Meaning of States by Frederick Tse Shyang Chen

7/31/2019 Meaning of States by Frederick Tse Shyang Chen

1/17

THE MEANING OF "STATES" IN THE MEMBERSHIPPROVISIONS OF THE UNITED NATIONS CHARTERFrederick Tse-shyang Chen*"Statehood" is an element of membership in the United Nations. Thetwo provisions of the Charter on membership are quite clear on thisrequirement:

Article 3. The original Members of the United Nations shallbe the states which, having participated in the United NationsConference on International Organization at San Francisco,or having previously signed the Declaration by UnitedNations of January 1, 1942, sign the present Charter andratify it in accordance with Article 110.'Article 4. (1.) Membership in the United Nations is open toall other peace-loving states which accept the obligationscontained in the present Charter and, in the judgment of theOrganization, are able and willing to carry out theseobligations.2However, the Charter does not define the term "states" nor do the two

advisory opinions of the International Court of Justice concerning membershipof the United Nations .3 In practice, the decision-makers seem to have followeda number of criteria and have given a wide variety of meanings to the term.First, they have applied a traditional definition of states in international lawwhich regards an entity as a state if it possesses "(a) a permanent population;(b) a defined territory; (c) government; and (d) capacity to enter into relationswith other states."4 The entities found to fit this definition, however, have* Professor of Law, Quinnipiac University, Connecticut, U.S.A; formerly Dean andProfessor, School of Law, Soochow University, Taipei, Taiwan, R.O.C. This article is adaptedfrom a lecture the author gave at the Institute of Comparative Law in Japan at Chuo University,Tokyo, Japan on March 17, 2001 and is scheduled to be published by the Institute during the2001-02 academic year. The author wishes to thank his colleague, Alan Karabus, for hisconnents.1. U.N. CHARTER art. 3 (emphasis added).2. Id. art. 4, para. I (emphasis added).3. Conditions of Admission of a State to Membership in the United Nations, 1948 I.C.J.57 (May 28); Competence of the General Assembly for the Admission of a State to the UnitedNations, 1950 I.C.J. 4 (Mar. 3).4. Convention on the Rights and Duties of States, Dec. 26, 1933, art. 1, 49 Stat. 3097,165 L.N.T.S. 19, U.S.T. 881. The Restatement defines state in similar terms: "Underinternational law, a state is an entity that has a defined territory and a permanent population,under the control of its own government, and that engages in, or has the capacity to engage in,formal relations with other such entities." RESTATEMENT (THIRD) OFFOREIGN RELATIONS LAW

displayed great variances among them in the degree of conformity to the fourqualifications. Secondly, the decision-makers have on occasion ignored thetraditional definition and followed other criteria of decision. This practice hasoccurred mainly in two situations. In founding the United Nations, theparticipants at the San Francisco Conference rightfully exercised theprerogatives afforded founders of international organizations and decided todefine states as entities that did not possess all of the commonly understoodrequirements of statehood and enshrined their decision in Article 3 of theCharter. The decision-makers also ignored the traditional definition when theyacted on the applications for admission of entities newly independent fromcolonial or other forms of non-self-governing rule, some of whom were notreally independent or self-governing.5 Thirdly, in cases involving the so-called"divided-states," the decision-makers have restricted the operation of thetraditional definition by attaching an extrinsic condition to further a policy offavoring the reunification of these states. The condition imposed was an


2/17

agreement between the two entities on unification or separation. Until therewas an agreement, each entity's statehood would be questioned regardless ofits actual qualifications as a state under the traditional definition.The result is that the term states in the above Charter provisions has notbeen given one uniform meaning but instead a number of plainly discordantmeanings. An entity may appear to fall short of statehood in one or another

important respect yet be held a state eligible for membership. Conversely, anentity may appear to be well-qualified as a state yet be refused the status ofstatehood remaining ineligible for membership. Under this practice, states canmean a full-fledged independent sovereign entity, a political subdivision, anoverseas possession of a state, a mandated territory, an entity with a dubiousdegree of independence, an entity with a government controlled in varyingdegrees by another government, an entity without a government, an entity witha disputed territory, and so on. The term seems to possess "metaphysicalattributes." Are all these meanings of state "lawful?" The answer seems todepend on the conception of law influencing the person giving it. If "law" isregarded as a body of absolute and autonomous rules that have fixed or plainand ordinary meanings, and if the process of application is no more than

OF THE UNITED STATES 201 (1987). See generally JAMES CRAWFORD, THE CREATIONOFSTATES IN INTERNATIONAL LAW (1979).5. Describing the entities that were admitted to membership in the 60's, ProfessorReisman wrote: "Many had economic, customs, nationality and monetary ties which linkedthem closely if not inextricably to a larger state. Many had defense arrangements with largerstates which were extremely one-sided. Many had virtually no foreign policy apparatus. Almostnone of these points was raised in debate." W. MICHAEL REISMAN, PUERTO RICO AND THEINTERNATIONAL PROCESS: NEW ROLES IN ASSOCIATION, A REPORT FOR THE CONFERENCE ONPUERTO RICO AND THE FOREIGN POLICY PROCESS, 60 (1973).6. "If Guyana, Barbados and Lesotho were states and the D.D.R. was not a state, theword 'state' plainly had some mystical metaphysical attributes requiring serious scholasticinquiry." Id. at 59-60.

THE MEANING OF "STATES" IN THE UNITED NATIONS CHARTER 27logical derivation, then, with the traditional definition on the books, many ofthe meanings mentioned above would seem to be inconsistent with the law.But this conception places too much faith in language, over-emphasizes"authority" to the neglect of "control," and over-emphasizes "perspectives" tothe neglect of "operations." A more balanced conception would regard law,not merely as rules, but as a process of authoritative decision, including acontinuing process of ascription of meaning to legal concepts such as states,and would emphasize control as well as authority, operations as well asperspectives.' Under this understanding, a decision to give a particularmeaning to states will be regarded as lawful if it is made by an establisheddecision-maker and in accordance with established criteria. A decision-makeror criterion is "established" if such is maintained by those who hold effectivecontrol in the community and supported by community expectations of howdecisions in that community ought to be made. The wide variety of meaningsgiven to the word states in the practice of the United Nations would all appearlawful when reviewed under this perspective.In the following pages, I first elaborate on the record of practice, whichhas yielded these facially inconsistent meanings, provide illustrations whereappropriate, and then discuss the legality of these meanings. At the outset, Ishould stipulate the temporal reference of my discussions. The critical timeused to test statehood in this paper is the time at which an entity became orfailed to become a member. Thus, for original members, the relevant time wasthe time when each of them became an original member in accordance withArticle 3, and for subsequent members, when a decision on recommendation


3/17

or admission was rendered or refused by the appropriate organ. This paper isnot concerned with changes in the attributes of statehood occurring after anentity has become a member, including the attainment of statehood.I. PROLIFERATION OF THE MEANING OF "STATES"A wide range of meanings for the term "states" has come about from theapplication of the traditional definition, the sidelining of this definition

followed by the application of other criteria of decision, and the restriction ofthe operation of the definition with an extrinsic condition.A. Application of the Traditional DefinitionIn the practice of the United Nations, the traditional definition has beenfollowed. For example, the Security Council was reported to take thefollowing factors into account when acting on membership applications:

7. I subscribe to the teachings of the New Haven school of jurisprudence and amindebted to its founders, the late Professors Myres S. McDougal and Harold D. Lasswell. Theirtheory about law appears in HAROLD D. LASSWELL & MYRES S. MCDOUGAL, JURISPRUDENCEFOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY (1992).

In connexion with the statehood of the applicant, referencehas been made to such matters as the following: Thepossession or lack of settled frontiers; the mode of theestablishment of the State; the bearing of a General Assemblydecision; . . . relations with a former sovereign; . . . thenecessity of ratification of peace treaties with ex-enemyapplicants; disabilities resulting from the Second World War;the legitimacy of statehood obtained through aggression and

conquest; defence arrangements with other powers; the dejure or de facto status of the applicant and its Government;recognition of the applicant by Members of the UnitedNations; the maintenance of diplomatic relations with otherStates.!However, if one were to believe that the traditional definition had given theterm states in the Charter a set of uniform and consistent meanings, that beliefwould be belied by the facts. Such a belief rests on an unwarrantedassumption that the technical concepts of law comprising the definition havea fixed and plain meaning. People may think that the United Kingdom is astate under the traditional definition. But do they think that the UnitedKingdom is a state because it meets the definition of state or that the United

Kingdom meets the definition of state because they think it is a state? Therecord indicates, first, that the decision-makers within the United Nations haveapplied the definition differently from those outside the United Nations.Secondly, within the United Nations, applications of the definition have beenflexible showing the exercise of substantial discretion. The result is that theterm has acquired a set of flexible meanings displaying inconsistencies. Asearly as 1948, a respected authority on international law and then DeputyRepresentative of the United States to the Security Council, Philip Jessup,made the following observation on uniformity:It is common knowledge that, while there are traditionaldefinitions of a State in international law, the term has beenused in many different ways. We are all aware that, under thetraditional definition of a State in international law, all the

great writers have pointed to four qualifications: first, theremust be a people; second, there must be a territory; third,


4/17

there must be a government; and, fourth, there must becapacity to enter into relations with other States of the world.... [But] the term 'State', as used and applied in Article 4 of

8. U.N. Dep't of Pol. & Security Council Affairs, Repertoire of the Practice of theSecurity Council, 1946-1951, 272-73 (1954) (hereinafter "RPSC").

the Charter of the United Nations, may not be whollyidentical with the term 'State' as it is used and defined inclassic textbooks of international law.9The point of flexible applications and meanings within the United Nations hasbeen admirably discussed.'0 Following are the more glaring illustrations foundin connection with the application of the criteria of government and thecapacity to enter into foreign relations.(1) A Permanent Population:Applications for admission have rarely been challenged for lack of apermanent population. However, the "makeup" of an applicant's populationhas been raised to challenge its statehood, but the challenges did not seem toget anywhere. The question of makeup was probably raised on the thinkingthat foreigners residing in a claimant state, being there on sufferance, were notpart of its permanent population. The decision implied that as long as anapplicant had a permanent population, whether it constituted a minority or amajority of all those living in its territory, it satisfied the requirement ofstatehood. An illustration is the application of Kuwait. When Kuwait appliedin 1961, the representative of Iraq discussed the issue of the constitution of theapplicant's population in the Security Council as follows:

The whole territory has a population of approximately250,000 inhabitants, of whom more than 60 percent live inthe town of Kuwait itself. The population outside the town iscomposed mainly of nomads who habitually roam theextensive deserts stretching from the southernmost reaches ofIraq to the heart of the Arabian peninsula. In the town ofKuwait itself, which is the only center of population in theterritory controlled by the Sheikh, the majority of theinhabitants are considered by the Sheikh himself to beforeigners, and are therefore denied the rights and privilegesnormally accorded to citizens."The Soviet Union vetoed Kuwait's application on the ground of the latter's

failure to meet the requirement of statehood. Kuwait reapplied two years later,and this time the Security Council voted unanimously to recommendadmission. Since there was no indication in the record that the makeup of

9. U.N. SCOR, 3rd Sess., 383rd mtg. at 10 (1948).10. See ROSALYN HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THEPOLITICAL ORGANS OFTHE UNITED NATIONS, Part 1 (1963); REISMAN, supra note 5, at 53-62.11. U.N. SCOR, 16th Sess., 984th mtg. at 5, U.N. Doc. S/PV.984 (1961).

Kuwait's population had undergone any significant change since the firstapplication, it must be the case that Kuwait could be held to have satisfied the

requirement of a permanent population even though its nationals constitutedonly a minority of its residents. If Kuwait was a state in 1963, it must havebeen one in 1961.12 In sum, "a permanent population" seems to mean a


5/17

permanent population which may be no more than a minority of all thoseliving in the territory of a claimant state.(2) A Defined TerritoryA notable case is the application of Israel. A resolution of the GeneralAssembly proposed the establishment of an Arab state and a Jewish state inPalestine by partitioning this then-British mandate over the objection of Arab

and other Islamic states on the ground of self-determination.13 At the time, thepopulation of the mandated territory was two-thirds Arab and one-thirdJewish. The General Assembly's resolution had not been implemented. OnMay 14, 1948, one day before the announced termination of the mandate, a

12. The irrelevancy of the makeup issue to statehood seemed obvious to many on theSecurity Council. Without any known significant changes in Kuwait's demography between1961 and 1963, the representative of Ghana said, "Kuwait possesses all the attributes of anindependent State." The representative of Venezuela said, "In the case of Kuwait all theconditions for admission to membership of the United Nations laid down in Article 4 have beenmet .... [Venezuela] [b]ases its support for the admission of Kuwait on the relevant legalprinciples." The representative of the Philippines said, "We are satisfied that Kuwait meets theexacting requirements for membership of the World Organization as set forth in Article 4 of the

Charter." For these and other statements, see U.N. SCOR, 18th Sess., 1034th mtg., U.N. Doc.S/PV.1034 (1963).The makeup of an applicant's population also has been raised as an ostensible issue whenthe opposition to the application was really based on a different reason. An illustration is thestatement of the representative of Syria in 1948, which questioned the makeup of Israel'spopulation but was obviously meant to impugn Israel's "legitimacy." The statement is asfollows:We must also consider the people living on the land. The people in the area overwhich the Jews claim that they exercise defacto authority are not all Jews. Themajority are not Jews. The majority of the population in that area is Arab. If theentire population of that area is taken into consideration, it can be seen that themajority of the people are against the formation of this State. If they were to beconsulted, and if a plebiscite were held, we would find that the majority of theArabs reject the idea of the formation of such a State. I do not speak now of allof Palestine, but of that area where the Jews claim to be exercising de factoauthority. They have gained certain advantages over the Arabs simply byterrorism and armed force. Furthermore, they have expelled the Arab population,massacred the people, looted their property and oppressed them to such an extentthat they have been compelled to leave their own country. Under suchcircumstances, we cannot consider that they have authority over people who areenjoying a democratic way of life, or who are living peacefully and in conditionsof friendship and neighbourliness with others.U.N. SCOR, 3rd Sess., 385th mtg. at 5 (1948).13. G.A. Res. 181(11), U.N. GAOR adopted Nov. 29, 1947,1947-48 U.N.Y.B. 247, U.N.Sales No. 1949.1.13.

State of Israel was proclaimed. Later in the same year Israel applied foradmission. While the General Assembly's First Committee was discussing the

future of Palestine, the Security Council acted on Israel's application.Questions were raised regarding Israel's territory. The representative of theUnited States characterized the issue as one of "undefined frontiers" only,which would not violate the requirement of a defined territory, and not one of"undefined territory", which would violate it, and explained:One does not find in the general classic treatment of thissubject any insistence that the territory of a State must beexactly fixed by definite frontiers.... The formulae in theclassic treaties somewhat vary, one from the other, but bothreason and history demonstrate that the concept of territorydoes not necessarily include precise delimitation of theboundaries of that territory. The reason for the rule that one

of the necessary attributes of a State is that it shall possessterritory is that one cannot contemplate a State as a kind of


6/17

disembodied spirit. Historically, the concept is one ofinsistence that there must be some portion of the earth'ssurface which its people inhabit and over which itsGovernment exercises authority. No one can deny that theState of Israel responds to this requirement.4The representative of the Soviet Union argued that it was incorrect to question

Israel's territory as undefined, since "[i]ts territory is clearly defined by aninternational decision of the United Nations, namely by the resolution adoptedon 29 November 1947 by the General Assembly."'5On the other hand, the representative of the United Kingdom, the formermandatory of Palestine, clearly felt that Israel's situation raised an issue ofundefined territory, stating: "The ultimate fate or at least the ultimate shapeof the State of Israel remains yet to be determined and is not yet known."'6The representative of Syria felt the same way, stating: "The State of Israel hasno territory which is not contested. The Arab States and all the neighbouringStates of the Near East contest the existence of that State; it is not only itsfrontiers that they contest, but the existence of the State itself."'7In any event, Israel was admitted into the United Nations the following

year, 1949, after it had declared its readiness to comply with a GeneralAssembly resolution on the internationalization of Jerusalem and on Arabrefugees resulting from a war between Israel and five Arab states in 1948.18

14. U.N. SCOR, 3rd Sess., 383rd Mtg. at 11 (1948).15. Id. at 22.16. Id. at 16.17. U.N. SCOR, 3rd Sess., 385th mtg. at 3 (1948).18. 2 ENCYCLOPEDIAOFPUBLIC INTERNATIONALLAW 1461 (RudolfBernharted., 1995).

A remark that the criterion of defined territory "has never been interpretedvery strictly"'9 certainly is apposite if the specter of "a defined territory" is nomore than a spirit, even an embodied one, inhabiting some portion of the

earth's surface.In sum, a defined territory seems to mean an arguably undefinedterritory.(3) GovernmentSimilarly, the criterion of "government" has not been interpreted verystrictly. An interesting illustration is the case of the application of thePrincipality of Monaco. The principality's territory totals 1.95 squarekilometers. Of an estimated total population of 31,693, as of July, 2000, theethnic composition was 40 percent French, 16 percent Monegasque, 16 percentItalian, and 21 percent other. Under a treaty with France in 1918,20 Monaco,in exchange for France's protection, undertook to limit both the constitutionand the operation of its government. Monaco's measures concerning the

exercise of a regency or succession to the throne are always the subject of priorconsultation with France, and the throne can only pass to a person of Frenchor Monegasque nationality. While the Prince is the Head of State, the head ofgovernment is the Minister of State, who is appointed by the Prince from a listof three French nationals selected by the French government. Among the threeCouncilors of Government, the Councilor of the Interior is required to be aFrench national. Regarding the operation of the government, Monaco isrequired to exercise its sovereignty in complete conformity with the political,military, naval and economic interests of France. Monaco's measuresconcerning its international relations are always the subject of priorconsultation with the French government. The French government may, on itsown motion, send military or naval forces into the territory of Monaco for themaintenance of the security of the two countries.Under the treaty regime, Monaco's government and governance areclearly subject to substantial control by France. Thus, the principality seems


7/17

to enjoy a dubious degree of statehood." Yet, in 1993, while the 1918 treaty

19. HIGGINs, supra note 10, at 20. The learned author discussed other cases in id. at 18-20.20. Treaty Establishing the Relations of France with the Principality of Monaco, July 17,1918, France-Monaco, 981 U.N.T.S. 359 (1975).21. Professor Crawford remarked: "The inclusion of Monaco in the category of protected

States is probably a result not of any indisputable qualifications for statehood but of itswidespread recognition and acceptance as a State." CRAWFORD, supra note 4, at 194 (emphasisadded). 1 L. OPPENHEIM, INTERNATIONAL LAW: ATREATISE (H. Lauterpacht ed., 8th ed. 1955)obfuscated on the statehood of Monaco: "The present status of Monaco is not easy to classify.... [But meanwhile] it seems preferable to regard Monaco as an independent State in closealliance with France." Id. at 193, n. 5.

regime remained basically intact,22 Monaco's application for admission wasrecommended by the Security Council without a vote23 and approved by theGeneral Assembly by acclamation.24 The official records indicate nodiscussions of the issue of statehood.25

In sum, government seems to mean government constituted with orwithout foreign influence and more or less self-governing.(4) Capacity to Enter into Relations with Other StatesIn 1948, the representative of the United States remarked:In so far as the question of capacity to enter into relationswith other States of the world is concerned, learned academicarguments can be and have been made to the effect that wealready have, among the Members of the United Nations,some political entities which do not possess full sovereignfreedom to form their own international policy, whichtraditionally has been considered characteristic of a State. Weknow, however, that neither at San Francisco nor

subsequently has the United Nations considered that completefreedom to frame and manage one's own foreign policy wasan essential requisite of United Nations membership.26In light of the time at which this remark was made, the phrase "some politicalentities" was probably in reference to some of the original members who werenot sovereign states. Many subsequent members also show a lack of completefreedom in determining and implementing their foreign policies. ProfessorReisman described the situation as follows:Most of the states admitted in the '60s had a number ofcommon features. Virtually all were small .... Many werepoor, in resource and technological senses .... Many hadeconomic, customs, nationality and monetary ties which

22. In 1963, France and Monaco concluded a Convention Fiscale, an agreement ontaxation, which did not alter the 1918 treaty regime. See Convention Fiscale, May 18, 1963,France-Monaco, 658 U.N.T.S. 393 (1969).23. S.C. Res. 829, U.N. SCOR, 48th Sess., 3219th mtg., U.N. Doc. S/PV.3219 (1993).24. G.A. Res. 47/231, U.N. GAOR, 48th Sess., 104th mtg., U.N. Doc. A/47/PV.104(1993).25. Equally if not more intriguing is the admission in 1993 of Andorra, a feudal remnantwhose co-princes are the French president acting in his non-governmental personal capacity andthe Bishop of Urgel, Spain. S.C. Res. 848, U.N. SCOR, 48th Sess., 3251st mtg., U.N. Doc.S/PV.3251 (1993); G.A. Res. 47/232, U.N. GAOR, 47th Sess., 108th mtg., U.N. Doc.A/47/PV.108 (1993).26. U.N. SCOR, 3rd Sess., 383rd mtg. at 10 (1948).

linked them closely if not inextricably to a larger state. Manyhad defense arrangements with larger states which were


8/17

extremely one-sided. Many had virtually no foreign policyapparatus. Almost none of these points was raised in debate.27The states Professor Reisman referred to were basically newly independentstates admitted during the period of acceleration of the decolonizationmovement. Both the original members the representative of the United Stateshad in mind in 1948 and the subsequent members Professor Reisman talked

about come more appropriately in the category of admission decisions thatwere made without regard to, rather than in the flexible application of, thetraditional definition. Nevertheless, these cases reveal the meager role thecriterion "capacity to enter into relations with other states" has played in themembership practice of the United Nations.For an illustration of the flexible application of this criterion to anapplicant that is neither an original member nor a newly independent state, wemay conveniently revert to the above-discussed case of Monaco. Under thesame treaty regime established in 1918, it is plain that Monaco does not enjoysovereign rights in both the making and the implementation of its foreignpolicies. This prompted an observation that if Monaco were to have appliedfor admission in 1961 its application would have failed on the ground of lack

of statehood.2" However, Monaco was admitted without debate in 1993,although little had changed by way of Monaco's capacity to conduct itsforeign affairs between 1961 and 1993.In sum, capacity to enter into relations with other states seems to meancapacity, more or less limited, to enter into such relations.IL. TRADITIONAL DEFINITION SIDELINED: STATEHOOD OFORIGINAL MEMBERSArticle 3 of the Charter provides:The original Members of the United Nations shall be thestates which, having participated in the United Nations

27. REIsMAN, supra note 5, at 60.28. The observation was made by Dr. Rosalyn Cohen, now Judge Rosalyn Higgins of the

International Court of Justice. She wrote that:an examination of practice before the General Assembly and Security Councilreveals that the lack of ability of a state to conduct its own foreign relations hasbeen regarded as significant, and in no case of ,irtually total limitation uponsovereign rights in this regard has an entity been admitted to membership in theUnited Nations.In an accompanying footnote, she cited Monaco as one of the examples of virtual totallimitation upon sovereign rights to conduct foreign relations. Rosalyn Cohen, The Concept ofStatehood in United Nations Practice, 109 U. PA. L. REv. 1127, 1150 (1961).

[Vol. 12:1

Conference on International Organization at San Francisco,or having previously signed the Declaration by United

Nations of January 1, 1942, sign the present Charter andratify it in accordance with Article 110.But not all participants in the San Francisco Conference or signatories to theDeclaration by United Nations were states under the traditional definition.Some of them were not states even at the time the Charter came into force.The Declaration by United Nations29 was a document signed by theU.S.A., the U.K., the U.S.S.R., and China as well as a number of other nationsthat were at war with the Axis powers, among them India. By its own termsthe Declaration was open for adherence by "other nations which are, or whichmay be, rendering material assistance and contributions in the struggle forvictory over Hitlerism."3 It was adhered to by, among others, the Philippines,Syria and Lebanon. The Declaration formed a "wartime coalition" by theseUnited Nations.3 On October 30, 1943, the governments of the United States,

the United Kingdom, the Soviet Union, and China issued a Declaration of FourNations on General Security in Moscow.32 In this document, the four nations


9/17

recognized "the necessity of establishing at the earliest practicable date ageneral international organization based on the principle of the sovereignequality of all peace-loving states, and open to membership by all such states,large and small, for the maintenance of international peace and security."33After they laid down the major contours of the international organization theyhad in mind in the Dumbarton Oaks Proposals,'M the four governments, acting

as "sponsoring powers," invited the entire wartime coalition" to the UnitedNations Conference on International Organization at San Francisco, as referredto in Article 3, for the purpose of completing the drafting of the Charter of theUnited Nations. During the conference, four additional participants, includingthe Byelorussian S.S.R. and the Ukrainian S.S.R., were invited on account oftheir contribution to the war effort.36 The sponsoring powers had always

29. Declaration by United Nations, January 1, 1942, E.A.S. 236 (1942).30. Id.31. See RUTH RuSSELL, A HISTORY OF THE UNITED NATIONS CHARTER: THE ROLE OF THEUNITED STATES 1940-1945, at 50-56 (1958).32. See Declaration of Four Nations on General Security, October 30, 1943, DEP'T ST.BULL. X, 1943, at 308.33. Id. at 30934. Proposals for the Establishment of a General International Organization, October 8,

1944, DEP'T ST. BULL. XI, 1944, at 368.35. Except Poland, whose provisional government of national unity was not yet formedat the time and which therefore could not participate. To make sure that Poland would beeligible for original membership upon formation of the provisional government, the otherwiseredundant precondition, "having previously signed the Declaration by United Nations," wasadded to Article 3. THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 156 (BrunoSimma ed., 1995).36. See Doc. 42, P/10, 1 U.N.C.I.O. Does. 344-359 (1945).

contemplated that the United Nations was to be established "with our allies.37Thus, when the invitation to the San Francisco Conference was presented to

these allies, the Secretary of State of the United States issued a statementsaying, "The responsibility for the establishment and maintenance of apeaceful world order is the common responsibility of all the United Nations."3"There was a shared expectation among the wartime allies that not only victoryin the war but also the securing of future peace and security was their jointresponsibility and undertaking. Accordingly, the participants at the SanFrancisco Conference assumed this responsibility by making themselves theoriginal members of the United Nations.However, at the time of this conference, all the named entities in theabove paragraph were not states within the traditional definition. This wasknown to all the participants.9 In fact, it was suggested, though not actedupon, that the looser word "nations" be used in place of "states" in the Charterto refer to the original members.4 A conference report mentioned that themembership of the original members was "considered as acquired by right,"and explained that "the definition adopted [in Article 3] would serve to calm

37. The Report of the Crimea Conference of February 12, 1945 stated:We are resolved upon the earliest possible establishment with our allies of ageneral international organization to maintain peace and security. We believe*that this is essential, both to prevent aggression and to remove the political,economic and social causes of war through the close and continuingcollaboration of all peace-loving peoples.Report of the Crimea Conference, February 12, 1945, 12 DEP'T ST. BuLL., 1945, at 213, 214(emphasis added).38. Statement by the Secretary of State, March 5, 1945, 12 DEP'T ST. BuLL, 1945, at 395,396.39. At the 5th plenary session of the San Francisco Conference, Mr. Molotov, the chiefdelegate of the U.S.S.R., stated:

We have at this Conference an Indian Delegation. But India is not anindependent state. We all know that the time will come when the voice of anindependent India will be heard, too. Nevertheless we share the view held by the


10/17

British Government which suggested that representatives of India should begranted a seat at this Conference, imperfect though her status is. We have at thisConference a Philippine Delegation. But the Philippines are not an independentcountry. We know full well that the time will come when we shall be able tohear the voice of independent Filipinos, too. But we have agreed with the UnitedStates Government, which suggested that the Philippines have a voice even withtheir present status.Doc. 42, P/10, 1 U.N.C.I.O. Docs. 4-5 (1945).

The Soviet attitude on the status of Byelorussia and Ukraine was interesting. Before Yalta,Ambassador Gromyko suggested that most of the sixteen Soviet republics were much moreimportant than Liberia or Guatemala, but when asked if they were independent, he gave anemphatically positive answer with a caveat that they also were "very intimately connected asmembers of a federation." RUSSEUL, supra note 31, at 509. At Yalta, Mr. Molotov explainedthat on the independence status of the Soviet republics, "his Government was prepared to followthe example of the British dominions, which had approached independent international statusgradually." Id. at 533 (emphasis added).40. THE CHARTER OFTHE UNrTED NATIONS, supra note 35, at 157. Actions taken at SanFrancisco on this issue were summarized in RUSSELL, supra note 31, at 927-29.

the fears of certain nations participating in our deliberations which, properlyspeaking, are not States and which for this reason might be denied the right ofmembership in the Organization."'" The record is, therefore, clear that thetraditional definition was deliberately sidelined at San Francisco. When theCharter came into effect on October 24, 1945, India was still a non-self-governing entity under the rule of the United Kingdom,42 the Philippines wasan overseas possession of the United States,43 Lebanon and Syria weremandated territories under the administering authority of France," andByelorussia and Ukraine were constituent republics of the Soviet Union.45In sum, under Article 3, "states" seems to mean not only states under thetraditional definition but also territorial bodies politic that failed to complywith this definition.I. TRADITIONAL DEFINITION SIDELINED: STATEHOODAND DECOLONIZATION

The impact of decolonization on membership practice has beensuccinctly summarized:The 'radicalization' of the principle of self-determination ofpeoples ... in favor of a speeding up of decolonization...led to a broadening of the spectrum of statehood and to newtypes of states, inducing a new practice and adaptation of theapplication of Art. 4. Leaving aside exceptional cases... theadmission of states which had gained their independence inthe course of decolonization as a rule took place without evenmentioning the criteria referred to in Art. 4(1). Theadmission of new member states thus became a mereprocedural formality, permitting the automatic admission of

even micro-states .... The UN having thus reached its status41. Report of the Rapporteur of Committee 1/2., 7 U.N.C.I.O. Docs. 325 (1945).42. India became a self-governing dominion on August 15, 1947.43. The Philippines became independent on July 4, 1946.44. Although independence for Lebanon was proclaimed by France on November 26,1941, it was subject to a treaty to be concluded, and France continued to exercise authority inLebanon. It was not until December 31, 1946 that the treaty was signed and France withdrewits troops from Lebanon.As to Syria, the French Troupes Speciales du Levant, stationed in Syria to maintainsecurity, did not completely leave until April 15, 1946 when France voluntarily complied witha proposed resolution which failed adoption on account of a veto. On the Security Council'sactions on the Syria and Lebenon question, see 1946-7 U.N.Y.B. 341-45, U.N. Sales No.1947.1.18.

45. See supra note 40.

of quasi-universality, the practical relevance of Art. 4 of the


11/17

Charter has become more or less reduced to solving specialcases and problems.'Thus, in the admissions of newly independent states, the traditional definitionwas not merely subjected to flexible applications but given short shrift orsidelined.Indeed, when an application was from an entity newly emerged

independent from colonial or other forms of non-self-governing rule, the"deliberations" in the Security Council were uniformly ceremonial. Themembers would take turns to speak, and the former metropolitan power, if nota member, would be invited to speak first. The speeches fell into a pattern andwould typically include: orations of satisfaction on the successful worldwidemovement of self-determination and at the peaceful achievement ofindependence by the applicant; expressions of warm welcome to an applicantwilling and well-qualified to shoulder the heavy responsibilities ofmembership in light of its history, human and natural resources; expressionsof best wishes for a prosperous and successful future; tributes, usually byWestern representatives and their friends, to the former metropolitan power fora job well done in guiding the applicant to independence; and sympathies,usually from the representatives of Soviet Union and Eastern-bloc states, for

the lengthy subjugation and the difficult road to independence endured by theapplicant. The question of the statehood of the applicant, when mentionedoccasionally, was usually subsumed in a cursory and perfunctory statementthat the speaker's government considered the applicant qualified under Article4(1) of the Charter. No representative seemed to seriously care about thetraditional definition at all. The Committee on Admissions became virtuallyirrelevant. The General Assembly was no less, if not more, welcoming.Hence, it did not matter if the applicant relied heavily on the formermetropolitan power for finance, defense and security, continued to have troopsfrom the latter stationed on its territory, was politically and structurallyintegrated with it, or, in a glaring case summarized below, did not even havea government.47

46. THE CHARTER OFTHE UNITED NATIONS, supra note 35, at 161.47. The General Assembly seemed to be well aware of the fact that some newlyindependent states would be less endowed and developed in resources and institutions. Sincecolonialism was taken to be "contrary to the Charter of the United Nations and ... animpediment to the promotion of world peace and co-operation," the General Assembly not onlydeclared that "[ilnadequacy of political, economic, social or educational preparedness shouldnever serve as a pretext for delaying independence," but also adopted resolutions to express theopinion that these newly independent states should be admitted forthwith upon attainingindependence. The quoted passages appear in Declaration on the Granting of Independence toColonial Countries and Peoples, G.A.Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66,U.N. Doc. A/4686 (1960). See also Declaration on Principles of International Law ConcerningFriendly Relations and Cooperation Among States in Accordance with the Charter of the UnitedNations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8028

The Congo (Leopoldville) attained independence from Belgium on June30, 1960. Within one week, its national force publique mutinied against itsofficers who were Belgians. On July 7, the Security Council voted torecommend its admission to membership at the United Nations.48 The dispatchby Belgium of paratroopers to protect Europeans and to restore order rekindledstrong local anti-colonial feelings. A violent civil war was also raging,involving several political factions respectively led by Joseph Kasavubu,Joseph Mobutu, the followers of Patrice Lumumba, Antoine Gizenga, andCyrille Adoula, all of whom attempted to seize political control of this newlyindependent country. The United Nations became deeply involved in peace-keeping in the Congo. In spite of the actual conditions then prevailing in the

Congo,49 the General Assembly adopted by acclamation a draft resolutionsponsored by Tunisia to admit it on September 20.50 It was the practice of the


12/17

General Assembly that, following the declaration of the admission of a newmember by the President of the General Assembly, the delegation of the newmember would be escorted to its place in the Assembly hall. In the case of theCongo, because of the state of "civil war"'" or "political anarchy,"52 no(1971) (hereinafter Declaration on Friendly Relations).

48. U.N. SCOR, 15th Sess., 872nd mtg. at 1-18, U.N. Doc. S/PV.872 (1960).49. In addition to the phenomenon of competing governments, the Congo was faced withthe attempted secession of the provinces of Katanga and South Kasai. On July 22, 1960, theSecurity Council adopted a resolution calling for the speedy withdrawal of Belgianparatroopers, which contained this language in the preamble: "the Security Councilrecommended the admission of the Republic of the Congo to membership in the United Nationsas a unit." The phrase "as a unit" was explained by a co-sponsor of the resolution as follows:In the situation that exists in the Congo at the present time, it is well for us tobear in mind the fact that the Security Council agreed to recommend theRepublic of the Congo for admission to the United Nations as the Congo thatexisted on 7 July 1960, as the Congo composed of the several provinces of whichit is constituted, and the Congo for which was established a central government... when we speak of the Congo, we mean the Congo as the Republic of theCongo - the whole unit, including all its provinces... when we recommendedthe Republic of the Congo for admission, we had no idea of any separate partsof the Congo .... and therefore, this Council can take no cognizance of any

position that the Congo is divided or that it is now no longer the same Congowhich we, on 7 July 1960, recommended for membership in the United Nations.1 Repertory of Practice of United Nations Organs, Report by the U.N. Secretary-General,Supp. No. 3, at 185-86 (1972).50. U.N. GAOR, 15th Sess., 864th plen. mtg. at 6 (1960).

51. Donald McNemar, The Postindependence War in the Congo, in THE INTERNATIONALLAW OF CiviL WAR 244 (Richard Falk ed., 1971). The author wrote: "A civil war is definedhere as a violent struggle over political control of a state occurring entirely within thegeographic boundaries of that state. The Postindependence War in the Congo fulfills theserequirements and is here analyzed as an example of a civil war." Id. at n. 1.52. In his address delivered upon the opening of the General Assembly's meeting ofSeptember 20, 1960, Temporary President Belaundo, referring to the Congo, said: "The Congocrisis has also been dealt with as a regional matter. An appeal had to be made to the solidarityof the African peoples, who were concerned to save the young Republic from political anarchyand economic chaos." U.N. GAOR, 15th Sess., 864th plen. mtg. at 2 (1960) (emphasis added).

delegation took its place in the Assembly hall. The remarks of the Presidentof the General Assembly, which turned the case from one of "lack ofgovernment" into one of mere "proper credentials," were most revealing:As Members of the Assembly are aware, the situation in theCongo has been the subject of much discussion in the UnitedNations within recent weeks and even within the past fewdays, and the constitutional and political position in thatcountry still remains, unhappily, far from clear. In thesecircumstances, we are faced with a difficulty as regards theimplementation of the resolution we have just adopted. The

difficulty is one for the Assembly itself, and I would suggestto the Assembly that the best solution of this would be torefer it to the Credentials Committee. As I hear no objectionto this proposal, it will be considered as adopted.53Even though the Security Council had recommended admission just before thegovernment in the Congo collapsed, the General Assembly was entitled andobligated to exercise its own judgment." The General Assembly plainlyignored the criterion of "government" in the traditional definition.In sum, "states" seems to mean a territorial body politic newly freedfrom colonial or other non-self-governing rule and more or less independent.IV. STATEHOOD AND THE "DIVIDED STATES"In the context of the United Nations, the term "divided states" has been

used to describe the division of Germany, Korea and Vietnam after World WarII as a part of the larger East-West conflict.5 It has not been used to refer to


13/17

the situation that has been prevailing in China since 1949, which has beenrightly or wrongly but at any rate officially treated as a case involving thequestion of representation only.6 With respect to the divided states, it wouldseem that each in every pair was clearly qualified as a state under thetraditional definition, at least in comparison with some of the members of the

53. Id. at6.54. There certainly was no lack of precedent for the General Assembly to take intoconsideration post-recommendation events and make an independent judgment accordingly.Thus, the General Assembly decided, on September 20, 1960, to postpone action on theapplication of the Federation of Mali, which became separated into Mali and Senegal afterSecurity Council's recommendation of June 28, 1960. Repertoire of the Practice of the SecurityCouncil Supp. 1959-1963, at 141.55. See THE CHARTER OF THE UNITED NATIONS, supra note 35, at 166-67.56. In 1963, Dr. Higgins wrote that the situation in China did not present a "problem ofstatehood stricto sensu, but rather a problem of the representation of an undeniably existentstate, that of China. It is, of course, quite possible to approach the problem with the view thatby now two separate states of China may exist." HIGGINS, supra note 10, at 42.

United Nations. But, for each, compliance with the traditional definition ofstatehood was not enough for it to qualify as a state for the purpose ofmembership, and the status of statehood of each, to be acceptable, was madeconditional upon an agreement with the other entity of the same pair. The twomight agree either to separate or to reunify, and their agreement would berespected. But, until agreement, an application for admission by either wascertain to be blocked by the cold-war allies or friends of the other by a controlover the number of votes or by a veto. The blocking was usually justified inpart by the assertion that the applicant was not a state but a mere "zone ofoccupation," "puppet regime," and the like. A unilateral move to applywithout the needed agreement, even accompanied by a proposal that the otherin the pair be simultaneously admitted, would still be doomed to failure. Thus,as aptly summarized, "Divided states were in fact admitted to the UN only

after the conflicting claims of the two sides had been formally adjusted, eitherin favour of division.., or in favour of reunification.""This extrinsic requirement of agreement led to a stalemate, which couldnot be broken until an agreement was reached. For a long time, none of theparts of divided states was able to secure admission. An agreement was firstreached between the two Germanys in favor of division. This was madepossible during a period of detente by the success of Chancellor Brandt'sOstpolitik which brought about a Basic Treaty between the "two German statesin one German nation" in 1972.8 The treaty paved the way for admission ofboth Germanys in 1973.59 In 1991, the two Koreas were admitted after a"South-North Basic Agreement" had defined the two sides as forming a"temporary special relationship" toward eventual reunification. In the case ofVietnam, the unification of the whole nation by the Socialist Republic of Viet

Nam rendered the divided-state issue moot, and the Socialist Republic wasadmitted in 1977.In sum, "states" did not mean an entity in a divided state, no matter howqualified it might be as a state in comparison with some members, until theother entity in the pair consented to its statehood.V. LEGALITY OF ALL MEANINGSThe proliferation of meanings, reviewed above, may have given theimpression that decisions on statehood are an unprincipled and promiscuousaffair, and that it is all a matter of power politics. Professor Reisman onceobserved:

57. THE CHARTER OF THE UNITED NATIONS, supra note 35, at 166.58. See MARY FULBROOK, THE DIVIDED NATION: A HISTORY OF GERMANY 1918-1990,at 207-210 (1992).

59. Information on the year in which a member state is admitted to the United Nationsis available on line at http://www.un.org/Overview/growth.htm.


14/17


15/17

arrived, the Philippines, Lebanon, and Syria had already deposited theirratifications. Thus, for these five entities, original membership statuscommenced on October 24, 1945. As already mentioned, on that date,Byelorussia and Ukraine were constituent units of the U.S.S.R., the Philippineswere still an overseas possession of the U.S.A., and Lebanon and Syria wereunder the mandate of France. India deposited its ratification and became an

original member on October 30, 1945, when it was under the British raj.Therefore, none of these six original members on the relevant date fit thetraditional definition of statehood known to international law, and yet thefounders, including the six themselves, decided to call themselves officially"states."Criteria of DecisionInternational law defers to the judgment of founders of internationalorganizations on who should be their members. It is the founders that set thepurpose of an organization and are uniquely interested in ensuring its effectivefunctioning. Therefore, where the founders have explicitly specified theconditions for membership in the constitutive document, their specificationsare respected and unalterable.63 Where a question pertaining to eligibility for

61. See THE CHARTER OF THE UNITED NATIONS, supra note 35, at 1191-95. Thesuggestion that Article 110(4) is a substantive provision on the criteria of original membershipis a doubtful one. See id. at 1194. Article 3 deals with "membership," and Article 110(4), onlywith "signing and ratification." Id.62. See U.N. CHARTER arts. 110, paras. 3 & 4.63. See Conditions of Admission of a State to Membership in the United Nations, 1948I.C.J. 57 (May 28).

membership is not explicitly covered in the constitutive document, it is likelyto be resolved in the interest of the effective functioning of the organization,by considering the ability of a candidate to comply with the obligation ofmembership or to participate in the normal activities of the organization." Thefounders of the United Nations, including the above-mentioned six in question,

either formed a part of the wartime coalition or contributed significantly to thewar effort and the final, complete victory. They were united in commonpurposes and enterprises. It was their shared conviction that the maintenanceof public order in the world community after the war would require aninternational organization as they envisioned. At the time of the founding ofthe United Nations, they held the effective power in the world community. Inundertaking the responsibility of founding the United Nations, they echoed thegeneral expectations then prevailing in the world community relative to thesecuring of international peace, security and abundance after the war.65 Theiractions indicated support of effective control and formal authority. In Article3, they concluded that the original members of the United Nations shouldinclude all of the founders, including the six in question. To borrow from theInternational Court of Justice, "[Flifty States, representing the vast majorityof the members of the international community, had the power, in conformitywith international law,66 to decide who should be its original members.

64. Thus, under the regime of the Treaty of Versailles, Poland was in charge of theconduct of foreign relations of the Free City of Danzig, and in connection with its foreignrelations the Free City was not entitled to call upon Poland to take any step opposed to thelatter's interest. The Permanent Court of International Justice was requested to render anadvisory opinion as to whether the Free City, under this special legal status, could become amember of the International Labor Organization. Since membership in the ILO wouldunavoidably obligate the Free City to take steps that would fall within the sphere of its foreignrelations, which could be objected to by Poland on the basis of Polish policy, the Court was ofthe opinion that this special legal status rendered the Free City unqualified for membership.Free City of Danzig and International Labor Organization, 1930 P.C.I.J. (ser. B) No. 18, at 1(Aug. 26). The Court explained:The Free City as a Member of the Labor Organization could not take any such

steps itself. It would be obligated to use the Polish Government as itsintermediary... [and] the Polish Government would be entitled to refuse to takethese steps on behalf of the Free City if they were prejudiced to important


16/17


17/17

Meaning of States by Frederick Tse Shyang Chen

Documents

Transcript of Meaning of States by Frederick Tse Shyang Chen