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Published online by Cambridge University Press: 09 March 2016
The tendency to hold the United States entirely responsible for the domestic jurisdiction reservation has diverted attention from the role of the Commonwealth members in the definition of that clause. Commonwealth members were concerned with it at the Paris Peace Conference and the San Francisco Conference and, as members of both world organizations established at those conferences, have taken a lead in applying the reservations drafted on both occasions. At San Francisco it was the Australian, Herbert V. Evatt, as well as John Foster Dulles, who proposed broadening the effect of the domestic jurisdiction reservation in Article 2, paragraph 7, of the Charter of the United Nations. It was again Evatt who headed the sub-committee of the Security Council to determine international competence to deal with the Franco regime in Spain and who managed the reversal of the limitation for which he had fought at San Francisco. It was in a dispute between India and the Union of South Africa that the General Assembly elaborated on the beginning made by Evatt in developing the concept of “international concern.” In the World Court the Commonwealth countries have been parties to leading cases involving domestic jurisdiction and, perhaps partly through their capable legal arguments, have succeeded in having their views incorporated into Court opinions and decisions. The Permanent Court of International Justice, for example, adopted much of the British argument in its Advisory Opinion in the Tunis-Morocco Nationality Decrees case.
1 Credit has gone to the United States, no doubt, because: (1) it was President Wilson who introduced the term in the Paris Peace Conference by inserting it in the reservation in Article 15, paragraph 8, of the Covenant, and (2) it was the United States Senate that developed the attention-getting reservation to the acceptance of the obligatory jurisdiction of the International Court of Justice.
2 Harper, Normal and Sissons, David, Australia and the United Nations 146 (1959).Google Scholar
3 A more detailed account is available in Chapter 6 of Wilson, Robert R. (ed.), The International Law Standard and Commonwealth Developments (1966).Google Scholar For an analysis of some of the technical problems of applying domestic jurisdiction reservations, see Howell, John M. and Wilson, Robert R., “The Commonwealth and Domestic Jurisdiction,” 55 Am. J. Int’l L. 29–44 (1961).Google Scholar
4 There is no entirely satisfactory definition in a previous study. In 1953, the Lebanese delegate to the General Assembly suggested somewhat facetiously that the Australian delegate read Principia Mathematica in order to get a clearer view on the subject. The Australian delegate later replied that the reading had not thrown any new light on the problem, but he suggested recourse to the Institutes of Justinian. GAOR, Eighth Session, First Committee, 83.
5 The fullest examination of the idea of international concern has been made by Preuss, Lawrence in “Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction,” 74 Recueil des Cours 553–653 (1949).Google Scholar Published separately under the same title (1949).
6 The most widely copied reservation to restrict the obligation to arbitrate disputes was in the British-French treaty of 1903. Article I referred to differences of a “legal nature,” but excepted vital interests, independence, national honour, and interests of third parties: see Wilson, Robert R., “Reservation Clauses in Agreements for Obligatory Arbitration,” 23 Am. J. Int’l L. 79 (1929);CrossRefGoogle Scholar 96 British and Foreign State Papers 35 (1902–1903).
7 Early drafts of the Covenant contained no domestic jurisdiction reservation. Apparently the first suggestion of a reservation came to Wilson from Secretary of State Robert Lansing before the publication of the draft Covenant and the development of popular opposition in the United States. Tasker H. Bliss later suggested that a provision should be made to prevent the League from “intervening in the domestic affairs of any nation.” After Wilson’s fourth draft of the Covenant was presented to the plenary session of the Conference, public opposition developed in the United States. As that opposition began to centre around the possibility of interference in specific policies regarding immigration and tariff, some attempt was made to establish that the League’s powers would be more limited than these fears assumed. Senator Hitchcock suggested that the objections to the League should be answered with specific reservations, the first of which would be a guarantee “to each high contracting party of its exclusive control over domestic subjects.” Ex-President Taft made substantially the same suggestions, and he sent a memorandum to the President which contained a draft reservation almost identical with the one proposed by Wilson. After some drafting work on the part of his staff which did not result in important changes, Wilson proposed a domestic jurisdiction reservation at the twelfth meeting of the Conference on March 24. Apparently it was adopted without discussion on that day. This chain of events has led some to conclude that the reservation arose solely, or primarily, from the internal political situation in the United States. The parts of this account have been related in more detail in For. Rel., Paris Peace Conference, I, 497–503, 515–16, 523–26; Miller, David Hunter, The Drafting of the Covenant, 1, 276–77, 298 (1928),Google Scholar Theodore Marburg and Flack, Horace E. (eds.), Taft Papers on League of Nations 326–27 (1920).Google Scholar
8 Cited after Carter, Gwendolen M., The British Commonwealth and International Security: The Role of the Dominions, 1919–1939, at 4 (1947).Google Scholar
9 Ibid., 7.
10 Glazebrook, G. P. deT., Canada at the Peace Conference 5 (1942).Google Scholar
11 Carter, op. cit. supra note 8, at 10.
12 P.C.I.J., Ser. D, VI, 46–54; Ser. E, XII, 335; Ser. E, XV, 215–16.
13 Cordell Hull, Memoirs, II, at 1705 (1948). The same credit is given in Russell, Ruth B., A History of the United Nations Charter: The Role of the United States, 1940–1945, at 463 (1958).Google Scholar
14 Ibid., 423.
15 The United States apparently proposed a change in the Dumbarton Oaks Proposals reservation on May 2, 1945, to the other sponsoring governments. The United States would have deleted “by international law” and “solely” from the formula and left it in the section regarding pacific settlement. A sub-committee on domestic jurisdiction considered the proposed change, but came to no agreement. Just before the deadline for submitting substantive amendments to the Conference, the foreign ministers of the sponsoring governments agreed upon a compromise “which combined the United States and Soviet suggestions.” The content of the Soviet proposals apparently was not recorded. See Postwar Foreign Policy Preparation, 1939–1945, Department of State Publication 3580, General Foreign Policy Series 15, at 443–45) 679–82 (1950).
l6 UNCIO, VI, 511–12. For a statement that the substitution of “essentially” for “solely” was primarily the work of Evatt, see Norman Harper and David Sissons op. cit. supra note 2, at 145n. Geoffrey L. Goodwin credits the United States and Australia with the moving of the reservation to the chapter on principles: see his book, Britain and the United Nations, 38n (1957).
17 UNICO, III, 551–52.
18 Evatt, , Vere, Herbert, The United Nations 15–16 (1947).Google Scholar
19 UNCIO, VI, 498.
20 UNICO, VI, 438–39. Verbatim Minutes of Committee I/i of the San Francisco Conference (Unpublished, Microfilm copy), June 13, 1945, Sub. No. B-ii, Running Number 32.
21 UNCIO, VI, 440.
22 T.I.A.S. No. 1598; 1 U.N.T.S. 10; I.C.J. Yearbook 218 (1946–1947).
23 When asked during the debate on the Queen’s speech whether he thought the new British reservation would cover the same area as the United States reservation, the Foreign Secretary answered rather ambiguously, but later added: “It seems to me, however, that one has to preserve the essential rights of this country.…I maintain that if we exercise our rights, our proceedings should not be subject to the jurisdiction of the International Court unless everybody accepts the same jurisdiction”: 577 H.C. Deb. (5th ser.) 475–76 (1957).
24 [1983] P.C.I.J., Ser B, No. 4, at 24.
25 In fact, the possibility of a repercussions approach was often not read into the Court’s statement. For a recognition of such a possibility, see de Visscher, Charles, Théories et realities en droit international public, 273–74 (1953);Google Scholar Eeckman, Paul, “The Domestic Jurisdiction Clause in the Charter: A Belgian View,” 9 International Organization 482–83 (1955).Google Scholar
26 On Commonwealth distrust of definitions, inflexible statements of principles and abrupt changes of statutes, see de Smith, S. A., The Vocabulary of Commonwealth Relations , Institute of Commonwealth Studies, Commonwealth Papers, No. 1, at 6–9 (1954).Google Scholar
27 SCOR, First Year: First Series ( 1946), No. 2, 181.
28 Ibid., 195.
29 Ibid., 315.
30 Ibid., 344–45, 353–54.
31 GAOR, First Session Part 2, Joint Committee of the First and Sixth Committees, 3, 52–53. See also India and the United Nations 110, 113 (1957).
32 Ibid., Second Session, First Committee, 451; ibid., Third Session, Part 2, First Committee, 256; ibid., Plenary Meetings, 438.
33 Ibid., Ad Hoc Political Committee, 67–68, 96.
34 Ibid., 7.
35 Ibid., Fourteenth Session, Special Political Committee, 67–68. In the vote, the United Kingdom voted against the resolution and Australia and Canada abstained. New Zealand joined the new members in voting for the resolution: see ibid., 102.
36 Ibid., Ninth Session, General Committee, 8; ibid., Plenary Meetings, 53.
37 Ibid., Tenth Session, Plenary Meetings, 54.
38 Ibid., 56, 62, 65. The older Commonwealth members have made frequent references throughout the South African cases to the impracticality of United Nations discussion. During the Suez crisis, references to “sovereignty” were more frequent than references to “domestic jurisdiction.” Howell, John M., “The Application of the Concepts of Domestic Jurisdiction and Aggression in the Suez Crisis,” Tulane Studies in Political Science, 4, at 51–55 (1957).Google Scholar
39 It was suggested in a general review of recent Australian foreign policy that the Commonwealth, “as a Commonwealth,” has not greatly influenced the thinking of its individual members; that their relationship has been essentially with the United Kingdom in each particular case; that there has been a “comparatively slight” degree of connection between Canada and Australia, or New Zealand and South Africa. Gordon Greenwood in Australia in World Affairs, 1956–1960, at 56 (1963). It does not seem that this has been the case in the narrower problem of domestic jurisdiction, for the Australian view on such a problem as race in South Africa seems to have been not a matter of Australia’s relationship to the United Kingdom, but Australia’s idea of the Commonwealth, as such, and Australia’s ties with South Africa at that time. Australian ideas on race were naturally reflected.
40 On issues that have “sharply divided” the Commonwealth in the postwar period, see Cowen, Zelman, “The Contemporary Commonwealth: A General View,” 13 International Organization 213–15 (1959)Google Scholar. See also Millar, Thomas B., “The Commonwealth and the United Nations,” 16 International Organization 736–57 (1962).Google Scholar
41 The strains that these differences put on the unity of the Commonwealth will not be considered here; however, the postwar interpretation of domestic jurisdiction could be regarded as such a divisive force. Dr. Malan, for example, complained that the British policy of putting the colonies on the same footing as existing members of the Commonwealth “and the United Nations with its policy of ‘intervention’ in the domestic affairs of its members, were between them killing the Commonwealth”: cited after “Dr. Malan and the Commonwealth” 41 Round Table 219 (1951).
42 In 1949 Nehru spoke of the preference for bringing the South African case before the United Nations, because if brought within the purview of the Commonwealth it would imply that the Commonwealth was “some kind of a superior body which sometimes acts as a tribunal…or in a sense supervises the activities of its member nations. That certainly would have meant a diminution of our independence and sovereignty…”: cited after 24 Indian Information 545 (1949). See also Kodanda Rao, P., “India: The Republican Dominion,” 25 Current History 334–35 (1953).Google Scholar It has been suggested that some Commonwealth disputes can be better settled in the United Nations than through the Commonwealth arrangements, because the other members of the Commonwealth can avoid identifying themselves with one side or the other in the United Nations, whereas they cannot in Commonwealth settlement: see Geoffrey L. Goodwin, op. cit. supra note 16, at 61. Gwendolen M. Carter has said that in disputes between Commonwealth members in the United Nations it has been countries outside the Commonwealth that have recognized the special ties existing between Commonwealth members and suggested by implication that special responsi-bilities arise as a result: see “The Commonwealth in the United Nations,” 4 International Organization 252 (1950). Millar, op. cit. supra note 40, at 752, suggests that the United Nations has been both a “safety valve” and a “fire beneath the pot” for intra-Commonwealth disputes.
43 Underbill, Frank H., The British Commonwealth: An Experiment in Cooperation Among Nations 87 (1956).Google Scholar
44 GAOR, Eleventh Session, Special Political Committee, 35, 62 ; ibid., Twelfth Session, Special Political Committee, 52, 87–89; ibid., Thirteenth Session, Plenary Meetings, 192; ibid., Special Political Committee, 31; ibid., Fourteenth Session, Plenary Meetings, 162.
45 Official realization of the similarity of the South African position and that of Australia was implied in Menzies’ statement (regarding the Australian migration bill) that if Australian policy were challenged in an international body, Australia would “be in the hands of a jury most of whose members have in the past freely accepted masses of migrants of different races and colours”: Australia, Parliamentary Debates, House of Representatives, Vol. 202, 1136 (June 16, 1949). Public opinion in Australia appears to be strongly behind the official attitude. Although there have been instances in which the government was criticized for its position on South Africa, it has been reliably reported that press opinion in Australia unanimously agreed that United Nations action would be illegal. See for examples Harper, Norman D., “Australia and Southeast Asia,” 28 Pacific Affairs, 217–18 (1955);CrossRefGoogle Scholar Norman Harper and David Sissons, op. cit. supra note 2, at 315.
46 GAOR, Seventh Session, Ad Hoc Political Committee, 46.
47 New Zealand, Department of External Affairs, The United Nations: Report of the New Zealand Delegation on the Second Part of the First Regular Session of the General Assembly, Publication No. 33, 44.
48 New Zealand, Department of External Affairs, External Affairs Review, IV, No. 12 (1954), 9
49 Anglin, Douglas G., “Canada and Apartheid,” 15 International Journal 122–37 (1960);Google Scholar Soward, F. H. and Mclnnis, Edgar, Canada and the United Nations 212–14 (1956);Google Scholar Eayrs, James, Canada in World Affairs; October 1955 to June 1957, 230 (1959);Google Scholar H.C. Deb. (Can.), Vol. I, 1952, at 724, 733; H.C. Deb. (Can.), Vol. II, 1954, at 1604; ibid., Vol. IV, at 3369.
50 Harper, N. D., “Race Relations and the Commonwealth of Nations,” 8 The Australian Outlook 202 (1954).CrossRefGoogle Scholar
51 Report on the Proceedings of the Fifth Session of the General Assembly of the United Nations Held at New York, 19th September – 15th December, 1950, Cmd. 8264, 37.
52 The Work of the Fifth Regular Session of the General Assembly of the United Nations, Cmd. 8179, 5.
53 Report on the Proceedings of the Sixth Session of the General Assembly of the United Nations held at Paris, 5th November, 1951 – 4th February, 1952, Cmd. 8547, 26–27.
54 546 H.C. Deb. (5th ser.) 31–33 (1957).
55 595 H.C. Deb. (5th ser.) 840 (1958).
56 596 H.C. Deb. (5th ser.) 335 (1958).
57 Millar, op. cit. supra note 40, at 752.
58 GAOR., Fifteenth Session, Special Political Committee, 77.
59 GAOR., Third Session, Part 2, Ad Hoc Political Committee, 98.
60 Ibid., 101, 103. Regarding Article 2, paragraph 7, the New Zealand delegate made the rather astonishing claim that New Zealand had “strongly objected to its inclusion in the Charter” at San Francisco, “because it had realized, even at that time, that it might be interpreted to prevent the General Assembly from taking action on certain matters”: ibid., 102.
61 Ibid., 105.
62 Ibid., 173–76; ibid., Plenary Meetings, 273.
63 Ibid., 751, 759, 777; ibid., Third Session, Part 2, Plenary Meetings, 163.
64 Ibid., Third Session, Part 1, Sixth Committee, 778.
65 Ibid., Ninth Session, Plenary Meetings, 60.
66 Ibid., First Committee, 545, 564.
67 Ibid., 567.
68 Ibid., Tenth Session, General Committee, 4; ibid., Plenary Meetings, 62.
69 Ibid., 65.
70 SCOR, Second Year, No. 67, 1622.
71 Ibid., 1628.
73 Ibid., No. 68, 1656, 1674.
73 See for illustration, GAOR., Seventh Session, First Committee, 214; SCOR., Eighth Year, 619th Meeting, 10.
74 GAOR., Tenth Session, Plenary Meetings, 174.
75 Occasionally they would abstain instead of opposing. See, for example, GAOR, Eighth Session, Plenary Meetings, 293.
76 Ibid., Seventh Session, First Committee, 227. It has been suggested that the average Canadian’s sympathies are likely to deter him from wholehearted partisanship in North African troubles, but that if there is any dominant sentiment, “it springs from a friendship for France and a concern over anything that may weaken her”: see Soward and Mclnnis, op. cit. supra note 49, at 232.
77 GAOR, Second Emergency Special Session, 2, 52.
78 Ibid., 2.
79 Ibid., 3, 54.
80 Ibid., 12, 16, 17–18.
81 Delegates of India and Ceylon explained their abstentions on the ground of lack of instructions: see ibid., 40, 44.
82 Ibid., Eleventh Session, General Committee, 1; ibid., Plenary Meetings, 22–23.
83 Ibid., 167.
84 Ibid., 187.
85 Busschau, W. J., “South Africa and the Revision of the United Nations Charter,” in Revision of the United Nations Charter: A Symposium 103 (1956).Google Scholar
86 Norman Harper and David Sissons, op. cit. supra note 2, at 23.
87 Ball, M. Margaret, “Bloc Voting in the General Assembly,” 5 International Organization 25–26 (1951);Google Scholar Carter, Gwendolen M., “The Commonwealth in the United Nations,” 4 International Organization 258 (1950).Google Scholar
