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Community Interest in the Emergence of New States: The Problem of Recognition

Published online by Cambridge University Press:  27 February 2017

Herbert W. Briggs
Herbert W. Briggs*
Affiliation:
Cornell University
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Type
Sixth Session
Information
Proceedings of the American Society of International Law at its annual meeting (1921-1969) , Volume 44 , 1950 , pp. 169 - 181
Copyright
Copyright © American Society of International Law 1950

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References

1 United Nations, Security Council, Official Records, 3rd year, No. 98, 340th meeting, July 27, 1948, p. 30. Statement of Mr. Aubrey Eban.

2 British and Foreign State Papers, Vol. X V I I , pp. 191 ff. and passim.

3 Idem, Vol. XVIII , pp. 645, 723 ff.

4 Idem, Vol. L XIX , pp. 758, 761, 763 ff., 862 ff. On the concerted recognition of Rumania by Great Britain, France, and Germany on Feb. 20, 1880, see idem, Vol. L XXI , pp. 1136, 1186 ff.

5 League of Nations, Records of the First Assembly, Assembly Doc. 71 [n.d.], Application by Albania for Admission to the League of Nations, Memorandum by the Secretary- General ; id., Plenary Meetings, 28th meeting, Dec. 17, 1920, pp. 643 ff., and Annex D, pp. 668 ff.; id., Official Journal, 2nd year, 1921, p. 1195.

6 Resolution 181 ( II ) A, Nov. 29, 1947, 128th Plenary Meeting Official Records, General Assembly, 2nd Sess., Resolutions (A /5 1 9, Jan. 8, 1948), pp. 131 ff .; id., Plenary Meetings, p. 1424.

7 Official Records, General Assembly, 3rd Sess., Pt. I , Plenary Meetings, 187th Plenary Meeting, Dee. 12, 1948, p. 1042.

8 Idem, Resolutions (Doe. A /8 1 0 , Dec., 1948), pp. 25, 27.

9 See Graham,, Malbone W ., “ In Quest of a Law of Recognition,” Faculty Research Lecture, University of California at Los Angeles, 1933, pp. 1-22, with valuable notes and citations at pp. 23-47.Google Scholar

10 See, especially, Lauterpacht,, H. Recognition in International Law (1947).Google Scholar

11 See citations in Herbert W . Briggs, “ ΄ Recognition of States: Some Reflections on Doctrine and Practice,” American Journal o f International Law, Vol. 43 (1949), pp. 113-121.

12 League of Nations, Official Journal, 1931, p. 2055. Minutes of the 64th Session o f the Council.

13 Idem, pp. 2057-2058. For the Council΄ s resolution making the termination of the mandate effective upon the entry of Iraq into the League of Nations, and for observations that capacity to maintain territorial integrity and political independence was relative and could best be met by membership in the League, see idem, 1932, pp. 471-479, 66th Session of the Council, Jan. 28, 1932. See also League of Nations Doc. 1931. V I. A. 3, Permanent Mandates Commission, Minutes of the 21st Session, 1931, pp. 221-225.

14 League of Nations, Official Journal, 1932, Spec. Supp. No. 104, Records of the 13th Ordinary Session of the Assembly, Plenary Meetings, pp. 46, 47, 111.

15 Idem, p. 47.

16 Idem, p. 52.

17 Idem, p. 49.

18 See, for example, United Nations Doe. S/1466, March 9, 1950, Memorandum on the Legal Aspects of the Problem of Representation in the United Nations; and consult materials in Malbone W . Graham, The League of Nations and the Recognition of States (1933), and the works there cited, and Malbone W . Graham, The Diplomatic Recognition of the Border States (1936-1941), Publications of the University ofCalifornia at Los Angeles in Social Sciences, Vol. 3, Nos. 1 -4 ; Hans Aufricht,“ Principles and Practicesof Recognition by International Organizations,” American Journal o f International Law, Vol. 43 (1949), pp. 679-704.

19 Jessup,, Philip C. A Modern Law of Nations-An Introduction (1948), p. 44.Google Scholar

20 Idem, pp. 44-51.

21 See above, p. 170.

22 Resolution 296 ( IV ) G, Nov. 22, 1949, 252d Plenary Meeting, Official Records, General Assembly, 4th Sess., Resolutions (A /1 2 5 1 , Dec. 28, 1949), p. 2 0 ; id., Plenary Meetings, p. 329.

23 Resolution 296 ( IV ) B, Nov. 22, 1949, 252d Plenary Meeting, Plenary Meetings, p. 3 2 9 ;΄ A /12 5 1, p. 18.

24 Resolution 296 ( IV ) I , Nov. 22, 1949, 252d Plenary Meeting, Plenary Meetings, p.329; A /12 5 1, p. 21.

25 Resolution 113 ( II ) E, Nov. 17, 1947, 118th Plenary Meeting, Official Records, General Assembly, 2nd Sess., Resolutions (A /5 1 9 ) , p. 2 0 ; id., Plenary Meetings, p. 1079.

26 Resolution 197 ( III ) D, Dec. 8, 1948, 177th Plenary Meeting (which “ Determines again that Transjordan” is a state, etc.), id., 3rd Sess., Pt. I , Resolutions (A /8 1 0 ) , p. 3 2 ; id!., Plenary Meetings, p. 800. The vote was 40 to 6, with 1 abstention.

27 Resolution 296 ( IV ) F , Nov. 22, 1949, 252d Plenary Meeting, idem, 4th Sess., Resolutions (A /1 2 5 1 ), p. 2 0 ; id., Plenary Meetings, p. 329.

28 I. C. J. Reports, 1948, p. 62.

29 Security Council, Official Records, 3rd year, No. 105, 351st Meeting, Aug. 18, 1948, p. 3.

30 Idem, p. 8.

31 Idem, pp. 5, 4.

32 Idem, pp. 14, 21, 22. During the Security Council debate on whether to invite, in accordance with Art. 32 of the Charter, representatives of the so-called “ Republic of Indonesia”to sit with the Security Council, the argument of Hr. El Khouri (Syria) that ΄ ΄ neither the Charter nor our rules of procedure stipulate that any State, to be considered a State, should have complete independence”was answered by Hr. van Kleffens (Netherlands) with the statement that “ the Charter was designed . . . to operate between sovereign States.”Idem, 2d Year, No. 67 (171st Heeting, July 31, 1947), pp. 1629, 1645. Hr. Parodi (Prance) observed: “ Although the expression ΄ sovereign State’ is not used in Article 32, this obviously does not mean that the word ΄ State’ should be understood otherwise than in its meaning in international law,”Idem, No. 74 (181st Heeting, Aug. 12, 1947), p. 1937. On the other hand, General Romulo (Philippines) thought that the term ΄ ΄ State ’ ’ as used in the Charter ΄ ΄ is not unduly restricted by the rigid rules of international law,”since the United Nations “ is founded on the bedrock of justice,”with which the Security Council should temper the principles of international law. Idem, No. 77 (185th Heeting, Aug. 15, 1947), pp. 2022-2023. In voting to invite representatives of the Indonesian Republic to participate in Security Council discussions, questions of the status and the sovereignty of Indonesia were expressly reserved. Idem, No. 74, pp. 1939-1943.Compare, however, the statements of Philip C. Jessup, Representative of the United States, to the Security Council, 383rd Meeting, Dec. 2, 1948, that “ neither at San Francisco nor subsequently has the United Nations considered that complete freedom to frame and manage one’s own foreign policy was an essential requisite of United Nations membership”and that “ the term ΄ State,’ as used and applied in Article 4 of the Charter . . . may not be wholly identical with the term ΄ State’ as it is used and defined in classic textbooks of international law.”Security Council, Official Records, 3rd Year, No. 128, p. 10.

33 Cf. Jessup, op. cit., pp. 55 ff.

34 Compare the recognition by the United States of Afghanistan without the immediate establishment of diplomatic relations, Hackworth, Digest of International Law, Vol. I, pp. 195-196; and as to Nepal, Department of State Bulletin, Vol. XVI , No. 404 (March 30 ,1947 ), p. 598, and No. 410 (May 11, 1947), pp. 949 ff.

35 Security Council, Official Eecords, 3rd Year, No. 128 (383rd Meeting, Dec. 2, 1948), p. 13. He said: “ . . . just as the existence of diplomatic relations among Members of the United Nations on a bilateral basis is not a feature inherent in co-membership in the Organization, so the question of the extension of bilateral diplomatic recognition or relationship between a Member of the United Nations and a new Member of the United Nations is not a question which lies at the root of action upon an application for membership. ” ΄ Compare the summary record of Mr. Vyshinsky's statement to the Ad Hoc Political Committee, Official Records, General Assembly, 3rd Sess., Pt. I , Ad Hoc Political Committee, 7th Meeting, Nov. 22, 1948, p. 73: “ The USSR delegation was prepared to state that even the presence or absence of diplomatic relations with any particular State should not be a factor in considering its qualifications under the Charter to be a Member of the United Nations. The USSR had never questioned the right to membership of certain States which were already Members, and with which she had no diplomatic relations. ” ΄

36 Official Records, General Assembly, 3rd Sess., Pt. II , Plenary Meetings (207th Plenary Meeting, May 11, 1949), pp. 330-331. The following Members voted against the admission of Israel: Afghanistan, Burma, Egypt, Ethiopia, India, Iran, Iraq, Lebanon, Pakistan, Saudi Arabia, Syria, and Yemen. The following Members abstained: Belgium, Brazil, Denmark, El Salvador, Greece, Siam, Sweden, Turkey, and the United Kingdom.

37 Idem, p. 332.

38 On the relation o f co-membership in the League of Nations to recognition, see Graham, The League of Nations and the Recognition of States, cited above.

39 Compare the statement of Eban (Israel), in arguing against reference to the International Court of Justice of a request for an advisory opinion on the international status of Palestine: “ . . . the existence of a State is a question of fact and not of law. The criterion of statehood is not legitimacy, but effectiveness: control over a certain area, the authority of a Government over its population, its readiness and capacity for defence, its willingness and ability to assume and fulfil international obligations. These, which are all matters of fact and not of law, determine the existence or non-existence of statehood. . . . ” Security Council, Official Records, 3rd Year, No. 98 (340th Meeting, July 27, 1948), pp. 29-30.

40 See note 35 above.

41 U.N. Doe. 8 /14 6 6, March 9, 1950, p. 3.

42 Security Council, Official Records, 3rd Tear, No. 68 (294th Meeting, May 18, 1948), p. 16. See comparable statements, idem, No. 93, p. 7 (Munoz, Argentina); No. 97, p. 36, and No. 98, p. 29 (Eban, Israel); idem, 2nd Year, No. 74, p. 1930 (Nisot, Belgium), and No. 76, p. 1981 (van Kleffens, Netherlands).