"Accredito" ergo sum: reflections on the question of representation in the wake of the Cambodian representation problem in the fifty-second session of the General Assembly.

AuthorBen-Naftali, Orna
PositionUnited Nations General Assembly

Between the Idea And the Reality Between the Motion And the Act Falls the Shadow T.S. Elliott, The Hollow Men

  1. INTRODUCTION

    In the shadow land between the procedural rules of the United Nations General Assembly concerning the accreditation of individual delegates(1) and the substantive rules of admission of States contained in the Charter,(2) lurks the unruly, quasi-rule political validation of representation by governments. Recently, Cambodia found itself obscured by these shadows once again and its seat in the fifty-second session of the General, Assembly was vacant.(3) The case of Cambodia offers a starting point for an analysis, both comparative and critical, of the problem of representation in the United Nations. The analysis suggests that, if the issue is to receive appropriate consideration, it must be brought to light as a substantive problem of legitimacy, rather than as a procedural matter of accreditation. It is further proposed that the time may have come for the United Nations to play its proper role as a collective legitimizing agent. A vacant seat means that while Cambodia remains a member State of the United Nations, the Cambodian people have no government authorized to represent them in the General Assembly as well as in other organs of the United Nations.(4) This is a situation of substantive consequences to the Cambodian people, to the status of Cambodia and to the authorities purporting to be the representative and legitimate government of Cambodia, yet one occasioned by a procedural decision to defer a decision as to which of the two rival delegations professing to represent Cambodia in the United Nations is to be accredited.(5) The silence of the Charter on the highly political matter of representation has thus once again reverberated in the corridors of power, as the echo of the procedural decision underscores its substantive nature.

    The issue of representation is substantively political because it arises whenever there is a challenge to the authority of a government. That challenge can be either internal (i.e., emanating from a situation of competing authorities within the State), or external, when the legitimacy of a government is challenged from sources outside the country, (i.e., governments of other States), but in both cases it questions the legitimacy of the government concerned.(6) The legitimacy of a government, in turn, arguably rests both on its ability to control effectively the territory and receive habitual obedience from the bulk of the population and on the perception that the control it exercises and the obedience it receives signify that its order is worthy of acceptance and thus of recognition.(7) Whereas effective control and routine obedience present variables open to a relatively objective verification process, the perception of the worthiness of a political order is a far more subjective standard. Nevertheless, subjectivity is not tantamount to arbitrariness, and it is possible to construct yard-sticks for assessing the worthiness of a government.

    The use of rules of procedure to provide solutions to substantive problems is not a phenomenon unique to the international legal system. In the context of the institutional framework of the United Nations, the silence of the Charter on matters of representation, arguably necessitates resort to other available means, including procedural rules, to enable the Organization to re]ate to developments in the international arena.(8) It is true that the application of procedural rules to substantive problems may not provide for a smooth legal ride, but it does not necessarily follow that the procedural tires are flat and cannot reach their destination safely: if there is a legal framework which provides for fairly determinate rules and, if said rules are applied in a manner that is coherent and consistent, they can persuasively claim to offer a legitimate solution to the problem of legitimacy of governments described above.

    But can the legal arena for the political contests be thus characterized? In attempting to answer this question, section II proceeds to outline the contours of the legal framework. The three challenges to the legitimacy of the Cambodian government offer an interesting perspective regarding the manner in which the rules within the legal framework have been applied over time in the Organization and are the focus of section III. The context of this discussion further allows for a comparative analysis with other cases where the United Nations was called upon to validate the legitimacy of alleged governments of Member States. This analytical review of practice allows for an assessment, in the concluding section, of the procedural resolution: is it but a legal mantle, designed to cover the nakedness of power-politics,(9) and achieving that objective with as much success as the Emperor's new clothes, or is it a legitimate, even if imperfect, solution? Can it be improved?

  2. THE LEGAL FRAMEWORK

    There are three aspects of States' participation in the political organs of the United Nations: membership of States, representation of governments and credentials of delegates.(10) The first aspect is regulated by relevant provisions in the Charter of the United Nations as well as by procedural rules;(11) the second aspect is regulated by rules of procedure;(12) and the third representation aspect is unregulated in either the Charter or the rules of procedure.(13)

    Theoretically, the silence of the Charter on the question of representation may be construed in two ways: either there is no lacuna and that which appears unregulated, in substance does express a legal regime wherein the United Nations is not empowered to pronounce on the representational rights of governments, or, there is a lacuna which cannot be tolerated and has to be filled. Ironically, while the first approach rests on an expansive view of law, as it deems that nothing is ever beyond law's reach, its application in practice has an effect as restrictive as it is unsatisfactory: it deprives the Organization of the ability to respond to challenges to the representational rights of governments. As such challenges do arise in practice and require a determination on the part of the United Nations, lest it loses its viability to react to important developments, the second approach has been overwhelmingly embraced, and the main effort had been directed at devising ways and means for bridging the gap.(14) This effort has produced a legal regime designed to deal with problems of representation.(15)

    Our analysis suggests that a legal regime governing questions of representation has to relate to the following elements: (i) definition of the problem: the type of challenges to representation to which the regime applies; (ii) determination of the best available means within the existing institutional framework for resolving challenges to representation; (iii) articulation of the criteria to be applied in making a decision; (iv) choice of the appropriate forum for decision-making; and, (v) delimitation of the type of actions to be taken and the consequences to be emanating therefrom. A determination of each of these elements affects the rest. The remaining part of this Section offers an analysis of each of these elements, as well as of the manner in which they are interrelated.

    As regards the definition of the problem, two types of challenges to the representative authority of a purported government may arise: an internal challenge emanating from a situation of competing authorities each claiming to be the legitimate agent for the State, and an external challenge to the legitimacy of a sole authority.(16) The latter may be divided into two subcategories: 1) doubting the very existence of the objective prerequisites of the authority, and 2) questioning its subjective qualifications.(17) Each and every type of challenge raises the issue of representation and arguably all have to be determined by the application of identical criteria,(18) but only the internal challenge arises directly in the context of the accreditation process.(19) One consequence of this categorization is that both the means and the forum best suited to deal with representation issues should be able to encompass all types of challenges to representation.

    Within the institutional framework of the United Nations, the means best suited for resolving the problem as defined above would have been an amendment to the Charter, supplemented by an amendment to the rules of procedure of both the Security Council and the General Assembly.(20) Such an amendment could have encompassed all types of challenges to representation, related accordingly to the other relevant aspects of the issue, including the substantive criteria for the determination of each type of challenge and an indication of the appropriate forum to apply said criteria. Such an amendment could have further eliminated the risk of a legal regime wherein procedural rules are extended to respond to substantive political issues in a manner that may contravene the basic principles of the Charter, ranging from intervention in the domestic affairs of States to the separation of powers between the Security Council and the General Assembly. Alas, this potentially most comprehensive, determinate and coherent option is yet to be translated into a reality in the institutional life of the United Nations.(21)

    A second best alternative in terms of normativity would have been an amendment to the rules of procedure. In practice, however, the means adopted as the vehicle articulating the legal regime to be applied to the question of representation was a General Assembly resolution.(22) Consequently, the legal regime thus established was constrained ab initio by that which is within the competence of the General Assembly to decide upon in light of the principles and provisions of the Charter.(23) Indeed, the General Assembly seems to have been cognizant of...

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