44. Memorandum From the Executive Secretary of the Department of State (Eliot) to the President’s Assistant for National Security Affairs (Kissinger)1


  • International Court of Justice Proceedings on Namibia

The Secretary has authorized the Legal Adviser to make a statement on behalf of the United States in the oral proceedings in the Namibia Case, which will begin on February 8.2 Several other States, Finland, India, the Netherlands, Nigeria, Pakistan, Republic of Viet-Nam and South Africa have informed the Court that they intend to participate. In addition, the United Nations and the Organization of African Unity have appointed representatives to make statements in the Case. No date is yet fixed for the U.S. statement, although the Court has decided to proceed in English alphabetical order of states participating.

We intend to deal in the United States statement with five issues which were developed by the written pleadings.

Jurisdiction. South Africa argues that the request for the advisory opinion is not properly before the Court because two Permanent Members of the Security Council abstained on the resolution requesting the opinion.3 The consistent practice of the Security Council has been to regard as adopted resolutions which receive the required number of affirmative votes despite the voluntary abstention of one or more of the Permanent Members of the Council. We will argue that the abstentions of the United Kingdom and the U.S.S.R. do not affect the validity of the relevant resolution.

Discretion. Under its Statute the Court is not required to give an advisory opinion even though it has jurisdiction to do so. We shall argue that it should give an opinion in this case since failure to do so would be inconsistent with its prior jurisprudence relating to the exercise of discretion in advisory cases.

General Assembly Resolution 2145. This is the 1966 resolution which terminated South Africa’s rights under the Mandate. The United States [Page 123] voted for that resolution. Several states challenged its validity in their written statements. We shall argue that the resolution was valid.

Security Council Resolutions and Their Effects. General Assembly Resolution 2145 was followed by a series of Security Council resolutions. It has been argued that some of those resolutions were adopted under Chapter VII of the Charter and thus bind states. We will deny that the Security Council acted under Chapter VII. We shall also discuss the effects of those resolutions. In that regard we shall argue against a submission by another participant which, if accepted, would affect private rights, including the right to pass title to goods in or from Namibia.

De Novo Examination of the Facts. The South African written statement argues that the General Assembly did not properly apply its mind to the facts relating to the administration of Namibia. The statement contains considerable additional information on current conditions there and offers to supply still further information. We would oppose de novo examination of the facts.

We plan to draw heavily in our argumentation on the written statement submitted earlier by the United States to the Court.

When we have an agreed draft of our oral statement, we will send a copy to you.

Theodore L. Eliot, Jr.
  1. Source: National Archives, RG 59, Central Files 1970–73, POL 19 SW AFR. Confidential. Drafted by Dalton and cleared in L, AF, and IO.
  2. For a transcript of the oral statement presented by Stevenson on March 9, see Department of State Bulletin, April 26, 1971, pp. 542–549. See also Yearbook of the United Nations, 1971, pp. 581–586.
  3. Security Council Resolution 284, July 29, 1970.