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Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, [1948] ICJ Rep 57; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, [1950] ICJ Rep 4

James D. Fry and Agnes Chong

Relevance of the Advisory Opinions

Statehood traditionally has been determined by reference to the Montevideo Convention criteria of ‘a) a permanent population; b) a defined territory; c) government; and d) [the] capacity to enter into relations with the other states.’1 However, over the past few decades, many commentators have come to see collective recognition through UN membership as the main avenue to statehood.[1] [2] The extraordinary efforts emerging states undertake to gain UN membership in recent years support this perceived shift.[3] Only states can be UN members, as UN Charter art. 4 indicates, and so UN membership is the ‘badge’ of statehood, or so the argument goes. In light of this shift to collective recognition through UN membership, the two ICJ advisory opinions that deal with UN membership gain particular importance inasmuch as they can be seen as clarifying some of the finer points of law in this area. In responding to the political stalemate in the Security Council over admission of new UN members, the ICJ insisted on adhering to the legal rules of the UN Charter concerning admission, which is one of the main lessons of these advisory opinions. However, in the end, politics ultimately prevailed over the law when resolving the stalemate, which might be the more important lesson learned from these two advisory opinions.

I. Facts of the cases

According to the UN Charter, a state may become a UN member if it meets both the substantive and procedural requirements of UN Charter art. 4:

  • (1) Membership in the United Nations is open to all other peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations;
  • (2) The admission of any such State to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

Despite the putative standards contained in this provision, the Cold War reality led to a situation whereby member states cast votes in favour of admission of applicant states belonging to the same political camp and against those in the opposing camp, with the ultimate outcome being that more were rejected than admitted. This was the situation until anti-colonialism and anti-racism became more acceptable once colonies started winning their independence in the 1950s.

The inability of the Security Council’s permanent members to come to an agreement to admit certain new members to the UN dates back to the 57th Meeting of the Security Council on 29 August 1946.[4] At this meeting, the Soviet Union used its veto to block the admission of Jordan, Ireland, and Portugal, while the United Kingdom and the United States vetoed the admission of Albania and Mongolia.[5] At the same meeting, the Security Council recommended Afghanistan, Sweden, and Iceland to be admitted to the UN, and subsequently the General Assembly resolved to admit the three states to the UN after receiving the report of the First Committee’s approval of the Security Council’s recommendation.[6] As for those states that had their application for UN membership rejected, the General Assembly recommended in the same resolution for the Security Council to reconsider these applications on their respective merits and in accordance with UN Charter art. 4. At the Security Council’s 186th Meeting on 18 August 1947, and at other times, the UN Secretary General declared support for admission of all the applicants and urged the Security Council to recommend their admission.[7] At that meeting, the Security Council reconsidered the applications of Albania, Mongolia, Jordan, Ireland, and Portugal, and none were recommended for admission, with the same voting outcome as the previous year.[8] The Security Council also considered the applications of Austria, Bulgaria, Hungary, Italy, Romania, Yemen, and Pakistan.[9] The latter two states were recommended for admission and the others were not.10

Following the outcome of the Security Council’s 186th Meeting, the General Assembly at its 118th Plenary Meeting on 17 November 1947 determined that Ireland, Portugal, Jordan, Italy, Finland, and Austria all were peace-loving states and were willing and able to carry out the obligations of the UN, but their admission applications were nonetheless rejected based on the objection of only one permanent member (the Soviet Union), and so the General Assembly requested that the Security Council reconsider the applications of these states again.[10] The Security Council considered the applications of Hungary, Romania, Bulgaria, Italy, and Finland at its 204th, 205th, and 206th Meetings from 25 September 1947 to 1 October 1947/2 and once again, the Security Council did not recommend admission for any of these applicants.^

After the failure of these applicants to secure the requisite votes for admission and the continuing differences of opinion of the Security Council and the General Assembly, a special report of the proceedings was discussed in the General Assembly and its First Committee/4 Belgium drafted a proposal to request an advisory opinion from the ICJ on the matter, which received endorsements from El Salvador, Greece, and the United Kingdom/5 Poland, the Soviet Union, Australia, China, and India objected to Belgium’s proposal on the basis that art. 4 of the Charter was sufficiently clear and, therefore, did not warrant an advisory opinion/6 The expectation of Belgium’s proposal appears to have been that the ICJ would clarify the criteria to be considered by member states when voting on admission applications. Regardless, the General Assembly ultimately agreed to request an advisory opinion from the ICJ/7 which eventually became the ICJ’s First Admissions Advisory Opinion.

The General Assembly at the third session of its 177th Plenary Meeting on 8 December 1948 reaffirmed the ICJ’s decision in the First Admissions Advisory Opinion and recommended the members of the Security Council and General Assembly vote in accordance with the opinion/8 Unfortunately, the First Admissions Advisory Opinion was not implemented to the extent that it should have been due to the continuing tensions between the Western and Eastern blocs during this time/9 which led to a request for another advisory opinion that eventually became the Second Admissions Advisory Opinion/0

II. The legal questions

In Resolution 113(III) of 17 November 1947, the UN General Assembly requested an ICJ advisory opinion that addressed the following questions:

Is a member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph I of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?

In Resolution 296(IV), 22 November 1949, the UN General Assembly requested another advisory opinion that addressed the following question:

Can the admission of a State to membership in the United Nations, pursuant to Article 4, paragraph 2, of the Charter, be effected by a decision of the General Assembly when the Security Council has made no recommendation for admission by reason of the candidate failing to obtain the requisite majority or of the negative vote of a permanent Member upon a resolution so to recommend?

III. Excerpts

A. First Admissions Advisory Opinion

U][11]

[22] Having been asked to determine the character, exhaustive or otherwise, of the conditions stated in Article 4, the Court must in the first place consider the text of that Article. [...] The text of [paragraph 1 of Article 4], by the enumeration which it contains and the choice of its terms, clearly demonstrates the intention of its authors to establish a legal rule which, while it fixes the conditions of admission, determines also the reasons for which admission may be refused; for the text does not differentiate between these two cases and any attempt to restrict it to one of them would be purely arbitrary.

[23] The terms “Membership in the United Nations is open to all other peace-loving States which ...” [...], indicate that States which fulfil the conditions stated have the qualifications requisite for admission. The natural meaning of the words used leads to the conclusion that these conditions constitute an exhaustive enumeration and are not merely stated by way of guidance or example. The provision would lose its significance and weight, if other conditions, unconnected with those laid down, could be demanded. The conditions stated in paragraph 1 of Article 4 must therefore be regarded not merely as the necessary conditions, but also as the conditions which suffice.

[24] Nor can it be argued that the conditions enumerated represent only an indispensable minimum, in the sense that political considerations could be superimposed upon them, and prevent the admission of an applicant which fulfils them. Such an interpretation would be inconsistent with the terms of paragraph 2 of Article 4, which provide for the admission of [...] ‘any such State’. It would lead to conferring upon Members an indefinite and practically unlimited power of discretion in the imposition of new conditions. Such a power would be inconsistent with the very character of paragraph 1 of Article 4 which, by reason of the close connexion which it establishes between membership and the observance of the principles and obligations of the Charter, clearly constitutes a legal regulation of the question of the admission of new States. To warrant an interpretation other than that which ensues from the natural meaning of the words, a decisive reason would be required which has not been established.

[25] Moreover, the spirit as well as the terms of the paragraph preclude the idea that considerations extraneous to these principles and obligations can prevent the admission of a State which complies with them. If the authors of the Charter had meant to leave Members free to import into the application of this provision considerations extraneous to the conditions laid down therein, they would undoubtedly have adopted a different wording.

[...]

[29] Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article. The taking into account of such factors is implied in the very wide and very elastic nature of the prescribed conditions; no relevant political factor—that is to say, none connected with the conditions of admission—is excluded.

[30] It has been sought to deduce either from the second paragraph of Article 4, or from the political character of the organ recommending or deciding upon admission, arguments in favour of an interpretation of paragraph I of Article 4, to the effect that the fulfilment of the conditions provided for in that Article is necessary before the admission of a State can be recommended or decided upon, but that it does not preclude the Members of the Organization from advancing considerations of political expediency, extraneous to the conditions of Article 4.

[...]

B. Second Admissions Advisory Opinion

[...]

[15] The Court is ... called upon to determine solely whether the General Assembly can make a decision to admit a State when the Security Council has transmitted no recommendation to it.

[...]

[17] The Court has no doubt as to the meaning of this text [Article 4, paragraph 2 of the UN Charter]. It requires two things to effect admission: a ‘recommendation’ of the Security Council and a ‘decision’ of the General Assembly. It is in the nature of things that the recommendation should come before the decision. The word ‘recommendation’, and the word ‘upon’ preceding it, imply the idea that the recommendation is the foundation of the decision to admit, and that the latter rests upon the recommendation. Both these acts are indispensable to form the judgment of the Organization to which the previous paragraph of Article 4 refers. The text under consideration means that the General Assembly can only decide to admit upon the recommendation of the Security Council; it determines the respective roles of the two organs whose combined action is required before admission can be effected: in other words, the recommendation of the Security Council is the condition precedent to the decision of the Assembly by which the admission is effected.

[...]

[20] The conclusions to which the Court is led by the text of Article 4, paragraph 2, are fully confirmed by the structure of the Charter, and particularly by the relations established by it between the General Assembly and the Security Council.

[21] The General Assembly and the Security Council are both principal organs of the United Nations. The Charter does not place the Security Council in a subordinate position. Article 24 confers upon it ‘primary responsibility for the maintenance of international peace and security’, and the Charter grants it for this purpose certain powers of decision. Under Articles 4, 5, and 6, the Security Council co-operates with the General Assembly in matters of admission to membership, of suspension from the exercise of the rights and privileges of membership, and of expulsion from the Organization. It has power, without the concurrence of the General Assembly, to reinstate the Member which was the object of the suspension, in its rights and privileges.

[22] The organs to which Article 4 entrusts the judgment of the Organization in matters of admission have consistently interpreted the text in the sense that the General Assembly can decide to admit only on the basis of a recommendation of the Security Council. [...]

[23] To hold that the General Assembly has power to admit a State to membership in the absence of a recommendation of the Security Council would be to deprive the Security Council of an important power which has been entrusted to it by the Charter. It would almost nullify the role of the Security Council in the exercise of one of the essential functions of the Organization. It would mean that the Security Council would have merely to study the case, present a report, give advice, and express an opinion. This is not what Article 4, paragraph 2, says.

[...]

[26] While keeping within the limits of a Request which deals with the scope of the powers of the General Assembly, it is enough for the Court to say that nowhere has the General Assembly received the power to change, to the point of reversing, the meaning of a vote of the Security Council.

[27] In consequence, it is impossible to admit that the General Assembly has the power to attribute to a vote of the Security Council the character of a recommendation when the Council itself considers that no such recommendation has been made.

IV. Commentary

This commentary starts by highlighting the obvious connection between these two advisory opinions—both involve the same general controversy in the UN concerning the admission of new states to the UN. Surprisingly, only a few commentators discuss both advisory opinions in detail in the same piece, with those who make a connection between the two focusing either on the fact that both advisory opinions were an attempt to circumvent the Soviet veto,22 or on the fact that the ICJ in both advisory opinions refused to accept the argument that it could not handle the question posed because of the question’s political sensitivity.” Commentators sometimes cite the First Admissions Advisory Opinion for the notion that the intent of a provision of the UN Charter must be given its effect, inasmuch as the ICJ required the application of all of the art. 4(1) conditions for membership, or else there would have been no point for the drafters of that provision to have inserted those conditions.” Commentators sometimes cite the Second Admissions Advisory Opinion for representing the teleological approach to interpreting the UN Charter.25

Regardless, this commentary first criticizes the ICJ for its overly narrow focus in both advisory opinions. This commentary then explores how having a broader focus—one that reflected the actual debates going on in the Security Council— could have enabled the ICJ to provide a better response to the situation. In particular, the ICJ should have focused on whether the principle of universality applied to such admissions decisions and whether UN member states should have discretion when deciding on membership applications. Indeed, these were some of the main issues of contention in the Security Council’s 204th, 205th, and 206th Meetings of 1947,26 which precipitated these advisory opinions, and so these should have been the ICJ’s focus in these advisory opinions had it hoped to truly make an impact on the situation. This commentary concludes by emphasizing the political nature of the ultimate resolution of this impasse over admission, thereby helping identify the limitations of international law with these types of politically sensitive situations,

  • 22 See G. Abi-Saab, et al., The Changing Constitution of the United Nations (London, British Institute of International and Comparative Law 1997), p. 23.
  • 23 See J. Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford, Oxford University Press 2012), p. 731; J.S. Watson, ‘Autointerpretation, Competence and the Continuing Validity of Article 2(7) of the UN Charter’, (1977) 71 American Journal of International Law 60, 83; W.C. Gordon, ‘International Law: International Court of Justice—Advisory Opinions: Admission to Membership in the United Nations’, (1949) 47 Michigan Law Review 1192.
  • 24 See, for example, C.F. Amerasinghe, Principles of the Institutional Law of International Organisations (Cambridge, Cambridge University Press 2005), pp. 105-11 (referring to it as a rule of effectiveness); H.G. Schermers and N.M. Blokker, International Institutional Law (3rd rev. edn., Boston/Leiden, Martinus Nijhoff Publishers 2005), pp. 76-98; N.D. White, The Law of International Organisations (Manchester, Manchester University Press 2005), pp. 110-12.
  • 25 See, for example, R. Kolb, An Introduction to the Law of the United Nations (Oxford, Hart 2010),

p. 110.

26 See UN doc. SCOR, 203rd and 204th Meetings, 24 and 25 September 1947; UN doc. SCOR, 205th Meeting, 29 September 1947; UN doc. SCOR, 206th Meeting, 1 October 1947.

at least when the forum refuses to consider the relevant context surrounding the questions posed.

A. Factors in connection with conditions

The ICJ in the First Admissions Advisory Opinion was asked whether a member state may make its vote dependent on additional conditions not provided in art. 4(1) of the UN Charter. In relation to this question, the ICJ decided it would not concern itself with the ‘actual vote’ of member states—that is, the manner in which a member state arrives at its decision to vote.[12] [13] [14] Rather, the ICJ expressed the question in a purely legal manner:

[A]re the conditions stated in paragraph 1 of Article 4 exhaustive in character in the sense that an affirmative reply would lead to the conclusion that a Member is not legally entitled to make admission dependent on conditions not expressly provided for in that Article, while a negative reply would, on the contrary, authorize a Member to make admission dependent also on other conditions.28

By emphasizing the legal nature of the request, the ICJ established a narrow scope for the question posed. Nevertheless, as the ICJ often does in its decisions and opinions, the ICJ here showed some sophistication in examining the legal issues presented to it while also showing awareness of the associated political issues. In particular, in ruling that the enumerated conditions are exhaustive, the ICJ also decided that the consideration of factors that are connected to the conditions in art. 4 are not excluded. The ICJ explicitly distinguished factors from the enumerated conditions and excluded the consideration of relevant factors, such as political factors connected to conditions of admission. The distinction was constructive as it had identified and provided a nuanced approach on how to address these two connected issues. Furthermore, the ICJ provided a solution that did not stray from the enumerated conditions in art. 4(1), while at the same time it ensured some flexibility in practice to enable consideration of factors connected to the conditions.

However, the ICJ perhaps did not go far enough in determining the extent to which factors connected to the conditions may be relied upon when voting on admission. Dissenting Judges Basedevant, Winiarski, McNair, and Read highlighted the practical dilemma faced by members of the Security Council and the General Assembly having the freedom to give regard to any consideration upon which to base their vote but not to rely on such considerations to the extent they become conditions extraneous to the criteria in art. 4(1).2® The distinction between the two is not at all clear, and the advisory opinion certainly would have been more helpful in guiding admission decisions had it clarified the distinction. From a layperson’s perspective, the division between conditions and factors that relate to conditions would appear to be a distinction without a difference, which might denigrate the ICJ’s reasoning here.

B. Focus on the Security Council’s primary responsibility

The ICJ in the Second Admissions Advisory Opinion focused almost exclusively on the Security Council’s ‘primary responsibility to maintain international peace and security’, as opposed to explaining how the General Assembly also has responsibilities in this area. After providing the historical background for this Second Admissions Advisory Opinion, this section explains how the ICJ’s approach was overly narrow.

On 13 September 1949, the Security Council reconsidered the applications of Austria, Ceylon (modern-day Sri Lanka), Finland, Ireland, Italy, Jordan, and Portugal.[15] [16] [17] [18] Nine members of the Security Council (Argentina, Canada, China, Cuba, Egypt, France, Norway, United Kingdom, and the United States) had supported the draft resolutions recommending the admission of all of the above states to UN membership, but the Soviet Union consistently vetoed these applications” This created yet another political impasse within the Security Council on these admission cases. As a result of the ongoing—and seemingly irresolvable—political impasses within the Security Council on these admission cases, the General Assembly resolved at its 252nd Plenary Meeting on 22 November 1949 to request a further advisory opinion from the ICJ with regard to the competence of the General Assembly to admit applicants to the UN without a recommendation from the Security Council, thereby circumventing the Security Council and the Soviet veto.

The General Assembly at its 252nd Plenary Meeting considered the ‘political impasse’ as communicated through the Ad Hoc Political Committee and recommended ‘permanent members of the Security Council to refrain from the use of the veto in connexion with the recommendation of States for membership in the United Nations’ and that the Security Council ought to bear in mind art. 4(1) of the Charter when recommending applicants for membership” Clearly, from the language of the General Assembly in its 252nd Meeting, its view was that the veto of Security Council permanent members had stalled the admissions procedure of applicant states. The challenge was how to overcome this voting impasse in the Security Council in practice, and in particular whether the General Assembly may legally proceed with the business of admitting new members given that the impasse in the Security Council did not seem to have any prospects of being resolved” By seeking a second legal pronouncement from the ICJ on the matter, the General Assembly had hoped that the ICJ might endorse its preferred approach. However, as can be seen from the framing of the legal issue, the General Assembly was constrained by the legal requirements of art. 4 yet again.

The General Assembly decided at its 252nd Plenary Meeting to request an advisory opinion” which would act as the basis for the Second Admissions Advisory Opinion.

In order to provide an opinion, the ICJ first established the parameters of its competence in interpreting art. 4(2) of the UN Charter to answer such a legal question. This was intended to address the objections to the ICJ’s competence to answer this question on the basis that the question was of a political nature, as had been argued in the First Admissions Advisory Opinion. The ICJ settled such objections by reaffirming its judicial competence within art. 96 of the UN Charter and art. 65 of the ICJ Statute to answer any legal question, as it had similarly established in the First Admissions Advisory Opinion.[19] [20] [21] [22] Furthermore, the ICJ established the limits of its judicial competence by stating that ‘it cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision.^6 The ICJ affirmed the judicial aspects of the question and its competence to provide a judicial answer”

As with the First Admissions Advisory Opinion, the ICJ in the Second Admissions Advisory Opinion showed a willingness to consider the political issues associated with the legal question presented by the General Assembly. This should not be surprising, given that the bench in the Second Admissions Advisory Opinion consisted of fourteen of the fifteen judges who were involved in the First Admissions Advisory Opinion. However, the reasoning in the Second Admissions Advisory Opinion was far less balanced than in the First Admissions Advisory Opinion. For example, the ICJ focused almost exclusively on the Security Council’s ‘primary responsibility to maintain international peace and security,’ as provided for by UN Charter art. 24(1), and failed to even mention the General Assembly’s functions and powers under art. 10 to ‘discuss any questions ... relating to the powers and functions of any organs’ (including the Security Council) and under art. 11 to consider the ‘general principles of international peace and security’ and to ‘discuss any questions relating to [it].’ Moreover, the ICJ did not examine any role of the General Assembly under the UN Charter, thereby giving more effect to the power of the Security Council and less to the power of the General Assembly. In effect, the advisory opinion may have affirmed an unbalanced power relationship without conducting a complete analysis of UN Charter Chapter IV (dealing with the General Assembly) and Chapter V (dealing with the Security Council). In failing to do so, the ICJ gave effect to the very thing that had been causing the political impasse within the Security Council in the first place, which essentially reinforced the status quo. It is understandable that the ICJ wanted to deliberate the question in abstract terms. However, it might not have been the most helpful on this occasion to give a legal opinion in the absence of the broader context. Regardless, it would have been difficult for the ICJ to render an opinion that did not give effect to the Security Council recommendation, as it is an explicit requirement under the UN Charter^8

The extent to which the ICJ could have gone further in analyzing the question the General Assembly had posed arguably was limited by its perceived need to follow precedent. The ICJ decided it was bound to follow practice in interpreting art. 4 in accordance with its natural meaning because the words were sufficiently clear.[23] In so doing, the ICJ felt it did not need to refer to travaux prepartoires of the UN Charter to find further clarification.[24] [25] The ICJ certainly wanted to ensure that legal rules are followed and to prohibit acts that are contrary to the law. At the same time, the effect of the ICJ’s decision would be that the freedom of UN member states to exercise discretionary power in the UN would be constrained. The ICJ may have felt that it had indirectly settled the questions that arose in the 204th, 205th, and 206th Meetings in relation to collective voting, discretion, and the principle of universality, although it arguably did not do so. Instead, the ICJ attempted to reconcile the practical realities faced by members—that is, the issue of having to adhere to the ‘legal rule’ contained in UN Charter art. 4. In hindsight, the UN would have benefited from an analysis by the ICJ of the conduct of members voting in the Security Council or General Assembly (as dissenting Judges Basedevant et al. pointed out). In particular, it may have been helpful if the ICJ could have provided concrete examples or further guidance in differentiating between what it thought were political considerations that were allowed and conditions extraneous to the criteria in art. 4 that were prohibited. The ICJ’s determination unfortunately did not settle the issue—it left the criteria broad and vague. Moreover, according to the dissenting Judges Basedevant et al., the proposal for universal membership at the San Francisco Conference was rejected in favour of inserting specific conditions in the Charter with respect to the ‘character and policies of governments’ and to allow the United Nations (through the Security Council and General Assembly) to conduct extensive investigations of all considerations to determine the fulfilment of the criteria by candidates^ In effect, the fulfilment, or indeed the non-fulfilment, of the conditions in art. 4(1) would be a matter left solely to the judgment and discretion of each member state[26] [27] with the only limit to the exercise of this discretionary judgment being ‘good faith’.43

The preceding two sections have evaluated the ICJ’s actual approach to the questions posed in both requests for an advisory opinion. The following two sections explain how the ICJ probably would have done a better job in providing guidance that impacted the actual situation, had it been willing to broaden its focus to those issues that the Security Council had been focusing on in the lead up to these requests for advisory opinions—namely, the degree to which UN member states can exercise discretion when deciding on such matters as membership and whether such decisions should be influenced by the principle of universality.

C. Discretion

One main subtext of these advisory opinions was the question of how much discretion member states were to have when deciding such matters as membership. The UN Charter is ambiguous concerning the amount of discretion the members of the Security Council and the General Assembly are to have when deciding on such matters. Admittedly, the first sentence of UN Charter art. 24(2) appears to limit the discretion of the Security Council with the UN Charter’s purposes and principles, which are listed in UN Charter arts. 1 and 2, respectively. However, according to Hans Kelsen, the scope of the discretion to be exercised by the Security Council (and General Assembly) is not limited by provisions of the UN Charter, given that the Charter does not provide for a higher authority to determine definitively whether a decision of the Security Council (or General Assembly) is correct or not.[28] [29] [30] [31] [32] [33] Therefore, in a situation where an applicant fulfils the conditions in art. 4(1), either organ may nevertheless refuse to admit a state to membership, at least according to Kelsend5 Kelsen points to the report of the Rapporteur of Committee I/2 of the San Francisco Conference that interprets the UN Charter as representing a minimum standard to be satisfied, with the possibility to take into account other considerations^6 After all, if it were the intention of the drafters to admit all states that qualified, then the qualifications for admission would need to be accompanied by some provision guaranteeing admission to those states that qualified. Such a guarantee, Kelsen points out, is absent from the UN Charter.47

The same report of the Rapporteur of Committee I/2 highlighted the practical difficulties of stipulating in law the ‘enumeration of elements’ to use in evaluating an applicant’s membership qualifications, as it might offend the principle of non-intervention in states.48 As a result, the lack of a clear ‘enumeration of elements’ in law in effect gave a larger amount of discretion to UN organs and member states to determine whether the criteria were fulfilled. In the interest of promoting the rule of law, the challenge in practice arguably is to ensure that the degree of discretion is appropriate in light of the particular circumstances and that the decision is not unfair or unreasonable^9 However, this project of ensuring a lawful and fair process of UN admission was overshadowed by the political challenges facing an increasingly bipolar world during the Cold War.

The real issue in dispute during the Security Council’s 204th, 205th, and 206th Meetings from 25 September 1947 to 1 October 1947 appears to have been the extent that discretion may be used to admit applicants favoured by certain member states. Unfortunately, this was not the focus of the ICJ in the First Admissions Advisory Opinion, although it did mention that the argument that the conditions in art. 4 were an ‘indispensable minimum’ would unacceptably lead to ‘unlimited power of discretion in the imposition of new conditions’ inasmuch as it would be ‘inconsistent with the very character of paragraph 1 of Article 4 .. Л[34] [35] As explained in Section 5.1. above, the ICJ’s main focus in the First Admissions Advisory Opinion was whether a member state may make its vote dependent on additional conditions not provided in art. 4(1) of the UN Charter, which is somewhat different from the question whether states have unbridled discretion when deciding on admission applications. Likewise, the ICJ in the Second Admissions Advisory Opinion did not focus on the amount of discretion a member state may use when deciding to admit applicants favoured by certain member states. Instead, the ICJ focused almost exclusively on the Security Council’s primary responsibility to maintain international peace and security. Only the dissenting judges in the First Admissions Advisory Opinion focused significantly on discretion, interpreting art. 4(2) of the Charter to suggest that there was scope for the use of discretion to arrive at a Security Council recommendation and General Assembly decision and asserting that admission was not a procedure of accession^1 This point relates to the principle of universality, which is the focus of the next section, inasmuch as it might influence the way that member states use their discretion in admitting applicants to the UN.

D. Principle of universality

Another main subtext of these advisory opinions was whether UN membership was supposed to be universal or selective. Currently, UN membership is virtually universal, with the Cook Islands, the Holy See, and Niue as the only bona fide states that lack UN membership. However, on 17 November 1947, when the request for this advisory opinion was made/[36] there were only fifty-five UN member states/[37] [38] which left a large number of non-members in the world. In short, it was not entirely clear at that time whether the UN was supposed to be a universal international organization. The Moscow Conference of 1943 affirmed that the UN would open its membership to all states in order to maintain peace and security and gather peace-l oving states together.54 However, the final arrangement provided for in the UN Charter turned out to be far more complicated than this, inasmuch as the concept of openness and universality of membership was paradoxically at odds with the selection procedure ultimately adopted.

Upon reading the two paragraphs of UN Charter art. 4, two points stand out. First, the state being considered for membership must be peace-l oving and must adhere to the obligations of membership under UN Charter art. 4(1). Second, a successful membership application must have the requisite affirmative decision of the General Assembly upon the recommendation of the Security Council, according to UN Charter art. 4(2). When interpreting these provisions, it is important whether the intent of the framers of the UN Charter was universal or selective membership, inasmuch as this intent influences how these provisions should be interpreted and applied. The principle of universality in the UN, affirmed at the 1943 Moscow Conference, means that all states are equal and would in practice require the admission of all peace-l oving states to UN membership.[39] [40] [41] [42] [43] [44] [45] [46] Syria and France argued in the Security Council that the political division within the UN and the use of discretionary power to decide admission cases based on subjective determinations undermined the openness of admission they saw as inherent in UN Charter art. 4.56 Unfortunately, the ICJ did not address the principle of universality in either advisory opinion, although it should have since this arguably was at the heart of the debates within the Security Council and it possibly could have helped resolve the impasse.

When considering universality within the context of UN membership, it is necessary to ask what is meant by ‘peace-loving state’. A state’s preparedness to join the UN could be evidence of its peace-loving nature and its willingness to carry out the obligations of the UN Charter” In practice, however, ‘peace-loving’ ironically may have required a declaration of war on the Axis powers before the end of the Second World War.58 The openness and broadness of the language ‘all other peace-loving states’ referred to in art. 4(1) would support the ideal of inclusiveness and universality of membership. However, as one commentator points out, the UN appears to have rejected ‘universality as a basis for membership?9 Indeed, it became clear at the San Francisco Conference in 1945 that a state’s own declaration of peace-loving status would not be enough for UN admission^0 Instead, UN member states were to use their discretion to decide if an applicant state was peace loving and if it was likely to observe the obligations under the UN CharterH Permanent members of the Security Council even enjoy their veto privileges on substantive and procedural issues such as admission, which emphasizes the selective nature of admission decisions” With regard to procedural issues, there had been attempts at the conference to clarify those procedural issues that were not subject to veto powers, as provided in UN Charter art.

27(3), which limits the veto to non-procedural matters, although the exact contours of what constitutes non-procedural matters appears to have been left intentionally ambiguous by the drafters.[47] Nevertheless, the Security Council documented the following in response to ‘the question whether the recommendation of the Security Council [with regard to admission] is subject to the voting procedure prescribed by art. 27(3) of the Charter’:

The practice of the Security Council in this respect has continued unchanged. In

particular, abstentions by permanent members have continued to be regarded as not

affecting the requirement of concurring votes of those members[48] [49] [50] [51]

In effect, this provided an inordinate amount of discretion to the permanent members when it came to their use of the veto, including in connection with issues of membership, which emphasizes the selective nature of UN membership. These points should have been raised in the advisory opinions, yet they were not.

In sum, the ICJ did not focus on the amount of discretion member states have when making their decisions, nor did it focus on the principle of universality, although both could have helped it answer the questions raised in these two advisory opinions and had a real impact on the actual situation at issue. Indeed, the ICJ looked at the abstract questions posed by the General Assembly without the context in which they arose, and therefore, it should not come as a surprise that these two advisory opinions had minimal impact on the resolution of the impasse. Instead, as the following section shows, the impasse ultimately was resolved through political means.

E. Political resolution

These two advisory opinions both attempted to resolve the political impasse within the Security Council and provide a legal opinion that clarified the ambiguous issues associated with UN admission. Even though the Court’s advisory opinions provided legal guidance in an attempt to overcome the political stalemate, ultimately this effort was unsuccessful. Indeed, after the Second Admissions Advisory Opinion, the UN entered a period of ‘logjam’ over membership, inasmuch as it did not admit any new members from 1950 to 1955.65 After obtaining the ICJ’s advisory opinions, the UN attempted to take measures to overcome the political stalemate on the matter of admission of new members, with the General Assembly establishing a nineteen member state Special Committee at its 7th Session to study proposals on the question of admission of new members.66 This Special Committee failed to provide concrete recommendations or agree on a solution^7 Then, at its 8th Session, the General Assembly attempted to explore ‘possibilities of a solution along political lines’ through the Good Offices Committee^8 The committee consisted of representatives from Egypt,

The Netherlands, and Peru, and was tasked with consulting members of the Security Council to ‘[reach] an agreement which would facilitate the admission of New Members in accordance with Article 4 of the Charter.’[52] This included the favouring of the ‘widest possible membership of the United Nations,’ for the Security Council to consider recommending the membership applications of eighteen states and to report those applications to the General Assembly.[53] [54] [55] [56] [57] [58] [59] [60] Then Brazil and New Zealand submitted a joint draft resolution to the Security Council at its 701st Meeting that took into account General Assembly Resolution 918(X), which noted that the General Assembly would consider the eighteen applications separately/1 The President (the representative of New Zealand) explained that the applications were to be voted upon separately in the proceedings and then on the draft resolution as a whole/2 During the Security Council’s 703rd Meeting, the Soviet Union proposed that the eighteen applications were to be voted upon as a whole, even though it may be ‘[legalizing a] package deal’/3 There was further resistance to voting on the applications as a whole during the Security Council’s 704th Meeting (at this point, there were twenty applicants being considered after China added two applicants, although four of the original applicants were not put to the vote as they were presented as part of the whole)/4 There was no outcome at this stage.

The turning point came at the Security Council’s 705th Meeting on 14 December 1955 when the Soviet Union proposed that sixteen states would be recommended to the General Assembly for membership, but when the United States tried to add Japan to the list of states and the Soviet Union vetoed the vote on Japan, the Security Council proceeded to vote on the sixteen states separately and then on the Soviet Union’s draft resolution as a whole/5 The sixteen successful states were Albania, Jordan, Ireland, Portugal, Hungary, Italy, Austria, Romania, Bulgaria, Finland, Ceylon (modern- day Sri Lanka), Nepal, Libya, Cambodia, Laos, and Spain/6 Subsequently, having received the requisite recommendation from the Security Council, the General Assembly decided to admit all sixteen states.77 Notably, at this stage, the Security Council made no recommendations on the applications of South Korea, Vietnam, Mongolia, or Japan, even though they were the subject of the proposals voted upon for the recommendation of the Security Council/8 However, having successfully had its draft resolution voted upon in the manner the Soviet Union advocated and passed through during the Security Council’s 705th Meeting, the Soviet Union proceeded with submitting a further draft resolution on the following day recommending the admission of Mongolia and Japan to the General Assembly at the Security Council’s

706th Meeting on 15 December 1955.[61] Subsequently, the Soviet Union’s draft resolution was voted upon as a whole but was not adopted due to only one state being in favour and ten abstentions.[62] [63] [64] [65] [66] [67] [68] Notably, at this 706th Meeting, the President (speaking as the representative of New Zealand) said he would abstain on both the Soviet proposal as well as the United Kingdom proposal (which only contained the name of Japan) on ‘constitutional grounds,’ which was due to the view that ‘the Council is not permitted by the Charter to attach conditions to any kind of recommendations.^1 Further to this, the Soviet Union submitted an amendment to the United Kingdom’s draft resolution to add Mongolia to be voted upon at the 708th Meeting on 21 December 1955, but the United Kingdom representative decided to postpone voting on its draft resolution^2 There were further attempts by the Soviet Union to propose for Security Council recommendation the admission of North Korea and South Korea simultaneously at the 789th and 790th Meetings on 9 September 1957 and at the 843rd Meeting in December 1958, but these drafts were rejected due to there being only one vote in favour, with nine against and one abstention for the first occasion, and one vote in favour and eight against with two abstentions for the second occasion^3 The United States cast the single veto vote against recommending North Vietnam to be admitted to the UN on 15 November 1976 in spite of support by fourteen members of the Security Council^4 stating that ‘Vietnam did not meet the standards established by Article 4 of the Charter ... [due to] Vietnam’s failure to observe human rights with respect to American service men [.. ,]’.85 By this point, it became obvious that the effect of the package deal struck at the 705th Meeting had set a new precedent for admitting members as a whole, even though the development had been met with resistance from the President of the 706th Meeting, who opposed such a voting method on principle and due to the fact that the United Kingdom and the United States were simply obstructing the admission of their enemy states. Thus we see how political considerations, not legal considerations, led to the eventual resolution of the impasse over admission to the UN.

F. Conclusion

When assessing the effectiveness of these advisory opinions on the UN admissions process, it is important to keep in mind that the UN most likely was relatively distracted away from admission issues during this period by complaints of Yugoslavia, Albania, and Bulgaria threatening peace and security in Greece and the security threats associated with the Korean War, among other pressing issues.86 It was not until 1955 when the ‘package deal’ was negotiated that allowed the admission of sixteen states, which ended the deadlock in the Security Council.[69] [70] It has been suggested that the 1955 package deal only managed to stay within the letter of the ICJ’s advisory opinions by dealing with each applicant state separately.88 However, the more accurate view seems to be that the entire package deal contradicts the UN Charter concerning admission, at least in light of the ICJ’s interpretation of these provisions in the two advisory opinions analyzed in this case comment. In the end, it would appear that politics prevailed when it came to UN membership applications. Recent applicants for UN membership undoubtedly have noticed a similar attitude. Therefore, the ultimate significance of these advisory opinions might lie in helping understand the limits of international law when it comes to politically sensitive situations, which lesson is not entirely without value.

To end on a more positive note, the package deal arguably complied ‘with the spirit of the United Nations,’ inasmuch as it was a significant step towards the ‘realization of universality’ in UN membership^9 Even though universalism was not the stated goal of the United Nations^0 the package deal of 1955 dovetailed nicely with the period of decolonization at the end of the 1950s and a shift of membership policy in favour of universalism in the UN.91 Gradually art. 4 waned in importance when deciding on admission, and admission became a mere procedural matter without significant regard to the conditions of membership established in the UN Charter^2 Unfortunately for aspiring UN member states in modern states, the shift away from the conditions in art. 4 towards political considerations has not been accompanied by a policy in favour of universalism, as was observed in the 1950s, thus opening up the United Nations to criticism involving unfairness and illegitimacy, at least with regard to admission decisions.

  • [1] Montevideo Convention on the Rights and Duties of States, art. 1, 26 December 1933, 49 Stat. 3097,UNTS 881 (1933). See also J. Crawford, The Creation of States in International Law (2nd edn, Oxford,Oxford University Press 2006), p. 45 (referring to the traditional dominance of these criteria in determining statehood); Th. D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’,(1999) 37 Columbia Journal of Transnational Law 403, 413-14 (same); Restatement (Third) of ForeignRelations Law of the United States, 1987, § 201 (describing this formula for statehood as customaryinternational law).
  • [2] See generally J. Dugard, International Law: A South African Perspective (Kaapstad, Juta & Co1994), pp. 72-3; J. Dugard, Recognition and the United Nations (Cambridge, Grotius Publ 1987), p. 80;H. Mosler, ‘Subjects of International Law’, in R. Bernhardt (ed.), Encyclopedia of Public International Law(Amsterdam, North-Holland 1984) Vol. 7, pp. 442, 449-50.
  • [3] See, for example, J. Greenberg, ‘Palestinians Stay Firm on U.N. Statehood Bid’, Washington Post,14 November 2012, at A12; P. Chang and K. Lim, ‘Taiwan’s Case for United Nations Membership’, (1997)1 UCLA Journal of International Law & Foreign Affairs 393; V.R. Osmani, ‘Foreign Policy of the Republicof Kosovo: The Role of Parliamentary Diplomacy in State-Building’, (2013) 74 University of PittsburghLaw Review 621, 625-7.
  • [4] See UN doc. S/PV.57, 29 August 1946. See also A.W. Rudzinski, ‘Admission of New Members: TheUnited Nations and the League of Nations’, (1952) 29 International Conciliation 143, 159.
  • [5] See UN doc. S/PV.57, 29 August 1946. 6 See UN doc. A/RES/34(I), 9 November 1946.
  • [6] 7 See UN doc. Security Council Official Records (SCOR), 206th meeting, 1 October 1947, at 2032-3.
  • [7] 8 See UN doc. SCOR, 186th Meeting, Lake Success, New York, 18 August 1947.
  • [8] 9 See UN doc. SCOR, 206th meeting, 1 October 1947, at 2033-55.
  • [9] 10 See ibid. at 2052, 2055 (for unanimous votes recommending Yemen and Pakistan).
  • [10] See UN doc. A/RES/113 (III), 17 November 1947. ‘2 Held at Lake Success, New York on 25 September 1947, 29 September 1947 and 1 October 1947respectively. 13 See UN doc. SCOR, 206th meeting, 1 October 1947, at 2466-75. 14 See Y. Liang, ‘Notes on Legal Questions Concerning the United Nations, Conditions of Admission ofa State to Membership in the United Nations’, (1949) 43 American Journal of International Law 288, 290. 15 Ibid. ‘б Ibid. 17 See UN doc. A/RES/113 (III), 17 November 1947. 18 See UN doc A/RES/197 (III), 8 December 1948. See also L. Gross, ‘Progress Towards Universality ofMembership in the United Nations’, (1956) 50 American Journal of International Law 791, 792 (observing that notwithstanding A/RES/197(IIII) recommending voting in accordance with the ICJ advisoryopinion, it ‘seemed to have the effect of merely stiffening [...] opposing views and making a compromise’between the sides even less probable). 19 See Rudzinski (n. 4), at 159; Liang (n. 14), at 291-5. 20 See UN doc A/RES/296(IV), 22 November 1949.
  • [11] The numbers between brackets before each paragraph are added to the original text, following thereprint of the advisory opinions in Oxford Public International Law.
  • [12] See First Admissions Advisory Opinion [1948] ICJ Rep 57, 60 (para. 11).
  • [13] Ibid. at 61 (para. 14).
  • [14] 29 Dissenting Opinion of Judges Basedeviat, Winiarksi, McNair, and Read, [1948] ICJ Rep 82, 83.
  • [15] See UN doc. SCOR, 442nd and 443th Meetings, 13 September 1949.
  • [16] Ibid. See also Th. D. Grant, Admission to the United Nations, Charter Article 4 and the Rise ofUniversal Organization (Leiden/Boston, Martinus Nijhoff Publishers 2009), pp. 64-7 (describing the‘logjam’ from 1946 to 1955, and noting the admission of certain applicants was problematic by the 1950s).
  • [17] See UN doc. A/RES/296(IV), 22 November 1949, sec. K.
  • [18] See Grant (n. 31), at 65 (observing that there were no admissions to the UN from 1950 to 1955). 34 See UN doc. A/RES/296(IV), 22 November 1949, sec. J.
  • [19] See Second Admissions Advisory Opinion, [1950] ICJ Rep 4, 7 (para. 9); First Admissions AdvisoryOpinion, [1948] ICJ Rep 57, 61-2 (paras 15-16).
  • [20] Second Admissions Advisory Opinion [1950] ICJ Rep 4, 7 (para. 10). З7 Ibid.
  • [21] 3 8 See White (n. 24), at 108-9; M.D. Oberg, ‘The Legal Effects of Resolutions of the UN Security Counciland General Assembly in the Jurisprudence of the ICJ’, (2006) 16 European Journal of International Law
  • [22] 879, 891.
  • [23] See First Admissions Advisory Opinion [1948] ICJ Rep 57, 63 (para. 26). 40 Ibid.
  • [24] 41 See Dissenting Opinion of Judges Basedeviat, Winiarksi, McNair, and Read, [1948] ICJ Rep 82, 88
  • [25] (citing the Minutes of Commission I/2 of the San Fransisco Conference, Vol. VII, at 308).
  • [26] See Abi-Saab et al. (n. 22), at 23; White (n. 24), at 110-12 (arguing that art. 4 provides for the exerciseof judgment, but this judgment must be exercised within the ambit of the legal constraints in that article).
  • [27] S. Jacobs and M. Poirier, ‘The Right to Veto United Nations Membership Applications: The UnitedStates Veto of the Viet-Nams’, (1976) 17 Harvard International Law Journal 581, 595 (citing Frenchand Polish oral arguments). See also J. Klabbers, An Introduction to International Organizations Law(3rd edn, Cambridge, Cambridge University Press 2015), pp. 90-112.
  • [28] See H. Kelsen, The Law of the United Nations, A Critical Analysis of Its Fundamental Problems(London Institute of World Affairs, London 1950, New York, Praeger 1964), p. 70.
  • [29] Ibid. 46 Ibid. 47 Ibid. at p. 71.
  • [30] 48 See Report of the Rapporteur of Committee I/2 of the San Francisco Conference in Minutes of Vol.
  • [31] VII at 308, cited in Dissenting Opinion of Judges Basedevant, Winiarski, McNair, and Read in the First
  • [32] Admissions Advisory Opinion, [1948] ICJ Rep 82, 88.
  • [33] See T. Bingham, The Rule of Law (London, Penguin Books 2010), pp. 48-50 (pointing out that excessive discretion of decision-makers does not provide a means to challenge arbitrary decisions and ultimately undermines the rule of law).
  • [34] First Admissions Advisory Opinion, [1948] ICJ Rep 57, 62-3 [para. 24].
  • [35] See Dissenting Opinion of Judges Basedeviat, Winiarksi, McNair, and Read, [1948] ICJ Rep 82, 83-4.
  • [36] See UN doc. A/RES/113 (III), 17 November 1947.
  • [37] See UN doc., Member States of the United Nations, at http://www.un.org/en/members
  • [38] See Moscow Declaration of 1943, cl. 4. See also, P. Marshall, ‘Smuts and the Preamble to the UNCharter’, (2001) 358 The Roundtable 55, 56.
  • [39] See UN doc. SCOR, 203rd and 204th Meetings, 24 and 25 September 1947, at 2416-17.
  • [40] Ibid. at 2416-17, 2423-4. 57 See Rudzinski (n. 4), at 146.
  • [41] 58 See, for example, D.F. Vagts, ‘Neutrality Law in World War II’, (1998) 20 Cardozo Law Review 459,
  • [42] 459 (discussing Turkey’s declaration of war being connected to UN membership).
  • [43] Rudzinski (n. 4), at 147. The proposal from Argentina to the First Assembly of the League of Nationsin 1920 for membership to be accepted on a universal basis was rejected by a vote of twenty-nine to five.Ibid., at 149.
  • [44] Ibid., at 154. 6i Ibid.
  • [45] 62 See Th. R. Van Dervort, International Law and Organization (Thousand Oaks/London, Sage
  • [46] Publications 1998), p. 43.
  • [47] Ibid. 64 UN doc. art. 4, Repertory, Supplement 1, Vol. 1 (1945-55), para. 10, at 86.
  • [48] 65 Grant (n. 31), at 65.
  • [49] 66 See L. Gross, Essays on International Law and Organization, vol. 1, (Dordrecht, Kluwer 1984),
  • [50] pp. 585-6.
  • [51] Ibid. 68 Ibid. at 586.
  • [52] UN doc. A/RES/718(VIII) of 23 October 1953.
  • [53] UN doc. A/RES/918(X) of 8 December 1955.
  • [54] See UN doc. art. 4, Repertory, Supplement 1, Vol. 1 (1945-55) at 84, para. 10; UN doc. PracticesRelative to Recommendations to the General Assembly Regarding the Admission of New Members,Repertory (1952-55), ch. VII, at 97.
  • [55] Ibid. 73 Ibid.
  • [56] 74 UN doc. Practices Relative to Recommendations to the General Assembly Regarding the Admission
  • [57] of New Members, Repertory (1952-55), ch. VII, at 97-8.
  • [58] See UN doc. S/3509 of 14 December 1955. 76 Ibid.
  • [59] 77 See UN doc. A/RES/995(X) of 14 December 1955.
  • [60] 78 See UN doc. art. 4, Repertory, Supplement 1, Volume 1 (1945-55), at 80, para. 10.
  • [61] See UN doc. Practices Relative to Recommendations to the General Assembly Regarding theAdmission of New Members, Repertory (1952-55), Chapter VII, at 98.
  • [62] Ibid. 8i ibid. at 98, 101. 82 м. at 98.
  • [63] 83 See UN doc. Practices Relative to Recommendations to the General Assembly Regarding the
  • [64] Admission of New Members, Repertory (1956-58), Chapter VII, at 88.
  • [65] 84 See UN doc. A/RES/31/21 of 26 November 1976.
  • [66] 85 UN doc. art. 4, Repertory, Supplement 5, Vol. 1 (1970-78), at 73, para. 21.
  • [67] 86 See L.M. Goodrich, ‘Expanding the Role of the General Assembly, The Maintenance of International
  • [68] Peace and Security’, (1951-52) 29 International Conciliation 231, 269-72.
  • [69] See B. Simma/D. Khan/G. Nolte/A. Paulus (eds), The Charter of the United Nations: A Commentary(Oxford, Oxford University Press 2002), p. 180; Kolb (n. 25), at 108-9.
  • [70] See Kolb (n. 25), at 109. 89 Simma (n. 87), at 180. 90 See Rudzinski (n. 4), at 147. 9i See Kolb (n. 25), at 109. 92 iWd.
 
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