1 The discussion that follows focuses on the General Assembly. The analysis would apply equally, however, to the other organs of the United Nations and to the specialized agencies, participation in which is one of the rights and privileges of membership in the United Nations. Thus, when the question first arose of which of two rival delegations’ credentials to accept, UNESCO asked the General Assembly to “establish guiding principles to be followed so that uniform action may be taken by their various organs and by the Specialized Agencies.” See note 24 infra and accompanying text.

While a comparative study of other international organizations would be interesting, it would have no direct bearing on the legitimacy of the use of the accreditation process to exclude member states from the United Nations, since that must be evaluated in light of the provisions of the UN Charter, particularly Articles 5 and 6 of the Charter, which give the Security Council veto power on questions of suspension and exclusion of member states.

2 Rule 28 of the General Assembly Rules of Procedure provides: “A Credentials Committee shall be appointed at the beginning of each session. . . . It shall examine the credentials of representatives and report without delay.” Rules of Procedure of the General Assembly, UN Doc. A/52/Rev.12 (1974).

3 See UN Press Release GA/6670, Oct. 6, 1982. The vote and recommendation followed a debate on whether the credentials of Democratic Kampuchea or of the People’s Republic of Kampuchea should be approved, and a challenge to the credentials of Afghanistan and Chile. There was no challenge to the credentials of Israel in the Credentials Committee. See First Report of the Credentials Committee for the 37th Session of the General Assembly, UN Doc. A/37/ 543 (Oct. 14, 1982).

4 UN Doc. A/37/563 (Oct. 22, 1982).

5 Id. at 1.

6 Id. at 2.

7 UN Doc. A/37/L.9 (Oct. 25, 1982).

A similar resolution was introduced by Iran and Libya at the current session. The General Assembly voted 79 to 43, with 19 abstentions, to take no action on the resolution. N.Y. Times, Oct. 21, 1983, at A11, col. 1.

8 UN Doc. A/37/PV.45, at 2 (Oct. 28, 1982).

9 Id. at 3–5. The only Arab states that voted with Iran, against the motion, were Algeria and the Libyan Arab Jamahiriya. Egypt voted for the motion. Most of the Arab states abstained. Following the vote, the representative of Yemen stated that the Arab Group was meeting elsewhere when the vote was taken and “that had he been there he would have voted against the motion.” Id. at 22. The delegate of Syria made a similar statement. Id. at 23.

10 Even if the Iranian amendment had been considered and adopted by the General Assembly, it would not necessarily have resulted in the exclusion of the representative of Israel from participation in the General Assembly. South Africa—the only state whose credentials the General Assembly voted not to accept—continued to participate in the work of the General Assembly from 1970 to 1974 under a ruling by Edvard Hambro of Norway, the President of the Assembly in 1970, followed by successive Presidents, that the rejection of its representatives’ credentials did not bar it from participation. 25 UN GAOR (1901st plen. mtg.) at 25, UN Doc. A/PV.1901 (1970). It was the ruling of the Algerian representative, who presided over the General Assembly at its 29th session in 1974, that resulted in the exclusion of South Africa. See infra notes 29–31 and accompanying text. The ensuing discussion assumes, however, that the intent of the Iranian amendment was to exclude Israel from the United Nations.

11 The original (Dumbarton Oaks) draft of the Charter made no provision for expulsion at all, and a number of states were opposed to such a provision since the goal was for universal membership in the United Nations. The Soviet Union insisted on a provision for expulsion, however, and after considerable discussion, the provision contained in Article 6 was adopted. See Sohn, , Expulsion or Forced Withdrawal from an International Organization, 77 Harv. L. Rev. 1381, 1398–1400(1964)Google Scholar; Russell, R., A History of the United Nations Charter 397 (1958)Google Scholar.

12 These rules were adopted in accordance with Article 21 of the Charter, which provides that the “General Assembly shall adopt its own rules of procedure.”

13 GA Rules of Procedure, supra note 2.

14 25 UN GAOR Annexes (Agenda Item 3) at 1 n . l , UN Doc. A/8160 (1970).

15 Id. at 2.

16 The situation first arose with respect to China in 1950. For a discussion of that case, see Briggs, , Chinese Representation in the United Nations, 6 Int’l Org. 192 (1952)CrossRefGoogle Scholar. See also Higgins, R., The Development of International Law Through the Political Organs of the United Nations 152–58 (1963)Google Scholar; Kelsen, H., The Law of the United Nations 941–44 (1964)Google Scholar. Other situations that involve rival claimants include the Congo in 1960 (see R. Higgins, supra, at 162– 64; T. Franck, Legal Aspects of the U.N. Action in the Congo (1963)) and Kampuchea {see supra note 3); see also General Assembly debate, Sept. 21, 1979, UN Doc. A/34/PV.3 (1979).

17 The other possibilities are (1) not to accept the credentials of either delegation, or (2) to accept the credentials of both. The first alternative would have the effect of excluding the member state from participating in the General Assembly. The second would give the state more than one vote, which would be contrary to Article 27(1) of the Charter. Cf. H. Kelsen, supra note 16, at 945 (dealing with a similar problem in the Security Council).

18 UNESCO was the first to confront the problem. See 5 UN GAOR Annexes (Agenda Item 61) at 4–5, UN Doc. A/1344 (1950).

19 5 UN SCOR Supp. (Jan.-May 1950) at 18, UN Doc. S/1466 (1950).

20 5 UN GAOR Annexes (Agenda Item 61) at 13, UN Doc. A/1578 (1950).

21 5 UN GAOR Annexes (Agenda Item 61) at 2, UN Doc. A/1308 (1950).

22 GA Res. 396 (1950), 5 UN GAOR Supp. (No. 20) at 24–25, UN Doc. A/1775 (1951).

23 Report of Ad Hoc Political Committee, UN Doc. A/1528 (1950).

24 UN Doc. A/1344, supra note 18, at 5 (emphasis added).

25 UN Doc. S/1466, supra note 19, at 22–23 (emphasis added).

26 GA Res. 396, supra note 22, at 24–25 (emphasis added). A number of more specific guidelines had been suggested, but the committee was unable to agree on any of them. See Report of Ad Hoc Committee, supra note 23.

27 See R. Higgins, supra note 16, at 158–59.

28 See McWhinney, , Credentials of State Delegations to the U.N. General Assembly: A New Approach to Effectuation of Self-Determination for Southern Africa, 3 Hast. Const. L.Q. 19, 30 (1976)Google Scholar.

29 From 1956 to 1962, the General Assembly took “no action” with respect to the credentials of Hungary. See R. Higgins, supra note 16, at 158–59. Similarly, up to 1965 it dealt with the challenge to the credentials of South Africa by deciding “to take no decision on the credentials submitted on behalf of the representatives of South Africa.” 20 UN GAOR (1407th plen. mtg.) at 10, 15–16, UN Doc. A/PV.1407 (1965). Since Rule 29 of the General Assembly Rules of Procedure provides that “[a]ny representative to whose admission a Member has made objection shall be seated provisionally with the same rights as other representatives until the Credentials Committee has reported and the General Assembly has given its decision,” the decision to take no action had the effect of permitting Hungary and South Africa to continue participating in the United Nations. At its 25th session in 1970, the General Assembly for the first time rejected the credentials of South Africa. Edvard Hambro of Norway, who presided at that session, interpreted the rejection of its credentials as a “very strong condemnation of South Africa,” 25 UN GAOR (1901st plen. mtg.) at 25, UN Doc. A/PV.1901 (1970), but not as barring it from participation in the work of the Assembly.

30 25 UN GAOR Annexes (Agenda Item 3), at 3, supra note 14. Quite clearly, the point made by Legal Counsel is that rejection of credentials satisfying Rule 27 for the purpose of excluding a member state would violate the Charter because it would be inconsistent with the Security Council’s veto power under Article 5. Thus, exclusion by the General Assembly by a rejection of credentials could not be legalized by amending Rule 27 to authorize the General Assembly to take such action. Moreover, Rule 27 was adopted by the General Assembly pursuant to Article 21 of the Charter, authorizing the General Assembly to adopt its own “rules of procedure.” Judgments about the legitimacy of the government issuing credentials manifestly involve more than “rules of procedure.”

31 29 UN GAOR (2281st plen. mtg.) at 76, UN Doc. A/PV.2281 (1974). The ruling was confirmed by the General Assembly. The vote was 91 in favor, 22 against and 19 abstentions. Id. at 86.

32 See text at note 30 supra. It may be argued that excluding a state from the General Assembly is a lesser sanction than expulsion or suspension from the United Nations, and therefore may be imposed by the General Assembly itself. This argument is untenable for two reasons. First, while barring a state from participating in the work of the General Assembly may be distinguished from suspension in theory, there is very little difference in practice. The General Assembly is the major organ of the United Nations and, at least for states not members of the Security Council, probably the most important one. As the memorandum of Legal Counsel stated, “participation in meetings of the General Assembly is quite clearly one of the important rights and privileges of membership” and denial of that right “would have the effect of suspending a member state.” Second, the Charter sets out very clearly the circumstances under which the rights of membership may be curtailed, the extent to which they may be curtailed in each of those circumstances and the procedure for doing so. It provides three distinct sanctions: expulsion, suspension and loss of voting rights. The ultimate sanction of expulsion may be imposed on a member that has “persistently violated” the principles of the Charter (Article 6). The lesser sanction of suspension may be imposed on a member “against which preventive or enforcement action has been taken by the Security Council” (Article 5). Loss of the right to vote, a still lesser sanction, is imposed for arrears in payment (Article 19). The first two may be imposed by a two-thirds vote of the General Assembly upon the recommendation of the Security Council; the right to vote is lost if the amount by which a state is in arrears in its payments exceeds its dues for the preceding two years, but this sanction may be waived by the General Assembly if it concludes that the failure to pay is due to conditions beyond the member’s control. Thus, the Charter provides three levels of sanctions and specifies when, how and by whom they may be imposed. Had the drafters intended a fourth sanction, exclusion from the General Assembly, they would have specified the circumstances under which and the procedure by which it could be imposed.

33 A resolution to expel South Africa from the United Nations was introduced in the Security Council. It received a majority but failed to pass because three of the permanent members, the United States, Great Britain and France, voted against it. The states that opposed the expulsion of South Africa argued that the United Nations would be in a better position to influence the actions of South Africa in the future if it remained in the Organization. Those that favored expulsion argued that a state that has persistently violated the principles of the Charter should not be permitted to remain as a member. See 29 UN GAOR Annexes (Agenda Item 3), UN Doc. A/9779 (1974). The debate on whether to expel South Africa reflects a tension inherent in the Charter, which, on the one hand, aims at universal membership, and on the other, provides for the expulsion of states that violate the principles of the Charter; and it parallels the debate between the Soviet Union and the West at the time Article 6 was adopted. See supra note 11.

34 Competence of the General Assembly for the Admission of a State to the United Nations, 1950 ICJ Rep. 4, 7 (Advisory Opinion of March 3).

35 Id. at 9.

36 See McWhinney, supra note 28; Jhabvala, , The Credentials Approach to Representation in the U.N. General Assembly, 7 Cal. W. Int’l L.J. 615 (1977)Google Scholar; Note, The General Assembly 29th Session: The Decredentialization of South Africa, 16 Harv. Int’l L.J. 576 (1975).

37 Jhabvala, supra note 36, at 630.

38 Id.

39 Id. at 633.

40 Id.

41 If a determination on whether a state satisfies the criteria for membership were to be made as part of the accreditation process, regardless of the existence of rival claimants, the General Assembly would have to make the decision prior to each session with respect to each member. Jhabvala apparently recognizes the problem with the approach he urges, since he argues for the need to adopt rules in this area “if governments are to have any assurance that their representative capacity will not be challenged each time they are involved in an international dispute or run afoul of their neighbors.” Jhabvala, supra note 36, at 638. A de novo decision on whether a member state is willing and able to carry out the obligations imposed by the Charter would clearly be improper. See, e.g., R. Higgins, supra note 16, at 158. “A member cannot be called upon to show proof of its ability and willingness to carry out the obligation of the Charter at every stage.” See also the statement of Judge Lachs, made when he was the Polish representative to the United Nations, quoted infra note 56.

42 See text at note 25 supra.

43 While the test suggested by Secretary-General Lie was not adopted by the General Assembly and has not been followed in practice, both the Communist bloc and the West having argued on different occasions for rejecting credentials emanating from a government that satisfied the criteria he suggested, the Assembly has not adopted any other test providing meaningful objective criteria for determining which delegation’s credentials should be accepted when there are rival claimants, not has one emerged in practice. Distasteful as it is to adopt a test that would require acceptance of credentials emanating from a government that has achieved effective control through force and violence, that is true of many states whose delegations’ credentials are not being challenged. Adoption of the criteria urged by Lie would at least have the merit of preventing transformation of accreditation, which should be a procedural process, into a highly controversial political process.

44 See, e.g., Sohn, supra note 11, at 1420ff.; McWhinney, supra note 28.

45 See McWhinney, supra note 28.

46 Id. at 30.

47 Id. at 31.

48 Id. at 32 (emphasis in original).

49 See Ciobanu, , Credentials of Delegations and Representation of Member States at the United Nations, 25 Int’l & Comp. L.Q. 351, 375–80 (1976)Google Scholar.

50 That a decision by the General Assembly alone regarding membership would be contrary to the fundamental structure of the Charter is clear from the ICJ Advisory Opinion on Admission of a-State to the United Nations (see supra notes 34–35 and accompanying text), and from the history of the negotiations preceding the adoption of Article 6 (see supra note 11). This was explicitly recognized by Legal Counsel in his opinion on the matter (see supra notes 14–15 and accompanying text), and was at least implicitly recognized by the General Assembly itself both in Resolution 396 (V) on representation, which is by its terms limited to “whenever more than one authority claims to be the government entitled to represent a state,” and in its action with respect to South Africa from 1970 to 1974, when Edvard Hambro and successive Assembly Presidents interpreted the failure to accept South Africa’s credentials as not barring it from participating in the Assembly’s work.

51 In arguing for the rejection of the credentials of South Africa, some states referred to General Assembly Resolution 3151G (XXVII), which declared that “the South African régime has no right to represent the people of South Africa and . . . the liberation movements recognized by the Organization of African Unity are the authentic representatives of the overwhelming majority of the South African people.” 28 UN GAOR Supp. (No. 30) at 33, UN Doc. A/9030 (1973), cited in 29 UN GAOR Annexes (Agenda Item 3), supra note 33, at 3. They may have intended to argue thereby that in the case of South Africa, too, the determination of representation by the General Assembly was justified by the existence of rival claimants. There was, however, in fact no rival delegation claiming the right to represent South Africa.

52 Ciobanu, supra note 49, at 367. He further states:

[N]ot only was there significant dissent in the General Assembly when Resolution 396 (V) was adopted, but in all individual cases that followed the adoption of this Resolution, the argument was made that the Assembly and its Credentials Committee had no power under the Charter to inquire into the matter of representation.

Id. at 367 n.74.

53 See Note, supra note 36, at 588. The authors stress that “[i]n assessing the precedential value of the Assembly’s suspension of South Africa it is important to remember that South Africa is in a number of ways a special case.” Id. at 586. It has “institutionalized a system of differentiation and classification based on race” and has continued to administer Namibia in defiance of resolutions of the General Assembly and Security Council and of decisions of the International Court of Justice. Id. at 587.

54 See 29 UN SCOR (1807th plen. mtg.) at 26–31, UN Doc. S/PV.1807 (1974).

55 See 29 UN GAOR (2281st plen. mtg.), supra note 31, at 2–10 (Tanzania), 11–16 (Tunisia), 16–17 (Syria), 18–22 (Guyana), 22–25 (Yugoslavia), 31–35 (India), 43–52 (Philippines), 52–57 (USSR), 57–62 (Nigeria), 63–65 (China), 67–70 (Iraq), 71 (Kenya), and 98–100 (Nepal).

Most of the states that considered the Assembly action to be illegal also expressed their condemnation of apartheid. Id. at 25–30 (United Kingdom), 36–37 (United States), 37–42 (France), 66 (Guatemala, abstaining), 87 (Finland), 87–91 (France, speaking for the European Economic Community), 91–92 (Canada), 93–96 (Federal Republic of Germany), 96–97 (Australia), 97–98 (New Zealand), and 101 (Nicaragua and Austria).

56 Id. at 52–55. When the question of representation was before the Ad Hoc Political Committee in 1950, the Communist bloc opposed the Cuban resolution, which specified the factors to be considered by the General Assembly in determining which of two rival governments had the right to represent the state. Judge Lachs, then the representative of Poland, argued that the Assembly “merely had to decide as to the proper order of the credentials of representatives of governments exercising authority in their countries” and that it did not have “the right to decide as to the legitimacy of the representation of member states.” R. Higgins, supra note 16, at 148 (emphasis added).

The danger in the General Assembly’s taking action contrary to the Charter, even in a situation that is sui generis, is that it will be viewed as a precedent on a subsequent occasion. In opposing the exclusion of South Africa, the representative of Nicaragua warned, “[T]his decision sets a precedent which endangers the existence of our organization and violates the principles of the U.N. Charter and the rules of procedure of the General Assembly.” 29 UN GAOR (2281st plen. mtg.), supra note 31, at 101. The Arab states are apparently trying to bring Israel within the scope of the action on South Africa by resolutions stating, e.g., that “Zionism is Racism,” GA Res. 3379, 30 UN GAOR Supp. (No. 34) at 83–84, UN Doc. A/10034 (1975); and that Israel is not a “peace-loving state,” GA Res. Es.A/9/1 (9th Emergency Sess. Feb. 9, 1982).

57 This was also the position of the U.S. Congress (see H. Con. Res. 322 and S. Con. Res. 68, 97th Cong., 2d Sess. (1982)), and of the American Bar Association (ABA). A resolution of the ABA provides in pertinent part:

The American Bar Association endorses the legal interpretations by the United States and other member states that the United Nations Charter, including Article 6, does not permit the suspension or expulsion, directly or indirectly, of any United Nations member state except upon a duly approved recommendation of the Security Council.

Resolved at ABA Annual Meeting, August 1975, reaffirmed June 1981. See also original text of H. Con. Res. 322, in U.S. Participation in the United Nations (1982): Hearings and Markup on H. Con. Res. 322 Before the Subcomms. on Int’l Operations, Europe and the Middle East and on Human Rights and Int’l Orgs, of the House Comm. on Foreign Affairs, 97th Cong., 2d Sess. 135–36 (1982). At the hearings on Resolution 322 Professor Richard Gardner stated: “But the use of the credentials process to deny Israel its rights in the General Assembly is a clear violation of international Law.” Id. at 42.

The appearance of a delegation presenting credentials issued by an authority purporting to represent the Palestinians in the disputed territories would not make the case one in which the General Assembly’s authority to decide the question of representation might be justified by the necessity to decide between rival claimants. As stated earlier, the necessity and concomitant authority to decide which delegation’s credentials to accept arises where two delegations present credentials emanating from different authorities, each claiming to be the government of the same member state. Whatever the rights of the Palestinians to the disputed territories, the right of Israel to exist as an independent state is beyond question. That right was affirmed by the United Nations in 1948, when it adopted the partition plan, GA Res. 181, UN Doc. A/519 (Jan, 8, 1948), and has been repeatedly reaffirmed by the United Nations since then, even in resolutions such as Security Council Resolution 242, 22 UN SCOR (1382d mtg.) at 8–9 (1967), providing for Israeli withdrawal from “territories occupied in the recent conflicts.” If a Palestinian state is established in the territories occupied by Israel in the 1967 war, separate and apart from Jordan (which occupies the major portion of the territory that originally formed the Palestine Mandate and the majority of whose citizens are Palestinians), that state will, of course, have the right to apply for membership in the United Nations in accordance with the Charter, as any other state. But a delegation presenting credentials emanating from an authority purporting to be the government of the Palestinians in those territories would clearly not be entitled to represent the same state as the delegation representing Israel. Thus, the question of deciding which government’s credentials to accept does not arise.

58 The United States declared that if Israel was excluded it would withdraw and would not pay its share of UN expenses, which constitutes a substantial percentage of the United Nations budget; it was not clear that if put to a vote the amendment would pass; and some Arab states believed that the exclusion of Israel at this time would be harmful to the image they were seeking to project. See N.Y. Times, Oct. 13, 1982, at A10, col. 1; Oct. 14, 1982, at A15, cols. 1–6; and Oct. 17, 1982, a A1, cols. 1–4.

At the congressional hearings on U.S. participation in the United Nations, William J. vandenHeuvel, a former U.S. Ambassador to the United Nations stated:

I can assure you there is no member of the United Nations who is not aware that were a successful effort made to exclude Israel from the General Assembly or any other agency of the UN, that the automatic and immediate response of the United States would be to suspend its participation in that body. While serving as United States Ambassador to the United Nations in Europe, I had to face such a challenge to the membership of Israel and Egypt in the World Health Organization. We made it clear what the United States’ response would be . . . and because of the firmness of our position there was never a serious challenge offered. . . .

House Hearings, supra note 56, at 303.