IO Files: US/A/C.1/1892
Paraphrase of a Message Received by the British Delegation to the General Assembly From the British Foreign Office and Handed to the United States Delegation, New York, September 23, 1950
The Charter entrusts the Security Council with the primary (not exclusive) responsibility for peace and security, and the Assembly has a subsidiary role in this sphere, which is defined in Articles 11 and 12. Thus the Security Council being the rule and the Assembly being the exception in this sphere, it must be held that the role of the Assembly is more or less exhaustively defined in these two Articles. It appears from Articles 11 and 12 that the Assembly has a power to make recommendations in the sphere of peace and security in two cases:
- (A)
- It may recommend general principles in the abstract to be applicable to any case as it arises (Article 11 (1));
- (B)
- It may discuss and make recommendations relating to particular cases under Article 11(2), but the language i.e. “questions relating to the maintenance of international peace and security” (N.B. not “restoration”) coupled with the reference to Article 35(2), does strongly indicate that this is a chapter VI jurisdiction and not a chapter VII one. In other words, there is nothing in Articles 11 and 12 which gives the Assembly any jurisdiction over breaches of the peace and acts of aggression.
2. Having given to the Assembly this jurisdiction limited to these two classes of cases, articles 11 and 12 proceed to place two limitations or conditions on the exercise of that limited jurisdiction, namely: [Page 339]
- (1)
- that the Assembly is not to make recommendations with regard to any situation when that situation is on the agenda of the Security Council (which is what Article 12(1) probably means) and
- (2)
- that if it wants to recommend action it must refer the matter to the Security Council.
It could be argued—although the Attorney General doubts the soundness of the argument—that these two conditions would not really hamper the American proposals because
- (i)
- Ex hypothesi the Security Council will have failed before the Assembly takes the matter up, and
- (ii)
- the Assembly could refer its recommendations to the Security Council by inserting a paragraph that its recommendations should be referred there but should remain operative unless the Security Council by affirmative vote decides otherwise.
But in any case Article 11, even on a fairly sympathetic interpretation, does not appear to give the General Assembly any jurisdiction when a breach of the peace has actually taken place.
3. To support action which is inconsistent with what is suggested above to be the true interpretation of the Charter, one would have to argue, if necessary, that the phrase “any questions relating to the maintenance of international peace and security” in Article 11 (2) is not in fact exactly the same expression as is used in chapter VI, and therefore must be interpreted as having a wider meaning. There are also other places in the Charter where the expression “maintain international peace and security” is used without the additional word “restore”, though the clear meaning there is “maintain or restore”. Further, the actual reference to Article 35(2) only applies to a question brought before the Assembly by a non-member state (and not by a member of the Security Council) and it may well be said that the Security Council has the right, under this Article, to bring even a breach of the peace if it so wishes before the General Assembly.