¹ “There are those who feel that the provisions of the Dumbarton Oaks Proposals on pacific settlement were among the least satisfactory provisions of that document. At the Conference, considerable well-founded criticisms of these provisions were voiced. The view was expressed that they were not carefully thought out, that they were illogical in arrangement, and that they were repetitious in their phraseology.” Goodrich, L. M., “The Pacific Settlement of Disputes,” American Political Science Review, Vol. 39 (1945), p. 968 CrossRefGoogle Scholar. See also UNCIO, Doc. 992, III/2/27, p. 1.

² See Finch, Q. A., “International Law in the United Nations Organization,” Proceedings of the American, Society of International Law, 1945, pp. 28–40 Google Scholar; Eagleton, C., “International Law and the Charter of the United Nations,” this Journal, Vol. 39 (1945), pp. 751–754 Google Scholar.

³ See the statements by Senator Connally and Dr. Pasvolsky before the Senate Committee on Foreign Relations, Hearings, 79 Congress, First Session, pp. 271–273, 275–278.

⁴ UNCIO, Doc. 992, III/2/27, p. 1.

⁵ “The normal sequence of events contemplated in the Dumbarton Oaks Proposals would be as follows:—(1) The Security Council, either on its own initiative or at the instance of individual States, would investigate a dispute, or a situation likely to give rise to a dispute, in order to determine whether its continuance would be likely to endanger the maintenance of peace; (2) if the parties failed to seek by peaceful means of their own choice a solution of any such dispute, the Security Council would be under a duty to call upon them to do so; (3) if the parties failed to reach a solution by peaceful means, and the Security Council was of opinion that the continuance of the dispute would endanger the maintenance of peace, it would recommend to the parties appropriate procedures or methods of adjustment. …”: Report by the Australian Delegates, United Nations Conference on International Organization (Canberra, 1945), No. 118.

⁶ This was a Four Power amendment introduced originally as the first sentence of what became Chapter VI. UNCIO, Doc. 288, G/38, p. 34.

⁷ “If the dispute has no such character, the Council shall remain passive. It is also clear that ordinarily the Council will make such a decision after having investigated the dispute under Article 39”: Goodrich, L. M. and Hambro, E., Charter of the United Nations, Commentary and Documents, 1946, p. 144 Google Scholar.

⁸ The delegate of Mexico (Mr. Padilla Nervo), in the course of the debate over the Lebanese-Syrian affair, said: “This Council has not to decide whether it is a question of a dispute, and that it has no importance; that is a question that has to be decided and is within the jurisdiction and criterion of the party that is bringing the matter to the Council. All the articles of the Charter express that clearly. The only thing that the Counoil has to decide is whether that dispute or that situation or the prolongation of that situation or that dispute is likely to endanger the peace. On that, the Council has to give a decision …”: Journal of the Security Council (hereinafter cited as Journal), p. 270 (No. 15).

⁹ The Iranian note of January 19 claimed that interference of the Soviet Union in Iran had produced a “situation” which might lead to international friction. It then asserted that negotiations had failed—which would apparently lead into Article 37. However, the appeal was based upon Article 35 (1), “so that the Council may investigate the situation” (which could only be for the limited purpose of deciding the type of dispute) “and recommend appropriate terms of settlement” (which could only be done under Article 37). Journal, p. 14 (No. 2). In his note of January 26, the Iranian delegate referred to aggression, though he did not appeal to Article 39; maintained that the conditions of Article 25 (probably a typographical error) were present; and asked for the investigation of “this dispute”: Same, pp. 32–37 (No. 4).

¹⁰ In his note of January 24: Same, pp. 17–19 (No. 3).

¹¹ Same, p. 22. When the President announced that the matter had been placed on the agenda, Mr. Vyshinsky asked: “Would it mean a discussion of this matter in substance or on whether it should be discussed by the Council at all?”

¹² Journal, p. 48 (No. 5).

¹³ Same, pp. 53–57.

¹⁴ Same, p. 58.

¹⁵ Same, p. 189 (No. 10). The Australian delegate had no objection to setting up a committee of enquiry, but said “If I am asked to vote on the specific question as to whether the military actions of the British troops in Indonesia threaten the maintenance of international peace and security, thus providing a basis for action by this Council under Article 34 of the Charter I feel bound to answer ‘No’” (italics provided): Same, p. 232 (No. 13).

¹⁶ Same, p. 322; see also p. 339 (No. 16).

¹⁷ Goodrich and Hambro, p. 141.

¹⁸ This claim is sometimes made by persons who wish to strengthen the Security Council, or the procedure of pacific settlement. Thus Mr. Bevin, who gave little consideration to procedural limitations, said: “If any accuser State says there is a dispute, then there is a dispute, and if a State makes a charge against another State, and then the State against which it is made repudiates it or contests it, then there is a dispute, and the Council can make its recommendations.” Mr. van Kleffens, with whom he thought he was in agreement, took exactly the opposite viewpoint: Journal, pp. 267, 269, 270. Professor Quincy Wright, in remarks made at the recent meeting of the American Society of International Law (which will appear in the forthcoming Proceedings) takes a position similar to that of Mr. Bevin.

¹⁹ “If we have to establish commissions of inquiry simply because a Member of the United Nations thinks fit to bring a charge against another State or Government, this organization might well soon become an obnoxious tool of international ill-feeling. All sorts of accusations of one sort or another would then be presented to the detriment of peaceful relations, and that would seem highly undesirable.” Van Kleffens, at the 37th meeting of the Council.

²⁰ The transfer of this paragraph with the Article to which it was attached (see note 4, p. 514, above) was illogical and produces confusion. The paragraph is in any case unnecessary, since this right of the Council to exhort the parties is three times repeated in Chapter VI.

²¹ I make this statement upon the basis of my own detailed notes of discussions in Committee III/2 and its drafting subcommittee III/2/B. See also note 5, p. 515, above.

²² Hearings before the Committee on Foreign Relations, U. S. Senate, 79 Cong., 1st Session, p. 271. A colloquy between Senator Burton and Dr. Pasvolsky may also be quoted (pp. 284–285):

Mr. Pasvolsky: Senator, the question of the definition of danger to international peace and security or threat to international peace and security necessarily has to be left to the determination of the Council.

Senator Burton: I want to be clear that it is not sufficient to meet the requirements here that there is an international dispute and danger of breaking international peace between the two of them.

Mr. Pasvolsky: You see, the purpose of this ‘if’ clause [Article 37] is that the Security Council has to determine that a particular dispute in fact is of such nature that its continuance would be likely to endanger the maintenance of international peaoe and security. … The Security Council, however, has to be the judge as to whether the dispute is of such a nature that it should intervene and take action.

²³ “But since the answer to the question whether that matter is a dispute or a situation has consequences; consequences, namely, with regard to the voting procedure, I do not think that, in the final analysis, it can be left to the parties to decide whether a matter is a dispute or a situation, and that is a question that should be decided by the Council, having heard the development of the parties’ statements”: Mr. van Kleffens, Journal, p. 270 (No. 15).

²⁴ Same, p. 14 (No. 2).

²⁵ Same, pp. 87–92 (No. 7).

²⁶ Same, pp. 92–100 (No. 7).

²⁷ Same, p. 120 (No. 8) (italics supplied). The President, speaking as the delegate of Australia, said: “If we look at the terms of the Charter itself, we find that action by the Security Council is called for only if there is a dispute, the continuance of which is likely to endanger the maintenance of international peace and security.” He suggested that the Council should decide this question, and observed that his answer would be “No.”

²⁸ Journal, pp. 126–128.

²⁹ Same, p. 131. The President asked if it was desired “to take a vote on the question as to whether this should be regarded as a dispute, thus bringing into operation Article 27?” Later (p. 134), Mr. Vyshinsky claimed that Article 27, paragraph 3, should apply to voting on the proposal, and thereby threw proceedings into confusion.

³⁰ Same, p. 177 (No. 10).

³¹ Same, p. 15 (No. 2).

³² Same, p. 182 (No. 10). In the debate it appeared that delegates regarded the appointment of such a commission in general as desirable, as an instrument for obtaining the necessary facts and for satisfying public opinion that the Council was working efficiently; but the delegates thought that it was unnecessary in the present case.

³³ Same, pp. 183,189. Mr. van Kleffens’ words are quoted in note 15, p. 517, above.

³⁴ Same, p. 244 (No. 13). The Egyptian delegate’s proposal stated terms of settlement to be executed by the United Kingdom! Same, p. 245.

³⁵ Journal, pp. 252–256 (No. 14).

³⁶ Same, p. 139 (No. 8).

³⁷ Same, p. 267 (No. 15).

³⁸ Same, p. 268.

³⁹ Same, p. 269.

⁴⁰ Same, p. 269 (No. 15).

⁴¹ Same, p. 271 (italics supplied). It is, however, difficult to find consistency between this clear statement and the positions taken by Mr. Vyshinsky at pp. 298, 319, 342, in which he asserts at one time that there is a dispute and at another time that “ it is the business of the Council to decide” whether there is a dispute. Ad hoe argumentation has not been uncommon in the Security Council discussions.

⁴² Journal, p. 291 (No. 16).

⁴³ Same, p. 322.

⁴⁴ Same, p. 322; see also p. 339.

⁴⁵ Same, pp. 346–347.

⁴⁶ Journal, p. 352 (No. 17).

⁴⁷ Same, pp. 366–369, 378 (No. 19). He asked that it should therefore be deleted from the agenda, apparently meaning by this that the Security Council should give up its claims to jurisdiction over the matter. See also pp. 375–376.

⁴⁸ Same, p. 375.

⁴⁹ Same, pp. 381–382 (No. 20).

⁵⁰ Same, p. 353 (No. 17).

⁵¹ Same, pp. 418, 420 (No. 21).

⁵² Same, pp. 428–9.

⁵³ Same, p. 438 (No. 22).

⁵⁴ Same, pp. 450–454 (No. 23).

⁵⁵ Journal, p. 458 (No. 24). This should be compared with the statement of Mr. Stettinius, quoted at note 27, page 520, above; with the charge made by Mr. Gromyko that Mr. Byrnes wished to deal with substance, at note 48, p. 524, above; and with Part III, below.

⁵⁶ Same, pp. 463–464 (No. 24). Colonel Hodgson’s meaning was, however, rendered uncertain by his remarks made at the following meeting (32nd).

⁵⁷ Same, pp. 489–490 (No. 25).

⁵⁸ The annoyance was probably due mostly to surprise at the sudden and unexpected character of the move. It is believed that the Secretariat should be encouraged and not spurned in such matters. Its officials represent the international community and should be able to offer disinterested, impartial, and expert advice. It is their function to uphold the Charter as against national interests, and encouragement of their efforts in this function will serve to build up respect for the United Nations. The Security Council has now, according to the newspapers of June 8, affirmed the right of the Secretary-General to intervene in such matters.

⁵⁹ Journal, pp. 522–524 (No. 27).

⁶⁰ S/42 (April 18, 1946), p. 2.

⁶¹ Mr. Stettinius said “We believe that the argument in the Secretary-General’s memorandum discloses a concept of the functions of the Security Council which is rather limited and which, if accepted, would have serious consequences for the future of this body.” Journal, p. 588 (No. 30). With regard to this position, it should be recalled that it was the United States which, at Dumbarton Oaks and San Francisco, insisted upon this limited concept; and it was upon the assurance that such limitations were actually in the Charter that the Senate gave its advice and consent to ratification.

⁶² It was reported in the newspapers (but not in an official UN document) that the Soviet delegate had proposed to the Committee of Experts incorporation into the Rules of Procedure of a right of veto in connection with decisions taken under Article 34. It is to be recalled that the statement on voting procedure issued at San Francisco asserted that the “preliminary question as to whether or not such a matter is procedural must be taken by a vote of seven members of the Security Council, including the concurring votes of the permanent members.” UNCIO, Doc. 852, III/1/37 (1); see Goodrich and Hambro, p. 130.

⁶³ See the citations in the preceding note.

⁶⁴ Journal, p. 459 (No. 24).

⁶⁵ See the citations in footnote 62 above, and the Commentary on the Charter of the United Nations, British Command Paper Miscellaneous No. 9 (1945), Nos. 30, 86.

⁶⁶ The veto is brought to the reductio ad absurdum at the point where it is used to prevent decision that there is a dispute in which the veto may or may not be used.

⁶⁷ The method, and the consequent difficulties, may be compared with the methods which, it is complained, are being used by the Soviet Union against Iran.

⁶⁸ The quotation from the Committee of Experts with regard to this point is given at note 60, above.

⁶⁹ Said Mr. Gromyko: ”The members of the Committee, as is evident, have conscientiously carried out the instructions of their chiefs, the members of the Security Council. The difference of opinion in the Committee followed the same line as in the Security Council.” Journal, p. 586 (No. 30).

⁷⁰ The absentation of the Soviet delegate from meetings of the Council, and the consequent grave questions as to the effect of such absence upon the voting procedure, is an example of the way in which this opposition could be shown.

⁷¹ It is important that the Soviet Union remain in the UN, and it is more probable that she would withdraw because of illegal use of the Charter against her, confirming further her suspicion that the UN is being organized against her, than upon a decision against her upon a formal interpretation of the voting procedure. If the community of nations opposed her with regard to the veto, it is not believed that she would withdraw; her position is too disadvantageous for that.

⁷² “The matter stands at present in so confused a condition that if the present text of the voting procedure stands without amendment steps should be taken to secure the opinion of the International Court of Justice on the question of interpretation involved.

“But the simple, and preferable, course is to make sure by amendment that the veto is clearly inapplicable to any decision of the Security Council under the section dealing with the peaceful adjustment of disputes.” Report by the Australian Delegates, Annex O (Mr. Evatt), p. 89.