109 Note by Loomes [1]

[CANBERRA], 6 June 1947

TRADE AND EMPLOYMENT CONFERENCE

There are apparently proposals for the conclusion at this Conference of three agreements:-

(1) The Charter of the I.T.O., based on the proposals of Preparatory Committees, as amended by the Drafting Committee which met in New York in March, 1947. [2] (2) A General Agreement on Tariffs and Trade, also based on proposals of the Preparatory Committee, and as also amended by the Drafting Committee.

(3) A protocol which would provide that Governments signatory thereto would, pending acceptance of the Charter in accordance with their Constitutional procedures, make effective to the fullest extent of their authority all the principles and provisions of certain specified chapters of the Charter.

2. The reason given for the protocol appears to be that the United States would require Congressional approval to the Charter, but would not require such approval to the protocol. The protocol therefore is put forward as a means of giving immediate implementation of the General Agreement on Tariffs and Trade which requires the application of certain specified chapters of the Charter to give it adequate effect.

3. The protocol is intended apparently to give the United States executive power to implement the Charter as far as lies within its 'authority', without obtaining congressional authority, which would, of course, be obtained for the purpose of the acceptance of the Charter as a whole. The protocol, therefore, is an interim measure to bind the executive of the United States. It may be, of course, that the United States Congress may refuse to approve of the Charter, in which case the United States executive would, apparently, no longer be in a position to give effect to any of the provisions of the Charter, since the protocol is to operate 'pending acceptance'.

4. The position in Australia is not quite the same. There is no specific obligation upon the Commonwealth Government to obtain the approval of Parliament, but, in practice, this would be usual in a matter of this importance. Where, of course, the amendment to laws would be required to give effect to the Charter, legislative action would be essential. The power of the Commonwealth to pass such laws appears to be adequate-either under placitum (i) (trade and commerce with other countries) or placitum (xxix) (external affairs) or a combination of the two. [3]

5. The effect of the protocol in Australia would be to obligate the executive to give effect to such of the specific provisions of the Charter as it could, either under existing laws or under its purely executive power; this obligation being limited, of course, by the words 'pending acceptance'.

6. No legal objection can be seen to Australia's signing the protocol without reservation. It would not commit the Australian Government to seek any legislative changes in advance of formal acceptance.

7. if, as I understand the case, it is essential to Australia that the Charter should be accepted by the United States, it is necessary to ensure that by acceptance of the protocol we do not put ourselves in a position where we are bound to accept the Charter whereas the United States are not so bound. The words which are important in determining this question are 'pending acceptance of the Charter in accordance with their constitutional procedures'. This wording is not entirely clear. If it means that the protocol will apply to obligate States to give effect to the Charter 'to the fullest extent of their authority' until it accepts the Charter formally, what is to be the position if the competent authority (Congress in the case of the United States) refuses to accept? Does this refusal bring to an end the obligations assumed by the protocol, or does the protocol continue to operate (in its vague way) indefinitely? These questions are difficult to answer, and it would seem desirable to make the meaning clear. It would be desirable to put the matter free from doubt, perhaps by adding after 'procedures' the words 'or until the refusal of the competent authority to accept the Charter'.

8. This would also be desirable for Australia's point of view. It would ensure that, if the United States Congress refused to accept, Australia could also refuse to accept the Charter, and the interim provisions of the protocol would immediately cease to have any effect.

9. The General Agreement on Tariffs and Trade should perhaps be signed by Australia 'subject to acceptance' and we would then be in no worse position than the United States, and we could perhaps defer our acceptance until the United States had notified acceptance.

10. The second question of the entry into force of the general agreement appears to be a practical difficulty, and one which can only be considered at the time when the agreement is concluded.

11. The following comments are given on the 'quasi-legal' matters mentioned in paragraph 5:

(a) this article [4] is limited to cases where the United Nations is designated as administering authority of a trust territory.

There are a number of matters concerning trade which are important for the advancement of the trust territory, and there is nothing in the Charter which would prevent the United Nations in its capacity as an administering authority from becoming a member of the Organisation.

(b) The fact that the Commonwealth Parliament has power to legislate under the trade and commerce power and the external affairs power seems to be adequate to ensure that the provisions of Commonwealth legislation giving effect to the international agreements will be binding throughout the Commonwealth, whether or not the States are to any extent within the exception of Art 88 (4) [5], and the power to legislate in respect of the external territories of the Commonwealth is also free from doubt.

12. Article 88(4)as drafted is in accordance with Australian policy expressed in the World Health Conference.

[A.H. LOOMES]

1 Prepared in response to a letter, dated 26 May, from Bury to Button which sought advice for the Delegation on certain legal and administrative questions.

2 The meeting of the Drafting Committee ended, in fact, in February. See Document 80, note 2.

3 The reference is to Section 51 of the Australian Federal Constitution.

4 i.e. Article 2(3) of the draft charter which provided for membership by the United Nations.

5 Under Article 88(4) a government would accept the charter 'in respect of its metropolitan territory ... with the exception of those territories which are self-governing in respect of matters provided for by the Charter'.

[AA : A9790/1, 4151, v]