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No, Russia cannot be removed from the UN Security Council

No, Russia cannot be removed from the UN Security Council

Russia’s invasion of Ukraine has drawn attention to a major problem in the UN system: Russia’s veto power in the Security Council. The proposed solution to remove Russia from the UNSC is misguided.

One of the more obvious issues plaguing international responses to Russia’s invasion of Ukraine has been the fact that Russia possesses a veto power in the United Nations Security Council. The UN Charter confers upon the Security Council the ‘primary responsibility for the maintenance of international peace and security’, which includes the right to take forcible action (whether military or in the form of sanctions) under Chapter VII of the Charter. The five permanent members of the Security Council — Russia, China, the United States, United Kingdom, and France — each have a veto over these decisions. Thus, Russia was able to veto a draft resolution condemning its own invasion in Ukraine.

The veto power of the permanent members does not extend to all Security Council decisions: procedural decisions simply require the affirmative vote of nine of the fifteen UNSC members. As a consequence, Russia’s vote against SC Resolution 2623 (2022) on 27 February did not stand in the way of its adoption, as the resolution was a procedural decision referring the matter to the General Assembly under the ‘Uniting for Peace’ procedure, which in turn on 2 March adopted by an overwhelming majority a resolution condemning the invasion. The General Assembly’s powers to enforce such resolutions, however, are extremely limited. This post explores several potential options of dealing with the deadlock in the Security Council — and argues that none of them are viable.

The UN Charter requires members of the Security Council to abstain from voting when the Council is dealing with a dispute to which they are a party. This duty, however, is limited to Chapter VI of the Charter, which deals with the pacific settlement of disputes; actions relating to international peace and security under Chapter VII are not subject to the requirement that parties to a conflict abstain from voting.

Another way of ‘dealing’ with Russia in this case - though admittedly not the most subtle of ways - would be to expel Russia from the UN pursuant to Article 6 of the Charter for ‘persistent violation’ of the principles of the Charter. The UN would not be the first international organisation to take action along these lines: the Council of Europe suspended Russia’s right of representation one day after the invasion and subsequently expelled the country. Expulsion from the UN, however, requires a vote by the General Assembly upon the recommendation of the Security Council - in which Russia, of course, has a veto. The rather radical option of amending the Charter to remove any reference to Russian membership runs into a similar issue: Article 108 of the Charter requires that any amendments be ratified by two thirds of the Members, including all five permanent members of the Security Council.

Is Russia even a member of the UN?

Perhaps the most creative option, which was suggested by several commentators - including Ukrainian Permanent Representative to the UN Sergiy Kyslytsya, former US Ambassador to Russia Michael McFaul, and political scientist Ian Hurd - is to establish that the Russian Federation is, in fact, not a permanent member of the UN Security Council at all. The argument comes down to a literal reading of Article 23(1) of the UN Charter, which provides that ‘The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council.’ There is an obvious issue here: the USSR ceased to exist in December 1991, and the Charter has not been amended to reflect its dissolution (there is also the thorny issue of the reference to the ‘Republic of China’, but that is an entirely different matter). As Kyslytsya argued in front of the Security Council, Russia’s ‘membership is not legitimate, as the General Assembly never voted on its admission to the Organisation following the fall of the Soviet Union in December 1991’.

Instead of regulating the succession of the USSR through a treaty or a resolution, Boris Yeltsin, the president of the Russian Federation - the USSR’s largest constituent country - simply informed the UN Secretary General on 24 December 1991 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.’ No other member of the UN — including Ukraine, which had been a member State in its own right since 1945 — objected to this continuation; the Alma-Ata Protocols, signed by most former Soviet republics including Ukraine in December 1991, explicitly supported Russia’s continuation of the USSR membership.

Contrary to what has been suggested, this is not unusual: as set out by Schermers and Blokker’s International Institutional Law, the larger part of a State which splits into more parts is usually the successor, including within international organisations (para. 105). This happened during the break-up of the United Arab Republic in 1961 (succeeded by Egypt), the secession of Singapore from Malaysia in 1969, and the break-up of Serbia and Montenegro in 2006 (succeeded by Serbia). The simple continuation of the USSR’s membership by the Russian Federation is thus perfectly in line with long-standing practice within the UN. Ukraine itself, in fact, was never formally admitted to the UN after the dissolution of the USSR in 1991; as pointed out by former UN assistant secretary general for legal affairs Larry D. Johnson, the State of ‘Ukraine’ simply continued the membership of the ‘Ukrainian Socialist Soviet Republic’, which had been admitted in 1945.

A consistent and uniform practice

Yet even in the absence of a formal settlement of the USSR’s succession, retroactively reading the Charter in such a way as to exclude the Russian Federation from the Security Council would run afoul of thirty years of very consistent and unopposed practice. In its 1971 Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), the ICJ dealt with South Africa’s argument that SC Resolution 284 (1970), in which the Security Council requested the Court’s opinion, was invalid as it was not adopted by an affirmative vote of all five permanent members (the UK and the USSR had abstained, as had Poland). Article 27(3) of the UN Charter explicitly requires that UNSC resolutions (other than procedural decisions) be adopted with ‘the concurring votes of the permanent members’. South Africa’s contention that this resolution could not have been adopted — as an abstention is not the same as a concurring vote — was in accordance with the literal text of the UN Charter.

The Court held, however, that ‘the proceedings of the Security Council extending over a long period’ supported the argument that the Council had ‘consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions’ and therefore ‘has been generally accepted by Members of the United Nations and evidences a general practice of that Organisation’ (Namibia, para. 22). A ‘consistent and uniform’ interpretation by the Security Council of its own practice, even if in direct contradiction to the literal text of the Charter, could thus be accepted as law.

There has certainly been a consistent and uniform interpretation by the Security Council and by all other UN organs of accepting the Russian Federation as the continuing State of the USSR — a practice to which, as far as I can see, no other State, including Ukraine, had objected in thirty years. To suggest that this reading of the relevant Charter provisions, which is in conformity with the UN practice surrounding State succession and was supported (at the time) by the other States that came out of the dissolution of the USSR, could be overturned at a whim by a creative interpretation of the Charter is to undermine every remaining element of stability in the UN system.

Concluding remarks

I feel obliged to point out here that none of this is intended to justify in any way Russia’s invasion of Ukraine. The invasion is an act of aggression, plain and simple, and a blatant violation of the UN Charter and many other rules of international law. Suggestions to remove Russia from the Security Council, however, are not only legally unfounded and unhelpful, but will distract from solutions in international law that could actually help Ukraine and the Ukrainian people. Yes, the UN system is dysfunctional in many ways — that does not mean that we should blow it up in a misguided attempt to save it.

14 Comments

Mark Sinsheimer

Very interesting discussion, thank you. These are my two cents on the matter.
1) International Public Law is Law in the making, and, in particular, the governance and role of international organizations. Doctrine could consider that no country should be allowed to veto matters concerning itself as it would defeat the very purpose of the UN's contribution to international law.
2) Regarding the Russian inheritance of the USSR, what makes current issues problematic is that Russia behaves to a significant extent "as if" it had also inherited USSR's empire over other states that were previously part of the USSR but have gained full independence since its breakup.
3) Russia should not be allowed to pretend that international matters are domestic matters, that war (without declaration) is only a "special operation", or that reshuffling territories between states of the ex-USSR is a non-event.
4) It certainly should not be allowed to use its status as permanent member of the SCUN to block condemnation of such blatant violations of international law. Russia recognized Ukraine as an independent state, and the two countries exchanged ambassadors. Russia should not be allowed to revert time and gradually morph back into USSR.
5) Such issues are more of a threat to international law than the technicalities of diverting from strict observance of SCUN veto principles given the specific context. It is probable that a one-step definitive exclusion of Russia or even temporary exclusion pertaining to issues related to its specific nature as heir to USSR could happen. Yet, I believe that pressure could be applied by drafting resolutions that would 1) tighten the requirements for the use of SCUN permanent member vetos and 2) vigorously remind Russia that its inheritance of the USSR's chair comes with obligations towards its former sister states.

Mustafa Queynte

Very interesting; so to paraphrase Russia can't be expelled from the Security Council because a General Assembly vote on such a matter has to be approved by the security council? I'd expect that the assembly should have the power to cast a vote on matters under its own guidance? Then if there's a super majority it passes the security council regardless? Membership seems anachronistic. If it's about having nuclear weapons then Iran, North Korea etc. should be on the council. Their economy at $1.4 trillion is relatively small with many countries way bigger. Their population at 140 million is small compared to many countries and if it's land area how about getting rid of France and the UK and inviting Canada, Australia and Brazil.

Joris van de Riet

I would not put it that way: the General Assembly does not quite require the "approval" of the UNSC to vote, but the process for expulsion from the UN requires the participation of both UNSC and UNGA. If the UNGA were to somehow try to "work around" the UNSC in this process it would directly violate the Charter (cf. the ICJ 1948 Advisory Opinion on Conditions of Admission of a State to Membership in the United Nations, where the Court explicitly says this for the admission procedure). There is no procedure for "overruling" the UNSC's decisions or vetoes through a 2/3 majority in the UNGA (though some in the media seem to think there is - they should consult a lawyer before writing!). Many would agree that Security Council membership is anachronistic given the current state of power in the world, but at least for the time being its composition is a given that cannot be changed without the consent of the current members.

Van Lee

Actually, the reason you can't kick Russia off the Security Council is because they legally aren't a member of the Security Council. And they never have been!

Article 23 specifically lists the five permanent members of the UN, and Russia is not one of them. The Union of Soviet Socialist Republics is, but that isn't Russia. Russia was just a member. For that matter, so was Ukraine, so Ukraine has just as much legal authority as a permanent member of the UN as Russia does.

Joris van de Riet

... did you actually read the post?

Richard Charbonneau

I have to politely disagree, this is total nonsense, the UN could kick Russia out tomorrow, what could Russia do, sue the whole world? The fact is the UN is weaker then the League of Nations, it's weaker then Britain and France on Hitler in the 1930's, it is a joke and just like the League before it, it needs to be dissolved. Russia and China shouldn't have ever even been invited to it for starters, and NO one, not even the US should have total Veto powers. Every nation on earth says X, but one says Y... the Y's have it, that is stupid beyond words.

Glenn Simpson

Perhaps the fairest outcome would be for the Russian Federation, Ukraine and Belarus to take turns, week in succession, in holding the seat? Just joking, as the RF would resign from the UN if it lost its veto power - that, after all, is the only reason it is a UN member - and great powers resigning from world bodies didn’t end well in the 1930s. So I consider that even if it were possible to remove the RF from the Security Council, it would not be either desirable or helpful. International legal arrangements, like war crimes tribunals, are consequences of victory, not its antecedents. Regrettably, what Bismarck said in 1856 remains true - the great issues of the day will not be resolved by resolutions and majority votes but by iron and blood.

N Tweedy

I would argue that it would be no great loss if Russia lost its seat on the Security Council AND subsequently left the U.N. Putin won't be in power forever, and it's hard to imagine his successor being as belligerent as he is. The U.N. needs to show strength right now or else it is doomed to irrelevance.

N Tweedy

If ‘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.’ , doesn't that mean those Independent States could withdraw their support? I could see getting the Baltic States, Armenia, Azerbaijan, Moldova, Ukraine (obviously) and probably Uzbekistan to agree to withdrawing that consent. It might not be a fatal blow to Russia on the Security Council but it could lead to a vigorous debate which could lead to...

Joris van de Riet

The main issue here is that much like with other treaties, consent can hardly be withdrawn once given: once the issue of the USSR's succession was settled, it was settled for good. I very much doubt whether that could be changed even with the consent of all former USSR countries: we've had thirty years of uncontested practice of the Russian Federation as a UNSC member, so short of literally reconstituting the Soviet Union and dissolving it again with a different successor State Russia is fixed as the USSR's successor in the UN.

N Tweedy

Thank you for your response. I'm certainly no legal scholar so forgive me if I'm off base, but couldn't former members of the U.S.S.R. cite a peremptory norm? Forgive me for using Wikipedia as a source, but it is indicated that "They are not listed or defined by any authoritative body, but arise out of case law and changing social and political attitudes. Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, and torture. As an example, international tribunals have held that it is impermissible for a state to acquire territory through war." This would certainly apply to Russia's aggression against Ukraine. Would a peremptory norm need to be included in the conditions of the original treaty or could they not be invoked at a later date?

Tom Kimanzi

If USSR as constituted at the time of the formation of the UN is a member of the UNSC, then even Ukraine is a member, by virtue of being part of USSR at that time

DickJennings

A rational arrangement for the Security Council, which would meet the case here fully, is a "step-aside" provision in the Charter by which a Security Council member cannot vote on a resolution concerning its own (alleged) behaviour or its own direct interests. Morally, that should be the rule in any case - permanent membership of the SC, in particular, should be regarded as a position of responsibility - a trusteeship - not of unfettered entitlement.

There is presumably no chance of China agreeing to that. Or, in fairness, much chance of US agreement based on its past attitude to international institutions.

Is mentioning this obvious thought therefore a waste of time? I think not. Ideals do tend to be unattainable, but that's never a good reason for forgetting about them.

Juan Murua

Great brief on the facts and rules that apply! Thank you so much for aiding in the clarification on this matter.