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MANDATE IN TRUST The problem of South West Africa PUBLISHED BY THE AFRICA I960 COMMITTEE 33 RUTLAND GATE S.W.7

Members of the Africa 1960 Committee THE HON. ALASTAIR BUCHAN CHRISTOPHER CHATAWAY, M.P. L. B. GREAVES RICHARD HORNBY, M.P. CHARLES JANSON JAMES LEMKIN IAN LLOYD THE EARL OF MARCH JOHN MARGETSON ROLAND OLIVER MRS. MERVYN RAYNER SIR ROBIN WILLIAMS, Bt. MICHAEL WOOD

INDEX Page INTRODUCTION 5 THE COUNTRY AND THE PEOPLE 7 THE ATTITUDE OF 9 THE ADMINISTRATION: A DE FACTO ANNEXATION I I DOMESTIC POLITICS OF SOUTH WEST AFRICA 14 The European Community 14 The non-white Community 15 THE INTERNATIONAL STATUS OF SOUTH WEST AFRICA 20 The Mandate of the League of Nations 20 The Move for Incorporation 20 International status under the United Nations 21 South Africa's Argument 25 THE COMMONWEALTH RESPONSIBILITY 27 CONCLUSIONS 29

INTRODUCTION In 1918, South Africa was given a Mandate over South West Africa under the Mandates System of the League of Nations. This system was succeeded by the International Trusteeship System of the United Nations Organisation. South Africa is the only one of the former Mandatory Powers which refused to submit a Trusteeship Agreement for its Mandated Territory, and thus to bring it under the general supervision of the General Assembly of the United Nations. For fourteen years, therefore, the Mandate over South West Africa has been discussed in the United Nations. During that time the International Court ofJustice has given an advisory opinion and two supplementary opinions defining South Africa's obligations concerning the Territory, and South Africa has not complied with them. During that time, too, a permanent Committee on South West Africa has presented six annual reports to the GeneralAssembly of the United Nations. It has concluded that "the existing conditions in the Territory represent a situation contrary to the Mandates System, the Charter of the United Nations (and) the Universal Declaration of Human Rights". A Good Offices Committee set up in 1958 by the United Nations has failed to agree with South Africa a formula to accord South West Africa an international status. Thus the story of the Mandate vitally concerns the concept of international accountability, for the indigenous peoples of South West Africa have many times appealed to the United Nations for the application in their territory of Western standards of law and justice. These people have a long history of conflict with their European rulers. Originally colonised by Germany, they suffered a conscious and concerted policy of repression and extermination, during which 65,000 out of 8o,ooo Hereros were killed. The exposure of these abuses* was partly responsible for the solemn, if not unctuous, spirit in which the Mandates System was established. Article 22 of the Covenant of the League of Nations is as follows: "To those colonies which.., are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation, and that securities for the performance of this trust should be embodied in this Covenant." These intentions reflect the League's determination not to allow a repetition of the abuses and atrocities of the German administration. In accepting the Mandate, South Africa implicitly agreed that the wrongs of the previous administration should be righted. She agreed to administer it in accordance with several provisions, of which the most important are: Article 2. "The Mandatory shall promote to the utmost the moral well-being and social progress of the inhabitants of the territory." * See, for instance, the British Government Blue Book C.D. 9146.

Article 3. "The Mandatory shall see that the slave trade is prohibited and no forced labour is permitted, except for essential public works, and then only for adequate remuneration." Article 4. "No military or naval bases shall be established or fortifications erected in the territory." The Mandate was conferred by the Principal Allied and Associated Powers- Britain, France, The United States*, Italy and Japant. At that time the British Crown acted for the British Empire as a whole, since the Statute of Westminster was still to come. The Mandate was therefore conferred "upon His Britannic Majesty to be exercised on his behalf by the Union of South Africa". Now the problem can no longer be shelved. South West Africa is the only territory which is still administered under the Mandates System of the League of Nations. She is also the only one of these territories in Africa not to have achieved or been promised, independence; and the only one in which no representative institutions have been established to give the indigenous peoples a voice in their own government. South Africa has thirteen times refused to obey an annual resolution of the General Assembly calling on it to submit a Trusteeship Agreement for South West Africa. A resolution of the General Assembly last year drew the attention of member states to the legal steps open to them to ensure that the terms of the Mandate are carried out in South West Africa. Such legal action will almost certainly be pursued by at least one of its members; and it is the responsibility of all of its members to define their attitude to the events which will follow. The purpose of this pamphlet is to set out the facts about South West Africa, and to conclude on the basis of these facts what should be the attitude of members of the United Nations on this issue. The Commonwealth also has a responsibility relating to South West Africa. Acting as one of the Principal Allied and Associated Powers which conferred the Mandate, the was at the time the representative of the Commonwealth as it then existed. It was the British Empire, and not Britain alone, which was represented on the Council of the League of Nations. The Statute of Westminster later altered the relationship between Britain and other members of the Commonwealth, but at the time the Mandate was conferred, Britain acted not for herself alone but for what has come to be known as the Commonwealth of Nations. It should be remembered also that the Mandate was conferred not directly upon South Africa, but upon the British Crown, the symbol of the unity of the Commonwealth. * Since the United States was not a signatory to the Treaty of Versailles, her special agreement (as one of the Principal Allied and Associated Powers) was sought for the disposal of the Mandated Territories by the administering powers. An American international jurist has recently recalled in private that America's agreement was never given for South Africa's Mandate over South West Africa. This could have political repercussions now, but is probably more likely to be of purely historical interest. t Only the first three remain, since Italy and Japan lost their rights at the outbreak of the second world war.

THE COUNTRY AND THE PEOPLE South West Africa is a large territory of some 320,000 square miles, or about the size of France, with a total population officially estimated in 1958 at only 539,000. Of these some 66,ooo are Europeans, 2 i,00o are 'Coloured' people or people of mixed blood, and 452,ooo are Africans. The last official census was taken in 1951. Since then the European population has grown by some 30 per cent., the 'Coloured' population by about 25 per cent. and the Africans by about 20 per cent. Administratively South West Africa is divided into the "Police Zone"-roughly the area conquered by the Germans-and the Tribal Area, which are Ovamboland, Okavangoland Kaokoveld in the far north of the territory. Within the "Police Zone" European law and policing prevailing; outside it local adminstration is left largely to the tribal authorities. The mining industry (diamonds and base metals), karakul (Persian lamb) pelts, fish and fish products, meat and the dairy industry have made this one of the most rapidly expanding economies in Southern Africa. Mineral sales alone rose from i.5 million in 1946 to just over C34.5 million in 1956, though they dropped slightly in 1957 and 1958 to just above the recent yearly average of £28 million. From only £2.9 million in 1946-47, government revenue reached over £i 7 million in 1957-58. Total assets amounted in 1957 to £49.5 million, an excess of some £22 million over liabilities. The external debt (to the Union of South Africa) stood at under £2 million; the Accumulated Revenue Fund at C9.7 million, despite the allocation in that year of £7.5 million to the Development and Reserve Fund. Thus the general impression, despite a temporary fall in mineral sales, is one of liquidity, rapid expansion and considerable development possibilities, particularly in gem diamonds and base metals. The only large-scale foreign investment in South West Africa is in the mining industry. The Consolidated Diamond Mines of South West Africa Ltd., in which the Anglo-American Corporation of South Africa has the controlling interest, produces almost all the diamonds mined. It was incorporated in 192o by an amalgamation of ten German companies, which controlled between them about 90 per cent. of the total output of diamonds in South West Africa. A number of companies mine the territory's base metals. The Tsumeb Corporation Ltd., the largest, is American-owned. The South West Africa Co. Ltd., a British company, was almost as large, but contracted its operations considerably some eighteen months ago. Other foreign private investment is very small, and most of the private capital which is not indigenous comes from South Africa. Owing to the incorporation in 1955 of some of South West Africa's statistics into those of the Union, it is difficult to state precisely the growth of foreign investment in these industries: in 1955 there was probably a net inflow of capital of about a million and a half pounds.

The Ovambo tribe which numbers over 250,000 is by far the largest tribe. It is concentrated in the Ovamboland territory in the far north, from which many of its members go out to work in the mines and the towns to the South. Numerically less important than the Ovambo, the Herero tribe has assumed an importance far exceeding its numbers, owing to its having been most in conflict with the European settlers.* About 45,000 to 5o,ooo Hereros live in a number of separate reserves in the central area, and a large proportion of them work as labourers in the European economy. Another i I,ooo of this tribe live in exile in Bechuanaland, where the Chief and some of his people were forced to take refuge during the German war aginst the Hereros; but the two sections of the tribe have maintained contact and work together in seeking the intervention of the United Nations. The 40,ooo Hottentots or Namas live in a large number of reserves scattered over the territory, while the Berg Damaras are concentrated largely in the northern and north-western areas of the Police Zone. Other smaller tribes have separate reserves or live interspersed with the tribes already mentioned. European settlement is concentrated largely in the central area round Windhoek, the two ports of Walvis Bay and Swakopmund and smaller market towns in the widely scattered farming areas. The South is sparsely populated with European farming lands and some African areas. Lead-ores, copper and other base metals are mined in the north-east, diamonds largely in a narrow coastal strip running from Walvis Bay south to the mouth of the Orange River. The 'Native Reserves' are scattered throughout the Police Zone, and constitute all of the territory outside it. At the moment there is no pressing land shortage either for Africans or for Europeans, unlike the Union of South Africa, where the 'Native Reserves' are overcrowded and impoverished. Some of the African areas, particularly Ovamboland in the far north, contain some potentially very rich farming land. Nevertheless, the non-European population is being drawn increasingly into the European economy. With the possible exception of Windhoek itself, there are no inhabited areas where there are not at present more non-Europeans than Europeans. A large proportion of African workers in the European areas are migrant workers. A good indication of the extent of migrant labour is the relative proportion of males to females in the Reserves and in the European settled areas. In all 'European' parts of the Police Zone, there are considerably more males than females-sometimes two to one; while in all areas outside the Police Zone, and in the 'Native Reserves' within it, there are more females than males. It is clear that the African population as a whole depends for its present standard of living upon employment in the European part of the economy, and that economic development in the European economy depends upon non-white labour from the 'Native' areas. Like the Union of South Africa, though to a lesser extent, this is, economically, a racially integrated society. * See page 15.

THE ATTITUDE OF SOUTH AFRICA It was the South African forces under General Botha which conquered this contiguous territory for the Allies in 1916. South Africa contends that the Mandate has lapsed since the League of Nations no longer exists. Her intransigence on this issue stems largely from three considerations: i. The economic importance of this relatively under-populated and under-developed territory. 2. Her commitment to its European population. 3. Her sensitivity to interference and pressure from the outside world. i. Both the present government and the previous United Party government of General Smuts are and were committed to the eventual incorporation of South West Africa into the Union. There are obvious advantages to association with the wealth of the territory; and in view of the Union's policy of , with the concomitant problem of finding land for her 'surplus' African population, South West Africa is clearly a valuable acquisition. Incorporation of South West African statistics into those of the Union make it difficult to determine the extent to which resouices move between the two. The whole is an obvious economic unit and both must benefit to an extent: certainly their markets are interconnected. 2. Of the European population officially estimated in 1958 at 66,000, only some 22,000 were born in the territory, and of the rest about half (18,700) were born in the Union of South Africa. A total of 45,437 were South African citizens, and just over 33,000 were classified as Afrikaans-speaking. The German community, which numbers about 20,000 is politically associated with the Nationalist Party.* The emotional impulse of the present South African government is derived very largely from their determination to maintain the solidarity in Southern Africa of the Afrikaner nation in particular, and the European races in general. It therefore feels that it has a particularly strong commitment to the Europeans of South West Africa. 3. The South African government has come to see the South West Africa issue as a test of its strength against the United Nations. This is particularly so at this time of strong international censure. South West Africa, together with the large Bechuanaland Protectorate, make up the greater part of her north-western and northern frontier and her western seaboard. The establishment of an international 'presence' in South West Africa would seriously embarrass South Africa's attempts to impose apartheid within her own borders, particularly as it is likely to be committed to such policies for the indigenous peoples as have been pursued in other former mandated territories. South West Africa, is, so to speak, South Africa's frontier with the rest of the world, and a defeat on * See page 14. this issue at the hands of the United Nations Organisation would be very deeply felt. There is also at stake what is known as the Caprivi-Zipvel strip. This is a narrow tongue of South West African land between Bechuanaland and Northern , which was annexed to the Union by General Smuts during the war as a defence and training outpost. This was necessary in order to circumvent Article 4 of the Mandate which forbids the establishment of military and naval bases in the territory. Because the annexation happened during the war it created no outcry at the time, and it is sometimes forgotten to-day. The removal of her authority over South West Africa would cut South Africa off from this strip of land which she now regards as her own. The issue is complicated by the claim of the Paramount Chief of the Barotse Protectorate in Northern Rhodesia. He has protested to the British Government, so far without avail, that the Caprivi-Zipvel strip belongs to the Barotse tribe and ought never to have been considered a part of South West Africa.

THE ADMINISTRATION: A DE FACTO ANNEXATION Article 2 of the Mandate over South West Africa allowed that "the Mandatory shall have full powers of administration and legislation over the Territory subject to the present Mandate, and may apply the laws of the Union of South Africa to the Territory". As a concession to the largely German community of the time, it was agreed that they retain autonomy in respect of their internal financial administration. In practice this has allowed the territory to maintain a taxation structure very much lower than that of the Union, and this is a privilege jealously guarded by the European community to-day. In other respects the Territory is to all intents and purposes a part of the Union. In 1949 the South West African Affairs Amendment Act gave the European community of the Territory six seats in the South African House of Assembly, as well as four white Senators, one of whom is nominated by the Governor-General ''mainly on the grounds of his thorough acquaintance with the reasonable wants and wishes of the Coloured races of the Territory". In 1954 the administration of the African population of South West Africa was transferred to the Union Department of Native Affairs. Since 1955 trade and other statistics have been incorporated without distinction into the statistics of the Union. This makes it very difficult, for instance, to determine the extent to which capital and other resources are being diverted from one economy to the other. Thus apart from the administration of its internal fiscal arrangements, the South West African Legislative Assembly has very little more legislative authority than a Provincial Council in the Union. The Territory has not been officially incorporated into the Union, but its administration constitutes a defacto annexation. Union government policy therefore applies in almost all respects to South West Africa as much as to the Union itself. Non-Europeans have no voting rights for the Union Parliament or for the Territorial Legislature, nor may they vote in the elections to the 28 urban local authorities which administer the 'native' locations in the urban areas, nor may they stand for elections as candidates. In accordance with the Union government's policy of compulsory segregation in urban areas, Africans were removed in December last year from their location in Windhoek to another on the outskirts of the town; and it was in the course of these removals that eleven Africans were killed and forty-six injured when police opened fire on demonstrators. Africans are required to carry the same 'reference books' or 'passes' as Union Africans, though the provisions of the 'Pass Laws' differ to some extent between South Africa and South West Africa. A list of apartheid measures to which non- Europeans in South West Africa are subject is given in an Information Paper prepared by the Ghana Government and published in April, i96o. It would be tedious to repeat them here. The general effect of these laws is that Africans have no automatic right to work or reside anywhere in the territory-a permit is required even for residence in the 'native' reserves-and there is no freedom of movement from one part of the country to another. Even from their 'native reserves' Africans are subject to summary banishment without trial: such deportations have been the subject of many petitions to the United Nations. It is no exaggeration to say that in South West Africa as in South Africa the African population has none of the automatic rights to liberty, property and social life assumed by individuals in the so-called free societies. This is made plain by the reports of the United Nations Committee on South West Africa which was set up in 1953, following the Union government's repeated refusal to submit annual reports on the Territory. The Committee has presented a report every year, although the South African authorities have refused them access to the Territory and have not co-operated in any way. The reports have therefore been compiled from official publications and the evidence of petitioners. On the subject of land allocation the sixth report* points out that whereas the explicit and concerted policy of land alienation under the German administration succeeded in distributing 13 million hectares of 'native' land to European settlers, the South African administration had by the end of 1955 set aside a further 25 million hectares for permanent settlement by Europeans only-or nearly twice as much as had been taken by the Germans. By contrast only 2ol million hectares have been set aside as permanent 'native' areas. In the course of this land reservation, the administration has made plans, some of which have been carried out, to remove communities of 'Natives' out of 'European' areas, which removals, many of them in conflict with previous promises, have been the subject of a number of petitions to the United Nations. There are no institutions for technical training for Africans, and in the words of the Committee on South West Africa, "nonEuropeans are not permitted to advance to positions where they might threaten the jobs of Europeans". Under the Job Reservation Act they may by law be dismissed from employment in favour of Europeans. The Committee points to large discrepancies between expenditure by the Union Government and the Territorial authorities on 'European' and 'Native' areas. In 1956-57 expenditure from the Territorial Development and Reserve Fund was just over ,C4" millions, of which under £27,000 was expended from the Native Areas Account. Expenditure on Native health, education, administration and the development of the native areas has averaged less than Io per cent. of the Territorial budget over the last decade. The Official Year Book of the Union of South Africa puts this figure at less than i per cent. in 1955-56, after the Union Government took over the administration of African affairs. Since that year the Union Government has received an annual contribution from the Territory to finance 'Native' administration. Between April, 1955 * Official Records 14th Session: Supplement 12 (A/41 91). and March, 1958, the payment by the Territory to the Union Government totalled C313,928, of which the Union Government spent £257,217, and the balance reverted to the Union Treasury. The sum of £30,951 which was spent on development of the 'Native' reserves in South West Africa was derived entirely from Territorial funds transferred to the Union Government. The Union Government has certainly not subsidised African welfare and administration in South West Africa. On the basis of these and other conclusions, the Committee last year concluded that "the evidence available.., over the past six years tends strongly to the conclusion that the primary function of the native populations of the Territory, determined and defined through administrative policy and method, is to supply the labour without which the essentially 'European' economy could not exist". The Union Government does not deny that South African laws are applied to South West Africa. This point was illustrated in a speech in the Union Senate on the 28th May, 1956 by Dr. Vedder, who is the Senator nominated to represent non-white interests: "In South West Africa the foundations of apartheid were laid fifty years ago ... As regards separate residential areas for separate tribes, this is something we already have in South West Africa (in) the institution of reserves, and the Union Government has continued along these lines; the German Government started this... The mixing between Europeans and nonEuropeans has since I918 been prohibited by law.., and apartheid is also exercised in the locations ... It is obvious that upon working days Europeans and Natives have to work together, but at 9 o'clock at curfew all the natives have to be in their locations and are not seen in the town after this time unless they have a permit... In South West Africa we have the only country in the world where apartheid has been exercised in an increasing degree for 50 years." Dr. Vedder thus explicitly stated that the Union Government has continued and not reversed German policies in African administration.

DOMESTIC POLITICS OF SOUTH WEST AFRICA The European Community Elections to the Union Parliament and the Territorial Legislative Assembly are contested by the South African Nationalist Party and the United National South West Party (UNSWP), which has a loose alliance with the United Party of South Africa. Every one of the Territory's six members of the Union Assembly as well as its three Senators were elected as Nationalists, though one, Mr. J. P. du Plessis Basson, has since been expelled from the caucus because of his objections to the Government's Bantustan policy. These election results are not a reflection of solid support for the Nationalist Party but of the nature of the constituencies. In the last elections, UNSWP polled 11,568 votes to the Nationalist Party's 16,388, without being able to win a seat. Sixteen of the i8 members of the Territorial Legislative Assembly are also Nationalists. The Administrator of South West Africa, its executive head, is a former Nationalist Cabinet Minister appointed by the Union Minister of the Interior. The Nationalist Party of South West Africa accepts the Union Government's policy of incorporation of the Territory into the Union. UNSWP, on the other hand, recognises the existence of the Mandate but not the right of the United Nations to supervise the Administration. It presses for the United Nations' formal termination of the Mandate and its recognition of the Territory's independence. It is opposed to incorporation into the Union and to partition of the Territory between the Union and an international authority. The German community makes up about a third of the European population, within which it has always maintained an aloof and culturally close-knit position in which class-consciousness plays a part. On the whole the Germans support the Nationalist Party, but they have always been aware of their vulnerable position as a minority, and would resent any attempt to undermine or swamp their cultural identity. For this reason the Germans have never been particularly vocal in favour of integration into the Union. Many of their leaders were interned by the Smuts Government during the war for sympathies with the Nazi cause, and for this they have never forgiven the United Party. While therefore there are now signs within this community of disillusionment with the Nationalist Government and of ambivalence on the issue of incorporation, their votes are unlikely to go to UNSWP which they see as the equivalent of the United Party. Mr. Basson, who has recently formed a new moderate party, the National Union, is confident of winning support among the German community of South West Africa. But his own attitude to the future status of the Territory has not yet been declared. Therefore, though there is considerable opposition to the South African Government among Europeans in the Territory, it should not be assumed that a policy based on internationally acceptable standards of treatment for Africans would gain significant support among them. International supervision, the essence of the Mandate, is rejected by all European political parties; and any move to enfranchise the indigenous peoples would certainly be almost solidly opposed. Opposition to the Government here, as in the Union itself, rests largely on criticisms of Afrikaner nationalist ambitions, and on the Government's methods of implementing apartheid, which sometimes conflict with European economic interests. With few exceptions, critics of the present Government accept its framework of racial discrimination and do not favour an integrated or democratic society in the foreseeable future. Any administering authority would have to face this fundamental. conflict between African aspirations and the European's attitude to his privileged position. On this issue there is very little difference between Europeans who support and Europeans who oppose the present Nationalist Government. The Non-White Community Long before the question of the Mandate arose in the United Nations, the Africans in South West Africa consistently sought the return of their lands and rights which were removed by the German administration. The Herero tribe has been in the forefront of this movement. An intelligent, proud and close-knit people, they were the first tribe to come in contact with and to imbibe the Christianity and education brought by the missionaries in the early nineteenth century. Living in the southern and central areas, it was they who suffered most under the German administration. Following the 1904-7 rebellion, the Herero tribe was reduced from 8o,ooo to 15,ooo, and the lands and cattle of those who remained were confiscated. The British Government Blue Book C.D. 9146 said of the rebellion which provoked this massacre: "There is something deeply pathetic in this picture of the desperate Herero warrior with his ancient rifle and half a dozen cartridges deciding to rise and defend his liberties against the might of the German Empire, and despite his ... anxieties and the terrible future which faced him, passing resolutions and giving orders to ensure the safety of the women and children of his oppressors". At the end of the first world war the Hereros understood the establishment of the Mandate to imply the return of their lands: this was a logical consequence of the intention to right the wrongs of the German administration. Instead the South African Government has made further extensive inroads into their traditional lands, offering them alternative areas in the far north. The Africans have resisted these moves not only because they have considered the new lands inferior, but because of their refusal on principle to concede South Africa's right to order their removal. By 1946, despite their protests the Herero tribe was divided between eight separate reserves, passes being required to move between them. These stands on principle have been a feature of African resitance in South West Africa. For several years before the Windhoek removals last year, for instance, there wvas consistent agitation

0.00_0.0711 000000 r 000-, .00JDA, 0 50 100150200 MILES S. RHODESIA Swakopmund Walvis Bay' Boget CAPE 'U++ e Johannesburg -.-' " ORANGE *Kimberley "Bloemfontein °... FREE STATE PROVINCE London 0 Port Elizabeth IN D High Commission Territories p. African Areas in Union and E South-West Africa -- Police zone boundary S.W.A. ° , against falling in with a law based on apartheid. Later, of course, the practical disadvantages of the move assumed much greater importance: rents in the new location are about k2 a month, those in the old, 3s. 6d., and transport costs are much higher. These additional costs are crippling in a community where the average wage is £8 a month. Nevertheless, a part at least of the initial protest was derived from a refusal to concede the principle of apartheid. In 1946, Chief Hosea Kutako made his first request to the Union Government to be allowed to present his people's case before the United Nations. The South African Government had in that year conducted a referendum on the question of the incorporation of the Territory into South Africa. Having refused a request from Chief Hosea and others for United Nations supervision of the referendum, the Union Government announced a majority in favour of incorporation. Chief Hosea contended that the referendum had been unfairly conducted and requested that four spokesmen from his tribe be allowed to put its case to the United Nations. The South African Government refused. In the following year the Reverend Michael Scott took a petition to the United Nations from the Hereros, the Namas and the Berg Damaras. United Nations document A/C/4/96/i3(b) records the evidence of an Ovambo on the subject of the referendum: "The men who conducted the referendum, mainly the Chief Native Commissioner, Major Hahn... did so in this way. He said the Government had come to ask them who they want from among these people. Do they want an Italian? Do they want a Chinese? Do they want a Russian? Do they want a Portugese ? Or do they want an Englishman? The people replied: 'We do not know any other nations except the English people.' Major Hahn didn't mention anything about the incorporation into the Union of South Africa..." The Union Government's official statement to the United Nations on incorporation confirms the implications of this objection to the conduct of the referendum: "If there was one question which recurred more than any others, it was whether any change in the Administration of the Territory would remove them from under the shadow of the Crown of King George of England. Once assured that the change implied no departure from South Africa's partnership in the British Commonwealth of Nations, the Natives declared themselves fully satisfied on this point." The officials had, of course, no right to give such an assurance, particularly in view of the republican aims of the then Opposition, now the Government of the Union. Since the South African Government has consistently refused to allow Africans from the Territory to put their case before the United Nations, or to transmit their petitions, the Reverend Michael Scott has continued to represent them. In recent years he has been joined by non-whites who have escaped from South West Africa to give evidence before the Fourth (Trusteeship) Committee.

For historical reasons the Hereros under Chief Hosea Kutako have led the movement to focus United Nations attention on South West Africa. This movement has recently been channelled into the South West Africa National Union with Chief Hosea as President. The Ovamboland People's Party, formed among the Ovambo in the townships of the urban areas, has, by all accounts, succeeded in winning support even in the Ovamboland Reserve. African Nationalism, if such it can be called in South West Africa, has never been a revolutionary, or even a militant, movement. The African protest has had much the same psychological basis as that of the non-white population of the Union. Until Sharpeville, African nationalism in South Africa was a reformist movement, demanding the opportunity to share in the European economy and way of life, not to replace or destroy them. Since Sharpeville, of course, militant Africanism, on the West African pattern, has grown apace in South Africa. But in South West Africa, the movement remains, so far, reformist, traditionalist, even conservative; its leadership, moderate and mainly Christian. Passive resistance is its chief weapon, the United Nations its chief hope.

THE INTERNATIONAL STATUS OF SOUTH WEST AFRICA The Mandate of the League of Nations The South African army, under General Botha, conquered South West Africa for the Allies in 1916; and South Africa's claims to the territory are sometimes condoned in terms of this fact. But the Mandates System was established (as we have seen) in order to restore just rule to the indigenous peoples of the German colonies. The specific intention was that these territories should be regarded as 'sacred trusts of civilisation', and not as spoils of war. In the interwar period South Africa submitted the annual reports required of her. The indigenous people's right of petition was not exercised, possibly because of ignorance. The Union was not unduly criticised by the Mandates Commission for her administration of South West Africa: African nationalism and the right of selfdetermination had not assumed the prominence in international affairs which they have to-day, nor were there such obvious differences between political progress in Southern Africa and that in most of the rest of Africa as there are to- day. The general intentions of the then South African Government were on the whole apparently as acceptable as those of the other Mandatory Powers. Moreover, South Africa's subsidisation of the territory's development during the depression of the 30's (when South West Africa's mineral revenues fell drastically) undoubtedly raised her stock in the Mandates Commission. The Move for Incorporation In 1934 South Africa began to press for the incorporation of South West Africa as a fifth province of the Union. She was opposed in the Commission partly on the grounds that such a move would be contrary to the Mandate, and partly because it would conflict with explicit provisions in the Union's own Constitution concerning attachment to the Union of territories which formed part of the British Empire. These complicated provisions need not concern us further here. The issue was not at that stage seriously contentious and in 1937 its last formal discussion on the subject was summarised as follows: "The Commission noted the statement in the annual report that the Mandatory power 'is of the opinion that to administer the Mandated Territory as a fifth province of the Union subject to the terms of the Mandate would not be in conflict with the terms of the Mandate itself.' It also noted that the Mandatory 'feels that sufficient grounds have not yet been adduced for taking such a step.' The Commission does not express any opinion as to the method of administration, the scope of which it has had no opportunity of judging, and the adoption of which, according to a statement of the Mandatory power, is not contemplated; it confines itself to making all legal reservations." Since the United Nations Organisation succeeded the League of Nations, the possibility of incorporation has receded as the United Nations' dissatisfaction with the administration of the Territory increased. In 1946 the South African Government of General Smuts claimed that a referendum designed to test South West African opinion on this question produced a majority in favour of incorporation. But the evidence produced before the Fourth (Trusteeship) Committee by the Reverend Michael Scott on behalf of the Hereros, the Namas and the Berg Damaras, indicated that the issues had not been fairly presented and that African opinion was not fully consulted.* As evidence of maladministration mounted, South Africa has been forced on to the defensive over South West Africa; consequently her demand for incorporation has fallen into the background. International Status under the United Nations The International Trusteeship System superseded the Mandates Commission as a means of supervising the administration of former Mandated Territories. Authority over these Territories now lies with the General Assembly which may adopt binding resolutions by a twothirds majority. In a sense, therefore, the administering powers are now at a comparative disadvantage, since the Mandate Commission was a non-political body composed of specialists, and its decisions required a unanimous vote. Nevertheless, all the Mandatory Powers except South Africa, voluntarily submitted a Trusteeship Agreement for those of their Mandates which were not given independence. A brief diversion will be useful at this stage to clarify the relationship between the International Court of Justice at the Hague and the other organs of the United Nations. First, any organ of the United Nations, such as the General Assembly, is entitled to seek from the Court an advisory opinion on any point of international law in much the same way as a private individual might consult his lawyers. In such circumstances, the decision of the Court is not binding, though its pronouncements carry strong moral weight. Second, an individual member of the United Nations may, in certain special circumstances, invoke the compulsory jurisdiction of the Court by instituting contentious proceedings against another member. This course of action is not open to organs of the United Nations acting as corporate bodies. It is a very much more complicated process than the delivery of an advisory opinion, since it involves an initial decision by the Court as to whether it has jurisdiction or not. In theory the Courts' judgment in these circumstances is binding upon both parties. But since the Court has no police force of its own, the enforcement of its decisions rests with the Security Council of the United Nations, and can only result, in the last resort, from a political decision by members of that body. At the request of the General Assembly, the International Court * See page 18. has already given an advisory opinion and two subsidiary opinions on the international status of South West Africa. In the course of these opinions, given in 1950, 1955 and 1956, the Court has found that: The Union of South Africa is obliged to accept international supervision of South West Africa; and the General Assembly of the United Nations is qualified to exercise such supervision in such a way as would correspond most closely to the Mandates Commission. This includes the examination of petitions and annual reports, which the Union Government is obliged to transmit, as well as the hearing of oral evidence. Nevertheless, South Africa is not legally obliged to place the territory under the International Trusteeship System. South Africa, acting unilaterally, is not competent to modify the international status of the Mandated territory. South Africa is obliged to accept the compulsory jurisdiction of the International Court of Justice relating to the territory, in terms of Article 7 of the Mandate and Article 37 of the Statute of the International Court.* These opinions of the Court are summarised as follows in the sixth report of the Committee on South West Africa, which was accepted by the General Assembly: "The International Court reiterated in 1956 that the obligations of the Mandatory continue unimpaired with this difference, that the supervisory functions exercised by the Council of the League of Nations are now to be exercised by the United Nations." This is an unambiguous definition of the status of South West Africa in international law, and of South Africa's obligations to the United Nations General Assembly. What is not yet clear is what the United Nations Organisation, as the new second party to the Mandate agreement, can do about it. A special Committee on South West Africa was asked in I957 to examine what steps were open to individual members of the United Nations or to the organisation acting as a whole to ensure South Africa's fulfillment of the Mandate. They concluded that there were two possible courses of action. The first arises from Article 7 of the Mandate which reads: "The Mandatory agrees that if any dispute whatever shall arise between the Mandatory and another member of the League of Nations relating to the interpretation or the application of the terms of the Mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice." This would imply that certain members of the international communityt could invoke the compulsory jurisdiction of the * See below. t While there is some doubt as to the right of members of the United Nations who were not members of the League of Nations to invoke the compulsory jurisdiction of the Court in a contentious proceeding, there seems to be no doubt that a former member of the League is vested with such a right under Article 7 of the Mandate.

International Court. The r6le of the Court was made clear by Sir Arnold McNair, a British judge, in the course of the 1950 opinion of the Court: "The judicial supervision (of the Mandate) has been expressly preserved by means of Article 37 of the Statute of the International Court of Justice: 'Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice'" If therefore any qualified member of the United Nations brought before the Court a dispute with South Africa relating to the interpretation or application of the provisions of the Mandate, South Africa would be obliged to abide by its judgement, even if she were to refuse to give evidence before it. If she refused to do so, the other party would have recourse to the Security Council, which might take steps to give effect to the judgement. However, there is one possible difficulty involved in this approach. The Court has indeed declared that South Africa is subject to its compulsory jurisdiction. But the question is how far its jurisdiction extends. It can be argued that no individual state can be in dispute with South Africa unless that dispute concerns the interests of the state which brings the action. This would imply that the jurisdiction of the Court contained in Article 7 of the Mandate extends only to such breaches of the Mandate which affect the interests of other members of the League individually. The argument would be that since the other party to the Mandate was the League itself and not any individual member of it, only the League could take positive action, legal or otherwise, to ensure the Mandate's fulfilment or revocation in toto; so that the compulsory jurisdiction of the Court under Article 7 would apply only to such cases where the interests of individual member states were involved. Whether or not this interpretation of Article 7 is valid in law, it could, and probably would, be argued, and the effect would be to delay the proceedings of the Court, which are in any case likely to take several years. The second course of action pointed out by the Special Committee on South West Africa involves the United Nations acting as a corporate body. The Committee recalled that in the course of the 1955 opinion of the Court, the late Sir Hersch Lauterpacht, a British judge of the International Court, said: "A State may not be acting illegally by declining to act upon a recommendation or series of recommendations on the same subject. But in doing so it acts at its peril when a point is reached when the cumulative affect of the persistent disregard of the articulate opinion of the organisation is such as to foster the conviction that the State in question has become guilty of disloyalty to the Principles and Purposes of the Charter. (Such a) State .... may find that it has overstepped the imperceptible line between impropriety and illegality.., and that it has exposed itself to consequences legitimately following as a legal sanction." In their report the Special Committee on South West Africa commented as follows: "It would follow that the General Assembly might recommend to members of the United Nations that they adopt measures which, in the opinion of the Assembly, would increase the probability that the State in question would fulfil the obligations which were binding upon it." It is not easy to say what this would mean, except in very broad terms. The Charter of the United Nations allows the imposition of economic, or even military, sanctions against a defaulting state. Presumably, however, the General Assembly would first call upon South Africa to fulfil the Mandate to the satisfaction of the United Nations, or else to relinquish her authority over it, and only failing compliance would sanctions be contemplated. However, since there were no specific provisions under the Mandates System for terminating the Mandate, some members of the United Nations are unlikely to agree to impose sanctions on South Africa without a specific indictment by the International Court of South Africa's administration of South West Africa. These countries would probably also require a declaration by the Court as to the circumstances under which the General Assembly is entitled to revoke the Mandate or to enforce its proper fulfilment. These issues could be settled if the General Assembly were to ask the Court for an advisory opinion on the following questions: i. Has South Africa, by virtue of her administration of South West Africa and her refusal to submit to international supervision, in fact altered, unilaterally, the status of the territory (remembering that the Court has already declared that she is not entitled to do so)? 2. If she has, is the General Assembly entitled to: (a) impose sanctions to ensure South Africa's proper fulfilment of her obligations, and/or (b) revoke the Mandate? If the Court were to pronounce positively on both these questions, the General Assembly would have as good a case for acting on this advisory opinion as it would for enforcing a binding judgement-in both cases a political decision by members of the United Nations must follow the legal decision of the International Court. Two further advantages attach to the advisory opinion. First, it would take very much less time than a binding judgement, since jurisdictional issues are not involved. Second, whereas the outcome of a contentious proceeding is determined by the nature of the dispute, the General Assembly can ask the Court to give an advisory opinion on any specific point it wishes to clarify.

South Africa's Argument South Africa claims to administer South West Africa in the spirit of the Mandate, but to have no further international obligations relating to the Territory. This attitude has not been consistently maintained. In 1947 'the Union Government did in fact submit a report to the Fourth Committee; and it was only in 1949 when this report had been pronounced unsatisfactory that South Africa declared her decision "in the interests of administration" to discontinue reports, since, she claimed, they were being used for propaganda against the Union. However, until 1958 it could be said that South Africa had consistently refused to accept the United Nations as the second party to a new agreement on South West Africa. In that year the Union representative declared his government's willingness to consider partition of the Territory, the southern and central portion to be incorporated into the Union, the northern part to become a United Nations Trusteeship Territory under Union supervision. This concession clearly compromises South Africa's previous legal contentions. It was made in the course of discussion with a three-man Good Offices Committee set up by the United Nations in 1957, negotiations with which in itself represented a concession by South Africa to international interests in the Territory. But the partition suggestion was not pursued after 1958. The South African representative withdrew from the debate in protest against the Fourth Committee's decision to hear oral evidence on the subject from the Reverend Michael Scott and an African from the Territory. In the ensuing discussion its was argued that partition sanctioned by the United Nations would amount to support for the policy of apartheid: the United Nations would find itself assisting in the very process of division which the Union Government seeks to achieve. Moreover partition would imply the right of the United Nations to flout the geographical integrity of a Mandated territory without the agreement of the population; and it would deny the inhabitants of the proposed Trusteeship Territory the benefits of the rich mineral resources in the central and southern areas. As a solution to the problem partition would probably still be acceptable to the Union Government, but it has no support among the African population of South West Africa and very little among white opponents of the Nationalist Party. The proposal was advanced by the Good Offices Committee purely on the grounds that it was the only political solution involving the United Nations which the South African Government would be prepared to consider; it was not justified in terms of the moral obligations of the United Nations towards South West Africa. South Africa has made one further concession to international rights in the Territory. She has offered on several occasions to enter into an arrangement with the remaining Principal Allied and Associated Powers-Britain, France and the United States- provided that their supervision extended only to the right to bring a complaint before the International Court in respect of the administration of South West Africa. This proposal has been rejected by the United Nations since it excludes the rest of the international community as well as the possibility of administrative supervision of any sort. These two suggestions represent South Africa's only concessions to international rights in South West Africa. But the tone of her representative at the fourteenth session of the United Nations last year was noticeably more conciliatry. As a signatory to the Charter of the United Nations South Africa cannot and has not denied that she is subject to the compulsory jurisdiction of the International Court, but she rests on the legal fact that since all the Court's expressions on South West Africa so far have been advisory opinions and not binding judgements, the Union is not obliged to abide by them. Yet South Africa's position is clearly very vulnerable at the moment. She is not likely to repudiate her policies without sustained and considerable pressure from outside; at the same time she is now more disposed to consider negotiations to avert a head-on clash with the rest of the world.

THE COMMONWEALTH RESPONSIBILTY The Commonwealth as a whole, and its individual members, have a particular responsibilty towards the issue of the South West Africa Mandate. Part of the preamble to the Mandate states that: "Whereas His Britannic Majesty for and on behalf of the Government of the Union of South Africa has agreed to accept the Mandate in respect of the said territory, and has undertaken to exercise it in accordance with the following provisions." The Crown is still the symbol of the unity of the Commonwealth. It can therefore be argued that the whole nature and reputation of the Commonwealth is at stake if a Mandate conferred upon the Crown is exercised contrary to the decisions of the International Court and in contravention of the Charter of the United Nations to which all its members are parties. If the Crown is thus brought into international disrepute, the Commonwealth is also indicted. There is, however a, more practical reason for Commonwealth interest in this issue. In view of South Africa's willingness to negotiate with the remaining Principal Allied and Associated Powers, it is as one of these that Britain and the Commonwealth should see themselves now. In co-operation with France, the United States, Italy and Japan,* the United Kingdom conferred the Mandate in her capacity as representative of the British Empire, or the Commonwealth as it then existed. Her international actions at that time automatically committed the other members of the Commonwealth to the same course. It is true that the subsequent enactment of the Statute of Westminster altered the status of the members of the Commonwealth; but if South Africa argues that she can be held responsible to the Principal Allied and Associated Powers, it must be to the Commonwealth as a whole, and not to the United Kingdom alone, that she sees that responsibility. Legalities aside, the Commonwealth, as a voluntary association of equals without formal sanctions or institutions, might provide a channel of negotiation with South Africa through which the intentions of the international community might be implemented. This is not to suggest a substitute for action through the United Nations, with which the ultimate responsibility for the Territory lies. But it may be possible for negotiations to be conducted through the medium of the Commonwealth, since the Union Government has rejected all direct approaches by the United Nations. As international opinion hardens against her, South Africa may become more open to a solution involving no overt sanctions. If such an approach were to be made by the Commonwealth, Britain's role would be crucial. And it would entail a change in, if not a reversal of, her present policies on the South West Africa issue. Britain has supported South Africa at the United Nations, voting against her only on minor clauses of the resolutions passed in recent years. She argues that no solution can be found without the * Italy and Japan forfeited their rights at the outbreak of the second World War. co-operation of the Union Government, which therefore should not be antagonised. Her legal arguments have been more obscure. For some years after the war, Britain maintained that while the international status of the territory was still unsettled, its administration was South Africa's concern alone. Latterly she seems to have based her case upon South Africa's legal contention that the procedures of the Fourth Committee, the Committee on South West Africa and the General Assembly are not close enough to those of the Mandates Commission to oblige South Africa to recognise them. In 1956, Britain went so far as to send her Attorney-General, Sir Reginald Manningham-Buller, to argue the case against the hearing of oral petitions by the Fourth Committee. He was opposed by a lawyer from the Government of the United States. South Africa did not give evidence. Sir Reginald argued that the hearing of oral evidence, which had not been practised by the Mandates Commission, went beyond the scope of the United Nations bodies qualified to exercise supervision. He thus recognised by assumption the previous decisions of the Court; and the i950 judgement was explicitly accepted by the British delegate to the Fourth Committee in 1958. The Court ruled unequivocally against Sir Reginald's contentions. But Britain has not altered her policies on South West Africa at the United Nations. Thus whether or not Britain is required to take any initiative through the Commonwealth, she will have to re-define her attitude to the Mandate, which, to say the least, has become very obscure. Ultimately the matter is likely to reach the Security Council, when a political decision will be called for. But such a political decision is equally required if the Commonwealth influence is to be used to precede or to channel action by the international community.

CONCLUSIONS Clearly, if South Africa's policies within the Union are "morally wrong and unworkable",* they are equally so in South West Africa. The Union Government does not deny the extension of apartheid policies to the Territory, with all this implies for the future of the white as well as the African communities there. But whereas South Africa can at least argue that apartheid within the Union is her own concern, she cannot sustain her case that the same is true of South West Africa. In view of recent developments in the Union, and in view of the sharpening of attitudes at the United Nations, the question now urgently arises how the situation can best be salvaged. A change in the attitude of the Union to the South West Africa Mandate can no longer be expected without strong pressure from outside South Africa. The Conference of Independent African States which met in Addis Ababa in June, 196o "conclude(d) that the international obligations of the Union of South Africa concerning the Territory of South West Africa should be submitted to the International Court of Justice for adjudication in a contentious proceeding" and "note(d) that the Governments of Ethiopia and Liberiat have signified their intention to initiate such a proceeding." The Conference also set up a Steering Committee of four African states, including Ethiopia and Liberia, to "determine the procedures and tactics" of this course of action. Presumably this Steering Committee 'could on reflection conclude that an advisory opinion on the lines set out above could achieve the same result more quickly, and it may advise accordingly. Its present intention, however, is to invoke the compulsory jurisdiction of the Court. Ultimately, as we have seen, members of the United Nations will be called upon to make a political decsion following the Court's legal decision-whether this takes the form of an advisory opinion or a binding judgement, since neither will be automatically enforced. If the Court declares South Africa to be in breach of her obligations under the Mandate, the General Assembly must clearly call on South Africa either to renounce the Mandate or to fulfil her obligations under the supervision of the international community. Such an order should be supported by every member of the United Nations. In face of such a declaration by the Court, even Britain's natural loyalty to South Africa must yield to her obligations to the world community. * The Foreign Secretary, Mr. Selwyn Lloyd, speaking on 4th April at a meeting in his own constituency in Cheshire. f These two countries are former members of the League of Nations.

Confronted with such an order South Africa could either renounce her authority over South West Africa, or fundamentally change her administration of it, or defy the United Nations. South Africa knows that she cannot forever fly in the face of the international community: that she has been able to do so for so long is largely due to the loyalty of Britain and the Commonwealth. Nevertheless she is unlikely to comply even with a binding judgement of the International Court unless it be clearly beyond dispute that members of the United Nations are prepared to enforce their decision or that of the Court. South Africa's position would be greatly strengthened if she were given to believe that Britain, or indeed any other Power, might use a veto to prevent the international community from asserting what the Court has already declared to be their right in international law. It is important therefore that Britain should now declare her intention of backing a decision of the International Court. To do otherwise would only encourage South Africa in her opinion that the United Nations is not to be taken seriously on this issue. There remains the distinct possibility that South Africa will defy the United Nations. It should be recognised that even if she does so, she will be well aware of her vulnerable position in a friendless world. It is therefore worth trying to interpose some channel of influence and negotiation which may be seen by South Africa as a way of averting United Nations sanctions. At all stages the Good Offices of the Commonwealth, acting on its own or directly on behalf of the United Nations, should be available for negotiation. If the United States were to participate, the effect would be strengthened. The United States delegation to the United Nations has recently taken a clear line against South Africa's position.* An approach by the Commonwealth, if it were successful, would have the advantage of excluding the cold war and other international rivalries from the final settlement of the future of South West Africa. In any case the matter will come before the United Nations, so that the Commonwealth initiative could not be a means of circumventing the international community. On the contrary, the informal approach should be auxiliary to the procedure of the United Nations General Assembly. If South Africa does not respond to Commonwealth influence there will be no alternative to United Nations sanctions against her to restore to South West Africa her international status. In the full recognition that such sanctions are never the best solution to any problem, Britain should nevertheless make it clear to South Africa that in the last resort she will not shrink from their use if all else fails. As long as the Union can continue to hope for British support, she will not come to terms with the United Nations. * A staff correspondent of an American newspaper, the Post-Despatch (3oth October, 1959), wrote of the fourteenth session of the Assembly last year: "The United States has chosen the South West African issue as the basis for a major change in its African policy... American diplomats are supporting measures proposed in the Trusteeship Committee by African nations."

As one of the Principal Allied and Associated Powers which conferred the Mandate, as a member of the Commonwealth and the repository of the Crown, as South Africa's most sympathetic ally, Britain has a special responsibility. She should: Declare her general intention of assisting the international community to establish international rights in South West Africa, and make it clear that she will not support South Africa at the United Nations. Immediately declare her intention of supporting any decision of the International Court which it might be asked to give on the issue of South West Africa. Make herself available for negotiations with South Africa through the Commonwealth or other informal channels. WILLIAMS, LEA AND COMPANY, LIMITED, WORSHIP STREET, E.C.2

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