Authors: Adam Roberts,Vaughan Lowe,Jennifer Welsh,Dominik Zaum
The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (16 page)
Just as the framers of the Constitution of the United States, by not attempting to write out all possible interpretations beforehand, had provided the basis for the emergence of a great world power, so, it would be wiser for the framers of this Charter to leave some questions to the future. In this way, the Security Council and the Assembly would be able to respond to the needs of future times.
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From Dumbarton Oaks to San Francisco, the Chinese position had clearly shifted decisively to the flexibility–adaptability side of the debate. Though unenthusiastic about the veto, Canada favoured allowing the common law to develop over time through Council practice over trying to impose strict guidelines at San Francisco.
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As the historian Charles K. Webster, one of the leading British planners, put it, at San Francisco, ‘the smaller states pressed for detailed definition of all the occasions on which Great Power concurrence would be necessary’, but ‘when forced to define future actions, states, like individuals, try to safeguard themselves against unforeseen contingencies.’
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The British government, noted Adam Roberts, ‘wanted a strong Security Council, free to act in a variety of situations’.
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According to Grayson Kirk, a political scientist from Columbia University who served in San Francisco as the Executive Officer of Commission III on the Security Council, the founding conference agreed that ‘the Council has full discretion in deciding when a situation is a genuine “threat”.’
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In his view, ‘the final decision on this point [definitions] completely rejected the notion, advanced by many jurists over a period of decades, that it is feasible to set up a satisfactory definition of aggression. The sense of the decision was that, in the broadest sense of the term, enforcement action was a political as well as a juridical act.’
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In including the phrase ‘threat to the peace’ in Article 39 of the Charter, Kirk points out, the founders determined that ‘it is not necessary … for the Council to wait until an actual breach of the peace has occurred before it invokes the use of its own coercive measures.’
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The Charter places no restriction on the Council’s right to make such a determination, other than the generic rule in Article 24(2) that the Council ‘shall act in accordance with the Purposes and Principles of the United Nations’.
Given the hyperactivity of the Security Council in recent years, it would be easy to assume that the debate in San Francisco was between great powers seeking freedom to intervene at will and smaller powers trying to curb such tendencies. Actually, both sides of the argument were much more nuanced than that. As John Foster Dulles, a member of the US delegation at San Francisco, assured the US Senate, the weaker countries were more concerned that the Council would not act than that it would.
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Having suffered so much over the course of the war, many smaller states were looking for security assurances, if not guarantees, by urging definitions and guidelines that would push the major powers to act when their smaller neighbours were threatened.
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The French rapporteur on enforcement arrangements, Joseph Paul-Boncour, tried to reassure smaller delegations that they should not ‘imagine that the very great latitude thus left to the Council would retard its action or diminish its effectiveness.’
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Supporters of a Bolivian amendment to define aggression nevertheless contended that ‘the Organization must bind itself to oppose lawless force by lawful forces in certain cases where action should be obligatory.’
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The group of large and small countries opposing the Bolivian motion, on the other hand, argued as follows:
Any attempt to make Council action automatic would be dangerous for it might force premature application of sanctions. The safest course would be to give the Council discretion to decide when an act of aggression had been performed. The six nonpermanent members of the Council could veto action in such circumstances.
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Wary of the Senate’s allergy to binding commitments, American delegates were particularly keen for the Council to retain maximum flexibility.
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In reference to Article 39, Secretary of State Edward Stettinius reported to the US President that ‘if any single provision of the Charter has more substance than the others, it is surely this one sentence, in which are concentrated the most important powers of the Security Council. It leaves wide latitude to the discretion of the Security Council.’
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By his count, ‘an overwhelming majority of the participating governments were of the opinion that the circumstances in which threats to the peace or aggression might occur are so varied that the provision should be left as broad and as flexible as possible.’
The US was hardly alone in celebrating the Council’s relative freedom of choice in determining the nature of a conflict and the appropriate response. M. Paul-Boncour reported that his committee had rejected all amendments that ‘might endanger the Council’s freedom of judgment’,
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while affirming the proposal from Dumbarton Oaks ‘to leave to the Council the entire decision as to what constitutes a threat to the peace, a breach of the peace, or an act of aggression.’
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With little discussion and unanimous judgement, the Subcommittee on Drafting interpreted ‘broadly’ the Dumbarton Oaks suggestion that the Council be empowered to ‘investigate any dispute whatever, or any situation “which may lead to international friction or give rise to a dispute”’.
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Charles Webster claimed that the British delegation deserved credit for amending the Dumbarton Oaks proposals in a manner that ‘increased the power of the Security Council to pronounce the merits of a disputed.’
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Likewise, the Chinese applauded the addition of the ‘provisional measures clause’ (now Article 40) at San Francisco to bolster the Council’s flexibility.
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Though the Security Council had been decided upon prior to the first use of an atomic weapon, the founders did not see this as a disabling liability in dealing with this new threat. Webster, for example, asserted that those who claimed atomic energy had made the UN out of date were wrong, as the UN’s machinery – especially that of the Security Council – ‘provides a centre, a method and a body of principles by which all of these problems can be resolved’.
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Leland M. Goodrich and Edvard Hambro, two veterans of San Francisco from the US and Norway respectively, commented that the somewhat vague provisions of the Charter had permitted ‘a more liberal exercise of the right of self-defense’ in the face of Cold War divisions and the advent of atomic weapons.
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Likewise, the founders did not see the Council as the exclusive international instrument for addressing the myriad of security threats likely to emerge over time. According to Leo Pasvolsky, the US State Department’s point man throughout the planning and deliberations, the existence of the International Court of Justice (ICJ) and regional arrangements could help ‘to keep the Security Council from being snowed under by all sorts of disputes and difficulties which can and should be handled without reference to it’.
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In this, as in many things, he was prescient.
LEXIBLE
R
ESPONSE
From the beginning of the planning process, the assumption of Security Council flexibility in deciding when to act was echoed by a similar preference for leeway in how it might choose to respond. As mentioned previously, the US State Department’s ‘Tentative Proposals for a General International Organization of July 1944’, for instance, asserted that the ‘executive council should be empowered to determine the existence of any threat to the peace or breach of the peace, and to decide upon the action to be recommended or taken to maintain or restore peace’.
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Much of this proposed language, of course, survived scrutiny at both Dumbarton Oaks and San Francisco to become part of the Charter. According to Leo Pasvolsky, the Big Four at Dumbarton Oaks sought to create ‘flexible machinery’ given the varied contingencies the Council was likely to face.
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The Council was to ‘have full authority to take whatever measures are necessary to maintain or restore peace.’
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As Grayson Kirk put it, in commenting on the enforcement provisions of the Charter, ‘freedom to decide when to apply coercive measures is matched by an equal discretion as to what measures may be taken.’
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At San Francisco, the convening powers were hardly alone in their determination to allow the Council to choose from a variety of tools for dealing with threats to the peace. There was little dissent on this score. Recognizing that the use of collective force might be necessary ‘in a few hours or a few days’, the Norwegian Chair of Commission III on the Security Council, Ambassador Wilhelm M. Morgenstierne, declared that the Charter’s enforcement provisions ‘go to the very heart of our aspirations for a world of peace and security’.
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It was, in the words of French rapporteur Paul-Boncour, ‘the progress of the technique of modern warfare’ that demanded such a flexible response.
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Similarly, the French government’s commentary on the Dumbarton Oaks proposals observed that the nations of the world were attempting ‘to elaborate the chart of a new international organization in a period when progress gives to means of aggression a character of decisive efficacy and speed’.
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When Uruguay suggested adding more specific details about the Council’s Military Staff Committee, ‘the wisdom was questioned of attempting to write into the Charter such specific details’, and the proposal was subsequently withdrawn.
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The most consequential step at San Francisco toward codifying the Council’s freedom of choice, however, was based on a Canadian initiative. In order to confirm and clarify the general consensus that the Council should be free to determine the sequence in which it utilized its Charter-based tools, N. A. Robertson of the Canadian delegation proposed amending the language of what was to become Article 42 on the use of armed force to maintain or restore international peace and security. The Canadian language clarified that the Council could decide to take military action either if it considered other measures to ‘have proved to be inadequate’ or if it considered that lesser steps ‘would be inadequate’.
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In discussing this addition, the Chairman of the Coordination Committee, Leo Pasvolsky, asserted that ‘the Security Council was empowered to take any measures deemed necessary in any sequence.’
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This interpretation was confirmed by the Secretary of Committee III/3, which had addressed this provision.
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By adding the phrase ‘would be inadequate’ at San Francisco, the founders, in Grayson Kirk’s view, insured that the Council’s ‘discretion, thus, is virtually absolute in choosing the type of coercion which it considers best adapted to meet the situation at hand’.
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While in recent years high-level UN officials have frequently proclaimed that the employment of force should be a last resort, clearly that is not what the founders had in mind.
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The leeway given the Council, however, was not confined to the order of coercive measures to be employed. It also extended to the choice of coercive or non-coercive instruments. Kirk reports that a central question before the delegates was: ‘would the Council be required to exhaust all the means of pacific settlement at its disposal before it could apply military measures?’
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In his words,
The general principle adopted, and the one which runs consistently throughout the Charter, was that the Council should have the greatest possible flexibility in handling a situation which menaced the peace of the world. A companion principle was that responsibility for all action should be lodged exclusively with the Council. These two conceptions formed the basis for all the decisions taken. Both conceptions were adopted in light of League experience. As matters now stand, there is no fixed point which must be reached before the Council can resort to means of coercion.
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Secretary Stettinius confirmed this interpretation in his report to US President Harry S. Truman on the results of the San Francisco conference. ‘The sequence of Articles 41 and 42 does not mean that the Council must in all cases resort to non-military measures in the first instance’, he reported. ‘While ordinarily this would be the case, since crises generally take a long time to develop, in a case of sudden aggression the Security Council may resort at once to military action without proceeding through an intermediary step, and the language of Article 42 has been refined to make this clear.’
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One of the more consistent themes invoked at San Francisco by delegations from throughout the world was the need for prompt and decisive action by the Security Council. As Secretary Stettinius related to the US President, the Council ‘is to be in continuous session in order to assure that at all times it feels the pulse of the world and is prepared to take appropriate remedial measures when the earliest symptoms of irregularity become apparent’.
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In his view, ‘enforcement measures, in order to be effective, must above all be swift.’
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Therefore, efforts either to enlarge the Council or to give the General Assembly some voice in its decisions ‘were eventually discarded in the interest of greater speed and certainty of enforcement action, but only after a vigorous discussion in which certain of the smaller nations, especially some which had experienced occupation by the enemy, gave strong support to the position of the great powers’.
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Likewise, US Senator Warren R. Austin sought, and received, reassurance at the Senate hearings on the Charter that Article 37 on the peaceful settlement of disputes would not ‘delay the application of armed force to the situation while [the Council] considers the merits of the issue’.
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In responding, Leo Pasvolsky underlined that ‘the Council does not have to wait until there is a determination of who is right and who is wrong. The problem is to stop the fighting or to remove the threat to the peace as soon as possible.’
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