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.