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

IO Files: US/A/M (Chr)/172

Minutes of the Thirty-seventh Meeting of the United States Delegation to the General Assembly, New York, November 10, 1950, 9:15 a. m.

New York, November 10, 1950, 9:15 a.m.

secret

[Here follows list of persons present (47). The sole agenda item for the meeting was the problem of the treatment of Indians in the Union of South Africa, with the Department’s position paper, Doc. SD/A/C.1/331, as the basis for discussion. Mr. Ward P. Allen of the Delegation’s Advisory Staff first gave a thorough review of the history of the question and the issues involved. He then presented the United States position as set forth in the position paper, emphasizing that the United States preferred not to take any initiative on this matter. This did not exclude taking a position in the Third Committee which would deflect the development of extreme positions. The Delegation was instructed “to initiate or to support a proposal which would reaffirm the previous resolution calling upon the parties to enter into discussions, and to support or initiate a proposal for some sort of machinery to help them … We were not disposed to support a resolution condemning either India or South Africa.…”]

Senator Lodge¹ said that he did not see eye to eye with what had been said so far on this matter. The issue here was one of enormous emotional power; it was that issue which symbolized our Achilles’ heel before the world, the civil rights issue. All over the United States there were violations of our basic civil rights policies. To say that the Indians did not take a technical view of this situation certainly was putting it mildly. He was surprised at the innocuous Indian resolution, and he thought that the United States should vote for it. He did not see himself, as the delegate responsible for this item, discouraging Mrs. Pandit from submitting the resolution. To him this item provided a great opportunity for the United States to build strength to overcome some of the grave disadvantages under which our country labored because of the civil rights question. In any case, the United Nations could do nothing concrete in this case but simply adopt an expression of pious sentiment. He saw no reason why the Assembly should not go ahead and express this sentiment and why we should not support it in this regard.

Mr. Cohen wanted to be sure that the Delegation did not lose the enthusiasm of Senator Lodge on this issue. He thought it was important. What could be done in this case was another thing. He told the Senator that he would be walking on hot coals. On the one hand, we did not want the Indians to feel we were unsympathetic; on the other, we could not let the domestic jurisdiction issue get out of hand. He hoped we would not try to determine our policy as a result of the temporary shifts of opinion in the General Assembly. We should determine our over-all policy on human rights and act on each human rights case accordingly. On the one hand, we urge in connection with the Human Rights Covenant a procedure which would enable human rights problems to be brought up in the United Nations. Other states, however, were unwilling to see such a provision in the Covenant. He wanted to see us maintain a measure of consistency, at least greater than that of most of the western countries who were vigorous on human rights in Bulgaria, Roumania and Hungary, and yet found a lack of competence in the Assembly in the case of South Africa. He believed we should allow recommendations to be made in this case. We could do what we claimed we were trying to do under the Covenant on this very issue.

Mr. Dulles said that Senator Lodge had remarked he did not wish to be in an equivocal position on this issue. Unfortunately we already were. We could not be so righteous about this case. After all, one had only to observe the position which the Senate had taken on the Genocide Convention. He did not believe that we would actually gain great credit in the eyes of the rest of the world by being extremely indignant and righteous about United Nations action in this case when we did not do anything to improve our own situation. Senator Lodge asked what conditions in this country compared with those in South Africa. Mr. Dulles conceded that nothing comparable existed; yet our position was such that the United States was obviously unwilling to make applicable to the United States the Human Rights Covenant. If Senator Lodge thought he would get out of an equivocal position by thinking that South Africa was following a more restrictive civil rights policy than we were, he was mistaken. Senator Lodge said he did not intend to raise hell on this matter, but simply to say what he felt was right. After all, there was a place for ideals in this world.

Mrs. Sampson was glad to know that there were so many friends on her side in this case. She would like to see the United States not sit back, but to sit up straight and be idealistic in this matter. She thought the eyes of the world were upon us ‘because of the conditions we were ashamed of. But after all, we were improving. A straightforward position which faced this situation for what it was would be evidence that we were improving.

Mr. Hickerson said that whoever handled this matter would find himself inevitably in an equivocal position. It would be all very well to say we should take a bold stand on this, but we did have a beam or two in our own eyes. He knew that the laws in his native Texas, for example, were such as not to let us off this hook. People would ask, “Why don’t we get our own house in order?” He shared Senator Lodge’s views, but he could also tell him that the Foreign Relations Committee had not yet reported out a simple convention calling genocide an international crime. This case of the Indians in South Africa was a hardy perennial. He agreed the South Africans were very wrong, but in other respects they were pretty good people. For example, they had sent a fighter squadron to Korea. He did not think they ought to be criticized. Senator Lodge said he had not stated that we should be righteous about this. He had simply said that if we were called upon to express an opinion, we should say that we thought segregation was wrong, no matter where it occurred, here or in South Africa. Mr. Hickerson commented that the Union Government would make the argument of competence on the basis of Article 2(7) of the Charter. He was afraid that might cause us considerable embarrassment.

Mr. Tate said he would not presume to speak on tactics; he did think we should probably play this item in a low key. However, under Article 55, every nation had an obligation to promote human rights. We had undertaken this obligation, as had South Africa. It seemed to him that we should not put ourselves in the position of saying that South Africa was acting in conformity with the Charter. The whole policy of the Union Government obviously ran directly against the Charter.²

Senator Cooper thought that there should be a statement of principle, and that some action should be sought. He hoped we could try to develop some steps to achieve the substance of our position, which was to bring the parties together. As he saw it, there was more interest in condemning South Africa than in getting them to make a report. This was the case, at least as regards South West Africa. If we could not get anything done, we should then make it quite clear that we were interested in getting better treatment for the Indians.

Mr. Allen said that our objective in this case was to try to get some progress and to bring the two parties together through the United Nations. In terms of that objective, any resolution which was violently objected to by either side was not likely to accomplish anything. A condemnatory resolution would not persuade the parties to move forward. Mrs. Roosevelt thought that what we wanted to do here was not to say that the South African position was correct, but to keep both governments working together in order to find a way in which they would sit down—either with a conciliator or alone—and get something rolling toward bettering conditions. It was our objective to make that possible rather than to let either side say harsh things about the other. From her experience in the Human Rights Commission, she could tell Senator Lodge that he would find himself in the position of having to answer questions along the lines that we would not even live up to the Human Rights Covenant, because of the federal-state clause, and he would be criticized for our civil rights laws. She simply answered these questions by stating that we were trying to improve ourselves; we knew that there were things that were not right, but under the Federal Constitution they were things which the Federal Government could not undertake to improve directly because they were rights reserved to the states. The Senator would have to be prepared to deal with such arguments. We could not say that just because we were doing better we could claim something more than South Africa. We would not be in a pleasant position. She thought, however, that we could meet criticism by being honest about our efforts and by saying that, because we knew certain things were wrong, we still did not think they should continue or did not agree that they were right. We were trying to promote a movement forward in the world and at home in human rights.

Senator Lodge was not sure that he agreed with all that Mrs. Roosevelt said. There should be no confusion about one thing. He agreed it, was desirable to bring the parties together. He would be glad to try to do that. However, this had to come from within so there would be no “baloney” about that. He certainly agreed with Mrs. Roosevelt that the United States must not, under any conditions, be put in the position of favoring such treatment of colored people. Where he disagreed, was in any defense of conditions which were wrong. This business of the federal-state clause, the reservation the Senate had passed regarding the OAS charter, for example, which had been aimed at education—he disgreed with entirely. That kind of a reservation was retrograde. He would not say he favored reservations. If the Department wished him to request Mrs. Pandit to withdraw her resolution, someone else would have to handle the item because he simply would not do it.

Mr. Hickerson explained that all that the Senator would be asked to do, if Mrs. Pandit should approach him, was to say that we did not think this resolution was the best way to go about dealing with the situation. A condemnatory resolution would not help since what was wanted was to bring the parties together. Senator Lodge said he would vote in favor of a resolution condemning segregation. Perhaps it would be possible to prevent such a resolution coming up, but in the event it did, he would like to see the American delegate who would not vote in favor of it.

Mr. Hickerson observed that South Africa took a serious view of the domestic jurisdiction issue in this case. Whether it was right or wrong, he did not know. In 1946 the Union had wanted this question referred to the Court, but that had been voted down.

Mr. Cohen thought that, so far as the domestic jurisdiction issue was concerned, there was no question that the General Assembly could not issue a mandatory order on human rights, and while there was a difference of opinion on just what it could do, he would like to call the Delegation’s attention to Lauterpacht’s last edition of his book on international law³ in which he took the position that in view of the human rights provisions in the Charter, there was nothing which prevented the Assembly from discussing and making recommendations on such matters, Mr. Cohen indicated he was always very nervous when the domestic jurisdiction issue came up because there was confusion as to what the Assembly could do. Some took the position that even a recommendation was forbidden by Article 2(7).⁴ We had refrained from taking that position, and he hoped we would continue to do so, and, if possible, make our position even clearer and stronger. Obviously the General Assembly could not issue a binding order, but it could discuss human rights problems and make recommendations. Members had agreed to that in the Charter. This provision should not be whittled down.⁵

Senator Lodge said that he agreed with the objective of bringing the parties together. The paramount thing in the item was its symbolism and the gesture which we could make in connection with it. The United States had to be against segregation; we should say South Africa was wrong in this matter just as we are, and we could admit we were wrong. Under these circumstances, he said that if the Department would rather let someone else handle the item, it was agreeable to him. He simply wanted to make clear the spirit in which he would approach the matter. Mr. Hickerson said that he thought the matter was in good hands.

It was agreed that the Delegation should continue its discussion of this matter at a later meeting.

1. Senator Henry Cabot Lodge of the United States Delegation was the Delegation’s representative in the Ad Hoc Political Committee on this item.

2. The view expressed here by the Deputy Legal Adviser of the Department of State appears to be consistent with an Opinion set forth by the Legal Adviser (Gross) on November 4, 1947, in a letter to the Attorney General of the United States, in which the following was stated regarding Articles 55 and 56 of the Charter of the United Nations:

   “The Department of State considers that there can be no doubt that the Charter, constituting, as it does, a treaty to which the United States is a party, is the supreme law of the land. It does not, however, consider that the broadly worded provisions of the Charter with regard to human rights contained in the Articles referred to control contractual relationships. These Articles impose obligations broadly upon the United Nations and the states which are members thereof. They do not purport to impose legal obligations or confer legal rights upon individuals in those states.… The articles do appear to place member states under an obligation to cooperate with the United Nations in the carrying out of its function, which is stated here and elsewhere in the Charter as being the promotion of universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.… Since your inquiry relates to the question of public policy, in addition to that of legal obligation, it may be said that the various Charter references to human rights, including those cited in your letter, do indicate the general public policy of the United States.…”

   (Bound file of opinions of the Legal Adviser for the year 1947, the Law Library, Office of the Legal Adviser, Department of State)

3. H. Lauterpacht, International Law and Human Rights (1950).
4. Article 2(7) reads: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matter to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” For a lengthy and authoritative exposition of questions of application and interpretation of Article 2(7) in the first decade of the United Nations, see United Nations, Repertory of Practice of United Nations Organs, vol. i, pp. 55–159 (New York, 1955).
5. For a cautious statement of United States attitudes on Article 2(7), with useful citations to Dumbarton Oaks and San Francisco documentation, see Ernest A. Gross, “Impact of the United Nations Upon Domestic Jurisdiction,” Department of State Bulletin, February 29, 1948, pp. 259 ff. Mr. Gross was Legal Adviser of the Department at the time.