Chapter VI. Selected legal opinions of the secretariats of the United Nations and related intergovernmental organizations

SUMMARY

A. Legal opinions of the Secretariat of the United Nations (issued or prepared by the Office of Legal Affairs) 1. Practice of the General Assembly with regard to the examination of credentials submitted by Member States 128 2. Decision taken by the General Assembly at its thirty-ninth session to treat the question of apartheid as an important question within the meaning of Article 18 of the Charter of the United Nations—Question of the majority required for the adoption by the General Assembly of decisions in this regard at future sessions of the Assembly 130 3. Conference convened pursuant to a decision of the Governing Council of the United Nations Environment Programme—Question of participation in such a conference in the absence of express provisions on the matter in the convening decision—Practice followed in this respect as regards conferences convened by the General Assembly 131 4. Question whether the Committee on the Exercise of the Inalienable Rights of the Palestinian People can send missions to Governments in the light of General Assembly resolution 39/49 A and the Committee's general mandate 132 5. Question whether the presiding officer of a conference held under the auspices of the United Nations may conduct proceedings in a language other than one of the official languages of the conference 133 6. Adoption of the agenda of the Commission on Human Rights—Question whether, under the rules of procedure of the functional commissions of the Economic and Social Council, a representative of a State not a member of... (see full summary)

 
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SELECTED LEGAL OPINIONS OF THE SECRETARIATS OF THE UNITED

NATIONS AND RELATED INTERGOVERNMENTAL ORGANIZATIONS

  1. Legal opinions of the Secretariat of the United Nations (Issued or prepared by the Office of Legal Affairs)

    1. PRACTICE OF THE GENERAL ASSEMBLY WITH REGARD TO THE EXAMINATION OF CREDENTIALS SUBMITTED BY MEMBER STATES

      Letter to a scholar

      In response to your request, we are transmitting herewith a note containing replies to the various questions listed in the questionnaire enclosed with your letter concerning the practice of the General Assembly of the United Nations with regard to the examination of credentials submitted by Member States. We trust that the information thus provided will be of assistance to you in connection with the preparation of your study on the practice of the General Assembly with regard to the examination of credentials.

      12 February 1985

      Replies to a questionnaire concerning the practice of the General Assembly with regard to the examination of credentials

    2. Pursuant to rule 28 of the rules of procedure of the General Assembly and the practice established under that rule, the Credentials Committee is appointed at the opening of each session by the Assembly on the proposal of the temporary President, who is usually the outgoing President. The President submits a proposal concerning the nine States to be appointed to serve on the Credentials Committee after appropriate consultations with interested delegations. In recent years China, the Union of Soviet Socialist Republics and the United States of America have been, in accordance with a well-established practice, represented on the Credentials Committee at each session of the General Assembly. Apart from these three members, the remaining six members are normally selected as fol-lows: two from the African Group, two from the Latin American Group, one from the Asian Group and one from the Group of Western European and Other States. Accordingly, the Credentials Committee appointed at the thirty-ninth session is composed as follows: Bhutan, China, Cuba, Equatorial Guinea, Italy, Ivory Coast, Paraguay, Union of Soviet Socialist Republics and United States of America.

    3. Credentials received by the Secretariat are checked to ensure compliance with the requirements of rule 27 of the rules of procedure and duly registered and filed. When the Credentials Committee meets, the Secretary-General submits a memorandum to it on the status of credentials received for representatives of Member States authorized to represent their countries at the session then in progress.

    4. The role of the Credentials Committee is to examine the credentials of representatives within the context of rule 27 of the rules of procedure on the basis of information provided to it by the Secretary-General and to report to the General Assembly on its findings and recommendations. The Credentials Committee reviews generally the status of credentials received in respect of the representatives of all States participating in the session on the basis of information submitted to the Committee by the Secretary-General and also examines any question concerning the credentials of representatives that may be specifically referred to it by the General Assembly.

    5. It frequently happens that credentials for a delegation are submitted after the opening of a session of the General Assembly. In such cases the delegations concerned are not precluded from taking their seats in the Assembly hall. Under rule 29 of the rules of procedure, all representatives are entitled to sit provisionally, even if an objection has been made concerning their admission to the session in progress, until the Credentials Committee has examined the credentials in question and reported thereon to the Assembly and the Assembly has taken a final decision on the matter.

    6. The Credentials Committee does not normally itself physically examine credentials submitted by States. It only does so exceptionally in individual cases if the need arises. All credentials received are however available for examination by any member of the Committee who may wish to do so.

    7. The ruling of the President of the General Assembly in 1974 prevented the delegation of South Africa from participating in the twenty-ninth session of the General Assembly. South Africa has on a number of occasions attempted to participate in subsequent sessions but the Assembly has rejected the credentials submitted by the South African Government and as a consequence, on the basis of the precedent established at the twenty-ninth session, its delegation has not been permitted to participate in the work of the General Assembly. The position adopted by the General Assembly has not however affected the status of South Africa as a Member of the United Nations. It continues to be represented at Headquarters by a permanent representative whose credentials have been accepted by the Secretary-General and its representatives, who continue to enjoy the same privileges and immunities as representatives of other Member States, have been invited on several occasions to participate in the work of the Security Council.

    8. At the twenty-eighth session of the General Assembly, the Assembly approved the credentials of the representatives of Portugal, "on the clear understanding that they represent Portugal as it exists within its frontiers in Europe and that they do not represent the Portuguese-dominated Territories of Angola and Mozambique, nor could they represent Guinea-Bissau, which is an independent State". The relevant report of the Credentials Committee1 indicated the action taken by the General Assembly on that report. As a consequence of the General Assembly's action, the persons named in the credentials submitted by the Portuguese authorities were permitted to participate in the work of the Assembly at its twenty-eighth session as representatives of Portugal, excluding the Territories then under its domination in Africa.

    9. Each principal organ has its own rules and procedures for reviewing credentials of representatives authorized to participate in its work. Consequently decisions of the General Assembly concerning credentials are not automatically binding on other principal organs. However, the decisions adopted by the General Assembly with regard to credentials of representatives of Member States to sessions of the General Assembly provide authoritative guidance to other United Nations organs and conferences and in practice the decisions adopted by these organs and conferences always conform to the attitude adopted by the General Assembly in dealing with questions concerning representation and credentials. In this connection, attention is drawn to the provisions of General Assembly resolution 396 (V) of 14 December 1950 entitled "Recognition by the United Nations of the representation of a Member State". That resolution, which has particular relevance in situations where more than one authority claims the right to represent a Member State in the United Nations, reads as follows:

      "The General Assembly,

      "Considering that difficulties may arise regarding the representation of a Member State in the United Nations and that there is a risk that conflicting decisions may be reached by its various organs,

      "Considering that it is in the interest of the proper functioning of the Organization that there should be uniformity in the procedure applicable whenever more than one authority claims to be the government entitled to represent a Member State in the United Nations, and this question becomes the subject of controversy in the United Nations,

      "Considering that, in virtue of its composition, the General Assembly is the organ of the United Nations in which consideration can best be given to the views of all Member States in matters affecting the functioning of the Organization as a whole,

      "1 . Recommends that, whenever more than one authority claims to be the government entitled to represent a Member State in the United Nations and this question becomes the subject of controversy in the United Nations, the question should be considered in the light of the Pur-poses and Principles of the Charter and the circumstances of each case;

      "2. Recommends that, when any such question arises, it should be considered by the General Assembly, or by the Interim Committee if the General Assembly is not in session;

      "3 . Recommends that the attitude adopted by the General Assembly or its Interim Committee concerning any such question should be taken into account in other organs of the United Nations and in the specialized agencies;

      "4. Declares that the attitude adopted by the General Assembly or its Interim Committee concerning any such question shall not of itself affect the direct relations of individual Member States with the State concerned;

      "5 . Requests the Secretary-General to transmit the present resolution to the other organs of the United Nations and to the specialized agencies for such action as may be appropriate."

    10. DECISION TAKEN BY THE GENERAL ASSEMBLY AT ITS THIRTY-NINTH SESSION TO TREAT THE QUESTION OF APARTHEID AS AN IMPORTANT QUESTION WITHIN THE MEANING OF ARTICLE 18 OF THE

      CHARTER OF THE UNITED NATIONS—QUESTION OF THE MAJORITY REQUIRED FOR THE ADOPTION BY THE GENERAL ASSEMBLY OF DECISIONS IN THIS REGARD AT FUTURE SESSIONS OF THE ASSEMBLY

      Memorandum to the President of the General Assembly

    11. Reference is made to the letter, dated 31 October 1985, addressed to you by the Chairman of the Special Committee against Apartheid on the question of the majority required for the adoption of decisions under agenda item 35 concerning apartheid.

    12. In his letter, the Chairman of the Special Committee against Apartheid indicated that the Special Committee was of the view that the decision adopted by the General Assembly at its thirtyninth session to the effect that draft resolutions and proposals under the apartheid...

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