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Now, there is a question which is involved here which is rather important, and that is whether or not this converts the Council into a court. The whole tenor of the Charter is that as far as possible all Jegal disputes, that is all justiciable disputes, all disputes which involve situations that can be settled by a court, should be settled by a court. It is only where you have a dispute about such a matter, or of such a character, that the court cannot take jurisdiction because it does not fall within its compass that the Security Council should be the agency in the world to which nations can turn if they fail to achieve the settlement of a dispute by means of their own choice.
The CHAIRMAN. May I interject right there and make an observation, Senator? I do not quite agree with either one of you 100 percent. According to my view of article 37— If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security it shall decide whether to take action under article 36 or to recommend such terms of settlement as it may consider appropriateDr. Pasvolsky I think is correct in his statement that that is simply a part of its general authority to preserve the peace, and that by suggesting a settlement which is appropriate and which the parties accept, it has performed a very high function. I do not agree, however, that it adds anything to the jurisdiction of the Council under chapter 7. If the parties do not accept the recommendation, they have got to go under chapter 7 with no new jurisdiction but just what chapter 7 provides. I do not agree that there is anything in chapter 7 that would give the Security Council authority to say, "Well, you have got to change this boundary here and give this piece of territory to some other country,” because there is nothing in chapter 7 that authorizes that sort of action. I think the recommendation is all right and perfectly sound and perfectly wise if they accept it, but if they do not accept it, it is just as though the proposition was never made and the recommendation never made. They are then remitted to chapter 7 with the enforcement provision without any other added jurisdiction and strictly within the powers conferred by chapter 7. That is my own individual view.
Senator AUSTIN. I think that is very important. Your views about the matter count very heavily, and they are a very important part of this record, and they give me a great deal of comfort.
The CHAIRMAN. I do not speak by any great legal experience or anything like that, but I was on this Commission when we did consider these very matters, and my construction—and others, I think, toowas simply an effort to get the parties together under peaceful settlement. You have already urged them to settle the dispute by arbitration, diplomacy, conciliations, and judicial settlement, and if they do not do it, and when they do not do it, all you can do is to take them before the Security Council. There is no compulsion for arbitration except as suggested by Senator Millikin except that the Council could pick out arbitration and suggest that the parties use arbitration, but if they do not use arbitration they are relegated to chapter 7 under its own jurisdiction and clauses, and this development does not add to that jurisdiction. It does not say they shall take action; it says "recommend" and "recommend” does not mean to enter judgment or to compel action on the part of the disputants.
Senator Austin. May I ask a further question?
The CHAIRMAN. If you do not ask too many, I will try to answer them.
Senator AUSTIN. I would like to get your views about this: Assume that the dispute which the parties themselves could not settle involved the location of the boundary line, and thereby the Security Council believing and having found that this threatens the peace of the world and took jurisdiction and said, “On the merits this country should give us and deed to the other country certain territory” and fixes the boundary line at this or that place and says, “We therefore recommend that one country cede to the other certain territory.” That is nothing but a recommendation, and they do not carry it out; and the disturbance still threatens the international peace and security. What I would like to have this record show is that this provision involves no more than that the powers of the Security Council under chapter 7 go only to the extent of preventing the issue getting to war and compel those parties to keep the peace. In spite of the failure to carry out the recommendation, aīl the Security Council can do is to prevent war. Is that your understanding?
The CHAIRMAN. That is a pretty broad question. I have not studied these things recently with that particular thing in mind, but I have already made the general statement that I do not think that the suggestion that the Council recommend such terms of settlement as they consider appropriate in anywise increases the Council's jurisdiction under chapter VII. It is just as though no recommendation was ever made. When the Council considers, under chapter VII, the boundary dispute we were discussing a moment ago, my tentative view is—and I think it will be confirmed—that the Security Council would have no authority to enter an order that “You have got to establish a new line here and hand this territory over to some other nation."
Senator AUSTIN. That is not my question.
The CHAIRMAN. I know what your question is. The Council can then take measures to prevent armed conflict, and they have that power under chapter VII.
Senator AUSTIN. Can they go any further than that? Having recommended the cession of certain territory in order to establish a boundary line, I would like to ask whether anybody in this Conference having to do with this treaty regarded this reference to chapter VII, that is the application of the enforcement provision of chapter VII, to have anything to do with the recommendation beyond the point of preventing the use of armed force between them?
The CHAIRMAN. That is my view.
Senator Austin. That is what I would like to have Dr. Pasvolsky say. I would be glad if he can say that.
Mr. PASVOLSKY. Senator, as I read these provisions of chapter VI, chapter VI relates to the various things that the Security Council can do by way of recommendation, without the power to enforce, under a determination by it that the situation with which it is dealing if allowed to continue may threaten peace but does not yet threaten peace. When the Council gets into chapter VII as a source of its power, where it has power to act, it has to make another determination, and that makes article 39 one of the most important articles in the whole Charter.
Senator AUSTIN. Article 39 reads:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with articles 41 and 42, to maintain or resiore international peace and security.
Mr. PASVOLSKY. When the Council begins to make recommendations under article 39, that is another story. That is another kind of a recommendation, because that is a recommendation which occurs at a stage at which the Council has determined that there exists an actual threat to the peace or a breach of the peace. Even here, however, it is very important to bear in mind that in chapter V which relates to the powers and responsibilities of the Security Council it was stated that the Security Council shall in the performance of its duties be guided by and act in accordance with the Purposes and Principles of the Organization.
In the article on Purposes and Principles, article 2, it is stated that, The Organization and its Members, in pursuit of the Purposes stated in article 1, shall act in accordance with the following Principlesthat is, both the Organization and its Members.
And paragraph 4 of the Principles states that all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
When it comes to the sort of a situation which you have described where there is a threat to the peace—let us say where there is an argument about a boundary and the Council makes a recommendation that by peaceful methods and by peaceful adjustment the parties to that controversy should adjust their boundary—that is one thing. When it comes to putting that recommendation into effect under the powers inherent in chapter VII, then the Security Council has to act in accordance with the Purposes and Principles of the Organization. It is not free, therefore, to act in any way that it chooses; it has to act in accordance with those Purposes and Principles, and that was clearly understood.
Therefore, as Senator Connally says, what the Council does under chapter VI in no way affects its powers under chapter VII, because chapter VII deals with a situation based on a different set of facts from the set of facts on which the powers of the Security Council are based under chapter VI. That is, there is the determination to which I have referred several times as to whether or not an actual threat to the peace exists.
Senator Austin. In effect I gather from what you say that this provision or application of chapter VII that is referred to in the report by the Secretary of State to the President on page 84 does not apply to this situation and ought not to be there. This provision reads:
If, however, their failure to do so results in a threat to the peace, then the enforcement provisions of chapter VII come into play.
Mr. PASVOLSKY. But that is absolutely correct. If their failure to accept this recommendation results in a situation which is determined by the Security Council to constitute a threat to the peace, it is no longer a situation the continuance of which may threaten the peace, but it is a situation which itself represents a threat to the peace. When the Security Council deterinines that, then irrespective of what happened, irrespective of whether it was a failure to accept its recommendation or any other act that led to the creation of that situation, the powers of the Security Council under chapter VII as they relate to the enforcement provisions come into play.
The CHAIRMAN. Would it bother you, Senator Austin, if we pause for a moment to determine whether to recess or not? I will wait until you get through if you would rather.
Senator AUSTIN. I would rather you waited until I finish. The thought is in my mind and I would like to finish it.
The CHAIRMAN. All right.
Senator AUSTIN. In this report to the President, action under chapter VII is coupled up with the action under chapter VI, isn't it? Do you have that before you?
Mr. PASVOLSKY. That is on page 84, paragraph 2.
Senator Austin. They are coupled there. You say they ought not to be coupled, that they are not related to each other. Can you say, then, that the use of military authority which is granted by chapter VII, is not intended by this treaty to be used to enforce in this indirect way, that is spoken of here on page 84, the recommendation of the Security Council, but is used only for the purpose of preventing hostilities? Mr. Pasvolsky. I would say that; certainly.
Senator AUSTIN. All right. Let us have the record rest there. That is where I thought it ought to be left. It is not my disposition in asking these questions to develop the fact that this expansion of the authority of the Security Council was intended to combine in the Security Council both the powers of judgment and the powers of execution of the judgment. I think that would be a grave mistake and a step backward instead of forward.
The CHAIRMAN. Senator Austin, with all due respect to the Secretary and to you, the report to the President could in no wise control the text of the Charter. If there is any conflict, the text of the Charter would govern.
Senator AUSTIN. I think this clears it up in good shape,
The CHAIRMAN. What is the disposition of the committee about recessing now?
Senator VANDENBERG. I move we recess.
The CHAIRMAN. If we recess now, what is the will of the committee? I would like to go on at 10 o'clock tomorrow morning. Is there any objection to proceeding at 10 in the morning instead of 10:30?
The CHAIRMAN. I hear no objection, and we will recess until 10 o'clock.
(Whereupon, at 5:10 p. m., the committee adjourned until tomorrow, Tuesday, July 10, 1945, at 10 a. m.)