OCTOBER 28, 1953(1) (Summary)
Mr. Krishna MENON (India) felt compelled to reply to the South African representative, not because he had been provoked by his allegations or because he wished to indulge in recrimination, but rather in order to emphasise that the sole desire of his Government and of the Pakistan Government, a desire reflected in the remarks of most members of the Committee, was to seek a settlement of the issue in a propitious atmosphere.
He had referred to the iniquitous treatment of people of Indian origin in the Transvaal in the last century because that had been the beginning of the discriminatory policy at present being directed against South African nationals of Asian stock. Act No. 3 of 1885 of the Transvaal had been one of the early expressions of that policy and had called forth a protest from the British Government of the time.
His allusion to the trade war between India and the Union had been intended to place in its proper context the sanctions imposed by India, for which it took full responsibility. He had made the point that the trade war had been initiated by a British Government as a mild protest against South Africa, which was subjecting people of Indian origin to great indignities in violation of agreements. It had not been prompted by any spirit of vindictiveness.
As for the apprehensions of the European population in South Africa, he would point out that the whole problem arose out of racial fears. Field Marshal Smuts had conceded that fact, and it had been further borne out by the statements of other responsible statesmen and members of the Government of South Africa, which he had been reluctant to quote lest their words should embitter the debate. The Europeans had been called upon by those spokesmen to defend themselves against Indian expansion, to preserve the Union as a white man`s country and outpost of human civilisation, which would be impossible if non-Europeans were granted equal political and social rights. The Prime Minister, Dr. Malan himself, had stated that given equal opportunities the non-European would throw out the white, which, he had added, was what had happened in India, with the results that were known to all. Various responsible church officials had described the Indian community as unassimilable, and had pleaded that it be pushed back to the bush and prevented from intruding in church areas. On the other hand, Field Marshal Smuts, discounting the danger of unrestricted immigration of Indians into the Union, had emphasised that most of the people of Indian origin had been in South Africa for the best part of a century, or had been born there and knew no other home. While he (Mr. Menon) was not holding the South African Government responsible for the statements of individuals, he felt that their views should be noted as part of the background of the problem.
With respect to the repatriation issue at the conference of 1932, he stressed that the word "repatriation" was in fact a misnomer; as the people concerned were South African nationals it would be more accurate to speak of their deportation by consent. Dr. Malan, who had been Minister of the Interior at the time, had pointed out that the failure of the Cape Town agreement on repatriation had not been due to the laxity of the Indian Government; that it had done all that could be expected in the face of difficulties beyond its control; and he had given warning that "repatriation" would be increasingly difficult as time went on. Viewed in the light of the existing situation, with the majority of people of Indian origin settled permanently in South Africa as Union nationals, his warning had been prophetic.
He had not spoken of South Africa's "intransigence", although that attitude could be inferred from the facts, which were that both India and Pakistan had been prepared to sit down at a conference table, and had put forward items for its agenda, but South Africa had suggested that they discuss only the question of "repatriation". India and Pakistan had been ready to proceed on the basis of the Cape Town formula, provided existing circumstances remained unchanged and no further obstacles were placed by the Union Government in the way of creating a climate conducive to fruitful negotiation. Neither of the Asian countries had laid down conditions. But if they had entered into negotiation while South Africa displayed an attitude of hostility and repeated legislation of the type of the Group Areas Act, would the results of the conference have been accepted by the local population? That had been the primary consideration of the Indian and Pakistan Governments.
HE HAD IN NO WAY MEANT TO ASSERT that India and Pakistan enjoyed a special authority vis a vis people of Indian origin in the Union; that would patently be an infringement of the Union Government's sovereignty over its nationals. What he had said was that the South African Government had never considered that the problem of the treatment of people of Indian origin could be resolved without reference to any other party. On the contrary, the Union had invited India and Pakistan to assist in seeking a solution and it was the basis for such a solution which had formed the subject of negotiations. Even a recent statement of Dr. Malan had indicated that South Africa recognised that the problem required discussion with other parties.
Accordingly, the joint draft resolution(2) was not intended as intervention in the domestic affairs of South Africa; it merely suggested that the United Nations might serve as a catalytic agent to bring about the much-desired negotiations for a settlement by drawing attention to the principles of the Charter. It neither demanded nor imposed legislation upon the Union Government, for such action would be a violation of sovereignty. But just as India could not demand the repeal of South African laws, so it was unreasonable for the Union to persist in further aggravating the situation by enacting new repressive legislation. India was prepared to negotiate either if the proper climate were created or, if not, if some other means could be found, some assistance, which would permit negotiations to be launched with a chance of success.
With regard to the question of the wives and children of South African nationals of Indian origin, in quoting Mr. Burton's remarks about the Imperial Conference, he had not meant to imply that the reciprocity resolution had been imposed by the Conference, and was a decision binding on the Union Government. He had merely intended to refute the allegation that the reciprocity agreement constituted a concession made unilaterally by the Union. That agreement, which still formed the basis of relations between India and South Africa, was one which the Union spokesman had said involved no concession.
The proportion of men and women in the Indian community in 1917, a point referred to by the Union representative, was immaterial. The important point was that Union nationals of Indian origin, if they had married outside the Union, were deprived of a normal family life in order to prevent any increase in the size of the Indian community. That policy was a violation of human rights and of all standards of civilised living. The Union Government`s reply was that the wives and children could enter the country as immigrants. But the wives of South African citizens were not immigrants; they were so considered on the premise that all people of Indian origin were immigrants who could not be assimilated into South African life and should be driven back into the bush. Moreover, the immigration laws were discriminatory and were hardly favourable to people of Indian origin. The disabilities imposed on people of Indian origin in the Union were contrary to the spirit of the United Nations Charter and incompatible with the reciprocity resolution.
TURNING TO THE CAPE TOWN AGREEMENT, he said that the Indian Government`s position had always been that the agreement was an international treaty, though it had not been registered with the League of Nations, such registration not having been the practice among members of the Commonwealth. The agreement was a solemn undertaking which India was prepared to honour and asked the Union Government to honour. If it was broken unilaterally, India could rightfully protest against that action to the United Nations, as it could if there was a breach of any treaty. Nevertheless, that was not the basis of the joint draft resolution; India had no intention of condemning the Union Government.
As for the question of domestic jurisdiction, a South African statesman had said in connexion with the agreement of 1927 that no less a person than Dr. Malan himself had tolerated India's interference in its domestic affairs on that occasion, because India continued to bear some responsibility for the fate of people of Indian origin in South Africa. When domestic legislation impaired an agreement, the legislation was to that extent ultra vires. On the other hand, that did not entitle the United Nations to stop such legislation. But when laws infringed the Charter, it was inadmissible for the government which had promulgated them to take refuge in the plea of domestic jurisdiction. Legislation had been suspended in the past; during negotiations for an agreement adjustments had been made to create conditions conducive to facilitating a settlement.
Clarifying his remarks about an advisory opinion of the International Court, he said that his observations had been meant to refer to the present position: South Africa had not asked for such an opinion at the present session. It had done so in 1946. Moreover, the South African representative`s assertion that no government would accept the Court`s advisory opinion strengthened the Indian view that the Union would accept an opinion only if it were favourable to South Africa; and South Africa's reaction to the Court`s opinion on the international status of South West Africa bore out that assumption.(3)
Moreover, there was no reason for referring the question to the Court. Such a course would be logical and practical if both parties entertained doubts - and India had no doubt of the Assembly`s competence - or if both parties agreed beforehand to abide by the Court`s verdict. Furthermore, the Assembly did not want to refer the issue to the Court.
India was not asking the United Nations to intervene in any manner except to provide the good offices which might create the circumstances favourable to a solution. It appealed to the South African Government to trust in India`s good faith. The intention of the draft resolution was not to castigate the Union Government, or to pursue a vendetta, or to dictate South Africa`s legislation or course of action, but to achieve a solution of the problem.(4)
(1) Statement in reply to the representative of South Africa.
Source: Ibid., pages 105-107
(2) A draft resolution, sponsored by 17 states, had been presented to the Committee.
(3).The International Court of Justice, in an advisory opinion in 1950, held that South Africa was bound to submit to the supervision and control of the United Nations General Assembly with respect to its mandate over South West Africa (now Namibia). The South African Government rejected the opinion and continued to oppose any form of United Nations supervision.
(4) On November 11, 1953, the General Assembly adopted resolution 719 (VIII), sponsored by 17 states, expressing regret at actions by the South African Government which were "not in keeping with its obligations and responsibilities under the Charter of the United Nations"; continuing the Good Offices Commission established in 1952 to assist in negotiations between the South African Government and the Governments of India and Pakistan; and again calling upon South Africa to refrain from implementing the provisions of the Group Areas Act. The vote was 42 in favour and 17 abstentions, with South Africa alone voting against.