The Partition of India and Pakistan: Lessons on UN Membership in the Event of a Break-Up of a State

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70 years ago today (21 August 1947) the United Nations Security Council adopted Resolution 29 recommending that the General Assembly admit Pakistan to membership of the United Nations. That resolution was adopted a few days after British India was partitioned, and the emergence on 15 August 1947 of the newly independent countries of India and Pakistan. Of the many issues that arose out of the decolonisation of India, one new legal issue was how to deal with membership of the emergent states in the recently created United Nations. The UN was faced for the first time with an issue, which has proved to be a recurring one in the history of the UN: how should the organization deal with the break-up of an existing member? There have since been many cases where a number of states have emerged on the territory of an existing member after a break-up of the member (the most recent cases being Montenegro’s separation from Serbia in 2006 and South Sudan’s separation from Sudan in 2011). In all of these cases, one of the key questions that arises is whether the legal personality of the existing state continues and, if so, whether it may simply retain its membership in the UN despite the break-up. Or alternatively, is the previous state to be taken as no longer existing with all the entities emerging on its territory to be regarded as new states? Where new states have emerged from a UN member should such new states be required to apply anew for UN membership? The principles that emerged from the partition of India, with respect to the membership of India and Pakistan, came to be relied upon in later situations, particularly in the 1990s upon the break up of the Soviet Union, and ultimately also in the case of the former Yugoslavia.

India’s membership of the UN is also interesting because it (meaning British India) was an original member of the United Nations and had previously been a member of the League of Nations, even though it did not become independent until 1947. It held that membership in the UN despite Articles 3 and 4 of the UN Charter stating that membership in the UN was open to “states”. British India, being a dependent territory, was not a state as a matter of international law before August 1947. However, pre-independence India was not the only entity that was an original member of the UN that was not a state. The Soviet Republics of Byelorussia and Ukraine were also founding members of the UN (with the Soviet Union having initially suggested that all 16 Soviet Republics should be original members), as were the Philippines (which only become independent in 1946), Lebanon and Syria (though France claimed some responsibilities for both of these “states” at that time). The presence of these entities as original members suggests that the word “state” as used in Article 3 of the UN Charter, dealing with original membership, does not mean state under international law, or at any rate, was used in a sui generis manner in this particular provision of the Charter. India had been a member of the League of Nations, membership of which was open to “all self-governing State, Dominion and Colony”.

In the lead up to the partition and the independence of India and Pakistan, the UN Legal Counsel prepared an opinion in which it was stated that:

“From the viewpoint of international law, the situation is one in which a part of an existing state breaks off and becomes a new state. On this analysis, there is no change in the international status of India; it continues as a state with all the treaty rights and obligations, and consequently, with all the rights and obligations of membership in the United Nations. The territory which breaks off, Pakistan, will be a new state; . . . and it will not, of course, have membership in the United Nations.”

He recommended that Pakistan would have to apply for admission to membership [the memo and the episode described in this post are reproduced in this 1962 memorandum prepared – for the International Law Commission – by the UN Secretariat on succession of states in relation to membership in the UN, at p. 101].

This position adopted by the UN Legal Counsel was essentially reflected in an agreement reached between India and Pakistan in the days before Independence. However upon Independence on 15 August 1947, the Foreign Minister of Pakistan sent a cable to the UN, expressing the view that both India and Pakistan should become Members of the UN automatically upon independence but also stating that “If , however, this view is not accepted, I hereby apply for admission of Pakistan as a Member of the United Nations.” Pakistan’s application (which was supported by India) was treated as an application for new membership, and membership was recommended by the Security Council on that basis. Matters were not so simple in the General Assembly, where some states took the view that both Pakistan and India should be treated equally such that they either both automatically become members or they both had to apply for membership. No definitive conclusion was reached as to the correct legal position, but it was agreed that Pakistan’s membership should not be delayed, and it was agreed on 30 September 1947 (GA Res. 108) to admit Pakistan as a new member of the UN.

As a result of the lack of clarity as to how to deal with membership in cases of break-up of existing members, the First Committee of the General Assembly decided to seek guidance from the Sixth (Legal) Committee for use in future cases. The question put by the First Committee was as follows:

“What are the legal rules to which, in the future, a State or States entering into international life through the division of a Member State of the United Nations should be subject?”

It may be noted that this process of requesting what is in effect a legal opinion from the Sixth Committee is unusual.  Questions of procedure are normally dealt with by Legal Counsel, who had in fact pronounced in this particular case. Alternatively, the General Assembly may request an advisory opinion from the International Court of Justice, which it later did, twice in this same period (here and here), on issues relating to admission to membership to the UN. I am not myself familiar with other cases in which the General Assembly chose to seek an opinion from the Sixth Committee on how legal questions arising within the United Nations should be resolved. The Sixth Committee reported back stating:

“1. That, as a general rule, it is in conformity with legal principles to presume that a State which is a Member of the Organization of the United Nations does not cease to be a member simply because its Constitution or its frontier have been subjected to changes, and that the extinction of the State as a legal personality recognized in the international order must be shown before its rights and obligations can be considered thereby to have ceased to exist.

2. That when a new State is created, whatever may be the territory and the populations which it comprises and whether or not they formed part of a State Member of the United Nations, it cannot under the system of the Charter claim the status of a Member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter.

3. Beyond that, each case must be judged according to its merits.

. . .”

These principles, in effect, adopted the same solution that had been proposed by the UN Legal Counsel and which had been adopted in the case of Pakistan.

The principle that where a new state emerged on the territory of a member, but the member state did not cease to exist as a legal person, the new state would have to apply for membership and the pre-existing member would continue its membership in the UN was applied in subsequent cases. Ironically, the first such case was Bangladesh’s separation from Pakistan in 1971 (with Syria’s separation from the United Arab Republic in 1961 treated as sui generis case of readmission rather than new membership). This principle was also followed after the break-up of the Soviet Union in the 1990s.

In cases, where a UN member broke up and new states emerged on its territory but it was deemed that the legal personality of the member state had ceased to exist, the principle (which is implicit from a combination of the first two paragraphs of the Sixth Committee’s opinion) is that the membership in the UN of the previous state would automatically terminate, and all the emergent states would need to apply for UN membership. This was the principle that was applied in the case of the dissolution of Czechoslovakia in 1992 and also in the case of the dissolution, in 1960, of the Federation of Mali into the new states of Mali and Senegal (in this latter case, the dissolution happened after the Security Council recommended the admission of the Federation but before the General Assembly had admitted the Federation. The Council adopted new resolutions recommending the admission of the two new states).

These principles now seem so self-evident that it may be forgotten that when the issue first arose within the UN, the matter was not seen as straightforward.

However, the critical issue, which was not resolved by the India/Pakistan situation, is how to determine whether the situation is one of state continuity, such that the legal personality of the old UN Member is deemed to continue, or instead, a case of dissolution, such that the old state is deemed no longer to exist and all the emergent states are deemed to be new states. This was the question that proved so controversial in the case of the former Yugoslavia. In the practice of the UN and of states in making the determination as to whether the case is one of continuity, a number of objective and subjective factors have proven to be relevant. The objective factors that come into play in determining continuity will include whether the governmental structures of the predecessor state remain in place in the state said to be a continuator state and whether the bulk of the territory and population remain with the state said to be a continuator state. However, these are not conclusive factors and practice suggests that subjective factors such as whether any of the states claims to be a continuator state and whether that claim is agreed to, or at least acquiesced in, by the other emerging states, as well as the reaction of third states will probably be more important in determining whether the case is one of continuity or extinction, and consequently with regard to UN membership.

I would like to end by pointing out that these and other issues related to UN membership, including discussion of the tricky case of the membership of the Federal Republic of Yugoslavia, are dealt with in one of the chapters in the forthcoming Oppenheim’s International Law: United Nations. That volume, which I am one of the co-authors of (together with Dame Rosalyn Higgins, Philippa Webb, Sandesh Sivakumaran and James Sloan), is due to be published by Oxford University Press in October of this year. More in due course about this new book, which deals comprehensively with the law and practice of the United Nations across the range of diverse matters with which UN is engaged!

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Kriangsak Kittichaisaree says

August 22, 2017

Re: the UNGA First Committee seeking the Sixth Committee's legal opinion on this matter, the explanation in the following record should suffice:

Dapo Akande says

August 22, 2017

Dear Kriangsak,

Many thanks for posting the link to the statement. In your experience, can you think of the Sixth Committee being asked to provide a legal opinion of the kind that it was asked to provide in this episode? It strikes me as being very unusual but perhaps that is not in fact the case.

Kriangsak Kittichaisaree says

August 23, 2017

Dear Dapo,

Many thanks for your question.

The six Committees of the UN General Assembly refer questions among themselves from time to time. Most often, the 5th (Finance) Comm receives questions/referrals from the other Committees where the issues at hand have budgetary considerations.

From my own experience, in 2011 the 5th Comm. asked legal advice from the 6th Comm on proposed amendments to the mandate and structure of the Dispute and Appeals Tribunal and internal justice oversight within the UN system. The 6th Comm. convened the 'Working Group on the Administration of Justice at the United Nations'. The WG met several times to find 'legal' answers to the questions raised by the 5th Comm. (I happened to be the Chairman of that WG).

Nowadays, the 6th Comm has been assigned with finding legal answers to legal questions posed to it. E.g., the question raised by the African Union before the UN General Assembly on the scope and application of the principle of universal jurisdiction.

In the India-Pakistan situation covered in your post, I would 'guess' as follows:
- The UN Legal Counsel's legal advice did not (and still does not) bind the UN (i.e., only advisory opinions).
- The ICJ received the 1st ever application to institute a proceedings before it in May of that year (1947) i.e. in the Corfu Channel case. So, the ICJ was an untested institution.
- The 1st (disarmament, global challenges and threats to peace) Committee thought that the question was one of a legal nature and the 6th (Legal) Committee was the best forum to talk about it in the UN (and if the 6th Comm could agree on an answer, there would be no need to seek an advisory opinion from the ICJ). The 6th Comm. gave the answer in Oct. 1947.
- Only after some 12 States had unsuccessfully applied for admission to the UN (because of a veto in the UN Security Council) did the UNGA, in Dec 1947, request the ICJ's Adv Op on 'Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter)'. When this did not put to rest the issue of admission of UN membership, another request for the ICJ's Adv Op was made in Nov. 1949.