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[P.57]
THE COURT,
composed as above,
gives the following advisory opinion :
On November 17th, 1947, the General Assembly of the United Nations adopted
the following Resolution :
"The 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,
Considering Article 96 of the Charter,
Requests the International Court of Justice to give an advisory opinion on
the following question :
Is 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, juridically entitled to make its consent
to the admission 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 ?
Instructs the Secretary General to place at the disposal of the Court the
records of the above mentioned meetings of the Security Council."
By a note dated November 24th, 1947, and filed in the Registry on November
29th, the Secretary General of the United Nations transmitted to the
Registrar a copy of the Resolution of the General Assembly. In a telegram
sent on December 10th, the Secretary General informed the Registrar that the
note of November 24th was to be regarded as the official notification and
that certified true copies of the Resolution had been despatched. These
copies reached the Registry on December 12th, and the question was then
entered in the General List under No. 3.
The same day, the Registrar gave notice of the request for an opinion to all
States entitled to appear before the Court, in accordance with paragraph I
of Article 66 of the Statute. Furthermore, [p59] as the question put
mentioned Article 4 of the Charter, the Registrar informed the Governments
of Members of the United Nations, 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 9th, 1948, the date fixed by an Order made on December 12th, 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
communicated to all Members of the United Nations, who were informed that
the President had fixed April 15th, 1948, as the opening date of the oral
proceedings. A statement from the Government of Siam, dated January 30th,
1948, which was received in the Registry on February 14th, i.e., after the
expiration of the time limit, was accepted 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 at 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 all documents likely to
throw light upon it, the Secretary General sent to the Registry the
documents which are enumerated in Section I of the list annexed to the
present opinion FN1. A part of these documents reached the Registry on
February 10th, 1948, and the remainder on March 20th. The Secretary General
also announced by a letter of February 12th, 1948, that he had designated a
representative, authorized to present any written and oral statements which
might facilitate the Court's task.
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FN1 See page 116
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Furthermore, the Governments of the French Republic, of the Federal People's
Republic of Yugoslavia, of the Kingdom of Belgium, of the Czechoslovak
Republic, 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 April 15th to April 22nd, 1948. In the course of public sittings held
on April 22nd, 23rd and 24th, the Court heard the oral statements presented
—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; [p60]
—on behalf of the Government of the French Republic, by its representative,
M. Georges Scelle, Professor at the Faculty of Law of Paris ;
—on behalf of the Government of the Federal People's Republic of Yugoslavia,
by its representative, Mr. Milan Bartoš, Minister Plenipotentiary ;
—on 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 at
the Ministry for Foreign Affairs, Member of the Permanent Court of
Arbitration ;
—on behalf of the Government of the Republic of Czechoslovakia, by its
representative, Mr. Vladimir Vochoč, Professor of International Law in
Charles University at Prague ;
—on behalf of the Government of the Republic of Poland, by its
representative, Mr. Manfred Lachs, Professeur agrégé of International Law
at the University of Warsaw.
In the course of the hearings, new documents were filed by the
representatives accredited to the Court. These documents are enumerated in
Section II of the list annexed to the present opinion FN1.
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FN1 See page 119
---------------------------------------------------------------------------------------------------------------------
***
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.
It is clear from the General Assembly's Resolution 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. [p61]
The clause of the General Assembly's Resolution, referring to "the exchange
of views which has taken place....", is not understood as an invitation to
the Court to 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 a
Member is not legally 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 determine the meaning of a treaty provision—to
determine, as in this case, the character (exhaustive or otherwise) of the
conditions for admission stated therein—is a problem of interpretation and
consequently a legal question.
It 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. It 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
took place in that body. It is the duty of the Court to envisage the
question submitted to it only in the abstract form which has been given to
it; nothing which is said in the present opinion refers, either directly or
indirectly, to concrete cases or to particular circumstances.
It 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 otherwise.
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 [p62] considers that
there are no reasons why it should decline to answer the question put to it.
56tr65
In framing this answer, it is necessary first to recall the "conditions"
required, under paragraph I of Article 4, of an applicant for admission.
This provision reads as follows:
"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 requisite conditions are five in number: to be admitted to membership in
the United Nations, an 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.
All 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 to 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 it is impossible to find any
conflict between them. The text of this paragraph, by the enumeration which
it contains and the choice of its terms, clearly demonstrates the intention
of its authors to establish a legal rule which, while it 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 all other peace
loving States which...." and "Peuvent devenir Membres des Nations unies tous
autres États pacifiques", indicate 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
conditions, 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
suffice.
Nor can it be argued that the conditions enumerated represent only an
indispensable minimum, in the sense that political considerations could be
superimposed upon them, and prevent the admission of an applicant which
fulfils them. Such an interpretation [p63] would be inconsistent with the
terms of paragraph 2 of Article 4, which provide for the admission of "tout
État rem-plissant ces conditions"—"any such State". It 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 it establishes between membership and
the observance of the principles and obligations of the Charter, clearly
constitutes 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 to leave Members free to import into the application
of this provision considerations 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 6o of the Provisional Rules of
Procedure of the Security Council is based on this interpretation. The first
paragraph of this Rule reads as 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."
It 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 that 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 factor— that is to say, none connected with the
conditions of admission—is excluded. [p64]
It 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 for 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 with the subject of the judgment 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. [p65]
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 pre-scribed in Article 4. It is also in
an entirely different category from those conditions, 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 every application for
admission should be examined and voted on separately and on its own merits;
otherwise 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.
FOR THESE REASONS,
THE COURT,
by 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 to the admission dependent on conditions not expressly
provided by paragraph I of the said Article ;
and that, in particular, a Member of the Organization cannot, 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.
The present opinion has been drawn up in French and in English, the French
text being authoritative. [p66]
Done at 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.
(Signed)J. G. GUERRERO,
President.
(Signed) 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, ZORIČIČ and KRYLOV, declaring
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.
(Initialled) J. G. G.
(Initialled) E. H. [p67]
INDIVIDUAL OPINION BY M. ALVAREZ.
[Translation.]
I.
I do not agree with the method adopted by the Court in giving the opinion
for which it has been asked by the General Assembly of the United Nations.
The Court has inferred from the enumeration of the conditions prescribed in
Article 4, paragraph I, of the Charter for the admission of a State to
membership in the United Nations, that nothing else can be adduced to
justify a negative vote. This question cannot be answered merely by a
clarification of the texts, nor by a study of the preparatory work ; another
method must be adopted and, in particular, recourse must be had to the great
principles of the new international law.
More changes have taken place in international life since the last great
social cataclysm than would normally occur in a century. Moreover, this life
is evolving at a vertiginous speed: inter State relations are becoming more
and more various and complex. The fundamental principles of international
law are passing through a serious crisis, and this necessitates its
reconstruction. A new international law is developing, which embodies not
only this reconstruction, but also some entirely new elements.
For a long time past I have insisted on the role which the Court must play
in the renewal and development of international law. A recent event supports
my opinion. The General Assembly of the United Nations in its Resolution No.
171 of November 14th, 1947, declares that it is of paramount importance, in
the first place, that the interpretation of the Charter should be based on
recognized principles of international law and, in the second place, that
the Court should be utilized, to the greatest practicable extent, in the
progressive development of this law, both in regard to legal issues between
States and in regard to constitutional interpretation or to questions of a
general nature submitted to it for its opinion.
I hold that in this connexion the Court has a free hand to allow scope to
the new spirit which is evolving in contact with the new conditions of
international life: there must be a renewal of inter-national law
corresponding to the renewal of this life.
With regard to the interpretation of legal texts, it is to be observed that,
while in some cases preparatory work plays an important part, as a rule this
is not the case. The reason lies in the fact that delegates, in discussing a
subject, express the most varied views on certain matters and often without
a sufficient knowledge of them; [p68] sometimes also they change their views
without expressly saying so. The preparatory work on the constitution of the
United Nations Organization is of but little value. Moreover, the fact
should be stressed that an institution, once established, acquires a life of
its own, independent of the elements which have given birth to it, and it
must develop, not in accordance with the views of those who created it, but
in accordance with the requirements of international life.
II.
As the question put to the Court concerns the admission of new States to the
United Nations Organization, the character of the international community
and the place in it occupied by the Organization must be borne in mind.
As a result of the increasingly closer relations between States, which has
led to their ever greater interdependence, the old community of nations has
been transformed into a veritable interna-tional society, though it has
neither an executive power, nor a legislative power, nor yet a judicial
power, which are the characteristics of a national society, but not of
international society. This society comprises all States throughout the
world, without there being any need for consent on their part or on that of
other States; it has aims and interests of its own; States no longer have an
absolute sovereignty but are interdependent ; they have not only rights,
but also duties towards each other and towards this society ; finally, the
latter is organized and governed, to an ever increasing extent, by a law of
a character quite different from that of customary law.
The foregoing indicates the place occupied by the United Nations
Organization in the universal international society. The creation of the
League of Nations constituted a great effort to organize this society,
particularly from the standpoint of the maintenance of peace. The present
United Nations Organization, which is destined to replace it and has the
same aims, is therefore merely an institution within the universal
international society.
The aims of this Organization are not confined to certain States or to a
great number of States, but are of a world wide nature. They are concerned
with the maintenance of peace and the development of co operation among all
States of the world; it will suffice to read the Preamble and Chapter I of
the Charter to appreciate this.
But to become a Member of this Organization, a State must apply for
admission, must fulfil certain conditions and must be admitted by the
Organization. States which are not yet Members of the Organization have not
the rights and duties which it has laid down, but they have these conferred
or imposed upon them as members of the universal society of nations.
Moreover, such [p69] States may enter into relations of every kind with
those which belong to the United Nations Organization, and these relations
are governed by international law.
III.
Before giving the opinion asked of it by the General Assembly of the United
Nations, the Court has had to make up its mind as to the legal or political
character of the question put.
The traditional distinction between what is legal and what is political, and
between law and politics, has to day been profoundly modified. Formerly,
everything dependent on precepts of law was regarded as legal and anything
left to the free will of States was regarded as political.
Relations between States have become multiple and complex. As a result, they
present a variety of aspects: legal, political, economic, social, etc.;
there are, therefore, no more strictly legal issues. Moreover, many
questions regarded as essentially legal, such as the interpretation of a
treaty, may, in certain cases, assume a political character, especially in
the case of a peace treaty. Again, many questions have both a legal and a
political character, notably those relating to international organization.
A new conception of law in general, and particularly of international law,
has also emerged. The traditionally juridical and individualistic conception
of law is being progressively superseded by the following conception: in the
first place, international law is not strictly juridical; it is also
political, economic, social and psychological; hence, all the fundamental
elements of traditional individualistic law are profoundly modified, a fact
which necessitates their reconstruction. In the next place, strictly
individualistic international law is being more and more superseded by what
may be termed the law of social interdependence. The latter is the outcome,
not of theory, but of the realities of international life and of the
juridical conscience of the nations. The Court is the most authoritative
organ for the expression of this juridical conscience, which also finds
expression in certain treaties, in the most recent national legislative
measures and in certain resolutions of associations devoted to the study of
international law.
This law of social interdependence has certain characteristics of which the
following are the most essential:
(a) it is concerned not only with the delimitation of the rights of States,
but also with harmonizing them;
(b) in every question it takes into account all its various aspects ;
(c) it takes the general interest fully into account;
(d) it emphasizes the notion of the duties of States, not only towards each
other but also towards the international society;
(e) it condemns the abuse of right ;
(f) it adjusts itself to the [p70] necessities of international life and
evolves together with it; accordingly, it is in harmony with policy;
(g) to the rights conferred by strictly juridical law it adds that which
States possess to belong to the international organization which is being
set up.
Far therefore from being in opposition to each other, law and policy are to
day closely linked together. The latter is not always the selfish and
arbitrary policy of States; there is also a collective or individual policy
inspired by the general interest. This policy now exercises a profound
influence on international law; it either confirms it or endows it with new
life, or even opposes it if it appears out of date. It is also one of the
elements governing the relations between States when no legal precepts
exist.
It is however always necessary to differentiate between juridical and
political elements, particularly from the standpoint of the Court's
jurisdiction.
The United Nations Charter makes the Court one of its organs (Art. 7), and
Article 92 lays down that it is its principal judicial organ. The Statute of
the present Court, like that of the old, indicates that its task is to hear
and determine legal questions, and not political questions. The advisory
opinions for which it may be asked must also relate to legal questions
(Articles 36, No. 3, and 96 of the Charter; Article 65 of the Statute of the
Court).
When a question is referred to the Court, the latter therefore must decide
whether its dominant element is legal, and whether it should accordingly
deal with it, or whether the political element is dominant and, in that
case, it must declare that it has no jurisdiction.
In the questions which it is called upon to consider, the Court must,
however, take into account all aspects of the matter, including the
political aspect when it is closely bound up with the legal aspect. It would
be a manifest mistake to seek to limit the Court to consideration of
questions solely from their legal aspect, to the exclusion of other aspects;
it would be inconsistent with the realities of international life.
It follows from the foregoing that the constitutional Charter cannot be
interpreted according to a strictly legal criterion; another and broader
criterion must be employed and room left, if need be, for political
considerations.
The Court has decided that the question on which its advisory opinion has
been asked is a legal one because it concerns the interpretation of the
Charter of the United Nations, which is a treaty.
In reality, this question is both legal and political, but the legal element
predominates, not so much because it is a matter of interpreting the Charter
but because it is concerned with the problem whether States have a right to
membership in the [p71] United Nations Organization if they fulfil the
conditions required by the Statute of the Organization. The question is at
the same time a political one, because it is the States comprising the
Security Council and those belonging to the General Assembly which determine
whether these conditions are, or are not, fulfilled by the applicant.
IV.
As regards the essential conditions to be fulfilled by every State desiring
to be admitted to membership in the United Nations Organization, these are
prescribed in Article 4, paragraph I, of the Charter. These conditions are
exhaustive because they are the only ones enumerated. If it had been
intended to require others, this would have been expressly stated.
Moreover, having regard to the nature of the universal international
society, the purposes of the United Nations Organization and its mission of
universality, it must be held that all States fulfilling the conditions
required by Article 4 of the Charter have a right to membership in that
Organization. The exercise of this right cannot be blocked by the imposition
of other conditions not expressly provided for by the Charter, by
international law or by a convention, or on grounds of a political nature.
Nevertheless, it has to be judged in each case whether the conditions of
admission required by the Charter are fulfilled. The units which may form
this judgment are the States composing the Security Council and the members
of the General Assembly. They must be guided solely by considerations of
justice and good faith, i.e., they must confine themselves to considering
whether the applicant fulfils the conditions required by Article 4,
paragraph I. In actual fact, however, these States are mainly guided by
considerations of their own policy and, consequently, if not directly, at
all events indirectly, they sometimes require of an applicant conditions
other than those provided for in Article 4, since they vote against its
admission if such other conditions are not fulfilled. That is an abuse of
right which the Court must condemn; but at the present time no sanction
attaches to it save the reprobation of public opinion.
Nevertheless, cases may arise in which the admission of a State is liable to
disturb the international situation, or at all events the international
organization, for instance, if such admission would give a very great
influence to certain groups of States, or produce profound divergencies
between them. Consequently, even if the conditions of admission are
fulfilled by an applicant, admission may be refused. In such cases, the
question is no longer a legal one; it becomes a political one and must be
regarded as such. In a concrete case of this kind, the Court must declare
that it has no jurisdiction. [p72]
A claim by a Member of the United Nations Organization, which recognizes the
conditions of Article 4 of the Charter to be fulfilled by an applicant
State, to subject its affirmative vote to the condition that other States
be admitted to membership together with this applicant, would be an act
contrary to the letter and spirit of the Charter. Nevertheless, such a claim
may be justified in exceptional circumstances, for instance, in the case of
applications for admission by two or more States simultaneously brought
into existence as the result of the disappearance of the State or colony of
which they formed part. It is natural in that case that their admission
should be considered simultaneously.
V.
Having regard to the foregoing, I consider that the following replies should
be given to the actual questions put in the request for an advisory opinion
addressed to the Court :
1° No State is juridically entitled to make its consent to the admission of
a new Member to the United Nations Organization dependent on conditions not
expressly provided for by Article 4, paragraph I, of the Charter.
2° A State may not, while recognizing the conditions required by Article 4,
paragraph I, of the Charter, to be fulfilled by the applicant State, subject
its affirmative vote to the condition that other States be admitted to
membership in the United Nations together with that State. Nevertheless, in
exceptional cases, such a claim may be justified.
To the above conclusions the following, which ensues from them, should be
added:
If there are several simultaneous applications for admission, each must be
considered separately, save in exceptional circumstances: there is no ground
for establishing a connexion between them not contemplated by the Charter.
The foregoing statement clearly demonstrates the importance of the new
method indicated above, and of the role which the Court is called upon to
play in the development of international life and of international law. In
consequence of Resolution 171 of November 14th, 1947, adopted by the
General Assembly of the United Nations, this method and this role emerge
from the domain of doctrine and become applicable in practice.
(Signed)
ALVAREZ. [p73]
INDIVIDUAL OPINION BY M. AZEVEDO.
[Translation.]
1.—I agree with the findings of the Court, and the purpose of the following
remarks is merely to explain certain reasons which I should like to add to
the opinion.
I would begin by referring to my previous view, that I am convinced that a
radical change was made by the Charter in the matter of advisory opinions. I
also have in mind the revision of Article 82 and the abolition of Article 83
of the Rules of Court, to prevent any request disguised as an opinion.
If the function of advisor given to a Court of Justice offends certain deep
rooted convictions, there is something even stranger in my view; it is the
tertium genus which has always impeded the clear application of the rule
laid down in Article 14 of the 1919 Covenant, as may be seen by reading the
commentaries of those who studied the problem (Bassett Moore, Hudson, De
Visscher, Negulesco, Tenekides, Dauvergne, Beuve Mery, Rem linger, etc.).
The expressions "any dispute or any point" have given rise to the anomaly of
settling a dispute without having the authority of a judgment and sometimes
without the consent of the interested parties; in this way, the principle of
voluntary jurisdiction, which was at the basis of the system, ran the risk
of disappearing as the result of a diversion which was easy to undertake.
In order to forestall such consequences, the Charter substituted for these
expressions simply the terms "any legal question" (in English no change was
necessary, because the word question already corresponded with the French
point).
In my view, this strange notion which has been called "advisory arbitration"
has now disappeared, as well as the participation of judges ad hoc in
advisory opinions. The disturbing element having been removed, the advisory
function of the Court will assume great importance, and the Court will not
have to settle genuine disputes by a strange and indirect method, a sort of
travesty of contentious procedure.
Grant Gilmore, in emphasizing the reduction of jurisdiction brought about by
the Charter, has observed that the contentious cases decided by the old
Court, being more or less linked to the consent of the parties, generally
had only secondary importance, while those matters which were decided by
advisory opinion were [p74] much more interesting. (Yale Law Journal, August
1946. The International Court of Justice, pp. 1053, 1054 and 1064.)
That a Court should be asked for an opinion on theoretical questions may
seem strange. But it must not be forgotten that the International Court of
Justice has a double character: that of tribunal, and that of counsellor.
And it is quite fitting for an advisory body to give an answer in abstracto
which may eventually be applied to several de facto situations: minima
circumstantia facti magnam diversitatem juris.
It is true that Manley Hudson made the point that the Permanent Court never
deviated from the facts (The Permanent Court of International Justice, 1933,
para. 470, pp. 495- 496, and note 69), but he admits too that in Advisory
Opinion No. I the question had already been decided by the International
Labour Office, and that the request for the opinion had as its sole purpose
the establishment of a criterion for the future (Hudson, op. cit., p. 497,
P.C.I.J., Series B., No. I, p. 14).
Any request—apart from a quite artificial attitude, which cannot be
presumed—always arises from or is influenced by facts, but it is also
possible to eliminate the concrete elements, so as to reveal an isolated
point of doctrine.
In the original report by Lapradelle, in 1920, an abstract request was
already contemplated in connexion with the distinction between a "point", on
the one hand, which was always limited to a question of pure, theoretical
law, and, on the other hand, a "dispute", which had arisen from a concrete
disagreement, already in existence.
Such a distinction therefore corresponds to the idea held by the founders of
the Court, and it was clearly indicated in the plan proposed in 1920 by the
Brazilian jurist Clovis Bevilacqua. It is for all these reasons that the
Permanent Court could say :
"There seems to be no reason why States should not be able to ask the Court
to give an abstract interpretation of a treaty; rather would it appear that
this is one of the most important functions which it can fulfil." (P.C.I.J.,
Series A., No. 7, pp. 18 19 ; Series B., No. I, p. 24.)
It is even preferable that the Court should ignore disputes that have given
rise to any particular question. The Court would not then be led to incur
responsibility by departing from its normal duty ; the Court would thus
leave a wider field of appreciation open to the body which would have to
apply the convention without slighting the prestige of the tribunal.
2.—I am glad to note that the first opinion for which the Court is asked
affords a perfect example of the manner in which I would [p75] wish
questions always to be put. The Court has not even had above all to
"consider whether the request for the advisory opinion relates to a legal
question actually pending between two or more States", as required by
Article 82 of the Rules.
It is true that one of the recitals at the head of the resolution adopted by
the General Assembly refers in precise terms to what happened in certain
meetings of the Security Council, but if the questions asked are clear
enough to make a complete answer possible, the Court is not bound by mere
recitals.
On the other hand, if the Court chose to know the facts, it would not be
limited, and would be free to inform itself not partially, but completely.
That is why the Secretary General did not send to the Court only the minutes
of the three meetings referred to, but sent copious documentation, which the
Assistant Secretary General in charge of the Legal Department used in his
oral statement.
Thus, the examination of these documents, as of all other elements which we
have been able to examine for the purpose of investigation, convinces us
even further that we should make a purely theoretical study of the question,
so as to enable the Court without the assistance of any individual or State,
to give an opinion of which the effects would be applicable to all Members
of the Organization.
In fact, it can be seen, by examining the whole history of the Security
Council and of the General Assembly, since the United Nations was founded
two years ago, that almost the same arguments have been used and the same
criticism reproduced alternatively by the representatives of certain States
who found themselves, by the force of circumstances, in similar, though
opposite, situations.
The discussion which began in the Security Council at the end of August 1946
might even be compared to that which had already taken place in the same
body in January 1946; this made it possible for John Hazard to write about
the idea of bargaining in the admission of Members even before the question
really came up in the United Nations. (Yale Law Journal, cit., p. 1031.)
3.—By applying an objective criterion faithfully, any legal question can be
examined without considering the political elements which may, in some
proportion, be involved.
Objection to the political aspect of a case is familiar to domestic
tribunals in cases arising from the discretionary action of governments,
but the Courts always have a sure means of rejecting the non liquet and of
acting in the penumbra which separates the legal and the political, in the
endeavour to protect individual rights. [p76]
In my country, an eminent jurist who was also a member of this Court, Ruy
Barbosa, examined the problem fully in the light of comparative law (Direito
do Amazonas ao Acre, Rio de Janeiro, 1910) ; it is particularly interesting
to see in his work how, for instance, the history of the Washington Court
from the beginning of the country's autonomous existence, through the war of
Secession, until 1937, and the adoption of the New Deal by Franklin
Roosevelt, affords useful information.
The decisions known as the "Insular Cases" have been ably commented on. C.
F. Randolph, for instance, states that "these may be momentous political
questions without the precincts of the Court; within, they are simple
judicial questions" (The Law and Polices of Annexation, p. 105.)
But the possibility of a separation of the two aspects is still admitted in
other countries, whose juridical systems are quite different from those of
America. In this connexion, the activity of the French Council of State
might be mentioned; its jurisprudence embraces a constantly widening field.
If we move into the field of international law, we observe that, outside the
general wishes expressed in the Preamble, the Charter of the United Nations
reminds us that the adjustment or settlement of international disputes or
situations which might lead to a breach of the peace is to be brought about
by peaceful means, and in conformity with the principles of justice and
international law (Article I, para. I).
The good faith in which the obligations assumed in accordance with the
Charter shall be fulfilled is also mentioned (Article 2, para. 2), as well
as the duty of the Security Council to act in accordance with the purposes
and principles of the United Nations (Article 24, para. 2).
Consequently, it cannot be denied that the United Nations rests essentially
on legal foundations; the sovereign equality of States is restricted, in
order to promote harmony among peoples (P.C.I.J., Series B., No. 13, p. 22),
and it must be admitted that all nations, large or small, have had to limit
their international activities.
The most typically political acts, such as the declaration of war, are
subject to ingeniously linked "abortive" measures; on the other hand, the
power to conclude treaties is regulated (Article 103).
In such conditions, the discretionary powers which are expressly granted, or
which can filter through numerous flexible provisions, always come up
against limitations and must, in addition, be exercised with a view to the
aims of this legal order. [p77]
This is why the legal examination of questions can be extended to the
frontiers of political action, although (as certain great minds would wish)
the abolition of non justiciable disputes has not yet been attained.
In the present case, the legal question is clearly apparent, and the Court
can decide it without enquiring whether hidden political motives have been
introduced or not, in the same way as the old Court has done in the Opinion
No. 23:
"The Court.... is called upon to perform a judicial function, and .... there
appears to be no room for the discussion and application of political
principles or social theories...." (Series B., No. 13, P. 23.)
4.—Passing to the examination of the particular case, and dismissing the
notion of the universality of the United Nations, an ideal which has not yet
become a guiding rule for the admission of new Members, the following
question must first be considered : whether there exists, or not, a
subjective right to be admitted to this international society.
In favour of an affirmative answer, it has been suggested that the notion of
an obligation in favour of third parties should be applied by analogy ; such
a notion has been adopted in several treaties, and also by various
international groups, such as the Industrial Property Group, to which each
country is free to adhere, such adherence being sufficient for the country
to begin to enjoy its rights and assume its obligations.
But here the act involved is not unilateral, but manifestly bilateral; and
it is complete only when the request for admission has been accepted by the
principal organs of the United Nations.
Such a request is binding only on the applicant, and even if it is founded
on the existence of the qualifications required by the Charter, the
candidate cannot himself judge whether the conditions are fulfilled in
conformity with Article 4. This is the task of the Organization, which may,
or may not, accept the proposal by a judgment which it alone can render.
Therefore it is not a question of right, but simply of interest, which may,
however, be transformed later by the judgment in question.
The conditions for admission, as deliberately laid down, are so broad and
flexible that the recommendations and decisions relating thereto necessarily
contain a strong arbitrary element.
It would be difficult to say that any one of the required conditions has a
purely objective character, and that it could be appraised algebraically;
and despite the place allotted to the word "judgment", it is precisely in
the matter of the peace loving nature of [p78] a State that a wide scope has
been given to the political views of those who are called upon to pronounce
themselves.
Motives of all kinds, tending to unite or separate men and countries, will
slip through the remaining loopholes; all kinds of prejudices, and even
physical repugnance will find a way of influencing the decision, either by
an act of the will or even through the action of the subconscious. Each
appraisal will be psychologically determined according to the criterion
applied by each voter.
It would be vain to require in practice that the representatives of States
should act exclusively according to ideal and abstract considerations,
seeing that at the basis of every social organization, there are only men,
whose virtues and faults, individually or collectively, are almost the same.
The philosophical quarrel of the "universals" has not succeeded, through the
centuries, in giving any other basis to human groups, in spite of the effect
of nominalist, realist and conceptualist doctrines on legal personality, or
on the institutional organism.
In short, all political considerations may intervene in determining the
judgment of the organs of the United Nations regarding the qualifications
laid down in Article 4 of the Charter. Hence, objections that have been
raised regarding the protection of the rights of man, the attitude of
countries during the last war, the extent of diplomatic relations, etc.,
may, in principle, justify the rejection of an application.
The idea arose in the San Francisco Conference itself, which approved, by
acclamation, a proposal that countries whose governments had been
established with the aid of the military force of countries that had fought
against the United Nations, should be held not to fulfil the required
conditions.
A direct reference to democratic institutions was avoided, roughly in the
terms adopted at the Teheran Conference of 1943 (Goodrich and Hambro,
Charter of the United Nations, p. 80), in order not to intervene in or even
meddle with the domestic affairs of a country ; but the report itself, which
expressed such fears, did not fail to stress that such an appraisal might be
made when judgment as to the required qualifications was given. (U.N.C.I.O.,
Committee I/2, Doc. 1160, Vol. VII, p. 316.)
5.—On the other hand, it must be admitted that the examination of
candidatures has been limited by determining all the requirements that a
candidate was obliged to fulfil; this was the minimum considered necessary
to prevent arbitrary acts.
Consequently, the draft adopted differs essentially from that of the League
of Nations, wherein no qualifications were required, [p79] nor was previous
enquiry made into the candidate's past. The candidate was merely invited to
enter into an engagement for the future by giving ("provided that")
effective guarantees of its sincere intention to observe its international
obligations. A more restrictive and less discretionary regime was better
suited to the rule of law which the world was desirous of re establishing
after the Moscow declaration of the Four Powers in 1943, and after the
Atlantic Charter.
If we look at their method of construction, we shall find that the builders
of the San Francisco Charter, in order to avoid increasing the number of
articles, decided to provide for express faculties in certain cases ; thus,
exceptions were made in regard to the important questions subject to a two
thirds majority (Charter, Article 18, para. 3), to territories to be brought
under the trusteeship system (Article 77, para. 2), to non member States
which may become parties to the Statute (Article 93, para. 2), and to
decisions ex cequo et bono (Statute, Article 38, para. 2).
But Article 4 forms no exception to conditions definitely laid down ; as
regards the absence of the word "condition" in the English text, this does
not change the system, if it be remembered that, on several occasions, the
same word, taken in the same sense, corresponds in English sometimes to
condition (Charter, Article 93, and Statute, Article 4, paras. 2 and 3, and
Articles 18 and 35), and sometimes to qualification (Statute, Articles 2 and
9).
The examination of all the documents leads to the conclusion that exhaustive
interpretation has been current in the practice of the organs of the United
Nations, the Members of which have reciprocally made complaints on the
subject of requirements lying outside the scope fixed by Article 4. It has
never been asserted that a country fulfilling all the legal conditions might
nevertheless not be admitted, because other conditions were not fulfilled ;
on the other hand, it has always been stated that the absence of such
qualifications prevented the fulfilment of the conditions prescribed by a
provision that it was desired not to infringe.
And if I were not faced with an abstract question, and, consequently, if I
had to take facts into account, I should consider that allegations which
might be the basis of the first question asked have not been proved.
6.—Having established that the required conditions are fixed, it might still
be possible—having regard to the doctrine of the relativity of rights
already accepted in international law (P.C.I.J., Series A., No. 7, p. 30 ;
and No. 24, p. 2 ; Series A./B., No. 46, p. 167)—to admit a kind of
censorship for all cases in which there has been a misuse or, at any rate,
abnormal use of power in the [p80] appreciation of the exhaustive list of
qualities—even granting a wide scope to political considerations.
Any legal system involves limitations and is founded on definite rules which
are always ready to reappear as the constant element of the construction,
whenever the field of action of discretionary principles, adopted in
exceptional circumstances, is overstepped.
This is a long established principle, and has served, during centuries, to
limit the scope of the principle qui suo jure utitur neminem laedit.
The concept of the misuse of rights has now been freed from the classical
notions of dolus and culpa; in the last stage of the problem an enquiry into
intention may be discarded, and attention may be given solely to the
objective aspect; i.e., it may be presumed that the right in question must
be exercised in accordance with standards of what is normal, having in view
the social purpose of the law. (Cf. Swiss Civil Code, Art. 2; Soviet, Art. I
; and Brazilian, Art. 160.)
There are even restrictions on arbitrary decision. It would, no doubt, be
difficult to fix limits a priori, though examples might easily be given;
e.g., could Switzerland be regarded as a non peace loving country ? Could
policy override the law to such an extent ?
In another field, it might also be asked how the United Nations could
continue to function if the reservation in the Charter regarding domestic
jurisdiction was subject to no control.
But here there would be no need to seek for reasons; for the Court has
before it a theoretical opinion. In any case, it would be a very difficult
task to perform, because the Members voting are not bound to state their
reasons.
Of course, if they choose to express their motives, they themselves would
open the way to the examination of the restrictions, by transforming an
abstract act into a causal act (as sometimes happens in private law in the
case of certain forms of bonds), in such a way that an enquiry would be
possible into the existence and authenticity of a particular cause. The
falsa demonstratio may thus vitiate the act when it is subordinated to a
certain motive.
It is true that it has been maintained that the statement of reasons is not
merely an act of courtesy, but the fulfilment of a duty which enables the
Assembly to know the reasons for a refusal. But if the great majority of the
Members of the United Nations hold that the Security Council's
recommendation is a condition sine qua non for the admission of a Member by
the Assembly, it would be useless for the latter to verify the reasons [p81]
that the Council might have had for not reporting favourably on the
application.
7.—The request for an opinion is not confined to a general point. It also
contains a particular question, namely, the hypothetical case in which an
affirmative vote is made subject to simultaneous admission of other States.
Such an attitude has been alleged directly or indirectly, clearly or in a
disguised manner, on several occasions.
But there is no question of a simple example or corollary, which would make
a special reply superfluous ; on the contrary, the second question is, from
its nature, not wholly included in the first. There is a change of plane
from the individual to the collective, and this is not legally justified, if
arbitrary action is excluded ; there is a change from the consideration of
the qualities inherent in a certain candidate, to circumstances foreign to
that candidate and concerned with the interests of third parties.
Once it is admitted that a State has proved that it has all the required
qualifications, a refusal to accept its application might be considered
tantamount to a violation, not only of an interest, but of a right already
established, the acceptance of the State having been recognized, by final
judgment, to be fully justified.
The most weighty reasons, such as the validity of a prior international
undertaking, even if that undertaking bound all the Members of the United
Nations, could not, in any case, justify the abandonment of a rule of law as
an act of retortion. It would, in law, be equally abnormal to refuse
admission in order to avoid acting unjustly towards a third party, or to
defend oneself against action considered to be arbitrary, as it would be to
demand compensatory advantages from a candidate.
8.—Having completely covered the question in its true limits, a judge will
have fulfilled his duty if he gives a legal answer as to the law,
independent of facts and without commenting on the attitude of any
particular State (P.C.I.J., Series B., No. 13, p. 24).
If he does so, he will not hinder the political activity of the organs that
are responsible for the maintenance of peace; for elements of expediency,
manifest or hidden, can always be considered when reasonable use is made of
the wide possibilities opened by Article 4 of the Charter. Respect for law
must never constitute a reason for disturbing international harmony, nor
cause an upheaval in the life of any society.
(Signed)
PHILADELPHO ZEVEDO. [p82]
DISSENTING OPINION OF JUDGES BASDEVANT, WINIARSKI, SIR ARNOLD McNAIR AND
READ.
1. We regret that, while we concur in the opinion of the majority of the
members of the Court as to the legal character of the first question, as to
the power of the Court to answer it and the desirability of doing so, and
as to the competence of the Court to give any interpretation of the Charter
thereby involved, we are unable to concur in the answer given by the
majority to either question, and we wish to state our reasons for not doing
so.
2. The request made to the Court for an advisory opinion is as follows:
"Is 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, juridically entitled to make its consent
to the admission 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 ?"
There are two questions and we shall begin by examining the first.
3. In our opinion, it is impossible to regard the first question as one
which relates solely to the statements or the arguments which a Member of
the United Nations may make or put forward in the Security Council or in the
General Assembly when those organs are considering a request for admission,
and not to the reasons on which that Member bases its vote. The Court is
asked whether a Member is "juridically entitled to make its consent to the
admis sion" dependent on conditions not provided for by paragraph I of
Article 4. Its consent to admission is expressed by its vote. It is
therefore the vote that is in question, as is confirmed by the expression
"subject its affirmative vote" used in the second question, which is
complementary to the first. But it would be a strange interpretation which
gave a Member freedom to base its vote upon a certain consideration and at
the same time forbade it to invoke that consideration in the discussion
preceding the vote. Such a result would not conduce to that frank exchange
[p83] of views which is an essential condition of the healthy functioning of
an international organization. It is true that it is not possible to fathom
the hidden reasons for a vote and there exists no legal machinery for
rectifying a vote which may be cast contrary to the Charter in the Security
Council or the General Assembly. But that does not mean that there are no
rules of law governing Members of the United Nations in voting in either of
these organs; an example is to be found in paragraph I of Article 4
prohibiting the admission of a new Member which does not fulfil the
qualifications specified therein. This distinction, which it has been
attempted to introduce between the actual vote and the discussion preceding
it, cannot be accepted ; it would be inconsistent with the actual terms of
the question submitted to the Court, and its recognition would involve the
risk of undermining that respect for good faith which must govern the
discharge of the obligations contained in the Charter (Article 2, paragraph
2).
4. The question submitted to us is whether, apart from the qualifications
expressly specified in paragraph I of Article 4, a Member of the United
Nations is at liberty to choose the reasons on which it may base its vote or
which it may invoke in the Security Council or the General Assembly in the
course of the proceedings relating to an application for admission, or
whether, on the other hand, that Member is forbidden to rely on
considerations which are foreign to the qualifications specified in
paragraph I of Article 4. The question has been put to us in terms of the
conduct of a member of the United Nations in the Security Council or in the
General Assembly; the Member is envisaged in its capacity as a member of
these organs, that is to say, in the discharge of its duty to contribute to
the making of a recommendation by the Security Council or of a decision by
the General Assembly on that recommendation. The freedom of that Member in
this respect cannot be either more or less than that of the organ as a
member of which he is called upon to give his vote. Accordingly, in order to
answer the question put with regard to the conduct of a member, we are
compelled to begin by deciding what the answer should be in relation to the
organ, be it the Security Council or the General Assembly.
5. The reason why the question stated has been submitted to the Court is
that the relevant provisions did not seem to be clear enough to provide a
simple and unambiguous answer to the question. Such, at any rate, was the
view of the General Assembly and we share it. Accordingly, in our opinion,
we are confronted with a question of interpretation and therefore we must
apply the rules generally recognized in regard to the interpretation of
treaties.
6. The relevant article of the Charter is No. 4, which is as follow: [p84]
"I. 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.
2. 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."
Although the terms of the question as put to the Court by the General
Assembly are confined to mentioning the first paragraph of this Article, its
second paragraph is equally relevant, because it deals with the discussion
and the voting in the Security Council and the General Assembly when
examining a request for admission, and because it is the second paragraph
which fixes the respective spheres of the Security Council and the General
Assembly in this matter.
Moreover, it is a rule of interpretation which was well recognized and
constantly applied by the Permanent Court of International Justice that a
treaty provision should be read in its entirety.
Again, it must be placed in its legal context as supplied by the other
provisions of the Charter and the principles of international law.
7. The first conclusion that emerges from a reading of Article 4 in its
entirety is that the Charter does not follow the model of the multilateral
treaties which create international unions and frequently contain an
accession clause by virtue of which a declaration of accession made by a
third State involves automatically the acquisition of membership of the
union by that State. On the contrary, the Charter, following the example of
the Covenant of the League of Nations and having due regard to the fact that
it is designed to create a political international organization, has adopted
a different and more complex system, namely, the system of admission.
Assuming that a request is made by a State desiring to be admitted, the
system involves a decision by the General Assembly whereby admission "will
be effected"; this decision is taken upon a recom-mendation made by the
Security Council; that recommendation cannot be made, and that decision
cannot be taken, unless certain qualifications specified in paragraph I of
Article 4 are possessed by the applicant State.
8. The essential feature of this system is the decision of the General
Assembly whereby the admission "will be effected". The provisions of
paragraph 2 of Article 4, which fix the respective powers of the General
Assembly and the Security Council in this matter, do not treat the admission
of new Members as a mere matter of the routine application of rules of
admission. It would only be possible to attribute such a meaning to this
Article if it had adopted a system of accession and not of admission ; and
if accession had been the system adopted it would have been better to have
placed the Secretary General in control of the procedure. This [p85] Article
does not create a system of accession, but the entirely different system of
admission. In the working of this system the Charter requires the
intervention of the two principal political organs of the United Nations,
one for the purpose of making a recommendation and then the other for the
purpose of effecting the admission. It is impossible by means of
interpretation to regard these organs as mere pieces of procedural machinery
like the Committee for Admissions established by the Security Council. In
the system adopted by the Charter, admission is effected by the decision of
the General Assembly, which can only act upon a recommendation of the
Security Council, and after both these organs are satisfied that the
applicant State possesses the qualifications required by paragraph I of
Article 4.
9. The resolutions which embody either a recommendation or a decision in
regard to admission are decisions of a political character ; they emanate
from political organs ; by general consent they involve the examination of
political factors, with a view to deciding whether the applicant State
possesses the qualifications prescribed by paragraph I of Article 4 ; they
produce a political effect by changing the condition of the applicant State
in making it a Member of the United Nations. Upon the Security Council,
whose duty it is to make the recommendation, there rests by the provisions
of Article 24 of the Charter "primary responsibility for the maintenance of
international peace and security"—a purpose inscribed in Article I of the
Charter as the first of the Purposes of the United Nations. The admission of
a new Member is pre eminently a political act, and a political act of the
greatest importance.
The main function of a political organ is to examine questions in their
political aspect, which means examining them from every point of view. It
follows that the Members of such an organ who are responsible for forming
its decisions must consider questions from every aspect, and, in
consequence, are legally entitled to base their arguments and their vote
upon political considerations. That is the position of a member of the
Security Council or of the General Assembly who raises an objection based
upon reasons other than the lack of one of the qualifications expressly
required by paragraph I of Article 4.
That does not mean that no legal restriction is placed upon this liberty. We
do not claim that a political organ and those who contribute to the
formation of its decisions are emancipated from all duty to respect the law.
The Security Council, the General Assembly and the Members who contribute by
their votes to the decisions of these bodies are clearly bound to respect
paragraph I of Article 4, and, in consequence, bound not to admit a State
which fails to possess the conditions required in this paragraph.
But is there any other legal restriction upon the freedom which in principle
these organs enjoy in the choice of the reasons for their decisions, that is
to say, upon the liberty which in principle a State [86] enjoys in choosing
the reasons for its decisions, and in this case, for its vote ? Is there in
this case a restriction consisting in a prohibition to oppose an
application for admission on grounds foreign to the qualifications required
by paragraph I of Article 4?
10. We must therefore decide whether there exists such a restriction upon
the principle of law stated above.
There is a rule of interpretation frequently applied by the Permanent Court
of International Justice, when confronted with a rule or principle of law,
to the effect that no restriction upon this rule or principle can be
presumed unless it has been clearly established, and that in case of doubt
it is the rule or principle of law which must prevail. In the present case,
before acknowledging the existence of any restriction upon the principle of
the widest examination of requests for admission by the Security Council,
the General Assembly and their members, it is necessary to show that such a
restriction has been established beyond a doubt.
Can it therefore be said that the application of this principle is subject
to a clearly established restriction precluding the putting forward, in the
course of the examination of requests for admission, of considerations not
expressly specified in paragraph I of Article 4 ?
11. There is no treaty provision which establishes such a restriction.
The effect of paragraph I of Article 4—the only relevant text in this
connexion—is that certain qualifications therein enumerated are required for
admission, and that these qualifications are essential ; but there is no
express and direct statement that these qualifications are sufficient and
that once they are fulfilled admission must of necessity follow.
Not only does the paragraph not say this, but it does not even imply any
such restriction ; indeed quite the contrary is the case.
The language of Article 4—"Membership is open", "Peuvent devenir Membres",
"admission will be effected", "se fait"—is permissive in tone, not
obligatory. So far as we understand, the Chinese, Russian and Spanish texts
contain nothing which contradicts this view. Paragraph I of Article 4
enacts that States which fulfil the conditions therein enumerated possess
the qualific-ations required for admission ; this enumeration is exhaustive
in the sense that no other condition is required by the Charter ; this
provision, which prohibits the admission of a State not fulfilling these
conditions, fully carries out the intentions of the drafters of the Charter
and is entitled to complete legal effect. But this provision contains no
evidence of any definite intention to deprive the Security Council or the
General Assembly or their members of the legal right possessed by them of
giving effect to other considerations.
Indeed, so far from depriving them of this power, Article 4 lends support to
its existence. [p87]
12.This view accords with the intentions of the framers of the Charter.
Without wishing to embark upon a general examination and assessment of the
value of resorting to travaux préparatoires in the interpretation of
treaties, it must be admitted that if ever there is a case in which this
practice is justified it is when those who negotiated the treaty have
embodied in an interpretative resolution or some similar provision their
precise intentions regarding the meaning attached by them to a particular
article of the treaty. This is exactly what was done with respect to
paragraph 2 of Article 4.
13. Before dealing with this point we may begin by stating that while the
Minutes of the San Francisco Conference show clearly the importance attached
to the qualifications for admission therein set out and also to the
respective rôles of the General Assembly and the Security Council in regard
to admission, and while they make it clear that the above mentioned
qualifications are regarded as essential, they contain no indication of any
intention to regard them as sufficient to impose upon the Organization a
legal obligation to admit the State which possesses them.
14. Without describing in detail the drafting of Article 4, we shall mention
the following points :
The Dumbarton Oaks Proposals (Chapter III, Membership, and Chapter V,
General Assembly) contained the two following sentences :
"Membership of the Organization should be open to all peace loving States."
"The General Assembly should be empowered to admit new Members to the
Organization upon recommendation of the Security Council."
(It will be remembered that these were proposals and not draft articles.)
At San Francisco, the first of these sentences was dealt with by Committee 2
of Commission I, and finally emerged as paragraph I of Article 4 of the
Charter. The Minutes of this Committee are to be found in Volume VII of the
Conference Records. On page 306 will be found the report of the Rapporteur
of Committee 1/2 submit ting the text of paragraph I of Article 4 in
substantially the form adopted. After dealing with the rejection of the
proposal in favour of universal membership, it referred to the "two
principal tendencies .... manifested in the discussion", one in favour of
"inserting in the Charter specific conditions which new Members should be
required to fulfil, especially in matters concerning the character and
policies of governments", while the other view was that "the Charter should
not needlessly limit the Organization in its decisions concerning [p88]
requests for admission and asserted that the Organization itself would be in
a better position to judge the character of candidates for admission".
"It was clearly stated that the admission of a new Member would be. subject
to study, but the Committee did not feel it should recommend the enumeration
of the elements which were to be taken into consideration. It considered the
difficulties which would arise in evaluating the political institutions of
States and feared that the mention in the Charter of a study of such a
nature would be a breach of the principle of non intervention, or if
preferred, of non interference. This does not imply, however, that in
passing upon the admission of a new Member, considerations of all kinds
cannot be brought into account." (Vol. VII, p. 308).
It will be noted that this passage calls upon the Organization, that is to
say, the Security Council and the General Assembly, to conduct the most
extensive investigation. No doubt it might be argued that the final sentence
quoted relates solely to the investigation which the Organization must make
regarding the qualifications specified in paragraph I of Article 4. This
interpretation is in no way self evident; it is purely conjectural and is
inconsistent with the French text of this report, which states the duty of
the Organization to be "de se former un jugement sur l'opportunité de
l'admission d'un membre nouveau". Judgment upon the expediency of an
admission is not a mere declaration that the conditions specified in
paragraph I of Article 4 are satisfied ; it goes much further than that.
A little further on (p. 309), the same report, commenting upon the future
paragraph I of Article 4, in a sentence the significance of which is
reinforced by the fact that this sentence was substituted for an earlier and
less precise text (p. 290), declares that "the text adopted sets forth more
clearly than the Dumbarton Oaks Proposals those qualifications for
membership which the delegates deem fundamental, and provides a more
definite guide to the General Assembly and Security Council on the admission
of new members". The statement that the qualifications required by paragraph
I of Article 4 are considered as fundamental in no way excludes, but, on the
contrary, implies, the possibility of further requirements, upon grounds
which are different and more discretionary.
The second sentence of the Dumbarton Oaks Proposals quoted above was dealt
with at San Francisco by Committee I of Commission II (General Assembly),
whose proceedings are recorded in Volume VIII of the Records of that
Conference. The report of the Rapporteur of this Committee, as approved by
the Committee on May 28th, 1945, contains the following paragraph (VIII, p.
451):
"The Committee recommends that new members be admitted by the General
Assembly upon recommendation of the Security [p89] Council. (See attached
Annex, Item 2.) In supporting the acceptance of this principle, several
delegates emphasized that the purpose of the Charter is primarily to provide
security against a repetition of the present war and that, therefore, the
Security Council should assume the initial responsibility of suggesting new
participating states." (The italics are ours.)
Annex, Item 2, Vol. VIII (p. 456), is as follows:
"The General Assembly may admit new Members to the Organization upon the
recommendation of the Security Council."
Language more discretionary, more permissive, than "may admit", "a le
pouvoir d'admettre", it would be difficult to find.
The Summary Report of the 15th Meeting of the same Committee, held on June
18th, 1945, contains the following passage (Vol. VIII, p. 487):
"Admission of New Members.
The Committee considered the following texts of Chapter V, Section B,
paragraph 2, of the Dumbarton Oaks Proposals, which were under consideration
by the Coordination Committee :
'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.'
'L'admission de tout État comme membre des Nations unies est prononcée par
l'Assemblée générale sur la recommandation du Conseil de Sécurité.'
The Secretary reported that he had been advised by the Secretary of the
Advisory Committee of Jurists that that Committee felt these texts would not
in any way weaken the original text adopted by the Committee. In the light
of this interpretation, the Committee approved the texts." (The italics are
ours.)
The Second Report of the Rapporteur of Committee II/I, which was circulated
to the Members for their approval on June 19th, 1945, contains the following
passage (Vol. VIII, p. 495):
"Admission of New Members (Chapter V, Section B, paragraph 2, of the
Dumbarton Oaks Proposals).
The Committee considered a revision of the text of this paragraph which was
under consideration by the Co ordination Committee in order to determine
whether the power of the Assembly to admit new Members on recommendation of
the Security Council was in no way weakened by the proposed text.
The Committee was advised that the new text did not in the view of the
Advisory Committee of Jurists, weaken the right of the Assembly to accept or
reject a recommendation for the admission of a new member....
The Committee agreed that this interpretation should be included in its
minutes as the one that should be given to this provision of the Charter,
and on this basis approved the text as suggested by the Coordination
Committee." (Italics ours.) [p90]
These passages show that the text thus worked out which ultimately became
paragraph 2 of Article 4, was regarded as conferring very wide powers upon
the General Assembly.
Finally, M. Delgado, the Rapporteur of Commission I, said, both in his
Report to the Conference (Vol. VI, p. 248) and in his speech at the plenary
session on the 25th June :
"New Members will be admitted only if they are recognized as peace loving,
accept the obligations contained in the Charter, and, upon scrutiny by the
Organization, are adjudged able and ready to carry out those obligations."
(Vol. I, p. 615.)
He thus stated very clearly that the qualifications specified in paragraph I
of Article 4 are essential qualifications. Had he considered them also as
sufficient, he would not have failed to say so.
15. Nor can the significance of the word "recommendation", in paragraph 2 of
Article 4, be overlooked. It is the function of the Security Council to
reject an applicant or to recommend its admission. On the one hand, this
fact indicates the discretionary nature of this function of the Security
Council, while, on the other hand, the freedom of the General Assembly
either to accept the recommendation and admit the applicant or to reject the
application indicates that the function of the General Assembly in this
matter is also discretionary.
16. So far as particularly concerns the freedom of a Member of the United
Nations to put forward, in the course of the examination of an application
for admission, this or that consideration foreign to the qualifications
specified by paragraph I of Article 4, we may add that the General Assembly
and the Security Council possess, by virtue of Articles 21 and 30 of the
Charter, the right to regulate their own procedure. We can find nothing else
which could restrict the freedom of discussion and, consequently, subject to
the general control exercised by each organ, a Member enjoys the right of
expressing its views in the course of the debates.
17. In our opinion it follows from these considerations that a Member of the
United Nations remains legally entitled, either in the Security Council or
in the General Assembly, during the discussion upon the admission of a new
Member, to put forward considerations foreign to the qualifications
specified in paragraph I of Article 4, and, assuming these qualifications to
be fulfilled, to base its vote upon such considerations.
18. In our opinion, while the Charter makes the qualifications specified in
paragraph I of Article 4 essential, it does not make them sufficient. If it
had regarded them as sufficient, it would not have failed to say so. The
point was one of too great importance to be left in obscurity.
It is easy to understand why the authors of the Charter, after having
rejected the principle of universality, should deem it [p91] undesirable to
exclude the consideration of the very diverse political factors which the
question of admission can in certain cases involve. When one considers the
variety in the political conditions of the States which were not original
Members of the United Nations —some ex enemy, some ex neutral, one
permanently neutral by treaty, some with empires and some without, some
unitary and some consisting of federal or other unions of States—and when
one considers the political repercussions attending the union of existing
States, or the emergence of new States and their entry into the United
Nations—perhaps, the framers of the Charter, after having decided in this
connexion to entrust a special mission to the Security Council, were wise in
their generation in taking the view (as we submit they did) that it was
impossible to do more than to prescribe certain preliminary and essential
qualifications for membership and to leave the question of admission to the
good faith and the good sense of the Security Council and the General
Assembly, and particularly the former by reason of the special
responsibilities laid upon it. For the authors of the Charter had to look
beyond the year 1945 and endeavour to provide for events which the future
had in store. A little reflection upon the changes in the map of the world
during the short period which has elapsed since June 1945 suggests to us
that they were prescient and prudent in the plan wich they adopted.
19. When a Member of the United Nations imports into the examination of an
application for admission a consideration which is foreign to the
qualifications of paragraph I of Article 4, what he does is not the same
thing as it would be if the Charter made such a consideration a
qualification additional to those already required. That would involve
amending the Charter, and there can be no question of that. The Member is
merely introducing into the discussion, as he has a right to do, a political
factor which he considers of importance and on which he is entitled to rely
but which the other Members are equally entitled to consider and decide
whether to accept or reject, without being legally bound to attach any
weight to it ; whereas on the other hand they would be legally bound to give
effect to an objection based on the duly established lack of one of the
qualifications specified in paragraph I of Article 4.
20. While the Members of the United Nations have thus the right and the duty
to take into account all the political considerations which are in their
opinion relevant to a decision whether or not to admit an applicant for
membership or to postpone its admission, it must be remembered that there
is an overriding legal obligation resting upon every Member of the United
Nations to act in good faith (an obligation which moreover is enjoined by
paragraph 2 of Article 2 of the Charter) and with a view to carrying out the
[p92] Purposes and Principles of the United Nations, while at the same time
the members of the Security Council, in whatever capacity they may be there,
are participating in the action of an organ which in the discharge of its
primary responsibility for the maintenance of international peace and
security is acting on behalf of all the Members of the United Nations.
That does not mean the freedom thus entrusted to the Members of the United
Nations is unlimited or that their discretion is arbitrary.
21. For these reasons, our view is that the first question should be
answered as follows :
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 which
possesses the qualifications specified in paragraph I of that Article, is
participating in a political decision and is therefore legally entitled to
make its consent to the admission dependent on any political considerations
which seem to it to be relevant. In the exercise of this power the Member is
legally bound to have regard to the principle of good faith, to give effect
to the Purposes and Principles of the United Nations and to act in such a
manner as not to involve any breach of the Charter.
21. Having now replied to the first question, we shall proceed to the
second, which is as follows :
"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 ?"
The practice of the General Assembly and of the Security Council in regard
to the admission of new Members recognizes an affirmative vote, a negative
vote, or an abstention, but not a vote subject to a condition; so the second
question put must be understood as asking the Court to decide whether a
Member of the Organization is legally entitled, while admitting that the
qualifications prescribed in Article 4, paragraph I, are fulfilled by the
applicant State, to vote against its admission unless the Member is assured
that other States will be admitted to membership in the United Nations
contemporaneously with that State.
This question is put in general terms, and without making any distinction
according to the importance possessed by the vote of any particular Member
in the attainment of the majority required in the Security Council or in the
General Assembly.
23. If it is agreed (as we have already submitted) that a Member of the
United Nations is legally entitled to refuse to vote in favour [p93] of
admission by reason of considerations foreign to the qualifications
expressly laid down in Article 4, paragraph I, this interpretation applies
equally to the second question.
A consideration based on the desire that the admission of the State should
involve the contemporaneous admission of other States is clearly foreign to
the process of ascertaining that the first State possesses the
qualifications laid down in Article 4, paragraph I; it is a political
consideration. If a Member of the United Nations is legally entitled to make
its refusal to admit depend on political considerations, that is exactly
what the Member would be doing in this case.
24. If the request for an opinion involved the Court in approving or
disapproving the desire thus expressed by a Member of the United Nations to
procure the admission of other States at the same time as the applicant
State, it would only be possible to assess this political consideration
from a political point of view. But such an assessment is not within the
province of the Court. An opinion on this subject would not be an opinion on
a legal question within the meaning of Article 96 of the Charter and Article
65 of the Statute. It is one thing to ask the Court whether a Member is
legally entitled to rely on political considerations in voting upon the
admission of new Members ; that is a legal question and we have answered it.
It is quite another thing to ask the Court to assess the validity of any
particular political consideration upon which a Member relies ; that is a
political question and must not be answered.
25. Nevertheless, as we have said, a Member of the United Nations does not
enjoy unlimited freedom in the choice of the political considerations that
may induce it to refuse or postpone its vote in favour of the admission of a
State to membership in the United Nations. It must use this power in good
faith, in accordance with the Purposes and Principles of the Organization
and in such a manner as not to involve any breach of the Charter. But no
concrete case has been submitted to the Court which calls into question the
fulfilment of the duty to keep within these limits ; so the Court need not
consider what it would have to do if a concrete case of this kind were
submitted to it.
(Signed) J. BASDEVANT.
( „ ) WINIARSKI.
( ,, ) ARNOLD D. MCNAIR.
( ,, ) JOHN E. READ. [p94]
DISSENTING OPINION BY M. ZORIČIČ.
[Translation.]
I agree with the Court's opinion as regards its competence to interpret the
Charter, but I am sorry I cannot support the opinion, firstly because I
consider that the Court should have refrained from answering the question
put, and secondly because I cannot accept the conclusions of the reply
I.
The Court's competence in advisory opinions is derived from Article 65 of
the Statute, which says that : "The Court may give an advisory opinion on
any legal question." It follows from this that the Court is not obliged to
give opinions for which it is asked, but on the contrary has a discretionary
power in the matter.
The above interpretation is the same as that adopted by the Permanent Court
of International Justice on March 10th, 1922. Judge J. B. Moore had written
a memorandum on the question of advisory opinions (Acts and Documents
concerning the Organization of the Court, Series 2, Annex 58 a, p. 383), in
which he emphasized that the advisory powers were derived from Article 14 of
the Covenant of the League of Nations. The French text of Article 14 ("La
Cour donnera aussi des avis....") differed from the English text ("The Court
may also give...."), the word "may" in the English text implying a
permission, i.e. a discretion. After careful study of the preparatory work
and of the nature of the Court's duties, Judge Moore reached the conclusion
that it was for the Court itself "to determine in each instance whether ....
it would undertake to give advice" (l. c., p. 384), and that "if an
application for such an opinion should be presented, the Court should then
deal with the application according to what should be found to be the nature
and the merits of the case" (p. 398).
In 1935, Judge Anzilotti relied on this interpretation and added that "there
is no reason to suppose that the Court has ever meant to modify its
attitude" (Series A./B., No. 65, p. 61).
It remains to be seen whether the powers of the present Court are not more
restricted on this subject than were those of the old Court. I do not think
so ; for there can be no doubt that Article 65 of the present Statute, in
which the French text ("peut donner") corresponds entirely with the English
text ("may give"), implies that the [p95] authors of the Statute had the
question in mind, and that they deliberately adapted the French text to the
English, thus giving the Court a discretion to decide whether, in a
particular case, it should give an opinion on a question put, even if it
were a legal question.
The need for such a discretionary power is derived also from the purposes
for which the Court was created, and from its nature as an essentially
judicial body, with the task of encouraging and developing between nations
the principle and methods of judicial decisions, and of contributing thereby
to the peaceful settlement of disputes between States. The Court can only
fulfil this important task in complete independence.
Neither the Charter nor the Statute of the Court contain any provision to
the effect that the Court, even if it considered itself competent, would be
obliged to give an opinion; Article 65, on the contrary, reserves for the
Court a right to take such action as it thinks fit, on a request for an
opinion. I therefore think that the Court should have abstained from
replying to the present question, for the reasons that I will set out
briefly below :
The Assembly resolution and the documents submitted to the Court by the
Secretary General show that the request for an opinion had its origin in a
divergence of views that arose in the Security Council as to the attitudes
adopted by Members of the Council during the discussion on the admission of
certain States. These were views expressed in a political body relating
essentially to political acts, and based on arguments and appreciations of a
political nature. Moreover, I feel bound to conclude from the circumstances
that the request was made to the Court for a definitely political purpose.
It is true that the request submits the question in an abstract form, but it
is no less true, and is beyond doubt, that the Court's answer lends itself
to a different interpretation, namely that it relates to the above mentioned
discussions. And although the Court has stated that it only considers the
question in the abstract, the reply will, in my view, be interpreted as
containing a judgment on the action of members of the Security Council. The
Court is thus drawn on to the slippery ground of politics, and its reply may
well become an instrument in political disputes between States. This may do
considerable harm to the Court's prestige and to the confidence that the
Court should inspire in all nations if it is to fulfil its important duties
as guardian of the law and principal judicial organ of the United Nations.
II.
As however the Court has decided to give an opinion, I must state the
reasons for which I am not in agreement with that opinion. [p96]
I would begin by saying that, in substance, I agree with what is said in the
joint opinion of the Vice President and of Judges Winiarski, Sir Arnold
McNair and Read. My chief reason for writing a separate opinion is that I
look at the question put to the Court from a somewhat different angle,
having in view the concrete cases which gave rise to the request for an
opinion.
Before examining the question before the Court, I have the following
observations to make
The Preamble to the General Assembly's Resolution of November 17th, 1947,
runs as follows:
"Considering the exchange of views which has taken place in the Security
Council at its 204th, 205th, and 206th Meetings, relating to the admission
of certain States to membership in the United Nations...."
This Resolution ends with the following provision :
"Instructs the Secretary General to place at the disposal of the Court the
records of the above mentioned Meetings of the Security Council."
There seems to me to be no possible doubt as to the Assembly's intention ;
the Assembly states the origin and nature of the request for an opinion in
order that the opinion may be given in the light of the facts and
circumstances from which it arose.
It may be said that the question itself is in an abstract form. This does
not seem to be decisive, for it does not remove the fact that the Resolution
of November 17th, 1947, is a whole in which the abstract question is closely
connected with the recital which precedes it and explains its meaning and
scope. The Secretary General supplied the Court with a large number of
documents, and also instructed his representative to make an oral statement
to the Court on the history of the question. It follows from all these facts
that the Court is expressly asked in the Assembly Resolution to give an
opinion, taking account of the facts in which the request originated.
Nothing could be more natural. In human life, all activity is based on
concrete considerations or facts. To attempt to judge and explain such acts
in the abstract would be to misconstrue the intentions, to work in a
vacuum, and to misunderstand the meaning of real life. This is still more
evident in the case of a Court of Justice whose first duty is to decide
whether certain acts are in accordance with law.
***
The request for an opinion is presented as one single question, but there
are in reality two, on different planes : [p97]
(1)Is a Member called upon to vote juridically entitled to make its consent
to the admission of a State to the United Nations dependent on conditions
not expressly provided by paragraph I of Article 4 of the Charter, and
(2)Can such a Member, while it recognizes that 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 ?
It is quite clear that the word "conditions" in the first question has a
different meaning from that which it has in the second. Article 4, paragraph
I, mentions certain conditions that are to be fulfilled by a State desirous
of admission. Thus, it is solely a question of the qualities that must exist
at the moment of considering the admission.
In the second question, the word "conditions" has a very different meaning.
It is used in its habitual legal sense: the condition mentioned in this part
of the application relates to a future and uncertain event, namely, that the
other members of the Council would accept the obligation to vote for the
admission of other States. This condition concerns the members of the
Security Council, who alone could fulfil it, whereas the candidate cannot,
in any way, contribute to its fulfilment.
III.
The first part of the question calls on the Court to decide whether a Member
called upon to vote is juridically entitled to make its consent to admission
dependent on conditions not expressly provided by paragraph I of Article 4
of the Charter.
The legal foundation for a certain method of procedure can only be examined
in the light of the rules of law that govern it. On the subject of voting in
the Council and the Assembly, there are no provisions. Neither the Charter
nor the Rules of procedure of the Council or the Assembly contain anything
as to what a Member may or should do when it votes and—a point of great
importance—there is no obligation on the part of Members to give a reason
for their vote. All that is said on the subject is that each Member has one
vote (Articles 18 and 27 of the Charter) ; the exercise of the right to vote
is left entirely to their discretion.
As a Member who votes is entitled to do so without giving any reasons for
his vote, he may act in accordance with his own view of the case ; and it is
the question of any possible limits to this view that leads to a
consideration of the nature of the provisions of Article 4 of the Charter.
[p98]
For a State to be admitted to the United Nations the required conditions, or
rather qualities, are, according to Article 4, paragraph I, that it shall
be peace loving, that it shall accept the obligations contained in the
Charter, and that it shall be able and willing to carry out these
obligations. It is quite clear that the actual appreciation of these
qualities, and therefore their existence, may depend on elements of all
kinds. But, apart from that, there is nothing in Article 4, paragraph I, to
prevent a Member who votes and thus exercises a political discretion, from
taking into consideration elements of a political nature, not contained in
Article 4. Thus, while, on the one hand, it is endeavoured to interpret this
provision as exhaustive, it is, on the other hand, possible to interpret it
as imposing only the minimum of qualities, i.e., the fundamental qualities
without which no State can be admitted to the United Nations.
As the provision is capable of various interpretations, it follows that, in
the first place, the preparatory work must be looked at, in order to
discover the exact scope of Article 4, in the minds of its authors.
The preparatory work was submitted to the Court, and it appears that the two
paragraphs of Article 4 of the Charter were, in San Francisco, each drafted
by a different Committee : paragraph I by Committee I/2, and paragraph 2 by
Committee II/I.
The Rapporteur to Committee I/2 submitted to the First Commission a report
on the admission of new Members (San Francisco Conference, Document No. 1160
I/2/76 (1), Vol. VII, p. 308), in which it was said that the Committee had
to consider the fundamental problem :
"The extent to which it was desirable to establish the limits within which
the Organization would exercise its discretionary power with respect to the
admission of new Members." (Italics mine.)
Observing that adherence to the principles of the Charter and complete
acceptance of the obligations arising therefrom were essential conditions to
participation by States, the report explains that:
"Nevertheless, two principal tendencies were manifested in the discussions.
On the one hand, there were some that declared themselves in favour of
inserting in the Charter specific conditions which new Members should be
required to fulfil especially in matters concerning the character and
policies of governments. On the other hand, others maintain that the Charter
should not needlessly limit the Organization in its decisions concerning
requests for admission, and asserted that the Organization itself would be
in a better position to judge the character of candidates for admission."
[p99]
Then, mentioning the conditions, or rather the qualities agreed on, which
are those of Article 4, the Report continues:
"It was clearly stated that the admission of a new Member would be subject
to study, but the Committee did not feel it should recommend the enumeration
of the elements which were to be taken into consideration. It considered the
difficulties which would arise in evaluating the political institutions of
States and feared that the mention in the Charter of a study of such a
nature would be a breach of the principle of non intervention, or if
preferred, of non interference. This does not imply, however, that in
passing upon the admission of a new Member, considerations of all kinds
cannot be brought into account." (Italics mine.)
And the report ends with these words:
"The text adopted sets forth more clearly than the Dumbarton Oaks proposals
those qualifications for membership which the delegates deemed fundamental,
and provides a more definite guide to the General Assembly and Security
Council on the admission of new Members." (Italics mine.)
This report was approved by Commission I (Report of Rapporteur of
Commission I, Conference Doc. No. 1142. I/9, Vol. VI, p. 229).
It would seem that any doubt as to the nature of Article 4 is dispelled by
such a clear provision. The authors did not feel they should "recommend the
enumeration of the elements which were to be taken into consideration"; they
desired that "considerations of all kinds" should "be brought into account"
when it was necessary "to pass upon the admission of a new Member", and
finally they stated that the text set forth the conditions "which the
delegates deemed fundamental" and constituted a guide for determining
elegibility.
The above mentioned text thus shows that Article 4 does not contain
exhaustive provisions, but on the contrary is a guide on admissions,
containing only the fundamental and indispensable qualities required of a
candidate. In other words, the conditions of Article 4 are minimum
conditions that must be fulfilled by new Members, and without which Members
cannot be admitted; but these are not the only conditions to be taken into
account when a judgment is formed as to the desirability of admission ; for
a judgment as to desirability cannot be limited or deemed to be a judgment
relating exclusively to the fulfilment of the conditions of Article 4.
The work of Committee II/I and its Report, relating to Article 4, paragraph
2, confirmed this interpretation. The Committee had [p100] drafted a
provision giving the General Assembly a discretionary power as to the
admission of new Members. Certain changes were made by the Co ordination
Committee, and Committee II/I became anxious, as is seen in the minutes of
its Fifteenth Meeting :
"The Secretary reported that he had been advised by the Secretary of the
Advisory Committee of Jurists that that Committee felt these texts would
not in any way weaken the original text adopted by the Committee. In the
light of this interpretation, the Committee approved the text." (Vol. VIII,
pp. 487 488.)
The report of the Rapporteur to Committee II/I is categorical. It states
briefly that the Committee considered a revision of the text "in order to
determine whether the power of the Assembly .... was in no way weakened by
the proposed text", and that "the Committee was advised that the new text
did not .... weaken the right of the Assembly". It goes on as follows:
"The Committee agreed that this interpretation should be included in its
minutes as the one that should be given to this provision of the Charter,
and on this basis approved the text as suggested by the Co ordination
Committee." (Vol. VIII, p. 495.)
It is quite clear that the Committee took special care that the Assembly
should have a discretionary power at the moment when it decides, on the
recommendation of the Council, whether a new Member shall be admitted or
not.
The two reports of the Committees were approved by the respective
Commissions, and it is difficult to suppose that the carefully chosen
wording of these reports, considered first in the Committees, and then by
the Commissions, does not express their thoughts and true intentions. On the
contrary, I believe that these reports are to be taken as agreements on the
interpretation of the provisions in question, and that consequently their
terms must be understood and applied in their normal meaning as forming the
surest means of interpreting Article 4 of the Charter. In my view, the
reports quoted indicate the intention of the authors of the Charter not to
limit either the Security Council or the Assembly by the provisions of
Article 4, but to give them full freedom in the exercise of their political
duties, always with the exception that they should not admit a State which,
in their judgment, did not satisfy the minimum conditions of Article 4,
paragraph I.
From what is said, it follows that the argument to the effect that the terms
of Article 4 : "any such State", would prohibit any account being taken of
political considerations not provided for in Article 4, paragraph I, is not
convincing. The interpretation of paragraph 2 cannot be based on a few
isolated words, but depends on the whole paragraph. The paragraph says that
the admission "of [p101] any such State will be effected by a decision of
the General Assembly upon the recommendation of the Security Council".
Consequently, it is not sufficient to be "such" a State; it is also
necessary for the Council to decide to make a recommendation, and for the
Assembly to decide whether it is willing to accept this recommendation or
not. The Charter therefore does not provide for the automatic admission of
"any such State"; it subordinates submission to the decisions of political
organs with a discretionary power to base their decisions (as has been
shown) on any kind of considerations.
In any case, it would seem difficult to assert, on the one hand, that the
words "any such State" in paragraph 2 of Article 4, prohibit the
introduction of political considerations which could be superimposed on the
conditions of paragraph I and, on the other hand, to maintain that paragraph
2 is concerned only with the procedure for admission.
An interpretation to the effect that decisions on admission are governed by
political considerations notwithstanding Article 4, appears to have been
given by the General Assembly itself, as is seen in the first Resolution
adopted by it on November 17th, 1947, by 46 votes against 1, with 6
abstentions. The Resolution recommends the permanent Members of the
Security Council to consult together with a view to reaching an agreement on
the admission of candidates whose admission has not yet been recommended,
and to submit their conclusions to the Security Council. (Journal of the
General Assembly, No. 56, November 19th, 1947, p. 4.) Can it be suggested
that the only purpose of this Resolution was to invite the permanent Members
to agree solely on the question whether the conditions of Article 4 were
fulfilled or not ? I do not think it can be contested that the Assembly here
had in view a political agreement based on quite general political
considerations.
***
Apart from the preparatory work, the general structure of the Charter shows
the conclusions drawn from the preparatory work to be exact. This will be
seen from a study of (I) the powers and duties of the Security Council, and
(2) the method of admission of States to the United Nations.
(1)Article 24 of the Charter places on the Security Council "Primary
responsibility for the maintenance of international peace and security".
This duty comes before all others, and, failing an express provision, I do
not think that the powers and duties of the Council under Article 24, a
fundamental article of the Charter, can be limited merely by a restrictive
interpretation of Article 4; particularly as, in my opinion, such an
interpretation would be quite [p102] contrary to the intentions of the
authors of these provisions, as expressed in the reports quoted above.
Moreover, there can be no doubt that it is because of this duty that Article
4, paragraph 2, only gives to the Assembly the right to decide on the
admission of new Members subject to the previous recommendation of the
Security Council. This constitutes an exception to the general rule
contained in Article 10 as to the rights of the Assembly ; this exception
can only be understood by bearing in mind the task entrusted to the Council
by Article 24. As the report of the Rapporteur of Committee II/I shows, the
principle whereby the Assembly must admit new Members on the recommendation
of the Security Council only, is derived from the idea that "the purpose of
the Charter is primarily to provide security against a repetition of the
present war and that, therefore, the Security Council should assume the
initial responsibility of suggesting new participating States". (Doc. 666,
II/I/26/I (a), San Francisco Conference, Vol. VII, p. 451.)
How could the Council fulfil its duties if it was strictly limited by the
criteria mentioned in Article 4, paragraph I? Such a limitation on the
Council would prevent it from declaring against the admission of a State
even if it thought that such admission would have serious consequences for
general international stability and consequently for the maintenance of
peace. Such a case may well arise even though the candidate fulfils all the
conditions of Article 4; for the admission of a State might create tension
with other Members or non Members of the Organization, and might give rise
to expressions of mistrust, discontent and injustice ; whilst, on the other
hand, its admission might be held undesirable from the point of view of
harmonious co operation within the Organization. These are essentially
political considerations that could not be, and are not, limited by Article
4. Evidently the authors of the Charter could not impose such extensive
duties on the Council (Article 24) and, at the same time, limit its powers
in such a way as to prevent it from carrying out properly its main task.
In the supreme interests of the Organization, the members of the Council
must therefore have a wide discretion. They can and must take account of
every kind of political considerations, even if these do not fall within
Article 4.
(2) It has already been said that nothing obliges a Member to give a reason
for its vote. The vote is by "yes" or "no", unless the Member abstains.
Consequently, at the moment of voting, there is no possibility of imposing a
condition. A condition could only be expressed in the discussion that takes
place in the competent organs before the vote. The documents placed before
the Court show that, during these discussions, Members have adopted very
[p103] different positions, according to the political requirements of the
case under discussion. Not only have some delegations adopted differing
points of view, but the same delegations have often put forward one argument
in one case, and a contrary argument in another.
There is nothing surprising in this. It is a question of policy. The Council
is an essentially political organ and not a Court of Justice. How then could
freedom of speech in this political organ be limited ? If a Member was not
legally entitled to take account of political considerations in the
statements made by him on the subject of the vote which takes place at the
end of discussions, these latter would become particularly difficult. The
result would be to encourage hypocrisy and mental reservations. Moreover,
discussion and political reasons of any kind may no doubt decide a vote, but
they do not necessarily do so. It is possible that a Member may state
certain views and that then, convinced by the arguments of others, or for a
political reason, he may, when voting, be influenced by considerations quite
different from those he had put forward during the discussion.
Consequently, it is quite impossible to determine the reasons on which a
Member's vote depends, for they are the subject of a mental process that
cannot be controlled. As a result, seeing that there is no rule of law
obliging a Member to give reasons for his vote, he is juridically entitled
to vote according to his own opinion, subject to what follows:
If the exercise of the right to vote is left to the discretion of Members of
the Council and of the Assembly, it must be emphasized that this cannot upon
any pretext authorize them to act arbi-trarily. Any organization, and
especially that of the United Nations, is, as a general principle, founded
on good faith. This rule, which all States have bound themselves to observe
when signing the Charter (Article 2/2), requires that a Member shall fulfil
its obligations in accordance with the purposes of and in the interests of
the Organization. This rule is assumed to have been observed, failing proof
to the contrary.
The work of a Court of Justice involves primarily the application of rules
of law to concrete cases. It follows that the first task of the Court is to
consider what are the concrete cases from which the application for an
opinion arises. That this should be the Court's procedure is the more
evident from the fact that concrete examples have been drawn to its
attention in the documents supplied by the Secretariat of the United
Nations. These documents show that there was only one case in which a Member
expressly made his vote dependent on the realization of a condition. It was
in regard to the admission of ex enemy States. I shall come to this later.
In no other case was there a question of any conditions to [p104] which a
vote was made subject, but rather of various elements of appreciation such
as might all, moreover, come within the class of qualities required in
Article 4, paragraph I.
In the light of the foregoing, I arrive at the following reply to the first
part, of the question :
A Member of the United Nations, which is called upon to vote, is juridically
entitled to make its vote depend on conditions not expressly provided by
paragraph I of Article 4 of the Charter. This right is derived from:
(1) the supreme duty of the Security Council, i.e. the main responsibility
for the maintenance of peace and security. This responsibility rests in
particular on the permanent Members of the Council, and the exercise of
their political prerogatives is not limited by Article 4, but only by the
legal obligation to act in good faith and in the interest of the
Organization ;
(2) the discretionary right to vote without giving reasons for the vote, and
(3) the nature of Article 4 of the Charter, which cannot be considered as
exhaustive, but on the contrary as only indicating the minimum conditions,
without the fulfilment of which a State cannot be admitted.
IV.
I now come to the second part of the question put to the Court, which is, in
substance, whether a Member may subject its affirmative vote on the
admission of a State to the condition that other States be admitted together
with that State.
As I have already said, there is nothing in common between the conditions in
Article 4 and the condition that several States should be admitted together.
Article 4 only concerns the qualities required of a State for admission,
whilst the candidate State has no influence on the result of an application
made to other Members of the Security Council. The condition of simultaneous
admission has nothing to do with Article 4 of the Charter, but is a
political matter for States.
The Court has decided to give an answer to this question, and to give it in
an abstract way. This leads me to make the following remarks :
Although the second question is an abstract one, it must evidently relate to
the only concrete case of this nature that has arisen, namely to the
discussion on the admission of ex enemy States. This discussion took place
in the Security Council during the meetings referred to in the recitals to
the General Assembly's Resolution of [p105] November 17th, 1947.
Consequently, however abstract the Court's reply may be, it will necessarily
be understood as relating to this case and will be interpreted as an
indirect judgment on the action of certain members of the Council. Moreover,
this interpretation will be given in complete ignorance of the exceptional
circumstances of the case and of the arguments then put forward.
It follows, in my view, that, having decided to give an answer, the Court
should have done so by dealing with the concrete case from which the
question arose; especially as there are legal elements in that case which,
when separated from the political elements, would permit of the giving of a
reply based on law. The facts were as follows:
A permanent member of the Security Council had declared that he would only
vote for the admission of two ex enemy States on condition that the other
members of the Council would undertake to vote for the admission of the
three other ex enemy States. This was truly a condition, the only one that
has ever been laid down; a previous proposal made by another permanent
member, for the simultaneous admission of several other States, contained no
condition and, in particular, did not make the admission of one group depend
on the admission of the other. The admission of the ex enemy States is thus
the only case to which the request for an opinion can refer.
The declaration of the member in question was founded on legal arguments
drawn from the Declaration of Potsdam and from the peace treaties with the
five ex enemy States. These instruments have been invoked on the ground that
they contain an obligation by the Signatory Powers to support the
application for admission, and it has been maintained that the Potsdam
Declaration makes a very clear distinction between the admission of the five
ex enemy States and all other States.
The Court has not been asked to consider or interpret the provisions in
question, but I consider that the above facts cannot be disregarded; for the
whole question depends on them. The following considerations will serve to
show the importance of these facts:
(1) They show that the question relates to a special unprecedented case, and
one that cannot recur; it follows that the question raised by this case
cannot be treated in the abstract; and
(2) they are decisive on the point whether, in the particular case, the
member who asked for the simultaneous admission of all ex enemy States was
legally entitled to introduce this condition into the debate, and to make
his vote depend on it. [p106]
The permanent member in question, rightly or wrongly, maintained its
interpretation of the Declaration of Potsdam and of the peace treaties. For
that member, these instruments involved an obligation on signatory States to
support applications for admission. The Declaration of Potsdam and the
treaties of peace were subsequent to the Charter, and as such an obligation
does not conflict with those arising from the Charter (Art. 103 of Charter),
the member in question was entitled to rely on them.
It goes without saying that the co signatories of these instruments were
free to accept this interpretation or not. What is decisive, for the
question before the Court, is not the correctness of the interpretation made
by that State, but the right of that State to rely on it, in the same way as
the other signatory States were entitled to rely on their interpretation.
This right is guaranteed by the principle of the sovereign equality of
States which underlies the organization of the United Nations (Art. 2 of
Charter). It follows that the member in question was juridically entitled to
maintain its interpretation and therefore to call for the simultaneous
admission of the ex enemy States.
(Signed) ZORIČIČ. [p107]
DISSENTING OPINION BY M. KRYLOV.
[Translation.]
To my regret, I am unable for the following reasons to concur in the opinion
of the Court.
I.
I. From a legal standpoint, the drafting of the question put to the Court
gives rise to some criticism : the word "conditions" is used in this
question with different meanings ; the words "consent" and "vote" are used,
but in fact the reasons for a vote are meant. These errors of drafting are
characteristic. They reveal the secret of the origin of the Resolution of
November 17th, 1947. It was not framed in a legal atmosphere.
Appearances are deceptive: though framed in a legal form, it is a question
put with a definitely political purpose; it is political in conception ;
though abstract in form, it is a concrete question which expressly refers in
one of its paragraphs to the "exchange of views which has taken place in the
Security Council at its 204th, 205th and 206th Meetings"; though impersonal
in form, it is a question designed to censure the reasons given by a
permanent member of the Security Council.
It has been suggested that the request couched in abstract terms is not of a
political character, that the Court is not called upon to consider the
reasons which may underly the request and, lastly, that the Court is bound
only to envisage the question in the abstract form in which it has been
presented by the General Assembly.
I cannot share this view. I hold that it is impossible to eliminate the
political elements from the question put to the Court and only to consider
it as presented in an abstract form. The reply to the question should refer
to concrete cases which have been considered by the Security Council and
General Assembly. The legal criteria should be examined in the light of the
political grounds on which, in actual fact, the attitude of Members of the
United Nations was based.
Clearly to indicate the political character of the question put to the
Court, it will suffice to quote the Resolution of the General Assembly dated
November 17th, 1947, which contains a passage which is quite conclusive on
the point. The Resolution says in particular: "The General Assembly ....
decides to recommend to the permanent members of the Security Council to
consult with a view [p108] to reaching agreement on the admission to
membership of the applicants which have not been recommended hitherto, and
to submit their conclusions to the Security Council."
"Reaching agreement" regarding the admission of States to membership in the
United Nations means: to settle the dispute by political means within the
Security Council itself, a political organ of the United Nations. On this
organ rests the primary responsibility for the maintenance of international
peace and security (Art. 24 of the Charter). This organ bears the initial
responsibility as regards the admission of new Members (U.N.C.I.O., Vol. 8,
p. 461).
In view of the fact that the admission of new Members is dependent on
political decisions of the Security Council and General Assembly, I should
have preferred that the Court should have abstained from giving a reply
which might, in the nature of things, be utilized in the political dispute
which has been going on for a year and a half in the Security Council and
General Assembly and have refused to give an advisory opinion.
2. My view would seem to be borne out by the fact that, during the eighteen
years of its activities, the Permanent Court of Inter national Justice was
never once asked to give an advisory opinion regarding any article of the
Covenant of the League of Nations in abstracto. It may be noted, by way of
example, that in three of its opinions, the Permanent Court had to deal with
articles of the Covenant, but in each of these opinions—(1) Nationality
Decrees in Tunis and Morocco; (2) the Status of Eastern Carelia, and (3) the
Frontier between Turkey and Iraq—the Court was considering concrete
situations. The interpretation of Articles 5, 15 and 17 of the Covenant was
in close connexion, in all these opinions, with the concrete situation.
It is easy to explain why this was so. Quite obviously, it was not desired
to involve the Permanent Court in political disputes.
I must even go further: not once did the Permanent Court adjudge any case ex
cequo et bono, that is to say, it always kept within the limits of existing
law, of strict legality.
In the present case, the question put to the Court is couched in abstract
form. The Court's opinion will have a quasi legislative effect, and this, as
will be shown later (para. 3), is in no way desirable. From the standpoint
under consideration, the practice of the Permanent Court should be taken
into account by the Court: the interpretation of the Charter in abstracto is
not desirable.
3. Whereas the Permanent Court, in interpreting the Covenant of the League
of Nations, sought to consider concrete situations, or existing disputes,
the Court, in the present case, is about to [109] make a pronouncement, with
quasi legislative effect, concerning decisions to be taken by the political
organs of the United Nations. The Court's answer will amount to a definition
of the competence of the organs of the United Nations which decide the
question of the admission of a new State to membership in the United
Nations. In practice, the terms of opinions of the Permanent Court have
always been complied with. But the Permanent Court never had before it a
question of such importance formulated in abstracto. In the present case, it
may be asked whether the political organs of the United Nations, acting
under conditions which cannot even be foreseen at the present time, might
not one day depart from the precepts of the Court's opinion. International
justice must keep within the framework of international law and must not
encroach on the political sphere.
I would refer, in this connexion, to the last article by Professor Manley
Hudson, a former judge of the Permanent Court, in the first number of the
American Journal of International Law for 1948. This distinguished author
says in this article (pp. 15 -19) that it must be borne in mind that in some
cases it may be a disservice to the Court to urge that it shall deal with
disputes in which legal relations between the parties are subordinated to
political considerations involved. Speaking of requests for advisory
opinions, Professor Hudson suggests that caution must be exercised in cases
where a request for an opinion has to do with questions relating to the
powers of organs of the United Nations. I think as he does that in this case
the Charter should be interpreted rather by the political organs themselves
than by opinions of the Court. The Court's activity must not be
"artificially stimulated".
Thus I conclude that it would be better if the Court were to assert its
right not to answer the question put, and to state its grounds for so doing
(Article 65 of the Statute says : "the Court may give an advisory
opinion....").
II.
1. Since the Court has decided to give an opinion and is content to answer
the question in the artificially narrow form in which it has been framed, I
find myself obliged to avail myself of my right to extend the scope of the
question and to express my opinion on the legal import of Article 4 of the
Charter.
In the first place, I substantially concur in the arguments put forward in
the dissenting opinion of M. Basdevant, Vice President of the Court, and of
Judges Winiarski, McNair and Read, and in that of Judge Zoricic. I would,
however, in my opinion, emphasize the following ideas which I feel it my
duty to formulate and, above all, analyse the practice of the Security
[p110] Council and General Assembly with regard to the admission of new
Members.
2.. In its opinion, the Court declares positively that the criteria
prescribed in paragraph I of Article 4 of the Charter are subjected to the
judgment of the Organization, i.e., of the Security Council and General
Assembly. But, as I shall show later, a State which, in the judgment of the
Organization, possesses all these qualifications is not ipso facto entitled
to be admitted to membership in the United Nations. The political organs of
the United Nations must still decide whether or not they wish to recommend
and to admit it. Their decision is a discretionary one. Accordingly, these
criteria are not exhaustive. This clearly appears from the text of Article 4
and from the preparatory work.
The authoritative texts of Article 4 of the Charter show some differences of
wording. The English text, and the Russian text, which closely follows it,
say that membership in the United Nations is open to States which have the
qualifications required by Article 4. The French, Spanish and Chinese FN1
texts better express the general principle of the constitution of the United
Nations, a principle which is not purely and simply that of universality
("peuvent devenir Membres des Nations unies....") ("Podran ser Miembros de
las Naciones Unidas...."). It is true that all (applicant) States may become
Members of the United Nations {'peuvent devenir Membres des Nations unies
tous États...." candidats) but only if they satisfy the criteria of Article
4 of the Charter. Certainly the five texts all express the same idea,
namely, that the qualifications required by Article 4 are necessary in order
to become a Member of the United Nations. But these texts by no means imply
that the presence of these requisite qualifications necessarily leads to the
admission of the applicant State to the United Nations.
---------------------------------------------------------------------------------------------------------------------
FN1 Kindly communicated by Judge Hsu Mo.
---------------------------------------------------------------------------------------------------------------------
3. The same conclusion emerges from an analysis of the report of the
Rapporteur of Committee I/2 of the San Francisco Conference. According to
this report (U.N.C.I.O., Vol. 7, p. 315), the admission of a new Member must
be submitted for examination by the Organization. The Committee did not
enumerate the elements to be considered in this examination. It only
mentioned the main criteria. This means that the enumeration of criteria in
Article 4 of the Charter is not exhaustive. In forming a judgment as to the
desirability of admitting a new Member—that is to say, in exercising its
discretionary powers with regard to such admission—the Organization may be
guided by considerations "of any nature", i.e., not merely legal but also
political considerations. This demonstrates the true legal meaning of
paragraph I of Article 4 of the Charter. [p111]
4. The affirmation that the qualifications required by Article 4 of the
Charter are exhaustive in character, implies that Members of the United
Nations taking part in the vote in the Security Council and General Assembly
must be exclusively guided by considerations which can be "connected" with
the five conditions enumerated in Article 4. But this is definitely contrary
to the interpretation given by the Report of Committee I/2.
Again, this requirement does not to my mind appear to serve any purpose. A
member of the United Nations, called upon to vote on the admission of a
State, is legally entitled to vote according to its own appreciation of the
situation. It is not obliged to give reasons for its vote ; it may vote
without giving any reasons and such a vote is not subject to any control.
What purpose then would be served by a censure of the reasons invoked by
Member States in the Security Council or General Assembly ? The
recommendation to the effect that the real reasons for a vote must be
"connected" with the allegedly exhaustive criteria of Article 4 might result
in hypocritical declarations being made by some Members of the United
Nations Organization.
5. The Court, in its opinion, declares that it does not 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". The opinion states that in this
connexion no relevant political factor is excluded. This means that, in a
concrete case, Members have a right of discretionary and political
appreciation. But in that case, one is forced to the, in my view, inevitable
conclusion that this right of discretionary appreciation is implicitly
sanctioned by Article 4 of the Charter and that the enumeration of criteria
in that Article is not exhaustive. Otherwise, this right of appreciation
would have no basis.
I have already said that I accept the interpretation quoted above, given by
the Report of Committee I/2. I hold, therefore, that the Charter allows
every Member of the Organization the right to appreciate whether a
particular State can be admitted to membership, such appreciation to be
based on the presence or absence of the qualifications required by Article 4
of the Charter and on considerations of a political nature.
III.
I have sought to elucidate the general import of Article 4 of the Charter on
the basis of an analysis of the text of this Article and of the preparatory
work.
It still remains for me to consider the practice followed by the political
organs of the United Nations with regard to the admission of new Members.
[p112]
In the course of the discussions in the Security Council, at its 204th,
205th and 206th Meetings, as well as at meetings of the General Assembly and
of its First Commission, both political and legal considerations have been
put forward and a variety of arguments have been adduced to show that some
particular State should or should not be admitted to membership in the
United Nations.
It is not my intention to follow out all the legal arguments advanced in the
course of these numerous meetings of which the records have been placed by
the Secretary General of the United Nations at the Court's disposal. I shall
confine myself to considering a few of them, by way of example, in order to
clarify my standpoint.
1. The delegate of the U.S.S.R. stated in the Security Council that two
applicant States, Portugal and Eire, not having taken part in the second
world war alongside the democratic countries, could not be admitted to
membership in the United Nations. The Soviet delegate's argument was legally
based on the criterion of "a peace loving State"— or, in French "État
pacifique"— (I would emphasize that the French word pacifique has a more
passive sense, whereas the English word "peace loving", as also the Russian,
Spanish —amantes de la paz—and Chinese FN1 equivalents possess a more active
sense). Relying more particularly on the latter texts and declaring that the
two States above mentioned had made no effort to combat the Nazi danger, the
delegate for the U.S.S.R. was legally justified, at that moment, in
maintaining his point of view which was that these States were not "peace
loving". The argument of the U.S.S.R. delegate regarding the value as a
criterion of participation in the world war has met with the support of the
eminent jurist of Panama M. Ricardo Alfaro. As regards the concrete question
of the admission of Portugal, the attitude of the delegate of the U.S.S.R.
was frequently shared by other States, such as Australia, India and the
Philippines.
---------------------------------------------------------------------------------------------------------------------
FN1 Kindly communicated by Judge Hsu Mo
---------------------------------------------------------------------------------------------------------------------
2. The same delegate, in refusing membership of the Organiz ation to these
States, added, as a supplementary argument, that they did not maintain
diplomatic relations with the U.S.S.R. Was he legally entitled to do this ?
His argument was based on the legal precepts of the Charter. The latter, in
paragraph 2 of Article I, says that one of the purposes of the United
Nations is to develop friendly relations among nations. The absence of
diplomatic relations, i.e., normal bonds between States, due to a decision
deliberately and obstinately taken by an applicant State, is surely
inconsistent with the criteria stated in Article 4 of the Charter,
particularly that which provides that an applicant [p113] State must be
"willing" to carry out the principles and purposes of the Charter.
It may be noted that the other members of the Security Council (China, the
U.S.A., the United Kingdom and others) also took into account—rightly or
wrongly in concreto—the fact of the absence of diplomatic relations.
3. At the 92nd Meeting of the General Assembly on September 30th, 1947, the
delegate of Afghanistan voted against the admission of Pakistan, on account,
he declared, of a frontier dispute between these two States. Later, on
October 20th, 1947, at the 96th Meeting, this delegate said that he no
longer maintained his opposition, because the dispute was about to be
settled through diplomatic channels. It would seem that such an argument is
warranted, because the attitude of the State voting against admission may be
justified by the precepts of Article 4 of the Charter. A similar attitude
was adopted by the French delegate in the Security Council in the case of
the admission of Siam.
4. I would also cite by way of example the arguments put forward in the
Security Council which do not seem to me to accord with the general
principles of the Charter. I hold that a Member of the United Nations is not
justified in basing his opposition to the admission of a particular State on
arguments which relate to matters falling essentially within the domestic
jurisdiction of the applicant State. The United Nations Organization has
been created by the original Member States which differ in extent,
population, armed strength, political institutions, social conditions, etc.
The clause in paragraph 7 of Article 2 of the Charter (domestic
jurisdiction) in principle excludes questions appertaining to the domestic
jurisdiction of a State from the jurisdiction of the Organization itself.
This rule must, I hold, also be applied in connexion with the admission of
new Members. In support of my view, I may refer to the attitude adopted by
many delegations, including that of the U.S.A., at the San Francisco
Conference, not only in Committee I/I, which dealt with the purposes and
principles of the Charter, but also in Committee II/3 which studied economic
and social questions and questions concerning fundamental human rights.
5. The admission of Austria and Transjordan encountered objections on the
part of several States—the U.S.S.R., Australia, Canada, India, Pakistan and
others. The question was raised whether, at the time of their application,
these States were really independent States. The expression of such "doubts"
is not contrary to Article 4 of the Charter, for that is a consideration
which would merely lead to a postponement of the vote. [p114]
6. Finally, I come to the question of the vote which has — wrongly, I
think—been described as a "conditional vote". A vote may be affirmative or
negative ; or a Member may also abstain from voting. But a "conditional
vote" is meaningless in law. Obviously, as has already been said, the
question put by the General Assembly refers not to the "vote" but to the
reasons for it.
The concrete case envisaged by the question put to the Court is the
admission of five ex enemy States which was discussed by the Security
Council. The delegates of the majority of Members of the Council wished to
admit two ex enemy States (Italy and Finland) and were unwilling to admit
three others (Bulgaria, Hungary and Roumania). The U.S.S.R. delegate in the
Security Council postponed his affirmative vote in favour of Italy and
Finland because he was not sure of the admission of the three others to
membership. Was this delegate legally justified in so doing ? The majority
of the delegates in the Security Council, in interpreting Article 4, held
that that Article did not warrant such a proceeding and even forbade it. It
would not seem that there is anything to justify such an interpretation. No
doubt, the application of each State must be considered separately on its
own merits. But it is possible to imagine several applicant States being
admitted together and such a vote is by no means precluded by Article 4 of
the Charter.
Such a proceeding is especially warranted when it is a question of admitting
States whose applications are presented in identical circumstances; for
instance, in a case where several newly created States succeed to a State
which has ceased to exist.
In the particular case, the applications for admission to the United Nations
of the five ex enemy States were considered to be worthy of support, after
the conclusion of the Peace Treaties of Paris of 1947, not only by the
participants in the Conference of Potsdam of 1945 but also by all parties to
these peace treaties. All these applications should have been treated in the
same man-ner, that is to say, that all these applicant States should have
been admitted simultaneously. As I have stated above (under No. 4), there
was no warrant for an unjustified discrimination between the five candidates
on the ground of their domestic regime. In this specific, concrete, and even
unique case—having regard to the Potsdam Agreement and to the above
mentioned peace treaties—the suggestion made by the delegate of the Soviet
Union was not contrary to Article 4 of the Charter, and could not be
regarded as illegal. As I have stated, a block vote is not forbidden by the
Charter and accordingly it is legal; it is a legitimate proceeding.
Accordingly, there is no need for me to consider whether the clause approved
at Potsdam and repeated in the Peace Treaties of 1947 is inconsistent with
Article 103 of the Charter. [p115]
IV
It follows that the right of appreciation, sanctioned by Article 4 of the
Charter, may be exercised by Members of the United Nations in various
circumstances in connexion with the admission of new Members. It goes
without saying that, in utilizing this right of appreciation in respect of
an applicant State, each Member of the Organization must be guided by legal
and political considerations which accord with the Purposes and Principles
of the United Nations and that it must exercise its right in all good faith.
Accordingly, I give the following reply to the question (that is to say to
two parts of the question) put by the General Assembly:
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 entitled to declare, during the
discussion and before the vote, that it takes into account in voting : (1)
the legal criteria pre-scribed in paragraph I of the said Article, and (2)
the political considerations consistent with the Purposes and Principles of
the United Nations.
(Signed) S. KRYLOV. [p116]
ANNEX.
LIST OF DOCUMENTS SUBMITTED TO THE COURT.
.
I.—DOCUMENTS SUBMITTED IN THE COURSE OF THE WRITTEN PROCEEDINGS BY THE
SECRETARY-GENERAL OF THE UNITED NATIONS.
1. Provisional Rules of Procedure of the Security Council (S/96/ Rev. 3.
January 27th, 1948)FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
2. Rules of Procedure of the General Assembly (A/520. December 12th, 1947)
FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
3. Rules governing the admission of new Members (Report of the Committee of
the General Assembly) (A/384, p. 4, September 12th, 1947) FN1
---------------------------------------------------------------------------------------------------------------------FN1
These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
4. Report by the Executive Committee to the Preparatory Commission of the
United Nations (PC/EX/113/Rev. 1. November 12th, 1945) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
5. Report of the Preparatory Commission of the United Nations (PC/20.
December 23rd, 1945) FN1 .
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
6. Records of the Security Council Committee of Experts Meetings concerning
the Rules on the Admission of new Members FN1:
1946. S/Procedure 91.
„ 91, Corr. 1.
„ 92.
„ 93.
„ 93, Corr. 1.
„ 94.
„ 99.
„ 99, Corr. 1.
1947 S/C.1/SR.96.
„ 96, Corr. 1.
„ 101
„ 102
„ 103
„ 104
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
7. Records of the meetings of the Joint Committees appointed bythe General
Assembly and the Security Council on Rulesgoverning the admission of new
Members FN2: [p117]
---------------------------------------------------------------------------------------------------------------------
FN2 These documents arrived at the Registry, partly on February 10th, partly
on March 20th, 1948.
---------------------------------------------------------------------------------------------------------------------
A/AC.II/ SR.I.
„ SR.I, Corr. 1.
„ SR.2.
„ SR.2, Rev. 1.
„ SR.3.
„ SR.3, Rev. 1.
„ SR.4.
„ SR.5.
„ SR.6.
„ SR.7.
„ SR.8.
„ SR.8, Corr.
„ SR.9.
„ SR.10.
„ SR.II.
8. Report of the Security Council Committee on the admission of new Members,
1946 (Security Council Official Records, First Year, Second Series,
Supplement No. 4, p. 53) FN1
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
9. Report of the Security Council to the General Assembly on the admission
of new Members, 1946 (A/108. October 15th, 1946) FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
10. Records of the Security Council Meetings concerning the admis-
sion of new Members, 1946.
Security Council Official Records, First Year, Second Series FN2:
No. 1.
„ 2.
„ 3.
„ 4.
„ 5.
„ 18.
„ 23.
„ 24.
„ 25.
Security Council Journal, First year, No. 35.
-------------------------------------------------------------------------------------------------------------------
FN2 These documents arrived at the Registry, partly on February 10th, partly
on March 20th, 1948.
-------------------------------------------------------------------------------------------------------------------
11. 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 FN2:
Journal 22, Suppl. No. 1—A/C.I/22
„ 24 „ „ 1—A/C.I/31.
„ 25 „ „ 1—A/C.I/37.
„ 26 „ „ 3-A/C.3/43.
„ 27 „ „ 1—A/C.I/39.
„ 28 „ „ 1—A/C.I/41.
„ 29 „ A—A/P.V.47.
„ 31 „ „ 1—A/C.I/45.
„ 32 „ —A/C.I/47.
„ 37 „ A—A/P.V.48.
„ 38 „ A—A/P.V.49.
-----------------------------------------------------------------------------------------------------------------
FN2 These documents arrived at the Registry, partly on February 10th, partly
on March 20th, 1948.
---------------------------------------------------------------------------------------------------------------------
[p118]
12. Records of the Plenary Meetings of the Second Part of the First Session
of the General Assembly concerning the admission of new Members, 1946 FN1.
(Journal No. 66, Supplement A—A/P.V. 67.)
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
13.Report of the Security Council Committee on the admission of new Members,
1947. Security Council Official Records, Second Year, Special Supplement No.
3, Lake Success, New York, 1947 FN1
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
14.Reports of the Security Council to the General Assembly on the admission
of new Members, 1947 (A/406. October 9th, 1947.— A/515. November 22nd, 1947)
FN1.
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
15.Records of the Security Council Meetings concerning the admission of new
Members, 1947.
Security Council Official Records, Second Year, No. 38 FN2 :
S/P.V.136. S/P.V.186.
S/P.V.137. S/P.V.190.
S/P.V.151. S/P.V.197.
S/P.V.152. S/P.V.204.
S/P.V.154. S/P.V.205.
S/P.V.161. S/P.V.206.
S/P.V.168. S/P.V.221.
S/P.V.178. S/P.V.222.
---------------------------------------------------------------------------------------------------------------------
FN2 These documents arrived at the Registry, partly on February 10th, partly
on March 20th, 1948.
---------------------------------------------------------------------------------------------------------------------
16. Records of the First Committee Meetings of the Second Regular Session of
the General Assembly concerning the admission of new Members, 1947 FN2:
A/C.I/SR. 59.
„ 59, Corr. 1.
„ 59, Corr. 2.
„ 97.
„ 98.
„ 99.
„ 100.
„ 101.
„ 102.
„ 102, Corr1.
„ 102, Corr2.
„ 103.
---------------------------------------------------------------------------------------------------------------------
FN2 These documents arrived at the Registry, partly on February 10th, partly
on March 20th, 1948.
---------------------------------------------------------------------------------------------------------------------
17.Records of the meetings of the Second Regular Session of the General
Assembly concerning the admission of new Members, 1947 FN1:
A/P.V.83. A/P.V.89.
„ 84. „ 90.
„ 85. „ 92.
„ 86. „ 96.
„ 87. „ 117.
„ 88. „ 118.
---------------------------------------------------------------------------------------------------------------------
FN1 These documents arrived at the Registry on February 10th, 1948.
---------------------------------------------------------------------------------------------------------------------
[p119]
II.—Documents referred to during the oral proceedings.
A.—List of annexes mentioned in the statement by Mr. Kerno, Assistant
Secretary-General of the United Nations :
Annex 1. 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).
Annex 3. Ibidem. Remarks by the representative of Australia (pp. 74, 93).
Annex 4. Ibidem. Remarks by the representative of the U.S.S.R. (pp. 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 (pp. 14-20).
Annex 8. Ibidem. 101st Meeting (Nov. 8th, 1947). Remarks by the
representative of the United Kingdom (pp. 103, 104-110).
Annex 9. Ibidem. 102nd Meeting (Nov. 10th, 1947). Remarks by the
representative of Greece (p. 6).
Annex 10. Ibidem. 103rd Meeting (Nov. 10th, 1947). Remarks by the
representative of El Salvador (p. 41).
Annex 11. 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,
representative of the Belgian Government :
Extract from the book by Dr. Dietrich Schindler, Die Schieds-gerichtbarkeit
seit 1914 (Entwicklung und heutiger Stand).
Extract from the book by H. Lauterpacht, The Function of Law in the
International Community.
United Nations. General Assembly. Doc. A/474 (Nov. 13th, 1947).
Idem. Doc. A/P.V.113 (Nov. 14th, 1947).
Idem. Doc. A/459 (Nov.IIth, 1947).
Idem. Doc. A/459, Corr. 1 (Nov. 13th, 1947). |
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