Competence of General Assembly to Admit a State to Un

7/29/2019 Competence of General Assembly to Admit a State to Un.

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Public InternationalLaw

CASE STUDY ON: COMPETENCE OF GENERAL

ASSEMBLYREGARDING ADMISSION OF STATE TO THE

MEMBERSHIP OF UNITED NATIONS.

NAME OF THE COURT: INTERNATIONAL COURT OFJUSTICE

JUDGEMENT DELIVERED ON: ADVISORY OPINION

MARCH 3RD, 1950

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NAME: PALLAVI BAJPAI

ROLL NO: 26

BATCH: LL.M 1ST

YEAR

INDEX

1. ABSTRACT

2. INTRODUCTION

3. BACKGROUND OF THE CASE4. FACTS OF THE CASE

5. ISSUES PRESENTED BEFORE ICJ

6. WRITTEN STATEMENT PRESENTED BEFORE ICJ

7. ROLE OF GENERAL ASSEMBLY FOR ADMISSION OF STATE TO UN

8. ROLE OF SECURITY COUNCIL FOR ADMISSION OF STATE TO UN

9. ADVISORY OPINION

10.DISSENTING OPINION GIVEN BY M ALVAREZ

11.DISSENTING OPINION GIVEN BY M AZEVEDO

12.CONTRIBUTION OF THE CASE TO INTERNATIONAL LAW

13.CONCLUSION

14.BIBLIOGRAPHY


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ABSTRACT:

Introduction:

This case deals with the question whether a state can be admitted on the decision

of the general assembly alone to the membership of UN.

Brief facts:

The question of the competence of general assembly regarding admission of

states to the membership of un arose due to the exercise of veto by some

permanent members of the security council ,as it could not take a decision to

make recommendation the application of membership of several states .some

states expressed the view that in such a situation a state can be admitted to the

membership of un only by the decision of general assembly .Argentina and some

other states expressed this view in the general assembly that if the security councilis unable to make any recommendations due to exercise of veto by some of its

permanent members ,the general assembly becomes entitled to. Admit a state

concerned by its decision .the general assembly referred through a resolution of

November 22, 1949, the following question for advisory opinion to the ICJ.

can the general assembly admit a state to the un by its decision ,in case the

security council is unable to make any recommendations due to exercise of veto

by some permanent members?

HELD:

The court answered the question in the negative by 12 votes against 2and held

that the affirmative recommendation of the security council and the decision ofgeneral assembly both are necessary for admission of a state to the membership

of the UN The court however laid down following principles of law in this context:

Principles laid down were:

1 The court ruled that according to para2 article 4of the un charter ,a state may be

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admitted to the membership of un by both, the affirmative recommendation of

security council and the decision of the general assembly as both are essentials

for the admission of state to the membership of un.

2 The court made it clear that it is competent to interpret the UN charter wheneverrequested to do so.

3 In this way, it is apparent that both the affirmative recommendation of Security

Council and the decision of general assembly by 2/3rd majority are necessary

condition for admission of a state to membership of UN.

Introduction

This case seeked advisory opinion of ICJ regarding competence of general

assembly to admit a state for membership in UN pursuant to Article 4, paragraph

2, of the Charter, when 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?

The above case also throws light on the following:

Character of the question.

absence of recommendation from security council regarding admission to un

Power of general assembly regarding admission to membership in the UN in

absence of a recommendation of the Security Council.

meaning of the term 'upon the recommendation of the security council'

Interpretation of a treaty provision according to its natural and ordinary

meaning in its context-TRAVAUX PREPARATOIRES.

Interpretation in the light of the general structure of the charter.

Background of the case:


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Chapter 2 of the un charter talks about membership .There are 2 kinds of

members in the un firstly those who participated in the un conference on

international organization at San Francisco and others are those states

acquiring membership according to the criteria laid down in article 4,whichreads as 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. 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. In 1948 it was the first time when

the issue regarding conditions for admission of a state to membership in UN

was brought before ICJ.

The court in this case after holding itself competent enough to interpret theprovisions of un charter analyzed the provisions of article 4 regarding

admission of state to UN. ICJ observed that article 4 Para 1 within itself

encompasses conditions for admission of a state to un.it specifically provides

that a peace loving state that is capable and willing to carry out the

provisions of un charter could be admitted to the UN.General assembly

believed that the utmost important guidelines for the development of un is

that the states should be peace loving and capable of performing the

obligations given under the charter. Taking this into consideration UN

General Assembly, during its third session, in resolution 197 of 8th

December 1948 made a recommendation to Security Council that each

member of the Security Council, in exercising its votes on admission of state

to UN should act in accordance with the advisory opinion given by ICJ in the

above case, that a state is not entitled to make its consent to admission

based on a condition not expressly provided in article 4. Even after the

above Judgment and resolution, there were incidents of failure of Security

Council in providing recommendation for admission of States to UN, which

led to this case.

Facts of the case:

During the fourth session of general assembly it received applications for

admission by nine states, i.e. Austria, Ireland, Italy, Ceylon, Korea, Portugal,

Jordan, Finland and Nepal for reconsideration by the Assembly as Security

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Council failed to make recommendation for admission of these states. Though

these states manage to secure a majority of nine votes out of total eleven

members, still Security Council failed to provide recommendation to General

assembly due to negative vote of one of the permanent member.Consequently UN General Assembly felt the need for development of United

Nations as all applicant states possessed the required qualification for

membership as given under Art 4 of the UN charter.

On 22nd November 1949 the general assembly in its 252nd plenary meeting

reaffirms that in their judgment all these nine states are peace loving states, which

are capable for fulfilling all the obligations provided under the UN charter and

therefore entitled to admission to UN General Assembly. Further they send these

applications to Security Council for reconsideration and requested them to rely on

the criteria laid down by the ICJ in previous case relating to admission of states to

UN and to refrain from using Veto while dealing with question of admission of a

state.

General Assembly felt that such situation is a hindrance in the path for the

development of United Nations and passed a resolution seeking advisory opinion

from international Court of Justice, to look into the procedure for admission of

state under article 4 Para 2 regarding whether the General Assembly is entitled to

provide for admission of a state when Security Council failed to make a

recommendation regarding the same.

Issue presented before ICJ:

General assembly seeked advisory opinion from the International Court of Justice

on the issue: whether general assembly is competent to admit a state to United

Nations under Article 4 Para 2, when Security council failed to give its

recommendations for admission due to the reason of a candidate failing to obtain

requisite majority in the security council or due to negative vote of a permanent

member.

Written Statement presented before the international court of justice

The UN secretary General considered it to be his duty to furnish the Court with

information which will render assistance to the Court while dealing with the present


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issue. The Secretary General submitted a written statement to ICJ which briefly

describes the historical background of the question. The statement presents

relevant records of United Nations conference on International Organization

dealing with drafting of Article 4 paragraph 2 of the UN charter.During the first session of the General assembly, the discussion regarding right of

Assembly to discuss those application rejected by the Council were taken up. The

representative of Argentina made their stand that the General Assembly is a

sovereign body in examination of all question regarding admission or non-

admission of new members. They made an argument that the General assembly

is not bound to abide by the recommendation made by the Security Council. But

on the course of the same discussion a number of representatives made their

position that General assembly is incompetent to admit states to UN without the

recommendation of Security Council.

This debate started in the First session was further continued in the second

session of the Assembly when representatives of Argentina proposed for the

admission of Jordan, Portugal, Italy and Austria which received seven or more

votes in the Council. Argentina along with Brazil and Chile called the General

Assembly to make a declaration that these countries are peace loving nations and

are therefore entitled to admission to UN.

According to a draft resolution submitted to the Adhoc political committee in its

22nd meeting during the first part of the third session of Assembly, it should be

deemed as a recommendation by the Security Council if application placed before

it received a majority of seven affirmative votes and failed to get vote of apermanent member. Assembly has got power to reject a favourable

recommendation or to grant an application with unfavourable recommendation if

supported by a two third majority. But this proposal was rejected when it was put

to vote.

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ROLE OF GENERAL ASSEMBLY FOR ADMISSION OF STATE TO UN:

Written statement submitted to ICJ also contains a set of procedure followed by

General assembly and the council during the fourth session of Assembly, i.e. the

session which referred the case to ICJ. According to the general assembly rules,any state which desires to become a member of UN should submit an application

regarding the same to the Secretary General. Secretary General should then send

this application to General Assembly if it is in session or to all of its members if it is

not in session. He should then refer the application for consideration of Security

Council.

If Council recommends the applicant for membership, then the general Assembly

should determine whether the applicant is a peace loving states and is capable of

fulfilling the obligation given under the charter by two third majorities. In case if

security council does not recommend the applicant state for membership,

assembly shall after giving due consideration to the report send the application to

Security council for its reconsideration along with a full record of all discussions

that took place in the Assembly regarding the same.

ROLE OF SECURITY COUNCIL FOR ADMISSION OF STATE YO UN:

According to the rules of Security Council regarding admission of states to UN,

after the application for membership to UN is referred to it by the Secretary

General, the application should be placed before committee constituted for

considering the applications for admission of states. This committee shouldconsist of representatives of all members of the council. Committee should within

thirty five days of reference report its conclusion to the council.

On the basis of this report the Security Council shall decide whether the applicant

state is a peace loving state which is capable of doing all obligations given under

UN charter on not and accordingly to recommend the applicant for membership of

UN or not. If Security Council decides to recommend the applicant for

membership, it should forward to General Assembly the recommendation with a

complete record of the discussion. On the contrary if it decides not to give its

recommendation, then it shall submit a special report to the Assembly stating the

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Travaux prepatories of Article 4 paragraph 2 of charter of United Nations

Article 4 Para 2 has been adopted from the Dumbarton Oaks Proposals dealing

with the procedure for admission of new members to the organization underparagraph 2 of Chapter V, section B.

There were several proposals in relation to this provision by different nations in

Dumbarton. Delegates of Egypt proposed that the Assembly should admit new

members, not upon recommendation of Security Council but after taking its

advice. This indicated that the main responsibility of Security Council is to maintain

peace and security and admission of states are not of this character. According to

the view expressed by Australia, recommendation of Security Council is required

only in those situations where a question of threat to international peace is

involved and in all other cases general assembly can be the competent body to

take decision relating to admission of states. On the contrary according to US,

recommendation of Security Council should be an absolute pre condition in order

to take in confidence all world nations that there is no threat to world community

by the said applicant.

After lots of discussion in various committees and international venues, the 9th

plenary session on 25th June 1945 unanimously adopted the final text of UN

Charter Para 2 which runs as follows the admission of any state to membership

in the United Nations will be effected by a decision of the General Assembly uponthe recommendation of the Security Council.

Advisory Opinion given by ICJ

International court was called upon to interpret the procedure given under article 4

Para 2 relating to admission of states to UN. Request refers to the case of

competency of General assembly to provide for admission of states to UN in a

case where there is lack of recommendation from Security Council. ICJ analysed

in its decision art 4 Para 2 and observed that there is no doubt regarding meaning

of the text. Art 4 Para2 requires two things to effect admission of a state to UN.They are recommendation of Security Council and a decision of the General

Assembly. Court observed that in this article the word recommendation and the

preceding word upon conveys the idea that the recommendation by Security

Council is foundation of decision to admit states and the decision of General

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Assembly necessarily depends on the recommendation made by Security Council.

Thus recommendation of Security Council is a condition precedent to the decision

of Assembly by which admission is affected. The Court refuses to give a different

meaning to the wordings of Art4 Para 2 and said that it is the duty of the Tribunal ,which is called to interpret the provisions of a treaty to give effect to them their

natural and ordinary meaning in the context they occur. If the given words are

capable of making sense in the said context no further interpretation is required for

that. But in case the words in their natural and ordinary meaning are ambiguous

and lead to an uncertain result which is not provided by the section at hand, then

only court has to give a different meaning to the wordings of the treaty.

It is the cardinal principal of interpretation that the words must be interpreted in the

sense which they would normally use unless such an interpretation leads to an

undesirable results. When Courts can give effect to a provision of a treaty by

giving the words their natural meaning, it should not interpret the words in a

manner to give them an entirely different meaning. According to ICJ in the present

case, court found no difficulty in ascertaining the natural and ordinary meaning of

the words in question. Court refused to look into the travaux prepratories and said

that the court will refer to it only when there is an inherent ambiguity in the

wordings of the treaty.

Court observed that UN Charter nowhere mentions that an organ of UN is superior

to other in any manner. Under articles 4, 5 and 6 the Security Council shouldcooperate with the General assembly. Thus General Assembly and Security

Council have concurrent powers in respect to matter mentioned in Article 4. Court

opined that to hold that the Assembly has a power to admit a state to membership

in organization in absence of a recommendation of Security Council that would be

to deprive Council of an important power which has been entrusted to it. Court

refused to incorporate into Art 4 Para 2 any concept of unfavourable

recommendation and said that the provision here expressly talks only about a

favourable recommendation from the part of the Security Council as a condition

precedent for admission of States to UN. Court thus made it clear that Assembly

has no power to attribute to a vote of Security Council character of arecommendation when council itself considers that there is no recommendation.

Thus ICJ in this case with twelve to two majority made the opinion that in case of

admission of state to UN cannot be effected by a decision of General Assembly

when Security council has not made any recommendation, by reason of the


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candidate failing to obtain the requisite majority or due to the negative vote of any

of the permanent member.

Dissenting opinion given by M Alvarez

Justice M Alvarez dissented from the opinion given by the majority of the judges

and he stated that what really involved in this case was a question relating to right

to veto. He believes that the ICJ giving its opinion failed to take note of the

reasons for which Security Council failed to give its recommendation. The view

that Assembly has no role with regard to admission of states when no

recommendation was given by the Security Council is to reduce its the function of

Assembly into a passive role.

According to him, the role of General Assembly in admission of new members is

an active role. Under Para 2 of Article 4 of the charter two situations may arise,

firstly the state seeking admission might fail to obtain requisite number of votes in

Security Council. In that case it cannot make a recommendation to the Assembly.

Secondly it might happen that the state seeking admission has obtained requisite

number of votes but Council failed to give recommendation due to negative vote of

one permanent member. According to him such conditions need special

considerations.

Veto is a right granted to permanent members with a view to use only in cases ofmatters concerning peace and security. So its exercise should be placed within its

limits. If this right is used in all circumstances it will be contrary to the objectives of

UN. Such a use will definitely reduce the importance of UN. According to him,

even if the right to veto is given to the permanent members in regard to

recommendation of new members to UN, General Assembly may still determine

whether this power has been abused or not.

According to him General Assembly is entitled to ask the council for what reason it

has failed to recommend a state seeking admission and to check whether veto

power has been abused or not. He believes that this solution is consistent with thespirit of UN charter with the consequence that all members of international

community who fulfil the condition laid down in article 4 should be admitted to UN.

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Dissenting opinion given by M Azevedo

Azvedo also raised the view that the question submitted to Court was not in ageneral way whether a state should be admitted when the council had made no

recommendation instead it refers precisely to cases when there is an absence of

recommendation due to specified reasons. The request for opinion contemplates

the case in which an applicant state which has obtained, seen positive votes has

been opposed by a permanent member of the council

.

According to him General Assembly has a right to watch over all matters

concerning UN. According to him the charter gives Security Council a dual

character. On one side it is entrusted with functions which it should perform in

complete autonomy and on other side certain functions which it should perform

along with other organs. This situation arises in a case which asks the Security

Council to give recommendation to Assembly for certain matters.

According to him the classic rule of international law is to obtain majority of votes,

and if a state manages to get seven or more votes in Security Council then it can

be regarded as a valid recommendation by Security Council, though it fails to

make it due to negative vote of any of the permanent members. Thus if in the

report of the Council, general assembly observes that the applicant states has got

requisite majority it may either accept or reject the application with two thirdmajority and on the other hand if the application has failed to obtain seven

favourable votes, Assembly would be under an obligation to take note of absence

of recommendation and may send the application for further consideration of the

Council.

Contribution of the case to International Law

The coming up of this case and seeking advisory opinion has contributed towards

the development of international law in a number of ways:

a) It consolidated the rules relating to admission of state to UN.b) It pointed out no organ of UN is superior to the other and holding such a view

will be against the spirit of UN charter.

c) ICJ can answer abstract questions and can give its opinion

d) The court in this case made it clear that in case of interpretation of treaties the


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words of the treaty should be taken to have their natural meaning in their context.

Courts should give a meaning other than the meaning contemplated in the plain

text only when the plain reading of the text invites certain ambiguity. Court in this

case refused to look into the travaux prepratories and observed that the first dutyof the tribunal is to give effect to the words in the context they are used.

So As a matter of fact the Advisory opinion given in this case besides being a

guideline in matter of procedure to be followed in cases of admission of state also

establishes the principle for interpretation of treaties.

CONCLUSION:

In my opinion ICJ took a very restrictive view while analysing article 4 para2.it only

gives importance to the text and totally forgets the context in which the case

happened. The opinion given by the court failed to take note of veto power of the

permanent members which was grossly misused at that time for their political

benefit. This author agrees with the dissenting opinion given by Azevedo and

Alvarez. They only took a view of the circumstances that led General Assembly to

make such a resolution under 252nd plenary meeting. Court should have look into

the use of veto as done by the Judges giving the dissenting opinion. Such a view

would have as helped for a faster development of UN. As the same court has

earlier given that only the criteria mentioned in Art 4 para1 shall be used while

judging whether an applicant state is eligible for admission of state, it should nothave ignored in this case the fact that the permanent members are using their

exclusive powers to gain their political motives and thereby are misusing the

procedure given under Art 4 Para 2.

BIBLIOGRAPHY:

ADVISORY OPINION- COMPETENCE OF GENERAL ASSEMBLY TO

ADMIT A STATE TO UN 1950, INTERNATIONAL COURT OF JUSTICE

OFFICIAL WEBSITE.

STARKE J G, AN INTRODUCTION TO INTERNATIONAL LAW TENTH

EDITION.

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Documents

Competence of General Assembly to Admit a State to Un