Volume #15 - 199.|
ISSUES BEFORE THE UNITED NATIONS
TREATMENT OF INDIANS IN SOUTH AFRICA
Memorandum from Commonwealth Division|
to Deputy Under-Secretary of State for External Affairs
March 23rd, 1949|
SOUTH AFRICA AND THE UNTED NATIONS: CANADIAN POLICY|
1. In your memorandum of February 3 you suggested that a thorough study should be prepared on what Canadian national interests are served by Canada giving even passive support to South Africa at the United Nations in the debates and votes on South West Africa and the Treatment of Indians in South Africa. You suggested further a re-examination of the Canadian position in the light of the primary objective of present Canadian policy - `the creation of an overwhelming preponderance of military, economic and moral force over the Soviet Union."
1(a) South Africa is, admittedly, a handicap to the western world in the struggle of moral supremacy over Communism. It might be a political liability if the native peoples of Central and South Africa were politically conscious, but, fortunately perhaps, they are probably less politically conscious than they were when tribal organization was still intact. The dispute between India and South Africa is also a source of embarrassment to Commonwealth countries and may serve to weaken the link between India and the West, but the Govemments of South Africa and India are at least on some common ground in their opposition to Communism.
1(b) Should the "cold war" turn to a "shooting war", it would be imperative to have South Africa as an ally since there are no alternative areas for bases on the Cape route, which would likely become of first importance in any war involving the Mediterranean theatre. It seems very uncertain whether the Mediterranean route could be kept open in the event of a general conflict; in which case the facilities of the South African ports would be vital. A neutral South Africa in such an event would be even more of a handicap than a neutral Ireland, It would thus seem imperative to retain South Africa as an active member of the western world.
1(c) There would appear to be no possibility at the present time of inducing South Africa by external pressure to adopt more liberal policies with respect to the native or Indian peoples, and there would appear to be little doubt that the reluctance of the Smuts Government to adopt more repressive measures against Indians and natives was a major factor in its defeat last spring. In the present temper of South Africa no Government with liberal views on native or Indian questions could hope to survive. Under the conditions external pressure might well drive South Africa into a policy of isolationism, which might involve any or all of: withdrawal from the United Nations, withdrawal from the Commonwealth, and a declared policy of neutrality in any future war.
1(d) It is felt that under these circumstances there should be no major change in Canadian policy in the United Nations Assembly with respect to either the status of Indians or the future of South West Africa.
2. A summary of the course of these issues since the First Assembly, including an account of Canadian policy, follows:
3. The two issues have both been on the Agenda for the first three Sessions of the General Assembly. The question whether South West Africa should be placed under the trusteeship system has been dealt with on three occasions with South Africa being urged or requested each time to submit a draft trusteeship agreement. The question of the treatment of the Indians was dealt with at the first two Sessions and is on the Agenda for the adjourned Third Session which re-opens in New York on April 5. Both issues are hardy perennials for which no solution is in sight, and India may be expected to continue to drag South Africa before the international forum on them.
Treatment of Indians in South Africa
4. On this question at the first two Sessions, we took a cautious attitude and supported the proposal of South Africa, which was not adopted, to have the preliminary question of jurisdiction submitted to the International Court for an advisory opinion. At the Second Session the Canadian Delegate stated that Canada's principal concern was to see a friendly settlement of the dispute between the two parties. He said that the Assembly Resolution should not contain a judgment against either party since the facts and the law in dispute had not been established by an impartial tribunal. As a result, Canada could not support the Indian Resolution which contained such a judgment against South Africa. It did, however, support another Resolution which expressed the wish that "the parties should continue their efforts with a view to reaching an agreement directly settling their dispute, and that, should they fail to reach such an agreement, they should submit the dispute to the International Court". At the Second Session no Resolution obtained a two-thirds majority and, therefore, no action was taken.
5. As the Canadian representatives have consistently stated, when this question has been under consideration, it involves an important legal point, namely whether it can be legitimately contended that the treatment of Indians is a matter which comes "essentially within the domestic jurisdiction" of South Africa. Somewhere between eighty-five and ninety per cent of the Indians in South Africa were born there and, therefore, are South African nationals. Only the small balance could be regarded as Indian nationals and therefore a ground for Indian intervention through an international body to protect the rights of her citizens. As opposed to this argument, however, it must be recognized as stated in Article 1 of the Charter that one of the purposes of the United Nations is to promote and encourage respect for human rights and for fundamental freedoms. More recently the Assembly has adopted a Universal Declaration of Human Rights. Furthennore, Article 10 of the Charter states that the General Assembly can discuss any question within the scope of the Charter and Article 14 provides that "the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter, setting forth the Purposes and the Principles of the United Nations." Until this legal question of the nature and extent of domestic jurisdiction, in relation to other provisions of the Charter, is determined, I think we should hesitate before joining in any forthright condemnation of South Africa. It would be difficult to improve on the statement of Mr. St. Laurent made on November 25, 1946 advocating that the mixed questions of fact and law involved in India's complaints against South Africa should be submitted to the International Court.
6. Apart from this legal question, it is very difficult to see any genuine solution to the Indian problem in South Africa. All governments in South Africa have pursued a policy of white supremacy. The facts of racial discrimination and the existence of the colour bar in its many forms cannot be denied. Some governments have been more prepared than others to make concessions to non-European elements but no South African Government is prepared to go the whole length of advocating and practising complete racial equality, which presumably would be the only complete solution of the problem. The most disturbing thing is that the Malan Government is so clearly moving in what can only be regarded as the wrong direction, namely the intensification of segregation and discrimination of many kinds. To advocate racial equality in South Africa at the present time is, of course, to invite political suicide. The social and economic consequence would, of course, be very great of any sudden change to equality among all population groups.
7. The Malan Government advocates "repatriation" as the final solution of the Indian question. This appears to us to be a fantastically unrealistic policy. India clearly would not be prepared to take back the Indians. They now number some 285,000 and have a very high birth rate. Anything in the nature of voluntary repatriation, or at least expatriation from South Africa is out of the question. The Indian community in South Africa has made such social and economic advances that it quite clearly has no desire to go elsewhere.
8. Up to the present time the Indian problem in South Africa has at the United Nations been considered only in terms of the discrimination and restrictions practised against it by the white population of South Africa. The race riots in Durban last January between the Indians and African natives has, however, reminded us that there is some clash of interests between these two groups. There seems to be little doubt that the Africans are exploited by Indian traders and landlords. It might be well to give consideration to the long-term interests of the Africans themselves in this question. It is, I think, arguable that the African natives would be even worse off than they are now if the Indians were the dominant element in South Africa. The African grievances against the Indians are evident at many points on the east coast of Africa, notably in Kenya.
9. The existence of this dispute between two members of the Commonwealth is, of course, a source of embarrassment and difficulty to all Commonwealth countries. It is to be hoped that we will not be called upon to make a choice between keeping one or other of them in the Commonwealth, on the basis of the party which we support in this dispute. The governments of both countries at present are uncertain as to the value of continuing the Commonwealth connection. It seems clear that the South African Government, if it had a sufficient majority would move for the creation of a separate republic, probably on authoritarian lines. The Government of India, while it apparently wants to retain some loose form of association with the Commonwealth, is also endeavouring to pursue a policy of neutrality between the Western Group and the Soviet Bloc. In any event, we may well find that before very long both countries have removed themselves from the Commonwealth group, quite regardless of the policy we support in the present dispute.
10. It is not thought that there should be any fundamental alteration in the attitude we have so far taken on this question. At the request of the United Nations Division we have made some revisions in the Commentary prepared last September. It is suggested that some paragraphs, along the lines of the attached, should be added bringing the story up to date, but it is not proposed to suggest any changes in the final paragraphs in which consideration is given to the Canadian attitude at the forthcoming meetings of the General Assembly.
11. I think we should continue to advocate that the question of jurisdiction should be submitted to the International Court. At the same time we should, I think, avoid in any way any suggestion that we condone or approve the racial policies of the South African Government, particularly of the Malan Government which is so clearly moving in the wrong direction in terms of present world trends in human relations. Possibly the concluding paragraphs of the Commentary should be strengthened by pointing out that, in view of our adherence to the Universal Declaration of Human Rights, etc., our representatives should in no way appear to be justifying or excusing the discriminatory practices of the Europeans in South Africa.
12. It is not thought that Canadian intervention in this question could be helpful. It would seem both useless and harmful to approach the present Government of South Africa with a view to having it modify its policy towards the Indians. Both our High Commissioner in South Africa and our Permanent Delegate in New York have recently stated that they do not think that any approach on our part would serve a useful purpose. General McNaughton has observed that such an approach might be favourably considered only if both governments were to invite other Commonwealth Governments to intervene, a situation which seems most unlikely to arise. Possibly there is some hope that in due course the two countries will negotiate directly with a view to reaching some workable understanding. It is hard to conceive, however. that this would be any fundamental solution of the problem. In fact, in some ways the problem becomes more intractable as the Indian community in South Africa advances further educationally and economically.
South West Africa and the Trusteeship Systent
13. At three Sessions of the General Assembly resolutions have been adopted requesting and urging South Africa to place the territory of South West Africa under the trusteeship system provided for in the Charter. Canada associated itself with the first invitation extended to the Union Government in 1946 but it voted against the second invitation in 1947 because it seemed to imply that South Africa had refused to fulfil a definite obligation and because the imposition of a time limit for submitting a draft trusteeship agreement would do nothing to help change public opinion in South Africa. At the Third Session of the Assembly the Canadian Delegation abstained from voting as it did not appear logical to support a Resolution maintaining the recommendation of the previous year which the Canadian Delegation had voted against at that time.
14. Canada has taken the position that the provisions of the Charter did not in its opinion necessarily imply a legal obligation for South Africa to submit a draft trusteeship agreement for South West Africa. At the same time we have expressed the hope that such a trusteeship agreement would be proposed as it was clearly contemplated that territories formerly administered under the League Mandate system should be brought under the trusteeship system. At the Second Session the Canadian Delegate expressed regret that the South African Government had not seen fit yet to accept the invitation of the United Nations, and expressed the hope that South Africa might reverse its previous decision. Our representatives took no part in the debate at the Third Session.
15. It would appear that South Africa has a strong legal argument in her refusal to put South West Africa under the trusteeship system. She holds South West Africa as a C-class Mandate under the League Covenant which gives her the right to administer it "as an integral part" of the Union. While there may be some argument where the sovereignty over South West Africa devolved with the demise of the League, it still seems that South Africa is under no obligation under the terms of the Charter to place South West Africa under trusteeship. I think we might well continue to support any move to have this matter referred to the International Court for an advisory opinion.
16. At the same time I think it is quite evident that South Africa has a moral obligation to make use of the trusteeship system. It seems to have been the intention when the Charter was drawn up to have all mandated territories brought under the new trusteeship system. Furthermore the General Assembly on three occasions has made a definite request to South Africa, with which it has refused to comply.
17. On South Africa's side it must be admitted that there is the special factor that South West Africa is contiguous territory to South Africa itself, and that South Africa has vital strategic interests in retaining control of it. 18. The present South African Government is taking a defiant attitude, calculated to destroy whatever sympathy exists for its case elsewhere. Legislation has been passed quite recently providing for the representation of South West Africa by six members in the House of Assembly and four Senators. The South African authorities claim that this is a case of "integration" and not "incorporation", though it is difficult to see the distinction. The white population of South West Africa will be grossly over-represented in the Union Parliament under this scheme. There is reason to believe that the change is being made to increase the strength of the Nationalist Party. At the same time South West Africa is being left in a privileged position in regard to taxation and will not be financially integrated with the Union.
19. The Smuts Government agreed on a voluntary basis to submit annual reports on the administration of South West Africa for examination by the Trusteeship Council. Recently, however, the Malan Government has declared that it will not submit further reports. This is another instance of open defiance of the wishes of the General Assembly. When announcing the decision [to] send no more reports, Mr. Louw said that it remained the duty of South Africa to administer the territory in the spirit of the original mandate and according to the principle of trusteeship.
20. While I think we should continue to support South Africa's legal case, I do not think we need give her comfort or support in any other way. It would have been desirable to have brought South West Africa under the trusteeship scheme and we should continue to express this opinion. At the same time it must be realized that South Africa has successfully defied the wished of the General Assembly and presumably will continue to do so.