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LEGAL OPINION

I. Brief Background:

The Charter of the United Nations (“UN”) nor the Dumbarton Oaks Proposal does
not contain an express provision prohibiting, permitting, or regulating the question of
withdrawal of member states from the UN. When the question was brought up in
Committee I/2 whether withdrawal should be expressly provided for in the Charter,
nineteen states voted affirmatively and twenty-two states voted negatively.1 Learning
from the earlier failure of the League of Nations, the omission of a withdrawal clause was
done to prevent the threat of withdrawal from being used as a form of political blackmail,
or to evade obligations under the Charter of the UN.

In the entire history of the UN only Indonesia attempted to withdraw from the
organization. On 20 January 1965, the Indonesian Deputy Prime Minister and Minister of
Foreign Affairs informed the UN Secretary General that after the seating of neo-
colonialist “Malaysia” as a member of the Security Council, the Government of Indonesia,
after very careful consideration, had taken the decision to withdraw from the UN.2

A letter from the Indonesian Government and addressed to the UN Secretary


General stated, inter alia, that “in the circumstances which have been created by colonial
powers in the United Nations so blatantly against our anti-colonial struggle and indeed
against the lofty principles and purposes of the United Nations Charter,” the Government
“felt no alternative had been left for Indonesia but withdrawal from the United Nations”.3

The UN Secretary General then merely noted the decision of the Indonesian
Government and expressed hope that Indonesia would resume full cooperation with the
organization and resume participation in its activities.

After a coup in Indonesia later that year, the Ambassador of Indonesia to the
United States addressed a letter to the UN Secretary General informing him that his
government “has decided to resume full co-operation with the United Nations and to
resume participation in its activities starting with the Twenty-First Session of the General
Assembly.”4 Thus, the questions raised by the first case of withdrawal from the UN were
resolved by treating it as if it had not been a withdrawal at all.

II. Legal Question:

Whether there is a legal basis for the withdrawal of a member state from the UN?

III. Answer:

The answer is Yes.

IV. Ratio

1
Kelsen, Hans. “Withdrawal from the United Nations.” The Western Political Quarterly, vol. 1, no. 1, 1948,
pp. 29–43. www.jstor.org/stable/443041.
2
Schwelb, Egon. “Withdrawal from the United Nations: The Indonesian Intermezzo.” The American
Journal of International Law, vol. 61, no. 3, 1967, pp. 661–672. www.jstor.org/stable/2197461.
3
U.N. Doc. A/5857; S/6157, January 21, 1965.
4
U.N. Doc. A/6419; S/6498, September 19, 1966.

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Exceptional Circumtances

Although Committee I/2 agreed that no specific withdrawal clause should be


included in the Charter of the UN, the same committee, by thirty eight votes, decided
to include this in its report:

The Committee adopts the view that the Charter should not make
express provision either to permit or to prohibit withdrawal from the
Organization. The Committee deems that the highest duty of the nations
which will become Members is to continue their cooperation within the
Organization for the preservation of international peace and security. If,
however, a Member because of exceptional circumstances feels
constrained to withdraw, and leave the burden of maintaining
international peace and security on the other Members, it is not the
purpose of the Organization to compel that Member to continue its
cooperation in the Organization. It is obvious, particularly, that
withdrawals or some other forms of dissolution of the Organization
would become inevitable if, deceiving the hopes of humanity, the
Organization was revealed to be unable to maintain peace or could do so
only at the expense of law and justice.5 (Emphasis and underscoring
supplied)

According to this commentary then, any member state has the right to
withdraw from the UN “because of exceptional circumstances”. However, since
the Charter of the UN did not confer the competence upon a special organ any
member state is authorized to decide this question for itself.6 Simply put, any
member state has the right to withdraw from the UN whenever it deems it
necessary to withdraw from it.7

The same commentary provides an example on what these exceptional


circumstances are, the first case cited by the commentary is when “the
Organization was revealed to be unable to maintain peace or could do so only at
the expense of law and justice”. However, since the Charter of the UN failed to
decide who is competent to decide on whether the UN was able to maintain peace,
the member state has the right to decide this question for itself.

Rebus Sic Stantibus

It is a generally accepted opinion that an international treaty which is


concluded with the purpose of setting up an everlasting condition of things cannot
be denounced by a contracting party if this treaty does not provide for the
possibility of unilateral withdrawal.8 The only exception to this rule is the
application of the principle of rebus sic stantibus.

This principle means “a vital change of circumstances may be of such kind


as to justify a party in demanding to be released from the obligations of an
unnotifiable treaty.”9 In turn, “vital change of circumstances” means that the

5
UNCIO, Report of the Rapporteur of Committee 1/2 on Chapter III, Membership, June 24, 1945, Doc. 1178, p. 4.
6
See note 2.
7
Id.
8
Id.
9
Id.

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obligations stipulated in the treaty imperil the existence of the party which
demands to be released.

Therefore, under this principle a state may withdraw from a treaty which
has no withdrawal provisions only if there has been some substantial unforeseen
changes in circumstances.

Hence, a member state of the UN may unilaterally withdraw from it if a


fundamental change of circumstances occur with regard to those existing at the
time of the conclusion of the treaty.

Article 56 (1) Vienna Convention on the Law of Treaties

Article 56 (1) of the Vienna Convention on the Law of Treaties provides that
if a treaty does not explicitly provide for the possibility of withdrawal, withdrawal
is not possible unless the parties to the treaty intended to admit of that
possibility or a right of withdrawal may be implied from the terms of the treaty.

In the drafting of the Charter of the UN there is clear evidence that the
drafters intended to admit of the withdrawal by member states.

In the deliberations of drafting Article 108 of the Charter of the UN, the
Committee and the Plenary of the Conference adopted the commentary of
Committee I/2.10 According to the commentary, withdrawal might occur in
exceptional circumstances. The declaration went on to state that where the
organization was unable to fulfil its role of maintaining peace or where a member
was unable to accept an amendment that had come into force, or in cases where
an amendment was accepted by a majority of the Assembly but failed to secure
sufficient ratifications to bring it into force, members could withdraw.11

Therefore, there is incontrovertible evidence that during the drafting of the


Charter of the UN the ones drafting did intend to admit the possibility of
withdrawal by member states. Considering the foregoing, the application of
Article 56 (1) of the Vienna Convention on the Law of Treaties is possible.

10
Akande, Dapo, Withdrawal from the United Nations: Would it have been lawful for the Philippines, available at
http://www.ejiltalk.org/can-the-philippines-withdraw-from-the-un/ (last accessed Jan. 15, 2017)
11
Id.

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