Expelling Russia from the UN Security Council — a How-to Guide

Faced with objections from Russia and a small band of its allies, Ukrainian President Volodymyr Zelenskyy addressed the United Nations (UN) General Assembly last week and posed a long overdue question: Why does Russia still have a veto seat on the UN Security Council?

In the past, the United Nations has twice taken extemporaneous steps to modify or limit a Member State’s participation when the organization deemed such steps necessary. A similar improvisation, adapted to the circumstances, can work again.

A General Assembly vote in 1971 gave China’s UN seat to the government in Beijing, effectively removing Taiwan from the UN. Three years later, the General Assembly declared that the South African government no longer had the right to speak or vote in front of the Assembly. In no case did the assembly follow a script of the UN Charter. Instead, it relied on the creative use of the UN’s authentication procedures – the seemingly obscure procedures that determine who represents a given member state.

What would justify voting on the credentials of the Russian Security Council? How would such a vote work? And why would the authentication of a representative of Ukraine be the right solution to fill the seat that Russia is vacating?

According to Article 23(1) of the UN Charter, the five veto members of the Security Council are “[t]the Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom. . . and the United States of America.” The seat of the USSR has been occupied by representatives of the Russian Federation since December 1991. The wording of Article 23(1) has not changed since then.

International lawyers often describe this situation as having arisen automatically. However, this did not happen. A Russian representative occupying the seat of the USSR resulted from an agreement. The agreement, both tacit and explicit, was part of the overall peaceful transition to a new Russian political order and to Russia’s largely seamless legacy of a multitude of Soviet rights, privileges, and assets.

Other outcomes were possible. Status December 1991, although at that time no one pursued the possibility: two UN members besides Russia were in principle also suitable for occupying the seat in the Security Council of the USSR. Ukraine and Belarus were both union republics of the USSR – and both were also “original members” of the UN, ie founding member states. No other UN member had or has these qualities, as negotiated at Yalta and accepted at San Francisco in 1945 – both had Union Republic status in the former USSR and original membership of the UN.

But one of the two, Belarus, has aided and abetted Russia’s aggression against Ukraine since February 2022, disqualifying itself by any reasonable measure.

This makes Ukraine the only founding member of the UN that has remained true to the principles of the organization and was also part of the USSR. It therefore has a credible claim to the seat of the USSR.

How to make this claim? The first step would be for Ukraine to provide credentials to one of its diplomats to fill the seat in the USSR. No doubt Russia’s representative would insist that he, not a Ukrainian, keep the seat. However, other council members would be free to object to the Russian’s presence. An objection would lead to a matter requiring regulation.

This is where the Security Council’s rarely observed rules of legitimation come into play. Pursuant to rule 17 of the Provisional Rules of Procedure of the Security Council:

[a]Any Security Council representative whose Security Council mandate has been challenged continues to sit with the same rights as other representatives until the Security Council decides the matter (emphasis added).

The representative of Russia would therefore “remain seated” pending a decision in the Council. The determination of the matter – ie the determination of an objection to the mandate of a Security Council representative – falls under the rules of procedure. These are decided by a nine-member majority in the 15-member council. According to Article 27(2) of the UN Charter, such matters cannot be vetoed. Russia would be powerless.

Is there a reason for this? As luck would have it, there is. The Council was asked to revoke the agreement under which Russia originally occupied the seat of the USSR and to draw attention to Russia’s subsequent violation of this agreement. In December 1991, Russia agreed to respect the UN Charter, particularly the sovereignty and territorial integrity of its neighbors. Russia has expressed the same intent in numerous other forums and instruments, including the Alma Ata Protocols and the Budapest Memorandum. In return, Russia received numerous significant benefits, ranging from the USSR’s strategic nuclear assets and former Soviet space infrastructure to the privilege of representing the USSR on the Security Council under Article 23(1).

This settlement of questions of state continuity and state succession, which Russia favored in the 1990s, was carried out through highly individual transactions, not through the automatic application of general international law. Vital to the settlement was Russia’s pledge to recognize its neighbors’ sovereign borders as final and never to use force or threats against them.

Russia, through its aggression against Ukraine, has egregiously broken that promise, and thus its presence in the Security Council has lost its legal basis. The Council has the procedural tools to respond to Russia’s violation and to recognize Ukraine’s allegiance to the UN Charter.

If it wishes to reaffirm its own vitality and that of the United Nations as a whole, the Council should use these instruments without delay.

dr Thomas D. Grant is a Fellow of the Lauterpacht Center for International Law at the University of Cambridge and writes on geopolitics and international law. (See Aggression against Ukraine: territory, responsibility and international law (2015) and International Law in the Post-Soviet Space, Volumes I and II (2019)).