The resilience of the Russian Federation is striking: Despite the EU’s historic sanctions, Russia’s gross domestic product is expected to grow by 1.3% this year; despite historic arms deliveries to Ukraine, Russian troops are advancing further westwards; despite attempts of foreign policy isolation, BRICS is growing; and despite the killing of the remaining opposition figure, Navalny, Putin has achieved his strongest election result since taking office – even if it is dubious. Can he be stopped? This blog post suggests an unconventional approach.
The wake of President Zelenskyy’s plea before the United Nations General Assembly for stripping Russia of its veto power in the UN Security Council has ignited a silent debate – echoing the sentiments of scholars who also argue for a re-evaluation of Russia’s status as the successor to the USSR in the Security Council. This text clarifies how to do it.
I. The Powerlessness of the United Nations
More than a hundred thousand estimated casualties, thousands of children forcibly deported to Russia – Ukraine’s sheer magnitude of suffering in its resistance against Russia’s war of aggression demands action. As Benjamin Ferencz, Prosecutor at the Nuremberg Trials, once remarked, ‘it causes me pain to see the world as it is. But not to do anything, not to try, that would be a wrong’. It demands action at the highest level the international community provides: the United Nations Security Council. Indeed, the United Nations was established with the noble purpose of preventing atrocities like those Russia is committing in Ukraine (see United Nations Charter, Preamble and Article 1(1)). Also evident is the Security Council’s inability to take any measures against this war. Russia’s veto power renders any resolution proposal void.
In his speech before the Council on 20 September 2023, Ukraine’s President Volodymyr Zelenskyy formulated the issue at stake, ‘Humankind can no longer hope for United Nations assistance in defending the borders of sovereign nations‘. Some scholars and politicians, having addressed the problems of the veto for decades, might feel vindicated.
President Zelenskyy proposed a multitude of reforms to counter the decreasing relevance of the UN. However, reminiscent of earlier reform attempts (such as the recommendations of the 2004 Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change or the G4 proposal), such profound changes appear unlikely to accede to a relevant stage soon.
Zelenskyy decried the Security Council’s misuse by Vladimir Putin’s Russia ‘to whitewash […] aggression and genocide‘. With every further day of war, the urgency to manoeuvre the United Nations out of its ineffectiveness increases if this institution is to uphold its purpose and credibility. Already in 2022, Ukraine’s President addressed the General Assembly and stated clearly the one small, most effective step, which is, unsurprisingly, to strip Russia of its veto power. Grant has argued that Zelenskyy’s appeal is not mere political wishful thinking (see here and here).
II. Zelenskyy instead of Putin
How to strip Russia of its veto power? The starting point is Art. 23(1) UN Charter. It reads, ‘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‘. But the Union of Soviet Socialist Republics does not exist anymore. So how to proceed?
The credentials of the Russian representative in the Security Council could be objected to, in which case the Council would decide the matter under Rule 17 of the Security Council’s Provisional Rules of Procedure. As deciding this objection would be a procedural matter, no veto right could be exercised (Article 27(2) UN Charter). Nine votes would be enough either to unseat the Russian representative without a replacement or to replace him by affirming the credentials of a representative of another State to sit in the USSR member seat, for example, Ukraine.
This proposal tries to circumvent the substantive question of State succession and continuation concerning Russia as the continuator of the USSR. Joris van de Riet has highlighted the thirty years of consistent, unopposed practice and the Security Council’s uniform acceptance in this matter. Challenging these entails the risk of destabilizing the entire UN system.
Instead, arguments in favour of the proposal have focused on the distinction between reason and result to justify Russia’s replacement on the Security Council. They stress that the Agreement establishing the Commonwealth of Independent States, dissolving the USSR, together with its subsequent accords, including the Alma Ata Declaration and Decision by the Council of Heads of States from 21 December 1991, is the legal reason for Russia to currently fill the USSR seat. With the war of aggression, Russia violated those agreements (as well as the UN Charter) and other rules of international law, including through the commission of war crimes), leaving the Russian representative without a legal reason to fill the USSR seat. In other words, ‘the legal basis on which Russia sat on the Security Council disappeared by force of Russia’s own violation of international law’. The international community’s response is more supportive of this position in 2022 (see for example Resolution ES-11/1 (141 votes in favour) which denounced Russia’s invasion of Ukraine as a violation of the UN Charter) than when Crimea was annexed in 2014 (Resolution A/RES/68/262, 100 votes in favour).
What remains suspicious, is the reason for Ukraine now filling the USSR seat: Certainly, there will be no new Alma Ata Declaration or Decision of the former USSR republics agreeing that Ukraine replace Russia in the USSR seat. Of the USSR republics forming the Commonwealth of Independent States, only Belarus and Ukraine are original members of the United Nations. While Russia, and Belarus (for complicity) “have disqualified themselves”, Ukraine is the only available original UN Member and former USSR republic (Art. 71 USSR Constitution of 1977 and Art. 13 USSR Constitution of 1936). It could therefore replace Russia in the Council.
However, the proposal relies on the notion that deciding over an objection to credentials is a procedural matter. It will be an open flank for Russia to counter: Russia will argue that this is a substantive matter (for which veto rights apply, Article 27(3) UN Charter) – or at least that the question of whether this is a procedural matter, itself, is not a procedural matter (double veto). Arguments in favour of our proposal rely on the heading and wording of Articles 28 to 32 (“Procedure”) (see further discussion in Zimmermann, Article 27, in Simma et al. (eds.), The Charter of the United Nations: A Commentary, Volume I, 3rd ed., para 80 et seq.) and the intention of the nations as set out in Section I of the Four-Power Statement of June 7, 1945: That decision on matters other than those falling under Chapter VIII will entail a procedural vote (albeit with a double veto where there is a question as to whether a procedural vote applies (see Section II)). These interpretations are supported by former decisions of the UN Security Council: the decision on Formosa (S/1836, September 29, 1950) and the Decision on Laos (S/PV 848 and S/PV 847, September 9, 1959) have qualified comparable questions on the double veto as a procedural matter.
III. The Dilemma
Hence, the central question revolves around determining the rightful successor to the USSR’s Security Council seat. Further questions are: Can the Security Council decide to recognize Russia’s membership conditionally, contingent on its compliance with international law? Is the Security Council the appropriate forum for resolving this issue? And can peacekeeping validate legal grounds for State succession?
However, the political feasibility of this course remains uncertain: Five non-permanent members rotated on January 1, 2024. And garnering nine out of fifteen votes, including those of the permanent members like China present a challenge. Furthermore, Russia’s efforts to form new alliances, such as BRICS, add another layer of complexity to find the nine votes. However, the Security Council’s convocation of an emergency session on the invasion (by an 11 to 1 vote — exceeding the Rule 17 procedural decision threshold by two); and India’s endorsement of the invitation of Ukraine’s President to address the Council exemplifies its recent shift. These examples underscore the political will to hold Russia accountable.
Asked about President Zelenskyy’s plea to remove Russia from the Security Council, German Foreign Minister Annalena Baerbock already denied (in German, from 03:30) support for such a move. Nevertheless, political positions can change, especially with not only moral but also legal possibilities backing them. And at the very least, a seat swap could constitute an element in the Russia-Ukraine negotiations.
Arne P. Wegner is a Ph.D. candidate at Université Paris 1 Panthéon-Sorbonne, supported by the Studienstiftung des deutschen Volkes. He has studied Psychology and Law in Berlin, Cambridge, Geneva, and Manila as a military officer (in reserve). He clerked at Freshfields, the European Commission, the European Court of Justice, and the Federal Chancellery under Merkel.