Foreign Relations of the United States, 1952–1954, Africa and South Asia, Volume XI, Part 1

320/10–1552

Memorandum of Conversation, by Elizabeth Brown of the Office of United Nations Political and Security Affairs

secret

[Washington,] October 15, 1952.

Subject:

• Possible Reference to ICJ of the Question of the UNGA’s Competence to Deal with the Question of Race Conflict in South Africa.

Participants:

• Miss Barbara Salt, British Embassy
• Mr. Raynor, BNA
• Mr. Lee, BNA
• Mr. Wainhouse, UNP
• Miss Brown, UNP

At the outset, Miss Salt recalled her previous conversation with Mr. Stein and Mr. Allen,¹ in the course of which she had been asked to ascertain from the Foreign Office whether the UK would be willing to initiate action in the General Assembly for reference to the ICJ of the above question or, alternatively, to arrange for the introduction of such a proposal by some other delegation. Miss Salt stated that the Foreign Office was not in favor of reference of this question to the Court and in fact would oppose such a proposal. The reasons for this position, Miss Salt explained, stemmed from the fact that the views of the Foreign Office were clear and categorical on the question of competence:² (1) this question was clearly covered by Article 2(7); (2) the ICJ would not be likely to give an opinion based on legal reasons but would probably be motivated by political considerations which might result in a woolly decision which would whittle away Article 2(7). She also mentioned the obvious difficulty of achieving a suitably worded reference to the Court.

Miss Salt referred to the Department’s feeling that reference of this matter to the ICJ would probably prevent a South African walkout and would in any event result in a year’s postponement. On this point, the Foreign Office doubted whether South African reaction would in fact be moderated by the Court reference. Mr. Raynor noted that Ambassador Gallman thought that South Africa would abstain on a resolution referring the question to the Court. Miss Salt doubted whether the position and tactics of the Union Government were really settled at this time.

Mr. Raynor said that the Department had never thought that South Africa would like the idea of Court reference, but he suggested that it would be less unattractive than some other types of action. On the basis of past experience, he believed that South Africa would be likely to take a neutral attitude rather than violently oppose Court reference. Miss Salt repeated that the Foreign Office was not sure a Court reference would prevent a strong South African reaction.

Miss Salt stated that the Foreign Office regarded as extremely vital the preservation of the integrity of Article 2(7). For this reason, the Foreign Office felt that even an illegal debate in the Assembly on this question, despite the fact that, in a sense, it would establish a precedent, was a lesser evil than whittling away Article 2(7) by proposing reference to the Court, thereby implying existence of a question as to the meaning of Article 2 (7). Miss Salt added that the Foreign Office views as an extremely serious development using unconstitutional methods in a deliberate attempt to stir up trouble and believes it essential to take an absolutely firm position against such efforts.

Mr. Wainhouse said that we were troubled by the difference in position between the British and ourselves on this question and had thought in these circumstances that reference to the ICJ was one way out. Our own prediction as to what the Court might do was a bit different from that of the Foreign Office because we thought it likely the Court would throw the question back to the Assembly as a political matter which in essence only the General Assembly could decide. Miss Salt commented that this result would likewise make the British most unhappy.

Mr. Raynor said that, on a completely informal, personal basis, he wished to mention an idea that had been discussed within the Department, namely, that the question of the over-all role of the UN in the human rights field might be referred to a committee of eminent persons who would review the matter as a question of general policy. Miss Salt was inclined to think that London would take an equally dim view of this idea since the Foreign Office was reluctant to take any step implying that a shadow of doubt existed on the interpretation of Article 2(7). Mr. Wainhouse said that the idea posed some difficult issues, and UNA had doubts as to its wisdom. The question of the membership of such a special committee was touched upon briefly, the need for a nucleus of members familiar with UN practice and for inclusion of eminent legal authorities being recognized as essential to a balanced approach. In response to Miss Salt’s question whether this idea should be referred to London, Mr. Raynor replied in the negative.

After referring to the conversation which Mr. Vallat recently had with Messrs. Fisher and Tate,³ Miss Salt said that she would leave informally a paper which had been prepared in the Foreign Office on the 2(7) question. She cautioned that it was not a formal opinion of the Legal Adviser. (A copy is attached.)⁴

Mr. Lee mentioned as another possibility a generalized discussion on the question of separate development versus integration in the multi-racial society. An academic debate in the Assembly on the general problem of multi-racial societies might clear the air and frighten people away from direct discussion of specific cases. Mr. Lee said that he had asked Ambassador Gallman whether South Africa would be as opposed to discussion of their situation in this general context. The Ambassador had thought the South Africans would not react as strongly.

Miss Salt noted that the Indian aide-mémoire⁵ had not invoked Article 14⁶ and in this connection pointed out that the British position was that Article 2 (7) takes precedence over Article 14. Thus, if Article 2 (7) means what it says, only Chapter VII is excluded from its application.

There was a brief discussion of the question whether some other state, possibly one of the Scandinavian members, New Zealand, or Canada, might wish to take the initiative in proposing Court reference. However, Mr. Raynor and Mr. Wainhouse stated that the United States would wish to review its position on reference to the ICJ in the light of the UK position before deciding whether to press the matter further.

1. No record of this conversation has been found in Department of State files. Eric P. Stein was attached to the Office of United Nations Political and Security Affairs.
2. On Oct. 13, 1952, the First Secretary of the British Embassy, Ronald Belcher, informed Armistead Lee that, in the opinion of the British Legal Adviser, the prohibition against intervention, contained in Article 2 (7) of the UN Charter, included consideration and recommendations by the General Assembly or other organs of the United Nations which were directed at purely internal affairs. The British Legal Adviser held that, while the United Nations was competent to consider a general question in the human rights field which involved all members or a number of members, it was not competent to consider an issue such as the Indian proposal on apartheid, which was confined to the domestic policies of a single country. (Memorandum of conversation by Lee, Oct. 13, 1952; 320/101352)
3. No record of this conversation could be found in Department of State files. F. A. Vallat was the U.K. representative on the UN Special Committee for the Consideration of the Methods and Procedure of the General Assembly for Dealing with Legal and Drafting Questions; Adrian Fisher was the Legal Adviser of the Department of State; and Jack B. Tate was the Deputy Legal Adviser.
4. Not printed. The document is entitled “Informal UK Legal Opinion on Article 2(7).”
5. Presumably, reference is to the aide-mémoire sent by India and 12 other powers to the UN Secretary-General on Sept. 12. For a summary, see editorial note, p. 927.
6. Article 14 of the UN Charter reads: “Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair, the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.”