Internationalist Vision for a Postwar World:
H. V. Evatt, Politics & the Law
Emma Ede
A thesis submitted in partial fulfilment of the requirements for the degree of
B.A. (Hons) in History.
University of Sydney
October 2008
THESIS ABSTRACT
Herbert Vere Evatt, Minister for External Affairs in the postwar period (1941 – 1949), has been labelled by his contemporaries, biographers and historians as an internationalist. He is most often associated with playing a pivotal role in the formation of the UN, with advocating an independent Australian foreign policy and with increasing Australia’s involvement in the Asia-Pacific region. Evatt’s commitment to an internationalist framework was however, mitigated by his adhesion to a set of political and legal ideologies that effectively undermined the vision he promulgated for the postwar world.
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Contents
ACKNOWLEDGEMENTS 3
ARCHIVAL ABBREVIATIONS 4
INTRODUCTION 5
CHAPTER I: The Constitution, The Commonwealth and The Crown 14
CHAPTER II: White Australia and the Formation of the United Nations 30
CHAPTER III: Trusteeship and Australian Involvement in Papua New Guinea 55
CONCLUSION 71
BIBLIOGRAPHY 77
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Acknowledgements
My sincerest thanks go to Glenda Sluga, for her expertise and her encouragement;
To Robert, Mathilde, Anne, Ida and especially to Lauren, for their very constructive criticisms;
To my Dad, for sharing his passion for history;
And finally to Matthew, for his love, his patience and his humour.
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Abbreviations
AA National Australian Archives, Canberra
CPD Commonwealth Parliamentary Debates
DAFP Documents on Australian Foreign Policy
DFAT Department of Foreign Affairs and Trade, [Online]
EC Evatt Collection, Flinders University Library, Adelaide
ICJ International Court of Justice
FRUS Foreign Relations of the United States, Diplomatic Papers
NLA National Library of Australia, Canberra
NSW PD New South Wales Parliamentary Debates
PRO/FO Public Record Office/Foreign Office, London
UN United Nations
UNCIO United Nations Conference on International Organisation
Introduction
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Political oratory in the postwar period was infused with the language of internationalism. In 1943,
former presidential hopeful Wendell Willkie published a travelogue entitled One World in which
he implored world leaders to cooperate after the war, criticised colonialism and pleaded for racial
freedom not only in foreign empires but within the United States.1 It was a message that inspired
Australia’s Attorney General and Minister for External Affairs, Herbert Vere Evatt (1894 –
1965). Evatt championed the book’s message; that global interdependence rather than isolationism was a necessary precondition for world peace.2 After the Second World War the
prospect of an organisation that would unite the world’s citizens reinvigorated a sense of global
community.3 Groups that might once have seemed completely disconnected were finding
congruence in their demands for change in the postwar world. Race was unavoidably on the
agenda. The Chinese Government, African Americans and emerging nationalist groups in
colonised countries were all vocal about their demands for global racial equality. During the war
the American Government had been placing pressure on the old European empires to amend their
archaic imperial practices.4 When representatives of Allied nations came together at San
Francisco in 1945 to draft a Charter for the new United Nations (UN), their intention was to
create an international security organisation that could both alleviate the suffering of many of the
world’s citizens and avoid ‘the tragedy of a third world war’.5
As Attorney General and Minister for External Affairs under the Curtin and Chifley Labor
governments (1941 – 1949), Evatt has long been associated with the internationalist impetus of
1 Wendell Willkie, One World (London: Cassell, 1943). 2 Herbert Vere Evatt, The Task of Nations (New York: Duell, Sloan and Pearce, 1949), pp. 209, 235. 3 Norman Bentwich and Andrew Martin, A Commentary on the Charter of the United Nations (London: Routledge & Kegan Paul, 1950), p. vii. 4 Rudolf von Albertini, Decolonization: the Administration and Future of the Colonies, 1919 - 1960; (trans. Francisca Garvie), (New York: Africana Publishing Company, 1982), pp. 21 -23. 5 Herbert Vere Evatt, ‘The Future of the Pacific’, Pacific Historical Review Volume 14, Number 2 (June 1945), p. 145.
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the postwar period, with pursuing an agenda founded upon universal human rights and
democratic principles.6 In fact, Evatt’s pursuit of internationalist objectives arose predominantly
out of his desire to secure for Australia a more central role in international affairs after the war.
He believed that small and middle powers would shoulder more international responsibility under
a democratic world order that promoted multilateral and institutional diplomacy.7 In order to guarantee Australia an autonomous presence on the world stage, Evatt sought to disassociate
Australia’s foreign policy from Whitehall. In his personal appearances at world forums and in the articles and speeches he presented to the world press, Evatt promoted an ideal of the British
Commonwealth as a family of equals rather than a collection of weak dependencies reliant upon the motherland.8 Finally, Evatt sought to elevate Australia’s status in the Pacific region by
encouraging the view that Australia was a security power. Evatt saw no discontinuity between
these various objectives. They were all harmoniously connected to an internationalist vision of
global cooperation rather than isolationism. He believed that a focus on Pacific security was not
inconsistent with, but rather was ‘patterned within, the supreme objective of world security’.9
Similarly he suggested that internationalism and nationalism were ‘closely interwoven’. Evatt argued that Australian security, prosperity and democracy were ‘dependent upon the attainment of security, prosperity and freedom in other lands.’10
The term internationalist, as it applies to Evatt, has been provided with various ill-assorted working definitions by the biographers and historians who have documented Evatt’s foreign
6 Michael Kirby, ‘H. V. Evatt: Libertarian Warrior’, Inaugural HV Evatt Memorial Address Evatt Foundation: Parliament House Sydney, 30 August 1991 in Evatt Collection (EC), Folder: Evatt – biographical; Christine de Matos, ‘Encouraging 'Democracy' in a Cold War Climate: The Dual-Platform Policy approach of Evatt and Labor toward the Allied Occupation of Japan 1945-1949’, Pacific Economic Papers No. 313 (March 2001), p. 3; Sally Loane, ‘Evatt Examined’, Spectrum; Sydney Morning Herald 30 April 1994, p. 5. 7 Herbert Vere Evatt, ‘World Wide Security Found only in World Wide Organization: Great Power Difficulties would have been Greater Without the United Nations’, Vital Speeches of the Day Volume 15, Issue 13 (April 15 1949), pp. 415 – 416. 8 Herbert Vere Evatt, ‘The Outlook of the British Commonwealth of Nations’, EC, Folder: Evatt – Publications. 9 Herbert Vere Evatt, ‘The Future of the Pacific’, p. 147. 10 Herbert Vere Evatt, Postwar Reconstruction: A Case for Greater Commonwealth Powers (Canberra: L. F. Johnston, Commonwealth Government Printer, 1942), p. 41
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policy since the 1970s. The first point on which historians have disagreed is the extent to which
Evatt’s commitment to internationalist ideals operated in accordance with his pursuit of
Australian interests. One particular policy that Evatt defended as being in the nation’s best
interest was the White Australia Policy. The first comprehensive biography of Evatt was
published in 1970 by family friend and Evatt loyalist Kylie Tennant.11 Tennant saw no
incongruity between Evatt’s pursuit of internationalist ideals and White Australia. In her
biography, Evatt is seen wearing himself out trying to ‘adjust the machinery for peace on earth’,
‘cajoling, persuading, flinging himself on any lever that would move nations from their ancient
paths of treachery and violence’.12 Tennant is essentially an apologist for White Australia,
defending it in terms similar to Evatt as an ‘economic policy’, reminding her readers that Chinese
immigrants in the Northern Territory had brought leprosy, polluted the water and ‘refused to
abide by the customs of the white workers’.13 Tennant’s work is the least critical of all the
biographies produced by Evatt loyalists.
Department secretary and Washington ambassador Alan Renouf, also an Evatt supporter, did
recognise the extent to which White Australia was irreconcilable with Evatt’s promotion of
human rights. Renouf argued that this ‘glaring inconsistency’ between Evatt’s liberalism, his
‘addiction to principle in External Affairs’ and his nationalism never appeared to occur to Evatt.14
Renouf made no attempt however to understand either the origins of these incompatible ideologies or the consequences that they had on the internationalist movement. Both Renouf and
Evatt’s private secretary, Allan Dalziel, reconciled Evatt’s nationalist and internationalist agendas by focussing on his overriding commitment to the principle of justice that they argued permeated both allegiances. Dalziel argued that domestic politics never stunted nor impaired Evatt’s vision
11 Kylie Tennant, Evatt: Politics and Justice (Sydney: Angus and Robertson Publishers, 1970). 12 Tennant, Evatt: Politics and Justice, p. 192. 13 Tennant, Evatt: Politics and Justice, p. 58. 14 Alan Renouf, Let Justice be Done: The Foreign Policy of H. V. Evatt (St Lucia: University of Queensland Press, 1983), p. 101.
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for an end to colonialism, for the forging of relationships with African and Asian nations, and for
unswerving support of the principles embodied in the UN Charter.15 Renouf recognised that
Evatt’s defence of White Australia and his desire to consolidate Australian control over Papua and New Guinea were both intended to secure Australian interests. Nevertheless, the extent of the inconsistency between these policies and the ideals of internationalism is mitigated by Renouf’s focus on the commitment to justice that permeated Evatt’s political philosophy. He wrote that
Evatt’s ‘driving force was a passion for political, economic and social justice’.16 His commitment
to Australian control over the trust territory of Papua and New Guinea was justified by Renouf as
being a commitment to the justice of guardianship.17
The practice of recognising the discrepancy between Evatt’s nationalist and internationalist ideals
has been continued by less devoted and more analytical Evatt biographers. W. J. Hudson
described Evatt as a ‘meddling internationalist’ who pursued ‘positive internationalist goals while
at the same time trying to protect Australian national interests.’18 Paul Hasluck, an Australian
diplomat who served the Department of External Affairs from 1941 – 194719 credited Evatt with a ‘genuine Australianism’ but suggested that his desire to have an Australian voice heard on the world stage was often simply an end in itself.20 He criticised the disposition within Australian
foreign policy to ‘throw stones at street lights just because they are bright’.21 Hasluck also argued
in his memoir Diplomatic Witness, that Evatt had limited expertise in the areas of international
affairs and international law, and that his interest in each field was predominantly a result of
15 Allan Dalziel, Evatt: The Enigma (Melbourne: Lansdowne Press, 1967), p. 153. 16 Renouf, Let Justice be Done, p. 249. 17 Renouf, Let Justice be Done, p. 250 18 W. J. Hudson, Australia and the New World Order: Evatt at San Francisco1945 (Canberra: Australian National University, 1993) p. 7. 19 Christopher Hubbard, ‘From Ambivalence to Influence: Australia and the Negotiation of the 1968 Nuclear Non-Proliferation Treaty’, Australian Journal of Politics and History Volume 50, No. 4 (December 2004), pp. 531 and 534; Philippa Macaskill, More than an ‘Imitation Englishman’: Paul Hasluck and the Puzzle of Australian Nationalism Honours Thesis, University of Sydney, 2007, pp. 28 – 29. 20 Hasluck, Diplomatic Witness, p. 28. 21 Paul Hasluck, Workshop of Security (Melbourne: F. W. Cheshire, 1948), p. 178.
8 | Page political opportunism during and after the war.22 Another of Evatt’s contemporaries, senior
Australian diplomat Malcolm Booker, believed Evatt’s foreign policy to have been marked by
‘cynicism and self-assertion’.23
Evatt is often positioned at the beginning of a narrative that is neatly encapsulated by the catchphrase ‘from Evatt to Evans’.24 This narrative suggests that Australian foreign policy, as distinct from a colonial reliance upon British diplomacy, developed organically from the internationalist focus of Evatt’s political outlook, to the ‘good global citizen’ agenda of former foreign minister Gareth Evans. It is a narrative that Evans and the Labor Party have themselves encouraged.25 Evatt was actively involved in both the formation of the UN and in its operation.
He was president of the Atomic Energy Commission in 1946, chaired the Committee on Palestine in 1947 and became the General Assembly’s Third President in 1948. The degree to which he was committed to the organisation is for many the measure of his internationalist outlook.
Historian Dean Ashenden has argued that Evatt was ‘seized’ by the compatibility between UN functions and Australian needs. Ashenden described the UN as the focus of Evatt’s foreign policy
22 Paul Hasluck, Diplomatic Witness: Australian Foreign Affairs, 1941 – 1947 (Carlton: Melbourne University Press, 1980), pp. 26, 27 and 29. 23 Malcolm Booker, The Last Domino: Aspects of Australia’s Foreign Relations (Melbourne: Sun Books, 1976), p. 107. 24 For example; David Lee and Christopher Waters (eds.), Evatt to Evans: The Labor Tradition in Australian Foreign Policy (St. Leonards: Allen & Unwin, 1997); Ian Russel, ‘Australia’s Human Rights Policy: From Evatt to Evans’, in Ian Russel, Peter Van Ness and Beng-Haut Chua (eds.), Australia's Human Rights Diplomacy (Canberra: Australian Foreign Policy Publications Programme, Department of International Relations, Research School of Pacific Studies, Australian National University, 1992), pp. 3 – 48; Meg Gurry, ‘Identifying Australia’s ‘Region’: From Evatt to Evans’, Australian Journal of International Affairs Volume 49, No. 1 (May 1995), pp. 17 – 31. 25 Gareth Evans, ‘A View from the 1990s’, in Lee and Waters , Evatt to Evans: The Labor Tradition in Australian Foreign Policy, p. 12; Evans looks to Evatt’s policies to enrich the history of Australia’s good international citizenship, commitment to the UN and various Asia-Pacific forums, and Australia’s relationship with Israel; Gareth Evans and Bruce Grant, Australia's Foreign Relations in the World of the 1990s (Carlton: Melbourne University Press, 1991), pp. 23, 37, 62 – 64, 263; Paul Keating, ‘John Curtin's World and Ours’, Speech, Perth, 5 July 2002, available at The Hon. Paul Keating Official Website,
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and the ‘church of his religion’.26 Similarly, Buckley, Dale and Reynolds depicted Evatt as both an ‘unceasing defender’ of the UN and as ‘one of its architects’. 27
Conversely, Evatt’s detractors have argued that Evatt was interested in the UN only as a vehicle
through which to promote his political career.28 His political contemporaries in opposition condemned his commitment to the UN as a contradiction of his patriotism. Percy Spender argued that as an internationalist, Evatt failed to be an Australian.29 Billy Hughes criticised Evatt’s loyalty to a ‘hopelessly futile, garrulous institution, incapable of preserving peace’.30 In the early
1990s, the publication of two Evatt biographies, the Buckley biography and Peter Crockett’s
Evatt: A Life, rekindled postwar ideological debates over Evatt’s internationalism and its supposed origins in leftist thinking.31 In a review of the collaborative biography Doc Evatt, which
had been commissioned by the left-leaning Evatt Foundation, conservative journalist Peter Ryan
criticised what he perceived as the authors’ preference for a communist methodology. He
suggested that far from being an architect of the UN, Evatt was only ‘one of the minor plumbing
contractors’, who brandished a wrench and banged loudly on the pipes. Ryan argued that ‘as the
foreign minister of a remote country of only 7 million people, Evatt had no hope of influencing
the ‘untrammelled will of the great powers’.32 Similarly, journalist and director of the Sydney
Institute, Gerard Henderson accused Buckley of ‘being fossilised in the heady ideological days of
26 Dean Ashenden, ‘Evatt and the Origins of the Cold War: Australia and the US with the UN in Greece, 1946 – 49’, Journal of Australian Studies Number 7 (November 1980), p. 93. 27 Ken Buckley, Barbara Dale and Wayne Reynolds, Doc Evatt: Patriot, Internationalist, Fighter and Scholar (Melbourne: Longman Cheshire, 1994), p. 302. 28 W. R. Crocker, Australian Ambassador: International Relations at First Hand (Carlton: Melbourne University Press, 1971), p. 82; Peter Ryan, ‘Pieces in the Evatt Puzzle’, Spectrum; Sydney Morning Herald 13 November 1993, p. 9. 29 Percy Spender, Commonwealth Parliamentary Debates (CPD), House of Representatives, Volume 294, 5 October 1949, p. 964. 30 William M. Hughes, U.N.O., Dr. Evatt and World Peace (Sydney: Boylan & Co., 1949), p. 2. 31 Bridget Griffen-Foley, ‘This Thing of Darkness: Public Representations of Dr H. V. Evatt’, Public History Review Volume 3 (1994), p. 65. 32 Peter Ryan, ‘Whitewashed by Committee’, Spectrum; Sydney Morning Herald 14 May 1994, p. 8.
10 | Page the 1950s’.33 In his review of Crockett’s biography, Ryan likened Evatt to Stalin and argued that
Evatt had twisted UN proceedings to obtain personal publicity.34 Accounts of Evatt’s adhesion to an internationalist framework have clearly been influenced by Australian party politics and by the tendency of some to associate Evatt with postwar communism.35 Yet, even Paul Hasluck who, though not an Evatt loyalist, did in his memoirs praise Evatt’s achievements, has suggested that
Evatt was more concerned with the success of pushing through Australia’s amendments to the
UN Charter than he was with the ‘emerging international situation’ of the postwar period.36
Despite the tendency of Evatt’s biographers to focus on his pursuit of national interests, there are other factors that complicate his reputation as an internationalist. In his body of work on Evatt’s role in the partitioning of Palestine, Daniel Mandel argued that Evatt was guided by his ‘ideal of furthering the cause of Zionism which he had adjudged to be right’, and that he did so at the risk of his ‘fondest ambition, the presidency of the United Nations General Assembly’.37 Likewise,
Frank Bongiorno has suggested that Evatt’s effectiveness on the international stage was reduced by his commitment to outdated models of Commonwealth citizenship.38 Missing from this literature on Evatt as an internationalist is a comprehensive exploration of the complexity of the
33 Gerard Henderson, ‘An Old Commie Fesses up About Those Reds Under the Bed’, Sydney Morning Herald 7 June 1994, p. 15; and Gerard Henderson, ‘Exit Left - A Few Of Those Myths From The Past’, The Age 7 June 1994, p. 19. For more of Henderson’s criticisms of Evatt see ‘The Irresponsibility Of Evatt Lives On After Four Decades’, The Age 4 October 1994, p. 15; ‘No Harm in Some Valuable Introspection’, Sydney Morning Herald 20 September 2005, p. 13. 34 Peter Ryan, ‘Pieces in the Evatt Puzzle’, p. 9; For a recent example of Ryan’s criticisms of Evatt see; ‘Manning Clark's Second Coming’, The Australian 10 February 2007, p. 29. 35 Lloyd Ross, ‘The Crisis of Australian Labor’ Foreign Affairs Volume 34 (1955), p. 320; see also, George Williams ‘The Suppression of Communism by Force of Law: Australia in the Early 1950s’, Australian Journal of Politics and History Volume 42, Issue 2 (April 1996), pp. 220 – 240. 36 Hasluck, Diplomatic Witness, p. 194. 37 Daniel Mandel, H. V. Evatt and the Establishment of Israel: The Undercover Zionist, (London & Portland: Frank Cass Publishers, 2004), p. 273; See also Daniel Mandel, ‘A Good International Citizen: H. V. Evatt, Britain, the United Nations and Israel, 1948 – 49’, Middle Eastern Studies Volume 39, No. 2 (April 2003), pp. 82 – 104, Daniel Mandel, ‘Dr H. V. Evatt at the United Nations: A Crucial Role in the 1947 Partition Resolution for Palestine’, Australian Historical Studies Volume 112 (1999), pp. 130 – 151. 38 Frank Bongiorno, ‘Commonwealthmen and Republicans: Dr. H. V. Evatt, the Monarchy and India’, Australian Journal of Politics and History Volume 46, No. 1 (March 2000), pp. 18 – 39; ‘British to the Bootstraps? H. V. Evatt, J. B. Chifley and Australian policy on Indian Membership of the Commonwealth, 1947 – 1949’, Australian Historical Studies Volume 125, (2005), pp. 18 – 39; ‘H. V. Evatt, Australia and Ireland's departure from the Commonwealth: A Reassessment’, Irish Historical Studies Volume 32, Issue 128 (November 2001), pp. 537 – 555.
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term as it applied to Evatt. His internationalism was not a fixed principle to which he consistently
adhered. Rather, it developed out of competing legal and political interests that forced him to
adopt a range of contingent and often incompatible subject positions.
This thesis will examine Evatt’s commitment to an internationalist framework in light of both a
contra legalism and his adhesion to a set of political ideologies that effectively undermined the
vision he promulgated for the postwar world. The first chapter will explore his proclivity for a
nationalist approach to international relations. In order to understand the seeming contradiction
between Evatt’s internationalism and his conservative aspiration to defend and prioritise
Australia’s interests, the chapter will map out the legal framework that compellingly pervaded
Evatt’s approach to world affairs. Evatt was first and foremost a constitutional lawyer, committed to the legal principles that bound the British Commonwealth of Nations. He was however, frustrated with British politicians and had ambitions to disengage Australian diplomacy from reliance upon its British counterpart. In spite of this, Evatt remained dedicated to the legal relationships that bound the Commonwealth and in particular, to the authority of the Crown as the source of governmental power in the dominions. This legal framework ultimately affected the degree to which Evatt could advocate the internationalist discourse of the postwar world, in particular, in his attempt to force Indian leaders to retain a legal commitment to the Crown in the
Constitution of their new republic.
The second chapter will explore the relationship between Evatt’s reputation as an internationalist and his defence of the White Australia policy. Through an examination of postwar idealism about racial equality, human rights and the end of empires, chapter two will make evident the degree to which Evatt’s views on race and nation were incompatible with the internationalist ideology to which he declared himself committed. Rather than attribute Evatt’s defence of White Australia to either an innate racism or to political expediency, the second chapter will flesh out the ways in
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which Evatt’s views on race were affected by his participation in the labour movement and his
attachment to the legal framework provided by constitutional law.
The third and final chapter of this thesis will challenge the image of Evatt as a champion for the rights of dependent peoples. Instead of advocating a liberal agenda in debates over the new UN
trusteeship system at San Francisco, Evatt’s proposals went little further than Britain’s and did
not fulfil the rhetoric of internationalist idealism that had been popularised during the war. In
comparison to the proposals of smaller states, particularly from Latin America, the Australian
view of trusteeship was little more than a reformed colonialism. Evatt was preoccupied by his
desire to retain control over the trust territories of Papua and New Guinea and to elevate
Australia’s status as a Pacific power. By employing the gradualist rhetoric of welfare, liberty and
self-governance, Australia was able to consolidate its hold over Papua and New Guinea in the
postwar period.
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Chapter I
The Constitution, The Commonwealth and The Crown
From his early judicial attempts to expand the constitutional power of the Commonwealth
Government over international issues,39 to his combative style of diplomacy while Minister for
External Affairs, Evatt consistently demonstrated a clear desire to encourage an independent
Australian foreign policy.40 He wanted Australia to possess equal, rather than subject, status to
Britain.41 Evatt’s desire for Australian autonomy in foreign relations was compounded by what he considered to be, the indifference shown by the major powers to Australian interests during the war. Like many Australian politicians who had gone before him, Evatt was engaged in an unrelenting effort to have Australia’s voice heard and considered by the major powers.42 The general Australian populace experienced a rapid disillusion after the Fall of Singapore in 1942, feeling that the security of Australia was no longer a priority for the British Government.43 This disillusion was magnified for Evatt, whose job required him to lobby American and British leaders for military aid in the Pacific, when both states had already decided between them to prioritise the European theatre and implement a ‘Beat Hitler First’ strategy.44 Evatt was
39 R. v. Burgess; Ex parte Henry [1936] HCA 52. 40 P. G. Edwards, Prime Ministers and Diplomats: The Making of Australian Foreign Policy, 1901 – 1949 (Melbourne: Oxford University Press in association with the Australian Institute of International Affairs, 1983), p. 140. 41 Herbert Vere Evatt, ‘Australia in British Commonwealth and World Affairs’, Broadcast on the B.B.C., 10 May 1946, in Herbert Vere Evatt, Australia in World Affairs, (Sydney: Angus and Robertson, 1946), p. 189 – 192. 42 C. W. P. Waters, ‘Voices in the Wilderness: H. V. Evatt and the European Peace Settlement, 1945 – 1947’, in David Day (ed.), Brave New World: Dr H. V. Evatt and Australian Foreign Policy (St Lucia: University of Queensland Press, 1996), p. 63. 43 David Day, ‘Pearl Harbour to Nagasaki’, in Carl Bridge (ed.), Munich to Vietnam: Australia’s Relations with Britain and the United States Since the 1930s (Melbourne: Melbourne University Press, 1991), pp. 54 – 55. 44 David Lee, Australia and the World in the Twentieth Century (Beaconsfield: Circa, 2006), p. 71; Neville Meaney, ‘Australia, the Great Powers and the Coming of the Cold War’, Australian Journal of Politics and
14 | Page exasperated by the absence of consultation45 and also by public statements made by American and British officials that reiterated the importance of the Atlantic war at the expense of the
Pacific.46 Australia was denied access to vital executive councils and when admitted was presented with issues that they were not expected to consider, giving an impression of inclusion that was entirely artificial.47 Evatt often believed that the ‘British were misleading Australia with incomplete information’.48 He was not shy when it came to expressing his displeasure with
British unresponsiveness. He did so explicitly in private cables49 and somewhat more tactfully in public speeches.50
This tenacity with which Evatt pursued his ambition for a self-directed Australian foreign policy and a distinct international persona has been the focus for many of his biographers and for political historians.51 Fascination with both the doggedness of Evatt’s character and the
History Volume 38, Issue 3 (1992), p. 319; See also Warren Kimball, ‘“Merely a Facade?” Roosevelt and the Southwest Pacific’ and Carl Bridge, ‘Impossible Missions: H. V. Evatt in Washington and London in 1942 and 1943’, in Day (ed.), Brave New World, pp. 10 – 29, 30 – 46. 45 Cablegram, Evatt to Curtin, Document 500, London, 28 May 1942, National Australian Archives, Canberra (AA): A4764, 2, in Documents on Australian Foreign Policy (DAFP), Volume 5 1941, July - 1942, June Historical Publications hosted by the Department of Foreign Affairs and Trade (DFAT),
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relationships he had with British statesmen should not be surprising. The many examples of Evatt
irritating British officials provide a rich resource for engrossing historical narratives. At the San
Francisco Conference he was labelled by British delegate, Charles Kingsley Webster, as
egotistical, ambitious and malignant. The British were infuriated by his attempt to limit the veto
(going so far as to ensure that his speech on the issue was not circulated among conference
members).52 Noted historian on Commonwealth relations, Bruce Miller, considered Evatt to be
highly nationalistic. He wrote that Evatt’s attitude towards Britain and the Commonwealth was
‘very much that of picking the eyes out of the opportunities offered, but accepting no
responsibility for anything that might go wrong.’ 53 On the world stage Evatt did not want foreign nations to think Australian policy would blindly comply with British directions. Being keen to advocate Australia’s interests at the expense of Britain’s veto power and to advance Australia’s position in the Pacific, he wanted to avoid going to San Francisco with any agreed joint
Commonwealth strategy.54 Foreign Secretary Anthony Eden wrote to Churchill from the
conference, ‘Evatt and Fraser [New Zealand Prime Minister] are making clear to the Americans
and all concerned that we do not control their voices’.55 These views reflected a broader pattern of disagreement between the post-war Labor governments of Attlee and Chifley. The failure of
British and Australian politicians to agree on matters of policy and approach in international affairs provides a framework upon which historians have approached Evatt’s attitude to Britain.56
established overseas, the status of those missions remained ambiguous due to a continuing hesitation, even by Evatt, about asserting a diplomatic role independent of the Empire; Malcolm Booker, ‘The First Fifty Years of Australian Diplomacy’ [Based on the Sixth Biennial Nan Phillips Memorial Lecture, 19 October 1995: Canberra and District Historical Society)], Canberra Historical Journal Issue 37, (March 1996), p. 8. 52 P. A. Reynolds and E. J. Hughes, The Historian as Diplomat: Charles Kingsley Webster and the United Nations, 1939 – 1946 (London: Martin Robertson, 1976), pp. 61, 63, 66, 71. 53 J. D. B. Miller, Britain and the Old Dominions (London: Chatto and Windus, 1966), pp. 133 – 134. 54 Cablegram, Forde and Evatt to Curtin, Document 73, London, 17 April 1945, AA: A1066, H45/772, DAFP, Volume 5, 1945, DFAT. 55 Anthony Eden, The Eden Memoirs: The Reckoning (London: Cassell, 1965), p. 534. 56 Christopher Waters, The Empire Fractures: Anglo-Australian Conflict in the 1940s (Melbourne: Australian Scholarly Publishing, 1995), p. 1; Christopher Waters, ‘Anglo-Australian Conflict Over the Cold-War: H. V. Evatt as President of the General Assembly: 1948 – 1949’, Journal of Imperial and Commonwealth History Volume 22, No. 2 (1994), p. 294.
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Historical accounts of Evatt’s nationalism have treated it as an ideology that came naturally to
him.57 In doing so, historians have left themselves free to explore the political consequences of
that ideology without explaining either its origins or the way in which it was problematised by
competing concerns. Some historians have recognised the influence that his legal background had
on his foreign policy. Dean Ashenden, in his examination of Evatt’s role with the UN in Greece,
argued that Evatt was devoted to the law; ‘for him it was not simply a profession or a social
institution, but a way of seeing, a construction of reality’.58 Particular attention has been paid to his empirical legalism that saw him attempt to resolve complex political questions through a strict application of legal rules and procedures.59 He had faith in the ultimate ability of institutions to deliver rational outcomes in irrational, highly charged, political situations. Evatt had admired the
League of Nations as an institution. He did not believe that the League had failed in its aspirations, its structure or its covenant; rather, he believed that its member states had failed it.60
In 1946, Evatt offered to act as Counsel for Britain in a dispute before the Security Council over
Albanian shore batteries and mines destroying British warships in the North Corfu Straight.61 He wanted all evidence to be referred to a sub-committee and was concerned that impartiality should be seen to be exercised at all stages in order to safeguard the prestige of the new organisation.62
Christopher Waters mounted a similar argument in regards to Evatt’s involvement in the Iranian
Crisis of 1946. He suggested that Evatt was anxious for the Security Council to operate in
compliance with the Charter of the UN and to ensure that its rulings were judicially independent
and not influenced by the interests of member states. It was through strict adherence to legal
57 Crockett, Evatt: A Life, p. 185; Tennant, Evatt: Politics and Justice, p. 141. 58 Ashenden, ‘Evatt and the Origins of the Cold War’, pp. 85 – 86. 59 Laurence W. Maher, ‘Half Light between War and Peace: Herbert Vere Evatt, The Rule of International Law, and the Corfu Channel Case’, Australian Journal of Legal History Volume 9 (2005), p. 48; Ashenden, ‘Evatt and the Origins of the Cold War’, p. 85. 60 Herbert Vere Evatt, ‘The Future of the Pacific’, p. 145. 61 Maher, ‘Half Light between War and Peace’, p. 47; For a detailed analysis of the Corfu Channel Case and the arguments presented by both the British and the Albanians, see ‘International Court of Justice’, International Organization Volume 3, No. 2 (May 1949), pp. 334 – 338. 62 Maher, ‘Half Light between War and Peace’, p. 55.
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procedures that he considered this would best be achieved.63 Despite this recognition of Evatt’s
commitment to the technicalities of the law, there has been no comprehensive exploration of the
substance and the parameters of the legalism that influenced his thinking on international
relations. Scant attention has been paid to the underlying legal framework that influenced Evatt’s
understanding of British Commonwealth relations. This chapter will explore Evatt’s profound
belief in the legal ties that bound Britain to her dominions and the way in which this shaped
Evatt’s internationalist outlook.
Development of a Legal Framework
Evatt was born in East Maitland, New South Wales in 1894. The fifth of eight sons, he was raised
solely by his Irish-Anglican mother, a publican, from the age of seven. He attended Fort Street
High School and then became a resident of St Andrews College at the University of Sydney on a
full scholarship. At University, Evatt completed bachelor degrees in Arts and Law and a Master
of Arts all with first class honours. He was later awarded honorary doctorates in Laws and
Letters. Evatt was exceptionally ambitious. At the tender age of twenty-four he was admitted to
the Bar. He was involved in New South Wales state politics, primarily as a back-bencher in
Premier Lang’s Labor government from 1925 to 1930. He was appointed as King’s Counsel in
1929 and at age thirty-six became the youngest justice of the High Court in Australia’s history. In
1940, Evatt resigned from the bench to enter federal politics. He served as Attorney General and
Minister for External Affairs under the Curtin and Chifley Labor governments (1941 – 1949).64
63 Christopher Waters, ‘Australia, the Security Council and the Iranian Crisis of 1946: Liberal Internationalism in Practice’, Australian Journal of Political Science Volume 28, Issue 1 (March 1993), pp. 83 – 9. 64 For biographical details on Evatt’s life see; G. C. Bolton, 'Evatt, Herbert Vere (Bert) (1894 - 1965)', Australian Dictionary of Biography, Volume 14 (Carlton: Melbourne University Press, 1996), pp. 108 - 114; Peter Crockett, Evatt: A Life (Melbourne: Oxford University Press, 1993); Graham Fricke, ‘A Decade in the Life of the High Court: 1930 – 1940’, Canberra Law Review Volume 9 (2006), pp. 1 – 14; Flinders University Library, Evatt Collection, Herbert Vere Evatt, 1894 – 1965 hosted by Flinders University, updated Monday 30 June 2008,
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In his university years and his early years at the Bar, Evatt became a devoted and successful constitutional lawyer. It was at university; under the tutelage of academics such as Mungo
MacCallum, Francis Anderson and George Arnold Wood that Evatt developed an interest in
British liberalism and its transferral to Australian soil.65 These academics, well-known for their views on British-Australian relations, fuelled Evatt’s interest in the legal, ethical, cultural and historical ties that bound Britain to her Empire and to the Commonwealth.
Loyalty to Australia and to the Crown
In the inter-war years public debate was concerned by the extent to which Australia should obediently submit to the requests of Britain. In particular, Australia’s involvement in the Boer
War (1899 – 1902) and later in the First World War (1914 – 1918) became the litmus test for categorising individuals as either republicans or loyalists. Wood had been outspokenly against
British and Australian intervention in the Boer War. He objected to the unquestioning obedience with which Australia supported the Empire when its actions were clearly immoral. MacCallum, in contrast, argued that since the war had begun Australians needed to be undivided.66 Although
Evatt was only a child during the Boer War, his interest in the ethics and politics of the debate
was revealed many years later in his choice of biographical subject. In 1940, Evatt wrote a
biography of Labor Parliamentarian, William Holman, who had been a vocal and controversial
opponent of the Boer War, going as far as arguing that he hoped England would be defeated for
they were engaged in the ‘most iniquitous, most immoral war ever waged by any race.’67 Loyalty to Britain was a difficult subject complicated further by the First World War which even Wood supported, proving that ‘loyalist’ and ‘republican’ were not easily defined subject positions.68 It
65 Crockett, Evatt: A Life, p. 49. 66 Gavin Souter, Lion and Kangaroo: The Initiation of Australia (Melbourne: Text Publishing, 2000), pp. 70 – 72. 67 William Holman, New South Wales Parliamentary Debates (NSW PD), 18 October 1899, p. 1466. 68 For both Holman and Wood’s defence of their loyalty to Britain see William Holman, NSW PD, 18 October 1899, p. 1431; Herbert Vere Evatt, Australian Labour Leader: The Story of W.A. Holman and the Labour Movement (Sydney: Angus and Robertson, 1940), p. 126; Souter, Lion and Kangaroo, p. 334.
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was certainly complex for Evatt who was first rejected for service and then lost two brothers and
a close friend in the war.69
Warren Kimball has argued that debates concerning Evatt’s role on the international scene:
are but proxy for a bigger battle; the broader, often presentist arguments among Australians over national-self consciousness versus colonial mentality, over dependency versus an independent foreign policy, over nationalism versus the imposed internationalism of an imperial structure.70
Evatt, like many of his generation, had a complex relationship with the idea of Great Britain.
There is an extensive literature on the origins and character of Australian nationalism. Kate
Darian-Smith, Patricia Grimshaw and Stuart Macintyre have recently documented the historiographical debate in former British dominions over whether there existed an identifiable colonial nationalism, as opposed to an extension of British nationalism in the form of ‘pride of race’ and attachment to Anglo-Saxonism. Australian historian Neville Meaney, for example, has long argued that Britishness was simply a dominant cultural myth in Australia.71 Despite these historiographical discrepancies over employing the label of nationalism, historians have frequently accepted the existence of a dual attachment to the ideas of ‘Britain’ and ‘Australia’, even if only as co-existing, and to a degree, competing, cultural myths. Russell McGregor has recently argued that Britishness provided an ethnic core to Australian nationalism, making it
‘distinctively Australian while simultaneously and fervently British: a composite nationalism that could be, and in the federation era often was, more accurately designated ‘British-Australian’’.72
69 Dalziel, Evatt the Enigma, p. 34; Crockett, Evatt: A Life, p. 45. 70 Kimball, ‘Merely a Facade?’, p. 11. 71 Kate Darian-Smith, Patricia Grimshaw and Stuart Macintyre (eds), Britishness Abroad: Transnational Movements and Imperial Cultures (Carlton: Melbourne University Publishing, 2007), pp. 233 – 236. 72 Russell McGregor, ‘The Necessity of Britishness: Ethno-Cultural Roots of Australian Nationalism’, Nations and Nationalism Volume 12, Issue 3(2006), p. 494; See also Souter, Lion and Kangaroo, pp. 406 – 411; Jeff Archer, ‘But Is It Australian Nationalism?’, Australian Journal of Politics and History Volume 36, Issue 1 (1990), p. 86.
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In the early period of the twentieth century, federation provided a middle ground between
republicanism and monarchism that ameliorated the frustrations of many with the hegemony of
the Crown. The emergence of the Australian nation as an important member of the British
Commonwealth presented an opportunity for Australia to evolve out of a position of dependency
into one of increasing consultation and partnership, while remaining loyal to the motherland.73
This was the historical context in which Evatt developed his views on British-Dominion relations.
In his award-winning 1918 university essay Liberalism in Australia, Evatt made clear the way in
which Australian liberalism and democracy were necessarily different to their British
counterparts, having evolved out of a distinct history, and not hindered by ‘any closed system of
political maxims’.74 His argument emulated the views of earlier ‘nationalists’ who positioned
Australia outside of historically and politically loaded British traditions encumbered by discrepancies in class and by corruption.75 Evatt viewed the development of a unique liberal tradition in Australia as the source of democratic principle and practice.76 Democracy, to Evatt was a fundamental element of the system of values that defined Australia. It would remain central to his internationalist vision of the postwar world, being the reason for which Australia would fight in the Second World War. In his later promotion of the UN he would argue that it was
‘imbued with democratic principles,’77 and that it advanced ‘democratic ideals’ by ‘democratic
procedure’.78
Tension between commitment to the Crown and the nation was complicated for Evatt by his involvement with the labour movement. In part, the labour movement was influenced by an
73 Neville Kirk, ‘The Conditions of Royal Rule: Australian and British Socialist and Labour Attitudes to the Monarchy, 1901-11’, Social History Volume 30, Issue 1 (February 2005), pp. 72, 75-76; Mark McKenna, The Captive Republic: A History of Republicanism in Australia 1788-1996 (Cambridge & Melbourne: Cambridge University Press, 1996) pp. 10, 205 – 206. 74 Herbert Vere Evatt, Liberalism in Australia: An Historical Sketch of Australian Politics down to the Year 1915 (Sydney: The Law Book Company, 1918), p. 77. 75 Stephen Alomes, ‘Australian Nationalism in the Eras of Imperialism and ‘Internationalism’’, Australian Journal of Politics and History Volume 34, Issue 3 (1988), p. 321. 76 Evatt, Liberalism in Australia, p. 6. 77 Herbert Vere Evatt, ‘Risks of a Big Power Peace’, Foreign Affairs Volume 24, No. 2 (January 1946), p. 208. 78 Evatt, ‘Risks of Big Power Peace’, p. 201.
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emerging group of industrial activists who were working class, Irish Catholic and increasingly
critical of the hegemony of the British political state in managing Australia’s affairs.79 The labour
and socialist movements were also infiltrated by a strain of anti-monarchism, the rhetoric of
which, criticised the corruption, feudalism and ‘outward trappings of power’ associated with the
throne.80 It was closely associated with a broader anti-imperialist agenda of separation from
Britain.81 Clearly the relationship between Australia and Britain was a complex one, but what is missing from these analyses of Australian identification with the Crown is an exploration of the very real legal links that positioned Australia within the web of Commonwealth relations.
The Constitution and the Crown
Evatt learnt early, again under the tutelage of his professors, that underlying these debates about the relationship between Britain and Australia was an important legal and constitutional framework.82 Both Wood and MacCallum were leading members of the Sydney branch of Round
Table groups, established throughout the Empire following the Boer War. The Round Table groups advocated the concept of imperial federation, which involved the creation of an imperial constitution. The aim of such a constitution was to delegate greater influence to the dominions and encourage frequent consultation over the Empire’s affairs.83 Evatt was clearly influenced by these debates and in 1917 he contributed an article to the Australian Worker assessing the various merits and disadvantages of imperial federation.84 Evatt used this article, written in response to
one published earlier by Wood, to develop his understanding of the legal association between the
79 Gavin Souter, Lion and Kangaroo, pp. 309 - 310. 80 Antony Taylor and Luke Trainor, ‘Monarchism and Anti-Monarchism: Anglo-Australian Comparisons c.1870 – 1901’, Social History Volume 24, Issue 2 (May 1999), p. 160. 81 Taylor and Trainor, ‘Monarchism and Anti-Monarchism’, p. 161; Kirk, ‘The Conditions of Royal Rule’, Social History, p. 75; John Warhurst, 'Nationalism and Republicanism in Australia: The Evolution of Institutions, Citizenship and Symbols', Australian Journal of Political Science Volume 28, Issue 4 (1993), p. 101. 82 John Peden was another professor who had a profound influence on Evatt’s development as a constitutional lawyer, but in a more technical, rather than ideological or political manner. See Herbert Vere Evatt, ‘Professor Peden as a Teacher of Constitutional Law’, in T. R. Bavin (ed.), The Jubilee Book of the Law School of the University of Sydney 1890 – 1940 (Sydney: Halstead Press, 1940), pp. 34 – 37. 83 Edwards, Prime Ministers and Diplomats, pp. 93 – 94, Crockett, Evatt: A Life, p. 49. 84 Crockett, Evatt; A Life, p. 50.
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Crown and the dominions. He opposed a formal imperial federation, believing that Australia
should retain its own foreign policy despite its association with a single Westminster based power
in the eyes of foreign states.85 Evatt argued that a flexible approach should be applied to the development of constitutional relationships. Essentially he did not think that a formal document was required for Australian nationalism to evolve. He saw the independence of the dominions developing organically and fluidly out of pre-existing legal relationships.
Evatt’s views on the British Commonwealth evolved in highly legalistic terms. Throughout his career he developed a narrative of Commonwealth development based upon his expansive knowledge of constitutional law. This justified, in his mind, the increasing independence of the dominions, not as completely separate entities from Britain, but within a fluid Commonwealth framework within which all states were equal.86 For Evatt, Australian authority to act independently in both domestic and external affairs was absolutely underscored by the legal source of that authority, the Royal Prerogative. The Prerogative of the Crown is the source of governmental power for a dominion. It is written into the Australian Constitution in the body of the executive (being able to exercise the Prerogative in terms of entering into treaties or declaring war without the consent of the Parliament) and in the Governor General who can appoint and dismiss governments. Evatt was committed to the idea that the ‘unity and indivisibility of the
Crown as a legal doctrine is the instrument which enables certain at least of the King’s
Prerogatives to be exercised with respect to the self-governing dominions of the Empire’.87 He
defined the Prerogative of the King as an exclusive privilege or right of the Crown that is, in the
strictest sense, a part of the common law’.88 Evatt argued that the unity of the Crown allows for the very existence of those Prerogatives to operate. He contended that the dominions represented
85 Herbert Vere Evatt, (Pseud.: ‘Not at All’), ‘Australian Nationalism and Imperial Federation’, Australian Worker (Sydney), Volume 26, Issue 22 (31 May 1917), p. 19. 86 Bongiorno, ‘Commonwealthmen and Republicans’, pp. 38 – 39. 87 Herbert Vere Evatt, The Royal Prerogative (Sydney: The Law Book Company, 1987, first published in 1924), pp. 55 – 56. 88 Evatt, The Royal Prerogative, p. 12.
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‘varying manifestations throughout the Empire of the one Crown’ (emphasis mine)89 and that
whatever authority is entitled to exercise the Royal Prerogatives, be it ‘Imperial or Dominion or
Province or Commonwealth or State – it must be accepted as one far-reaching effect of the
ubiquity of the Crown that its Prerogatives are in existence.’90 Thus the legal principles at the very core of dominion power, by their existence, strengthened the unity of the British Crown.
Historian, J. D. B. Miller, writing in the sixties, recognised that the Monarch had been, ‘at a constitutional level, the strongest and most inescapable tie between the old Dominions and
Britain'.91
As Minister for External Affairs during the Second World War, Evatt remained committed to the legal relationship that existed (and exists) between the authority of the Federal Government and its constitutional source, the British Crown. In 1948 he argued that what bound Commonwealth nations was not the supremacy of the British state, but was rather ‘a common allegiance to the
Crown’ and their membership of the British Commonwealth.92 In an article written for The Times in 1942, Evatt set out what he considered to be the progressive narrative of dominion self- government. The doctrine of equal partnership promoted at the Paris Peace Conference of 1919, in association with each dominion’s autonomous membership of the League of Nations and acceptance of the Treaty of Versailles, celebrated the ‘living fact of integral unity of the British
Empire under the Crown’.93 He recognised that dominion independence remained subject to the
decisions of the League’s British delegates who held plenary powers to act for the whole of the
Empire, and to the power of the King who could ratify a treaty that would become effective
89 Evatt, The Royal Prerogative, pp. 62 – 63. 90 Evatt, The Royal Prerogative, p. 65. 91 Miller, Britain and the Old Dominions, p. 32. 92 Herbert Vere Evatt, ‘Towards a Greater British Commonwealth’, Broadcast for the B.B.C, 6 September 1948, EC, Folder: Evatt Publications – Articles on the British Commonwealth of Nations. 93 Herbert Vere Evatt, ‘The Commonwealth at War: New Stage in Imperial Relations’, The Times Issue 49249, May 30 1942, p. 5.
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Empire wide.94 This narrative of progression, within which the Empire evolved towards an association of self-governing and equal dominions, allowed Evatt to both embrace the tradition of imperial kinship ‘which transcends all material links and baffles definition,’95 while still advocating a more independent role for Australia on the world stage.
Internationalism
Evatt’s dual loyalties, to the nation and to the Commonwealth did not operate so smoothly within the ideologies of internationalism to which he subscribed. In the immediate postwar years, dialogue amongst Commonwealth nations revolved around the Constitution of the newly independent India and how its transition towards a republic would affect its status within and its relationship to the Commonwealth. The British Government favoured a policy of retaining India within the Commonwealth, lest it risk weakening Commonwealth influence throughout its former colonies. Evatt was committed to an internationalist vision that rejected the racial objections posed by some British statesmen to India’s independence.96 India figured prominently in
Australian policy making in the postwar period, with its focus upon regional and multilateral co- operation in line with the new initiatives of the United Nations.97 It was essential that India and
Pakistan remained within the Commonwealth ‘if for no other reason lest another power occupy or extend influence over them’.98 Maintaining friendly relations with India was vital to Australia’s
political and commercial interests in the Asia-Pacific region. Australia hoped to strengthen and
promote an India-Australia sphere of influence in the Indian Ocean zone.99 The importance of
9494 Herbert Vere Evatt, Untitled Document, EC, Folder: Evatt Publications – British Commonwealth of Nations. 95 Herbert Vere Evatt, ‘The Commonwealth at War’, p. 5. 96 ‘Minutes of First Meeting of Official Committee on Commonwealth Relations for 1948’, Cabinet Papers, Public Records Office 134/118, and see also Brook, Draft of Report on ‘The Commonwealth Relationship’, 24 March 1948, Cabinet Papers Public Records Office 134/118, both quoted in R. J. Moore, Making the New Commonwealth (Oxford, Clarendon Press, 1987), pp. 107 – 108. 97 Meg Gurry, India: Australia's Neglected Neighbour? 1947-1996 (Griffith: Centre for the Study of Australia- Asia Relations, 1996), pp. 1 – 14; Bongiorno, ‘British to the Bootstraps?’, p. 18. 98 Cablegram, Moodie to Deschamps, Document 138, Canberra, 11 February 1948, AA:A1838/278, 169/10/1, i, DAFP, Volume 14, 1948-49, The Commonwealth, Asia and the Pacific DFAT. 99 Cablegram, Burton to Gollan, Document 139, Canberra, 12 October 1948, AA: A1838/2, 169/10/6, i, DAFP, Volume 14, 1948-49, The Commonwealth, Asia and the Pacific DFAT.
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‘Indian-Australian collaboration’ was expressly recognised by Evatt.100 As Meg Gurry has noted,
in 1949, Evatt outlined plans for a regional group which would include India, Ceylon, Pakistan,
New Zealand and Australia.101 Clearly, India figured prominently in Evatt’s vision of Australia as an Asia-Pacific security power in the postwar world. He considered Indian Prime Minister,
Jawaharlal Nehru, a personal friend and believed that the future of Asia would depend upon the development of ‘the great Indian sub-continent’.102
Despite this, Evatt opposed the breaking of all legal ties between India and Britain. He pushed for
recognition by India of the King in their Constitution.103 Britain was eager to accommodate
India’s demands for republican status. British Prime Minister, Clement Atlee realised that the historical and political connotations of the term ‘dominion’ were unsuitable and certainly undesired by the populace of India, Ceylon, Pakistan and Burma. Mounting Asian nationalism demanded a new formula from the Commonwealth that would recognise the equality of its members and would place the remnants of empire on the backburner as international relations took their natural course in a period of rapid decolonisation. Atlee realised that what was required was a negotiated political decision, rather than ‘a lengthy examination by constitutional lawyers’.104 He advocated an informal discussion amongst the dominions with the hope of coming to some arrangement that would allow India to remain in the Commonwealth as an independent state. The sticking point amongst dominion representatives concerned an issue that
Evatt was well versed in; the King’s Prerogatives. Although Evatt was dedicated to Australian involvement in the Asian region and supported efforts to keep India within the Commonwealth,
100 Cablegram, Burton to Gollan, Document 141, Canberra, 7 January 1949, AA:A1838/278, 381/3/2, DAFP, Volume 14, 1948-49, The Commonwealth, Asia and the Pacific DFAT. 101 EC, Folder: Speeches and Statements – Foreign Policy – 1940s in Gurry, India: Australia’s Neglected Neighbour?, p. 2. 102 Dalziel, Evatt the Enigma, p. 67. 103 Cablegram, Evatt to Beasley, Document 71, New York, 23 April 1949, AA: 1838/283, TS899/6/1, i DAFP, Volume 14, 1948-49, The Commonwealth, Asia and the Pacific DFAT. 104 Frank Heinlein and Robert Holland, British Government Policy and Decolonisation, 1945-1963: Scrutinising the Official Mind (London: Routledge, 2002), p. 67.
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he was determined that any such arrangement should not involve a termination of India’s legal
link to the King.105
Historian Frank Bongiorno has recently addressed the question of Evatt’s involvement in the
debates over Commonwealth membership.106 It is an issue to which scant attention has, in the
past, been paid.107 Bongiorno has argued that Evatt’s constitutional defence of the Monarchy,
which he had developed in regards to the status of the old-dominions, was inapplicable within the
context of Asian nationalism.108 Despite Evatt’s advocacy of regional development, he was unable to let go of his somewhat rigid understanding of the King’s Prerogatives. The rigidity of
Evatt’s argument may seem out of step with his belief in the organic, fluid nature of constitutional law and Commonwealth relations, but the fluidity of those concepts was never intended to be part of a discourse on legal separation from Britain. Evatt believed that the King’s Prerogative was a legal principle that should always be applied flexibly.109 He always saw the growing
independence of the dominions occurring within the framework of the Commonwealth. For
example, when a Judge of the High Court, Evatt delivered a groundbreaking constitutional
decision in the matter of R v Burgess; Ex parte Henry110 in which he insisted that there was no
general limitation on the types of treaties that the Federal Government could enter into under the
external affairs power, even if the subject of that treaty was not a subject to which general
legislative power had been delegated to them. In formulating this argument he was drawing on
the rights and powers delegated to the Federal Government, through the Constitution as an
105 Cablegram, Evatt to Beasley, Document 71, New York, 23 April 1949, AA: 1838/283, TS899/6/1, i DAFP, Volume 14, 1948-49, The Commonwealth, Asia and the Pacific DFAT. 106 Bongiorno, ‘Commonwealthmen and Republicans’, pp. 33 – 50; Bongiorno, ‘British to the Bootstraps?’, pp. 18 – 39; Bongiorno, ‘H. V. Evatt, Australia and Ireland's departure from the Commonwealth’, pp. 537 – 555. 107 Exceptions are Moore, Making the New Commonwealth; and on Ireland’s departure from the Commonwealth see; John O’Brien, ‘Irelands Departure from the British Commonwealth’, The Round Table Issue 306, (April 1988), pp. 179 – 194 and John O’Brien, ‘Australia and the Repeal of the External Relations Act, 1948’, in Colm Kiernan (ed.), Australia and Ireland, 1788-1988: Bicentenary Essays (Dublin: Gill and Macmillan, 1986), pp. 252 – 266. 108 Bongiorno, ‘Commonwealthmen and Republicans’, p. 33. 109 Evatt, The Royal Prerogative, p. 141. 110 R. v. Burgess; Ex parte Henry [1936] HCA 52.
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extension of the King’s Prerogatives. Essentially the Government would be exercising the King’s
powers on his behalf. Bongiorno has argued that for Evatt, ‘the prerogative provided kingship
with its substance at the dominion level, and in the larger setting of the British Commonwealth’.
The monarchy was not merely ornamental, but:
legitimised dominion autonomy through the common law. The Monarchy, for Evatt, was not a symbol like a flag; it was the ultimate source of national power, and the most significant link between members of the British Commonwealth.111
Thus, while Evatt could envisage a Royal Prerogative that would bend to meet the needs of the
Commonwealth Government when extending its constitutional power to control external affairs,112 he could not envisage a Commonwealth that could be bound by any contractual
principle other than the Prerogatives and the unity of the Crown.
Evatt wanted India to retain a link to the Crown, at the very least, through its external affairs. At
Commonwealth Meetings in Paris in 1948, he lobbied the Secretary-General of India’s Ministry
of External Affairs, Sir Girja Bajpai, to maintain a link with the Crown that would involve the
King continuing to ‘exercise Prerogative functions in relation to India's external affairs’.113 What
this ‘link’ would mean was essentially the same principle Evatt espoused in Burgess. The source
of India’s legal personality in the international milieu would be the British Crown. Indian
delegates would be able to operate completely independently of the Crown, but in a legal sense,
their authority to do so would stem from the delegation of monarchical power to the Indian
Government. When Evatt was made aware of the ‘Ten Points’ drawn up by Nehru, which set out
the conditions upon which India would remain in the Commonwealth,114 he was ‘amazed’ by the
111 Bongiorno, ‘Commonwealthmen and Republicans’, p. 44. 112 Evatt argued that ‘the Prerogatives of the King develop and an excellent illustration of this is afforded by the growth of the external affairs powers of the self-governing dominion’; Evatt, The Royal Prerogative, p. 141. 113 Cablegram, Evatt to Beasley, Document 71, New York, 23 April 1949, AA: 1838/283, TS899/6/1, i, DAFP, Volume 14, 1948-49, The Commonwealth, Asia and the Pacific DFAT. 114 Jawaharlal Nehru, ‘Pandit Nehru’s Ten Points’, EC, Folder: – External Affairs – India.
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absence of any Prerogatives and by the watering down of the Royal link ‘to a stage that it was
hardly discernible’. Australia’s High Commission in London, J. A. Beasley, noted that during
negotiations Evatt continued to ‘stoutly’ maintain the attitude that a direct link with the King
must be preserved.115
By the beginning of 1949, the British Government had given up trying to appease dominion
concerns about the Royal Prerogative. Recognising that India would not accept a constitutional
link to the King, discussion turned to ‘whether a sovereign democratic republic owing no
allegiance to the Crown could remain within the Commonwealth.’116 Bongiorno has documented the way in which Evatt was effectively sidelined in the negotiations towards the end of 1948, being replaced by a far more pragmatic Chifley.117 His public statements on the importance of the
Crown and the old ties of kinship to the Commonwealth had made him somewhat of a liability.118
Chifley was more willing to accept the futility of the British position. He conceded that although
‘there would be very great difficulties in retaining India within the Commonwealth should it become a republic’, the most important concern remained the maintenance of friendly relations with India, which Chifley hoped would act as a bulwark against communism in Asia.119 Evatt
viewed the Royal Prerogative as far more than a legal fiction. He considered allegiance to the
Crown to be an enduring reality. In the postwar period however, when legal certainties were
overrun in popular discourse by the ideals of equality, anti-colonialism and human rights, Evatt’s
adhesion to a legal structure created in the nineteenth century meant that his policies involved
more nostalgia than political expediency.
115 Cablegram, Beasley to Chifley, Document 65, Paris, 18 November 1948, AA: A1838, 899/1/5, DAFP, Volume 14, 1948-49, The Commonwealth, Asia and the Pacific DFAT. 116 Cable 663, Commonwealth Relations Office to UK Hugh Commissioner in India, 25 February 1949, Dominion Office, 35/2248, PRO quoted in Bongiorno, ‘Commonwealthmen and Republicans’, p. 45. 117 Bongiorno, ‘British to the Bootstraps’, p. 27. 118 Bongiorno, ‘British to the Bootstraps’, pp. 28 – 29. 119 J. B. Chifley to Canadian Prime Minister, Mr. St. Laurent, in Leslie Finlay Crisp, Ben Chifley: A Biography (London: Longmans, 1960), pp. 284 – 285.
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Chapter II
White Australia and the Formation of the United Nations
Evatt’s reputation as an internationalist has arisen predominately out of a common view that he acted as one of the main protagonists at the San Francisco Conference. He is lauded as a
‘champion’ and the ‘most formidable and successful representative’ of the smaller powers.120
Gareth Evans has described Evatt’s contribution to the conference as ‘the stuff of which legends are made’ and has suggested that it is, ‘above all, the Evatt of San Francisco who deserves to be remembered’.121 His contemporaries similarly regarded Evatt as a powerful force at the
Conference. Chairman of the US delegation and Secretary of State, Edward Stettinius, announced that ‘no one had contributed more to the conference than Mr. Evatt’.122 Belgian delegate, Henri
Rolin, paid ‘personal tribute to that veteran of all committees and all commissions... Dr. Evatt’.123
Even the New York Times labelled him as the ‘most brilliant and effective voice of the small powers, a leading spokesman for the world’s conscience’.124
120 Harper and Sissons, Australia and the United Nations, p. 48; David Lee, ‘The Curtin and Chifley Governments, Liberal Internationalism and World Organisation’, in Lee and Waters (eds.), Evatt to Evans, p. 50; Timothy L. H. McCormack, ‘H.V. Evatt at San Francisco: A Lasting Contribution to International Law’, Australian Year Book of International Law Volume 13, (1992), p. 89; Renouf, Let Justice Be Done, p. 217. 121 Gareth Evans, ‘Evans on Evatt: Herbert Vere Evatt: Australia’s First Internationalist’, The 1995 Daniel Mannix Memorial Lecture, Eureka Street Volume 5, Issue 8 (October 1995), pp. 29, 33. 122 Documents of the United Nations Conference on International Organization, San Francisco: Volume 5 London & New York: United Nations Information Organizations published in cooperation with The Library of Congress, 1945), p. 551. 123 Henri Rolin, ‘Verbatim Minutes of Fifth Meeting of Commission I (General Provisions)’, June 23 1945, Document 1187, Documents of the United Nations Volume 6, p. 212. 124 ‘Evatt Acclaimed for Parley Work’, New York Times, 27 June 1945, p. 11.
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In spite of the praise, the positions that Evatt took on various matters at the Conference were not consistently in pursuit of internationalist ideals. At San Francisco Evatt pressed for an amendment to the Dumbarton Oaks draft Charter that would effectively curtail the ability of the
UN to propose recommendations when the domestic policies of states were threatening international peace and security. The basis for this amendment was a concern to safeguard
Australia’s racially discriminatory immigration legislation. Scholars of Evatt have recognised the degree to which this provision was inconsistent with his professed internationalism.125 Yet the research on this inconsistency has treated the tension between Evatt’s idealism, rooted in the discourse of human rights, and his protection of a fundamentally racist law as representing either his naturally Australian propensity towards racism, or a blip in an otherwise unblemished internationalist record. This chapter, in contrast, will map out the extent to which Evatt’s amendment went against the grain of international ambition after the Second World War to formally realise universal racial equality. It will make evident how Evatt essentially compartmentalised his internationalist vision for a postwar world from the question of racial equality and it will examine the way in which his views on race and immigration were derived from his involvement in the labour movement, and his adhesion to a constitutional and legal framework.
Dumbarton Oaks, 21 August – October 7, 1944
In late 1944, the four major Allied powers, China, the United States, Great Britain and the Soviet
Union met at Dumbarton Oaks in Washington to draft a Charter for a new world security organisation. On the agenda was the question of human rights and the degree to which such rights would be acknowledged and upheld in the Charter. The Chinese delegates immediately made clear their intention to secure racial equality as an underlying principle of the new UN. In taking
125 Hasluck, Diplomatic Witness, p. 214; Hudson, Australia and the New World Order, p. 122; Renouf, Let Justice be Done, p. 101, Oliver Jones, Identity, Interest, Ideology: The Foreign Policy Development of Dr. H. V. Evatt Unpublished Honours Thesis, University of Sydney, 2007, pp. 65 – 67; P. G. Edwards, ‘Historical Reconsiderations II: On Assessing H. V. Evatt’, Historical Studies Volume 21, Issue 83 (October 1984), p. 260.
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upon themselves the mantle of racial equality, the Chinese delegates were continuing a struggle
for its universal recognition that had been initiated by the Japanese at Versailles in 1919.126 The
Chinese proposed that the new UN should uphold the ‘principle of equality of all states and all
races’.127 Their proposal was not supported by any of the other powers.128 Despite the prevalence
of a discourse on human rights within American public rhetoric during the war129 the American delegation opposed specific reference to race or discrimination on the grounds that it might invite international intervention in their domestic segregation laws.130 An American commitment to international recognition of human rights was an influential ideal in the State Department during the war. By the time the American contingent arrived at Dumbarton Oaks in 1944 however, their approach to the question of human rights had been tempered on the recommendation of legal experts. American strategy was to support the ideal in principle, but not to consent to the establishment of any means by which rights could actually be enforced.131 In contrast to the
Chinese proposal the Americans suggested a broad principle for the preservation of ‘human rights
and fundamental freedoms’.132 The British and the Soviets opposed both American and Chinese
proposals essentially on the grounds that a provision on human rights would undermine the
principle of national sovereignty and allow international interference in the domestic affairs of
states.
126 Marilyn Lake and Henry Reynolds, Drawing the Global Colour Line: White Men’s Countries and the Question of Racial Equality (Melbourne: Melbourne University Press, 2008), pp. 284 – 309, 342. 127 'Tentative Chinese Proposals for a General International Organization’, 23 August 1944, United States State Department, Foreign Relations of the United States (FRUS) Volume 1, (General Diplomatic Papers) 1944 (Washington: United States Government Printing Office, 1966), p. 718. 128 Walter Francis White, A Rising Wind (Westport: Negro Universities Press, 1971, first published 1945), p. 148. 129 Jan Herman Burgers, ‘The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century’, Human Rights Quarterly Volume 14, No. 4 (November 1992), p. 471. 130 M. Glen Johnson, ‘The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights’, Human Rights Quarterly Volume 9, No. 1 (February 1987), p. 24. 131 Paul Gordon Lauren, ‘First Principles of Racial Equality: History and the Politics and Diplomacy of Human Rights Provisions in the United Nations Charter’, Human Rights Quarterly Volume 5, No. 1 (February 1983), pp. 8 – 9. 132 Burgers, ‘The Road to San Francisco’, p. 474; Lauren, ‘First Principles’, p. 10.
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The Soviet representatives were aware that Stalinist policies of ‘coercive collectivisation,
political purges, internal exile and forced labour camps’ would not be easily reconciled with the
principle of human rights.133 Their diplomatic explanation for opposing the provision was that the philosophy of human rights was ‘not germane to the main tasks of an international security organization’.134 The British delegation was concerned that formalising the preservation of human rights would undermine sovereignty and imperial power.135 Although the British formally
objected to the proposals made at Dumbarton Oaks, diplomat Sir Alexander Cadogan, implied
that Britain would support human rights in principle if they could safeguard their domestic affairs
in practice. In September 1944, during the Dumbarton Oaks talks, Cadogan advised the foreign
office that it ‘would be against our interest and tradition as a liberal power to oppose the
expression of a principle, denial of which figures so predominantly in Nazi philosophy and is
repugnant to the mass of British and foreign opinion’. Cadogan was also acutely aware of the
ammunition that a British denial of human rights would give to the American critics of Empire,
whose anti-colonial opinions had become much louder during the war. Like the Americans,
Cadogan advocated recognition of the principle without conceding that matters of domestic
jurisdiction would become subject to UN scrutiny.136
San Francisco, April 25 – June 26, 1945
In early 1945, delegates from fifty allied nations met in San Francisco to consider the Dumbarton
Oaks proposals and to finalise the Charter. The aim of the Charter was to define the new UN; its
principles, its structure, the limits upon its capabilities, and its potential. Discussion was heavily
133 Susan Waltz, ‘Reclaiming and Rebuilding the History of the Universal Declaration of Human Rights’, Third World Quarterly Volume 23, No. 3 (2002), pp. 440. 134 ‘Memorandum by the Under Secretary of State (Stettinius) to the Secretary of State (Hull), ‘Progress Report on Dumbarton Oaks Conversations- Eighteenth Day’, 9 September 1944, United States State Department, FRUS Volume 1, (General Diplomatic Papers) 1944, p. 789. 135‘Memorandum by the Under Secretary of State (Stettinius) to the Secretary of State (Hull)’ FRUS Volume 1, (General Diplomatic Papers) 1944, pp. 789, 797, 825; Lauren, ‘First Principles’, p. 11; Johnson, ‘The Contributions of Eleanor and Franklin Roosevelt’, p. 24. 136 ‘Telegram No. 5318 from Halifax (Washington) to Foreign Office with addition from Cadogan’, 29 September 1944, London, Public Record Office, Foreign Office Correspondence 371/40716; quoted in Lauren, ‘First Principles’, p. 11.
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influenced by the philosophical and legal movements that emerged from previous conflicts and
their resultant peace efforts, such as the development of human rights and Westphalian notions of
sovereignty. The precursor to the UN, the League of Nations, provided a structural precedent
while the two world wars that had marked the first half of the twentieth century provided the
motivation. Australia’s delegation to the conference was led by Deputy Prime Minister Francis
Forde. Despite Forde’s seniority, it was Evatt who effectively led the delegation, exhaustively
campaigning for Australia’s amendments to the Dumbarton Oaks proposals.137
The atmosphere at Dumbarton Oaks had not been conducive to the Chinese campaign for racial
equality. The final draft, which was forwarded to all states and non-state actors who would be
attending the San Francisco Conference, included only one reference to human rights. Under the
chapter dealing with arrangements for international economic and social cooperation was an
undertaking that the organisation would ‘promote respect for human rights and fundamental
freedoms’. There was no reference to race, ethnicity or discrimination. The only suggestion of
equality was ‘the sovereign equality of all peace-loving states’ upon which the organisation
would be based.138 Despite the attitudes of the major powers the majority of delegates at San
Francisco were determined that the Charter would include recognition of universal human rights.
Jan Burgers has identified the Latin American delegates and the US non-governmental groups as
having had significant influence over the improvement of the human rights clauses in the final
Charter. The US had representatives of forty-two non-governmental organisations (NGOs) acting
as consultants, including religious, women’s and labour groups all of whom had been
campaigning for human rights during the war.139 Although the only African American organisation asked to attend was the National Association for the Advancement of Coloured
137 David Lee, ‘The Curtin and Chifley Governments, Liberal Internationalism and World Organisation’, in Lee and Waters (eds.), Evatt to Evans, p. 50. 138 Chapter IX, Clause 1 and Chapter II, Clause 1 of Cablegram, ‘Dumbarton Oaks Proposals: Proposals for the Establishment of a General International Organisation’, Document 311, Dumbarton Oaks, 7 October 1944, AA:A989, 44/735/1007/1, DAFP, Volume 7, 1944, DFAT. 139 Burgers, ‘The Road to San Francisco’, pp. 475 – 476.
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People (NAACP), Marika Sherwood has made clear that lobbyists and students from Africa, as well as African American residents, were influential in their unrelenting efforts during the conference to lobby both the press and delegates whom they believed would be sympathetic to their cause.140
The Question of Race
Denial of rights and racial prejudice during the war were not only present in Nazi policies. As
Gary Gerstle has argued, the Second World War was in very large part a ‘race war’,141 fought for the defence of racial purity both in the Pacific and the Atlantic.142 The Holocaust had signalled a significant departure from traditional forms of anti-Semitism in Europe, employing scientific discourses to segregate individuals into categories of Jew and non-Jew.143 The racial element of
Nazism had posed less of a threat to the Allies than Hitler’s expansionist policies, for, as Hugh
Tinker has argued, many people in western democracies accepted the Nazis’ philosophy of racial difference.144 Anti-Semitism had indeed developed, and to some extent been normalised, within a broader Euro-American milieu.145 Race was also a significant element in the Pacific war, revolving around the difference in colour between enemies. Creators of propaganda from both
140 Sympathetic delegations were considered to be mainly from Arab and African states and also from Haiti; Marika Sherwood, ‘"There Is No New Deal for the Blackman in San Francisco": African Attempts to Influence the Founding Conference of the United Nations, April-July, 1945’, The International Journal of African Historical Studies Volume 29, No. 1 (1996), pp. 76, 83. 141 Gary Gerstle, American Crucible: Race and Nation in the Twentieth Century (Princeton & Oxford: Princeton University Press, 2001), pp. 201 – 220. 142 For analysis on the international dimension of the racial component of the war see Paul Gordon Lauren, Power and Prejudice: The Politics and Diplomacy of Racial Discrimination Second Edition, (Boulder: Westview Press, 1996), p. 138; John W. Dower, War Without Mercy: Race and Power in the Pacific War (New York: Pantheon Books, 1986), p. 7; Lake and Reynolds, Drawing the Global Colour Line, pp. 339 – 340; Sean Brawley, The White Peril: Foreign Relations and Asian Immigration to Australasia and North America 1919- 1978 (Sydney: UNSW Press, 1995), pp. 202 - 204. 143 Jay Weinstein and Nico Stehr, ‘The Power of Knowledge: Race Science, Race Policy and the Holocaust’, Social Epistemology Volume 13, No. 1 (1999), p. 4. 144 Hugh Tinker, Race, Conflict and the International Order: From Empire to United Nations (London: MacMillan, 1977), p. 41. 145 Michael Berenbaum, The World Must Know: The History of the Holocaust as told in the United States Holocaust Memorial Museum (Boston: Little Brown, 1993), pp. 10 – 16; Weinstein and Stehr, ‘The Power of Knowledge’, p. 27.
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sides animalised and belittled their opponents.146 Michelle Brattain has argued that the ‘tenacity
of racism’ was revealed by the incarceration of Japanese Americans, segregation in the armed
forces147 and race riots, and was founded upon beliefs in the innate inferiority or superiority of certain races.148
Despite the prevalence of racial inequity, the question of human rights had become increasingly
significant as the war progressed and news of atrocities, committed not only against minorities in
Europe but against prisoners of war in the Pacific, reached the press in allied countries. The
resurgence of rights-based discourses fitted into the professed liberal ideology of the Allies and
discredited the opposing axis systems of fascist governance.149 By the time Allied nations had arrived at San Francisco in April 1945, the enormity of the war’s consequences was being realised. Elazar Barkan has noted that Nazism compelled a collective recognition of the dangers that could result from a misuse of the concept of race and led to a ‘discrediting of racism’ in intellectual discourse.150 John Dower has described this process as constituting a ‘revolution in
racial consciousness’.151
At San Francisco, under pressure from smaller non-western states and NGOs, the major powers
agreed to include in the Charter various references to human rights. The peoples of the UN
determined to ‘reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small.’ They agreed to
146 Lauren, Power and Prejudice, p. 139. 147 For more on segregation in the armed forces, see Walter Francis White’s report on his investigation of segregation in American units stationed in Britain; Walter Francis White, A Rising Wind (Westport: Negro Universities Press, 1971, first published 1945). 148 Michelle Brattain, ‘Race, Racism, and Antiracism: UNESCO and the Politics of Presenting Science to the Postwar Public’, The American Historical Review Volume 112, No. 5 (December 2007), p. 1391. 149 Mark Mazower, ‘The Strange Triumph of Human Rights, 1933 – 1950’, The Historical Journal Volume 47, No. 2 (2004), p. 386. 150 Elazar Barkan, The Retreat of Scientific Racism: Changing Concepts of Race in Britain and the United States between the World Wars (Cambridge: Cambridge University Press, 1992), p. 1, and on UNESCO formally discrediting scientific and biological theories of race, see pp. 341 – 342. 151 Lauren, Power and Prejudice, p. 134 and Dower, War Without Mercy, p. 4.
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‘practice tolerance’ and to promote and encourage ‘respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion’.152 There was however,
a notable absence from the Charter of the means by which these rights could be enforced.153
International law expert Hans Kelsen argued in 1946 that the Charter failed to impose upon UN members an obligation to grant rights and freedoms to their citizens. Nor did the Charter provide
a means by which individuals could appeal to an international body. The jurisdiction of the newly
created International Court of Justice (ICJ) extended only to state actors and provided no recourse
to judicial intercession for individuals.154 The final nail in the coffin for protection of human rights was the insertion of a clause protecting all members from intervention by the UN in matters considered to fall within their domestic jurisdiction. This safeguard, in Article 2 (7), became a
‘basic principle’ of the Charter at the suggestion of the major powers and as such it operated as a restriction upon the entire working of the UN.155 The Article did however, contain a condition
whereby any domestic matter could still come under Security Council scrutiny if it required the
Council to determine or act on a threat to the peace or act of aggression.156
Evatt’s amendment to Article 2 (7)
Evatt did not believe that this provision went far enough in securing the interests of smaller nations against intervention from the UN. In his view, while the permanent members of the
Security Council could safeguard their interests through the use of their veto power, the
152 Preamble and Article 1(3); Charter of the United Nations created 2000 – 2008/updated 2008, Secretary of the Publications Board, United Nations, New York,
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remaining 45 member states were left vulnerable.157 Evatt sought an amendment to Article 2 (7)
to ensure that the only permissible intervention by the UN in matters of domestic jurisdiction
could be an application of the enforcement measures granted to the Security Council under
chapter VII of the Charter.158 This amendment essentially proposed to remove from the Security
Council their power under Articles 39 and 40 to make recommendations or take provisional measures when a threat to the peace, breach of the peace, or act of aggression arose within the domestic jurisdiction of a state.159 Under Evatt’s amendment the Security Council would only be able to intervene if the domestic situation required the drastic military enforcement measures authorised in Article 42.
Evatt was concerned that without this qualification the Security Council could deal not only with acts of aggression but also with their causes, for example a discriminatory immigration policy.160
He foresaw the use or threat of force becoming an attractive option for states seeking to extort
political concessions by bringing a matter within the ambit of UN scrutiny.161 The relationship between this amendment and White Australia was conspicuous. Evatt and Forde cabled Chifley on May 18, arguing that without this ‘essential’ provision:
it would be possible for an Asiatic Power to object to our Migration Policy and if it could be shown that a threat to peace had arisen the Security Council could proceed to recommend a settlement involving change in our Migration Policy as a condition necessary to remove the threat. 162
157 ‘Amendment by the Australian Delegation to Proposed Paragraph 8 of Chapter II (Principles): Memorandum by DR. H. V. Evatt on Behalf of the Australian Delegation’, 14 June 1945, Document 969, Documents of the United Nations Volume 6, pp. 436 – 440. 158 Herbert Vere Evatt, ‘The United Nations: Its Formation at San Francisco’, Oliver Wendell Holmes Lecture delivered at Harvard University, 1947, p. 10, EC, Folder: Australian News and Information Bureau (B); See also ‘Amendment by the Australian Delegation’ Document 969, Documents of the United Nations Volume 6, p. 438. 159 Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (London: The London Institute of World Affairs, Stevens & Sons, 1951), p. 787; Justice Elizabeth Evatt, ‘H. V. Evatt’s Role in Drafting the United Nations Charter’, Teaching History (March 2006), p. 6. 160 Renouf, Let Justice be Done, p. 223. 161 Cablegram, Evatt to External Affairs, Document 104, San Francisco, 6 June 1945, AA:A1066, H45/771/1, DAFP, Volume 5, 1945, DFAT; See also Goodrich et al. Charter of the United Nations, p. 63. 162 Cablegram, Forde and Evatt to Chifley, Document 91, San Francisco, 18 May 1945, AA: A1066, H45/771/1, DAFP, Volume 5, 1945, DFAT.
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They regarded the matter as one of ‘fundamental importance’ upon which they believed there
could be no compromise.163 Evatt was the chief protagonist impelling acceptance of Australia’s
position. As Paul Hasluck has made clear, there was no real conflict on policy at the Conference
between Evatt and Forde ‘because only Evatt made the decisions’.164
Evatt was successful in his campaign to expand the prohibition on intervention in the domestic affairs of states. However, that ‘success’ arguably negated the value of his other amendments, restricting, as it did, the whole working of the organisation. Evatt had negotiated the expansion of the General Assembly’s powers of discussion165 despite persistent opposition from the Soviet
Union.166 He saw the strengthening of the General Assembly as an important means of restraining any ‘capricious or unjust exercise of the veto power’.167 Evatt viewed his role in strengthening the
Assembly as a great achievement. Drawing on his commitment to democratic principles, Evatt saw the Assembly as the ‘most democratic organ’ of the UN and as a ‘vital world forum with the ability to act as a ‘watchdog’ on all other organs.168 He argued that no state ‘could ignore the will
of the peoples in the world, expressed through the Assembly’.169 Yet, for all Evatt’s self aggrandisement over his role in expanding the General Assembly’s powers of discussion,170 he
was operating the whole time with the belief that Article 2 (7) overrode all other powers granted
to the Assembly.171 As British delegate (and Evatt detractor) Charles Webster noted in his diary,
163 Cablegram, Forde and Evatt to Chifley, Document 91, San Francisco, 18 May 1945, AA: A1066, H45/771/1, DAFP, Volume 5, 1945, DFAT. 164 Hasluck, Diplomatic Witness, p. 191. 165 In negotiations with Soviet Andrei Gromyko and American Edward Stettinius, Evatt secured the current formulation of Article 10 of the Charter which permits the General Assembly to ‘discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12 to make recommendations to the members of the United Nations or to the Security Council or to both on any such questions or matters’. 166 Evan Luard, A History of the United Nations, Volume 1: The Years of Western Domination, 1945 – 1955 (London: The Macmillan Press, 1982), pp. 55 – 56. 167 Herbert Vere Evatt, CPD, House of Representatives, Volume 184, 30 August 1945, p. 5037. 168 Evatt, The United Nations, (Cambridge: Harvard University Press, 1948), pp. 19, 75. 169 Herbert Vere Evatt, ‘The United Nations and the Making of Peace’, International Conciliation Issue 445 (November 1948), pp. 669 - 670. 170 Evatt, The United Nations, pp. 20 – 21. 171 Gilmour, ‘The Meaning of “Intervene”’, pp. 342 - 343.
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Evatt advocated ‘the greatest possible extension of power to the General Assembly while at the
same time fighting perversely to limit it by domestic jurisdiction. This latter is now the only gap
in the Charter, if indeed such a gap really exists...’172
Webster’s observation that the insertion of Article 2 (7) gave rise to a ‘gap’ in the Charter is
interesting, suggesting that in the postwar period, international opinion might have been ready to
embrace an organisation with a more interventionist approach. It was certainly a shared global
desire that the UN would have the legal capacity, the support and the resources to maintain peace
and security in a more effectual manner than the League had been capable of. Historians and
lawyers writing about the formation of the UN during its early years paid considerable attention
to the debates at San Francisco over the wording of Article 2 (7). In so doing, they noted Evatt’s
role in pushing for a more expansive prohibition than even the major powers had originally
intended.173 The racial motive behind the amendment was not concealed at the conference.
Malcolm Booker has noted that in spite of Australian support for human rights, ‘none at the
United Nations was misled as to Australia’s real motives’.174 Evatt stated expressly at San
Francisco that Article 2 (7) was a defensive mechanism in response to pressure brought by Japan before the war upon the Australian Government to change its immigration policy.175 When
campaigning for the extension of General Assembly powers, Evatt had reminded Soviet delegate
Andrei Gromyko that Article 2 (7) would ban the UN from intervening in Soviet immigration.176
Evatt had been advised by the foreign office, in a special memorandum prepared in early June
1945 and entitled ‘World Organization: Racial Equality and Domestic Jurisdiction’, not to
172 P. A. Reynolds, and E. J. Hughes, The Historian as Diplomat: Charles Kingsley Webster and the United Nations, 1939 – 1946 (London: Martin Robertson, 1976), p. 71. 173 L. Preuss, ‘Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction’, Académie de Droit Internationale: Recueil des Cours Volume 74, No. 1 (1949), pp. 591 – 593 ; Gilmour, ‘The Meaning of “Intervene”’, pp. 340 – 342; Goodrich et al. Charter of the United Nations, p 62. 174 Booker, Last Domino, p. 81. 175 ‘Verbatim Minutes of Committee I/1’, June 13 1945, quoted in Preuss, ‘Article 2, Paragraph 7 of the Charter’, p. 592 – 593. 176 ‘Summary Report of the Ninth Meeting of the Executive Committee’, Document 1063, Documents of the United Nations Volume 5, p. 522; ‘Summary Report of the Tenth Meeting of the Executive Committee’, Document 1108, Documents of the United Nations Volume 5, p. 535.
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express his concerns about immigration policy too explicitly at the conference, lest he embarrass
India or provoke ‘awkward debate on the colour question’.177 The protection of White Australia was thus the acknowledged and underlying purpose of Australia’s proposals to further strengthen
Article 2 (7).
Objections to the Australian Amendment
It is not surprising, therefore, that the Chinese delegation opposed the Australian amendment, arguing that any limitation of enforcement measures would be irreconcilable with the primary objective of the UN to maintain peace and security.178 In 1942, during negotiations for the
abolition of extra-territoriality between China and Australia, F. W. Eggleston, Australian Minister
for China, explicitly acknowledged Evatt’s aversion to any clause that may ‘break down
immigration laws and give the Chinese the right of entry.’ To avoid such a scenario Eggleston
devised a reciprocity clause whereby both China and Australia had the right to protect their
domestic immigration laws. Eggleston had advised Evatt to talk of an ‘immigration policy’ rather
than a ‘White Australia’ policy to avoid controversy.179 It is evident from this cable that as early as 1942 the Australian leadership was employing ‘domestic jurisdiction’ as a defence to accusations concerning immigration restriction and were convinced that such a justification would receive ‘world-wide support’.
The French delegation had originally objected to any curtailment of the organisation’s right to intervene, stating explicitly that ‘experience of recent years’ had made intervention desirable to protect ‘certain unfortunate minorities’. The French had previously suggested their own amendment, completely antithetical to the Australian, which suggested that the ban on
177 ‘World Organization: Racial Equality and Domestic Jurisdiction’, 8 June 1945, Public Records Office, Foreign Office (PRO/FO), 371/46324, quoted in Lauren, ‘First Principles’, p. 19. 178 ‘Summary Report of the Sixteenth Meeting of Committee I/1, Discussion of Australian Amendment to Paragraph 8 of Chapter II’, 14 June 1945, Document 976, Documents of the United Nations Volume 6, p. 497. 179 Cablegram, Eggleston to Evatt, Document 80, Chungking, 25 November 1942, AA:A4144, 971 (1941 – 1943), DAFP, Volume 6, 1942, July – 1943, DFAT.
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interference in domestic matters may be overridden by ‘a clear violation of essential liberties and
of human rights’ which in itself ‘constitutes a threat capable of compromising peace’.180 While both France and China were clearly protected by the veto power (and the French ultimately withdrew their amendment), smaller states such as Norway also argued that Article 2(7) was
‘tantamount to imposing on the working of the system of international investigation and conciliation very severe limitations’ which may jeopardise international peace and security.181
The debates over the Australian amendment clearly demonstrate that small states, including the
Latin American and Eastern European states that had campaigned for the inclusion of human rights provisions, were concerned to protect their own domestic affairs from Security Council interference. However, prior to Evatt’s proposal being circulated there had been little concern over the original wording of Article 2(7). In fact, on 17 May, when debating the original major power proposal for Article 2 (7),182 several delegates felt that the major power amendment should
not be accepted, ‘since the council should not be debarred from taking necessary action on the
plea that such action might be interpreted as interference within domestic jurisdiction’.183
Australia then proposed its amendment and on June 5 asked permission from the Committee to
postpone discussion of its amendment until negotiations with other delegates had been
completed.184
180 ‘Summary Report of the Sixteenth Meeting of Committee I/1, Discussion of Australian Amendment to Paragraph 8 of Chapter II’, 14 June 1945, Document 976, Documents of the United Nations Volume 6, p. 498. 181‘Statement by the Norwegian Delegation (Dr. Arnold Raestad) on Paragraph 8, Chapter II’, June 12 1945, Document 929, Documents of the United Nations Volume 6, p. 430; See also Goronwy John Jones, The United Nations and the Domestic Jurisdiction of States: Interpretations and Applications of the Non-Intervention Principle (Cardiff: University of Wales Press, 1979), p. 19. 182 Chapter II, Principles, ‘Amendments proposed by the Governments of the United States, the United Kingdom, the Soviet Union and China’, Documentation for Meetings of Committee I/1, 11 May 1945, Document 215, Documents of the United Nations Volume 6, p. 569. 183 ‘Summary Report of the Eighth Meeting of Committee I/1, Discussion of Chapter II’, 17 May 1945, Document 423, Documents of the United Nations Volume 6, p. 311. 184 ‘Summary Report of the Twelfth Meeting of Committee I/1’, 5 June 1945, Document 810, Documents of the United Nations Volume 6, p. 348.
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Evatt was aware of the value that most sovereign states attached to domestic jurisdiction clauses.
There had been a prohibition similar to Article 2 (7), although less restrictive, in the Covenant of
the League of Nations185 and safeguarding the domestic jurisdiction of states had been common
practice in international treaties and arbitration agreements prior to the First World War. Under
such arrangements contracting parties would agree to withhold from arbitration matters affecting
their ‘vital interests of national honour’.186 In the interwar years states continued to contract out
of their obligations to the League by employing domestic jurisdiction clauses that contained no
provision whereby the applicability of such a clause would be determined by an impartial
body.187 Evatt was well aware of the prohibition’s appeal and relied upon it at San Francisco when attempting to garner support for his amendment. Evatt took advantage of a sense of vulnerability among smaller states over the expansive veto power of Security Council members.
Many of these smaller states, who had supported Evatt’s attempt to limit the scope of the veto, were colonies of, or were politically indebted to, one of the major powers. State sovereignty was therefore not an issue they took lightly. Evatt reminded delegates that Australia was not alone in having potentially offensive domestic policies, maintaining that ‘every country... has its own internal problems, its own vital spheres of domestic policy, in which it cannot without forfeiting its very existence as a state, permit external intervention’.188 The possibility of intervention vocalised by Evatt at the conference led to a majority of members passing his amendment in patent contrast to the rhetoric of human rights that had animated the conference.
185 Article 15, paragraph 8 of the Covenant states ‘If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement’; The Covenant of the League of Nations (Including Amendments adopted to December, 1924) created 1996/updated 08 January 2008, The Avalon Project hosted by Yale Law School, USA,
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Despite the stand taken by members in support of Evatt’s position, he was still acting in
opposition to the internationalist ideals of the postwar period. These ideals were not forfeited by
all attendees at the conference under threat of Article 2 (7). The NGO advisers continued to push
for a rejection of both Article 2 (7) and the dated notions of sovereignty that underlined it, in
favour of human rights. International legal academic Phillip C. Jessup argued in dramatic fashion;
‘we have taught the layman to worship the arch-fiction of the sovereign state and thereby have
built a Maginot line against the invasion of new ideas in the international world, and behind that
rampart the demagogue and the reactionary are enthroned’. James T. Shotwell, Director of
Economics and History at the Carnegie Endowment for International Peace and one of the
consultants to the US delegation, adopted a similar line of reasoning. He argued that the Second
World War had made it clear that a regime of violence and oppression within any nation of the
civilized world was a matter of concern to all the rest. He advised that states, jealous of their
sovereignty, should no longer regard foreign expressions of concern for the welfare of citizens as
constituting interference in their domestic affairs.189
The thinking behind Evatt’s amendment was ideologically in line with American anxieties over safeguarding segregation and with British concerns for imperial power over colonies. It was in essence an extension of the discourse promulgated by Billy Hughes at Versailles in 1919. The result of Evatt’s amendment, if applied literally, would have been to castrate the UN, leaving it unable to fulfil the objectives of his postwar internationalist vision.190 Yet the allied powers had
fought the Second World War under the banners of democracy, freedom and equality191 and the preservation of such liberties was a cause to which Evatt had pledged himself on many
189 Phillip C. Jessup and James T. Shotwell, Commission to Study the Organization of Peace, International Safeguard of Human Rights, Fourth Report, Part III (New York: Commission to Study the Organization of Peace, 1944), pp. 16, 23-24, quoted in Lauren, ‘First Principles’, p. 19. 190 Preuss, ‘Article 2, Paragraph 7 of the Charter’, p. 588. 191 Lake and Reynolds, Drawing the Global Colour Line, p. 339.
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occasions.192 While Evatt was clearly aware that Article 2(7) would safeguard an immigration policy that restricted entry to Australia on the basis of race, his understanding of racial discrimination was not easily categorised by simple reference to race hatred or allegiance to ideals of racial purity. Evatt’s palpable concern over the threat that UN intervention may have posed to White Australia had complex origins. There is little evidence to suggest that he was openly hostile to other races.193 In contrast, Evatt’s defence of the policy developed out of his adherence to two somewhat incongruous philosophies; a legal faith in the constitutional and sovereign rights of the Federal Government to make such laws and a commitment to preserving workers’ rights that was fundamental to the Labor Party and to the international socialist movement.
A Constitutional Framework: The Rights and Powers of Sovereign Australia
Evatt was appointed to the High Court in 1930 at the age of thirty-six and served on the bench for a decade. In his judicial decisions on immigration he demonstrated an ‘intimate knowledge of the exclusion provisions of the Immigration Act’.194 His judgments also revealed that his interest in immigration law was profoundly influenced by his expertise in constitutional law and by his faith in the right of the Commonwealth Government to exercise its Royal Prerogative. Evatt argued that the power to legislate on the subject matter of immigration was clearly delegated to the
Commonwealth Parliament in the Constitution.195 That power ‘authorises legislation directed to
192Herbert Vere Evatt, ‘The Peril Facing Australia: Ministerial Statement in the House of Representatives, 25 February 1942’, in Evatt, Foreign Policy of Australia, pp. 38 – 39; Evatt, The Task of Nations, pp. 235 – 242; Evatt, Postwar Reconstruction, pp. 41 – 51. 193 Crockett notes some rare exceptions when Evatt acts in ways that suggest he is racially prejudiced, Crockett, Evatt: A Life, p. 55. 194 Kel Robertson, Jessie Hohmann and Iain Stewart, ‘Dictating to One of ‘Us’: The Migration of Mrs Freer’, Macquarie Law Journal Volume 5 (2005), p. 259. 195 Under section 51 (xxvii) the parliament has the power to make laws ‘for the peace order and good government of the commonwealth with respect to immigration and emigration; Attorney’s General’s Department and Australian Government Solicitor, The Constitution; as in force on 1 June 2003, (Canberra: Office of Legislative Drafting, Attorney-General’s Department, 2003), p. 32.
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the prevention of the entry of any person who is not... a member of the community of
Australia’.196
In 1934, he delivered judgment in favour of detained Czech communist Egon Kisch when the
Federal Government had attempted to prohibit him from entering the country. Evatt’s biographer
G. C. Bolton described the case as a notable victory for civil liberties197 despite the fact that Evatt had actually upheld the validity of the law under question. Evatt found that the section of the
Immigration Act that allowed the Government to declare someone a ‘prohibited immigrant’ for the purpose of their exclusion or deportation, was perfectly valid because it was a law which in substance fell within the subject of immigration. Evatt ordered Kisch’s release from detention, not on the grounds that the Government had no legal right to declare someone a prohibited immigrant or to subsequently detain them, but because on the facts of the case Evatt found no evidence that Kisch was in fact a prohibited immigrant. Evatt acknowledged the drastic character of the law, but argued that it was ‘no more drastic than the power which enables non-Australians coming to Australia to be made prohibited immigrants if they fail to pass a dictation test’.198
While on the bench Evatt exercised relative freedom in being able to speak his mind on White
Australia. His judicial oratory made evident that he had an extensive knowledge of the political reality of racially discriminatory legislation. In R v Davey Evatt declared that the dictation test used to exclude undesirables of non-European background:
was never intended to be a real education test, or a provision guarding against the entry of illiterates. It was merely a convenient and polite device... for the purpose of enabling the Executive Government of Australia to prevent the immigration of persons deemed unsuitable because of their Asiatic or non-European race.199
196 R v Carter; Ex parte Kisch ("Kisch’s case") [1934] HCA 50. 197 Bolton, 'Evatt, Herbert Vere’, p. 108. 198 R v Davey and Others; Ex parte Freer [1936] HCA 58. 199 R v Davey and Others; Ex parte Freer [1936] HCA 58.
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He suggested that it was both common knowledge and official policy that the test ‘was never
intended to be applied, and would never be applied, to immigrants of an European race’.200 It was
also clear however, that Evatt was willing to uphold any legislation that he believed the
Government had a constitutional right to enact. Furthermore, he never challenged the
Government’s defence of the policy, which he himself had advocated at international forums in
the 1920s, as being a necessary condition to preserve an Australian standard of living.
In the first half of the twentieth-century race thinking was not neatly divided along colour lines.
In 1926, J. H. Curle published his eugenicist polemic To-day and To-morrow: The Testing Period
of the White Race, which reinvigorated an imperial discourse that placed the British at the zenith
of civilisation and located southern and eastern Europeans as the ‘dregs of Europe’. The
whiteness of a person’s skin was not the definitive measure of their inclusion in white
civilisation.201 In 1935, Evatt wrote an article detailing the riots that had erupted in Kalgoorlie the previous year between Australians on the one side and Eastern and Southern European immigrants on the other. Evatt attributed the violence to an inflammation of racial animosity between different ethnic groups, who were predominantly segregated and all struggling to make a living in the mining areas around Kalgoorlie. Despite this clear acknowledgement of racial disharmony, Evatt’s interest in the affair was excited by the constitutional question of whether the issue was one of law and order, or one of foreign relations, and as such, whether the matter then fell to the State or Federal Government to resolve.202 Similarly, despite having travelled to
California at the request of Billy Hughes in 1920 to examine racial tension between the
200 R v Davey and Others; Ex parte Freer [1936] HCA 58. 201 J.H. Curle, To-day and To-morrow: The Testing Period of the White Race 7th Edition, (London: Methuen, 1928), pp. 70 and 201, quoted in David Day, ‘The White Australia Policy’, in Carl Bridge and Bernard Attard (eds.), Between Empire and Nation: Australia's External Relations from Federation to the Second World War (Melbourne: Australian Scholarly Publishing, 2000), pp. 35 – 54. 202 Herbert Vere Evatt, ‘International Responsibility of the States in the Case of Riots or Mob Violence: A Study of the Kalgoorlie Riots Case, 1934’, Australian Law Journal Volume 9, Supplement 9 (1935), pp. 9 – 17.
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Americans and Japanese,203 his analysis of the exclusion and mistreatment of Japanese students by Californian schools was preoccupied by the question of whether, under the American
Constitution, the matter was one for the Central or State Governments.204 His understanding of
interracial relations, in both the domestic and international spheres, was evidently greatly affected
by his habit of elucidating political problems in legal and constitutional terms.
White Australia, the Labor Party and Universal Socialism
Evatt’s support for the White Australia policy is made somewhat problematic by his membership
of the Labor Party and his dual responsibilities to endorse the Party’s platform and represent its
electoral interests. The Labor Party had actively pursued White Australia since 1905, when, at its
federal conference it had pledged to cultivate ‘an Australian sentiment based upon the
maintenance of racial purity and the development... of an enlightened and self-reliant
community’.205 Evatt had been involved with the Party at both state and federal level consistently, although to fluctuating degrees, since he was elected to represent the working class seat of
Balmain in Premier Lang’s New South Wales Government of 1925. His involvement with the labour movement was not merely political but infiltrated his work at the bar and on the bench of the High Court. From 1920 to 1921 he acted as counsel for the Australian Railways Union before a Royal Commission into the victimisation of unionists during the 1917 railway strike.206 In 1925, he succeeded in stopping the deportation of the trade union militants Tom Walsh and Jacob
Johnson.207
203 N. Harper, A Great and Powerful Friend: A Study of Australian American Relations Between 1900 and 1975 (St Lucia: University of Queensland Press, 1987), p. 89; Peter Sales, ‘Our Best Friend in the Future: A Consideration of Australian Attitudes towards the United States after the First World War’, in Roger J. Bell and Ian J. Bickerton (eds.), American Studies: New Essays from Australia and New Zealand (Kensington: ANZASA, 1981), pp. 257 – 277. 204 Evatt, ‘International Responsibility of the States’, pp. 10 – 12. 205 Frank Farrell, ‘Socialism, Internationalism, and the Australian Labour Movement’, Labour/Le Travail, Volume 15, (Spring/Printemps 1985), p. 127. 206 Crockett, Evatt: A Life, p. 3; Dalziel, Evatt: The Enigma, p. 3. 207 Re Yates; Ex parte Walsh [1925] HCA 53; Dalziel, Evatt: The Enigma, p. 3.
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Christopher Waters has argued that fear of Asia and devotion to White Australia bordered upon
hysteria and were almost universal within the labour movement. Evatt’s advocacy of complex
and seemingly incompatible ideals sits comfortably with the chaos of competing interests that
Waters has suggested influenced the Curtin and Chifley governments in the 1940s. Within the
movement, ‘isolationism competed with internationalism, pro-Empire traditions competed with
nationalist traditions... and there was a strong element of racism’.208 Restrictive immigration was
not however, entirely compatible with the values of the labour and unionist movements. There
was a clear tension between the discourses of whiteness upon which Australia had been federated
and the universally inclusive approach of socialism. White Australia for Evatt was less a matter
of legislating racial intolerance, than it was about preserving Australian standards of living and a
white culture shared by the dominions.
Although White Australia was seen as an essential means of securing the rights of the white
worker against an influx of cheap labour,209 it also contradicted the universalism that underpinned the global socialist movement. As Marilyn Lake has identified in her work on Curtin, international socialism adhered to a principle of ‘no concern for race or frontier’. It was about a global humanity and a shared, transnational struggle to secure workers’ rights.210 When in 1926,
Evatt travelled to London to attend the World Migration Conference convened by the
International Federation of Trade Unions and the Labour and Socialist International, he strongly
upheld the White Australia policy. Yet, while he objected to the Conference’s ‘uncompromising
208 Christopher Waters, ‘Creating a Tradition’, p. 36. 209 Rupert Lockwood, Black Armada: Australia & the Struggle for Indonesian Independence, 1942-49 (Sydney: Hale & Iremonger, 1982), p. 11 210 Marilyn Lake, John Curtin: Internationalist Public Lecture by Professor Marilyn Lake, JCPML Visiting Scholar, 9 October 2003 at Curtin University of Technology, hosted by John Curtin Prime Ministerial Library, created 2003/updated 21 May 2008,
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expression of absolute freedom of migration’ he remained concerned to improve the conditions of
workers throughout the world.211
In a way analogous to Curtin, Evatt reconciled the racially discriminatory agenda of White
Australia with the conflicting ideal of a united global socialism, not by suggesting that Australia
should permit entry to the world’s workers, but by promoting improvement in workers’ rights and
standards of living internationally. Evatt, like Curtin, believed that Australia’s immigration policy
may be ameliorated if ‘international trade and international relations were better conducted’.212
Australia’s standards of living would not be devastated by an incursion of cheap labour if
prospective immigrants had high living standards in their own country.213 This rationale was
conterminous with the Federal Government’s practice of inserting reciprocity clauses into
immigration treaties. The ideology behind it being that if other countries, particularly in Asia,
sought to protect their own migration schemes, then White Australia would be viewed less as a
policy of racial discrimination and more as a justified act of economic protectionism. To achieve
this result Evatt placed faith in the capacity of international bodies to improve global living
standards. In promoting global economic and social security Evatt could alleviate the perceived
severity of White Australia, and rationalise the incongruity between it and other postwar
humanitarian ideals to which he fervently subscribed. It was for this reason that Evatt pushed for
implementation in the UN Charter of a pledge on behalf of all members to pursue full
employment, for if the citizens of every nation were prosperous, Australian protection of
Australian jobs might not be so offensive.214
211 ‘Aspects of World Migration: Final Resolutions of the Congress’, The Times, 26 June 1926, Issue 44308, p. 10. 212 Herbert Vere Evatt, ‘The Australian Way of Life’, Life Volume 14, Issue 1 (1 February 1943), pp. 55 – 57; See also the draft of this article in EC, Folder: ‘Evatt - Publications - Articles and Essays. 213 Marilyn Lake, John Curtin: Internationalist,
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When in the 1940s Evatt had left the court and entered federal politics, he relied frequently upon
the fallacious justifications for White Australia that saturated the vernacular of Australian
diplomats as they tried to defend an increasingly indefensible policy.215 He more readily employed a defence of the policy that rationalised it as ‘essential for economic and social reasons’.216 In 1943 he argued that the White Australia Policy was ‘based not so much upon racial
discrimination as upon hard practical facts’. He reiterated labour movement concerns that ‘a
White country which opens its doors to Asiatic migration practically invites a lower standard of
living’.217 Evatt was not merely parroting party policy. On the contrary, he was said to have run
his department as something of a ‘one man show’.218 Rather, he was drawing on an established
Labor discourse that associated workers’ rights with the development of a liberal and democratic
state.219 He remained influenced by labour movement concerns for white jobs, and by the
eugenicist thinking that suggested non-European or non-British races were too far removed from the civilised practices of ‘white’ culture to participate effectively in a democratic system.220
The argument that Evatt was influenced solely by a positive intention to protect white workers rather than by a negative racism may seem to some extent inadequate. For by the time Evatt entered federal politics he must have been acutely aware of the resentment that Australia’s immigration policy excited amongst her Asian and Pacific neighbours.221 However, the extent to which race thinking, and anti-Asian sentiment in particular, was promulgated during the Second
215 Meg Gurry and Gwenda Tavan, ‘Too Soft and Long Haired? The Department of External Affairs and the White Australia Policy, 1946 – 1966’, Australian Journal of International Affairs Volume 58, No. 1 (March 2004), p. 128. 216 Cablegram, Commonwealth Government to Atlee, Document 65, Canberra, 24 October 1942, AA:A981, China 60B, ii, DAFP, Volume 6, 1942, July - 1943, December, DFAT. 217 Herbert Vere Evatt, ‘The Australian Way of Life’, pp. 55 – 57. 218Zionist official, Michael Comay to Moshe Shertok, (Head, Political Department, Jewish Agency), letter, 2 May 1947, SAI 2266/15, quoted in Daniel Mandel, H. V. Evatt and the Establishment of Israel: The Undercover Zionist (London & Portland: Frank Cass Publishers, 2004), p. 2; See also Alan Renouf, Let Justice be Done, p. 101. 219 Alan Renouf, Let Justice be Done, p. 101. 220 Lake and Reynolds, Drawing the Global Colour Line, pp. 7 – 8, and 26 – 27. 221 Sir Iven Giffard Mackay, Australian High Commissioner to India argued this point explicitly in relation to the opinions of Indians on the White Australia policy in Cablegram, Mackay to Evatt, Document 331, New Delhi, 22 December 1946, AA:A1067, M46/9/21, DAFP, Volume 10, 1946, July-December DFAT.
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World War, should not be underestimated. It made White Australia, in the eyes of its supporters,
all the more pertinent. Brawley, in his history of the relationship between foreign policy and
immigration, has argued that propaganda produced by both Australia and Japan throughout the
conflict continually emphasised that disputes over immigration had contributed to the cause of the
war. The Japanese persistently criticised the transparent racism of immigration restriction, while
Australian public dialogue was pervaded by references to the impending Japanese invasion.
Misunderstandings about Japanese population growth and expansionist objectives fuelled
concerns that the war would mean the end of White Australia.222 Contemporaneously, the dominions were struggling against pressure from Britain and the United States to concede to
Chinese demands for an end to immigration exclusion and a treaty that publicly declared racial equality. There was certainly some support for Chinese immigration in Australia that developed out of a sense of gratitude for the Chinese war effort.223 Despite such support and against
mounting pressure upon External Affairs’ officers positioned throughout Asia,224 Australia
continued to resist Asiatic immigration and Chinese attempts to challenge what Evatt described as
the ‘fundamental national policy’ of White Australia.225
The Aftermath of Article 2 (7)
Once the Charter had been signed and the UN began to operate, the issue of domestic jurisdiction proved problematic on many occasions. When debating whether an issue was one of domestic jurisdiction, Evatt tended to make distinctions between those nations which had fought fascism and those which had not.226 Although he rallied against the interference of the UN in state
sovereignty in countries such as Australia, Evatt seemed to have no problem arguing upon the
ways in which other nations should be governed. He argued that Italy should be governed by a
222 Brawley, White Peril, pp. 151 – 171. 223 Brawley, White Peril, p. 174 – 177. 224 Gurry and Tavan, ‘Too Soft and Long Haired?’, p. 128. 225 Evatt to Canadian Prime Minister, McKenzie King, 27 November 1943, in Eric Montgomery Andrews, Australia and China: The Ambiguous Relationship (Carlton: Melbourne University Press, 1985), p. 116. 226 Buckley et al. Doc Evatt, p. 306.
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‘genuinely democratic regime capable of eliminating Fascist remnants’.227 In 1946, Britain was
advising against interfering with the Franco regime on the grounds that its policies were
essentially within Spain’s domestic jurisdiction. In contrast, Evatt was advising his delegates that
‘a government of Fascist origin and tendencies may adopt policies... which will seriously threaten
the maintenance of international peace and security.’228 Evatt justified an intrusion of state
sovereignty by arguing that there could be exceptions ‘where a policy actively pursued
domestically was also directed deliberately towards international friction so that it was not merely
or essentially a matter of domestic concern’.229 Similarly, Evatt worked hard to involve the UN in
the internal policies of the Greek Government in 1947. He recognised the extent to which the
nation’s problems were based on internal oppression and the autocratic nature of the Government.
He was confined however by the terms of the UN’s mandate being restricted to the protection of
political independence and territorial integrity230 making the matter little more than a border
dispute.231
Hans Kelsen argued, in the immediate aftermath of San Francisco, that Article 2 (7) negated any means by which human rights, which were primarily the concern of each state, could be safeguarded. Arguing from a purely legal standpoint, (one that Evatt would have appreciated),
Kelsen derisively refuted the idea that human rights were any better protected in the final Charter than they had been when scarcely mentioned in the Dumbarton Oaks draft.232 In pushing his
amendment to Article 2 (7) Evatt was sacrificing the efficacy of the UN and the ideals of
internationalism to the conservation of old-fashioned Westphalian sovereignty. Historian of the
UN, Robert Hildebrand, has argued that many of the shortcomings of the organisation have not
227 EC, Folder: External Affairs – Europe, no date; Buckley et al., Doc Evatt, p. 306. 228 Cablegram, Department of External Affairs to Hodgson, Document 140, Canberra, 24 March 1946, AA:A1838 T189, 854/10/2, DAFP, Volume 9, 1946, January – June DFAT. 229 Cablegram, Department of External Affairs to Hodgson, Document 178, Canberra, 9 April 1946, AA:A3196, 1946, 0.6997/98 DAFP, Volume 9, 1946, January – June DFAT. 230 Letter, Atyeo to Evatt, 13 March 1947, EC, Folder: UN Balkan Commission. 231 Buckley et al., Doc Evatt, pp. 307 – 311. 232 Hans Kelsen, ‘The Preamble of the Charter’, p. 148.
53 | Page resulted merely out of a failure of application since 1945 but were built into the Charter itself as the language of national security replaced the vocabulary of peace.233 Evatt’s failure after San
Francisco to involve the UN in struggles against fascist governments illuminates the damaging effect that the ban on intervention in domestic matters had the potential to impose.
233 Robert C. Hildebrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security (Chapel Hill: University of North Carolina Press, 1990), pp. x and 256.
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Chapter III
Trusteeship and Australian Involvement in Papua New
Guinea
At the San Francisco Conference in 1945, representatives of the UN’s member states accepted
that a declaration concerning the rights, interests and aspirations of non-self governing peoples
should be included in the Charter of the new world organisation. Under Article 73 of the Charter,
inhabitants of non-self governing territories would have their well-being promoted to the utmost
by their administering state. Each administering state also agreed to assist in the progressive
development of self-government and free political institutions and to take due account of the
political aspirations of the peoples of each territory.234 Under chapters XII and XIII a new system was established for placing territories under international trusteeship, and for monitoring their operation and administration. Reference to trusteeship was absent from the original Dumbarton
Oaks draft and so formal proposals were put forward at San Francisco by the four sponsoring powers and France and Australia.235 Despite Evatt’s tendency to overstate Australia’s role in the formulation of the trusteeship system,236 his primary objectives for trusteeship were generally in line with the ambitions of the major powers. Evatt expected a general pledge covering all non- self-governing territories and also specific arrangements for implementation of that pledge.237
234 Article 73, particularly clause (b), Chapter XI, Charter of the United Nations. 235 Documents of the United Nations Volume 3, pp. 604 – 619; See also Evatt, ‘The United Nations: Its Formation at San Francisco’, Oliver Wendell Holmes Lecture delivered at Harvard University, 1947, p. 10, EC, Folder: Australian News and Information Bureau (B), p. 17. 236 Herbert Vere Evatt, ‘Territorial Trusteeship: Statement at the San Francisco Conference’, 10 May 1945, Australia in World Affairs, p. 28. 237 Herbert Vere Evatt, Report to ABC Correspondent Alan Carmichael, May 10 1945, EC, Folder: United Nations – Conference on International Organisation (San Francisco Conference; 1945) - Press Statements.
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This was essentially the substance of the working paper drawn up by American delegate
Commander Harold Stassen, which brought together the common principles of each delegation’s proposal.238
Throughout the Second World War, debate over the viability of old-world Empires and the morality of colonialism exacerbated antagonism between Britain and the United States.239 Anti- colonial sentiment in the US was widespread. President Roosevelt often evoked the powerful discourse of the American Revolution against Britain’s colonial practices and in so doing made complex questions of colonial administration static. Policy makers in the British Commonwealth were often frustrated by the simplifying effect of such language. In an article submitted for the
Ninth Conference of the Institute of Pacific Relations240 by the Australian Institute of
International Affairs (an organisation with substantial influence on the Department of External
Affairs241), P. D. Phillips noted that:
criticisms of imperialism have too often been promoted by a vague sentiment, uniformed by factual knowledge, of the difficulties of colonial government, of the slow rate of social evolution amongst backward peoples... It is clearly true to say that at the outbreak of the war, and for the first year or so of hostilities, these errors of judgment were conspicuous in... public discussion of an uniformed character. The result was a dangerous development conspicuous in Anglo-American relations.242
238 Ruth B. Russell, A History of The United Nations Charter: The Role of the United States 1940 – 1945 (Washington D.C: The Brookings Institute, 1958), p. 809. 239 Wm. Roger Louis, Imperialism at Bay 1941 – 1945: The United States and the Decolonization of the British Empire (Oxford: Clarendon Press, 1977), p. 7. 240 The Ninth Conference of the Institute of Pacific Relations took place from January 6 – 17, 1945, in Hot Springs, Virginia. The conference discussion focused upon security in the Pacific. Evatt did not attend but some notable members of the Australian delegation include Sir Frederic Eggleston, Australian Minister to the United States and former Minister to China, K. H. Bailey, Professor of Public Law, Melbourne University, and member of the Australian Delegation at the League of Nations, and Alan Watt, diplomat at the Australian Legation in Washington D.C. during the war. See; Institute of Pacific Relations, Security in the Pacific: A Preliminary Report of the Ninth Conference of the Institute of Pacific Relations, Hot Springs, Virginia, January 6 - 17, 1945 (New York: Institute of Pacific Relations, 1945). 241 Diane Stone, Capturing the Political Imagination: Think Tanks and the Policy Process (London & Portland: Frank Cass, 1996), p. 119; Ian Marsh and Diane Stone, ‘Australian Think Tanks’, in Diane Stone and Andrew Denham (eds.), Think Tank Traditions: Policy Research and the Politics of Ideas (Manchester: Manchester University Press, 2004), pp. 247 – 263; Inderjeet Parmar, ‘The International Dimension: Institutes of International Affairs: Their Roles in Foreign Policy-Making, Opinion Mobilization and Unofficial Diplomacy’, in Stone and Denham (eds.), Think Tank Traditions, pp. 19 – 33. 242 P. D. Phillips, ‘Australia's Attitude to the Pacific Dependencies’ Pacific Affairs Volume 18, No. 1 (March 1945), p. 83.
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The British and particularly Churchill remained sceptical about the intentions of American policy
makers, believing post-war expansion to be the primary motivation behind talk of trusteeship.243
Indeed, views on postwar policy for dependent peoples were not uniform among American officials. The State Department was principally responsible for driving the international discussion of the status of non-self-governing territories. Secretary of State, Cordell Hull, advocated progress towards self-government and timetables for independence in more advanced colonies.244 He spoke of trusteeship as a matter very close to his heart, one to which both he and
his department had devoted intense thought and many hours of work and study.245 In contrast to the liberal views of State Department officials, the US Navy and Joint Chiefs of Staff opposed trusteeship, fearing international intervention in the former Japanese mandated islands which were of great strategic importance to the security of the Pacific.246 The views of the US Navy were certainly influential among policy makers and in Congress, despite the idealism of public rhetoric. Raymond Dennett, in an article published on the opening day of the San Francisco
Conference, noted that arguments of the US Navy concerning America’s strategic requirements for bases in the Pacific would fall on ‘sympathetic Congressional ears’. He was also convinced that the public would support American control of the Pacific islands in view of the American lives lost fighting to secure them.247
Evatt’s Position on Trusteeship
Evatt was not obliged to express any views that were repugnant to his personal sensibilities on trusteeship at San Francisco.248 The official Australian policy on trusteeship had been decided
243 Louis, Imperialism at Bay, p. 8. 244 Louis, Imperialism at Bay, p. 176. 245 Cordell Hull, The Memoirs of Cordell Hull: Volume II (London: Hodder & Stoughton, 1948), p. 1234. 246 Raymond Dennett, ‘U. S. Navy and Dependent Areas’, Far Eastern Survey Volume 14, No. 8 (25 April 1945), p. 94 and Louis, Imperialism at Bay, pp. 18 – 19. 247 Dennett, ‘U. S. Navy and Dependent Areas’, pp. 94 – 95. 248 Louis, Imperialism at Bay, pp. 301 – 302
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early in the war. The main feature of it was to promote the ‘welfare and advancement of native
peoples’.249 Evatt’s rhetoric at San Francisco was simply a continuation of the views he had been expressing during the previous three years.250 No doubt Evatt, who had written on the British mandates in 1934 and who was well versed in both the history and legal dimension of the trusteeship question,251 was instrumental in outlining the official Australian position. Evatt has
been credited with pursing a very liberal agenda in the trusteeship negotiations and history has
accorded him more recognition in this area than he perhaps deserves.252 Kylie Tennant has
suggested that Evatt not only proposed a system of reporting to advisory bodies, but further that
he proposed the general principle of the primacy of welfare and development to the
administration of non-self governing territories.253 Certainly, this is a claim the Australian
delegation made. When Commission II (General Assembly) came together at San Francisco to
hear the report of the trusteeship committee, Forde noted that the Australian Delegation was the
‘first to propose officially... that the chapter on trusteeship should contain a declaration of
principles’.254 While this may be true, the idea of a declaration of principles had been a
foundational aspect of American dialogue on trusteeship for many years prior to San Francisco.
In fact, Evatt relied upon the history of the idea to promote the extension of principles to all
dependent peoples.255 He recalled the commitment made by the League of Nations to foster the
well-being and development of those peoples ‘not yet able to stand by themselves under the
249 Cable, Hood to Shedden, Document 84, Canberra, 8 May 1945, AA: A1066, P45/153/2, ii, DAFP, Volume 8, 1945 DFAT. 250 Herbert Vere Evatt, ‘Australia’s Future Role in the Pacific’, Daily Telegraph, 18 August 1943, in Evatt, Foreign Policy of Australia, p. 133; Evatt, ‘Territorial Trusteeship’, pp. 28 – 33. 251 Herbert Vere Evatt, The British Dominions as Mandatories (Melbourne: Melbourne University Press, 1934). 252 Louis, Imperialism at Bay, p. 545. 253 Tennant, Evatt: Politics and Justice, p. 168. 254 ‘Verbatim Minutes of Third Meeting of Commission II’, 21 June 1945, Document 1144, Documents of the United Nations Volume 8, p. 136. 255 Evatt, ‘Territorial Trusteeship’, pp. 31 – 32.
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strenuous conditions of the modern world’256 and the objective of the Atlantic Charter to secure freedom from want and fear for ‘all men’.257
It is true that Evatt’s appeal for the principles of trusteeship to extend to all dependent peoples was a step further than the British were initially willing to go. When representatives of
Commonwealth countries met in London in early April 1945, the British had every intention of strongly resisting any proposal that might be put forward by the United States for multiple or international mandates. The British were only willing to accept a single-power system similar to the mandates created under the League of Nations where a one parent-state took responsibility for a non-self governing territory.258 In many ways, their aim was simply to continue their empire,
albeit pledging to better administer each colony and to protect the interests of the natives therein.
They did not wish to be accountable to any international body beyond the degree to which they
had been under the previous mandates system. Britain wanted only to continue the previous
system and to bring into it the soon to be annexed enemy territories. In response to the British
proposal, put forward by Secretary of State for the Colonies Oliver Stanley, Evatt advocated a
general statement of principles that he hoped would apply to all dependent people, whether or not
they lived in mandated or ex-enemy territories. In so doing, he saw himself simply keeping up
with international public opinion. He argued that such recognition would be a ‘logical and almost
inevitable development from past policies and statements’. Evatt conceded that ‘international
concern in the welfare of dependent peoples had increased and would increase in future. Public
interest was real and criticism could not be avoided’. Failure by British Commonwealth countries
256 Article 22, The Covenant of the League of Nations. 257 ‘Sixth Principle’, The Atlantic Charter 14 August, 1941, created 1996/updated 09 September 2008, The Avalon Project hosted by Yale Law School,
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to acknowledge their responsibilities to territories under their administration would not only
provoke criticism but would suggest that colonial powers had something to hide.259
Later, at San Francisco, Evatt would emphasise the need for a system of accountability that would
be imposed upon administering powers if necessary.260 He believed not only that the principles of welfare and development should be applied comprehensively but that the requirement of reporting to the UN should be made obligatory rather than voluntary.261 Evatt was instrumental in
having inserted into the Charter a duty upon administering powers to report to the UN.262 Article
73 (e) required administering powers ‘to transmit regularly to the Secretary-General... information... relating to economic, social, and educational conditions in the territories for which they are respectively responsible’.263 This provision would later act as a technical aid to colonised peoples seeking independence, a consequence that Evatt did not foresee and actually opposed.264
Evatt did not go significantly further than the British position. His proposal to extend principles of welfare to all dependant peoples had been foreshadowed in a Draft Constitution of
International Organization prepared by the US Department of State in July 1943.265 He did not
suggest that non-self-governing territories should be administered by an international body, the
consequence of which would be the relinquishing of all control over Australia’s interests in Papua
and New Guinea and the collapse of all European empires. Rather, he wished the new
international body to have advisory functions and to be empowered to make reports and visit
259 Evatt ‘Minutes of the British Commonwealth Meeting’, Document 66, London, 4 April 1945, AA: A7386, DAFP, Volume 8, 1945 DFAT. 260 W. J. Hudson, Australia and the Colonial Question at the United Nations (Sydney: Sydney University Press, 1970), p. 24. 261 Evatt, ‘Territorial Trusteeship’, p. 33; See also Hudson, Australia and the Colonial Question, p. 25. 262 Evans, ‘Evans on Evatt’, p. 30; Evatt, ‘H. V. Evatt’s Role in Drafting the United Nations Charter’, p. 6. 263 Article 73 (e), Charter of the United Nations. 264 Hudson, Australia and the New World Order, p. 138. 265 ‘Article 12, Draft Constitution of International Organisation, July 14, 1943’, Postwar Foreign Policy Preparation, 1939 – 1945 Department of State Publication 3580 (Washington, 1949), p. 481, quoted in Goodrich, The United Nations, p. 297.
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dependent territories.266 Furthermore, he did not suggest that administering powers should be forced to enter into trusteeship agreements. While Evatt supported international supervision, he did not envisage international control and did not promote timetables for independence. As
Huntley Wright has argued, his ‘position stopped well short of the system of international administration proposed by Hull’.267
There were more liberal positions than Evatt’s put forward at San Francisco. Carlos P. Romulo,
head of the Philippine delegation, proposed that the term ‘independence’ be inserted as a general
principle of trusteeship in the chapter’s preamble, arguing that in doing so, he was speaking for
the 600,000,000 people not represented at the Conference.268 Delegates representing the NAACP,
Mary McLeod Bethune, Walter White and W. E. B. DuBois, demanded an end to colonialism, a
transition to autonomy and representation for colonised peoples on the Trusteeship Council.269
Iraqi delegate, Fadhil al-Jamali, criticised the new trusteeship system on the night that the fourth
Committee was meeting to congratulate itself on finalising an outline for the system. He argued that it disregarded the wishes of dependant peoples as to their choice of administering power, denied them access to the Trusteeship Council and provided no specific regulation as to how a trusteeship could be terminated.270 Even the Soviets pushed for the UN to have greater control over colonial administration. Head of the Soviet Delegation, Vyacheslav Molotov, stated at a press conference on 7 May, that dependent countries must be enabled to ‘take the path of independence’.271 Having no direct responsibility (at least in a formal sense) for colonies, meant
266 Evatt ‘Minutes of the British Commonwealth Meeting’, Document 66, London, 4 April 1945, AA: A7386, DAFP, Volume 8, 1945 DFAT. 267 Huntley Wright, ‘Protecting the National Interest: The Labor Government and the Reform of Australia's Colonial Policy, 1942-45’, Labour History No. 82, (May 2002), p. 69. 268 ‘Romulo Champions Inserting 'Independence' In Objectives Preamble for Dependent Races’, New York Times June 2 1945, p. 10. 269 Sherwood, ‘There Is No New Deal for the Blackman’, pp. 77, 84. 270 Fadhil al-Jamali, ‘Verbatim Minutes of Third Meeting of Commission II’, 21 June 1945, Document 1144, Documents of the United Nations Volume 8, pp. 132 - 134. 271 William C. Johnstone, ‘Trusteeship for Whom?’, Far Eastern Survey Volume 14, No. 12 (June 20 1945), p. 157.
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that the Soviets were free to present themselves as the vanguard of anti-colonialism.272 Evatt’s position on trusteeship was out of step with progressive internationalist discourses in the postwar period primarily because these discourses were incompatible with his ideas on race and his vision for Australian dominance in the Pacific. It was in the Australian Trust Territory of Papua New
Guinea that the tensions between these various ideologies became most apparent.
Tutoring the Uncivilised: A Gradualist Position
The term ‘independence’ was ideologically loaded in the postwar period and strenuously avoided by even those who considered themselves opposed to colonialism. William Roger Louis has argued that Roosevelt, like Wilson before him, was a gradualist who ‘foresaw the possible independence of colonial peoples only after a period of tutelage by the ‘parent’ states’.273 Cordell
Hull recalled in his memoirs the ‘irremovable objection’ to the word ‘independence’ of British
Foreign Secretary Anthony Eden.274 In his analysis of Evatt’s position, Louis suggests that Evatt
too was a gradualist and that although he probably did not envisage independence for New
Guinea in the twentieth century, ‘he would not have opposed it’ had it occurred.275 On the
contrary, although Evatt was insisting in late 1945 that the UN could only be effective ‘if its legal
and constitutional framework’ met the ‘growing and changing needs of the peoples of the
world’276, eight years later he was still insisting that the granting of autonomy to Papua New
Guinea would result in ‘disorder, anarchy and the destruction of tribal life’.277
The great empires had never disguised their concerns about the trusteeship provisions. The
French, like the British, wanted only an extension of previous systems governing ex-mandatory
272 Harold Karan Jacobson, ‘The United Nations and Colonialism: A Tentative Appraisal’, International Organization Volume 16, No. 1 (Winter 1962), p. 39. 273 Louis, Imperialism at Bay, pp. 4, 9. 274 Hull, The Memoirs of Cordell Hull: Volume II, p. 1238. 275 Louis, Imperialism at Bay, p. 291. 276 Evatt, ‘The Future of the Pacific’, p. 155. 277 Evatt, EC, Folder: UN Trusteeship, undated but obviously written in late 1953 or early 1954.
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and ex-enemy territories.278 A completely opposing view was taken by the Chinese279 and
Soviet280 delegates who insisted that the Charter should recommend the ‘development to independence’ of colonial peoples.281 The term independence was initially favoured by the
American delegation also, but concerns over losing Hawaii to a nationalist ideal eventually
changed the minds of most delegates. They managed to still appear to support independence
however, by including the term in chapter XII as an objective of the system rather than in the
declaration of principles in chapter XI which mentioned only self-government.282 The Americans had also managed to secure their own strategic interests in ex-Japanese mandated Pacific islands with the insertion of an exclusion clause for ‘strategic areas’. Any function of the UN concerning those strategic areas was to be exercised by the Security Council where the US had the veto power.283
In the postwar period international momentum for change to the style of colonial administration that had dominated nineteenth century political relationships increased. Leland Goodrich, in one of his many analyses of the UN, noted that the war ‘had so discredited colonialism as to make it no longer defensible in traditional terms’.284 Although nineteenth century scientific claims of
inherent racial difference could no longer be applied to colonial peoples, this did not mean that
colonial practices did not continue under the guise of a reformed rhetoric. Scott MacWilliam has
recently argued that the impetus for change merely forced a renegotiation of the relationship
278 ‘French Preliminary Draft’, 5 May 1945, Document 2, Documents of the United Nations Volume 3, p. 605. 279 The Chinese proposal suggested that the ‘basic objective of the trusteeship system’ should include the promotion of ‘progressive development toward independence or self-government as may be appropriate to the particular circumstances of each territory and its people’, ‘Draft Proposals of the Chinese Delegation on International Territorial Trusteeship’, 10 May 1945, Document 2, Documents of the United Nations Volume 3, p. 615. 280 The Soviet amendment suggested that the aim of trusteeship should be ‘to expedite the achievement... of full national independence’, ‘Amendments of the Soviet Delegation to the United States Draft on Trusteeship System’, 11 May 1945, Document 2, Documents of the United Nations Volume 3, p. 618. 281 Norman Bentwich and Andrew Martin, A Commentary on the Charter of the United Nations (London: Routledge & Kegan Paul, 1950), p. 143. 282 Louis, Imperialism at Bay, pp. 538 - 541 283 ‘Arrangements for International Trusteeship: Additional Chapter Proposed by the United States’, 5 May 1945, Document 2, Documents of the United Nations Volume 3, p. 608. 284 Goodrich, The United Nations, p. 299.
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between nationalism and British Imperialism.285 Evatt endorsed the ideals of welfare, universal
full employment, economic development and human rights because he believed that global
security was dependent upon the elimination of human suffering. He subscribed to the ideal of
positive peace; that peace was a condition needing to be actively maintained.286 Evatt referred
frequently to Roosevelt’s Four Freedoms Speech and the language of the American-British
Atlantic Charter of 1942.287He maintained that Australian security, development and prosperity
were conditional upon the collaboration of peace loving nations to ensure that ‘all men in all the
lands shall live out their lives in freedom from fear and want’.288 This reliance upon rights based
discourses however, obscured the actual policies of the Australian Government in the Pacific and
specifically in Papua New Guinea. The rhetoric of trusteeship and Australia’s commitments to
colonial reform were inseparable from Australia’s strategic and commercial interests in the
Pacific.289
While Evatt was promoting universal welfare and self-governance for dependant peoples,
Australia was ‘building an empire’ in Papua New Guinea. In late 1946 Australia submitted to the
General Assembly a trusteeship agreement on New Guinea in accordance with Articles 78, 79
and 81 of the Charter. Under the agreement, Australia’s powers of administration were extended
rather than limited. Papua was brought into joint administration with New Guinea and, unlike the
restrictive position of their previous mandate, Australia was able to secure the islands
militarily.290 Chifley wanted the agreement to obtain for Australia ‘complete and exclusive power
285 Scott MacWilliam, ‘Papua New Guinea in the 1940s: Empire and Legend’, in David Lowe (ed.), Australia and the End of Empires: the Impact of Decolonisation in Australia’s Near North, 1945 – 1965 (Geelong: Deakin University Press, 1996), p. 31. 286 Herbert Vere Evatt, ‘Peace Must be More than Absence of War’, Labor Digest Volume 1, No. 7, (September – October 1945), pp. 1 – 5. 287 Russell, A History of The United Nations Charter, pp. 34 – 35, 975. 288 Herbert Vere Evatt, CPD, House of Representatives, Volume 176, 14 October 1943, p. 569. 289 Wright, ‘Protecting the National Interest’, p. 66. 290 Hudson, Australia and the Colonial Question, p. 83.
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in controlling the administration of New Guinea’.291 While public officials in Australia habitually criticised archaic colonial traditions, in practice, they could be continued and defended with reference to the new ‘positive colonialism’.292 Evatt unambiguously stated on many occasions
that native welfare operated concurrently with economic and military involvement in what he
considered a ‘vital strategic area’.293
In practice, the rhetoric of humanitarian treatment of dependent peoples worked concurrently with an expansionist political agenda in Papua New Guinea. With his professed purpose being to ameliorate the economic condition of the natives, Evatt could combine the ethics of trusteeship with the pursuit of economic benefits for Australia. MacWilliam has argued that Evatt and
Commander in Chief of the Australian Armed Forces, Sir Thomas Blamey, had analogous views on the duality of ethical principles and commercial advantage. Blamey was advising the
Commonwealth Government in 1944 that Australia could ‘use policy on the highest moral level as a justified weapon of power politics to protect not only the future of the native peoples... but the strategic security of Australia’. In Papua New Guinea he saw morality coinciding happily with expediency.294 Similarly Evatt’s constant espousal of the principles of welfare and economic justice operated in Papua New Guinea to justify a continued Australian presence there. He wrote in The Daily Telegraph in 1943 that there was room for great industrial expansion for Australia in the undeveloped markets of the north and that never had a ‘good neighbour policy’ been more desirable in the interests of all concerned.295 For Evatt, his faith in the concept of positive peace
as a means of preventing war, was contingent upon administering powers raising the standard of
living in each trust territory and ensuring that the ‘ordinary man’ had opportunities for
291 J. B. Chifley, CPD, House of Representatives, Volume 188, 7 August 1946, p. 3853. 292 MacWilliam, ‘Papua New Guinea in the 1940s’, p. 30. 293 Herbert Vere Evatt, San Francisco Chronicle , 3 May 1945, p. 3, quoted in Ian Downs, The Australian Trusteeship: Papua New Guinea, 1945 – 1975 (Canberra: Australian Government Publishing Service, 1980), p. 5. 294 Blamey to Curtin, 4 February 1944, p. 5, Commonwealth Record Series, MP742/1, item 284/1/57, National Australian Archives, quoted in MacWilliam, ‘Papua New Guinea in the 1940s’, p. 33. 295 Herbert Vere Evatt, ‘These Should be Our Seven War Aims’, The Daily Telegraph 18 August 1943, p. 6.
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employment and could share in the ‘benefits of modern means of production’. This charitable
proposal would benefit not only dependent peoples but would also ‘increase world trade and thus
benefit the peoples of other countries’.296
The gradualist position of most allied leaders was not so different to nineteenth century
justifications of colonialism based upon the civilising missions of western states in the innately
uncivilised cultures they occupied. International law academic, Antony Anghie, in his recent
work on imperialism and sovereignty, argued that in the twentieth century the problem of cultural
difference was no longer presented in terms of a distinction between civilised and uncivilised but
rather in terms of the ‘backward’ and ‘advanced’. Essentially it signalled a shift from racial and
cultural to economic categorisation of difference. This shift did not operate to eliminate power
imbalances. In contrast, it imbued international law with new types of control and management.
Measuring the advancement of a people by reference to economic criteria was in many ways
more dangerous than previous civilisational discourses because it replaced a vocabulary that was
ostensibly racist with a series of concepts that appeared neutral and quantifiable.297 The threat of
continued imperial domination that lurked behind the idealism of global welfare and in the
infantilising terminology of colonial ‘tutelage’ and ‘parent-states’ did not go unnoticed in the
postwar period. NAACP representative at San Francisco, Walter White, argued in 1945 that ‘the
United States, Great Britain, France, and other Allied nations must choose without delay one of
two courses – to revolutionise their racial concepts and practices, to abolish imperialism and grant
full equality to all of its peoples or else prepare for World War Three. Another Versailles Treaty
providing for ‘mandates’, ‘protectorates’, and other devices for white domination will make such
a war inevitable (emphasis mine)’.298
296 Herbert Vere Evatt, ‘Summary of a Speech given by Evatt at the San Francisco Commercial Club, Monday, April 30, 1945’, in EC, Folder: UN – Speeches and Statements by Evatt. 297 Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005), pp. 189 – 190. 298 White, A Rising Wind, p. 154.
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Australian Interests in the Pacific
In Evatt’s vision for the postwar world, Australia would play a dominant role in maintaining
security in the Pacific. In a speech given at the San Francisco Commercial Club in April 1945
Evatt declared that ‘having fought in two wars to preserve democracy and international decency’
Australia considered itself a Security power, ‘that is to say, a power not only willing and able
instantly to fight for the maintenance of international order but also awake to the issues and ready
to take an initiative toward decisions affecting the maintenance of international order’.299
Australia’s location in the Asia-Pacific region however, meant that race was destined to
substantially affect the role Australia would play and the kind of policies a postwar government
would bring to the region. White Australia remained a central part of this vision. Evatt argued in
1943 that Australia’s security in the Pacific was contingent upon population growth based upon
‘the principle of White Australia’ and the ‘encouragement of migration of suitable migrants’
(emphasis mine).300 The Australian-New Zealand Agreement of 1944 also contained a provision that every government had the right to control immigration to all territories within its jurisdiction.301 The agreement, of which Evatt had been the principal author, was formulated in
response to Evatt’s frustration over not being consulted by the major powers in key negotiations
for postwar reconstruction. Failure to consult Australia left Evatt with a fear that all post war
settlements would continue to be determined exclusively by the major powers.302 The Australian-
New Zealand Agreement was a result of Evatt’s anger that ‘decisions affecting the future of
certain portions of the Pacific and vitally affecting both Australia and New Zealand were not only
299 Evatt, ‘Summary of a Speech given by Evatt at the San Francisco Commercial Club’. 300 Evatt, ‘Australia’s Future Role in the Pacific’, p. 133. 301 Clause 32, Australian-New Zealand Agreement 1944, Document 26, Canberra, 21 January 1944, Foreign Affairs, Australian Treaty Collection, DAFP, Volume 7, 1944, DFAT; See also Herbert Vere Evatt, ‘Statement Issued by the Minister for External Affairs on the Official Release of the Full Text of the Australian-New Zealand Agreement, 21 January 1944’, Foreign Policy of Australia, p. 157. 302 Alan Watt, The Evolution of Australian Foreign Policy, 1938 - 1965 (London: Cambridge University Press, 1967), p. 73.
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made but publicly announced without any prior reference either to the Australian or the New
Zealand Government’.303
In the Agreement Evatt took the bold step of asserting territorial aspirations and making clear his
intention to make Australia a key player in the Pacific region. The Agreement brashly stipulated
that disposal of Pacific territory after the war should only be done in consultation with both
Australia and New Zealand.304 Wright has noted that their territorial ambitions resulted from a fear of American domination in the Pacific305 yet Evatt was certainly keen to have an American military presence north of the equator, believing that such a scenario would improve ‘the security of Australia and the whole world’. He wanted ‘reciprocal facilities’ whereby both ‘America and
Australia should have access to American bases in the Philippines’.306 In 1944, Evatt was arguing for the restoration of the French Empire in contrast to the views of American and South African leaders. He also envisaged extension of Australian sovereignty over the New Hebrides, at least to the extent that Australia should ‘take over the British share of the condominium’.307 Evatt hoped
that Australia could develop a ‘buffer zone’ to safeguard Australia from the north ‘that would
include Portuguese Timor, Dutch and Australian New Guinea (including New Britain and New
Ireland), the Solomons, the New Hebrides and New Caledonia’.308
Huntley Wright has suggested that when Evatt spoke of economic justice as a fundamental
prerequisite for peace he was not referring to the administration of Papua New Guinea, rather he
303 Cablegram, Evatt to Johnson, Document 56, Canberra, 24 February 1944, AA:A989, 44/735/168/20, DAFP, Volume 7, 1944, DFAT; See also Crockett, Evatt: A Life, pp. 203 – 205; and C. Hartley Grattan, ‘Australia and New Zealand Agree’, 1944, EC, Folder: Australian New Zealand Pact, January to April 1944. 304 Clauses 24 – 28, Australian-New Zealand Agreement 1944, Document 26, Canberra, 21 January 1944, Foreign Affairs, Australian Treaty Collection, DAFP, Volume 7, 1944, DFAT. 305 Wright, ‘Protecting the National Interest’, p. 67. 306 Arthur Evans, ‘Australia Asks Use of American Bases in Pacific’, Chicago Daily Tribune, May 4, 1945, p. 8. See also cable in which Evatt makes clear his preference for the United States rather than the Soviet Union to retain primary control over Japan, Cable from Evatt to Makin, 4 November 1945, EC, Folder: External Affairs – Japan - Far Eastern Commission. 307 Cablegram, Evatt to Curtin, Document 132, Canberra, 5 May 1944, AA:A989, 43/735/302, DAFP, Volume 7, 1944, DFAT. 308 Buckey et al., Doc Evatt, p. 232; de Matos, ‘Encouraging Democracy’, pp. 4 – 5.
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was arguing for the need to bring an end to the Greater East Asia Co-Prosperity Sphere. Wright
contends that Evatt based his case for colonial reform upon the ‘illegitimate’ imperialism of the
Japanese Empire and not on the ‘reality of non-development’ in Papua New Guinea.309 Evatt was undoubtedly critical of the Japanese Empire which during the war extended to Manchuria, China, the Philippines, the Netherland Indies, French Indo-China, Thailand, British Malaya, Burma,
Papua and New Guinea. Commentators on Japan in the west also argued that an intention existed to extend the sphere to Australia, New Zealand and India.310 Evatt was appalled by the ‘atrocious
cruelties’ committed by Japanese soldiers311 and as such became passionate about the prosecution of Axis leaders for war crimes. He called for the trial of Japanese Emperor Hirohito when no other Allied leaders thought it advisable. As Malcolm Booker has noted, the Allies had just committed, ‘without real military need, one of the greatest war crimes in history’, the atomic bombings of Hiroshima and Nagasaki. Trying the Japanese for war crimes was thus viewed by some as ‘judgement by the greater criminals of the lesser’.312 The morality of western war aims
had been severely damaged by the bombings and diminished the sense of pride in victory for
many.313 In September 1945, Evatt made a statement in London on Japanese war-crimes, calling
for the prosecution of perpetrators in battle and the leaders of what he labelled a ‘system of
terrorism’.314
In his internationalist rhetoric on positive peace and the importance of Native welfare, Evatt had compartmentalised the colonies and former mandates of democratic western states from those that were run by governments that he viewed as essentially fascist. In his capacity as chairman of
309 Wright, ‘Protecting the National Interest’, p. 67. 310 A. J. Grajdanzev, ‘Japan's Co-Prosperity Sphere’, Pacific Affairs, Volume 16, No. 3 (September 1943), p. 311. 311 Herbert Vere Evatt, CPD, House of Representatives, Volume 180, 30 November 1944, p. 2531. 312 Booker, The Last Domino, p. 71. 313 Denis William Brogan, Price of Revolution (London, Hamish Hamilton, 1951), p. 210. 314 Herbert Vere Evatt, ‘Japanese Atrocities and War Crimes’, Statement made in London on 10 September 1945, accompanying a report prepared by Sir William Webb on Japanese atrocities and war crimes committed in the South West Pacific Area, in Evatt, Australia in World Affairs, pp. 65 – 67.
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a working committee for the Far Eastern Commission, Evatt reported in November 1945 on the
principles and objectives of postwar surrender policy for Japan. Included in the recommendations
was democratic governance in conjunction with limitations upon Japan’s sovereignty and
complete demilitarisation.315 The gradualist discourses to which Evatt subscribed allowed him to negotiate the major tension of the trusteeship system. He was able to endorse the idealism of welfare and democratic freedoms so central to international oratory on trusteeship, while concurrently advancing Australia’s status as a Pacific power and consolidating Australian control over Papua New Guinea.
315 Letter and Report of the Working Committee, written by Evatt in his capacity as Chairman, Washington D.C., 15 November 1945, EC, Folder: External Affairs - Japan - Far Eastern Commission.
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Conclusion
In 1946, when at the Paris Peace Conference, Evatt was asked by a Swiss reporter to define
democracy. After providing a straight-forward description of electoral processes, Evatt stated that
Allied soldiers had come to Europe to ‘help overthrow tyranny’ because they ‘believed in
democracy and they believed in it enough to fight for it and to die for it far away from their
homes and their loved ones’.316 Evatt’s vision for a postwar world was founded upon his belief that ‘peace is not merely the absence of war’.317 He had faith in the positive notion that increased
living standards through full employment and the granting of democratic freedoms would prevent
the frustrations that lead states and individuals to resort to armed aggression. Evatt therefore
regarded the UN as more than a vehicle through which to police international relations318 or to impose obligations upon states restricting the use of force. Evatt was unequivocal when he stated that ‘a permanent system of security can be made effective and acceptable only if it has a foundation in economic justice’.319 In the postwar period, the belief that global democracy was a necessary condition of peace was well established and was an essential philosophy of the UN.320
It is the commitment that Evatt showed to ‘a world in which the Four Freedoms of President
Roosevelt would be a reality’321 that has led both political historians and Evatt’s biographers and contemporaries to label him an ‘internationalist’.
316 Herbert Vere Evatt, ‘What is Democracy: Evatt Tells the World’, Paris Peace Conference, 1946, EC, Folder: Evatt Publications – Articles and Essays. 317 Herbert Vere Evatt, ‘Australia and America’, University of California Charter Address, March 1945, in Evatt, Australia in World Affairs, p. 15. 318 Herbert Vere Evatt, ‘Postwar Planning: Ministerial Statement by Dr Evatt in the House of Representatives, 19 July 1944’, in Evatt, Foreign Policy of Australia, p. 208. 319 ‘World Organisation: Ministerial Statement by Dr. Evatt in the House of Representatives, 8 September 1944’, in Evatt, Foreign Policy of Australia, p. 215. 320 Geoffrey Best, War and Law Since 1945 (Oxford: Oxford University Press and Clarendon Press, 1994), p. 55. 321 Evatt, The Task of Nations, p. 235; and see the draft of this speech, ‘Talk by Dr. Evatt, President of the United Nations Assembly from 1948 to 1949’, ABC Radio, in AA: SP369/1, 1697, Box 3: The United Nations.
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As it pertains to Evatt, the label ‘internationalist’ does not however, provide a straightforward means by which to classify and categorise his views, his policies, and his ideological understanding of the way in which a postwar world would operate. Evatt’s pursuit of an independent foreign policy through an ‘extension of [Australia’s] external commitments’322 in the
Pacific and involvement in multilateral diplomatic forums was not simply a rejection of the supremacy of Whitehall. It is certainly true that Evatt’s pursuit of an autonomous international personality for Australia was a pioneering step for Australian foreign affairs. His actions went against the grain of popular opinion in Australia. In response to the independent position Evatt adopted at the San Francisco Conference, Robert Menzies declared, that ‘whilst a new world
Charter may have a value which is as yet untried, our relationship with the British Empire has a value which has been proved in circumstances of very great trial over many generations’.323 Polls
taken in 1945 and 1946 showed that only thirty percent of the Australian population supported the
promotion of a foreign policy independent from that of Britain and other dominions. Amongst
non-Labor Party supporters that figure dropped to a mere sixteen percent.324 Evatt’s strategy to
have Australia recognised internationally was not only innovative but was also successful. In
1942, the American publication Pacific Affairs noted that the Australian Government was ‘no
longer content to follow the leadership of the United Kingdom’ and had begun to act
‘independently on a footing of national equality’.325 The author, G. W. Warnecke, paid particular
attention to Evatt, declaring that Evatt had given up ‘his seat on the High Court bench because of
his conviction that Australia was now adrift on uncharted international seas, with the guiding
lights of an older epoch flickering out’.326
322 Frederic W. Eggleston, Foreword to Australia in World Affairs by Evatt, Canberra, 1 August 1946, p. vii. 323 Robert Menzies, CPD, House of Representatives, Volume 184, 5 September 1945, pp. 5111 – 5119, quoted in Norman Harper and David Sissons, Australia and the United Nations (New York: Manhattan Publishing, 1959), p. 84. 324 Australian Gallup Polls, Nos 314 – 26, December 1945 – January 1946; Nos 264 – 71, May 1945, quoted in Harper and Sissons, Australia and the United Nations, p. 91. 325 G. W. Warnecke, ‘Australia in the United Nations’, Pacific Affairs Volume 15, No. 2 (June 1942), p. 133. 326 Warnecke, ‘Australia in the United Nations’, p. 137.
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Equality of race, gender and nation were all recognised in the preamble of the Charter formulated at San Francisco. In the chapters on trusteeship however, gradualist discourses that graded colonised peoples as dependent or backward, meant that the ideal of equality did not exist in practice. The nationalist agenda that Evatt pursued, securing a greater role for Australia in the
Pacific as a security power, resulted in Australia reinforcing its control over Papua New Guinea.
Despite the centrality of ‘native welfare’ to official Australian policy, such welfare remained inherently connected to strategic and commercial interests. Although it may not be possible to judge the sincerity of Evatt’s commitment to the ideals of universal equality that he espoused, it is clear that he saw a greater need for the operation of those ideals in colonies and trust territories not administered by democratic states. Evatt had been committed to democratic principles since he had first penned his essay on Australian liberalism in 1918 and throughout his international career he continued to view democracy and fascism as oppositional systems, the former being a precondition for peace and the latter, a surety for war. As a result of this ideological segregation,
Evatt was willing to accept the continuation of colonial practices by Allied governments if they were enveloped in a ‘reformed colonial’ discourse that prioritised native welfare.
Evatt’s biographers have been drawn to the national commitment that Evatt demonstrated at a time when many Australian citizens still considered themselves principally to be British subjects.
Yet, historical considerations that place Evatt’s commitment to the nation in opposition to the policies of Britain need to be tempered by an understanding of his adhesion to the Crown. Evatt did not believe that Australia’s right to exercise all the Prerogatives of sovereignty meant that
Australia should separate from Britain. On the contrary, he argued that the Federal Government’s power to act as a sovereign body in international relations was dependent upon the fluid and
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evolving nature of the constitutional relationship that bound Australia to the Crown.327 For Evatt, commitment to the monarchical substance of the Constitution was more than a formalistic adherence to the letter of the law. The Commonwealth to Evatt was not merely a legal fiction or an historical relic, but a political and cultural reality. Through a devotion to the legal framework that united the Crown, the colonies and the dominions, Evatt was able to negotiate the tension between Australia’s status internationally and the remnants of Britain’s Empire. While this framework operated to benefit the culturally comparable dominion states by enhancing their international positions and retaining an official and symbolic association with the Crown, it could not be made compatible with the ideals of racial equality, anti-colonialism and independence for dependent peoples that were so integral to the postwar internationalist agenda.
Although historians have recognised the inconsistency between Evatt’s endorsement of universal human rights and defence of White Australia, little focus had previously been paid to the extent to which Article 2 (7) went against the intentions and principles of the international community in the postwar period. While a changing discourse on the meaning of ‘race’ certainly did not eliminate racism from the practice of international politics,328 it did make racial inequality an objectionable rationale for discriminatory policies such as White Australia. When Evatt pressured delegates at San Francisco to adopt his amendment to restrict the interventionist capabilities of the new UN, he was effectively promoting the removal of the final means through which the international community could safeguard human rights without resorting to armed enforcement.
In complete opposition to his advocacy of positive peace, Evatt’s amendment effectively meant
327 Herbert Vere Evatt, ‘Australia in British Commonwealth and World Affairs’, in Evatt, Australia in World Affairs, p. 190 – 192; See also Eileen Powell, ‘Book Review: Australia in World Affairs’, Broadcast on 2KY, 23 October 1946, EC, Folder: Evatt – Publications – Articles and Essays. 328 For an important example of the ways in which anti-racial discourses were not immediately adopted and the horrors of Nazism not immediately realised; see Tony Judt’s analysis of the continuation of anti-Semitism in Europe, directed against returning Jews for many years after the end of the Second World War. Judt argues that although the Holocaust has now become ‘the very definition and guarantee’ of Europe’s restored humanity, its position as such must be historicised by the remnants of anti-Semitism that were not eliminated in Europe by the allied victory. See Tony Judt, Postwar: A History of Europe since 1945 (London: William Heinemann, 2005), pp. 803 – 831.
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that the UN could only react to, rather than prevent, instances where states curtailed the human
rights of citizens. International lawyer, Lawrence Preuss, argued that if applied literally ‘Article 2
(7), with its narrow and limitative proviso, would have the effect of paralysing all action by the
United Nations to bring about the peaceful settlement of any dispute of domestic origin...’329 In practice however, the new UN found ways to avoid the rigidity of Article 2 (7). As Rosalyn
Higgins has argued, matters considered to fall within domestic jurisdiction are ‘incapable of capture and crystallisation for all time’.330 As early as 1946, delegates in the General Assembly were arguing for intervention to safeguard human rights. Panamanian Foreign Minister, Ricardo
Alfaro, emphatically declared that human rights had been ‘taken out of the province of domestic jurisdiction’ and ‘placed within the realm of international law’ by the Charter formulated at San
Francisco.331 Alfaro’s view on which matters should be considered domestic and which international was clearly very different to the views of Australia and the major powers. This discrepancy goes some way to explaining how Evatt’s amendment to Article 2 (7) was passed in an international environment so concerned with the formalising of human rights.
In 1995, Gareth Evans argued that Evatt defies easy labelling. In the same speech however, Evans went on to label Evatt as ‘Australia’s first genuine internationalist’.332 The term internationalist is
not easily defined and employing it to characterise Evatt’s ideologies is incredibly problematic.
Although Evatt publicly devoted himself to the ideals of universal democratic freedom and
equality and to the concept of international community embodied by the UN, these commitments
were not the sole criteria upon which he devised Australian foreign policy. Evatt may have been
inspired by Wendell Willkie’s vision for ‘one world’ but his commitment to the legal substance
329 L. Preuss, ‘Article 2, Paragraph 7’, p. 588. 330 Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations (London & New York: Oxford University Press, 1963), p. 61. 331 Mr. Alfaro, Representative of Panama in the United Nations General Assembly, Journal of the United Nations, No. 54, Supplement A-A/P.V./50, 9 December 1946, 368. Quoted in Paul Gordon Lauren, ‘First Principles of Racial Equality: History and the Politics and Diplomacy of Human Rights Provisions in the United Nations Charter’, Human Rights Quarterly Volume 5, No. 1 (February 1983), p. 24. 332 Evans, Evans on Evatt, p. 29.
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Bibliography
PRIMARY SOURCES
PRIMARY SOURCES BY EVATT
BOOKS
Evatt, Herbert Vere, Australian Labour Leader: The Story of W.A. Holman and the Labour
Movement (Sydney: Angus and Robertson, 1940).
———, The British Dominions as Mandatories (Melbourne: Melbourne University Press, 1934).
———, Liberalism in Australia: An Historical Sketch of Australian Politics down to the Year
1915 (Sydney: The Law Book Company, 1918).
———, Postwar Reconstruction: A Case for Greater Commonwealth Powers (Canberra: L. F.
Johnston, Commonwealth Government Printer, 1942).
———, The King and his Dominion Governors: A Study of the Reserve Powers of the Crown in
Great Britain and the Dominions (London: Oxford University Press, 1936).
———, The Royal Prerogative (Sydney: The Law Book Company, 1987, first published in
1924).
———, The Task of Nations (New York: Duell, Sloan and Pearce, 1949).
PUBLISHED SPEECHES
Evatt, Herbert Vere, Australia in World Affairs, (Sydney: Angus and Robertson, 1946).
———, Foreign Policy of Australia: Speeches by the Rt. Hon. H. V. Evatt (Sydney: Angus and
Robertson, 1945).
———, The United Nations (Cambridge: Harvard University Press, 1948).
———, ‘World Wide Security Found only in World Wide Organization: Great Power Difficulties would
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have been Greater Without the United Nations’, Vital Speeches of the Day Volume 15, Issue 13
(15 April 1949), pp. 415 – 416.
ARTICLES
Evatt, Herbert Vere, ‘Australia on the Home Front’, Australian Quarterly Volume 9 (1 March
1937), pp. 68 – 75.
———, (Pseud.: ‘Not at All’), ‘Australian nationalism and Imperial Federation’, Australian
Worker (Sydney), Volume 26, Issue 22 (31 May 1917), p. 19.
———, ‘Australia’s Part in the Creation of Israel’, Australian Jewish Historical Society Journal
and Proceedings, Volume V, Part IV (1961), pp. 152 – 171.
———, ‘Constitutional Interpretation in Australia’, University of Toronto Law Journal Volume
3, No. 1 (1939), pp. 1 – 23.
———, ‘Dr. Evatt replies to Churchill: Curtin was Right on Burma’, The Herald (November 13
1950), p. 7.
———, ‘International Responsibility of the States in the Case of Riots or Mob Violence: A Study
of the Kalgoorlie Riots Case, 1934’, Australian Law Journal Volume 9, Supplement 9
(1935), pp. 9 – 17.
———, ‘Peace Must be More than Absence of War’, Labor Digest Volume 1, No. 7 (September
– October 1945), pp. 1 – 5.
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