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

Cablegram UN277 NEW YORK, 18 March 1947, 3.06 p.m.

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.

1 Cablegram UN272, dispatched 15 March. It reported Aranha's intention to state his own opinion that Council decisions must be final and could not be made conditional on confirmation by another body, although the peace conference might note the Council's decision and express its approval.

2 Paragraph 2 outlined Aranha's suggestion to secure Australia's objective in the terms of the resolution approving the agreement.

The resolution might emphasise the freedom of any member of the Council to raise the subject before the peace conference, and might undertake to call a special meeting of the Council to consider any proposals made by the peace conference.

3 Article 16 read: 'The present Agreement shall come into force when approved by the Security Council of the United Nations and by the Government of the United States after due constitutional process.' 4 Article 107 read: 'Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.' 5 Reference probably is to Security 305 (Document 461).

[AA : A5466/2, CCJ/4H]