Opinion regarding the Exclusion of Israel from the United Nations Regional Group System
by Sir Robert Jennings, QC
Judge (1982-1995) and President (1991-1994) of the International Court of
Justice; Former Whewell Professor of International Law, University of
Cambridge; Honorary Member and Past President, Institut de Droit
International
1. I have been asked, on the instructions of the Government of Israel, for
my Opinion on a matter of great general interest and importance which is
also central to the work of the United Nations Organisation.
2. The matter I have been asked to address is the very damaging and unique
position in which the State of Israel finds itself, of being excluded from
membership of any one of the now five "regional groups" of Members of the
United Nations. All other Members of the United Nations belong in one form
or another, or can at any time decide to belong, to one of these regional
groups.
3. These regional groups, though not mentioned or indeed envisaged in the
United Nations Charter, have nevertheless become an essential part of the
whole working structure of the Organisation. There are a myriad of
functions and activities of the United Nations in respect of which a
Member of the United Nations is not able to take part other than by way of
its membership of one of the regional organisations. There will be found
set out in some detail in the main body of this Opinion a more or less
complete list of the principal examples of such functions and activities.
It is a long and even surprising list. But there is nothing recondite
about the existence and the importance and the influence and power of
these groups, even though it is for the most part completely unknown to
the general public. The crucial importance, for very many practical
purposes, of membership of one of these regional groups is part of the
every-day experience of all who work in the Organisation, whether in New
York or elsewhere, or at the legal or political desks in foreign
offices.
4. The actual situation for the State of Israel, however, is that its
rights as a Member of the United Nations to participate in the work of the
United Nations are largely nullified by its exclusion from membership of a
regional group. In practical terms it is simply denied participation in
many (indeed most) of the activities, functions and offices in which all
other Members do participate and are able by a generally accepted means to
exercise influence and power, to nominate for appointments including
appointments or elections to UN agencies and organs. This hobbled and
undignified position in which the State of Israel uniquely finds itself is
without doubt morally shocking; but it is also manifestly unlawful and
constitutes a breach of both the letter and the spirit of the Charter of
the United Nations.
5. The unlawfulness of the exclusion of Israel speaks for itself. It is no
mere anomaly or irregularity. The unique exclusion without any juridical
explanation of only one full and lawful Member of the Organisation from a
means, and often the sole means, of partaking in the majority of the
activities of the Organisation, must of itself, and quite apart from any
express provision of the Charter, raise a presumption of its being
contrary to United Nations law. But it is also clearly a breach of the
express provisions of Article 2.1 of Chapter I of the Charter - which sets
out the Purposes and Principles of the United Nations - that "The
Organisation is based on the principle of the sovereign equality of all
its Members".
6. The exclusion of Israel from the group system is a grotesque breach of
Article 2.1, if that Article is to have any meaning at all. It is in
breach not only of equality of treatment; it is in breach of the need for
sovereign equality of treatment. For the group system is the means whereby
the Member States most frequently and most effectively exercise their
sovereign rights in the making of decisions, in elections to office, and
in the choices of the policies, legal and political, they wish the United
Nations and its organs to adopt, whether permanently or for a particular
time or situation.
7. It should perhaps be made clear that this Opinion is in no way a
criticism or complaint about the regional group system. This, as will be
shown in the main body of this Opinion, developed naturally out of the
practical need for ways of implementing the requirement, to be found both
in the Charter and in many of the instruments of the Organisation, for
some reasonably fair means for the geographical distribution of
appointments in all ranks, of membership of UN bodies, and of
participation in discussion and decisions on policy directions and the
like. It is not in the least surprising that this group system has over
the years become a principal and indispensable means for the exercise of
power and influence within the United Nations. No doubt it could be
improved in some respects. But that it is here to stay for the foreseeable
future cannot be doubted.
8. It is only one aspect of the working of that system that is here
subjected to the strongest criticism and that is the total exclusion of
just one of the Members of the United Nations from any part in what has
become a crucial element of the legal and political structure of the
United Nations.
9. Although the question of how this continuing illegality could be cured
admits of a number of possible answers, the simplest solution would be to
admit Israel to membership of the Western European and Other States Group.
This, however, is a matter for diplomacy - the law requires that the
illegality of Israel's exclusion now be cured.
10. Article 2 of the Charter moreover provides that "The Organisation and
its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles:
- The Organisation is based on the principle of the sovereign equality of
all its Members.
- All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfil in good faith the obligations
assumed by them in accordance with the present Charter."
11. The regional group system is an arrangement made by the Members
of the United Nations and it is no doubt intended to achieve this second
principle. It is manifest from these provisions of principle that Members
also bear a responsibility for the continuation of the present situation
whereby one of the Members, and one only, is deprived of the possibility
of properly partaking of the rights and benefits which the Charter intends
should result from membership. It is evident too that Members are under a
legal obligation to remedy the present situation.
12. To the extent that Israel's total exclusion from the regional group
system, and hence from full and equal participation in the work of the
United Nations, is the consequence of actions and omissions by UN Members,
I am of the opinion that such action is a breach by Members of their
obligations under the Charter.
13. Israel's continuing exclusion from the regional group system is both
unlawful and strikes at the roots of the principles on which the United
Nations exists. The remedy for the illegality is clear: Israel's admission
to full participation in one of the regional groups. I venture to suggest
that Israel's exclusion should no longer be tolerated; and that it is now
an issue of primary importance for the Organisation itself to see that it
be remedied. So long as it continues, the Organisation is itself in breach
of its own Charter.
Signed
Sir Robert Jennings, QC
4 November 1999