Foreign Relations of the United States, 1950, Korea, Volume VII

320/12–550: Telegram

The Secretary of State to the United States Mission at the United Nations

confidential

Washington, December 5, 1950—5 p. m.

Gadel 157. When item of Chi intervention in Korea is included in GA agenda, question may arise as to applicability of Art 12 of Charter.¹ Dept’s views on this question fol.

1. SC is currently seized of agenda item “Complaint of Aggression Upon ROK”. SC has, within meaning of Art 12, exercised and continues to exercise its functions with respect to this problem; adoption of resolutions of June 25 and 27 and extended subsequent consideration makes this clear. SC has also examined question of Chi intervention in Korea, particularly when it considered 6-power res vetoed by Sov. It can be argued however that in respect to this phase of Kor problem, SC is not exercising its functions because it was prevented from doing so by Sov veto of 6-power res. Accordingly, there is reasonable constitutional validity to conclusion that Art 12 imposes no limitation on GA recommendations as to Chi intervention because SC in fact is not exercising its functions in respect thereto. Dept wld not however wish to rely exclusively on this conclusion if other friendly UN Members believe it legally unsound or otherwise tactically undesirable.

2. At same time we do not wish remove from list SC seized items agenda question of Complaint of Aggression Upon ROK. Removal of this entire question wld raise doubt as to legality of continued UN operations under SC resolutions of June 25 and 27 and wld make it difficult without protracted debate to get item back on agenda in present form in event further SC action desirable.

3. Therefore, if it is later decided that Art 12 requires some action by SC before GA can make recommendations, that action shld be confined to procedural decision in appropriate forum that SC is not dealing with that aspect of Kor case relating to Chi intervention.

4. Under present circumstances Dept believes SC meeting for this type action undesirable unless it becomes clear that it is tactically necessary. Certainly there shld be no SC meeting to effect partial removal until after debate has commenced in GA. Meeting of SC at this time wld open door to propaganda speeches and delaying tactics by Russians. Public attention wld be focused on SC meeting in a way that wld be most undesirable. Public wld not understand that sole purpose of meeting was to take procedural step made necessary only by technicalities of Charter. Furthermore, Sov might reverse its position that only procedural vote was necessary and get Council in parliamentary snarl by attempting to use double veto. With China in Pres chair, we cld not be assured that procedures to neutralize double veto wld be properly carried through.

5. As a result of conversations with UK in Washington today it was agreed that both US and UK would make efforts to persuade other dels that SC action not necessary under Art 12 and in any event SC shld not meet for that purpose until just before GA ready to make recommendation.

Acheson

1. The text of Article 12 reads as follows:

   “1. While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

   “2. The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.”