The Dominions and San Francisco
CHARTER MUST BE AMENDABLE
By H. V. EVATT, Australian Minister for External Affairs
Delivered before the Royal Institute of International Affairs, London, April 9, 1945
Vital Speeches of the Day, Vol. XI, pp. 486-487.
MANY members of the United Nations, have recently made public their comments on the proposals for a General International Organization, to be considered at San Francisco. Their views accord strikingly with some of those which the Dominions have expressed. For the Dominions, as for other small and middle Powers, collective security is the best kind of security, always remembering that it has fallen to the lot of a comparatively .few powers to act collectively in both world wars so as to save all powers from aggression. It goes without saying therefore that the Dominions will welcome the prospects of an organization in which all the Great Powers of the world will act collectively for maintaining peace and security.
Place of the Lesser Powers
"Some features of the Dumbarton Oaks plan have given rise, among the lesser powers, to doubts and anxieties. Undoubtedly the Dumbarton Oaks plan, far more than the Covenant of the League of Nations, bases itself on the need of differentiating or discriminating between the five Powers on the one hand and all the rest of the nations on the other. For instance the proposed General Assembly, in which all States meet on a footing of equal rights, would have far more restricted functions than the Assembly of the League had. A cardinal fact is that the present plan gives almost unlimited authority to a small Security Council in which the "Big Five" preponderate. In the last resort the Council could even force the parties to a dispute to accept whatever settlement (including territorial settlements) might command itself to the Security Council. So great a power has never before been conferred upon any international body. It is regarded by the promoters of the Conference as very necessary in the interests of world peace.
The truth is that the Dumbarton Oaks plan as at present drafted bears very many characteristics of a mere prolongation into the years of peace, of the type of "Big Three" leadership that has been found necessary in order to win the war. This is the explanation and justification of the veto plan. At the same time and for the same reason it would be wise to regard the plan as being of a transitional rather than a permanent character. If that were conceded the organization could start off in the expectation that the Charter would be progressively modified and altered to fit the normal conditions of international relations after the period of postwar rehabilitation has been completed.
Power to Amend New Charter
It follows that the constitutional arrangements for amending the Charter are exceedingly important While extreme flexibility is undesirable, nothing could be less satisfactory than to place the nations of the world under an unyielding and over-rigid constitutional control. As to this the central difficulty, as the plan now stands, is that no amendment of the Charter will be possible without the unanimous consent of all the "Big Five". Any one of the five will therefore be able to make the present constitution immutable. This must be taken into account in considering the veto powers proposed to be given to the big powers in respect of other matters, including both peaceful settlement of disputes and the application of economic and military sanctions. Most of these could safely be retained providing the constitutional alteration was not itself made subject to the same absolute veto. For this reason the clause dealing with alteration is one or the most crucial provisions of the Charter.
Linking Power with Justice
Moreover the unlimited executive power that the barton Oaks plan gives to the Security Council is not balanced by anything that all all corresponds to a body exercising legislative powers within a State The Security Council is not in any way responsible directly to the Assembly as representing the community of States. Therefore it is all the more necessary to examine haw far the new constitution lays down for the direction of the Security Council such standards of good government, as respect for international law, justice and fair dealing, and the equal rights of all nations. Here again the Dumbarton Oaks plan as it stands requires review. Indeed, there is an impressive unanimity in the demand that has come from very many powers great, medium and small for embodying in the Charter such general principles as will serve to link Power with Justice in the exercising of its vast authority by the Security Council,
Experience within each State shows that even generally accepted standards of good government are not in themselves always sufficient to ensure that executive power is wielded in accordance with justice. Hence derives the so-called "rule of law" in British communities by which the application of executive authority is made, subject to the jurisdiction of the ordinary Courts of Law. It has been found that judicial institutions are indispensable as a check to executive power. A similar approach should soon be possible in the sphere of international relations. In the future more emphasis will therefore be placed on the exercise of the judicial function in the community of States and in particular on the jurisdiction of the Permanent Court of International Justice.
Importance of World Court
A welcome sign in this development is the fact that there is meeting to-day in Washington a Conference of Jurists. They are charged with the task of preparing a basis for the work of the International Court of Justice so as to embody a Judicial Chapter in the Dumbarton Oaks plan. It is to be hoped that this Conference will recommend that the continuity of the present. Permanent Court of International Justice which was established after the first world war shall be. continued. Even more important is the question of the Court's, jurisdiction in the future. Under, the original Statute of the Court a rather tentative beginning, was made in granting compulsory jurisdiction in certain justiciable disputes, so called because, they could be resolved according to legal standards and the rules of international law. The members of the League were given the option of signing a declaration accepting this jurisdiction and many did so including the United Kingdom and all the Dominions. However, many nations accepted with reservations that gravely limited and. restricted the automatic exercise of the World Court's jurisdiction; The time has now arrived when a broad step forward could be taken in the direction of enlarging the Court's effective area of jurisdiction by restricting the power of reservation and by making acceptance of the automatic jurisdiction of the Court in legal disputes a condition of membership in the international organization.
The World Court in its first 20 years of life did valuable work within the severe limits imposed by the restrictions I have mentioned. Moreover no State ever refused to carry out or comply with any of the Court's decisions, though some of the cases had aroused strong political feeling. The future working of the World Organization will be greatly helped if access to the Court is made possible whenever, international disputes of a legal or justiciable character are not disposed of by conciliation or direct negotiation. By such means the Court would be given an opportunity of developing a code of sound international law and practice which could help greatly in assisting and balancing the Security Council vested as it will be with vast executive, authority.
I am hopeful that in these great matters the present meeting of the United Kingdom and British Dominion Representative will make a contribution which, will be of enduring and not merely of temporary value to the cause of world peace and welfare.