United Nations Trusteeship System
Andriy Y Melnyk
- Practice and procedure of international organizations
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 The International Trusteeship System was established in 1945 under the authority of the United Nations (UN) in accordance with Chapters XII and XIII UN Charter for the administration and supervision of a certain category of non-self-governing territories in the aftermath of World War II. The trusteeship regime can be regarded as a successor of the mandate system under the League of Nations (‘League’). Since the principal objective of the UN Trusteeship System (‘TS’) has been to govern the territories placed thereunder (‘trust territories’) for the benefit of their inhabitants and promote their progressive development towards self-governance or independence, it logically implies that the TS was contemplated as a transitional phenomenon designed to gradually reach the latter goal. This understanding was confirmed by UN Secretary-General (‘UNSG’) Trygve Lie, at the very first meeting of the UN Trusteeship Council (‘UNTC’) on 26 March 1947, as he predicted that ‘full success, incidentally, will put this organ out of existence’ (Trusteeship Council 4th Meeting [28 March 1947] TCOR 1st Session 58, 79). Although, the ultimate aim of the TS was, paradoxically, its self-liquidation, the founding fathers of the UN could hardly imagine that this purpose, powered by the decolonization process, would be realized in less than half a century. Hence, after all 11 territories placed under trusteeship had gained independence or joined neighbouring States, the UNTC completed its mandate and suspended operations on 1 November 1994.
2 Even though a plethora of proposals, both within the UN and at the doctrinal level, have been put forward to abolish or reactivate the trusteeship regime, due to hardly surmountable political and legal restraints these initiatives have led nowhere. Although, at the 2005 World Summit the UN General Assembly (‘UNGA’), after a decade of deliberations, finally recommended abolition of the UNTC, this decision will, most likely, not be implemented in the near future. Irrespective of the orderly demise of the TS and the quiescent status of the UNTC, the very idea of international trusteeship, laid down both in the Covenant of the League of Nations ([signed 28 June 1919, entered into force 10 January 1920]  225 CTS 195) and the UN Charter, still remains an attractive legal notion. Due to successful experience of the TS and notwithstanding patrimonial connotations, trusteeship surprisingly preserves a certain magnetism, particularly as a potential model for present or future instances of the international administration of territories. Although stricto sensu application of the TS provisions to such cases is questionable, the main principles of the emerging ‘international trusteeship law’ continue to retain their legacy and can, therefore, offer practical guidance even beyond the trusteeship system.
3 As fideicommissum the concept of trusteeship has been known since Roman law. On the international plane, this notion resurfaced in the context of European expansionism and colonialism. In this sense, trusteeship implied that a colony was to be administered not in the sole interest of the imperial power, but as a trust for the benefit of the colony’s inhabitants. This idea was justified by the theory which survived until the 20th century that since ‘uncivilized’ peoples were unable to govern themselves they had to be placed under ‘guardianship’ or ‘tutelage’ of a more ‘advanced’ nation to provide ‘civilized’ governance. The first concepts of trusteeship seemed to gain recognition in the Spanish legal school of the 16th century, especially in the writings of Francisco de Vitoria regarding the colonial rule over the conquered Indians in America. However, it was only at the end of the 18th century that, as a consequence of the spread of liberal thought, the enlightened ‘trusteeship’ perception of colonialism and the celebrated notion of ‘sacred trust of civilization’ were formulated by the English statesman Edmund Burke regarding India, then ruled by the East India Company. Since then the idea of trusteeship was repeatedly used in State practice, eg by the United States with respect to the Native American nations or the populations of the Philippines and Cuba in the 19th century. Nonetheless, probably the first precedent of trusteeship involving international responsibility was established with the conclusion of the General Act of the Conference of Berlin respecting the Congo ([signed 26 February 1885, entered into force 19 April 1886]  165 CTS 485 [Congo Act]; Berlin West Africa Conference [1884–85]) which envisaged obligations of colonial powers to promote the development of the indigenous population in the Congo region (Art. 7). After World War I these developments eventually led to the creation of the first full-fledged international trusteeship regime of mandates under the League designed for the former colonies of the German and Ottoman Empires as ‘peoples not yet able to stand by themselves’ (Art. 22 (1) Covenant of the League of Nations). The mandate regime was to operate ‘in the interest of the inhabitants of the territory, and of humanity in general, as an international institution with an international object—a sacred trust of civilization’ (International Status of South-West Africa [Advisory Opinion] 132; ‘South-West Africa Case’; South West Africa/Namibia [Advisory Opinions and Judgments]). The outbreak of World War II and the subsequent cessation of the League’s work inevitably raised the question of the future status of territories held under mandate as well as other dependent territories. This issue became the subject of fierce diplomatic negotiations between the Allied Powers during the war. The US proposals for the internationalization of these territories (including colonies) until they would be prepared for self-government or independence were persistently rejected by the Allies, particularly the United Kingdom (‘UK’) and France. Eventually a compromise was reached at the Yalta Conference (1945), whereas the main features of the International Trusteeship System were elaborated by the future permanent members of the UN Security Council (‘UNSC’) and adopted at the UN Conference on International Organization in San Francisco (1945) as Chapters XII and XIII UN Charter.
C. Establishment and Functioning
4 The very establishment of the TS was not automatic. Its inauguration was, on the one hand, made conditional upon the political will of unidentified ‘states directly concerned’ (Art. 79 UN Charter) that might voluntarily conclude trusteeship agreements with respect to individual trust territories (Art. 77 (1) UN Charter). On the other hand, the very creation of the TS equally depended upon the institution of the UN supervisory machinery.
5 The principles of the TS are enshrined in Art. 76 UN Charter as the ‘basic objectives’. They constitute the core of the system encapsulating its quintessence. The purposes of the TS go far beyond both the provisions of the mandate system laid down in Art. 22 Covenant of the League of Nations as well as those of Art. 73 UN Charter dealing with non-self-governing territories. The common denominator of these legal regimes is the promotion of the interests and welfare of the inhabitants of territories concerned. However, whereas the Chapter XI administration was initially aimed at developing self-governance, the distinctive feature of the TS consists of its underlying goal, namely progressive development of the population of trust territories ‘towards self-government or independence’ (Art. 76 (b) UN Charter). While independence clearly implies external sovereignty, self-governance rather means internal self-determination within another political entity. The achievement of one of the two alternatives which depends upon the democratically expressed will of the peoples concerned is to be considered as the TS’s overarching purpose. It prescribes that the activities of the administering authorities shall be subordinated to this key objective and simultaneously should constitute the yardstick for the international supervision under the TS. As regards the legal nature of obligations arising under Art. 76 UN Charter, they can be best characterized as the obligations ‘of result’ as fittingly described by the International Law Commission (ILC) (‘Report of the International Law Commission on the Work of its Twenty-Ninth Session’ [9 May–29 July 1977] GAOR 32nd Session Supp 10, 18–33). Though the ‘basic objectives’ of the TS obliged the administrating authority to attain a particular result, they left it with discretion as to the choice of methods to be adopted.
6 In accordance with Art. 76 (b) UN Charter, the major objectives of self-government or independence shall be reached by means of promoting ‘the political, economic, social, and educational advancement of the inhabitants of the trust territories’. More specific obligations in this respect were laid down in parallel provisions of trusteeship agreements. Thus, with reference to ‘political advancement’, the administering authority has to develop ‘free political institutions’, assure to the local population ‘a progressively increasing share’ in the administration of trust territory, and expand the participation of the inhabitants in its executive and representative bodies, among other things. (Art. 6 Trusteeship Agreement for the Territory of the Cameroons under British Administration; ‘Cameroons Agreement’). As a counterpart of this obligation, the duty to further ‘economic advancement’ primarily deals with the protection of land rights and natural resources, but also with ensuring long-term planning of economic development, diversification of the economy, and the sufficiency of public finances, among other things. These wide-ranging commitments of the administering authority are complemented by the obligations to promote ‘social’ and ‘educational’ advancement of the indigenous population encompassing inter alia the improvement of the medical and educational facilities (Education, Right to, International Protection) or the prohibition of forced labour/slave labour or corporal punishment. Due to the paramount significance of these duties for the attainment of self-government or independence, the main attention within the UN supervisory machinery was focused upon the fulfilment of the standards laid down in Art. 76 (b) UN Charter.
7 Among other ‘basic objectives’ of the TS, closely linked to those mentioned above, Art. 76 (c) UN Charter prescribes the encouragement of respect for human rights and fundamental freedoms for all without distinction. Consequently, the administering authorities are in particular obliged to eliminate any discrimination, especially on racial grounds, and encourage the understanding of interdependence between the nations, as well as guarantee to the inhabitants of trust territories the freedom of conscience and belief, the freedom of speech and press, the freedom of assembly, the freedom of migration and movement, and the right to petition. Further, according to Art. 76 (a) UN Charter, the TS is also aimed at furthering international peace and security. In addition, Art. 84 UN Charter obligates the administering authority to make sure that the trust territory ‘shall play its part’ in this process. This obligation presupposes not only measures of a purely military character (eg defence of the territorial integrity of the trust territory from aggression, establishment of facilities like naval or air bases, erection of fortifications, employment of volunteer forces), but also through a foreign policy aimed at avoiding international confrontation. The last of the TS ‘basic objectives’ laid down in Art. 76 (d) UN Charter was of minor importance, having reintroduced the principle of the open-door policy with the duty to ensure equal treatment for all UN members and their nationals, eg concerning the freedom of transit or navigation.
2. Sphere of Application
8 Art. 77 (1) UN Charter explicitly enumerates categories of territories that may be brought to the TS according to individual agreements (Arts 77 (2), 79 UN Charter). The UN Charter envisions three types of trust territories: those ‘held under mandate’ (Art. 77 (1) (a)); those ‘detached from enemy states’ as a result of war (Art. 77 (1) (b)); and those ‘voluntarily placed under the system by states responsible for their administration’ (Art. 77 (1) (c)). Since the term ‘voluntarily’ applies to all three categories, there was no obligation of the mandatory authorities to automatically place their mandates under the TS. This approach was upheld by the International Court of Justice (ICJ) in the South-West Africa Case. Nevertheless, all former mandatory powers, with two exceptions (South Africa regarding South-West Africa [Namibia] and the UK with respect to Palestine), consented to bring their B mandates into the TS and submitted draft trusteeship agreements to the UNGA. These instruments, as well as the agreement for Somaliland prepared within the UNTC, were duly approved by the UNGA (Art. 85 UN Charter). The draft trusteeship agreement forwarded by the US regarding the occupied Pacific Islands was endorsed by the UNSC according to Arts 82 and 83 (1) UN Charter (Strategic Areas).
9 Irrespective of their sui generis character, trusteeship agreements in the sense of Chapter XII UN Charter can be considered as treaties between an administering power and the UN intended to be binding and containing rights and obligations under international law. The legal nature of trusteeship agreements found its confirmation by the ICJ (South-West Africa Case). Each agreement is registered as a treaty by the UNSG according to Art. 102 UN Charter. Being similar in substance, provisions of the trusteeship agreements spelt out in more detail the rights and obligations of the administering powers. As regards the status of trust territories, even though they enjoyed a certain degree of international personality, these territories could hardly be deemed subjects of international law.
10 The TS has comprised 11 territories. Ten were former B mandates under the League and just one (Somaliland) belonged to the category of ‘detached from enemy states’. The third option enshrined in Art. 77 (1) (c) UN Charter was never used. The following eight territories were placed under the TS and established by UNGA Resolution 63 (I) of 13 December 1946 (‘Approval of Trusteeship Agreements’ GAOR 1st Session Part II Resolutions 122): Cameroons (the former mandate of British Cameroons), Togoland (the former British Togoland) and Tanganyika, all three being under UK administration; Cameroons (the former mandate of French Cameroons) and Togoland (French Togoland), both administered by France; Ruanda-Urundi (administered by Belgium); Western Samoa (administered by New Zealand); and New Guinea (administered by Australia). In addition, the Strategic Trust Territory of the Pacific Islands (the former Japanese C mandate administered by the US; approved by UNSC Res 21 [(1947) (2 April 1947) SCOR 2nd Year 16; 10]), Nauru (administered by Australia on behalf of Australia, New Zealand and the UK; endorsed by UNGA Res 140 (II) [‘Proposed Trusteeship Agreement for Nauru’ (1 November 1947) GAOR 2nd Session Resolutions 471]), and Somaliland (administered by Italy; approved by UNGA Res 443 (V) [‘Administrative Unions Affecting Trust Territories’ (12 December 1950) GAOR 5th Session Supp 20, 54]) were also placed under the TS.
11 Even though only these 11 territories have been brought to the TS, a number of other areas seemed equally entitled for the admission thereto, foremost the only remaining A mandate of Palestine and the South African C mandate of South-West Africa. It is illustrative that the failure to place these territories under the TS subsequently led to a protracted Arab-Israeli conflict (in the former case) and prolonged legal proceedings before the ICJ (in the latter). Despite unilateral withdrawal of the UK as the mandatory of Palestine the UN did not intend to convert it into a trust territory, but rather endeavoured to create separate Jewish and Arab States (UNGA Res 181 (II) ‘Future Government of Palestine’ [29 November 1947] GAOR 2nd Session 131). The UNGA proposal under UNGA Resolution 181 (II) to establish the City of Jerusalem ‘as a corpus separatum under a special international regime’ endowing it with a status akin to trusteeship with the UNTC as the administering authority could not be realized, even though the UNTC, going beyond its competence according to the UN Charter, expressed readiness to assume these functions and prepared a draft ‘Statute for the City of Jerusalem’ ([4 April 1950] 19 GAOR 5th Session Supp 9, 19).
12 As regards other potential candidates for trusteeship among territories ‘detached from enemy states’, mention should be made of the former Italian colonies Libya and Eritrea. While proposals to transfer Eritrea and the three regions of Libya (Fezzan, Tripolitania, and Cyrenaica) to the TS did not find sufficient support within the UNGA (UNGA Res 289 (IV) ‘Question of the Disposal of the Former Italian Colonies’ [21 November 1949] GAOR 4th Session Resolutions 10), nor did plans to establish a joint trusteeship over Korea, previously annexed by Japan, materialize. Although, according to Art. 3 Peace Treaty with Japan (1951) ([signed 8 September 1951, entered into force 28 April 1952] 136 UNTS 45) Japan was obliged to endorse proposals of placing under the TS Ryukyu and some other islands administered by the US, this commitment was not implemented. Eventual proposals of trusteeship for the Kuril Islands were blocked by the Soviet Union. Though there were doctrinal propositions to transfer to the TS some other areas ‘detached from the enemy’, eg the German Eastern territories (Ostgebiete) (Germany, Occupation after World War II; Oder-Neisse Line), it is doubtful that these would have been eligible for trusteeship.
3. Supervisory Machinery
(a) Institutional Framework
13 International supervision lies at the very heart of the TS. Art. 75 UN Charter provides for stringent control to be exercised by the UN through its principal organs. The supervisory mechanism set up in Art. 87 UN Charter has in fact been an important instrument to secure compliance by the administering authorities with their obligations according to Chapters XII and XIII. Whereas the main overseeing tasks of the TS were entrusted to the UNTC, other principal organs (foremost the UNGA and UNSC) also played a part in the exercise of trusteeship functions.
(i) General Assembly
14 The overall responsibility for the operation of the TS (except for the strategic areas) was assigned to the UNGA (Art.16, 85 UN Charter). This competence included both the authority to place territories under trusteeship by approving individual trusteeship agreements and the supervision of the administering States. In this sense, the UNGA may be characterized as ‘the highest instance of review’ within the TS. Initially, it was not contemplated that the UNGA itself would exercise specific supervisory functions. Its authority had to be confined to considering developments in trust territories on the basis of regular reports of the UNTC (Arts 15 (2), 88 UN Charter). Actually, it is the UNTC where annual reports of the administering powers and individual communications were normally evaluated. However, since nothing in the UN Charter prevents the UNGA from dealing with concrete issues of the TS directly, the UNGA has occasionally sidestepped the UNTC by initiating hearings of petitioners or establishing investigation committees. Moreover, the UNGA used to make recommendations to the UNTC (eg regarding the form and contents of its annual reports or procedures of the UNTC concerning visiting missions and examination of complaints), though doubts were voiced whether the latter body was legally obliged to follow them.
(ii) Trusteeship Council
15 The UNTC has undoubtedly been the key organ of day-to-day supervision under the TS. Although the UNTC is defined as a ‘principal organ’ of the UN (Arts 7, 77 (1) UN Charter) which acts independently within its purview, it, nevertheless, is a subordinate body explicitly ‘operating under the authority’ of the UNGA for areas not designated as strategic (Arts 85 (2), 87 UN Charter). Under the UNGA’s aegis the UNTC assists the UNGA in carrying out the UN functions with respect to trusteeship. Thus, the activities of the UNTC, which operates as the agent of the UNGA, may be and, in fact, not infrequently have been, directly steered and reviewed by the UNGA relating to the supervisory functions of the TS. The only ‘exclusive’ function bestowed solely upon the UNTC is the formulation of the questionnaire on which annual reports of the administering authorities to the UNGA were to be based (Art. 88 UN Charter; UN Trusteeship Council Resolution 463 (XI) ‘Revision of the Provisional Questionnaire’ [6 June 1952] TCOR 11th Session Supp 1 vol 1, 1). As regards the supervision of strategic areas, the position of the UNTC is even weaker, since it merely assists the UNSC in the exercise of trusteeship functions according to Art. 83 (3) UN Charter without prejudice to security considerations.
16 The UNTC is the only principal organ whose size is changeable. According to Art. 86 (1) UN Charter the UNTC consists of three categories of States: UN Member States administering trust territories; permanent members of the UNSC that do not administer such territories; and as many members, elected by the UNGA for three-year terms, necessary to equate the number of administering and non-administering powers. Thus, the UNTC membership is based upon the principle of balance which became obsolete in 1968. Since 1975 the UNTC has been composed of the UNSC permanent members only. As regards decision-making, there is no veto right within the UNTC, whose decisions are made by a simple majority according to the one-State-one-vote principle (Art. 89 UN Charter). The UN Charter does not specify whether its decisions have a legally binding character.
(iii) Security Council
17 All functions of the UN with regard to strategic trust territories are allocated exclusively to the UNSC (Art. 83 UN Charter). Hence, the UNSC approved and terminated the sole trusteeship agreement for a strategic area. This competence evidently includes the same methods of supervision as enshrined in Art. 87 UN Charter, even though it is not explicitly mentioned in the UN Charter. This conclusion flows not only from Art. 13 Trusteeship Agreement for the Former Japanese Mandated Islands, but has also found confirmation in practice. The supervision procedure was adopted by UNSC Resolution 70 of 7 March 1949 (SCOR 4th Year 12). Thus, the UNSC has assumed a role identical to the UNGA in carrying out supervisory functions under Art. 87 UN Charter and fully availed itself of the assistance of the UNTC according to Art. 83 (3) UN Charter.
(iv) International Court of Justice
18 Although the UN Charter itself did not confer explicit competence on the ICJ with respect to supervisory functions of the TS, the ICJ did in fact play a significant role in ‘judicial supervision’ and the development of international trusteeship law. All trusteeship agreements explicitly provided for the ICJ’s jurisdiction in cases of disputes resulting from their interpretation or application. Thus, issues of State responsibility for the maladministration of trust territories or breaches of trusteeship agreements were raised in cases brought before the ICJ by the Republic of Cameroon against the UK (Northern Cameroons Case [Preliminary Objections] [(1963) ICJ Rep 15]) and by the Republic of Nauru against Australia (Certain Phosphate Lands in Nauru Case [Nauru v Australia] [Preliminary Objections] [(1992) ICJ Rep 240]; ‘Phosphate Case’). Whereas the former claim, in which the applicant alleged that the administering authority had failed to lead the peoples of Northern Cameroon to self-governance in accordance with Art. 76 (b) UN Charter, was held inadmissible, the latter case, where Nauru claimed costs for the rehabilitation of lands mined out during the trusteeship period, was more successful. Furthermore, the ICJ also possesses jurisdiction to give advisory opinions on legal matters concerning the TS at the request of the UNGA or other principal UN organs. Exercising this competence the ICJ has delivered three advisory opinions in connection with the TS: the South-West Africa Case; Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South-West Africa (Advisory Opinion) ( ICJ Rep 67); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) ( ICJ Rep 16; ‘Legal Consequences Opinion’).
(b) Methods of Supervision
19 With Arts 87 and 88 UN Charter, a rather innovative procedure for supervision of international administration of territories was introduced. It has significantly influenced the development of monitoring and enforcement regimes in other spheres of international law, foremost in human rights law, cases involving weapons of mass destruction, as well as international environmental law and others. The TS supervision rests upon three pillars: annual reports of the administering powers; individual petitions; and visiting missions. The UN Charter does not provide for an enforcement mechanism or sanctions in cases of non-compliance with obligations under the TS. The competence of the overseeing UN organs is limited to the examination of information obtained through the abovementioned channels. These bodies are not explicitly authorized to take any further action thereon. The UNTC has, nonetheless, adopted resolutions on various aspects of trusteeship administration which have been regularly published in its official records and included in annual reports to the UNGA or UNSC. Using its constitutional powers under Art. 10 UN Charter, the UNGA has, on the basis of these findings, made recommendations to the administering authorities with a view to influencing their policy. Even though these UNTC and UNGA decisions are not legally binding, they have generally been followed in practice.
(i) State Reports
20 Art. 87 (a) UN Charter empowers the UNGA and UNTC to ‘consider reports submitted by the administering authority’. With this competence the TS has taken over the key supervision method of the mandate system. The procedures under the TS are enhanced by the obligation of the administering authorities to prepare annual reports on the basis of a questionnaire formulated by the UNTC (Art. 88 UN Charter). The examination of these annual reports constituted the main activity of the UNTC.
(ii) Individual Petitions
21 According to Art. 87 (b) UN Charter the UNGA and UNTC are authorized to ‘accept petitions and examine them in consultation with the administering authority’. This competence presupposes a corresponding right of the inhabitants of trust territories to bring their concerns to the attention of the UN by forwarding individual or group communications, either directly, through the administering power, or via UNTC visiting missions. Whereas the majority of petitions were complaints of a personal character (eg relating to alleged discrimination, property losses), a number contained requests of a more general nature (eg concrete steps for attaining self-governance). In practice, all communications have been circulated to the UNTC and dealt with by this body or its Standing Committee on Petitions. Along with the written procedure, the UNTC also allowed oral hearings of petitioners. Upon examination of each petition the UNTC adopted a resolution. Whereas in some cases no action was called for or the UNTC merely drew attention of the petitioner to the observations of the administering authority and the respective debates and decisions within the Council, occasionally the UNTC requested the latter to inquire into the complaint and inform it of the results. Moreover, in some cases the UNTC recommended specific measures or actions to the administering State. Taking into account the impact of this activity, it seems indisputable that a sophisticated petition regime under the TS, together with the comparable mechanisms under the International Labour Organization (ILO), has considerably influenced the future development of the corresponding supervisory procedures in the field of human rights protection.
22 Art. 87 (c) UN Charter permits the UNGA and UNTC to perform ‘periodic visits to the respective trust territories’. This means of supervision has constituted a novelty in comparison to the mandate system. The timetable of such visiting missions was to be agreed with the administering authority. Though the UNTC rules of procedures did not stipulate how often each trust territory should be inspected, in practice, such visits took place on a three-year circle. In connection with every mission, the UNTC has adopted a resolution setting forth its terms of reference: principally to investigate and report on the steps of the administering authority towards realization of the TS objectives and give appropriate attention to questions raised in annual reports or petitions. The average duration of such visits in a single trust territory was about three weeks. In addition, the UNTC has been assigned the right to conduct special investigations or inquiries when it considers that the conditions in a trust territory make such action desirable.
D. Termination of the Trusteeship System
23 Neither the UN Charter nor the trusteeship agreements (except for Somaliland) contain provisions for the duration of individual trusteeship administrations or possible suspension of the TS as such. However, since the latter’s ultimate objective is the achievement of self-governance or independence by trust territories, it logically implies that a situation may arise when this goal has actually been reached. In fact, it took less than half a century until the abovementioned territories ceased to be under trusteeship. This has automatically raised the question whether the TS is to be regarded as obsolete, entrusted with further territories, furnished with new competence or terminated.
1. Self-Determination of the Trust Territories (1946–1994)
24 The first trusteeship was abolished within a decade of the TS’s establishment. In a referendum supervised by the UN in 1956, the majority of the population of British Togo, administered by the UK in a union with a non-self-governing territory of the Gold Coast, voted in favour of joining the latter to form the independent State of Ghana. Accordingly, the UNGA terminated the trusteeship agreement with UNGA Resolution 1044 (XI) of 13 December 1956 (‘The Future of Togoland Under British Administration’ GAOR 11th Session Supp 17, 24). The next territory to be released from the TS was Cameroons under French administration. In agreement with France, and after the approval of UNGA Resolution 1349 (XIII) of 13 March 1959 (‘The Future of the Trust Territory of the Cameroons under French Administration’ GAOR 13th Session Supp 18 vol 1, 1), it became independent as the Republic of Cameroon on 1 January 1960. After a transitory period as an autonomous republic within the French Union, following a referendum in 1956, Togo, another French trust territory, attained independence as the Republic of Togo on 27 April 1960 after an agreement was reached between France and the local legislative body, elected under UN supervision. This was approved by UNGA Resolution 1416 (XIV) of 5 December 1959 (‘Date of the Independence of the Trust Territory of Togoland under French Administration’ GAOR 14th Session Supp 16, 32).
25 Italian Somaliland, the only territory with the fixed ten year period of trusteeship, followed next. After joining the former protectorate of British Somaliland, it became independent on 1 July 1960 as the Somali Republic in accordance with UNGA Resolution 1418 (XIV) of 5 December 1959 (‘Date of the Independence of the Trust Territory of Somaliland under Italian Administration’ GAOR 14th Session Supp 16, 33). The next trust territory to leave the TS was the British Cameroons. After a plebiscite on 11 February 1961, the population in the northern part of the British Cameroons favoured a union with the neighbouring Republic of Nigeria, coming into effect on 1 June 1961, whereas the inhabitants in the south voted for incorporation into the Republic of Cameroon, the former French trust territory, which took place on 1 October 1961. The respective trusteeship agreement was terminated by UNGA Resolution 1608 (XV) of 21 April 1961 (‘The Future of the Trust Territory of the Cameroons under United Kingdom Administration’ GAOR 15th Session Supp 16 vol 2, 10). After the elections in 1960 and the subsequent agreement with the UK, another British-administered trust territory, Tanganyika, achieved independence on 9 December 1961. The termination of the trusteeship agreement was approved by UNGA Resolution 1609 (XV) of 21 April 1961 (‘The Future of Tanganyika’ GAOR 15th Session Supp 16 vol 2, 11) and UNGA Resolution 1642 (XVI) of 6 November 1961 (‘The Future of Tanganyika’ GAOR 16th Session Supp 17 vol 1, 34). Together with the former protectorate of Zanzibar, Tanganyika formed the United Republic of Tanganyika and Zanzibar in 1964 (later that year renamed as the United Republic of Tanzania).
26 The first trust territory in the Pacific region to attain independence was Western Samoa (known as Samoa since 1997) which proclaimed independence on 1 January 1962 after a UN-supervised plebiscite. This trusteeship agreement was terminated by UNGA Resolution 1626 (XVI) of 18 October 1961 (‘The Future of Western Samoa’ GAOR 16th Session Supp 17 vol 1, 33). According to the 1962 Treaty of Friendship between the Government of New Zealand and the Government of Western Samoa ([signed and entered into force 1 August 1962] 453 UNTS 3), the former, as the previous administrative authority, shall ‘afford assistance to the Government of Western Samoa in the conduct of its international relations’ as long as it wishes (Art. 5). Even though there were clear signs that the Belgium-administered territory of Ruanda-Urundi was hardly prepared for statehood, particularly due to its slow political advancement and incidents of ethnic cleansing, after a plebiscite it was divided into the two sovereign States of Burundi and Rwanda on 1 June 1962 (termination of trusteeship by UNGA Res 1746 (XVI) [‘The Future of Ruanda-Urundi’ (27 June 1962) GAOR 16th Session Supp 17 vol 1, 1]). Hence, eight out of eleven trusteeships were terminated within a short period of fifteen years.
27 The next trust territory to achieve independence was the pacific island of Nauru, on 31 January 1968. The trusteeship agreement was terminated by UNGA Res 2347 (XXII) of 19 December 1967 (‘Question of the Trust Territory of Nauru’ GAOR 22nd Session Supp 16, 50). Nauru was followed by New Guinea, also administered by Australia, though in an administrative union with the non-self-governing territory of Papua. After a short period of self-governance, it became independent as Papua New Guinea on 16 September 1975 after the trusteeship’s termination by UNGA Resolution 3284 (XXIX) of 13 December 1974 (‘Question of Papua New Guinea’ GAOR 29th Session Supp 31 vol 1, 97). The termination of the trust territory of the Pacific Islands, under US administration, the only one designated as a strategic area according to Arts 82 and 83 UN Charter, was a rather gradual process. On 22 December 1990 the UNSC in Resolution 683 (1990) of 22 December 1990 (SCOR 45th Year 29) terminated the applicability of the trusteeship agreement regarding three regions of this trust territory: the Federated States of Micronesia; the Republic of the Marshal Islands (becoming fully self-governing in free association with the US); as well as the Northern Mariana Islands (reaching full self-governance as a Commonwealth in political union with the US). On 10 November 1994, the UNSC by Resolution 956 (1994) of 10 November 1994 (SCOR 49th Year 128) terminated the status of a strategic trust territory for the island of Palau as an independent State freely associated with the US.
2. Attempts to Amend the UN Charter (1994–2005 and Beyond)
28 Since Palau’s independence in 1994 there has been no territory under the TS. Therefore, the UNTC suspended its activities and amended its rules of procedure ‘to meet as and where occasion require’ (UN Trusteeship Council Resolution 2200 (LXI) ‘Amendment of the Rules of Procedure of the Trusteeship Council’ [25 May 1994] UN Doc T/Res/2200). Nevertheless, in his annual report that year the UNSG recommended ‘that the UNGA proceed with steps to eliminate [the UNTC] in accordance with Article 108 of the Charter’ (UNGA ‘Report of the Secretary-General on the Work of the Organization’ para. 46). However, upon Malta’s request (UNGA ‘Request for the Inclusion of an Item in the Provisional Agenda of the Fiftieth Session: Review of the Role of the Trusteeship Council: Letter Dated 2 June 1995 from the Permanent Representative of Malta to the United Nations Addressed to the Secretary-General’ [16 June 1995] UN Doc A/50/142; ‘UNGA Malta Request’) the item ‘Review of the Role of the UN Trusteeship Council’ was included in the UNGA agenda (UNGA ‘Organization of the Fiftieth Regular Session of the General Assembly, Adoption of the Agenda and Allocation of Items’ [20 September 1995] UN Doc A/50/250). After proposals to enhance the UNTC received support within the UNGA, the newly elected UNSG Kofi Annan in his report ‘Renewing the United Nations: A Programme for Reform: Report of the Secretary General’ (‘UNSG Report’) introduced a ‘new concept of trusteeship’ (para. 84). Noting that ‘Member States appear to have decided to retain’ the UNTC, the UNSG recommended ‘therefore, that it be reconstituted as the forum through which Member States exercise their collective trusteeship for the integrity of the global environment and common areas such as the oceans, atmosphere and the outer space’ (UNSG Report para. 85). According to the then UNSG’s view, the UNTC also ‘should serve to link the United Nations and civil society in addressing these areas of global concern’ (ibid). In parallel, the Special Committee on the UN Charter and on Strengthening of the Role of the Organization considered, upon UNGA request, proposals pertaining to the UNTC, but, due to divergent views, it was not able to make any recommendation (see for example UNGA ‘Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization’ [5 March 1996] GAOR 51st Session Supp 33; ‘UNGA Report’). Equally, the ‘new concept of trusteeship’ of the UNSG, mentioned above, received a less than enthusiastic response (UNGA Plenary Meeting [27 April 1998] GAOR 52nd Session 83rd Plenary Meeting, 1). A task force set up by the UNSG (UNGA ‘United Nations Reform: Measures and Proposals: A New Concept of Trusteeship: Note by the Secretary-General’ [31 March 1998] UN Doc A/52/849) under the auspices of the United Nations Environment Programme (UNEP) did not succeed in producing any results regarding a ‘possible role of a reconstituted United Nations Trusteeship Council’ (UNGA ‘Environment and Human Settlements: Report of the Secretary-General’ [6 October 1998] paras 61–64).
29 Subsequently, the UN High-Level Panel on Threats, Challenges, and Change, convened by the UNSG, was seized with the issue. Though this body stressed that the UNTC ‘performed an important task in helping the world emerge from the era of colonialism’, it came to the conclusion that Chapter XIII UN Charter ‘should be deleted’ (UN High-Level Panel on Threats, Challenges, and Change ‘A More Secure World: Our Shared Responsibility’ para. 299). In his report ‘In Larger Freedom: Towards Development, Security and Human Rights for All’, the UNSG concurred with this approach stressing that the UNTC ‘having successfully carried out its functions, is now reduced to a purely formal existence’ (para. 165). Though underlining that the UNTC ‘played a vital role in raising standards of administration in the trust territories and promoting the wider process of decolonization’, the UNSG noted that ‘its work is long since complete’ and supported the UNTC abolishment (para. 218). This position was endorsed by the heads of State and government at the 2005 World Summit Outcome (UNGA Resolution 60/1 of 24 October 2005). Considering that the UNTC ‘no longer meets and has no remaining functions’, the UNGA stated that ‘we should delete Chapter XIII of the Charter and references to the Council in Chapter XII’ (UNGA Res 60/1 para. 176).
30 It shall be noticed, however, that this UNGA decision has not been implemented. As such, it cannot be regarded as the first stage of a UN Charter amendment procedure outlined in Art. 108. In any case, the abolition of the UNTC can only take place after two-thirds of the Member States, including the UNSC permanent members, have ratified the proposed changes. Due to this high barrier, the elimination of the UNTC seems only feasible in the course of a comprehensive UN reform. Since amending the UN Charter is a rather complex exercise, it was fittingly stressed that it ‘should not be undertaken for the mere intellectual satisfaction of removing texts pertaining to a non-working organ’ (UNGA Report para. 103). Thus far the UNTC has continued to meet regularly to elect its president and vice-president. Even if the proposed UN Charter revision would be completed and the UNTC disbanded, the TS will still exist and may be potentially utilized within a modified institutional framework, even though such a scenario hardly seems realistic.
E. De Lege Ferenda Proposals to Revive and Extend the Application of the Trusteeship System
31 Doctrinal ideas to provide the UNTC with additional functions or assign to the TS a new role had been frequently expressed even before the actual termination of the last trusteeship agreement and the suspension of the UNTC functions in 1994.
1. Failing States, Disputed or Occupied Territories
32 The emergence of failed or collapsed States, such as Haiti, Liberia, Rwanda, and Somalia, has prompted the international community to search for an adequate response to this phenomenon. One of the proposed paradigms has been to transfer the task of administration of such failing States to a revitalized UNTC. Thus, it has been argued that the UNTC could complement the leading role of the UNSC in recent cases of UN involvement by assuming responsibility for governance functions. However, there is a divergence of views whether the UNTC would be competent to deal with such situations. Whereas some commentators suggest that the UN Charter allows trusteeship for failing States (eg Kiderlen 226), others observe that the application of the TS could only be possible after a UN Charter amendment (eg Chesterman 47; Stahn 440). Ultimately, this doctrinal idea received little support, partly due to its inextricable connotation of colonialism (Gordon 346). The majority of authors believe that a possible reincarnation of the UNTC for failing States, being fraught with scarcely surmountable legal and political difficulties, does not seem realistic (eg Chesterman 239; Matz 90; Stahn 440).
33 Even though academic ideas to transform the UNTC into a clearing-house for self-determination have received some attention both within the UN (eg proposals to use the TS for resolving self-determination claims in Nagorny-Karabakh) and doctrine, they have brought about no concrete results. De lege ferenda proposals to create a trusteeship for Palestine or to place under the TS Iraq, post Taliban Afghanistan, or Chechnya have equally remained purely theoretical constructs without practical significance.
2. Common Heritage of Mankind and Environment Protection
[S]hould hold in trust for humanity humanity’s common heritage and its common concerns: the environment; the protection of extraterritorial zones and of the resources of the sea and of the seabed; the climate; and the rights of future generations (UNGA ‘Provisional Verbatim Record of the Eighty-Second Meeting’ [17 September 1991] UN Doc A/45/PV.82, 21).
F. Relevance to Present and Future Cases of International Administration of Territories
35 The end of the Cold War (1947–91) witnessed cases of international administration of territories under the UN aegis, such as in Kosovo, East Timor and Cambodia. Thus, the question was raised about the potential role of the TS in these situations. It seems obvious that the TS could not and cannot be used as a legal yardstick for the establishment of modern UN administrations, even if some of these might have closely resembled trusteeship. Nevertheless, though in none of these cases was the TS formally invoked, it is submitted that a number of recent administrations were international trusteeships in everything but name. For the only terminology that seems to properly illustrate the situation with the UN Interim Administration Mission in Kosovo (‘UNMIK’) or the UN Transitional Administration in East Timor (‘UNTAET’) and simultaneously provide conceptual guidance is that of trusteeship. Therefore, the notion of trusteeship has been implicitly resurrected in the context where the UNSC assumed responsibility under Chapter VII UN Charter for the territorial administration.
36 A number of notions like ‘new trusteeship’, ‘neo-trusteeship’, ‘virtual trusteeship’ (Chesterman 222), ‘Security Council-mandated trusteeship’ (Bothe and Marauhn 217), ‘trusteeship-like or trusteeship-type situations’ were introduced to address the issue. Considering the fiduciary and interim character of recent UN administrations, some areas, primarily Kosovo and East Timor, are regarded by doctrine as de facto ‘trust territories’, even if not in the strict meaning of the TS (eg Bothe and Marauhn 219; Jacobs 18). These engagements may well be qualified as ‘trusteeship administrations’ in the legal sense of the term (eg Stahn 411). Even though Art. 78 UN Charter stricto sensu prohibits the application of the TS to ‘territories that have become members of the UN’, the extensive dynamic interpretation of the UN Charter, based on its travaux preparatoires, seems appropriate and corresponds to State practice. This interpretation might allow placement of sovereign States or parts of them under trusteeship even without UN Charter amendments (eg Mohamed 833–34; but see contra Gordon 312).
37 Although the TS does not seem to be directly applicable to modern international administrations, formal inapplicability of Chapters XII and XIII UN Charter does not exclude practical utility of these provisions as a potential normative framework. Each administering authority shall bear similar accountability according to the TS fundamental principles. The experience of the TS can be relevant to any present or future international mechanisms established to supervise activities with trusteeship characteristics and the very concept of international trusteeship will undoubtedly remain a key component of international public policy. Irrespective of its historic connotation the concept of trusteeship seems to be a device of continuing value and should give guidance to future international administrations. Besides, there is growing doctrinal support for the proposition that the basic principles of the TS may be considered as minimum standards for the exercise of UN-lead territorial administrations. Moreover, many authors have aptly advocated the analogous application of the principles enshrined in Chapter XII UN Charter to present-day or future instances of international territorial administration (eg Bothe 155; Stahn 422, 454; Wolfrum 674, 694).
G. Evaluation and Prospects
38 Today, the unique experience of the TS is primarily of historical importance, since it has lost its original raison d’Être. Irrespective of critics, the TS may be characterized as a success. The system has offered a distinctive model of internationalization, representing one of the most sophisticated occurrences of international territorial administration and good governance. The TS has incontestably inspired and accelerated decolonization, being itself simultaneously influenced by this historic process. The speed at which all 11 trusteeships were terminated speaks not against, but rather for the TS’s effectiveness. Though doubts have been voiced whether the ultimate objective of the TS had been reached not just formally (culminating in self-governance or independence), but also in terms of substance (having in mind solid nation-building, strengthening of democratic and economic institutions), it would be speculative to argue that a more prolonged trusteeship period would have possibly been more helpful. The roots of many problems inherited by the post-colonial States lie much deeper and it is uncertain whether a long-lasting TS could have potentially been a panacea in this regard.
39 Although the TS has been inactive since 1994, the system as such remains de iure in force and may potentially be revitalized, even if such a scenario seems improbable. Despite the 2005 UNGA recommendation that the UNTC be abolished, Chapter XII UN Charter was left intact. This may be interpreted as potentially allowing a recovery of the TS (eg under Art. 77 (1) (c) UN Charter), whereas the administrative and supervisory functions of the system would no longer be vested with the UNTC, but with the UNGA or the UNSC.
40 More importantly, there are grounds to speak about the emergence of a separate body of principles which may be defined as ‘international trusteeship law’. Furthermore, there are reasons to assume that the most fundamental of these rules might have attained the character of customary international law (eg fiduciary duty of the administering authority). In addition, it has been contended that the underlying principles of the TS rank as obligations erga omnes and ‘have the status of principles of ius cogens, because they involve the application of fundamental norms of human rights’ (Phosphate Lands in Nauru [Nauru v Australia] [Memorial of the Republic of Nauru] 103).
41 The main principles of ‘international trusteeship law’ flow from a number of sources, primarily Art. 22 (1) Covenant of the League of Nations, Art. 76 UN Charter, pertinently characterized as the ‘Magna Carta’ of authority-in-trust (Stahn 456), as well as other Chapter XII and XIII provisions, trusteeship agreements and the respective UNGA and UNSC resolutions. These basic legal standards, most of which have been upheld by the ICJ and seem to have achieved customary character, envisage, inter alia, the following obligations of an administering authority. First, the authority must guarantee ‘the well-being and development’ of the population of the territory forming a ‘sacred trust of civilization’ and act solely to the benefits and ‘in the interest of the inhabitants … and of humanity in general’ (South-West Africa Case 132; see also Phosphate Case at 256; Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) at 165; UNSC Res 1483  [22 May 2003] SCOR [1 August 2002–31 July 2003] 139, para.4). Secondly, the authority must promote advancement of the population and its progressive development aimed at self-governance or independence according to its freely expressed will (eg Legal Consequences Opinion at 31; Western Sahara (Advisory Opinion)  ICJ Rep 12, 32). Thirdly, the authority must permit the international community’s supervision by providing regular reports, consenting to on-site missions or conferring the right of individual communications (for example, with respect to the reporting system for the Iraq administration, see UNSC Res 1511  [16 October 2003] SCOR [1 August 2003–31 July 2004] 51, para. 25). Fourthly, the authority must bear responsibility for mandate violations and other unlawful acts committed by the administering authority (eg Northern Cameroons Case at 26, 35; Phosphate Case at 244).
42 It may be argued that due to the customary, or perhaps even ius cogens, character of the fundamental principles of ‘international trusteeship law’, no present or future international territorial administration, established either under Chapter VII UN Charter or upon any other legal foundation, may dare to ignore them without risking international responsibility.
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