461 Australian Delegation, United Nations, to Department of External Affairs

Cablegram UN265 NEW YORK, 14 March 1947, 12.50 p.m.

MOST IMMEDIATE SECRET

Security 305.

Reference our Security 301.

1. We have discussed informally with United Kingdom Delegation questions raised by Constitutional objections to our new Article 17 and transmit, herewith, for your information, summary of tentative United Kingdom views, stressing that the opinions at this stage should be ascribed only to individual members of Delegation and have been communicated to us informally.

2. United Kingdom prefers its own redraft of our amendment (see, our Security 301, paragraph 3), admitting that their formula would not allow further discussion on actual terms of trusteeship agreement at Peace Conference but only discussion of disposal of islands. United Kingdom distinguishes between agreement on terms of trusteeship and the act of approving that agreement. Terms of trusteeship are to be agreed upon by the States directly concerned, including the mandatory power if a member of the United Nations (Article 79) and, in case of strategic areas, terms are also to be approved by Security Council (Article 83). There is nothing precluding terms of trusteeship agreed upon in Article 79 from including provision that agreement shall become effective on some later date than the date on which agreement is approved by Security Council, but this provision would have to be agreed upon by States directly concerned and also by Security Council.

Similarly, United Kingdom admit it is arguable that there is no legal objection to agreement by the States directly concerned that the terms of trusteeship shall be subject to approval by some body in addition to the Security Council. States concerned could not agree that terms shall not be approved by Security Council but it is arguable that they could provide in a particular case that the terms should be approved by some body in addition to the Security Council but, in absence of a clause postponing entry into force, a trusteeship agreement agreed by the States directly concerned and approved by the Council enters into force at once and, in any event, those terms once agreed and approved cannot be changed except as agreed by the States directly concerned and approved by the Council. The question is not that Security Council should give approval subject to some condition or qualification, the question is what shall be in the agreement. If our Article 17 becomes one of the terms in the agreement it must be recognised that if the Peace Conference were to suggest amendments which the States directly concerned would presumably be bound to accept by reason of their prior reference to Peace Conference for confirmation those amendments would have to be approved by the Security Council under Article 83 (1) before they became operative.

3. United Kingdom officials have tentatively drawn up the following points for possible use in supporting their redraft of our amendment.

(a) This is not a question of Council giving its approval subject to some condition or qualification, but merely an insertion in the terms of trusteeship, agreed by the States directly concerned, of a new clause postponing the entry into force of the agreement.

There is nothing in the Charter prohibiting this, and when the terms of trusteeship are agreed by the States directly concerned, with or without the clause postponing entry into force, then the Security Council can give or withhold its approval.

(b) In view of the legal uncertainties to which the United Kingdom representative referred in his statement at a previous meeting, it is desirable, for the avoidance of doubts, to postpone operation of the agreement until Japan has surrendered in the Peace Treaty any rights it may still have relating to the territories involved.

(c) In view of the attitude which the United States has shown in its prompt reference of terms of trusteeship to the Council and of the nature of the terms themselves, it is clear that the United States, which is now in de facto control of the territories, will administer them according to the spirit and terms of the agreement although it has not formerly entered into force.

(d) It is desirable to avoid immediate entry into force of the agreement because it would make the United States an administering authority entitled to membership on the Trusteeship Council under Article 86(1)(a) instead of, as at present under 86(1)(b). This would throw out the balance between members administering trust territories and members not administering trust territories, under Article 86(1)(c), so that the Assembly would be required to make a further election to the Council. The result would be that the Trusteeship Council next month at its meeting would be one member short, a fact which might also well give rise to legal doubts.

[AA : A1838,333/4, ii]