With a Russian invasion looming, the Ukrainian ambassador sat across from his Russian counterpart, his first chance to unload the frustrations and anxieties of a nation directly to its aggressor. He opened not with a complaint about shelling or a defense of sovereignty but with a request that the United Nations release the legal memos from 1991 that permitted Russia to take over the Soviet Union’s old seat at the Security Council.
The apparently obscure reference, made even more arcane by the fact that everyone knows there are no memos, may have seemed to many observers an odd choice given the stakes of the moment, but it opened a diplomatic front in the war between Russia and Ukraine that may have some sting.
Article 23 of the U.N. Charter lists the members of the Security Council. It says that France, the United Kingdom, the United States, the Soviet Union and the Republic of China are its five permanent members. Two of the five are problematic. The Republic of China is the name of the government of Taiwan, a distinct entity from the People’s Republic of China, which has operated in the council since 1971. The Soviet Union dissolved in December 1991 and its territory and people broke into 15 “new” countries.
Russia sits in the Soviet seat because it claimed to be the sole legal successor state to the Soviet Union, taking over all the old country’s obligations, debts and privileges. It notified the U.N. secretary-general in a letter on Dec. 24, 1991. The U.N. appears to have done nothing to investigate, corroborate or think through its implications; it simply acquiesced.
That’s why the Ukrainian remark was cutting — there are no memos because no work was done. Other post-Soviet countries claimed to be either new states or reconstitutions of old ones that had been forcibly folded into the USSR. Some, including Armenia, applied and were admitted as new members. Ukraine was a founding member of the United Nations despite being part of the USSR, admitted along with the other founders in 1945 as a result of a deal between Stalin, Roosevelt and Churchill in 1945.
For the Russian government, its presence in the council is an unproblematic fact. It has enjoyed the privileges of permanent membership including the veto and few have objected. The U.N. didn’t object in 1991 and hasn’t since, and the inertial pressures of 20 years of getting on with things has helped Russia cement its position. Two decades of practice has helped produce the fiction that Russia is a Security Council permanent member.
But the Ukrainian remark hints at the trouble behind the scenes. On one hand, the laws of succession for states, when a country dissolves and its place is taken by another, leave lots of leeway for judgment and informal negotiation. The matter is usually complicated as the U.N. and others figure out who should be treated how.
Slovakia and the Czech Republic were treated as new countries when they split in 1993, neither being a successor for Czechoslovakia, and the U.N. rejected the claim by Serbia and Montenegro to be the joint successor to Yugoslavia. The U.N. apparently used no process at all to consider the implications of accepting Russia’s claim.
On the other hand, there is the simple fact that Russia is not listed among the Security Council’s members. The U.N.’s diplomats are used to pretending that it is, but every reader of the U.N. Charter can see that it isn’t. Lawyers are supposed to pay attention to the actual text of a document — they aren’t supposed to squint so hard that they start seeing words that aren’t there. Any open-eyed reading of the charter makes it clear that Russia is not a permanent member of the Security Council.
If Russia had been considered a new state in 1991 instead of the successor to the Soviet Union, it would have been required to apply for membership at the U.N., and its chair in the Security Council would have been up for discussion. These were both thought by Russia to involve unacceptable costs and the U.S., the U.N. and others caved.
The Ukrainian ambassador added one last twist on Wednesday. He pointed out that U.N. membership is open only to “peace-loving nations.” This qualifier doesn’t apply to founding members (such as the Soviet Union) but does apply to every country that aspires to join thereafter. Russia has shown in the past weeks that it is governed by a government that is far from peace-loving. It is worth asking if it is time to stop squinting at the charter and read the words as they actually appear.
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ABOUT THE WRITER
Ian Hurd is a professor of political science and director of the Weinberg College Center for International and Area Studies at Northwestern University. His latest book, “How to Do Things With International Law,” examines the ideology of the rule of law in international affairs.
