18 Oct Removing Russia from the Security Council: Part One
When then-Nazi ally and co-aggressor Soviet Russia invaded Finland in 1939, the League of Nations went a good step further than the UN has done to date in response to Russia’s aggression against Ukraine: the League expelled the USSR. However, expulsion of Russia from the UN under UN Charter Article 6 is unlikely, because expulsion requires a substantive recommendation of the Security Council and Russia, or its sometimes-“friend without limits” China, would block an expulsion motion by exercising the Permanent Member veto. Attention therefore has turned to other ways that UN Members might limit Russia’s representation at the UN.
In particular, writers, diplomats, and political leaders, not least among them European Council president Charles Michel, Ireland’s Taoiseach Micheál Martin, and Ukraine’s President Volodymyr Zelensky, have suggested removing Russia from the Security Council. As this blog post was going to press, the U.S. Helsinki Commission, a joint body of the U.S. Senate and House responsible for monitoring compliance with the Helsinki Final Act, urged the U.S. Secretary of State to explore similar action; and the Parliamentary Assembly of the Counsel of Europe (PACE) called on the UN General Assembly to “look into the issue of the seat of the Russian Federation” on the Security Council. How precisely might Russia be removed from the Security Council, and what would the legal basis for such a measure be?
Credentials Procedure and the UN’s Improvisatory Ethos
UN Members on two occasions in the past have judged a particular Member delegation no longer fit to sit at the Organization’s table. On both occasions, the UN improvised a solution.
First, there was the delegation from Taipei that represented the Republic of China. The Taipei delegation filled the Republic of China seat from the founding of the UN in 1945 through the 1960s and into the 1970s. By 1971, however, a critical mass of socialist and non-aligned States judged it preferable to switch representation to the People’s Republic of China—that is to say, to give the China seat to a delegation from Beijing. The General Assembly addressed the matter as one of credentials procedure, even though making the switch in effect expelled Taiwan from the UN. Democratic countries objected, but the numbers were against them. No rigorous account was given of a legal basis at the UN to ground the move.
A few years later, in 1974, the General Assembly improvised again under its credentials procedures. This time, the political merits were unimpeachable: Apartheid South Africa had refused to mend its ways, and merely to repeat resolutions condemning that Member’s racist white-only rule was plainly futile. The General Assembly sought to expel South Africa from the UN outright, but this did not succeed. So, instead, the General Assembly declared that South Africa’s government no longer had a right to address the Assembly or to vote in that organ. As with the switch of China’s credentials from Taipei to Beijing, the move against South Africa followed no precise procedural pathway in the UN Charter or existing UN practice. The UN demonstrated again that an improvisatory ethos prevails, when the Member States judge a matter important enough that they must act.
Much as the General Assembly has voted in the past to switch the credentials of a State in the Assembly (China) and to suspend a State’s rights of representation in the Assembly (South Africa), the Security Council has rules of its own that it could use to remove Russia’s representatives from the Council. Here is how that would work.
Under Rule 17 of the Security Council’s Provisional Rules of Procedure,
[a]ny representative on the Security Council, to whose credentials objection has been made within the Security Council, shall continue to sit with the same rights as other representatives until the Security Council has decided the matter (emphasis added).
The mechanics under Rule 17 would be straightforward. A State other than Russia would confer credentials on one of its diplomats to sit in the USSR seat on the Council. (The seat that Russia now fills is still identified in Charter Article 23(1) as the USSR’s, a point to which this blogpost will return). The other State’s diplomat would present credentials to fill the USSR seat at the next meeting of the Council. Russia’s representative no doubt would object. In accordance with Rule 17, Russia’s representative would “continue to sit” on the Council—until the Council voted to decide the matter. Voting on “the matter”—i.e., on an objection to the credentials of a Security Council representative—is under the rules for deciding procedural matters, credentials being governed by the Council’s Provisional Rules of Procedure. Procedural matters are decided by vote of nine members. They are notsubject to veto (UN Charter Article 27(2)). If nine Members voted against Russia’s representative, then that representative would have to vacate the USSR seat, and the other State’s representative would fill it.
On what legal grounds might Members vote against Russia’s representative?
A preliminary observation follows from the UN’s past improvisatory approach. With Taiwan and with South Africa, the UN largely finessed the matter. Accordingly, UN practice suggests that no convincing legal case is needed to vote Russia’s representative off the Council. For example, Members of the Council might raise objection to Russia’s credentials and simply reject them, leaving the USSR seat empty. Members might say that Russia no longer fulfills the terms of Charter Article 4(1), which limits membership to “peace-loving States which accept the obligations contained in the… Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.” Leaving it at that, a very precise match between substantive grounds and procedural steps would be wanting: Article 4 concerns admission to membership, not expulsion. If Members wished to articulate grounds for removing Russia’s representatives from the Security Council that correlate to Rule 17 of the Council’s procedural rules, then they would have to say something more.
The Case for Russia’s Removal: The Post-Cold War Settlement Vitiated
It has been suggested in a number of quarters, including by Ukraine’s permanent representative at the United Nations, that Russia never sat lawfully in a Permanent Member’s seat on the Security Council. This view of the matter, with respect, is not wholly convincing, and serious questions would arise if Members adopted it. Joris van den Riet is right when he suggests that thirty years of practice, in which nobody complained of Russia’s presence on the Council, make it hard to accept that Russia’s presence was somehow void ab initio. Moreover, if the UN were to re-visit the matter and declare that Russia neverhad a legal basis to sit in the Security Council, then it would be open to ask whether any affirmative vote in the Council between 1991 and 2022 that needed Russia in its number to reach numerical majority, and any negative vote caused by Russia’s veto, should continue to have legal effect. Casting doubt over that much Security Council practice is an untenable result, but that is the result that arguably follows under the approach that would declare Russia’s presence on the Council to have been baseless from the start. A different approach is needed.
An approach that establishes the invalidity of Russia’s current presence in the Security Council, while accounting for Russia’s presence between 1991 and 2022, is what Ukraine and its friends need. To articulate such an approach, one starts with the Charter and its provision on Security Council Permanent Membership and the circumstances under which representatives of Russia came to fill the USSR seat on the Council.
To recall, UN Charter Article 23(1) stipulates that five permanent members sit on the Council. Each permanent member holds a veto. As named in Article 23(1), the five permanent members are “[t]he Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom… and the United States of America.” The USSR dissolved in December 1991. Russia was one of the Union Republics that comprised the USSR. The USSR seat, since December 1991, has been filled by representatives of Russia. The text of Article 23(1), however, remains the same: it is the USSR seat that Russia’s representatives now fill. Even as the nameplate in UN meeting rooms changed, the text in the UN Charter did not.
The switch from a USSR representative to a Russian representative, in the standard, if not quite unchallenged, account, is described as a result of legal continuity between the USSR and Russia. As the largest Union Republic of the USSR, Russia certainly had arguments it might have advanced to claim continuity with the deceased Soviet State. However, it did not advance them. It left the matter as expressed in the Alma Ata Declaration, of which it is a signatory: “With the establishment of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist.” With that position prominently affirmed, and not just unilaterally but among the States most immediately concerned, something more was needed than bald assertion, if Russia was to partake of USSR rights.
Continuity between States, or for that matter, succession between an old State and a new replacement, describes a legal result, not a legal reason for the result. States understand this, which helps explain why few of them accept that automatic operation of law determines legal relations following a succession of States: the 1978 Vienna Convention on succession of States in respect of treaties has only 23 parties; the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debates is not yet in force. Even to reach such limited subscription, the drafters of the Conventions carefully included “without prejudice” clauses, deferring to arrangements that States have “otherwise agreed” (e.g., 1983 Vienna Convention, Article 11 on passing of State property without compensation). It is to arrangements “otherwise agreed” that one turns, when one seeks the better explanation of how Russia came to fill the USSR Security Council seat.
Russia’s arrival at the Security Council in December 1991, on the day, had the appearance of automaticity: a Russian Federation representative presented credentials and was seated without ado. But, behind the physical act of seating, was an agreed settlement. The agreed settlement avoided what would have been “a serious constitutional crisis for the United Nations”—a vacancy in one of the Permanent Member seats on the Council. The agreed settlement thus addressed particular needs within the UN, but it also addressed the larger picture: it was part and parcel of the overall peaceful transition to a new political order in Russia and to Russia’s largely seamless inheritance of a vast array of Soviet rights, privileges, and assets.
In a Decision by the Council of Heads of State of the Commonwealth of Independent States attached to the Alma Ata Declaration of December 21, 1991, the States constituting the new Commonwealth, Ukraine among them, expressly “support[ed] Russia’s continuance of the membership of the Union of Soviet Socialist Republics in the United Nations, including permanent membership of the Security Council.” As observed above, continuity (or “continuance”) is a result; it is not the reason for the result. In the transactions between Russia and its fellow former USSR republics, it is to be submitted that a significant reason why a new state of affairs at the UN was achieved without friction was that those former USSR republics—the States most immediately concerned—all agreed that Russia would fill the USSR seat. The contemporaneous experience of Yugoslavia makes clear that the value of agreed settlement was neither abstract nor speculative. As for other States, including the other four Permanent Members of the Security Council, their agreement was secured as well in the form of unequivocal conduct: all welcomed the Russian Federation’s representative and participated, in various ways, in the remarkably smooth transition of Russia from Cold War antagonist to integrated member of the international community.
Upon the dissolution of the USSR, Russia obtained a great deal. The USSR’s strategic nuclear assets went to Russia. Much of the USSR’s navy went to Russia. So did the USSR’s network of early-warning facilities. Russia received the USSR’s space infrastructure, including the crown jewel, the Baikonur Cosmodrome, still administered by Russia though located in Kazakhstan. Russia gained rapid access to the international banking system. Long-standing technology export controls were lifted, thus opening the way to develop Russia’s oil, gas, and other raw materials to levels theretofore unattainable. Russian products were admitted in world trade, Russia eventually acceding to the WTO. And also among the USSR’s assets, Russia obtained the privilege of representing the USSR under Article 23(1) on the Security Council. This settlement of USSR rights on Russia resulted through agreement, not by operation of law.
What did Russia agree to in return? Russia agreed to respect the UN Charter, including the sovereignty and territorial integrity of its neighbors. Agreement in that regard was implicit from the start, renunciation of Charter obligations being inconceivable on the part of one of the five principal guarantors of international peace and security. Russia also expressed its agreement in numerous forums and instruments at the time and in the ensuing years. Important examples were the Alma Ata Protocols and Budapest Memoranda. Russia there affirmed the territorial integrity and independence of its neighbors, in the latter instrument extending a general security guarantee to Kazakhstan, Belarus, and Ukraine.
Russia’s side of the overall settlement of post-Soviet affairs thus was the easier and less costly to uphold. Russia promised little; Russia gained much. Seemingly, what Russia promised—respect for the territorial integrity and independence of its neighbors—it already was committed under general international law to give. Yet it proved to be that obligation—at once readily observed and utterly essential—that Russia would breach. Launching a war of aggression the likes of which Europe had not witnessed since 1945, Russia eviscerated the agreed settlement from which it had so greatly benefitted since 1991. The legal basis on which Russia sat on the Security Council disappeared by force of Russia’s own violation of international law.
The second of this two-part posting will address a step that the Security Council might take in partial remedy of Russia’s violation of international law —replacing the Russian representative with that of another Member State in the USSR Security Council seat.