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cerned, the agreement would be subject to ratification by its constitutional processes. So a country would know in advance how much it could be expected to supply on the call of the Council.
Senator Lucas. In other words, that is a matter to be worked out by the members belonging to the pact; and what each nation furnished in the way of military forces is a matter for agreement between that nation and the Security Council, and then ultimately that must be returned to the particular nation for ratification by its own government?
Mr. PASVOLSKY. Quite right. Now, as the Charter stands, once these agreements are concluded, the Council has a right to call upon the members to supply the facilities and assistance which each country has undertaken to provide. As far as actual armed forces are concerned any nation which is not a member of the Security Council can, under article 44, request that the question of the employment of its contingents of armed forces be decided by the Council in a special meeting, in which its representative would participate and take part in the proceedings.
Senator Lucas. That is true only if the member so desires ?
Senator Lucas. In other words, I presume if a government was dissatisfied with respect to what had been requested by the Security Council in calling for military force, that government could call for a special hearing under those circumstances and get it!
Mr. PASVOLSKY. That is right.
Senator BURTON. Before leaving chapter VII, I did want to emphasize two points. The first is article 37, of chapter VI. I think that is the high point in pacific mechanism. That is where the Security Council has the last clear chance to offer terms of settlement.
Mr. PASVOLSKY. Yes.
Senator BURTON. The high point of enforcement, I take it, is chapter VII, particularly article 42, where the Security Council takes steps to resort to force. When they resort to that procedure under article 42, as I understand it, they then act by a majority vote of seven of the Security Council, in which the five permanent members must participate. Therefore, the United States would have to join in that vote?
Mr. PASVOLSKY. That is right, Senator. Senator BURTON. The other four members of the Security Council will be forthwith bound to go right along with them, because they were participating in those decisions!
Mr. PASVOLSKY. That is right. Senator BURTON. Those outside the Security Council could be invited in to participate in the decisions, but they also would be bound by the decisions of the Security Council as to whether or not to use their armed forces ?
Mr. PASVOLSKY. The decision of the Security Council to use force in a particular case stands after the Council has taken a vote. But whether or not the forces of a particular Member state which is not a member of the Council should be employed awaits a second vote of the Council on that particular question, and with the participation of that particular Member of the Organization.
Senator BURTON. As I understand it, that outside member, the Member outside the Security Council, has an opportunity as an in
dividual to determine in the original agreement what its contributions should be?
Mr. PASVOLSKY. Quite right.
Senator BURTON. Having entered into that agreement, what its rights are, under article 44, are merely to participate in the decisions, not to control the decisions, of the Security Council. If the Security Council decides that they ought to go in, they go in?
Mr. PASVOLSKY. That is right. If the Security Council decides that they ought to go in, they go in.
Senator BURTON. The thing I would like to emphasize more than anything else is this: As I understand it, this demonstration of the military force of the United Nations has the same effect on an aggressor națion as a squad of policemen on a street corner would have, because people do not commit assault and battery in the presence of a squad of policemen. In order to maintain peace, this is the effective measure which we take. In order to maintain unity of the United Nations after this war, to have them stick together and provide and maintain military superiority, we now have and we rely upon an enforcement measure to retain the peace.
Mr. PASVOLSKY. Yes.
Senator Lucas. With respect to a small nation that has a special hearing, after the special hearing is held, the Security Council makes a decision as to whether it will go along with the request or the point made by the small nation, and if it refuses to go along, then the small nation nevertheless is bound to go along with the decision of the Security Council ?
Mr. PASVOLSKY. That is right; but that nation will have participated in the decision.
The CHAIRMAN. Bear in mind that it is not in every case that the Council would want to call out all the troops of all the countries. For that reason it would be possible for a nation to appear before the Council and say, “I do not think in this particular case you ought to call out my troops; you ought to call out some troops over in that area.”
That is one consideration that moved us in connection with that particular provision; it will not be necessary in every case to call out the entire quotas of all countries. Power is given to the Securit Council here to call on all or only a part of the troops available, if it finds it is neceessary or desirable.
Senator LA FOLLETTE. Mr. Chairman, may I ask a question ?
Senator LA FOLLETTE. What does “to participate in the decisions of the Security Council” mean so far as a non-member of the Council is concerned, under article 44?
Mr. PASVOLSKY. It would have the right to vote. There would be 12 votes cast in that particular case, but the decision would still be governed by 7.
Senator MILLIKIN. Mr. Chairman
Senator MILLIKIN. Doctor, I should like to ask you, with respect to the special agreements provided for in article 43, if the United States reserved to itself the right to determine in advance, in each instance whether it will join in measures of force, to what extent will that violate the terms of this agreement?
Mr. PASVOLSKY. I do not quite understand, Senator. The article says (reading]:
All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities * * That means within the limits set out in the special agreement.
Senator MILLIKIN. Would your answer, therefore, be that if the United States reserved to itself-let us say reserved to Congress the right to decide in each instance, in advance, whether or not it will contribute force to an expedition of force, that would violate the Charter!
Mr. PASVOLSKY. Senator, the purpose of this whole provision is to make it possible for the Security Council to know in advance what force it could rely upon in the performance of its duties.
Senator MILLIKIN. Let me put it to you in another way. The article calls for special agreements. Let us suppose that the United States withheld to itself the right to determine in advance whether or not it will contribute men or material by the mechanism of special agreements. Would that violate the Charter?
Mr. PASVOLSKY. The United States under the terms of the agreement would indicate what forces, what facilities, and what assistance it would be prepared to make available to the Security Council. Now, if the Security Council were not in a position to know that it could call upon any part of the forces that are pledged there or the assistance and facilities that are pledged there, when necessary, then obviously the purpose of the whole provision would be defeated. It is the purpose of this provision, by means of these agreements, to make it possible for the Council to know in advance what forces it would have at its disposal when necessary and, therefore, to make plans accordingly for the performance of its duties.
Senator MILLIKIN. It has been suggested that there should be a reservation to the effect that I have mentioned; to wit, that the United States, perhaps through the President or through Congress, should retain to itself the right to judge each instance where force is to be employed and to judge in each instance in advance whether or not to contribute toward that force. So would your answer be that such a reservation would be in violation of this agreement !
Mr. PasvoLsky. The United States as a permanent member of the Security Council, has the power and the right to judge when force should be employed.
Senator Millikin. That raises the question as to who shall exercise decision. Suppose a reservation put the decision in the Congress. Would that violate the agreement ?
Mr. PASVOLSKY. That is a domestic question which I am afraid I cannot answer.
Senator MILLIKIN. It is a very important question. I think we should have it answered.
Mr. PASVOLSKY. I do not see how the article can be interpreted in any other way than as meaning that the forces shall be available on the call of the Security Council.
Senator MILLIKIN. From which it follows that if the United States took the position, by reservation or otherwise, that it retains to itself the right to decide when it shall contribute forces or when it shall
contribute material, that would violate the agreement; is that right?
Mr. PASVOLSKY. Í should think that that would result in a very different kind of agreement.
Senator HATCH. I might suggest that to modify the agreement there will have to be agreement by the other nations.
Mr. PasvOLSKY. It would be a different kind of agreement than is envisaged in article 43.
Senator MILLIKIN. Is that the view of the chairman? The CHAIRMAN. My view is that it would, at least, violate the spirit of the Charter. We agree in the Charter to do certain things. If we are to say, "No, we are not going to recognize the authority of the Security Council; we are going to judge each individual case, after the Security Council' has voted, and pass upon it before we agree to the use of our armed forces,” I do not accept that doctrine.
Senator WHITE. Would not what the Senator from Colorado suggests, as to whether it is a breach or is not a breach of the Charter, be in violation of the spirit of the Charter and completely destroy the master agreement which we are supposed to enter with the Security Council as to our contribution to the undertaking?
The CHAIRMAN. I thank the Senator from Maine. I used that word a moment ago. I said it would, in my opinion, violate the spirit of the Charter, because if every country who is a party to the Charter did that, we would be almost right where we are now, dependent upon the individual action of each nation in case a dispute arose. That is what happened in the last war and in the present war. The result was that we got into war and are still at war. It seems to me that if we are going to join this organization, we ought to live up to our obligations and responsibilities.
As a matter of fact, as was pointed out by Dr. Pasvolsky, we will be on the Security Council, and if we do not want to use our troops or anybody else's troops, all we have to do is to say no. But if the Security Council, with our vote, decides to use force in a certain situation, I do not see how we can in good faith refuse to contribute our quota and go along with the enterprise.
Senator Millikin. I thank you for your answer. I should like also to have the comment of the senior Senator from Michigan.
Senator VANDENBERG. It seems to me that the question raised by the Senator from Colorado is primarily one to be debated on the floor of the Senate, but I realize that he is quite within his rights to raise it in connection with an interpretation of the Charter. I want to make my own position very clear.
I think that if we were to require the consent of Congress to every use of our armed forces, it would not only violate the spirit of the Charter, but it would violate the spirit of the Constitution of the United States, because under the Constitution the President has certain rights to use our armed forces in the national defense without consulting Congress. It has been done 72 times within the last 150 years. It is just as much a part of the Constitution as is the congressional right to declare war.
It seems to me that our problem in finally defining the authority of our voting delegate upon this question is the simple problem of translating into language the constitutional practice of 150 years, which allows the President to use our armed forces externally for purposes of national defense, but ultimately requires, when the situation reaches the point of war, that the Congress is the only power and authority that can determine it.
That may be a no man's land, but it has been a no man's land for 150 years. But very clearly for 150 years the President has had the right to use our armed forces in a preliminary way for the national defense and in the interest of preventing war. That is a complete analogy to the intended use of preliminary force by the Security Council.
I beg your pardon for this explosion, but I feel very deeply on the subject, because I totally sympathize with those who insist that in the final analysis the control of our entry into war shall remain in the Congress; on the other hand, I totally sympathize with the purpose of the Charter to use force to prevent situations where a declaration of war is necessary. I think there is a sharp distinction between the two.
Senator MILLIKIN. I thank the Senator very much for the observations.
I am not debating any of these matters, Mr. Chairman; I am simply asking questions.
The CHAIRMAN. You are asking them very well.
Senator MILLIKIN. Thank you very much, Mr. Chairman. I would be imposing on the unfailing courtesy of the committee and the chairman were I to try to turn this into a forum of debate.
Dr. Pasvolsky, is it not corelative to what you have said and what the chairman has said and what the distinguished senior Senator from Michigan has said that the time to meet that issue is not when the implementing statutes come up, but is to meet it head-on, if it is to be met, in connection with ratification of the Charter?
The CHAIRMAN. That is a question that I think Dr. Pasvolsky probably would not care to answer.
Senator MILLIKIN. Mr. Chairman, may I ask you that question? The thought occurs to me that if we reserve our views on this until an implementing statute comes up, then we are debating what might be a violation of the Charter that we have already entered into.
Therefore, I am simply trying to find out what is the orderly procedure and the proper procedure for those who wish to raise the question whether it should be done in connection with ratification of the Charter or whether, in good faith, it should wait until the implementing statute comes up.
The CHAIRMAN. If you insist on an answer, I will say, of course, you have a perfect right to offer to the Charter a reservation which would, according to my view, nullify in effect the Charter so far as enforcement provisions are concerned. But I think the proper time would be when we bring in the statute. You would have a perfect right then to say that these troops shall never be called unless the United States consents in the particular instance. I think it would be a very foolish policy to adopt, but you would have the right and power to do it. The statute would have to pass both Houses of Congress, whereas if you offered a reservation here it would be confined purely and simply to the action of the Senate.
Senator MILLIKIN. It occurs to me, under the answers that have been given, if we ratify the Charter and then start to fix up the enab