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The So-Called Double Veto*

Published online by Cambridge University Press:  20 April 2017

Alexander W. Rudzinski
Alexander W. Rudzinski*
Affiliation:
Formerly Legal Counselor, Polish Delegation to the United Nations
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Abstract

The veto question, one of the most controversial problems facing the United Nations, has several aspects of unequal importance. First, there is the great political problem of the relations between the great Powers on the one hand, and the small and middle-sized states on the other, as well as of their role in an international organization. This problem, being a political one, is reflected in the whole constitutional structure and functions of the organs of the United Nations. Second, there is the well-established traditional legal principle of equality of states, big and small, mighty and weak. This principle was reiterated in the United Nations Charter in Article 2 (1), which reads: “The Organization is based on the principle of the sovereign equality of all its Members.” Both these aspects of the veto question are well known and have been discussed to such an extent as to be entirely left aside in these remarks.

Type
Research Article
Information
American Journal of International Law , Volume 45 , Issue 3 , July 1951 , pp. 443 - 461
Copyright
Copyright © American Society of International Law 1951

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Footnotes

*

This paper was submitted for publication in its original form in January, 1950, and stressed the far-reaching potentialities hidden in the procedure followed during the 303rd meeting on May 24, 1948, in the Czechoslovak case. In the meantime those implications became fully apparent in the method of dealing with the double veto adopted by the Security Council on Sept. 29, 1950, in the Formosa question (506th and 507th meetings).

References

1 Italics added.

2 If a qualified majority is required, any permanent member has the so-called double veto. The problem of the double veto contains furthermore two important ancillary problems: (a) Who has the power and authority to decide such a “preliminary ques-tion”? The obvious answer is: the Security Council itself. The right of the President to make a ruling that a matter is procedural is confirmed by practice but still contested, (b) May the preliminary question be properly raised and the right to use the double veto invoked in connection with any matter, or only when a reasonable doubt exists as to the procedural nature of the matter? (Limited or unlimited use of the double veto, discretionary power of permanent members.)

3 For a full discussion of that problem see Eduardo Jimtaez de Arfichaga, Voting and the Handling of Disputes in the Security Council (Carnegie Endowment for International Peace, 1950), pp. 6-9.

4 Aréchaga, loc. cit., p. 9, the “non-procedural” concept as a “residual” area.

5 Italics added.

6 Security Council, 1st Year, Official Kecords, 1st Ser., No. 1, p. 130.

7 U.N. Doc. A/578, July 15, 1948.

8 Ibid., pp. 4-5.

9 Ibid., p. 4.

10 General Assembly, 3rd Sess., Pt. II, Official Eecords, Resolutions, p. 7.

11 U.N. Doc. A/578, p. 39.

12 E.g., Vyshinsky maintained during the discussion of the Acheson Plan (Uniting for Peace) that a decision of the Security Council to convoke a special session of the General Assembly is subject to the veto (357th meeting, Oct. 10, 1950, General Assembly, 5th Sess., Official Eecords, First Committee, p. 85).

13 Wellington Koo Jr., Voting Procedure in International Political Organizations (1947), pp. 157-158.

14 E.g., Australia, TJ.N. Doc. S/P.V. 49, p. 71; Argentina, TJ.N. Docs. A/AC. 18/SR. 19, p. 7, S/P.V. 303, pp. 41-42; Syria, Security Council, 3rd Year, Official Eecords, No. 73, p. 4; Belgium, ibid., p. 23; Colombia, ibid.

15 U.N. Docs. S/P.V. 202, pp. 161, 171, S/P.V. 303, p. 28.

16 On June 26, 1946, during the 49th meeting of the Security Council a vote was taken on a draft resolution prepared by Australia and the United Kingdom stating in the preamble that the investigation of the situation in Spain by a subcommittee appointed by the Security Council had fully confirmed the facts which led to the condemnation of the Franco regime and that the subcommittee was of the opinion that the situation in Spain is one the continuance of which is likely to endanger the maintenance of international peace and security. The operative part of the draft resolution contained a decision by the Security Council to keep, without prejudice to the rights of the General Assembly, the situation in Spain under continuous observation in order to be at all times ready to take such measures as may become necessary to maintain international peace and security. (Security Council, 1st Year,Official Records, 1st Ser., No. 2, p. 401.) The vote was 9 in favor and 2 against (Poland and U.S.S.R.). The President, Mr. Nájera (Mexico), declared the resolution carried, being of a procedural character (ibid., p. 413), but was challenged by Mr. Gromyko (U.S.S.R.), who considered the resolution as concerning questions of substance and consequently his vote as a veto (ibid., pp. 413-414). The ruling of the President was put to the vote by asking “those who are in favour … that this is a question of procedure” to raise their hands. There were 8 votes in favor, 2 against (Prance, U.S.S.R.), and 1 abstention (Poland) (ibid., p. 421). Mr. Nájera (Mexico) announced: “if it is to be decided whether a question is one of procedure or substance, it is necessary to accept one or another alternative by seven votes but the five permanent members must concur. Here we have two of the permanent members deciding, against the others, that it is a question of substance.” (Ibid., pp. 421-422.) Thus the President applied the San Francisco Statement and not Art. 27 of the Charter as was immediately pointed out by Mr. van Kleffens (Netherlands) (ibid., p. 423).

17 The application of the San Francisco Statement in the question of admission of Albania to membership (57th meeting, Aug. 29, 1946) will be discussed below in detail (see A).

18 The Special Committee on Methods and Procedures of the General Assembly inserted in its report to the 4th session (Doc. A/937, Aug. 12, 1949) the following statement (par. 37, p. 30): “It is the opinion of the Special Committee that a valid point of order may relate to the manner in which the debate is conducted, to the maintenance of order, to the observance of the rules of procedure or to the manner in which Chairmen exercise the powers conferred upon them by the rules. Thus … representatives are enabled to direct the attention of the presiding officer to violations or misapplications of the rules of procedure by other representatives or by the presiding officer himself.”

19 The Soviet delegate, acting as President during the consideration of the Greek question (S/P.V. 202, Sept. 15, 1947), after having announced “we shall follow the procedure defined in par. 3 of Art. 27 of the Charter” (in voting on the proposed United States resolution), expressed the view: “As President of the Security Council I have to say that whether the question is one of procedure or of substance is not subject to the ruling of any President. The Security Council has to take a special decision on this question” (p. 132). “The President can only make a ruling on a point of order. The President cannot decide that the question is one of substance or procedure” (p. 146). It is under these circumstances not astonishing that the Australian delegate wondered whether the President did or did not rule how to vote (p. 136).

20 In contrast to the many instances of the use of the regular veto, the so-called double veto has so far been applied effectively four times and once without result. In all four cases it was the Soviet Union which cast its double veto: (1) In the Spanish question on June 26, 1946 (49th meeting, Pres. Nájera, Mexico) ; (2) in the question of ad-mission of Albania to membership on Aug. 29, 1946 (57th meeting, Pres. Lange, Poland); (3) in the Greek question on Sept. 15, 1947 (202nd meeting, Pres. Gromyko, U.S.S.E.); (4) in the Czechoslovak question on May 24, 1948 (303rd meeting, Pres. Parodi, France). The unsuccessful attempt was made by China in the question of Formosa on Sept. 29, 1950 (506th and 507th meetings, Pres. Jebb, U.K.).

21 Journal of the Security Council, No. 14, pp. 260-262.

22 Security Council, 1st Year, Official Eecords, 2nd Ser., No. 5, pp. 125-127.

23 Ibid., pp. 128-132.

24 Ibid., pp. 132-135.

25 Security Council, 1st Year, Eecords, 2nd Ser., No. 5, p. 132. The President (Lange, Poland) said: “The question which the Council was asked was whether it supports my ruling that this is a matter of procedure....I have not asked for the opposite question.” Ibid., p. 133.

26 Ibid., p. 134.

27 U.N. Doc. S/P.V. 300, p. 51.

28 Art. 34 of the Charter: “ The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance ofinternational peace and security.” Pars. 4 & 5 of Part I of the San Francisco Declaration: “4. Beyond this point, decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement under Section B, Chapter VIII. This chain of events begins when the Council decides to make an investigation, or determines that the time has come to call upon states to settle their differences, or make recommendations to the parties. It is to such dcisions and actions Wiat unanimity uf the permanent members applies, with the important proviso, referred to above, for abstention from voting by parties to a dispute. “5. To illustrate: in ordering an investigation, the Council has to consider whether the investigation—which may involve calling for reports, hearing witnesses, dispatching a commission of inquiry, or other means—might not further aggravate the situation. After investigation, the Council must determine whether the continuance of the situation or dispute would be likely to endanger international peace and security. If it so determines, the Council would be under obligation to take further steps. … ”

29 Art. 29 of the Charter: “The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.” Rule 28: “The Security Council may appoint a commission or committee or a rapporteur for a specified question.”

30 Security Council, 3rd Year, Official Eecords, No. 73, p. 19.

31 As already pointed out above, there were in fact two such occasions (Mexico, 49th meeting, and Poland, 57th meeting).

32 Ibid., pp. 19-21.

33 Ibid., p. 24.

34 Ibid., pp. 23-24.

35 U.N. Doc. S/P.V. 303, p. 126. This declaration is omitted in the printed Official Eecords and the following statement in italics is to be found: “The President's ruling stood, the motion (sic/) for its rejection having failed toobtain the affirmative votes of seven members.” (Security Council, 3rd Year, Official Records, No. 73, p.27.) It remains nevertheless clear that a procedural vote pursuant to par. 2 of Art. 27 of the Charter was taken.

36 U.N. Doc. S/P.V. 303, pp. 126-132.

37 Ibid., pp. 136-137. A good factual report on the Czechoslovak case is to be found in Yuen-li Liang's “Notes on Legal Questions concerning the United Nations,” this Joubnal, Vol. 43 (1949), pp. 134-144.

38 U.N. Doc. S/P.V. 506, p. 12.

39 Ibid., pp. 12-55.

40 U.N. Doc. S/P.V. 507, p. 17.

41 Ibid., pp. 17-20.

42 Ibid., pp. 21-26.

43 Ibid., pp. 26-30.

44 Ibid., p. 32.

45 Ibid., pp. 33-35.

46 Ibid., pp. 36-40.

47 Ibid., p. 51.

48 Report of the Special Committee on Methods and Procedures [of the General Assembly] (U.N. Doc. A/937, Aug. 12, 1949, p. 30), tries to define what may be a valid point of order. See footnote 18 above.

49 “The proposal is therefore adopted” (U.N. Doc. S/P.V. 507, p. 17).

50 “… notwithstanding the objection of our Chinese colleague the vote which the Council took this morning on the Ecuadorian resolution is procedural” (U.N. Doc. S/P.V. 507, pp. 18-20).

51 Czechoslovakia, 303rd meeting, Security Council, 3rd Year, Official Eecords, No. 73, pp. 21, 26, 27; Greece, 202nd meeting, Security Council, 2nd Year, Official Eecords, No. 89, p. 2400.

52 U.N. Docs. S/P.V. 202, pp. 132, 146, S/P.V. 303, pp. 101-105.

53 U.N. Doc. S/P.V. 303, p. 106.

54 57th meeting, Security Council, 1st Year, Official Eecords, 2nd Ser., No. 5, pp. 125-127.