Foreign Relations of the United States, 1969–1976, Volume XXVIII, Southern Africa

29. Paper Prepared by the National Security Council Interdepartmental Group for Africa¹

AF/NSC-IG70-20

Washington, April 2, 1970.

Response to NSSM 89: South West Africa

I. Problem

To obtain Presidential guidance for our representative on the Security Council subcommittee currently seeking ways to implement United Nations responsibility for South West Africa. The subcommittee (of the whole) is to report back to the Security Council by April 30, paving the way for Council consideration of the South West African issue in May or June. In addition to our immediate guidance requirement, we need to determine U.S. policy towards the Territory over the longer term, involving, as it does, our bilateral relations with South Africa, our relations with black Africa, and our role in the UN. In this broader context we need to determine whether there is anything that can or should be done to bring about accommodation between South Africa and the United Nations.

II. Background

South West Africa is an international Territory illegally occupied by South Africa. South Africa became the administering power by virtue of a League of Nations mandate of 1920. Following the demise of the League, International Court of Justice (ICJ) advisory opinions established that the mandate continued in effect, that South Africa could not alter the status of the Territory without UN consent, that the UN had supervisory authority, and that South Africa was obligated to “promote to the utmost the material and moral well-being and social progress of the inhabitants”. When, in 1966, the International Court of Justice refused to pass on the merits of a contentious proceeding brought by two former League of Nations members to contest South Africa’s administration, the United Nations decided (GA RES 2145 (XXI), October 27, 1966), that (1) because of South Africa’s violations of its obligations and disavowal of the Mandate, the Mandate conferred on it was terminated, (2) that South Africa had no other right to administer the Territory which (3) thenceforth came under the direct responsibility of the United Nations.

Although South Africa acknowledges that South West Africa has an international character and periodically makes available reports on developments there, it denies that the United Nations is responsible for the Territory and for over two decades has failed to submit to the United Nations the reports and petitions required under the Mandate. Under South African administration, the developed areas, comprising half the Territory, have been reserved to the white minority and apartheid and repressive measures on the South African model have been introduced. South Africa regards the Territory as an important security buffer and economic asset. Short of the use of force, therefore, we do not see any immediate possibility of inducing South Africa to withdraw.

Our direct economic and strategic interests in South West Africa are limited. We have approximately $60 million in direct investment, accounted for largely by the Tsumeb mining complex. Several oil and mining companies are also engaged in exploratory work in the Territory. Apart from current direct investment controls, our policy is neither to encourage nor discourage U.S. investment; we carry on some trade with the Territory.²

The Military Airlift Command (MAC) and U.S. Air Force overfly the Caprivi Strip but otherwise the U.S. Government makes little use of South West Africa.

The U.S. supported Resolution 2145 and we have made clear in our bilateral relations with South Africa and at the UN that we regard South Africa as illegal occupant of the Territory. The U.S. Ambassador has refrained from visiting South West Africa to avoid any implication of recognition of South Africa’s illegal occupation. We have not permitted U.S. Defense Attachés to travel in the Territory to avoid any U.S. association with the stringent internal security and military measures being pursued there by South Africa. We have protested South African violations of the rights of the inhabitants, especially the introduction of the Terrorism Act, whose application to the Territory we regard as both obnoxious and illegal.

We have not in recent years contributed to the UN training program for SWA refugees.

We participated in the work of the 1967 Ad Hoc Committee on South West Africa which sought practical means to administer the Territory while the inhabitants were being prepared to exercise their right of self-determination.³ We urged that alternative arrangements for the administration of the Territory be thoroughly studied. The Africans and others called for various approaches to a UN takeover of South West Africa.

When the Committee failed to reach agreement, the General Assembly established a UN Council for South West Africa to take over immediate control of the Territory. None of the big powers supported establishment of the council—whose terms of reference, in our view, were impractical—or accepted membership in it. As a result, the Council is virtually powerless. Nevertheless, the majority of UN members would contend that it is the UN body designated to administer South West Africa should South Africa withdraw or be forced out.

The U.S. has supported Security Council resolutions calling on South Africa to withdraw its administration and has made similar representations in bilateral discussions with the South African Government. At the same time, we opposed the setting of arbitrary time limits for withdrawal and have opposed calls for extreme measures such as the use of force or economic sanctions against South Africa. We have stated in the Security Council that the present situation in South West Africa is not one which can sensibly and humanely be remedied by mandatory sanctions.

The 1965 Security Council study concluded that the South African economy, though not immune, would not be “readily susceptible” to the effects of sanctions. Even if the South African economy were less self-sufficient, sanctions are unlikely to be effective without universal support, especially of the major powers. The UK, France, the Federal Republic of Germany, Italy, Japan and a number of other trading nations are actively seeking to expand their shares of the South African market. None of these countries would be likely to support a call for sanctions, and we could expect that evasions would occur. Enforcing sanctions with a blockade, moreover, would involve immense cost and effort, the brunt of which would have to be borne by the U.S.⁴

On January 30, 1970, the U.S. supported a Security Council resolution establishing a subcommittee to prepare recommendations by April 30 on the implementation of UN responsibility for the Territory. The immediate problem posed for the U.S., in view of the pressure being put on us by African leaders to take effective action against South Africa, is how to encourage the subcommittee to take a constructive approach and to avoid inappropriate recommendations.

Although we will be credited with steps we have taken in the past, we must expect to be under continuing pressure to do more. We must anticipate that we will be confronted with proposals for sanctions which, if presented in mandatory form, could require the exercise of a veto. We have already abstained on, or opposed, such proposals in the General Assembly. Thus our suggestion of alternatives to sanctions in the Security Council subcommittee could have some positive impact on African opinion, but it is probable that it would only postpone the day when the Western powers are faced with a Security Council call for more extreme measures and possibly the need to cast a veto.

III. U.S. Interests and Objectives

The U.S. is committed by its national experience, public policy, and international undertakings to support the principles of human rights and self-determination. That commitment was reaffirmed by the President in his recent Report to the Congress “US Foreign Policy for the 1970’s” as follows:

“Clearly there is no question of the United States condoning, or acquiescing in, the racial policies of the white-ruled regimes. For moral as well as historical reasons, the United States stands firmly for the principles of racial equality and self-determination.”

The way in which we deal with the South West African issue will be taken as a measure of our commitment to these principles. In particular, it will affect our credibility on a range of questions pertaining to southern Africa and will help to determine the degree to which the Africans listen to and are influenced by our views.

The U.S. has an important interest in placing itself in the best position to dissuade or at least delay African insistence on inappropriate coercive measures against South Africa and, if a U.S. veto of such measures should prove unavoidable, to be able to put the best face on it. Pursuit of this interest involves readiness to put forward and support reasonable alternatives, while avoiding a commitment—or even an implication of readiness—to use force.

Any choice of options will affect U.S. economic ties in Africa outside the white-controlled areas ($1.7 billion in trade; nearly $2 billion in direct investment) as well as our ties to South Africa ($750 million in trade, $700 million in investment). Other factors involved include strategic interests in both the black and the white-ruled parts of the continent, and NASA space-tracking facilities in both areas.

IV. Range of Options

The South West African problem is included in the study prepared in response to NSSM 39.⁵ For reasons of feasibility, options suggested here are in the middle range of those set forth on SWA in NSSM 39. This, however, does not exclude the possibility, indeed the probability, that we will be faced with demands for actions on the more extreme part of the spectrum. The international status of the Territory makes it possible for us to take action on South West Africa without necessarily foreclosing options on Rhodesia, the Portuguese Territories, or South Africa contained in the NSSM 39 response.

Underlying the options are three basic assumptions:

• —that the U.S. regards the present South African administration of the Territory as illegal;
• —that the U.S. does not support the use of force or measures that would not be effective without the use of force to terminate South Africa’s control over South West Africa;
• —that South Africa will remain in effective control of the Territory for the foreseeable future.

Within these limits, the options set forth possible U.S. actions in ascending order of U.S. initiative: they begin with continuation of present restrictions on U.S. activities in South West Africa and work their way up through supporting measures to implement the UN administrative authority.

V. The Options

The options are:

1. Continue present restrictions on U.S. activities in SWA but avoid any major new action involving Territory.

2. Take selective actions in addition to present restrictions to dissociate ourselves from South Africa’s illegal administration of Territory.

3. Join in international efforts to assert UN responsibility for Territory.

Option 1—Continue Present Restrictions on U.S. Activities in SWA But Avoid Any Major New Action Involving Territory

Posture: Although continuing to support principle of international responsibility for South West Africa, we would try to play down issue in the UN and avoid any major new action. We would counsel moderation and encourage the UN and South Africa to seek accommodation. To put best face on our inaction, we would continue present restrictions on U.S. activities in Territory.

Operational Examples:

Neither encourage nor discourage U.S. investment in South West Africa.

Continue trade with Territory.

Continue restrictions on U.S. Defense Attaché visits, Ambassadorial visits, overflights and port calls in South West Africa. Restrict EXIM Bank facilities.

Support efforts to establish contact between UN Secretary General and South Africa; quietly promote talks within or outside framework of UN, whichever will help to break deadlock.

Encourage Security Council subcommittee to avoid impractical measures and to examine alternative approaches to the problem.

Encourage UK and others to veto mandatory sanctions and be prepared to take such veto action ourselves as last resort.

Pros:

Would tend to serve U.S. trade and investment interests in South West Africa.

Would limit irritant effect of SWA issue in U.S.-South African relations.

Would afford some credibility to our stated position on SWA issue.

Would not encourage expectations we cannot meet.

Cons:

If this course of action is interpreted as evidence of declining U.S. energy on SWA issue, as it is likely to be, it would reflect adversely on our credibility on southern African issues in general and lend itself to communist exploitation.

Would not offer enough to black African states to head off demands for mandatory sanctions and could thus still pose a veto problem.

Would not persuade South Africa to change its South West African policy or to engage in serious negotiations.

Option 2—Take Selective Actions in Addition to Present Restrictions To Dissociate Ourselves From South Africa’s Illegal Administration of Territory

Posture: Recognizing that there can be no immediate solution to the problem, U.S. would take selective unilateral and multilateral action—in addition to present restrictions—in order to dissociate ourselves more fully from South Africa’s administration of SWA and to establish a credible position of upholding UN responsibility for Territory. We would attempt to dissuade the parties from taking actions prejudicial to the interests of the inhabitants or which would make the possibility of future negotiated settlement more remote.

Operational Examples:

Depending upon tactical situation, we would take some or all of the following steps in addition to those in Option 1:

Publicly discourage U.S. investment in South West Africa.

Announce that U.S. nationals who invest in the Territory in the future on the basis of rights acquired through the South African Government since adoption of Resolution 2145 cannot expect U.S. Government assistance in protecting such investments against claims of a future lawful government of South West Africa.

Announce cut-off of Export-Import Bank facilities for trade with Territory.

Through our bilateral relations or the Security Council, as appropriate, encourage other countries to take actions parallel to these increased U.S. restrictions.

Support referral to International Court of Justice for advisory opinion on appropriate legal aspects of South Africa’s administration of SWA.

Continue support of humanitarian efforts on behalf of South West Africans (UN programs, activities of private American church and legal groups).

To the extent that South Africa showed flexibility, be prepared to take proportionate action to reduce aforementioned restrictions on Territory.

Pros:

Would be consistent with U.S. support for human rights and self-determination.

Would demonstrate to UN and South Africa that the U.S. is willing to sacrifice some material interests in support of its avowed policy.

Would tend to preserve our freedom of action by limiting our economic stake and involvement in South West Africa.

Would help defer at least temporarily demands for mandatory sanctions and consequent possibility of U.S. veto.

Might secure support of moderate Africans who do not believe stronger measures are feasible.

Cons:

Would cost us some trade and investment opportunities in the Territory.

Would still be criticized as inadequate, and would not eliminate the likelihood of calls for more drastic measures.

Would not soon bring South Africa to negotiate seriously or make significant concessions on South West Africa.

Option 3—Join In International Efforts To Assert UN Responsibility for Territory

Posture: U.S. would take further positive steps to implement direct UN responsibility for Territory.

Operational Examples:

In addition to steps listed in Options 1 and 2, U.S. would take the following actions:

In the Security Council subcommittee, seek recommendation to the General Assembly on revision of terms of reference of UN Council for South West Africa and/or the establishment of a new continuing body, such as the subcommittee itself, to explore alternative approaches to problem. Be prepared to become a member of such a body if we can be assured of practical terms of reference.

Study and, if feasible, support measures to divert to UN for administrative costs of UN Council for SWA and education expenses of SWA refugees, any foreign corporate taxes generated in Territory in the future.

Consider a Security Council resolution calling upon the UN Secretary General and member states to submit periodic reports on compliance with 1963 Security Council arms embargo on South Africa.

Contribute to a UN training program for South West African refugees.

Pros:

Would be positive affirmation of U.S. commitment to human rights and self-determination in eyes of most of the world.

Would improve U.S. influence and standing in black Africa.

Assistance to refugees would help to meet humanitarian need and prepare them for future responsibilities.

Cons:

Would not meet demands for mandatory sanctions.

Still would not be strong enough to persuade South Africa to accept UN role, much less to relinquish strategic area.

By creating bloc of potential South West African civil servants, refugee training could lead to pressures for government-in-exile.

Would impair U.S. relationships with South African Government, probably reflecting adversely on U.S. material interests in South Africa.

VI. Analysis of New Actions under Options

A. Restrictions on U.S. Investment

(Options 2 and 3)

Publicly discourage U.S. investment in South West Africa.

Present Policy: At present we neither encourage or discourage U.S. investment in South West Africa.

(Options 2 and 3)

Announce cut-off of Export-Import Bank facilities for trade with Territory.

Present Policy: At present we allow short-term (up to 6 months) EXIM credit guarantees for such investment. But we have had only one request for EXIM help in the past 5 years.

(Options 2 and 3)

Announce that investors subsequent to UNGA Resolution 2145 (October 1966) cannot expect U.S. Government assistance against claims of future lawful governments in SWA.

Pros:

• —Will demonstrate U.S. firmness of purpose to South Africa.
• —Will strengthen our moral position in the UN by demonstrating good faith effort to give practical effect to UN resolutions.
• —Discouraging further economic ties now would prevent U.S. from becoming “locked” economically—and politically—in SWA.
• —Retroactive effect can be avoided, so that U.S. investment already in SWA need not be affected.
• —U.S. Government will not in future be embarrassed by claim for protection.

Cons:

• —South Africa is unlikely to change its policy in response to such marginal moves.
• —Proposed measures would not entirely cut off further U.S. investment.
• —Unlikely that these measures will head off pressures for further and stronger measures.
• —To the degree that U.S. investment is hampered, others (especially South Africans, British, and perhaps also the Germans) might step in.

B. U.S. Policy at the UN

(Options 2 and 3)

Support non-mandatory steps by Security Council to have all member States take actions similar to above unilateral steps.

Pros:

• —Will reduce risk of other states taking advantage of our self-abnegation.
• —If other states refuse to go along, may ease African pressure on U.S. and divert pressure onto others.

Cons:

• —Other investing and trading countries unlikely to follow us.
• —Even if other nations follow U.S., measures unlikely to change SAG policies.

(Option 3)

Consider a Security Council resolution calling on member states and the SYG to submit periodic reports to the Council on their application of the 1963 Security Council arms embargo on South Africa.

Present Policy: We have a strict embargo on the sale of military equipment to South Africa, but others (U.K., France, Italy) are less strict and the French, in particular, are quite lax in implementation.

Pros:

• —Gives us a chance to take political initiative.
• —Reaffirming U.S. support for embargo and showing up others’non-compliance would ease African pressure on U.S.
• —Tying arms embargo to situation in international Territory would strengthen authority of embargo.

Cons:

• —Would antagonize the French and, to a lesser degree, the British.
• —Though our compliance has been better than others’, we cannot expect Africans to shift their pressure onto U.K. and France. Africans are already aware of who sells most arms (France) and who trades most (U.K.) with South Africa.
• —Will antagonize South Africans without depriving them of arms.

(Option 3)

In Security Council subcommittee seek recommendation to General Assembly on revision of terms of reference of UN Council for SWA and for establishment of new continuing body and be prepared to become member if terms of reference are practical.

Present Policy: We abstained on UNGA resolution which created 11-member Council, primarily on grounds that its terms of reference were unrealistic and unachievable. (U.S. not a member.)

Pros:

• —Would allow U.S. to take constructive initiative, instead of remaining on defensive.
• —Would strengthen our moral and political position by demonstrating willingness to study ways of effectuating UN responsibility for SWA.
• —Might improve our chances of guiding UN discussion and action on the SWA issue.

Cons:

• —Would open up Council’s composition and terms of reference to new pressures and bargaining. No guarantee of U.S. control or influence over outcome.
• —Afro-Asian sponsors attach importance to Council as it is, and U.S. position might appear a negative one.
• —Entities created by the General Assembly are less amenable to U.S. influence than the Security Council, where we have the option of a veto.

(Option 3)

Actively support inclusion in UN regular budget of funds for education and training of indigenous Namibian refugees.

Present Policy: U.S. already supports humanitarian efforts on behalf of South West Africans (some UN programs; private U.S. church and legal groups), but there is evidence of Congressional opposition to U.S. voluntary contributions for training of southern African leaders.

Pros:

• —Would enhance U.S. standing with African states.
• —Would be affirmation of UN responsibility for South West Africa.
• —Funds involved would not be large.

Cons:

• —Inclusion of such funds in regular UN budget could open door for similar demands in relation to other programs for training southern African refugees.
• —Could put UN (and U.S.) in position of promoting violent action or government in exile. No guarantee that UN-trained groups will restrict themselves to non-violent means.

(Option 3)

Support referral to ICJ for advisory opinion on appropriate legal aspects of South Africa’s administration of SWA.

Pros:

• —Would demonstrate U.S. commitment to human rights and our continued abhorrence of repressive policies of South Africa.
• —Would undergird U.S. view of SWA as legally distinct from South Africa.
• —Favorable advisory opinion would knock out South Africa’s position that 1966 ICJ judgment undercut 1950 ICJ advisory opinion.

Cons:

• —No assurance African states would support another referral to court.
• —ICJ ruling favorable to Africans could not be given practical effect. This will only stimulate pressures in UN by giving Africans additional legal reasons for demanding mandatory sanctions vs. South Africa.
• —U.S. proposal of submission to ICJ is not likely to postpone immediate UN consideration of SWA issues.

The following measures parallel to proposals by the U.S.U.N. delegation would require extensive study as to feasibility and advisability prior to their consideration by the U.S. Government for possible action:

(Option 3)

Support UN action under which members would terminate avoidance-of-double-taxation privilege for their investors in SWA.

Present Policy. U.S. investors in SWA are allowed credits on U.S. tax for taxes paid to South African Government on revenues from investments in SWA, or other means of avoiding double taxation.

(Option 3)

Support measures to divert to UN tax and royalty revenues derived from foreign commercial activities in South West Africa.

Annexes:⁶

A —Chart: Comparison of U.S. Actions under the Options

B —South West Africa: Further Background

C —Memorandum to the Secretary of State from U.S. Delegation to 24th UNGA

D —Memorandum to L/AF from L/UNA, ICJ Advisory Opinions on South West Africa, February 27, 1970

E —Memorandum to AF/S from L/UNA and L/AF, South West Africa, March 12, 1970

F —UNGA Resolution 2145 (XXI) Question of South West Africa

G —National Security Study Memorandum 89, February 12, 1970

1. Source: National Archives, RG 59, Central Files 1970–73, POL 19 SW AFR. Secret. The paper was prepared in response to NSSM 89 (Document 24), and sent to Kissinger under an April 2 covering memorandum from Newsom.
2. We apply our South African arms embargo to South West Africa. [Footnote is in the original.]
3. The reference is to the UN Council for South West Africa, or the UN Council for Namibia, established by General Assembly Resolution 2248, May 19, 1967.
4. 1965 Joint Chiefs’ study of naval blockade in support of sanctions estimated a requirement for 4 carrier task forces. In event blockade would have to be extended to Mozambique and Angola to make it effective, 3 additional carrier task forces would be needed. [Footnote is in the original.]
5. AF/NSC–IG 69–8 Rev. A, December 9, 1969. [Footnote is in the original. Printed as Document 17.NSSM 39 is Document 6.]
6. Annexes A–F are attached but not printed. Annex G is Document 24.