Foreign Relations of the United States, 1946, General; the United Nations, Volume I

862S.00/5–746

Memorandum Accompanying Note From the Acting Secretary of State to the British Ambassador, May 7, 1946 ⁵⁰

May 7, 1946

Comments on the Draft Terms of Trusteeship for Tanganyika, and the Cameroons and Togoland Under British Mandate ⁵¹

(Note: The comments which follow apply equally to the draft terms of trusteeship for Tanganyika, the Cameroons, and Togoland, since it is noted that these terms are identical with the exception of Articles 5 and 6 and the definition of boundaries contained in Article 1 of each draft agreement.)

Article 1a (new)

Comment.—In view of the uncertainty under the mandates system with respect to the location of rights and titles to mandated territories, the following wording is suggested as clarification of this matter:

“Upon the approval of these terms of trusteeship by the General Assembly in accordance with the Charter of the United Nations, all rights and titles in the trust territory shall thereupon be vested in the United Nations. The United Nations shall exercise these rights as trustee for the inhabitants of the trust territory.”

Article 5

Comment.—With respect to paragraph (b), it is suggested that the qualifying words “with the approval of the General Assembly or of the Trusteeship Council” should be inserted after the words “shall be entitled”. At the end of this clause, consideration should also be given to the insertion of the words “and with the terms of this agreement”. It is suggested that the words “under his sovereignty or control” be eliminated in order not to bar future arrangements of this character which might include areas not under British sovereignty or control. Consideration might be given to establishing this clause as a separate Article to follow Article 5. An additional clause should be inserted sustaining the validity of arrangements of this character already established.

It is suggested that paragraph (c) be replaced by the following three paragraphs:

• “(1) may establish and use military, naval and air bases, erect fortifications, and station and employ its own forces in the trust territory in carrying out its obligations toward the Security Council as well as for local defence and the maintenance of law and order within the trust territory.
• (2) may enlist volunteer forces for the purpose of carrying out its obligations toward the Security Council and for local defence and the maintenance of law and order within the trust territory; and
• (3) shall use such forces only within the trust territory except upon the call of the Security Council in accordance with any special agreement made by the Administering Authority under Article 43 of the Charter of the United Nations and, in recruiting such forces, shall take care that, except in case of a threat to international peace and security, as determined by the Security Council, enlistments shall not be permitted in such numbers as to disrupt the economic life of the territory.”

Article 6

Comment.—It is suggested that it would be of considerable value to specify in greater detail the steps by which the inhabitants of the territory will accomplish their progressive development towards self-government or independence. Such provisions would take account of the great interest of peoples throughout the world in the procedures and techniques for the development of political expression and political institutions in non-self-governing areas. To this end, the following revision of Article 6 is suggested:

• “1. The Administering Authority shall foster the development of political institutions suited to the trust territory and shall promote the progressive development of the inhabitants of the trust territory towards self-government or independence in accordance with Article 76(b) of the Charter by:

  (a) providing for increasing participation of citizens of the trust territory in administrative and other governmental positions;

  (b) establishing advisory and legislative bodies on a local and a territory-wide basis in the trust territory, as may be appropriate to the particular circumstances of the territory and its peoples;

  (c) developing the use of popular election in the trust territory, with progressive widening of the franchise;

  (d) extending to all citizens of the trust territory eligibility to hold appointive and elective office; and

  (e) developing legislative, administrative, and budgetary autonomy for the trust territory.

• 2. At intervals not exceeding five years, beginning in 194—, the Trusteeship Council in consultation with the Administering Authority shall survey the development of the political institutions of the trust territory and the capacity for self-government achieved by its inhabitants, and shall report thereon to the General Assembly.
• 3. At such time as the General Assembly shall find that the inhabitants of the trust territory are ready for self-government it may make recommendations to the signatories as to the form which self-government shall take.”

Article 7

Comment.—With respect to the application of international conventions to the territories, it is believed that the approach followed in Article 9 of the Mandate for Tanganyika is to be preferred to the abbreviated form of Article 7 of the draft terms, with the addition of references to conventions dealing with labor and health.

Article 8

Comment.—It is suggested that consideration be given to the use of the expression “land and resources” rather than merely “land” throughout this Article in order to safeguard the transfer of not only land but also of the sub-surface resources.

It is further suggested that the expression used in the terms of mandate, “previous consent”, be retained in the second sentence of this Article.

It is also proposed tentatively that the guarantees of the terms of mandate relating to usury be maintained.

Article 8a (new)

Comment.—In the implementation of the objective of the trusteeship system “to promote the … economic … advancement of the inhabitants of the trust territories”, it seems desirable, as in the case of the objective to promote the political advancement of the inhabitants, to specify in some detail the steps which the Administering Authority should take in the achievement of this objective. It is recognized that the items which are included below in the suggested Article represent for the most part statements of programs or plans which are already in existence with respect to these territories. However, it is strongly urged that a valuable service may be performed through these first trusteeship agreements by the formalizing of high standards of administrative practice. With this object in view, the following detailed Article is proposed for inclusion in the terms of trusteeship:

“To promote the economic advancement of the inhabitants of the trust territory, the Administering Authority shall:

(a) regulate the development of natural resources, including the use of land and mineral resources, in accordance with sound conservation principles and for the benefit of all the inhabitants of the trust territory;

(b) encourage the development of efficient agriculture and industry, including diversification wherever desirable in the interests of the inhabitants;

(c) facilitate the access of the inhabitants to capital and technical assistance needed for economic development;

(d) assist the inhabitants, so far as feasible, to become qualified for and to obtain employment in all occupations, employments, and professions without discrimination;

(e) assist the inhabitants to participate in the world economy by permitting them to supply their needs from and to sell their produce in the most favorable markets;

(f) prevent the economic development of the trust territory from being distorted or retarded for the benefit of other peoples or territories;

(g) protect the inhabitants against the loss of their lands and ocupations;

(h) assist the inhabitants to become progressively free to manage their own economic affairs subject only to the requirements of a sound international economy; and

(i) institute such other regulations as may be necessary for the economic advancement of the inhabitants of the trust territory.”

Article 9

Comment.—It is believed that the insertion of the word “industrial” after the word “economic” in the introductory clause of the Article would serve a useful purpose in broadening the scope of these provisions on equal treatment. This terminology would follow the Mandates Agreements. The introductory clause should end with the word “nationals”. Paragraphs (a), (b), and (c) should be independent subsections.

In order to make it wholly clear that aviation rights are included within these commercial equality clauses, paragraph (a) of Article 9 should be amended by the insertion of the phrase “including freedom of transit and navigation by air” after the phrase “freedom of transit and navigation”.

Article 11

Comment.—The necessity of making a provision for protecting the interests of the inhabitants of the trust territory with respect to economic and commercial matters is fully appreciated and concurred in by the Government of the United States. It is believed, however, that the phrase “the application of a more advantageous regime” is not susceptible of precise definition. Moreover, under the commercial policy followed by the United States Government, while it is quite feasible to agree to most-favored-nation treatment for a trust territory, it would be most difficult for this Government to accept an undertaking by which its rights would depend upon a determination of whether a “more advantageous regime” existed in a trust territory for the United States and its nationals than was in existence in the United States for the trust territory and its nationals. The following provision is therefore suggested as a substitute for the present wording of this Article:

“Nothing in this agreement shall entitle any member of the United Nations to claim for itself or for its nationals, companies and associations the benefits of Article 9 of this agreement in any respect in which it does not give to the nationals, companies and associations of ________ equality of treatment with the nationals, companies, and associations of any other state.”

Article 11a (new)

Comment.—As an amplification of the objective stated in Article 76(b) “to promote the … social … advancement of the inhabitants of the trust territories,” it is suggested that the following detailed provisions might be inserted as a new Article in the terms of agreement. Again, in many cases these items represent policies already in effect with respect to Tanganyika, Togoland, and Cameroons:

“To promote the social advancement of the inhabitants of the trust territory, the Administering Authority shall:

(a) protect the rights and fundamental freedoms of all elements in the population without distinction as to race, sex, language, or religion;

(b) prohibit all forms of slavery and slave-trading;

(c) prohibit all forms of forced or compulsory labor except when necessary for essential public works and services as specifically authorized by the local administration, with adequate remuneration, with adequate protection of the welfare of the workers, and in accordance with the provisions of the Forced Labor Convention, 1930;

(d) promote the progressive elimination of recruiting of workers and the development of the spontaneous offer of labor in giving effect to the principles of the Elimination of Recruiting Recommendation, 1936;

(e) prohibit penal sanctions for breach of contract of employment;

(f) promote employment at adequate wages, improve working conditions, assure freedom of association and, where feasible, encourage collective bargaining and provide needed social insurance and social services;

(g) protect the health of the people through improvement of housing and sanitation, adequate provision for medical care, including insofar as feasible the development of an adequate health service and the provision of necessary hospitals, dispensaries and mobile medical units, the strict application of necessary quarantine regulations, and public education concerning hygiene and nutrition;

(h) control the traffic in arms and ammunition;

(i) regulate the traffic in opium and other dangerous drugs;

(j) regulate in the interest of the inhabitants the manufacture, importation, and distribution of alcohol and other spirituous beverages; and

(k) institute such other regulations as may be necessary to protect the inhabitants against social abuses.”

Article 11b (new)

Comment.—The following provisions are suggested as implementation of the basic objective of the trusteeship system to promote the educational advancement of inhabitants of trust territories:

“The Administering Authority shall continue and extend the general system of elementary education throughout the trust territory, designed to abolish illiteracy and to facilitate the vocational and cultural advancement of the population, child and adult. It shall provide such facilities as may prove necessary in the interests of the inhabitants for qualified students to receive higher education, including training on the professional level.”

Article 12

Comment.—Great significance is attached to the establishment of broad rights with respect to the exercise of religion, religious teaching, and the legitimate activities of missionaries. In this regard, the wording of Article 8 of the Mandate for Tanganyika seems preferable to the shorter form adopted in the draft terms. It is suggested, therefore, that the phraseology of this Article follow Article 8 of the Mandate for Tanganyika with the addition of references to freedom of religious teaching and the right of missionaries to open hospitals in the trust territory as well as schools. Appropriately revised, this Article would read as follows:

“The Administering Authority shall ensure in the trust territory complete freedom of conscience, freedom of religious teaching, and the free exercise of all forms of worship which are consonant with public order and morality. Missionaries who are nationals of States Members of the United Nations shall be free to enter the trust territory and to travel and reside therein, to acquire and possess property, to erect religious buildings and to open schools and hospitals throughout the territory; it being understood, however, that the Administering Authority shall have the right to exercise such control as may be necessary for the maintenance of public order and good government, and to take all measures required for such control.”

Article 12a (new)

Comment.—It is strongly urged that the following Article be inserted in the terms of agreement, since no where else in the trusteeship terms is there a direct statement of these fundamental democratic guarantees:

“Subject only to the requirements of public order, the Administering Authority shall guarantee to the inhabitants of the trust territory freedom of speech, of the press, of assembly, and of petition, freedom of migration and movement.”

Article 17 (new)

Comment.—In order to make clear the right of the Administering Authority to accept membership for the trust territory in appropriate regional and international associations of states, the following additional Article is believed to be desirable:

“The Administering Authority may, on behalf of the trust territory, accept membership in any regional advisory commission, regional authority, or technical organization, or other voluntary association of states, may cooperate with specialized international bodies, public or private, and may engage in other forms of international cooperation, not inconsistent with the Charter.”

Article 18 (new)

Comment.—The achievement of free interchange of information on an international basis is a purpose to which both the United Kingdom Government and the Government of the United States subscribe and toward the attainment of which both Governments continue to extend their efforts. It therefore seems appropriate to include in trusteeship agreements provisions which will facilitate such free interchange of information. The following additional Article is therefore proposed:

• “1. The Administering Authority shall adhere to the principle of free interchange of information. To this end, nationals, corporations, and associations of Members of the United Nations shall have the right throughout the trust territory to engage in such activities as writing, reporting, and gathering of information for public dissemination abroad, and shall enjoy freedom of transmission of material to be used abroad for publication and for the radio. Furthermore, the nationals, corporations, and associations of other Members of the United Nations shall enjoy freedom of publication in the trust territory, in accordance with the applicable laws and regulations, upon the same terms as nationals, corporations, or associations of the Administering Authority.
• 2. The term ‘information’, as used in this Article, shall include all forms of oral and written communications, printed matter, motion pictures, and photographs.”

50. Drafted in the Division of Dependent Area Affairs.
51. References are to texts that are printed in British Cmd. 6840 and 6863, particularly to Annex IV of the former, “Draft Terms of Trusteeship for Tanganyika”.