russia’s veto power at the UN Security Council is illegitimate? Legal analysis

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In this feature, InformNapalm volunteer intelligence community presents detailed argumentation as to why the exercising (and abuse) of the veto power by the russian Federation at the UN Security Council is illegal. The legal analysis was prepared by international law expert Bohdan Ustymenko.


It is well known that the russian Federation actually inherited the permanent membership of the Soviet Union on the United Nations Security Council, an international organ on whose decisions depend not only the national security of Ukraine and the Black Sea region, but also the security of the entire world. It is this key organ that the Members of the United Nations have entrusted with the primary responsibility of maintaining international peace and security.

At the same time, despite the high mission of the UN Security Council, the representatives of Ukraine were forced to call the response of the UN Security Council to conflicts, escalations and violations of international law “slow and inconsistent”, primarily due to the abuse of the veto power by certain permanent members, in particular by the russian Federation.

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Volodymyr Yelchenko / Photo by Ukrinform

The former ambassador of Ukraine to the UN Volodymyr Yelchenko cited the situation with russia’s disregard for international law, its aggression against Ukraine, as well as the abuse of the veto power at the UN Security Council. Mr. Yelchenko recalled that moscow had been pursuing “revanchist policies” and had been using military force against other states since the 1990s, including against Moldova, Georgia and Ukraine [1].

Does russia have legal grounds to be a permanent member of the UN Security Council instead of the Soviet Union?

Let us figure it out. Let us start with the history of the issue.

In 1945, the Belarusian Soviet Socialist Republic, the Ukrainian Soviet Socialist Republic and the USSR, among other countries, became the founding member states of the UN. It should be added that the russian Soviet Federative Socialist Republic (RSFSR) never had the status of a founding member country of the UN.

At the same time, the current version of Article 23 of the UN Charter [2]

establishes that it is the Union of Soviet Socialist Republics, and not the RSFSR or the russian Federation, an individual republic, that is one of the five permanent members of the UN Security Council.

Moreover, the UN Charter does not provide for the possibility of substitution or succession of the permanent membership on the UN Security Council of one country by another.

Also the Constitution of the Union of Soviet Socialist Republics adopted on October 7, 1977 [3], among other things, provides for the following:

  • “The Union of Soviet Socialist Republics is an integral, federal, multinational state formed on the principle of socialist federalism as a result of the free self-determination of nations and the voluntary association of equal Soviet Socialist Republics.
  • The territory of the Union of Soviet Socialist Republics is a single entity and comprises the territories of the Union Republics. The sovereignty of the USSR extends to its entire territory” (Article 75);
  • “The jurisdiction of the Union of Soviet Socialist Republics, as represented by its highest bodies of state authority and administration, shall cover: representation of the USSR in international relations; the USSR’s relations with other states and with international organizations; establishment of the general procedure for, and co-ordination of, the relations of Union Republics with other states and with international organizations”, whereas a “Union Republic [incl. RSFSR] has the right to enter into relations with other states, conclude treaties with them, exchange diplomatic and consular representatives, and take part in the work of international organizations” (Articles 73 and 80);
  • “A Union Republic is a sovereign Soviet socialist state that has united with other Soviet Republics in the Union of Soviet Socialist Republics” (Article 76);
  • “Each Union Republic shall retain the right freely to secede from the USSR” (Article 72).

That is, the USSR was a state in itself. At the same time, each of the Union Republics had its own status of a separate state.

As a result, according to the Constitution of the Soviet Union, the RSFSR was a separate state in relation to the USSR, which had the right to freely withdraw from the Union with other states. At the same time, the Constitution of the USSR does not provide for any succession of the USSR.

On December 4, 1991, the states that are or were constituent members of the Union of Soviet Socialist Republics and the USSR, as the predecessor state, “…taking into account the need for a radical revision of the entire range of relations between the states that were part of the USSR…”, concluded the moscow Treaty on succession in relation to the sovereign debt and assets of the USSR (hereinafter – the moscow Treaty) [4].

For the purposes of the moscow Treaty, its parties determined that “succession of states” means the takeover of the responsibility for international relations by one state from another on behalf of any territory, whereas “the moment of succession of states” means the date when the successor state takes over the responsibility for international relations from the predecessor state in relation to the territory that is the object of the succession.

According to Article 4 of the moscow Treaty, the parties agreed that shares of the constituents of the former USSR (please note this particular wording – “the former USSR”) in the total amount of sovereign debt and joint assets are:

  • russian Soviet Federative Socialist Republic – 61.34%;
  • Ukraine – 16.37%;
  • Republic of Belarus – 4.13%;
  • Kazakh Soviet Socialist Republic – 3.86%;
  • Republic of Georgia – 1.62%, etc.

It should also be specially noted that the moscow Treaty does not provide for the replacement of the USSR by the russian Soviet Federative Socialist Republic in international organizations, including the UN Security Council.

And already on December 8, 1991 the Republic of Belarus, the russian Federation and Ukraine signed in Minsk the Agreement on the establishment of the Commonwealth of Independent States (hereinafter – the Belavezha Accords) [5].

      The Belavezha Accords state that “the USSR as a subject of international law and a geopolitical reality no longer exists.”

Also, this international treaty determined that the norms of the former Soviet law shall not apply in the territories of the signatory states, and the former bodies and authorities of the former USSR shall cease their activity in the territories of the member states of the Commonwealth of Independent States (CIS).

In addition, the Belavezha Accords established that Belarus, the russian Federation and Ukraine guarantee the fulfillment of international obligations arising for the mentioned states out of the treaties and agreements of the former USSR.

In turn, on December 21, 1991, 11 independent states – former republics of the Soviet Union, including the Republic of Belarus, the russian Federation and Ukraine, signed the Almaty Declaration [6], which once again confirmed that with the formation of the CIS, the USSR ceased to exist. All signatories to the Declaration also guaranteed, in accordance with their constitutional procedures, the fulfillment of international obligations arising out of the treaties and agreements of the former USSR.

On the same day, December 21, 1991, the Council of the Heads of State of the CIS passed a decision [7]  that all the CIS states “…support russia in succeeding the USSR’s membership in the UN, including permanent membership on the Security Council, and other international organizations…”.

But, as follows from the content of the decision of the Council of Heads of State of the CIS, this document was signed only by 11 out of 15 constituents of the former USSR, without the participation and consent of the Soviet Union itself, following the termination of its existence.

On December 26, 1991, the Council of Republics of the Supreme Soviet of the USSR, with its Declaration No. 142-N [8] , stated the termination of the existence of the Soviet Union as a state and a subject of international law in connection with the creation of the CIS, and, among other things, invited the heads of the Independent States to consider the issue of the succession of the USSR and union-level bodies of state power and administration, as well as on the ratification, execution and denunciation of international treaties concluded by the USSR before the creation of the CIS. That is, Declaration No. 142-N, together with other evidence, confirms the nullity of the decision of the Council of Heads of State of the CIS of December 21, 1991.

Conclusions

So, after a thorough legal analysis of the UN Charter, the Constitution of the USSR, the moscow Treaty, the Belavezha Accords and the Almaty documents of December 21, 1991, the Declaration of the Council of Republics of the Supreme Soviet of the USSR No. 142-N, as well as other relevant documents, the author comes to the following conclusions:

  • According to the Constitution of the USSR, the Union Republics, including the RSFSR, had the status of separate states with the right to secede from the USSR. In turn, the USSR was also a separate state in relation to the Union Republics.
  • The UN Charter contains no provision for substitution or succession of the permanent membership on the UN Security Council of one country by another;
  • The Constitution of the USSR does not provide for the substitution of the Soviet Union by a Union Republic at international organizations and bodies, including the UN Security Council;
  • The supreme bodies of state power and administration of the USSR did not pass any decisions to substitute the Soviet Union with the RSFSR at international organizations and bodies, including the UN Security Council;
  • Not a single international treaty signed with the participation of the USSR provides for the substitution of the Soviet Union by the RSFSR at international organizations and bodies, including the UN Security Council;
  • The russian Federation actually enjoys the rights and fulfills the obligations of a permanent member of the UN Security Council without proper legal basis;
  • The final judgment on the legal validity of the USSR substituting the russian Federation on the UN Security Council can be legitimately made by the International Court of Justice by issuing an advisory opinion, in particular, at the request of the UN General Assembly.
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