Curb on Indian immigration to South Africa

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Commission on Human Rights

The UN Charter mentioned human rights and fundamental freedoms seven times.1As they were not defined, the United Nations Preparatory Commission decided at its first session in London in December 1945 that a bill of rights should be drawn up. With the approval of the 1st GA, the Economic and Social Council (ECOSOC) at its first session established an interim Commission on Human Rights (CHR), ‘consisting of a nucleus of 9 members appointed in their individual capacity’, their term of office to expire on 31 March 1947. 2 Its competence included:
(a) Formulation of an international bill of rights;
(b) Formulation of recommendations for an international declaration or convention on such matters as civil liberties;
(c) Protection of minorities;
(d) Prevention of discrimination on grounds of race, sex, language or religion;
(e) Any matters within the field of human rights considered likely to impair the general welfare of friendly relations among nations (a later addition, possibly related to the Assembly’s agenda item on the treatment of Indians in SA).At the first session of the CHR the Assistant Secretary-General for Social Affairs, Henri Laugier, opened the discussions with the controversial comment that GA Res. 44(I) on the treatment of Indians in SA was proof that no violation of human rights could be covered up by the principle of national sovereignty.3 The Charter gave individuals and groups the belief that they had the right of appeal to the UN.SA sent an observer to the meeting. He reported that the CHR was dealing with explosive topics and that some members approached the subject superficially. They were carried away by high-sounding ideals, forgetting to take practical issues into consideration. ‘If not handled correctly and with great judgement, [the CHR’s efforts] may very well result in achieving the very opposite effect for which the United Nations was created’.4

International bill of rights

The UK Foreign Office reported that the drafting committee established by the CHR had debated whether the bill of rights should take the form of a manifesto issued under cover of a GA resolution or whether it should be a convention with binding force. As the two proposals were not mutually exclusive, the drafting committee recommended that both paths be followed.5 It examined several drafts for a bill of rights, amongst which was the text on essential rights that Panama had submitted in San Francisco.6 It also examined a draft prepared by the UK, which argued that the provisions of the bill of rights should be deemed fundamental principles of international law and become part of the national law of each UN member state. As the observance of human rights was of international concern, it should be within the jurisdiction of the UN to discuss any violation. It would also be the duty of each member state to take, within its jurisdiction, all measures and legal dispositions for the enactment and effective respect for the rights and freedoms proclaimed in the bill of rights and to co-operate with other states to that end.7

Views of Professor Lauterpacht

Professor Hersch Lauterpacht wrote from Trinity College, Cambridge, to The Times,London, of 26 July 1947, that the CHR proposed to submit to the GA a declaration of human rights in the form of a ‘manifesto as distinguished from a binding and enforceable legal obligation’, which might be supplemented by more specific conventions. Such a declaration, Lauterpacht believed, was to a large extent a piece of international legislation. ‘Unless the Bill is to be a mere statement of generalities…it must imply some changes, voluntarily consented to, in the law and practice of States.’ Crucial issues included economic and social rights ‘no less compelling than rights of personal freedom and of political liberty and the problem of enforcement’. In so far as the existing provisions of the Charter entailed some measure of legal obligation and enforcement, ‘a mere declaration of principles would be in the nature of a retrogression’. In answer to an enquiry from the SA Department of External Affairs about the author of the letter, the SA High Commission, London, quoted an assistant law adviser at the Foreign Office as saying that Lauterpacht’s intellectual background lay ‘in the logical and somewhat theoretical jurisprudence of the Continent, which Anglo-Saxon lawyers do not always find sympathetic’. His years in England where he was a professor of international law at Cambridge had, however, enabled him to absorb the English way of approaching problems. More than other writers he had ‘built up the Case Law of International Law’. Lauterpacht’s views on international law ‘and particularly Human Rights’ deserved and received considerable respect. Because he based his arguments on actual practice and decided cases his views were saved ‘from becoming too doctrinaire and theoretical’.8 The same source later warned: ‘It is understood that he takes a dangerous and extreme view about the powers of intervention conferred on the United Nations by the Charter on all questions concerning human rights.’

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SA comments

The SA law advisers’ internal comments on two of the drafts examined by the drafting committee provided an indication of the approach to human rights under the Smuts administration. They wrote that that the UK had recognised that part of the text it had submitted, would have to be completed by provisions ‘prohibiting distinctions based on race, sex, language and religion’. This remark was too vague and insufficient to require detailed comment. The laws of the Union, they claimed, did not deprive people of political and civil rights on such grounds but did distinguish between them. If these provisions were to imply ‘absence of discrimination as far as fundamental rights and freedoms are concerned, (they) would not, however, create any conflict with the laws of the Union’.9 Some alterations to the text would be required to make it compatible with SA municipal legislation.

(i) Aim 
(ii) Research procedure 
(iii) Method 
(iv) Framework of thesis 
1.1 International Organization for a post-war world
1.2 Convocation 
1.3 Commonwealth consultations
1.4 Drafting of Charter 
1.4.1 Preamble
1.4.2 Domestic jurisdiction
1.4.3 Relationship between GA and Security Council
1.4.4 Powers of GA
1.4.5 Veto
1.4.6 Human rights
1.4.7 Economic and social issues
1.5 Ratification of Charter
1.5.1 Criticism of Smuts
1.6 Charter provisions in municipal legislation 
1.7 Conclusions
1.7.1 Smuts’s dilemma: human rights and domestic policy
1.7.2 Ratification debate
1.7.3 Effect of ratification
2.1 1st General Assembly
2.1.1 Indian complaint
2.1.2 Racial discrimination and competence
2.1.3 Refusal to seek advisory opinion
2.2 2nd General Assembly 
2.2.1 Prelude
2.2.2 GA fails to agree
2.2.3 Analyses of 2nd GA
2.3 National Party assumes power 
2.4 3rd General Assembly
2.4.1 Prelude
2.4.2 Louw asserts domestic jurisdiction
2.5 Round table conference negotiations
2.6 Group Areas Act
2.7 Calls for mediation 
2.8 Appointment of Good Offices Commission
2.9 Curb on Indian immigration to South Africa 
2.10 Relations with Pakistan harden
2.11 Efforts to resume negotiations fail 
2.12 SA withdraws from 10th General Assembly 
2.13 Token representation 
2.14 South Africa resumes participation
2.15 Indian unemployment in South Africa 
2.16 South Africa leaves Commonwealth
2.17 Conclusions 
2.17.1 Attitudes towards negotiations
2.17.2 Role of ICJ
3.1 Establishment of Commission on Human Rights 
3.2 International bill of rights
3.2.1 Views of Professor Lauterpacht
3.2.2 SA comments
3.2.3 Legal consideration
3.3 Change of government
3.4 3rd General Assembly 
3.4.1 Preparations
3.4.2 Nature of draft declaration
3.4.3 Detailed examination of draft declaration
3.4.4 SA abandons debate
3.4.5 Consideration in Plenary
3.4.6 Comments from SA delegates
3.5 Conclusions
3.5.1 SA bipartisan approach to UDHR
3.5.2 Legal validity of UDHR
3.5.3 SA’s abstention on UDHR
4.1 First draft covenant: South African response 
4.2 Draft divided into two 
4.3 5th General Assembly
4.3.1 SA directive
4.3.2 Debate in Third Committee
4.3.3 SA vote in Plenary
4.3.4 SA comment on GA. Res. 421(V)
4.4 South Africa delegation withdraws 
4.5 South African response to General Assembly actions 
4.6 South African legislation incompatible with covenants
4.7 South Africa abstains on covenants
4.7.1 SA re-examines abstention policy
4.8 Measures of implementation 
4.8.1 First meeting of CHR
4.8.2 Right of petition
4.8.3 Other methods of implementation
4.8.4 Alternative US proposals
4.9 Self-determination
4.9.1 SA opposes self-determination in covenants
4.10 Conclusions 
4.10.1 SA divergence from human rights trends
4.10.2 Officials and government differ
4.10.3 Self-determination in covenants
4.10.4 Effect of SA abstention policy
5.1 UN Yearbook on Human Rights 
5.1.1 SA submission for YHR
5.1.2 Appointment of correspondent
5.1.3 Relations with Secretariat cool
5.2 Sub-Commission on Prevention of Discrimination and Protection of Minorities 
5.2.1 Sub-commission subjected to criticism
5.3 Discrimination in education
5.3.1 Education in SA
5,4 Religious rights and practices 
5.4.1 Country report on SA
5.4.2 Final report
5.5 Political rights 
5.5.1 Draft country report on SA
5.5.2 Review of overall draft study
5.6 Racial and national hatred and religious and racial prejudice
5.6.1 References to SA at 15th GA
5.6.2 Further consideration of manifestations of racial hatred
5.7 Freedom from Arbitrary Arrest, Detention and Exile
5.7.1 Country monograph on SA
5.7.2 SA reviews draft monograph
5.8 ECOSOC surveys forced labour practices
5.8.1 Ad hoc Committee on Forced Labour
5.8.2 Allegations of forced labour in SA
5.8.3 SA response
5.8.4 Consideration at 8th GA
5.8.5 SA supplements its earlier replies at the 9th GA
5.9 Conclusions 
5.9.1 Relations with UN Secretariat
5.9.2 Relations with other human rights organs
5.9.3 SA response to UN surveys
6.1 Introduction 
6.2 Rights and duties of states
6.3 Rights of women and children
6.4 Refugees and right of asylum
6.5 Self-determination and independence
6.6 Conclusions
7.1 Introduction 
7.2 Charges affecting Soviet bloc countries 
7.3 SA and non-self-governing territories 
7.4 Uniting for peace 
7.5 Conclusions
8.1 Apartheid first inscribed on General Assembly agenda 
8.2 South Africa rejects UNCORS 
8.3 First UNCORS report 
8.4 Malan explains apartheid 
8.5 Second UNCORS report 
8.6 Third UNCORS report 
8.7 General Assembly debates apartheid in South Africa’s absence
8.8 SA loses ground 
8.9 Louw explains apartheid to 14th General Assembly 
8.10 African influence at the United Nations 
8.11 Conclusions 
9.1 South Africa leaves Commonwealth 
9.2 Sharpeville 
9.3 Meetings with Secretary-General
9.4 Conclusions
10.1 General Debate 
10.2 1955 – a year of change 
10.3 Token representation 
10.4 Louw attacks human rights records of other states
10.5 South African officials call for constructive approach 
10.6 Conclusions
11.1 South Africa and interpretation of Charter 
11.2 Relations with United Nations 
11.3 South Africa and human rights law 
11.4 Envoi 


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