The airwar, Russia and the UN Charter Article 23(1)

[fdr]

SITREP
The air war in Russia, and the impact to aircraft leasing, airlines, and aircrew, civil and military arise from the naked aggression of a nuclear bully, that has recently threatened nuclear war as a consequence.

1. The USSR imploded in 1991.
2. The constituent parts of the former USSR met and produced the Alma-Ata Protocol on December 21 1991. REF: https://www.prlib.ru/en/history/619829
3. The UN Charter Article 21(1) states who are the members of the UNSC. It has never been amended. REF:
4. In 1971 the ICJ wrote a court opinion Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), the ICJ dealt with South Africa’s situation at that time. REF: https://www.icj-cij.org/public/files...V-01-00-EN.pdf
5. In the early 1970s the Assembly consistently declined to accept South Africa’s credentials. in 1974, the General Assembly President ruled that this meant that South Africa was excluded from participating in the work of the UN. Specifically, the President said that: ‘on the basis of the consistency with which the General Assembly has regularly refused to accept the credentials of the delegation of South Africa, one may legitimately infer that the General Assembly would in the same way reject the credentials of any other delegation authorised by the Government of the Republic of South Africa to represent it, which is tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work’ REF: https://www.ejiltalk.org/could-russi...nited-nations/ ;
6. "‘in using the credentials process in this way, the General Assembly effectively sidestepped the article 5 requirement that both the major political organs of the UN must be involved in a suspension decision’." REF: https://www.cambridge.org/core/books...EE063FD8464CFD
7. Supporting analysis that the 1971 ICJ opinion was correct, And that the Assembly’s exclusion of South Africa was clearly ultra vires (acting or done beyond one's legal power or authority).. came to pass. REF: https://brill.com/view/title/36421?language=en.
8. Contending views exist as well such as THE CREDENTIALS APPROACH TO REPRESENTATION QUESTIONS IN THE U.N. GENERAL ASSEMBLY, FARROKH JHABVALA, Assistant Professor of International Relations, Florida International University, Miami, Florida. REF: https://scholarlycommons.law.cwsl.ed...&context=cwilj
9. The question in law became that the Charter was not being followed, but the practice of non-compliance with the charter was an accepted variation. Russia has never been voted on to take the place of the USSR, which is a specific requirement of the charter related to joining of a nation, and thus continuation where the continuing party is not the original member.
10. Common law permits the voiding of a coerced contract. "Contract coercion occurs when a contract agreement is entered into under conditions involving harm or threats of harm. State and federal laws require contracts to be entered into “knowingly” and “willingly” by all parties. Thus, if a party signs a contract due to coercion, the contract generally will not be considered legally enforceable. The rule regarding coercion applies both to the entire contract as well as individual terms in the contract. That is, the parties must willingly agree to the contract as a whole, as well as the various terms, definitions, and requirements laid out individually in the agreement".
11. Is a country that has made explicit threats of nuclear war practicing "coercion"? If so, then any contract that they are associated with is affected. If conditions of coercion are found, the effect on the contract is usually that the entire contract is rescinded or cancelled. Contract rescission has the effect of canceling the agreement in its entirety. This will release both parties from their obligation to perform any contract duties as contained in the agreement.

So -

• Is Russia a legitimate member of the UNSC under Article 23(1)?
  • The basis of their approaching the UN as the pseudo continuing member was the agreement of Alma-Ata, 21 Dec 1991. They have acted to repudiate that Declaration, Art.1 on 14 different matters and on multiple occasions.
• Is Russia attempting coercion to any member of the UN Charter? Under Article 5, such on one country is considered to affect all Charter members...
  • ​​​​​​​Russia continues to breach the Alma-Ata Declaration from which they gained the UNSC seat.
• Does coercion/Duress finally permit the removal of Russia from the Art.23(1) UNSC seat?
  • ​​​​​​​If Russia's seat is predicated on common law, as they were a state following a dissolution, not being the continuation state, then common-law contract effects of intimidation, duress, fraud in the inducement, etc may apply.
• While we are at it... What about the Republic of China?
  • ​​​​​​​ROC was removed from its seat through denial of it's credentials. PRC took the seat. PRC is acting in a manner that is inconsistent with Art.2 and Art.4. A caution would be interesting, or an Art.108 to be prepared to get adherence with their obligations.

​​​​​​​DISCUSSION

a UNSC Member, who happens to have contested status since 1992 has threatened nuclear war on a substantial number of UN countries.

• Can a Member on the UNSC be removed? Yes.
• Can the UN Charter be Amended? Yes

The ICJ 1971 decision is binding on all Member states, (Art.108). It made a determination on South Africa's suspension. Russia has stated it is a continuation state, however, that was subject to a UNGA vote which has never been conducted. The argument for retaining the seat is that they have been there for 31 years without a vote, so under common law, there is an assumption of acceptance of the contract, the Charter provisions of Art.23. That has never been tested in the Russia case but was objected to in 1992 by Ukraine, and no further action has been taken as yet. Today, we have an aggressor nation, who acts in breach of Art.4, purely because they are protected by the provisions of Art.5. Russia holds the seat by common law, not by the Art.108 procedure of amendment of the Charter, which was never concluded. Russia is not a signatory to the Vienna Convention on Succession of States in Respect of Treaties, of August 23 1978 which sets forth the basis for succession rights of a signatory. Russia contends instead it is the continuation of the USSR, however, it has never concluded the amendment to the Charter, a vote has never been conducted, Under common law, a contract is subject to recission when Duress/Coercion/Undue Influence, or Anticipatory Repudiation occurs, amongst many other things.

Is that significant?

• On 8 Dec 1991 in Belarus, the 3 main states of the USSR met and determined to dissolve the USSR, this being known as the Belovezha Accords., that eventually resulted in an agreement ratified by the Supreme Soviet of the Russian SFSR on 12 Dec 91. It stated: "the USSR, as a subject of international law and a geopolitical reality, is ceasing its existence"
• On 21 December 1991 the Alma-Ata Protocols were signed by all but 1 of the former USSR states, Georgia abstaining. At that time there were 12 remaining USSR States, 3, the baltic states had previously succeeded from the USSR under Art.72 of the 1977 Soviet Constitution that permitted free exit of any state. On 25 Dec 91, Gorbachev resigned, and Yeltsin became the President of Russia.
• On the same day, On 25 December 1991, Russian President Yeltsin informed UN SG that the Soviet Union had been dissolved and that Russia would, as its successor state, continue the Soviet Union's membership in the United Nations.

Two problems arise over how the USSR dissolution was handled by the USSR and the 12 remaining states.
1. There was a dissolution of the member state, by the terms of the Belovezha Accord and the later Alma-Ata Protocols. There was no continuing state.
2. The Declaration of Alma-Ata gave a code of conduct for all signatories, a basis for the assumption of Russia to the UN under Art.23, contrary to the need for Russia to be a continuing state, it being a dissolution voiding all prior treaties.


The Council of Heads of State is the supreme body, on which all the member-states of the Commonwealth are represented at the level of head of state, for discussion of fundamental issues connected with coordinating the activity of the Commonwealth states in the sphere of their common interests.

The Council of Heads of State is empowered to discuss issues provided for by the Minsk Agreement on the creation of a Commonwealth of Independent States and other documents for the development of the said Agreement, including the problems of legal succession, which have arisen as a result of ending the existence of the USSR and the abolition of Union structures.

The activities of the Council of Heads of State and of the Council of Heads of Government are pursued on the basis of mutual recognition of and respect for the state sovereignty and sovereign equality of the member-states of the Agreement, their inalienable right to self-determination, the principles of equality and non-interference in internal affairs, the renunciation of the use of force and the threat of force, territorial integrity and the inviolability of existing borders, and the peaceful settlement of disputes, respect for human rights and liberties, including the rights of national minorities, conscientious fulfillment of obligations and other commonly accepted principles and norms of international law.


The basis of the tacit agreement for Russia to take the seat at the UN arose from the Alma-Ata Declaration of 21 Dec 91, and Russia has thoroughly breached material matters to the contract. Ukraine has objected to Russia's credentials, but they have never gone back to the basics of the 91 Agreement, which Russia has repudiated by their actions on multiple occasions, and with multiple signatories.

Breaches of the Alma-Ata Declaration by Russia since 25 Dec 1991 -

1. Respect for the state sovereignty and
2. sovereign equality of the member-states of the Agreement,
3. their inalienable right to self-determination,
4. the principles of equality and
5. non-interference in internal affairs, the
6. renunciation of the use of force and
7. the threat of force,
8. territorial integrity and
9. the inviolability of existing borders, and
10. the peaceful settlement of disputes,
11. respect for human rights and liberties, including
12. the rights of national minorities,
13. conscientious fulfillment of obligations and
14. other commonly accepted principles and norms of international law.

• Through the repudiation by Russia of the material terms of the Declaration, Ukraine can argue the status of Russia as the agreed to "continuation" is invalidated.
• The break up of the USSR was stated to be a dissolution, and therefore Art.23 does not apply to Russia, common law inferences notwithstanding. Refer ICJ decision, 1971,
• If Russia's seat is based on common law, then the repudiation of the contract that permitted that would affect all matters that subsequently arose, and Russia can arguably be removed from it's seat.
• Russia's breach of international law, and of the Alma-Ata Declaration, by which it gained it's Art.23 seat, notwithstanding it was never the continuance of the USSR, is able to be put into an amendment to the UN Charter, under Art.108.
• Russia's recidivist history of human rights abuses and disregard of international law by itself is open to Art.108 amendment to remove Russia from being an Art.23 Permanent member.
• On removal of Russia as an Art.23 "continuance of the USSR, the UNGA can vote for Art.5 or Art.6 sanctions.

There are a number of novel arguments there that Ukraine has not used previously, but simply, the USSR dissolved.

1. Russia was never a continuation which was required to be the case to assume a seat without a UNGA vote. No vote ever occurred. Remove them.
2. Russia assumed the seat on the back of the Alma-Ata Protocols of 21 Dec 1991. Art.1 of the protocols, at least 14 parts of that article have been breached by Russia which is arguably a repudiation of the contract by which they gained their seat on the UNSC. That is an immediate, evidentiary argument, there is no contest on that, and the ICJ can rule rapidly on that and remove Russia, from Art.23 UNSC membership, and then the UNSC can recommend Art.5 suspension or Art.6 expulsion. That is the fastest way to move, and it has never been argued. Ukraine moaned about the UNSC issues on other justifications, but they never went back to a repudiation of the contract that was entered by Russia that gave them the right, it is also arguably one of the greatest contractual frauds, and fraud in the inducement since Germany-USSR NAP of 1939.
3. If Russia argues they have their seat by common law, then the ICJ decision of 1971 voids that.
4. If the ICJ ruling which is binding, is set aside due to common law observance of Russia as a member in contravention of the continuation and tacit acceptance of their taking the seat, then under common law, Ukraine and all other signatories can argue duress, as the nuclear status of Russia was the reason that they were left unopposed.

Interesting reading:
Williams Paul R., The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force ?, 23 Denv. J. Int'l L. & Pol'y 1 (1994). https://digitalcommons.du.edu/cgi/vi...&context=djilp

In wake of Ukraine invasion, diplomats consider if Russia can be removed as one of five permanent security council members

(The Guardian, 24Feb 2022)

An effort is under way to isolate Vladimir Putin diplomatically by challenging Russia’s right to a permanent seat of the UN security council on the grounds that Russia took the seat from the defunct Soviet Union in 1991 without proper authorisation.

Diplomats are also looking to see if there is a basis for removing Russia from the presidency of the council.

The presidency rotates monthly between the 15 members of the security council, allowing the office holder to shape its monthly agenda and to chair its meetings.

The Russian envoy Vassily Nebenzias was chairing an emergency meeting of the security council in New York on Wednesday night as Putin announced his assault on Ukraine. Nebenzias started reading out a text sent to his phone by the Kremlin justifying the attack. He maintained the fiction that an invasion was not under way but instead a special military operation had begun in the Donbas.

Most council members condemned Russia, one of the five permanent security council members, with the UN secretary general António Guterres taking the rare step of accusing Russia of being in breach of the UN charter.

A draft security council motion, condemning Russia and calling for its unconditional withdrawal, is being negotiated behind the scenes in New York and will probably be debated on Friday, but Russia as a permanent member will use its veto.

The Ukrainian ambassador to the UN, Sergiy Kyslytsya, told Wednesday night’s meeting that article 4 of the UN charter says the UN is open only to peace-loving states that accept the terms of the charter. He said Russia’s actions showed it could not comply with those terms.

But he also asked Guterres to distribute to the security council the legal memos written by UN legal counsel dated 19 December 1991 that the Russian Federation be permitted to join the security council as the successor to the Soviet Union. Ukraine claims the constituent republics of the USSR declared in 1991 that the Soviet Union ceased to exist, and with it should have gone the legal right of any of those entities, including Russia, to sit on the council.

No decision to permit Russia to the security council was ever put to the General Assembly. The UN charter was never amended after the USSR broke up. It still references the Soviet Union, and not Russia, as one of the permanent members of the UN security council.

By contrast in 1991 China’s entry into the UN was subject to a resolution. A member of the United Nations which has persistently violated the principles contained in the present charter may be expelled from the Organization by the General Assembly upon the recommendation of the security council.

The Russians claim its actions were taken in line with clause 51 of the charter citing self-defence.

The tension between Ukraine and Russia at the Wednesday meeting boiled over at the UN when Kyslytsya at the close of the session looked at his Russian counterpart and said “there is no purgatory for war criminals”, adding “they go straight to hell, Ambassador.”

Guterres in a brief televised statement on Thursday said the “Russian military operation is wrong, is against the charter and unacceptable”. He again appealed to Putin to stop the operation and bring the troops back to Russia.

The Russian diplomatic delegation is working hard to maintain the protection of China, which has been reluctant to abandon Russia, and would never support a motion for expulsion.

But US officials said, “Russia’s aggressive actions here carry risks for China along with everyone else. It’s not in China’s interest to endorse a devastating conflict in Europe and defy the principles of sovereignty and territorial integrity it claims to hold dear.”