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useful, to call upon the parties to such disputes to settle the disputes by means of their own choice. In other words, to remind them of their obligation to do so.
Now, the Security Council at any stage may investigate a dispute, or it may investigate any situation which might lead to international friction or give rise to a dispute, and investigate it for the purpose of determining whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
Senator Thomas of Utah. I am wondering if we can have a word about investigation there in connection with the question asked by Senator Millikin sometime ago! It was as to the investigatorial powers of the Assembly, I think he was thinking about. Is this Security Council power of investigation so broad that it includes all fields !
Mr. PASVOLSKY. The Security Council is empowered to make investigations here for a definite purpose—for the purpose of determining whether or not the continuance of a dispute or situation is likely to endanger the maintenance of international peace and security, because the Security Council, as is indicated later on, takes action only when it determines that a particular dispute is of such a nature that its continuance is likely to endanger the maintenance of international peace and security.
Senator Thomas. Can it investigate a nation to see whether it is living up to its obligations under this agreement ?
Mr. PASVOLSKY. It will investigate a dispute or a situation when it might lead to international friction or give rise to a dispute. I don't see how it can investigate a nation. It can certainly study a nation's behavior as expressed in its action.
Senator THOMAS. Can it study a nation's behavior to the extent that if a certain nation is made a trustee of a backward people it can step in and see whether it is honorably living up to that trusteeship or not?
Mr. PASVOLSKY. Senator, may I defer that question until we come to the trusteeship question?
Senator THOMAS. If you won't forget it.
Mr. PasvoLSKY. I won't forget it. You will remind me of it. That is a rather complicated problem there.
Senator THOMAS. It is rather important, is it not, Doctor?
Mr. PASVOLSKY. Oh, yes. But the importance here is that the investigation is for this particular stated purpose.
Senator MILLIKIN. Doctor, may I take your attention back to paragraph 2 of article 33? It says:
The Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such means.
Is that a general direction or would the Security Council have the authority to tell the party to settle, for example, by arbitration ?
Mr. PASVOLSKY. No; I think this definitely means to call upon the parties to settle a dispute by means of their own choice. The other power comes at a somewhat later stage. Or it may come at this stage if the Council wishes to do so, but it is not necessarily so.
Senator MILLIKIN. But you would say the Security Council does not have the right to order the parties to accept a particular method of peaceful settlement ?
Mr. PASVOLSKY. No; it has not.
Why, may I ask right there, if the parties to a dispute adopt one of these methods enumerated in article 33, have they not performed their full obligations, or could they be required to try another additional method ?
Mr. PASVOLSKY. They are required, Senator, I should say, under article 33 to exhaust all of these methods or those that may be applicable to a particular situation, because there is an obligation laid on them later on in this chapter in article 37, that if the parties to a dispute of the nature referred to in article 33 fail to settle it by the means indicated in that article, they shall refer it to the Security Council. Therefore, if they refer a dispute to the Security Council, the chances are that the first thing that the Security Council would do would be to say to them, “Have you exhausted the means enumerated in article 33 and any other means that you could think of for settling this dispute!”
The CHAIRMAN. Lest there be some misapprehension, somebody spoke about the authority of the Council to compel the states to do something. The suggestion that they adopt these peaceful methods only arises because of their obligation and their promise to do so, but there is no compulsion to make them do these things. Of course, if they don't, and a situation develops which threatens world peace, the quarrel then goes to the Security Council.
Mr. PasvoLsky. That is right. The quarrel goes to the Security Council, and even so the Security Council can only recommend at this stage.
The CHAIRMAN. Oh, yes; it cannot compel them, though.
Mr. PASVOLSKY. Senator, there is a very important distinction to be kept in mind here. At this stage, the determination of the Security Council is on the subject of whether or not a dispute or a situation is of such a character that its continuance may lead to a threat to the peace or a breach of the peace. At a later stage, or at the next stage to which I will come in a minute, the determination of the Council will be as to whether or not a particular dispute or situation in fact represents a threat to the peace or a breach of the peace, and then the whole action is different. But as long as we are in the stage of determination by the Council as to whether or not the continuance of the situation is likely to lead to a threat to the peace or a breach of the peace that stage involves only the procedures described in chapter VI under which the Security Council may make various recommendations.
Senator Lucas. Let me ask you this question, Doctor. Assume that a dispute arose between two nations and they failed to follow through—two nations that signed up the Charter—and they failed to carry through the suggestions made in chapter VI of article 33, is not there some penalty that can be attached to that nation that fails to follow through after it has obligated itself to do that very thing?
Mr. Pasvolsky. Senator, when that happens, when the dispute is not settled as a result of action under article 33, then article 37 comes into play, as follows:
Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council.
Then the Security Council, whenever a dispute is referred to it in those terms, makes the determination as to whether or not the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security. That is, it has to make a determination as to whether or not its intervention, which is provided for in the last two lines of that paragraph, will do more good than harm or the other way around. It has to decide whether a dispute is really of such a nature as described here. If it decides that the dispute is of such a nature, then it has no alternative—it has to act. Its action may be under article 36 which provides that it may recommend appropriate procedures or methods of adjustment. And there is, I think, part of the answer to Senator Millikin's question, that at this stage the Security Council may recommend not merely settlement by means of their own choice, but settlement by a particular means and by a particular method.
To go on further, if the Council considers that the situation warrants it, it can actually recommend the terms of the settlement. It may also recommend the terms of settlement when all the parties to any dispute request it to do so before reporting to it that they have failed to reach a solution of their problem by other means of their own choice.
Senator Austin. May I ask some questions at that point, Doctor? Mr. PASVOLSKY. Yes, sir.
Senator AUSTIN. In the first place, we find that term "international security and peace” throughout the several chapters relating to the Security Council, and I first want to have you tell us what is recorded in the record as a disturbance or a threat to the maintenance of international peace and security. That is, my question means whether the threat of a disturbance between any two nations in the world falls within that expression!
Mr. PASVOLSKY. Yes, sir; it does.
Senator AUSTIN. It is not necessary, then, for the Security Council in order to have jurisdiction to find that the disturbance is of so grave an extent as to comprehend the peace of the world and threaten world war?
Mr. PASVOLSKY. The Security Council has discretion in determining when a situation or a dispute constitutes a threat to the peace.
Senator AUSTIN. Now, then, the precise change which occurs here in article 37 and in contrast to chapter VIII, section 9, subsections 4 and 5, of the Dumbarton Oaks proposals, is a change from the words in the Dumbarton Oaks proposals to "recommend appropriate procedures and methods of adjustment" to the term "to recommend such terms of settlement as it may consider appropriate." What does the record show was the thought at the San Francisco Conference that led to this very important change from the consideration of the sole question of security to the consideration of the merits of an issue and the finding of what is just and what is right and recommended action accordingly? What was the thought that caused that great change?
Mr. PASVOLSKY. Senator, I would like to call your attention first of all to paragraph 1 of article I which defines what is meant by the
phrase "to maintain international peace and security.” That paragraph saysto maintain international peace and security, and to that end: To take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
That is the definition of the concept of the maintenance of international peace and security.
Then we come to the place where the Organization places the pri. mary responsibility for the performance of this function in the hands of the Security Council. So the Security Council becomes responsible for carrying out both of these two functions, the repressive function, if necessary, and the very important—the extremely important-preventive or adjustment function, as far as possible.
When we come to the chapter on Pacific Settlement of Disputes, at Dumbarton Oaks and in the Dumbarton Oaks document, the Security Council was given the authority to recommend appropriate procedures or methods of adjustment. In further consideration of the subject, and particularly in the light of the implications of the paragraph which I have just read that the function of the Organization is to bring about pacific settlement of disputes and take repressive action if necessary, if pacific settlement fails, it was thought that the powers which were given to the Security Council under the heading of Pacific Settlement were inadequate from that point of view; that even the League Council had the right to make recommendations to the parties as to terms of settlement.
Now, the power which was given to the Security Council to recommend appropriate procedures or methods of adjustment was retained. It is now found in article 36. It is a power of the Security Council. But in addition to that, two other authorizations are given to the Security Council. One is to recommend terms of settlement if all the parties to a dispute ask it to do so.
Senator Austin. In effect it gives the authority to arbitrate, does it?
Mr. PASVOLSKY. That is right. It gives it authority to act as a special arbitral tribunal or a special conciliation agency as one of the means which a state can choose. That is, you include the Council in the phrase "other peaceful means of their own choice.” That is matched by the right of the Security Council to recommend not only appropriate procedures or methods of adjustment, but, in grave cases and in appropriate cases, to recommend also terms of settlement when it comes to the conclusion that with respect to a dispute which it has determined to be of such a nature that its continuance is likely to impair peace and security, it could perform the best service in the field of pacific settlement by recommending terms of settlement rather than merely methods of settlement. The Security Council should not be prevented from exercising that function, because in that way its activities in the field of peaceful settlement are increased and strengthened, and that, it was felt, was all to the good.
Senator AUSTIN. I would like to know whether this is a correct judgment of what was done and what you finally did. Is it true that you accomplished the combination of the authority to pass upon the
merits of an issue and to enforce it by arms—that combination in the Security Council?
The CHAIRMAN. May I interject there that the recommendation carries no compulsion whatever.
Senator AUSTIN. That is just the point. Let us see if it does. Mr. PASVOLSKY. I would like to say a word on that.
Senator Austin. I call your attention to page 84 of the report to the President by the Secretary of State in which you will find this language relating to enforcement:
The parties are not obligated at this stage of a dispute to accept the terms of settlement recommended by the Security Council, any more than they are obligated to accept the Council's other recommendations. If, however, their failure to do so results in a threat to the peace, then the enforcement provisions of chapter VII come into play.
The Council has previously, in order to assume jurisdiction, made that last finding that there is a threat to the peace which grows out of this failure of the parties to settle among themselves. That was what gave the Council jurisdiction. Now the Council makes its recommendation. On the merits, it decides that one party is the aggressor, and recommends the remedy for the aggression. The aggressor says, "We are not obliged to take your recommendation.” Thereupon, the Council finds that their failure to do so results in a threat to the peace, and therefore the enforcement provisions of chapter VII come into play. Is there anything wrong with that application of the report?
Mr. PASVOLSKY. Well, Senator, I think that when failure to settle a dispute by any of the means that are proposed here or in accordance with the terms that are recommended results in a situation which the Security Council considers as becoming a threat to the peace, then the Security Council presumably under its responsibility and power can take any measures that it feels necessary in order to restore or maintain international peace and security; provided there intervenes a determination by it that a threat to the peace exists. In this case, since it is a threat to the peace, its action is to maintain security.
If you will recall, Senator, the language of the Dumbarton Oaks proposals contained a paragraph which disappears in the new draft because it was
considered no longer necessary and was covered by other provisions. That is a paragraph which was originally paragraph 1 of section B of chapter VIII:
Should the Security Council deem that a failure to settle a dispute in accordance with procedures indicated in paragraph 3 of section A, or in accordance with its recommendations made under paragraph 5 of section A, constitutes a threat to the maintenance of international peace and security, it should take any measures necessary for the maintenance of international peace and security in accordance with the purposes and principles of the Organization.
The substance of that paragraph is now embodied in article 39 which is the original paragraph that follows and is a generalized paragraph. It is embodied in part in this proposition and it is embodied in part in the new proposal about prelminary measures in article 40. This innovation, or what looks like an innovation in the terms of the Dumbarton Oaks proposals, is really not so much of an innovation, because when it comes to a situation in which the Security Council has determined that a threat to the peace exists, it is under an obligation to take whatever measures are necessary for the purpose of maintaining international peace and security.