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.