ODA files, lot 62 D 225, “Trust Territory of the Pacific Islands”
Memorandum by Bernard Fensterwald, Office of the Assistant Legal Adviser for United Nations Affairs, to Dwight M. Cramer of the Office of Dependent Area Affairs1
- Thermonuclear tests in Trust Territory of the Pacific Islands
You have requested the views of this Office on a number of questions that arise out of recent United States thermonuclear tests in the Pacific and that may be asked of the United States Representative on the United Nations Trusteeship Council at the forthcoming meeting of the Council in July.
Question 1. Is not the testing of such destructive devices incompatible with the obligations of the United States under the Trusteeship Agreement and the Charter?
Answer. The testing of such devices is not incompatible with the obligations of the United States under the Trusteeship Agreement and the Charter. On the contrary, it is entirely compatible.
Article 5 of the Trusteeship Agreement provides that “the administering authority shall ensure that the trust territory shall play its part, in accordance with the Charter of the United Nations, in the maintenance of international peace and security. To this end the administering authority shall be entitled:… (3) to make use of volunteer forces, facilities and assistance from the trust territory in carrying out the obligations toward the Security Council undertaken in this regard by the administering authority, as well as for the local defense and the maintenance of law and order within the trust territory.” This provision reproduces almost verbatim the duties of administering authorities which are specified in Article 84 of the Charter.
In all honesty and candor it can be stated that the tests have been undertaken by the United States as an integral part of its over-all program to strengthen itself to play a leading role in the maintenance of international peace and security. This role of the United States is an actual one, as typified by our enormous contributions in manpower and material to the collective United Nations action to repel aggression in Korea. We have been using certain facilities and assistance of the Trust Territory to strengthen our ability to carry out our obligations. We are specifically entitled to use such facilities and assistance [Page 1496] under Article 84 of the Charter and Article 5 of the Trusteeship Agreement.
Question 2. In view of the fact that the Administering Authority is not sovereign in the Trust Territory, by what legal right may the Administering Authority destroy portions of such territory?
Answer. The abstract problem of the possessor of the “sovereignty” of the territory has little or no bearing upon the question of the legal right of the governing authority to use public property for public purposes. This right depends not on sovereignty but on the authority to govern. For example, let us assume for purposes of argument that the administering authority of a trust territory under the United Nations possesses no “sovereign rights” over the territory. This notwithstanding, there is little doubt that the governing authority has the right to build a dam and hydroelectric plant and to “destroy” real property by flooding it. If this property is private property, the governing authority can legally acquire it by exercising its right of eminent domain … a right which is common to governments everywhere.
In the instant case the United States has used several small parts of atolls for public purposes. Whether or not such use resulted in the destruction of the property is irrelevant as long as the property was legally acquired and used for public purposes. It is suggested that UND make an accurate determination of the ownership prior to the tests of the land actually destroyed and that rendered uninhabitable, in order to relate to the Council what parts were public domain or under private or feudal ownership. In addition, all facts relating to compensation should be marshalled; these facts should include the manner in which partial compensation has been provided by the furnishing of new homes, supplies, etc.
Question 3. Does the Administering Authority feel that it is justified in experimenting in the Trust Territory with weapons which it cannot control with any certainty?
Answer. It is believed that this is primarily not a legal question. The question seems to be based on some assumptions which may be questionable.
Question 4. What authority does the United States have for closing large areas of the ocean for these tests?
Answer. The United States does not claim the right to close off areas of the high seas. However, there has been a long-standing practice by naval powers, which has been generally acquiesced in by other nations, of using areas of the high seas for military maneuvers and tests, provided suitable warnings are given to vessels of other states for the duration of the maneuvers or tests.
Use of the term “closed area” should be avoided except when referring to the islands, atolls and their territorial waters. The high [Page 1497] seas areas were “danger areas” or “warning areas” from which, ships or planes were warned away.
The permissibility of this practice in a particular instance depends, inter alia, upon the reasonableness of the location and size of the area closed, the period of time involved, and the effectiveness of the warnings given to vessels and aircraft using the area.
The reasonableness of the location and size of the area will naturally depend upon the type of maneuver or test being carried out. It is general practice to hold such maneuvers and tests in locations designed to create a minimum amount of interference with navigation and fishing. As modern warfare develops more destructive weapons, the test areas, of necessity, increase in size. The size of our test areas in the recent thermonuclear experiments were, if anything, too small rather than too large.
The reasonableness of the length of time of closure of the area will also depend upon the type of maneuver or test being carried out. In the case of a series of thermonuclear tests the period may be an extended one because, due to weather and other factors, the date of each explosion often must be delayed in order to provide the maximum safety both within and without the test area. In addition, the area may not be safe for a period after each explosion. The rule should probably be that warnings in regard to test areas on the high seas should not be for periods longer than are reasonably necessary for safety precautions.
Warnings given by the United States have been extensive. In addition to circular diplomatic notes communicated well in advance and broad public notice given through the press and other media, United States ships and planes have given warnings to all ships or planes of other states found in or near the affected areas, particularly at times when tests were imminent. Strenuous attempts have been made to keep the areas free of ships or planes whose safety might be endangered by entry.
It can be concluded that our designation of danger areas has been in accordance with international practice and the exigencies of thermonuclear experimentation.
Question 5(a). Did any notification include the United Nations?
Answer. A search of the files of DC/R by a member of L/UNA revealed no such notification in the pre-1950 tests. However, notification may have been made to the Trusteeship Council. We have no information concerning post-1950 tests.
Question 5(b). Was any kind of United Nations approval deemed necessary, sought, or obtained?
Answer. There is nothing in the United Nations Charter or the Trusteeship Agreement which would require approval by any United Nations organ. No approval was sought or obtained. As to the use of [Page 1498] the islands and their territorial waters, Article 1 of the Agreement designates the whole of the trust territory as a “strategic area”; and Article 13, which provides that the provisions of Articles 87 and 88 of the Charter shall be applicable, states that the administering authority “may determine the extent of their applicability to any areas which may from time to time be specified by it as closed for security reasons.” (Underscoring added)
Question 5(c). Presuming there is a right to close large danger areas of this kind, does this right include the right to contaminate international waters and marine life?
Answer. No categorical answer to this question should be made. It is suggested that any U.S. spokesman confine himself to the following three points:
- The high seas and the marine life are common property of all states and no one state has the right to contaminate them indiscriminately with impunity. However, regarding the theoretical legal question of state liability for contamination of the high seas, it should be pointed out that this is a field of the law which has never been developed or explored to any great degree. In particular, there are very few, if any, real analogies to contamination resulting from thermonuclear experimentation. International lawyers will have to give careful study to the problems involved before any firm conclusions can be reached.
- From a factual standpoint very little is known as to the extent of contamination caused by thermonuclear tests. We know very little about the immediate effects upon marine life, the length of time that harmful characteristics may last, etc. Studies of these aspects are being undertaken and will have to be completed before it will be possible to reach any firm conclusions concerning liability.
- In the meantime, all claims will be given sympathetic and speedy attention, and the United States will make compensation for damages resulting from thermonuclear tests where the facts warrant it.
It is requested that all position papers, draft speeches, etc. on this subject be sent to L for comment and clearance. It is also suggested that someone from L be sent to New York to advise our delegate on the Trusteeship Council on these matters when they are under active discussion.
- On June 17, 1954 a copy of this memorandum was forwarded by the Director, Office of the Dependent Area Affairs (Gerig) to William C. Strand, Director, Office of Territories, Department of the Interior, with the suggestion that it be transmitted to the High Commissioner of the Trust Territory (Midkiff), and inviting comments from both Strand and Midkiff. (ODA files, lot 62 D 225, “Trust Territory of Pacific Islands”)↩