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Question of Namibia - Status of Walvis Bay (Legal Status and Background Data - Claims by South Africa)

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Question of Namibia - Status of Walvis Bay (Legal Status and Background Data - Claims by South Africa) UN Secretariat Item Scan - Barcode - Record Title Page 49 Date 06/06/2006 Time 11:29:20 AM S-0902-0002-14-00001 Expanded Number S-0902-0002-14-00001 Title items-in-Africa - Question of Namibia - status of Walvis Bay (legal status and background data - claims by South Africa) Date Created 09/06/1976 Record Type Archival Item Container S-0902-0002: Peacekeeping - Africa 1963-1981 Print Name of Person Submit Image Signature of Person Submit UNITED NATIONS NATIONS UNIES I \n3 6*- UNITED NATIONS NATIONS UNIES POSTAL ADDRESS -ADRESSE POSTALE UNITED NATIONS. N.Y. 1O017 CABLE ADDRESS ADRESSE TELEGRAPH IQUE UNATIONS NEWYOHK REFERENCE: IT , FI \ I H * A r t fiu. Ju /i «>-« - « r - . tl. .>L t*. ^Vxs v) dtttoJrCo** - /$-:-CDUNCIl'":(CORRECTEDl'REPTH): l/\ p -3=^. ' W^NITED|NfiT.iOp^JUL¥v24j REuTER - CONFLICTING CLRIHS TO. ^PQSED/fl THREfiT TO THE NRH1BIR (SOUTH WEST " ' ?RF.RICfl>7-SETTLEHEHT'. HORKED OUT.BY THE --WESTERN ilEHBERS OF THE • IITV COUNCIL. .: "• : -r S BBV IS THE TERRITORIES DEEP-kiRTER PORT; OVER I4HICH -. NT SOVEREIGNTV? ulHILE HfirilBIBN BLfiCK : kGULiy!HfiVE%HE^SECURITVxCOyHCiL, ? DUETTO HEET LfiTER THIS HEEK-TO OUGH"THE>nN.JEGRfiHON OF yfiLVIS BfiV HITHINMTS TERRITGRV. TOIORflpRIflr-SOOTH-'flFRICfl^SOUTH NBFRICfi N FOREIGN MINISTER-LRSHINISTER LBST NIGHHIGHT Jfiffi^J^E&KBBSSflDGRS'OF-,THE:vCOUNCIL'S FIVE-14ESTERN &jiBEXs^T|^ RND. CfiHRDR. -..r . _—"fiT . _. •.'•*r «•. <_ .& *L •• <u «• *• *«?Tw •..'•*tj»-t*iw* *^^ »ii^.i>»f^*»i»iij^>\.*;?^^^ I" *• ^^i%^*)\^ *'f^:j^* t:rt*-iTT%T^ THBT "OPPOSE THE RESOLUTION, EVEN THOUGH IT . -llv v^^i' • VXi «'i • Nflf QMS': i'SQUTH'fiFRicR SRID THE'FOREIGN NINISTER. MR.* . 1 H • Rir*F:"(PIK-)?.BOTHflf FELT' HIS GOVERNMENT URS BEING "DOUBLE iCROSSED»a;fiS\lPHRD UNDERSTOOD THE I4ESTERN PLRN'S RvOIDfiNCE OF HRTIONRLISTSJ POSITION ON ' PRECEDED FOR/CLfililS OVER PfiRTS OF , NEIGHBOURING LESOTHO. V-'THE COUNCIL WOULD BE fi SECOMNENDflJljDNriRND^NOJ'BINDIHG ON SOUTH RFRICfi. ?FOR^T.HIS:iREBSONr SOHE SOURCES HERE TENDED TO FEEL THfiT HR .G.OVERHHEKTl'li OF RCCEPTfSNCE OF ^SFORCE:fiHD|ESTfl8LISHHENT-OF fl U/N. CIVILIRN OPERRTION TO _*i *-^j.P;3- *•• - _ _ __..._ .____.... _^ . MUTED NRTGHS;V": ' . HOLD'CGNSULTRTIOHS LRTE THIS ' fiFTERNOONnO^PREPRRE FOR THE PUBLIC DEBRTE OH THE SETTLEMENT! BEGIN LRTER THIS MEEK? POSSIBLV RS EfiRLV E'LIKELV ON MEDNESDRV OR THURSDRV. P^HR$B07Hfi^HRD$BEEN EXPECTED TO'COHE HERE TO TRKE PRRTj, BUT fuC^rrTr,c^n^tuoT^Q!/Tyr;.-THE'::TRIpJ;;|:iPpBR£NTLy .JH fi GESTURE OF BRV DEVELOPHENT. TO BE SUBMITTED Tu^THE COuHCIL BV :HRURI.TIUS?%NIGERIRVRND GRBOH,MOULD HRVE THE COUNCIL DECIDE TO InS'TULl"SUPPORT TO JHE INITIRTION OF STEPS NECESSBRV TO fENSURE^ERRLyiSEIHTEGRflTION OF HBLKVIS.BBV IHTO. HBHIBIfli-.BND '"THE RTTRINHENT^OF THIS OBJECTIVE* SOUTH FRiCfl^MUST^80T|;USE^THEiPORT'IIN*flNV-'HBHHER PREJUDICIRLS TO THE IMBHIBIB^OR•ITS-ECONOMIC VIRBILITV. SEIZED OF THE HRTTER INTO NBH.IBIB. •: > ^fl%PJRBJ^RESOLUTIOHi'-OyER--HHICH-'THERE l^IRS UNDERSTOOD TO '•S^i:BE^LIT7LE:^OR?HO<-COHTROVERSVf'-WOULD. RUTHPORISE SECRETflRV- : 1''S§GENERfiL' -*t**V*aS. :KURTl'HRLDHEIN TO RPPOINT R SPECIRL REPRESENTATIVE TO G 'fc ,">••-' t ,. •^T' ^J -—«—•...•^•r-n-.i.M "IgMnimu IJi'Ji'-L' *• •y -*y^rJ_4fa.5iJ^^ll;V.-1; JLI'-'-..; ,•'.-• •."•].. • . :;:;>^- *• ;•'••' .;' . ,-v . • v:,<« :-• ;;>«, . W'LJP N8R SBF ^. '• " fl225;TERRSTORY^CQUNCIL 4 UNITED NRTONS; JGHi IT vilLL BE THE BIGGEST SUCH EXERCISE f "-j " ''• t\l\ nnUIrill.'illi'vllAlr "•• iiIJi' * iifc. t iii»fc.«f ti W1.-H-- ».jv — ..— . — - — liisPRTCHlpFfR^FORCE OF BBOUT 55 ODD OFFICERS BND MEN» DRBNN/FROil. !fiFRICf!M?fEUROPERN,BND BSIBN COUNTRIES? RND R CIVIL :;:::- [RBTlONo^ BBOUT IjOOO. v '"'''" ^SOURCES SBID TODRV THBT BOTH NUHSERS NIGHT PROVE i^HE^CRETBRT-GENERBL'S'SPECIflL-R^RESEHTaTIVE NILL BE iTr"40 OFFieifiLS. EXPECTED TO NflHE THE COHNRNDER OF THE U.N. v^. :-:.*..•;--,-. .-„.,.., v,: •-.-.• • m- ^ ----- •^c-.-V--, -,r..i.-^.,.r • . * - . ' • s, --•'. ' '• > ••. i UNITED NATIONS £$11 NATIONS UNIES INFORMATION CENTRE—DAR ES SALAAM INTEROFFICE MEMORANDUM TO.- The Secretary-General Date FILE No.:_ V - • . FROM: Keith Beavan : • " • : SUBJECT: NAMIBIA]!! MBETINgS.'IFr TAH2AITIA 1) The following three points, for obvious reasons, will not be reflected in substance in the reports of the mission of the Council for :"".:" ";:':"Hamibia to Tanzania, The first two points were made by President ITyerere •- .. - :in.the consultations; the third by the Foreign Minister, The Foreign '•".."• .Secretary of SWAPO was at both meetings. He made no comments on the remarks, 2) a. President ITyerere said on^jhe question of ffalvis Bay that any decision on tSe matter must be made by SWAPO and it was not up to the UN or the OAU to make any compromise on the question. However, he, personally_felt : that if OTAPO-pressed on with this problem of \7alvis Bay indepjgncignce ror jMamipia, iie, personally vyould >c __ and_deal vath_felvis Bay later. He cited the facts that India became independent witEout u-oa, tnafUS forces remained in G-uantanamo in Cuba and that Hong Kong and Macao remained under foreigners, b. The President said while he could not tell SWAPO what to do in : the talks with the Five, if he were S\7APO he \vould exhaust the avenues of the talks on.the basis of Security Council resolution 385, while putting pressure on South Africa from the military side, before resorting to other means of pressure through the.-United nations, such as calls for a special session and demands for economic'-.sanetions, , c. The Poreigji Minister said that while he was speaking hypothetically and did not for see such a scenario, if there was .'conflict about the_Special Representative for Namibia reporting"to T;he Secretary-General or to the Council 'foirNamibia_the_choice~should~'be' left"compietely~ to l;he~Secretary- : Qeneral and -If it^was proved that_the'Touncij: for Namibia was an obstacle to the independence of Namibia then it should cease~^o function, " ~" MKP/JEB 2 March 1978 LEGAL STATUS OF WALVIS BAY (Summary of the opinion of the Legal Office) Walvis Bay and South West Africa (Namibia) became colonial and non-self-governing territories by virtue of their acquisition by Great Britain and Germany respectively between 1878 and 1884. Both entities have an inalienable right to decolonization together as an integral whole. The principles of General Assembly resolution 1514 (XV) on the granting of independence to colonial countries and peoples, including those of the Charter of the United Nations, aw n regard to non-self- goyerjiing territories and are clearly applicable in this case . In this connexion, it should be recalled that in resolution 1514 (XV) the General Assembly stated inter alia that "any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations" . The result of the arbitrary division between two colqnial powers of what was geographically and historically a single territory was that Walvis Bay was artificially separated from the rest of the territory. It is, therefore, clear that Walvis Bay was not part of the German protectorate of South JWest Africa which became a mandated territory under the administration of South Africa in 1922. On the other hand, it is equally clear that South Africa has recognized the necessary unity of the whole^ territory by treating Walvis Bay as part of South West Africa for all purposes (administrative, judicial, electoral, etc.). Thus Walvis Bay never in fact became an integral.part.of _So_uth__Africa_ a.nd_remained_a jpolony^jadministered as part of the mandated territory of South West Africa. By developing Walvis Bay as the most important component of Namibia's infrastructure, a pattern of mutual dependence, upon each - 2 - other, of the territory of South West Africa and Walvis Bay, has irrevocably emerged. The rationale which justified South Africa's treatment of Walvis Bay as an integral part of SouthJWest Africa (Namibia) for over half a century should continue to be relied upon to maintain the de facto integration of Walvis Bay into Namibia thereby main- taining a viable single territory. An attempt by South Africa to detach Walvis Bay from Namibia would result in the disruption ofsocio-economic unity and territorial integrity of Namibia, and would be a breach of contemporary principles of international law governing the granting of_ independence to colonial peoples. The legislation (dating from 1922) by which South Africa systematically integrated Walvis Bay into the mandated territory of South West Africa may be considered as having been entirely consistent with the duty it assumed to administer and develop the mandated territory itself on the basis of the concept of sacred trust. When, after 1945, the concept of sacred trust was extended to include all other colonial territories such as Walvis Bay, the basis for an international obligation upon South Africa to administer and develop the two mutually dependent areas under the concept was even more complete. Accordingly, an attempt by South Africa now to invoke a domestic legislation to revert Walvis Bay to its pre-1922 status would a derogation of its international obligations under the sacred trust and also contrary to public international law. NATIONS Dear Mr. Secreta neral, Upon your request, I have the honour to provide you with the legal opinion on the Status of Bay. This opinion, however, is not in the public domain and was given only to the Commissioner for Namibia, Mr. Ahtasaari. I wish to draw your attention particularly to pages 14-17 (paragraphs 35-42). • I remain at your disposal for further discussion or clarification, if need be. 14 February 1978 ROUTING SLI^|iiiiSg|£FICHE DE TRANSMISSION ,. ^Rooin Nof—No de bureau Extension—-Paste Date FOR ACTION ; POUR SUITE A DONNER FOR APPROVAL POUR APPROBATION FOR SIGNATURE POUR FOR COMMENTS POUR "OBSERVATIONS' y^fflft!ffi||^ MAY WE DISCUSS?, POURRIONS-NOUS EN PARLER3 • YOUR ATTENTION VOTRE ATTENTION AS DISCUSSED COMME CONVENU AS REQUESTED , SUITE :A VOTRE DEMANDE • g: NOTE AND RETURN NOTER ET RETOURNER ^•g^^;^^:^ ' "" '"•" « .
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