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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.

45.

Memorandum From the Assistant Secretary of State for
African Affairs (Newsom) and the Department of State Legal
Adviser (Stevenson) to Secretary of State Rogers

Washington, February 17, 1971.

SUBJECT

Efforts to Induce American Companies Operating in South Africa to Improve
Conditions of Employment of Non-Whites—Information Memorandum

American firms doing business in South Africa are coming under increasing criticism from U.S. domestic and black African opinion, inter alia on the grounds that their presence in the Republic gives moral support to the unpalatable racial policies of the South African Government. We believe that by bettering the conditions of employment of non-whites in their South African plants, American businesses can quietly demonstrate to the contrary that in one important way they are helping to improve social conditions in the Republic in line with the non-discriminatory objectives they support at home.

1 Source: National Archives, RG 59, Central Files 1970–73, LAB 10 S AFR. Limited Official Use. Drafted by Keiter on February 13 and cleared in AF/S, L/AF, and AF.

Over the past year we have developed a number of suggestions that American firms might consider in examining ways to improve their employment, wage and benefit arrangements for non-white South African employees and more generally to support improvements in the situation of all non-white South Africans. We have considered personnel policies followed in the US, the practices of South African, American and other firms in South Africa, and the pertinent South African legislation. We have also discussed the problem with a few selected private individuals, such as William Beatty, a Vice President of Chase Manhattan, George Lindsay of the Lawyers' Committee for Civil Rights under Law, Tom Wyman of Polaroid, and Professor John Dugard of the University of the Witwatersrand.

We have found that as a general rule American companies are not in the forefront as regards personnel practices, some falling below common standards, and that there is considerable room for improvements which are legally acceptable and, at least in many cases, economically supportable. Our soundings have indicated that the home offices of many of the more than 300 US firms involved in South Africa are ignorant of the realities of the situation there, and we have good evidence that they would welcome additional information and ideas.

It is clear that ordinarily any changes in the employment and other personnel practices of American firms in South Africa must be initiated by their headquarters in the U.S. With rare exceptions managers of American affiliates in South Africa, whether of American, South African or other nationality, are not prepared to act on such matters without explicit guidance from their home offices.

Although a moral issue of worldwide concern is involved, we believe we can best approach American companies on this problem quietly, and from the viewpoint of the firm's self-interest, as seen within South Africa, in the rest of Africa, and in the United States. In light of the increasing importance to U.S. business interests of significant labor, civil rights, and consumer groups in the U.S., enlightened self-interest necessarily includes what management, consumers, and stockholders of American business accept as consistent with the principle of racial equality. At the present time, any action we or the companies take should avoid the impression of a concerted attack on the racial system as such, for that could stimulate strong South African reaction and damage U.S. business interests.

While some of the business representatives with whom we have talked would like the State Department to take the lead in this matter, we consider it essential for American companies to be out in front. Some, particularly Polaroid, are already there. Others, such as Morgan Guaranty, which has quietly stopped lending to any South African entities (Chase International never has) and will consider loans only to American firms for trade purposes, are limiting their ties to South Africa. Still others, as exemplified by inquiries we have had from Dupont and AMAX, and by the interest a number of firms have shown in the Polaroid program, are worried about the South African situation and looking for an appropriate course of action.

Attached is a paper outlining some of the constructive personnel policies which can be adopted within the present South African legal framework.2

We propose to continue our soundings and to work quietly with a few key individuals in businesses, banks and the legal profession, raising the kinds of questions discussed in the attached paper and seeking to encourage further inquiry and trial efforts in the area.

We do not at this time plan or propose any formal US Government action in this area. Should this seem desirable after our soundings, we will seek your formal approval.

2 The attachment, “Apartheid and U.S. Firms in South Africa," provides an overview of the problems faced by American companies and their subsidiaries operating in South Africa, and offers suggestions for improving the lives and working conditions of non-whites without drawing undue attention from the South African Government.

46.

Intelligence Note Prepared in the Bureau of Intelligence and
Research

RAFN-15

Washington, March 9, 1971.

SOUTH-WEST AFRICA:
IMPLICATIONS OF SOUTH AFRICA'S PLEBISCITE OFFER

South Africa offered on January 27, 1971, to join the International Court of Justice (ICJ) in conducting a plebiscite to let the inhabitants of South-West Africa (renamed "Namibia" by the United Nations) register a choice between South African and UN rule. The offer is an interesting example of political calculation, tailored to appeal to what South Africa sees as responsible world opinion, and intended to undermine the UN's position on South-West. We discuss below some of the offer's implications and the possible outcome of a plebiscite if one were held.

South Africa Versus UN. The issue of South-West Africa has been a primary and perennial concern of the UN since the establishment of the world body. In 1966 the General Assembly decided, by Resolution 2145, that South Africa had forfeited its right to administer South-West under its 1920 League of Nations mandate, and that the territory was thenceforth a direct responsibility of the UN as the League's successor. South Africa claimed that Resolution 2145 was illegal, and has pertinaciously asserted that its stewardship of the territory is both legal and in the best interests of the inhabitants. The matter is at an impasse, leaving South Africa with the advantage because it exerts de facto control over South-West, and because effective UN measures to oust it are not in prospect.

Terms of the Offer. South Africa made its plebiscite offer in connection with current deliberations at The Hague on a UN request for an ICJ advisory opinion on the "legal consequences for states” of South Africa's continued presence in South-West. The South Africans framed their offer in these terms: the basis of Resolution 2145 was that South Africa had failed to fulfill its obligations under the mandate. However (according to South Africa) the allegations on which the resolution relied are not proved, and the UN still “uncritically" accepts that South African practices and policies in the territory oppress the inhabitants and deny them the right of self-determination. To refute such allegations, South Africa will seek to put them to “the most fundamental test of all: that of the express will of the inhabitants ... by way of a plebiscite

1

Source: National Archives, RG 59, Central Files 1970–73, POL 19 SW AFR. Confidential; No Foreign Dissem; Controlled Dissem. Drafted by Hugh Campbell, cleared by Lloyd Rives, and released by David Mark (INR/Africa).

... to determine whether it is the wish of the inhabitants that the territory should continue to be administered by the South African government or should henceforth be administered by the United Nations". South Africa and the ICJ would jointly supervise the plebiscite.

Undermining Resolution 2145. The question presented to the court for an advisory opinion was carefully framed to assume the validity of Resolution 2145; most participants agree, nevertheless, that the court may examine this question. South Africa is trying to use this non-binding proceeding to call into question the competence of the General Assembly to pass such a resolution, the validity of the resolution itself, and, further, to reopen and argue the allegations of fact on which Resolution 2145 was “uncritically" based.

Minimum Risk for South Africa. While South Africa is implying that a plebiscite would be an exercise in self-determination, it has not committed itself to act in accordance with the results of the vote. South Africa is also limiting the scope of the question by omitting reference to a vote on the alternative of independence for the territory. Finally, South Africa is in a position to reject a plebiscite if it finds proposals for the modalities of campaigning and voting unacceptable.

Alternative for the ICJ. In considering the plebiscite proposal, which is one aspect of South Africa's comprehensive approach to the case, it is questionable that the ICJ could directly participate in setting up or supervising a plebiscite. Additionally, the court would probably want to assure itself that it would not be usurping functions of the UN's political organs. It is much more likely that the ICJ will refer the offer—if it deals with it at all—directly to a political organ of the UN. If the court thus finesses the plebiscite, South Africa may decline further discussion of it on grounds that it is sub judice, that it was made only to the ICJ, and that in any case the political organs of the UN have already demonstrated their unwillingness to accept the facts of South African administration and are not interested in self-determination for the people of the territory. Thus, the South Africans expect in any event to make political gains at small risk.

A Hope of Self-Determination. A plebiscite arrangement which would give the hope of genuine self-determination would require South Africa to commit itself to act on the vote, to allow ample time for campaigning, to allow freedom for all the inhabitants (including exiles) to campaign, and to immunize those engaged in electioneering from harassment before or after the vote. The UN for its part might commit itself (e.g., by resolution), if it won the plebiscite, to a timetable for independence and to substantial assistance programs. The political obstacles to formulating such an agreement are formidable, but failure to deal with the plebiscite matter would leave the propaganda field to South Africa. Already, Dawid de Villiers, leader of South Africa's legal

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