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

Cablegram United Nations 166 NEW YORK, 28 May 1946, 8.47 p.m.

SECRET

Security 92.

1. Dr. Evatt presided at meetings of the Spanish Committee yesterday and today. Yesterday's meeting was devoted to continuation of the public questioning of the Spanish Republican Prime Minister, Giral. Today's private meeting was devoted to an examination of the stage reached in the committee's work and a full and frank exchange of views regarding the preperation of report for the Security Council. Members agreed that Thursday should be declared the deadline, for receiving information regarding the Spanish situation and that the Committee should not ask for any extension of time but complete its report on May 31st.

The preparation of objective summaries of all evidence available under each of the nine points of the commitee's studies has reached an advanced stage and the Commitee has now turned towards consideration of the conclusions.

2. The point to which the Committee is now moving is that while there is evidence of international friction there is probably no satisfactory evidence that peace is endangered to such an extent as to justify action by the Security Council under Chapter 7.

Indeed it is realised if the Security Council were to take measures under Article 39 as proposed in the Polish resolution [1] before the Security Council, it must be prepared to recognise that these measures are only the beginning of a series of steps to remove the threat to peace, and that if the first step, namely, breaking off of diplomatic relations did not bring the desired result it would have to be followed by even more severe measures under Articles 39 and 41. While the evidence regarding Franco's association with the Axis powers and of his complicity in conspiracies with Hitler and Mussolini to wage aggressive warfare is exceptionally strong, it is clear that since the defeat of Italy and Germany, Spain today does not at the present moment threaten a breach of peace. At the same time members of the Committee recognise that so long as the Franco regime remains in Spain there is a potential threat to the peace and the United Nations system of security will be incomplete. Evidence regarding the closing of the Franco-Spanish frontier shows that it was in fact a little more than a protest against the killing in Spain of a Spanish national who had been prominent in the French resistance movement, and that the closing of the frontier did not have military significance.

3. While there is some doubt whether the Security Council could lawfully take action of the kind called for by the Polish resolution, the members of the Committee recognise that the previous decision of the General Assembly that Spain cannot be admitted to the United Nations so long as the Franco regime remains in power, points to the necessity for some further action by the United Nations. The Security Council has no specific jurisdiction in a situation which is broader than a threat to the peace requiring immediate enforcement action, and which is of general concern to all members of the United Nations. It has been suggested that the situation might be handled more appropriately by the General Assembly under Article 14 [2] of the Charter, and that such action by the General Assembly would be in logical sequence from the General Assembly resolution of last January. [3]

4. It is therefore quite probable that the final conclusion reached by the Committee will favour a special report by the Security Council to the General Assembly (Articles 15 and 24 of the Charter) drawing attention to the seriousness of the situation in Spain and the strong evidence of conduct by the Franco regime contrary to the principles of the United Nations and hindering the attainment of the organisation's purposes, and recommending that the General Assembly should itself take the responsibility for any such measures as breaking diplomatic relations with Spain.

5. Dr. Evatt's provisional views have had an effect on the Committee ...some of whom were at first inclined to take action in conflict with the Charter. His special knowledge of the Charter and its drafting and its legal implications may well save the Council from action which in the long run would be detrimental to the United Nations and would also be prejudicial to Australian consistent position that the facts must always be ascertained and proved before sanction can be applied.

1 See Document 198, note 1.

2 Under Article 14 of the U.N. Charter, the Security Council, when 'exercising in respect of any dispute or situation the function assigned to it', may request the General Assembly to recommend measures for the peaceful adjustment of any situation, regardless of origin, deemed 'likely to impair the general Welfare or friendly relations among nations'.

3 Adopted 9 February. See Document 178, note 3.

[AA:A1066, E45/28/7]