THE CHARTER OF THE UNITED NATIONS TUESDAY, JULY 10, 1945 UNITED STATES SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, D. C. The committee met, pursuant to adjournment, at 10 a. m., in the caucus room, Senate Office Building, Senator Tom Connally, chairman. Present: Senators Connally (chairman), George, Wagner, Thomas of Utah, Murray, Green, Barkley, Guffey, Tunnell, Hatch, Hill, Lucas, Johnson of California, Capper, La Follette, Vandenberg, White, Shipstead, Austin, Bridges, and Wiley. Also present: Numerous other Senators not members of the committee. The CHAIRMAN. Let the committee come to order. Dr. Pasvolsky, you may resume your statement. STATEMENT BY LEO PASVOLSKY, SPECIAL ASSISTANT TO THE SECRETARY OF STATE FOR INTERNATIONAL ORGANIZATION AND SECURITY AFFAIRS-Resumed Senator AUSTIN. Mr. Chairman- The CHAIRMAN. Senator Austin, of Vermont, desires to propound an interrogatory. Senator AUSTIN. Briefly, the question is related to what we were discussing when we adjourned. I should like to know whether the record shows that the text finally settled on for article 37 leaves the matter in this situation: That the power of the Security Council to act promptly whenever hostilities commence is undisturbed and that it is not necessary for the Security Council under the new wording to delay the application of armed force to the situation while it considers the merits of the issue. Mr. PASVOLSKY. Senator, the record certainly shows that your interpretation is entirely correct. I should like to read, Mr. Chairman, a paragraph from the report of the rapporteur of the committee at the Conference which dealt with this matter. It is an interpretation unanimously approved by the committee. [Reading:] In using the word "recommendations" in section B that is the section relating to enforcement measures— as already found in paragraph 5, section A 75608-45- -19 281 that is the section relating to peaceful settlement— the committee has intended to show that the action of the Council so far as it relates to the peaceful settlement of a dispute or to situations giving rise to a threat of war, a breach of the peace, or aggression, should be considered as governed by the provisions contained in section A That is, power to make recommendations and not to impose terms. Senator AUSTIN. And at no time will it involve the application of armed force? Mr. PASVOLSKY. No. Under such an hypothesis the report continues-and I should like to call attention particularly to this the Council would in reality pursue simultaneously two distinct actions, one having for its object the settlement of the dispute or the difficulty, and the other, the enforcement or provisional measures, each of which is governed by an appropriate section in chapter VIII. Now, the effect of that, of course, is that the Council is under an obligation to move immediately it determines that a threat to the peace or a breach of the peace exists. As you properly pointed out, Senator, the Council does not have to wait until there is a determination of who is right and who is wrong. The problem is to stop the fighting or to remove the threat to the peace as soon as possible. Senator AUSTIN. In other words, you have not, by the change of language, changed this primary duty of the Security Council to maintain security from war? Mr. PASVOLSKY. In no way. Senator BURTON. Before leaving these articles, there are a few questions I should like to ask with regard to them. First, dealing with article 37, it is clear, is it not, that under all of the articles on the pacific settlement of disputes, including article 37, the parties to the dispute may not participate? Mr. PASVOLSKY. That is correct. Senator BURTON. Therefore, on the issue of determining whether the continuance of a dispute is likely to endanger peace and security and the issue of recommending terms of settlement, the decision would be made by the Security Council without the participation of parties in interest? Mr. PASVOLSKY. Yes, sir. Senator BURTON. Therefore, the veto power is distinctly limited by the fact that it excludes from the veto the parties in interest? Mr. PASVOLSKY. That is right. Senator BURTON. Therefore, we do have under article 37 what we otherwise would not have, a disinterested international body of high standing in a position to recommend actual terms of settlement of a matter of great import which actually endangered the maintenance of peace and stability in the world? Mr. PASVOLSKY. Yes, sir. Senator BURTON. Under those circumstances, would you explain this result? That would mean that one of the permanent members would not be able to vote on a recommendation of terms of settlement for itself? Mr. PASVOLSKY. That is right. Senator BURTON. But on terms of settlement affecting other people, it would be able to vote and to veto? Mr. PASVOLSKY. Yes, sir. Senator BURTON. Well, if it is deprived of the right to veto in terms of settlement relating to itself, why is it so important to have the right to veto terms of settlement relating to somebody else? Mr. PASVOLSKY. Senator, the statement which was read into the record yesterday by Secretary Stettinius on the interpretation of the voting procedure goes into this subject in considerable detail. In that statement the justification for this action is that when a permanent member is a party to a dispute, then it has already put itself in a position in which it might be disciplined by the Organization. When it is not a party to a dispute, then the action taken by the Security Council may lead to a chain of measures in which it would have to participate, and since that claim may end up with the use of force, it was thought that the countries which would have the primary responsibility for the action to be taken in the maintenance of international peace and security should be in a position to concur or not concur in the steps which might lead to that action. Senator BURTON. Well, it was the very distinction that Senator Austin made that impressed upon me the fact that those two steps under 37 and under 39 were separate, and, therefore, although what you say appeals to me, that a party in interest should not participate in recommending terms of settlement, nevertheless if article 37, which does not deal with enforcement but does deal with recommended terms of settlement by peaceful means under article 37, it would appeal to me that there would be ample meeting of the needs of the situation if that were decided by a majority vote rather than by veto power upon any individual over that particular matter, because it does not necessarily lead to the use of force, but only leads to the use of force in the sense it comes under article 39, which is the veto power, and I think it would add great strength to the chances for peaceful settlement if we had an opportunity to determine the terms of settlement by a majority vote. Mr. PASVOLSKY. There is another article which is rather important in this connection. After all, the purpose of trying to bring about peaceful settlement of disputes or situations is to create a situation in which it would not be necessary to apply force. Therefore, you will want the process of recommendation to be as weighty as possible and as effective as possible. Now, it is certainly true that a recommendation on which the principal powers are united will carry much more weight than a recommendation on which they are divided. This is true, for one thing, because the countries to which a recommendation is made will certainly argue that if the principal powers could not agree on a recommendation, there is less chance of their agreeing on action, and, therefore, there is no need to pay any attention to what is being said. There are also a good many other arguments in the same direction. The CHAIRMAN. May I inject right here, Senator, in connection with your question? You meet the question of their interest when you exclude them from voting on their own quarrel, of course, which is proper. There was another highly important consideration, that if we started out with a divided Security Council, even though there was a peaceful settlement reached, it might encourage each one of the disputants to quarrel further." One of them could thing, "Well, there are two fellows on the Council who are for me"; and instead of composing the difference, it would increase feeling and agitation and might result in a situation much worse than if the Council were to say, "No, we will not inter vene. That was one of the considerations that operated on my mind and, I think, on the minds of a great many others; that it would be fatal to start out with divided opinion right at the beginning, since that divided opinion might increase in vigor and feeling. Each side would think that it had some support on the Security Council and the dispute would broaden into what might develop into a very serious difficulty. Since unanimity is going to be required in the final analysis on the use of force, we had better maintain that same principle from the beginning of the dispute. Senator BURTON. The thing I wanted to emphasize and get clearly in mind as to how far article 37 went was this: I regard article 37 as the high point of the means of reaching possible disposal of disputes without resorting to force. This is the last recourse before force, as I see it, and here we have what we have never had before, an opportunity for large and small bodies representing the world to meet as a forum in which there may be presented the merits of the issue without the disputants taking part in it, and you can have a vote upon what are the recommended terms of settlement. I think that that is the greatest ultimate chance for possible settlement that there is in the document. Before a resort to force, as I see it, you have the Security Council voting. If the dispute is between two of the permanent members, those two members are excluded from voting or veto, and, therefore, you have the judgment of the world. May I press the interpretation a little further? I think Senator Austin touched on this, but I was not quite certain of Dr. Pasvolsky's answer. Article 37, paragraph 2, states [reading]: If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security * * I should like to understand whether international peace and security is endangered automatically when two nations have a controversy, or must it involve the peace of the world? Mr. PASVOLSKY. Senator, the question of the definition of danger to international peace and security or threat to international peace and security necessarily has to be left to the determination of the Council. Senator BURTON. I want to be clear that it is not sufficient to meet the requirements here that there merely be two nations having a dispute and that therefore there is an international dispute and danger of breaking international peace between the two of them. Mr. PASVOLSKY. You see, the purpose of this "if" clause is that the Security Council has to determine that a particular dispute in fact is of such a nature that its continuance would be likely to endanger the maintenance of international peace and security. Now, "international peace and security," I should say, is understood broadly here. A dispute may involve only two nations at the start, and if the Security Council thinks that the dispute will grow and involve other nations, it will want to act. The Security Council, however, has to be the judge as to whether the dispute is of such a nature that it should intervene and take action. It will also have to decide whether or not its intervention might make the situation worse. Senator BURTON. I appreciate that broader definition. That is decided by the vote we have just discussed under article 37, without the parties in dispute participating? Mr. PASVOLSKY. That is right. Senator BURTON. Dropping to article 39, we have a different set of words [reading]: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression * Are those the same in their effect as the words above maintenance of international peace and security or do they mean something different? Mr. PASVOLSKY. The difference here, Senator, is that article 39 envisages a situation which has become so aggravated that it is no longer a question of whether or not it may result in a threat to the peace, but an actual threat to the peace exists. Senator BURTON. Therefore, there may actually be a somewhat different test under article 39 than what was made under article 37? Mr. PASVOLSKY. Oh, yes. Senator BURTON. Of course, there is a difference in the vote of the parties upon the issue. I take it, when you come under article 39 and determine this threat, the parties to the dispute should participate in the vote? Mr. PASVOLSKY. That is right. Senator BURTON. And have veto power? Mr. PASVOLSKY. That is right. Senator BURTON. Therefore, you have both a difference in the issue and a difference in the voting rights of the parties? Mr. PASVOLSKY. That is right. Senator BURTON. Referring again to the point Senator Austin made, as I understood you, Doctor, you said that article 39 does not provide authority for the enforcement of the terms of settlement under article 37. Mr. PASVOLSKY. That is right. Senator BURTON. Turning then, for a moment, to article 94, we have reference to the International Court in paragraph 2, and on page 224 of our compilation we read as follows: If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. We there have a different relationship to the judgment of the Court than we had under article 39, in relation to the recommendation of the Council, have we not? |