Abstract
After having achieved statehood the Asian states could intensify their participation in the world power process. In interactions with members of the world community the decision makers of these new states were constantly faced with conflicting interests and claims of those participants. It is rather obvious that for newly-established states the question of acquisition and allocation of resources has prime importance. In the brief period since independence one can, therefore, find various instances in which these states used all possible means of persuasion as well as coercion either to acquire or to retain resources. Indeed, it seems that the most important conflicting claims which they encountered were concerned with deprivations and threats of deprivations with respect to what they considered their legitimate resources. In order to thwart these deprivations, they naturally appealed to community prescriptions.1
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Reference
See McDougal, “International Law, Power and Policy — A Contemporary Concept” 82 Hague Recueil 206 (1953).
Hyde, International Law, Chiefly as Interpreted and Applied by the United States 1, note 1 (1951).
No important example of an international dispute is provided by Ceylon separately.
See map of Burma facing this page.
Maung Maung, Burma in the Family of Nations 11 (1956).
Tinker, “Burma’s Northeast Borderland Problems,” 29 Pac. Aff. 324–346, at 329–333 (1956).
Id. at 331–332.
See infra at 121.
Tinker, supra note 6, at 334.
Id. at 335.
Christian, Modern Burma — A Survey of Political and Economic Development 266–268 (1942); Hinton, China’s Relations with Burma and Vietnam 35 (1958).
Stark Toller, “The Undefined China-Burma Frontier,” Eastern World 13 (October 1948).
Arts. 154–200 of the Constitution of Burma.
For a complete account of the KMT activities, see the publication of the Ministry of Information at Rangoon: KMT Aggression against Burma (1953).
The Times (London), 10 February 1959.
Hinton, op. cit. supra note 11, at 53; Tinker supra note 11, at 344. 17 Hinton, op. cit. supra note 11, at 53.
N. r. Times, December 11, 1956.
Ibid. containing a quotation from The Nation.
N.Y. Times, December 15, 1956.
Id. December 20 and 21, 1956.
Kozicki, “The Sino-Burmese Frontier Problem,” 26 Far Eastern Survey 33 (1957). 28 23 These are only the most important cases which have made headlines in recent times. Burma has other unsettled frontiers, however. In the east there is an undefined frontier with India which has been further complicated by the presence on either side of the Naga people who present a problem to both countries since a separatist movement has developed in this tribe. Fifield, The Diplomacy of Southeast Asia 1945–1958, 213 (1958). Another case, yet unsolved, concerns the 21 islands in the Naaf-river which constitutes the boundary between Burma and Pakistan. Id. at 216.
Stark Toller, supra note 12, at 12.
Harvey, History of Burma (1945) quoted in Stark Toller, supra note 12, at 12.
Tinker, supra note 6, at 332.
Kyaw Thet, “Some Aspects of Sino-Burmese Diplomacy in the Reign of Bodawpaya 1782–1819,” in Burma (Rangoon) at 1 (July 1951).
British and Foreign State Papers 80–81 (1885–1886).
Christian, op. cit. supra note 11, at 266.
British and Foreign State Papers 1311–1319 (1894–1895). 31 Tinker, supra note 6, at 335.
Stark Toller, supra note 12, at 12.
British and Foreign State Papers 1311–1319 (1894–1895).
British and Foreign State Papers 25–30 (1896–1897).
See Art. II which only stated that the amount would “be fixed hereafter.” 36 89 British and Foreign State Papers 26 (1896–1897).
Tinker, supra note 6, at 335.
For Art. IV see supra at 123.
Christian, op. cit. supra note 11, at 265.
British and Foreign State Papers 165–167 (1935): “Exchange of Notes between the United Kingdom and India, and China regarding the establishment of a Commission to determine the Southern Section of the Burma-Yunnan Boundary,” Nanking April 9, 1935.
Stark Toller, supra note 12, at 13–14.
The Burma-China Frontier Dispute,“ 13 The World Today 91 (1957); Tinker, supra note 6, at 335–336.
Stark Toller, supra note 12, at 13.
See Rubin, “The Sino-Indian Border Disputes,” 9 LC.L.(j,. 96–125, at 97, 105–107 (1960).
The World Today, supra note 42, at 91.
Oppenheim, International Law 802–803 (7th ed. 1952).
Kozicki, supra note 22, at 35.
N.Y. Times, November 11, 1956; The Nation, November 11, 1956; see also Kozicki, supra note 22, at 35, footnote 9.
Kozicki, supra note 22, at 35.
Id. at 37.
Schwarzenberger, International Law 313 (1957).
U. N., 2 Reports of International Arbitral Awards 831–871 (1949).
Id. at 839.
Schwarzenberger, op. cit. supra note 51, at 313–314.
See further the bill introduced in the Legislative Yuan, supra note 43. 56 2 Oppenheim, op. cit. supra note 46, at 188–190 (8th ed. 1955).
Kozicki, supra note 22 at 35; The World Today, supra note 42, at 90.
See Schwarzenberger, op. cit. supra note 51 at 313.
With respect to Burma: The World Today, supra note 42, at 36; for China, see Stark Toller, supra note 12, at 12.
Supra at 121.
Hinton, op. cit. supra note 11, at 32.
Id. at 40.
Stark Toller, supra note 12, at 12. 64 See supra at 130.
Hinton, op. cit. supra note 11, at 29–30.
Kozicki, supra note 22 at 35–37.
Hinton, op. cit. supra note 11, at 40.
The World Today, supra note 42 at 86; Kozicki, supra note 22, at 35.
The problem of subversion by an increasing number of Chinese immigrants, however, has the Burmese authorities very worried.
The Observer (London), February 7, 1960, p. 5, col. 1. For the significance of the Chinese-Burmese frontier agreement for India, see The Guardian (Manchester), February 1, 1960, p. 9.
See Prem Nath Bazaz, History of the Struggle for Freedom by Kashmir (1954); Bird-wood, Two Nations and Kashmir ( 1956 ); Brecher, The Struggle for Kashmir (1953).
Zafrullah Khan, The Kashmir Question 5 (1950); Potter, “Principal Legal and Political Problems Involved in the Kashmir Case,” 44 A.J1.L. 362 (1950).
See map of Kashmir, facing this page.
Mayfield, “A Geographical Study of the Kashmir Issue,” 45 Geographical Rev. 181, note 3 (1955).
Lumby, The Transfer of Power in India 1945x47, 203 (1954).
Id. at 203–204.
Id. at 204.
See infra note 114 and 115.
Diwan, “Kashmir and the Indian Union — The Legal Position,” 2 LC.L.Q. 338–339 (1953).
Prime Minister Attlee advised the Princely States not to isolate themselves from the rest of India; see Diwan, supra note 79, at 339.
Nawaz, “The Kashmir Problem,” 2 I.Y.I.A. 184 (1953).
Diwan, supra note 79, at 340.
Birdwood, op. cit. supra note 71, at 39.
Nawaz, supra note 81, at 185; Lumby, supra note 75, at 244; Zafrullah Khan, supra note 72, at 6, 9–10.
Das, “The Status of Hyderabad during and after British Rule in India,” 43 71–72 (1949); Nawaz, supra note 81, at 185; Zafrullah Khan, supra note 72, at 9.
Griffith, Modern Burma 140 (1957); Symonds, The Making of Pakistan 157 (1950); Birdwood, op. cit. supra note 71, at 40.
Mayfield, supra note 74, at 182; Diwan, supra note 79, at 341.
Birdwood, op. cit. supra note 71, at 214, App. V.
Griffith, op. cit. supra note 86, at 150. See also map of Kashmir, facing p. 135.
Nawaz, supra note 81, at 187.
U.N. Security Council (S/654), January 20, 1948.
For the text of this agreement, see U.N. Securiy Council (S/955), August 13, 1948.
Birdwood, op. cit. supra note 71, at 217, App. VIII.
U.N. Security Council (S/1192), Jan. 5, 1949.
Nawaz, supra note 81, at 189; Zafrullah Khan, supra note 72, at 27–32.
Birdwood, op. cit. supra note 71, at 221, App. X; Nawaz, supra note 81, at 190. 97 Griffith, op. cit. supra note 86, at 152.
Ibid.
Cf. Eagleton, “The Case of Hyderabad before the Security Council,” 44 A.J.I.L. 277 (1950); Potter, supra note 72, at 361.
Keith, The Governments of the British Empire 25 (1935).
Diwan, supra note 79, at 334–339; Nawaz, supra note 81, at 183–185.
Das, supra note 85, at 57.
Nawaz, supra note 81, at 183. 104 Das, supra note 85, at 70.
Nawaz, supra note 81, at 184, n. 3.
Eagleton, supra note 99, at 281.
Quoted by Das, supra note 85, at 64.
Eagleton, supra note 99, at 283.
See for the different varieties of states in the Indian Federation, Diwan, supra note 79, at 334–335.
Supra at 138.
Ibid.
Eagleton, supra note 99, at 284 and n. 18.
See the other statements to this effect from e.g. the British Government, Lord Listowell (Secretary of State for India), Mr. Churchill and Lord Mountbatten, in Eagleton, supra note 99, at 281–284.
Das, supra note 85, at 72; cf. opinion of Sir Benegal Rau, quoted in Eagleton, supra note 99, at 285.
Eagleton, supra note 99, at 285.
Supra at 141.
Nawaz, supra note 81, at 191.
Korbel, Danger in Kashmir, 137–140 (1954).
Diwan, supra note 79, at 346.
Nehru’s speech in Parliament on August 7, 1952, in Kashmir 1947–1956 — Excerpts from Prime Minister Nehru’s Speeches, 33 (1956).
Diwan, supra note 79, at 347.
Potter, supra note 72, at 361.
Nawaz, supra note 81, at 191.
Mayfield, supra note 74, at 184–186; Zafrullah Khan, supra note 72, at 13; Human Relations Area Files (HRAF), Area Handbook on Kashmir.
Mayfield, supra note 74, at 186.
See id. at 186; Zafrullah Khan, supra note 72, at 10.
See Mayfield, supra note 74, at 187–188.
See Zafrullah Khan, supra note 72, at 12–13; Mayfield, supra note 74, at 191–192.
Kusun Nair, “Where India, China and Russia meet,” 86 For. Aff. 335 (1957–58).
Dhar, “The Kashmir Problem — Political and Economic Background,” India Q. 142–160 (1951); Mayfield, supra note 74, at 189.
Zafrullah Khan, supra note 72, at 11.
Korbel, supra note 118, at 7–8.
Mayfield, supra note 74, at 189.
Ibid.
Griffith, op. cit. supra note 86, at 154–155.
Birdwood, op. cit. supra note 71, at 224–225.
Recently (September 1960) a solution was found for the problem of the division of waters when India and Pakistan signed a treaty containing an Indus Basin Settlement Plan. See Keesings Historisch Archief 16015 (1960).
Griffith, op. cit. supra note 86, at 162; Symonds, op. cit. supra note 86, at 162.
Respectively U.N. Doc. No. S/955 and S/1192.
Korbel, “New Hope for Kashmir?,” 34 For. Pol. Bull. 89 (1955).
Not only Indian or Pakistan writers have made this mistake. Foreign authors too have made superficial remarks which they then reversed afterwards; see Kirkpatrick, “A Claim Disproved,” New York Post, May 30, 1948.
Cf. Mayfield, supra note 74, at 194–196.
Diwan, supra note 79, at 346.
Ter Laan, Kashmir, de heksenketel in India (Kashmir, the cauldron in India) 3 (The Hague, 1957 ).
Diwan, supra note 79, at 346.
Eagleton, supra note 99, at 281.
Id. at 195.
Ibid.
Symonds, op. cit. supra note 86, at 161.
Mayfield, supra note 74, at 196.
Palmer, “The Changing Scene in Kashmir,” 22 Far Eastern Survey 158 (1953); cf. Griffith, supra note 86, at 152.
Griffith, op. tit. supra note 86, at 151.
Korbel, op. cit. supra note 118, at 136.
Cf. Birdwood, op. cit. supra note 71, at xvi.
Symonds, op. cit. supra note 86, at 162.
After the clashes on the Chinese border following the Tibet troubles, it was rumoured that closer ties between India and Pakistan would be established. Cf. N.R.C. 2 September 1959, p. 1, col. 1).
Tikekar, “The Durand Line,” 6 India Q. 326–331 (1950); Tyler, Afghanistan 296 (1953).
Feer, “India’s Himalayan Frontier,” 22 Far Eastern Survey 137 (1953).
Ibid.
Kachru, “Ladakh,” 6 India Q. 58–67 (1950).
Manchester Guardian, 24 October 1959, p. 1, col. 1.
The Times (London), 20 November 1959, p. 10, col. 5.
Birdwood, op. cit. supra note 71, at 218.
Zafrullah Khan, supra note 72, at 36.
Id. at 37.
U.N. Security Council (S/1192), Jan. 5, 1949.
Zafrullah Khan, supra note 72, at 38.
M. M. R. Khan, The United Nations and Kashmir 176 (1954).
Id. at 43.
From a statement in Parliament, March 29, 1956, in “Kashmir 1947–1956. Excerpts from Prime Minister Nehru’s Speeches,” 44 (1956).
Supra at 152–157.
Supra at 158.
Statement in Parliament, March 1, 1954, in Kashmir 1947–1956, op. cit. supra note 171, at 39.
M. M. R. Khan, op. cit. supra note 169, at 177.
recent article stated that in the last few months the Indo-Pakistan relations have taken a turn to the better, especially with regard to the division of waters, commercial and financial relations. But “nothing at all has so far been done about Kashmir” which still constitutes an “almost measureless gap.” “Indo-Pakistani Relations,” The Round Table, no. 198, at 163 (1960).
From a statement made in Parliament, March 29, 1956, in Kashmir 1947–1956, op. cit. supra note 171, at 44.
See folding map of the Indonesian archipelago, facing this page. This appendix is a reproduction of the map attached to the Indonesian Act No. 4 of 18 February 1960 (U.N. Doc. A/CONF. 19/5/Add. 1) supplied by the Indonesian Government as an Addendum to the Supplement to Laws and Regulations on the Regime of the Territorial Sea (U.N. Legislative Series). Permission for reproduction was kindly granted by the U.N. Publications Board.
Cressey, Asia’s Land and Peoples 527 (1952); Stamp, Asia - A Regional and Economic Geography 434–450 ( 1957 ); Vlekke, Nusantara — A History of the East Indian Archipelago xi (1944).
Cressey, op. cit. supra note 179, at 527.
Staatsblad van Nederlands Indië (Official Gazette of the Netherlands Indies) 1939, no. 442, translated by the Secretariat of the U.N. and printed in “Laws and Regulations of the Regime of the Territorial Sea,” U.N. Legislative Series 193–201 (ST/LEG/SER. B/6) (1957).
Id. at 194.
This was done in Staatsblad van Ned. Indie 1939, no. 452.
Staatsblad van Ned. Indie, supra note 181, art. 1, para. IA.
Id. art. 1, para. IB.
Id. art. 1, para. 1C.
ß7 Id. art. 15, 16 and 17.
Id. art. 3 and 4 (para. 1).
Engelbrecht, De Wetboeken, Wetten en Verordeningen, benevens de Voorlopige Grondwet van de Republiek Indonesië,“ (The Code Books, Statutes and Ordinances including the Provisional Constitution of the Republic of Indonesia) 17, 33, 67 and 95 (1956).
The Cabinet, in its session of Friday 13 December 1957, discussed the problem of the water areas of the Republic of Indonesia.
The geographical composition of Indonesia as an archipelago consisting of thousands of islands has its own particular characteristics.
For the purposes of territorial unity, and in order to protect the resources of Indonesia, all islands and the seas in between must be regarded as one total unit. The delimitation of the territorial sea as laid down in the “Territorial Sea and
Translation of the Indonesian text as published in the Indonesian law journal “Hukum,” vol. 1958, no. 5–6, Annex I. This same declaration as printed in an Indonesian newspaper article (Keng Po, 14 December 1957) includes also the following line: “From time immemorial the Indonesian archipelago has formed one unit.”
Besides the Netherlands other countries have protested against the Indonesian intentions, e.g. U.K. N.R.C. 20 Dec. 1957, U.S. and Japan, id. Jan. 14, 1958, Australia and France, The Times, London, Jan. 16, 1958, and New Zealand, N.R.C. 20 Jan. 1958.
Manchester Guardian, Febr. 13, 1958.
This English text of Act no. 4, 1960 is published in U.N. Doc A/Conf. 19/5/Add. 1, p. 3–4. (1960).
McDougal and Burke, “Crisis in the Law of the Sea. Community Perspectives Versus National Egoism,” 67 Tale L.J. 539–589 (1958).
Id. at 540.
McDougal and Burke, supra note 194.
Id. at 551–555.
For an explanation of the terms “exclusive” and “inclusive” claims, see McDougal and Burke, supra note 194, at 539, n.l.
Id. at 589. Statements to that effect were frequently heard at the Geneva Conference of 1958, e.g. during the debate in the 1st Committee, by the representative of the Philippines, Summary Records of the 1st Committee, U.N. Doc. A/Conf. 13/39 at 5 (1958), of India id. at 15 and of Ceylon, id. at 27.
McDougal and Burke, supra note 194, at 589.
The Indian representative in the Third Committee of the Geneva Conference of 1958 illustrated this point when he stressed the importance of protection of the interests of the coastal state in the living resources of the high seac; especially to the “underdeveloped areas with their expanding populations and increasing dependence on the sea for food.” Summary Records, 3rd Committee, U.N. Doc. no. A/Conf. 13/41, at 4 (1958).
Such statements, made in many Asian countries, were obviously the result of strong nationalistic feelings prevalent in these new states at the time. However, subsequent developments on the domestic scene have demonstrated that the basic issue was indeed to survive the mounting problems of political, economic and social nature.
Supra at 175.
Oppenheim, International Law 460 (8th ed. 1955). 206 McDougal and Burke, supra note 194, at 551.
Cf. 1 Oppenheim, op. cit. supra note 205, at 487.
Id. at 460–461.
McDougal and Burke, supra note 194, at 561. 210 210 Id. at 574.
Supra at 174. The Act No. 4 of 1960 does not use the term “exclusive sovereignty,” but the Explanatory Memorandum which accompanies this Act explicitly mentions Indonesia’s exclusive sovereignty over her internal waters. See e.g. Circular No. H. 248 of the Commercial Advisory Foundation in Indonesia (CAFI) of which an annex contains the Explanatory Memorandum.
The question of innocent passage in “areas which previously had been considered as part of the territorial sea or of the high seas,” is dealt with in art. 5, para. 3 of the draft-articles of the International Law Commission (Doc. A/3159). At the Geneva Conference in 1958, it appeared that the meaning of “innocent” was essentially: “a passage which is not prejudicial to the security of the coastal state.” The meaning of the word “security” was not clearly explained, however. Min. v. B.Z., op. cit. supra note 196, at 21. The Indonesian decree seemed to be in agreement with these views.
McDougal and Burke, supra note 194, at 574.
Ibid.
The question is somewhat different, however, in such “closed seas” as the Black Sea and the Baltic where more than one state possesses the coast. Although one could then still claim the existence of a special regime, a certain breadth of the territorial sea still has sense here. See the discussion on closed seas in Summary Records, 2nd Committee, Doc. A/Conf. 13/40 at 37–40 (1958).
Ibid.
Id. at 561.
Colombos, The International Law of the Seas 66 (3rd rev. ed. 1954 ).
Ibid.
See Briggs, The Law of Nations, 354 (1952).
At the 1958 Geneva Conference the Indonesian delegate stated in the 1st Committee that in the absence of an independent organ of arbitration the only practical possibility was to maintain a subjective criterion, e.g. that of art. 17, para. 1, with respect to suspension of exercise of the right of innocent passage in its territorial sea. This, according to the Indonesian representative, was the basic rule. Therefore, he rejected a proposed amendment which would establish the right of innocent passage through straits which connect a part of the high seas with the territorial sea of a particular state. Such a rule would be an infringement on the basic right of art. 17, para. 1, in its own territorial sea, he said. Summary records, 1st Committee, A/Conf. 13/39 at 93–94 (1958).
Colombos, op. cit. supra note 218, at 99.
Id. at 192; 1 Oppenheim, op. cit. supra note 205, at 461.
The history of art. 24 of the ILC draft, which article was dropped from the Convention on the Territorial Sea and the Contiguous Zone, seems to support the Indonesian attitude with respect to passage of warships. See Summary Records, 1st Committee, op. cit. supra note 200, at 127, 129–131.
CAFI, Supra note 211.
McDougal and Burke, supra note 194, at 552–553.
Cf. International Law Commission, Report U.N. Gen. Ass., Off. Rec. 10th sess., Supp. No. 9, art. 10 at 18 and comment.
McDougal and Burke, supra note 194, at 562.
See Evensen, The Anglo-Norwegian Fisheries Case and its Legal Consequences,“ 46 A.J.LL. 609–630 at 621 (1952).
McDougal and Burke, supra note 194, at 575.
The consequences of the adoption of straight baselines connecting the outermost points of the Indonesian Archipelago are fairly clear. AM waters within such baselines become internal waters. The Philippine delegate brought this up at the Geneva Conference of 1958. His proposal (Doc. A/Conf. 13/C1/L98) was later withdrawn. Summary Records, 1st Committee, op. cit. supra note 200 at 148.
For the ring of straight baselines around the Indonesian archipelago, see map facing p. 168.
See Act. 4, 1960, supra at 175.
Staatsblad van Ned. Indie (Official Gazette of the Neth. Indies) 1927 no. 145 on “General Regulations of April 29, 1927, for the hunting of whales within three nautical miles of the coast of the Netherlands Indies” (printed in “Laws and Regulations of the Regime of the Territorial Sea,” op. cit. supra note 182 at 535) which speaks in art. 2 of the right of the indigenous population to hunt whales “insofar they have been accustomed from time immemorial to carry on such hunting.”
Evensen, “Certain legal aspects concerning the delimitation of the territorial waters of archipelagos,” U.N. Gen. Ass., A/Conf.13/18 at 5 (1957). During the general debate in the 1st Committee of the Geneva Conference of 1958 the Indonesian representative expressed the hope that art. 10 of the ILC draft concerning islands would be supplemented so as to regulate the question of “groups of islands as a single geographic or economic unit, and covering cases in which such groups were situated in the middle of an ocean” Summary Records, 1st Committee, supra note 200 at 15. However, the Conference was unable to succeed where the ILC had failed. Efforts by Yugoslavia (Doc. A/Conf. 13/C. 1 /L. 59), the Philippines and Indonesia to have a provision adopted regulating the special regime of an archipelago did not receive enough support. See Summary Records, 1st Committee, op. cit. supra note 200 at 161–163.
Evensen, supra note 234, at 13.
Id. at 13.
The question of the territorial sea of islands has another important aspect to which the Burmese delegate at the Geneva Conference of 1958 drew the attention. He pointed to the position of an island situated in the territorial sea of another state. He stated that, if such an island were to have its own territorial sea, it would also be entitled to its own contiguous zone and continental shelf and the result would only be an intolerable conflict of jurisdiction since the “median line” only solves the problem on the landward side of the island. Summary Records, 1st Committee, op. cit. supra note 200, at 161. The representative of Thailand saw this statement as directed towards some Thai islands off the Burmese coast. In his opinion the matter could best be solved by bilateral negotiations. Id. at 162.
Evensen, supra note 234, at 17.
Cf. the examples of New Zealand and Japan which differ also in this respect that they are less centrally situated than Indonesia and the Philippines.
Supra note 211.
Evensen, supra note 234, at 33. 242 Ibid.
McDougal and Burke, supra note 194, at 553, 562–563.
Colombos, supra note 218, at 40.
Id. at 50.
Evensen, supra note 234, at 6–18.
Colombos, supra note 218, at 80.
Jessup was of the opinion that the three-mile limit was an established rule in 1927. Jessup, The Law of Territorial Waters and Maritime jurisdiction 66 (1927). See also Harvard Research in International Law, Draft Convention on Territorial Waters, arts. 2–7, in 23 A.J.I.L. (Supplement) at 250–262, 275–280 (1929).
At the 1958 Geneva Conference art. 3 of the ILC draft was not discussed successfully. Of the many proposals only a few survived the first stages. They were taken to the Plenary meeting of the Conference, but all failed to receive the necessary 2/3 majority. Indonesia had co-sponsored the Mexican proposal (A/Conf. 13/L. 34 ).
Dean, “The Geneva Conference on the Law of the Sea —What Was Accomplished,” 52 A.J.I.L. 608–616 (1958); Smith, The Laws and Customs of the Sea 13 (1948); 3 Gidel, Le Droit International Public de la Mer 123 (1934).
Young, “Recent Developments with Respect to the Continental Shelf,” 42 A.J.I.L. 857 (1948).
Smith, supra note 250, at 17.
Colombos, supra note 218, ta 83.
Id. at 81.
Cf. the more cautious and thus more correct view in D.H.N. Johnson, “Control of Exploitation of Natural Resources in the Sea off the U.K.,” 4 I.L.Q. 447 (1951) where it was stated that territorial waters mean in general “such parts of the sea adjacent to the coast of the U.K. as is deemed by international law to be within the territorial sovereignty of Her Majesty”.
McDougal and Burke, supra note 194, at 578.
Supra at 174.
Evensen, supra note 229, at 628–629.
Id. at 625–626.
International Law Commission, supra note 227, comment on art. 3 at 16.
François, La Deuxième Conférence Sur Le Droit de la Mer, 7 Neth. I. L. R. 249–254 at 250 (1960).
McDougal and Burke, supra note 194. at 554–563.
Id. at 581–582.
See supra at 169.
In the 4th Committee of the Geneva Conference of 1958 the Indonesian representative stated that his country accepted art. 67 of the ILC draft. New techniques of exploitation made restriction of such exploitation necessary in order to protect the resources of the continental shelf for the coastal state, regardless of whether this state is technically able or willing to exploit these resources or not. Indonesia then rejected the suggestion of placing the exploitation of the continental shelf under the control of an international body. Furthermore, Indonesia favoured the Philippine statement “that art. 67 could not apply to the island shelves of an archipelago forming a continuous submarine platform around the perimeter of the archipelago and linking all its islands, islets, shoals and rocks.” Summary Records, 4th Committee, U.N. Doc. A/Conf. 13/42, at 26 (1958).
McDougal and Burke, supra note 194, at 582.
Id. at 580.
See McDougal and Burke, supra note 194, at 580, note 140, dealing with a claim of Mr. Escudero of Ecuador on the right of economically weak states to extend their territorial sea as a means of saving their economies. Although such a right is not entirely indefensible, the justification is here sought in a compensatory measure to correct injustice, which is apparently decided subjectively by the claimant state, and which in turn might cause other injustices. A justification should be based on firmer grounds, for it is perfectly true, as Mc Dougal and Burke remarked, that the inclusive uses of other states did not necessarily mean that the economically weaker state has always become the victim of economic development of world resources. In the case of Indonesia, however, the consideration of mutual benefit does not hold, for it cannot be seen what advantage will ever be enjoyed as a result of an establishment of various contiguous zones.
Cf. Briggs, supra note 220, at 329.
McDougal and Schlei, “The Hydrogen Bomb Tests in Perspective — Lawful Measures for Security,” 64 Tale L. J. 657 (1955), which clearly expounds that the major policy purposes of the regime of the high seas is not only “negotiation of restrictions upon navigation and fishing, but also the promotion of the most advantageous peaceful use and development by all people of a great common resource…”
With regard to fishing on the high seas the Indonesian representative stated in the Third Committee of the Geneva Conference of 1958 (Summary Records, 3rd Committee, Doc. A/Conf. 13/41, at 127) that Indonesia was in general satisfied with the fisheries articles as adopted by the Committee. It can be said that Indonesia supported the view that the coastal state has a special vital interest in the living resources of the sea. Agreements with neighbouring coastal states should be concluded with regard to the respective interests in the living resources of the particular maritime area, Id. at 9–10.
Supra note 234.
See 2 Yearbook of the ILC 18 (1956) or U.N. Doc. A/Conf. 4/99 at 28–29.
Supra note 234, but cf Mouton, De conferentie betreffende het recht van de zee, gehouden to Geneve van 24 februari tot 29 april 1958. (The Conference on the Law of the Sea of Geneva, from 24 February till 29 April 1958) 37 (1959).
Min. v. B. Z., op. cit. supra note 196, at 37.
U. N. Doc. No. A/Conf. 13/Cl/L. 158/Rev. 1.
Mouton, op. cit. supra note 274, at 37.
E.g. Statement of the Indonesian representative in the 1st Committee (A/Conf. 13/39 at 14), of the Indian representative in the 1st Committee (Id. at 14), and of the Indonesian representative in the 4th Committee (A/ Conf. 13/42 at 22). For other claims for preferential fishing rights, see the proposals of Brazil, Cuba and Uruguay (A/Conf. 19/L. 12) and of Iceland (A/Conf. 19/L. 13) at the 2nd Conference.
The 2nd U.N. Conference on the Law of the Sea adopted a proposal submitted by Ethiopia, Ghana and Liberia (UN Doc. A/Conf. 19 /L 8) with regard to technical assistance in fishing activities. However, the proposal lost much of its significance when the Canadian-American plan, which the three abovementioned sponsors assumed would be adopted, was rejected.
See statement by the Philippine delegate, Summary Records, 1st Committee, op. cit. supra note 200, at 153.
Supra Chapter I at 16.
Dean, “The Geneva Conference on the Law of the Sea. What Was Accomplished,” 52 A..7.LL. 607–628 (1958); Jessup, “The Geneva Conference on the Law of the Sea; a Study in International Law-Making,” 52 A.1.1.L. 730–733 (1958); Young, “The Geneva Convention on the Continental Shelf,” 52 A.,.LL. 733–738 (1958).
Jessup, supra note 281, at 731.
Dean, supra note 281, at 608–609.
For some of the reasons of partial failure see Johnson, “The Preparation of the 1950 Geneva Conference on the Law of the Sea,” 8 I.C.L.Q. 142 (1959).
For a review of some Asian claims, see synoptical table, infra at 204. 286 Dean, supra note 281, at 600–609.
See Chapter I, supra at 3.
For a clarification of Japan’s difficult position on this matter, see Oda, `Japan and the U.N. Conference on the Law of the Sea,“ 3 J.A.I.L. 65–86 (1959).
Dean, supra note 281, at 609, 615.
Oda, supra note 288, at 610.
at 614.
U.N. Doc. A/Conf$119/C$11/L. 2 /Rev. 1 (1960).
U.N. Doc. A/Conf. 19/L. 9 (1960).
For the result of the roll-call, see U.N. Doc. A/Conf. 19/SR. 13 (1960).
The delegate of Saudi Arabia made severe accusations to this effect. U. N. Doc. A/Conf. 19/SR. 13. Whether they are true or not, it is common knowledge (and even understandable) that this bargaining practice exists.
Quoted by Chacko, “Peaceful Coexistence as a Doctrine of Current International Affairs,” 4 I.T.I.A. 14–15 (1955).
See Tunkin, “Coexistence and International Law,” 95 Hague Recueil, Part III, at51 (1958).
See Chacko, supra note 295, at 15.
Ibid. Active propagation of this theory of coexistence was apparently not started before 1930.
Alexeyev, “Peaceful Coexistence and Economic Competition of the Two Systems,” Int. Aff. (Moscow) 19–24, at 20 (Jan. 1959).
Chacko, supra note 295, at 27.
See Krushchev in his report at the 20th Party Congress, in New Times (Moscow), No. 8 (suppl.), 16 February 1956.
Aaron and Reynolds, “Peaceful Coexistence and Peaceful Cooperation,” 4 Pol. Studies, 284–285 (1956). Lenin must have said that capitalist supremacy was doomed to pass away, since the economic development of these countries led to that end. See also Khvostov, “The Seven-Year Plan and Peaceful Coexistence,” Int. Aff. (Moscow) 8 (Febr. 1959). Krushchev also stated: “The capitalist world, torn by the exacerbated general crisis, is coming nearer to its inevitable collapse.” Id. at 10.
Krushchev, “On Peaceful Coexistence,” 38 For. Aff. 1–18 at 15 (1959).
Id. at 4.
Id. at 6.
Snyder and Bracht, “Coexistence and International Law,” 7 I.C.L.Q. 54–71 at 55 (1958).
See id. for praise and criticism of Korovin, Pashukanis, Sarabin and Hrabar, at 60, 63, 70.
Prof. Tunkin rejects completely any state or states of intermediacy between war and peace, as suggested by Prof. Jessup (“Should International Law Recognize an Intermediate Status between Peace and War?,” 48 A.,.LL. 100–102 (1954)) and Prof. McDougal (“Peace and War: Factual Continuum with Multiple Legal Consequences,” 49 A.,.LL. 67 (1955). Prof. Tunkin bases his rejection on the fear that the acceptance “would result in legally consecrating the situation of international tension.” Tunkin, supra note 296, at 74. It is not quite clear what he means with a “legal consecration.” Apparently he chooses here not to adopt this factual situation for reasons of Soviet policy, although most Soviet theories on international law seem to be based on the idea of legally consecrating factual situations if only they fit into the Soviet philosophy.
Snyder and Bracht, supra note 306, at 67–68.
Id. at 70.
Krylov, “Les Nations Principales du Droit des Gens,” 70 Hague Recueil 442 (1947).
Such an attitude has a destructive and paralyzing effect on the development of international law and puts the non-communist world before grave problems in their dealings with the Soviets. Although by itself the Soviet attachment to general international law seems to create possibilities for peaceful coexistence and peaceful cooperation, their manipulation of international law as an instrument of Soviet policy only, makes the so-called commitment to general international law meaningless. See for a discussion of the Soviet attitude, McDougal and Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order, ” 53 A.,J.LL. 1–29 at 4 (1959).
See Chacko, supra note 295, at 24–28.
Hazard, “Legal Research on Peaceful Coexistence,” 51 A.,J.LL. 65 (1957).
Id. at 64.
Tunkin, supra note 296, at 53.
This does not seem to be the general view in the Soviet Union. Alexeyev, at least, seems to imply that there is a clear distinction between the two when he wrote: “… the Soviet Union and the United States can do more than just coexist.They can cooperate…” Alexeyev, supra note 299, at 20.
For a philosophical discussion of these two terms, see Aaron and Reynolds, supra note 302.
At the 12th and 13th session of the General Assembly of the U.N. two resolutions were tabled by Communist countries which dealt with peaceful coexistence. However, another proposal to use instead the term “peaceful and neighbourly relations” was adopted. See Res. of 14 December 1957 (1236 (XII) and Res. of 10 December 1958 (1301) (XIII). This does not detract anything, however, from the popularity of the term “peaceful coexistence,” for the new term was only adopted as a compromise in order to get support from both camps for the resolution. Even after the adoption of the new term writers and statesmen continue to use “peaceful coexistence.” For instance, a joint declaration of Argentina and Chile on the peaceful settlement of outstanding frontier questions, made at Santiago de Chile on 22 March 1960, stated, inter alia: “… it is easier, less costly and fairer and thus more befitting to build the peace and coexistence of nations upon the permanent values of agreement, justice and right…” LC. J. Communiqué 60/5 (unofficial) of 21 April 1960.
Time and Tide 908 (July 10, 1954).
Cf. Sir Roger Makins who, although preferring the term modus vivendi himself, accepted the fact that the use of “peaceful coexistence” is fully established.
Kennan, “Peaceful Coexistence — A Western View,” 38 For Aff. 171–190 (1960). For a Yugoslavian criticism of the Soviet view and the Soviet reply to this, see Frantsev, “The Policy of Peaceful Coexistence and its Ill-Starred Critic,” Int. Aff. (Moscow) 7880 (May 1959).
Kennan, supra note 319, at 172. Soviet writers today continue to propagate this view disregarding former contradictory statements. Khvostov, for instance writes: “The policy of peaceful coexistence springs from the very nature of Soviet Socialist Society…” Khvostov, supra note 302, at 7. See for identical Chinese views, infra note 339.
Kennan, supra note 319, at 174.
Id. at 177.
Keesings Historisch Archief (Keesing Historical Archives) 11115–11345 (1954).
A joint statement of the two Prime Ministers and two speeches by Chou En-lai speak about the spirit of co-existence and cooperation. People’s China, July 16, 1954 (suppl.) at 4, 6 and 7 (1954).
Id. at 4.
See also Fifield, The Diplomacy of South East Asia 198 (1958).
People’s China, supra note 324, at 6.
Fifield, “The Five Principles of Coexistence,” 52 A.,.I.L. 504–510 (1958). At the 12th session of the General Assembly of the U. N. Gromyko stated that Russia had relations of peaceful existence with India, Indonesia, Afghanistan, Egypt, Syria, Finland, Switzerland and Austria. Min. v. Buitenl. Zaken, De Twaalfde Algemene Vergadering van de V.N. (Neth. Min. of For. Affairs, The Twelfth General Assembly of the U.N.) 145 (1958).
Fifield (supra note 327, at 508) also mentioned as an important event the declaration of Soviet leaders and groups at the 40th Anniversary of the Bolshevik Revolution which supported the idea of peaceful coexistence.
Min. of For Affairs of the Republic of Indonesia, Bulletin of the Asian-African Conference (No. 9) at 6 (1955). Also in Kahin, The Asian-African Conference, 83–85 (1956).
Kahin, supra note 329, at 22–23.
Id. at 25.
Ibid. See also Fifield, supra note 327, at 506–507.
See China and the Asian-African Conference, 41 (Peking, 1955). 334Fifield, supra note 327, at 509.
Kahin, supra note 329, at 18–19.
Theoretically, one could perhaps also discuss the chances of a threat to Asia from the “capatalist” countries. See, however, the discussion of the Soviet accusations against capitalism in Kennan, supra note 319, at 174–177.
See Chacko, supra note 295, at 35.
China and the Asian-African Conference, supra note 333, at 36.
How identical China’s views can be to those of the Soviet Union appears, for instance, from an article on peaceful coexistence by a Chinese writer who repeats almost exactly Krushchev’s remark (supra at 211) when he writes: “From the very first day of its existence the Socialist Chinese People’s Republic, basing itself on the principle of peaceful coexistence, has strongly emphasized good relations with the ”nationalistic“ states of Asia and Africa.” Yi Li-yu, People’s China’s Relations with Asian and African Countries,“ Int. Aff. (Moscow) 75 (1959). See also Ting Hsi-lin, ”New Gains for the Principle of Peaceful Coexistence,“ People’s China, No$116 (Aug. 16, 1954) at 6 (1954).
See Aaron and Reynolds, supra note 302, at 285.
The flexibility (or opportunism) of the Soviet position also appears from Khvostov’s article in which he states, disregarding Lenin’s theory, that “the peaceful character of Soviet Foreign Policy is not of a temporary nature (italics added here), nor is it mere tactics or propaganda. It is a permanent and inalienable feature of Socialist foreign policy…” Khvostov, supra note 302, at 7.
Supra at 2.
See e.g. Mahadevan, “India’s Policy of Non-Alignment,” 2 I. Y.I.A. 89–105 (1953); Morgenthau, “Neutrality and Neutralism,” 11 Y.B. W.A. 47–75 (1957); Denis Healy, Neutralism (1955); Fenwick, “The Legal Aspects of Neutralism, ” 51 A.J.I.L. 71 (1957).
The relationship between Panch Shila and peaceful coexistence is illustrated by President Sukarno of Indonesia who stated, while discussing the Indonesian Pan ja Sila as the guiding principles of his country’s foreign policy: “A non-alignment policy in this present world of division into two antagonistic power blocs is nothing but logically consistent with our higher principles.” Sukarno, “Where do we stand? — Where do we go?”, 1 Indonesia, no. 1, at 4 (1954); see also Fifield, op. cit. supra note 325, at 110.
This Indonesian term, which is derived from Sanskrit, has been adopted by Mr. Nehru to indicate the Five Principles of Peaceful Coexistence, although now spelled in the Sanskrit way. See Fifield, supra note 325, at 510.
Sukarno, supra note 343, at 2–5; Hatta, “Indonesia’s Foreign Policy,” 31 For. Aff. 450 (1953).
Sukarno, “Pantja Sila — The Basic Philosophy of the Indonesian State,” 1 Indonesian Review 15 (1951).
Id. at 16–17; See also Human Relations Area Files, Handbook on Indonesia, Part II at 803 (1956); Yamin, Proklamasi dan Konstitusi Republik Indonesia (Proclamation and Constitution of the Republic of Indonesia) 108–117 (1951).
Prof. Chacko, for instance, comes to the conclusion that all five principles of peaceful coexistence are included in the Charter of the U. N. Chacko, supra note 295, at 39–41. For a discussion of peaceful coexistence in the light of the Charter of the U.N. (before the time that peaceful coexistence became such a popular concept), see Berlia, “International Law and Russo-American co-existence, ” 79 Journal du Droit Int. 27–47 (1952), and Lyon-Caen, “International Law and the Coexistence, in a State of Peace, of States with Opposing Political Systems,” 79 Journal du Droit Int. 49–83 (1952).
Fifield, op. cit. supra note 325, at 110.
See e.g. President Eisenhower at a press conference on June 6, 1956 (quoted by Morgenthau, supra note 342, at 47), and Gaitskell, the British Labour leader in a similar statement (N. r. Times, May 24, 1956, “Gaitskell departs, sees shift on India.”)
Supra Chapter III at 115.
Supra Chapter III at 163.
Aaron and Reynolds, supra note 302, at 296.
Recently much has been written and speculated upon an alleged difference of opinion between the Soviet Union and Communist China on the meaning and implications of peaceful coexistence. The Chinese are said to be unwilling to renounce, in the spirit of peaceful coexistence, the revolutionary wars against imperialism. “Peking on Coexistence,” 38 For. Aff. 676–681 (1960). Whatever the truth of this statement may be, one observation can perhaps be made here in respect of Asia. Whenever the policy of peaceful coexistence runs into difficulties between the leading powers, Asian states often show an inclination to revert to an attitude of neutralism in order to stay out of the cold war.
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Syatauw, J.J.G. (1961). The Asian States in the World Power Process. In: Some Newly Established Asian States and the Development of International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-3192-8_3
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