11 Feb No, Russia Can (Still) Not be Removed From the UN Security Council: A Response to Thomas Grant and Others: Part Two
[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 my previous post for this blog on the question of Russia’s membership of the UN Security Council, I explained why the decision in 1991 to regard the Russian Federation as the State continuing the personality of the USSR was a clear and logical choice to make. In the second part of this two-part series, I will explore an important counterargument that is occasionally offered – including by Thomas Grant – namely that Ukraine, as an original member of the UN, has at least as much right as Russia to claim the USSR seat. This post will also discuss some issues surrounding the process of Russia’s taking over of the Soviet seat, especially as they relate to the proposed use of the credentials procedure.
But What About the Two Other Soviet States?
Recall the ICJ’s Order on provisional measures of 16 March 2022 in Ukraine v. Russian Federation cited in the previous post. In that order, the Court held 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)
This paragraph touches on another important – and somewhat confusing – issue: the fact that besides the USSR as a whole, two of its constituent republics (the Ukrainian SSR and the Byelorussian SSR) were members of the United Nations in their own right. On the other hand, the Russian SFSR – by far the biggest constituent republic of the USSR – was not a member itself; it was only represented through the USSR as a whole.
The Soviet Union thus effectively had three votes in the General Assembly (although represented separately, the Ukrainian SSR and Byelorussian SSR voted with the USSR for reasons that may be deemed fairly obvious) and a veto power in the Security Council. It may be pointed out that this was not entirely unique: India and the Philippines were both original members of the UN, though both were at that time still colonies of another Member State (the United Kingdom and the United States, respectively) and therefore did not have an independent foreign policy. The choice to include Ukraine and Belarus in the UN alongside the USSR at large was, obviously, a political one: it meant that Joseph Stalin effectively had three votes in the General Assembly (alongside the veto in the Security Council) instead of one. That being so, the end result was still that there were now two separate Soviet republics that were members in their own right, along with the USSR itself.
Although this may seem odd, this reflects the understanding that the Russian SFSR was to a large extent to be identified with the USSR as a whole: not only did it comprise about 50% of the population and 75% of the USSR’s territory, it also constituted the centre of political gravity of the Soviet Union. As Acquaviva has shown, based on among other things correspondence between Stalin and Roosevelt:
The Moscow-based governmental structure (…), Russia, was implicitly acknowledged as the ruling body of the USSR. Why would two additional seats be given to two lesser Republics (…), excluding Russia, if not for the reason that Russia was already considered as fully represented and identified with the Soviet Union?
In international relations the Soviet government and the acquiescent US counterpart perceived Russia as identical to the USSR, which in turn provides an explanation for the reason why Russia, unlike Belarus and Ukraine, did not require a distinct UN seat. The RSFSR was seen as the driving force of the Soviet Union: the identity of the two governments (the Russian one and the Union one) provides ample justification for conflating the two formally distinct polities into one.
Grant argues that this somewhat curious construction could be used to support a Ukrainian claim to the USSR’s seat on the Security Council: if Ukraine and Belarus were both original members of the UN alongside the USSR itself, either of them could claim to be the rightful heir to the USSR seat after its dissolution. I fail to see the logic in this. If Ukraine and the USSR were both separate members of the UN, then whatever their internal legal situation may have been, Ukraine (and likewise Belarus) was always regarded in the UN as something different from the USSR at large. To suggest that Ukraine could therefore be regarded as the successor to the USSR, as Grant does, would certainly be very odd: if Ukraine has always been seen as separate from the USSR, it cannot suddenly succeed to or continue the membership of another State, such as the USSR.
On the other hand, the decision made in 1991 to regard the Russian Federation as simply the continuation of the USSR under another name, fits well within this scheme and within the way in which Ukraine and Russia have historically been perceived within the UN: it allows Ukraine to remain a member of the UN in its own right while leaving the Soviet seat to the State that had always been regarded as the main part of the USSR, being Russia.
To once again compare this situation to that of the dissolution of Czechoslovakia: in that case the two newly created States of Czechia and Slovakia had agreed to divide some of the positions previously held by Czechoslovakia among themselves, but this was rejected by various organizations in the UN family. As Michael Scharf has pointed out, this has set a clear precedent that “only one State can be the continuation of a former member” – whereas letting Ukraine somehow succeed to the USSR seat on the Security Council while leaving Russia represented elsewhere in the UN would be to split up the USSR’s membership between two States.
Process and Problems
Grant has argued, both on this blog and elsewhere, that the Russian succession in the Security Council did not arise through an “automatic operation of law” but rather as the result of an explicitly political choice made during the dissolution of the Soviet Union; that choice, he argues, could be made again and very differently.
I ought to point out here that I do not, in fact, believe that Russia’s continuance of the USSR seat was merely the result of an automatic operation of law. I believe that a choice was made in 1991 to allow Russia to occupy the now-former USSR seat in the UN; my argument is rather that, given the political situation and the legal constraints, the only choice that could reasonably be made was to let Russia continue the USSR’s position. As Yehuda Blum remarked in 1993 (and as I pointed out in my previous post) that choice probably could have been made in a more elegant and legally solid way – but the choice was made, and it was most certainly a choice.
Moreover, as pointed out by former UN principal legal officer Larry D. Johnson, there was in fact a process around the change of name: Secretary General Pérez de Cuéllar, recognizing the UNSG’s very limited role in the question of credentials, simply circulated President Yeltsin’s letter and left it up to the Member States to decide. No member of the United Nations – including, notably, Ukraine – objected to Russia’s continuance on the Soviet seat, and the UN continued as if nothing had happened but a change of name and flag. This lack of opposition at the time – especially by other States that could have considered themselves entitled to the USSR seat on the Security Council – is of course understandable in light of the fact that almost all former Soviet republics had in fact agreed to let Russia take over that seat when they signed the Alma-Ata Protocols, which “express[ed] satisfaction that the Republic of Byelorussia and Ukraine continue to be U.N. members as sovereign independent states” and “support[ed] support Russia in taking over the U.S.S.R. membership in the U.N., including permanent membership in the Security Council and other international organizations”.
Grant also refers to two well-known precedents for this “creative” use of the credentials procedure: those of China and South Africa. In the former case, there was a dispute between two governments both claiming to be the legitimate government of “China”, which was resolved in favour of the People’s Republic of China – which had had effective control over virtually all of the territory and population. The governments represented as permanent members of the Security Council thus reflected the real-world balance of power, as intended by the drafters of the Charter: notwithstanding the literal text of Article 27(3), the People’s Republic of China was the only government capable of making a serious claim to be the “real” government of China.
The other precedent, the rejection of the credentials of South Africa in response to its policy of apartheid, is more controversial: the leading handbook of Schermers and Blokker points out that such a de facto suspension or expulsion would amount to “an illegal circumvention of special procedures such as those laid down in Articles 5 and 6 of the Charter” – action by the General Assembly upon the recommendation of the Security Council – and would arguably be ultra vires (para. 263). The decision to exclude South Africa from the work of the General Assembly clearly rested upon political support, but was legally extremely questionable.
The use of the credentials procedure to remove Russia from the Security Council would clearly more resemble the latter case. There is no other government that can plausibly claim to represent Russia or the Soviet Union – and that includes the government of Ukraine (which, it should be noted, does not claim that either). If the Security Council were to recognize Ukraine as the “real” continuation of the USSR on the basis of Rule 17 of its Provisional Rules of Procedure, as Grant suggests, that would inevitably suggest that the Russian Federation never was a member of the UN in the first place – because, it should be noted, the Russian representation within the UN as the continuation of the USSR extends to all organs of the UN, not only to the Security Council. This would be tantamount to the expulsion of Russia from the UN, in clear circumvention of the prescribed procedure of Article 6.
Deciding such a matter through the internal credentials procedure of the Security Council would also run counter to the well-established principle that the General Assembly has primacy in deciding upon questions of credentials and representation, as established in General Assembly Resolution 396(V). Somehow leaving Russia represented in the General Assembly while letting Ukraine take its place on the Security Council would mean that there are now two States claiming to be the legitimate continuation of the Soviet Union, somehow both part of the United Nations.
A Practical Note
There is also an important practical aspect to this situation, aside from the legal barriers: it assumes that if it is legally possible to remove Russia from the Security Council, the members of the UN will surely do so. I think this is a very questionable assumption, to say the least. Supporters of Russia’s removal from the Security Council have pointed towards the overwhelming majority (141 out of 193 in favour) by which the General Assembly condemned Russia’s invasion of Ukraine earlier this year, as well as the fact that the General Assembly followed this up by removing Russia from the UN Human Rights Council in April by a substantial majority (93 in favour, 24 against, with 58 abstentions), to argue that there are significant majorities within the UN that would support punishing Russia for its actions.
This is visible even within the Security Council: although the headlines mainly referred to Russia’s veto of a resolution condemning its purported annexation of certain parts of Ukraine, it is noteworthy that four other members – Brazil, India, China, and Gabon – all abstained from voting, not actively blocking the adoption of a resolution but not condemning Russia’s actions either. If there is not enough support to even condemn an action that is clearly a blatant violation of the UN Charter in every respect, it seems exceedingly unlikely that there would be anything close to a majority in support of risky legal manoeuvring to remove Russia from the Security Council – especially because some States (particularly China, of course) will see this creative reinterpretation of the Security Council’s membership as a very threatening precedent for their own position. Simply put: voting to condemn the Russian invasion of Ukraine is one thing, voting to overturn the structure of the Security Council and the UN system generally is quite another – especially when done for reasons that are clearly legally suspect.
To argue that Russia’s membership of the Security Council is in fact legal is bound to be a rather unpopular one, for very understandable reasons. Technical-legal objections to the brute reality of Russia’s presence on the Security Council resemble great-power apologetics and lawyering “for the sake of lawyering”. It recalls Immanuel Kant’s complaint in Toward Perpetual Peace about the “sorry comforters” of international law – that authorities like Grotius, Vattel, and Pufendorf are only cited in justification of the waging of war, and never in opposition to it; what good is international law, Kant wondered, if it only serves to shield great powers from accountability and is merely an apology for belligerent behaviour?
The problem with suggestions like these – much like proposals to, say, abolish the veto power in its entirety – is that they create a certain hope that something which is impossible for both legal and political reasons may yet be achievable. This is bound to attract – and in fact has already attracted – much attention from commentators and policy-makers, distracting them from other attempts to counter Russian aggression in Ukraine that may be much more realistic and actually achievable. The fact that Russia currently has a seat on the highest organ in matters of war and peace does not reflect positively on our international order – yet it is a feature that was built in very consciously in 1945, when that order was set up. That order is imperfect in more ways than can be counted, but suggestions for unachievable reform are no good to anyone.
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