Ukraine invasion: should Russia lose its seat on the UN Security Council?

The Security Council was established by the 1945 UN Charter and comprises 15 members. Ten rotating non-permanent countries are elected by the UN General Assembly to do a two-year term on the Security Council. Five members – the USSR (now Russia), Republic of China (now People’s Republic of China), the US, UK and France – have the status of permanent members and so have a veto on any vote before the Council.

There is no mechanism to remove a permanent member of the Security Council written into the UN Charter. The word “permanent” was to mean just that. But there is a process to remove a country from the United Nations. That would require a vote of the UN General Assembly based on the recommendation of the Security Council. This has never been done. And given that Russia has a veto on the Security Council, the Council cannot recommend Russia’s removal without Russia’s agreement. This simply will not happen. So no, Russia cannot be kicked out.

But is Russia validly there at all? This is Ukraine’s question. The UN Charter says that the USSR, not Russia, is the permanent member. While no permanent member of the Security Council has ever been removed, two have changed – and it is worth analysing how and why, not just for the current crisis but for the next one surely coming over Taiwan.

Because the two changes were China and Russia.

The China question

From the formation of the UN in 1945 until 1971, the “Chinese seat” was held by the Republic of China (ROC), the Taiwan-based government that claimed to represent “all of China”. But in 1971, the seat switched to the People’s Republic of China (PRC), the Beijing-based Communist government that also claims to govern “all of China” and which still holds it.

While it is often said that “Nixon recognised China” in 1971, the truth is that the then US president did not recognise China – not in so many words, anyway. What Richard Nixon did was to change the recognition of who governs China_ – from Taipei to Beijing. And this also changed which of the two Chinas sat on the Security Council.

It’s an extremely important point. Take the Korean War, which raged from 1950 to 1953 and pitted North Korea and China (Beijing) against South Korea, supported by US and UN forces. The deployment of UN forces had to be approved by the Security Council – including China (Taipei) – to fight against China (Beijing).

These days, few people would argue that Taiwan and mainland China are separate, sovereign nations, and not even Taiwan claims independence. From Beijing’s perspective, which claims Taiwan as a renegade province, a takeover of Taiwan by force would not be an “invasion”, because a country can’t “invade” its own territory.

Continuing states

But why did Russia get the USSR’s seat following its dissolution? In 1991, the Alma-Ata Protocol was signed by the majority of Soviet republics, declaring the end of the Soviet Union and agreeing that Russia would take over the USSR’s seat. Russia then wrote to the UN requesting that the name USSR be amended to Russian Federation and that nothing else would change.

International lawyers have questioned the legality of this and have debated whether the dissolution of the USSR should have dissolved its seat at the Security Council. This is what Ukraine is now arguing. The whole matter rested on whether Russia was the “Successor State” or a “Continuing State” under international law. In 1991, Alexander Vladimirovich Yakovenko – a recent Russian ambassador to the UK who was at that time a mid-level bureaucrat in the Ministry of Foreign Affairs in Moscow – wrote to argue that Russia should inherit the permanent seat.

He set out that a Successor State is a new country formed from the dissolution of an older one – and had no continuing rights or liabilities. All rights and liabilities would need to be renegotiated. A Continuing State, however, is the largest part of a country after a small part has broken away. It keeps the former rights and liabilities of the old country – including membership to international organisations and embassies. Yakovenko concluded Russia was the Continuing State.

In 1991, I worked as a young lawyer on a case before the High Court of Australia: Baltic Shipping v Dillon. A Soviet ship sank in New Zealand killing one crew member and causing harm to many Australian passengers. The Baltic Shipping Company was owned and insured by the Soviet government. But as the Soviet Union had ceased to exist, Baltic Shipping’s lawyers argued in court that the liability became uncertain because nobody knew who the real owners or insurers were. As the lawyers in the case, we then raised the question of Security Council membership. The Russian government quickly admitted liability for the sunken ship, not wanting to lose the Security Council seat.

This article was originally published by The Conversation

Image credit: Shutterstock

And China will not reopen the question now.

And another thing

There is another country that won’t want to not reopen the question – the UK. This is because, if Scotland has another independence referendum and breaks away, England and Wales will likely point to Yakovenko’s memo and claim – like Russia – to be the Continuing State not Successor State to the UK in order to retain the Security Council seat.

So, given that three permanent members of the Security Council – Russia, China and the UK – all likely benefit from the Continuing State argument, Ukraine’s hopes of removing Russia from the Security Council appear doomed.