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Home International Organisations Withdrawal from the United Nations: Would it have been Lawful for the Philippines?

Withdrawal from the United Nations: Would it have been Lawful for the Philippines?

Published on September 19, 2016        Author: 

50 years ago today (on 19 September 1966), the Ambassador of Indonesia to the United States sent a telegram to the UN Secretary-General stating that “my Government has decided to resume full co-operation with the United Nations and to resume participation in its activities . . .” That marked the beginning of the end of the only case where a UN member has purported to withdraw from the organization. Last month, Rodrigo Duterte, President of Indonesia’s neighbour, the Philippines, threatened that the country would withdraw from the United Nations because of criticism by two UN Special Rapporteurs (see here). As has been widely reported, and as pointed out by Marko a couple of weeks ago, hundreds of (or on some accounts up to 3000) suspected drug dealers or users have been killed since the Duterte took over in Philippines.  On 18 August, the UN Special Rapporteurs on Summary Executions and on the Right to Health issued a statement “urging the Government of the Philippines to put an end to the current wave of extrajudicial executions and killings in the context of an intensified anti-crime and anti-drug campaign targeting drug dealers and users.” In response, Philippines President Duterte stated that “maybe we’ll just have to decide to separate from the United Nations” (see here and here). The Philippines Foreign Minister later stated that the country had no plans to leave the UN, and Duterte himself subsequently stated that his threat was just a joke.

However, the threat to withdraw does raise the question of whether UN members may legally withdraw from the Organization. Although the circumstances are very different, and there are clear treaty provisions to provide guidance, British withdrawal from the European Union also provides cause to ponder more generally about how and when states may withdraw from international organizations. Would the Philippines have been entitled to withdraw from the UN? Unlike the position with the European Union, and it’s now well-known Article 50 of the Treaty on European Union), the UN Charter does not make explicit provision for withdrawal. This post explores whether despite the absence of specific provision,  a UN member is legally entitled to withdraw from the organization.

The Indonesian Precedent

Indonesia’s purported withdrawal from the UN was made in protest at the election of Malaysia to the Security Council. It communicated its decision to withdraw from the UN to the Secretary-General in January 1965. Following changes in the government, Indonesia sought in September 1966 “to resume full co-operation with the United Nations and to resume participation in its activities” (see UN Doc S/7498). However, although Indonesia was not treated as a member during the period of its withdrawal (for example it was not included in the General Assembly resolution assessing members for contribution to the UN budget and ceased to be listed as a member of UN organs), it was not required to reapply for readmission when it returned in 1966. Instead, the President of General Assembly announced at a plenary session of the Assembly that “[I]t would  . . . appear that the Government of Indonesia considers that its recent absence from the Organization was based not upon a withdrawal from the United Nations but upon a cessation of co-operation. The action so far taken by the United Naitons on this matter would not appear to preclude this view.” He then stated that unless there were any objections he “would assume that it is the will of the membership that Indonesia should resume full participation in the activities of the United Nations.” There being no objection, the delegation of Indonesia took its seat and thus returned the country to the UN.

This pragmatic way of dealing with Indonesia’s return, which avoided that country having to reapply for membership (and avoided a potential veto), was devised by the UN Office of Legal Counsel (see UN Juridical Yearbook, 1966, 222 at 223, para. 8). It may well have been the handiwork of Oscar Schachter, the famous international lawyer who was then Director of the UN General Legal Division. While Indonesia was absent from the UN he had written a piece in the Annual Review of United Nations Affairs 1964-65 (Swift, ed.) 119) where he foresaw the possibility that if Indonesia were to return the view could be taken that “there had been no express acceptance of the legality of the withdrawal and, in consequence, Indonesia should not be treated like a new applicant.”

Although Indonesia did purport to withdraw, the incident was not in the final analysis treated as a case of withdrawal and left uncertain the question whether and when a UN member may withdraw. Suffice it to note that at the time some doubt was expressed by states as to whether and when a member could legally withdraw and more specifically as to whether Indonesia was legally entitled to withdraw in the circumstances.

Is Withdrawal from the UN Possible?

In considering the legality of withdrawal from the UN, two questions will need to be addressed. First, is withdrawal possible at all? Second, and this question will only arise if one gives a positive answer to the first question: what are the circumstances under which, and by which procedure may a state withdraw? Thus, even if withdrawal were possible in the abstract, were the circumstances of the Philippines scenario such that it would have been permitted to withdraw.

Unlike BREXIT and withdrawal from the European Union, the absence of a withdrawal clause in the UN Charter means that the answer to the first question must be derived from the general law of treaties. Afterall, withdrawal from the UN is a case of withdrawal from a treaty, the UN Charter. Art. 56(1) of the Vienna Convention on the Law of Treaties provides that where a treaty does not explicitly provide for the possibility of withdrawal, withdrawal is not legally permissible unless it is established that the parties intended to admit of that possibility or a right of withdrawal may be implied by the nature of the treaty. In the case of the UN Charter, a proposal to include a withdrawal clause was rejected by a small margin (See UNCIO VII, 261-6). Nevertheless, the drafting history of the Charter indicates quite clearly that the parties intended to admit of the possibility of withdrawal and that despite the permanent nature of the Organization created by the Charter, the treaty was not regarded as one that would admit of no right of withdrawal. In the discussions around the drafting of what was to become Article 108 dealing with amendments to the Charter, the Committee and the Plenary of the Conference adopted a declaration that contemplated the possibility of withdrawal in a number of cases. According to this declaration, withdrawal might occur in exceptional circumstances. The declaration went on to state that where the organization was unable to fulfil its role of maintaining peace or where a member was unable to accept an amendment that had come into force, or in cases where an amendment was accepted by a majority of the Assembly but failed to secure sufficient ratifications to bring it into force, members could withdraw. (UNCIO VII 267; UNCIO I 616, 631)

When a May a State Withdraw from the UN?

However, establishing that withdrawal is possible under the law of treaties, only leads to the second question of when such withdrawal is possible. The fact that withdrawal was foreseen in certain circumstances does not lead to the conclusion that states are free to withdraw in any circumstance. So, the fact that withdrawal is possible in law does not mean that the Philippines would have been free to withdraw last month as a result of criticism by two UN Special Rapporteurs.

In the case of a treaty that explicitly provides for withdrawal or where withdrawal is foreseen as a possibility by the parties, it must be the case that withdrawal is only legally permissible in those circumstances with respect to which the parties intended to admit of that possibility. Where withdrawal is specifically contemplated in the drafting of the treaty, or in the treaty itself, it would be subversive of the intention of the parties to admit of a broader, open ended, right to withdraw. The drafting history of the Charter outlined above indicates some particular circumstances with regard to the coming into force of amendments, or the failure to bring amendments into force, when an aggrieved state may decide to withdraw from the organization. However, it was also envisaged, more generally, that withdrawal would be permissible in “exceptional circumstances.” Although the meaning of this phrase is unclear, the expression must refer to circumstances which are unforeseen at the time the state became a member. It is possible that the expression can be regarded as referring simply to the rule by which a state may withdraw from a treaty on account of fundamental change of circumstances. In those circumstances a state may withdraw from a treaty where “the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty” (Art. 62(1) VCLT). In this connection, it should be pointed out that even in the absence of provision in a treaty permitting withdrawal or where it cannot be shown that the parties intended to accept that possibility, withdrawal can take place in accordance with the rules of the law of treaties including the rules relating to fundamental changes of circumstances.

There is nothing in the circumstances surrounding the Philippines that would fall within the situations in which it was contemplated that members could withdraw. The situation was not exceptional, nor was it a case of the UN being unable to fulfill its functions with regard to the maintenance of peace. There was also no fundamental change of circumstances within the meaning of the VCLT. Thus withdrawal by the Philippines, had it occurred, should have been treated as legally ineffective.

Despite the law being restrictive with regards to the right to withdrawal, questions will nonetheless arise as to what is to be gained (both legally and politically) by continuing to treat as a member, a state that has sought to withdraw.

 

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10 Responses

  1. Theodore CHRISTAKIS

    Thanks for this interesting contribution Dapo.

    Persons working on this topic might find some interest in reading my commentaries of article 56 VCLT where I deal extensively with these issues: 1)Corten (O.), Klein (P.), (dir.), A Commentary of the Vienna Conventions on the Law of Treaties, OUP, 2011, pp.1251-1278 and (more detailed version): 2) Corten (O.), Klein (P.), (dir.), Les Conventions de Vienne sur le droit des traités, Commentaire article par article, Bruxelles, Bruylant, 2007, pp. 1951-2014.

  2. Perhaps I’m not reading this correctly, but it seems that the arguments don’t really support this concluding statement: “Thus withdrawal by the Philippines, had it occurred, should have been treated as legally effective.” It could be that that sentence is missing a crucial negative ( “… should NOT have been treated as legally effective…”), or the previous two paragraphs need to be clarified to support the conclusion.

  3. Dapo Akande

    Dear Sam,

    Many thanks for this VERY important correction. I intended to say withdrawal by the Philippines should have been treated as legally INEFFECTIVE. I have now corrected the text.

    Dapo

  4. This is a very interesting article. But what about the principle of sovereignty? The UN Charter does not grant a right of withdrawal but also does not preclude it. Moreover, in practical terms, if a States stops contributing with the UN budget, stops sending delegates to its different organs and stops complying with the legal obligations arising from the UN Charter, can something be done?

  5. Moshe Hirsch

    Dapo, very interesting post – many thanks.
    Some scholars believe that the UN Charter isn’t a regular treaty but rather constitutes a significant element of international constitutional law (universally applicable to all states); if that’s the case, regular rules of treaty law (such as Art 56 VCLT) should not necessarily be applied to the UN Charter. No?

  6. Dear Dapo,

    Excellent and thoughtful post. Readers interested in a contemporaneous account of Indonesian situation may wish to consult Egon Schwelb, Withdrawal From the United Nations: The Indonesian Intermezzo, 61 AJIL 661–72 (1967).

    Regarding your question in the final paragraph — “what is to be gained (both legally and politically) by continuing to treat as a member, a state that has sought to withdraw?” — the answer may be quite a bit. If the other member states accept or acquiesce to a withdrawal, then the exiting state’s legal obligations under the UN Charter would cease as of the date the withdrawal was effective (although this would not affect its preexisting obligations, nor its obligations under customary international law). In terms of politics, my 2005 article on Exiting Treaties, http://ssrn.com/abstract=683481, describes how withdrawal often has distinctive consequences for a state’s reputation for international cooperation than breaches of international commitments.

  7. André de Hoogh André de Hoogh

    Dapo, you claim that “[a]lthough Indonesia did purport to withdraw, the incident was not in the final analysis treated as a case of withdrawal …” If I may say so, I read this episode entirely differently. The record shows that the UN not only accepted the decision of Indonesia to withdraw, but also that it did not challenge the circumstances under which this occurred notwithstanding that these transcended those contemplated during the drafting of the Charter. After all, the election of a UN member State as a non-permanent member of the Security Council could hardly be considered exceptional and would also be, in the ordinary course of events, entirely predictable. That the UN accepted the suggestion of Indonesia to resume full cooperation was clearly done for political reasons (or practical ones) and not based upon any legal rationale. Under no stretch of the imagination could Indonesia’s declaration that it had “decided … to withdraw from the United Nations” (para. 4 of the memo that you refer to) and its consequent absence from the UN be interpreted as only a “cessation of co-operation” (ibid., para. 8).

    Otherwise, your claim regarding the impossibility of a Philippines’ withdrawal under the circumstances seems to be based upon the claim that declarations made during the drafting of a treaty are dispositive for what is or is not allowed in this respect. Indeed, you say that allowing withdrawal in broader circumstances would be “subversive of the intentions of the parties”. Yet those intentions have not made it into the text of the treaty and have therefore not been clothed in legal form. To put it in other words, technically the intention of the parties does not exist during the drafting of the treaty and declarations made during conferences, while they may have a certain relevance to the interpretation of the text of the resulting treaty (art. 31(2) VCLT), cannot be considered law for the parties. All this is but to say that it is the (customary) law of treaties which is the applicable law, and that one cannot equate statements or even declarations made during conferences to a kind of lex specialis.

  8. Dapo Akande

    Dear Moshe,

    Many thanks for your comment. You are of course right that Charter is often thought of as being other than a regular treaty. However, it is still a treaty and I believe that the rules of treaty law do apply to it. They may not apply in the same way (for example, we may be more willing to rely on the object and purpose of the Charter than on the text) but this will usually be because of flexibilities that exist within the law of treaties, rather than because the law of treaties does not apply. In this particular case, it is significant that the drafters of the Charter themselves seemed to be of the view that something like the customary law equivalent of Art. 56 would apply to the Charter.

    Dapo

  9. Dapo Akande

    Dear Andre,

    Thank you for your comment. First of all, when I said that the Indonesia incident was not in the final analysis treated as a case of withdrawal, I did not mean to suggest that the UN did not in the first place treat Indonesia as having withdrawn. I think Indonesia was, during its absence, treated as having withdrawn. However, the procedure adopted for its readmission, could only have been taken on the view that Indonesia had not withdrawn. Indeed, this point was made explicitly and adopted by consensus at the time of Indonesia’s readmission. Nevertheless, my own view is that Indonesia did indeed withdraw and should have been treated as such. Thus the procedure adopted for readmission, was, in my view, legally questionable.

    Second, you question recourse to the drafting history in considering whether there is a right to withdraw. It is important to emphasise here that recourse to the drafting history is what is required by the relevant rule of the law of treaties (Art. 56). Moreover, the rule in Art. 56 – at least Art. 56(1)(a) is generally regarded as customary (the position with regard to Art. 56(1)(b) might be different – see Theodore Christakis’ excellent commentary that he refers to above). And that rule only applies where the treaty contains no express provision on termination/withdrawal. In other words, the rule in Art. 56(1)(a) is specifically directed at permitting recourse to the drafting history for the purpose of establishing whether there is a right to terminate the treaty.

  10. Peter Kyla

    I believe that a special consideration, with regards to the interpretation of Art. 56(1) of the Vienna Convention on the Law of Treaties, should be made when dealing with foundational treaties of international organizations. That’s because of the principle of sovereignty of states.

    It seems difficult to accept that a state could be forever forbidden to withdraw its membership from an international organization and thus be irreversibly limited in its sovereignty. After all, to become a member of an international organization is a political decision and the political direction of a state can indeed change in time.

    That said, and as was already mentioned, a strong argument can be made that the UN Charter is not a simple foundational treaty like others. It can be even argued that to withdraw from the United Nations means to withdraw from international community as a whole and even from contemporary international law (which is biult upon the UN Charter). Indeed, that would create a completely different discussion.

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