The Context: Identifying Government Representatives Through Credentials Procedures

In principle, each IO has its own practice on recognizing government representation. Although IOs are established by a treaty or other international legal instrument, they form largely self-contained legal orders with their own “rules of the organization,” comparable to the constitutions of states.Footnote ² Therefore, the acceptance of the credentials in a particular IO is to be distinguished from the recognition of governments under general international law.Footnote ³ A delegation’s act expressing support for recognizing the credentials of a specific government is part of the collective act of the organ of that organization.Footnote ⁴ That act does not mean that the delegation is willing to entertain formal legal relations with the government in the international legal order.Footnote ⁵ Its relations with the accredited representatives are confined to the respective IO’s legal order, which may deviate from the criteria for government identification under general international law.Footnote ⁶

The recognition of credentials is prescribed in the rules of procedure of the relevant organ of the IO. As comprehensive coverage of different credential procedures is beyond the scope of this essay, the focus will lie on the UN, whose rules many other IOs and intergovernmental conferences have replicated. Article 27 of the Rules of Procedure of the UN General Assembly (UNGA) stipulates:

The Provisional Rules of Procedure of the UN Security Council address credentials in Rules 13 to 17.Footnote ⁸ Similarly, Article 42(1) of the Statute of the International Court of Justice (ICJ) provides that “[t]he parties shall be represented by agents,”Footnote ⁹ with further details contained in Rules 38(3) and 40 of the Rules of the Court.Footnote ¹⁰

The procedure of submitting and examining credentials depends on the characteristics and functions of each organ. The Secretary-General examines Security Council credentials on an ad hoc basis when a new government representative takes the seat of a member, whereas credentials for the UNGA must be presented annually before the start of each session. At the proposal of its President, the Assembly appoints a Credentials Committee of nine members (Rule 28), which has traditionally included China, the Russian Federation, and the United States.Footnote ¹¹ After deliberating behind closed doors, the Credentials Committee submits a report to the UNGA, containing recommendations on whether to accept, reject, or defer a decision on the credentials. The UNGA then proceeds to approve the report, with or without a vote, and possibly with amendments.

The Politicization of Credentials Procedures in Cases of Contested Government Representation

While initially conceived as a simple and technical process, the recognition of credentials has become a tool to fight out political controversies over government representation. Soon after the creation of the UN, the case of China revealed that the UN Charter and the rules of procedure of the UN principal organs were insufficient to deal with multiple claims to governmental authority. As the Indian delegate noted, “[n]one of the rules [in the Provisional Rules of Procedure of the UN Security Council] indicates what is to be done when any question arises as to which is the recognized Government of any particular State.”Footnote ¹² The Security Council then referred the matter to the UNGA to ensure that “some uniform procedure … be established which could be adopted by all the organs of the United Nations.”Footnote ¹³

The UNGA established an Ad Hoc Political Committee, which prepared a draft resolution containing various criteria to determine government representation, namely: (1) effective control over territory and acceptance by the population; (2) willingness to carry out membership obligations; and (3) establishment through internal processes in the member state.Footnote ¹⁴ However, the Committee could only agree on the text of the draft resolution after an Egyptian amendment suggested replacing the criteria with the broad formulation that rival claims to governmental authority “should be considered in the light of the Purposes and Principles of the Charter and the circumstances of each case.”Footnote ¹⁵ The UNGA adopted the amended draft as resolution 396 (V) on the “Recognition by the United Nations of the representation of a Member State” in 1950.Footnote ¹⁶

Still, the case of South Africa revealed that Resolution 396 (V) did not lead to more uniformity among UN organs. By cementing the political nature of the credential procedure, the resolution undermined the Security Council’s role in recommending the suspension and termination of membership under Articles 5 and 6 of the UN Charter. Although South Africa did not present dual credentials, the UNGA was of the view that “the South African régime [sic] has no right to represent the people of South Africa.”Footnote ¹⁷ In 1974, the UNGA voted in favor of rejecting South Africa’s credentials following the recommendation of its Credentials Committee.Footnote ¹⁸ While the Security Council could not come to an agreement on South Africa’s membership status,Footnote ¹⁹ the president of the UNGA interpreted the rejection of credentials as “tantamount to saying in explicit terms that the General Assembly refuses to allow the South African delegation to participate in its work.”Footnote ²⁰ This interpretation contradicted prior legal advice by the UN Legal Counsel,Footnote ²¹ resulting in heavy, but ultimately fruitless, criticism by several member states.Footnote ²² The Legal Counsel had emphasized the procedural nature of the credential procedure, explaining that the rejection of credentials “where there is no question of rival claimants” would deprive a member state of its membership rights and privileges “in a manner not foreseen by the Charter.”Footnote ²³

The explicit rejection of South Africa’s credentials was an outlier, but it highlights that the UNGA’s practice on government representation does not follow clear criteria. In some cases, the UNGA accepted the credentials of contested governments with territorial control.Footnote ²⁴ In other situations, such as Haiti and Sierra Leone, the UNGA recognized the credentials of democratically elected governments in exile.Footnote ²⁵ After the 1956 Hungarian revolution, the UNGA approved the Credentials Committee’s recommendation to “take no decision regarding the credentials,”Footnote ²⁶ and in situations like Cambodia,Footnote ²⁷ Guinea,Footnote ²⁸ and more recently Myanmar and Afghanistan, it has “deferred” a decision on credentials.Footnote ²⁹ Pending such a decision, the UNGA may allow one of the rival governments to be seated provisionally pursuant to Rule 29 of its Rules of Procedure, or decide that “no one would occupy the seat of that country.”Footnote ³⁰

As illustrated by the case of Myanmar after the coup d’état in 2021, the UNGA’s inconsistent practice has led to fragmentation within the UN and across the UN system. While deferring a decision on the dual credentials received from Myanmar, the UNGA maintained the status quo, thus allowing the exiled National Unity Government (NUG) to remain seated. Pursuant to resolution 396 (V), UN organs and specialized agencies “should … take … into account” the UNGA’s “attitude” in situations of dual representation.Footnote ³¹ However, in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), the ICJ accepted the change in respondent government to the military junta by the stage of its preliminary objections judgment.Footnote ³² Likewise, a representative of Myanmar’s military junta was given the floor at a session of the UN Human Rights Council, a subsidiary organ of the UNGA.Footnote ³³ Other IOs in the UN system have tried to follow the UNGA approach by deferring a credentials decision, which meant in some instances that Myanmar’s seat in the relevant organ was left empty.Footnote ³⁴

Weighing the Costs and Benefits of Criteria on Government Representation

The fragmented practice across the UN and UN system organizations reveals the more general dilemma between idealism and pragmatism that IOs face when dealing with contested claims to government authority. On the one hand, the organs of the organization may condemn the conduct that led to the unconstitutional change in government because this may align with their respective mandates. On the other hand, the organization needs to ensure its effective functioning and therefore engage with one or the other government representative. States may be caught in a similar dilemma of withholding de jure recognition of an unconstitutional government while interacting with de facto authorities for practical reasons.Footnote ³⁵

Several arguments speak in favor of developing more detailed criteria for government representation in IOs.Footnote ³⁶ Consistency and transparency provide for greater legal certainty as a basic tenet of the rule of law and good governance at IOs. The World Bank has adopted publicly available procedures that set the parameters of the Bank’s engagement with de facto governments.Footnote ³⁷ Clear criteria will also make it easier for other UN organs and organizations within the UN system to follow the UNGA’s practice. In 2024, the Credentials Committee of the International Labour Conference expressed “regret in relation to the continued ambiguity on the question of representation of Myanmar,” which precluded the participation of employers and workers of Myanmar in the Conference, and “note[d] that in the absence of guidance from the United Nations General Assembly, it may need to make its own determination.”Footnote ³⁸ Building on Resolution 396 (V), more substantive criteria for government representation could strengthen compliance with the Purposes and Principles of the UN, particularly when the Security Council is in a stalemate regarding the suspension or termination of a state’s membership. Suggestions have been made that credentials of the Russian Federation and Israel should be rejected in view of their grave violations of the UN’s foundational rules.Footnote ³⁹

Nonetheless, the characteristics of the UN make it difficult to agree on criteria to identify governments. As explained in a 1950 UN Secretariat memorandum on government representation, “[a]s an Organization which aspires to universality, [the UN] must of necessity include States of varying and conflicting ideologies.”Footnote ⁴⁰ The domaine réservé of the state has shrunk since the creation of the UN, and democratic representation and human rights compliance have been factors in government recognition under international law.Footnote ⁴¹ However, the sovereign equality of its member states remains a bedrock of the UN, and many member states guard against the UN’s intervention into their (and others’) internal affairs, as prohibited by Article 2(7) of the Charter. If anything, UN membership has become more diverse since 1950 when the UNGA attempted to elaborate criteria in its Ad Hoc Political Committee. In contrast to the UN Charter, the constituent instruments of smaller and more recently established regional organizations are more likely to include criteria on government representation,Footnote ⁴² reflecting a greater normative consensus among their members.