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

USUN Files

Memorandum by Mr. James N. Hyde, Adviser, United States Delegation to the General Assembly¹

secret

[Paris,] December 11, 1951.

Subject: Italian Membership Application

We have raised with the State Department the question of whether we should not step in with a request for an advisory opinion in the Security Council should Quevedo be inclined to rule that a Soviet negative vote on Italy’s application is not a veto.

Vallat (UK Legal Adviser) and I feel that the question to the Court should be very carefully formulated. We are putting to the Court the question of interpreting Article 27 of the Charter and, therefore, interpreting the scope of the veto. In general, we will therefore want to phrase the question narrowly to avoid any attacks by individual judges on what we think to be the proper scope of the veto. Also, we want to phrase the question in such a way as to get favorable replies from our own point of view from a majority of the Court. In this connection, we can probably expect the Latin American judges to take a pretty strong line on limiting the veto. Of course, Judges Ugon and Rau may well disqualify themselves in this case.

From the point of view of narrowing the question down, it is of course better to frame the question in terms of the exact issue before the Court on the question of Italian membership. This is done in alternative a. On the other hand, there might be some tendency in the Court not to render an opinion on what would thus seem to be a purely political question.

Alternative b attempts to state the question precisely but in general terms, although not specifically mentioning Italy’s application. This is in line with the 1948 majority opinion of the Court which stated that an abstract statement of the question precludes a purely political interpretation of it so that the Court might properly render an opinion. The Court cited this language of the 1948 opinion at page 7 of its 1950 opinion, stating that when framed in abstract terms a request to the Court to undertake the interpretation of a Charter provision is essentially a judicial task to which one should not attribute a political character.

Both formulations of the question recognize that in the 1950 opinion the Court specifically pointed out that it was not deciding what the effect of a negative vote in the Security Council is. It was proceeding on the theory that the Security Council had decided that such a negative vote constitutes a veto. That very question which the Court purposely avoided is the precise one we wish to put before it here.

A separate tactical question in the Security Council arises about whether we would want to request an advisory opinion even if Quevedo assured us that he would rule a negative vote to be a veto. To request an advisory opinion in this situation would be to keep the question in suspense in the General Assembly in order to prevent the Latin Americans attempting to vote Italy in. However, before deciding this we would need to evaluate what the practical chances are of a two-thirds vote on such a proposition.

[Attachment]

Two Drafts of a Security Council Resolution, Requesting an Opinion From the International Court of Justice

The Security Council

Considering Article 96 of the Charter and Article 65 of the Statute of the Court, and

Considering the debate which has taken place in the Security Council at its ——— meetings relating to the admission of certain states to membership in the United Nations,

Considering Articles 4 and 27 of the Charter and the advisory opinion of the International Court of Justice entitled: “Admission of a state to the United Nations (Charter, Art. 4), Advisory Opinion: ICJ Reports 1948, p. 57”,

Requests the International Court of Justice to give an advisory opinion upon the following question:

[Alternative A: Did the vote in the Security Council on Italy’s application for membership in the United Nations which took place on——— constitute a recommendation by the Council for the admission of Italy, despite the negative vote of a permanent member for either of the following reasons:

(a) The negative vote of the permanent member was null and void because it was admittedly based on considerations not admissable under Article 4 of the Charter as determined by the International Court of Justice in its advisory opinion of May 28, 1948; or

(b) The requirement of unanimity under Article 27 of the Charter, assuming it is applicable in general to recommendations for admission to membership, can not be set up to defeat an affirmative recommendation where the reasons given by the permanent member for its negative vote are not admissible under Article 4 of the Charter as determined by this Court in its advisory opinion of May 28, 1948?]²

[Alternative B: When the Security Council has on its agenda for the day an application for membership in the United Nations, and seven or more members have cast affirmative votes in favor of that application, and one permanent member has cast a negative vote giving as its ground for so doing that its negative vote is conditioned upon the failure of the Security Council to consider and recommend the applications of certain other applicants for membership, and after the vote the President of the Security Council has made no ruling and the Security Council itself has taken no decision on the effect of the vote;

(a) What is the effect of the vote taken by the Security Council on the application for membership voted upon? In particular, by reason of the casting of seven or more votes in favor of the membership application before it has the Security Council made a recommendation within the meaning of Article 4 of the Charter that the General Assembly admit that applicant to membership in the organization;

(b) Is the ground given by the permanent member casting a negative vote that the Security Council should not consider the application before it except in connection with certain other applications a new condition unconnected with Article 4 of the Charter?]³

1. Addressed to Ambassador Gross and Representative Vorys of the United States Delegation, and Messrs. Fisher, Sandifer, Meeker, and Ross of the Advisory Staff of the Delegation.
2. Brackets in the source text.
3. Brackets in the source text.