Appeal from the Ukrainian Association of International Law

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The Ukrainian Association of International Law has issued an analysis of recent events in the Ukrainian. An English translation of this analysis and appeal is included below. I am told that the original can be found here. The Association argues that Russia’s decision to move military forces into Ukraine is not only a violation of the UN Charter and general international law, but also of the bilateral treaty permitting Russia to retain the Black Sea Fleet in Ukraine, and also of the security assurances given in the Budapest Memorandum of 1994 by Russia (and also by the US, the UK, France and China). Much of the analysis contained in the Appeal by the Association is undoubtedly correct.

The Association rejects Russian claims that it is acting to protect rights of the Russian population in Ukraine. However, it is surprising to read that “[the Association] would like to stress that no duly authorized national, foreign or international institution has declared any violation of human rights on the territory of Ukraine, or specifically in the Autonomous Republic of Crimea, which would have required the intervention of any subject of international law or the international community.” Is this to say that it would have been lawful for Russia to intervene had there been such a declaration of violation of human rights?

“An Appeal from the Ukrainian Association of International Law to the people of Ukraine, the Russian Federation and the fraternal people of the neighboring States with whom we share close family ties and historical connections, as well as the international community as a whole:

On 1 March 2014 at 17.21 (Kyiv time), the Council of the Federation of the Federal Assembly of the Russian Federation (the Council of the Federation) unanimously supported the appeal of the President of the Russian Federation, Mr. Vladimir Putin, on sending a “limited contingent of military troops” of the armed forces of the Russian Federation into the territory of Ukraine.

This decision was taken in breach of the United Nations Charter, the Declaration of Principles of International Law of 1970, the Helsinki Final Act of the Conference on Security and Cooperation in Europe of 1975, the Agreement of Friendship and Cooperation between the Russian Federation and Ukraine of 1997, and multiple other international treaties. At the same time, the refusal of the Russian Federation to conduct preliminary consultations with Ukraine and the guarantor States of its territorial integrity (United Kingdom, United States, France and China) reveals a blatant disregard for its obligations under international law as secured in the Budapest Memorandum of 1994.

While making a decision to bring armed forces into the territory of an independent sovereign State and one of the founders of the United Nations, the Council of the Federation distorted the meaning of international law norms relating to the protection of the rights and legitimate interests of citizens located outside the territory of their State and where a military intervention by their nationality State is justified. In accordance with the Constitution of Ukraine and relevant norms of international law, the Autonomous Republic of Crimea is an integral part of Ukraine and one of the administrative-territorial units of Ukraine. We would like to stress that no duly authorized national, foreign or international institution has declared any violation of human rights on the territory of Ukraine, or specifically in the Autonomous Republic of Crimea, which would have required the intervention of any subject of international law or the international community. Thus, the appeal by the self-proclaimed heads of one of the administrative units of Ukraine – the Autonomous Republic of Crimea to the Russian Government requesting military help is unlawful, and any decisions taken based upon it are void.

In light also of the principle of good faith in the interpretation of treaties, we claim a material breach of the Agreement between Russia and Ukraine on the Status and Conditions of the Presence of the Russian Black Sea Fleet on the Territory of Ukraine signed on the 8th of August 1997 (the force of which was extended in April 2010), in particular, Article 6, paragraph 1 of the Agreement stating that military forces of the BSF of the Russian Federation “operate in areas of stationing in strict accordance with the national legislation of the Russian Federation in respect to the sovereignty of Ukraine, observing its laws and refraining from interference in the internal affairs of Ukraine”. Article 8, paragraph 2, under which military forces of the Russian BSF may “carry out military exercises and other training operations within the educational centres, landfills, position and dispersal areas, shooting ranges and, except for prohibited areas, in the designated airspace areas with the concurrence of the competent authorities of Ukraine”, has also been breached. According to the information we possess, no such agreement with the competent authorities of Ukraine has been reached by the relevant authorities of the Russian Federation. However, Russian troops – which confirmed their own citizenship to the media – have left their adopted position in violation of the Agreement.

Therefore, members of the Ukrainian Association of International Law regard the actions of the Russian Federation as an act of aggression and consider it to be a crime under international law. We call to your attention that under international law, any State which has violated peremptory rules of general international law incurs international responsibility. Moreover, those persons responsible for committing a crime of aggression can incur individual criminal responsibility under international law.

The neglect of fundamental principles of international law by the Russian Federation will inevitably lead to significant political, economic and military setbacks in our globalized world, as well as to the disruption of the situation both in Eastern Europe and within the Russian Federation. The Russian Federation is invoking the imaginary breach of collective rights of communities in Ukraine and the region as an excuse for military aggression. This approach is very likely to be applied in further cases of military intrusion in the internal affairs of other States of the multinational Russian Federation. This scenario can also be exploited by other States for intervention into Russia’s own affairs and support for separatist movements within its component regions.

Therefore, the actions of the Russian Federation provide legal grounds for Ukraine to have recourse to its inherent right to individual or collective self-defense, as set out in Article 51 of the UN Charter. It seems reasonable for the Ukrainian government to urgently hold consultations with States that could stand by Ukraine’s side in order to balance out the external aggression. Taking into account the numerous violations of multilateral and bilateral treaties by the Russian Federation, Ukraine is also entitled to provisionally cease the fulfillment of any of its obligations under bipartite treaties with Russia, including the agreement on temporarily basing the Black Sea Fleet of the Russian Federation on the territory of Ukraine.

The policy of the Russian Federation towards Ukraine is undermining the international legal framework, along with their bilateral relationship. It threatens the overall system of international law that has to be protected by international lawyers worldwide.

International law has always been and shall remain a tool and a forum for the peaceful settlement of disputes between States. Any kind of intervention by one State in another’s internal affairs is unacceptable and must be condemned by the global community.

 the President’s Council of the Ukrainian Association of International Law

 Signed by:

Head of the Presidential Council of Ukrainian Association of International Law, Professor, corresponding member of the Ukrainian Academy of Law A. ZADOROZHNY

Doctor of Law, Professor M. BAIMURATOV

Doctor of Law, Professor I. BILAS

Doctor of Law, Professor A. BIRIUKOV

Doctor of Law, professor, corresponding member of the Academy of Law of Ukraine M. BUROMENSKY

Judge of ECHR (retired), Doctor of Law, Professor V. BUTKEVYCH

Doctor of Law, Associate Professor O. BUTKEVYCH

Doctor of Law, Professor V. VASYLENKO

Doctor of Law, Professor G. DINIS

2nd Vice-President of CPT, PhD in Law, Associate Professor M. GNATOVSKY

Doctor of Law, Professor, corresponding member of the Academy of Law of Ukraine A. DOVHERT

Doctor of Law, Professor V. KYSIL

Doctor of Law, Associate Professor S. KOZJAKOV

Doctor of Law, Associate Professor D. KULEBA

Doctor of Law, Associate Professor M. MEDVEDEVA

Doctor of Law, Professor V. MYTSYK

Doctor of Law, Professor V. MURAV’YOV

Doctor of Law, Professor N. PASHKOVSKY

Doctor of Law, Professor V. REPETSKY

Doctor of Law, Professor L. TYMCHENKO

And other 128 members of UAIL – PhDs and Doctors of International Law

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    Comments

    Carmen says

    March 5, 2014

    It is interesting to see how international lawyers mobilise on the question of Ukraine with this statement and other analyses on this blog and others.

    The situation in Ukraine is definitely dire. However, for the sake of commitment to truth, that an academic should, at least in principle, display, I would have also liked to hear the opinion of the signatories of this appeal about how could we position ourselves to the gesture of the ”revolutionary government” in Ukraine of wanting to abolish the law on protection of minorities in Ukraine. This was a gesture that also contributed to the esclation of the situation.
    How should we understand this gesture? What is its political significance? What does it say about the attitude towards minorities of the new actors taking power in Ukraine ?
    It is a known fact that there is an issue with the protection of minorities in Ukraine and the neighbouring countries know it all too well.
    And the Ukrainian unrest can be read also as a nationalsitic manifestation of the Ukrainian population, as much as a desire to ”go West” (constructed in opposition to the idea to ”go East”).

    Does this gesture of the new people in power in Ukraine constitute an early indicator that the Ukrainian revolution might reproduce the story of the post-Arab spring? Or does it mean something else?

    These are tantalising questions for me, at least. And I think it is useful to come clear on this aspect also, in order to take a realistic and balanced stance on the current crisis and on the overall context also.

    Jacob Levi says

    March 5, 2014

    There is one issue that was not mentioned in this appeal and I think should be considered. And the issue follows the question of who the legitimate and recognizable government of Ukraine is at the moment. It is important to know who the government is given that Russia claimed in the SC to have a formal request by President Yanukovych for its intervention. Given that some of the actions of the new power in Kiev have been of dubious constitutional legality (abolition of the law protecting minority languages), there is room to argue that Yanukovych is still the legitimate representative of the Ukrainian people and Russia is merely responding to its appeal.

    Lidiia Kuzmenko says

    March 5, 2014

    Dear Jacob Levi,
    Please, consider the following facts.
    Accroding to the Constitution of Ukraine the President has NO right whatsoever to request a military assistance. That's the right of the Parliament (Verkhovna Rada).
    Second, there was NO formal request from Mr.Yanukovich - noone ever saw it, it was never published, Ukrainian public had no opportunity to consider it.
    Third, it is strange to talk of "dubious constitutional legality" of actions of the Parliament. The law you mentioned is not on "minority languages" but on "language policy". It remains in force since the Acting President Mr.Turchinov have not signed it (in other words vetoed it).
    Fourth, it would be rather interesting to hear your argument with regard to Yanukovich remaining a President. Otherwise it sounds that an attempt to vote a language policy law constitutes grounds for an escaped dictator to remain in power.
    Thank you

    Lidiia Kuzmenko says

    March 5, 2014

    Dear Carmen,
    You asked "how could we position ourselves to the gesture of the ”revolutionary government” in Ukraine of wanting to abolish the law on protection of minorities in Ukraine

    - there was no such action. The law that the parliament (undoubtedly on the wave of "revolutionary adreniline") attempted to abolish concerned language policy in general. However, as I mentioned in my comment to Jacob Levi, the law was vetoed by the Acting President Mr.Tuchinov. The law on minorities was adopted in Ukraine in 1992 and is in force. It is in line with international obligations of Ukraine.

    Rein Müllerson says

    March 5, 2014

    Though there are many causes of the current conflict in and around Ukraine and neither the Ukrainian political élite nor those external actors who have supported and continue to support the current government have acted having in mind the best interests of the Ukrainian people as a whole, I think that the legal analysis of our Ukrainian colleagues as to the behaviour of the Russian Federation is correct. I would also refer to Article 3 (e) of the 1974 Definition of Aggression that has become a part of customary international law and as such is enshrined in the Kampala definition of aggression.
    Unfortunately for international law and lawyers, Russian arguments in defence of its stand on the matter sometimes remind justifications used by Western powers when bending international law. There has been rather disturbing undermining of principles of non-use of force and non-interference in internal affairs of States. The latter principle seems to have altogether fallen into desuetude. Russia then and now and the Western powers before the fall (well deserved) of the thief-in-chief of Ukraine simply competed in the rush to intervene in Ukraine. Some political leaders who while talking, for example, about Syria or Iran say that "all the options are on the table" don't even believe that there may be some legal limitations to use of force (by them only, of course). And when nothing else helps, then it is always possible to say: even if unlawful, it is legitimate. And pay attention, President Putin didn't say that Russia acted lawfully; it was legitimate, he emphasised.
    Moreover, like a drop of water reflecting the Ocean, the scramble for Ukraine seems to reflect the competing desires of some to have a uni-polar or non-polar world ruled from one centre (Washington, with the supporting role of Brussels) and moving towards "the end of history" through a string of regime changes, on the one hand, and the movement towards multipolarity where regional powers have their respective spheres of influence, on the other. Whichever scenario prevails, international law suffers.

    Rein Müllerson

    Svitlana Starosvit says

    March 5, 2014

    Dear Carmen,

    I want to join previous posts of my colleagues in confirming that we are talking here about the protection of minority languages law, and that it has not been abolished. Moreover, even the idea of its abolishing comes from the history of this bills. Its adoption is connected with gross mistranslations of the European Charter for Regional or Minority Languages. This notwithstanding the idea of its abolishment did not find support. Ukraine's official and very up-to-date position on the protection of national minority rights in Ukraine you can find on the MFA official web-site: http://mfa.gov.ua/en/news-feeds/foreign-offices-news/18859-on-the-protection-of-the-national-minority-rights-in-ukraine I hope this helps to resolve your questions.

    Maryna Medvedieva says

    March 6, 2014

    Dear collegues, it is obvious for the majority of Ukrainian people that Yanukovych is not now the legitimate president of Ukraine. He has no effective control over the population, territory and governmental institutions. We don’t know where he is, he is wanted by Interpol as he is under criminal investigation for the crimes against humanity.
    Concerning the law on minorities language protection we must remember the political sircumstancies of its adoption. Most European organizations admitted that it is not in compliance with Ukrainian Constitution and international treaties ratified by Ukraine. The act is contrary to the European Charter for Regional or Minority Languages, which is designed primarily to protect the languages threatened with extinction due to the low number of carriers. We can’t say this concerning the Russian language. The Russian is not a language of minorities. Its excessive protection may threaten the existence of Ukrainian language. And language is the basis of any sovereign national state existence.

    David Hernández says

    March 6, 2014

    Dear Karmen,
    Your post is so devoid of facts and so short in legal arguments that the responses to it, however well-meaning and well founded, would not have been necessary.
    Precisely taking academic commitments seriously, I must affirm that polite phrasing can never justify misleading speculation.

    Camilla Barker says

    March 6, 2014

    "We would like to stress that no duly authorized national, foreign or international institution has declared any violation of human rights on the territory of Ukraine, or specifically in the Autonomous Republic of Crimea, which would have required the intervention of any subject of international law or the international community."

    Can anyone confirm that the word "required" has been accurately translated here?

    Lidiia Kuzmenko says

    March 6, 2014

    As far as I can see from the Ukrainian text, yes, it is accurately translated. The whole phrase is supposed to mean that there was no infomration on human rights abuses in Crimea with regard to the citizens of Russian Federation. If there would be wide-scale human rights abuse with regard to Russian citizens it would be possible to argue that the Russian Federation had grounds to protect its own citizens (as they first claimed)

    Camilla Barker says

    March 6, 2014

    Dear Lidiia Kuzmenko,

    Many thanks for your response.

    That's really interesting. As Professor Akande identified earlier in this post, such a statement does therefore call into question whether Russian intervention would have been deemed lawful if such a declaration had been made. Although, for me, I'd then want to further question the standard of rights abuse required to deem such intervention lawful. I'm confident it is not "any" human rights violation, taking the statement literally.

    Any views as to whether this was meant to read as pro-R2P as it does?

    Regards,

    CB.

    Lidiia Kuzmenko says

    March 6, 2014

    Again, if I read it correctly - and this is how Putin it first claimed when turning to senators for approval of use of armed forces - they indeed were trying to apply R2P (however, never named it like this!)
    And I do agree with your thoughts on the necessity to weigh the level of human rights vioaltions, their extent and scale...

    Jacob Levi says

    March 6, 2014

    Dear Lidiia Kuzmenko,
    Thank you for your reply! With your permission, I'll continue to play the role of devil's advocate.
    The point I wanted (and probably failed)to make is that it's necessary to take into consideration the issue of recognition of governments. We have a country (in this case Russia) recognizing the government of another country (in this case President Yanukovich). Such recognition is not absurd, as the President was elected and never resigned. You may consider Yanukovich lost political legitimacy because of the repression he engaged in. However Russia may very well disagree with you. After all, it's politics...
    What happened was that the representative of that government requested military aid (or seems to have done so). Could we then really consider the intervention an aggression? In the same way, during the Spanish Civil War Germany and Italy provided help to what they considered the legitimate government of Spain (Falange) and USSR, France and UK provided help to the other one (the Republicans). Were those actions illegal according to international law?
    You say that only the Parliament can make such request. It may be so, but that's domestic law, even if Constitutional. How much is international law really concerned about domestic law? Will the states need to study other states' domestic law to know who can represent them? The Vienna Convention on the Law of Treaties certainly seems to show otherwise (art. 7.2).
    All the best,
    Jacob

    Jordan says

    March 6, 2014

    I wonder whether the Govt. of the Ukraine should suspend performance regarding or terminate the 2010 military base agreement in view of Art. 62 of the Vienna Convention and ask the Russians to leave Crimea, give them a week. Also, Art. 60, para. 1, would allow termination of the bilateral treaty because of the material breach of the treaty by Russia through its unlawful use of force in violation of U.N. art. 2(4). If those are not Russian troops closing off ingress and egress to Ukrainian military bases and its waters, Russia is "substantially involved" and under the ICJ's test there is attribution or imputation of non-state actor uses of armed force to Russia. see http://ssrn.com/abstract=2402414 regarding imputation and the "substantial involvement" test.
    If the Ukraine declares war against Russia, but does not engage in military force in response to Russian armed force or the attribution of non-state actor armed attacks to Russia, perhaps an attempted future annexation of Crimea by Russia would be void under Article 47 of the 1949 Geneva Civilian Convention, as supplemented by the ICRC Commentary at pp. 275-276.

    Lidiia Kuzmenko says

    March 6, 2014

    Dear Jordan,
    thanks for your comment. That's all, I think, concidered or at least is taken into account.
    Ukraine has never declared a war on Russia and I think never will. However, there are voices of "unrecognized troops" being considered "terrorists" since Russian officials (President and Minister of Defence) publicly denied presence of Russian military personnel in Crimea.
    ***
    Could I kindly ask you not to write "the" before Ukraine. This article was used when Ukraine was a part of the USSR. It is not any more.

    Jordan says

    March 6, 2014

    Thanks Lidiia. I did not know about the "the" and its history.

    Lidiia Kuzmenko says

    March 6, 2014

    Dear Jacob,
    a playfull tone of "devil's advocate" would have been acceptable if this would be a game or a discussion of a matter of a smaller importance. However, we discuss something that happens in my country in real time. Let's try to remain within the discussion's frameworks.
    Your arguments are interesting and do prodive food for thought.
    Let's clarify something.
    You mention that "internal law does not matter for international relations" in one para and say that "Yanukovich remains lawfull since he has not resigned" (I guess, you mean as it is prescribed by Ukraine's legislation?) in another. So... What's your position on the place and role of national legislation with regard to international relations?
    By pointing to Art.7(2) of the Vienna Convention on the law of treatis you suggest that Yanukovich's letter asking for Russian invasion is a kind of international treaty?

    Now, I am not sure whether or not this has been properly clarified before, so I'll try to explain why and how Ukraine (as well as the rest of the world but Russia) accepted the change of government.
    1. Yanukovich fired the previous government towards the end of January. There were acting ministers and acting prime minister
    2. Even before the "political agreement" of 21 February some "acting ministers" including "acting prime minister" fled the country.
    3. Under 21 February agreement Yanukovich had 48 hours to sign a law changing the Constitution back to its 2004 standard. However, Mr.Yanukovich fled the country. His feet followed the Speaker and the Vice Speaker (they resigned and returned to the Parliament some days later).
    4. At the same time noone ever doubted the legality of the Parliament elected in October 2012. Yanukovich was not there to sign the law as was prescribed by 21 February agreement; there was no Speaker to do the same (our Constitution provides for such an option); therefore, the second Vice Speaker (Turchinov) signed that law changing constitution.
    5. The parliament followed all the procedures provided for in this renewed 2004 Constitution and appointed the Speaker, formed a coalition, appointed the Prime Minister and so on and so forth. Acting ministers of the previous government never were ousted or anything else. They continued to fulfill their functions until the appointment of new ministers. Therefore, any doubts as to the "continuity" of government of Ukraine sound strange. There are no other alternatives and never were.
    There were no doubts in the powers of a new government. Even the President of the Russian Federation mentioned several times in his press-conference that he ordered ministers to work with newly appointed heads of ministries in Ukraine.

    Alla Fedorova says

    March 7, 2014

    Dear colleagues,
    I absolutely agree with Lidiia and Svitlana and would like to join the discussion and try to answer some questions that have been posted, taking into account that understanding of the current situation in Ukraine by foreign colleagues is very important for us.
    The main Russian argument for the intrusion were the violations of the rights of Russian-speaking, ethnic Russian population of the Crimea. Till now no recorded evidence has been provided, discrimination on language grounds Russian-speaking Ukrainian citizens does not exist. Conversely, international and national non-governmental human rights organizations earlier paid attention to the facts of the discrimination of the Crimean Tatar population. Moreover, Russian is the official language in the Crimea, which is not only used at schools, in everyday life, but in legal proceedings and the official business documents circulation.
    Ukraine is a party to the main Council of Europe conventions enshrining minority rights and concerning issues of regional and minority languages, including the Framework Convention for the Protection of National Minorities European Charter for Regional or Minority Languages and the fulfillment of obligations by Ukraine could be traced in the documents of relevant monitoring bodies (http://www.coe.int/t/dg4/education/minlang/Report/default_en.asp, http://www.coe.int/t/dghl/monitoring/minorities/default_en.asp).
    However, even in the case of infringement of such language rights by the state, international law does not provide for the possibility of solving problems through aggression against another State.
    And it is necessary to stress once again as Svetlana and Lydia have already pointed out , that the law on language policy was not repealed because of the Acting President 's veto.
    I would like to emphasize that the new people in power are acting and performing their duties parliamentarians who voted on major issues by the constitutional majority, in many cases 85% or more of the total deputies, in the similar manner the government was formed.
    According to the normal practice in democratic countries the government has to resign in the case of massive widespread protests. This was demanded by hundreds of thousands of peaceful demonstrators in Ukraine for nearly 3 months, exercising their right to freedom of peaceful assembly, using the form of direct democracy and expressing their attitude concerning Yanukovych’s policy. Despite the brutal beatings of students, no investigation was carried out and illegal repression and persecution were only intensified.
    During the presidency of Yanukovych amount of fundamental human rights violations, including the right to a fair trial, prohibition of torture, inhuman and degrading treatment, right to life, the right to security, to liberty, freedom of expression, speech, freedom of peaceful assembly and demonstrations and other rights, increased to unprecedented size. The confirmation could be find in the European Court of Human Rights judgments versus Ukraine, in Ukraine report to the Universal Periodic Review in 2012, reports of all well-known international and national human rights organizations such as Amnesty International, Human Rights Watch, Ukrainian Helsinki Human Rights Union etc.
    And the last issue, the country where political and civil rights are massively violated, freedom of speech and peaceful assembly are ephemeral concepts (see reports on the situation of human rights in Russia) sent a military forces to the territory of the independent sovereign state to protect the rights of its citizens. It is impossible to find a justification of this intervention under the international law, as well there is no justification from the commonsense.

    Jacob Levi says

    March 10, 2014

    Dear Lidiia,
    I'm sorry if I sounded playful using "devil's advocate's" arguments. That was not my intention - I just meant to show that there are legal arguments from both parties... Even the most "devilish" one.
    All the best,
    Jacob

    Jordan says

    March 10, 2014

    Over at Opinio Juris ( www.opiniojuris.org ) there is a recent post by Robert re: self-determination of a "people" and Crimea. Who are the "people" in Crimea?