1 General Assembly, 18th Seas., Official Records, Supp. No. 15, at 21-22, 59 A.J.I.L. 985-986 (1965); for a discussion, see Schwelb, “Amendments to Articles 22, 27 and 61 of the Charter of the United Nations,” ibid. 834-856; and idem, 60 ibid. 371-378 (1966); regarding the entry into force see “Protocol of Entry into Force of the Amendments to Articles 22, 27 and 61 of the Charter of the United Nations… . “ Doc. A/6019, Sept. 27, 1965.

2 As the delegate of Pakistan, Mr. Hasan, observed in the Special Political Committee, the proposed change “related only to a matter of form, namely, the composition of the Council, and not to the substantive aspect represented by the position of the permanent members and their veto power.” General Assembly, 18th Sess., Official Eecords, Special Political Committee, Summary records, p. 249, par. 18.

3 Gross, , ‘ ‘ Voting in the Security Council: Abstention from Voting and Absence from Meetings,” 60 Yale Law Journal 209–257 (1951).CrossRefGoogle Scholar

4 Schwelb, loc. cit. at 847.

5 In order to achieve this a pattern for the election of such members is laid down in the resolution: (a) five from African and Asian states; (b) one from Eastern European states; (c) two from Latin American states; (d) two from Western European and other states. On the legal effect of this provision see Schwelb, loc. cit. at 852-855.

6 Doc. S/RES/221(1966), 60 A.J.I.L. 925 (1966); Report of the Security Council July 16, 1965—July 15, 1966, General Assembly, 21st Sess., Official Records Supp. No. 2 (A/6302), p. 62, par. 581, and p. 67, par. 612.

7 Docs. S/7271, April 28, 1966, and S/7271/Corr. 1. The letter contained also the following statement: “The Portuguese Government, which represents a country not a member of the Security Council, has a point of view of its own which is certainly very similar to that of many countries Members of the United Nations; but it considers that, when action under Chapter VII is sought for the first time in the fifteen-member Council, and force is resorted to in the face of the abstention of some permanent Members, the entire problem needs urgent examination under the new conditions prevailing in that important organ of the United Nations.“

8 Doc. S/7392, July 1, 1966. That Government stated also that it has “given consideration to the legal aspects of this matter particularly as this is the first occasion since the amendment of Article 27 of the Charter on which the Security Council purported to give a decision involving enforcement measures in terms of Chapter VII, and as the validity of this action has been widely questioned on various grounds including the fact that two permanent members abstained from voting on the draft resolution in question.“

9 Doc. 8/7373, June 21, 1966; the Secretary General maintained his position in his letter of Feb. 17, 1967, to the Minister for Foreign Affairs of Portugal, in which he acknowledged letters of Feb. 3, 1967, addressed to him by the Portuguese Minister. Doc. S/7798, March 1, 1967.

10 The President's reply was never circulated in document form but its substance was stated by the Portuguese Government in its letter of Feb. 3, 1967, Doc. S/7735/Rev. 1 p. 3. “ Doc. 8/7735/Bev.

11 Feb. 14, 1967.

12 Doc. S/P.V. 1340th meeting, Dec. 16, 1966, pp. 76-80.

13 Doc. S/RES/232(1966); 61 A.J.I.L. 654 (1967).

14 Doc. S/7735/Rev. 1, p. 4, par. 6.

15 [1950] I.C.J. Rep. 4, particularly at 10: “ … nowhere has the General Assembly received the power to change, to the point of reversing, the meaning of a vote of the Security Council.“

16 General Assembly, 3rd Sess., Official Records, Pt. II, at 330, and Gross, loc. cit. note 3 above, at 223.

17 [1948] I.C.J. Rep. 57.

18 See Membership case, [1948] I.C.J. Rep. 57 at 61, and Expenses case, [1962] ibid. 151 at 156.

19 Doc. 933, June 12, 1945, in 13 U.N.C.I.O. Docs. 703, at 710.

20 Doc. 1153, IV/12(1), June 22, 1945, ibid. 105.

21 Doc. 1210, P/20, June 27, 1945, 1 ibid. 627.

22 Dissenting Opinion of Judge Winiarski in the Expenses ease, [1962] I.C.J. Rep. at 229.

23 I.L.C. Reports on the Second Part of Its 17th Sess., Jan. 3-28, 1966, and on Its 18th Sess., May 4-July 19, 1966. General Assembly, 21st Sess., Official Records, Supp. No. 9 (A/6309/Rev. 1), p. 49; 61 A.J.I.L. 348 (1967) (hereinafter cited as “I.L.C. Rep.“)-

24 “International Law in the United Nations,” 56 Dept. of State Bulletin 140-145, at 143 (1967).

25 See pars. 5-7 of its letter of April 27, 1966, Doc. S/7271, and also its letter of July 29, 1966, addressed to the President of the Security Council, Doc. S/7445, Aug. 3, 1966, and its letter to the Secretary General dated Feb. 3, 1967, Doc. S/7735/Eev. 1, Feb. 14, 1967.

26 See Gross, loc. cit. note 3 above, at 215 ff,

27 P. 317 above. 28 Constantin Stavropoulos, A., “ The Practice of Voluntary Abstentions by Permanent Members of the Security Council under Article 27, paragraph 3, of the Charter of the United Nations,” 61 A.J.I.L. 737–752 (1967).Google Scholar

29 Ibid, at 752.

30 ibid, at 743.

31 Ibid, at 749-750

32 Ibid, at 750.

33 The possibility of such an event occurring, while remote, must not be excluded. Dr. Stavropoulos refers (p. 752) to one instance, Resolution S/RES/202(1965) adopted on May 6, 1965, by a vote of 7 to none, with 4 abstentions, the abstainers being four of the five permanent members, namely, France, U.S.S.R., United Kingdom, and the United States. The resolution (Doc. S/6329/Rev. 1) was concerned with Southern Ehodesia. In the explanation of the vote, the representatives of Prance and the United Kingdom stated that they were concerned about the question of the competence of the Council. The representative of the United States shared these doubts, although he had “no trouble endorsing the principles set forth in the first six operative paragraphs.” The Soviet representative considered the resolution “obviously inadequate, although it contained some positive elements.” Security Council, 20th Year, Official Records, 1202nd Meeting, p. 17, par. 90; p. 19, par. 96; p. 20, par. 100; and p. 21, par. 109. The representative of the Ivory Coast suggested that the compromise had to be accepted to avoid the “notorious veto,” and “ t h a t in the light of the present circumstances, the great Powers themselves will in the end understand why the smaller Powers oppose the idea of concentrating all powers in the hands of the Security Council, and since we have just seen the kind of resolutions we may expect in that case.” Ibid., p. 25, par. 137.

34 Loc. oit. at 752. 35 Ibid, at 744-745, where a list of such resolutions is printed.

36 1964 I.L.C. Eep. (16th Sess.) (Doc. A/5809, Oct. 8, 1964), p. 86, par. 14.

37 Ibid at 85, par. 14.

38 Art. 4 reads as follows: ‘ ‘ The application of the present articles to treaties which are constituent instruments of an international organization or are adopted within an international organization shall be subject to any relevant rules of the organization.“ 1966 I.L.C. Rep. (17th and 18th Sess.), General Assembly, 21st Sess., Official Records, Supp. No. 9 (A/6309/Rev. 1), p. 11

39 P. 319 above.

40 The following are deemed representative statements: “ It is a consistent practice of the General Assembly to include in the annual budget resolutions, provision for expenses relating to the maintenance of international peace and security.” “The practice of the Organization throughout its history bears out the foregoing elucidation of the term ‘action’ in the last sentence of Article 11, paragraph 2. “ [1962] I.C.J. Eep. 151, at 160 and 165.

41 Gross, Leo, ‘ ‘ Expenses of the United Nations for Peace-Keeping Operations: The Advisory Opinion of the International Court of Justice,” 17 Int. Organization 1–35 at 14 ff. (1963).CrossRefGoogle Scholar

42 [1962] I.C.J. Rep. at 201

43 Ibid, at 304.

44 Ibid. at 168 and 204.

45 JWd. at 195. Italics in the original.

46 See ibid, at 192-195, for a refutation of alleged precedents one of which was invoked by the Court, ibid, at 157.

47 Ibid, at 195.

48 Ibid, at 197. For a different view which, however, is not free from ambiguity, see Schachter, Oscar, “The Relation of Law, Politics and Action in the United Nations,“ 109 Hague Academy, Recueil des Cours 169-256, at 187 (1963, II)Google Scholar.

49 I.L.C. Rep., op. cit. at 49.

50 Ibid, at 53, par. 15. Italics supplied. In the same sense the comments by the Government of the United States, 61 A.J.I.L. 1123-1161 at 1159 (1967), on the 1964 draft.

51 See Gross, loo. cit. note 3 above, at 215 f., and p. 227 for a statement by Dr. Liang which draws such an analogy.

52 And none was cited by Dr. Stavropoulos.

53 1.L.C. Rep., op. cit. 66.

54 Ibid, at 66, par. 2.

55 Ibid, at 65, par. 1 of Commentary to Art. 38. Italics supplied.

56 Resenne, “ I s the Constitution of an International Organization an International Treaty! Eefleetions on the Codification of the Law of Treaties,” 12 Comunicazioni e Studi (Milan, Instituto di Diritto Internazionale e Straniero) 23-89, at 77 ff. (1966).

57 I.L.C. Rep., op. cit. at 52, par. 11.

58 Ibid. at 54-56; see also Gross, loc. cit. note 3 above, at 210.

59 Ibid, at 66, par. 1 of Commentary to Art. 39.

60 But see Stavropoulos, loc. cit. at 741; “Whether the example of voluntary abstentions under Article 27, paragraph 3, of the Charter is considered as a case of interpretation or a case of modification through subsequent practice-—the practical if not the legal effects being the same … “

61 See p. 327 above.

62 [1950] I.C.J. Eep. 221 at 227 and 229.

63 Sir Gerald Fitzmaurice, ‘ ‘ The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other Treaty Points,” 33 Brit. Yr. Bk. Int. Law 203-293 at 225 (1957); see also pp. 212 and 252. Sir Gerald (at p. 225) links the principle of revision by conduct with the doctrine of “Emergent Purpose.“ Such connection may indeed exist in some cases but not in others. As an independent principle, revision by conduct may stand on its own feet.

64 Italy-United States Air Transport Agreement. Advisory Opinion of Tribunal, July 17, 1965, 4 Int. Legal Materials 974-984 at 983 (1965); also in 60 A.J.I.L. 413-418 at 418 (1966). Italics supplied.

65 Ibid.

66 I.L.C. Rep., op, cit. at 65, par. 1 of Commentary on Art. 38; 58 A.J.I.L. 1023 (1964). The Italo-American Tribunal distinguished this holding from its own view regarding practice. Ibid.

67 The text of Art. 27(3) would then read as. follows: “Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members and without the negative vote of any of the permanent members; … “ or: “Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members provided that abstention shall not be construed as a negative vote; … “

68 This is the view of Professor G. I. Tunkin in the passage from his book, Droit International Public 94-95 (1965), quoted by Stavropoulos, loc. cit. at 746. Tunkin, however, derives the custom from “ t h e interpretation of paragraph 3 of Article 27 of the Charter which has been followed by the Security Council.” His view is not shared by this writer for the reasons developed in this paper.

68a It is assumed, of course, that the process of modification of a treaty by subsequent practice applies even in case of a multilateral treaty which, like the Charter, provides a specific method for amending it. See I.L.C. Eep., p. 62, par. 4, and p. 66, par. 3 of Commentary to Art. 38.

68b The question of the substantive validity of General Assembly and Security Council resolutions is not considered here.

69 The Portuguese Government noted that Res. 221(1966) “constitutes a clear denial of the principle of freedom of the seas and the principle of free access to the sea by landlocked countries. As these principles have been embodied in conventions which have the status of international law, the Portuguese Government does not believe that the Security Council can legislate against international law as now in force. Otherwise, itmust be asked whether international law is to be regarded as repealed. If the reply should be in the negative, the resolution of 9 April will have to be regarded as invalid. If it should not be possible to give an absolute reply, the question would then be when can the Council violate international law and when can it not do so!” Doc. S/7271, April 28, 1966, p. 3, par. 5. The answer to this question will be given in the text. It may be observed here that, in the apparent contemplation of the Portuguese Government, Southern Ehodesia is a state or that it otherwise qualifies for the right of access to the sea as a landlocked country.

70 Sir Fitzmaurice, Gerald, ‘‘ The Law and Procedure of the International Court of Justice, 1951-4: Questions of Jurisdiction, Competence and Procedure,” 34 Brit. Tr. Bk. Int. Law 1–161 at 5 (1958)Google Scholar. Italics in the original.

71 Schwelb, loc. cit. at 852.

72 [1962] I.C.J. Rep. 151, at 176-177.

73 Ibid, at 279.

74 P 322 above.

75 Security Council, 20th Year, Official Eecords, 1202nd meeting, May 6, 1965, at 18, par. 90.