7 April 2024

Chapter 7:   DECISIONS AND DOCUMENTS

Section 6:   Decisions relating to UN membership

Palestine’s request for reconsideration of its 2011 application for UN membership raises several procedural issues

On 2 April 2024, the Permanent Observer of the State of Palestine wrote a letter conveying the request of the “Palestinian leadership” that the Security Council give “renewed consideration” in April to Palestine’s earlier application for UN membership submitted in 2011.[1]

The role of the Security Council in the admission of States to membership in the United Nations is governed by Article 4 of the Charter and by the Security Council’s procedural rules 58, 59 and 60. Paragraph 2 of Article 4 reads: 

“The admission of any such state [other than an original Member] to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”

​The second sentence of the Council’s Rule 59 provides:

“Unless the Security Council decides otherwise, the application [for admission] shall be referred by the President to a committee of the Security Council upon which each member of the Security Council shall be represented. The committee shall examine any application referred to it and report its conclusions thereon to the Council . . .”

Established on 17 May 1946, the Council’s Committee on the Admission of New Members is a standing committee of the whole, that is, comprised of all 15 Council members, as set out in Rule 59. Initially, it handled almost all applications. However, from 1950 to 1970, applications were dealt with directly by the Security Council itself. Rule 59 sets no standards for not referring to the Committee, nor does it require the Council to provide a reason. But it is thought that because the Council approved applications from 69 countries during those years, Council members circumvented the Committee then so as to streamline the process. By 1970, though, some members became uneasy over the accelerated, casual way the Security Council was handling applications and, upon a proposal by France, the Committee was reactivated. Since 1971, the Council has referred all applications to it.

The practice since 1971 has been that, after receipt of an application, the Council President raises the matter during consultations of the whole. The President proposes that a formal meeting of the Council be convened to refer the application to the Committee on the Admission of New Members pursuant to Rule 59.[2] A decision to refer to the Committee is normally a simple statement made during the meeting by the President, and which is not published as a presidential statement but only recorded in the verbatim record. Usually the Committee convenes on the same day as the referral meeting, or soon after.

Where there has been unanimous support for an application, the Committee on the Admission of New Members has held a single meeting at which a draft resolution is agreed. The wording of the draft resolution is highly standardized, comprising one preambular paragraph (“Having examined the application of the [name of the State] for admission to the United Nations (S/2011/418)”) and one operative paragraph (“Recommends to the General Assembly that [name of the State] be admitted to membership in the United Nations.”).

The draft resolution so agreed is published in the Committee’s report on the application, and then customarily adopted without a vote by the Security Council at a formal meeting, together with a presidential statement congratulating the applicant State. Thereafter, in accordance with the Council’s Rule 60, the Secretary-General transmits the resolution to the General Assembly for its decision. The most recent membership application which was approved through this complete process was that of South Sudan in 2011.[3]

This was not, however, the outcome for Palestine’s application made later in the same year.

Handling of Palestine's 2011 application in the Security Council

On 23 September 2011, President Mahmoud Abbas submitted Palestine’s original application for UN membership. In his letter, Abbas stated that the application was

“submitted based on the Palestinian people’s natural, legal and historic rights and based on United Nations General Assembly resolution 181 (II) of 29 November 1947 as well as the Declaration of Independence of the State of Palestine of 15 November 1988 and the acknowledgement by the General Assembly of this Declaration in resolution 43/177 of 15 December 1988.”

Charter Article 4(1) specifies that

“Membership in the United Nations is open to all other peace-loving states [than the original UN Members] which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”

In furtherance of this requirement, the Security Council’s Rule 58 provides that all applications for UN membership “shall contain a declaration made in a formal instrument that it accepts the obligations contained in the Charter.” Accordingly, attached to the letter was a Declaration that Palestine is a peace-loving nation and that it accepts the obligations contained in the Charter and solemnly undertakes to fulfil them. The Declaration, signed by Abbas as President of the State of Palestine and as the Chairman of the Executive Committee of the Palestine Liberation Organization”, notes that this latter is “the sole legitimate representative of the Palestinian people”.

As had been Council practice since 1971, upon receipt of Palestine’s application, the Security Council President proposed during consultations that a formal Council meeting be convened to refer the application to the Committee on the Admission of New Members. This the Council did on 28 September 2011. The Committee then held three formal meetings on Palestine’s application: 30 September, and 3 and 11 November 2011. It also held five informal meetings, four of which were at expert level. 

As mentioned above, Article 4 sets as the standards for UN membership that States shall “accept the obligations contained in the present Charter and, in the judgment of the Organization” be “able and willing to carry out these obligations.” In its 1948 advisory opinion on “Conditions of admission of a State to membership in the United Nations”, the International Court of Justice stated that Article 4 both “fixes the conditions of admission” and “determines also the reasons for which admission may be refused”. The Court added that those conditions “are exhaustive”, that is, “not merely the necessary conditions, but also the conditions which suffice”, although additional “relevant political factors” could be taken into consideration.

Echoing the standards set out in the Charter, Rule 60 of the Council’s Provisional Rules of Procedure provides that “The Security Council shall decide whether in its judgement the applicant is a peace-loving State and is able and willing to carry out the obligations contained in the Charter and, accordingly, whether to recommend the applicant State for membership”.[4]

From the outset of the 2011 deliberations in the Committee on the Admission of New Members, it was clear that Council members were divided over Palestine’s application. According to the Committee’s subsequent report (S/2011/705), in considering whether Palestine met all the Charter requirements for UN membership, reference was made during the discussions to the 1933 Montevideo Convention on the Rights and Duties of States, which declares that a State as a person of international law should possess a permanent population; a defined territory; a government; and the capacity to enter into relations with other States. In the discussions, the view was expressed that Palestine met the requirements of a permanent population and that the lack of precisely settled borders was not an obstacle to meeting the criterion of a defined territory.

The report noted that positions varied as to whether Palestine met the criterion of having the capacity to enter into relations with other States, as well as the criterion of being a peace-loving State. Questions were also raised regarding Palestine’s control over its territory “in view of the fact that Hamas was the de facto authority in the Gaza Strip”. In fact, a number of objections were raised concerning Hamas and its failure to renounce terrorism and violence. However, reference was also made to the 1971 Advisory Opinion of the International Court of Justice on Namibia, which stated that the only acts that could be attributable to a State were those of the State’s recognized authority.

As the Committee discussions progressed, it became evident that while a majority supported a decision by the Council recommending that the Assembly admit Palestine to UN membership, this stance was not shared by all. According to the Committee’s report, at least two members stated they could not support a favourable recommendation at that time.

It is now the Council’s established practice that any recommendation for UN membership decided within the Committee should be by consensus. Since this was not attained in the 2011 case of Palestine, the Committee did not transmit a draft resolution to the Security Council for a vote. Instead, pursuant to Rule 60, the Committee prepared a special report, “with a complete record of the discussion”, for submission to the General Assembly. This report included the statement that “the Committee was unable to make a unanimous recommendation to the Security Council.”

Although the Committee did not forward to the Security Council a draft resolution recommending Palestine’s admission, this would not have precluded an initiative by one or more Council members to themselves table a resolution. A decision by the Council, as contrasted to the Committee, would not have required full consensus, but only the minimum of nine affirmative votes and no negative vote by a permanent member. And there had been sufficient cases where an application which failed to reach consensus in the Committee was subsequently put before the Council by some of its members, although this had not occurred since the 1976 case of the Socialist Republic of Viet Nam.

The likely reason that in 2011 no draft resolution on admitting Palestine was brought independently to the Council is that support among Council members reportedly fell short of the necessary nine votes. A publication by the Ministry of Foreign Affairs of Colombia,[5] a Council member at the time of Palestine’s application, later recorded these as the positions stated during the Committee’s deliberations:

Would vote in favour of admission (8):

Brazil, China, Gabon, India, Lebanon, Nigeria, Russian Federation, South Africa

Would vote against (1):

United States

Would abstain (5):

Colombia, France, Germany, Portugal, United Kingdom

No position stated (1):

Bosnia and Herzegovina

As an alternative to recommending Palestine for UN membership, it was noted in the Committee report that a suggestion had been made that “as an intermediate step, the General Assembly should adopt a resolution by which Palestine would be made an observer State.” At a Security Council meeting on 24 October 2011, the French representative, commenting on the Palestinian application, had observed that everyone knew “the path to admission to the United Nations is strewn with obstacles.” Accordingly, he recalled that on 21 September 2011 the President of France proposed “an intermediate stage that could generate concrete progress for the Palestinians by elevating the status of Palestine in the United Nations to that of Observer State.” 

This the General Assembly did on 29 November 2012 in its resolution 67/19, by which it decided “to accord to Palestine non-member observer State status in the United Nations”. In the resolution, the Assembly stopped short of invoking its Rule 137 by which, if the Council does not recommend or postpones an application, the Assembly may “send the application back to the Council . . . for further consideration and recommendation or report.” However, resolution 67/19 did express the hope “that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations”.

Palestine's request for reconsideration of its application

The renewal in April 2024 of Palestine’s application for UN membership potentially raises a number of procedural issues:

1)  Must the application be considered by the Committee on the Admission of New Members, or might it be taken up directly by the Council as a whole?

Rule 59 states that “Unless the Security Council decides otherwise, the application shall be referred by the President to a committee of the Security Council”. As noted above, since 1971 the Council has referred all applications to the Committee, so the precedent is very ingrained. Nonetheless, Rule 59 does allow that the members still today might decide to consider an application directly in the Council itself, thereby bypassing the Committee, The Security Council could decide by consensus to itself take up Palestine’s application directly, or the question could be put to a procedural vote.

In order to conform to Charter Article 27(2), the procedural vote on any affirmative action provided for in the Council’s Provisional Rules of Procedure should normally be to determine how many Council members support that action. However, since Rule 59 states “Unless the Council decides otherwise”, in this case the vote would likely be to determine how many Council members are in favour of acting “otherwise” and taking up the application without referral to the Committee.

2)  Is it sufficient that Palestine has requested reconsideration of its original 2011 application without any updates, or should new documentation be submitted?

When it requested reconsideration of its 2011 application, Palestine sent a letter with no attachments, thus in effect stating that it considers all the information presented as part of its original application still to be valid, including the Declaration. There have been earlier cases of applicants which initially failed to be recommended by the Council and which later requested reconsideration, and in each case the Council accepted the initial documentation as sufficient.[6] However, on extremely rare occasion, the Committee on the Admission of New Members has requested that an initial applicant submit additional information.[7]

3)  Must the Committee’s recommendation be unanimous?

Most of the Council’s subsidiary bodies have written guidelines which require all decisions to be taken by consensus. In contrast, the Committee on the Admission of New Members lacks written guidelines and so this matter has never been codified. But although there is no legal restraint against deciding otherwise, the longstanding practice of the Committee has been to take decisions by consensus. And because this also lines up with the other subsidiary bodies, consensus decision-making might be hard to overturn in the Committee.  

4)  If the Committee fails to forward a draft resolution recommending admission to the Council, can one or more Council members submit a resolution directly to the Council?

There is ample precedent of Security Council members bringing a draft resolution to a vote in the Council after the Committee failed to act positively on an application. To give some examples, in 1972 four members brought a draft resolution to a vote on Bangladesh, and in 1976, six members brought a draft to a vote on Angola, while in the same year ten members did so concerning the Socialist Republic of Viet Nam. It should be noted, however, that in these cases all the draft resolutions were vetoed.

5)  If some Council members, acting independently of the Committee, submit a draft resolution directly to the Council, would non-Council Member States be permitted to co-sponsor?

By practice, the Council normally leaves it to penholders to decide whether they will accept non-Council Member States as co-sponsors on a draft resolution. In cases of a recommendation to the Assembly on admissions, however, to date there have never been non-member co-sponsors. There are no legal constraints against this. However, having non-member co-sponsors might be politically contentious for some Security Council members, since Article 4 of the Charter provides for two different and distinct competences for the two bodies with respect to admissions.

In the event of strong opposition, Council members seeking to preclude non-member co-sponsorship could call for a procedural vote. Rule 38 makes the entitlement of non-members to co-sponsor a draft resolution conditional upon their being invited pursuant to Rule 37 to participate in the adoption meeting. Thus if brought to a procedural vote, at least nine Council members would have to vote in favour of Rule 37 invitations to those non-members wishing to co-sponsor pursuant to Rule 38. However, such a challenge to non-member co-sponsorship would be an extreme step which has never occurred over the Council’s entire history, and many members might be wary of creating a precedent.

6)  Are Chapters VI or VII relevant to a draft resolution recommending Palestine’s admission?

It is important not to assume that only decisions adopted under Chapters VI or VII of the Charter can be considered "substantive". Although often overlapping, two different criteria are involved. A substantive decision relates to any question that the Council has not deemed to be procedural, and it is possible for the Council to adopt a substantive decision which does not implicate either Chapter VI or VII. It was never intended by the drafters of the Charter that the Security Council would be restricted to adopting substantive decisions only if they fell within either Chapter. 

As relates specifically to membership applications, to employ the descriptive titles for the two Chapters at the 1945 San Francisco Conference, although some admissions requests might be seen as promotive of either “Prevention” or “Coercion”, this could not be generalized in the case of all requests, especially those of the many applicants which had no recent history of conflict. Therefore, from the beginning, actions on applications for membership have been considered to be outside the reach of either Chapter VI or VII, but nonetheless substantive. And thus, as will be seen in the next section, they are subject to veto.

​

7)  If a resolution on admissions is brought to a vote in Security Council, is it subject to veto?

Since the first negative vote by a permanent member against a draft resolution on an admission in 1946, such resolutions have consistently been considered subject to veto. That is, the admission of new members is deemed to be a substance question within the terms of Article 27(3), rather than procedural.

In total, China, the Soviet Union and the United States have cast 59 negative votes on admitting new members, each of which was announced by the Council President as a veto.[8]

8)  May Council members other than the Council President, or any non-Council States, speak at formal Council meetings held on admissions?

Since 1971, no Council member other than the President has spoken at the formal meetings held either to refer an application to the Committee on the Admission of New Members, or to vote on a recommendation to the General Assembly. However, this has been merely a convention, and any Council member has a standing right to speak at any formal meeting.

Should a non-Council Member State request to speak at a formal meeting on an admission, like any other request to speak at a formal meeting, this would be governed Rule 37 which requires “a decision by the Security Council”. Thus the request could be denied.

9)  Must the time limits set out in Rules 59 and 60 be respected?

Rule 59 and 60 set out deadlines for the Committee to report back to the Council, and for the Council to make recommendations to the Assembly, respectively. Of these two, only Rule 60 allows for the Council to deviate from the timeline in “special circumstances”. However, in the case of both rules, there have been instances when the deadlines have not been observed, and this has not become an issue. This is owing to the fact that the deadlines were originally envisaged as necessary at a time when the Assembly normally met only annually at its regular fall session.

10)  Could the General Assembly act to admit Palestine as a UN Member State absent a recommendation by the Security Council?

In its 1948 advisory opinion on “Conditions of admission of a State to membership in the United Nations”, the International Court of Justice made clear that both components of Article 4 were requisite: 1) a recommendation by the Security Council, followed by 2) a decision by the General Assembly. Thus the process begins with Security Council, and cannot go forward for consideration and decision by the General Assembly absent a Council “recommendation”.

However, it will be recalled that in 2012, after the Council proved unable to recommend to the General Assembly that Palestine be admitted, the Assembly acted to enhance the standing of Palestine in the United Nations by adopting resolution 67/19, which accorded to Palestine “non-member observer State status”.

Should the Council again fail to forward a recommendation to the General Assembly, it is possible that the Assembly will consider a new resolution to further enhance Palestine’s standing in the Organization. In this connection, it has been noted that General Assembly resolution 73/5 accorded to Palestine several rights and privileges in the Assembly and at certain conferences during 2019, in view of Palestine’s chairing the Group of 77 for that year. When acting on behalf of the G77 and China, these included the rights to submit proposals and amendments and introduce them; to exercise a right of reply; and to raise procedural motions, including points of order and requests to put proposals to the vote. It was commented in 2018 when resolution 73/5 was adopted that although its provisions were only for the duration of Palestine’s G77 chairmanship, a precedent had been created that legally such rights could be accorded to a State with observer status at the United Nations. It is also noteworthy that in the vote of 146-3-15 on resolution 73/5, fourteen of the present Security Council members voted in favour, with the United States voting against.

Concluding observations

This article has discussed a number of procedural matters that may possibly arise in the context of Palestine’s request for reconsideration of its 2011 application for UN membership. However, it is more likely that the actual consideration of this request by the Security Council will be relatively straightforward.

It is believed that the United States remains opposed to recommending the admission of Palestine at the present time, whether this would be expressed through a lack of consensus in the Committee on the Admission of New Members, or as a veto in a vote in the Security Council itself. Nonetheless, because of the primary role given by the Charter to the Security Council in the question of admissions, how transparently and judiciously the Council carries out this process is important because it will undoubtedly receive wide public attention.

(This update supplements pages 417-420 and 422-423 of the book.)

__________________________

[1] S/2011/592 of 23 September 2011.

[2] The agenda item for the official meeting at which the decision to refer an application to the Committee is taken is the generic “Admission of new members”, rather than an agenda item indicating the specific applicant. On the Council’s programme of work, the format is shown as a “Public meeting” rather than being listed under more usual meeting formats such as “Briefing”, “Debate” or “Adoption”.

[3] See the Committee report (S/2011/420), S/RES/1999 (2011), S/PRST/2011/14, and S/PV.6582 (13 July 2011).

[4] In parallel, General Assembly Rule 136 provides that “If the Security Council recommends the applicant State for membership, the General Assembly shall consider whether the applicant is a peace-loving State and is able and willing to carry out the obligations contained in the Charter”.

[5] Colombia in the United Nations: Security Council 2011-2012, Security Council Team, Ministry of Foreign Affairs, Bogotá, 2013, pp. 184, 187-188.

[6] This was the case, for example, concerning the application by Bangladesh which was vetoed in 1972. After that country’s request for reconsideration of its original application in 1974, it was admitted that year without any request from the Committee for supplemental documentation.

[7] See the book, page 492.

[8] Vetoes were cast, some on renewed applications, by the Soviet Union (51), the United States (6), and China (one by the Republic of China; one by the People’s Republic). The Soviet Union voted against Austria, Cambodia, Ceylon (Sri Lanka), Finland, Ireland, Italy, Japan, Jordan, Kuwait, Laos, Libya, Mauritania, Nepal, Portugal, Republic of Korea, Spain and Viet Nam. The United States voted against Angola, Republic of South Vietnam, and Democratic/Socialist Republic of Vietnam. China voted against Bangladesh and Mongolia.