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

353/11–950

Memorandum of Conversation, by the Deputy United States Representative on the Trusteeship Council (Gerig)

confidential

[New York,] November 9, 1950.

Participants:	Dr. Dönges, [Union] Minister of the Interior	Delegation of the Union or South Africa
	Ambassador Jooste
	Mr. Botha, Legal Counselor
	Senator John Sherman Cooper1	United States Delegation
	Assistant Secretary John D. Hickerson
	Mr. Benjamin Gerig

[Here follows brief summary of the conversation.]

In opening the discussion, Dr. Dönges reviewed again the familiar history of South West Africa since World War I, referring particularly to the part played by President Wilson² and General Smuts³ in setting up the Mandate System. Both these men believed, he said, that South West Africa, after being governed for a period “as an integral part” of the Union, would in due course become so indissolubly connected with the Union that in effect a “marriage” of the territory with the Union would be the natural outcome. This, he said, was on the way to being realized when Hitler⁴ and the Nazi element in South West began to make trouble in the 30’s, looking toward keeping the territory separate in the hope that it would one day be recovered by Germany.

The Union, nevertheless, continued faithfully to carry out the League mandate and after the demise of the League continued to administer the territory “in the spirit of the Mandate”. During the Second World War, he said, they might have annexed the territory but did not do so. General Smuts and the Union Delegation at San Francisco⁵ had announced, however, that they considered South West in a special status and while they would administer it as before, they had no intention of submitting a trusteeship agreement. They always held that a trusteeship was not obligatory and were greatly surprised that six Members of the Court, in the recent opinion, could have found otherwise.

They had wished to cooperate with the United Nations and for this purpose had, in 1946, made an annual report “for the information of the United Nations”, but found that the report was turned over to the Trusteeship Council for examination as if the territory were under trusteeship. The Trusteeship Council had then formulated over one hundred supplementary written questions, most of which were extremely tendentious, regarding segregation and other aspects of Union policy. This was definitely an interference in the internal affairs of the Union, which was intolerable. Both governmental and public opinion in the Union thereupon decided that no further reports could or should be made.

Then came the request by the General Assembly in 1949 for an advisory opinion of the Court. The Union was quite surprised with some of the findings of the Court but nevertheless, he said, is desirous of going as far as possible in accepting the opinion of the Court. They wished to cooperate with the United Nations and do not wish to be put in the position of attacking the Court. Dr. Dönges referred to the fact that a squadron from the Union was being sent to Korea and that his Government felt they could play a more important role in the United Nations than had been possible so far. The question, therefore, was whether a “formula” could be found which would make possible such cooperation.

Mr. Hickerson said that we understood the point of view of the Union Government very well. We had been over a good deal of this ground in previous discussions, both with Ambassador Jooste and with Mr. Louw.⁶ The United States wished nothing more than to be helpful in overcoming the difficulties which have prevented the Union Government so far from exercising fully the important role which it could play in the United Nations. In the kind of dangerous and perilous world in which we are living, it is of the utmost importance that countries like South Africa should cooperate fully in the tremendous tasks which lie ahead, and the sending of the squadron to Korea was just one evidence of the role which the Union could play. We felt, he said, that the annual recrimination in the Assembly regarding South West Africa was most unfortunate and we hoped that a satisfactory arrangement could be made this year which would terminate this unnecessary friction. Quite frankly, we hoped that the Union would see its way clear to accept substantially the opinion of the Court and act upon its findings. The United States Delegation, in the last several years, had done everything within its power in the General Assembly to assist in a solution of this problem and had several times prevented extremely condemnatory resolutions from being passed. The United States itself was reporting not only on its trust territory but on a number of territories, like Puerto Rico, which were practically self-governing. We, like the British and French, have often been misunderstood in the General Assembly and have been subjected to very severe and unfair criticism but we have accepted that as one of the inevitable facts of life and have not allowed it to “get under our skin”. We have felt that if the Union could render reports it would be subjected to less criticism than if it failed to do so. We very much hoped, therefore, that the Union Government would be able to go along with the opinion of the Court.

Dr. Dönges asserted that the position of the Union was in some respects sui generis. Though similar problems existed in some other countries, including the United States, there was no other country in which a small group of two million whites was surrounded by eight-or-more million nonwhites. The problem of sheer existence, therefore, was one which made opinion in the Union more sensitive perhaps than elsewhere to the type of criticism and interference which seemed to emanate from the United Nations. He thought that failure to comply with the Court’s decision re reporting would be sharply criticized for a year or two but the criticism would then die out, particularly when it was understood that any complaints for non-performance of obligations stipulated in a new agreement would be subject to the sanctions of the ICJ.

Dr. Dönges said that even this was making a big concession. His present instructions only permitted him to make a new agreement with the remaining Principal Allied and Associated Powers (United States, United Kingdom and France) or perhaps with the states which were members of the League of Nations in 1946 when it was discontinued. In offering to make such an agreement with the United Nations, he was going beyond his instructions but was prepared to recommend this action to his government. He wasn’t sure they would accept it but he hoped they would.

When Mr. Hickerson expressed some doubt as to whether such an agreement, which fell short of the opinion of the Court, would be accepted by the Fourth Committee or the General Assembly, Dr. Dönges said that that was where the United States could play an important and decisive role. Mr. Hickerson, however, demurred by saying that we have frequently been in a minority, especially on colonial questions, and that it is doubtful if the Assembly would agree to a course of action which fell short of the Court’s opinion. A number of delegations, indeed, wished to go beyond the Court’s opinion by urging trusteeship again.

Dr. Dönges then developed the line which was taken by the two Judges, McNair and Read,⁷ in connection with the Court’s opinion, namely, that supervision was of two kinds, judicial and administrative, and that judicial supervision under his proposal could be exercised by the Court, while administrative supervision, as provided in the mandate, was now impossible of execution because the United Nations had no organs identical with the Permanent Mandates Commission and the League Council for the examination of annual reports. He said that on the assumption held by the majority of the Court that the United Nations could handle reports like the League did, it would be necessary to set up a Committee of Experts for this one report—which was like using a sledge hammer to kill a flea—and also to have the Assembly operate on the unanimity principle which was the way the League Council operated when examining the report of the Permanent Mandates Commission. He thought, therefore, that in practice as well as in principle, the making of reports and having them examined by the United Nations was wholly impracticable.

Referring to the special position of the Union, Senator Cooper asked whether the making of reports and the subsequent discussion which would follow in the United Nations could not be used in such a way that a fuller understanding of the special position of the Union would come about and be more widely appreciated. Ambassador Jooste said that there were a number of delegations in the United Nations which seemed to have no hesitation whatever in Stirring up trouble and since the South West territory was administered “as an integral part” of the Union under the mandate, such delegations would not hesitate to discuss any and every aspect of the legislative and administrative activities of the Union, which was intolerable.

Dr. Dönges, on the question of domestic jurisdiction and Article 2(7) of the Charter, referred at some length to Mr. Dulles’⁸ statement made at San Francisco which resulted, he said, in taking the domestic jurisdiction clause out of Chapter VIII and giving it wider application by putting it in the Charter where it now is. He felt, therefore, that the United States Delegation should do more in keeping the Assembly from interfering in matters which are so generally within the domestic jurisdiction of governments, particularly in this case, as it affects the way in which South West Africa is being administered. He added that actually the administration of South West Africa is excellent and that the Union Government was carrying out a great many benevolent and enlightened programs in the territory, including the pacification of various tribes including the Hereros, who heretofore had been accustomed to making life miserable for the other tribes. In spite of these efforts, people like Michael Scott were actually stirring them up and using such phrases as “Look to the United Nations—the day of your deliverance is near”.

Mr. Gerig said that we and some of the other administering powers have recently been changing our tactics in the United Nations. We, too, felt that our administration of the territories under our charge was benevolent and enlightened. Instead of being on the defensive and accepting a lot of unjust criticism we, together with the British and French, have been pursuing the tactic of speaking freely about the many good things which we are doing, thus putting our critics on the defensive. This, he thought, could also be done by the Union Government and would have the effect of counterbalancing much of the criticism which was, in any event, inevitable. He also expressed the opinion that if the Union Government was willing to have the proposed agreement discussed under the broad provisions of Article 10, as Ambassador Jooste suggested, there was likely to be just as much occasion for criticism as if an annual report were submitted and referred to Committee Four. Dr. Dönges said that there was not as much criticism under the Permanent Mandates Commission, but Mr. Gerig rather doubted this and said that the Mandates Commission operated in private and the minutes did not record many of the critical questions which were posed to the various administering authorities. Mr. Hickerson added that the work of the United Nations takes place almost entirely in public and therefore, unlike the technical committees of the League, the criticism immediately gets to the public. This was perhaps inevitable and we had to make the best of it. But as long as our consciences were clear we should not be so sensitive to criticism. Dr. Dönges agreed in principle but said that public opinion in South Africa simply could not accept such public criticism at the present time and no government could withstand it.

In conclusion, Dr. Dönges gave the impression that the Union Delegation would make its proposal for a limited agreement with the United Nations, excluding the reporting function. Dr. Dönges hoped the United States would support this line but Senator Cooper and Mr. Hickerson gave no indication that we would do so. Dr. Dönges handed Mr. Hickerson a rough draft of what they have in mind to propose.⁹

1. Senator Cooper was a Representative on the United States Delegation to the General Assembly and sat as the United States Delegate on the Fourth Committee.
2. Woodrow Wilson, President of the United States, 1913–1921.
3. Field Marshal Jan Christiaan Smuts one of the founders of the South African union, sometime Prime Minister of the Union, prominent world statesman.
4. Adolf Hitler, Chancellor of the German Reich, 1933–1945.
5. For documentation on the Conference on International Organization which met at San Francisco, California, April 25–June 26, 1945, see Foreign Relations, 1945, vol. i, pp. 1 ff.
6. Erik H. Louw, Union Minister of Economics and head of the South African Delegation to the General Assembly, 1948 and 1949.
7. These judges of the International Court of Justice had rendered minority opinions in the South West Africa case.
8. John Foster Dulles, sometime member of United States Delegations to the General Assembly, 1946–1950. He was a member of the United States Delegation to the San Francisco Conference.
9. Not printed. This informal and personal initiiative by Dr. Dönges was overtaken by events in the Fourth Committee itself.