UN Membership and the State Requirement

Abstract

The UN Charter provides that membership is open to all peace- loving States. How should one understand the State requirement for UN membership, and is it linked to the law of statehood? This article analyses the practice of UN admission procedures and contextualizes it broadly with the State requirement in international treaties. It argues that some non- States have been Member States as well as non- member observer States of the UN. Such practice should not be labelled as being anomalous or sui generis. Rather, it should be taken as evidence of separation between international treaty procedures on the one hand and the substantive law of statehood on the other. Certain voting procedures regulated by international treaties should not be mistaken for state- creation procedures or collective recognition. Membership of the UN or its specialized agencies can have far- reaching effects, however. Such membership effectively creates an entity’s treaty- making capacity where treaties are generically open to all States. The member then procedurally becomes a State for the purposes of participation in such international treaty regimes. This should not be conflated with State creation. The term ‘State’ for the purposes of participation in international treaties open to ‘any State’ or ‘all States’ is functionally defined by the so- called ‘Vienna formula’: it is not a matter of the Montevideo criteria or any other requirements under the law of statehood. This article thus argues that for the sake of doctrinal clarity, such procedural definitions of the ‘State’ for the purposes of participation in multilateral treaties need to be consistently separated from the substantive issues of the law of statehood. Palestine’s appearance before international judicial bodies proves that such a separation is in principle upheld in international practice, but the line is sometimes unclear.