1 9 U.N. Review 14 (Jan., 1962).

2 Right of Passage over Indian Territory, [1960] I.C.J. Rep. 6; 54 A.J XL. 673 (1960).

3 Art. 2, pars. 3, 4.

4 Art. 51.

5 Arts. 11, 39, 40, 94.

6 Art. 2, pars. 1, 7; Wright, Quincy, “ United States Intervention in the Lebanon,” 53 A.J.I.L. 112 ff. (1959)Google Scholar; “International Law and Civil Strife,” 1959 Proceedings, American Society of International Law 145 ff.

7 Ibid.

8 Italy advanced this argument to justify its invasion of Ethiopia in 1935. Wright, Q., “Test of Aggression in the Italo-Ethiopian War,” 30 A.J.I.L. 55 (1936)Google Scholar.

9 See Count Mamiani and P. S. Mancini supporting the concepts of Mazzini.

10 Sarah Wambaugh, Plebiscites since the World War (Washington, Carnegie Endowment for International Peace, 1933); Wright, Q., “Recognition and Self-Determination,” 1954 Proceedings, American Society of International Law 23 ffGoogle Scholar.

11 Art. 2, par. 4. See also note 23 below.

12 Wright, Q., “Validity of the Proposed Reservations to the Peace Treaty,” 20 Columbia Law Rev. 121 ff. (1920)CrossRefGoogle Scholar.

13 Resolution, Institute of International Law, 48 Annuaire 381 (II, 1959); Wright, Q., The Role of International Law in the Elimination of War 80, 84 (Manchester University Press, 1961)Google Scholar.

14 P.C.I.J., Ser. B, No. 4; 1 Hudson, World Court Reports 143.

15 Note 2 above.

16 It is now recognized that even diplomatic establishments are not to be regarded as “extraterritorial” bits of the national domain. Herbert Briggs, The Law of Nations 789 ff. (2nd ed., New York, Appleton-Century-Crofts, 1952).

17 The attempt of the United States to protect Martin Koszta, an Hungarian national domiciled in the U. 8., from seizure in Smyrna in 1850, could, it was acknowledged, be justified only on the ground that he was a protégé” of the U. S. Consulate which enjoyed extraterritorial jurisdiction under treaty between the United States and Turkey. 3 Moore, Digest of International Law 844 (Washington, 1906).

18 Indian Press Information Bureau, release issued in Belgaum, Dec. 18, 1961, about 1 a.m.

19 Newspapers reported that Goa was taken in 36 hours; 33 Portuguese and Indians were killed and an equal number wounded, no Goans were killed. India is said to have had two divisions (30,000 troops) on the border, and the Indian representative in the Security Council said Portugal had 12,000 soldiers in Goa. The overwhelming superiority of Indian forces and the newspaper reports make unlikely the Portuguese statement in the Security Council that “Indian bombing raids on Goa caused heavy casualties.”

20 Apart from the arguments of the Indian representative in the Security Council, Mr. Krishna Menon, Indian Defense Minister, said, in an address before the Indian Society of International Law in New Delhi, on Jan. 20, 1962: “Portugal had claimed sovereignty over Goa by right of conquest, but India had never accepted this claim. . . . India had not violated any one’s integrity—Portugal had not been conquered nor had her independence been challenged.” Mr. B. K. Nehru, Indian Ambassador to the United States, in a television appearance in the United States on Feb. 11, 1962, said: “India’s action in Goa was not aggression but redemption and reunion of Indian territory.” Press reports, The Statesman, Delhi; see also note 32 below.

21 1 Indian Journal of International Law 545 (1961); see also note 2 above.

22 See notes 11, 12 above.

23 “Sovereignty, Seisin and the League,” 7 Brit. Year Bk. of Int. Law 35 ff. (1926); Wright, Q., Mandates under the League of Nations 370 (University of Chicago Press, 1930)Google Scholar; The Role of International Law, op. cit. note 13, p. 13.

24 Res. 1514 (XV), approved Dec. 14, 1960 (90,0–9). General Assembly, 15th Sess., Official Records, Supp. No. 16 (Doc. A/4684), p. 66; 8 U. N. Review 7 (Jan., 1961).

25 Res. 1542 (XV), Dec. 15, 1960. General Assembly, 15th Sess., Official Records, Supp. No. 16 (Doc. A/4684), p. 30; 8 U.N. Review 52, 57 (Jan., 1961). 20 (July, 1961); 9 ibid. 41 (Jan., 1962). Spain agreed to transmit information, but Portugal did not.

26 Res. 1654 (XVI), Nov. 27, 1961. General Assembly, 16th Sess., Official Records, Supp. No. 17 (Doe. A/5100), p. 65; 8 U.N. Review 12–13, 52 (Dec, 1961). This resolution passed by a vote of 97 to 0, with France, the United Kingdom, South Africa and Spain abstaining. Portugal was absent. A Soviet amendment, which would have proclaimed 1962 “the year of the end of colonialism,” was rejected by a vote of 19–46–36. In the 15-day debate on the question, many speakers deprecated the slow pace of colonial emancipation.

27 Res. 1699 (XVI), Dec. 19, 1961. General Assembly, 16th Sess., Official Records, Supp. No. 17 (Doe. A/5100), p. 38; 8 U.N. Review 15, 39, 57 (Dec, 1961); 9 ibid. 41, 73 (Jan., 1962). The resolution was adopted by a vote of 90 to 3 (Portugal, Spain, South Africa), with France and Bolivia abstaining.

28 Art. 73, sec. e.

29 See Wright, note 10 above.

30 Geneva Protocol for Pacific Settlement of International Disputes, 1924, Art. 15, par. 2. 19 A.J.I.L. Supp. 16 (1925); 2 Hudson, International Legislation 1390 (Washington, 1931).

31 Charter, Art. 2, par. 4; Art. 51.

32 A pamphlet issued by the Ministry of External Affairs of India on Oct. 18, 1960, entitled “Goa and the Charter of the United Nations,” emphasized the suppression of freedom in Goa; the Indian character of the territory geographically, linguistically and culturally; the movements for self-determination among Goans since 1654; the right to self-determination under the Atlantic Charter and the United Nations Charter; the status of Goa as a non-self-governing territory under Art. 73 of the Charter and the “Factors Resolution” of the General Assembly in 1953, in spite of the Portuguese legislation of 1951 professing to change the status of its overseas territories from “colonies” to “provinces” and the Portuguese insistence, in reply to notes from the U.N. Secretary General, that Portuguese territories did not come under Art. 73 because of this constitutional provision, irrespective of their actual condition. In spite of the emphasis upon “self-determination” in this document, more than a year before the taking of Goa, it is possible that India was reluctant to press for a resolution which, instead of urging transfer of Goa to India, might have urged “self-determination” for Goa, a principle which India has refused to apply in Kashmir. Furthermore, while Indian propaganda has emphasized Portuguese discrimination and oppression in Goa (see note 20 above, and address by Sardar K. M. Panikkar, former Indian Ambassador to China and Vice Chancellor of Jammu and Kashmir University, to the Indian School of International Studies, New Delhi, Jan. 20, 1962), and has suggested that the Goans generally desired union with India, articles have appeared in the Indian press noting the lower cost of living, the greater abundance of imported consumer goods, and the more easy-going atmosphere in Goa under the Portuguese regime, as well as the allegiance of many Goans to the paternalistic Catholic Church closely related to the Portuguese regime. These reports raise a doubt of how a fair plebiscite would have gone. (See Dennis Blood worth, The Statesman, Delhi, Jan. 6, 1962; S. B. De Silva, The Times of India, Delhi, March 27, 1962.) A group of Goans in Nairobi, Kenya, voted 477 to 6 for withdrawal of Indian troops and a free plebiscite in Goa to decide its future. A leader of this group said such a vote should decide whether “Goans wish to retain their identity as a nation or be submerged in the teeming millions of India.” (The Statesman, Delhi, Feb. 12, 1962.) As was to be expected, the incorporation of Goa in India has encountered difficulties. More than three months after the take-over, Prime Minister Nehru said in the Lok Sabha (Parliament) that he did not know how long it would be before military government could end and Goa could have “some measure of autonomy” as promised. He admitted that difficulties had arisen from Goans who had not reconciled themselves to the ending of Portuguese rule, and he did not wish “ to hustle people who had been used to another system whether good or bad, for a long time.” (The Statesman, March 31, 1962.)

33 See Wright, Q., “Legal Aspects of the U-2 Incident,” 54 A.J.I.L. 936 ff. (1960)Google Scholar; Diversion of Water from the River Meuse (1937), P.O.I.J., Ser. A/B, No. 70, p. 70; 4 Hudson, World Court Reports 232.

34 Naulilaa Incident, Portugal-Germany, Arbitral Decision, July 31, 1928. Briggs, The Law of Nations 951.

35 Briggs, op. cit. 960 ff., referring to League of Nations action in respect to Italian “reprisals” in the Corfu incident of 1923; and Philip Jessup, A Modern Law of Nations 157 ff.

36 It seems to have been suggested that India was lukewarm on the colonial issue during the preliminary conference at Cairo in September, 1961. It has also been suggested that the Indian action in Goa (which was said not to have been the result of a formal Cabinet decision) was to manifest a strong policy to counteract parliamentary criticism of the ineffective policy against Communist China’s aggressions on the Northern frontier; to help Krishna Menon, the Defense Minister, in his campaign for election in Bombay; and from apprehension that Portugal might seek to embarrass India by ceding a naval base in Diu or Goa to Pakistan or some other Power. Whatever may have been the motivation, articles vilifying Portugal’s administration of Goa and accusing that country of aggression in India began to appear in the Indian press in late November, 1961, after speeches on the subject by Prime Minister Nehru in the Lok Sabha on Nov. 25, 1961, and by Defense Minister Krishna Menon in Bombay on Nov. 27, 1961. This press campaign, summarized in Indian Foreign Affairs, Dec, 1960, pp. 11 ff., aroused such a vigorous popular opinion, previously quiescent on the Goa situation, that the government, trapped by its own propaganda, felt obliged to send a large force to the Goan border. Once there, this force could not turn back without serious loss of morale by the soldiers and loss of confidence by the public.

37 Francis of Victoria and other writers of the Naturalist School of international law did not accept this theory, but held that Montezuma of Mexico and other non- Christian states had equal rights under natural law. Practice in the age of colonial expansion, however, accepted the theory stated by Chief Justice John Marshall in the United States that: “The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity, in exchange for unlimited independence” (Johnson v. Mackintosh, 8 Wheaton 543 (1823)).

38 According to Henry Sumner Maine, International Law, p. 38 (New York, 1888), American statesmen and jurists look upon the rules of international law “ as a main part of the conditions on which a state is received into the family of civilized nations.” The U. S. has sometimes refused to recognize new governments on the ground that they did not accept international law.

39 Guha Roy, S. N., “ I s the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?” 55 A.J.I.L. 867 (1961)Google Scholar; see also 12 Österreichische Zeitschrift für Öffentliches Recht 128 (1962). Sir Henry Maine (op. cit. 34) supports this position when he says the Christian nations, “ by the vast superiority of their attainments in arts and commerce as well as in policy and government . . . have established a law of nations peculiar to themselves.” Sir James Brierly has pointed out that, because of this attitude, some Asian nations “have begun to claim the right to select from among its rules only those which suit their interests or which arise out of agreements to which they have themselves been parties” (The Law of Nations (1949), p. 1). See also Anand, E. P., “Role of the ‘New’ Asian-African Countries in the Present International Legal Order,” 56 A.J.I.L. 387 ff. (1962)Google Scholar; J. J. G. Syatauw, Some Newly Established Asian States and the Development of International Law 18, 25, 200 (The Hague, Nijhoff, 1961); Wright, Quincy, “ The Strengthening of International Law,” 98 Hague Academy Recueil des Cours 74 ff. (1959, III )Google Scholar.

40 Quincy Wright, Mandates under the League of Nations 3 ff. (University of Chicago Press, 1930).

41 See notes 24–27 above.

42 The United Nations seems to have acquiesced not only in Israel’s forcible acquisition of territory, but also in that country’s refusal to accept the policy, several times affirmed by the General Assembly, for the internationalization of Jerusalem. It has also acquiesced in the partition of Korea and Kashmir contrary to its asserted policy of unification of these areas by plebiscite.

43 Courts have on occasion recognized that the kidnaping of a child at the instigation of the mother, or of a criminal when extradition is not possible, should be tolerated. The Delhi police were puzzled as to the proper action to take on the complaint of Mr. Satish Bhatnagar that his wife, a British national, had kidnaped their son Kavi and taken him to England in March, 1962. (The Statesman, Delhi, March 3, April 12, 1962.) Governments have sometimes withheld demands for restoration of persons kidnaped in their territory for trial abroad, as did Argentina in the Eichmann case (1961), after gaining moral support in the United Nations; and courts have often held, as did the Israeli court in the Eichmann case, that they were not prevented from assuming jurisdiction in a criminal trial because custody of the accused was illegally obtained. Ker v. Illinois (1886), 119 U. S. 436; Briggs, op. cit. 579.