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

IO Files: US/A/C.1/222

Minutes of a Meeting With Members of the United Kingdom Delegation, New York, September 30, 1947, 11 p.m.

New York, September 30, 1947, 11 p.m.

confidential

Present:	Sir Hartley Shawcross of the United Kingdom Delegation
	Mr. H. M. G. Jebb of the United Kingdom Delegation
	Mr. W. E. Beckett of the United Kingdom Delegation
	Mr. P. S. Falla of the United Kingdom Delegation
	Mr. C. D. W. O’Neill of the United Kingdom Delegation
	Mr. John Foster Dulles of the United States Delegation
	Mr. Elwood N. Thompson of the United States Delegation
	Mr. David W. Wainhouse of the United States Delegation
	Mr. Harley A. Notter of the United States Delegation
	Mr. Hayden Raynor of the United States Delegation

General Assembly Interim Committee

At the beginning of the meeting, the British handed to us the attached memorandum relating to legal questions on our proposal. The memorandum was not discussed as such, but most of the points contained therein were made during a detailed review which followed [discussion?] of our resolution. The memorandum is attached as Annex 1.

General Discussion

Sir Hartley Shawcross then opened a preliminary general discussion by reaffirming that the United Kingdom was committed to support our proposal in principle, and stated that they had been especially impressed by the public opinion arguments used by Mr. Dulles in our previous meeting. He said the British had desired this meeting in order to review the proposal in detail in order to put it in a form most likely to be adopted, a form which would meet the objections most likely to be raised, and which would secure favorable votes from states which might otherwise be in the doubtful column. He expressed the view that the objections would generally fall into two categories—(a) general constitutional doubts, and (b) a feeling that this would be a duplication of the Security Council.

Article 35

Sir Hartley Shawcross then raised the question as to whether the omission of reference to Article 35 in our draft resolution was intentional. Mr. Dulles replied that while we had not intended to preclude the spirit of this Article, we had felt its specific inclusion was unnecessary, that we had eliminated it in order to stress the articles in which the powers of the Assembly with respect to peace and security matters had their origin, and that Article 35 did not fall in that category.

General Review of our Proposal

Mr. Dulles said he thought that by reading the outline of the functions of the committee as contained in his present draft of his opening statement, this and other matters might become clearer. He said that in his statement he made the following four points in this connection:

(1) Preparatory functions—Studying and reporting to the General Assembly on Article 14 items on its agenda.

(2) Follow-through functions (such as Greece, Palestine and Korea).

(3) General principles pertaining to peace and security—Article 11—cooperation in the political field (Article 13). Mr. Dulles mentioned that under this general heading, questions such as indirect aggression and the Soviet concept of the press containing matters hostile to other states could be included.

(4) A study and recommendations as to whether a committee of this type should be made permanent.¹

In this general discussion, Mr. Dulles asked the British what they thought of an argument for general use in our presentation running along this line: All of the other fields covered by the General Assembly, such as economic and social, trusteeship, budgetary and financial are prepared for in advance by sub-organizations such as the Economic and Social Council, the Trusteeship Council, the various commissions of ECOSOC, and the Advisory Committee on the Budget, except political problems falling under Committee 1. As a result, when the Assembly meets, Committee 1 is overloaded and the General Assembly itself neglects other matters in order to take care of the heavy load of Committee 1. The British thought this was a fair and valid argument.

There was general agreement on both sides to our statement in answer to their inquiry that even if the Security Council worked perfectly, this committee would still be useful.

The British agree with our thought that the committee should be a committee of the whole.

During the discussion, and in answer to British questions, Mr. Dulles stated that we visualized the preparatory functions of the committee to be as broad as the General Assembly functions in this field, and thus that they would cover disputes as well as situations.

Also in answer to questions, Mr. Dulles stated our view to be that matters primarily falling under Security Council jurisdiction should not be handled by the committee unless the Security Council has failed to act and such matters have been removed from the agenda of the Security Council. He added, however, that we would be careful not to preclude the right of the committee to discuss such matters.

French Attitude

Mr. Jebb reported that the French liked the follow-through function of the committee and the idea of assigning to the committee matters which the Security Council fails to settle. Mr. Jebb had not discussed with the French our idea on preparatory functions and he was not prepared to speculate on what the French reaction to our ideas on this might be. Mr. Jebb added that the French felt the committee should not be authorized to make investigations in cases where the Security Council has already made investigations. Of more importance, Mr. Jebb reported that the French apparently rather firmly feel that the committee should be precluded from dealing with Security Council matters until after such matters have been removed from the agenda of the Security Council. Messrs. Jebb and Shawcross, however, seem to feel that the French might be willing to accept some phraseology along this line: “Without prejudice to the powers of the General Assembly under Article 10 the Interim Committee shall not handle matters which are before the Security Council.”

The Rules of the Committee

There was some discussion on this question but no definitive conclusion reached. There was a consensus, however, that certain key rules such as the rule to the effect that important decisions such as establishing a commission of inquiry should take a two-thirds vote should be set forth in the resolution itself.

The Resolution Itself

• Paragraph 2A of the Resolution—There was considerable discussion of the wording of this paragraph, and the general consensus was that the terms of reference should inclulde Article 11(2), 14, 35 and possibly the peace and security part of Article 10, although this was not as clear as the feeling on the other articles. There was agreement to consider wording along this line: “To consider in its discretion such questions submitted to the General Assembly within the purview of Articles 11(2), 14, 35 (and possibly the peace and security part of 10), and to report thereon with its recommendations to the General Assembly.” The British made special points that the wording should not preclude member states being able to bring in matters under 11(2) and that this right should not be limited to reference from the Security Council as our draft is now written.
• Paragraph 2B seems to be satisfactory.
• Paragraph 2C—The British raised the question as to whether the Interim Committee itself could call a special session, and we admitted that it could not and hence our wording as its calling for recommendations to the Secretary-General who would then have to poll the members in the usual way.
• Paragraph 2D—The British raised the legal question on the right of the Assembly to send out an investigating committee and referred again to what the word action in Article 11 means. They suggested the possibility of obtaining an advisory opinion of the court on this matter in the form of a question along this line: “Is the creation of an investigating committee action under Article 11(2) of the Charter and therefore precluded?” We attempted to persuade the British that this matter was abundantly clear, and that an advisory opinion was unnecessary. There was a general feeling that this question of interpretation was of more immediate import in our Greek Resolution than in this resolution (I am writing a separate memorandum on this point.)^*
• Paragraph 2E—The British feel this paragraph is good. They think it is especially desirable as a hedge in the event the Slav group do not participate in the work of the committee.
• Paragraph 2F—The British raised the question of the committee being able to perform wider functions than those of peace and security. They referred particularly (Mr. Jebb) to an idea now being discussed in Committee 5 that there should be some body established to set priorities on United Nations activities in order to keep the budget within reasonable bounds. They felt this committee would be especially desirable in this connection because its decisions would have behind them the weight of the representation of the full membership of the Assembly. We argued that the terms of reference of this committee should be confined to peace and security matters under the frame of reference set forth in the preamble. The British, I believe, are inclined to agree, but a little reluctantly. They urged that we support having some group established on the priority question just mentioned.
• Paragraph 5—The British pointed out an error in that as the paragraph is now drafted it seemed to imply that the whole committee might indulge in traveling.
• Paragraph 3—Mr. Jebb made inquiry with respect to the meaning of our use of the words “take cognizance”. It was agreed that this paragraph would need amendment in the light of whatever formulation is decided upon to meet the French position with respect to the Security Council.

Annex 1

United Kingdom Memorandum on American Proposal for the Establishment of an Interim Committee

The American proposal has now been formulated, as in the attached paper A/C.1/196 of the 26th September.²

2. It is not altogether clear from the draft Resolution what are the functions exactly which it is intended to confer on the Interim Committee. In paragraph 2(a) and (b) it is to be noted that the Interim Committee does not appear to be entrusted with investigating disputes or situations brought to the attention of the General Assembly by a Member or by a non-Member State under Article 35, paragraph 1 and paragraph 2, Further it does not appear to be entrusted with the consideration of questions relating to the maintenance of international peace and security brought before the General Assembly by a Member of the United Nations under Article 11(2). These omissions cannot be accidental because Article 11(2) is referred to in connection with a question referred by the Security Council. One might at first sight be tempted to suppose that it was the idea of the United States to exclude from the consideration of the Interim Committee disputes and situations, arising out of the differences between individual States, except when they had been sent to the General Assembly by the Security Council, and, apart from this, to confine the Committee to the consideration of the general principles of cooperation in the maintenance of peace and security (Article 11(1)). As, however, cases under Article 14 are certainly brought within the purview of the Interim Committee by the United States resolution, and as presumably a dispute between two States may be brought under Article 14, it is rather difficult to see exactly what the intention is. Moreover, from the practical point of view it is hardly likely that the Security Council will formally refer matters to the General Assembly since that would require the concurring vote of all the 5 Great Powers. There is no mention in the United States proposals of the specific class of cases where the Security Council has been unable to reach a decision (either because of the veto or otherwise) but has not taken the step of referring the matter to the General Assembly.

3. Paragraph 2(d) of the United States Resolution calls for some special consideration in order to form an opinion whether it is or is not within the power of the General Assembly to conduct investigations and appoint Commissions of Enquiry when it is dealing with situations or disputes relating to the maintenance of international peace (Article 11(2)) or likely to impair the general welfare or friendly relations amongst nations (Article 14, or under Article 35(1) and (2)). This question involves the interpretation of the phrase “any such question on which action is necessary” at the end of Article 11(2). It should be noted, however, that there is no similar qualification to Article 14. The view of the United States Delegation is thought to be that the word “action” at the end of Article 11(2) refers to enforcement action under Chapter VII of the Charter, and if this is correct it would seem that the General Assembly, acting under Article 11(2) has much the same power as the Security Council itself has when acting under Chapter VI. There seem strong arguments in favour of this view, namely (1) in Article 11 (2) the word “action” is contrasted with recommendation to the State or States concerned or to the Security Council or both; (2) In Article 35(1) and (2) there is a choice of referring disputes and situations either to the Security Council or to the General Assembly. Under Chapter VI the Security Council has power to make recommendations for appropriate procedure and methods of adjustment (Article 36) or to recommend terms of settlement (Article 37). The General Assembly may (Article 11(2)) make recommendations to the State or States concerned, and under Article 14 may recommend measures for the peaceful adjustment of any situation. It seems difficult, therefore, to suppose that the powers of the General Assembly were supposed to be less than those of the Security Council under Chapter VI.

4. The General Assembly, like the Security Council, must endeavour to settle disputes and adjust situations in accordance with the principles of international law and justice. And no Body can fulfil this function unless it is in a position to inform itself of the true facts, and for this purpose a Commission of Enquiry may be necessary. It is, of course, true that the General Assembly did appoint a Commission of Enquiry for the Palestine question; but the Palestine question was referred to the General Assembly under Article 10 of the Charter, and was not therefore necessarily a matter involving the maintenance of international peace and security. There would seem, however, to be very strong arguments in favour of the view that the General Assembly has this power as a preparatory measure to making a recommendation, and that paragraph 2(d) of the United States Resolution is consequently intra vires. It has not been possible to trace in the minutes of the San Francisco Conference any definite indication of the meaning attached to the word “action” at the end of Article 11(2); a United Kingdom draft presented to the relevant Sub-Committee, however, at one stage contained after “action” the parenthesis “(by the Security Council)”. A further argument may be deduced from the 4-Power memorandum circulated at San Francisco, although it must be emphasized that this memorandum relates only to the Security Council. But in relation to the Security Council it was argued that the sending of Commissions of Enquiry might give rise to a “chain of action” leading ultimately to the necessity of the use of force, and therefore a decision to appoint a Commission of Enquiry was a matter in regard to which the veto should apply. It may be said that since there is no veto in the Assembly, the Assembly should not be able to appoint Commissions of Enquiry in relation to matters referring to the maintenance of international peace and security.

5. If doubts seem to be felt on part 2(d) of the United States Resolution in particular, and if these doubts might endanger the passing of the Resolution by the two-thirds majority, it might be advisable to propose that an advisory opinion of the International Court should be obtained on this particular provision, and that the portion of this provision should be subject to the opinion of the Court being to the effect that it was intra vires the powers of the Assembly.

6. The second method of approach is given in the attached note by the Legal Adviser to the Foreign Office.³ In a word the suggestion is that the Assembly should, by one means or another, prolong its own session so as virtually to make it continuous, and that during the operation of this session only one Committee will function and there will be no plenary meetings unless the President of the Assembly, at the request of this particular Committee, so decides. Moreover, the powers of the Committee so established would not be laid down in detail (as in the Marshall Plan) but would simply be indicated as all those which accrue in any case to the General Assembly.

7. The great advantage of this scheme would be that the powers of the new body created would not be specifically defined, and it would be left quite unclear, for instance, whether it had or had not the power to send out Commissions of Enquiry. If, therefore, during the first year of its establishment such a suggestion were made, and if we and other States came to the conclusion that it was inadvisable, it would be open to us, should we so desire, to argue against the despatch of any Commission, and even in the last resort not to take part in it on the ground that its establishment was ultra vires.

8. The disadvantage from a technical point of view to this proposal seems to be that whereas under the Charter (Article 28(1)) the Security Council is to function continuously, the General Assembly (Article 20) “shall meet in regular annual sessions and in such special sessions as occasion may require”. What is clearly contemplated by this last Article, therefore, is a session of a few weeks, or at the moment [most?] a few months, once a year, and by exception certain other special sessions. A proposal, therefore, to put the General Assembly into what virtually would be “continuous session” might well be held, and will be held if what M. Sobolev says is right, by the Slavs to violate Article 20 of the Charter.

9. Yet a third and rather different method of approach would be that which was understood as being put forward by Dr. Evatt. Unless we are wrong, this would mean establishing a Committee by one or other of the means referred to above but limiting its powers to the discussion of matters previously referred to the Security Council on which the Security Council, either by the exercise of the veto or for any other reason, had been unable to arrive at a conclusion. In practice we think the result which Dr. Evatt desires would probably be realised even if there was no such limitation on the powers of the Interim Committee, for the reason that if there are two parties to the dispute, if one party brings the matter before the Assembly the other Party is very likely to put it down on the Agenda of the Security Council, and if so, as the result of Article 12(1) the Interim Committee would have to desist from dealing with the matter until the Security Council had finished. The difficulty, however, of putting in any express limitation is that it appears to be contrary to the spirit of the Charter, which most clearly in Article 35 (1) and (2) gives Members the choice of taking their disputes either to the General Assembly or to the Security Council, and the primary responsibility of the Security Council for security does not mean first in point of time. The primary responsibility of the Security Council rests principally on the fact that the Security Council alone has the enforcement powers under Chapter VII, and secondly in the fact that if both organs are seized of the same dispute the General Assembly gives way until the Security Council is finished.

1. Mr. Dulles’ opening statement to the First Committee on October 14 is found in United Nations, Official Records of the General Assembly, Second Session, First Committee, pp. 129 ff. (hereafter cited as GA (II), First Committee).
2. See US/A/C.1/223. [Footnote in the source text. Mr. Raynor was the drafter of these minutes.]
2. This is the United Nations text of United States Doc. US/A/C.1/165, September 26, p. 194.
3. Not attached to this copy.