1 It should be noted that, with regard to the International Conference of the Red Cross and Red Crescent, this article discusses only the participation of states (or state-like entities) in this forum. It does not deal with the representation and participation of National Societies, as there are very specific rules that govern the recognition and admission of National Societies into the Conference.
2 The Movement's members, termed ‘components’ in its statutes, are the National Red Cross and Red Crescent Societies, the International Committee of the Red Cross (ICRC), and the International Federation of Red Cross and Red Crescent Societies (‘International Federation’). Statutes of the International Red Cross Red Crescent Movement (Movement Statutes), Art. 1(1).
3 I.e. humanity, impartiality, neutrality, independence, voluntary service, unity, universality.
4 Such as the International Labour Organization (ILO), founded in 1919 on the premise that universal, lasting peace can only be established if it is based on decent treatment of working people; and the Permanent Court of Arbitration, established in 1899 to record ‘the principles of equity and right on which are based the security of States and the welfare of peoples’. First Hague Convention for the Pacific Settlement of International Disputes, 29 July 1899, Preamble, available at http://avalon.law.yale.edu/19th_century/hague01.asp (last visited 19 February 2010).
6 Chittharanjan Felix Amerasinghe, Principles of the Institutional Law of International Organisations, Cambridge University Press, Cambridge, 2005, p. 105.
7 Henry G. Schermers, ‘International organisations’, in Mohammed Bedjaoui and Federico Mayor, International Law: Achievements and Prospects, Martinus Nijhoff, The Hague, 1991, p. 69.
8 For example, the International Olympic Committee (IOC), the International Association of Federation Football (FIFA), the International Organization for Standardization (ISO), and the International Union for Conservation of Nature (IUCN). Apart from the International Conference of the Red Cross and Red Crescent, the IUCN is a rare example of an organization that brings together governmental and non-governmental members on an equal basis – see IUCN Statutes, Art. 1, available at http://cmsdata.iucn.org/downloads/statutes_en.pdf (last visited 11 January 2010).
9 Daniel Dormoy, ‘Recent developments regarding the law on participation in international organisations’, in Karel Wellens (ed.), International Law: Theory and Practice – Essays in Honour of Eric Suy, Martinus Nijhoff, The Hague, 1998, p. 323.
10 I.e. a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. See Montevideo Convention on the Rights and Duties of States, 1933, Art. 1, available at http://avalon.law.yale.edu/20th_century/intam03.asp (last visited 23 June 2009). See also Opinion No. 1 of the Badinter Arbitration Committee, which restates the requirement of ‘government’ as ‘organised political authority’, and adds that a state is characterized by sovereignty: Art. 1(b), reproduced in Pellet, Alain, ‘The opinions of the Badinter Arbitration Committee: a second breath for the self-determination of peoples’, in European Journal of International Law, Vol. 3, No. 1, 1992, p. 182.
11 UN Charter, Art. 3(1) and 4(1).
13 UN specialized agencies will automatically admit UN members that ratify the agency's founding statute and undertake the attendant obligations, without need for further approval by members of the agency. See e.g. Universal Postal Union (UPU) Constitution, Art. 11(1); International Atomic Energy Agency (IAEA) Statute, Art. 4(a); ILO Constitution, Art. 1(3); World Health Organization (WHO) Constitution, Art. 4; UN Educational, Scientific and Cultural Organization (UNESCO) Constitution, Art. 2(1); International Telecommunication Union (ITU) Constitution, Art. 2(b); Convention on the International Maritime Organization (IMO), Art. 6; World Meteorological Organization (WMO) Convention, Art. 3(b); UN Industrial Development Organization (UNIDO) Constitution, Art. 3(a). The Statutes of the UN World Tourism Organization (UNWTO), however, require even a UN member's candidature to be approved by a two-thirds majority in the General Assembly (which must also amount to a majority of UNWTO's full members) – see Art. 5(1)–(2).
14 Switzerland, for instance, was a member of all the UN's specialized agencies long before it became a member of the UN itself in 2002.
15 See e.g. Food and Agricultural Organization (FAO) Constitution, Art 2(2); ITU Constitution, Art. 2(c) and 8(1); UNESCO Constitution, Art. 2(2) and 4(A)(1); World Intellectual Property Organization (WIPO) Convention, Art. 5 and 6; Chicago Convention on Civil Aviation, Art. 48(b) (in respect of the International Civil Aviation Authority – ICAO); Convention on the IMO, Art. 4; UNIDO Constitution, Art. 3(b); UPU Constitution, Art. 11(2) and 14(2).
16 Regional organizations made up of states that have delegated some decision-making authority (i.e. a part of the state's sovereignty in a particular domain) to the organization. See e.g. International Fund for Agricultural Development (IFAD) Constitution, Art. 3(1)(b); FAO Constitution, Art. 2(4).
17 WMO Convention, Art. 7(a).
18 Either by applying the WMO Convention in respect of that territory, or by lodging a membership application on the territory's behalf: see WMO Convention, Art. 3(d)–(e). UN Trust Territories were placed in a similar position, with the UN fulfilling the role of the responsible state (Art. 3(f)).
21 UNCLOS, Art. 305 (b)–(e).
22 Ibid., Art. 156(2), read with Art. 1.2(2) and 159(1).
24 International Bureau of the UPU, UPU Constitution and General Regulations with Commentary, Berne, 2005, p. A7.
25 Omeorogbe, Yirka, ‘Functionalism in the UPU and the ITU’, in Indian Journal of International Law, Vol. 27, No. 1, 1987, p. 54.
26 International Bureau of the UPU, above note 24, p. A14.
28 India, the Philippines, Lebanon, and Syria. Questions also arose at the time concerning the Byelorussian and Ukrainian Soviet Socialist Republics: see John Dugard, Recognition and the United Nations, Cambridge University Press, Cambridge, 1987, p. 53. Kirgis notes that, at the time, the latter two were not even putative states, as they were part of the Soviet Union: see Kirgis, Frederic, ‘Admission of “Palestine” as a member of a specialized agency and withholding assessments in response’, in American Journal of International Law, Vol. 84, 1990, p. 228.
29 ILO, 64th Session, Geneva, June 1978, Prov. Record No. 24, pp. 19–20.
30 F. Kirgis, above note 28, pp. 221–222.
31 Permanent Court of International Justice, The Free City of Danzig and the ILO, Advisory Opinion, PCIJ Series B, No. 18, 26 August 1930 (Danzig was not deemed capable of becoming an ILO member, as Poland was responsible for its foreign relations).
32 A body directly appointed by the Security Council in lieu of the trustee, South Africa, which had lost legitimacy – see F. Kirgis, above note 28.
34 The ILO did so, for example, when admitting Japan, Germany, and Vietnam in 1951 (the former two were under Allied command, and the latter had only recently gained independence from France). Ebere Osieke, Constitutional Law and Practice in the International Labour Organisation, Martinus Nijhoff, Dordrecht, 1985, pp. 23–24.
35 F. Kirgis, above note 28, p. 221.
36 Somalia is a case in point – see Gerard Kreijen, State Failure, Sovereignty and Effectiveness: Legal Lessons from the Decolonisation of Sub-Saharan Africa, Martinus Nijhoff, Leiden, 2004, p. 71. It should be noted that ‘failed states’ are a subject that merits examination on grounds different from those relevant here.
37 INTERPOL Constitution, Art. 4 (stipulating that a country's membership application must be made by the appropriate government authorities); Constitution of the IOM, Art. 2 (limiting membership to ‘states’).
38 WTO Agreement, Art. XII(1).
41 Hollis, Duncan B., ‘Why state consent still matters: non-state actors, treaties and the changing sources of international law’, in Berkeley Journal of International Law, Vol. 23, No. 1, 2005, pp. 18–19.
42 IPU Statutes, Art. 3(1).
44 See e.g. IAEA Statute, Art. 4(b); IFAD Constitution, Art. 3(2)(b); WHO Constitution, Art. 6. Although participation in the ICAO Assembly prima facie only requires ratification of the Chicago Convention on Civil Aviation and not a majority vote (thus putting it in a similar position to that of the International Conference (see Art. 48(b)), the Convention would not in fact allow ratification for a state that a majority of the UN General Assembly does not recognize (see Art. 93 bis).
45 See e.g. FAO Constitution, Art. 2(2); ILO Constitution, Art. 1(4); IMO Convention, Art. 7; UNESCO Constitution, Art. 2(2); UNIDO Constitution, Art. 3(b); IOM Constitution, Art. 2(b); INTERPOL Constitution, Art. 4; WIPO Convention, Art. 6(2)(viii), read with Art. 6(3)(d) (with regard to the WIPO General Assembly's exercise of the discretion to invite a non-member of the UN to participate – the WIPO Convention grants the organization's General Assembly discretion to invite states that are not members of the UN (or of various unions for the protection of intellectual property) to become members (Art. 5(2)(ii)); however, in such a case the Assembly must agree by a two-thirds majority). Usually, all members have equal voting rights. It should be noted that in the case of admission to the International Monetary Fund (IMF) and, by extension, the World Bank (see International Bank for Reconstruction and Development (IBRD) Articles of Agreement, Section 1), voting rights are weighted according to financial contribution (IMF Articles of Agreement, Art. XII(5)). This is a possible explanation for Kosovo's acceptance there, in contrast to other international fora, as many states that recognize Kosovo have greater voting rights on the basis of their contributions. See IMF, ‘Kosovo becomes the International Monetary Fund's 186th member’, Press Release No. 09/240, 29 June 2009, available at http://www.imf.org/external/np/sec/pr/2009/pr09240.htm (last visited 30 June 2009).
46 See e.g. UN Charter, Art. 4(2); IMF By-Laws, Section 21(b); UNIDO, Art. 3(b).
47 See the membership clauses cited in notes 11 and 13 above. In particular, the membership clauses of UN specialized agencies show that even existing UN members must expressly accept the obligations of membership of the particular agency, usually by ratification of the agency's founding instrument.
48 UN Charter, Art. 4(1).
49 IOM Constitution, Chapter II, Art. 2(b).
50 UNIDO Constitution, Art. 3.
51 For example, states that may have limited ability to fulfil the collective security obligations in the UN, e.g. micro-states and states following a permanent neutrality policy, have all been admitted to the UN – see C. F. Amerasinghe, above note 6, pp. 106 (n. 4), 108–109.
52 The World Bank, IMF, and WTO allow states to join on terms that are to be negotiated and agreed upon (IBRD Articles of Agreement, Art. II(1)(b); IMF Articles of Agreement, Art. II(2)); WTO Agreement, Art. XII(1).
53 E.g. UN Charter, Art. 5; WMO Convention, Art. 31.
54 E.g. UN Charter, Art. 6; UNESCO Constitution, Art. 2(4); IMO Constitution, Art. 11.
55 UN Charter, Art. 19; UNIDO Constitution, Art. 5(2); WHO Constitution, Art. 7.
56 E.g. UN Charter Art. 5; WMO Convention, Art. 31; UNESCO Constitution, Art. 2(4).
57 See Thürer, Daniel, ‘The failed state and international law’, in International Review of the Red Cross, Vol. 81, No. 836, 1999, p. 734.
58 See Report of the Secretary-General on the Situation in Somalia, S/1999/882, 16 August 1999, para. 63. More generally, on the international relations of failed states, see Geiss, Robin, ‘Armed violence in fragile states’, in International Review of the Red Cross, Vol. 91, No. 873, March 2009, pp. 132–133.
59 G. Kreijen, above note 36, p. 71.
60 See e.g. WHO Rules of Procedure, Rule 23; UNIDO Rules of Procedure, Rule 29.
61 UN General Assembly Rules of Procedure, Rule 29 (read with UN Charter, Art. 18); WHO Rules of Procedure, Rule 23; UNIDO Rules of Procedure, Rule 29.
62 C. F. Amerasinghe, above note 6, p. 65, n. 100.
63 See e.g. FIFA Statutes, Art. 10; IOC Statute, Art. 2; Constitution of the International Chamber of Commerce (ICC), Art. 2(2); World Organization of the Scout Movement (WOSM) Constitution, Art. V(2).
69 IOC Executive Board Resolution, Nagoya, Japan, 25 October 1979, reprinted in ‘China and Olympism’, in Olympic Review, No. 191/192, August/September 1983, p. 586.
71 See e.g. Emmanuelle Moireau (IOC spokesperson), quoted in Stephen Wilson, ‘IOC: Kosovo Olympic team “unlikely”’, in Associated Press Online, 18 February 2008, available at http://www.encyclopedia.com/doc/1A1-D8USTEBG0.html (last visited 20 October 2009).
72 WOSM Constitution, Art. V(2).
74 IUCN Statutes, Art. 1.
77 See e.g. Constitution of the ICC, Art. 1; IOC Statute, Art. 1(1).
78 See the example of the Palestine Liberation Organization (PLO)'s declaration of accession to the Geneva Conventions, below note 133.
79 E.g. the ICAO Assembly, Art 48(b).
81 See e.g. the list of participants at the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Ninth Meeting, Bali, 23–27
June 2008, UNEP/CHW.9/INF/45, p. 42, available at http://www.basel.int/meetings/cop/cop9/docs/i45e.pdf (last visited 9 February 2010).
82 Neri Sybesma-Knol, ‘The United Nations framework for the participation of observers’, in Jean-Marie Henckaerts (ed.), The International Status of Taiwan in the New World Order: Legal and Political Considerations, Kluwer Law International, The Hague, 1996, p. 167.
83 Sybesma-Knol draws the distinction between state sovereignty, derived sovereignty (e.g. intergovernmental organizations with certain supranational decision-making powers), shared sovereignty (e.g. components of federated states), and potential sovereignty (e.g. liberation movements), as well as groups such as minorities and indigenous peoples who claim a degree of internal autonomy; see Neri Sybesma-Knol, ‘Non-state actors in international organisations: an attempt at classification’, in Theo van Boven, Cees Flinterman, Fred Grünfeld, and Rita Hut (eds), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-state Actors, Netherlands Institute of Human Rights (SIM) Special No. 19, Utrecht, 1997, pp. 23–24
. In general, the present article focuses only on the participation of entities that either claim full sovereignty or at least have potential sovereignty – the participation of other entities such as NGOs and intergovernmental organizations in international assemblies raises much broader questions, which go beyond the scope of the present analysis.
84 See e.g. WHO Rules of Procedure, Art. 45.
85 See e.g. the limitations on the participation rights of observers in the WHO, which are expressly stated in the WHO Constitution, Art. 18(h). Otherwise, most provisions regulating voting and office-bearing in organizations expressly mention that only ‘Members’ may do so.
86 WHO Constitution, Art. 18(h); UNIDO Constitution, Art. 4(2); IFAD Rules of Procedure, Rule 43(1). UNESCO and WIPO require a two-thirds majority (UNESCO Statute, Art. IV(E); WIPO Convention, Art. 6(2)(ix) and 7(2)(v), read with Art. 6(3)(d) and 7(3)(c) respectively). The UPU Constitution confers a right of observership upon Restricted Unions; however, such unions must consist of member states (Art. 8).
87 UNFCCC, Art. 7(6) describes how observers with expertise in matters covered in the Convention, and who have informed the Secretariat of their wish to be represented, may be admitted to the Conference of the Parties, unless one third of the states parties present at the meeting object.
88 INTERPOL General Regulations, Art. 8.
89 IFAD Rules of Procedure, Rule 43(1); WIPO Convention, Art. 6(2)(ix) and 7(2)(v); WHO Rules of Procedure, Rule 3.
90 E.g. UPU Constitution, Art. 8 (‘Restricted Unions’, comprising groups of existing member states).
91 UNESCO Statute, Art. IV(E)(13–14
); WIPO Convention, Art. 6(2)(ix) and 7(2)(v); WHO Constitution, Art. 18(h) (which also allows national NGOs to be invited if the government concerned consents).
92 IFAD Rules of Procedure, Rule 43(1).
93 UNIDO Constitution, Art. 4(2).
94 See IFAD Rules of Procedure, n. 3.
95 The ICRC and the International Federation qualified for UN General Assembly observer status on this basis, in particular owing to the ICRC's special role and mandates under the Geneva Conventions and the International Federation's specific role in international humanitarian relations. See UN General Assembly (UNGA), Resolution 45/6, 16 October 1990 (ICRC); UNGA, Resolution 49/2, 19 October 1994 (International Federation). See also Koenig, Christian, ‘Observer status for the ICRC at the United Nations: a legal viewpoint’, in International Review of the Red Cross, No. 280, 1991, pp. 37–48
; Wilfried Remans, ‘The granting of observer status by the General Assembly of the United Nations to the International Federation of Red Cross and Red Crescent Societies’, in Wellens (ed.), above note 9, p. 348.
97 On the ‘degrees of sovereignty’ of observers, see Neri Sybesma-Knol, ‘The continuing relevance of the participation of observers in the work of the United Nations’, in Wellens (ed.), above note 9, pp. 372f.
98 We the Peoples: The UN, Civil Society, and Global Governance, Report of the Panel of Eminent Persons on UN–Civil Society Relations (Cardoso Report), UN Doc. A/58/817, 11 June 2004.
100 C. Koenig, above note 95, p. 44.
102 UNGA, Resolution 3280 (XXIX), 10 December 1974.
103 UNGA, Resolution 35/167, 15 December 1980, operative para. 2; UNGA, Resolution 37/104 of 16 December 1982, operative para. 2. The additional proviso stating that such organizations must also have observer status in the UN means that the UN is nevertheless not bound to grant such status to movements recognized by these organizations.
104 SWAPO was formally invited as an observer to the General Assembly, as well as all other conferences convened by UN organs, by UNGA Resolution 31/152, 20 December 1976.
105 UNGA, Resolution 2649 (XXV), 30 November 1970, operative para. 5.
106 UNGA, Resolution 3210 (XXIX), 14 October 1974.
107 UNGA, Resolution 43/177, 15 December 1988.
108 UN Executive Office of the Secretary-General, Permanent Missions to the United Nations, United Nations, New York, March 2008, p. 293, available at http://www.un.int/protocol/bluebook/bb298.pdf (last visited 3 November 2009).
109 ECOSOC Rules of Procedure, Rule 73.
110 UNIDO Constitution, Art. 4(1).
111 See Inter-Parliamentary Council, ‘Practical modalities of the rights and responsibilities of observers at IPU meetings’, 164th session, Brussels, 11 April 1999 (as amended in April 2009), available at http://www.ipu.org/strct-e/obsrv-new.htm (last visited 1 November 2009).
113 WHO Constitution, Art. 8.
114 FAO Constitution, Art. 3(3); Convention on the IMO, Art. 9; UNWTO Statute, Art. 9(3), as amended by UNWTO General Assembly Resolution 511(XVI), 16th Session, Dakar, November–December 2005; World Health Assembly Rules of Procedure, Rule 44: World Health Assembly, ‘Rights and obligations of associate members and other territories’, 21 July 1948, Official Records of the WHO, 13, 100, 337, Section 1. However, in the WHO, associate members are permitted to vote and to hold office in certain committees and sub-committees not attached to the World Health Assembly (Section 1(1)(ii)).
115 FAO Constitution, Art. 2(11) (the responsible state is required to undertake the associate member's obligations on its behalf); UNWTO Statute, former Art. 6(1); UNESCO Constitution, Art. 2(3); Convention on the IMO, Art. 8; WHO Constitution, Art. 8.
116 Convention on the IMO, Art. 8.
117 UNESCO Constitution, Art. 2(3); UNWTO Statute, Art. 6(3).
118 UNWTO Statutes, Art. 6(1).
119 UNWTO Statutes, Art. 5 (amendment adopted by UNWTO General Assembly Resolution 511(XVI), 16th Session, Dakar, November–December 2005).
120 I.e. ‘tourism bodies without political competence subordinate to territorial entities, professional and labour organizations, academic, educational, vocation training and research institutions and to commercial enterprises and associations whose activities are related to the aims of the Organization or fall within its competence’: UNWTO Statutes, Art. 6(5) (amendment adopted by UNWTO General Assembly Resolution 511(XVI), 16th Session, Dakar, November–December 2005).
124 ILO Constitution, Art. 3(3).
125 At the request of the delegate they accompany and with special permission from the President of the Conference – ILO Constitution, Art. 3(6).
126 While this is specifically addressed in the ILO Constitution, it is common for countries to include in their delegations to such meetings persons who are equipped to handle the issues in question from the perspective of the population affected.
127 WMO Convention, Art. 7(c).
128 Movement Statutes, Art. 9(1).
129 Ibid., Art. 8. Again, it should be noted that separate requirements exist for the recognition and participation of National Societies, and that questions relating to participation of National Societies fall outside the scope of the present analysis.
133 Geneva Conventions of 1949, Common Article 60/59/139/155.
134 In 1989, the Permanent Observer of Palestine to the United Nations Office at Geneva sent a letter to the Swiss Federal Council (depositary of the Conventions), signalling the intention of the PLO – ‘entrusted with the functions of the Government of the State of Palestine’ – to adhere to the Conventions and the two 1977 Additional Protocols. The Swiss Federal Council stated that it was not in a position to decide whether the letter constituted an instrument of accession, ‘due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine’. See ICRC, ‘State Parties to the Geneva Conventions of 12 August 1949’, available at http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P (last visited 28 October 2009). For the full texts, see ‘Law reports: for the record’, in Palestine Yearbook of International Law, 1989, pp. 318–321.
135 E.g. the suspension of South Africa, where the ICRC and a large number of National Societies refused to vote (i.e. rejecting the vote's legality), and the League of Red Cross and Red Crescent Societies abstained – see Report of the 25th International Conference of the Red Cross and Red Crescent, Geneva, 23–31
October 1986, p. 98.
136 Movement Statutes, Art. 16–17.
137 Rules of Procedure of the International Red Cross and Red Crescent Movement (‘Movement Rules of Procedure’), Rule 5.
138 Movement Statutes, Art. 18(2)(a).
141 See François Bugnion, ‘The International Conference of the Red Cross and Red Crescent: challenges, key issues and achievements’, in this issue, pp. 675–712.
142 UN General Assembly Resolution 2758 (XXVI), 25 October 1971.
144 Mr. A. Hay (ICRC President), Report of the 25th International Conference, above note 135, p. 98.
146 Mostly National Societies, and including the ICRC. The League of Red Cross and Red Crescent Societies abstained. See Ibid., p. 98.
148 See e.g. the intervention of Ambassador D. D. Afande (Government of Kenya), who proposed the motion of suspension on behalf of the African delegations: Ibid., p. 80.
149 See e.g. the address of Brigadier B. Wallberg (Swedish Red Cross): Ibid., p. 91.
150 See e.g. the addresses of Mr. J. Mouton Brady (Government of France), and Admiral E. Zumwalt, Jr. (Government of the USA): Ibid., p. 85.
151 Movement Statutes, Art. 11(4).
152 Mr. L. Marin of the Spanish Red Cross, representing a group of seventeen National Societies that had refused to participate in the vote, stated that the group had done so because they ‘considered that the vote was being taken from political positions’: Report of the 25th International Conference, above note 135, p. 98.
154 Movement Statutes, Art. 18(2)(a).
156 Report of the 25th International Conference, above note 135, p. 39.
157 Movement Statutes, Art. 18(1)(d).
158 Movement Rules of Procedure, Rule 9(3). ‘Invited organizations’ usually include those that ‘have working relations with the Movement or a special interest in humanitarian law or related problems’: Abplanalp, Philippe, ‘The International Conferences of the Red Cross as a factor for the development of international humanitarian law and the cohesion of the International Red Cross and Red Crescent Movement’, in International Review of the Red Cross, No. 308, 1995, pp. 567–599.
164 Movement Rules of Procedure, Rule 10.