86 Australian Government to Fraser

Cablegram 225 CANBERRA, 26 August 1946

SECRET

Trusteeship Agreements for New Guinea and Western Samoa.

1. We are anxious to ensure mutual full support at the next General Assembly when the trusteeship agreements are submitted for approval.

2. It appears desirable to us to attempt to remove without delay any point of substantial difference between us. You will have noticed that phrase 'on behalf of the United Nations' does not appear in Article 2 of our draft designating Australia as the administering authority for New Guinea. The omission of the phrase has been actuated by the following considerations- (a) the view that Articles 75 and 87 of Charter contemplate division of supervisory and administrative powers, the former power reposing in the Trusteeship Council, the latter in the Administering State. Article 87 specifies four functions of the General Assembly and Trusteeship Council which from their character impliedly support the view that in normal cases administration is a national task and supervision an international obligation.

(b) this view emphasises deliberately the 'trusteeship' character of the new system of international supervision as distinct from the 'agency' concept of the Mandates system. That is, it relies on the notion that a trustee is an owner but is accountable to others for the exercise of the rights of ownership. An agent on other hand is, of course, not an owner but is subject to directions of a principal in carrying out functions which belong to that principal. Thus we feel the administering authority is rightly subject to precise and searching supervision by the Trusteeship Council and ultimately the United Nations Assembly but is not subject to direct interference in the course of its administration. The Trusteeship Council reviews action taken by administering authority but does not engage in prior direction.

(c) inclusion of the phrase 'on behalf of the United Nations' suggests strongly an agency concept and opens the way to possible interference in administration by the Powers represented on the Trusteeship Council. It may well bring with it dangers and weaknesses of 'international administration'. It should be remembered in this connection that members of Trusteeship Council need not necessarily be experts in colonial administration as were the members of the Permanent Mandates Commission. Charter provision (Article 86(2)) is dangerously vague on this point.

(d) The Mandate system was, of course, based on judicial facts of 1918 when title to ex-enemy colonies was vested in Allied and Associated Powers. The Mandatory powers have acted as agents not trustees. To apply the same concept to the International Trusteeship system may prove embarrassing to States who decide to bring territories falling within Article 77(c) category [1] under that system. If the concept of administration on behalf of UNO were accepted it may indeed tend to discourage States in the future from bringing territories at present their colonial possession under the trusteeship system involving as it would an acknowledgment that powers of administration in such territories were derived from the United Nations Organization. (e) We fully support principle of accountability of trustee powers to the Trusteeship Council for the carrying out of obligations specifically provided for in the Charter, but feel that the phrase 'on behalf of the United Nations' adds nothing to that concept but does seem to us to introduce the dangers we have mentioned. 3. We are anxious to raise this matter with the United Kingdom also in near future and note that inclusion of the phrase is still receiving consideration along with other points discussed with United States representatives (see D.770). [2] Before raising the question we should appreciate early expression of your views. [3]

1 i.e. 'territories voluntarily placed under the system by states responsible for their administration'.

2 Dispatched from London on 15 August, it was concerned mainly with interpretation of the phrase 'States directly concerned'.

3 No reply has been found.

[AA:A1838/238, 306/1/1, ii]