Изображения страниц

rated without change in Article 25, which reads as follows: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter". This is an important complement to the Security Council's responsibility for decisions relating to enforcement measures. It is a sharp departure from the League of Nations Covenant, inasmuch as each member of the League could determine for itself whether or not it would in any particular situation participate in sanctions.

It is to be noted that the members of the Organization agree to carry out the decisions of the Security Council "in accordance with the present Charter". Thus the precise extent of the obligation of members under Article 25 can be determined only by reference to other provisions of the Charter, particularly Chapters VI, VII, VIII and XII (Article 24, paragraph 2). Decisions of the Security Council take on a binding quality only as they relate to the prevention or suppression of breaches of the peace. With respect to the pacific settlement of disputes, the Council has only the power of recommendation. Moreover, with respect to enforcement measures, the character and amount of military assistance which members of the organization place at the disposal of the Council will be governed by the terms of special agreements which are provided for in Article 43.

Thus the obligation of Members of the Organization to carry out decisions of the Council is made the subject of precise definition, while the Council, for its part, is under obligation by Paragraph 2 of Article 24 to act, in discharging its duties "in accordance with the purposes and principles of the United Nations”. The framework of the purposes and principles within which the Security Council is to take its decisions is set forth in Chapter I. Among the Purposes it is stated that the adjustment or settlement of international disputes shall be brought about by peaceful means, and in conformity with the principles of justice and international law

". Moreover, it is set forth as one of the Principles 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”. It is, of course, a recognized principle of legal interpretation that a document is to be construed as a whole, and it was brought out in the debates at San Francisco that general provisions of the Charter must be read in conjunction with specific definitions of rights and obligations.


The foregoing description of the Security Council serves to emphasize its unique character. It is not a traditional alliance in that it is an integral part of a general international organization. It is hardly even "quasi-judicial” in its conciliatory function because of the latitude permitted for the play of political considerations. Its functions are mixed and, therefore, it cannot be characterized exclusively as a police body. Its novel character is matched only by the unprecedented conditions of the international relations of our time.


(Chapter VI)


Of all the technical committees which did the real work at the San Francisco Conference, one which attracted a minimum of public attention was the Committee on Peaceful Settlement which was responsible for Chapter VI of the Charter. It is conflict which is dramatic and demands attention, and there is by definition no conflict in peaceful settlement. The popular attention was focused on novelty, and machinery for peaceful settlement of disputes is no novelty. The committee was dealing with old issues, with matters which have been the subject of many international conferences in the last half-century, with problems on which there is a large library of weighty tomes and a large area of common agreement.

To Americans in particular, peaceful procedures for the settlement of disputes are thoroughly familiar. From the earliest days of the Republic, this country was a leading contributor to the development of such procedures; the Jay Treaty of 1794 and the Alabama Claims Arbitration of 1872—to name but two-are still landmarks in the development of techniques for pacific settlement of controversies between nations.

During the twentieth century the development of methods for peaceful settlement has progressed apace. Beginning with the Hague Conference of 1899 and reaching its highest mark to date in the rules and procedures of the League of Nations, this development has attained a stage of advancement at least as great as that in any field of international cooperation. During this period, the record of the United States in the actual settlement of disputes was not inferior to that of other states but this government was not willing, as other states had come to be willing, to accept in advance commitments to follow prescribed procedures of pacific settlement.

In general the development has followed two channels: arbitration or judicial settlement for disputes of a legal character, and conciliation for other types of differences. In both cases a majority of the states of the world community were obligated to submit their disputes to one procedure or the other.

The peaceful procedures delineated in the host of bilateral and multilateral treaties which have been signed in the past half-century have been extremely useful in settling a large number of minor controversies, but with few exceptions they proved inadequate to the task of coping with critical disputes. What then are the prospects for development under Chapter VI of the United Nations Charter!

The answer to that question may be found, not in this Chapter but in the following one, which grants the Security Council, power to coerce states when, refusing to follow peaceful procedures to ultimate settlement of disputes, they attempt to gain their ends by force or threat of force. This sanction for the Security Council's recommendations under Chapter VI gives new meaning to the old procedures for peaceful settlement which are embodied in this Chap

ter. If the security functions of the organization develop over the years, as they can with the cooperation of the nations and peoples of the world, emphasis on peaceful settlement will grow too, and do so, paradoxically as it may at first appear, precisely because the Security Council possesses under Chapter VII the power to take enforcement action.


Effective means for the peaceful settlement of disputes between nations obviously are essential to any international organization for the maintenance of peace and security. The Dumbarton Oaks provisions relating to peaceful settlement were based upon the lessons learned over centuries and more particularly upon those from the experience of the League of Nations.

The specific clauses are in Chapter VIII, Section A of the Dumbarton Oaks Proposals and Chapter VI of the Charter, but they must be read in the light of other provisions. First of all, the Members of the United Nations are obligated, under paragraphs 3 and 4 of Article 2, to "settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”, and “to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. Then, in a marked advance over the League Covenant, which gave Council and Assembly concurrent jurisdiction, the Security Council is given primary responsibility for the maintenance of international peace and security, the General Assembly's role in connection with disputes being definitely limited.

The authors of the Dumbarton Oaks Proposals did not intend to require that states should settle all their disputes. Encouragement and means were provided to that end in Paragraphs 2 and 3 of Chapter VIII, Section A ; but the only disputes which states were to be ogligated to settle were those whose continuance was likely to endanger peace. This obligation was preceded, in the Dumbarton Oaks Proposals, by a blanket power given to the Security Council to investigate disputes for the purpose of deciding whether their continuance might endanger peace. Any state was to have the right to bring such a dispute before the Security Council or before the General Assembly.

Various methods of settlement were stated for illustration, such as negotiation, mediation, conciliation, arbitration, or judicial settlement. States, however, were to be free to settle the dispute by means of their own choice, and the Security Council could, in this first stage, do no more than urge the parties to adopt some such means.

If the parties failed to reach a settlement by such means, they were to be obligated to refer the dispute to the Security Council which, however, could do no more than recommend methods or prcedures of adjustment. It was expected that the Council would refer justiciable disputes to the Court, and have the right to ask advisory opinions of the Court on legal questions before it.

Paragraph 7 of Chapter VIII, Section A provided that none of the above procedures should apply to matters which, under international law, are solely within the domestic jurisdiction of the state concerned. At San Francisco, the domestic jurisdiction provision was modified and it was transferred to the Chapter on Purposes and Principles where it now appears as Paragraph 7 of Article 2.


While the substance and essential framework of all the Dumbarton Oaks provisions for peaceful settlement were retained in the Charter as finally written at San Francisco, several important additions were made. Perhaps the most important, at least so far as the Security Council is concerned, is that now found in Article 37, by which the Security Council can recommend not only methods and procedures of peaceful settlement, but the actual terms of settlement as well. This was one of the amendments submitted early in the Conference by the Sponsoring Powers. The power to recommend terms of settlement, as distinct from procedures, comes into play when the parties to a dispute have failed to settle it by means of their own choice and have referred it to the Security Council.

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.

Amendments were offered at San Francisco, the principal one by the Mexican Delegation, to give the General Assembly equal authority with the Security Council in the peaceful settlement of disputes. These amendments were rejected because the technical committee on pacific settlement, like other committees, upheld the principle of separation of powers between the Security Council and the General Assembly which had been adopted at Dumbarton Oaks. This left with the Security Council that primary responsiiblity for the maintenance of peace and security which is fundamental to the whole structure of the United Nations, although the powers of the General Assembly to assist in the peaceful settlement of disputes and in the peaceful adjustment of situations which might give rise to disputes were broadened at San Francisco.

Other amendments were offered to distinguish between legal and political questions, and to require the submission of the former to judicial settlement. Most of these were answered by the decision in another committee not to give compulsory jurisdiction to the International Court of Justice.

A similar effort was made to restrict the freedom of the Security Council by proposing that it be limited it its decisions by reference to principles of international law or justice. These were opposed by the United States and other nations on the ground that due observance of justice and of international law was assured by Articles 1 and 2, as revised, and that the Security Council should not be hampered by detailed direction of its activities. The Conference agreed with this position.

A further pertinent amendment was made in the Committee on Regional Arrangements, which added resort to regional arrangements or agencies to the other methods of peaceful settlement specified in Article 33. “Enquiry” was also included as one of these methods.

Considerable attention was devoted to rearranging the sequence of the paragraphs on peaceful settlement in the interest of greater clarity. Under the new arrangement, the chapter logically begins with the provision (Article 33) that states shall settle their disputes by means of their own choosing, including the various procedures specified therein. This obligation is still restricted to disputes whose continuance might endanger peace, but provision is made in Article 38 for settling all types of disputes if the parties so request.

Article 34 authorizes the Security Council to investigate, not only disputes likely to endanger the peace, but also “any situation which might lead to international friction or give rise to a dispute.” Moreover, by the next article, any member of the United Nations may bring any such situation or dispute to the attention of the Security Council or the General Assembly. Thus, ample provision is made for getting a menacing dispute or situation before the proper organs. As a result of an amendment made by the Sponsoring Powers, a provision was added to Article 35 which would require any nonmember which brings a dispute before the Security Council or the General Assembly to accept the obligations of pacific settlement contained in the Charter. After a dispute is brought before the Security Council, the decision to discuss and consider it is to be taken by a vote of any seven members of the Security Council, but the rule requiring a unanimous vote of the permanent members of the Security Council plus at least two other members, will operate in relation to any decision to make an investigation of the matter, and to subsequent decisions under this Chapter (subject to the provision that a party to a dispute shall not vote).

At any stage, the Security Council may recommend to the parties appropriate procedures or methods of adjustment. Two changes in the Dumbarton Oaks text occur here. The first change exhorts the Security Council to take into consideration the procedures which have already been adopted by the states themselves. The second change makes it clear that, while legal disputes should normally be referred to the Court, it is only the parties to the dispute which can so refer them; the Security Council can only recommend that this be done.

Another, and important, stage is reached with Article 37, under which, as above stated, the Security Council may take up a dispute if the parties have failed to reach a settlement by their own means and if the Security Council "deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security". The Council may now recommend either procedures or actual terms of settlement, but it does not have the power to compel the parties to accept these terms. It has power to enforce its decisions only after it has determined under the provisions of Chapter VII that a threat to the peace, a breach of the peace or an act of aggression exists. These provisions are analyzed in the following chapter of this Report.

SIGNIFICANCE OF THE CHAPTER Chapter VI is the core of the provisions found in the Charter for pacific settlement of disputes but, as has been noted, there are related provisions in many other parts of the document. Taken as a whole, it is a comprehensive system. Every assistance is provided to the

« ПредыдущаяПродолжить »