How to expel the Russian Federation from the UN
On September 15, 2022, the spokeswoman for the Ministry of Foreign Affairs of the Russian Federation Maria Zakharova said (see video) that the person who develops the mechanism for the removing of the Russian Federation from the UN Security Council deserves a Nobel Prize, because legally, such a scenario is impossible.
In this article we will describe exactly this kind of legal mechanism, previously considered impossible, and show how it is practically possible to remove the Russian Federation from the UN Security Council.
This mechanism is based on a fairly simple and easily proven assertion that the Russian Federation cannot legally be considered a member of the UN, and after the disappearance of the Soviet Union, only four permanent members remain on the Security Council.
Permanent members of the Security Council, according to the UN Charter
in Art. 23 of the UN Charter, the following are listed as permanent members of the Security Council:
"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"
Termination of the Soviet Union's existence as subject of international law, and, consequently, as UN member.
On December 8, 1991, the Republic of Belarus, the Russian Soviet Federative Socialist Republic and Ukraine signed the Agreement on the Establishment of the Commonwealth of Independent States (also known as "the Belovezh Accords"), the main provision of which was:
the Union of Soviet Socialist Republics as a subject of international law and a geopolitical reality no longer exists.
On December 10 of the same year, it was ratified by Ukraine and the Republic of Belarus, and on December 12 by the RSFSR.
The cited provision of the said treaty does not allow any other interpretation: the USSR as a subject of international law, and therefore as a member state of the UN, has ceased to exist.
According to Art. 15 (4) of Constitution of the Russian Federation:
"international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied"
This means that the Belovezh Accords, after their ratification, also became part of the Russian law.
The termination of the existence of the USSR as a state is also confirmed by a number of other documents.
In the Alma-Ata declaration signed by heads of states of the Commonwealth of Independent States, including the Russian Federation, on December 21, 1991, was repeated the statement from the Belovezh Accords:
"With the formation of the Commonwealth of Independent States, the USSR ceases to exist"
The Soviet of the Republics of the Supreme Soviet of the USSR in its last session on December 26, 1991, adopted Declaration no. 142-N:
"The Soviet of the Republics of the Supreme Soviet of the USSR, following the will of the supreme state organizations of the Republic of Azerbaijan, of the Republic of Armenia, of the Republic of Belarus, of the Republic of Kazakhstan, of the Republic of Kyrgyzstan, of the Republic of Moldova, of the Russian Federation, of the Republic of Tajikistan, of Turkmenistan, of the Republic of Uzbekistan and of Ukraine regarding the creation of the Commonwealth of the Independent States, stipulates that with the creation of Commonwealth of the Independent States, the Union of SSR ceases to exist as a state and as a subject of international law"
The proof that the Russian Federation (RSFSR) and the USSR are different international legal personalities is also the fact that even before the disappearance of the USSR, treaties were made between it and the RSFSR.
On December 4, 1991, was also signed an agreement "On succession in relation to external state debt and assets of the USSR" which was signed by states - former members of the USSR, including RSFSR, and by the USSR itself - This clearly shows that RSFSR and USSR are not the same subjects of international law, but two different subject of international law, (having different international legal personalities), and which even had entered into agreements with each other.
Why RF is not a UN member
UN rules concerning the possibility to succeed a seat of a UN member
Established UN's law is based on the principle that the successor state (which the Russian Federation is in relation to the USSR, as well as Ukraine and other former USSR members) has no right to inherit the place of the predecessor state in the UN.
This rule was formulated in the opinion (A/C.1/212) of the Sixth (Legal) Committee of the UN General Assembly back in 1947:
"1. That, as a general rule, it is in conformity with legal principles to presume that a State which is a member of the organization of the United Nations does not cease to be a Member simply because its constitution or its frontier have been subjected to changes, and that the extinction of the State as a legal personality recognized in the international order must be shown before its rights and obligations can be considered thereby to have ceased to exist" "2. That when a new State is created, whatever may be the territory and the population which is comprised and whether or not they formed a part of a State Member of the United Nations, it cannot under the system of the Charter claim the status of a Member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter"
In other words, if there have been changes in the state (government, constitution, territory, name), but this state continues to have the same international legal personality, or, in other words, to be the same subject of international law ("continuing state" or "continuator"), then it continues to be a member of the UN.
But if there is a new state (a new subject of international law), even if it was previously part of a UN member state, then this new state must submit a new application for membership.
This rule has never been challenged in the UN, and the UN has always been guided by it, and there are a number of relevant precedents, see Scharf, Michael P. Musical Chairs: The Dissolution of States and Membership in the United Nations (Cornell International Law Journal, Volume 28, Issue 1 Winter 1995)
How the Russian Federation took the place of the USSR in the UN.
As mentioned above, the Russian Federation, as the successor of the USSR, could in no way lawfully succeed its place in the UN.
After the disappearance of the USSR, its representatives in the UN realized that the state they represented no longer exists. Also, the rulers of the Russian Federation realized that, unlike Ukraine and the Republic of Belarus, they do not have a UN membership.
Then the former representatives of the USSR in the UN and the leadership of the Russian Federation entered into a conspiracy, and, taking advantage of the lack of English texts of documents related to the collapse of the USSR in the UN, committed a fraud, declaring that the USSR continues to exist as a subject of international law under the new name "Russian Federation."
As Yuli Vorontsov, a former representative of the Russian Federation, and before that the USSR, at the UN later told in his memoirs:
"Our cooperation with leading Western countries and, first of all, with the United States, has turned out well. American lawyers suggested to us a great legal solution, according to which disputes about what belongs to the Russian Federation and what does not become pointless. They suggested that in our statement about the change of the state's name, as we said at the time, it should be indicated that the Russian Federation is the continuator to the Soviet Union. This word "continuator" helped out a lot. Being the continuator meant that Russia retained its seat on the Security Council.
In fact, the entire process outwardly appeared as a simple change of the nameplate at the delegations' tables in the General Assembly and the Security Council. Instead of the nameplate "Soviet Union," "Russian Federation" appeared"
(Source: From the archive of UN Radio: Ambassador Vorontsov on how Russia became the "continuator to the USSR", available in Russian only)
On 24 February 1991 permanent representative of the USSR Yuli Vorontsov informed the General Secretary that the state, which he represented, has changed its name to "Russian Federation" He also has attached the letter from President Yeltsin, pretending that Yeltsin is the plenipotentiary head of the Soviet Union that changed its name.
The implementation of this fraud was facilitated by a number of factors:
- As already mentioned, there were no texts testifying to the cessation of the existence of the USSR at that time in the UN, and they were not at all in public access translated into English
- It was Vorontsov who chaired the Security Council at that moment
- December 24 is just Christmas Eve, and the first meeting of the Security Council at which Vorontsov sat with a sign "Russian Federation" was on December 31 — on New Year's Eve.
- This fraud, at least according to Vorontsov's memoirs, was carried out with the support of the United States, and the idea itself was invented by American lawyers.
Who were these "American lawyers" who came up with the scheme for Vorontsov involving the alleged "name change" from "USSR" to "Russian Federation," and did they realize they were committing fraud?
We now have documents that shed light on this question. What makes this particularly intriguing is not just the content of these documents, but the fact that a key document was classified within the UN until 2022. The very fact that this document was kept secret from 1991 to 2022 suggests that those involved were aware of the unlawful nature of their actions.
This document is the internal memorandum dated December 19, 1991, sent by the then UN Under-Secretary-General for Legal Affairs Carl-August Fleischhauer to the then UN Secretary-General Pérez de Cuéllar. The document was marked as "STRICTLY CONFIDENTIAL"
The memorandum proposed a scenario in which the Russian Federation could declare itself the continuator of the former USSR. It noted, however, that this scenario might encounter difficulties if other former Soviet republics raised objections. The memorandum also pointed out that if the Russian Federation were admitted to the UN as a new state, it would raise the issue of who would cast the USSR's vote in the Security Council during the transition.
But Carl-August Fleischhauer was not an "American lawyer"; he was German, a citizen of the Federal Republic of Germany. Since Vorontsov mentioned "American lawyers," it can be assumed that the author of the scheme outlined in the document signed by Fleischhauer might have been the Principal Legal Officer in the UN Office of the Legal Counsel, the American Larry D. Johnson (Larry D. Johnson). Incidentally, Johnson is now one of the most consistent and professional defenders of the position that the Russian Federation legitimately succeeded the USSR in the Security Council and that nothing can be done about it now. We will analyze his arguments later in this article.
Ex injuria jus non oritur (right do not arise from a violation of the law)
So, although the statement made by the permanent representative of the Soviet Union to the UN on December 24, 1991, that the USSR changed its name to "Russian Federation", due to his authority to represent the USSR and the presumption that he is acting in good faith, did not raise doubts and objections at that time, it was a lie, a fraud.
And though it was a successful fraud at the time, according to one of the basic principles of law "ex injuria jus non oritur"("right does not arise from injustice")(see also Anne Lagerwall on The Principle ex injuria jus non oritur in International Law) it can not create any rights for the wrongdoer, neither the rights of a UN member, nor the rights of a permanent member of the Security Council.
The procedure for removing RF from the UN
Recognition of the cessation of the existence of a UN member state.
In 1992, the Federal Republic of Yugoslavia (later known as "Serbia and Montenegro") insisted on the continuing membership of the Socialist Federal Republic of Yugoslavia in the UN.
On September 19, 1992, the UN Security Council adopted Resolution 777 (1992) which recognized that 1) the Socialist Federal Republic of Yugoslavia has ceased to exist, 2) therefore, the Federal Republic of Yugoslavia cannot continue automatically its membership in the UN.
On 22 September 1992, the General Assembly adopted Resolution 47/1 with reference to the above-mentioned resolution of the Security Council, which also decided that the Federal Republic of Yugoslavia cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the UN, must apply for membership as a new state, and before that must not take part in the work of the General Assembly.
Thus, the UN may decide that a certain UN member state has ceased to exist and does not have a continuing state.
Expelling from a seat of the Security Council permanent member
There is another important precedent when the General Assembly decided on who exactly had the right to represent a permanent member of the Security Council, without a prior decision of the Security Council on this issue: General Assembly resolution 2758 (XXVI) of 25 October 1971 (Restoration of the lawful rights of the People’s Republic of China in the United Nations):
The important thing here is that the General Assembly actually recognized that the place of permanent member of the Security Council was "unlawfully occupied" for more than 20 years (the government of Chiang Kai-shek completely lost control of mainland China in 1950, and the decision was made in 1971)
That is, the case of the Russian Federation is not the first case in the history of the UN when the seat of a permanent member was unlawfully occupied for decades.
The difference, however, is that the Chiang Kai-shek government initially took this place in a legitimate way, and the Russian Federation through a fraud.
Resolution on expelling the RF from the UN
We believe that, based on the above precedents, the resolution of the General Assembly on expelling the Russian Federation from the UN could look like this:
The General Assembly,
Recalling the UN Charter rules and principles of the international law concerning the succession and continuation of states, as well as concerning representation of states in the UN, which, in particular, were expressed before in General Assembly Resolution 2758 (XXVI) of 25.10.1971, Security Council Resolution 777 (1992) of 19.09.1992 and General Assembly Resolution 47/1 of 22.09.1992
Considering the Union of Soviet Socialist Republics as a subject of international law no longer exists, as it was clearly and unambiguously stated in Belovezh Accords 1991, ratified by states - successors of the USSR, including Russian Federation, and also declared in the Alma-Ata Protocols 1991, and confirmed by the Declaration no. 142-N of the Soviet of the Republics of the Supreme Soviet of the USSR,
Recognizing that there is no and can be no continuing state to the USSR,
Recognizing that since the Union of Soviet Socialist Republics has ceased to exist, only four permanent members remain in the UN Security Council,
Decides to expel forthwith the representatives of the Russian Federation from the place of the Union of Soviet Socialist Republics, which they unlawfully occupy at the United Nations and in all the organizations related to it, including the United Nations Security Council.
Decides that this Resolution shall not have a retroactive effect, and shall not in itself entail the annulment or revision of Security Council Resolutions adopted to date.
Proclaims the desire to see Russia as a future member of the UN, provided that in the future it will fulfill the conditions for membership provided for by the UN Charter, including the requirement to be a peace-loving state.
...th plenary meeting,
... December 2024
We think that such a resolution could be adopted on Eleventh emergency special session of the United Nations General Assembly
Based on the above precedent with China, the adoption of such a resolution does not require a prior decision of the Security Council.
Although, as we described in "How to overcome the "veto power" in the UN Security Council" there is a legal mechanism overcome the "veto power" and exclude the Russian Federation from voting on this issue.
Is a qualified majority or a simple majority required
A separate issue is whether a qualified majority or a simple majority in the General Assembly is enough to pass such a resolution. Based on previous practice, this issue is to be decided before the adoption of a resolution by a simple majority of votes.
So in the case of China, the proposal that the issue should be decided by a qualified majority was rejected by the Assembly (see General Assembly, 26th session : 1976th plenary meeting, Monday, 25 October 1971, Official records, § 388) (however, at the same time, they forgot about the resolution of the General Assembly on the same issue adopted ten years before)
Thus, it is most likely that the proposed text of a resolution recognizing that the Soviet Union ceased to exist and deciding to remove the Russian government from its representation in the UN, can be adopted by a simple majority of votes, unless the General Assembly previously decides (by a simple majority) otherwise.
Analysis of the arguments about the impossibility of removing the Russian Federation from the UN
Decision of the Council of Heads of States of the Commonwealth Independent States of 21 December 1991.
The Decision of the Council of Heads of States of the Commonwealth Independent States was signed on 21 December 1991 in Alma-Ata along with other documents (including Alma-Ata declaration which proclaimed that "with the formation of the Commonwealth of Independent States, the USSR ceases to exist")
See: European Commission for Democracy through Law: Agreements establishing the Commonwealth of Independent States p. 151.
§ 1 of this decision stated that:
"The Commonwealth states support Russia in continuing the membership of the USSR in the UN, including permanent membership in the Security Council, and other international organizations"
Larry D. Johnson (as stated above former Principal Legal Officer in UN) in his publication "United Nations Response Options to Russia’s Aggression: Opportunities and Rabbit Holes" refers to this Decision as a justification for the assertion that the Russian Federation is a continuing state to the USSR.
But, in fact, this document does not give grounds for such a conclusion.
This decision can only be considered as political support for the future membership of the Russian Federation at the UN, possibly by obtaining a permanent member's seat in the Security Council in the future.
But it does not in any way follow from this Decision that the Soviet Union did not cease to exist (as stated on the same day by the same persons In the Alma-Ata declaration)
Quite the contrary, this "support" itself proves that the USSR ceased to exist, because if the Russian Federation were really the same USSR, then such support is completely meaningless and unnecessary
And, of course, it cannot be asserted that one of the CIS bodies had the authority to transfer a seat in the UN Security Council from one state to another, or in any way change the provisions of the UN Charter.
Estoppel, laches or acquiescence.
This is a quite sophisticated argument and deserves careful consideration.
Larry D. Johnson in the previously mentioned publication "United Nations Response Options to Russia’s Aggression: Opportunities and Rabbit Holes" writes the following:
"It runs straight into what lawyers call a “laches” or “estoppel” problem or what lay people might call a “Speak now or forever hold your peace” problem"
“Speak now or forever hold your peace” is not exactly estoppel, it's rather acquiescence.
Estoppel is a judicial device whereby a person may be estopped (i.e. 'stopped') from resiling from the existence of a particular state of affairs, due to their previous behavior or position.
But what is a "state of affairs" in this case? The question is not if the RF itself is a UN member. The Russian Federation has never declared that it is a member of the UN separate from the USSR, it has always claimed that it is the Soviet Union that changed its name and borders.
So the question is whether the Soviet Union has ceased to exist.
And, if we understand the essence of the problem, then it becomes clear that it is the Russian Federation who lost a right to assert that the Soviet Union continues to exist because of a number of international treaties signed by it (which we mentioned above)
That is, in this case, estoppel does not justify the presence of the Russian Federation in the UN, but quite the contrary.
But maybe even if the USSR ceased to exist, the Russian Federation should be considered a member of the UN?
The idea "if nobody objected for 30 years, RF should be considered a UN member" should be described not as 'estoppel,' but rather as acquiescence (consent conferred from a juridically relevant silence)
But can acquiescence be applied here? We will refer to a very clear explanation of the scope of acquiescence in The Scope of Acquiescence in International Law, by I. C. MacGibbon:
"Acquiescence operates in the sphere to which the maxim ex injuria jus non oritur is least applicable, that is, where the vindication of a claim or course of action depends on the consent of the States affected"
But in this case:
- As mentioned above, it is precisely that the principle ex injuria jus non oritur applies, since a fraud was committed.
- Who exactly are the permanent members of the UN Security Council, in no way depends on the consent of the States affected, since their list is prescribed in Art. 23 of the UN Charter
Or may be it can be said that principle of extinctive prescription, sometimes known as laches, can be applied here and may prevent challenging the occupation of a seat in the UN in general or in the Security Council in particular?
No there is no principle of extinctive prescription or laches, which would prevent the issues from being considered in the UN. And there are no set deadlines after which an issue or dispute cannot be considered by UN bodies.
A clear confirmation of this is the example of the adoption of the above-mentioned UN General Assembly Resolution, which stated that the Chiang Kai-shek government had unlawfully occupied a seat on the Security Council for more than 20 years.
There is also no usucaption (a method of acquiring property by occupying it uninterrupted for a certain period of time) regarding the seat of in the UN. And this was clearly demonstrated by the resolution of the General Assembly on expelling the Chiang Kai-shek government from the UN. And even if it were, the principle "ex injuria jus non oritur" would prevent it from being applied here.
Conclusions.
It should be considered that the Soviet Union ceased to exist as a subject of international law, and, as a consequence, as a member of the UN, as a result of which at present only 4 permanent members remain in the Security Council.
The Russian Federation unlawfully occupies a place in the UN in general, and in the UN Security Council in particular, and must be removed from there. The legal procedure for its removal is possible as described in this text.
See also:
Viktor Ageyev Two scenarios of how to expel Russia from the UN // 2022-10-18,"European Pravda" (in Ukrainian)
Thanks to ex-ambassador of Ukraine to the UN, US, RF, OSCE Volodymyr Yelchenko, and to lawyer Max Baryshnikov for the help in working on the ideas presented in this text.