Document:- A/CN.4/149 and Add.1 The Succession of States in relation to Membership in the United Nations - Memorandum prepared by the Secretariat Topic: Succession of States and Governments Extract from the Yearbook of the International Law Commission:- 1962 , vol. II Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations SUCCESSION OF STATES AND GOVERNMENTS DOCUMENT A/CN.4/149 AND ADD.l The succession of States in relation to membership in the United Nations: memorandum prepared by the Secretariat [Original text: English] [3 December 1962] I. INTRODUCTION territories of British India except certain designated territories which will constitute Pakistan. 1. At a meeting of the Sub-Committee on the Suc- cession of States and Governments held during the "What is the effect of this development on mem- fourteenth session of the International Law Commis- bership and representation of India in the United sion, the Secretary of the Commission stated that the Nations ? Secretariat would undertake the preparation of a memo- "From the legal standpoint, the Indian Inde- randum on the problem of succession of States in pendence Act may be analysed as effecting two relation to membership of the United Nations. The separate and distinct changes; Commission took note of this statement in its report.1 "1. From the viewpoint of international law, the 2. This memorandum is accordingly submitted for situation is one in which a part of an existing the use of the Sub-Committee and of the Commission. State breaks off and becomes a new State. On this In this regard there are three significant cases. The analysis, there is no change in the international status first is that of the admission of Pakistan in 1947; of India; it continues as a State with all the treaty that was the first occasion on which a new State rights and obligations, and consequently, with all whose territory had formerly formed part of a Member the rights and obligations of membership in tbe United of the United Nations was admitted to the Organization. Nations. The territory which breaks off, Pakistan, Though the issue of succession was raised, Pakistan will be a new State; it will not have the treaty rights went through the usual procedure for admission, and and obligations of the old State, and it will not, of that procedure has been followed by all other new course, have membership in the United Nations. States which formerly were parts of Members and "In international law, the situation is analogous which have been admitted to the United Nations. The to the separation of the Irish Free State from second case is the formation in 1958 of the United Great Britain, and of Belgium from the Netherlands. Arab Republic by union between Egypt and Syria. In these cases, the portion which separated was con- The third case is the departure of Syria from the sidered a new State; the remaining portion continued United Arab Republic in 1961. as an existing State with all the rights and duties which it had before. II. THE ADMISSION OF PAKISTAN TO MEMBERSHIP, "2. Apart from the question of separation, the 2 1947 Independence Act has effected a basic constitutional 3. In August 1947, an original Member of the change in India. The existing State of India has United Nations divided into two States, India and become a Dominion, and consequently, has a new Pakistan. Before the arrival of the date set for this status in the British Commonwealth of Nations, change (15 August 1947), the Secretariat, for the independence in external affairs, and a new form of purposes of its administrative functions, was obliged government. It is clear, however, that this basic to consider the legal consequences in regard to mem- constitutional change does not affect the international bership and representation in the United Nations. A personality of India, or its status in the United legal opinion of 8 August 1947 by the Assistant Sec- Nations. The only question it raises is whether retary-General for Legal Affairs was approved and new credentials should be requested for the Indian made public by the Secretary-General.3 This legal representatives in the organs of the United Nations. opinion was as follows: Although there is no precedent for this situation in the United Nations, there is some basis in diplomatic "The Indian Independence Act provides that on practice for requesting new credentials in cases of the fifteenth day of August, 1947, two Independent States which have undergone a change of sovereignty, Dominions shall be set up in India to be known as from a monarchy to a republic. It would, there- respectively as India and Pakistan. Under this Act, fore, seem appropriate for the Secretary-General the new Dominion of India will consist of all the to suggest to the Government of India that in view of the change in sovereignty, it would be desirable 1 General Assembly, Official Records, Seventeenth Session, Supplement No. 9 (A/5209), para. 72. to have new credentials issued to the Indian repre- 2 The facts of this case are also summarized in the Repertory sentatives by the Head of the Government or the of Practice of United Nations Organs, vol. I, Article 4, paras. Foreign Minister of the new Dominion of India. 32-37. 3 United Nations Press Release PM/473, 12 August 1947 "In conclusion, the effect of the Independence (English only). Act may be summarized as follows: 101 102 Yearbook of the International Law Commission, Vol. II "1. The new Dominion of India continues as an "4. Subject to articles 2 and 3 of this agreement, original Member State of the Unitd Nations with rights and obligations under all international agree- all rights and obligations of membership. ments to which India is a party immediately before "2. Pakistan will be a new non-member State. the appointed day will devolve both upon the Do- In order for it to become a Member of the United minion of India and upon the Dominion of Pakistan, Nations, it would have to apply for admission pur- and will, if necessary, be apportioned between the suant to Article 4 of the Charter, and its application two Dominions." would be handled under the pertinent rules of pro- 6. On IS August 1947, the date on which Pakistan cedure of the General Assembly and the Security became independent, the Minister for Foreign Affairs Council. of Pakistan sent the following cable to the Secretary- General :5 "3. The representatives of India on the Economic and Social Council and the representative of India "On behalf of the Government of Pakistan, I have participating in the discussion of the Indonesian case the honour to say that in my Government's view in the Security Council should be requested to submit both the Dominions of India and Pakistan should new credentials after August 15 issued by the Head become Members of the United Nations, automati- of Government, or the Foreign Minister of the new cally, with effect from 15 August. If, however, this Dominion of India." view is not accepted, I hereby apply for the admission of Pakistan as a Member of the United Nations. 4. In the meanwhile, the representatives of India Pakistan is prepared to accept the obligations con- and Pakistan had been considering the problem of the tained in the Charter of the United Nations." devolution of international rights and obligations, and 7. The Security Council took up the application of arrived at an agreement which, though reached on 6 6 August, was not promulgated until 14 August, and Pakistan on 18 August 1947. The Council decided to was communicated to the United Nations only on 27 consider the matter directly, without previous reference August 1947, in a letter from the representative of to its Committee on the Admission of New Members. India.4 The agreement was promulgated by the Gov- The claim of Pakistan to succession to the membership ernor-General in the Schedule to the Indian Inde- of India was not specifically considered, but after a pendence (International Arrangements) Order, 1947, brief discussion in which the representative of India which provided that: supported "the application of Pakistan for membership", the Council voted unanimously in favour on "the ques- "The agreement set out in the Schedule to this tion of admitting Pakistan to membership in the United Order shall, as from the appointed day, have the Nations". The representative of Poland then remarked effect of an agreement duly made between the Do- that the vote could not be used as a precedent to omit minion of India and the Dominion of Pakistan." consideration by the Committee on the Admission of 5. The agreement read as follows: New Members. He continued: "Agreement as to the devolution of international "The state of affairs is not clear to us. We do rights and obligations upon the Dominions of India not fully know whether Pakistan was born out of and Pakistan India or whether two new States have come into "1. The international rights and obligations to being. Of course, we accept India as a Member which India is entitled and subject immediately be- and we welcome Pakistan, but this precedent cannot fore 15 August 1947, will devolve in accordance be cited in the future as justification in the event with the provisions of this agreement. another State should split up into several States and all of them should ask for automatic admission, "2. (a) Membership of all international organi- thereby depriving the Council of the privilege of mak- zations together with the rights and obligations at- ing recommendations with regard to new Members." taching to such membership, will devolve solely upon the Dominion of India.