¹ The political situation may be compactly summarized in a quotation from Professor Coupland:

“If no more than the Central Indian States and Hyderabad were excluded from the Union, the United Provinces would be almost completely cut off from Bombay and Bombay completely from Sind. The strategic and economic implications are obvious enough.… India could live if its Moslem limbs in the North-West and North-East were amputated, but could it live without its heart?” (Quoted from Government of India, White Paper on Hyderabad, 1948, p. 3.)

A short discussion of this aspect of the question may be found in Phillips Talbot, “Kashmir and Hyderabad,” in World Politics, Vol. 1 (1949), pp. 321-322.

There is little doubt that Hyderabad must be part of India; and the political “realist” may therefore be impatient with the “legalism” of this article. After all, he would say, the Security Council is a political body. However, the Security Council failed as much in the political sense as in the legal sense to act; it simply made no effort to solve the problem put before it. I believe, therefore, that I am justified in calling this case the worst failure of the United Nations—whether looked at from a political or a legal viewpoint. The use of force by India was unnecessary; she could have achieved a satisfactory solution without this violation of the Charter. A solution could easily have been reached by the Security Council at the time of the intervention of Pakistan in May, 1949.

² U.N. Doc. S/986, Security Council, Official Becords, 3rd Tear, Supp., September,1948, p. 5.

³ U.N. Docs. S/998 and S/1000, Hid., pp. 6, 7. The Secretary General, doubtless uncertain as to the status of Hyderabad, preceded each of these documents with the words:“The Secretary General, not being in a position to determine whether he is required by the rules of procedure to circulate this communication, brings it to the attention of the Security Council, for such action as the Council may desire to take.”

⁴ L. M. Goodrich and E. Hambro, Charter of the United Nations: Commentary and Documents (2nd and rev. ed., Boston, 1949),p. 239, and discussion under Art. 35; A.Salomon, L'O.N.U. et la Paix (Paris, 1948), p. 113; C. Eagleton, “The Jurisdiction of the Security Council over Disputes,” this JOURNAL, Vol. 40 (1946), pp. 520-522.

⁷ S.C., O.E., 4th Tear, No. 28, 425th meeting, p. 7. This statement ignores the effect of the Indian Independence Act which, as we shall see, authorized independence for the Princely States if desired. The “Stand Still Agreement” did not grant independence,but confirmed itimplicitly; and ‘ ‘ the arrangements which followed i t ‘ ‘ were invasion and military government. Nor does it follow from the facts of geography that Hyderabad should legally be regarded as a domestic concern by India.

⁸ L.R., [1894] 1 Q.B. 149.

⁹ In which the House of Lords said: “ It is obvious that for sovereignty there must be a certain amount of independence, but it is not in the least necessary that for sovereignty there should be complete independence.” L.E., [1924] A.C. 797.

¹⁰ A vague term by which Britain sought to reconcile her admission of the sovereignty of the Princely States with the actual fact of her control over them. As to the status of the “Princely States,” see Taraknath Das, Sovereign Eights of Indian Princes(Madras, 1925); E. Thompson, The Making of the Indian Princes (Oxford, 1944). In an article in this JOURNAL, Vol. 43 (1949), pp. 57-72, Dr. Das argues that paramountcy belonged always to the Government of India, whatever authority that might be at a given moment.

¹¹ 26 Geo. 5, Ch. 2 (Aug. 2, 1935).

¹² In the Memorandum by the Mission on States' Treaties and Paramountcy, 1946,Cmd. 6835. This was repeated by the Prime Minister July 10, 1947, House of Commons,Official Eeport, 439 H.C. Deb. 55, c. 2451; and by the Secretary of State for India on July 16, 1947, House of Lords, Official Report, 150 H.L. Deb. 5s, c. 811.

¹³ 10 and 11 Geo. 6, Ch. 30 (July 18, 1947).

¹⁴ House of Lords, Official Eeport, 150 H.L. Deb. 5s, c. 812.

¹⁵ House of Commons, Official Eeport, 439 H.C. Deb. 5s, c. 2451.

¹⁶ Quoted from Government of India, White Book on Hyderabad, 1948, Appendix I I;found also in the Hyderabad official documents, Hyderabad's Eelations with the Government of India (Karachi, April, 1948), Vol. I, p. 27. The principal documentary sources of the two States on this question are as follows:For India: White Paper on Indian States (Printed in India by the Manager Govt, of India Press, New Delhi, July, 1948); White Paper on Hyderabad, 1948.For Hyderabad: Hyderabad's Belations with the Dominion of India (Prepared by the Government of His Exalted Highness, the Nizam of Hyderabad, and Berar, Printed at Burns Boad, Karachi (which is really the first of three volumes) ; Vol. II, June, 1948;Vol. I l l , August, 1948). There are also two larger volumes, The Complaint of Hyderabad against the Dominion of India; and Appendices to the Complaint of Hyderabad against the Dominion of India. The latter two volumes were distributed to members of the Security Council (see S/1001).

¹⁷ House of Commons, Official Eeport, 454 H.C. Deb. 5s, c. 1726-1733, July 30, 1948.

¹⁸ Thus Dr. Das, though he argues that the Government of India Act of 1935 “ d i d not provide for any change of status of Indian Princes in relation to the Suzerain Power,the Government of I n d i a , “ quotes the Cabinet Mission to India of 1946 “ t h a t the Indian States should be free to accede to either Pakistan or the Union of India, or to remain outside of both Dominions,” and concludes that “ b y the Independence of India Act the Government of India was divested of paramountcy.” Taraknath Das, “The Status of Hyderabad during and after British Eule in I n d i a , “ this JOURNAL, “Vol. 43(1949), pp. 68, 69, 70.

¹⁹ Government of India, White Paper on Indian States, p. 12. See pp. 3, 5, 6, 10 and elsewhere for similar statements.

²⁰ Ibid., p. 49.

²¹ Ibid., p. 26.

²² U.N. Doc. S/P.V. 227, p. 32; see also p. 86.

²³ S.C, O.R., 4th Year, No. 28, 425th meeting, p. 6. Italics added.

²⁴ The formal document embodying the Complaint of Hyderabad puts forward an argument (p. 26) that recognition is merely declaratory of the existing fact of statehood,which apparently derives from the writings of Professor Lauterpacht. See his Recognition in International Law (Cambridge, 1947), Ch. I l l and passim. “Whether or not a government exists clothed with the power to enforce its authority within its own territory,obeyed by the people over whom it rules, capable of performing the duties and fulfilling the obligations of an independent power, able to enforce its claims by military force, is a fact, not a theory.” Wulfsohn v. E.S.P.S.R., 234 N. Y. 372 (1923).

²⁵ See the discussion in Lauterpacht, op. cit., Ch. XXI, and his references to the Ethiopian case at pp. 343, 418.

²⁶ See U.N. Docs. S/P.V. 258, Feb. 27, 1948, pp. 2-35; S/P.V. 262, March 5, 1948,pp. 11-35; S/P.V. 274, March 24, 1948, pp. 47-51.

²⁷ S.C., O.E., 2nd Tear, No. 74, 181st meeting, p. 1924. See also No. 67, 171st meeting,p. 1628.

²⁸ Ibid., 181st meeting, p. 1930.

²⁹ S.C., O.E., 2nd Tear, No. 74, p. 1940.30 S.C., O.E., 4th Year, No. 28, 425th meeting, p. 14.

³¹ Hyderabad's Relations with the Dominion of India, p. 1.

³² The special position of Hyderabad was at various times acknowledged by the Governor General of India. On August 15, 1947, he said to the Constituent Assembly:“Hyderabad occupies a unique position in view of its size, population and resources,and it has its special problems.” At the same time, the Governor General consistently and firmly urged that it accede to India rather than remain independent. Complaint of Hyderabad, Volume ofAppendices, p. 22. See also pp. 19-20, 29.

³³ Complaint of Hyderabad, Appendices, pp. 16, 23-28, 29.

³⁴ Ibid., pp. 31, 112. The “Stand Still Agreement” may be found in ibid., pp. 40-41;or in Government of India, White Paper on Hyderabad, 1948, Appendix II, p. 45.

³⁵ Complaint of Hyderabad, Appendices, p. 41.

³⁶ The view of the Government of India as to the EazaTchars may be found in the White Paper on Hyderabad, Ch. VII,entitled “Eazakhars: A Menace to Security.”

³⁷ S.C., O.E., 3rd Year, No. 112, 360th meeting, p. 24. Modern propaganda describes those who defend their government against attack as “war criminals” or “gangsters.”The effect of the Eazakhars was not to change, but to support the Nizam's ardent desire for independence. The Nizam appears to have been a weak character, and it is possible that without this backing he might have been more willing to make concessions to India. The London Times reported, at the time of the Indian invasion, that the fanaticism, military equipment and organization, and offensive spirit of the Bazalchars“have been greatly exaggerated by Indian propagandists” and that only 5% of them had old guns, the rest being armed with staves.

³⁸ Complaint of Hyderabad, Appendices, pp. 85, 88, 156.

³⁹ In the House of Commons, Col. Gomme-Duncan, describing this conference, spoke of “the extraordinary threat by the Governor General of India.” House of Commons,Official Eeport, 454 H.C. Deb. 5s, c. 188, Sept. 15, 1948.

⁴⁰ Complaint of Hyderabad, p. 88, and Appendices volume, p. 83.41 ilbid. (Appendices), pp. 145 and 128.

⁴² Complaint of Hyderabad, p. 91, and Part VI in general. See also House of Commons,Official Eeport, Vol. 454, c. 1723-4, 1738.

⁴³ Complaint of Hyderabad, Appendices, pp. 41-42.

⁴⁴ S.C, O.R., 4th Year, No. 28, 425th meeting, pp. 2-3. Sir Zafrullah Khan asked,“Why does a government try to getanti-aircraft guns?” “The attempt to obtain anti-aircraft guns is an eloquent commentary on what Hyderabad feared and what it was trying to provide for.” Ibid., pp. 25-26.

⁴⁵ Complaint of Hyderabad, Appendices, p. 105.

⁴⁶ White Paper on Hyderabad, p. 36; Hyderabad's Belations with the Government of India, Vol. I l l , p. 19.

⁴⁷ Complaint of Hyderabad, Appendices, p. 111.48 Ibid., pp. 129, 131, 139, 143-144.

⁴⁹ Complaint of Hyderabad, p. 17; S.C., O.E., 3rd Year, No. 112, 360th meeting, p. 18.

⁵⁰ Complaint of Hyderabad, Appendices, pp. 100, 104-105; see also pp. 143-144.

⁵¹ Complaint of Hyderabad, p. 16.

⁵² The President, at the 425th meeting, dryly remarked: “ I observe that, in accordance with custom, the representative of India, in dealing with the question of jurisdiction,has spoken at some length on the substance of the matter.” S.C., O.E., 4th Year,No. 28, 425th meeting, p. 8. Similarly, at the 360th meeting, the President informed the representative of Hyderabad that the subject before the Council was not the “whole substance of the question” but the validity of his credentials. Nawab Moin insisted that the validity of his credentials could not be separated from a review of the situation and was allowed to speak.

⁵³ S.C., O.E., 3rd Year, No. 109, 357th meeting, pp. 8-11. It is difficult to see how the Council could decide its own competency, or decide whether it might wish to discuss an item unless that item had been put upon the agenda so that sufficient information and discussion would be possible to reach a decision. This seemed to be the prevailing viewpoint; and, though the Council has never ruled upon the point, it has always proceeded to discussion of an item and frequently as to its substantive merits, without ever deciding upon the preliminary point as to whether the item was properly upon its agenda.

⁵⁴ S.C., O.B., 3rd Year, No. H I , 359th meeting, p. 4. The United States has not followed up this fundamentally correct statement at any time since, nor has any other nation.

⁵⁵ S.C., O.E., 3rd Year, No. I l l , 359th meeting, pp. 7-9.

⁵⁶ Ibid., pp. 9-11. On a previous occasion, in the second Iranian case, the Council had asserted its right to maintain a question upon its agenda even though the complaining party had asked that it be withdrawn.

⁵⁷ 8.C., O.R., 3rd Year, No. 112, 360th meeting, pp. 3-4.58 salbid., pp. 5-13.59 Ibid., pp. 13-20.

⁶⁰ ma., pp. 20-28.

⁶¹ S.C., O.R., 3rd Tear, No. 127, 382nd meeting, pp. 27-28, referring to Docs. S/1084 and S/1089. In the latter communication, dated Nov. 24, 1948, Sir Eamaswami Mudaliar had said: ‘ ‘ There no longer exists any reason for the Government of India to maintain a delegation in Paris for dealing with the Hyderabad question” because the “complaint which Hyderabad had never any right to make now stands expressly withdrawn.”

⁶² Ilid., p. 29.

⁶³ S.C., O.E., 3rd Year, No. 128, 383rd meeting, pp. 2-5, 6-7. To be fair, it should be said that Eule 10 is not always observed, since it would have the effect of putting all unfinished business of the Council upon the agenda at each meeting.

⁶⁴ The Deputy Prime Minister of India, Sardar Patel, speaking to the Parliament March 17, 1949, said: “There are still people who believe that Hyderabad is still on the agenda of the Security Council…. But Hyderabad is a settled fact which no one can alter. It is a domestic affair and India is powerful enough to resist anybody. Times of India, March 18, 1949.

⁶⁵ S.C., O.B., 3rd Tear, No. 129, 384th meeting, Dec. 15, 1948, pp. 39-40.

⁶⁶ 66 Ibid., pp. 40-42.

⁶⁷ 67 See, as to this, U.N. Doe. S/1380.

⁶⁸ 68 Times of India, Nov. 25, 1949.

⁶⁹ Mimeographed copies of the letter were distributed to Members by the representative of Hyderabad.

⁷⁰ When Nawab Moin Nawaz Jung found that Hyderabad was in danger of being conquered, he transferred a large sum of Hyderabad State money into a special fund in a British bank. This was done in his capacity as Finance Minister and, as a result of his foresight, India was unable to take over this money. According to newspaper reports, India has now instituted suit (in the name of the Government of Hyderabad)in a British court to obtain the money. The claim must be based upon the premise that conquest gives title, for title has been acquired in no other way. In such cases, the court relies heavily upon the advice of the foreign office, and it will be interesting to see what this advice will be. Previous precedents indicate that India cannot be regarded as the legal successor of the State of Hyderabad unless the British Government has given de jure recognition to the conquest. (See the case of Haile Selassie v. Cable and Wireless, Ltd., this JOURNAL, Vol. 33 (1939), p. 580; referred to in note 25, supra).In any case, a decision to turn the money over to India would give legal effect to a transfer of title accomplished by the use of force contrary to the Charter of the United Nations.

⁷¹ ‘ ‘ The Hyderabad complaint remains on the agenda of the Security Council and India has been rewarded for her ‘police action’ with a seat on that body—a reward that the Dutch could not have expected in their wildest dreams for their repeated ‘police actions' in Indonesia. Inscrutable indeed are the ways of Western democracy—and of its most boosted compeer, the Indian.” Editorial from the newspaper, Dawn, Karachi,Nov. 12, 1949.

⁷² Proceedings, 1949, p. 134; for committee's conclusions, see this JOUENAL, Vol. 44(1950), p. 154.