How it would differ from leaving the EU
Following the triggering of Article 50 by Prime Minister Theresa May, one may wonder whether treaties of other international organisations also provide for (similar) withdrawal mechanisms. One of such organisations is the United Nations (UN).
The League of Nations
The League of Nations (League) was the forerunner to the UN. It came into existence in January 1920 under Part I of the Treaty of Versailles, called the Covenant of the League of Nations (Covenant). The League ceased to exist in April 1946. The Covenant provided for the possibility of withdrawal from the Geneva-based organisation. Article 1(3) of the Covenant read as follows:
Any Member of the League may, after two years’ notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal.
The United Nations
Unlike the Covenant, the Charter of the United Nations (Charter) does not include a withdrawal clause.
However, the Charter provides for the suspension (article 5) of a member of the UN from the exercise of its rights and privileges, as well as for the expulsion (article 6) of the member of the UN who has persistently infringed the principles enshrined in the Charter.
Although the Charter does not contain a withdrawal provision, the key question — from the perspective of the members of the UN as well as the UN itself — is whether a right to withdraw exists at all. In order to answer that question, one must conduct an analysis of the text of the Charter and of the provisions of the 1969 Vienna Convention on the Law of Treaties (VCLT).
The text of the Charter
As far as the text of the Charter is concerned, there is no express provision that would permit or deny a right to withdraw. As a consequence, one may pose the following question: did the parties to the Charter intend to permit or deny such a right to withdraw?
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The issue of the right to withdraw was discussed in great detail at the 1945 San Francisco Conference. After weighing up the arguments, the Committee dealing with the issue of withdrawal from the UN concluded that a member has the right to withdraw if exceptional circumstances arise.
The member of the UN can depart from it if, for example, one of the following conditions is satisfied:
1) the UN has failed to maintain international peace and security;
2) the rights and obligations of the member of the UN have been altered by an amendment to the Charter and consequently that member of the UN finds itself unable to accept it;
3) the amendment to the Charter has not been ratified by the necessary number of the members of the UN.
This shows the parties to the Charter did not intend to make withdrawal from the UN legally impossible. The existence of the right to withdraw is inferred from the context of the Report of the Committee dealing with the issue of withdrawal at the 1945 San Francisco Conference: that the member of the UN can exercise the right to withdraw only in exceptional circumstances.
With regard to the first example of exceptional circumstances, any member of the UN has the power to decide whether the UN has failed to maintain international peace and security. The next example of exceptional circumstances — namely the member of the UN finds itself unable to accept an amendment to the Charter that has altered its rights and obligations — is in conflict with article 108 of the Charter.
According to this provision, all the members of the UN are bound by the amendment to the Charter adopted by a vote of two thirds of the members of the General Assembly and ratified pursuant to their respective constitutional processes by two thirds of the members of the UN, including all the permanent members of the Security Council. That means that the member of the UN that does not accept the amendment to the Charter does not have a ‘better’ right to withdraw.
The last example of exceptional circumstances, i.e. failure to secure the ratification necessary to bring the amendment to the Charter into effect, is controversial as well.
If the amendment does not come into force, a legal situation remains unchanged. The member of the UN that has voted in favour of the amendment may wish to depart from the UN if the amendment has failed to secure the ratification necessary to bring it into force. However, the right to withdraw is not restricted to the members of the UN that have voted in favour of the amendment. Any member of the UN can exercise the right to withdraw if the amendment to the Charter has not been ratified by two thirds of the members of the UN.
The Vienna Convention
Pursuant to article 5 of the Vienna Convention, VCLT applies to a treaty which amounts to a constituent instrument of an international organisation or which was adopted within the international organisation, without prejudice to any relevant rules on which the international organisation is based.
A withdrawal of a party may, in accordance with article 54 of VCLT, take place: (i) in conformity with the provisions of the treaty; or (ii) by consent of all the parties after consultation with the other contracting states. It is clear that VCLT is relevant only if the treaty of the international organisation does not include a withdrawal clause. However, as far as the UN is concerned, article 54 does not seem to apply to an act of voluntary withdrawal. Unlike the latter, article 56 of VCLT applies to the act of voluntary withdrawal.
Section 1 of article 56 reads as follows:
A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) It is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) A right of denunciation or withdrawal may be implied by the nature of the treaty.
A right to withdraw cannot be implied by the nature of the Charter. However, the parties to the Charter intended to admit the possibility of withdrawal. As a result, VCLT does apply to the issue of withdrawal from the UN.
Indonesia’s purported withdrawal
The first and only test case was Indonesia’s purported withdrawal from the UN.
In January 1965, the Secretary General was notified that the Indonesian Government had taken a decision to withdraw from the UN. The decision was made in protest against Malaysia’s election as a non-permanent member of the Security Council. The question was whether the rationale behind the decision of the Indonesian government amounted to an exceptional circumstance.
However, in September 1966, the Secretary General was notified that the Indonesian government had decided to begin full cooperation with the UN, as well as to resume participation in the General Assembly. In other words, the aim of that decision was to resume Indonesia’s seat in the General Assembly without the necessity of instigating the re-admission procedure under article 4 of the charter. That means that, in January 1965, Indonesia did not de jure withdraw from the UN.
So, although the Charter does not provide for a withdrawal provision, a member of the UN has the right to withdraw from the New York-headquartered institution, which is dependent on exceptional circumstances that may or may not happen. However, taking into consideration the impulsiveness and shallowness of some UK politicians, the UK could end its relationship with the UN regardless of the existence of so-called exceptional circumstances or without invoking article 56 of the Vienna Convention. Such a decision would not be politically and diplomatically smart.
Bartlomiej Kulpa is a University of Westminster law graduate and a PhD candidate at VU Amsterdam. He is also a paralegal.
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