TRANSITIONAL SECURITY ARRANGEMENTS

(Chapter XVII)

INTRODUCTION

Nowhere more clearly than in the Chapter on transitional security arrangements is there manifested the intelligent realism of the architects of the United Nations. From the outset these men faced squarely the fact that the Charter could not create an Organization which would spring into being possessed from the start of full power to maintain international peace and security. They knew that if it was to succeed it must not be burdened at the outset with responsibilities which it could not immediately fulfill. They knew that it must be given time to become firmly established. Above all, they knew that it would be not only an impossibility but a tragic mistake to throw upon the Organization the task of enforcing the peace against the enemy states.

Armed force is the ultimate sanction in the enforcement of peace. The United Nations will have no armed force at its disposal until at least some of the agreements envisaged in Article 43 become effective. This difficulty is taken care of by Article 106, the first of the two which comprise this short Chapter. During the indefinite time which must elapse before the Security Council decides that enough of the agreements are effective for it to begin the exercise of its responsibilities for military enforcement action, the five great powers which are to be the permanent members of the Security Council undertake to exercise on behalf of the Organization, jointly and with other members of the United Nations, such security functions as may be necessary.

Article 107 is concerned with the enemy states in the present war. By this provision the authority and the responsibility for the enforcement of the terms imposed upon those states and for the measures to prevent them from again menacing the peace are to be left to the victorious states. The responsibilities which the Security Council may have in respect to these enemies, and the time and manner of the transfer to it of those responsibilities, are matters to be decided at a later date.

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The actual duration of the periods envisaged in these two articles cannot now be foreseen. It will depend on the speed with which the special agreements on the supply of armed forces are concluded, on the state of world affairs, on the rapidity with which the new Organization demonstrates its capacities, and, in respect to Article 107, on the effectiveness of measures taken against the defeated powers. Delegates at the San Francisco Conference expressed the hope, which the American people will surely share, that the day is not many years off when Chapter XVII will become a dead letter. The onerous burdens which the great powers will have to bear as members of the respon sible five will surely lead them to hasten that day by transferring their special responsibilities to the Organization as speedily as practicable.

FILLING THE GAP

It is highly appropriate that the Moscow Declaration should figure prominently in Article 106, which not only mentions it by name but paraphrases it as well. Not only did that great instrument give the world promise of a new international organization and mark the beginning of great-power cooperation to make that promise a fact; it also specifically provided that the great powers would cooperate with

each other and with other United Nations for the maintenance of international peace and security pending the reestablishment of law and order and the inauguration of a system of general security.

Modified to fit the circumstances, paragraph 5 of the Moscow Declaration was presented to the United Nations Conference as Paragraph 1 of Chapter XII of the Dumbarton Oaks Proposals. The delegations at San Francisco from nations not represented at Dumbarton Oaks offered only two amendments affecting this paragraph. One, a French proposal to add the name of France to those of the other four powers, was adopted at once by acclamation. The other, a Mexican suggestion that the whole of this chapter be divorced from the Charter and made the subject of a separate protocol, was rejected by the Technical Committee.

The amendments being disposed of and consideration of the paragraph itself begun, it developed that, while all delegations approved the substance, few agreed with the five powers that the language was clear. Considerable discussion took place, revolving around three

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closely related issues, all of which applied in different degree to Paragraph 2 of Chapter XII (Article 107) as well: the duration of the interim period; the location of authority to terminate it; and the functions which the Security Council would be able to exercise until the agreements were in force. Votes on two occasions having demonstrated that the other delegations were determined on more precision, the five powers, furnishing another example of their willingness to compromise and of their cooperation, jointly presented a revised textwhich was adopted unchanged as Article 106.

The revisions were all in the first part of the text (corresponding to Paragraph 1 of Article XII of the Dumbarton Oaks Proposals), which now makes it clear that not all the special arrangements for the provision of armed forces have to be ratified — a process which might take years - before the Security Council can take military enforcement action. Only such agreements as the Security Council itself deems sufficient for the purpose need be in effect.

Article 106 does not, as some delegates wished it to, define precisely the functions of the Security Council during the interim period, nor the limits of the joint action which the five powers may take. Had it done so it would have established a fixed and frozen division of responsibility, and thus defeated its own purpose, which is to provide for the orderly growth of the Security Council's functions, to permit it to take successively larger bites of responsibility. This flexibility is accomplished in two ways. First, only the power to take military enforcement action is withheld from the Security Council and that only temporarily. Secondly, the five powers which will be permanent members of the Security Council are granted authority to fill the temporary vacuum to the extent necessary by taking action on behalf of the Organization. It should be emphasized, however, that this five-power action must be joint and that consultation with other members of the United Nations is provided for. In other words, while this action may, in a formal sense, be outside the framework of the Organization, it is to be completely within the spirit of the Charter.

THE CHARTER AND THE ENEMY STATES

The four powers which signed the Moscow Declaration never intended that the world organization to be created should be charged with control over the defeated enemy, at least for a considerable time.

For the reasons already stated, both the effectiveness of enforcement measures and the success of the Organization would probably have been jeopardized if this had been tried. Therefore, when the Dumbarton Oaks Proposals were written it was but natural that they should include provision to leave the control of the defeated states to the responsible governments.

That this view was shared by all the Governments represented at San Francisco is shown by the fact that Paragraph 2 of Chapter XII of the Dumbarton Oaks Proposals (Article 107 of the Charter) was not the subject of any amendments. Like Paragraph 1, however, it was criticized on the ground that it lacked precision and clarity, but in this case the five powers did not feel it advisable to offer or accept any significant change, although they were agreeable to a slight modification in phraseology. The Technical Committee sustained the five powers by an overwhelming majority, after some oral clarification of the intent which was incorporated in the Rapporteur's report.

There is one fact about Article 107 which should be noted. While no limitation can be imposed by the Organization on action taken for the control of the present enemy, the Organization itself is not barred by any language in the Charter from acting in this field, so that the responsible governments may, whenever and in whatever degree they wish, transfer responsibilities of this character to it.

One further point considered by the Technical Committee dealing with this Chapter was an amendment offered by the Government of Greece, the effect of which would have been to prevent enemy states from having recourse to the Security Council or the General Assembly. The Committee rejected this amendment, believing that its intent was adequately covered in other places in the Charter and that the right of recourse should not be emphasized. However, there was general approval of its intent, and, on the proposal of the United States Delegate, the Committee voted unanimously to insert in its report an understanding that the enemy states in this war shall not have the right of recourse to the Security Council or the General Assembly until the Security Council grants them this right.

CONCLUSION

The provisions of Chapter XVII do not mean any weakening of the United Nations- any taking away of what is granted elsewhere

in the Charter. On the contrary, they will contribute in the long run to its waxing strengh and success.

For the United States, Article 106 will mean a greater responsibility for world security than is accorded by the main body of the Charter. To be one of five necessarily involves more responsibility than to be one of many, even though the special attributes of the five powers will cause them to remain a distinctive element in the world structure. Article 107 imposes no such responsibility. The responsibility exists, but it derives from the war and the surrender terms, not from the Charter. Indeed, in a very real sense not even Article 106, nor any other provision of the Charter, imposes any extra responsibility on this country, except in the contractual obligation to collaborate for the maintenance of international peace and security. The same responsibility would devolve upon the United States whether a world organization had been created or not. It results not from the Charter but from the position of the United States in world affairs, that is, from its power, its authority and its moral prestige.