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16 Australian Delegation, United Nations, to Department of External Affairs

Cablegram United Nations 256 NEW YORK, 9 July 1946, 4.41 p.m.


Atomic 18.

1. Monday's meeting of sub-committee number one was occupied
mainly with the presentation and discussion of an analysis by Dr.

Evatt of the relationship between organised measures for the
International control of atomic energy and the United Nations,
particularly the Security Council. A working paper prepared by Dr.

Evatt argued that the system of control could only be effective if
some form of International Agency was established. While the
existence and activities of such agency would have a bearing on
international security, it could not be under the jurisdiction of
the Security Council. First, the Atomic Energy Agency would have
to exercise continuous super-vision in atomic development and act
promptly in purely administrative matters and those duties would
not conflict with exercise by the Security Council of functions
and powers conferred on the Council by the United Nations Charter.

The Council's jurisdiction in regard to maintenance of
international peace and security was primary but not exclusive
(compare articles 24, 10, 11 and 14 of the Charter), while other
matters likely to come under notice of the Atomic Agency more
nearly concern other organs of the United Nations. The Security
Council's jurisdiction could be invoked only if the proved or
admitted circumstances of the particular case were of the kind
described in articles 34 or 39, and these conditions had to be
fulfilled before the executive powers of the Security Council
under chapters VI and VII could be applied. The Atomic Energy
Agency's employment of sanctions for non-observations of rules for
control of atomic energy would be of a different character to
those specified in chapter VI and might include such actions as
suspension or cancellation of licence to produce atomic energy
imposition of pecuniary penalties or withholding of atomic
benefit;. In short, the functions exercised by the Atomic Energy
Agency and penalties and sanctions it would use would be very
different in nature and quality from those competent to the
Security Council under the Charter.

2. Dr. Evatt further argued that inasmuch as the powers given to
the Assembly and Council under articles 22 and 29 [1] were limited
to the creation of subsidiary organs to perform functions
belonging to the respective parent bodies, the proposed Atomic
Agency could not be a subsidiary organ of either body for the
Assembly possessed no direct executive authority and the Council's
executive authority was confined to matters contained in chapters
VI and VII Accordingly, a new treaty would be necessary to confer
any effective executive or administrative powers on the Atomic
Agency. After referring to article 103 which made it clear that in
the event of any conflict between obligations of members, their
obligations under the Charter must prevail, Dr. Evatt said it was
almost impossible to visualize any such conflict.

If the misuse of atomic energy or a breach of the Atomic Energy
Treaty [2] the existence of a threat to peace or breach of the
peace or act of aggression within chapter VII, such a situation
could be brought to the notice of the Security Council, either by
a member, by the Secretary-General or by the Atomic Energy Agency
itself, but he pointed out that jurisdiction of the Security
Council under chapter VII related to aggression and threats to the
peace, not to the misuse of any single weapon. Hence the sanctions
and enforcement provisions of any Atomic Energy Treaty would not
be identical with those prescribed in Chapter VII, and in a
properly framed atomic energy treaty collision of jurisdiction
between Security Council and Atomic Agency could be made
impossible. No doubt the Atomic Energy Treaty would contain
provision for punishment for violation of any of its terms and
safeguards could be included, such as access to an impartial and
internationally constituted court. Inasmuch as every party to the
treaty must be subject to the rules of conduct laid down in the
treaty or by the agency, no system of veto-ing should be permitted
in the procedure of the Atomic Agency for that would mean a right
or privilege to claim special immunity or exemption from the
general rules of conduct. As already indicated, serious breaches
could be brought to the notice of the Security Council by the
Agency itself. Moreover, a violation might be of such a character
as to allow the inherent right of self-defence recognised in
article 51 of the Charter. Conclusion reached by the analysis was
that the Atomic Agency must have autonomy and that the Security
Council would not, by the creation and function of such an
autonomous agency, be impeded in the performance of its duties
under the Charter.

3. In subsequent discussion other delegations were not prepared
immediately to take a definite position on the points raised by
Dr. Evatt's analysis but expressed appreciation of the
contribution it made to the solution of an outstanding problem.

United States shared the hope implicit in the analysis that a
workable Atomic Agency could be created without amendment of the

4. Gromyko was noncommittal on central argument but took advantage
of a thoughtless intervention by Mexico to raise a subsidiary
point concerning whether or not the existing Atomic Energy
Commission was intended to be a permanent or semi-permanent body.

He developed the theme that there was no need to create a new
authority and that the Security Council could perform all the
necessary functions after receiving reports from time to time from
the existing Commission. This thesis was effectively challenged by
Dr. Evatt who pointed to the lack of executive powers in the
Charter or in the resolution establishing the Commission to enable
it to perform any of the functions of atomic control. if we were
left with only the existing United Nations Organs and the existing
Commission, the United Nations could not deal with any aspect of
atomic control except when there was a proved threat to the peace.

The Assembly resolution clearly envisaged control and this control
could only be instituted by some binding arrangement with
protection against violations.

5. The next meeting of sub-committee number one would be held on
Thursday morning and a full meeting of the Working Committee to
receive a progress report would be called for Friday.

1 A sign here reads 'mutilated'.

2 A sign here reads 'mutilated'.

[AA:A1838 T184, 720/1, i]
Last Updated: 11 September 2013
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