¹ See below, p. 423.

² For a complete survey of its development, including the relevant resolutions and documents, see “The Question of Korea” in Yearbook of the United Nations (cited below as U.N. Yearbook), 1950, pp. 220–301; 1951, pp. 207–258.

³ A discussion of a somewhat analogous situation is in Leo Gross, “Voting in the Security Council: Abstention from Voting and Absence from Meetings”; and a polemic by McDougal and Gardner, “The Veto and the Charter: An Interpretation for Survival,” Yale Law Journal, Vol. 60 (1951), pp. 209–257 and 258–292. Cf. also Professor Gross’ remarks in Proceedings, Am. Soc. Int. Law, 1952, p. 112.

⁴ A representative comment is that by Demaree Bess, “The Prisoners Stole the Show in Korea,” Saturday Evening Post, Nov. 1, 1952, pp. 36 ff.

⁵ The agenda proposals of both sides (July 10, 1951) and the accepted agenda (July 26, 1951) are in “Korea No. 1 (1952),” Cmd. 8596, p. 16; also N. Y. Times, July 27, 1951, p. 1, col. 8; U.N. Yearbook, 1951, p. 242. See also Department of State Bulletin, Vol. 25 (1951), p. 231.

⁶ The armistice negotiations in 1951 are summarized in U.N. Yearbook, 1951, pp. 241–247. A survey up to the Oct. 8, 1952, recess, is in Special Eeport of the Unified Command on the United Nations Action in Korea (cited below as “Spec. UNC Rep.”), Oct. 18, 1952, U.N. Doc. A/2228, pp. 6–21. A personal account of strong human interest is (Adm.) Joy, “My Battle Inside the Korea Truce Tent,” Collier’s, Aug. 16, 23, and 31, 1952, pp. 36–40, 20–31, and 71–73. An interesting statistical analysis of the rate of progress of the negotiations is in Department of State Bulletin (cited below as “D.S.B.”), Vol. 25 (1951), p. 787.

⁷ This is a more frequently used alternative to the official designation “Unified Command,” based on the language of Security Council resolution S/1588, July 7, 1951, which recommended a “unified command under the United States.” Cf. U.N. Yearbook, 1950, p. 230.

⁸ Thirty-fifth Eeport of United Nations Command Operations in Korea, for the period Dec. 1–15, 1951, U.N. Doc. S/2514, in D.S.B., Vol. 26 (1952), p. 513. (Because these fortnightly reports can be most conveniently located in the Department of State Bulletin, the references below are to this source, with a brief identification of the number of the report and the U.N. document number.)

⁹ N. Y. Times, Dec. 12, 1951, p. 4, col. 5. Since this is not a direct quotation, it is to be assumed that they meant “released and repatriated.”

¹⁰ D.S.B., Vol. 26 (1952), p. 595 (36th Rep., Doc. S/2541).

¹¹ A comprehensive breakdown of the various groups of captives on both sides is in the “Statement of principles recommended by the UNC for the exchange of prisoners of war and civilians,” made in Pan Mun Jom on Jan. 2, 1952, D.S.B., Vol. 26 (1952), p. 105.

¹² Loc. cit., note 10 above.

¹³ Cmd. 8596, p. 11. The Communists claimed since December, 1951, that “any data they produce would be incomplete because of the absence of records due to destruction during the war.” Loc. cit., note 10 above.

¹⁴ Spec. UNC Rep., p. 15. Many of them deserted or were recaptured by the U.N. forces (cf. Joy, loc. cit., p. 71). The UNC does not seem to have pointed out that this practice violated recognized rules of the 1907 Hague Convention respecting the Laws and Customs of War on Land, which forbid a belligerent to compel the nationals of the hostile party to take part in war operations against their own country. Cf. Hackworth, Digest of International Law, Vol. 6, p. 260.

¹⁵ For complete text of the UNC proposal and arguments see D.S.B., Vol. 26 (1952), pp. 105–106, 111.

¹⁶ “Parole” is a pledge of the released prisoner of war that he will not again participate in the conflict. Cf. Hyde, International Law Chiefly as Interpreted and Applied by the United States (3 vols., 2nd ed., 1945 [cited below as “Hyde”]), Vol. 3, p. 1854; Hackworth, Digest, Vol. 6, p. 299; Enc. of Soc. Sciences, Vol. 12, p. 420.

¹⁷ The UNC did not officially approve of this practice and asked that the POW status be restored to these ROK personnel. However, Admiral Joy admits that “at the beginning … many of us … were concerned about the idea of voluntary repatriation,” but “felt very good reason for insisting on the principle of voluntary repatriation” after (the connotation seems to be “only after”) “the Communists … explained that large numbers [of EOK prisoners], as a matter of ‘free choice,’ ended up in their army. …” Loc. cit., p. 71.

¹⁸ N. Y. Times, Jan. 16, 1952, p. 1, col. 3.

¹⁹ The extent and intensity of the UNC’s “sykewar” before the start of the armistice negotiations is obvious from the first 24 operational reports, of which only Nos. 1, 2, 12, 19 do not mention it. More than 388 million leaflets in more than 154 varieties were distributed from the air, in addition to continuous loud-speaker broadcasts. Many of the leaflets were the so-called “surrender leaflets,” promising “humane treatment” or various more specific facilities (e.g., medical treatment to frostbitten soldiers) and serving as “safe-conduct passes.” Up to 41 per cent of the prisoners indicated that they were induced by the UNC exhortations to surrender—a figure which is supported by the outcome of the prisoner poll. For a critical comment on the unused potentialities of UNC psychological warfare see Galland, “More Psycho Than Logical,” Reporter, March 31, 1953, pp. 17–19.

²⁰ Traditional law of war considered it “unlawful to incite enemy’s troops to treason or desertion” (Westlake, International Law, 2nd ed., Vol. 2, p. 83, quoted in Hyde, “Vol. 3, p. 1838). But the U. S. War Department Field Manual, FM 27–10, Rules of Land Warfare (1940), No. 38, probably reflecting the actual practice of states, defines efforts to induce enemy’s soldiers to desertion, surrender, or rebellion, as legitimate. Hyde, op. cit., p. 1839.

²¹ Cf. Secretary Eden’s exposé before the House of Commons, May 7, 1952, Cmd. 8596, annex 18, pp. 24–25.

²² It does not seem unsafe to conjecture that Mr. Vyshinsky’s resolution to let the “Security Council bring to a successful conclusion the negotiations being held in Korea for the cessation of hostilities” (U.N. Doc. A/C.1/688, Jan. 3, 1952), was not only an answer to the previous setting up of the Collective Measures Committee (cf. Secretary Aeheson’s remarks, D.S.B., Vol. 26 (1952), pp. 46–47), but also a quick reaction to the proposal of “voluntary repatriation” and an attempt to get the issue under the control of Soviet veto before it really developed.

²³ Lindesay Parrot in N. Y. Times, Jan. 3, 1952, p. 1, col. 3.

²⁴ “Cartel,” a traditional institute of the law of war, is an agreement entered into by belligerents for the exchange of prisoners of war on the basis of strict reciprocity. Hyde, op. cit., Vol. 3, p. 1782 (referring to U. S. War Department, op. cit. (note 20 above), No. 243), p. 1857. Cf. also Hackworth, Digest, Vol. 6, pp. 297–298.

²⁵ D.S.B., Vol. 26 (1952), p. 598 (37th Rep., Doe. S/2550).

²⁶ See, e.g., the series of editorials in Arizona Daily Star (Tucson) in Nov. and Dec. 1952, referred to in a comment by Eep. Heller (D., N. Y.), Feb. 25, 1953, Cong. Bee, March 3, 1953, pp. A 1085–1087. An apparent reply is also a letter by Professor Edwin D. Dickinson of the University of Pennsylvania Law School, N. Y. Times, Dec. 7, 1952, Sec. E, p. 8.

²⁷ E.g., 37th Rep., Doc. S/2550, loc. cit.; 48th Rep., Doc. S/2789, D.S.B., Vol. 27 (1952), p. 795.

²⁸ The whole conduct of the negotiations raises an important policy question of choice or priority of arguments in cases where international law offers a safe basis. The exploration of this question is beyond the scope of the present article.

²⁹ D.S.B., Vol. 27 (1952), pp. 231–232 (44th Rep., Doc. S/2700). “The clear implication of the Communist proposal was that repatriation would be carried out on the basis of [new] lists [resulting from a prisoners’ poll].” Cmd. 8596, pp. 9–10.

³⁰ It reads: “All prisoners of war in the custody of each side at the time this Armistice Agreement becomes effective shall be released and repatriated as soon as possible. The release and repatriation of these prisoners of war shall be effected in conformity with the lists which have been exchanged and have been checked by the respective sides prior to signing this Armistice Agreement.” For the whole text of the Draft Armistice Agreement (Aug. 29, 1952), see Spec. UNC Rep., pp. 25–48; UNC reservations are at p. 24.

³¹ A neat summary is in the exchange of letters between the Senior Delegates, and the Supreme Commanders, Oct. 11–20, 1952, D.S.B., Vol. 27, esp. pp. 752–753, from where the following quotations are taken.

³² See below, p. 422.

³³ U.N. Doc. A/Resolution/18, ibid.

³⁴ Spec. UNC Rep., p. 24.

³⁵ Ibid., pp. 16–17.

³⁶ Ibid., p. 24.

³⁷ Secretary Acheson in Committee I, on Oct. 24, 1952, “The Problem of Peace in Korea,” Department of State Pub. 4771, p. 31.

³⁸ Eden, op. cit. (note 21 above); Acheson, op. cit. (note 37 above), p. 31.

³⁹ The text of the amnesty, declared by the Communists at a UNC proposal, is in Spec. UNC Sep., p. 16; Cmd. 8596, pp. 20–21. Detailed UNC screening announcement (over 500 words) is ibid., pp. 19–20. The text of the questionnaires is ibid., p. 21. The first five questions were identical for both North Koreans and Chinese; the last two questions appear more leading in the Chinese questionnaire. The 44th Rep. (Doc. S/2700) lists only the Chinese set (D.S.B., Vol. 27 (1952), p. 232).

⁴⁰ D.S.B., Vol. 28 (1953), p. 225 (54th Eep., Doc. S/2897); also D.S.B., Vol. 27 (1952), pp. 549–550.

⁴¹ U.N. Doc. A/C.1/725; D.S.B., Vol. 27 (1952), p. 680; see op. cit. (note 37 above), p. 44.

⁴² Acheson, ibid., p. 43.

⁴³ Acheson’s remarks were based on an extensive legal groundwork. Cf., among others, the Memorandum of Opinion of the Office of the Legal Adviser of the Department of State, “Legal Considerations Underlying the Position of the United Nations Command Regarding the Issue of Forced Repatriation of Prisoners of War,” October, 1952 (unpublished; cited below as “Memorandum of Opinion…). A very concise and accurate summary of the argumentation of the Department of State is in Professor Dickinson’s letter, cited in note 32 above. The Department’s documentation is also strongly reflected in Charmatz and Wit, “Repatriation of Prisoners of War and the 1949 Geneva Convention,” Yale Law Journal, Vol. 62 (1953), pp. 391–415, passim.

⁴⁴ Op. cit. (note 37 above), pp. 35–39. Cf. note 116 below.

⁴⁵ U.N. Doc. A/C.1/732; D.8.B., Vol. 27 (1952), p. 696.

⁴⁶ U.N. Docs. A/C.1/734, A/C.1/734/Bev.1. A survey of all major and minor plans submitted to the U.N. General Assembly in 1952 is in U.N. Bulletin, Vol. 13 (1952), pp. 431–434.

⁴⁷ Full text in D.S.B., Vol. 27 (1952), pp. 916–917. See provisions of prisoner agreement of June 8, 1953, D. S. B., Vol. 28 (1953), p. 866.

⁴⁸ Cf. the preamble and Proposals 2, 3, 13, 17.

⁴⁹ Cf. Chou En-lai’s statement that Red China rejected the U.N. proposal because it “adheres to and upholds … the fundamental principles of the Geneva Convention …” and the almost identical language of the North Korean rejection. N. Y. Times, Dec. 16, 1952, p. 1, col. 2; Dec. 18, p. 3, col. 6. It is not clear at this time whether the acceptance of the principle of non-forcible repatriation in May, 1953, represents the repudiation of all Communist legal arguments in the name of the 1949 Geneva Convention. In any case, it represents an important precedent which may smooth the way toward the political acceptance of the proper interpretation of this convention.

⁵⁰ For its full text see: Final Record of the Diplomatic Conference of Geneva of 1949 (3 vols., Berne, 1951 [cited below as “Final Record”]), Vol. 1, pp. 243–296; Geneva Conventions of August 12, 1949, for the Protection of War Victims, Department of State Publication 3938, pp. 84–161. The other conventions are: I, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; II, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; and IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War.

⁵¹ The initiative came in 1945 from the U. 8. Provost Marshal in the European Theater. Cf. Dillon loc. cit., below), p. 43. For the record of the three conferences see: (1) International Committee of the Red Cross, Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims, Geneva, April 14–26, 1947 (3 vols., Geneva, 1947); (2) Id., Revised and New Draft Conventions for the Protection of War Victims; texts approved and amended by the XVIIth International Red Cross Conference, Stockholm, August, 1948 (Geneva, 1948); (3) Final Record, esp. Vol. 2 A, 2 B.

The origin and a survey of the new conventions can be found in Pictet, “The New Geneva Conventions for the Protection of War Victims,” this Jouenal, Vol. 45 (1951), pp. 462–475, and “Preliminary Remarks” to Int. Red Cross Committee, The Geneva Conventions of August 12, 1949, pp. 1–23; a good general discussion is in Gutteridge, “The Geneva Conventions of 1949,” Brit. Yearbook of Int. Law, Vol. 26 (1949), pp. 294–326, and (Gen.) Dillon, “The Genesis of the 1949 Convention Relative to the Treatment of Prisoners of War,” Miami Law Quarterly, Vol. 5 (1951), pp. 40–63; a detailed technical discussion is given by Yingling and Ginnane, in “The Geneva Conventions of 1949,” this Journal, Vol. 46 (1952), pp. 393–427.

⁵² Final Record, Vol. 1, pp. 26–44; U. 8. Treaties (Trenwith), 1923–1937, Vol. 4, pp. 5229–5250. A critical evaluation of this convention in the light of the experiences of World War II is in Institute of World Polity (Georgetown University), Prisoners of War (1948), reviewed (M. W. Royse) in this Journal, Vol. 42 (1948), pp. 747–750.

⁵³ Malloy’s Treaties, Vol. 2, pp. 2049–2051.

⁵⁴ For historical background of treatment of war prisoners, cf. Hyde, Vol. 3, pp. 1844–1848; “Prisoners of War,” Enc. of Soc. Sciences, Vol. 12, pp. 419–421.

⁵⁵ The formal applicability of the Prisoners of War Convention to the Korean conflict is doubted by some internationalists. Cf. Professor Potter, this Journal, Vol. 46 (1952), p. 508: “Nothing would be gained by testing the applicability of the Hague Conventions or the [1949] Geneva Convention to the [Korean situation] … ; formally the Geneva Convention may not be applicable, but [its fundamental] principles … may be regarded as repeating established law.” Cf. also “Memorandum of Opinion …” (note 43 above) which refers to “difficulties attend[ing] an assessment of the applicability of the … Convention to the Korean conflict.”

⁵⁶ N. Y. Times, July 14, 1950, p. 1, col. 3. The North Koreans promised to “scrupulously” observe the Prisoner Convention, “in accordance with existing international law and standards regarding prisoners of war.”

⁵⁷ In June 1951, Gromyko identified the Korean belligerents as “North Korea and United Nations.” (Facts on File, Vol. 11 [1951], p. 202 H.) But on Feb. 6, 1952, the North Korean Senior Delegate, General Nam II, defined the warring parties as “North Korea and China,” and “the countries concerned of the United Nations” (id, Vol. 12 [1952], p. 37 D). South Korea is not a U.N. Member.

⁵⁸ N. Y. Times, July 17, 1952, p. 1, col. 1. The Geneva Conventions were signed by the delegate of Nationalist China.

⁵⁹ Cf. the documentation presented by the. U. S. representative (U. S./U. N. press release, Feb. 25, 1953, D.S.B., Vol. 28 (1953), p. 382) and the affirmative answer by the representative of the U.S.S.R. on sales of Soviet armaments to “our friend and ally,” China (U.N. Doc. U.S./A/C.1/2552, March 2, 1953, pp. 46, 49–50).

⁶⁰ Cf., e.g., Vyshinsky’s speeches in the Political Committee on Nov. 10, 1952 (U.S./A/C.1/2540), Nov. 24, 1952 (U.S./A/C.1/2543); and the speech mentioned in the preceding note.

⁶¹ This was a discussion in the Third Committee of the “Complaint of failure of the U.S.S.R. to repatriate or otherwise to account for prisoners of war detained in Soviet territory.” A summary is in U.N. Yearbook, 1950, p. 564.

⁶² U. N. Bulletin, Vol. 12 (1952), p. 156.

⁶³ Le Comité International de la Croix Rouge et le conflit en Corèe (1952), p. 13, quoted in “Memorandum of Opinion …”; also N. Y. Times, July 5, 1950, p. 2, col. 7. Cf. Taubenfeld,” International Armed Forces and the Rules of War,” this Jotjbnal, Vol. 45 (1951), pp. 671–679.

⁶⁴ U.8./U.N. press release, Aug. 14, 1950.

(a) Article 118, paragraph 1, states that:

“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”⁶⁹

(b) This is the prisoners’ right.⁷⁰ According to Article 7, “Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention. …”

(c) These provisions clearly mean that (i) “the Geneva Convention of 1949, and the previous Convention of 1929, demand the unconditional repatriation of all prisoners of war”;⁷¹ (ii) “no war prisoner is entitled to waive this right of repatriation regardless of his own preference”;⁷²

⁶⁵ Cmd. 8596, p. 26 (italics added).

⁶⁶ The 1929 Convention has not been cancelled by the coming into force of the 1949 document (for those states who have not ratified the latter), since it is not “inconsistent” with (i.e., contrary to) the newer document. Cf. Oppenheim (7th ed, [Lauterpacht] 1948), Vol. 1, p. 852 (cited below as “Oppenheim”).

⁶⁷ Art. 75 (see note 107 below).

⁶⁸ See notes 59, 60 above.

⁶⁹ Par. 2 reads: “In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph.” The rest of the article contains detailed stipulations concerning the costs of repatriation, which are not relevant to the problem at hand.

⁷⁰ Vyshinsky, Nov. 10, 1952, loc. cit. (note 60 above), pp. 10–11.

⁷¹ Ibid., p. 26.

⁷² Ibid., p. 11.

⁷³ Ibid., p. 26.

⁷⁴ Communist Commanders to Commander-in-Chief, UNC, Oct. 16, 1952, D.S.B., Vol. 27, p. 753. Cf. notes 61 above and 116 below.

⁷⁵ Note 70 above, loc. cit.

⁷⁶ “[The communist negotiators] virtually implied that they would observe such portions of the Geneva Convention as suited their purposes.” D.S.B., Vol. 26 (1952), p. 595 (36th Rep., Doc. S/2541).

⁷⁷ President Truman at West Point, May 21, 1952 (N. Y. Times, May 22, 1952, p. 1, col. 8.).

⁷⁸ Potter, loc. cit. (note 55 above), p. 509; cf. also note 23 above.

⁷⁹ Cf. note 119 below.

⁸⁰ Hudson, The Permanent Court of International Justice 1920–1944 (1943; cited below as “Hudson”), p. 640.

⁸¹ For three authoritative accounts of the rôle of interpretation in international law, with interesting differences in emphasis, see: Hudson, op. cit., pp. 640–661; Hyde, op. cit., Vol. 2, esp. pp. 1468–1502; Oppenheim, op. cit., Vol. 1, pp. 856–863.

⁸² Oppenheim, op. cit., Vol. 1, p. 857.

⁸³ Of the 59 original signatories of the 1949 Geneva Conventions, 45 states are “civil law” countries. Cf. Arminjon-Nolde-Wolff, Traité de droit comparé (Paris, 1950), Vol. 1, pp. 50–52; Schnitzer, Vergleichende Rechtslehre (Basel, 1945), pp. 127–267, passim; Gutteridge, Comparative Law (2d ed., 1949), Appendix.

⁸⁴ Cf. Hudson, op. cit., p. 661.

⁸⁵ A concise survey, written from the standpoint of common law, is Chapter VIII of Gutteridge (note 83 above).

⁸⁶ Cf. Westlake, International Law, Vol. 1, p. 293, quoted in Oppenheim, Vol. 1, p. 857, note 1.

⁸⁷ Oppenheim, Vol. 1, p. 858 (2) (ad i, ii, in the text above); p. 859 (4) (ad iii, iv); p. 862 (iv); p. 859 (3) (v); Hudson, pp. 645–646 (i); pp. 642 (quoting Judge Anzilotti), 646 (ii); pp. 647, 657 (iii); pp. 649–650, 655–656 (iv); pp. 643–644, 650–655 (v). The techniques of “statutory analogy” (implicit in item iii) and reference to travaux préparatoires (item v) are alien to common law—a fact which also influenced the Court in the beginning of its activities (Oppenheim, Vol. 1, pp. 862–863); subsequent practice, however, approached the general technique of construction of civil-law texts (Hudson, pp. 652–654). Cf., also, de lege ferenda, the Harvard Research Draft Convention on the Law of Treaties, Art. 19 (a), this Journal, Supp., Vol. 29 (1935), p. 661.

⁸⁸ “The Conference recommends that, in ease of a dispute relating to the interpretation or application of the present Conventions which cannot be settled by other means, the High Contracting Parties concerned endeavour to agree between themselves to refer such dispute to the International Court of Justice.” Final Record, Vol. 1, p. 361.

⁸⁹ A direct inclusion of the “optional clause” in the 1949 Geneva Conventions was defeated largely by Soviet opposition on grounds of doubtful legal validity. Final Record, Vol. 2 B, pp. 120, 370. Cf. Yingling and Ginnane, loc. cit. (note 51 above), p. 398.

⁹⁰ Cf. Vattel’s maxim: “It is not allowable to interpret what has no need of interpretation” (Vol. 2, § 263), which is in essence the Communist argument. Lauterpacht, in quoting it (Oppenheim, p. 858, note 1), states—very appropriately to the problem at hand—that “it is a rule which often begs the question.” Cf. also Hudson, pp. 641–642.

⁹¹ Cf. Hudson, International Tribunals (1944), p. 123.

⁹² Hyde, Vol. 2, p. 1469.

⁹³ Cf. Hudson, Permanent Court of International Justice, p. 643.

⁹⁴ The idea of a preamble was discarded only after a prolonged debate. Cf. Final Eecord, Vol. 1, p. 113; Vol. 2 A, pp. 322, 394. The 1929 Geneva Convention had a short formal preamble.

⁹⁵ Arts. 11 and 132 of the Prisoners of War Convention contain procedural rules applicable in cases of disputes, but their context indicates that they refer rather to those parts of the convention which regulate the treatment of prisoners while in captivity rather than their release.

⁹⁶ Model Agreement Concerning Direct Repatriation and Accommodation in Neutral Countries of Wounded and Sick Prisoners of War, Final Record, Vol. 1, pp. 282–284. The principles contained in this Model Agreement are made an integral part of the Prisoner Convention through the reference in Art. 110, par. 3: “… cases [of sick prisoners not covered by a special agreement between the parties to a conflict] shall be settled in accordance with the principles laid down in the Model Agreement. …”

⁹⁷ Convention I, Art. 45; Convention II, Art. 46. Both “conventions were drafted by Committee I. It must be assumed that the drafters in Committees II (Prisoners) and III (Civilians) left out a similar general clause because their aim was the tightest practical wording, with no “escape clauses."

⁹⁸ This in spite of the fact that they were opened for separate signature and ratification. Cf. the remark by Professor de la Pradelle, in reference to Art. 2 (general applicability of the conventions), that “it should not be forgotten that this article form[s] part of a whole which is the International Conventions for the protection of war victims.” Final Record, Vol. 2 B, p. 14.

⁹⁹ Final Record, Vol. 1, p. 362 (italics added).

Among the several delegations which went explicitly on record as supporting this sense of the conventions, was the U.S.S.R. Cf., e.g., a general reference to the “attitude of the Soviet Delegation … based upon the defense of humanitarian ideals” (Final Record, Vol. 2 B, p. 505), and the opposition—on this ground—to a proposal of New Zealand (ibid., p. 216), United States and others (ibid., pp. 399–400, with the implication that the U.S.S.R. is among those delegations which are “inclined to introduce into the Convention humanitarian provisions for the purpose of effectively safeguarding the protected persons,” as distinguished from the policy of the opposed states), and Norway (ibid., Vol. 2 A, p. 808).

¹⁰⁰ Arts. 4 and 2 respectively.

¹⁰¹ “Korea No. 1 (1953),” Cmd. No. 8793, p. 12. Even if this British argument is ex post facto, it does not diminish its validity.

¹⁰² Ibid.

¹⁰³ Cf. Final Record, Vol. 2 A. The record of the drafting of the Prisoners of War Convention takes 340 pages (pp. 235–575), more than all the other conventions together.

¹⁰⁴ Forty articles were added to the parts of the 1949 Convention which deal directly or indirectly with the treatment of prisoners in captivity (Arts. 12–108; 122–132); only one article was added to the original 10, dealing with the repatriation of prisoners (these articles were, however, elaborated in greater detail).

¹⁰⁵ Cf. the articles cited in note 51 above, the authors of which (Pietet, Dillon, Gutteridge, Yingling and Ginnane), all attended the 1949 Conference in official capacities.

¹⁰⁶ U.N. Bulletin, Vol. 13 (1952), p. 300.

¹⁰⁷ Art. 75 (1929) stipulated that “repatriation of prisoners shall be effected with the least possible delay after the conclusion of peace.” Art. 118 (1949) changed it to “[release and repatriation] without delay after the cessation of active hostilities.” (Italics added.)

¹⁰⁸ On asylum, cf., e.g., Oppenheim, Vol. 1, p. 618; Hackworth, Vol. 2, p. 622; Vyshinsky, The Law of the Soviet State (1948), pp. 633–636; on expatriation, see Oppenheim, pp. 591–592.

¹⁰⁹ Final Record, Vol. 2 A, p. 462. Austria proposed that “(1) Subject to the provisions of the following paragraph prisoners of war shall be repatriated to the country whose nationals they are at the time of repatriation. (2) Prisoners of war, however, shall be entitled to apply for transfer to any other country which is ready to accept them.” Ibid., p. 324.

¹¹⁰ Ibid., p. 337.

¹¹¹ Ibid., p. 462. This was a Soviet objection, seconded by the United States delegate.

¹¹² The possibility of release on parole or promise, as formulated in Art. 21 (“… insofar as it is allowed by the laws of the Power on which [the prisoners] depend”), is essentially a restatement of a customary rule, under which prisoners were usually not free to accept or refuse parole individually, but only through their own officers—co-prisoners. This practice, also accepted by the U. S. Armed Forces (U. S. War Department (note 20 above), Nos. 150–151), was the basis of a major argument of the Soviet delegate (Nov. 10, 1952 (note 60 above), pp. 20–21). This, however, overlooks the key sentence of Art. 21 (“No prisoner of war shall be compelled to accept liberty on parole or promise.”), which, as far as refusal goes, clearly dissociates the prisoner, as an individual, from his state.

¹¹³ Art. 109, last paragraph, reads: “No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article, may be repatriated against his will during hostilities.” Final Eecord, Vol. 2 A, p. 291.

¹¹⁴ Cf. Conference of Government Experts, Geneva, 1947, Preliminary Documents Submitted by the International Committee of the Red Cross, Vol. 2, pp. 187–188, quoted in “Memorandum of Opinion …” (cited, note 43 above).

¹¹⁵ This excludes the possibility of interpretation e contrario, which would argue that since the contingency in question (Art. 118) was known to the legislators, and still was not regulated by them analogously with similar contingencies (non-repatriation of eligible prisoners under Arts. 21 and 109), it is to be concluded that they did not intend to regulate it in the same manner (that means that analogy is not permissible). Although not so stated, this construction is implicit in the Soviet version.

¹¹⁶ This question was discussed in detail during the 1947 Conference of Government Experts, which considered it an accurate reflection of existing practice to leave it up to the detaining Power whether or not to repatriate a prisoner who had good reasons for not going home. It was therefore considered unnecessary to write it into the convention, thus creating an explicit “escape clause.” Cf. Conférence d’Experts Gouvernementaux pour l’Etude des Conventions protégeant les victimes de la guerre, Vol. III/2, p. 340.

The “existing practice” can be traced as far back as the American War of Independence (Art. VII of the Peace Treaty of 1783) and includes, since World War I, at least 26 instances, 17 of them from Soviet treaties, listed in the “Memorandum of Opinion. …” A typical provision from the Soviet group is Art. 2 of the Convention of March 28, 1921, Regarding Repatriation between R.S.F.S.R. and Turkey: “The mutual repatriation of prisoners shall be effected with their consent; forced repatriation shall in no way be admissible.” The most important examples of World War II practice were the British-French Accord in Syria and Lebanon (1941) and the Soviet surrender offers at Stalingrad (1943) and Budapest (1945). Reference to the last two items, which considerably embarrassed the Communist negotiators in Pan Mun Jom, was allegedly supplied to the UNC by the A. F. of L. (Facts on File, Vol. 12 (1952), pp. 198 C, 229 F.).

¹¹⁷ Cf. Lauterpacht, International Law and Human Rights (1950), p. 121; also the language of a recent Venezuelan proposal (U.N. Doc. A/C.6/L.197/Rev. 1).

¹¹⁸ Cf. note 70 above. Arguing the point that the captor state does not have the right to grant asylum but merely the absolute duty to repatriate, the Soviet delegate also emphasized that war prisoners were not political refugees. Cf. an analogous situation of many displaced persons, who were brought to Germany as forced laborers, and when they refused repatriation, were given the status of political refugees under the IRO Charter.

¹¹⁹ Resolution 427 (V), Dec. 14, 1950, U.N. Yearbook, 1950, pp. 568–569 (italics added). Although the rôle of the General Assembly as interpreter of the convention is nowhere defined, this construction is so much in line with the spirit of the convention that its quasi-authoritative character cannot be doubted.

¹²⁰ Par. 1: “In addition to the agreements expressly provided for in [the several articles] the High Contracting Parties may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provisions. No special agreement shall adversely affect the situation of prisoners of war, as defined by the present Convention, or restrict the rights which it confers upon them.” (Italics added.)

¹²¹ The derivative character of international rights of individuals is usually defined by their dependence for implementation on national legislation. Cf. Oppenheim, Vol. 1, p. 581.

¹²² For an extensively documented recent discussion of the subject-object theory in international law, see Manner, “The Object Theory of the Individual in International Law,” this Journal, Vol. 46 (1952), pp. 428–449.

¹²³ Oppenheim, Vol. 1, p. 672.

¹²⁴ Cf. Final Record, Vol. 2 B, pp. 17, 56, 110.

¹²⁵ Some delegates read into the provision of Art. 7 a duty of the prisoner not to renounce his rights, and objected to it probably on the grounds that only states should have duties under the convention. This can be inferred from two “soothing” remarks by the Soviet delegate who emphasized that only states were bound under the convention and also interpreted Art. 7 as signifying that “no legal issue can be raised by the fact that a protected person renounces the rights which the Convention accords him.” Ibid., pp. 18, 56. It may be doubted that the Soviet delegate had in mind the full implications of his interpretation, although he perfectly expressed the sense of the convention: The home state does not have any right to force the prisoner to use his right of repatriation and, therefore, cannot raise any legal issue when the prisoner renounces this right.

¹²⁶ In this sense, the convention is an illustration of the half-way mark which contemporary international law has reached in its development from the traditional system to a modern law of nations.

¹²⁷ See note 40 above. This proposal even squares in fact with Art. 7 as literally construed, since the explicit distinction of “release” and “repatriation” in the language of the convention suggests that the prisoner can be simply released, thus lose his status as prisoner, and therefore not be bound under Art. 7. It is, however, only an additional instance of the lack of legal skill with which the armistice negotiations were handled that the language (a contrario spirit) of the UNC proposal does not really make this point. In Alternative 1, it speaks about the prisoners to be permitted to regain their civilian status after they have stated their preference (i.e., making their decision still as prisoners and, in case of non-repatriation, waiving their right in violation of Art. 7); in Alternative 2, the language is somewhat more adequate, although ambiguous (“freeing from control” meaning total release).

¹²⁸ The implication of the Korean situation gives human rights a new dimension. Cf., e.g., Lauterpacht (note 117 above), where treaties governing the status of war prisoners are not mentioned among the human rights conventions, although the list is otherwise exhaustive. Cf. also the suggestion in a 1948 study that the regulation of the POW problem be entrusted to the U.N. Human Rights Commission (see this Journal, loc. cit. (note 52 above), p. 749).

¹²⁹ Cf. Northrop, “Contemporary Jurisprudence and International Law,” Yale Law Journal, Vol. 61 (1952), pp. 623–654, especially the latter half of the article.

¹³⁰ Patterson, “Constructive Conditions in Contracts,” Col. Law Review, Vol. 42 (1942), p. 954.

¹³¹ Cf. the insignificant rôle which international law played in the preparatory work for the United Nations Organization (reflected, e.g., in Department of State, Postwar Foreign Policy Preparation, Pub. 3580 [1950]) and Kennan’s accusations of “legalism” (esp. Ch. VI Of American Diplomacy 1900-1950 [1951]). Cf. also Sohn, “The Impact of the United Nations on International Law,” Proc., Am. Soc. Int. Law, 1952, p. 105.

¹³² Final Record, Vol. 2 A, p. 575.