The Commonwealth and the Concept of Domestic Jurisdiction

Abstract

The tendency to hold the United States entirely responsible for the domestic jurisdiction reservation has diverted attention from the role of the Commonwealth members in the definition of that clause. Commonwealth members were concerned with it at the Paris Peace Conference and the San Francisco Conference and, as members of both world organizations established at those conferences, have taken a lead in applying the reservations drafted on both occasions. At San Francisco it was the Australian, Herbert V. Evatt, as well as John Foster Dulles, who proposed broadening the effect of the domestic jurisdiction reservation in Article 2, paragraph 7, of the Charter of the United Nations. It was again Evatt who headed the sub-committee of the Security Council to determine international competence to deal with the Franco regime in Spain and who managed the reversal of the limitation for which he had fought at San Francisco. It was in a dispute between India and the Union of South Africa that the General Assembly elaborated on the beginning made by Evatt in developing the concept of “international concern.” In the World Court the Commonwealth countries have been parties to leading cases involving domestic jurisdiction and, perhaps partly through their capable legal arguments, have succeeded in having their views incorporated into Court opinions and decisions. The Permanent Court of International Justice, for example, adopted much of the British argument in its Advisory Opinion in the Tunis-Morocco Nationality Decrees case.