845A.411/10–2452
Memorandum by the United States Deputy Representative on the United Nations Collective Measures Committee (Bancroft) to the Legal Adviser of the Department of State (Fisher)
Subject:
- South African Question in the General Assembly.
In a conversation with the Secretary last week relating to his speech in the general debate, he talked a little about our attitude on the South African question. I am setting down my recollections of what he said in case they might be of help to you. There were present at this conversation Messrs. Jessup and Shulman.1
The Secretary said, in the first place, that he was clear that the General Assembly was competent to deal with the South African question. He said that your memorandum reached the correct result, in his opinion, but it was too much of an advocate’s memorandum, rather like a brief which might be presented to uphold the constitutionality of the AAA.
He said he was going to see Jooste later that morning and that he was going to try to tell him that the question of competence should not be raised as an isolated issue but should be submerged in the full case. He said it should be like a situation in the Supreme Court where counsel files a motion to dismiss an appeal on jurisdictional grounds. In such cases the Supreme Court often denies the motion but tells counsel that in the brief and argument he can address himself to the jurisdictional question as well as to the merits.
The Secretary said that because of domestic implications it was very important that the South African case should be regarded as not creating a broad precedent and that therefore it should be described as if it involved a dog with a green tail and pink eyes and blue legs, so that it could be distinguished from other cases not having the same precise characteristics. The particular aspects characterizing the South African case seem to be that it was a governmental policy to carry out apartheid and that this policy had international implications.
He said that in respect to the action which the General Assembly might take, he hoped that by merging the question of competence in the debate on the merits it might well be possible for states which disagreed on the question of competence to agree on an Assembly resolution or agree to vote against an Assembly resolution. In this way bad [Page 964] resolutions could be beat down without a decision on the competence issue and perhaps a resolution which was not too offensive to the South Africans could be agreed upon.
It is my recollection, although I am not as clear on this as I am of the foregoing, that the Secretary did not express himself on the question of reference to the International Court of Justice except to say that he had some doubt in his own mind whether that was a good idea.
- Marshall D. Shulman, Special Assistant to the Secretary of State.↩