Memorandum by the Assistant Legal Adviser for United Nations Affairs (Meeker) to the Director of the Office of Dependent Area Affairs (Gerig)1

  • Subject:
  • Reference of Legal Questions re Marshall Islands Nuclear Tests to ICJ

The following answers are given in response to the questions presented in your memorandum of July 19 on the above subject.2

1. In the view of this Office, it is within the competence of the General Assembly to seek an International Court of Justice advisory opinion on the legality of our tests. We know of no legal basis for keeping the Indian proposal off the Assembly’s agenda. Article 10 of the Charter provides that the General Assembly “may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter …” (Underscoring supplied.) The Indian proposal, at least in so far as discussion of the matter by the General Assembly is concerned, certainly falls within these broad bounds.

It should also be noted that Article 96, paragraph 1 of the Charter authorizes the General Assembly to “request the International Court of Justice to give an advisory opinion on any legal question”.

2. Paragraph 1 of Article 12 of the Charter is as follows:

“While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.”

Consequently, as long as the Security Council is considering the matter, the General Assembly could discuss it but not make recommendations concerning it.

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3. The strength of the legal position of the United States would vary greatly with the drafting of the questions to be asked of the ICJ. Therefore, no generalized answer can be given to your third question. However, our over-all position is not invincible, and we believe that every effort should be made to keep the problem from being sent to the ICJ.

4. It seems probable that a two-thirds majority would be required for the referral to the Court of the question of the legality of our tests, since under Article 18(2) “questions relating to the operation of the trusteeship system” require such a majority. The question in the instant case appears to fall squarely within the “operation of the trusteeship system”.

However, an argument may be made that, regardless of subject matter, requests to the ICJ for advisory opinions are not important matters and require only a simple majority. There are precedents on both sides of this issue. In the consideration of the problem of Indians in South Africa the Assembly, acting under Article 18(3), decided 29–24 that the particular request in that case was an important matter and required a two-thirds majority; and the proposal to refer failed to secure this majority. Conversely, in relation to resolution 338 (IV) submitting questions concerning South West Africa, the President of the Assembly ruled that only a simple majority was required for a referral to the Court. Although the resolution as a whole passed 40–7–4, the second part of operative paragraph 2 was adopted only by a vote of 21–20–11, less than a two-thirds majority. This is a precedent for the proposition that while the substantive agenda item may be regarded as being “important” under Article 18, a request to the ICJ by separate resolution regarding the same agenda item need not be regarded as “important”.

In any event, even if it is decided that the request for an advisory opinion in the present case does not fall within the provisions of Article 18 (2), it should be kept in mind that under Article 18 (3) a simple majority can decide that a two-thirds majority shall be required for passage of the resolution containing the referral.

  1. This memorandum was sent jointly by Meeker and a member of his staffs Bernard Fensterwald; it was drafted by Fensterwald.
  2. Supra.