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Withdrawal from the United Nations the Indonesian Intermezzo

Published online by Cambridge University Press:  28 March 2017

Egon Schwelb
Egon Schwelb*
Affiliation:
Yale Law School
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Extract

The Charter of the United Nations does not contain an express provision prohibiting, permitting or regulating the question of withdrawal from the Organization. The absence of such a provision from the text of the Charter has caused uncertainty, confusion and controversy.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 3 , July 1967 , pp. 661 - 672
Copyright
Copyright © American Society of International Law 1967

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References

1 Paul de Visscher, “Les premiers amendements apportfés a la Chart de 1'Organisation des Nations Unies,” 1966 Revue Beige de Droit International (No. 2) 350, attributes this omission to “ a rather naive feeling of modesty” ﹛“un sentiment de pudeur assess naif“).

2 Very many writers have expressed views on the problems created by the silence of the Charter. For comprehensive recent surveys of the subject and of the relevant literature see Fernand Dehousse, “Le droit de Retrait aux Nations Unies,” Pt. I in 1965 Revue Beige de Droit International (No. 1) 30; Pt. II in 1966 ibid.(No. 1) 8, with Annex on the withdrawal of Indonesia, p. 21; and Mario Scerni, “Aspetti giuridici del Ritiro dalle Nazioni Unite,” 20 La Comunità Internazional 227 (1965); Feinberg, “Unilateral Withdrawal from an International Organization,” 39 Brit. Yr. Bk. of Int. Law 189 (1963), presents a thorough legal analysis of the problem both in regard to the United Nations and to other intergovernmental organizations. See also 1 Oppenheim-Lauterpacht, International Law §168d (8th ed.); Goodrich and Hambro, Charter of the United Nations, Commentary and Documents 142-145 (2d ed.); Kelsen, The Law of the United Nations 127; idem, “Withdrawal from the United Nations,“ 1 Western Political Quarterly 29-43 (1948); 1 Schwarzenberger, A Manual of International Law 268-269 (4th ed.); Verdross, Völkerrecht 435 (3rd ed.); 2 Dahm, Völkerrecht 179; 1 Guggenheim, Lehrbuch des Völkerrechts 244; 1 idem,Traits de Droit International Public 262; 2 Wengler, Volkerrecht 1322-1323; Fritz Munch, “Vereinte Nationen,” in 3 Schlochauer, Wörterbuch des Völkerrechts 495-496; Mc- Dougal, Lasswell and Vlasic, Law and Public Order in Space 906-908; Francesco Carlo Gentile, “ I I Becesso dalle Nazioni Unite,” 6 La Communita Internazionale 464 (1951); Nagendra Singh, Termination of Membership of International Organisations 79 (1958); Hoyt, The Unanimity Rule in the Revision of Treaties 63 (1959). The following deal with the Indonesian withdrawal from the United Nations: Schwarzenberger, Letter to The Times (London), Jan. 11, 1965, p. 9; William E. Harris, , “Legal Aspects of Indonesia's 'withdrawal’ from the United Nations,” 6 Harvard International Law Club Journal 172 (1965);Google Scholar Frances Livingstone, , “Withdrawal from the United Nations— Indonesia,” 14 Int. and Comp. Law Q. 637 (1965)CrossRefGoogle Scholar; Elias Bluth, , “Retiro Voluntario de un Estado Miembro de la Organization de las Naciones Unidas—El Caso de Indonesia,“ 3 Anuario Uruguayo de Derecho Internacional 363 (1964).Google Scholar

3 Cmd. 6571 (1944), par. 56 (Emphasis added). As will be seen from this and the two following footnotes, neither the United Kingdom, the United States nor the Soviet Union maintained a completely consistent attitude in regard to the question of withdrawal. The United Kingdom representative in Committee 1/2 of the San Francisco Conference stated “that the inclusion of a specific reference in the Charter to withdrawal would not affect the rights which already belonged to a state” (7 UNCIO Docs. 264); and the representative of the same government in Commission I said that the United Kingdom Delegation was satisfied that the power to withdraw was implicit in the Charter (6 ibid.123).

4 Statement in Committee 1/2 of the San Francisco Conference, 7 UNCIO Docs. 265. For the preparatory discussions of the question and the various conclusions arrived at within the United States Government, see Ruth B. Russell, A History of the United Nations Charter: The Role of the United States 1940-1945, Chs. XIV, XVI and XVIII; for the post-San Francisco Senate Hearings, see Kelsen, The Law of the United Nations 129-133, and Feinberg, loc. cit.198-199.

5 Statement in the Ninth Plenary Meeting of the San Francisco Conference, 1 UNCIO Docs. 619. The Soviet view of 1945 that the right of unilateral withdrawal was an attribute of state sovereignty is reflected in the withdrawal clause of an important multilateral treaty concluded eighteen years later: Art. IV of the Nuclear Test Ban Treaty of 1963, Cmnd. 2118, Misc. No. 10 (1963); 57 A.J.I.L. 1026 (1963). See X, “Nuclear Test Ban Treaties,” 39 Brit. Yr. Bk. of Int. Law 455 (1963), and Schwelb, “The Nuclear Test Ban Treaty and International Law,” 58 A.J.I.L. 660 et seq.(1964). However, at the San Francisco Conference there was at least one deviation from the Soviet line in favour of the right to withdraw. A subcommittee of Committee 1/2 on which the U.S.S.R. was represented by S. Krylov, later a Judge of the International Court of Justice, reported that “ i t was the unanimous opinion of the sub-committee that the members of the Organization should not have the right to withdraw.” 7 UNCIO Docs. 542; also ibid.37.

6 6 UNCIO Does. 249; see also ibid.163 (proceedings of Commission I ) ; 7 UNCIO Docs. 73, 262, 274 (corrigendum), 327-329 (proceedings in Committee 1/2).

7 1 UNCIO Docs. 616-620.

8 The Law of the United Nations 127.

9 49 Annuaire de 1'Institut de Droit International (Tome I) 237 (1961). Professor Bolin's statement, to which Professor Feinberg (loc. cit.,note 2 above, p. 203) draws attention, was made in the course of an argument against the “solution anarchique“ recommended by the late Professor Giraud as rapporteur of the Institute, who had espoused the view that a general multilateral convention not containing any denunciation clause is subject to denunciation at any time. In this context Rolin used the San Francisco arrangement as an arguent against the unlimited right to withdraw (libreretrait)and probably did not intend to deny the existence of the circumscribed right of withdrawal from the United Nations for which the interpretative Declaration provides.

10 Op. cit.note 2 above, p. 144.

11 Op. tit.note 2 above, p. 180.

12 Letter to The Times (London), Jan. 11, 1965, p. 9.

13 Loc. cit.note 2 above, Pt. I, p. 38. While Feinberg, loc. cit.215, does not go as far as Schwarzenberger and Dehousse to classify the commentary as part of the lex societatisof the United Nations or as an integral part of its legal order, he arrives at the same result as far as the practical consequences are concerned. He mentions the United Nations as an instance, or theinstance, of an international organization where, as a consequence of the interpretative Declaration, a right to withdraw exists despite the absence of a provision to this effect in its basic instrument.

14 I.L.C. Reports on the Second Part of Its 17th Session and on Its 18th Session, General Assembly, 21st Sess., Official Records, Supp. No. 9 (Doc. A/6309/Rev. 1); 61 A.J.I.L. 248 (1967); Draft Articles on the Law of Treaties, Art. 53. The question could be raised whether it is really true that the Charter “contains no provision regarding“ termination, denunciation or withdrawal. A state applying for admission must “accept the obligations contained in the present Charter” (Art. 4). It could be claimed that a state cannot unilaterally repudiate obligations which it has accepted. Pursuant to pars. 1 and 2 of Art. 2, the position of an original Member cannot in this regard be different from that of a Member admitted after 1945. This is, of course, a consideration which would support Kelsen's view.

15 Art. 4 of the Draft Articles on the Law of Treaties cited in note 14.

16 This was the general view expressed in the Sixth Committee of the General Assembly when it considered an earlier version of the present draft Art. 53 (U.N. Docs. A/C.6/ SB. 783, 784; A/5601, Nov. 6, 1963).

17 I.L.C. Reports, referred to in note 14, draft Art, 27 (2)(a).

18 Draft Art. 28, op. cit,note 14.

19 TJ.N. Doc. A/5857; S/6157, Jan. 21, 1965. UNICEF (the United Nations Childrens' Fund) is not a specialized agency, but an organ of the United Nations established by General Assembly Bes. 57 (I) of Dec. 11, 1946.

20 U.N. Doe. A/5899; S/6202, Feb. 26, 1965.

21 U.N. Doe. A/5911; 8/6229, March 12, 1965.

22 U.N. Doe. A/5914; S/6356, May 17, 1965.

23 TJ.N. Docs. E/4000 and E/4007, March 11, 1965.

24 TJ.N. Doc. E/SB. 1359, March 24, 1965.

25 General Assembly Res. 2004 (XIX), Feb. 18, 1965.

26 General Assembly Res. 2118 (XX), Dee. 21, 1965.

27 See notes 19 and 20 above.

28 XJ.N, Doc. A/6419; S/6498, Sept. 19, 1966.

29 U.N. Doc. A/PV. 1420 (Provisional), Sept. 28, 1966. The procedure applied in the case of the seating of Indonesia after the period of non-participation was similar to that by which the Syrian Arab Republic resumed membership in the United Nations when the United Arab Republic, formed in 1958 by uniting Egypt and Syria in one single state, broke up in 1961. On resumption of Syrian independence its government recalled that the Syrian Republic was an original Member of the United Nations and had “continued its membership in the form of joint association with Egypt under the name of United Arab Republic.” It requested that the United Nations take note of the resumed membership of Syria. The President of the General Assembly reported that he had consulted many delegations and that the consensus seemed to be that, “in view of the special circumstances of this matter, Syria, an original Member of the United Nations, may be authorized to be represented in the General Assembly as it has specifically requested.” No objection was raised and Syria took its seat in the Assembly as a Member of the Organization, with all the obligations and rights that go with that status (U.N. Docs. A/4913-S/4957; A/4914-S/4957; A/PV. 1035 and 1036, Oct. 13, 1961. See also the Secretariat Memorandum, Doc. A/CN. 4/149 and Add. 1, “The succession of States in relation to membership in the United Nations,” 1962 I.L.C. Yearbook (Vol. II ) 104-105). The legal basis for the action taken in the case of Indonesia was, however, different from the legal basis of the Syrian case. The seating in 1961 of Syria was an application, admittedly a very liberal one, of the concept of state succession. In the case of Indonesia the underlying idea appears to have been that “the bond of membership has continued.“

30 The press reported that originally objections had been raised in some quarters against the arrangement, in view of recent events in Indonesia. These objections do not appear in the official records relating to the transaction.

31 Scale of Assessments for the Apportionment of the Expenses of the United Nations. Contributions of Indonesia for the years 1965 and 1966. Report by the Secretary General, U.N. Doc. A/C.5/1097, Dec. 6, 1966.

32 U.N. Doc. AC.5/SR.1170 (Provisional), Summary Record of a meeting of the Fifth Committee held on Dec. 16, 1966; U.N. Doc. A/6630, Report of the Fifth Committee, Dec. 19, 1966. See also General Assembly Res. 2240 (XXI), Dec. 20, 1966, and the Addendum to the Report of the Committee on Contributions, General Assembly, 21st Sess., Official Records, Supp. No. 10A (A/6310/Add. 1).

33 Examples are the standard of the ‘ ‘ reasonable man” or of the man on the Clapham Omnibus in the law of torts, the diligentia boni patris familiesof Roman law, the concept of “public policy” in the law of contracts and in the law of conflicts of law; of “l'ordre public”and of “les tonnes moeurs”of the French Code Civil.

34 Examples are: “procedural matters” (Art. 27); “important questions” (Art. 18); “the obligation to promote to the utmost the well-being of the inhabitants“ (Art. 73; taken over from the Mandates system); “fundamental change of circumstances“ (draft Art. 59 in U.N. Doc. A/6309/Rev. 1, note 14 above).