¹ UNCIO Documents/(Eng.) G/l (a), Vol. 3, p. 24. The first amendment was subsequently adopted at the San Francisco Conference as part of Article 1 of the United Nations Charter in the following language: “The Purposes of the United Nations are . . . to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace” (italics added).

² For these amendments, see the United Nations Conference on International Organisation: Selected Documents (1946), pp. 89-109; 128-129. The Egyptian Delegation submitted a memorandum which would have included the codification of international law as one of the purposes of the United Nations. This was not accepted and Committee II/2 took up the matter as one of the functions and powers of the General Assembly (text of Egyptian proposal in volume cited, p. 94).

³ UNCIO Documents, Vol. 62, Verbatim Records of 10th Meeting.

See also UN Document A/122 (Memorandum prepared by the Secretariat), 17 October 1946, pp. 9-12.

⁴ Verbatim Minutes of the 21st Meeting of Committee II/2, UNCIO Documents, Vol. 63, cf. Verbatim Minutes of the 10th Meeting of Committee II/2, UNCIO Documents Vol. 62, and Summary Records of 21st Meeting of Committee II/2, UNCIO Documents 848 (Eng.) II/2/46, Vol. 9, p. 177, and of the 10th Meeting of Committee II/2 , UNCIO Documents 507 (Eng.) II/2/22, Vol. 9, p. 69.

⁵ Letter dated 2 August 1946 requesting the inclusion in the Provisional Agenda for the Second Part of the First Session of the General Assembly of an item looking toward the carrying out of the provisions of Article 13, 1 (a) of the Charter, UN Document A/98.

⁶ UN Journal No. 39, Supplement No. 6, p. 50. The Sub–Committee was composed of the representatives of Belgium, Canada, China, Cuba, Czechoslovakia, Egypt, Norway, U.S.S.R., U.S.A., and United Kingdom, with Prof. Castberg (Norway) as Chairman, M. Kaeckenbeeck (Belgium) as Vice-Chairman and Mr. Hopkins (Canada) as Rapporteur.

⁷ A/C.6/114, Report of Sub–Committee 1. A/222, Report of the Sixth Committee.

⁸ A/222.

⁹ A/P.V./55, Verbatim Record of Fifty–fifth Plenary Meeting of the General Assembly; UN Journal No. 58, Supplement A. The Member States appointed were: Argentina, Australia, Brazil, China, Colombia, Egypt, France, India, Netherlands, Panama, Poland, Sweden, Union of Soviet Socialist Republics, United Kingdom, United States of America, Venezuela and Yugoslavia.

¹⁰ UN Document A/222, paragraph 7.

¹¹ Resolutions adopted by the General Assembly during the Second Part of its First Session, p. 187, Resolution 94 (I).

For comments, see Manley O. Hudson, “Encouragement of the Development of International Law by the United Nations,” this Journal, Vol. 41 (1947), p. 104; also Wellington Koo, Jr., “Some Aspects of the Work of the Legal Committee of the General Assembly during the Second Part of the First Session,” this Journal, Vol. 41 (1947), p. 638.

¹² UN Documents: (1) A/AC.10/5. Historical Survey of the Development of International Law and its Codification by International Conferences; (2) A/AC.10/6. Bibliography on the Codification of International Law; (3) A/AC.10/7, with Corrigenda 1 and 2. Memorandum on the Methods for Encouraging the Progressive Development of International Law and its Eventual Codification; (4) A/AC.10/8, with Corrigendum 1. The Codification of International Law in the Inter-American System; (5) A/AC. 10/22 and Addenda 1–4. Methods for Enlisting the Coöperation of other Bodies, national and international, concerned with International Law; (6) A/AC.10/25. Note on the Private Codification of Public International Law. With the exception of (2) and (5), these memoranda were reprinted in this Journal, Vol. 41 (1947), Supplement, pp. 29–147.

¹³ The representatives on the Committee were: Argentina, Enrique Ferrer Vieyra; Australia, W. A. Wynes; Brazil, Gilberto Amado; China, Shu–hsi Hsu; Colombia, Antonio Rocha, replaced by Jesus Maria Yepes; Egypt, Wabid Rafaat, replaced by Osman Ebeid; France, Henri Donnedieu de Vabres; India, Dalip Singh; Netherlands, J. G. de Beus; Panama, Roberto de la Guardia; Poland, Konstanty Grzybowski, replaced by Alexander Rudzinski and Alexander Bramson; Sweden, Erik Sjoborg; SovietUnion, Vladimir Koretsky; United Kingdom, J. L. Brierly; United States, Philip C. Jessup; Venezuela, Carlos Eduardo Stolk; Yugoslavia, Milan Bartos. The Bureau of the Committee was as follows: Sir Dalip Singh, Chairman; Professor Koretsky and Dr. Rocha, Viee-Chairmen; Professor Brierly, Rapporteur; the present writer, Secretary.

¹⁴ UN Documents A/AC.10/51. Report of the Committee. Reprinted in this Journal, Vol. 41 (1947), Supplement, p. 18. For comments on the Report, see the present writer, “International Law: First Phase of the Work to Fulfill the Charter,” American Bar Association Journal, Vol. 33 (1947), p. 765; see also “U.N. Committee on the Progressive Development of International Law and its Codification: Report of the U. S. Representative,” Department of State Bulletin, Vol. XVII, No. 420 (July 20, 1947), p. 121.

¹⁵ UN Document A/AC.10/7, reprinted in this Journal, Vol. 41 (1947), Supplement, p. 111. The various suggestions are more fully developed in an article by the present writer in The Yearbook of World Affairs 1948 (London), entitled “Methods for the Progressive Development of International Law and its Codification.ℍ

¹⁶ UN Document A/AC.10/11; also contained in Department of State Bulletin, Vol. XVI, No. 412 (May 25, 1947), p. 1026.

¹⁷ A/AC.10/16 and A/AC.10/SR.2.

¹⁸ A/AC.10/30 (statement of the Rapporteur (Professor Brierly) in amplification of his memorandum) and A/AC.10/SR.6. Professor Brierly concludes his statement by giving two examples. He says, “It does not follow from the fact that codification necessarily involves a certain measure of developing the law by legislation, that therefore legislation and codification are merely two names for the same process. The difference may be one of degree only, but it is important all the same and it may well be, and I submit that it is in this case, that in codification, which is primarily, though not exclusively, concerned with stating the existing law, one method is the most useful and that in legislation, where the question of what is the existing law is unimportant and the aim is to create law in the future as it ought to be, another method of working is to be preferred. For example, suppose the problem that states have before them is a treaty about tariff reduction. If such a treaty is made, it will necessarily develop the law, but none, I think will suggest that it codified the law. Until the treaty is made, there is no law on the subject. On the other hand, suppose the matter for consideration is a convention on territorial waters. Here then is already a great deal of law but there are uncertainties and gaps in it. I think we should rightly describe that convention as a codifying convention, even though it would have to contain a certain element of new law, of legislation.” A/AC.10/30, p. 3.

¹⁹ A/AC.10/SR.4, p. 4 and A/AC.10/SR.4/Add. 1.

²⁰ Thus, Dr. Amado (Brazil) recognized that the two tasks are distinct but complementary, and that there were organic relations between the two. A/AC.10/8E.4. He further said that the primary task of codification must not be confused with that of the development of the law, but neither must the two be separated entirely. A/AC.10/28. Dr. Hsu (China) said that progressive development and codification, though two distinct tasks, are closely related and have influence one upon the other and often overlap. A/AC.10/31. Professor Bartos (Yugoslavia), while recognizing the need for the distinction in theory between development and codification, felt that in practice it was hardly possible to make a separation between the two. A/AC.10/SE.5. The Delegation of Argentina in a memorandum (A/AC.10/10), while admitting that the problem of codification is to some extent included in the general question of the progressive development of international law, felt that for practical reasons it was advisable to draw a distinction.

²¹ Cited above, note 14, at p. 4, para. 7.

²² A/AC.10/7, cited above, note 15.

²³ A/222 (Eeport of the Sixth Committee).

²⁴ For instance, Sir Cecil Hurst, “A Plea for the Codification of International Law on New Lines,” Paper read before the Grotius Society, October 16, 1946; Report of the Committee on the Development and Formulation of International Law (presided over by Sir Arnold D. McNair), The International Law Association, April, 1947. See also the present writer, “The Development and Codification of International Law under the United Nations,” Paper read before the American Society of International Law, April 25, 1947, in Proceedings of the Society, 1947.

²⁵ UN Doc. A/AC.10/16.

²⁶ A/AC.10/16 and A/AC.10/SR.2.

²⁷ A/AC.10/32; A/AC.10/SR.9.

²⁸ A/AC.10/18; see also A/AC.10/23 and A/AC.10/SR.4.

²⁹ A/AC.10/SR.10: Dr. de Beus (Netherlands), Professor Donnedieu de Vabres (France), Dr. Vieyra (Argentina), Dr. Wynes (Australia) and Dr. Hsu (China) also thought that both methods might be useful, according to circumstances. Dr. Rudzinski (Poland), on the other hand, while appreciating the scientific value of restatements prepared by eminent lawyers, did not think that under the terms of the United Nations Charter such restatements could be given binding force, or even semi-official validity. Under the Charter, the General Assembly and other bodies of the Organization could do no more than recommend to Members to sign and ratify conventions. Professor Bartos (Yugoslavia) warned the Committee against any attempt to violate the Charter or to encourage its revision. He did not deny the value of scientific restatements but emphasized that Article 38 of the Statute of the International Court of Justice regarded teachings of publicists as no more than a subsidiary means for the determination of th rules of international law. Mr. Sjoborg (Sweden) also considered the convention method the only possible one. The advocates of the other method themselves admitted that the makers of scientific restatements would be obliged to fill in gaps in the law. This involved the creation of new rules, which was not possible without the explicit consent of States. For further views, see also A/AC.10/24, A/AC.10/SR.3.

³⁰ Report of the Committee, cited above, note 14.

³¹ Same, p. 10. The sub–paragraph to the effect that it might be recommended that “the General Assembly should adopt all or part of the report by resolution” was adopted by a majority of the Committee.

³² Report of the U. S. Representative, cited above, note 14, at p. 124.

³³ A/AC.10/14 (also published in Department of State Bulletin, Vol. XVI, No. 412 (May 25, 1947), p. 1029).

³⁴ A/AC.10/SR.7, p. 2; A/AC.10/SR.15, p. 14. The Committee added to this recommendation a note that the ILC should not in its view do anything which might detract from the valuable work already being done in the field of the development and codification of private international law by the Hague Conferences on Private International Law, and that when dealing with questions within that field the ILC might therefore consider the appropriateness of consultation with the Netherlands Government. A/AC. 10/51, p. 1.

³⁵ A/AC.10/14. Suggestion by the United States; A/AC.10/16, Memorandum by the Representative of the United Kingdom; A/AC.10/18, Suggestions by the Netherlands Representative; A/AC.10/20, Proposals by the Representative of Poland.

³⁶ A/AC.10/14, pp. 1–2.

³⁷ A/AC.10/16, p. 3.

³⁸ A/AC.10/20.

³⁹ A/AC.10/SR.4.

⁴⁰ Same.

⁴¹ A/AC.10/33, p. 2.

⁴² A/AC.10/51, p. 2.

⁴³ A/AC.10/SR.23, pp. 10–14.

⁴⁴ A/AC.10/SR.11, p . 6; SR.24, p . 6.

⁴⁵ A/AC.10/SR.11, p. 6; SR.23, p. 17; SR.24, pp. 1–4.

⁴⁶ Cited above, note 41.

⁴⁷ A/AC.10/51, p. 4. See also A/AC.10/SR.12, p. 7.

⁴⁸ A/AC.10/SR./12, p. 8; A/AC.10/SR.14, pp. 8–9; A/AC.10/SR.24, pp. 8–9; A/AC. 10/SR.26, pp. 13–14; A/AC.10/51, pp. 4 and 8.

⁴⁹ A/AC.10/SR.13, pp. 2–3 ; A/AC.10/SR.24, pp. 10–11.

⁵⁰ A/AC.10/SR.13, p. 5; A/AC.10/SR.24, p. 12; A/AC.10/51, pp. 5 and 9.

Professor Koretsky disagreed with the principle of consultation with private experts. He was opposed to any influence of outsiders whose work would be beyond the control of public opinion. The scientific bodies which are subject to organized public opinion might be consulted, but individuals should not be so. Professor Donnedieu de Vabres and Professor Brierly did not agree with this standpoint. Professor Donnedieu de Vabres felt that flexibility was required. The Commission would have scientific work to do, and its members should not be regarded purely as government representatives. They should have the widest access to all possible material, including consultation with private experts.

⁵¹ A/AC.10/SR.14, p. 9; SR.15, and SR.27.

⁵² The Netherlands, Colombian and Yugoslav representatives favored a request for government comments being made at the earlier stage. A/AC.10/SR.15 and SR.27.

⁵³ A/AC.10/SR.27, p. 8.

⁵⁴ A/AC.10/51 (Report of the Committee), p. 10. In this Journal, Vol. 41 (1947), Supplement, p. 24.

⁵⁵ A/AC.10/51, pp. 11–12, Para. 19 (b) of the Report gave rise to disagreement, as it raised the question of the coöperation of other bodies in the work of the Commission. See below.

⁵⁶ A/AC.10/SR.18.

⁵⁷ A/AC.10/SR.14, p. 5.

⁵⁸ Same, pp. 5–6.

⁵⁹ A/AC.10/51, p. 7.

⁶⁰ A/AC.10/SR.13, pp. 13–14. Professor Bartos (Yugoslavia) expressed similar view with even greater emphasis: p. 15. See also A/AC.10/SR.25.

⁶¹ A/AC.10/SR.25, p. 7.

⁶² A/AC.10/SR.13, p. 14.

⁶³ A/AC.10/SR.25, pp. 5–8; Same, A/AC.10/51, pp. 5-6.

⁶⁴ A/AC.10/51, p. 11.

⁶⁵ A/AC.10/SB.17, p. 5.

⁶⁶ A/AC.10/51, p. 12. It was agreed that the Secretary-General in drawing up this list should take into account the resolutions of the General Assembly and of the Economic and Social Council concerning relations with Franco Spain and that the organizations which collaborated with the Nazis and Fascists should be excluded both from consultation and from the list.

⁶⁷ The Members of the Second Sub-Committee were as follows: Australia, Brazil, China, Colombia, Dominican Eepublic, France, Greece, Netherlands, Panama, Poland, Sweden, U.S.S.R., United Kingdom, United States, Yugoslavia. The Bureau of the Second Sub-Committee was composed of: Mr. Liu Chieh (China) Chairman; Professor J. P. A. Frangois (Netherlands) Rapporteur.

⁶⁸ A/C.6/SR. 40, p. 5; A/C.6/193.

⁶⁹ A/504.

⁷⁰ A/P.V./123.

⁷¹ A/C.6/194.

⁷² A/C.6/SR.59.

⁷³ A/C.6/196; A/C.6/SB.57, pp. 4–5.

⁷⁴ See the Sub–Committee's report to the Sixth Committee, A/C.6/193, pp. 9 and 12.

⁷⁵ A/504, p. 5.

⁷⁶ A/C.6/193, p. 9.

⁷⁷ A/C.6/199, Nos. 4 and 8.

⁷⁸ Mr. W. E. Beckett (United Kingdom) in the Sub–Committee drew attention to the Resolution adopted by the Institute of International Law at its meeting at Lausanne on 22 August 1947 (circulated as a document of the Sixth Committee at the request of the United Kingdom Delegation, A/C.6/152), in which it was stated: “The Institute, while not excluding the possibility of international conventions and declarations on subjects, in respect to which they might be considered practicable, feels that for the time being the valuable contribution to the work of codification would be a national and international inquiry on scientific lines for the purpose of determining the precise state of international law at the present day. The result of such inquiry would serve as a basis both for an attempt to establish the doctrine and for an official attempt, by the methods considered most appropriate, to fill the gaps in international law and obviate its imperfections.” Attention was also drawn to the resolution adopted by the International Law Association at its 42nd Conference held at Prague in September, 1947 (circulated as a document of the Sixth Committee at the request of the Secretary-General of the International Law Association, A/C.6/154), in which “general approval” was given to the recommendations contained in the Report on the Development and Formulation of International Law, cited above, note 24.

⁷⁹ A/504, p. 7.

⁸⁰ A/331 (originally issued as A/AC.10/51 and cited above under this number).

⁸¹ A/C.6/193, pp. 14–15.

⁸² A/C.6/SR.58, pp. 5–7.

⁸³ Journal of the General Assembly No. 60, 21 November 1947, pp. 2-3 ; A/P.V.123, pp. 111-140.

⁸⁴ A/C.6/SR.37 and 38. See also report of the Sub–Committee, A/C.6/193, p. 2.

⁸⁵ A/C.6/193, p. 3.

⁸⁶ Reference was made to article 3 of the Statute of the International Court of Justice (UN Document A/331, p. 3, sub–paragraph (b)).

⁸⁷ A/C.6/193, p. 6 and p. 19, article 3, para. 2.

⁸⁸ A/C.6/SR.58, p. 3.

⁸⁹ A/504, p. 3.

⁹⁰ A/331, p. 3, Sub–paragraph (a).

⁹¹ A/331, p. 3, Sub–paragraph (c).

⁹² See report of the Sub–Committee of the Sixth Committee (A/C.6/193, pp. 4–6) and Article 11 of the ILC's Statute (A/504, p. 4).

⁹³ A/331, p. 2.

⁹⁴ See the Sub–Committee’s report to the Sixth Committee (A/C.6/193, pp. 17–18) and Article 1, paragraph 2 of the ILC's Statute (A/504, p. 3).

⁹⁵ A/C.6/193, p. 8.

⁹⁶ A/C.6/193, pp. 10–11.

⁹⁷ A/331, p. 5.

⁹⁸ A/331, pp. 10–11.

⁹⁹ A/C.6/193, p. 15.

¹⁰⁰ A/C.6/193, pp. 15–16.

¹⁰¹ A/C.6/193, p. 11.

¹⁰² A/504, p. 6.

¹⁰³ A/331, p. 8; A/C.6/193, pp. 12–13; A/504, p. 6.

¹⁰⁴ A/C.6/193, pp. 7–8, 11–12, 16–17; A/504, pp. 5, 7 and 8.

¹⁰⁵ A/C.6/69.

¹⁰⁶ Resolutions adopted by the General Assembly during the Second Part of its First Session, p. 188, Resolution 95 (I).

¹⁰⁷ A/AC.10/34.

¹⁰⁸ A/AC.10/SR.18, p. 14.

¹⁰⁹ A/AC.10/36.

¹¹⁰ A/AC.10/SR.18.

¹¹¹ A/AC.10/SR.15, pp. 14–18; A/AC.10/SR.19, pp. 5-6.

¹¹² A/AC.10/SR.18, p. 15; A/AC.10/SR.19, pp. 2–3.

¹¹³ A/332.

¹¹⁴ A/AC.10/21.

¹¹⁵ Memorandum of the U. S. Representative, A/AC.10/36, p. 5.

¹¹⁶ A/AC.10/SR.21 and A/332, p. 2.

¹¹⁷ A/C.6/180/Rev. 1.

¹¹⁸ A/505.

¹¹⁹ A/19 and A/19/Corr. 1; A/101; A/170; A/285 and A/28/285/Corr. 1.

¹²⁰ Resolutions adopted by the General Assembly during the Second Part of its First Session, p. 62, Resolution 38 (I).

¹²¹ A/AC.10/39; A/AC.lO/39/Add. 1; Add. 2; Add. 2/Corr. 1.

¹²² A/AC.10/SR.22; A/AC.10/SR.25; A/AC.10/53; A/333.

¹²³ A/C.6/181/Rev. 1.

¹²⁴ A/C.6/SR.59, pp. 1–4.

¹²⁵ A/C.6/196; SR.59, pp. 4–5.

¹²⁶ A/508.

¹²⁷ Journal of the Oeneral Assembly, Second Session, No. 60, p. 3; A/P.V./123, pp. 141–150.

¹²⁸ For an account of the discussion of this subject during the Second Part of the First Session see Raphael Lemkin, “Genocide as a Crime under International Law,” this Journal, Vol. 41 (1947), p. 145; also Wellington Koo, Jr., “Some Aspects of the Work of the Legal Committee of the General Assembly during the Second Part of the First Session,” cited above, note 11, at p. 640.

¹²⁹ Resolutions adopted by the General Assembly during the Second Part of its First Session, p. 188. Resolution 96 (I).

¹³⁰ Letter of the Secretary–General, 10 June 1947, UN Document A/AC.10/47; text of Draft Convention, A/AC.10/41, A/AC.10/42/Rev. 1 and Add. 1.

¹³¹ Letter of Chairman of the Committee to the Secretary–General, 17 June 1947, UN Document A/AC.10/55.

¹³² Resolution 77 (V), UN Document, E/573; A/362.

¹³³ Report of the Sixth Committee, A/510, as amended by Joint Amendment of Cuba, Egypt, and Panama (A/512), an Amendment of China (A/514): A/P.V./123, p. 161 and fol.

¹³⁴ A/AC.6/178.

¹³⁵ Report of the Sixth Committee, A/509. A/P.V./123, pp. 156-160.

¹³⁶ This was fully realized by those delegations who proposed in the Sixth Committee of the General Assembly during the second session that the members of the ILC should work on a part–time basis instead of on a full–time basis as originally recommended. Several representatives urged that since the ILC was to work on a part–time basis “it would have to be assisted by a Secretariat which would not only act as an administrative body but would constitute a center of scientific research.” UN Doc. A/C.6/193, p. 7. The report of the Second Sub–Committee states that “the Secretary–General should be asked to place at the disposal of the ILC such personnel and facilities as the Commission desired for discharging its functions and the Secretary–General thought practical for helping the ILC in this task. The Sub–Committee would not rule out the possibility that for this purpose, the Secretary–General might have to engage temporarily certain experts on matters to be dealt with by the ILC.” A/C.6/193, p. 7. See also Article 14 of the Statute of the ILC, A/504, p. 4.