320/7–1351

Memorandum by Mr. J. R. Fowler of the Office of Dependent Area Affairs to the Director of That Office (Gerig)

confidential

Subject: Possible diplomatic approach to Union of South Africa urging acceptance of Ad Hoc Committee draft as basis for negotiation.

Should a decision be made to approach the Union of South Africa directly, either in Washington or Pretoria or both, some of the following points may be useful in urging the Union Government to consider favorably the draft agreement presented to the Union by the Committee:

1. Appropriate reference might be made to the positive attitude of the Union Government in agreeing to meet with the Committee and in taking the initiative in proposing that a new agreement be negotiated clarifying the status of South West Africa.

2. The attitude might be taken that the Committee draft represents not so much a counter-proposal as a development of the original [Page 683]proposal of the Union for a new agreement, in effect, a spelling-out of the points which might be a part of such an agreement as that proposed by the Union.

3. Reference might be made to the common ground which exists between the Committee and the Union, that this augurs well for the attainment of a satisfactory solution and that, in view of the progress made to date, it would be unfortunate for all concerned if such a solution were not achieved. Existing common ground between the parties at present appears to include the following points: (1) a new agreement concerning the Territory is possible, (2) such an agreement would “clarify” (thus evading the subsidiary issue of “continue” vs. “re-establish”) the status of the Territory, (3) the status of the Territory would be based upon the essential concepts of the Mandate system, (i.e., recognition of the principles of “non-annexation” and the “sacred trust”), (4) the agreement would re-state the obligations of Articles 2–5 of the Mandate, (5) the non-fortification provision of the Mandate would be replaced by the obligation of the Union to ensure that the Territory plays its part in the maintenance of international peace and security and the right of the Union to establish military installations in the area.

4. It might be pointed out that the United States, for its part, would be prepared to have the agreement entered into between the remaining Principal Allied and Associated Powers and the Union of South Africa with approval by the UN, if this should be desired by the Union Government and be agreeable to the UK and France.

5. Emphasis should be placed upon the tactical and political advantages which would flow from a satisfactory agreement:

a.
The problem of South West Africa is within the competence of the General Assembly and, failing some positive action on this question, it will be a recurrent subject for discussion in the Fourth Committee where the emotional atmosphere of the past may be expected to continue, if not increase, and where failure to achieve a settlement will crystallize present attitudes and result in yearly discussions of South West Africa in a manner sharply critical of the Union Government.
b.
Since the problem is and will continue to be before the Assembly in any event, it will be advantageous to remove it from the status of a “special” problem and place it in a more normal context. The position of the Union Government in the UN would be improved and the volume and nature of the criticism re South West Africa would be reduced and changed by adoption of an agreement along the present lines. Criticism of members administering dependencies cannot be eliminated, but experience has shown that it can be moderated. Experience has shown that there is a body of moderate opinion in the GA which can be appealed to on such issues as this. The friends of the Union would be in a far better position to assist in obtaining fair consideration of the problems of administration which, the Union faces if the status of the Territory and the position of the Union were satisfactorily established.

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6. While it is not possible to predict the reception which an agreement along the present lines might have in the GA, the possibility of obtaining the necessary two-thirds majority to confirm will be greatly increased if the Committee and the Union can agree on the general terms of a new agreement. There appears to be no hope of obtaining GA approval for any proposal which the Committee cannot accept and recommend.

7. With respect to the substance of the issues involved, the following points might usefully be made:

a.
While it is obvious that the views of the Union and members of the Committee on the ICJ opinion do not coincide, these divergencies in legal opinion do not constitute an insuperable difficulty; such legal issues as whether the mandate has or has not terminated, whether the UN has or has not succeeded—in law—to the functions of the LN, etc., could be left to one side if agreement in principle were reached that the new agreement would, in so far as is possible, re-establish the procedures which obtained under the Mandate.
b.
The establishment of machinery as proposed in the Committee draft would result in consideration of South West Africa by bodies whose composition and procedures would be most favorable to the Union. Such features as the unanimity rule, closed meetings, the expert character of the primary consideration given to the administration of the Territory, would serve to protect the interests of the Union.