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

IO Files: US/A/C.1/18

United States Delegation Working Paper⁹⁴

confidential

[New York,] November 4, 1946.

United States Proposals for Rules of Procedure of the Security Council⁹⁵

A. Rule Listing Procedural Matters:

Decisions of the Security Council on the following matters, including all other matters falling within the general categories set forth below, shall be deemed procedural and the vote thereon shall be in accordance with Article 27 (2) of the Charter.

1. Decisions of the Security Council relating to its meetings and those of the General Assembly. This category shall include such decisions as those pertaining to (a) the time and place of regular and periodic meetings; (b) whether a meeting should be public or private; (c) what records of meetings should be kept, the classification thereof and the right of access thereto, etc; (d) convocation of a meeting of the General Assembly; (e) the time and place for a general conference for the purpose of revising the Charter pursuant to Article 109.

Comment:

Article 28 of the Charter providing that the Council “shall be so organized as to be able to function continuously” comes under the heading “Procedure” in the Charter. The Four Power Statement of June 7, 1945, Part I, paragraph 2, states that a procedural vote will be used by the Security Council to “select the times and places of its regular and special meetings.”

It was agreed in the Committee of Five Deputies of the Heads of Delegations at San Francisco that the convocation of a special session of the General Assembly was a procedural matter. (Meetings on May 18 and May 29, 1945). See Article 20 of Charter.⁹⁶

The practice of the Council has been to decide on the time and place of meetings of the Security Council, and on the records of meetings without a formal vote or by a procedural vote.

2. Decisions of the Security Council relating to the agenda of its meetings and to the determination of items of which it is seized. This category shall include such decisions as those pertaining to (a) the adoption of the agenda or the addition of an item to or deletion of an item from the agenda; (b) the inclusion of a matter among, or the elimination of a matter from, those of which the Security Council is seized; (c) the Secretary-General’s notification to the General Assembly pursuant to Article 12.

Comment:

Part I, paragraph 3 of the Four Power Statement provides that the veto power cannot be used to prevent bringing a matter to the attention of the Security Council. It has been the practice of the Council to adopt the agenda without taking a formal vote; in cases where a vote was taken the decision has been made by a procedural vote.

Similarly all the members of the Council have expressed the view that removing an item from the agenda is a procedural decision. Under Rule 10, an item which is being considered remains on the agenda unless the Council votes to remove it.

The decision to include a matter among or eliminate a matter from those of which the Security Council is seized is part of the decision to consider or to terminate the consideration of a matter and accordingly is likewise procedural.

3. Decisions relating to credentials. This category shall include decisions relating to the credentials of a representative on the Security Council or of a representative of any other State invited to participate in its meetings.

Comment:

It has been the practice of the Council to approve the Secretary-General’s report on credentials without a formal vote.

4. Decisions relating to the presidency of the Security Council. This category shall include such decisions as those pertaining to the manner of selecting the President, his term of office, the rights, duties, and responsibilities of his office.

Comment:

Article 30 of the Charter authorizing the Security Council to determine the method of selecting its President comes under the heading “Procedure” in the Charter. See also Four Power Statement, Part I, paragraph 2 Which states that the Council will by a vote of any seven of its members “determine the method of selecting its President.”

5. Decisions of the Security Council on questions of parliamentary procedure. This category shall include such decisions as those pertaining to (a) rulings by the President on points of order; (b) the precedence of principal motions and draft resolutions; (c) the order in which amendments to motions or draft resolutions are to be voted upon; (d) the motions listed in Rule 33 and similar parliamentary motions; (e) requests to members of the Secretariat or to other persons for information or for other assistance.

Comment:

All of these matters relate to parliamentary conduct of the discussions in the Security Council. Primary responsibility for decisions of this type rests on the President in his capacity as presiding officer of the Security Council. The authority which the Security Council reserves to itself in this area and does not delegate to the President is clearly procedural and has been so regarded in the past proceedings of the Security Council.

6. Decisions relating to invitations issued by the Security Council to States to participate in its discussions. This category shall include such decisions as those pertaining to (a) invitations to non-members of the Security Council to participate pursuant to Articles 31, 32, and 35 (2) of the Charter; (b) the conditions of such participations.

Comment:

This category is expressly covered by Part I, paragraph 2 of the Four Power Statement which states that the Security Council will by a vote of any seven of its members “invite a member of the Organization not represented on the Council to participate in its discussions when that member’s interests are specially affected; and invite any state when it is a party to a dispute being considered by the Council to participate in the discussion relating to that dispute.”

The practice of the Council has been to invite a non-member of the Security Council to participate without the taking of a formal vote; when a formal vote was taken the decision was made by procedural vote.

7. Decisions relating to the procedures for dealing with applications for membership in the United Nations.

Comment:

Rule 58 provides that except where the Security Council decides otherwise, an application shall be referred to a Committee and the Council has followed the method provided in this rule. It seems clear that a decision to use some other procedure than that which is specified in Rule 58 would be procedural.

8. Decisions concerning relationships with other organs of the United Nations. This category shall include such decisions as those relating to (a) the establishment of such relationships; (b) approval of annual and special reports to the General Assembly.

Comment:

It seems clear that questions relating to the methods of establishing and conducting relations among the various organs of the United Nations are procedural. This category would not include a decision to refer a matter from the Security Council to the General Assembly.

Inasmuch as reports of the Security Council should record past proceedings of the Council rather than contain recommendations this approval by the Council should be by procedural vote.

9. Decisions on all matters relating to the election of Judges of the International Court of Justice excepting where a different voting procedure is provided in Article 10 (2) of the Statute of the Court.

Comment:

Article 10 (2) of the Court provides that the Security Council shall elect judges and appoint members of a joint conference by an absolute majority of votes “without any distinction between permanent and non-permanent members of the Security Council.”

It would follow that decisions on matters purely incidental to the election of Judges such as the dates of special elections or questions of procedure in connection with the balloting should not require more than a procedural majority of the Council. Matters on which the Security Council would be required to vote are listed in Article 12 and Article 4, paragraph 3 of the Statute of the Court.

Such incidental decisions as were taken in the Council during the election of judges in February 1946 were made without formal vote.

10. Decisions relating to the conditions under which a State not a member of the United Nations may become a party to the Statute of the International Court under Article 93 of the Charter, and the conditions under which the Court shall be opened to States not parties to the Statute under Article 35 of the Statute of the International Court of Justice.

11. Decisions concerning the creation of subsidiary organs, and their relation to the Security Council. This category shall include such decisions as those pertaining to (a) the appointment of any committee or commission, or of the Secretary-General as Rapporteur for a specified question; (b) the approval of procedures of committees and commissions established by the Security Council.

Comment:

Article 29 of the Charter authorizing the establishment of subsidiary organs is one of the Articles coming under the heading “Procedure.” The Committee of Five Deputies of Heads of Delegations at San Francisco tentatively agreed on May 27, 1945 that this matter was procedural.⁹⁷

The resolution establishing the Atomic Energy Commission specified that its Rules of Procedure should be approved by the Security Council by a procedural vote and the Security Council has established this precedent.

12. Decisions of the Security Council relating to the adoption, alteration or suspension of its Rules of Procedure.

Comment:

This matter is specifically covered in paragraph 2 of Part I of the Four Power Declaration which states that the Security Council may by a vote of any seven of its members “adopt or alter its Rules of Procedure.” The power to alter would include the power to suspend.⁹⁸

13. All other decisions of the Security Council not involving its taking direct measures in connection with settlement of disputes, adjustment of situations likely to lead to disputes, determination of threats to peace, removal of threats to the peace, and suppression of breaches of the peace.

Comment:

Part I, paragraph 1 of the Four Power Statement provides as follows: “The Yalta voting formula recognizes that the Security Council, in discharging its responsibilities for the maintenance of international peace and security, will have two broad groups of functions. Under Chapter VIII, the Council will have to make decisions which involve its taking direct measures in connection with settlement of disputes, adjustment of situations likely to lead to disputes, determination of threats to peace, removal of threats to the peace, and suppression of breaches of the peace. It will also have to make decisions which do not involve the taking of such measures. The Yalta formula provides that the second of these two groups of decisions will be governed by a procedural vote—that is, the vote of any seven members. The first group of decisions will be governed by a qualified vote—that is, the vote of seven members, subject to the proviso that in decisions under Section A and a part of Section C of Chapter VIII parties to a dispute shall abstain from voting.”

B. Rule Relating to Abstention From Voting Under Article 27 (3)

In accordance with Article 27 (3) a party to a dispute or a party involved in a situation shall abstain from voting on non-procedural matters under Chapter VI or paragraph 3 of Article 52 relating to such dispute or situation. If prior to or immediately following the vote on such decision, question is raised as to whether a member of the Security Council is required under the Charter to abstain from voting as a party to the dispute or involved in the situation the President shall rule whether that member is required to abstain from voting.

If after the president’s ruling a vote is requested, the question whether the member is required to abstain from voting shall be submitted to the Security Council under Article 27 (2). The ruling shall stand as the decision of the Security Council, unless by an affirmative vote of seven members the Council decides in a contrary sense.

In the event that question is raised as to whether more than one member is required under the Charter to abstain from voting the Security Council’s decision as to each such member shall be made separately.

Comment:

The injunction contained in Article 27 (3) of the Charter that a party to a dispute shall abstain from voting was designed to give effect to the principle that a member of the Council should not be a judge in its own cause. That principle, which is a fundamental of the Yalta voting formula and which, as was pointed out in the Four Power Statement, was an important distinguishing feature between the Yalta formula and the practice of the Council of the League of Nations, should be applied whether a particular case before the Security Council is labelled a dispute or a situation.

The distinction that is made in other articles of the Charter between a situation and a dispute was not intended to prevail in derogation of the Charter provision which enjoins the parties to a case before the Council to abstain from voting on non-procedural decisions relating to that case.

The Charter specifically enjoins a party to a dispute to abstain from voting. This can only mean that the vote of the party must not be included in recording votes on non-procedural decisions. It means further that no individual member of the Council should be permitted to prevent the operation of the Charter injunction.

While this injunction is absolute, and while the Charter makes no provision for a determination by the Council as to whether a particular member is in fact a party, some method for determining whether a vote should be counted is essential.

In view of the fact that no individual member can be permitted to prevent the operation of the Charter injunction, this question should not be determined by a non-procedural vote. Moreover, the U.S. is convinced that this determination is in the truest sense procedural. It is a decision that clearly does not involve the taking of direct measures in connection with the settlement of the case but rather determines in what manner the vote of the Security Council shall be taken when the substantive decision comes to a vote.

C. Rule Providing that Voluntary Abstention From Voting Shall Not Be Considered the Equivalent of a Negative Vote

The failure of a permanent member of the Council to vote on any non-procedural decision of the Council shall not constitute a negative vote. Unless a permanent member affirmatively indicates that it does not concur it shall be deemed to be willing to concur in any such decision that the Security Council may make by the affirmative vote of seven members including the affirmative votes of the permanent members not abstaining.

Comment:

The question of whether the voluntary abstention of a permanent member of the Council should operate as a negative vote was discussed both at Dumbarton Oaks and at San Francisco. Although in those discussions the U.S. representative took a contrary view, it is now the position of the U.S. Government that a proper construction of the Charter does not prevent a permanent member of the Council from abstaining without having that abstention operate as a veto.⁹⁹

The practice of the Council has been to permit the elected members of the Council to abstain without depriving the necessary majority of seven of the right to decide. There appears to be no greater reason for giving a different effect to the abstention of a permanent member. If for political or other reasons a permanent member is not in a position to support affirmatively a proposition but is perfectly willing to defer to the wishes of the majority there is no reason why that member should be forced to exercise its veto.

It is the view of the U.S. that this liberal construction of the voting formula is of primary importance to the successful functioning of the Charter. Certainly no permanent member should be able to prevent the functioning of the Council merely because it is unwilling to vote on a proposition either in the affirmative or in the negative.

In construing a basic document like the Charter the right given to the permanent members in the voting formula should be construed as a right subject to waiver by its non-exercise, particularly when such a waiver cannot be regarded as prejudicial to the interests of the Organization or to the interests of any of its members.

94. This document is a development in detail of the general principles stated in Section 5 and its sub-sections of the Delegation’s Working Paper of November 4, “U.S. Position on General Assembly Agenda Items Relating to Voting in the Security Council” (document US/A/C.1/20), supra. Rules “A”, “B” and “C” enumerated here relate to the rules so designated that were communicated by the United States member on the Committee of Experts to certain members of the Committee in April. See further on this matter in footnote 11, p. 334.
95. In a revision of this paper (document US/A/C.1/18 (Rev.a), November 5 (see minutes of informal meeting of members of Committee 1 Group, November 4, infra) this title was amended to read: “United States Proposals for Additional Rules of Procedure of the Security Council”.
96. In the November 5 revision of this paper this section was eliminated. A new section read: “Article 109 of the Charter provides that the decisions of the Security Council relating to the convocation of a General Conference to review the Charter shall be made by procedural vote. By the same token, the request of the Security Council to the Secretary-General for the calling of a special session of the General Assembly under Article 20, which comes under the heading ‘Procedure’, should also be by procedural vote.”
97. The second sentence of this section was omitted in the November 5 revision.
98. Paragraph 12 was omitted in its entirety in the November 5 revision, and paragraph 13 became paragraph 12.
99. In the revised paper of November 5 this section was changed to read: “The United States Government believes that the Charter may properly be construed so as to permit a permanent member of the Council to abstain without having that abstention operate as a veto.”