San Francisco Conference: The Second League
The delegates may be there to discuss peace, but the cold war is in full bloom at the UN's San Francisco Conference.
The San Francisco Conference was a good deal like a tug-of-war, with five great states on one end of the rope and a crowd of small ones on the other. The pattern was not perfect, for certain small clients pulled with their big patrons, and once or twice several big powers, without deserting their end of the rope, either went slack or pulled openly in the other direction. This general pattern was to be expected, since the purpose of the conference was to win the consent of small states to something already decided by the great, and since the small were being asked to give up some portion of a sovereignty which the great retained intact. As was also to be expected, the great states won most of the pulls. At decisive points the issue for the small states was between formal prestige on the one side and substantial security on the other. Substantial security won.
The upshot of the struggle was the definitive design of over-all international collaboration after this world war. It is being greeted with some exuberant praise and some muffled cynicism. It deserves neither the one nor the other. Its merits--which are numerous--are the fruit of hard, patient labor by devoted men. Its defects--which, if it be regarded as a system of world government, are obvious--are mostly the product of forces beyond the control of the representatives who met at San Francisco or even of their governments.
The United Nations' power for action, such as it is, is concentrated in the Security Council. The General Assembly, unlike the corresponding body in the League of Nations, is confined to a role of discussion and recommendation. Only in the internal economy of the organization--matters of membership, budget, non-permanent representation in the Security Council, composition of the Economic and Social Council and of the International Court--does it make decisions binding on member states. The clear-cut subordination of this body of fifty to the Security Council of eleven is emphasized by the rule that it may not even make a recommendation on its own initiative concerning a dispute or situation which is being dealt with by the Council.
There is, however, no limitation on the General Assembly's range of discussion so long as it keeps within the scope of the Charter itself. Happily this restriction to the scope of the Charter was all that resulted from the Soviet Union's protest against unlimited exploration by the Assembly. In so far as it excludes examination of matters "essentially within the domestic jurisdiction of any state" (Article 2, Paragraph 7), it will be difficult enough to observe or enforce. But as a forum for the ventilation of most problems arising out of the relations of states, the General Assembly undoubtedly has a very broad and very useful function. Since the equal participation of all members in actual decision-making is politically impossible, there is much to be said for having one fully representative body which, because its deliberations do not result in binding decisions or call imperatively for action, can range over the whole field of the United Nations' activity. Some will revile it, as they reviled the League of Nations, as a debating society; but a debating society which doesn't set out to be a parliament or government can render great service.
It is easy, however, to exaggerate the operative powers with which the Charter endows even the Security Council. There is in fact no shifting of power away from its present possessors. When called upon by a vote of seven in the Security Council, members of the United Nations will lend to it a portion of their power. The portion is to be determined by agreements which have still to be made between the Security Council and all members. The seven votes will have to include that of each of the five great states. The question whether the Security Council can use any power at all thus depends on the consent of each of these five, and the question whether that consent will be given will in each case be decided like any other question of major national policy. That is the indisputable ground for the statement that the effective operation of the United Nations as keeper of the peace will at all times be conditional on the agreement of the five permanent members of the Security Council.
Now these five members could by their united action keep the peace independently of any general organization. One essential question, therefore, in assessing the merits of the San Francisco structure, is whether the organization will help materially to keep the great powers in agreement or will lend any greater efficacy to their action when they are agreed.
There are several ways in which the existence and activity of the United Nations should assist in keeping agreement among the great powers. Through its economic and social work, as well as through its machinery for the discussion, conciliation, and adjudication of disputes, the new league is calculated to reduce the number of issues developing to the point where they may sharply divide the "Big Five." Even where sharp division is threatened, the fact of having assumed a world-wide obligation of peaceful settlement, and the position of leadership in an association devoted to that purpose, will weigh among the factors making for amiable adjustment. They will not necessarily be prevailing influences; but they will count.
As for efficacy of action once agreement is achieved, the new mechanism will far surpass anything that could be devised on the spur of the moment. There will be a Military Staff Committee which, like the Security Council to which it is responsible, will function continuously. This will have in readiness plans for the strategy and direction of any military action which the Council may decide to be necessary. A mere alliance of the great powers could, it is true, maintain such a committee; but the Military Staff Committee of the United Nations, once the obligatory special agreements with all members have been worked out, will have at its immediate disposal forces, bases, and facilities which a limited alliance could only exact at the price of lives, resources, and precious time. Here is one palpable improvement on the machinery of the League of Nations. Given a modicum of good faith on the part of its leading members, the United Nations will save much misery and pay generous dividends in security.
One incisive question is being asked about these arrangements for preventing aggression. It arises out of the constant possibility that a single great power may veto action. If that happens, would action taken by another member, who is convinced that justice and prudence alike demand military measures, constitute an illegal use of force? If so, is not this an undesirable limitation of the legal freedom even of the greatest members? Certainly no legal enforcement can be undertaken by the organization itself over the veto. But the question is whether action outside the organization also becomes illegal. The Charter does not make it quite clear whether such a case would be covered by the liberty allowed to regional associates (Article 52-54) or by the reservation of "the inherent right of individual or collective self-defense" (Article 51) ; for the legality of action taken under regional arrangements--other than those directed against states on the Axis side in this war--or alleged to be taken in self-defense, is itself subject to the decision of the Security Council. An authoritative interpretation on this point may well be called for in the process of ratification.
The Statute of the new International Court of Justice is an almost verbatim reproduction of the Statute of the Permanent Court of International Justice established in 1920. It preserves the vices of the previous structure. Most notable among these is the idea of representation which finds expression in the institution of ad hoc Judges. Unlike national courts, where a judge with a special interest in one of the parties withdraws from the case, this tribunal not only allows a judge who is a national of one of the parties to remain on the bench but invites a party not represented by a judge in the existing court to appoint one specially for the case in hand. Needless to say, this detracts from the judicial character of the tribunal and will be a standing impediment to the growth of a tradition of impartial detachment.
It is a pity, too, that individuals are not to be admitted as parties before the court. It is open only to states. The danger of frivolous or provocative applications could have been met by preliminary screening. With this continuing limitation, the court can hardly serve for the protection of those "fundamental human rights" which the United Nations are pledged to promote.
These defects, along with the absence of compulsory jurisdiction, stem from that same general reservation of sovereignty that runs, at least for the benefit of the great states, through the entire Charter. They should not blind us to the fact that the previous World Court rendered great service in the peaceful settlement of disputes and in the fuller development and definition of international law, and that the new tribunal can be expected to carry on its excellent work. The addition of the Soviet Union to its supporters may have profoundly beneficial consequences, particularly if this means the full participation of Russia in the development of a more certain law of nations.
In this connection the new rule (Article 94 of the Charter) which allows recourse to the Security Council against a state failing to carry out a judgment of the court will attract much attention. It is clearly intended to add weight to decisions. But it will need to be carefully administered lest it engender a practice of deferring satisfaction of judgment until the winning party lodges complaint with the Council. This could develop into a political appeal over judicial decision, and the resulting position would be worse than the present. For many years, without any organized sanction, the record of fulfillment of awards handed down by international tribunals has been remarkably good. It is greatly to be hoped that the Security Council will not allow the new procedure to degenerate into a mode of reopening cases in a totally different type of forum.
Great hopes attach to the Economic and Social Council, and the statement is heard that this new agency is destined eventually to surpass even the Security Council in importance. Commentators speak as if corresponding machinery had been entirely lacking in the League of Nations. This does scant justice to the battery of social, economic, and financial agencies which under the League rendered highly valued service to the community of nations. It also ignores the fact that this Council will, like similar agencies at Geneva, have to make its way by persuasion. In common with the Assembly under which it acts, it lacks coercive power. Yet, as sharpened and extended at San Francisco, the United Nations social and economic arrangements do promise new initiative and new coordination.
At Dumbarton Oaks no provision at all was made for supervising the government of dependent peoples. This gap was filled at San Francisco by the "International Trusteeship System." This is designed to replace the League in relation to the existing mandated territories, and to exercise an advisory supervision over certain territories detached from enemy states as a result of the war. It will perform the same function for territories voluntarily brought under it by the states now responsible for their administration--hardly a likely contingency.
The most remarkable features in this part of the text are (1) formal recognition by the colonial powers of the obligation to insure the political, economic, social, and educational advancement of all their colonial peoples and (2) their agreement to transmit regularly information to the United Nations on their success in this respect. True, this reporting obligation, which is quite independent of the trusteeship system, is subject "to such limitations as security and constitutional considerations may require"; but it may serve to bring some most wholesome light on the complex details of colonial administration.
Everything considered, the San Francisco Charter merits much more than a grudging support which merely accepts it as, "with all its imperfections," better than nothing. In recent months we have again been furnished with the strongest evidence that for better or worse men still desire to live in separate states each flaunting at least some rags of sovereignty. So long as it continues to be a dominant human desire not to merge in one universal community, it is perhaps an error to describe as "imperfections" those elements in any plan of association which flow inevitably from this reservation. The imperfections would appear to reside in the present disposition of man and their remedy to lie in processes deeper than the mechanics of organization.