In 2007, the 30th International Conference of the Red Cross and Red Crescent was held in Geneva. As with many of its predecessors, organizers had to cope with difficulties concerning participation entitlements for either states or National Societies. The reasons for their respective difficulties vary somewhat, owing to the character of National Societies within the International Red Cross and Red Crescent Movement (‘the Movement’) and their distinction from states as parties to the Geneva Conventions. This article will not address National Society issues, which are handled within the Movement itself. Instead, it will concentrate on problems of state participation, which have sometimes been of such political gravity that they have led to International Conferences being postponed or even cancelled.
Which entities are eligible to participate under the banner of statehood?Footnote 1 Who is entitled to represent an existing state where government authority (or its legitimacy) is in dispute? These questions have aroused controversy to an extent that few substantive issues have matched, and the Conference is certainly not alone in having to navigate them. Indeed, when disagreements regarding statehood or legitimacy arise, international fora frequently become a strategic platform for entities to assert a right to have their say in international relations, and for opponents to ensure that they do not receive recognition. Although the settings may vary, the storylines are essentially the same. In considering how these questions may be dealt with at the International Conference, it is therefore appropriate to examine the reaction of other comparable fora.
Participation in the assemblies of international organizations
In order to draw a comparison, the fora considered here are the plenary decision-making assemblies of international organizations (be they intergovernmental or mixed, as in the case of the International Conference of the Red Cross and Red Crescent).
The special characteristic of the International Conference that needs to be taken into account in this examination is that it is not a conference of members of a body: it brings together, on an equal basis, the members of the International Red Cross and Red Crescent MovementFootnote 2 and the states parties to the 1949 Geneva Conventions. Hence the issue of membership of an organization and accompanying rights and responsibilities does not arise – this article addresses instead the perhaps wider issue of representation at the Conference itself.
It should also be noted that the Movement's traditions and statutes require all participants in the International Conference to act in accordance with the Fundamental Principles of the Red Cross.Footnote 3 The principles of independence and neutrality provide an assurance that the Movement and the bodies created by it can and will work in such a way as to carry out its mission, which is above all to prevent and alleviate human suffering wherever it may be found. While this should enable the Movement's conferences to stand apart from the political disputes that disrupt other organizations, the reality of the modern international community is that no organization can steer free of them entirely.
The world's first global international organizations of the type now common were formed to achieve specific state objectives in specialized fields.Footnote 4 They were based on the responsibility of governments to take action to secure those objectives. The aim of the International Conference of the Red Cross, on the other hand, has from the very start been to support the ideals of the founders of the International Red Cross, which were enshrined in an agreement by states to respect the inviolability of the wounded on the battlefield. The origin of the International Conference is thus different from those of the assemblies of international organizations.
Many organizations now seek to unite states on the basis of certain regional, political, or technical characteristics and restrict membership accordingly. The participation of states in the International Conference of the Red Cross and Red Crescent, however, is universal, for it encompasses all states parties to the 1949 Geneva Conventions.Footnote 5 For purposes of comparison with the International Conference, this article will therefore first focus on the policies and practices of organizations that also aspire to be universal in nature, namely those that have a purpose of universal interest, are open to all states or state-like entities,Footnote 6 and seek to achieve universal membership.Footnote 7 Such organizations are primarily to be found in the United Nations (UN) system (i.e. the UN itself and its specialized agencies), although other intergovernmental or similar organizations – such as the World Trade Organization (WTO), the International Organization for Migration (IOM), INTERPOL, and the Inter-Parliamentary Union (IPU) – may also come into this category. Some universal international non-governmental associations in which members or delegations represent a country (but not a government) may also serve as points of reference.Footnote 8
Who participates in the assemblies of international organizations?
Generally speaking, participation in international organizations is determined by their rules of membership (i.e. those governing accession to the organization's constitutive instrument).Footnote 9 Even within the category of organizations that aim to be universal in nature, there are some general minimum participation requirements that can be inferred, namely statehood, acceptance by a majority of the organization's members, and subscription to membership obligations. In addition, there is the procedural requirement of presentation of credentials by the delegation, in order to ensure its representation at a particular assembly or conference.
Statehood
In intergovernmental organizations, formal statehoodFootnote 10 is a prerequisite for full membership, which in turn entitles a state to full participation in the organization's plenary decision-making body. As for the UN, only ‘states’ may be admitted as membersFootnote 11 – this membership then opens the way to participation as a member with full voting and procedural rights in the General Assembly.Footnote 12 The UN's specialized agencies generally take their lead from the UN itself,Footnote 13 but there can be – and are – differences, especially when a state has chosen not to become a member of the UN but wishes to participate in specialized agency activities as a member.Footnote 14 Even in cases where the specialized agencies allow non-members of the UN to join and participate in their assemblies, this permission is usually still only accorded to statesFootnote 15 or groups of states.Footnote 16 The World Meteorological Organization (WMO), on the other hand, allows for full membership (and thus full participation in the World Meteorological Congress)Footnote 17 by territories not responsible for the conduct of their international relations – but this does require the co-operation of the state responsible for the territory's foreign affairs.Footnote 18 This provision has allowed for full participation in the World Meteorological Congress by the British Caribbean Territories, French Polynesia, Hong Kong, Macau, the Netherlands Antilles, Aruba, and New Caledonia.Footnote 19 However, Niue is listed as a member state of WMO despite the fact that its foreign affairs concerns are managed by New Zealand.Footnote 20
The UN Convention on the Law of the Sea (UNCLOS) also lists several types of territories without full statehood that may ratify the Convention, albeit subject to very detailed qualifications, inter alia the competence to enter into treaties on subject matters regulated by UNCLOS.Footnote 21 These territories may then participate fully in the Assembly of the International Seabed Authority.Footnote 22 Similar distinctions apply to the UN Framework Convention on Climate Change (UNFCCC).Footnote 23 Both those global conventions include Niue as a party although New Zealand retains some responsibility for its foreign affairs.
Until 1947, the Universal Postal Union (UPU) also allowed quasi-sovereign entities to become members.Footnote 24 This was changed as a result of its transformation into a UN specialized agency, since at the time the UN did not consider the UPU's standards of admission to be clear enough;Footnote 25 the wording ‘sovereign country’ was consequently introduced into the UPU Constitution.Footnote 26 Quasi-sovereign entities that were granted membership before 1947 were allowed to retain their equal rights and duties – today, only the UK Overseas Territories, Netherlands Antilles, and Aruba still benefit from this arrangement.Footnote 27
The practice that has developed over the years has seen different organizations frame different membership criteria according to their specific characteristics, as well as the impact of those characteristics on the universality necessary for the achievement of their objectives. This helps explain, for example, the membership of Niue in WMO, and of the Holy See's membership of a wide range of UN specialized agencies but not of the UN itself.
Notwithstanding the requirement of statehood, there have been exceptional cases in which entities that were not strictly states under customary international law were admitted to the UN and its specialized agencies. First, it should be noted that at least four founding states of the UN were not yet independent in 1945.Footnote 28 Second, there is Namibia's admission to the International Labour Organization (ILO) before it gained full independence.Footnote 29 According to Kirgis,Footnote 30 the latter decision was legally questionable because it ran counter to the ILO Legal Adviser's opinion, which was supported by earlier jurisprudence in the Danzig case.Footnote 31 However, Kirgis considers that Namibia was a distinguishable case, owing to its status, because in effect the UN Council for NamibiaFootnote 32 was thus to be granted membership.Footnote 33 Osieke confirms that this exceptional move was a countermeasure to South Africa's occupation of Namibia, rather than a modification of the ILO's traditional practice of seeking confirmation of the independence of prospective members who are not part of the UN.Footnote 34
Kirgis holds that, even though each agency must interpret for itself the criterion of statehood in its statutes (which, he concedes, may lead to conclusions different from customary international law), the political entity that is to be admitted must at least have sufficient control over its territory and people to carry out the functions required of it by the agency – that is, to fulfil the ‘essential, ongoing obligations of membership’.Footnote 35 This conclusion does not sit happily with his own concession with regard to Namibia as a special case for the ILO, and it can also lead to confusion about the differences between a state as a member and the government that provides its representation: there are many cases in which the government does not have sufficient control of its territory to carry out the obligations of membership, but there has been no suggestion that this should lead to the state's membership being terminated.Footnote 36
Outside the UN system, universal intergovernmental organizations such as INTERPOL and the IOM share the approach of limiting full membership to states only.Footnote 37 The WTO, on the other hand, expressly also provides for the possibility of full membership by any ‘separate customs territory’ that autonomously conducts its external trade relations and the other matters provided for in the WTO Agreement.Footnote 38 Such a territory's accession, like that of a state, is to take place ‘on terms to be agreed between it and the WTO’.Footnote 39 In this way it was possible for Chinese Taipei to be admitted to membership as the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu (shortened to Chinese Taipei).Footnote 40 Similarly, by virtue of this provision, Hong Kong and Macau were admitted while still under the control of the United Kingdom and Portugal respectively, and retain independent membership to this day, despite their reversion to China.Footnote 41
The IPU is also distinct in that it not only offers membership to the parliaments of sovereign statesFootnote 42 but also to the parliaments of ‘territorial entities’. However, this is subject to the UN's recognition of the entity's statehood aspirations, and the entity's admission as an observer in the UN.Footnote 43 Indeed, as will be seen below, deferral to the UN's position is a common default practice in international organizations (both governmental and non-governmental), even where they are not affiliated to the UN.
Recognition by members
Over and above the objective requirements of statehood, recognition by a majority of other member states is a necessity for purposes of membership in international organizations.Footnote 44 In most cases, the majority requirement is set at two-thirds.Footnote 45 Some organizations also require that an executive body make a recommendation to the plenary body on admission of a new member.Footnote 46 Recognition by a majority of members in the plenary body is perhaps the most important criterion for an aspiring participant, as majority approval in effect sets a working boundary determining which entities are considered states qualified to act as members and which are not. It also serves to circumvent a good many disputes in that regard, by at least ensuring that a large majority of fellow members agree to interact with an entity on an equal basis within the organization.
Subscription to obligations
As membership in an international organization is usually based on accession to its founding instrument, acceptance of the obligations therein is evidently a sine qua non for membership.Footnote 47 Besides acceptance of the treaty obligations in the founding document, a few organizations require members to adhere to certain principles: for example, the UN Charter allows membership to ‘peace-loving states’ that accept the Charter obligations;Footnote 48 the IOM Constitution requires a ‘demonstrated interest in the principle of freedom of movement’;Footnote 49 and the UNIDO Constitution specifies that membership is open to ‘states which associate themselves with the objectives and principles of the Organization’.Footnote 50
In practice, inability to fulfil obligations is seldom a factor that is invoked in admissions processes,Footnote 51 except in financial and trade institutions.Footnote 52 However, fulfilment of obligations has a bearing on participation in decision-making bodies, as most organizations provide for restriction of a member's participation if obligations are not fulfilled. In the case of substantive obligations, the sanction may be suspensionFootnote 53 or expulsion,Footnote 54 while non-fulfilment of financial obligations may lead to a limitation of voting rights.Footnote 55 As suspension may preclude a state from exercising its rights as a member in general,Footnote 56 it can also affect the capacity to hold office in the organization.
This lenient position on actual ability to fulfil obligations is further illustrated by the situation of the failed state: that is, a de jure state that has lost its ability to exercise its sovereignty effectivelyFootnote 57 (although this question usually arises after a state has become a member of an organization). Such a loss of effective sovereignty has not been considered as affecting a state's formal entitlement to participate in international fora. Even in the extreme case of Somalia, which for a long period had no national government and was unrepresented in international fora,Footnote 58 the country's temporary lack of representation came about on procedural grounds, because it did not present its credentials from 1991 to 2000, and, as stipulated by Article 19 of the UN Charter, because its finances were in arrears it could not vote.Footnote 59
This stands in contrast to the position of de facto states that merely lack recognition, highlighting the greater weight given to recognition in the eyes of fellow member states as opposed to a real ability to fulfil obligations.
Credentials
Many organizations have a committee that examines the credentials of delegates who attend meetings of their plenary bodies.Footnote 60 These committees do not in principle examine whether a particular state is entitled to participate, but whether delegations are properly accredited to represent that state. In some cases, however, competing delegations seeking to represent the same state, with credentials signed by persons asserting the right to sign that document, can pose questions on which the credentials committee will be expected to make a recommendation to the plenary body. If a delegation's presence is challenged by another member, but not by a competitor from the same country, the disputed delegation is usually allowed to be seated provisionally with full participation rights, pending a decision by the plenary body.Footnote 61
Rejection of credentials is therefore not an official means of limiting participation. It has, however, been used as a means of excluding or seeking to exclude South African delegations from the UN, as well as the delegations of some other governments. This process has seen credentials committees assume a political role not envisaged by the original constitutive instruments of the organizations; indeed, the UN Legal Counsel confirmed the view that using the rejection of credentials as an effective suspension of membership rights would result in the General Assembly's Rules of Procedure being used to circumvent the UN Charter itself.Footnote 62
The position of international non-governmental associations with country-based representation
In the decision-making assemblies of international non-governmental organizations (INGOs), the individual members are not organs of state. However, it can be seen that even those bodies – where the composition of membership is often country-basedFootnote 63 – frequently adopt a position in specific admission cases analogous to that of intergovernmental assemblies, and even defer directly to the latter's position (primarily that of the UN). It is increasingly common for INGOs to use the UN as the default standard when considering politically sensitive membership applications.
As for the requirement of statehood, FIFA's statutes are particularly explicit, requiring that the country represented at its assemblies be an ‘independent State recognised by the international community’.Footnote 64 FIFA's admission regulations require an applicant to present documents demonstrating that it represents such a state, as well as reports on, inter alia, the political structures in its country.Footnote 65 It has been possible for FIFA to accept membership from such entities as Scotland, Hong Kong, and the Faroe Islands, as well as Palestine and Chinese Taipei.Footnote 66
The statutes of the International Olympic Committee (IOC) require merely that delegations or national committees participating in the assembly represent a ‘country’.Footnote 67 This apparently does not preclude the IOC from recognizing ‘independent territories, commonwealths, protectorates and geographical areas’.Footnote 68 It is thus quite free to make its own decisions on admission, and has often taken decisions that do not necessarily reflect the general position of other organizations (including the UN). In sensitive cases, however, the IOC appears to have been careful to ensure that participation is arranged on terms accepted by those concerned, for example in ensuring that the National Committee of the People's Republic of China would be the sole representative of China, with Chinese Taipei able to be fully represented in the assemblies of the IOC and other sports federations.Footnote 69 Palestine, Macau, and Hong Kong are also permitted to participate independently in the IOC: an important consideration may be that they were admitted before 1996, when a new IOC rule requiring international recognition came into effect.Footnote 70 Perhaps because of this rule, the IOC now seems more likely to follow the UN's position in politically charged cases such as that of Kosovo.Footnote 71
Many INGOs also use UN nomenclature to describe their members: for example, the World Organization of the Scout Movement (WOSM) uses the term ‘The former Yugoslav Republic of Macedonia’ to designate that country. Similar in structure to the sports federations discussed above, the WOSM is composed of National Scout Organizations on the basis that there can be only one organization in any one country.Footnote 72 Its constitution does not define ‘country’, but the membership lists include such designations as ‘China, Scouts of (headquartered in Taipei)’ and ‘Palestinian Authority’.Footnote 73
The International Union for Conservation of Nature (IUCN), a rare example of another forum (besides the International Conference) where states and non-governmental entities interact on an equal basis,Footnote 74 has directly specified its alignment with the UN position in its statutes, despite not being a UN body. The IUCN requires states taking part in its Congress to be either members of the UN or one of its specialized agencies or the International Atomic Energy Agency, or parties to the Statute of the International Court of Justice.Footnote 75 This express renvoi to the UN position reflects the fact that states themselves (which would generally also be UN members) are also directly involved in the admission process.Footnote 76
Members of assemblies of INGOs are also required to subscribe to certain obligations and principlesFootnote 77 but, being free of state involvement in their decision-making, they are usually able to be much more flexible on questions such as membership.
Treaties
Most treaties simply refer to ‘states’ as the entities capable of signing, ratifying, or acceding. Depositaries, when considering whether to accept an instrument lodged by an entity that is not a member of the UN or a specialized agency, usually refer the instrument to other states parties to obtain an opinion as to whether the instrument should be accepted.Footnote 78 Ratification of a treaty may then confer a right to participate in assemblies tasked with reviewing and implementing the treaty.Footnote 79
A few more recent treaties, however, have looked towards the inclusion of entities other than states (albeit intergovernmental organizations). For example, the UNFCCC expressly extends the ability to ratify or accede to states and ‘regional economic integration organizations’.Footnote 80
Alternative means of participation: bringing everyone to the table
One common trend is that the general members-only rule is not inflexible when it comes to participation in the broader sense. The need for flexibility has increased over the years, particularly as the growth of regional institutions with significant legislative or quasi-legislative functions has brought new players on to the international decision-making scene. Another factor has been the recognition on the part of some international organizations, particularly those concerned with environmental issues and trade, that it is not possible to achieve adequate international action without involving entities other than states in the assemblies that make the rules. This is also important with regard to reporting on action taken.
For instance, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal included the former European Community as a party, as this entity had decision-making powers relevant to the subject matter of the treaty. In addition, by an accommodation designed to ensure strong worldwide control of hazardous wastes, Taiwan is in effect represented in the deliberations through an NGO, the Institute of Environment and Resources.Footnote 81
As the de facto affairs of states are seldom as clear-cut as the rules for membership, organizations have had to cope with situations not envisaged when the constitutions were written. They have done so by acting pragmatically as far as possible, and seeking agreement from the governments most directly concerned to advance the mission of the organization itself. This corresponds to the suggestion that since entities that take active part in certain areas of international relations have a duty to implement the relevant rules and regulations, they should somehow be accommodated in rule-negotiation processes and supervisory mechanisms.Footnote 82
In recognition of this, it is now more and more common for constitutions of new international organizations to allow for non-states to become parties. It is less easy to find instruments that provide participation rights for entities that have not been recognized as sovereign states by a majority of members,Footnote 83 but various forms of accommodation are usually possible through such mechanisms as observer status, associate membership, and technical/advisory co-operation.
Observer status
Observer status is the principal means by which many international organizations (intergovernmental and non-governmental alike) permit a limited form of participation in their assemblies by entities that cannot – or do not wish to – become members, but nevertheless may have an interest in following the proceedings. Observer status generally entails limited participation rights in plenary assembliesFootnote 84 but a wider range of opportunities in committees and technical meetings. Observers do not enjoy the right to vote or to hold office,Footnote 85 although they can sometimes be elected to positions within the technical committees where their representation adds value.
The granting of observer status or the invitation of an observer usually requires the approval of a majority of the plenary conference or assembly itself,Footnote 86 except in cases where criteria are set upon which an executive committee or the chief executive of the organization can act.Footnote 87 Another option is offered by INTERPOL: police bodies that are not members of the organization may be invited as observers when nominated by the Executive Committee and invited by both the state hosting the conference and the Secretary-General.Footnote 88
The types of entities that may be admitted as observers usually fall into the categories of non-member states,Footnote 89 groups of states,Footnote 90 and international governmental or non-governmental organizations.Footnote 91 The International Fund for Agricultural Development (IFAD) and UNIDO assemblies have considerable additional latitude, as they are also empowered to invite ‘any other entity’Footnote 92 or ‘other observers’Footnote 93 respectively. In practice, this discretion has only been used so far to invite non-member states eligible for membership, and the Holy See.Footnote 94 In contrast to the above predefined frameworks for admitting observers, the United Nations has evolved different practices for its various principal organs and for subsidiary bodies. It is not easy to compare these practices, but it can be said that the UN General Assembly has accorded observer status either to states that are not members of the UN (Switzerland was a case in point until 2002) or to organizations and other entities through the adoption of specific-purpose resolutions. Relatively few organizations have achieved this status, and it is largely restricted to intergovernmental organizations or to those that have a strong governmental relationship or treaty basis.Footnote 95
NGOs are not normally granted observer status at the UN General Assembly. The Charter of the UN envisaged that their main contribution would be through the Economic and Social Council (ECOSOC).Footnote 96 This has meant that the granting of such status in the General Assembly is usually seen as connoting something much more than the consultation envisaged for NGOs with ECOSOC,Footnote 97 and has led to consideration being given to differentiated forms of observer status in other organizations. The trend, however, is to find ways to seek increased involvement in international debates by institutions beyond government, as shown by the 2004 Report of the Panel of Eminent Persons on UN–Civil Society Relations (the Cardoso Report).Footnote 98 By the end of 2009, over 13,000 civil society organizations were listed with the UN Department of Economic and Social Affairs under procedures established by ECOSOC.Footnote 99
In the context of recognition of the right to self-determination and the UN's decolonization mission, observer status was also used as a means of affording national liberation movements a measure of participation in the UN General Assembly, despite the fact that they did not meet formal statehood criteria. These entities were granted such a status because they were regarded as ‘states in statu nascendi’,Footnote 100 that is, as representatives of future states, and also of their populations, that were not deemed to be truly represented by the power that controlled their territory.
Koenig notes a ‘well-established cooperation’ between the United Nations and regional organizations with regard to the observer status of national liberation movements.Footnote 101 The General Assembly confirmed its practice of granting observer status to liberation movements recognized by the former Organization of African Unity (OAU).Footnote 102 It also called on states hosting other international conferences to afford to liberation movements recognized by the OAU and the League of Arab States (as well as holding observer status in the UN) ‘the facilities, privileges and immunities necessary for the performance of their functions’ contained in the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.Footnote 103
It was in this context that the African National Congress (ANC) and the Pan-African Congress (PAC) of South Africa, as well as the South West African People's Organization (SWAPO), were invited as observers to the UN General Assembly.Footnote 104 Following recognition of the right of self-determination of the people of Palestine,Footnote 105 the Palestine Liberation Organization (PLO) was also granted the right to participate in plenary deliberations on the question of Palestine.Footnote 106 Since 1988, however, the term ‘Palestine’ has been used as the official designation in place of the name of the organization, but without prejudice to the observer status of the PLO itself.Footnote 107 Today, the delegation's quaintly described status qualifies it as an ‘other entit[y] having received a standing invitation to participate as [an] observe[r] in the sessions and the work of the General Assembly and … maintaining permanent offices at Headquarters’.Footnote 108 Yet, in protocol terms, this status comes immediately after the member and observer states, and outranks all other observer entities.
Recognition as an observer by the UN General Assembly has repercussions in other assemblies because it applies automatically to many other UN bodies (such as ECOSOC)Footnote 109 and specialized agencies (such as UNIDO),Footnote 110 as well as to international organizations that take their guidance from the UN (e.g. the IPU).Footnote 111 Some older international organizations (e.g. the ILO) have constitutions and rules of procedure that were written before the evolution of the General Assembly observer process and do not easily make the same accommodations.
In the realm of INGO assemblies, a notable example of differentiated participation levels exists in the ISO. Participants in the ISO General Assembly – each of which is the body most representative of standardization activities in its country – are classified as member bodies, correspondent members, or subscriber members. While member bodies have full participation rights in the assembly, the latter two may attend as observers but do not participate in the development of standards. The differentiation is based on technical considerations (i.e. whether the country has a developed standardization activity).Footnote 112 Thus, observer status does not necessarily bring with it such political connotations as in some other organizations.
Associate membership
Associate membership is a means of limited participation by territories that do not control their own international affairs. It ensures the representation of some population groups that may have concerns distinct from those of the rest of their state, as reflected in the WHO Constitution, which specifies that representatives of an associate member must come from the native population of the territory.Footnote 113 The fact that relevant territories are designated as not being responsible for their own international affairs seems to imply that eligible entities must have an elevated degree of independence in their domestic affairs (were this not the case, then any province or, indeed, municipality within a state would be eligible). Therefore, aside from ensuring representation, the status of associate membership is also a means of taking into account these entities' greater responsibility for their own populations. Similarly to observer status, associate membership normally entails all participation rights except for the rights to vote on decisions and to hold office.Footnote 114
Admission as an associate member usually requires application (or consent) by the state responsible for the entity's international affairsFootnote 115 or the UN,Footnote 116 and/or the approval of the organization's members.Footnote 117 In practice, it is therefore not an option for territories whose sovereignty is disputed. Indeed, the desire of states to ensure that this does not serve as a way in for such entities is clearly reflected in the amendments to the UN World Tourism Organization (UNWTO) Statutes. These formerly permitted territories not responsible for their own external affairs to become associate members of UNWTO,Footnote 118 but in 2005 the statutes were amended so that associate membership by territories was confined to those which already had this status at 24 October 2003.Footnote 119 From then on, associate membership became limited to intergovernmental organizations, NGOs, and other associations.Footnote 120 An indication as to the reasons can be gathered from a further simultaneous amendment, which bars the Assembly from considering the candidature of any entity headquartered in a territory that is the subject of a dispute before the United Nations, or whose activity is related to such a territory, unless no member state objects.Footnote 121 Thus, states not only closed this door to disputed entities, but firmly shut the windows as well.
The United Nations Organization has developed its own way of handling associate membership differently in its regions. The Economic and Social Commission for Asia and the Pacific has nine associate members, including two countries that are states for treaty and full membership purposes in some other organizations, and others that are parts of another country.Footnote 122 A comparable pattern is in place in Latin America and the Caribbean, but not in the other regions.Footnote 123
Technical/advisory co-operation
Some organizations have made arrangements as they have seen fit for representatives of other entities to participate on purely technical matters, in such a manner that there is no elevation of status of that entity. For example, in the ILO a state responsible for a non-metropolitan territory's international relations may appoint advisers from the territory to their delegation to advise on matters relating either to that territory's self-governing powers or to non-self-governing territories.Footnote 124 Such advisers' participation rights are very limited – they may not vote and may only speak in very restricted circumstances;Footnote 125 furthermore, inclusion of such advisers is entirely at the discretion of the responsible state. Nevertheless, it is a model of participation that demonstrates how internal representation of particular territories in a depoliticized, technical role is employed to ensure that their specific interests are taken into account on matters of universal concern.Footnote 126
The WMO already has a broad approach to participation, allowing for full membership of territories not responsible for their own external affairs. However, owing to the technical nature of the organization, which requires coverage to be as wide as possible, the WMO President has the discretion to invite the director of any meteorological service (or any other individual) to attend and participate in the discussions of the Congress.Footnote 127 This is not limited to meteorological services of member states, meaning in effect that such an official from any territory at all could be invited.
Thus, the ILO and WMO have left open the possibility of participation by individuals representing an entity whose sovereignty is partial – or possibly even disputed, although it is unknown what the reaction would be if the relevant provisions were invoked to that effect. These arrangements seem to reflect the broader functionalist approach that has influenced the participation practices and policies of other technical bodies such as the UPU, the International Telecommunication Union, and the ISO. At the same time, the ILO and WMO provisions have seemingly aimed at minimizing the political impact of this representation by limiting the participation rights of the individuals concerned: in the former case, by effectively making them observers within a delegation; in the latter case, by allowing them only to participate in discussions without a vote.
Participation in the International Conference of the Red Cross and Red Crescent
The Movement's components – that is, the International Committee of the Red Cross (ICRC), the International Federation, and the National Red Cross and Red Crescent Societies themselves – and the states parties to the Geneva Conventions, each represented by one delegation, may all participate in the International Conference, the supreme deliberative body for the Movement.Footnote 128 States participate ‘in exercise of their responsibilities under those Conventions and in support of the overall work of the Movement’.Footnote 129 Each delegation has one vote,Footnote 130 thus placing states and components of the Movement on an equal footing.
Unlike other organizations, the Movement's constitutive document (the Statutes of the Movement) is not a treaty with parties. It is a document adopted by the International Conference in a decision-making process involving states and National Societies, the ICRC, and the International Federation. Furthermore, as noted above, the Movement itself does not include states, and the recognition of National Societies (and thereby the process of their entry into the Movement) is assigned by the Statutes to the ICRC alone,Footnote 131 albeit on the recommendation of the Joint ICRC/International Federation Commission for National Society Statutes (the Joint Statutes Commission).Footnote 132 This creates a difference as to how participants are admitted into the Conference. Whereas the constitutive documents of organizations normally require a majority of members to accept a new participant in their assemblies, the Geneva Conventions – like most other multilateral treaties – may be ratified by states through a unilateral act of accession;Footnote 133 conversely, National Societies become participants through the separate process of being recognized as members of the Movement.
Usually, the fact of being a party to the Geneva Conventions is a clear-cut, objective criterion, which should avoid controversies over determining the status of an entity within the Conference. Nevertheless, there have been participation disputes, which can be roughly divided into situations where a delegation's entitlement to represent an existing state party is contested (disputed legitimacy) and those where the entitlement of the entity itself to participate as a state has been called into question (disputed status). Cases of disputed legitimacy have included the competing claims of the People's Republic of China (PRC) and the Republic of China (ROC) to represent China, as well as the minority apartheid government's representation of South Africa. Disputed status has been the crux of the matter in the case of Namibia (which was under South African control) and Palestine.Footnote 134 The frameworks and precedents for dealing with these two types of issue will now be examined.
Disputed legitimacy
Disputes over admission to the International Conference of a delegation purporting to represent an existing state create fundamental problems for the Movement. Such situations raise issues that directly touch on the universality of the Movement, as well as on its neutrality. Should the Movement engage with de facto but unrecognized governments – or governments with inhumane policies – in this forum? Does inclusion or exclusion of an entity amount to taking a stance on the legitimacy of a government, thus possibly jeopardizing humanitarian operations? The highly volatile and divisive nature of such questions means that they can in turn easily threaten the unity of the Movement as participants polarize along political lines. Although such decisions may be taken mostly by state participants and thus not reflect the standpoint of the components of the Movement,Footnote 135 the Conference's decisions can certainly influence the perception of the Movement's neutrality, and thus its working relationship with certain authorities.
In practice, questions of which delegation should be invited to represent a country have first fallen to the Standing Commission (the Conference's trustee body, composed of ICRC, International Federation, and National Society representatives),Footnote 136 because it is charged with convoking delegations to the Conference.Footnote 137 In addition, it is capable of making interim decisions on such issues, because it has the broad mandate of interim settlement of disputes on interpretation of the Statutes of the Movement,Footnote 138 as well as to take ‘any measures which circumstances demand’ between Conferences.Footnote 139 It may also establish ad hoc bodies,Footnote 140 and hence could, for example, establish a body that could examine admission in more detail, such as a credentials committee. The Standing Commission's decisions are, however, subject to the final approval of the Conference. Disagreement with measures taken regarding admission has thus opened the way for heavily politicized debates that should have strictly no place in this humanitarian forum.
In the cases both of China/Taiwan and of South Africa under the apartheid system, it can be seen that the Standing Commission has leaned towards universality and to allowing participation of authorities that effectively have responsibility for implementing the Geneva Conventions in their territory, regardless of questions over the legitimacy of that authority. In the case of China, the Standing Commission initially took the same position as for other ‘divided states’ (e.g. North and South Vietnam, North and South Korea) and invited both the PRC and ROC delegations, each as the representative for the part of the territory that they controlled (i.e. effectively treating those parts as two states). This was initially confirmed by the Conference after a heated dispute.Footnote 141 However, the controversy continued in light of the parties' claims to each represent China in its entirety, and the Conference was postponed on this basis. Eventually, the UN resolution recognizing the PRC as the sole representative of ChinaFootnote 142 gave the Standing Commission grounds to decide not to invite the ROC delegation.Footnote 143
The case of South Africa was distinct in that it did not involve rival delegations. Instead, the issue was the Standing Commission's decision to invite the delegation of a non-representative and oppressive government to represent the country. The debate for the first time questioned ‘the representative character of the delegation of a government of a state which nobody denies is party to the Geneva Conventions’.Footnote 144 After a lengthy deliberation, the Conference voted in favour of suspension.Footnote 145 Nevertheless, critics were vocal, and fifty-one members of the Conference refused to take part in the vote, thus challenging its very legality.Footnote 146
The official record of this debate, along with the subsequent statements on the various delegations' positions,Footnote 147 is a striking illustration of the Fundamental Principles being invoked by each side for or against the participation of a government that was almost universally viewed as illegitimate. Those wishing South Africa to be suspended referred frequently to ‘humanitarian principles’ or even humanitarian law.Footnote 148 Those who were against suspension, on the other hand, argued that universality was essential in order to maintain dialogue with governments that do not respect humanitarian principles, in the hope of advancing humanitarian objectives.Footnote 149 In addition, concern was expressed that the suspension would jeopardize the neutrality of the Red Cross, and hence its humanitarian mission.Footnote 150 Thus the participants' obligation to respect the Fundamental Principles, during the Conference as well as at other times,Footnote 151 did nothing to defuse the debate.
Tempted as supporters may have been to hold up the suspension of South Africa as a triumph of the principle of humanity, political factors almost certainly came into play as well.Footnote 152 To date, this suspension from the Conference has remained a unique case, despite any number of violations of humanitarian principles around the world. Thus it has not set a precedent, and for good reason: the International Conference is unique in its nature as a non-political forum for humanitarian discussion among states and humanitarian organizations, and this could be jeopardized if the Conference were to make a habit of excluding participants because of their violations of humanitarian principles. Other fora exist today for participants to take a stand on a specific government's actions, whereas no other can bring states and humanitarian organizations together to work on the implementation of humanitarian law.
These examples show that any invitation to the Conference that is opposed by another member will in any event lead to a debate, for the Standing Commission does not view itself as ‘a direct instrument to settle disputes’,Footnote 153 and the measures that it takes – including the invitation of certain entities – are subject to the final decision of the Conference.Footnote 154 The importance of the Chairman's task of curtailing any ‘controversies of a political, racial, ideological or religious nature’Footnote 155 cannot therefore be understated.
Disputed status
The Conference has also faced situations in which the question is not the legitimacy of the delegation but the eligibility of the entity itself to claim that it is a state party to the Geneva Conventions. Entities of this kind have generally been allowed to attend the Conference as observers to enable them to be present while issues concerning them are discussed, thereby also defusing the inevitable debates over their status. Past examples of such entities that have attended as observers include pre-independence Namibia (the UN Council for Namibia was present as an observer in 1986)Footnote 156 and Palestine (the PLO was granted observer status).
Practice since the China debates has gradually seen a de facto acceptance of UN ground rules for what is and what is not a state. This is also the net effect of the Swiss decision not to proceed with the PLO's purported adherence to the Geneva Conventions in 1989. But, because of its linkage to the UN headquarters, it is a practice that has not adapted to the realities now perceived by the specialized agencies and a growing number of other intergovernmental organizations dealing with technical issues.
This dilemma is also shown by the way in which the Movement handles the granting of observer status in the International Conference. As the Standing Commission's power to invite observers is not restrictedFootnote 157 and little guidance is available from the Rules of Procedure,Footnote 158 it has developed its own more explicit criteria in this regard.Footnote 159 It divides observers into three categories: National Societies awaiting recognition and admission; international organizations, NGOs, and academic institutions; and the category on which we will focus, namely ‘States not yet parties to the Geneva Conventions and other political entities’.Footnote 160
The ghost of conferences past is manifest in the Standing Commission's criteria: when considering an entity from the third category for observer status, the Commission is required ‘to give special consideration to political issues that might be detrimental to the neutrality of the Conference and divert attention from humanitarian matters’.Footnote 161 In this process, it has been recommended that the Commission ‘seek the opinion of the International Federation and the ICRC, as well as advice from the Group of Ambassadors and Switzerland’.Footnote 162
It is also relevant to note the criteria for admitting observer NGOs and other organizations, as these are designed to prevent non-eligible political entities from gaining observer status through the back door of ‘government-operated NGOs’ (commonly known as GONGOs). A key requirement for admission is that their membership and activities must be of a ‘global, regional or international’ nature, thus excluding organizations that represent one ‘country’. Organizations that do not meet this criterion may, however, be invited as ‘guests’,Footnote 163 indicating that such entities would only be invited to such parts of the Conference as the Standing Commission or Bureau of the Conference decides that they may attendFootnote 164 and, unlike observers, are not granted any right to speak or to access documents.
One effect of these provisions and practices has arguably been to limit the ambition of universality. As we have observed, some other organizations have seen their own practices evolve so that entities such as GONGOs, whose participation might be essential to develop fully universal measures on the issues of concern to them, can be brought under their umbrella. Furthermore, the fact that the Movement does not have a system of associate membership also arguably limits its capacity to include the views of non-self-governing territories in regional and technical deliberations of relevance to them.
Conclusion
Although full participation in the assemblies of international organizations remains very much a question of majority acceptance of an entity's statehood, it could be said that concessions and compromises are part and parcel of the normal business of any universal organization. As such organizations involve the majority of the world's states in dealing with matters of universal concern, it can reasonably be expected that decisions taken in these fora will have an impact on non-member entities.
The latter will accordingly have an interest in at least observing the proceedings. Use of subordinate participation statuses has shown that the real issue is often the standing in which the entity is placed vis-à-vis member states and the status that this may be seen to imply. This explains why member states may not approve an entity's full membership but be satisfied to allow it to take part with observer status. Given the universal importance of the topics negotiated in and regulated by many international organizations, the impact of multilateral co-operation in these areas on the wellbeing of populations, and the growing interdependence of states in a globalized world, the inclusive ethos of universal organizations is more important than ever. Opportunities for non-member entities to participate in an observer capacity provide a useful way to extend that ethos.
In the interests of ensuring that all populations are represented in international arenas where their fundamental interests are at issue, cognisance should be taken of who is de facto in charge of safeguarding those interests, and provision should then be made for the responsible party to participate in some way in the relevant forum. This could be done either through increased use of existing alternative participation mechanisms (observer status in particular, as it is the most flexible), or through the negotiation of new forms of participation that would allow for a wider range of stakeholders to participate, while at the same time tailoring the conditions and effects of this participation so as to make it acceptable to member states (most notably, the depoliticization of such participation mechanisms by expressly detaching them from notions of sovereignty and rather linking them to more objective criteria, for example de facto control of relevant infrastructures, or exercise of certain powers or capacities).
In the case of the International Conference of the Red Cross and Red Crescent, certain specificities of this unique forum need to be taken into account when addressing participation questions. First, there is the Conference's underlying commitment to the Fundamental Principles, which is incumbent upon all participants. Although the Principles should be the guide for any decision taken on participation, the appearance in previous debates of a tension between neutrality and universality shows that this is easier said than done. Further study on the meaning of the principles in the context of the Conference would certainly provide a valuable guide for the future.
Second, the Conference's role as a forum for decision-making on humanitarian matters should be kept in consideration. The Conference's material scope is, on the one hand, expanding to areas where it may be more important to engage with a wide range of authorities, for example on matters such as epidemics and the management of natural disasters. On the other hand, the traditional and legal basis of the Conference remains international humanitarian law, which involves issues on which states have been resistant to engaging with entities whom they may regard as not having a base founded on adherence to the Geneva Conventions.
Third, and alongside the first two points, it follows that a minimum condition for the acquisition of observer status at the International Conference might need to be a form of written acceptance of the Geneva Conventions, at least insofar as they can apply to a non-party.
This thinking would have an impact on the existing arrangements for observers at the International Conference, namely international organizations and NGOs. This article does not canvass this point, but it is clear that new arrangements for non-member entities would need to address all such entities. Such new arrangements would need to take account of the importance that the Conference achieves through its unique ability to bring states and humanitarian actors (i.e. National Societies) together as equals, in order to discuss the humanitarian problems affecting the populations whom they represent.
The crux of the participation issue for the future lies in allowing a voice to those who do in fact have responsibility for populations, while at the same time taking care to maintain this unique line of communication between states and the humanitarian world.
