Section V Use of the Board The two Governments shall encourage their nationals to use in the first instance the Board to settle claims resulting from damage to or loss of fishing gear and vessels. The Governments shall give information about the Board to interested persons. Section VI In all proceedings under this Annex the Board shall apply: 1. international conventions, whether general or particular, establishing rules expressly recognized by the two Governments, including bilateral and multilateral agreements between the two Governments dealing with fisheries and maritime matters generally; 2. international custom, as evidence of a general practice accepted as law; 3. the general principles of law recognized by nations; 4. judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Section VII 1. Nothing in this Annex shall preempt, prejudice, or in any other way affect judicial proceedings, or in any way prejudice or affect the substantive or procedural rights of any person, whether or not such person appears before or participates in the proceedings of the Board. 2. No claim shall be brought the substance of which has been or is being adjudicated or arbitrated between the parties. The Board may refuse to consider a claim on the grounds that it should be joined to an existing judicial proceeding involving substantially the same issues and in which the law applicable to such judicial proceeding appears to permit such joinder. 3. The Board shall immediately suspend conciliation proceedings regarding a claim in respect to which judicial proceedings are instituted, unless the court before which the proceedings are pending determines, in the exercise of its lawful authority, that the parties may continue to proceed before the Board. 4. The Board shall immediately terminate conciliation proceedings regarding a claim in respect to which there is a binding agreement to arbitrate. Section VIII Each Government shall pay all expenses, including compensation, of the members it appoints to the Board and of any technical advisers it appoints. The two Governments will share equally all the administrative and operational costs of the Board. Such costs do not include expenses related to the presentation or production of evidence or the appearance of witnesses. Section IX At the request of either Government, representatives of the two Governments shall meet to review the operation of this Annex and to consider proposals for its revision. This Annex may be amended through an exchange of notes between the two Governments. Section X At any time either Government may give written notice to the other Government of its intention to denounce this Annex, in which case the Annex shall terminate sixty days from the date of the notification, provided that the effect of the Annex shall in any event continue until the conclusion of conciliation proceedings and arbitrations instituted prior to its termination, unless otherwise agreed by the two Governments. The 1976 agreement and annexes were transmitted to Congress on Sept. 16, 1976, pursuant to the Fishery Conservation and Management Act of 1976 (P.L. 94-265; 16 U.S.C. 1801). See H. Doc. 94-613. Southern Africa Mediation Secretary of State Kissinger, at the request of African leaders. undertook a series of negotiations in September 1976 in a diplomatic effort to mediate the conflicts taking place in southern Africa. In a news conference in Washington on September 11, he described the objectives of his mission as follows: First, the American diplomatic effort is being undertaken with the support and with the encouragement of all of the parties involved. Second, there is no "American plan." The solutions have to be found in Africa and have to be found by negotiations among the parties. Third, the United States has agreed to offer its good offices because no other country was available to perform this role and because the risks to world peace of an escalating violence in southern Africa were very severe. Fourth, war had already started in southern Africa. The danger of its expansion, the danger of foreign intervention, the impact on the national security of the United States and on world peace dictated that we make an effort to find a peaceful solution. The worst that can happen if this effort fails is what was certain to happen if the effort is not made. We are dealing with three problems: Namibia, Rhodesia, and South Africa-each having different aspects and each having different timetables. On this trip we will deal primarily with the issues of Namibia and Rhodesia. It is not a negotiation that will lend itself to dramatic final conclusions, because there are, in the case of Rhodesia, four states, four liberation movements, the Rhodesian settlers, and South Africa involved; in the case of Namibia, several African states, again South Africa, the national movement recognized by the Organization of African Unity, namely, SWAPO [South West Africa People's Organization], and several internal groups assembled in a constitutional conference. We are pursuing this policy, which will not support violence and which stands opposed to foreign intervention, in the interest of world peace, in the national interest of the United States, and above all for the interests of the peoples of Africa. The purpose is to enable a transition to independence in Namibia and to majority rule and protection of minority rights in Rhodesia under conditions that will enable all the communities to live together and in which the bloodshed is put to an end. The conditions in South Africa are more complicated and require a much longer timespan for their evolution. Dept. of State Bulletin, Vol. LXXV, No. 1945, Oct. 4, 1976, p. 409. In a departure statement on September 13, Secretary Kissinger explained further: The President has asked me to visit Africa to see whether the United States can contribute to a peaceful solution of the conflicts that are taking place there, to put an end to violence, to enable all communities to live together in peace and to avoid outside intervention. The United States wants nothing for itself. The United States national interest is involved in a moderate and peaceful evolution of Africa. And having been invited by all of the parties, I leave with hope and with a determination that it will not fail for lack of United States effort Dept. of State Press Release No. 432, Sept. 13, 1976. Between September 14 and 24 the Secretary met with the Presidents of Tanzania, Zambia, Zaire, and Kenya, with South African Prime Minister Balthazar Johannes Vorster, and with a Rhodesian delegation headed by Ian D. Smith. In London he met with British Prime Minister James Callaghan and Secretary of State for Foreign and Commonwealth Affairs Anthony Crosland. At a news conference in London on September 24, Secretary Kissinger emphasized that the principles of settlement he had put forward in South Africa were based on a British plan suggested in March. He added: This has been elaborated in detailed consultations between the British and American Governments. There have been five missions to Africa, three American and two British, in which these ideas were discussed in great detail with the African Presidents and refined in the light of their comment. So what is being considered in Salisbury is not the plan of an individual, but what we hope reflects a consensus between the United States, the United Kingdom, and the essential requirements of the leaders of Africa. It is on this basis that we hope to make our contribution to the solution of the future of southern Africa. Dept. of State Bulletin, Vol. LXXV, No. 1948, Oct. 25, 1976, p. 521. On September 24, Ian D. Smith, in a speech to Rhodesians, stated the conditions put forward by Secretary Kissinger and accepted by him for Rhodesia's move toward majority government within two years. The terms of the proposed settlement, as stated by Mr. Smith, were reported as follows: 1. Rhodesia agrees to majority rule within two years. 2. Representatives of the Rhodesian Government will meet immediately at a mutually agreed place with African leaders to organize an interim government to function until majority rule is implemented. 3. The interim government should consist of a council of state, half of whose members will be black and half white with a white chairman without a special vote. The European and African sides would nominate their representatives. Its function will include: Legislation-general supervisory responsibilities-and supervising the process of drafting the constitution. The interim government should also have a council of ministers with a majority of Africans and an African first minister. For the period of the interim government the ministers of defense and of law and order would be white. Decisions of the council of ministers to be taken by two-thirds majority. Its functions should include: Delegates legislative authority and executive responsibility. 4. The United Kingdom will enact enabling legislation for the process to majority rule. Upon enactment of that legislation Rhodesia will also enact such legislation as may be necessary to the process. 5. Upon the establishment of the interim government, sanctions will be lifted and all acts of war, including guerrilla warfare, will cease. 6. Substantial economic support will be made available by the international community to provide assurance to Rhodesians about the economic future of the country. A trust fund will be established outside Rhodesia which will organize and finance a major international effort to respond to the economic opportunities of this country and to the effects of the changes taking place. The fund will, inter alia, support the internal and external economic circumstances of the country and provide development assistance, guarantees and investment incentives to a wide variety of projects. The aim will be to expand the industrial and mineral production of the country, to enhance agricultural potential by suitable land utilization and development programs and to provide the necessary training and educational facilities to provide the essential flow of skills. The New York Times, Sept. 27, 1976, p. 8. On September 26, 1976, the Presidents of Botswana, Angola, Zambia, Mozambique, and Tanzania issued a statement congratulating the people of Zimbabwe (Rhodesia) and calling on the British Government to convene a conference to discuss the structure and functions of the transitional government, to establish the transitional government, to discuss the modalities for convening a full constitutional conference to work out the independence constitution, and to establish the basis upon which peace and normalcy could be restored in the territory. Ibid. The Geneva Conference on a Rhodesian settlement formally opened October 28, 1976, under British chairmanship. Five Rhodesian delegations were represented, four headed by black nationalists and a white delegation led by Ian Smith. Other black participants included Zimbabwe People's Army (ZIPA) commanders of the Mozambique-based guerrilla forces recently released from detention in Zambia. On December 14, 1976, the conference adjourned without reaching agreement on transitional arrangements for majority rule in Rhodesia. The New York Times, Dec. 15, 1976. The Convention on the International Maritime Satellite Organization (INMARSAT) and its Operating Agreement, opened for signature at London on September 3, 1976, contain provisions for the settlement of disputes relating to rights and obligations under the two instruments. Article 31 of the Convention and article XVI of the Operating Agreement call for negotiation between the parties, but if within a year of the time any party has requested settlement a settlement has not been reached, and if a particular procedure has not been agreed upon, the dispute shall be submitted to arbitration in accordance with the annex to the Convention. Signatories which cease to be signatories remain bound by the dispute settlement articles in respect of disputes relating to rights and obligations arising from their participation. For further discussion of the Convention and Operating Agreement, see ante, Ch. 5, § 1, pp. 217-218, and Ch. 10, § 9, pp. 561–563. The text of the annex on settlement of disputes follows: PROCEDURES FOR THE SETTLEMENT OF DISPUTES REFERRED TO IN ARTICLE 31 OF THE CONVENTION AND ARTICLE XVI OF THE OPERATING AGREEMENT Article 1 Disputes cognizable pursuant to Article 31 of the Convention or Article XVI of the Operating Agreement shall be dealt with by an arbitral tribunal of three members. Article 2 Any petitioner or group of petitioners wishing to submit a dispute to arbitration shall provide each respondent and the Directorate with a document containing: (a) A full description of the dispute, the reasons why each respondent is required to participate in the arbitration, and the measures being requested. (b) The reasons why the subject matter of the dispute comes within the competence of a tribunal and why the measures requested can be granted if the tribunal finds in favour of the petitioner. (c) An explanation why the petitioner has been unable to achieve a settlement of the dispute by negotiation or other means short of arbitration. (d) Evidence of the agreement or consent of the disputants when this is a condition for arbitration. (e) The name of the person designated by the petitioner to serve as a member of the tribunal. The Directorate shall promptly distribute a copy of the document to each Party and Signatory. Article 3 (1) Within sixty days from the date copies of the document described in Article 2 have been received by all the respondents, they shall collectively designate an individual to serve as a member of the tribunal. Within that period, the respondents may jointly or individually provide each disputant and the Directorate with a document stating their individual or collective responses to the document referred to in Article 2 and including any counterclaims arising out of the subject matter of the dispute. |