9.15.2015

Russia's Secret Weapon: its Veto Power at the United Nations. But is it Legal?

Pro-Russian protesters in Donetsk 9 March 2014 (source here)
Russia has been flexing its military muscle, annexing Crimea, provoking war in Eastern Ukraine, and, more generally, threatening Europe through its dominant position as a major source of Europe's energy supplies. Putin is beginning to look like a new Hitler.

And there is another Russian weapon that many underestimate:

Russia uses with deadly effectiveness its veto power at the United Nations.

In fact, when Russia exercises its veto power at the Security Council paralyzing any move by the international community to address  dramatic situations such as that of Syria, the news makes no waves, it doesn't rattle anybody.

It's considered standard fare and can be safely dismissed. The UN doesn't matter, that's not where the international power game is played. Right?

Wrong.

The UN matters, it's the only international forum we have, there is no other.  And if the UN were allowed to act on behalf of international justice, the power game would change.

The Syrian refugee wave hits Europe, article by Ben Shapiro ( here)
To convince yourself of the impact of Russia's veto power, look at the migrant crisis in Europe. The continent is overrun by hundreds of thousands of refugees -  that's the term I prefer to use: "migrants" is too generic and covers "economic immigrants" that are in fact a minority and not a threat; they usually come equipped with skills or university degrees. And Germany, Europe's power house, is the preferred destination.

Note that most of these people come from Syria - small wonder, some 4 million Syrians have been displaced by the war.

By using its veto power, Russia has ensured that war in Syria festers on, unimpeded - causing people to flee. 

Russia has successfully prevented for years other concerned nations - notably the "Western" three of the "Permanent Five", the US, UK and France, to take action and restore peace in Syria.

And thus root out the cause of the "migrant crisis" in Europe.

Is there a way to stop Russia ?

What if it were illegal for Russia to use its veto power? 

Russia is entitled to it because it is considered the successor of the Soviet Union. And we all know that the USSR - the Union of Socialist Soviet Republics (anyone remembers that's what it was?) - was one of the "Permanent Five" at the United Nations, i.e. the five countries who won World War II, the US, France, the UK, China and the USSR.

It sounds crazy, but an argument can be made that this should not be legally so. 

Russia is not the Soviet Union's successor. Russia today is a Federation - no longer a Union of Republics.

When the Soviet Union collapsed in 1991, that very question was raised. And raised by serious and respected international lawyers. The debate was really part of the broader debate concerning UN reform, an issue that has pestered the United Nations since its foundation - no doubt because it was created with a serious flaw, the famous five permanent seats with veto power on the Security Council.

A flaw that if it is not corrected could threaten the UN's very survival.

Here are the facts.

On 24 December 1991,  the Soviet Ambassador Y. Vorontsov, Permanent Representative of the USSR to the United Nations, transmitted to the Secretary-General of the United Nations a letter from the President of the Russian Federation, Boris N. Yeltsin, stating 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. In this connection, I request that the name ‘Russian Federation’ should be used in the United Nations in place of the name ‘the Union of Soviet Socialist Republics’. The Russian Federation maintains full responsibility for all the rights and obligations of the USSR under the Charter of the United Nations, including the financial obligations. 

Incredibly, that letter went  out 24 hours before Soviet President Gorbachev resigned. When that letter went out, the Soviet Union still existed, it had a president.

In fact, the disintegration of the Soviet Union in the fall of 1991 was remarkably swift. It took about 4 months.

On 6 September 1991, the three Baltic republics (Lithuania, Latvia and Estonia) became independent from the Soviet Union and on 17 September, they were admitted to the United Nations.

The remaining 12 republics, having all proclaimed their independence that fall, declared that the Soviet Union had "ceased to exist"  in a meeting at Alma Ata on 21 December 1991. Eleven of them (with Georgia attending as an observer)  agreed to set up a Commonwealth of Independent States and to support Russia in taking over the USSR membership in the UN. Presumably they figured that Russia would help them get admission to the UN.

By July 1992, all 11 republics had been admitted as new states to the United Nations.  Note that Ukraine and Belarus were already UN members before all this happened, and the dissolution of the Soviet Union did not affect their UN status.

The UN Secretary General circulated the Russian request for a name change to all the members and nobody objected. There never was a vote at the UN General Assembly - in short, the usual procedure for admission was never followed. And nowhere in the UN Charter is there a clause for silent consent.

By January 1992, Russia had fully inherited the Soviet Union's seat and veto privilege at the United Nations.

Question settled? No.

Prof. Yehuda Z. Blum, noted international lawyer with a chair at the Hebrew University in Jerusalem, wrote in 1992 an oft-quoted article (52 times!), arguing that there was no problem as long as the identity and continuity between the Soviet Union and the Russian Federation could be established.

A lot of people at the time felt that Russia "deserved" the Soviet seat: of the 15 ex-Soviet republics, it was the largest, with 150 million people and some 75% of the resources of the Soviet Union. Russia had supporters in America, among them  Prof Richard N. Gardner of Columbia University who wrote about this for the New York Times (on 19 December, two days before the Alma Ata meeting when the Soviet Union still existed - one is entitled to wonder whether it was read by Russian diplomats and what they made of it).

Yet, Russia, compared to the Soviet Union, was considerably less than the whole and World War II was won with the help of all 15 republics, not just Russia. So it was legitimate to question whether it had a right to the Soviet seat at the Security Council.

More important, from a legal point of view, the Soviet Union had "ceased to exist" since that is precisely what had been declared in Alma Ata on that fateful 21 December by all the republics that once composed it - indeed, that very declaration formed the basis for their own claim to independence.

If the Soviet Union had ceased to exist, there was no UN seat to inherit.

Therefore, the situation was very different to what had happened, for example, when India had broken down into two countries. Not only did India continue to exist - but it continued as the original UN member and Pakistan, upon becoming a new state, had to apply for membership.

The Russian case is also very different from what happened to China. Mainland China displaced China/Taiwan at the UN not with a letter to the Secretary General but with a resolution adopted by the UN General Assembly, resolution 2758 passed on 25 October 1971 with a two-thirds vote referring to Article 18 of the UN Charter. Here is the text: 

While the Resolution solved China's problem of representation at the UN, it left Taiwan in the lurch - with a government that still claims today to be the legitimate heir to the Republic of China, and therefore unjustly "expelled" from the UN.

As Prof. Blum wrote in his famous article:
with the demise of the Soviet Union itself, its membership in the UN should have automatically lapsed and Russia should have been admitted to membership in the same way as the other newly-independent republics (except for Belarus and Ukraine). 
Yes, Belarus and Ukraine were UN members before all this happened. But if the UN had placed Russia on a par with the other republics of the ex-Soviet Union, then its claim to a permanent seat on the Security Council and veto power would have lapsed - immediately causing a constitutional crisis at the UN itself.

Why?

Because  the UN Charter, Article 23 (1) explicitly states the the Security Council should be constituted by 5 permanent members and 10 non-permanent.

As Prof. Blum suggests, "it is reasonable to assume that considerations of this nature played a major role in prompting the Secretary-General and the UN membership to accede to Russia’s claim – however flawed legally – to be the ‘continuation’ of the Soviet Union."

It would seem that a historic opportunity to reduce the number of permanent members was missed - this kind of "constitutional crisis" could have helped to weaken the concept of permanent members with veto power. 

So, at this point in time, some 25 years after Russia grabbed the Soviet Union's permanent seat at the Security Council, can anything be done to "right" this wrong - and at the same time dent the veto power of the five permanent members?

Because the veto power offends our sense of international justice. And when one of the five exercises its veto power, it is not even required to explain it. It just says "no" and that's it. World peace is held hostage to the whims of a Putin. Russia claims that its veto power is key for "holding the balance" of power (!). It only appears to be key to defend its own nationalistic interests - as is, in fact, the case with all the other permanent members, the USA included.

France seems to be the only one ready to acknowledge that the veto power should never be exercised in a humanitarian emergency, i.e. to defend "mass atrocities".

Support can also be expected from the current US Ambassador Samantha Power, author of a remarkable account of the Rwanda genocide, the Pulitzer prize-winning book " A Problem from Hell: America and the Age of Genocide". Known as a "firebrand humanitarian", she hasn't so far changed anything to the usual Security Council power game, though she has strongly condemned Russia (see here). But no doubt she is also finding the limits of her role where serving US interests beats any humanitarian consideration (see here and here).

There is a movement of "small countries" headed by Switzerland called the ACT asking for improvement in the Security Council's methods of work including more transparency.

Unfortunately this is a low-profile game played among delegates. It  rarely hits the news and has few outsiders watching it. The Global Policy Forum does an excellent job of keeping tabs on what is happening  but more would be needed.

Street protests when the UN Security Council meets and particularly when an unconscionable veto is pronounced would no doubt help to signal that people like you and me want justice. But it's not enough and not likely to lead to any concrete results. And no doubt naive. The fact is that UN delegates hide in their glass palaces and respond only to their own governments, not to people in the street.

Something else needs to be done.

The delegates themselves should take the matter in their hands.

They should object: why ever should Russia be the successor of the Soviet Union? The question of the legality of Russia's representation at the UN should be raised again, it really has never been solved.  And it could be raised by countries from the ex-Soviet Union and all their "friends". Eastern Europeans and Central Asians have many friends in different parts of the world. I am quite sure Georgia, Armenia and Ukraine would be happy to question the legality of Russia's seat at the Security Council. Surely a two-thirds majority at the General Assembly (as required by Article 18 of the UN Charter) could be mustered to force Russia out of its permanent seat at the Security Council?

It is a question of phrasing the resolution in such a way that Russia is shown to be in an illegal situation. That is the work of professional diplomats, it shouldn't be too hard to do.

My thanks go to Giuseppe Bonanno di Linguaglossa for drawing my attention to this question. If you can read Italian, I urge you to visit his blog where he presents more on this matter, click here.


For those interested in reading more, check out :

Russian Federation at the UNhttp://www.un.org/depts/dhl/unms/russianfederation.shtml

Analysis by Prof. Yehuda Z. Blum, Hebrew University, Jerusalem: Russia Takes Over the Soviet Union's Seat at the United Nations

Article 23 of the UN Charter: http://www.un.org/en/documents/charter/chapter5.shtml

Article 18 of the UN Charter:
https://en.wikipedia.org/wiki/Chapter_IV_of_the_United_Nations_Charter#Article_18

Russia's position on the veto (March 1999):
https://www.globalpolicy.org/component/content/article/198/32893.html

Global Policy Forum on the UN reform question:  https://www.globalpolicy.org/un-reform.html
For a list of key documents: https://www.globalpolicy.org/un-reform/general-analysis-un-reform.html
In particular, the 2008 proposal, article by Rodrigue Tremblay, U. of Montreal
                       the 2013 proposal, article by Volker Lehmann, Senior Policy Analyst with FES

Wikipedia's entry (controversial): https://en.wikipedia.org/wiki/Russia_and_the_United_Nations
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