by Peter D. Maynard*
It has been said that if the United Nations did not exist, it would have to be created. This is so because the United Nations serves a vital and unique role in maintaining international peace and security, upholding the peaceful settlement of disputes, achieving economic, social, cultural and humanitarian development, and promoting justice and international law as the language of international relations.
Similarly, it has been said that all States are indeed Members of the United Nations. Those that have been admitted to the Organization are active Members, while the other States are passive Members. It is auspicious, on the fiftieth anniversary of the United Nations, that Kelsen made this suggestion some 50 years ago.[1]
Today it is virtually axiomatic that the United Nations ought to be universal in the sense of including all States. In the recent past, universality of the United Nations emerged as an issue in two contexts: in the contexts of, firstly, the emergence of small States and the proposals made in 1969 and 1970 of a form of associate membership without the right to vote; and secondly, the dissolution and division of other States.
I shall focus primarily on the first context, but shall return briefly to the second context. I shall also comment on conditions of admission and draw some conclusions. This brief and perhaps oversimplified presentation is set out in details in a 30-page article which is available upon request, courtesy of the Mission of the Bahamas.
THE QUESTION OF MINI-STATES
Not long after the admission of the Gambia (pop. 300,000) and Maldives (pop. 90,000) to the United Nations in 1965, the then Secretary-General U Thant drew attention to the issue of mini-States in the introduction to his annual report. He raised the question again in 1967 and 1968. In his view, the United Nations was faced with a serious problem of increasing membership and “the line has to be drawn somewhere”.[2]
This assessment reflected the fears that the United Nations, with some 130 Members in the early 1970s, would be swamped by almost 200 Members by the 1990s, that the voting power of certain States would be diminished and that their international power in general would be reduced. In 1969, three proposals were made to restrict the membership of very small States, and they were placed before a committee of experts of the Security Council.
The French proposal suggested that the Security Council reactivate the Security Council Committee on the Admission of New Members. That Committee had been established under rule 59 of the provisional rules of procedure of the Security Council (S/96/Rev.6), but had long become inactive.
The United States proposed that there be established the status of United Nations associate member. The United Kingdom of Great Britain and Northern Ireland made a proposal in 1970 of an arrangement whereby small States would voluntarily renounce the right of voting and election in United Nations bodies and sign such a declaration upon application for admission.
After some eight meetings of the Committee, the opinion of the Legal Counsel effectively took the wind out of their sails by finding that associate membership was ultra vires and contrary to the Charter of the United Nations and would require a Charter amendment.
It was arbitrary then to differentiate among States on the criterion of size. Now, particularly with the benefit of 25 years’ hindsight, it is quite evident that the presentation of the question was misconceived, misleading and unbalanced.
The fears have manifestly not withstood the test of time. None of those dire consequences has occurred on the voting, decision-making and functioning of the Organization. Any adverse impact was not attributable to small States. Quite on the contrary, their impact has been quite positive. Where such problems have arisen, there is no evidence that they have occurred as a result of the admission of more small States.
DISSOLUTION OR DIVISION OF OTHER STATES
In the 1990s, there have been notable instances of representation of separate States by one Member of the United Nations after a political merger or by consent. For example, on 22 May 1990, Yemen and Democratic Yemen merged to form the Republic of Yemen and have been represented as one Member. Also, on 3 October 1990, the German Democratic Republic and the Federal Republic of Germany formed a single State under the name, Federal Republic of Germany.
On 24 December, 1991, the President of the Russian Federation informed the Secretary-General that the membership of the Union of Soviet Socialist Republics would be continued by the Russian Federation with the support of the 11 member countries of the Commonwealth of Independent States.
Thus, separation or division of States has also been in evidence, and appears to have contributed to the increase in membership as much as or more than continuing applications for admission by small States.
In the 1990s, some 28 new Members have been admitted, including Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Croatia, the Czech Republic, the Democratic People’s Republic of Korea, Eritrea, Estonia, Georgia, Kazakstan, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, the Marshall Islands, Micronesia, Monaco, Namibia, the Republic of Korea, the Republic of Moldova, San Marino, Slovakia, Slovenia, Tajikistan, the former Yugoslav Republic of Macedonia, Turkmenistan and Uzbekistan.[3]
On 10 December 1992, the Permanent Representative of Czechoslovakia, an original Member of the United Nations, informed the Secretary-General that the Czech and Slovak Federal Republic would cease to exist on 31 December 1992 and that the Czech Republic and the Slovak Republic as separate successor States would apply for membership in the United Nations. They were admitted on 19 January 1993.
Also, the secession from Yugoslavia of Croatia, Bosnia and Herzegovina and Slovenia confronted the United Nations again with the problem it faced in the India-Pakistan situation in 1947. Accordingly, in May 1992, Yugoslavia retained its seat, while the other States were admitted to separate seats.[4] The General Assembly, moreover, decided on 8 April 1993 to admit to membership in the United Nations the State provisionally referred to as “the former Yugoslav Republic of Macedonia” (resolution 47/225).
It should also be recalled, in the context of the applications for admission to the United Nations, that the General Assembly, by resolution 2758 (XXVI) of 25 October 1971, decided “to restore all its rights to the People’s Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representative of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it”.
CONDITIONS OF ADMISSION
During its first decade, the United Nations was not universal,[5] and the basis of admission of new States was highly ideological. In this period, it was also claimed that the admission of certain new States would weaken the United Nations and reduce its effectiveness. The criteria of political acceptability, that is, “love and peace” and “willingness to carry out Charter obligations”, were used by both the Western and socialist blocs to justify their opposition to admission of candidates belonging to the rival bloc.[6]
In 1948, the International Court of Justice was requested to issue guidelines on the admission of new Members, and to rule whether membership trade-offs or “package deals” were permitted. On 28 May 1948, the Court, in its Advisory Opinion on the Conditions of Admission of a State to Membership in the United Nations,[7] declared that the criteria in Article 4 of the Charter were exhaustive (see the discussion of Article 4 below). There are only five criteria that must be satisfied for membership which are found in Article 4, paragraph 1, namely, that an applicant must be: (a) a State, (b) peace-loving, (c) willing to accept the obligations of the Charter, (d) willing to carry out these obligations and (e) able to carry out these obligations.
In 1955, with the admission of 16 new Members, the political solution based on the general admission of all applying States[8] permitted the United Nations to move away from restricted membership. Later, both super-Powers avidly supported decolonization and developed the practice of approving quite automatically the subsequent membership of bona fide new States. So, since 1955, the procedure of voting for new Members has by and large been a matter of formality.
Universality of membership is a logical consequence of the principle of sovereign equality[9] of States. The principle of universality is implicit in the Charter’s provisions.
For example, Article 2, paragraph 6, of the Charter is a conscious departure from the traditional legal principle according to which treaties establish rights and duties only for the contracting parties. The article promotes the idea of an indivisible peace, which the United Nations is obliged to protect, even when the aggressors are not Members of the United Nations.
It would be unfair, inequitable and illogical if some States are given obligations, while, at the same time, it is made impossible for them to join the Organization.[10] If this were the case, the Organization would be a closed group of States claiming the right to impose obligations on non-Member States. One critic claims that this “cannot have been a dn was not the intention of the framers of the Charter”,[11] because it contradicts the principle of equality of all States, a fundamental principle of international law.
Other features of the United Nations system are associated with universality of membership: the importance of recruiting the staff of the United Nations Secretariat on “as wide a geographical distribution” as one of the criteria for elections, including the election on non-permanent members of the Security Council (Article 23, paragraph 1); the presence of the main forms of civilization in the composition of the International Court of Justice (Article 9 of the Statute of the Court); the desirability of including the highest possible number of participating States in conferences codifying international law; and the immense importance for all States of issues such as nuclear-free zones and other issues facing the international community in the twenty-first century.
All these are reasons why the peoples of, say, Oceania and the Caribbean, though small in size, should be represented as members in the General Assembly.[12]
In its Advisory Opinion of 3 March 1950,[13] the International Court of Justice gave its opinion on the question of whether the General Assembly could admit a State on the basis of its decision, even when the Security Council failed to approved admission by a majority or by a veto of a permanent member. The Court ruled that, in all cases, the Security Council recommendation takes priority over the General Assembly decision.
This was the Court’s interpretation of Article 4, paragraph 2, of the Charter. Accordingly, in order of priority, the Security Council must first make a recommendation, and then the General Assembly make a decision on the admission of a new Merchant.
Universality is also part and parcel and the membership and work of the specialized agencies established under Article 57 of the Charter. For example, article I, paragraph 1, of the Constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO) speaks of collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for human rights and fundamental freedoms. “Indeed, only universality can enable UNESCO to fulfill its aims and purpose for the benefit of humanity as a whole.”[14]
CONCLUSION
In the early 1970s, perceptions were based on a number of false assumptions. First of all, it was assumed that mini-States would significantly alter the “balance” of voting power within the General Assembly. But projections of voting patterns were highly conjectural, and statistical surveys on the matter were, at best, inconclusive.
Second, international organization was seen as a field separate and distinct from the workings of international politics as a whole. Proposals were made within the United Nations to change the conditions of admission, without making any connection with international relations underlying and outside the United Nations context. Hence, certain important problem-solving vehicles were usually left entirely out of the scope of analysis.
Interdependence among States and also bilateral or multilateral arrangements give rise to networking and supplemental or alternative relationships on many levels. International politics were and are deeply and intimately involved in the workings of the United Nations. Contrary to common belief at the time, no automatic or voluntary procedure, such as the renunciation of full membership, was a panacea to solve or prevent the ills of the United Nations.
Third, by being universal, the United Nations is better equipped to meet the challenges of the twenty-first century. This is clear in a number of fields.
For example, as small island States have jurisdiction over vast areas of ocean space, their participation is important to the law of the sea. Neither Tonga, Kiribati, Tuvalu nor Nauru had decided to become a Member of the United Nations. Their populations are small, but they cover significant areas of ocean space. Kiribati, for example, has a surface of 726 square kilometres, while its exclusive economic zone covers an area of 3.5 million square kilometres.
Similarly, as far as the global ecosystem and environmental issues in general are concerned, many small States play a critical role: to save the planet’s biological diversity, to use its sustainable assets, to share fairly and equitably the benefits arising from their utilization.[15] Universality is an essential and integral ingredient of the effective role of the United Nations in the emergence of a world of sustainable development. Its role is also important in the context of the World Summit for Social Development, held in Denmark.
Security is no exception. In the post-cold war world, international relations are no longer bipolar. Security is coming to be seen more in terms of the international community and less in terms of individual States. This is illustrated by measures taken by the Security Council concerning weapons monitoring and destruction in Iraq, humanitarian relief in Somalia, and efforts to stop ethnic conflicts in the former Yugoslavia.
Even in the area of peace-keeping, which is long established but increasingly important, small States have served with distinction. Fiji and older small States have assisted in peace-keeping in the past. The success of regional efforts such as the Caribbean Community (CARICOM) multinational peace-keeping force in Haiti suggests that small States will become even more involved in peace-keeping at the United Nations level. These are all major issues in the twenty-first century.
Despite its shortcomings, the United Nations remains the only available mechanism to mobilize the widest possible support called for in our era of constructive multilateral engagement. Hence, the principle of universality of membership has evolved and been strengthened. It appears to be a given that all States that satisfy the criteria of the Charter may join the United Nations. Their participation is needed to meet the challenges of the twenty-first century.
[1]H. Kelson, “Membership in the United Nations”, Columbia Law Review, vol. 4 (1949), p. 410.
[2]Official Records of the General Assembly, Twenty-second Session, Supplement No 1A (A/6701/Add. 1), para. 162.
[3]The dissolution of the USSR and the formation of the Commonwealth of Independent States were related to seven new admissions, as well as Azerbaijan, the Republic of Moldova and the three Baltic States (Estonia, Latvia and Lithuania). Apart from those 12 Members, the former Yugoslavia and the former Czechoslovakia were the sources of four and two new Members, respectively. In addition, the two Koreas, Namibia, Eritrea, four small European States (Andorra, Liechtenstein, Monaco and San Marino) and two small Pacific States (the Marshall Islands and Micronesia) were admitted.
[4]See Y.Z. Blum, “UN membership of the ‘new’ Yugolavia: continuity or break?”, American Journal of International Law, vol. 86 (1992), p. 830. Also, see response and counter-response, ibid., vol. 87 (1993), p.240.
[5]Schwarzenberger makes the distinction between relative and absolute universality, and argues that the United Nations was not obliged to attain absolute universality. Relative universality involves the membership of all “key” States whose aloofness would endanger the achievement of common objectives. G. Schwarzenberger, Power Politics: A Study of World Society, 3rd ed., Stevens & Sons Ltd., London (1964). Also, L. Gross, “Progress towards universality of membership of the UN”, American Journal of International Law, vol. 50 (1956). But see P. Bierzanek, “The principle of universality and its implementation in the United Nations Organization”, German Foreign Policy, vol. IX (1970), No. 5.
[6]See, for example, Minutes of the Security Council, Year 1, Series 2, p. 4.
[7]I.C.J. Reports, 28 May 1948.
[8]These admissions embodied much of the “package deal” earlier denied by the International Court of Justice
[9]On the subject of sovereign equality, see, for example, P. H. Kooijmers, The Doctrine of the Legal Equality of States (A. W. Sijthoff, Leyden, 1964).
[10]Bierzanek, op.cit
[11]Ibid
[12]An important deviation from universality was the absence of the divided States, such as the two Koreas, which were admitted on 17 September 1991.
[13]I.C.J. Reports, 3 March 1950.
[14]H. Gros Espiell, The Principle of Universality and the Specialized Agencies of the United Nations (UNESCO, Pris, 1991). Also, P.A. Hoffer, “Upheaval in the United Nations system: United States withdrawal from UNESCO”, Journal of International Law, vol. 12 (1986), p. 161.
[15]See the speeches of the Secretary-General and the Executive Director of the United Nations Environment Programme at the first meeting of the Conference of the Parties to the Convention on Biological Diversity, held at Nassau, Bahamas, on 28 November 1994. These issues were thoroughly canvassed at the Global Conference on the Sustainable Development of Small Island Developing States, Bridgetown, Barbados, 25 April-6 May 1995. See also Peter R. Baehr, The United Nations in the 1990s, 2nd ed. (St. Martin’s Press, New York, 1994), and Keck Center for International and Strategic Studies, The United Nations in a New World Order (Claremont McKenna College, Claremont, CA, 1994).
