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The Question of Laos and the Double Veto in the Security Council

Published online by Cambridge University Press:  28 March 2017

Leo Gross
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Type
Editorial Comment
Information
American Journal of International Law , Volume 54 , Issue 1 , January 1960 , pp. 118 - 131
Copyright
Copyright © American Society of International Law 1960

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References

1 U.N. Doc. S/4216, Sept. 8, 1959.

2 Security Council, Doc. S/P.V. 848, Sept. 7, 1959, p. 78. Voted in favor: Argentina, Canada, China, France, Italy, Japan, Panama, Tunisia, United Kingdom, United States; voted against: U.S.S.R. Ibid.

3 For the Four-Power Declaration on Voting Procedure in the Security Council, with which France subsequently associated herself, see 11 U.N.C.I.O. Docs. 711. This document will be cited hereinafter as the Four-Power Statement.

4 See Security Council, 5th Year, Official Records, Nos. 48 and 49 (1950).

5 U.N. Doc. S/4213, Sept. 5, 1959.

6 U.N. Doc. S/4212, Sept. 5, 1959.

7 U.N. Doc S/Agenda 1847.

8 U.N. Doe. S/P.V. 847, Sept. 7, 1959, p. 6.

9 Ibid. 8-10.

10 Ibid,. 37-40.

11 Ibid. 41 (italics supplied).

12 It was only the representative of Tunisia “who pointed out this defect, saying: “My delegation would like to note its regret that the Government of Laos did not see fit to address its complaint to the Security Council and that it did not itself request a meeting of the Council. Article 11, par. 2, of the Charter, which it invokes, seems to cover rather the action on the part of the General Assembly. Nevertheless, the request for assistance against aggression and specifically the request for the dispatch of an emergency force are both sufficiently grave so as to come within the purview of the Security Council.” Ibid. 81.

13 Both the President of the Council and the representative of Tunisia referred to a letter from the Prime Minister of the Democratic Republic of Viet-Nam which rejected the allegations of the Laotian Government. Ibid. 4-5, 81. This letter was distributed by the President for the information of the members of the Council but was not part of the documentation before the Council.

14 Ibid 26.

15 Ibid. 41. See also letter dated Sept. 24, 1959, from the Permanent Representative of the United Kingdom addressed to the Secretary General. U.N. Doc. S/4223, p. 3.

16 U.N. Doc. S/P.V. 847, p. 76.

17 Ibid.56.

18 Ibid. 62.

19 Ibid. 51 and 57.

20 The Canadian delegate declared: ‘ ‘ Some properly impartial report on the facts of the situation would, therefore, appear to be necessary before the Council could usefully deal with the substance of the communication to the Secretary-General.” Ibid. 63-65. The delegate of Argentina said: “Can we do less than investigate the facts on the spot?” Ibid. 67-70. In the opinion of China the subcommittee was “ to gather information.” Ibid. 77-80. The delegate of Tunisia noted the absence of “sufficient elements of information” and the need for the subcommittee to contribute “ t o a fair and objective study of the situation.” Ibid. 82-85, 86. The delegate of Panama declared that the subcommittee “would bring the moderating influence of the United Nations into the picture” and “confine itself to submitting the facts to the full Council.” U.N. Doc. S/P.V. 848, p. 16. The President, speaking as the representative of Italy, stated that the draft resolution's “purport is the collecting of information on the situation developing in Laos.” Ibid. 26.

21 U.N. Doc. S/P.V. 848, pp. 32, 33-35.

22 U.N. Doc. S/P.V. 847, pp. 42-45.

23 Ibid. 71.

24 U.N. Doc. S/P.V. 848, pp. 27-30, 31.

25 Security Council, 1st Year, Official Records, No. 2, p. 243. See also Leo Gross, ‘'Voting in the Security Council: Abstention from Voting and Absence from Meetings,'’ 60 Yale Law Journal 209-257, at 215 (1951).

26 Ibid. 244.

27 It should be noted that the Australian delegate at the 37th Meeting on April 25, 1946, submitted a revised text to “ cut out the idea of a formal investigation under Article 34 of the Charter so as to enable the proposed body to be brought in under Article 29 as a subsidiary organ.” Repertoire of the Practice of the Security Council 1946-1951, p. 203 (1954).

28 See note 3 above.

29 The relevant portion of Part II of the Four-Power Statement reads: “ 1 . In the opinion of the Delegations of the Sponsoring Governments, the Draft Charter itself contains an indication of the application of the voting procedures to the various functions of the Council. “ 2 . In this case, it will be unlikely that there will arise in the future any matters of great importance on which a decision will have to be made as to whether a procedural vote would apply. Should, however, such a matter arise, the decision regarding the preliminary question as to whether or not such a matter is procedural must be taken by a vote of seven members of the Security Council, including the concurring votes of the permanent members.“

30 U.N. Doc. S/P.V. 848, p. 41.

31 Ibid. 42.

32 Art. 29 reads: ‘'The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.“

33 U.N. Doc. 8/P.V. 848, pp. 42, 43-45.

34 Ibid. 47-50.

35 See note 29 above.

36 See ibid.

37 U.N. Doc. S/P.V. 848, p. 68.

38 Ibid. 78. The Soviet position and alternative proposals for handling the Laotian complaint were reiterated in the letter dated Sept. 15, 1959, from the Permanent Representative of the U.S.S.R. to the Secretary General, U.N. Doc. S/4222.

39 On this point see Leo Gross ‘'The Double Veto and the Four-Power Statement in the Security Council,” 67 Harvard Law Review 251-280, at 256 ft (1953).

40 U.N. Doe. S/P.V. 848, p. 77.

41 See Gross, loc. cit. note 39, at 277.

42 Rule 40 of the Provisional Rules reads: ‘'Voting in the Security Council shall be in accordance with the relevant Articles of the Charter and of the Statute of the International Court of Justice.” U.N. Doc. S/96/Rev. 4, p. 11.

43 On this point see Gross, loc. cit. note 39 above, at 272, 277 ff.

44 See p. 120 above, the statement by the United States representative that the Laotian note of September 4 “is accordingly now officially before u s .“

45 See p. 123 above.

46 See p. 126 above. See also Gross, loc. cit. note 39 above, at 264, 278: “The practice of the Security Council tends to show that the preliminary question can be raised only when there is reasonable doubt as to the nature of the vote required, and that whenever it was raised, it was treated as a substantive issue.“

47 See Repertoire of the Practice of the Security Council 1946-1951, Cases 49 and 98, pp. 149 and 160.

48 U.N. Doc. S/P.V. 848, p. 76. The President quoted the above passage from 2 Repertory of the Practice of United Nations Organs.

49 For an analysis of this case see Gross, loo. cit. note 39 above, at 259 ff. and 275. See also Rudzinski, “The So-Called Double Veto,” 45 A.J.I.L. 443 (1951).

50 Security Council, 5th Year, Official Records, No. 48, p. 5 (1950).

51 The relevant passage is as follows: “ … the Council will, by a vote of any seven of its members … invite any State when it is a party to a dispute being considered by the Council to participate in the discussion relating to that dispute.'’ See note 3 above.

52 See note 3 above, at 712.

53 The subcommittee declared in its report that it regarded its task as that of an “ inquiry “ rather than “investigation,” the distinction implying “ that it must receive information on the facts from the government concerned, rather than seek facts itself on its own initiative.” Report of the Security Council Sub-Committee under resolution of Sept. 7, 1951, Doc. S/4236, Nov. 5, 1959, p. 7, par. 15. The committee nevertheless visited the sites of the alleged aggression and heard numerous witnesses (civilian officials, military personnel, peasants and civilian population, prisoners and wounded). Ibid., pp. 21-27. The committee concluded “ that although there were actions of different scope and magnitude, all of them—throughout the four periods (from 16 July to 11 October) were of a guerilla character. From the statements of the Laotian authorities, and from those of some witnesses, it appears, however, that certain of these hostile operations must have had a centralized co-ordination. Practically all witnesses (forty out of forty-one) stated that the hostile elements received support from the territory of the D.E.V.N. (Democratic Republic of Viet-Nam) consisting mainly of equipment, arms, ammunition, supplies, and the help of political cadres. The same emerges from the official Laotian documents submitted and from some of the material exhibits. Hostile elements seemed centred around former members of the U.C.P.L. (Unité Combattantes du Pathet Lao—Pathet Lao Combat Units) previously integrated in 1957, the 2nd Battalion of Pathet-Lao, which deserted from the Plaine des Jarres on 11 May 1959, and sections of the frontier minorities (Thais, Meos and a few Khas). According to a document presented to the Sub-Committee by the Laotian Government, participation of regular D.E.V.N. army units were reported during the attacks on the River Ma area on 30 August. The Laotian Government states in another document presented to the Sub-Committee on 15 October 1959, that after 15 September 1959, the D.E.V.N. units re-crossed the border into North Viet-Nam, excepting those who occupied the section of Laotian territory between the left bank of the River Ma and the frontier. Witnesses reported that in certain cases there had been participation of armed elements with ethnic Viet-Namese characteristics, but they did not identify them as belonging to North Viet-Namese regular army units. The ensemble of information submitted to the Sub- Committee did not clearly establish whether there were crossings of the frontier by regular troops of the D.E.V.N.” Ibid., p. 31, pars. 95-98. It appears with clarity from the committee's report that the situation in Laos was vastly more complicated than could be gauged from the debates in the Security Council.

54 See Gross, loc. cit. note 39 above, p. 269 f.