Foreign Relations of the United States, 1950, The United Nations; The Western Hemisphere, Volume II

IO Files: SD/A/C.4/76¹

Position Paper Prepared in the Department of State for the United States Delegation to the Fifth Regular Session of the General Assembly of the United Nations ²

confidential

[ Washington ,] September 4, 1950.

Question of South West Africa Advisory Opinion of International Court of Justice

the problem

The problem is to determine the position of the United States in regard to the advisory opinion of the International Court of Justice delivered July 11, 1950, which states inter alia that the Union has an obligation to transmit petitions and annual reports on South West Africa to the United Nations in accordance with the provisions of the mandate for the territory, and that the degree of supervision to be exercised by the General Assembly should not exceed that which applied under the Mandates System and should conform as closely as possible to the procedure followed in this respect by the Council of the League of Nations.

recommendations

1. The Delegation should be guided by the general consideration that, in the view of the United States, the Government of the Union of South Africa should accept the opinion of the Court as a basis for its future actions with respect to South West Africa.

2. In accordance with this general consideration, the Delegation should adopt the following position:

(a) If the Union of South Africa should announce its willingness to submit reports and petitions in accordance with the International Court of Justice opinion, the United States Delegation should support or initiate a resolution along the lines of Annex A, using Alternative A of paragraph 2 and whichever Alternative of paragraph 3 the Union Government may find more acceptable.

(b) If the Union of South Africa should make no statement as to its intentions or should state that it is giving consideration to the opinion, the United States Delegation should support any resolution which in non-condemnatory language invites, requests, or urges the Union to submit reports and petitions in compliance with the International Court of Justice opinion. In general the resolution annexed may be utilized as a basis for discussion with other delegations, using Alternative B of paragraph 2, and whichever Alternative of paragraph 3 is more acceptable to the Union. If the Union should not indicate any preference, the Delegation may utilize whichever version of paragraph 3 appears more acceptable to the other delegations.

(c) If the Union of South Africa states at the General Assembly or in any official communications to the United Nations that it will not submit reports on South West Africa, the United States Delegation should express the very great regret of the United States that the opinion of the Court is not accepted by the Union Government as a basis for its future actions with respect to South West Africa. The Delegation should support a resolution urging the Union Government to reconsider this decision with a view to submitting reports and petitions in compliance with the Court opinion and, in order to carry out the obligations of the United Nations, providing appropriate machinery as envisaged in (a) and (b) above. The Delegation should seek instructions from the Department with respect to other proposals which may be made.

comment

On August 7 Mr. Hickerson discussed the question of South West Africa with the South African Ambassador (Jooste) in Washington. The Union Government was urged to express its willingness to act in accordance with the Court opinion and to consider various alternative types of United Nations machinery for examining reports and petitions from South West Africa.

On the basis of information thus far available, the position of the United Kingdom on South West Africa this year appears to be close to that of the United States. The United Kingdom has indicated agreement with the approach made by the United States to South Africa in Washington urging the Union Government to submit reports. The Department was informed on August 14 that the United Kingdom would make a similar approach. Subsequently information was received that the United Kingdom had expressed to the South African Government the hope that no statements would be made in the course of the election campaign which would commit South Africa irrevocably with regard to the opinion of the Court. A Foreign Office spokesman has indicated that if South Africa is unwilling to act in accordance with the Court opinion, which the Foreign Office considers a good one, the United Kingdom may warn South Africa that United Kingdom support for their position cannot be expected.

At the present juncture it is of utmost importance in view of the Far Eastern situation to win the wholehearted cooperation of Members recently emerged from colonial status in unified action to combat aggression. Furthermore, the United States has always felt that the Union of South Africa had followed an unwise policy in not voluntarily placing South West Africa under the trusteeship system. Also the United States has persistently stressed the importance of member states respecting actions of the United Nations. This is especially true with respect to decisions or opinions rendered by the International Court of Justice. Hence, the United States should take a clear position in the debate that the Union should carry out the opinion rendered by the Court. During the four years that the South West Africa question has been under consideration by the United Nations, the United States has exercised its influence in the direction of moderation. However, if the Union Government is unwilling even to consider the opinion of the Court as a basis for its future policies regarding South West Africa, the United States would not be in a position to make further efforts on behalf of South Africa, although the United States would not wish to see at this stage a resolution of condemnation.

With regard to the position of the Union Government in relation to the opinion of the Court on South West Africa, it is important to note that under Article 7 of the Mandate, any state which was a Member of the League of Nations could seek an actual judgment on the subject in a contentious proceeding between states. Such a judgment would probably follow the same lines as the advisory opinion of the Court. Under Article 94 of the Charter, South Africa would have a legal obligation to comply with such a judgment, and the Security Council would have power to enforce the judgment.

As a part of the background surrounding this problem the Delegation should keep in mind the tenuous relationship presently existing between the Union of South Africa on the one hand and the United Nations. The Union Delegation has constantly been subjected to criticism since the inception of the United Nations on the case of South West Africa and on the case of Indians in South Africa. The effect on public opinion in the Union has been unfortunate and there is in existence a growing sentiment in the Union that participation in the United Nations entails more disadvantages than advantages. A byproduct of this situation has been that South Africa has been somewhat isolated in the United Nations. Although it was elected to the UN Commission for Eritrea last year, it has never been elected to a major Council. The South Africans are extremely sensitive to this situation. Moreover, the effect of their present position on their relations with other Members of the United Nations also presents difficulties for the Union. Certain of their leaders such as Ambassador Jooste, who will be Chairman of the Delegation this fall, have been doing all they can to counter this public sentiment and recently succeeded in getting the Union to offer certain combat assistance for the UN action against aggression in Korea. For the Union of South Africa this was a very far-reaching step. The problem involves attempting to strike a balance by which we do not deviate from principles we believe to be right but under which at the same time we attempt to avoid the development of a situation which could result in the withdrawal of the Union from the United Nations. The Delegation should keep in mind, however, the very strong views held by the great majority of Members of the United Nations on South West Africa.

Since the Union has given no official indication of the position it intends to take at the General Assembly the recommendations of this paper are posited on the alternative attitudes which the Union Government might take. On the basis of present indications it appears unlikely that the Union will announce its willingness to submit reports and petitions. It would appear at present that the promise of recommendation 2 seems most unlikely to occur.

If the Union indicates its intention to submit reports, the possible types of United Nations machinery for examination of the reports include:

(a) Trusteeship Council

The Trusteeship Council, with its balanced membership of six administering and six non-administering states, might meet in special session, or, in any event, under special rules of procedure conforming as closely as possible to those of the Mandates Commission.

(b) New Committee of the General Assembly

A new committee of the General Assembly especially established for this purpose might also conform its procedure to that of the Mandates Commission.

(c) General Assembly Fourth Committee

The examination of reports by the Fourth Committee might appear less desirable in view of the large majority of non-colonial countries on that committee. Also, this procedure might appear to go beyond the advice given by the Court as to the degree of supervision to be exercised by the General Assembly.

(d) Committee of Experts

The establishment of a Committee of Experts composed of persons chosen for their individual competence in the field of colonial administration by the General Assembly or the Trusteeship Council, and reporting to one of those bodies, might have much to commend it. It might be preferable from the point of view of the Union for such a committee to be chosen by, and responsible to, the Trusteeship Council in view of the balanced membership of that body.

It is believed that the balanced membership of the Trusteeship Council probably offers the best means of assuring an objective examination of the report. However, in view of the Union’s vigorous objections to the examination given its 1946 report by the Trusteeship Council and the Court’s opinion that the supervision to be exercised by the General Assembly should conform as far as possible to the procedures followed by the League of Nations, perhaps the establishment of a Committee of Experts, generally comparable to the Permanent Mandates Commission, for the purpose of reviewing the reports on South West Africa might be most acceptable to the Union Government. Accordingly, if the Union appears willing to submit report, and should indicate a preference for any of these alternatives, it is believed that the United States could support the Union’s preference.

Annex A

Draft Resolution

The General Assembly,

Having requested, by its resolution 338(IV) of 6 December 1949, the International Court of Justice to render an advisory opinion on the following questions:

“What is the international status of the Territory of South West Africa and what are the international obligations of the Union of South Africa arising therefrom, in particular:

• “(a) Does the Union of South Africa continue to have international obligations under the Mandate for South-West Africa and, if so, what are those obligations?
• “(b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the Territory of South-West Africa?
• “(c) Has the Union of South Africa the competent to modify the international status of the Territory of South-West Africa, or, in the event of a negative reply, where does competence rest to determine and modify the international status of the Territory?”

Having received the advisory opinion of the Court rendered on 11 July 1950,

1. Notes that the Court advises as follows:

On the General Question:

that South-West Africa is a territory under the international Mandate assumed by the Union of South Africa on December 17th, 1920;

On Question (a):

that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League of Nations and in the Mandate for South-West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions are to be submitted, and the reference to the Permanent Court of International Justice, to be replaced by a reference to the International Court of Justice, in accordance with Article 7 of the Mandate and Article 37 of the Statute of the Court;

On Question (b):

that the provisions of Chapter XII of the Charter are applicable to the Territory of South-West Africa in the sense that they provide a means by which the Territory may be brought under the Trusteeship System;

and that the provisions of Chapter XII of the Charter do not impose on the Union of South Africa a legal obligation to place the Territory under the Trusteeship System;

On Question (c):

that the Union of South Africa acting alone has not the competence to modify the international status of the Territory of South-West Africa, and that the competence to determine and modify the international status of the Territory rests with the Union of South Africa acting with the consent of the United Nations;”

2. (Alternative A). Expresses appreciation of the willingness indicated by the Union of South Africa to accept the opinion of the International Court of Justice with respect to South West Africa as a basis for its future actions with respect to the territory.

2. (Alternative B). Urges the Union of South Africa to accept the opinion of the International Court of Justice with respect to South West Africa as the basis for its future actions with respect to the territory.

3. (Alternative A). Requests the Trusteeship Council, meeting under special rules of procedure conforming as closely as possible to the procedures established by the Mandates Commission of the League of Nations, to receive and consider reports and petitions with respect to the Territory of South West Africa and to make appropriate reports to the General Assembly relative to this Territory.

3. (Alternative B). Requests the Trusteeship Council to establish a special committee of persons acting in their individual capacities, meeting under special rules of procedure conforming as closely as possible to the procedures established by the Mandates Commission of the League of Nations, to receive and consider reports and petitions with respect to the Territory of South West Africa and to make appropriate reports to the Trusteeship Council relative to this Territory.

1. Short title for the Master Files of the Reference and Documents Section of the Bureau of International Organization Affairs, Department of State.
2. For information regarding the composition and organization of the United States Delegation, see p. 24. The General Assembly was to convene in New York on September 19.