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A/MS files, lot 54 D 291 (V), “UNA/P master file”

Paper Prepared by the United Nations Planning Staff, Bureau of United Nations Affairs

confidential
VIII–1

Scope of United Nations Action

(It is intended that this paper examine the persistent stress and strain in the UN that seems to have arisen from varying national conceptions of what is the scope of UN action. It is not intended that the paper do more than throw into bold relief the major matters that have arisen in the UN as a consequence of conflicting national interests and divergent national construction of Charter Articles, both affecting scope of UN action).

how question arises

When determining its attitude towards the question of whether or not a matter should be brought to the UN, an interested state asks itself in the first place whether its broad national interest would be advanced thereby. Determination of such interest involves weighing a varying combination of political and moral considerations, and in cases such as the Kashmir dispute between India and Pakistan such considerations have governed the decision to bring them into the UN.

But decision on the question of whether or not a matter should be brought to the UN is often further influenced by another factor, namely, the question of whether the UN has competence under the Charter to deal with it. Does the UN have competence to discuss it? If so, does it also have competence to make recommendations, provide for investigations, issue binding orders, et cetera? This is a question of construction of such Charter provisions as Article 2(7) which prohibits intervention in matters of domestic jurisdiction, Article 107 which prevents the UN invalidating or precluding action vis-à-vis ex-enemy states taken by the governments responsible, or Article 73 which relates to obligations of UN members with respect to colonial areas not under trusteeship. Mention in this paper of specific cases of national attitudes or positions on competence is merely by way of illustration of their divergency and regardless of the degree of their soundness.

When an interested state has decided that submission of a matter to the UN is in its broad national interest it tends to construe competence of the UN broadly. On the other hand, a state viewing such submission as detrimental to its broad national interest tends to urge a narrow construction of competence. The two questions, i.e., that of the political considerations, and that of legal competence under the Charter, which determine national attitudes towards the contents of UN agendas, are logically distinct; but in practice they influence each [Page 141]other, successive decisions for or against inscription tending to harden into a pattern which states in time may look upon as a rule.

stress and strain in the united nations

The question of scope of UN action has arisen in most acute form in the sometimes overlapping fields broadly denominated colonial and human rights problems, relatively new ones for international action.* Examples of colonial problems are the 1947–9 dispute over Netherlands actions in Indonesia, and French actions in Morocco and Tunisia in 1951–2. Examples of human rights problems are the two Indian-inspired complaints against the South African racial system now known as “apartheid”, attempts to give legal status through treaties to certain proclaimed rights, and disregard for such rights in satellite, ex-enemy states. In related areas the problem of UN authority to review compliance by administering powers with Article 73 has created substantial conflicts between administering and non-administering powers, an illustration being an attempt in UN bodies to assert competence to review judgment by an administering power (Netherlands) that a given territory (Surinam) had achieved self-government and therefore no longer fell under the purview of the Article. The recent notification to the UN by the US of its decision to cease reporting on Puerto Rico because the latter had obtained self-government may spur non-administering powers to assert competence to review that decision too.

Over the years colonial problems have tended to divide the UN roughly into several groups, the general and somewhat flexible delimitations of which are about as follows:

1)
a group of states emerged from colonial status (the Arab-Asian-African states with predominantly colored populations, and usually most if not all Latin American states), together with the Soviet bloc when it hoped thereby to create trouble in and among non-Soviet states, and in early UN years occasionally the US;
2)
a group constituted of the European colonial states, sometimes also the Commonwealth states, and sometimes the US; and
3)
a group constituted of sometimes the US, the Scandinavian states, and occasionally some Commonwealth, Latin American, and other states.

Votes on some human rights matters, such as the South African racial problem, and self-determination, have tended to divide the UN into groupings roughly similar to those on many colonial and economic development problems. On the other hand, when it came to voting on the Universal Declaration, no states voted against, only the Soviet bloc, South Africa and Saudi Arabia abstained, and only two countries, Honduras and Yemen, were absent. On the matter of alleged [Page 142]violations of human rights by satellite states the dividing lines took a Cold War tinge with neutralist Arab-Asian states abstaining. In general, the Soviet bloc abstained on the Universal Declaration, supported UN action when designed to extend human rights outside the Soviet bloc, and invoked Charter Article 2(7) against attempts to deal with such rights within the Soviet bloc.

policies of the united states

Guided by its traditional inclination to espouse the cause of any people seeking either self-government, if not independence, or human rights and fundamental freedoms, the US in practice has confronted, when such matters have been placed before the UN, one or another of two dilemmas: (1) either to join those (anti-colonial) states seeking UN action to advance towards self-government, if not independence, and also those seeking to utilize the UN to exercise authoritative supervision over administering powers, thereby incurring the ill-will of its most important NATO partners in the anti-Soviet coalition, or to join the administering powers, thereby disappointing anti-colonial states and peoples; and (2) either to join those seeking through UN programs to create legal obligations in the field of human rights, thereby arousing forceful opposition within the US in the form, for example, of the proposed Bricker amendment to the Constitution, or to oppose creation of such obligations and disappoint other elements in the US as well as those peoples and states seeking to utilize the treaty process in the UN. In either case sizeable political forces have been operative and we have had to choose where lie our own interests.

The US began its activity in the UN with a policy that encouraged efforts to bring before the UN a great variety of matters, including colonial and human rights questions. This was an expression of the so-called “sound growth” doctrine. The doctrine, practically all of which was officially enunciated by Ambassador Austin, Chairman of the US Delegation at the opening of the second part of the first session of the GA in 1946, postulated that members of the UN would not lightly disregard or flout recommendations by the GA which expressed the will of an alert and aroused world public opinion; that the organization could discuss anything within its scope particularly as defined by Articles 10, 11, and 14; that mere discussion of any matter within the scope of the Charter could clarify issues and promote mutual understanding among nations and peoples and did not constitute “intervention” under Article 2(7); that under the broad and flexible constitution of the Charter, which the US wished to develop, there would be a great and expanding area of operations for the GA, as functions which the Charter had not specifically provided for, but which it did not preclude, would be entrusted to the Assembly by the Member States; that Assembly recommendations, particularly under [Page 143]Articles 10, 11, 13, and 14, could greatly extend and develop the rule of law among nations provided its recommendations were such that they could be generally accepted and carried out by the Member States; and that the US must not prejudice free discussion by its vote on the question of inclusion of a matter on an agenda.

In practice the US has maintained with undiminished vigor the theses both that the GA was competent to discuss anything within the broad scope set forth in Charter Article 10, and that such discussion did not constitute “intervention” within the meaning of Article 2(7) of the Charter. Moreover, the US from the beginning has tried to prevent disputes about application of Article 2(7) from being brought to decisions, preferring that future development of the UN not be frozen at too early a date. The US feels that UN actions in competence matters taken together constitute a body of precedents interpreting Articles 2(7) and 107. Through such a policy the US has sought primarily to retain fluidity in areas, such as in the Tunisian and Moroccan cases, where taking of fixed positions would have been a grave political handicap; moreover, it has also sought thereby not only to avoid aligning itself on either side of highly-charged controversies dividing groups of states whose friendship is of great importance to the US, but also to reduce friction between adversaries by shifting the terms of dispute from the level of legal absolutism to that of political accommodation.

On the other hand, while firmly maintaining the doctrine of practically unrestricted competence under the Charter of the UN to discuss matters, the US on numerous occasions at least since early 1947 has exercised an eclecticism with regard to inscription of matters on UN agendas. Especially marked has been the concern shown by the US about the appropriate scope of UN action since the Arab-Asian states coalesced at the 6th GA to give dynamic force to anti-colonial measures. A number of weighty considerations have determined the US attitude towards the contents of agendas, of which the matter of competence under the Charter is only one; examples of others are: (1) the need to maintain security in the free world; (2) the desire to maintain unity in the free world; (3) the desire to take action most suitable to solution of a given problem; and (4) the desire to preserve through proper use of the UN (and its various organs) its long-run effectiveness as an instrument of US foreign policy.

US policy makers have judged that submission of a number of cases to the UN would be either premature or otherwise inexpedient; but when other states nevertheless brought them to the UN the US eventually voted for inscription. Examples of such cases are: Palestine (1947), Morocco and Tunisia (1951–2), Iranian oil (1951), and Nationalist Chinese troops in Burma (1952–3). Moreover, in certain instances, e.g., military aid to Greece and Turkey, and Marshall Plan [Page 144]aid, the US has chosen to act outside the UN. On the other hand, in certain cases, e.g., Berlin blockade, German unification, Austrian peace treaty, where we have thought it important that the UN act, we have initiated or supported such action notwithstanding challenges from the Soviet bloc that the proposed actions would be “illegal”, i.e., beyond the legal competence of the UN. Likewise, when after 18 months the US and USSR had failed to work out an arrangement on Korea, the US in perplexity disburdened upon the UN the problem of creating and establishing an independent Korean state. With regard to both Korea and Palestine, the UN made recommendations for political settlements which the UN itself could not carry out by peaceful means in view of both opposition by parties most affected and of its own constitutional limitations.

recent attitudes of other states

Illustrations of recent positions on legal competence taken by important Member States or groups of states can be culled from the 7th GA. At that session the French were adamant in refusing to recognize legal competence to any degree in the matters of Morocco and Tunisia. The UK supported the French contention. Moreover, it declared that such obligations as it had towards its dependent areas were limited to those set forth in Article 73, and that it would disregard any attempt to read into Article 73 greater powers for the UN than already appeared there explicitly. The Pakistan delegate, supporting the Indian case against South Africa, urged Member States in effect to overlook any legal limitations set forth by Article 2(7) in the interest of achieving certain objectives in Africa during 1952, the “year of revolution” there. Indonesia also supported the Indian case and Pakistani appeal. Other states, such as the US, voted for the resolution finally adopted by the GA concerning the treatment of Indians in South Africa as not being inconsistent with the limitations of Article 2(7).

While generally favorable to broad legal competence of the UN, and while generally sympathetic to appeals to limit the scope of Article 2(7), many Latin American states, mindful of their traditional fear of foreign intervention within their own frontiers, drew a line in their main policy speeches in the South African debate against UN action extending to on-the-spot bodies.

As is well known, the USSR considers all institutions, including the UN, as meet instruments for possible misuse in execution of its foreign policies; and it determines its every action in the UN solely on the basis of how it can best promote its own narrow national interests [Page 145]thereby, generally by trying to exacerbate differences between states in the non-Soviet world.

trends

Positions of certain countries are hardening on the issue of appropriate scope of UN action, a fact placing in bolder relief the earlier-described dilemmas that the US confronts. Most notable examples of the trend are:

1)
The Arab-Asian-African and Latin American states probably will persist and perhaps even intensify their efforts to utilize the UN to hasten changes in the colonial and human rights fields, in great part by insistence on a broad construction of competence of the UN Charter;
2)
The administering powers probably will continue to insist on a narrow construction of competence under the Charter on colonial matters; and
3)
The US probably will continue to reject UN programs to create legal obligations in the field of human rights.

Annex A

Specific Cases in the Colonial Field Involving the Scope of United Nations Action

a. non-self-governing territories issues (ch. xi of the charter)

1. Cessation of transmission of information on a non-self governing Territory, to the United Nations under Article 73 (e) of the Charter.

The question is whether a decision by an administering Member to cease transmitting information to the UN on one of its territories as a result of a change in the territory’s constitutional status is subject to review by, and possibly even the approval of, the GA. The general question has been the subject of much discussion by the GA, and two specific cases will be before the next GA, namely the decision of the Netherlands to cease transmitting information on Surinam and the Antilles, and the decision of the US to cease transmitting information on Puerto Rico. Both governments have held that the decision rests solely with them. Many members, however, contend that the responsibility for such decisions is held jointly by the administering member concerned and the GA.

2. Factors indicating whether a territory is or is not fully self-governing (i.e. whether or not it falls within the scope of Chapter XI)

The question is whether in drawing up criteria indicative of whether a territory is or is not fully self-governing, the GA can make, or share in, a determination as to the territories that fall within the scope of [Page 146]Chapter XI This matter arose most recently at the 7th GA which adopted a resolution (648 (VII) which indicated that the GA would share in such determinations. Among the 15 Members voting against this resolution were the eight administering authorities, including the US. While the US has taken the position that the GA has the authority to discuss and attempt to define a non-self-governing territory (i.e. one falling within the scope of Chapter XI) and to recommend to administering members generally the consideration of any definition it might adopt, the US also considers that each administering member has sole responsibility for determining the constitutional position and status of territories under its sovereignty, as well as for decisions regarding reporting on them under Article 73(e).

[Here follow subsections 3, 4, and 5, which are missing from the source text.]

6. Transmission of political information on non-self-governing territories to the United Nations.

The question is whether in view of the exclusion of political information from the categories of information to be transmitted under Article 73 (e), the Assembly should nevertheless recommend that such information be transmitted. Although the US itself has submitted on a voluntary basis information on government in relation to its territories, it has been the policy of the US to oppose proposals by UN bodies recommending that such information be transmitted by administering states. The more conservative administering members have held that recommendations of this kind had the effect of imposing on the administering members obligations additional to those assumed by them when they signed the Charter. The non-administering members, however, have taken the view that recommendations by the GA in this field were proper, and that the use of the word “voluntarily” in them ensures that there is no imposition of additional obligations. Such a resolution was adopted by the Assembly at its Seventh Session. Resolution 637 B on self-determination recommends to the administering authorities that they voluntarily include in the information transmitted by them under Article 73 (e) certain political information indicating the extent to which the right of self-determination is exercised by the peoples of their territories.

7. Accepting petitions from and sending of visiting missions to non-self-governing territories.

While the Charter contains provisions for accepting petitions from and sending visiting missions to trust territories, it contains no such provisions with regard to the non-self-governing territories under the sovereignty of Member States. At the earlier sessions of the GA a number of efforts were made, particularly by the USSR, to apply these elements of UN supervision to non-self-governing territories. While [Page 147]such proposals attracted support from some of the more extreme non-administering Members, they have always been defeated by substantial majorities. The US has taken the position that such proposals went far beyond the intention of the framers of the Charter and has opposed the expansion of the obligations in Chapter XI to include obligations not stated therein. There appears to have been general acceptance of existing limitations in this field, as indicated by the absence of proposals such as those referred to above during the last two sessions of the Assembly. In particular, although there was considerable controversy over the renewal of the Committee on Non-Self-Governing Territories at the Seventh Session, no effort was made to enlarge its terms of reference.

8. Participation of indigenous inhabitants of non-self-governing territories, in the work of the Committee on Information from non-self-governing territories.

The question is whether the Assembly, having established a Committee on Information from Non-Self-Governing Territories, should alter its character by making provision for inhabitants of the territories to participate in its work. This question arose at the Sixth and Seventh GAs and a resolution was adopted at the latter by a vote of 43–11–4 inviting the administering authorities to make possible the participation of “qualified indigenous representatives from non-self-governing territories”, in the work of the Committee inviting the Committee “to study further the question of direct participation in its discussion … of representatives” of the more advanced territories. The US, along with the other administering members, voted against this resolution because it appeared to embody the concept of “dual representation” i.e. representation for the inhabitants of non-self-governing territories distinct from the representation of the UN members responsible for their administration. However, the US and some other administering members have indicated willingness to provide for closer association of indigenous inhabitants of non-self-governing territories with the work of the UN in this field by attaching suitably qualified inhabitants of their territories to their delegations to the Committee, and some, including the US, have on occasion done so.

b. trusteeship and related issues (chs. xii & xiii of the chapter)

1. The placing of League of Nations mandates under the Trusteeship System.

The question is whether Member states administering League of Nations mandates are under an obligation to place such territories under the UN Trusteeship System. This question has been debated in the UN since the First General Assembly (1946) in connection with the obligations of the Union of South Africa, the only mandated [Page 148]Territory which has not either achieved independence or been placed under trusteeship. The International Court of Justice, which was asked for an advisory opinion on this matter, held that, while the Union was not obligated to place South West Africa under trusteeship, the mandate continued to exist and the Union was accountable to the UN to the same extent it had been accountable to the League. The Union, while not accepting the Court’s opinion, has carried on discussions with a UN committee with a view to reaching agreement as to some form of international supervision of South West Africa; however, no agreement has thus-far been reached. The US, while favoring implementation of the Court’s opinion, has opposed resolutions recommending or favoring trusteeship for South West Africa.

2. The granting of oral hearings regarding the question of South West Africa.

The question is whether the Assembly should grant hearings to individuals wishing to be heard on the question of South West Africa. This question is considered a special case, particularly in the light of the advisory opinion of the International Court of Justice on South West Africa, wherein the Court held that, “the degree of supervision to be exercised by the GA should not exceed that which applied under the Mandates System and should conform as far as possible to the procedure followed … by the Council of the League of Nations”. As the Council did not grant oral hearings to individuals on mandates matters, it has been held that hearings on South West Africa should not be granted by the GA. However, the question has arisen at a number of Assembly sessions and hearings have been granted to the Herero Chiefs from South West Africa (who have not in fact appeared before the Assembly) and to the Rev. Michael Scott as their representative (who has appeared).

3. The participation of indigenous inhabitants of trust territories in the work of the Trusteeship Council.

The question is whether the Assembly should attempt to alter the character of the Trusteeship Council by recommending that indigenous inhabitants of trust territories participate in its work. This question arose at the Sixth and Seventh GAs, and a resolution was adopted at the Seventh Session endorsing a Trusteeship Council resolution “expressing the hope that the administering authorities would find it appropriate to associate suitably qualified indigenous inhabitants of trust territories in the work of Trusteeship Council as a part of their delegations or in any other manner they deem desirable”. In this resolution the GA also expressed the opinion that the objects of its previous resolution on this subject (Res. 554 (VI)) “would be better achieved through the active participation of members of the indigenous population of the trust territories in the government of those [Page 149]territories and in the work of the Trusteeship Council”. Except for this somewhat vague expression of opinion, this resolution does not embody the concept of “dual representation” referred to in paragraph A 8. above. Consequently only one administering member (Belgium) voted against it; four abstained, and three (including the US) voted for it. In the view of the US no alteration in the character of the Council was involved but only increased opportunity for contacts between the Council and the inhabitants of the territories by means of fuller use of existing machinery.

4. The granting of oral hearings to inhabitants of trust territories by the Fourth Committee of the General Assembly.

The question is whether the Assembly should as a rule leave the hearing of trust territory inhabitants in the first instance to the Trusteeship Council. This question might be considered as one of the voluntary limitations on GA action in the interests of orderly procedure. The Charter (Art. 87) provides that the GA (“and, under its authority, the Trusteeship Council”) may carry out the functions of the UN in relation to trust territories. While the details of UN supervision have generally been left to the Council, the Assembly has become increasingly dissatisfied with the Council and tended to undertake certain aspects of UN supervision itself. One consequence of this tendency was the granting by the Seventh Assembly’s Fourth Committee of hearings to every group of petitioners from the trust territories seeking to be heard (11 groups), without regard for the merits of each case, or whether the Council had had an opportunity to deal with it, or even, in some cases, knowledge of the subject to be discussed. While several members, including some non-administering members, voiced the need for a more orderly procedure, no action was taken. However, the US and certain other administering members favored hearings by the Fourth Committee only when the Assembly felt that petitioners had not been adequately dealt with in hearings before the Council.

5. Competence of the Advisory Council of Somaliland

The Trusteeship Agreement for Somaliland provides for a 3-member Advisory Council to aid and advise the administering authority. While certain of its functions are set forth in the agreement, its competence in certain other regards is not defined. Perhaps the most difficult such matter relates to the right of the Advisory Council to deal with petitions presented to them in the territory. Certain members of the Advisory Council, particularly the representative of the Philippines have in the past sought to establish the right of the Advisory Council to deal officially with petitions. The administering members of the UN, including the US, have opposed delegation to the Advisory [Page 150]Council by the Assembly of any of the authority to deal with petitions granted only to it and the Trusteeship Council in the Charter. The representative of the Philippines, who raised this matter at the Seventh Assembly, did not present a formal proposal, and it is understood that his successor on the Advisory Council is less likely to pursue the matter.

6. Appointment to subsidiary organs of the Trusteeship Council of non-members of the Council.

The question is whether the Assembly should alter the character of the Council (including the violation of the principle of balanced composition), by favoring inclusion of non-Council members in subsidiary organs of the Council. This question arose at the 6th GA, where a resolution to the above effect was defeated. The administering members including the US held that this resolution violated the spirit of the Charter, particularly in so far as it affected the balanced character of the Trusteeship Council. While the resolution was defeated it was indicative of the pressure of non-administering members for an expanded role in trusteeship matters.

7. Administrative Unions between trust territories and neighboring colonial territories.

The trusteeship agreements for a number of trust territories authorize the administering authority to constitute these territories into customs, fiscal or administrative unions with one or more of its neighboring colonies. A number of non-administering members of the UN have been concerned lest such administrative unions be operated in a manner which might frustrate the achievement of the objectives of the Trusteeship System for these trust territories. They have thus sought to place these unions under continual UN scrutiny. The administering members on the other hand, have contended that the trust territories derived considerable benefit from participation in administrative unions and that they would in fact achieve the objectives of the Trusteeship System more rapidly because of such participation. The US has taken the position that while there were advantages to be derived from participation in administrative unions, the UN had a legitimate concern in keeping careful watch over their operation. Suspicious as to the operation of certain administrative unions (as well as of the status of the French Trust Territories in the French Union) led to the introduction by certain non-administering members at the 7th GA of a resolution which would have referred to the International Court of Justice the question of the compatibility of existing administrative unions with the Charter and the Trusteeship Agreements. Subsequently, however, this resolution, presumably for political reasons, was withdrawn.

  1. See Annex A for specific cases in the colonial field. [Footnote in the source text.]
  2. However, when the shoe had been on the other foot, as in the cases of the revolt of the Moluccan Republic (Ambon) against Indonesia, and the attempt by Hyderabad to establish its autonomy vis-à-vis India, both Indonesia and India declared in effect that the UN was not competent and proceeded by armed action to extinguish the fires of revolt. [Footnote in the source text.]