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/221