Numbers appearing in square brackets (ex. ) within the transcript indicate the pagination in the original, hardcopy version of the oral history interview.
Opened January, 1976
Mr. Maktos prepared two short memorandums concerning his work with the Department of State during the Truman years. These memorandums (pp. 1-16) are followed by remarks which supplement the memorandums.
For my biography see Who's Who. Some of my functions in the Department of State were:
1945. Participated in the San Francisco Conference on International Organization and in its preparation in the Department of State.
1945-47. Chief of the Legal Office of the Division of International Affairs of the Department.
1947-51. Assistant Legal Adviser of the Department in charge of International Organization Affairs.
1951-62. Assistant Legal Adviser of the Department in charge of Near Eastern, South Asian and African Affairs.
Some of the issues that come to my mind from my functions during the administration of President Truman follow.
1. BYELORUSSIA and UKRAINE as members of the United Nations.
neither of them could be considered as a state. They had no ambassadors to any foreign country; their foreign relations were in the hands of the USSR; in brief, they were no more entitled to become members of the U.N. than any state of the United States. However, they became members, the only non-states to be admitted to the U.N. How was this accomplished?
This issue was considered all the way to President Roosevelt's desk where it was solved on policy grounds. Was it desirable to have the U.N. without the USSR which wanted these two additional members? His answer was in the negative.
to submit to the Committee at its session in the spring of 1948, and was appointed U.S. Delegate to the Committee.
At the 1945 San Francisco Conference the so-called Big-Five powers -- China, France, USSR, United Kingdom and U.S. -- had a gentleman's agreement to refrain, as much as possible, from seeking to head U.N. organs. This was to avoid possible claims of dominance by them of the U.N. Aware of this understanding, I did not accept nomination for the Committee's chairmanship. When, however, the USSR delegate was nominated for this office, he accepted.
During the recess prior to the voting I remember my calling the Department of State from New York where we were meeting. After referring to the above developments, I pointed out the increased difficulty of implementing our position regarding certain provisions we wanted incorporated in the convention, with the USSR delegate as a presiding officer. I asked and received authorization to be renominated and to accept the nomination. I did so and was elected chairman of the Committee.
With a few changes, my draft was approved. In 1948,
the draft convention prepared by the Committee was considered in the Legal Committee (Sixth Committee) of the U.N. General Assembly later in 1948. It was unanimously approved by Assembly Resolution 260A (III), of December 9, 1948, under the title "Convention on the Prevention and Punishment of the Crime of Genocide."
President Truman transmitted the Convention to the Senate on July 16, 1949, for its advice and consent to ratification, and said, in part:
"By the leading part the United States has taken in the United Nations in producing an effective international legal instrument outlining the world-shocking crime of genocide, we have established before the world our firm and clear policy toward that crime." Senate Ex. O, 81st Congress, 1st session, pp. 2-6.
The Senate has not acted on the convention and it could not, therefore, be ratified by the United States. Pursuant to Article VIII of the Convention, it came into force for certain states on January 12, 1951.
This pact is a milestone in international relations. For the first time in that field, a State is made, by
treaty, criminally responsible for its treatment of its own nationals.
On the history of the drafting of this convention, see the files of the Department of State for my draft and the background reasons therefor. For the draft prepared by the aforesaid Committee on Genocide and the Committee's discussions, see U.N. document "Report of the Committee and Draft Convention Drawn by the Committee," E/79A, May 24, 1948. For the Legal Committee (Sixth Committee) discussion of the draft, see U.N. Official Records of the Third Session of the General Assembly in 1948. For the text of the Convention, see Assembly Resolution 260A(III), December 9, 1948; 78 U.N. Treaty Series 277.
3. INTERNATIONAL CRIMINAL COURT
which jurisdiction will be conferred upon that organ by international conventions." The Commission's study led it to report to the U.N. General Assembly that the creation of such a court was both desirable and possible (U.N. Document A/1316).
On December 12, 1950, the Assembly adopted Resolution 489 (V) which set up a committee of seventeen member states to meet in Geneva on August 1, 1951 "for the purpose of preparing one or more preliminary draft conventions and proposals relating to the establishment and the statute of an international criminal court."
As part of my functions as Assistant Legal Adviser for International Organization Affairs, I drafted such a statute in Preparation for the Geneva meeting. Having been approved by the Department, it served as the basis of the U.S. position at the meetings of the U.N. Committee on International Criminal Jurisdiction which concluded its work on August 31, 1951. The late George Maurice Morris, U.S. Delegate to the Committee, having been elected Chairman thereof, I became the U.S. spokesman at the daily meetings of the Committee.
For the text of my draft statute, see the files of the Department of State. For the draft statute for an International Criminal Court, submitted to the General Assembly by the Committee, see Annex I of the Committee's report, U.N. Document A/AC48/4. For discussions by the Committee of the various provisions of the draft statute, see the U.N. official records of the Committee, U.N. Documents A/AC48/SR.
At its seventh session in 1952, the Assembly considered again this issue. See U.S. participation in the U.N., Report by the President to Congress for the year 1951, page 255. For an account of the 1952 proceedings and of subsequent ones by the United Nations see 1 Whiteman, Digest of International Law, page 205.
4. THE INTERNATIONAL LAW COMMISSION
The genesis of the Commission began with a 1946 memorandum which I prepared in connection with my functions as Chief of the Legal Office in charge of International Organization Affairs of the Department of State. I called attention in it to the following provisions in Article 13, paragraph 1 of the U.N. Charter
1. The General Assembly shall initiate studies and make recommendations
for the purpose of:
I pointed out that these provisions would remain a dead letter absent any implementation thereof. I proposed that the U.S. initiate steps at the U.N. with a view to discharging the Assembly's responsibility under Article 13, paragraph 1 (a). The Department approved my memorandum and, on the initiative of the U.S., the question of implementation was placed on the agenda of the Second Part of the First Session of the General Assembly. (U.N. Document A/98, August 2, 1946.) A joint proposal by the U.S. and China (U.N. Document A/C.6/54, November 6, 1946), called for the appointment
of a committee to consider this matter. Pursuant to a Report of the U.N. Sixth (Legal) Committee (U.N. Document A/222, December 6, 1946), the General Assembly, on January 31, 1947, adopted Resolution 94 (I), establishing the Committee on the Progressive Development of International Law and its Codification -- hereinafter the Committee. (U.N. Document A/64/Add 1, January 31, 1947.) The Resolution directed the Committee to consider "The methods by which the General Assembly should encourage the progressive development of international law and its eventual codification."
The Committee met from May 12, 1947, to June 17, 1947. (U.N. Document A/AC/SR 1-30.) Philip C. Jessup, later Judge of the International Court of Justice, was the U.S. Delegate and I was his adviser. As part of my legal functions, I prepared in the Department a draft statute for what later became the International Law Commission. My draft, having been approved by the Department, formed the basis of the U.S. position during the work of the Committee. It recommended the establishment of an international law commission, and, although it did not prepare a draft statute, it set forth provisions
designed to serve as the basis for such a statute.
For my aforesaid 1946 memo -- random and draft statute see files of the Department of State.
The U.S. took the initiative at the Second Session of the General Assembly in 1947 by proposing a resolution for the establishment of an International Law Commission. (U.N. Document A/C.6/137, September 1947.) It eras to function largely along the recommendations of the aforesaid Committee. The subject was discussed by the Sixth (Legal) Committee of the Assembly. A draft statute of the Commission, prepared by a subcommittee was adopted by the Sixth Committee on November 20, 1947. (U.N. Document A/C.6/58.58.) By its Resolution 174 (II) of November 21, 1947, the General Assembly established the International Law Commission and approved its statute. (U.N. Document A/519, pages 105 ff.) The first annual session of the Commission opened on April 12, 1949.
5. DEFINITION OF AGGRESSION
its Sixth (Legal) Committee on November 13, 1951. Again, in the course of my legal duties in the Department of State, I had to, and did, prepare a paper setting forth the position that the U.S. should take on this matter at the sixth session of the Assembly. (See files of the Department.) This paper eras approved by the Department and became the official U.S. position.
I stated that we should oppose any definition of aggression on the ground that such a definition would be neither desirable nor useful as a guide for the U.N. Such a definition could not include all conceivable acts of aggression. It might even be dangerous, by restricting the necessary freedom of action of U.N. organs in specific cases. As U.S. representative on the Sixth Committee, on January 10, 1952, I delivered a lengthy statement opposing the adoption of any definition of aggression. Some of my reasons are quoted in Julius Stone, Aggression and World Order, 1958; pages 113, 132. (See also files of the Department and U.N. records of the Assembly's sixth session.)
During the discussion of this matter in the Sixth Committee, it was stated, by the USSR delegate, that my
opposition was not in accord with the view of the U.S. at the 1945 San Francisco Conference. I replied that I was cognizant of that view but that the then picture of the Organization had changed considerably. Anticipated cooperation of member states was not evident in the frequent use of the veto power in the U.N. and that foreign policy may have to change in the light of changed circumstances. We do not wear a heavy overcoat in the summer, I pointed out, merely because we may do so in winter.
With respect to a Soviet proposal that a state that uses armed attack first should be considered an aggressor, I recall my mentioning the Pearl Harbor attack by Japan. I raised the question whether the U.S., if it had had prior notice of an impending Japanese attack there, would have been an aggressor if it had first destroyed the Japanese forces destined to make the attack. (U.N. Document A/2211, paragraphs 392-93.)
By its Resolution 599 (VI), of January 31, 1952, the General Assembly, adopted the proposal of the Sixth (Legal) Committee on January 21, 1952, that concluded that it was "possible and desirable...to define
aggression." (U.N. Document 2211.)
I recall that the Sixth Committee's resolution was carried by, I believe, a vote of 25 to 26. One of the delegates, who voted for the resolution had promised me privately that he would vote against it. Had he kept his word the chances are that the many fruitless efforts in the U.N. to effectuate a definition would have been avoided.
By its Resolution 688 (VII), of December 20, 1972, the Assembly established a Committee which was requested to submit to the ninth session of the Assembly, in 1954, "draft definitions of aggression or draft statements on the notion of aggression." As U.S. Delegate to this Committee I took the same position as before. The Committee met on August 24, 1953. It decided not to put to a vote the several proposed definitions but to transmit them to the General Assembly and to Member States for comments. (Official Records of the General Assembly, Ninth Session, Supplement No. 11. See also those records for subsequent U.N. consideration of the question, as well as Julius Stone, op.cit.).
Department of State Method of Dealing With Legal Problems Relating to the United Nations
After I finished the preceding memorandum of May 28, 1973 it occurred to me that it might be useful to make some observations regarding the above subject. They relate to the time, during the administration of President Truman, when I was in charge of U.N. affairs in the Department of State.
At each of the annual sessions of the U.N. General Assembly, after adoption of its agenda, legal topics thereon would generally be referred to its Sixth (Legal) Committee for consideration or to a special committee, again generally proposed to the Assembly by the Sixth Committee. Action by such special committee would again be referred by the Assembly to its Sixth Committee when the topic was on the Assembly's agenda. The Sixth Committee's action would be referred to the Assembly for final decision.
On page 1 of the attached memorandum I set forth the positions I held in regard to legal questions relating to International Organization Affairs including problems of the U.N.
Before I retired from the Department in 1962, a person occupying those positions had the responsibility of preparing a so-called position paper . It set forth the attitude to be taken by the U.S. at the aforesaid organs of the U.N. regarding legal topics to be considered by them.
Each position paper would deal with a single item and was divided into three parts. The first would describe the nature of the problem or problems involved in the topic. The second part would make specific recommendations as to the position to be taken by the U.S. at the U.N. And the last part would set forth the reasons for the recommended action.
The position paper would then be submitted to the Legal Adviser of the Department and other appropriate officials thereof. If approved by them, it would become the official position of the U.S. It would serve as the guideline in
the U.N. discussions. If they raised points not specifically covered by the position paper, the ad hoc U.S. representative had, of course, to exercise his judgment in dealing with such points.
During the annual sessions of the U.N. General Assembly, the U.S. Delegation to the Assembly would hold daily meetings. Members of the Delegation would then present to the Delegation a report on their activities at their respective U.N. organs and would raise any issues on which they wanted instructions. After discussion by the Delegation, the presiding officer, usually the U.S. Ambassador to the U.N. or, at times, the Secretary of State, would summarize what he considered to be the sense of the meeting on any particular issue. If necessary, the issue would be referred to the Department for decision.
Oral History Interview with
May 28, 1973
by Richard D. McKinzie
MAKTOS: I want to give a brief history of how I got into the functions that I described in my memorandum of May 28, 1973. After getting my AB degree at Harvard in 1923, and my degree in the law school in 1926, I went to Oxford for two years until 1928, and in 1929 I got my doctorate of juridical science SJD at Harvard Law School. Upon graduation in 1929, I entered the legal office of the State Department and remained with it until 1962 when I retired.
This is not relevant to my functions except as a personal reaction of a man born abroad, in Greece. For all those years I must admit I was treated with the utmost consideration and kindness and was given every chance, even though I'm not a native. But to the credit of our
country there wasn't a single day when I regretted being in the Department or being associated with my colleagues. They treated me with the fairness and justice which I found throughout my life after coming here from Greece.
As you know, the United Nations was not formed until 1945. Prior to that, I had some other functions in the legal office. For instance, I had to do with international claims, and, in connection with that, I was sent to Turkey to take care of our claims against Turkey growing out of World War I. I also dealt with claims against other countries. Additional assignments included problems of a legal nature in South America, immigration and nationality.
After Pearl Harbor, there was created an inter-departmental visa review committee. Its functions were to see whether immigration laws were complied with and also whether national security allowed the entry or exit of aliens from this country. I was chairman of the committee, as representative of the State Department. The other members represented Justice,
Immigration, Naval Intelligence, Military Intelligence, and FBI.
In preparation for the San Francisco Conference I was assigned certain duties, and one of them, of course, was the organization of the United Nations. After the formation of the United Nations (and now we come really to the specific functions I had), there was created in the State Department the International Organizations Affairs Division, and I took charge of the legal section of that unit. As such, then, I performed the functions described in the memorandum of May 28, 1973.
Later, under Charles Fahy, then Legal Adviser of the State Department, all lawyers in various divisions in the Department of State were made part of the Office of the Legal Adviser, and, at that time, I became Assistant Legal Adviser in charge of International Organizations.
Parenthetically, on television in connection with the Watergate case, I see one of the lawyers, Bernard Fensterwald, who was in my section there.
There were other lawyers. One of them is Carl Marcy. I think he is now on the Hill as chief of the staff of the Senate Foreign Relations Committee.
As Assistant Legal Adviser in charge of International Organizations, I had to deal with those matters that I described in the memorandum of May 28, 1973.
MCKINZIE: You are knowledgeable about Germany's raids on art treasures in Europe at the end of the war. I wonder if you might say something about your work in connection with that?
MAKTOS: Yes, indeed. Immediately after Pearl Harbor, there was created in the State Department a committee to deal with problems that would require action either during the war or after the anticipated victory over our enemies. This committee consisted of political advisers and economic advisers of the Department.
Having been assigned from the Legal Adviser's Office to that committee, I naturally was dealing with legal problems rather than economic or political. And
one of the functions of that committee was about stolen art treasures. What would happen after the end of the war? We decided that they should be restored to their respective owners and that Germany, of course, should be made to return them.
Also, in connection with what reparations should be paid by Germany, I had to study the Versailles Treaty and its provisions, so as to have a guideline as to the reasons why some of those provisions were never effectuated. I remember that I said, "Well, a pie is just that much, and you cannot increase it by dividing it. Germany has just that much economic capacity and no matter how we want to divide it among the victors, we cannot increase such capacity." And from the legal provisions of the Versailles Treaty I found why the Young plan, and the Dawes plan did not succeed after World War I. Although this was not a legal problem, from the provisions that I examined in the Versailles Treaty and from their effect later on, my advice was that we should try not to overestimate the economic capacity. Our proposals for the future
peace treaty should be along those lines. We should take into account how much Germany was really able to pay.
One of the other problems developed to be a very serious one, namely access to Berlin. I had proposed that there should be a written agreement between the victors giving to all of them a right of passage to Berlin from the Soviet sector.
MCKINZIE: But you proposed this in that same committee?
MAKTOS: No, this was not in the committee. It was later. I had in mind specifically a real property problem. If I have to go through your property to get to mine, I have to get an easement from you allowing me to go through your property. I had the same problem in mind; namely, that the Soviet Union should give, so to speak, an easement to the other Allies -- France, England, ourselves -- to go through its sector. This easement should be in writing, and it should make it crystal clear that they would have a right to pass through.
Going back now to the creation of the United Nations and the establishment in the Department of a special U.N. division, I remember how, at first, I did not want to become a member of such a division, because I thought it would be temporary and what would happen to my position should the U.N. or the division prove to be ephemeral. I'd rather be in the Legal Adviser's Office, at that time called the Solicitor's Office. It shows you that some things, that one may fear, never happen.
Well, I remained in that division. As I said, later, Charles Fahy, as Legal Adviser, incorporated in his office my position as well as other legal ones in the Department. It was in connection with my position in the Legal Adviser's Office that I prepared those so-called "position papers," mentioned in one of my memorandums of May 28, 1973.
MCKINZIE: Could you speak about the substantive issues with which you had to deal at the San Francisco Conference? Was most of your work completed by the time that you reached San Francisco, and if so, then what was there
left to do?
MAKTOS: I was adviser in connection with the problem as to whether the present International Court of Justice would be the successor to the Permanent Court of International Justice, under the League of Nations -- in other words, the problem of the establishment of the present International Court of Justice.
Harold Stassen was the U.S. representative on the committee that was considering the problems of the court. I was his legal adviser and was sitting by him when the question arose! "Would the contemplated court, the International Court of Justice, be an entirely new court or would it really be a successor to the old one?" And I still recall pointing out to him, orally, for his action before that committee that the Permanent Court of International Justice was formed under the League of Nations to which certain states, including Germany and Japan -- the defeated nations in the war -- were parties. Since those states would not be parties to
the United Nations Charter, obviously the new court would have to be really a new court between the states that agreed to the U. N. Charter, because, as you know, a treaty cannot be amended except with the consent of all the parties to the treaty. And, as I say again, Japan and Germany, of course, were not represented at the San Francisco Conference. It was, therefore, an important issue: How could we overcome this difficulty that the defeated nations were not at San Francisco? And I remember giving an advice somewhat like this: "Well, this would be a court between the states that agree here, in San Francisco, to form a court." What happened to the old court was really more of an academic question, because many states were represented in San Francisco, and, if they agreed to form a court between themselves, they had a perfect right to do so. And, therefore, the fact that Japan and Germany or any other state would not be a member of this new court would not prevent the states at the Conference from agreeing to form a new court.
A few sidelights in connection with that Conference may give a little local color. Alger Hiss, who later was convicted of a crime, had been in an automobile that had driven him to the Opera House where the meetings of our delegation to the United Nations were taking place. He got out (we knew each other from the State Department), and I got into the car. I remember the woman driver, a volunteer, saying that she had never met a more polite person than the gentleman (she didn't know his name) that had just gotten out of the car.
Another vignette at that time, as you remember, there was gas rationing and it was difficult to find taxis. San Francisco women formed a volunteer association to drive delegates. So, the women were most wonderful and helpful.
MCKINZIF: Did you personally attend the plenary sessions of the U.N.?
MAKTOS: Yes, I did. And of course, as you remember, President Truman came there.
Some other personal recollections are of Secretary [George C.] Marshall. At a U.N. meeting in Paris, the U.S. delegation was headed by General Marshall. The first time we met at the Avenue Kleber building where our delegation had its offices, he saw me walking lame, he motioned to me and would not enter the elevator until I got in. This was just a small indication of the wonderful character of Americans. Now being 70 years old, I have nothing but similar fine recollections of my fellow Americans and I can't recall one that was not a credit to our wonderful country.
MCKINZIE: I wonder if I might ask you to amplify a bit upon the legal problems of Byelorussia and the Ukraine in the United Nations? I notice in your memorandum that you point out that neither could be considered a state, and therefore were not entitled to representation in an international organization and that this had to be passed up to President Roosevelt.
MCKINZIE: Was this widely discussed in the State Department, as you recall? How strong were the recommendations to the President?
MAKTOS: I was discussing in that memo the problem of membership in the organization, preparatory of course, to the San Francisco Conference. I don't know who raised the problem that the two states, Ukraine and Byelorussia, should become members. Since President Roosevelt was the one who made the final decision, my guess is that the proposal that those two become members must have been on the initiative of the Soviet Union.
I do not recall having seen a note from the Soviet embassy to the State Department proposing that Byelorussia and Ukraine become members. If I did, I don't recall definitely that the question that came to me for consideration was: Should Ukraine and Byelorussia become members of the United Nations? The reasons stated in my memo of May 28, 1973 are given only in one or two sentences; but my original
memo must have gone into this question considerably in order to determine whether those two states had the attributes of international states. Every other member of the organization was to be an international state.
I recall writing that they were not entitled to be members. I did not write in my memo of May 28, 1973 that at the time these working level memos were prepared there was an Assistant Secretary of State in charge of this work, [Leo] Pasvolsky. Then there was also a committee consisting, I think, of Senator [Arthur H.] Vandenberg, Senator [Tom] Connally, and of course the Secretary of State, who would pass on important questions of policy. So, the probability is that this problem came up to that committee, and they probably submitted it -- I don't know whether with any recommendations for or against -- to President Roosevelt in view of its importance. But I do recall definitely that the decision that they (Ukraine and Byelorussia) should be members came from the White House, on the basis that the Soviet Union would not
become a member unless it had these two additional votes.
MCKINZIE: Did this create any particular problems from a legal standpoint in the State Department, after the Charter was adopted?
MAKTOS: Once it was decided and they became members, they were treated like every other state, which again indicates how some ghosts never materialize in life, and why sometimes legal considerations may have to give way to policy matters.
MCKINZIE: I note that in your memorandum of May 28, you write about the genocide issue before the United Nations, and you seem to write with some feeling about this. Was this a subject of particular personal interest to you?
MAKTOS: I must admit that it was. I tried to be objective, as objective as I could be, but there is no doubt that the killing of millions of human beings had really moved me. On the other hand, I could not
but present the issues to the Department in an objective manner, for instance as to what legal provisions should be incorporated in the treaty that was to be drafted. And I prepared a draft, not with any personal feelings, but with a viewpoint as to what provisions would be effective.
For instance, I thought of including a ban against extermination of political ideologists. I felt that that would be inadvisable because some countries might not accede to the treaty to be prepared, because of political difficulties. They may think that they may be accused of being genocidal should they take certain steps in relation to parties not forming part of an existing government. Therefore, I excluded that from enumeration of the kinds of classes -- racial, ethnic, religious -- that should be treated in the convention. But my appointment to the committee to draft the genocide convention, was not because of my personal views, but because of my functions. I did not include in the memo of May 28, how we spent a good deal of time, after I got
authorization to be renominated as chairman of the committee, wrangling about whether or not it was permissible to be renominated having once rejected nomination. Of course, there was no law, or regula