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Uniting for Peace

Published online by Cambridge University Press:  28 March 2017

Juraj Andrassy
Juraj Andrassy*
Affiliation:
University of Zagreb
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Extract

During the discussion of the United Nations resolution “Uniting for Peace” (hereafter called “Resolution”), many arguments were advanced for and against the Resolution. Opposing interpretations of the Charter and quotations from authorities in international law were amply used to prove the assertions of each side. It seems to be useful to make a systematic survey of the principal legal questions involved, taking duly into account the arguments set forth during the discussion of the Resolution.

Type
Research Article
Information
American Journal of International Law , Volume 50 , Issue 3 , July 1956 , pp. 563 - 582
Copyright
Copyright © American Society of International Law 1956

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References

1 The heading “Uniting for Peace” embodies three resolutions. The principal object of the discussion and therefore of our examination are parts A-D of Resolution 377 A (V), U.N. General Assembly, 5th Bess., Doc. A/1481; 45 A.J.I.L. Supp. 1–6 (1951).

2 First Committee, Oct. 9–21, Docs. A/C.1/SR. 354–371; Plenary Meetings, Nov. 1–3, Docs. A/P.V. 299–301.

3 As for some other projects to strengthen the peace machinery by shifting the possibility of action to the General Assembly, see Paul H. Douglas, “United to Enforce Peace,” 30 Foreign Affairs 1–16 (1951).

4 The first official report on the Charter (Report to the President on the Results of the San Francisco Conference by the Secretary of State, Department of State Publication No. 2349, p. 60) points out as an advantage of the Charter, as compared with the Covenant of the League of Nations, that the Assembly and the Council of the League had identical functions, whereas the functions of the General Assembly and the Security Council of the United Nations are different.

5 A/C.1/SR. 360, p. 101. Cf. Bentwich and Martin, A Commentary on the Charter of the United Nations 61 (1950).

6 In Professor Kelsen's opinion (The Law of the United Nations 280–281) the above-quoted terms and the phrases, where they are to be found, have no legal importance, are legally indifferent or superfluous. We cannot share that opinion. As it will be shown later, the said words and statements have their legal meaning and are of great legal and moral importance in case a situation referred to in the Resolution should arise.

7 The construction which is here given as to the meaning of Art. 10 is shared by the commentators of the Charter. See Bentwich and Martin, op. cit. 35; Goodrich and Hambro, Charter of the United Nations 96 (1946); Kelsen, op. cit. 199.

8 Cf. Kelsen, op. cit. 201.

9 For a detailed explanation see Kelsen, op. cit. 202.

10 First Committee, Oct. 13, 1950. A/C.1/SR. 362, p. 116.

11 Plenary meeting, Nov. 2, 1950. A/P.V. 301, p. 333.

12 Delegates of Sweden (A/C.1/SR. 361, p. 108) and Pakistan (A/O.1/SR. 359, p. 96; but see A/C.1/SR. 363, p. 127).

13 Goodrich and Hambro, op. oit. 99.

14 Goodrich, , Development of the General Assembly (International Conciliation, 1951, No. 471), p. 249.Google Scholar

15 Bentwich and Martin, op. cit. 40.

16 Kelsen, op. cit. 204–205; ibid. 218: “It is practically only the taking of enforcement action under Articles 39, 41, 42, from which the General Assembly is excluded.”

17 Plenary meeting, Nov. 2, 1950, Doc. A/P.V. 301, p. 334; First Committee, A/C.1/SR. 362, p. 122.

18 See the instances given by Mr. Undéo and Mr. Dulles, First Committee, A/C.1/SR. 361 and 362, pp. 108 and 117: resolutions 39/I (relations with Spain), 193A/III (threats to the political independence and territorial integrity of Greece), Soviet complaint regarding aggression against China.

19 Cf. Sir Benegal Rau in First Committee, A/C.1/SR. 365, p. 136.

20 The above exposition is based upon the actual law and practice of the United Nations and upon a most accurate construction of the Charter. However, it may well happen that the practice of the United Nations disregards the obstacle set up by the above-discussed provision of the last sentence of Art. 11, par. 2. Indeed, that practice may create precedents where the Assembly would recommend the use of armed force without previously referring the matter to the Security Council. Cf. Goodrich, op. cit. 262, where that eventuality is also envisaged. But such practice would mean an indirect amendment to the Charter. It would be a “de facto revision” of the Charter of which there have been several examples in the short history of the United Nations, as, for instance, the change of the sense of Art. 27, par. 3, concerning voluntary abstention from voting of permanent members of the Council. See, for an analogous process with respect to the Covenant of the League of Nations, Keeton and Schwarzenberger, Making International Law Work 91.

21 For some other interpretations of Art. 12, par. 2, see the views of the Peruvian and Mexican delegates, A/C.1/SR. 356 and 360, pp. 76 and 104.

22 A/C.1/SR. 364, p. 130.

23 Cf. Kelsen, op. cit. 217. The mere fact that a matter is not actually considered by the Council is not conclusive in case the matter is deemed to require a certain delay, for instance, with the view to achieve direct agreement, etc. In that sense Sir Benegal Eau, A/C.1/SR. 359, p. 96. However, in the cases covered by Art. 39 (and by par. 1 of the Resolution) waiting tactics would seem quite inappropriate. In such a case inactivity would indicate that the Security Council is unable to act, i.e., that it is failing to fulfill its responsibilities.

24 A/C.1/SR. 359, pp. 95–96.

25 A/C.1/SR. 357, 358 and 360, pp. 85, 91 and 102. For more details on Art. 106, cf. Kelsen, Recent Trends in the Law of the United Nations 975–976 (1951); Jiménez de Aréchaga, Voting and the Handling of Disputes in the Security Council 174–175 (1950).

26 Cf. Arts. 13; 16, par. 3; 18, par 2; 58, 66, 105, par. 3. That fact was stressed by all delegates discussing that point. See, for instance, A/C.1/SR. 354, 358 and 364, pp. 64, 87, 130, etc. See, for that question, Sloan, , “The Binding Force of a ‘Kecommenda-tion’ of the General Assembly of the United Nations,” 25 British Year Book of International Law 1–33 (1948)Google Scholar.

27 Admission, exclusion, suspension of Members, approval of trusteeship agreements and of agreements entered into with specialized agencies, approval of budgets, apportionment of expenses among Members.

28 We cannot share Kelson's opinion (op. cit. 193–194, 200) that most of the functions conferred upon the General Assembly are political, since they have no legal effect, i.e., they do not constitute obligations, rights and competences. In our opinion, recommendations of the General Assembly also have legal effects. For instance, if the Assembly recommends the interruption of economic relations with a state guilty of an attempt to endanger peace, and the Members comply with that recommendation, their action is legitimate, though one or another of these states might be bound by treaty to entertain certain economic relations with the guilty state. The recommendation of the Assembly has in that case the legal effect of making lawful acts which otherwise would be qualified as breaches of a treaty. In the same way, the recommendation on collective measures with armed forces gives to the armed action of the Members the character of an action of the United Nations, while otherwise it would be a warlike action forbidden by modern international law. On this point, we give an affirmative answer to the question proposed by Goodrich, op. cit. 274: “If the action of the General Assembly is viewed as a recommendation only, then it is a question whether states not accepting the recommendation are bound to regard it as a legal basis for any force employed.”

29 Docs. A/C.1/SR. 360 and 362, pp. 103 and 119.

30 Mr. Dulles in First Committee, A/C.1/SR. 362, p. 117.

31 As stated by the same delegate, the principle of unanimity does not appear either in the preamble or in the early chapters of the Charter. First Committee, loc. cit.

32 The Security Council did not succeed in preventing either gradual deterioration of international relations or the overt manifestations of an aggressive policy. Mr. Kardelj in First Committee, A/C.1/SR. 356, p. 78.

33 The right of veto encourages permanent members to persist in their views opposing the strongest majorities. On the other hand, a majority in the Council would be firm against proposals of the vetoing Power hoping to find the necessary majority in the Assembly.

34 Sir Frank Soskice in First Committee, A/C.1/SR. 364, p. 130.

35 Sir Mohammad Zafrulla Khan in First Committee, A/C.1/8E. 363, p. 127.

36 A/C.1/SR. 364, p. 133.

37 A/C.1/SR. 365, p. 136.

38 The simple majority required by the Resolution might in many cases be larger than the two-thirds majority of Art. 18, whereas in the latter case only the “present and voting” are counted.

39 Syria, Iraq, Czechoslovakia, Soviet Union. A/C.1/SR. 364 and 365, pp. 131, 132 and 135.

40 A/C.1/SR. 362 and 364, pp. 117 and 130.

41 Kelsen, op. cit. 177, held that the decision of the Council requesting the convocation of a special session of the Assembly may be adopted according to Art. 27, par. 2. But resuming the question (in Recent Trends 983–984), Kelsen gives two possible interpretations of the pertinent provision of the Resolution, supposing that it is exclusively for the Council to decide what kind of majority is required for a decision requesting a special session of the Assembly. If the Resolution is interpreted as intending to bind the Security Council in the question of voting, it is unconstitutional. If it is assumed that the Resolution contains but a recommendation to the Council or that it provides only its convocation in case the Council makes a request by a procedural majority, the formula of the Resolution may be considered as superfluous, but not unconstitutional.

42 A/C.1/SR. 364, p. 133.

43 A/C.1/SR. 363, p. 126.

44 A/C.1/SR. 364, p. 132.

45 Security Council, First Year, Official Records, 2nd Ser., pp. 4–6: On a proposal to invite the representative of Canada to participate in the discussion on the rules of procedure of the Atomic Energy Commission, the Soviet delegate took the view that it was not a question of procedure, but one of substance, because it was necessary to decide first, under Article 31 of the Charter, whether special interests of that State were affected. Ibid. 126–129, 131: Mr. Gromyko asserted that the vote on the question of postponing a vote on the admission of a new Member was a matter of substance on the ground of being also an action. His opinion was shared by the Chinese delegate: “Delaying action is a negative action.”

46 A/C.1/SR. 364, p. 130.

47 Jiménez de Aréchaga, op. cit. 11, proposes a procedure to prevent the use of the double veto. As for the recent practice, see Rudzinski, “The So-called Double Veto,” 45 A.J.I.L. 443–161 (1951).

48 See Woolsey, , “The ‘Uniting for Peace’ Resolution of the United Nations,” 45 A.J.I.L. 132 (1951)CrossRefGoogle Scholar.

49 A/C.1/SR. 363, p. 127. From the above practical considerations it may be concluded that the convening of the General Assembly upon the request of the Security Council should not be reckoned with. Therefore States Members ought to be ready for any emergency case in order to have promptly assembled the required number of individual requests or to have reached the necessary vote in the Interim Committee.

50 Kelsen, Recent Trends 978–979. In the same sense idem, The Law of the United Nations 267. That view is shared by Goodrich, op. cit. 267, 274.

51 A similar decision referring directly to the Resolution was taken some months later at Washington by the Conference of Foreign Ministers of the Members of the Organization of American States. 24 Dept. of State Bulletin 606–607 (1951).

52 A/C.1/SR. 367, p. 147; A/P.V. 300, p. 319.

53 A/C.1/SR. 362, p. 121.

54 A/C.1/SR. 362, p. 120.

55 A/C.1/SR. 367, pp. 148, 151.

56 Cf. Duguit, Les transformations du droit public, Introduction.

* The foregoing article was completed in February, 1953.