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Amendments to Articles 23, 27 and 61 of the Charter of the United Nations

Published online by Cambridge University Press:  28 March 2017

Egon Schwelb
Egon Schwelb*
Affiliation:
Yale Law School
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Extract

The student of the constitutional development of the United Nations has certainly had no reason so far to complain of a scarcity of serious problems and dangerous crises claiming his attention: from Mr. Khrushchev’s proposal of 1960 to abolish the office of the Secretary General and to replace it by an executive organ consisting of three persons representing the Western Powers, the socialist states and the neutralist countries, to the long drawn-out and, at the time of this writing, still unresolved conflict concerning “certain expenses of the United Nations,” the application of Article 19 of the Charter and “the whole question of peace-keeping operations in all their aspects.” It therefore comes as a pleasant change if, for once, he can address himself to a development of the constitutional law of the Organization which is clearly of a non-revolutionary character and is being brought about by applying the very procedure which is laid down in the Charter for changes of this kind: the increase, by the procedure regulated in Article 108 of the Charter, of the number of nonpermanent Members of the Security Council from six to ten and the increase of the membership of the Economic and Social Council from eighteen to twenty-seven. This was done by amendments to Articles 23, 27 and 61 of the Charter, which were adopted by the General Assembly on December 17, 1963, and which, by August 31, 1965, were ratified by 93 Members, i.e., a number exceeding two-thirds of the Members of the United Nations, including all the permanent Members of the Security Council. The amendments entered into force on August 31, 1965. While the changes thus made in the Charter have not brought about fundamental modifications in the structure of the Organization, they are of considerable political importance. Moreover, they are the first amendments in the text of the San Francisco Charter and, in the words of Secretary of State Rusk, “this is enough by itself to endow the event with considerable significance.”

Type
Research Article
Information
American Journal of International Law , Volume 59 , Issue 4 , October 1965 , pp. 834 - 856
Copyright
Copyright © American Society of International Law 1965

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References

1 U.N. General Assembly, 15th Sess., Official Records 82-83 (A/P.V.869) (1960).

2 Advisory Opinion on Certain Expenses of the United Nations, [1962] I.C.J. Rep. 151.

3 General Assembly Res. No. 2006 (XIX), Feb. 18, 1965.

4 General Assembly Res. No. 1991 A and B (XVIII), Dec. 17, 1963, U.N. General Assembly, 18th Sess., Official Records, Supp. No. 15, at 21-22 (A/5515) (1963). For the text of the resolution see p. 985 below.

5 Statement by the Secretary General of Aug. 31, 1965, U. N. Press Release SG/ SM/353, L/1443, announcing that, with the deposit of the instrument of ratification of the United States, the amendments have taken effect. The 93 Member States which had ratified by Aug. 31, 1965, are listed in U. N. Press Release L/1444 of Aug. 31, 1965.

6 Hearings on United Nations Charter Amendments Before the Senate Committee on Foreign Relations, 89th Cong., 1st Sess. at 9 (1965) (hereinafter cited as Hearings).

7 General Assembly, Res. No. 992 (X), Nov. 21, 1955, TT.N. General Assembly 10th Sess., Official Records, Supp. No. 19, at 49 (A/3116) (1955).

8 The most recent decision to this effect was General Assembly Res. No. 1993 (XVIII), Dec. 17, 1963, U.N. General Assembly 18th Sess., Official Records, Supp. No. 15, at 10 (A/5515) (1963). On the development under both Art. 109 and Art. 108 up to and including the year 1959, see 5 Repertory of United Nations Practice 1955, at 401 et seq.(U.N. Pub. Sales No. 1955. V.2 (VOL. V ) ) ; 2 ibid.,Supp. No. 1, 1958, at 455 et seq.(U.N. Pub. Sales No. 1957. V.4 (SUPP. 1) (Vol. I I ) ) ; 3 ibid.,Supp. No. 2, 1963, at 545 et seq.(U.N. Pub. Sales No. 63.V.7). See also Sehwelb, “Charter Review and Charter Amendment—Recent Developments,” 7 Int. and Comp. Law Q. 303 (1958), and “Charter Review and Charter Amendment—Developments in 1958 and 1959,” 9 ibid,at 237 (1960). Events since 1960 which are relevant to the amendments adopted in 1963 will be described in the text below.

9 General Assembly Res. No. 796 (VIII), Nov. 23, 1953, U.N. General Assembly 8th Sess., Official Records, Supp No. 17, at 51 (A/2630) (1953). At the time, Professor Emile Giraud assessed the prospects correctly when he wrote “De 1'intérêt des études relatives à une révision de la Charte des Nations Unies qui probablement n'aura pas lieu,” 59 Revue Générale de Droit International Public 246 (1955).

10 U.N. Doe. A/3446 (1956), 3 Repertory of United Nations Practice, Supp. No. 2, 1963, at 550 (U.N. Pub. Sales No. 63.V.7); Schwelb, “Charter Review and Charter Amendment—Recent Developments,” 7 Int. and Comp. Law Q. 303, 314, 327-330 (1958).

11 The proposal to consider an increase in the number of judges of the International Court of Justice was dropped in 1959; see the statement by the Rapporteur of the Special Political Committee in the 843rd plenary meeting of the General Assembly on Nov. 25, 1959, U.N. Doc. A/P.V. 843 (1959).

12 U.N. Docs. A/SPC/SE.137, par. 31 (1959), and A/P.V. 843, note 11 above.

13 See note 10 above.

14 For details of the proceedings at the 11th to 14th sessions of the General Assembly, see the documentation and literature quoted in note 8 above.

15 The documentation on this section of the present study will be found in TJ.N. General Assembly 15th Sess., Official Records, Annexes, Agenda Item No. 28 (1960), which contains inter aliathe Report of the Special Political Committee (A/4626) (1960); in the summary records of the 186th to 199th, 214th to 219th meetings of the Special Political Committee (A/SPC/SE.186-199, 214-219) (1960), and in the verbatim record of the 960th plenary meeting, Dec. 20, 1960 (A/P.V. 960) (1960).

16 U.N. Doc. A/SPC/SR.197, pars. 14 and 17 (1960).

17 See p. 842 below.

18 U.N. Doc. A/8PC/SR.198, par. 10 (1960).

19 U.N. Doc. A/SPC/SR.214, par. 10 (1960).

20 Report of the Special Political Committee, U.N. General Assembly 15th Sess., Official Records, Agenda Item No. 23 (A/4626) (1960).

21 U.N. Doc. A/AC.81/SE.5 (1961).

22 U.N. Doc. A/AC.81/SR.6 (1962).

23 See Res. No. 81 (V) concerning representation of Africa in the Economic and Social Council in Report of the Economic Commission for Africa for 1962-1963, U.N. ECOSOC Council, 36th Sess., Official Records, Supp. No. 10, at 45 (E/3727/Rev.l) (1963).

24 ECOSOC Res. No. 974 C (XXXVI), July 22, 1963, U.N. ECOSOC Council, 36th Sess., Official Records, Supp. No. 1, at 2 (E/3816) (1963). See also ECOSOC Res. No. 974 B (XXXVI), on Representation of African States in the Economic and Social Council, ibid,at 2. Five years earlier, the Council had invited the General Assembly to give favorable consideration to an increase in the membership of the Council. See ECOSOC Res. No. 690 B (XXVI), July 31, 1958, U.N. ECOSOC Council, 26th Sess., Official Records, Supp. No. 1, at 3 (E/3169) (1958). See also Schwelb, “Charter Review and Charter Amendment—Developments in 1958 and 1959,” 9 Int. and Comp. Law Q. 237, 239-240 (1960); and, on the competence of the Council to recommend an increase in its own membership, ibid,at 247-248.

25 Report of the Committee on Arrangements, U.N. General Assembly, 18th Sess., Official Records, Annexes, Agenda Item No. 21 (A/5487) (1963), to which the report of the Subcommittee is annexed. Replies and statements by governments are in U.N. Docs. A/AC.81/SC.1/2 and 4 (1963), A/AC.81/SE.7-12 (1963), A/AC.81/SC.1/SE.1-5 (1963).

26 Letter of Sept. 5, 1963 (A/AC.81/SC.1/4 Add. 11) (1963).

27 See notes 24 and 25 above.

28 U.N. General Assembly, 18th Sess., Official Records, Annexes, Agenda Items Nos. 81, 82, 12 (A/5519) (1963). The composition of the General Committee (the so-called Steering Committee), which can b e enlarged by a simple resolution of the General Assembly and does not therefore give rise to constitutional problems, is not the subject of the present study. The General Committee had been enlarged from 17 to 21 by General Assembly Res. No. 1192 ( X I I ) , Dec. 12, 1957, U.N. General Assembly, 18th Sess., Official Records, Supp. No. 18, a t 9 (A/3805) (1957); see Schwelb, note 10 above, at 332. At the 18th Session its membership was further increased to 25. It now consists of the President of the General Assembly, 17 Vice Presidents and the Chairmen of the seven Main Committees. General Assembly Res. No. 1990 (XVIII), Dec. 17, 1963, U.N. General Assembly, 18th Sess., Official Records, Supp. No. 15, at 21 (A/5515) (1963).

29 Letter of Sept. 16, 1963 (A/5520) (1963).

30 U.N. Docs. A/SPC/SE.423, pars. 41 et seq.(1963), A/SPC/96 (1963) (verbatim reproduction of the Soviet representative's statement at the 423rd meeting of the Special Political Committee), A/SPC/SB.427, pars. 29 and 30 (1963), A/SPC/SE.429, par. 39 (1963), A/P.V.1285 (1963).

31 U.N. Doc. A/SPC/SE.423, par. 47 (1963).

32 U.N. Doc. A/SPC/SE.428, pars. 21 et seq.(1963). It is well known that in recent years Albania has acted as spokesman for mainland China in the United Nations. See, in particular, the intervention of Albania in the Art. 19 controversy on Feb. 16, 1965, U.N. Doc. A/P.V.1329 (1965).

33 U.N. Docs. A/SPC/L.104 and Rev. 1, and A/SPC/L.105 (1963).

34 U.N. Docs. A/SPC/L.109 and A/SPC/L.110 (1963).

35 U.N. Doc. A/SPC/SE.429, pars. 18 and 19 (1963).

36 See note 33 above.

37 See note 34 above.

38 At the time the amendments were adopted by the General Assembly in plenary meeting (Dec. 17, 1963), the United Nations had 113 Members, Zanzibar and Kenya having been admitted to membership the previous day; the number of votes required for adoption was therefore two-thirds of 113, i.e.,76. The votes cast for the two amendments were 97 and 96 respectively. U.N. Doc. A/P.V.1285 (1963).

39 U.N. Doc. A/8PC/8B.429, pars. 25 and 26 (1963).

40 U.N. Doc. A/8PC/SB.427, par. 20 (1963).

41 U.N. Doc. A/8PC/8B.429, par. 28 (1963).

42 Ibid.,par. 49.

43 U.N. General Assembly, 15th Bess., Official Records, Supp. No. 16, at xvi (A/4684), and Supp. No. 16A, at viii (A/4684/Add.l) (1961).

44 U.N. Docs. A/SPC/SE.429, pars. 20, 30, 31 (1963), A/P.V.1285 (1964) (statements by China and Ghana).

45 In all these votes the eleven negative votes were cast by the Soviet bloc, including Cuba, and by France; abstaining were the United Kingdom, the United States, Portugal, and South Africa, and in the plenary vote on the Economic and Social Council also China. See U.N. Docs. A/SPC/SE.429, pars. 47-48 (1963), A/P.V.1285 (1964).

46 The Secretary of State informed the Senate Foreign Relations Committee that ‘’ we have not had an explanation from them [the Soviet Union] on this point [the reasons for the reversal of the Soviet stand].” Hearings, note 6 above, at 14.

47 U.N. Doc. A/P.V.1285 (1963).

48 lbid.

49 Dated Dec. 21, 1963, and transmitted to the Secretary General with letter of Dec. 23, 1963, TT.N. Doc. A/5686 (1963).

50 U.N. Doc. 8/P.V. 1180 (1964).

51 U.N. Press Release No. L/1346, Feb. 10, 1965.

52 U.N. Press Release No. L/1396, June 4, 1965.

53 Ibid. No. L/1426, Aug. 4, 1965.

54 Ibid.No. L/1440, Aug. 24, 1965.

55 Ibid.No. SG/SM/353, L/1443, Aug. 31, 1965.

56 Kopelmanas, L'Organisation des Nations Unies 133 (1947); see Schwelb, “The Amending Procedure of Constitutions of International Organizations,” 31 Brit. Tr. Bk. of Int. Law 49, 90 (1954).

57 U.N. Doc. A/P.V.1286 (1964).

58 U.N. Docs. A/5857 and S/6157, A/5899 and 8/6202, A/5910 and S/6229, A/5914 and S/6356 (1965).

59 U.N. Press Releases Nos. L/1397, June 4, and L/1404, June 22, 1965.

60 Art. 108 provides that the amendment takes effect “when ratified,”a provision which differs from that of Art. 110(3), under which the Charter itself came into force upon the depositof ratifications by the Big Five and by a majority of the other signatory states. See Schwelb, note 56 above, at 92. The date of the ratification by the President of the United States has not been made public. The Secretary General, in Ms statement of Aug. 31, 1965, has treated the date of the deposit of the instrument of ratification (Aug. 31, 1965) as decisive.

61 On the “gentleman's agreement” of 1946, see 2 Repertory of United Nations Practice 1955, at 8 (U.N. Pub. Sales No. 1955.V.2 (Vol. 11)) and note 74 below. “Ever since the gentleman's agreement was arrived at the gentlemen have been arguing about it . “ Assistant Secretary of State Harlan Cleveland in Hearings, note 6 above, at 42.

62 On several occasions the Charter provision relating to the two-year terms of non-permanent Members was via factiset aside when a deadlock in filling a vacancy occurred and the two-year term was “ split “ between two contending candidates. This happened at the Tenth Session in 1955 between Yugoslavia, which served in 1956, and the Philippines (1957); at the Fourteenth Session in 1959 between Poland (1960) and Turkey (1961); at the Fifteenth Session in 1960 between Liberia (1961) and Ireland (1962); at the Sixteenth Session in 1961 between Rumania (1962) and the Philippines (1963); at the Eighteenth Session in 1963 between Czechoslovakia (1964) and Malaysia (1965). The constitutionality or otherwise of this practice is not affected by the amendment. However, the necessity to have recourse to it will probably not, or not often, arise. For references to the proceedings relating to some of the elections referred to in this footnote, see 1 Repertory of United Nations Practice, Supp. No. 1, 1958, at 246, Art. 23, par. 9 (U.N. Pub. Sales No. 1957.V.4 (SUPP. 1) (Vol. I ) ).

63 Art. 38 of the Draft Articles on the Law of Treaties, I.L.C. Report, U.N. General Assembly, 15th Bess., Official Records, Supp. No. 9 (A/5509) (1963); 2 I.L.C. Yr. Bk. 199 (1963).

64 See below at note 85.

65 Ambassador Stevenson stated before the Senate Committee on Foreign Relations: “ It is our considered judgment that the voting alignments under the new allocation, with a majority requirement of 9, would not differ materially from the present one, the situation of 11 members and a majority of 7… . We would not, as a result of Security Council enlargement, be more likely to have to cast a veto than now. If we wish to impede passage of a resolution without use of the veto, the voting proportions to defeat a proposal in the enlarged Council would be substantially the same as they have been in the present one.” Hearings, note 6 above, at 56 (1965). Mr. Stevenson's optimistic evaluation presupposes unity among France, the United Kingdom and the United States. If, as happened, for instance, in the Dominican question in the spring of 1965, the positions of two of the three great Western Powers, i.e.,that of the United States and of France, differ, it is not difficult to imagine that the presence on the Council of five(instead of two plus one split-term) Afro-Asian Members, some of which will undoubtedly be of the radical anti-colonial persuasion, and of one Eastern European representative, additional to that of the Soviet Union, could bring about a situation even more uncomfortable to the United States Delegation than that which obtained on that occasion in the eleven-member Council. In the French National Assembly the Rapporteur of the Foreign Affairs Committee stated that France was going to ratify the amendments not only because it supported the principle of equitable geographical distribution, but also because, through the increased representation on the Security Council of the Afro-Asian bloc, that Council will tend to regain its old prestige and will constitute “un contrepoids nécessaire à l’importance exagérée de l'Assemlée Générale.”He went on to say that, since the adoption of the “Uniting for Peace” resolution, the General Assembly had assumed excessive responsibilities and that it was necessary to return to the scheme of the Charter with decision-making powers vested exclusively in the Security Council. Statements to the same effect were also made by the Foreign Minister and, in the Senate, by his Under Secretary (Journal Officiel, Débats de l'Assembleé Nationale, No. 44 A N, June 11, 1965; Débats du Séinat, No. 25 8, June 24, 1965).

66 U.N. Doc. A/3446 (1956); U.N. General Assembly, 15th Sess., Official Records, Annexes, Agenda Item No. 23 (A/SPC/L.51 and Add., and A/SPC/L.52 and Add.) (1960).

67 U.N. Docs. A/8PO/L.104/Rev.l and A/SPC/L.105 (1963).

68 See U.N. Docs. A/8PC/L.109 (1963) and A/SPC/8B.429 (1963).

69 On the whole problem see Schwelb, ‘’ The Question of a Time Limit for the Ratification of Amendments to the Charter of the United Nations,” 4 Int. and Comp. Law Q. 475 (1955).

70 Note 10 above.

71 [1950] I.C.J. Rep. 221.

72 ECOSOC Council, 37th Sess., Official Records, at 67 (1961) (Summary record of the meeting of seventeen members, April 4, 1961, Doe. E/SR.1137). See, however, the communication from the United States representative of May 1, 1961, Doc. E/3483.

73 Note 62 above.

74 Note 10 above.

75 A similar, though not identical, device was adopted by the General Assembly in 1946 when, by resolution 87(1), Nov. 9, 1946, the terms of office of Members of the Security Council were shortened so as to permit the establishment of uniform and fixed dates applicable to all Members. (Resolutions adopted by the General Assembly during the Second Part of its First Session, October-December, 1946, U.N. Doc. A/64/Add. 1 (1947) at 175, Supplementary Rule J.)

76 U.N. Doc. A/L.217/Rev.l (1956).

77 Australia, in U.N. Doc. No. A/P.V.728, par.115 (1957). Similarly, Canada, ibid.,par. 160: “ I s it appropriate for the General Assembly to dictate to sovereign States how they should cast their votes in a secret ballot? It seems to me that it is completely inappropriate and improper.” See General Assembly Res. No. 1192 (XII), Dec. 12, 1957, U.N. General Assembly, 12th Sess., Official Records, Supp. No. 18 (A/ 3805) (1957).

78 The Executive Branch presented to the IT. S. Senate Foreign Relations Committee comprehensive charts and other information on the effect of the amendments on the distribution of seats and their geographical allocation and related subjects. Hearings, note 6 above, at 43. The representative of the United Kingdom stated in the Special Political Committee that “ it was unreasonable to expect Governments to ratify an enlargement of the councils without being clear beforehand as to what their composition would b e . “ U.N. Doc. A/SPC/8E.427, par. 45 (1963).

79 Art. 69 (3)(b) of the Draft Articles on the Law of Treaties as adopted at the 1964 session of the International Law Commission, U.N. General Assembly, 19th Sess., Official Records, Supp. No. 9, at 85 (A/5809) (1964).

80 General Assembly Res. No. 1192 (XII), note 77 above.

81 General Assembly Res. No. 1990 (XVIII), Dee. 17, 1963, TJ.N. General Assembly, 18th Sess., Official Records, Supp. No. 15, at 21 (A/5515)(1963).

82 U.N. Doc. A/SPC/L.101/Add.l-2 (1963).

83 U.N. Doc. A/SPC/L.106 (1963).

84 U.N. Docs. A/SPC/8E.427, par. 42 (1963), and A/5675, par. 17 (1963).

85 See notes 77 and 80 above.

86 U.N. Doc. A/SPC/SE.82, par. 71 (1957) (United Kingdom).

87 Ibid.,par. 49 (India).

88 U.N. Doc. A/P.V.728, par. 144 (1957) (United States).

89 U.N. Doe. A/SPC/SB.82, par. 27 (1957).

90 The representative of the Congo (Leopoldville) agreed that the expression ‘ ‘ other States” was “vague and imprecise, although it referred to certain members of the Commonwealth.” U.N. Doc. A/8PC/SE.419, par. 3 (1963).

91 U.N. Docs. A/8PC/SE.421, par. 32 (1963) (Canada); A/8PC/SE.425, pars. 19 et seq.(W63) (New Zealand).

92 U.N. Doc. A/SPC/8E.429, par. 49 (1963).

93 General Assembly Res. No. 1992 (XVIII), Dec. 17, 1963, U.N. General Assembly, 18th Sess., Official Records, Supp. No. 15, at 34 (A/5515) (1963) (“Enlargement of the Economic Committee, the Social Committee and the Co-ordination Committee of the Economic and Social Council“).

94 Rules 98-102 of the Rules of Procedure of the General Assembly 1964 (A/520/ Rov.7) (U.N. Pub. Sales No. 64.1.18); Rules 26-27 of the Rules of Procedure of the Economic and Social Council 1958 (E/3063) (U.N. Pub. Sales No. 58.1.3).

95 Economic and Social Council, Report 1963-64, TJ.N. General Assembly, 19th Seas., Official Records, Supp. No. 3, pars. 606-609 (A/5803) (1964).

96 Hearings, note 6 above, at 58.