104 Evatt to External Affairs
Cablegram E42 SAN FRANCISCO, 6 June 1945, 9.32 p.m.
TOP SECRET MOST IMMEDIATE
Our efforts to enlarge the protection given under the charter to matters of domestic jurisdiction may reach the stage of discussion in Committee this week. The following are the essential features.
2. Under the Dumbarton Oaks text, paragraph 7 of Chapter VIII, Section A excluded from the whole procedure of peaceful settlement contained in paragraphs 1 to 6 of VIII A any situation or dispute arising out of matters which by international law are solely within the domestic jurisdiction of the state concerned.
3. No similar provision operated in respect of the Security Council's powers under Chapter VIIIB-dealing with the determination of threats to the peace or acts of aggression and action with respect thereto.
4. During the London talks it was explained that as the United Kingdom Government interpreted Chapter VIIIB the Security Council would have full power under paragraph 2 to deal with the merits of any matter out of which threat to the peace or breach of the peace or act of aggression had arisen. The intention was thus that in the face of an imminent or actual resort to force the Security Council should have power to lay down such conditions as it thought necessary for the maintenance or restoration of peace even though the matter concerned was one solely within the domestic jurisdiction of the state concerned. Several Dominions asked critical questions. It was understood that the matter would have to be further considered.
5. The vital importance of this matter for Australia needs no emphasis. Under the charter as thus interpreted [migration]  policy would become subject to the power of the Security Council immediately any aggressor threatened to use force to extort concessions. It would be impossible for Australia to ratify a charter that contained such provisions.
6. Accordingly, we filed amendments to Chapter VIIIB which by removing all doubt about the Council's power to lay down the terms of settlement made clear the necessity for excluding matters of domestic jurisdiction from VIIIB as well as from VIIIA. Our amendment (see our E.34, 16th May ) is as follows- '(3) If a situation calling for preventative or enforcement action under paragraph (1) or paragraph (2) above has arisen out of a matter which by International law is solely within the domestic jurisdiction of the State concerned the Security Council shall not make any recommendation or decision which would curtail that State's lawful freedom of action but shall take in accordance with this section whatever preventative or enforcement action is necessary to maintain or restore international peace and security.' This amendment while precluding the Council from making any recommendation or decision which curtailed the lawful freedom of action of the State concerned nevertheless emphasises the continuing responsibility of the Security Council for resisting aggression and maintaining or restoring peace.
7. Before our amendments were filed, we learned that the United Kingdom Delegation proposed to file an amendment clearly expressing exactly the opposite intention, namely, that the Council did have the power to interfere at the point where peace was threatened even with the matters of domestic jurisdiction. We informed them that this proposal was directly unacceptable to us and sent a copy of our own proposed amendment.
8. Despite an exchange of views at the official level the United Kingdom Delegation concurred with the other sponsoring Governments in filing an amendment to deal with domestic jurisdiction in a way which, as they afterwards admitted, still produces the effect to which we had taken exception. Their proposal was to omit paragraph 7 of Chapter VIIIA altogether and to replace it by a new paragraph in Chapter II (principles). This paragraph is as follows- 'Nothing contained in this Charter shall authorise the organisation to intervene in matters which are essentially within the domestic jurisdiction of the State concerned or shall require the members to submit such matters to settlement under this Charter but this principle shall not prejudice the application of Chapter VIII Section B.' 9. Following on further exchanges of views at the official level the subject was fully discussed at a meeting on 11th May of the leaders of the British Commonwealth Delegations presided over by Eden. I explained our objections to the proposal of the sponsoring Governments and was emphatically supported by Smuts and Fraser.
Eden's legal adviser, Sir William Malkin, agreed with our interpretation of the effect of the Big Four amendment. Eden appeared not to have realised the full importance of the proposal and was heard to ask Cadogan why they had agreed to it. It was eventually agreed that the United Kingdom Delegation would consider the matter further with a view to meeting the criticism made by us and supported by the other Dominions.
10. We agreed that it was wise to place the exclusion of matters of domestic jurisdiction among the principles of the organisation so as to cover the action of all of its organs. Our objection was that the concluding phrase of the Big Four amendment expressed as an exception [to] the general principle amounted to a specific assertion of the right to intervene under Chapter VIII B in matters essentially of domestic jurisdiction. We urged that the paragraph should not do more than make clear that the exclusion of domestic jurisdiction would still leave unimpaired the Council's powers to impose sanctions to curb aggression.
11. During the discussion it appeared that the Big Four amendment had been couched in such wide terms in order to permit the organisation to intervene if for example the oppression of minorities such as Jews reached a point at which peace was endangered. We urged that the proper course was to take such matters out of the orbit of domestic jurisdiction by negotiating an International Convention for promoting respect for basic human rights and fundamental freedoms. We pointed out that one of the Big Four amendments to Chapter V seemed to be expressly designed to permit the Assembly to act in this direction.
12. After the meeting discussions continued with a view to finding a satisfactory formula and on 16th May I forwarded to Halifax a revised draft of the Big Four amendment. It would plainly be necessary for the United Kingdom to obtain the agreement of the other sponsoring Governments to any alteration of their amendment.
Accordingly we accepted the first part of the paragraph as it stood and sought to facilitate general acceptance by proposing simple alteration in the last clause alone. Our draft ran as follows: 'Nothing contained in this Charter shall authorise the organisation to intervene in matters which are essentially within the domestic jurisdiction of the State concerned or shall require the members to submit such matters to settlement under the Charter. This paragraph does not affect the powers under the Charter to take preventative or enforcement action against a state which uses or threatens to use force in any manner inconsistent with the Charter.' 13. The United Kingdom Delegation apparently did not agree to support this draft but referred the whole matter for instructions to London along with an alternative suggestion.
14. On 23rd May Halifax advised that the United Kingdom Government was not prepared to ask the other sponsoring Governments to agree to our draft but would be prepared to seek support for an alternative proposal. This was to leave the Big Four amendment untouched but to add to Chapter II another principle as follows:
'All members shall refrain from intervention in the domestic affairs of other members.' 15. This proposal would have been an improvement from our point of view upon the Charter as it stands and also upon the Big Four amendment itself. An aggressor would not merely have infringed the existing prohibition of the use or threat of force in international relations but would have infringed an express prohibition of intervention in our domestic affairs. Under such conditions the Security Council might be expected to refuse to require any concessions to be made to the aggressor. The protection however would be indirect and incomplete and would require complicated explanation especially as the direct assertion of the Council's power to interfere would still stand.
16. On 24th May another British Commonwealth meeting took place at our request. After hearing a vigorous statement of Australia's difficulties, strongly supported by Fraser, Halifax agreed to look further into an alternative suggestion which I had put forward in the course of earlier discussions and which was mentioned again by Fraser. This was simply to omit the whole of the controversial last clause of the Big Four amendment. The paragraph would then stand as a categorical exclusion on matters of domestic jurisdiction. We urged again that such an exclusion did not in any way imply an improvement of the Council's powers to restrain aggression.
17. Later in the same day Halifax asked for consideration of yet another suggestion but this was rejected as not removing but even emphasising the features to which we had taken objection. Halifax then agreed to seek authority from London to propose our suggestion to the other sponsoring Governments. This authority was given by London.
18. On 30th May at a further informal British Commonwealth meeting, Halifax informed us that our proposal had been put at the official level to the sponsoring Governments and had met with general opposition. Smuts expressed the view that unless the Dominions were assured of carrying their proposal it would be unwise to raise the matter at all. The meeting adjourned to give the matter further consideration, Halifax offering to take our proposal up at the highest level with the sponsoring Governments if we so desired.
19. Our view was that Australia could not possibly leave the Conference with such an issue concealed and unresolved and Halifax's offer to take the matter up with the heads of the other Big Four Delegations was immediately accepted. We felt confident that the other Governments could not have understood the full implications of the present amendment but that in any case we must in the last resort fight the matter out in the Conference and could win.
20. On 1st June I went with Halifax to see Stettinius. It was plain that Stettinius and his advisers had not been made aware of the full implications of their own proposals. They are considering the matter.
21. This issue is for the moment overshadowed by the crisis which has arisen in connection with the veto provisions as applied to the peaceful settlement provisions of Chapter VIII. Discussions with the leaders of other Delegations will however take place as soon as practicable. Meantime we are making every possible effort to prevent any discussion on the merits in the technical committee of the Conference which has to deal with Chapter II until the sponsoring Governments have had an opportunity of deciding whether or not to accept a revision of their amendments along lines satisfactory to Australia.