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

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.