In recent days, all attention has been focused on the quick counteroffensive of the Armed Forces of Ukraine, which resulted in a stunningly quick collapse of the front of the invaders. ARC will not attempt to forecast its specific outcomes, as we are not military analysts. We merely observe that Ukraine’s success in this battle is becoming nearer and, along with this, the tribunal over the aggressors [1] [2] is taking shape.

Ukraine has long advocated for Russia’s exclusion from the permanent membership of the United Nations Security Council. Recently, another permanent member of the Security Council – the United States –officially claimed that Russia is a root-cause of the present UN crisis. Therefore, the exclusion of Russia from the primary international organization tasked with preserving world peace and order is no longer viewed as theoretical nonsense.

In this paper, we will attempt to determine to what degree Russia’s removal from the United Nations Security Council is real and what effects it may have; this issue was researched by ARC’s expert Oleksiy Plotnikov, PhD in International Judiciary
What is the UN Security Council?

The UN Security Council is one of the main bodies of the UN, which, according to Article 39 of the UN Charter, “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” [3]. The Security Council is responsible for achieving the main goal of the UN, established by the first article of its Charter – maintaining international peace and security, preventing threats to peace and suppressing acts of aggression.

The Security Council, at least in theory, should have the strength and determination to, as stated in the Preamble to the UN Charter, “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” As we can see, however, the Security Council was not up to the task. The United Nations was founded by the winning nations of the Second World War, who fashioned the organization with their own interests in mind. This was reflected in the establishment of the Security Council, which became less of a peacekeeper and more of a vehicle for making some states slightly more equal than others. In reality, the Council was incapable of responding to threats to world peace emerging from the permanent members of the Security Council, who, at the same time, emerged as the world’s most powerful nations.

The Long-Discussed Security Council Reform
Reforming the United Nations Security Council has been discussed at least since the early 1990s. The Security Council’s current structure was established as a result of the Second World War. At the time, there were 51 states in the globe, and the five most powerful ones were granted permanent seats on the Security Council. Now that the number of governments in the world has tripled and the Cold War has ended, the distribution of Security Council seats does not represent the world’s true economic and military balance. [4] In 1993, the General Assembly passed a resolution establishing a Working Group on equitable representation and extension of Security Council membership. However, despite the Group’s repeated proposals over nearly three decades, no real steps have been taken to reform the Security Council [5].

The world’s political realities have changed so drastically over time that the conventional method to changing the Security Council, by merely increasing the number of members and balancing their representation, is unlikely to be successful. Thus, a novel strategy is required. Unfortunately, the new reform proved impossible without a new major battle, this time in Ukraine.

First and foremost, the idea of reforming the Security Council through a mere enlargement of representation is flawed because it does not address the primary issue, which is the abuse of the veto power. Increasing the number of nonpermanent Council members would have no effect on this issue. Increasing the number of permanent members will only encourage more nations to abuse their veto power. Therefore, one should begin with the reform of the veto rather than the reform of representation, which is, of course, equally required.

Reform of the veto power has been considered for a long time [6], but it remains a theory for an apparent reason: “old” members of the Security Council are unenthusiastic about the possibility of diminishing their primary instrument of influence. However, one of the permanent members, Russia, increasingly resembles an emperor wearing “new clothes” who has neither the legal nor moral authority to determine the problem of war and peace, since the Ukrainian counteroffensive deprives Moscow of its final argument – the right of force. A window of opportunity has just opened, which another member of the Security Council, the United States, is using to raise the issue of altering the veto power in the United Nations [7].

What does the USA offer?
The US proposal for reform was expressed in the form of a speech by Linda Thomas-Greenfield, the US envoy to the UN. This speech can be reduced to several theses.

First, being a permanent member of the Security Council is a responsibility, not an instrument of domination. By starting an aggressive war, committing unimaginable violations of human rights, and using the special rights of a member of the Security Council to avoid responsibility, Russia is violating the most fundamental principles of the UN, which creates a crisis of confidence in the organization as a whole. The answer to this crisis must be given by all member states, because it is not about a conflict between Russia and Ukraine, or between Russia and the USA, but about the existence of the UN itself.
Secondly, Greenfield proposed six principles, recognizing that the United States itself has not always followed them in the past, but is committed to following them in the future:

– act in strict compliance with the UN Charter;
– pragmatic interaction between the members of the Security Council on all issues on which an agreement is possible;
– refusal of members of the Security Council from exercising the veto power, except in rare emergency cases. Each member of the Security Council that uses the veto power to shield its own aggression must be held accountable, here, she emphasized that since 2009, the Russian Federation has used the veto 26 times, China – 12, and the USA – only four;
– the priority of the protection of human rights and fundamental freedoms in the activities of the Security Council, here Thomas-Greenfield reminded about the gross violations of human rights by China;
– inclusive and transparent interaction with other UN bodies and regional groups;
– reforming the UN Security Council.

As part of the reforms, the representative of the USA proposed to oblige the members of the Security Council to explain the reasons for the use of the veto before the General Assembly.
Thirdly, Thomas-Greenfield made a rather transparent hint about the leverage that the US can use to push the UN bodies to reform. She noted that in 2020, the United States allocated 11.6 billion dollars to support the UN system, while China allocated 2 billion, and the Russian Federation – only half a billion.
Finally, the US envoy emphasized that UN members must act in accordance with a common vision of the future, overcome the challenges created by the coronavirus pandemic and the global inequalities. According to the envoy, the response to the violations committed by Russia should be based on the outlined principles, and these violations should not endanger the goals of the UN [8].

As can be seen, the United States’ proposals revolve on the limiting of veto abuse by permanent members of the Security Council, and the United States is willing to be the first to assume the accompanying commitments. Thomas-Greenfield did not propose anything that would call into question the equality of Council of Security members and their powers. Nonetheless, even such minimal plans were sufficient for the Kremlin to issue indignant declarations about “zoological anti-Russian frenzy” [9] and threats that the United Nations would perish like the League of Nations. The only thing that can be said about this is that the League of Nations’ demise was due to its inability to stop the aggressor, and if the United Nations does not want to repeat its predecessor’s fate, it must first address the violation of its fundamental principles, as stated by the American envoy.
What is Ukraine’s position?

Although it would seem that in matters of Security Council reform it would be natural for many states to follow the path of the US as a permanent member of the Council, Ukraine has its own position that such a state as the Russian Federation should not be in the UN Security Council at all. In this, Ukraine relies on the dubiousness of the Russian Federation’s membership from the very beginning.

Indeed, the UN Charter states that the UN Security Council has five permanent members – the Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom and the United States of America. If you read the Charter literally, it turns out that instead of the People’s Republic of China (mainland China), the Security Council should have the Republic of China (Taiwan), and there is no such entity as “Russia” there at all.

RF actually inherited the seat of the USSR in the UN Security Council according to an extremely dubious procedure. Ukraine officially announced this through its representative at the UN, Serhiy Kyslytsya. The logic of the Ukrainian statement is as follows. Ukraine has been a member of the UN since 1945. It was the Ukrainian Soviet Socialist Republic, which signed the UN Charter among the 51 founding members. the Russian Federation as a state never signed the UN Charter and never joined the UN according to the established procedure. In particular, it was not among the 51 founding members.

At the time of the collapse of the USSR, Russia simply appropriated the place of the Union by default. At the same time, the interests of other states that are also legal successors of the USSR, including Ukraine, were not taken into account. At that moment, it was much more important for the world to ensure peace and stability in the ruins of the empire, as well as control over nuclear weapons. Yes, Russia became the only state in the world that bypassed the established procedure for joining the UN and simply took someone else’s place. It follows from this that Russia cannot be a permanent member of the UN Security Council, because it is impossible to join one of the main bodies of the organization without being a member of the organization at all [9].

On the basis of these arguments, Ukraine does not even demand the exclusion of the Russian Federation from the Security Council, but the simple recognition of the fact that such a state as the “Russian Federation” is not a member of the UN.

The practical importance of removal of the aggressor from the UN SC
Why is it so crucial that the Security Council membership of the aggressor be terminated upon the Ukraine’s victory? Shouldn’t victory on the battlefield suffice? There are at least three grounds in favor of the imperative necessity of Russia’s absence from the Security Council, from a simply pragmatic standpoint.

First, when Crimea was occupied in 2014, what prevented the United Nations from reacting to the blatant and obvious breach of its own principles? Even then, the illegality of Russia’s conduct was evident, and it is not for nothing that 100 states supported Ukraine at the UN General Assembly and just 11 supported Russia, including international pariahs such as North Korea, Eritrea, the Assad and Lukashenko regimes [9].

Certain United Nations authorities, notably the Human Rights Council, have frequently criticized enormous and egregious breaches in occupied Crimea and Donbas. The UN was aware of the violations, but its primary mechanism, which was designed to stop them by whatever means necessary, including authorizing the use of armed force, was blocked. The expulsion of the aggressor from the Security Council will enable the United Nations to promote the de-occupation of Ukrainian territories much more aggressively, up to and including the dispatch of armed contingents, which will greatly facilitate the de-occupation process and reduce Ukrainian casualties.

Second, one should not overlook the Ukrainian complaints filed against the aggressor before the International Court of Justice of the United Nations. The first relates to racial discrimination against Crimean Tatars and occupied Ukrainians, as well as violations of the prohibition on financing terrorism. There are adequate grounds to believe that the International Court of Justice will side with Ukraine in this issue, but Russia’s veto could prevent its implementation in the Security Council. Therefore, it will be much simpler for the Ukraine to get compensation from the aggressor via the International Court of Justice if the aggressor does not influence the process of implementing decisions through the United Nations Security Council.

The end of this conflict will not occur until the international criminals responsible for its outbreak are brought to justice. The application of international criminal justice processes to the highest political and military leadership of the Russian Federation is complicated by the country’s refusal to accept such bodies’ jurisdiction. The Security Council instead has the authority to submit any matter to the International Criminal Court. It is empowered to establish international criminal tribunals, as was done in Rwanda and Yugoslavia. Therefore, individuals responsible of aggression against Ukraine, war crimes committed during the conflict, and crimes against humanity committed in the occupied areas of Crimea and Donbas can be effectively punished through the UN Security Council without Russia.
Will the Russian Federation be expelled from the UN?

From a purely legal point of view, the Ukrainian position seems justified. There are various mechanisms for excluding a state from the United Nations. The method is outlined in the United Nations Charter and includes votes in the Security Council and General Assembly. It is also possible to request an advisory opinion regarding the validity of Russia’s membership in the organization from the International Court of Justice of the United Nations. The issue at hand is not one of legal possibility, but of political will.
Present conditions appear conducive for expressions of such a desire. The defeat of the aggressor in Ukraine, the active backing of the Security Council reform by the United Governments and, most likely, Great Britain, and the desire of some states to increase their representation create the conditions for a swift overhaul of the Security Council. This reform will depend more on political agreements than on the law, thus we will refrain from making specific forecasts.

Will the right of veto be limited first, and then the Security Council will vote to exclude the Russian Federation, or will the Security Council initially not permit the Russian Federation to attend its meetings as impostors, will the International Court of the United Nations be involved, and what will be the conditions for the support of the reform by some states – we will leave this to the diplomats. We can only conclude that the legal options for reforming the Security Council and expelling Russia from the United Nations are abundant.

Finally, let’s recall the words of the second Secretary General of the UN, Dag Hammarskjöld: “The UN is not a product of do-gooders. It is harshly real. The day will come when people will clearly see what the UN stands for. Everything will be fine, do you know when? When people, just people, stop thinking about the United Nations as a crazy Picasso abstraction, and see that this is a picture they made themselves” [10].