391. Memorandum From the Assistant Legal Adviser for East Asian and Pacific Affairs (Starr) to the Assistant Secretary of State (Green) and the Deputy Assistant Secretary of State (Brown) for East Asian and Pacific Affairs1

SUBJECT

  • Chirep—Important Question

In our Chirep guidance to USUN (State 139831)2 we did not indicate whether the USG considers that a proposal to deprive the ROC of representation in the UN would constitute an important question under paragraphs 2 or 3 of Article 18 of the Charter. The ROC may press for an explicit mention in any IQ resolution of Article 6 and/or Article 18(2), and in any case they may seek USG support for the position that action to expel the ROC would come under paragraph 2 rather than paragraph 3 of Article 18. The question of the USG position on Article 18 may also be posed by other delegations in New York as we get into the Chirep issue.

Our Chirep guidance to USUN states only that:

“We believe it is best that the IQ Resolution not explicitly be tied to Article 18(2) (expulsion or suspension of rights of members), since this Article necessarily involves Article 5 or 6 (of the UN Charter). 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).

“… 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.”

Relying simply on Article 18, without indicating whether we believe paragraph 2 or paragraph 3 is involved, may create a false impression that our IQ position is based on paragraph 2. A speech by Ambassador Phillips on the Chirep issue in last year’s UNGA debate (Tab A)3 contained references to the Charter provisions on expulsion of a member and [Page 773]led to a critical article in the New York Times by Harvard Professor Jerome Cohen (Tab B).4 Cohen read the Phillips speech as contending that a simple majority decision of the UNGA to seat the PRC and expel the ROC would constitute a Charter violation.

Cohen argued that such an interpretation, if accepted, would deprive the UN of flexibility for achieving a political solution. He also noted that, should the Assembly reject that interpretation and decide to settle the representation question by simple majority vote, the USG position would brand such action as illegitimate.

We had considered sending a clarifying letter to the Times, in order to avoid the buildup of expectations that the USG would consider as illegal adoption of last year’s Albanian resolution by less than a two-thirds majority vote and without a Security Council recommendation. However, it was agreed that further journalistic speculation would be more harmful than beneficial, and a letter was sent instead to Professor Cohen making it clear that the USG did not intend the implications suggested by Cohen in his article. In the letter we made it clear that the reference in the Phillips speech to Articles 6 and 18(2) of the Charter did not involve an assertion that these provisions would apply as a matter of law. Rather, the references were intended mainly for purposes of analogy—to buttress our position that the UNGA should consider the Chirep issue an important question, and not to argue that it necessarily must do so under the Charter. (That letter has been reproduced in the April, 1971 issue of the American Journal of International Law) (Tab C).5

I believe we would find it extremely difficult to make a persuasive legal case for the proposition that expulsion of the ROC would involve Articles 6 and 18(2) of the Charter, particularly in view of our position that seating the PRC involves representation, and not membership. Moreover, there are sound reasons of policy for avoiding a situation in which the USG would have to brand as illegal UNGA action to deprive the ROC of representation by less than a two-thirds vote and without a Security Council recommendation. Such a position would deny us necessary flexibility in dealing with the essentially political issues involved.

Accordingly, if pressed and if we believe it necessary to take a more forthcoming position, we should concede that the UNGA has discretion to decide whether or not depriving the ROC of representation should be considered an important question. In other words, paragraph 3 and not paragraph 2 of Article 18 would be viewed as controlling.

  1. Source: National Archives, RG 59, EA/ROC Files: Lot 75 D 76, Exdis, 1971. Confidential; Exdis. Drafted by Robert I. Starr.
  2. Document 388.
  3. Attached but not printed. Phillips’ speech is printed in Department of State Bulletin, December 14, 1970, pp. 733–735.
  4. Attached but not printed; “China: A New U.S. Move,” The New York Times, November 18, 1970, p. 47.
  5. Attached but not printed; The American Journal of International Law, Vol. 65, No. 2 (April 1971), pp. 396–397.