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The Old and the New League: The Covenant and the dumbarton Oaks Proposals

Published online by Cambridge University Press:  25 April 2017

Hans Kelsen
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Extract

The result of the conversations between the delegations of the United States, the United Kingdom, the Soviet Union, and China at Dumbarton Oaks, Washington, in the Autumn of 1944, is not a Charter for the international organization to be established after the war. It is only Proposals for such a Charter; these Proposals are, moreover, as Secretary of State Cordell Hull pointed out, neither complete nor final. They do not concern all subject matters to be regulated by the future Charter and do not present precise formulations of legal rules to be binding upon contracting parties. This work still remains to be done. Hence it may seem to be premature to compare the Dumbarton Oaks Proposals with the Covenant of the League of Nations. Such a comparison cannot do justice to the achievements at Dumbarton Oaks; it is justifiable only as an attempt to contribute some suggestions for the great task of drafting the definitive text of the future charter; it must not be taken as a conclusive criticism.

Type
Research Article
Information
American Journal of International Law , Volume 39 , Issue 1 , January 1945 , pp. 45 - 83
Copyright
Copyright © American Society of International Law 1945

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References

1 According to the wording of Art. 16, par. 4, of the Covenant the representatives of all members of the League represented on the Council, except the member to be expelled, must concur in the decision of the Council by which a state is declared to be no longer a member of the League. At the meeting in which the Soviet Union was expelled from the League the representatives of two members of the Council (Iran and Peru) were not present and the representatives of four members (China, Finland, Greece and Yugoslavia) abstained from voting. Hence it is doubtful whether the decision of the Council was in conformity with the Covenant. Cf. the article of Leo Gross, “Was the Soviet Union expelled from the League of Nations? “ above, p. 35.

2 Cf. infra, p. 72.

3 The permanent representation of the states members of the Security Council at the headquarters of the Organization is an innovation the purpose of which is to keep the Security Council always informed of events that may affect the peace of the world and thus make this agency “more able to act at a moment's notice.” See A Commentary on the Dumbarton Oaks Proposals for the Establishment of a General International Organization. Presented by the Secretary of State for Foreign Affairs to Parliament, November, 1944. London, 1944 (Miscellaneous No. 6, 1944), p. 6.—It is not quite clear how the “non-permanent” members of the Security Council can be “permanently” represented at the headquarters of the Organization.

4 Except if this principle is interpreted as “the equal right of all States to the maintenance of their political independence.” This is the interpretation of the British Commentary on the Dumbarton Oaks Proposals, p. 5. See also note 17, p. 83.

5 For further discussion of this question see Kelsen, H., Peace Through Law , Chapel Hill, 1944, pp. 23 ff.Google Scholar

6 Mr. Leo Pasvolsky, Special Assistant to the Secretary of State, said in an address on the Dumbarton Oaks Proposals delivered at the closing session of the United Nations Institute on Post-War Security at Cincinnati on Nov. 18, 1944 (Department of State Bulletin, Vol. XI, No. 285, p. 705): “The responsibility for the settlement or adjustment of international disputes or of situations likely to lead to disputes would be placed, first of all, upon the nations directly involved. It is proposed that all member states should assume the responsibility of doing everything in their power to settle their disputes peacefully, by means of their own choice… . The purpose of all this would be to keep the Security Council from being snowed under by all sorts of disputes and difficulties which can and should be handled without reference to it. The Council itself would, under the proposals, be constantly on the watch and would appeal to the nations to settle disputes by means of their own choice.”

7 Mr. Durward V. Sandifer, Acting Chief, Division of International Security and Organization, Department of State, said in an address on the Dumbarton Oaks Proposals delivered before the Federal Bar Association at Washington on Dec. 8, 1944 (Department of State Bulletin, Vol. XI, No. 285, pp. 711 ff.): “The Security Council … would not itself be a primary agency for the settlement of disputes. Its function would be to encourage settlement by the parties through peaceful means of their own choice, to recommend procedures and methods of settlement when the parties have failed to reach a settlement, and to keep constant vigil that failure to settle a dispute does not threaten the peace.” But he said also: “If the parties failed to effect a settlement by these methods they would be obligated to refer the dispute to the Security Council.” For what purpose should an unsettled dispute be referred to the Security Council? For the same purpose for which, according to Chapter VIII, Sec. A, par. 6, justiciable disputes should be “referred” to the international court of justice: to be settled by the authority to which the parties are obliged to refer the dispute.

8 The British Commentary on the Dumbarton Oaks Proposals, p. 7, says: “The word ‘normally’ is inserted because a particular dispute, even though justiciable in character, might be more appropriately dealt with by other means, such as reference to the Security Council; moreover it is always open to the parties to agree on a reference to some other tribunal.”

9 Such a provision would conform with the declaration which Secretary of State Hull made in his speech of September 12, 1943: “Political differences which present a threat to the peace of the world should be submitted to agencies which would use the remedies of discussion, negotiation, conciliation, and good offices. Disputes of a legal character which present a threat to the peace of the world should be adjudicated by an international court of justice whose decisions would be based upon application of principles of law.”

10 For further discussion of this question see Kelsen, H., Peace Through Law , pp. 19 ff.Google Scholar

11 For further discussion see Kelsen, Peace Through Law, Chapel Hill, 1944, p. 33.

12 Kelsen, Peace Through Law, p. 56.

13 This is exactly the contrary of what has been suggested by the Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice of February 10,1944. According to the proposals of the Committee (composed of representatives of the United Kingdom, Belgium, Canada, Czechoslovakia, France, Greece, Luxemburg, Netherlands, New Zealand, Norway and Poland), the new Court should be composed of nine judges. The government of each state contracting party to the international treaty establishing the Court should appoint one candidate who should be one of its own nationals. From among this group of candidates the governments, as an electoral body, should elect the nine judges. The tendency of this proposal is to increase the influence of the governments on the selection of the judges, that is to say, to make the Court an instrument of politics rather than an organ of the law. There can be little doubt that the effect of this method of nomination and election would be that each of the five Great Powers which are contracting parties to the statute of the Court would be represented—“represented” in the true sense of this term—on the court so that the Great Powers would have a majority in the Court, although, according to the Dumbarton Oaks Proposals, they would have only a minority in the Security Council. The tendency to limit as little as possible the realm of power politics is also manifested in the Report by the suggestion that the jurisdiction of the Court should be restricted to matters that are “justiciable “ and that compulsory jurisdiction should not be conferred upon the court.

14 The Proposals do not contain a provision concerning the enforcement of the decisions of the international court of justice. Such a provision is not necessary since non-fulfilment of the decision of the court may be interpreted as failure to settle a dispute in accordance with procedures indicated in Chapter VIII, Sec. A, par. 3, and hence entail the enforcement action stipulated in Chapter VIII, Sec. B. Mr. Sandifer says (as cited, p. 712): “The decisions of the court would presumably not be enforced as such, but they would have behind them the powerful pressure generated by the whole procedure of collective action, and they would be reënforced by the prospect of action to prevent any failure to abide by a decision that results in a threat to the peace.”

15 The British Commentary on the Dumbarton Oaks Proposals, p. 5, says: “The right of self-defence would of course remain to all members if they were suddenly attacked by another State. But the Organization would have power to intervene immediately and determine whether the right of self-defence has been properly used.”

16 The British Commentary on the Dumbarton Oaks Proposals, p. 4, says: “The Military Staff Committee would be responsible under the Security Council for the strategic direction of armed forces placed at the disposal of the Security Council and for advice to that body in all military matters with which it is concerned.”

17 The British Commentary on the Dumbarton Oaks Proposals, p. 5, says: “It is considered that the recognition of this general principle of ‘sovereign equality’ gives protection to States against arbitrary action by other States or by the Organization itself, while at the same time it does not involve the maintenance of the status quo for all time.”