Simpson, Gerry --- "The Great Powers, Sovereign Equality and the Making of the United Nations Charter" [2000] AUYrBkIntLaw 8; (2000) 21 Australian Year Book of International Law 133
[∗] Senior Lecturer, Law Department, London School of Economics and Political Science. This article forms part of a larger work, Unequal Sovereigns: Great Powers and Outlaws in the International Legal Order, which has been submitted to the University of Michigan in partial fulfilment of the requirements of the SJD degree.
[1] See two recent essays: G Simpson, ‘On the Magic Mountain: Teaching Public International Law’ (1999) 10 European Journal of International Law 70 (discussing legalist, realist and romantic approaches to teaching public international law); G Simpson, ‘The Situation on the International Legal Theory Front: The Power of Rules and the Rule of Power’ (2000) 11 European Journal of International Law 439 (discussing the relationship between international law and international politics). See also, G Simpson, ‘The International Criminal Court and the Politics of Sovereignty’ (1999) 5 University of California (Davis) Journal of International Law and Policy: Symposium on International Criminal Law 195.
[2] This hardly does justice to the nuances of sovereign equality. For a classic account see E Dickinson, The Equality of States in International Law (1918).
[3] G Simpson, ‘Two Liberalisms’ (2001) 12 European Journal of International Law 537.
[4] For a definition emphasising this ‘social’ aspect, see H Bull, The Anarchical Society (1977) 202-230.
[5] Eg, the position of the People’s Republic of China prior to its admission to the Security Council.
[6] D W Greig, International Law (2nd ed, 1976) 709. Greig is not alone. Others, eg, P E Corbett, Law and Society in the Relations of States (1951) 264-265 wrote that the Charter contained merely a ‘salute’ to the principle of sovereign equality. Bengt Broms calls it ‘an act of homage’ with little legal significance: B Broms, The Doctrine of Equality of States as Applied in International Organizations (1959) 166.
[7] L M Goodrich and E Hambro, Charter of the United Nations: Commentary and Documents (2nd ed, 1949) 7.
[8] A Bleckmann, ‘Article 2(1)’ in B Simma (ed), The Charter of the United Nations: A Commentary (1994) 77, 89.
[9] Of course, these positions hardly exhaust the range of possible attitudes towards the UN. The UN system is conceptualised in radically different ways. For some, it represents either a move towards world government or the indefinite postponement of that fantasy. For others, it is viewed as a workable compromise between balancing power and creating just order (though this belief was tested in the post-war period of great power domination and intransigence). Yet another group saw it as a return to the disastrous institutional utopianism of the inter-war period. For a general discussion, see A Roberts and B Kingsbury, Presiding Over a Divided World: Changing UN Roles, 1945-1993 (1994) ch 1. Some of these attitudes are drawn out in an argument presented by Anne-Marie Slaughter when she articulated the underlying tension between realist and legalist images of world order in the foundations of the UN system: A-M Slaughter, ‘The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations’ (1994) 4 Transnational Law and Contemporary Problems 377. My focus is conceptually narrower, however, than that of Slaughter. It is narrower in the sense that I do not attempt to trace the lines of these splits and compromises through a wide range of UN doctrines and institutional structures. Instead, I focus on the debate over equality and, in particular, sovereign equality. This debate takes place and is resolved most obviously in the working principles of the UN’s two political organs, the General Assembly and the Security Council. The intention is to tease out the arguments about equality and the impact they have on the resultant structures of order.
[10] With some exceptions, eg, arts 23 and 27 of the UN Charter were amended in 1965 (providing for an enlarged Security Council).
[11] I remain focused on the workings of the international system and particularly the UN within that system. So, there is no discussion of sovereign equality and legal hegemony in, eg, the Council of Europe or other regional organisations. For an interesting discussion see Greig, above n 6, 717-23.
[12] For reform proposals see B Boutros Ghali, Supplement to An Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the 50th Anniversary of the United Nations, UN Doc A/50/60-S/1995/1, 1-24 <http://www.un.org/Docs/SG/agsupp.html> G Picco, ‘The UN and the Use of Force: Leave the Secretary General Out of It’ (1994) 73 Foreign Affairs 14; S Touval, ‘Why the UN Fails’ (1994) 73 Foreign Affairs 44; A Orford, ‘A Radical Agenda for Collective Security Reform’ (1995) Proceedings of the Australian and New Zealand Society of International Law, Third Annual Meeting 71; G Evans, ‘ “Restoring Peace” and “Enforcing Peace”’ in Cooperating for Peace: The Global Agenda for the 1990s and Beyond (1993) 89, 133. For an interesting discussion of the cyclical nature of ‘reform’ see D Kennedy, ‘A New World Order: Yesterday, Today and Tomorrow’ (1994) 4 Transnational Law and Contemporary Problems 329.
[13] This group made up the majority of already existing sovereign states. Excluded were the axis powers, states that had supported the fascists (eg, Argentina) and states whose government remained contested (eg, Poland).
[14] The Dumbarton Oaks meetings were a series of preliminary negotiations among the great powers. The discussions at Dumbarton Oaks focused almost entirely on security issues and, in particular, the role of the great powers in policing the international order.
[15] These are discussed below in the section ‘At San Francisco: The UN Conference on International Organisation’.
[16] Suggestions presented by the Netherlands Government Concerning the Proposals for the Maintenance of Peace and Security Agreed on at the Four Powers Conference of Dumbarton Oaks as Published on October 9, 1944, January 1945, Doc 2 G/7(j), III United Nations Conference on International Organisations (UNCIO) 306, 315 (emphasis added).
[17] This story is taken up in ‘Two Liberalisms’, see above n 3.
[18] See C Eagleton, ‘The Charter Adopted at San Francisco’ (1945) 39 The American Political Science Review 934, 936. See, too, H V Evatt, The United Nations (1948) 15. For a discussion of the meetings in Metternich’s apartment see B Gooch, Europe in the Nineteenth Century: A History by Brison D Gooch (1970) 57.
[19] See the discussions at Vienna in 1814 and at Versailles in 1919.
[20] See Dumbarton Oaks, Washington Conversations on International Peace and Security Organization. 7 October 1944 <http://www.ibiblio.org/pha/policy/1944/441007a.html>.
[21] United States Department of State, ‘Report on the Crimea Conference: Message of the President to Congress’ (1945) 12 Bulletin 321; R Wedgwood, ‘Unilateral Action in the UN System’ (2000) 11 European Journal of International Law 349, 350.
[22] R Russell, A History of the United Nations Charter: The Role of the United States 1940-1945 (1958) 98. In fact, Roosevelt’s idea was to have two forms of collective security, one aimed at minor transgressors to be dealt with through the quarantine method (sanctions), the other by the full-scale collective enforcement method (against larger states). The problem of Security Council members breaching the peace was not raised at Teheran because the United States was keen to get the Union of Soviet Socialist Republics involved at this stage, ibid 156.
[23] See H Notter, Postwar Foreign Policy Preparation, 1939-1945 (1949) 611-619.
[24] Ibid 103.
[25] United States Acting Secretary of State, 1940.
[26] See Slaughter, above n 9; G Kennan, Memoirs 1925-1950 (1968).
[27] See Russell, above n 22, 241 and Goodrich and Hambro, above n 7, 199.
[28] British Minister of Foreign Affairs, 1940-1945, 1951-1955.
[29] Russell, above n 22, 146. As a United States State Department Memo said prior to the Dumbarton Oaks meetings: ‘This principle of equality should not extend, however, to the field of enforcement, in which the states having greater responsibilities should have correspondingly greater powers’, quoted in Russell, above n 22, 405.
[30 ] Fourth Meeting of Commission III, 22 June 1945, Doc 1149 III/11 XI UNCIO 103, 108.
[31 ] Ibid 109. Note here the genuine belief on the part of the great powers that they had not sought this position but acquired it as a burden or duty ‘imposed’ on them by the international community.
[32] Russell, above n 22, 650.
[33] There is, of course, one very clear inequality of responsibility in the apportionment of the expenses of the organisation among member states. This is relatively uncontroversial now (legally at least) but when the first scale was released the United States baulked at its 50 per cent allocation on the basis that the UN was an organisation of ‘sovereign equals’: Goodrich and Hambro, above n 7, 184.
[34] The Position of the Government of Uruguay Respecting the Plans of Postwar International Organisation for the Maintenance of Peace and Security in the World, 28 September 1944, Doc 2 G/7(a), III UNCIO 26.
[35] D Ninic, The Problem of Sovereignty in the Charter and Practice of the United Nations (1970) 130.
[36] I leave aside here arguments relating to the legal justification for the action as collective self-defence under art 51 of the Charter or as some inherent right to self-defence. See R Higgins, Problems and Processes: International Law and How We Use It (1994).
[37] The Congress of Vienna 1815.
[38] See Treaty of Versailles 1919 in Treaty Series No 4 (1919) (Cmd 153).
[39] The Council of the League of Nations was able to recommend enforcement measures but it could not compel members to take action in the way envisaged by the UN Charter.
[40] N Bentwich and A Martin, A Commentary on the Charter of the United Nations (1950) xi. The League was dissolved in April 1946 at its final meeting. This meant that the existence of the League of Nations and the UN actually overlapped for a short period.
[41] Declaration by the United Nations, 1 January 1942 (Washington Conference) (1941), A Decade of American Foreign Policy: Basic Documents, 1941-49 (1950).
[43] At Vienna in 1815, the smaller powers had merely decorated the proceedings while the great powers met in private to pre-arrange the outcomes of the Congress.
[44] Eg, the text of art 27 is virtually unchanged from that agreed upon at Yalta: Bentwich and Martin, above n 40, xviii.
[45] The question of what to do about enemy states who are also great powers arose more acutely at Vienna where, arguably, France, though an enemy state, remained a great power in defeat. At San Francisco, both Germany and Japan were severely weakened states and demoralised societies. There could be no question of inviting them into the inner sanctum of the Security Council. Of course, the inevitable renaissance of these powers meant that these questions had simply been left to a later date. At Vienna, France was admitted to the great power councils towards the end of the Congress only as a result of a number of successful power-plays by Talleyrand and because France was viewed (by the British and Austrians) as a useful player in maintaining the balance of power against Russia and Prussia. The rehabilitation of Germany and Japan can be explained on similar grounds.
[46] Russell, above n 22, 128.
[47] Ibid 103.
[48] The Soviet phase lasted from 1 August to 28 September 1944 and the Chinese phase from 29 September to 7 October 1944.
[49] Interestingly, the Americans also believed that the presence of China would deflect criticism that the UN was to be a Western-controlled body: Russell, above n 22, 128.
[50] Russell, ibid 272. The Anglo-French alliance and the force of de Gaulle’s personality enabled France to be admitted to the inner sanctum in 1945 after its liberation or when it ‘recovered its greatness’: Russell, ibid 114.
[51] Russell, ibid 199.
[52] Attempts were made by the smaller powers to have the permanent members unnamed in the Charter to take into account changing circumstances. Unsurprisingly, this was rejected by the great powers.
[53] Opinion of the Department of Foreign Relations of Mexico Concerning the Dumbarton Oaks Proposals for the Creation of a General International Organisation, 23 April 1945, Doc 2 G/7(c), III UNCIO 54, 111.
[54] Ibid 117.
[55] There was still a need to determine how other states in the Security Council were to be chosen. Britain suggested military contributions and the Soviet Union, general contributions. The United States feared that this would lead to three levels of states: the P5, those with military power, and others (with these others being effectively excluded from the council should such a proposal be successful). In the end, art 27 embodied a principle by which non-permanent members would be chosen on the basis of regional representation and contributions. (In practice, this operates through a system of rotation and political preference rather than ‘merit’.) But see the inequalities of representation in the General Assembly caused by Byelorussia’s and the Ukraine’s admission to the UN as member states, as well as, more debatably, the premature admission of some of Britain’s former colonies.
[57] The Moscow Declaration 1943, A Decade of American Foreign Policy: Basic Documents, 1941-49 above n 41.
[58] Russell, above n 22, 110.
[59] Opinion of the Department of Foreign Relations of Mexico, above n 53, 106.
[60] United States Secretary of State, 1933-1944. Served as a member of and senior adviser to the American delegation to the United Nations Conference in San Francisco in 1945.
[61] Opinion of the Department of Foreign Relations of Mexico, above n 53, 106.
[62] Goodrich and Hambro, above n 7, 7.
[63] The Teheran Conference, 28 November to 1 December 1943, Declaration of the Three Powers, 1 December 1943, A Decade of American Foreign Policy: Basic Documents, 1941-49 (1950).
[64] Treaty of Alliance between the UK and the Soviet Union and Iran, 29 January 1942, Cmnd 6335, Persia No 1, 2, 5.
[65] Observations of the Government of Venezuela on the Recommendations Adopted at the Dumbarton Oaks Conferences for the Creation of a Peace Organisation, 31 October 1944, Doc 2 G/7(d)(1), III UNCIO 189.
[66] Great Britain was represented by Lord Castlereagh at the Congress of Vienna in 1815.
[67] James Scott, a United States Legal Adviser at the Second Hague Peace Conference, was responsible for developing a plan for a permanent international court that would meet the needs of the great power (for representation in keeping with their status) and the claims of the smaller powers (to sovereign equality in the composition of the Tribunal).
[68] H V Evatt, the Australian delegate, noticed this aspect of sovereign equality when he remarked towards the end of deliberation at San Francisco that ‘the smallest nations had a sense of dignity and self-respect which was really the basis of their international life’: Fourth Meeting of Commission, above n 30, 129.
[69] A Ross, A Textbook on International Law (1947).
[70] Russell, above n 22, 353.
[71] Quoted ibid 357. By 1944, the Moscow Declaration had led to the proposal to establish the Interim Consultative Security Commission (ICSC).
[72] Ibid 241.
[73] Ibid 272.
[74] Ibid 111.
[75] Ibid 206.
[76] Dumbarton Oaks Proposals, art 1, ch 2; Opinion of the Department of Foreign Relations of Mexico, above n 53, 107.
[77] The Position of the Government of Uruguay, above n 34, 26.
[78] France, yet to be accorded status among the great powers, declined the invitation to become one of the sponsoring powers.
[79] Of course, the P5 flourished the ultimate threat towards the end of the Conference in hinting that they would cease to participate if there was not general agreement on the security provisions and veto power. Senator Connolly gave this threat a graphic reality when he tore up the proposed Charter in order to demonstrate what a vote against the veto meant. UNCIO II, 493.
[80] Goodrich and Hambro, above n 7, 17; Broms, above n 6, 160; L M Goodrich ‘Pacific Settlement of Disputes’ (1945) 39 The American Political Science Review 956, 958.
[81] Broms, above n 6, 159. The San Francisco Conference resembled the Vienna Congress in the sense that all the important work was completed in committees and sub-committees. A number of important committees handled the procedural aspects of the Conference while the substantive issues were under consideration by four commissions and within these 12 sub-committees.
[82] Barbosa was elected Judge of the Permanent Court of International Justice in 1921. He represented Brazil at the Second Hague Conference in 1907.
[83] Barbosa had been the most vehement and eloquent advocate of absolute equality in the discussions concerning the PCIJ at The Hague in 1907. See eg, J Brown Scott, The Hague Peace Conferences (vol I, 1909) 459.
[84] It is remarkable how similar these ‘reform’ proposals are to some of the current schemes for redesigning the Security Council to bring it into line with international ‘realities’. See above n 10.
[85] Statement of Questions by the Delegate of New Zealand and of Replies by the Delegate of the United Kingdom at Ninth Meeting, 17 May 1945, Doc WD3, XI UNCIO 317, 319. See Statement of the Delegate of the United Kingdom, ibid 323.
[86] Fifth Meeting of Commission III, 22 June 1945, Doc 1150 III/12, XI UNCIO 163.
[87] Debates occurred over whether the veto applied to both Chapters VI and VII; to both recommendations and decisions; to procedural matters or substantive matters; and to all actions or be excluded from those involving superpowers. Whatever the discussion as Senator Vandenberg wrote, ‘this veto bizness (sic) is making it very difficult to maintain any semblance of the fiction of sovereign equality among nations’: see Russell, above n 22, 725-26, also 717-8; A H Vandenberg Jr (ed), The Private Papers of Senator Vandenberg (1952) 200.
[88] Fifth Meeting of Commission III, above n 86, 165.
[89] Verbatim Minutes of Fourth Meeting of Commission III, above n 30
, 123. H V Evatt, the Australian delegate, justified this approach by arguing that Chapter VII powers ought to be distinguished from Chapter VI duties. Only the former were susceptible to the use of the veto, ibid 108. The great powers themselves seemed to be leaning at this point in the direction of allowing discussion regardless of the objection of a P5 member but were not willing to go further and permit the full menu of conciliation measures to be recommended, ibid 124. The great fear on the part of the P5 seemed to be that allowing changes in voting in Chapters VI and VII might lead to an unstoppable chain of events in which the loss of veto power at the beginning of the chain would lead to its elimination at the end.
[90 ] Amendments to the Dumbarton Oaks Proposals Presented by the Egyptian Delegation, 5 May 1945, Doc 2 G/7(q)(1), III UNCIO 453, 458.
[91] Russell, above n 22, 716.
[92] Ibid 717.
[93] Statement of Questions by the Delegate of New Zealand and of Replies by the Delegate of the United Kingdom at Ninth Meeting, above n 85, 320.
[94] Russell, above n 22, 648.
[95] Suggestions of the Egyptian Government on the Tentative Proposals of Dumbarton Oaks under Examination at the United Nations Conference at San Francisco, 16 April 1945, Doc 2 G/7(q), III UNCIO 446, 449; and Amendments to the Dumbarton Oaks Proposals Presented by the Egyptian Delegation, above n 90, 457.
[96] Brazilian Comment on Dumbarton Oaks Proposals, 2 May 1945, Doc 2 G/7(e), III UNCIO 232.
[97] Report of the Rapporteur of Committee III/1 on Activities of Committee III/1 (Structure and Procedures for the Security Council), Concerning Chapter VI of the Dumbarton Oaks Proposals, 17 June 1945, Doc 1050 III/1/58, XI UNCIO 675, 678.
[98] Summary Report of Seventh Meeting of Committee III/1, 16 May 1945, Doc 338 III/1/14, XI UNCIO 289; Opinion of the Department of Foreign Relations of Mexico, above n 53, 111.
[99] Brazilian Comment on Dumbarton Oaks Proposals, above n 96, 236.
[100] Fourth Meeting of Commission III, above n 30, 116; Fifth Meeting of Commission III, above n 86, 163.
[101] Statement on Behalf of the Australian Delegation Regarding the Report of Committee 3 of Commission III on Chapter XII (Transitional Arrangements) Annex to Fifth Meeting of Commission III, above n 86, 198.
[102 ] Though not necessarily judicial review, see J Alvarez, ‘Judging the Security Council’ (1996) 90 American Journal of International Law 1 and T Franck, Fairness in International Law and Institutions (1995).
[103] Verbatim Minutes of the First Meeting of Commission III, 13 June 1945, Doc 943 III/5, XI UNCIO 12, 13. Another possibility was that states not members of the Security Council play a larger role in the Council’s deliberations either when the interests of these states were at issue or when it was envisaged that these states might have to contribute military forces in Council action; ibid 14.
[104] Observations of the Government of Venezuela, above n 65, 189, 196. The Venezualans also called for a larger role for the ICJ with the possibility that it might ‘intervene’ in political conflicts, ibid 209.
[105] Observations of the Guatemalan Government Regarding the Proposal for the Establishment of a General International Organisation for the Maintenance of Peace and Security in the World, 23 April 1945, Doc 2 G/7(f), III UNCIO 254.
[106] Comments of the Government of Costa Rica, 5 December 1944, Doc 2 G/7(h), III UNCIO 274.
[107] Fourth Meeting of Commission III, above n 30, 113; Verbatim Minutes of the First Meeting of Commission III, above n 103, 16.
[108] Verbatim Minutes of the First Meeting of Commission III, above n 103, 17; Russell, above n 22, 671-2.
[109] Summary Report of Ninth Meeting of Committee III/1, 18 May 1945, Doc 417, III/1/19 XI UNCIO, 305. Ibid 309.
[110] Russell, above n 22, 656. See also, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Libyan Arab Jamahiriya v United States of America) [1998] ICJ Rep 115.
[111] Goodrich and Hambro, above n 7, 173.
[112] UNCIO VII, 505, quoted in G Nolte, ‘The Limits of the Security Council’s Powers and its Functions in the International Legal System: Some Reflections’ in M Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (2000) 315, 317.
[113] Fifth Meeting of Commission III, above n 86, 163.
[114] Suggestions presented by the Netherlands Government, above n 16, 314.
[115] Goodrich and Hambro, above n 7, 29. The Council has in recent years established ad hoc criminal courts SC Res 827 (1993); imposed new obligations on states SC Res 687 (1991) and acted as a quasi-judicial body, eg, SC Res 705 (1991). See Franck, above n 102. It has also considerably expanded the category ‘threats to the peace and security of …’ to include failed states, internal wars and failure to comply with disarmament treaties, ibid 218.
[116] The extent of these powers are themselves the subject of controversy among scholars. One group argues for a ‘constitutional’ reading of the Council’s powers based on the Charter’s principles and powers or the constraining effects of the Charter’s text: see T Franck, ‘Fairness in the International Legal and Institutional System: General Course on Public International Law’ (1993) 240 Collected Courses of the Hague Academy 189. Another group adopting a ‘realist’ position denying to the Charter (or even international law) and restraining potential: see Alvarez, above n 102.
[117] Art 23. Note that Russia has ‘succeeded’ to the Soviet Union’s seat at the Security Council in 1990 and the People’s Republic of China replaced Taiwan as the Chinese representative in 1971.
[118] Art 110 also required the ratification of each of the P5 before the Charter could come into force. Only a majority of the other states was required.
[119] See, too, the ‘implacable hostility’ shown towards Trygvie Lie by the Soviet Bloc after the Korean enforcement action. See H G Nicholas, The United Nations (1962) 156. The Security Council also shares certain powers with the General Assembly (eg, powers of election relating to membership of the organisation and the choice of judges at the ICJ).
[120] K Annan, Secretary-General Presents Annual Report on Work of Organisation, as 55th General Assembly Begins General Debate, GA/9760, 200. For the distinction between reform of the UN requiring amendment and reforms that can be carried out more informally, see L Sohn, ‘Important Improvements in the Functioning of the Principal Organs of the United Nations That Can Be Made Without Charter Revision’ (1997) 91 American Journal of International Law 652.
[121] B Fassbinder, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (1998).
[122] Art 106 also permitted the P5 some latitude to use force outside the Charter scheme pending the coming into force of art 43 (and thus art 42). Some scholars, of course, argue that art 43 has never come into force: see Higgins, above n 36. Do the P5 thereby retain their powers under art 106? See, too, the continuing powers of UN members in relation to the use of force against ‘enemy’ states, art 106.
[123] On absence see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16. On abstention, see art 27(3); British Statement to Political Committee, GAOR III Ad Hoc Committee Meetings 6 April to 10 May, 200. The veto operates only in respect of non-procedural matters. For a discussion of the difference between procedural issues and non-procedural matters see, Greig, above n 6, 707-9. One could argue that the Rules of Procedure provide for a dilution of hegemony by permitting the President of the Council to declare a procedural or non-procedural draft resolution (Rule 30). Such a ruling can only be reversed by a nine-member majority. The permanent members of the UN are also permanent members of the now largely moribund Trusteeship Council. In fact, the P5 are now the sole members of that Council. The P5 were able to act individually in preventing the adoption of the UN Charter. See Ninic, above n 35, 132.
[124] Bentwich and Martin, above n 40, xvi, even suggest that the relationship of UN members to the Security Council was a principal/agent relationship in which members delegated authority to the Council.
[125] Ninic, above n 35, 132. See eg, SC Res 794 (1992) and 837 (1992) on Somalia.
[126] On the transition from unanimity to majority voting see eg, T J Lawrence, International Problems and the Hague Conferences (1908); W Schucking, The International Union of the Hague Conferences (1918) (C Fenwick trans).
[127] J Brierly, The Outlook for International Law (1944) 99, quoted in Fassbinder, above n 121, 280.
[128] Fassbinder, above n 121, 281.
[129] Franck, above n 102, 484.
[130] Goodrich and Hambro, above n 7, 25.
[131] The Soviet Union ended up with two extra seats (those of Byelorussia and the Ukraine). Stalin had placed enormous pressure on the United States in this regard, arguing that the Soviet republics were at least as important as Liberia or Guatemala and at least as independent as the Philippines and India. Secretary Stettinius described this frankly as ‘the multiple membership of the Soviet Union’: quoted in Russell, above n 22, 535. Roosevelt confirmed this interpretation in Malta when he distinguished the admission of the British dominions and that of the Soviet Republics: ‘it was not a question of a new country but of giving one of the Great Powers three votes instead of one in the Assembly’: Malta and Yalta Documents, 775, quoted in Russell, ibid 538. The Soviets suggested that the United States also get two extra votes in order to secure equality: Malta and Yalta Documents, 967, cited in Russell, ibid 539. However, this raised the question of why the United Kingdom had six votes (these votes being the Dominion votes controlled by the United Kingdom delegate) and the United States and the Soviet Union only three, Russell, ibid 596.
[132] Observations of the Government of Venezuela, above n 65, 195.
[133] For a discussion of some of these images of the UN, see Roberts and Kingsbury, above n 9.
[134] The legal effects of General Assembly resolutions were a matter of some discussion among international lawyers in the 1960s and 1970s. Prima facie, the General Assembly’s recommendations have no law-making effect. The General Assembly is the ‘open conscience’ of the world: Goodrich and Hambro, above n 7, 150, but as with all consciences it has no direct legislative capacity. However, General Assembly resolutions can contribute to the formation of the opinio juris limb of customary international law: see R Higgins, The Development of International Law Through the Political Organs of the United Nations (1963). The ICJ in Nicaragua went further in suggesting that General Assembly resolutions can be construed as state practice. This doctrine proved to be highly controversial among scholars. See eg, H G Maier, ‘Appraisals of the ICJ’s Decision in Nicaragua v US (Merits)’ (1987) 81 American Journal of International Law 77.
[135] Goodrich and Hambro, above n 7, 25.
[136] See arts 15, 98, 16, 60, and 85.
[137] Art 13(1)(a).
[138] Arts 17, 18 and 61. In addition, the General Assembly can discuss and make recommendations relating to any matter ‘within the scope of the present Charter’ (art 10) providing it does not trench on Security Council action under art 12.
[139] These categories are found in Goodrich and Hambro, above n 7, 26.
[140] The General Assembly is also involved in the election of judges to the ICJ (art 4 of the Statute of the ICJ) and in the appointment of the Secretary-General (art 97).
[141] Eg, the General Assembly has constantly tried to chip away at the power of the Security Council in the admissions process by making recommendations to the Council and by initiating an Advisory Opinion on the powers of Security Council members; in the peace-enforcing realm with its Uniting for Peace Resolution GA Res 377 (1950) and in the peacekeeping area where it possessed primary responsibility during the first phase of peace-keeping operations. On enforcement, see Resolution 376 (1950); on peace-keeping see Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151; on admissions see Conditions of Admission of a State to Membership in the United Nations (Advisory Opinion) [1948] ICJ Rep 57.
[142 ] Perhaps the most famous being the Uniting for Peace Resolution, above 141. See also the discussions of the Palestine and Spanish cases in Goodrich and Hambro, above n 7, 153-163.
[143] Eg, Certain Expenses of the United Nations (Advisory Opinion), above n 141 where, in turn, the Court held that a General Assembly innovation, ie peace-keeping, was legitimate.
[144] See a proposal from the Canadian Delegation that a category of ‘middle powers’ be recognised in the Charter: Ninic, above n 35, 119.
[145] United States Minister of Foreign Affairs, 1953-1959.
[146] J Dulles, War and Peace (1950) 197, quoted in Ninic, above n 35, 119.
[147] This time it was the representation of the citizens of Iceland and the United States was compared: see Romulo, first session of the GA UNGA Official Records, 1252, cited in Ninic, above n 35, 120. See, too, arguments in M S Korowicz, Organisations Internationales et Souveraineté des Etats Membres (1961) 208.
[148 ] There has been some debate about the precise meaning of ‘peoples’ in this regard. It seems unlikely that it was to apply to peoples in the decolonisation sense because self-determination was not regarded as a right in the Charter. However, the terms ‘peoples’ and ‘states’ are employed loosely in the Charter and it does not seem absurd to suggest that what arts 1(2) and 55 represent are attempts to link sovereign equality to economic development and the promotion of human rights within states. For confirmation of this view, see Bentwich and Martin, above n 40, 7.
[149] Bleckmann, above n 8, 78. Bleckmann goes on to suggest that sovereign equality also means that the UN ‘must not infringe [state] sovereignty’. This hardly seems a plausible reading of the Charter now (see art 2(7)) but in 1945 many states regarded the principle in this light.
[150] Greig, above n 6; Goodrich and Hambro, above n 7; and Bleckmann, above n 8.
[151] Fifth Meeting of Commission III, above n 86, 163.
[152] Weighted voting did of course, feature in the Bretton Woods Agreements. For a consideration of voting procedures at the International Monetary Fund and World Bank, see L Sohn, ‘Weighting of Votes in an International Assembly’ (1944) 38 The American Political Science Review 1192; E McIntryre, ‘Weighted Voting in International Organizations’ (1954) 8 International Organization 484; J Gold, Voting and Decision in the International Monetary Fund: An Essay on the Law and Practice of the Fund (1972); J Gold, ‘Developments in the Law and Institutions of International Economic Relations’ (1974) 68 American Journal of International Law 687; S Zamora, ‘Voting in International Economic Organisations’ (1980) 74 American Journal of International Law 566; W Gainaris, ‘Weighted Voting in the International Monetary Fund and the World Bank’ (1990-1) 14 Fordham International Law Journal 910. See also the existence of plural voting at the International Labour Organization, the International Atomic Energy Agency, and the International Maritime Organisation.
[153] It is sophistic to argue that legal hegemony is an expression of sovereign equality because sovereign states have contracted together to form an international organisation with legal hegemony at its heart (this argument is described in Fassbinder, above n 121, 289). Perhaps hierarchy can be defended on voluntaristic grounds but only at the cost of saying anything meaningful about the way the Charter was created, the ways in which it actually operates and, in particular, the manner in which the whole collective security regime is premised on radical inequality.
[154] Bentwich and Martin, above n 40, 12.
[155] Eg, arts 2(4), 2(7) and 2(1).
[156] I have given the word ‘legislative’ a liberal definition here. What I mean is that the General Assembly has played a critical role in the development of international law through custom and through its Sixth Committee and the International Law Commission. I realise there is another sense in which it is clearly not a legislative body. Indeed, arguments have been made that the Security Council lacks direct law-making authority in the classic sense even though it can establish ‘norms’. I find these arguments unpersuasive. See eg, M P de Brichambaut, ‘The Role of the United Nations Security Council in the International Legal System’ in Byers, above n 112, 269.
[157] Equality of consent, too, is diminished by the Charter’s embrace of the majority idea. All UN organs decide either by simple majority or some form of special majority. Compare this to the League of Nations’ preference for unanimity: Bentwich and Martin, above n 40, 11.