truce

On May 29, 1948, the Security Council of the United Nations "Political adopted a resolution with reference to the Palestine situation on the intervention" establishment of a truce for a period of 4 weeks. In addition to during U.N. calling upon all governments and authorities concerned "to order a cessation of all acts of armed force for a period of four weeks", the Security Council by the resolution instructed the United Nations Mediator to make contact with all parties as soon as the cease-fire should be in force with a view to carrying out his functions, called upon "all concerned to give the greatest possible assistance to the United Nations Mediator", and called upon "all Governments to take all possible steps to assist in the implementation of this resolution." S/PV.310, pp. 71, 206, 207-210.

It having been strongly urged in the House of Commons that the United Kingdom Government should extend recognition to Israel, British Under-Secretary of State for Foreign Affairs Christopher Mayhew took the position that such action on the part of His Majesty's Government for the United Kingdom at that juncture of affairs would constitute "political intervention". In this connection he stated:

"It is two-and-a-half hours since the 'cease fire' agreement came into operation in Palestine. . . .

"... The overriding objection we have to the course suggested by my hon. Friend is that our objective is to help the mediator in carrying out the resolution of the Security Council of 29th May. Count Bernadotte has earned great respect for his handling of the truce negotiations, and all men of goodwill will want to help him to carry out his task and not hamper him in his job in bringing both sides together. Our proper attitude towards the present truce is to observe the status quo in this matter. The purpose of the truce is to obtain a standstill in which negotiations can take place. The purpose of the mediator is to ensure that during the truce no military advantage will accrue to either side.

66

The resolution of the Security Council said:

"It is desired to bring about a cessation of hostilities in Palestine without prejudicing the rights or claims of either Arab or Jew.'

Recognition of Israel now would be a positive act of political intervention favouring one side. It would be wholly inconsistent with the spirit of the truce, and of the Security Council's Resolution, to take such action at this time. It would be capable of prejudicing the whole task and the course of the mediation.

"Of course, hon. Members can argue that by taking no action we are helping the Arabs. Quite clearly a change of policy here would in fact discourage the Arabs and encourage the Jews. I do not deny that. Why for that reason is it a right, just and

Codification

necessarily expedient? The view of some hon. Members is that anything which encourages the Jews will help forward a peaceful settlement. The truth is, that we have a moral obligation at present to keep the status quo and not to make this positive act of political intervention. That is clearly our duty."

451 H.C. Deb. (5th ser.) cols. 2664-2666 (June 10, 1948). For the Security Council resolution of May 29, 1948, see U.N. Security Council Off. Rec. 3d year, Supp., May 1948 (S/801); S/INF/2, July 18, 1949, pp. 48-49.

"40. The question of recognition of States-alongside that of recognition of Governments and belligerency-is, from the practical point of view, one of the most important questions of international law. Yet no attempt has so far been made to include it, on an adequate scale, as part of the work of codification. The League of Nations Committee of Experts devoted a brief discussion to the subject in so far as it is connected with the form of recognition of Governments and the international position of Governments which have not been formally recognized. The great majority of the Committee experienced little hesitation in removing the question from its agenda. The representative of Great Britain urged that the Committee should 'refuse to discuss this question of all others, since the regulation of it by means of international conventions was neither realizable nor desirable. . . . The difficulties arising from it and the delicacy of the question were well known, and, from a legal point of view, it was a subject which neither could nor ought to be treated juridically. To take an analogy, it was as though a State passed a law regulating the choice of friends to be adopted by its citizens. Such a law, if passed, would be null and void at the outset, and the same was true of a regulation of international relations'. [Minutes of the First Session, 1925, pp. 39-40.] The French Representative fully concurred in that view: "The recognition of a Government was not a matter which could be legally regulated. It was entirely a political question.' [Ibid., p. 40.] This was also the view of most of the members of the Committee. On the other hand, the representative of Argentina stated 'definitely that the question was an urgent one, that it had been put aside for political reasons, and that he personally would have desired to see it investigated'. He urged that if international relations were to be subordinated to political interests and not to sound legal principle, progress would be too slow'. [Ibid., p. 40.] The Committee did not consider other aspects of recognition.

"41. In the projects prepared in 1927 by the International Commission of Jurists in America the question of recognition appeared, in a somewhat general way, in five articles of Project No. 2 entitled 'States. Existence-Equality-Recognition'. It figured also in two articles of the Convention on Rights and Duties of States adopted in 1933 by the Seventh International Conference of American States. The question of recognition was also the subject of a resolution of the Institute of International Law in 1936 [American Journal of International Law, 30 (1936), Suppl., p. 185]-a fact suggesting that the matter is not as incapable of legal regulation as the Committee of Experts

tended to assume. It is understood that the Harvard Research had under consideration the subject of recognition with the view to including it among the research Drafts; that valuable preparatory work was done; but that it was not possible to register sufficient progress for the production of a Draft Convention. "42. The main reason for the inability or reluctance to extend the attempts at codification to what is one of the central and most frequently recurring aspects of international law and relations has been the widely held view that questions of recognition pertain to the province of politics rather than of law. There are many who believe that that view is contrary to the evidence of international practice-governmental and judicial-and that if acted upon it is probably inconsistent with the authority of international law and its effectiveness in one of the most crucial manifestations of the international relations of States. It would seem inconsistent with the authority of international law that the question of the rise of statehood and the capacity of States to participate in international intercourse should be regarded as a matter of arbitrary discretion rather than legal duty. It must therefore be a matter for consideration whether that vast problem ought to remain outside the codifying task of the International Law Commission. . . ."

Survey of International Law in Relation to the Work of Codification of the International Law Commission, Memorandum submitted by the Secretary-General of the United Nations, A/CN.4/Rev. 1, Feb. 10, 1949, pp. 26-27. In 1949 the International Law Commission commented with reference to the "Draft Declaration on Rights and Duties of States":

"50. Another proposed article would have provided that 'Each State has the right to have its existence recognized by other States'. The supporters of this proposal took the view that, even before its recognition by other States, a State has certain rights in international law; and they urged that, when another State on an appraisal made in good faith considers that a political entity has fulfilled the requirements of statehood, it has a duty to recognize that political entity as a State; they appreciated, however, that, in the absence of an international authority with competence to effect collective recognition, each State would retain some freedom of appraisal until recognition had been effected by the great majority of States. On the other hand, a majority of the members of the Commission thought that the proposed article would go beyond generally accepted international law in so far as it applied to new-born States; and that in so far as it related to already established States the article would serve no useful purpose. The Commission concluded that the whole matter of recognition was too delicate and too fraught with political implications to be dealt with in a brief paragraph in this draft Declaration . . . .”

Report of the International Law Commission, 1949 (A/925), pp. 3, 9; Yearbook of the International Law Commission 1949, pp. 281, 289.

On the matter of codification of the subject of "Recognition", see also vol. 1, chapter I, pp. 157-158.

BY WHOM DETERMINABLE

§2

A governmental function

A memorandum from the Latin American Division of the Department of State, dated April 12, 1944, referred to problems stated to have arisen in connection with the status of certain governments and groups in relation to the United Nations Relief and Rehabilitation Administration (UNRRA). It was stated that the then existing Bolivian situation raised directly the question of UNRRA's power to recognize governments as to which various members of Congress expressed concern, and that considerable difficulties were envisaged in the event that an unrecognized government should designate a new member of the Council of UNRRA. In reply to the memorandum, the Legal Adviser of the Department of State said:

"On the question of UNRRA's power to recognize governments in the political sense of the term 'recognize' or 'recognition', there should be little occasion for difficulty. The extending or withholding of political recognition is strictly a governmental funetion. While UNRRA is an international organization created by governments, it is not a government and consequently is without authority to extend recognition, nor can action taken by it in treating with non-recognized governments and entities be regarded as the extension of political recognition. UNRRA could not commit this or any other government party to the agreement on such a question. It is nevertheless desirable to view with considerable circumspection applications of non-recognized regimes for membership. . . .

Memorandum to LA (Miller) from Le (Hackworth), Apr. 18, 1944, MS. Department of State, file 800.01/4–1844.

After Latvia was invaded and occupied in 1940 by the armies of the Union of Soviet Socialist Republics, the Soviet regime in Latvia issued decrees “nationalizing” shipping enterprises and purporting to vest in the plaintiff, a corporate entity organized subsequent to 1940 under the laws of the U.S.S.R., corporate title to three ships then in private ownership. In 1943 Latvia was occupied by German armies, and defendant's predecessor in office, the Attorney General of the United States, by vesting orders, under authority contained in section 9(a) of the Trading With the Enemy Act, as amended (50 USCA App. § 9(a)), seized the proceeds from insurance on the three ships, which had been sunk. Action was brought in the United States District Court for the District of Columbia by the plaintiff to recover the proceeds of insurance on the three vessels. The defendant's motion for summary judgment was granted. The court rejected plaintiff's contention that the ships in question, being at sea, were constructively part of the territory of Latvia and subject to its decrees. The court stated that the doctrine referred to "partakes more of the characteristics of

personal than of territorial sovereignty", citing Cunard S.S. v. Mellon, 262 U.S. 100, 123 (1923). In so holding the court stated:

"Questions of the recognition or non-recognition of foreign A political governments are beyond the reach of the courts. They are com- question mitted exclusively to the political department of government, and the courts are bound by its decisions thereon. This rule is equally applicable to de jure or de facto recognition. Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 137, 138, 58 S. Ct. 785, 82 L. Ed. 1224. Lehigh Valley R.R. Co. v. State of Russia, 2 Cir., 21 F. 2d 396. As a corollary of this principle, a court may not give effect to an act of an unrecognized government, for by so doing it would tacitly recognize the government, invade the domain of the political department, and weaken its position. It would therefore appear that this court may not sustain the plaintiff's title, which stems from an act of an unrecognized government, and being without a title which can be upheld by the courts, its claim to property based thereon must fall."

Latvian State Cargo & Passenger S. S. Line v. Clark, 80 F. Supp. 683, 684 (D.D.C. 1948).

"The certificates of the Secretary of State, made a part of this record, disclose that the United States does not recognize the Soviet regime in Latvia, nor the incorporation of that country into the Union of Soviet Socialist Republics, nor the legality of any of the acts or decrees of that regime.

"Passing to recent authority, the United States Court of Appeals for the 3d Circuit had the identical question before it in 1944 in The Maret, 145 F. 2d 431, 442. In that case it was established that after the armies of the U.S.S.R. occupied Estonia in 1940 the Soviet Socialist Republic of Estonia was created. This government promulgated decrees purporting to nationalize ships of Estonian registry, and by proclamation The S. S. Maret, one of such ships, was purportedly transferred to the Estonian State Steamship Line organized by the People's Commissar of the Maritime Fleet. The Soviet Socialist Republic of Estonia had not been recognized by the United States. The Court, in an opinion by Judge Biggs, held, on the question of the ownership of The Maret, that 'When the fact of nonrecognition of a foreign sovereign and nonrecognition of its decrees by our Executive is demonstrated * * * the courts of this country may not examine the effect of decrees of the unrecognized foreign sovereign and determine rights in property, subject to the jurisdiction of the examining court, upon the basis of those decrees.' The court referred to and relied heavily upon the doctrine announced by the Supreme Court in United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796, decided in 1942. That case is the converse of the instant case, but the principle announced therein would appear to be conclusive of the question here involved. In the Pink case the executive had decided, as part of the settlement with Russia in 1933, to permit application of the Russian nationalization decrees to property located in New York. That determination with respect to these decrees was expressed in the recognition of the Soviet government as the government of Russia and the concurrent Litvinov Assignment. The Supreme Court, speaking through Mr. Justice