Kost Elisevich

How is it that a rogue nation remains a permanent member of the United Nations (UN) Security Council as it continues to violate the charter upon which it is a signatory? Russia’s behavior in the past decade alone has demonstrated its willingness to commit incursions into neighboring states under the false pretense of defending its own people or claiming a misguided irredentist purpose in retaking territory that arguably wasn’t theirs in the first place. It is reminiscent of Hitler’s march into the Rhineland and the Sudetenland prior to the outbreak of World War II or of Stalin’s overtaking of the Baltic states in 1940. Russia’s standard defense in these matters has been to avert attention by claiming similar acts of aggression by other nations, particularly the United States, although the argument here remains rather strained at times against the overt and naked belligerence of an authoritarian regime. Moreover, as American historian Timothy Snyder has pointed out, the United States admits to its own faults and missteps and airs such issues in the open, whereas Russia appears only to see what it can get away with to achieve its aims and moves forward.

Standard global responses to this behavior have come by way of economic sanctions targeting banking, industry and complicit prominent individuals and, as in the case of Ukraine, military support. Some fear that retaliatory responses from Russia hinder such efforts with reciprocal effects upon their own economies as with the threat of energy blackmail. Two global agencies, however, remain largely independent of such retaliation – the International Criminal Court (ICC) and the United Nations (UN). The former has begun its investigations with preliminary reporting indicating ‘reasonable grounds’ for believing that crimes have been committed. The UN General Assembly has shown its disapproval with condemnation of Russia’s invasion. The response is meaningful but does not carry the intended impact upon the perpetrator. It is not something that the Russian citizen at large can be motivated to regard as serious. Expulsion of Russia from the UN, on the other hand, would raise eyebrows enough to have its citizenry understand that it is becoming irrelevant in the context of world affairs – a notion that does not align with Russian chauvinism. Criminal indictment would very much compound the problem for them. Indeed, there appear to be several atrocities to be accounted for.

So, let’s back up. The Charter of the United Nations came into effect in June 1945 and the Union of Soviet Socialist Republics (USSR) became a member in October of that year, adding its agreement to the charter’s preamble,

‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.’

Although provision was included to remove a nation from membership for particular misdeeds, the UN Charter fatally declared that it could only do so with the recommendation of the Security Council within which Russia sits as a permanent member and, as such, has veto power. Article 6 of the charter reads,

‘a Member of the United Nations which has persistently violated the principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.’

Ukraine declared itself an independent democratic state on September 24, 1991, with its own constitution stating the territory of a sovereign Ukraine is ‘integral and inviolable’ and that ‘only the Constitution and laws of Ukraine are applicable on its territory.’ On December 1, 1991, a national referendum was held on the confirmation of the declaration with 92% voting in favor. Ironically, 80% in the eastern oblasts of Zaporizhia, Dnipropetrovsk, Donetsk and Kharkiv, an area considered to have been russified, voted in favor of independence. A 54% majority in the Crimea did the same. Both outside and inside observers attested to the conduct of the referendum according to accepted democratic principles. Ukraine retained its member status in the UN and was accordingly recognized by the world community.

Over the succeeding three decades, Russian meddling in Ukrainian politics continued, reaching its peak in the last decade. This prompted the Maidan Revolution in 2013-14 that ousted then President Viktor Yanukovych, forcing him to flee to Russia for protection. Overt Russian retaliation came quickly with the infiltration of Russian paramilitary operatives into the Crimea followed by an illegal annexation after a sham plebiscite. A process of russification, well-established during the Soviet period and, beforehand, during the time of the Russian empire, has continued in eastern Ukraine prompting a separatist movement, encouraged by ongoing Russian rhetoric. Now, with a claim that a Nazi regime, lead by a Ukrainian Jew, is threatening the welfare of an ethnic Russian population in a sovereign nation, Russia has chosen to invade it with the express intention of annexing some fraction of it or, perhaps, its entire land mass.

Discussion regarding the legitimacy of Russia’s occupation of a permanent seat on the Security Council has been ongoing over the past few years. The argument has been made that its current place on the council is inviolable, although a more recent interpretation of events by which Russia was allowed to take this seat has taken place and casts more than a shadow on the matter.

In December 1991, the Union of Soviet Socialist Republics (USSR) ceased to exist. Boris Yeltsin, the President of the then Russian Soviet Federative Socialist Republic (RSFSR) informed the UN Secretary General, Javier Pérez de Cuéllar, that the RSFSR or Russian Federation (RF) would continue in the place of the USSR. He had the apparent backing of the newly established Commonwealth of Independent States (CIS). The Alma-ata (Almaty) Declaration of 1991 brought together 11 nations (Azerbaijan, Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Tajikistan, Turkmenistan, Uzbekistan, Ukraine), previously each a part of the USSR, into the CIS. It was agreed that the nations would remain independent of one another as sovereign entities, ‘recognizing and respecting territorial integrity of each other and the inviolability of existing borders.’ The principles of equality were to be maintained among them without interference in each other’s internal affairs including the use of force or economic means of pressure. Although Ukraine ratified the creation agreement, it did not ratify the CIS charter and chose not to become a full member as it disagreed with the notion that the RF would become the only legal successor to the USSR in its representation within the UN and as a permanent member of the Security Council. Ukraine formally ended its participation in 2018. It did continue in its own right as a member of the UN.

The CIS charter contained the provision that each state had the right to relinquish control over any nuclear weapons in its possession. In this regard, at the time, Ukraine housed the world’s third-largest nuclear arsenal. In the 1994 Budapest Memorandum, it agreed to remove its entire military nuclear infrastructure on the guarantee that its ‘independence, sovereignty and existing borders’ would be respected. The memorandum was signed by Ukraine, the United States, the United Kingdom and Russia.

The basis for the RF assuming the seat on the Security Council previously occupied by the USSR appears justified by precedent alone as noted in International Institutional Law (HG Schermers & NM Blokker, 6^th ed, 2018). Within any legitimate international organization, the place of a state that has split apart may be assumed by a successor state which was the larger constituent part of the original state. Joris van de Riet (Europa Institute) in his review of the matter, cited a number of situations to be taken as examples. One of these was the issue of the Federal Republic of Yugoslavia which was proclaimed in 1992 by Serbia and Montenegro as the successor to the former Socialist Federal Republic of Yugoslavia following the departure of the remaining states of Slovenia, Croatia, Bosnia Herzegovina and Macedonia to become independent nations. There was a problem, however. The United States and European Union, at the time, withheld recognition of the Federal Republic of Yugoslavia because of the Serbian invasion of Bosnia-Herzegovina (1992-5). International sanctions were imposed upon the Federal Republic by the Security Council and the claim of succession to the seat previously held by the Socialist Federal Republic of Yugoslavia was rejected by the UN. The Federal Republic was finally granted admission to the UN in 2000 and, in 2006, Serbia and Montenegro split apart as independent states with Serbia assuming the vacated seat of the Federal Republic.

As regards the RF, the Treaty of Federation was signed in March 1992 between Russia and 86 federal entities within its territory, 21 of which were designated republics, in order to acknowledge the several ethnic distinctions within the RF itself and prevent separatist movements from destabilizing the new nation. Bilateral agreements between individual republics and the federal government allowed the former to have some authority over internal affairs, foreign relations and their economy. These agreements, however, ultimately disappeared with Putin’s gradual centralization of authority so that by 2017, the RF, in fact, ceased to exist as a federation. Despite this, most seem to acknowledge that the differences between the RF and Russia are apparently negligible. Its actions in the context of the principles set forth by both the CIS and the UN arguably challenge its legitimacy as a member nation in either forum.

The jus ad bellum promoted by Russia with its current war lacks standing for its blatant silliness. The mere notion that an authentic, democratically led nation, a founding member of the UN, that has abided by the principles of the UN for the past three decades, abandoned its nuclear arsenal and remained at peace with its neighbors has now been labeled a neo-Nazi camp with intentions of harming its own citizens and threatening the stability of the region is an affront to the global intellect.

Thomas D. Grant (Lauterpacht Centre for International Law at University of Cambridge), writing in the Center for European Policy Analysis (September 26, 2022), raises argument that, at the time of the dissolution of the USSR, it would have been equally suitable for Ukraine to have filled the USSR Security Council seat rather than the Russian Federation. Indeed, Ukraine had objected to the process at the time, refusing to ratify the CIS charter, stating the plan. Moreover, precedent does exist for the UN rejecting admission of a state for unprovoked hostility toward another nation as in the case of the Bosnian conflict. The notion that the size of a constituent state remaining after the partition of a larger state should determine the former’s succession to a privileged status in an international organization such as the UN threatens the entire enterprise. The consequences are apparent in the current predicament. The process requires remedy. More importantly, some obvious choices confront the UN presently.

Copyright @Kost Elisevich, MD, PhD 2022. All rights reserved. Any illegal reproduction of this content will result in immediate legal action.