Foreign Relations of the United States: Diplomatic Papers, 1945, General: The United Nations, Volume I

RSC Lot 60–D 224, Box 96: U.S. Cr. Min. 9

Minutes of the Ninth Meeting of the United States Delegation, Held at Washington, Thursday, April 12, 1945, 9 a.m.

Washington, April 12, 1945, 9 a.m.

[Informal Notes]

[Here follows list of names of persons (15) present at meeting.]

Relations of the Delegation With the Press, Radio, and Broadcasting Systems

The Secretary convened the meeting at 9 a.m. and announced that Mr. MacLeish had a policy statement³⁰ to present to the Delegation on its relations with the public at San Francisco.…

. . . . . . .

Questions Arising From Discussions in the Committee of Jurists

The Secretary requested Mr. Hackworth to present certain matters that had arisen in connection with the discussions of the Committee of Jurists.

Mr. Hackworth said he would make a very brief statement and that he was glad to tell the Delegation that the discussions of the Committee of Jurists were going very well. Thirty-three articles, he explained, had already been covered, a number of which were now under discussion in subcommittees. He added that there were about four outstanding problems that he felt should be presented to the Delegation so that he could have their guidance in further negotiations.

Mr. Hackworth said the first problem was the method of election of judge to the court.³¹ According to the present method of the Court, judges are nominated by panels of judges on the Hague Court of Arbitration and are elected by the Council and the Assembly of the League of Nations. He said the British were now proposing that judges be nominated directly by governments and that instead of the nine members of the present Court, fifteen should be elected. He pointed out that this government doubted whether nine members would be sufficient and that our tentative view was that the Court should be kept at fifteen and that the present method of election should be retained. Our primary objection to the British suggestion, he added, was that it would throw the whole matter into politics. Senator Connally asked whether states not members of the Hague Court of Arbitration could participate in the election of judges to the Court. Mr. Hackworth replied in the affirmative and added that where a state is not a member of the Hague Court, it may set up a panel of four to prepare a nomination.

The Secretary asked what decision Mr. Hackworth wished from the Delegation. Mr. Hackworth replied that he wished to know whether we should adhere to our present tentative position or go along with the British. Senator Connally favored retaining our present position. Representative Bloom thought that any change from the present system would permit states to gang up and pack the Court. Mr. Hackworth strongly recommended sticking to the present method of election, adding that this position was widely supported by the American Bar Association. Mr. Bloom pointed out that while under the British proposal states would tend to nominate judges of a particular political conviction, this same weakness was also present in the existing system since governments put men on the Hague tribunal that they considered “sound”. Mr. Bowman recommended that we stick to the old method for the time being, but recognize that we would prefer a better method if it could be developed.

The Secretary questioned whether the Delegation was in a position to make a decision on this matter and wondered whether it would not be wise to reserve our position until further study could be given to this question. He added that it would be well to have Chief Justice Stone’s point of view. Senator Connally suggested that former Chief Justice Hughes might also be consulted.³² It was then generally agreed that the Delegation would reserve its position and that former Chief Justice Hughes and Chief Justice Stone would be consulted.

Mr. Hackworth said he had a further point to raise—the question of compulsory jurisdiction.³³ He explained that some countries wanted compulsory jurisdiction, but that the United Kingdom and the Soviet Union were opposed.³⁴ Among those countries favoring compulsory jurisdiction in particular were the Latin American countries. Senator Connally said that he could not agree to compulsory jurisdiction unless the cases that could come before the Court were very restricted.

Mr. Hackworth explained that the American Bar Association was very much in favor of compulsory jurisdiction and that they would like to see compulsory jurisdiction adopted. They recognized, however, that it would be necessary to permit any government to make a reservation when approving the treaty. Senator Vandenberg commented that the Permanent Court did not get by the Senate, even with its present jurisdiction. Mr. Hackworth agreed that probably compulsory jurisdiction would not be acceptable. Mr. Pasvolsky noted that there already was compulsory jurisdiction under the optional clause and Mr. Hackworth agreed that it was possible to have compulsory jurisdiction under the present statute.

The Secretary said it was then agreed that this government did not favor the proposals of the Latin American countries for compulsory jurisdiction.

Mr. Hackworth explained that a third point he wished to discuss was that of advisory opinions.³⁵ He noted that the Dumbarton Oaks Proposals provide that the Security Council may ask for advisory opinions but that there was now some feeling that both the Assembly and other international organizations should also be allowed to ask for advisory opinions. Senator Connally said he had no particular objection to empowering the General Assembly to ask for advisory opinions except that such a provision might pose conflicts of jurisdiction between the General Assembly and the Security Council. Mr. Hackworth thought empowering the General Assembly to ask for advisory opinions would be in line with our general desire to strengthen the Assembly.

Representative Bloom asked what an advisory opinion was. Mr. Hackworth replied that it was a request to the Court on a question of law.

Mr. Bowman noted that after elaborate discussion of this whole matter in Mr. Hull’s office over a period of a year, the conclusion in the end was that the General Assembly should be empowered to ask for advisory opinions. Senator Connally said he had no objection whatever to the Assembly asking for advisory opinions on questions that lay within the jurisdiction of the Assembly. Mr. Bowman commented that of course the Court was free to decide whether it wished to give an opinion in a case or not. Mr. Hackworth agreed that the Court on a number of occasions had in fact decided not to give an opinion. Representative Bloom said what he objected to was the phrase “advisory opinion”. Why could not just the word “advice” be adopted? The term “opinion” suggested that the Court would be bound by its decision and that to escape a prior decision it would have to reverse itself. Senator Connally commented that a reversal had frequently taken place in the history of courts.

Mr. Hackworth asked if it was the sense of the meeting that the Assembly should be allowed to request advisory opinions along with the Security Council. Mr. Gerig noted that in the case of the League where both the Council and the Assembly could request advisory opinions there had been some thirty cases where the Council had requested such opinions and only one case in which the Assembly had requested an opinion. He noted that there was the possibility of losing control over the vote requesting an advisory opinion if the matter was handled by the Assembly, since the major powers would not have a veto on the decisions of the Assembly.

It was the general agreement of the Delegation that the Assembly should be allowed to request advisory opinions.

Mr. Hackworth asked whether international organizations such as the International Labor Organization should be allowed to request advisory opinions also. Senator Connally thought this would be most inadvisable since these bodies were not in the same category with the Security Council and the General Assembly. It was generally agreed that it would be undesirable for international organizations like the I.L.O. to request advisory opinions.

Senator Connally said he would like to make it clear that he was reserving his views on these questions for later study and The Secretary suggested that these matters be raised again at a later time.

The meeting was recessed at 10:10.

At 10:15 the meeting was reopened by the Secretary . . . .

[Here follows list of names of persons (28) present at meeting.

Following the list is a paragraph referring to a memorandum which was distributed to the delegates setting forth the voting record of members of the British Commonwealth in the League of Nations.]

Review of Proposals and Suggestions for Consideration—Chapter VI

The Chairman then asked Mr. Pasvolsky to open the discussion of Chapter VI of the Dumbarton Oaks Proposals.

Section A

With reference to Section A, Mr. Pasvolsky reviewed the changes in the composition of the Security Council proposed by other governments. These included proposals for abandoning the category of permanent members, for increasing the number of permanent members and, likewise of non-permanent members, and for providing for regional representation. Mr. Pasvolsky drew particular attention to the desire of the “Middle Powers” for special consideration with respect to membership on the Security Council. He recommended that this Government should be prepared, if necessary to enumerate various criteria which it would consider a suitable basis for use in selecting the non-permanent members of the Council, but that such criteria should not be incorporated in the Charter itself. It was agreed by the Delegates that this was the proper position to take.

Section B

Paragraph 1—Mr. Pasvolsky said that paragraph 1 of Section B incorporated a principal feature of the Dumbarton Oaks Proposals, namely that the Security Council should have primary responsibility for the maintenance of international peace and security. Senator Connally thought it unwise to grant to the Assembly the right of review of Council decisions in this field, as a number of governments have proposed. Senator Vandenberg and Representative Eaton concurred with this view. It was agreed that this paragraph is satisfactory as it stands.

Paragraphs 2 and 3—With respect to the following paragraph (2), which Mr. Pasvolsky explained had been incorporated at British insistence, it was agreed that the phrase “and the provisions of this Charter”^35a should be appended at the end.

Paragraph 3 was agreed to in its present form without discussion.

Paragraph 4—The vital importance of paragraph 4 was recognized in that it obligates all members of the Organization to accept the decisions of the Security Council. In response to a question from Senator Connally, Mr. Pasvolsky said that it refers only to measures of enforcement.

General Embick and Secretary Stettinius thought the paragraph should stand as it is, whereas Senator Vandenberg said that he could appreciate the Canadian point of view. With reference to Canada’s proposal that decisions of the Council be binding only on its members and that only they be obliged to take enforcement action unless by virtue of a concurring vote in the Assembly all members of the Organization were similarly bound, Mr. Pasvolsky said that the implications of such a provision had been discussed in conversations with the Canadians and that it had been pointed out to them that their proposal would have the effect of limiting enforcement measures to the action of the great powers. He said that the Canadians were somewhat shaken in their position by this argument and that it had been used with similar effect in conversations at Mexico City with representatives of Latin American countries.

Mr. Hickerson raised the question as to whether the Canadian proposal applied only to the supply of forces or applied as well to the making available of facilities. Mr. Stettinius anticipated that there would be complications about the use of bases if concurrence by General Assembly were made to apply to facilities and assistance as well as to armed forces. Admiral Willson agreed with General Embick that a modification of paragraph 4 in the direction of the Canadian proposal would slow up action and would make planning difficult. At this point Senator Connally left the meeting, stating that he favored leaving the provision in its present form. This was the position adopted by the Delegates.

Paragraph 5—Paragraph 5, relating to the regulation of armaments, was considered acceptable in its present form. Mr. Pasvolsky said that the negotiations at Dumbarton Oaks would indicate that this provision goes as far as is practicable.³⁶

Section C

With reference to Section C, relative to voting in the Security Council, Mr. Pasvolsky took note of the French proposals which would have the effect of placing under paragraph 2 disposition of all matters arising under Section A of Chapter VIII. In support of the present text he made the point that unanimity among the great powers was important in order to give greatest possible weight to recommendations for pacific settlement. It was agreed to stand by Section C in its present form.

Section D

Mr. Pasvolsky explained that paragraph 1 of Section D, relative to procedure in the Security Council, was the result of a compromise between two views. The British had wanted the Council to be a meeting place of foreign ministers; at the same time, this Government had desired the Council to be a continuous organ. It was agreed that the paragraph is satisfactory as it stands.

The Secretary left the meeting and asked Senator Vandenberg to act as Chairman.

In accordance with a recommendation of the Committee on Security Aspects of Preparation for the United Nations Conference, Mr. Pasvolsky proposed the dropping of the last clause from paragraph 2, and this was agreed to. He explained that the British had asked for the inclusion of this reference to regional subcommittees of the Military Staff Committee in order that the control of Germany might be made a special case under the Charter. The subsequent decision embodied in paragraph 2 of Chapter XII in the Proposals made this reference necessary [unnecessary].

Paragraph 3 was agreed to without discussion.

Mr. Pasvolsky stated that two alternatives had been proposed by other governments in substitution for the procedure envisaged in paragraph 4: (1) that the participation in the discussion of any question before the Security Council should be a right to be exercised on the decision of any member of the Organization, and (2) that the privilege might be accorded to any member of the Organization by a specified minority vote in the Security Council. Senator Vandenberg thought that if only the right of discussion were involved it might be left unrestricted. Mr. Pasvolsky suggested, however, that many would clamor to be heard and that it was in the interest of more orderly procedure to put such participation on a restricted basis. It was decided to let paragraph 4 stand as it is, but the opinion was expressed that, if pressure develops at the Conference to liberalize its terms, no serious objection should be interposed. The same conclusion was reached with reference to paragraph 5.

Review of Proposals and Suggestions for Consideration—Chapter VIII

Chapter VIII, Section A

With reference to Section A of Chapter VIII, the next item on the agenda, Senator Vandenberg proposed to add the following sentence to paragraph 1: “If the Security Council finds that any situation which it shall investigate involves injustice to peoples concerned, it shall recommend appropriate measures of adjustment which may include revision of treaties and of prior international decisions.” Senator Vandenberg said that he wanted to make the fundamental point that the Security Council must look backward as well as forward. He felt that, if the Charter were to be a rigid guarantee of the status quo, there would be difficulty in securing the approval of the Senate. He wanted to find language which would result in the least friction, but which would constitute a reference to this point in the Charter.

Mr. Pasvolsky took the view that the investigatory powers of the Council should be concerned exclusively with situations the continuance of which might endanger the peace and that this was not the appropriate place to introduce broad language of this kind. He suggested, therefore, that the possibility of incorporating such a provision in the Chapter on the General Assembly should be further examined. This was agreeable to Senator Vandenberg, and it was decided to defer consideration of this matter to another time.

Paragraphs 2, 3, and 4 were found satisfactory in their present form.

Paragraph 5 gave rise to considerable discussion. Mr. Pasvolsky pointed out that it involved the important issue as to whether the Council’s powers of pacific settlement should be limited to the recommendation of procedures or methods of adjustment, as provided for in the present text, or whether they should be broadened to include recommendations relating to terms of settlement. Representative Bloom asked where this power resided if not in the Council, and Representative Eaton thought that the Council would have to take cognizance of measures of settlement. Mr. Bowman stated that it had been the desire at Dumbarton Oaks to give disputants a wide freedom of action as to the manner of settling disputes and he favored leaving paragraph 5 in its present form. Mr. Pasvolsky’s suggestion that the phrase “or, settlement” be added at the end of the paragraph was agreed to.

Paragraph 6 was accepted as satisfactory without discussion.

With reference to paragraph 7, Mr. Pasvolsky said that two important changes had been proposed: (1) to limit the applicability of paragraph 7 to paragraphs 3, 4 and 5 of Section A and (2) to designate the international court of justice as the agency to determine whether a dispute arose out of matters solely within the domestic jurisdiction of the state concerned. Mr. Pasvolsky thought that these changes would constitute an improvement over the present text.

Senator Vandenberg thought that it was important to examine this question carefully in the light of the attitudes expressed in the Senate on those occasions when the question of adherence to the Statute of the Permanent Court of International Justice was before that body.³⁷ He said he wanted to go as far as it was practicable to go in the Senate. There was discussion of specifying the Security Council rather than the Court, but it was pointed out that the United States would not have a veto on the Council if it were a party to a dispute of the kind covered by VIII, A. Senator Vandenberg then suggested that consideration of this very important paragraph be deferred until Senator Connally was present. It was agreed to do this.

Chapter VIII, Section B

With respect to paragraph 1 of Section B, Mr. Pasvolsky suggested that the phrase “and the provisions of this Charter” be added, thus making the drafting in this paragraph conform to the language suggested for paragraph 2 of Section B of Chapter VI. It was agreed that it should be adopted as a general drafting rule that this change should be made elsewhere at the appropriate places in the Charter. With this additional phrase, paragraph 1 was considered to be satisfactory.

Paragraphs 2 and 3 were approved in their present form. With respect to the latter, Representative Bloom said he did not like the enumeration of measures not involving the use of armed force, but did not suggest any revision in view of Mr. Pasvolsky’s statement that the enumeration had been in response to Soviet insistence.

It was recognized that some clarification of paragraphs 4 and 5 might be in order. Accordingly, it was agreed that, in the event of dissatisfaction on the part of other Governments, the following revisions would be agreeable to the United States Delegation:

With respect to paragraph 4, the redrafting of the last sentence to read: “Such action may include demonstrations, blockade, and other operations by air, sea or land forces made available to the Security Council by the members of the Organization.

With respect to paragraph 5, the redrafting of the last sentence to read: “The negotiations concerning the special agreement or agreements should be initiated by the Security Council as soon as possible. The agreement or agreements should be subject to approval by the Security Council and to ratification by the signatory states in accordance with their constitutional processes.”

Paragraph 6 was approved. Senator Vandenberg said that it was his understanding of this paragraph that the forces would be supplied under the agreements referred to in paragraph 5. General Embick said that this was the correct view. Mr. Pasvolsky explained that the paragraph had developed from the proposal of the Soviets for an international air force.

Mr. Pasvolsky explained that paragraph 7 provides that the Security Council may decide in each case whether contributions of armed forces, facilities and assistance shall be required of all members of the Organization or of a smaller number, and that the second sentence thereof refers to a situation in which the Organization calls for action in which it is desirable for the specialized international organizations to concur. This paragraph was considered satisfactory.

Paragraphs 8, 9, 10 and 11 were approved in their present form.

Section A, Paragraph 1

At this point Senator Vandenberg reverted to paragraph 1 of Section A of Chapter VIII and proposed that investigation of a dispute be made a rigid obligation on the Security Council. He suggested that this might be done by substituting “shall investigate” for “should be empowered to investigate.” Mr. Pasvolsky said that this question had come up at Dumbarton Oaks and that it had been decided not to make investigation mandatory because too much investigation would provoke difficulties. Mr. Bowman thought that the Council should not be obliged to take up every case, many of which would be trivial. Mr. Pasvolsky made the further point that, in view of the discretion still remaining in the Council to judge whether international peace and security were actually in danger, no device could give assurance that the Council would in any particular instance exercise its investigatory powers. It was decided to let the paragraph stand as it is.

The meeting was adjourned at 11:45 a.m.

30. Draft statement not printed.
31. For official comments on the Statute of proposed Court respecting the election of judges (articles 8, 10–12, Statute of the Permanent Court of International Justice (P.C.I.J)), see Conference Series No. 84: The International Court of Justice: Selected Documents Relating to the Drafting of the Statute (Department of State publication No. 2491), p. 24.
32. In accordance with the request of the United States delegation, the views of Chief Justice Harlan F. Stone and former Chief Justice Charles Evans Hughes (appointed in 1930 and retired in 1941) were obtained. “Both indicated strong preference for the maintenance of the present system as perhaps offering greater assurance of the judicial character of the Bench”, according to a memorandum on the Court for the delegation, April 28, not printed.
33. For opinions of various governments on the question of jurisdiction of the Court (article 36, Statute, P.C.I.J.), see The International Court of Justice, pp. 33–45.
34. For opinions expressed by delegates of the Soviet Union and the United Kingdom, see Jurist 34, G/25, April 12, UNCIO Documents, vol. 14, pp. 151, 153, and 158.
35. For official comments regarding the question of advisory opinions (article 65, Statute, P.C.I.J.), see The International Court of Justice, pp. 51–52.
36. Passages printed in italics in this document are underlined in the original.
36. See progress reports on Dumbarton Oaks Conversations, September 8 and 19, 1944, Foreign Relations, 1944, vol. i, pp. 783 and 824, respectively.
37. On January 27, 1926, the United States Senate gave its advice and consent to the ratification of the protocol of signature subject to five reservations; on September 14, 1929, a protocol for the accession of the United States was opened for signature by a conference of states signatories to the protocol; on January 29, 1935, by vote of 52 to 36, the Senate failed to adopt a resolution approving ratification of the protocol of accession by the United States. For documentation during this period on the question of United States adherence to the Statute of the World Court, see Foreign Relations, 1926, vol. i, pp. 1 ff.; ibid., 1929, vol. i, pp. 1 ff; and ibid., 1935, vol. i, pp. 383 ff.