OCTOBER 10, 1960(1)
SINCE WE HAVE A HEAVY AGENDA, and while people enjoy some sort of night functions - an Assembly meeting not being one of them - I have no desire to prolong these proceedings.
My colleague and friend, Mr. Louw(2)
- strange as it may seem, we are very friendly - has come for the second time during this session in regard to this question of domestic jurisdiction. It is not necessary for me to reply at length now, because there is a third one coming.
Items 70 and 72 are brought together for this purpose and therefore, we shall deal with them together. India is a sponsor of both these items, and although one refers specifically to peoples of Indian and Pakistani origin and, therefore, is nearer to us in some respects, we regard both items as equally important and turning on the same principle.
The main contention here is that this is intervention in the affairs of the Union Government. I want to say here and now, neither my delegation nor my Government nor the people of India desires any intervention in the affairs of South Africa.
So far as the first item is concerned, South Africa is bound by treaty obligations. This matter goes back to 1860 when Lord Salisbury concluded an agreement with the then Government of South Africa, by which the successor Government is bound. If Mr. Louw pleads that no one else has any business to interfere with this, we would ask him, as we have asked several times before, to go into the history of this matter; in recent times - that is, in the last thirty or forty years - in the Pretoria Agreement, the Cape Town Agreement, the various agreements between Gandhi and Smuts, and what is more, the previous occasions in which South Africa itself has entered into negotiations with us after the beginning of the Organisation. Therefore, so far as that question is concerned, there are obligations which are placed upon states members of the United Nations to observe agreements arrived at and sanctified by the passage of time and, no less, by the circumstance that successive South African statesmen have said that these people who had immigrated to South Africa had largely contributed to its prosperity. Therefore, there is an obligation apart from all agreements not to treat them as different from other subjects.
But over and above all that, the main charge this evening is that the Chairman of the delegation of India, in the General Committee, foolishly invoked Article 1 as against Article 2, paragraph 7. If the delegation has been guilty of folly, it is folly that is shared with 95 per cent of the members of this Assembly. Even if one is foolish, with that large support, perhaps we might gain the day.
Besides, Mr. President, this year you have, in the respectful submission of my delegation, ruled in error - but it is an error that is on my side at the moment - that precedents work in regard to points of order in regard to admissibility of items, and so on. This item has been admitted, I think, ten or twelve times in this Assembly, and it is rather late in the day to argue that it cannot be admitted.
Again, so far as item 70 is concerned, if the argument of the representative of South Africa were to be followed, and the Assembly were to accept it, or if we were to accept it, we would be going against the decisions of the Assembly.
We have been asked by the Assembly to report on the progress of negotiations or conversations with South Africa. At the last session, the Assembly adopted a resolution [1460 (XIV)] asking the two countries to communicate with each other, which we did in April of this year, through the High Commissioner for India in London writing to the High Commissioner for South Africa in London, which is the usual channel of communication since we have no diplomatic representation at Cape Town, and there has not been any reply to that, although there is an acknowledgement, which, I must say, is an improvement on some previous years. Therefore, we have an obligation to report; in a sense, the Assembly has placed this item on the agenda itself by its decision of last year, because any party concerned, not only India and Pakistan, but any party that feels about this matter, can raise it arising from that resolution.
Then, the common aspect of these two items is, taking the representative of South Africa on this very point of domestic jurisdiction, the word "intervene". There is a considerable amount of literature in the United Nations on this subject, including the San Francisco discussion to which Mr. Louw referred. My delegation intends to take up this matter when it comes before the Committee, but for the present it may be said that the authority in regard to international law is, first, the agreements reached; second, any commitments according to the Charter; and third, the authority of reputed scholars. Here the question is, what is intervention? Discussion in the Assembly is not intervention; debate in the Assembly is not intervention; request for negotiations is not intervention; an attempt to get a settlement is not intervention. Intervention means something else in turn for the succeeding chapters of the Charter. Here is the authority, one of the best known scholars of international law, Oppenheim:
"Although it is expressly laid down in the Charter of the United Nations that it does not authorise intervention with regard to matters which are essentially within the domestic jurisdiction of states, the provision in question does not exclude action, short of dictatorial interference, undertaken with the view to implementing the purposes of the Charter."(3)
That is to say, if we were to impose sanctions of a character that interfered with the internal position in South Africa, that would be intervention. To talk about it, to discuss it, to debate, to persuade, to negotiate - is not intervention.
"Thus with regard to the protection of human rights and freedoms - a prominent feature of the Charter - the prohibition does not preclude study, discussion, investigation and recommendation on the part of the various organs of the United Nations."(4)
Oppenheim goes on to say in another part of the book:
"The exclusion of the right of 'intervention` on the part of the United Nations must be interpreted by reference to the accepted technical meaning of that term."(5)
It is well accepted that these terms have to be interpreted in their natural meaning; intervention means intervention. He also goes on to say:
"It excludes intervention conceived as dictatorial, mandatory interference intended to exercise direct pressure upon the state concerned. It does not rule out action by way of discussion, study, enquiry and recommendation falling short of intervention."(6)
Therefore, the argument that we are intervening in the domestic affairs of South Africa, apart from all other considerations, is entirely unfounded on the interpretation that can be given to this word "intervention". As I said, since this matter will come up more than once before the end of this session, I do not intend to go further.
MR. LOUW, THE REPRESENTATIVE OF SOUTH AFRICA, has this year laid stress on another aspect of this question which used to be a common feature of South African argument in 1946-47, in the years when we were hardly an independent nation. That is to say, those who live in glass houses should not throw stones, and so on. In other words, which country is without racial discrimination? I plead guilty. There are racial discrimination practices in my country as well as, I fear, in the countries of most people. But there is one difference; we understand this to be a social crime; we understand this to be against the laws of God and man, and we try to get away from it. On the other hand, South Africa not only legislates as though it has a God-given right, but South Africa prescribes to the world that this is the method by which the world should work. So the oppressed people who recognise their folly, their error, their weaknesses and try to get away from them by legislation, by persuasion, by custom, by practice, are different from those others who would vote in their municipal legislations on the one hand and in the forum of this Assembly would plead to the whole world that not only is "apartheid" good for South Africa, but it is good for the whole world; it is the pattern upon which a multi-racial society should be based. So South Africa is trying to tell the world that this idea of discrimination against people on the grounds of colour, race, and so on is not only good for South Africa, but for everybody else.
Therefore, there is a difference between those people who recognise that they are doing evil or doing wrong or are guilty of some weakness, whatever it may be, which they may have inherited but which they can get over, and others who put this forward as a good social doctrine. There is a difference. And I say that there is no country at all in the world today which would come to this platform and, within the context of municipal legislation, give this place to social discrimination. There are many who probably make exceptions, who fall by the roadside in their attempt to pursue what is demanded of them as well as the law. I am sorry that a distinguished statesman, the Foreign Minister of South Africa, should, in regard to the laws of some other country, speak so lightly of the rights which are embodied in a municipal system.
We come to the next point: that is that any decision in this Assembly, if it is desirous of having some effect on some other country, must, to that extent, intervene in that policy, because we are national sovereign states. There is no authority inside our country where the national authority is submitted to super-national authority. In this world of national sovereign states - where today even the United Nations merely recommends - this is a declaration of public opinion which must be accepted. Therefore, anything that is done in such a way as to create an impact upon national action must be an intervention into the affairs of those countries...
Therefore, I say to the Assembly that there is no need to argue this matter further. The competence of this question has been before this Assembly and there have been long discussions. Its competence has been recognised and the United Nations has taken cognisance of the item time after time. I therefore submit that the protest made by the representative of South Africa will no doubt go into the archives, but it will have no influence upon your minds.
(1) Statement on the inclusion in the agenda of items on
"Treatment of People of Indian and Indo-Pakistan Origin in the Union of South Africa" and "Question of Race Conflict resulting from the Policies of Apartheid of the Government of the Union of South Africa". The title of the first item was revised at this session at the request of Pakistan.
Source: Official Records of the General Assembly, Fifteenth Session, Plenary Meetings, pages 603-605
(2) Eric Louw, Foreign Minister of the Union of South Africa
(3) Oppenheim, L. F. L. International Law; a Treatise. 8th ed. London: Longmans, 1955. Vol. I, p. 320.