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Mr. PASVOLSKY. Not necessarily, because these measures that are mentioned here do not have to be measures of enforcement.
Senator BURTON. They do not have to be. I get that point. Nevertheless, the Security Council can decide upon measures to give effect to its judgment and become in its own discretion the enforcement agency of a court decision?
Mr. PASVOLSKY. Article 94 would have to be governed by the powers conferred upon the Council in the other parts of the Charter; that is, the language there would have to be governed
by the powers which the Security Council possesses. If the Security Council possessed powers of imposing settlements, then this paragraph could be read in terms of enforcement action. But since it does not possess those powers, I think this paragraph must be read in terms of such powers as it does possess.
Senator BURTON. Is the Security Council the sheriff of the Court?
Mr. PASVOLSKY. I think the explanation of this paragraph is that when the Court has rendered a judgment and one of the parties refuses
accept it, then the dispute becomes political rather than legal as a political dispute that the matter is referred to the Security Council
. The Security Council then acts not as a judicial body, because the judicial body has already acted, but in its capacity as a political body in a dispute which is a political dispute or in a situation which is a political situation.
Senator BURTON. But it is contemplated, is it not, that if the International Court reaches a decision and a party fails to perform the obligations incumbent upon it under their judgment, the other party inay have recourse to the Security Council, and the Security Council then may by a vote of seven, including, I take it, in this kind of case all the permanent members, proceed to enforce that judgment?
Mr. PasvoLSKY. The Security Council may proceed to take action only within the scope of its powers, and the actual scope of its powers is such that the Council can act only after it makes certain determinations.
Senator BURTON. You mean at that point, if it is about to consider enforcing this judgment, there would have to be determined before it enforced it whether or not its failure to enforce it would constitute a threat to the peace, a breach of the peace, and so on?
Mr. PASVOLSKY. Surely. The Security Council would have to determine first of all, under chapter VI, whether or not a continuance of that situation would be likely to threaten the peace, and then it could take the measures which are indicated under chapter VI. Then, if the situation became aggravated, it would have to determine under article 39 whether that particular situation actually represented a threat to the peace. If it is so determined it could act under article 39; but its action under article 39, for the purpose of maintaining international peace and security, would be for that purpose primarily.
Senator BURTON. Then, I get this picture: that if the Court renders a decision, it is hoped that the parties will abide by that decision by reason of the significance of the Court?
Mr. PASVOLSKY. That is right.
Senator BURTON. If they do not, then the Court has no sheriff upon whom it can call for enforcement, but it has the Security Council to which it can go, and if the peace of the world is threatened, then the Security Council in its own discretion by a majority vote, including the major nations, will proceed to enforce that judgment
Mr. PASVOLSKY. The Council may proceed, I suppose, to call upon the country concerned to carry out the judgment, but only if the peace of the world is threatened, and if the Council has made a determination to that effect. It is the party, not the Court, that goes to the Council. It is the aggrieved party, the party which'is willing to abide by the determination of the Court when the other party is not willing so to abide. The Council is not a sheriff in the sense that the Council enforces: the Court's decision when the Court asks it to enforce it. The Council simply handles a political situation which arises out of the fact that the judgment of the Court is not being carried out by one of the parties.
Senator BURTON. If it works smoothly, the Security Council will be so convinced of the justice of the decision of the Court that they would feel perhaps that any failure to abide by it would be a threat to the peace of the world; wherefor they would proceed, by a vote of seven, to enforce it, and they could call upon the whole world to go with them?
Mr. PASVOLSKY. The Council would act if it thinks that peace is threatened.
The CHAIRMAN. If the party against whom the judgment were rendered contumaciously and stubbonly refused to abide by the decision, that government could, if the organization desired, be expelled under other clauses of the Charter ?
Mr. PASVOLSKY. That is right.
The CHAIRMAN. It could be expelled for its failure to observe its obligations under the Charter?
Mr. PASVOLSKY. That would be one of the sanctions. The CHAIRMAN. All right. Senator BROOKS. Mr. ChairmanThe CHAIRMAN. Senator Brooks. Senator BROOKS. In article 39 we read that [reading] : The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression
I find no definition in the Charter of the phrase "act of agression.” Will you tell us why that was avoided ?
Mr. PASVOLSKY. That, Senator, was done deliberately, because it was found impossible to find a comprehensive, all-inclusive definition, and it was felt that unless the definition of the word "aggression" were left to the Security Council itself, we would simply be setting up standards which would provide an easy escape for a would-be aggressor. The definition would be just a signal as to what should be avoided.
Senator BROOKS. That is a change, however, in the usual practice in drawing up an international agreement, is it not?
Mr. PASVOLSKY. Well, it is certainly customary in many cases to leave matters of that sort to the discretion of a body that will have to do the administering.
The CHAIRMAN. May I interject right there? I may say, Senator, that we faced this difficulty: If we undertook to tabulate all the kinds of aggression in a definition, we would probably exclude some situation which, judged by the circumstances of the case and the facts, would be acts of aggression and yet not described in the definition. That was
the primary consideration. We felt that "aggression" was a term of such common knowledge and so well understood that it would be wiser to leave it to the determination of each particular case on the facts and circumstances attending it at the time, rather than to undertake to anticipate all the possible situations which might make this definition too long and would exclude some of the possible situations.
Senator BROOKS. I may say to the chairman that in studying the Charter for the Inter-American League, made at Chapultepec on March 3 of this year, I found quite an elaborate definition of act of aggression." Cerainly the one where invasion of our country by another is listed. You felt that that was not necessary to put into this?
The CHAIRMAN. No. That certainly would be clear. Invasion would be so palpably an act of aggression that it would be unnecessary to define it.
Senator BROOKS. Then, it will be left to the Security Council itself, will it, Doctor, to determine what is an act of aggression ?
Mr. PASVOLSKY. Yes, Senator.
Senator WHITE. Mr. Chairman, I might observe here that that same language, or those same words, “act of aggression,” were in the Dumbarton Oaks proposal. The Conference simply adopted the language which came from the Washington Dumbarton Oaks Conference.
Am I right on that, Doctor? The CHAIRMAN. I am sorry, Senator; I did not catch that. Senator WHITE. I say, the same language, or the same words, "act of aggression, without further definition, were employed in the Dumbarton Oaks proposals that we ourselves sponsored.
The CHAIRMAN. That is right. The Senator is correct.
Senator VANDENBERG. May I add this thought? The point raised by Senator Brooks applies at a great many points in the Charter where details are not spelled out. I remember the many arguments we had on the subject in the various committees and commissions. If we had inserted all the definitions which various nations sought from time to time, we would have had a document a thousand pages long.
The analogy that was constantly argued at San Francisco was that we were writing a constitution, in effect, rather than a statute, in effect, and we had to confine ourselves to general terms.
The CHAIRMAN. That is correct.
Senator BARKLEY. Getting back to the matter of the decision of the Court which one of the parties would not obey or comply with. In that case, if the matter is referred to the Council, the Council is not limited in its method of enforcement or adjustment to anything that happened in the Court, but it would have the same power, within the scope of its authority, that it would have had if the case had originally been brought before the Council ?
Mr. PASVOLSKY. I think that is right, Senator.
Senator BARKLEY. So it would not be limited in any way in its jurisdiction to adjust it merely because it had gone to the Court and one of the parties had refused to abide by the decision?
Mr. PASVOLSKY. I think it would have to be considered as a case coming to the Council.
The CHAIRMAN. Permit me to interrupt the discussion to say to the committee that we are honored this morning by having present Sir Ramaswami Mudaliar, who was chairman of the delegation from India at the World Conference. I should like to present the gentleman.
(Sir Ramaswami Mudaliar, chairman of the delegation from India, rose and was greeted with applause.)
The CHAIRMAN. I will say that the delegate was very active and took a leading part in the deliberations of the Conference. We are very happy to have him present.
Sir RAMASWAMI MUDALIAR. Thank you, sir.
Senator HILL. Is this not true: That in all matters considered and acted upon by the Council, no matter what those matters may have received by some other organization or some branch of this organization, the treatment by the Security Council is always de novo, so to speak? In other words, it never acts on an appeal or passes judgment on what some other organization has done; it acts de novo on what has originated in the Council ?
Mr. PASVOLSKY. That is right.
Senator BURTON. This is a matter that I should like to make emphatic in the record. There has been a good deal said about the veto right of any one of the permanent members. As I understand the voting provisions in article 27, it has been provided in every case that there must be a majority of seven. Therefore, is it not true that, there is a complete veto right in any five of the Council that join together, Doctor, at any time on any matter that comes before the Council
Mr. PASVOLSKY. Yes, sir. May I read a paragraph from the statement to which I referred—the interpretative statement on votingwhich bears on this point? [Reading:]
It should also be remembered that under the Yalta formula the five major powers could not act by themselves, since even under the unanimity requirement any decisions of the Council would have to include the concurring votes of at least two of the nonpermanent members. In other words, it would be possible for five nonpermanent members as a group to exercise a "veto.” It is not to be assumed, however, that the permanent members, any more than nonpermanent members, would use their “veto" power wilfully to obstruct the operation of the Council.
Senator MILLIKIN. Mr. Chairman
Senator MILLIKIN. Mr. Pasvolsky, is the Charter intended to operate prospectively exclusively, or may it look into the past acts of aggression, for example, and consider their effect on the continuing state of peace in the world?
Mr. PASVOLSKY. Well, Senator, the Security Council will have to act on cases as they arise. Now, in examining those cases it will, of course, exainine all the circumstances that are pertinent. But there would have to be in the case of peaceful settlement, a situation the continuance of which may threaten the peace. In the case of enforcement, an actual threat to the peace or breach of the peace must exist.
Senator MILLIKIN. But if there has been a past aggression, and if that past aggression threatens the peace of the world, may the Council look into that and take action on it ? :
Mr. PASVOLSKY, Senator, I am not quite sure that I know how past aggression can threaten peace. There has to be current action which threatens peace.
Senator GEORGE. If it were a continuing circumstance or situation, then, of course, the Council would have jurisdiction; would it not?
Mr. PASVOLSKY. Of course, if it is a situation which continues to exist.
Senator MILLIKIN. I quite agree; but let us assume that during the course of this war country A has performed an act of aggression against country B. Let us assume that for the time being, at least, that act of aggression has been completed but that by its nature and consequences it does threaten the peace. Could the Security Council go into that?
Mr. PasvoLsky. Not necessarily. That would depend, Senator, do you not think, on whether or not the country which feels that it is the aggrieved country wishes to see something done about it?
Senator MILLIKIN. Yes.
Mr. PASVOLSKY. It is that situation that would be governing in the case.
Senator MILLIKIN. If the aggrieved country, under the case that I have mentioned, makes complaint to the Security Council, the Security Council would have the authority to consider the case, make recommendations on it, or take action on it, even though the act of aggression had occurred prior to the set-up of this Charter?
Mr. PASVOLSKY. Well, Senator, an act of aggression is not the sole criterion for action by the Council. The Council acts when it considers that the continuance of a situation threatens the peace, when it considers that a threat to the peace has arisen, when an act of aggression has occurred, that is when it is known who is the guilty party, or when any other breach of the peace occurs.
Senator MILLIKIN. I mentioned an act of aggression because, to my mind, that was the sharpest term I could use, to give the sharpest possible focus to it,
Let us assume that country A has committed an act of aggression against country B during this war. Country B complains. The Council could approach that from the viewpoint that the results of that aggression are a continuing threat to the peace, could it not?
Mr. PasvOLSKY. I think the Council in that case would have to consider whether or not the situation as it exists at the particular moment between the two countries gives rise to a condition which threatens the peace. What its origin was is another story. That is something the Council would have to consider. But what is significant for the Council is whether or not the peace is threatened or is likely to be threatened.
Senator MILLIKIN. If there were a threat to the peace, and if it grew out of a past transaction, the Council could consider it, make recommendations, and possibly take action; is that correct?
Mr. PASVOLSKY. Yes, sir. The Council could consider any threat to
Senator BARKLEY. Taking the confused situation in the world, which the San Francisco Conference could not consider or deal with