Suspension of the United States From the United Nations: Procedure, Limits and Feasibility

[Dr Atul Alexander is an Assistant Professor at the West Bengal National University of Juridical Sciences. Vadita Agarwal is a final year law student at the West Bengal National University of Juridical Sciences.]

Trump’s second term has witnessed unending executive orders, official statements, and social media pronouncements. Some of these actions can be classified according to Markus Gehring and Tejas Rao as first, clear violations of international law, second, actions that potentially violate international law, and third, statements or policies that raise concern, although they may not constitute violations of international law.  In this post, in light of United States’ aggression in Iran, we explore the practical feasibility of suspending the US from the UN, both through the traditional routes provided in the UN Charter (‘Charter’) and the alternative route of rejection of credentials, as done in the case of South Africa. This is contextualised in light of the peremptory nature of the prohibition of aggression and the applicability, and subsequent abuse of the veto.

United States and Peremptory Norm Violations

Peremptory norms are norms accepted and recognised by the international community of States as a whole, from which no derogation is permitted. The International Law Commission  Conclusion 23 has identified the prohibition of aggression as one of the peremptory norms of general international law. UN General Assembly Resolution 3314 defines aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” Prevention of aggression is indeed one of the measures provided in Article 1(1) of the Charter to maintain international peace and security. 

The recent US strikes on the Iranian nuclear facilities constitute aggression. The Trump administration claimed the strikes ‘completely obliterated’ the nuclear programme. There can be no grounds justifying aggression in self-defence either, as the UNGA resolution highlights, “[N]o consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.” Moreover, ILC Draft Articles on State responsibility highlight that the jus cogens nature of a norm cannot be precluded with respect to State responsibility.   

The consequences of serious breaches of obligations arising under peremptory norms entail the obligation on other States to, through lawful means, cooperate to endthe serious breaches. The duty to cooperate is widely recognised and accepted in practice. In La Cantuta v. Peru, the Inter-American Court of Human Rights observed, ‘the duty of cooperation among States for the purpose of eradicating breaches as itself a consequence of breaches of obligations arising under peremptory norms of general international law (jus cogens).’ In the ICJ Wall Advisory opinion, the obligation was applied in the context of the right to self-determination. Importantly, the obligation to cooperate is upon other States and in line with the UN Charter and international law. In Legal Consequences of the Separation of the Chagos Archipelago from Mauritius, the ICJ concluded that the right to self-determination is an obligation erga omnes and directed “all member States to co-operate with the United Nations to end the breach in question.” 

The ILC commentary  on Article 41 of the Articles on State Responsibility (concerning consequences of breach of a peremptory norm) recommends that this could be done through “the framework of a competent international organisation, in particular the United Nations.”  However, the ILC does not provide the specific modalities as to the mode of co-operation and leaves this to the discretion of the international organisation.  

Suspension under the Charter Framework: Procedure, Limitations and Other Avenues

Articles 5 and 6 of the Charter, neither of which have been applied successfully till date, envisage suspension and expulsion respectively, of states from UN.

Article 5 of the Charter provides for suspension by the General Assembly of the “rights and privileges of membership” of States against which “enforcement or preventative action” has been taken by the SC. 

On the other hand, Article 6 gives the SC the power to recommend to the GA, expulsion of a State “which has persistently violated” principles of the Charter. 

Notably, both provisions, insofar as they require approval by the GA upon SC recommendation, are similar to the provision on admission of new members provided in Article 4 of the Charter.

Rebecca Barber, in her piece on whether Russia can be suspended from the UN, argues, an SC resolution recommending suspension would nonetheless be subject to the veto since Article 18(2) of the Charter lists “suspension of the rights and privileges of membership” as an important question that requires a two-thirds majority vote. Thus, even if the SC had taken preventive or enforcement action against the US, the US could use its veto to block its own suspension. 

Alternatively, Rule 27 of the GA’s Rules of Procedure requires the credentials of the members of a state delegation to be submitted either by the Head of State or Government or Minister of Foreign Affairs. The accreditation process aims to verify that the delegates are “entitled to represent their State at the seat of or at meetings of the organisation.”

While the accreditation process is generally used (pg. 115) for when competing authorities claim to be the lawful governments of a State, in the case of South Africa, in the absence of any rival claims, it was successfully deployed to prevent the State from participating in GA proceedings, in condemnation of the State’s support for apartheid. 

Subsequent to South Africa’s ‘suspension’ from the GA,  concerns raised regarding the validity of ‘suspension’ through the accreditation process are not unfounded. Simma et al argue that in necessitating the SC to first take preventive or enforcement action and second recommend suspension of the recalcitrant state, the process under Article 5 requires “two rounds of decision making in the Security Council.” Only after these affirmative decisions by the SC that the GA has discretion, if at all, to bring the suspension into effect. 

Keeping theoretical constraints in mind, we argue that owing to permanent SC members’ veto powers, the procedure prescribed in Article 5 is patently ineffective. Not only can P5 members shield themselves from suspension, but they can also block the suspension of ally states. Given that the Charter envisages expulsion, a graver consequence than suspension, for its persistent violations, it is worth discussing whether practice needs to evolve to overcome the stalemate in the practical application of Article 5. 

A necessary implication of this would be the need for en masse veto reform within the UN. Because that remains an aspirational goal, the realisation of which, if at all, would take decades, suspension through accreditation is a procedurally easier, although legally dubious alternative.

We argue that the black letter procedure for suspension of a member, as seen in Article 5, requires serious reconsideration, in light of first, the procedural stalemates it creates and second, the peremptory nature of the norm violated. 

Analysing the South African Example: Lessons and Warnings

Perhaps the clearest example of the procedural difficulties in enforcing Articles 5 and 6 (and subsequently resorting to de-credentialing) was seen in the case of South Africa. 

In light of growing discontent among States for South Africa’s support of Apartheid, in 1962, the GA adopted Res. 1761 (XVII) which, in strongly criticizing “the total disregard by the Government of South Africa of its obligations under the Charter of the United Nations…”, requested the SC to, “if necessary, consider action under Article 6 of the Charter.” While the resolution did not materialize in any SC action; there was parallel action by the Credentials Committee from 1965 onwards in not approving South Africa’s credentials. In its 1407th Plenary Meeting, the GA decided to take “no decision on the credentials submitted on behalf of the representatives of South Africa.” Owing to Rule 29 of the GA Rules of Procedure as per which representatives continue to be “seated provisionally” in the GA until the Credentials Committee has given its decision, this inaction on South Africa’s credentials did not have the effect of excluding it from GA deliberations. 

It was only in 1970 that the South African delegation’s credentials were explicitly rejected. In the subsequent GA deliberations, the then President construed this rejection to be “a very strong condemnation” of South Africa’s policies, although not to mean “that the South African delegation is unseated or cannot continue to sit in this Assembly” (pg. 25). In a memorandum to the GA President, the Legal Counsel to the UN expressed concerns that in the absence of rival claimants, rejection of South Africa’s credentials would effectively suspend it from participation in GA meetings, “in a manner not foreseen by the Charter.” 

Pursuant to a draft resolution, in October 1974, the SC also discussed the possibility of formally recommending expulsion of South Africa to the GA under Article 6. In the ensuing debate, the US, UK and France, while unequivocally condemning apartheid, euphemistically opposed South Africa’s suspension by arguing that the solution was to negotiate with the State within the UN instead of resorting to “amputating one of its members.” (para 80.) The draft resolution eventually failed due to the veto of these 3 States. 

After the failure of the Article 6 resolution and in light of the consistent rejection of its credentials from 1970 to 1974, in November 1974, there was a ruling in favor by 91 states that the repeated rejection of South Africa’s credentials is “tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work” (paras. 159 and 185). 

Notably, this was in contradiction to the memorandum which argued that while, under Rule 29, a lack of a decision on credentials would still keep the State “provisionally seated” in the GA, a rejection of credentials would produce the effect of suspending a State, not through the requirements of Article 5 but in a roundabout way which was “contrary to the Charter.” 

While ultimately due to this majority vote, South Africa was temporarily suspended in 1974, the question still remains whether first, a rejection of credentials has the effect of suspending a state from the GA and second, whether suspension through the credentials route is consistent with the Charter.  

Suspension Through Rejection of Credentials: Exploring Debates on Legality

The validity of what transpired with South Africa’s ‘suspension’ has been subject to significant scholarly debate. 

An argument by Jhabvala, in favour of ‘suspension’ through the credentials route is that irrespective of whether there are rival claimants involved, each state “should satisfy the same criteria” to establish representativeness. This was argued in light of UNGA Resolution 396 (V) of 1950 which recommended that in case of rival claims to represent a member state, “the question should be considered in light of the Purposes and Principles of the Charter.” Jhabvala uses this to argue that surely this criterion must apply to all authorities claiming to represent their respective states, irrespective of whether there are rival claimants. Simply put, absence of rival claimants does not exempt a state from having to adhere to the Principles of the Charter and the GA from  deciding the same.

This has been countered by Halberstam who argues that the only instance where the GA might decide on the question of representation is in a situation of “necessity” i.e when there are rival claimants. Absent rival claimants, she argues that the determination of representation “is made only in the context of admission or expulsion”, both of which require a recommendation by the SC. 

An important observation to make here, one that is acknowledged by Halberstam (pg. 183) is that in case of rival claimants, the determination of which among them is appropriate to represent a state inevitably requires substantive decision making by the Credentials Committee. Thus, the Committee, in cases involving rival claimants, routinely exercises discretion, going far beyond a strictly procedural inquiry and making decisions with serious political implications. Since owing to the lack of an alternative provided by the Charter, this is now accepted practice, the question remains whether this practice can be stretched far enough to mean that the same discretion can be exercised by the GA when it comes to states which do not have rival claimants but are seriously compromising core principles of the Charter.

Thus, while we argue that rejection of credentials is a more procedurally accessible way to suspend a State and South Africa does create some precedent, the question of its legality and procedural integrity is by no means settled. Although, given that the US has violated a peremptory norm of international law, it is worth deliberation whether the interpretation of the scope of SC and GA powers needs to evolve in a way that no longer gives impunity to P5 states to engage in such violations. Particularly, on whether international cooperation through the GA needs to be strengthened to temper the impact of the veto. 

Assessing the Need for ‘Suspension’: Peremptory Norms and the Abuse of the Veto

Jennifer Trahan argues that aggression being a peremptory norm of international law, if the SC is bound to respect its jus cogens nature, the permanent members, being a mere subset of the Council, cannot use the veto to block their own condemnation for violating these norms (pg 20).

In support, Trahan cites Judge Lauterpacht’s Separate Opinion in the Application of the Genocide Convention case, where she observed that as per Article 24(2) of the Charter, “in discharging its duties to maintain international peace and security, the Security Council shall act in accordance with the Purposes and Principles of the United Nations.” In any case, in Certain Expenses Advisory Opinion reiterated the GA’s role in maintaining international peace and security, disrupting the notion of the SC having unilateral and “exclusive” powers of decision-making. 

Like several other problems within the organisation, the problem of P5 States getting away with violations of peremptory norms can, in part, be ascribed to the abuse of veto.

Though unsuccessful, efforts to curb the veto have been underway for many years. Trailing Russia’s veto condemning its military invasion of Ukraine in 2022, the GA adopted the ‘veto initiative’. Mandating the President of the GA to convene a meeting within ten days of a permanent member of the SC exercising the veto and ‘inviting’ the SC to submit a special report on the use of the veto to the GA at least 72 hours before the relevant GA discussion, Resolution 76/262 was an attempt to curb unilateral decision making in the SC by holding the P5 accountable. 

Though forcing a veto-exercising state to justify its vote in front of the entire assembly does create political pressure, the Resolution does little to meet the radical propositions by scholars such as Vilmer who argue that states “should voluntarily refrain from using their veto in the event of atrocities.” 

Assessing Feasibility

The question persists, whether despite strong principled arguments in favour, such a solution is practically feasible. 

Logistically, as discussed, even if the Credentials Committee were to reject US’s credentials, it does not automatically mean ‘suspension’ of the US from the GA. If it does come to a GA vote, the way it did with South Africa, the propensity of that succeeding is higher than a strictly procedural SC vote.

Politically, the US’s insistence on maintaining and actively exercising the veto has only strengthened since Trump’s second term. During the Biden administration as well, US Ambassador to the UN, Linda Thomas-Greenfield, when asked about the possibility of UN reform in a way where the veto was abolished, maintained that “none of the permanent members want to give up their veto power, including us.”

While the veto has been exercised twice so far in Trump’s second term (both on resolutions demanding a ceasefire in Gaza), his continued withdrawal from several UN bodies including the UN Human Rights Council, indicate, at the least, declining respect for the organization’s goals. 

While granted that suspension through accreditation is not likely to be received well by any P5 State, the US response can be expected to be particularly abrasive, given recent sentiment that UN’s agencies and bodies have drifted from the mission of peace and security and “instead act contrary to the interests of the United States…”

Conclusion

The latitude the GA displayed in decision-making in South Africa’s case problematizes settled ideas on procedure. It is also argued that once a Pandora’s box is opened, a credentials-based UN scrutiny of the claims to ‘representativeness’ should also be logically applied to other conflict situations.

Given that the success of the suspension procedure as prescribed in Articles 5 and 6 of the Charter is a virtual impossibility for P5 States, exploration of suspension through the Credentials Committee is a possible route to circumvent the problem. Though admittedly concerns of procedural validity remain, persistent violations of the peremptory norm of aggression through repeated abuse of the veto require serious deliberation on whether it’s time to usher in a new era of international cooperation, spearheaded by the GA.