The United Nations Security Council
Author(s): Alfred P. Fernbach
Source: Virginia Law Review , Dec., 1945, Vol. 32, No. 1 (Dec., 1945), pp. 114-146
Published by: Virginia Law Review
Stable URL: http://www.jstor.com/stable/1068432
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114 VIRGINIA LAW REVIE:W [Vol. 32
THE UNITED NATIONS SECURITY -COUNCIL
I
O N October 24, 1945, with the deposit of the necessary 29
ratifications, including those of the five major powers, the
Charter of the United Nations Organization came into force.
The essential question everywhere raised is whether, in the light
of the wide range of current international controversies and the
terrifying development of weapons of aggression, such as the
atomic bomb, the Charter will effectively fulfill its objectives of
maintaining international peace and security and promoting international cooperation.
There appears to be a disturbing paradox between the relatively smooth preparations for establishing the United Nations
Organization and the present difficulty in attaining agreement on
the terms of the peace. This apparent paradox was typified by
two parallel conferences held in London during September and
October of 1945. The conference of foreign ministers of the
great powers, which received widespread publicity, failed to ful-
fill its objectives of preparing peace treaties for the lesser Axis
powers and for Italy. The sessions of the Executive Committee
of the Preparatory Commission of the United Nations Organization received much less public attention, but the Committee
was able to reconcile conflicting views and, where necessary, arrange compromises on several important matters. About 90 per
cent of its numerous decisions were unanimous. It achieved its
objective of laying the groundwork for the calling, by the full
Preparatory Commission, of the first meeting of the Assembly
of the Organization, tentatively set for the first part of January,
1946.
Some gloomy observers dismissed the achievements of the Executive Committee of the Preparatory Commission as unimpor-
tant, since its work was classified as technical and procedural.
The trend of our times, they held, was marked by the failure of
the conference of foreign ministers, and they doubted the ability
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1945] THE UNITED NA4TIONS SECURITY COUNCIL 115
of the big powers, as sovereign states, ever to reach th
tory agreements on political matters vital to their con
of action. However, an historical perspective may dispel much of
the gloom. The failure of the conference of foreign ministers
was not irreparable, and it should serve to teach several vital lessons. First of all, that conference made clear the existence of
divergencies of view over fundamental concepts. These divergencies must be frankly faced, and common language based on
common values must and can be attained. This view was expressed by President Truman in his Navy Day Address in New
York, October 27, 1945, when he said: "Differences of the kind
that exist today among nations that fought together * * *
are not hopeless or irreconcilable. There are no conflicts of interest among the victorious powers so deeply rooted that they
cannot be resolved." The failure of the conference also taught us
that a satisfactory peace is not a simple matter to be secured at
one stroke, and that proper preparation for an important conference is essential to its success. Finally, it became strikingly clear
that the great powers must find common solutions to their prob-
lems and thus maintain unity of action-the terrifying price of
failure compels continued agreement.
It is common knowledge that the unity of a war alliance becomes fragile in the post-war period, but that at least a temporary peace together with necessary adjustments can usually be
arranged by the victorious powers. Statesmen have usually been
able to write peace terms, even if based on expediency and un-
sound premises. The great difficulty in the past has always been
the attainment of agreement to establish an organization for in-
ternational cooperation to maintain the peace-that is, to settle
future disputes peaceably and to enforce such settlements collectively. Viewed in the light of these facts, the failure of the ccnference of foreign ministers is discouraging but not disheartening, and the success already achieved in establishing the United
Nations Organization is a most gratifying and encouraging sign
of our times.
II
Peace settlements are older than recorded history, but permanent international organization for cooperation of the peoples of
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116 VIRGINIA LAWV REVIEWV [Vol. 32
the world in handling common problems
ment. Although for centuries the quest
produced a great variety of interesting p
tion or international federation, such as
bois, William Penn, Rousseau, Bentham a
velopment of effective and enduring int
is less than a century old.
The stimulus for this development arose not from the schemes
of utopians but from the growing cultural and economic interdependence of the peoples of the world. The rapid spread of an
industrial civilization in the nineteenth century, with greater facility of communication and transportation, enabled many individuals with common interests to exchange ideas and to work
together for common ends. It confronted national states with a
growing number of problems which could be handled best through
international cooperation in spite of national boundaries and national sovereignty. The nineteenth century was marked by an
increasing number of public and private international conferences
and congresses. These private organizations often preceded the
development of governmental action in the same field. In the
century prior to 1914 more than 700 private international conferences were held, and by 1939 more than 700 private international organizations, such as the Red Cross, Rotary, the International Chamber of Commerce, and church groups, were in existence.
The first governmental international organizations, whose existence we take for granted today, were established in the field
of communications with such agencies as the International Telegraphic Union, organized in 1865, and the Universal Postal Union, started in 1874. Similar agencies in other so-called technical fields were established, such as the Copyright Union, the International Penal and Penitentiary Commission, and the International Bureau of Weights and Measures. These organizations
combined the old international conference with the establishment
of a permanent headquarters and staff charged with the task of
carrying out the decisions made at the periodic conferences.
While there was a tremendous increase in the voluntary use of
international conciliation and arbitration during the nineteenth
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19451 THE UNITED NATIONS SECURITY COUNCIL 117
century, no effective permanent organization dedica
peaceful settlement of disputes was established prior
The Hague Conference of 1899 was called to consider measures
to bring about disarmament, but turned to the problem of establishing international machinery for the peaceful settlement of
disputes, in which field some advances were made. The First
World War resulted in the establishment of the League of Nations, the first permanent international organization charged with
the function of promoting international cooperation in a wide
number of fields and with the task of checking international dis-
putes. The League of Nations achieved some measure of success, especially in the promotion of international social and economic cooperation, but when confronted with major tests of
strength it lacked sufficient power and support to maintain international peace and security.
The establishment of the League of Nations reflected, in part,
the change in attitude toward the phenomenon of war. Prior to
the first World War each country had a recognized right to engage in war to settle international disputes or to obtain its objectives. The tremendous cost in lives and property of that first total war changed the popular attitude from glorification of, or at
least acquiescence in, war to hate of war and condemnation of
those persons and states guilty of starting war. This naturally
resulted in an almost universal desire to prevent its recurrence.
The League of Nations did not outlaw war in all circumstances
but it did establish permanent machinery to keep the peace. The
Kellogg-Briand Pact of 1928 made the use of aggressive war in
international relations illegal but failed to provide any means of
making this doctrine effective. During the Second World War
the attitude widely held was that the Axis powers, by starting
the wvar, had committed a crime against mankind. There is now
no popular glorification of war; war, especially since the development of atomic weapons, is recognized as threatening the very
existence of our civilization. It is now commonly understood
that future wars will be so costly that even the victorious may
suffer catastrophically. Furthermore, today we are engaged in
the revolutionary process of punishing individual leaders of the
Axis countries for the crime of perpetrating war upon society.
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118 VIRGINIA LAW REVIEW [Vol. 32
All this adds up to a remarkable ch
toward war in recent decades.
It is this new consciousness of the disaster of war more than
any other single factor which in all the United Nations impels
people and statesmen alike to make international cooperation
work. The Charter of the United Nations represents an attempt
to establish an organization capable of succeeding where the
League of Nations failed. It is the product of the effort to transform a successful war alliance into permanent machinery for
peaceful cooperation and security. The Declaration by the United
Nations, signed by 26 nations at Washington on January 1, 1942,
marked the birth of an alliance which, in the realization that the
war could be won only by joint efforts, produced the highest
degree of cooperation-military, economic and political-ever
achieved in modern times by a number of diverse sovereign states.
At the Moscow Conference, October, 1943, the principal allied powers of the United Nations-the United Kingdom, the
Soviet Union, China and the United States-jointly declared
"that their united action, pledged for the prosecution of the war
against their respective enemies, will be continued for the organ-
ization and maintenance of peace and security." They further
recognized "the necessity of establishing at the earliest practicable date a general international organization, based on the prin-
ciple of the sovereign equality of all peace-loving states, large
or small, for the maintenance of international peace and security.'
When the four signatories to the Moscow Declaration had
reached sufficient agreement on the nature of the proposed permanent organization, through diplomatic exchange of notes, their
representatives met at Dumbarton Oaks in the late summer of
1944 and prepared a draft charter. The Dumbarton Oaks Proposals, together with the Yalta voting formula, reflected the position of the great powers and served as the basis for discussion
at the San Francisco Conference, convened on April 25, 1945.
Before the delegates of the 47 United Nations met at San Francisco for what was officially called the United Nations Conference on International Organization, there was some doubt that the
1. DECLARATION OF THE FOUR NATIONS ON GENERAL SECUlITY, Moscow,
Nov. 1, 1943.
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1945] THE UNITED NATIONS SECURITY COUNCIL 119
"Big Four" who were sponsors of the conference would permit
amendments to their proposals. These doubts were soon dispelled,
and at the invitation of the sponsors several hundred amendments
to the Dumbarton Oaks Proposals were submitted. The pressure of widespread public discussion and criticism encouraged
the sponsoring powers themselves to submit a number of amend-
ments.2 All amendments were dispatched to the proper commissions and committees of the conference where they received full
discussion and considerationA While the Dumbarton Oaks Proposals were maintained as the core of the Charter, many suggestions were adopted which filled in gaps and liberalized these pro-
posals at many points.4 The Charter which emerged after nine
2. Amendments Offered to Duinbarton Oaks Proposal, XII DEPARTMZNT OF
STATE BuLL. No. 306, 851 (1945).
3. The actual work of the conference was carried on by its twelve committees grouped under commissions as follows:
Commission I: General Provisions.
Committee I/I: Preamble, Purposes, and Principles.
Committee I/2: Membership, Amendment, and Secretariat.
Commission II: General Assembly.
Committee II/I: Structure and Procedures.
Committee 11/2: Political and Security Functions.
Committee 11/3: Economic and Social Cooperation.
Committee II/4: Trusteeship System.
Commission III: Security Council.
Committee III/1: Structure and Procedures.
Committee III/2: Peaceful Settlements.
Committee III/3: Enforcement Arrangements.
Committee III/4: Regional Arrangements.
Commission IV: Judicial Organization.
Committee IV/1: International Court of Justice.
Committee IV/2: Legal Problems.
The five major powers, France having been added to the group, met informally throughout the conference to insure unanimity among them with respect to all proposed changes of and additions to the Dumbarton Oaks Proposals.
4. Among the amendments which made the Charter a more liberal document than the Dumbarton Oaks Proposals were provisions giving the Security Council greater military authority, expanding the powers of the General
Assembly, establishing the trusteeship system for dependent peoples, integrating bilateral and regional security agreements into the system of collective
security, increasing the prestige and functions of the Economic and Social
Council, and broadening the objectives of the Organization. An excellent
preamble was added, and the Organization was committed to the principles of
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120 VIRGINIA LAWT REVIEW [Vol. 32
weeks of arduous work and compromise is more than twice as
long as the Dumbarton Oaks Proposals. It should especially be
noted that no other important international document was subject to such long and wide public and official discussion, and that
it is the product of the democratic procedures followed during its
drafting.
It is perhaps remarkable that in spite of deep divergencies
among the 50 nations eventually represented, it was possible to
reach a very wide area of agreement on highly controversial issues. These divergencies were the product of widely differing
economic and social systems, political philosophy and traditions,
and historical development. These differences among the great
powers were expressed in the opening addresses to the conference. President Truman stressed the responsibility of the great
powers not to use force except in defense of law, and insisted
that the great powers must be good neighbors, serving rather
than dominating the small states. The chairman of the Chinese
delegation, Mr. T. V. Soong, made a strong plea for legal order
and indicated that China was ready to abandon some of its sov-
eignty to obtain this necessary objective. Mr. Eden, speaking
on behalf of the United Kingdom, pointed out that the great
powers could make a twofold contribution by supporting international organization and by setting up standards of international
conduct and observing them in their relations with other states.
The chairman of the delegation of the Soviet Union, Mr. Molotov,
urged that the new organization be vested with effective authority. He emphasized the failure of the League of Nations to prevent the Second World War, and pointed out the need in the future for strong machinery backed by military force adequate to
check promptly any aggression. He indicated that the great powers, which had borne the burdens of war, must provide the leadership in the post-war period.
Although the main tasks of the United Nations Conference
on International Organization were technical, in their deliberations the delegates were never removed from political realities.
Such issues as the seating of an Argentine delegation and the pojustice and international law, a commitment conspicuously lacking in the Dumbarton Oaks Proposals.
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1945] THE UANITED NATIONS SECURITY COUNCIL 121
sition of Poland, not represented at the conference, relate
ical reality directly to the work of the conference. The
over the French position in Syria and Lebanon, which aros
ing the height of the conference, created a political si
against which the delegates measured the proposed provis
the Charter.
The drafting of the Charter necessarily involved compromises
short of perfection. If one ignores the realities of our day, the
divergencies of views which still exist among peoples, and the
distrust, nationalism, and uneven evolution which is the world's
historical heritage, it is perhaps easy to draft a more perfect document based on sounder political theories than is the United Nations Charter. The Charter which emerged from the conference
reflects the above divergencies; it probably reflects, as well, the
degree of unity obtainable in the spring of 1945. None of the
delegates viewed the product of their efforts as perfect, but to
them the Charter represented a sincere attempt to obtain a synthesis of the ideal with the current reality. Consequently, ade-
quate provision was made for amending the Charter, including
a provision for the holding of a general conference within ten
years to review its operation.5 In other words, the delegates
hoped that the experience of the next few years would lead to re-
visions and improvements in the United Nations Organization.
The Organization now being established is generally regarded as
a marked improvement over the League of Nations, and by many
it is viewed, with more or less impatience, as a further step toward the inevitable development of effective world government.
III
In addition to tne original members, the United Nations Or
ganization will be open to all peace-loving states which accept
the obligations contained in the Charter and which are able an
willing to carry out these obligations. New members will be a
nitted by the General Assembly upon the recommendation of th
Security Council.6 The obligations referred to are contained i
Chapter I of the Charter, which chapter is concerned with th
5. Article 109 of Charter.
6. Article 4 of Charter.
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122 VIRGINIA LAW REVIEW [Vol. 32
purposes and principles of the Organization. These prescribe a
code of international behavior under which all member states
must settle their disputes peacefully and refrain from the threat
or use of force in their relations with other states except as such
threat or use of force is prescribed according to the Charter. In
addition, all members are obligated to "give the United Nations
every assistance in any action it takes in accordance with the present charter, and shall refrain from giving assistance to any state
against which the United Nations is taking preventative or enforcement action." 7 These obligations prevent the neutrality of
member states when the Organization acts in any dispute.
Six major agencies will constitute the structure of the Organi-
zation. These are the General Assembly, the Security Council,
the International Court of Justice, the Economic and Social
Council, the Trusteeship Council, and the Secretariat. The Secretariat, headed by a Secretary-General, will constitute the permanent staff of the Organization. The Trusteeship Council is assigned certain functions with respect to such dependent areas
and peoples as are brought under its authority. Much importance
is attached to the Economic and Social Council, since this body
will coordinate the work of existing and new agencies concerned
with international social and economic problems, such as the
World Monetary Fund and the Food and Agriculture Organiza-
tion. Since economic and social matters are so directly related
to the welfare of the people and to the impulse toward war, it is
hoped that the work of the Council will aid in finding constructive solutions to the problems under its jurisdiction. The International Court of Justice provided for in the Charter is to be lo-
cated at the Hague. Its Statute, which is an integral part of the
Charter, provides for a court modelled essentially on the successful Permanent Court of International Justice. All members of
the United Nations Organization are automatically members of
the Court, and other states may join under certain conditions,
There was considerable support for providing the new Court
with compulsory jurisdiction over certain international disputes
of a legal nature. This was defeated, and, instead, an "optional
clause" was adopted similar to that in the Statute of the Perma7. Article 2, ? 5, of Charter.
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1943J THE UNITED NATIONS SECURITY COUNCIL 123
ienlit Court of International Justice. Like its predeces
ternational Court of Justice will have authority to render advisory opinions.
The two most important agencies of the Organization will be
the General Assembly and the Security Council. Their powers
and organization, and their relationship to each other, establish
the general nature of the whole Organization. While the Covenant of the League of Nations gave the League Council and Assembly overlapping and roughly concurrent jurisdiction, neither
body was vested with authority over the member states. All that
the League agencies could do was to recommend a common
course of action to the members. In both the Council and Assembly, with one important exception, decisions on matters of
policy were made by unanimous vote.
In the United Nations Organization there is a sharp division
of functions between the Security Council and the General Assembly. It will be difficult for the Security Council to take on
the aspects of an executive agency for the whole Organization,
as the Council of the League of Nations did in such large measure, for its field of activity is confined to the important task of
maintaining international peace and security. Other functions
of the United Nations Organization are only indirectly related
to the tasks of the Security Council. Thus its function is essentially negative-to prevent future wars or threats to the peace.
By contrast, the General Assembly directly or through the Economic and Security Council is charged with broad functions in
fulfilling the constructive objectives of the Charter. It is to protmote international cooperation in social, economic, cultural, edu-
cational and health fields, and to assist in the realization of hu-
man rights and fundamental freedoms for individuals throughout the world, without distinction as to sex, race, religion or language. It is to promote full employment, higher living standards, and conditions of social and economic progress, and to coordinate the activities of specialized international agencies. It
is charged with the task of promoting the development and codification of international law. It may deal with matters affecting
the trusteeship of peoples in dependent areas. It "may consider
the general principles of cooperation in the maintenance of inter-
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124 VIRGINIA LAW REVIEW [Vol. 32
national peace and security, including the principles governing
disarmament and the regulation of armaments, and may make
recommendations with regard to such principles to the members
or to the Security Council or to both." 8 It may also discuss any
questions relating to the maintenance of peace and security
brought before it by any member or by any non-member state, or
by the Security Council, and may make recommendations thereon
provided the Security Council is not exercising its functions with
respect to the same matter. In fact, the Assembly may discuss,
with the above exception in relation to the Security Council, any
question or any matters within the scope of the Charter,9 thus
acting, in Senator Vandenberg's words, as a "town meeting of
the world" in which public opinion can be effectively focused. It
will also perform important functions of int ernal housekeeping.
The General Assembly will be composed of all the member states
on the basis of "sovereign equality," that is, each with one vote.
Votes on important questions are to be carried by a two-thirds
majority, and on lesser matters by a simple majority, of those
members present and voting. However, the powers of the General Assembly are not substantially greater than those of the Assembly of the League of Nations. It may investigate, receive re
ports, discuss, and recommend action. It must create the "conditions .of stability and well-being" by voluntary cooperation.
The General Assembly will follow a wise course if it chooses
for its first tasks the promotion of international cooperation in
fields where success is highly probable, for this will help to es-
tablish its prestige. Essential to the welfare of the whole Organization is maintenance of widespread public support. Therefore, the Assembly ought also to choose to promote projects
which are of great concern to large masses of people. Finally the
Assembly by its actions can if it desires, contribute to the unity
of the big powers. The more successful the Assembly and the
agencies affiliated to it are in the performance of their tasks, the
greater will be the constructive atmosphere of peace and cooperation. Correspondingly, there should be less distrust among
nations and fewer serious international disputes requiring action
by the Security Council.
8. Article 11, ? 1, of Charter.
9. Article 10 of Charter.
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1945] THE UNITED NATIONS SECURITY COUNCIL 125
IV
Yet the central and fundamental task of the United Nations
Organization is to maintain international peace and security.
Success on this score will justify the existence of the Organization whatever its record may be in other fields, while serious failure therein, despite its other successes, will condemn the Organization as thoroughly as similar failure condenmed its predecessor. The responsibility for maintaining international peace and
security is placed by the Charter solely in the Security Council.
Consequently its organization and functions should be carefully
examined with a view to determining, insofar as is possible, the
conditions likely to bring success or failure to its efforts.
Chapters V, VI, VII and VIII deal specifically with the orgailization and functions of the Security Council. To be able to
act with the promptness now recognized as necessary to check
aggression, the Council, under the Dumbarton Oaks Proposals,
was limited to eleven members. The five major powers-the
United States, the Soviet Union, the United Kingdom, France
and China-are to have permanent seats. The six non-permanient members are to be elected by the General Assembly for a
term of two years, three retiring each year. A retiring member
will not be eligible for immediate re-election.
The Dumbarton Oaks Conference failed to arrive at any agree-
nient on the crucial matter of voting procedures in the Security
Council. A formula was finally worked out at the Yalta Conference (February, 1945) between the United States, the United
Kingdom, and the Soviet Union, and this served as the basis for
discussion at San Francisco. The Yalta formula provided that
each member of the Security Council should have one vote, and
that decisions on procedural matters should be made by the affirmative vote of any seven members. Decisions of the Council
on all other matters (substantive matters) should be made by the
affirmative vote of seven members, including the concurring votes
of the five permanent members. However, no member of the
Council would participate in its decisions on questions relating
to the peaceful settlement of a dispute to which it is a party. A
Department of State interpretation of this formula, issued on
March 5, made a distinction between the quasi-judicial function
of the Security Council in promoting the pacific settlement of
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126 VIRGINIA LAW REV1EW [Vol. 32
disputes, and the political function o
forcement action for the maintenance of peace and security.
While a major power which is a party to a dispute could not vote
while the Council was performing its quasi-judicial functions, it
could prevent the Council, under the rule requiring unanimity of
the five great powers, from taking enforcement action against it.
This has been called the veto power, since by its dissenting vote a
permanent member of the Council can prevent that body from
acting. It should be noted that under the Yalta formula a permanent member can also veto action aimed at the peaceful settlement of a dispute to which it is not a party, and could prevent
enforcement action for maintaining peace and security in such a
case.10
The supremacy of the five great powers was extended to other
aspects of the Organization on the supposition that the problem
of security extended beyond the settlement of disputes. At many
points action cannot be taken except on recommendation of the
Security Council. Since the matters involved may be considered
to be substantive, and since the Council's definition of procedural
and substantive is itself a substantive matter, the negative vote of
any one of the five permanent members of the Council may block
action. Thus one of the five big powers could use its veto to pre-
vent a state not a member of the United Nations from joining
the International Court of Justice. Since the Assembly appoints
the Secretary-General of the Organization on the nomination of
the Security Council, any one of the five major powers may prevent the nomination of an individual who is regarded by it as
persona non grata. Likewise, the veto may be used to prevent
the admission of new members, and to prevent the expulsion, or
the suspension of rights and privileges, of a member of the Or-
ganization. In addition, under Articles 108 and 109, an amendment to the Charter cannot become effective until it has been rat-
ified by all the permanent members of the Security Council, thus
protecting the special position of the great powers.11
10. XII DZPARTMENT oEL STAin BuLL. No. 298, 394, 396-397 (1945).
11. The proposal of an amendment does not require the unanimous approval
of the five great powers. Although there is no provision in the Charter concerning withdrawal from membership, there was an expressed agreement at
the San Francisco Conference that any state may withdraw if its rights and
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19451 THE UNITED NATIONS SECURITY COUNCIL 127
It was rather generally agreed that in order to maintain the
teamwork which the United Nations developed during the war
and to insure the execution of the security function of the new
Organization, the main reliance would have to be placed on the
great powers whose military might and industrial strength had
been so effective in defeating the Axis. The dominant position
of the five great powers in the Security Council and in the whole
Organization places upon them the greatest share of responsibility
for its successful operation. The relation of the great powers to
the smaller states is an old problem. It confronted the United
States during the drafting of its constitution, and it was an issue
in the formation of the League of Nations. In some of the
original plans for the League, the Council was to be composed
entirely of great powers, but spokesmen for the small nations
finally gained four seats out of the total of nine. The great
powers enjoyed permanent membership in the League Council,
while the seats of the small powers were filled by periodic elections in the Assembly. When the number of non-permanent
members of the League Council was gradually increased to
eleven, the great powers were so outnumbered (and not all the
great powers were League members) that they distrusted the
ability of the Council to handle their affairs. They began to deal
with each other in conferences outside the League framework,
thus weakening the effectiveness of that organization.
On the matter of tenure, the Dumbarton Oaks Proposals fol-
lowed the precedent of the League of Nations by granting permanent seats to the five great powers. Recognition that the main-
tenance of peace and security is the concern of all states led the
major powers to again follow League precedent by providing for
six non-permanent members of the Council, elected by the General
Assembly. Thus the great powers are slightly in the minority.
In one respect the Yalta formula on voting procedure was re-
garded as a step forward from the precedent set by the League o
Nations. The League Council, with one important exception,
obligations under the Charter are changed by an amendment unacceptable to
it, or if a proposed amendment fails to secure the necessary ratifications.
Thus small powers could withdraw from the Organization if any permanent
members of the Security Council persist in the use of the veto power and
thereby block important changes in the Charter.
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128 VIRGINIA LAW REVIEW (Vol. 32
could reach decisions on substantive ma
vote of all the members. Consequently
non-permanent member of the Counci
The Yalta formula removed this veto p
non-permanent members of the Securi
Nations. However, under Article XV of
to a dispute, even a great power, could not vote. If the League
Council found that such a great power had in the course of the
dispute violated its obligations under Article XV, Article XVI
could be invoked and sanctions could be applied against the great
power. This was the course of action taken against Italy in 1935.
Since the unanimity provision covering permanent members of
the Security Council in the Yalta formula prevents the Security
Council from bringing enforcement measures to bear against a
great power which may be a party to a dispute, many observers
and most of the representatives of the smaller states at San Francisco regarded the Yalta formula, in this respect, as a step backward from the experience of the League of Nations.
It is therefore not surprising that the smaller powers at San
Francisco were greatly disturbed by the provisions which established the predominance of the five major powers in the Security
Council, and especially by the big power veto. While generally
recognizing the necessity for maintaining unity of policy and action among the great powers, insofar as possible, the smaller pow-
ers strongly felt that the Yalta voting formula was unfair and
undemocratic. Consequently the most heated debates of the
United Nations Conference at San Francisco involved the position of the great powers. In an effort to redress the balance of
power, a great number of amendments were submitted which had
as their aim the modification of the Yalta formula and the powers, size, and character of the Security Council.
It must be remembered that most of the snmaller powers prize
their sovereignty and express their nationalism as intensely as do
the great powers, and they feel that the latter have no special mo-
nopoly on wisdom in international relations. The Yalta formula
was attacked as discriminatory and contrary to the principle of
sovereign equality. It was argued that since the Security Coun-
cil could take action against the smaller powers but not against
the great powers, the latter were placed above the law, and a direc-
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1945] THE UNITED NATIONS SECURITY COUNCIL 129
torate of the great powers was established. Recognizing that
those who have the major responsibilitity for enforcement action
should not themselves be above the law, the representatives of the
smaller states demanded to know who would check the policemen. Likewise the point was made that a permanent member of
the Security Council, though it might later lose its great power
position, would be able to maintain its special status. Furthermore, if one of the major powers committed aggression or wilfully blocked peaceful settlement of a dispute to which it was not
a party, the net result would be to paralyze the Security Council
and force such disputes to be handled outside the framework of
the United Nations Organization. Several delegates argued that
it is the duty of the Security Council under the Charter to bring
about the peaceful settlement of disputes, and that if one great
power could defeat the will of the remaining Council members
through the use of its veto, that body could not perform its duties.
Some of the amendments submitted at San Francisco proposed
the abandoning of all permanent membership, an increase in the
size of the Council and the paring down of its powers, and the
granting of greater authority over security matters to the Gen-
eral Assembly. Iran suggested that an affirniative vote of eight
members be sufficient for all decisions of the Council, while Egypt
chose the same number but added that the concurring votes of
four of the permanent members should be included in that total
for important decisions. Cuba proposed a voting system similar
to that for the General Assembly, and El Salvador urged that de-
cisions which failed to receive the unanimous approval of the
great powers should be referred to the Assembly for final deciSiOInl.2 Other amendments were concerned with the criteria to
be employed by the General Assembly in electing the non-perma-
nent members. Those states which, because of their substantial
contributions to the winning of the recent war, might be called
"middle powers" claimed that for the successful functioning of
the Security Council it was necessary that their eligibility for elec-
tion as non-permanent members receive special recognition.13
Mr. Evatt, Minister of External Affairs and head of the Aus12. Wilcox, The Yalta Voting Formula (1945) 39 AM. PoL. Sci. REV. 947.
13. Stettinius, Report to the Pr-esident (1945) DEPARTMENT OF STATE PUBLICATION No. 2349, 70.
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130 VIRGINIA LAW REVIEW [Vol. 39
tralian delegation, who often acted as unofficial spokesman for
the smaller powers, reluctantly accepted the veto power of the
permanent members with respect to the Council's enforcement action. However he fought to remove all other matters from the
scope of the big power veto, and submitted an amendment to
abolish the right of a single power to veto decisions of the Council relating to the pacific settlement of disputes. He especially insisted that no member of the Council have the power to prevent
full, democratic discussion of any dispute brought before it.
A more subtle attack on the proposed voting procedures and
powers of the Security Council was contained in amendments
which attempted to define acts of aggression in the Charter. The
Security Council would then have the simple task of applying the
definition in order to designate the aggressor and follow this
with automatic enforcement action. Naturally this would nullify
the great power veto. One of the potent arguments used to defeat these amendments was that it was basically undesirable to
define aggression in advance, for no such formula could be com-
plete and accurate for all occasions. It followed that it would be
wiser to leave the Council with the right to determine the aggressor in the light of the circumstances involved in each case.
As the debate progressed, the great powers did not budge from
their original position that the teamwork which won the war
should be preserved and that, since they must bear the major cost
of enforcement of decisions of the Security Council, they ought
to retain their veto power in that body. It was argued that the
Organization would provide for two extremes of voting methods: the great powers would retain a special position in the Secu-
rity Council, while in the Assembly the vote of each state would
carry the same weight. Since, therefore, the vote of Iceland and
of the United States, or of Costa Rica and of the Soviet Union,
would be of equal weight in the Assembly, despite their great difference in population, size and power, certainly the special voting
rights of the great powers in the Security Council Would be no
more undemocratic than the equality of votes in the Assembly.
During the continuous debate over the voting issue, a number
of serious questions of interpretation arose. Therefore a questionnaire asking for clarification of the proposed voting proce-
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1945] THE UNITED NATIONS SECURITY COUNCIL 131
dure was addressed to the sponsoring states. As the five major
powers drafted their answer, a difference arose among them over
one exceedingly important point. While they were in agreement
that the veto power for permanent members must remain unal-
tered during the stage of peaceful settlement as well as during enforcement proceedings, a question of interpretation emerged as
to whether a iermanent member could prevent consideration and
discussion of a dispute to which it was not a party. If such a
proposition were supported, the right of any member of the
United Nations Organization to bring a dispute to the attention
of the Security Council whould carry little meaning because one
of the great powers might prevent even its consideration and dis-
cussion by that body. Since the Charter grants to the Assembly
the right to consider and discuss a dispute not at the time before
the Security Council, it would seeni illogical that the Security
Council, whose major function is the settlement of disputes, could
be prevented from performing functions at least equal to those
of the Assembly. In an interpretation of the Yalta voting formula, issued by the Department of State on March 24, 1945, the
United States had taken the position that no one member of the
Security Council could prevent deliberation and discussion of a
dispute. 14
China, France and the United Kingdom supported the United
States in this interpretation, but the Soviet Union dissented. This
difference of view created one of the deepest and most prolonged
crises of the Sani Francisco Conference. The Soviet Union interpreted the function of discussion and deliberation as part of
the process of peaceful settlement and therefore as a substantative and not a procedural matter. Their emphasis upon the continued close association of the five great powers seemed to lead
them to regard the Security Council primarily as the body through
14. "It is this Government's understanding that under these voting pro-
cedures there is nothing which could prevent any state from bringing to the
attention of the Security Council any dispute or any situation which it believes
may lead to international friction or may give rise to a dispute. And, furthermore, there is nothing in these provisions which could prevent any party
to such dispute or situation from receiving a hearing before the Council and
having the case discussed. Nor could any of the other members of the Council be prevented from making such observations on the matter as they wish
to make." XII DEPARTMENT or STAT BULL. No. 300, at 479 (1945).
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132 VIRGINIA LAW REVIEW [Vol. 32
which the major powers would take
take place through normal diplomatic
conferences. The Soviet Union undou
dure which might endanger the unity
Council, and it asked the smaller state
who, it claimed, would not abuse the
jor powers expressed the view that a
place in the Security Council, thus m
unnecessary, and that all members o
to discuss any dispute threatening th
security. They held that the veto pow
bers should become effective only at t
makes decisions which commit it to
Finally, a direct plea was made to M
the deadlock by abandoning the Sovi
"the interests of the success of the c
ers then agreed unanimously to thei
questionnaire. The statement lists m
ture which will require a vote of an u
These matters were eventually groupe
of the Charter. Next it is explained
the Security Council could prevent
of a dispute, or the hearing of the par
the statement presents the arguments
of great power unanimity in decisio
ment and enforcement. In addition
cial responsibilities of the great pow
ory was presented as the core of th
this theory is that when the Counci
of a dispute and decides to investiga
tions, its decision may initiate a cha
forcement action. Since beyond the
might become aggravated or the Co
upon a course of action from which it
draw, it is vital that the major powe
through both the stages of pacific s
15. Dean, The San Francisco Conference (
116.
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1945] THE UNITED NATIONS SECURITY COUNCIL 133
If the Council were to take action when there was substantial
disunity among the great powers, an increasingly dangerous split
among them might develop at each step in handling the dispute.'6
The small powers reluctantly accepted the statement and enacted the Yalta formula into the Charter by a very close margin.
The Australian amendment, designed to exclude the veto from
all Council decisions relative to the peaceful settlement of disputes, was defeated on June 12 by a vote of 10 in favor, 20 opposed, and 15 abstaining. On June 13, the Yalta formula was
approved by a vote of 30 to 2, with 15 abstaining. Had these
fifteen voted against the Yalta formula, it would have failed to
obtain the two-thirds vote necessary for adoption at the conference. The lesser powers still have the consolation that under Ar-
ticles 11 and 12, after the Council has decided to take no action
in respect to a dispute, the Assembly may discuss the dispute and
by a two-thirds vote make recommendations concerning it.
While no amendments were adopted which would weaken the
efficiency, power, and prestige of the Security Council, certain
other amendments were accepted. One provided that in the election of non-permanent members of the Council due regard should
be paid "to the contribution of Memlers of the United Nations
to the maintenance of international peace and security and to the
other purposes of the Organization, and also to equitable geographical distribution." 17 Another clarified the right of nonmembers of the Security Council to participate in discussion of a
question before the Council whenever that body considers the interests of the member especially affected. Furthermore, all states
which are parties to a dispute before the Council, including states
not belonging to the Organization, were assured the right to participate in discussion of that dispute.18
The Charter provides that the Security Council "be so organ-
ized as to be able to function continuously," that each member
must be represented at all times at the Organization's headquarters, and that periodic meetings of the Council must be held.
These provisions constitute a marked improvement over those of
18. XII DEPARTMENT OF STATE BULL. No. 311, 1047 (1945).
17. Article 23 of Charter.
18. Articles 31 and 32 of Charter.
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134 VIRGINIA LAW REVIEW [ V ol . 32
the League of Nations whose Council was not organized to
function continuously and speedily. The Council is empowered
to adopt its own rules of procedure and to establish any subsidiary organs which it deems necessary for the performance of its
functions.
It should especially be noted that, in addition to the obligations
laid down in the section of the Charter setting forth its principles, Article 25 binds all members of the Organization "to accept
and carry out the decisions of the Security Council in accordance
with the present Charter." The members of the League of Nations were not similarly obligated, and this fact constituted one
of the greatest weaknesses of that organization. Since the Security Council may merely recommend with respect to the peaceful
settlement of disputes, only its decisions involving enforcement
measures for prevention and suppression of breaches of the
peace have a binding quality.
V
The major task of the Security Council is to procure the peaceful settlement of international disputes. Its functions and powers in this respect are presented in Chapter VI of the Charter.
Paragraph 1 of Article 1 states that one of the purposes of the
United Nations is "to bring about by peaceful means, and in con-
formity with the principles of justice and international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace." Paragraph 3 of Article 2 obligates all members to "settle their international disputes
by peaceful means in such a manner that international peace and
security, and justice., are not endangered." Thus, members are
not bound to settle all their international disputes, but they must
use peaceful methods for settling them, and must follow processes
in conformity with justice and international law.
Under Chapter VI, Article 33, the parties to any dispute, the
continuance of which may endanger the maintenance of international peace and security, are obligated to seek a solution by
peaceful means of their own choice. The methods suggested to
them are negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, or resort to regional agencies and ar-
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19451 THE UNITED NATIONS SECURITY COUNCIL 135
rangements. The Security Council is empowered to call upon
the parties to settle their disputes by these means.
The General Assembly, the Secretary-General and any member of the Organization may bring any dispute or any situation
likely to lead to a dispute to the attention of the Security Council.
If, for the purposes of the dispute, it accepts in advance the obligations of pacific settlement provided for in the Charter, any
state not a member of the Organization may bring a dispute in
which it is involved to the attention of the Council (or the Assembly)." However, on its own authority the Security Council
may investigate any dispute or any situation which might lead to
international friction in order to determine whether the contin-
uiance of the dispute or situation might endanger the maintenance
of international peace and security.
In the case of such disputes, the Security Council may interVene at any stage to recommend appropriate procedures for settlement, but it is obligated, in so doing, to take into consideration
such inethods of settlement as have already been adopted by the
parties. Since the International Court of Justice was given no
compulsory jurisdiction, members cannot be bound to place disputes of a legal nature before it, but the Council is advised by
Article 36 to recommend the reference of such disputes, as a general rule, to the Court.
The parties to a dispute endangering international peace and
security are obligated by Article 37 to submit the dispute to the
Security Council if they fail to settle it themselves. The same
article contains a provision-added by amendment at San Francisco-which gives the Council the power not only to recommend
procedures of settlement but also to recommend actual terms of
settlement. In addition, the Council is specifically empowered to
make recommendations for settlement at the request of all the
parties to a dispute.
It is especially important to note that the Organization has authority only over international disputes. Paragraph 7 of Arti19. At San Francisco it was held that a non-member of the Organization
should not be allowed to bring to the attention of the Council or Assembly a
dispute to which it is not a party, since such a state might act irresponsibly
and attempt to embarrass, discredit, and weaken the organization
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136 VIRGINIA LAW REVIEW [Vol. 32
cle 2 prohibits the Organization from intervening "in matters
which are essentially within the jurisdiction of any state." Members cannot be required to submit disputes involving such matters for settlement. However, this provision may not be used to
hinder enforcement proceedings under Chapter VII. The Dumbarton Oaks Proposals carried a provision defining as domestic
matters those considered under that category according to international law. This definition was dropped at San Francisco, and
therefore the restriction stands in very broad and loose terms.
This factor may cause considerable difficulty and no organ or
body is authorized to interpret domestic jurisdiction. It was
hoped, however, that the Security Council might acquire the
power to do so and that some matters now considered to be primarily domestic in nature might eventually be recognized as endowed largely with an international scope.
In one outstanding instance the powers of the Security Council with respect to peaceful settlement are in advance of those en-
joyed by the Council of the League of Nations. The latter body
could act only if there was a breach of the peace, as provided for
in the Covenant. The Security Council, on the other hand, is
empowered to act to prevent a breach of the peace. Thus it may
prevent a dispute from becoming aggravated. Presumably a
number of disputes now troubling the United Nations will come
before the Security Council as soon as that body is established
and organized.
The provisions for peaceful settlement contained in the Charter though loosely drawn at some points, provide the Security
Council with a great deal of flexibility in carrying out its functions. While primary responsibility for settlement is placed upon the parties to the dispute, the Security Council may be said to
have an ace up its sleeve which the League of Nations did not pos-
sess. This is the power to preserve the peace. as set forth in
Chapter VII.
It is at this point that we find the most novel features of th
Charter and the greatest contributions to the development of international organization. The Security Council is assured effec
tive power to maintain international peace and security throug
its authority to order action by the members against any stat
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1945] THE UNITED NATIONS SECURITY COUNCIL 137
which threatens the peace or commits an act of aggression, and
through the provision to the Council of armed forces which it
may direct to enforce its 'orders. The ability to use force should
in most cases make it unnecessary actually to use this power. It
should make the states more amenable to the peaceful settlement
of their disputes.
Article 39 constitutes a mandate to the Security Council to
"determine the existence of any threat to the peace, breach of
peace, or act of aggression" and to make recommendations or to
decide what measures should be taken under Articles 41 and 42
to maintain or restore international peace and security. It is un-
necessary, before taking action, that the Council decide in which
of the three categories named the case falls. This may save it
some embarrassment and prevent delay.
In order to conserve the interests of the parties and prevent an
aggravation of the situation, the Council is authorized to call upon the parties to comply with such provisional arrangements as
it deens necessary or advisable while it is considering what rec-
ommendations to make or course of action to follow under Article 39.20 These provisional arrangements are to be executed
l)y the parties themselves. Under Article 41, the Council may call
upon the United Nations to apply measures not involving the use
of armed forces. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, radio
and other means of communications, and the severance of diplomatic relations. All members of the Organization have an un-
qualified obligation to apply whatever of these or similar meas
ures are called for. No special agreements need he negotiated to
make this obligation effective.
If the Council believes that measures of the above type are
likely to be ineffective. it may resort at once to the use of armed
force under Article 42. If measures of enforcement short of
the use of armed force are opposed by armed force, the Council
may find itself compelled to apply its powers under Article 42.
This Article empowers the Council to take "such action by air,
sea, or land forces as may be necessary to maintain or restore
20. Article 40 of Charter.
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138 VIRGINIA LAW REVIEW [ Vol. 32
international peace and security
use of the blockade or other demonstrations of force.
The obligations of members of the United Nations under Article 42 are limited in advance by the commitments they make
under Article 43 to the Security Council to place their forces at
its disposal. The Dumbarton Oaks Proposals had specified that
the members should provide armed forces to the Council through
the negotiation of special agreements "among themselves." In
order to assure a more orderly determination of the obligation of
each member, and to avoid delay and the possibility of inconclusive negotiations, this provision was changed at San Francisco so
that the agreements are to be negotiated between the members or
groups of members and the Security Council. The agreements
must further provide that the members make available such other
assistance and facilities as may be necessary for maintaining international peace and security, including the right of passage.
This may make it possible for the Council to negotiate for the
availability of strategic bases. The agreements will specify the
types of forces, their location, and their degree of readiness.
Furthermore, these agreements are to be negotiated as soon as
possible, but until they are concluded and ratified by the respective governments, the transitional security arrangements pro-
vided for in Article 106 are in force.2' Consequently the negotiation of the special agreements should be among the first business transacted by a newly organized Security Council.
Aside from the recognition accorded the efficacy of air power
in modern warfare, Article 45 calling upon the members to hold
immediately available national air force contingents for enforcement action, is superfluous. These forces will be made available
through the negotiation of special agreements, as will all other
forces under Article 43.
To assist the Security Council in the application of armed
force, Articles 46 and 47 call for the establishment of a Military
Staff Committee, subordinate to the Council. The Military Staff
21. This article places upon the five major powers the obligation of consulting with each other and with other members of the United Nations "with
a view to such joint action on behalf of the organization as may be neces-
sary" to maintain international peace and security.
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19451 THE UNITED NATIONS SECURITY COUNCIL 139
Committee is to advise and assist the Council on all questions relating to military requirements for the maintenance of peace and
security and the employment and command of the forces at its
disposal. It will also advise the Council on the regulation of armaments and possible disarmament.22 Apparently the success of
the Anglo-American Combined Chiefs of Staff inspired the plan
for the composition of the Military Staff Committee. Since the
five permanent members must bear the main responsibility for
the maintenance of peace and security, the Committee is to consist of their chiefs of staff. Any other member of the Organization may be invited by the Committee to be associated with it
when ihat body believes the efficient discharge of its duties requires the participation of the member. The Military Staff Committee is given responsibility for the strategic direction of the
armed forces placed at the disposal of the Council, but matters
of command are to be worked out subsequently. According to
Article 48, enforcement action may be taken by some of the
United Nations or by all of them, as the Council may determine.
The members are also called upon to assist each other in carrying
out enforcement actions and anv state which finds itself confronted
with special economic problems and hardships as a result of such
action has the right to consult with the Security Council to seek
a solution of these problems.23
In connection with the machinery for enforcement, the Security Council is also given authority over all functions of the Organization which, under the International Trusteeship System,
apply to trust territories designated as strategic areas. The Security Council is expected, however, to avail itself of the assistance of the Trusteeship Council on matters of administration in
the strategic area not directly related to security.24
It was the widespread recognition of the need for adequate
enforcement procedures supported by the major powers which
led the smaller powers to concede to the unanimity requirement.
22. Article 26 of the Charter gives the Security Council responsibility for
submitting plans for the establishment of a system for the regulation of armaments. This system is, it seems, to be predicated upon the attainment of security.
23. Article 50 of Charter.
24. Chapter XII, Articles 82 and 83 of Charter.
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140 VIRGINIA LAW REVIEWT [Vol. 32
Furthermore, under Article 53, action may be taken by the members of the Organization to put down any renewed aggression on
the part of states which in the Second World War were enemies
of the United Nations, without the review or supervision of such
action by the Security Council until such time as that body is
given responsibility for preventing aggression of such former
enemies. It should also be noted that while the Council has broad
authority to curl) the illegal use of force in international relations, it has absolutely no authority to control the use of force in
internal relations. These limitations on the freedom of action of
the Council reflect the fact that at this time the states of the world,
and especially the major powers, are unwilling to place full faith in
the United Nations Organizati on or in each other. It is hoped,
however, that the requirement of unanimity among the five great
powers will promote the habit of agreement among them. The
smaller powers were especially concerned at San Francisco lest
they be required, under the Charter, to place at the disposal of the
Security Council armed forces proportionately equivalent to those
so placed by the great powers but over the use of which they could
exercise no control. They tried unsuccessfully to enlarge the Military Staff Committee or further to define its functions. However,
a proposal advanced by the Canadian delegation, and which won
approval, provided that a nation not a member of the Council but
placing armed forces at the disposal of the Council should 1)e invited to participate in the decisions of that body regarding the
employment of those forces.25 However, even though such a
state disapproves of the Council's decision, it still cannot block
such use of its forces as the Council requires.
Provision is made in Chapter VIII, Article 52, for the settlement of disputes through regional arrangements or agencies,
"provided that such arrangements or agencies and their activities
are consistent with the purposes and principles of the United Nations." The members of the Organization are obligated to make
every effort to achieve peaceful settlement of a dispute through
local or regional bodies or arrangements before referring them
to the Council, and the Council is instructed to encourage such
regional settlements. The Council is further authorized to util
25. Article 44 of Charter.
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19451 THE UNITED NATIONS SECURITY COUNCIL 141
ize regional setups for enforcement action, and the Military
Committee may establish regional subcommittees. The Council
must, however, be kept fully informed at all times of actions contemplated or taken by regional agencies or under regional arrangements with respect to the maintenance of international peace
and security.26 It is clearly the expectation that such regional arrangements as the Pan American organization will be able to
settle most of the disputes involving that region, but the Security
Council has the power to assert its authority in such a dispute if
it deems it necessary. When the Council, under Article 52, paragraph 3, encourages the pacific settlement of local disputes
through regional arrangements, any party to a dispute, even one
of the five major powers, is obligated to abstain from voting.27
Nothing in the Charter impairs the inherent right of each
member to individual or collective self-defense if an armed attack occurs against it, but measures taken under this provision
miust immediately be reported to the Security Council and they
in no way affect the obligations and rights of that body.28
The Charter has been criticised by some individuals for its
failure to establish an international police force independent of
the member states, and for giving the Council enforcement pow-
ers over states rather than over individuals. Such provisions,
while theoretically sounder than those contained in the Charter,
would not have received the support of many of the delegations
at San Francisco, for they imply giving to the United Nations
Organization economic and political power of a scope far broader
than the delegates thought the political realities at present warranted. The provisions of the Charter described above constitute an exceedingly important curb upon the freedom of action
of the member states. Each member of the Organization will be
committed to a new course of action with respect to the use of
force in international relations, and to military and financial obligations ill support of its commitments under the Charter. The
member states are obligated to maintain such forces as they have
made available to the Security Council, by their agreements with
26. Article 54 of Charter.
27. Article 27, ? 3, of Charter.
28. Article 51 of Charter.
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142 VIRGINIA LAW REVIEWT [Vol. 32
it, for enforcement purposes. They are not called upon to renounce force. Rather, the Charter seeks to collectivize the use
of force and bring it under control by registering agreement on
the purposes for which it may be used, and by binding the members to refrain from the use of force except in a manner consistent with those purposes.
It may be expected that the Security Council will build up a
body of international common law through its reasoned decisions
and actions with respect to the peaceful settlement of disputes
and enforcement procedures for the maintenance of international
peace and security.
VI
The United Nations Organization is essentially an instrument
of international cooperation. It is more than an alliance and
stronger than the League of Nations, but it is not an international government. It lacks the political powers of a world government; it has no legislature and no over-all executive. It has
a rudimentary collective force at its disposal but this force cannot act automatically to enforce the law, as does a regular police
force. No act of violence, however serious, will enable the military contingents of the Organization to go into action immediately. They must in every case await a decision of the Security
Council. The lack of greater powers over the nmemrber states and
their populations is a reflection of the fact that the states still are
distrustful of each other, and are not sufficiently homogeneous or
aware of their interdependence. Dangerous as the lag in political development may be when compared to the terrifying rapidity
of scientific development, it will not be overcome except by excellent statesmanship and widespread popular education.
The Charter of the United Nations places upon the Security
Council, and especially upon its permanent members, the major
responsibility for the maintenance of international peace and security. The machinery provided is primarily designed to prevent wars between small states and to check threats to the peace
from states which (luring the Second World W\ar were enemies
of the United Nations. It cannot prevent wars which involve any
of the five major powers. and if a situation develops in which the
Organization is confronted with a violation of the obligations of
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19451 THE UNITED NAATIONS SECURITY COUNCIL 143
the Charter or a threat to the peace on the part of a major power,
it is very doubtful that the Organization will be able to act against
the great power without such action resulting in war. While
there would be certain legal and moral advantages in taking ac-
tion against a major power within the framework of the Organization, it was the realization that such action would in all likelihood take on the proportions of a major war that led most of the
smaller powers to accede to the present provisions of the Charter.
In addition, it was essential to the success of the Organization
that all the major powers adhere to it-especially the two historically most reluctant, the Soviet Union and the United States. In
a real sense the veto power of the permanent members of the Security Council reflects the distribution of power at the end of the
Second World War. Both the 'United States and-the Soviet Union made it abundantly clear at San Francisco that the choice before the delegates was the Charter with the veto or -no Charter.
It is doubtful that the United States Senate would have ratified
the Charter, especially by the overwhelming vote of 89 to 2, if
it would have been possible for the Security Council to take ac-
tion on important matters, and especially action against this
country, without the consent of the United States.
Perhaps too much emphasis has been placed on formal voting
procedures, since it may be expected that most matters will be
ironed out through discussion, but as long as the unanimity principle is maintained for the great powers in the Security Council
the success of the Organization rests fundamentally upon the
ability of these powers to maintain good relations with each other.
They can reconcile their conflicting interests if they clarify and
mutually recognize their strategic interests, if they do not seek
to extend their security zones immoderately, and especially if
they continue and increase their joint consultation and action.
Since the maintenance of peace depends primarily on these fac-
tors, the Security Council should, perhaps, be regarded as essentially a political instrument rather than as a police agency. The
fact that for the first time in modern history all of the major powers are brought together, within the Security Council, and will
maintain constant contact with each other, should facilitate the
development of greater trust and understanding among them pro-
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144 VIRGINIA LAWY REVIEW [Vol. 32
vided competent and skillful statesme
Council.
The position of the great powers in
them a special obligation to the small
velop a sense of self-restraint and respo
vent their violation of the Charter. T
able to compromise if resort to the old
be avoided. While the Charter does not confer on them any
power to preserve the peace or make war which they do not already in fact possess, it places upon them special and binding obligations to use their power in unison for peace. It also gives the
small powers some check on the actions of the great powers. No
action can be taken by the Security Council unless two of the
non-permanent members elected by the General Assembly concur.
Thus five of the non-permanent members can exercise a veto
over any action contemplated by the permanent members. All
the powers, large and small, are bound by the principles of the
Charter and their obligations under it. The big powers may
therefore be called upon to refer their disputes to the Organization if these endanger the maintenance of international peace and
security. The annual and special reports which the Security
Council must make to the General Assembly on its wvork,29 and
which the Assembly may discuss, will throw light on the work
of the Council. The freedom of discussion of problems relating to peace and security which the Charter affords the members
should serve as a further check upon irresponsible action by the
great powers. It may be expected that the small powers wtill
maintain strict and continuous surveillance over the actions of
the permanent members of the Council. It is therefore up to
these powers to demonstrate their unity, without which they
claimed the Organization could not exist. They have promised
not to abuse their veto power, and they cannot escape responsibility for the consequences if they do abuse it.
In view of these facts, it is likely that a great power will hesitate before defying the rest of the world and incurring full responsibility for starting a war. In fact, the smaller powers
not only fear the abuse of power by the permanent members of
29. Articles 15 and 24 of Charter.
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19451 THE UNITED NATIONS SECURITY COUNCIL 145
the Council; they also fear the failure of the gr
ert their power, as they so often failed in the p
likely that a lineup of small states against the great powers will
develop within the Organization.
Many observers have deplored the continuation of conflicts of
view among the states and the use of "power politics." In real-
ity all politics, at whatever level of government, involve continuous conflicts of interests and their adjustment. The adjustment of these conflicts usually reflects in some manner the
relative strength of the contending parties. We may therefore
expect continued conflicts of interests and views at the international level, just as we expect them at the national and local levels.
The United Nations Organization can make a contribution of
immeasurable value to mankind if it can facilitate the peaceful
adjustment of these disputes and conflicting interests, and develop closer cooperation among the peoples of the world in solving their common problems.
We are increasingly aware that the tasks before the United
Nations are difficult and will require great patience in their han-
dling. The strains of the present transitional period will be heavy.
Iin some respects the situation may parallel that which confronts
a frontier community wlNhen its citizens realize that self-help and
self-defense against outlaws is too costly. They usually elect a
sheriff and vest him with powers sufficient to keep order, but th
fact that they will continue to carry arms for their own self-defense until hle proves capable of maintaining order makes the
sheriff's task most difficult. The members of the United Nations and their peoples are aware of the need to avoid future
wars, and they desire the collective action essential to mainte-
nance of peace and security. But the) will not abandon their
own unilateral measures for security, even though in the past
these have proved inadequate, until the United Nations Organi-
zation proves itself capable of performing its tasks.
The United Nations Organization is far from perfect. It is
expected that as the states of the world increase their experience
in cooperating with each other, they wvill increasingly trust each
other and be willing to strengthen the Organization through the
amending process. It is essential today to maintain the unity and
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146 VIRGINIA LAW REVIEW [Vol. 32
cooperation established among all the powers at San Francisco.
Machinery alone is inadequate to preserve this unity and cooperation. Organizations are incorporeal, and they will function well
only if they have enthusiastic support of individuals. There is
a real danger that, having established an organization, individuals will now relax and neglect their personal responsibilities.
The San Francisco Conference was successful largely because it
was supported by an enlightened and inspired public opinion.
The continued success of the United Nations Organization, so
vital to the welfare of each individual, depends in the last analysis upon his continually expressed will to make it succeed.
Alfred P. Ferubach.
CHARLOmSVILLIE, VA.
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