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

RSC Lot 60–D 224, Box 96: US Cr. Min. 25

Minutes of the Twenty-Fifth Meeting of the United States Delegation, Held at San Francisco, Wednesday, May 2, 1945, 9 a.m.

San Francisco, May 2, 1945, 9 a.m.

[Informal Notes―Extracts]

[Here follows list of names of persons (24) present at meeting.]

Senator Connally stated that the Chairman of the Delegation had requested him the previous evening to preside at this meeting. He asked Mr. Hackworth to proceed with his report on the International Court of Justice.

Mr. Hackworth stated that there were three questions as to which the United States Delegation should take a position so that we could know what the United States’ views were in the Committee proceedings. He observed that he had talked to Sir William Malkin of the United Kingdom, who had told him that the British Delegation had made up its mind with respect to the court. Mr. Hackworth said he did not know what the British position was yet. The three questions to be decided were: (1) Continuity of the court, which had been left open in Washington as it was largely political; (2) nomination of the judges of the court; (3) compulsory jurisdiction—Mr. Hackworth thought it had been decided the other day that the present optional clause should be retained.³³ Senator Connally told Mr. Hackworth that it had been definitely decided to keep the optional clause. Mr. Hackworth asked the Delegates for guidance on these questions to enable him to discuss them with the British, Russians, and Chinese, so as to reach some sort of understanding in Commission IV.

Mr. Dunn suggested that perhaps Mr. Hackworth and the legal representatives of the other sponsoring powers might be added to the Subcommittee of the four sponsoring powers which was discussing the changes in the Dumbarton Oaks Proposals.³⁴ He thought that by bringing in the legal representatives, this group could discuss those points there. Representative Bloom noted that Mr. Hackworth was asking for the Delegation’s decisions on these matters before going into the small Subcommittee.

Continuity of the Court of Justice

Senator Connally then said that with regard to the continuity of the court, he understood that if the old court were retained, its present name would be retained as would its statute with some modifications. Mr. Hackworth pointed out that whether a new court or an old court were accepted it would still be necessary to elect new judges, as the present incumbents were hold-overs from 1939. Representative Eaton commented that in any event the court would be new to that extent.

Senator Connally stated that Judge Hudson had asked him to be permitted to come to a delegation meeting as a representative of the court. Mr. Hackworth commented that the court now had three representatives in San Francisco: Judge Hudson; the President of the Court, Sr. Guerrero, of El Salvador; and the Registrar,³⁵ who were representing the Court, as one of the organizations authorized to have representatives at the Conference. Dean Gildersleeve remarked that two or three of the Delegates had agreed to meet with the representatives of the ILO and wondered if the same procedure could not be followed with respect to the representatives of the Court.

Senator Vandenberg said he understood that the American Bar Association was on one side and the Lawyers Guild on the other, with respect to continuing the court. Mr. Hackworth said that the American Bar Association wanted to retain the old court, while the Lawyers Guild wanted a new court. He personally thought it would be possible to have either court, although there would be some difficulty in taking the old court out of its present group and putting it into the United Nations. Senator Connally stated that if the present court were retained, it would have to be modified somewhat. Senator Connally then asked that Commander Stassen be sent for, as he hated to arrive at any decisions on this matter, since Commander Stassen was assigned to Commission IV.

Dr. Pasvolsky then introduced the following Brazilian proposal with respect to the power of the court to review treaties:³⁶

“Where any Contracting Party of an executory treaty alleges that it can not be carried out, either partially or totally, or that it is unjust to maintain its existence, the Assembly, by a majority of two thirds, may invite the other or other Contracting Parties to agree with the first as to the revision or annulment of such treaty. Should one of the Contracting Parties not agree to the revision or annulment, the other or other Contracting Parties shall be authorized to have recourse to the Permanent Court of International Justice which, by a declaratory verdict, shall decide whether the treaty in question has partially or totally lost its binding force in consequence of changes in the conditions which brought about the treaty, or because it has become unfairly burdensome for one or more of the Contracting Parties.”

Dr. Pasvolsky commented that this proposal would amount to compulsory jurisdiction in this type of case.

At this point, Commander Stassen entered the meeting, and Mr. Hackworth restated the question whether the present court should be continued or a new court set up. Mr. Dunn asked if this related only to the personnel of the court; and Mr. Hackworth replied that it involved the organization of the court.

Mr. Dulles observed that Mr. Jessup had reported the impression that the British, Soviet and Chinese preferred to retain the present court. Mr. Jessup said that Mr. Fitzmaurice of the United Kingdom had told him yesterday that the Russians would be willing to continue the old court and also that the British and Chinese had the same point of view. Senator Connally asked if that position would preclude modifications. Mr. Jessup said that it assumed that modifications would be made.

Dr. Pasvolsky then asked about the states members of the present court who were not members of the United Nations. Mr. Hackworth said that the neutral countries which are parties to the present Statute presented a real difficulty, but that of course the enemy states could be handled. He suggested that the Statute be opened immediately to the neutral countries. Senator Connally asked if it would not be desirable to do so if a country qualified, as he thought that this would strengthen the organization. Mr. Hackworth agreed, as he thought the judicial process should be opened up to all countries. In his opinion, however, the Soviet Union would not allow Portugal, Spain and Switzerland to join the court. He said on the train coming out, the Russian representative had definitely questioned both Spain and Portugal. He wondered if it would be desirable to have the League take up with these people the matter of liquidating their interest in the court.

Representative Bloom asked if Russia would let Spain come in if Spain had a different government. Mr. Hackworth thought that Russia’s objection to Spain was directed at its present government. Mr. Dunn noted that it was important as a general practice to avoid suggesting that Spain be brought into any part of this organization.

Mr. Fahy stated that there should be a new court. He said that the present Permanent Court of International Justice is a creature of the League of Nations. He noted that this court would be a new court since it will arise out of the United Nations Charter. While the Statute of the present court would not be changed in many respects, nevertheless, that statute comes out of the United Nations Conference. An election of judges would have to be held and the court constituted under the statute would be under the new statute. In other words, whether it is called the Permanent Court of International Justice or the International Court of Justice, as stated in the Dumbarton Oaks Proposals, it would in substance be a new court. Mr. Fahy thought the main question was whether the old name be retained, since there would be continuity with regard to the statute in either event. Thus, the precedents created under the Statute of the Permanent Court of International Justice would be appropriate under the new statute.

He thought the sole question was whether there was any advantage in changing the name of the court. He noted that it was true that the American Bar Association preferred the old court and the old name; but he observed that most of those American Bar Association discussions had been in terms of American adherence to a World Court, without emphasis on the name of the court.

Senator Connally asked if the old court had not been named in numerous treaties as the forum to which various matters should be submitted. Mr. Fahy replied that that could be covered by a provision in the United Nations Charter to the effect that wherever the Permanent Court of International Justice was referred to in treaties, the new court should be deemed to be the court referred to. He stated that this would leave a question as to treaties in which one of the parties was not a member of the United Nations. However, he thought that this problem would exist even if the name of the old court were retained, since states not members of the United Nations might not be parties to the new statute.

Senator Connally asked if it were Mr. Fahy’s view that the name of the court were the only point of divergence. Mr. Fahy replied that one difficulty he had with respect to the old Statute was that it really would not be the old Statute if it were modified. He did not think this was a critical point however.

Senator Vandenberg thought that the Delegation should give Mr. Hackworth the option to proceed in either direction with respect to the statute. Senator Connally asked if the Delegation should hear the American Bar Association on this matter. Mr. Hackworth reported that Mr. Simmons’³⁷ attitude was that the American Bar Association would accept whatever the Delegation would decide here at San Francisco.

Senator Connally thought that the idea of continuity, especially with regard to judicial matters, is entitled to some weight. He thought it would be desirable if we could retain the old organization with pertinent modifications. Commander Stassen observed that there was no basic difference between the two positions. He thought that with regard to the old court, there was an asset in its precedents, an asset in its statute, and an asset in the fact that numerous countries had signed treaties referring matters to the court. On the other hand, the old court had the liability that there are countries now in it that we do not want in it; and also the fight over the old court in this country was a liability. He thought it would be sound to give the court a new name, to provide in the Charter that the United Nations accept this court as a substitute for the old court, that the precedents of the old court are accepted by the countries, and that the statute of the old court would be accepted with modifications. In this way, Commander Stassen thought you would have a revised court rather than a new or an old court.

Representative Bloom thought it would be a better talking and trading point for the United States to hold out for the new court at present, although he agreed that Mr. Hackworth and his advisers should be allowed to do what they think best. He felt that if the other three powers have agreed to the old court and we also agree to the old court, we have no further arguing point with them.

Mr. Armstrong asked Mr. Hackworth what Chief Justice Hughes, Chief Justice Stone, and Secretary Stimson had said in this respect. Mr. Hackworth stated that they had only been consulted with respect to nomination of judges.³⁸ Mr. McCloy stated that Secretary Stimson felt that there was not much difference between keeping the old court and creating a new court, although the Secretary had favored continuity.

Senator Connally thought it would be desirable to retain the court, but that it was not important. He then called for an expression of the Delegation’s views to Mr. Hackworth. Commander Stassen therefore moved that the option be left with Mr. Hackworth to proceed in either direction in Commission IV, with the following provisos: (1) if a new court were created, some provision must be made for protecting the treaties involving the present court; if the old court were retained, some provision must be made to keep out the countries which are not members of the United Nations.

Mr. Hackworth agreed to report back to the Delegation on this matter; Senator Connally stated that the motion made by Commander Stassen states the view of the United States Delegation on this point.

Nomination of Judges of the Court of Justice

Mr. Hackworth stated that the next question was whether the judges of the court should be nominated as at present by national groups or whether they should be nominated directly by the governments as the British had proposed. He stated that in the Committee of Jurists in Washington there had been a 16–16 vote on the motion to change the method of nomination.³⁹ He had held that the motion was lost, since the vote was divided. Senator Connally asked about the procedure of nomination through the panels of The Hague Court. Mr. Hackworth replied that under the Hague procedure, each country appoints a group of four of its nationals, and these groups decide upon the nominations. He said that the British want each government to make one nomination. Senator Connally asked who elected the judges; Mr. Hackworth replied that at present, the Assembly and the Council of the League of Nations. He noted an important consequence of the British proposal, to the effect that if the United States already had a national on the court, its right to nominate would be worthless because it could not nominate a Brazilian or some foreign national and it was clear that the Assembly and Council would not elect another United States national.

Senator Connally asked whether it would give the nominations a political tinge to allow the governments to nominate directly. Mr. Dulles thought this was an extremely important question. He noted that the United States would undoubtedly name some outstanding non-political person, but that the United States was as much interested in the other judges on the court as its own judge. Thus, to make it the kind of a court to which the United States would submit disputes, the court must be non-political in character. Mr. Dulles , therefore, recommended the method of nomination now in effect.

Senator Vandenberg asked about countries which are not members of the Hague Court; Mr. Hackworth replied that they used the same procedure as the Hague procedure for these nominations. Senator Connally inquired about states not members of the United Nations; Mr. Hackworth replied that a state would have to be a party to the statute of the court, even if it were not a member of the United Nations, in order to nominate a judge.

Commander Stassen thought that the Hague tribunal method was the best for the nomination of judges, and that the British proposal for nominations by governments was not acceptable. He thought perhaps the nomination by the Hague group would have to be qualified. For example, it might be made subject to objection by a respective government, who might declare the nominee persona non grata.

Mr. Fahy recalled that Chief Justice Stone and Chief Justice Hughes urged that the present method of nomination be retained. Senator Vandenberg and Dean Gildersleeve both stated agreement with this view.

Senator Connally then declared that it was the general view of the United States Delegation that the present method of nomination of judges of the court, provided in the Statute of the Permanent Court of International Justice, should be retained; that nominations of judges should be restricted to members of the United Nations. He therefore requested Mr. Hackworth to carry out this policy in the proceedings of Commission IV.

Representative Bloom asked if this created any difficulty under the United States Constitution, which provides specifically for one Supreme Court. He wondered if this international court, in being made a court of last resort would not be superior to the United States Supreme Court, if anybody cared to appeal a case to the international court. Senator Connally remarked that no individuals would appear before the international court. Mr. Hackworth pointed out that the world court was an international court with cognizance over disputes between states, whereas the Supreme Court was charged with jurisdiction over the internal affairs of the United States and did not have competence to settle disputes between the United States and other countries. He noted that the international court had the same type of jurisdiction as arbitral tribunals to which the United States had had recourse on many occasions. Senator Connally observed that the fields of jurisdiction of the two courts were quite separate. He therefore stated that the order of the Delegation, with respect to the nomination of judges, should stand for the present, and that Mr. Hackworth would report back to the Delegation.

Mr. Hackworth then read off the alternative drafts which he had prepared for Chapter VII of the Dumbarton Oaks Proposals (US Gen 22).⁴⁰ Mr. Hackworth observed that paragraph 6 of the draft for a new court attempted to tie in the treaties referring to the present court to the new court in so far as possible.⁴¹ Mr. Dulles asked if this provision took care of the point raised by Commander Stassen to the effect that the prior decisions of the Permanent Court of International Justice should have the same weight as decisions of the new court. Senator Connally doubted if it would be wise to make a statutory direction to the court. Mr. Dulles said he was merely suggesting that the same weight be given to the decisions of the old court, as would be given to the decisions of the new court. Mr. Fahy thought that the court should be free to give whatever weight it chose to these precedents, without a statutory direction. Commander Stassen thought that some language would be necessary, perhaps to the effect that the court “may” give the same weight to the prior precedents. Senator Connally observed that the decisions of the old court would be precedents, and that the court itself would go back to these precedents but should be free to change these precedents if it so desired. Commander Stassen said he assumed that the precedents of the old court would be preserved. Senator Connally observed that the decisions of the Permanent Court of International Justice would be most persuasive with the new court. Mr. Hackworth thought it was not necessary to mention these precedents because the court would have the right to look at those decisions as well as treatises on international law, and so forth. Senator Connally then asked if the Delegation wished to make some general statement with respect to the authority of the court. Representative Bloom thought it should be omitted, and that it could be inferred that the court is authorized to do what it wishes. Senator Vandenberg observed that the court would do that anyway. Commander Stassen then stated that he was willing to leave this question to be resolved in the course of the negotiations with the other countries. Senator Connally said that he was interested in giving the new court the same prestige as the old court.

Mr. Dunn then asked why the recommendation of the Security Council for admission of non-members of the United Nations to the court was required by paragraph 4 of Mr. Hackworth’s draft. Mr. Hackworth replied that this merely followed the Dumbarton Oaks Proposals; and that this provision was inserted because it was thought that it might be a political question as to Whether a state should be admitted to the court. Mr. Fahy noted that it would be necessary for the Security Council to determine the conditions under which the present enemy states would be admitted to membership in the court.

Revision of Chapter VIII, Section A, Paragraph 6, of the Dumbarton Oaks Proposals

Mr. Dulles called attention to the need to modify paragraph 6, Section A, Chapter VIII of the Dumbarton Oaks Proposals, providing for the reference of justiciable disputes to the court.⁴² He noted that as this provision now stands, it comes pretty close to compulsory jurisdiction. Mr. Hackworth commented that he had proposed an amendment to this provision the other day,⁴³ which would read: “Disputes which are susceptible of judicial determination should normally be referred to the International Court of Justice. The General Assembly and the Security Council should each be empowered to refer to the court, for advice, legal questions connected with other disputes.” Mr. Hackworth noted that the Dumbarton Oaks Proposals now provide only for advisory opinions at the request of the Security Council. Since the present Statute of the court authorizes both the Assembly and the Council to ask for advisory opinions, the Committee of Jurists felt that the Assembly should also have the right to ask for advisory opinions. This proposal would involve a change in the Dumbarton Oaks provision.

Mr. Dulles asked whether, under Section A, Chapter VIII of the Dumbarton Oaks Proposals, the Security Council had the power to decide whether disputes should be referred to the world court. Mr. Hackworth said that under this section the Security Council could only recommend that such action be taken. Mr. Dulles said that this is not so stated in Section A of Chapter VIII.

Veto Power—Investigation Procedure Under Chapter VIII, Section A

Senator Connally raised the question as to whether the veto power of the five permanent members of the Security Council applied to the investigation procedure of the Security Council, provided by paragraph 1 of Chapter VIII, Section A. The Senator contended that there was a conflict of opinion on this matter, with one group contending that the veto did not apply to this investigation procedure, and the other group contending that it did. Mr. Dulles thought that the unanimous vote of the five permanent members of the Security Council would be required for this investigation procedure, unless one of the permanent members was a party to the dispute, in which case that state would not have the veto power. Senator Vandenberg remarked that evidently there was nothing that could be done without the restriction of veto power.

Commander Stassen took a hypothetical case of a dispute between Italy and Albania, and asked if the five great powers would have to agree to investigation of the dispute by the Security Council. Mr. Dulles replied that the five powers must agree in such a case. Senator Connally thought this was a ticklish point, because in his opinion investigation was a very valuable power. Mr. Dulles commented that several states were going to raise that proposition. Senator Connally observed that he was assigned to Commission III and he wanted to know about this matter. Dr. Pasvolsky said that the investigation procedure under paragraph 1 of Chapter VIII, Section A, was subject to the veto of the five powers. He said that this would be true unless paragraph 1, Chapter VIII, Section A, were specifically excluded from the veto power and made a matter of procedure. Mr. Dulles commented that the Dutch and Belgians were going to push this proposal; and Commander Stassen said the Australians would do likewise.

Senator Connally commented that frequently the application of the investigation procedure will dissolve a dispute before it goes any further. Commander Stassen said he agreed thoroughly with Senator Connally. He did not think, however, that the United States should advance a proposal on this, but should explore the suggestions made by the other countries. The Commander noted that at present the veto power of the five permanent members of the Security Council would apply in all cases except: (1) matters of procedure and (2) investigatory matters, when one of the five powers is a party to the dispute, in which event that state would not have a veto. Dr. Pasvolsky stated that Commander Stassen’s analysis was correct.

Senator Connally noted that a number of proposals had been advanced with regard to Chapter VIII, although the United States had only proposed several unimportant amendments. He wondered what some of the issues, with respect to the Security Council, were going to be. Dr. Pasvolsky observed that the delegation was waiting to receive the papers containing the foreign proposals from the Secretariat. Senator Connally said it seemed to him that Chapter VIII was going to be fairly simple. Dr. Pasvolsky observed that a lot of proposals were being made with respect to Chapter VIII. Mr. Dulles stated that there was pressure to shift the second paragraph of Chapter VIII, Section B into Chapter VIII, Section A, so that a state could be branded as an aggressor by the Security Council without the application of the veto power of the five great states. Senator Vandenberg asked if this would not override the Yalta decision. Mr. Dulles stated that the small powers were willing to accept the veto of the great powers over decisions of action, but not over the power to brand a country as an aggressor. Dr. Pasvolsky commented that the French Delegation was moving to have all of Section A of Chapter VIII declared procedural. Mr. Dulles stated that according to the Yalta Agreement,⁴⁴ the unanimous vote of the five great powers would be necessary for action by the Security Council under Chapter VIII, Section B. Section B contains the provision by which a great power would be labeled an aggressor; and it was this provision that the small powers wanted shifted into Section A. Senator Vandenberg again asked if that change would conflict with the Yalta agreement. Dr. Pasvolsky thought this proposal would have to be considered jointly by the four sponsoring powers.

Reference of Justiciable Disputes To the International Court

Mr. Dulles asked the Delegation to go back to the question of the language of Chapter VIII, Section A, paragraph 6. Mr. Hackworth read his proposed amendments to this paragraph again: “6. Disputes which are susceptible of judicial determination should normally be referred to the International Court of Justice.…” Mr. Dulles asked if that provision were intended to alter the status of the parties to the world court. Mr. Hackworth replied that a case could be referred to the court by agreement of parties. Mr. Dulles observed that this language does not say that, but rather gives the Security Council power to refer cases to the court. Commander Stassen agreed. Mr. Fahy proposed that this language should make reference of disputes to the court subject to the provisions of Article 36 of the Statute of the court. Commander Stassen moved that the Delegation adopt that qualification to clarify Mr. Dulles’ point, and that it be added to paragraph 6 of Chapter VIII, Section A. Senator Connally asked if this proposal would have to be transmitted to Commission III from the Jurists. Senator Connally asked the Delegation if it were agreed that this proposal be adopted with the instructions that it be transmitted from Commission IV to Commission III.⁴⁵ The Delegation agreed.

Advisory Opinions

Mr. Hackworth then called attention to the proposed change of Chapter VIII, Section A, paragraph 6, which would empower the General Assembly, as well as the Security Council, to request advisory opinions of the international court. Senator Connally observed that it was his understanding that these bodies could only refer those matters to the international court which were within their own jurisdiction. Mr. Hackworth agreed. He noted that there had been a demand on the part of the ILO and other international organizations to be empowered to request advisory opinions of the court. It was thought that such organizations could get the Council or the Assembly to request advisory opinions for them. Senator Connally thought that such organizations should not have this power, and that it was important for the prestige of the Council and the Assembly that these organizations should not bypass them and go directly to the court. Mr. Hackworth said that had been agreed upon; and Commander Stassen said he favored limiting this power to the Assembly and the Council. Mr. Dulles asked if the two Senators agreed that the General Assembly should be authorized to ask for advisory opinions. Senator Connally thought it would probably strengthen their hands in the Senate to give that right to the General Assembly, as the General Assembly is the more popular body of the organization. He noted that sentiment in the Senate and among lawyers generally was opposed to practice of advisory opinions; and that the United States Supreme Court itself followed the theory that it could only act in an actual case of litigation. However, the Senator felt that advisory opinions should be allowed in the International Organization, as they might be useful in the early termination of disputes.

Congressman Bloom inquired as to the weight of an advisory opinion, that is, if an advisory opinion is binding. Mr. Hackworth replied that an advisory opinion had no binding effect. Senator Connally noted that the word “advisory” carried the implication that the opinion had no binding effect.

In response to Senator Connally’s inquiry, the Delegation unanimously agreed to adopt the recommendation to insert “General Assembly” in Chapter VIII, Section A, paragraph 6, second sentence.

Clearance of the United States Draft of Chapter VII

Mr. Hackworth asked if the Delegation would have to clear the draft of Chapter VII of the Dumbarton Oaks Proposals with the other three sponsoring powers, or if it could come out of the Fourth Commission. He asked for Dr. Pasvolsky’s view on this matter. Dr. Pasvolsky thought it was proper for Commission IV to make this recommendation in order to bring Chapter VII of the proposals in conformity with the statute of the court. He did not think that this required conversation between the four sponsoring powers; but felt that it could properly come up in Committee 1 of Commission IV. Commander Stassen asked if we should not at least inform the other powers as to our suggestions. Dr. Pasvolsky proposed that Mr. Hackworth get in touch with the representatives of those other powers who were on Committee 1 of Commission IV. He did not think this should be sent to the Steering Committee because it was not a formal proposal of an amendment and was not subject to the Friday deadline. He felt that this was a proposal which emerged out of the work of the Committee of Jurists. Mr. Hackworth thought it was largely a drafting matter for Commission IV.

Mr. Notter noted that the recommendation that the General Assembly be empowered to ask for advisory opinions constituted an amendment to the Dumbarton Oaks Proposals. Mr. Fahy thought that Mr. Notter had a point, in that this was a substantive change, but observed that the Netherlands Delegation is making this proposal. Senator Connally commented that Dr. Pasvolsky’s idea was that a report of Commission IV to the Conference could cover this matter. Dr. Pasvolsky thought that Commission IV could merely report that these changes were necessary to bring the Charter into conformity with the Statute of the Court.

Reference to the Court in Chapter VIII, Section A

Mr. Dulles thought that paragraph 6 of Chapter VIII, Section A, should be moved into Chapter VII of the Dumbarton Oaks Proposals, since this paragraph related to the court, and Chapter VIII, Section A, seemed to relate to the pacific settlement of disputes by the Security Council. Mr. Hackworth pointed out that Chapter VIII, Section A, covers the whole structure of pacific settlement of international disputes, and that the court is one of the principal means of pacific settlement in addition to such procedures as negotiation, conciliation and arbitration. While paragraph 6 of Section A relates to judicial settlement of disputes, he observed that this is an elaboration of paragraph 3 of Chapter VIII, Section A. He thought that it would be possible to have a duplicate provision in Chapter VII of the Proposals, but he wondered if paragraph 6 of Chapter VIII, Section A really does not belong where it is now. Commander Stassen thought this matter could come up later when the draft was harmonized. Senator Connally stated that he agreed with Mr. Hackworth and felt that a reference to the court is necessary in Chapter VIII, Section A. Mr. Dulles noted that the type of question that would be covered by an advisory opinion probably would not be involved in the pacific settlement of disputes. He also noted that the General Assembly was being given the power to ask for advisory opinions; and this body had no role in the pacific settlement of disputes. Senator Connally stated that he thought that the International Court of Justice ought to be mentioned in Chapter VIII, Section A as one method of pacific settlement of disputes.

Release of Proposals to the Press

Senator Connally stated that Mr. Byington wished to know which of the United Nations proposals should be released to the press.

Mr. Pasvolsky stated that Mr. Dunn and he had held consultations on this question, and that there were not many comments on our proposals from the Russians, but that there were a good many from the British and the French, who are concerned particularly with Chapters III and VI.

Comments by U.K., U.S.S.R., China and France on U.S. Proposals

Mr. Pasvolsky said that with respect to the Chapter on the Secretariat they feel very strongly about the addition of the word “specific”, and also with respect to the election of new members. As it now stands, he pointed out, the Security Council is powerless to elect a new member, and the Security Council can no longer act, for example, with regard to Germany (under Chapters V and VI). Mr. Pasvolsky said that they also have some questions. The British raised a question with respect to paragraph 6, Chapter V. They feel strongly that at least the word “international” should be inserted in this paragraph. Otherwise there might be interference with internal affairs. The British, Chinese, and Russians, he said, take the position that it is confusing to have references to another document in the body of a document of this kind. There would be two sets of principles if there is reference to the Declaration by the United Nations. He suggested, therefore, that the principles which we were to make applicable should be selected from the Atlantic Charter and incorporated in the Chapter on Principles or in the Preamble. The British, he said, take the position that this is included in the original text.

Mr. Pasvolsky also stated that Mr. Sobolev had sent him a note two days ago inquiring whether it was true that the United States intended to make a proposal that the General Assembly should have the right to revise treaties. Mr. Pasvolsky said that he had replied that this is not true, but that we did intend to propose that the General Assembly should have the right to review and to make recommendations on treaties. This, said Mr. Pasvolsky , seemed to satisfy Mr. Sobolev at that time. Yesterday, however, Mr. Sobolev informed Mr. Pasvolsky that he had studied the United States proposal carefully and that he was now inclined to think that the United States’ was extending the picture and that the subject would have to be talked over. He added that at yesterday’s meeting of the Committee of Five⁴⁶ one of the junior members of the Soviet Delegation represented them, and he had no power, but listened attentively to the British views.

Mr. Pasvolsky continued that with respect to Chapter I on Purposes, the Chinese had raised the point that the language is now somewhat different from the Dumbarton Oaks text in that “in accordance with” is suggested as against “with due regard for”. The British favored the Chinese formulation, i.e. “with due regard for”. The Russians, he added, raised a question about the proposed use of “justice and equity”, and this was somewhat difficult to explain.

With respect to paragraph 2, Chapter I, the Chinese had asked about “development” and the British had asked why “appropriate” had been omitted. It was explained that this was done to avoid redundancy, and they agreed.

With respect to paragraph 3 of this Chapter the Russians had raised a question regarding the repetition of the phrase “human rights, etc.”

With respect to Chapter II the British and Chinese were completely in accord with the first American proposal, but with respect to paragraph 3 of this Chapter questions were raised by all three of the other sponsoring governments. They took the position that the new language weakened the document by stating the proposals negatively rather than positively, and thereby avoiding an obligation. Originally, this meant an obligation to settle only by peaceful means, and they preferred the positive approach to the negative. The Russians question whether in the new language there is really a repetition of paragraphs 3 and 4. Mr. Pasvolsky stated that he had explained that there is a difference even in the negative formulation. Paragraph 3, he said, refers only to where the disputes exist, while paragraph 4 refers to any situation.

Senator Vandenberg inquired what our point had been in changing it around. Mr. Dulles stated that it had been his point, since the language in the original formulation was in effect only an obligation to accept compulsory settlement, for example, an immigration dispute as with Japan. In the original language we would be under an obligation to accept arbitration on such matters.

Commander Stassen inquired whether Mr. Dulles did not think that this would be an injunction only that we should not resort to war, and nothing else. He stated that he did not see that the construction put on the original language by Mr. Dulles was correct.

Mr. Dulles stated that when we change the language we should make certain that its meaning is clear.

Commander Stassen stated that the effect of a change would be to give the layman the impression that the document had been weakened, and Mr. Dulles stated that we have weakened it.

Mr. Hackworth expressed the view that we could make a concession on this point, since the British, Chinese, and Russians are opposed to the new formulation. Mr. Dulles stated that he would be happy to see nations settle all of their disputes by peaceful means.

Mr. Hackworth suggested that it would be possible to merely let the question sleep.

Mr. Pasvolsky stated that with respect to paragraph 5, Chapter II, there had been no question.

With regard to paragraph 6, however, relating to assistance, it had been questioned whether, if the organization has taken action against a country, other countries might give that country assistance, which might in effect interfere with or nullify the action of the organization. The British, he said, were vehement on this point. Their position is that when the organization takes action against a state, no interference should be permitted. They all, he reported, thought that the paragraph would definitely be weakened by the suggested new language.

Mr. Pasvolsky stated that there was an even stronger reaction to the suggested rewording to the next paragraph. For example, he said, if two member states attempted to go to war with each other the organization could see to it that they would settle the dispute by peaceful means. The suggested new language, however, does not seem to cover that case in the estimation of the other powers. They point out that there is a difference between positive and negative obligations.

Release of Proposals to the Press

Mr. MacLeish observed that the publication or non-publication of the American proposals is a very urgent matter.…

. . . . . . .

Mr. Pasvolsky pointed out that the United States is in a peculiar position on this matter—a position of great responsibility. Mr. Molotov , on the day previous, had made passing reference to a “bloc.”⁴⁷ In Mr. Pasvolsky’s view the United States should not put itself in the same position as countries which were not present at Dumbarton Oaks. The United States, he said, could not afford to just throw out the proposals or take them back. This Delegation, he urged, should be sure of its proposals. Moreover, it should be borne in mind that the United States will have to pay a price for any support given to its proposals.

Mr. MacLeish called attention to the background of the situation. The Dumbarton Oaks Proposals, he said, had been placed before the people of the country. The precedent on which the government has operated with respect to these matters is complete frankness with the people. It seemed to Mr. MacLeish to be helpful, rather than harmful, to continue this policy. The American consultants, he added, wished to know if the United States Delegation is willing to take one position or another.…

. . . . . . .

Mr. Pasvolsky stated that none of the participants at Dumbarton Oaks had announced their proposals at this time. He added that it has been taken for granted by the other delegations that we would consult first and then talk about the proposals publicly.

. . . . . . .

Mr. Bowman urged that the Delegation should not run the risk of embarrassing its relations with other governments. These other governments, he said, should be consulted. There are, he added, two alternative procedures—the first would be mutual agreement among the governments to release; the other would be to inform them that the United States has decided to release its proposals.

Mr. Pasvolsky stated that there are several considerations to bear in mind: (1) No one is against telling the people of the country what the Delegation is for. The only issue is that they be told at the right time. The right time would be when the Delegation itself is ready to negotiate on them. (2) After Dumbarton Oaks the Government went all out in its campaign to acquaint the people with the nature of these proposals. (3) The only important point at issue is that the United States cannot afford to put out several series of proposals. When the Delegation is agreed on the proposals then all the members should do their “damndest” to get them adopted and to acquaint the people with them. (4) Before the end of the week all of the proposals must be in the hands of the International Secretariat, and that is the time to make them public. (5) Other governments still want to discuss points in the American proposals. They should be permitted to do so before they are confronted with a fait accompli.

. . . . . . .

Mr. Pasvolsky commented that the United States will ask no one’s permission to publish anything that it may wish to publish. On this matter, he said, the Delegation would be guided solely by its own position. It would, however, be very discourteous not to inform the other governments if we intend to release our proposals. Mr. Pasvolsky went on to suggest that the United States Delegation meeting might be held later in the day. By that time the British and Chinese comments would be available. The Russian comments are not yet available. The Delegation could go over the proposals in the light of the comments submitted by other governments and could determine if it might want to make any changes.…

. . . . . . .

Equal Opportunity for Men and Women

Dean Gildersleeve stated that she wished to put a question for the purpose of information. Article 7 of the Covenant of the League of Nations provided that all positions in the Secretariat could be open equally to men and women. Some of the Delegation, she said, are taking the position that this should be included in the new Charter. Had this question ever arisen in the course of the Dumbarton Oaks discussions?

Mr. Bowman replied that the question had been taken up at Dumbarton Oaks and at the end had been treated rather facetiously. Organized women’s groups, he said, had brought pressure to bear at Versailles and had pressed Woodrow Wilson to do something on this matter. This was thought to be a political issue of great importance at that time, but the progress which women have made since Versailles makes this issue now a completely dead one.

Dean Gildersleeve pointed out that some of the other nations do not feel this way, however.

Senator Vandenberg noted that if this issue is pushed, a corollary issue relating to race, color or creed will inevitably arise.

Mr. Bowman replied that this had been held in mind in considering the sex issue.

Amendment and Withdrawal

Senator Connally pointed out that an outstanding question is that of a proposal for calling a convention to amend the Charter. This, he said, would be an important provision. Somewhere there should be authority to call a conference for a complete revision of the Charter whenever this would become necessary.

Senator Vandenberg asked where the United States Delegation stands on the question of withdrawal and Mr. Pasvolsky stated that the United States was not proposing anything on this matter.

Representative Bloom inquired whether the Delegation should not be on the lookout for things which it might expect other countries to propose but which they may fail to do.

[Here follows discussion on relations with Consultants⁴⁸ and on trusteeship.]

The meeting adjourned at 12:10 p.m.

33. See minutes of the meeting of April 30, 9:30 a.m., p. 488.
34. The Four-Power Deputies held four consultative meetings on suggested amendments to Dumbarton Oaks Proposals, April 29–May 2; notes not printed.
35. J. López Oliván.
36. Doc. 2, G/7(e), May 2, UNCIO Documents, vol. 3, p. 239.
37. David A. Simmons, President, American Bar Association; Consultant, United States delegation.
38. See footnote 31, p. 270.
39. Jurist 57, G/45, April 16, UNCIO Documents, vol. 14, p. 195.
40. Draft of April 30 not printed (U.S. Gen. 22).
41. Draft article 6 read as follows: “When a treaty or other agreement in force between parties to the Statute provides for reference of any matter to the Permanent Court of International Justice or to an officer of that Court, the International Court of Justice shall be deemed to be the Court referred to in such treaty or agreement.”
42. For previous discussions on this subject by the United States delegation, see minutes of meetings of April 12, 9 a.m., and April 30, 9:30 a.m., pp. 269 and 488, respectively.
43. Jurist 45, G/34, April 12, UNCIO Documents, vol. 14, pp. 177–178.
44. Conferences at Malta and Yalta, p. 976.
45. Doc. 146, IV/l/5, May 8, UNCIO Documents, vol. 13, p. 142.
46. Reference is apparently to the third meeting of the Four-Power Deputies, May 1, 6:30 p.m.; notes not printed.
47. See Doc. 50, ST/2, May 1, UNCIO Documents, vol. 5, p. 175.
48. For a list of names of the consultants, representatives of the forty-two national organizations, see Charter of the United Nations: Report to the President on the results of the San Francisco Conference by the Chairman of the United States Delegation, The Secretary of State, June 26, 1945 (Department of State publication No. 2349), p. 262.