IO Files: USGA/Gen/7
Briefing Book Paper
8(g) The Form of Trusteeship Agreements
the problem
Should every trusteeship agreement to which the United States is a party be in the form of a treaty?
discussion
In American constitutional law language, the term “treaty” is applied to any international agreement which becomes binding upon the United States through ratification by the President by and with the advice and consent of the Senate “provided two-thirds of the Senators present concur”. The constitutional position of treaties as part of the law of the land, added to the traditional formalities of treaty-making, indicate that they are intended to be among the most solemn acts of the government. It would be initially assumed, therefore, that any international agreement to which the United States is a party and which attempts to determine the disposition of territories and to delimit the political rights of nations would be made in the form of a treaty. Trusteeship agreements, which are basically political arrangements between states, fall into this category.
From the point of view of either the acquisition or the relinquishment of rights or duties, a treaty is far the best sort of instrument, both legally and politically. It might be particularly important to make trusteeship agreements by treaty in cases where the agreement [Page 548] will involve some modification of rights previously confirmed to the United States by treaty, for example rights in many of the mandated territories, or where the United States is to assume obligations, such as those of the administering authority in a trust territory.
Because of the requirement that a treaty shall be approved by a two-thirds vote in the Senate, there is always the possibility that a treaty will fail there, even though it has the backing of the administration and of a majority of both Houses of Congress.
The executive agreement, authorized by act or joint resolution of Congress, is a type of instrument which might also be used for making trusteeship agreements. Though not so universal in its applicability as the treaty, the executive agreement with Congressional authorization has been widely used to make international commitments and to give them domestic implementation.
It would seem possible also for a trusteeship agreement to take the form of an executive agreement when it is negotiated in pursuance of decisions made in a treaty to which the United States is a party.
The question of which form of instrument should be used can most properly be determined on the basis of prior consultation with the representatives of appropriate branches of the government.
recommendation
Trusteeship agreements should ordinarily be in the form of treaties or of executive agreements authorized by Congress, as may be determined on the basis of prior consultation with the representatives of appropriate branches of the government.
If a trusteeship agreement should be made for Korea before the treaty of peace with Japan is signed, such an agreement might be made by executive action authorized by Congressional resolution. It would seem possible for other trusteeship agreements to be made by executive agreement in pursuance of a previously ratified treaty, or when authorized by Congress.