464. ESTABLISHMENT OF A SUBCOMMITTEE OF THE UNITED NATIONS SECURITY COUNCIL TO RECEIVE INFORMATION ON THE LAO GOVERNMENT'S CHARGES OF NORTH VIETNAMESE AGGRESSION: Resolution Adopted by the U.N. Security Council, September 7, 19591

The Security Council

Decides to appoint a subcommittee consisting of Argentina, Italy, Japan and Tunisia, and instructs this subcommittee to examine the statements made before the Security Council concerning Laos, to receive further statements and documents and to conduct such inquiries as it may determine necessary and to report to the Security Council as soon as possible.2

465. THE UNITED STATES POSITION ON THE LEGAL STATUS OF THE UNITED NATIONS SECURITY COUNCIL RESOLUTION ON LAOS: Statement Made by the U.S. Representative (Lodge) in the U.N. Security Council, September 7, 1959 la

Mr. President, let me first express gratification that this resolution 2a has been adopted and by such a very large majority. There is no question whatever that it has been legally adopted and that there is absolutely no flaw at all in its status.

I am confident that the four nations mentioned in the resolution will immediately address themselves to the work prescribed in the resolution. I am sure that this will have an excellent effect on opinion throughout the world and will receive and merit the applause of all those who value the rights of small nations.

Now, Mr. President, Ambassador Sobolev is a man of forensic talent and experience who can be counted upon to make the strongest possible argument for any cause that he espouses. The fact that he was not able to make a better argument is therefore no reflection on him, but it does show that the cause which he was espousing had him on very weak ground indeed.3 Of the cases which he cited, with the possible exception of one, not one was analogous to the issue which we confronted here tonight. In fact he even cited a case on page 190 of the Repertoire, which was a case providing for a com

'U.N. doc. S/4214. This resolution, submitted by the representatives of France, the United Kingdom, and the United States, was adopted by a vote of 10 to 1 (the U.S.S.R.). The resolution was considered carried, having to do with procedure rather than substance.

See post, doc. 471.

1a U.S.-U.N. press release 3214 (text as printed in the Department of State Bulletin, Sept. 28, 1959, pp. 457-459).

2 Supra.

For the Soviet representative's statement, see U.N. doc. S/PV.848.

4 Repertoire of the Practice of the Security Council, 1946–1951 (U.N. publication 1954.VII.1).

mission to supervise the implementation of Security Council decisions. Of course you cannot imagine anything more substantive than supervising the implementation of Security Council decisions. That is at the opposite extreme from this very mild subcommittee that we propose here.

Then Ambassador Sobolev had a great deal to say about the San Francisco declaration. Now, I happen to think that the San Francisco declaration is significant largely as a matter of attitude. I agree with the President that the thing that governs us here is the charter and the rules of the Security Council. The President has made many wise observations tonight but never more so than when he made that statement. That gets us back to fundamentals.

But I would like to quote you something from this famous declaration of San Francisco to which Ambassador Sobolev referred so often. In this declaration there is a list of things to which the veto shall not be applied. There are a number of them, but I will just read the part which affects this question:

"For example, under the Yalta formula a procedural vote will govern the decisions made under the entire section D of chapter VI. This means that the Council will, by a vote of any seven of its members, adopt or alter its rules of procedure; That is one thing. And then, "establish such bodies or agencies as it may deem necessary for the performance of its functions." I would like to read that again, "establish such bodies or agencies as it may deem necessary for the performance of its functions."

Now, if that is not what we are doing here, then I cannot understand plain language. That is precisely by its very terms one of the things which under the declaration of San Francisco is not a matter of substance to which the veto cannot be applied. Ambassador Sobolev, who based his case on the declaration of San Francisco, must recognize that the whole foundation is knocked out from under his argument by this quotation which I have just read.

Now, I would like to make a few more remarks on this subject to summarize the position of the United States both on our procedure today and on the four-power declaration.

The United States has consistently taken the view that the so-called double veto cannot be used to make substantive a matter declared by the four-power statement to be procedural. This was clearly expressed before the Council by Ambassador [Ernest A.] Gross, the United States Representative at the 507th meeting on September 29, 1950, nearly 10 years ago, in these words:

Section II, paragraph 2 of the San Francisco declaration was never intended, and cannot properly be construed, as giving the five permanent members of the Security Council the right to use the device of the double veto to determine uni

'The June 7, 1945, Four-Power (China, U.S.S.R., U.K., and U.S.) Statement on Voting Procedure in the Security Council; text in A Decade of American Foreign Policy: Basic Documents, 1941–1949, pp. 1057–1060. * Egidio Ortona (Italy).

In the debate on the Chinese Communists' complaint of armed invasion of Taiwan; see American Foreign Policy, 1950–1955: Basic Documents, pp. 24762481.

laterally as nonprocedural, matters which according to the charter, or by agreement contained in part I of the San Francisco declaration, are procedural. That was 10 years ago, but that continues to be the view of the United States.

This resolution which we have just adopted establishes a subcommittee of the Council to receive statements and documents and to conduct such inquiries as it may determine necessary. We regard such action as a normal and accepted procedure by which the Council can make its work more orderly and more efficient. This is truly, and I am quoting from the charter, a "subsidiary organ" which the Council "deems necessary for the performance of its functions," which is the precise situation covered by article 29.

Such a subsidiary organ is specifically considered procedural in the charter in article 29, which says: "The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions." It is also procedural under rules 28 and 33 of the rules of procedure. And I would like to read rule 28. It says: The Security Council may appoint a commission or committee or a rapporteur for a specified question." That is rule 28. Rule 33 says,

The following motions shall have precedence in the order named over all principal motions and draft resolutions relative to the subject before the meeting: 1. to suspend the meeting; 2. to adjourn the meeting; 3. to adjourn the meeting to a certain day or hour; 4. to refer any matter to a committee, to the Secretary-General or to a rapporteur; 5. to postpone discussion of the question to a certain day or indefinitely; or 6. to introduce an amendment. Any motion for the suspension or for the simple adjournment of the meeting shall be decided without debate.

Now, that part in there to refer to a committee is put right in with all these other procedural things. Can that be just accidental? Would that have been done if that was a question of substance?

This matter is procedural under section I, paragraph 2, of the fourpower declaration which I have already read. And it is procedural under General Assembly resolution 267 of the third General Assembly which reads:

8

The General Assembly, . . . 1. Recommends to the members of the Security Council that, without prejudice to any other decisions which the Security Council may deem procedural, the decisions set forth in the attached annex be deemed procedural and that the members of the Security Council conduct their business accordingly; . .

And one of the decisions referred to was, "Establishment of such subsidiary organs as the Security Council deems necessary for the performance of its functions." Now, that is a vote of the General Assembly which states categorically that what we have just done is procedural. Let me call the attention of the Council to the fact that the authority to refer "any matter to a committee" in the Council's rules of procedure is found in rule 33, which gives the order of prece

8

On "The Problem of Voting in the Security Council," adopted Apr. 14, 1949; text in A Decade of American Foreign Policy: Basic Documents, 1941-1949, pp. 1075-1076.

dence of obviously procedural motions "over all principal motions and draft resolutions relative to the subject."

Now, Mr. President, it is both illogical and contrary to the fundamental intention of the charter that the Security Council should be prevented by a double veto from obtaining assistance from subsidiary organs which it deems necessary for the performance of its functions. But beyond that, in the resolution which we have adopted, the Council stands on a precedent of long standing in reaffirming that establishment of such a subcommittee is a matter under article 29.

I refer, of course, to the Spanish case of 1946. The resolution sponsored today by three members is in substance taken verbatim from the operative paragraph of the resolution adopted on the Spanish question on April 29, 1946. The resolution adopted by the Council on the Spanish question was a revision of an earlier draft which had called specifically for an investigation under article 34. But in introducing the revised resolution its sponsor, who was the representative of Australia, said that the draft had "cut out the idea of a formal investigation under Article 34 so as to enable the proposed body to be brought in under article 29 as a subsidiary organ." The representative of Australia at that time clearly drew this distinction, and his interpretation was never explicitly challenged and was in fact reinforced by subsequent statements by the representative of Australia in explaining the intent and scope of the resolution, including the statement that it was up to the subcommittee itself to decide "how and when and where the inquiry is to be made." Furthermore, the Spanish subcommittee is listed in the Repertoire of the Practice of the Security Council under article 29. That is how it is officially listed, and you can verify that. The subcommittee which was established under article 29 in 1946 can be established under the same article in 1959.

Now, Mr. President, as a matter of fact, the Soviet Union has already tacitly conceded that, under circumstances similar to those pertaining today, the Council can determine a resolution to be procedural without the concurring vote of all the permanent members. And I will tell you when this happened. This happened when the Council on September 29, 1950, considered the agenda itein, complaint of armed aggression against Taiwan.10 The Security Council decided an issue in that case against the negative vote of one of the permanent members, and the Soviet Union made no complaint. Because its political interests are different now, the Soviet Union takes an entirely different point of view from that which it took in 1950.

Now, in contrast to that, let me point out that the United States has consistently taken the position since 1946 that resolutions of the type which we have today, setting up subcommittees of the Council, are procedural questions under article 29. We took that position in the Spanish case, in the Corfu Channel case,11 and in the Czech case.12

11

See the Department of State Bulletin, May 12, 1946, pp. 788-796 and 803. 1o See footnote 7, above.

"Of 1946-1947; see U.N. docs. S/247, 258, 300, and 324, and S/PV.95-97, 107, 109, 111, 114, 120-122, 125, and 127.

12 See A Decade of American Foreign Policy: Basic Documents, 1941-1949, pp. 1183-1189.

In the Czech case, which the Soviet Union has cited to support its position, the Council will remember that a majority of the members of the Council voted that the resolution was procedural. The United States made an explicit reservation to that effect and announced that regardless of the decision at that time we would feel free to act in the future on the basis that resolutions establishing subcommittees were procedural.

But even more important that that, the United States concurred during the complaint relating to Taiwan discussion in 1950 13 that the resolution was procedural and that the negative vote of a permanent member could not prevent it from being procedural. And we did this even though we were opposed to and voted against the resolution. That is the side we were on. Ambassador Gross, the United States Representative, stated,

The results of applying the law of the charter, as I said at the outset of my remarks, in the present instance, where it is against our own interests, is not pleasant, but if we do not apply that law now in these circumstances, we cannot expect others to apply it when it is not in their interests to do so. That was our position then and that is our position now. There is no cloud of any kind on the resolution which we have just adopted.

466. SOVIET PROPOSAL FOR RECONVENING THE 1954 GENEVA CONFERENCE ON INDOCHINA TO CONSIDER THE SITUATION IN LAOS: Statement Issued by the Soviet News Agency Tass, September 14, 1959 (Excerpts) 1

The Geneva agreements on Laos provide for exhaustive measures to restore and maintain peace in that country and to ensure its peaceful and democratic development. They obligate Laos to refrain from participating at any time in the conduct of an aggressive policy and not to permit the use of its territory in the interests of such a policy. Under the terms of these agreements, it is forbidden to introduce foreign military personnel into Laos or to bring in armaments, munitions or military equipment, with the exception of a specified quantity of armaments in categories specified as necessary for the defence of Laos, the transport of which into the country is to take place under the supervision of the International Commission for Laos. The Geneva agreements also obligate the Government of Laos to integrate all members of the Pathet Lao movement into the national community without discrimination and to guarantee them the equal and unimpeded exercise of civil rights.

The agreement concerning the activity of the International Commission for Supervision and Control in Laos, made up of the representatives of Canada, India and Poland, is an integral part of the Geneva agreements on Laos; it renders superfluous the "concern" evinced to send other observers to Laos, unless the aim lying behind that "concern" is provocation. If the Western Powers really want to regulate the situation in Laos, which has become strained of late, they should instruct the International Commission on Laos-a body acting

13 See footnote 7, above.

'Text as printed in U.N. doc. S/4222, distributed to U.N. members, Sept. 21, 1959, as per the Soviet representative's request of Sept. 15.

2 Texts in American Foreign Policy, 1950-1955: Basic Documents, pp. 775–787. 'Chapter VI of the July 20, 1954, agreement on Laos; text ibid., pp. 781-784.