Secretary’s Staff Committee Files: Lot 122: Box 13147

Minutes of the One Hundred Ninety-Second Meeting of the Secretary’s Staff Committee, Washington, April 20, 1946, 9:30 a.m.

Present:46 The Secretary (presiding)
The Under Secretary
The Counselor
Messrs. Benton
General Hilldring
Messrs. McCormack
Hickerson } (for Mr. Dunn)
Gerig, IS
[Page 570]

The Committee met at 9:30 A.M.

Policy and Procedures Concerning the Negotiation of Trusteeship Agreements (Document SC–192)

Mr. Hiss presented document SC–19247 making recommendations regarding policy and procedures concerning the negotiation of trusteeship agreements. The immediate problem, Mr. Hiss said, was to formulate our position as to which are the “states directly concerned” in such agreements, under the provisions of Article 79 of the Charter. Mr. Hiss said that the British Government had transmitted to this Government on February 4 copies of draft trusteeship agreements for Tanganyika, Togoland and the Cameroons, and on January 30 the Belgian Government had similarly transmitted a draft agreement for Ruanda-Urundi. The agreements were transmitted to this Government for its “information”, and the question now arose as to how this Government should reply—as a “state directly concerned”, or otherwise. A reply would have to be made soon, or this Government would be accused of delaying the whole trusteeship program, or the British and Belgians would go ahead on the assumption that we are not interested.

It was also expected that the French Government would shortly transmit to us copies of draft agreements for the French mandates in Africa.

Mr. Hiss said an important factor in the problem was the effect which an assertion of U.S. claims as a “state directly concerned” in all the mandated territories would have on the policy which this Government may wish to apply to the Japanese mandated islands in the Pacific. He recalled that the Secretary, in a memorandum of February 23, 1946 had expressed the view that it would be unwise for the U.S. to assert a claim as a “state directly concerned” in the African mandated territories unless there was some very strong reason, because such an action might establish a precedent for assertion of similar rights by the Soviet and British Governments in the Pacific islands.

Referring to Article 79 of the Charter, Mr. Hiss said that it had been the understanding at San Francisco that the mandatory power was obviously a “state directly concerned”, while others directly concerned were to be determined by diplomatic negotiations. The importance of the question lay in the fact that no change could be made in a trusteeship agreement except with the consent of the “states directly concerned”. Since 1921, Mr. Hiss said, this Government has taken the position that title to mandates resides in the Principal Allied and Associated Powers in whose favor Germany renounced its titles. He also recalled that Secretary Hughes had asserted a U.S. [Page 571] interest in Turkish territories placed under mandate, merely on the ground of our war effort in the First World War. The U.S. has entered into treaties with the mandatory powers, based on this legal theory, which makes it impossible to modify the present mandates without United States assent. At San Francisco the U.S. took the position (informally) that we would certainly be a “state directly concerned” in all mandates. However the War and Navy Departments have recently taken the position that the United States should not assert claims as a “state directly concerned” in the African mandates since this would make it difficult for us to take a more restrictive position with respect to Pacific strategic territories. The answer to this, Mr. Hiss said, was that self-restraint by the U.S. would not cause China or the Soviet Union to exercise corresponding self-restraint. Furthermore the British have in a sense already foreclosed this question by sending copies of the draft African agreements to us and to China and the Soviet Union and thus almost inviting claims on the part of those powers to be considered “states directly concerned”. If we renounced our claims with respect to the African mandates, we might be accused of foregoing our own interests, particularly since we had taken the leading part in formulating the whole trusteeship system. Congress might feel that our treaty rights were not being safeguarded, Mr. Hiss added. Moreover in certain areas (e.g. Palestine, Western Samoa, New Guinea and Nauru) if we do not assert a claim as a “state directly concerned” we have no treaty rights.

Mr. Hiss also pointed out that the Army and Navy are concerned about limiting the number of states directly concerned in Pacific territories which will be strategic trusteeships. Trusteeship agreements for these areas will have to be approved by all members of the Security Council (including China and the Soviet Union), so excluding them at the formulation stage will not exclude them later.

Mr. Hiss said it was accordingly recommended that we consult with the British and French regarding the definition of “states directly concerned”. In these consultations we would take the following general position but keep an open mind to their suggestions:

With respect to the mandated territories, the U.S., U.K. and France as the remaining members of the Principal Allied and Associated Powers, and China and the Soviet Union, as the inheritors of the rights of Italy and Japan as Principal Allied and Associated Powers, should be “states directly concerned”.
The “states directly concerned” in the Italian colonies are the U.S., U.K., France and the Soviet Union (in accordance with the Italian armistice).
As far as the non-mandated Pacific territories are concerned, the “states directly concerned” are the acceptors of the Japanese surrender (U.S., U.K., Soviet Union and China).
The five powers would consult on an ad hoc basis to determine any other “states directly concerned”, or any others to be consulted.

Referring to the argument that the Big Five would have veto power in the Security Council over strategic trusteeship agreements, and that therefore it did not make any difference whether the Soviet Union and China were designated as “states directly concerned”, The Under Secretary asked if our position would not be prejudiced if we admitted these states were directly concerned. We were recognizing a legal right on their part which might prejudice our position in other places, he said. Mr. Hiss said that if we did not recognize this legal right we would be basing our position solely on the right of conquest.

The Secretary raised the question of the status of the non-mandated Japanese islands (e.g. Okinawa) in the event the Security Council did not approve a trusteeship agreement proposed by us. The Counselor said there would presumably be a preceding step—the disposition of the islands in the peace treaty. If we do not agree to a peace treaty we will be in possession of the islands for the time being.

The Counselor emphasized that the important thing to consider was the status of “states directly concerned”. If this meant only that such states should be consulted in advance we should construe the term broadly, but in fact the so-called “states directly concerned” must agree before a trusteeship agreement can even be submitted to the Security Council or the Trusteeship Council. Hence the more narrowly we construe the term the better. In so doing, however, let us consult other states broadly before we submit the drafts to the approving authorities. He agreed with the paper that if we broaden the definition to include ourselves with respect to all mandates, it will be impracticable to exclude the Soviet Union from any mandate. It seemed to him that it would be a legitimate construction to take “states directly concerned” to mean only the state immediately administering or in control of the territory. As many states as were interested should be consulted, however. He was not sure that the fact that a broader conception was carried away from San Francisco was important. However, he said, it must be recognized that the Charter refers to states directly concerned, in the plural, and it also refers to “agreement” to be reached among them. Mr. Hiss added that the Charter provided that terms should “be agreed upon by the states directly concerned including the mandatory power”.

The Secretary, after reading from Article 79, asked how the agreement of the “states directly concerned” was to be obtained and how the “states directly concerned” would be determined. Mr. Hickerson (who had been an adviser to the American Delegation in drafting this portion of the Charter) said the Charter was ambiguous on this point, [Page 573] and he said that frankly he thought a mistake had been made. He agreed that the Army and Navy wanted all the Japanese islands to be strategic areas and hence all the “Big Five” states would have a veto. He said he thought the most that should be done now was to consult realistically with the British and French, without taking a formal position, to see what they have in mind. He pointed out that the British had transmitted the draft agreements regarding the African mandates to us for “information” and “without prejudice to the interpretation … of ‘states directly concerned’”. He noted that the trusteeships proposed by the British were for non-strategic areas, and said that if we take the position with respect to them that all the “Big Five” are “states directly concerned”, we will in effect be extending the “Big Five” veto power to the General Assembly (which has authority over non-strategic trusteeships). Mr. Hickerson said he thought the position suggested by the Counselor (see above) was preferable.

Mr. Hiss pointed out that the veto would not be that of the “Big Five”, but of the “states directly concerned”. Moreover, the veto is negative. It is to no one’s interest except that of the mandatory power to exercise the veto. In fact the veto is being extended beyond the “Big Five” in this respect to other countries, e.g. South Africa.

The Counselor said he was not at all sure it would work out this way. The position outlined by Mr. Hiss generally assumes our right to a veto even before an agreement goes to the Trusteeship Council or the Security Council, and this would give us great influence. If it were necessary for a compromise to be reached before the agreement went to the appropriate United Nations organ, our position would be on record and hence compromised before the matter comes up in that organ. Mr. Hiss suggested we could waive our rights at the earlier stage in the interest of reaching an agreement for the higher body to consider rather than to waive them in a broad way prior to the consideration of an agreement. The Counselor emphasized his feeling that it would be much easier to reach mutual agreement if “states directly concerned” were kept to the minimum and others interested were merely consulted. The mandatory state could introduce the draft agreement. He referred to Palestine as an example—if the U.S. and the Soviet Union were accepted as “states directly concerned”, there would be others who would claim equal concern. He said he opposed drawing such a sharp line between (a) legal right to participate in the drafting and concurring on a trusteeship agreement and (b) consultation on such agreements prior to their submission to the Security Council or General Assembly.

Mr. Hiss said his proposal was designed to restrict the number of “states directly concerned” as much as feasible, but it was felt that there would have to be four or five such states in each case. He also [Page 574] re-emphasized his belief that it did not follow that other states would give up their claims merely because we did so. Mr. Hickerson suggested we could find this out by consultation with U.K. and France, at least as far as the mandated areas were concerned. If a draft agreement goes into the General Assembly with only the mandatory pushing it the result will be negotiating with 50 states in order to get approval. Mr. Hiss said his recommendation provided for this consultation, but that in order to carry out such consultation we must have prior clarification of the concept of “states directly concerned”.

Mr. Hiss suggested that timing was a further consideration. If a trusteeship agreement were turned into the General Assembly by the mandatory with the approval of only that mandatory (as proposed by the Counselor) the task of getting the agreement approved promptly by the 51 members would be much more difficult than if it had been previously approved by all those directly concerned. The Under Secretary said he did not think speed was particularly important.

Mr. Henderson asked whether Counselor’s proposal was feasible in view of the specific reference in the Charter to the plural, “states directly concerned”. The Counselor said that while the language seemed to indicate several states, the same language applied to the voluntary placing of colonies under trusteeship by a colonial power, and it would be strange to require the agreement of others for such trusteeships. Mr. Henderson said he thought the Counselor’s proposal was a very good one.

The Counselor said he would also think that we should get agreement that trusteeship agreements would be submitted to certain groups of interested states for their views.

Mr. Hickerson said he had discussed the whole problem, and particularly Western Samoa (for U.S. base rights), with the New Zealand Prime Minister, Mr. Fraser. He (Fraser) does not hold a legalistic interpretation of Article 79 but feels determination should be on an ad hoc basis and the number of “states directly concerned” kept to the minimum. With regard to Western Samoa he would prefer to consult only the United States but recognizes that Australia will also have to be consulted. Because Fraser is concerned about a tendency of Great Britain to retire from the Pacific, he would also like to see Britain assert a claim as a “state directly concerned” in Samoa.

The Under Secretary asked whether there was any difference between the Japanese mandated territories and other separated Japanese territories, in so far as this problem was concerned. Mr. Hickerson thought there might be. The Counselor pointed out that claims in the mandates go back to Versailles, whereas a new treaty will be necessary to dispose of the other Japanese territories. He said there were no specific pertinent references in the Japanese surrender terms. The [Page 575] Under Secretary said he assumed the Russians would not advance claims regarding the non-mandated territories because of the Kuriles (which they now hold). The Counselor asked whether there was any reference in the Yalta minutes which would bear out his assumption that the disposition of the Kuriles in favor of the Soviet Union was all they were to get from Japan. The Secretary said the Yalta agreement merely provided that the Kuriles “shall be handed over” to the Soviet Union, and the only argument which can be derived from this is that no claim to anything additional was advanced by the Soviet Union at that time.

Mr. Hickerson, referring to the strategic trusteeships we propose to establish over the Japanese mandated islands, said a question of tactics was involved—whether we want the main discussion at the negotiating stage, or in the Security Council. He said the Department’s experts on Russia felt that tactically our position would be a little better if we should be blocked, to have it come in the Security Council acting before the world rather than at the negotiation stage. The Secretary said he agreed with this line of reasoning—the quicker the matter went to the Security Council, the better it would be.

Mr. Hickerson said he had a formula which he had proposed in previous inter-office discussions of the problem. He favored consulting the British and French, and our course might be altered by their views, but assuming they still want to “dodge” the issue of “states directly concerned”, he would propose going directly to the Security Council with trusteeship agreements for the Japanese islands. We would say that these are being presented for approval without prejudice to the interpretation of “states directly concerned”, and that we know that all possible states directly concerned are in the Security Council, except New Zealand which has been consulted and approves. Then the whole discussion will be in the Security Council, and open.

The Secretary said that if we followed the course recommended by Mr. Hiss, and encountered the usual delays in the preliminary stage, we could then follow the procedure suggested by Mr. Hickerson, with perhaps a prior thirty-day notice of our intention to submit the draft to the Security Council. We should try to get agreement before going to the Security Council but not let the matter be indefinitely delayed.

The Under Secretary again raised the question whether our future position was not prejudiced if we recognize as legal rights the interests of certain other states in the mandated areas as “states directly concerned”. If an agreement should be defeated by a veto in the Security Council then in subsequent action we would have to take account of the fact that we had recognized their interest in the territory. Mr. Hiss said that if we base our claim solely on conquest, and a trusteeship agreement is not approved, we will have no legal claim. Mr. [Page 576] Hickerson questioned this. Referring to the Marianas, he said Germany had the last clear-cut title. She surrendered it to the Principal Allied and Associated Powers. They gave a mandate to Japan, but Japan did not acquire sovereignty. We have driven out the Japanese and are in possession of the islands, but who has title? Mr. Hickerson said it was obviously cloudy. He would hope we could reach agreement in the peace treaty with Japan, but if not, we are in de facto control. The Counselor said he thought we should avoid asserting the right of conquest over a mandated territory. Mr. Hiss said we would have to admit Japan had had some sort of title if we base our claim only on conquest.

Mr. Hiss said the immediate question was the reply to be made to the British and Belgians, and to the French when they ask. He said he assumed from the discussion that the Department was not prepared to assert the position that the U.S. is a “state directly concerned” in all the mandated territories on a legal basis. He asked whether we could say that this has been the U.S. position but we are not now asserting it, and give them our comments on the proposed agreements on their merits without asserting it.

The Under Secretary asked why we should say this has been our position. To do so assumes it is the legal position but we are not asserting it, he pointed out, and we might wish to say it was not the legal position. Mr. Hiss said it has in fact been our position for more than 20 years, and he thought we should not waive it out of hand in the hopes that other states would renounce similar interests.

Mr. Henderson said we could assert a right under existing treaties as a “state directly concerned” in Tanganyika but he did not think the Soviet Union or China could assert a legal claim either there or in the Japanese mandated islands. Their claims would have to be based on agreements yet to be made. Mr. Hickerson said we could waive our rights with respect to Tanganyika and rely on expressing our views in the General Assembly. The Under Secretary said he would prefer neither to waive or claim rights—but merely to reply because we have been consulted.

The Counselor then proposed that in its reply to the British and Belgian communications on certain proposed trusteeship agreements this Government should reserve its legal right under existing treaties und that its observations on these proposed agreements should be without prejudice to its claims as a “state directly concerned”. He further proposed that this Government should discuss the problem of defining “states directly concerned” with the British and French and should take the position that the conclusion of trusteeship agreements would be facilitated by defining this term as narrowly as possible, and that if this is agreed to this Government would propose consultation with [Page 577] as many states as have a legitimate interest in any particular trusteeship agreement.

The Secretary said he thought this might take care of the immediate situation.

Mr. Hiss suggested the War and Navy Departments should also be consulted regarding their views and to try to show them how those views may not be as valid as they think. The Under Secretary said he thought their views were pretty valid.

The agreement of the Committee was recorded as follows:

agreed that in its reply to the British and Belgian communications on certain proposed trusteeship agreements this Government should reserve its legal rights under existing treaties and that its observations on these proposed agreements should be without prejudice to its claims as a “state directly concerned”.

agreed further that this Government should discuss the problem of denning “states directly concerned” with the British and French and should take the position that the conclusion of trusteeship agreements would be facilitated by defining this term as narrowly as possible, and that if this is agreed to this Government would propose consultation with as many states as have a legitimate interest in any particular trusteeship agreement.

agreed that there should be consultation with the War and Navy Departments to ascertain their views regarding the position the Department proposes to take in defining “states directly concerned” and regarding the areas which this Government will propose should be placed under the trusteeship system, it being understood that in the event of failure to reach agreement on these matters, the Staff Committee should consider the matter again.

The meeting adjourned at 10:40 A.M.

  1. The Secretary’s Staff Committee at this time, in addition to the Secretary himself, was made up of the two Under Secretaries (Acheson and Clayton), the Counselor of the Department (Cohen), the Assistant Secretaries (Benton, Braden, Hilldring and Russell), the Legal Adviser (not present at this meeting), the Special Assistant to the Secretary for Intelligence and Research (McCormack), the Director of the Office of Special Political Affairs (Hiss) in lieu of the Special Assistant to the Secretary for International Organization and Security Affairs (there was no incumbent at this time), and the Directors or Deputy Directors of certain geographic offices (Hickerson, Vincent and Henderson), in lieu of the Assistant Secretary for European, Far Eastern, and Near Eastern and African Affairs. Mr. O. Benjamin Gerig was present at this meeting in his capacity as Chief of the Division of Dependent Area Affairs. The others named were present presumably in the capacity of secretariat officials; Mr. Lewis recorded the minutes of the meeting.
  2. Supra.