only active material owned by the Authority, and leased to them for this limited and specific purpose. One of the most immediately useful applications of atomic energy is the production and utilization of radio-active isotopes. These also are produced in nuclear reactors, either as a main or a by-product. Reactors for the production of isotopes which are designed as "safe" units that is, units which in the judgment of the Authority do not produce or use a dangerous amount or quality of fissionable materialmay be constructed and operated by others than the Authority under conditions similar to those described above for "safe" power plants. In the interest of preventing an unnecessary centralization of operations in the hands of the Authority, it seems desirable that the Authority should leave to others the field of non-dangerous isotope production to the maximum extent consistent with safety. The uses of isotopes, obtained either by irradiation in reactors, or from the fission products of the same, may be among the most beneficial results of the development of atomic energy. Some such applications are already under way and well known. Öther important benefits of the release of atomic energy will be in directions as yet unpredictable. For this reason, among others, the charter of the Authority should give it enough flexibility and discretion so that it may adjust quickly to new conditions as they arise. "(h) Subject to the provisions of the treaty and charter, to have power to take other necessary action and to issue rules and regulations." In order that the Authority may properly carry out its functions, it should possess the following rights and privileges: 1. the unhindered use of established postal, telephone, radio communication and telegraph facilities; 2. the right to operate its own system of radio communication exclusively for its own business; 3. the unhindered movement of its personnel in and between installations and to any other points, across and within national boundaries in connection with proper discharge of their functions; and 4. the use of transportation facilities in and between the various. nations for the unhindered movement of its personnel, supplies and equipment. 5. Adequate performance of its functions by the Authority requires that national authorities for control and development of atomic energy should be subordinate to the Authority to the extent necessary for its effective operation. However, in carrying out the functions of the Authority, there should be as little interference as possible with the economic plans and the private, corporate, and state relationships in the several countries involved. 6. Obviously, the controls outlined in this memorandum cannot spring into existence fullgrown and complete upon the legal establishment of the Authority. The process of putting them into effect will necessarily extend over a considerable period of time. It will have to be done by stages provided in the treaty or charter and according to prearranged schedules based on sound and logical sequence leading to full and effective establishment of all controls. 7. The exercise by the Authority of the controls referred to above. will call for a wide variety of administrative decisions based upon fair, sound and responsible judgments. In suggesting the conferring of these powers upon the Authority, it is not intended that their exer cise by the Authority should be absolute, unlimited and free from review. Obviously, as to certain specific fields and functions to be defined in the treaty, the Authority's decisions would be final. In others they would not. It is our intention in dealing with the relation of the Authority to other elements of the United Nations to treat this phase of the subject more fully, and also to present proposals for enforcement of the provisions of the Treaty and Charter as well as for sanctions for violations. 8. As a function of its control operations, the Authority should make provision for the rendering of frequent and detailed reports to the appropriate organs of the United Nations and to the constituent nations, embodying the results of its researches, new discoveries in the atomic field, the level of its material stockpiles, new locations of ores, and all other important and pertinent information. In addition, properly accredited representatives of the United Nations and of the constituent nations should be permitted, under suitable regulations, to inspect the plants, properties, records and operations of the Authority. 9. For the effective operation of the Authority in the manner contemplated it is essential that the Authority be composed of personnel of the highest character and ability. The affirmative character of the functions of the Authority in dealing both with "dangerous" operations and the dissemination of scientific data of a beneficial nature requires, and should assure, that the Authority attract such personnel. 10. Functions and powers and controls are to a certain extent reflections of the same subject from different angles. In this memorandum, devoted predominantly to controls, the repressive functions of the Authority have received more attention than its functions in the stimulation of research and of the beneficial uses of atomic energy. We want to emphasize, therefore, that we lay importance upon the Authority's activities in both fields. 239. UNITED STATES MEMORANDUM NO. 3, DEALING WITH THE RELATIONS BETWEEN THE ATOMIC DEVELOPMENT AUTHORITY AND THE ORGANS OF THE UNITED NATIONS, JULY 12, 19461 In response to the request of the Chairman, the representative of the United States submits this memorandum enlarging upon Paragraph D. 1. of his memorandum of 2 July 1946, which reads as follows: "D. The treaty should contain provisions: 1. Defining the relations between the Authority and the Security Council, the General Assembly, the International Court of Justice, and the other organs of the United Nations." The contents of this memorandum also relate to the matters dealt with in the Chairman's memorandum, submitted at the last meeting of the Sub-committee on 8 July 1946, which has been of great aid to us in the preparation of this memorandum. 1 The International Control of Atomic Energy: Growth of a Policy, Department of State publication 2702, pp. 160-165. The nature of the relations of the Atomic Development Authority with the various organs of the United Nations obviously will depend upon the powers and functions which the Authority receives and upon its status within the framework of the United Nations. Once these are made clear, the problems involved in the adjustment of the Authority to the organizational structure of the United Nations become clear and can be solved. Three general considerations appear at the outset. 1. The first arises from the fact that the question of control and development of atomic energy was neither considered nor dealt with in the framing of the Charter of the United Nations. This circumstance, however, should not be permitted to prevent bringing within the framework of their charter a matter of such vital common concern to the members of the United Nations. On the contrary, if the Charter is to survive, it must be susceptible of adaptation to meet new needs dictated by new conditions. The control and development of atomic energy, therefore, should not lead to the formation of an international agency unrelated to, or outside of, the United Nations, but rather to one fashioned in sound relationship to the Charter and to the organs thereby created. 2. Secondly, none of the existing organs of the United Nations possesses the managerial, proprietary, inspecting, and licensing powers necessary to effective international control and development of atomic energy. A new agency therefore is necessary. Moreover, even if the Charter could be construed to provide for a subsidiary organ created by collective action of several of the existing organs and possessing an aggregate of powers delegated by each of them, such subsidiary organ would not have adequate powers under the Charter. Accordingly, the Authority, as a new organ, should be established by treaty granting it all necessary powers and defining its relation with the existing organs of the United Nations. 3. The third general consideration concerns the degree of autonomy of the Authority. Having in mind the essentially nonpolitical character of the Authority, the presumably high caliber of its personnel, and the necessity for wide discretion on its part in order to achieve its purposes of control and development, great weight and a considerable degree of finality should be given to its determinations, orders and practices. Where their consideration is required by another organ, they should be accepted unless clearly erroneous or beyond the scope of the Authority's powers. Three categories of decisions may be mentioned. They will of course, need careful definition. In general they are (1) Administrative matters on which the decisions of the Authority are final; (2) Decisions on other matters not of sufficient gravity to constitute a threat to the peace. These might be subject to review, possibly by a board established for this purpose. Its decisions, in turn, should be enforced by the Security Council as procedural matters, for, regardless of the original seriousness of the offense, failure to respond to the proper orders of the Authority creates a situation demanding the attention of the Security Council. We consider, hereinafter, in its appropriate place the relation of the Authority to the International Court of Justice; (3) Serious offenses constituting a threat to the peace. These, as hereinafter outlined, fall within the jurisdiction of the Security Council and the provision of Article 51 of the Charter. One further comment is in order before taking up in detail the relation of the Authority to the several organs of the United Nations. Article 2, paragraph 7 of the Charter will not be infringed by the Authority. This paragraph is confined to matters "essentially within the domestic jurisdiction of any state". Specific recognition in the treaty that control of atomic energy cannot be essentially domestic but rather predominantly international would be sufficient to render this paragraph inapplicable. The respective functions of the Authority and of the principal organs of the United Nations, when viewed in the light of the foregoing considerations, indicate the general relationships which should prevail. They are outlined in the following paragraphs. (A) The General Assembly. The General Assembly is composed of all members of the United Nations. Its Composition, Functions and Powers, Voting and Procedure are contained in Chapter IV, Articles 9-22 of the Charter of the United Nations. Provisions with respect to the General Assembly also appear in other parts of the Charter. The character of the General Assembly and its importance in the whole concept of the Charter indicate, amongst others, the following respects in which the Authority may properly be related to it. (i) The Authority should submit periodic and, when necessary, special reports to the Assembly concerning the Authority's activities, programmes, and information. (ii) The provisions for discussion and recommendation by the Assembly contained in the Charter should be construed to include matters pertaining to the Authority. (iii) The Assembly also might approperiately have a role in connection with the budget of the Authority. (B) The Security Council. The Charter of the United Nations confers on the Security Council primary responsibility for the maintenance of international peace and security (Chapters V, VI, VII, VIII, and XII). Many of the important features of the control and development of atomic energy, though by no means all of them, are intimately associated with the maintenance of international peace and security. With respect to these features, the Authority and the Security Council mut be brought into close relationship. The following particulars in this regard are suggested: (i) In the event of an occurrence within the area of the Authority's jurisdiction constituting a threat to the peace, breach of the peace or act of aggression, such occurrence should immediately be certified by the Authority to the Security Council, the Assembly, and the signatory states. The treaty should establish this category of offenses and the conditions surrounding them. For purpose of illustration, they might include violations such as those specifically mentioned by Mr. Baruch in the United States proposal, viz: "(a) Illegal possession or use of an atomic bomb; "(b) Illegal possession, or separation, of atomic material suitable for use in an atomic bomb; "(c) Seizure of any plant or other property belonging to, or "(d) Wilful interference with the activities of the Authority; The controls established by the treaty would be wholly ineffectual if, in any such situations, to be defined in the treaty, the enforcement of security provisions could be prevented by the vote of a state which has signed the treaty. Any other conception would render the whole principle of veto rediculous. It is intended to be an instrument for the protection of nations not a shield behind which deception and criminal acts can be performed with impunity. This in no way impairs the doctrine of unanimity. No state need be an unwilling party to the treaty. But every state which freely and willingly becomes a party to the treaty, by this act, solemnly and firmly binds itself to abide by its undertakings. Such undertakings would become illusory, if the guarantee against their breach resided solely in the conscience of the one who commits the breach. All parties to the treaty and all peoples of the world, must have protection of a final and dependable character against the terrible consequences of the destructive use of atomic energy. Such protection requires international machinery which can and will function quickly-machinery which does not permit the offender to be protected by his own or another's negation of the exercise of joint power essential to the security of all. Particularly is this true, with respect to matters which become essentially procedural once the Authority has made its certification based on the substantive provision of law established by the treaty. The relation of the Authority to the Security Council should recognize this principle. Subject to this principle, the Security Council should have full jurisdiction over serious violations certified to it by the Authority. This in no manner impairs or diminishes the power of the modus operandi of the Security Council in any other situation. As the United States Representative on the Atomic Energy Commission stated at the opening session: "I want to make very plain that I am concerned here with the veto power only as it affects this particular problem. There must be no veto to protect those who violate their solemn agreements not to develop or use atomic energy for destructive purposes.' Voluntary relinquishment of the veto on questions relating to a specific weapon previously outlawed by unanimous agreement because of its uniquely destructive character, in no wise involves any compromise of the principle of unanimity of action as applied to general problems or to particular situations not foreseeable and therefore not susceptible of advance unanimous agreement. What has been said above must be emphasized. It is not intended to limit the powers, authority, responsibility or jurisdiction of the Security Council to maintain international peace and security. It is quite possible that in a major case of aggression, violation of the atomic treaty and the rules of the Authority may play an incidental part. Nothing herein suggested is intended to restrict or limit the over-riding powers of the Security Council to deal with such matters |