U.N.O. AND TRUSTEESHIP
By LEONARD STEIN
THE only important organ of the United Nations not yet consti- tuted is the Trusteeship. Council, which is contemplated by the Charter as the !:inch-pin of the Trusteeship system. It has always been assumed that the first territories to be placed under trusteeship would be those under League mandates, and there have been dark hints from Moscow that the delay in the setting up of the Trusteeship Council is to be laid at the door of the Mandatory Powers. But there is no substance in the charge. The Mandatories have, on the whole, behaved virtuously. France showed some hesitation about accepting trusteeship for her mandated territories in Africa, but has now come Into line. In the case of South West Africa, the South African delega- tion explained to the General Assembly why it was proposed to incorporate the territory in the Union, but responded to criticism to the extent of an assurance that the Assembly's views would be invited before the matter was finally closed. Trans-Jordan has been promised independence, while, as to Palestine west of the Jordan, the Assembly was asked to await the results of the Anglo-American inquiry. In the case of all other mandated territories, the States at present in control have committed themselves unequivocally to the acceptance of the trusteeship system. If the Trusteeship Council has not been constituted, the difficulty lies, not in any recalcitrance on the part of the Mandatories, but in the rules of the game as laid down in the Charter, Foreseeing that there might be an awkward gap, the Executive Committee of the Preparatory Commission proposed that the Assembly should be invited to set up a Temporary Trusteeship Committee. The Russian and certain other delegations opposed the suggestion as unconstitu- tional, and it was not pursued. This has not prevented the Moscow New Times from complaining that the delay in the setting up of the Council " shows the strength of dangerous reactionary tendencies." What it does show is that there was some slovenly work in the draft- ing of Chapters XII and XIII of the Charter. In setting forth the composition of the Trusteeship Council, Article 86 starts with " those Members administering trust territories." It follows that there can be no Trusteeship Council until there are some trust territories. There can, however, be no trust territories until " trusteeship agree- ments " have been approved by the General Assembly or, in the case of " strategic areas," the Security Council ; and, before that approval can be obtained, the " terms of trusteeship " must first have been "agreed upon by the States directly concerned." It is at this point that the obstacle-race begins. In the case of any given territory, how are " the States directly concerned " to be identified?
The Charter offer no guidance on the point, and, after prolonged debate in the Fourth Committee of the Assembly, the Rapporteur had nothing more illuminating to say than that " progress need not await a priori legalistic definitions of that elusive phrase, ' States directly concerned.' " In the absence of any generally accepted test, it has devolved upon the Mandatories to make their own guesses as to the States which could be held to be " directly concerned " in each case. According to the Prime Minister's state- ment in the House of Commons on January 23rd, the United Kingdom has made a start by consulting France in respect to Togo- land and the Cameroons, Belgium in respect of Tanganyika, and South Africa in respect of all three. Mr. Attlee added that copies of the draft terms of trusteeship for these territories had been sent—for information only, at this stage—to the U.S.A., the U.S.S.R. and China, and, in respect of Tanganyika, to France. When the trustee- ship agreements are submitted to the General Assembly it will, presumably, still be open to that body to withhold approval on the ground that the States consulted do not include all those " directly concerned." And, since " questions relating to the operation of the trusteeship system " are among the matters for which a two-thirds majority is required, it will be possible for a minority of the Assembly to hold up indefinitely the creation of trust territories and—as a corollary—of the Trusteeship Council.
Another conundrum presented by the Charter relates to the designation of the trust territories to be treated as " strategic areas " and placed, as such, under the jurisdiction of the Security Council. The Charter is silent as to the authority which is to select the " strategic areas." In the Executive Committee of the Preparatory Commission the United States delegation suggested that the initiative should be taken by the Military Staff Committee. This proposal was coldly received. The Military Staff Committee is an organ of the Security Council, and it was pointed out that the Security Council would have no locus srandi in respect of any trust territory until a trusteeship agreement, specifying that territory as a " strategic area," had already been concluded between the " States directly concerned." The position seems to be that when the " States directly concerned " have been ascertained and, having been identified, have agreed that a given trust territory, or a part of it, shall be a " strategic area," then and then only will the Security Council be called upon for a decision as to the approval of the agreement. That decision will, presumably, be subject to the Big Five's rights of veto, since the question will clearly not be " procedural." Once designated as a " strategic area " in a trusteeship agreement approved by the Security Council, the territory will be within the jurisdiction of the Council and not of the Assembly. The result would seers to be that, if any question of substance should arise as to the application of the " terms of trustee- ship," it may be impossible to reach a decision without the unanimous concurrence of the Big Five. It may be permissible to doubt whether the implications of Articles 82 and 83 of the Charter were fully considered by those who drafted thm.n.
One further curiosity of the Charter is that it nowhere says clearly who is to select the " administering authority." It is clear that the
selection must be approved by the General Assembly or the Security Council, as the case may be, but the loose language of the Charter leaves it open to doubt whether the designation of the trustee, as well as the " terms of trusteeship," must have been agreed upon in advance by " the States directly concerned." In the case of the mandated territories the Mandatories have clearly taken it for granted that they will remain in control as " administering authorities." As to ex-enemy territories, President Truman, in his statement on January i4tli as to the future of the Pacific Islands to be taken from Japan, declared that " those which were needed would be kept by the United States as long as was necessary," adding, by way of explanation, that " he meant individual trusteeship, the others being placed under general U.N.O. trusteeship." The President's remarks leave no doubt as to his intentions, but are not notably helpful as a commentary on the provisions of the Charter with regard to the designation of " administering authorities." As to the former Italian colonies, the obscure manoeuvrings behind the scenes suggest that, whatever the Charter may say or omit to say, the allotment of trusteeship is assumed to be a matter for decision by the major States in terms of the pattern of power. In the case of the more advanced group of mandated territories, Article 22 of the League Covenant provided that " the wishes of those communities must be a principal consideration in the selection of the Mandatories." There is no corresponding provision in the Charter.