A U.N. Security Council Permanent Member’s De Facto Immunity From Article 6 Expulsion: Russia’s Fact or Fiction?

By Dan Maurer
Friday, April 15, 2022, 12:38 PM....
....of the charter.

A Structural Interpretation of the U.N. Charter

This reasonable reinterpretation of Article 6 is strengthened by reading the expulsion rule in light of the charter’s related provisions. There are at least four places in the document to consider. To begin, there is clear enough evidence that the parties well understood and appreciated the potential scenario of a Security Council member having a conflict of interest in a matter it was responsible for resolving: Article 27(3) expressly requires that such a member abstains from voting on the investigation and pacific settlement of disputes in which it is a party. There is no exception available for a permanent member. Not dispositive of the expulsion question, but suggestive.

Next, recall the charter’s membership admissions rule in Article 4 quoted above. It complements the warning in Article 6 that “persistent violations” of the charter justify expulsion from the organization. Note that Article 4’s set of qualifications for admission to the U.N. and Article 6’s permission to expel a member for persistent violations of the charter have something in common. They both speak of the Security Council’s recommendation. More conspicuously, they both lack something in common—neither article says explicitly whether a recommendation by the Security Council must be made before a vote to admit or remove a member.

This plain reading of the text faces at least one obstacle. In 1950, the ICJ rendered an advisory opinion directly addressing the meaning of Article 4. The ICJ unequivocally determined that it limited the General Assembly’s admission discretion: that decision could only follow on the heels of a Security Council affirmative vote, which thus implied that no permanent member had exercised its veto power:
The text under consideration means that the General Assembly can only decide to admit upon the recommendation of the Security Council; it determines the respective roles of the two organs whose combined action is required before admission can be effected: in other words, the recommendation of the Security Council is the condition precedent to the decision of the Assembly by which the admission is effected.
To the court, this was the “natural and ordinary meaning” of the words. Nevertheless, the ICJ was not unanimous in its opinion: The dissent observed that conditions of modern international relations, the very conditions that led to the creation of the United Nations, force a reconsideration of how to interpret international law:
The text must not be slavishly followed. If necessary, it must be vivified so as to harmonize it with the new conditions of international life. When the wording of a text seems clear, that is not sufficient reason for following it literally, without taking into account the consequences of its application.
In other words, when a literal reading would lead to “unreasonable or absurd results,” and “run counter to the purposes of the institution,” the interpretation of the text must be read more broadly and contextually.

But assuming, arguendo, that a Security Council recommendation must be made first, neither provision reads as a constraint on the General Assembly’s discretion and decision afterward. Article 97, regarding the appointment of the U.N.’s secretary-general, follows a similar pattern: “appointed by the General Assembly upon recommendation by the Security Council.” This, also, looks like an affirmative recommendation from the council must precede the assembly’s opportunity to vote and appoint the secretary-general. In practice, this is usually the case. However, as early as 1950, the U.N. demonstrated its flexibility and broad understanding of the plenary power of the General Assembly: The Security Council was deadlocked over the reappointment of Norway’s Trygve Lie as the first secretary-general; despite the Soviet Union’s threatened veto, the General Assembly reappointed him to the office anyway.

Just as the ICJ observed six decades ago (“it is the General Assembly which decides and whose decision determines status”), the assembly need not submit to the council’s recommendation. Otherwise, the word “recommendation” is hollow, and not just in one article but in several. It would, inevitably and always, lead to “absurd results” and “manifest injustice” that “run counter to the purposes of the institution.” And if the General Assembly can disregard that recommendation, it is not obvious at all that a recommendation must be made, one way or the other, first.

There is a foreseeable, though relatively weak, objection to this view—one that also considers context and the changing character of international relations. It would say the particular phrasing or word choice of these two provisions is—in the real world of politics and diplomacy—irrelevant, or at best an academic puzzle. It would insist that the clause “upon the recommendation of the Security Council” should be construed, as most observers conclude today, as a limiting constraint on the General Assembly’s freedom of decision and its timing. This broad interpretation, empowering the Security Council at the expense of the General Assembly, is—the thoughtful objector would say—the most natural one when considering the gravity of the council’s peacekeeping mission and accepting the scope of its responsibilities. In other words, the Security Council does wield tremendous authority and can speak for the U.N. as a whole by ordering punitive economic sanctions or authorizing military force. Therefore, presuming the Security Council must vote first and must vote in favor of admission or expulsion before the General Assembly may consider the course of action is a normatively coherent and pragmatically consistent reading of Article 4’s admissions criteria and Article 6’s expulsion process.

That presumption, however, fails in the face of the structural interpretation of the U.N. Charter; and its inappropriateness is even clearer when giving due regard to the drafters’ intentions and the very purpose of the charter outlined in Articles 1 and 2. During the Yalta Conference in 1945, Secretary of State Edward Stettinius of the American delegation described in a memorandum the U.S. position on how future Security Council voting, relative to action taken by the General Assembly, would proceed. The memo explained that when it came to the issues of admitting new members, suspending or expelling members, and selecting a secretary-general, the action by the council was explicitly categorized as a “recommendation” and distinguished from decisions that would be left to the ultimate discretion of the council itself, like punitive enforcement actions.

So why the confusion? The procedural requirement that an expulsion vote within the Security Council must include the unanimous consent of each permanent member (regardless of whether one of those members was the problem) has been misinterpreted by some scholars as proof that a problematic permanent Security Council member could effectively block its own removal before the decision could be made by the General Assembly: One commentator asserted unequivocally that “the General Assembly cannot expel a Member without first receiving a recommendation to that effect from the Security Council.” This might be called the “Security Council Permission Theory of Expulsion.”

But if the drafters of the U.N. Charter wanted a preliminary Security Council vote to be both required and binding on the General Assembly for admission or expulsion of a member, they could have said so explicitly. They certainly knew how to draft text in this fashion: They did so in several other areas in the charter. For example, in Article 12:

While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests. [emphasis added]
- The Secretary-General, with the consent of the Security Council [emphasis added], shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.

And in Article 25: “the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

If words matter at all, then two points are paramount and largely obvious. First, a “recommendation” by the Security Council is not the same as a “decision” by the Security Council. Second, no conditional triggers or caveats like “unless the Security Council so requests” or “with the consent of the Security Council” are found to hinder the actions of the General Assembly permitted by Articles 4 and 6. The “Security Council Permission Theory of Expulsion” is long-entrenched. But it is also wrong.

Conclusion

Engaging Article 6 of the U.N. Charter to expel Russia is not, in fact or law, prevented by Russia’s status as a permanent member of the Security Council. Whether Putin and his agents in the government and military on the ground in Ukraine ought to be prosecuted as war criminals, or even whether Russia should be expelled from the U.N. for directly endangering international peace by waging an unlawful war of aggression against the territorial integrity of a sovereign neighbor and its noncombatant citizens, are deeply complicated geopolitical questions for which this post admittedly offers no hint of an answer. Instead, there is some reason to be optimistic, rather than cynical, about the global community’s legal right to hold even a Security Council permanent member accountable for its illegality by removing that offender from the community itself, as both a deterrent and an expressive signal of how much the global communities values the principles of the U.N. project. I suspect that this view does not appeal to the governments of any of the other four permanent members. But one consequence of making expulsion a real possibility is that it would shift attention to the justification required—the evidence of “persistent violations” that must be presented for the consideration of the General Assembly.

Expulsion has always been considered a drastic remedy, fraught with the risk that it would delegitimize the very concept of a global community of nations united in a process to peacefully resolve disputes and advance mutual interests, or at least cast out a member and force it to the fringe of global society, the periphery of cooperation and the sidelines of decision-making. That such action has never occurred in the U.N.’s history does not render the individual U.N. Charter’s meaning and purpose irrelevant, though. The charter is understood to be a “constitutional framework” that structures the rights and responsibilities of the member states. Just as one would interpret the U.S. Constitution in the absence of binding precedent, the charter’s rules, including rules creating the rights and responsibilities of the Security Council, ought to be read in a way consistent with the charter’s purpose and design. Article 6, demonstrated by its text and by its relation to other articles, does provide for the very kind of accountability that intuition demands but that conventional wisdom has, so far, prematurely deemed procedurally impossible.

The UN Charter has been amended at least 5 times in it's history, this would be just another use of Art 108 process to get Russia out of the house. Personally, I prefer running the continuing state issue past the ICJ under Article 96(1) which would be binding under Article 94(1). The beauty of this is that it is fast, the jurists assess the question and answer that, and if it is that the USSR was not continued by Russia legally, then Russia is done on the UNSC. At that point, the UNSC can deliberate on a motion to suspend or expel Russia. Article 94(2) doesn't arise as an issue, where Russia has been removed from the UNSC by the ICJ ruling, which is binding on all members....