At Wednesday night’s historic meeting of the United Nations Security Council, as the gathered ambassadors finished giving prepared speeches calling for de-escalation, Vasily Nebenzya, Russian ambassador to the U.N., confirmed Russian President Vladimir Putin’s announcement that the country had begun a “special military operation” in Ukraine. In response, Ukraine’s ambassador openly questioned Russia’s status as one of the most powerful members of the Security Council.
Sergiy Kyslytsy, who’d prepared a statement arguing for diplomacy, ditched it to castigate the Russians for their unprovoked aggression — but only after he’d read aloud the section of the U.N. Charter on admitting new members and accused Russia of having used a "sneaky" loophole to gain the power to veto Security Council action.
It's a bold claim — but one that isn’t as farfetched as it may seem. The Soviet Union died in December 1991, but there are several possible dates we might place on the U.S.S.R.’s metaphorical death certificate. Whichever one is deemed correct could alter the way international politics has functioned since the end of the Cold War.
The Soviet Union died in December 1991, but there are several possible dates we might place on the U.S.S.R.’s metaphorical death certificate.
The U.N. was born as the extension of the World War II alliance headed by the United States, Soviet Union, France, China and the United Kingdom. Those five members gained permanent seats on the U.N. Security Council, which has the ability to pass resolutions that all member states must follow. They can also veto any enforcement action, including economic sanctions, the use of force and even expulsion from the U.N.
That last point was of specific concern to Stalin during the meeting of the Soviets, British and Americans at Yalta. The Soviet dictator was unsure about his country’s participation in the post-war organization, remembering well the way the U.S.S.R. had been booted from the League of Nations in 1940, as author Stephen Schlesinger recounted in his book “Act of Creation.” The veto power would prevent such a thing from occurring, British Foreign Secretary Anthony Eden assured him. Stalin was mollified, but he also insisted on getting three seats in the U.N. General Assembly, one each for the Soviet Union, Belarus and Ukraine. The Western powers agreed, resulting in all three counting as founding members of the U.N.
Fast-forward to 1991. The Soviet Union, having barely avoided a coup that August, was straining and on the verge of collapse. By December, the three Baltic countries under Soviet rule — Latvia, Lithuania and Estonia — had already declared their independence, and Ukrainians had voted to do the same. On Dec. 8, the leaders of Belarus, Ukraine and Russia signed the Belovezha Accords, which declared that “the U.S.S.R. as a subject of international law and a geopolitical reality no longer exists." The Commonwealth of Independent States would replace it, formed of states existing on equal footing.
As this was happening, there was mass speculation about what to do with the Soviet seat at the U.N. Nobody was sure just who the ambassador sitting behind the U.S.S.R.’s placard represented. The CIS isn’t a “state” and so couldn’t be the Security Council’s newest member. Russian President Boris Yeltsin told U.S. Secretary of State James Baker that Russia wanted to take over the seat at a meeting on Dec. 15 — which surprised Baker, since Russia hadn’t declared independence, wanted recognition as a new state but also wanted to take over much of the Soviet machinery.
Eight other former Soviet Republics joined the CIS on Dec. 17 by signing the Alma-Alta Protocols. Among those documents was a decision that the Commonwealth would “support Russia's continuance of the membership of the Union of Soviet Socialist Republics in the United Nations, including permanent membership of the Security Council, and other international organizations.” All the others — except for founding members Ukraine and Belarus — would follow the normal admissions process.
Neither the Security Council nor General Assembly ever voted to approve Russia’s membership.
Three days later, the day before Mikhail Gorbechev resigned as the premier of the Soviet Union, Yeltsin sent a letter to the U.N. Secretary General declaring that “the membership of the Union of Soviet Socialist Republics in the United Nations, including the Security Council and all other organs and organizations of the United Nations system, is being continued by the Russian Federation (RSFSR) with the support of the countries of the Commonwealth of Independent States.” He also insisted that the “Russian Federation maintains full responsibility for all the rights and obligations of the USSR under the Charter of the United Nations.”
Ukraine now argues that with the Soviet Union completely dissolved, Russia should have had to reapply for admission to the U.N. like the rest of the former Soviet republics. “For over 30 years, people have been sitting in the U.N. Security Council with a sign that reads ‘Russian Federation’ and pretending to be a legitimate member,” Kyslytsy, the Ukrainian ambassador, told The Kyiv Post this month. “Everyone around thinks this is normal.”
He has a point: The successor states of the former Yugoslavia and Czechoslovakia had to reapply to join the U.N. individually. Neither the Security Council nor General Assembly ever voted to approve Russia’s membership. Yeltsin himself referred to the seat as “vacant” before Russia moved in. But neither did any country formally object at the time, despite grumblings from smaller states that the permanent members’ permanency made even less sense than ever.
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Ukraine’s argument has supporters and detractors. Israeli law professor Yehuda Blum argued in 1992 that Russia’s claim to the Soviet seat didn’t sit right with precedent. The U.N.’s Legal Committee had decided in 1947 that “the rights and obligations of membership of a State cease to exist ‘with its extinction as a legal person internationally recognized as such.’” By declaring that the Soviet Union no longer existed at all on Dec. 8 and 17, it stood to reason that there was no longer a Soviet seat to occupy, Blum argued.
“This claim of the Russian Federation — made some three days (and possibly 16 days) after the dissolution of the Soviet Union — that it was ‘continuing’ the legal existence and hence the U.N. membership of the latter, must thus be considered — irrespective of its obvious political merits — as being seriously flawed from the legal point of view,” Blum wrote.
Alternatively, Estonian law professor Rein Mullerson in 1993 argued that Russia is legally a continuation of the Soviet Union, not a successor state. Subjective factors, such as territory, culture and recognition by outside parties led him to conclude that the Soviet Union had undergone a “separation of parts of its territory while its core — Russia — continues to exist as a continuation of the Union.” If that’s the case, Russia’s claim of the Soviet Union’s seat makes total sense.
It’s technically possible — just ask China.
But let’s say Ukraine decides to move forward with its argument and wants to actually remove the Russian Federation from its Security Council seat. It’s technically possible — just ask China. After the Communist takeover in 1949, the deposed nationalist government of the Republic of China hung onto the country’s Security Council seat for decades.
As more countries backing the People’s Republic in Beijing over the government in Taiwan joined the U.N., the U.S. used the body’s rules to ensure that any vote to recognize the People’s Republic would require two-thirds of the General Assembly to pass. It took years, but in 1971, the General Assembly passed Resolution 2758, which recognized the People's Republic of China “as the only legitimate representatives of China to the United Nations.”
Ukraine might be on the path to taking a similar tack, rallying the General Assembly’s members to either declare that Moscow can’t possess the Soviet Union’s seat and needs to reapply or pass the seat — and its veto power — on to another of the Soviet Union’s successors. But will it happen? It’s unlikely such a momentous shift in the international order would happen overnight. And even if such a change were to come in the next few days, China could still veto any set of international sanctions on Russia.
That said, it’s a fascinating can of worms that Ukraine has opened. It will be hard for Moscow to entirely shut down the whispers that it doesn’t belong on the Security Council. Also, given how much Russia cherishes that place at the table, it’s not likely they’ll be quick to forgive any country that tries to take it from them.