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Organization itself, the representatives of the Members and the officials of the Organization shall have the “necessary” privileges and immunities.
A comparable stipulation is contained in Article 7 of the Covenant of the League of Nations and in 1926 an agreement was entered into between the League and the Swiss Government, since the seat of the League was in Switzerland. The Statute of the Permanent Court of International Justice accords diplomatic privileges and immunities to the judges when engaged on the business of the Court, and in conformity with that provision an agreement was reached with the Netherlands Government. Likewise, the officials of the International Labor Organization were accorded similar status both in Switzerland and later in Canada when the Office moved to Montreal.
Several United Nations conferences which have already been held and which have either established or proposed the establishment of international organizations, have made provision, in one way or another for the privileges and immunities of the organizations and their officials. This has been true in regard to the conferences which dealt with the Food and Agriculture Organization, UNRRA, the International Monetary Fund, the International Bank for Reconstrution and Development, and the Provisional International Civil Aviation Organization.
Although this matter of detail was also left to one side in the Dumbarton Oaks discussions, it was naturally included in the Charter in order to insure the smooth functioning of the Organization free from interference by any state. This Article supplements Chapter XV which contains the basic principles concerning the international Secretariat. The United Nations, being an organization of all of the member states, is clearly not subject to the jurisdiction or control of any one of them and the same will be true for the officials of the Organization. The problem will be particularly important in connection with the relationship between the United Nations and the country in which it has its seat. The problem will also exist, however, in any country in which the officials of the United Nations are called upon from time to time to perform official duties. The United States shares the interest of all Members in seeing that no state hampers the work of the Organization through the imposition of unnecessary local burdens.
It would have been possible to make the simple statement that all of these officials and representatives would have diplomatic privileges and immunities but it is not necessarily true that these international officials will need precisely the same privileges and immunities as are needed by the diplomatic representatives of individual states. It accordingly seemed better to lay down as a test the necessity of the independent exercise of the functions of the individuals in connection with the Organization.
The provisions of Article 105 relate only to the Organization itself, and to its officials, and not to other public international organizations which may be brought into relationship with it. This is true because the statutes or agreements under which these other organizations are set up presumably will provide for the status of their respective officials.
The operation of this provision may not be automatic. It will depend upon the laws and governmental system of each state whether additional legislation will be required in order to enable each Member to carry out the obligations which this Article places upon it. Some states may take care of the matter by administrative regulation or under existing laws; others may feel the need for enacting additional legislation. Article 105 authorizes the General Assembly to make recommendations to Members regarding the implementation of the Article in the several countries, or, should it seem wiser, to propose conventions to the Members for this purpose. This Article of the Charter suggests the general rule and the general obligations, leaving it to experience to suggest the elaboration of the details.
So far as the United States is concerned, legislation will be needed to enable the officials of the United States to afford all of the appropriate privileges and immunities due the Organization and its officials under this provision. Such legislation would deal with such exemption from various tax burdens and other requirements as is commonly granted to representatives of foreign governments. The enactment of legislation and its application to such persons would not be for the purpose of conferring a favor upon any individuals. It would rather be for the purpose of assuring to the Organization the possibility that its work could be carried on without interference or interruption. The according of such privileges and immunities is merely one aspect of cooperating with the Organization itself.
TRANSITIONAL SECURITY ARRANGEMENTS
Nowhere more clearly than in the Chapter on transitional security arrangements is there manifested the intelligent realism of the architects of the United Nations. From the outset these men faced squarely the fact that the Charter could not create an organization which would spring into being possessed from the start of full power to maintain international peace and security. They knew that if it was to succeed it must not be burdened at the outset with responsibilities which it could not immediately fulfill. They knew that it must be given time to become firmly established. Above all, they knew that it would not be only an impossibility but a tragic mistake to throw upon the Organization the task of enforcing the peace against the enemy states.
Armed force is the ultimate sanction in the enforcement of peace. The United Nations will have no armed force at its disposal until at least some of the agreements envisaged in Article 43 become effective. This difficulty is taken care of by Article 106, the first of the two which comprise this short Chapter. During the indefinite time which must elapse before the Security Council decides that enough of the agreements are effective for it to begin the exercise of its responsibilities for military enforcement action, the five great powers which are to be the permanent members of the Security Council undertake to exercise on behalf of the Organization, jointly and with
other members of the United Nations, such security functions as may be necessary.
Article 107 is concerned with the enemy states in the present war. By this provision the authority and the responsibility for the enforcement of the terms imposed upon those states and for the measures to prevent them from again menacing the peace are to be left to the victorious states. The responsibilities which the Security Council may have in respect to these enemies, and the time and manner of the transfer to it of those responsibilities, are matters to be decided at a later date.
The actual duration of the periods envisaged in these two articles cannot now be foreseen. It will depend on the speed with which the special agreements on the supply of armed forces are concluded, on the state of world affairs, on the rapidity with which the new organization demonstrates its capacities, and, in respect to Article 107, on the effectiveness of measures taken against the defeated powers. Delegates at the San Francisco Conference expressed the hope, which the American people will surely share, that the day is not many years off when Chapter XVII will become a dead letter. The onerous burdens which the great powers will have to bear as members of the responsible five will surely lead them to hasten that day by transferring their special responsibilities to the Organization as speedily as practicable.
FILLING THE GAP It is highly appropriate that the Moscow Declaration should figure prominently in Article 106, which not only mentions it by name but paraphrases it as well. Not only did that great instrument give the world promise of a new international organization and mark the beginning of great-power cooperation to make that promise a fact; it also specifically provided that the great powers would cooperate with each other and with other United Nations for the maintenance of international peace and security pending the reestablishment of law and order and the inauguration of a system of general security.
Modified to fit the circumstances, paragraph 5 of the Moscow Declaration was presented to the United Nations Conference as Paragraph 1 of Chapter XII of the Dumbarton Oaks Proposals. The delegations at San Francisco from nations not represented at Dumbarton Oaks offered only two amendments affecting this paragraph. One, a French proposal to add the name of France to those of the other four powers, was adopted at once by acclamation. The other, a Mexican suggestion that the whole of this chapter be divorced from the Charter and made the subject of a separate protocol, was rejected by the Technical Committee.
The amendments being disposed of and consideration of the paragraph itself begun, it developed that, while all delegations approved the substance, few agreed with the five powers that the language was clear. Considerable discussion took place, revolving around three closely related issues, all of which applied in different degree to Paragraph 2 of Chapter XII (Article 107) as well: the duration of the interim period; the location of authority to terminate it; and the functions which the Security Council would be able to exercise until the agreements were in force. Votes on two occasions having demon
strated that the other delegations were determined on more precision, the five powers, furnishing another example of their willingness to compromise and of their cooperation, jointly presented a revised text which was adopted unchanged as Article 106.
The revisions were all in the first part of the text (corresponding to Paragraph 1 of Article XII of the Dumbarton Oaks Proposals), which now makes it clear that not all the special arrangements for the provision of armed forces have to be ratified-a process which might take years—before the Security Council can take military enforcement action. Only such agreements as the Security Council itself deems sufficient for the purpose need be in effect.
Article 106 does not, as some delegates wished it to, define precisely the functions of the Security Council during the interim period, nor the limits of the joint action which the five powers may take. Had it done so it would have established a fixed and frozen division of responsibility, and thus defeated its own purpose, which is to provide for the orderly growth of the Security Council's functions, to permit it to take successively larger bites of responsibility. This Hexibility is accomplished in two ways. First, only the power to take military enforcement action is withheld from the Security Council and that only temporarily. Secondly, the five powers which will be permanent members of the Security Council are ganted authority to fill the temporary vacuum to the extent necessary by taking action on behalf of the Organization. It should be emphasized, however, that this five-power action must be joint and that consultation with other members of the United Nations is provided for. In other words, while this action may, in a formal sense, be outside the framework of the Organization, it is to be completely within the spirit of the Charter.
THE CHARTER AND THE ENEMY STATES
The four powers which signed the Moscow. Declaration never intended that the world organization to be created should be charged with control over the defeated enemy, at least for a considerable time. For the reasons already stated, both the effectiveness of enforcement measures and the success of the Organization would probably have been jeopardized if this had been tried. Therefore, when the Dumbarton Oaks Proposals were written it was but natural that they should include provision to be leave the control of the defeated states to the responsible governments.
That this view was shared by all the Governments represented at San Francisco is shown by the fact that Paragraph 2 of Chapter XII of the Dumbarton Oaks Proposals (Article 107 of the Charter) was not the subject of any amendments. Like Paragraph 1, however, it was criticized on the ground that it lacked precision and clarity, but in this case the five powers did not feel it advisable to offer or accept any significant change, although they were agreeable to a slight modification in phraseology. The Technical Committee sustained the five powers by an overwhelming majority, after some oral clarification of the intent which was incorporated in the Rapporteur's report.
There is one fact about Article 107 which should be noted. While no limitation can be imposed by the Organization on action taken for the control of the present enemy, the Organization itself is not barred by any language in the Charter from acting in this field, so that the responsible governments may, whenever and in whatever degree they wish, transfer responsibilities of this character to it.
One further point considered by the Technical Committee dealing with this Chapter was an amendment offered by the Government of Greece, the effect of which would have been to prevent enemy states from having recourse to the Security Council or the General Assembly. The Committee rejected this amendment, believing that its intent was adequately covered in other places in the Charter and that the right of recourse should not be emphasized. However, there was general approval of its intent, and, on the proposal of the United States Delegate, the Committee voted unanimously to insert in its report an understanding that the enemy states in this war shall not have the righ of recourse to the Security Council or the General Assembly until the Security Council grants them this right.
The provisions of Chapter XVII do not mean any weakening of the United Nations—any taking away of what is granted elsewhere in the Charter. On the contrary, they will contribute in the long run to its waxing strength and success.
For the United States, Article 106 will mean a greater responsibility for world security than is accorded by the main body of the Charter, To be one of five necessarily involves more responsibility than to be one of many, even though the special attributes of the five powers will cause them to remain a distinctive element in the world structure Article 107 imposes no such responsibility. The responsibility exists, but it derives from the war and the surrender terms, not from the Charter. Indeed, in a very real sense not even Article 106, nor any other provision of the Charter, imposes any extra responsibility on this country, except in the contractual obligation to collaborate for the maintenance of international peace and security. The same responsibility would devolve upon the United States whether a world organization had been created or not. It results not from the Charter but from the position of the United States in world affairs, that is, from its power, its authority and its moral prestige.
(Chapter XVIII). The goal at Dumbarton Oaks was to agree on the broad outlines of an Organization which would permit peace-loving_states to act effectively for the maintenance of peace and security. It was understood, however, that the eventual success of this undertaking would depend on much more than the preparation of a legal instrument. A general sense of mutual confidence would have to be created; and it was recognized that this would not happen overnight. To foster and encourage the development of a real sense of security, the Organization must be given as binding and permanent a form as possible. This did not mean, of course, that changing circumstances might not make alterations in the Charter desirable, indeed necessary. But to meet this need it was thought sufficient to provide that the General