93 United States Government to Australian Government

Aide-Memoire WASHINGTON, 29 August 1946

SECRET

With reference to the aide-memoire and the draft trusteeship agreement for New Guinea which were left at the Department of State on August 16, 1946 [1] by the Second Secretary of the Australian Embassy, the Acting Secretary of State informs the Charge d'Affaires ad interim of Australia that the American Embassy in Canberra has been instructed, in accordance with the request of the Australian Government, to convey to the Australian Government the views of this Government on the draft trusteeship agreement for New Guinea.

A copy of a note containing the views of this Government on procedures for the submission of trusteeship agreements to the General Assembly of the United Nations and its comments on the draft trusteeship agreement for New Guinea, which the American Embassy is to present and explain to the Australian Government, is being made available to the Charge d'Affaires for his information.

[2]

It should be noted that no comment has yet been made on Article 7 of the Australian draft agreement, relating to defense and security matters. This Article, and its relation to this Government's proposal of March 14, 1946 concerning the desire of the United States to obtain joint rights with Australia in certain installations in the Admiralty Islands [3], are still under consideration. The views of this Government on this matter will be communicated to the Australian Government in the near future.

Attachment

TEXT OF NOTE TO BE HANDED TO THE GOVERNMENT OF AUSTRALIA

I have the honor to refer to the aide-memoire and the draft trusteeship agreement for New Guinea which an officer of the Australian Embassy left at the Department of State on August 16, 1946.

The Government of the United States appreciates the initiative which has been taken by the Government of Australia with a view to the early establishment of the trusteeship system as contemplated in the Charter. This Government notes that the draft terms of trusteeship have been transmitted to the United States Government for its 'information' and that 'the Australian Government does not wish to be regarded as committing itself to any interpretation of the phrase "states directly concerned" within the meaning of Article 79 of the United Nations Charter'.

This Government has carefully examined the draft terms of trusteeship proposed by the Government of Australia and takes this opportunity to transmit certain comments on them which are outlined in the enclosure. These comments pertain largely to changes which it is believed experience has shown to be desirable since the original mandate charters were adopted a quarter of a century ago. An effort has been made to adapt all the proposed changes to the particular situation in the region. As you will note, many of the revisions and additions suggested herein have already been accepted by the Government of the United Kingdom for inclusion in the terms of trusteeship for Tanganyika. It is hoped that these suggested changes and additions may find ready acceptance by the Government of Australia since, in many cases, the proposed changes or additions are in effect a codification of practices already adopted by the Government of Australia.

In transmitting these comments, the United States Government does so without reference to the determination of the phrase 'states directly concerned'. The position of the United States in this respect remains what it has been for the past twenty-five years, namely, that it has special and specific rights under the Treaty of Versailles and as a party to certain bilateral treaties. The United States believes that by virtue of this position it is entitled to be one of the 'states directly concerned' in all mandated territories.

However, it is the view of this Government that in the interest of speeding up conclusion of trusteeship agreements it would be desirable to limit the number of negotiating states to a minimum, and in line with this principle it is felt that the most desirable procedure would be that the present mandatory powers should propose draft terms of trusteeship and that other particularly interested powers should be consulted in regard to these terms before they are actually submitted to the General Assembly for approval.

This procedure is proposed on the condition that the other interested powers agree to the principle of consultation as described above without pressing claims to be signatories to the terms of trusteeship for the territory.

[Text of Enclosure] [4]

DRAFT TRUSTEESHIP AGREEMENT FOR NEW GUINEA AS PROPOSED BY THE GOVERNMENT OF AUSTRALIA WITH REVISIONS SUGGESTED BY THE GOVERNMENT OF THE UNITED STATES PREAMBLE

Australian Draft Suggested Revision

The Territory of New Guinea No Change has been administered in accord- ance with Article 22 of the Coven- ant of the League of Nations and in pursuance of a mandate conferred upon His Britannic Majesty and exercised on his behalf by the Government of the Common- wealth of Australia.

The Charter of the United Nations signed at San Francisco on 26 June, 1945, provides by Article 75, for the establishment of an international trusteeship system for the adminis- tration and supervision of such territories as may be placed there- under by subsequent individual agreements.

The Government of Australia now undertakes to place the Terri- tory of New Guinea under the Trusteeship System on the terms set forth in the present Trusteeship Agreement.

Therefore the General As- sembly of the United Nations, act- ing in pursuance of Article 85 of the Charter, approves the follow- ing terms of trusteeship for the Territory of New Guinea, in sub- stitution for the terms of the man- date under which the Territory has been administered.

Comment: While willing to accept the Australian draft for the Pre- amble, this Government raises the question as to whether the phrase 'having satisfied itself that the agreement of the states directly concerned including the mandatory power has been obtained' which has been used in the French, Belgian, and British draft trusteeship agreements should not be included here as well.

ARTICLE 1

The territory to which this No Change Trusteeship Agreement applies (hereinafter called the Territory) consists of that portion of the island f New Guinea and the group of islands administered therewith under the mandate dated 17th December, 1920 conferred upon His Britannic Majesty and exer- cised by the Government of Aus- tralia.

ARTICLE 2

The Government of Australia The Government of Australia (hereinafter called the Administer- (hereinafter called the Administering ing Authority) is hereby designated ing Authority) is hereby designated as the sole authority which will ex- as the Administering Authority for ercise the administration of the New Guinea on behalf of the Territory. United Nations.

Comment: This Government would be inclined to prefer that cog- nizance should be taken of the responsibility of the Administering Authority to the United Nations as trustee, but would be willing to accept a revision which would include the phrase 'on behalf of the United Nations'. This Government feels that this phrase describes the position of the United Nations more accurately.

ARTICLE 3

The Administering Authority No Change undertakes to administer the Terri- tory in accordance with the pro- visions of the Charter, and in such a manner as to achieve in the Terri- tory the basic objectives of the International Trusteeship System which are set forth in Article 76 of the Charter.

ARTICLE 4

The Administering Authority No Change will be responsible for the peace, order, good government, and de- fence of the Territory and for this purpose will have the same powers of legislation, administration and jurisdiction in and over the Terri- tory as if it was an integral part of Australia and will be entitled to apply to the Territory subject to such modifications as it deems de- sirable such laws of the Common- wealth of Australia as it deems appropriate to the needs and con- ditions of the Territory.

ARTICLE 5

It is agreed that the Adminis- The Administering Authority tering Authority in the exercise of may constitute the trust territory its powers under Article 4 will be at into a customs, fiscal, or adminis- liberty to bring the Territory into a trative union or federation with customs fiscal or administrative adjacent territories, where, such union or federation with other de- union or federation is not In- pendent territories under its juris- consistent with the basic objectives diction or control and to establish of the international trusteeship common services between the Ter- system and with the terms of this ritory and any or all of these terri- agreement.

tories if, in its opinion, it would be in the interests of the Territory and not inconsistent with the basic ob- jectives of the Trusteeship System to do so.

Comment: The suggested revision is more concise and broader in scope.

ARTICLE 5a (new) 1. The Administering Auth- ority shall promote the develop- ment of political institutions suited to New Guinea. To this end, the Administering Authority shall as- sure to the inhabitants of New Guinea a progressively increasing share in the administrative and other services of the territory; shall develop the participation of the inhabitants of New Guinea in ad- visory and legislative bodies and in the government of the territory, both central and local, as may be appropriate to the particular cir- cumstances of the territory and its peoples; and shall take all other appropriate measures with a view to the political advancement of the inhabitants of New Guinea towards the objectives of self- government or independence as prescribed in Article 76(b) of the United Nations Charter.

2. The Administering Auth- ority shall collaborate fully with the Trusteeship Council in the conduct of any surveys of the development of the political insti- tutions and the capacity for self- government of the inhabitants of New Guinea which the Adminis- tering Authority and Trusteeship Council agree it would be useful to hold. The Administering Auth- ority and the Trusteeship Council shall likewise agree upon the time at which any such survey can use- fully be held, and upon the most appropriate methods of ensuring the free expression of the wishes of the local population during the conduct of such survey.

Comment: It would be of considerable value to specify the steps by which the inhabitants of the territory will accomplish their progressive development towards self-government. Such provisions would take ac- count of the great interest of peoples throughout the world in the procedures and techniques for the development of political expression and political institutions in non-self-governing areas. The suggested Article is identical with a draft for Tanganyika agreed upon by the British and American experts in London.

ARTICLE 5b (new) In pursuance of its undertaking to promote the social advancement of the inhabitants of the trust terri- tory, and without in any way limit- ing its obligations thereunder, the Administering Authority shall:

(1) prohibit all forms of slavery and slave trading;

(2) prohibit all forms of forced or compulsory labour except for essential public works and ser- vices as specifically authorized by the local administration with adequate remuneration and adequate protection of the welfare of the workers;

(3) control the traffic in arms and ammunition;

(4) control in the interests of the inhabitants the manufacture, importation and distribution of intoxicating spirits and bever- ages;

(5) regulate the traffic in opium and other dangerous drugs;

(6) promote full employment at adequate wages, with equal pay for equal work; improve work- ing conditions; assure freedom of association; and provide necessary social services;

(7) protect the health of the people through the improvement of housing and sanitation, ad- equate provision for medical care, the strict application of necessary quarantine regu- lations, public education con- cerning hygiene and nutrition, and training of qualified in- habitants for medical positions;

and (8) foster research in the biologi- cal, natural, and social sciences.

Comment: Paragraphs 1-4 of this Article are identical with the New Zealand draft for Western Samoa. Paragraphs 5-8 which were added by this Government are compatible with the provisions on human rights and freedoms in Articles 1 and 13 of the Charter. It is believed that the trusteeship system will be strengthened by the inclusion in the terms of the trusteeship agreement of desirable principles of administration, per- haps all of which have already been incorporated by Australia in the mandated territory.

ARTICLE 5c (new) The Administering Authority shall, as may be appropriate to the circumstances of the territory, con- tinue and extend a general system of elementary education designed to abolish illiteracy and to facilitate the vocational and cultural ad- vancement of the population, child and adult, and shall similarly pro- vide such facilities as may prove desirable and practicable in the interests of the inhabitants for qualified students to receive sec- ondary and higher education, in- cluding professional training.

Comment: A similar provision is contained in Article 11a of the Tan- ganyika draft agreed upon by British and American experts in London.

ARTICLE 6

The Administering Authority The Administering Authority further undertakes to apply in the undertakes to apply in New Guinea Territory the provisions of such the provisions of any international international agreements and such conventions and recommendations recommendations of specialised already existing or hereafter drawn agencies referred to in Article 57 of up by the United Nations or by the the Charter as are in the opinion specialized agencies referred to in of the Administering Authority Article 57 of the Charter, which suited to the needs and conditions may be appropriate to the particu- of the Territory and conducive to lar circumstances of the territory the achievement of the basic objec- and which would conduce to the tives of the Trusteeship System. achievement of the basic objectives of the International Trusteeship System.

Comment: This Article is identical with Article 7 of the Draft Agree- ment for Tanganyika as agreed upon by the British and American experts in London.

ARTICLE 6a (new) The Administering Authority may arrange for the cooperation of New Guinea in any regional ad- visory commission, regional tech- nical organization, or other volun- tary association of states, any specialized international bodies, public or private, or other forms of international activity not inconsist- ent with the Charter of the United Nations.

Comment: This Article seems particularly appropriate for New Guinea in view of progress being made in establishing a Regional Com- mission for dependent territories in the South West Pacific. It is identical with Article 12b of the Draft Agreement for Tanganyika agreed upon by British and American experts in London.

ARTICLE 6b (new) 1. In framing the laws to be ap- plied in New Guinea the Adminis- tering Authority shall take into consideration New Guinea cus- toms and usages and shall respect the rights and safeguard the interests both present and future of the New Guinea population.

2. In particular, the laws relat- ing to the holding or transfer of land and resources shall ensure that no Native land or resources may be transferred save with the prior con- sent of the competent public auth- ority and that no right over Native land or resources in favor of any person not a New Guinean may be created except with the same con- sent.

Comment: The suggested revision except for the words 'and resources' added to provide protection for native resources as well as land is identical to the text of the New Zealand draft agreement for Western Samoa.

It is felt that adequate provision for the rights of natives as to their lands and resources is important and serves as a guarantee against exploitation.

ARTICLE 6c (new) The Administering Authority shall ensure in the territory free- dom of conscience and the free exercise of all forms of worship, and shall allow missionaries, nationals of any State Member of the United Nations, to enter into, travel and reside in the territory for the purpose of prosecuting their calling. The provisions of this Article shall not, however, affect the right and duty of the Adminis- tering Authority to exercise such control as it may consider necessary for the maintenance of peace, order and good government.

Comment: The suggested revision is identical with the New Zealand draft agreement for Western Samoa. It is felt that the guarantees for freedom of conscience and the free exercise of worship are fundamentally important.

ARTICLE 6d (new) Subject only to the require- ments of public order, the Admin- istering Authority shall guarantee to the inhabitants of the trust terri- tory freedom of speech, of the press, of assembly, and of petition, and freedom of migration and movement.

Comment: It is strongly urged that the above Article be inserted in the terms of agreement, since no where else in the trusteeship terms is there a direct statement of these fundamental guarantees. This is the same as Article 13a of the British draft agreement for Tanganyika with the ad- dition of the phrase 'freedom of migration and movement', which is a guarantee to the inhabitants of the trust territory, 'subject to the require- ments of public order', that they shall have the right to move around within and to leave the trust territory if they desire.

ARTICLE 7

The Administering Authority may [This Article, and its relation take all measures in the Terri- to this Government's proposal of tory which it considers desirable to March 14, 1946 concerning the de- provide for the defence of the Ter- sire of the United States to obtain ritory and for the maintenance of joint rights with Australia in cer- international peace and security. tain installations in the Admiralty Islands, are still under consider- ation. The views of this Govern- ment on this matter will be communicated to the Australian Government in the near future.]

ARTICLE 8 (new) 1. The Administering Auth- ority shall secure to the nationals of all Members of the United Nations and to companies and associations organized in conformity with the laws of such Members the same rights in the trust territory, subject to security considerations, as are enjoyed therein by the nationals of the Administering Authority.

2. With respect to the trust ter- ritory, the Administering Auth- ority shall ensure to nationals of all Members of the United Nations and to companies and associations organized in conformity with the laws of such Members and on the same footing as to its own nation- als, freedom of transit and navi- gation by land, sea, and air, and equal treatment in the adminis- tration of justice and in economic, commercial, and industrial mat- ters, subject only to the require- ments of public order and of considerations of security, and on condition of compliance with the law of the trust territory.

3. Nothing in this agreement shall entitle any Member of the United Nations to claim for itself or for its nationals, companies, and associations the benefits of this Article in any respect in which it does not give to the nationals, companies, and associations of New Guinea equality of treatment with the nationals, companies, and associations of any other state.

Comment: Comparable provisions, with the exception of paragraph 4 [5], are included in the British draft agreement for Tanganyika (Articles 9 and 11). Paragraph 4 is identical with provisions which are being discussed with the British and New Zealand Governments. The United States has consistently held that, as a member of the Principal Allied and Associated Powers, it 'can not be excluded from the benefits of the principle of equality of treatment' with the mandatory in mandated territories.

The 'open-door' principle in mandated territories is made subject to security considerations; and provision is made for the development of reciprocal rights for the inhabitants of the trust territory in the territories of the Member nations. The suggested Article sets forth the framework within which the Administering Authority is to carry out the objectives set forth in Article 76(d) of the Charter.

ARTICLE 9 (new) The Administering Authority shall recognize the General As- sembly, and the Trusteeship Coun- cil acting under the authority of the General Assembly, as exercising the functions of the United Nations with regard to this agree- ment. The Administering Auth- ority further undertakes to collab- orate fully with the General As- sembly and the Trusteeship Coun- cil in the discharge of all their functions as defined in Article 87 of the Charter of the United Nations, and to facilitate any periodic visits to New Guinea which they may deem necessary, at times to be agreed upon with the Administer- ing Authority.

Comment: The first sentence is suggested to perfect the form of the agreement, i.e. the organs of the United Nations which shall exercise the functions of the United Nations in the trust territory.

ARTICLE 10 (new) The Administering Authority shall make to the General As- sembly of the United Nations an annual report on the basis of a ques- tionnaire drawn up by the Trustee- ship Council in accordance with Article 88 of the United Nations Charter [and shall submit such special reports upon particular mat- ters as may be called for by the General Assembly or the Trustee- ship Council]. Such reports shall include information concerning the measures taken to give effect to suggestions and recommendations of the General Assembly and the Trusteeship Council. The Admin- istering Authority shall designate an accredited representative to be present at the sessions of the Trusteeship Council at which the reports of the Administering Auth- ority with regard to New Guinea are considered.

Comment: This is the same as Article 13 of the draft agreement for Tanganyika agreed upon by the British and American experts in London, except for the bracketed portion which is still under consideration. The provision for accredited representatives was agreed upon by the Prepa- ratory Commission of the United Nations and properly belongs in a trusteeship agreement.

ARTICLE 11 (new) The terms of this agreement shall not be altered or amended ex- cept as provided in Article 79 of the Charter of the United Nations.

Comment: The suggested revision is identical with text of the New Zealand draft agreement for Western Samoa.

ARTICLE 12 (new) If any dispute should arise between the Administering Auth- ority and another Member of the United Nations, relating to the in- terpretation or application of the provisions of this agreement, such dispute, if it cannot be settled by negotiation or similar means, shall be submitted to the International Court of Justice set up under Chapter XIV of the Charter of the United Nations.

Comment: The suggested revision is identical with text of the New Zealand draft agreement for Western Samoa.

1 See Document 67, note 2.

2 Attachment.

3 See Volume IX, Document 127.

4 All square brackets shown in this enclosure were so typed in the original.

5 Presumably a reference to paragraph 3 of Article 8 was intended.

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