Part VIII International Institutional Law, Ch.45 Membership and Representation
Stephen Mathias, Stadler Trengove
Edited By: Jacob Katz Cogan, Ian Hurd, Ian Johnstone
- Membership of international organizations — International organizations, practice and procedure — Representation of states in international organizations — Resolutions of international organizations
The purpose of this chapter is to give a brief overview of membership practices in international organizations. The chapter will focus on criteria for membership, rights and obligations of membership, suspension, expulsion, and withdrawal. In addition to setting out the legal criteria in an international organization’s constitutive treaty relating to membership, we also discuss how these criteria have been applied in practice and how decisions that are political in nature have been made within the established institutional and legal framework.
The chapter focuses on three different types of international organizations: the universal, represented by the United Nations (UN); the regional, such as the European Union (EU) and African Union (AU), where membership is restricted to countries from a particular geographic area; and the specialized agencies which, while fulfilling a limited and technical function, are often open to universal membership.
We touch upon a range of tactics used by international organizations against members in order to restrict their participation when members have either not complied with decisions of the organization or where an international organization has sought to condemn a particular member’s policies and practices. These tactics have included rejecting credentials, limiting speaking rights, and denying access to meetings.
(p. 963) We include a discussion on observers, including how observer states, dependent territories, intergovernmental organizations, and nongovernmental organizations (NGOs) have participated in the activities of the UN and its specialized agencies.
Finally, we conclude that while formal criteria do exist in the constitutive treaties of international organizations for suspension, expulsion, and withdrawal, the latter two have rarely been used in practice, and the tendency has been to restrict participation through other means.
Criteria for Membership
Membership in an international organization is determined by its constitutive treaty or convention, which sets out the criteria for membership and the procedure that must be followed to obtain it.
In the case of the UN, under Article 3 of its Charter:
[t]he original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 110.
In addition, under Article 4.1, “[m]embership 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.” Article 4.2 provides that “[t]he 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.” There have been cases where the Security Council has taken decisions not to recommend an applicant for membership. However, there is no recorded case where the General Assembly has taken a decision against an application that has been recommended to it by the Security Council.1
This states-only limitation does not apply in all international organizations. For example, Article 3 of the Convention of the World Meteorological Organization extends membership to any territory or group of territories that has its own meteorological service but does not have responsibility for the conduct of its own References(p. 964) international relations, provided that the request for membership is presented by the member responsible for its international relations and secures approval by two-thirds of the members of the Organization. Such territories or groups of territories include the British Caribbean Territories, French Polynesia, Hong Kong, China, and Macao.
Some organizations have a two-tiered system of membership. Pursuant to Article II, paragraph 2 of the United Nations Educational and Scientific Organization’s (UNESCO) Constitution, for example, states that are not members of the UN may be admitted to membership of the Organization, upon recommendation of the Executive Board, by a two-thirds majority vote of the General Conference. Article II, paragraph 3 permits “[t]erritories or groups of territories which are not responsible for the conduct of their international relations” to be admitted as Associate Members. The “nature and extent of the rights and obligations of Associate Members shall be determined by the General Conference.” Examples of associate members include the dependent territories of the British Virgin Islands, Aruba, and the Cayman Islands.
Intergovernmental organizations often establish other criteria, in addition to statehood, for membership.
In the case of the UN, prospective member states are required, under Article 4(1), to be peace-loving, to accept the obligations contained in the present Charter, and in the judgment of the Organization, to be able and willing to carry out these obligations.
In this case, the “judgment of the Organization” refers to the judgment of the Security Council and the General Assembly.
The practice of the Security Council and the General Assembly, as evidenced by their respective rules of procedure,2 appears to be that the term “judgment of the Organization” as to whether an applicant satisfies the conditions set forth in Article 4(l) of the UN Charter refers to the judgment of both organs. The International Court of Justice (ICJ) has agreed, stating in its advisory opinion of May 28, 1948 on Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), that “[t]he judgment of the Organization means the judgment of the two organs mentioned in paragraph 2 of Article 4.”3
References(p. 965) Subsequently, the ICJ, in its advisory opinion of March 3, 1950 on the Competence of the General Assembly for the Admission of a State to the United Nations, stated that “the General Assembly can only decide to admit upon the recommendation of the Security Council [and] the recommendation of the Security Council is the condition precedent to the decision of the Assembly by which the admission is effected.”4 According to the Court, the admission of a state to membership in the UN “cannot 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.”5 These two decisions by the ICJ thus confirm that membership is a two-step process involving both the General Assembly and the Security Council.
As far as the criteria for admission is concerned, the ICJ was clear in its 1948 advisory opinion that Article 4 of the UN Charter contains an exhaustive list of conditions that must be fulfilled by states requesting admission to the UN and that a member of the UN cannot make its consent to admission dependent on conditions not expressly provided in Article 4, paragraph 1.6 The ICJ stated that Article 4 would lose its significance and weight if other conditions, unconnected with those laid down, could be demanded. For the ICJ “[t]he 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”7 and that member states do not have the power to impose new conditions.8
By Resolution 197(III) A of December 8, 1948, the General Assembly recommended that each member of the Security Council and of the General Assembly, in exercising its vote on the admission of new members, act in accordance with this advisory opinion.
Membership in regional organizations, such as the AU, Arab League, and EU, is limited to states from specific geographical areas.
Pursuant to Article 1 of the Charter of the League of Arab States:
[t]he League of Arab States is composed of the independent Arab states which have signed this Charter. Any independent Arab state has the right to become a member of the League. If it desires to do so, it shall submit a request which will be deposited with the Permanent Secretariat General and submitted to the Council at the first meeting held after submission of the request.9 [Emphasis added.]
References(p. 966) Under Article III of the Charter, the Council of the League consists of the representatives of member states of the League.
Article 29 of the Constitutive Act of the AU provides that “[a]ny African State may, at any time after the entry into force of this Act, notify the Chairman of the Commission of its intention to accede to this Act and to be admitted as a member of the Union”10 (Emphasis added).
Pursuant to Article 49 of the Treaty of the European Union, any European state which respects the values set out in the Treaty and is committed to promoting them may apply to become a member of the Union.11
In addition, there are more elaborate conditions for membership, defined at the European Council in Copenhagen in 1993 and referred to as “Copenhagen criteria.” Countries must meet these criteria in order to join the EU:12
• stable institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities
• a functioning market economy and the capacity to cope with competition and market forces in the EU
Countries wishing to join the EU must adopt EU regulations and rules as part of their own national law. These regulations and rules are not negotiable. Candidates agree on how and when to adopt and implement them and the EU obtains guarantees on the date and effectiveness of each candidate’s measures to do this.13
Membership in the UN is sufficient to obtain membership in many of the UN specialized agencies, such as UNESCO. If a state does not have UN membership, approval is required from the respective Agency’s intergovernmental bodies. In the case of the UN Industrial Development Organization (UNIDO) membership is automatic for UN member states and states members of specialized agencies or the International Atomic Energy Agency upon signature and ratification of the UNIDO Constitution.
Some international organizations also provide an introductory process for states interested in membership. For example, NATO has a program of advice, assistance, and practical support, known as the Membership Action Plan (MAP), References(p. 967) which is individually tailored to the needs of countries wishing to join the Alliance. Participation in the MAP does not prejudge a decision by the Alliance on future membership. Current participants in the MAP include the former Yugoslav Republic of Macedonia and Montenegro.14
Membership of Intergovernmental Organizations in Other Intergovernmental Organizations
Many international organizations take part in the work of other international organizations either as observers or members.
The UN has, for example, allowed the EU, the AU, and the Commonwealth15 to participate as observers.
The European Bank for Reconstruction and Development, on the other hand, permits the European Investment Bank to participate as a full member.
Similarly, the EU has, since November 26, 1991, been a member of the Food and Agriculture Organization, a specialized agency, which under Article II of its Constitution allows its Conference to admit as a member of the Organization any regional economic integration organization meeting the criteria set out in paragraph 4 of this Article. Paragraph 4 states that:
a regional economic integration organization must be one constituted by sovereign States, a majority of which are Member Nations of the Organization, and to which its Member States have transferred competence over a range of matters within the purview of the Organization, including the authority to make decisions binding on its Member States in respect of those matters.
The Marrakesh Agreement establishing the World Trade Organization (WTO) provided that one of its original members would be the European Community (now the EU). Specifically, Article XI (1) provides that “[t]he contracting parties to GATT 1947 as of the date of entry into force of this Agreement, and the European Communities, which accept this Agreement and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS shall become original Members of the WTO.”16
References(p. 968) Process of Admission to Membership
Criteria for admission are usually governed by an organization’s constitutive act or treaty, whereas the procedures for admission are usually set out in both the constitutive act and the rules of procedure of an organization’s governing bodies.
In the case of the AU, admission is to be decided by a simple majority of member states. Each member state transmits its decision to the Chairperson of the AU Commission.17
However, the process for admission in other cases may involve one body making a recommendation to another.
In the case of the EU, Article 49 of the Treaty of the European Union provides that:
[t]he European Parliament and national Parliaments shall be notified of [the] application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.
Membership in the UN is obtained under Article 4 upon a decision of the General Assembly based upon a recommendation of the Security Council.
Under the Provisional Rules of Procedure of the Security Council18 and the Rules of Procedure of the General Assembly19 the procedure laid out for the consideration of membership applications requires that any state which desires to become a member of the UN must submit an application to the Secretary-General containing a declaration, made in a formal instrument, that it accepts the obligations contained in the Charter.
Unless the Security Council decides otherwise, the application is referred by the President of the Security Council to a Committee on the Admission of New Members, upon which each member of the Security Council is represented. The Committee reports back to the Security Council in due course. If the Security Council recommends the applicant state for membership, it forwards to the General Assembly the recommendation with a complete record of the discussion. If the Security Council does not recommend the applicant state for membership, or postpones consideration of the application, it submits a special report to the General Assembly with a complete record of the discussion.
Under the Charter, the Rules of Procedure of the General Assembly, and the Provisional Rules of Procedure of the Security Council, if the Security Council recommends the applicant state for membership, the General Assembly decides on membership by a two-thirds majority of the members present and voting. Should the Security Council not recommend the applicant state for membership References(p. 969) or postpone consideration of the application, the General Assembly may, after full consideration of the special report of the Security Council, send the application back to the Council.20
Although the Secretary-General has an administrative role under the Provisional Rules of Procedure of the Security Council and the Rules of Procedure of the General Assembly, which require him or her to circulate an application for membership among the members of both bodies, it has become customary for the Secretary-General to conduct a technical review in order to verify that the application is receivable—namely, that it is in due and proper form—before providing it to the Security Council and the General Assembly.
As a matter of practice, the Secretary-General finds an application to be in due and proper form unless:
1. the application is not contained in a letter signed by the head of state, head of government or minister of foreign affairs
2. the application is from an entity that on its face could not be considered as a state or
Decisions of the General Assembly and Security Council may preclude the circulation of a membership application. For example, in 2007, member states forwarded a membership application for “the Republic of China (Taiwan).” This “application” was transmitted through a letter signed by twelve Permanent Representatives but was not accepted on the grounds that, in accordance with General Assembly Resolution 2758 (XXVI) of October 25, 1971, the representatives of the People’s Republic of China are, for UN purposes, the “only lawful representatives of China to the United Nations”21 and that Taiwan was, for UN purposes, part of China.
In the case of Palestine, the Secretary-General took the decision in 2011 to forward its application for membership22 to both the Security Council and the General Assembly. At the time, Palestine enjoyed, within the UN, observer status as an “entity” as opposed to a state.23 The Security Council referred the application to the Committee on the Admission of New Members,24 which was unable to make a unanimous recommendation to the Security Council because agreement could not be reached among Council members as to whether Palestine fulfilled the References(p. 970) requirements of membership.25 The Committee’s report has not, to date, been taken up by the Security Council.
The General Assembly, when according nonmember observer state status to Palestine in November 2012,26 expressed the hope “that the Security Council will consider favorably the application submitted on September 23, 2011 by the State of Palestine for admission to full membership in the United Nations.”27
Succession of States
For the UN, the question of succession in relation to membership has arisen mainly in two types of cases: where a single member state has dissolved into a number of independent states and where a new state has seceded from an existing member state.
Two well-known examples of the first type of case are the dissolution of the Union of Soviet Socialist Republics (USSR) and the Socialist Federal Republic of Yugoslavia (SFRY). In the case of the USSR, there was no objection by member states or those states that had previously formed part of the USSR to Russia succeeding to the seat of the USSR in the General Assembly and to the permanent seat on the Security Council.
The situation with Yugoslavia was more complicated.
Following the promulgation of its constitution, the new Federal Republic of Yugoslavia (FRY) addressed a note to the Secretary-General advising him that:
the Assembly of the Socialist Federal Republic of Yugoslavia, at its session held on April 27, 1992, promulgated the Constitution of the Federal Republic of Yugoslavia. Under the Constitution, on the basis of the continuing personality of Yugoslavia and the legitimate decisions by Serbia and Montenegro to continue to live together in Yugoslavia, the Socialist Federal Republic of Yugoslavia is transformed into the Federal Republic of Yugoslavia, consisting of the Republic of Serbia and the Republic of Montenegro.
Accordingly, the note advised the Secretary-General that the FRY intended to continue the international legal personality of the former SFRY and assume membership in those international organizations of which the SFRY had been a member.28
Bosnia and Herzegovina, Croatia, Slovenia, and the former Yugoslav Republic of Macedonia, all of which had been part of the SFRY and which had applied for and References(p. 971) were admitted to membership in the UN in accordance with Article 4 of the Charter,29 objected. In its Resolution 47/1 of September 22, 1992, the General Assembly, acting upon the recommendation of the Security Council in its Resolution 777 (1992) of September 19, 1992, considered:
that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore decide[d] that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.
The Legal Counsel of the UN took the view that this resolution of the General Assembly neither terminated nor suspended the membership of the SFRY in the UN.30 Consequently, the seat and nameplate remained, but in Assembly bodies representatives of the FRY could not sit behind the sign “Yugoslavia.” At the same time, the Legal Counsel expressed the view that the admission of the FRY to membership in the UN, in accordance with Article 4 of the UN Charter, would terminate the situation that had been created by General Assembly Resolution 47/1.31
The ICJ in the case concerning the Legality of Use of Force (Serbia and Montenegro v United Kingdom) referred to the “confused and complex state of affairs” that obtained within the UN surrounding the issue of the legal status of the FRY in the Organization during this period.32 The ICJ indicated that this situation came to an end when the FRY applied33 and was admitted to membership pursuant to Security Council Resolution 1326 of October 31, 2000 and General Assembly Resolution 55/12 of November 1, 2000.34
Developments with regard to the FRY, which in 2003 changed its name to the “Federal Republic of Serbia and Montenegro,”35 also illustrate the second type of case, in which a new state has seceded from an existing state. In a letter dated June 3, 2006, the President of the Republic of Serbia informed the Secretary-General that membership in the UN of “Serbia and Montenegro” was being continued by the “Republic of Serbia” following Montenegro’s declaration of independence. References(p. 972) Montenegro subsequently applied for membership in the UN,36 which was granted pursuant to Security Council Resolution 1691 (2006) of June 22, 200637 and General Assembly Resolution 60/264 of July 12, 2006.
A more recent example of a seceding state becoming a member state of the UN is South Sudan, which seceded from Sudan on July 9, 2011 after a referendum pursuant to the 2005 Comprehensive Peace Agreement concluded between the Sudan People’s Liberation Movement and the government of Sudan. South Sudan subsequently applied for membership in the UN38 which was granted pursuant to Security Council Resolution 1999 of July 13, 201139 and General Assembly Resolution 65/308 of July 14, 2011. This did not affect Sudan’s membership in the UN.
In this regard, it is important to recall that the UN does, generally speaking, examine what the effect of secession would be when a new state has seceded from an existing state that is a member of the UN. The Sixth Committee of the General Assembly stated on October 7, 1947, that a “state which is a member of the United Nations does not cease to be a Member from the mere fact that its constitution or frontiers have been modified.” Thus secession would not have an effect on membership. Furthermore:
[w]hen a new State is created, whatever the territory and the population which compose it, and whether these have or have not been part of a State Member of the United Nations, this new State cannot, under the system provided for by the Charter, claim the status of Member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter.40
This means that any new state would have to apply for membership using the procedures set out in the Charter.
Rights of Membership
Participation in the Intergovernmental Process, Including the Right to Vote
The most important attributes of membership in an intergovernmental organization are the right to participate in the activities of its organs that are open to all member References(p. 973) states as well as their decision-making processes, to stand for election, and to be elected to those organs that may be limited to a specific number of member states.
For example, under Article 9 of the UN Charter, the General Assembly consists of all the members of the UN, which under Article 18 each have one vote. Membership in the principal organs of limited membership, the Security Council which consists of fifteen members and the Economic and Social Council (ECOSOC) which consists of fifty-four members, is attained through election based upon equitable geographical representation, unless guaranteed by the Charter, as is the case for the permanent members of the Security Council.41
While members of the General Assembly and ECOSOC participate on an equal basis in decision-making, the Charter provides, under Article 27, that decisions of the Security Council on nonprocedural matters be made by an affirmative vote of nine members including the concurring votes of the permanent members.
Most international organizations operate on the basis of “one state, one vote.” However, some provide for weighted voting. This is the case, for example, with the International Monetary Fund (IMF)42 and the International Bank for Reconstruction and Development (IBRD).43
In certain rare cases international organizations can exercise the right to vote on behalf of their members. For example, the draft rules of procedure of the Conference of the Parties of the Framework Convention on Climate Change (FCCC) provide in Rule 41, paragraph 2 that:
Regional economic integration organizations, in matters within their competence, shall exercise their right to vote with a number of votes equal to the number of their member States that are Parties to the Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa.44
Organizations with two-tier membership, such as UNESCO, may provide for different participation rights for different types of members. Under Article IV, paragraph 8 of the UNESCO Constitution, state members are each entitled to one vote in the General Conference, which is not a right granted to associate members.
References(p. 974) Accreditation and Representation
Rights of membership can only be exercised by duly accredited representatives. In the case of the UN, the General Assembly has, on occasion, adopted resolutions that have excluded the representatives of a particular authority. Such resolutions have either involved situations in which the representatives of two rival authorities have sought to represent a single member or in which the Assembly has excluded the representatives of a member when the member has either not complied with decisions of the organization or when the Assembly has sought to condemn the member’s policies and practices.
General Assembly Resolution 396 (V) of December 14, 1950, entitled “Recognition by the United Nations of the representation of a Member State,” recommended that, whenever more than one authority claims to be the government entitled to represent a member state in the UN and this question becomes the subject of controversy in the UN, the question should be considered in the light of the purposes and principles of the Charter and the circumstances of each case. That resolution also recommended that the attitude adopted by the General Assembly concerning any such question should be taken into account in other organs of the UN and in the specialized agencies. However, any view on such a question should “not of itself affect the direct relations of individual Member States with the State concerned,” thus emphasizing that any decision on representation should not affect what position member states may take in their bilateral relationships and pursuant to their own domestic law.45
In the case of China, the representatives of the National Government of China were seated until the adoption of Resolution 2758 (XXVI) of October 25, 1971, entitled “Restoration of the lawful rights of the People’s Republic of China in the United Nations.” In that resolution, the General Assembly decided “to recognize the representatives of [the People’s Republic of China] as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek … ”
More recently, the General Assembly, in response to an unconstitutional change of government in Honduras, adopted Resolution 63/301of June 30, 2009 condemning the coup d’état, demanding “the immediate and unconditional restoration of the legitimate and Constitutional Government of the President of the Republic of Honduras,” and calling “firmly and unequivocally upon States to recognize no Government other than that of the Constitutional President.” The UN Office of Legal Affairs advised that until the General Assembly decided otherwise, the UN Secretariat should act in a manner consistent with Resolution 63/301, which meant that only those delegates from Honduras who could formally confirm that References(p. 975) they were the duly authorized representatives of the previous government should be allowed to participate in the work of the General Assembly and its subsidiary bodies.46 This had the effect of excluding the de facto authorities from Honduras from participating in UN meetings.
Several days later, the Organization of American States (OAS) decided on July 4, 2009 to suspend Honduras from its right to participate in the OAS, in accordance with Article 21 of the Inter-American Democratic Charter.47
The Credentials Committee, a nine-member committee appointed under the Rules of Procedure of the UN General Assembly, reviews credentials and makes recommendations to the General Assembly. Both the Committee and the Assembly have on occasion adopted resolutions refusing to accept the credentials submitted by particular members on behalf of their representatives.48 This has had the effect of barring those representatives from participating in the meetings of the General Assembly and its subsidiary bodies, even though those states remained members of the UN.
One such case involved South Africa. The UN Office of Legal Affairs expressed the view in relation to South Africa’s credentials that should the General Assembly, where there is no question of rival claimants, reject the credentials of a member for the purpose of excluding it from participation in its meetings, this would have the effect of suspending a member state from the exercise of rights and privileges of membership in a manner not foreseen by the Charter, would not satisfy the requirements of Article 5 of the Charter that deals with suspension, and would therefore be contrary to the Charter.49
However, at the Twenty-Ninth Session of the General Assembly in 1974, both the Credentials Committee and General Assembly decided not to accept the credentials of South Africa on the grounds of its apartheid policies.50 The President of the General Assembly made a ruling which he emphasized was strictly within the framework of the Rules of Procedure of the General Assembly and stated that the rejection of South Africa’s credentials was “tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work.”51
On December 16, 1974 the General Assembly adopted Resolution 3324 (XXIX) E expressly recommending “that the South African regime should be totally excluded from participation in all international organizations and conferences under the References(p. 976) auspices of the United Nations so long as it continues to practise apartheid and fails to abide by United Nations resolutions concerning Namibia and Southern Rhodesia.”
South Africa continued to be a member of the UN.52
Other techniques used by the General Assembly to restrict participation have included taking ad hoc procedural decisions that have prevented representatives, including Heads of State, from speaking in the General Assembly. This was the case when the General Assembly voted to prevent President Rajoelina of Madagascar from addressing the General Assembly on the grounds that he had come to power through unconstitutional means.53
Obligations of Membership
The UN Charter imposes specific obligations on its members, which, under Article 2, paragraph 2, they must “fulfil in good faith … in accordance with the present Charter.”
These obligations are of two types. The first is financial. Article 17, paragraph 2 provides that, “[t]he expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.”
The effect of failing to meet this obligation is set forth in Article 19, which provides that:
[a] Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member.
This loss of vote occurs ipso facto and Article 19 does not call for a decision of the General Assembly prior to the deprivation of vote.54 The Secretary-General informs the President of the General Assembly about arrears in the form of a letter55 and a general practice has evolved whereby the attention of the General Assembly is drawn to the information contained in this document.56 The direct effect of Article References(p. 977) 19 is taken account of by either not allowing a member state to vote or not distributing a ballot paper to it. As far as authorization to exercise the right to vote in cases where the failure to pay is due to conditions beyond the control of the member, this is considered by the Committee on Contributions, a subsidiary body of the General Assembly. Member states which are in arrears can make their case to the Committee through both written and oral submissions which then makes a recommendation to the General Assembly.57 The General Assembly takes its decision by a majority of members present and voting.
The second type of obligation imposed on UN members relates to the maintenance of international peace and security. Under Article 25, “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”58
Should there be any conflicting obligations between those assumed by a member under the Charter and obligations under another international agreement, Article 103 provides that the “obligations under the present Charter shall prevail.”
The treaty or constitutive act of an intergovernmental body can also allow for the participation of nonmember states or other entities and international organizations, but without the right to vote.
For example, under Article 35(2) of the Charter:
In addition, under Articles 32 and 50 of the Charter, a nonmember state enjoys the right to participate without vote in discussions relating to a dispute under consideration by the Security Council to which it is a party as well as to engage in consultations with the Security Council on preventive or enforcement measures if the nonmember state finds itself confronted with special economic problems arising from execution of those measures.
While not specifically provided for in the Charter of the UN, the Secretary-General has provided observer facilities in the General Assembly to nonmember References(p. 978) states that were admitted as full members of one or more specialized agencies or the International Atomic Energy Agency or had become parties to the Statute of the International Court of Justice, and which maintained permanent observer offices at headquarters. This has included Switzerland that became a member of several specialized agencies prior to becoming a member of the UN, such as UNESCO, UNIDO, as well as the World Health Organization.
The General Assembly currently takes a specific decision on each state or organization that is granted observer status. By Decision 49/426 of December 9, 1994 the General Assembly, in a decision entitled, “Question of criteria for the granting of observer status in the General Assembly,” determined that “the granting of observer status in the General Assembly should in the future be confined to States and to those intergovernmental organizations whose activities cover matters of interest to the Assembly.”
At present, the Holy See and the State of Palestine participate as observer states pursuant to Resolutions 58/314 of July 1, 2004 and 67/19 of November 29, 2012 respectively, which grant to them specific rights and privileges of participation in UN organs as observers. International organizations such as the International Committee of the Red Cross, the International Federation of the Red Cross and Red Crescent Societies, and the Sovereign Military Order of Malta, and intergovernmental organizations and specialized agencies also enjoy observer status in the General Assembly.59
In addition to the two states that have observer status in the General Assembly and its subsidiary bodies, two nonmember states, the Cook Islands and Niue have participated on an equal basis with member states in certain conferences convened under the auspices of the UN. While the formulas used by the General Assembly that allow for equal participation have differed, they have generally included wording to the effect that a conference would be open to the full participation of “all States” or to “Member states and states members of Specialized Agencies.”60
The ECOSOC rules of procedure,61 as well as those of their functional commissions,62 allow for the participation of nonmember states, national liberation movements, specialized agencies, intergovernmental organizations that enjoy References(p. 979) observer status with the General Assembly or those that are designated on an ad hoc or continuing basis by ECOSOC, and NGOs in consultative status with ECOSOC. The latter is pursuant to Article 71 of the Charter, which authorizes ECOSOC to make suitable arrangements for consultation with NGOs, which are concerned with matters within its competence.63
NGOs also participate within the UN in UN Conferences and other bodies convened under the auspices of the General Assembly, such as the High-Level Political Forum on Sustainable Development.64
Finally, an international organization can partner with nonmember countries in executing its activities. A recent example is the NATO Partnership for Peace program. Twenty-two states participate in this program, which involves practical bilateral cooperation between individual Euro-Atlantic partner countries and NATO.65
Suspension and Expulsion
A distinction should be made between the suspension of the rights of membership, which can mean the complete or partial suspension of rights and privileges in organs in which a member is represented, and expulsion, which means that a member ceases to be a part of an international organization.
Article 5 of the UN Charter provides that “[a] Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council.”
The UN Office of Legal Affairs has advised that Article 5 lays down the following requirements for the suspension of a member from the rights and privileges of membership:
References(p. 980) (b) The Security Council has to recommend to the General Assembly that the member be suspended from the exercise of the rights and privileges of membership.
The General Assembly must act affirmatively on the forgoing recommendation by a two-thirds vote, in accordance with Article 18, paragraph 2 of the Charter, which lists “the suspension of the rights and privileges of membership” as an “important question.”66 No member of the UN been suspended from the rights and privileges of membership under Article 5.
There has, however, been a case in which a member has been suspended from participation in a subsidiary body of the General Assembly. When establishing the Human Rights Council by Resolution 60/251 of March 15, 2006, the Assembly decided that when electing the forty-seven members of the Council, members shall take into account the contribution of candidates to the promotion and protection of human rights. The Assembly further decided that it could, “by a two-thirds majority of the members present and voting … suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights.”67 Thus, by Resolution 65/265 of March 1, 2011, the Assembly decided to suspend Libya’s rights of membership in the Human Rights Council.
There has been some practice of suspension by regional organizations. One well-known example relates to Cuba and the OAS. Notwithstanding the fact that Cuba was a founding member of the OAS, it was excluded from participating in OAS activities between January 21, 1962 and June 3, 2009.68
Article 23 of the Constitutive Act of the AU authorizes the Assembly to impose sanctions on any member that defaults on the payment of its contributions to the budget and on any member that fails to comply with the decisions and policies of the Union, and Article 30 provides that, “Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union.”
Decisions have been taken by the AU Peace and Security Council suspending member states from its activities. For example, on March 20, 2009 the Peace and Security Council decided, in accordance with the Lomé Declaration on Unconstitutional Changes of Government and the Constitutive Act of the AU, “to suspend Madagascar from participating in the activities of the AU until the restoration of constitutional order.” It also decided to impose measures, “including sanctions, on the perpetrators of the unconstitutional change and on all those who contribute to the maintenance of the illegal status quo, if constitutional order is not restored.”69 Similarly, after the coup d’état in Guinea Bissau on April 12, 2012, References(p. 981) the Peace and Security Council decided, “to suspend, with immediate effect, the participation of Guinea Bissau in all activities of the African Union until the effective restoration of constitutional order.” Furthermore, “given the frequency of coups d’état in Guinea Bissau,” the Peace and Security Council requested the AU Commission in consultation with ECOWAS and the AU partners to submit proposals “for additional sanctions against the perpetrators of the coup d’état and their civilian and military supporters, including travel ban, asset freeze and other measures.”70
The Constitutions and Conventions of many specialized agencies allow them to implement decisions on suspension made by the UN. For example, Article II, paragraph 4 of the UNESCO Constitution provides that “Members of the Organization which are suspended from the exercise of the rights and privileges of membership of the United Nations Organization shall, upon the request of the latter, be suspended from the rights and privileges of this Organization.” In addition, Article IV, paragraph 8 of the UNESCO Constitution does not allow a member state to have a vote in the General Conference if the total amount of contributions due from it exceeds the total amount of contributions payable by it for the current year and the immediately preceding calendar year. Like the UN Charter, the UNESCO Constitution provides in Article IV, paragraph 8 for the possibility of an exception under this paragraph, “if [the General Conference] is satisfied that failure to pay is due to conditions beyond the control of the Member State.”
Similar provisions are contained in the Conventions of other specialized agencies.71
Expulsion from the UN is addressed in Article 6 of the Charter, which states that, “[a] Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon recommendation of the Security Council.” This provision echoes the provision on membership—that is, if a state is admitted to membership by the General Assembly upon recommendation of the Security Council, then it should be expelled in a similar manner.
No member of the UN has been expelled from membership, although attempts to apply Article 6 have been made. For example, on December 22, 1955, a draft Security Council resolution proposed “to expel Israel from the United Nations under Article References(p. 982) 6 of the Charter for her persistent violation of the principles of the Charter.”72 However, the Security Council did not vote on it.73
Efforts were also made to expel South Africa from membership. Specifically, the General Assembly, affirming that the racial policies being pursued by the government of South Africa were a “flagrant violation of the Charter of the United Nations and the Universal Declaration of Human Rights and [were] inconsistent with the obligations of a Member State,”74 requested, “the Security Council to take appropriate measures, including sanctions, to secure South Africa’s compliance with the resolutions of the General Assembly and of the Security Council on this subject and, if necessary, to consider action under Article 6 of the Charter.”75 The Security Council did not react to this request.76
The UN came closest to applying Article 6 when in October 1974 the Security Council discussed a draft resolution “recommend[ing] to the General Assembly the immediate expulsion of South Africa from the United Nations in compliance with Article 6 of the Charter.”77 The draft resolution failed to be adopted due to the negative votes of three permanent members, France, United Kingdom, and the United States.78
Like suspension, a member state’s expulsion from the UN could affect its membership in the specialized agencies of the UN. Article II, paragraph 5 of the UNESCO Constitution provides that, “Members of the Organization which are expelled from the United Nations Organization shall automatically cease to be Members of this Organization.”79 There is no practice in the UN or specialized agencies implementing this provision on expulsion.
The UN Charter contains no express provision prohibiting, permitting, or regulating the question of withdrawal from the Organization, and the Organization has on only one occasion had to deal with this situation. In 1965, Indonesia informed the Secretary-General, after the seating of Malaysia as a member of the Security References(p. 983) Council, that the government of Indonesia had decided to withdraw from the UN.80 The following year, Indonesia informed the Secretary-General that Indonesia had decided to resume participation in its activities starting with the Twenty-First Session of the General Assembly.81
The constitutions of some of the specialized agencies allow for withdrawal82 or denunciation.83 According to the UN Handbook on the Final Clauses of Multilateral Treaties, “[t]he words denunciation and withdrawal express the same legal concept. Denunciation (or withdrawal) is a procedure initiated unilaterally by a State to terminate its legal engagements under a treaty. The treaty in question continues to produce its effects with respect to other parties to the treaty.”84
Article 31 of the Charter of the AU on the cessation of membership provides:
1. Any state which desires to renounce its membership shall forward a written notification to the Chairman of the Commission, who shall inform Member States thereof. At the end of one year from the date of such notification, if not withdrawn, the Act shall cease to apply with respect to the renouncing State, which shall thereby cease to belong to the Union.
2. During the period of one year referred to in paragraph 1 of this Article, any Member State wishing to withdraw from the Union shall comply with the provisions of this Act and shall be bound to discharge its obligations under this Act up to the date of its withdrawal.
Article 50, paragraph 1 of the Treaty of the European Union provides that “[a]ny member state may decide to withdraw from the Union in accordance with its own constitutional requirements.”
Membership remains a fundamental constitutional question for any international organization and its members.85 This was recently illustrated by the application by References(p. 984) Palestine for membership in the UN and the divisions that ensued among members over its application.86 Given the huge growth in the number of international organizations since 194587 and the fact that international organizations are becoming an increasingly important, and even indispensable, venue for the conduct of international relations, being granted admission to an international organization can be seen as a practical necessity for states. In addition, gaining membership is seen as a device for affirmation and legitimacy in the international community.
Moreover, it appears to be important to members of international organizations to maintain their membership even when faced with criticism or worse from within the organization. Notwithstanding repeated condemnation, including the application of sanctions, for example, states have chosen to remain members of international organizations at both the universal or regional level. This suggests that the value associated with membership and participation in these organizations is substantial.
The suspension of member states from the AU in recent years is a new phenomenon in contemporary practice and can be contrasted with the lack of practice with suspension or expulsion by the UN under the relevant provisions of the Charter. It should be noted, however, that the absence of such practice at the UN may have a variety of explanations. While it could reflect, for example, that members have lacked the necessary resolve to implement these provisions, it may also result from their belief that the Organization’s interests are better served by having offending members within as opposed to outside its ranks. Moreover, as noted, members have found ad hoc ways to curb an offending member’s rights of participation in organs such as the General Assembly through the Assembly’s rules of procedure. While this ad hoc approach may have given the Organization more flexibility when dealing with offending members, it has also meant that there is less predictability and less certainty when it comes to membership and rights of participation.88
9 League of Arab States, Charter of Arab League, March 22, 1945, http://www.refworld.org/docid/3ae6b3ab18.html.
10 African Union, Constitutive Act of the African Union, July 11, 2000, http://www.au.int/en/about/constitutive_act.
11 EU, EU Treaties, Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, http://europa.eu/eu-law/decision-making/treaties/index_en.htm.
12 EU, Accession criteria (Copenhagen criteria), http://europa.eu/legislation_summaries/glossary/accession_criteria_copenhague_en.htm.
13 European Commission, Conditions for membership, http://ec.europa.eu/enlargement/policy/conditions-membership/index_en.htm.
14 NATO, Membership Action Plan (MAP), http://www.nato.int/cps/en/natolive/topics_37356.htm.
16 For a list of Organizations of which the EU is a member, see Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity, 5th rev. ed. (Leiden: Martinus Nijhoff Publishers, 2011), 72–6.
41 Under para. 3 of Res. 1991 A (XVIII), the General Assembly decided that the ten nonpermanent members of the Security Council shall be elected according to the following pattern: five from African and Asian states, one from Eastern European states, two from Latin American states, and two from Western European and other states. Under para. 4 of Res. 2847 (XXVI), the General Assembly decided that the fifty-four members of ECOSOC as per Art. 61 of the Charter shall be elected according to the following pattern: fourteen members from African states, eleven members from Asian states, ten members from Latin American states, thirteen members from Western European and other states, and six members from Eastern European states.
43 IBRD, Articles of Agreement of the International Bank for Reconstruction and Development, Art. V. The actual number of votes of each member state can be found on the website of the IBRD, http://web.worldbank.org.
60 The conference convened under the auspices of the General Assembly to draft and to sign both the Convention relating to the Status of Refugees and the Protocol relating to the Status of Stateless Persons was open, pursuant to para. 4 of Res. 429 (V) of December 14, 1950 to “Members and non-members of the United Nations.” Paragraph 16 of GA Res. 67/207 of December 21, 2012 on the follow-up to and implementation of the Mauritius Strategy for the Further Implementation of the Program of Action for the Sustainable Development of the Small Island Developing States and para. 15 of Res. 68/279 of June 30, 2014 on the 3rd International Conference on Financing for Development provided that the conference shall be open to “States Members of the United Nations or States members of Specialized Agencies.”
65 NATO, The Partnership for Peace Program, http://www.nato.int/cps/ar/SID-91A898D5-7584DA15/natolive/topics_50349.htm.
68 Final Act, 8th Meeting of Consultation of Ministers of Foreign Affairs serving as Organ of Consultation in Application of the Inter-American Treaty of Reciprocal Assistance, Punta Del Este, Uruguay, January 22–31, 1962 (OEA/Ser.C/II.8, 1962).
73 Simma et al. (ed.), The Charter of the United Nations, vol. 1, 382. See also “Extracts Relating to Article 6 of the Charter of the United Nations,” in Repertory of Practice of United Nations Organs, Supp. 6 (1979–84), vol. 1, 130.
81 Egon Schwelb, “Withdrawal from the United Nations: The Indonesian Intermezzo,” American Journal of International Law 61 (1967): 661–72. For further discussion on the history of the Indonesian “withdrawal,” see UN Juridical Yearbook (1966): 222.
82 See Art. II, para. 6 of the UNESCO Constitution and Art. 1, para. 5 of the ILO Constitution; Art. XIX of the Constitution of the Food and Agriculture Organization; the Constitution of the UN Industrial Organization; Art. 73(a) of the 1948 Convention on the International Maritime Organization.
84 Final Clauses of Multilateral Treaties, Handbook (2003), https://treaties.un.org/doc/source/publications/FC/English.pdf.
85 Inis L. Claude, Swords into Plowshares: The Problems and Progress of International Organization (New York: Random House, 1964), 85; Alison Duxbury, The Participation of States in International Organizations: The Role of Human Rights and Democracy (Cambridge: Cambridge University Press, 2011), 16.