Law, Politics, and the Security Council: An Inquiry into the by Tae Jin Kahng

By Tae Jin Kahng

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Additional info for Law, Politics, and the Security Council: An Inquiry into the Handling of Legal Questions Involved in International Disputes and Situations

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X8 and 22. , para. 27. , para. 29. , para. 31. a Of the five members of the Sub-Committee, Austialia, Brazil, China, France and Poland, two members made reservations, The representative of Brazil reserved his position, as a matter of principle, regarding the recommendation {b); and the representative of Poland, disagreeing with the majority, expressed the opinion that "potential threat" to the peace too should come under the purview of Article 39 of the Charter. 1 2 DOMESTIC JURISDICTION 35 it should be pointed out quite clearly that Article 2, paragraph 7, of the Charter does not say that the United Nations shall not intervene in any matter which does not fall within Chapter VII.

No. I6, Annex 40. a member of the Council. , p. 16:zo. , pp. 161g-16:zo. For this view, generally see Charles C. R. (1949), pp. 955-966. R. (1949), pp. 344-361. 8 Loc. cit. , pp. 16:Z3-16:Z4. 38 THE COMPETENCE OF THE SECURITY COUNCIL representative of Australia submitted a draft resolution 1 which read as follows: The Security Council, Having determined that such hostilities constitute a breach of the peace under Article 39 of the Charter of the United Nations, Calls upon the Governments of the Netherlands and of the Republic of Indonesia, under Article 40 of the Charter of the United Nations, to comply with the following measures, such measures to be without prejudice to the rights, claims or position of either party; (a) To cease hostilities forthwith, and (b) To settle their disputes by arbitration in accordance with article XVII of the Linggadjati Agreement, signed at Batavia on 25 March 1947.

Georg Schwarzenberger considers that the time for the United Kingdom to have such a 1 8 PROBLEMS OF HANDLING 2I In addition to these general problems arising from differences among nations in their legal outlook, there are some specific problems which actually arise in the handling of legal questions by the Security Council. The problems manifest themselves as the question of assigning proper values respectively to legal element and to political element within the context of a dispute. When the question is primarily related to substantive rights and duties of parties, the normal course of action which under the Charter the Security Council should take would be to recommend the reference of the dispute to the Court.

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