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The States Directly Concerned: Article 79 of the United Nations Charter

Published online by Cambridge University Press:  20 April 2017

George V. Wolfe
George V. Wolfe*
Affiliation:
College of Idaho
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Extract

Statesmen, politicians, political scientists, journalists, and radio commentators seem to agree on one thing about the United Nations: success or failure depends upon the spirit animating its members. As Eagleton says, “The system [embodied in the United Nations Charter] does not automatically guarantee security to anyone, and whether it will provide peace and human advancement will depend entirely upon the willingness of its Members to coöperate toward these ends.”

Type
Research Article
Information
American Journal of International Law , Volume 42 , Issue 2 , April 1948 , pp. 368 - 388
Copyright
Copyright © American Society of International Law 1948

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References

1 “The Charter Adopted at San Francisco,” in American Political Science Sevue, Vol. XXXIX (1945), p. 942.

2 Art. 79 says: “The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandates by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85.”

3 Documents of the United Nations Conference on International Organization, San Francisco 1945, London-New York, 1945, Vol. 3, pp. 598–600.Google Scholar

4 Same, pp. 604–606.

5 It is only fair to remember, however, that the passages referring to the negotiations on the terms of trusteeships in the Draft Proposal of the Chinese Delegation on International Trusteeship (published May 10, 1945), and in the Amendments of the Soviet Delegation to the United States Draft on Trusteeship (published May 11, 1945), were no less ambiguous, and merely pointed, when compared with the ambiguous phrase proposed by the United States and France, to a wider undefined range of states which should participate in the negotiations on the terms of trusteeships. Instead of “states directly concerned” Par. 5 of the Chinese Draft Proposal used the words “states concerned” (omitting “directly”); and Par. 4 of the Soviet Amendments the words “states which were or are concerned.” Besides the United States, French, Chinese, and Soviet proposals for a’trusteeship system the delegates at San Francisco had before them also a United Kingdom Draft on Territorial Trusteeship (published May 6, 1945), and Amendments to the Dumbarton Oaks Proposals Submitted on Behalf of Australia (published May 5, 1945). The United Kingdom Draft said nothing at all on the procedure to be followed in the making of trusteeship agreements. The Australian Amendments contained a precise rule on this question. “The terms of the mandate” [the word mandate as used here is equivalent to the word trusteeship], said Par. 18(5), “shall in each case be defined by agreement between the General Assembly and the mandatory state.” For the text of the Chinese, Soviet, United Kingdom and Australian proposals for a trusteeship system see same, pp. 615– 617, 618– 620, 609–614, 543–553.

6 Same, Vol. 10, p. 447. For the text of the Working Paper see same, pp. 677–383.

7 Same, p. 476.

8 Same, p. 577.

9 Same, p. 441.

10 United Nations Journal No. 14: Supplement No. 4–A/C/4/6.

11 Same.

12 Report of the Preparatory Commission of the U ited Nations (Preparatory Commission of the United Nations, 1945), p. 49.

13 United Nations Journal of the General Assembly, First Session, No. 10, p. 268.

14 “Proposals by Canadian Delegation for Insertion in Sect. 1 of the Report [of the Preparatory Commission] to the General Assembly” (Jan. 26, 1946), United Nations, General Assembly, First Session, Documents, A/C/4/8.

15 Mr. Nicholls, the South African delegate, made a statement in the sixth meeting of the Fourth Committee (Jan. 25, 1946). United Nations Journal No. 15: Supplement No. 4—A/C/4/7.

16 Same.

17 Art. 85(2): “The Trusteeship Council, operating under the authority of the General Assembly . . . ”;

Art. 87: “The General Assembly and, under its authority, the Trusteeship Council. . . .”

18 See the statements by Mr. Zeineddine (Syria) in. the fifth, sixth, and seventh meetings of the Fourth Committee, Mr. Kouri (Lebanon) in the sixth meeting of the Fourth Committee, Sayid Ali Jawdat al-Ayubi (Iraq) in the sixth meeting of the Fourth Committee, Mr. Mostapha (Egypt) in the sixth meeting of the Fourth Committee, Mr. Eiaz (Egypt) in the seventh meeting of the Fourth Committee, Mr. Lopez (Philippine Commonwealth) in the fifth, sixth and seventh meetings of the Fourth Committee. United Nations Journal No. 14: Supplement No. 4—A/C/d/6; United Nations Journal No. 15: Supplement No. 4—A/C/4/7 and A/C/4/13.

19 Thus Mr. Zeineddine (Syria) in the seventh meeting of the Fourth Committee. United Nations Journal No. 15: Supplement No. 4—A/C/4/13.

20 Mr. al-Khoury had said: “It is evident to our mind that the words directly concerned in Art. 79 of the Charter do include those states which by virtue of their neighborliness, their cultural, linguistic, historical, social, and economic ties with the territory to be placed under trusteeship are legitimately concerned.” United Nations Journal of the General Assembly, First Session, No. 10, p. 268.

21 United Nations Journal No. 16: Supplement No. 4–A/C/4/7.

22 Same A/C/4/1S.

23 “Proposed Amendment to Section 1 of Chapter IV of the Eeport of the Preparatory Commission by the Delegation of Iraq,” United Nations, General Assembly, First Session, Documents, A/C/4/11.

24 Note that the term “historical ti es” is no longer qualified by the word “continued.”

25 The New York Times, February 1, 1946.

26 See p. 9, above.

27 United Nations Journal No. 15: Supplement No. 4—A/C/4/13. Mr. van Asbeck’s opinion was supported in the eighth meeting of the Fourth Committee (Jan. 28, 1946) by Mr. Loridan (Belgium), and in the sixth meeting of the Fourth Committee (Jan. 25, 1946) Mr. Dulles (U. S. A.) had intimated a similar opinion. United Nations Journal No. 17: Supplement No. 4—A/C/4/18; United Nations Journal No. 15: Supplement No. 4—A/C/4/7.

28 “Proposed Amendments to Section 1 of Chapter IV. Draft Resolution for the General Assembly (Submitted by U. S. Delegation),” Jan. 22, 1946, United Nations, General Assembly, First Session, Documents, A/C/4/3.

The report of the Fourth Committee was approved by the General Assembly on February 9, 1946. The New York Times, February 10, 1946.

29 That is, when the General Assembly convenes for the first time in New York.

30 See the statements by, Mr. Bailey (Australia), Mr. MacEachen (Uruguay), the Chairman of the Committee, and Mr. Frazer (New Zealand) in the sixth, and by Mr. Wellington Koo (China) in the seventh, meetings of the Fourth Committee. United Nations Journal No. 15: Supplement No. 4—A/C/4/7 and A/C/4/13.

31 In the eleventh plenary meeting of the General Assembly (Jan. 17, 1946) Mr. Bevin had announced that the United Kingdom Government had decided “to enter forthwith into negotiations” for placing its African mandates (the Cameroons, Togoland, and Tanganyika) under the trusteeship system. This announcement had been followed in the fourteenth plenary meeting (Jan. 18, 1946) by Mr. Frazer’s declaration that New Zealand was prepared to place the mandated territory of Western Samoa under trusteeship, and in the fifteenth plenary meeting (Jan. 18, 1946) the delegates of Australia and Belgium had made like declarations with respect to the territories held by their countries under League of Nation mandates. Mr. Makin had declared that Australia would negotiate trusteeship agreements with a view of bringing the mandated territory of New Guinea under international trusteeship, and that it shared with the United Kingdom and New Zealand, as the comandatory powers, a similar intention regarding Nauru. Mr. van Langenhove had announced that Belgium would negotiate the terms of trusteeship for the mandated territory of Ruanda-Urundi. Finally in the sixteenth plenary meeting (Jan. 19, 1946) Mr. Bidault had followed suit by telling the General Assembly that France was prepared to study the terms by which trusteeship agreements could be defined in the case of the Cameroons and Togoland. Only the Union of South Africa among the mandatory powers of the United Nations had not followed the lead of the United Kingdom. The South African delegate Mr. Nichollshad declared in the twelfth plenary meeting that the Union reserved its position concerning the future of the mandated territory of South West Africa, together with its rights of full liberty of action.

Thus when the Fourth Committee started to discuss the recommendation in the Report of the Preparatory Commission for the implementation of Art. 79 there had already arisen the situation that with respect to all territories held by members of the United Nations under League of Nation mandates, except South West Africa, Palestine, and Trans-Jordan, the mandatory powers had expressed their willingness to negotiate the terms of trusteeship.

Regarding Palestine and Trans-Jordan Mr. Bevin had said in the thirteenth plenary meeting of the General Assembly: “We think it necessary to await the Committee’s report [the report of the twelve-man Anglo-American Committee of Inquiry on Palestine] before putting forward any proposals relating to the future of Palestine. Regarding the future of Trans-Jordan, it is the intention of His Majesty’s Government in the United Kingdom to stake steps in the near future for establishing this territory as a sovereign independent state and for recognizing its status as such. In these circumstances the question of Trans-Jordan going under trusteeship does not, therefore, arise.

United Nations Journal of the General Assembly, First Session, No. 8, pp. 176–177, 193; No. 9, p. 235; No. 10, pp. 235, 249, 253, 264.

On March 22, 1946 the United Kingdom abandoned its mandate over Trans-Jordan; on that day the United Kingdom and Trans-Jordan signed a treaty of mutual assistance and alliance.

32 See United Nations, General Assembly, First Session, Documents, A/C/4/9, which contains the relevant passage of Mr. Attlee℉s announcement in the House of Commons of January 23, 1946, on the procedure the United Kingdom Government was following in negotiating the terms of trusteeships for its African mandates.

33 Mr. Orts (Belgium) in the seventh meeting of the Fourth Committee (Jan. 26, 1946). United Nations Journal No. 15: Supplement No. 4—A/C/4/13.

34 United Nations Journal, General Assembly, First Session, No. 9, p. 206.

35 Words of Mr. Attlee in his announcement to the House of Commons referred to in note 32, above.

36 The “Proposal by the Canadian Delegation for Insertion in Sect. 1 of the Report [of the Preparatory Commission] to the General Assembly” (note 14, above), as well as the “Draft Amendment by the Belgian Delegation to the Proposal of the Canadian Delegation,” United Nations, General Assembly, First Session, Documents, A/C/4/15, had suggested the following: A member of the United Nations intending to place a territory under the trusteeship system shall file a “Declaration of Intention” containing the names of the states “directly concerned” with the Secretary General (the Executive Secretary). The Secretary General (the Executive Secretary) shall send the Declaration to all members of the United Nations. Any member that is not named in the Declaration and considers itself a state “directly concerned” shall notify through the Secretary General (the Executive Secretary) the member that made the Declaration of any claim to participate in the negotiations on the terms of the trusteeship.

37 Words of Mr. Dulles (U. S. A.) in the sixth meeting of the Fourth Committee. See also the similar statements by Mr. Frazer (New Zealand) in the same meeting, and by Mr. Orts (Belgium) in the eighth meeting. United Nations Journal No. 15: Supplement No. 4—A/C/4/7 and A/C/4/13.

38 Same, A/C/4/13.

39 Among the decisions on “important” questions that need this qualified majority, Art. 18(2) of the Charter lists “questions relating to the operation of the trusteeship system.”

40 This follows from the general rule laid down in Art. 27(3) for all decisions of the Security Council concerning non-procedural matters.

41 Since the above text was written the General Assembly of the United Nations has approved (December 13, 1946) eight draft trusteeship agreements (for the Australian mandated territory of New Guinea, the Belgian mandated territory of Ruanda-Urundi, the British mandated territories of Tanganyika, Togoland and the Cameroons, the French mandated territories of Togoland and the Cameroons, and the New Zealand mandated territory of Western Samoa), and has set up the Trusteeship Council (December 14, 1946). Moreover, the Security Council has approved (April 2, 1947) the draft trusteeship agreement for the former Japanese mandated islands in the Pacific and the General Assembly has approved (November 1, 1947) a ninth trusteeship agreement (Nauru, mandated territory of Australia, New Zealand, and the United Kingdom).

These events, however, do not impair the validity of the arguments presented in the paper. Only by evading for reasons of so-called expediency the basic issue of “the states directly concerned” was it possible to place all former mandated territories, except Nauru, Palestine, and Southwest Africa under the trusteeship system and to set up the Trusteeship Council.

When the eight trusteeship agreements came up for discussion in the General Assembly in its Fourth Committee and in Sub-committee 1 of the Fourth Committee, the ambiguity of Art. 79 of the Charter proved again a vexatious problem. The following interpretations were offered as to the meaning of the clause “the states directly concerned”:

(1) the administering state (Mr. Dulles, U. S. A.; Mr. Bailey, Australia; Mr. Cineros, Cuba) ;

(2) the administering state and those states which the latter had decided were “the states directly concerned” (Mr. Naggiar, France);

(3) all members of the United Nations (Mr. Galiewicz, Poland);

(4) the “Big Five” (Mr. Lisicky, Czechoslovakia);

(5) in the first place the “Big Five,” but some provision for small countries to be considered “states directly concerned” with regard to particular territories (Mr. Novikov, U. S. S. R.). It was recognized, moreover, that the difficulties in determining “the states directly concerned” were difficulties “inherent” in the Charter (Mr. Thomas, United Kingdom). But no one even suggested the only legal solution, namely, to amend the Charter.

The majority of the delegates wanted “to get the job done.” Their chief concern was to approve with minor modifications accepted by the mandatory powers the draft trusteeship agreements (the Belgian representative raised the pertinent question whether the Assembly had the power to amend draft trusteeship agreements unless their terms were in direct contradiction to provisions of the Charter), and to pave the way for the setting up of the Trusteeship Council. Hence the majority shelved the solution of the problem “the states directly concerned” by adopting a United States sponsored resolution that the approval of any terms of trusteeship by this session of the General Assembly be subject to the understanding that no definition of the term had been decided on, and that no state had “waived or prejudiced its right hereafter to claim to be such a ‘state directly concerned’ in relation to approval of subsequently proposed trusteeship agreements and any alteration or amendment of those now approved.” This resolution, clearly indicating that the majority was willing to vote for the draft trusteeship agreements, though it did not profess to know who were “the states directly concerned” with which the mandatory powers should have negotiated the draft trusteeship agreements, was termed by the U. S. S. R. a violation of the Charter. Hence the U. S. S. R. has not participated in the sessions of the Trusteeship Council.

The U. S. S. R., and apparently a few other members of the United Nations (among them Byelorussia, India, the Ukraine and Yugoslavia), held that the General Assembly must first of all work out during its session a defintion of the term “the states directly concerned.” So far the states “directly concerned” had been arbitrarily decided by the mandatory powers. As long as the clause in question had not been defined by the General Assembly, the draft trusteeship agreements the mandatory powers had submitted could be considered “only preliminary drafts.” When it became obvious that the majority was not willing to define “the states directly concerned” then and there the U. S. S. R. proposed a resolution declaring that the agreements submitted by the mandatory powers were contrary to the requirements of the Charter, and could not be considered as trusteeship agreements, since the Charter laid down that the terms of trusteeship should be approved by “the states directly concerned,” and these had not been determined. This resolution was rejected by 36 against, six in favor with 11 abstensions.

From what has been said above it should have become apparent that any definition by the General Assembly of the ambiguous clause of Art. 79 would have been unconstitutional. However, no less unconstitutional was the approval of the draft trusteeship agreements. It may even be doubted whether the approval of the eight draft trusteeship agreements was really expedient, despite the fact that the trusteeship system got under way and that the Security Council unanimously approved a few months later–for reasons best known to its members–the U. S. A. draft trusteeship agreement concerning the former mandated Japanese islands in the Pacific. For in approving the draft trusteeship agreements the General Assembly had to go on record that it did not know who “the states directly concerned” were. Thereby it had to admit that the approval of the trusteeships and the setting up of the Trusteeship Council could not be based on the Charter, and had itself to cast doubt upon the constitutionality of its actions.

When the draft trusteeship agreement for Nauru came up for approval at the second regular session of the General Assembly and the U. S. S. R. spokesman (Professor Stein) again raised the objection that the words “states directly concerned” had not been defined, Australia offered an astonishing interpretation of the ambiguous clause. Its spokesman (Mr. Forsyth) maintained that by approving in 1946 the eight trusteeship agreements the General Assembly had shown that it did not regard the definition of the words “states directly concerned” as essential, so long as the terms of the agreement themselves were acceptable. In other words, Australia maintained that it is up to the majority of the General Assembly to decide whether or not a clause of the Charter is important!

This tendency not to amend, but to “get around” flaws or imperfections of the Charter when acting in accordance with it is either impossible (Art. 79) or undesirable (Art. 27), has again been demonstrated by the “gentlemen’s agreement” between the “Big Five” that, notwithstanding the clear and mandatory wording of Art. 27(3), abstention from voting by any one of the permanent members of the Security Council on substantive matters shall never be deemed an exercise of the so-called veto power. Argentina, which became a member of the Security Council on January 1, 1948, recently (January 23) challenged this practice. The occasion was the establishing by a Council vote, with the U. S. S. R. abstaining, of a commission in the India-Pakistan dispute. The representative of Argentina (Dr. Arce) considered the Council’s decision invalid legally, though he had voted in favor. Said he: “I do not oppose the permanent members of the Security Council renouncing the use of their privileges if they consider it desirable, but when they do so, it should be done publicly,”—in other words by amending the Charter. Nothing is so inexpedient in the long run as an expediency which undermines the respect for a constitution, be this a national constitution or be this the United Nations Charter. On the material covered in this note see United Nations WeeTcly Bulletin, Vol. 1, No. 15, pp. 7, 17–19; No. 16, pp. 28–31, No. 17, pp. 3–6, 15–16; No. 18, pp. 40–43; No. 19, pp. 48–51, 52–54; No. 20, pp. 48–49; No. 21, pp. 12–15; No. 22, pp. 16–17; Vol. 2, No. 9, pp. 224–226; No. 10, pp. 260–262; No. 11, pp. 283–286; No. 13, pp. 376–377; No. 14, pp. 389–394; Vol. 3, No. 16, pp. 492–494; No. 24, p. 167; and Vol. 4, No. 4, p. 135.