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Published online by Cambridge University Press: 28 March 2017
The termination on January 31, 1968, of the Trusteeship Agreement on Nauru has given rise to a complex situation with regard to Article 86(1) of the United Nations Charter which lays down the rules governing the composition of the Trusteeship Council.
1 See General Assembly Res. 2347(XXII) of Dec. 19, 1967.
2 General Assembly, 20th Sess., Official Records, 1400th Plenary Meeting, Dec. 17, 1965.
3 It has been sometimes argued that New Zealand in fact should have ceased to be a member of the Council as long ago as 1961, when the Trusteeship Agreement on Western Samoa was terminated. This argument is based on the fact that the Trusteeship Agreement on Nauru, although designating Australia, New Zealand and the United Kingdom as the joint administering authority, also stipulated that Australia alone was to exercise legislative, administrative and jurisdictional powers over the territory on behalf of the administering authority. Since, according to Art. 81 of the Charter, the term “administering authority” refers to the authority “which will exercise the administration of the trust territory,” it has been maintained that, contrary to appearances, “ … a strict interpretation of this article places Australia [alone] as the administering authority, and consequently Nauru is not subject to an administering authority of more than a single State.” (Toussaint, The Trusteeship System of the United Nations 205 (1956).) This argument was taken up by the Indian delegate at the 14th Session of the General Assembly, when he said:“When Western Samoa becomes independent in 1961, New Zealand can be regarded as ceasing to be an Administering Authority; it is arguable that for Nauru, for which New Zealand is a partner in joint trusteeship but which is administered by Australia, it is the latter and not the sleeping partner in the Trusteeship Agreement for Nauru which is answerable to the Trusteeship Council and has the capacity to undertake obligations of Administering Authority in the Council… . Later, Tanganyika will be independent, which will mean that the United Kingdom will cease to be an Administering Authority.” (General Assembly, 14th Sess., Official Records, 857th Plenary Meeting, p. 765.)Since the Trusteeship Agreements on Tanganyika and Western Samoa were terminated on Dec. 28, 1961, and Feb. 1, 1962, respectively (see General Assembly res. 1609 (XV) of April 21, 1961, and 1626 (XVI) of Oct. 18, 1961, respectively), the problems discussed in this paper may indeed have been in existence for the past six years without notice having been taken of them. For a contrary view see Bailey, “The Future Composition of the Trusteeship Council,” 13 International Organization 412, at 417 (1959).
4 A fifth non-administering state—Liberia—was, as already mentioned, a member of the Council until Dec. 31, 1968.
5 See Note by the Secretary General of Nov. 23, 1967, on the composition of the Trusteeship Council (Doc. A/6926, Annex III, also circulated under the symbol T/1674).
6 Doc. A/6926 of Dec. 1, 1967 (Special Report of the Trusteeship Council), p. 4.
7 Ibid.,Annex III .
8 Ibid.
9 Ibid.
10 Ibid.,p. 4.
11 General Assembly, 22nd Bess., Official Records, Doc. A/PV. 1641, Dec. 19, 1967.
12 It may be perhaps questioned whether any amendment of the Charter which is not supported by the five permanent members of the Security Council has a chance of coming into force, in view of Art. 108 which provides that for its coming into force the ratification by these five Powers is required. It may be recalled in this connection that the amendment to enlarge the Security Council was supported in the General Assembly by only one permanent member—China. Two (France and the Soviet Union) opposed it, while the remaining two (the United Kingdom and the United States) abstained. The enlargement of the Economic and Social Council did not receive in the General Assembly the support of any of the permanent members. Three of them (China, the United Kingdom and the United States) abstained, while two (France and the Soviet Union) voted against it (see ibid.,18th Sess., 1285th Plenary Meeting, Dec. 17, 1963, p. 15). The opposition of some of the permanent members and the skepticism of others were well known in advance to the membership of the Organization; yet this did not deter them from adopting the said amendments, for they rightly calculated that the very adoption of an amendment by the General Assembly creates a moral pressure which even recalcitrant permanent members would find difficult to resist unless such amendment directly and gravely affects their immediate interests.We need not here go into the offered distinction between the permanent representation on the Trusteeship Council of certain states “mentioned by name in Article 2 3” (see Art. 86(1), clause (b) of the Charter) “by virtue of their world-wide interests” (see the statement of the Canadian delegate in Commission II of the San Francisco Conference on June 20, 1945; Doc. WD 437; CO/201 of Sept. 11, 1945, 17 U.N.C.I.O. Docs. 315) and their representation there quapermanent members of the Security Council.
13 For a detailed survey of the practice of the Organization regarding the composition of the Trusteeship Council up to 1960, see Meron, “The Question of the Composition of the Trusteeship Council,” 36 Brit. Yr. Bk. Int. Law (1960) 250, at 263- 268. Commenting on that practice, Meron states that it “clearly indicates that a temporarylack of parity has never been considered as rendering the Council illegal.” Ibid.276; emphasis added. On the practice of the General Assembly regarding the preservation of the required parity within the Trusteeship Council between administering and non-administering members see also 4 Repertory of Practice of United Nations Organs 307-308 (1955); 2 ibid.,Supp. No. 1, p. 269 (1958); and 3 ibid.,Supp. No. 2, p. 329 (1963).
14 Doc. A/4448, Aug. 21, 1960, being a Note by the then Secretary General, setting out the background of the disparities referred to.
15 Ibid
16 Doc. A/L. 275/Rev. 1.
17 Doc. A/L. 274.
18 For an analysis of the debate on this point at the General Assembly's 14th Session, see Meron, loc. cit.269-274.
19 See, e.g.,the views expressed by the delegates of Ceylon (General Assembly, 14th Sess., Official Records, 857th Plenary Meeting, p. 764) and the United Kingdom (ibid.,p. 770). The discussion of the General Assembly on that occasion may be found ibid.,at pp. 755-777.
20 Kelsen, The Law of the United Nations 663 (1950).
21 Toussaint, op. cit.163.
22 Ibid.164-165; emphasis in original.
23 Meron, loc. cit.277.
24 Murray, The United Nations Trusteeship System 46 (1957). According to Murray's calculations, “the smallest number of administering authorities to effect this was 3; and this only if at least 2 of the administering authorities were among the Big Five.'’ Ibid.,note 1. See also Toussaint, op. cit.162.
25 General Assembly, 14th Sess., Official Records, 857th Plenary Meeting, Dec. 12, 1959, and 15th Sess., 979th Plenary Meeting, April 7, 1961.
26 See, e.g.,the statement made by Mr. Husain of Pakistan at the 14th Session of the General Assembly: “Article 86, paragraph 1, clearly means parity between administering members and the non-administering members, and if that parity is not there, it is not a Trusteeship Council, but something else.'’ (General Assembly, 14th Sess., Official Records, 857th Plenary Meeting, p. 777.) Similarly, Mr. Mongi Slim of Tunisia declared that “[t]his year [i.e. 1961] … the Trusteeship Council … finds itself in an illegal position which could impair the validity of its decisions.” Ibid.,15th Sess., 979th Plenary Meeting, p. 235.)
27 See Doc. A/4448, Aug. 2 1 , 1960.
28 For the travaux préparatoiresof Art. 86 as well as for the various developments leading up to the establishment of the Trusteeship Council, see Meron, loc. cit.252-263.
29 Toussaint, op. cit.18-19.
30 Ibid.19.
31 Doc. 2; G/26(c), 3 U.N.C.I.O. Docs. 608.
32 Doc. 2; G/25(d), 3 U.N.C.I.O. Docs. 609.
33 Doc. 2; G/26(a), 3 TJ.N.C.I.O. Docs. 606.
34 Doc. 2; G/26(e), 3 U.N.C.I.O. Docs. 616.
35 Doc. 2; G/14(l), 3 U.N.C.I.O. Docs. 543.
36 Doc. 2; G/26(f), 3 U.N.C.I.O. Docs. 619.
37 Ibid.Soviet objection was apparently motivated by the fear that if the permanent members of the Security Council are not accorded permanent seats on the Trusteeship Council, the arrangement suggested by the United States, France and China ‘ ‘ could have resulted in one or more of the permanent members of the Security Council not having representation on the Trusteeship Council.” (Goodrich and Hambro, Charter of the United Nations 463 (2nd rev. ed., 1949).) This, together with the Soviet Union's opposition to amendments of the Charter in general, would explain the vigorous opposition of her delegate to the Trusteeship Council in November, 1967, to the very idea of amending Art. 86. In the Soviet delegate's view,“the reference, in … the Secretary-General's note [on the composition of the Council], to the possibility of amending the … Charter had not been made in response to any need… . It was quite obvious that the provision in Article 86 of the Charter, calling for parity in the Council between those Powers which administered Territories and those which did not, was intended to prevent the first group of Powers from outnumbering the second. At the present time … a situation had arisen in which the number of Powers that did not administer Territories was greater than the number of those that did… . The question of the future composition of the Trusteeship Council was not in any sense a matter of immediate interest and, in any event, was not one that could require amendments to the Charter.” (Doc. A/6926, p. 5.)This statement contrasts strangely with the attitude taken by the Soviet delegate at the 14th Session of the General Assembly when he pointed out that if a special session of the General Assembly would not be convened on April 27, 1960 (i.e.the day on which French administration over the trusteeship territory of Togoland was to come to its end), “ t he Trusteeship Council, from April 27, 1960 … would be functioning with a membership not in accordance with the United Nations Charter; and that cannot be permitted.” (General Assembly, 14th Sess., Official Eecords, 857th Plenary Meeting, p. 759.) The explanation for this apparent inconsistency arises no doubt from some later reconsideration of the legal merits, since we must obviously exclude mere oversight.
38 Doc. 323; II/4/12, 10 U.N.C.I.O. Docs. 677.
39 Doc. 877; II/4/35, 10 U.N.C.I.O. Does. 517.
40 Ibid.As has been pointed out by Russell and Muther, “ [t]his implied correlation between wisdom with [sic]power was not openly challenged. The committee, evidently accepting the ultimatum, rejected the [Egyptian] amendment and adopted the paragraph as submitted [by the United States].” Russell and Muther, A History of the United Nations Charter 841 (1958).
41 According to Bailey, “the principle of parity on the Council is one of the reasons for the success of the trusteeship system. Neither the administering members nor the non-administering members can force through the Council a resolution which is unacceptable to the other ‘side'. The fact that there are two ‘sides', equal in voting strength, has induced an attitude of moderation, a search for the acceptable compromise. This has led to a further consequence that the Council has, by and large, adopted a technical rather than political approach.” Bailey, loc. cit.418.
42 Doc. 1114; 11/16, June 21, 1945, 8 U.N.C.I.O. Docs. 12; emphasis added.
43 See Art. 27(1) of the draft Articles on the Law of Treaties prepared by the International Law Commission and the commentary thereon. I.L.C. Rep., 2nd Part, 17th Sess., and 18th Sess., Doc. A/6309/Rev. 1, pp. 49-52. This principle has now found expression in Art. 31 (1) of the 1969 Vienna Convention on the Law of Treaties, Doc. A/CONT.39/27, May 23, 1969, p. 16; reprinted below, p. 885.
44 Meron, loc. cit.276-277.
45 Lauterpacht, The Development of International Law by the International Court 229 (1958); emphasis added.
46 Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties,” 26 Brit. Yr. Bk. Int. Law 48, at 73 (1949); emphasis added.
47 Ibid.74.
48 McNair, The Law of Treaties 383 (1961).
49 [1950] I.C.J. Rep. 229.
50 [1966] I.C.J. Rep. 48; emphasis added.
51 McNair, op. cit.385.
52 Doc. A/6309/Rev. 1, p. 50.
53 1 Kopelmanas, L'Organisation des Nations Unies 298-299 (1947).
54 Pollux, “The Interpretation of the Charter,” 23 Brit. Yr. Bk. Int. Law 54, at 68- 69 (1946).
55 Kunz, “The United Nations and the Rule of Law,” 46 A.J.I.L. 504, at 506 (1952).
56 Pollux, loc. cit.70; emphasis in original.
57 Bailey, loc. cit.421. Bowett (The Law of International Institutions 69 (1963)), points out that ‘ ‘ [a] further defect is that the system under Article 86 will become unworkable once the number of administering authorities falls below that number of the permanent members who are non-administering States and this may well happen since the trusteeship system is ‘self-liquidating.’ “
58 Robinson, “Metamorphosis of the United Nations,” 94 Hague Academy, Recueil des Cours 497 at 555 (1958, I I ).
59 General Assembly, 14th Sess., Official Records, 857th Plenary Meeting, p. 761.
60 See note 37 above.
61 See note 12 above.
62 Bailey, loc. cit.420-421.
63 It is generally assumed that on the termination of the last trusteeship agreement the Trusteeship Council will automatically cease to exist. Thus, e.g.,the delegate of Guinea declared at the 14th Session of the General Assembly that “[n]o one can conceive of a Trusteeship Council when there are no more Trust Territories.” General Assembly, 14th Sess., Official Records, 857th Plenary Meeting, p. 783.
64 Toussaint, op. cit.162. According to Toussaint, “[t]his was pointed out by the United States delegate, Mr. Dulles, in 1946 [Official Records of the General Assembly, Second Part of the First Session, Fourth Committee, Part 2: Summary Records of Meetings of Sub-Committee 1, p. 35].” Ibid.,note 16,
65 Pollux, too. cit.69.
66 Martin and Edwards, The Changing Charter 38 (1955).
67 see note of Sept. 10, 1964, on “Practice of the United Nations as regards the Consideration of the same Questions by the Security Council and the General Assembly,'’ published in 1964 United Nations Juridical Yearbook 228-237.
68 Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies 172 (1968); reviewed in 63 A.J.I.L. 665 (1969).
69 Ibid.173.
70 ma.172.
71 Engel, “The Changing Charter of the United Nations,” 1953 Tear Book of World Affairs 71 ff.; idem, “Procedures for the de factoRevision of the Charter,” 1965 Proceedings, American Society of International Law 108 ff.
72 Wilcox and Marcy, Proposals for Changes in the United Nations 460-461 (1955).
73 Goodrich, The United Nations 68-69 (1960).
74 Giraud, “ L a revision de la Charte des Nations Unies,” 90 Hague Academy, Recueil des Cours 307, at 386-399 (1956, II).
75 Higgins, The Development of International Law through the Political Organs of the United Nations 4 (1963).
76 Lachs, “The Law in and of the United Nations,” 1 Indian Journal of International Law 429, at 439 (1961).
77 Hexner, ‘ ‘ Teleological Interpretation of Basic Instruments of International Organizations,” in Engel and M6tall (eds.), Law, State and International Legal Order, Essays in Honor of Hans Kelsen 119 ff. (1964).
78 Schachter, “Interpretation of the Charter in the Political Organs of the United Nations,” ibid.269 ff.
79 Zacklin, op. cit.180.
80 Engel, “The Changing Charter of the United Nations,” loc. cit.73.
81 Ibid.75-76.
82 Ibid.96-99.
83 Ibid.100; emphasis in original.
84 See Hexner, loc. cit.123-124.
85 Ibid.123; emphasis in original.
86 Giraud, loc. cit.386.
87 Hexner, loc. cit.124; emphasis in original.
88 The borderline between interpretation and modification is, of course, rather blurred. “ I t is true and generally known,” says Bernhardt, “ t h a t the limits between both an authentic interpretation and modification of a treaty are fluid. In my opinion, a plausible delimitation can only be found by determining whether or not the treaty text has been respected in later practice.” Bernhardt, “Interpretation and Implied [Tacit] Modification of Treaties,” 27 Zeitschrift fiir ausländisches öffentliches Recht und Völkerrecht 491, at 499 (1967).
89 Vallat, “The Competence of the United Nations General Assembly,” 97 Hague Academy, Recueil des Cours 203, at 212 (1959, II).
90 Stone, No Peace—No War in the Middle East 22 (1969).
91 Engel, 1953 Tear Book of World Affairs 96; 1965 Proceedings, American Society of International Law 112-113.
92 Zackfin, op. cit.182.
93 Giraud, loc. cit.399.
94 Hexner, loc. cit.129; emphasis in original.
95 Doc. A/CONF. 39/C. 1/L. 370 (mimeographed), p. 165. The text of the International Law Commission's final draft Art. 38 and its commentary thereon may be found in the I.L.C. Rep. 2nd Part, 17th Sess., and 18th Sess. (Doc. A/6309/Bev. 1), pp. 65-66. As a result, this article was also omitted from the final text of the Vienna Convention on the Law of Treaties, adopted on May 23, 1969 (Doc. A/CONF. 39/27, May 23, 1969), reprinted below, p. 875.
96 See Art. 27(3) (b) of the I.L.C. final draft (ibid.48, 52-53), which was retained by the Committee of the Whole. Doc. A/CONF. 39/C. 1/L. 370, p. 134. It has since become Art. 31 (3) (b) of the 1969 Vienna Convention on the Law of Treaties, Doc. A/CONF. 39/27, May 23, 1969, p. 16.
97 Fitzmaurice, ‘ ‘ The Law and Procedure of the International Court of Justice 1951- 4: Treaty Interpretation and Other Treaty Points,” 33 Brit. Yr. Bk. Int. Law 203, at 224 (1957).
98 Zacklin, op. cit.197.
99 Ibid.