Russia cannot be excluded from UN Security Council without dissolving UN

What does Ukraine want?

On December 26, the Ministry of Foreign Affairs issued a statement "on the illegitimacy of the Russian Federation's membership in the UN Security Council and the United Nations as a whole". 

Ukraine called on the UN member states to restore the application of the UN Charter on the issue of the legitimacy of the Russian Federation's membership in the UN, to deprive the Russian Federation of the status of a permanent member of the UN Security Council and to expel it from the UN as a whole.

The statement reads: "The Russian Federation has taken the seat of a permanent member of the UN Security Council bypassing the procedures established by the UN Charter. This happened on the basis of a simple letter from the President of the Russian Soviet Federative Socialist Republic Boris Yeltsin to the UN Secretary-General, which was sent on December 24, 31 years ago. The current UN Charter does not contain the words "Russian Federation". They are absent, in particular, in Article 23 of the Charter, which lists the permanent members of the UN Security Council."

According to the Ministry of Foreign Affairs, the issue of Russia's membership in the UN and the status of a permanent member of the Security Council should have been considered in December 1991 "duly by the Security Council and the General Assembly in accordance with Article 4 of the UN Charter".

Everything seems to be correct... It is true that the UN Charter does not mention that the Russian Federation is a permanent member of the Security Council. Now the USSR is listed there, although 31 years have passed since its collapse. 

Lessons of the League of Nations

The League of Nations was before the UN. It was created after World War I as a platform where all the states of the world gathered to discuss all the problems of international relations, to find solutions to prevent new wars. In total, 63 countries were members of this organization. Some states became members of the organization, some left it. There was the Council of the League of Nations, which consisted of 4 permanent members (Great Britain, France, Italy, Japan) and 4 non-permanent. According to the plan, the fifth permanent member was to be the United States, but it changed its mind to participate in this organization (the Senate refused to ratify the Treaty of Versailles, which defined the borders of the post-war world).

In 1926, Germany became the fifth permanent member of the Council. In 1933, Germany and Japan withdrew from the League of Nations, leaving the Council with 3 permanent members.

In 1934, the Soviet Union became a member of the League of Nations and a permanent member of the Council (4 in total). In 1939, the USSR was expelled from the organization because of the war against Finland.

In 1937, Italy left the League.

As of 1939, the League of Nations Council had 2 permanent members (Great Britain and France), which meant the collapse of the organization. Because a significant part of the states that had significant military and economic potential did not participate in it. The League of Nations lost its legitimacy, which was provided by the participation of such states.

How the modern architecture of the UN emerged

The world was defined during the Yalta and Potsdam conferences by the victorious powers in World War II:

- The United States (including the territory of the modern Philippines),

- Great Britain (then an empire on 22% of the world's territory),

- France (empire on the territory of more than 30 modern states),

- Soviet Union (USSR, one sixth of the landmass).  

During the mentioned conferences, the spheres of influence of these states and mechanisms for maintaining a balance of interests and influence between them were determined. All this was laid down in the architecture of the UN, which was created to replace the League of Nations, taking into account the experience of this organization.

"That is, the founding fathers of the UN were those states that had the largest military forces, as well as industry, economy, the largest population and territory."

Also, China, which was one of the largest participants of World War II, was added to the four states.

These five states formally spoke on behalf of the majority of the population of the world at that time. And the main thing is that they had the greatest military power to restrain each other and to force together by sanctions or military force to peace any state that would try to unleash a war of aggression. To force on the basis of international law, which are developed and come into force on the basis of general consensus. That is, to create an analogue of a "social contract" between sovereign states that voluntarily agree to comply with these norms in their activities.

All five states then positioned themselves as the leading powers of the post-war world, as guarantors that there would be no war like World War II in the future.

The UN Charter enshrined the privileged right of the five member states of the Security Council to use sanctions and military force. However, all these hegemonic states were from the very beginning opponents and competitors in international relations. Therefore, the UN Security Council has become an instrument for maintaining a balance between them through non-military means. And the main tool to guarantee such a balance was the right of veto for each of the five states. As a safeguard against conspiracy against one state by all other states.

Of course, in the situation when the UN was created with such an architecture, with such meanings, no one even considered the possibility of depriving any of these five states of the status of a permanent member of the Security Council and exclusion from the UN in general. 

That is, the Council of lifelong hegemons, lifelong "directors of the world".

Nuclear accents during the Cold war and détente

Over time, the US, the USSR, the UK, France, and China have all developed nuclear weapons, and the UN Security Council has become an instrument for balancing the interests of nuclear powers. During the Cold War, it was about the balance between the United States and the Soviet Union, which had the largest nuclear capabilities and fought for influence in the world.

The norms of international law relating to nuclear weapons, other weapons of mass destruction, and conventional arms control were the product of joint agreement mainly between the USSR on the one hand and the United States and its allies on the other. The architecture of world security consisted of both norms adopted by the UN and bilateral US-Soviet treaties and agreements.

This was the situation as of 1991.  

How Russia took the place of the USSR in the UN Security Council. Chinese precedent 

The collapse of the Soviet Union, which was one of the two largest nuclear powers and one of the two pillars of the global security architecture, raised the question for the United States and the West in general: what will happen to the Soviet nuclear potential, to the treaties on weapons of mass destruction and conventional weapons in Europe? 

The RSFSR was the largest of the states that emerged after the USSR. Moscow was the Soviet capital, and became Russian. Soviet bodies of state power and military administration became Russian. Most nuclear and other weapons of mass destruction were deployed on Russian territory(which became just a federation).

The Russian Federation declared that it was becoming the successor of the Soviet Union in the issues of compliance with treaties on nuclear weapons, chemical, biological weapons, conventional weapons, international conventions on outer space, maritime space and many others. It also pledged to pay the debts of the USSR and the Russian Empire.

This became the basis of an informal agreement between Moscow on the one hand and Western and other states on the other hand on Russia's taking the seat of a permanent member of the UN Security Council, which belonged to the Soviet Union.

Thus, there are no protocols on the consideration of the right of the Russian Federation to permanent membership, on the adoption of the relevant decision. This, unlike domestic law in international relations, is part of the usual practice of recognizing the legitimacy of the status without documentary evidence. The absence of objections means consent.

In 1991 the United States, Great Britain, France, and all other countries of the world, including Ukraine, recognized Russia as the successor of the Soviet Union in the UN Security Council. No one has objected to this for decades. 

Moreover, this recognition has been documented for 30 years: The Security Council and the UN General Assembly with Russia as a permanent member of the Security Council have adopted numerous resolutions, including sanctions against the DPRK, Iran, etc.

In addition, the UN Charter does not contain a procedure for granting or withdrawing the status of a permanent member of the Security Council. There is just a list in paragraph 1 of Article 23: "The Security Council shall consist of fifteen Members. 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 are permanent members of the Security Council. The General Assembly shall elect ten other Members of the Organization as non-permanent members of the Security Council".

It is obvious from the list that the situation with the transfer of powers to Russia was not the first. Although the Charter names the "Republic of China" (the one in Taiwan) as a permanent member, for 51 years the "People's Republic of China" with its capital in Beijing has been a permanent member of the Security Council instead. The transfer of powers was formalized by the UN General Assembly Resolution 2758 (XXVI) "Restoration of the legitimate rights of the People's Republic of China in the United Nations" of October 25, 1971. But there is also a nuance here: “two Chinas” emerged as a result of the civil war, and the powers in the UN were transferred from one Chinese government (in Taipei) to the second Chinese government (in Beijing). 

Political and procedural aspects

The consensus of tacit agreement on Russia in the UN Security Council lasted for three decades. Now the Ministry of Foreign Affairs of Ukraine essentially proposes that the United States, the United Kingdom, France, China, all other states of the world recognize that:

- either they are incompetent in matters of international law and international relations;

- or they do not know the content of the UN Charter;

- or they all deliberately ignored the UN Charter.

In this situation, one should not even expect that someone will recognize the mistake of transferring the permanent member seat to Russia in the way it was done. Because there was nothing that could be considered a mistake: in 1991, everyone hoped that Russia was irrevocably on the path of democratic development, and no one expected it to turn into an aggressor state that started a major war in Europe to revise its borders. In 1991, Russia recognized the principle of inviolability of borders.

In 2022, Russia launched a full-scale direct armed aggression against Ukraine to seize its territory, change the government and destroy the identity of the Ukrainian people.

There is no doubt that it would be right to punish Russia for this by excluding it from the UN Security Council or the UN in general. But this cannot be implemented through the voting procedure. 

The General Assembly has the power to deprive certain states of their privileges, admit them to the UN and expel them from the organization. 

Paragraph 2 of Article 18 of the UN Charter states: "Decisions of the General Assembly on important questions shall be taken by a two-thirds majority of the members present and voting. These questions shall include: recommendations for the maintenance of international peace and security, ... the admission of new Members to the United Nations, the suspension of the rights and privileges of Members, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions".

Paragraph 3 of Article 27 of the UN Charter refers to the adoption of decisions by the Security Council (except for procedural matters): "Decisions of the Security Council on all other matters shall be carried by the affirmative vote of nine members of the Council, including the affirmative votes of all the permanent members of the Council, with a party to the dispute abstaining from voting in the case of a decision under Chapter VI and under Article 52, paragraph 3". That is, if the issue of Russia is considered, the decision on it should be supported by the other 4 permanent members of the Security Council: USA, Great Britain, France and China. What will be their position?

China will vote against depriving Russia of the right of veto, the status of a permanent member of the UN Security Council, against its expulsion from the UN. Because it will not create precedents that can be used against itself even hypothetically. And because Beijing will not strengthen the influence of the United States in the Security Council. China needs Russia there as a tool to deter the United States, Britain and the West in general.   

The United States, Britain and France will only as a last resort expel the world's second nuclear power from the UN Security Council. For example, if there are more large-scale war crimes by the Russian Federation, its use of weapons of mass destruction. Western countries will not vote for depriving Russia of the status of a permanent member of the UN Security Council for three reasons:

- not to provoke the Kremlin to unilaterally withdraw from all treaties related to weapons of mass destruction, maritime and airspace, space, etc;   

- not to provoke Moscow's unilateral withdrawal from various interstate mechanisms and formats related to containment of the nuclear program of Iran, DPRK, fight against terrorism in different regions of the world;

- not to call into question all the UN Security Council resolutions adopted after 1991.

Russia's destructive, aggressive behavior may become even more destructive and aggressive. Russia's expulsion from the Security Council will definitely lead to its unilateral withdrawal from the UN, to the unilateral renunciation of its obligations to comply with the international conventions to which it still adheres.  

The Security Council is the foundation of the entire UN. If it is destroyed, this organization itself will collapse.

What are the prospects?

There is no doubt that the UN with such a Security Council is a very outdated structure, which was generated by the international political realities of 1945. A major renovation is needed - bringing the UN in line with the international political realities of today.

A more or less realistic scenario is what was proposed earlier by Western partners: either to try to suspend Russia's membership in the UN Security Council, or to try to deprive it of the right to vote on the Russian-Ukrainian conflict. 

Another option is to dissolve the UN, to reboot it as an organization of the collective system of global security. To develop a new interstate "social contract", to create a new organization, its new Security Council with new powers. But this cannot be done without the participation of all, including Russia, China and other influential states. Otherwise, the renewed UN will not have legitimacy, just like the League of Nations in the late 1930s. The current UN has not yet lost its legitimacy, although it has demonstrated inefficiency on many issues.

A vicious circle, so far 

More real opportunities to reform the UN Security Council may appear after Russia's defeat in the war against Ukraine, when there will be a new Russian state with a constructive position in international relations and the absence of imperial syndrome.   

Source

About the author. Volodymyr Volia, political scientist, international expert

The editors do not always share the opinions expressed by the authors of the blogs.