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The United Nations & Apartheid—Certain Procedural Aspects of the Problem

Published online by Cambridge University Press:  21 May 2009

D. R. Gilmour
D. R. Gilmour
Affiliation:
Lecturer in International Law at theUniversity of Durham
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Extract

Since the very inception of the United Nations the racial policies of the Republic of South Africa have been a constant source of discord and international friction of one kind or another. South Africa's policy towards her coloured population was first brought to the attention of the General Assembly by India which complained that the treatment accorded to the people of Indian origin living in South Africa but who, India admitted, were nevertheless South African citizens, was contrary to the human rights provisions of the Charter and to the Cape Town Agreements concluded between the then Union of South Africa and India in 1927 and 1932. This subject remained before the United Nations and was considered almost annually until the seventeenth session when it was joined to consideration of South Africa's apartheid policy in one composite item. “The question of the race conflict in South Africa resulting from the policies of apartheid of the Government of the Union of South Africa” was first brought to the attention of the United Nations during its seventh session by thirteen states which maintained that by her racial policy South Africa was “creating a dangerous and explosive situation, which constitutes both a threat to international peace and a flagrant violation of the basic principles of human rights and fundamental freedoms which are enshrined in the Charter”.

Type
Articles
Information
Netherlands International Law Review , Volume 16 , Issue 1 , March 1969 , pp. 12 - 37
Copyright
Copyright © T.M.C. Asser Press 1969

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References

1 General Assembly Official Records, 1st session, 2nd part, Joint 1st and 6th Committee, pp. 52–53Google Scholar; Annex 1, Doc. A/149. The Official Records of the General Assembly are hereinafter referred to as “G.A.O.R.” The session will be indicated by Roman numerals, the part of the session in Arabic numerals, in accordance with the practice adopted in the Repertory of Practice of United Nations Organs. For the text of the Cape Town Agreements and other facts relevant to the position of Indians in South Africa see G.A.O.R. (1/2), Joint 1st and 6th Com., Annex 1a, (A/68), pp. 53–81Google Scholar; Annex 1b, (A/167), pp. 81–114; and Annex 1c, (A/167/Add. 1), pp. 114–131.

2 The treatment of people of Indian origin was not discussed at the fourth session; The two cognate matters were joined in a composite item in the request for their inclusion in the agenda of the 17th session of the General Assembly: See G.A.O.R. (XVII), Annexes, Vol. III, a.i. 87Google Scholar, Doc. A/5167 and Add. 1–6.

3 The states which requested the inclusion of this item were: Afghanistan, Burma, Egypt, India, Indonesia, Iran, Iraq, Lebanon, Pakistan, Philippines, Saudi-Arabia, Syria and the Yemen. For the text of the communication see G.A.O.R. (VII), Annexes, Vol. II, a.i. 66, pp. 1–3, Doc. A/2183.Google Scholar

4 See infra, p. 17.

5 This view is not entirely free from doubt. However it has been widely canvassed and acted upon in the United Nations itself in debates when questions of competence have arisen. By the very fact of applying the Charter to any given situation the organ concerned must impliedly interpret it. This power has been impliedly recognized by the International Court of Justice inter alia in its advisory opinion on the Competence of the General Assembly for the Admission of a State to the United Nations 1950Google Scholar, I.C.J. Reports, p. 9; and in its advisory opinion on Certain Expenses of the United Nations 1962, I.C.J. Reports, p. 157.Google Scholar

6 For a discussion of the drafting of the Charter relating to this question see Vallat, , “The Competence of the United Nations General Assembly,” (1959) 97 Recueil des Cours pp. 208–213Google Scholar; for discussion of the various opinions expressed on this point see Goodrich, & Hambro, , The Charter of the United Nations, (London, 1949), p. 547Google Scholar; Goodrich, , The United Nations, (London, 1960), p. 70Google Scholar; Rajan, , United Nations & Domestic Jurisdiction, (London, 1961, 2nd ed.), p. 83Google Scholar; and Kelsen, , The Law of the United Nations, (London, 1950), p. 960.Google Scholar

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9 Motions requesting an advisory opinion were eventually introduced by Sweden, (ibid p. 27); Colombia, (ibid, p. 33); and jointly by Sweden, the United Kingdom and the United States, (ibid, p. 43). This latter draft resolution was later supported by South Africa.

10 Ibid., p. 17.

11 Ibid., p. 24.

12 G.A.O.R., (I/2), Plen., 50th meeting, pp. 1009–1010.Google Scholar

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14 Ibid., 51st meeting, p. 1032.

15 Ibid., 50th meeting, p. 1020.

16 Ibid., p. 1021.

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20 Ibid.

21 Ibid., p. 224; emphasis added.

22 G.A.O.R., (III/2), 1st Com., 263rd meeting, p. 253.Google Scholar

23 Ibid., pp. 246–7.

24 Ibid.

25 Ibid., p. 253.

26 G.A.O.R., (III/2), 1st Com., 268 meeting, p. 321.Google Scholar

27 G.A.O.R., (III/1), Plen., 146th meeting, p. 225.Google Scholar

28 G.A.O.R., (III/2), 1st Com., 263rd meeting, p. 251Google Scholar; Ibid., 268th meeting, p. 312.

29 Ibid., 203rd meeting, pp. 247–248.

30 Ibid., p. 251.

31 Ibid., p. 249.

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34 Ibid., 46th meeting, paras. 63–66.

35 Chile: ibid., paras. 78–80; Iraq: ibid., para. 94.

36 Ibid., paras. 96 & 69.

37 Ibid., paras. 67 & 74.

38 G.A.O.R., (V), Plen., 285th meeting, paras. 24–26.Google Scholar

39 Doc. A/1388, Annex A, para. 21.

40 G.A.O.R., (V), Ad Hoc Pol. Com., 46th meeting, para. 100.Google Scholar

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42 Ibid., para. 70.

43 Ibid., para, 110.

44 Due to certain technicalities and misunderstandings the item was not discussed in the plenary session and the Assembly proceeded directly to the vote. Therefore, in this case, South Africa was unable to raise the question of competence in the General Assembly: see G.A.O.R., (V), Plen., 315th meeting, paras. 3–6.Google Scholar

45 G.A.O.R., (VI), Plen., 341st meeting, para. 37.Google Scholar

46 Ibid., para. 41.

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50 G.A.O.R., (VII), Plen., 381st meeting, para. 9.Google Scholar

51 Ibid., paras. 1–5.

52 Rule 80, now rule 81, states that subject to rule 79 any motion calling for a decision on the competence of the General Assembly to adopt a proposal submitted to it shall be put to the vote before a vote is taken on the proposal in question.

53 G.A.O.R., (VII), Plen., 381st meeting, para. 68Google Scholar; rule 23 of the rules of procedure states that debate on the inclusion of an item when that item has been recommended for inclusion on the agenda of the General Assembly shall be limited to three speakers in favour and three against the inclusion. The President may limit the time to be allowed to the speakers under this rule.

54 G.A.O.R., (VII), Plen., 381st meeting, para. 131.Google Scholar

55 Ibid., para. 136.

56 Ibid., para. 156.

57 Ibid., paras. 141–143.

58 Ibid., para. 150.

59 G.A.O.R., (VII), Ad Hoc Pol. Com., 13th meeting, para. 14.Google Scholar

60 Ibid., 21st meeting, para. 34.

61 G.A.O.R., (VIII), Ad Hoc Pol. Com., 32nd meeting, para, a; Doc. A/AC.72/L.13.Google Scholar

62 Ibid., para. 33.

63 Ibid., 34th meeting, para. 30.

64 Ibid., para. 32.

65 Ibid., para. 33.

66 Ibid., para. 55.

67 Ibid., para. 35, per Pakistan; paras. 40–41 per Syria.

68 See supra, pp. 30–21.Google Scholar

69 See supra, footnote 28.

70 See supra, footnotes 34 and 35.

71 Rule 122 of the rules of procedure states that: “Subject to rule 120, any motion calling for a decision on the competence of the General Assembly or the committee to adopt a proposal submitted to it shall be put to the vote before a vote is taken on the proposal in question.” Rule 81 is to the same effect but deals only with the General Assembly and not its committees.