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

320/11–352

Memorandum by the Director of the Policy Planning Staff (Nitze) to the Secretary of State¹

secret

[Washington,] November 3, 1952.

Subject:

• South African Item on U.N. Assembly Agenda.²

The South African item on the Assembly Agenda raises three questions:

1. Is the U.N. competent to discuss the item?

2. Is the U.N. competent to consider a resolution of a general nature relating to human or equal rights?

3. Is the U.N. competent to consider a resolution which deals with specific domestic legislation of South Africa as it affects the human or equal rights of citizens of South Africa?

Since Article I of the U.N. Charter states that the peoples of the United Nations have resolved to combine their efforts to accomplish the aim of a reaffirmation of faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women, the answer to the first and second questions is properly in the affirmative. The U.N. can certainly call upon its members to fulfill in good faith the obligations assumed by them under the Charter, in accordance with Article 2, paragraph 2.

It is only with respect to the third question that a difficulty arises.

In the area of domestic action, the Charter in Article 2, paragraph 7, excludes the intervention of the U.N. in matters “which are essentially within the domestic jurisdiction of any state”, except that such exclusion shall not be permitted to prejudice the application of enforcement measures by the U.N. in case of threats to the peace, breaches of the peace, or acts of aggression.

It seems difficult to argue that South Africa’s racial legislation, however unfortunate or explosive it may be, involves threats to or breaches of peace between U.N. members, nor does it amount to an act of aggression by one of them against another. The legal argument would seem to relate to the interpretation of the essentially domestic nature of the jurisdiction exercised by the South African Government.

It is possible to recognize a difference of view as to the legal question of the U.N.’s competence, and still regard the question as one of interpretation that should be decided on the ground of the broad interests of the United States. In the view of S/P, there are three principal U.S. interests that argue for a strict interpretation of the Charter in this instance:

1. As a practical matter, the intervention of the U.N. in such a question as the racial policy of the South African Government will not solve the problem. The U.N. could not enforce its views and an attempt to do so would result in a weakening of the prestige and usefulness of the organization. Whatever the permissible breadth of discussion may be, the U.N. was not established to take action with respect to all problems in the range of human behavior. We are interested in a strong and respected U.N., and it should be part of our policy to dissuade the organization from attempting action beyond its capacity for effectiveness.

2. As a powerful nation and member of the United Nations, the United States is peculiarly vulnerable to the charge that domestic U.S. action affects other countries and that nearly everything it does might be said to fall outside a loose definition of matters that are essentially within its domestic jurisdiction. It would not serve the policy of U.S. support for the U.N. to accept the competence of an international organization to take action to alter our domestic legislation in the field of human and equal rights, and we could hardly dodge the issue, if the U.S. were directly involved, by abstaining from an expression of opinion on the subject of the U.N.’s competence.

3. Such matters as the South African item are always thorny political problems in which a variety of considerations affecting U.S. policy are involved. Each time the competence of the U.N. to take action on such an item arises, we will find ourselves tugged in several directions, and we will evoke considerable enmity if we attempt to balance our interests on each occasion.

If we decide now upon an interpretation of the Charter that limits the U.N.’s competence on these questions, we will have a position on which we can stand in the future, whether later items relate to other members or to the U.S. itself, and we will not find ourselves repeatedly assailed for misjudgments of the balance of our political interests in every individual case.

Conclusion

Neither the provisions of the Charter nor our own interests require acceptance of an interpretation that concedes U.N. competence with respect to a resolution dealing specifically with South African domestic legislation. An abstention in a matter of such obvious consequence will appear foolish on the part of a member that took so large a part in the drafting of the Charter and the establishment of the U.N., and an abstention will merely accentuate our political problems when similar questions arise in the future. We should vote against the competence of the U.N. in order to protect our own national interests and to secure a precedent on which we can continue to stand—a precedent which will permit us to avoid the difficult political dilemmas that are bound to accompany each item of this kind in the future.³

Paul H. Nitze

1. Source text is marked at top “Sec Saw”.
2. This memorandum pertains to the item, race conflict in the Union of South Africa.
3. Other offices and principals of the Department of State shared the Policy Planning Staff’s dissatisfaction with the position being taken by the Department on the competency issue. A memorandum, dated Oct. 9, 1952, from Assistant Secretary Perkins to Secretary Acheson, disputed the Legal Adviser’s opinion (Oct. 3, 1952; see the editorial note, p. 937) on the following grounds: “(1) It proceeds on a theory of the human rights provisions of the Charter which was not contemplated by any of the framers of the Charter and a contrary theory could be sustained with equally respectable arguments. Indeed, Legal Advisers of the UK and French Governments had reached exactly the opposite conclusion. (2) It propounds a doctrine of the scope of the Charter so broad as to contain elements of danger for the UN and for the continued whole-hearted participation in it of our principal allies. To risk break-up of the UN on the domestic jurisdiction issue would, of course, jeopardize the more important collective security functions in which the nations most subjected to attack for their alleged shortcomings in dependent area matters are our strongest and practically our only supporters. (3) In so narrowly interpreting Article 2, paragraph 7, it would estop the U.S. from ever opposing the jurisdiction of the UN in matters involving the U.S., which our Congressional and public opinion would certainly regard as domestic and with which they would not permit the UN to concern itself (i.e., our immigration laws, U.S. treatment of Communists, segregation laws in our eleven southern states, etc).” (Source text is a carbon copy bearing no indication that it was sent to the Secretary; 845A.411/10–952.) Also on Oct. 9, the Deputy Director of the Office of UN Economic and Social Affairs, James F. Green, sent to the Deputy Assistant Secretary for UN Affairs, Durward V. Sandifer, a memorandum, which argued that the Legal Adviser’s opinion and the position paper of Oct. 5 “completely nullify Article 2(7) of the Charter and, in so doing, create serious implications for the future policies of the Department.” Green maintained that the Legal Adviser’s opinion reversed the U.S. interpretation of Article 2(7), given at the time of its adoption, and could, if adopted as U.S. policy, form a precedent which could be directed against matters considered to be within the domestic jurisdiction of the United States. Green did not deny the General Assembly’s competence to dicuss any matter contained in the Charter, but he disputed the General Assembly’s competence to adopt a resolution which “directs recommendations specifically to a particular State, or which creates a committee of inquiry to investigate conditions in a particular State, or which in other ways seeks to bring pressure to bear upon a particular State.” Therefore, Green’s “tentative view” was that the U.S. position should be that the General Assembly was competent to discuss the South African item and to adopt a resolution on racial discrimination in general, but that the General Assembly was not competent to address specific recommendations to the Union of South Africa, unless the General Assembly determined that this matter was not “essentially within the domestic jurisdiction” of the Union. (845A.411/10–952) The Under Secretary of State, David K. E. Bruce, also registered his concern by sending a personal message to Secretary Acheson on Oct. 28 which stated: “Doc [Deputy Under Secretary H. Freeman Matthews] and I are gravely disturbed over what might be foreign and especially domestic repercussions of a vote by US in favor of UN competence in South African matter. If some nation could be induced propose reference question of competence to International Court of Justice that might be a way out. Hope you can talk to some of us in Dept before reaching your final decision.” (Telegram Telac 38; 845A.411/10–2852)