"They're not there, but they do have veto power. How Russia Forgot to Join the UN" — Boris Babin, Legal Advisor at BARRISTERS, LLC

Since 1991, Russia has never properly formalized its membership in the UN—let alone its permanent membership on the Security Council.

Recent attempts by the aggressor state to use the UN Security Council as a platform for political provocations have once again sparked active discussion about Russia’s formal and de facto status within the UN. In particular, it has come as a real revelation to many that the UN Charter, as the founding document of this organization, contains numerous provisions regarding the special rights of the five explicitly named permanent members of the Security Council—including the USSR—in shaping the global legal order, yet makes no mention whatsoever of the Russian Federation.

Possible explanations regarding the complex procedure for amending the text of the Charter, as regulated by Article 109, are in fact untenable, since, starting from the day it was adopted in San Francisco, the UN Charter has been successfully amended three times—namely in 1962, 1971, and 2005. The most recent amendments involved removing references to “enemy states” from the text of the Charter, for it should not be forgotten that the UN is, first and foremost, an organization of the victors of World War II, and only subsequently of the states that joined it later. The 2005 amendments were discussed within the UN system for an entire decade, and in principle, nothing prevented the replacement of “USSR” with “Russian Federation” in the text of the Charter as part of those amendments, but this did not happen—neither in 2005 nor later. Thus, this is not merely a technical flaw in the text of the Charter, but a serious political and legal problem, the depths of which few have yet explored.

The Russian version of the events of 1991–1992, according to which Russian diplomats replaced their Soviet counterparts at the UN (or, more accurately, transitioned from being Soviet to Russian), has already become a classic narrative. It cites the fact that the UN and its member states tacitly accepted the letter from the President of the RSFSR dated December 24, 1991, No. Pr-2338, in which the UN Secretary-General was informed that the USSR’s membership in the UN, in particular in the Security Council and other bodies and institutions of the UN system, was “continued” by the Russian Federation (RSFSR)—and not just so, but “with the support of the CIS countries.”

Based on this premise, the letter requested that the Secretary-General use the name “RF” instead of “USSR” (where exactly and how, incidentally, was not specified). Additionally, Letter No. Pr-2338 contained a declaration that the RF allegedly “fully retains responsibility for all the rights and obligations of the USSR” in accordance with the UN Charter, including financial obligations, and demanded that representatives of the USSR at the UN be treated as representatives of the RF. Paradoxically, it is precisely this letter that is cited on the official UN website as the basis for the Russian Federation’s membership “with the support of 11 CIS member states.”

Somewhat later, on January 13, 1992, the Russian Foreign Ministry sent a note to foreign governments via embassies accredited in Moscow, declaring Russia’s intention to exercise the rights and fulfill the obligations arising from the international treaties of the USSR and requesting that the Russian Federation be regarded as a party to those treaties in place of the USSR. This is intended to be understood as an explanation of the Russian Federation’s implementation of

the UN Charter, which Russia has never signed or ratified. Thus, according to this version, all of the Russian Federation’s powers in the UN are based on a 1991 document submitted to the UN on behalf of one state entity (the RSFSR) in favor of another state entity (the Russian Federation). Neither of these state entities was a member of the UN or a party to the UN Charter at the time of its submission (unlike, for example, the Ukrainian SSR). Moreover, as of the date of submission of Document No. Pr-2338, neither the RSFSR nor the RF were independent states, because—unlike the union republics—Russia had not yet proclaimed its own independence at that time, having limited itself in 1990 to a declaration of state sovereignty. In fact, the renaming of the RSFSR to the RF did not take place until December 25, 1991 (RSFSR Law No. 2094-1), and the de facto recognition of the Russian Federation’s independence by subjects of international law began no earlier than December 26, 1991. Consequently, the very legal standing of Document No. Pr-2338, which was sent prior to these events, raises significant questions.

On the other hand, Letter No. Pr-2338 refers to “support from the CIS countries” as, in effect, the sole political and legal basis for the demands and requests set forth therein. At the same time, there was no legal confirmation of the existence of such support at the time this letter was submitted. After all, the fundamental Agreement on the Formation of the CIS between Belarus, the Russian Federation, and Ukraine of December 8, 1991, made no mention of such support; Article 12 merely stated that the three states “guarantee the fulfillment of international obligations arising for them from the treaties and agreements of the former USSR.” In other words, the text referred to the joint or separate fulfillment of these obligations by the three states, and not exclusively by Russia. I would like to remind you that Ukraine ratified the Agreement of December 8, 1991, by Parliamentary Resolution No. 1958-XII of December 10, 1991 (published on December 13), which contained significant reservations regarding the text, particularly concerning the need for consultations among CIS states on Ukraine’s foreign policy. This was followed by the expansion of the CIS through the adoption in Almaty of the Protocol of December 21, 1991, and the inclusion in the CIS of the post-Soviet republics, with the exception of the Baltic states and Georgia (this is important). Indeed, after the post-Soviet states signed this protocol, a “decision on behalf of the heads of state of the CIS” was adopted that same day, in which “the CIS states support the Russian Federation in its efforts to extend the USSR’s membership in the United Nations, including permanent membership on the Security Council and in other international organizations.” At the same time, an obvious legal dilemma arose, as the protocol entered into force for the “new” CIS states as they ratified it, a process that dragged on until 1994.

Specifically, of the eleven countries that signed the protocol on December 21, on the basis of which the infamous “decision on behalf of the heads of state of the CIS” was issued that same day, only Kazakhstan had managed to ratify it by the time the RSFSR president’s note was sent to the UN. Ukraine, for its part, never ratified the December 21 protocol at all, while a number of post-Soviet states ratified the December 8 agreement without any mention of the protocol’s ratification documents. The December 21 protocol itself contained no information whatsoever regarding the time and conditions of its entry into force, which, of course, did nothing to simplify the situation.

This appalling legal chaos surrounding the formation of the CIS, the entry into force of the relevant acts, and the states’ membership in the Commonwealth led to a little-known but valid decision of the CIS Economic Court dated March 31, 1994, No. 02/94. According to this decision (and this is very important), “the states are founders of the CIS from the moment each of the aforementioned states ratified the Agreement of December 8, 1991.” Thus, de jure, based on the dates of ratification, as of the adoption of the “decision on behalf of the heads of state of the CIS” and the submission to the UN of a letter from the President of the RSFSR No. Pr-2338 to the UN, the CIS had only three and four participants, respectively—that is, a clear minority of the total number of founding states. Incidentally, according to Decision No. 02/94 of the CIS Economic Court, Ukraine is merely a founding state of the CIS but has never acquired the status of a member state of this organization. Whether Ukraine can be considered a “CIS state” in the context of the RSFSR President’s letter to the UN remains an entirely open question. Therefore, in Letter No. Pr-2338, the President of the RSFSR had no right to refer to any common position of the CIS states, because as of the date it was sent, such a position did not yet legally exist for most post-Soviet countries. Nor did the very category of “CIS state” exist at that time.

Let me remind you that even if we disregard the aforementioned confusion and the haste in sending the letter to the UN, legally binding “decisions on behalf of the CIS heads of state” do not constitute international treaties. For example, unlike the CIS’s founding documents, the “decision of the heads of state” dated December 21—concerning the crucial issue of maintaining Russia’s status on the Security Council—was not ratified by any of the post-Soviet states. Moreover, this decision was not unanimous—not only legally but also politically. After all, it was not only the Baltic states that did not participate in the “delegation” on December 21, 1991, regarding the Russian Federation’s replacement of the USSR at the UN, but also Georgia. And while Estonia, Latvia, and Lithuania did not consider themselves part of the USSR and did not claim the right to determine its future, Georgia’s position—as one of the six founding states of the USSR in 1924— is politically considered indispensable here. Its non-participation in the negotiations in Almaty directly indicates a lack of consensus among the successors to the USSR regarding the Russian Federation’s role in the UN, even at the political level.

Thus, Letter No. Pr-2338 from the President of the RSFSR not only lacked logic and was not based on legal facts; it was, in fact, a direct lie. It is also worth noting the statement by the USSR Committee on Constitutional Control dated December 11, 1991, adopted following the Agreement on the Formation of the CIS. This document stated that “the cessation of the USSR’s existence as asubject of international law and its replacement by a non-state entity calls into question the preservation of its rights associated with the USSR’s status in the international community, in particular its permanent seat on the UN Security Council and the prerogatives arising therefrom.” Thus, the unresolved issue of the USSR’s membership in the UN following the formation of the CIS was raised by the highest authorities of the USSR themselves, which at that time (and as of the date of the RSFSR President’s note to the UN No. Pr-2338) were still in operation.

In reality, however, even the existence of some sort of virtual international agreement (which does not exist) between the post-Soviet states regarding support for the Russian Federation’s intention to take the USSR’s place on the Security Council and in other UN bodies would not be binding on either the UN itself or its member states. This is because for the Russian Federation to take the USSR’s seat at the UN, clearly articulated consent is required from both the UN itself and its member states—separately regarding the Russian Federation’s membership in the UN and separately regarding its succession to the USSR’s powers on the Security Council. The only way for a state to join the UN, other than founding states (such as the USSR or the Ukrainian SSR), in accordance with Part 2 of Article 4 of the UN Charter, is through the adoption of a corresponding resolution upon the recommendation of the UN Security Council—which never occurred in the case of the Russian Federation’s admission to the UN.

At the same time, there is a precedent for the admission to the UN of other states that emerged following the dissolution of socialist federations. For example, the division of Czechoslovakia led to the admission of both new states to the UN in 1993 as new members, specifically through a voting procedure in the Security Council and the General Assembly, and entirely regardless of Czechoslovakia’s previous status as a founding member of the UN. The breakup of the SFRY in the early 1990s led to the adoption in 1992 of Security Council Resolution No. 777 and General Assembly Resolution No. 47/1.

These resolutions stipulated that the new federation—the Federal Republic of Yugoslavia—could not automatically continue the SFRY’s membership in the UN. It is noteworthy that the Russian Federation voted in the Security Council and the General Assembly in favor of these resolutions, which directly contradicted the procedure by which the Russian Federation itself had joined the UN. Subsequently, Russian diplomats explained this by stating that the succession of Yugoslavia was not an issue “for which the UN Charter provides no solution, namely, the consequences for UN membership of the dissolution of a particular member state in the absence of a consensus among that state’s successors or among the members of the organization as a whole.”

Thus, the existence of differing views among states regarding the succession of a state’s UN membership—as the Russians themselves assert—renders any option impossible other than voting for the newly formed state as a new member of the organization. And this, of course, has nothing to do with permanent membership on the Security Council or the right of veto, but simply with UN membership. Consequently, regardless of the content of the correspondence between the President of the RSFSR and the UN Secretary-General in December 1991, the Russian Federation and the UN have failed, from that very moment until now, to comply with the procedures governing the Russian Federation’s membership in the UN.

A separate issue is the Russian Federation’s participation in the UN Charter, since Russia has never ratified this international treaty; At the same time, the position of the United States is key to determining whether the Russian Federation is a member state of the UN Charter, since the United States is the depositary of the Charter and has the right to independently determine whether states have complied with the procedure for acceding to this document. But should we trust the Russian Federation’s notes on this crucial matter?

It is worth recalling here that neither the UN Charter itself nor the fundamental 1969 Vienna Convention on the Law of Treaties guarantees anything to anyone in the area of succession. Moreover, Article 75 of that convention specifically permits special obligations regarding international treaties “that may arise for the aggressor state as a result of measures taken in accordance with the UN Charter in connection with aggression by that state.”

The relevant 1978 Vienna Convention on Succession of States in Respect of Treaties entered into force only in 1996, and although it was ratified by Ukraine on September 17, 1992 (No. 2608-XII), it is currently in force only for 24 countries worldwide, none of which include either the Russian Federation or the United States. Furthermore, pursuant to Article 7, paragraph 1, it does not apply to cases of succession that occurred prior to its entry into force; consequently, it is also inapplicable to the dissolution of the USSR. At the same time, this convention specifies that any treaties concluded by predecessor and successor states, as well as unilateral declarations by new states, do not in and of themselves constitute a situation of succession under a treaty. Moreover, this convention explicitly states in Article 16 that succession to a treaty, accession to which requires the consent of other contracting states, is not possible without such consent. This describes the situation with treaties such as the UN Charter. Furthermore, this 1978 treaty does not apply to situations of armed conflict between states or the occupation of their territories.

Consequently, questions arise regarding the Russian Federation’s ability to invoke the provisions of the UN Charter as an international treaty; its membership in the Charter is still subject to proper assessment by its depositary.

One might also mention the rather exotic 1983 Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts, which has not entered into force and has been ratified by only seven states (including Ukraine, since 1992). This convention is referenced in another treaty which, unlike the agreements cited above, had entered into force and was in effect at the time of the dissolution of the USSR and the submission of Sheet No. Pr-2338 by the President of the RSFSR to the UN.

This is the Treaty on Succession to the External State Debt and Assets of the USSR of December 4, 1991, which, pursuant to Article 16, entered into force upon signature and did not require ratification. The validity of this document, unlike the agreements on the formation of the CIS and the acts arising from those agreements as of December 1991, is indisputable; as it was subsequently confirmed by the actions of the states, including the Russian Federation and Ukraine, and, for example, by the Additional Agreement to this Treaty dated March 13, 1992. The significance of this Treaty for the situation regarding the UN lies in the fact that, first, Article 1 incorporated all financial obligations of the USSR to international organizations (including the USSR’s contributions to the UN as a member state) as part of the USSR’s external public debt; and second, by distributing these debt obligations among the successor states (Ukraine received 16.37% of the USSR’s debts). Thus, the Russian Federation’s attempt to unilaterally settle the USSR’s obligations to the UN directly contradicts this treaty between the Russian Federation and Ukraine, which remains in force to this day.

Thus, all non-contractual, political decisions of December 21, 1991, regarding the delegation of authority to the Russian Federation to replace the USSR in the UN were contrary to the norms of international law in force at that time.

The question remains as to why, specifically in 1991–1992, not only the post-Soviet republics but also UN officials and member states remained silent regarding such a provocative act as Letter No. Pr-2338 and allowed the Russian Federation, by default and in violation of the UN Charter and other treaty provisions, to appropriate for itself both UN membership and the status of a permanent member of the UN Security Council, has an obvious answer. At that time, international law was disregarded for the sake of the immediate military and security expediency of “appeasing” the nuclear giant, and evidently in anticipation of the short-lived or merely formal independence of the post-Soviet countries as a “zone of Russian interests.” Such an act actually undermined the fundamental foundations of the UN, since from the very first vote cast on behalf of the Russian Federation rather than the USSR in the Security Council—in defiance of the Charter—the organization lost certain elements of its legitimacy.

International lawyers are accustomed to explaining certain phenomena in international relations—ones that seem to contradict common-sense or legal logic—by claiming that they constitute a new “international custom.” Indeed, the Russian Federation’s role as the USSR at the UN dragged on for nearly three decades due to the tacit consent of virtually all the world’s nations. But can international custom contradict the UN Charter and yet so “creatively” supplement it? Hardly. Furthermore, all international customs share an interesting characteristic: they are subject to change—and can change at any moment once they are no longer recognized by the world’s states or a significant portion of them.

Thus, today the Russian Federation cannot, de jure, be considered a party to the UN Charter, a member of the UN, or a permanent member of the UN Security Council; yet, de facto, it successfully enjoys all the rights and privileges of these three statuses. Its rights within the UN are based exclusively on a certain established practice, which some might consider an international custom. That is, of course, if they continue to view it that way in the future, since such a practice can change at any moment.

So what can be done in this situation? Of course, it would be naive to expect that tomorrow the Russian Federation will be asked to “pack its bags” and leave both the Security Council chamber and the UN itself. But to dismantle the practice of “Russian guest status” as quickly as possible, the ambiguity of Russia’s position on the Security Council and within the UN as a whole must be constantly discussed—at the very least at the expert level, through all possible mechanisms related to the United Nations. Of course, this must be linked to the issue of international crimes and violations committed by the Russian Federation or its leadership.

Should we expect any systematic action from the Ukrainian Ministry of Foreign Affairs, which, in its working methods and selection of personnel for New York and Geneva, still often remains faithful to the ideals of the People’s Commissariat for Foreign Affairs of the Ukrainian SSR? A rhetorical question. Although, of course, Ukraine—as a state that, first, is a founding member of the CIS but is not a member of it, second, is indisputably the key successor state to the Union in terms of political, social, and economic significance, and third, is currently a victim of Russian aggression—there would be the greatest chance of success here.

In addition to initiating all sorts of discussions and political debates, it would be worth taking at least the following steps: clearly informing the UN that Ukraine, from December 8, 1991, to the present, has never, for a single moment been a “CIS state” or a “CIS member state,” that we have not ratified the protocol of December 21, 1991, and are not parties to the 1993 CIS Charter. It would also be worth discussing the issue of Ukraine’s payment of its 16.37% share of “union” membership dues to the UN, which, since 1991, the organization—under unknown circumstances and contrary to the 1991 Treaty—has been attributing solely to the Russian Federation. As for Ukraine’s own contributions to the UN—that is an entirely different matter; we have been paying them separately from the USSR since 1945 and will always pay them separately. Perhaps Georgia (given the above and its status as a founding member of the USSR and a non-member of the CIS at present), as well as the Baltic states, could at least offer a political assessment of the Russian Federation’s role in the UN. These three states are not legal successors to the USSR, but, in my view, they have the right to a say in determining the acceptability—at least for themselves—of the Russian Federation’s role as a “state-guarantor.” And of course, if any country in the world were to hold official consultations with the United States—as the depositary—regarding the Russian Federation and the UN Charter, that would also be a good thing. After all, there are many countries that have at times suffered from Russia’s unlawful veto in the Security Council; perhaps someone bold and persistent will step forward.

Finally, I’ll explain why this issue is important and cannot be dismissed as a legal “semantic game.” After all, Russia’s systematic undermining of the global legal order has already, following the events of 2014, reached the point of no return. Therefore, sooner or later, the UN system will be reshaped in light of new global realities—either as a result of the victory of authoritarian countries and the demise of global democratic civilization—or the opposite.

In the other scenario (which I hope is more acceptable to readers), the official return of the coalition of victors to the question “What are Russian diplomats doing in this hall, and on what grounds?” will be the least problematic option for reforming the UN system. This would involve stripping the defeated dictatorships of their excessive supranational powers. We should start preparing for this right now.