Attached is a memorandum containing relevant provisions of the
Trusteeship Agreements approved by the Security Council (in the case
of the Pacific Islands) and the General Assembly (in the case of the
other Trust Territories) for the administration of UN Trust Territories which would appear
to allow Administering Authorities concerned to conduct nuclear
tests in Trust Territories in the interest of international peace
and security. This paper was prepared with a view to use in
justifying a possible United States contention that all
Administering Authorities would have such a right, in the event the
Indians broaden their threatened resolution calling for cessation of
nuclear tests in Trust Territories pending an opinion of the
International Court of Justice.
[Enclosure]
Legal Eight of Administering Authorities to
Conduct Nuclear Tests in Trust Territories Under Their
Jurisdiction
1
According to the provisions of the ten Trusteeship Agreements
approved by the General Assembly, as well as the one approved by
the SC, for the administration of
Trust Territories under the supervision of the United Nations,
it would appear that all Administering Authorities would be
within their legal rights to conduct nuclear tests in these
territories in order to contribute to the maintenance of
international peace and security. Provisions contained in all
the agreements, except that of Nauru, state that the
Administering Authorities shall be responsible for seeing that
the trust territories under their administration shall play
their part, in accordance with the Charter of the United
Nations, in the maintenance of international peace and
security.
Five of the Agreements (i.e. British Cameroons, British Togoland,
Tanganyika, Western Samoa, and the Pacific Islands) specifically
provide that the Administering Authority shall be entitled to
establish bases and to make use of “facilities and assistance”
from the Trust Territory concerned in carrying out obligations
to the Security Council undertaken by the Administering
Authority. Provisions of the Agreements incorporating these
provisions are as follows:
Trusteeship Agreements Approved by the
General Assembly for British Cameroons, British Togoland,
Tanganyika (Article 5 of Each Agreement—Official Record, 2nd
Part, 1st General Assembly, Supplement 5)
The Administering Authority shall be entitled “to establish
naval, military and air bases, to erect fortifications, to
station and employ its own forces in the Territory and to take
all such other measures as are in its opinion necessary for the
defence of the Territory and for ensuring that it plays its part
in the maintenance of international peace and security. To this
end, the Administering Authority may make use of volunteer
forces, facilities and assistance from
the Territory in carrying out the obligations towards the
Security Council undertaken in this regard by the Administering
Authority, as well as for local defence and the maintenance of
law and order within the Territory”.
Trusteeship Agreement Approved by the
Security Council for the Pacific Islands (Article 5)
“In discharging its obligations under Article 76(a) and Article 84 of the Charter, the
Administering Authority shall ensure that the Trust Territory
shall play its part, in accordance with the Charter of [Page 1520] 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 force, facilities and
assistance from the Trust Territory in carrying out the
obligations towards the Security Council undertaken in
this regard by the Administering Authority, as well as
for the local defence and the maintenance of law and
order within the Trust Territory”.
The Trusteeship Agreement for Western Samoa
(Article 10) provides that the Administering Authority shall be
entitled to:
(Paragraph 3) “to make use of volunteer forces,
facilities and assistance from the Trust Territory in
carrying out the obligations towards the Security
Council undertaken in this regard by the Administering
Authority, as well as for local defence and maintenance
of law and order within the Trust Territory”.
(Paragraph 4) “to take all such other measures in
accordance with the purposes and principles of the
Charter of the United Nations as are, in the opinion of
the Administering Authority, necessary for the
maintenance of international peace and security and the
defence of Western Samoa”.
By granting to the Administering Authority the right to make use
of facilities from the Trust Territories in carrying out
obligations to the Security Council, it may be argued from a
legal point of view that the United Nations has recognized the
right of the Administering Authorities to take such measures in
these territories as may be necessary to maintain international
peace and security, including the conducting of nuclear
tests.
In the case of Ruanda Urundi (Article 5 of the Agreement), French
Togoland (Article 4b), and French
Cameroons (Article 4b), the Administering
Authorities are authorized by Trusteeship Agreements to “take
all measures of organization and defence appropriate (within the
limits of the Charter) for ensuring …
- “(b) the respect for
obligations concerning the assistance and facilities
to be given by the Administering Authority to the
Security Council” and
- “(d) the defence of the
Territory within the framework of special agreements
for the maintenance of international peace and
security”.
These provisions, while not as explicit as those referred to
above, might under certain circumstances be held to provide a
legal basis for the conducting of nuclear experiments in these
Territories for the maintenance of international peace and
security.
The Trusteeship Agreement for New Guinea, by Article 4*makes the
Administering Authority “responsible for the peace, order, good
government and defence of the Territory and for this purpose”
gives to Australia “the same powers of legislation,
administration and jurisdiction in and over the Territory as if it were an integral part of
[Page 1521]
Australia, and will be entitled to apply
to the Territory, subject to such modifications as it deems
desirable, such laws of the Commonwealth of Australia as it
deems appropriate to the needs and conditions of the Territory”.
This article would therefore seem to permit Australia to conduct
such experiments, particularly since it is additionally
authorized by Article 7, “to take all measures in the territory
which it considers desirable to provide for the defence of the
Territory and for the maintenance of international peace and
security”.
By Article 4 of the Trusteeship Agreement for Nauru, the
Government of Australia is made “responsible for the peace,
order, good government and defence of the Territory and for this
purpose, in pursuance of an agreement made by the Governments of
Australia, New Zealand, and the United Kingdom, the Government
of Australia will on behalf of the Administering Authority and
except and until otherwise agreed by the Governments of
Australia, New Zealand and the UK
continue to exercise full powers of legislation, administration
and jurisdiction in and over the Territory”. By this article,
there would seem to be no legal restriction imposed on Australia
to test nuclear weapons in Nauru if it deemed to do so is in the
best interests of international peace and security.
According to the Trusteeship Agreement for Somaliland, Italy (by
Article 2) is made “responsible to the United Nations for the
peace, order, and good government of the Territory in accordance
with the terms of this Agreement”. By Article 6, Italy is
authorized to “maintain police forces and raise volunteer
contingents for the maintenance of peace and good order in the
Territory” and “after consultation with the
Advisory Council, may establish installations and take
all measures in the Territory, including the progressive
development of Somali defence forces, which may be necessary
within the limits laid down in the Charter of the United
Nations, for the defence of the Territory and for the
maintenance of international peace and security”.
These provisions of the Trusteeship Agreement for Somaliland, as
in the case of other Trusteeship Agreements, would appear to
permit the Administering Authority to conduct nuclear
experiments in Somaliland so long as they are being conducted
for the express purpose of maintaining international peace and
security.
