OCTOBER 21, 1954(1) (Summary)
THE QUESTION OF INDIANS SETTLED IN THE UNION OF SOUTH AFRICA went back for nearly half a century, and the position of the Indian minority had been the subject of much discussion and numerous agreements between the Government of India and the Union of South Africa, even before those two countries became sovereign states.
Field Marshal Smuts had admittedly argued in 1946 that those agreements were not really treaties. It was sufficient, however, to recall the Cape Town Agreement to realise that it constituted a bilateral instrument. On February 16, 1927, the Governor-General of South Africa had informed his counterpart in India that his ministers had formally approved an agreement reached between the representatives of the Union of South Africa and those of the Government of India, and went on to say that the Agreement, if it were ratified by the Government of India, would be the means of establishing friendly cooperation and goodwill between the two countries. There had, therefore, been an agreement concluded between the two Governments, and its ratification had been sought.
As to the form in which it had been signed, there was no prescribed form for international treaties, as was confirmed in Oppenheim`s International Law, Volume I, Peace, edited by Lauterpacht. It could not, therefore, be alleged that the matter, which had been the subject of an international treaty, fell within the domestic jurisdiction of the Government of the Union of South Africa.
Nevertheless, the South African representative had relied on Article 2, paragraph 7, of the Charter as grounds for stating that the United Nations had no jurisdiction in the matter. That paragraph provided that nothing contained in the Charter should authorise the United Nations to intervene in matters which were essentially in the domestic jurisdiction of any State or should require the Members to submit such matters to settlement, but India was not asking the United Nations to intervene in the Union of South Africa. It was merely asking the United Nations to express an opinion, to make an appeal and to carry out the principles of the Charter. If measures of that nature really amounted to an intervention, Articles 10, 11 and 13 could never have been included in the Charter. Those Articles provided that the General Assembly might discuss any question or matter within the scope of the Charter, consider the general principles of cooperation in the maintenance of international peace and security, initiate studies and make recommendations for the purpose of promoting international co-operation.
The South African representative had stressed the point that the matter was essentially within his Government`s domestic jurisdiction. But what did "essentially" mean in the present case? The problem had to do with a group of people who had been resettled in South Africa in the middle of the last century with the understanding that they would have equal rights with Her Majesty's other subjects. Later, a large number of negotiations and tentative agreements had been concluded, and some agreements even definitely concluded, concerning the fate of those people.
Obviously, any decision of an international nature that might be taken could be given effect only by the South African Government itself. Hence, the General Assembly was in no way challenging South Africa's sovereignty. All it was trying to do was to seek to persuade the South African Government to exercise its sovereignty by taking the right measures. There was no question of forcing it to do so, because Article 2, paragraph 7, of the Charter provided that nothing in the Charter required the Members to submit such matters to settlement under the Charter. Moreover, the General Assembly had never required a Member to do so. It had only offered its good offices and had invoked moral, political and other considerations to draw the South African Government`s attention to the need to take certain measures...
HE ASSURED THE COMMITTEE that his delegation had no intention of launching an acrimonious controversy. It was bringing the question before the General Assembly because the Indian Government had tried other methods and they had proved unsuccessful. India would not reject any negotiation or any effort at conciliation. It would not oppose any agreement. In the circumstances, however, it could hardly accept an agreement outside the United Nations; it believed that it would create a dangerous precedent for the General Assembly to reject a request for assistance from one of its member states.
Mr. du Plessis(2) had referred to various statements by the Indian Prime Minister about relations between India and China and the applicability of those statements to relations between India and the Union of South Africa with regard to the question under consideration. One of the principles involved was that of mutual respect of territorial integrity and national sovereignty.
It was obvious that India applied such principles in its relations with the Union of South Africa. He was prepared solemnly to state that his country scrupulously respected, and would always respect, the territorial integrity of the Union of South Africa and that it was to South Africa's national sovereignty that it appealed to right certain wrongs.
India of course had no desire to interfere in the domestic affairs of the Union of South Africa. In that connexion, it should be recalled that the people of Indian origin in question were not citizens of India. Under Indian legislation most of them were not even eligible for Indian citizenship. In the preliminary negotiations in 1950 the Union of South Africa had asked India and Pakistan to repatriate the people of Indian origin because they were of different ethnic and cultural origin from the white population of the country. Consequently, there could be no ground for accusing India of desiring to interfere in the domestic affairs of the Union of South Africa.
The position was the same with regard to the principle of non-aggression. India had committed no act of aggression against the Union of South Africa and the relations between the two countries were extremely friendly in all other ways. There could be no question of "equality and mutual benefit" to which Mr. Nehru had also referred, so long as one of the countries concerned adopted discriminatory measures against its citizens who had originally belonged to the other.
He wished to make a slight clarification with regard to peaceful coexistence to which Mr. du Plessis had also referred, and which India fervently desired. In speaking of Chinese nationals, the Indian Prime Minister had not expressed his own apprehensions, but had referred to the apprehensions felt by other states because of the presence of large ethnic groups of foreign citizens in their territory. He had said that unless the Chinese groups accepted the nationality of the countries in which they resided, they were likely to be looked upon with suspicion and to be a centre of trouble. In its policy regarding Indian minorities in other countries, India practised what it preached. The Indian Government did not regard the persons of Indian origin in other countries, who had adopted the nationality of their country of residence, as Indian nationals.
Consequently, his delegation's position was in no way inconsistent with the principles stated by Mr. Nehru. India merely considered that no discriminatory measure should be adopted towards persons of Indian origin, all of whom had been born in the Union of South Africa, were citizens of that country, and had contributed to its economic and cultural development.
INDIA HAD BROUGHT THE QUESTION before the General Assembly because its endeavours over half a century to secure equal rights for the people of Indian origin had failed, because the policy of apartheid had reduced them to a position where they had no political rights, and only limited civil rights, and because, under Articles 55 and 56 of the Charter, all Members pledged themselves to take joint and separate action in cooperation with the organisation with a view to the creation of conditions of stability and well-being necessary for peaceful and friendly relations among nations, based on respect for the principle of equal rights of peoples.
In submitting the question to the General Assembly, India had not offended any provision of the Charter or invoked any Article without justification. It had not asked the General Assembly to impose sanctions or to adopt resolutions condemning the Union of South Africa, but had merely sought the Assembly`s good offices for the settlement of the question.
India based its stand in the matter on the Charter, the Universal Declaration of Human Rights, and the principles of natural justice. He was convinced that no delegation - not even the South African delegation in the long run - would challenge those principles..fi Menon-SA.4
(1) On "Treatment of People of Indian Origin in the Union of South Africa".
Source: Official Records of the General Assembly, Ninth Session, Ad Hoc Political Committee, pages 31-33