320/12–1051: Telegram
The Acting Secretary of State to the United States Representative at the United Nations (Austin)
priority
Gadel 406. Re Ital membership (Delga 526, Dec 6, 590, Dec 10). This tel deals with suggested SC tactics only in event USSR casts negative vote on Italy’s application giving as sole reason grounds declared improper by ICJ, i.e., only Alternative (d) Delga 526. Dept understands Quevedo will not raise question legality Sov vote if USSR shld veto, alleging any Charter grounds for its action or giving no reasons at all. Is this correct?
According US/S/1863, Quevedo has suggested alternative possibilities of (1) Pres ruling that Sov vote does not, in light ICJ opinion, constitute a legal veto, and SC recommendation has thus carried or [Page 406] (2) submittal by Pres to SC of question whether Sov vote is illegal and vend. Dept has great difficulties both alternatives and hopes Quevedo can be dissuaded from invoking either. Dept strongly of view first alternative highly objectionable. It establishes new far-reaching precedent that Pres SC has right to rule that a Member’s vote illegal and void. To allow Pres make such ruling in this particular case subject only to rule 30 wld mean Pres can nullify Member’s vote and vote will be void unless seven members agree override him. Thus legality any Member’s vote left in hands Pres and 4 other members. In addition far-reaching Charter implications involved this procedure, dangers of abuse cannot be minimized. If, e.g. on such precedent Sov chairman SC ruled Chi Nationalist’s vote illegal, it might not be possible get seven votes to overrule.
Second alternative less objectionable since it wld require in effect seven votes to declare member vote illegal. Nevertheless, as indicated, entire concept declaring member vote illegal highly questionable and troublesome. There is no clear authority for concept in Charter or in past SC practice, unlike double veto procedure which has not only precedent but is also problem inherent in Charter and contemplated San Francisco statement. Also, in vote under second alternative, serious difficulty remains since vote wld appear to be subject to veto under Charter and San Francisco statement. Justification of overruling double veto when question is “substance or procedure” is that where a particular question is defined as procedural in Charter or San Francisco statement, or is otherwise indubitably procedural. Part II, para 2 San Francisco statement does not apply. Nowhere, however, is question legality member’s vote defined as procedural question nor can it be said that such question is clearly procedural. This question wld seem therefore subject to veto within Part II, para 2 San Francisco statement.
ICJ suggestion does not present above difficulties but, as indicated Deptel 177 Oct 4 to USUN, has difficulties its own.
Before firming up final views this matter, Dept wld be interested in any info Del may be able obtain other friendly SC members, particularly Ecuador, Braz, UK, Fr and Neth re most desirable SC tactics.