OCTOBER 27, 1953(1) (Summary)
THE SOUTH AFRICAN REPRESENTATIVE HAD SUGGESTED at the 14th meeting that India was pursuing a vendetta, or exploiting the situation for political purposes, or following a policy of expansion in South Africa. India was not animated by any such motives, but by quite different ones. The position of people of Indian origin in South Africa was a question with which the name of Gandhi was associated, and it was unlikely that the Indian Government would carry on his work in a spirit of violence. He did not wish to take the South African representative to task for the views he had expressed, which had certainly been those of his Government, but only to convince him that whatever errors might have been made, the Indian Government's motives were not open to question.
In view of the South African statement and the points that had been raised about the methods of negotiation and the question of domestic jurisdiction, it became necessary to refer to the history of the problem.
If it could be said that India had brought the problem suddenly before the General Assembly merely in order to take advantage of the existence of that means of bringing it out into the open, there would be some justification for suspecting its motives; but in fact the seeds of the problem had been sown with the introduction of the indentured labour system in 1860, and the problem as such had first arisen twenty years later. It had not been the intention of those ruling India at that time that its nationals should be classed differently from other immigrants to South Africa. Lord Salisbury, the Secretary of State for India in 1875, had said that it was expected that the laws of the colonies - now the Union - would be such that Indian settlers would have the same rights as any other British subjects when they had completed their term of service. Thus equality had even then been in the minds of those responsible for the Government of India, and the change in India`s status had not altered the position.
That had not been an isolated statement; in 1908 the Secretary of State for the Colonies, then responsible for South Africa, had stated that it was extremely hard to justify prohibiting a particular class from engaging in legitimate occupations, and still harder to justify depriving them of their livelihood, whatever the terms of compensation, especially as they had been taken there because of the colony's own needs. Lord Lansdowne, once Viceroy of India, had stated that one of the causes of the Boer War was the treatment of Indians in the Transvaal.
From 1885 onwards legislation had been enacted in the territories concerned inflicting severe hardships on the Indian population. The appearance of Gandhi had been specially important because appeals had been made to India to adopt a more conciliatory attitude in the matter, but India's record would bear examination. From 1906 until the signing of the agreement between Smuts and Gandhi in 1914, the victims of the discriminatory policies had carried on passive resistance but had always remained willing to negotiate, as at present. Their example was bearing fruit at the present time, in that inter-racial conflict in South Africa had not in the main led to violence.
The problem had been the subject of discussion at the Imperial Conferences of 1917, 1921, 1924 and 1926. Thus it had never been exclusively the concern of the South African Government, and indeed the South African Government had not claimed until recently that it was a purely domestic matter. At those conferences, the South African Government had not been concerned to burden the Indian people with disabilities; it had been afraid of unrestricted immigration. India had never been a colonising nation; although its present population was 367 million, there were only 12 million people of Indian origin outside India - the result of a hundred years of emigration; and they were there only because it had suited the purpose of those exploiting the territories concerned.
General Smuts had said at the Imperial Conference of 1917 that once the white population's fear of unrestricted immigration had been allayed, all other problems would become subsidiary. The Indian Government had given its assurance that it did not desire to flood South Africa with fresh immigrants.
The Indian community had accepted the Smuts-Gandhi agreement in the hope that disabilities would gradually disappear when that fear had been removed. Field Marshal Smuts' words had implied the assurance that fresh restrictions would not be imposed and that had been the
Indian Government`s understanding. Unfortunately, subsequent history had not justified that hope.
IT WAS CLEAR THAT FEAR on the part of the white population was the real problem; fear that the backward, poor and ill-educated Indians might pour into the continent and threaten the more civilised, educated and prosperous people. That was why it was vital and necessary to introduce a third party not involved in the conflict into the negotiations.
The Indian method had been peaceful negotiation, and great concessions had been made, such as agreement to measures of repatriation, though not forcible repatriation. The whole history of negotiation with South Africa was one in which the Indian Government had always taken the initiative. After repeated failures, the agreement concluded at the conference held in Cape Town in 1926 had implied the admission that the problem was no longer considered the exclusive concern of one Government. In addition, it showed that the Indian Government`s position rested not only on the clauses in the Charter dealing with human rights but also on solemn covenants entered into between governments.
The representative of South Africa had pointed to the sanctions imposed by India as evidence of the Indian Government`s hostility; they had become unilateral, since South Africa had not retaliated. It was not true, however, that those sanctions had been intended to be punitive. The fact was that the Cape Town agreement of 1927 and the further agreement of 1932 had provided that the position would only be altered by negotiation and consent; but those provisions had been infringed, which had caused disturbances in South Africa. India and the Indian community had again resorted to negotiation, resulting in the Pretoria agreement of 1944 between South Africa and the Indian community, with the Indian Government`s support.(2)
Yet that agreement too had soon been infringed by domestic legislation, causing considerable public feeling. In 1946, after adequate warning, the Indian Government had imposed trade sanctions, which had been described as a "trade war" against South Africa.
As a party to the arrangements which had resulted in Indian emigration to South Africa, the Indian Government had felt a continuing responsibility and had communicated from time to time with the South African Government, which had frequently sought comment and advice from the Indian Government on measures affecting Indians in South Africa. Twice there had been formal round table conferences between the two Governments; in 1926, over the question of segregation when the Cape Town agreement had been concluded, and in 1932, when a joint statement extending the Cape Town agreement had been issued. Then there had been the Pretoria agreement followed by the embargo, imposed not by a sovereign national Government but by a British Government in India against a British Government in South Africa.(3)
HE REPUDIATED THE SUGGESTION that his delegation had made inaccurate statements with reference, for example, to the wives of Indian settlers. The South African representative had asserted that the admission of the wives of Indians into the Union of South Africa had been a concession made unilaterally by the Union Government, which therefore had a right to withdraw it unilaterally.
In fact, the admission of Indian wives was governed by an agreement concluded at an Imperial Conference in 1918, which provided that Indians already domiciled in other Commonwealth countries might bring in their wives and children under age, on condition that only one wife could be admitted and that both she and the children must be certified by the Indian Government as being the legitimate wife or child of an Indian.
The admission of Indian wives thus rested on a formal agreement and was not a unilateral concession. Moreover, Mr. Burton, Minister of Railways and Ports in the South African Government, had stated that the relevant paragraph of the agreement in question represented existing South African law and was not a concession. It would be appreciated that the question was not one of a mere agreement on a quota of wives. The fact that Indians who had married outside the Union were not allowed to bring their wives back with them was morally indefensible.
He had particularly wished to clarify his delegation`s attitude in the matter since a delegation which had supported the Indian position had indicated that that particular controversy was a source of difficulty. The Indian delegation was in a difficult position; if it complained that a law prejudicial to Indian interests was to be passed and requested that it be held in abeyance, it was told that it could not interfere in legislation. If, on the other hand, it complained when the law had already been passed, it was told that it could not interfere in the internal legislation of a country...
THE QUESTION OF DOMESTIC JURISDICTION involved a number of factors, the first of which was the historical background of the dispute. The fact that negotiations had taken place between the Indian and South African Governments over many years and that agreements had been signed between them proved beyond doubt that the question had never been solely one of domestic jurisdiction.
The denial of the Organisation`s competence was based on Article 2, paragraph 7, the operative words of which were "intervene", "matters", and "essentially". A recommendation was not intervention; if it were, no part of the Charter could be implemented since the Organisation was made up of sovereign states whose accession to international covenants must be legalised by municipal legislation. It could not be maintained that intervention by recommendation was ruled out by Article 2, paragraph 7, of the Charter.
The phrase "essentially within the domestic jurisdiction" was of great importance. The essence of a question depended upon its origins, the sequence of events and their consequences. The origins of the case at issue did not concern only one nation but several; the sequence of events was also a matter involving a number of nations, and their consequences could certainly not be said to be a matter of only national concern. Thus any contention that the question as a whole was essentially within domestic jurisdiction rested on a distortion of the meaning of the Charter. It was true that the legislation in question had been initiated nationally, but its effects involved not only the Union of South Africa but other countries, and affected the fundamental criteria of civilisation.
It was an axiom in municipal law that no statute could be judged by considering its clauses out of context. That applied with even more force to international law, in which the provisions of a pact might by their very nature be more vague but nevertheless were an expression of international morality. It was thus not possible to quote one article of the Charter and set it against another. The Charter must be considered as a whole.
Taking the Charter as a whole, it would be seen that there were other provisions which offset the very limited interpretation which the South African delegation had placed on Article 2, paragraph 7; moreover, respect for human rights was a matter dealt with in many articles of the Charter. The Preamble expressly referred to fundamental human rights, the dignity and worth of the human person and the equal rights of men and women and of nations large and small. All those issues were directly involved in the dispute, It must be remembered that the Preamble could be regarded as setting forth the motives which caused the Charter to be written, and its provisions were therefore as valid and as binding as those of the Charter itself.
The Indian delegation also based its case on Article 1O, since it was clear that the matter on which it was asking the General Assembly to make recommendations was within the scope of the Charter. He drew the Committee`s attention to the particular relevance of Article 13, paragraph b, which provided that the General Assembly should initiate studies and make recommendations for the purpose of assisting in the realisation of human rights and fundamental freedoms without distinction as to race, sex, language or religion. In addition, Articles 14, 55, 56, 62 and 76 all enjoined on Member States the observance of human rights, whatever saving clause there might be in Article 2, paragraph 7.
The question of competence had been brought before the General Assembly on several occasions; and the Assembly had each time ruled by a large majority that it was competent. In 1950 the United States representative had positively asserted, at the 46th meeting of the Ad Hoc Political Committee, that the question now before the Committee was within the jurisdiction of the General Assembly.
It had been argued that there were no relevant agreements having the status of treaties between the Governments of India and the Union of South Africa. But the Cape Town agreement, even though it might not have been concluded by two sovereign communities, had been ratified by the legislatures of the two countries and both sides had taken action in implementation of its provisions.
THERE HAD BEEN SUGGESTIONS that the parties concerned might settle their dispute at a round-table conference. The history of the matter would show that between 1926 and 1946 the Indian Government had repeatedly endeavoured to arrive at a settlement round a conference table, but had found the South African Government unwilling to do so. In 1946, the General Assembly had adopted resolution 44(I) urging the parties to confer on the points at issue between them. On that occasion the Union Government had stated that the conference could not be held unless the Indian Government sent back its High Commissioner; that condition had been unacceptable to the Indian Government. However, negotiation would in any event have been difficult while the irritation caused by the legislation complained of was still continuing.
In 1950, the parties had agreed to meet in South Africa to draw up a preliminary agreement about the holding of a conference. A formula had eventually been agreed on by the two sides, but immediately afterwards a certain law had been enacted by the Union Government, thus making it clear that the necessary conditions for a settlement did not exist. The Group Areas Act was a violation of the rights of man; clearly, no negotiations could be successfully concluded if the hostile actions which were at issue were being intensified, and India had been unable to go into conference in such circumstances. Consequently, the joint draft resolution(4) called on the South African Government to refrain from implementing the provisions of the Group Areas Act. His delegation did not wish to dictate what statutes should be enacted in the Union of South Africa, but merely to ensure that if negotiations took place they would be conducted in an atmosphere conducive to success.
The condition imposed by the Union Government that the negotiations must be conducted outside the United Nations was difficult to accept. It was tantamount to suggesting that the provisions of the Charter were such as to militate against the chances of a settlement. As the Haitian representative had pointed out at the l8th meeting, a conference held in such circumstances would be likely to undermine the prestige of the United Nations. The Indian delegation was not prepared to forswear its allegiance to the spirit and principles of the Charter.
With regard to the proposal to refer the question of competence to the International Court of Justice, he failed to see how any decision by the Court could affect the position; and views which it expressed would have little chance of being accepted by the South African Government in view of the history of the advisory opinion of the International Court concerning the international status of South West Africa.(5)
Moreover, it would be wrong to refer every question of jurisdiction to the International Court of Justice; nor was it easy to see who could take the initiative in so doing. If the General Assembly did so it would invalidate its own resolution 395 (V), adopted by a large majority in 1950, and would create a precedent for referring every disputed issue to the Court.(6)
It was not India`s business to refer the matter to the International Court, and the South African Government had not said that it would be willing to do so. He therefore found it difficult to understand the contention that the matter should be referred to the International Court of Justice.
TURNING TO THE JOINT DRAFT RESOLUTION, he agreed that it was largely a recital of past action, but could see nothing wrong in that. There was nothing in the draft resolution to which the committee could object. It requested the continuance of the Good Offices Committee; even if the matter was said to be within the domestic jurisdiction of the South African Government, the exercise of good offices was not ruled out.
He assured the South African representative that his Government desired nothing more than to settle its dispute amicably with the South African Government. The whole problem had the historical background of Mahatma Gandhi's movement in South Africa, and no Indian would subscribe to any other approach.
(1).On "Treatment of People of Indian Origin in the Union of South Africa".
Source: Official Records of the General Assembly, Eighth Session. Ad Hoc Political Committee, pages 99-102
(2). An agreement was reached in April 1944 between the South African Government and leaders of the Natal Indian Congress on control of occupation of dwellings in urban areas. It could not be implemented, however, as the Natal Provincial Council adopted an ordinance contravening the agreement.
(3). The trade embargo was imposed in July 1946 when India was a colony, ruled by a British Viceroy and Governor-General, assisted by an Executive Council. An interim government, headed by Pandit Jawaharlal Nehru, was established on September 1, 1946, and India became independent on August 15, 1947.
(4). The draft resolution - document A/AC.72/L.10/Rev.1 - was sponsored by 17 states, including India.
(5). See International Status of South-West Africa, Advisory Opinion: I.C.J. Reports, 1950, p. 128
(6). The General Assembly, in resolution 395(V) of December 2, 1950, repeated its previous recommendation for a round-table conference of South Africa, India and Pakistan; and further recommended that in the event of failure to hold a conference or reach agreement thereat, a commission of three members be set up to assist the parties in carrying through negotiations.
A Good Offices Commission - composed of Cuba, Syria and Yugoslavia - was subsequently appointed in 1952.