraguan declaration contains no express restriction at all. On the contrary, Nicaragua can invoke the six months’ notice against it, not on the basis of reciprocity, but because it is an undertaking which is an integral part of the instrument that contains it. The 1984 notification cannot therefore override the obligation of the United States to submit to the jurisdiction of the Court vis-a-vis Nicaragua.

The United States multilateral treaty reservation (paras. 67-76)

The question remains to be resolved whether the United States declaration of 1946 constitutes the necessary consent of the United States to the jurisdiction of the Court in the present case, taking into account the reservations which were attached to the declaration. Specifically, the United States had invoked proviso (c) to that declaration, which provides that the United States acceptance of the Court’s compulsory jurisdiction shall not extend to

’’disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction”.

This reservation will be referred to as the "multilateral treaty reservation”.

The United States argues that Nicaragua relies in its Application on four multilateral treaties, and that the Court, in view of the above reservation, may exercise jurisdiction only if all treaty parties affected by a prospective decision of the Court are also parties to the case.

The Court notes that the States which, according to the United States, might be affected by the future decision of the Court, have made declarations of acceptance of the compulsory jurisdiction of the Court, and are free, any time, to come before the Court with an application instituting proceedings, or to resort to the incidental procedure of intervention. These States are therefore not defenceless against any consequences that may arise out of adjudication by the Court and they do not need the protection of the multilateral treaty reservation (insofar as they are not already protected by Article 59 of the Statute). The Court considers that obviously the question of what States may be affected is not a jurisdictional problem and that it has no choice but to declare that the objection based on the multilateral treaty reservation does not possess, in the circumstances of the case, an exclusively preliminary character.

Finding: the Court finds that, despite the United States notification of 1984, Nicaragua’s Application is not excluded from the scope of the acceptance by the United States of the compulsory jurisdiction of the Court. The two declarations afford a basis for itsjurisdiction.


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C. The Treaty of Friendship, Commerce and Navigation of 21 January 1956 as a basis of jurisdiction (paras. 77^-83)

In its Memorial, Nicaragua also relies, as a "subsidiary basis" for the Court’s jurisdiction in this case, on the Treaty of Friendship, Commerce and Navigation which it concluded at Managua with the United States on 21 January 1956 and which entered into force on 24 May 1958. Article XXIV, paragraph 2, reads as follows:

"Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means."

Nicaragua submits that this treaty has been and is being violated by the military and paramilitary activities of the United States as described in the Application. The United States contends that, since the Application presents no claims of any violation of the treaty, there are no claims properly before the Court for adjudication, and that, since no attempt to adjust the dispute by diplomacy has been made, the corapromissory clause cannot operate. The Court finds it necessary to satisfy itself as to jurisdiction under the treaty inasmuch as it has found that the objection based upon the multilateral treaty reservation in the United States declaration does not debar it from entertaining the Application. In the view of the Court, the fact that a State has not expressly referred, in negotiations with another States, to a particular treaty as having been violated by the conduct of that other State, does not debar that State from invoking a compromissory clause in that treaty. Accordingly, the Court finds that it has jurisdiction under the 1956 Treaty to entertain the claims made by Nicaragua in its Application.

II. The question of the admissibility of Nicaragua’s Application(paras. 84-108)

The Court now turns to the question of the admissibility of Nicaragua’s Application. The United States contended that it is inadmissible on five separate grounds, each of which, it is said, is sufficient to establish such inadmissibility, whether considered as a legal bar to adjudication or as "a matter requiring the exercise of prudential discretion in the interest of the integrity of the judicial function".

The first ground of inadmissibility (paras. 85-88) put forward by the United States is that Nicaragua has failed to bring before the Court parties whose presence and participation is necessary for the rights of those parties to be protected and for the adjudication of the issues raised in the Application. In this connection, the Court recalls that it delivers judgments with binding force as between the Parties in accordance with Article 59 of the Statute, and that States which consider they may be affected by the decision are free to institute separate proceedings or to employ the procedure of intervention. There is no trace, either in the Statute or in the practice of international tribunals, of an "indispensable parties" rule which would only be conceivable in parallel to a power, which the Court does not possess, to


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direct that a third State be made a party to proceedings. None of the States referred to can be regarded as being in a position such that its presence would be truly indispensable to the pursuance of the proceedings.

The second ground of Inadmissibility (paras. 89-90) relied on by the United States is that Nicaragua is, in effect, requesting that the Court in this case determines the existence of a threat to peace, a matter falling essentially within the competence of the Security Council because it is connected with Nicaragua's complaint involving the use of force.The Court examines this ground of inadmissibility at the same time as the third ground (paras. 91-98) based on the position of the Court within the United Nations system, including the impact of proceedings before the Court on the exercise of the inherent right of individual or collective self-defence under Article 51 of the Charter. The Court is of the opinion that the fact that a matter is before the Security Council should not prevent it from being dealt with by the Court and that both proceedings could be pursued pari passu. The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events. In the present case, the complaint of Nicaragua Is not about an ongoing war of armed conflict between it and the United States, but about a situation demanding the peaceful settlement of disputes, a matter which is covered by Chapter VI of the Charter. Hence, it is properly brought before the principal judicial organ of the United Nations for peaceful settlement. This is not a case which can only be dealt with by the Security Council in accordance with the provisions of Chapter VII of the Charter.

With reference to Article 51 of the Charter, the Court notes that the fact that the inherent right of self-defence Is referred to in the Charter as a "right” is indicative of a legal dimension, and finds that if, in the present proceedings, it became necessary for the Court to judge in this respect between the Parties, it cannot be debarred from doing so by the existence of a procedure requiring that the matter be reported to the Security Council.

A fourth ground of inadmissibility (paras. 99-101) put forward by the United States is the inability of the judicial function to deal with situations involving ongoing armed conflict, since the resort to force during an ongoing armed conflict lacks the attributes necessary for the application of the judicial process, namely a pattern of legally relevant facts discernible by the means available to the adjudicating tribunal.The Court observes that any judgment on the merits is limited to upholding such submissions of the Parties as has been supported by sufficient proof of relevant facts and that ultimatelv it is the litigant who bears the burden of proof.

The fifth ground of Inadmissibility (paras. 102-108) put forward by the United States is based on the non-exhaustion of the established processes for the resolution of the conflicts occurring in Central America. It contends that the Nicaraguan Application Is incompatible with the Contadora process to which Nicaragua is a party.


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The Court recalls its earlier decisions that there is nothing to compel it to decline to take cognizance of one aspect of a dispute merely because that dispute has other aspects (United States Diplomatic and Consular Staff in Tehran case, I.C.J. Reports 1980, p. 19, para. 36), and the fact that negotiations are being actively pursued during the proceedings is not, legally, any obstacle to the exercise by the Court of its judicial function (Aegean Sea Continental Shelf case,I.C.J. Reports 1978, p. 12, para. 29). The Court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seising the Court; or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the Court of Nicaragua's Application.

The Court is therefore unable to declare the Application inadmissible on any of the grounds the United States has advanced.

Findings (paras.109-111)

Status of the provisional measures (para. 112)

The Court states that its Order of 10 May 1984 and the provisional measures indicated therein remain operative until the delivery of the final judgment in the case.

Operative provisions of the Court's Judgment

"THE COURT,

(1) (a) finds, by eleven votes to five, that it has jurisdiction to entertain the Application filed by the Republic of Nicaragua on 9 April 1984, on the basis of Article 36, paragraphs 2 and 5, of the Statute of the Court,

IN FAVOUR: President Elias; Vice-President Sette-Camara;Judges Lachs, Morozov, Nagendra Singh, Ruda, El-Khani, de Lacharriere, Mbaye, Bedjaoui; Judge ad hoc Colliard;

AGAINST: Judges Mosler, Oda, Ago, Schwebel andSir Robert Jennings;

(b) finds, by fourteen votes to two, that it has jurisdiction to entertain the Application filed by the Republic of Nicaragua on 9 April 1984, insofar as that Application relates to a dispute concerning the interpretation or application of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956, on the basis of Article XXIV of thatTreaty;

IN FAVOUR: President Elias; Vice-President Sette-Camara;Judges Lachs, Morozov, Nagendra Singh, Mosler, Oda,Ago, El-Khani, Sir Robert Jennings, de Lacharriere, Mbaye, Bedjaoui; Judge ad hoc Colliard;

AGAINST: Judges Ruda and SchwebelJ


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(c) f inds, by fifteen votes to one, that it has jurisdiction to entertain the case;

IN FAVOUR: President Elias; Vice-President Sette-Camara;Judges Lachs, Morozov, Nagendra Singh, Ruda, Mosler, Oda, Ago, El-Khani, Sir Robert Jennings, de Lacharriere, Mbaye, Bedjaoui; Judge ad hoc Colliard;

AGAINST: Judge Schwebel;(2) finds, unanimously, that the said Application is

admissible."

[l985l AUSTRALIAN INTERNATIONAL LAW NEWS 489

Annex to press communique 84/39

Summary of Opinions appended to the Judgment of the Court

Separate Opinion by Judge Nagendra Singh■ — ■ j

IWhile Judge Nagendra Singh has voted for the jurisdiction of the Court on

both counts, namely under the Optional Clause of Article 36, paragraphs 2 and 5, of the Statute of the Court, as well as under Article 36, paragraph 1, of the Statute on the basis of Article XXIV, paragraph 2, of the Treaty of Friendship, Commerce and Navigation of 21 January 1956, he has felt all along in those proceedings that the jurisdiction of the Court resting upon the latter, namely the Treaty, provides a clearer and a firmer ground than the Jurisdiction based on the Optional Clause of Article 36 (2) and (5) of the Statute. The difficulties which confront the Court in relation to the imperfect acceptance of the jurisdiction by Nicaragua and the unwilling response from the United States, as revealed by its declaration of 6 April 1984 intended to bar the Court’s jurisdiction in relation to any dispute with the Central American States for a period of two years.In addition there is also the question of reciprocity in relation to six months’ notice of termination stipulated in the United States declaration of 14 August 1946. On the other hand, the Treaty of 1956 does provide a clear jurisdictional base, although the field of the jurisdiction is restricted to disputes concerning the interpretation and application of that Treaty. However, the said jurisdiction is not subject to the

I multilateral treaty reservation of the United States, which is applicable to the Court’s jurisdiction under the Optional Clause of Article 36(2) of the Statute. Another helpful feature of the jurisdiction based on the Treaty of 1956 is that it would help to specify and legally channelise the issues of the dispute. The Parties will have to come to the Court under the Treaty, invoking legal principles and adopting legal procedures which would helpfully place legal limits to the presentation of this sprawling dispute, which could otherwise take a non-legal character, thus raising the problem of sorting out what is justiciable as opposed to non-justiciable matters being brought before the Court.He concludes, therefore, that the jurisdiction of the Court as based on the Treaty is clear, convincing and reliable. Nicaragua will now have to spell out clearly and specifically the violations of the Treaty involving its interpretation and application when the Court proceeds to consider the merits of the case.


Separate Opinion by Judge Ruda

The separate opinion of Judge Ruda, who concurred in the Court's finding that it had jurisdiction to entertain the Application, on tin basis of Article 36, paragraphs 2 and 5, of the* Statute of the Court, concerns three points: the Treaty of Friendship, Commerce andNavigation of 1936 as a basis of the Court's jurisdiction, the reservation contained in proviso (c) of the United States declaration of 1946, and the conduct of States as a basis for the Court's jurisdiction.

In regard to the first point, Judge Ruda maintains that the Parties have not fulfilled the conditions set forth in Article XXIV of the Treaty, which therefore cannot serve as a basis for the jurisdiction of the Court.

In regard to the second point, he considers that tin reservation contained in proviso (c) of the declaration is not applicable in tin- present instance because there is not only a dispute between the United States and Nicaragua but also a separate dispute between, on the one hand, Honduras, El Salvador and Costa Rica and, on the other hand, Nicaragua.

In regard to the third point, Judge Ruda is of the opinion that the conduct of States does not constitute an independent basis for the Court's jurisdiction if there has brim no deposit of a declaration accepting the optional clause with the Secretarv-Genera1 of the United Nations.

i ....Judge Ruda concurs in the Court's interpretation of Article 36, paragraph 5, of the Statute.

Separate Opinion by Judge Mosler

Judge Mosler does not agree with the opinion of the Court that it as jurisdiction on the basis of the Nicaraguan declaration of 1929

relating to the jurisdiction of the Permanent Court of International“S;;Ce:oJnThlS view the Court Possesses jurisdiction onlv on the basis

o the 1956 Treaty of Friendship, Commerce and Navigation between the Parties.


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ISeparate Opinion by Judge Oda

Judge Oda concurs in the conclusion of the Court solely because the case can be sustained under the 1956 Treaty between Nicaragua and the United States. Thus in his view the scope of the case should be strictly limited to any violation of specific provisions of that Treaty.

However, Judge Oda holds the firm view that this case cannot be entertained under the Optional Clause of the Statute, for the following two reasons. First, there is no ground for concluding that Nicaragua can be held to have legal standing in the present proceedings on the basis of the acceptance of the Optional Clause. Secondly, assuming that Nicaragua has legal standing in the present proceedings, the United States by its Shultz letter of 6 April 1984 effectively excluded, before the seisin of the case, the type of dispute at issue from its obligation under the Optional Clause in its relation to Nicaragua: when it is sought to bring a case before the Court under that clause, a provision fixing a certain duration, such as in the United States declaration, cannot, because of the rule of reciprocity, be invoked by another party whose declaration is terminable or amendable at any time.

Separate Opinion by Judge Ago

Judge Ago concurred in the Court’s finding that it had jurisdiction to entertain the merits of the case because of his conviction that a valid link of jurisdiction between the Parties was present in Article XXIV (2) of the Treaty of Friendship, Commerce and Navigation concluded between the United States of America and Nicaragua on 21 January 1956. That link, in his view, conferred jurisdiction upon the Court to consider Nicaragua’s claims implying breaches of that Treaty by the United States.

Judge Ago did not reach the same conclusion as regards the broader jurisdictional link presented by the Judgment as deducible from the facts concerning the acceptance by both Nicaragua and the United States of the Court’s compulsory jurisdiction by unilateral declaration, since he remained unconvinced of the existence of that link either in fact or in law.


Separate Opinion by Judge Sir Robert Jennings

The Court does not have jurisdiction under Article 36, paragraph 5, of its Statute because Nicaragua never became a party to the Statute of the Permanent Court; accordingly, its declaration made under Article 36 of that Court’s Statute cannot be one "still in force" in the sense of Article 36, paragraph 5, of the present Court’s Statute, because it never was in force. To attempt to support a different view on entries in reference books such as the Yearbooks of the Court is wrong in principle and unsupported by the facts relied on.

In any event the letter of 6 April 1984 from the United States Secretary of State bars jurisdiction because the recent practice shows that States have the right to withdraw or alter their optional clause declarations with immediate effect, at any time before an application to the Court based on the declaration.

Sir Robert concurs with the Court’s decision in respect of the United States multilateral treaties reservation; and the 1956 Treaty of Friendship, Commerce and Navigation.

Dissenting Opinion by Judge Schwebel

Judge Schwebel dissented from the judgment of the Court, which he found to be "in error on the principal questions of jurisdiction" involved. However, if the Court were correct in finding that it has jurisdiction, then the case would be admissible.

On the question of whether Nicaragua is party to the Court’s compulsory jurisdiction under its Optional Clause, and thus has standing, to maintain suit against the United States, Judge Schwebel concluded that it is not a party and hence lacks standing. Nicaragua has never adhered to this Court’s compulsory jurisdiction under the Optional Clause. It claimed that it nevertheless was party by reason of its 1929 declaration accepting the compulsory jurisdiction of the Permanent Court of International Justice. If the 1929 declaration had come into force, Nicaragua would be deemed party to this Court’s compulsory jurisdiction by operation of Article 36, paragraph 3, of this Court’s Statute. But Nicaragua’s 1929 declaration had never come into force. Under the terms of Article 36, paragraph 3, accordingly it has no period in which it still runs, since It never begun to run at all. It lias no period which has not yet expired since its declaration never was "inspired".

That this is the correct interpretation of Article 36, paragraph 3, is demonstrated not only by the plain meaning of its text, but by the drafting history of the article at the San Francisco Conference and by four cases of this Court. All, clearly and uniformly, construe1 Article 36, paragraph 3,as referring exclusively to declarations made under the Statute of the Permanent Court by which States were "bound", i.e, which were in force.


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The fact that, for almost 40 years, Nicaragua has been listed in the Yearbook of this Court and elsewhere as bound under the Optional Clause is not sufficient to overturn this conclusion or independently to establish Nicaragua’s standing. The Yearbooks have always contained or referred to a footnote warning the reader that Nicaragua's adherence to the Optional Clause was in doubt. Moreover, Nicaragua’s conduct has been equivocal. Not only has it failed to manifest its intent to be bound by this Court's compulsory jurisdiction by depositing a declaration. It also evaded obvious occasion for declaring that it recognized itself to be bound under Article 36, paragraph 5, as in the King of Spain case.

Even if, however, Nicaragua had standing to maintain suit under the Optional Clause, it may not do so against the United States. Assuming Nicaragua's declaration to be binding, Nicaragua could terminate it at any time with immediate effect. By operation of the rule of reciprocity, the United States likewise could terminate its adherence to the Court's compulsory jurisdiction, vis-a-vis Nicaragua, with immediate effect.Thus, while generally the United States could not terminate or modify its adherence to the Court's compulsory jurisdiction - as its notification of April, 1984 purports to do - on less than six months' notice, it could validly do so in relationship to Nicaragua.

In any event, even if the United States could not terminate its declaration vis-a-vis Nicaragua, by the terms of its multilateral treaty reservation to its declaration, the United States is entitled to exclude Nicaragua's reliance in its Application on four multilateral treaties, including the United Nations and OAS Charters, unless all other parties to the treaties affected by the decision are parties to the case. Those parties - as is demonstrated by the pleadings of Nicaragua in the case - are Honduras, Costa Rica and El Salvador. Since those States are not parties, Nicaraguan reliance on those four treaties should have been barred by the Court. However, the Court - erroneously in Judge Schwebel's view - has held that those other States cannot now be identified and appears to have put off the question of application of the reservation to the stage of the merits.

Finally, in Judge Schwebel's view, the Court 4oes not have jurisdiction over the claims made against the United States by Nicaragua in its Application by reason of their being party to a bilateral Treaty of Friendship, Commerce and Navigation. Nicaragua had failed to pursue the procedural prerequisites for invoking that treaty as the basis of the Court's jurisdiction. More than that, this purely commercial treaty has no plausible relationship to the charges of aggression and intervention made in Nicaragua's Application.


U.S. WITHDRAWAL FROM THE PROCEEDINGS INITIATED BY NICARAGUA IN THE INTERNATIONAL COURT OF JUSTICE*

The United States has consistently taken the position that the proceedings initiated by Nicaragua in the International Court of Justice are a misuse of the Court for political purposes and that the Court lacks jurisdiction and competence over such a case. The Court's decision of November 26, 1984, finding that it has jurisdiction, is contrary to law and fact. With great reluctance, the United States has decided not to participate in further proceedings in this case.

U.S. POLICY IN CENTRAL AMERICA

United States policy in Central America has been to promote democracy, reform, and freedom; to support economic development, to help provide a security shield against those - like Nicaragua, Cuba, and the USSR - who seek to spread tyranny by force; and to support dialogue and negotiation both within and among the countries of the region. In providing a security shield, we have acted in the exercise of the inherent right of collective self-defense, enshrined in the United Nations Charter and the Rio Treaty. We have done so in defense of the vital national security interests of the United States and in support of the peace and security of the hemisphere.

Nicaragua's efforts to portray the conflict in Central America as a bilateral issue between itself and the United States cannot hide the obvious fact that the scope of the problem is far broader. In the security dimension, it involves a wide range of issues: Nicaragua's huge buildup of Soviet arms and Cuban advisers, its cross-border attacks and promotion of insurgency within various nations of the region, and the activities of indigenous opposition groups within Nicaragua. It is also clear that any effort to stop the fighting in the region would be fruitless unless it were part of a comprehensive approach to political settlement, regional security, economic reform and development, and the spread of democracy and human rights.

THE ROLE OF THE INTERNATIONAL COURT OF JUSTICE

The conflict in Central America, therefore, is not a narrow legal dispute; it Is an inherently political problem that is not appropriate for judicial resolution. The conflict will be solved only by political and diplomatic means - not through a ' judicial tribunal. The International Court of Justice was never intended to resolve issues of collective security and self-defense and is patently unsuited for such a role. Unlike domestic courts, the World Court has jurisdiction only to the extent that nation-states have consented to it. When the United States accepted the Court's ccampulsory jurisdiction in 1946, it certainly never conceived of such a role for the Court in such controversies. Nicaragua's suit against the United States - which includes an absurd demand for hundreds of millions of dollars in reparations - is a blatant misuse of the Court for political and propaganda purposes. ;

As one of the foremost supporters of the International Court of Justice, the United States is one of only 44 of 159 member states of the United Nations that have accepted the Court's compulsory jurisdiction at all. Furthermore, the vast majority of these 44 states have attached to their acceptance reservations that substantially limit its scope. Along with the United Kingdom, the United

*(This is the text of the State Department Statement on the U.S. withdrawal frcm the ICJ proceedings.)


States is one of only two permanent members of the U.N. Security Council that have accepted that jurisdiction. And of the 16 judges now claiming to sit in judgment on the United States in this case, eleven are from countries that do not accept the Court's compulsory jurisdiction.

Few if any other countries in the world would have appeared at all in a case such as this which they considered to be improperly brought.

Nevertheless, out of its traditional respect for the rule of law, the United States has participated fully in the Court's proceedings thus far, to present its view that the Court does not have jurisdiction or competence in this case.

THE DECISION OF NOVEMBER 26

On November 26, 1984, the Court decided - in spite of the overwhelming evidence before it - that it does have jurisdiction over Nicaragua's claims and that it will proceed to a full hearing on the merits of these claims.

This decision is erroneous as a matter of law and is based on a misreading and distortion of the evidence and precedent:

- The Court chose to ignore the irrefutable evidence that Nicaragua itself never accepted the Court's compulsory jurisdiction. Allowing Nicaragua to sue where it could not be sued was a violation of the Court's basic principle of reciprocity, which necessarily underlies our own consent to the Gourt's compulsory jurisdiction. On this pivotal issue in the November 26 decision - decided by a vote of 11-5 - dissenting judges called the Court's judgement "untenable" and "astonising" and described the U.S. position as "beyond doubt." We agree.

- El Salvador sought to participate in the suit to argue that the Court was not the appropriate forum to address the Central American conflict. El Salvador declared that it was under armed attack by Nicaragua and, in exercise of its inherent right of self-defense, had requested assistance from the United States.The Court rejected El Salvador's application summarily - without giving reasonsand without even granting El Salvador a hearing, in violation of El Salvador's right and in disregard of the Court's own rules.

The Court's decision is a marked departure from its past, cautious approach to jurisdictional questions. The haste with which the Court proceeded to a judgment on these issues - noted in several of the separate and dissenting opinions - only adds to the impression that the Court is determined to find in favor of Nicaragua in this case.

For these reasons, we are forced to conclude that our continued participation in this case could not be justified.

In addition, much of the evidence that would establish Nicaragua's agression against its neighbors is of a highly sensitive intelligence character.We will not risk U.S. national security by presenting such sensitive material in public or before a Court that includes two judges from Warsaw Pact nations. This problem only confirms the reality that such issues are not suited for the International Court of Justice.

LONGER-TERM IMPLICATIONS OF THE COURT'S DECISION

The Court's decision raises a basic issue of sovereignty. The right of a state to defend itself or to participate in collective self-defense against agression is an inherent sovereign right that cannot be compromised by an inappropriate proceeding before the World Court.


We are profoundly concerned also about the long-term implications for the Court itself. The decision of November 26 represents an overreaching of the Court*s limits, a departurefrom its tradition of judicial restraint, and a risky venture into treacherous political waters. We have seen in the United Nations, in the last decade or more, how international organizations have become more and more politicized against the interests of the Western democracies. It would be a tragedy if these trends were to infect the International Court of Justice. Vie hope this will not happen, because a politicized Court would mean the end of the Court as a serious, respected institution. Such a result would do grievous harm to the goal of the rule of law.

These implications compel us to clarify our 1946 acceptance of the Court*s compulsory jurisdiction. Important premises on which our initial acceptance was based now appear to be in doubt in this type of case. We are therefore taking steps to clarify our acceptance of the Court’s compulsory jurisdiction in order to make explicit what we have understood from the beginning, namely that cases of this nature are not proper for adjudication by the Court.

We will continue to support the International Court of Justice where it acts within its competence - as, for example, where specific disputes are brought before it by special agreement of the parties. Cue such example is the recent case between the United States and Canada before a special five-member Chamber of the Court to delimit the maritime boundary in the Gulf of Maine area. Nonetheless, because of our commitment to the rule of law, we must declare our firm conviction that the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law.


No. 85/3 28 January 1985

Continenta1 She If (hiby an_ Arab Jamahiriya/Ma1ta) The Court resumes tJije oral proceedings

The following information is communicated to the Press by the Registry of the International Court of Justice:

On Monday 4 February 1 c>8S at 10 a.m., the Court will resume the oral proceedings in the case concerning Continental Shelf (Libyan Aral) Jamahiriya/ Malta).

It will first hear the experts called by the Libyan Arab Jamahiriya and by Malta. Each expert will be examined bv the Party ('ailing him, and cross-examined by tin* other Party.

Counsel for Malta and for the Libyan Arab Jamahiriya will in turn start and conclude the second round of oral argument.

The first round of oral argument took place from 26 November to 14 December 1984.

No. 85/2 28 January 1985

Solemn Declaration by two new Members of the Court


On Wednesday 6 February 1985, at 4 p.m., the Court will hold a public sitting in the Peace Palace, The Hague, for the purpose of enabling two new judges, elected by the General Assembly and the Security Council of the United Nations on 7 November 1984, to make the solemn declaration provided for in Article 20 of the Statute of the Court. Their term of office will begin on that day.

The new Members of the Court are Judges Ni Zhengyu (China) and Jens Evensen (Norway).

They replace Judges Hermann Mosler (Federal Republic of Germany) and Abdallah El-Khani (Syrian Arab Republic).

Three Members of the Court were re-elected on 7 November 1984 and do not have to make another solemn declaration: Judges Taslim 0. Elias (Nigeria), Manfred Lachs (Poland) and Shigeru Oda (Japan).

Short biographies of the new Members of the Court are annexed hereto.

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 498________________

NI ZHENGYU (CHINA)

Professor of Law and concurrently Dean of the Law Paculty and Dean of Studl s, Suzhou University Law School, 1948-1954.

Law work and related International activities

Member, Shanghai Bar Association (1931-present).

Member, International Prosecution Section, International Military Tribunal for the Par Bast (1946-1948).

Legal Counsel of Chinese Delegation to the Twenty-seventh Session of the United Nations General Assembly (1972).

Legal Counsel of Chinese Delegation to the United Nations Sea-bed Cosnittee (1972 and 1973).

Legal Counsel of Chinese Delegation to the Third United Nations Conference on th Law of the Sea (Caracas 1974, Geneva 1975, New York and Geneva 1977 and 1981 and New York 1982).

Member, International Law Convniaoion of the United Nations, since 1982.Publish d works

Writings

The Progress of Law from Chance to Choice (Stanford university, 1929)•The Hypothetical Nature of Law (China Law Review, 1931).The Judicial Machinery In United States and the United Kingdom (Nanjing, 1946).

Studies cn Problems of the Judiciary (China Law Journal, 1947}.The Question of Judicial Jurisdiction in International Law (World Knowledg

Publishing House, Beijing, 1964).Legal Problems in Collision of Ships Cases (Beijing, 1965).The History and Present Condition of the Problem Concerning the Breadth of

Territorial Sea (Beijing, 1971).Practices in the Delimitation of Marine Areas (Beijing, 1971).

On the Legal R«Sgime of the International Sea-bed Area (Beijing, 1972).

The International Struggle Relating to the Continental Shelf (Beijing, 1972)

Legal Status of the Air Spac* over the Territorial Sea (Beijing, 1976).Sopm* Problems of International Law Concerning the Outer Space (Chinese Yearbook of

International Law, 1982).

- 3 -

Theory end Treetic* Concerning Jurisdictional Infinities of state* (Chin»*s Yearbook of International Law, 1993).

Translation*

Trieat International Law, by J. A. C. Yhoaas (Beijing, 1963).

Int rnational Treaty Series 1917-1957 (jointly undertaken), (Beijing, 1959-1 <h.;

International Relatione of the Chinese Bapire, by I. B. Morse (jointly), (?>b 1956).

Diplomacy, by Harold Micolaon (jointly), (Beijing, 1957).

Consular Law and Fraction, by Luke T. Lee (jointly), (Beijing, 1975),

- 4 -

EVENSEN, Jens

(Norway)

Born S November 19.17, in Oslo, Norway. Married, 2 childran.Itasid nc t Vollsn in Asker, Norway.

Academic activities

l^w degree University of Oslo, 1$42. Fellowships at Minnaaota Law School and Columbia Law school 194 7. Rockefeller fallowship. Harvard Law School, 1952-195?

Ooct.Niu, In law (S.J.D.), Harvard Law School, 1968. Doctorata honoris causa Herlot-Hat* University, Edinburgh, 1947. Associate member of l*Institut d Droit Int rnational team 1971.

Lecturer and meaber of ths examining board at tha Law Faculty of tha University of Oslo, 1945-1973, in international law ate. Instructor OUnuductaut) at th Law Faculty, 1943-1962. Lectured at tha Hague Academy of international Lav 1965, c<n •Aspects ox International Law relating to Modern Radio Communications*. Lectur r at the NorId peace through Law Conferences in Hashington, 1965, and Geneva., 1967. Ad hoc lecturer at various universities.Prof sabanal career

Pciie« (superintendent and District Attorney ad hoc in high treason cas s, 1945-1946. Assistant Solicitor General 1956-1949. Barrister of the Supr me Court, of Moswij 1951, law practice 1949-1961.

I Director-General of tha Legal toepartaent of tha Ministry of Poraign AffairI Norway, 1961-1973. Chairman of the Norwegian Commission on Maritime Limits,

1961 present. Chairmen of the Petroleum Council of the Government of Norway, 1965-1979. Chairman of tit* Norwegian Committee on Legislation for the Fishery Scoer 1967-1969. Chairman of the Committee for Preparation of Norwegian

on a Safety Code for Production of Petroleum, the Laying of Pipslri t* jj Conservation stc on the Norwegian Continental Shalf, 1970-1973. Chairman of t.»*| Committee on Pries Negotiations concerning Petroleum Produced on the Norw gian { Continent*! shalf, 1971-1973.I! ifc-'iiwacf, taw Advisor to the Norwegian Ministry of rot it:;.[ Affairs, 1979 present 'i| Political appointmentsi

Minister for Commerce and Shipping, 1973-1974. Minister for the taw of tt l 1974-1978.S

- 5 -

Counsel and Co-agent in the Kannevig Case between Norway and the Unite*:*.Stat a# 1949-1956. Barrister and Counsel for the Government of Norway in th** Anglo/Norwegian Fishery Case before the International Court of Justice, 1949-1!)*1 Barrister and Counsel for the Government of Norway in the case concerning Cert^ti Norwegian Loans between Norway and France before the International Court of Justice# 1955-1957. Agent and Counsel for the Government of Norway before the International Court of Justice in the advisory opinion on Certain Expenses of t>< Unit d Nations# 1962.

Agent and Counsel for the Government of Norway before ad hoc international tribunals. Agent and Counsel for the Government of Norway before the European Cocomisalon of Busan Rights in the Iversen Case# 1962-1963. Agent and Couns 1 fo* th Government of Norway before the European Commission of Human Rights in the Gre k Case# 1967-1969.Diplomatic missions

Head of various delegations appointed by the Government of Norway for the negotiation of bilateral and multilateral agreements and conventions. Norwegian delegate to the Sixth Committee of the General Assembly of the United Nations.Head of the Norwegian delegation to the United Nations "Sea-bed Committee" (Ad hoc (subsequently permanent) Committee on the Peaceful Uses of the Sea-bed and occar. Floor beyond the Limits of National Jurisdiction)# Vice-Chairman, 1968-73.

Appointed Ambassador en Mission Spfclale, 1972# as head of the Norwegian Delegation to negotiate a Free Trade Agreement w**-h the European Economic Community, 1972-1973.

Head of the Norwegian delegation to the Third United Nations Conference on th? Law of the Sea 1973-1982# Vice-President. Chairman of the Norwegian delegation to the Preparatory Commission for the International Sea-bed Authority and for fchn International Tribunal for the Law of the Sea# 1983-present.

International legal and judicial office

Member of the International Law Commission# elected 1979# re-elected 198).

President of the Panel of the Arbitral Tribunal of INTELSAT 1967-1969# 1969-1971.

Member of the permanent Court of Arbitration, 1978-present.

Norwegian Member of the Conciliation Commission established pursuant to lb,- Agreement of 28 May 1980 between Norway and Iceland on Fishery and Continental Sh If Questionsr 1980-1981.

Judge ad hoc In the case between Tunisia and the Libyan Arab Jamahiriya ir th Continental Shelf Case before the International Court of Justice, 1979-1982.

Appointed Special Rapporteur of the International Law Commission cn the topics The Law of the Non-Kavigational Uses of Int* rnritional ^tPtconrr.es,1982-present.


No. 85/4 14 February 1985

Judge Nagendra Singh is elected President of the International Court of Justice

Judge Guy Ladreit de Lacharriere is elected Vice-President


Today, 14 February 1985, the International Court of Justice elected Judge Nagendra Singh (India) to be its President and Judge Guy Ladreit de Lacharriere (France) to be its Vice-President.

Their terms of office as President and Vice-President will come to an end in 1988. Their membership of the Court is due to expire in 1991.

Biographies of the new President and Vice-President are attached to this communique.

Annex 1 to Press Communique No. 85/4[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 505

Judge NAGENDRA SINGH '

(Judge ad hoc in the Appeal relating to the Jurisdiction of the ICAO Council; Member of the Court since 6 February 1973; re-elected as from 6 February 1982; Vice-President 1976-1979)

f

Born at Dungarpur, Rajasthan, on 18 March 1914.Son of His late Highness Maharawal Bijava Singhji, K.C.I.E., of

Dungarpur and Maharani Devendra Kunwar Saheba.(i) Education

B.A. (Agra); M.A., LL.D. (Cantab); M.A., B.Litt, LL.D. (Dublin);D.Sc. (Law) Moscow; D.C.L. (Delhi); D.Litt, D.Phil. (Calcutta); awarded the Viceroy’s Medal for the Diploma Examination and the Pinhey Medal for the B.A. examination of Agra University for standing first in first class; Barrister-at-Law (1942); awarded the Langdon Medal for distinction at the Bar-at-Law Examination by the Council of Legal Education, London (1943); Honorary Master of the Bench, Grays Inn, London (1974). Visiting Professor of International Law and Maritime Law at the Universities of Madras, Delhi and Bombay and Tribhuvan University, Nepal. Fellow of St. John's College, Cambridge (1975).

(ii) Career in the Government of India

Appointed to the Indian Civil Service by the Civil Service Commissioners of London after an open competition examination held by the Commission in 1938 at which was awarded the Cama Prize by St. John's College, Cambridge, for high distinction. Member of the Constituent Assembly of India (194/-48); District Magistrate and Collector in Madhya Pradesh (1938-46); Regional Commissioner, Eastern States (1948); Joint Secretary, Ministry of Defence (1955) and a member of the Imperial Defence College, London (I.D.C., 1951); Director-General of Shipping (1956-64) and Secretary to the Government of India, Transport Ministry (1965); Director-General All-India Radio (1949), Secretary to Government of India, Ministry of Information and Broadcasting (1964); Secretary to the President of India (1966-71); Chief Election Commis'sfbner to the Government of India (1972).

(iii) Judicial Field

Constitutional Adviser to the Government of Bhutan (1970), Justice of the Peace (Bombay, 1958); Supreme Appelate Authority, Prize Court Law of India (1972).

Judge ad hoc of the International Court of Justice in the Appeal relating to the Jurisdictiojiof the ICAO Council, 1972; elected Judge of the International Court of Justice by the General Assembly and Security Council of the United Nations as a Member of the Court for nine years from 6 February 1973; re-elected as Judge, International Court of Justice, from 6 February 1982 for another term of nine years; Vice-President, International Court of Justice (1976-79).

Member of "Institut de droit international" since 1963; Member of the Permanent Court of Arbitration, The Hague (since 1967); Member of the Governing Council of the International Institute for the

Unification...


Unification of Private Law (1963). Became in 1964 a member and in 1969 the leader of the Indian Delegation to the Afro-Asian Legal Consultative Committee; President of the Committee (1973); elected Vice-President of the Indian Law Institute (1983).

(iv) Environment

President of the Indian Academy of Environmental Law and Research - a national body affiliated as a Member of the I.U.C.N. with a regular vote; Deputy Chairman of the I.U.C.N. Commission on Environmental Policy, Law and Administration (CEPLA), Gland, Switzerland; Life Member of the Board of Governors of the International Council for Environmental Law (ICEL), Bonn, Germany; Member of the United Nations World Commission on Environment and Development, Geneva, 1984.

(v) Art and Culture

Invited by Unesco as Legal Expert (1983) for the revision of The Hague Convention 1954, "Protection of Cultural Property in the event of Armed Conflict"; invited by Unesco to address the 30th anniversary celebrations of the Convention on Cultural Property (1984). Founder of J.D.M. Trust on Protection of Cultural Heritage in Rajasthan. Life Member of the Indian National Trust for Art and Cultural Heritage.

(vi) International Organizations

Leader of the Indian delegations in various bilateral negotiations and at international conferences (1956-1973); Representative of India to the United Nations General Assembly in 1966, 1969 and 1971 for the Sixth Committee; Member (1966-1972) and Vice-Chairman (1969) of the International Law Commission; delegate to the Second Conference on the Law of the Sea (Geneva, 1960); Vice-Chairman (1969) and Chairman (1971) of the United Nations Commission on International Trade Law; Leader of delegation to the meetings of the Shipping Group of the United Nations Conference on Trade and Development (Geneva, 1965); Chairman of the Expert Group on Shipping of the Economic Commission for Asia and the Far East (1965); President of the Assembly of the Inter-Governmental Maritime Consultative Organization (1963-65); Vice-President of Brussels diplomatic conferences on maritime law (1961 and 1967);Chairman of the Legal and General Committee of the Load-Line Conference (London, 1966); President of the maritime session of the International Labour Organization (Genova, 1970); Legal Expert appointed by Atomic Energy Agency (1960); Chairman of the First Commission of the Conference of Government Experts of the International Committee of the Red Cross (Geneva, 1971 and 1972).

(vii) Miscellaneous

Accorded rank of Ambassador (1972); Padma Vibhushan (1973); Member of the Executive Council of the International Law Association (London); Member of the Executive Council of the Indian Institute of

Constitutional...


- 3 -

Constitutional and Parliamentary Studies; President of the Indian Society of International Law and of the Maritime Law Association of India; President of National Labour Law Association; elected Judge for the Templeton Foundation Awards (1982-85); elected Judge of the Court of Arbitration for Sports of the International Olympic Committee (IOC); LL.D. honoris causa of the Universities of Bhopal (1973), Kurukshetra (1975), Jodhpur (1976), Guru Nanak (1977), Punjab (1978) and Rajasthan (1982).

(viii) Human Rights and Peace

Member of the International Foundation for Human Rights, Paris. Author of publication "Human Rights and the Future of Mankind", 1981.

(ix) Publications

Termination of Membership of International Organisat ions, 1958;Nuclear Weapons and International Law, 1959; Amendments to IMCO Constituent Instrument, Sir Alladi Krishnaswami Endowment Lectures,Andhra University, Waltair, 1959; "The International Law Problems of Merchant Shipping", Recueil des cours, Academy of International Law,The Hague, 1962; Defence Mechanism of the Modern State, 1963;British Shipping Law Series, Vols. 8 and 13, on Shipowners, 1967, and International Conventions of Merchant Shipping, 1973; The Legal Regime of Merchant Shipping, Trimbak Teland Lectures, Bombay University, 1968; Recent Trends in the Development of International Law and 0rganisat ion, Nehru Lectures, Graduate Institute of International Studies, Geneva,1969; Human Rights and International Co-operation, King Tribhuvan Lectures, University of Nepal, 1969; The Concept of Force and Organisation of Defence in the ConsJ;J_tu t i ojn al His to ry of India, 1969; Achievements of UNCTAD I and II in the Field of Invisibles, 1969; India and International Law, 1969; The State Practice of India in the Field of International Law, Vol. I, 1973; Bhutan, 1978; Commereial Law of India, 1975; Maritime Flag and International Law, 1978; Kingsley Martin memorial lecture, University of Cambridge, 1978. Sir Benegal Rau memorial lecture on Juristic Concepts of Ancient Indian Polity (1979) and Motilal Nehru lecture on Human Rights (1980). Lecture at the Institute of International Law at Thessaloniki, Greece, on "The Role and Record at the UN High Commissioner for Refugees" (1983) published by Macmillan, 1984. Contributed articles to law journals in India and abroad.


Annex 2 to Press Communique No. 85/4

Judge Guy LADREIT DE LACHARRIERE

(Member of the Court since 6 February 1982)

Born at Marseilles, France, on 27 June 1919.

Doctor of Law; holder of the diploma of the Ecole des Sciences Poiitiques; Licencie es Lettres; holder of the certificate of the Ecole des Langues Orientales Vivantes; holder of the diploma of the Institut de Droit Compare (Paris) for Russian legal terminology and translation.

Attached to the French Embassy in Moscow (1946-1948). Head of the Office of International Organizations in the Directorate-General for Cultural Relations of the Ministry of Foreign Affairs (1948-1952). Permanent Delegate to Unesco and Secretary-General of the French delegation to the General Conference of Unesco (1948-1952).

Assistant Director of the Department of Social Sciences of Unesco (1952-1957).

From 1957 to 1979, occupied various positions in the Ministry of Foreign Affairs: served in and subsequently became Deputy Head of theDepartment of Economic Co-operation (1957-1963); Director of the Department of the United Nations and International Organizations (1964-1969); Director of Legal Affairs (1969-1979).

Counsellor of State on special service (1979-1982).

Represented France on several occasions at sessions of organs of the United Nations, in particular the Sixth Committee of the General Assembly.

Agent of France in the arbitration between France and the United Kingdom concerning the Delimitation of the Continental Shelf, in that of 1978 between France and the United States of America concerning the Franco-American Air Services Agreement, and in cases before the Court of Justice of the European Communities.

Vice-Chairman and permanent Head of the French delegation to the Third United Nations Conference on the Law of the Sea (1973-1982).

Member of the Permanent Court of Arbitration (1975-1981).

Has taught at the Institut d’Etudes Poiitiques of the University of Paris (since 1954), the Ecole Nationale d’Administration, the Hague Academy of International Law (1973), the Institut des Hautes Etudes Internationales and the Faculty of Law of the University of Paris II.

Author of numerous works on international questions, including La politique juridique exterleure, 1983.


AUSTRALIAN MEAT AND LIVESTOCK CORPORATION V. BLOCK ET AL: MEAT IMPORTCOUNCIL OF AMERICA INTERVENING *

United States Court of International Trade, Restani J. Court No.84-4-00535,6 June, 1984.

Voluntary Restraint Agreements are a significance barrier to freedom of international trade. Together with Order Marketing Agreements, they are frequently utilized to protect domestic industries from import protection, sometimes in breach of GATT obligations. Voluntary Restraint Agreements ("VRA'S") and Orderly Marketing Agreements ("OMA'S") are negotiated in the context that the importing country may, in their absence, impose unilateral restrictions. To this extent "Voluntary" is a misnomer. (A VRA differs from an OMA in that under the former, the importing country does not apply restrictions to enforce the agreement; see William R. Cline, Trade policy in the 1980*s, Institute for International Economics, Washington 1982 at 372). In this case, the Australian Meat and Livestock Corporation sought a preliminary injunction and summary judgement in the US Court of International Trade to restrain the US Secretary of Agriculture, the US Trade Representative and the US Secretary of State from negotiating VRA's in respect of meat imports into the United States. The plaintiff alleged that the "minimum access floor" of 1.25 billion pounds was a statutory guarantee of market access and hence the defendants could not negotiate VRA's for less than the minimum access floor.

Judge Restani found that the plaintiff had standing to bring the action, and that damage from the disruption of its trade was directly traceable to the defendants' acts. The plaintiffs action was also found to be "ripe" for adjudication, and was justiciable. On the merits, the question was essentially one of US statutory interpretation, and did not involve an examination of GATT obligations. Judge Restani held that neither the plain language of the statutory provision, nor the legislative history and the statutory scheme governing inport restrictions, supported the plaintiffs interpretation. However, in a significant passage, the Court

‘ has indicated that VRA's must be truly voluntary. As Judge Restani said, the minimum access floor is not "a dead letter. Defendants cannot unilaterally impose voluntary restraint agreements. They must choose not to voluntarily restrain imports and if they choose they may rely on theminimum access floor to limit any quotas___" An unanswered questionwould be how the floor would be allocated if only some exporting countries negotiated VRA's. Further, in the event that VRA's could not be negotiated, congression intervention to amend the statutory provision could not be ruled out. This possibility would ensure that VRA's could never be truly voluntary.[Plaintiffs motion for preliminary injunction and summary judgement denied, intervenor's cross-motion for summary judgement denied, defendant's cross- motion for summary judgement granted].

Clifford $ Wamke (Paul C. Wamke, Esq, and Bryan Jay Yolles, Esq, for plaintiffs.Barnes, Richardson § Colburn (Rufus E. Jarman, Jr., Esq, and Carl J. Laurino, Jnr ., Esq.) for Intevenor.Richard K. Willard Acting Assistant Attorney-General,David M. Cohen,~Dlrector, Commercial Litigation Branch and Velta A. Meln- brencis, Esq., for defendants.Bishop, Liberman, Cook, Purcell 8 Reynolds (Charles R. Johnston, Jr. Esq., Joseph Tasker, Jr., Esq., and Ronelle W. Adams, Esq.,) for amicus curiae.

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS 5Q8

OPINION and ORDER

RESTANI, Judge: In this action, plaintiffs seek a declaration thatdefendants may not negotiate voluntary restraint agreements concerning certain meat products that result in meat imports less than the minimum access floor contained in the Meat Import Act of 1979, Pub. L. No. 96-177, 93 Stat. 1291 (1979). Plaintiffs also seek an injunction to bar defendants from negotiating such agreements. Defendants contend that they have plenary authority to negotiate voluntary restraint agreements pursuant to the terms of the Agricultural Act of 1956 as amended, 7 USC para 1854 (1982), and that the Meat Import Act in no way limits this power.Defendants also contend that plaintiffs lack standing, the matter is not ripe for adjudication, the case poses non justiciable questions, and the court lacks jurisdiction over intervenor's claims.This action is before the court on plainiffs' motion for a preliminary injunction, and cross-motions for summary judgment, consolidated pursuant to Rule 65(a)(2). At oral argument the court ruled that the court has jurisdicton over intervenor's claim pursuant to 28 U.S.C S1581(i). See United States Cane Sugar Refiners' Association v. Block, 69 CCPA 172, 683 F 2d 399 (1982). The court reserved judgment on the standing, ripeness and justiciability of the issues presented, and on the merits of the motions.The President may negotiate voluntary restraint agreements limiting imports to the United States pursuant to S204 of the Agricultural Act of 1956. Section 204 provides in relevant part:

The President may, whenever he determines such action appropriate, negotiate with representatives of foreign governments in an effort to obtain agreements limiting the export from such countries and the importation into the United States [of] any agricultural commodity or product manufactured therefrom or textiles or textile products, and the President is authorised to issue regulations governing the entry or withdrawal from warehouse of any such commodity, product, textiles or textile products to carry out any such agreement.

7 USC pam.1854. Pursuant to this section, President Nixon delegated to the defendants in this action, the Secretary of Agriculture, the Secretary of State and the Special Representative for Trade Negotiations (now the United States Trade Representative), the authority to negotiate bilateral agreements restricting imports into the United States of the meat products at issue in this action. Executive Order 11539, 35 Fed. Reg.10733 (1970).Since 1970 defendants have negotiated a number of voluntary restraint

agreements limiting meat imports.

In 1979, Congress passed the Meat Import Act of 1979 (1979 act). The 1979 act amended the Meat Import Act of 1964 (1964 act), to restructure certain statutory limitations on imports of meat products. The 1979 act requires the Secretary of Agriculture every three months to estimate what quantity of meat products would be entered during the calendar year in the absence of import restrictions. If the Secretary's estimate is 110% or more of a statutorily determined level, then paragraph (f)(1) requires that:

if there is no limitation in effect under this section for such calendar year with respect to meat articles, the President shall by proclomaton limit the total quantity of * meat articles which may be entered during such calendar year, except that no limitation imposed under this paragraph for any calendar year may be less than 1,250,000,000 pounds. Meat Import Act of 1979 S2(f)(l).


Since the 1979 act was enacted, defendants have negotiated a number of voluntary restraint agreements with meat exporting countries to prevent meat imports from reaching the trigger level. In 1983, the trigger level was less than the 1.25 billion pound minimum access floor in subsection (f)(1). Defendants negotiated bilateral agreements with Australia, New Zealand, and Canada to limit imports of meat products below the 110% trigger level. This led to total meat imports in 1983 below the minimum access floor. In 1984 the trigger level once again is less than the 1.25 billion pound minimum access floor.

Plaintiffs contend that the minimum access floor contained in the 1979 act is a statutory guarantee of market access for imports. Thus plaintiffs argue that defendants have no authority to negotiate voluntary restraint agreements for less than the minimum access floor. Plaintiffs documented in detail the injuries they suffered in 1983 due to import restraints beneath the access floor. They contend that they face similar distruption this year because of the likelihood that imports will again be restrained below the minimum access level and that the current uncertainty over market access is presently damaging their business operations.

Initially the court must determine the issues of standing, ripeness and justiciability

Plaintiffs contend that they have standing pursuant to 28 U.S.C. 2631 (i) which reads:

Any civil actions of which the Court of International Trade has jurisdiction, other than an action specified in subsections (a)-(h), of this section, may be commenced in the court by any person adversely affected or aggrieved by agency action within the meaning of section 702 of title5.

Id. Defendants contend that plaintiffs are not within the zone of interests protected by the statutes at issue, that plant iff s' grievance is so generalized and broadly shared that the court should not hear it, and that plaintiffs have not demonstrated injury in fact.

The court finds plaintiffs clearly to be within the zone of interests protected by the Meat Import Act of 1979. Plaintiffs are trade associations representing meat importers and exporters as well as individual exporters whose commercial livelihood in large parts depends on meat imports to the United States. The 1979 act sets statutory limits on meat imports which directly affect their business. And the legislative history makes clear that one of the objectives of the 1979 act v/as " [t]o provide reasonable access to the U.S. market for imported beef and veal"S.Rep. 96-465, 96th Cong., 1st Sess.l, reprinted in 1979 U.S. CODE CONG.

& AD NEWS. 2654 (Senate Report). For similar reasons the court finds that plaintiffs' grievances are not generalized. Plaintiffs face damage to their commercial livelihood, not merely a generalized, abstract concern for an issue. United States Cane Sugar Refiners' Association v. Block, 5 CIT,544 F.Supp. 883 (1982), aff'd 69 CCPA 172, 683 F.2d 399 (1982)American Association of Exporters and Importers Textile and Apparel Group vT United States, 7 CIT Slip Op. 84-21 (March 14, 1984), app. pending No. 84-1060.

*(The text of the opinion and order, and plaintiffs pleadings, were supplied by Ms. Janet Spence, Economist, Australian Meat and Livestock Corporation, Sydney).

[1985 J AUSTRALIAN INTERNATIONAL LAW NEWS 510

Diplomatic Privileges and Immunities - Proceedings for divorce, custody and property distribution against foreign ambassador - Local real property bought for investment purposes - Whether ambassador immune - Vienna Convention on Diplomatic Relations 1961 Art 31 - The law of Australia

DE ANDRADE v DE ANDRADE (not yet reported)

(Family Court of Australia, 18 June 1984, Renaud,J)

SUMMARY: The facts: The respondent was the ambassador of a foreign country to Australia. The applicant, his wife, applied for dissolution of their marriage, for orders restraining the husband from disposing of certain property, for a property settlement pursuant to the dissolution, and for the guardianship of a child of the marriage. Pursuant to the Domicile Act 1982 (Cth) s.6, the wife was capable of acquiring a domicile of choice independent of her husband's: she claimed that the Family Court had jurisdiction to determine her applications under the Family Law Act 1975 (Cth) because she was at the time of the application domiciled and ordinarily resident in Australia. Counsel appearing by leave as amicus curiae asserted that the husband was immune from the court's jurisdiction in respect of all three applications, under Article 31(1) of the Vienna Convention on Diplomatic Relations 1961, given the force of law in Australia by the Diplomatic Privileges and Immunities Act 1967 (Cth) s.7. Part of the property claimed was a home unit purchased in the husband's name as an investment and let to tenants.

Held: The husband was immune by virtue of Article 31(1) in respect of all the applications. Both the divorce and custody applications were against the husband personally, and none of the exceptions to Article 31(1) applied. So far as the property application was concerned, the purchase of the home unit for investment was not 'commercial activity exercised by the diplomatic agent ... outside his official function' (Article 31(l)(c)) within the ordinary meaning of those terms. In any event the proceedings did not 'relate to' that activity in the required sense, being essentially matrimonial in character. Nor was the application 'a real action relating to private immovable property' within Article 31(l)(a); rather it involved in personam proceedings against the husband seeking an alteration of existing legal interests in property.

NOTE: With respect, Renaud J was plainly right in holding that the divorce proceedings themselves, and the custody proceedings as ancillary to the divorce proceedings, could not be proceeded with because of the respondent's diplomatic immunity. So far as the custody application was concerned, Renaud J commented (transcript, p.ll) that "it does indeed seem to me regrettable that there are children otherwise within the jurisdiction of this Court with whose welfare it cannot be concerned, but compassion does not, unfortunately, confer jurisdiction". However, there was some suggestion (transcript, p.10) that in some circumstances the wardship or protective jurisdiction of a Supreme Court might be available in the case of a child one of whose parents was a diplomat, (though this too might be doubtful). Equally, there seems no doubt that Renaud J's conclusion as to the property application was correct. Surprisingly, he took the view that the purchase and letting of a home unit

511[1985] AUSTRALIAN INTERNATIONAL LAW NEWS

for investment was not "commercial activity" as specified in article 31(1)(c) of the Vienna Convention. Had the proceedings related to a dispute over the purchase of the home unit, or over the terms of the lease, one would have thought it plain that the "commercial activity" exception to diplomatic immunity applied. However, the point here, as Renaud J held, was that the action was not one "relating to a commercial activity" in the required sense. Merely because property is in use for commercial purposes does not mean that any action whatever which has an impact or effect on that property relates to the commercial activity. The action here was clearly in the nature of matrimonial proceedings rather than an action relating to a commercial transaction.

JRC


Sovereign immunity - Foreign sovereign defendant in action relating to local land - Appearance and counterclaim by foreign sovereign - Whether submission to jurisdiction - Sultan of component state of Malaysia - The law of Australia

KUBACZ v SHAH [1984] WAR 156 (Kennedy J)

SUMMARY: The facts: The defendant, the Sultan of the State of Selangor within the Federation of Malaysia, agreed to buy land in Western Australia from the plaintiffs, but failed to complete the purchase. The plaintiffs claimed damages against the defendant, and obtained leave to serve the defendant outside the jurisdiction and in Malaysia. In response, the defendant's solicitor, pursuant to a general retainer and without express instructions, entered an unconditional appearance and filed a defence and a counterclaim for a declaration that the contract had been discharged. On the plaintiffs' claim for summary judgment the defendant pleaded sovereign immunity. The Department of Foreign Affairs in reply to a request from the plaintiff's former solicitors, stated inter alia that:

... Selangor forms only part of the Sovereign State of Malaysia. The Sultan is not the principal representative of Malaysia in its international relations. Accordingly, His Highness cannot be considered as the Head of a Sovereign State, as that term is normally understood in international diplomatic practice.

Held:

(1) The statement from the Department of Foreign Affairs did not address the crucial question whether the Sultan should be regarded as the sovereign head of a foreign state for the purposes of immunity. On the basis of the English authorities, he should for the purposes of the case be so regarded.

(2) However, the defendant had submitted to the jurisdiction by asserting the counterclaim and also by entering the unconditional appearance. It was not necessary to determine the extent of the submission (i.e. whether it extended to execution of the judgment) or the extent of immunity in the absence of submission. The application for summary judgment was granted.

NOTE: The rather curious procedural steps taken by the defendant's solicitor in this case made consideration of the underlying question of foreign state immunity unnecessary. The "counterclaim" relied on was merely a declaration that the contract had been discharged, and could equally have been raised as a simple defense. The fact that the defendant subsequently pleaded foreign state immunity may suggest some earlier misunderstanding, but it is doubtful whether that would have been sufficient to entitle the defendant to rescind the defense and counterclaim, even had clause 10(9) of the Australian Law Reform Commission's Draft Foreign States Immunities Act been in force. This clause, which in relevant respect follows the United Kingdom State Immunity Act 1978, provides that a step in proceedings taken by a person who did not know and could not reasonably have been expected to know of an immunity does not amount to submission if immunity is asserted without unreasonable delay.


The solicitors were at all times aware of the defendant's identity as Sultan of Selangor, and the existing decisions on the status of the Malay Sultanates (especially Duff Development Co. Ltd v The Government of Kelantan [1924] AC 797) were reasonably well known. However, the principal interest of the case revolved around two other points. First, Kennedy J was critical of the Department of Foreign Affairs' letter, quoted above, which inferred, if it did not suggest, that the Sultan was not entitled to foreign state immunity in international practice. Although there may have been reasons (not necessarily legal reasons) for the elevated status accorded to rulers of the Malay States under British protectorate earlier this century, it is far from clear that the same reasons apply today, and the Department of Foreign Affairs comment could well have been treated as an invitation to re-examine the applicability of the earlier, pre-independence, cases. However, the implicit invitation was sternly rejected. Kennedy J commented that the Department's

"letter does not appear to me to answer the critical question. The question is not whether the Sultan of Selangor is the principal representative of Malaysia in its international relations. He would not assert that he was. The question is whether he is the sovereign head of a "foreign state", which constitutes an integral unit of the Federation of the Malaysian States. On this question, I have the evidence from the High Commissioner for Malaysia ... together with the evidence of the defendant's private secretary. In neither case is the basis of the assertion [sc of immunity] clearly expressed. However, notwithstanding this, in all the circumstances, and in particular by reason of the conclusion which I have reached on the question of waiver, I am prepared to accept that, for the purposes of the present application, within the applicable principles, the defendant is a "foreign sovereign" having the necessary attributes of independence and sovereignty ... ". ([1984] WAR 156, 160, citing among other cases Duff Development.)

The real question was surely whether the Sultan of Selangor under the Malaysian Constitution performs governmental functions as the government of one of the constituent units of the Federation, or whether his title is a purely honorific one. On this point there was little or no evidence before the Court.

If Kennedy J was able to reject the invitation to reassess the Sultan's status for the purposes of foreign state immunity, he was also able to avoid deciding on the application of restrictive immunity within Australia, in particular as it related to contracts for the sale of local land. This was probably an exception even under the old common law rule, and it would certainly be under the common law rule enunciated in the Trendtex case [1977] QB 529, or under any likely Australian legislation; cf ALRC 24 Foreign State Immunity (1984) para.116.

JRC


Convention and Protocol relating to the Status of Refugees, 1951 and 1967 - determination of refugee status - determination a step in deciding to deny applicant an entry permit - whether decision under Convention and Protocol a decision ’under an enactment1 - whether applicant entitled to reasons for decision - the law of Australia

Mayer v. Minister for Immigration and Ethnic Affairs Davies J. (1984) 55 ALR 587(Federal Court of Australia (General Division))

The facts: - Australia is a party to the 1951 Convention and 1967 Protocol relating to the Status of Refugees, but these agreements have not been implemented as part of the law of Australia. Under theMigration Act 1958 (Cth) a non-citizen may not remain in Australia without an entry permit. An entry permit may not be granted to a non-citizen after his entry into Australia unless under the Act: oneground for such a grant is that . . .

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of theConvention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January1967." (s.6A (l)(c))

The applicant sought an entry permit relying on his status as a refugee. The Minister decided that he was not eligible for a grant of refugeestatus under s.6A (l)(c). The applicant sought reasons for that decision, under s.13 (1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which entitles persons affected by a range of administrative decisions made 'under an enactment* to seek judicial review of the decision on specified grounds. For the Minister it was argued that decisions as to refugee status were made under the prerogative pursuant to a treaty which was not part of the law of Australia, and were therefore not made 'under an enactment'.

Held: (at pp. 588, 589-90, 591-3). The determination of refugee statusfor the purposes of s.6A of the Migration Act 1958 was a statutory, not a prerogative decision. It was under the Act a necessary prerequiste to the grant of an entry permit and therefore a decision having legal effect. Accordingly it was a decision made 'under an enactment' within the meaning of s.13(1) of the 1977 Act, and the applicant was entitled to request reasons for the decision.


International Covenant on Civil and Political Rights 1966 - U N.Declaration on the Rights of the Child - Whether relevant as such in judicial review of a deportation decision - whether made relevant by Human Rights Commission Act 1981 (Cth) - the law of Australia

Kioa v. Minister for Immigration and Ethnic Affairs (1984) 55 ALR 669

(Federal Court of Australia (General Division)) Northrop, Jenkinson, Wilcox JJ.)

The facts: - The applicants, K and his wife, who were Tongan citizens, entered Australia on temporary entry permits in 1981, They overstayed, and steps were eventually taken to deport them under the Migration Act 1958 (Cth) s.18. In the meantime a daughter, E, had been born to them who was, by virtue of her birth in Australia, an Australian citizen and entitled to remain in Australia.

It was argued for K that the Minister's delegate had failed to take into account the interests of the daughter staying with her family in Australia, contrary to Articles 23 (1) and 24 (1) of the International Covenant on Civil and Political Rights of 1966, and Principles 1, 2, 4, 6, 7 and 8 of the Declaration of the Rights of the Child, 1959. Neither instrument is as such part of Australian law, but each is scheduled to the Human Rights Commission Act 1981 (Cth), the preamble of which declares that 'it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform' inter alia with those instruments.

Held: - (per Northrop, Wilcox JJ.) (at pp. 675-6, 677, 678-80, 681).The 1981 Act imposed no additional or special obligation on the Minister or his delegate to consider the human rights enumerated in the scheduled Covenant and Declaration; taken as such, and divorced from the general humanitarian principles enunciated therein (which were relevant in their own right), the Covenant and the Declaration were legally irrelevant;

(per Jenkinson J.) (at pp. 689-90). In reviewing a decision to deport a person, a court could properly be influenced by the view expressed in the Preamble to the 1981 Act; an exercise of power in conformity with the principles of the scheduled Covenant and the Declaration would, other things being equal, be preferred to an exercise of power inconsistent with those principles. But there was no indication that the Minister's delegates had failed to consider or weigh those principles in the balance in the present case.


United Nations non-self-governing territories - Cocos (Keeling) Islands - Act of self-determination - compulsory acquisition of land of former land-owner of territory - whether acquisition for 'public purpose1 - the law of Australia

Clunies-Ross v. Commonwealth of Australia (1984) 55 ALR 609 (High Court of Australia, Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.)

The facts: - The plaintiff was the former land-owner of the whole of Cocos (Keeling) Islands, a United Nations non-self-governing territory transferred from the United Kingdom to Australia in 1955. In 1978 the Commonwealth purchased from the plaintiff all his land on the Islands with the exception of the land on which his house and garden were situated. The agreement gave the plaintiff and his family certain rights of access to the foreshore and other land on the Islands. In 1980 a United Nations Visiting Mission recommended that further steps be taken to assist the Cocos Malay population of the Islands (brought there by the plaintiff's forebears and predecessors in title) to achieve greater economic and political independence from the plaintiff.

The Lands Acquisition Act 1955 (Cth) empowers the Commonwealth to compulsorily acquire land 'for a public purpose' on the payment of 'just terms' to be assessed under the Act. The Commonwealth intended toinstitute, but had not yet instituted, procedures to acquire the remainder of the plaintiff's land on the Islands under the Act. Itspurpose in doing so was not to use the land for any specific purpose, buteffectively to exclude the plaintiff and his family from the Islands. A United Nations-supervised Act of Self-Determination on the Islands waspending (it resulted, after the present proceedings had been commenced, in a vote for the integration of the Islands into metropolitan Australia).

The plaintiff sought a declaration inter alia that the proposed acquisition was not for a 'public purpose' within the meaning of the Act.

Held: (6-1, Murphy J. dissenting) Ther term 'public purpose' in the Actmeant only public purposes involving the specific use, active or passive, of the land in question: it did not extend to authorize action merelydepriving the former owner of the land, thereby achieving some more remote public purpose.


The majority judgement, having reached its conclusion on the literal interpretation of the Act, commented (at 614) that;

We have been at pains to stress in this judgement that the political or social desirability or otherwise of the deprivation of the plaintiff of his home is irrelevant to the proceedings in this court.The questions for this court on the demurrer are questions of law. It would be an abdication of the duty of this court under the Constitution if we were to determine the important and general question of law which the demurrer has has raised according to whether we personally agreed or disagreed with the political and social objectives which the Minister sought to achieve. That general question, translated into human terms, is whether a Commonwealth Act conferring a power to acquire land for a public purpose entitles the Executive to deprive any citizen of his home not because of a need of it for any active or

' passive purpose but so as to achieve some more remotepurpose of the Commonwealth by forcing him to leave the locality in which he lives. As a matter of constitutional duty, that question must be considered objectively and answered in this court as a question of law and not as a matter to be determined by reference to the political or social merits of the particular case. We have so considered and determined it. '

By contrast, Murphy J. (at 615-7) said:

Briefly the plaintiff claims that the purpose for which the land is intended to be acquired is:-(a) to bring about the exclusion of the plaintiff and his

family from the Cocos (Keeling) Islands and to force him and his family into exile from their home therein;

(b) by so doing, to prevent the plaintiff and his family from voting in and seeking to influence the voting of other persons in any expression of an Act of Self-Determination by the inhabitants of the Cocos Islands pursuant to the policies of the General Assembly of the United Nations as spelled out in the Declaration on the Granting of Independence to Colonial Countries and Peoples contained in General Assembly Resolution 1514 (xv) of 14 December 1960 or otherwise.

The plaintiff claims that this is not a public purpose. •There has been no recommendation to the Governor-General for acquisition of the land and therefore no statement of an approved public purpose by the Governor-General. The defendant Commonwealth and the Ministers state in the defence that the purpose is "political, social and economic advancement of the peoples of the Territory of Cocos (Keeling) Islands" and that is the basis upon which they intend to acquire the land. They demur, however, on the ground that, even if the claim by the plaintiff about purpose were correct, this would not entitle the plaintiff to succeed. It is notorious that for the purposes of the Act of Self-Determination the

islanders.......


616 AUSTRALIAN LAW REPORTS HC of A

islanders on the Cocos (Keeling) Islands had requested that the plaintiff be kept off the islands and the court was informed that before the demurrer was argued, the Act of Self-Determination by the islanders had occurred. In my opinion this point of the demurrer is hypothetical, premature (as no recommendation has been made to the Governor-General), and now moot (the Act of Self-Determination has occurred) and should not be decided. However, as the majority has dealt with it, I will set out my views, assuming, as is necessary on a demurrer, that the facts are as alleged by Mr Clunies-Ross.

The majority says that the political and social desirability or otherwise of the exclusion of the plaintiff and his family from the Territory of Cocos (Keeling) Islands is irrelevant to the proceedings in this court. I disagree. Of course, capricious acquisition of a citizen’s home would not be “for a public purpose”. That is not the case here. If political and social considerations indicate a rational public purpose for the acquisition of the land, then under the Act, the Commonwealth is entitled to acquire it with just compensation.

The United Nations Declaration referred to by the plaintiff stated that the General Assembly was conscious “of the need for the creation of conditions of stability and wellbeing and peaceful and friendly relations based on respect for the principles of equal rights and self-determination of all peoples” and recognized “that the peoples of the world ardently desire the end of colonialism in all its manifestations”. The Assembly therefore “solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations” and declared that “all peoples have the right to self-determination ... to freely determine their political status and freely pursue their economic, social and cultural development” and further that “immediate steps shall be taken ... to transfer all power to the peoples of . . . [dependent] territories, without any conditions or reservations, in accordance with their freely expressed will and desire”.

Pursuant to the Declaration, a United Nations Mission visited the Cocos (Keeling) Islands in 1974. It reported that “in taking note of Mr Clunies-Ross’ concept of self-government, [the Mission] deplores the fact that it does not allow for the true and free expression of the wishes of the population of Home Island”. The Mission stated that it “had the impression that he [Mr Clunies-Ross] was not prepared to abandon the anachronistic, feudal relationship between himself and the Cocos Malay community” and that it was aware “that the breaking down of a relationship of a feudal nature will be a difficult task”. The Visiting Mission considered that the Australian Government “should be encouraged to intensify its efforts ... to proceed by stages with the task of separating the community from the Estate” (paras 206-7).

A further Visiting Mission reported in 1980 that the Cocos Malay community had: “become more independent [of Mr Clunies-Ross] in both its political and social life. Nevertheless, some degree of interdependence, in particular in the economic field, still exists between the two owing to the fact that Mr Clunies-Ross retains a prominent place in the life of the community, thereby creating uneasiness on the islands. The view was expressed that this interdependence should be discontinued. The Mission


is of the opinion that the administering power should take necessary steps to deal with this matter effectively” (para 201).

If, as claimed, the purpose of acquisition by the Commonwealth and the Ministers would be to take the former feudal manor, to remove the former

5 feudal overlord and his family, in order that they should not participate in and influence an Act of Self-Determination by the inhabitants of the island, 1 find no basis on which the court can properly conclude that it would not be for a public purpose, irrespective of all political and social considerations which might persuade the Ministers and the Governor-General that it

10 would be for a public purpose. It would be open to the defendants to take the view that if a free Act of Self-Determination was to be achieved, it would be necessary to exclude the plaintiff and his family.

It was open to the defendants to decide that acquisition of the former feudal manor to extinguish the taint of feudalism and colonialism from an

15 island territory, was for a public purpose. The history of eminent domain shows that a classic public purpose for acquisition of land has been to eradicate feudal incidents and relics. Whether the court agrees with the political and social considerations which lead to such an opinion is not relevant. The merits of the opinion are for the government, not the court,

20 unless it would be irrational to regard the acquisition as one for a public purpose.


LATE ITEMS

MULTILATERAL FISHERIES TALKS, PORT MORESBY : JOINT COMMUNIQUE

The following joint communique was issued at the conclusion of the third round of negotiations between States of the Forum Fisheries Agency and the USA on a multilateral fisheries treaty/ 8 March 1985.

REPRESENTATIVES GF THE GOVERNMENTS OF THE UNITED STATES AMD OF 13 SOUTH PACIFIC FORUM FISHERIES AGENCY STATES (AUSTRALIA, FEDERATED STATES OF MICRONESIA, FIJI, KIRIBATI, NAURU, NEW ZEALAND, PALAU,PAPUA NEW GUINEA, SOLOMON ISLANDS, TONGA, TUVALU, VANUATU AND WESTERN SAMOA) HAVE CONCLUDED A THIRD ROUND OF NEGOTIATIONS ON A FISHERIES TREATY, UNDER WHICH UNITED STATES TUNA VESSELS MAY FISH IN THE FISHING ZONES OF SOUTH PACIFIC STATES. THE NEGOTIATIONS WERE HELD IN PORT MORESBY, PAPUA NEW GUINEA, FROM A TO 8 MARCH 1935.

A SUBSTANTIAL STUMBLING BLOCK IN THE WAY OF POSITIVE TALKS WAS OVERCOME AT THE COMMENCEMENT OF THIS ROUND WHEN THE UNITED STATES FORMALLY ADVISED THAT AN EMBARGO AGAINST THE IMPORTATION OF TUNA FROM SOLOMON ISLANDS INTO THE UNITED STATES WAS TO BE LIFTED, AND THAT THIS DECISION WAS 'IRREVOCABLE'.

THE TALKS WERE MOST FRUITFUL, WITH MANY OF THE AREAS 0^ DIFFERENCE 3ETWEEN THE UNITED STATES AND THE FORUM FISHERIES AGENCY STATES BEING REMOVED, AND OTHERS CLARIFIED. THE WAY IS NOW CLEAR FOR DISCUSSION OF MORE TECHNICAL ISSUES IN THE NEXT BOUND, WIT!! THE EXPECTATION THAT A REGION-WIDE AGREEMENT WILL BE FINALIZED SOON.


UNITED STATES EXTRATERRITORIAL JURISDICTION - ANTI TRUST LAW

99th CONGRESS Q aam1st Session 0, /

To amend the Sherman Act and the Clayton Act to modify the application of such Acts to international commerce.

IN THE SENATE OF THE UNITED STATES *

February 6 (legislative day, January 21), 1985

Mr. DeConcini introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILLTo amend the Sherman Act and the Clayton Act to modify the

application of such Acts to international commerce.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 That this Act may be cited as the “Foreign Trade Antitrust

4 Improvements Act of 1985”.

5 Sec. 2. Section 7 of the Sherman Act (15 U.S.C. 6a) is

6 amended by—

7 (1) inserting “(a)” before “This Act”; and

8 (2) adding at the end thereof the following new

9 paragraph:

* (Copy provided through the services of BNA International Inc., London, publishers of US Business Briefing).


2

1 “(b) Whenever a motion to dismiss for lack of subject

2 matter jurisdiction under this section shall be made in any

3 action under the antitrust laws, it shall be the duty of the

4 judge designated to hear and determine the case to hear and

5 determine such motion, after such discovery or other pro-

6 ceedings directly related to the motion as the court deems

7 appropriate, before conducting or permitting the parties to

8 conduct any further proceedings in the action.’’.

9 Sec. 3. The Clayton Act (15 U.S.C. 12 et seq.) is

10 amended by adding after section 20 the following new sec-

11 tion:

12 “international commerce

13 “Sec. 21. (a) Notwithstanding any other provision of

14 the antitrust laws or any provision of any State laws similar

15 to the antitrust laws, in any action brought by any person or

16 State under the antitrust laws or similar State laws and in-

17 volving trade or commerce with a foreign nation, the court

18 shall enter a judgment dismissing such action whenever it

19 determines that the interests of the United States served by

20 the action are outweighed by the interests of one or more

21 foreign nations adversely affected by the action. Upon a re-

22 quest by the court, the Attorney General shall appear to set

23 forth the views of the United States as to the effects of the

24 action on the interests of the United States and on any affect-

25 ed foreign nation.

•S 397 is

3

1 “(b) Whenever a motion to dismiss for interference with

2 foreign national interests is made under this section in any

3 action under the antitrust laws, it shall be the duty of the

4 court, after such discovery or other proceedings directly re-

5 lated to the motion as the court deems appropriate, to hear

6 and determine such motion before conducting or permitting

7 the parties to conduct any further proceedings in the

8 action.”.

9 Sec. 4. Section 12 of the Clayton Act is amended by—

10 (1) inserting “(a)” before “That suit”; and

11 (2) adding at the end thereof the following:

12 “(b) The doctrine of forum, non conveniens shall be ap-

13 plicable in any suit, action, or proceeding under the antitrust

14 laws that involves trade or commerce with a foreign nation,

15 and nothing contained in this section or any other venue pro-

16 vision applicable to such suits, actions, or proceedings shall

17 be construed to prevent dismissal of such suits, actions, or

18 proceedings on the ground of forum non conveniens.”.19 Sec. 5. The Clayton Act is amended by adding after

20 section 4H the following:

21 “foreign trade

22 “Sec. 41. (a) Notwithstanding sections 4 and 4C, and in

23 lieu of the relief specified in such sections, and notwithstand-

24 ing any provision of any State law providing damages for

25 conduct similar to that forbidden by the antitrust laws, any

26 person or State entitled to recovery on a claim under such

•S 397 IS


4

1 section or provision shall recover (1) the actual damages sus-

2 tained by such person or, in the case of a claim under section

3 4C, the total damage as described in subsection (a)(1) of such

4 section, (2) interest calculated at the rate specified in section

5 1961 of title 28, United States Code, on such actual damages

6 or total damage as specified in subsection (d) of section 4 of

7 the National Cooperative Research Act of 1984 (15 U.S.C.

8 4303(d)), and (3) the cost of suit attributable to such claim,

9 including a reasonable attorney’s fee, if—

10 “(A) such claim results from conduct occurring in

11 the course of trade or commerce with a foreign nation,

12 “(B) such claim is determined by the court to

13 affect adversely and substantially the interests of a for-

14 eign nation, and

15 “(C) the court determines that the adverse effect

16 of the claim on the interests of a foreign nation would

17 be substantially reduced if the claim were limited to

18 actual damages or total damage as provided herein.

19 Upon a request by the court, the Attorney General shall

20 appear to set forth the views of the United States as to the

21 effects of the claim and of the possible limitation of damages

22 authorized herein on the interests of foreign nations.

23 “(b) Whenever a motion to limit damages as provided in

24 this section is made in any action under the antitrust laws, it

25 shall be the duty of the court to hear and determine such

5

1 motion, after such discovery or other proceedings directly re-

2 lated to the motion as the court deems appropriate, before

3 conducting or permitting the parties to conduct any further

4 proceedings in the action.”.

O

[

•S 397 IS


OFFICIAL SECRETS ACT - CLIVE PUNTING *

DURING SUPPLEMENTARY QUESTIONS TO THE PRIME MINISTER MRS H AR 0 Ar E T THATCHER IN THE COMMONS ON 12 FEBRUARY 19 2,5 MR ONSLOW ASKED;

while MY RIGHT HONOURABLE FRIFND nil ST BE RIGHT TO RESIST PDF S' |; RE FOR HASTY REFORM OF THE OFFICIAL SECRETS ACT ON THE LASTS OF A SINGLE VERDICT, DOES SHE HOT AGREE THAT IT IS ESSENTIAL THAT MINISTERS AND CIVIL SERVANTS SHOULD BE ABLE TO WORK TOGETHER WITH I!i AN ACCEPTED FRAMEWORK OF MUTUAL CONFIDENCE AMD TRUST? WILL SHE GIVE SOME CONSIDERATION TO SETTING UP A SPECIAL COMMITTEE OF EXPERIENCED AND RESPONSIBLE PRIVY COUNCILLORS TO PEVIEU THE MATTER AMD REPORT BACK TO THE HOUSE AS SOON AS POSSIBLE?

THE PRIME MINISTER: I AGREE VII Til MY HONOURABLE FRIEND THAT ITIS ABSOLUTELY VITAL THAT THERE SHOULD BE TRUST AND CONFIDENCE BETWEEN MINISTERS AND CIVIL SERVANTS, I MOTE THAT A FORMER PRIME MINISTER SAID IN 1976:

• 'THERE MUST BE ABSOLUTE CONFIDENCE THAT PAPERS ANDDISCUSSIONS THAT TAKE PLACE ARE KEPT sIIIhIM THE CIRCLE TO

' WHOM THEY ARE GIVEN.''-(OFFICIAL REPORT, 17 JUNE 1976., VOL. 913, C. 739.)

1, THEN IN OPPOSITION, SUPPORTED HIM.

1 SHALL CONSIDER v) HAT MY HONOURABLE FRIEND SAID ABOUT THE OFFICIAL SECRETS ACT, BUT I SHALL REMIND HIM THAT THE FRANKS COMMITTEE CONSIDERED THE OFFICIAL SECRETS ACT, AND THAT 0!) THE COMMITTEE THERE WERE THREE PRIVY COUNCILLORS, THE PERSON WHO HAS LATER TO BE A LABOUR HOME SECRETARY, AND A NUMBER OF OTHER PEOPLE.later there was a white paper upon that act and later, in our Tint,THERE WAS A PROPOSED BILL BROUGHT BEFORE THE OTHER PLACE, WHICH DID NOT FIND FAVOUR IN PARLIAMENT.

MR. K1NN0CK: CONFIDENCE AND TRUST BETWEEN CIVIL SERVANTS ANDMINISTERS IS ESSENTIAL, BUT SO IS CONFIDENCE AND TRUST BETWEEN THE GOVERNMENT AND THE HOUSE OF COMMONS, AMD THAT IS WHAT IS AT STAKE HERE. YESTERDAY, A VETTED JURY UNANIMOUSLY CONCLUDED THAT -P . Ci.. I PONT i i1G HAD NOT BROKEN THE LAW BY EXPOSING THE ATTEMPTS ‘iF i ’ 1 S 7 To MISLEAD PARLIAMENT AMD THE PUBLIC DELIBERATELY. DID THE PRIME MINISTER KNOW ABOUT THE PROPOSED DECEPTION OF PARLIAMENT, AND IF SHE DID, DID SHE ENDORSE IT? IF SHE DID MOT KNOW ABOUT IT, WILL SHF. NOW CONDEMN IT IN THE STRONGEST POSSIBLE TERMS? WHAT WAS nr • INV0lvEMEUT IN THE DECISION TO PROSECUTE MR. POUTING?

THE PRIME MINISTER: TO TAKE THE LAST POINT FIRST, AS THE RIGHTHONOURABLE GENTLEMAN KNOWS FULL WELL, MINISTERS HAVE ABSOLUTELY NO ROLE IN DECIDING WHETHER TO PROSECUTE. THAT IS THE DUTY OF THE ATTORNEY-GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS. MINISTERS HAD NO ROlE WHATSOEVER IN THE PROSECUTION.

* (This document was provided by Mr M.V. Hone, "UK High Commissioner, Canberra).


PAGE TWO V S011/P.5_______________________________WEDNESDAY 13 FEBRUARY 1905

WITH REGARD TO THE RIGHT HONOURABLE GENTLEMAN'S FIRST POINT, NAY1 MAKE IT QUITE CLEAR THAT WE HAVE PUT A FULL ACCOUNT ON RECORD, iMUST HAKE IT CLEAR THAT MINISTERS IN POWER HAVE ALWAYS TAKEN, AMD 1 HOPE '-'ILL ALWAYS TAKE, THE VIEW THAT INFORMATION THAT WOULD HAVE SOME SECURITY VALUE TO THOSE WHO THREATEN OUR PEOPLE OR OUR TERRITORY IS NOT RELEASED. OUR FIRST REGARD IN CONSIDERING WHETHER TO RELEASE INTELLIGENCE INFORMATION IS THE SAFETY OF HER MAJESTY'S ARMED FORCES.

SIR PETER BLAKER: HAS MY RIGHT HONOURABLE FRIEND'S ATTENTIONBEEN DRAWN TO THE FACT THAT MR. POUTING SAID IN COURT THAT THERE WAS A GOOD MILITARY CASE FOR ATTACKING THE BELGRAUO AND THAT HE HAD SEENNOTHING TO SUPPORT THE CONTENTION THAT THE SHIP WAS SUNK TO END APERUVIAN PEACE PLAN? DOES THAT NOT MEAN THAT THE CONTENTION THAT THE HONOURABLE MEMBER FOR LINLITHGOW (MR. DALYELL) WISHED TO PROVE WHEN HE STARTED HIS LINE OF QUESTIONING WAS WRONG?

THE PRIME MINISTER: THE BELGRANO WAS SUNK FOP THE PROTECTIONOF OUR ARMED FORCES, OUR NAVAL FORCES, THE HERMES AND THE INVINCIBLE. MAY I MAKE IT CLEAR TO EVERYONE THAT, SO LONG AS THIS GOVERNMENT ARE IN POWER, THE PROTECTION OF OUR ARMED FORCES WILL BE OUR PRIME CONSIDERATION.

MR. DAVID STEEL: HAS THE PRIME MINISTER NOTED THE DETERMINATIONOF THE JURY TO DISTINGUISH ClEARLY BETWEEN LOYALTY TO A GOVERNMENT AND THE SECURITY OF THE STATE? WILL SHE THEREFORE WELCOME, INDEED REJOICE AT, THIS REAFFIRMATION OF BASIC DEMOCRATIC VALUES BY A CROSS-SECTION Of THE BRITISH PEOPLE AND WILL SHE DEMAND HIGHER STANDARDS FROM HER MINISTERS?

THE PRIME MINISTER: 1 ACCEPT THE DECISION OF THE COURT - OFCOURSE I DO. 1 ALWAYS HAVE - BUT I STRESS THAT TWO THINGS ARE VITAL. THE FIRST IS THAT MINISTERS ARE ABLE FULLY TO TRUST CIVIL SERVANTS.I HOPE THAT THE RIGHT HONOURABLE GENTLEMAN AGREES WITH THAT AND DOES NOT IN ANY WAY ENDORSE OR CONDONE THE BREACH OF TRUST THAT OCCURRED.

SECONDLY, I WHOLLY AND UTTERLY INSIST THAT THERE ARE SOME THINGS IN SECURITY AND INTELLIGENCE WHICH, FOR THE SAFETY OF OUR FORCES OR THE SAFETY OF THE STATE, THE GOVERNMENT MUST KEEP SECRET. TO PUT IT IN SPECIFIC TERMS:

’’THE GOVERNMENT HAS CONCLUDED THAT INFORMATION RELATING TO SECURITY AND INTELLIGENCE MATTERS IS DESERVING OF THE HIGHEST PROTECTION WHETHER OR NOT IT IS CLASSSIF1ED. THIS IS PRE-EMINENTLY AN AREA WHERE THE GRADUAL ACCUMULATION OF SMALL ITEMS OF INFORMATION APPARENTLY TRIVIAL IN THEMSELVES COULD EVENTUALLY CREATE A RISK FOR THE SAFETY OF AN INDIVIDUAL OR CONSTITUTE ASERIOUS THREAT TO THE INTERESTS OF THE NATION AS A WHOLE.''

THAT WAS THE VIEW Of THE LAST LABOUR GOVERNMENT WHEN THEY WERE IN POWER, SET OUT IN A WHITE PAPER BROUGHT BEFORE THIS HOUSE BY THE THEN HOME SECRETARY IN 1978. IT IS SOMETHING THAT WE ENDORSE.

MR. DALYELL: WHO WAS IT WHO ALTERED SIR JOHN FIELDHOUSE'SOFFICIAL COMMANDER-IN-CHIEF'S REPORT WITHOUT SIR JOHN FIELDHOUSE'S KNOWLEDGE?

THE PRIME MINISTER: I UNDERSTAND FROM ADMIRAL F1ELDH0USE THATDURING THE DRAFTING OF HIS DISPATCH AT NORTHWOOD HE QUERIED THE DATEIN THE SENTENCE ON THE DETECTION OF THE BELGRANO BUT AGREED THAT ITSHOULD BE LEFT AS 2 MAY IN ORDER TO PROTECT SENSITIVE OPERATIONAL AND INTELLIGENCE INFORMATION. THE SECOND OF MAY WAS THEREFORE THE DATE IN THE DESPATCH THAT ADMIRAL FIELDHOUSE SUBMITTED TO THE MINISTRY OF DEFENCE. IT WAS NOT ALTERED BY OFFICIALS THERE.


PAGE THREE V 5011/85 ____________________________ WEDNESDAY 13 EEBRU ARY 192 5

MR CLIVE POUTING

ON THE SAME DAY THE ATTORNEY GENERAL, SIR MICHAEL HAVERS MADE THE FOLLOWING STATEMENT:

WITH PERMISSION, MR. SPEAKER, i WOULD LIKE TO MAKE A STATEMENT ON MY DECISION TO PROSECUTE MR. POUTING . ON 13 AUGUST 1984, CERTAIN FACTS WERE ARAVIN TO THE ATTENTION OF THE DIRECTOR OF Pilf'.L 1C PROSECUTIONS BY THE MINISTRY OF DEFENCE. IN MY ABSENCE. THE DIRECTOR CONSULTED MY HONOURABLE AND LEARNED FRIEND THE SOI ICITOR-C.ENFRAI THE SAME DAY. ON 16 AUGUST 1984, A REPORT BY THE MINISTRY 0 F DEFENCE POLICE WAS SENT TO THE DIRECTOR. MY HONOURABLE AND LEARNED FRIEND AND THE DIRECTOR CONSIDERED THAT REPORT ON 17 AUGUST, AND BOTH FORMED THE VIEW THAT THIS WAS A SERIOUS BREACH OF DUTY AMD TRUST BY A SENIOR CIVIL SERVANT. THEY DECKED TO CONSULT ME AND T WAS TELEPHONED ON THE SAME DAY. THE FACTS AS REPORTED BY THE DIRECTOR WERE EXPLAINED TO HE. THE NATURE OF THE DOCUMENTS WHICH HAD BEEN COMMUNICATED WAS DESCRIBED AND I WAS TOLD THAT THE DIRECTOP MU- THE SOLICITOR-GENERAL ADVISED A PROSECUTION. HAVING CONSIDERED THE FACTS MYSELF, 1, TOO, DECIDED THAT THE CASE FELL WITHIN MY PUBLISHED GUIDELINES AND THAT THERE SHOULD BE A PROSECUTION. NEITHER i NOR THE SOLICITOR-GENERAL NOR ANY OF MY OFFICIALS SOUGHT THE VIEW OF OR CONSULTED ANY OTHER MINISTER, NOP WAS THE VIEW OF At: Y OTHER MINISTER CONVEYED TO US BEFORE THE. DECISION WAS TAKEN.


SOUTH AFRICA - MOZAMBIQUE - NKOMATI ACCORD*

JOINT PRESS STATEMENT BY BOTH THE DELEGATIONS OF SA AND THE PEOPLES REPUBLIC Of MAZAMBIQUE

THE GOVERMENT DELEGATIONS OF THE REPUBLIC OF SOUTH AFRICA AND THE PEOPLES REPUBLIC OF MAZAMBIQUE MET IN MAPUTO ON MARCH 14 , 1985 FOR THE SEVENTH SESSION OF THE JOINT SECURITY COMMISION ESTABLISHED BY TH ENKOMATI ACCORD.

BOTH DELEGATIONS AGREED THAT IT WAS ESSENTIAL FOR THE DEVELOPMENT OF THE WHOLE SOUTHERN AFRICAN REGION THAT THE NKOMATI ACCORD SHOULD BE FULLY IMPLEMENTED

BOTH GOVERMENTS ARE CONCERNED AT THE INCREASE IN VIOLENCE IN MOZAMBIQUE AND PROPOSALS WERE DISCUSSED AS TO WAYS AND MEANS OF BRINGING AN END TO IT.

THE OPPORTUNITY WAS USED TO REVIEW PROGRESS MADE IN AREAS OF COOPERATION AND CERTAIN PROPOSALS WERE MADE WHICH WILLHAVE TO BE CONSIDERED BY BOTH GOVERMENTS.

BOTH DELEGATIONS RE-ITERATED THEIR GOVERMENTS CONTINUED COMMITMENT TO AND FULL SUPPORT OF THE NKOMATI ACCORD.

THE DELEGATIONS COMPRISED OF : 1. RSA : .RF BOTHA , MINISTER OF FOREIGN AFFAIRS , GENERAL M MALAN , MINISTER OF DEFENSE , MR D J LOUIS NEL , DEPUTY MINISTER OF FOREIGN AFFAIRS , MR ADRIAAN VLOK , DEPUTY MINISTER OF DEFENSE AND LAW AND ORDER ,. DR NEIL BARNARD , DIRECTOR GENERAL OF NATIONAL INTELLIGENCE SERVICE , VICE ADMIRAL W N DU PLESSIS , SADF , BRIGADIER J A KLOPPER , SADF , BRIGADIER J VAN DER MERWE , SAP , MR C F PATERSON , SA TRADE REPRESENTATIVE IN MOZAMBIQUE AND SENIOR OFFICIALS OF THE DEPARTMENTS OF FOREIGN AFFAIRS , DEFENSE , POLICE AND NATIONAL INTELLIGENCE.

2. MOCAMB1QUE '

COL S. VIEIRA, MINISTER OF SECURITY AFFAIRS, DR. T. HUNGVANA,DEPUTY MINISTER INTERIOR, LT. COL. F. HONWANA, SPECIAL ASSSISTANT OF THE PRESIDENT, LT. COL. I. MANGVEIRA, MOZ. DEFENCE FORCE, MR. A.J.N CHISSANO, DIRECTOR OF THE PRESIDENCY, MR. P. COMNISSARIO, DIRECTOR OF MINISTRY OF FOREIGN AFFAIRS, MR. J.B. VEDOR, NATIONAL DIRECTOR INTERIOR, MAJ. G. CHONGO, CHIEF OF STAFF, BORDER GUARDS AND MAJ M.G. CHITUPILA, NATIONAL INTELLIGENCE SERVICE AS WELL AS SENIOR OFFICERS OF THE MOCAMBIQUEN GOVERNMENT. *

* (The Joint Statement, and the South African document, "Nkomati: The First Year - A Diary of Developments", were provided by

Mr W.Bosnan, South African Embassy, Canberra).


•UKOMATI :___ THE FIRST YEAR

A DIARY OF DEVELOPMENTS .

The Nkomati Accord between South Africa and Mocambique was signed on March 16, 1984. A Diary of Developments for the year since then discloses the efforts that have been made in South Africa towards its implementation. It is not only the government that has been involved but also corporations, companies, a variety of other organisations and private individuals. Co-operation has ranged from major projects like harbour and airport improvement, through tourist and labour arrangements, to gifts of food. Goodwill is widespread, and there is general frustration among South Africans at the blocking of progress in many areas by the on-going conflict between the Mocambique resistance movement, Renamo, and the Maputo government.

n This, is the diary:March, 1984: Nkomati Accord provides for non-aggression,good neighbourliness, economic . collaboration. Itestablishes joint security commission to supervise and monitor the agreement. Regular contact between thecountries is maintained through this commission, and through three other jgint bodies - on economic matters, tourism and Cahora Bassa hydro-electric project.

April, 1984: South Africa is invited by Mocambique,Zimbabwe and Botswana to join them on a technical committee for development of the Limpopo Basin. For 534 km theLimpopo river forms the boundary between South Africa and Botswana; for 230 Jan between South Africa and Zimbabwe, for 510 Jem it flows through Mocambique. Joint research and development of the waterway is of prime economic importance to all three countries.

April, 1984: First consignment of 5-million applesarrives in Maputo. A gift from Cape fruit farmers tochildren of Mocambique, delivered free of charge by the South African Transport Services; Conference Lines, also ship free while % 25 000 cartons are donated by Nampak Corrugated Containers. . .

May, 1984: Representatives of Portugal, Mocambique andSouth Africa sign agreement on Cahora Bassa in Cape Town Among the advantages it.promises are:


2

(i) delivery to ESCOM at a competitive price of some 8 per cent of its total requirement;

(ii) direct financial benefit from operation for Maputo governments;

(iii) regular return to Portugal on its investment of Rl 200-million in project; ^

(iv) a model of how natural resources of Africa can ' be used for common benefit across political/

ideological frontiers.

May/ 1984: First organised mission of South Africanbusinessmen flies into Maputo for three-day visit. Representing fishing, banking, steel and electrical,, equipment interests, it explores trade opportunities with Mocambique Chamber of Commerce. Visit is sponsored by South African Foreign Trade Association.

May, 1984: Defence Minister Magnus Malan declares SouthAfrica'sreadiness to supply Mocambique with logistical support to help guard Cahora Bassa powerline on its side of border, against sabotage by resistance movement.

May, 1984: Director of national tourist organisation inMaputo, George Welch, says Mocambique has begun rebuilding its holiday infrastructure to attract large numbers of mainly South African visitors. He says he has receivedinquiries from number of South African fishing clubs.

May/June, 1984: President (then Prime Minister) P W Bothavisits seven Euorpean countries at invitation of their governments. Invitations reflect- European recognition, following Nkomati, of South Africa's key role in region During tour President repeatedly stresses necessity of European assistance for economic redemption of subcontinent. •

June, 1984: Members of South African government refer tosecurity advantages for South Africa resulting from Nkomati. Transport Minister Schoeman says Maputo government has already eliminated 36 ANC cells in Mocambique Defence Minister Malan notes: "We have reached point whereANC activities, are considerably*limited as consequence of government's initiative in normalising ' relations with neighbours". -

July, 1984: Destination MAPUTO appears on'South Africanroad signboards. Johannesburg Star publishes photograph of


3

board in Lowveld town of Barberton: MAPUTO ... KRUGER NATIONAL PARK ... SWAZILAND. Picture tells historic story. Decade ago, sign LOURENCO MARQUES was taken down following collapse of Portugal's empire. Nothing was put in its place: there . was then no communication between two countries.

August, 1984: South African-based Rennies Shipping is toprovide Rl,5-million to help upgrade cargo handling At Maputo port. It is now estimated that 6-million tons of cargo will be sent through Maputo during coming two years, compared with 1,2-million tons in 1983.

August',' 1984: Mocambique delegation visits TransvaalLowveld for talks with Repmosa, private organisation

i established to co-ordinate Lowveld trade with Mocambique. Lowveld businessmen are mooting projects involving heavy investment in Mocambique. There are discussions about making land in Mocambique available for farming by South Africans. Repmosa itself makes firm proposals for joint

' multi-million rand tourist programme.

August, 1984: Transport Ministerduring visit to Maputo. RIO-million government as part of 10-point plan to railway infrastructure and Maputo port. Mocambique transport departments will two months to evaluate progress.

Schoeman announces loan to Mocambique rebuild Mocambique's

South Africa and in future meet every

August, 1984: It is disclosed in Pretoria that SouthAfrica will provide funds towards establishment of multimillion rand canned-meat factory in Maputo.

September, 1984: Mayor of Randfontein, Fanie van Zyl,organises goodwill trip for 200 tourists by, train from his town to Maputo. It is first South African passenger train to cross border since May 11, 1977.

October, 19 84*: Foreign Minister Pik Botha arr^pges meet- ||ing in Pretoria betwewen Frelimo government arid RenamO resistance movement.

Ijj

Renamo/Frelimo conflict is crux of whole situation; ..and never before have representatives of two sides ~ sat together at conference table. Meeting ends in agreement Pretoria Declaration - to work towards ceasefire. Joint! commission - representing Pretoria, Frelimo and Renamo - il set up towards that end. However, immediately after meet4 ing, Renamo secretary general states fighting Will contintt#| until ceasefire is signed; Frelimo representative state* war will go on "until bandits finally end their violence*. ®


4

Security-wise South Africa has profited from Nkomati, Mocambique has not: ANC has been curbed, Renamo hasnot. This has led to criticism of Pretoria. But fact is that while ANC bases were situated in Mocambique, Renamo bases have never been situated in South Africa. Renamo, with variety of foreign supporters, operates from within Mocambique itself. Accordingly, PretQ- ria's task of controlling Renamo has been incomparably more difficult than Maputo's task - namely, of closing down ANC bases inside its own territory.

November, 1984: Manpower Minister Pietie du Plessis leads15-man mission, including representatives of Chamber of Mines and South African Agricultural Union, to labour talks in Maputo. Result: agreement .

(i) to regularise position of thousands of illegal immigrants from Mocambique working on farms in Eastern Transvaal;

(ii) to streamline procedures for recruiting Mocam- bique workers for South African Mines. .........

November, 1984: Pretoria and Maputo agree to joint programme to Investigate marine resources and exchange scientific information. Also:

(i) document is signed by South African Industrial Development Corporation and Bank of Mocambique for providing financial assistance to rehabilitate MOcambique fishing fleet; and .

.(ii) South African fishing companies operating in. Mocambique waters will pay Maputo government levies on. their catches.

November, 1984: South African wing of internationalMissionary Aviation Fellowship steps up efforts to bring relief by air to those in dire need in Mocambique. Until Nkomati, Mocambique was closed to MAF. Organisation flies in food, medical aid, skilled personnel.January, 1985: President Botha says there are indicationsthat assistance continues to be given to Renamo by* certain individuals from number of countries including South Africa. He reaffirms' that his government will not allow- South African territory to be used for perpetrating or planning of acts of * violence against neighbour states by any organisation or. person.


5

March, 1985; After meeting in Maputo# South African Foreign Minister and Frelimo governments restate their commitment to Nkomati Accord. Foreign Minister Botha says

' that "guardsmen or security people" may be sent to protect powerlines# roads and railways in Mocambique. South Africa, he says, is also prepared to consider sending in troops if Frelimo requests this, though no request has so far been received. He also discloses that low-level radar has been installed on border to monitor flights that may be Renamo-related.

Such is the Diary of Developments (by no means comprehensive) for Year 1 of the Nkomati Accord. It demonstratesthe good faith of the South African government, the eagerness to co-operate and do business of a variety of South African organisations, and a fund of goodwill towards

« Mocambique among South African citizens. However the \ promise of Nkomati - whether as to power-supply# trade or ‘ tourism - cannot be realised while strife in Mocambique | continues. And the problem is that Renamo is backed by

■ powerful bodies and individuals in countries around the world.

85032201ull


The Court forms a Chamber to deal with the case * *submitted by Burkina Faso and Mali

The following information is made available to the Press by the Registry of the International Court of Justice:

Burkina Faso (formerly Upper Volta) and Mali have submitted to a specially formed chamber of the International Court of Justice a dispute concerning the delimitation of a part of the land frontier between the two States.

Details of the process by which the Chamber has been created are given below.

*

On 20 October 1983 the Government of Upper Volta (renamed Burkina Faso in August 1984) and the Government of Mali had notified to the Registry a Special Agreement, concluded between them on 16 September 1983, and having entered into force on the same date, by which they had agreed to submit to a chamber of the Court a dispute concerning the delimitation of their common frontier.

The Special Agreement provided that this chamber was to be formed pursuant to Article 26, paragraph 2, of the Statute of the Court.This Article provides that the Court may form a chamber for dealing with a particular case. The Parties, duly consulted by the President, indicated on 14 March 1985 that they desired the formation of a chamber of five members, of whom two would be judges ad hoc chosen by themselves in accordance with Article 31 of the Statute. This Article provides for the right of a Party, when there is no judge of its nationality upon the bench, to choose a judge ad_ hoc to sit in the case.

Following a decision to accede to the request of the two Governments, on 3 April 1985 the Court adopted by a unanimous vote of Members present an Order whereby it constituted a Chamber which will be seised with the case, and which will be composed as follows:

Judges Lachs, Ruda and Bedjaoui;Judges ad hoc Luchaire and Abi-Saab.

It will be for the Chamber so formed to elect its own President.

FRENCH TERRITORIES OF THE PACIFIC - FRENCH POLYNESIAAND THE PACIFIC *

PPOTOCOLE - I'.'CTITUANT UNE ALLIANCE DES TERRI TO I RES FRANC A13 DC rr.CIFICLes Gouvernements des Territoires Frangais de Poly-

nesie et de Nouvelle-Caledonie, habilites par deliberation de leurs Assemblies Territoriales et reprisentes par leurs Presidents.

- Conscients d'appartenir a une meme civilisation dont la valeur est, au-del<i dee identites ou des diversites cultu- relles, universelle et qui est fondee sur l'idee de liberte,

- Profondement attaches a cette conception du destin de de l'homme et a son expression politique : la democratie,

- Respoctueux des principes de legalite republicaine et dc souverainete nationale qui assurent i'egalite devantla loi de tous les citoyens sans distinction d'origine, de race ou de religion, par le suffrage universal, <5gal et secret,

- Fideles 5 la constitution et aux lois qui definissent* les statuts de leurs Territoires en ve-rtu desquelles ils bene- ficient d'une large autonomie interne dans le cadre de la Re- publique, leur permettant de s 'admiriistrer librcment par leurs representants elus,

- Constatant que l'idee de civilisation et le concept de democratic qu'ils partagent sont mis en peril, dans cette partie du Pacifique, par des tentatives d'hegemonie faites sous le couvert d'ideologies ,

- Constatant aussi que la legalite republicaine, le respect do la constitution et 1'application des lois statutai- res sont actuellement menaces dans I’un des Territoires frangais du Pacifique,

- Constatant enfin qu'il ex.iste cntre eux une commu- ,naute d'interets, fondee non seulenient sur leur appartenanceh la nation frangaise dont ils partagent la langue et la culture, mais aussi sur leur situation geographique et le niveau de leur divsloppemont economique et social,

Convaincus qu'ils ont le devoir de participer A la defense du mondo libre dans cette partie du Facifique, de pro- toger los droits dc l'homme ct du citoyen sur leur sol et de preserver 1'integrity du Territcire national,

Persuades en outre qu'une alliance entro les Territoires Frangais du Pacifique, etablie sur la base d'un ideal commu n dc; liberte, d'egalite ct do fraternite o-t sur la solidarity des peuples qui les composent, est dovenue necessaire pour assuror la prosperity economique, le progres social ot le developpement culture! de leurs habitants, • *

* (The Protocol of Alliance in French together with the official English translation, and the official English translations of the address delivered at the signing ceremony were provided by President Dick Ukeiwe, President of the Government of New Caledonia).


Sont convenus de ce qui suit :

ARTICLE ler : Les Territoires Frangais du Pacifiqufe consluentune alliance pour defendre et proteger leurs interets com- muns en matiere politique, economique. sociale et cultu- relle.

ARTICLE 2 : Une conference des Presidents des Gouvernements de la Polynesie Frangaise et de la Nouvelle-Caledonie est creee.

Cette conference se reunit au moins quatre fois par an, suoEssivement dans chacun des Territoires composant 1*alliance et sous la presidence du representant du Territoire dans lequel elle a lieu. La premiere reunion se tiendra a NOUMEA dans le mois qui suit la signature du present protocole.

ARTICLE 3 - La conference des Presidents a pour objet de per’ mettre ct ses membres :

- de prendre contact, au notn de I'alliance, avec d'autres Territoires ou Etats du Pacifique, afin de nouer avec eux des relations de nature a favoriser un rapprochement entre les•peuples du Grand Oci-an,

-d'echanger des informations concernant la situation de chacun des Territoires de I'alliance,

- d'elaborer une politique commune de developpement economique, notamment en matiere de tourisme, d'agriculture, d'aquaculture ,

- d'assurer la coordination des actions sociales, notamment en matiere de protection sociale et d'emploi et, d'une fagon plus generate, d'harmoniser les institutions sociales existantes dans chaque Territoire,

- de mettre en commun 1‘experience acquise au cours de la mise en place des institutions territoriales issues de leurs statuts respectifs afin d'ameliorer le fonctionnement de 1'autonomie interne,

La conference des Presidents fixe en outre- la periodicity et 1'ordro du jour do la commission permanente.

ARTICLE 4 - Les Presidents des Gouvernements des Territoires Frangais du Pacifique membres de I'alliance designent chacun deux Ministres ou Conseillers Territoriaux pour partieiper aux travaux de la Commission Permanente, Ils se notifient mutuellement la composition de leur delegation respective avant chaque reunion de la dite commission.

Les membres de la Delegation Permanente peuvent s'adjoin- dre des experts ou des Coinmissaires qui n' ont pas voix deliberative. Ils se reunissent sur convocation de la conference des Presidents dans le Territoire qui a organise la derniere conference et sous la presidence de l'un des representants de ce Territoire.


- 3 -

ARTICLE 3 - La Commission permanerfc ost chargee :

- de mettre en oeuvre les pro,jets adoptes par la conference des Presidents.

- de proposer h la dite conference toute mesure de nature & faciliter 1'harmonisation des diverses reglementations des Territoires membres de I’alliance.

ARTICLE 6 - Le Secretariat de I'alliance est assure par unSecretaire General designe par la conference des Presidents .

ARTICLE 7 - Des Comites Techniques peuvent etre crees par la Conference des Presidents, do sa propre initiative ou a la demande do la Commission Permanente, afin d'approfondir 1'etude d'un domaino ou d'un probleme particulier.

Ces comites sont composes de specialistes ou d'experts designers paritairement par chacun des Territoires membres de 1'alliance .

ARTICLE 8 - Chaque Territoire supporte la charge financiereresultant du deplacement et de 1'hebergement des membres do sa delegation,

Le Territoire concern^ assure en outre les frais d'organisation et de secretariat de la conference des Presidents et de la Commission Permanente qui se tiennent chez lui,

ARTICLE 9 ~ Le financement des actions qui ont ete conjointement deciders est supporte par chacun des Territoires, membres de I'alliance.Des conventions particulieres definiront, le cas echeant, la repartition des charges entre les Territoires.

ARTICLE 10 - Le Territoire des lies Wallis et Futuna peut adherer au present protocol.; • un avenant determinera alors les modifications qui doivent y etre apportees pour tenir compte du statut de ce Territoire.

ARTICLE 11 - Le Present protocole est- conclu pour une duree indeterminec-, II pourra etre denonce S tout moment par l'un des Territoires qui y a adhere a condition que les autres Territoires cn soient avisos.

Dans ce cas, un accord particulier definira les mesures transitoires applicable^ au reglement des actions on cours et les modalites de liquidation des financeinents conjoints vises & l'articlo 9.


ARTICLE 12 - Les decisions prises en application du present protocole s’executant dans le cadre des pouvoirs et des attributions qui ont etd conferds aux institutions de chacun des Territoires adherents.

Fait a NOUMEA, le 13 FEVR. 1985

Le Prdsident du Gouvemoment de la Polynesia Franchise

Le President du Gouvernement de la Nouvelle-Calddonie

Dependances

k UKEIWE


PROTOCOLESTABLISHING A CO-OPERATION ALLIANCE

BETWEEN THE FRENCH TERRITORIES

OF THE PACIFIC

JD_0_0_°_0_

The Governments of the French Territories of Polynesia and New Caledonia, empowered through a decision of their respective Territorial Assemblies, and represented by their Presidents.

Conscious of belonging to the same civilisation whose main value,whatever the respective identities or diversities of the two Territories may be, is a universal one, sin^ce it rests upon the idea of LIBERTY,

Deeply attached to this conception of Man's Destiny and to its political expression, namely DEMOCRACY,

Respectful of the principles of Republican legality and of national sovereignty which warrant to all citizens an equal status as regards the LAW, irrespectful of their origin, race or religious beliefs, through universal suffrage, fair, equal and secret,

Faithful to the Constitution and to the laws that define the statute of their Territory, by virtue of which they enjoy wide internal self-government within the framework of the French Republic, thus enabling them to administer themselves freely through their elected representatives,

Observing that the idea of civilisation and the concept of democracy which they both value, are being jeoj?rdized in this part of the Pacific, by attempts at hegemony made under the cover of ideological theories,

Observing that the Republican legality, the respect for the Constitution and the enforcement of statutory laws are at present threatened in one of the French Territories of the Pacific, .


- 2 -

Finally, acknowledging that between those two Territories there exists

a community of interest, having its origin not only in their common heritage which

includes the French language and culture, but also in their respective geographical

situation and in the level of their economic and social development,

Convinced that they share the responsibility to participate to the

defence of the free world in this region of the Pacific,to protect the Rights

of Man and Citizen on their own soil and to preserve the integrity of the National

Territory,

Persuaded that an Alliance between the French Territories of the

Pacific, based upon a common ideal of Liberty, Equality and Fraternity, together

with that of Solidarity of their peoples,has become necessary to assure the economic

prosperity, social progress and cultural development of their inhabitants,

HAVE AGREED AS FOLLOWS

ARTICLE I : The French Territories of the Pacific conclude an Alliance to defend

and to protect their common interests in political, economic, social and cultural

matters.

ARTICLE II : A Conference of the Presidents of the Governments of Polynesia and

of New Caledonia is herewith established.

This Conference will convene at least four times a year, alternately in each Terri

tory which concluded the Alliance, under the chairmanship of the Representatives

of the Territory in which it takes place. The first Conference will beheld in

NOUMEA in the month following the signing of the present Co-operation Accord

( Alliance )

ARTICLE III: The main object of the Presidents' Conference is to allow its members

to make contact with other States or Territories of the Pacific, on behalf of

the Alliance so as to promote closer links between the peoples of the Great Ocean,

- to exchange information concerning the situation of each Territory in the

Alliance,

- to formulate a common policy for economic development, especially as regards

tourism,agriculture, aquaculture

___________________ [1985] AUSTRALIAN INTERNATIONAL LAW NEWS 540

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- to ensure the co-ordination of social actions,especially as regards social welfare and employment and also, more generally to harmonize the existing social structures in each Territory,

- to pool the experience acquired during the setting up of the Territorial institutions arising from their respective statutes, for th^better running of "internal autonomy" ( internal self-government),

Besides, the Conference of the Presidents sets the dates and the agenda of the meetings of the Standing Committee.

ARTICLE IV : The Presidents of the Governments of the French Territories of the Pacific that are members of the Alliance appoint 2 Ministers or Territorial Councillors each to take part in the sessions of the Standing Committee. They advise each other of the composition of their respective delegation, prior to each meeting of the said Committee.

The members of the Standing Committee may secure the services of experts or advisers who do not have decision-making power. They meet upon invitation of the Conference of the Presidents in the Territory which organized the previous meeting and under the chairmanship of one of the Representatives of this Territory.

ARTICLE V : The responsibilities of the Standing Committe are as follows :

- to carry out the projects and plans agreed to at the Conference of the Presidents,

- to suggest to the said Conference all measures likely to harmonize the various regulations of the Territories that are members of the Alliance.

ARTICLE VI : The Secretariat of the Alliance is entrusted to a Secretary-General appointed through the Conference of the Presidents.

ARTICLE VII : Technical Committees may be set up by the Conference of the Presidents, of its own initiative, or at the request of the Standing Committee, in order to investigate more deeply a particular field or problem.These Committees are composed of specialists or of experts appointed, in equal miaint* bers

ARTICLE VIII ; The Territory bears the financialcharges arising from the transport and accomodation of the members of its delegation. *The costs resulting from the material organisation and secretariat of the Conference of the Presidents and of the meetings of the Standing Committee are borne by the host-Territory.


4

ARTICLE IX ; The funding of actions which have been jointly agreed to is supplied by each of the Territories, members of the Alliance.Special provisions will define, if needs be, the distribution of financial charges among the Territories.ARTICLE X : The Territoryof Walli S and Futuna Islands may join the present Alliance; an additional clause will determine the changes required to take into account the specific statute of this Territory.ARTICLE XI : This present Protocol is established for an indefinite length of time. Any member Territory may withdraw from it at any time onthe condition that the other Territories are given 3 be notice.In that case, a specific accord will outline the transitory measures for the winding up of actions under way and the settlement of joint accounts mentioned in Article IX.ARTICLE XII : The decisions taken with reference to the present Protocol are carried out in accordance with the powers and duties that have been conferred to the institutions of each member Territory.

Drawn up in NOUMEA

February I4th, 1985

The President of the Government The President of the Governmentof French Polynesia of New Caledonia & Dependencies

Gaston FLOSSE Dick UKEIWE


ADDRESS DELIVERED BY

PRESIDENT Dick UKEIWE

AT THE SIGNING OF

THE PROTOCOL OF ALLIANCE BETWEEN

FRENCH POLYNESIA AND NEW CALEDONIA

-o-o-o-o-o-

French Polynesia and New Caledonia, countries of Oceania, have shared for centuries a common heritage which had its source in the identity they both have with this region of the world where the vastness of the Pacific is the link that unites, and whose inhabitants, in the course of lengthy migrations, have scattered over the islands, the archipelagoes, the Australian land-mass and the shores of other continents that lie around the Great Ocean.

You, my Polynesian friends, roamed the South Seas as far as New Zealand, on your world-famous canoes. Each of our sea-captains carried with him the stamp of your culture and of your social patterns. We, Melanesians, came in different migrations which are a mystery for scientists who still wonder about their origin and their itineraries.

We, Melanesians, came from the North, from the West, from the NorthEast. We are descended from remot^4ncestors who, like yours, set sail one day aboard long canoes and who started here and there where they landed, on islands, in secluded valleys, the settlements from which the original clans of New Caledonia sprang.

For centuries our ways of communication were the ways of the sea.Our means of transport were our canoes. This led us, through distant ancestors,who sailed in the first fleets, to pool and share our initial learnings,our initial social structures.

And so our social organization evolved, through the centuries, until one day some other sea-men, who came from lands still farther away, sailing on ships far bigger than ours, accompanied by men of learning, called in our regions, bringing in their turn, the inprint of their own civilisation. You, Polynesians, willingly wove threads with these new sea-farers who came on behalf of a faraway people, the people of France, who offered a new social contract and a new plan for development. We, Melanesians, whose populations in those days were strangers to one another, strangers because of the tribal customs and also because of different dialects, we accepted, through the word given by our chiefs, to bind a new pact of social and economic stability with the people of France. This new pact was, for you and for us, the source of unity and the cement of our political and administrative organization.


Thus, through the authority of France, Polynesia has strenghtened its geographic unity.

Thus we, the people who lived in what was to become New Caledonia have overcome our original solitude so as to unite our diverse populations and enrich our civilisation with contributions from Western culture. Stepping out of our seclusion, understanding one another better thanks to a new common tongue, we learnt to know each other. We also welcomed all that was brought to us by those new-comers from the other side of the world, pioneers who were often themselves rejected by their own society ; gradually we established with them links of friendship first, then links of kinship. So it was given us to enjoy a long period of peace, and in that peaceful period we began to shape a new community : the Caledonian community.

Now I ask you : " Where do we stand to-day?"

In the course of these twenty or thirty years, Polynesians have come to our shores in great numbers. They started new friendships, they founded new families. Each one of them in his own sphere, has participated actively in the development of our country, of his country. Many of them, in various fields, are to-day a genuine part of the local scene. More Caledonians were born, Caledonians of Polynesian origin, born in this country : They, too, are Caledonians.

Mr President, and through you, all of you inhabitantsof French Polynesia, please be convinced that we are aware of sharing the same ocean, that we are aware of sharing the same love for our Pacific way of living.

Thanks to all that remote country brought us, thanks to the organization and the structures it distributed to both our countries, we enjoy to-day an extra part of common civilization. You and I to-day, together with our respective communities, think the time has come to broaden our scope and to pool all tha^nay contribute to the benefit of the populations for whom we are responsible.

From the many projections that endeavour to determine what the world will be like at the dawn of the third millenium, it appears that the Pacific Basin will be the new center of development. In twnety years from now, it may well be "The New World". It is obvious to-day, the more so in the light of events that shook my country recently, that this essential center of life and prosperity in to-morrow's world has become a stake of the highest value. Keen as we are on our specific way of living, conscious of our cultural riches and of our economic wealth, persuaded of the importance of our countries as strategic goals, we must be vigilant.More than ever.

At a time when what was known as independence is fast becoming interdepence, at a time when the oldest nations of the world join ranks so as to be stronger, fitter, more adapted to face the hardships of the world, we must keep in mind that putting together our wills, our energies, and our resources will make us, in our turn, strc ger, better prepared to overcome the difficulties of the XXth century.What we witness every day in the European Economic Community is the best possible example of what I am saying. This quest for unity also applies to other countries, in Africa, in Eastern Europe, in the Americas, as well as in Asia. All these countries have made good the saying : " United, we stand" as they know too well what may happen if they do not unite.


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The Pacific Basin is not free from this world movement. The Prime Minister of Japan, the Governments of Australia and of New Zealand are only too aware of these changes. As for us, in proportion with the scale, both big and small of our Territories, and within the framework of the French republic which guarantees the totality of our Rights against the big powers, we express the will of sharing all thai/is likely to reinforce our respective developments, our vigilance, our ability to resist external pressures. We are convinced,ir/doing so, to work for the good of all the Polynesians as well as of all the Caledonians.

This Protocol we are about to sign will formalize those bonds that unite, thanks to the institutions, French Polynesia and New Caledonia.I am convinced that the effects of these bonds will be beneficial to each and to all. In economic and social fields, this accord will open up new vistas to all those who take a leading part in our Territories. Finally, I am convinced that our common voice will be more clearly heard by those whose duty is to hear it when it speaks in the defence of our common interests.

Mr President, please believe that the era of co-operation which we have the honour of opening to-day is an exalting mission. In the tradition of peace, progress and liberty which motivates our two peoples, there is no nobler ambition than to aim at knowing one another better, at uniting our forces in pursuit of the common good.

-o-o-o-o-o-o-

NOUMEA,February 14th, 1985


TAIWAN, CHINA/USA : MURDER OF HENRY LIU *

Documents:

1. Draft Resolution adopted by US House of Representatives Foreign Affairs Sub-Committee on Asian and Pacific Affairs, 7 February, 1985.

2. An amendment in the nature of a substitute to that resolution presented by representative Henry J. Hyde,21 March, 1985.

3. Letter dated 21 March 1985 from Professor Hungdah Chiu to representative Henry J. Hyde.

4. Information on the Henry Liu case provided by the Taiwan authorities.

These documents were provided by Mr Hsin Chi-Lin, Directorof the Department of International Information Service, Taiwan,China.


DRAFT RESOLUTION

Expressing the sense of Congress that the Taiwan authorities should facilitate the transfer to the United States of individuals accused in

the murder of Henry Liu to stand trial

Whereas Henry Liu, an American citizen of Chinese ancestry, was murdered in Daly City, California on October 15;

Whereas certain citizens of Taiwan have been and may be accused by authorities in the United States in connection with the crime;

Whereas both the cause of justice and sound American relations with the people of .Taiwan will best be served if individuals accused of a crime committed on American ‘soil are tried in American courts; therefore, be it

Resolved' by the House of Representatives (the Senate concurring) that it is the sense of the Congress that the Taiwan Authorities should take all possible steps to facilitate the transfer to the United States of all Taiwan citizens accused by U.S. authorities of involvement in the murder of Henry Liu, in order that they may stand trial in American courts. •


AN AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO HOUSE CONCURRENT RESOLUTION 49OFFERED BY: Henry J. Hyde

Expressing the sense of the Congress that an extradition agreement should be concluded between the American Institute in Taiwan and the Coordination Council for North American Affairs.

Whereas the Republic of China lias requested on numerousoccasions that an extradition agreement be concluded with the United States;

Whereas an extradition agreement with the Republic of China would improve the administration of criminal justice in the United States; be it

Resolved by the House of Representatives (the Senate concurring) that it is the sense of the Congress that the American Institute in Taiwan and the Coordination Council for North American Affairs should take immediate steps to conclude an extradition agreement which meets the best interests of both sides.

Further be it resolved that inasmuch as legal proceedings against several of the individuals charged with the death of Mr. Liu are currently underway in the Republic of China, the United States expresses the hope and expectation that justice be done under the laws of that country; and that following the current proceedings, the President of the Republic of China is urged to exercise such powers as he may have under all applicable law to bring to justice any other individuals who have been charged in accordance with law, and to facilitate extradition to the United States in any and all appropriate cases.


University of Maryland law School

500 West Baltimore St.

Baltimore, Maryland 21201 U.S.A. Telephone (301) 528-7579

March 7, 1985

The Honorable Henry J. Hyde -U.S. House of Representatives Washington, DC 20515

Attention: Mike

Dear Representative Hyde:

Dr. Maria H. Chang of the Hoover Institution has asked me to provide you with information concerning the extradition problem between the United States and the Republic of China (ROC) on Taiwan. I am pleased to provide you with the following information:

(1) Under international law, extradition is based on treaties between the two countries. This view is confirmed by the U.S. Supreme Court in the case of Factor v. Laubenheimer, 290 U.S. 276, 287 (1933):

The principles of international law recognize no right to extradition apart from treaty.While a government may, if agreeable to its own

. constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled, and it has been said that it is under a moral duty to do so, . .. the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty. (emphasis added)

(2) The general opinion in the United States has been that there was no authority to surrender fugitives to a foreign state in the absence of treaty. See Whiteman, Digest of International Law, Vol. 6 (1968), pp. 732-737. Whiteman was an Assistant Legal Adviser of the U.S. Department of State. The Digest was compiled under the auspices of the Department of State.

(3) There is no extradition treaty between the United States and the Republic of China on Taiwan. The ROC on Taiwan has repeatedly requested the United States to conclude an extradition treaty with her but the request has been repeatedly ignored. The United States has extradition treaties with more than 100 countries in the world There are many economic criminals who escaped from


March 7, 1985 — Page 2 —

Taiwan to the United States and these criminals have large amoujnts of money deposited in U.S. banks, and other assets. ;

(4) In the Republic of China, the request for extradition is governed by the Law of Extradition (promulgated on April 17, 1854, with amendments in 1981 to change the reference to "Ministry oJ| Judicial Administration" to "Ministry of Legal Affairs"). Thei^elevant articles are quoted below with commentaries if necessary:

Article 1

Extradition shall be effected in accordance with treaties. Where there are no treaties or no provisions applicable to a case in existing treaties, the provisions of this Law shall prevail.

Article 4

Extradition shall be refused if the person whose surrender is requested for is a citizen of the Republic of China: provided, that this shall not apply if the person acquired the citizenship after the requisition for extradition is made.

A citizen of the Republic of China who commits an offense specified in the provisions of Articles 2 and 3 of this Law in the territory of a foreign country shall, after the request for

. extradition made by a foreign government is refused, be referred to a court which has jurisdiction over the case for trial.

Comment: The original draft submitted by the ROC ExecutiveYuan to the Legislative Yuan (a unicameral legislative body) was "Extradition may be refused if the person whose surrender is requested for is a citizen of the Republic of China. . . . "; however, after the deliberation at the Legislative Yuan, the word "may" was changed to "shall." See Li-fa-yuan kung-pao (Gazette of the Legislative Yuan), 12th Session, No. 1 (October 1, 1953), p. 7.

Article 9

A request for extradition shall be made to the Ministry of Foreign Affairs through diplomatic channels. (emphasis added)

Comment: The United States took the initiative to severdiplomatic relations with the Republic of China on January 1, 1979, therefore, how the U.S. can send a request for extradition to the Republic of China through "diplomatic channels" is a question that needs to be studied.


March 7, 1985 — Page 3 —

21 i(5) Congressman Solarz said that under Article^ 22 of the

Republic of China Law of Extradition the President of the Republic of China can extradite a Chinese national to the United States.This view is erroneous. Articles 21 and 22 of the ROC Law of Extradition provide:

Article 21

The court, after preparing the decision, shall submit it together with the complete record of the case to the Ministry of Judicial Administration for forwarding to the Ministry of Foreign Affairs. The Ministry of Foreign Affairs shall then report the case to the Executive Yuan for forwarding to the President of the Republic for approval.

If a court cannot decide to which country the accused should be delivered up in accordance - with the provision of Article 6, it shall be so stated in the written decision for final decision by the President.

Article 22

If extradition is approved by the President, the cognizant court shall, after receipt of the order from the Ministry of Judicial Administration, notify the accused thereof.

' If extradition is refused by the President,the cognizant court shall cancel the detention.The country making the requisition may not thereafter make requisition for extradition on the same case.

Nowhere in Articles 21 and 22 does it say that the President can overrule Article 4 on the prohibition of extradition of Chinese nationals. Congressman Solarz's view would render Article 4 meaningless, and thus contrary to the basic principle of statutory interpretation that the legislature intends the provisions of a statute to have a certain effect, and not to be meaningless. It is also contrary to another principle of interpretation of law — express io unius est exclusio alterius (expression of one thing is the exclusion of another). The specific exclusion of the extradition of Chinese nationals in Article 4 certainly exclude the President to exercise its discretion on this issue under Article 22.

As a matter of fact, Article 22 is similar to U.S.C. Title 18, Chapter 209 — Extradition, §3186. "The Secretary of State may order the person committed under §3184 [fugitive from a foreign


March 7, 1985 — Page 4 —

country] or S3185 [fugitive from a foreign country under U.S. control] to be delivered to any authorized agent of such foreign government, to be tried for the offense of which charged." The Secretary's discretionary power is to be exercised after the Court decides that the person is extraditable. It does not mean that the Secretary has complete discretion in the extradition case, in disregard of other provisions of the U.S.C. on extradition.

Hungdah Chiu Professor of Law

hc/lym cc* D]Dr. Maria H. Chang

75 Parnassus Road Berkeley, CA 94708

[1985] AUSTRALIAN INTERNATIONAL LAW NEWS S52

Information Relating to Henry Liu Murder Case

I. The Chronological Development of the Case:(1) On May 26, 1984, the government of the Republic of China announced

its determination to rid the country of criminal gangs and called on gang members to turn themselves in to police authorities within the period from May 26 to September 25. On September 25, however, in view of the fact that many gang members had still not turned themselves in, the government extended the deadline.

(2) On November 12, 1984, a dragnet code-named Operation "Clean-Up" was launched against organized crime. Chen Chi-li was arrested in a raid on that night. Following his arrest, Chen Chi-li disclosed his involvement in the Henry Liu murder case. Another suspect, Wu Tun, was arrested a few days lat^r.

(3) On November 17, 1984, the Ministry of Foreign Affairs asked the ROC representative in the United States, Dr. Fredrick F. Chien of the Coordination Council for North American Affairs (CCNAA), to inform the U.S. authorities of Chen Chi-li*s implication in the case. With this information, a breakthrough was achieved in the investigation of this case by the U.S. authorities.

(4) On November 29, 1984, the U.S. authorities announced the arrest of one Yu Ta-chun, suspected of being involved in the case (Yu was in America and was later released for insufficient evidence), claiming at .the same time that there were three other suspects in Taiwan. (In fact, one of the three suspects named, Tung Kwei-sen, is not in Taiwan, he is reportedly in the Philippines at present.)

On the same day, a U.S. State Department spokesman, responding to a question, stated that there was no evidence to indicate that the Taiwan authorities were involved in the case. The State Department spokesman also disclosed that, in the course of investigation, the Taiwan authorities had been cooperating with and providing assistance to U.S. law enforcement agencies.

(5) On January 13, 1985, Chen Chi-li, in his statement during interrogation, implicated three officials of the Defense Intelligence Bureau. Consequently, on the same day, Wong Hsi-ling, the Bureau’s Director, Hu Yi-min, the Bureau’s Deputy Director, and Chen Hu-men, Second Deputy Chief of the Bureau’s Third Department * were detained for questioning.

(6) In a news release dated January 15, 1985, the Ministry of National Defense announced publicly that Wong Hsi-ling was suspended from duty, effective January 16, 1985 pending investigation.

On the same day, Dr. King-yuh Chang, Director-General of the Government Information Office formally* announced in a press release the implication of Defense Intelligence Bureau personnel in the case; reiterated the ROC


government's willingness and readiness to fully cooperate with U.S. authorities on the case; and indicated that an ad hoc commission had been set up to look into activities of Defense Intelligence Bureau personnel that might tend to violate law or disciplinary rules. (See Attachment I).

(7) Relevant Information for Reference:(a) Henry Liu was killed on October 15, 1984.(b) Personal background of Henry Liu (See Attachment II).

II. Legal Aspects: .(1) Article 1 of the Law of Extradition of the Republic of China,

promulgate'd and put into effect in 1954, provides that: "Extradition shall be in accordance with treaties. In the absence of treaties or where treaties • exist but there are no applicable provisions, the provisions of this Law shall apply."

At present, there is no extradition treaty or agreement between the United States and the Republic of China. According to Article 4 of the Law of Extradition, "Extradition shall be refused if the fugitive whose surrender is requested is a citizen of the Republic of China." Consequently, extradition of the suspects in this case is forbidden by this explicit legal provision. Such provision is by no means unique to Republic of China law. The United States has similar legal precedents. For example, in 1936, in the case of Valentin^ v. United States ex rel., the U.S. Supreme Court restricted the power of the executive branch, and precluded them from handing an American citizen over to the French government.

(2) On the question of Chen Chi-lifs prosecution, Article 7 of the ROCCriminal Code provides: "This Code shall apply to an offence not provided for in the two preceding articles, committed by a national of the Republic of China beyond the territory of the Republic of China and for which the minimum basic punishment is imprisonment for more than three years." In other words, if a national of the Republic of China commits a serious crime in a foreign country for which the minimum punishment is more than three years* fimprisonment, he is subject to the jurisdiction of the Republic of China. Chen Chi-li, being a suspect in the murder case Of Henry Liu, meets this jurisdictional prescription. **

(3) Does the sending by the United States of a team to the Republic of China to interview the suspects infringe upon ROC jurisdiction?

According to this country’s legal prescriptions, suspects under detention are permitted to meet their relatives and lawyers. Whether a suspect is permitted to meet persons who are not his relatives, the legal prescriptions leave the same to the discretion of the officer in charge of the detention house who shall take the circumstances of the suspect*s case into consideration in reaching his decision. The arrangement in this instance for

- 2 -


members of the American team to meet with the two suspects in custody, Chen Chl-li and Wu Tun, 16 being made in accordance with this latter legal provision. •

(4) In the present case, the government of the Republic of China has, from the start, closely cooperated with the American authorities and has, on its own initiative, provided to the latter relevant information. Although there is no extradition treaty or agreement between the two nations, thereby rendering it impossible for the Republic of China, under its laws, to allow for the extradition of the two suspects, Chen and Wu, the ROC has left no stone unturned in coordinating with the American authorities and has agreed to the dispatch of a three-member U.S. fact-finding team to the Republic of China to meet with Chen and Wu, so as to afford the U.S. team a firsthand opportunity to understand the facts. The team arrived in Taipei on January 22 and left for United States on January 26 after completing its work. After an indictment is formally filed, the case will be tried in public.III. Matters Relating to the Case: . •

(1) Allegations that the death of Henry Liu was related to his book, Biography of Chiang Ching-kuo: The book was first published in serial form in the magazine Nan Pei Chi (The Perspective) in Hongkong during the 1972 to 1974 period. In 1975 the serial articles were republished in a single volume by the magazine. A revised ecUtion was published in a serial in the Chinese-language paper, The Tribune, in the U.S., beginning July 24, 1983. The revised edition contained affirmations of many of the achievements of President Chiang.

Grapevines at home and abroad tell of a story that Mr. Chiang Hsiao-wu, son of President Chiang Ching-kuo and president of the Broadcasting Corporation of China, was deputy secretary-general or executive secretary of the National Security Council. In actual fact, the three deputy secretaries-general of the NSC are Wang Min, Tung Shih-fang, and Chou Chung-fang; the NSC does not have an executive secretary. Mr. Chiang Hsiao-wu has never held any position in any intelligence or security agencies.

(2) The background of Henry Liu: Newsweek magazine of the United States reported in its issue of January 28, 1985 that Liu had been identified as an informant for the U.S. Federal Bureau of Investigation, "passing on ? information about Chinese-Americans." UPI reported that he had gathered intelligence on Red China for the ROC National Defense Ministry's Intelligence Bureau. Time magazine reported in the issue of January 28, 1985 that "Liu had apparently acted at various times as an agent or informant for Peking, Taipei and US. authorities and may have been caught in his triple dealing." The foregoing are but media reports, and there is at present no clue linking the death of Liu to his complicated intelligence gathering activities for different parties.

(3) Statement of Chen Chi-li implicating the Defense Intelligence Bureau in Liu's case: Insofar as DIB personnel are implicated in Liu's case, several questions are raised. Can this be a frame-up by Chen? Did the accused

- 3 -


personnel know of Chen’s crime after the fact and have failed to report? Or did they know of the planned crime before the fact or even have instigated the commission thereof? Up to the present moment, these questions are still under investigation*

IV The Basic Attitude of the Republic of China in Handling this Case:(1) The government of the ROC was shocked on learning of Chen Chilli’s

implication of Defense Intelligence Bureau personnel in the murder of Henry Liu. Those implicated have been placed under custody pending investigation. If there is sufficient evidence against them, they will be severely dealt with by a military tribunal according to law.

(2) The ROC has set up an ad hoc commission to look into and strengthen the disciplinary side of the Defense Intelligence Bureau so as to prevent any recurrence of individual activity on the part of its personnel that might violate law or disciplinary rules.

(3) The ROC government has consistently and firmly opposed to and condemned the use of violence. The government shall see to it that justice is upheld in this case, that those involved are dealt with according to law, and that the facts of this case are made public.

(4) Immediately after Chen Chi-li, first taken into custody in connection with the Clean-Up Operation, disclosed that he was involved in the murder of Henry Liu, the ROC government informed the American authorities thereof, thus enabling the latter to resolve the case. Thereafter, the government has maintained close contact with the U.S. authorities, provided all necessary factual information, and arranged for the U.S. fact-finding team mentioned above to come to Taipei on January 22, 1985, to meet with the two suspects, Chen Chi-li and Wu Tun. All such endeavours are aimed to one thing, namely, to bring to light the facts of this case at an early date.

r

♦*

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HONG KONG - BANKING SUPERVISION - PRELIMINARY CONSULTATION PAPER *

COMMISSIONER OF BANKING HONG KONG

27th March, 1985

Dear Sir,

As you know the Financial Secretary in his recent budget statement announced that I would consult with the banking community about modifications to the system of supervision in Hong Kong.Consultation with some 500 banks and deposit- takers is a major task and it has seemed sensible to break it into a number of parts. We started by holding two seminars with some 40 banks and deposit-takers, chosen to be a cross-section of the community. To prompt and focus the discussion we circulated some discussion papers.At the seminars a number of comments and ideas were generated. We have included them in a paper which I now enclose, and on which I invite your comments by at the latest the end of April. This paper is being circulated widely in the banking community and because of the number of people involved we would prefer to receive comments in writing rather than verbally.I emphasise that we do not wish to be held to the views in the paper as representing our firm proposals for the future. However, if we cannot obtain better ideas from you and other people, it is likely they would become the basis for recommendations for development of firm and workable proposals. On such matters as statistics and capital and liquidity ratios there would clearly have to be more detailed discussion and a period of gradual

implementation.I look forward to hearing from you.

Yours faithfully,

( Robert Fell )Commissioner of Banking

Commissioner of Deposit-taking Companies

To: The Chief Executive

1604 HANG CHONG BUILDING. S QUEEN'S ROAD CENTRAL. HONG KONG. TEL 5-242141/2 TELEX 64242 COFV HX

* (This paper was provided by Mr Robert Fell, Commissioner of Banking, Commissioner of Deposit-taking Companies, Hong Kong).


Preliminary Consultation Paper

Introduction

1) The Financial Secretary announced in his recent budget speech that the Government is examining various options for improving the system of supervision of banks and DTC's (henceforth collectively referred to as "banks".) This would take account of local views. As a first step in obtaining the views of the banking community, the Commission recently held two discussions with a number of banks on five papers it had prepared for the purpose. This paper summarises those papers, the comments of bankers so far, and the Commission's reaction to those comments. It should be stressed that this paper isa preliminary step towards the formulation of definite

' proposals by the Commission, following consideration of the comments and ideas it expects to receive on the paper.

2) It should also be stressed that examining more appropriate methods of prudential supervision does not carry any implication that banks in Hongkong are vulnerable or badly managed.In fact, the state of the industry suggests remarkable resilience after the recent economic difficulties.

The general framework for supervision

3) There seems to be general agreement that the object of the Commission activities should be the protection of the interests of depositors and the promotion of a secure banking system. Its role is seen as having become more important as Hongkong has become more important as an international financial centre.

4) The Commission has so far found no disagreement with the view that the existing statutory framework for supervision has become inadequate, having regard to the development of banking in Hongkong, the experiences of the last three years and the present phase of expansion following the Agreement with China. The Commission's function up to now has been limited mainlyto ensuring that certain statutory requirements on liquidity and lending are met. The bankers with whom it has consulted agree that the requirements on their own have over time become ineffective as a means of ensuring that the interests of depositors are protected.

5) The Commission put to bankers the proposition that there is a real doubt whether a system which is solely rule-based remains the best way of reconciling the need to have a watchdog for the depositor's interest with the desire strongly felt in Hongkong for a free and competitive market place for banks.It put forward as an alternative the idea that the Commission should operate on a more discretionary basis, relying more on its judgements about the capacity of management in each bank to cope with the challenges it faces. In so far as the judgement is that the management is capable, the Commission


2

would leave it free within the law to pursue its business.It would insist on minimum requirements of capital and liquidity against unexpected misjudgements or just bad luck but as far as possible avoid other constraints. In so far as the judgement is that management is weak, the Commission would endeavour to promote improvements, insist on larger safety margins of capital and liquidity, in more serious cases use its powers to enforce management restraint, and in extreme cases revoke the authority of the bank to pursue a banking or deposit-taking business.

6) In answer to the question how the Commission would go about judging management, it noted that there are a number of "objective" indicators, such as the ability to earn consis-• tently high profits and to avoid unexpected sudden losseson assets or trading; the ability to adapt quickly to changed market conditions; the existence of management in sufficient depth to enable continuity in the face of sudden loss of one or more persons; and the existence of cost effective administrative systems to ensure proper control and adequate knowledge of the bank's business. Equally important are the subjective factors of the supervisor’s confidence in the personal and profit motivation, intelligence, adaptability and practicality of the senior personnel. These judgements would naturally interact with the supervisor's view of the management's policy towards levels of capital adequacy, risk taking or risk aversion, quality of assets, liquidity and other matters which are the supervisor's traditional daily stock-in-trade.7) So far no banker has fundamentally disagreed with these ideas, but a number have doubted the capacity of the Commissioner's staff to make competent judgements in respect of each of the 500 or so institutions for which he is at present responsible. The Commission's view is that the capacity to make the required judgements and act on them could be generated overa period of time. The Commission would undoubtedly rely on the fact that at any one time the number of major problem cases will be a small proportion of the total number of institutions. This has been the case in the past and there

seems no reason not to expect it to continue. Moreover, the Commission has over the years through its examinations built up a considerable body of professional expertise and knowledge.8) Nevertheless, the ability of the Commission to cover the field adequately is a legitimate concern. To prevent too arbitrary a use of the Commissioner's discretion, it seems desirable to place statutory limits on his ability to dictate or permit management policies in the banks. At the least he must be accountable for his actions; but more than that his ability ’to enforce unduly lenient or restrictive balance sheet relationships should, perhaps, be curtailed.9) The Commission's view that the ultimate "safety nets" against managerial deficiency and/or bad luck are adequate capital and liquidity seems shared by the banks with whom it has so far consulted. It seems therefore that it is in the settingof these basic balance sheet relationships that the Commission's freedom of action should be curtailed.

/ Capital


3

Capital adequacy

10) From the supervisory viewpoint the primary purpose of capital is to enable losses to be sustained without threatening the closure of the bank or otherwise prejudicing the interestsof depositors. Its subsidiary purpose is to provide a pool of finance the servicing of which is at the discretion of the directors. This allows an increase in non-income generating assets (e.g. premises, other fixed assets or non-performing loans) to be sustained without undue stress.Of course, the providers of the capital have different priorities.11) The Commission put forward a suggestion for a common measure ' of capital adequacy, offering as its chief merit simplicitywithout too much distortion of reality. This was to compare capital with the total* of assets and contingent liabilities, but taking liquid assets at, say, 1/5 of their balance sheet value, in recognition of the markedly lower than average risk attaching to this substantial proportion of banks' total assets. An example appears in Appendix 1.12) It was suggested that included in capital should be paid-up capital and undistributed reserves, including hidden reserves and genuine and stable unrealised accretions of value to assets which could be realised if necessary. Deducted from capital would be investments in subsidiaries, and loans with a similar character, in order to avoid double counting of the same capital in the hands of a bank and its subsidiary.13) Although a number of questions on details have been asked,no fundamental objection has been made against this proposal, nor a better idea put forward. The detail which seems to have been of most concern so far relates to the inclusion of contingent liabilities of all varieties in the ratio.Some of these are undeniably of very low risk. However, whether they are a sufficient large amount to be of material importance to the result of the calculation remains in doubt.14) The Commission went on to suggest that it would be possible to substitute for the present statutory limits on certain loans the deduction of the excessive part of them from capital in the calculation of the above ratio. It itself this idea seemed to be favourably received. However, the effect of deducting those parts of loans in excess of 25% of capitalis very substantial for a number of foreign bank owned institutions relying on parental comfort letters. The ratio correctly identifies the fact that the Hongkong subsidiary taken by itself would be overtrading, and is dependent on . its parent's capital. The possible lack of '

/ clarity ....

* Deducted from the total of assets would be provisions made against diminution in their value, and investments in subsidiaries and other loans of a capital nature, which it is proposed would be deducted from capital.


4

clarity in lines of managerial and financial responsibility inherent in this situation are worrying. At the least, the Commission needs assurance that the parent knows what its subsidiary is doing, controls it adequately, accepts full responsibility for it, and has the means of ensuring its subsidiary remains adequately capitalised if something goes wrong. The simplest way to clarify the lines of responsibility would be to request that foreign bank parents wishing to support overtrading in their Hongkong subsidiaries should demonstrate their wish by transforming the subsidiaries into unlimited liability companies. The question would then become largely one of ensuring that the parent was capable of supporting its subsidiary. Other ideas would be very . welcome.35) The Commission suggested that this measure of capitaladequacy could be the basis for a statutory requirement. If this set a standard minimum legal requirement for all banks, it would be necessary to establish a level which provided a reasonable safety margin for indifferently managed or highly exposed banks, notwithstanding that this was unnecessary for well managed banks with a better spread of risks. The Commission suggested 10% capital cover of

the total of "risk assets".16) It is clear that a number of banks regard this as too onerous for them, believing they are well managed and have a good spread of risks. They therefore naturally preferred the Commission's alternative proposal that 10% should be the reference level for exercise of the Commission's discretion, if the Commission were to be allowed to exercise discretion. However, it should be clear that the Commission's present view of the desirable range of its discretion is from about

8% to possibly 20%. Very few banks should in present circumstances expect the Commission happily to contemplate a ratio of less than 10%.

Liquidity17) The Commission's view is that liquidity is much more difficult then capital adequacy to measure in a standard manner. The liquidity of a portfolio is so dependent on its quality, and the need for liquidity in a bank so dependent on its particular circumstances at the time. The Commission put forward for discussion an idea based on measuring future cash flows. Although it outlined a possible basis for setting a statutory standard requirement based on this method of measurement, it also questioned if any standard requirement would serve much

‘ real purpose.18) There appears to be quite a strong feeling amongst banks that, although there is no simple standard requirement that is fair to all, something should exist as a discipline against wild excess, but that it should be accompanied by separate assessment by the Commission of each bank's liquidity policies and adherence to them, which would give full weight to the particular circumstances of that bank.

/ 19)


5 -

19) The Commission would propose that a simple standard requirement applied to all should be assessed by reference to all current liabilities callable or maturing within three months. Against a proportion of these liabilities should be held a wider range of assets regarded as liquid than is presently the case. However, the less liquid assets specified as liquid should be included at a discount on their balance sheet value. Included within this category of liquid assets subject to a discount might be certain types of small ticket loans which can be assembled into saleable or refinanceable packages quickly; e.g. residential mortgage or instalment credit loans, but this would have to be determined on a case-by-case basis by the Commission. The most obvious loophole in this proposal is the ability to generate illusory liquidity by lending and borrowing interbank at identical maturity. To counter this, while still giving due weight to the liquidity of short-term deposits with banks, it is suggested that interbank claims should be netted off against interbank liabilities rather than treated as a liquid asset. If a net interbank claim position resulted, it would be set off against other liabilities attracting a liquidity requirement. The ratio is illustrated in Appendix 2.

20) It is too early to predict what the requirement if based on this measure would be, but in the Commission's view it should be set at a level which is broadly equivalent in terms of liquidity held to that of the present liquidity ratio.21) The Commission has little confidence that this ratio, or something like it, will have much more than cosmetic effect.Its only virtue as an across-the-board requirement is that in its coverage of interbank liabilities it is better than the present statutory liquidity ratio. Interbank liabilities have proved to be a major cause of liquidity problems in the recent past. But it is not proof against avoidance, it takes no account of the particular circumstances of each bank, and in particular it does not cover the fundamental aspect of the underlying liquidity inherent in a high quality loan portfolio. It will need to be accompanied by careful monitoring of the quality and maturity of a bank's assets and liabilities and their assessment in a more flexible manner through regular statistical returns as well as examination. In forming its view about the adequacy of each bank's liquidity, the Commission would not undertake to place any reliance on the proposed standard ratio.22) The Commission also suggested that insufficient weight had been given in the past in the monitoring of liquidity to a bank's ability to borrow or sell non-liquid assets. It noted that in practice these were often the first resortof bankers when faced with a liquidity problem. It suggested * that an important safeguard was the availability of unhypothecated assets which could be used as security for a loan, or sold. It therefore seemed sensible for the giving of charges by a bank over its assets to be brought within the ambit of control by the Commission, so that it would be alerted at an * early stage to a possible deterioration of that bank's liquidity, and be in a position to influence the form of remedial action.

/ 23)


- 6

23) The logic of this suggestion was generally supported by the banks, but a number of practical difficulties were foreseen Some smaller banks have a sound business based on borrowing on the security of their assets. Banks are also obliged to put up margin deposits in respect of securities, futures, commodities and other market transactions. The Commission must not unreasonably withhold its consent to the giving of charges if the policy is to be a success. Equally the Commission would need to be very cautious about permitting so many assets to be charged that there remained insufficient unhypothecated assets to cover depositors' claims.

Th.e role and content of the monthly statistical return

24) At present the monthly statistical return is a rudimentary balance sheet cast in a particular form to facilitate the working out of the liquid assets ratio. It is not wellsuited to keeping track of business developments, and is useless as a means of monitoring profitability, larger single risk exposures and possible future cash flows.

25) The inadequacies of the statistical return mean that reliance is placed on the Commission's examinations of each bank to track its business. This is time consuming and expensive both for the Commission and the banks, and is not likely to give early warning of adverse trends. The Commission believes the regular statistical returns should have a greater rolein the supervisory process.

26) The Commission proposed a wider ranging replacement for the present monthly statistical return, a mock-up of which appears as Appendix 3. The proposal was that the return should be submitted quarterly by most banks, but with the possibility of greater or lesser frequency of parts or all of it, at the Commission's discretion.

27) Banker's opinions as to the scope of the proposed returnhave varied from a feeling that it does not go far enough, to a view that the contents are too sensitive for regular submission to the Commission. However, so far the Commission has not received any opinions which seriously undermine either the objectives behind the proposed changes or the changes themselves. '

28) Before introducing a new return the Commission would seek to establish a working party of bankers to study technical detail and definitional problems. Adequate time will need

. to be allowed for the development within each bank of systems enabling it to complete the return. It would also seem sensible to stagger its introduction, starting with Part V (large items).


7

Examinations and audits

29) The introduction of a better statistical return should enable the Commission to become more discriminating in determiningthe frequency of examination of each bank. From the Commission's point of view less frequent examinations will increase the importance of external audit of annual accounts, which is the only other periodic assessment independent of management of the business of each bank.

30) The Commission expressed a desire for a form of contact with auditors that is known to and approved by the client bank.It proposed enlarging the present arrangements (which seem to have proved satisfactory) for the audit of one monthly statistical return per year to cover the operational area of management control and accounting systems. Each bank might be required to have audited the accuracy of its answers to standard questions put by the Commission on these subjects.

31) The main fears so far expressed by bankers, and they seem quite strongly felt, is that this would be an expensive and probably unproductive process. However, no objection was expressed to the idea of more direct informal contact between auditors and the Commission provided the clients were generally aware such discussions were taking place.In light of these views, the Commission has begun discussions with the Hongkong Society of Accountants as to how the matter should be taken forward.

Other issues

32) There are a number of other issues, not covered in this paper, which have been raised. These have included revisions to the form of deposit-taking authority available under the Banking and Deposit-taking Ordinances, powers of the Commissioner to approve controllers of banks, deposit insurance, and a discount window. Any proposals for change in these areas would be the subject of separate consideration.


Appendix 1

Risk Asset Ratio

Balance Sheet

300 835

10

5250

1400

Capital and reserves 150Less investments in subsidiaries (10)

goodwill (5) (15)

* CAPITAL BASE 135

Liquid assetsLoans and advances (net)Contingent liabilities

* Risk assets

Book value X Weight “ Total300 X 0.2 - 60835 X 1.0 m 835250 X 1.0 8 250

1145

Paid up capital and reserves Current liabilities

Contingent liabilities

1501000

250

1400BSSSSSS

Liquid assetsLoans & advances

(net of provisions)investments in

subsidiariesGoodwillContingent assets

135Ratio = ----- x 100 * 11.8%

1145 =====


Appendix 2

Revised Liquidity Ratio

Liability base

LESSADD

Interbank liabilities ))

Interbank assets ))

Other liabilities )= Total liability base for

(

callable or maturing J within 3 months

(

ratio Ass=s: iissssss

Liquefiable assets

Liquid assets (as presently defined, but excluding interbank assets)

ADD Say, 75% of lower of book or market value of other unhypothecated marketable securities held as short term or portfolio investments

ADD Say, 60% of unhypothecated performing term loansrepayable by instalment, specified by Commissioner as marketable or refinanceable= Total liquefiable assets = B

Ratio=================


1.11.212

pAr.T I • BALANCE SHEET

Paid up capital and reserves Current year's profits

LIABILITIESAppendix 3

H.K.'000

SHAREHOLDER'S FUNDSDEPOSITS.FROM. PUBLIC (as..., defined in subsection 18(5)) , A A

3.1 ( Borrowings from authorised ) - in Hong Kong3.2 l banks and deposit-takers345

()̂ - elsewhere'B(WMiS8SM FINANCIALNOTES IN CIRCULATION OTHER LIABILITIES

m^y^

v//y//////

■'///, ////.

V//A:w/. '■

^///A

9 (-19.) TOTAL LIABILITIES k//,v ////m

10.110.2

10.310.4 1011.111.21112.112.212.312

13.113.213.313

14.1 14. \14.314.414.514.61415

Cash and marketable goldClaims on banks at call and snort noticeTreasury bills CD's & other money market instrumentsBills of Exchange

ASSETS

Approved as specified liquid assets

))

SPECIFIED LIQUID ASSETS ) - in H.K.

'///////////yOther claims on authorised banks & deposit-takers

= OTHER CLAIMS ON FINANCIAL INSTITUTIONS (Exposures(gross) to subsidiaries,) - loans & advances

investments(associates and other connected (parties by way of

- elsewhere

)) LESS Provisions made

- CONNECTED DIRECT EXPOSURES Other loans & advances - to H.K. residents

- to foreign residentsLESS Provisions made

■ LENDING TO PUBLICMarket value

Other investments - quoted equities- quoted debt- property including premises- fixtures and equipment used in theBusiness ^ c- goodwill and other intangible assets

. - Other• OTHER INVESTMENTS

OTHER ASSETS

v'/A////////%

/ ' -

yy////,''/

/ y /

/ ' ■ V X

• .' ■ • , ' y

/ / / / /

y/V/-V//V/, //■ ' - yBook value: / •

'//////'/>''

///■ ■/////,

W/?'A/////////'v/.,y //y ////\19 (-9) TOTAL ASSETS

20.1

20.2

20.320

CONTINGENT LIABILITIESLiabilities of and guarantees in respect of subsidiaries,

associat s and other connected partiesOther guaranteesOth r liabiliti s of customers______________ _ CONTINGENT LIABILITIES '■/■■ss"/


PART II PROFIT AND LOSS ACCOUNT

As at ______________ ; covering period of _____ months since ________(last annual accounts)

INCOME

100.1 Interest received and receivable100.2 Interest paid and payable100 a NET INTEREST INCOME101 INCOME FROM FOREIGN EXCHANGE OPERATIONS102 . INCOME FROM INVESTMENTS103 OTHER INCOME ,

wmmWmmfMMVM,W///WM

109 TOTAL INCOME w/m-y/MEXPENSE OPERATING EXFENSES

110.1 Provisions against )New provisions made,0 , , . . ?LESS Provisions released110.2 had & douhtful dehts) ■ - ■■ " recovered mm|( >

*§§§MEMORANDUM ITEM:Amounts written off - •- - - • -

from provisions

110 » NET CHARGE FOR DEBT PROVISIONS111 NET CHARGE FOR OTHER PROVISIONS112 AMOUNTS WRITTEN OFF FROM INCOME113 OTHER EXPENSES '

W/M///Mwmm,W//M/MW////////M.

119 TOTAL EXPENSE W///M//A120 EXTRAORDINARY INCOME/EXPENSE W////MW.1.2 Current year's profit

109-119+/-120) mmPART III . FOREIGN CURRENCY POSITIONS

( same as present Part IV of monthly r turn, except reported in KK$'00C ]


* • *PART V LARGE ITEMS HK$'000

1) LiabilitiesList below deposits from public and borrowings from financial

institutions which exceed 10% of total liabilities (item 9 of Part I). Different deposits/borrowings from the same depositor/lender should beseparately listed under the same depositor/lender. Depositors may beidentified by account or client code numbers. Use of a different code from that applied to the same client in a previous return must be indicated and cross-referenced.

Amount Earliest Contractual Has any securityCreditor (in HX$) Currency Maturity been given?

2) Assets and contingent liabilitiesList below the 10 largest exposures (whether derived from loans,

investments or customer's liability), and any other exposures in excess of 10% of paid-up capital and reserves (item 1.1 of Part I), to the credit worthiness of single parties and parties known to be financially connected or associated with them. Different claims on the same party should be separately listed under the same party.

Customer

?

Type of exposure

Amount (in HK$)

•

CurrencyWhen an interest or capital (re-) payment last made

Wholly, partly or unsecured?


FART IV MATURITY POSITIONS

Part ITitle 8 days Ov rdi1 month 3 months 6 months Over 6 months

LIABILITIESDeposits from public

Borrowings fromfinancialinstitutions

Total

ASSETSSpecified liquid assets

TOTAL

Other claims onfinancialinstitutions

Lending to public

Total

Net Asset position

NOTE: Liabilities and assets should be classified on the basis of the earliest contractual call, repayment or maturity date. If overdue, they should be reported in the >'OverdueM column.


FOREIGN STATE IMMUNITY: THE AUSTRALIANLAW REFORM COMMISSION'S RECOMMENDATIONS

In October 1984 the Attorney-General (Senator Evans) presented to Parliament the Australian Law Reform Commission's Report 24, Foreign State Immunity The Report, following a Reference to the Commission given in November 1982, recommends Australian legislation on the subject, in terms set out in Appendix I to the Report. The Report is available from AGPS bookshops at a cost of $9 50. The summary of recommendations follows:

Summary

A Changing Area of LawSince the early nineteenth century it has been recognised that foreign states and their

agencies are entitled to some immunity from the jurisdiction of courts of other countries. At a time when the amount of international trade and of other international contact, and the level of foreign state involvement in that trade and contact, were much less than they are today, foreign states tended to be granted absolute or at least general immunity from jurisdiction. But recent developments, both in judicial decisions and in legislation, have progressively reduced the scope of foreign state immunity, bringing it more into line with modern conditions and needs. In Australia, foreign state immunity is still governed by the common law, but there have been few cases. This Report examines the present Australian law and the overseas developments, as a background to determining what the law should be.

Underlying PrinciplesThere are good arguments both for extending a degree of immunity to foreign states be

fore Australian courts, and for limiting the scope of that immunity. The considerations supporting local jurisdiction (or immunity from it) reflect a variety of rules, principles and policies: on the one hand, the forum’s nexus with the dispute, its interest in applying its own rule, the likelihood that the dispute will be susceptible to local judicial determination, the principle of consent, and forum conveniens; on the other hand, notions of comity and reciprocity, respect for other sovereignties and for established principles of international law (such as the immunity of foreign public ships) and an assessment of the risk to foreign relations of excessive claims to jurisdiction. Although these arguments support an approach based on restrictive immunity, they do not point to a single distinction between immune and non-immune cases as appropriate or necessary, whether it is a distinction between ‘private* and ‘public’ law, or between ‘commercial’ and ‘governmental’ transactions. Common law courts have been developing such a distinction, but their approach has a number of difficulties. The better approach is to deal with the various categories or classes of cases that can arise and to fashion specific rules for each category, taking into account the reasons for according immunity or for asserting jurisdiction in that specific context.

The Need for Australian LegislationThere have been few Australian cases in this area. However it cannot be assumed that this

will remain the case, especially if foreign states become increasingly involved in investment, banking or other activities in Australia. The common law has been developing rapidly in the last decade, but further development in countries, such as the UK, Canada, Singapore and South Africa, which have legislated on the question is now cut off. Moreover the common law remains unclear or uncertain on some questions, including:

the necessity for closer jurisdictional links with state transactions than in other cases; the ambit of exceptions relating to local property, trust funds etc;

• the permissible scope of execution against foreign state assets;the proper methods of service of process and related procedural questions.


jcw / Summary

On other questions (eg waiver of immunity) the common law is apparently settled but quite unsatisfactory. More importantly, the single distinction between immune and non-immune transactions which the common law has developed is not as responsive to the various underlying principles referred to above as appropriately drafted legislation can be.

The Commission concludes that legislation is desirable. This conclusion accords with the balance of opinion expressed to the Commission. The present law is uncertain in a number of respects. It proceeds upon a distinction between governmental and private or commercial transactions which is inappropriate or inadequate to deal with the full range of issues which Australian courts should have power to deal with. In the interests of avoiding possible foreign relations problems, Australia should articulate to foreign states more precise rules governing their liability to the jurisdiction of Australian courts. The Commonwealth should express its willingness to reconsider the legislation if a generally acceptable convention emerges from the work of the International Law Commission. However, it is desirable to legislate now, on the basis that adjustments can be made later to reflect any eventual international consensus.

Summary of Recommendations on Australian Legislation

Basic Approach and Key Definitions1. Foreign States Immunities Act. There should be an Australian Act, in the terms set out in

Appendix A to this Report, dealing with the immunities of foreign states and their agencies before Australian courts.

2. Basic Approach. The legislation should provide that foreign states are immune from the jurisdiction of Australian courts except as provided by the Act (para 63-5, and for the special meaning of ‘jurisdiction’ in this context see para 2). It should deal separately with procedural and enforcement questions (para 66).

3. Defining ‘Foreign State1. Since the legislation significantly restricts the immunities of foreign states, defining the ‘foreign state’ becomes less important. The Commission favours a broad definition of ‘foreign state’ for this purpose, so as to include any country outside Australia which is an independent sovereign state, or which is a separate territory (whether or not fully self-governing) that is not part of the territory of any foreign state. Such a definition makes it clear that other countries of the Commonwealth are included in ‘foreign states’ (para 67).

4. Executive Certification. A certificate by the Minister for Foreign Affairs as to the status of a foreign state or as to the location of an entity on the territory of another foreign state should be conclusive of the matters stated in it (para 68). But there should be no requirement that an entity be recognised by Australia for it to qualify as a foreign state under the legislation (para 69).

5. Agencies, Instrumentalities and Other Entities. The foreign state should be taken to include departments and organs which are part of its executive government (para 70-2). Immunity should also be extended, though on a more restrictive basis, to a ‘separate entity’ which while not part of the executive government of the foreign state is an agency or instrumentality of the state (provided that the entity is not an Australian national or corporation) (para 72-3).

6. International Organisations. Public international organisations are sufficiently protected in Australian law by the International Organisations (Privileges and Immunities) Act 1963 (Cth). However separate corporate entities sometimes act as agencies or instrumentalities of more than one state: in such cases they should be treated as a separate entity of each of them (para 74).


Summary / xvii

7. Units of Federal States and Other Political Subdivisions. Australian legislation should allow immunity to component units of foreign federal states on the same basis as to foreign states themselves. Since the term ‘federal state' has no fixed meaning it should be avoided: the term ‘foreign state’ should include political subdivisions such as provinces, states or other self-governing territories of foreign states, whether or not these may be classified as ‘federal’ units. The emphasis is on political subdivisions: this would exclude local government bodies with merely administrative or other subordinate functions. These should only be entitled to claim immunity if they qualify as separate entities (para 75).

8. Defining ‘Courts’. The definition of ‘court’ should be broad enough to cover any body in Australia which exercises broadly judicial functions, with respect to those functions. It should not depend on whether that body is properly described as a ‘court’ in some narrower sense. On the other hand, it should not extend to cover the exercise of legislative, administrative or conciliation functions.

Submission to the Jurisdiction9. Express Submission. If otherwise immune, a foreign state should be able to submit to the

jurisdiction expressly, by agreement or otherwise. Such a submission should be able to be made in advance, by international agreement or by a contract or other agreement in writing. Submission should extend to cover a unilateral declaration evidencing an agreement to submit, even though this may not (for example, for lack of consideration) constitute a contract. Submission should not be inferred from such things as the fact that Australian law was chosen, or determined to be, the proper law of the contract (para 78-9).

10. Conditional or Limited Submission. The facility to submit by prior agreement should extend to submission by prior agreement subject to specified limitations, conditions or exclusions (whether in respect of remedies or otherwise). Although courts do have some powers to guard against unreasonably limited or artificial conditions, it is desirable to confer an express power to this effect (para 80).

11. Submission by Initiating. Appearing or Intervening in Proceedings. It should be affirmed that a foreign state is not immune in respect of proceedings which it has initiated, or in which it appears, takes a step or intervenes, in order to address the merits of the case. On the other hand, appearance, taking a step, or intervention made for the purpose of or in the course of asserting immunity should not constitute a submission. In particular, an application for costs in a proceeding should not imply a submission. There is no need to make special provision for assertions of public interest immunity in respect of documents: these would not be taken as a submission under the general rule (para 81-2).

12. Appeals and Related Proceedings. A submission in a proceeding should extend to coverany appeal from or rehearing of that proceeding (including analogous procedures such as orders to review, applications for certiorari or prohibition in respect of the proceeding) but should not extend to a new action, even though the subject matter is the same as the original proceeding (para 83). .

13. Counterclaims and Set-offs. Where a foreign state has submitted to the jurisdiction, it should not be immune with respect to any counterclaim or set-off arising out of the same transactions or events as those to which the proceeding relates. This should include counterclaims the result of which is affirmative recovery by the defendant (para 84).

14. Withdrawal of Submission. To put the matter beyond doubt it should be provided that an agreement to submit is effective unless withdrawn in accordance with its terms (para 85).


xviii / Summary

15. Authority to Submit. It is not appropriate to state exhaustively who has authority to submit on behalf of a foreign state, but the legislation should state that, in particular:

• a person contracting on behalf of and with authority of the foreign state shall have the authority to submit in the contract to proceedings arising out of the contract; and

• the head of the foreign state’s diplomatic mission in Australia shall have authority to submit in any proceeding (para 86).

16. Submission by Mistake. Intervening or taking a step in proceedings should not constitute submission if the intervention or step was taken by a person who did not know and could not reasonably have been expected to know of the immunity, and the immunity is asserted without unreasonable delay.

Exceptions to Jurisdictional Immunity17. Commercial Transactions: The General Principle. In accordance with the general approach

outlined above, commercial transactions should be one amongst a number of exceptions to foreign state immunity: other specific exceptions should be recommended as necessary (para 88). So far as a specific commercial transaction exception is concerned, the guiding principle should be that when a foreign state acts in a ‘commercial’ matter within the ordinary jurisdiction of local courts it should be subject to that jurisdiction. The term ‘commercial transaction' should be defined objectively, so as to include any commercial, trading, business, professional or industrial activity in which the foreign state has entered or engaged, and in particular:

• any contract for the supply of goods or services;

• any agreement for a loan or in respect of the provision of finance;

• any guarantee or indemnity in respect of a financial obligation (para 90).

There should be no special requirement of a nexus between the transaction and Australia (para 91).

18. Scope of the Commercial Transactions Exception. No special provision is needed for contracts to be performed within the jurisdiction, in view of the breadth of the definition of commercial transactions (para 92). But contracts of employment and bills of exchange should be dealt with separately. States should be free to contract out of the jurisdiction, which should not in any event apply to inter-governmental transactions (ie those to which only foreign states, or foreign states and Australia, are parties). Nor should payments in the nature of scholarships, grants or pensions be included (para 93).

19. Contracts of Employment. A special provision is needed to take into account both the sensitivity of the employment relationship between a foreign state and its employees, and the interest of Australia in asserting jurisdiction over local employment. A foreign state should not be immune with respect to a contract of employment made in Australia or to be wholly or partly performed in Australia, unless made with a person who, when the contract was entered into, was a national of that state and not a national or permanent resident of Australia, or who was habitually resident in that state (para 94-97). But the provision should not apply in the following cases:• if the contract of employment otherwise lawfully provides (para 99);

• if the proceedings concern certain kinds of diplomatic and consular employees, viz:

•• (in all cases) members of the diplomatic staff of a mission and consular officers, as defined in the relevant international conventions; and


Summary / xix

•• to members of the administrative and technical staff of a mission and consular employees, as so defined, unless they were, when the contract was entered into, nationals or permanent residents of Australia (para 100).

20. Industrial and Intellectual Property. It should be provided that a foreign state is not immune in proceedings concerning the ownership, registration or protection in Australia of an invention, trade mark, or design, the ownership of a copyright or of the right to use a trade or business name, or in proceedings relating to an alleged infringement in Australia of a copyright, patent, registered trade mark or registered design (para 101-2). But this provision should not apply to the mere importation into or use of property in Australia otherwise than in the course of or for the purposes of a commercial transaction as defined (para 103).

21. Supervisory Jurisdiction over Arbitrations. A foreign state should not be immune from the supervisory jurisdiction of Australian courts over arbitrations occurring in Australia. This should include proceedings:

• to determine a question as to the validity or operation of the arbitration agreement, or as to the arbitration procedure;

• by way of a case stated for the opinion of the court;

• to set aside the award.

There should be no requirement that the subject matter of the arbitration be civil or commercial; the provision should apply generally, but subject to any contrary provision in the arbitration agreement. It should not apply to arbitrations involving only foreign states, the Commonwealth or international organisations (para 104).

22. Recognition and Enforcement of Arbitral Awards. Proceedings for the recognition and enforcement of arbitral awards should be dealt with clearly in a distinct provision. But a foreign state which agrees to arbitrate a dispute cannot necessarily be taken to have waived its immunity from jurisdiction to enforce the resulting award, throughout the world. A foreign state is competent to waive its immunity, and (by agreement to accept service or otherwise) to submit to the jurisdiction of the courts of any country. In the absence of express submission the better view is that the local courts should be able to enforce an award against a foreign state if, had the underlying dispute been brought before those courts for resolution, the foreign state would not have been immune. Accordingly, where, apart from particular stipulations to the contrary, a foreign state would not be immune in a proceeding concerning a transaction or event, it should not be immune in a proceeding to enforce an arbitral award made with respect to the transaction or event (para 105-7).

23. Other Arbitration Issues. On this basis no further provision is required for foreign state immunity from the jurisdiction of Australian courts over the merits of disputes referred to arbitration (para 108). Nor should specific provision be made for the enforcement of public international arbitrations (ie arbitrations under international law between states or other international persons). In the absence of a general international agreement or arrangement allowing enforcement in this way, the Commission believes that the provisions for submission (including submission by international agreement or treaty) already recommended go as far as is possible for legislation of a single state (para 109).

24. Membership of Bodies Corporate, Partnerships, etc. A foreign state should not be immune in disputes concerning its membership of a body corporate, unincorporated association or partnership that is locally established or controlled. However this provision should not apply where all the members of the body or partnership are foreign states or the Common-


xx / Summary

wealth, or where provision to the contrary is made in the constituent instrument of the body, or in any agreement between the parties to the dispute (para 110).

25. Bills of Exchange. Where a foreign state has given a bill of exchange in connection with a non-immune transaction or event it should not be immune if it is sued on the bill of exchange rather than on the underlying transaction or event (para 111).

26. Taxes. A foreign state should not be immune in proceedings concerning an obligation imposed on it by a provision of a law of Australia that relates to taxation, where the provision is prescribed by the Governor-General as one with respect to which the foreign state is not immune for the present purpose. This will allow consistency to be maintained between the proposed legislation and the substantive taxation law of the Commonwealth, while enabling collection of State or local government taxes where proper in accordance with principles adopted by the Commonwealth for subjecting foreign states to taxation under Australian law (para 112).

27. Personal Injury and Damage to Property. A foreign state should not be immune in a proceeding concerning:

• death or personal injury;

• loss of or damage to tangible property

caused by an act or omission in Australia (para 113-5).

28. Immovable Property. A foreign state should not be immune in proceedings concerning its interest in, or its possession or use of, immovable property in Australia, or concerning any obligation arising out of its interest in or possession or use of such property. Such a provision would cover such things as actions for nuisance and occupier’s liability, and actions requiring the repair or demolition of delapidated property (para 116).

29. Other Property Disputes. Where a local court is administering, or supervising the administration of, property, it is appropriate that it should be able to adjudicate on all the conflicting claims to such property. Such situations include bankruptcy, insolvency, the winding up of companies, and the administration of trusts, of estates of deceased persons or of estates of persons of unsound mind. In addition there should be no immunity where a foreign state is in possession of or claims an interest in property by virtue of a gift or alleged gift made in Australia, and the validity of its title or possession is challenged. But questions of bona vacantia are already adequately covered and require no further provision (para 117).

30. Property in a State's Possession or Control. There should be no further specific immunity of a foreign state with respect merely to possessory interests in property. If a foreign state believes that its interest in property or its control over property will be threatened by a proceeding to which it is not a party the foreign state should take steps to inform the court of its interests. The crucial point is to what extent the foreign state thereby submits to the jurisdiction. This is more appropriately dealt with in a provision on submission to the jurisdiction than on immunity with respect to proceedings concerning property. It is dealt with in recommendation 11 above: no further provision is necessary (para 118).

31. Application of Provisions on Immunity from Jurisdiction to Separate Entities. In general, separate entities should be treated in the same way as foreign states for the purposes of the provisions on immunity from jurisdiction (recommendations 17-30), including submissions (recommendations 9-16). But the exclusions for ‘inter-state transactions’ (see recommendations 18, 21, 24) should not apply to separate entities (para 89, 98).


Summary xxi

Remedies against Foreign States32. Basic Principle. In principle, and in the absence of satisfactory arrangements for securing

compliance with judgments, the assertion of judicial jurisdiction over a foreign state should be regarded as entailing an assertion of the right to enforce any resulting judgment by appropriate means. But because questions of enforcement are controversial, and because the rules on jurisdictional immunity cannot simply be applied or transferred to this area, special provisions are necessary. These should not be matters exclusively within the control either of the executive government, or of the foreign state (para 119).

33. Waiving Immunity from Execution. A foreign state may waive its immunity from execution. Waiver may be either general or with respect to limited property or classes of property. But a general waiver should not apply to the special categories of protected property (see recommendation 36) unless that property is specifically designated for the purpose. The head of the foreign state’s diplomatic mission in Australia should be deemed to have the authority to waive immunity from execution as well as jurisdictional immunity. But there should be no similar provision for persons contracting on behalf of the foreign state (cf recommendation 15). Implied waiver of immunity from execution should be excluded (para 120-1).

34. Execution against Commercial Property. In the absence of waiver, execution against foreign state property should in general be limited to commercial property (para 122-4). There should be no requirement of a nexus between the transaction and the property executed against (para 125).

35. Defining Commercial Property. Commercial property should be defined as property substantially in use for commercial purposes. The term ‘commercial purposes’ should be defined independently of the term ‘commercial transactions’, and as including a trading, business, professional, or industrial purpose (para 125-6). The term ‘intended use* should be avoided: instead the legislation should provide that property which is apparently vacant or not in use shall be treated as in use for commercial purposes and therefore not immune unless the contrary is shown. A certificate of the foreign state’s head of mission should be admissible as evidence of the purpose to which property is being put (para 127).

36. Excluded Property. For greater security, certain specified property should be excluded from being commercial property for this purpose. This should extend to:

• a ship of war, a Government yacht, a patrol vessel, a police or customs vessel, a hospital ship, a defence force supply ship or an auxiliary vessel (para 129);

• property (other than ships) that is being used in connection with a military authority or defence agency for military or defence purposes (para 130);

• property that is in use predominantly for the purpose of establishing or maintaining a diplomatic or consular mission or a visiting mission of a foreign state to Australia (para 131).

37. The Position of Foreign Central Banks and Monetary Authorities. Foreign central banks and monetary authorities, which may be separate entities of the foreign state, should nonetheless be treated for the purposes of enforcement of judgments in the same way as the foreign state itself (para 132).

38. Foreign Cultural Property. Consideration was given to including in the category of exempt property, foreign state property of cultural, scientific or historical interest which is in Australia for exhibition pursuant to an agreement to which the foreign state is a party. But the


xxii / Summary

Commission believes that no provision is necessary. It is sufficient to rely on the general test for execution, and on the power to implement by regulation any treaty providing for immunity from execution (para 133).

39. Immovable Property Execution should be allowed against immovable property where a right in respect of that property has been established under the provision dealing with immovable property (see recommendation 28) (para 134).

40. Property Acquired by Gift or Succession. The same reasoning applies to property acquired by gift or succession (recommendation 29) (para 135).

41. Other Remedies. Where a foreign state is not immune from enforcement measures, these should extend to orders of an interim or final character, and whether procedural or substantive, which the court otherwise has power to make. However it is not appropriate to commit or fine foreign state officials failing to comply with such orders. Orders for the employment or reinstatement of persons should also be excluded (para 136-7).

42. The Position of Separate Entities. A separate entity (other than a central bank or monetary authority, as to which see recommendation 37) should be entitled to immunity from execution only where the judgment upon which execution is sought arose in a case in which the separate entity was entitled to immunity but had waived this entitlement. In such situations the separate entity should be accorded the same immunity as the foreign state (para 138).

Admiralty Actions in rem

43. Limitation to Actions in rem. Admiralty actions in rem are in a sense ‘hybrid*, involving elements both of jurisdiction and enforcement through arrest. Admiralty actions in personam do not need special treatment: the provisions already recommended are adequate to deal with such proceedings (para 139).

44. Scope of Arrest. A foreign state should not be immune in an action in rem against a ship to enforce a claim in connection with that ship if, when the cause of action arose, the ship was in use for commercial purposes. Arrest, detention or sale of a ship pursuant to an action in rem should only be possible if the ship was in use for commercial purposes at the time of arrest or detention. There should be no requirement of a special nexus between the claim and the forum: arrest of the res within the forum state should suffice. The definition of a ship in use for commercial purposes should be the same as the definition of ‘commercial property’ (see recommendation 35) (para 140-1).

45. ‘Associated Ship9 Arrest. The introduction of some form of ‘associated ship’ arrest is under active consideration by this Commission as part of its Reference on Admiralty Jurisdiction. It is recommended that whatever form of ‘associated ship’ arrest (if any) is introduced, it should apply to vessels owned by foreign states on the same basis as to privately owned vessels, provided that the wrongdoing ship was in use for commercial purposes when the cause of action arose, and the sister-ship was in use for commercial purposes when the proceeding was instituted (para 142).

46. Arrest of Cargo and Freight. Actions in rem should be permissible against state-owned cargo on the same basis as ships, but there should be no requirement that the ship in which the cargo is being carried have been in use for commercial purposes at any time other than the time of arrest or detention. The definition of ‘commercial property’ is adequate to cope with cargo. No specific provision is necessary to deal with freight (para 143).


Summary / xxiii

47. Ships Chartered or otherwise Controlled by Foreign States. It is undesirable to extend immunity to any ship in which a foreign state merely claims an interest, unless that interest is duly established and entitled to protection under the relevant law (para 144).

Procedural Matters48. Service of Process on Foreign States. Process for service on foreign states should be de

livered to the Department of Foreign Affairs, through the same channels as for service on private defendants, for service by the Department on the foreign state. The legislation should be sufficiently flexible to allow service by the Department upon the foreign mission in Australia, upon a mission of a third state looking after the interests of the defendant in Australia, or by the Australian mission in the foreign state on its Foreign Ministry, as appropriate in the particular case (para 147). Service should also be able to be effected in any manner to which the foreign state has agreed (whether by agreement or treaty) (para 149). These should be the only methods allowed in the legislation for service on the foreign state itself. All other local service should be excluded. But it should be provided that, where service has been attempted by some other method and the foreign state appears without raising any objection to the method of service, the foreign state may not subsequently question the validity of service (para 150).

49. Documentary and other Requirements for Service. Where service is through the diplomatic channel a number of ancillary requirements should be specified (para 151).

• All Service to be Service Out. All documents should comply with the rules of the issuing court for service outside the jurisdiction.

• Time-limits. Two months should be allowed before normal time limits for appearance, or other response to documents served begin to run.

• Proof of Service. The legislation should provide for a certificate from the Department of Foreign Affairs to be conclusive proof of service.

• Translations. A certified translation should be provided where English is not art official language of the foreign state.

50. Service on Separate Entities. Separate entities should be able to be served in accordance with an agreement made by, or a treaty applicable to, them (para 149). But there should be no other special provision for serving separate entities, which should be treated in the same way as other foreign corporations (para 152).

51. Service on Foreign Heads of State. Australian legislation should provide that the diplomatic channel is the sole alternative to consensual arrangements even where the head of state is sued in a private capacity (para 153).

52. Discovery. No special provision for privilege from discovery of foreign state documents is necessary or desirable, except for a provision excluding committal or fine, or the striking out of a defence, by way of penalty for failure to disclose documents or information (para 154).

53. Costs. No special provision on costs is necessary (para 155).

54. Default Judgments. Where a foreign state or separate entity fails to appear, the court before entering a default judgment should be required to satisfy itself that the foreign state or separate entity is not entitled to immunity. A copy of a default judgment against a foreign state should be served on the foreign state through the diplomatic channel, and enforcement of the judgment should be excluded except by leave of the court, until two


xxiv / Summary

months after such service is effected (or such longer period as the relevant rules of court provide) (para 156).

Other Related Matters55. Preserving Diplomatic and Consular Immunities. The proposed legislation should contain a

provision stating that nothing in it affects any immunity or privilege conferred by the Diplomatic Privileges and Immunities Act 1967 (Cth) or the Consular Privileges and Immunities Act 1972 (Cth) (para 158).

56. Preserving Immunities of Visiting Military Forces. Similarly, any immunity conferred by or under the Defence (Visiting Forces) Act 1963 (Cth) should be expressly preserved. The Commission draws attention to the need for a review of the working of s 17(1) of that Act in the light of the proposed legislation. Attention should also be paid, in the negotiation or renegotiation of status of forces agreements, to the desirability of excluding from local jurisdiction on a reciprocal basis disputes arising from activities of members of visiting forces as between themselves (para 159).

57. Preserving other Statutory Immunities. The proposed savings clause should also preserve immunities conferred on foreign states by or under other Commonwealth legislation (para 160).

58. Exclusion of Criminal Proceedings. The legislation should not apply to criminal proceedings (para 161).

59. Alteration of Immunities on a Basis of Reciprocity. Where the Governor-General is satisfied that the immunities and privileges conferred by the proposed legislation exceed those allowed to Australia by the laws of a foreign state he should be empowered to make regulations which modify the operation of the proposed legislation in relation to that foreign state with respect to the immunities in question (para 162).

60. Variation of Immunities in Accordance with Treaty. Where there is a treaty between Australia and a foreign state in which different provisions (whether giving greater or lesser immunity than the proposed legislation) have been agreed, the Governor-General should be empowered to modify the general regime by regulation so as to give effect to that treaty. The power should extend to variations by regulation so as to suspend or permanently stay litigation already commenced against a foreign state. The power should also allow execution on judgments already obtained to be suspended either temporarily or permanently. Provision will also be necessary to allow the courts to manage or supervise the sale of assets involved in litigation which has been suspended (para 162).

61. Foreign Heads of State in their Private Capacity. A foreign head of state acting in a private capacity should have the same immunities as a head of mission similarly so acting. These immunities should be extended also to the spouse of a foreign head of state, but not more widely to the family or retinue (para 163).

62. Prospective Operation of Legislation. The legislation should be prospective in effect only (para 164).

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