66 Makin to Evatt
Cablegram 792 LONDON, 3 February 1946, 10.45 a.m.
MOST IMMEDIATE PERSONAL
Committee 6. Rules of Procedure. (Two year term).
1. Reference Assembly 39 and your UND.19.  Sub-Committee of Committee 6 on rules of procedure has now discussed Rule 78  and supplementary rule S  governing term of office of states recently elected to Councils.
2. The Egyptian delegation proposed to repeal supplementary Rule S and replace Rule 78 by the following rule 'the term of office of each member shall begin immediately upon election provided the seat to which such member has been elected is vacant or if election takes place before the expiry of the term of office of a member previously elected immediately it becomes vacant'. This was strongly opposed by the United Kingdom, United States of America and Union of Soviet Socialist Republics as leading permanently to lame duck sessions of Councils since regular [sessions] of the Assembly would have to meet in September as now provided by Rule 1 and thus term of office of all states elected to Councils would expire in January of the relevant year.
3. The Yugoslav representative greatly embarrassed by the circumstances of Yugoslavia's election to the Economic and Social Council  suggested an interpretive resolution declaring that for the purposes of the Charter the term 'year' in Articles 23, 61 and 86 means a 'working year' that is to say the period between one regular session of the Assembly and the next. This was not a formal motion but received some approval and may well be adopted in substance by the Assembly's expressing the general intention of the charter.
4. The United Kingdom Representative moved (in opposition to the Egyptian proposal) that Rule 78 should be maintained, the changeover of members of Councils, thus Yugoslavia's election to the Economic and Social Council, continuing to take place at the time of election by the Assembly but that the Assembly itself should decide whether the terms of office of members elected at this session should be determined in accordance with Rule S or extended by a further year as suggested by the French Representative.
5. Having regard to your express instructions, the Australian representative maintained that the solution embodied in supplementary Rule S does not comply with the Charter and reserved our position on its validity but did not commit us to any specific amendment of the rules.
6. Egypt, Lebanon and China also contended that the solution contained in Rule S is unconstitutional.
7. The Egyptian proposal was defeated and the United Kingdom proposal was carried in the sub-committee which will report to the full committee on Monday.
8. The result of the Sub-Committee's debate is that the whole position will be reopened in the Assembly. Australia has been extremely fortunate in that by filing a formal amendment last week, Egypt has had the initial responsibility for raising the matter.
9. Under supplementary Rule S, Egypt will occupy a seat on Security Council for eight months, Australia for 20 months. Our term will expire according to Rule 1 and Rule S when elections are held at Assembly session in September 1947. On a strict reading of the Charter it should of course be four months longer ending in January, 1948. All governments at Preparatory Commission accepted Rule S and elections in January were expressly conducted on that basis.
10. What is being said here is that to have accepted the election under Rule S, and then seek to question the Rule and thereby gain an extended term is a distinct breach of faith. In the abstract the juridical arguments are admitted to be strong though literal but the governments pressing them at this stage are openly regarded as insincere. Except for China which voted for both motions in sub-committee the only support for Egypt has come from states that have recently been elected to councils for short term.
11. The full effect could be given to the Charter either by holding the Assembly regularly in January or by holding it in September as the rules now provide and postponing the changeover in councils until January as in the Egyptian proposal. On climatic and other grounds, the first solution will certainly be ruled out.
There are strong practical objections to the second. The case for Rule S rests on its purely transitional character as a solution of the timetable difficulties arising from postponement until January of the first session of the Assembly. In the present atmosphere we think that the Assembly will emphatically uphold-Rule S probably on the basis of some interpretive declaration.
12. The whole matter is now complicated by the likelihood of further meeting of the Assembly between the present meetings and September session by the uncertainty whether the September session is to be regarded as the second regular session or as the second part of the first session.
13. There is no foundation whatever for the suggestion that our actions and advice on this matter have been influenced by any other factor than Australia's interests as the delegation here after discussion sees them.
14. The crux of the present situation is that the debate cannot be kept on a purely juridical plane. Politically, everything turns on the fact that all members including Australia accepted Rule S before the elections. Consequently, whether freely or not the Egyptian move is regarded as merely an attempt to win by an unmerited technicality an extra four months of office for themselves. The Delegation thinks it essential to avoid any course which would break down Australia's position and your own as a disinterested and independent representative of the secondary states. We have made effective use of all constitutional arguments but think it necessary at this stage to be granted some discretion as the situation develops in accepting the best possible practical solution.