1 The text of the ruling was as follows:

On the basis of the consistency with which the General Assembly has regularly refused to accept the credentials of the delegation of South Africa, one may legitimately infer that the General Assembly would in the same way reject the credentials of any other delegation authorized by the Government of the Republic of South Africa to represent it, which is tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work.

UN Doc. A/PV.2281, Nov. 12, 1974 at 76. Also in Resolutions of Legal Interest Adopted by the General Assembly at its Sixth Special Session and Twenty-Ninth Regular Session 21 (1974). See also 29 GAOR, Supp. 31, at 10–11, UN Doc A/9631(1974), where the text of the ruling is, however, not reproduced.

2 G.A. Res. 3379 (XXX), Nov. 10, 1975.

Resolutions of Legal Interest Adopted by the General Assembly at its Seventh Special Session and Thirtieth Regular Session 68 (1975). At the close of the thirtieth session on December 17, 1975, the U.S. representative to the United Nations declared:

None will learn with surprise that for the United States, at very least, the 30th General Assembly has been a profound, even alarming disappointment. This splendid hall has, since the opening of the Assembly, been repeatedly the scene of acts which we regard as abominations We have not sought to conceal this view. Nor is it our view alone. Throughout the world individuals and governments have observed this General Assembly with dismay.

74 Dept. State Bull. 139 (1976).

3 UN Doc. S/PV.1856, Nov. 30, 1975, at 16.

4 Id. at 12–15. See also similar statements by Costa Rica, Japan, France, the United Kingdom, Italy, and Sweden, id. at 31, 33–35, 37, 41, 44–45, and 56.

5 Id. at 64–65. The Soviet representative also referred to G.A. Res. 3375 (XXX) (see infra note 40), as did the representative of Tanzania. Id. at 58.

6 The contractual underpinnings of the disengagement were recalled by the representative of Costa Rica:

The action that it [the Security Council] has taken today cannot be separated from the background which caused it to be taken. The preceding action concerned the Agreement on Disengagement between Israeli and Syrian forces, on which the Secretary-General submitted a report to the Council …

The Agreement itself, which is not restricted by any deadline, was the result of the sovereign will of the signatory parties and represents a commitment to be observed by both parties. In this connexion, let us recall the final paragraph of Annex B of that Agreement, which reads:

“Israel and Syria will support a resolution of the United Nations Security Council which will provide for the UNDOF contemplated by the agreement. The initial authorization will be for six months subject to renewal by further resolution of the Security Council

…” This implies that the Disengagement Agreement was not conditioned by any given deadline, that the renewal of the mandate is something to which the Security Council must agree, although such decisions cannot jeopardize the Agreement nor subject it to conditions. This emerges clearly from the very text of the Agreement.

Id. at 29–30. For the Secretary-General’s report, see UN Doc. S/11302/Add. 1, May 30, 1974. The quoted paragraph is at id. 4.‘

7 29 Scor Res. and Dec. 4 (1974).

8 11 GAOR, Annexes, Agenda Item 66, UN Doc. A/3375 (1956).

9 11 GAOR, Supp. 17, at 61, UN Doc. A/3572 (1956).

10 Second and final Report of the Secretary-General on the plan for an emergency UN Force, Nov. 6, 1956. Italics in original. GAOR, 1st Emerg. Spec. Sess., Annexes, Agenda Item 5, UN Doc. A/3302 (1956). The Secretary-General indicated that the situation might be different if the Security Council were to use the force “within the wider margins provided under Chapter VII” of the Charter. The present UNEF was established, as was UNDOF, by the Security Council but whether under Chapter VII is a matter of construction.

11 Spec. Report of the Secretary-General, May 18, 1967. 22 GAOR, Annexes, Agenda Item 21(b), UN Doc. A/6669 (1967); and Report of the Secretary-General of the withdrawal of the emergency force, June 26, 1967, GAOR, 5th Emerg. Spec. Sess., Annexes, Agenda Item 5, UN Doc. A/6730 (1967). For relevant excerpts from these reports, as well as those cited supra notes 8 and 10, see R. Higgins, United Nations Peacekeeping 1946–1967 (1969), particularly at 263, 337, 339, 342–43, 355. Reviewing the constitutional basis of the 1956 UNEF, Higgins disagrees with the viethat “Egypt was legally completely unfettered in demanding UNEF“s withdrawal.” She states:

There are strong grounds for arguing that Egypt voluntarily tempered reliance on “sovereign consent” by acknowledging that good faith would be relevant if ever she wished UNEF to withdraw before its tasks were completed. Its tasks were not yet completed, and in May 1967 it would have been legally appropriate to call the good faith of Egypt in question

Id. 367.

12 28 Scor Res. and Dec. 11 (1973).

13 Ibid. For the Secretary-General’s report, see 28 SCOR Supp. for Oct.-Dec. 1973, at 91, UN Doc. S/11052/Rev. 1, Oct. 26, 1973.

14 After the vote on Resolution 341(1973), the representative of Egypt announce that his government had “accepted Security Council resolution 340(1973) as a first step in the implementation of the decisions adopted by the Security Council” and declared the readiness of his government “to co-operate with the United Nations in the implementation of Security Council resolutions 338(1973), 339(1973) and 340(1973).” He also stated that:

In giving its consent to the entry and presence of the United Nations Emergency Force on Egyptian territory, the Government of Egypt is exercising its sovereign rights to enable the United Nations to proceed with this first step and temporary measure towards putting an end to the aggression committed against Egypt since 1967.

UN Doc. S/PV.1752, Oct. 27, 1973, at 36. See also UN Doc. S/PV.1750, Oct. 25, 1973 and the Egyptian statement in UN Doc. S/11055, Oct. 27, 1973, 28 SCOR Supp. Oct.-Dec. 1973, at 92. The legal significance of the Egyptian statement is not clear. It was not endorsed by the Security Council.

15 This seems to have been the understanding of the United States and the Soviet Union in their statements before the adoption of Resolution 350(1974) supra note 7. The former declared: “the general principles which guided the United Nations Emergency Force clearly apply to all aspects of the United Nations Disengagement Force, including the assurances of its continued effective functioning for the duration of the mandate established in the draft resolution.” UN Doc. S/PV.1774, May 31, 1974, at 4–5. The Soviet representative noted his government’s approval of the statement of the Secretary-General “to the effect that the United Nations Disengagement Observer Force will be created on the basis of the general principles which were presented by the Secretary-General” in his previous report. Id. at 11. The report referred to is UN Doc. S/11052/Rev. 1, supra note 13.

16 UN Doc. S/PV.1856, Nov. 30, 1975, at 16.

17 See UN Doc. S/11889, Nov. 30, 1975.

18 Thus, Costa Rica, Italy, and the United States. UN Doc. S/PV.1856, Nov. 30, 1975, at 31, 46, and 53.

19 Id. at 37. Similarly the United Kingdom considered “that in accordance with the established procedures and rules of the Council the question of participation in any meetings of the Council is a matter which has to be decided at the time of those meetings themselves.” Id. at 41.

20 Id. at 46.

21 Ibid. 22 Repertoire of the Practice of the Security Council 1946–1951, UN Doc. ST/PSCA/1 (1954), Case 53, at 114. See also Case 64, id. at 119.

23 Case 93, id. at 131–32.

24 Ibid.

25 UN Doc. S/PV.1859, Dec. 4, 1975, at 3.

Rule 37 reads:

Any Member of the United Nations which is not a member of the Security Council may be invited, as a result of the decision of the Security Council, to participate, without vote, in the discussion of any question brought before the Security Council when the Security Council considers that the interests of that Member are specially affected, or when a Member brings a matter to the attention of the Security Council in accordance with Article 35(1) of the Charter.

Rule 39 reads:

The Security Council may invite members of the Secretariat or other persons, whom it considers competent for the purpose, to supply it with information or to give other assistance in examining matters within its competence.

Since rule 38 lays down the rights of a member invited under rule 37, it may be useful to quote its text.

Any Member of the United Nations invited in accordance with the preceding rule or in application of Article 32 of the Charter to participate in the discussions of the Security Council may submit proposals and draft resolutions. These proposals and draft resolutions may be put to a vote only at the request of a representative on the Security Council.

26 UN Doc. S/PV.1859, Dec. 4, 1975, at 3.

27 Id. at 6.

28 Id. at 11–12. He explained his doubts and reservations saying:

First of all, no one can fail to take for granted that so far this Organization is an organization of sovereign States. The rights, duties and privileges and responsibilities set and conceived within the United Nations are linked to the very essence of statehood. Whatever feelings, consideration or sympathy we may have for a given organization, whenever some form of relationship is being established between that organization and the United Nations we must accept the fact that there is an inherent difference between it and a sovereign State, to the extent that it lacks statehood.

Id.at 12.

29 Id. at 14–15.

30 Id. at 38, 39–40.

31 Id. at 8–10.

32 Id. at 17, 21, 22–25.

33 Id. at 26.

34 Id. at 41.

35 See Repertoire, supra note 22, at 116–18.

36 Id. at 102 and Case 55 at 115, Case 56 at 116.

37 Id. Case 56 at 116. See also Case 52 at 114.

38 Text at supra note 22. Repertoire, Case 52 at 114 and Case 64 at 119. In Case 55 ﹛id. at 115) it was debated whether a “general invitation” should be extended to the People’s Republic of China

39 Case 59, id. at 117–18.

40 In the Security Council the representative of Iraq argued that rule 39 which refers to “other persons” could not be applied inasmuch as the PLO had been “granted an official status within the United Nations—namely, the status of permanent observers, as the sole legitimate representative of the Palestinian people,” that the rules of procedure did not provide for this category, and that in the only analogous case, the invitation to the permanent observers from South and North Vietnam, the invitation “was extended to them to come and appear before the Council without reference to any rule of the provisional rules of procedure.” UN Doc. S/PV.1859, Dec. 4, 1975, at 16, 17. The United States representative rejected the analogy on three grounds: first, the invitation was Umited to making statements and “not to participate fully“; secondly the invitation was “extended on a ‘no-objection’ basis,” there were no objections in the case of the two Vietnams whereas “there are objections in this case“; and thirdly, there was no reason to refer to any rule because “we knew under what rule we acted— the fact is that the legal basis of the invitation was rule 39.” Id. at 27. This provoked comments from the representatives of Iraq, the Soviet Union, and Mauritania, which held the presidency at the time of the Vietnam invitation, and a clarification by the United States. Id. at 32–38.

The allergy of the Security Council to the citation of specific articles of the Charter or rules of procedure is too well known to require comment. All that needs to be said is that the observer status of the PLO was completely irrelevant. General Assembly Resolution 3237 (XXIX), November 22, 1974, invited the PLO “to participate in the session and the work of the General Assembly in the capacity of observer,” and in all international conferences held under the auspices of the Assembly and other organs of the United Nations. Resolution 3375(XXX), November 11, 1975, to which the Soviet Union referred (id. at 21), called for the invitation of the PLO “to participate in all efforts, deliberations and conferences on the Middle East which are held under the auspices of the United Nations, on an equal footing with other parties, on the basis of resolution 3237(XXIX).” Whatever the intention of the Assembly may have been, it could not possibly have intended to amend the Charter or to dictate to the Security Council how to conduct its business which is governed by the Charter and its rules of procedure.

41 At the end of his speech, the representative of the PLO said to the absent U.S. representative that he wanted “to assure him that the so-called terrorists of today will be tomorrow the rulers, with their Jewish brothers, of liberated Palestine—a Palestine for both Arabs and Jews, free of ethnic or religious discrimination, a Palestine free of racist Zionism.” UN Doc. S/PV.1859, Dec. 4, 1975, at 79.

42 See Gross, L., The Question of Laos and the Double Veto in the Security Council, 54 AJIL 118 (1960)CrossRefGoogle Scholar; and infra p. 488.

43 UN Doc. S/PV.1859, Dec. 4, 1975, at 13. It may be objected that Italy’s contention is too narrow and categorical in view of the dictum of the International Court of Justice in Barcelona Traction(Second Phase). In the context of a state’s obligations with respect to foreign investments and foreign nations, the Court observed: These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the internationalcommunity as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have an interest in their protection, they are obligations erga omnes. [1970] ICJ Rep. 3, at 32, para. 33. Apart from other considerations, this dictum is qualified by the words “all States” and is therefore inapplicable here as the PLO neither is nor claims to be a state. In so far as states are concerned, Articles 31 and 32 lay down the conditions for their participation in the Security Council when it is seized of questions or disputes affecting their interests.

44 U N Doc. S/PV.1859, Dec. 4, 1975, at 13.

45 “There is a further consideration,” stated the representative of the United Kingdom, “to which we attach considerable weight, that the essence of the complaint which is now before the Security Council is that of a complaint concerning the infringement of the territorial sovereignty of a Member State, Lebanon, which will itself be taking full part in our proceedings.” Id. at 39–40.

46 Id. at 22–25. Italics supplied.

47 Id. at 31. Italics supplied.

48 According to the Lebanese representative, “8 Lebanese and 78 Palestinians were killed in northern Lebanon; 2 Lebanese and 106 Palestinians were injured … In Nabatiyeh in the south, 4 Palestinians are known to have been killed along with 12 Lebanese. Nine Lebanese and 11 Palestinians were injured.” Id. at 46.

49 Ibid.

50 Id. at 76. Italics supplied.

51 In this context, reference may be made to a dispatch from Beirut entitled Lebanese Christians Seize Palestinian Refugee Camp, by J. Markham in N.Y. Times, Jan. 15, 1976, at 3. It is reported that “the rightists were ‘sorting out’ the camp’s residents. Its registered inhabitants would be permitted to stay, a spokesman said, but ‘foreign’ guerrillas would be ‘disarmed and sent back where they came from’.”

52 G.A. Res. 2625(XXV), Oct. 24, 1970. 25 GAOR Supp. 28, at 121, UN Doc. A/ 8028 (1970). The two quoted paragraphs are in the section entitled: “The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.“

53 There is never a perfect analogy but the Eichmann case may be recalled in which the Security Council pursued a rational course in distinguishing form from substance. In that case, the Council on June 23, 1960 adopted Resolution 138(1960) in which it declared that the infringement of the sovereignty of a member state caused “international friction” and “may, if repeated, endanger international peace and security,” and called on Israel “to make appropriate reparation” but did not ask for the return of Eichmann, as requested by Argentina. 15 Scor Res. and Dec. 4 (1960). For an analysis of this case, see Silving, H., In Re Eichmann, 55 AJIL 307 (1961)CrossRefGoogle Scholar.

54 E.g., the Soviet Union, UN Doc. S/PV.1859, at 21, 22–25, 33–35.

55 Report of the Secretary-General on “Question of Invitations to Certain Regional Organizations Invited to Attend Previous Session of the Council (ECOSOC),” UN Doc. E/2028, June 20, 1951, at 3.

56 See supra note 40.

57 See text at supra note 16.

58 UN Doc. S/PV.1870, Jan. 12, 1976, at 11.

59 See supra p. 475.

60 The “rights” of a “Member State” invited under rule 37 specifically do not include the right to vote. Under rule 38, a member state “may submit proposals and draft resolutions” but they “may be put to a vote only at the request of a representative on the Security Council.” See supra note 25.

For a concise statement of “important differences” between Article 32 of the Charter and rule 39, see Kerley, E., The Powers of Investigation of the United Nations Security Council, 55 AJIL 892, at 917, n. 88 (1961)CrossRefGoogle Scholar. One of these differences is that: “Persons invited under Rule 39 attend as sources of information rather than as participants.” Ibid.

61 UN Doc. S/PV.1870, Jan. 12, 1976, at 57. Owing to the changed composition of the Council the vote was eleven to one, with three abstentions.

62 Id. at 27 (the representative of the USSR).

63 Id. at 13–15, 16.

64 Id. at 43, 44–45.

65 Id. at 59–60.

66 There is no question that the United States was fully aware of the gravity of the matter. Thus at one point its representative wondered whether the matter was one of procedure or of substance but while conceding that it was one of procedure considered it to be a case of “erosion of procedure” and “of fundamental concern to us.” Id. at 51, 52. At another point he said:

What we may very well have to come to judge and are seeing here today is the commencement of an effort to subvert the open and public proceedings of the Security Council and replace them by the rule of an extra-legal, semi-secret Apparat, which is inaccessible to the membership of the United Nations and inaccessible to the processes of inquiry. There is a term for this: the term is “totalitarianism.”

Id. at 52. He also recalled that his “Secretary of State has spoken of the prospect that this institution will end as an empty shell.” Id. at 53–55.

67 This was aptly characterized by the representative of the United Kingdom in the debate on the credentials of South Africa at the twenty-ninth session of the General Assembly on November 12, 1974. Addressing himself to those who “suggested that the delegation of South Africa should be excluded from participating in our future proceedings,” he stated:

Let me start by making the fundamental, if obvious, point that this Organization is governed by the Charter. It cannot, consistently with itself and with the role which it is designed to play in international affairs, disregard that Charter. We are either a law-abiding, law-respecting body or we are nothing, a mere talking shop. If we put aside the Charter whenever its provisions may seem to a majority of us even, indeed, to a preponderant majority of us—inconvenient, then we lose all claim to authority and to credence. It short, the Charter is and must be the constitutional foundation for all that we do. Respect for the Charter must permeate all our decisions. That much, I trust, is common to all of us here today.

UN Doc. A/PV.2281, Nov. 12, 1974, at 23–25. As the ruhng of the President of the Assembly (see supra note 1) demonstrates, this “trust” was clearly misplaced

68 He said: “With this background in view, I should like to put forward the proposal …” UN Doc. S/PV.1870, Jan. 12, 1976, at 11.

69 Article 10(2) of the Statute provides the only exception to the voting rule in Article 27(3) of the Charter.

On the subordination of the rules of procedure to the Charter, see Fitzmaurice, , The Law and Procedure of the International Court of Justice: Treaty Interpretation andCertain Other Treaty Points, 28 Brit. Y.B.I.L. 1, at 22 (1951)Google Scholar and Jessup, P. C., Parliamentary Diplomacy, 89 Hague, Rec. Des Cours 201, at 204 (1956–1)Google Scholar.

70 Doc. 852, III/l/37(i), 11 UNCIO Docs 713 (1945).

71 See Gross, L., The Double Veto and the Four-Tower Statement on Voting in the Security Council, 67 Harvard L.R. 251, particularly at 256-62 (1953).Google Scholar

With reference to the Statement, Stone observed: “Insofar as it was an unrepudiated basis of the drafting of [Article 27], it is a proper, and indeed virtually authoritative, means of interpretation.” J. Stone, Legal Controls of International Conflict 213 (1954). But see Fitzmaurice that “minutes, declarations, resolutions …, having the character of an agreed interpretation should be regarded, if not as part of the treaty itself, then as ancillary thereto, and as part of the complex of instruments produced by the conference in connection with the treaty it drew up.” Supra note 69, at 12–13. Italics supplied. Quere: agreed by whom? See also S. D. Bailey, Voting in the Security Council 18 (1969) and B. V. Cohen, the United Nations 11 (1961).

72 3 SCOR, No. 71, at 42 (1948), quoted in Gross, supra note 71, at 266.

73 See Cohen, supra note 71, at 12, who disagreed with the proposition in the text.

74 14 SCOR, 848th meeting 12 (1959).

The draft resolution sponsored by the United States, the United Kingdom, and France read:

The Security Council decides to appoint a sub-committee … and instructs this sub-committee to examine the statements made before the Security Council concerning Laos, to receive further statements and documents and to conduct such inquiries as it may determine necessary and to report to the Security Council as soon as possible.

UN Doc. S/4214, Sept. 7, 1959. Text the same as adopted, see 14 SCOR, Supp. July-Sept. 1959, UN Doc. S/1416, Sept. 8, 1959. Also cited in Gross, supra note 42, at 118.

While the setting up of a sub-committee was a procedural matter, the conduct of inquiries was, in the Soviet view, not a procedural matter and therefore the whole draft resolution was not procedural. See id. at 122–24.

75 14 SCOR, 848th meeting 13 (1959).

76 Id. at 13–14. Cited in Gross, supra note 42, at 118. For a defense of the procedure in the Laos case, see Kerley, supra note 60, at 216–18.He distinguishes between investigation under Article 34 for the sole purpose of determining the Council’s competence which is subject to Article 27(3) and the Council’s “general procedural capacity to receive information from persons willing to provide it as part of its consideration of at 218. This “general procedural capacity” appears to be derived from the Council’s powers of discussion and consideration as well as from rule 39 of the Council’s rules of procedure. Id. at 205–07.

77 It may be noted that in the practice of the Security Council the preliminary question may be raised before or after the vote on the contested draft resolution or motion.

78 See Gross, supra note 71, at 270–76.

79 See text at footnote 69 supra.

80 Rule 30 reads:

If a representative raises a point of order, the President shall immediately state his ruling. If it is challenged, the President shall submit his ruling to the Security Council for immediate decision and it shall stand unless overruled.

81 It is unnecessary to consider here Article 18(3) of the Charter which refers to a different body, with a different composition, and above all with different functions.

82 See Gross, supra note 71, at 279.

Cohen disagrees with this view and welcomed the procedure in the Laotian question as a means “to limit any abuse in the exercise of the so-called double veto.” Supra note 71, at 13. In Stone’s view:

the truth is that the approach via the Four Power Statement sanctifying the double veto, and that via Rule 30 excluding it, are competing legal starting points… . These competing starting points might, of course, yield opposite results on a particular matter if both were simultaneously applied to it. In fact both will not be attempted to be applied simultaneously: the effect of the competition of starting points is merely that the choice between them is determined by politics, not by law. It is for this reason that the disposition of such matters in the future will depend on which Member of the Security Council is President at the time. It is this officer who makes the choice and his choice will be determined by the political position of his State.

Supra note 72, at 226. While there is truth in Stone’s last sentence, in the present submission, the starting points are not both legal: one based on Article 27 is legal, the other based on rule 30 is not. As to Cohen’s position it may be observed that it was presumably based on the comfortable assumption that the liberation of the Council from the double veto was in the interest of the United States. This is certainly not so, if it ever was so, in a long-range calculation of the national interest.

83 See statement by the representative of the United Kingdom, supra note 67.

84 A change in the U.S. attitude as exhibited on the Laotian question is implied in the text.

It may be pointed out that the attitude of the United States is not unchangeable. Thus in connection with voting in the Security Council on the admission of the two Vietnams, the United States adopted a stand which at best is only linguistically different from the stand of the Soviet Union prior to 1955 on the simultaneous admission of Western and Soviet backed candidates for membership in the United Nations. The International Court of Justice ruled in 1948 that a member “is not juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of said Article” (Article 4 of the Charter). [1948] ICJ Rep. 57, at 65. Yet when the Security Council rejected the inclusion in its agenda of the application of the Republic of Korea, the United States vetoed the applications of the two Vietnams. Its representative stated that the United States “would have voted for the admission of the Republic of South Korea, the Democratic Republic of Viet-Nam, and the Provisional Revolutionary Government of South Viet-Nam” but that it would “have nothing to do with selective universality, a principle which in practice admits only new members acceptable to the totalitarian States.” UN Doc. S/PV.1836, Aug. 11, 1975, at 58–60; see also UN Doc. S/PV.1834, Aug. 6, 1975, at 41 and UN Doc A/PV.2354, Sept. 19, 1975, at 87–91.

At a later meeting of the Security Council, the U.S. representative recalled the Court’s ruling that “package deals” were not in order but applied it to the other side which linked the admission of the Republic of Korea “to the case of North Korea.” He expressed the view that the Security Council is not “entitled, authorized or wise in linking these two matters in the face of the judgment of the Court and, indeed, of our recent well-established practice.” UN Doc. S/PV.1842, Sept. 26, 1975, at 53–55. The United States then vetoed again the applications of the two Vietnams. UN Doc. S/1868, Sept. 30, 1975, at 23.

85 See supra note 66.