IO Files: US(P)/A/C.1/197

Memorandum of Conversation, by Mr. Eric Stein of the United States Delegation Advisory Staff

Participants: Mr. Fawcett, Legal Adviser to the Permanent United Kingdom Delegation to the United Nations
Mr. James Hyde, United States Delegation
Mr. Eric Stein, United States Delegation

We discussed the Interim Committee report on the veto with Mr. Fawcett in two three-hour sessions on October 20 and 21. He read us [Page 252] much of the Foreign Office Position Paper. This substantiated what our previous talk with Falla and Fawcett indicated, that the Foreign Office considers the second recommendation of the report as an attempt to amend the Charter by the back door. Fawcett is now convinced that all we want is a Big Five agreement not to exercise the veto as to certain categories of decisions. He referred to this as a self-denying ordinance, as opposed to the Foreign Office idea that we were urging in effect that a negative vote should not be considered a veto. Fawcett will present the matter to his delegation and urge that there is no basic objection to the report.

Fawcett agreed that it would be most desirable for the Big Four to reach a much wider area of agreement than that reflected in the Interim Committee Report so that most if not all of the important reservations made by the United Kingdom and French Governments could be eliminated. However, we made it quite clear that in seeking such agreement the United States could not sacrifice the principles underlying its position on this subject.

Fawcett has been extremely cooperative and frank throughout the discussions.

We examined all of the 98 possible Security Council decisions listed in the Report on which the Interim Committee made recommendations. The following are the tentative suggestions made by Fawcett with an Express understanding that they will have to be further passed upon by the Delegation:

I. Conclusion 1 (decisions which the Interim Committee deemed procedural)

Category 26 and 27. Fawcett is of the opinion that a decision to establish a subsidiary organ may involve a substantive decision such as a decision to investigate. Consequently, we suggested that the text of these two categories might be revised so as to eliminate this difficulty.
He is definitely opposed to considering as procedural the decision in category 83 (request to the International Court of Justice for an advisory opinion on a legal question). We agreed that since the Security Council would and should abide or act in accordance with a Court opinion the request for such opinion affects the substance of and the eventual action on the matter.

II. Conclusion 2 (decisions with respect to which the permanent members agree not to use their veto privilege)

Fawcett wondered how this conclusion could be put into effect even if an agreement is reached. We all agreed that in case of such agreement a permanent member would simply abstain instead of voting in the negative with respect to decisions falling within this conclusion whenever there are seven or more affirmative votes in support of the decision. With this understanding Fawcett agreed that Security Council decisions on admission of a State to membership should be retained in this conclusion. He had the following further comments:

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He had a fundamental objection to the inclusion of category 21 relating to the decision whether a matter is or is not procedural. He argued that this decision falls into a special category of “nonprocedural” decisions within the meaning of Article 27(3). He believes an agreement to eliminate the veto from this decision might in effect lead to the elimination of the veto altogether; to propose the inclusion of this category means in effect to propose a potential complete elimination of the veto.
He did not object to category 21a (decision whether any matter falls within one of the categories which the Interim Committee recommends should be determined without a veto) but thinks it is not particularly practical at this time since it presumes an agreement with respect to the decisions in the second conclusion which cannot be expected in the immediate future.
Category 22 (decision to determine whether a question is a situation or a dispute for the purposes of Article 27 (3)). Fawcett feels that this decision is of the same nature as the decision in category 21 (see 1 above). Moreover, he does not agree that a definition of a dispute championed by the United Kingdom in the Interim Committee would serve any useful purpose and he hopes that he will convince his Delegation to drop it.

Fawcett thought that the United Kingdom would agree to the retention of most of the decisions under Chapter VI in the second conclusion. For example, the United Kingdom will probably agree to the retention of category 41 (calling upon the parties to settle their dispute by peaceful means), category 42 (inviting the parties to continue or to resume their efforts to seek a solution through peaceful means of their own choice), and category 48 (recommending that a legal dispute should be referred to the International Court of Justice).

Fawcett did not want to commit himself on other decisions under Chapter VI until his Delegation considered the United Kingdom Position Paper in the light of his views. However, he personally thought that the United Kingdom might not agree to the inclusion of category 43 involving the decision to investigate under Article 34. As we concluded, Fawcett stated that in presenting the case to his Delegation he was faced with his Government’s view that an agreement in advance on matters of this sort is undesirable.

Eric Stein