The Legality of Denying a U.N. Member State’s Delegation Credentials: A Debate Reignited
Vol. 43 Associate Editor
Following its hostile takeover of Afghanistan in August 2021, the Taliban submitted a request to the U.N. General Assembly’s Credentials Committee (“Committee”) seeking approval for the appointment of its own delegation as a replacement for the country’s prior representation in the U.N. General Assembly. In December of 2021, the Committee refused (for a second time) to make an accreditation decision on the Taliban’s proffered delegation. This decision leaves Ghulam Isaczai, Afghanistan’s formerly appointed Ambassador to the United Nations, in office. The Committee’s decision is rooted in concerns about the delegation’s ability to authentically represent the citizens of Afghanistan, given its history of human rights abuses and attitudes towards women. The recent controversy is likely to reignite a longstanding debate over whether a decision by the Committee to deny accreditation is legally permissible under the U.N. Charter. Such decisions have the effect of barring unaccredited member states from participation in most aspects of the General Assembly’s work. Hence, a rejection functions much like a suspension from the international organization in practice. The problem? The power to initiate suspension of a member state from the United Nations is exclusively reserved to the U.N. Security Council under the U.N. Charter. This leaves open a legal question of whether the Committee’s choice to deny credentials violates the U.N. Charter. The Legal Concern: Formally, the U.N. Security Council is the only body with the power to initiate the suspension or expulsion of a member state from the United Nations. Although the General Assembly is technically the body which “may suspend [a member state] from the exercise of the rights and privileges of [U.N.] membership,” it can only do so “upon the recommendation of the Security Council.” The Charter does not, however, address the possibility of de facto suspension or expulsion by other branches of the United Nations resulting from independent exercises of power. For example, the General Assembly is also able to control participation of member states through its rules and procedures enacted according to Chapter IV of the Charter. Chapter IV of the Charter provides that the U.N. General Assembly “shall adopt its own rules of procedure.” Rule 28 of the General Assembly’s Rules of Procedure states that the Committee, “shall examine the credentials of representatives [of each member state] and report without delay.” Further, Rule 29 of the Rules of Procedure provides that any member may object to any representative’s admission as part of a delegation. When this happens, the rules require that the objected-to representative, “be seated provisionally with the same rights as other representatives until the Credentials Committee has reported and the General Assembly has given its decision.” Although the Rules of Procedure suggest that the General Assembly has some final ability to decide on who will participate in its sessions, the credentialing process has traditionally been thought of as only a formality, and credentials rejections are relatively rare. Nonetheless, the Committee’s recommendations have played a role in some states’ abilities to participate in the General Assembly, particularly those engaged in egregious human rights violations. In the 1970s, for example, the Committee recommended that the General Assembly reject credentials of the delegation set forth by South Africa. The U.N. General Assembly obliged, with many states citing the country’s Apartheid-era racial policies as their primary reason for affirming the Committee’s recommendation. The U.N. Legal Counsel opposed the choice, stating that the General Assembly’s actions, “would have the effect of suspending a member state from the exercise of rights and privileges of membership in a manner not foreseen by the Charter.” If nothing else, the General Assembly’s ability to affirm the rejection of South Africa’s credentials revealed the discretionary nature of the Committee’s decisions, which are not subject to any formal guidelines under the Rules of Procedure. Rule 28, for example, does not offer any guidance as to what criteria a state’s delegation must meet in order to qualify as a legitimate delegation worthy of accreditation. Further, the Rules of Procedure fail to elaborate on the effect of the Committee’s choice to reject a state’s credentials. Additionally, because the Security Council has never exercised its article 5 or article 6 powers to enable the General Assembly to suspend a member state legally under the Charter, it is impossible to know how suspension and delegation denial would function differently in practice. The lack of distinction between a bar from participation in U.N. committees and a suspension or expulsion has left the international community with a number of questions about the reach of the Credentials Committee’s authority. Based on the Rules of Procedure, it seems that the Credentials Committee technically has the power to leave a delegation without a voice on the floor of the U.N. General Assembly. For the reasons stated above, however, it is possible to argue that the Committee’s choice to not to make any decision on the Taliban’s delegation is in conflict with the U.N. Security Council’s power to suspend or expel a delegation. The question could likely be resolved by a clear distinction between a member state’s suspension from United Nations proceedings and the inability of a member state’s delegation to participate in U.N. General Assembly proceedings due to a failure to receive accreditation from the Credentials Committee. A Proposed Solution: One way to resolve the controversy might simply be to define the criteria which make a delegation a legitimate representative of a member state. This would help the Credentials Committee explain the reasons behind a refusal to accredit a delegation, pressure even hostile governments to comply with the Credentials Committee’s criteria (which could include demonstrating compliance with human rights obligations), and distinguish a state’s failure to put forth an accreditable delegation from an effective suspension from the U.N. as an organization. This solution would require drawing the line between a state delegation’s ineligibility for failure to meet certain qualifications and a state’s ineligibility for participation in the United Nations. Under one possible delineation, any group of persons could theoretically apply as the rightful representatives of a member state. A state itself would only be suspended or expelled, however, if the rightful representatives of a state were found to have acted contrary to the U.N. Charter. Of course, this solution presents new questions. In the South Africa case, for example, the Credentials Committee barred the state’s delegation from participation in the U.N. General Assembly because the delegation did not represent the state’s population. Under the model proposed here, the Credentials Committee’s choice not to accredit the delegation would also mean that that delegation did not consist of the “rightful” representatives of the state. If that were true, then the U.N. Security Council would no longer have the power to expel the state from the U.N. entirely. Even so, creating a distinction between delegation criteria from state membership allows the possibility of a “true” representative of a state’s population to step into an abusive regime’s place. This was the case for Libya in 2011, when the Credentials Committee’s chose to offer Libya’s U.N. seat to the National Transitional Council over the Gaddafi regime. As some scholars have noted, “the Credentials Committee has [historically] rejected credentials submitted by authorities that usurped power by political force.” One final consideration is whether the Credentials Committee should have the power to determine who is the “rightful” representative of a state. Perhaps a better check on accurate representation would be to only credential delegations produced by freely and fairly elected governing authorities, without other eligibility criteria, making delegation credentialing as objective as possible.
 Rick Gladstone, Quandary at U.N.: Who Speaks for Myanmar and Afghanistan? N.Y. Times (Sept. 11, 2021) https://www.nytimes.com/2021/09/11/world/un-ambassadors-myanmar-afghanistan.html.  U.N. Upholds Decision Denying Taliban, Myanmar Junta’s Request for Representation Voa News (Dec. 6, 2021) https://www.voanews.com/a/un-upholds-decision-denying-taliban-myanmar-junta-s-requests-for-representation-/6341750.html.  Gladstone, supra note 1.  Dan Ciobanu, Credentials of Delegations and Representation of Member States at the United Nations, 25 Int’l Compar. L. Q. 351, 353 (1976).  U.N. Charter art. 5.  Id.; see also U.N Charter art. 6.  U.N. Charter art. 6.  U.N. Charter art. 21.  Id.  Rules of Procedure of the General Assembly, Rule 29, U.N. Doc. A/520/Rev.15 (1985) [Hereinafter U.N.G.A. Rules of Procedure].  Id. (emphasis added).  Viljam Engstrom, Credentials and the Politics of Representation: What’s in it for the UN? EJILTalk! (Oct. 11, 2021) https://www.ejiltalk.org/credentials-and-the-politics-of-representation-whats-in-it-for-the-un.  Ania Zolyniak, UN Representation in an Era of Revitalized Multilateralism, CFR Blog (Oct. 6, 2021) https://www.cfr.org/blog/un-representation-era-revitalized-multilateralism.  Robert Alden, South Africa is Rebuffed by U.N., but Not Expelled, N.Y. Times (Oct. 6, 1973) https://www.nytimes.com/1973/10/06/archives/south-africa-is-rebuffed-by-un-but-not-expelled-south-africa.html.  Id.  Farrokh Jhabvala, The Credentials Approach to Representation Questions in the U.N. General Assembly, 7 Calif. W. Int’l L.J. 615, 633 (1977) https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1834&context=cwilj.  Suellen Ratliff, UN Representation Disputes: A Case Study of Cambodia and a New Accreditation Proposal for the Twenty-First Century, 87 Calif. L. Rev. 1207, 1207(1999).  Id.  See Jhabvala, supra note 17, at 630.  U.N. Gives Libya Seat to National Transitional Council, France 24 (Sept. 17, 2011) https://www.france24.com/en/20110917-united-nations-UN-gives-libya-seat-former-rebels-national-transitional-council.  Zolyniak, supra note 13. The views expressed in this post represent the views of the post’s author only.