Revising the Charter

THE American people were not pushed into the United Nations, and they did not stumble into it. Most of them believed that they owed it to themselves as well as to all mankind, following the most devastating of world wars, to join the influence and idealism of the United States to those of other nations to establish at long last an effective organization to maintain peace and security.

The Charter of the United Nations, adopted at San Francisco June 26, 1945,^[i] undertook to define "international order" and to establish certain institutions pertaining thereto. It was, of course, never supposed--and is even less to be supposed now--that these were to be the sole and preëmptive institutions of international order. Indeed, as was said by Dr. Leo Pasvolsky, a leading authority on the Charter:

The truth of the matter was that by establishing the United Nations, the peace-seeking nations of the world were providing themselves with a new and important mechanism for the conduct of international relations, but one that was to be supplementary to all the other machinery of international relations, rather than one that would entirely supplant the latter.^[ii]

The American tradition is that the general welfare is best promoted through cooperative, rather than dictated, effort. The Charter of the United Nations realistically interprets "general welfare" by counting among its enemies not only violence, aggression and imperialisms, large and small, but also those other ancient enemies of man: disease, poverty, ignorance and slavery. "Collective security" both as a means and an end depends upon a general agreement: (a) that these dangers to society are clear, present and common; and (b) that the burdens of collective defense against them should be shared as equitably as possible.

The Charter has two specific and interrelated purposes: 1, as set forth in Article I, the maintenance of "international peace and security;" and, 2, as set forth in Article 55, the promotion of "conditions of stability and well-being which are necessary for peaceful and friendly relations among nations" (italics added). This broad definition of the common objectives of a free society, and the machinery established or proposed for giving them effect, made the United Nations in a sense a projection of our own concepts into the international community.

II. SHOULD THERE BE A CONFERENCE?

Nevertheless, it is natural that room should be made for occasional attempts to clarify the purposes of the United Nations and to simplify its methods. Article 109 provides this, as follows:

1. A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the Members of the General Assembly and by a vote of any seven members of the Security Council. Each Member of the United Nations shall have one vote in the conference.

2. Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations including all the permanent members of the Security Council. [This repeats the amendment procedures embodied in Article 108.]

3. If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly, and the conference shall be held if so decided by a majority vote of the Members of the General Assembly and by a vote of any seven members of the Security Council.

Confronted as we are with all the problems arising from the cold war and left over from the last hot one, there are plenty of grounds for frustration and therefore, one would think, for reexamination. Eight years after the end of the war we face: unsettled treaties of peace; the legacy of destruction and loss of manpower of two world wars and many local ones; the Communist enslavement of millions, and the constant threat of enslaving millions more; the fracturing of the world by the Iron Curtain. In view of the risks of conflict in these circumstances, some think that the United Nations is not providing the full measure of collective security which is to be expected from a world organization. Is this because the United Nations Charter is "blocking the way?" If so, should the Charter be amended? Or should the United Nations be abandoned? More concretely, in view of the fact that a Conference of United Nations members to consider all these problems might be held, under Article 109, three years hence, should we urge and prepare for such a Conference?

Amendment, if there is a conference, will not be as easy as many seem to think. A two-thirds vote is required in the General Assembly; there are five Powers with a veto in the Security Council over any actions taken by the General Assembly; and even if all these hurdles were cleared, the amendments adopted would still have to be ratified by two-thirds of the member governments.

There are, in fact, three alternative aims which we might have in view in favoring a conference, and we should be clear in advance which we are seeking:

1. A "punctuation" conference.

2. A "showdown" conference.

3. A "propaganda" conference.

The first of these would be a conference confined to making technical improvements in the language of the Charter, removing ambiguities and the like. That would not seem worth the effort or expense. In any event, such technical revisions as may appear valuable to experts can be proposed in the Assembly at any time.

The second--a conference in which we would propose major changes which must be accepted "or else"--has some appeal to those who have concluded that continued Soviet membership in the United Nations is not in our national interest. Not all of these go so far as to favor our withdrawal from the United Nations in the event the Soviet Government, acting true to form, rejected a settlement of all issues in one all-embracing prolonged conference, as it has rejected piecemeal settlements in innumerable short conferences, formal and informal. But there are some who advocate "kicking the Russians out"--which is merely another way of saying that we should withdraw, since the Soviets can veto their own expulsion. The advocates of this course favor a "showdown" conference precisely because it would precipitate a break-up of the organization.

This leads us to consider whether Soviet membership in the United Nations is indeed adverse to our own interest and security--so adverse, even, that we should dissolve the organization by walking out of it if the Soviet Government vetoed revisions which we proposed. Soviet adherence to the Charter is seen today to have been dictated by a cynical policy, for the U.S.S.R. has been in contempt of its obligations from the beginning. Nevertheless, various advantages accrue to the free world from continued membership by the Soviets:

(a) They can be held legally and morally accountable for violations of their commitments to the Charter's code of conduct. (b) They are subject to moral and political pressures in the United Nations forum--the biggest hole in the Iron Curtain. (c) They are constantly forced to reveal the true nature, purposes and operating methods of the Soviet system, often with perceptible impact even upon the naive or cynical. (d) They are available for negotiation on specific issues--a most important consideration since United Nations delegates have a general feeling that continuing discussion of specific issues with the Soviets is more likely to produce a certain measure of agreement than are large-scale and dramatic efforts for a general settlement. (e)The processes of the United Nations make it easier for weak or wavering members to "line up with conscience" in hard cases, like that of the Soviet troops in Iran.

Those who see the United Nations as the cause of our difficulties, rather than as a reflection of them, are attracted by the prospect of an organization free of the Soviets and hence free of Soviet obstruction. Their views shade into the attitude of those who think we would be better off with no United Nations at all. These advocates of retreat to national or regional isolation (as well as, indeed, some of those who support a radical "transformation" of the United Nations) do not fear that the loss of the "neutrals" or the establishment of a rival "peace" organization by the Soviets would weaken our efforts to build a strong coalition. On the contrary, the defection of the neutrals is often favored. It is said: "We must separate the men from the boys." Or, "It is time for people to stand up and be counted." Or, "You are either with us in this thing or against us." And as for the possibility that the Soviets might establish a rival United Nations, it is usually assumed that our side would be able to hold on to the Charter "copyright."

These arguments aside, it seems certain there would be strong bipartisan opposition within the United States to a "showdown" conference. Not only our free world partners, but many Americans, would be reluctant to confront the Communists with an ultimatum, having in mind Ambrose Bierce's definition of that term as "the last warning before resorting to concessions."

The third alternative is a "propaganda" conference: one in which we seek substantive Charter changes but do not necessarily expect to get them. It would be a "propaganda" victory, it is argued, merely to show that the Soviet Union was in the wrong, and to dramatize the deadlock. This might be described as a sort of peace conference in the cold war.

The essential question here is whether such a conference would be more likely to reveal or further obscure the actual roots of the conflict between the Soviet system and the free world. If one leans toward the view that the United Nations is at least partly responsible for the deadlock, or that our quest for security is thwarted by the United Nations (either because it does too much or too little), then this sort of conference to review the Charter would be thought likely to reveal the issues and lead to better public understanding. It would presumably "expose" the shortcomings of the United Nations and the pitfalls in our continued membership in it.

On the other hand, if one accepts the fact that the world danger lies in Soviet attitudes and policies, then an abortive conference to discuss organizational and procedural matters would be seen as concealing the true problems, confusing public opinion and frustrating those who would like to deal with the root causes of the troubles we face. This would weaken American support for the United Nations, or for any other international coöperation, since most people regard the two as synonymous.

Nor should we forget that there is still another set of problems which may turn out to be as influential as any in determining the issue between peace and war. These are the problems besetting the free world internally. The menace of Soviet imperialism so overshadows our lives that we often lose sight of the dangers to peace caused on our own side of the Iron Curtain by ancient feuds, national aspirations, economic misery and the struggle to achieve or maintain human rights. These are the problems about which books--rather than headlines--are written. Yet they are involved in Charter revision, as will appear from the following discussion of certain real and false issues relevant to the question whether we should seek to amend the Charter.

III. REAL ISSUES AND FALSE ONES

1. Three real issues of substantial importance are selected for discussion here because they characterize three types of problems which would confront us in the course of a revision conference:

a. Disarmament. A major cold war issue, since weapons of mutual annihilation are in the hands of both sides.

b. Domestic Jurisdiction. A major issue within the free world, embittering vast sections of it in connection with the "colonial" issue and evoking controversy at each session of the General Assembly.

c. Membership. In one sense a cold war issue, yet more fundamentally also involving differences in basic attitudes within the free world regarding the universal or selective character of the organization.

It is highly doubtful, to say the least, that a conference could contribute toward a solution of any of these problems.

The disarmament issue is not in its present state of deadlock by reason of any substantive defects in the Charter or because of the lack of a forum in which to negotiate. The United States has repeatedly made clear in the United Nations that any valid disarmament plan requires a verified disclosure of armaments, that is, a strict system of inspection. Agreement on disarmament is blocked by the Soviet Union's refusal either to accept the United Nations plan, or to come forward with an effective and safe plan of its own. The fact is, of course, that the Soviet Union must choose between the Iron Curtain and disarmament, and chooses the Iron Curtain.

It may be that persistent search by us, or those allied with us, might produce some new and practicable formula for disarmament. For example, it has been suggested that, even though the chance of Soviet acceptance is extremely slight, we should lay out a specific program of what we mean by "foolproof" inspection and effective enforcement, and say unequivocally that, if the Soviets agree, we are prepared to go through with it. Such a plan would be embodied in a treaty with atomic disclosure in stages.

However, it should be remembered in this connection that one of the reasons assigned by the Soviets for rejecting the plan which the United States has already advanced in the United Nations is that it provides for the disclosure of atomic armaments by stages. Some substitute for this would apparently therefore be necessary. Regardless of whether this might be possible, it seems clear that a Charter revision conference--whether for show or for showdown--would be a poor place indeed in which to try to negotiate such a treaty. And it seems even more unlikely that the projected conference would lead to a Soviet agreement to revise the Charter in such a way that the United Nations would be free to enact a genuine disarmament plan.

Some may feel that this is a defeatist conclusion, or that is assumes too much knowledge of Soviet motivation. We may at least agree that if we do indeed have some sound new plan to put forward there are certain distinct advantages in doing so in the United Nations, where we could constantly inform and consult with our colleagues.

As for the issue of domestic jurisdiction, there is no doubt that it is constantly becoming more vexatious, if not explosive. All the various forms in which the problem of "colonialism" presents itself are involved in it. Many Powers contend that under the Charter the United Nations has no right to discuss or decide such issues. When we interpret the organic law of any social institution, a general grant of authority must be read in the light of general limitations expressed in the same document. The United Nations Charter is of course no exception.^[iii] However, it is not really necessary for the purpose of this analysis to consider whether "discussion" constitutes "intervention," or whether Article 10 is subordinate to Article 2 (7), or vice versa. The question here is whether it is wise or practicable to attempt to clarify the matter by some new Charter formulation.

Our own national experience shows that the sensitive issues of "delegated" power versus "reserved" power are difficult to codify. The difficulty has led to bloody civil war in this country; it has never led to the calling of a new constitutional convention. Attempts to reformulate Article 2 (7) or Article 10, or to try to spell out their relationship, would almost certainly lead the conference into argument over specific issues, such as Morocco, Tunisia, the Indians in South Africa, and many other perennial sources of bitter strife in the General Assembly. The result would very probably either be retention of the present general language or substitution of new but equally broad texts. All the while, the Soviet representatives would be cheerfully applying the old dictum of Stalin: "The national movements for the freeing of the oppressed countries from the imperialist yoke contain unexhausted revolutionary possibilities."

Our third example, the standing deadlock in the United Nations on the question of admitting new members, is a famous example of the Soviet abuse of the veto; it has accounted for 27 out of the total of 56 Soviet vetoes. On the other hand, even though we have said that for our part we would abide by a majority decision, our position has lost some virtue by reason of our more recent indications that we might, if necessary (and if constitutional), use our veto on the related issue of Chinese Communist representation.

Assuming, however, that we are in fact willing to make a legal commitment not to use the veto on membership questions (or on Chinese or other representation questions), an amendment making the veto inapplicable to membership applications would be a good step forward. The difficulty, of course, is that the Soviet Government would refuse to agree to such an amendment for just the same reasons they have refused to join in a voluntary undertaking not to use their veto on new members.

Moreover, even if the Soviet Government should change its approach, the Government of the Republic of China would probably refuse to surrender its veto power on this question. Indeed, the Chinese delegate to the Security Council has even asserted the right to veto a Security Council invitation to the Chinese Communist regime to give testimony before the Council. Unless the Chinese representation issue has been "solved" prior to the proposed review conference, the membership question would involve the members in a vexing debate on the already much-debated problem of "who represents China."

In addition, there is the problem of eligibility for membership raised by Article 4 of the Charter.^[iv] This involves a divergence of view within the free world between those who favor universality and those who regard membership in the United Nations as something like a reward for meritorious conduct. To a large extent, the individual approach to this question is conditioned by one's attitude toward Soviet membership in the United Nations. Those who favor "kicking the Russians out" oppose admitting Soviet satellites, and indeed are inclined to regard it as a moral issue; they often attach the label of "appeasement" to those who disagree with them.

On the other hand, many adhere to the view that the obligations of United Nations membership should be universal and mandatory. On this theory, every state is born into the United Nations, so to speak, just as an individual is born into citizenship and cannot voluntarily free himself of the citizen's duties. In this aspect, then, the membership question involves a rather basic difference of view within the free world itself.^[v] This is sometimes lost sight of because of the more newsworthy impact of the Soviet vetoes. It would be wise to delay taking up the membership question unless a consensus of opinion had been reached on this aspect of it, particularly since it is reasonably certain that the "veto amendment" would not clear either the Soviet or the Chinese barrier in any event.

2. Unlike the foregoing real issues, questions of structure and procedure such as those involving the veto or changes in voting methods may be regarded either as false issues, or as real issues which are often given false weight in the balance of judgments about the United Nations. But they stand high, of course, on the priority list of those who consider that the tensions and perils of the present day are due largely to the structural character of the United Nations itself, instead of existing in spite of or regardless of any merits or defects in that structure.

Conflicting views are held as to what is wrong with the structure. Some say: "The United Nations is nothing but a debating society; we must put some legal teeth in it." Others vehemently disagree: "We must recapture our lost sovereignty from this superstate." Or, as Senator Bricker has put it: The United Nations has "an insatiable lust for power."^[vi] It is sometimes a bit confusing when some who feel this way nevertheless call for the abolition of the veto. The explanation of the contradiction, of course, is that the Soviet abuse of the veto arouses fear and anger and it is easy to direct these emotions against the forum in which the acts take place.

Seen from this perspective, the Soviet abuse of the veto is "proof" that the United Nations is hopeless and helpless to provide security. Hence, the elimination of the veto becomes the way to assure our security, or at least to enhance it. A celebrated statement of this point of view was made by the late Senator Robert A. Taft: "I believe we should remain a member, and do our best to amend the Charter so that action is based on international law and the adjudication of an impartial tribunal, and the veto power eliminated."^[vii]

Nevertheless, the practical difficulty of applying this concept of "international law" to specific situations may be found in the opposition which some Senators expressed to the North Atlantic Treaty. Indeed, Senator Taft himself voted against the Treaty primarily on the ground that he felt it deprived us of the freedom of decision (i.e. the "veto") whether to go to war or not. And this, even though Article 5 of the Treaty had been watered down, at the insistence of the Senate, so as to create no legal obligation whatever except to take such action as we "deem necessary."

On the other side stand those who see the Soviet abuse of the veto as a symptom of her contempt for the processes of international coöperation. By this diagnosis, if the Soviet Government were willing to agree to Charter amendments restricting or eliminating the veto, it would not be guilty of having abused the veto in the first place; and if it ceased to abuse the veto, it would be because it had abandoned at least some of its policies of expansion and obstruction. It is in this sense that the veto may be called a "false issue"--one which should not decisively affect our position for or against a conference to revise the Charter.

Of course, this conclusion would not be valid if the objective were merely to have a "propaganda" conference, dramatizing Soviet unwillingness to restrict the veto, thus illuminating our own higher moral position. Whether the procedure would, in fact, further our national interest depends upon some complex questions. For example, would the American people and Congress really be willing to surrender our veto in cases involving a commitment of our troops or resources to warlike action? Or would our major partners in the free world give up their veto on matters affecting their "colonial" interests? Or, again, would the Soviet rejection of the amendment increase tension more than it would instill resolute firmness on our side?

If the answer to any of these questions is "probably no," then a propaganda conference for the purpose of talking about the veto might do more harm than good. Specifically, in seeking the answer to the first of them, we should remember that on a question surely much less vital than the use of our armed forces, the Senate insisted that we retain the right to veto applications for new membership in NATO.

"New machinery, more law" is the formula of those who feel confident that men can be inspired to develop institutions with authority and power to keep the peace. "More compliance with the law we have" is the slogan of those who believe that the present crisis is due to the conduct of the Soviets rather than to faults in the international machinery. Few would deny the perils which arise from Soviet principles and policies or our necessity to take every sensible step to improve our security, aware, as Professor Oppenheimer wrote in these pages, that "the atomic clock ticks faster and faster." However, as everyone knows, the really violent arguments are among those who want to use different means to reach the same objective.

Formulas for radical changes of machinery, elaborations of new procedures, plans for super-governments and the like often rest on an unconscious assumption that the more explicit the obligation, the more it is honored, and that the more parts the machine has the more smoothly it runs. After all, it is argued, international relationships involve the same human factors that personal relationships do. Aggression is like any neighborhood armed robbery, only more so. The Big Lie, used as a matter of national policy, is like any other kind of lie, only more so. The law book, the court and the police force tamed the Wild West; the same institutions will tame the wilder "East." This overlooks the fact that the very scale of the challenge to law and order determines the practical means for dealing with it.

We do not face a band of cattle rustlers. Something close to one-quarter of the human race, led by despots, defies the Charter. This is not to say that they will necessarily always stay that way; but it does say that a mere reformulation of the obligation will not change the nature either of the revolt or of the threat.

Moreover, whether we like it or not--and we do not--another vast group, perhaps half the human race, does not regard this fact as a problem of any real concern to themselves. Some are more worried about where the next meal is coming from than where the next aggression is coming from. Others are seething in revolutionary ferment. Others rationalize their objections to Communism and equate them to their objections to capitalism. Still others fear their next-door neighbors in the free world more than the seemingly distant fires of Communism.

Given the vast sweep and movement of a world where such forces have play, it requires a truly exceptional degree of self-assurance to believe that some particular code of international law which one has written out, or a certain kind of machinery which one has devised, or some ingenious set of procedures which one has invented, is just the thing to save mankind. A sounder historical perspective shows that the tides of human events run in less institutional channels. Far from belittling the vital importance of institutions in the affairs of men, this is merely to accord them the respect of a fair evaluation.

One illustration is worth a dozen homilies. For some years there has been an item on the agenda of the General Assembly called "The Question of Defining Aggression." Our government has consistently opposed the project, for reasons set forth by the President of the United States in a Report to the Congress:

The United States and some other delegations advocated that the Assembly should discontinue its attempts at definition as no satisfactory one could be found. A definition which enumerated all possible acts of aggression would necessarily be incomplete and could thus be harmful; conversely, an abstract and general formula would be too vague to prove useful. Therefore, those states considered it preferable to leave the United Nations organs, which are responsible for determining an aggressor, full discretion to consider all circumstances of each case.^[viii]

Even though experience thus has shown the impossibility of making a complete and safe definition of "aggression," a resolution which was introduced by 19 Senators in the first session of the 81st Congress jumps the big hurdle by proposing a world federation "with defined and limited powers adequate to preserve peace and prevent aggression. . . ."

Can one hope to define powers which are "adequate" to achieve an undefinable objective? And how limited could powers be which are "adequate to preserve peace" in a world where peace is threatened by atomic armaments and massed armies, by the Iron Curtain and forced labor, by subversion and terror? The existence of these very evils is what has led Soviet representatives to reject, at every step of the way, all suggestions looking to broadening the Charter. In particular, they revile proposals to limit the veto, even on a voluntary basis, as a "capitalist" plot against peace.

IV. CONCLUSIONS

Any organization--the United Nations, NATO or a projected Utopia--has need of powerful symbolism; but symbolism is a method, not an objective. Our main object should be to keep and improve the realities that are already at our disposal.

The United Nations is the outstanding agency in which men and governments can join their efforts to achieve their objective of enforcing peace. It should be buttressed by regional and other defense organizations and by the increasing power of the United States in its support.

Conciliation functions, particularly in respect of disputes within the free world, are important. They can disinfect the wounds inflicted in the course of disputes between persons, tribes or nations. We must keep studying how to make more effective our methods in attempting to settle international quarrels. It also is of the utmost importance that we have procedures for coöperation in economic, health and welfare activities. The Specialized Agencies are doing some of the most pressing work of the world--building the foundations of freedom.

So long as the cold war continues, it is good to have this standing international conference for the continuous exploration of specific issues. If it did not already exist, we would hail its creation. And in case of aggression, it would serve as a rallying ground for those who were willing to fight the aggressor--with even more general participation, let us hope, than was the case in Korea. Korea has taught many lessons in the command, logistics and other aspects of operating a collective defense.

Some of the new formulas that are suggested for amending the Charter involve amendments to our own Constitution also. It would seem highly desirable to settle the American attitude in these matters before talking about putting issues of such gravity into international debate. For example, it would be awkward for the American delegation to a Charter conference to be confronted with the support which the Soviet delegation might well give to the Bricker Amendment. It would be far better if, prior to a conference, the 27 Senators who want to explore an Atlantic Union and the 19 who favor a world federation with powers "adequate to preserve peace" should publicly state their opposition to the Bricker Amendment, which is clearly designed to make their proposals impossible.

Flexibility is the life blood that sustains and perpetuates constitutions. Concepts as to the nature of the foundations of peace and freedom change. This underlines the advisability of letting the United Nations Charter evolve, little by little, case by case. The general principles will remain, as they should do in any constitutional system. The practice will change to suit new needs and meet new emergencies.

An example of how procedure may be improved was the "Uniting for Peace" Resolution adopted November 3, 1950, which put the veto-free General Assembly in a position to act in emergencies where the Security Council found itself veto-bound. Recommendations of the Assembly in any case have a greater political and moral effect than was foreseen at San Francisco. Their influence can be measured by the heat which Assembly debates engender.

Meanwhile it is essential to counter Communist imperialism by strengthening regional and other defensive coalitions, and by making more effective our own economic and military power. We should prove by our diplomacy that we do this only because of the tensions which are both the cause and effect of armament, and that we are hoping and striving to end them. The need, above all, is for intelligent "multilateral diplomacy." In the last analysis, the test of survival will be whether we are able to exert a wise and informed leadership of freedom's coalition in the strategy of peace.

^[i] The Charter was ratified by the U.S. Senate on July 28, 1945, by a vote of 89 to 2.

^[ii] Dr. Leo Pasvolsky, University of Illinois, May 2, 1950.

^[iii] Article 2, Paragraph 7, reads: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."

Article 10 reads: "The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters."

^[iv] Article 4 of the Charter reads: "1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations."

^[v] Within the two extremes are the conflicting attitudes toward the Soviet "package proposal" for the simultaneous admission of most of the present applicants, including all those sponsored by the Soviet Government. The split in the free world on this issue was shown at the Sixth General Assembly in 1952, when the vote on the Soviet proposal was 22 in favor, 21 opposed and 16 abstentions (passage being prevented by the two-thirds rule).

^[vi] The New York Times, May 18, 1952.

^[vii] The New York Times, June 2, 1952.

^[viii] "U.S. Participation in the U.N.;" Report for 1951, p. 253 (italics added).