The Prospects of the Russian Federation’s Expulsion from UN Security Council

Russian Federation’s Expulsion from UN Security Council

YULIIA RUDENKO

For a while, abuse of the veto power by the permanent members of the United Nations Security Council has been one of the biggest concerns with regard to the impotence of the UN, undermining the credibility of international institutions.

In particular, after Russia had launched the full-scale invasion of Ukraine, the Security Council convened to pass a resolution to oblige Moscow to stop the use of force against Kyiv immediately and withdraw all troops from the territory of Ukraine without reservations. In this case, however, as inherent to Moscow, it once again exercised its veto power in the UN Security Council as a “shield to hide its aggression behind.”

Paradoxically, here what we see is Russia blocking the reaction to its aggression against Ukraine of the body created to support international peace and security, the mission failed by the League of Nations and by the UN today.

This instance was only one of the cases when Russia manipulated its veto power in fact violating jus cogens by allowing for its veto to de facto take priority as compared to imperative rule appearing as one of the main principles of international law.

Voting in favour of this resolution to make Russia stop aggression is not the only activity the Security Council could pursue to assist Ukraine in the new stage of the Russia-Ukraine conflict.

If not for Moscow’s veto, the Security Council could potentially conduct an investigation into the conflict (Article 34 UN Charter), recommend appropriate procedures or methods of adjustment (Article 36), call upon Russia to comply with such provisional measures as it deems necessary or desirable (Article 40), use a variety of means of pressure and sanctions in the exercise of these measures (Article 41), exercise demonstrations, blockade, and other operations by air, sea, or land forces (Article 42), decide upon peacekeeping measures etc.

The Prospects of the Russian Federation’s Expulsion from U N Security Council

Additionally, Security Council could pass the situation in which Russia allegedly has committed a crime of aggression to the Prosecutor of the International Criminal Court.

In order to compensate for the inability of the Security Council, the UN General Assembly has launched the mechanism provided for in the Uniting for Peace resolution dated 1950. These efforts are joined by the Council of Europe, which Parliamentary Assembly invited the UN General Assembly to ask for an advisory opinion of the International Court on possible limitations on the veto power concerning the Security Council’s permanent members (it is reasonable to believe that Russia is the member in question).

Even though the opinion is not legally binding, it appears somewhat authoritative. It may serve as an incentive for international lawyers to elaborate mechanisms to limit Russia’s veto power or deprive Russia of veto in the Security Council.

However, according to the author, depriving Moscow of its veto power in the Security Council will not be enough.

Taking into account that even non-permanent members are chosen to the Security Council with consideration of their dedication to the maintenance of international peace and security, it is justifiable to claim that Security Council’s permanent members should have an impeccable reputation, which is not the case for Russia. Apart from this, the balance of power that determined the composition of the Security Council at the moment of its creation does not appear relevant in today’s reality.

This leads to the conclusion that the international community would be better off if it fixed the problem of the Security Council fundamentally instead of masking the issue. The question of the Security Council reforms encompassed the following key aspects: membership, veto power, equal representation of the regions, the number of members, and methods of decision-making.

Ukraine stands for the widening of the membership circle of this security body, increasing the number of permanent and non-permanent members, and providing for an adequate degree of representation of the states belonging to the Eastern European regional group.

Serhii Kyslytsia, Ukraine’s Permanent Representative at the UN suggests that Russia should be expelled from the UN Security Council. This essay considers if this move is possible and what the alternatives are.

The first scenario of Moscow’s expulsion from the Security Council is to suspend its rights and privileges with regard to the UN membership (Article 5 UN Charter) or its complete expulsion from the UN (Article 6) on conditions set out in the Charter upon the General Assembly’s decision. However, this option may be workable exclusively upon the Security Council’s recommendation which is doomed to Russia’s veto.

According to Larry D. Johnson, then UN Assistant-Secretary-General on legal issues, this option is highly likely to fail. In his opinion, the maximum achievable result with this scenario is making a political statement to demonstrate UN member states’ support for Russia’s expulsion from the Organization.

The second option as suggested by the author is declaring the Russian Federation a mala fide member since there was no legal decision on Russia’s acceptance to the UN after the USSR’s dissolution.

The question inextricably related to the second option proposed is as follows: is Russia a successor or continuer of the USSR? Interestingly, the answer depends on the country and on the situation itself. In this context, it is worth mentioning the Baltic Shipping v Dillon case considered by the High Court of Australia in 1991, when the Soviet ship went down in the waters of New Zealand, causing damage to Australian citizens (it is important to note that the case was considered after the USSR’s dissolution).

State company Baltic Shipping Company was a property and subject to insurance on the side of the USSR. But since the Soviet Union disintegrated, the company’s lawyers claimed in the court that it is impossible to decide the party responsible for the incident, since it is impossible to determine who the real owner/insurer is. In response, the other party concerned raised the question about Security Council membership.

Then the Russian government immediately recognized itself responsible for the incident not wishing to cast doubt over the legitimacy of its place in the Security Council.

On 28 February, in the eleventh emergency special session of the United Nations General Assembly addressing the Russian invasion of Ukraine, Mr Kyslytsia mentioned that even though Russia did everything to legitimize its presence in the United Nations, its membership in the Organization is not legitimate. He went on to argue that this is due to the fact the General Assembly had never voted for Russia’s admission to the Organization after the dissolution of the USSR in 1991.

As Professor Buromensky M.V. argues, “as of today, none of the post-Soviet states has a legal obligation to recognize the transfer to Russia of its rights in the UN according to the principles of succession or any other rules. Ukraine and Belarus as UN members have never renounced their succession rights in the Organization with regard to the USSR and have the right to notify of this, forcing main UN bodies to react in accordance with the UN Charter.”

All Russian Federation did to take the place of the USSR in the Security Council was to send a respective letter to the Secretary-General on 24 December 1991. And the UN agreed.

American international law researched Ian Hurd advocates that Russia’s permanent seat in the Security Council is a mere fiction:

“The UN did not object [Russia’s membership in the Security Council] in 1991 and since then, and the inertial pressure of the next 20 years helped Russian strengthen its positions. Two decades of practice helped create a fiction that Russia is a permanent Security Council member.”

According to Mr Hurd, the UN did not do much to consider the consequences of accepting the respective letter from Russia and showed double standard in the question of transfer of rights of the states in the UN when declined the letters of Serbia and Montenegro that aspired to become Yugoslavia’s successor’s in the UN. If Russia had been perceived as a newly created state in 1991 instead of a USSR’s successor, it would have had to apply for UN membership which would question its permanent membership at the Security Council.

Larry Johnson, however, advocates that the aforementioned argument is null and void. In his opinion, the same logic can be applied to Ukraine with regard to its UN seat, since Kyiv obtained no official document of acceptance in 1991, it continued the membership of the former Ukrainian Soviet Socialist Republic. In his argument, Mr Johnson refers to the estoppel principle with regard to Russia’s seat in the UN:

“In 1991, there was no [sneaking]. Russians states what they claimed for; this was circulated among all members and any member could make a statement, ask a question, object, comment, make proposals etc. It is true that no “approval” decision was made with regard to this issue, although, there was no objection or complaint. Without any objections, the claim remained satisfied.

But this was an important discussion topic behind closed doors and in consultations. None of the governments deemed it appropriate to openly contest or cast doubt upon this issue or even bring it to the open discussion table. Moreover, Ukraine then supported Russia’s taking of the Security Council seat.”

In addition to that, 11 former USSR republics, including Ukraine, signed a number of treaties in Almaty on 21 December 1991, including the one that contained the following provision:

“The states of the Commonwealth support Russia’s continuation of USSR’s membership in the United Nations Organization, including permanent membership in the Security Council, and other international organizations.” Nevertheless, Vadym Karavaiev puts forward a counter-argument and believes that this decision of the Council of the Heads of States of the Commonwealth of Independent Nations is in essence a political statement rather than a legal obligation.

And it looks like the UN does not perceive Russia as an illegitimate member of the Organization. When Pakistan separated from India in 1947, UN member states decided within the Legal Committee that this case, as a general rule, complied with the legal principles presuming that the UN member continues to take part in the Organization notwithstanding the change of their borders. The UN’s stance may be summarized in the following sentence:

India Pak map — Pakistan separated from India

“Disappearance of a state as a judicial entity recognized in the international procedure shall take place before it can be considered that its rights and obligations stopped existing.”

Moreover, the UN has never contested this rule. The author agrees with the opinion of Mr Larry that bringing up the matter is now too late.

Taking into consideration that these two scenarios appear unrealistic, it is worth Ukraine putting effort into the third option and raising the question of the Security Council procedures to prevent Russia from presiding or voting in this body.

Invoking Rule 20 Provisional Rules of Procedure of the Security Council, it may be said that Russia had to right to preside over the Security Council while in conflict with Ukraine. In accordance with this rule, if a state presiding over the Security Council is sure that presiding in this particular situation will cause a conflict of interests, this state may hand over its presidency to the state which would preside next.

However, the pitfall here emerges that the presiding state has a right not an obligation to decide this matter independently, without other Security Council members, apart from the cases when the rules of procedure require the president to abstain from voting. But even under such a condition, the president may partake in the voting as a member of the Security Council.

The other procedural nuance worth attention is that under Article 27(3) UN Charter, in the decision concerning a separate chapter or article of the Charter, a permanent Security Council member that appears a party to a dispute must refrain from voting.

Taking into account that depriving Russia of the Security Council seat seems highly unlikely, it would be reasonable to concert effort to lobby the idea of limits on Russia’s votes in the Security Council in matters relating to Ukraine.

References:

UN Archives, SC/14808 dated 25 February 2022. URL: https://press.un.org/en/2022/sc14808.doc.htm

February 25, 2022/Council at War: Russia, Ukraine and the UN Security Council/Written by Devika Hovell. URL: https://www.ejiltalk.org/council-at-war-russia-ukraine-and-the-un-security-council/
May 06 2022/Limiting the Veto in the Face of Jus Cogens Violations: Russia’s Latest (Ab)use of the Veto/By Florent Beurret. URL: http://opiniojuris.org/2022/05/06/limiting-the-veto-in-the-face-of-jus-cogens-violations-russias-latest-abuse-of-the-veto/
1 March 2022/United Nations Response Options to Russia’s Aggression: Opportunities and Rabbit Holes/By Larry D. Johnson. URL:

Baltic SHipping v. Dillon. High Court of Australia (1993) 176 CLR 344. URL:

https://www.australiancontractlaw.info/cases/database/baltic-shipping-v-dillon

24 February 2022/Ukraine invasion: should Russia lose its seat on the UN Security Council?/By Andrew MacLeod. URL:

https://theconversation.com/ukraine-invasion-should-russia-lose-its-seat-on-the-un-security-council-177870

GA/12404 28 FEBRUARY 2022. URL: https://www.un.org/press/en/2022/ga12404.doc.htm
A/c.1/212 11 October 1947. URL: https://www.justsecurity.org/wp-content/uploads/2022/03/AC.1212-October-1947-1st-Committee-Admission-of-New-Members-Oct-1947.pdf
UN Security Council Provisional Rules of Procedure. URL: https://www.un.org/securitycouncil/ru/content/repertoire/provisional-rules-procedure#rule7
Вадим Караваєв * МОЖЛИВОСТІ ПРОТИДІЇ РОСІЙСЬКІЙ АГРЕСІЇ НА РІВНІ ООН
Буроменський М. В. Міжнародно-правові проблеми постійного членства Російської Федерації в Раді Безпеки ООН/Вісник Південного регіонального центру Національної академії правових наук України/2014.
РОЛЬ ООН У СУЧАСНОМУ СВІТІ матеріали наукового симпозіуму, присвяченого 75-річчю від дня заснування Організації Об’єднаних Націй м. Кам’янець-Подільський, 22 жовтня 2020 р. URL: http://kaf-archives.kpnu.edu.ua/wp-content/uploads/2021/02/zbirnyk-oon-1.pdf

06-11-2022

[Writer Yuliia Rudenko hold Bachelor’s degree in International Law and is pursuing Master’s in Security, Intelligence and Strategic Studies at the University of Glasgow. Her research interests include international humanitarian and criminal law, international justice, international security, Russian invasion of Ukraine, minority rights.]

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