Security Council and International Law in San Francisco, 1945

By Otto Spijkers

Only states officially at war with the Axis powers were invited to come to San Francisco in the spring of 1945 to draft the charter of a new Organization to establish everlasting international peace and security. Delegates came from impoverished and war torn lands to the peaceful and extravagant city of San Francisco, described by a British delegate as “a fantastic world of glitter and light and extravagant parties and food and drink and constantly spiraling talk.” However, the extravagance did not please the delicate taste of the French. A French delegate exclaimed at a monster-dinner, where various orchestras were playing simultaneously in one room: “Je suis arrivé chez les sauvages!”

At the San Francisco Conference, a draft charter of the superpowers (China UK, Soviet Union and the USA) was discussed. One of the more interesting discussions was whether the Security Council was bound to apply international law in maintaining international peace and security. At San Francisco, Egypt proposed an amendment that explicitly stated that the maintenance of international peace and security, which is the prime task of the Council, needed to be done “in conformity with the principles of justice and international law” (see: United Nations Conference on International Organization ‘UNCIO’, vol. 6, p. 23). The Soviet Union disagreed; it believed that the Organization was established to effectively prevent the repetition of a new war, and that the little countries needed simply to trust the superpowers (UNCIO, vol. 1, p. 135). The response of the USA was that the Security Council had two very important functions, and that

these might be characterized somewhat as being the functions of a policeman and the functions of a jury. […] It is our view that the people of the world wish to establish a Security Council, that is, a policeman who will say, when anyone starts to fight, “stop fighting”. Period. And then it will say, when anyone is all ready to begin to fight, “you must not fight”. Period. That is the function of a police man, and it must be just that short and that abrupt; that is, unless at that place we add any more, then we would say “Stop fighting unless you claim international law is on your side”. That would lead to a weakening and a confusion in our interpretation.( UNCIO, vol. 6, p. 29.)

Uruguay agreed that “the world is sick of wars”, but then asked the rhetorical question: must the threat of all wars be cut short at any price? The Uruguayan delegate (Mr. Payssé) answered the question himself:

The mere police function, which pursues the materiality or formality of the order, and which in the popular language of my country is translated into the meaningful expression “You are right, but you are under arrest”, cannot attract our sympathies nor our hopes in the panorama of the reconstruction of the world. The day when there occurs anew the illusion that by sacrificing the rights of the weak in the face of threats by the strong the peace would be saved, on that day the fuse will have been lighted which sooner or later would set off the explosion of war. Injustice is not a propitious atmosphere for peace. (UNCIO, vol. 6, p. 31.)

After this discussion, the Egyptian amendment was put to the vote. The result: 21 for, 21 against; however, for amendments to be adopted in San Francisco, a two-thirds majority was required. The Rapporteur of the relevant Commission hastened to explain this somewhat surprising result: he said that none of the delegates were against justice, but that they felt that “adding “justice” after “peace and security” brings in at that juncture of the text a notion which lacks in clarity.” (UNCIO, vol. 6, p. 394.) The United States, probably regretting the tone of the previous statement, tried to reassure the smaller states a few days later, in a subsequent meeting of the Commission:

We are here [in San Francisco], first of all, to find ways and means to maintain international peace and security throughout the world. But above and beyond that most desirable objective, we are here to lay the first foundation of a new world civilization which in its international relations shall be based upon law and justice and brotherhood, rather than upon brute force. (UNCIO, vol. 6, p. 118.)

However, the relevant article in the UN Charter does not have the sought-after reference to international law. In fact, the Security Council can take measures, in order to maintain international peace and security, obliging member-states to act in violation of international agreements.

Both pictures are taken from the UN Website. The first is of President Truman arriving at the San Francisco Conference; the second is of a "Big Five" meeting taking place at the San Francisco Conference.