Towards the Discussion around Russia’s Expulsion from the UN: Position of a Sceptic
16.09.2023Nowadays, a new popular topic about possibly excluding the RF from the UN or at least depriving it of the rights of a permanent member of the UN including the veto right is being widely discussed. To increase its importance, to visualize, but most of all to simplify the perception of the topic, a corresponding picture has even been created:
I didn’t like the article on a popular resource which I would like to tell a few words about. Additionally, the paper’s language is also English, which means its availability to a large amount of readers.
So, Win back the UN. Why Russia’s return to the 1991 borders is not only a territorial issue. This is what the article author writes about the birth and development of the UN: «As part of the first step towards this compromise, on January 1, 1942, the United States, Great Britain, the USSR, as well as China, represented by the Republic of China, which at that time did not control most of its territory, signed the Declaration of the United Nations».
First of all, by mistake, only four signatories of the Declaration of the United Nations of February 1, 1942 are mentioned.
It is known that on January 1, 1942, 26 countries fighting against the Axis powers including the US, the UK, China, and USSR signed a common program of goals and principles fixed in the Atlantic Charter. The document gained fame as the Declaration of the United Nations. The term «United Nations» was used in the document for the first time. Later, till 1945, 21 more countries joined the Declaration. By the way, France as a future permanent member of the Security Council of the UN joined the Declaration only in 1944.
The next quote from the mentioned article is even more erroneous, and actually scary (as for supporters of the widely interpreted human rights — Ed.), and demands the full quotation: «This series of mistakes created a vicious approach to the structure of the UN: the principle of equality of nations, represented by states; regardless of the level of development of these states, which resulted in the equality of their votes in the General Assembly». The author has called the basic principle of the UN, equality of nations, «a vicious approach». I will not even further comment on this point.
At the same time, the author has correctly pointed out the fact that the veto right for the permanent members of the UN SC is enshrined in the organization’s Charter. Accordingly, any change in the rights of the permanent members of the SC requires applying changes to the Charter. Whereas here, according to chapter XVIII of the Charter, any change to it may be made only after ratification by two-thirds of the UN members including five permanent members of the SC (the UK, China, the RF, the USA, and France). Article 108 of the UN Charter contains a complicated procedure for the formal change of the Charter: such changes should be supported by two-thirds of the General Assembly members’ votes and ratified by two-thirds of the UN members including all permanent members of the SC according to the constitutional procedure. The UN Charter has changed this way only three times (in 1963, 1965, and 1971), and in all cases, it was related to mere enlargement of the UN body’s composition.
The author admits that «such a profound reform of the UN Charter is an extremely difficult task. And, even if Russia’s exclusion kicks off negotiations to completely abolish the veto, they could drag on for a very long time. And, therefore, the question will also arise of what to do with the right of veto of the USSR, taken away from Russia, which illegally appropriated it».
The author himself understands the impossibility of his ideas and gives us a very unsuccessful example of the change from Taiwan to China in 1971. «Finally, although the UN Charter does not spell out the procedure for expelling a permanent member of the UN Security Council, there is experience in the history of the UN to replace it: by the UN General Assembly Resolution of 1971, Taiwan was deprived of the right to participate in the UN on behalf of all of China, since in fact it did not control most of its territory. Russia also does not control a significant part of the territory of the USSR, and cannot be considered a representative of all the peoples of the USSR». As for shifting from Taiwan to China and from the USSR to Russia in the SC, strictly speaking, these are different cases. In the Taiwan case, the question was who would represent China in the UN; in other words, the UN was unsure whether the empowered government of China was located in Taipei or Beijing. More on this is nicely elaborated here.
Returning to the article, quote: «Taking advantage of the weakness of the new states, the Russian Federation, which inherited the allied power structures — most of the army, including nuclear weapons and special services represented by the KGB, assumed the debts of the USSR along with the foreign property of the deceased Union of the Russian Federation». I will remind the author that Ukraine voluntarily refused its nuclear weapons when it signed the Budapest Memorandum on Security Assurances. The Budapest Memorandum certainly is a separate topic beyond the framework of this paper.
Further, the author of the article with such a bright title states something else: «We are not talking about the exclusion of the Russian Federation from the Security Council, and the exclusion from the UN forever. We are only talking about identifying and correcting a procedural error that arose due to the automatic extension of the membership in the UN of the already non-existent USSR to Russia». The legal principle is widely known that violation of procedural norms entails negative legal consequences only if thus is directly enshrined in the relevant normative act. Now, 30 years afterwards, talking about the violation of a procedural norm which is not enshrined in the UN Charter (meaning the order of replacement of a permanent member of the UN SC) seems rather uneasy.
Actually, history remembers this moment a bit differently. In the case of partition of the USSR, the US strongly hoped to avoid a horrifying carousel scenario where the USSR’s place would in turn belong to each of its former republics as its successors, and so all efforts were made to change from the USSR to Russia. Judging the eyewitnesses’ account, that was made through changing the plate in front of that time’s RF representative in the UN SC Yulii Vorontsov from «USSR» to «Russian Federation» by the order of the USA representative who was then the SC chairman. Answering a couple of confused looks, the chairman suggested considering the agenda instead; since then, no one ever raised this question again. Now, it is supposed (by the interested parties — Ed.) that the issue was solved exactly through the established procedure of the UN members.
Besides, the author also suggests depriving the RF of its veto right within the UN via its «freeze» based on the fact that «Thus, the aggression against Ukraine in itself provides grounds for a temporary freeze of the powers of the Russian delegation, up to and including its termination. And, then, gradually, they can already deal with the question of the legitimacy of the current Russian membership in the UN».
It seems inappropriate to combine these two problems in one article. On one hand, we have the analysis of the RF’s succession from the USSR and violations of the procedure as a foundation for excluding the RF from the list of the UN’s members with the right to submit a new application. On the other hand, there is aggression against Ukraine as an independent reason to freeze all power of the RF’s delegation in the UN. Although the author does not give us any references to the UN Charter, we can guess that as a reason for such «freeze,» the author could mean enshrined in Article 2 (4) of the UN Charter prohibition of applying force or threatening it excluding cases of applying force (a) according to the decision of the UN SC if there is a threat to peace and security (Chapter VII of the Charter) or within individual or collective self-defence (Article 51 of the Charter: «Nothing in the present Charter shall impair the inherent right of individual or collective self-defence»). In other words, this prohibition is not absolute but with exclusions which also need appropriate interpreting.
At the same time, particular discussions in the doctrine of international law are caused as well by the general character of the prohibition to apply force and using exclusions in Article 51 of the Charter by countries. Unfortunately, modern practice shows that using armed forces never was left in the past. The frequency of applying armed forces by countries after 1945, often without any legal reasons appeared to be so big that well-known American international lawyer T. Frank already in 1970 announced the death of Article 2(4) of the UN Statute in his article with a brave title «Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States». After the USA’s invasion of Iraq in 2003, which was rather unclearly justified from the point of international law, the same T. Frank in his other article «What Happens Now? The United Nations After Iraq» stated that «Article 2(4) has died again, and, this time, perhaps for good»). We can find a well-written review of the current discussions in D. Whippman’s article «The Nine Lives of Article 2(4)». We also cannot ignore the widely quoted point of view by M. Glennon written in his article «How International Rules Die», according to which the frequency of violating Article 2(4) of the Charter is so prominent that nowadays it has lost the status of the legal norm (he shares more than 200 cases of applying the armed forces by countries since 1945).
Unfortunately, against the background of dynamics of political processes around Ukraine such articles by our authors increase alarmist moods of our partners towards Ukraine. Sometimes it is better to refrain from such publications rather than suggest so obviously loser initiatives and traditionally turn failure into victory and vice versa. Both internal and external politics should become more professional, especially considering the highest price being paid now, which is lives of our defenders.
Basile Alpino, lawyer
