11 Feb No, Russia Can (Still) Not be Removed From the UN Security Council: A Response to Thomas Grant and Others: Part One
[Joris van de Riet is a PhD candidate in jurisprudence at Leiden Law School. He holds LLM degrees in Public International Law and in Jurisprudence and Philosophy of Law from Leiden University.]
In a two-part post for this blog, Thomas Grant has argued that it is both possible and desirable to remove the Russian Federation from the UN Security Council (see Part One and Part Two). Although he is not the only one arguing that the Russian Federation’s presence on the Security Council is illegitimate – he can count among his supporters the Ukrainian Ministry of Foreign Affairs, which in December 2022 released a statement arguing that Russia has never really been a member of the Security Council, and the U.S. Helsinki Commission – it is the best attempt made so far at setting out a legal case for Russia’s removal from the Security Council.
As Grant’s post is at least in part a reply to a previous post of mine on Leiden Law Blog, I feel compelled to take up the challenge and explain why, despite Grant’s impressively extensive argumentation, I still do not believe that it is legally possible to remove Russia from the Security Council. Although I will mainly focus on Grant’s argument, this two-part post will also discuss arguments made by some others – notably the Ukrainian MFA – about the same issue. Part One takes on the relevance of the “recommendation” that is required for expulsion from the UN under Article 6 of the Charter, and argues that Russia is the State continuing the USSR’s international legal personality and UN membership. Part Two will then explore the role played by the proposed use of the credentials procedure.
Article 6 of the Charter and the Meaning of “Recommendation”
One argument occasionally made in favour of the possibility of Russia’s expulsion from the UN in its entirety – and thus from the Security Council – is that the procedure for expulsion as set out in Article 6 of the UN Charter only requires a “recommendation” from the Security Council before the General Assembly can vote on it, and the General Assembly would therefore be free to disregard that recommendation in its entirety if it wants to.
It would be rather odd, however, for the Charter to explicitly require such a recommendation by the Security Council only to then leave it up to the discretion of the General Assembly to decide what to do with it. Although there has never been a decision or resolution invoking Article 6 – the Repertory of Practice on Article 6 is virtually empty – there have been at least two attempts to expel a member from the UN under Article 6: one involving South Africa for its policy of apartheid (1974), which failed because of the negative vote of a permanent member of the Security Council; and one involving Israel (1982), in which it was explicitly stated that expelling Israel from the UN without the involvement of the Security Council would be of questionable legality.
The procedure for expulsion prescribed in Article 6, which requires a decision by “the General Assembly upon the recommendation of the Security Council”, can also be found in Articles 4 (applications for membership) and 5 (suspension of members); in all cases of admission to the UN through Article 4, the positive recommendation of the Security Council was seen as a clear requirement for the General Assembly to proceed. As the ICJ already pointed out in its 1950 Advisory Opinion on Competence of the General Assembly for the Admission of a State to the United Nations,
To hold that the General Assembly has power to admit a State to membership in the absence of a recommendation of the Security Council would be to deprive the Security Council of an important power entrusted to it by the Charter. It would almost nullify the role of the Security Council in the exercise of one of the essential functions of the Organization. It would mean that the Security Council would have merely to study the case, present a report, give advice, and express an opinion. This is not what Article 4, paragraph 2, says.
The Court cannot accept the suggestion … that the General Assembly … could treat the absence of a recommendation as equivalent to what is described … as an “unfavourable recommendation”, upon which the General Assembly could base a decision to admit a State to membership. …
In consequence, it is impossible to admit that the General Assembly has the power to attribute to a vote of the Security Council the character of a recommendation when the Council itself considers that no such recommendation has been made.
To admit a State from the United Nations, an affirmative vote by the Security Council is therefore required; if the General Assembly were to act on its own it would be acting ultra vires, trying to circumvent the clear wording of the UN Charter (compare e.g. Schermers and Blokker’s International Institutional Law, para. 263). It is hard to imagine why this would be different for expulsion under Article 6, which is worded in the exact same way as Article 4. And pursuant to Article 27(3) of the Charter, all five permanent members of the Security Council have a veto on this decision – including Russia itself.
Russia as the Continuation of the USSR
In arguing that Russia is not a “peace-loving State” within the meaning of Article 4(1) of the Charter, the Ukrainian Ministry of Foreign Affairs has referred to the ICJ’s Order on provisional measures of 16 March 2022 in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), where the Court ordered Russia to “immediately suspend the military operation that it commenced on 24 February 2022 in Ukraine” and to “ensure that any military or irregular armed units … take no steps in furtherance of the military operations”.
Ukraine’s argument in this case relied on the repeated Russian claims that a genocide was being committed in Ukraine, necessitating a Russian military intervention to prevent further acts of genocide. Accordingly, Ukraine asserted that “a dispute exists between it and the Russian Federation relating to the interpretation, application or fulfilment of the Genocide convention” as to “whether genocide … is occurring or has occurred in the Luhansk and Donetsk oblasts of Ukraine and whether Ukraine has committed genocide.” (para. 30). For the ICJ to have jurisdiction over this case, which was framed as a dispute over the interpretation of the Genocide Convention, it was thus necessary to establish that both States were a party to that convention. In doing so, the Court remarked that:
Ukraine and the Russian Federation are both parties to the Genocide Convention. Ukraine deposited its instrument of ratification on 15 November 1954 (…). The Russian Federation is a party to the Genocide Convention as the State continuing the legal personality of the Union of Soviet Socialist Republics, which deposited its instrument of ratification on 3 May 1954 (…).(para. 27, emphasis added)
The ICJ thus held – in a case brought by Ukraine itself, and for which the recognition that the Russian Federation is the continuing State of the USSR was quite essential to Ukraine’s argument – that the Russian Federation, at least insofar as the Genocide Convention is concerned, is the State continuing the USSR’s position as a State party to that convention. If the Russian Federation were not the continuing State of the USSR for the purposes of the Genocide Convention, the Ukrainian case at the ICJ would be futile: the Russian Federation would not be a party to the Genocide Convention at all – it never ratified the Convention as the Russian Federation, but only as the USSR – and the ICJ would have no ground for its jurisdiction.
This was in fact not the first time that the ICJ ruled on the issue of Russian continuation of a Soviet-era treaty: in its Order of 15 October 2008 in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), the Court similarly remarked that:
Whereas, according to the information available from the Secretary-General of the United Nations as depositary, Georgia and the Russian Federation are parties to CERD; whereas Georgia deposited its instrument of accession on 2 June 1999 without reservation; whereas the Union of Soviet Socialist Republics deposited its instrument of ratification on 4 February 1969 (…); and whereas the Russian Federation, as the State continuing the legal personality of the Union of Soviet Socialist Republics, is a party to CERD without reservation(para. 105, emphasis added).
As Guido Acquaviva has set out at some length, the claim that Russia is the State continuing the international legal personality of the USSR is also extensively supported by national case law and State practice, which “reinforces the impression that there is an international consensus for the Russian Federation as continuator (…) of the USSR, a subject of international law identical in its essence, though substantially diminished in terms of population and territory, and with an apparently completely different form of government.”
It is perhaps worth making a comparison here with a case of State succession often offered as a counter-example, being the breakup of Czechoslovakia in 1992. As pointed out by, for example, the Ukrainian MFA, admission as a new State through the Article 4 process was “the legitimate path taken, inter alia, by the newly formed UN member states Czech Republic and Slovakia after the UN member state called ‘Czechoslovakia’ ceased to exist.” It is true that after the dissolution of Czechoslovakia, neither of the two States occupying its place was regarded as the successor or continuing State within the UN. That, however, also applied to other treaties: both Czechia and Slovakia joined the Genocide Convention in 1993 as “new” States, rather than succeeding or continuing Czechoslovakia as a State party. That the Czechoslovak and USSR memberships of the UN had a different fate is thus perfectly in line with their fate as a party to other treaties.
Regarding Russia as the State continuing the USSR membership is also well in line with the letter sent by Boris Yeltsin to the UN Secretary-General on 24 December 1991, in which he stated that “the membership of the Union of Soviet Socialist Republics in the United Nations, including the Security Council and all other organs and organisations of the United Nations system, is being continued by the Russian Federation (RSFSR) with the support of the countries of the Commonwealth of Independent States” (emphasis added). That support, in turn, had been given earlier that month in the Alma-Ata Protocols, signed by all Soviet republics except Georgia. Contrary to what the Ukrainian MFA claims, those Protocols did not somehow “substitute the UN Charter” – they settled some aspects of a process that was well accepted within the limits of that Charter. Moreover, if Ukraine wanted to object to this state of affairs, it could have done – yet it did not, for thirty years. Even Thomas Grant agrees that this case “is not wholly convincing, and serious questions would arise if Members adopted it”.
The issue was thus cast as one of continuation rather than succession: the Russian Federation was not a new State taking the place of the USSR; instead, it was simply the same State under a different name and with a rather reduced territory and population. And as is well known, a change in the name of a State does not affect its position as a member of the UN; the most pertinent example is perhaps Ukraine itself, which in 1991 changed its name from “Ukrainian Socialist Soviet Republic” to simply “Ukraine”. The same goes for a reduction in territory: when the Partition of India led to the creation of a separate State in the form of Pakistan, India remained an original member of the UN while Pakistan had to apply for admission under Article 4. Similarly, when in 2006 Montenegro seceded from Serbia and Montenegro, it had to re-apply for UN membership while Serbia (by far the larger of the two) continued the original membership.
The decision to regard Russia as the State continuing the Soviet Union’s international legal personality was thus arguably the most logical solution to the problem of what to do with the Soviet seat at the United Nations. I am not saying that it was the only option available, or that the process was flawless: as Yehuda Blum has pointed out, the dissolution of the Soviet Union over the month of December 1991 was a very messy process, and Russia consciously changed its description during the process, clearly casting it as a case of continuation rather than State succession (as was originally claimed) so as to lay a better claim to be the rightful heir to the Soviet membership and Security Council seat. The process may have been quite the mess, but the result was clear: Russia, as far as the UN was concerned, was simply the Soviet Union by another name.