Is the Acheson Plan Constitutional?
| Published date | 01 December 1950 |
| Author | Hans Kelsen |
| Date | 01 December 1950 |
| DOI | 10.1177/106591295000300402 |
| Subject Matter | Articles |
512
IS
THE
ACHESON
PLAN
CONSTITUTIONAL?*
HANS
KELSEN
University
of
California
*The
Western
Political
Quarterly
publishes
this
article
as a
document
written
by
a
leading
international
-
jurist
without
associating
or
disassociating
itself
with
the
serious
criticism
of
United
States
official
policies
implied
in
parts
of
Professor
Kelsen’s
interpretation.
HE
SO-CALLED
Acheson
Plan,
which
is
contained
in
a
proposal
submitted
to
the
United
Nations
General
Assembly
by
the
United
States,
Great
Britain,
France,
Canada,
Uruguay,
the
Philippines
and
Turkey,
was
adopted
by
the
General
Assembly
on
November
3,
1950.
It
aims
at
&dquo;Uniting
for
Peace.&dquo;
The
main
provisions
of
the
resolution
adopted
by
the
General
Assembly
are:
1.
&dquo;If
the
Security
Council,
because
of
lack
of
unanimity
of
the
permanent
members,
fails
to
exercise
its
primary
responsibility
for
the
maintenance
of
international
peace
and
security
in
any
case
where
there
appears
to
be
a
threat
to
the
peace,
breach
of
the
peace,
or
act
of
aggression,
the
General
Assembly
shall
consider
the
matter
imme-
diately
with
a
view
to
making
appropriate
recommendations
to
Members
for
collective
measures,
including
in
the
case
of
a
breach
of
the
peace
or
act
of
aggression
the
use
of
armed
force
when
necessary,
to
maintain
or
restore
international
peace
and
security&dquo;;
2.
The
General
Assembly
&dquo;recommends
to
the
Members
of
the
United
Nations
that
each
Member
maintain
within
its
national
armed
forces
elements
so
trained,
organized
and
equipped
that
they
could
promptly
be
made
available,
in
accordance
with
their
respective
constitutional
processes,
for
service
as
a
United
Nations
unit
or
units,
upon
recommendation
by
the
Security
Council
or
General
Assembly,
without
prejudice
to
the
use
of
such
elements
in
the
exercise
of
the
right
of
individual
or
collective
self-
defense
recognized
in
Article
51
of
the
Charter&dquo;;
3.
The
General
Assembly
&dquo;establishes
a
Peace
Observation
Commission,
which
for
the
calendar
years
1951
and
1952
shall
be
composed
of
14
Members ...
and
which
could
observe
and
report
on
the
situation
in
any
area
where
there
exists
international
tension
the
continuance
of
which
is
likely
to
endanger
the
maintenance
of
international
peace
and
security&dquo;;
4.
The
General
Assembly
&dquo;establishes
a
Collective
Measures
Committee
consisting
of
14
Members ...
and
directs
the
Committee,
in
consultation
with
the
Secretary-
General
and
with
Member
States
as
the
Committee
finds
appropriate,
to
study
and
make
a
report
to
the
Security
Council
and
the
General
Assembly,
not
later
than
September
1,
1951,
on
methods ...
which
might
be
used
to
maintain
and
strengthen
international
peace
and
security
in
accordance
with
the
Purposes
and
Principles
of
the
Charter, taking
account
of
collective
self-defense
and
regional
arrangements
(Articles
51
and
52
of
the
Charter).&dquo;
This
paper
proposes
to
examine
only
points
one
and
two
of
the
Acheson
Plan
with
respect
to
the
question
as
to
whether
or
not
they
are
consistent
with
the
Charter
of
the
United
Nations.
A
legal,
not
a
political,
analysis
of
these
essential
provisions
of
the
resolution
.carried
by
the
General
Assembly
is
intended.
Before
attempting
this
analysis,
it
appears
necessary
to
make
some
preliminary
remarks
in
order
to
avoid
misunderstandings.
The
legal
anal-
ysis
of
a
document
is
by
its
very
nature
technical
and
has
nothing
to
do
513
with
a
moral
or
political
evaluation
of
its
object.
The
purpose
of
such
an
analysis
is
in
the
first
place
to
examine
whether
the
provisions
con-
tained
in
the
document
are
constitutional,
that
is
to
say,
whether
they
are
consistent
with
the
basic
law
under
which
they
are
issued
or
under
which
they
are
to
be
issued.
Moreover,
the
examination
of
the
constitu-
tionality
of
the
Acheson
Plan
implies
necessarily
an
interpretation
of
the
Charter
of
the
United
Nations.
This
writer
does
not
intend
to
present
one
specific
view
as
&dquo;the&dquo;
right,
that
is,
the
only
correct
interpretation.
A
legal
instrument,
such
as
the
constitution
of
a
state
or
of
an
inter-
national
community,
allows
very
often
not
one
but
two,
and
sometimes
more
interpretations
which
may
be
highly
contradictory.
The
task of
a
scientific
commentator
is
to
show
the
possible
interpretations,
but
not
to
choose
between
the
possible
interpretations
and
to
prefer
the
one
to
the
other.
This
selection
is
the
exclusive
right
of
the
legal
authority
authorized
by
the
law
to
apply
and
consequently
to
interpret
in
an
authentic
manner
the
instrument
concerned.
The
choice
between
two
possible
interpretations
is
always
based
on
a
political
value
judgment.,
This
more
objective
approach
does
not
prevent
a
commentator
from
preferring
politically
for
his
person
one
interpretation
to
another.
However,
such
an
attitude
would
be
of
little
use
if
the
legal
authority
should
actually
prefer
another
interpretation,
and
if
the
commentator
is
obliged
to
admit
that
the
official
interpretation
is
legally
as
possible
as
the
one
he
prefers.
This
is
particularly
true
when
the
interpretation
adopted
by
the
legal
authority
has
gained
the
force
of
law.
z
I
The
first
question
is
whether
the
Charter
of
the
United
Nations
authorizes
the
General
Assembly
to
recommend
to
Members
the
use
of
armed
force.
The
competence
of
the
General
Assembly
is
determined
in
a
general
way
by
Article
10
of
the
Charter,
which
reads
as
follows:
The
General
Assembly
may
discuss
any
questions
or
any
matters
within
the
scope
of
the
present
Charter
or
relating
to
the
powers
and
functions
of
any
organs
provided
for
in
the
present
Charter,
and
except
as
provided
in
Article
12,
may
make
recommenda-
tions
to
the
Members
of
the
United
Nations
or
to
the
Security
Council or
to
both
on
any
such
questions
or
matters.
Nothing
in
the
Dumbarton
Oaks
Proposals
corresponds
with
this
Article
which
was
inserted
in
the
Charter
at
the
San
Francisco
Conference.
There
was
some
disagreement
with
respect
to
the
content
of
this
Article,
which
originally
stipulated
that the
&dquo;General
Assembly
may
discuss
any
questions ...
within
the
sphere
of
international
relations
...,&dquo;
but
later
was
accepted
in
its
present
form
according
to
which
the
&dquo;General
Assembly
may
discuss
any
questions ...
within
the
scope
of
the
present
1
Compare
Hans
Kelsen,
The
Law
of
the
United
Nations
(London:
Stevens
and
Sons,
1950),
pp.
xiii
ff.
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