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

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

SECRET

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 Charter.

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]