The Secretary of State to the United States Mission at the United Nations
10. Fol are Dept’s preliminary comments on some items in check list forwarded to Dept in urtel 554, June 28.
Re Paral (a and c) of urtel
Fol is Dept’s analysis of Charter basis of SC resolutions of June 25 and 27.
Security Council Resolution of June 25, 1950
SC Res of June 25, 1950 contains explicit determination under Art 39 of Charter that action by forces from North Korea constitutes breach of the peace.
Para 1 contains cease-fire order and order to the forces to withdraw to the 38th parallel. These orders binding upon members.
These orders are enforceable against non-members under principle contained in Art 2 para 6 of the Charter.
In para 2 SC requests UNCOK to communicate its recommendations on situation, observe withdrawal of North Korean forces and keep SC informed.
In the third para SC, acting under Art 39, applies general principle of Art 2 para 5 of Charter to Korean situation.
In this para SC calls upon all members to render every assistance to UN in execution of Res. This requires members to facilitate execution of Res i.e., cessation of hostilities and withdrawal of the armed forces to the 38th parallel. The means of accomplishing this are not specified (“render every assistance”) and presumably would be within discretion of members.
In second part of this para the SC calls on members to refrain from giving assistance to North Korean authorities, using language of Art 2 (5).
Action taken by the US on the basis of this Res prior to the adoption of the Res of June 27 was taken in response to the call for assistance in execution of the cease-fire order and withdrawal orders.
The SC Resolution of June 27
In this Res SC noted that its orders of cease-fire and troop withdrawal had been disregarded by authorities in North Korea. It concluded that urgent military measures were required to restore peace. As a result, the Council decided to recommend to members to furnish such assistance as may be necessary to repel armed attack and restore [Page 296]international peace and security in area. This is a recommendation under Art 39.
The Charter envisaged the fol enforcement procedure:
- Under Art. 39 the SC, having made an explicit or implied determination of threat to the peace, breach of the peace or act of aggression can make recommendations to members or can decide on measures in the nature of sanctions to be taken under Arts. 41 and 42 for purpose of maintaining or restoring peace.
- The measures ordered by SC may be either of non-military character under Art. 41 or they may be of a military nature under Art. 42. The SC may take action under Art. 42 by air, sea and land forces which are made available to it by the Members of the UN under special agreements mentioned in Art. 43.
- Pending the coming into force of such special agreements, under Art. 106 the 5 permanent members are to consult with views to joint action for maintenance of international peace.
No special agreements have thus far been concluded which would place armed forces at the disposal of the SC. The Soviet Union made it abundantly clear that it would not consult in a body in which the National Govt. represents China.
In the absence of the armed forces placed at disposal of SC the Council chose other alternative provided by Art. 39:—to recommend to members that they act on behalf of UN rather than to order action under Art 42. SC as organ holding primary responsibility for the maintenance of international peace and security under Art. 24 had power to do so. US and other Members have acted in accord with SC recommendations.
As result Members acting in response to recommendation of SC are under obligation to SC to ensure that their action is in fact designed to repel armed attack and to restore international peace. US Commander in charge of the military action in area is responsible only to US Govt, which in turn answers to SC.
Scope of continued US action in support of the Govt of the Republic of Korea is fully within both resolutions.
We believe that there is no room for any doubt as to legality of US action and any effort to present detailed public justification might be seized upon and misused for propaganda purposes as indication that we ourselves are not certain of legality of our actions.
Re para. 2 of urtel on Coordination of Assistance
“Assistance” covers economic as well as military assistance to ROK. “Assistance” also covers “sanctions” against North Korea as indicated in the above legal analysis of SC Res. of June 25. As you know US has already imposed embargo on exports to North Korea.[Page 297]
Re para. 3 of urtel ashing whether SC action should be taken to Establish Soviet Complicity.
For the moment Dept thinks it undesirable to bring formally to attention of SC our direct approach to the USSR and the Soviet reply thereto. For time being Dept intends to continue careful course of avoiding formal charges against the USSR in the SC.
Re para. 4 of urtel regarding Special Session of the GA
Dept does not consider desirable to call a special session of the GA at this time. The SC has primary responsibility under Charter in matters relating to international peace and security such as armed attack against the Government of the Republic of Korea. Council action appears adequate at this time and we see no necessity for the submission of the Korean question to the GA now.
Para. 1 (b) on linking SC action and US action, part of Para. 2 dealing with coordination military assistance, Para. 5 on China and Formosa under consideration in Dept. See Deptel 4 to N.Y., however.1