2024 was the year when the world had not one but two international armed conflicts going on in not-so-far-away parts of the world. Both found their beginnings in the years before 2024 but entered particularly bloody phases in 2024, leaving an indelible mark on both the news headlines and our minds. These were none other than the Israel-Hamas conflict and the Russia-Ukraine conflict. Recent news indicates that a ceasefire and hostage release agreement has been agreed to by the parties in the Israel-Hamas conflict. The Russia-Ukraine conflict, on the other hand, finds no possible ending on the horizon and continues to ravage the lives of millions of people. In the face of mass atrocities being committed in both these theatres, the need for accountability arises.

Recently, the International Criminal Court (ICC) released arrest warrants for the arrest of both Israeli Prime Minister Benjamin Netanyahu and Russian President Vladimir Putin. While this acts as the international community’s acknowledgement of the atrocities committed and potentially exerts moral and diplomatic pressure on the parties, the arrest of these leaders seems improbable at best. In this scenario, ensuring accountability in international law becomes more pertinent and pressing than ever before. This need for accountability revitalises a peculiar question raised earlier (see here, here, here, and here): the potential expulsion of a member state from the United Nations. As extreme as this proposition may sound, the Charter under Article 6 does provide the mechanism for the expulsion of a member state from the UN for persistent violations of the principles of the UN Charter. Ironically, it was the USSR that had argued vehemently for including a provision for expulsion in the Charter, calling it “essential as a disciplinary measure”.

This post discusses the potential of expelling a member state from the UN in light of the massive violations of human rights and international law by Israel and Russia. It delves into the alternative mechanisms given the challenges of Article 6 mechanism and discusses the peculiar case of Russia. The post aims to move forward from the debate on the possibility of Russian Expulsion between Professors Thomas Grant (see here, here and here) and Joris van de Riet (see here, here and here) by suggesting the possibility of treating the recommendation as procedural and therefore circumventing the veto dilemma. It further puts forward that the UNSC recommendation should not  be a mandatory requirement for triggering the mechanism provided under Article 6. It discusses the nature of the UNSC ‘recommendation’ required to trigger the Article 6 mechanism and the nature of the vote (procedural or substantive) needed for such a recommendation to be passed. It proceeds with a structural analysis of the relationship between the UNGA and UNSC, particularly in admission and expulsion from the organisation. Placing reliance on a conjoined reading of the structural relationship between the organs and the interpretive possibility of ‘recommendation’ as procedural, this post argues that it is possible to circumvent the veto imposed upon the Article 6 mechanism and thus theoretically expel a member state. However, its practical feasibility depends on a complex interplay of geopolitics and diplomacy, which falls beyond the scope of this paper. 

Understanding the Mechanism

Article 6 of the Charter provides the mechanism for the expulsion of any member state from the UN and vests the responsibility of making this decision upon the General Assembly. However, it also adds an important caveat: the General Assembly can only act “upon the recommendation of the Security Council.” The requirement of the UNSC recommendation brings the process within the realm of operation of the veto, and thus, executing an action for expulsion of a member is difficult, especially if it concerns a Permanent Member of the Security Council. The general understanding remains that the UNSC recommendation is required for triggering Article 6 and this is a matter of substantive vote in the Council and thus requires the affirmative vote of all permanent members. This general understanding, coupled with the realistic conjecture that no state would vote for its own expulsion, leads to conventional wisdom that the possibility of Russian expulsion is non-existent. The vehement support of Israel by the US renders a similar conclusion. Further, perhaps unsurprisingly (yet surprising, noting the mass violations of Charter principles since the inception of the UN), no member state has ever been expelled from the UN under Article 6, despite two attempts taking place, and as such, the repertory of practice is seemingly thin on the subject.

Exploring the Alternatives and the Peculiar Case of Russia

Given this difficulty, scholars have suggested alternative mechanisms to circumvent the rigour imposed by Article 6. The two leading alternatives suggested by Professor Grant are, questioning the ascendancy of the Russian Federation to the USSR’s seat on the UNSC (by Ukraine’s UN representative themself) and suggesting the use of the improvisatory credentials method by the General Assembly. The first deals with the contentious circumstances in which Russia inherited the permanent seat on the Security Council in the aftermath of the dissolution of the USSR and forms the peculiar position that Russia occupies. The second deals with an improvised method used by the UNGA to deny representation to South Africa and China (Republic of China) by refusing to accept the delegation’s credentials.

The denial of Russia as the true inheritor of the USSR’s seat brings to discussion the distinction between ‘successor state’ and ‘continuing state’. Russia claimed itself as the sole ‘continuing state’ of the USSR and, as such, inherited the permanent seat along with the Soviet Union’s strategic nuclear arsenal and space program. This inheritance was solidified by the Alma-Ata Protocol which was signed by a majority of the Soviet Republics. This question is significant because a major roadblock in any action for expulsion of a permanent member is posed in Article 23 of the Charter, which lists the permanent members of the UN. Article 23(1) reads USSR and was never amended to reflect the transfer to the Russian Federation. Professor Riet has effectively argued that “consistent and uniform practice” over the last three decades makes it difficult to accept that Russia’s ascension was void ab initio. Further, Russia has to claim several strengths as a continuing state, foremost among them being Russia emerging as the largest state after the dissolution of the USSR. Settling the issue, the ICJ recently in Ukraine v Russian Federation upheld Russia to be the continuing state of the USSR and thus as it stands, this measure cannot be accepted as a valid avenue.

The second suggestion regarding the rejection of the delegations’ credentials rests on shaky grounds and, except for precedents in the South Africa and China cases, finds itself unsupported by the UN Charter. The present cases of Russia and Israel can also be distinguished from the case concerning the legitimacy of Chinese representation, which was itself based on practical balance of power arguments. This is so because, in our case, no competing claim exists to legitimate representation. While Palestine along with multiple other member states has indirectly contested Israel’s representation in the UN, this contestation does not stand on a similar footing as the peculiar case of Russia. This is especially so in light of the difference between the direct and more formal legal question relating to Russia’s ascension to the Soviet Union’s seat on the UNSC and the indirect and more political-diplomatic contestation relating to Israel’s representation. The only remaining exception of the South African case is of relevance but stands on legally questionable grounds. This is because, unlike the Chinese case, the UNGA did not choose one competing claim over the other but instead rejected the delegation’s credentials altogether, initiated in response to a failed attempt to trigger the Article 6 procedure. The leading work by Schermers and Blockker posits that such a move would amount to a de-facto expulsion of the member state and would be “an illegal circumvention of special procedures such as those laid down in Articles 5 and 6 of the Charter”. The credentials measure also remains much discussed and effectively argued by Professor Thomas Grant but appears grounded more in political support than legal terms.

It is important to note that Israel and Russia stand on a similar footing with regard to de-facto immunity from expulsion conferred by the veto system. This is so because Russia is itself a permanent veto wielding member and would reasonably not vote for its own expulsion. Further, Israel enjoys a special relationship with the US and therefore benefits from the exercise of the US veto. However, the position of these states is also different because, unlike Israel, Russia (erstwhile Soviet Union) is mentioned by name in the Charter. This distinction is relevant for our analysis because, hypothetically, even if the vote to expel Russia from the Security Council was passed, the enforcement of such a resolution would in effect amount to the amendment of the Charter without following the amendment procedure laid therein.   

‘Recommendation’ – A Matter of Procedure

The requirement of a UNSC recommendation, put forward by conventional wisdom, brings to light a key question regarding the nature of the voting: whether the vote for the recommendation under Article 6 would be procedural or substantive in nature. This distinction is critical because Article 27 of the Charter requires an affirmative vote of all permanent members on substantive matters but does not provide any such requirement in case of “procedural matters”. The determination regarding the nature of the vote determines whether an action would be subject to the veto power available to the permanent members and effectively decides its trajectory. This is affirmed by Rule 17 of the Provisional Rules. Given the importance of this determination, the question often came up for discussion during the early sessions of the UN.

While there is still no binding interpretation on the matter, several issues have come to be accepted as procedural matters over time. These include inter alia whether or not to include an agenda item, to convene or suspend a meeting, or to extend invitations to participate in Council meetings. While this has been derived majorly from council practice, this question can also be traced back to an early and almost forgotten UNGA Resolution. The Assembly addressed the question in Resolution 267(III) of 14 April 1949 and recommended that the Security Council include several issues noted in the annexure as procedural matters. Notably, these included:

(i)     “submission to the General Assembly of any questions relating to the maintenance of international peace and security;

(ii)    request to the General Assembly that it make a recommendation on a dispute or situation the Council is seized of;

(iii)   request to the Secretary-General for the convocation of a special session of the General Assembly;”

It is submitted that the recommendation under Article 6 calls upon the General Assembly to take action in the face of persistent violations of the UN Charter principles and is thus structurally similar to clauses (i) and (ii) enumerated above. The procedure for expulsion laid down under Article 6 is aimed at remedying “persistent violation of the principles of the UN Charter” and in light of respect for territorial integrity and sovereignty forming the core principle of the UN falls within the scope of “maintenance of international peace and security.” This is accentuated and re-emphasised by the purposive interpretation of the expulsion mechanism as a disciplinary measure aimed at ensuring accountability. The use of the word ‘recommendation’ in the text of Article 6 further cements this analysis and makes it a “submission to the General Assembly.” Additionally, an analogical reading of clause (ii) provides for treating the recommendation as procedural. Further (iii) has been adopted by the UNGA in Resolution 377(V) titled “Uniting for Peace”, wherein the Assembly noted the Council’s lack of unanimity in matters of international peace and security and established the Emergency Special Session of the General Assembly (UNGA-ESS) in response. This special session can be called either by a majority of the Assembly or by a procedural vote by the Council. The ESS has been called upon by the Council eight times since its inception, following the procedural vote and thus ratifying the suggestion of the Assembly.

Non-Requirement of Recommendation – A Structural Analysis

This procedural nature of the recommendation also flows from a structural understanding of the relationship between the Assembly and the Council. The power and responsibility for maintaining international peace and security is placed primarily in the UNSC, but not exclusively; it is shared and rests with both bodies. Konstantinos Magliveras, in his work, deemed the recommendation step to be a conditio sine qua non to proceed with the formal procedure and the Council to have no express right to initiate the procedure. Dan Maurer, in his work, goes a step further to extensively discuss the structural relation between the Assembly and the Council and argues that the recommendation under Article 6 is not mandatory and, therefore, the General Assembly can act on its own, relying upon the broad powers conferred under Article 14 of the Charter. He relies upon the 1962 ICJ Advisory Opinion ‘Certain Expenses of the United Nations’ where the Court held – “Security Council which has only the power to recommend, and it is the General Assembly which decides and whose decision determines status.” The language of this exposition by the Court makes it clear that the Assembly is not subject to the Council’s recommendation, for interpreting it so it would render the deliberate usage of the term ‘recommendation’ hollow and yield “absurd results.” The absence of any specific caveats in the provision’s text, coupled with the deliberate usage of the term ‘recommendation’, underscores the non-mandatory nature of this step. This conclusion is buttressed by the structural framework of the UN, which clearly indicates the drafter’s intentions and the aim and purpose of the Charter, as provided in Articles 1 and 2.

This understanding of the non-requirement of recommendation by the UNSC also strengthens the argument regarding the procedural nature of the vote for making such a recommendation. Indeed, the US memorandum from the Yalta Conference provides that in relation to an action for expulsion, the Council’s role was expressly classified as a “recommendation” and is wholly different from decisions like coercive action (Chapter VII) where the Council possessed discretion.

The Way Ahead

The ongoing conflicts shake the very foundations of the international legal order and test the effectiveness of global governance structures like the United Nations. This post has attempted to bring to the forefront the legal possibility of expulsion of a member state from the UN as an accountability measure for persistent and gross violations of the UN Charter. It demonstrates that the legal framework under Article 6 of the UN Charter, though seemingly rigid due to the veto power of permanent Security Council members, can be reinterpreted in ways that allow for accountability. The discussion on the alternative measures suggested to circumvent the procedure laid down in Article 6 presents the legal non-feasibility of such measures and the need to work within the Charter framework.

This post has attempted to overcome the veto power issue by presenting the procedural nature of the recommendation under Article 6 and its non-mandatory nature. While the framework presented in this post presents a legal possibility for the expulsion of a member state, the real-world desirability of such an action is questionable. The failure of the League of Nations imparts to us the counter-productive nature of expulsion and highlights the need to work within the framework. The way ahead lies not just in reinterpreting legal mechanisms but also in fostering a collective moral resolve to uphold the principles that underpin the United Nations and ensure that violations of international law do not go unaddressed. Only then can we ensure accountability and the survival of the cherished rules-based international legal order. Only then can we avoid the tragedy of another World War.

Shaurya Mahajan is a Second-Year Law student at Jindal Global Law School. His research interests include Public International Law, Constitutional Law, and Criminal Law.

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Picture Credit: UN Photo/Loey Felipe