UNP files, lot 59 D 237, “Membership”

Memorandum by the Officer in Charge of General Assembly Affairs (Taylor)1

  • Subject:
  • Circumvention or Overriding of Soviet Veto of Applications for United Nations Membership

At a meeting of the Assistant Secretaries last week, during which it was generally agreed that we should not acquiesce in a package proposal on membership, Mr. Hickerson said that we would again look into the possibility of circumventing or overriding the Soviet veto of membership applications.

I hope that we can have a meeting some time this week to discuss this problem. Attached is a paper on the subject to serve as a basis for our discussion.


Draft Paper for Discussion Purposes only Admission of New Members2

circumvention or overriding of soviet veto of membership applications

In the past, various alternative courses have been suggested as possible ways to circumvent or override the Soviet veto of recommendations for the admission of new members. We have rejected some of these because we believed that they were illegal and because of their implications regarding the veto power. We have been reluctant to accept others because in our view they would not achieve the desired result.

There follows below a brief discussion of the major alternatives which have been suggested.

1. Security Council Determination that a vote on Membership Applications is Procedural

Since 1947, the United States has consistently declared that it would not use its vote to prevent the admission of any state receiving as many as seven affirmative votes in the Security Council. However, we have always taken the position that a recommendation to admit a new member is a substantive decision and that a permanent member has a right to veto such a recommendation if it so desires.

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The various organs of the United Nations concerned with this problem have never suggested that a recommendation to admit a new member is procedural. The Interim Committee, in its 1948 Report to the Assembly, concluded that the Assembly should recommend to the permanent Members that they agree that a recommendation on the admission of a new member should be adopted by the vote of any seven members regardless of whether such a recommendation was considered procedural or non-procedural. The General Assembly, in April 1949, in accordance with this conclusion of the Interim Committee, recommended that the permanent members seek agreement to forbear to-exercise their veto when seven votes have been cast in favor of a recommendation to admit a new member. Later in the same year it approved a resolution requesting the permanent members to refrain from the use of the veto in connection with recommendations for membership. Thus the Assembly, while requesting that the veto right not be used, has recognized that this right exists in connection with membership applications. Finally, the Security Council has consistently treated as a veto the Soviet Union’s negative vote on membership applications receiving seven or more votes.

However, opinions on this matter have not been unanimous. Certain Latin American countries, notably Argentina, have long contended that the veto should not apply to a recommendation on admission of a new member. At the last session of the Assembly, Cuba maintained that according to the Four-Power Declaration at San Francisco, only questions relating to the maintenance of international peace and security were subject to the veto, and that it therefore followed that the admission of new members was a procedural question. Cuba also maintained that the Assembly could itself decide that the question was procedural and could admit candidates which had received at least seven favorable votes.

We would, of course, strongly object to the thesis that the Assembly could determine whether a question before the Security Council was substantive or procedural, since this is a matter which the Security Council itself must determine. However, in view of the history of the membership question, it would be difficult for the Security Council now to decide that a vote on a membership application was procedural. In any event, a decision of this nature is itself subject to the veto. The procedure which has been used to override a double veto could hardly be applied since this procedure was contemplated only for those matters which have been defined as procedural either in the Charter or in the San Francisco statement, or where a question is so clearly procedural that a contrary claim is virtually frivolous.

Aside from these considerations it might not be in our own future interest to go on record as in favor of a determination that a decision on a membership application is procedural.

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2. Referral to the International Court of Justice of the Question Whether a Negative Vote of a Permanent Member can Nullify a Security Council Recommendation for Admission Which has Obtained Seven or More Votes.

The Central American countries introduced a draft resolution to the Sixth Session which would request an advisory opinion from the International Court of Justice as to whether a negative vote of a permanent member can nullify a recommendation for admission which has obtained seven or more affirmative votes. In commenting upon this draft resolution, the Department indicated to the United States Delegation that the Court might not consider itself competent to give an opinion on this question, and that even if it should consider itself competent, a favorable opinion would be unlikely. We also said that we were reluctant to go to the Court on a question the answer to which in our view was clear.

The Sixth Assembly postponed consideration of this draft resolution until the Seventh Session. While we would probably have no serious objection to submittal of this question to the Court if desired by others, it is far from certain that any tangible results would be achieved. However, if the Court should give a favorable opinion, it might be easier to override a double veto in the Security Council or for the Assembly to take action to admit applicants.

3. Security Council Determination that a Negative Vote on a Membership Application Which is Cast on Non-Charter Grounds is Null and Void

During the Sixth Session there was also some discussion of the possibility of a Security Council determination that a negative vote on a membership application cast solely on non-Charter grounds does not constitute a legal vote and is null and void. It was suggested that the President of the Council might make such a determination or that he might refer the matter to the Security Council.

A Presidential ruling of this nature would establish a far-reaching precedent that the President has a right to rule on the effect of a Member’s vote. To permit the President to make such a ruling subject only to rule 30 of the Council’s Rules of Procedure would mean that the legality and effect of a Member’s vote would be left in the hands of the President and four other Members. The dangers of abuse of such a procedure cannot be minimized. For instance, on such a precedent the Soviet Chairman might rule that the vote of the Chinese National representative is illegal and it might not be possible to get seven votes to override him.

Referral of the question of the legality of a Member’s vote to the Security Council would be less objectionable since seven votes would be required to declare a Member’s vote illegal. However, there is no [Page 829] clear authority for such a procedure in the Charter or in past Security Council practice. Further, the question of the legality of a Member’s vote would itself appear to be subject to the veto.

In addition, it should be noted that the Soviet Union, by vetoing on alleged Charter grounds or by stating no reasons, could complicate a Security Council determination that a negative vote based on grounds lying outside of Article 4 is null and void.

4. Referral to the International Court of Justice of the Question Whether a Negative Vote of a Permanent Member Cast on Non-Charter Grounds can Nullify a Recommendation for Admission Which Has Obtained Seven or More Votes.

The General Assembly could request an advisory opinion from the International Court of Justice as to the legality and effect of a Soviet negative vote cast on non-Charter grounds. At the last session of the Assembly, Nisot (Belgium) informally suggested a revision of the Central American draft resolution (see alternative 2 above) along these lines. The Department preferred Nisot’s suggestion to the Central American draft because it believed that the Court might be more likely to consider a question framed in this manner and because we saw more likelihood of a favorable answer. However, it must be realized that the possibility of a favorable opinion from the Court on this question might still be remote. In addition, the Soviet Union could negate the usefulness of referral of the question to the Court by vetoing membership applications on alleged Charter grounds. However, if the Court did give a favorable opinion, there would be some basis for Assembly action to admit applicants.

5. Separate General Assembly Action to Admit Applicants Even Though The Security Council has not Made a Favorable Recommendation Because of the Negative Vote of a Permanent Member

The International Court of Justice has stated that the General Assembly cannot admit a state to membership in the absence of a favorable Security Council recommendation. We have repeatedly supported this view and the General Assembly and the Security Council have consistently proceeded on this basis.

Nevertheless, some Members, from the Latin American group, still contend that if the Assembly is not obliged to endorse a favorable Security Council recommendation, it need not be bound by an unfavorable decision and can itself proceed to admit Members. Moreover, the Italian Government last year attempted to justify independent action by the Assembly when it pressed us to agree that the General Assembly could admit Italy since the U.S.S.R. had vetoed its application on other than Charter grounds. However, we maintained that even though a negative vote is cast on non-Charter grounds, it does not follow that this negative vote is null and void or that the General [Page 830] Assembly is in a position to assume this. Further, we feared that acceptance of the Italian thesis could lead to a gradual whittling away of the veto power.

Nevertheless, a number of members may come to support independent General Assembly action if no other solution to the membership problem develops. In this connection, it will be recalled that some of the Latin American countries regard the Peruvian resolution as a first step in the elimination of the role of the Security Council in admission procedures. This resolution declares that the judgment of the United Nations on the admission of new members ought to be based exclusively on the conditions contained in Article 4; recommends that the Security Council, in considering membership applications, take into account such facts and evidence as applicants may present; and that it base its action exclusively on the conditions contained in the Charter and on the facts establishing the existence of these conditions. If the Security Council should reconsider applicants in the light of this resolution, and if the Soviet Union should continue to veto on other than Charter grounds, a number of delegations may attempt to use the provisions of this resolution to justify independent General Assembly action without prior recourse to the Court.

In support of such action, it might be pointed out that in the case of the extension of the term of office of the Secretary-General, the United States, during the Plenary debate, based its position in favor of General Assembly action mainly on grounds of political necessity. However, it is also clear that there is a firmer legal basis for independent Assembly action to extend the Secretary General’s term of office than for independent Assembly action to admit new members. Furthermore, independent General Assembly action in the case of membership could have serious implications regarding the powers of the Security Council, a matter of vital interest to us. If the General Assembly assumed the power to admit applicants in the absence of a Security Council recommendation on the grounds that a permanent Member’s vote was cast on illegal grounds, it might in the future assume Security Council powers over other matters. Furthermore, the Soviet Union could frustrate independent General Assembly action by vetoing the non-Soviet candidates on alleged Charter grounds. In particular the Soviet Union, technically at war with Japan, might charge that Japan is not a peace-loving state.

  1. Addressed to the Director of the Office of UN Political and Security Affairs (Wainhouse) and the Assistant Legal Adviser for UN Affairs (Meeker).
  2. Drafted by Paul W. Jones, UNP.