Public International Law

CASE STUDY ON: COMPETENCE OF GENERAL ASSEMBLY REGARDING ADMISSION OF STATE TO THE MEMBERSHIP OF UNITED NATIONS. NAME OF THE COURT: JUSTICE JUDGEMENT DELIVERED INTERNATIONAL COURT OF

ON: ADVISORY OPINION MARCH 3RD, 1950

NAME: PALLAVI BAJPAI ROLL NO: 26 BATCH: LL.M 1ST YEAR

INDEX
1. ABSTRACT 2. INTRODUCTION 3. BACKGROUND OF THE CASE 4. 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

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 council is 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 of general 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
3

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 whenever requested 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:

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,which reads 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 the provisions 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
5

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

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 nonadmission 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 a permanent 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.

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 should consist 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 same.

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 under paragraph 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 upon the 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
9

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 should cooperate 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 a recommendation 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

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 of matters 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 the spirit 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.

11

Dissenting opinion given by M Azevedo Azvedo also raised the view that the question submitted to Court was not in a general 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 third majority 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

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 duty of 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 not have 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.

13