Digest of United States Practice in International Law

Chapter 13

PEACEFUL SETTLEMENT OF DISPUTES

Negotiation; Inquiry; Conciliation; Mediation;

Good Offices

Mediation

Middle East

On December 28, 1977, during a television interview, President Carter discussed the U.S. role as a mediator in the Middle East subsequent to the trip of Egyptian President Anwar el Sadat to Israel on November 19-21, 1977. During these three days, President Sadat met with President Ephraim Katzir, Prime Minister Menachem Begin, and others, and addressed the Knesset in a special session. Portions of President Carter's televised remarks follow:

Both President Sadat and Prime Minister Begin have been bold and courageous. We've been dealing with the Mideast question as a nation for decades-in a leadership role at least within the last two Administrations. And we see the complexity of the questions and the obstacles to progress. When I first became President, we spelled out the basic issues-withdrawal from occupied territories, secure borders, the establishment of real peace, the recognition of Israel's right to be there, and dealing with the Palestinian question.

We are now in a role of supporter. We encourage them to continue with their fruitful negotiations. We try to resolve difficulties, to give advice and counsel when we are requested to do it. This is a better role for us. In the past, we've been in the unenviable position and sometimes unpleasant position, sometimes nonproductive position as mediator among parties who wouldn't even speak to each other. So I think that the progress that has been made in the last month and a half has been remarkable and has been much greater than I had anticipated. And I know Sadat and Begin well and personally and favorably.

If any two leaders on Earth have the strength and the determination and the courage to make progress toward peace in the most difficult region that I've ever known, it is Prime Minister Begin and President Sadat. There is no reason for us to be discouraged about it. We will help in every way we can to let their progress be fruitful. I think that President Sadat and Prime Minister Begin could have reached a fairly quick solution of just the EgyptianIsraeli problem in the Sinai region. But this is not what they want. They both want to try to resolve the other questions-what is

real peace; will Israel be recognized as a permanent neighbor to the countries that surround them; can the Palestinian question, the West Bank, the Gaza Strip be addressed successfully? And knowing how difficult these questions are, I have nothing but admiration, further nothing but congratulations for them on what they have achieved so far.

78 Dept. of State Bulletin 9-10 (1978).

On Nov. 29, 1977, James C. Wright, Jr., majority leader of the House of Representatives, and Robert C. Byrd, majority leader of the Senate, introduced to their respective legislative bodies House Concurrent Res. 417 commending President Sadat and Prime Minister Begin on their efforts to bring peace to the Middle East. The text of the resolution, which was agreed to by both the House and the Senate on Nov. 19, 1977, reads as follows:

Resolved by the House of Representatives (the Senate concurring), That it is the sense of the Congress that Anwar el Sadat, the President of Egypt, and Menachem Begin, the Prime Minister of Israel, be commended for the courageous steps they have taken to resolve the differences between their nations and to bring peace between Israel and her Arab neighbors through face to face negotiations in the context of a Geneva conference. We hope this will result in further face to face negotiations which will lead to a comprehensive, just and durable peace.

For a chronology of events in the Middle East from Nov. 9 until Nov. 30, 1977, see 77 Dept. of State Bulletin 880–881 (1977).

For further information concerning Israeli-occupied territories, see post, Ch. 14, § 2, pp. 920-927.

Southern Rhodesia (Zimbabwe)

On September 2, 1977, U.S. Ambassador to the United Nations Andrew Young and British Foreign Secretary David Owen held a joint news conference in London to discuss the text of the proposals for establishing majority rule in Zimbabwe (Southern Rhodesia) presented to the British Parliament on September 1, 1977, by Foreign Secretary Owen. Ambassador Young and Foreign Secretary Owen had just returned from Africa where they held consultations with leaders in Nigeria (August 26), Zambia (August 26-28), South Africa (August 28-30), Tanzania (August 30), Kenya (August 30-September 1), and Zimbabwe (September 1).

During the news conference, Ambassador Young described the U.S. role with regard to these proposals in part as follows:

[W]e are very much in support of this initiative. It was worked out with your Prime Minister [James Callaghan] and my President and we've kept President Carter in touch with events all along the way and he's been very encouraging of the work that Dr. Owen has been doing in taking the lead on this. We were in the position of having been told by the Africans—the first group of Africans we met almost that they did not want this initiative to in any way suggest some superpower rivalry in Africa and they wanted to see it as essentially a proposal of the United Kingdom and they welcome

the U.S. support but they insisted that our role be a supportive role. I think that's been the position of the front-line Presidents [Agostinho Neto of Angola, Seretse M. Khama of Botswana, Samora Moisés Machel of Mozambique, Julius K. Nyerere of Tanzania, and Kenneth David Kaunda of Zambia] and the patriotic front and everybody else. That's a role that suits me just fine and it's been a very good trip. We have worked very closely together but it's been Dr. Owen who's had to put the hard questions and take the tough positions on all sides and my role has been essentially a supportive role.

I think the economic strain on South Africa and the overall potential of this situation to degenerate into something like the situation in the Horn of Africa, we think is serious enough for us to put a major commitment in place. I have to say though that that commitment for a number of reasons does not include a military presence, but the diplomatic, the economic influence of the United States is in full support of this initiative.

77 Dept. of State Bulletin 418 419.

The text of the proposals reads as follows:

FOREWORD

The British Government, with the full agreement of the United States Government and after consulting all the parties concerned, have drawn up certain proposals for the restoration of legality in Rhodesia and the settlement of the Rhodesian problem. These proposals are based on the following elements:

1. The surrender of power by the illegal regime and a return to legality. 2. An orderly and peaceful transition to independence in the course of 1978. 3. Free and impartial elections on the basis of universal adult suffrage. 4. The establishment by the British Government of a transitional administration, with the task of conducting the elections for an independent government.

5. A United Nations presence, including a United Nations force, during the transition period.

6. An Independence Constitution providing for a democratically elected government, the abolition of discrimination, the protection of individual human rights and the independence of the judiciary.

7. A Development Fund to revive the economy of the country which the United Kingdom and the United States view as predicated upon the implementation of the settlement as a whole.

A full account of the proposals is attached. The first of the Annexes to the proposals outlines the principal points of the proposed Independence Constitution; the second Annex deals with the Constitutional arrangements during the transition period; and the third Annex relates to the Development Fund. The precise provisions of the Independence Constitution will have to be elaborated in further detailed discussions with the parties and in due course will be considered at a Constitutional Conference to be held during the transition period.

It is impossible at this stage to lay down an exact timetable: but it is the intention of the British Government that elections should be held, and that Rhodesia should become independent as Zimbabwe, not later than six months after the return to legality. To achieve this it will be necessary to proceed as quickly as possible after the return to legality to the registration of voters, the delimitation of constituencies, the detailed drafting of the Constitution and its enactment under the authority of the British Parliament.

PROPOSALS FOR A SETTLEMENT IN RHODESIA

1. On March 10, 1977, the British and United States Governments agreed to work together on a joint peace initiative to achieve a negotiated settlement in Rhodesia. The objective was an independent Zimbabwe with majority rule in

2. To succeed, any settlement must command the support of those people of goodwill of all races and creeds who intend to live together in peace as citizens of Zimbabwe. Amongst these people there are now many conflicting interests and views. There is an atmosphere of deep distrust. The armed struggle has led to the loss of many lives and to much human suffering. The economy has been gravely weakened. But there is surely one overriding common interest, that peace should be restored and that government with the consent and in the interest of all the people should be established.

3. In April the British Foreign and Commonwealth Secretary, Dr. [David] Owen toured the area and met all the parties to the problem as well as the Presidents of the five Front-Line States, the Prime Minister [John Vorster] of South Africa and the Commissioner for External Affairs [Joseph Garba] of Nigeria. He set out the elements which, taken together, could in the view of the two Governments comprise a negotiated settlement, as follows:

(a) A Constitution for an independent Zimbabwe which would provide for(1) a democratically-elected government, with the widest possible franchise; (2) a Bill of Rights to protect individual human rights on the basis of the Universal Declaration of Human Rights. The Bill would be "entrenched" so that amendment of it would be made subject to special legislative procedures and it would give the right to an individual who believed his rights were being infringed to seek redress through the courts;

(3) an independent judiciary.

(b) A transition period covering the surrender of power by the present regime, the installation of a neutral caretaker administration whose primary role, in addition to administering the country, would be the organization and conduct of elections in conditions of peace and security and the preparation of the country for the transition to independence. This period, it was envisaged, would be as short as possible, and in any case not more than six months.

4. Following that tour, Dr. Owen and the United States Secretary of State, Mr. Vance, met in London on May 6 and agreed to carry forward their consultations with the parties on the basis of these proposals. To this end they established a joint consultative group. The group met all the parties on a number of occasions in London and in Africa and carried out detailed technical discussions with them. In parallel, the Governments of interested countries have been kept informed generally of the progress of the consultations.

5. On the basis of these consultations the British Government, in full agreement with the United States Government, have now decided to put firm proposals forward, covering the three aspects of the problem described in paragraph 3 above. In doing so they emphasize that the three aspects are intimately linked and must be judged as a whole. It is impossible for every single aspect of a settlement to be acceptable to everyone. The best, if not the only, hope for a settlement is a balanced and fair package in which, though no one may achieve all their aims, everyone can see hope for the future. The Constitution

6. It is proposed that the Independence Constitution should provide that Zimbabwe would be a sovereign republic. Provision would be made for democratic elections on the basis of one man, one vote and one woman, one vote, for a single-chamber National Assembly. Elections would be on the basis of singlemember constituencies. Detailed constitutional proposals are set out at Annex A. The proposals should not necessarily be taken as excluding alternative possibilities in certain areas which do not go to the heart of the Constitution: e.§., provision is made for an executive President with a Vice-President, but there might instead be a constitutional President and a Prime Minister, in which case many of the powers which it is proposed to vest in the President would be vested in the Prime Minister or would be exercised by the President on the advice of the Prime Minister.

7. Discrimination would be forbidden by a Bill of Rights protecting the rights of individuals. As described above (para. 3(a) (2)), this Bill of Rights would be entrenched in the Constitution and would be justiciable so that aggrieved individuals could enforce their rights through the courts. The Bill of Rights

would permit the Government of Zimbabwe to introduce measures of land reform while guaranteeing the right to private property. The Constitution would also establish an independent judiciary and an independent Public Service Commission to ensure an efficient and nonpolitical civil service.

8. The Government of Zimbabwe would inherit the assets and debts of the Government of Southern Rhodesia and would take over past and present pensions obligations in the public sector, the rights of the pensioners being guaranteed by the Constitution. The Constitution would contain the basic provisions regulating Zimbabwe citizenship and these would be entrenched. The question whether there should be any restrictions on the possession of dual citizenship and, if so, whether there should be an extended period during which the choice would have to be made would be a matter for further discussion with the parties.*

9. The Commonwealth Governments in London expressed the unanimous hope that Zimbabwe would soon become a member of the Commonwealth. The British Government will do everything to facilitate this.

The Transition

10. It is a basic premise of the British and United States Governments that the present illegal regime will surrender power so that the transitional administration may be installed peacefully. The two Governments will take such steps as seem to them appropriate to secure the transfer of power by Mr. [Ian] Smith (or his successor) on a day to be agreed.

11. The British Government will place before the Security Council their proposal for the Independence Constitution (Annex A) and also their proposal for the administration of the territory of Rhodesia during the transition period leading up to independence. The latter will comprise the following elements:

(a) The appointment by the British Government, either under existing statutory powers or under new powers enacted for the purpose, of a Resident Commissioner and a Deputy. The role of the Resident Commissioner will be to administer the country, to organize and conduct the general election which, within a period not exceeding six months, will lead to independence for Zimbabwe, and to take command, as Commander-in-Chief, of all armed forces in Rhodesia, apart from the United Nations Zimbabwe Force (see below).

(b) The appointment by the Secretary-General of the United Nations, on the authority of the Security Council, of a Special Representative whose role will be to work with the Resident Commissioner and to observe that the administration of the country and the organisation and conduct of the elections are fair and impartial.

(1) the supervision of the cease-fire (see below); (2) support for the civil power;

(3) liaison with the existing Rhodesian armed forces and with the forces of the Liberation Armies.

The Secretary-General will be invited to appoint a representative to enter into discussions, before the transition period, with the British Resident Commissioner designate and with all the parties with a view to establishing in detail the respective roles of all the forces in Rhodesia.

(d) The primary responsibility for the maintenance of law and order during the transition period will lie with the police forces. They will be under the command of a Commissioner of Police who will be appointed by and responsible to the Resident Commissioner. The Special Representative of the SecretaryGeneral of the United Nations may appoint liaison officers to the police forces. (e) The formation, as soon as possible after the establishment of the transitional administration, of a new Zimbabwe National Army which will in due course replace all existing armed forces in Rhodesia and will be the army of the future independent State of Zimbabwe.

(f) The establishment by the Resident Commissioner of an electoral and boundary commission, with the role of carrying out the registration of voters, the delimitation of constituencies and the holding of a general election for the purposes of the Independence Constitution.

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