Who Speaks for Ukraine?

by Chris Borgen

[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.

http://opiniojuris.org/2014/03/03/who-speaks-for-ukraine/

18 Responses

  1. “Yanukovich, abdicated his responsibilities, fled, and thus lost legitimacy.”
    This is not a legal argument, but a biased characterization of the facts. It’s stunning, but not surprising, to see so many American lawyers reflexively support the State Department position. You’re a bunch of tools masquerading as scholars.

  2. The Russians seem to invoke the doctrine of pro-democratic intervention in favor of an ousted elected government. Even assuming that this doctrine is recognized as lex lata, the question arises whether Yanukovich actually possesses these democratic credentials. Furthermore, in the past, such interventions were tolerated when they were undertaken by regional organizations,  not by a clearly interested neighboring superpower. 

  3. “Public Opinion”:  First of all, you quoted from a paragraph that was meant to be a summary of the U.S. position.

    We have a comment thread so that readers of varying perspectives can discuss these issues in a civil manner. So, instead of just throwing around ad hominems, do you actually have a legal counterargument?

    E Lieblich: Yes, good point. So, this brings us back the the Ukrainian constitutional question as to whether the parliamentary action was adequate to remove Yanukovich or not. Assuming for the sake of argument that it was not, then there is a longer assessment. The US, regardless of the parliamentary vote, argues that Yanukovich had lost legitimacy and chose to flee the country.

    As for precedents for such interventions, the UK ambassador called to mind other Russian interventions to quell popular uprisings: Hungary 1956 and Czechoslovakia 1968.

  4. … and to avoid any confusion, let me be clear that the UK ambassador’s point was that those were examples of interventions under trumped up pretexts.

    Here’s the summary of his points from the release from the UN’s Department of Public Information:

    MARK LYALL GRANT ( United Kingdom) said “the pretence is now over”; the world could see that Russian military forces had taken control of Crimea against Ukraine’s wishes and in clear violation of its sovereignty, independence and territorial integrity.  It was a flagrant breach of international law and everyone could see that there was no justification.  The Russian Federation said that its forces were there to protect against interference with the Orthodox Church, as well as hundreds of thousands of refugees, but it had provided no evidence.  That was clearly fabricated, and on that “trumped up pretext”, the Russian Federation had contravened its international obligations, including the United Nations Charter, which sought to prevent breaches of any Member State’s territorial integrity and political independence through the use of force.  If the Russian Federation was genuinely concerned about the human rights of Ukraine’s citizens, then armed intervention was not the way to protect them, he emphasized.  The era in which one country could suppress another by using force under a trumped up pretext was over.

     

  5. Russia’s attempt to frame its actions as consistent with a known exception to the prohibition on the use of force is neither surprising nor new.  In fact, there is significant precedent for it.  When I looked in the late 1990’s, it was clear that most uses of force that the majority of states condemned as violations of Article 2(4) were “justified” by the violators with broadly accepted legal arguments (invitation, self-defense, etc.) applied to highly contested facts (what non-academics would probably call “lies”).   See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1995608  Such attempts to misapply known exceptions to Article 2(4) were also widely rejected by states depriving them of any legal effect. 

  6. The U.S. recognized Bangladesh as well as Bosnia-Herzegovina within the last 40 years and a number of other new states.
    In any event, the former president of the Ukraine was impeached by the Ukraine legislative body.  He is rather like Noriega who, having lost an election, refused to step down.
    Russia has no valid claim to self-defense or humanitarian intervention under UN art. 51 unless and until “an armed attack occurs.” see, e.g., http://ssrn.com/abstract=2402414  and there has been no such armed attack.  Instead, there has been a Russian armed attack on the Ukraine in violation of UN art. 2(4) and, as former Amb. Albright stated today, an illegal “aggression” by Russia!

  7. Jordan:

    Two quick points: Bosnia and Bangladesh were recognition of new states, as opposed to recognition of new governments in already existing states, as is at issue here.

    Second, I do not know that the vote in Ukraine was according to Ukraine’s constitutional procedure. It may well have been, but I just don’t know one way or the other.

    That is not dispositive of the legitimacy question, but it would be good to clarify.

     

  8. In a (what I think is a) balanced article, Anatol Lieven of King’s College described many of Ukraine’s new actions as being part of a ‘rump parliament,’ which would touch on the question of the legitimacy of removal as a Ukrainian domestic matter. As Prof. Borgen keeps saying it’d be interesting to know more about it from  a Ukrainian law perspective about whether it was constitutionally legitimate. 
    http://www.zocalopublicsquare.org/2014/03/02/why-obama-shouldnt-fall-for-putins-ukrainian-folly/ideas/nexus/
    That said, after I looked at my comments I kept wondering about the interplay of domestic and international law in this issue. I am so used to, in my other field of life, saying validity under domestic law is not controlling of international legal arguments. But I think surely a constitutionally legitimate change of power would be a fairly decisive fact on this question. But what happens if the answer was “no, it’s not”?
    As an aside, Eric Posner also has a good post on this on his blog. 

  9. Sorry for the annoying second post so shortly after my first one, but it seems that US Secretary of State John Kerry stated that the Ukrainian Rada overwhelmingly approved the new government:
    http://www.theguardian.com/world/2014/mar/04/ukraine-crisis-shots-fired-crimea-airbase#block-5315ffeae4b0da1677ed2d59
    John Kerry further noted to Andrea Mitchell (located on the Guardian’s live blog above) that Russia attempted to get eastern councils to invite Russia in, but these were purportedly blocked. If that’s the case there would not even be unanimity over this request by various portions of the Ukrainian government. 

  10. Response…Re Jordan’s mention of Noriega, from a different angle, U.S. in Panama arguably close parallel on the issue of consent and recognition.  U.S. relied heavily on “consent” from a “President” the U.S. swore into office an hour before the hostilities began, who had no government and commanded no military, but whom the U.S. formally recognized as President due to nullified election. Putin argument similar with Yanukovich. There are of course ways to distinguish the two situations, including comparing Yanukovich to Noriega, as Jordon does, rather than Endara, but the parallels are far from superficial, including how it played out in U.N., which condemned the U.S. for violating international law.  My post on this here: http://www.docexblog.com/2014/03/the-yanukovich-letter-is-russia-in.html

  11. Douglas: Endara was the president elect and, later, the president who gave consent. 

  12. “Yanukovich, abdicated his responsibilities, fled, and thus lost legitimacy.” — Seems like he did not. He moved his ofice from Kiev to Rostov, to protect it from the armed mob (or whatever the legal term). Reasonable thing to do, given the circumstances. 

  13. Chris,  A Lawfare reader who claims familiarity with Ukrainian constitutional law points out that the Ukrainian constitution requires a 3/4 vote of the 449-member parliament to impeach the President and that the 328-0 vote last month was short of the 337 votes needed for formal impeachment.  If correct, there is at least a colorable argument that Yanukovych remains the President of Ukraine.  The reader also details and examines 4 other possible bases of Russian action under international law.  Here is the link: http://www.lawfareblog.com/2014/03/russia-in-ukraine-a-reader-responds/

  14. Paul: someone who is likely more familiar with relevant domestic law has stated over at EJIL-Talk that the President does not have authority to request outside military intervention, only the legislative body, and that the legislative body certainly has not done so.
    Russia claims that Russian soldiers are not the ones using force to block ingress and egress from military bases, ports, etc., which many simply find incredible.  In any event, non-state actor armed attacks can be attributed to Russia if Russia has “substantial involvement” in the ongoing use of force in Crimea.  Some textwriters have used the wrong test for attribution or imputation with respect to self-defense and the “substantial involvement” threshold is lower than an “effective control” threshold that only applies with respect to state responsibility for specific war crimes and/or human rights violations by non-state actors. see, e.g.,
    http://ssrn.com/abstract=2402414
    Lets see how self-defense play out.

  15. No, Yanukovich was <b>not</b> impeached under the provisions of the Ukrainian constitution. It requires a super-majority vote followed by ratification by the Ukraine Constitutional Court. Neither happened and this fact isn’t even disputed. So there is no way that if a democratically elected President, such as Yanukovic, was violently overthrown and forced to flee and supposedly replaced in a manner illegal under the constitution by the very leaders of this same coup de’tat, that it in any way removes the legitimate claim to power and the presidency of Yanukovich.

  16.  
    Prof. Borgen touches on an important (though not dispositive) point with respect to the legitimacy of Mr Yanukovych—namely, whether his “impeachment” was legitimate under the Ukrainian Constitution. As many other commentators (Paul, Joseph) have already pointed out, the 22 February 2014 vote failed to reach the required three-fourths majority vote, as required by the Constitution. However, even if Mr Yanukovych remained the legitimate head of the Ukrainian State, a second key point to consider is whether he had the constitutional authority to unilaterally request Russia’s military intervention in Crimea. As a partner of an international law firm’s Kiev office emphatically remarked, “absolutely no Ukrainian President under the Ukrainian Constitution could ever unilaterally invite any foreign army into Ukraine … Any request for internal peace-keeping assistance would at a minimum require approval from Parliament.” This and other provisions under the Ukrainian Constitution and their implications on the Crimea referendum and subsequent Russian annexation are further analyzed in this piece on the LexisNexis International Legal Newsroom.
     

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