Forget the Security Council: The General Assembly Can Admit Palestine

 [John Quigley is Professor Emeritus at the Moritz College of Law of The Ohio State University.]

On April 18, the UN Security Council considered Palestine’s application for membership in the United Nations. When a vote was taken on a draft resolution to recommend Palestine’s admission, twelve states voted in favor, while two abstained. Only one state, the United States, a permanent member, voted in the negative. The Chair ruled that the draft failed because of that negative vote.

That action of the Security Council raises a question for the UN General Assembly. Could the General Assembly now take up Palestine’s application and admit it to membership? Under the UN Charter, it is the General Assembly that admits states. Per Charter Article 4(2), admission “will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” The first part of that sentence seems to put the General Assembly in the driver’s seat. The second part, however, reads as a potential brake on the process.

As a practical matter, unfavorable action by the Security Council does not end the matter. If it fails to adopt a positive recommendation, the Security Council so informs the General Assembly. “If the Security Council does not recommend the applicant State for membership or postpones the consideration of the application,” recites Security Council Rule 60, “it shall submit a special report to the General Assembly with a complete record of the discussion.” The farthest the General Assembly has gone in the past when it has disagreed is to ask the Security Council to re-consider. The General Assembly’s own Rule 137 outlines this step.

The Ambiguity of UN Charter Article 4

The Charter does not further explain the key phrase “upon the recommendation of the Security Council.” Early in the history of the United Nations, member states sparred over its meaning. There was contention over whether this phrase required a positive recommendation, or whether it merely required the General Assembly to await a recommendation that might be either positive or negative. That uncertainty led the General Assembly to ask the International Court of Justice for an advisory opinion. In an opinion titled Competence of the General Assembly for the Admission of a State to the United Nations, the ICJ said, over two dissents, “that the admission of a State to membership in the United Nations, pursuant to paragraph 2 of Article 4 of the Charter, cannot be effected by a decision of the General Assembly when the Security Council has made no recommendation for admission, by reason of the candidate failing to obtain the requisite majority or of the negative vote of a permanent Member upon a resolution so to recommend.” The ICJ noted the practice that had by then developed: “The organs to which Article 4 entrusts the judgment of the Organization in matters of admission have consistently interpreted the text in the sense that the General Assembly can decide to admit only on the basis of the recommendation of the Security Council.”

That last statement was less than accurate. Although it had never admitted a state without a positive recommendation from the Security Council, the General Assembly had not conceded that such deferral to the Security Council was required by Article 4. “Subsequent practice,” to be sure, can be “taken into account” in interpreting a treaty provision, but under Article 31(3)(b) of the Vienna Convention on the Law of Treaties, practice carries weight only if it “establishes the agreement of the parties regarding its interpretation.” According to a report (at p. 156) of the International Law Commission, practice “establishes the agreement” only if the parties “have taken a position regarding the interpretation of the treaty.”

No position had been taken by the General Assembly that it must await a positive recommendation from the Security Council, and such is the case even up to the present. As explained in a 1962 ICJ case by Judge Fitzmaurice, the fact that the parties to a treaty have acted a certain way does not necessarily demonstrate their understanding that they must act that way. In the estimation of a State Department lawyer of the early UN years, the General Assembly’s failure to admit states absent a positive Security Council recommendation may have reflected political deferral to a sister UN body.

The General Assembly is also aware that the Security Council, after initially denying an application, may re-visit it, with or without prompting from the General Assembly. The General Assembly, even if it wants to admit such a state, may await new action from the Security Council. An example of Security Council reconsideration is Israel’s November 1948 application. The Security Council declined to act, but in March 1949, Israel re-applied and the Security Council made a positive recommendation.

ICJ Ignored Drafting History of Article 4(2)

When the General Assembly asked the ICJ for the advisory opinion, the UN Secretariat provided documentation from the San Francisco conference where the UN Charter was drafted. Article 4(2) featured heavily in that documentation. The ICJ declined to consider it, however, on the grounds that Article 4(2) was clear in conveying that a Security Council recommendation was required, and that the recommendation had to be positive. The ICJ found “no difficulty in ascertaining the natural and ordinary meaning of the words in question.” The history behind Article 4(2), however, might well have led the ICJ to a different opinion. A role for the Security Council in the admission process was an innovation for the United Nations over the admission process followed in the League of Nations. Under the League Covenant (Article 1), its Council had no role in admitting states. In the UN Charter, however, a commitment to peace was added as a requirement for admission. Article 4(1) limits membership to states that are ”peace-loving.” The Security Council’s role in the admission process flowed from its presumed closer knowledge about the peace-loving character of states. It could flag states that might not be committed to peace, so that the General Assembly would not admit them.

The San Francisco documentation showed that the Security Council role was not intended to deprive the General Assembly of its power to admit a state. An Advisory Committee of Jurists that worked with the states involved in drafting the Charter explained that Article 4(2) provided for a “right of the Assembly to accept or reject a recommendation for the admission of a new Member, or a recommendation to the effect that a given State should not be admitted to the United Nations.” The conference’s Committee II/1 expressly accepted (at pp. 97-99) that understanding of Article 4(2). The drafting history seemed clear that Article 4(2) gave the General Assembly the power to admit a state once the Security Council had an opportunity to decide whether to make a recommendation.

The Veto Was Not Meant to Apply on Admission to Membership

The drafting history also belied the ICJ’s opinion about the veto. At the San Francisco conference, the five future permanent members, even including the USSR, adopted a Voting Procedure memorandum in which they explained the veto (at p. 713) as follows: “In view of the primary responsibilities of the permanent members, they could not be expected, in the present condition of the world, to assume the obligation to act in so serious a matter as the maintenance of international peace and security in consequence of a decision in which they had not concurred.” The veto was meant to ensure that peace-enforcement action be taken only when backed by the five major powers. Such as the rationale for the veto. It was not to apply to issues like admission to membership.

In 1946, the first set of applicant states, all supported by the West, gained the necessary qualified majority in the Security Council, but the USSR voted in the negative. As it happened, the rotating chair of the Security Council was held by a USSR ally, Poland, whose representative ruled (at p. 139) that the recommendations had failed because of the negative Soviet votes. The other permanent members did not challenge the ruling, but the matter was raised in the General Assembly, where US delegate Warren Austin said (at p. 906), in line with the Voting Procedure memorandum, that the veto applied only to “action by the Council concerned with the enforcement of peace.” Had the United  States held the chair in the Security Council instead of Poland, the ruling would likely have been to disregard the negative Soviet vote.

In the Security Council’s first years, the permanent members other than the USSR agreed informally not to vote in the negative on admissions that were supported by the requisite qualified majority. When Israel applied for membership, Britain opposed its admission because Israel was encroaching on Jerusalem and was refusing to repatriate Palestine refugees. Nonetheless, Britain abstained in the Security Council rather than vote in the negative, explaining (at p. 3) that it would not use its “privileged vote to block the admission of any State which obtains the requisite majority.”

The Path is Open to the General Assembly

The Biden Administration denies that Palestine is a state. In the Security Council on April 18, it explained that the United States supports Palestine statehood only “in the context of a comprehensive peace agreement.” Israel has said it will not negotiate a peace agreement that would involve its acceptance of Palestine statehood. From the Security Council’s report on the April 18 Palestine vote, it will be apparent to the General Assembly that the US reasoning that prevented a positive recommendation is well outside an international consensus. Twelve states supported the Palestine application. The ground has been laid for the General Assembly to act. In the wake of the Security Council vote, Micheal Martin, Foreign Minister of Ireland, announced that “Ireland fully supports UN membership and will vote in favour of any UNGA resolution to that end.” Martin said, “It is past time for Palestine to take its rightful place amongst the nations of the world.”

Even if the General Assembly could be said to have, in the past, deemed the Charter to require a positive Security Council recommendation, there is no reason it could not re-visit the question. The General Assembly is not bound by the 1950 ICJ advisory opinion. The General Assembly is free to interpret the Charter. The General Assembly is not subservient to the Security Council. Per Charter Article 15, the Security Council reports to the General Assembly, not the other way around.

In the General Assembly, a two-thirds vote is required to admit a state, but, per Charter Article 18, only of members present and voting. Under the General Assembly’s Rule 86, members who abstain are not counted in the total. So abstentions that could be expected from some European states would not block Palestine’s admission. The Article 4(1) requirement of statehood would not be an obstacle for Palestine. In 2012, 138 states voted in the General Assembly to say that Palestine is a  state, while only nine voted against. The Charter has no procedure to override a General Assembly resolution to admit a state. A favorable vote in the General Assembly would make Palestine a member state.

[The author’s analysis is based on his article Who Admits New Members to the United Nations (Think Twice before You Answer, George Washington International Law Review, vol. 44, at p. 179 (2012).]