Olga Kuchmiienko, head of International Law Committee of Ukrainian Bar Association, PhD in law, LL.M. in Investment Treaty Arbitration (Uppsala, Sweden),
Anna Bukvych, member of International Law Committee of Ukrainian Bar Association, PhD in Law
Viktor Pasichnyk, member of International Law Committee of Ukrainian Bar Association
Why Russia should be excluded?
On 24 February, one member state of the United Nations, the Russian Federation, invaded Ukraine and thereby violated almost all fundamental principles and rules of international law. The member of the United Nations (UN) with the veto right in the Security Council of the UN appeared to be the aggressor state who acted against the UN Charter and committed its unprecedented breach since its signing in 1945. In other words, the Russian Federation started a full-scale war in Ukraine, a war with no excuse; no reason rather the war of choice. The statements of the Russian Federation officials and their justification of the use of force make us understand that they started this war against the Ukrainian people and our nation. As in 2014, they did it again at night, with no flags on their tanks, no chevrons on their uniform. They did it like a criminal breaking into the house to still your life. And let us remind you that this country is still a member of the Security Council with the veto right.
Since the beginning of the war, our brave Ukrainian people have been fighting and defending our homeland from the aggressor country. For more than two months, the Russian Federation has been shelling and bombarding residential areas, hospitals, and kindergartens, destroying cities, and killing civilians. Many Ukrainian cities, towns, and villages are nearly or fully destroyed by Russian forces. Russian soldiers are shooting civilians who are trying to evacuate, including children. The Russian Federation forcefully deported more than 6,000 Mariupol residents to filtration camps in Russia and deported more than 2,000 Ukrainian children.
Moreover, they are using cluster and phosphorous bombs against civilians. Let us remind you about Azovstal and Mariupol. Hundreds of Ukrainians are currently under fire on the territory of the Azovstal plant in Mariupol, without water, food, and medicine. The plant is bombarded daily, including by the phosphorous bombs. And yes, you are not mistaken; this is a member state of the UN responsible for this. No doubt that with all these crimes made by the Russian Federation, the world has lost the feeling of security. Unfortunately, the mechanism of international law failed to prevent aggression and stop the criminal regime, which wanted to obliterate everything related to Ukrainian identity – our people, our culture, our language, and our values.
We fight the enemy with all possible instruments, including the legal and diplomatic ones. Many countries backed Ukraine’s endeavors by sanctioning Russia, Belarus, and companies assisting them in strengthening their military capabilities. Most UN members condemned Russian aggression and supported Ukraine by all possible means, including financial and military assistance. Meanwhile, as we can see, this is not still enough to make the country of the aggressor stop the war in Ukraine. If the international community failed to stop Russia today, it would turn into thousands of innocent lives tomorrow. Let us remind you that at least 10,000 Ukrainian died in Mariupol starting on 24 February.
Thus, considering the war crimes committed by the Russian Federation in Ukraine, we believe that it shall be excluded from all international organizations and unions that stand for the European values, peace, and security. We need to isolate the Russian Federation and make it an outcast state with no influence over international decision-making. This country not only does not respect the keystone principles of the international law and security system but also blatantly disregard the universally recognized moral values, committing more and more terrifying atrocities day after day.
Grounds for Russia’s exclusion?
The first step was made at the eleventh emergency special session when UN General Assembly adopted a resolution suspending Russia from the United Nations Human Rights Council on 7 April 2022, with the required two-thirds majority of voting members. This decision was grounded on reports of gross and systematic violations and abuses of human rights by Russia in Ukraine during the ongoing war between these two states.
However, despite its importance as a UN body, the Human Rights Council is rather an auxiliary body and does not allow its members to determine the global geopolitical future. One may assume that one mechanism which may ensure the isolation of the Russian Federation is the exclusion of this country from the UN Security Council. The UN Security Council is one of the six principal organs of the United Nations and the only one with authority to issue binding resolutions on UN member states. However, under the UN Charter, the Security Council consists of five permanent members – The United States, the United Kingdom, France, China, and the Soviet Union (whose Security Council membership Russia inherited), and there is no specific procedure for their removal.
There is one more mechanism – expelling the member state from the UN. A Member of the UN who violates the principles of the international law set forth by the UN Charter may be expelled from the UN by the General Assembly upon the recommendation of the Security Council. However, every permanent member of the Security Council has a veto right regarding the Security Council decisions. As a result, all decisions are made by consensus and could not be implemented without the approval of all members. As a result, Russia could (and would) block any decision aimed at countering its aggression against Ukraine, as well as other states Russia has already invaded or intends to.
Meanwhile, whether the Russian Federation is a member of the UN Security Council. According to Ambassador Extraordinary and Plenipotentiary, Permanent Representative of Ukraine to the United Nations, “Russia has never been legally granted a seat on the Security Council. The fact that it has occupied the place of the USSR for more than 30 years does not change the historical and legal fact that neither the Security Council nor the UN General Assembly has ever voted to admit Russia. After the Soviet Union ceased in 1991, Russia identified itself as its successor. Therefore, it should be a matter of removing the Russian Federation from membership following the UN Charter, not an exclusion.
Upon the collapse of the Soviet Union, the Russian Federation became the successor of the Soviet Union for all international rights and obligations. However, under the official documents, only the Russian Soviet Federative Socialist Republic became the successor of the UN Security Council membership, and there is no evidence that the Russian Federation obtained the membership. The Russian Federation did not pass any procedures to become a member. Moreover, the UN Charter was amended several times, and the name of the Russian Federation was not still included.
Mr. Kyslytsya’s arguments are based on the fact that, despite having notified the UN Secretary-General that it will succeed the Soviet Union’s rights and obligations with the support of the former Soviet countries and having issued a note in 1992 providing for the continuity of the Russian Federation concerning the international obligations of the Soviet Union, Russia was not included in the UN Charter as a new member state. According to Mr. Kyslytsya, the constituent republics of the Soviet Union declared in 1991 that the Soviet Union ceased to exist, and with it, any of those entities, including Russia, should have lost their legal right to sit on the Security Council. The General Assembly was never asked to approve Russia’s admission to the Security Council. The UN Charter was never amended after the dissolution of the USSR, and Russia has never signed or ratified it. It still refers to the Soviet Union, rather than Russia, as a permanent member of the UN Security Council.
There was no resolution on Russia’s admission to the UN on the recommendation of the UN Security Council, even though this is how the UN normally accepts states. For example, when Czechoslovakia split into the Czech Republic and Slovakia, both countries underwent a full-fledged UN accession procedure.
It is worth noting that the former Soviet states supported Russia’s decision to declare itself the successor of the Soviet Union in a decision of the Commonwealth of Independent [post-soviet] States’ Council of Heads of State. Except for Georgia, all states supported Russia’s decision to maintain the Soviet Union’s membership in the United Nations, including membership in the UN Security Council and other international organizations. This decision, however, is a political declaration rather than an international treaty or other legally binding documents. Moreover, it was not signed by Georgia, while the Ukrainian consent could be theoretically withdrawn.
According to Mr. Kyslytsya, Ukrainian diplomats have already requested documents on Russia’s admission to the UN and its rights as a successor of the Soviet Union. Still, the UN provided only a limited set of documents to them, stating that some documents were “confidential” and could not be provided to the Ukrainian delegation to the UN. He said that the probability of Russia’s exclusion from the Security Council is low, but it is still possible.
Ukraine has already raised the issue of Russia’s membership in the UN Security Council. Mr. Dmytro Kuleba, the Minister of Foreign Affairs, stated: “We raise the issue of a thorough and unbiased legal analysis of the grounds for the Russian Federation’s continued membership in the UN Security Council. We are confident that when this legal analysis is completed, Russia will be found to be illegitimate in the UN Security Council. At the moment, everything is dependent on the principles of UN Secretariat lawyers and their willingness to investigate this issue thoroughly.
Other options to effectively deprive Russia of its powers
The other options to restrict the influence of the Russian Federation are (1) to replace the Russian Federation as a permanent member of the Security Council with another state or (2) to terminate the participation of the Russian Federation’s delegation to the UN.
Even if Russia is not expelled from the UN, it may be possible to deprive it of permanent membership in the Security Council by replacing Russia with another state. There is precedent for such a replacement. At the initiative of the Soviet Union, the UN General Assembly voted in 1971 to transfer the seat of the Republic of China (Taiwan), including the status of a permanent member and the right of veto, to another state – the People’s Republic of China (Communist China), as most states had established diplomatic relations with communist China and recognized it as the sole Chinese state at the time. However, this method appears unrealistic given that there is no “alternative” Russia, which has its territory, and government and is recognized by at least some states.
Another way to exclude the Russian Federation from the UN is to change the UN Charter. However, by Article 108 of the UN Charter, the UN Charter may be amended if it is ratified by two-thirds of the Members of the UN, including all permanent members of the Security Council. For sure, The Russian Federation will block this decision as well.
To our mind, not the best but the most realistic option to date is to isolate the aggressor state to terminate the Russian Federation’s delegation to the UN. According to the UN Charter, this decision will not require the involvement of the Security Council. In case of the delegation’s termination, the Russian Federation will remain a member of the UN but lose the right to vote. Meanwhile, based on previous experience with the Republic of South Africa, there was no consensus regarding the legal force of the relevant decision.
Nevertheless, there is no explicit answer how the Russian Federation, as an aggressor state, shall be isolated from any influence on the decision of the UN; we do believe that the international community shall make all possible efforts to change the existing security system, ensuring the veto right of the Russia Federation. Otherwise, all the members of the UN will lose the feeling of security. The Russian Federation easily throws all committed crimes in Ukraine to the faces of all UN member states, telling them that “we can do everything we want since we are a superpower and you have nothing to do with it”. We need to make the international security system serve its direct purpose, ensuring the safe existence of all peaceful states, and there is one way to do it – to stop the Russian Federation by isolating it and making it a failed state without any vote right regarding decisions on the peace and security, so that the international community could decide on countering the Russian aggression and compensating Ukraine the damage inflicted by Russia’s hostile actions.