Who Speaks for Ukraine?
[Expanding and moving this up from the comments section of my previous post.]
In a comment to the previous post, reader “Non liquet” noted that:
The UN Security Council Meeting was interesting in this regard today. Reportedly, the Russian Ambassador to the UN stated he received a letter from the former President of Ukraine dated 1 March requesting intervention of the Russian army in Ukraine.
It seems that the Russians believe they need to frame their own arguments regarding intervention with at least a fig leaf of international law.
“Non liquet” also linked to this Yahoo News article, which reported that:
“The country has plunged into chaos and anarchy,” Russian Ambassador Vitaly Churkin read from an unofficial translation of the letter while speaking to reporters after an emergency meeting of the U.N. Security Council. “The country is in the grip of outright terror and violence driven by the West.”
“People are persecuted on political and language grounds,” he read. “In this context, I appeal to the President of Russia Vladimir V. Putin to use the armed forces of the Russian Federation to re-establish the rule of law, peace, order, stability and to protect the people of Ukraine.”
“Non liquet” makes a good point that this is an attempt at a legal fig leaf: arguing that any Russian intervention is not an invasion, but rather a lawful response to a request for assistance by a government.
But this is predicated on the idea that Yanukovich was empowered to ask for Russian assistance and military intervention. And thus we have the question of where is the actual government of Ukraine and the related legal issue of the recognition of governments.
In a U.S. State Department press conference this past Friday, the spokesperson said:
We are in the same place we have been in, which is that we don’t – we believe that Yanukovych has lost his legitimacy as he abdicated his responsibilities. As you know, he left Ukraine – or left Kyiv, and he has left a vacuum of leadership. So we continue to believe that he’s lost legitimacy and our focus remains on the path forward.
I take that as an indication that the the U.S. government would not take any further statements or actions by Yanukovich as being actions of the government of Ukraine, in part because the Yanukovich regime has fled and no longer has effective control of the country.
(Russia, clearly, disagrees.)
For about 40 years, the U.S. has moved away from focusing on the recognition of governments. It may or may not have diplomatic relations with various governments, but in most cases did not emphasize the recognition of a government. For more on this, see Section 203 of the Restatement (Third) of Foreign Relations Law. Reporters’ Note 1 of Section 203 explains that
Repeatedly, the State Department has responded to inquiries [about the recognition of governments] with the statement: “The question of recognition does not arise: we are conducting relations with the new government.”
This note is itself almost 30 years old. The same Reporters’ Note also admits that:
In some situations, however, the question cannot be avoided, for example, where two regimes are contending for power, and particularly where legal consequences within the United States depend on which regime is recognized or accepted.
And recognition of governments has been touched upon more recently, such as when France “recognized” Libya’s rebels (in some capacity). While the language of recognition of governments is not being directly used by the U.S. government regarding the current situation, this is basically what is at issue: who speaks for Ukraine.
The United States is focusing on the facts on the ground: Yanukovich, abdicated his responsibilities, fled, and thus lost legitimacy. Consequently, the interim government is the way forward. The United States may be careful about the issue of effective control because, although the interim government has control over large chunks of Ukraine, the situation in parts of the east seems to be fluid. And of course there’s the Crimea. Therefore, the U.S. argument is based not so much on what the interim government has, as what Yanukovich does not have (neither legitimacy nor effective control).
Russia seems to be taking Yanukovich himself as a government in exile. “Non liquet” further notes that the Ukrainian parliament voted to oust Yanukovich and states “If that act was legal under domestic law, I wouldn’t see a reason a foreign government could simply ignore it.”
That “If” is of course at issue. Any readers with knowledge of Ukrainian constitutional law are encouraged to weigh-in!
In any case, given the full extent of the events in Ukraine over the past months, I would be surprised if Russia waving a letter around in the Security Council would be persuasive of the legality of their intervention. But at this point, for Russia it seems to be about fig leaves, not judges’ robes. The U.S. and the E.U. may counter with a full-throated reiteration that they believe the interim government speaks for all of Ukraine, including Crimea.
And, if Russia increases its military intervention, the real debate will be over levels of sanctions placed on Russia. At that point other states will consider how much they believe this fig leaf actually covered.