1. University of Macerata Prof. Avv. Roberto Baratta, PhD
International Institutions Law 8

2. International Institutions membership procedures Constituent treaties usually contain such provisions which aim at controlling who can join the Institution
Distinction between founding members and ‘newcomers’ is worth recalling. Legally, this distinction matters for two reasons:

3. a) the founders may not allow a third State to come in, although constituent instruments are in principle open treaties b) usually, new Members cannot renegotiate the constituent treaty as a whole. Only minor adjustments are permitted. It would not be realistic to make accession to the UN conditional upon to rule out the privileged position accorded to the permanent members of the SC: they are the only ones allowed to use veto powers. So the newcomers are in essence rule takers and not rule makers as regards the treaty shaping

4. First example - UN membership
Article 4(1) UN Charter: “Membership in the UN is open to all other peace-loving Sates which accept the obligations contained in the present Charter and, in the judgment of the Org., are able and willing to carry out these obligations”
So, four conditions are provided for:
1) only State entities are allowed to join
2) states must be peace-loving
3) aspirant UN members must accept the obligations of the Charter
4) they must be able and willing to carry out UN obligations

5. As to the first condition, a State
As to the first condition, a State. It has been not restrictively applied in the beginning (the cases of the two USSR Republics of Belarus and Ukraine)
This condition implies that UN is not open to non state entities, namely to other Iis: e.g. EU. Other IIs may have different rules (for instance, EU has become member of Food and Agricolture Organisation)

6. What is a State? Article 4(1) refers impliedly to general international law, i.e. entities which have an effective and independent government, territory and population, and the capacity to enter into international relations, are qualified as states. Under UN practice, this issue is somehow obfuscated by issues of recognition. Thus, admission becomes to a large extent politicised However, once an entity is admitted to the UN, this very fact establishes a strong presumption that it is a state

7. - second condition, a peace-loving state
- second condition, a peace-loving state. This is an understandable requirement, and it has historically played a role to block accession of ‘aggressors’ of the 2nd World War, and Franco’s Spain. Currently, this criterion does not appear to carry out too much weight in the UN practice. It is often thought that the best way to ensure peace is to incorporate a potentially aggressive state in the UN

8. As to the third condition, accepting the Charter’s obligations This obligations amounts to little more than stating the obvious

9. As to the fourth condition, capacity and willingness to carry out the obligations of the Charter
A similar criterion was used in 1920 to deny the admission of Liechtenstein into the League of Nations. Being a micro-state, it has traditionally placed many of its external affairs in the hands of Switzerland. So, the Assembly of the League denied its access because it could not fulfil the obligations ensuing from the constituent instrument

10. A similar reasoning could have delayed admission to the UN of Germany and Japan, since their constitutions forbid military activities abroad. That issue was eventually solved by a ruling of the BVG in 1994, with the Court holding that participation in collective security measures would not infringe the German Constitution The UN practice does not oblige the participation to security measures. It pragmatically authorizes enforcement actions. Thus, neutral states, like Austria, may reconcile their neutrality with membership of the UN. That explains why also Liechtenstein has been admitted to the UN in 1990; the same holds true as regards San Marino.

11. the political nature of admission: it is eventually a matter for the UN organs to judge
The ICJ held that the conditions mentioned in Article 4 are exhaustive (ICJ Report , Conditions of Admission of a State to Membership in the UN) - once they are fulfilled no other grounds may be invoked to deny membership. Still, since admission depends on the judgment of the Institution, what matters is that that judgment is carried out in good faith

12. Procedure for being admitted to the UN is simple: the SC recommends, the GA decides. In the Second Admission Opinion of 1950, the ICJ focused on the meaning of the word ‘recommendation’. It rejected the GA argument that recommendation was not binding so that the GA could also admit a member if the SC casts a negative vote. The ICJ held that if there is no recommendation, the GA has no basis to act upon. Article 4 creates some kind of balance between the two institutions. That interpretation puts emphasis on the will of SC, while implying that its permanent members can use their veto. In 1975 the US vetoed the application of the two Vietnams

13. Second example: EU membership
EU admission procedure is quite complicated
Article 49 TEU: “Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The EP and NPs shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the EP … The conditions of eligibility agreed upon the European Council shall be taken into account”. The accession agreement “shall be submitted for ratification by all the contracting States with their respective constitutional requirements”.

14. So a number of conditions is required: 1) only States are allowed in; 2) the applicant must be a European State 3) the applicant respects EU values: human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. Again, according to Article 2 these values “are common to the MS in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between woman and men prevail”.

15. Special forms of membership
Normally, IIs tend to have only one class of member. Yet, they may provide for associate membership to address specific needs. A special form of M. may lead up to full M at a later date since it is conceived to prepare full participation.
Associate members have limited rights (eg their nationals cannot hold office either the Inst., or their representative have no voting rights within the organs of the Org etc.)

16. Micro States within the UN
Micro States within the UN. In the 60s and early 70s UK and USA proposed an associate Membership for those States which might not be fully able to carry out all obligations arising out of M.

17. The status of observer or active observer. They enjoy no full rights
The status of observer or active observer. They enjoy no full rights. The status may be granted through the adoption of a resolution by the competent organ of the Org., or an association agreement to that effect. The precise meaning thereof may differ. Active observer means that it can not only participate to the meetings of the Institution organs, but also take the floor and express its positions. Yet, it usually cannot vote, that right belonging just to full members.

18. Observer status is a flexible solution meant to accomodate entities which cannot become Members because they are not states, e.g. the Palestine Liberation Organisation (PLO) is an observer with the UN since the 1970s.

19. State succession and membership
Customary international law as regards state succession is unclear, although the ICJ had several opportunity to clarify it.
When it comes to membership of IIs, rules of each II will prevail (Art. 4 of the 1978 Vienna Convention on Succession of States in respect of treaties). The problem is that few Is have their own rules.

20. Two situations can be distinguished 1) merger of two states in terms of annexation - there is no much a membership problem. Eg: German unification: the leading theory holds that it was not a case of succession but rather a case of accession of some Laender to an entity which it continued to exist in law. Strictly speaking, there is no obligations to succeed to. But what about the treaties concluded under auspices of an II? Was Germany obliged by the treaties concluded by GDR? Germany correctly denied it. For essentially there is no rule under int. law which obliges the State which receives the acceding entity to fulfil the agreements stipulated by the latter

21. 2) In all other cases, the basic idea is membership to II is personally attached to the person of a state: if that state disappears and there is no successor, it should apply for membership.

22. the case of USSR with respect to UN: it was agreed by all old USSR members that Russia would be the continuation of the USSR and therefore the Russian Federation continued to be a member of IIs, while the other Republics had to apply for admissions as new states. Russia could also take up the legal position of USSR in the Security Council the case of Czechoslovakia: no ‘continuing State’ was identified. So Czech Republic and Slovakia applied again for M of most IIs, and were accepted without problems. The two countries were treated as new members the case of dissolution of Yugoslavia. the issue of ‘continuing state’ was controversial. Serbia claimed to be the logical continuation of Yugoslavia, since the others left. The UN did not consider Serbia Rep as a continuing State. Yet, the UN Office of Legal affairs argued that Yugoslav mission at UN might continue to function. After some time Serbia applied and was admitted as a new member

23. Termination of membership
UN Charter provides for expulsion. Article 6: GA, upon recommendation of the SC, may expel a member if it ‘has persistently violated the Principles’ contained in the Charter
Yet, one of the SC’s permanent members may veto expulsion; the GA may not reach the required two-thirds majority
It is not a decision to take lightly because it politically can be better to keep the state within the UN

24. The IMF envisages expulsion if a M fails to meet its obligations, though the founding instrument refers to compulsory withdrawal rather than expulsion. On this basis, Czechoslovakia's membership came to an end in Another way to tackle important breach of the constituent treaty is to envisage sanctions, usually applying suspensions of rights and privileges. For instance - Organisation for the prohibition of chemical weapons: expulsion is prohibited, but violations may be brought before the UN Security Council - UE: in case of violations of ‘values’, certain rights attached to membership, including voting rights, may be suspended

25. Other forms of termination
- Dissolution: the Institution dissolves (the most important example is the dissolution of the League of Nations)
- Withdrawal. Some IIs grant a right to withdrawal, usually upon a certain period of notice
Where no specific provision is included, general international law is most likely to be applicable.
Membership is founded on two grand ideas of sovereignty: sovereign states submit themselves to IIs voluntarily; sovereign states retain control over themselves and their II.

26. the case of Indonesia and UN (1965)
the case of Indonesia and UN (1965). It announced its intention to withdraw and, acting coherently, did not participate to UN’s work. In 1966, it announced its intention to resume full co-operation. It was accepted without much discussion. A compromise was reached over its contributions during the period of absence France withdrawal from NATO in 1960s. It remained a member, but withdrew from NATO’s main character: its integrated military structure Amending the constituent treaty: some II provide that if the treaty is amended and a party does not accept the amendment, that state stops being a MS.

27. Withdrawal and termination
A right to withdrawal from the UN? The Charter provides no provision probably because it was assumed that it would be redundant rather then contrary to customary law. So that right is based on customary law, or on the rebus sic stantibus doctrine, or on being it inherent from the sovereignty of states

28. If the constituent instrument does not set special rules, some guidance can be found in Article 56 VCLT. This provision lays down a general rule and two exceptions: as a general rule if a treaty contains no withdrawal provision, there is no right to withdraw; however, first exception, a right of withdrawal can be established from the intention of the parties; second exception, a right of withdrawal may be implied in the nature of the agreement (e.g. treaties of alliances)

29. A right of withdrawal is provided for in the EU treaty - Article 50 TEU it lies upon the conclusion of an agreement between the MS and the EU. It is concluded by the Council, after obtaining the consent of the EP. However, the EU treaties cease to apply after the entry into force of that agreement or two years after the notification of the MS intention to withdraw

30. ICJ 1980 Opinion concerning the headquarters of the WHO’s regional office in Alexandria (due to tensions in the Middle East states pushed WHO to move elsewhere regional office in Egypt) - Article 56 VCLT is of little help when it comes to treaties concluded with IIs. Given the unclear normative framework of the relevant agreements, the ICJ merely held that negotiations in good faith between the WHO and Egypt were called for. It ensues that Article 56 is not a hard and fast rule. Yet it may provide a useful indication to the parties