Delegation SFC40.

Our efforts to enlarge the protection given under the charter to
matters of domestic jurisdiction may reach the stage of discussion
in Committee this week. The following are the essential features.

2. Under the Dumbarton Oaks text, paragraph 7 of Chapter VIII,
Section A excluded from the whole procedure of peaceful settlement
contained in paragraphs 1 to 6 of VIII A any situation or dispute
arising out of matters which by international law are solely
within the domestic jurisdiction of the state concerned.

3. No similar provision operated in respect of the Security
Council's powers under Chapter VIIIB-dealing with the
determination of threats to the peace or acts of aggression and
action with respect thereto.

4. During the London talks it was explained that as the United
Kingdom Government interpreted Chapter VIIIB the Security Council
would have full power under paragraph 2 to deal with the merits of
any matter out of which threat to the peace or breach of the peace
or act of aggression had arisen. The intention was thus that in
the face of an imminent or actual resort to force the Security
Council should have power to lay down such conditions as it
thought necessary for the maintenance or restoration of peace even
though the matter concerned was one solely within the domestic
jurisdiction of the state concerned. Several Dominions asked
critical questions. It was understood that the matter would have
to be further considered.

5. The vital importance of this matter for Australia needs no
emphasis. Under the charter as thus interpreted [migration] [1]
policy would become subject to the power of the Security Council
immediately any aggressor threatened to use force to extort
concessions. It would be impossible for Australia to ratify a
charter that contained such provisions.

6. Accordingly, we filed amendments to Chapter VIIIB which by
removing all doubt about the Council's power to lay down the terms
of settlement made clear the necessity for excluding matters of
domestic jurisdiction from VIIIB as well as from VIIIA. Our
amendment (see our E.34, 16th May [2]) is as follows-
'(3) If a situation calling for preventative or enforcement action
under paragraph (1) or paragraph (2) above has arisen out of a
matter which by International law is solely within the domestic
jurisdiction of the State concerned the Security Council shall not
make any recommendation or decision which would curtail that
State's lawful freedom of action but shall take in accordance with
this section whatever preventative or enforcement action is
necessary to maintain or restore international peace and
security.'
This amendment while precluding the Council from making any
recommendation or decision which curtailed the lawful freedom of
action of the State concerned nevertheless emphasises the
continuing responsibility of the Security Council for resisting
aggression and maintaining or restoring peace.

7. Before our amendments were filed, we learned that the United
Kingdom Delegation proposed to file an amendment clearly
expressing exactly the opposite intention, namely, that the
Council did have the power to interfere at the point where peace
was threatened even with the matters of domestic jurisdiction. We
informed them that this proposal was directly unacceptable to us
and sent a copy of our own proposed amendment.

8. Despite an exchange of views at the official level the United
Kingdom Delegation concurred with the other sponsoring Governments
in filing an amendment to deal with domestic jurisdiction in a way
which, as they afterwards admitted, still produces the effect to
which we had taken exception. Their proposal was to omit paragraph
7 of Chapter VIIIA altogether and to replace it by a new paragraph
in Chapter II (principles). This paragraph is as follows-
'Nothing contained in this Charter shall authorise the
organisation to intervene in matters which are essentially within
the domestic jurisdiction of the State concerned or shall require
the members to submit such matters to settlement under this
Charter but this principle shall not prejudice the application of
Chapter VIII Section B.'
9. Following on further exchanges of views at the official level
the subject was fully discussed at a meeting on 11th May of the
leaders of the British Commonwealth Delegations presided over by
Eden. I explained our objections to the proposal of the sponsoring
Governments and was emphatically supported by Smuts and Fraser.

Eden's legal adviser, Sir William Malkin, agreed with our
interpretation of the effect of the Big Four amendment. Eden
appeared not to have realised the full importance of the proposal
and was heard to ask Cadogan why they had agreed to it. It was
eventually agreed that the United Kingdom Delegation would
consider the matter further with a view to meeting the criticism
made by us and supported by the other Dominions.

10. We agreed that it was wise to place the exclusion of matters
of domestic jurisdiction among the principles of the organisation
so as to cover the action of all of its organs. Our objection was
that the concluding phrase of the Big Four amendment expressed as
an exception [to] the general principle amounted to a specific
assertion of the right to intervene under Chapter VIII B in
matters essentially of domestic jurisdiction. We urged that the
paragraph should not do more than make clear that the exclusion of
domestic jurisdiction would still leave unimpaired the Council's
powers to impose sanctions to curb aggression.

11. During the discussion it appeared that the Big Four amendment
had been couched in such wide terms in order to permit the
organisation to intervene if for example the oppression of
minorities such as Jews reached a point at which peace was
endangered. We urged that the proper course was to take such
matters out of the orbit of domestic jurisdiction by negotiating
an International Convention for promoting respect for basic human
rights and fundamental freedoms. We pointed out that one of the
Big Four amendments to Chapter V seemed to be expressly designed
to permit the Assembly to act in this direction.

12. After the meeting discussions continued with a view to finding
a satisfactory formula and on 16th May I forwarded to Halifax a
revised draft of the Big Four amendment. It would plainly be
necessary for the United Kingdom to obtain the agreement of the
other sponsoring Governments to any alteration of their amendment.

Accordingly we accepted the first part of the paragraph as it
stood and sought to facilitate general acceptance by proposing
simple alteration in the last clause alone. Our draft ran as
follows: 'Nothing contained in this Charter shall authorise the
organisation to intervene in matters which are essentially within
the domestic jurisdiction of the State concerned or shall require
the members to submit such matters to settlement under the
Charter. This paragraph does not affect the powers under the
Charter to take preventative or enforcement action against a state
which uses or threatens to use force in any manner inconsistent
with the Charter.'
13. The United Kingdom Delegation apparently did not agree to
support this draft but referred the whole matter for instructions
to London along with an alternative suggestion.

14. On 23rd May Halifax advised that the United Kingdom Government
was not prepared to ask the other sponsoring Governments to agree
to our draft but would be prepared to seek support for an
alternative proposal. This was to leave the Big Four amendment
untouched but to add to Chapter II another principle as follows:

'All members shall refrain from intervention in the domestic
affairs of other members.'
15. This proposal would have been an improvement from our point of
view upon the Charter as it stands and also upon the Big Four
amendment itself. An aggressor would not merely have infringed the
existing prohibition of the use or threat of force in
international relations but would have infringed an express
prohibition of intervention in our domestic affairs. Under such
conditions the Security Council might be expected to refuse to
require any concessions to be made to the aggressor. The
protection however would be indirect and incomplete and would
require complicated explanation especially as the direct assertion
of the Council's power to interfere would still stand.

16. On 24th May another British Commonwealth meeting took place at
our request. After hearing a vigorous statement of Australia's
difficulties, strongly supported by Fraser, Halifax agreed to look
further into an alternative suggestion which I had put forward in
the course of earlier discussions and which was mentioned again by
Fraser. This was simply to omit the whole of the controversial
last clause of the Big Four amendment. The paragraph would then
stand as a categorical exclusion on matters of domestic
jurisdiction. We urged again that such an exclusion did not in any
way imply an improvement of the Council's powers to restrain
aggression.

17. Later in the same day Halifax asked for consideration of yet
another suggestion but this was rejected as not removing but even
emphasising the features to which we had taken objection. Halifax
then agreed to seek authority from London to propose our
suggestion to the other sponsoring Governments. This authority was
given by London.

18. On 30th May at a further informal British Commonwealth
meeting, Halifax informed us that our proposal had been put at the
official level to the sponsoring Governments and had met with
general opposition. Smuts expressed the view that unless the
Dominions were assured of carrying their proposal it would be
unwise to raise the matter at all. The meeting adjourned to give
the matter further consideration, Halifax offering to take our
proposal up at the highest level with the sponsoring Governments
if we so desired.

19. Our view was that Australia could not possibly leave the
Conference with such an issue concealed and unresolved and
Halifax's offer to take the matter up with the heads of the other
Big Four Delegations was immediately accepted. We felt confident
that the other Governments could not have understood the full
implications of the present amendment but that in any case we must
in the last resort fight the matter out in the Conference and
could win.

20. On 1st June I went with Halifax to see Stettinius. It was
plain that Stettinius and his advisers had not been made aware of
the full implications of their own proposals. They are considering
the matter.

21. This issue is for the moment overshadowed by the crisis which
has arisen in connection with the veto provisions as applied to
the peaceful settlement provisions of Chapter VIII. Discussions
with the leaders of other Delegations will however take place as
soon as practicable. Meantime we are making every possible effort
to prevent any discussion on the merits in the technical committee
of the Conference which has to deal with Chapter II until the
sponsoring Governments have had an opportunity of deciding whether
or not to accept a revision of their amendments along lines
satisfactory to Australia.