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

501.BB/11–746

Memorandum Prepared in the Division of Dependent Area Affairs⁵¹

secret

[Washington,] November 6, 1946.

Effects of the Conclusion of Trusteeship Agreements on United States Conventions With the Mandatory Powers

the problem

The strong possibility that the “B” Mandates in Africa as well as the mandated territory of Palestine may be placed under the trusteeship system of the United Nations suggests the need for a careful consideration of the future status of the conventions between the United States and the respective Mandatory Powers. In view of the fact that the United States Delegation to the forthcoming meeting of the General Assembly will probably be called upon to indicate approval or disapproval of draft terms of trusteeship for each of the “B” Mandates, decisions on the following questions should be reached by this Government prior to the opening of the General Assembly:

1. If terms of trusteeship for the “B” Mandates should be presented, as is now contemplated, to the General Assembly by the Mandatory Powers after consultation with the particularly interested states rather than as formal agreements to which the United States and other states directly concerned would be parties, and if the General Assembly should approve these terms, what would be the status of the conventions between the United States and the Mandatory Powers?

2. If the Delegation should vote for the approval of terms of trusteeship for a territory now covered by one of the United States conventions with the Mandatory Powers, would such an affirmative vote constitute the “assent” of the United States to modification of the terms of mandate within the meaning of the provision which is included in each of these conventions in the following sense:

“Nothing contained in the present convention shall be affected by any modification which may be made in the terms of the mandate, as recited above, unless such modification shall have been assented to by the United States”.

3. If the answer to Question 2 is in the affirmative, would this imply that the conventions with the Mandatory Powers would, in effect, be supplanted by the terms of trusteeship for the various trust territories?

4. Does it appear advisable to take specific steps to either continue in force the conventions with the Mandatory Powers or to terminate these conventions? If so, what procedures might be followed?

discussion

[Here follows detailed discussion of the problem with particular attention to the nature of American rights in the mandates and the effect of the replacement of the terms of the mandates by the terms of the proposed trusteeship agreements.]

The Assent Clause

As indicated above, if the United States Delegation to the General Assembly should vote for the approval of terms of trusteeship for a territory now covered by a convention with the Mandatory Power, such an affirmative vote would constitute the assent of the United States to modification of the terms of mandate within the meaning of the provision included in each one of these conventions. It is difficult to see how the United States could approve terms of trusteeship, and at the same time maintain that it was not assenting to a modification of the terms of mandate. It is believed that such an exercise of the assent clause is also valid in terms of our domestic constitutional law. The conventions do not specify how the assent is to be given. It may also be pointed out, that during the period of active operation of the mandates system, the United States acting through the Department of State on several occasions gave its assent to modifications of the terms of mandate. In international discussions involving the assent clause, the United States has never taken the position that the assent of the United States involved anything else than an expression of the Executive Branch. Moreover, by its consent to ratification of the Charter the Senate plainly endorsed the trusteeship system under which, by Article 77, it is expressly envisaged that the mandates may be placed. The Senate insisted on no reservations as to the mandates conventions and asserted no special prerogatives with respect to trusteeship agreements for the territories under mandate.⁵²

conclusions

1. If United States Delegation votes in favor of the terms of trusteeship for the “B” Mandates, the rights of the United States and its nationals will depend upon the terms of trusteeship rather than upon the terms of mandate as specified by the conventions with the Mandatory Powers.

2. If United States Delegation votes in favor of the terms of trusteeship, this will constitute the assent of the United States to modification of the terms of mandate.

3. If United States Delegation votes in favor of the terms of trusteeship, the conventions with the Mandatory Powers will, in effect, be supplemented [supplanted?] by the terms of trusteeship for the various trust territories.

4. If the United States Delegation votes against the terms of trusteeship and if the terms of trusteeship do not enter into force, the rights of the United States and its nationals under the conventions with the Mandatory Powers are continued.

5. If the United States Delegation votes against the terms of trusteeship and if the terms of trusteeship nevertheless enter into force, it would probably be legally impossible for the United States successfully to maintain that such of its previous rights under the conventions which are inconsistent with the terms of trusteeship are still in force. The United States would, of course, have all the rights under the trusteeship agreements of a Member of the United Nations.

recommendations

1. If the United States Delegation votes in favor of the terms of trusteeship for the “B” Mandates, no specific action to terminate the conventions with the Mandatory Powers seems necessary. It is unnecessary because, if the terms of trusteeship come into force, they will supplant the terms of mandate and the United States’ rights will be adjusted accordingly.

2. If the United States Delegation does not approve the terms of trusteeship for the “B” Mandates and if these terms do not go into force, no action with regard to the conventions is required. In such a circumstance, the rights of the United States and its nationals under the conventions would be retained.

3. If the United States Delegation votes against the terms of trusteeship and if these terms nevertheless enter into force, it would seem politically undesirable and probably legally impossible for the United States to seek to maintain such of its rights under the convention as may be inconsistent with the terms of trusteeship. The United States should accept a two-thirds vote of the General Assembly approving terms of trusteeship as binding and should regard its previous rights as having been adjusted accordingly. For the reason given under paragraph 1 above, it should not, however, take steps to terminate the conventions.

51. Drafted for use by the United States Delegation at the General Assembly. Approved by the Under Secretary of State (Acheson), the Counselor of the Department (Cohen) and the Legal Adviser (Fahy) (memorandum, Hiss to Fahy, November 7, not printed, 501.BB/11–746).
52. It may be noted that this discussion is without reference to the Japanese Mandated Islands. In December the Legal Adviser’s office began a detailed study as to what form of Congressional approval was required for the U.S. draft trusteeship agreement for the Japanese Mandated Islands or any Japanese islands that might be included in the strategic trust territory.