§ 2.41 p.m.
§ THE MARQUESS OF SALISBURYMy Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
§ [The Question was as follows:
§ To ask Her Majesty's Government whether they are aware that continuing doubts are being expressed by those who speak with legal authority as to the legality of Her Majesty's Government's action in referring the Rhodesian problem to the Security Council of the United Nations under Chapter 7 of the Charter; and to ask further, in view of this fact, whether they will bring this matter to the arbitrament of the International Court at The Hague.]
886§ THE LORD CHANCELLOR (LORD GARDINER)My Lords, the Question which the noble Marquess has asked is one of obvious importance requiring a full Answer. I hope, therefore, that your Lordships will forgive me if my Answer is a little longer than is usual in reply to a Starred Question.
I am aware that some doubts have been expressed in certain quarters about the legality of Her Majesty's Government's action in referring the Rhodesian problem to the Security Council and about the legality of the Security Council's action on this problem. These doubts betray a fundamental misconception about the provisions of the United Nations Charter and it may be helpful if I attempt to clarify the position.
Under Article 35 of the Charter, any member of the United Nations may bring to the attention of the Security Council any dispute or any situation which might lead to international friction or give rise to a dispute. Under Article 39 the Security Council has power to determine the existence of any threat to the peace, breach of the peace or act of aggression. These provisions have been the basis for Her Majesty's Government's action in taking the matter to the Security Council.
The Charter leaves to the discretion of the Security Council the decision as to what constitutes a threat to peace, or breach of the peace, or an act of aggression. This is clear from its wording. That this was also the intention of those who framed the Charter is clear from the records of the Preparatory Commission which in San Francisco in 1945 approved the final text. These records do not bear out the contention of the noble Marquess, made in the debate on December 8, that a threat to peace means only a threat of aggression by one independent and sovereign State against another. Legally speaking, it is open to the Security Council to decide that a situation, whether it involves action by a State or not, constitutes a threat to peace.
The San Francisco Conference rejected all proposals to restrict the Council's freedom of action by specific provision in the Charter, and expressly, as its records show, decided to leave to the Security Council the entire decision as to what constitutes a threat to peace. There is no basis for maintaining that a threat to the 887 peace can arise only from a dispute between States. A threat can arise as much from a situation within a State as from a dispute between States, and it is for the Council to decide what action under the Charter is appropriate.
It is, of course, true that in its determination of a threat to the peace, and in its decision about what measures are called for, the Council will be largely influenced by political considerations. But this is natural as it is a political organ and not a law court. These powers were conferred on a political organ, as distinct from a court, precisely in order that a discretion should be exercised in the light of political considerations.
As regards the adoption of the present resolution, I have seen doubts expressed as to whether it was validly adopted in accordance with the requirements of Article 27 of the Charter, bearing in mind that two Permanent Members of the Security Council abstained. These doubts are also unfounded. The consistent practice of the Council, Which might almost be called United Nations case law, since the earliest days has been to interpret the phrase "concurring votes of the Permanent Members" in Article 27(3) to mean the votes of those members which actually cast a vote. An abstention in Security Council practice is not regarded as casting a vote, and has not been regarded as amounting to a veto. All the Permanent Members of the Council have accepted the Council's practice in this regard and so also for a great many years have the non-Permanent Members. No member of the Security Council which adopted this resolution has queried the validity of its adoption.
Finally, some attempt has been made to cast doubt on the exact basis on which the Security Council was proceeding when it imposed selective mandatory sanctions in December last year. As the resolution makes clear, the Security Council was acting in accordance with Articles 39 and 41 of the Charter and called on all members under Article 25 of the Charter to carry out its decisions. In these circumstances Her Majesty's Government see no need to bring this matter before the International Court of Justice, even if they were able to do so.
§ THE MARQUESS OF SALISBURYMy Lords, the Answer which has just been given by the noble and learned Lord, the Lord Chancellor, for which I am very grateful, is an extremely full one, and your Lordships will not, I am sure, expect me to ask questions to-day on the details. But arising from his Answer, I should like to ask one question. Is the noble and learned Lord aware that on November 1, when the Government's decision to refer the question of Gibraltar to the International Court was under discussion in your Lordships' House, the noble Lord, Lord Beswick, explaining the reasons for the Government's decision, used these words:
What I have suggested as the sensible and civilised way of getting these legal matters settled, in the best interests of the people of Gibraltar as well as ourselves, is to have the matter properly considered by the International Court."—[OFFICIAL REPORT, Vol. 277 (No. 61), col. 502; 1/11/66.]What I want to ask is: If that is the Government's view, why do they adopt in this particular case what is by their own definition a senseless and uncivilised attitude towards Rhodesia?
§ THE LORD CHANCELLORMy Lords, we are satisfied, as I take it all the members of the Security Council are, that what the Security Council did was fully within its powers. If any other State wishes to take the matter to the International Court that, I should have thought, was a matter for that State.
§ THE MARQUESS OF SALISBURYMy Lords, but what I was asking the noble and learned Lord was: Why was there this differentiation between the two cases? Is not the real explanation for it that the Government know very well that, if they did take the matter to the International Court, they would get an adverse verdict?
§ THE LORD CHANCELLORNo, my Lords. The distinction is that, in the case of Gibraltar, there was an existing dispute between us and Spain as to the construction of a Treaty between us. There is no such dispute here.
§ LORD HARLECHMy Lords, the noble and learned Lord referred to those who were responsible for the formulation of the Charter. Is he aware that the former Secretary of State of the United States, Mr. Dean Acheson, who not only 889 had a great part in the formulation of the Charter but is also a very distinguished international lawyer, has cast serious doubts on the legality of the position taken by the Security Council over this matter? Furthermore, I think there is still great doubt in all our minds as to whether this particular interpretation of "a threat to peace" will really stand up.
Is the noble and learned Lord also aware that the Prime Minister, in November, 1965, quite clearly stated that he did not regard the situation in Rhodesia as falling under Chapter 7 of the Charter? How is it that a year later, when there has not been any substantial change in the position in Rhodesia, we now act under Chapter 7 of the Charter? I think these matters require very careful consideration and, in spite of the very full Answer which has been given this afternoon, if the Government refuse to refer the subject to the International Court I think there might be a case for issuing a White Paper on the matter.
§ THE LORD CHANCELLORMy Lords, I am not quite sure whether that was a question, but on the first part of the noble Lord's observations I would say that no doubt on this subject, as on most subjects in the world, there are individuals who have different views, including, it may be, individuals in the United States; but the question is not one on which any member of the Security Council, including the, United States itself, has any doubt. In answer to the second part of the noble Lord's observations, in the case of the previous resolution of November 20, 1965, the Security Council, in the preamble, found that the continuance in time of the situation then existing would constitute a threat to peace; and the Council decided, in its resolution of December 16 last, that the present situation in Southern Rhodesia constitutes a threat to international peace and security.
§ THE MARQUESS OF SALISBURYBut from whom did the threat come? It was not from Rhodesia, who would wish only to remain within her own boundaries.
§ THE LORD CHANCELLORYour Lordships may think that if the matter is to be debated further the debate which we shall in any case be having on Monday next might prove an appropriate time.
§ LORD PARGITERMy Lords, may I ask my noble and learned friend whether it would not have been within the power of the Security Council to reject the approach that Britain made if it had been thought there was any doubt about it?
§ THE LORD CHANCELLORYes, that is certainly so, my Lords; and, of course, an Advisory Opinion of the Court can be obtained only either by the Security Council or by the Assembly.