On what grounds has Ukraine challenged Russia’s seat within the UN and how legitimate of a force for peace can the UN Security Council really be?
Russia’s seat within the United Nations Security Council has been challenged by Ukraine’s ambassador to the UN Sergiy Kyslytsya, during an urgent Council meeting held at Ukraine’s request.
The meeting was held on Wednesday with the aim of averting Russian aggression toward Ukraine after the country’s eastern separatist territories, Donetsk and Luhansk, requested military assistance from Moscow.
President Vladimir Putin formally recognised the breakaway regions as independent in an emotional address broadcast on state-run television on Monday.
Ambassador Kyslytsya addressed the Council after the start of military operations in Ukraine, citing Article 4 of the UN Charter, which deals with the admission of members to the Security Council, saying “Membership in the United Nations is open to all other peace-loving states, which accept the obligations contained in the present Charter and, in the judgement of the organisation, are able and willing to carry out these obligations.”
“Russia is not able to carry out any of the obligations,” he added.
Kyslytsya then went on to challenge the legitimacy of Russia’s UN membership, asking for documents showing Russia’s official admission to the organisation. He cited Article 4 paragraph 2 of the Charter, which says, “The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”
The Ambassador asked the UN Secretariat to bring forward the documents showing the recommendation of the Russian Federation to UN membership by the Security Council as well as documents showing a decision by the General Assembly to welcome the Russian Federation as a member.
“It would be a miracle if the Secretariat is able to produce such decisions,” he said.
What Kyslytsya was referring to is the fact that following the breakup of the Soviet Union, Article 23 of the UN Charter — which lists the Council’s 15 members — was never revised to remove the Union of Soviet Socialst Republics (USSR) from the list and the Russian Federation ascended to the USSR’s seat based on a decision made by the UN Office of Legal affairs.
So something interesting that could be developing at the UN: Ukraine appears to be laying the groundwork to challenge whether the Russian Federation is the legitimate successor to the USSR’s seat and veto on the Security Council— Hayes Brown (@HayesBrown) February 24, 2022
Russia never formally applied for UN membership after the collapse of the USSR, was never recommended by the Security Council or voted in by the General Assembly.
“There is nothing in the Charter of the United Nations about continuity as a sneaky way to get into the organisation,” Kyslytsya said ending his argument on Russia’s legitimacy in the UN.
The Russian Federation took the seat of the USSR in the UN after it declared itself to be the continuator state of the USSR on the grounds that it contained 51 percent of the former state’s population and 77 percent of its territory. Moscow was also the capital of the USSR.
The concept of continuity within the UN is a legal opinion that first arose following the partition of India in 1947.
In the lead up to the partition and the independence of India and Pakistan, the UN Legal Counsel prepared an opinion, which said that the state that maintains its international status, India, would continue as a member and the emerging state would have to apply for membership.
But the case of India and Pakistan was simple compared to the case of the Soviet Union in 1991, which broke into 15 independent states, and the case of Yugoslavia in 1992, which broke into six independent states.
According to Professor of Public International Law at the University of Oxford Dapo Akande, this is where the UN has applied both objective and subjective factors to determine which state continues as a member after territorial changes.
The UN has generally decided whether a member’s status is one of continuity depending on whether the governmental structures of the predecessor state remain in place in the state which claims to be a continuator state and whether the majority of the territory and population remain with that state.
However, these factors are not conclusive and other factors can be taken into consideration such as whether any of the other emerging states agree to the continuator claim as well as the reaction of third states.
What could Ukraine achieve by making such an argument at the Council meeting?
“The Charter does allow membership to be suspended under Article 5 or expelled under Article 6, but under the Charter, that requires preventive/enforcement actions to have been taken and a recommendation from the UNSC,” Professor of International Relations at the University of Wollongong Australia Dr Phil Orchard told TRT World.
“The two questions here would be can Ukraine get a UN General Assembly vote on the issue and then if it could get a two-thirds majority on it. Both, I think, are long shots, but it’s an interesting approach,” he added.
But why exactly is Ukraine so invested in Russia’s position within the UN?
The veto power that Russia holds under the UNSC seems to be at the centre of Ukraine’s concerns.
Following #Russia shameful use of its veto power, the UNGA must act to protect int'l peace and security and make recommendations. The protection of civilians in #Ukraine must be the absolute priority of all parties; to minimize civilian suffering and prioritize humanity. https://t.co/G2lCVfdrtX— Agnes Callamard (@AgnesCallamard) February 27, 2022
Russia’s veto power
The Security Council has primary responsibility, under the United Nations Charter, for the maintenance of international peace and security. The Council determines when and where a UN peace operation should be deployed after discussing with member states and the parties involved in an act of aggression. The UNSC can impose sanctions and even approve the use of force.
Each of the Council’s 15 members has the right to exercise one vote, but only the five permanent members (The United States, the United Kingdom, Russia, China and France) have veto power.
Veto power means that if any one of the permanent member states casts a negative vote in a pending UNSC decision, the resolution cannot be approved.
Since 1992, Russia has been the most frequent user of the veto, followed by the United States and China. As of December 2021, Russia has used its veto 118 times, the US 82 times, the UK 29 times, France 16 times, and China 17 times.
Russia’s high number of vetoes, however, can mainly be attributed to the period of 1946-1969 when a majority of the Security Council was aligned with the United States, which cast no vetoes because it won every vote. The Soviet Union cast 93 percent of all vetoes during these years to block resolutions from the Western majority.
As of late, Russia has come under fire mainly for using its veto power in Syria.
In fact, the UNSC has faced a crisis of almost complete paralysis over the war in Syria. According to the Syrian Network for Human rights, nearly a quarter of a million Syrians have died as of July 2020 as Russia vetoed 16 times in favour of the Syrian regime, including 10 joint vetoes with China.
Ukraine is no doubt concerned that Russia’s veto power could also drag it into a drawn-out, violent war.
Russia’s veto power would also make it difficult for Ukraine to obtain a vote on suspending or expelling Russia from the UNSC.
However, the way in which the People’s Republic of China ascended to the permanent member seat of the Republic of China following the Chinese Civil War, could be applied again in Russia’s case.
“Back in 1971, the General Assembly voted to restore the lawful rights of the People’s Republic of China and thereby remove Taiwan. Because of the way it was framed, the UNSC was not involved and so Taiwan was unable to veto it. Taiwan then argued it was illegal, but with no result,” Dr Orchard told TRT World.
A two-thirds majority vote under the People’s Republic of China’s precedent in 1971 could therefore be done if Ukraine’s argument is taken up by the UNSC, Dr Orchard explained.
Critics of the veto say that it is the most undemocratic element of the UN, being the main cause of inaction on war crimes and crimes against humanity, as it effectively prevents UN action against the permanent members and their allies.
So, given the blanket use of the UN veto, how legitimate of a force can the UNSC really be as tensions develop between Ukraine and Russia? Perhaps this is the reason Ukraine is attempting to undermine Russia’s presence as a permanent member in the UNSC.