1 20 League of Nations O.J. 506 (1939).

2 See Gross, , Was the Soviet Union Expelled from the League of Nations?, 39 AJIL 35, 42 (1945)Google Scholar. For a contrary view, Feinberg, Nathan, L’Exclusion d’un Membre de la Société des Nations et le principe de l’unanimité, in Studies in International Law. With Special Reference to the Arabisrael Conflict 3 (Jerusalem 1979)Google Scholar. See also Sohn, , Expulsion or Forced Withdrawal from an International Organization, 77 Harv. L. Rev. 1381, 1387–91 (1964)Google Scholar.

3 Sohn, supra note 2, at 1390.

4 2 Walters, F., A History of the League of Nations 804–05 (1952)Google Scholar.

5 Sohn, supra note 2, at 1409–16; see pp. 1412–16 concerning the forced withdrawal of South Africa from the ILO in 1964.

6 Scope of “credentials” in rule 27 of the rules of procedure of the General Assembly: statement by the Legal Counsel to the President of the General Assembly at his request, UN Doc. A/8160 (Nov. 11, 1970), reprinted in 1970 UN Juridical Y.B. 169. The relevant part of the opinion is as follows:

Should the General Assembly, where there is no question of rival claimants, reject credentials satisfying the requirements of rule 27 for the purpose of excluding a Member State from participation in its meetings, this would have the effect of suspending a Member State from the exercise of the rights and privileges of membership in a manner not foreseen by the Charter. . . . The participation in meetings of the General Assembly is quite clearly one of the important rights and privileges of membership. Suspension of this right through the rejection of credentials would not satisfy the foregoing requirements and would therefore be contrary to the Charter.

Id. at 170–71, para. 6. The Legal Counsel distinguished the case of Hungary from 1956 to 1963 and the case of South Africa in 1970, as in both cases the representation of these members was seated and exercised rights of membership. Id. at 170, para 5. He also distinguished the cases of the Congo in 1960, Yemen in 1961, and China. Ibid., para. 4.

7 UN Doc. A/PV.2281, at 76 (Nov. 12, 1974).

8 Id. at 71–86. The scenario for this meeting of the Assembly might have been written by Professor Sohn. Using an “imaginative” interpretation, he suggested that exclusion of a recalcitrant member might be achieved through a challenge of the credentials on the ground that the government was not a “true” but a totalitarian government or a foreign puppet. This method could be applied even to expel a permanent member of the Security Council, if necessary under the 1950 Uniting for Peace Resolution of the General Assembly. Sohn, supra note 2, at 1422–23 & n.202. However, the device to invoke a presidential ruling in order to override the Charter was invented by the United States and applied in the question of Laos. See Gross, , The Question of Laos and the Double Veto in the Security Council, 54 AJIL 118, 127 (1960)Google Scholar.

9 Supra note 6.

10 Article 9 reads: “ 1 . The General Assembly shall consist of all the Members of the United Nations. 2. Each Member shall have not more than five representatives in the General Assembly.”

11 Concerning the legality of the “suspension” of South Africa, see Jhabvala, , The’ Credentials Approach to Representation Questions in the U.N. General Assembly, 7 CAL. W. Int’l L.J. 615 (1977)Google Scholar; and Ciobanu, , Credentials of Delegations and Representation of Member States at the United Nations, 25 Int’l & Comp. L.Q. 351 (1976)CrossRefGoogle Scholar. Jhabvala concluded, at p. 637: “the decision on South Africa was legal.” Ciobanu concluded, at p. 380:

[T]he General Assembly properly exercised its power to inquire into the representation of South Africa in the United Nations, and that its decision of September 30, 1974, to reject the credentials of the delegation appointed by the Government of that State was valid. The same cannot be said of its interpretation of that decision, at the 2281 st meeting on November 12 of the same year. . . .

See also McWhinney, , Credentials of State Delegations to the U.N. General Assembly: A New Approach to Effectuation of Self-Determination for Southern Africa, 3 Hastings Const. L.Q. 19 (1976)Google Scholar. Approving the ruling concerning South Africa, McWhinney said:

In considering the issue of representation, the General Assembly and its Credentials Committee may properly be guided by new international law principles, such as the principle of the self-determination of peoples, developed or extended since the adoption of the Charter, and also, inter alia, by relevant World Court opinions, such as the 1971 ruling on the Namibia question.

Id. at 34 (footnotes omitted). It is beyond the scope of this paper to examine the reasoning that led Jhabvala, Ciobanu, and McWhinney to their respective conclusions.

12 On that occasion, speaking for his Government, Baron von Wechmar referred to the opinion of the Legal Counsel of Nov. 11, 1970, supra note 6, and declared:

In the opinion of my Government, the credentials of the South African delegation met the requirements of article 27 of the rules of procedure; therefore there were and continue to be no legal grounds for excluding the South African delegation from the General Assembly. . . . We can only hope that this dangerous precedent will remain the only case of its kind, and that the Organization will find its way back to the strict observance of its rules.

UN Doc. A/PV. 2281, at 93–95 (Nov. 12, 1974). As a matter of fact, he not only repeated the dangerous precedent but made it worse by declaring even before the Credentials Committee had made its report on South Africa’s credentials: “I shall not recognize requests for participation in this debate until the General Assembly receives a report from the Credentials Committee.” UN Doc. A/35/PV.102 (Mar. 2, 1981). The request to which he referred was apparently made by South Africa under Rule 71 of the Assembly’s Rules of Procedure: “During the discussion of any matter, a representative may rise to a point of order, and the point of order shall be immediately decided by the President in accordance with the rules of procedure.” This incident is summarized in 18 UN Monthly Chron., April 1981, at 7.

15 The discussion at the 102d plenary meeting is summarized in 18 UN Monthly Chron., April 1981, at 5–8. The President’s explanation is on p. 7. Among those who opposed the Assembly action were the Netherlands on behalf of the 10 members of the EEC; Canada; Austria; Turkey; Iceland on behalf of Denmark, Finland, Norway, and Sweden; the United Kingdom; the Federal Republic of Germany; New Zealand; France; Chile; Australia; and the United States. The United States was reported as saying:

On so fundamental a question as the rights of membership, the passing of time had not given the Assembly a better legal basis for doing in 1981 what it did improperly in 1974. No one has shown that South Africa’s credentials failed to meet the requirements of the rules of procedure. To refuse to consider those credentials as required by the rules was to use the guise of credentials to try to accomplish a suspension that lay beyond the powers of the General Assembly.

Id. at 6. In the view of the Federal Republic of Germany, “[i]t was inconsistent with the provisions of the Charter to evaluate the legitimacy and policy of Governments which issued such credentials.”Id. at 8. France “felt that an organization which did not respect its fundamental laws rendered itself vulnerable.” Ibid. Chile

was sorry that it had to stray from the majority of the Latin American countries and its friends from Asia and Africa, but it firmly believed that the sole hope for respect for the small and medium-sized countries was support for the rules of law—and that was the principle which guided Chile in its vote.

Ibid.

14 1974 Digest of United States Practice in International Law 45. For a rebuttal of the alleged danger to monuments, see statement of the American Jewish Congress quoted in Kirgis, F. Jr., International Organizations in their Legal Setting 550 (1977)Google Scholar. Concerning the exclusion of Israel from the European Group, it was reported that “[according to one UNESCO official, ‘the Arab and Socialist-bloc countries did a full time job’ in gathering their support, and non-left-leaning African delegations had voiced resentment about anti-Israeli pressures, ‘with much talk of blackmail,’ “ N.Y. Times, Nov. 22, 1974, §1, at 6, quoted in Lang, UNESCO and Israel, 16 HARV. Int’l L.J. 676, 681 (1975).

15 1974 DIGEST, supra note 14, at 47.

16 1976 Digest of United States Practice in International Law 49–50. President Ford on Dec. 29, 1976 informed the Congress “that sufficient progress had been made at the recently concluded UNESCO General Conference toward reversing the anti-Israel actions of the 1974 conference to justify a resumption of U.S. funding.” Id. at 50. It may be noted that the United States National Commission for UNESCO, in a statement approved on Dec. 5, 1974, opposed the withholding of funds for UNESCO. 1974 Digest, supra note 14, at 46–47.

17 Alford, , The Prospective Withdrawal of the United States from the International Labor Organization: Rationales and Implications, 17 Harv. Int’l L.J. 623, 630 (1976)Google Scholar.

18 1975 Digest of United States Practice in International Law 70–73.

19 F. Kirgis, supra note 14, at 207. A particularly ugly incident of politicization of the ILO by the United States occurred in 1970 in connection with the appointment of a Soviet citizen as Assistant Director-General. See Schwebel, , The United States Assaults the I.L.O., 65 AJIL 136 (1971)CrossRefGoogle Scholar. On that occasion the U.S. Congress voted to block payment of assessment due to the ILO.

20 Alford, supra note 17, at 630–31. At the same time, the General Conference also discarded standard procedure in condemning Chile for its labor practices.

21 1977 Digest of United States Practice in International Law 39–40.

22 Nash, Contemporary Practice of the United States Relating to International Law, 75 AJIL 363 (1981). In announcing on November 13, 1980 that the United States would rejoin the ILO, President Carter stated:

Since [the U.S. withdrawal], a majority of the ILO members—governments, workers, and employers—have successfully joined together to return the ILO to its original purposes. Through their efforts, steps have been taken to strengthen the independence of employer and worker delegates, undertake investigations of human rights violations in a number of countries, including the Soviet Union, reinforce the principle of due process, and generally reduce the level of politicization in the ILO.

Ibid.

23 UN Doc. S/RES/487 (1981), reprinted in 75 AJIL 724–25 (1981).

24 UN Press Release WS/1043, Oct. 2, 1981, at 6–7.

25 Article XIX(B) reads:

A member which has persistently violated the provisions of this Statute or of any agreement entered by it pursuant to this Statute may be suspended from the exercise of the privileges and rights of membership by the General Conference acting by a two-thirds majority of the members present and voting upon recommendation by the Board of Governors.

8 UST 1093, TIAS No. 3873, 276 UNTS 3.

26 IAEA Doc. GC(XXVI)/OR.245, para. 5 (Oct. 4, 1982) (Tunisia).

27 Id., para. 19 (Zambia).

28 Id., para. 12.

29 Id., para. 9.

30 Id., para. 28.

31 Id., para. 27.

32 Id., paras. 8, 10, 11, 13, 14.

33 Id., para. 41. The opposing votes were cast mainly by Western states; the abstentions came from a cross-section of groups other than the socialist and Arab blocs.

34 Id., para. 42.

35 See IAEA Doc. GC(XXIII) (Dec. 16, 1979).

36 IAEA Doc. GC(XXVI)/OR.246, para. 16 (Oct. 13, 1982).

37 The text of Article V(A) reads: “A General Conference consisting of all members shall meet in regular annual session. . . .” Paragraph B reads: “At such sessions, each member shall be represented by one delegate who may be accompanied by alternates and by advisers.. . .” IAEA Statute, supra note 25. There is no provision in the Statute for the expulsion of a member.

38 IAEA Doc. GC(XXVI)/OR.246, supra note 36, paras. 17, 18.

39 Id., para. 25.

40 Id., para. 26.

41 Id., para. 27 (emphasis supplied). The legal expert apparently could not distinguish between registering a vote before or after the announcement of the result of the ballot. The delegate of the Netherlands asked the Director of the Legal Division twice “up to what time a delegation could still have its vote recorded after the closure of a ballot,” id., paras. 30, 38, only to be told after the Iraqi amendment had been adopted that his question “was purely academic.” Id., para. 39. Changes in a recorded vote are often requested and noted in the record of the meeting, but no changes in the announced result of the ballot are made. Bailey, S., The General Assembly of the United Nations: A Study of Procedure and Practice 151 (rev. ed. 1964)Google Scholar. In connection with the principles of international law regarding defects of form invoked by Mr. Herron, the Judgment (Jurisdiction) of Aug. 30, 1924 in the case of the Mavrommatis Palestine Concessions (Greece v. Great Britain) comes to mind. The Permanent Court of International Justice, referring to defects in the Greek Application, declared: “The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law.” 1924 PCIJ, ser. A, No. 2, at 34. This statement was quoted with approval by the ICJ in the Case Concerning the Northern Cameroons, 1963 ICJ Rep. 15, 28 (Judgment of Dec. 2). In his separate opinion in the Barcelona Traction case, Judge Wellington Koo put the point more explicitly, saying: “International law, being primarily based upon the general principles of law and justice, is unfettered by technicalities and formalistic considerations which are often given importance in municipal law.” Barcelona Traction, Light & Power Co., Ltd. (Preliminary Objections), 1964 ICJ Rep. 6, 60–61, para. 32 (Judgment of July 24). However, it is not clear how those statements could relate to voting in the IAEA. See also the statement by the United States delegate, infra note 48, at 9.

42 IAEA Doc. GC(XXVI)/OR.246, supra note 36, para. 28. See also the observation of the British delegate, id., para. 44, and of the French delegate, id., para. 49.

43 Id., para. 31.

44 Id., paras. 32, 36.

45 Id., para. 37.

46 Id., para. 43. The total vote on the ruling was 86, and 85 on the amended resolution. Mexico abstained on the ruling but voted for the resolution. Ecuador and Venezuela abstained on the ruling but voted against the resolution. Sri Lanka abstained on the ruling and did not participate in the vote on the resolution.

47 Id., para. 44. The delegate of Italy also declared that he “was obliged to leave the meeting.” Id., para. 48.

48 Id., para. 45. Views critical of the proceedings were also expressed by Japan, Canada, France, Australia, Denmark, Ireland, Greece, and Chile. Id., paras. 46, 47, 49, 50, 51, 53, 54, 55. It may be noted that McWhinney would not have approved of the President’s ruling on the case. For “infringements of the Charter or rejections of General Assembly or Security Council resolutions, not directly related to the issue of the representativeness of the delegation seeking accreditation, do not, prima facie, seem to bear upon decisions of the General Assembly and its Credentials Committee in this context.” McWhinney, supra note 11, at 34.

49 See Miller, , Head of World Arms Agency Sees Peril in U.S. Curbs, N.Y. Times, Oct. 26, 1982, at A3 Google Scholar. The dues amount to $8.5 million, about 26% of the budget. In the same article, Dr. Hans Blix, Director General of the Agency, was reported as saying that a prolonged reassessment “could cripple” the operations of the Agency. Mr. Gerard C. Smith, a former representative of the United States, stated on his own behalf and on behalf of three other former representatives to the IAEA that they opposed withdrawal from the Agency and refusal (after the current suspension) to pay the assessed contributions. On the other hand, they deplored “the patently illegal action” taken at the General Conference. Id. at A29.

50 See Schwebel, supra note 19, at 140 n.26. The reservation was made by Ambassador Goldberg on Aug. 16, 1965 in the UN Special Committee on Peacekeeping Operations. He made it

crystal clear that if any Member can insist on making an exception to the principle of collective financial responsibility with respect to certain activities of the Organization, the United States reserves the same option to make exceptions if, in our view, strong and compelling reasons exist for doing so. There can be no double standard among the Members of the Organization.

UN Doc. A/AC.121/PV.15, at 8–10 (1965), reprinted in 60 AJIL 106 (1966).

51 See Nossiter, , U.N. Chief Chides U.S. on Funds, N.Y. Times, Jan. 4, 1983, at A2 Google Scholar. According to Nossiter, the United States owes the UN $612,000 “because Congress has forbidden the use of any funds for the Palestine Liberation Organization and the South-West Africa People’s Organization.”

52 For a sample of views, see Maynes, , American Policies in the United Nations, in U.S. Policy in International Institutions: Defining Reasonable Options in an Unreasonable World 403 (Finger, S. M. & Harbert, J. R. eds. 1978)Google Scholar; Ad Hoc Group on United States Policy Toward the United Nations, A New U.S. Policy Toward the United Nations, in id. at 449; and Klutznick, American Goals in a Changing United Nations, in id. at 464. See also Lyons, , Baldwin, , & McNemar, , The Politicization Issue in the UN Specialized Agencies, in The Changing UN: Options for the United States 81 (Kay, David A. ed. 1977)Google Scholar.

53 Sohn, , Enabling the United States to Contest “Illegal” United Nations Acts, 69 AJIL 852 (1975)CrossRefGoogle Scholar; the trial balloon launched by Professor Sohn was promptly deflated by Ciobanu, Dan in Could the Use of the Contentious Procedure of the International Court offustice Have Any Significant Impact upon the Practice of the United Nations? A Reply to Professor Louis B. Sohn, 70 AJIL 328 (1976)Google Scholar.

54 1946–1947 ICJ Y.B. 217–18.

55 See South West Africa Cases, Second Phase, 1966 ICJ Rep. 6, 42, para. 73, and 51, para. 99 (Judgment of July 18).

56 Since the United States walked out from the General Conference of the IAEA, President Reagan signed on Dec. 21, 1982, Pub. L. No. 97–377, which provides in section 159 for suspension of funds to the Agency until its Board of Governors certifies that Israel may fully participate in the Agency. In his address to the General Assembly on Sept. 30, 1982, Secretary of State Shultz referred to the IAEA and said: “As our action last week in Vienna should make clear, we will not accept attempts to politicize—and, therefore, emasculate—such vital institutions.” Dep’t State Bull., No. 2068, November 1982, at 1, 9.

57 The writer has been informed that the United States reaction in the IAEA also had a sobering effect on the International Telecommunication Union, whose Plenipotentiary Conference, in October 1982, was faced with similar maneuvers concerning Israel and which were thereupon promptly shelved.

58 Nossiter, , Iran Challenges Israel’s Right to Seat at UN, N.Y. Times, Oct. 26, 1982, at A15 Google Scholar.

59 It may be recalled that like Secretary Shultz, Resolution 214 (adopted by the U.S. Senate on July 18, 1975) refers to expulsion rather than to illegal suspension via the credentials route. The resolution states that the Senate

looks with disfavor and concern over persistent attempts by some nations among the so-called nonalined nations of the Third World to expel Israel from membership in the United Nations; and . . . [t]hat if Israel is expelled from the United Nations the Senate will review all present United States commitments to the Third World nations involved in the expulsion, and will consider seriously the implication of continued membership in the United Nations under such circumstances.

1975 Digest of United States Practice in International Law 65. At the 1975 session of the General Assembly, Libya, Saudi Arabia, and Syria opposed unsuccessfully the acceptance of Israel’s credentials. Id. at 66; and UN Doc. A/10270 (Sept. 29, 1975).

60 Nossiter, supra note 58. UN Doc. A/37/563 (Oct. 22, 1982); six more members added their signatures, UN Doc. A/37/563/Add.l (Oct. 25, 1982). For the Israeli response, see UN Doc. A/37/565 (Oct. 25, 1982).

61 The same text appeared first in GA Res. ES-9/1 of Feb. 5, 1982. By virtue of Resolution 273 (III), the General Assembly, acting upon a recommendation of the Security Council, admitted Israel to membership in the United Nations. In the Preamble, Resolution 273 (III) refers to resolutions of Nov. 29, 1947 and Dec. 11, 1948. The former, numbered 181 (III), provides for the “Future Government of Palestine,” and the latter, numbered 194 (III), is entitled “Palestine— Progress Report of the United States Mediator.” The reference to these resolutions resulted from a lengthy discussion in the Ad Hoc Political Committee in the course of which delegates asked the representative of Israel, Aubrey Eban, to clarify the future policy of Israel concerning refugees, the status of Jerusalem, and other matters. Some delegates may have desired to obtain commitments. However, such efforts turned out to be without result other than the incorporation of references to the resolutions in question. See 3 UN GAOR, pt. II, Ad Hoc Political Comm. SR, at 179–360 (1949). See also Admission of a State to the United Nations, 1948 ICJ Rep. 57 (Advisory Opinion of May 28). The Court found that the conditions prescribed in Article 4 of the Charter are of an “exhaustive character.” Id. at 64.

62 UN Press Release GA/6787, Jan. 4, 1983, at 56–58.

63 Id. at 62.

64 In this context it may be worthwhile to recall the reply by the United States to Resolution 2925 (XXVII) of Nov. 29, 1973, inviting member states to make proposals “for enhancing the effectiveness of the decisions and resolutions adopted by United Nations organs.” The United States suggested that

the General Assembly might consider modifying its rules so that adoption of resolutions would require an appropriate majority of all votes cast, counting those who abstain as present and voting. If this change were made, Assembly resolutions would better express the views of a majority of the Assembly, rather than as now on occasion, of a minority whose views prevailed because of a large number of abstentions.

1973 Digest of United States Practice in International Law 52–53 (emphasis in original). At the next session of the Assembly the representative of the United States said on Nov. 29, 1973 that

recent voting patterns within the United Nations lead us to consider whether or not bloc voting is now too often being used in a manner which raises serious questions for the future effectiveness of this organization. One concern is with the inclination of many U.N. members to support one-sided or simplistic resolutions on complicated or contentious issues, resolutions which do not necessarily represent the weight of world opinion, and which, worse still, have not the slightest chance of being effectively implemented. The United Nations is not an instrument for wish fulfillment. Rather it should be a catalyst for effective action on world problems.

Id. at 54.

65 See Gross, , The United Nations and the United States, in Völkerrecht und Rechtsphilosophie 403, 406 (Fischer, P., Köck, H. F., & Verdross, A. eds. 1980)Google Scholar (footnote omitted).

66 This amendment refers to the provision in Pub. L. No. 97–377 in note 56 supra.

67 Dep’t of State Press Guidance, Feb. 22, 1983, at 1–2.

68 IAEA Doc. GOV/OR.600, at 3 (March 14, 1983).

69 Id. at 11–12.

70 Id. at 12–14.