The Acting Secretary of State to the Chief of the Division of Dependent Area Affairs (Gerig)
My Dear Mr. Gerig: In undertaking conversations with representatives of the British Government, and possibly of the French and Belgian Governments with regard to the negotiation of trusteeship agreements for mandated territories in Africa, you should be guided by the instructions which follow.
- It is desirable that the Trusteeship Council be constituted at the September meeting of the General Assembly. This can be done if the mandatory powers, in response to the Resolution on Non-Self-Governing Peoples adopted by the General Assembly in February 1946, take the proper steps for submitting draft trusteeship agreements for their respective mandated territories and if, through the approval of these draft agreements by the General Assembly, a sufficient number of states are designated as administering authorities. (The Trusteeship Council, for example, might be constituted under Article 86 of the Charter with the United Kingdom, France, and Belgium as “Members which administer trust territories”, and with the United States, the Soviet Union, and China as “those which do not”, provided that trusteeship agreements can be brought into force for at least one mandated territory now administered by each of the former three states.) It is important, therefore, that you should assist in every possible way in facilitating the conclusion of these draft agreements, while safeguarding the American position on the “states directly concerned” and on the draft terms of trusteeship.
- The American position on the “states directly concerned”, as defined immediately below, is primarily designed to limit the exercise [Page 596] of the “veto” in this particular field of United Nations activity. Restriction of the “states directly concerned” to an absolute minimum, if possible to a single state, would thus eliminate one opportunity provided by the Charter for use of the “veto” by a Member which may wish unilaterally to block the proper development of the United Nations.
“States Directly Concerned”
- You should attempt to obtain acceptance for the position on the
“states directly concerned” which was stated as follows in the
Department’s note to the British Government (and, mutatis mutandis, to the French and Belgian Governments):
In transmitting these comments, the United States Government does so without reference to the determination of the phrase “states directly concerned”. The position of the United States in this respect remains what it has been for the past twenty-five years, namely, that it has special and specific rights under the Treaty of Versailles and as a party to certain bilaterial treaties, including treaties with the United Kingdom concerning the mandated territories. The United States believes that by virtue of this position it is entitled to be one of the “states directly concerned” in all mandated territories.
However, it is the view of this Government that in the interest of speeding up conclusion of trusteeship agreements it would be desirable to limit the number of negotiating states to a minimum, and in line with this principle it is felt that the most desirable procedure would be that the present mandatory powers should propose draft terms of trusteeship and that other particularly interested powers should be consulted in regard to these terms before they are actually submitted to the General Assembly for approval.
This procedure is proposed on the condition that the other interested powers agree to the principle of consultation as described above without pressing claims to be signatories to the terms of trusteeship for the African territories in question.
- You should explain that this formula is designed to facilitate the conclusion of trusteeship agreements by keeping the number of “states directly concerned” to a minimum. The Member which forwards a draft trusteeship agreement to the General Assembly for approval would inform the latter that it had consulted all the particularly interested powers on the terms of trusteeship and had taken their views into account. Such consultation would obviate the need for prolonged discussion and perhaps extensive revision of the terms of trusteeship by the General Assembly. If a definition of “particularly interested powers” which should be consulted is called for, it may be suggested that it might include (a) the states having special treaty rights, (b) all the remaining permanent members of the Security [Page 597] Council and (eventually) of the Trusteeship Council, and (c) any states in the region having special interests in the territory.
- You should make clear that in waiving its right to be a signatory to the initial draft terms, the United States is not necessarily waiving its rights with respect to any alterations and amendments which may subsequently be proposed under Article 79.
- In advocating this formula for consultation, you should point out that the “states directly concerned” in any mandated or other territories should, in any case, include those which have legal rights in the territory. You should maintain the principle that the United States, because of its treaty rights, is entitled to be a “state directly concerned” in all mandated territories, even though it is willing not to press its claim to be a signatory to the draft agreements for the mandated territories in Africa, provided that other states (except the mandatory power) do not do so. You need not attempt to obtain British and French concurrence in the claim of the United States to be a “state directly concerned” if you can persuade them to accept the procedure of consultation outlined in paragraphs 1 and 2 above.
- If geographic propinquity is advanced as a criterion, you should not accept any interpretation that this factor is necessarily a basis for determining the “states directly concerned”. It may be advisable, however, to consult with such states in regard to the terms of trusteeship, as stated in paragraph 2 above.
- If the British, French, or Belgians insist, with respect to the draft trusteeship agreements in which they are respectively interested, that states other than the mandatory power must be considered as “states directly concerned” and as signatories to the agreements, you should reserve your position and should immediately ask the Department for instructions. Should the British representative refer to Mr. Attlee’s statement in the House of Commons that the Union of South Africa is directly concerned in all the British mandates in Africa, it might be replied that all of the Union’s interests could be satisfied by being “consulted” as the United States now proposes.
- Should the question of the Japanese Mandated Islands arise you should refer to the statements made by the President on January 15, 1946 and by the Acting Secretary of State on January 22. You may state that it is your personal assumption that this Government intends to place these islands under trusteeship. You should further inform the British and French representatives that, with respect to the Japanese Mandated Islands and any other Japanese territories which the United States may administer under trusteeship, this Government prefers that the “states directly concerned” be kept to an absolute minimum. In fact, it would prefer to submit the draft agreements to [Page 598] the General Assembly or the Security Council as the sole “state directly concerned” after consultation with all interested states. In dealing with the draft agreements for mandated territories in Africa, moreover, you should bear in mind that every decision taken with regard to both the “states directly concerned” and the terms of trusteeship may set a precedent which may affect the trusteeship agreements for territories in the Pacific.
Comments on the Draft Agreements
In general, you should press for revision and expansion of the British and Belgian draft agreements in order to make adequate provision for the political, economic, social, and educational development of the people of the territories and for equal treatment in the territory for the Members of the United Nations and their nationals. The comments which were sent to the British and Belgians, together with the supplementary comments56 which are to be handed them informally, represent the maximum terms of trusteeship for these areas which this Government believes it possible to obtain under existing circumstances. In view of the voluntary character of the Charter, the terms of trusteeship must be satisfactory to the mandatory power which, under Article 79 of the Charter, is automatically a “state directly concerned”. While the revisions suggested to the British and Belgian Governments do not contain all the most desirable features that might be included in an ideal trusteeship agreement, they are probably the most that could be accepted by the mandatory powers.
It is the view of this Government that trusteeship agreements for the mandated territories should be as comprehensive as possible in order that they may serve as a general guide for the constitution or organic law of the territory. These trusteeship agreements should, so far as possible, supplement the bare outlines of the trusteeship system provided in the Charter and should contain specific provisions for fulfilling the objectives of the trusteeship system laid down in Article 76. The agreements, furthermore, should make clear the relationship of the administering authority to the United Nations and its principal organs.
Authority of the United Nations
It is highly important that, as proposed in a new Article 1(a) and in the revised Article 2,57 the authority of the United Nations with regard [Page 599] to each trust territory should be made perfectly clear in the trusteeship agreement. The agreement should be based upon the principle that all rights and titles are vested in the United Nations and that the United Nations itself acts as trustee for the inhabitants of the trust territory and that the administering authority serves as agent of the United Nations, exercising the rights and duties conferred upon it by the trusteeship agreements. Such provisions would remove many of the ambiguities which characterized the mandates system of the League of Nations, and would reflect a genuine spirit of “trusteeship”.
Fulfillment of Objectives of Trusteeship System
Each trusteeship agreement should, so far as possible, be organized to prescribe, seriatim and in detail, the general objectives of the trusteeship system laid down in Article 76 of the Charter:
- to further international peace and security;
- to promote the political, economic, social, and educational advancement of the inhabitants of the trust territory, and their progressive development towards self-government or independence;
- to encourage respect for human rights and for fundamental freedoms for all; and
- to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals.
Detailed provisions to supplement these general principles would have the following advantages: they would place the administering authority under definite obligation to fulfill these objectives; encourage the inhabitants of the territory to work for their own advancement in accordance with these principles; and provide criteria by which the General Assembly and the Trusteeship Council could supervise and review the work of the administering authority.
It is of particular interest to this Government that trusteeship agreements for African territories should make special provision for carrying out Article 76(c) with regard to encouraging respect for human rights and fundamental freedoms, including such matters as freedom of speech, freedom of assembly, and the right of petition. The agreements should also provide for complete freedom of conscience, worship, and religious teaching.
Equality of Treatment
This Government has a special interest in the proper fulfillment of Article 76 (d) relating to equal treatment in social, economic, and commercial matters for Members of the United Nations and their nationals. Similar provisions were included in the “A” and “B” [Page 600] mandates58 of the League of Nations at the insistence of the United States, but this Government was unable to incorporate the principle of equal treatment in the “C” mandates.
The trusteeship agreements should contain at least the provisions of the “B” mandates for equal treatment in social, economic, industrial, and commercial matters for all Members of the United Nations and their nationals. The trusteeship agreements should provide for equal treatment with respect to: freedom of transit and navigation, including freedom of transit and navigation by air; acquisition of property both movable and immovable; the protection of person and property; the exercise of professions and trades; the granting of concessions; and the administration of justice.
It is of special concern to this Government that these trusteeship agreements should provide for equal treatment of the missionary activities of nationals of all Members of United Nations. The principle of equal treatment is equally important in the field of freedom of information.
As the Charter affords only the barest outline of procedures for the supervision of trust territories by the United Nations, it is important that each trusteeship agreement make detailed provision for such supervision. Some of these procedural arrangements may ultimately be established by the Trusteeship Council in its Rules of Procedure. Until the Council adopts its Rules of Procedure, however, special provisions on these matters will be required in the trusteeship agreements along the lines suggested in the supplementary comments to be handed to the British and Belgian negotiators.
- For the “Supplementary Comments”, see Memorandum Prepared in the Division of Dependent Area Affairs, May 7, p. 586.↩
- See Memorandum accompanying note from the Acting Secretary of State to the British Ambassador, entitled “Comments on the Draft Terms. …” p. 579; see also “Supplementary Comments”, p. 586.↩
- The degree of control exercised by the mandatory power over the political and economic life of the mandated territory varied according to the degree of civilization attained by the dependent peoples involved. This distinction gave rise to the three types of mandates (“A” mandates: Areas provisionally recognized as independent, but temporarily being given advice and assistance until reaching full nationhood—Syria and Lebanon, Palestine and Transjordan, and Iraq; “B” mandates: Areas where it was not considered feasible to grant autonomy and where the Mandatory Power was responsible for the administration under certain specified conditions—the Middle African territories of the Cameroons, Togoland, Tanganyika, and Ruanda-Urundi; “C” mandates: Areas inhabited by peoples in only a primitive stage of civilized development and which were administered under the laws of the Mandatory Power as integral portions of its territory—South West Africa and certain islands in the Pacific Ocean area). See Whiteman, Digest, vol. i, pp. 598 ff.↩