Foreign Relations of the United States, 1969–1976, Volume V, United Nations, 1969–1972

384. Information Memorandum From the Deputy Assistant Secretary of State for International Organization Affairs (Herz) to Secretary of State Rogers¹

Washington, July 28, 1971.

SUBJECT

• Chirep Scenario and Draft Resolution

I. Scenario

We think the following scenario is the best way to handle Dual Representation (DR) at this point:

A. Table a revised IQ and a separate DR Resolution.

B. Try to get priority in voting for the IQ and have it voted on ahead of the Albanian Resolution (AR).

C. Beyond this point, we must remain flexible in our tactics since everything will depend upon the voting situation we face.

D. Our present thinking is that if the IQ passes, we should still try to get priority for the DR resolution. If DR is adopted, we would argue that the matter is decided and that the AR should not be put to the vote.

E. If the IQ fails, or if we do not get priority for DR, make a strong effort to amend the AR to knock out the language that would result in ROC ouster. If we are unsuccessful, and if the AR passes in unamended form, the issue will probably have been decided then and there and our DR resolution probably will not even come up for a vote.

II. Resolutions

There are four considerations that seem particularly important in framing Chirep resolutions:

(1) The impact of the language used on domestic and international public opinion;

(2) The impact on our relations with Peking and Taipei;

(3) Vote getting appeal in the General Assembly;

(4) Legal problems that particular turns of phrase might involve— not just for the present but for the future as well.

A. The IQ

We are probably better off at this point with separate IQ and DR resolutions since we would have a better chance to get priority for an IQ than for a DR resolution. In addition, some of the countries we have consulted have expressed reservations on building the two-thirds requirement directly into the DR resolution.

We suggest a simply worded IQ along the following lines:

The General Assembly,

Decides that any proposal in the General Assembly which would result in depriving the Republic of China of representation in the UN is an Important Question under Article 18 of the Charter.²

It is best that the resolution not make any explicit mention of Article 6, which deals with the expulsion of members from the UN. Reference to Article 6 would probably scare off potential supporters who would not want to associate themselves with the view that this is now (after 21 years) a membership issue rather than a representation issue. The argument that the ROC is a member (rather than that China is a member) is dubious on legal grounds and in any case poses dangers to a DR resolution: if the ROC is a member in its own right, then the PRC must be admitted through Security Council procedures as a new member and this cannot be done through a DR resolution. In addition, the Article 6 reference would presumably mean that the ROC could not be expelled unless the Security Council recommends its expulsion, a view to which few countries would wish to commit themselves at this time. We ourselves might not want to be in the position of having to decide whether or not to exercise a veto on this issue at some time in the future.

Similarly, it is best that the IQ resolution not explicitly be tied to Article 18(2) (expulsion of members), since this article necessarily involves Article 6. The UN Legal Adviser strongly believes the question is one of representation and not expulsion of a member, and doubtless would so state if asked from the floor. On the other hand, it is unnecessary to tie the IQ explicitly to Article 18(3) (Assembly action to create a new category of important questions in addition to those cited in 18(2)). In order to preserve maximum tactical maneuverability, it is best to leave it open to delegations to decide for themselves whether they are supporting the resolution as an affirmation of Article 18(2), or as a decision to add a new category as per Article 18(3).

We should keep in mind that we will be attacked on the grounds that even this revised IQ still is just a clever dodge to force the AR (once again) to secure a two-thirds majority and thus to prevent the Assembly from seating Peking, despite the fact that we are now talking about ousting the ROC. We will aid our cause if we can say forthrightly that we want Peking in the UN and believe they can be voted in by a simple majority—just as long as ROC ouster is not involved.

There should be no great problem in getting ROC sanction for this IQ, though they may press for explicit mention of Article 6 and/or Article 18(2), and it is easy enough to explain its meaning to press and public. Presumably the text would offend the PRC as little as any IQ would.

B. Dual Representation

To have the greatest vote-getting ability in the Assembly, and to do as little damage as possible to US bilateral relations with either Peking or Taipei, the Dual Representation resolution must meet certain criteria:

• —it must be couched in terms of representation and not membership to avoid as far as possible the legal objection that we are acting contrary to Article 4 (admission of new members) or Article 18(1) (each member of the Assembly shall have one vote) of the Charter;
• —it must avoid any position on the political, legal, or geographic claims of PRC or ROC;
• —unless our policy is changed, it should avoid the question of whether China is one entity of which Taiwan is a part—though if we wished it would be easy enough to add in a “one China” phrase, possibly by taking note of the contention of both PRC and ROC that China is one.

It may be best not to include any explicit legal justification for dual representation in the body of the resolution since whatever legal arguments we put up will be targets for rebuttal. For example, the UN Legal Adviser does not consider that “successor state theory,” in the Chirep context, means two states can succeed to the UN seat held previously by a single member state, unless one of the two is admitted as a new member through the procedures specified in Article 4. Our true justification is the argument from de facto reality, and it may be best to leave legal justification to oral and written statements rather than to insert them into the resolution itself.

Having examined the texts which the Japanese, Australians, and others have suggested, we have produced the following draft preamble to a dual representation resolution. The footnotes are intended to explain the function of each paragraph:

The General Assembly,

Having considered the item entitled “The Representation of China in the United Nations,”³

Noting that since the founding of the United Nations, fundamental changes have occurred in China,⁴

Having regard for the existing factual situation,⁵

Noting that the Republic of China has had continuous representation in the United Nations since 1945,⁶

[Believing that the People’s Republic of China should be represented in the United Nations and as one of the five permanent members of the Security Council]⁷

Recalling that Article 1, paragraph 4, of the Charter of the United Nations establishes the United Nations as a center for harmonizing the actions of nations,⁸

Taking into account the general sentiment of Member States, which found expression in the Final Declaration of the 25th Anniversary of the United Nations, that universality in the United Nations should be realized,⁹

Believing that an equitable resolution of this problem should be sought in the light of the above mentioned considerations [and without prejudice to the eventual settlement of the conflicting claims involved,]¹⁰

Drafting the operative paragraphs, particularly as they relate to Peking and Taipei, is a far more difficult task than drafting the preamble. In order to avoid a conflict with Article 4, we must not use any formulation which appears to admit either Peking or Taipei as a new member, and must carefully couch the resolution in terms of representation. If we talk of either the PRC or the ROC as a member, we plunge into a heavily overgrown legal thicket.

At the same time, it is probably best to avoid operative paragraphs phrased in terms of an invitation to the PRC to send representatives. Invitation formulas leave open the question of whether some affirmative act on Peking’s part is required and whether in the absence of an affirmative act the resolution has taken effect. Ideally, a DR resolution should resolve the matter without requiring any response from Peking so that we can say (next year, for example) that the issue has been decided and Peking’s right of representation fully confirmed, hence no need to reopen the matter at the 27th GA.

As far as vote-getting ability is concerned, we maximize our chances if we come in with a resolution that looks as much like a “cleaned-up” version of the Albanian Resolution as possible. We can present this as a clear-cut choice between an equitable solution fully in keeping with contemporary realities, and a bad either/or choice. We recommend that the operative paragraphs read:

“Hereby affirms the right of representation of the People’s Republic of China;

“Affirms that the Republic of China continues to be entitled to the right of representation;¹¹

“Recommends, in accordance with Article 10 and General Assembly Resolution 396(V) (14 December 1950), that the Security Council and other organs of the United Nations and the specialized agencies take into account the provisions of this resolution in deciding the question of Chinese Representation in those organs and agencies.”

For ease in reading, the recommended IQ and DR texts are attached.12¹²

1. Source: National Archives, RG 59, Central Files 1970–73, UN 6 CHICOM. Secret; Exdis. Drafted by Feldman and cleared by Assistant Secretary Green, Winthrop Brown, Aldrich, Ernest L. Kerley, Shoesmith, Jenkins, and Armitage.
2. The phrase “which would result in depriving” could be replaced by the phrase “to deprive.” The former is the broader formulation, including without question both the explicit and the implicit. The latter could be read as being narrower in scope. It is important that this paragraph be phrased in terms of representation and not of membership. [Footnote in the source text.]
3. If the General Committee declines to assign this more neutral sounding title, we would have to use “The Restoration of the Lawful Rights of the People’s Republic of China.” [Footnote in the source text.]
4. This is the argument from reality essentially, but it can be understood as something of a legal justification via dual succession. Note it has a one-China flavor, but not blatantly so. The paragraph can be omitted if it looks as though it would cost us votes. [Footnote in the source text.]
5. The argument from reality again. [Footnote in the source text.]
6. Best to avoid phrasing it as “has been a member” since that would open the Article 4 Pandora’s box. [Footnote in the source text.]
7. Once again, representation rather than membership. The thought re the Security Council can be expressed either in a preambular or operative para, but in view of the fact that the resolution probably had best not purport to decide the issue, then it is better as a preambular paragraph. If an operative paragraph, it should recommend rather than declare. Note: We would not show this paragraph to the ROC at this point. It should be omitted from any draft resolution passed to them now. [Footnote and brackets in the source text.]
8. Not necessary, but psychologically valid as a means of countering adverse legal arguments via an appeal to reason and duty (don’t worry about messy legal questions; solve the problem). [Footnote in the source text.]
9. The universality argument is no longer that universality means bringing the PRC in; now it means keeping the ROC in. A useful tool. [Footnote in the source text.]
10. Combines an appeal to reason with the idea that the GA, if it buys this resolution, damages neither the claims of the parties nor the prospect for some other settlement which they themselves work out. We include the last phrase in brackets because it may be that some countries would prefer not to make even so tentative a reference to the competing claims. We will have to check whether the reference gains or loses us votes. [Footnote and brackets in the source text.]
11. Some states may object to referring to an ROC “right” of representation, but the ROC would surely object if the linguistic treatment given them were less than that given Peking. [Footnote in the source text.]
12. Attached but not printed.