140 Department of External Affairs to Hodgson

Cablegram UNY3 CANBERRA, 24 [March] 1946

SECRET

Statement [1] begins.

1. The task confronting the Security Council in dealing with international disputes such as that brought before it by Persia is a critical one, which calls for an independent and impartial consideration of both its functions and its procedure.

2. The present dispute concerns the Soviet Union. The Australian delegation insists however that the course of justice before this Council must be determined as a matter of general principle. When the Charter was being framed at San Francisco Australia strongly and consistently contended for the adoption of principles of action and organisation. Illustrations of this were the veto question and the powers of the General Assembly. In both matters Australia found itself strongly opposed to the views of the Soviet Union. This did not imply any policy of opposition to the Soviet Union because in other matters the views of Australia coincided with those of the Soviet Union. These considerations are mentioned to show that particular matters must be dealt with on a basis of principle otherwise the United Nations will break down.

3. Australia demands that the matter brought by the Iranian Government to the attention of the Security Council should be considered from this point of view and that the Soviet Union, as the party charged, is entitled to the same degree of consideration-no more but no less than any other member state.

4. The principles to be laid down should apply not only to this particular case but to others which may be placed on the Agenda, such as the question whether the existing Spanish situation threatens international peace and security. The principles must be such as to afford all States, great or small, just treatment at the hands of the Security Council.

5. The fundamental approach in the view of Australia is that in dealing with the peaceful settlement of international disputes under Chapter VI of the Charter, the Security Council is essentially a quasi-judicial body. This is made clear by the rule in Article 27 para (3) that a party to a dispute must refrain from voting. Such a rule is characteristic of judicial and quasi- judicial bodies. In short, the Council is intended to occupy a position in relation to non-justiciable matters and disputes comparable to the International Court of Justice in relation to justiciable disputes. The Council should govern its actions and decisions accordingly. It should administer impartial justice according to equity and good conscience and the proved merits of the particular case.

6. it follows that all members of the Council must come prepared to hear and ascertain the true facts of any dispute or situation and to deal with it in accordance with both law and justice.

Arrangements between members of the Council as to voting or the procedure of the Council made before the facts can possibly be fully ascertained are entirely inconsistent with the role consigned to the Council by the Charter and should be condemned.

Equally the use of undue pressure on other States to bring a particular matter before the Security Council or to refrain from so doing is inconsistent with the duties of members of the Council. Public clamour, in advance of an impartial investigation of the facts and discussion at the Council table is also calculated to interfere with the discharge by the Council of its high duties.

7. For the same reason it is of supreme importance for the proper working of the Security Council and for its public reputation as a judicial body that its procedures should be laid down with care.

It is necessary to distinguish between different types of disputes, in order to determine the just procedure for each. There may be some cases in which all the relevant facts of a situation or dispute are admitted by all the parties or members concerned.

In most cases mere assertions and counter-assertions by interested parties will be of little or no assistance to the Council, so that justice will require a full investigation of the disputed facts after objective enquiry, sometimes on the spot. There will also be cases in which some of the facts are admitted, but in which other relevant and vital facts must be investigated and determined. It is the Council's duty to adapt its procedures to the circumstances before it, with a view to obtaining, not a rough summary judgment without ascertaining all the facts but a just and lasting solution of the basic problems involved.

8. As regards the situation in Persia, no attempt was made in London to discuss, let alone investigate, the merits of the matter. Both the Soviet Union and Persia finally agreed to negotiate bilaterally. Therefore the Council merely reserved the right to request information on the progress of the negotiations.

it should be added that the charges and countercharges made in London could not in any event have led to a just decision on the merits, because complex questions of law and disputed questions of fact would have been left unsettled.

9. It now appears that the negotiations between the Soviet Union and Iran have not been successfully concluded. indeed the situation has become more acute because, according to the statements made by the Persian Government Soviet troops still remain in Persia in violation of an obligation, imposed by the Tripartite Treaty of 29th January, 1942, to withdraw them by 2nd March, 1946. In considering this new issue, it has to be remembered that the Security Council may, after a full investigation of all the facts, decide to deal not only with the continued presence of Soviet troops in Iran but with all the related circumstances, including any alleged justification or excuse for the presence of the troops. Attention has to be directed to the fact that, by Article 24 of the Charter, the Security Council is bound to act in accordance with the purposes of the United Nations. Those purposes bring in the conception not only of international law, but also of justice and respect for the principle of self-determination of peoples (See Article 1 and 2).

10. [2] In dealing with the causes of a dispute which is before the Security Council, the Council is subject to one important limitation on its jurisdiction imposed by Article 2 of the Charter. The Council is forbidden to intervene in matters which are 'essentially' within the domestic jurisdiction of any state.

One result is that, as a general rule, the Security Council could not make recommendations with regard to the internal government of any state. Australia regards this provision as a valuable protection for the rights of the smaller states, because each permanent member is safeguarded by the existence of its separate veto. But the line between matters of domestic jurisdiction and matters of international concern is not fixed and immutable, and it is reasonably clear that a government of Fascist origin and tendencies may adopt policies, both at home and in its relations with reactionary groups in other countries which will seriously threaten the maintenance of international peace and security.

Whether the operations of such a Fascist government are ,essentially' a matter within the domestic jurisdiction of the state concerned cannot be decided by the mere general assertion that the form of government of a state is involved. Here again enquiry into and investigation of the facts may be necessary before the Council can decide whether it can deal with the matter under the Charter. An illustration of the manner in which internal happenings may come to be essentially of international concern may be found in the provisions of Articles 5 and 6 of the Treaty between Persia and Russian Socialist Federal Soviet Republic of 26th February, 1921.

11. The Iranian Note to the Secretary-General of 18th March, 1946, brings to the attention of the Security Council two matters- (i) The presence of Soviet troops on Iranian territory after March 2nd, 1946.

(ii) The continuance of the situation referred to the Security Council in January, 1946.

As to (i) Iran alleges a dispute between the Soviet Union and itself. But the dispute appears to embrace other parties also, because demands made on the Soviet Union by the United States and the United Kingdom for the withdrawal of Soviet troops from Iran have not as yet been complied with. For these reasons the procedure to be followed seems to require special consideration.

12. As regards (ii) (the situation in Iran which was referred to the Security Council in January last), the decision of the Council of 30th January did not automatically remit the matter to the forthcoming meetings of the Council, even for the limited purposes mentioned in the resolution viz., the providing of information by the parties as to the results of the bilateral negotiations, and the claiming by the Council of the right to request information on the progress of the negotiations. Nevertheless in the circumstances it would be appropriate for any member of the Security Council to raise the question of the result of these negotiations. No objection could be taken to the Council's receiving a report from the parties on this matter.

13. it should be emphasised however that no conclusion adverse either to the Soviet Union or to Iran can be drawn from the assertions and counter assertions contained in the London documents and proceedings. If the matter mentioned in London is to be dealt with separately on the merits by the Council, all the relevant facts will have to be admitted by the parties to the dispute, or else an investigation should be conducted by or under the authority of the Council, to ascertain what the facts are. In truth however the original situation is practically merged in the new dispute, occasioned by the retention of Soviet troops in Iran since 2nd March, 1946. Its importance will be mainly as a background to the new dispute.

14. Following upon the new dispute, (failure to withdraw Soviet troops from Iran) the Soviet Government has asked that the meeting of the Security Council should be postponed until 10th April. If this means that no business whatever is to be transacted by the Council until that date, then on the facts as known to Australia it would seem unreasonable.

15. A just procedure would be as follows- First, the Council should adhere to the general order of business already determined upon, though permitting matters reserved in the Council's resolution of 30th January [3] to be mentioned at the outset, solely for the purpose of informing the Council as to the present stage of the negotiations.

Second, no existing rules of procedure prevent the new dispute from being included at once in the Agenda of the Council. The dispute is obviously a matter of importance, and should be included in the Agenda. However, a just procedure should be laid down for dealing with the dispute.

Third, the Soviet Union should be asked to give an undertaking not to take unilateral action to alter the existing position to the prejudice of Iran.

Fourth, Iran having made a complaint in writing, the Soviet Union should be invited to answer in writing within a reasonable time, to be fixed by the Council.

Fifth, the Council should fix a date when the whole dispute can be investigated by the Council itself or by a special committee of enquiry. Once begun, the hearing should be completed with the utmost despatch.

Sixth, the Council should take into account, in fixing the times for the purpose of the fourth and fifth points, all the circumstances established at the Council meeting, including the willingness of the Soviet Union to give the undertaking referred to in the third point.

16. Australia has no preconceived ideas as to the just settlement of this dispute. It may be that the just settlement should be a decision that the Soviet troops should be withdrawn immediately and unconditionally from Iran. on the other hand, justice may require a settlement which is not limited to the question of breach of a particular treaty but deals as well with other aspects of the situation in Iran. Australia cannot commit itself finally to any view, nor should the Security Council pronounce any final judgment until the matter has been fully investigated.

1 Hodgson was instructed to deliver the statement as soon as possible after mention was made of placing the Iranian issue on the agenda at the 25 March Security Council meeting.

2 In cablegram UNY5 of 25 March, the External Affairs Dept instructed Hodgson to omit paragraphs ten and sixteen as 'premature', while adding that they would be of 'crucial importance' if the Security Council proceeded towards making a recommendation on the dispute.

3 See Document 57, note 2.

[AA:A1838 T189, 854/10/2]