Foreign Relations of the United States, 1951, The United Nations; The Western Hemisphere, Volume II

UNP Files, Lot 59 D 237, “Italian Membership”

Memorandum of Comment on the Italian Government Memorandum on the Admission of Italy to the United Nations, by Mr. Paul B. Taylor of the Office of United Nations Political and Security Affairs¹

[Washington, undated.]

The Charter difficulties of the Italian suggestion may be summarized as follows:

1. In its 1948 opinion the International Court of Justice interpreted Article 4 of the Charter as setting forth exhaustively the conditions for admission of a state-to-membership. In essence, the opinion rejected the Soviet contention that Article 4 provides that a Member State may properly oppose an applicant state for any reason, what-ever, whether or not such reasons are connected with the criteria set forth in Article 4. The Court expressly stated that the General Assembly’s request did not involve a judgment on the real reasons which may have entered into a Member’s vote (confining itself merely to statements made by Members) and expressly disclaimed an intention to decide, whether or not the particular statements made by the USSR in individual instances did or did not lie within the terms of Article 4. It confined itself to the precise, abstract and general question concerning the meaning of Article 4.

2. Working from this, the Italian aide-mémoire states that the Soviet vetoes were given on grounds lying outside Article 4 (with which we agreed); working from this it is suggested that the Soviet vetoes of Italy’s application are therefore null and void and that, accordingly, the GA can disregard them and vote to admit Italy to membership.

3. Two difficulties arise from the above. In the first place, the Italian suggestion would treat any deviation from the terms of Article 4 on the part of any Member not casting its vote as rendering the vote ineffective rather than merely improper or wrongful. It has certainly been universally assumed that such a vote, however wrongful, would still be effective and if it were the vote of a Permanent Member would in matters of substance thwart action by the Council. Whether it would ever be possible to subject the actual vote of a Member to judicial or political scrutiny as to its reasons and on that basis to conclude whether or not the vote was effective is a large and serious question which has not been approached at all in this discussion. My own belief is that no such inquiry can be made nor is it known to any parliamentary system. Obviously, if this can be done we have opened the door to a re-hash of earlier votes not only in the GA but in the SC and not only of membership but on many other matters which might be of the gravest consequence. Specifically as applied to the veto, such a step goes far beyond the position which we have taken in agreeing to a procedure in the SC whereby, a vote on a ruling by the President or the Council may be a procedural vote to determine the character of a preceding decision.

The second essential difficulty with the above suggestion concerns who shall make the determination that a given vote is ineffective because cast for improper reasons. The Italian suggestion would have the GA do this. However at this point, one collides with the second membership opinion of the ICJ, which ends with the statement that “it is impossible to admit that the GA has the power to attribute to a vote of the SC the character of a recommendation when the Council itself considers that no such recommendation has been made.” It is indisputable that the GA cannot admit a state to membership in the absence of a favorable recommendation by the SC. The Italian suggestion would be to disregard the Soviet veto and thus have the GA conclude that the SC had rendered a favorable recommendation. This is precisely what the GA says the Court cannot do. A quite different question might be whether the SC could in any given circumstance—and by what procedure—declare that a vote cast in its deliberations was illegal and hence without effect.

1. For the Italian Government memorandum, see p. 336. This memorandum is undated, but internal evidence suggests that it was drafted for use in a meeting in the office of Deputy Assistant Secretary of State Sandifer on September 22, at which time officers of UNA reached an agreed Bureau position regarding the Italian proposal to recommend to other components of the Department. See Taylor memorandum, September 24, infra, and Doc. IPM D–5a, September 24, p. 345.