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

501.BC/4–846

Memorandum by the Counselor of the Department (Cohen)

[Washington, April 8, 1946.]

The Determination of the Right To Vote

Article 27(3) of the Charter provides that in decisions under Chapter VI a party to a dispute shall abstain from voting.

There is no express provision in the Charter determining whether a matter constitutes a dispute or requires a determination of that question before the issue arises as to the right of a party to vote on a particular issue.

In these circumstances if the right of a member of the Council is challenged, it would seem that the Chairman in determining initially the right of the challenged member to vote should determine (1) whether the matter before the Council is a dispute and (2) whether the member whose vote is challenged is a party to the dispute. The Chairman’s determination can of course be overruled by the Council by a procedural vote. All decisions of the Chairman are procedural and no decision of the Chairman should require a substantive vote to overrule.

To require a substantive vote to overrule the Chairman would obviously place excessive power in the hand of the Chairman.

To require a substantive vote to sustain the Chairman in a case of this kind would make it impossible to disqualify a member from voting in a dispute to which it is a party without its consent. Such a result was obviously never contemplated by the framers of the Charter.

The Charter is clear and explicit. It provides that a party to a dispute shall abstain from voting under Chapter 6. It does not say that a member may vote unless the Council affirmatively determines that it is a party to a dispute.

When, therefore, a member’s right to vote is challenged, the Chairman must rule whether or not the member has a right to vote under the Charter. If the Chairman’s determination is not satisfactory to the Council, it can be overruled by a procedural vote.⁶

6. Notation by Mr. Hiss on transmittal “chit”: “paper 2 doesn’t cover a ‘situation’”. A third paper drafted by Mr. Cohen and transmitted to Mr. Hiss via Mr. Bancroft is not attached to the two documents under consideration and has not been found in the Department’s files.