193 Australian Delegation, United Nations, to Department of External Affairs

Cablegram UN610 NEW YORK, 1 November 1946, 11.39 p.m.

IMMEDIATE SECRET

Assembly 79.

Indians in South Africa.

1. Reference to Assembly 40 [1] and paragraph 6 of Assembly 66 [2] Smuts had lodged with the Secretariat a statement which he proposed to make when report of general committee on agenda came before Assembly.

Text will probably be used in later debates if required. The following is summary.

2. Statement takes preliminary objection (based upon Article 2(7) of the Charter [1]) to consideration by Assembly of Indian issues.

On merits of the case, Smuts remarks only that Indian letter contains grave exaggerations and misstatements of the fact, and that South Africa is confident of being able to satisfy the Assembly if required to do so that the situation of Indians in South Africa does not call for action by the United Nations-indeed that lot of Indians in South Africa is far better than that of similar classes in India itself.

3. Smuts submits that matters raised b the Indian Government are purely domestic matters of essentially internal and local concern, involving the law and administration not only of the Union but also of provinces and even municipalities, as applied not to aliens but to Indians of whom at least eighty per cent and probably many more are Union nationals.

4. Smuts therefore urges that the real issue is whether the Assembly will assume jurisdiction to enquire into the matter in which a national or racial minority of foreign origin is affected by administration of purely internal and local matters by the State concerned. The way in which this issue is solved will have repercussions on the position in the organisation of all members great or small. Indian problem in South Africa has continually been exploited from India as a political weapon to further India's political aims. Foreign propaganda in alleged minority interests is one of the most potent weapons in armoury of international diplomacy. South Africa is not only country with an unfortunate minority diplomacy problem. To decide this issue in favour of Assembly's jurisdiction will imperil the whole future of the Organisation.

5. After emphasising the broad rule laid down by Article 2(7) of the Charter, Smuts states that three exceptions to it are generally recognised- (I) Application of enforcement measures under Chapter VII (II) Extreme cases of large scale massacres or active persecution of national minorities (III) Treaty obligations.

6. Enforcement measures under Chapter VII Smuts explains in detail along lines of the Minister's San Francisco paper. [4]

7. Dealing with (III) Smuts disposes of what he terms 'the so called Cape Town agreement' of 1927 [5] by contending that it was in no sense intended to give rise to treaty obligations, but was understood to be a 'gentleman's agreement', which merely formulated mutually acceptable policies, to be carried out voluntarily in friendly co-operation towards the solution of a problem essentially within the domestic domain of the Union, but in which the Indian Government also claimed an interest.

8. Smuts remarks that Indian Government does not even suggest that Indian situation in South Africa falls within second category of 'extreme' cases. He rejects also suggestion that references in Charter to human rights are sufficient to take Indian question out of Article 2(7). His contention is that until the Organisation has taken action under Article 55 to define the measure of protection to be accorded to human rights, the Charter imposes no specific obligations upon individual members. To entertain under present circumstances allegations of infringement of undefined minority rights would be to set a precedent which could be exploited on unforseeable future occasions.

9. Smuts repudiates Indian contention that a recommendation by Assembly would not be an 'intervention' within the meaning of Article 2(7), but does not deal with question whether even discussion without recommendation would be 'intervention'.

10. Smuts concludes by urging advisability of seeking advisory opinion from the International Court on the question whether under Article 2(7) of Charter, the Assembly can proceed to consideration of Indian complaint. Article 65 of Statute of Court requires submission to the Court of the exact written statement of the question for opinion together with relevant documents. South African Delegation thinks that a substantially agreed statement of facts can be put forward but that under Articles 68 and 50 Court could itself direct an enquiry into any further facts required.

11. British delegation will not take sides on merits of matter, and is prepared to support the motion for reference to International Court as the only means in sight of avoiding discussion of merits in present Assembly. Prospects of support for this move however are not clear.

12. It seems likely that the Assembly in present temper would, by a large majority, reject South African contention that Article 2(7) precludes Assembly from entertaining Indian complaint. The reaction against giving a wide scope to 'domestic jurisdiction' seems fairly general.

13. United States Delegation is we understand unduly embarrassed on the whole issue and may support move for advisory opinion as calculated to give time during which parties might be brought together.

14. Canada is also embarrassed by the existence of Indian problem in British Columbia and is likely to abstain from speaking and voting.

15. On merits South African Government strongly contends that 1946 legislation is fully consistent with Cape Town agreement. In view of intense nationalist criticism of 1946 Act we understand Smuts feels concessions impossible especially in view of the impending elections. In particular he would find it politically impossible to accept investigation by a United Nations Committee of enquiry.

16. The Indian Government has merely asked that the position be considered by the Assembly and has not proposed any specific action. The Indian Delegation is aware that a South African Nationalist Government would deal more harshly than Smuts with Indian minority and therefore would probably not desire to press matters too far at present. But they have nothing to lose by discussion in the Assembly and, like Smuts, would not take the initiative towards direct negotiations.

17. The only clear solution seems to us direct negotiations between parties leading eventually to some concession.

18. We understand our instructions are not to support contention that the Assembly is barred by Article 2(7) from discussing the matter, but would appreciate urgent guidance as to our action on both motion for advisory opinion of the Court and generally as to the intervention in discussion either on domestic jurisdiction point or on merits.

19. In view of embarrassing British Commonwealth relationships which arise on either side we would propose, subject to further instructions, not to discuss the legal effect of the domestic jurisdiction clause unless Australian action at San Francisco and in regard to Spain is directly drawn into debate and to abstain from voting on request for advisory opinion unless both parties support it. If Assembly does decide to discuss merits we could perhaps express general sympathy with Indian concern in treatment of Indians in other countries (which we are informed is all that Indian Delegation really expects) and in view of complete divergence as to the facts disclosed by Indian letter on one hand and South African statements on the other express hope that parties would be willing to reopen direct discussions.

20. It is likely that joint meetings of committees 1 and 6 may not be arranged at early stage thus leaving time for possible direct negotiations.

1 This cablegram of 25 October from the Australian delegation at the United Nations reported that, despite claims of domestic jurisdiction by South Africa, the general (agenda) committee had opted to leave it to the General Assembly in plenary session to decide how to deal with an Indian request of 12 June that the Assembly consider the treatment of Indians in South Africa.

2 Makin reported from the United Nations on 31 October that, with South African concurrence, the Indian submission bad been referred by the General Assembly to a joint meeting of its first (political) and sixth (legal) committees.

3 Article 2(7) of the U.N. Charter bars U.N. intervention in matters 'essentially within the domestic jurisdiction' of any state except in the context of enforcement measures relating to threats to peace.

4 This is probably a reference to Evatt's fear that Australian immigration policy, a matter of domestic jurisdiction, easily could be compromised if a foreign state simply threatened to use force to effect its change, thereby inviting U.N. intervention.

5 South African and Indian delegates meeting at Capetown in 1926- 27 concluded an agreement dealing with the treatment of Indians in South Africa and, for those who chose repatriation, India. For a short description and analysis of the agreement, see, for example, W. K. Hancock, Survey of British Commonwealth Affairs, vol. 1, Problems of Nationality 1918-1936, London, 1937, pp. 206-9.

[AA:A1838/2, 852/10/2, i]