and souid refuse to issue American visas to South West Africans travelling on South Wcan passports.

If South Africa is not the legal government in South West Africa, it should not have the power to issue valid passports to the people of the Territory; since the Council is the lawful administering body, it should have (and exercise) such power. The United States should honor documents issued by the lawful administering power conly. If this policy penalizes white South West Africans who want to travel in the United States, then that is the price they must pay for their silent or active complicity in the illegal South African occupation of South West Africa. It may serve the valuable purpose of making them realize the depth of "outside" disapproval of South African violation of international law.

In practice, recognition of Council documents probably would assist the American government in dealing with refugees from South West Africa. Since the South African government ordinarily refuses to grant passports to nonwhites from the Territory (or South Africa itself), those who wish to leave must do so without papers. It would be helpful for them and for the United States if they could obtain Council passports. White political opponents of the government who are denied passports should also be able to obtain Council passports.

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American officials would no doubt face one practical problem in applying a policy of denying visas to South West Africans travelling on South African passports: viz., defining and recognizing persons who would be ineligible for visas under such a policy. This problem would arise from the fact that South West Africans are South African citizens by Act of Parliament. 70 However, granted the desire to do so, it should not be impossible to work out a sufficient, if possibly somewhat arbitrary, definition of South West African "nationals." Visa applications are so detailed that consular officials should be able to determine from the information supplied by the applicant whether he would qualify for a visa insofar as his status as a South West African was concerned.

(4) The United States should mark all American passports “not valid for travel in Namibia (South West Africa)."

The United States should fulfill its duty not to recognize the legitimacy of the de facto government of South West Africa by prohibiting its citizens from travelling or being in an area where they must accept the authority of the unlawful occupying power. As a practical matter it is not clear what the effect of such a prohibition would be as far as American law is concerned, for it appears that Americans have violated with impunity similar prohibitions applying to Cuba, North Vietnam, etc. Nevertheless, such a prohibition would have at least great moral and psychological effect and would be a token of American intentions vis-a-vis South West Africa.

If the Council for Namibia assumed the power to issue visas for foreign travel in South West Africa, the American State Department should mark all United States passports "not valid for travel in Namibia (South West Africa) without a visa issued by the U.N. Council for Namibia." While, as far as the United States is concerned, the problem of enforcement would be the same as that raised by a blanket prohibition against travel to or in South West Africa, the cautionary effect of such a prohibition

would also be great. That effect could be enhanced by a Council statement that persons violating the prohibition would not be eligible for visas, grants, franchises, etc., issued by a future legitimate Namibian government.

(5) The United States should treat all mail originating in South West Africa and bearing South African postage as if it were unstamped mail.

There may be a practical problem involved in identifying mail posted from the Territory since the once distinctive South West African stamps are no longer used; all mail now bears regular South African stamps. The obstacles involved are not insuperable, however. In any case they do not vitiate the principle that the United States should not recognize the right of South Africa to act for South West Africa in international postal matters.

If the Council for Namibia were to issue Namibian postage stamps, the United States could insist that mail originating in South West Africa bear Namibian, rather than South African, postage. If the United States were a member of the Council and thus supported this position, possibly U.N. member states and the International Postal Union could be persuaded to recognize only Council postage and to treat all mail from South West Africa which did not bear such postage as unstamped mail.

(6) The United States should support the right of the Council for Namibia to' represent South West Africa in any international organization and in any international activity in or to which South Africa has or might have represented South West Africa.

Since, under U.N. supervision, the Council for Namibia has replaced South Africa as the lawful governing authority for South West Africa, it should be recognized as the successor to South Africa in all international organizations and activities in which South West Africa is entitled to be represented. South Africa's present membership, or lack of it, in such organizations or activities should be irrelevent to the right of the Council to take up membership.

Since, however, the situation of the Territory and the Council is unique, this proposal for Council membership on behalf of the Territory is likely to be opposed because there is no precedent for it. The United States should use its prestige to see that this does not bar the Council from affording South West Africa the representation to which it is entitled in international organizations and activities, representation which can no longer be lawfully given by South Africa.

Proposals Relating to Domestic Activities of South Africa

(1) The United States should treat all South African "laws” affecting South West Africa (viz., acts of the South African Parliament; proclamations of the State President, the Prime Minister, other cabinet ministers, or the Administrator of South West Africa; ordinances of the territorial Legislative Assembly; and all sub-legislation) which have come into effect since the adoption of resolution 2145 as invalid insofar as the United States or international law is concerned.

The South African government has been an unlawful occupying power in its former mandate since the termination of its mandate agreement. It follows, therefore, that its laws purporting to affect South West Africa are not valid or binding on either South West Africans or the international community.

Some of the natural consequences of the invalidity of such laws should be: they could not be cited before American courts, administrative officials, or executive officers to justify or support the conduct or objectives of persons appearing before such courts, agencies, or officials; rights granted by such laws or by agencies or officials established by or operating under such laws would not be recognized by American courts, administrative agencies, or officials or, as a result, by banks or other private lending agencies or by auditors and accountants. In particular, rights created by or deriving from such laws should be treated as invalid by the Securities and Exchange Commission in approving prospectuses for security issues by firms claiming land title or other rights under the South African government or its South West African administration.

Conflicting rights obtained from the Council for Namibia under any legislation it might promulgate in connection with the same subject matter should be deemed to supersede rights derived from the invalid South African laws and to permit judicial transfer of property held under such invalid title to the holder of valid title under the Council.

Ambassador Yost's declaration that the American government will not act to protect investments based on rights acquired through the South African government since the adoption of resolution 2145 against the claims of a future lawful government of Namibia has already set basic American policy on at least one aspect of this subject matter. This proposal merely extends the scope of his policy, carries it to its logical conclusion, and suggests how it can be made effective immediately.

(2) American courts should refuse to enforce all judgments of South West African courts and all judgments of South African courts which affect South West Africans, causes of action originating in South West Africa, or property located in South West Africa.

The enforcement of foreign judgments is always a matter of comity and not of right. No American court, as a matter of comity, should enforce a judgment rendered by a court acting as the arm of the unlawful occupying power in an unlawfully occupied territory or by a domestic court of the occupying power when it determines matters related to the unlawfully occupied territory.

(3) American courts should refuse to entertain claims or defenses based on or derived from the law in effect in South West Africa. In particular, this rule should be applied to contracts, including pension and executive compensation contracts between American companies operating in South West Africa and their officers and employees.

The mere fact that a corporation organized in or doing business in South West Africa7 71 may be held to be doing business in an American state and may therefore normally be amenable to suit there should not compel any American court to take jurisdiction of a cause of action based on South West African law. It would constitute a form of recognition of the occupying power in South West Africa to give effect to contracts made or rights claimed under the de facto authority there.

(4) American courts and judicial officers should refuse to honor or to take or order action under letters rogatory, letters of administration, and similar documents

emanating from South West African courts or from South African courts in relation to South West Africans or South West African causes of action or property.

(5) The President should express American displeasure at the continuing South African occupation of South West Africa in every way sanctioned by diplomatic usage.

Such methods include public reference to South Africa as the "unlawful occupying power" vis-a-vis South West Africa; refraining from expression (beyond the minimum phrases required by traditional diplomatic usage) of friendship and goodwill towards the Republic of South Africa or towards its Prime Minister as long as the occupation continues: refusing to meet or to have any contact with South African officials who direct any facet of the occupation government or with territorial officials; permanently discontinuing the (temporarily suspended) visits by American warships to South African (and of course to South West African) ports as long as the occupation continues.72

The methods of expressing American displeasure proposed here do not exceed those which the President has directed towards the present government and Premier of Sweden for the political sin of accepting American army deserters. They certainly do not match some which have been directed towards various Communist and other radical governments and officials from time to time.

(6) The President should continue to prohibit the sale of all arms (including replacement parts) to South Africa as long as it continues to occupy South West 73 Africa.

Although the arms ban was imposed under Assembly resolution 1761 (XVII) (1962) and Security Council resolution 191 (1964) in order to exert pressure on South Africa to change its domestic (racial) policy, it can serve the dual purpose of inducing the government of the Republic to quit the Territory (as American representatives at the U.N. have tacitly admitted).7 It should be so used. It is incredible that any government would supply arms to a country so flagrantly in violation of international law, particularly when the violation challenges the authority of the U.N. itself.

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(7) The President should prohibit any and all joint planning and training (including anti-insurgency training), joint exercises, and/or military cooperation of any sort between American and South African forces as long as South Africa continues to occupy South West Africa. The President should similarly oppose any kind of military cooperation by NATO forces with South Africa under the same circumstances.

Obviously the United States should not engage in any kind of military cooperation with a government which challenges the United Nations in flagrant violation of international law.

The particular emphasis on prohibiting anti-insurgency training reflects the fact that American instructors are rumored to be training Portuguese soldiers in antiinsurgency techniques. The Portuguese have been South Africa's only dependable ally in all matters affecting South West Africa and apartheid. South African troops are alleged to be fighting with the Portuguese in Mozambique, as they are with white Rhodesian troops against African guerrillas. At the very least it is widely believed that the South African and Portuguese governments have a mutual understanding as to joint defense of the Portuguese colonies under certain circumstances.

South West African insurgents have raided their home territory from time to time in attempts to start a war of liberation. The United States should not help an unlawful occupying force against citizens trying to compel it to leave the Territory in compliance with international law.

(8) The President should exert maximum diplomatic pressure to induce in particular the United Kingdom and other Commonwealth countries, France, Italy, West Germany, and Japan not to sell arms to South Africa or to engage in any form of military cooperation with South Africa as long as it continues to occupy South West Africa in violation of U.N. resolutions.

(9) The President and the Secretary of State should make sure that American Foreign Service personnel posted to South Africa are personally sympathetic to the American official position concerning South West Africa, that they have no racist attitudes, and that they are able to make the American position on South West Africa and the reasons therefor known to the South African government and public.

The South African government is not likely to take seriously American strictures against its occupation of South West Africa if American representatives seem to "understand" the South African position all too well or if they reflect in their personal conduct the same racist attitudes which are at the base of South African politics. This applies not only to the ambassador and his senior personnel, but also to lesser officials in technical and clerical positions, including those whose primary responsibilities are to other departments of government (e.g., commercial or military attaches, etc.)

It goes without saying that CIA and other intelligence agents in South (or South West) Africa should not be permitted to work against official American policy vis-a-vis South West Africa simply because in their agency's evaluation such policy carries with it the risk of overthrowing an apparently stable “anti-communist" government and of substituting for it radical nationalists or "worse" in South West Africa or even in South Africa itself.

(10) The government should exert pressure on American lending institutions, on the World Bank, and on similar institutions not to give any financial support, including stand-by credit arrangements, to any South African project or institution in any way connected with South West Africa, or to any purely South African project or institution if the result is to release South African funds for projects affecting South West Africa.

The establishment or strengthening of South African economic, military, or cultural projects or institutions in South West Africa not only increases South Africa's ability to maintain its unlawful presence in the Territory but also its physical and psychological involvement in the continuation of its occupation. Consequently, the United States should avoid any financial support, direct or indirect, of South African projects or institutions in South West Africa. In case of doubt as to the effect of loan or other financial arrangement, the decision should be resolved against the transaction.

(11) The United States should continue its support for the development and extension of special drawing rights ("paper gold") to increase the international money supply and to stabilize international finance.