The Biggest Geopolitical Swindle of the Twentieth century, or Why Russia's Presence in the UN is Groundless

How to expel Russia out of the UN and Why Ukraine Needs it

Many ZZN.UA’s readers have seen the speeches of the Permanent Representative of Ukraine to the United Nations Serhiy Kyslytsya, in which he calls the Russian Federation "a country that groundlessly takes the place of the USSR in the UN". In this article, we offer a detailed explanation of why this definition of Russia is absolutely correct.

Moreover, we consider depriving Russia of its unjustifiably acquired status of membership in the UN and the UN Security Council as an element of the system of guarantees of Ukraine's security in the future.

Study of this issue and the conclusions from it can become not just another irritant for the aggressor country, but bring Ukraine the greatest possible victory on the foreign policy front after a hypothetical accession to NATO.

The Collapse of the USSR

A bit if history.

 It is well known to all specialists in the field of international law and international relations that the text of the Agreement on the Establishment of the Commonwealth of Independent States (the Bialowiezha Accords of December 8, 1991) begins with the statement in its preamble that the USSR as a subject of international law and geopolitical reality ceases to exist.

Since the Constitution of the USSR of 1977 in the version that was in force in 1991 simultaneously defined the republics as formally sovereign entities, while depriving them of independent powers in the fields of defense and foreign relations, it is clear that the very fact of concluding and signing the Bialowiezha Agreement indicates that the leaders of the signatory countries acted clearly outside the framework of such a constitution, since for them it was self-evident and undeniable that the state, determined by such a constitution, had ceased to exist. The signatory states did not use Article 72 on the right of free secession from the USSR (which preserved at least in theory a single state) but decided to terminate the existence of the state itself. Thus, all the attempts of the Russian Federation and its troubadours at different levels to use the arguments that the USSR as a state continued its existence, but in a different guise and name (the Russian Federation) simply contradict the available documents and our understanding of the twentieth century’s history.

CIS and the UN

Later, at the beginning of December 1991, the leaders of the member states of the Commonwealth of Independent States, which united for some time some of the states that were formed after the collapse of the USSR, held a meeting in the capital of one of them, Almaty, where, among other things, they adopted the Decision of December 21, 1991, in which they only recognized the fact that Belarus and Ukraine, together with the USSR, were founding members of the United Nations (unlike the Russian Federation) and supported the latter in continuing the membership of the USSR in the UN, including permanent membership in the Security Council, and other international organizations, and not in replacing it or acquiring it instead of the USSR.

What exactly was meant by the term "support", how such support correlates with the content of the UN Charter and whether the CIS member states had the authority to transfer/delegate the USSR's seat in the UN and the UN Security Council to another country remains unknown. By confirming their support, the CIS member states only confirmed the position that could not replace the decision, the adoption of which, per the provisions of Articles 3 and 4 of the UN Charter, belongs exclusively to the powers of the General Assembly of the United Nations. Thus, when sending his letter of December 24, 1991 to the UN Secretary-General, President Yeltsin must have understood the illegality of his own actions, which were planned to be carried out with its use, namely, a simple replacement of plates on the table to replace the complex procedure provided for by the special provisions of the UN Charter, the same Charter, which in its Article 23 still contains a reference to the USSR as a permanent member of the UN Security Council.

The grounds and conditions under which no measures were taken by the then UN Secretary-General, Mr. Javier Pérez de Cuéllar, still remain unknown, although part of the picture of those events became clear from the interview of Mr. Yuri Vorontsov, who was the last Permanent Representative of the USSR and the first of the Russian Federation to the UN, which testifies to the complete disregard of the fundamental procedures in the UN.

According to the documents, the content of which became known to us, from the very beginning of the procedure of the Russian Federation's accession to the UN, there were numerous substitutions of concepts, falsifications, and disregard for the UN procedural norms. Starting from the fact that at the time of applying to the UN the state with the name of the Russian Federation simply did not exist, the change of the name of the RSFSR to the Russian Federation took place under the Law of the RSFSR "On Changing the Name of the State of the Russian Soviet Federative Socialist Republic", which the same Mr. Yeltsin signed only on December 25, 1991, it is unlikely that he could not but understand when signing the Letter of December 24, 1991 to the UN that he simply had no right to demand any changes in the interests of the non-existent at that time state. It is no coincidence that the then Permanent Representative of the USSR to the UN, sending a cover letter to Yeltsin's appeal, could not even accurately formulate which State should be included in the ranks of Member States instead of the USSR, the Russian Federation or the RSFSR.

Many questions remain about the content of the actions, or rather the fact of the inaction of the then UN Secretary-General, Mr. Javier Pérez de Cuéllar, who, having received the above-mentioned message from Boris Yeltsin and the Cover letter, could only send it to the national delegations for familiarization by his own Telegram of December 24, 1991 without any proposals or plan for further action.

It is symptomatic that the very content of the Almaty Agreements and Declarations in English translation was sent to the UN Secretary-General only on December 30 by a letter dated December 27, 1991 from the Permanent Representative of the Republic of Belarus to the UN, Mr. G. Buravkin.

In general, the procedure of admission of new members was not something new or unknown for the UN in 1991, in particular, from the very beginning of the UN activity this procedure, described in the UN Charter, called for a lively practical interest, as evidenced, in particular, by the Letter of the Chairman of the Sixth Committee to the Chairman of the First Committee of the UN on the admission of new members dated October 8, 1947.

Being well aware of the potential consequences of the processes that took place in the summer and autumn of 1991 in the USSR, the UN legal team studied the issue and consequences of the application of the newly formed countries in the place of the USSR to the UN for membership or confirmation of membership. In particular, traces of such preparations can be traced in the text of the Internal Memorandum on the review of the previously published article on this issue of October 10, 1991, prepared by the Under-Secretary-General for Legal Affairs and UN Legal Counsel, Professor Karl-August Fleischhauer. The opinion of this well-known specialist in international law and UN procedures was further developed in the Memorandum of December 23, 1991, which he sent to the Secretary-General of the United Nations regarding the first information about the fact of signing and the content of the Protocol in Almaty on December 21, 1991. Also, as it became known to us, the Legal Opinion on the proposals contained in Boris Yeltsin's Letter of December 24, 1991 was prepared and sent to the Secretary-General, the full content of which, despite the efforts made, remains unknown, but the position set out in the previous legal opinions we have given leaves no room for doubt that an experienced scholar and official legal adviser did not foresee other scenarios for resolving the situation, except for those provided for in the text of the UN Charter.

It is important to note that in the process of dividing the assets and liabilities of the former USSR in the early 90s, the Russian Federation itself acted not as a mythical “continuator” country, but as one of the 15 and equal with other successor countries after the collapse of the USSR, as evidenced by the documents it signed, in particular the Treaty on Succession of the External Public Debt and Assets of the USSR of December 4, 1991, Article 2 of which recognizes all republics of the former USSR as successor states of the USSR.

This treaty refers to another international agreement, namely the Vienna Convention on Succession of States in respect of State Property, State Assets and State Debts of 1983 (ratified by Ukraine only in 1992). The said Convention also does not contain any references to mythical “continuator” states, but clearly defines the options of succession, one of which, namely the emergence of successor states, was the basis of all agreements on the distribution of assets and liabilities of the former USSR, in particular Article 2 of the Agreement between the Government of Ukraine and the Government of the Russian Federation on the realization of the right to foreign property of the former USSR for diplomatic, consular and commercial missions of August 3, 1992. 

The Russian Federation and the UN

The provisions of Article 3 of the UN Charter stipulate that the original Members of the United Nations are States, that:

• Participated in the Conference in San Francisco (1945) on the establishment of the International Organization, or
• Signed the Declaration of the United Nations of January 1, 1942 (Washington);
• Signed and ratified the UN Charter under the provisions of Article 110 of the UN Charter.

Currently, the Russian Federation does not meet any of these requirements. In particular, the RSFSR was not a participant of the 1945 Conference or a signatory in 1942.

According to the Letter of Response of the Ministry of Foreign Affairs to the request received from the Parliament of Ukraine, the Ministry of Foreign Affairs of Ukraine acknowledged the absence of documents that would testify to the Russian Federation's status as a UN member, and, in turn, sent a request to the UN to provide such documents.

A separate obstacle for the Russian Federation is the requirement to ratify the UN Charter. As it is known, the Soviet Union submitted its instrument of ratification on October 24, 1945, becoming the 29th country to deposit it under Article 110 of the UN Charter, which brought the Charter into force, and thus October 24 is celebrated in the world as the UN Day, the ratification instruments of the BSSR and the Ukrainian SSR were submitted (the Presidium of the Supreme Soviet of the Ukrainian SSR ratified the UN Charter on August 22, 1945), at the same time, neither the RSFSR (due to the lack of grounds for this) nor the Russian Federation has ever ratified the UN Charter, so it is not binding on this country, which is quite normal and inherent in a non-member country.

Article 4 of the UN Charter allows other States to become members of the UN under the following conditions:

• A peace-loving State which accepts the obligations under the UN Charter and which, in the opinion of the Organization, is able and willing to fulfill these obligations;
• Admission is by Resolution of the UN General Assembly on the recommendation of the Security Council.

Both of these conditions have never been fulfilled by the RF, and the first part of them cannot be fulfilled at all today since per the provisions of Article 2, paragraph 4 of the UN Charter, UN members are obliged to refrain from the threat or use of force against the territorial integrity or political independence of any state. Also, no traces of voting or documents on compliance with the second part of the requirements for UN member states currently exist. Instead, there are a number of decisions, which were voted down by the Russian Federation in the UN General Assembly and the UN Security Council, as it is well described in the Security Council Research Report "Veto" of October 19, 2015.

It should be admitted that among professional researchers there is also a widespread opinion about the imaginary "practical" impossibility to do this, or even about the "omission" of such an opportunity, or the application of the principle of "estoppel", as stated in the article by Larry D. Johnson on the prospects of the Russian Federation in the UN and the history of its appearance there in general and in the Security Council in particular. It reflects the position with which the authors do not agree but recognize its existence and relative spread among specialists.

 At the same time, the dangers for the World Society of the abuse of the Russian Federation's seat in the UN and its Security Council are well described in the work of Philip Remler "Russia and the United Nations: Law, Sovereignty, and Legitimacy", published in 2020, Professor Andrew McLeod in his article "Invasion of Ukraine: Should Russia lose its seat in the UN Security Council", published on the first day of the current phase of the war, and Mark Thiessen's article, which explicitly proposes to transfer the Russian Federation's seat to Ukraine.

Prospects for expelling Russia from the UN

Given the above, it is absolutely groundless to consider the Russian Federation as a member state of the UN or its body, the UN Security Council. The very system of uniting countries into an international organization, subject to the approval of their membership by other member countries and the establishment of a separate working body of the victorious countries (as permanent members) together with other members (non-permanent) was inherited by the UN Charter from the Charter of the League of Nations, which testifies to the fundamental role of such a procedure for acquiring the membership, tested by years of practice, which excludes the possibility of applying any customs to the current situation since there is no other state that would have joined the family of UN member states without observing the procedure provided for in the UN Charter.  

Provided that the Russian Federation stops abusing the rights that do not belong to it, in particular as a Permanent Member of the UN Security Council, it will be possible not only to adopt decisions on condemnation of the unleashing of aggressive war but also to introduce peacekeeping forces and other actions that could potentially lead to the end of bloodshed and punishment of those responsible for its unleashing, as evidenced by the example of the war in Korea in the 50s or the restoration of Kuwait's sovereignty in the early 90s.

All of these arguments, examples and precedents show that there is a real opportunity for Ukraine to act together with the international community to restore justice and expel from the ranks of the member states and permanent members of the UN Security Council the delegation of the country that does not have and cannot have any legal grounds for exercising non-existent powers. At a time when some consider the collapse of the USSR the greatest geopolitical catastrophe of the 20th century, we are convinced that the Russian Federation's entry into the UN was by far the greatest geopolitical swindle of the late 20th century. 

It should be emphasized how unprecedented the situation with the Russian Federation is. In the case of Czechoslovakia, both new countries, the Czech Republic, and the Slovak Republic, which emerged as a result of the dissolution of Czechoslovakia, were going through the procedure of joining the UN.  In the case of Sudan and North Sudan, one country separated from the other and became a member of the UN. The case of the Russian Federation is indeed unique, because Russia neither wants to recognize itself as just one of the successors of the USSR nor as a de facto new state, holding on to the situation that was deemed by the UN as inappropriate, wrong and erroneous within a few months after its emergence. We are talking about Yugoslavia, which in the summer of 1992 tried to repeat the Russian "scheme" of simply replacing the plate with the name of the country (new Yugoslavia instead of SFRY). A separate UN Security Council Resolution №777 of September 19, 1992, was adopted on the inadmissibility of such a decision.

It is absolutely not accidental that the Deputy Secretary of the Security Council of the Russian Federation and former President of the Russian Federation, Mr. Medvedev, in his interview recognized the control of the permanent member's seat in the UN Security Council as equally important to the greatest nuclear stockpile, that guarantees the existence of the Russian Federation in its present form. At the same time, according to experienced Ukrainian diplomats, only raising the issue at the UN General Assembly to investigate the legitimacy of the powers of the Russian delegation to the UN and the UN Security Council should lead to the opening of new opportunities in the negotiation process for Ukraine.

Now, when the last doubts about the Ukrainian victory on the battlefield are disappearing in the international community, it is also necessary to consolidate its results so that its fruits could be enjoyed by many generations of freedom-loving Ukrainian citizens. Apart from Ukraine’s territorial integrity, it should be impossible for Russia to repeat the invasion. The real guarantee is to deprive the aggressor country of such an opportunity. The international community must effectively and proactively counter Russian aggression using all the tools at the disposal of the UN, which have been limited in recent years, just as in the forty years between the Korean War and Gulf War Resolutions, by the abuse of the powers granted to the Permanent Member of the UN Security Council, as so well described in the 1985 US Senate Report "The Soviet Presence at the United Nations". The same powers, which were obtained outside the law and through bypassing the procedures and were used and abused by the Russian Federation to justify its own aggressive policy and prevent it from being brought to justice.

Practical ways to prevent the Russian Federation from abusing the voice of the Permanent Member of the Security Council in the UN during the investigation of the actual circumstances of their entry into this working body of the UN are well described in the article by D. Chapman and E. Svoboda "Should Russia abstain from voting because of the Ukrainian crisis".

This publication contains a thorough analysis of the statutory possibilities and precedents for the UN reform. Countries, that have the status of Permanent Members of the UN Security Council, should be deprived of uncharacteristic opportunities, and prevented from membership in the UNSC, if they do not meet the minimum criteria for the UN Member States, since UNSC plays, or should play, a decisive role in the global security architecture.

The first, but not the last step should be to investigate the grounds for the Russian Federation’s delegation credentials, after which the General Assembly and the UN Security Council, acting within their powers, have the right to recognize the self-evident fact of the termination of the existence of the USSR and the need for all countries to comply with the procedure for acquiring membership in the UN and its bodies, provided that such countries really want to become part of the world community based on the principles that underlie the creation and activities of the UN. These events can take place now, during the 77th session of the UN General Assembly, which is currently underway, or during the Ministerial Meeting of the Security Council, which will begin in the coming daysmed. 

The Initiative Group established in Ukraine has achieved significant success in a short period of its activity, simultaneously conducting research, information campaign, and consultations with experts in the fields of international law and international relations and organizations around the world. The global community needs to be convinced to take effective steps to restore justice within the UN. The Initiative Group introduced a Petition in support of the idea of expelling Russia from the UN. In fact, as a result of its activities, for the first time, the national Parliament drew attention to the problem of the Russian Federation's presence in the UN and contributed to the sending of the relevant official requests to the UN Secretary-General. The objective is the following: officially receive from the UN all existing materials on the history of the Russian Federation's entry into its walls. This, indeed, is the first case of the beginning of a formal procedure to expel the aggressor country from this Organization.

There is a long and difficult way ahead, but by joining efforts, it is quite possible to overcome it. Each of us can already take the first step towards achieving the common goal - to sign the Petition "Kick Russia from UN" to deprive the Russian Federation of all the benefits of unjustified participation in the UN.

Read this article in russian and Ukrainian.