Foreign Relations of the United States, 1946, General; the United Nations, Volume I

IO Files: US/S/CE/3

Memorandum by the Director of the Office of Special Political Affairs (Hiss)⁹⁸

secret

[New York,] March 28, 1946.

Comments on the “Dispute” and “Situation” Problem⁹⁹

Purposes of Article 27(3) of the Charter Are Clear

As Mr. Noyes demonstrates in his memorandum of March 23¹ (first two paragraphs of item 2), it is clear that the purpose of the abstention provision in Article 27(3) was to avoid having any Power a judge in its own case.

However, it does not follow from this that every determination of whether a particular case is a dispute turns upon this objective. There can be other distinct but valid reasons why a member nation may wish to insist that it is not a party to a dispute.

From the point of view of the abstention provision in Article 27(3) there would be good reasons for insisting that the determination of whether or not a dispute exists, and who the parties to that dispute may be, should be determined by procedural vote. Certainly no permanent member of the Council could argue with good grace that it should have the right to veto a determination that it should not vote in questions arising under Chapter VI.² On the other hand, from the point of view of the substantive determination (for other purposes of the Charter) of whether a particular case is or is not a dispute, there is good ground for the argument that this should not be regarded as a matter of mere procedure. The apparent impasse which results from these considerations is of significance only insofar as it affects the determination of who may and may not vote on particular motions. The impasse was solved at London by the British and French representatives waiving any right to vote without admitting that the matter was a dispute. This experience indicates a practical reaction to the problem which might be generalized.

Suggested Formula for Determining Abstention

On the basis of the foregoing analysis, it would appear that a solution would be found by concentrating on defining by rule those who should abstain in specified situations. The rules might recite the purpose of the abstention provision in Article 27(3) along the lines indicated above, and then provide that to give effect to these provisions the principle of abstention should apply in cases analagous to disputes, i.e. where charges are officially preferred by complaining State regardless of whether or not the case is technically a dispute for the purposes of the Charter. Obviously the abstention provision would apply in any case which is technically found to be a dispute. However, where no finding that a dispute technically exists has been made, the purposes of the abstention provision, Article 27(3), can best be effectuated by a determination of qualification to vote separate and apart from a determination of whether a particular case is a dispute. This separate determination would not involve a debatable interpretation of the Charter, that being generally agreed to by hypothesis if there is agreement as to the purposes of the abstention provision in Article 27(3). Consequently, this determination may appropriately be made by a procedural vote.

This is, in effect, exactly what occurred in London in the Syrian-Lebanese case by reason of the voluntary action of the British and French representatives.³ There, there was no technical finding that a dispute existed, and the British and French Governments might very well have resisted any such finding for general purposes of the Charter. At the same time they recognized that they should not participate in voting in the case; made no assertion that they had a right to veto any decision that they should not vote; and, therefore, in substance preferred to be guided on this point by majority sentiment of the Council.

Course To Be Followed If the Above Proves Unacceptable

It would seem that even if the above suggestion proves unacceptable in the Committee of Experts, it would still be valuable for us to have presented it in order to clarify the basic issue involved and to try to separate two distinct concepts that are involved. If it is not accepted, we will probably have to free [face?] frankly the fact that we have reached an impasse on the determination of voting qualification; but if the general purpose of the abstention provision, Article 27(3), receives general agreement, an impasse may prove to be not too important. It would then be plain that no permanent member which insisted upon vetoing a resolution whose sole purpose was stated to be the disqualification of that member from voting would be placed in a most untenable position vis-à-vis world opinion, and this would also apply to votes by that member cast on subsequent substantive resolutions under Chapter VI. This result would salvage all that can practically be salvaged in the event of impasse in any event and would prevent the opprobrium to which the Council would subject itself if the matter were left at the impasse stage with no procedure settled for an indefinite period.

In other words, if the suggestions proposed above are not accepted, our next course will simply be to agree to rules of procedure which do not specify the nature of the vote required in determining, for the sole purpose of settling voting qualifications, whether a dispute exists. Such rules would of course still leave open voluntary action of the kind taken by the British and French in the Syrian-Lebanese case, thus still making it possible to settle the issue of voting qualifications without determining whether a dispute exists—which would mean effectuating the purpose of Article 27(3) in situations as well as all technical disputes.

98. Presumably Mr. Hiss was in New York with the Permanent Delegation at the time he drafted this paper.
99. This subject insofar as it related to the voting problem had been under study at the Permanent Delegation from the time the Delegation was established at New York in mid-March, with specific reference to the issue between the Soviet Union and Iran to be considered by the Security Council when it re-convened at New York on March 25; see vol. vii, pp. 289 ff.
1. Not printed. Charles P. Noyes was assigned to the Permament Delegation as a special assistant to the United States Representative (Stettinius); this position was later formalized to constitute an advisorship on Security Council matters.
2. Chapter VI of the Charter is concerned with the pacific settlement of disputes and relates therefore to the conciliatory function of the Council as contrasted with the Council’s “policeman” function under Chapter VII (action with respect to threats to the peace, breaches of the peace, and acts of aggression).
3. For documentation on this subject, see vol. vii, pp. 751 ff.