Commissioner designate and with all the parties, concerning military and associated arrangements that are considered necessary to effect the transition to majority rule in Southern Rhodesia . . "The resolution also requested the Secretary-General to "transmit a report on the result. . . to the Security Council as soon as possible . . . There were 13 votes in favor and none opposed. The Soviet Union abstained, and the People's Republic of China did not participate in the voting.

U.N. Docs. S/PV.2034, Sept. 29, 1977, pp. 29-30; S/RES/415, Sept. 29, 1977.

The resolution was sponsored by the United Kingdom and supported by the United States. During his remarks in support of the resolution, Ambassador Andrew Young, U.S. Permanent Representative to the United Nations, discussed, inter alia, the role of the Security Council and the Secretary-General in finding an internationally acceptable solution in Zimbabwe. Set forth below are portions of Ambassador Young's remarks:

We are here today looking for an internationally acceptable solution. There are many solutions which are possible but only from this body can come a solution which is both permanent and internationally acceptable. The way this body has operated, and especially the way our Secretary-General has operated, is an indication that perhaps . . . we can approach at least this phase of the exercise with some measure of confidence. Under some circumstances a SecretaryGeneral might be able, without calling a Security Council, to appoint a representative to observe talks about military arrangements leading up to a cease-fire, and yet Secretary-General Waldheim has sought to consult with the Council and to take his mandate from the Council. In everything we have done in Namibia there has been an effort on the part of the Secretary-General to work in consultation with the members of the Council. That is not something that is mandated by the Council necessarily, it is something which the Secretary-General accepts as his obligation and the responsibilities of his office.

As we are approaching an internationally acceptable solution and as we accept the responsibilities of this Council for an internationally acceptable solution, we are in fact giving Zimbabwe an opportunity for a permanent solution. We are giving Zimbabwe an opportunity to move towards independence and towards majority rule without a lot of the in-fighting, struggle and internal dissension that has inevitably gone with the struggle for freedom when it has not been accompanied by the support of the entire international community.

I hope that the Council will support this proposal and, more than just supporting this limited first step, will support the entire process and see to it that, as reports come back to us, we seek to find

some way of bringing about freedom, independence and justice in Zimbabwe and minimizing the shedding of blood and the destruction of the resources of that country.

U.N. Doc. S/PV. 2033, Sept. 28, 1977, pp. 21–23.

U.S.-Canadian International Joint Commission

Role of U.S. Representatives at Public Hearings

On February 16, 1977, Deputy Assistant Secretary of State for Canadian Affairs Richard D. Vine wrote to William A. Bullard, Secretary of the U.S. Section of the U.S.-Canadian International Joint Commission, outlining the U.S. view as to the appropriate role of governmental representatives for the United States and Canada with respect to International Joint Commission reference activities. Mr. Vine was responding to a previous letter dated February 9, 1977, from Mr. Bullard advising that representatives of the Governments of Canada and the United States would be welcome to attend a meeting of the Commission concerning the report of its Task Force on an equitable apportionment of the waters of the Poplar River system. Mr. Bullard had previously invited the Province of Saskatchewan, the Saskatchewan Power Corporation, the State of Montana, and the Fort Peck Sioux and Assiniboine Tribes of Northeastern Montana to appear before the Commission to clarify arguments made in the briefs of each of these parties concerning this matter in proceedings for which a verbatim transcript would be made and which would be open to the public. Portions of Deputy Assistant Secretary Vine's letter of February 16 follow:

Pursuant to the Commission's invitation, Counsel for the United States Government will observe these further proceedings. Consistent with our policy regarding matters before the Commission under joint Reference pursuant to article IX of the Boundary Waters Treaty of 1909, the United States representatives will not be expected to comment substantively on the issue before the Commission. The record reveals certain cases in the past in which the article IX Reference process has, in our opinion, been impaired by the advocacy of substantive positions by governments on matters referred by them to the Commission for impartial technical investigation, scrutiny, and advisory report. Such advocacy in these cases has proven to be counter-productive, making more difficult the task of the Commission and the success of ultimate government-to-government negotiations in light of the Commisson's activity. Nonetheless, there may be occasions on which the Commission will seek clarification of or further guidance regarding the terms and objectives of the governments' Reference, and from time to time other, unusual circumstances in which substantive comment by Counsel may be appropriate and desirable.

We trust that the Commission intends to publicize these additional proceedings through appropriate means in Montana and will make provision for entertaining further information which other interested parties in the State may wish to provide to the Commission. A copy of this letter is being provided to the Department of External Affairs [of Canada].

Dept. of State File No. P77 0128-1510.

Art. IX of the Treaty Relating to the Boundary Waters and Questions arising along the Boundary between the United States and Canada signed on Jan. 11, 1909 (TS 548; 36 Stat. 2448; 12 Bevans 319; entered into force May 5, 1910), appears below:

ARTICLE IX

The High Contracting Parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between the United States and the Dominion of Canada, shall be referred from time to time to the International Joint Commission for examination and report, whenever either the Government of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred.

The International Joint Commission is authorized in each case so referred to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference.

Such reports of the Commission shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law, and shall in no way have the character of an arbitral award.

The Commission shall make a joint report to both Governments in all cases in which all or a majority of the Commissioners agree, and in case of disagreement the minority may make a joint report to both Governments, or separate reports to their respective Governments.

In case the Commission is evenly divided upon any question or matter referred to it for report, separate reports shall be made by the Commissioners on each side to their own Government.

On Feb. 17, 1977. Karl K. Jonietz, a Foreign Service Officer serving in the Office of Canadian Affairs of the Dept. of State, gave further definition to the U.S. view of the proper role of government representatives before the International Joint Commission (IJC) in a letter he wrote to John Blane in the Office of International Activities of the Environmental Protection Agency (EPA). Mr. Jonietz outlined as well U.S. “practice as regards the testimony of various agencies of the executive branch, including this Department, at public hearings held by the International Joint Commission." Portions of his letter follow:

. . You are . . . aware that reports presented to governments, pursuant to joint references under article IX of the Boundary Waters Treaty of 1909, are advisory. The purpose of these references is to obtain an impartial, binational, and technically qualified examination of and recommendations concerning the international aspects of . . . questions along the boundary. As such, reports of the IJC are always the subject of subsequent review and evaluation by interested agencies of the United States Government as well as negotiations between the two Governments.

In light of the nature and purpose of the article IX Reference process, it would be inappropriate for agencies of the U.S. Government, including this Department or EPA, to comment substantively on matters before the Commission in public hearings or otherwise, except in the most unusual circumstances. In such situations, or on occasions on which the Commission may seek further guidance from governments, U.S. Government counsel to the

International Joint Commission would present the position of this Government, taking into account as appropriate the views of all interested agencies. The IJC holds public hearings to permit the general public, State and Provincial governments, and other interested parties to make their views known regarding the matters before the Commission. The preliminary reports of Commission boards are not, technically, before the Governments, but rather before the Commission itself to consider in preparing its own final Report to Governments. In the case of the hearings scheduled for the Garrison Diversion Unit, EPA, along with all other interested Federal agencies, will have an opportunity to comment on and participate in the U.S. assessment of the Commission's Report to Governments, which is scheduled to be available in June 1977. EPA will, of course, play a key role on the U.S. negotiating team in any subsequent discussions with the Government of Canada, which will be based upon an agreed U.S. Government position. Representatives of interested Federal agencies may, of course, attend and observe the Commission's hearings.

For further information concerning the International Joint Commission, see ante, Ch. 2, § 4B, pp. 34-37; post, Ch. 7, § 11, pp. 612-630.

U.N. Resolutions and Declarations

In his November 11, 1977, statement concerning the Report of the International Law Commission on Its Twenty-Ninth Session, Robert Rosenstock, U.S. Representative to the Sixth Committee (Legal) at the United Nations, described, inter alia, how a U.N. General Assembly resolution may in exceptional cases contribute to the development of international law. Mr. Rosenstock's comments were made while discussing the Commission's proposed draft article 22, entitled "Newly Independent States," on succession of states in respect of matters other than treaties. Mr. Rosenstock took exception to the Commission's commentary in its Report suggesting that the U.N. General Assembly had "developed" the principle of permanent sovereignty over natural resources by passing Resolution 3201, entitled "Declaration on the Establishment of a New International Economic Order," and Resolution 3281, entitled the "Charter of Economic Rights and Duties of States."

Portions of Mr. Rosenstock's statement follow:

. In paragraphs 61 and 62 of the commentary on article 22 of the draft, the Commission discusses the principle of permanent sovereignty over natural resources. In paragraph 61, it correctly quotes the pertinent passage of the International Covenants on Economic, Social and Cultural Rights, and on Civil and Political Rights. However, in paragraph 62, it then proceeds to make this startling statement: "The General Assembly has only recently reiterated and developed that principle"-and in support of that conclusion quotes from General Assembly Resolution 3201 of the Sixth

Special Session and the Charter of Economic Rights and Duties of States.

My government finds this statement startling because it is open to the interpretation that this General Assembly, by its adoption of controverted resolutions, "develops" principles which arguably are of a legal character. That is an interpretation of the powers and practice of this Assembly which is not accepted by my government, and which does not conform to the United Nations Charter or to international law.

This Assembly is not a lawmaking body. Its resolutions, in the ordinary course, do not enact, formulate or alter international law, progressively or regressively. In the exceptional cases in which a General Assembly resolution may contribute to the development of international law, it can do so only if the resolution gains virtually universal support, if the Members of the General Assembly share a lawmaking or law-declaring intent-and if the content of that resolution is reflected in general state practice. The General Assembly Resolution on the Principles of International Law Concerning Friendly Relations and Cooperation Among States may be an authoritative interpretation of international law, adopted as it was unanimously and stated as it was by many Members to be such-at any rate, if it is supported by state practice. But the resolutions of the Sixth Special Session cannot be said to have developed international law on the points at issue, for, on those very points, my government and other Members of this Assembly expressed the most vigorous and precise disagreement. My government and others took particular care to state that those resolutions had no effect on the international law of matters which are comprehended by the concept of permanent sovereignty over natural wealth and resources. As to the Charter of Economic Rights and Duties of States, the situation, if anything, is clearer still. Sixteen states voted against key provisions of the article on permanent sovereignty and expropriation and nineteen voted for a substitute Western amendment; seventeen industrialized democracies voted for its deletion of article 16. To suggest that those resolutions "developed" the principle of permanent sovereignty is accordingly baffling, at any rate if the Commission is using the term in the sense of article 13 of the United Nations Charter.

For these reasons, my government takes serious exception to this passage of the Commission's report, which we find unnecessary as well as erroneous. Both codification and progressive development must proceed from a firm basis.

*

Press Release USUN-112 (77), Nov. 11, 1977, pp. 16-18.

For the text of art. 22 of the draft convention on state succession and related information, see ante, Ch. 2, § 2, pp. 14-15.

Par. 52 of the Report, found on p. 126, indicates that the Commission is preparing draft articles on succession of states in respect of matters other than treaties even though the Commission has not yet decided that a convention should be concluded: