IMMEDIATE

Security 308.

1. Before Monday's meeting we discussed with United Kingdom
redraft of Australian amendment as contained in paragraph 2 of
your UNY159. United Kingdom accepted redraft and it was arranged
that at outset of meeting we should introduce new text which
United Kingdom would support.

2. We also spoke with the President, explaining our views. He
thought that as the earlier text was before the Council he should
bring the question of admissibility of amendment to the Council's
notice but would immediately recognise Australia. Accordingly, at
the opening of the meeting he spoke on the lines anticipated in
paragraph 1 of our Security 307 [1] and invited Council to
pronounce on admissibility of our amendment. He did not refer to
procedure outlined in paragraph 2 of our Security 307. [2]

3. Australia, speaking only on the question of admissibility,
attempted to minimise constitutional objections which we said
apparently arose from misunderstanding of our purpose. We warmly
supported United States objective and fully recognised only
Security Council could approve Trusteeship Agreement and Peace
Conference could not take over the functions of the Security
Council in that regard. The purpose of the amendment was simply to
relate the question of disposal of islands to the peace settlement
with Japan and in so doing it simply proposed a point of time at
which agreement approved by the Council would come into force.

Article 16 of the Draft Agreement, postponing entry into force
until Senate approved, was directly comparable with our amendment.

[3] Nothing in the Charter precluded inclusion in agreement of
provisions for entry into force on date later than the date of
Security Council approval. Second half of our amendment simply
recorded understanding among members of the Security Council. We
then introduced the new text.

4. The President agreed that new Australian text met his
objections and appeared ready to pass on to discussion of
substance but United States asked to be heard. Austin dealt with
legal aspects from three angles.

(a) From United Nations view our amendment took away United
Nations 'sole exclusive supreme' authority. What if no peace
treaty were effected. What if Japan did not regard the treaty as
binding. What if it took years to complete treaties. Security
Council's approval would mean nothing. Our amendment also offended
Charter Article 107. [4] On our analogy to Article 16 of United
States draft, Austin replied that comparison was inexact insofar
as Article 16 was an agreement between the United Nations and one
of the parties, or between the United Nations and an outside body.

The United Nations had no authority to make the peace terms.

(b) From the view of Japan's rights in the islands and the powers
of conqueror. The instrument of surrender detached the islands
from Japan. The Cairo Declaration also revealed the Allies'
intention. What did 'formal detachment' in Australian amendment
mean.

(c) For the United States angle. United States constitutional form
must be complied with. United States offered to place islands
under trust, and Senate probably would not accept if acceptance
were conditional.

5. Syria also spoke against admissibility of our amendment but
arguments were confused. The main objection was Australian
amendment introduced a third party in this was not consistent with
United Nations dignity.

6. To make an opportunity for presenting a full case in favour of
the amendment, Australia made the assumption that the amendment
has been admitted, and stated our main arguments along the lines
of your instructions. We repeated that we favoured United States
control and continuance of de facto administration. These
objectives were commonly agreed and the only area of difference
was in the method of attaining the objective. Even here the only
difference did not concern powers or functions of the Security
Council or rights of Trusteeship power but simply whether final
disposition of the islands could be made legally or in fairness to
belligerents independently of the peace treaty. Taking up Austin's
points, we expressed the opinion (without stressing) that the
instrument of surrender had not finally detached islands from
Japan as he argued for what was done in the instrument of
surrender must be transmitted into the peace settlement and formal
detachment should be made then. Our amendment recognised the
principle of common justice and fairness to all belligerents and
would prevent legal doubts from arising. In reply to United States
doubts regarding entry into force of the peace treaty we stated
that an early and binding settlement with Japan was fundamental,
and that United States exert strong influence in ensuring that
this would eventuate. We did not understand how our amendment
offended Charter article 107, for it did not preclude action
against enemies in the recent war but encouraged governments
having responsibility for such action to take action. Nor did our
amendment limit the Security Council's power. We then drew
attention to the doubts which the acceptance of the United States
draft by the Council would throw upon the constitution of the
Trusteeship Council (paragraph 3 (d) of our Security 300 [5]). We
concluded by stressing that no injury would be done to the
interests of the United States, the peoples of the islands or the
United Nations by delaying entry into force of agreement until the
peace treaty became binding.

7. The President stated that while he had expressed the opinion
that the revised Australian text was constitutional he had not
ruled either way on the question of admissibility and as United
States and Syria had raised doubts regarding admissibility,
presumably the constitutional issue was still unresolved.

8. The United Kingdom spoke briefly recalling the earlier British
statement raising legal doubts as to the propriety of the Security
Council considering the agreement before the peace settlement and
therefore supporting amendment. Cadogan also argued that amendment
was admissible. To meet the suggestion that the Council was
dictating to the Peace Conference he suggested that the words 'it
being understood' might be replaced by 'in the understanding that
by such treaty Japan will be required to, etc.'
9. Poland argued that Japan lost all legal claims to the islands
at the moment of committing the war of aggression against China,
her withdrawal from the League and other acts of violation of the
mandate. Consequently it was inappropriate now to ask Japan to
surrender rights to these territories as such rights did not
exist.

10. China argued similarly that Japan had never had sovereignty,
forfeited what legal title it had by violation of the mandate and
lost de facto claims as a result of the war. The League's powers
were transferred to the United Nations and the Security Council
was competent to dispose of them. Justice had been done to
belligerents by inviting them to participate in discussion at the
Council. Article 17 was neither constitutional nor necessary.

11. France said that while the normal procedure would have been to
leave this question to the Peace Conference, the procedure
proposed by the United States was acceptable as all countries
concerned had been invited to participate in Council discussion
and there was unanimous opinion that United States should
administer islands.

12. Nash (New Zealand), Mudaliar (India), Riddell (Canada), Van
Kleffens (Netherlands) and Lopez (Philippines) were seated at
Council to-day but had no opportunity to speak.

13. Debate on mandates will be resumed next Friday afternoon.

Proceedings have become somewhat confused as question of
admissibility is mingled with substance of our amendment and
President seems to have no clear intention whether to take the
vote first on admissibility of our amendment or on its adoption.

In any case we fear numbers are against us and either vote will be
determined solely on views regarding substance of our proposals.