Membership of the UN and the ICJ

PIL and Human Rights

“Conditions Of Membership In The UN

and

The ICJ Advisory Opinion”

Submitted on:

- March 10, 2014 –

Introduction

The membership to the United Nations was a hotly debated issue till the year 1947. To shed some light on the same, the General Assembly adopted a Resolution[1] on the 17^th of November, 1947, requesting the International Court of Justice to give an advisory opinion, with regards to the conditions of admission of a state as a member of the United Nations.[2]

In the following project, the author will firstly delve into the nature of membership to the United Nations and conditions required to be fulfilled by the Charter. Thereafter, it will look into the lacuna prompting the General Body to ask for the advisory opinion of the International Court of Justice. On analysis of the Court's reasoning, the impact of the same will be discussed. In conclusion, the author will look into the loopholes which have still not been covered, with regards to membership to the United Nations.

Nature of UN Membership

The membership of States to the United Nations is regulated by Article 3 and 4 of the UN charter. These provisions create a distinction between original and subsequent members.[3]

According to Article 3 of the Charter, original members are those who, having participated in the UN Conference[4] or had signed the Declaration[5], had signed and ratified the UN Charter.[6] Though the provisions point to the necessity of the member being a ‘state’, some original members were communities which could not technically be called a state, due to the lack of independence.[7]

On the other end, subsequent members are those whose admission to the Organisation is not by right. They have to fulfil certain conditions, which are mentioned in paragraph 1 of Article 4 and would then have to pass the ‘judgment of the Organisation’.

Conditions for Subsequent Members

The aforementioned provision firstly requires a subsequent member to be a peace loving State. The form of government is not a material consideration, needing to be fulfilled and discrimination based on the same is prohibited under paragraph 7 of Article 2 of the Charter. According to the provision, such a peace loving state has to accept the obligations associated with membership to the UN and should be able and willing to carry out the same.

But the above was not conclusive and the Applicant State was subject to the judgment of the Organization[8]. Such judgment involves a favourable vote of two-third members of the General Assembly on recommendation of the Security Council. This clause led to significant controversies.[9] There were cases where some States were nominated to be the member of the United Nations, even though they didn’t expressly fulfil the criteria laid down by paragraph 1 of Article 4. In yet another set of cases, States fulfilling the criteria, would be rejected by other States, who would were mandated to give their vote. Many a times, a member State would condition its vote, provided that other Applicant States are also given membership to the Organisation.

Need for the Advisory Opinion

As mentioned above, there was a grey area with respect to the individual attitude of each Member towards the admission of an Applicant State. To clear this vacuum, the General Assembly requested the International Court of Justice (ICJ) to give its advisory opinion.

The question mainly revolved around the competence of a member State to subject his vote, with respect to the admission of a State to the UN, upon the fulfilment of certain conditions not expressly provided under the Charter.[10] While giving its opinion, the General Assembly requested the ICJ to keep in mind, Article 4 and 96 of the UN Charter and exchange of views at the 205^th and 206^th meeting of the Security Council.[11]

Nature of Question and Competence of ICJ

There were contentions that the question, having a political nature, falls outside the jurisdiction of the ICJ.[12] However, the same was rejected. The question, which was framed in abstract terms, invited the Court to deal with interpretation of the membership provisions of the Charter, which was its essential judicial task; and thereby had a legal character.[13] Under Article 96 of the UN Charter, the Court is empowered to give its advice on any legal question.

Opinion of the Court

To determine the character of the membership conditions, the literal rule was followed by the court. Firstly, it was held that there was no different between the French and English texts.[14] Article 4, while ascertaining the requisites for admission, also stipulated the reasons for which admission may be refused. It was opined that partial reading of the provision would defeat the purpose of the same and make it arbitrary.

The wordings of the provision indicated towards an exhaustive criteria list and were not meant to serve as an example. Attachment of conditions, unconnected to the ones already stated in the provision, would lead to the loss of its importance. Thus, the court held it not merely as necessary conditions, but as conditions which suffice.[15] However, it could take into account, reasonable factors made in good faith and in connection with the said. Such a measure is implied in the nature of the conditions.

An alternate hypothesis, which was rejected by the court, was that the conditions simply represented a minimum threshold. Other considerations, including those which are political in nature, could outweigh the said provisions and thereby reject membership to an Applicant State, who would have fulfilled the conditions highlighted by Article 4. The Court was of the view that by such an interpretation, indefinite discretion would have been bestowed upon the Members of the Organization, which would be inconsistent with the very character of paragraph 1 of Article 4, aimed at regulating the admission of new States.[16]

Thus, the text was considered to be unambiguous in its meaning and intention; and in such a scenario, the Court was not duty bound to resort to preparatory work, in consonance with the accepted practice of the Permanent Court of International Justice.[17]

A contention was raised that the fulfilment of conditions, provided for in paragraph 1 of Article 4, is necessary before recommendation of a State for membership, but the same does not stop the existing members from bypassing the same, using factors such as political expediency. Addressing the same, the court opined that paragraph 1 deals with the substantive laws, while paragraph 2 simply dealt with the admission procedure. On referring to the ‘recommendation’ of the Security Council and ‘decision’ of the General Assembly, the Court opined that the function of the two organs, in this respect, was only to decide whether the applying State shall be granted membership, after having proven that the prescribed conditions have been fulfilled or not.[18]

To add support to the same, the Court looked at Rule 60 of the Provisional Rules of Procedure of the Security Council. The first paragraph of the same said that the Security Council would itself find out whether the Applicant State fulfilled the requirements as stated in Article 4 and then only decide whether or not to recommend the same for membership.[19]

However, a contention with respect to freedom of appreciation, under Article 24 was raised. Considering the political responsibilities of the Security Council, it was contended that there is a necessity to give the Security Council as well as the General Assembly, unhindered freedom of appreciation, with respect to admissions. While rejecting the same, the Court opined that Article 24, due to its general and open-ended nature, was not in a position to affect the well drafted conditions, as stipulated in Article 4 of the Charter.

On delivering its opinion with respect to the actions of members consenting to the admission of a state, dependant on admission of other state, the Court opined that such action clearly took into account, a new consideration, which was most certainly unconnected to those laid down in Article 4 and thereby could not be held to be valid. It was opined, on a careful interpretation of Article 4, that every application should be evaluated separately.[20] If applications of two or more States were to be examined in a collective manner, it would be impossible to ascertain that a particular State fulfilled all the necessary conditions and would make it inconsistent with the spirit of Article 4.

Thus, the court, by majority strength[21], opined that when a member of the Organization is called upon to vote regarding admission of a State, either in the Security Council or the General Assembly, it is not allowed to make its decision, subject to conditions not provided in Article 4.

Present Lacuna

Even after the well-reasoned opinion given by the ICJ, there are some shortcomings with regards to the conditions of membership to the UN.

The term ‘peace-loving’ as used in Article 4, is extremely vague. It is impossible for member states to determine its exact meaning and thereby vote on the same. In addition to that, it is superfluous, since there can be no basis for determining the love of a state towards peace, than the fact that it commits itself to the obligations of the Charter. Moreover, such a clause is applicable to only subsequent members and not original members.

The Charter accepts that no state can be made a member of the United Nations without its will. Yet, the Charter does not provide for any procedure through which the State can communicate such a will. It has even been observed that the Charter imposes some kind of ‘compulsory membership’, in certain scenarios. For example, the obligations under Paragraph 6 of Article 2, for maintenance of international peace and security, can be imposed even on non-members.

Lastly, the Charter contains provisions for expulsion or voluntary withdrawal of member States. However, the Charter seems to be inconclusive when it comes to re-entry of such member States. According to Article 4, only the non-original members can re-enter, making it impossible for an original member to re-enter the United Nations.

Conclusion

Thus, the inherent distinction created by the United Nations, with respect to conditions of membership was analysed. Subsequently, the advisory opinion of the International Court of Justice was looked into, which cleared the grey area with respect to the conditions needed to be kept in mind and those which could be imposed by member states while voting for admission of States, either in the Security Council or the General Assembly. In the end, it was seen as to how certain membership or re-entry conditions were still obscure and how liabilities associated with membership to the Organization, was imposed on non-members. Only if these shortcomings are addressed, can we expect the admission of States to be just, fair and all-inclusive.

[1] Resolution 113 (II) B, Admission of New Members, General Assembly, 2nd Sess., Official Records

[2] Admission of a State to the United Nations (Ch., Art. 4), Advisory Opinion, I. C. J. Reports 1947-1948, p. 57

[3] The Report of the Rapporteur of Committee I/2 on Chapter III (Membership), June 24, 1945, p.2

[4] United Nations Conference on International Organization at San Francisco

[5] Declaration by United Nations of January 1, 1942

[6] Charter of the United Nations, Members, Last seen: 9 March 2014, Available at: < www.icj-cij.org/documents/index.php?p1=4&p2=1>

[7] India would be the perfect example of the same. At that time, it was a British Colony.

[8] Mentioned in paragraph 2 of Article 4

[9] Mentioned in Article 18 of Chapter IV

[10] Advisory Opinion of the International Court of Justice Concerning Conditions of Admission of a State to Membership in the United Nations, International Organization, Vol. 2, No. 3 (September, 1948), pp. 568-573

[11] International Court of Justice, Conditions of Admission of a State to Membership in the United Nations, General List No. 3, May 28, 1948

[12] Yuen Li Liang, Notes on Legal Questions Concerning the United Nations, The American Journal of International Law, Vol. 43, No. 2 (April, 1949), pp. 288-303.

[13] supra note (11)

[14] The International Law Quarterly, Conditions of Admission of a State to Membership in the United Nations, Vol. 2, No. 3 (Autumn, 1948), pp. 483-510.

[15] supra note (10)

[16] Leo Gross, Progress Towards Universality of Membership in the United Nations, The American Journal of International Law, Vol. 50, No. 4 (October 1956), pp. 791-827

[17] supra note (11)

[18] William W. Bishop, Jr., Conditions of Admission of a State to Membership in the United Nations, The American Journal of International Law, Vol. 42, No. 4 (Oct., 1948), pp. 927-934

[19] supra note (11)

[20]

[21] Nine votes to six