At the UN Security Council Russia, represented by Mr. Churkin, while keeping a self-important air, in fact taunts Ukraine, blocking all important decisions by using the right of veto (for example, after the annexation of Crimea). The discussion on launching a peacekeeping operation in Ukraine will be obstructed in the similar fashion. It is not possible to exclude Russia from participation in the discussion and voting on Ukrainian issues on the ground of being a transgressor in the conflict, and Russia cannot be expelled from the Security Council – the UN Charter will not allow it. But there is one judicial mechanism that Ukraine can use to negate Russia’s veto power.
In 1991 Russia declared itself a successor-state of the USSR, and took its place in the UN Security Council. But, legally speaking, all former Soviet republics which are now independent states could be regarded as the USSR’s successor-states.
The difference between the succession and continuation is that in the first case occurs a transfer of rights and obligations from one state to another state. In the second case – we are talking about the state which changed, for example, its name, some borders, political system, but at the same time retained its identity.
Take Ukraine as the case. Ukraine exists as a state since the year of 1917. It changed the name: used to be Ukrainian Soviet Republic, now Ukraine. In the course of time its constitution, political order, some borders changed. But the core identity remained intact.
In Russia’s case the opposite is true. USSR and Russia are two different subjects of international law. In 1991 the USSR had ceased to exist. This is why logically and legally Russia cannot be a ‘continuation’ of the state that ceased to exist as a geopolitical entity. By taking place of the USSR in the UN Security Council Russia grossly violated the UN Charter. If one will read the relevant documents, only USSR is referenced there, and not a word about Russia.
According to the UN Charter, Russia should have appealed to the UN General Assembly and Security Council to start the membership application from scratch. For example, Serbia was forced to take this path after the disintegration of Yugoslavia. Even though Serbia was a part of the Federation of Soviet Republics of Yugoslavia (FSRY), no one took it for the whole FSRY. It did not happen in the case of Russia.
In 1991 the Commonwealth of Independent States (CIS) – an aggregate of former Soviet Republics – approved the resolution to support Russia’s bid to take over the USSR’s membership in the UN, including the membership in the Security Council and other international organizations. Then Yeltsyn simply sent the UN a notification that ‘we are just, you know, taking the USSR’s place’. No one protested (this is a separate question – why), and this can be the only justification for Russia’s objections, should its membership in the UN be declared unlawful.
There is a legal subtlety that annuls the validity of the above mentioned CIS resolution. An agreement of CIS heads of states is a political decision, not an international treaty. It must not contradict the UN Charter (article 103), and cannot be regarded as a legal ground for Russia’s membership in the UN.
Some Russian authors also concede that the CIS decision was a political one, but argue that at the time that was an only possible solution, that someone had to take over the USSR’s responsibilities etc. But those are not legal arguments. The UN Charter was violated, and this is the most important consideration.
This is why now Ukraine can and should rescind its decision to support Russian membership in the UN as the successor of the USSR, and the situation should return to the ‘status quo ante’. E.g. the question on who should take the place of the USSR in the United Nation should be re-opened. This, by the way, should also open path to the Security Council’s reform.
In short, if our diplomats will show the willpower, decisiveness, methodical approach, and see this matter to its end, we will be able to restore the international rule of law, and kick out the aggressor from the UN. It will give a huge relief to the other nations, who are also harassed by this impostor.
