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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.
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
not only in the United Nations but in regional and functional organizations so that they will be better able to support the efforts of the United Nations to maintain peace in the world. We live in a pluralistic world and diverse and varied efforts--political, economic, and social within and without the United Nations are needed to strengthen the forces of peace, freedom, and well-being throughout the world, provided, however, that such efforts do not countenance the waging of war in disregard of the United Nations Charter.
In this divided world in this nuclear age there is no substitute for an organization like the United Nations which transcends the interests of states and groups of states and sets above their divergent interests the common interest and the transcending vital interest of all states in the maintenance of peace.
Military alliances may deter war for a period by maintaining an uneasy balance of power, but military alliances are not likely to develop means or procedures for peaceful settlement or containment of vital differences among states or groups of states parties to different alliances. NATO, SEATO, and CENTO were to function in support of the United Nations and its charter principles, but in fact there has been little or no effort to relate their work to the United Nations. Many supporters of NATO, the greatest of the postwar military alliances, would give it priority over the United Nations. Yet NATO has not been able to secure peaceful settlement in its own area; it reluctantly acquiesced in the United Nations intervention in Cyprus when all else failed. NATO bas in no way responded to the detente with the Soviet Union with any arms control proposals. Indeed it has tended to regard with suspicion any arms control proposals which would affect it. At the time of the 1961 Berlin crisis, NATO was used not in support of the U.N. and peaceful settlement but as an alternative to resort to the United Nations. When crises developed in Laos and South Vietnam, SEATO was invoked not in support of the U.N. and peaceful settlement but in lieu of the United Nations.
If one believes in the therapeutic effects of shock treatment in international affairs, in the therapeutic value of periodic armed confrontations such as occurred in Berlin, Cuba, and Vietnam, one need not be concerned by the fading out of the United Nations and what was once called man's last best hope of peace on earth. But such confrontations in this nuclear age involve risks which responsible statesmen conscious of their responsibilities to future generations cannot continue to ignore.
The United Nations was established to enable responsible statesmen to work together to avoid these risks. It was intended to provide an instrumentality through which members could unite their power and resources, spiritual and material, to protect their one and all-important common interest in the maintenance of peace in this nuclear age. Of course the charter will fail of its purposes if states insist on using force or the threat of force when it suits their interests without giving the United Nations the chance to use its good offices to compose differences which threaten the peace.
It is not the lack of power which might be called to the support of the United Nations hic stands in the way of the realization of the promise of the United Nations. It is the lack of genuine effort on the part of the member states, particularly the great powers, to use the as yet untapped resources of the United Nations to develop processes and procedures for the peaceful settlement of disputes among states. It is putting the cart before the horse, to put it mildly, to worry about how the United Nations is going to muster power to enforce peaceful settlement before it has developed processes and procedures for reaching peaceful settlements which can command the respect of states whose vital interests and possibly very existence are at stake. Intemperate invective and unrestrained cold war debate hastily followed by the counting of votes, in many instances uninformed and unaffected by the facts or merits of the controversy, constitute a rank betrayal of the purposes and principles of the charter.
It is extraordinary that so little sustained thought and consideration has been given to the development of the processes of conciliation and mediation as part of the pacific settlement functions of the United Nations. The sidetracking and soft-pedaling of the pacific settlement functions of the United Nations may be ascribed in large part, as I have indicated, to the cold war. Issues formally brought to the United Nations for peaceful settlement have been exploited for propaganda purposes and serious efforts to harmonize differences have been noticeable by their absence. The mediation and conciliation functions of the United Nations have been neglected and allowed to atrophy. Obviously, in dealing with differences among sovereign states, particularly at this stage of international organization when states are excessively jealous of their sovereignty,
an agreed solution is to be preferred to an imposed solution. Even states eager for a solution are loath to agree in advance to accept arbitration or an imposed solution for fear, sometimes for groundless fear, it may involve unexpected terms difficult or impossible to explain to their people. The imposition of a solution may produce serious divisions and strains within the United Nations, while an agreed solution, if it can be brought about, is an undisputed achievement and builds international confidence in the United Nations.
The process of conciliation and mediation encourages good faith negotiations and collective bargaining among states. It tends to curb the instinctive habits of states when national passions are aroused to try to get their way by threats and counterthreats of force instead of seeking a fair accommodation by a little give-and-take on both sides.
There is indeed at this stage of international organization perhaps more to learn from the traditions and practices which govern the peaceful settlement of labor disputes in modern industrial states than there is from the study of the making and enforcement of law within a state. In the early days of labor unions there seemed to be irreconcilable differences in the ideology of labor and capital, and the law in many states did not even recognize the right of labor to organize. Labor did not trust the courts, which labor felt shared the ideas of management. To paraphrase the remarks of Mr. Litvinov regarding the relations of capitalism and communism, labor thought no one could be neutral between management and labor. In the early days of union activities violence on one side or the other or both-allegedly in self-defense, of course was not uncommon. Gradually the right of unions to organize and bargain collectively was recognized by law, but both sides shied away from compulsory arbitration unless it was agreed to in advance by both sides. But custom, if not law, imposed upon both sides the duty to bargain in good faith and make every effort to reach a peaceful agreement. If prolonged work stoppage threatens the welfare of the community it has become customary for the state or community to intervene, not by imposing a settlement but by creating an environment which should facilitate an agreed settlement. Sometimes the state or community will provide a cooling-off period comparable to a waiting period of 3 months following the report of the Council, under which a covenant of the League, states agreed to observe before resorting to war. Sometimes the state or community will provide a cease-strike period comparable to a cease-fire during which negotiations can proceed in a relaxed atmosphere. Frequently the state or community will provide a mediator or conciliator, or a group of mediators or conciliators. These skilled professionals will bring the parties together, find the essential facts at the root of the controversy, define and narrow issues, isolate and defer issues on which agreement is clearly impossible, suggest alternative solutions, and at times make definite recommendations for settlement that they think both sides can accept and live with.
It might be said that in the labor relations field an unwritten common law has been developed and accepted that all disputes affecting the public welfare must be settled peacefully; that is, without violence and without protracted disruption of the public service. No particular means of reaching a settlement is prescribed, but all means cannot be rejected. Mediation and conciliation processes will be available to assist the parties reach an agreement by means of their own choice, and compulsory arbitration will be avoided as long as possible. But an agreed settlement or modus vivendi must be reached or the parties will be obliged to accept an imposed settlement.
Much of what has been learned in the last century in the handling of labormanagement disputes can be applied in the handling of disputes among states. We should worry less about the power of the United Nations to compel or coerce settlement and concern ourselves more with the conciliation and mediation procedures and processes the United Nations can provide to assist states compose their differences and settle their disputes. The United Nations environment should be most favorable to the development of unparalleled facilities for conciliation and mediation. Most member states, with little or no direct interest in a direct dispute unless prematurely forced to take sides, will naturally want to be helpful in facilitating an agreed settlement by peaceful means. Most disputes between states like most disputes between labor and management involve other legal issues and cannot be settled by the application of any preexisting or mutually acceptable rule of law. Consequently they lend themselves more readily to negotiated settlements than to inflexible judicial settlements of political legislative solutions. The disputant states, like labor-management
disputants, are less likely to fear outside intervention to facilitate a negotiated settlement than they are to fear outside intervention to impose or coerce a settlement.
Indeed, despite the neglect of the pacific settlement functions of the United Nations and the lack of preparations to enable the United Nations to function effectively in this area, there is enough in the past activities of the United Nations to justify faith in the great potentialities of the United Nations in this area. There are the outstanding accomplishments of Count Bernadotte and Dr. Ralph Bunche as mediators in the Israeli-Arab conflict in 1948; the quick and extraordinary resourcefulness and imaginative statesmanship of Mr. Lester Pearson of Canada which led to the creation over a weekend in 1956 of a peacekeeping force not to fight but to keep the peace in the most sensitive areas in the Near East; the patience of Mr. Frank Graham in containing the Kashmir conflict; the deft and dedicated efforts of Dr. Hammarskjold in handling the operations of the United Nations peacekeeping forces in the Near East and later in the Congo; and similar efforts of U Thant in the tense Cyprus situation.
Indeed it is interesting to contrast the failure of member states to earmark troops, by special agreements with the Security Council under article 43 of the charter or in response to the Collective Measures Committee of the General Assembly, for enforcement or sanction actions with the increasing willingness of member states to earmark troops for peacekeeping operations as an adjunct to pacific settlement. Canada, Denmark, Finland, Iran, Italy, the Netherlands, Norway, and Sweden and most recently the United Kingdom have already volunteered to hold troops on a permanent basis in readiness for United Nations peacekeeping operations. (Issues before the 19th General Assembly, International Conciliation, No. 550, November 1964, pp. 19–24.)
These are significant stirrings of hope. Yet one must regretfully observe that most national statesmen—while paying lipservice to the United Nations and tearfully lamenting its ineffectiveness and professing to wish to see it strengthened-have done precious little to develop and dramatize the great potentialities of the United Nations under the present charter in the field of peacekeeping and pacific settlement. If, as they tell us, there is no alternative to peace in this nuclear age, they should give at least a fraction of the time they give to building up military power to building up an effective administrative corps within the United Nations to assist and promote the peaceful settlement of international disputes. Certainly national statesmen might be expected to give as much time to this task as they give to the recently revived study of geopolitics which seems to be based on the supposedly obsolete theory that there is no alternative to war.
I will make only a few of the many suggestions which should be worthy of study in this connection. One, there should be set up a reporting or rapporteur system to assist the Security Council and the General Assembly in handling disputes between states which threaten the peace. Every precaution should be taken to relieve the Security Council and the Assembly from having to act on the uncorroborated statements of the disputants and their partisans. There should be available to these organs reports-prepared by a professional rapporteur or group of rapporteurs—as objective as possible of the essential facts at issue and the positions taken by the disputants.
Second, as part of or in addition to such a corps of rapporteurs, there should be a small corps of professional diplomats whose experience or training qualify them to act as mediators or conciliators. Among other things, it should be their duty to investigate on their own initiative or on the request of a specified number of member states the use of force or the threat to use force by any state or states which has not been brought to the attention of the United Nations and to report the essential facts to the Secretary General. The Secretary General should be authorized on the basis of such report to offer the services of the mediating and conciliating corps to the disputants to assist them in negotiating a settlement of their differences.
It is gravely disturbing that many devoted friends of the United Nations have failed to grasp that the failure of the United Nations is threatened as much or more by the neglect of the great powers than by the irresponsibility of the small states. Even the revered Dag Hammarskjold who gave his life for the United Nations, in appealing for the support of the small states against Mr. Khrushchev's proposal to force his resignation and to trifurcate the office of the Secretary General, stated in the General Assembly in September 1961: "It is not the Soviet Union or indeed, any other big powers, who need the U.N. for their protection; it is all the others. In this sense, the organization is first
of all their organization, and I deeply believe in the wisdom with which they will be able to use it and guide it.” It is quite understandable at that critical time Hammarskjold should have reminded the small states of their great stake in the United Nations and their duty to act responsibly. It was unfortunate, however, that the words may suggest that the great powers have a lesser stake in and a lesser need of the U.N. If great powers do not have confidence in the United Nations, they cannot expect the smaller powers to have confidence in it.
Recurrently and persistently a school of realists tell us that the United States cannot deal with conflicts between the great powers because of the veto and the lack of countervailing power. One would have thought that the uniting-for-peace resolution in 1950 would have put that argument to rest. Moreover, whatever criticism may be made of the one-sidedness of some of the resolutions in the Suez case, it certainly established the continued vitality of the unitingfor-peace resolution and rejected the proposition that the great powers have a right to ignore their charter obligations. Strong arguments may be advanced that the United Nations cannot muster the power, and would be unwise to attempt, to impose its will by force on the great powers or for that matter on some of the lesser powers. The primary purpose of the United Nations after all is to keep the peace and prevent war, not to fight wars, to stop aggression not to punish the aggressor. But there is nothing in the charter or outside the charter that would justify the great powers any more than the small powers to reject and ignore the conciliation, mediation, and other peacekeeping processes and procedures that the United Nations might provide for the peaceful settlement of disputes which threaten the peace. If the United Nations withers away, it will not be because it lacks the power to impose its will by force but because the forces for peace represented in the United Nations do not unite their strength as the charter bids them to do to bring the powers, great or small, which are involved in the conflict, to the conference table for good faith negotiation. I have scant sympathy with those who are so devoted to the United Nations that they would not saddle it with the burdensome task of bringing clashing powers to the conference table for fear that conference will be abortive. To what a pass the United Nations has come when it scarcely takes notice of a war in Vietnam which threatens to escalate into a major world conflict.
It is not suggested that disputes affecting the vital interests and very existence of states may peacefully be settled by cold war debate and the counting of partisan votes. In this greatly diversified and deeply divided world, a consensus is not easily found. But even amid diversity and division the common interest in peace in the continuation of life itself on this planet-should be strong and effective enough to provide the procedures and processes to bring states in conflict to the conference table and to assist them to reach agreed settlements with which they can live.
This does not mean that all debate in the General Assembly and Security Council can or should be suppressed. As in all political bodies the delegates often speak as much to their own constituents as to their fellow delegates. To some extent this is unavoidable and with limits desirable. It does enable the delegates to inform and advise one another of the grievances, problems, and predilections of their various constituencies. But the cold war has unfortunately invaded the United Nations and taken over to the point that in some instances it has strengthened and accentuated divisions and actually militated against the development of a feeling of community, of shared interests in meeting the problems and adjusting the differences which threaten not only peace but life on this planet.
If the political organs of the United Nations are to play their part in building peace which will save the world from a nuclear holocaust, there must be when there is no clear consensus, a downgrading of voting and an upgrading of efforts to create and employ the processes of mediation and conciliation to obtain the accommodations, compromises, and provisional arrangements which are necessary if we are to live at peace. But there are those who say let justice and right prevail though the heavens fall. But who is to determine what is just and what is right? Does justice lie with the strongest battalions or the deadliest missiles? And what justice can there be if the heavens fall? I should think it might better be said : Let justice be done so that the heavens will not fall.
Antagonistic ideologies not reconcilable by logic have in the past been reconciled by the felt necessities of the times, even when they contended not only for the things of this earth but for man's immortal soul. The test of life, the test of peaceful coexistence-like the test of law as Justice Holmes has reminded us