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Senator CLARK. Mr. Warburg, I want to thank you for coming down here and giving us a very provocative statement with which in general I find myself in accord. I suspect that in justice it should be said for the State Department-which will have an opportunity to rebut tomorrow some of the comments which have been made today-I think they will probably tell us they work pretty hard to get the OAS to agree to a stronger statute of authority, and our Latin American friends are very reluctant to move away from articles 15 and 17 for historic reasons.

The thing that bothers me is that we seem in recent days to have turned ourselves away from the rule of law as a basis for American policy, and we seem to be of the view that military solutions to political problems are still feasible in a modern world, which I feel quite strongly they are not.

Mr. WARBURG. This is part of what I was trying to bring out. I agree thoroughly.

Senator CLARK. Thank you very much, sir. We certainly appreciate your coming.

Mr. WARBURG. Thank you.


The next witness is Mr. Benjamin V. Cohen who is appearing on behalf of the National Committee for a Sane Nuclear Policy.

Mr. Cohen, we are very happy to welcome you here, not only in your representative capacity, but in your own right as one of the most profound thinkers in the whole field of foreign policy alive today. You have made a magnificent contribution to our politics and to our Government over these many years. I want to thank you for being willing to appear this morning.

We will put your statement in the record as we have done with previous witnesses, and I would ask you if you would, to try your best to observe our 10 minute rule.

(Mr. Cohen's statement in full follows:)


My name is Benjamin V. Cohen, Washington, D.C. I have been requested to testify by the National Committee for a Sane Nuclear Policy, of which I am a national sponsor.

My testimony on S. Con. Res. 32 is adopted from the David Niles Memorial Lecture at the Hebrew University of Jerusalem, delivered April 27, 1965.

I thought it would be appropriate for me to take as the subject of the first David Niles Memorial Lecture, "The United Nations in Its 20th Year."

As I shall be particularly concerned with some developments and trends which in my view threaten to undermine the first and primary purpose of the United Nations that is to maintain international peace and security-I do not want you to think that I am unaware of the great difficulties with which the United Nations has had to contend and the considerable progress it has made in many spheres of its activities.

When the charter was drafted it was contemplated that the great powers would work out an acceptable peace which the United Nations could maintain. But a stable and acceptable peace-a consensus or modicum of common understanding on the basic principles of coexistence-was never established after the last world The great powers were in no position to cooperate to maintain a peace the terms of which they were unable to agree upon. Rivalry and conflict among the great powers led to a cold war in which the adversaries lost sight of their com


mon interest in peace and were prone to exploit their differences rather than to attempt to find means of composing them. Even apart from the cold war the whole world was struggling to adjust itself to revolutionary political, economic, and social changes, and the adjustment in many areas was difficult, painful, and not altogether rational. There was widespread need of adjustment to the radically changed conditions of life which modern science and technology made possible. In many areas the striving for economic improvement was accompanied by movements to break the bonds of colonial rule and feudal and tribal relationships. The very survival of the United Nations under these circumstances attests to humanity's essential need of the United Nations as an instrument of international cooperation in a world which has become increasingly interdependent despite ideological national and cultural differences and outlooks.

It is amazing the number of international institutions which have been created in the last two decades within the framework of the United Nations and its specialized agencies to meet the varied needs of states and their people. There is not only the United Nations but UNESCO, UNICEF, the World Health Organization, the Food and Agricultural Organization, the Monetary Fund, and the World Bank, GATT, the several regional U.N. economic commissions, the expanded program of technical assistance, the Special Fund, the Trade and Development Conference, and many more. In the modern world all states have felt the need in various ways of participating in cooperative international activities, and international cooperation is becoming the norm in many spheres of activities. Technology has broken down the barriers of time and distance. New vistas bring new opportunities but new dangers. For good or ill, states cannot avoid multiple contacts with the outside world and increasing organization on an international basis is necessary to avoid conflict and promote common welfare. This is particularly true in the case of states emerging from colonial status. There can be no revolution of rising expectations in these underdeveloped lands without access to the tools and know-how of modern science and technology. To have such access, colonialism must not give way to a narrow isolationism with its turbulent nationalism or resurgent tribalism, but must be succeeded by enlightened international cooperation. Continued progress in the substitution of international cooperation for the old colonial relationship will be necessary in the years ahead for the common welfare of the people of the old as well as new states.

International cooperation within the general framework of the United Nations during the past 20 years has been much more widespread than it was within the framework of the League of Nations between the First and Second World Wars. This is an important measure due to the participation of the United States in these activities in contrast with its nonparticipation in most of the League's activities. The United Nations has aspired to a universality which was denied to the League because of America's absence. But it is important to remember that the universality to which the United Nations aspires is seriously threatened by the absence of representation of the mainland of China in United Nations' activities.

Without going into detail I think I have said enough to indicate that I am not unmindful of the growth and progress of many international activities within the framework of the United Nations during the last 20 years. But the many useful activities of the United Nations should not blind us to its faltering and disappointing progress in the fulfillment of its primary objective.






While there may have been doubts and misgivings as to how the primary objective of the charter was to be achieved there was and can be no doubt what the primary objective of the charter was and is. It is not necessary to recite at length the purposes and principles of the charter as enumerated in articles 1 and 2 and as embellished in the preamble. Paragraph 1 of article 1 states the first and primary objective of the charter-"to maintain international peace and security." All of the other stated purposes and principles of the charter are designed to strengthen and safeguard the primary purpose of maintaining peace among nations.

One should, of course, avoid making dogmatic judgments about bypassing the United Nations. The United Nations is not a totalitarian institution. The charter does not require that all international acts and transactions be done in or through the United Nations. The charter expressly contemplates that parties to a dispute which may endanger the peace should, first of all, seek a solution by peaceful means of their own choosing. But the charter provides no excuse for

member states, large or small, keeping disputes for which no peaceful solution has been found away from the United Nations until they have actually erupted into war.

The basic law on which the charter was constructed is simple. It imposes no straitjacket, no impossible burden or restriction on any state. It is based on principles by which all nations, large as well as small, must live if mankind is long to survive on this planet in this nuclear age. The law of the charter which all members are pledged to observe is twofold. First it requires all states, large as well as small, to refrain in their international relations from the threat or use of force except in individual or collective self-defense against armed attack, and all measures taken in the exercise of self-defense must be immediately reported to the Security Council. Second, the charter required all states, large and small, to settle their disputes by peaceful means in such a manner that peace, security, and justice are not endangered.

These two obligations of the charter are correlative. The surrender of the right of states to use force was not intended to leave states without any effective means of securing a redress of their grievances. A state which resorts to force to redress its grievances without first invoking the processes of the United Nations violates the charter. But a state which refuses to consider the serious grievance of a sister state and refuses to agree to any procedure for peaceful settlement also violates the law of the charter. Force is proscribed as a means of settlement but members must be willing to negotiate and submit their disputes for settlement under some reasonable procedures. While the primary purpose of the United Nations must be to maintain peace, peace cannot be maintained without some minimum redress of genuine grievances. This twofold law of the charter constitutes the heart of the charter. The law of the charter provides the minimum requirements necessary to enable members to work together to outlaw the use of force as a means of settling international disputes and to provide procedures for the peaceful settlement of disputes which threaten the peace.

There have always been questions and doubts how the United Nations could enforce the obligations of the charter against recalcitrant states, particularly the great powers. But there can be no question that the great powers as well as the small powers obligated themselves to observe the law of the charter. The veto may have given the great powers the right to forestall Security Council action, it did not give them the right to deny their obligation under the charter to respect the law of the charter. The “Uniting for Peace Resolution" of 1950 formally recognized the right of the Assembly to recommend action based on the obligations of the great powers as well as the small powers to observe the law of the charter.

In the early days of the charter the Soviet Union withdrew its troops from Iran, and France withdrew its troops from Syria to avoid charges of charter violation. In the early days of the charter it was assumed that if there was a threat to or breach of international peace, the United Nations would in one way or other be activated in an effort to stop the fighting and to restore peace. The U.N. may have been an imperfect instrument but it did help to restore peace in Greece, Kashmir, and Korea. It also helped to restore peace in Israel when the State of Israel was first established and again at the time of the Suez difficulties even though the onesided character of some of the Assembly's resolutions in the latter case may have been unfortunate and unwarranted.


Professions of faith in the United Nations and the law of the charter continue to be made in their formal addresses by heads of states and government. there has been a perceptible decline in the recognition and observance of the law of the charter, in the obligation to seek peaceful settlement or containment of disputes through the United Nations before using or threatening to use force to resolve them. There are, to be sure, explanations for these adverse developments-ideological differences between the east and west and marked contrast in social and economic conditions between the north and the south. These would be sufficient explanations for nations trying to settle their disputes peacefully when they could without burdening the United Nations with their troubles. But these are scarcely justification for nations taking the law into their own hands and threatening to use and actually using force without first submitting the case to and seeking the good offices of the United Nations to obtain a redress of their grievances. It is said, however, that the United Nations cannot take care of its present burdens and is in no position to assume

more. Feigned concern for the United Nations is no excuse for any member violating the law of the charter without even attempting to fulfill its obligations under the charter. If a member in good faith seeks the assistance of the United Nations to obtain a redress of its grievances against another state and the United Nations is, in fact, unable to act, it may then possibly be urged that there is a hiatus in the charter that would relieve the aggrieved state of its obligation not to take the law into its own hands. But charter obligations become illusory and the charter, as the last best hope of peace on earth, becomes a dying hope if member states resort to war for the settlement of their differences without first at least invoking the good offices of the United Nations. Bypassing the United Nations under such circumstances, I fear, evinces more contempt than concern for the future of the United Nations.

During the last decade or so, states have with disturbing frequency resorted to force or the threat of force without feeling even a sense of obligation of reporting their action in advance or even subsequently to the United Nations. One need only mention Russia in the case of Hungary, India in the case of Goa, and the United States in significant aspects of the Cuban and South Vietnam situations. I mention these instances not to single out a few states but to indicate the generality of the nonobservance.

Some authorities have tried to justify the evisceration of the law of the charter by a latitudinarian construction of the right of self-defense under article 51 and of the authority of regional agencies under articles 52 and 53. I fear many

of these interpretations are based on opinions that the legal advisers are requested to render after, rather than before, the political decision to resort to force has been made by the responsible political officers. Some of the more latitudinarian constructions of the right of individual and collective self-defense seems to me to militate against the spirit of the charter which is to bring disputes to the United Nations before they erupt into war. Perhaps more important than the exact scope of the right of self-defense is the recognition that the right of selfdefense, whatever its limits, affords no excuse for not bringing a dispute which threatens the peace of the United Nations for settlement before the right of selfdefense is exercised if time permits and immediately thereafter if prior submission is not possible.

The rightful exercise of the right of self-defense, in my view, is no excuse for continuing to wage war without resort to the United Nations for peaceful settlement. Neither should the wrongful exercise of the right of self-defense, if dis-, continued at the request of the United Nations, deprive a member state of its right to secure a redress of its grievances as part of the United Nations processes of peaceful settlement.

In recent years there has also been an attempt to justify the evisceration of the law of the charter on the ground that the charter does not forbid the use of force by one state at the request of the recognized government of another state to assist the latter state to quell a rebellion. Such a libertarian construction of the charter does violence to the letter and spirit of the charter. The armed intervention of one state in the civil war of another state whether at the request of the established government or its rival government is in fact the use of force by the intervening states in its international relations, whether the civil war be called a war of liberation or a war in defense of freedom.


True the charter does not forbid civil war or deny the right to revolt. But it does not sanction the right of an outside state to participate in another state's civil war. If a civil war in one state threatens international peace the United Nations may intervene to deal with that threat, but no member state on its own responsibility has the right to participate in the fighting in another state's civil If different states recognize opposing factions in a civil war and participate in the fighting with opposing factions, they create and do not prevent a threat to international peace. Events in Europe in connection with the Spanish Civil War made this obvious. This does not mean that arms may not be shipped to a friendly state threatened with rebellion; or that troops may not be sent to a friendly state to participate in a collective self-defense action to repel an armed attack from another state; or that troops may not be dispatched to a friendly state to participate in a mission of mercy to prevent the massacre of innocent civilians. But taking sides and fighting in another state's civil war is quite a different matter. See, Cohen, "The United Nations, Constitutional Developments, Growth, and Possibilities," Harvard University Press, 1961, pages 53–54.

It serves little purpose to debate the legal soundness of some of the interpretations given the charter under the impact of political forces. A recent study

of the Carnegie Endownment for International Peace ("The OAS, the U.N., and the United States," by Inis L. Claude, Jr., International Conciliation No. 547, March 1964) demonstrates how under the impact of the cold war the U.S. Government has come close to shifting its legal position completely on the relations between the United Nations and regional agencies. There is a sort of Gresham's law operating in the field of charter interpretation. No state can or will long operate under a rule of law that is not respected by its fellow states. A restatement of the rule may fare no better unless there is a change in the political environment and the forces which shape the decisions of the responsible political officers of the state. I do not agree with many international lawyers and teachers who would like to have the Legal Committee have a monopoly on the legal questions arising under the charter in the General Assembly. I think it important that the highest political officers have a realistic understanding of the meaning and effect of charter interpretations and not merely accept the advice of their legal experts pro forma when it does not matter, only to reject and ignore it when it really touches a vital political nerve.

But whatever the causes or explanations, the law of the charter which was to outlaw the use of force as a means of settling disputes between states has fallen into desuetude. If we continue to accept this abandonment of the basic law of the charter requiring all nations, large and small, to seek in good faith peaceful settlement through the processes of the United Nations before resorting to war, we shall have allowed the very heart to be torn from the charter. Important as are the technical and social services the United Nations may render the underdeveloped countries, these are but fringe benefits which will wither away once the heart of the United Nations ceases to beat.

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What has gone wrong? Is it the fault of the charter? Is it due to the veto? Is it due to the excessive voting power of the small new states in the Assembly? Have we really exhausted the untried resources and potentialities of the charter? The charter may not be perfect. But it is not the charter that obstructs the way to peace. The charter sets forth a few basic principles but leaves to successive generations who will live under it the responsibility of finding suitable means of carrying out those principles. The charter is not a self-operating mechanism. Its operation depends not so much on the words of the charter as on the way member states exercise their rights and meet their responsibilities. Some means are specified in the charter but these are not necessarily exclusive. Within widest limits other means are not prohibited. The charter is not a code of civil procedure to be strictly construed. I know no better canon of construction to be used in determining charter power than that laid down by Chief Justice Marshall in McCulloch v. Maryland, (4 Wheaton 316, 421) for determining constitutional power: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

It is the right and responsibility of member states to find means which are appropriate, which are not prohibited, but consist with the letter and spirit of the charter, to carry out purposes of the charter. There has been a tendency, I fear, for members to seek excuses and alibis for not working under the charter rather than to make any sustained efforts to find means of carrying out the purposes of the charter. It is quite possible that the means which may prove most helpful now are not necessarily the means which would have been most helpful in years past or the means which may be most helpful in the more distant future.

It seems to me that we have tried to build the United Nations too much in the image of the nation state-to muster power to fight wars rather than to develop the tolerance and understanding to prevent war. We have tried to exorcise differences by a majority vote rather than to seek means of composing and reconciling differences and containing, within reasonable, tolerable, and livable limits, those which cannot presently be composed or reconciled.

Of course until there is much greater progress toward general and effectively safeguarded disarmament it is necessary and in the interest of the United Nations and world peace that the member states maintain a reasonable balance of armed strength so that the most aggressive states will not be tempted to secure their interests by war rather than peaceful means. Of course it is in the interest of the United Nations and world peace that member states cooperate

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