856D.00/8–1547
Memorandum by Mr. Ben Hill Brown, Jr., of the Office of the Legal Adviser, to the Director of the Office of Special Political Affairs (Rusk)
Subject: Opinion on International Character of the Republic of Indonesia.96
You have asked this Office for an opinion on the question of whether the Republic of Indonesia constitutes a “state” in the international sense.
A state in the international sense is generally described as a recognized member of the family of nations, an international person. Authorities differ in respect to the qualifications for such statehood, but there is general agreement on certain basic requirements. As expressed by Hyde, the following qualifications are necessary:97
“First, there must be a people …
“Secondly, there must be a fixed territory which the inhabitants occupy …
“Thirdly, there must be an organized government exercising control over, and endeavoring to maintain justice within, the territory.
“Fourthly, there must be a capacity to enter into relations with the outside world. … Independence is not essential. … The requisite personality, in the international sense, is seen when the entity claiming to be a State has in fact its own distinctive association with the members of the international society, as by treaties, which, howsoever concluded in its behalf, mark the existence of definite relationships between itself and other contracting parties …
“Fifthly, the inhabitants must have obtained a degree of civilization, such as to enable them to observe … those principles of law which are deemed to govern the members of the international society in their relations with each other”.
Some authorities disagree with the statement that independence is not required, holding any state not fully independent, to be an international person for some purposes only.
The territory of the Republic of Indonesia for a number of years before the war was generally considered a colony of The Netherlands. Since the war, it has asserted its independence and has been negotiating with the Government of the Netherlands for recognition of independence.
Negotiations resulted on November 15, 1946 in the initialling of a draft agreement by representatives of the Netherlands and of the [Page 1031] Republic of Indonesia. The agreement called for submission to the respective parliaments for approval, but it is understood that it was signed by executive act on March 25, 1947, by both parties after cabinet, rather than parliamentary approval. This agreement offers the colonies a dominion-like status, as a federated entity, in which the Republic would be one of the states, other territories of the colonies to be constituted into at least two major states, and the entity to be known as the United States of Indonesia (USI). The agreement further provides for a Netherlands-Indonesian Union consisting of the Kingdom of the Netherlands and the USI, both to be established, if possible, by January 1, 1949. The USI is to become a “sovereign democratic state”, and the Netherlands is to promote its admission to the United Nations after its establishment and the formation of the Union. The agreement provides for further consultation toward the establishment of the USI and the formation of the Union.
The question of whether the agreement may be considered as having come into effect at the time of signing must be answered in the affirmative. Although it, by its terms, requires submission to the parliaments, the subsequent act of signing and the decision that reference to parliament was unnecessary must be interpreted as amending that part of the agreement. Further, it is not for a foreign nation to question the authority of the executive.
An examination of the agreement leads to the conclusion that even though in effect, it does not change immediately the legal relationship between Indonesia and the Netherlands. It contemplates a change, and binds the parties to work to effect the change. However, many of its terms are vague and open to disagreement in interpretation. It may well be called a modus vivendi. It is useful for the purposes of this opinion primarily as an expression of the intention of the parties.
In examining the Indonesian situation in the light of Professor Hyde’s qualifications which, on the question of sovereignty, are more favorable to Indonesia than those of other authorities, we may conclude that the first, second and fifth qualifications are met. With reference to the third, the situation is questionable. The Netherlands, in the agreement, recognize the Government of the Republic of Indonesia as exercising de facto authority over Java, Madoera and Sumatra. It does not, however, recognize it as the legal authority for those areas, and does not admit that the authority of the Netherlands no longer exists. Indeed, if this were true, there would be no need for many provisions of the agreement. This situation is apparently accepted by the Republic.
On the fourth qualification, it is believed Indonesia is even further from meeting the requirements. While it is true that certain Arab [Page 1032] states have recognized the Republic diplomatically, this is by no means conclusive. Recognition of a state is not purely a legal act, but in part political. While recognition is a factor, it is not determinative and must be considered among other factors. Further, the recognition by a few small states is overshadowed by the failure of the major nations and the majority of the smaller nations to extend recognition. Looking at the agreement, it appears that even if all intended acts were accomplished, the Republic would not have “its own distinctive association with the members of the international society.” The agreement contemplates it becoming one of three or more parts of the United States of Indonesia, a federated (rather than a confederated) entity. Significant also is the undertaking of the Netherlands (accepted by Indonesia) to promote the admission to the United Nations Organization of the United States of Indonesia, not the Republic of Indonesia. It is understood that one of the present disputes is over the Republic’s objection to this subordinated position. The conclusion reached in this opinion must be based on an examination of all the facts, however, and not on a disputed claim of one party.
It is the opinion of this Office, therefore, that the Republic of Indonesia is not a state in the sense of being an international person. This opinion does not preclude a later contrary decision in the event of substantial changes in the situation.