Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter)

INTERNATIONAL COURT OF JUSTICE

1948.

May 28th.

YEAR 1948. General List : No. 3.

May 28th, 1948.

CONDITIONS OF ADMISSION OF A STATE

TO MEMBERSHIP IN THE UNITED NATIONS

(ARTICLE 4 O F THE CHARTER)

Request for advisory opinion in virtue of Resolution of General Assembly of United Nations of November 17th, 1g47.-Req~eSt-does not refer to actual vote but to statements made by a Member concerning the vote.-Request limited to the question whether the conditions i n Article 4 , paragraph 1, of the Charter are exhaustive.-Legal or political clzaracter of the question.-Competence of the Court to deaZ with questions in abstract terms.-Competence of the Court to inte9pret Article 4 of the Charter.-Legal character of the rules i n Article 4.- Interpretation based o n the natural meaning of terms.-Considerafiohs extraneous to the conditions of Article 4. Considerations capable of being connected with these conditions.-Procedural character of paragraph 2 of Article 4.-Subordination of political organs to treaty provisions which govern them. Article 24 of the Charter.-Demand o n the part of a Member making its consent to the admission of a n applicant dependent on the admission of other applicants.-Individual consideration of every application. for admission o n its own merits.

ADVISORY OPINION.

Present : President GUERRERO ; Vice-President BASDEVANT ; Jztdges ALVAREZ, FABELA, HACKWORTH, WINIARSKI, ZORIEIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, KRYLOV, READ, HSU MO, A~EVEDO.

composed as above,

gives the following advisory opinion :

On November 17th, 1947, the General Assembly of the United Nations adopted the following Resolution :

" T h e General Assembly, Considering Article 4 of the Charter of the United Nations, Considering the exchange of views which has taken place in the Security Council at its Two hundred and fourth, Two hundred and fifth and Two hundred and sixth Meetings, relating to the admission of certain States to membership in the United Nations, Consideriag Article 96 of the Charter, Requests the International Court of Justice to give an advisory opinion on the following question : 1s a hlember of the United Nat;-ons which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, juridically entitled to make its consent to the adn~ission dependent on conditions not expressly provided by paragraph I of the said Article ? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State ? Instrzlcts the Secretary-General to place at the disposal of the Court the records of the above-mentioned meetings of the Seciirity Council .' '

By a note dated November 24th, 1947, and filed in the Registry on November zgth, the Secretary-General of the United Nations transmitted t o the Registrar a copy of the Resolution of the General Assembly. In a telegram sent on December ~ o t h , the Secretary-General informed the Registrar t h a t the 'note of November 24th was t o be regarded as the official notification and t h a t certified true copies of the Resolution had been despatched. These copies reached the Registry on December ~ a t h , and the question was then entered in the General List under No.

3 The same daÿ, the Registrar gave notice of t h e request for a n opinion t o al1 States entitled t o appear before t h e Court, in accordance with paragraph I of Article 66 of the Statute. Furthermore,

ARTICLE 4 O F T H E CHARTER O F T H E U N I T E D NATIONS 59 as the question put mentioned Article 4 of the Charter, the Registrar informed the Governments of Members of the United Kations, by means of a special and direct communication as provided in paragraph 2 of Article 66, that the Court was prepared to receive from them written statements on the question before February gth, 1948, the date fixed by an Order made on December ~ z t h , 1947, by the President, as the Court was not sitting. By the date thus fixed, written statements were received from the following States : China, El Salvador, Guatemala, Honduras, India, Canada, United States of America, Greece, Yugoslavia, Belgium, Iraq, Ukraine, Union of Soviet Socialist Republics, and Australia. These statements were commiinicated to al1 Members of the United Nations, who were informed that the President had fixed April q t h , 1948, as the opening date of the oral proceedings. A statement from the Government of Siam, dated January 3oth, 1948, which was received in the Reqistry on Februarÿ 14th, i.e., after the expiration of the time-limit, wasaccepted by decision of the President and was also transmitted to the other Members of the United Nations. By its Resolution the General Assembly instructed the Secretary-General to place a t the disposal of the Court the records of certain meetings of the Security Council. In accordance with these instructions and with paragraph 2 of Article 65 of the Statute, where it is laid down that every question submitted for an opinion shall be accompanied by al1 dociiments likely t o throw light upon it, the Secretary-General sent to the Registry the documents which are enumerated in Section 1 of the list annexed to the present opinion l. A part of these documents reached the Registry on February ~ o t h , 1948, and the remainder on March 20th. The Secretary-General also announced by a letter of February ~ z t h , 1948, that he had designated a representative, authorized to present any written and oral statements which might facilitate the Court's task. Furthermore, the Govemments of the French Republic, of the Federal People's Republic of Yugoslavia, of the Kingdom of Belgium, of the Czechoslovak Repilblic, and of the Republic of Poland announced that they had designated representatives to present oral statements before the Court.

By decision of the Court, the opening of the oral proceedings was postponed from April15th to April zznd, 1948. In the course of public sittings held on April zznd, ~ 3 r d and 24th, the Court heard the oral statements presen ted -on behalf of the Secretary-General of the United Nations, by its representative, Mr. Ivan Kerno, Assistant Secretary-General in charge of the Legal Department ;

l See page 116.

-on behalf of the Government of the French Republic, by its representative, M. Georges Scelle, Professor a t the Faculty of Law of Paris ; - o n behalf of the Government of the Federal People's Republic of Yugoslavia, by its representative, Mr. Milan BartoS, Minister Plenipotentiary ; - o n behalf of the Government of the Kingdom of Belgium, by its representative, M. Georges Kaeckenbeeck, D.C.L., Minister Plenipotentiary, Head of the Division for Peace Conferences and International Organization a t the Ministry for Foreign Affairs, Member of the Permanent Court of Arbitration ; - o n behalf of the Government of the Republic of Czechoslovakia, by its representative, Mr. Vladimir VochoE, Professor of International Law in Charles University a t Prague ; - o n behalf of the Govemment of the Republic of Poland, by its representative, Mr. Manfred Lachs, Professeur agrégé of International Law a t the University of Warsaw. In the course af the hearings, new documents were filed by the representatives accredited to the Court. These documents are enumerated in Section I I of the list annexed to the present opinion 1.

*

* *

Before examining the request for an opinion, the Court considers it necessary to make the following preliminary remarks : The question put to the Court is divided into two parts, of which the second begins with the words "In particular", and is presented as an application of a more general idea implicit in the first. The request for an opinion does not refer to the actual vote. Although the Members are bound to conform to'the requirements of Article 4 in giving their votes, the General Assembly can hardly be supposed to have intended to ask the Court's opinion as to the reasons which, in the mind of a Member, may prompt its vote. Such reasons, which enter into a mental process, are obviously subject to no control. Nor does the request concern a Member's freedom of expressing its opinion. Since it concerns a condition or conditions on which a Member "makes its consent dependent", the question can only relate to the statements made by a Member concerning the vote it proposes to give.

I t is clear from the General Assembly's Resoliition of November 17th, 1947, that the Court is not called upon either to define the meaning and scope of the conditions on which admission is made dependent, or to specify the elements which may serve in a concrete case to verify the existence of the requisite conditions. -- ' See page I I ~ .

The clause of the General Assembly's Resolution, referring t o

stood as an invitation t o the Court t o Say whether the views thus referred to are well founded or otherwise. The abstract form in which the question is stated precludes such an interpretation. The question put is in effect confined to the following point only : are the conditions stated in paragraph I of Article 4 exhaustive in character in the sense that an affirmative reply would lead to the conclusion that z Member is not !rgally entitled to make admission dependent on conditions not expressly provided for in that Article, while a negative reply would, on the contrary, authorize a Member to make admission dependent also on other conditions.

Understood in this light, the question, in its two parts, is and can only be a purely legal one. To determiiie the meaning of a treaty provision-to determine, as in this case, the character (exhaustive or othenvise) of the conditions for admission stated therein-is a problem of inferpretation and consequently a legal question.

I t has nevertheless been contended that the question put must be regarded as a political one and that, for this reason, it falls outside the jurisdiction of the Court. The Court cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision. I t is not concerned with the motives which may have inspired this request, nor with the considerations which, in the concrete cases submitted for examination to the Security Council, formed the subject of the exchange of views which tool; place in that body. I t is the duty of the Court to envisage the question submitted to it only in the abstract form which fias been given to it ; nothing which is said in the present opinion refers, either directly or indirectly, to concrete cases or to particular circumstances. I t has also been contended that the Court should not deal with a question couched in abstract terms. That is a mere affirmation devoid of any justification. According to Article 96 of the Charter and Article 65 of the Statute, the Court may give an advisory opinion on any legal question, abstract or othenvise. Lastly, it has also been maintained that the Court cannot reply to the question put because it involves an interpretation of the Charter. Nowhere is any provision to be found forbidding the Court, "the principal judicial organ of the United Nations", to exercise in regard to Article 4 of the Charter, a multilateral treaty, an interpretative function which falls within the normal exercise of its judicial powers. Accordingly, the Court holds that it is competent, on the basis of Article 96 of the Charter and Article 65 of the Statute, and 8 considers that there are no reasons why it should decline to answer the question put to it. I n framing this answer, i t is necessary first to recall the "conditions" required, under paragraph I of Article 4, of a n applicant for admission. This provision reads as follows : "Membership in the United Nations is open to al1 other peaceloving 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 requisite conditions are five in number: to be admitted to membership in the United Nations, a n applicant must (1) be a State ; (2) be peace-loving ; (3) accept the obligations of the Charter ; (4) be able to carry out these obligations ; and ( 5 ) be willing to do so. Al1 these conditions are subject to the judgment of the Organization. The judgment of the Organization means the judgment of the two organs mentioned in paragraph 2 of Article 4, and, in the last analysis, that of its Members. The question put is concerned with the individual attitude of each Member called upon t o pronounce itself on the question of admission. Having been asked to determine the character, exhaustive or otherwise, of the conditions stated in Article 4, the Court must in the first place consider the text of that Article. The English and French texts of paragraph I of Article 4 have the same meaning, and i t is impossible to find any conflict between them. The text of this paragraph, by the enumeration which i t contains and the choice of its terms, clearly demonstrates the intention of its authors to establish a legal rule which, while i t fixes the conditions of admission, determines also the reasons for which admission may be refused ; for the text does not differentiate between these two cases and any attempt .to restrict it to one of them would be purely arbitrary. The terms "Membership in the United Nations is open to

Membres des Nations unies tous autres États pacifiques", indica t e that States which fulfil the conditions stated have the qualifications requisite for admission. The natural meaning of the words used leads to the conclusion that these conditions constitute an exhaustive enumeration and are not merely stated by way of guidance or example. The provision would lose its significance and weight, if other conditioils, unconnected with those laid down, could be demanded. The conditions stated in paragraph I of Article 4 must therefore be regarded not merely as the necessary conditions, but also as the conditions which sufice.

Nor can it be argued that the conditions enumerated represent only an indispensable minimum, in the sense that political considerations could bc superimposed upon them, and prevcilt the admission of ail applicant which fulfils them. Such a n interpreta- 9 tion would be inconsistent with the terms of paragraph 2 of Article 4, which provide for the admission of "tout Etat remplissant ces conditions"-"any such State". I t would lead to conferring upon Members an indefinite and practically unlimited power of discretion in the imposition of new conditions. Such a power would be inconsistent with the very character of paragraph I of Article 4 which, by reason of the close connexion which i t establishes between membership and the observance of the principles and obligations of the Charter, clearly conçtitutes a legal regulation of the question of the admission of new States. To warrant an interpretation other than that which ensues from the natural meaning of the words, a decisive reason would be required which has not been established. Moreover, the spirit as well as the terms of the paragraph preclude the idea that considerations extraneous to these principles and obligations can prevent the admission of a State which complies with them. If the authors of the Charter had meant t o leave Members free to import into the application of this provision consideratiops extraneous to the conditions laid down therein, they would undoubtedly have adopted a different wording.

The Court considers that the text is sufficiently clear ; consequently, it does not feel that it should deviate from the consistent practice of the Permanent Court of International Justice, according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself. The Court furthermore observes that Rule 60 of the Provisional Rules of Procedure of the Security Council is based on this interpretation. The first paragraph of this Rule reads a s follows : "The Security Council shall decide whether in its judgment the applicant is a peace-loving State and is able and willing to carry out the obligations contained in the Charter, and accordingly whether to recommend the applicant State for membership."

I t does not, however, follow from the exhaustive character of paragraph I of Article 4 that an appreciation is precluded of such circumstances of fact as would enable the existence of the requisite conditions to be verified. Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in t h a t Article. The taking into account of such factors is implied in the very wide and very elastic nature of the prescribed conditions ; no relevant political factorthat is to Say, none connected with the conditions of admission-is excluded.

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

4 But paragraph 2 is concerned only with the procedure $or admission, while the preceding paragraph lays down the substantive law. This procedural character is clearly indicated by the words "will be effected", which, by linking admission to the decision, point clearly to the fact that the paragraph is solely concerned with the manner in which admission is effected, and not witb the subject of the j u d g m e ~ t of the Organization, nor with the nature of the appreciation involved in that judgment, these two questions being dealt with in the preceding paragraph. Moreover, this paragraph, in referring to the "recommendation" of the Security Council and the "decision" of the General Assembly, is designed only to determine the respective functions of these two organs which consist in pronouncing upon the question whether or not the applicant State shall be admitted to membership after having established whether or not the prescribed conditions are fulfilled. The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of its constitution. In this case, the limits of this freedom are fixed by Article 4 and allow for a wide liberty of appreciation. There is therefore no conflict between the functions of the political organs, on the one hand, and the exhaustive character of the prescribed conditions, on the other. It has been sought to base on the political responsibilities assumed by the Security Council, in virtue of Article 24 of the Charter, an argument justifying the necessity for according to the Security Council as well as to the General Assembly complete freedom of appreciation in connexion with the admission of new Members. But Article 24, owing to the very general nature of its terms, cannot, in the absence of any provision, affect the special rules for admission which emerge from Article 4. The foregoing considerations establish the exhaustive character of the conditions prescribed in Article 4.

The second part of the question concerns a demand on the part of a Member making its consent to the admission of an applicant dependent on the admission of other applicants.

Judged on the basis of the rule which the Court adopts in its interpretation of Article 4, such a demand clearly- constitutes a new condition, since it is entirely unconnected with those prescribed in Article 4. It is also in an entirely different category from those copditions, since it makes admission dependent, not on the conditions required of applicants, qualifications which are supposed to be fulfilled, but on an extraneous consideration concerning States other than the applicant State. The provisions of Article 4 necessarily imply that eï ery application for admission should be examined and voted on separately and on its own merits ; othenvise it would be impossible to determine whether a particular applicant fulfils the necessary conditions. To subject an affirmative vote for the admission of an applicant State to the condition that other States be admitted with that State would prevent Members from exercising their judgment in each case with complete liberty, within the scope of the prescribed conditions. Such a demand is incompatible with the letter and spirit of Article 4 of the Charter.

b y nine votes to six,

is of opinion that a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly, on the admission of a State to membership in the United Nations, is not juridically entitled to make its consent t o the admission dependent on conditions not expressly provided by paragraph I of the said Article ;

and that, in particular, a Member of the Organization c a n o t , while it recognizes the conditions set forth in that provision t o be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State.

The present opinion has been drawn up in French and in English, the French text being authoritative.

Done a t the Peace Palace, The Hague, this twenty-eighth day of May, one thousand nine hundred and forty-eight, in two copies, one of which shall be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

( S i g n e d ) J. G. GUERRERO,

President .

( S i g n e d ) E. HAMBRO,

Registrar.

Judges ALVAREZ and AZEVEDO, whilst concurring in the opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the opinion a statement of their individual opinion.

Judges BASDEVANT, WINIARSKI, MCNAIR, READ, ZORICIC and KRYLOV, declarbg that they are unable to concur in the opinion of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the opinion a statement of their dissenting opinion.

( I n i t i a l l e d ) J. G. G.

( I n i t i a l l e d ) E . H .

ANNEX.

LIST OF DOCUMENTS SUBMITTED TO THE COURT

I. Provisional Rules of Procedure of the Security Council (SI961 Rev. 3. January 27th, 1948) l. 2. Rules of Procedure of the General Assembly (A/520. December ~ z t h , 1947) l. 3. Rules governing the admission- of new Members (Report of the Committee of the General Assembly) (A1384, p. 4, September 12th. 1947) l. 3. Report by the Executive Committee to the Preparatory Commission of the United Nations (PCIEXIIIZ~R~V. . . -. I. Novem-

.

ber ~ z t h , 1945) l . 5 . Report of the Preparatory Commission of the United Nations (PC/zo. December 23rd, 1945) l.

6 Records of the Security Council Committee of Experts Meetings concerning the Rules on the Admission of new Members l :

1946. S/Procedure 91. > > gr, Con. I. 1 > 92. > > 93. , 93, Corr. I. > > 94. > > 99. > f 99) Con. 1. 1947. SlC.1/sR.g6. ,, 96, Corr. I. ,, 101. ,> 102. ,, 103. 3, 104-

7 Records of the meetings of the Joint Committees appointed by the General Assembly and the Security Council on Rules governing the admission of new Members a : l These documents arrived a t the Registry on February 10th. 1948. These documents arrived a t the Registry, partly on February 10th. partly on blarch zoth, 1948.

ARTICLE 4 O F THE CHARTER OF THE UNITED NATIONS 117 A/AC.II/SR.I. ,, SR.1, Corr. I. ,, SR.2. ,, SR.2, Rev. I. ,, SR.3. ,, SR.3, Rev. I. ,, SR.4. ,, 5 x 5 . ,, SR.6. ,, SR.7. ,, SR.8. ,, SR.8, Corr. 9 , SR.9. ,, SR.10. ,, sR.11.

8 Report of the Security Council Committee on the admission of new Members, 1946 (Security Council Oficial Records, First Year, Second Series, Supplement No. 4, p. 53) l .

9 Report of the Security Council to the General Assembly on the admission of new Members, 1946 (A11o8. October 15th, 1946) l. IO. Records of the Security Council Meetings concerning the admission of new Members, 1946. Security Council O@cial Records, First Year, Second Series :

No. 1. > > 2.

,, 3. ,, 4.

2 5. ,, 18. 2 , 23. ,, 24. ,, 25. Security Council Journal, First year, No. 35.

II. Records of the First Committee Meetings of the Second Part of the First Session of the General Assembly concerning the admission of new Members, 1946 : Journal 22, Suppl. No. 1-AlC.1/22. ,, 24, 9 , ,, 1-A/C.I/~I. ,, 25, ,, ,, 1-AIc.1137. ,, 26, ,, ,, 3-AlC.3143. 27, ,, ,, 1-AlC.1139. ,, 28, ,, ,, 1-Alc.1141. 29, ,, A-AlP.V.47. 2 319 ,, ,, 1-AIc.1145. 9 32, ,, -A/c.1/47. ,, 37, ,, A-AlP.V.48. ,, 38, ,, A-AIP.V.49.

These documents arrived a t the Registry on February 10th. 1948. These documents arrived a t the Registry, partly on February 10th. partly on March 20th. 1948.

12 Records of the Plenary Meetings of the Second Parc of the First Session of the General Assembly concerning the admission of new Members, 1946 l. (Journal No. 66, Supplement A-A1P.V. 67.)

13 Report of the Security Council Committee on the admission of new Members, 1947. Security Council Oficial Records, Second Year, Special Supplement No. 3, Lake Success, New York, 1947 l.

14 Reports of the Security Council t o the General Assembly on the admission of new Members, 1947 (Al406 October gth, 1947.- A/grg. November sznd, 1947) l.

15 Records of the Security Council Meetings concerning the admission of new Members, 1947. Security Council Oficial Records, Second Year, No. 38 :

16 Records of the First Committee Meetings of the Second Regular Session of the General Assembly concerning the admission of new Members, 1947 : A/C.I/SR. 59. ,, 59, Corn. 1. ,, 59, c o n . 2. ,, 97. ,, 98. 99. ,, 100. ,, 101. ,, 102. ,, 102, Con. 1. ,, 102, Corr. 2. ,, 103-

17 Records of the meetings of the Second Regular Session of the General Assembly concerning the admission of new Members, 1947 AlP.V.83. AIP.V.89. , Y 84. ,, 90. ,, 85. ,> 92. ,, 86. ,, 96. ,, 87. ,, 117. ,, 88. ,, 118.

' These documents arrived a t the Registry on February ~ o t l i , 1948. "These documents arrived a t the Iiegistry, partly on February rotli, pnrtly o n March noth, 1948.

ARTICLE 4 OF THE CHARTER O F THE U N I T E D NATIONS I I 9

11.-DOCUMENTS REFERRED TO DURING THE ORAL PROCEEDINGS.

A.-List of annexes mentioned in the statement by MY. Kerno, Assistant Secrgtary- General of the United Nations : Annex I. First Committee. Verbatim record of the 98th Meeting (Nov. 7th, 1947). Statement by the representative of Belgium (PP. 72-81). Annex 2. Ibidem. 99th Meeting (Nov. 7th, 1947). Statement by the representative of Poland (pp. 41, 42). Ann,ex 3. Ibidem. Remarks by the representative of Australia (PP. 747 93). Annex 4. Ibidem. Remarks by the representative of the U.S.S.R. ( p p 242-250, 251). Annex 5. Ibidem. 100th Meeting (Nov. 8th, 1947). Remarks by the representative of India (pp. 52-53). Annex 6. Ibidem. Remarks by the representative of Argentina (p. 161). Annex 7. Ibidem. Remarks by the representative of China ( P P 14-20). Annex 8. Ibidem. I O I S ~ Meeting (Nov. 8th, 1947). Remarks by the representative of the United Kingdom (pp. 103, 104-110). Annex g. Ibidem. ~ o z n d Meeting (Nov. ~ o t h , 1947). Remarks by the representative of Greece (p. 6). Annex IO. Ibidem. 103rd Meeting (Nov. ~ o t h , 1947). Remarks by the representative of El Salvador (p. 41). Annex II. Facts relating to the admission of new Members provided by documents of the United Nations Conference on International Organization (U.N.C.I.O.). Annex 12. Admission of new Members.

B.-List of annexes mentioned in the statement by M . Kaeckenbeeck, representatioe of the Belgian Government : Extract from the book by Dr. Dietrich Schindler, Die Schiedsgerichtbarkeit seit 1914 (Enkuicklang uxd hezrtzger Stand). Extract from the book by H. Lauterpachi, The Function of Law irb the Internafional Community. United Nations. General Assembly. Doc. A1474 (Noi. 13th, 1947). Idem. Doc. Alp.v.113 (Nov. 14th, 1947). Idem. Doc. A1459 (Nov. th, 1947). Idem. Doc. A/459, Corr. I (Nov. 13th, 1947).