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Changing Patterns of Constitutional Development

Published online by Cambridge University Press:  22 May 2009

Ruth B. Russell
Affiliation:
A senior staff member of the Foreign Policy Studies Division of the Brookings Institution, Washington, D.C.
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Extract

At the end of its twentieth year the United Nations is in the midst of a constitutional crisis the outcome of which is still in doubt. During its lifetime it has survived other profound changes, some no less constitution shaking than the present one. Other developments were absorbed chiefly through a process of informal Charter interpretation and institutional adaptation; whereas the current financial crisis was allowed to reach the stage where formal confrontation of conflicting Charter interpretations could be avoided only by adopting a procedural device to evade decision that, unfortunately, also brought the Assembly to a halt.

Type
The United Nations
Copyright
Copyright © The IO Foundation 1965

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References

1 Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York: United Nations Information Organization, 1945), Vol. 1, p. 715Google Scholar.

2 Various delegations favored making the Court or the Assembly (as the plenary body) authoritative in matters of interpretation. But neither time nor disposition permitted accord on this. See Russell, Ruth B., A History of the United Nations Charter: The Role of the United States, 1940–1945 (Washington, D.C: Brookings Institution, 1958), especially pp. 925927Google Scholar.

3 See the report of Committee IV/2 (Judicial Organization, Legal Problems) in Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York: United Nations Information Organization, 1945), Vol. 13, pp. 709710Google Scholar; see also, Schachter, Oscar, ‘The Relations of Law, Politics and Action in the United Nations,’ Recueil des Cours de l'Académic de Droit International, 1963 (Vol. 96, No. 2), pp. 185190, 196–198Google Scholar.

4 The Assembly ‘accepted’ an advisory opinion of the International Court of Justice by a majority of 76 in favor, 17 opposed, with 8 abstentions (General Assembly Resolution 1854 A [XVII], December 19, 1962), but there is a question whether an Assembly vote constitutes a ‘generally acceptable’ interpretation.

5 Under General Assembly Resolution 1991 A and B (XVIII), December 17, 1963, the Security Council would be increased to fifteen members (all new members to be elected ones) and ECOSOC to 27.

6 Introduction to the Annual Report of the Secretary-General on the Work of the Organization, 16 June 1960–15 June 1961 (General Assembly Official Records [16th session], Supplement No. IA), p. 1.

7 The origins of the practice are traced in Padelford, Norman J., ‘Politics and Change in the Security Council,’ International Organization, Summer 1960 (Vol. 14, No. 3), pp. 381401CrossRefGoogle Scholar.

8 See Russell, Chapter 10, especially pp. 761–764, 770–775.

9 The Byelorussian Soviet Socialist Republic even urged (unsuccessfully) that the Assembly recommendation that Members terminate diplomatic relations with Spain be broadened to cover economic relations as well.

10 See Russell, Ruth B., United Nations Experience with Military Forces: Political and Legal Aspects (Washington, D.C: Brookings Institution, 1964), pp. 4950Google Scholar; Urquhart, Brian E., ‘United Nations Peace Forces and the Changing United Nations: An Institutional Perspective,’ International Organization, Spring 1963 (Vol. 17, No. 2), pp. 340341CrossRefGoogle Scholar; and Schachter, , Recueil des Cours de l'Académic de Droit International, Vol. 96, No. 2, pp. 206207Google Scholar.

11 For contemporary arguments pro and con this extension, see Gross, Leo, ‘Voting in the Security Council: Abstention from Voting and Absence from Meetings,’ Yale Law Journal, 02 1951 (Vol. 60, No. 2), pp. 209257CrossRefGoogle Scholar; Myres S. McDougal and Richard N. Gardner, ‘The Veto and the Charter,’ ibid., pp. 258–292; and Kogan, Norman, ‘U.N.—Agent of Collective Security,’ Yale Law Journal, 01 1952 (Vol. 61, No. 1), pp. 113CrossRefGoogle Scholar.

12 Had action been so vetoed in June, with the Assembly not in session, convening an emergency session might have seemed too slow in the circumstances, and the United States might have sought to rally collective support for Korea under Article 51. In effect, the Korean operation was a collective self-defense action but carried on within the UN framework rather than outside it, as originally anticipated. See, for example, the explanation of the United Kingdom representative in Security Council Official Records (2nd year), 140th meeting, June 10, 1947, pp. 994–995.

13 General Assembly Resolution 377 (V), November 3, 1950.

14 The Peace Observation Commission was requested by the Assembly in 1951 to set up a Balkan Subcommission and send military observers to Greece to replace the discontinued UNSCOB. It was never utilized again. See Russell, , United Nations Experience with Military Forces, pp. 1923Google Scholar.

15 Department of State Bulletin, 10 2, 1950 (Vol. 23, No. 587), p. 524Google Scholar. For other views, see Johnson, Joseph, ‘The Uniting for Peace Resolution’ in Eagleton, Clyde (ed.), Annual Review of United Nations Affairs, 1951 (New York: New York University Press, 1952), pp. 239247; andGoogle ScholarFeller, A. H., United Nations & World Community (Boston: Little, Brown and Company, 1952), pp. 3639Google Scholar.

16 See, for example,Hamilton, Thomas J. in The New York Times, 02 22, 1965Google Scholar.

17 See Russell, , United Nations Experience with Military Forces, pp. 86123Google Scholar. Mssrs. Hammarskjöld and U Thant both emphasized the limitations on peacekeeping forces; see especially, ‘Summary Study of Experience Derived from the Establishment and Operation of the Force (UNEF): Report of the Secretary-General’ (UN Document A/3943); and Thant, U, ‘A United Nations Standby Peace Force,’ Address at Harvard University, UN Press Release SG/1520, 06 12, 1963Google Scholar. See later in this volume, Leland M. Goodrich, ‘The Maintenance of International Peace and Security.’

18 In July 1964 the Soviet Union made its own proposal for establishing UN forces under Security Council control. While maintaining that ‘aggressor states’ should pay for any measures necessitated by their aggression, the Soviet proposal recognized that emergency conditions might necessitate collective defraying of expenses, in which it would be prepared to participate when international forces are established in ‘strict compliance with’ the Charter (UN Document A/5721).

19 See below in this volume, Norman J. Padelford, ‘Financing Peacekeeping: Politics and Crisis.’

20 The general concept was outlined in a 1943 ‘Memorandum concerning the Washington Meeting between British and American Economic Experts,’ in Postwar Foreign Policy Preparation, 1939–1945 (Department of State Publication 3580) (Washington, D.C: U.S. Government Printing Office, 1950), pp. 562564. See also,Google ScholarRussell, , A History of the United Nations Charter, pp. 7274Google Scholar.

21 The Charter authorized ECOSOC to establish, in addition to the particular functional commissions, ‘such other commissions’ as it required. (Article 68.)

22 Although ITO never came into existence, many of its commercial policy and commodity provisions have been applied through the General Agreement on Tariffs and Trade (GATT) and the Interim Coordinating Committee for International Commodity Arrangements (ICCICA). See Asher, Robert E. and others, The UN and Promotion of the General Welfare (Washington, D.C: Brookings Institution, 1957). PP. 240265Google Scholar.

23 General Assembly Resolution 1995 (XIX), December 30, 1964, established the UN Conference on Trade and Development as an organ of the Assembly and approved a 55-member Trade and Development Board and subsidiary organs. See Gardner, Richard N., ‘GATT and the United Nations Conference on Trade and Development,’ International Organization, Autumn 1964 (Vol. 18, No. 4), pp. 685704CrossRefGoogle Scholar; and, below in this volume, Roy Blough, ‘The Furtherance of Economic Development.’

24 General Assembly Resolutions 57 (I) and 58 (I), December 14, 1946.

25 ECOSOC Resolution 51 (IV), March 28, 1947, and General Assembly Resolution 200 (III), December 4, 1948.

26 ECOSOC Resolution 180 (VIII), March 4, 1949.

27 General Assembly Resolution 1240 (XIII), October 14, 1958. In the interests of efficiency, ECOSOC on August 11, 1964, recommended the consolidation of the Special Fund and EPTA as the UN Development Program (ECOSOC Resolution 1020 [XXXVII]).

28 OPEX officials are recruited under the program for the provision of Operational, Executive, and Administrative Personnel. See Schachter, , Recueil des Cours de l'Académie de Droit International, Vol. 96, No. 2, pp. 237238, 242–245Google Scholar.

29 See below in this volume, Walter S. Sharp, ‘The Administration of United Nations Operational Programs,’ for some of the problems of coordination and administration involved in these activities.

30 See Russell, A History of the United Nations Charter, Chapters 4 and 23.

31 Department of State Bulletin, 05 30, 1942 (Vol. 6, No. 153), p. 488Google Scholar.

32 Not all colonial powers were equally resistant. Australia and New Zealand, in fact, favored Assembly authority to

specify territories in respect of which it shall be the duty of the states responsible for their administration to furnish annual reports to the United Nations upon the economic, social, and political development of the territories concerned.

See Report by the Australian Delegates on the UN Conference (Australian Cmd. Paper, No. 24, Group E.F.4311) (1945), pp. 10, 22–24, 97Google Scholar.

33 See Russell, , A History of the United Nations Charter, pp. 813824Google Scholar. The unusual Declaration in the midst of a treaty was aimed at placating France in particular which did not want any general statement of principles and which entered a formal reservation of its right to resort to the domestic jurisdiction clause in connection with this Chapter. For a list of territories, see Everyman's United Nations (7th ed.; United Nations: Office of Public Information, 1964), pp. 344346Google Scholar.

34 Special arrangements were also made through the Assembly, by request of the major allied powers in 1949, for the other Italian colonies: Libya was to become independent with a UN commissioner helping to establish its government; and Eritrea, after investigation by a field commission and the assistance of another UN commissioner, was to become an autonomous unit federated with Ethiopia. (Ibid., pp. 134–136.)

35 This arrangement, with the United States also an administering authority, gives the Trusteeship Council four members of that class. With three permanent Security Council members as automatic nonadministering members, this has left one state to be elected to give a balanced total of eight. If Australia and the United States only were counted as administering states, then the need to include all nonadministering permanent Security Council members would make it impossible to have an evenly divided Trusteeship Council.

36 Documents of the United Nations Conference on International Organisation, San Francisco, 1945 (New York: United Nations Information Organization, 1945), Vol. 6, p. 455Google Scholar. After ‘self-determination’ was added to Article 1, the Soviet delegate left no doubt where Moscow stood on its meaning. The goals of ‘equality and self-determination of nations’ in the Charter, he said at a press conference, would help dependent peoples to realize them sooner. ‘We must first of all see to it that dependent countries are enabled as soon as possible to take the path of national independence.’ (The New York Times, May 8, 1945, p. 15.)

37 See later in this volume, Rupert Emerson, ‘Colonialism, Political Development, and the UN,’ and writings cited therein.

38 For an account of the ad hoc Committee on Information's evolution into a continuing committee of the Assembly, see Sady, Emil J., ‘The United Nations and Dependent Peoples’ in Asher, , pp. 878888Google Scholar. The Special Committee of Twenty-Four began in 1961 as a seventeen-member committee (General Assembly Resolutions 1654 [XVI], November 27, 1961, and 1810 [XVII], December 17, 1962). This Special Committee has taken over the functions of the Committee on Information, the Special Committee on South West Africa, and the Special Committee on Portuguese Territories.

39 General Assembly Resolution 2005 (XIX), February 18, 1965. The New Zealand request is in UN Document A/5880; the Secretary-General's memorandum in UN Document A'5882; a Soviet letter to the President of the Assembly ‘not supporting’ the proposal for a UN observer without ‘due consideration’ by the Assembly in UN Document A/5885; and, in UN Documents A/5893–5895, letters from the representatives of Australia, the United Kingdom, and the United States in which they solemnly reserved their governments’ positions by stating that the action did not constitute a precedent or create any obligation of ‘general applicability.’

40 Schachter, , Recueil des Cours dc l'Académie de Droit International, Vol. 96, No. 2, p. 187Google Scholar.

41 General Assembly Resolution 217 (III), December 10, 1948, which was adopted by 48 in favor, none opposed, with 8 abstentions (Byelorussian Soviet Socialist Republic, Czechoslovakia, Poland, Saudi Arabia, South Africa, Soviet Union, Ukrainian Soviet Socialist Republic, Yugoslavia), and two absences (Honduras, Yemen).

42 Russell, , A History of the United Nations Charter, pp. 900910Google Scholar.

43 In view of the stubborn adherence to domestic jurisdiction claims by the colonial states generally, it is curious that not one of them voted against the Declaration, which was passed by 90 in favor, none opposed, with 9 abstentions (Australia, Belgium, Dominican Republic, France, Portugal, Spain, South Africa, United Kingdom, United States). A similar reluctance to declare public opposition was seen in 1948 when the Communist Bloc states abstained in the vote on the Universal Declaration of Human Rights.

44 Documents of the United Nations Conference on International Organization, San Francisco, 1945 (New York: United Nations Information Organization, 1945), Vol. 3, p. 386Google Scholar.