Foreign Relations of the United States, 1952–1954, United Nations Affairs, Volume III

UNP files, lot 59 D 237, “Membership”

Memorandum by the Assistant Legal Adviser for United Nations Affairs (Meeker) to the Director of the Office of United Nations Political and Security Affairs (Wainhouse)¹

confidential

[Washington,] April 7, 1953.

United Nations Membership Question

In UNP’s memorandum of March 26² there is a request for a legal analysis of the proposals which Argentina, El Salvador and Peru have made regarding admissions of new members to the United Nations and which will be under discussion by the Special Committee on Membership.

Winnowed down to their barest essentials, the plans, which are overlapping in part, can be stated in the following terms. Argentina submits that the Assembly can admit a member upon a “negative recommendation” of the Security Council. El Salvador contends that a permanent member of the Security Council cannot legally veto a recommendation for admission because the question is of a procedural nature. Peru maintains that the Council has already affirmatively recommended a number of candidates despite Soviet vetoes, because the USSR has, by its proposed admission of such candidates in a “package deal”, officially evidenced its conclusion that they are qualified for membership.

i. argentine proposal

The latest restatement of the Argentine plan is contained in document A/AC.61/L.36 (13 December 1952), which is a proposed amendment to the Central American (i.e., Salvadoran) plan (A/AC.61/L.31). The important paragraphs of the resolution as advocated by Argentina are as follows:

“Considering that, when consulted about the scope of Article 2, paragraph 4 of the Charter, the Advisory Committee of Jurists at the San Francisco Conference was of the unanimous opinion that, under that provision, the General Assembly could accept or reject a recommendation for the admission of a new Member, ‘or a recommendation to the effect that a given State should not be admitted to the United Nations’,

“Considering that, at its fifteenth meeting on 18 June, Committee II/1 of the San Francisco Conference agreed with that interpretation and expressly decided to include it in the records of the meeting as the only authorized interpretation of that provision, which decision was subsequently approved by Committee II at its fourth meeting on 21 June and by the Conference at its ninth plenary meeting on 25 June,

“Considering that, in accordance with that interpretation, the powers of the Assembly to ‘reject a recommendation to the effect that a given State should not be admitted to the United Nations’ and accordingly to decide favourably on its admission to membership, are expressly recognized,

“Resolves to consider each application on its merits and to decide on it accordingly.”

The Argentine proposal has been previously discussed by the General Assembly. On November 22, 1949, the Assembly submitted a question in the following form to the International Court of Justice for an advisory opinion: “Can the admission of a State to membership in the United Nations, pursuant to Article 4, paragraph 2 of the Charter, be effected by a decision of the General Assembly when the Security Council has made no recommendation for admission by reason of the candidate failing to obtain the requisite majority or of the negative vote of a permanent Member upon a resolution so to recommend?” In a written statement to the Court (Pleadings in Advisory Opinion of March 3, 1950, pp. 110–122) the United States submitted that the Assembly is not empowered to admit a state to United Nations membership in the absence of an affirmative recommendation of the Council. The statement supplies numerous arguments and evidence to support its conclusion. These can be stated here briefly.

(a) Charter language. According to the text of Article 4(2), the decision of the Assembly is to be made “upon the recommendation of the Security Council”, not “after having received the recommendations of the Security Council”. The language used thus indicates that the Security Council’s role in admission to membership is not merely consultative.

(b) Construction of Article 4(2) by the Assembly and Council. The Assembly discussed the Argentine proposal at its Second session in 1947. In the First Committee debate the resolution was opposed by nearly all of the speakers (Summary Records of First Committee, pp. 343, 349, 354, 360, 363, 365, 372, 378, 379, 381, 383, 384, 388; but see pp. 343, 364 for statements pro), and Argentina did not insist on a vote (ibid., p. 396). A similar proposal was submitted by Argentina at the Third Session (A/AC.24/15). Again a large majority found the proposal unacceptable and it was withdrawn by its sponsor. (Summary Records of Ad Hoc Political Committee, pp. 58, 63 f, 65 ff, 77 f, 81, f, 84 f, 87 f, 90, 91, 95, 97 f, 98, 99, 100, 102, 103, 110, 115, 116, 118, 134; contra, pp. 106, 107, 109, 112.)

The rules of procedure of both the Assembly and the Council are inconsistent with the Argentine proposal. Rule 115 of the Assembly’s Provisional Rules, adopted in January 1946, provided for Assembly consideration only in case of an affirmative recommendation (“If the Security Council recommends the applicant State for membership, the General Assembly shall consider, etc.”). Otherwise, the rules made no provision for Assembly action.

In 1946 the Assembly appointed a committee to draw up rules relating to admission which would be acceptable to the Assembly and the Council. The Assembly Committee decided upon the following proposition as a basis for its work: “It was agreed that the General Assembly was not entitled under Article 4, 2, of the Charter to decide to admit a new Member except upon an affirmative recommendation of the Security Council.” (Document A/384, p. 2.) No rule authorizing the Assembly to act without an affirmative recommendation was suggested. The rules which were agreed upon by the special committees and adopted by the Council and Assembly, and those which are in effect today, merely make explicit the right of the Assembly to request the Council to reconsider applications in cases where the Council has not recommended the applicant or has postponed consideration of the application. (See Security Council Rules 58 to 60; General Assembly Rules 123 to 127.)^*

The practice of the Assembly and Council has been uniformly inconsistent with the Argentine proposal. At each of its sessions the Assembly has been faced with the problem of applicants which have failed to get an affirmative Security Council recommendation. Rather than seek to admit applicants defeated by the veto in the Security Council, the Assembly has requested their reconsideration by the Council, and the Assembly has given its endorsement of those applicants it considered qualified for admission.

As regards Security Council practice, no “negative recommendations” have been forwarded to the Assembly. When resolutions containing applications for membership have been put to the vote and have failed to obtain seven votes including the concurring votes of the permanent members, the President of the Council has announced without exception that the resolutions failed to carry. The Council has never seriously considered that such an action constituted a “negative recommendation”. With regard to membership the Council has considered itself capable only of making an affirmative recommendation or none at all.

The arguments and conclusions advanced by the United States and others were accepted by the International Court of Justice and embodied in its Advisory Opinion of March 3, 1950. The following excerpts from that Opinion are particularly pertinent:

“…It is in the nature of things that the recommendation should come before the decision. The word ‘recommendation’, and the word ‘upon’ preceding it, imply the idea that the recommendation is the foundation of the decision to admit, and that the latter rests upon the recommendation. Both these acts are indispensable to form the judgment of the Organization to which the previous paragraph of Article 4 refers. The text under consideration means that the General Assembly can only decide to admit upon the recommendation of the Security Council; it determines the respective roles of the two organs, whose combined action is required before admission can be effected: in other words, the recommendation of the Security Council is the condition precedent to the decision of the Assembly by which the admission is effected.

“In one of the written statements placed before the Court, an attempt was made to attribute to paragraph 2 of Article 4 a different meaning. The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning are ambiguous or lead to an unreasonable result, then, and then only, must the Court, by resort to other methods of interpretation, seek to ascertain what the parties really did mean when they used these words.

* * *³

“When the Court can give effect to a provision of a treaty by giving to the words used in it their natural and ordinary meaning, it may not interpret the words by seeking to give them some other meaning. In the present case the Court finds no difficulty in ascertaining the natural and ordinary meaning of the words in question and no difficulty in giving effect to them. Some of the written statements submitted to the Court have invited it to investigate the travaux preparatoires of the Charter. Having regard, however, to the considerations above stated, the Court is of the opinion that it is not permissible, in this case, to resort to travaux preparatoires.

“The conclusions to which the Court is led by the text of Article 4, paragraph 2, are fully confirmed by the structure of the Charter, and particularly by the relations established by it between the General Assembly and the Security Council.

* * *

“To hold that the General Assembly has power to admit a State to membership in the absence of a recommendation of the Security Council would be to deprive the Security Council of an important power which has been entrusted to it by the Charter. It would almost nullify the role of the Security Council in the exercise of one of the essential functions of the Organization. It would mean that the Security Council would have merely to study the case, present a report, give advice, and express an opinion. This is not what Article 4, paragraph 2, says.

* * *

“In consequence, it is impossible to admit that the General Assembly has the power to attribute to a vote of the Security Council the character of a recommendation when the Council itself considers that no such recommendation has been made.” (Reports of Judgments, Advisory Opinions and Orders, 1950, pp. 7–10.)

Argentina has advanced, and will probably continue to advance, two reasons why the Assembly should refuse to accept the Court’s opinion. (1) The Court wrongly ignored the travaux preparatoires which, Argentina alleges, support its conclusions. (2) The Court’s Advisory Opinion is not binding on the Assembly.

In regard to the travaux preparatoires or legislative history of Article 4(2), the Argentine representative made the following statement to the Ad Hoc Political Committee on December 15, 1952 in support of his proposal:

“The matter had been especially considered by the Advisory Committee of Jurists and then in Committee II and finally at the plenary meetings of the Conference. The Advisory Committee of Jurists had unanimously been of the opinion that the text of Article 4, paragraph 2, clearly established the power of the General Assembly first to accept or reject the recommendation for the admission of a new Member and, secondly, to accept or reject a recommendation that a State should not be admitted to the United Nations. That point of view was also clearly stated in the report of Committee II.^† Mr. Ferrer Vieyra added that no representatives had impugned the authenticity of the documents to which he was referring. But certain representatives had stated and continued to state that there could be no negative recommendations as regards the admission of new Members.” (A/AC.61/SR 45, p. 280).

This question, which the International Court of Justice did not consider it necessary to discuss, was covered in detail in the written statement submitted to the Court by the United States. Chapter V, Section B(2) of the Dumbarton Oaks proposals states that “the General Assembly should be empowered to admit new Members to the Organization upon the recommendation of the Security Council.” The comments on, and amendments to, this paragraph which were submitted by governments prior to the San Francisco Conference clearly reflect the understanding that the provision meant that no State could be admitted without a favorable recommendation. The Australian and Egyptian amendments show this most clearly. Australia proposed that the only role of the Security Council would be one of recommendation in regard to the admission of states at war with Members since 1939. (Doc. 2, G/14(1), UNCIO Docs., Vol. 3, p. 545). Egypt suggested that “the General Assembly shall be empowered, after taking the advice of the Security Council, to admit new Members to the Organization” (Doc. 2, G/7(q), id., p. 456).

At San Francisco the matter was considered by Committee II/1. The whole assumption of the discussions was that under the Dumbarton Oaks proposal the assent of the Security Council was required. At its 11th meeting on May 25, Committee II/1 approved by a vote of 28 to 0 the following text: “The General Assembly may admit new Members to the Organization upon recommendation of the Security Council” (Doc. 594, UNCIO Docs., Vol. 8, p. 398). The text is the same as that of Dumbarton Oaks except that the word “may” replaces “shall be empowered to”. This completed the only substantive phase of the consideration of this provision. The changes which were subsequently considered and adopted were of a drafting character.

The provision was sent to the Co-ordination Committee and in turn to the Advisory Committee of Jurists. Both of these bodies were to ascertain whether substantive decisions of technical committees (such as Committee II/1) were embodied in satisfactory language. They were to refrain from substantive decisions, and the changes that they suggested should be appraised in the light of their functions.

The Co-ordination Committee redrafted the provision, but, foreseeing translation difficulties, referred the text to the Advisory Committee of Jurists. This Committee adopted a new text, which is the final form of Article 4(2): “The admission of any such State to membership will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”

The intent of this change can most adequately be explained by quoting verbatim from the United States written statement to the Court (pp. 120–122):

“The question was raised in the Co-ordination Committee whether the new language had made it clear that the Assembly might accept or reject a recommendation of the Security Council. The text previously adopted by the Co-ordination Committee clearly left some discretion to the General Assembly—’states may be admitted to membership by the General Assembly upon the recommendation of the Security Council.’ The new language of the Advisory Committee of Jurists—’the admission … will be effected by a decision of the General Assembly upon the recommendation of the Security Council’—might possibly be understood to require the General Assembly to admit a State if recommended by the Security Council.

“The Committee of Jurists included in the report of its 14th Meeting on June 18 this statement:

“‘A question from the Co-ordination Committee as to whether paragraph 2 of Article 4 made it clear that the Assembly might accept or reject a recommendation of the Security Council was answered in the sense that the text was clear in this respect.’^‡

“During the discussion of the Jurists’ text by Committee II/1 at its 15th Meeting on June 18, the secretary of that Committee read a letter which he had received from the secretary of the Advisory Committee of Jurists, as follows (verbatim minutes):

“‘Reference is made to the concern which you expressed as to whether the text of Chapter V, Section B, paragraph 2, as approved by the Co-ordination Committee makes clear that the General Assembly had power to accept or reject a recommendation by the Security Council. The matter was discussed by the Committee of Jurists at its meeting this morning (June 16). The Committee believes that the word “decision” leaves no doubt that the General Assembly may accept or reject a recommendation from the Security Council. That is to say the General Assembly may accept or reject a recommendation for the admission of a new Member or it might accept or reject a recommendation to the effect that a given State should not be admitted to the United Nations. Notice is taken of the language employed in what is now Article 20 concerning the general power of the Assembly and voting therein. That is the paragraph 2, Section C, Chapter V, which states that a two-thirds majority of the Assembly is required to admit a Member.’

“The Summary Report of that same meeting of Committee II/1 contained the observation:

“‘The Secretary reported that he had been advised by the Secretary of the Advisory Committee of Jurists that the Committee felt these texts would not in any way weaken the original text adopted by the Committee. In the light of this interpretation, the Committee approved the texts.’^§

“The second report of the Rapporteur of Committee II/1 for submission to Committee II, revised and circulated to the Members of the Committee for their approval June 19, 1945, included the following:

“‘The Committee considered a revision of the text of this paragraph which was under consideration by the Co-ordination Committee in order to determine whether the power of the Assembly to admit new Members on recommendation of the Security Council was in no way weakened by the proposed text.

“‘The Committee was advised that the new text did not, in the view of the Advisory Committee of Jurists, weaken the right of the Assembly to accept or reject a recommendation for the admission of a new Member, or a recommendation to the effect that a given State should not be admitted to the United Nations.

“The Committee was advised that the new text did not, in the included in its minutes as the one that should be given to this provision of the Charter, and on this basis approved the text as suggested by the Co-ordination Committee.’^║

“Taken as a whole, therefore, the legislative history of Article 4, paragraph 2, clearly supports the conclusion that an affirmative recommendation of the Security Council is necessary for the admission of any State to membership. The question before the Court was squarely before Committee II/1 in the form of the Egyptian amendment and, to a certain extent, in the Australian amendment. The purposes of these amendments were made fully clear, and the amendments were rejected. Their rejection reflects clearly the Committee’s understanding of the text which it then adopted.

“The two changes subsequently made in the Committee II/1 text had nothing to do with the question before the Court. They were made for the drafting purposes set forth above. The inclusion, by the Secretary of the Advisory Committee of Jurists, of the clause ‘or reject a recommendation to the effect that a given State should not be admitted to the United Nations’ in his letter explaining that the Advisory Committee of Jurists did not consider the Assembly’s rights weakened by the new text, and the inclusion of this language in the interpretative statement accepted by Committee II/1, cannot be taken as showing a design to make the Security Council’s function purely consultative.

“It should be noted that the statement gives no indication concerning the nature of ‘the right to reject’ an unfavorable recommendation of the Security Council; it does not suggest that this right constitutes a power to admit a State in those circumstances. The right should probably be construed as merely the power to refer the application back to the Security Council for reconsideration. The surrounding circumstances make it impossible to accept the thesis that the right to reject constituted a power to admit an applicant without a favorable Security Council recommendation. For, if the new text indeed authorized the General Assembly to admit applicants without Security Council approval, it reversed all of the previous decisions on the main question that had arisen after the issue was presented to it by the Egyptian and Australian amendments, adopted a text which called for an affirmative Security Council recommendation. The new text was proposed for drafting reasons, and the only question raised was whether or not it had weakened the Assembly’s right. If it authorized the Assembly to act without a Security Council recommendation, it not only did not weaken the Assembly’s right under the previous text; it vastly broadened that right, granting everything sought to be covered by the Egyptian amendment and more than the Australian amendment was designed to accomplish. It is not reasonable to conclude that so complete a change was adopted without any explanation or discussion of its real scope but rather with explanations showing a far more limited purpose and character.”

Regarding the advisory character of the Court’s Opinion, the Argentine representative said to the Ad Hoc Political Committee that “an advisory opinion was not binding either on the Security Council or the General Assembly or even on the Court itself … and that it might be possible for the Court to change its opinion and move towards an interpretation more closely in keeping with the records of the San Francisco Conference.” There is a lack of clarity in both the meaning and significance of the thought that the Court’s opinion is not binding on the Court. The Court could not change its opinion on its own initiative, and it seems extremely doubtful that either the Assembly or another United Nations organ would request another advisory opinion on the exact same question. Although the Argentine representative was correct in stating that the Opinion was not “binding” on either the Assembly or Council, neither body will lightly ignore an Advisory Opinion which has been requested. The Court is the “principal judicial organ of the United Nations”, and its Opinions should be given the highest consideration. Once an Advisory Opinion has been sought and received, the requesting body as a practical matter has less untrammeled discretion in making a decision. A decision which runs counter to an Advisory Opinion would have to be supported by very weighty considerations. As a matter of practice, no organ of the United Nations has ever seen fit to act contrary to such an Opinion.

The question raised by the Argentine proposal is dealt with by Hans Kelsen in his work The Law of the United Nations (1950), pp. 63–64. Kelsen concludes similarly that the Argentine interpretation of Article 4(2) is without foundation.

ii. salvadoran proposal

The latest version of the Central American or Salvadoran proposal is contained in document A/AC.61/L.31 of December 10, 1952. The important parts of the draft resolution, beginning with the 4th preambular paragraph, are as follows:

“Considering that in order to secure the adoption at the Conference of San Francisco of the rule regarding the unanimity of the permanent members of the Security Council it was necessary for the sponsoring Powers to settle the doubts of various delegations as to the scope of that rule, and for that purpose to issue the Declaration of 7 June 1945 in which it is stated that the permanent members may make use of the veto in cases which relate to the maintenance of international peace and security and which, according to the Declaration, consist exclusively of cases in which the Security Council has to make decisions which involve its taking direct measures in connexion with settlement of disputes, adjustment of situations likely to lead to disputes, determination of threats to the peace, removal of threats to the peace and suppression of breaches of the peace;

“Considering that according to that same Declaration restricting the scope of the veto, decisions of the Security Council which do not involve the taking of any of the measures previously referred to, but which are connected with the maintenance of peace and international security are to be taken by a procedural vote, that is to say by the vote of any seven Members of the Council;

“Considering that the expression ‘a procedural vote’ used in the Declaration is itself proof that the subjects to which it refers may not be procedural matters in the strict sense of the term but are governed, by assimilation thereto, as if they were procedural;

“Considering that, although it is a subject which may be connected with the maintenance of peace and security, the admission of new members to the United Nations is not included among the cases in which, according to the permanent members of the Council themselves, they may make legitimate use of the privilege of the veto, but is included among the cases which are dealt with by a procedural vote;

“Considering that, as the organ with which responsibility for deciding on applications for the admission of new members chiefly rests, the General Assembly has the right and also the duty to decide on the cases pending, and in so doing can and should apply the criterion maintained in the Declaration of San Francisco of 7 June 1945, according to which the Security Council acts on this subject by a procedural vote;

“Decides to consider separately each of the applications for admission that are pending and in each case to decide in favour of or against admission in accordance with the merits of the case and the results of a vote taken in the Security Council in conformity with Article 27, paragraph 2, of the Charter.”

At the 42nd meeting of the Ad Hoc Political Committee on December 12, 1952, the representative of El Salvador gave a lengthy explanation of the proposal. He recalled the circumstances of the acceptance by the San Francisco Conference of the Yalta voting formula. The core of his argument is that (1) the Four-Power Statement of June 7, 1945 (UNCIO Doc. 852, III/1/37(1)) was “what was known, in the law of contract, as an offer” and that the offer had been accepted by the other Members and had become a part of the Charter; and (2) paragraph 1 of the Statement “contained a complete enumeration of cases … in which the permanent members could use the right of veto” and these cases “were exclusively those in which the Security Council had to make decisions which involved its taking direct measures “regarding the maintenance of peace and security.”

The voting formula now contained in Article 27 is that which was drafted at Yalta. At the Yalta Conference Secretary of State Stettinius explained the proposed formula to Marshal Stalin and Prime Minister Churchill, indicating what categories of decisions by the Council would require the vote of the permanent members. In the first of these categories he listed recommendations on the admission of new members. The question which is raised by El Salvador is whether the Four-Power Statement had the effect of excluding membership from the list of vetoable questions despite the understanding at Yalta and the fact that the Yalta voting formula was embodied in Article 27 of the Charter. The preponderance of the evidence militates against such a conclusion.

No one paragraph of the Four-Power Statement can read apart from the whole document. Paragraph I(1), on which the Salvadoran representative places so much stress, must be read in conjunction with the other parts of the Statement, and particularly with paragraphs I(4) and II (2). Paragraph I(1) states, in part:

“…Under Chapter VIII, the Council will have to make decisions which involve its taking direct measures in connection with settlement of disputes, adjustment of situations likely to lead to disputes, determination of threats to the peace, removal of threats to the peace, and suppression of breaches of the peace. It will also have to make decisions which do not involve the taking of such measures. The Yalta formula provides that the second of these two groups of decisions will be governed by a procedural vote—that is, the vote of any seven members. The first group of decisions will be governed by a qualified vote—that is, the vote of seven members, including the concurring votes of the five permanent members, subject to the proviso that in decisions under Section A and a part of Section C of Chapter VIII parties to a dispute shall abstain from voting.”

Paragraphs I(2) and I(3) enumerate certain types of decisions which will not require a qualified vote. Decisions regarding admission are not included in the enumerated list, and those that are enumerated are quite dissimilar in kind and importance from decisions on admissions. Paragraph I(4) says that once you go beyond the type of decision that has been enumerated in paragraph I(2), “decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its reponsibilities to invoke measures of enforcement under Section B, Chapter VIII.” The paragraph enumerates examples of decisions which might begin such a chain and says that such decisions are subject to the veto. The admission of new members is not included in this enumeration either.

Part I of the San Francisco statement thus shows that the sponsoring powers were not addressing themselves to such a matter as membership when they wrote paragraphs I(1) and I(2). They did, however, include a later paragraph which in a general way governs the matters not covered in paragraphs I(1) and I(2). Paragraph II(2) makes clear that, where there is uncertainty whether a decision is procedural or substantive, only a qualified vote of the Council can determine that it is procedural. In other words, the double veto is to apply in cases of doubt. The Security Council in its practice has apparently never entertained a doubt as to the substantive nature of admissions questions.

The Salvadoran argument depends upon the Four-Power Statement. When that Statement is read in its entirety, it is seen that the Statement does not support the Salvadoran contention, but, together with subsequent practice, negates that contention.

The Four-Power Statement is only one part of the legislative history of Article 27. The Dumbarton Oaks proposals, the discussions at Yalta, and the Yalta voting formula are all part of this history. There remains the significant fact that after all of the discussions at San Francisco and the issuance of the Four-Power Statement, the Yalta formula was left intact in Article 27. Equally important, however, is the post-San Francisco application of Article 27. This history contains no evidence whatever that Article 27 should be interpreted so as to make decisions on membership subject to an unqualified vote of any seven members of the Council.

By resolution 117(II) of November 21, 1947, the Assembly requested the Interim Committee to make a broad study of the veto problem in the Council. The report of the Committee to the Assembly (Document A/578 of July 15, 1948) contains, inter alia, two lists of types of decisions which are made by the Council. In one list were included “decisions which are of a procedural character within the meaning of Article 27, paragraph 2, of the Charter.” Decisions in regard to admission of new members were not included in this list. The other list included “decisions which the Interim Committee recommended should be adopted by the vote of any seven members of the Security Council, whether these decisions are considered procedural or non-procedural.”Decisions in regard to membership were included in this list.

The Assembly considered the Committee’s report in the spring of 1949 and passed resolution 267(III) on the subject. The resolution recommends to members of the Council that they consider as procedural the decisions listed in an annex to the Assembly’s resolution. Like the Interim Committee’s list of procedural decisions, the Assembly’s list did not include membership. The Assembly also considered the Interim Committee’s second list of decisions, which the Committee felt should be adopted by an unqualified vote, whether the decisions be deemed procedural or non-procedural. The Assembly modified somewhat the Interim Committee’s recommendation and in doing so ruled out any implication that at least some decisions on the second list might be procedural. The Assembly recommended to the permanent members of the Security Council “that they seek agreement among themselves upon what possible decisions by the Security Council they might for-bear to exercise their veto, when seven affirmative votes have already been cast in the Council, giving favorable consideration to the list of such decisions contained” in the second list of the Interim Committee (underscoring supplied). This recommendation is addressed to the permanent members and not to the whole Council; it requests that the permanent members “forbear to exercise their veto” on certain questions, including the question of admission of new members.

Again, in resolution 296K(IV) of November 22, 1949, the Assembly requested the permanent members of the Council “to refrain from the use of the veto in connexion with the recommendation of States for membership in the United Nations.” Thus the Assembly, while requesting that the veto right not be used, has recognized that this right exists in connection with membership applications.

There are still further factors pointing to the conclusion that decisions on membership are not procedural and are subject to a qualified vote:

(1) Under paragraph 2 of Article 18 of the Charter the question of admission of new Members is included in the list of decisions of the Assembly on “important questions” which “shall be made by a two-thirds majority” rather than by a simple majority.

(2) In the last six years the USSR has cast a large number of negative votes in the Security Council on membership applications. Without exception, these have been treated by the 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.

(3) In regard to United States interpretation we should recall that 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. The clear implication was that the veto did apply on membership questions.

(4) The Salvadoran proposal in effect would constitute an attempt on the part of the Assembly to interpret Article 27, which deals exclusively with the Security Council, in a matter entirely repugnant to the interpretation which has consistently been given to that Article by the Council itself.

The representative of El Salvador recognized this principle in part when he said that “it had been decided that each United Nations body should have the right to interpret those provisions of the Charter for the application of which it was responsible” (42nd meeting of the Ad Hoc Political Committee). However, he completely perverted the principle in application when he continued by saying: “If the Security Council informed the General Assembly that seven or more of its members had voted in favor of the admission of a State but that one of the permanent members of the Council had voted against such admission, it would be for the General Assembly, and not for the Security Council, to interpret and apply the provisions of Article 27 of the Charter and to decide whether or not there was a favorable recommendation by the Security Council.” Not only is this proposition lacking in logic, it also is based on the fallacy that admission of new members is the sole responsibility of the Assembly, with the Council playing a very minor advisory role. The International Court of Justice pointed out the fallacy of any such idea in its advisory opinion of March 3, 1950: “The General Assembly and the Security Council are both principal organs of the United Nations. The Charter does not place the Security Council in a subordinate position. Article 24 confers upon it ‘primary responsibility for the maintenance of peace and security’, and the Charter grants it for this purpose certain powers of decision. Under Articles 4, 5, and 6, the Security Council co-operates with the General Assembly in matters of admission to membership” etc. (underscoring supplied).

iii. peruvian proposal

The Peruvian draft resolution, which is contained in document A/AC.61/L.30 of December 8, 1952, states the philosophy of the Salvadoran proposal but is based on a further proposition. Mr. Belaunde, the Peruvian spokesman summed up the purposes of the proposal as follows:

“…it was the object of the Peruvian draft resolution to make it clear that, in conformity with the debates at the San Francisco Conference, (1) the Security Council’s vote on the question of the admission of new Members should be a procedural vote to which the unanimity rule did not apply, (2) to determine the circumstances in which the veto was legitimate, and (3) to ensure, by referring to the precedent of the ‘Uniting for Peace’ resolution, that the application of the Charter was not paralysed.”

The first object is the same as that of the Salvadoran proposal and no further comment is required.

The second and third objects are interconnected. They envisage a determination by the Assembly that a negative vote by a permanent Member of the Security Council is not “legitimate” when cast contrary to the International Court of Justice Opinion of 1948, and a decision by the Assembly to ignore a veto which it has determined not to be “legitimate”. In his presentation to the Ad Hoc Committee at its 42nd meeting Mr. Belaunde said in this regard:

“It might admittedly be asked who or what would determine whether or not the reasons prompting a permanent Member’s negative vote were legitimate. The answer was clear: common sense. Surely, it was not arguable that the USSR’s veto on the admission of certain States was legitimate when the USSR had itself conceded that those States qualified for admission and had proposed that they should be admitted on condition that other candidates it supported were also admitted.” (Underscoring supplied).

Mr. Belaunde’s answer in reply to “what” has certain merit. As to “who” should make the determination, the import of his whole statement is that it should be the Assembly.

Each major organ of the United Nations has the prerogative of interpreting its own actions. Although there is no specific reference to interpretations in the Charter, the final report of Committee IV/2 of the San Francisco Conference contains the following statement: “In the course of the operations from day to day of the various organs of the Organization, it is inevitable that each organ will interpret such parts of the Charter as are applicable to its particular functions.” (UNCIO Doc. 933, IV/2/42(2), p. 7). Even the International Court of Justice, the highest judicial organ of the United Nations, can give only an advisory opinion on questions of interpretations regarding the functioning of other United Nations organs under the Charter.

Mr. Vieyra of Argentina pointed this out very clearly at the 45th meeting of the Ad Hoc Political Committee when he said that the advisory opinion of the International Court of Justice of March 3, 1950 “was not binding either on the Security Council or the General Assembly.” If the Court cannot give interpretations of the Charter which are legally binding on the Assembly or Council, a fortiori neither the Assembly or Council has the ability to give an interpretation binding on the other.

If a Soviet veto is imposed on illegal grounds, it is the Council, and not some other Organ, which should determine the illegality and the consequences thereof. The Council might request the International Court of Justice’s aid in this matter, but both the Council and Assembly have refrained from putting this question to the Court in the past.

The Soviets have cast vetoes on membership resolutions more than two dozen times. In each case the President of the Council has declared that the resolution failed because of the negative vote. The President never made any other ruling or failed to make this one, and his action was never challenged by a member of the Council.

Mr. Belaunde in the past, and obliquely in his present proposal, has advocated a unique theory. In essence it is that a “recommendation” need not be accomplished by one single action of the Council. It could be evidenced by the totality of favorable votes at various times, single or multiple proposals for admission, etc. For example, if an applicant received the favorable vote of five members including three permanent members at one juncture, and received the favorable vote of another permanent member at a later time, and was proposed in a package deal (which failed of adoption) by the remaining permanent member—that would constitute a favorable recommendation.

In addition to the recurrent weakness of having the Assembly find a recommendation of the Council when the Council found none, this theory runs counter to the usual practices of parliamentary bodies. Decisions are normally reached by a show of hands at one instant and not by a tally of those in favor, to one degree or another, at various times. The old expression “stand up and be counted” has a great deal of relevance to this situation.

iv. conclusion

The above analysis discloses that none of the Latin-American “juridical” plans for breaking the membership impasse rests on a good legal foundation. That of Peru in particular is ingenious. But it is believed that the International Court of Justice, if asked, would not answer that the Assembly could now admit to membership the nine applicants in the Soviet package which individually have received seven or more votes. The Court has already ruled out the Argentine plan. History and practice appear to condemn El Salvador’s proposal.

1. Drafted by Bernard Fensterwald, Office of the Assistant Legal Adviser for UN Affairs.
2. Not found in Department of State files.
3. When the Assembly’s Rules of Procedure were revised in 1949 (Res. 362(IV) of 22 October 1949), in the light of a study and recommendations by a Special Committee on Assembly Methods and Procedures, no proposals were adopted or made for changing the existing rules relating to Assembly consideration of membership applications. [Footnote in the source text.]
3. Asterisks in the source text.
4. See Documents of the United Nations Conference on International Organization, II/1/39. [Footnote in the source text.]
5. U.N.C.I.O. Document WD 404, CO/166. [Footnote in the source text.]
6. Doc. 1094, U.N.C.I.O. Documents, Vol. 8, pp. 487–488. [Footnote in the source text.]
7. Doc. 1092, Ibid., Vol. 8, p. 495. [Footnote in the source text.]