PART III
DOCUMENTS SUBMITTED TO THE COURT
AFTER THE CLOSURE OF THE
WRITTEN PROCEEDINGS
(RuleofCourtArtic98)
TROISIÈME PARTIE
DOCUMENTS PRESENTES A
LA COUR APR~S LA FIN DE LA
PROCEDURE ÉCRITE
(Règlement,article98)
ONote :
See also theSecottd Part, Oral Arguments (Vols. VIII-XII), and the Fatirth
Part. Corresponde~zce (inlva).
Voir igalemenl Deltxièmepartie, Plaidoiries (Vol. VIII-XII), et Qiratrièwte
partie, CorresPonda~zc ci-après). 1. DOCUMENTS FILE11 BY THE AGENT FOR THE
GOVERNMENT OF SOUTH AFRICA1
Original : English PC/TC/II
4 December 1945.
I
PREPARATOR COYMMISSIO ON THE UNITEDNATIONS
USITEI) STATES IIELEGATION :
Proposed amendment to Part III, Chapter IV, Section 2,paragraph 4,
coricerning functionsof the Temporary Trustceship Committee.
I. The Report by the Esecutive Comrnittee rnakes no provision for
any organ of the United Nations to carry out the functions of the
Permanent AIa~idatesCommission. In Part III, Chapter IX, dealing rvith
the League of Nations there occurs the following statement: "Since
the questions arising from the winding up of the Rlandatcs system are
dealt with in Part III,Chapter IV, no recommendation on this subject
is included here" (Section 3, para. 5, p. 110).No specific reference to
the functions of the Permanent LIandates Commission is to befound,
ho~vever, in Part III, Chnptcr IV, rclating to the trustecshipsystem.
Section z, paragraph 4 of that Chapter (p. 5G) merely assigns to the
Temporary Trusteeship Committee a general advisory function in this
field: "(iv) advise the General Assembly on any matters that might
arise with regard to the transfttr to the United Nations oany functions
and responsibilities hitherto exercised under the Mandates system."
2. In order to provide a degree of continuity hetween the mandates
sÿstem and the trusteesh sjstem, to permit the mandatory powers to
discharge their obligations, ancto further the transfer of mandated tcr-
ritories ta trustecship, the Ternporary Trustecship Committee (or such
a cornmittee as is established to perform its functions) and, later, the
Truçtceship Council shoulcl be specifically empowered to receive the
reports which the mandatory powers are now obligated to make to the
Permanent alandates Commission. The existing obligations and rights
of the parties it-ivolvcd uitder the manciates system witrespect to arly
manclatcd territoi-y continuein force until such territory is piaced under
trusteeship by an individual tiusteeship agreement or until some other
international arrangement is made. To bridge any possible gap which
might exist between the termination of the manciates syçtem and the
establishment of the trusteeship system, it would appear appropriate
that the supervisory functions of the Permanent Riandates Commission
shouId be carried on temporai-iIy by the organ of the United Nations
which isto handlc trusteeship matters.
3. In order, thcrcfore, that the report of the Preparatory Commission
may bc complete in this respectthe following aniendment isproposed.
Sec IX,pp..+oftand Part IV, No.94,p.580,infra. SOUTHWEST AFRICA
4. Amendment
Add a new subparagraph lu)to paragraph 4 of Part III, Chapter IV.
Section 2, to be worded as follows :
"(v) undertake, folIowingthe 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-
ritories under mandate as have not been placedunder the trusteeship
' system by means of trusteeship agreements, and until such time as
the Tmsteeship Council is established, whereupon the Coiincil will
perform a similar function."Original :English PC/TC/3o
8December 1945.
COMMITTEE 4
Speech by the Delegate for
the United States of Amenca
at the
Ninth Meeting, 8 December 1945.
nlr. Chairman, 1am very grateful indeed to the Dele ate of Yugoslavia
for his explanation of the Resolution, document No. 8 .1 was not at ali
clear in rny own mind astothe exact relationship between this Resolution
and his original paper, which was a more general outline of principles. 1
should like primarily ta address myself to the textofthe Resolution. but
secondarily to some of the remarks and explanations which he made of
that text, as far as 1could takr: those explanations down in my notes.
My Delegation, as indicatecl 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 proposals as a basis for establishing
the trusteeship system with tht: modifications which we indicated in the
revision which wemade. 1hope the Yugoslav Delegationdid not object to
the liberties which we took in changing some of the details in his paper.
MyDeIegation still feeIs that there isnothing objectionable whatever in
the Report ofthe Executive Comrnittee proposing the establishment of a
perfectly constitutional method; of procedure and a perfectly practical
method of procedure, and we are willing to agree to that proposa1 if we
cannot agee on any alternative; but bveare quite willingto explore any
other alternative arrangement and are quite wiliing, as 1 indicated, to
accept the proposals of the Yugoslav Delegation on the lines which 1
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 paragraph1wonder
whether he would consider one modification, since he mentions only one
of the four objectives of the trusteeship system. Article 76of the Charter
lists four objectives, and it would notseem to me to be quite proper to
pick out only one. the second one, which speaks of the economic, 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 tIie Yugoslav Resolution reference is made
to Chapter XI of the Charter, which is quite different and in effect has
nothing to do with the truçteeship system itself. The Resolution says that
furtherdelay prevents the principles declared inChapter XI from being
jmplemented. If I understand ChapterXI correctly, no delay in the
trusteeship system would affect in any way the obligations which the
States administering other territories-colonial territories-have under45 a SOUTH WEST AFRlCA
Chapter XI. Therefore 1 would suggest deletion of that reference in the
second paragraph.
Mr. Chairman, in the third paragraph 1have some reservations about
the exact language. Our paper which we subrnitted based upon the first
paper of the Yugostnv Delegation took that language verbatim, but 1am
not quite sure that it gives the correct impression. It is perhaps true from
a practical point of view to Saythat it is easier to deal with themandated
or territoryavoluntarily contributed to the system; butd fr1mdo not thinks
there is any legnl distinction between categories (a). (b) and (c) in
Article 77: they are ofan equal legal çtatus. None of them have to be
placed under the triisteeship systein:any one of them may be, according
to the Charter; and legally there is no more reason forthe mandated
territories to come first tlian there is for the territories detached from the
enemy States. It is~iurelya practical problem. In the case of the detached
territories, asthe Delegate of the Soviet Union said in his opening speech
on this question, they are tiedup with the question of peace treaties, aiid
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 proposal, 1 wonder if there might be some modification in
the language. The paragraph as it now stands seems to imply that the
rnandatory powers have some special responsibility for delay and post-
ponement under Article 80. If you read Article Socarefully, you will see
that the mandatcd territories are mentioned alongwith other territories.
The second paragraph of Article So, to which this paragraph of the
l'ugoslav Resolution relates, specifies that nothing in the preceding
paragraph shall bt: interpreted as giving grounds for delay or post-
ponement of the negotiation and conclusion of agreements for placing
mandated and other territories under the trusteeship system. It seems to
me to be not quite fair to the mandatory powers to pick out only those
territories, when Article 80 mentions both,and it would necd only slight
revision to accord with paragraph 2 of Article80.
Tuming to the other side of the page of the yugoslav Kesolution, 1
have two comments to make on the text of the liesolution itselfThe
Resolution proposed by the Yugoslav Delegation begins as follows:
"The General Assembly of the United Nations calls on the States ad-
ministering territories accordance ivith theLeagueof Nations Mandates
to undertake practical steps", etc.1 wonder if it rnight not accord more
closely with the languagc of the Charter if we uçed the phrase in the
Charter: ". ..cails upon the States directly concerned in mandated ter-
ritories. including theandatory power ...".That is the languageof the
Charter, which implies, if 1understand it correctly, that the manclatory
power is an obvious State concerned, but there rnay be others. Therefore
Isuggest, as the first point in our revisiof the original Yugoslav paper
states, that the General Assembly would cal1 upon the States directly
concerned, incIudirig the rnandatory powcr, to take these steps. That is,
anyone, without trying to define which ones are concerned: any which are
concerned, includiiig the mandatory power; shall take these steps.
At the end of tht: Resolution, at the bottom of this last paragraphit is
proposed that the Assembly invite the States concerned, or, as it now
reads, the States administering territories,"to submit these agreements
forapproval during the second part of the first session of the GeneraI AS- DOCUMENTS FILEL) BY SOUTH AFRICA 459
sernbljr".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 al1
of us to get the trusteeship system established as soon as possible. 1 do
not want to underscore thesc difficulties:1merely point out that there is
only a matter of three or four months before the Genera1 Assembly
might adjourn from its first session, or whatever itsschedule may be.
That is not rnuch time for a determination to be reached by diplomatic
negotiation as towhich are the States concerned in individual territories,
for those States to prepare their own plans and proposals, todraft agree-
ments, for them to negotiate the agreements and forthe General As-
sembly to consider those agreements. The General Assembly wiiihave
other business on its agenda. All of us here are serving Governments and
al1 of ils know how much time it takcs for any Government to get deci-
sions reached niid to negotinte proposals upon the basis of those deci-
sions. Somuch for the test of the Resolution.
1should like to make one or two comments on the explanation which
the Yugoslav Delegate made for us of his paper, if 1 underçtand him
corrcctly.1 was gratified to llcar him say that he would not undertake in
this Resolution a (tefinition or determination as to which are the States
directly concerned other than the mandatory power, rvhich is specified in
the Charter. It is the opinioil of my Drlegatioti, as indicated in the
revisioii whichWC made of the original paper submitted by the Delegate
of Yugoslavia, that it would not be proper for the Preparatory Com-
mission or forthe General Assembly to undertake such a definition. 'The
Charter specifies the States directly concerned,including the mandatory
power in the case of mandated tcrritories. 1 do not think it would be
proper to go behind that definition or statement. It is for the States
concerned thernselves to dctesmine that. The General Assembly on be-
half of the Organization, or the Security Council in the case of agree-
ments dealing with strategic areas, has its opportunity to rule upon this
determination of the States concerned when the agreements are submit-
ted. Ifthe General Assembly finds thnt an agreement which is subrnitted
hy States A. B and C,omits State D which the Geiieral Assernbly in its
judgment thinks should be included, it can refuse to approve the agree-
ment. 1 am obliged to the Yugoslav Delegate for revising his original
papcr. I am not sure, however, that 1quite understand his proposa1 that
the permanent rnembers of the Trusteeship Council and the mandatory
powcrs should get together and begin work on these agreements. If 1
understand him correctly, that woiild imply a definition of the States
c incerned by this body. That might be a beneficial procedure, but I
would not like to sce itin the text of the Resolution, and1 assume it will
not be there, if this is the paper which he is proposing.
There is one other point on which 1 have some doubts. That was the
position he took on the basic conditions for the establishment of the
Trusteeship Corincil. 1 am neither a mathemntician nor a lawyer, for-
tunately or unfortunately; ço 1am not sure that1 can givcyou adefinition
as to what those conditions are.The Delegate from Yugoslavia seerncd to
assume that it \+-asa questiori of territories, thaif one territory were
placcd under trusteeship, then there would be the need for a Trusteeship
Couricil to supervise that tcrritory: you havea trust territorytherefore,
you nced somebody to look aft:er it and to check up on the ndministcring460 SOUTH WEST AFRICA
authority in exercising ail the functions listed in the Charter. On the
other hand, the Charter specificaliy says that there rnust be a balance
within the Trusteeship Councilbetween theStates 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
there should be a balance between those administering territories andtem
those which are not administenng temtories, 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 proposal, as 1understood it, from the Yugoslav Delegate-
that one State administeringa trust temtory 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 cal1 an "iffy" question: it is only
hypothetical. There you have the United Kingdom as one of the five
permanent members of the Trusteeship Counciiand four other permanent
members not administering trust temtory. That ta my mind is not the
balance which the Charter envisages4ne against four. 1am quite willing
to leave this determination to the law ers and 1 hope they will help
clarify these things, but it seems me t at the proposa1as 1 understood
it does raise some constitutional difficulties.
In conclusion, because of these constitutional difficulti1would like
to ask the Delegate from Yugoslavia as to what happens if, for the
technical reasons 1 mention, we do not have sufficient trusteeship
sion. That inmymind has always been the crucial issue. We will attempts-
to get those agreements signed, but suppose they are not, for pureiy
technical reaçons and because of the difficulties 1 have mentioned, who
exercises these functions; who carries out the principles of the Charterin
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 al1but one
agreement 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
advantage of the "ad hoc" committee which the Yugoslav original
paper proposed, if it were authorized, as Ourrevised paper proposes, be
empowered to carry on after the session of the first Assembly, if you do
not get a sufficient number of agreements. 1 merely raise that question
because 1 think it is a serious one if my interpretation of the basic
conditions for the establishment of the Councii are correct.II. DOCUMENTS FILED BY THE AGENT FOR THE GOVERN-
MENTS OF ETHIOPIA AND LIBERIA l
30June 1965,
MEMORANDUM REGARDING EVIDENCE INTRODUCED BY RESPOKDENT
DUKING THE ORAL PKOCEEDINGS OF 24 MAY 1965 @
During the Course of the oral proceedings on 24May 1965,Respondent
introduced United Nations Preparatory Commission Documents Nos.
PC/TC/II and PC/TC/3o.
The essence of Respondent's arguments with respect thereto lies in
the significance sought to be attributedto the introductionf a proposed
United States amendment (PC/TC/rr) 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
(gratuitoualy and erroneously) drawn by Respondent from this circum-
stance appears to be that the amendment was abandoned for lack of
support or that, in some other manner, the incident is relevant to the
issue of survival of obligations of international accountability of man-
dates notivithstanding diss~lution of the League of Nations. [IX ,p.
401-403.)
The Applicants have made a careful review of the relevant proceedings
and, on the basis thereof, respectfully submit the following findings and
conclusions :
1.Findings
(a) The United States Delegation to Committee 4 of the Preparatory
Commission submitted two prctposals on 4 December 1945.One was the
proposal in Document PCITCIII (adduced by Respondent). The other,
not referred to by Respondent, was the suggested modification of a
Yugoslav proposa1for an Ad Hoc Committee, pending formation of the
Trusteeship Council. The Yugoslav proposal, in turn, was a suggested
modification of the Executive Committee's recommendation for a
Temporary Trusteeship Committee. The second United States proposal,
aforesaid, is appended as Annex A; the original Executive Committee
recommendation for a Temporary Trusteeship Committee is appended as
Annex B; the Yugoslav proposa1 isappended as Annex C. (PC/TC/IO.
PC/EX/II~/R~V. 1, and PC/TC/4, respectively.)
fb) At the Ninth Meeting of Committee 4of the Preparatory Commis-
sion, held on8 December 1945 (not IO December, aserroneously stated
by Respondent) procedures were suggested and agreed upon, as follows:
'"3.Continuation of discussion of section 2, chapter IV of the
Report, and ofPCfTCI3,PC/TC/6,PC/TC/i3,PC/TC/ro, PC/TC/rr,
PC/TC/24 and PC/TC/25.
' SeePartIV, No.101.p. 587 infra.462 SOUTH WEST AFRICA
"The Secretarint proposcd that the discussion of the variouç
documents should be divided into thrce parts:
"(1) The terms of resolution to be recommended to the General
Assembly. This discussion would take place on the basis of the
Yugoslav proposa1 (PCJTCJG),but would also take into account the
relevant parts of the United States and United Kingdom proposals
(PC/TC/IO and PC/TC/Z 3).
(2) The (luestion whether tliere shouldbe any ad hoc committee,
And if so, what should be its composition and functions. l'his dis-
cussion would take place on the basis of the BeIgian proposa1
(PC/TC/z4), but would also take into account the Philippine pro-
posa1 (PCITCIS) and the relevant parts of the Yugoslav, United
States, anrl United Kingdom proposais (PCJTCJ3, PC/TC/IO, and
PC/TC/25).
(3) The United States proposal for providing a degree of con-
tinuity between the Ilandates system and the trusteeship çystem
(PCITCIII). "
(Summary Record; PC/TC/~I, pp. 1-2; hppended hereto as
Annex D.) b
(c) During the course of the meeting, the United States Delegate
made the statement in PC/TC/3o (the second documcnt introduced by
Respondent on 24 May 1965). As is evident, from the agreed agenda,
described above, as meIl as from the substance of the statement itself,
the discussion was lirnited to part11 of tlieagenda and related only to
Docrimenfs PC/TC/6 and PC/TC/zg (see para. (b), supra).
{d) The next Meeting ofCommittee 4 of the Preparatory Commisçion
was Iield on IO December 1945 (Surnmary Record is appended hereto as
Annes E). The discussion moved fonvard into consideration of part (2)
of the agreed agenda, viz., Documents PCJTCIIO, PCITCIz4, and PC/
TCJ25. Document PCI'KIIO, appended as Annex A hereto, was the
Yugoslav proposal. The Summary Record of the Terith Neeting shows
that the Representative of China suggested an alternative to the Esecu-
tive Committee proposa1 for a Temporary Trusteeship Committee as
well as to the Yugoslav Yroposal of an ad hoc committee, as follows:
"He thcrefc~reurged that use should be made of the main trustee-
ship committee of the General Assembly, thus lcaving the question
of atemporary or ad hoc comrnittee for the General Assembly itself
to decide.If thipslan coiildhe adoptcd, it ~voiilanswer a11ques-
tions." (Annex E; p. 4.)
He likeivise suggested that a subcommittee be appointed by Com-
mittee 4 "to consider the various proposals on this question and recom-
mend to the full Committee a new draft based on these proposals."
(Ibid.)
(e) The Committee accepted the Chinese proposal, and a subcom-
mittee \vasappointed accordingly. Consequently, neither at the Ninth
nor Tenth hleetirig of Committee 4 was part (3)of the agreed agenda
renched. Consideration of the United States amendment relating to the
duties of the Teinporary Trusteeship Cornmittee clearly was irrelevant in
any event, inasrnuch as consideration of establishment of the proposed
Ternporary Trusteeship Cornmittee itselfhad been deferred. DOCUMENTS FILED BY ETHIOI'IA AND LIBERIA 463
If) At tlie Fifteenth Meeting of Committee 4, the Chairman of the
subcommittee reported that it "had corne to the conclusion that no
recommendation should be made for the creation of any temporary
organ". (Document PC/TC/42, first page; appended hereto as Annex F.)
The recomrnendation of the subcommittec took the form of a Trusteeship
Draft Resolutian for the General Assembly (Document PCITCI~I,ap
pended hereto as Annex G). Cornmittee 4 adopted the report of the sub-
committee (Document PC/TC/4r) by 28 votes to none. On the last page
of Documeiit PC/TC/42 (Annex F hereto), the following decision is
recorded :
". ..the recommendation contained in PC/TC/4r takes the place,
in the report to the Preparatory Commission, of sections z, 3, q
and 6 of chapter IV of the Report hy the Executive Committee.
Section Iof chapter IV of the Report by the Executive Committce
likewise disappears,and the report by Committee 4 to the Pre-
paratory Commission consists solelyofthe text ofPC/TC/~I and the
text ofPC/TC/34/Rev. 1."
(g) The United States proposcd amendinent to Section 2 ofChapter IV
of the Report by the Executive Committee, contained in Document
PC/TC/II (introduced by Respoiident on 24 May 1965) thus had lost
any relevance whatever.
The United States proposal (Document PC/TC/II) was not reached in
the course of discussions at the Ninth Meeting of Committee 4. No
significance whatever is attributableto the fact that the United States
Representative made no reference to it then or thereafter, except that
itbecame irrelevant by reason ofthe procedure adopted by the Com-
mittee. AnnexA
Original :English PCITCIIO
4 December 1945.
COMMITT4E :E
TRUSTEESHIP COUNCIL
DELEGATION OF THE UKITED STATES
SUGGESTION FOR THE FORMATION OF A TRUSTEESHIP COUNCIL BASED
UPON THE PROPOSAL OF THE DELEGATION OF YUGOSLAVIA (PC/TC/~)
The dificulties 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.
Of the three categories of territories mentioned in Article 77 of the
Charter, the temtories under B and Cremain uncertain. Only the terri-
tories under A (mandated terntories) are certain.
The Preparatory Commissioncould recommend that the First Part of
the First Sessionof the GeneralAssembl~should :(1)invite the mandatory
powers, who are members of the United Nations Organization, to subrnit
declarations of their willingnessto enter into negotiations for placing the
territories over which they have so far been acting as administering
authonties under the tnisteeship system of the Charter; (2)recommend
that the States directly concerned in each mandated territory, including
the mandatory power, should proceed immediately 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 strategic areas, to the Secunty Council for approval; (3)
create an ad hoc cornmittee or authorize its Trusteeship Committee to
createan ad hocsub-committee, to exercise the functions listed in Chap-
ter IV, Section 2, paragraph 4 of the Report, and to be composed as
indicated in paragraph 5,except for the followingrevision of item (ii) :
(ii) the Members,other than those mentioned by name in Article 23.
which areat present administeing mandated terntories and which
have declared their intention promptly to enter into negotiations for
placing any such territories under tnisteeship;.
and (4)empower this Ad Hoc Committee or sub-comrnittee to remain in
existence and exercise its functions between sessions of the General
Assembly if for any reason a sufficientnumber of trusteeship agreements
have not been concluded to permit the establishment of the Trusteeship
Councilby the end of the first sessionof the General Assembly.
In the meantime onthe basis ofthe above recommendation and intheir
desire to settle this problemas soon as possible the present mandatory
powers would prepare a11that rnay be necessary in order to be able to
respond to the invitation ofthe 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. DOCUMENTS FILED BY ETHIOPIA AND LIBERIA 4%
From that moment until the Second Part of the First Session, the
States directly concerned couldconclude 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. Anad hoc cornmittee of the
General AssembIy. or an ad hocsub-cornmittee of the Truçteesbip Com-
mittee of the General Assemt>ly,to examine these declarations of the
present mandatory powers couid usefully be formed.
Afterthe Security Council or the General Assembly had approved the
agreements a Trusteeship Council could then be formed. Annex B
CHAPTER IV: THETRUSTEESHI SPYSTEM
Section r: Kecomrnendation concerning the Establishment of the
Trusteeship System
The ExecutiveConmittee l,
Considering that in accordance with Article 86 of the Charter the
Trusteeship Council cannot be formed until a number of temtories shall
first have been placed under trusteeship; and
Considering that it isnevertheless desirable that some interim orgai]
should be established to assist the General Assembly in expediting the
constitution ofthe trusteeship system and, pending the establishment of
the Trusteeship Coiincil, in taking such other action iri 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 Truçteeship Committee, the formation, com-
position, functions and duration of which are elaborated in Section z;
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'Provisiona1 Rules of Pro-
cedure which are found inSections 3and 4, respectively;
3. that, with a view to assisting the Temporary Trusteeship Com-
mittee in its work, the Preparatorv Commission also approve the
proposais contained in Sections 5 and 6, concerning:
(a) Rules of Procedure for theTrusteeship 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
Section 2: Report on Interim Arrangements Required Pending the
Establishment ofthe Trusteeçhip Council
The Terms oJthe UgiitedNations Charter
I. The composition of the Trusteeship Council is governed by para-
graph I of Article 86 of the United Nations Charter, which reads as
follows :
"1. The Trusteeship Council shall consist ofthe following Mem-
bers of the United Nations:
'The Czechoslovak, Sovict and YU~OS~~V Delcgationsmilde ohjectioti to the
proposalfor the cstal)lishmeiofthe Ternporary TrusteeshipCommittee on the
grounds that such action is iiot authorized by the Charter anbewunconstitu-
tional.
Additional materiafortlie considerntion theTemporary Trusteeship Corn-
mittee wilbefound inthe Appendices toPart III, Cliripter IV. DOCU>lESTS FILEU BY ETHIOPIA ASW LIBERIA 467
(a) those Members ad~ninistering trust territories;
(b) such of those hlembers mentioned by name in Article 23 as
are not administering trust territorics ;
(cl as maiiy other hleinbers elected for three-year terrns by the
General Assembly as may be necessary to cnsure that tht: total
number of inembers of the Trusteeship Council is equally divided
between those Mcmbers of the United Nations which administer
trust territories and thost: which do not."
2. Half the members of tlie Council \\il1 be those Jlembers of the
United Natioiis which administer trust territories.Tlic terrn "trust
territories" means such territories as Inay, by subsequent individual
agreement, be placed under the International 'Trusteeship Systein (Ar-
ticles73arid77). At present, therefore, there are no trustterritories, nor
will there be any iintil trusteeship agreements for individual territories
have been approved by the Generai Assembly, or, in the case of strategic
areas, by the Security Council (Articles 83 and 85). Consequently, there
arc at present no &lembers of the United Nations administering trust
territories: and,therefore, a l'msteeship Council composed as .laid doivn
in Article 86 of the Charter c:annot yet be formed. Some means of re-
solving ttiis dificulty must he foutid, and the Committee submits the
folloiving recomrnendations.
P~oposalfor a Temporary Trusteeshi$Cornmittee
3. The Committee recomrnends that the General Assembly, acting
under Article 22 of the Charter, create a tempurary subsidiary organ to
carry out certain of the functions assigned in the Charter to the Trustee-
ship Council, periding its establishment.
4. This Temporarv Trusteeship Committee wouId, inte ria, 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 XI1 and XII1 of the Charter;
(ii) assist and advisetliGeneral Assembly in the discharge of any
of its functions with regard to proposed non-strategic areas, in-
cluding the approval of trusteeship agreements;
(iii)assistthe Secnrjty Coiincjl in such matters as the Security
Couiicil migfit wish to rr:fer to tlie Temporar~ Trusteeship Com-
mittee in relation to matters mentioned in Article Sg(3):
(iv) advise the General Assembly on riny matters that might
arise with regard to the transfer to tlie United Nations of any
functions and responsibilities hitherto exercised under the Mandates
System.
Cornfiosilionof thel'emfiovary TrwsteesltipConzmittee
5, The Committec recommeridç that the Temporary Trusteeship Com-
mitiee be composed as follows: SOUTH WEST AFRICA
i) The five States mentioned by name in Article 23;
Article23.which are at present administering Mandated Territories
(Australia, Belgium, NewZealand and the Union of South Africa);
(iii) any other States to which may be allocated the administra-
tion of tenitories detached from enemy States as a result of the
Second World War, uith 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 administenng
and non-adrninistering rnembcrs. (It issuggested that arecommenda-
tion be made to the Assembly that the Netherlands be elected on
account of her long experience in the administration of dependent
territories.)
Duratio%of theTemeoraryTrusteeshi$ Cornmittee
6. The Committee recommends that the tenure of the Temporary
Trusteeship Committee should cease when, through the conclusion of a
sufficientnumber of trusteeship agreements, the conditions in Article 86
have been iulfiiled.
Section 3:Provisional Agenda forthe Temporary Trusteeship Committee
- -
I.Selection of a temporary Chairman in accordance with English
alphabetical order of States represented.
2. Adoption of temporary Rules of Procedure governing selection of a
Cha3. Adoption of the Agenda.
4. Selection of aChairman and other Officers.
5. Adoption of Rules of Procedure.
6. Recommendat.ionto the Secretay-General on the staff required by
the TemporaryTrusteeship Cornmittee.
7, Consideration, at the request of the General Assembly or of the
Secunty Council, ofany tmsteeship agreements submitted to the United
Nations for approval.
8. Recommendations to the General Assembly as to the steps to be
takento expedite in the spirit of Article 80, paragraphs I and z,the
initiation and preparatian of tmsteeship agreements in accordance with
the provisions of Articles 75,77 and 79. "th a view to the early con-
clusion of trusteeship agreements for submission to the United Nations
for approval.
9. Problems arising from the transfer of functions in respect of
existing mandates from the League of Nations to the United Nations.
ro. Special problems which will anse if the United Nations itself is
designated asan administering authonty.
II.Preliminary discussion of the following matters for eventual
decision by the Trusteeship Council:
(a) Rules of Procedure forthe Trusteeship Council, with special
reference to:
(i) arrangements for the examination of reports;
(iii) the rnethodofcommunicatingobservations to the General
Assembly (or the Security Council) and to the administering
authority. DOCUMENTSFILED BY ETHIOPIA AND LIBERIA
469
(b) the questionnaire to form the basis of annual reports;
(cl arrangements for visits to trust territoies;
(d) procedure for obtaining the assistance ofthe Economic and
Social Counciland of the specialized agencies.
12. Formulation ofa draft Agenda for the first meeting ofthe Tnistee-
ship Council.
13.Recommendation to the General Assembly for the establishment
of the Trusteeship Councilas soon as the necessary conditions have been
fuifdled.
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 r of the Charter, the
Temporary Tmsteeship Committee adopts the oUowing Rules ofPro-
cedure:
Rule I.Sessions
The Temporary Trusteeship Committee shall meet at the seat of the
United Nations for as rnany sessionsand at such times as may be found
necessary. The date and the duration of such sessionsshall bedetecmined
in such a way as to facilitate the worof the United Nations.
Rule 2.Oficers
The Temporaxy Trusteeship Committee shall elect, at the beginning of
each session,a Chairman and aVice-Chairman.The Chairrnan and Vice-
Chairman shall hold officeuntil the corresponding elections take place
at the beginning of the following session. These elections rhalbe con-
ducted by the rnethod ofsecret ballot.
In the absence of the Chairman, the Vice-Chairman shall take his
place.
Rade3. Secretarint
The Secretary-General of the United Nations shall act in that capacity
for the Temporary Tmsteeship Committee; he may authorize a deputy to
act on hjs behalf.
Rule4. Languages
The des regarding the use of languages shall be the same as those
adopted by the General Assembly for its own use.
Rule 5. TechnicalExjbert's
The Ternporary Trusteeship Committee may seek the advice of in-
dividual techical experts, or establish commissionsof 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 shall be drawn up by the
Secretary-General in consultation with the Chairman of the Committee
and shaIIbe communicated to the rnemberç together with the notice con-47O SOUTH WEST AFRICA
vening the Committee. The first item on the provisional Agenda shallbe
the adoption of th(: Agenda. Nomally 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 members
shall constitutea quorum.
Rule 8. Votilzg
Al1 dccisions or recommendations ofthe Temporary Trusteeship 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 proposal, a
second vote shall be taken at the nest meeting. If tliis also results in
equality the proposal shall be regardcd as lost.
A statement of minority views mai be appended to a report or recom-
mendation of the Committee at the request of any member.
Rule g. Pttblic ifMyeetings
The Cornmittee shall determine in each instance, in accordance wiih
the nature ofthe Agenda, whether the meeting shall be private or open
to the public. At the closc of each private meeting, the Committee shall
issue a communique through the Secretary-General. AH meetings of
sub-cornmittees and of commissions of technical experts shall be held in
private.
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.
Copiesof records relating to non-strategic areas shall be communicated
to the General Assembly, and those relating to strategic areas to the
Security Council.
Rrde II.Interim Poaers
In so far as the Temporary Trusteeship Committec undertakes the
functions of-the Trusteeship Council, it shall mnke use of such rules of
procedure, concerriirigthe IormuIation of questionnaires, the examination
of reports from administering authorities, the esamination of petitions,
arrangements for visits to trust territoriesand the method of communi-
cating observations to the General Assembly (or the Security Council)
and the administering authority, asit shallhave prepared for submission
to the Trusteeship Council I. The Cornmittee shall perforrn such other
functions asmay be provided for inthe trusteeship agreements or as may
be assigned to it by the General Asssmbly or the Security Council,
including the expedition and considcration of draft trusteeship agree-
ments and the preparation of recommendations thereoii for submission
to the General Assembly or the Security Council.
Rztle12. Relaliosts with OllzBodies
The Committee shaI1,when approprinte, avajl itselof the assistance of
theEconomic and Social Council, of the specialized agencies, and of ans
Cf. ItemII intheProvisional Agenda,T'arIII, Chapter IV, Section 3 56). DOCUMENTS FILED BY ETHIOPIA AND LIBERIA 47 r
regional bodies which rnay be separately established,inregard to rnatters
with which they rnay respectively be concerned. It shall invite represen-
tatives of these bodies, when appropriate, to attend the meetings of the
Cornmittee.
Rule .13.Amendmeats
These Rules of Procedure may be modified by the Cornmittee. Nor-
mally a vote shall not be taken until four days after the proposa1 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 of the Councilto the General
Assembly at least fifteen dayi before the regular annual session of the
General Assembly.
Rule z
Special sessionsmny be helclas and where occasion may require, by
decision of the Tmsteeship Council or at the request of a majority ofits
members. A request for a special session may be made by any mernber
of the Couilcil and shall be addressed to the Secretary-General of the
United Nations, who shall con~municate the request to the other mem-
bers of the Council. On notification by the Secretary-General that a
majority of the membershave concurred, the President shallrequest the
Secretary-General to cal1 a special session.
Rule 3
Each session shall be held at thc scat ofthe United Nations unless in
pursuance of a previous decision of the Council, or of a majority of its
members, another place is designnted.
Rule q
The President of the Trustei:ship Council shallfixthe date of the first
meeting of a special session and shall notily the members through the
Secretary-General at least thirty days in advance of the date of such
session.
II.AGENDA
Rule 5
A provisional Agenda for <:vers session shall be drawn up by the
Secretary-General in consultation with the President and shaI1 be com-
rnunicated to the members together witli the notice convening the
Trusteeship Council.
Rule 6
The provisional Agenda shall include:472 SOUTH WEST AFRICA
(a) al1items proposed by the Tmteeship Council at a previous
meeting;
(b) al items proposed by any Member of the United Nations;
(c) all items proposed by the General Assembly, the Security
Council, the Economic and Social Council, or by a specialized
agency; and
(dl ail items or reports which the President or the Secretary-
General deem Iiecessary to put beforethe Council.
Rule 7
The firstitem on the provisional Agenda ofany meeting ofthe Trustee-
ship Councilshallbe the adoption of the Agenda. Supplement No. 4-PCITCI4
Summary Record of Meetings
No. 3
Saturday, I December 1945
THIRD MEETING
HeM on Friday, 30 November 1945 at 2.30 p-m.
Chairman: Mr.Guillermo Belt (Cuba)
Continuation of Discussion of Sectionz,Chapter IV of the Report
Th Chairmanopened the meeting by inviting the Delegates who
objected to this Section of the Report by the Executive Committee to
submit alternative proposais.
Mr. Franic (Yugoslavia), after some introductory remarks, read the
statement which has since been circulated as document PC/TC/3.(See
below.)
MT.Franic (Yugoslavia) explained that the definition of the "States
directly concerned" contained in the above statement was founded on
Articles79 and 86 of the Charter.
Mr. Karnebeek (Netherlands) asked that the Yugoçlav proposa1 be
distributed in written formin order that the other Delegations might
give it their fullest consideration.
The Chairmanagreed that the YugosIavproposa1should be distributed
in written form, as requested.
MY. Kisclw (Byelorussian S.S.R.) stated that, in his opinion, it was
unwiseto createa temporav organ. Callingthe attention ofthe Delegates
to the objectivesmentioned in Article 7he said that everyspeaker had
' expressed the wish that the trusteeship system should be brought to life
as soon as possible and he urged that the mandatory powers shouid
stThe creation of the Temporary Tmteeship Committee would not
salve, but hamper, the solution of the basic probIem: there was no time
limit for this temporary organ. His delegation was in complete agree-
ment with the Governrnent of the Soviet Union concerning the question
of the legality and constitutional basis of the Temporary Tmsteeship
Committee.
Mr. Riaz (Egypt) agreed that from the legalstandpoint MY.Groinyko's
view that the Temporary Trusteeship Committee was unconstitutional
was absoluteIy 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 prûctical
reasons. Aftera careful study of the merits of the proposal, he was con-474 SOUTH WEST AFRICA
vinced that the Temporary Trusteeship Committee was not desirable,
The Trusteeship Couiicil could be established as soon as one or two or
more trusteeship agreements had heen concluded.
Turning to the United States memorandum of 27 September, in con-
sideration ofthe question of "States directly concerneci", he found that
no definition was made in that memorandurn. 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 tothe General Assembly
for approval. The Trusteeship Council could then be brought into exis-
tence. The United Nations were in an extremely favaurable position to
achieve 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 agrecments.
In this connection, reference was made to.the provision for a l'rustee-
ship Committee in Committce Ion the General Assembly. He thought
that this Committeecould be empowered by the Gcneral Assembly to
consider draft trusteeship agreements with the assistance of a subcom-
mittee set up expressly for this purpose whose composition would bear
close resenil~lance to thaof the Trusteeship Council as laid down in the
Charter.
Alr. Pqvlton (United Kingdom) expressed appreciation of the proposal
put forward by the Delegate for Yugoslavia and recalled that MY.
Cueech-Jones had declarcd on the previous day thatthe United Kingdom
was not wedded to aiiy particular method and would be glad to consider
other proposais.He would not go into a detailed discussio on the
Yugoslav proposa1 for the time being, but he asked to have time for a
close study of their plan ivhich was to be circulated in written forrn.
He did riot agree with the contention that the Temporary Trustceship
Committee was necessarily unconstitutional; he woiilcinot,however, go
into the argument. There was some misunderstanding of the contention
that there was a gap in the Charter.The problem was briefiy that, on the
one hand, no State could administer trust territories until trusteeship
agreements had been approved, while, on thc other hand, as the General
Assembly had ta have the advice of a Trusteeship Council, no trust .
agreements could be approved until there was a Trusteeship Council. If
the Yugoslav proposa1 were suitable, the United Kingdom would give it
serious consideration.
On the point, raised by the Delegate for Egypt, that the mandatory
powers should corne forward with trusteeship agreements, Mr. Yoynton
asked what authonty icfoulddeal tvivitthem, ivhether 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 Committeewas recommended as such a body and would be
more akin to the Trusteeship Council than an ad hoc committee of the
Ceneral Assembly. That was apoint, hoivever, to be considered further.
MY. Loflez (Philippine Commonwealth) urged the importance of main-
taining respect for the Charterand confidence in it. It should be protected
and guarded against any attempt to read into it anything which the
framers of the document didnot have in their minds. He saiv in the plan
for the Temporary Trusteeship Committee an atternpt to make use of
Article 22 to read a new intention into the Charter and ddr. Gromyko IIOCUMENTS FILED Bi'ETHIOPIA AND LIBERIA 475
had given admirable expression to the hopes of the subject peoples.
MY. G~een (United States of America) agreed with the Delegate for the
United Kingdom that it would be difficult to rnake detailed comment on
the Yugoslav proposa1 asearly as tomorrow. Hc mas, however, grateful
to the Yugoslav Delegate for introducing this novel plan to solve the
legal dilem~na.
He did not tliink that the Temporary Trusteeship Committee was, in
f-ct, unconstitutional because there was unquestionably ü gap in the
Charter. The Recommendation for the Temporary Trusteeship Com-
mittee inthe Report could still be used as a bacis for discussion.
illuRiaz (Egyyt) feared that he might have been misunderstood by
the DeIegate for the United Kingdom. Quoting Article 85, he said that
the power of reviewing trusteeship agreements rested with tlie Genernl
Assembly which could act without the Trusteeship Council. aloreover,
the Charter provided that the representatives on the Trusteeship Council
should be chosen by the States hlembers, and there was nothing to
prevent them from nominating the sarne persons to represent them on an
ad hoc subcommittee. 'I'hiscoinmittee wouId then be as expert as thc
Trusteeship Council itself.If there were any doubt as to the legality of
the Temporary Tmteeship Committee, it should be abandoned.
MY. Orls (Bclgium) stated that, since the decisions to be made would
have far-reaching influence, the Delegates should be given sufficientime
to study the matter.
Te Committee decided to postpone further discussion of this issue
until after the weekend. It waa pointed out, however, that it \vouldbe
possible meanwhile to discuss section 5 of Chapter II',and it was agreed
to hold the meeting scheduled for Saturday, IDecember, at 5 p.m.
The meeting rose ai4.45 $.m.
DELEGATION OF YUGOÇLAVIA :
SUGGESTIOS FOR THE FORMATIOS OF A TRUSTEESHIP COUNCIL
The difficulties mentioned by the Executive Committee in section 2,
parngraph 2, ofits report could be overcome iri the spirit of thc Charter
without the formation of a temporary Truçteeship Committee, which in
the opinion of thisDelegatiori ~ould be an unconstitutional organ.
Of the three categories of territories mentioned in Article 77 of the
Charter, the territories underP, and C remain uncertain. Only the terri-
tories under A (mandatcd territories) are certain.
This Delegation is of the opinion that a necessary step would be 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 arc members of the United Nations Organization,
to submit declara.tions of their willingness to put the territories over
which they have so far been actingas administering authorities uiider the
trustecship system of the Charter, andat the same time to make known
mhich polvers they consider as States directly concerned with these
territories. In the meantime on the hasiç of the above recommendation
and in their desire to settle this problem as soon as possible the present476 SOUTH WEST AFRICA
mandatory powers would prepare allthat may be necessary in order to
be able to respond to the invitation of the General Assernbly 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 concerned". The Yugoslav
Delegation is of the opinion that in the first 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 concerned.
From that moment until the second part of the first session, theStates
directly concerned 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 cornmittee of the
General Assembly to examine these declarations of the present manda-
tory powers could usefuliy be formed.
agreements a Trusteeship Council could then be formed. The need for a
Temporary Trusteeship Committee would thus be eliminated.
If the mandatory powers could at the sarne time submit drafts of the
trusteeship agreemt:nts for the territories concerned, these couId perhaps
also be discussed during the first part of the first session of the Genera1
Assembly. This would be very desirable in the interest of the speedy
solution of this important 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 fur approval,
so that at this stage the Trusteeship Council could already be formed. Annex J)
Supplement No. 4. PC/TC/~I
Summary Record of Meetings
No. g
Monday, IO December 1945
NINTH MEETING
Weld on Saturday, 8 December, I 45, at 10.30 a.m.
Chairman: fiZr.Guiilenno aelt (Cuba)
I. Continuation of discussion of section 5, chapter IV, of the Report by
the Executive Committee.
The Chairmala opened the meeting by asking the Delegates to consider
two remaining amendments for the Provisional Rules of Procedure, and
thus ta conclude the discussion of section 5,chapter IV, of the Report.
Decision: The Synan amendment (PC/TC/I~),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 (PC/TC/IS). MY. Green(United States of Amerka) pointed out
that the word "educational" whichwas the word used in Article 88 ofthe
Charter,had been replaced bythe word "cultural" in the Syrian amend-
ment. MY.Zeineddine (Syria) explained that the word "cultural" had
been used as having a \vider meaning than the word "educational".
Wowever, he agreed to use the word "educational" as it was thought to
be closer to the lanpage of the Charter.
Decision: Subject to this changef wording, the Syrian amendment to
Rule 30 was adopted.
2. Appointment of a Drafting Subcommittee.
The Committee agreed that a Drafting Subcommittee should beformed
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 discussiooisection2, chapter IV, ofthe Report, and
of PC/TC/3, PC/TC/6, PC/TC/8, PCITCIIO. PCITCIII, PC/TC/z4 and
PC/TC/q.
TheSecretariat proposed that: the discussion ofthese various documents
should be divided into three parts:478 SOUTH WEST AFRICA
(1) The terms of resolution to be recommended to the General Assembly.
This discussion would take place on the basis of the Yugoslav pro-
posa1 (PC/TC/G), but would also take into account the relevant parts
of the United States and United Kingdom proposals (YC/TC/IO
and PC/TC/z j).
(2) The question whether there should be any ad hoc cornmittee, and if
so, what shoukd be its compositioii and functions. This discussion
would take place on the bnsis of the Belgian proposa1(PC/TC/z4), but
would also take into account the Philippine proposa1 (PC/TC/S) and
the relevant parts of the Yugoslav, United States and United King-
dom proposals (YC/TC/3,PCJTCJIO.2nd PC/TC/z5).
(3) The United States proposa1 for providing a degree of continuity
between the Tvlandatessystem and the trusteeship system (PC/TC/II).
MY. Franic (Yugoslavia) (the full text of his speech has been cir-
culated as PC/TC/2g) .made a statement in explanation of the proposa1
contained in PCjTCJ6. He drew attention to the omission of provision
for a declaration by the exiçting mandatory powers; he did not object
to its inclusion, but the practical stepsto which his proposa1 referred
were more essentiaf. Another omission was the definition of the "States
directly concerned". This phrase would have to be defined in relation to
each territory separately,and thereforethere was no value in an ribstract
definition.
In the case of each mandated territory, the States directIy concerned
would include the niandatory poïver and the States mentioned by name in
Article 23 of the Charter. These powers should immediately enter into
direct negotiations, in the course of whicli they might decide to invite
other States to take part.
bloreover, any other Rlember of the United Nations claiming to be
direct$ concerned could ask to be allomed to participate in the negotia-
tionç. The resuIting trusteeship agreement would be submitted to the
General Assernbly, or to the Security Council, according to ïvhether the
Statcs directly coricerned had or had not designatcd the tcrritory in
question as a strategic area.
It should therefore be possible for the mandatory powers, without
waiting for a resolution of the General Assernbly, to enter into contact
with theStates meritioned by name in Article 23 ofthe Charter. With the
good-will of al1 the interestcd partiesthe Trusteeship Council could be
formed without any delay. This Delegation could not agrec that any
temporary orean was necessary.
Turiiing to the question of the fulfiIment of the conditions for the
creation ofthe Trusteeship Council, he considered that this could be done
as soon as one trusteeship agreement hacl been concluded.
The balance provided for in Article86 of the Charter was not a con-
dition for the existence of therusteesliip Council, but simply a measure
according to which the composition of the Truçteeship Council would be
determined whcn it reached its full dcvelopment. He could ~iot con-
templnte 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 bjr the
Delegate for Czechoslovakia.
Mr. Green (United States of Amenca) (the text of his speech has been DOCUMESTS FILED BY ETHIOPIX AXD LIBERIA
479
circulated as PC/TC/3o) expressed the willingness of his Delegation to
accept the Yugoslav proposa1 with certain modifications. At the same
timc, he could not admit that the proposa1 for a Temporarp Trusteeship
Cornmittee had been unconstitutional or impractical.
He suggested that the first paragraph of the 'r'ugoslav proposal
(PCJTCI6) should be amended in such a way as to mention al1four of the
objectives stated in Article7Gof the Charter instcad of only one of them.
In paragraph 2,the reference to chapter XI of the Charter should be
deleted, since iio delay in the establishment of the trusteeship system
could in any wny affect the obligations arising from chapter XI.
\Vith respect tu paragraph 3, he felt that the language there useclgave
an incorrect impression that there was some legal differentiation be-
tween category ((5)and categories (b)and (c)of temtories referred to in
Article 77 of the Charter.
The language of paragraph 4 might also be revised to nvoid the im-
plication that the mandatory powers had some çyecial responsibility for
delay.
In the text of the resolution itself in PC/TC/6, he suggested two
changes :
I. In lines I and 2,the substitution for the present language of "calls
upon the States directly concerned in mandated territories including
the mandatory power to undertake";
z. The substitution of less rigid language for "the second part of the
First Session of the General Assernbly" at the end ofthe draft resolu-
tion.
He was gratificd that the Delegate for Yugoslavia had not incorporated
in his drafta definition of the "States directly concerned". It would not
be proper for eit:herthe Preparatory Commission or the General As-
sembly to undertake such a definition. This miist 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-
mitted.
He questioned the Yugoslav position on the jnterpretation of ArticI86
of the Charter. Those who drafted it at San Francisco had made itvery
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 noi enongh tnisteeship agreements for this balance to
be established on conclusion of the First Session of the General Assembly,
and who would Iciokafter such territories as had been placed under the
trusteeship systern in the absence ofthe Trusteeship Council.
In reçponse to the request of certain Delegates, itwas agreed that the
speeches of the Delegates for Yugoslavia and the United States of
America should he circulated hefore the next meeting.
On the proposa1 to adjourn the meeting, several points of order were
raised.
.MT.Saba (Egypt) explained that his views had not been accurately
represcnted in the United Kingdom proposa1 (PC/TC/z5). It was not the
view of the Egyptian Delegatian that an ad hoccornmittee of the General
Assembly should necessarily be composed in conformity with the pro-480 SOUTH WEST AFRICA
Assernbly to have full freedom in this matter.wished the General
MY. Lopez (Philippine Commonwealth) wished to record his opinion
that the General Assembly had no authority whatsoever to initiate
wasslimited to non-strategic areas, and the decision as to which tem-y
tories should be designated as strategic areas rested, in his view, with
the Secunty Council.
The meetingroseut 12.50$.m. Annex E
Summary Record of Meetings
No. IO
Wednesday, 12 December Ig4j
TENTH MEETING
Held on Monday, IOUecernbcr 1945 ,t IO a.m.
Chairman: hlr. Guillermo Belt (Cuba)
Continuation of discussion of section2,chapter IV, of the Report by the
Executive Commit tee
MY.Pom~~t(France) made a statement of theFrench point of view on
the whole problem before the Committee.
Referring to the questions contained in section2, chapter IV, he said
that the juridical basis for setting up the trusteeship systemwas to be
found in Articles ro, 16 and 24 and 86. The General Assembly had
authorityto take al1necessary action for bringing the trusteeship system
into existence. The General Assenibly had also the power to create the
necessary subsidiary organs. It was not indispensable to have the
Trusteeship Council.
Ofthe three categories of tenitories mentioncd in Articl77,there was
no ground for distinguishing th(: mandates from the other two categories
or for devising a çpecial regime for the mandates.The text of theresolu-
tion to be recommended to the General Assernbly should therefore reIate
to al1tIiree kinds of territories. It was desirable that territories detached
from the enemy States should corne under the trusteeship system assoon
as possible.
The Trusteeship Councilwould be a common instrument of the General
Assernbly and the Security Courzçil.Thcrefore itwas necessary frorn 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 aworking document.
SirV. T. Krish~aamachari (India) called attention to the fact thrit the
Comrnittce was already in substxntial agreement on two points: thatthe
existing mandatory powers should be asked to express their readiness
to place the mandated territoriesunder trusteeship, and that they
should be invited to prepare terms of trusteeship agreements. He did not
think that the General Assembly was itself competent to receiït: the
draft agreements. The most cxpedient way woiildbe to setup an ad hoc
committee to deal with these draft agreements.
The agreements wouId consict of three parts: (1)essential features of
the trusteeship system, (2)provision for similar treatment for mandates
falling in each different class, and(3) special provisions for individual
trust tcrritories.Then the prohlem of selecting strategic areas \rfould
await the approvril of the Security CounciI. The quickest way to make the482 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 comrnittee.
The Preparatory Commission should therefore ask the General As-
sembly to set upthe ad hoc committee at the same time as it invited the
mandatory powers to express their rcadiness and prepare terms of agree-
ment. This Uelegation thought thatthe recommendation of the Executive
Committee was well within the provisions of the Charter, but would
welcome agreement along the lines of the papers circulated.
Mr. Creech-Jones(United Kingdom) endorsed the views of the Delegate
for India. He was prcpared to takc up the Yugos1:iv proposa1 as the
basis for discussion, but stressed that it should not be taken to rnean
that the recornnlendation 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 inost anxious for
the early establishment of the trusteeship system.
He would like to repudiate the innuendo toward the end of the iîrst
page of the Yugoslav proposal; he would like that innuendo to be
removed from the proposal. In fact, the intention of the United Kingdom
was already made clear in recent statements by its Foreign Secretary,
He \vas in full agreement with the criticismsand the modifications of
the Yugoslav proposal, made by the United States Delegation, and he
hoped that the Yugoslav Delegation would accept these modifications.
dlr. Orls (Belgium) stated that the Belgian proposal (PC/TC/zq) was
presented with a view to facilitating a solution. They had taken the
Yugoslav proposa1 into account. The chief merit of the Beigian proposal
was that it would lead to a specdy application of the Charter, siliceit
would allow of the Trusteeship Council being established without delay,
according to the desire expressed in the Charter, without having recourse
to the creation of one or other provisional bodv, 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 proposal by
Belgium, his Delegation would be prepared to consider a proposal on the
lines suggested by the United States of America and the United Kingdom
(PC/TC/ro and PCITC125.)
Mr. Wilson (New Zcaland) pointed out that previously the New
Zealand Delegation had resemed their position on the question. His
Delegation was now ready to take part in the diçcussion on the basis of
the Yugoslav proposal, 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 temtories under trusteeship, and he hesitated
to agree that a teniporary committee of any kind was necessary.
MY. Ovts (Belgium), refening to the difficulty of keeping a too rigid
tirne-table,said that the committee would have nothing to lose if it
proceeded on the assumption that any State who declared its intention
of placing a temtory under the trusteeship system would do so in al1
good faith. The Belgian Delegation doubted ïvhether the Tmsteeship
Council could be hrought into being on the basis of one single trust
territory.
MY. Xichols (Union ofSouth Africa) stated that on al1material points
the proposals seerned to be identical. But the time factor had not been DOCUMENTS FII.ED BY ETHIOPIA AND LIBERIA 483
suficiently consiclered, not only because of the difficulties of the restricted
staff availablein small 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 praposal would be insufficient. He
preferred that the United Kingdom modification "at the earliest possible
opportunity tliereafter" should take the place of the original Yugoslav
wording "the second part of the First Session of the General Assembly".
He likewise depiecated the iiinuendo in the Yugoslav proposa1 which
was both unnecessary and untrue.
fiIr. Gromyko (Soviet Union) suggested that the so-called ad hoc com-
mittee was i~ifact the same as the temporary trusteeship comiiiittee,
with no differencc 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 ïvithout any action being taken. It was, however,
unnecessary for him to repeat the reasons, which he had given on many
previaus occasions, why it would be wrong to establish substitute organs.
Ifthe mandatory powers really adhered to the Charter, they should
come to the General Assembly and state that thep were ready to place
territories under trusteeship, and at the same time present trusteeship
agreements.He was in favour of the original Belgian proposal (PC/TC/z4)
but he noted that the Relgiiin Delegate had somewhat changed his
position.
It would be estremely undesirable and even dangerous to deviate from
the Charter. It would establish a very bad precedent if the proposed
temporary body were set up. LVith a bad precedent, other violations of
the Charter might follow and a succession of violations would lead to
serious consequences. He nskect those who spoke in favour of asubstitute
organ to reconsider the matter and not to press for anysubstitute organ.
The Yugoslav proposal would not cause inconvenience to the man-
datory powers. The Soviet Union was in full agreement with that pro-
posal.
MY.Subg (Egypt} spoke ngainst lirniting the freedom of the General
Assembly. It was not right to prescribe for the General Assembly what
advice it should take. Under the suggested composition, the General
Assembly would he advised on trusteeship agreements by the very States
which had concluded thern. The General Assembly should be left free in
seeking advice.
MY. Wellington Koo (China) thouglit that a11Dclegates would agree
that the problem under consideration was one of short duration. The
Chinese Delegation was in accord with the Yugoslav proposa1 subject to
certain amendments.
First, he endorsed the change suggested by the United States Delega-
tion to use the phrase "States directly concerned" for parties who should
be asked to proceed to negotiate trusteeship agreements.
Secondly, the Chinese Delegation also wanted the mandatory powers
to declare their intentions of placing the mandates under the trusteeship
system.
Thirdly, in thc last sentence of the draft recornmendation 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 Cornmittee was divided on the question of484 SOUTH WEST AFRICA
setting up a temporary or ad hoccommittee. 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 committet: in view of thefact that the General Assernbly would
have a main trusteeship committee dealing with trusteeship rnatters in
any case. If trusteeship agreements were submitted in the interval be-
tween the first and second parts of the First Session of the General
Assernbly, that main committee could decide what was the best thing to
do at the second part of the First Session of the General Assembly,
It 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 leaving the question of a
ternporary or ad hoc committee forthe General Assembly itself to decide.
If this plan could be adopted. it would answer a11questions.
He, finally, suggested that the Committee might find it helpful to
appoint a subcomniittee to consider the various proposals on this ques-
tion and recommend to the full Cornmittee a new drüft based on these
proposals.
- -
Decision: The Committee accepted the proposal made by MY.Kooand
appointed a subcomrnittee composed of the Delegates for Belgium, the
Soviet Union, Syria, the United Kingdom, the United States of America
and Yugoslavia.
The meetijrgrose ut12.5$ j.m. Annex F
Summary Record of Meetings
NO. 15
Saturday, 22 December 1945
FIFTEENTH MEETING
Held on Thursday, 20 December 1945a ,t p.m.
Chairman: Mr. Guillermo Belt (Cuba?
Discussion of recommendation ofthe subcommittee on truçteeship
(PC/TC/41)
MY.Pranic (Yugoslavia). as Chairman of the subcommittee, said that
the recommendation (PC/TC/qr)was the result of full agreement of al1
the members of the subcommittee. After long and serious consideration,
they had corne to the conclusion that no recommendation should be
made for the creation of any temporary organ. The document PC/TC/6
was taken as the basis of discussion in considering what steps were
necessary to bring the trusteeship system into being as smn as possibIe.
There were some differences between the original document PC/TC/6and
the document finally agreed upon, PC/TC/~I.
In paragraph 2of PC/TC/~I,the subcommittee had decided to include
al1of the 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 undcr trusteeship.
In paragraph 4, it was emphasized that immediate action couid only
be accomplished with respect to mandated territories.
Paragraph 5had been carefully redrafted so as to avoid any implication
that the mandatory powers might try to delay the establishment ofthe
trusteeship syçtem.
In the text of the resolution itself, the phrase "in concert with the
other States directIy concerned" was inserted in the third lineof the
first paragraph, because, while mandatory powers must be the first to
take practical stepç, the otherStates directly concerned 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 some members thought it
necesçary to emphasize that further practical steps might be needed to
expedite the trusteeship system than those mentioned in the preceding
paragraph. If the General Assernbly 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.
Ali the members of the çubcommittee were motivated by a desire to
have the trusteeship system of the Charter expedited. They al1worked486 SOUTH WEST AFRICA
in good will and CO-operation. The factthat the disputed matters were
finally settied with unanimous agreement was a happy sign that the
United Nations coutd march on to success with nothing insoluble.
MY. Green (United States of America) associated his Delegation with
the foregoing remarks. The recommendations fellwell within the limits
of the Charter and provided for legal equality between al1States directly
concerned. The eniphasis on the mandatory powers \vas made purely
from a practical standpoint. The second paragraph of the resolution met
the desire of the United States Delegation to dmw attention to the need
of machinery for expediting the establishment of the system.
Ilfi.Poynton (United Kingdom) said that the United Kingdom in
accepting the recommendation, did not admit thatthe original Esecutive
Committee proposa1 was defective or unconstitutional. The ernphasis
had been placed on the mandatory powers for purely practical reasons,
although itwould be technically possible for a non-mandatory colonial
power to act in respect of oneof its terr-tories.
He supported the additional paragraph, as there would be a gap be-
tween the first and second part of the first session of the Generai As-
sembly when some 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 might like to use. The document PC/TC/25 indicated the
recommendations the United Kingdom would bring fonvard.
MT. Bailey (Australia) said his Delegation would support the recom-
mendation,but wished to reserve its position on several of thestatements
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-
istering non-mandated territones were as certain asStates administering
mandates; therefore, they also could take action in placing any kind of
dependent territory under tmsteeship. Articles 75 and 77 of the Charter
did not make any distinction between mandated and other territones.
Secondly, in paragraph z, page 2. there was an implication that
Article 80 imposed an obligation on States administering the territories
mentioned in Article 77 to place those territories under trusteeshipThe
tems of Article 75 and 77 made it clear that the placing of aterritory
under trusteeship would be avoluntary act.
Thirdly, the phrase "calls on", since it hadaspecial connotation in the
Charter (e.g.Articles 33 and q~),was unfortunate in this context.
His Delegation cordially associated itself with the language of the
resolution, but had to insistthat the language of the prearnblc was not
within the letter and spiritof the Charter; the action of a mandatory
would be as voluntary as that of any State putting any kind of dependent
territory under trusteeship.
Mr. Loridan (Belgium) said that his Delegation would liked to have
gone further in eIaborating procedure for the examination of tmsteeship
agreements, and reserved its position in subsequent discussions of this
question. His Government 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 FILE11 BY ETHlOPIA AND LlBERIA 487
:\Pr.Arichlls (Union of South Africa) reserved the position of his
Delegation until the meeting of the General Assembly, because his
country found itself inan unusual position. The mandated territory of
South \fTestAfrica was already a seli-governing country, andlastyear its
legislature had passed a resolution asking for admission into the Union.
His Government had replied that acceptance of this proposal 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 occqsion if by so doing it would imply that South
M'est Africa was iiot free to determine itsown destiny. Bis Govemment
would, however, do everytliing in its power to implement the Charter.
ilIr. Lofie(PhilippineCommonwealth)reminded the Committee of the
paper which he liad submitted (PC/TC/8/Add. 1). He still maintained
that rccommendations should éiemade to the Security Council as well as
to the General Asse~nbly. The trusteeship spstern involved the peace and
security of the world, and Iherefore the Security Council was primanly
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 stratcgic areas. For these reasons,he was reluc-
tant to vote for the subcommittee's recommendation.
ikfr. l,irils(New Zeaiand) announced that he would vote for the
report, on the understanding that his Delegation would be free to discuss
its wording further in the General Assembly.
MY.Manuzlsl~y (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 80 of the Charter. Nevertheiess, he would support the proposal.
MY. Zeineddine (Syria) drew the attention of the Committee to the
fact that the omissionof reference to "just aspirationsJ'had been removed
at the instance of the Synan 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 Afi-ica. The door was left open for tlie satisfaction of their
aspirations because the Charter did not specify that cvery territory in the
three categories meiitioned in Artide 77 was ta corne under trusteeship.
He reserved the Syrian point of view on the methods to be used by the
General Asemblp in inaugurating the trusteeship çystem. 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 ~vhichmight be brought under trusteeship.
Mr. Wellington Koo (China) thought the wording of the resolution was
susceptible of jmprovement, but refrajned from moving amendments.
The Delegates forAustralia and the Philippines had made some per-
tinent observations. He wondered whether the words "for approval" in
the resolution implied approval by either the CeneraI Assembly or the
Security Council as this was not quite clear in the text, but seemed to be
the only logcal meaning. He associated himself with the dislike expressed
by nnother nele ate forthe word "preferably".
He was satis i!ed that there would be ample opportunity for the
Chinese Delegation to express its views in the GeneraI Assembly.
APr.Gromyko (Soviet Union) approved of the report, but in view of the488 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
committee.
MY. Ponsot (France) observed that the French position had been
stated inPC/TC\33,and he reserved the right ofhis Delegation to espress
it in the General Assembly. He would vote in favour of the proposal.
The delegate for Relgiurn explained that hc had not intended to make
any reservation on the text of the subcommittee's recommendation, but
only on the question of subsequent procedure.
MY. fianic (Yugoslavia) thanked his colleagues on the Cornmittee for
the tributes which they had paid to his chairmanship of the subcom-
mittee, and accepted them in the name of the subcommittce as a whole.
Decision: The Cornmittee adopted the report by the subcommittee
(PC/TC/~I)by twenty-eight votes to none. As a result of this decision,
the recommendation contained in PCITCI~I 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 r of chapter IV of
the Report by the Executive Committee likewise disappears, and the
report by Committce 4 to the Preparatory Commission consists soleIy of
thetext of PC/TC/,+Iand thetext of PC/TC/341Rev. x.
The Delegates for Turkey and the Union of South Africa asked that
their abstention in the above vote should be placed on record,
MT.Poyntoa (UnitedKingdom), as representative of the host country,
moved a vote of thanksto the Chairman and the Secretariat, including
the interpreters. Thiswas seconded by Mr. GronryRo(Soviet Union) and
supported by 1Mr.Loper(Philippine CommonweaIth), who remarked 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 raiçed on the form in which the Committee's action
with regard to the Report by the Executive Cornmittee should be placed
on record. A motion bv 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 inCommittee 4's report,
was rejected.
MY. Bailey (Australia), speaking as Chairman of the Drafting Com-
mittee. explained thatthe form which it had been decided to give to the
Report by the Preparatory Commission precluded the adoption of this
proposal.
The Ckirman undertook that the significance of the adoptio1.iby the
Cornmittee of the recomrnendation contained in PC/TC/~I ivould be
explained, not onIy 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 Cornmitteerose at12.30 a.m. Annex G
Original:Englisli
PC/TC/~I
zo December 194j.
RECOMMENDATION 08 SUBCOMMITTEE ON TRUSTEESHIP
DRAFT RESOLUTION FOR THE GENERAL ASSEMBLY
Taking into account that the United Nations has assumed the duty
under Chapters XII and XII1 of the Charter to establish a system of
international triiçfeeship;
Considering that the system of international trusteeship is being
established to promote, in particular, the objectives prescribed in
Article 76 of the Charter:
"la) to further international peace and security;
(b) to promote the political, economic, social, and educational
advancement of the inhabitants of the trust tenitories,and their
progressive development towards self-government or independence
as may be appropriate to the particular circumstances of each
territory and its peoples and the freely expressed wishes of the
peoples concerned, and as may bc provided by the terms of each
trusteeship agreement ;
(c) to encourage respect for human rights and for fundamental
freedoms for aii \vithout distinction as to race, sex, language, or
reIigion. and to encourage recognition of the inter-dependence of
the peoples of the worId; and
(d) to ensure equal treatment in social, economic, and com-
mercial matters for al1 Members of the United Nations and their
nationals, and also equal treatment for the latter in the adrninistra-
tion of justice, without prejudice to the attainrnent of the foregoing
objectives and subject to the provisions of ArticleSo."
Cofisideringthat 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, depnves
the populations of such territories as may be brought under the trustee-
ship system of the opportunity of enjoying the advantages ansing from
the implementation of these principles;
Considering that under Article 77 of the Charter there are three
categories of temtories to which the trusteeship system applies, two of
whidi are for the time being iincertain (namely 13and C of Article77)
and that immediate action can he taken only in respect of territones
under mandate (namely A of ArticIe 77);
Consideringthat Article So of the Charter provides that there shall be
no delay or postponement of the negotiation and conclusion of agree- SOUTH WEST AFRICA
490
ments for placing mandated and other territories unrler the trusteeship
system as provided for in Article 77; and
Considsring that the trusteeship system of the Charter cannot im-
mediately be brought into being without the close CO-operation of the
States Mernbers ofthe United Nations now administering the territories
under mandates.
The Pveparntory Commission of the United Nations recomrnends the
General Assembly to adopt the following resolution:
"The General Assembly of the United Nations calls on the States
adrninistering terntorics in accordance with the Leagueof Nations
Mandates to iindertake practical steps, in concert with the other states
directly concerned, for the implementation of the provisions ofArticle 79
of the Charter providing for the conclusion ofthe agreements on trustee-
ship terms for each territory to be placed under the trusteeship system,
in order to submit these agreements for approval preferably not later
than the second part of the firçt session of the General Assembly.
Those trusteeship matters which \vil1 be taken up by the Ccneral
AssembIy at the firspart ofits firssessionwith the purpose of espediting
the establishment of the trusteeship system, will be considered by the
Trusteeship Cornmittee of the Ceneral Assembly, using the methods
which the General Assembly considers most appropriate for the further
consideration of these matters." III.DOCUhIENTS FILED BY THE AGENTFOR THE
GOVERNMENT OF SOUTHAFRICA1
FILED U'ITH THE REGISTRAR OF THE COURT UNDER COVER OF A LETTER
DATED 30 JUKE 1965
I. In the aforementioned RiIemorandum Applicants refer to the fol-
lowing documents introduced by Respondent during the course of the
oral proceedings on 24 May 1965 ,iz.:
(1)Document Xo. PCITCIII, dated 4 December 1945 ,eing a document
filedby the delegation of the United States of America, which docu-
ment contained proposais for amendmcnt of the report of the Exec-
utive Comrnittee of the Preparatory Commission concerning the
functions of the proposed Temporary Trusteeship Comrnittee.
(2)Document Xo. PC/TC/3o, being the verbatim record of a speech by
Blr.Green, delegate for theUnited States of America, ai the Ninth
meeting of Committee 4 cifthe Preparatory Commission on 8 Ue-
cember 1945.
\\:ith regard to the said documents Applicants state in their Jlemo-
randum :
"The essence of Responderit's arguments with respect thereto lies
inthe significance sought to be attributed to the introduction of a
proposed United States amendment (PCITCIII) to the Report of the
Executive Conmittee of the Preparatory Commission relating to
the duties of the proposed Temporary Trusteeship Committee and
to the fact that such amendment was not thereafter considcred or
debated. The inference (gratuitously and erroneously) drawn by
Respondent frorn this circumstance appears to be that the amend-
ment was abandoned for lack of support or that, insome other man-
ner, tlie incident is relevant to the issue of survival of obligations
of international accountability of mandates notwithstanding dis-
solution of tlie League of Nations."(IX, pp. 401-403.)
Applicants then proceed to submit what they term "Findings", pur-
ported to be based on the contents of certain iurther Preparatory Com-
mission Documents, copies of bvhichare annexed to their Memorandum;
and, finally, they subrnit a "Conclusion", purported to be based ori their
SO-called"findings".
SeePart lV, h-oIrS,1).604intri.?.492 SOUTH WEST -4FRIC.4
2. Respondent willin the further paragraphs ofthis Reply demonstrate
that there is no justification for Applicants'mrrient (in the staternent
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 certainmaterial respects Applicants'
so-called "findings" are wrong aildjor 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 PCITCIII were not discussed by Committee 4
of the Preparatory Commission at its Ninth meeting, held on
8 Decembrr 1945, nor at its Tenth me et in^,held on IO December
1945 , as thait6e Committee "agreed" up& an agenda and that at
the said meetings discussions took place in accordance with the
so-called "agreedYagenda" ;
(b) that when Committee 4 at its said Tenth meeting referred the pro-
posais then beforc it to asubcommittee, consideration ofthe establish-
ment of the proposed Temporary Trusteeship Committee itself was
deferred, and further, that, consequently, consideration of the
United States proposai reiating 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 proposals contained in document
PC/TC/II lost al1relevance.
In the premises, as will be shown, Applicants' final "conclusion"
regarding this aspect of the case has no 'valuewhatsoever.
In the course of this dernonstration it will be necessary to refer in some
detail to the proper sequence of events in Committee 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 hlemorandurn (Annexes A-G)since al1such documents
are,and have at al1tirnes 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
Ternporary Trusteeship Committee to-
"carry out certain of the functions assigned in the Charter to the
Tnisteesliip Council, pending its establishment". (Document PC/
EX/1r3/Rev. 1,12 Nov. 1945 ,. 55 videIX, p. 392.)
The said report contemplated that, in the exercise of its interim
powers, the Ternporary Trusteeship Comrnittee would undertake the
functions of the Trusteeship Council regarding supervision ofterritories
submitted to the tmsteeship systern. (Document PC/EX/rrj/Rev. 1,
12 Nov. 1945 ,. 58vide IX, pp. 392-393.)
No provision was made in the said report for the supervision of
Mandates not broiight under Trusteeship. The only function proposed
for the TemporaryTrusteeship Cornmittee relative to mandates \vas to-
"advise the General Asçembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilitieç hitherto exercised under the mandate system".494 SOUTH WEST AFKlCA
zation". Respondent has also indicated that Blr. Nicholls' words cannot
be interpreted as implying thnt there was an obligation to report. (Vide
lx, PP. 395-398.)
When the second meeting of Cornmittee 4 adjourned on 29 November
1945, the Chairman suggested that-
"those D~:legations that objected to the recommendation of the
Executive Committee [i.e., the recommendation for the establish-
ment of a temporary trusteeship cornmittee] should iiitroduce, if
they wished, an alternative resolution to be considered at tlie begin-
ning of the next meeting ...". (Sumrnary Record, PCITCIz, p. 5.)
5. At the next, the Third, meeting of Committee 4, on 30 November
1945, Alr. Franic of Yugoslavia came forward with a proposal which, as
he stated, would eliminate the need for a temporary trusteeship com-
rnittee.
In brief his proposalwas that the General Asseinbly should-
"invite the mandatory powers, who are Members of the United
Nations Organization, to submit declarations of their willingness to
put the territories orrer which they have so far been acting as ad-
ministering authorities undcr the trustceship system of the Charter
...". (Summary Record, PCITCJ4,p. S.)
His proposa1 further involved the appointment of-
"an ad hoc committee of the General Assembly to examine these
declarations of the prescnt mandatory powers.. .". (Sumnzary
Record, PCITCJ4, p. 9.)
At this meeting the representative of the United Kingdom, hlr. Poyn-
ton, açked for time to studythe l'ugoslav proposal, but at the sarne fime
reiterated tlie view already cxpresçed by his delegation at the earlier
meeting of the Committee, namely that the establishment of the pro-
posed Temporary Trusteeship Cornrnittee would not be unconstitutional,
and he stated reasons for favouring the creation of such a body rather
than an ad hoc corrimittee of the General Assembly. (Summary Record,
YCITC14. P. 7.)
And 31r. Green of the United States said that-
"He did not think that thetemporary TrusteeshipCommittee was,
in fact,unconstitutional because therc was unquestionably a gap in
the Charter. The recomrnendation for the temporary Trusteeship
Committee in the Report could still be used as a basis for discussion."
(Summary Record, PC/TC/4, p. S.)
The Committee decided to postpone further discussion of this issue
untila later meeting so as to enabie the delegates to study the matter.
(Summary Recoud, PC/TC/4, p. S.)
The Cornrnittee at its next meeting, the Fourth Meeting, onIDecember
1945,allomed hlr. hlanuilsky of the Ukrainian S.S.IZ.and >Ir. Bailey of
AustraIia to s~ieakon the Yugoslav proposai and then proceeded to deal
with other matters contained in the report of the Esecutive Committee.
(SzrmnzaryRecord, l'C/TC/j,p. IO.)
6. The question ofthe establishment of atemporary trusteeship com-
mittee and the alternative proposa1 by Yugoslavia for the appointment
ofan ad hoc Committee of the General Assembly stood over until the DOCUMENTS FILED BY SOUTH AFRICA 495
Ninth Meeting of Cornmittee 4 on 8 December x945, the Committee in
the meantime attending to other matters.
During this interval, however, certain States filedwritten pl-oposals
for ameridment of the recommendation for establishment of the tem-
porary trusteeship cornmittee and for the appointment of an ad hoc
Cornmittee.
Respondent will in the following paragraphs deal briefly with these
proposals.
7. Proposal O/ the delegation of the Philipfiines, Summary Record
PCITCI8 daled4 December 1945,
The Philippines put fonvard three alternative propoçals, namely,
(i)the creation of a joint preparatory Committee of the Security
Council and the General Assembly on Trusteeship: It was intendcd
that this Committee would CO-ordinate the preliminary functions
of the Security Council and the General Assernbly;
(ii) the creation of a "Committee on Trusteeshipof thesecurity Council".
This Committee was intei~ded to assist the Security Council in per-
forming its functions regarding trusteeship both before and after
tlieestablishment of the Trusteeship Council;
(iii)the creation of a "Preparatory Committee on Trusteeship of thc
General Assernbly". It was intended that this Cornmittee 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 three proposals in any respect rcferred to mandated
territories not brought into the trusteeshipsystern.
8. ProPosds of tlzeDelegation of theUnited Statesof America.
The United States of America filed two separate proposals, both
bearing thedate 4 December 1945 and numbcred respectively YCITClro
and PCITCIII.
The first-mentioned of the said proposals is that referred to by AppIi-
cants in their hlemorandum under the heading "Findings" in the para-
graph lettered(a), and was hi:aded-
"Suggestion for the formationofa Trusteeshi+ Co~ncil basedupotz the
$roposal olthe delegationO/ Yugoslavia (PC/TC/3)."
The proposals contailied i~i this document came very near to the
proposals put fonvard by the delegation of Yugo~la\~ia.Like the Yugo-
slav proposa1 it recommended that the General Assembly should invite
mandatory powers to submit declarations of their willingness to enter
into trusteeçhip agreements. 1.talso proposed tliat the Ge~ieralAçsernbly
should create an ad hoc Cornmittee or authorize its Trusteeship Com-
mittee to create an ad hoc Sub-Cornmittee. The said ad hoc Committee
or ad hocSub-Cornmittee would then esercise 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' proposals was contained in document
No. PC/TC/II headed-
"Proposed Amendment to part III, Charter IV, Section 2,para-4g6 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
1965IIX, PP. 401-402).
In this document the United States drew attention to the fact that the
report of the Executive Cornmittee made no provision for any organ of
the United Natio~~sto carry out the functions of thePermanent Mandates
Commission.
It recommended that-
"In order 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
territoriesto trusteeshipthe Temporary Trusteeship Committee (or
such acoinmittee as isestablished to perform its functions) and later,
the Trusteeship CounciIshould be specificaiIy 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 Cornmittee could-
"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 terri-
tories under mandate as have not been placed under the trusteeship
system by means of trusteeship agreements, and untiI such time as
the Trusteeship Council is established, whereupon the Council will
perform a similar function". (Document PC/TC/II, p. 2.)
It is clear that the United States of Arnerica realized that unless
specific pro5rision was made to that end, there would be no powers of
supervision in respi:ct of mandated territories not submitted to trustee-
ship. And the United States delegation sought to bring about suchpro- .
vision by recommending that before and until the Trusteeship Council
could function a ternporary body, be itthe proposed Tempocary Trustee-
ship Committee or the proposed ad hocCommittee, should "be specific-
ally empowered" to exercise supervisory powers over mandates not
converted to trusteeship, and that the Trusteeship Council should "be
specifically empowered" to perform a similar function once it came to be
established.
As \vil1 be shown hereinafter, the reasoning in Applicants' Memo-
randum indicates that theydo not fully appreciate the significance of the
proposals contained in the documents PC/TC/IO and PCJTC~II.
9. Proposal of thedelegaEion ofBelgitrm(PCITC124, dated 5 December
1945) -
The Belgian delcgation fntimated that it was in agreement with the
recommendation that the General AssernbIyshouId invite the mandatorv
powers to lodge declarations of their willingness to place their mandated
temtories under the tnisteeship system. It, however, had mIsgivlngs
regarding the establishment of an ad hocCommittee and made proposals
which intended to avoid the establishment of any temporary body. DOCU~lEPiTS FILED BY SOUTH AFRICA
497
IO. Proposal!O#thedele,oatioO# the United Kingdom (PCITCIz5, dated
5 December196 5,).
In this document the delepation of the United Kingdom stated that in
putting forward the proposals contained therein itshould not be under-
stood as accepting the arguments advanced bv certain delegations that
the establishment of a Temporary Trusteeship Committee would be
unconstitutional. It expressecl the view that there was little essential
difference betwcen the proposais of the Executive Comrnittee and the
proposa1 of the Yugoslav delegation. Roth schemes made provision for
the establishment of a tempoiary body: in the one scheme a subsidiary
organ appointed under Article 22 of the Charter (i.e., the Temporary
Trusteeship Comrnittee), and in the other scheme an ad hocCommittee
of tlie General Assembly. Neither body was specifically provided for in
the terms of the Charter.
The United Kingdom, however, regarded the two schemes asequally
satisfactory and was prepared to agree to the Yugoslav proposa1 if there
Ras generaI preference forit.
The Yugoslsv proposa1 w;is therefore incorporated in the United
Kingdom proposal. whicli prcivided that the General Assembly shouId
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-
rnittee. One of the proposed fiinctions was-
"to advise the General AssembIy on any matters that mi ht arise
with regard to the transfer to the United Nations of any unctions
and responsibilities hitherto exercised under the Mandates System".
(Document PC/TC/zs, p. 4.)
lt is to be noted that the United Kingdom intended the same limited
role for thead hocCommittee relative to Mandates as did the executive
Committee in its proposal for a Temporary Trusteeship Council. Vide
paragraph 3;szrfira.Neither the Ternporary Trusteeship Committee pro-
posed by the Executive Comrnittee nor the ad hocCommittee roposed
by tlie United Kingdom would have powers of supervision over h andates.
XI. At the Ninth Meeting of'Committee 4 of the Preparatorv Commis-
sion the said Comrnittce had before it the Report of the Executive
Committee as well as the aforementioned proposals of the various
delegations.
The heading of the relevant part of tlic summary record of this meeting
reads as foilows:
"Continuation of discussion of Section 2, Chapter IV, of the
Report [i-e., the section containing the proposal for the Temporary
Trusteeship Committee], and of PC/TC/3 [the Yugoslav proposal],
PCJTCIG[the Yugoslav draft resolution], PCITCJB[proposal of the
Philippines], PC/TC/xo [the proposal of the United States], PC/
Tc111 [the second proposal of the United States], PC/TC/z4 [the
Relgian proposal], and PC/TC/zg [the proposa1 of the: United
ICingdom]."
Under the said heading there appears the follorving:
"The secretariat proposed that the discussion of these various
documents should be divided into three parts:4g8 SOUTH \\'EST AFRICA
r.the terms of resolution to be recommended to the General As-
sembly.This discussion would take place on the basis ofthe Yugo-
slav proposa1 (PC/TC/6), but would also take into account the
relevant partsofthe United States and United Kingdom proposals
(PC/TC/IO and PC/TC/z5).
2. The question whether ttiere should be any ad hoc cornmittee, and
if so, what should be its composition and functions. Tliis discus-
sion would take place on the basis of the Belgian proposa1
(PC/TC/24), but would also take into account the Philippine
proposa1 (I'ClTC18) and the relevant parts of the Yirgoslav,
United States and United Kingdom proposals (PC/TC/3, PCI
TC/ro, and PC/TC/z5).
3. The United States proposal for providing a degree of continuity
between the Xandates System and the trusteeship system PC/
TC/rr)."
Applicants saIr in their Memorandum that the said "procedures were
suggested and agreed upon". [Applicants' bIemorandurn para. (b]under
the heading "Findings".]
The summary record, however, merelgr mentions that this procedure
was proposed by the Secretariat, and does not Say that it was agreed
upon. It is,in any case, difficiilt to see how the three interrelatedsubjects
could be discussed in separate compartments, and, in fact, they n-ere not
so discussed.
In this regard Applicants sny in their Memorandum:
"During the course of the meeting the United States Delegate
made the statement in PC/TC/3o (the second document introduced
by Hespondent on 24 May 1965). As is evident, from the agreed
agenda descril-iedabove, as well as from the substance of the state-
ment itself, the discussion was limited to par(r)of the agenda and
relatedonly to Documents PC/TC/6 and PC/TC/25." (Memorandum.
para. Tc),undi:r the heading "Findings".)
This statement is not correct.
The very first speaker at this meeting, hlr. Franic of Yugoslavia,
disregardcd the order of discussion proposed by the Secretariat. He
commenced his speech, which is recorded verbatim in document PC/
TClzg, as follows:
"The Yugoclav DeIegation has submitted the document PC/TC/3
containing suggestions for the formation of the Trusteeship Council.
This document, which was subsequently amplified by the Delegrt-
tions of the United States and Belgium, can serve, we believe, as
the basisfor discussion. Furthemore, the Delegation of YugosIavia
has submitted the draft resolution concerning the same matter
(PC/TC/6). That draft resolution coiild serve as the basis for the
decision which has to be taken." (PC/TC/z9, p. 1.)
Itwill be recalled that the document PC/TC/3, which the Yugoslav
delegation suggested should serve as the basis of discussion,recorded that
delegation's criticism of the Executive Committee's proposa1 for the
establishment of a Ternporary Trusteeship Committee, which in the
Opinion of the Yugoslav delegation would have been an unconstitutional
step. That document also contained the Yugoslav proposa1 that hlanda- DOCUMENTS FILED BY SOUTH AFRICA 499
tories be invited to make declarations of their willingness to put their
mandated temtories under the Trusteeship system, and furthemore
recomiriended the appointment of an ad hoc comrnittee of the General
Assembly (vide para. 5, sztprn).
And &Ir.Franic indeed discussed not only the resolution recorded in
document PC/TC/6, but also the proposals contained in document
PCITCI3.
He stated that the Yugoslav delegation was "strongly opposed to the
creation of any temporary organs" (PC/TC/2g,p. 31, he explained the
procedure recommended by the Yugoslav delegation for the specdy
establishment of the Trusteeship Council \vithout the necessity for
creating a Temporary Trusteeship Committee, and he stated in this
regard that his delegation- L
"accordingly expects that: the Trusteeship Council will be formed
not later than during thc second part of the first session of the
General Açsembly, without any provisional or similar organs which
would be in conflict wviththe spiriofthe Charter". (PC/TC/2g, p. 3.)
He went on to Say that the Trusteeship Council coiild be established
as soon as any one territory had been placed under the Trusteeship
system and stated-
"In our opinion, the Tmsteeship Council cannot be formed so
long as there are no territories under the trusteeship system, because
there isno object forit. Biit the Trusteeship Coiincilcan and must
be formed as soon as there is at least one terntory which has been
placed under the trusteeship system, thrit is tSay,as soon as there
is an object in regard to wliich the Trusteeship Council can and must
esercise its supervising functions."(PC/TC/zg,p. 5.)
Immediately after the speech of the representative of Yugoslavia
Mr. Green of the United States of America delivered thcspeech recorded
in document PC/TC/3o, and it is cleafrom the test thereof that also he
departed from the order of discussion proposed by the Secretariat.
Indeed, he was forced to depart from that order in view of the line taken
by Nr. Franic of YugosIavia. Ile said in this regard:
". ..1 am very grateful indeed to the Delegate of Yugoslavia for
his esplanation of the Kesolution, document No. 6. 1 was not at al1
clear in my own mind as to the exact relationship betwveen this
lXesolution and his original paper [i.e., PCITCI3J which was a more
general outline of principles. 1 should like primarily to address
myself to the text of the I<esolution,but secondarily to some of the
remarks and evplanations which he made of that text, as far as
1could take those esplanations down in mgrnotes." (PC/TC/30, p. 1.)
3Ir.Green tlien referred to the paper which the United States had
submitted [i.e., PCjTClro] as ;irevision ofthe original paper submitted
by the Yugoslav delegation ji.e., PC/TC/3] and he statcd:
"1 hope the I'ugoslav delegation dicl not object to the liberties
which we took in changing some of the details in his paper. hly
delegation still feels theriçnothing objectionable whatever in the
Report of the Esecutive Committee proposing the establishment of
a Temporary Truçteeship Committee; it still seems tous that that is50° SOUTH WEST AFRICA
a perfectly ccinstitutional method of procedure and a perfectly
practical method of procedure, and we are willing to agree to that
proposal if we cannot agree on any alternative; but we are quite
wiliing to explore any other alternative arrangement and are quite
willing, as 1 indicated, to accept the proposals of the Yugoslav
delegation on the lines which 1 have indicated." (PC/TC/3o,p. 1.)
Mr. Green then dealt with the texi of the Yugoslavproposed resolution
and thereafter commented on the explanations made by Mr. Franic in
support of his delegation's proposal.
In the course of suchcomment he dealt with the Submissions of the
Yugoslav delegaiion that the conclusion of one trusteeship agreement
would suffice for the establishment of the Trusteeship Council and that
the creation of the proposed Temporary Trusteeship Committee \vas not
necessary.
He demonstrated that this contention raised certain constitutional
difficulties, and saiin conclusion:
"Suppose that 1 am correct and the Yugoslav delegate unfortu-
nately 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 al1but one agree-
ment concludedbefore the General Assembly. What then? \Vholooks
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 tvould have been
the advantage of the "ad hoc" Cornmittee which the Yugoslav
original paperproposes [i.e., PC/TC/3], ifit were authorized, as Our
revised paper [i.e., PC/TC/IO]proposes, to be empowered to carry on
after the session of the first Assembly, if you do not get a sufficient
nurnber of agreements. 1merely raised that question because 1think
it is a serious one if any interpretation of the basic conditions for
the establishment of the Council are correct." (PC/TC/3o,p. S.)
Immediately afti:r Mr.Green's speechMr. Saba of Egypt referred tothe
document filed by the United Kingdom, PC/TC/z5. and dealt with the
proposa1for the creation of an ad hoc Committee instead of a Temporay
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 itis perfectly clear that Applicants are wrong
when they state iii their hlemorandum [paras. (c) and (d) under the
heading "Findings"] that at this meeting, i.e., the Ninth Meeting of
Cornmittee 4, the delegates discussed only part (1) of the agenda sug-
gestedby the Secretariat,and that it was only at the next, i.e., the
10th Meetingof Cornmittee 4 on IO December, that "the discussion rnoved
ionvard into consideration of part (2)of the agreed agenda, viz., docu-
ments PC/TC/IO, PC/TC/zqand PCJTCIzj". (AppIicants Memorandum,
para. (d), under heading "Findings".)
And Applicants are equally wrong in stating that the discussion by
Mr. Green ofthe United States was "lirnited tpart (r)ofthe Agenda and
related only to documents PCjTCi6 and PC/TC/25". (Memorandum,
para. (c), under heading "Findings".) DOCUMENTSFILED BY SOUTH AFRICA
501
hir. Green, in fact, discussed the legality and practicability of giving
effect to the proposa1 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 proposal contained in document PC/TC/3 as explained by
Rlr.Franic, and he discussed the proposa1 contained in the document
filed by the United States. PC/TC/IO,including the proposa1 for the
establishment of an ad hoc Cornmittee and the powers suggested forthat
ComMr.Green did not mention the proposals contained in the United
States document PC/TC/II, and it is indeed strange that he did notdo so
when he drew attention to the functions proposed for the Temporary
Trusteeship Committee and for the alternative body, tlie adhoc Com-
mittee, and when he expressed concern regarding supervision of terri-
tories which would be subrnitted to trusteeship before the Trusteeship
Council could be formed. Why did he not then make mention of the
matter dealt witli in document PC/TC/II, i.e., the supervision of man-
dated territones after the dissolution of the League, which the United
States in the said document suggested should be camed out by the
proposed temporary committee orby thealternative body, the proposed
ad hoccommittee, and later by the Trusteeship Council itself?
12. The discussions at the Ninth Meeting of Committee 4 were con-
tinucd at the Tenth meeting of the Committee on IO December xg45.
The first speaker at that meeting was Mr. Ponsot of France who is
reported to have "made astatement of the French point of view on the
whole problem before the Committee". (SunamaryRecord, PC/TC/y,
at p. 24.1
hlr. 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" (Summry Record,PC/TC/p, 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 hio.
lemTCby3.referring to various provisions of the Charter of the United
Nations and recomrnended the establishment of-
"an ad hoc committee to ttecalled the PrefiaralovyTrusteeshi Cam-
rniftce, tcany out, under the direct authority of the Rnerai
Assembly, such preliminary functions as are necessary for the
creation, at the earliest possible datof the Tmsteeship Council".
(Document PC/TC/33, p. 5.)
It is significant that the French delegation dicl not intend that the
ad hocCommittee proposed by them should have any functions relative
to Mandates other than the following:
"to advise the Assembly cinany matters arising out of the transfer
to the United Nations of theçe functions and responsibilities whicli
onginate either in the Mandates system, or in earlier international
agreements or instruments". (Document PC/TC/33, p. 5.)502 SOUTH WEST AFRICA
Generally with regard to the functions of this ud hoc Comtnittee, the
French proposal contained the following:
"This Preparatory Comrnittee, which willin no sense exercise the
functions and powers devolving on the Trusteeship Council under
Articles87 and 88 of the Charter, willhave no mission other than
that of helping to bring about as quickly as possible, under the
authority of the Assembly, these conditians under which the Trustee-
ship Council can be set up." (Uocument PC/TC/33, p. 6.)
Other delegates at this meeting of Committee 4 also discussed the
advisability of cçtablishing either a ternporary committee or an ad hoc
committee, aiid dealt with the functions intelidcd to be assigned to the
said bodies aiid the question whether the establishment of such bodies
would be constitutional.
Thus the representative of India, hlr. Krishnamachari, favoured the
establishment: of an adhoc Committee although hc expressed the opinion
that "the recornrnendation of the Executive Committee [i.e., for the
establishment. of aTernporary Trusteeship Council] was well within the
provisions of the Charter". (SummaryRecord, PC/TC/3z, pp. 24-25.)
Mr. Creech-Jones of the United Kingdom stated that he-
"was preparecl to take up the Yugoslav proposal as the basis for
discussion, but stresscd thaitshould not be taken to rncan that the
recornmendation of the Executive Comrnittee was unconstitutional".
(SummaryRecord,PC/TC/sz, p. 25.)
Mr. Orts of Belgium said that the Belgian proposal contained in docu
ment PC/TC/q, which made no provision either for a temporary or an
ad hocbody,
"would allow of the Trusteeship Council being established xvithout
delay, according to the desire expresscd in the Charter, without
having rt:course to the creation of one or other provisional body,
the desirnbility of legality of which was riglitly or wrongly, opened
todiscussion". (SzrmmaryRecord,PC[TC/y, p.25.)
The delegate of New Zealand, hIr. Wilson, supported the Yugoslav
proposal, which included the appointment of an ad hoc body, subject to
the amendments si~ggestcd by the United States and the United King-
dom, and he said that-
"he hesitated toagree that a temporary Cornmittee ofany kind was
necessary". (Surnmry Recoud, PC/TC/32, p.25.)
Mr. Gromyko of the Soviet Union said that the proposed ad hoc com-
mittee was iiifact the same as the ternporary trusteeship committee
recommended by the Executive Committee, and his delegation opposed
both proposais as being unconstitutional. (Summavy Record, PC/TC/32,
p. 26.)
The Chinese delegate, IllrIVeIlington Koo,
"pointed out that the Committee was divided on the question of
setting up a temporary or ad hoc cornmittee". (Summary Record,
PC/TC/y, at p.27.)
He expressed the view that it was not absoiutely necessary to set up
a ternporary or an ad hoc cornmitteeiiiview of the fact that the General DOCUMENTS FILED BY SOUTH AFRICA 93
Assembly would have a main trusteeship committee dealing with trustee-
ship matters.
He thereforc urged that-
"use should be made of the main trusteeship committee of the
General Assernbly, thus leaving the question of atemporary or ad
hoccommittee for the General Assembly itself to decide. Ifthis plan
could be adopted, it would answer al1questions."
And, in conclusion, he suggested that-
"the Comrnittee might find it helpful to appointasub-cornmittee to
consider the various proposals on this question and recommend to
the full Committee a nen7 draft based 011these proposais". (Sum-
mary Record,PC/TC/32, p. 27.)
This proposa1 was accepted and a sub-cornmittee appointed composed
of the delegates for BeIgium, the Soviet Union, Syria, the United King-
dom, the United States of Anierica and Yugoslavia. (Summary Record,
PC/TC/32, p. 27.)
Applicants in their Memorandum refer to the Appointment of this
Sub-Cornmittee and say-
"Consequently, neither at the Ninth nor Tenth meeting of Com-
mittee 4 was part (3)ofthe agreed agenda reachcd. Consideration of
the United States amendment relating to the duties oftheTemporary
Trusteeship Committee clearly was irrelevant in anv event, in-
asmuch as consideration of establishment of the proposed Ternpo-
rary Trusteeship Committee itself had been deferred". (Memo-
randum, para. (e),under the heading "Findings".)
There is no substance in these contentions. In the first place, ahas
been demonstrated above, the delegates did not follow the order of dis-
cussion suggested by the Secretariat, Right from the start of the Ninth
Meeting, and through the Tenth Meeting, the delegates discussed the
proposa1 for the establishment of a Ternporary Trusteeship Committee
and the alternative proposals for the establishment of an ad hoc Com-
mittee. They dealt with the constitutional positionofthe said proposed
bodies and the advantages which they çaw in having either the one or the
other of these bodies.
It itrue that neithetheUnitedStatesdelegate, onheranelegate,
referred to the proposals contained in the United States paper, document
PC/TC/II. But that, precisely, is the remarkable point of the whole
discussion, and particularly of the attitude of the United States Rep-
resentative, Mr. Green. He defended the proposa1 for the establishment
of a Temporary Trusteeship Committce as being "a perfectly constitu-
tional method of procedure and a perfectly practical method of pro-
cedure", and stated that his delegation was "willing to agree to that
proposal if we cannot agree on aiiy alternative". (Document PC/TC/30,
p. 8 and vide para. II,sztpra.)
And he dealt with the advantages of having either a Ternporar~
Trusteeship Committee or an ad hoc Committee. (Document PC/TC/30,
p. 8 and vide para. II,supra.)
The question iinmediately arises: why did he not mention the further
functionsrelative to Mandates which his delegation intended and had put5O4 SOUTH WEST AFRICA
fonvard in document PC/TC/II for whichever of these Cornmittees came
to be established?
Clearly, in the view originally taken by the United States when it
subrnitted 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 Cornmittee itself had been deferred" and that,
accordingly, "consideration of the United States amendment relating to
the dutiesoftheTe~nporaryTrusteeshipCommitteeclearlywasirrelevant".
Nothjng of the sort happened. The original proposal by the Executive
Cornmittee for such a temporary body stood throughout these discus-
sions, together with the aIternative proposa1 for an ad hocCommittee.
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 proposa1 in document PCITCJXIregarding 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 proposa1as expressed in document PC/TC/II
was that the said function should be performed by-
"the Temporary Trusteeship Comrnittee (or such a committee as is
established to perfom its functions)." (Document PCITCIII, p. r
and vide para. 8, supra.)
And the United States itself had proposed in document PC/TC/rothat,
if jnçtead of thestablishment of atemporary Comniittee, the alternative
suggestion was accepted of establishinp an ad hoc Committee, that
Committee sliould exercise the functions intended for the Ternporary
Trusteeship Committee. (Document PC/TC/xo, p. I and vide para. 8,
supra.)
The whole of the comment contained in para. (8) of Applicants'
Rfemorandum, under the heading "findings", is therefore unsound.
13.As far as Respondent is aware, there is no record of the delibera-
tions which took pIace in the sub-committee relative to the proposals for
the creation of a temporary Committee or,alternatively, an ad hoc Corn-
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 he
sub-cornmittee reported to the said Committee.
Mr. Franic of Yugoslavia. the Chairman of the sub-committee, ex-
plained that-
"After Iong and serious consideration, they had corne to the con-
clusion that no recomrnendation should be made for the creation of
any temporary organ." (SumnzaryRecord,PC/TC/4z,p. 38.)
He then dealt with the recomrnendation of the sub-comrnittee, which
is setout in document PCITCI~I and which reads as follows: DOCUMENTS FILIID BY SOUTH AFIUCA
5O.5
"The Preparatory Comniissionof the United Nations recomrnends
to the General Assembly to adopt the following resolution:
The General Assemblg of the United Nations calIs on the States
administenng territones iri 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 79ofthe Charter providing for the conclusion of the agree-
ments on trusteeship terms for each territory to be placed under the
trusteeshipsystem, inorder to submit these agreements for approval
preferably not later than the second part of the first sessionof the
General Assembly.
Those trusteeship matters which \vil1be taken up by the General
Assemblv at the first art of its first session with the Durnose of
expediting the establishment of the trusteeship system, ;il1 Le con-
sidcred bv the Trusteeshiw Committee of the General Assemblv.
usi& th; rnethods which'the General Assemblp considers rn&f
appropriatefor the further consideration of these matters." (PC/
TCI41,pp. 2-3.)
Various delegates addressed the meeting and discussed the arnended
proposal.
A number of delegates spoke in support of the proposal, but some
delegations reserved the right to express views on certain particular
points in the General Assembly.
The South Afrjcandelegate, Rlr. Nicholls, reserved the position of his
delegation until the meeting of the General Assembly. (SummaryRecord,
PC/TC/42. p. 40.1
hlr. Green of the United States also spoke in support of the new pro-
posal. (Summary Record. PC/TC/4z, pp. 38-39.) Again it is significant
that he made no mention of his Government's earlier proposa1contained
in document PC/TC/II relative to supervision of mandates after the
dissolution of the League.
The proposa1 of the sub-cornmittee was adopted by Committee 4 by
28 votes to none, Turkey and the Union of South Africa abstaining.
(SummaryRecord,PC/TC/4z, p. 4r.)
The proposal of the sub-cornmittee 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 Mernorandum:
"The United States proposed Amendment to Section 2 of Chap-
ter IV of the Report of the Executive Committee, contained in
document PC/TC/II (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.
Tt is true that, inasmuch as the final recommendation adopted by
Committee 4 made no provision either for a Temporary Trusteeship
Committee or for an ad hocCommittee, the United States proposa1 that
whichever of these Cornmittees was to be appointed shouId have super-
visory powers over mandates. fell away. But Applicants have lost sight
of the fact that the United States proposal contained in document
PC/TC~II went further. It also recommended that "the Trusteeship
Councilshould be specificallyenipowered to receive the reports which the50~ SOUTH WEST iiFRIC.4
mandatory powers are now obligated to make to the Permanent Man-
dates Commission". (PCITCIII, p. 1.)
The proposa1 of the United States was that the proposed temporary
cornmittee orthe proposed ad hoc Committee should supervise inandates
not placed under the trusteeship system "until sucli time as the Trustee-
ship Council is established whereupon the Council will perform a similar
function". (PC/TC/II, p.2 and vide para. S, 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 rnade no provision for an interim body, did not at all
detract from the United States proposal in PC/TC/II that the Trustee-
ship Council should be specificdly empoweredto supervise mandates not
adrnitted to Trusteeship as soon as the Council was established.
And itis iiideed strange that this proposal, contained in document
PC/TC/II, was never referred to by the United States delegate at any
of the meetings of Committee 4, or thereafter; nor Ras it referrecl to by
any other delegation.
14. In vieiv of wliat is stated above relative to the so-called "findings"
in Applicants' Memorandum, it is clear that the folIowing "Conclusion"
in the Memorandu~n has no substance, viz. :
"The UnitedStatesproposal (document PC/TC/II) wasnot reached
in the course of discussions at the Ninth Meeting of Committee 4.
No significance whatever is attributable to the fact thatthe United
States Representative made no reierence to it then or thereafter,
except that it became irrelevant by reason of the procedure adopted
by the Comn-iittee." (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 proposa1
not having been reached in the course of diçcussion at the Ninth Meeting
of the Committee. Nor had theproposa1 become "irrelevant by reason of
the procedure adopted b-ythe 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 proposa1 contained in document PC~TCIII, and the fact that it
was never ralsed in the discussions of Com~nittee 4 of the Preparatory
Commission, therefore remain valid and forceful.
From the contents of document PCITCIII it is clear that theUnited
States delegation realized that, unless specificprovision was made to that
end, the Organs of the United Kations would have no supervisory powers
in respect of rnandnteç not submitted to the trusteeship system.
The United States sought to bring about such specific provisions by
suggesting that the proposed Temporary Trusteeship Committee or the
proposed ad hoc Committee should be "sfiecificalempo~eiered" to çuper-
vise AZandateçuntis luch time as the Trusteeship Council was established,
and that the Trusteeship Council should be "specificnllempowered" to
exercise the same function reIative to mandates not hrought under the
trusteeship systern-as soon as the Council became established.
The fact that the United States delegation at no stage in the discus-
sions of Corninittee 4, or thereafter, reierred to this proposa1 can only
lead to the inference submitted bv Respondent in its argument on 24 May
1965, viz., DOCUMENTS FILED BY SOUTH AFRICA 5O7
"that therc must ha~re been some reason for that and the most
probable reason in the circu~nstances would be discussion between
the United States delegation and other delegations which resulted
in the mattcr being seen in a different light and a proposa1of this
kind not being proceeded with. In other words, hlr. President, ri
situationvery nearly thc sarne in principle as we found inregard to
the first proposa1by China at the Iast meeting of theLeague As-
sembly, which after discussion had to be superseded by another
proposal, leading to the obvious inference that it was clear that the
first onc could not haveobtainedthe necessarysupport." (IX,p. 403.)
This conclusion is also entirely consistent with the attitude adopted
by the United States of Arnerica after the dissolution of the League.
As indicated elsemhere in the oral proceedings, the United States
representative on the Trusteeship Council in 1947. hlr. Gerig, stated
clearly and emphatically that outside of a Trusteeship Agreement the
United Nations had no Supervisory Powers over Mandates. (II, p281;
IX, PP. 452-453.)
Documents submitted to the Court after the closure of the Written Proceedings (Rules of Court, 1946, Article 48)