The airwar, Russia and the UN Charter Article 23(1)

[fdr]

Originally Posted by Lonewolf_50

Your lack of sources to support your fantasy are noted. When you cite sources for that action, I'll be interested.
"Well," as Judge Smails said, "We Are Waiting!"

As some background to the motion that has been reported to be drafted, note the European Journal of International Law commentary. Then read McLeod's commentary, and then look at the dates of the Alma-Ata Protocol. The details of the date when things happened there are pretty important to the matter, as is the fact that to this day, the Charter Article 23(1) has not been amended, and there is no legal right under the Charter as it stands for Russia to be sitting in the UNSC at all. Thats a point for litigation, and as indicated by McLeod it is the matter raised by Ukraine. (A draft motion for the UNSC and UNGA by another country has recently been mentioned, I can only recall that it was a surprise party).

It is an unusual situation to get to, but then Russia has made this an unusual matter. At the same time, ROC becomes the subsequent matter, as PRC is not an Article 23(1) member, ROC is, that is Taiwan. The fact that the UN has not taken action to date is that Russia's actions have not been sufficiently egregious, however, now they may be sufficiently unacceptable, threatening nuclear war to support a criminal enterprise of annexation of a sovereign country.

I am in fact looking for the document I read that covered the drafting of the challenge to Russia's credentials. The most striking takeaway of the document was the proposal did not come from a party that was expected, which at least means some countries have an interest in the application of the principles of the Charter. The action of the UNSC is the single greatest failure of the UN. All of the nice concepts fall to nothing as the belligerents are not automatically recused from action within the UNSC. Most UNSC PMs would be cautious about such a change, but it would act to make the system function. Adding suspensions to any related party pressuring another voting member could be included, to attempt to get towards equity.

https://www.ejiltalk.org/could-russi...nited-nations/

March 1, 2022

Could Russia be Suspended from the United Nations?

Written by Rebecca Barber


The General Assembly is currently meeting in Emergency Special Session on Ukraine, and will likely pass a resolution condemning Russia’s aggression, demanding the withdrawal of troops, and urging a peaceful resolution to the crisis. Such a resolution will be an important step, but also begs the question: if these appeals for peace are not heeded, what could be the Assembly’s next step?

The possibility of the General Assembly recommending sanctions has been considered in a previous post on this forum. This post considers the possibility of the Assembly going further still, and suspending Russia from the UN.

The possibility of a member state being suspended from the UN is described by article 5 of the UN Charter. That article states that: ‘a member of the UN against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council.’ In case of any ambiguity in the text of this article (which there really isn’t), the UN Office of Legal Affairs has confirmed that the General Assembly may only exercise its power of suspension if: (a) preventive or enforcement action has been taken by the Security Council against that member; and (b) the Council has recommended the suspension (see here, at p. 170).

Article 5 does not provide a basis for Russia’s suspension from the UN, because the Security Council hasn’t taken preventive or enforcement action against Russia, and even if it had, Russia would presumably veto a resolution recommending its own suspension. It’s not possible to get around the veto issue by arguing that a Security Council resolution recommending suspension would be procedural in nature – and as such, not subject to the veto – because article 18(2) of the Charter lists ‘the suspension of the rights and privileges of membership’ as an ‘important question’.

Article 5 of the Charter is not completely the end of the road on suspension, however.

There are two dimensions to a state’s participation in the UN: the actual membership of the state (the subject of article 5 of the Charter); and the representation of that state at the General Assembly’s sessions. Matters of representation are considered in the context of the General Assembly’s credentials process, which is the process by which the Assembly assesses the eligibility of individual delegates to represent their states at the Assembly’s annual sessions. The process is essentially procedural in nature. It is regulated not by the UN Charter but by the Assembly’s rules of procedure, which state that ‘[t]he credentials of representatives … shall be submitted to the Secretary General if possible not less than one week before the opening of the session’, and that they shall be ‘issued either by the Head of the State or Government or by the Minister for Foreign Affairs.’

While the credentials process is usually a procedural one, from time to time the process inevitably requires the General Assembly to make a judgment regarding the legitimacy of the government (or regime) that a delegate represents. Such is the case when two competing authorities claim at once to represent their state, as was the case last year in relation to Afghanistan (Taliban vs deposed government in exile) and Myanmar (junta vs National Unity Government). In such situations, the credentials process effectively gives the General Assembly the power to decide which authority should be regarded as the legitimate representative of the state – at least so far as the UN is concerned.

Russia, however, is not a case of competing authorities claiming at once to represent the same state, but one government seriously violating peremptory norms of international law as well as the principles of the UN. Can the credentials process feasibly be exploited to suspend a state in such circumstances, as a way of circumventing article 5? The answer is yes, because it has been done before.

The General Assembly has on two occasions used the credentials process to effectively suspend a state from the UN. The most recent was in relation to Cambodia in 1997, when the Assembly received credentials from two competing authorities, both claiming to represent Cambodia. The Assembly decided to defer its decision on credentials, explicitly on the understanding that Cambodia’s seat at the Assembly would remain temporarily unoccupied (see here and here). The particular circumstance pertaining to that decision was that there was a process of national reconciliation underway, which the Assembly did not wish to influence (see discussion here).

The much more pertinent example is South Africa in 1974. In the context of international condemnation of apartheid, in the early 1960s the General Assembly passed a resolution calling on the Security Council to consider expelling South Africa from the UN pursuant to article 6 of the UN Charter, however the proposal was not supported by the Council’s five permanent members. In the early 1970s the Assembly consistently declined to accept South Africa’s credentials (see here, for eg), and in 1974, the General Assembly President ruled that this meant that South Africa was excluded from participating in the work of the UN. Specifically, the President said that: ‘on the basis of the consistency with which the General Assembly has regularly refused to accept the credentials of the delegation of South Africa, one may legitimately infer that the General Assembly would in the same way reject the credentials of any other delegation authorised by the Government of the Republic of South Africa to represent it, which is tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work’ (see Jhabvala, p. 615). Thus, as Alison Duxbury explains, ‘in using the credentials process in this way, the General Assembly effectively sidestepped the article 5 requirement that both the major political organs of the UN must be involved in a suspension decision’.

The legality of the Assembly’s action in relation to South Africa is contested. A 1970 opinion of the UN Legal Counsel asserts that ‘the participation in meetings of the General Assembly is … one of the important rights and privileges of membership’, and that ‘suspension of this right through the rejection of credentials would not satisfy the [requirements of article 5] and would therefore be contrary to the Charter.’ On this view, with which several scholars agree (eg, Schermers and Blokker, p. 222), the Assembly’s exclusion of South Africa was clearly ultra vires. Other scholars disagree, however. Jhabvala, for example, asserts that the suspension of South Africa was intra vires, if only because of the ‘legal gap’ and ‘political latitude’ that characterises the credentials rules and process; and even Schermers and Blokker concede that ‘there is general disagreement’ regarding whether the credentials process can be used to exclude a state from the UN – they suggest that ‘generally Western countries reject’ such a possibility, whereas ‘other countries are mostly in favour of it’. Other scholars take a middle ground, regarding the Assembly’s practice on South Africa as perhaps not quite illegal, but as ‘sui generis, not as establishing a practice that substitutes the General Assembly for the Security Council as the UN organ empowered to suspend or expel members’ (Halberstam, p. 191).

Whatever view one takes on the question of legality, the fact is that the General Assembly has used the credentials process to exclude a state from the UN. On this point, it is pertinent to recall the well-established principle applicable to the interpretation of the constituent instruments of international organisations, that such organisations are – as a starting point at least – responsible for interpreting their own powers. In the case of the UN, this was made clear at the time of the drafting of the Charter. The question of which organ should be responsible for interpreting the Charter was assigned to a sub-committee, and the report of that committee – ultimately accepted – said that each organ of the UN was expected to ‘interpret such parts of the Charter as are applicable to its particular functions’ (see Goodrich, p. 251). Louis Sohn asserts simply that ‘if the General Assembly thinks action is necessary, it can take it.’ In relation to South Africa in 1974, the Assembly did think that action was necessary, and it did take it, and there is no reason in international law that it could not do so in again in relation to Russia/Ukraine. The credentials of Russia’s current representative to the UN were accepted by the General Assembly last year, but under the Assembly’s rules of procedure it is open to any member state to raise an objection to that representative, in which case he would remain seated provisionally, ‘until the Credentials Committee has reported and the General Assembly has given its decision’.

It’s unlikely to be the option pursued in the Assembly’s first resolution on Ukraine, but given the extent to which international law is being undermined, nothing should be off the table.



https://www.kcl.ac.uk/ukraine-invasi...curity-council

Ukraine invasion: should Russia lose its seat on the UN Security Council?

Andrew MacLeod Visiting Professor, Department of War Studies Kings College

25 February 2022

...Continuing states

But why did Russia get the USSR’s seat following its dissolution? In 1991, the Alma-Ata Protocol was signed by the majority of Soviet republics, declaring the end of the Soviet Union and agreeing that Russia would take over the USSR’s seat. Russia then wrote to the UN requesting that the name USSR be amended to Russian Federation and that nothing else would change.

International lawyers have questioned the legality of this and have debated whether the dissolution of the USSR should have dissolved its seat at the Security Council. This is what Ukraine is now arguing. The whole matter rested on whether Russia was the “Successor State” or a “Continuing State” under international law. In 1991, Alexander Vladimirovich Yakovenko – a recent Russian ambassador to the UK who was at that time a mid-level bureaucrat in the Ministry of Foreign Affairs in Moscow – wrote to argue that Russia should inherit the permanent seat.

He set out that a Successor State is a new country formed from the dissolution of an older one – and had no continuing rights or liabilities. All rights and liabilities would need to be renegotiated. A Continuing State, however, is the largest part of a country after a small part has broken away. It keeps the former rights and liabilities of the old country – including membership to international organisations and embassies. Yakovenko concluded Russia was the Continuing State.

In 1991, I worked as a young lawyer on a case before the High Court of Australia: Baltic Shipping v Dillon. A Soviet ship sank in New Zealand killing one crew member and causing harm to many Australian passengers. The Baltic Shipping Company was owned and insured by the Soviet government. But as the Soviet Union had ceased to exist, Baltic Shipping’s lawyers argued in court that the liability became uncertain because nobody knew who the real owners or insurers were. As the lawyers in the case, we then raised the question of Security Council membership. The Russian government quickly admitted liability for the sunken ship, not wanting to lose the Security Council seat.


LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970)

https://www.icj-cij.org/public/files...V-01-00-EN.pdf

"Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), the ICJ dealt with South Africa’s argument that SC Resolution 284 (1970), in which the Security Council requested the Court’s opinion, was invalid as it was not adopted by an affirmative vote of all five permanent members (the UK and the USSR had abstained, as had Poland). Article 27(3) of the UN Charter explicitly requires that UNSC resolutions (other than procedural decisions) be adopted with ‘the concurring votes of the permanent members’. South Africa’s contention that this resolution could not have been adopted — as an abstention is not the same as a concurring vote — was in accordance with the literal text of the UN Charter".

Comment:
It goes on to say that the counterargument can be made of acceptance of practice, however, that is a matter of litigation, the Charter is clear; Russia is not a listed member of the UNSC under Article 23(1), and has never been ratified as the continuing member, and is thus illegitimate. The failure of the UNGA and UNSC to act accordingly has been due to coercion with the implied threat of a nuclear state, and that argument would then obviate the defense that Russia has been "accepted" as the legitimate continuing member. In common law, a coerced practice is considered void, and that seems to have been overlooked by the apologists to Russia maintaining a seat in the UNSC.