The Exclusion of Israel from the United Nations Regional Group System
By Sir Robert Jennings, QC*
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:
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.
*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
Source: Israeli Foreign Ministry