Expulsion on the Merits
There is no circumstance in which the UN Charter expressly requires the expulsion of a Member. While UN Charter Article 4 allows the UN to admit a country as a new Member if it is “peace-loving,” no authority has interpreted Article 4 to mean that a Member, once admitted to the UN, must remain peace-loving in order to remain a Member. In any event, the UN long ago came to treat the “peace-loving” requirement as more formal than real. Then there is Article 6 providing that a Member “which has persistently violated the Principles contained in the… Charter may be expelled” (emphasis added). Article 6 does not require expulsion. To expel a Member, the UN must form a judgment that the Member’s conduct amounts to persistent violation of the UN Charter. That judgment is one of legal character, but there is also a requisite policy choice.
On the merits, the facts compel the legal judgment that Russia is a persistent violator as contemplated in Article 6. Russia’s atrocities in Ukraine exceed any in Europe since 1945 and at least rival the worst of the UN era. It is the aggressive intent behind Russia’s war, however, that imparts unusual gravity to the matter. The post-1945 legal order rests on the proposition, which enjoys practically universal acceptance, that boundaries, once settled between States, do not change except by agreement between States. Using force to settle a bona fide dispute over borders is a violation of international law; using force to vindicate an ambition of territorial aggrandizement unfettered from any cognizable legal dispute is an attack on the system of law. There is no legal dispute concerning Ukraine’s borders, which the parties settled in terms clear beyond cavil. In its war against Ukraine, Russia does not pursue a legal claim of any kind. Instead, it both declares in word and pursues in fact its intention to destroy a country of 43 million people and to subject vast lands and resources to its rule. It was precisely to prevent that kind of violation of law that led the Allies to establish the UN following World War Two. If the Members of the UN judge Russia’s aggression as anything but a persistent violation of the principles of the Charter, then they will have rendered the Charter nugatory.
Members of the UN will also have implied their acceptance of the arrangement by which the Security Council in December 1991 welcomed Russia to fill the Permanent Member seat reserved by Charter Article 23(1) for a representative of the USSR. Belarus, Russia, and Ukraine agreed at that time that the USSR had “as a subject of international law… ceas[ed] its existence.” The agreed position that the USSR had ceased to exist does not comport with descriptions of Russia in 1991 having “continued” the legal personality of the USSR by an automatic operation of law. Doubts have been expressed whether even a further agreed arrangement could have produced a constitutionally valid succession of Russia to the USSR seat, and even if one sets those doubts aside, it is not plausible that any such arrangement would survive such manifest violations of international law as those for which Russia is responsible.
The current violations for which Russia is responsible have policy repercussions beyond the damage they inflict on the UN Charter. When Russia’s leaders speak of restoring the Tsarist empire, they directly threaten the many countries that the empire once ruled. When they threaten nuclear war, Russia tells would-be-aggressors elsewhere, and potential victims too, that Ukraine erred when it relinquished a nuclear arsenal in 1994 under the Budapest Memorandum in return for a Russian pledge toward its security and, by necessary inference, that only the foolhardy observe commitments to nuclear non-proliferation. There is also the dangerous example set by Russia’s baseless purported annexations of Ukrainian territory—acts that disregard the 1991 mutually agreed settlement of post-Soviet borders between Russia and the other former Soviet republics. If the UN treats such aggression as a mere garden-variety law violation, then it will throw in doubt post-independence borders in scores of places, in particular across the “global South,” and auger a new era of intractable territorial demands and war. It will also erode the credibility of the Security Council, as Russia continues its aggression against Ukraine with weapons procured from North Korea and Iran, despite the prohibition on arms trade with North Korea and Iran imposed by resolutions of the Security Council itself. Then there are Russia’s violations of the UN grain deal—violations in furtherance of Russia’s strategy to use food as a weapon against third countries, including some of the poorest in the world. To say that Russia’s aggression threatens countries outside Europe is not speculation; it is a fact. Expelling Russia would demonstrate that the UN rejects Russia’s threats and would signal to other countries that Russia’s aggression should be treated as an aberration, not a precedent.
Expelling Russia would serve other immediate policy goals as well. By expelling Russia, Ukraine and its supporters would acquire a bargaining chip. Unlike territorial concessions, which would derogate the internationally recognized borders of Ukraine and reward Russia for its armed aggression, expulsion from the UN would be a bargaining chip acquired at Russia’s expense. Another immediate policy goal served by expulsion is that it would open the door to action in the Security Council; by removing Russia, the Council would free itself of the disruptive effect of Russia’s Permanent Member veto. In the absence of Russia’s veto, the Council could establish a global mechanism for comprehensive and compulsory sanctions against Russia and to freeze, seize, and re-allocate Russian assets. This would resemble the mechanism constituted in 1991 to compel Iraq to pay compensation for the injuries its war against Kuwait had caused. The Council also might adopt an international criminal procedure to address war crimes, as it did in 1993 for the former Yugoslavia. States are currently exploring multilateral mechanisms that do not rely on the Council, but the Council is the most-tested tool for measures of this kind.
A Procedure to Address the Aggressor
Expelling Russia from the UN, however, if it is expulsion in the Article 6 sense, would be well-nigh impossible—unless Russia loses the USSR’s Permanent Member veto. To expel a Member, Article 6 requires a two-thirds vote of the General Assembly and a substantive vote of the Security Council—i.e., a Security Council vote subject to the Permanent Member veto. If Members sought expulsion, Russia would veto.
Unlike its predecessor, the League of Nations, the UN has never expelled a Member. Though Article 6 has never been used and is all but impossible to use where it is a Permanent Member of the Security Council that is the persistent violator, Article 6 is not the only means at the UN’s disposal for effectively unseating a country. The United Nations in four cases has curtailed the participatory rights of a Member by other means.
First, after the USSR invaded and imposed a puppet regime on Hungary (1956), the General Assembly refused to allow that regime’s representatives to participate in Assembly proceedings for three subsequent years. The refusal was backed by reference to its Credentials Committee—the body that determines whether diplomats whom a Member sends to represent it have arrived in proper form.
The General Assembly again referred to credentials in 1971, this time to remove Taiwan’s representatives and replace them with Communist China’s. While not formally expelling a Member State in the sense that Article 6 contemplates, the General Assembly practically excluded Taiwan from all UN participation from 1971 onward.
The next time the General Assembly referred to its credentials procedure to prevent a Member from participating was in 1974. A whites-only government ruled South Africa under racial apartheid, a system that deprived the overwhelming majority of the country’s population of political representation and human rights. Consequently, the General Assembly rejected South Africa’s credentials. South Africa thus, for practical purposes, was excluded from the UN.
Finally, after the Socialist Federal Republic of Yugoslavia collapsed in the early 1990s, the UN curtailed the participation of the successor state, the Federal Republic of Yugoslavia (FRY). FRY’s serious violations of international law, including its failure to prevent genocide in Bosnia, influenced the UN’s approach to FRY representation at that time.
In each of these cases, with the exception of Taiwan, the General Assembly had been confronted by a Member involved in flagrant disregard of the Charter. In none of them did the General Assembly rely on expulsion procedure but, instead, improvised under its credentials procedure to limit or suspend a Member.
The General Assembly addresses the credentials of representatives of Members under its Rules of Procedure, as does the Security Council under its Provisional Rules of Procedure. Rule 27 of the General Assembly’s Rules and Rule 17 of the Security Council’s Provisional Rules provide, in similar terms, for objection to credentials. Any Member of the Assembly or of the Council may object to the credentials of a representative in the respective organ. Where objection is made, the organ decides the matter as one of procedure. In the Council, decisions on matters of procedure are not subject to Permanent Member veto. Nine votes of the Council’s fifteen Members constitutes the majority required for a decision.
Herein is a procedural path that other Member States could use to remove Russia from the Security Council. As recalled above, suspension under credentials procedure has been the remedy in several cases in the General Assembly. The Security Council has yet to use credentials procedure the same way, but no consideration of principle prevents it from doing so. If another Member were to raise objection under Rule 17 to the credentials of Russia’s representative, and if a nine-Member majority decided to sustain the objection, then Russia for all practical purposes would be unseated from the Council. As a matter of the politics of the Council, attaining a nine-Member majority is no mean feat. However, it is not unattainable; the Council voted 11 to 1 against Russia on February 27, 2022 to convene an Emergency Special Session of the General Assembly, the first time the Council has convened such a session in forty years. If they were to act in similar solidarity on Russia’s credentials, then the Council’s Members would achieve an important legal and policy goal.
The UN’s two chief political organs have procedures to prevent a State from exercising rights, including voting rights, in those organs. The record shows how those procedures can be used all but to remove a wrongdoer. It remains to be seen whether the UN will use those procedures to hold Russia to account for the persistent and flagrant violations of international law for which that State is responsible.
