Memorandum by the Acting Legal Adviser (Tate) to the Deputy Under Secretary of State (Matthews)

  • Subject:
  • Admission of new members to UN

At the meeting in your office last week directed to the question of admitting new UN members, Mr. Ferguson, of S/P, urged that we try to see if there is some way of establishing that the veto does not apply to questions of membership when the Security Council is considering applications. This is a matter which has been considered in the Department from time to time in the past. The conclusion has uniformly been reached that the veto did apply to applications for membership. A review now undertaken by this Office of the relevant materials leads again to the same conclusion.

Does the Veto Apply?

Twice since 1945 the General Assembly has asked the International Court of Justice for advisory opinions on the membership problem. Neither time did the questions submitted ask the Court to pass on the issue of the veto’s applicability to membership applications in the Security Council. And in neither of its advisory opinions did the Court express any views on this matter. In the absence of any expression from the Court on this question, there are a number of other factors which point without exception to the conclusion that the veto applies.

At the Yalta Conference, when the Security Council voting formula now contained in Article 27 of the Charter was proposed by the United States, Secretary Stettinius explained to Marshal Stalin and Prime Minister Churchill what categories of decisions by the Council would require the vote of seven members including the concurring votes of the permanent members. In the first of these categories he listed recommendations on the admission of new members.

Later on, at the San Francisco Conference which completed the Charter, there was considerable discussion of the Yalta voting formula. In response to questions submitted by some of the smaller powers, the Big Four issued a statement on the veto. This statement did not mention recommendations of the Security Council on admission of new members, but in listing some of the Council decisions that would be considered procedural the statement made no mention of admission to membership.

In 1948, at the request of the General Assembly, the Interim Committee made a study of the veto. In its report to the General Assembly, the Interim Committee included two lists. In one of these were listed decisions of the Security Council which ought to be considered procedural. [Page 832] Recommendations of the Council on admission to membership were not included in this list. In the other list the Interim Committee mentioned a number of Council decisions on which the permanent members should, if possible, “forebear to exercise their veto”. This latter list included recommendations for the admission of new members. The General Assembly, when it considered the Interim Committee’s report, adopted in Resolution 267(III) recommendations following up the Interim Committee’s report. The first two operative paragraphs of the Assembly resolution dealt with the two lists prepared by the Interim Committee. The membership question was considered to be subject to veto.

Toward the close of the 80th Congress, Senator Vandenberg introduced in the Senate S. Res. 239, which was subsequently passed and has come to be known as the Vandenberg Resolution. Among its provisions, this resolution recommended that the United States seek to limit the exercise of the veto in the Security Council, in particular with respect to pacific settlement of disputes under Chapter VI of the Charter, and with respect to the admission of new members. Thus again the clear implication was that the veto did apply in the Security Council on membership questions.

In the last five years the Soviet Union has cast a large number of negative votes in the Security Council on Membership applications. Without exception, these have been treated by Security Council presidents as constituting vetoes which prevented the Security Council from making favorable recommendations on the applications in question. The Council has never sought to follow any other course than that adhered to by the Security Council presidents.

From the above, one can only conclude that recommendations of the Security Council under Article 4 of the Charter are subject to veto and have been uniformly so regarded. As pointed out earlier, this issue has never been put before the International Court of Justice. If it were now put before the Court, chances seem very slight indeed for a ruling that the veto does not apply.

Is a Veto Null and, Void When Based on Non-Charter Grounds?

There remains a further possibility which was considered last winter both in the Department and by the Assembly Delegation in Paris. An argument can be framed somewhat as follows: Where the Soviet Union has cast a negative vote on a membership application for the stated reason that other applicants were not being simultaneously admitted, the Soviet Union has violated Article 4 of the Charter as interpreted by the International Court, since members of the Security Council under the Court’s earlier advisory opinion are not at liberty to impose conditions on admission beyond the conditions which are stated in Article 4; a negative vote cast in violation of the Soviet Union’s obligations under the Charter is not merely illegal, but is void. Theoretically, [Page 833] this argument might be advanced in any of three forums: The Security Council, the General Assembly, or the International Court of Justice.

In the Security Council, it could not be expected to be successful, since a motion in the sense of this argument would be subject both to veto and double veto. It is highly unlikely that the Council could be persuaded to override a double veto of any motion to the effect that one or more Soviet vetoes were illegal and of no effect. Both in theory and in practice the overriding of a double veto in the Council is available only where a question is clearly procedural; it cannot be said that the question of the effect of a permanent member’s negative vote on an application for membership is a clearly procedural question.

If the argument were advanced in the General Assembly, it might conceivably be supported by a majority of UN members, or even a two-thirds majority. However, the procedure of having the Assembly change the interpretation placed by the Security Council on the Council’s own voting seems highly questionable, and would expose the proponents in the Assembly of such a procedure to well-founded charges of Charter violation. The consequences of following such a procedure in the Assembly would obviously be very serious if it were carried through. The result might well be the break-up of the Organization to which it had been sought to admit the new members.

The argument might also be advanced in the International Court of Justice, in connection with a request for advisory opinion coming from either the Security Council or the General Assembly. If the question were submitted to the Court, there seems a considerable chance that the Court might decline to give an answer on the ground that a political matter was involved. If it did answer, the Court in all probability would not conclude that the effect attributed by the Security Council itself to a negative vote cast by one of the permanent members should be overturned. The situation might be a little more favorable if the Security Council rather than the General Assembly had submitted the request for an advisory opinion, but it is by no means clear that the Security Council would be able to vote such a request to the Court, because of the veto and double veto. If the International Court reached the issue of whether a negative vote on membership constituted a veto (including the situation where the negative vote was based on non-Charter grounds), it seems unlikely that the Court would hold it to be not a veto.

The utility of advancing the above-suggested argument is probably rather limited in any event. In the Security Council’s past consideration of membership applications, the Soviet negative vote on applications favored by the Western Powers has only sometimes been based on non-Charter grounds. And future negative votes which the Soviet Union may decide to cast can easily be rested by the Soviet Delegate [Page 834] on a statement of Charter grounds. In the Security Council’s reconsideration of the old applications, including Italy’s (where Soviet vetoes have been cast on non-Charter grounds), the Soviet Union can now state that it opposes those applications for reasons which are recognized in Article 4 as legitimate.

Jack B. Tate