Ukraine Challenges Legitimacy of Russia’s UN Membership

Ekramul Haque Azim 8 March 2022

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Ukraine Challenges Legitimacy of Russia’s UN Membership

The overwhelming condemnation of the invasion of Ukraine—which triggered a veto from Russia and an abstention from China last week – has raised a challenging question about the legitimacy of UN memberships of both countries which are permanent members of the Security Council.

The Union of Soviet Socialist Republic (USSR) ceased to exist back in 1991, with the Russian Federation assuming the rights and obligations as a successor state.

And the Republic of China (Taiwan) was expelled from the United Nations– and ousted from its highly-prized permanent seat in the UN Security Council (UNSC)– about 51 years ago.

But according to the UN charter, “the USSR and the Republic of China” – not the “Russian Federation” or “the People’s Republic of China” (PRC)—are still two of the five permanent members of the most powerful body in the Organization.

If both countries assume they are rightful successors, why aren’t they going before the General Assembly to help amend the Charter? As a result of the anomaly, the un-amended UN charter remains outdated and a relic of a distant past.

According to Article 108 of the Charter, amendments must be adopted by two thirds of the 193 members of the General Assembly and ratified by two thirds of the members of the United Nations, including all five permanent members of the Security Council, namely the US, UK, France, China and Russia.

The Charter has been amended five times:

Articles 23

Article 27

Article 61

Article 109

Article 61

was amended again to further enlarge the Economic and Social Council from 27 to 54 members

But it was never amended to reflect the two successor states, namely the Russian Federation and the People’s Republic of China (PRC)

During the Emergency Special Session of the General Assembly last week, Ukraine’s Ambassador, Sergiy Kyslytsya, pointed out that while “the Russian Federation has done everything possible to legitimize its presence at the United Nations, its membership is not legitimate, as the General Assembly never voted on its admission to the Organization following the fall of the Soviet Union in December 1991”.

With the collapse of the USSR in late 1991,the Commonwealth of Independent States signed a declaration agreeing that “Member states of the Commonwealth support Russia in taking over the USSR membership in the UN, including permanent membership in the Security Council.”

And in October 1971, the General Assembly decided to recognize the representatives of the Government of the People’s Republic of China as the only legitimate representatives of China to the United Nations.

But one longstanding question remains: why has Russia and PRC not moved for an amendment of the charter?

Is it that both countries fear they will not be able to garner the two thirds majority needed in the General Assembly for any amendments to the charter?

In a December 1991 inter-office memo, the UN’s Office of Legal Affairs said: “For the present, the old Union of Soviet Socialist Republics remains a member of the United Nations with all the rights and obligations of memberships. Its representatives, whose credentials have been approved by the Credentials Committee, continue to occupy the seat of the USSR in all organs of the United Nations.”

“In considering the changes which may come about in the near future and their implications within the internal constitutional order of the United Nations, it should be borne in mind that the United Nations will, of necessity, be obliged to proceed from whatever arrangements are made internally in the Soviet Union in relation to the break—up of the USSR and the decisions which are taken by the republics regarding their individual status in international law and that of any collective entity which might emerges.”

The memo lays out several scenarios over succession states, including “a similar issue following the partition of India and Pakistan when certain Members objected to India’s automatic retention of its seat while Pakistan had to apply as a new state.”

But the question of an un-amended Charter remains unanswered.

In response to a question, UN Spokesperson Stephane Dujarric told reporters March 4, the UN’s Office of Legal Affairs (OLA) had “undertaken a review of its relevant files”.

“I was informed that the search is continuing through the paper-based files, and non-digitized files, and that some related documents have been found, including an interoffice memo dated 19 December 1991”.

He said it has been declassified, and “I can share it with you if you are interested.”

The interoffice memo, he pointed out, does not in any way alter the Secretariat position, which is that, in accordance with the UN Charter, “the question of UN membership is the responsibility of Member States”.

In his 165-page book on the Security Council titled “Of Foxes and Chickens– Oligarchy and Global Power in the Security Council”, James Paul, then Executive Director of the New York-based Global Police Forum, writes the dissolution of the Soviet Union in late 1991 provided another act in this strange drama (following the admission of PRC).

A number of successor states came into being of which the Russian Federation was the largest.

“It was certainly not the major power that the USSR had been, having a far reduced population and economy. The new state was not clearly the same as the old, but the permanent members did not want to open up the dreaded membership question.”

“With most diplomats celebrating a holiday (at the time) or out of town on vacation, no delegation raised immediate objections. Without even calling a meeting to examine the matter, the Council President took silence as consent.”

Meanwhile, any attempts to expel or suspend Russia from the General Assembly—primarily because of its invasion of Ukraine– will be difficult to justify judging by the track record of some of the member states.

Stephen Zunes, Professor of Politics and International Studies at the University of San Francisco, who has written extensively on the politics of the Security Council, told IPS this proposal seems like a stretch.

The United Nations technically might be able to remove Russia from the Security Council, but politically it would come across as vindictive and would likely weaken the United Nations’ authority, he said.

“There would also be the question of double-standards,” he pointed out.

Morocco was elected to a non-permanent seat in the Security Council in the 1990s despite its invasion, occupation, and illegal annexation of Western Sahara.

Indonesia was elected to the Council during the same decade following its conquest and occupation of East Timor.

And Israel’s admission into the United Nations, he argued, was conditional on the grounds “that Israel is a peace-loving State which accepts the obligations contained in the Charter, and is able and willing to carry out those obligations,” which it clearly has not done, as exemplified through its conquests of neighboring countries, its illegal colonization of occupied territories, and its illegal annexation of parts of them, he noted.

“For the United Nations to take such drastic action targeting Russia in response to its invasion of Ukraine, it would need to have a more consistent policy towards aggressor nations,” declared Zunes.

Since the international community has pretty recognized there is only one China and plenty of member states have changed their formal names over time, he pointed out, “I don’t think the representation of China is an issue. If it did come to a vote, I’m quite confident they would get a two-thirds majority.”

The Soviet/Russia case is more complicated, he noted. “Even here, though, since a case could be made that the Soviet Union was the successor state to the Russian Empire, a reduced Soviet Union would still be Russia. I don’t think Russia would have had any problems getting the two-thirds support either—until recently,” he declared.