How states become members of the UN and observers


Membership

Article 4 of the U.N. Charter:

Membership in the United Nations is open to all other [emphasis added] peace-loving states which accept the obligations contained in the present Charter and, in the judgement of the Organization, are able and willing to carry out these obligations.

In Article 4, notice the word other, which is meant to distinguish from the original founding members (1945).

Three Criteria

1) be a state (peace-loving)
2) accept the obligations in the Charter
3) The organization has to judge that the applicant state is able and willing to carry out these obligations

The first ten years of the United Nations produced a lot of disputes about criteria and vetoes were caste. This stopped in 1955 when a package deal was reached: each side of the Cold War had their applicants (allies) admitted.

1948 Question

In 1948, a question arose:

When a members state voted to admit an applicant, could the consider other factors (other than Article 4) in reaching a decision? This question was a result of states voting no on admittance and claiming their vote was contingent on whether or not their allies would be admitted as members. The question was sent to the International Court of Justice (ICJ). The ICJ said no-- other factors cannot be considered.

Members states must base their decision on the criteria contained in Article 4 (whether in the General Assembly or the Security Council).

The Rules of Procedure


1) The Security Council must recommend the admission of the applicant state
2) Following recommendation from the SC, the application goes the General Assembly

This is contained in Article 4(2)

A positive recommendation is needed from the SC. This is the same in other areas: picking a Secretary General, attempts to alter the number of permanent SC seats. The process is documented in the Security Council Provisional Rules of Procedure.

Chapter 10 Rules 58-60

The Secretary General receives the application and sends it to the Security Council. The rules provide that the Council with refer the matter to a committee, which is normally the case.

This is referred to a "Committee of the Whole" -- like most SC committees. A Committee of the Whole is all fifteen members. This committee on new members recommend or does not recommend. The process then goes to the parent organ -- the Security Council. A resolution is usually put into the Committee report and the Council will adopt that resolution and send it the the GA for deliberation. In practice, the GA always votes positively when the SC recommends admission. If the SC doesn't recommend the applicant, the Council (once the info is received from the committee) must make a special report to the GA. It will document that they have reviewed the application but that there is no recommendation for admission. If the SC does not get the required 9 votes with no veto, a report still goes to the GA.

General Assembly Rules of Procedure

Chapter 14 Admission of New Members Rules 134-138

Rule states if the Council does not recommend or if the consideration is postponed, the GA may send, after full consideration of the report, the application back to the SC with a full record of the General Assembly discussion-- for the Security Council's further consideration

In the early years of the U.N., these rules resulted in a back and forth between the the SC and GA. Over the last three decades, this has not been the practice-- it has not been contentious. It is important to note that the U.N. Charter does not have a mandate to recognize states. The recognition of states is up to governments. However, rival governments have attempted use the U.N. process to further a particular agenda.

One notable example of recognition within the UN framework was General Assembly Resolution 2758, where the People's Republic of China was recognized as "the only legitimate representative of China to the United Nations." The PRC assumed its position as one of the permanent five members of the Security Council.

Observer Status

How did it start?
Non-member states asked the Secretary General for facilities to observe the work of the General Assembly.

For example, the Swiss in the late 1940's. Observer states have a nameplate and an office. The Secretary General is the guardian / custodian of treaties. The SG keeps a list of which states are parties and which agreements have been ratified, signed, and /or acceded). Most treaties are open to all states. This is to encourage participation universally. The next question to ask is the following: How does the SG know if an entity is a state or not? Neither the UN or the SG has a mandate to recognize states.

The Vienna Formula

The Vienna Formula was devised in the 1960's and 1970's. When the SG received a request to ratify or accede to a treaty he had a set criteria: 

Is the entity:
1) a member of the United Nations
or
2) a member of a specialized agency
or
3) a party to the statute of the ICJ

The SG reported this criteria to the General Assembly in the 1970's and the GA approved the criteria.

Invitations to UN Conferences

Invitation to US Conferences is open to all states. The SG uses the Vienna Formula to issue invitations.

Non-members states such as the Vatican (Holy See), Palestine, and free association states (for examples, the Cook Islands) are invited. The Cook Islands is a member of specialized agencies and has treaty-making capacity.

The other way to be considered a state under the Vienna Formula is to be a party to the statute of the ICJ. The statue / rules of the ICJ provide for ways that non-members can be party to the statute-- on recommendation of the S.C. (giving conditions) and then upon adoption by the GA.

Switzerland was a party to the ICJ statute for years before it become a member (2002).

Decolonization Process

The Trusteeship Council supervised plebiscites and elections to ensure fairness. There are no rules regulating on when a state is to become an observer or when an entity is a non-member state. The Vienna Formula informs the SG on requests for observers in the GA. Sixteen countries were observers which subsequently became members. The Two Korean states, two German states, and two Vietnamese states participated-- as they were members of specialized agencies.

Non-member observer states are seated after members before other observers in the General Assembly.

Observers did not participate in discussion or speak. They needed permission by the body to speak. Observers were encouraged to speak in the main committees but not in the plenary. Thus, a practice developed. Organizations, national liberation movements, intergovernmental organizations (OAU, AU, EU, Swapo, ANC, PLO) have observer status received via a GA resolution. There are about thirty. Receiving observer status through a GA resolution provided for more rights; it is a mandate from the GA to participate. Switzerland had a nameplate from the SG and needed a special invitation to participate. The GA resolution path to observer status resulted in non-member states becoming members. 

The Holy See became an observer in 1964 but received a resolution (like organizations) in 1994, which spelled out its rights of participation.

Understanding the International Court of Justice (ICJ)

The ICJ is the the principle judicial organ of the UN. Unlike the permanent court of justice with the League of Nations, the ICJ is a part of the institutional structure of the UN. It was established under Article 7 and is one of the six principle organs. Its functions are defined in Chapter 14 of the Charter. Article 92 states that the court is the principle judicial organ of the UN. This is stated again in Article 1 of the ICJ statute.

How is the ICJ different from other international judicial bodies

1) It is one of the six principle organs of the UN (Article 7 of the UN Charter)

Therefore, it must participate and work toward the purposes and goals stated in the U.N. Charter.

2) It is on equal footing with other organs of the UN (each of which recognize the full autonomy of the others).

As opposed to the ICTY (International Criminal Tribunal on Yugoslavia and the ICTR (International Criminal Tribunal on Rwanda), which are subsidiary organs of the Security Council.

The maintenance of international peace and security is the primary purpose of the United Nations (Article 1, para 1 UN Charter). With this main purpose in mind Article 2 lays out the guiding principles to facilitate the attainment of this goal. One of which requires member states to seek a peaceful resolution to their disputes "in such a manner that international peace and security and justice are not endangered."

The list of appropriate methods to pursue peaceful settlement of disputes specifically mention judicial settlement (Article 33 UN Charter). This is clarified with  Article 92 and Article 36(3). Article 92 states that the ICJ is the "principle judicial organ of the United Nations," and Article 36(3) states that legal disputes should be referred to the ICJ. These provisions confer the ICJ's role in the maintenance of international peace.

The court has two distinct procedures in the exercise of its jurisdiction:

1) Contentious Procedures -- main workload

2) Advisory Opinions 

Advisory opinions are not specifically aimed at dispute settlement. By responding to legal questions, it can have a great pacifying affect whether there is a dispute or not. Difference from other international tribunals
The statute of the ICJ provides for a worldwide judicial system. It is open to all UN members.

Non-members are subject to Security Council conditions. This global reach and relevance is reflected in the composition of its members.The court has 15 judges who each serve 9 year terms and are eligible for reelection.

The judges are elected by the UN General Assembly and the UN Security Council with a simultaneous election -- no veto. It is decided by simple majority.

The court's membership reflects the main civilizations and legal systems of the world. Since the 1960's, the membership has been based on regional distribution. This is reflected in Article 9.

Composition

5 Western European / Other
3 Asian
3 African
2 Latin American / Caribbean
2 Eastern European

5 seats are for permanent member countries

The regional distribution is the same for the Security Council.
(5 African /Asian, 1 for Eastern European, 2 Latin American / Caribbean, Two Western European Other)

Distinguishing Feature


The ICJ has general jurisdiction. It is able to deal with any issue of international law.

Other courts / tribunals, for example, Law of the Sea Tribunals or the Appellate Body of the WTO, are presented with cases within a treaty regime. This constrains their ability to serve as a forum for matters of general international law. Such matters are reserved for the ICJ, which can take into account the development in international law across the spectrum of international relations. The existence of the court as a permanent institution (with regulated mechanisms and procedures laid down in the statute) facilitates the peaceful settlement of disputes that otherwise would not be settled or not settled as quickly. Permanency transforms into constancy.

One criticism of the court is that it can have length procedures, which can delay a judgement for years.
However, this criticism is unjustified because such delays are a result of procedural steps by the parties. Sovereign states cannot be prevented from using all the procedural steps at their disposal.

When parties have sough a swift settlement , the court has demonstrated the ability to act quickly (whether application or special agreement).

*If there is a will by the parties and no counterclaims.

For example, a case between Mexico and the USA took 14 months for a judgement.

This case was on a breach of the Vienna Convention on Consular Relations, when the US arrested, detained, tried, and convicted 54 Mexican nationals, sentencing them to death row without Mexico allowing its international legal obligations under Article 5 and 36 under the Vienna Convention.The ICJ operates within the framework of the United Nations. Under Article 94, the Security Council can take measures to ensure compliance. International jurisdiction is matched with responsibility and enforcement. However, it is very rare in the history of the ICJ that its decisions are not complied with, as judgments have been meticulously respected in the past. The American Journal of International Law has stated that the level of compliance has remained at the same high level in recent years while the court's list of cases has steadily grown.The court has limitations in settling disputes peacefully. The organs of the UN have defined roles.

Contentious Capacity

The court can only hear cases by states and only when all parties fall within its jurisdiction in one of the ways laid down in the ICJ statute.

The court capacity depends on the will of the the states involved.
It is based on consent-- Article 36 of the Statute with its root in Article 2.1 of the Charter and the sovereign equality of states.This restricts the ICJ's ability to settle international disputes.
International organizations have no access to the contentious procedure.

Advisory Opinions

Organs of the United Nations and specialized agencies can request advisory opinions. This is specified in Article 96 of the UN Charter.

The General Assembly and Security Council can request opinions on all international law issues.
Specialized agencies can request opinions on issues relation to their specific areas.

The ICJ is the longest running international tribunal. It has rendered over 100 judgments across the globe on the widest range of legal issues. It has assisted international organizations with advisory opinions on a diverse and range of substantial legal issues.

The ICJ plays an important role in working for peace and security. There are numerous examples of the court's role in this area. 

Some Examples

In 1986-- Border between Burkino Faso and Mali.
The Court secured a cease-fire, fixing the disputed boundary.

In 1994, Twenty year conflict resolved between Chad and Libya. The dispute was over the aouzou strip (Northern Chad). Libyan forces evacuated the disputed area after the judgement under the supervision of Security Council appointed observers.

In 2001, Bahrain and Qatar dispute over various islands and maritime waters. The judgement ended the dispute (which had threatened to escalate to violence numerous times). Both countries were grateful and referred to each other as "sister nations." Bahrain stated that the judgement "contributed to world peace." Qatar stated that there was a "new phase of good relations."

The jurisprudence of the court is a constant that states can refer to in solving disputes before they spiral or escalate. The court was asked to give an advisory opinion on nuclear weapons in relation to humanitarian law. The court stated that it could not rule either way on nuclear weapons being used in self-defense when the survival of the state is in question. However, the court ruled that the most appropriate method for addressing the legal status of nuclear weapons is complete disarmament. States have an obligation to pursue negotiations leading to nuclear disarmament under strict international control. The GA received the opinion well.

In 1986, the court ruled against the United States in a landmark case brought by Nicaragua. It condemned to United States for mining the harbors and supporting the Contras.The court ruled that the United States must pay reparations. The United States refused to pay.

In 2004, the court issued an advisory opinion that Israel's wall is contrary to international law. GA resolution 66/225 supported the opinion.The vote was 167 in favor with 6 abstentions and 7 negative votes. The 7 negative votes were caste by the United States, Canada, Israel, the Marshall Islands, Micronesia, Nauru, and Palau.
The ICJ has played an important role in preventative diplomacy through judgments, advisory opinions, and the progressive development of international law.