IO Files2

Department of State Position Paper

restricted
SD/A/AC.49/1

Committee of the General Assembly on South West Africa

the problem

The General Assembly, by its resolution of December 13, 1950 (Annex A),3 established a Committee to confer with the Union of South Africa concerning the procedural measures necessary for implementing the advisory opinion of the International Court of Justice. The Committee also was authorized, as an interim measure, to examine, in accordance with the procedure of the former mandates system of the League of Nations, reports, petitions, and any other materials relating to the territory of South West Africa that may be transmitted to the Secretary-General of the United Nations and to submit a report on its actions to the next regular session of the General Assembly. The problem is to determine the position to be taken by the United States Representative on this Committee.

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recommendations

1. Organizational Questions

(a) The United States should favor a reasonable delay in the initiation of actual negotiations in order that the Union Government may find it easier to change from the inflexible views expressed by certain officials during the August election campaign in South West Africa and thus make possible a calmer atmosphere in which negotiations may be undertaken.

(b) The Committee should meet at Lake Success.

(c) The United States should support the representative of Thailand as chairman. The United States should not accept the chairmanship of this Committee.

(d) In drawing up its agenda, the Committee should first seek to perform its major function; namely, conferring with the Union on procedures for implementing the Court’s opinion. After such negotiations have been initiated, the Committee should turn to its interim function, the examination of any reports and petitions which might have been received regarding the territory.

2. Work of the Committee

(a) The United States Representative should propose that after its election of officers the Committee inform the Union of South Africa of the action taken and perhaps invite the Union Government to designate a representative to confer with the Committee at a later date.

(b) If a proposal is made to examine petitions or reports, the United States Representative should suggest that discussion of the substantive business of the Committee should be postponed for a reasonable period to give the Union Government Representatives an opportunity to confer with the Committee. The United States Representative might suggest that a necessary step should be a request to the Secretariat to prepare a study of the procedures of the Mandates Commission for Committee examination (a digest of the Mandates Commission procedure is attached as Annex B).4

discussion

In 1949 the General Assembly requested the International Court of Justice to furnish an advisory opinion regarding the international status of the territory and the international obligations of the Union arising therefrom. On June 11, 1950 the Court delivered its opinion advising:

“that South-West Africa is a territory under the international Mandate assumed by the Union of South Africa on December 17th, 1920;

“that the Union of South Africa continues to have the international obligations stated in Article 22 of the Covenant of the League [Page 675]of Nations and in the Mandate for South-West Africa as well as the obligation to transmit petitions from the inhabitants of that Territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and petitions are to be submitted, and the reference to the Permanent Court of International Justice to be replaced by a reference to the International Court of Justice, in accordance with Article 7 of the Mandate and Article 37 of the Statute of the Court;

“that the provisions of Chapter XII of the Charter are applicable to the Territory of South-West Africa in the sense that they provide a means by which the Territory may be brought under the Trusteeship System;

“and that the provisions of Chapter XII of the Charter do not impose on the Union of South Africa a legal obligation to place the Territory under the Trusteeship System;

“that the Union of South Africa acting alone has not the competence to modify the international status of the territory of South-West Africa, and that the competence to determine and modify the international status of the Territory rests with the Union of South Africa acting with the consent of the United Nations;”.

The Court also stated in the body of the opinion that:

“… The degree of supervision to be exercised by the General Assembly should not therefore exceed that which is applied under the Mandates System, and should conform as far as possible to the procedure followed in this respect by the Council of the League of Nations. These observations are particularly applicable to annual reports and petitions.”

At the fifth session, the General Assembly accepted the Court’s opinion and established a committee of five, consisting of the representatives of Denmark, Syria, Thailand, Uruguay, and the United States, to confer with the Union of South Africa concerning procedural measures necessary for implementing the Court’s opinion. This committee was also authorized to examine, in accordance with the procedures of the former Mandates System of the League of Nations, reports and petitions relating to the territory that may be transmitted to the Secretary-General.

comment on recommendations

1. Organizational Questions

(a) It would appear desirable to postpone negotiations with the Union Government until at least March or April in order to give time to the Union officials to reflect on, and perhaps adjust as far as possible, to the views of the Court and the Assembly, and to allow public opinion in the Union to cool off with respect to the territory of South West Africa. It is reported that the press in the Union has recently contained some editorial comment to the effect that the action of the General Assembly is not unacceptable to the Union. This might be interpreted as indicating an attempt by the Union officials to prepare the public for some retreat from the Union’s previous position [Page 676]that it had no obligations to the United Nations with respect to the territory and toward an acknowledgement in some measure to the United Nations.

(b) There appears to be no reason why the Committee should meet elsewhere than at the United Nations Headquarters.

(c) The difficulty of achieving results acceptable to both the Union and the General Assembly are so great that it seems highly desirable for the United States to avoid the chairmanship. The United States will be in a better position as an ordinary Member of the Committee to exert maximum leverage during the negotiations and to strive to avoid an impasse between the Committee and the Union.

(d) It is possible that petitions may be received early in 1951. A petition from the Reverend Michael Scott,5 representative of the Herero tribes, has been discussed by a group of non-governmental organization representatives in New York. The Committee’s examination of this or other petitions before conferring with the Union as to the procedures for such examination might be deeply resented by the Union and might jeopardize the negotiations which are the major function of the Committee.

2. Work of the Committee

(a) Manifestly, the Committee will not be able to begin negotiations with the Union of South Africa until the latter designates a representative to confer with the Committee concerning the procedural measures necessary for implementing the advisory opinion of the International Court of Justice. The next step, therefore, after the election of officers, might logically be for the Committee to notify the Union of South Africa that it has convened and is organized to carry out the General Assembly resolution, and to invite the Union of South Africa to designate a representative to confer with the Committee at a later date. The Committee should then recess. If a proposal is made by any of the members to take up substantive questions, the United States Representative should suggest that substantive matters should be postponed until the Union Government Representative has had an opportunity to confer with the Committee.

(b) If a proposal is made to examine petitions, the United States Representative should suggest that the Committee first request the Secretariat to prepare a study of the procedures of the Mandates Commission so that the Committee may utilize this material in conforming its procedures to the opinion of the Court.

No notification that any petitions are actually pending has been received from the United Nations Secretariat. Unless, therefore, a proposal is made that the Committee consider the “petition” made on [Page 677]behalf of the Herero tribes by the Reverend Michael Scott to the Fourth General Assembly, it would not appear that the question of petitions procedure would arise at this meeting.

  1. Short title for the master files of the Reference and Documents Section, Bureau of International Organization Affairs, Department of State.
  2. For the text of Resolution 449 (V), Part A, see United Nations, Official Records of the United Nations, Fifth Session, pp. 55 and 56.
  3. Annex B not printed.
  4. The Reverend Mr. Michael Scott was an Anglican clergyman who appeared regularly at sessions of the General Assembly on behalf of the Herero people of South West Africa.