Foreign Relations of the United States, 1947, General; The United Nations, Volume I

IO Files:US/A/C.1/161

United States Delegation Working Paper

[ New York ,] September 24, 1947.

Possible Objections to the Establishment of an Interim General Assembly Committee ¹

1. Objection

The establishment of a new subsidiary organ of the General Assembly sitting continuously with jurisdiction over certain matters relating to international peace and security is contrary to the system of separation of powers between the Security Council and the General Assembly contemplated by the Charter. The General Assembly under the Charter was given jurisdiction over matters affecting international peace and security on the assumption that it would be in session only once a year except for special sessions (Article 20). The proposal to establish such a committee would, in effect, extend the jurisdiction of the General Assembly not by altering its scope but by altering the normal period when it may exercise its jurisdiction. The establishment of such committee would constitute an invasion of the Security Council jurisdiction.

Answer

(a) Article 28 provided that the Security Council shall be so organized as to function continuously. Article 20 states that the General Assembly shall meet in regular annual sessions and in such special sessions as occasion may require. There is nothing in the Charter that would prevent the General Assembly from remaining in session for the entire year. While the Security Council must sit continuously, it is left to the General Assembly to regulate the duration of its sessions according to its volume of business, the General Assembly being the master of its own procedure (Article 21). Consequently, there is nothing in the Charter which would prevent the General Assembly from sitting continuously or from creating a standing subsidiary Committee under Article 22.

(b) The establishment of the Committee cannot be considered as constituting an invasion of the Security Council jurisdiction. In the field of pacific settlement the Security Council deals with disputes or situations the continuance of which is likely to endanger international peace and security. Under Article 35 a State is given a choice of bringing this type of controversy either before the Security Council or before the General Assembly. According to Article 35(3), the proceedings of the General Assembly in respect of such matters are “subject to the provisions of Articles 11 and 12.”² Under Article 11(2) the General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations or by the Security Council or by a State which is not a Member of the United Nations in accordance with Article 35(2) and except as provided in Article 12 may make recommendations in regard to any such questions. The Committee, according to its terms of reference, would be able to consider disputes or situations likely to endanger the maintenance of international peace and security only within the limits of the General Assembly jurisdiction in this field and under the following conditions and with the following limitations:

1. If such dispute or situation is brought before the Committee by the Security Council itself in accordance with Article 11(2). Even in this case the continued jurisdiction of the Committee as a subsidiary Committee of the General Assembly would be subject to the provisions of Article 12. Moreover, in any event the Committee would be able to make recommendations only to the General Assembly. If the Security Council is in any way apprehensive of its jurisdiction, it would, of course, be free not to bring its controversy before the Committee.

2. If such dispute or situation is specifically referred to it by the General Assembly itself. In this case again the Committee would be able to make recommendations only to the General Assembly.

Outside of these two instances, the Committee can only deal with situations brought under Article 14 as likely to impair the general welfare or friendly relations among nations which are within the typical jurisdiction of the General Assembly. It can hardly be said that this might be construed as a usurpation of the Security Council powers.

The field of “action” under Chapter VII (“action with respect to threats to the peace, breaches of the peace, and acts of aggression”) is within the exclusive jurisdiction of the Security Council. The Charter does not mention the Assembly as an organ in this field. Article 11 provides that where “action is necessary with respect to questions relating to the maintenance of international peace and security” such question shall be referred by the General Assembly to the Security Council. Consequently, the Committee could not exercise any functions in this field.

(c) Only in one instance under the terms of the United States draft resolution have the Members direct access to the Committee. They may bring before the Committee disputes or situations regardless of origin under Article 14 and the Committee may consider and recommend measures for their peaceful adjustment. The Charter did not contemplate that the Security Council would deal with this type of controversy unless it was regarded as a dispute within the meaning of Article 33. Moreover, the Committee may direct its recommendations only to the General Assembly.

(d) Article 11(1) contemplates that the General Assembly will consider general principles of cooperation in the maintenance of international peace and security. Article 13(1) a provides that the General Assembly shall initiate studies and makes recommendations for the purpose of promoting international cooperation in the political field. Obviously these spheres of activities of the General Assembly require thorough study and preparation before the General Assembly can make adequate recommendations. One of the most important functions of the proposed committee would be to operate as a studying group and collect the necessary materials for Assembly action. This function, too, in no way encroaches upon the Security Council powers since it lies outside of the jurisdiction of the Security Council.

2. Objection

The establishment of a standing committee of the General Assembly is a device to circumvent the operation of the veto in the Security Council.

Answer (See also the answer to the fourth objection below.)

As pointed out above, the General Assembly has jurisdiction hi certain questions relating to the maintenance of international peace and security. The purpose of this Committee is to make more effective the carrying out of some of the more important responsibilities of the General Assembly within the Charter. Without such Committee the General Assembly is unable to deal adequately with the important responsibilities which devolve upon it according to Articles 11, 13, 14 and 35. This does not affect the voting procedures in the Security Council. The primary responsibility of the Security Council for the maintenance of international peace and security is safeguarded by the provisions of Article 12. The Security Council remains the only organ authorized to provide for “action” within the meaning of the last sentence of Article 11(2). None of the powers envisaged for the committee encroaches upon this exclusive authority of the Security Council.

3. Objection

The constitution of such Committee by the General, Assembly amounts to an illegal delegation of powers on the part of the General Assembly to a subsidiary organ.

Answer

The Charter accepts the principle of delegation of powers in that it provides in Article 22 that the General Assembly may constitute subsidiary organs. A number of such subsidiary organs have already been constituted, such as the Atomic Energy Commission, the Committee on the Progressive Development of International Law and its Codification, the Headquarters Advisory Committee and others. All these subsidiary organs have functioned regardless of whether the General Assembly was in session. It is essential that an organ like the General Assembly have unquestioned authority to constitute subsidiary committees to assist it in the performance of its duties. The proposed Committee would not possess powers excessive to a subsidiary committee for the following reasons:

(a) Every Member of the United Nations will be represented on the Committee.

(b) The most important and effective remedy given to the General Assembly is its power to make recommendations to its members and to the parties to a controversy. The Committee would not possess such power, which is reserved for the Assembly itself. Nor would the Committee have power to make recommendations to the Security Council or any other United Nations organ, which power too is reserved to the General Assembly.

(c) The principal activities of the Committee under Article 14 and Article 11(1) and 13(1) a would be to study, prepare, investigate and follow up matters for General Assembly action and to make recommendations to the General Assembly only. In this sphere of activities the question of delegation does not arise since the Committee’s work is of ancillary and ministerial character, designed to serve as a basis for recommendations by the General Assembly itself. In order to be able to ascertain facts the committee is to be given authority to appoint commissions of inquiry. It might be argued that the power to appoint such commissions is too important to be passed on by a blanket authorization to a subsidiary committee such as the proposed Committee, and that at the most the authorization should be confined to specific cases. However, obviously the Committee would not be in a position to make intelligent recommendations without being able to obtain the necessary facts. Thus, if it should be denied the authority to appoint commissions of inquiry whenever this becomes necessary in the course of its proceedings, it would either have to wait until the next regular session of the General Assembly and at that time ask the General Assembly for a specific authority to appoint such commission; or it would have to recommend convocation of a special session of the General Assembly for the purpose of obtaining such specific authority. Either of the two alternatives is impracticable and would defeat the very purpose of the establishment of the Committee. Moreover, all that the Committee could do under the United States draft resolution would be to appoint a commission of inquiry and recommend to the states concerned that they cooperate with the commission and facilitate its functioning. Such commission of inquiry, for instance, would not be entitled to enter the territory of any state in order to conduct an on-the-spot investigation without the consent by the government of such state. This is due to the fact that the very basis of the powers of the General Assembly and of any of its subsidiary organs is the power to recommend only. To say this, however, is not to depreciate the strength of the General Assembly’s opinion of what should be done; rather it is to say that as a matter of law members are free to choose to respond, or not.

4. Objection

Even if the language of the Charter does not prohibit the establishment of a standing committee, such establishment would be a doubtful constitutional practice. It would amount to a major and drastic change in the structure of the organs of the United Nations, the need for which has not been demonstrated by its 20 months’ experience.

Answer

The experiences gathered in the many months of the both parts of the First Session, as well as the experience from calling of the Special Session, are sufficient to demonstrate a pressing need for more adequate preparation of the sessions of the General Assembly which would be the principal function of the proposed Committee. Furthermore, the experience with the Palestine Special Session has clearly brought out the fact that there exists a reluctance on the part of the members to assemble in a special session. For this and for the other reasons indicated above, the special sessions could not perform the functions contemplated for the standing committee. Finally one of the important functions of the proposed committee is to consider on the basis of the experience of this year whether a permanent standing committee to perform these other functions should be established.

5. Objection

It will be argued that the Members, in order to obtain access to a vetoless forum, will label their controversies in the language of Article 14 rather than in accordance with their true character as controversies endangering international peace and security. In this way, they will appear before the Committee rather than before the Security Council.

Answer

Even if there should develop such tendency, any Member of the Security Council, and for that matter any Member of the United Nations and the Secretary-General could at any time draw the attention of the Security Council to the controversy which in his view endangers peace and should be dealt with by the Security Council. If the Security Council accepts this view and puts the matter on the agenda, the jurisdiction of the Committee becomes subject to the provisions of Article 12 for the period during which the Security Council is dealing with it. Furthermore, as indicated above, the Security Council remains the only organ to provide for “action” in accordance with the last sentence of Article 11(2).

1. It should be noted that this paper proposes to deal with objections of constitutional nature only. [Footnote in the source text.]
2. Article 11(2) provides that when “action” is necessary the General Assembly shall refer the question to the Security Council either before or after discussion, and Article 12 provides that where the Security Council is already exercising its functions in respect of such matter the General Assembly shall not make any recommendations unless the Security Council so requests. [Footnote in the source text.]