The Search for World Peace
COMMISSION III - Security Council
The United Nations Conference
on International Organization
Doc. 881 (ENGLISH)
June 10, 1945
Committee 3 Enforcement Arrangements
Report of Mr. Paul-Boncour, Rapporteur, on Chapter VIII Section B
Committee 3 of the Third Commission has been charged with the task of redrafting the provisions included in Chapter VIII, Section B, and Chapter XII of the Dumbarton Oaks Proposals.
These provisions have been under consideration by this Committee at meetings held since May 4 under the chairmanship of Mr. Camilo Ponce Enriquez, Minister of Foreign Affairs of Ecuador. It gives me especial pleasure to acknowledge the great credit which is due him for his helpful leadership of the Committee's discussions.
In the course of its first meetings, the Committee was faced by a multiplicity of amendments referring to a single idea, though expressed at times in different paragraphs. It decided to study the various amendments in the systematic order which I had suggested for their classification in my preliminary report.
It is, therefore, in the order thus set forth, that I shall report on the deliberations to which these amendments gave rise.
I. ROLE OF THE SECURITY COUNCIL
An initial category of amendments proposed by the various powers referred to the procedure contemplated in Section B of Chapter VIII for the determination of the existence of threats to the peace or of acts of aggression, and of the role of the Security Council in this procedure.
A. Participation by the Assembly or Enlargement of the Council
A general discussion was first entered into on the proposal to supplement the action of the Security Council by participation of the Assembly in decisions relative to enforcement measures or to provide for the particiaption of states not members of the Council in decisions relative to such measures.
The majority of the powers that expressed their opinion on these two proposals emphasized in the first place that the Council included a majority of members elected by the Assembly, in which all the powers of the international Organization originally reside. For this reason, the Security Council must be granted full confidence since, aside from the question of the unanimity of the permanent members, it expresses, in the final analysis, only the opinions of the Assembly.
They then stated that the application of enforcement measures, in order to be effective, must above all be swift; they recognized in general that it is impossible to conceive of swift and effective action if the decision of the Council must be submitted to ratification by the Assembly, or if the measures applied by the Council are susceptible of revision by the Assembly. This, moreover, would be contrary to the basic idea of the Organization, which contemplated a differentiation between the functions of the Council and those of the Assembly.
Under these conditions, the Committee formally declared itself, by several votes, against intervention by the Assembly in this procedure.
Nevertheless, retaining the idea expressed by a Canadian amendment, a subcommittee was constituted to find a compromise formula which, while taking into account the major consideration that the action of the Security Council should be neither weakened nor delayed, might nevertheless associate states not represented in the Council with decisions concerning the utilization of the forces which they place at the disposal of the Organization.
At the meeting of June 2, the Committee approved the following text of a new paragraph to be inserted between paragraphs 5 and 6 of Section B of Chapter VIII:
"When a decision to use force has been taken by the Security Council, it shall, before calling upon any member not represented on it to provide armed forces in fulfillment of its obligations under the preceding paragraph, invite such member, if it so request, to send a representative to participate in the decisions of the Security Council concerning the employment of contingents of its armed forces."
This supplementary paragraph takes into account the concern very vigorously expressed by many powers that the military forces put at the disposition of the Security Council by the special agreements might be used without the contributing nation having had a voice in the Council meetings where it is decided to use these forces. Henceforth, every member not represented on the Council may participate, with the right of voting, in the deliberations of the Council when it is a question of the utilization of its armed forces. To repeat a well chosen expression of the Delegate of the Netherlands, the principle of "no military action without representation" was accepted by the Committee.
This decision is of such a nature as to reassure, in large measure, the middle and small powers, which might otherwise have feared that they were giving carte blanche to the Council in the particularly serious domain of the utilization of their military forces outside their national frontiers.
It has not appeared possible to extend the conception of ad hoc representation on the Council to include those instances wherein the latter discusses, not the utilization of armed forces, but rather the use of facilities and assistance to be furnished by a state not a member of the Council. As a matter of fact, it was recognized that the adoption of such a formula might unduly increase the number of Council members and delay its decisions.
Furthermore, the desire to take into consideration the well-founded observations of the Egyptian Delegation on this subject led the Committee to approve the explanations furnished by the Delegations of Great Britain, the U.S.S.R., France, and Greece. Accordingly, it was recognized that the question "of facilities and assistance" was already covered by the special agreements contemplated in paragraph 5, Section B, Chapter VIII. Paragraph 9 of the said chapter contemplates, on the other hand, that a state not represented on the Military Staff Committee should be invited to be associated with it should be need arise. Finally, paragraph 4 of Section D, Chapter VI, formally provides for the participation in the Council discussions of any member of the Organization whose interests may be particularly affected.
In the light of these assurances, which covered its point of view, the Delegation of Egypt withdrew its amendment.
B. Limitations on the Council's Freedom of Action
A number of amendments referring to paragraphs 1 and 2 were directed at limiting the very great freedom which, in the Dumbarton Oaks Proposals, is left to the Council in determining what action, if any, to take.
Some of these amendments were designed to make more precise the Council's obligation to act in accordance with the purposes and principles of the Organization and the provisions of the Charter. The Committee considered that, since such specifications were already stated in Chapter VI defining the powers of the Council, it was unnecessary to make special mention of them in the present chapter.
The Committee similarly put aside a proposal which would have obligated the Council to aid any party submitting to judicial settlement. It believed that this unduly restricted the Council's freedom of action and that cases might arise where a party refusing to submit to a judicial settlement might not necessarily be at fault.
C. Determination of Acts of Aggression
A more protracted discussion developed in the Committee on the possible insertion in paragraph 2, Section B, Chapter VIII, of the determination of acts of aggression.
Various amendments proposed on this subject recalled the definitions written into a number of treaties concluded before this war but did not claim to specify all cases of aggression. They proposed a list of eventualities in which intervention by the Council would be automatic. At the same time they would have left to the Council the power to determine the other cases in which it should likewise intervene.
Although this proposition evoked considerable support, it nevertheless became clear to a majority of the Committee that a preliminary definition of aggression went beyond the possibilities of this Conference and the purpose of the Charter. The progress of the technique of modern warfare renders very difficult the definition of all cases of aggression. It may be noted that, the list of such cases being necessarily incomplete, the Council would have a tendency to consider of less importance the acts not mentioned therein; those omissions would encourage the aggressor to distort the definition or might delay action by the Council. Furthermore, in the other cases listed, automatic action by the Council might bring about a premature application of enforcement measures.
The Committee therefore decided to adhere to the text drawn up at Dumbarton Oaks and to leave to the Council the entire decision as to what constitutes a threat to peace, a breach of the peace, or an act of aggression.
D. Provisional Measures Preliminary to Enforcement Measures
An amendment which would have called upon the Council to have recourse to provisional measures before applying enforcement measures, and another amendment specifying the enforcement measures to be taken, revealed the lack of precision of the term "measures" used in paragraphs 1 and 2, Section B, Chapter VIII, of the Dumbarton Oaks Proposals. An explanation was also requested as to the meaning of the word "recommendations" in the same text. A drafting Subcommittee was charged with the work of proposing a rewording of these texts, taking into account the various amendments presented.
In the work of redrafting the texts by the Subcommittee, every effort was made to distinguish between the cases of threats to the peace in paragraph 1 in which cases the Security Council would have latitude to judge whether it should or should not apply enforcement measures, and the cases in paragraph 2 where the Council, having found that a breach of the peace or the act of aggression had occurred, should be obliged to decide upon the application of enforcement measures. The Committee believed that this distinction, which had the merit of clarity, might endanger the Council's free discretion as proposed in the text of Dumbarton Oaks. Too rigid a distinction between threats to the peace and attempts against the peace, or acts of aggression, appeared to the Committee to be in contradiction with the previous decision to avoid a definition of aggression and with the general spirit of the Charter.
Under these circumstances a motion, inspired by a desire to follow more faithfully the original text, was made by China. This motion, which omits paragraph 1 of the Dumbarton Oaks Proposals and constitutes a new paragraph 2 of the amendment concerning provisional measures, reads as follows:
(1) The Security Council should determine the existence of any threat to the peace, breach of the peace, or act of aggression, and should make recommendations or decide upon the measures set forth in paragraphs 3 and 4 of this Section to be taken to maintain or restore peace and security.
(2) Before making recommendations or deciding upon the measures for the maintenance or restoration of peace and security in accordance with the provisions of paragraph 1, the Security Council may call upon the parties concerned to comply with such provisional measures as it may deem necessary or desirable in order to prevent an aggravation of the situation. Such provisional measures should be without prejudice to the rights, claims, or position of the parties concerned. Failure to comply with such provisional measures should be duly taken account of by the Security Council.
The new paragraph 1 which reproduces in effect the provisions of the former paragraph 2 of the Dumbarton Oaks Proposals leaves to the Security Council the task of determining the existence of any threat to the peace, breach of the peace, or act of aggression. According to the circumstances the Security Council should make recommendations and decide upon the enforcement measures to be taken as set forth in this Chapter. It may also initially call upon the parties concerned to comply with provisional measures (paragraph 2).
I would nevertheless be contrary to the opinion generally expressed within the Committee to imagine that the very great latitude thus left to the Council should retard its action or diminish its effectiveness.
This is what Senator Rolin, the Belgian Representative, desired to emphasize by withdrawing in the name of the drafting subcomittee the draft proposed by that subcommittee. Therefore, according to his request it was decided that the new text should be interpreted in accordance with the scope of the following observations, the inclusion of which in the report was unanimously approved by the committee.
(1) "In using the word 'recommendations' in Section B, as already found in paragraph 5, Section A, the Committee has intended to show that the action of the Council so far as it relates to the peaceful settlement of a dispute or the situations giving rise to a threat of war, a breach of the peace, or aggression, should be considered as governed by the provisions contained in Section A. Under such an hypothesis, the Council would in reality pursue simultaneously two distinct actions, one having for its object the settlement of the dispute or the difficulty, and the other, the enforcement or provisional measures, each of which is governed by an appropriate section in Chapter VIII."
(2) "It is the Committee's view that the power given to the Council under paragraphs 1 and 2 not to resort to the measures contemplated in paragraphs 3 and 4, or to resort to them only after having sought to maintain or restore peace by inviting the parties to consent to certain conservatory measures, refers above all to the presumption of a threat of war. The Committee is unanimous in the belief that, on the contrary, in the case of flagrant aggression imperiling the existence of a member of the Organization, enforcement measures should be taken without delay, and to the full extent required by circumstances, except that the Council should at the same time endeavor to persuade the aggressor to abandon its venture, by the means contemplated in Section A and by prescribing conservatory measures."
In addition, assurance was sought by the Canadian Delegation that members would not be required to provide forces in excess of those which had already been promised in the special agreements mentioned in paragraph 5. This interpretation was forthcoming from the Delegate of the United Kingdom, speaking on behalf of the sponsoring governments.
It was after reconsideration of the above observations that the Committee finally approved the new text by a vote of 35 to 1.
II. MECHANISM OF ENFORCEMENT MEASURES
A second category of amendments proposed by various powers refers to the actual mechanism of application of enforcement measures.
A. Economic Measures and other Non-Military Measures
After an exchange of views concerning financial measures and the compatibility of obligations resulting from paragraph 3, Section B, with other obligations deriving from treaties, the Committee adopted paragraph 3, Section B, Chapter VIII, or the Dumbarton Oaks Proposals.
B. Military Measures
The Committee turned then to consider military enforcement measures. In the first place, an amendment presented by the Norwegian Delegation, to provide that the Security Council may "take over on behalf of the Organization the administration of any territory of which the continued administration by the state in possession is found to constitute a threat to the peace", was withdrawn, after it had been indicated that such a reference to a particular procedure could be interpreted as restrictive and of such nature as to limit te the field of application of measures at the disposition of the Council.
The Committee adopted by unanimous vote the text of pararaph 4 of the Dumbarton Oaks Proposals, which gives to the Council the power, when diplomatic, economic, or other measures are considered by the Council to be inadequate, to undertake such aerial, naval, or other operations as may be necessary to maintain or restore international peace and security.
One cannot overemphasize the importance of this unanimous vote, which renders sacred the obligation of all states to participate in the operations.
The principle of enforcement measures of a military nature being thus established, the Committee proceeded to a study of the methods of applying these measures.
1. National Contingents and Special Agreements
It will be recalled that the Dumbarton Oaks Proposals contemplated that the force put at the disposition of the Security Council should take the form of national contingents furnished by the members according to the special agreements to be negotiated subsequently. These contingents would be put into action in accordance with the plans of a Military Staff Committee. Furthermore, the special agreements should specifiy the nunber and type of forces as well as the facilities and assistance to be furnished in each case. Finally, it was contemplated that national air force contingents should be held at the immediate disposition of the Security Council.
We have classified in two categories the amendments relative to this part of the Dumbarton Oaks Proposals, by distinguishing between those which concern the organization and the composition of the national contingents, on the one hand, and those which refer to special agreements, on the other.
In reality, it soon became evident that all these amendments were closely connected and that a comprehensive solution was necessary.
This solution was found in a new draft of paragraph 5. Proposed by the Representative of France in the name of the four sponsoring governments, France, and Australia, this text was unanimously approved by the Committee which considered that it incorporated the substance of the amendments presented and of the observations formulated during the discussion. The text of the new paragraph 5 is as follows:
"In order that all members of the Organization should contribute to the maintenance of international peace and security, they should undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities including rights of passage necessary for the purpose of maintaining international peace and security. Such agreement or agreements should govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. The special agreement or agreements should be negotiated as soon as possible on the initiative of the Security Council and concluded between the Security Council and member states or between the Security Council and groups of member states. All such agreements should be subject to ratification by the signatory states in accordance with their constitutional processes."
Contents of the Special Agreements. One of the criticisms made of the Dumbarton Oaks Proposals was its lack of precision concerning the content of the special agreements. In this respect, the new text contains some specifications of great interest.
Taking into consideration the desire expressed by France, the right of passage is specifically mentioned in the text as one of the "facilities" to be furnished by the member states, although this mention is not intended to exclude the granting of other facilities. The Committee agreed to this inclusion in the light of the precedent contained in the Covenant of the League of Nations, but with the conviction that this important international obligation should not be violated or disregarded as has occurred too often in the past.
The next text of paragraph 5 specifies, on the other hand, that the special agreements should fix the degree of readiness and general location of the forces. It thus incorporates the substance of the amendments introduced by France to paragraphs 5 and 6 concerning the period within which forces must be made available and the zones of occupation of the military contingents.
Agreements Concluded With the Council. Another very serious criticism of the Dumbarton Oaks Proposals made by the Delegations of Australia, New Zealand, and India related to the excessive latitude allowed member states with respect to the conclusion of the special agreements. The obligation imposed upon them was not specific; the consent of the Security Council was presented as a simple formality, to such an extent that one might ask if, in reality, such agreements would ever be concluded and if they would fulfil their objective.
The new text of paragraph 5 remedies these defects inasmuch as it provides:
in the first place, that the special agreements will be concluded on the initiative of the Council. The latter may, should the occasion arise, counteract any dilatory action on the part of a member not anxious to conclude a special agreement; in the second place, that the special agreements shall be concluded between the Security Council and members or groups of members.
Inasmuch as the Council, as such, will be a party in all cases to the special agreements, it may demand that the agreements be formulated in such a manner that they effectively fulfil the aims stipulated for them in the Charter.
This in no way excludes the possibility of the conclusion of special agreements to which several members would be parties. Mention is made, in fact, in the new text of "groups of members" which may be mutually bound by special agreements but on the express condition that the Council itself be included among the signatories and that it would not be satisfied with merely giving its approval.
The progress made on the text of paragraph 5 was considered so satisfactory that it permitted the unanimous adoption without modification of paragraphs 6 and 7 of the Dumbarton Oaks Proposals.
Air Force Contingents. In the light of the explanations furnished on the subject of paragraph 5, it became apparent that the mention in paragraph 6 of national air force contingents to be held immediately available to the Organization could not in any way be considered as restrictive. The mention in paragraph 5 of the "Number and types of forces, their degree of readiness and general location" covers, in reality, military contingents in their entirety, and there is absolutely no question of limiting them to the air force contingents. If air force contingents are mentioned in paragraph 6, it is solely for the purpose of supplementary precision, without the general scope of paragraph 5 being in any way restricted. Under these conditions Australia and France, taking into account these explanations, withdrew the amendments which they had presented in regard to the use of "mixed contingents" or of "forces of all arms".
Paragraph 7. A worthy desire for precision led the Delegation of Chile to ask that it be indicated in paragraph 7 that members of the Organization, in the application of military measures, should act as may be determined by the Security Council and in accordance with the agreements mentioned in paragraph 5. The explanations offered during the discussion of the new paragraph 5 and the fact that such a definition concerning military measures might be interpreted as relieving the member states of their obligations relative to diplomatic, economic, or other measures led the Delegation of Chile to withdraw its amendment.
Paragraphs 6, 7, and 8 — the latter serving only as an introduction to paragraph 9 — were therefore adopted unanimously.
Military Staff Committee. Paragraph 9 of the Dumbarton Oaks Proposals concerning the Military Staff Committee, which is to advise and help the Security Council concerning its military needs, gave rise to an interesting debate.
The Committee unanimously approved an amendment to the effect that the Military Staff Committee should have power to establish regional subcommittees of the Military Staff Committee with the authorization of the Security Council. The Committee further provided that regional staff subcommittees should be constituted only after consultation with regional agencies.
As regards the actual composition of the Military Staff Committee, after having considered various proposals to increase the number of states eligible for representation, the Committee recognized the need for the membership on the Staff Committee to be limited. The Dumbarton Oaks Proposals quite rightly intended an organ composed of a small number of representatives; strategic plans and a means of putting them into effect cannot be formulated in discussions among too large a number of people responsible for them. The explanations given both as regards consultation between the international Committee and the national military staff of any country called upon to provide armed forces, and as regards the role of strategic direction rather than that of military command assigned to the international Military Staff Committee were deemed satisfactory by the Committee.
The Committee therefore unanimously adopted paragraph 9 with the additions just mentioned.
The Delegate of the Netherlands furthermore requested that this report should mention the explanation given by the Delegate of Great Britain to the effect that in his personal opinion the Military Staff Committee should reply to any written or verbal questions raised by members of the Organization which are not represented on this Committee.
Economic Problems of Enforcement Action. In conclusion, having heard various explanations on the subject of mutual assistance between states in the application of the measures determined by the Security Council and having noted the legitimate concern expressed by South Africa that the expenses of enforcement action carried out against a guilty state should fall upon that state, the Committee declared itself satisfied with the provisions of paragraphs 10 and 11.
A desire moreover was expressed that the Organization should, in the future, seek to promote a system aiming at the fairest possible distribution of expenses incurred as a result of enforcement action.
Having duly noted the explanations and suggestions given, the Committee unanimously adopted paragraphs 10 and 11 of the Dumbarton Oaks Proposals without change.
Your Committee has thus accomplished the difficult task which was entrusted to it and which was destined to establish what might justly be considered the keystone of the peace structure which we are in the process of building. As I said in my preliminary report, this part of the Proposals of Dumbarton Oaks constitutes, in effect, from the point of view of security, definite and considerable progress over measures adopted previously and especially over the Covenant of the League of Nations.
Its authors have taken into consideration the experience gained in the course of the twenty years which preceded this war and have adopted some concepts which, allow me to remind you, France has the honor of having advocated since 1919 with Leon Bourgeois, well remembered by those of his Geneva colleagues whom I have had the great pleasure of seeing again here, and which I did not cease to defend in the discussions of the League of Nations.
Military assistance, in case of aggression, ceases to be a "recommendation" made to member states; it becomes for us an "obligation" which none can shirk.
If these proposals are adopted, the international Organization will cease to be unarmed in the face of violence; a collective force the size, the degree of preparedness, the composition, and the general location of which will be determined beforehand will have been placed at the disposal of the Council to carry out these decisions.
Here is a great historic development in the accomplishment of which it will be the honor of the members of Committee 3 of Commission III to have collaborated. May I be allowed, in concluding, to thank them for the zeal and unceasing application they have shown in the course of long and earnest discussions, a testimony of the will for peace and international solidarity which animates all of us here.
Source: Report of M. Paul-Boncour, Rapporteur, on Chapter VIII, Section B, The United Nations Conference on International Organization, San Francisco, April 25-June 26 1945, Committee III/3 (Doc. 881), June 10, 1945, vol. 12, pp. 502-514.
Editorial Note: This is a true copy of the above-referenced original document. This document is reproduced in Benjamin B. Ferencz's work "Defining International Aggression - The Search for World Peace", Vol. 1, as Document No. 17 (i).
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