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

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


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

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

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

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

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]
Last Updated: 11 September 2013
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