PART III
DOCUMENTS SUBMITTED TO THE COURT
AFTER THE CLOSURE OF THE
WRITTEN PROCEEDINGS
(Rules of Court, Article 98)
TROISIÈME PARTIE
DOCUMENTS PRÉSENTÉS A
LA COUR APRÈS LA FIN DE LA
PROCÉDURE ÉCRITE
(Règlement, article 98)
0 0
Note:
See also the Second Part, Oral Arguments (Vols. VIII-XII), and the Fourth
Part, Correspondence (infra).
Voir égalementDeuxième partie, Plaidoiries (Vol. VIII-XII), et Quatrième
partie, Correspondance (ci-après). I. DOCUMENTS FILED BY THE AGENT FOR THE
GOVERNMENT OF SOUTH AFRICA 1
Original: English PCJTCJn
4 December 1945·
' PREPAHATORY COMMISSION OF THE UNITED NATIONS
UNITED STATES DELEGATI0:-1:
Proposcd amendment to Part III, Chapter IV, Section 2, paragraph 4.
concerning functions of the Temporary Trusteeship Committee.
1. The Report by the Executive Committee makes no provision for
any organ of the United Nations to carry out the functions of the
Permanent Mandates Commission. In Part III, Chapter IX, dealing with
the League of Nations there occurs the following statement: "Since
the questions arising from the winding up of the Mandates system are
dealt with in Part III, Chapter IV, no recommendation on this subject
is included here" (Section 3, para. s.p. no). No specifie reference to
the functions of the Permanent :VIandates Commission is to be found,
however, in Part III, Chaptcr IV, rclating to the trustccship system.
Section 2, paragraph 4 of that Chapter (p. 56) merely assigns to the
Temporary Trusteeship Committee a general advisory function in this
field: "(iv) advise the General Assembly on any matt ers that might
arise with regard to the transfer to the United Nations of any functions
and responsibilities hitherto exercised under the Mandates system."
2. In order to provide a degree of continuity between the mandates
system and the trusteeship system, to permit the mandatory powers to
discharge their obligations, and to further the transfer of mandated tcr
ritories to trustecship, the Temporary Trustecship Committee (or such
a committee as is established to perform its functions) and, later, the
Trustceship Council shoulcl be specifically empowered to receive the
reports which the mandatory powers are now obligated to make to the
Permanent flfandates Commission. The existing obligations and rights
of the parties involved under the mandates system with respect to any
mandatcd territory continue in force until such territory is placed under
trusteeship by an individual trusteeship agreement or until sorne other
international arrangement is made. To bridge any possible gap which
might exist between the termination of the mandates system and the
establishment of the trusteeshlp system, it would appear appropriate
that the supervisory functions of the Permanent Mandates Commission
should be carried on temporarily by the organ of the United Nations
which is to hamllc trusteeship matters.
3- In order, thcrcfore, that the report of the Preparatory Commission
may be complete in this respect the following amcndment is proposed.
1
Sec IX,pp.40r IL and Part IV, No. 9p. 580, infra.456 SOUTH WEST AFRICA
4· Amendment
Adda new subparagraph (v} to paragraph 4 of Part III, Chapter IV,
Section 2, to be worded as follows: .
"(v) undertake, following the dissolution of the League of Nations
and of the Permanent Mandates Commission, to receive and examine
reports submitted by Mandatory Powers with respect to such ter
ritoriesunder mandate as have not been placed under the trusteeship
system by means of trusteeship agreements, and until such time as
the Trusteeship Council is established, whereupon the Coûncil will
perform a similar function."Original: English PC/TC/30
8 December 1945.
PREPARA TORY COMMISSION OF THE UNITED NATIONS
COMMITTEE 4
Speech by the Delegate for
the United States of America
at the
Ninth Meeting, 8 December 1945.
Mr. Chainnan, I am very grateful indeed to the Delegate of Yugoslavia
for his explanation of the Resolution, document No. 6. I was not at ali
clear in my own mind asto the exact relationship between this Resolution
and his original paper, which was a more general outline of principles. I
should like primarily to address myself to the text of the Resolution, but
secondarily to sorne of the remarks and explanations which he made of
that text, as far as I could take those explanations down in my notes.
My Delegation, as indicated in the paper which we submitted as a
revision of the original paper submitted by the Yugoslav Delegation, is
quite willing to accept the Yugoslav proposais as a basis for establishing
the trusteeship system with the modifications which we îndicated in the
revision which we made. I hope the Yugoslav Delegation did not abject to
the lîberties which we took in changing sorne of the details in his paper.
My Delegation stiH feels that there is nothing objectionabie whatever in
the Report of the Executive Committee proposing the establishment of a
Temporary Trusteeship Committee; it stîll seems to us that that is a
perfectly constitutional method of procedure and a perfectly practical
method of procedure, and we are willing to agree to that proposai if we
cannot agree on any alternative; but we are quite willing to explore any
other alternative arrangement and are quite willing, as I indicated, to
accept the proposais of the Yugos1av Delegation on the ]ines which I
have indicated.
May I turn, then, to the text of the Resolution which the Yugoslav
Delegation has so kindly explained to us. In the first paragraph I wonder
whether he would consider one modification, since he mentions only one
of the four objectives of the trusteeship system. Article 76 of the Charter
lists four objectives, and it would not seem tome to be quite proper to
pick out only one. the second one, which speaks of the economie, political
and social advancement of the people, and omit reference to the other
three. 1should not think there would be any great objection to adding the
other three objectives.
In the second paragraph of the Yugoslav Resolution reference is made
to Chapter XI of the Charter, which is quite different and in effect bas
nothing to do with the trusteeship system itself. The Resolution says that
further delay prevents the principles declared in Chapter XI from being
implemented. If I understand Chapter XI correctly, no deJay in the
trusteeship system would affect in any way the obligations which the
States administering other territories-colonial territories-have under458 SOUTH WEST AFRICA
Chapter XL Therefore 1 would suggest deletion of that reference in the
second paragraph.
Mr. Chairman. in the third paragraph 1 have sorne reservations about
the exact language. Our paper which we submitted based upon the first
paper of the Yugoslav Delegation took that language verbatim, but 1 am
not quite sure that it gives the correct impression. It is perhaps true from
a practical point of view to say that it is casier to deal with the mandated
territories at this time than with terri tories detached from enemv States
or terri tory voluntarily contributed to the system; but 1 do not think
there is any legal distinction between categories (a). (b) and (c) in
Article 77: they are of an equal legal status. None of them have to be
placed under the trusteeship system: any one of them may be, according
to the Charter; and legally there is no more reason for the mandated
territories to come first than therc is for the territories detached from the
enemy States. 1t is purely a practical problem. In the case of the detached
territories, as the Delegate of the Soviet Union said in his opening speech
on this question, they are tied up with the question of peace treaties, and
therefore do not offcr an opportunity for immediate discussion as in the
case of the others.
In the fourth paragraph at the bottom of the page of the Yugoslav
Dclegation's proposai, 1 wonder if there might be sorne modification in
the language. The paragraph as it now stands seems to imply that the
mandatory powers have sorne specüd responsibility for delay and post
ponement under Article 8o. If you read Article 8o carefully, you will see
that the mandated terri tories are mentioned along with other terri tories.
The second paragraph of Article 8o. to which this paragraph of the
Yugoslav Resolution relates, specifies that nothing in the preceding
paragraph shaH be interpreted as giving grounds for delay or post
ponement of the negotiation and conclusion of agreements for plating
mandated and other terri tories und er the trusteeship system. It seems to
me to be not quite fair to the mandatory powers to pick out only those
territories, when ArticleSo mentions both, and it would need only slight
revision to accord with paragraph 2 of Article So.
Tuming to the other side of the page of the Yugoslav Resolution, 1
have two comments to make on the text of the Resolution itself. The
Resolution proposed by the Yugoslav Delegation begins as follows:
"The General Assembly of the United Nations calls on the States ad
ministering terri tories in accordance withthe League of Nations Mandates
to undertake practical steps", etc. 1 wonder if it might not accord more
closely with the language of the Charter if we used the phrase in the
Charter: "... calls upon the States directly concemed in mandated ter
ritories, including the manda tory power ... ". That is the language of the
Charter, which implies, if 1 understand it correctly, that the mandatory
power is an obvious State concerned, but there may be others. Therefore
1 suggest, as the first point in our revision of the original Yugoslav paper
states, that the General Assembly would call upon the States directly
concerned, including the mandatory power, to take these steps. That is,
anyone, without trying to define which ones are concerned: any which are
conccrned, including the mandatory power; shaH take these steps.
At the end of the Resolution, at the bottom of this last paragraph, it is
proposed that the Assembly invite the States concerned, or, as it now
reads, the States administering territories, "to submit these agreements
for approval during the second part of the first session of the General As- DOCUMENTS FfLED BY SOUTH AFRICA 459
sembly". I think the purpose is admirable. I merely wish to enter a
caveat on practical grounds. There may be difficulties on technical ·
grounds. I am sure the States concerned, including the mandatory pow
ers, are acting in perfectly good faith and share the determination of all
of us to get the trusteeship system established as soon as possible. 1 do
not want to underscore thesc difficulties: I merciy point out that there is
only a matter of three or four months before the General Assembly
might adjourn from its first session, or whatever its scheduJe may be.
That is not much time for a determination to be reached by diplomatie
negotiation asto which are the States concerned in individual territories,
for those States to prepare their own plans and proposais, to draft agree
ments, for them to negotiate the agreements and for the General As
sembly to consider those agreements. The General Assembly will have
other business on its agenda. AUof us here are serving Governments and
aJJ of us know how much time it takcs for any Government to get deci
sions reached and to negotiate proposais upon the basis of those deci
sions.So much for the text of the Resolution.
1 should like to make one or two comments on the explanation which
the Yugoslav Delegate made for us of his paper, if 1 understand him
corrcctly. I was gratified to hear him say that he would not undertake in
this Resolution a definition or determination as to which are the States
direct! y concerned other than the manda tory power, which is specified in
the Charter. It is the opinion of my Ddegation, as indicated in the
revision which wc made of the original paper submitted by the Dclegate
of Yugoslavia, that it would not be proper for the Preparatory Com
mission or for the General Assembly to undertake such a definition. The
Charter specifies the States directly concerned, including the mandat ory
power in the case of mandated tcrritories. I do not think it would be
proper to go behind that definition or statement. It is for the States
concerned themselves to determine that. The General Assemblv on be
half of the Organization. or the Security Council in the case of agree
ments dealing with strategie areas, has its opportunity to rule upon this
determination of the States concerncd when the agreements are submit
ted. If the General Assembly finds that an agreement which is submitted
by States A. Band C, omits State D which the General Assembly in its
judgment thinks should be included, it can refuse to approve the agree
ment. I am obliged to the Yugoslav Delegate for revising his original
paper. 1 am not sure, however, that I quite understand his proposai that
the permanent rnembers of the Trusteeship Council and the manclatory
powers should gct together and begin work on these agreements. If 1
understand him correctly, that would imply a definition of the States
c ;ncerned by this body. That might be a beneficiai procedure, but I
woulcl not like to sec it in the text of the Resolution, and I assume it will
not be there, if this is the paper which he is proposing.
There is one other point on which I have sorne doubts. That was the
position he took on the basic conditions for the establishment of the
Trusteeship Cmtncil. 1 am neither a mathematician nor a lawyer, for
tunatcly· or unfortunately; soI am not sure that 1can give you adefinition
asto what those conditions are. The Delegate from Yugoslavia seerned to
assume that it was a question of territories, that if one territory were
placcd under trusteeship, then there would be the need for a Trusteeship
Council to supervise that terri tory: you have a trust territ ory; thercfore,
you nced somebody to look after it and to check up on the administering SOUTH WEST AFRICA
authority in exercising all the functions listed in the Charter. On the
other hand, the Charter specifically says that there must be a balance
within the Trusteeship Council between the States administering and the
States not administering trust territories. Those who drafted the Charter
at San Francisco were very clear on this point, that in the interests of
impartiality and in the interests of an efficient working of the system
there should be a balance between those administering territories and
those which are not administering territories, and the General Assembly
is called upon to elect any number of States that may be necessary to
achieve that balance. That in my mind is a serious constitutional objec
tion to the proposai, as I understood it, from the Yugoslav Delegate
that one State administering a trust terri tory would be enough.
I do not want to enter into these details, but let us just take a hypo
thetical case. Suppose for example, that my neighbour here, the United
Kingdom, placed one of its mandated territories under trusteeship. This
is what President Roosevelt used to cali an "iffy" question: it is only
hypothetical. There you have the United Kingdom as one of the five
permanent members of the Trusteeship Council and four other permanent
members not administering trust territory. That ta my mind is not the
balance which the Charter envisages--one against four. I am quite willing
to leave this determination to the lawyers and I hope they will help
clarify these things, but it seems tome that the proposai as lunderstood
it does raise sorne constitutional difficulties.
In conclusion, because of these constitutional difficulties, I would like
to ask the Delegate from Yugoslavia as to what happens if, for the
technical reasons I mention, we do not have sufficient trusteeship
agreements approved by the General Assembly by the end of its first ses
sion. That in my mind has always been the crucial issue. We will attempt
to get those agreements signed, but suppose they are not, for purely
technical reasons and because of the difficulties 1have mentioned, who
exercises these functions; who carries out the principles of the Charter in
the absence of a Trusteeship Council? Suppose that 1am correct and the
Yugoslav Delegate unfortunately is incorrect in his statement of the
conditions for establishing the Trusteeship Council, suppose you want
more than one trust territory, suppose you need three or four-whatever
the lawyers advise us is the proper number, you might have aU but one
agreement concluded before the General Assembly. What then? Who
looks after the territories which have been subm1tted to trusteeship?
That was the advantage of the original Temporary Trusteeship Com
mittee in the Executive Committee Report. That would have been the
advantage of the "ad hoc" committee which the Yugoslav original
paper proposed, if it were authorized, as our revised paper proposes, to be
empowered to carry on after the session of the first Assembly, if you do
not get a sufficient number of agreements. I merely raise that question
because I think it is a serious one if my interpretation of the basic
conditions for the establishment of the Council are correct. II. DOCUMENTS FILED BY THE AGENT FOR THE GOVERN
MENTS OF ETHIOPIA AND LIBERIA 1
JO ]une rg65.
MEMORANDUM REGARDING EVIDENCE INTRODUCED BY RESPOI\DENT
DURING THE ORAL PROCEEDINGS OF 24 MAY 1965
During the Course of the oral proceedings on 24 May rg65, Respondent
introduced United Nations Preparatory Commission Documents Nos.
PC/TC/n and PC/TC/Jo.
The essence of Respondent's arguments with respect thereto lies in
the significance sought to be attributed to the introduction of a proposed
United States amendrnent (PC{TC/n) to the Report of the Executive
Committee of the Preparatory Commission relating to the duties of the
proposed Temporary Trusteeship Committee and to the fact that such
amendment was not thereafter considered or debated. The inference
(gratuitously and erroneously) drawn by Respondent from this circum
stance appears to be that the amendment was abandoned for lack of
support or that, in sorne other manner, the incident is relevant to the
issue of survival of obligations of international accountability of man
dates notwithstanding dissolution of the League of Natlons. (IX, pp.
401-40J.)
The Applicants have made a careful review of the relevant proceedings
and, on the basis thereof, respectfully submithe following findings and
conclusions:
I. Findings
(a) The United States Delegation to Committee 4 of the Prepara tory
Commission submitted two proposais on 4 December 1945. One was the
proposai in Document PCfTCfn (adduced by Respondent). The other,
not referred to by Respondent, was the suggested modification of a
Yugoslav proposai for an Ad Hoc Committee, pending formation of the
Trusteeship Council. The Yugoslav proposai, in turn, was a suggested
modification of the Executive Committee's recommendation for a
Temporary Trusteeship Committee. The second United States proposai,
aforesaid, is appended as Annex A; the original Executive Committee
recommendation for a Temporary Trusteeship Committee is appended as
Annex B; the Yugoslav proposai is appended as Annex C. (PC/TCfro,
PC/EX/nJ/Rev. r, and PCJTC/4. respectively.)
(b) At the Ninth Meeting of Committee 4 of the Prepara tory Commis
sion, held on 8 December 1945 (not ro December, as erroneously stated
by Respondcnt) procedures were suggested and agreed upon, as follows:
"J. Continuation of discussion of section 2, chapter IV of the
Report, and of PC(TC(3, PC(TC(6, PC/TC/8. PC{TCfro, PC/TCfrr,
PCJTC/24 and PCjTC/25.
1
See Part IV, No. rot, p. 587 infra. SOUTH WEST AFRICA
"The Secretariat proposcd that the discussion of the various
documents should be divided into thrce parts:
"(r) The terms of resolution to be recommended to the General
Assembly. This discussion would take place on the basis of the
Yugoslav proposai (PCfTC/6). but would also take into account the
relevant parts of the United States and United Kingdom proposais
(PCfTCjw and PCfTCJzs).
(2) The question whether there should be any ad hoc committee,
ànd if so, what should be its composition and functions. This dis
cussion would take place on the basis of the Belgian proposai
(PC/TC/24). but would aiso take into account the Philippine pro
posai (PC/TC)S) and the relevant parts of the Yugoslav, United
States, and United Kingdom proposais (PC/TC/3, PCJTCfro, and
PCJTC/25).
(3} The United States proposai for providing a degree of con
tinuity between the Mandates system and the trusteeship system
(PC/TCfn)."
(Summary Record; PC/TC/JI, pp. 1-2; Appended hereto as
Annex D.} •
(c) During the course of the meeting, the United States Delegate
made the statement in PC/TC/JO (the second document introduced by
Respondent on 24 May rg6s}. As is evident, from the agreed agenda,
described above, as weil as from the substance of the statement itself,
the discussion was Iimited to part (r} of the agenda and related only to
Documents PC/TC/6 and PCjTC/25 (see para. (b), supra).
(d) The next Meeting of Committee 4 of the Prepara tory Commission
was held on 10 December 1945 (Summary Record is appended hereto as
Annex E}. The discussion moved forward into consideration of part (2)
of the agreed agenda, viz., Documents PCjTCfro, PCjTC/24, and PC/
TC/25. Document PC/TC/IO, appended as Annex A hereto, was the
Yugoslav proposai. The Summary Record of the Tenth Meeting shows
.that the Representative of China suggested an alternative to the Execu
tive Committee proposa! for a Temporary Trusteeship Committee as
well asto the Yugoslav Proposai of an ad hoc committee, as follows:
"He thcrefore urged that use should be made of the main trustee
ship committee of the General Assembiy, thus lcaving the question
of a temporary or ad hoc committee for the General Assembiy itsclf
to decide. If this plan could be adoptcd, it wou1d answer ali ques
tions." (AnnexE; p. 4.)
He likewise suggested that a subcommittee be appointed by Com
mittee 4 "to consider the various proposais on this question and recom
mend to the full Committee a new dra ft based on these proposais."
n~J . .
(e) The Committee accepted the Chinese proposai, and a subcom
mittee was appointed accordingiy. Consequently, neither at the Ninth
nor Tenth .Meeting of Committee 4 was part (3) of the agreed agenda
reached. Consideration of the United States amendment relating to the
duties of the Tcmporary Trusteeship Committee clearly was irrelevant in
any event, inasmuch as consideration of establishment of the proposed
Temporary Trusteeship Committee itself had been deferred. DOCUMENTS FILED BY ETHiûPIA A:"<D LIBERIA
(/) At the Fifteenth Meeting of Committee 4, the Chairman of the
subcommittee reported that it "had come to the conclusion that no
recommendation should be made for the creation of any temporary
organ". (Document PCJTC/42, first page; appended hereto as Annex F.)
The recommendation of the subcommittec took the form of a Trusteeship
Draft Resolution for the General Assembly (Document PCjTCJ4r, ap
pended hereto as Annex G). Committee 4 adopted the report of the sub
committee (Document PCfTCf4r) by 28 votes to none. On the last page
of Document PC/TC/42 (Annex F hereto), the following decision is
recorded:
"... the recommendation contained in PCJTC/4I takes the place,
in the report to the Preparatory Commission, of sections 2, 3, 4
and 6 of chapter IV of the Report by the Executive Committee.
Section r of chapter IV of the Report by the Executive Committce
Iikewise disappears, and the report by Committee 4 to the Pre
paratory Commission consists solely of the text of PCJTC/4I and the
text of PCjTC/34/Rev. r."
(g) The United States proposcd amendment to Section 2 of Chapt er IV
of the Report by the Executive Committee, contained in Document
PC/TC/n (introduced by Respondent on 24 May 1965) thus had lost
any rclevance whatever.
11. Conclusion
The United States proposai (Document PCJTCJn) was not reached in
the course of discussions at the Ninth Meeting of Committee 4· No
significance whatever is attributable to the fact that the United States
Representative made no reference to it then or thereafter, except that
it became irrelevant by reason of the procedure adopted by the Com
mittee. AnnexA
Original: English
PCJTCfw
4 December 1945.
PREPARATORY CoMMISSION OF THE UNITED NATIONS
COMMITTEE 4:
TRUSTEESHIP COUNCIL
DELEGATION OF THE UNITED STATES
SUGGESTION FOR THE FORMATION OF A TRUSTEESHIP COUNCIL BASED
UPON THE PROPOSAL OF THE DELEGATION OF YUGOSLAVIA (PC/TC/J)
The difficulties mentioned by the Executive Committee in Section 2,
paragraph 2, of its Report couid be overcome in the spirit of the Charter
without the formation of a temporary Trusteeship Committee.
Of the three categories of territories mentioned in Article 77 of the
Charter, the territories under Band C remain uncertain. Only the terri-
tories under A (mandated territories) are certain. ·
The Preparatory Commission could recommend that the First Part of
the First Session ofthe General Assembly should: (r) invite the manda tory
powers, who are members of the United Nations Organization, to submit
declarations of their willingness to enter into negotiations for placing the
territories over which they have so far been acting as administering
authorities under the trusteeship system of the Charter; (2) recommend
that the States directly concemed in each mandated territory, including
the manda tory power, should proceed immediat ely to negotiate a trustee
ship agreement for each such territory and submit the agreement to the
General Assembly for approval before the end of the first session or, in
the case of strategie areas, to the Security Council for approval; (3)
create an ad hoc committee or authorize its Trusteeship Committee to
crea te an ad hoc sub-committee, to exercise the fonctions listed in Chap
ter IV, Section 2, paragraph 4 of the Report, and to be composed as
indicated in paragraph s. except for the following revision of item (ii):
(ii) the Members, other than those mentioned by name in Article 23,
which are at present administering mandated territories and which
have declared their intention promptly to enter into negotiations for
placing any such territories under trusteeship;,
and (4) empower this Ad Hoc Committee or sub-committee to remain in
existence and exercise its fonctions between sessions of the General
Assembly if for any reason a sufficient number of trusteeship agreements
have not been conduded to permit the establishment of the Trusteeship
Council bv the end of the first session of the General Assembly.
In the ineantime on the basis of the above recommendation and in their
desire toseUle this problem as soon as possible the present mandatory
powers would prepare ail that may be necessary in order to be able to
respond to the invitation of the General Assembly as soon as it is made.
These declarations could in this wav be discussed during the First Part
of the First Session of the General Àssembly. DOCUMENTS FILED BY ETHIOPIA AND LIBERIA 465
From that moment until the Second Part of the First Session, the
States directly concerned could conclude trusteeship agreements. If these
agreements covered strategical areas, they should be submitted for ap
proval to the Security Council, but if these agreements covered only
non-strategical areas,they could be submitted to the General Assembly
during the Second Part of the First Session. An ad lwc committee of the
General Assembly, or an ad hoc sub-committee of the Trusteeship Com
mittee of the General Assembly, to examine these declarations of the
present mandatory powers could useful1y be formed.
After the Security Council or the General Assembly had approved the
agreements a Trusteeship Council could then be forrned. Annex B
CHAPTER IV: THE TRUSTEESHIP SYSTEM
Section I: Recomrnendation concerning the Establishment of the
Trusteeship System
The Executive Committee 1,
Considering that in accordance with Article 86 of the Charter the
Trusteeship Council cannat be formed until a number of territories shall
first have been placed under trusteeship; and
Considering that it is neverthe!ess desirable that sorne interim organ
should be established to assist the General Assembly in expediting the
constitution of the trusteeship system and, pending the establishment of
the Trusteeship Council, in taking such other action in connection with
the trusteeship system as may be found necessary;
Recommends:
I. that there be established, in accordance with Article 22 of the
Charter, a Temporary Trustecship Committee, the formation, com
position, functions and duration of which are elaborated in Section 2;
2. that the Preparatory Commission adopt for presentation to the
Temporary Trusteeship Committee, and for adoption at the latter's
discretion, the Provisional Agenda and· Provisional Rules of Pro
cedure which are found in Sections 3 and 4, respective! y;
3· that, with a view to assisting the Temporary Trusteeship Com
mittee in its work, the Preparatory Commission also approve the
proposais contained in Sections 5 and 6, concerning:
(a) Rules of Procedure for the Trusteeship Council; and
{b) a recommendation to the General Assembly for the establish
ment of the Trusteeship Council, as soon as the necessary conditions
have been fulfilled 2•
Section 2: Report on Interim Arrangements Required Pending the
Establishment of the Trusteeship Council
The Terms of the United Nations Charter
r. The composition of the Trusteeship Council is governed by para
graph r of Article 86 of the United Nations Charter, which reads as
follows:
"r. The Trusteeship Council shaH consist of the following Meru
bers of the United Nations:
1 The Czechoslovak, Soviet and Yugoslav Delegations made objection to the
proposai for the establishment of the Temporary Trusteeship Committee on the
grounds that such action is not authorizeby the Charter and would be unconstitu
tional.
2 Additional material for the considerationof the Temporary Trusteeship Com
mittee will be found in the Appendicesto Part III, ChapterIV. DOCU~ŒNTS FILED BY ETHIOPIA A!':D LIBEHIA
(a) those l'vlembersadministering trust territories;
(b) such of those l\lembers mentioned by name in Article 23 as
are not administering trust terri tories;
(c) as many other l\lembers elected for three-year terms by the
General Assembly as may be neccssary to cnsure that the total
number of members of the Trusteeship Council is equally divided
between those ~Icmbc rfsthe United Nations which adrninister
trust terri tories and those which do not."
Question of application
2. Half the members of the Council will be those l\lcmbers of the
United Nations which administer trust territories.The term "trust
territories" means such territories as may, by subsequent individual
agreement, be placed under the International Trusteeship System (Ar
ticles75 and 77). At present, t.herefore, there arc no trust territories, nor
will there be any until trusteeship agreements for individual territories
have been approved by the General Assembly, or, in the case of strategie
areas, by the Security Council (Articles 83 and 85). Consequently, there
are at present no l\1embers of the United Nations administering trust
terri tories: and, therefore, a Trusteeship Council composed as laid dawn
in Article 86 of the Charter cannot yet be formed. Sorne means of re
solving this difficulty must be found, and the Committee submîts the
following recommendations.
Proposal for a Temporary Trusteeship Committee
J. The Committee recommends that the General Assembly, acting
under Article 22 of the Charter, creatc a temporary subsidiary organ to
carry out certain of the functions assigned in the Charter to the Trustee
ship Council. pending its establishment.
4· This Temporary Trustceship Committee would, inter alia, perform
the following functions:
(i) assist the United Nations in expediting the conclusion of
trustceship agreements by the States directly concerned, and the
coming into operation of the Trusteeship System provided for in
Chapters XII and XIII of the Charter;
(ii) assist and advise the General Assembly in the discharge of any
of its functions with regard to proposed non-strategie areas, in
cluding the approval of trusteeship agreements;
(iii) assist the Secur1ty Council in such matters as the Security
Council might wish to refer to the Temporary Trusteeship Com
mittee in relation to matters mentioned in Article 83 (3);
(iv) advise the General Assembly on any matters that might
arisewith regard to the transfer to the United Nations of any
functions and responsibilities hitherto exercised under the l\1andates
System.
Composition of the Temporary Trusteeship Committee
s. The Commit tee recommends that the Temporary Trusteeship Com
mittee be composed as follows: SOUTH WEST AFRICA
(i) The five States mentioned by name in Article 23;
(ii)the Member States other than those mentioned by name in
Article 23, which are at present administering Mandated Territories
(Australia, Belgium, New Zealand and the Union of South Africa);
(iii} any other States to which may be allocated the administra-
tion of territories detached from enemy States as a result of the
Second World War, v;ith a view to their becoming trust territories;
(iv) as many other members, to be elected by the General As
sembly, as are necessary to secure equality between administering
and non-administering members. (Itis suggested that a recommenda
tion be made to the Assembly that the Netherlands be elected on
account of ber long experience in the admirùstration of dependent
territories.)
Duration of the Temporary Trusteeship Committee
6. The Committee recommends that the tenure of the Temporary
Trusteeship Committee should cease when, through the conclusion of a
sufficient number of trusteeship agreements, the conditions in Article 86
have been fulfilled.
Section 3: Provisional Agenda for the Temporary Trusteeship Committee
I. Selection of a temporary Chairman in accordance with English
alphabetical arder of States represented.
2. Adoption of temporary Rules of Procedure governing selection of a
Chairman and other Officers.
3- Adoption of the Agenda.
4· Selection of a Chairman and other Officers.
5- Adoption of Rules of Procedure.
6. Recommendat.ion to the Secretary-General on the staff required by
the Temporary Trusteeship Committee.
7- Consideration, at the request of the General Assembly or of the
Security Council, of any trusteeship agreements submitted ta the United
Nations for approval.
8. Recommendations to the General Assembly as to the steps to be
taken to expedite in the spirit of Article 8o, paragraphs I and 2, the
initiation and preparation of trusteeship agreements in accordance with
the provisions of Articles 75, 77 and 79. with a view to the early con
cluswn of trusteeship agreements for submission to the United Nations
for approval.
9· Problems arising from the transfer of functions in respect of
ex1sting mandates from the League of Nations to the United Nations.
ro. Special problems which will arise if the United Nations itself is
designated as an administering authority.
II. Preliminary discussion of the following matters for eventual
decision by the Trusteeship Council:
(a) Rules of Procedure for the Trusteeship Council, with special
reference to:
(i) arrangements for the examina tion of reports;
(ii)arrangements for the examination of petitions;
(iii}the method of communicating observations to the General
Assembly (or the Security Council) and to the administering
authority. DOCUMENTS FILED BY ETHIOPIA AND LIBERIA 469
(b) the questionnaire to form the basis of annual reports;
(c) arrangements for visits to trust territories;
(d) procedure for obtaining the assistance of the Economie and
Social Council and of the specialized agencies.
12. Formulation of a dra ft Agenda for the first meeting of the Trustee
ship Council.
13. Recommendation to the General Assembly for the establishment
of the Trusteeship Council as soon as the necessary conditions have been
fultilled.
14. Consideration of other items.
Section 4: Provisional Rules of Procedure for the Temporary Trusteeship
Committee
(Items 2 and 5 of the Provisional Agenda, Section 3)
Considering Articles 83, 85, 86, 87, 88 and 91 of the Charter, the
Temporary Trusteeship Committee adopts the following Rules of Pro
cedure:
Rule x. Sessions
The Temporary Trusteeship Committee shall meet at the seat of the
United Nations for as many sessions and at such times as may be found
necessary. The date and thêduration of such sessions shall be determined
in such a way asto facilitate the work of the United Nations.
Rule 2.Ofjicers
The Temporary Trusteeship Cornmittee shall elect, at the beginning of
each session, aChairman and a Vice-Chairman. The Chairman and Vice
Chairrnan shall hold office until the corresponding elections take place
at the beginning of the following session. These elections shall be con
ducted by the method of secret ballot.
In the absence of the Chairman, the Vice-Chairman shall take his
place.
Rule J.Secretariat
The Secretary-General of the United Nations shall act in that capacity
for the Temporary Trusteeship Comrnittee; he may authorize a deputy to
act on his behalf.
Rule 4· Languages
The rules regarding the use of languages shaH be the same as those
adopted by the General Assembly for its own use.
Rule s.Technical Experts
The Temporary Trusteeship Committee may seek the advice of in
dividual technical experts, or establish commissions of technical experts,
to act in an advisory capacity. These experts shall be selected by the
Committee for their special knowledge and experience.
Rule 6. Agenda
The provisional Agenda for any session shaH be drawn up by the
Secretary-General in consultation with the Chairman of the Coromittee
and shall be comrounicated to the members together with the notice con-470 SOUTH WEST AFRICA
vening the Committee. The first item on the provisional Agenda shall be
the adoption of the Agenda. Normally no new item shall be considered
until four days after its inclusion in the Agenda.
Rule 7.Quorum
At any meeting, the representatives of two-thirds of the mcmbcrs
shall constitute a quorum.
Rule 8. Voting
Ail decisions or recommendations of the Temporary Trustecship Com
mittee shall be made by a majority of the representatives present and
voting.
If equal numbers of votes are cast for and against any proposai, a
second vote shall be taken at the next meeting. If this also results in
equality the proposai shall be regardcd as lost.
A statement of minority views may be appended to a report or recom
mendation of the Committee at the request of any member.
Rule 9· Publicity of Meetings
The Committee shall determine in each instance, in accordance with
the nature of the Agenda, whether the meeting shall be private or open
to the public. At the close of each private meeting, the Committee shall
issue a communique through the Secretary-General. AU meetings of
sub-committees and of commissions of technical experts shaH be held in
priva tc.
Rule IO. Records
The verbatim records of the meetings, after being approved by the
Committee, shall he preserved and made public as and when the Com
mittee decides.
Copies of records relating to non-strategie areas shaH be communicated
to the General Assembly, and those relating to strategie areas ta the
Security Council.
Rule II. Interim Po·Œers
In so far as the Temporary Trusteeship Commîttee undertakes the
functions ofthe Trusteeship Council, it shall make use of such rules of
procedure, concerningthe formulation of questionnaires, the examinàtion
of reports from administering authorities, the examination of petitions,
arrangements for visits to trust territories, and the methocl of communi
cating observations to the General Assembly (or the Security Council)
and the administering authori1y, as it shall have prepared for submission
to the Trusteeship Council . The Committee shall perform such other
functions as may be providcd for in the trusteeship agreements or as may
be assigned to it by the General Assembly or the Security Council,
including the expedition and consideration of draft trusteeship agree
ments and the preparation of recommendations thereon for submission
to the General Assembly or the Security Council.
Rule IZ. Relations with Otlzer Bodies
The Committee shall, when appropria te, avall itself ofthe assistance of
the Economie and Social Council, of the specialized agencies, and of any
1 Cf. Item11 in the Pro,·isional Agenda, Part III, Chapter IV, Section 3 (p. 56). DOCUI\Œ!'ITS FILED BY ETHIOPIA AND LIBERIA 471
regional bodies which may be separa tel yestablished, in regard to matters
with which they may respectively be concerned. lt shall invite represen
tatives of these bodies, when appropriate, to attend the meetings of the
Committee.
Rule 13. Amendments
These Rules of Procedure may be modified by the Committee. Nor
mally a vote shall not be taken until four days after the proposai for
modification has been submitted.
Section 5: Provisional Rules of Procedure for the Trusteeship Council
1. SESSIONS
Rule I
The Trusteeship Council shall meet in regular session at least once a
year. The regular session shall be convened by the Council in time to
permit the subrnission of the annual report ofthe Council to the General
Assembly at !east fifteen days before the regular annual session of the
General Assembly.
Rule 2
Special sessions may be held as and where occasion may require, by
decision of the Trusteeship Councii or at the request of a majority of its
members. A request for a special session may be made by any member
of the Council and shall be addressed to the Secretary-Genèral of the
United Nations, who shall communicate the request to the other meru
bers of the Council. On notiftcation by the Secretary-General that a
majority of the members have concurred, the President shall request the
Secretary-General to cali a special session.
Rule 3
Each session shall be held at the seat of the United Nations unless in
pursuance of a previous decision of the Council, or of a majority of its
members, another place is designated.
Rule 4
The President of the Trusteeship Council shall fix the date of the first
meeting of a special session and shall notify the members through the
Secretary-Gcneral at !east thirty days in advance of the date of such
session.
II. AGENDA
Rule 5
A provisional Agenda for every session shall be drawn up by the
Secretary-General in consultation with the President and shall be com
municated to the members together with the notice convening the
Trusteeship Council.
Rule 6
The provision al Agenda shall includc:472 SOUTH WEST AFRICA
(a) ali items proposed by the Trusteeship Council at a previous
meeting;
(b) all items proposed by any Member of the United Nations;
(c) ali items proposed by the General Assembly, the Security
Council, the Economie and Social Council, or by a specialized
agency; and
(d} ali items or reports which the President or the Secretary
General deem necessary to put before the Council.
Rule7
The first item on the provisional Agenda ofany meeting of the Trustee
ship Council shall be the adoption of the Agenda. Annex C
Supplement No. 4-PCjTC/4
COMMITTEE 4: TRUSTEESHIP
Summary Record of Meetings
No. 3
Saturday, I December 1945
THIRD MEETING
Held on Friday, 30 November 1945. at 2.30 p.m.
Chairman: Mr. Guillermo Belt {Cuba)
Continuation of Discussion of Section 2, Chapter IV of the Report
The Chairman opened the meeting by inviting the Delegates who
objected to this Section of the Report by the Executive Committee to
submit alternative proposals.
Mr. Franic {Yugoslavia), after sorne introductory remarks, read the
statement which has since been circulated as document PC/TC/3- (See
below.)
Mr. Franic (Yugoslavia) explained that the definition of the "States
directly concerned" contained in the above statement was founded on
Articles 79 and 86 of the Charter.
Mr. Karnebeek (Netherlands) asked that the Yugosiav proposai be
distributed in written form in arder that the other Delegations might
give it their fullest consideration.
The Chairman agreed that the Yugoslav proposai should be distributed
in written form, as requested.
Mr. Kiselev {Byelorussian S.S.R.) stated that, in his opinion, it was
unwise to create a temporary organ. Calling the attention of the Delegates
to the objectives mentioned in Article 76, he said that every speaker had
expressed the wish that the trusteeship system should be brought to life
as soon as possible and he urged that the mandatory powers should
start the process.
The creation of the Temporary Trusteeship Committee would not
solve, but hamper, the solution of the basic :problem: there was no time
limit for this temporary organ. His delegatiOn was in complete agree
ment with the Government of the Soviet Union conceming the question
of the legality and constitutional basis of the Temporary Trusteeshlp
Committee.
Mr. Riaz (Egypt) agreed that from the legal standpoint Mr. Gromyko's
view that the Temporary Trusteeship Committee was unconstitutional
was absolutely right. Even those who supported the idea of the Tem
porary Trusteeship Committee did not consider that it was entirely
satisfactory; they declared that they were prepared to adopt a better
method if proposed. It was dangerous to improvize and to make addi
tions to the Charter, unless this was an absolute necessity for practical
reasons. After a careful study of the merits of the proposai, he was con- SOUTH WEST AFRICA
474
vinced that the Temporary Trusteeship Committee was not desirable.
The Trusteeship Council could be established as saon as one or two or
more trusteeship agreements had been concluded.
Tuming to the United States memorandum of 27 September, in con
sideration of the question of "States directly concemed", he found that
no definition was made in that memorandum. He asked what there
would be for the Temporary Trusteeship Committee to do if therc were
no agreements.
The best plan was that draft trusteeship agreements in respect of
existing mandates should forthwith be referred to the General Assembly
for approval. The Trusteeship Council could then be brought into exis
tence. The United Nations were in an extremely favourabJe position to
achicve this end, since the first part of the First Session of the General
Assembly would meet in January and the second in April-July, so that
they would have four months to study such draft agreements.
In this connection, reference was made to·the provision for a Trustee
ship Committee in Committce 1 on the General Assembly. He thought
that this Committee could be empowered by the General Assembly to
consider draft trusteeship agreements with the assistance of a subcorn
mittee set up expressly for this purpose whose composition would bear
close resemblance to that of the Trusteeship Councîl as laid down in the
Charter.
Mr. Poynton (United Kingdom) expressed appreciation of the proposai
put forward by the Delegate for Yugoslavia and recalled that Mr.
Creech-Jones had declared on the previous day that the United Kingdom
was not wedded to any particular method and would be glad to consider
other proposais. He would not go into a detaiJed discussion of the
Yugoslav proposai for the time being, but he asked to have time for a
close study of their plan which was to be circulated in written form.
He did not agree with the contention that the Temporary Trusteeship
Committee was necessarily unconstitutional; he would not, however, go
into the argument. There was sorne misunderstanding of the contention
that there was a gap in the Charter. The problem was briefty that, on the
one hand, no State could administer trust territories until trusteeship
agreements had been approved, while, on the other hand, as the General
Assembly had to have the advice of a Trusteeship Council, no trust .
agreements could be approved until there was a Trusteeship CounciL If
the Yugoslav proposai were suitable, the United Kingdom would give it
serious consideration.
On the point, raised by the Delegate for Egypt, that the mandatory
powers should come forward with trusteeship agreements, Mr. Poynton
asked what authority would deal with them, whether the General As
sembly would do so with or without advice. Draft agreements should be
examined by the most skilled bodies in the first place. The Temporary
Trusteeship Committee was recommended as such a body and would be
more akin to the Trusteeship Council than an ad hoc committee of the
General Assembly. That was a point, however, to be considered further.
Mr. Lapez (Philippine Commonwealth) urged the importance of main
taining respect for the Charter and confidence in it. It should be protected
and guarded against any attempt to read into it anything which the
framers of the document did not have in their rninds. He saw in the plan
for the Temporary Trusteeship Committee an attempt to make use of
Article22 to read a new intention into the Charter and Mr. Gromyko DOCUMENTS F!LED BY ETHIOPIA A:-<D LIBERIA 475
had given admirable expression to the hopes of the subject peoples.
Mr. Green (United States of America) agreed with the Delegate for the
United Kingdom that it would be difficult to make detailed comment on
the Yugoslav proposai as early as tomorrow. He was, however, grateful
to the Yugoslav Delegate for introdudng this novel plan to solve the
legal dilemma.
He did not think that the Temporary Trusteeship Committee was, in
f<\Ct,unconstitutional because there was unquestionably a gap in the
Charter. The Recommendation for the Temporary Trusteeship Com
mittee in the Report could still be used as a basis for discussion.
Mr. Riaz (Egypt) feared that he might have been misunderstood by
the Delegate for the United Kingdom. Quoting Article 85, he said that
the power of reviewing trusteeship agreements rested with the General
Assembly which could act without the Trusteeship Council. .Moreover,
the Charter provided that the representatives on the Trusteeship Council
should be chosen by the States Members, and there was nothing to
prevent them from nominating the same persons to represent them on an
ad hoc subcommittee. This committee would then be as expert as the
Trusteeship Council itself. If there were any doubt as to the legality of
the Temporary Trusteeship Committee, it should be abandoned.
1vlrOrts (Belgium) stated that, since the decisions to be made would
have far-reaching influence, the Delegates should be given sufficient time
to study the matter.
The Committee decided to postpone further discussion of this issue
until after the weekend. It was pointed out, however, that it would be
possible meanwhile to discuss section 5 of Chapter IV, and it was agreed
to hold the meeting scheduled for Saturday, 1 December, at 5 p.m.
The meeting rose at 4·45 p.m.
DELEGATION OF YUGOSLAV!A:
SUGGEST!O:-< FOR THE FORMAT!0:-1 OF A TRUSTEESHIP COU~CIL
The difficulties mentioned by the Executive Committee in section 2,
paragraph 2,of its report could. be overcome in the spirit of the Charter
without the formation of a temporary Trusteeship Committee, which in
the opinion of this Delegation would be an unconstitutional organ.
Of the three categories of territories mentioned in Article 77 of the
Charter, the territories under B and C remain uncertain. Onlv the terri-
tories under A (mandatcd territories) are certain. ·
This Delegation is of the opinion that a necessary step would he the
adoption by the Preparatory Commission of a recommendation to the
First Part of the First Session of the General Assembly to invite the
mandatory powers, who are members of the United Nations Organization,
to submit declarations of their willingness to put the territories over
which they have so far bcen acting as administering authorities uhder the
trusteeship system of the Charter, and at the same time to make known
which powers they consider as States directly concerned with these
territories.In the meantime on the basis of the above recommendation
and in their desire to settle this problem as saon as possible the present SOUTH WEST AFRICA
mandatory powers would prepare ail that may be necessary in order to
be able to respond to the invitation of the General Assembly as soon as it
is made. These declarations could in this way be discussed during the
first part of the first session of the General Assembly and during this
discussion opinions could be exchanged and agreement reached on the
exact definition of the term "States directly concemed". The Yugoslav
Delegation is of the opinion that in the fust place the respective man·
datory power (Article 79) and the powers mentioned by name (Article 23
in connection with Article 86) as well as perhaps the neighbouring
powers should be the States directly concemed.
From that moment until the second part of the first session, the States
directly concemed could conclude trusteeship agreements. If these
agreements covered strategical areas, they should be submitted for
approval to the Security Council, but if these agreements covered only
non-strategical areas, they could be submitted to the General Assembly
during the second part of the first session. An ad hoc committee of the
General Assembly to examine these declarations of the present manda
tory powers could usefully be formed.
After the Security Council or the General Assembly bad approved the
agreements a Trusteeship Council could then be formed. The need for a
Temporary Trusteeship Committee would thus be elimin~ted.
If the mandatory powers could at the same time subrrut drafts of the
trusteeship agreements for the territories concerned, these couid perhaps
also be discussed during the first part of the first session of the General
Assembly. This would be very desirable in the interest of the speedy
solution of thisimportant problem as it would permit of the agreements
being concluded during the first part of the first session ready for sub
mission to the Security Council or the General Assembly for approval,
so that at this stage the Trusteeship Council could already be formed. Annex D
Supplement No. 4· PCfTC/3I
CûMMlTTEE 4= TRUSTEESHIP
Summary Record of Meetings
No. 9
Monday, ro December 1945
NINTH MEETING
Held on Saturday, 8 December, 1945, at 10.30 a.m.
Chairman: Mr. Guillermo Belt (Cuba)
r. Continuation of discussion of section 5, chapter IV, of the Report by
the Executive Committee.
The Chairman opened the meeting by asking the Delegates to consider
two remaining amendments for the Provisional Rules of Procedure, and
thus to conclude the discussion of section 5, chapter IV, of the Report.
Decision: The Syrian amendment (PC/TC/17). which it was suggested
should be considered in connection with Rule 6, was adopted without
amendment.
The Committee then turned to consider the Syrian amendment to
Rule 30 (PCJTCjrS). Mr. Green (United States of America) pointed out
that the word "educational" which was the word used in Article 88 of the
Charter, had been replaced by the word "cultural" in the Syrian amend
ment. Mr. Zeineddine {Syria) explained that the word "cultural" had
been used as having a wider meaning than the word "educational".
However, he agreed to use the word "educational" as it was thought to
be doser to the language of the Charter.
Decision: Subject to this change of wording, the Syrian amendment to
Rule 30 was adopted.
2. Appointment of a Drafting Subcommittee.
The Committee agreed that a Drafting Subcommittee should be formed
to prepare and present to the full Committee a revised text of the
Provisional Rules of Procedure for the Trusteeship Council, and that it
should be composed of the Delegates for Australia, Belgium, Canada,
Nicaragua, Syria, Ukrainian Soviet Socialist Republic and Yugoslavia.
3- Continuation of discussion of section 2, chapter IV, of the Report, and
of PC/TC/3. PCfTCJ6, PC/TC/8, PCfTCfro, PCJTCfn, PCfTC/24 and
PC{TCj25.
The Secretariat proposed that: the discussion ofthese varions documents
should be divided into three parts: SOUTH WEST AFIUCA
{r) The terms of resolution to be recommended to the General Assemblv.
This discussion would take place on the basis of the Yugoslav pro
posai (PCJTCJ6),but would also take into account the relevant parts
of the United States and United Kingdom proposais (PCfTCfio
and PCjTC/25).
{2) The question whether there should be any ad hoc committee, and if
so, what should be its composition and functions. This discussion
would take place on the basis of the Belgian proposai (PC(I'Cj24), but
woulcl also take into account the Philippine proposai (PC/TC/8) and
the relevant parts of the Yugoslav, United States and United King
dom proposais (PCJTC/3.PCJTCjiO, and PCJTC/zs).
(3) The United States proposai for providing a degree of continuity
between the Mandates system and the trusteeship system (PCJTCfn).
Mr. Franic (Yugoslavia) (the full text of his speech has been cir
culated as PCJTC{zg).made a statement in explanation of the proposai
contained in PCJTCf6. He drew attention to the omission of provision
for a declaration by the existing mandat ory powers; he did not abject
to its inclusion, but the practical steps to which his proposai referred
were more essential. Another omission was the definition of the "States
directly concernee!". This phrase would have to be defined in relation to
each territory separately, and therefore there was no value in an abstract
definition.
In the case of each mandate clterrit ory, the States direct! y concerned
would include the mandatory power and the States mentioned by name in
Article 23 of the Charter. These powers should immediately enter into
direct negotiations, in the course of which they might decide to invite
other States to take part.
Moreover. any other Member of the United Nations claiming to be
directly concernee! could ask to be allowed to participate in the negotia
tions. The resulting trusteeship agreement would be submitted to the
General Assembly, or to the Security Council, according to whether the
States directly concerned had or had not des1gnated the territory in
question as a strategie arca.
It should therefore be possible for the mandatory pQ\.vers, without
waiting for a resolution of the General Assembly, to enter into contact
with the States mentioned by name in Article 23 ofthe Charter. \Vith the
good-will of ail the interested parties, the Trusteeship Council could be
formed without any delay. This Delegation could not agree that any
temporary organ was necessary.
Turning to the question of the fulfilment of the conditions for the
creation of the Trusteeship Council, he considered that this could be clone
as soon as one trusteeship agreement had been concluded.
The balance provided for in Article 86 of the Charter was not a con
dition for the existence of the Trusteeship Council, but simply a measure
according to which the composition of the Trusteeship Council would be
determinee! when it reached its full development. He could not con
template a situation in which there was any territory under the trustee
ship system without the supervision of the competent body of the
United Nations.
The views of the Delegate for Yugoslavia were supported by the
Delegate for Czechoslovakia.
lvfr. Green(United States of America) (the text of his speech has been DOCUMENTS FILED BY ETHIOPIA AND LIBERIA 479
circulated as PCfTC/30) expressed the willingness of his Delegation to
accept the Yugoslav proposai with certain modifications. At the same
timc, he could not admit that the proposai for a Temporary Trusteeship
Committee had been unconstitutional or impractical.
He suggestcd that the first paragraph of the Yugoslav proposai
(PCfTC/6) should be amended in such a way asto mention ali four of the
objectives stated in Article 76 of the Charter instcad of on!y one of them.
In paragraph 2,the reference to chapter Xl of the Charter should be
deleted, since no delay in the establishment of the trusteeship system
could in any way affect the obligations arising from chapter XI.
\Vith respect to paragraph 3, he felt that the language there used gave
an incorrect impression that there was sorne legal differentiation be
tween category (a) and categories (b) and (c) of territories referred to in
Article 77 of the Charter.
The language of paragraph 4 might also be revised to avoid the im
plication that the mandatory powers had sorne special responsibility for
delay.
In. the text of the resolution itself in PCfTCf6, he suggested two
changes:
r. In lines 1 and 2, the substitution for the present language of "calls
upon the States directly concerned in mandated territories including
the manda tory power to undertake";
2. The substitution of less rigid language for "the second part of the
First Session of the General Asscmbly" at the end of the draft resolu
tion.
He was gratificd that the Delegate for Yugoslavia had not incorporated
in his dra ft a definition of the "States directly concerned". lt would not
be propcr for either the Preparatory Commission or the General As
sembly to undertake such a definition. This must be for the States
directly concerned to determine themselves, although the General
Assembly or the Security Council would have an opportunity to give a
ruling upon thcir decisions when the trusteeship agreements were sub
mittcd.
He questioned the Yugoslav position on the interpretation of Article 86
of the Charter. Those who drafted it at San Francisco had made it very
clear that the balance between administering and non-administering
States was an essential element in the constitution of the Trusteeship
Council.
He would like to ask the Yugoslav Delegate what would happen if
in fact there were not enough tmsteeship agreements for this balance to
be established on conclusion of the First Session of the General Assembly,
and who would look after such territories as had been placed under the
trustecship system in the absence of the Trusteeship Council.
In response to the request of certain Delegates, it was agreed that the
speeches of the Delegates for Yugoslavia and the United States of
America should be circulatcd before the next meeting.
On the proposai to adjourn the meeting, severa! points of order were
raised.
Mr. Saba (Egypt) explained that his Yiews had not been accurately
represented in the United I<ingdom proposai (PCfTCfzs). 1t was not the
view of the Egyptian Delegation that an ad hoccommittee of the General
Assembly should necessarily be composed in conformity with the pro- SOUTH WEST AFRICA
posals made by the Executive Committee. They wished the General
Assembly to have fullfreedom in this matter.
Mr. Lopez (Philippine Commonwealth) wished to record his opinion
that the General Assembly bad no authority whatsoever to initiate
trusteeship agreements. The authority of the General Assembly authority
was limited to non-strategie areas, and the decision as to which tem
tories should be designated as strategie areas rested, in his view, with
the Security Council.
The meeting rose at I2.50 p.m. AnnexE
Co:.rMITTEE 4:TRUSTEESHIP
Summary Record of Meetings
No. ro
Wednesday, 12 December 1945
TENTH MEETING
Held on Monday, 10 Dccembcr 1945, at ro a.m.
Chairman: Mr. Guillermo Belt (Cuba)
Continuation of discussion of section 2,chapter IV, of the Report by the
Executive Committee
Mr. Ponsot (France) made a statement of the French point of view on
the whole problem before the Committee.
Referring to the questions contained in section 2, chapter IV, he said
that the juridical basis for setting up the trusteeship system was to be
found in Articles ro, r6 and 24 and 86. The General Assembly had
authority to take all necessary action for bringing the trusteeship system
into existence. The General Assembly had also the power to create the
necessary subsidiary organs. It was not indispensable to ha\'e the
Trusteeship Council.
Of the three categories of territories mentioned in Article 77, there was
no ground for distinguishing the mandates from the other two categories
or for devising a special regime forthe mandates. The text of the resolu
tion to be recommended to the General Asscmbly should therefore relate
to ali three kinds of territories. It was desirable that territories detached
from the enemy States should come under the trusteeship system as soon
as possible.
The Trusteeship Council would be a common instrument of the General
Assembly and the Security Couneil. Therefore it was necessary from the
outset for the two organs to act in collaboration.
He then proceeded to read the text of a resolution suggested by his
Delegation, and expressed the hope that the text might serve as the
basis of a working document.
Sir V. T. Krishnamachari (India} called attention to the fact that the
Committee was already in substantial agreement on two points: that the
existing mandatory powers should be asked to express their readiness
to place the mandated territoriesunder trusteeship, and that they
should be invited to prepare tcrms of trusteeship agreements. He did not
think that the General Assembly was itself competent to receive the
draft agreements. The most expedient way would be to set up an ad hoc
committee to deal with these draft agreements.
The agreements would consist of three parts: (r) essential features of
the trusteeship system, (z) provision for similar treatment for mandates
falling in each different class, and (3) special provisions for individual
trust territories. Then the problem of selecting strategie areas would
await the approval of the Security Council. The quickest way to make the SOUTH WEST AFRICA
necessary preparations would be the creation of an ad hoc committee.
It was essential to preserve the balance of administering and non
administering States in the composition of the ad hoc committee.
The Preparatory Commission should therefore ask the General As
sembly to set up the ad hoc committee at the same time as it invited the
mandatory powers to express their rcadiness and prepare tenns of agree
ment. This Delegation thought that the recommendation of the Executive
Committee was well within the provisions of the Charter, but would
welcome agreement along the !ines of the papers circulated.
Mr. Creech-]ones (United Kingdom) endorsed the views of the Delegate
for India. He was prepared to take up the Yugoslav proposai as the
basis for discussion, but stressed that it should not be taken to mean
that the recommendation of the Executive Committee was uncon
stitutional. He would not agree that the mandatory powers were respon
sible for causing any delay; the United Kingdom was most anxious for
the carly establishment of the trusteeship system.
He would hke to repudiate the innuendo toward the end of the nrst
page of the Yugoslav proposai; he would like that innuendo to be
removed from the proposai. In fact, the intention of the United Kingdom
was already made clear in recent statements by its Foreign Secretary.
He was in full agreement with the criticisms and the modifications of
the Yugoslav proposai, made by the United States Delegation, and he
hoped that the Yugoslav Delegation would accept these modifications.
Mr. Orts (Belgium} stated that the Belgian proposai (PC{TC{24}was
presented with a view to facilitating a solution. They had taken the
Yugoslav proposai into account. The chief merit of the Belgian proposai
was that it would lead to a specdy application of the Charter, since it
would allow of the Trusteeship Council being established \VÎthout delay,
according to the desire expressed in the Charter, without having recourse
to the creation of one or other provisional body, the desirability or
legality of which was, rightly or wrongly, opened to discussion. Belgium
would be prepared to submit agreements if invited to do so by the
General Assembly. If it were not possible to accept this proposai by
Belgium, his Delegation would be prepared to considera proposai on the
lines suggested by the United States of America and the United Kingdom
(PC{TCfro and PC/TC/zs.)
Mr. Wilson (New Zealand) pointed out that previously the New
Zealand Delegation had reserved their position on the question. His
Delegation was now ready to take part in the discussion on the basis of
the Yugoslav proposai, while supporting the amendments suggested by
the United States of America and the United Kingdom. The Trusteeship
Council could be set up, upon receiving a sufficient number of declara
tions of readiness to place territories under trusteeship, and he hesitated
to agree that a temporary committee of any kind was necessary.
Mr. Orts (Belgium). referring to the difficulty of keeping a too rigid
time-table, said that the committee would have nothing to !ose if it
proceeded on the assumption that any State who declared its intention
of placing a territory under the trusteeship system would do so in all
good faith. The Belgian Delegation doubted whether the Trusteeship
Council could be brought into being on the basis of one single trust
territorv.
ilfr. Nichols (Union of South Africa} stated that on ali material points
the proposais seemed to be identical. But the time factor had not been DOCUMENTS FILED BY ETHIOPIA AND LIBERIA
sufficiently considered, not only because of the difficulties of the restricted
staff available insmall countries but also in view of the need for con~
sultation with the native populations, notably in such territories as
Palestine.
The time limit in the Yugoslav proposai would be insufficient. He
preferred that the United Kingdom modification "at the earliest possible
opportunity thereafter" should take the place of the original Yugoslav
wording "the second part of the First Session of the General Assembly".
He likewise deprecated the innuendo in the Yugoslav proposai which
was both unnecessary and untrue.
Mr. Gromyko (Soviet Union) suggested that the so-called ad hoc corn~
mittee was in fact the same as the temporary trusteeship committee,
with no difference in functions and composition. He was not surprised
that the mandatory powers were in favour of substitute organs, but if
the problem were dealt with along these lines, discussion could continue
for months or years without any action being taken. It was, however,
unnecessary for him to repeat the reasons, which he had given on many
previous occasions, why it would be wrong to establish substitute organs.
If the mandatory powcrs really adhered to the Charter, they should
come to the General Assembly and state that they were ready to place
territoriesunder trusteeship, and at the same time present trusteeship
agreements. He was in favour of the original Belgian proposai (PCJTC/24)
but he noted that the Belgian Delegate had somewhat changed his
position.
It would be extremely undcsirable and even dangerous to devia te from
the Charter. It would establish a very bad precedent if the proposed
temporary body were set up. With a bad precedent, other violations of
the Charter rnight follow and a succession of violations would lead to
serious consequences. He asked those who spoke in favour of a substitute
organ to reconsider the matter and not to press for any substitute organ.
The Yugoslav proposai would not cause inconvenience to the man
datory powers. The Soviet Union was in full agreement with that pro
posa!.
.Mr. Saba (Egypt) spoke against limiting the freedom of the General
Assembly. It was not right to prescribe for the General Assernbly what
advice it should take. Under the suggested composition, the General
Assernbly would be advised on trusteeship agreements by the very States
which had concluded them. The General Assembly should be left free in
seeking advice.
Mr. Wellington Koo (China) thought that ali Dclegates would agree
that the problem under consideration was one of short duration. The
Chinese Delegation was in accord with the Yugoslav proposai subject to
certain amendments.
First, he endorsed the change suggested by the United States Delega
tion to use the phrase "States directly concemed" for parties who should
be asked to proceed to negotiate trusteeship agreements.
Secondly, the Chinese Delegation also wanted the mandatof)' powers
to declare their intentions of placing the mandates under the trusteeship
system.
Thirdly, in the last sentence of the draft recommendation by the
Yugoslav Delegation, the words "during the second part of the first
session of" should be substituted by the word "by".
·He pointed out that the Commit tee was divided on the question of SOUTH WEST AFRICA
setting up a temporary or ad hoc committee. Those who were opposed to
a temporary organ considered that one agreement would suffice for
bringing the Trusteeship Council into being. He doubted the soundness
of the suggestion.
However, it was not absolutely necessary to set up the temporary
or ad hoc committee in view of the fact that the General Assembly would
have a main trusteeship committee dealing with trusteeship matters in
any case. If trusteeship agreements were subrnitted in the interval be
tween the first and second parts of the First Session of the General
Assembly, that main committee could decide what was the best thing to
do at the second part of the First Session of the General Assembly.
lt could also decide what was to happen if it were not possible to create
the Trusteeship Council until after the end of the First Session of the
General Assembly.
He therefore urged that use should be made of the main trusteeship
committee of the General Assembly, thus lcaving the question of a
temporary or ad hoc committee for the General Assembly itself to decide.
If this plan could be adopted, it would answer ali questions.
He, finally, suggested that the Committee might find it helpful to
appoint a subcommittee to consider the varions proposais on this ques
tion and recommend to the full Committee a new draft based on these
proposais.
Decision: The Committee accepted the proposai made by Mr. Koo and
appointed a subcommittee composed of the Delegates for Belgium, the
Soviet Union, Syria, the United Kingdom, the United States of America
and Yugoslavia.
The meeting rose atr2.55 p.m. Annex F
CoMMlTTEE 4: TRusTEESHIP
Summary Record of Meetings
No. 15
Saturday, 22 December 1945
FIFTEENTH MEETING
Held on Thursday, 20 December 1945, at 9 p.m.
Chairman: Mr. Guillermo Belt (Cuba)
Discussion of recommendation of the subcommittee on trusteeship
(PC/TC/41)
Mr. Franic (Yugoslavia), as Chairman of the subcommittee, said that
the recommendation (PCjTC/4r) was the result of full agreement of all
the members of the subcommittee. After long and serions consideration,
they had come to the conclusion that no recommendation should be
made for the creation of any temporary organ. The document PCJTCf6
was taken as the basis of discussion in considering what steps were
necessary to bring the trusteeship system into being as soon as possible.
There were sorne differences between the original document PCJTCJ6and
the document fi.nally agreed upon, PCjTCJ4r.
In paragraph 2 of PCfTC/41, the subcommittee had decided to include
all ofthe four subparagraphs of Article 76 of the Charter.
In paragraph 3 the words "further delay" had been replaced by "any
delay", while the reference to "just aspirations" had disappeared, as
the "just aspirations" of certain territories were to gain independence
rather than to be brought under trusteeship.
ln paragraph 4, it was emphasized that immediate action could only
be accomplished with respect to mandated territories.
Paragraph 5 had been carefully redrafted so asto avoid any implication
that the mandatory powers might try to delay the establishment of the
trusteeship system.
In the text of the resolution itself, the phrase "in concert with the
other States directly concerned" was inserted in the third line of the
fi.rst paragraph, because, while mandatory powers must be the first to
take practical steps, the other States directly concemed must co-operate
in the conclusion of trusteeship agreements. The phrase "preferably not
later than" was introduced to avoid possible difficulties arising from a
hard and fast limitation of time.
The last paragraph had been added as sorne members thought it
necessary to emphasize that further practical steps might be needed to
expedite the trusteeship system than those mentioned in the preceding
paragraph. If the General Assembly considered this was the case, then
the Trusteeship Committee of the General Assembly would act and use
the methods the General Assembly thought most appropriate.
All the members of the subcommittee were motivated by a desire to
have the trusteeship system of the Charter expedited. They ali worked SOUTH WEST AFRICA
in good will and co-operation. The fact that the disputed matters were
finally settled with unanimous agreement was a happy sign that the
United Nations could march on to success with nothing insoluble.
Mr. Green (United States of America) associated his Delegation with
the foregoing remarks. The recommendations feil weil within the limits
of the Charter and provided for legal equality between ail States directly
concemed. The emphasis on the mandatory powers was made purely
from a practical stand point. The second paragraph of the resolution met
the desire of the United States Delegation to dro.wattention to the need
of machinery for expediting the establishment of the system.
Mr. Poynton (United Kingdom} said that the United Kingdom in
accepting the recommendation, did not admit that the original Executive
Committee proposai was defective or unconstitutional. The emphasis
had been placed on the mandatory powers for purely practical reasons,
although it would be technically possible for a non-mandatory colonial
power to act in respect of one of Hs territories.
He supported the additional paragraph, as there would be a gap be
tween the first and second part of the first session of the General As
sembly when sorne machinery would be desirable to deal with any
trusteeship agreements which might be presented. The recommendation,
however, left it open for the General Assembly to consider what partic
ular methods it rnight like to use. The document PCJTC/25 indicated the
recommendations the United Kingdom would bring forward.
Mr. Bailey (Australia) said his Delegation would support the recom
mendation, but wished to reserve its position on severa! of the statements
made in the preamble. The resolution still implied that the legal status of
a mandatory power was different from that of the other States directly
concemed.
He then drew attention to three other points.
First, with regard to the first paragraph, page 2, the States admin
isteringnon-mandated territories were as certain as States administering
mandates; therefore, they also could take action in placing any kind of
dependent territory under trusteeship. Articles 75 and 77 of the Charter
did not make any distinction between mandated and other terri tories.
Secondly, in paragraph 2, page 2, there was an implication that
Article 8o imposed an obligation on States administering the territories
mentioned in Article 77 to place those territories under trusteeship. The
terms of Article 75 and 77 made it clear that the placing of a territory
under trusteeship would be a voluntary act.
Thirdly, the phrase "calls on", since it had a special connotation in the
Charter (e.g., Articles 33 and 41}, was unfortunate in this context.
His Delegation cordially associated itself with the language of the
resolution, but had to insist that the language of the preamble was not
within the letter and spirit of the Charter; the action of a manda tory
would be as voluntary as that of any State putting any kind of dependent
territory under trnsteeship.
Mr. Loridan (Belgium) said that his Delegation would liked to have
gone further in elaborating procedure for the examination of trusteeship
agreements, and reserved its position in subsequent discussions of this
question. His Govemment wished to make the following·declaration:
"The text and certainly the spirit of the Charter implied the placing
under trusteeship of territories now under mandate. Belgium wishes this
to be done as rapidly as possible." · DOCUMENTS FILED BY ETHlOPIA AND LIBERIA
11Ir. Nicholls (Union of South Africa) reserved the position of his
Delegation until the meeting of the General Assembly, because his
country found itself in an unusual position. The mandated territory of
South West Africa was already a self-goveming country, and last year its
legislature had passed a resolution asking for admission into the Union.
His Govemment had replied that acceptance of this proposai was im
possible owing to their obligations under the mandate.
The position remained open, and his Delegation could not record its
vote on the present occ<\sionif by so doing it would imply that South
West Africa was not free to determine its own destiny. His Government
would, however, do everything in its power to implement the Charter.
Mr. Lopez (Philippine Commonwealth) reminded the Committee of the
papcr which he had submitted (PC/TC/8/Add. 1). He still maintained
that recommendations should be made to the Security Council as weil as
to the General Assembly. The trusteeship system involved the peace and
security of the world, and thercfore the Security Council was primarily
responsible. The jurisdiction of the General Assembly could not begin
until the Security Council had decided which territories, or parts of them,
should be designated as strategie areas. For these reasons, he was relue
tant to vote for the subcommittee's recommendation.
Mr. Wilson (New Zealand) announced that he would vote for the
report, on the understanding th at his Delegation would be free to discuss
its wording further in the General Assembly.
Mr. Manuilsky (Ukrainian S.S.R.) statcd that, since reservations were
being made by other Delegates, he was obliged to do the same. He did
not agree, for instance, that the word "preferably", which had been
introduced into the resolution was compatible with paragraph 2 of
Article 8o of the Charter. Nevertheless, he would support the proposai.
Mr. Zeineddine (Syria) drew the attention of the Committee to the
fact that the omission of reference to "just aspirations"hadbeen ren:oved
at the instance of the Syrian Delegation. The just aspirations of theArab
peoples in particular could not be satisfied by anything short of in
dependence. Those Arab peoples, to whom the trusteeship system might .
be applied, had no less title to express their wishes than the population
of South West Africa. The door was left open for the satisfaction of their
aspirations because the Charter did not specify th at every terri tory in the
three categories mentioned in Article 77 was tocome under trusteeship.
He reserved the Syrian point of view on the methods to be used by the
General Asembly in inaugurating the trusteeship system. Much would
depend on the States directly concerned, who should be those States
which really were concerned, on account of their legitimate intercsts in
territories which might be brought under trusteeship.
Mr. Wellington Koo (China) thought the wording of the resolution was
susceptible of improvement, but refrained from moving amendments.
The Delegates for Australia and the Philippines had made sorne per
tinent observations. He wondered whether the words "for approval" in
the resolution implied approval by eithcr the General Assembly or the
Security Council as this was not quite clear in the text, but seemed to be
the only logical meaning. He associated himself with the dislike expressed
by another Delegate for the word "preferably".
He was satisfied that there would be ample opportunity for the
Chinese Delegation to express its views in the General Assembly.
Mr. Gromyko (Sovièt Union) approved of the report, but in view of the SOUTH WEST AFRICA
statements of other Delegates reserved full freedom for his Delegation in
the General Assembly. He disassociated himself from the remarks of the
United Kingdom Delegate on the subject of a temporary trusteeship
comrnittee.
Jo.fr.Ponsot (France) observed that the French position had been
stated in PCJTC/33. and he reserved the right of his Delegation to express
it in the General Assembly. He would vote in favour of the proposai.
The delegate for Belgium explained that he had not intended to make
any reservation on the text of the subcommittee's recommendation, but
only on the question of subsequent procedure.
Mr. Franic (Yugoslavia) thanked his colleagues on the Committee for
the tributes which they had paid to his chairmanship of the subcom
mittce, and accepted them in the name of the subcommittce as a whole.
Decision: The Committee adopted the report by the subcommittee
(PC/TC/41) by twenty-eight votes to none. As a result of this decision,
the recommendation contained in PC/TC/41 takes the place, in the report
to the Preparatory Commission, of sections z, 3, 4 and 6 of chapter IV,
of the Report by the Executive Committee. Section 1 of chapter IV of
the Report by the Executive Committee likewise disappears, and the
report by Committee 4 to the Preparatory Commission consists solely of
the text of PC/TC/41 and the text of PCJTC/34/Rev. I.
The Delegates for Turkey and the Union of South Africa asked that
their abstention in the above vote should be placed on record.
Mr. Poynton (United Kingdom), as representative of the host country,
moved a vote of thanks to the Chairman and the Secretariat, including
the interpreters. This was seconded by Mr. Gromyko (Soviet Union) and
supported by Mr. Lapez (Philippine Commonwealth), who rcmarked that
the attention given by Committec 4 to the views of small States was a
good augury for the future of the United Nations.
A question was raised on the form in which the Committee's action
with regard to the Report by the Executive Committee should be placed
on record. A motion by the Delegate for the Philippine Commonwealth,
to the effect that the rejection of the suggestion for a temporary trustee
ship committee should be explicitly mentioned in Committee 4's report,
was rejected.
Mr. Bailey (Australia), speaking as Chairman of the Drafting Com
mittee, expiained that the form which it had been decided to give to the
Report by the Preparatory Commission precluded the adoption of this
proposai.
The Chairman undertook that the significance of the adoption by the
Committee of the recommendation contained in PC/TC/41 would be
explained, not only in the present Summary Record but also in the
speech introducing the report of the Committee to a plenary session of
the Preparatory Commission.
The Chairman announced that the Committee had concluded its
business.
The Committee rose at I2.JO a.m. Annex G
Original: English PCjTC/41
20 December 1945.
PREPARATORY COMMISSION Ol' THE UNITED NATIONS
COMMITTEE 4:
RECOMMENDATION OF SUBCOMMITTEE ON TRUSTEESHIP
DRAFT RESOLUTION FOR THE GENERAL ASSEMBL Y
Taking into account that the United Nations has assumed the duty
under Chapters XII and XIII of the Charter to establish a system of
intemat1onal trusteeship;
Considering that the system of international trusteeship is being
established to promote, in particular, the objectives prescribed in
Article 76 of the Charter:
" (a) to further international peace and security;
(b) to promote the political, economie, social, and educational
advancement of the inhabitants of the trust territories, and their
progressive development towards self-govemment or independence
as may be appropriate to the particular circumstances of each
territory and its peoples and the freely expressed wishes of the
peoples concemed, and as may be provided by the terms of each
trusteeship agreement;
(c) to encourage respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or
religion,and to encourage recognition of the inter-dependence of
the peoples of the world; and
(d) to ensure equal treatment in social, economie, and com
mercial matters for aU Members of the United Nations and their
nationals, and also equal treatment for the latter in the administra
tion of justice, without prejudice to the attainment of the foregoing
objectives and subject to the provisions of Article So."
Considering that any delay in putting into effect the system of inter
national trusteeship prevents the principles of such system as declared
in the Charter of the United Nations from being implemented, deprives
the populations of such terri tories as may be brought under the trustee
ship system of the opportunity of enjoying the advantages arising from
the implementation of these principles;
Considering that under Article 77 of the Charter there are three
categories of territories to which the trusteeship system applies, two of
which are for the time being uncertain (namely B and C of Article 77)
and that immediate action can be taken only in respect of territories
under mandate (namely A of Article 77);
Considering that Article 8o of the Charter provides that there shall be
no delay or postponernent of the negotiation and conclusion of agree-490 SOUTH WEST AFRICA
ments for plaông mandated and other territories uncler the trusteeship
system as provided for in Article 77; and
Considering that the trusteeship system of the Charter cannot im
mediately be brought into being without the close co-operation of the
States Members of the United Nations now administering the territories
under mandates.
The Preparatory Commission of the United Nations recommends the
General Assembly to adopt the following resolution:
"The General Assembly of the United Nations calls on the States
administering territories in accordance with the League of Nations
Mandates to undertake practical steps, in concert with the other states
directly concerned, for the implementation of the provisions of Article 79
of the Charter providing for the conclusion of the agreements on trustee
ship terms for each territory to be placed under the trusteeship sy;;tem,
in order to submit these agreements for approval prcferably not later
than the second part of the first session of the General Assembly.
Those trusteeship matters which will be taken up by the General
Assembly at the first part of its first session with the purpose of expediting
the establishment of the trusteeship system, will be considered by the
Trusteeship Committee of the General Assembly, using the methods
which the General Assembly considers most appropriate for the further
consideration of these matters." III. DOCUMENTS FILED BY THE AGENT FOR THE
GOVERN}IENT OF SOUTH AFRICA 1
RESPONDENT'S REPLY TO APPLICANTS' MEMORANDUM HEADED:
"MEMORANDUM REGARDING EVIDENCE INTRODUCED BY RESPONDENT
DURI~T GHE ORAL PROCEEDINGS OF 24 MAY 1965"
FILED WITH THE REGlSTRAR OF THE COURT UNDER COVER OF A LETTER
DATED 30 JUNE 1965
r. In the aforementioned ~Iemorand u mplicants referto the fol
lowing documents introduced by Respondent during the course of the
oral proceedings on 24 May 1965, viz.:
(1) Document No. PCfTCfn, dated 4 December 1945, being a document
filed by the delegation of the United States of America, which docu
ment contained proposais for amendmcnt of the report of the Exec
utive Comrnittec of the Preparatory Commission conceming the
functions of the proposed Temporary Trusteeship Comrnittee.
(2) Document No. PCjTC/30, being the verbatim record of a speech by
Mr. Green, delegate for the United Statesof America, at the Ninth
meeting of Committee 4 of the Preparatory Commission on 8 De
cember 1945.
\Vith regard to the said documents Applicants state in their ::liemo
randum:
"The essence of Respondent's arguments with respect thereto lies
in the significance sought to be attributeto the introduction of a
proposed United States amendment (PC/TC/n) to the Report of the
Executive Committee of the Preparatory Commission relating to
the duties of the proposed Temporary Trusteeship Committce and
to the fact that such amendment was not thereafter considered or
debated. The inference (gratuitously and erroneously) drawn by
Respondent from this circumstance appears to be that the amend
ment was abandoned for lack of support or that, in sorne other man
ner, the incident is relevant to the issue of survival of obligations
ofinternational accountability of mandates notwithstanding dis
solution of the League of Nations." (IX, pp401-403.)
Applicants then proceed to submit what they term "Findings", pur
ported to be based on the contents of certain further PreparatoryCom
mission Documents, copies of which are annexed to their Memorandum;
and, finally, they submit a "Conclusion", purported to be based on their
so-called "findings".
' See ParIV,~o. uS, p.6o4,infYa.492 SOUTH WEST AFRICA
2. Respondent will in the further paragraphs of this Reply demonstrate
that there is no justification for Applicants' comment (in the statement
quoted above) that the inferences drawn by Respondent from the circum
stances surrounding the United States proposed amendment were gra
tuitous and erroneous, and that in certain material respects Applicants'
so-called "findings" are wrong and/or without substance. In particular
Respondent will show that Applicants err in making statements to the
following effect:
(a) that the reason why the proposals of the United States of America
contained in document PC/TC/n were not discussed by Commit tee 4
of the Preparatory Commission at its Ninth meeting, held on
8 December 1945, nor at its Tenth meeting, held on 10 December
1945, was that the Committee "agreed" upon an agenda and that at
the said meetings discussions took place in accordance with the
so-called "agreed agenda";
(b) that when Committee 4 at its said Tenth meeting referred the pro
posaisthen before it to a subcommittee, consideration ofthe establish
ment of the proposed Temporary Trusteeship Committee itself was
deferred, and further, that, consequently, consideration of the
United States proposai relating to the election of the Temporary
Trusteeship Committee became irrelevant;
(c) that when Committee 4 decided against the creation of any tem
porary organ the United States proposais contained in document
PCJTCJn lost ail relevance.
In the premises, as will be shawn, Applicants' final "conclusion"
regarding this aspect of the case has no value whatsoever.
In the course of this demonstration it will be necessary to refer in sorne
detail to the proper sequence of events in Comrnittee 4 of the United
Nations Preparatory Commission, and to draw attention to particular
provisions contained in the relevant documents. In this regard it may be
stated that there was no need for Applicants to have filed the documents
annexed to their Memorandum (Annexes A-G) since ali such documents
are, and have at ali times been, available in the library of the Court.
3· The Executive Committee in its report of the Preparatory Com
mission of the United Nations recommended the establishment of a
Temporary Trusteeship Committee to-
"carry out certain of the fonctions assigned in the Charter to the
Trusteeship Council, pending its establishment". (Document PC/
EX/II3/Rev. I, 12 Nov. 1945, p. 55 vide IX, p. 392.)
The said report contemplated that, in the exercise of its interim
powers, the Temporary Trusteeship Committee would undertake the
fonctions of the Trusteeship Council regarding supervision of territories
submitted to the trusteeship system. (Document PC/EX/II3/Re,·. I,
12 Nov. 1945, p. 58 vide IX, pp. 392-393.)
No provision was made in the said report for the supervision of
Mandates not brought under Trusteeship. The only function proposed
for the Temporary Trusteeship Committee relative to mandates was to-
"advise the General Assembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilities hitherto exercised under the mandate system". DOCUMENTS FILED BY SOUTH AFRICA 493
(Document PC/EX/II3/Rev. 1, 12 Nov. 1945, p. 56 vide IX, pp.
392-393-)
It was recommended by the Executive Committee that the tenure of
the Temporary Trusteeslii.p Committee should cease when-
"through the conclusion of a sufficient number of trusteeship agree
ments, the conditions in Article 86 [of the Charter] have been
fulfilled",
i.e., when the Trusteeship Council could itself begin to fonction. (Docu
ment PCJEXfnJJRev. 1, 12 Nov. 1945, p. 56 vide IX, p. 392.)
4- The part of the report of the Executive Committee relating to the
Trusteeship System came before Committee 4 of the Preparatory Com
mission at its Second Meeting on 29 November 1945· (Summary Record,
PC/TC/2.)
The representative of Australia, Mr. Paul Hasluck, explained the
reasons underlying the proposai of the Executive Committee for a
temporary body. (Summary Record, PCjTCj2, p. 2-3}.
Thereafter confiicting views were expressed by the delegates.
Certain delegates-Mr. Gromyko of Russia and Mr. Franic of Yugo
slavia-expressed the view that the establishment of the proposed
temporary committee would be unconstitutional and unnecessary. (Sum
mary Record, PC/TC/2, p. 3-4-)
Other delegates expressed a contrary view.
Thus Mr. Green of the United States of America stated that his delega
tion regarded the establishment of the proposed temporary committee
as "reasonable and practical". He was prepared to consider other pro
posais, but expresscd the view that the "Preparatory Commission must
make sorne recommendation regarding interim machinery''. (Summary
Record, PCjTCj2, p. 4-)
Mr. Creech-Jones of the United Kingdom also supported the proposai
for the establishment of a temporary Committee and stated that, in
asmuch as there were-
"difficulties and gaps in the Charter, ... sorne improvisation was
inevitable". (Summary Record, PCfTC(2, p. 4-)
Mr. Bailey of Australia also favoured the proposai for a temporary
Committee. (Summary Record, PCJTC/2, p. 5-)
Mr. Nicholls, the delegate of the Union of South Africa, stated that if
doubt existed among sorne of the delegations asto whether the creation
of the proposed temporary body would be constitntional the Committee
must seek legal judgment. He also stated that-
"on the question of expediency, it seemed reasonable to create an
interim bodv as the Mandates Commission was now in abevancc and
countries holding mandates should have a body to which they could
report". (Summary Recorà, PCjTCj2, p.4-)
Respondent has already advanced compelling reasons for its contention
that Mr. Nicholls' remarks could not have been intended to relate to
territories such as South West Africa, in respect of which the Union of
South Africa had intimated that it should not "be held to have acqui
esced in the continuance of the Mandate or in the inclusion of the
territory in any form of trusteeship under the new International Organi-494 SOUTH WEST AFRlCA
zation". Respondent has also indicated that i\Ir. Nicholls' words cannat
be interpreted as implying that there was an obligation to report. (Vide
IX, pp. 395-398.)
When the second meeting of Committee 4 adjourned on 29 November
1945, the Chairman suggested that~
"those Delegations that objected to the recommendation of the
Executive Committee [i.e., the recommendation for the establish
ment of a temporary trusteeship committee] should introduce, if
they wished, an alternative resolution to be considered at the begin
ning of the next meeting ... ". (Summary Record, PCfTC/2, p. s.)
5· At the next, the Third, meeting of Committee 4, on 30 November
1945, J\lr. Franic of Yugoslavia came forward with a proposai which, as
he stated, would eliminate the need for a temporary trusteeship com
mittee.
In brief his proposai was that the General Assembly should-
"invite the mandatory powers, who are Members of the United
Nations Organization, to submit declarations of their willingness to
put the territories overwhich they have so far been acting as ad
ministering authorities undcr the trustceship system of the Charter
... ". (Summary Record, PCfTC/4, p. 8.)
His proposai further involved the appointment of-
"an ad hoc committee of the General Assembly to examine these
declarations of the present manda tory powers ... ". (Summary
Record, PCfTC/4, p. g.)
At this meeting the representative of the United Kingdom, Mr. Poyn
ton, asked for time to study the Yugoslav proposai, but at the same time
reiterated the view already expressed by his delegation at the earlier
meeting of the Committee, namely that the establishment of the pro
posed Temporary Trusteeship Committee would not be unconstitutional,
and he stated reasons for favouring the creation of such a body rather
than an ad hoc committee of the General Assembly. (Summary Record,
PCjTC/4. p. 7.)
And J\lr. Green of the United States said that~
"He did not think that the temporary Trusteeship Commit tee was,
in fact, unconstitutional because therc was unquestionably a gap in
the Charter. The recommendation for the temporary Trusteeship
Committee in the Report could still be used as a basis for discussion."
(Summary Record, PCjTCj4, p. 8.)
The Committee decided to postpone further discussion of this issue
until a Iater meeting so as to enable the delegates to study the matter.
(Summary Record, PC{TC/4, p. 8.)
The Committee at its next meeting, the Fourth ;\feèting, on 1December
1945, allowed Mr. Manuilsky of the Ukrainian S.S.R and l\1rBailey of
Australia to speak on the Yugoslav proposai and then proceeded to deal
with other matters contained in the report of the Executive Committee.
(Summary Record, PCfTCfs, p. 10.)
6. The question of the establishment of a temporary trusteeship com
mittee and the alternative proposai bv Yugoslavia for the appointment
of an ad hoc Committee of the General Assembly stood over until the DOCUMDITS FILED IlY SOUTH M'RICA. 495
Ninth Meeting of Committee 4 on 8 December 1945, the Committee in
the meantime attending to other matters.
During this interval, however, certain States filed written proposais
for amendment of the recommendation for establishment of the tem
porary trusteeship cornmittee and for the appointment of an ad hoc
Committee.
Respondent will in the following paragraphs deal briefty with these
proposais.
7· Proposa/, of the delegation of the Philippines, Summary Record
PCfTCf8 dated 4 December I945-
The Philippines put fonvard three alternative proposais, namely,
(i) the creation of a joint preparatory Committee of the Security
Council and the General Assembly on Trusteeship: It was intended
that this Committee would co-ordinate the preliminary functions
of the Security Council and the General Assembly;
(ii)the creation of a "Committee on Trusteeship oftheSecurity Council".
This Committee was intended to assist the Security Council in per
forming its functions regarding trusteeship both before and after
the establishment of the Trusteeship Council;
(ili) the creation of a "Preparatory Committec on Trusteeship of the
General Assembly". It was intended that this Committee should
prepare the necessary ground work for the Trusteeship Council,
and should cease to exist as soon as the Trusteeship Council came
into being.
None of these thrce proposais in any respect referred to mandated
territories not brought into the trusteeship system.
8. Proposals of the Delegation of the United States of America.
The United States of America filed two separate proposais, both
bearing the date 4 December 1945 and numbcred respectively PCJTC/Io
and PCfTCfn.
The first-mentioned of the said proposais is that referred toby Appli
cants in their ~lemorandu um dcr the heading "Findings" in the para
graph lettered (a), and was headed-
"Suggestion for the formation of a Trusteeship Council based upon the
Proposal of the delegatioof Yugoslavia (PC fTC/3)."
The proposais contained in this document came very near to the
proposais put fonvard by the delegation of Yugoslavia. Like the Yugo
slav proposai it recommended that the General Assembly should invite
mandatory powers to submit declarations of their willingness to enter
into trusteeship agreements. It also proposed that the General Assembly
should create an ad hoc Committee or authorize its Trusteeship Com
mittee to create an ad hoc Sub-Committee. The said ad hoc Committee
or ad hoc Sub-Committee would then exercise the same functions which
the Executive Committee had proposed for the Temporary Trusteeship
Committee in its report. With regard to the said functions, see para
graph 3 above.
The second of the United States' proposais was contained in document
No. PCJTCjrr headed-
"Proposed Amendment to part III, Charter IV, Section 2,para- SOUTH WEST AFRICA
graph 4, concerning the Functions of the Temporary Trusteeship
Committee. ''
The full text of this document is contained in the Verbatim of 24 May
rg65 (IX, pp. 401-402).
In this document the United States drew attention to the fact that the
report of the Executive Committee made no provision for any organ of
the United Nations to carrv out the functions of the Permanent Mandates
Commission. •
1t recommended that-
"ln orcier to provide a continuity between the Mandates system
and the trusteeship system, to permit the mandatory powers to
discharge their obligations, and to further the transfer of Mandated
terri tories to trusteeship, the Temporary Trusteeship Committee (or
such a committee as is established to perform its functions) and lat er,
the Trusteeship Council should be specifically empowered to receive
the reports which the mandatory powers are now obligated to make
to the Permanent Mandates Commission."
It was therefore suggested that the powers of the Temporary Trustee
ship Committee (or such Committee as was established to perform its
functions) should be enlarged so that such Committee could-
"undertake, following the dissolution of the League of Nations and
of the Permanent Mandates Commission, to receive and examine
reports submitted by Mandatorv Powers with respect to such terri
toriesunder mandate as have not been placed under the trusteeship
system by means of trusteeship agreements, and until such time as
the Trusteeship Council is established, whereupon the Council will
perform a similar function". (Document PCfTCfn, p. 2.)
It is clear that the United States of America realized that unless
specifie provision was made to that end, there would be no powers of
supervision in respect of mandated territories not submitted to trustee
ship. And the United States delegation sought to bring about such pro- •
vision by recommending that before and until the Trusteeship Council
could function a temporary body, be it the proposed Temporary Trustee
ship Committee or the proposed ad hoc Committee, should "be specifie
ally empowered" to exercise supervisory powers over mandates not
converted to trusteeship, and that the Trusteeship Council should "be
specifically empowcred" to perform a similar function once it came to be
esta blished.
As will be shawn hereinafter, the reasoning in Applicants' Memo
randum indicates that they do not fully apprecia te the significance of the
proposais contained in the documents PC/TC/ro and PCfTCjrr.
9· Proposai of the delegation of Belgium (PCfTC/24, dated 5 December
I945).
The Belgian delegation intimated that it was in agreement with the
recommendation that the General Assembly should invite the manda tory
powers to lodge declarations of their willingness to place their mandated
territories under the trusteeship system. lt, however, had misgivings
regarding the establishment of an ad hoc Committee and made proposais
which intended to avoid the establishment of any temporary body. DOCU:\ŒNTS FILED BY SOUTH AFR!CA 497
10. Proposal of the delegation of the United Kingdom (PC{TC{25, dated
5 December I965).
In this document the delegation of the United Kingdom stated that in
putting forward the proposais contained therein it should not be under
stood as accepting the arguments advanced by certain delegations that
the establishment of a Temporary Trusteeship Committee would be
unconstitutional. 1t expressecl the view that there was little essential
difference betwcen the proposais of the Executive Committee and the
proposai of the Yugoslav delegation. Both schemes made provision for
the establishment of a tcmporary body: in the one scheme a subsidiary
organ appointcd under Article 22 of the Charter (i.e., the Temporary
Trusteeship Committee), and in the other scheme an ad hoc Committee
of the General Assembly. Ncither body was specifically providcd for in
the terms of the Charter.
The United Kingdom, however, regarcled the two schemes as equally
satisfactory and was prepared to agree to the Yugoslav proposai if there
was general preference for it.
The Yugoslav proposai was therefore incorporated in the United
Kingdom proposai, which provided that the General Assembly should
invite mandatories to declare whether they intended to place their
territories under trusteeship. lt also provided for the appointment of an
ad hoc Committee and set forth the proposed functions of the said Com
mittee. One of the proposed functions was-
"to advise the General Assembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilities hitherto exercised under the Mandates System".
(Document PC/TC/25, p. 4-l
lt is to be noted that the United Kingdom intended the same limited
role forthe ad hoc Committee relative to Mandates as did the executive
Committee in its proposai for a Temporary Trusteeship Council. Vide
paragraph 3;supra. Neither the Temporary Trusteeship Committee pro
posed by the Executive Committee nor the ad hoc Committee proposed
by the United Kingdom would have powers of supervision over Mandates.
rr. At the Ninth Meeting of Committee 4 of the Prepara tory Commis
sion the said Committee had before it the Report of the Executive
Committee as well as the aforementioned proposais of the various
delegations.
The heading of the relevant part of the summary record of this meeting
reads as follows:
"Continuation of discussion of Section 2, Chapter IV, of the
Report [i.e., the section containing the proposai for the Temporary
Trusteeship Committce], and of PCfTCf3 [the Yugoslav proposai],
PCJTC/6[the Yuguslav draft resolution], PC/TC/8 [proposai of the
Philippines], PCfTCfro [the proposai of the United States], PC/
TCfn [the second proposai of the United States], PC/TC/24 [the
Belgian proposai], and PC/TC/25 [the proposai of the United
Kingdom]."
Under the said heading there appears the foHowing:
"The secretariat proposed that the discussion of these various
documents should be divided into three parts: SOUTH WEST AFRICA
r. the terms of resolution to be recommended to the General As
sembly. This discussion would take place on the basis of the Yugo
slav proposai (PCJTC/6), but would also take into account the
relevant parts of the United States and United Kingdom proposais
(PCfTCjro and PCJTC/25).
2. The question whether there should be any ad hoc committee, and
if so, what should be its composition and functions. This discus
sion would take place on the basîs of the Belgîan proposai
(PC(fC/24), but would also take into account the Philippine
proposai (PC/TC/8) and the relevant parts of the Yugoslav,
United States and United Kingdom proposais (PCJTCJJ, PC/
TCfro, and PCjTC/25).
3· The United States proposai for providîng a degree of contînuity
· between the i\Iandates System and the trusteeship system PC/
TC/n)."
Applicants say in their ~iemorand thmt the said "procedures were
suggested and agreed upon". [Applicants' i\Iemorandum para. (b) under
the heading "Findings''.]
The summary record, however, merely mentions that this procedure
was proposed by the Secretariat, and does not say that it was agreed
upon. It is, in any case, difficult to see how the three interrelated subjects
could be discussed in separa te compartments, and, in fact, they were not
so discussed.
In this regard Applicants say in their Memorandum:
"During the course of the meeting the United States Delegate
made the statement in PCjTCj30 (the second document introduced
by Respondent on 24 May rg6s). As is evident, from the agreed
agenda describecl above, as weil as from the substance of the state
ment itself, the discussion was limited to part (r) of the agenda and
related only to Documents PC/TC/6 and PCjTC/25." (Memorandum,
para. (c), under the heading "Findings".)
This statement is not correct. .
The very first speaker at this meeting, Mr. Franic of Yugoslavia,
disregarded the order of discussion proposed by the Secretariat. He
commenced his speech, which is recorded verbatim in document PC/
TC{zg, as follows:
"The Yugoslav Delegation has submitted the document PCfTC/3
containing suggestions for the formation of the Trusteeship Council.
This document, which was subsequently amplified by the Delega
tions of the United States and Belgium, can serve, we believe, as
the basis for discussion. Furthermore, the Delegation of Yugoslavia
has subrnitted the draft resolution concerning the same matter
(PC/TC/6}. That draft resolution could serve as the basis for the
decision which has to be taken." (PCfTCfzg, p. r.)
It will be recalled that the document PCJTC/3. which the Yugoslav
delegation suggested should serve as the basis of discussion, record cd that
delegation's criticism of the Executive Committee's proposai for the
establishment of a Temporary Trusteeship Committee, which in the
Opinion of the Yugoslav delegation would have been an unconstitutional
step. That document also contained the Yugoslav proposai that 1\landa· DOCUMENTS E'ILED BY SOUTH AFRICA 499
tories be invited to make declarations of their willingness to put their
mandatcd territoriesunder the Trusteeshîp system, and furthennore
recommended the appointmcnt of an ad hoc committce of the General
Assembly (vide para. 5, supra).
And il-ir. Franic indeed discussed not only the resolution recorded in
document PCJTC/6, but also the proposais contained in document
PC/TC/3·
He stated that the Yugoslav delegation was "strongly opposed to the
creation of any temporary organs" (PC/TCjzg, p. 3), he explained the
procedure recommended by the Yugoslav delegation for the speedy
establishment of the Trusteeship Council without the necessity for
creating a Temporary Trusteeship Committee, and he stated in this
regard that his delegation-
•
"accordingly expects that the Trusteeship Council will be formed
not later than during the second part of the first session of the
General Assembly, without any provisional or similar organs which
would be in confiict with the spirit of the Charter(PCfTCjzg, p. 3.)
He went on to say that the Trusteeship Council could be established
as soon as any one territory had been placed under the Trustecship
system and stated-
"In our opinion, the Trusteeship Council cannot be formed so
long as there are no terri tories under the trusteeship system, because
there is noabject for it. But the Trusteeship Council can and must
be fonned as soon as thcre is at least one territory which has been
placed under the trusteeship system, that is to say, as soon as there
is an abject in regard to which the Trusteeship Council can and must
exercise its supervising functions." (PC/TC{29, p. 5.)
Immediately after the speech of the representative of Yugoslavia
Mr. Green of the United States of America delivered the speech recorded
]n document PCJTCJJo,and it is clear from the text thereof that also he
departed from the order of discussion proposed by the Secretariat.
lndeed, he was forced to depart from that arder in view of the line taken
by ~fr Franic of Yugoslavia. He said in this regard:
"... I am very grateful indced to the Delegate of Yugoslavia for
hisexplanation of the Resolution, document No. 6. 1 was not at ali
clear in my own mind as to the exact relationship between this
H.esolution and his original paper [i.e., PCJTC/3] which was a more
general outline of principles. I should like primarily to address
myself to the text of the Resolution, but secondarily to sorne of the
remarks and explanations which he made of that text, as far as
I could take those explanations down in my notes." (PCjTC/30, p. r.)
?llr. Green thcn referred to the paper which the United States had
submitted [i.e., PC/TC/ro] as a revision of the original paper submitted
by the Yugoslav delegation [i.e., PC/TC/3] and he statcd:
"1 hope the Yugoslav delegation dicl not abject to the liberties
which we took in changing sorne of the details in his paper. My
delegation still feels there is nothing objectionable whatever in the
Report of the Executive Committee proposing the establishment of
a Temporary Trusteeship Committee; it still seems tous that that issoo SOUTH WEST AFRICA
a perfectly constitutional method of procedure and a perfectly
practicalmethod of procedure, and we are willing to agree to that
proposal if we cannat agree on any alternative; but we are quite
willing to explore any other alternative arrangement and are quite
willing, as I indicated, to accept the proposais of the Yugoslav
delegation on the !ines which I have indicated." (PCJTC/30, p. I.)
Mr. Green then dealt with the text of the Yugoslav proposed resolution
and thereafter commented on the explanations made by Mr. Franic in
support of his delegation's proposai.
In the course of such comment he dealt with the Submissions of the
Yugoslav delegation that the conclusion of one trusteeship agreement
would suffice for the establishment of the Trusteeship Council and that
the c;reation of the proposed Temporary Trusteeship Committee was not
necessary.
He demonstrated that this contention raised certain constitutional
difficulties,nd said in conclusion:
"Suppose that I am correct and the Yugoslav delegate unfortu
nately is incorrect in his statement of the conditions for establishing
the Trusteeship Coundl, suppose you want more than one trust
territory, suppose you need three or four-whatever the lawyers
advise us is the proper number-you might have ali but one agree
ment concluded before the General Assembly. What then? Who looks
after the territories which have been submitted to trusteeship?
That was the advantage of the original Temporary Trusteeship Com
mittee in the Executive Committee Report. That would have been
the advantagc of the "ad hoc" Committee which the Yugoslav
original paper proposes [i.e., PCJTC/3], if it were authorized, as our
revised paper [i.e., PCJTCjiO] proposes, to be empowered to carry on
after the session of the first Assembly, if you do not get a sufficient
number of agreements. 1 merely raised th at question because I think
it is a serious one if any interpretationof the basic conditions for
the establishment of the Council are correct." (PCJTC/30, p. 8.)
Immediat ely after Mr. Green's speech Mr. Saba of Egypt referred to the
document filed by the United Kingdom. PCJTC/25, and dealt with the
proposai for the creation of an ad hoc Committee instead of a Temporary
Trusteeship Committee, and with the composition of such a Committee.
(PC/TC/31, p. 23.)
Then spoke Mr. Lopez of the Philippines, and the meeting was ad
journed.
From the above analysis it is perfectly clear that Applicants are wrong
when they state in their Memorandum [paras. (c) and (d} under the
heading "Findings"] that at this meeting, i.e., the Ninth Meeting of
Committee 4, the delegates discussed only part (1) of the agenda sug
gested by the Secretariat, and that it was only at the next, i.e., the
xoth Meeting of Committee 4 on 10 December, that "the discussion moved
forward into consideration of part (2) of the agreed agenda, viz., docu
ments PCjTCjiO, PCJTC/24 and PCjTCj25". (Applicants Memorandum,
para. (d), under heading "Findings".)
And Applicants are equally wrong in stating that the discussion by
Mr. Green of the United States was "limited to part (r) of the Agenda and
related only to documents PCJTCJ6and PC/TC/25". (Memorandum,
para. (c}, under heading "Findings".) DOCUMENTS FILED BY SOUTH AFRICA sor
Mr. Green, in fact, discussed the legality and practicability of giving
effect to the proposai of the Executive Committee for the establishment
of a Temporary Trusteeship Committee; he discussed the proposed
resolution contained in Yugoslav paper PC/TC/6; he dealt with the
Yugoslav proposai contained in document PCfTC/3 as explained by
Mr. Franic, and he discussed the proposai contained in the document
filed by the United States, PCfTC/ro, including the proposai for the
establishment of an ad hoc Committee and the powers suggested for that
Committee.
Mr. Green did not mention the proposais contained in the United
States document PCfTCfn, and it is indeed strange that he did not do so
when he drew attention to the functions proposed for the Temporary
Trusteeship Committee and for the alternative body, the ad hoc Com
mittee, and when he expressed concem regarding supervision of terri
tories which would be submitted to trusteeship before the Trusteeship
Council could be formed. Why did he not then make mention of the
matter dealt with in document PC/TCfn, i.e., the supervision of man
dated territories after the dissolution of the League, which the United
States in the said document suggested should be carried out by the
proposed temporary committee or by the alternative body, the proposed
ad hoc committee, and later by the Trusteeship Council itself?
I2. The discussions at the Ninth Meeting of Committee 4 were con
tinued at the Tenth meeting of the Committee on ro December 1945.
The first speaker at that meeting was Mr. Ponsot of France who is
reported to have "made a statement of the French point of view on the
whole problem before the Committee". (Summary Record, PC/TC/32,
at p. 24.}
Mr. Ponsot is also reported to have-
"read the text of a resolution suggested by his Delegation, and
expressed the hope that the text might serve as a basis of a working
document" (Summary Record, PCfTC/32, at p. 24).
The text of this resolution is not included in the summary record of the
proceedings at this meeting but appears to be that contained in a paper
submitted by the French delegation and circulated as document No.
PC/TC/33· In this document the French delegation dealt with the prob
lem by referring to various provisions of the Charter of the United
Nations and recommended the establishment of-
"an ad hoc committee to be called the Preparatory Trusteeship Com
mittee,to carry out, under the direct authority of the General
Assembly, such preliminary functions as are necessary for the
creation, at the earliest possible date, of the Trusteeship Council".
(Document PC/TC/33, p. s.)
It is significant that the French delegation did not intend that the
ad hoc Committee proposed by them should have any functions relative
to Mandates other than the following:
"to advise the Assembly on any matters arising out of the transfer
to the United Nations of these functions and responsibilities which
originate either in the Mandates system, or in earlier international
agreements or instruments". (Document PCfTC/33. p. s.)502 SOUTH WEST AFRICA
Generally with regard to the functions of this ad hoc Committee, the
French proposai contained the following:
"This Preparatory Committee, which will in no sense exercise the
functions and powers devolving on the Trusteeship Council under
Articles 87 and 88 of the Charter, will have no mission other than
that of helping to bring about as quickly as possible, under the
authority of the Assembly, the se conditions under which the Trustee
ship Council can be set np." (Document PCJTC/33, p. 6.)
Other delegates at this meeting of Conunittee 4 also discussed the
advisability of establishing either a temporary committee or an ad hoc
committee, and dealt with the functions intended to be assigned to the
said bodies and the question whether the establishment of such bodies
would be constitutional.
Thus the representative of India, i\Ir.Krishnamachari, favoured the
establishment of an ad hoc Committee although he expressed the opinion
that "the recommendation of the Executive Committee [i.e., for the
establishment of a Temporary Trusteeship Council] was weil within the
provisions of the Charter". (Summary Record, PCjTC{32, pp. 24-25.)
Mr. Creech-Jones of the United Kingdom stated that he-
'\vas prepared to take up the Yugoslav proposai as the basis for
discussion,but stresscd that it should not be taken to mean that the
recommendation of the Executive Commit tee was unconstitutional".
(Summary Record, PCjTCj32, p. 25.)
Mr. Orts of Belgium said that the Belgian proposai contained in docu
ment PC/TC/24, which made no provision either for a temporary or an
ad hoc body,
"would allow of the Trusteeship Council being established 'vithout
delay, according to the desire expressed in the Charter, without
having recourse to the creation of one or other provisional body,
the desirability of legality of which was rightly or wrongly, opened
to discussion". (Summary Record, PCjTC/32, p. 25.)
The delegate of New Zealand, Mr. Wilson, supported the Yugoslav
proposai, which included the appointment of an ad hoc body, subject to
the amendments suggestcd by the United States and the United King
dom, and he said that-
"he hesitated to agree that a tcmporary Committee of any kind was
nccessary". (Summary Record, PCjTC/32, p. 25.)
Mr. Gromyko of the Soviet Union said that the proposed ad hoc com
mittee was in fact the same as the temporary trusteeship committee
recommended by the Executive Committee, and his delegation opposed
bath proposais as being unconstitutional. (Summary Record, PCJTC/32,
p. 26.)
The Chinese delegate, Mr. Wellington Koo,
"pointed out that the Committee was divided on the question of
setting up a temporary or ad hoc committee". (Summary Record,
PCJTC/32, at p. 27.)
He expressed the view that it was not absolutely necessary to set up
a temporary or an ad hoc committee in view of the fact that the General DOCUMENTS FILED BY SOUTH AFRICA 503
Assembly would have a main trusteeship committee dealing with hustee
ship matters.
He thereforc urged that-
"use should be made of the main trusteeship committee of the
General Assembly, thus leaving the question of a temporary or ad
hoc committee for the General Assembly itself to decide. If this plan
could be adopted, it would answer all questions."
And, in conclusion, he suggested that-
"the Committee might find it helpful to appoint a sub-committee to
consider the varions proposais on this question and recommend to
the full Committee a new draft based on these proposais". (Sum
mary Record, PC/TC/32, p. 27.)
This proposai was accepted and a sub-committee appointed composed
of the delegatcs for Beigium, the Soviet Union, Syria, the United King
dom, the United States of America and Yugoslavia. (Summary Record,
PC/TC/32, p. 27.)
Applicants in their Memorandum refer to the Appointment of this
Sub-Committee and say-
"Consequently, neither at the Ninth nor Tenth meeting of Com
mittee 4 was part (3) of the agreed agenda reachcd. Consideration of
the United States amendment relating to the duties ofthe Temporary
Trusteeship Committee clearly was irrelevant in any event, in
asmuch as consideration of establishment of the proposed Tempo
rary Trusteeship Committee itself had been deferred''. (;\Iemo
randum, para. (e), under the heading "Findings" .)
There is no substance in these contentions. In the first place, as has
been demonstrated above, the dclegates did not follow the arder of dis
cussion suggested by the Secretariat. Right from the start of the Ninth
Meeting, and through the Tenth Meeting, the delegates discussed the
proposai for the establishment of a Temporary Trusteeship Committee
and the alternative proposais for the establishment of an ad hoc Com
mittee. They dealt with the constitutional position of the said proposed
bodies and the advantages which they saw in having either the one or the
ether of these bodies.
It is true that neitherthe UnitedStatesdeiegate, nor any otherdelegate,
refcrred to the proposals contained in the United States paper, document
PCfTC/n. But that, precisely, is the remarkable point of the whoie
discussion, and particularly of the attitude of the United States Rep
resentative, Mr. Green. He defended the proposai for the establishment
of a Temporary Trusteeship Committce as being "a perfectly constitu
tional method of procedure and a perfectiy practical method of pro
cedure", and stated that his delegation was "willing to agree to th at
proposa] if we cannot agree on any alternative". (Document PCJTCj30,
p. 8 and vide para. II,supra.)
And he dealt with the advantages of having either a Temporary
Trusteeship Committee or an ad hoc Committee, (Document PC/TC/30,
p. 8 and vide para. II,supra.)
The question immediately arises: why did he not mention the further
functions relative to .Mandates which his delegation intended and had put SOUTH WEST AFRICA
forward in document PCJTCjii for whichever of these Committees came
to be established?
Clearly, in the view originally taken by the United States when it
submitted document PC/TC/II, that was an additional advantage which
could have been obtained in creating either a temporary or an ad hoc
body.
Secondly, the Applicants are wrong when they say that by the end of
the Tenth meeting "consideration of establishment of the proposed
Temporary Trusteeship Committee itself had been deferred" and that,
accordingly, "consideration of the United States amendment relating to
the duties ofthe TernporaryT rusteeship Committeedearlywas irrelevant''.
Nothing of the sort happened. The original proposai by the Executive
Committee for such a temporary body stood throughout these discus
sions, together with the alternative proposai for an ad hoc Committee.
Indeed, the United States delegation expressed themselves willing to
agree to the establishment of the proposed temporary committee if
Committee 4 could not agree on any alternative.
But Applicants' comment is in any event without foundation in
asmuch as the proposai in document PC/TC/II regarding supervision of
Mandates after the dissolution of the League was not tied to the idea of
a Temporary Trusteeship Committee. Applicants have lost sight of the
fact that the United States proposai as expressed in document PC/TC/n
was that the said function should be performed by-
"the Temporary Trusteeship Committee (or such a committee as is
established to perform its functions) ." (Document PCJTC{II, p. r
and vide para. 8, supra.)
And the United States itself had proposed in document PCJTCfro that,
if instead of the establishment of a temporary Committee, the alternative
suggestion was accepted of establishing an ad hoc Committee, that
Committee should exercise the functions intended for the Temporary
Trusteeship Committee. (Document PC/TCfro, p. r and vide para. 8,
supra.)
The whole of the comment contained in para. (e) of Applicants'
Memorandum, under the heading "findings", is therefore unsound.
13. As far as Respondent is aware, there is no record of the delibera
tions which took place in the sub-committee relative to the proposais for
the creation of a temporary Committee or, alternatively, an ad hoc Com
mittee, or relative to the functions which should be performed by such
bodies.
As indicated above, the delegate for the United States served on this
sub-committee.
At the fifteenth meeting of Committee 4 on 20 December 1945, the
sub-committee reported tothe said Committee.
l\Ir.Franic of Yugoslavia, the Chairman of the sub-committee, ex
plained that-
"After long and serious consideration, they had come to the con
clusion that no recommendation should be made for the creation of
any temporary organ." (Summary Record, PCfTC/42, p. 38.}
He then dealt with the recommendation of the sub-committee, which
is set out in document PC/TC/4I and which reads as follows: DOCUME::-<TS FILED BY SOUTH AFIUCA sos
"The Prepara tory Corrnnission of the United Nations recommends
to the General Assembly to adopt the following resolution:
The General Assembly of the United Nations calls on the States
administering territories in accordance with the League of Nations
Mandates to undertake practical steps, in concert with the other
States directly concemed, for the implementation of the provisions
of Article79 of the Charter providing for the conclusion of the agree
ments on trusteeship terms for each territory to be placed under the
trusteeship system, in arder ta submit these agreements for approval
preferably not later than the second part of the first session of the
General Assembly.
Those trusteeship matters which will be taken up by the General
Assembly at the first part of its first session with the purpose of
expediting the establishment of the trusteeship system, will be con
sidered by the Trusteeship Committee of the General Assembly,
using the methods which the General Assembly considers most
appropriate for the further consideration of these matters." (PC/
TC/41, pp. 2-3.)
Various delegates addressed the meeting and discussed the amended
proposal.
A number of delegates spoke in support of the proposa!, but sorne
delegations reserved the right to express views on certain particular
points in the General Assembly.
The South African delegate, Mr. Nicholls, reserved the position of his
delegation until the meeting of the General Assembly. (Summary Record,
PCjTCj42, p. 40.)
Mr. Green of the United States also spoke in support of the new pro
posai. (Summary Record. PC{TC{42, pp. 38-39.) Again it is significant
that he made no mention of his Govemment's earlier proposai contained
in document PC/TC/II relative to supervision of mandates after the
dissolution of the League. ·
The proposai of the sub-committee was adopted by Committee 4 by
28 votes to none, Turkey and the Union of South Africa abstaining.
(Summary Record, PC/TC/42, p. 41.)
The proposai of the sub-committee then took the place of the recom
mendation contained in sections 2, 3, 4 and 6 of Chapter IV of the report
of the Executive Committee.
Applicants in this regard say in their Memorandum:
"The United States proposed Amendment to Section 2 of Chap
ter IV of the Report of the Executive Committee, contained in
document PC/TC/n (introduced by Respondent on 24 May 1965)
thus had lost any relevance whatever." (Memorandum, para. (g),
under heading "Findings".)
Also this contention is without substance.
It is true that, inasmuch as the final recommendation adopted by
Commîttee 4 made no provision either for a Temporary Trusteeship
Committee or for an ad hoc Committee, the United States proposa! that
whichever of these Committees was to be appointed should have super
visory powers over mandates. fell away. But Applicants have lost sight
of the fact that the United States proposai contained in document
PC/TC/n went further. It also recommended that "the Trusteeship
Council should be specifically empowered to receive the reports which theso6 SOUTH WEST AFRICA
mandatory powers are now obligated to make to the Permanent ~lan
dates Commission". (PCJTC/n, p. r.)
The proposai of the United States was that the proposed temporary
committee or the proposed ad hoc Committee should supervise mandates
not placed under the trusteeship system "until such time as the Trustee
ship Council is established whereupon the Council will perform a similar
function". (PCJTCjn, p.2 and vide para. 8, supra.)
The fact that it was expected by Committee 4 that there would be no
delay in establishing the Trusteeship Council. and that the said Com
mittee eventually made no provision for an interim body, did not at ail
detract from the United States proposai in PC/TC/n that the Trustee
ship Council should be specifically empowered to supervise mandates not
admitted to Trusteeship as soon as the Council was established.
And it is indeed strange that this proposai, contained in document
PCfTCfn, was never referred to by the United States delegate at any
of the meetings of Committee 4, or thereafter; nor was it referred to by
any other delegation.
14. In view of what is stated above relative to the so-called "findings"
in Applicants' Memorandum, it is clear that the following "Conclusion"
in the Memorandum bas no substance, viz.:
"The United States proposai (document PCJTC/n) was not reached
in the course of discussions at the Ninth Meeting of Committee 4·
No significance whatever is attributable to the fact that the United
States Representative made no reference to it then or thereafter,
except that it became irrelevant by reason of the procedure adopted
by the Committee." (Memorandum, p. 5.)
As indicated above, the procedure of discussion suggested by the
Secretariat, which Applicants refer to as the "agreed agenda", was in
fact not followed, and there is no question of the United States proposai
not having been reached in the course of discussion at the Ninth Meeting
of the Committee. Nor had the proposai become "irrelevant by reason of
the procedure adopted by tlJC Committee' '.
The Submissions which Respondent made in the oral proceedings
on 24 May 1965 (IX, pp. 401-404) as to the significance of the United
States proposai contained in document PCJTCfn, and the fact that it
was never raised in the discussions of Committee 4 of the Preparatory
Commission, therefore remain valid and forceful.
From the contents of document PC{TC/n it is clear that the United
States delegation realized that, unless specifie provision was made to that
end, the Organs of the United Nations would have no supervisory powers
in respect of mandates not submitted to the trusteeship system.
The United States sought to bring about such specifie provisions by
suggesting that the proposed Temporary Trusteeship Committee or the
proposed ad hoc Committee should be "specifically empowered" to super
vise Mandates un til such time as the Trusteeship Council was established,
and that the Trusteeship Council should be "specifically empowered" to
exercise the same function relative to mandates not hrought under the
trusteeship system-as soon as the Council became established.
The fact that the United States delegation at no stage in the discus
sions of Committee 4, or thereafter, referred to this proposai can only
leadto the inference submitted by Respondent in its argument on 24 il'lay
rg65, viz., DOCUMENTS FILED BY SOUTH AFRICA 507
"that therc must have been sorne reason for that and the most
probable reason in the circumstances would be discussion between
the United States delegation and other delegations which resulted
in the matter being seen in a different light and a proposai of this
kind not being proceedcd with. In other words, 1\ir. President, a
situation very nearly the same in principle as we found in regard to
the first proposai by China at the last meeting of the League As
sembly, which after discussion had to be superseded by another
proposai, leading to the obvions inference that it was clear that the
first one could not have obtained the nccessary support." (IX,p. 403.)
This conclusion is also entircly consistent with the attitude adopted
by the United States of America after the dissolution of the League.
As indicated elsewhere in the oral proceedings, the United States
representative on the Trusteeship Council in 1947, Mr. Gerig, stated
clearly and emphatically that outside of a Trusteeship Agreement the
United Nations had no Supervisory Powers over Mandates. (Il, p. z8r;
IX, pp. 452-453.)
Documents submitted to the Court after the closure of the Written Proceedings (Rules of Court, 1946, Article 48)