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The Powers of Investigation of the United Nations Security Council

Published online by Cambridge University Press:  28 March 2017

Ernest L. Kerley
Ernest L. Kerley*
Affiliation:
Office of the Legal Adviser, Department of State
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Extract

When the Security Council of the United Nations investigates an event or situation at the scene, it establishes a credible factual basis for its consideration of the situation, and the situation itself may be stabilized by the presence of the investigators. These important benefits may involve concomitant difficulties for the state in whose territory the investigation occurs, since the presence of international investigators may be conceived of as a limitation of its sovereignty. Objections may also arise from states seeking to obscure the realities of the situation being investigated, or from states which resist as a matter of principle any functions of international organizations which appear to derogate from state sovereignty.

Type
Research Article
Information
American Journal of International Law , Volume 55 , Issue 4 , October 1961 , pp. 892 - 918
Copyright
Copyright © American Society of International Law 1961

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References

* The opinions expressed in this article should not be attributed to the Department of State.

1 The Greek question in the Security Council arose out of a complaint by the Greek Government on Dec. 3, 1946 (U.N. Doc. S/203), which stated that Albania, Bulgaria and Yugoslavia were supporting the guerrilla forces fighting against the Greek Army in Greece. Although Albania and Bulgaria were not Members of the United Nations, they, along with Greece and Yugoslavia, were allowed to participate in the consideration of this question by the Council after they had assumed the obligation of pacific settlement under Art. 32. U.N. Security Council, 1st Year, Official Records, 84th Meeting, p. 613 (1946). On Dec. 19, 1946, the Security Council established under Art. 34 a Commission of Investigation to investigate the situation in Greece. Ibid., 87th Meeting, p. 701 (1946). The Commission found that “Yugoslavia, and to a lesser extent, Albania and Bulgaria” had “supported the guerrilla warfare in Greece.” Ibid., 5th Year, Spec. Siipp. No. 2, at p. 106 (1950). When the Commission departed from Greece on April 30, 1947, it was instructed by a resolution of the Security Council to leave a Subsidiary Group to continue the investigation. Ibid., 2d Year, 131st Meeting, p. 800 (1947). At its 188th Meeting on Oct. 21, 1947, Security Council resolutions which would have found the situation in Greece to be a threat to peace were vetoed by the Soviet Union. Ibid., 188th Meeting, pp. 2098-2099 (1947). The matter was then removed from the agenda of the Security Council to permit the question to be dealt with by the General Assembly. Ibid., 202d Meeting, p. 2405 (1947).

2 Statement of the representative of France, ibid., 168th Meeting, pp. 1552-1553 (1947); see also the comments of the representative of Belgium, ibid., 134th Meeting, p. 843 (1947).

3 Sec. A, par. 1, Ch. VIII, Dumbarton Oaks Proposals, Doe. No. 1, C/l, 3 U.N.C.I.O. Docs. 13 (1945).

4 Doc. No. 274, III/2/6, 12 ibid. 16.

5 Doc. No. 958, III/2/B/1, ibid. 259.

6 Emphasis added; Doc. No. 992, III/2/27, ibid. 107, 115.

7 Emphasis added; ibid. 110, 118.

8 Doc. No. WD 434, CO/198, 17 ibid. 208.

9 The representative of Bulgaria, U.N. Security Council, 2d Year, Official Records, 156th Meeting, p. 1280 (1947); see also 159th Meeting, p. 1371; 166th Meeting, p. 1521.

10 The representative of Australia, ibid., 167th Meeting, pp. 1544-1545.

11 The representative of the Soviet Union, ibid., p. 1536 ; see also pp. 1541-1542, and statements by other delegates: Bulgaria, ibid., 156th Meeting, pp. 1280-1281; Yugoslavia, ibid., 163d Meeting, pp. 1432-1433; Albania, ibid., 169th Meeting, p. 1599.

12 U. S. Dept. of State Pub. No. 2349, Charter of the United Nations, Report to the President of the Results of the San Francisco Conference 86 (1945). This report was cited by the Yugoslav delegate. U.N. Security Council, 2d Year, Official Records, 163d Meeting, p. 1432 (1947). See the effective rebuttal of the French delegate, ibid., p. 1432.

13 Report to the President, cited above, at 79.

14 Doc. No. 555, III/1/27, 11 U.N.C.I.O. Docs. 380-381 (1945).

15 Doc. No. 597, III/1/30, ibid. 393-394.

16 Ibid. 394-395.

17 Ibid. 395.

18 Kelsen, Law of the United Nations 390 (1951) ; on investigation by the Security Council generally, see ibid. 387-431, 437-444.

19 See below, pp. 903 ff.

20 Hearings before the Senate Committee on Foreign Relations, 79th Cong., 1st Sess., p. 271 (1945).

21 Department of External Affairs, Conference Series, 1945, No. 2, at p. 35 (1945).

22 Hasluck, Workshop of Security 124 (1948).

23 Kelsen, op. cit. note 18 above, at 391.

24 It is necessary to distinguish between fact-finding and the use of observers as a method of settlement under Art. 36(1). In the latter case U.N. personnel at the scene serve as a control on present events rather than as a source of information on past events. See below, at p. 915.

25 Doc. No. 2, C/14(r), 3 U.N.C.I.O. Docs. 584 (1945).

26 Doc. No. 502, III/3/22, 12 ibid. 349.

27 U.N. Security Council, 2d Year, Official Records, 156th Meeting, p. 1280 (1947); ibid., 159th Meeting, p. 1371 ; 160th Meeting, p. 1379 ; 166th Meeting, p. 1521.

28 The representative of the United States, U.N. Security Council, 2d Year, Official Records, 162d Meeting, p. 1423 (1947).

29 Ibid., 167th Meeting, pp. 1536-1539; see also the argument of the Soviet delegate, ibid., 160th Meeting, p. 1379.

30 This voting formula was first communicated to the participants in the San Francisco Conference in the document which invited them to attend. See Doe. No. 3, G/2, 1 U.N. G. I. O. Docs. 1-2 (1945).

31 Doc. No. 855, III/1/B/2(a), 11 ibid. 699-709.

32 Doc. No. 852, 111/1/37(1), 11 ibid. 711-714.

33 Art. 29: “The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.”

34 U.N. Doc. S/96 (1946) ; the Rules were prepared by the Preparatory Commission and submitted in Preparatory Commission, Report 26 (PC/20) (1945).

35 U.N. Security Council, 1st Tear, Official Records, 1st Meeting, p. 11 (1946).

36 Executive Committee of the Preparatory Commission, Report 42 (PO/EX/113/Rev. 1) (1945). This rule was in the first draft of the rules of procedure submitted to the Executive Committee by the Secretariat on Sept. 28, 1945. Doc. PC/EX/SC/17 at 6 (1945). It was also in a draft submitted by a member of the Canadian Delegation in his personal capacity on Oct. 2, 1945. Doc. PC/EX/SC/17/Rev. 1 at 13 (1945). At the 14th meeting of Committee 2 of the Executive Committee, following a discussion whether the rules submitted to the Security Council should be a complete set or merely those necessary to deal with the items on the provisional agenda of the first meeting of the Security Council, which was also being prepared by the Executive Committee, a number of rules, including the present Rule 39, were put to a vote. A majority of the Executive Committee, but not the requisite two-thirds, voted in favor of their inclusion. Doc. PC/EX/SC/32 at 5-6 (1945). The Committee, at the suggestion of the President, subsequently decided to list the unadopted rules in its report, without recommending their adoption by the Preparatory Commission. Doc. PC/EX/SC/36 at 3 (1945).

37 When the report of the Executive Committee was considered by the Preparatory Commission, this rule appeared, with several others, in a footnote indicating proposed rules which had received a simple majority, but less than the requisite two-thirds majority. During consideration of the provisional rules of procedure for the Security Council this rule was introduced by the representative of Syria. Doc. PC/SC/15 at 14 (1945). The representative of the United States expressed the view that this rule was not necessary to give the Security Council the necessary minimum of rules in order to establish itself. Both opponents and proponents of the proposed rule took the position that the Security Council had this right even in the absence of the rule; the opponents thus regarded the rule as unnecessary, while the proponents urged that the existence of such a rule would serve as “a direct invitation to people to submit to the Security Council information they believed to be of value to it.” Ibid. The proposed rule was adopted in Committee 2 of the Commission by twelve votes to five. Ibid, at 15. In introducing the report of Committee 2 to the Preparatory Commission in plenary session, the representative of Poland, as Chairman of the Committee, listed the new rule among the most important changes in the rules of procedure submitted by the Executive Committee. U.N. Preparatory Commission, Journal 104 (1945). The provisional rules of procedure of the Security Council were approved by the Commission without objection. Ibid, at 105.

38 “In the course of the operations from day to day of the various organs of the Organization, it is inevitable that each organ will interpret such parts of the Charter as are applicable to its particular functions. This process is inherent in the functioning of any body which operates under an instrument defining its functions and powers. It will be manifested in the function of such a body as the General Assembly, the Security Council, or the International Court of Justice.” Report of special committee on interpretation of the Charter appointed by Commission IV. Doc. 887, IV/2/39, 13 U.N.C.I.O. Docs. 668 (1945).

39 U.N. Security Council, 1st Year, Official Records, 34th Meeting, p. 167 (1946).

40 Ibid., 35th Meeting, pp. 182, 194, 199; 37th Meeting, pp. 230-231.

41 Ibid., 35th Meeting, p. 198.

42 Ibid., pp. 185-193.

43 Ibid., 37th Meeting, p. 216.

44 Ibid., 38th Meeting, p. 239.

45 Ibid., 39th Meeting, p. 245.

46 ibid., p. 243.

47 Ibid. pp. 245, 244.

48 Ibid., 2d Year, 111th Meeting, pp. 364-365 (1947).

49 Ibid., 114th Meeting, p. 425.

50 ibid.

51 Ibid., p. 426.

52 Ibid., p. 429.

53 Ibid., p. 430.

54 Ibid., p. 431.

55 U. N. Doc. S/391 (1947).

56 U. N. Security Council, 2d Tear, Official Records, 162d Meeting, pp. 1416-1417 (1947).

57 Ibid., p. 1422.

58 Ibid., pp. 1423-1424.

59 Ibid., p. 1424.

60 Ibid., p. 1426.

61 Ibid., 163d Meeting, p. 1428.

62 Ibid., pp. 1433-1434.

63 Ibid., 170th Meeting, pp. 1602-1603.

64 ibid., p. 1612.

65 Goodrich & Simons, The United Nations and the Maintenance of International Peace and Security 178 (1955).

66 U.N. Security Council, 3d Year, Official Records, 268th Meeting, pp. 107-108 (1948).

67 Ibid., 272d Meeting, pp. 203, 191.

68 Ibid., 281st Meeting, p. 2.

69 Ibid., 303d Meeting, pp. 5, 33-35.

70 Ibid., 305th Meeting, p. 33.

71 Ibid., 303d Meeting, pp. 28-29.

72 Ibid., p. 20.

73 Ibid., pp. 26-27.

74 The use of the “double veto” in the Czechoslovak case was not unique. It had been used by the Soviet delegate in a later stage of the Spanish case to prevent adoption of a resolution which would have kept the question on the list of matters of which the Council was seized without prejudice to the right of the General Assembly to act on the question. Ibid., 1st Year, 49th Meeting, pp. 413-422 (1946). During a later stage of the Greek case, a Soviet “double veto” prevented the adoption of a U. S. motion to refer the case to the General Assembly. Ibid., 2d Year, 202d Meeting, pp. 2399-2400 (1947). Shortly after the use of the “double veto” in the Czechoslovak case, its use was debated with regard to a resolution which forwarded the reports of the U.N. Atomic Energy Commission to the General Assembly. Ibid., 3d Year, 325th Meeting, pp. 13-20 (1948).

75 It has been suggested that the “double veto is a logical and, in a sense, inevitable consequence of the voting rule embodied in Article 27.” Gross, , “The Double Veto and the Four-Power Statement on Voting in the Security Council,” 67 Harvard Law Rev. 251, 277 (1953)CrossRefGoogle Scholar. The essence of Art. 27, and of the Four-Power Statement, was compromise, not logic. During the drafting of the Four-Power Statement the “united States, the United Kingdom, and China were in agreement that the determination of the preliminary question should be by a procedural vote. Rüssel & Muther, A History of the United Nations Charter 728 (1958). Russian intransigence on this matter was determinative, however. Ibid., pp. 728-730.

76 U.N. General Assembly, 2d Sess., Official Records, Resolutions 23 (A/519) (1948).

77 Ibid. 3d Sess., Supp. No. 10 at 10 (A/578) (1948).

78 Ibid., Ad Hoc Political Committee, Annexes 10-13 (A/792) (1948).

79 Ibid., 3d Sess., Pt. I, Ad Hoc Political Committee, p. 208 (1948).

80 Ibid., Pt. II, Plenary, p. 129 (1949).

81 U.N. Security Council, 5th Year, Official Records, 507th Meeting, p. 7 (1950).

82 U.N. Doc. S/4023 (1958).

83 U.N. Security Council, 13th Year, Official Records, 825th Meeting, p. 3 (1958).

84 U.N. Doc. S/4212 (1959).

85 U.N. Doc. 8/4216 (1959).

86 U.N. Security Council, 14th Year, Official Records, 848th Meeting, pp. 42-43 (1959).

87 Ibid., p. 78. See the subsequent notes of the Soviet Union and the United Kingdom regarding the validity of this action, U.N. Does. S/4222, S/4223 (1959).

88 The link between the Formosa and Laos cases has been disputed:

“The Formosa case, however, is not in point at all. In the first place, the ‘preliminary question’ followed the vote on the principal motion and, moreover, it is dubious whether it was really put in the correct manner. Secondly, the invitation to a state to participate in the discussion relating to the dispute is provided for in Article 32 of the Charter and is especially listed in the Four-Power Statement as one of the decisions governed by a procedural vote.” Gross, , “The Question of Laos and the Double Veto in the Security Council,” 54 A.J.I.L. 118, 129 (1960)Google Scholar.

With regard to the first objection it may be observed that it does not appear that the outcome of the Formosa case was affected by the procedure followed. For the representative of China to object to the interpretation of the voting on the preliminary question on a point of order may have been tactically unwise, but it seems clear that the President, with the support of the Council, was disposed to insist on the procedural nature of the resolution under consideration, regardless of the form of the Chinese objection. With regard to the second objection it is submitted that Art. 32 is irrelevant to the Formosa case. The Chinese Communist spokesmen were invited to appear before the Council under Eule 39 rather than under Art. 32, and this is expressly stated in a preambular paragraph of the resolution. U.N. Security Council, 5th Year, Official Records, 506th Meeting, pp. 3-6 (1950). Important differences exist between Art. 32 ana Rule 39. States are invited under Art. 32; persons are invited under Rule 39. States invited under Art. 32 have a status akin to members of the Council; they may participate in the discussion and, if Members of the United Nations, have the right under Eule 38 to submit proposals and draft resolutions. Persons invited under Eule 39 attend as sources of information rather than as participants. The importance of these distinctions is obvious in the case of the unrecognized Chinese Communist regime.

89 The significance of this power of obstruction has been minimized : “It must be remembered that we are dealing here only with the possibility of a decision that what some members consider a procedural matter will be treated as a substantive one. This danger is of relatively minor importance.” Kellogg, , “The Laos Question: Double What Veto?” 45 Va. Law Rev. 1352, 1360 (1959)CrossRefGoogle Scholar.

The distinction between substance and procedure, in the context in which the “double veto” appears, is hardly a minor parliamentary technicality. The preliminary question would not arise unless a permanent member had vetoed the resolution under consideration or had made clear its intention to do so. The determination of the procedural or nonprocedural nature of a resolution thus decides whether the Council can adopt it, and could lead to a situation in which the Council could not function effectively.

90 Kellogg, loc. cit. above, at 1357.

91 Gross, , “The Question of Laos and the Double Veto in the Security Council,“ 54 A.J.I.L. 118, 131 (1960)Google Scholar.