Should the U.S. Use “Lawfare” Against Russia?

by Julian Ku

Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism.   As they defined it then:

The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.

So it is somewhat surprising that the duo, both very influential commentators among U.S. conservatives, is advocating a lawfareish approach to combatting Russia’s annexation of Crimea and its threats against Ukraine. Here is some of their advice in today’s WSJ.

As a start, the Obama administration should seek a U.N. General Assembly resolution requesting the International Court of Justice’s opinion on the legality of the Russian annexation of Crimea.

The U.S. and its allies should also challenge the legality of Russia’s actions in every conceivable legal venue, whether domestic or international.

Nongovernmental organizations, which cast themselves as guardians of the international order, have a role to play in condemning and challenging in courts of law and in public opinion Russia’s actions against Ukraine

In other words, the authors want to use “lawfare” against Russia.  I agree that the US has good legal arguments against Russia on this issue, and that the US also had good (but not unassailable) legal arguments for its war on terrorism policies. But I don’t think that the US invocation of international law, nor its employment of “lawfare” to highlight international law, will be very successful against Russia.  Lawfare’s main impact against the U.S. was to tie up many of its policies in domestic U.S. litigation. I don’t see that as an avenue against Russia.

Moreover, the employment of lawfareish pressure tactics could easily be used as an excuse to avoid taking more strenuous or effective actions (e.g. tougher sanctions, increased military aid, etc.).  I am not sure US conservatives should be eager to jump on this lawfare bandwagon, no matter how good the cause.

Kosovo, South Ossetia, and Crimea: the Legal Rhetoric of Intervention, Recognition, and Annexation

by Chris Borgen

Following up on my previous post, I want to look at Russia’s rhetoric regarding Crimea and how it relates to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia. While countries may use arguments that start to seem inconsistent, Russia’s use of “law talk” is especially striking because it uses legal rhetoric so often, even when it has rather weak arguments. While Russia deploys legal language, increasingly they are not the concepts of international law as generally accepted. Rather, Russia is building a revisionist conception of international law to serve its foreign policy needs regarding the states of the former Soviet Union.

But, first, let’s take a few steps back. For President Putin, the situation in Crimea has its roots in Kosovo. Kremlin watchers have argued that the loss of Kosovo was a traumatic experience for President Putin and Foreign Minister Sergei Lavrov. (For some background on the run-up to Kosovo’s declaring independence, please see this post.)

In his speech of March 18, President Putin revisited the disagreements Kosovo declaration of independence, even quoting the U.S.’s argument before the ICJ:

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

This idea that the residents of Crimea just want the same ability to become a country that those in Kosovo had is rhetorically appealing. (And keep in mind the combination of legal rhetoric with ethnic grievance in his quote, I want to come back to that.) But wanting to be a country does not mean you have the right to become a country. As discussed before, there is no general right to secession, regardless of referendum results.

However, there are many differences between the two cases: Kosovo had been under international administration for close to a decade, its final status was left open in the UN Security Council Resolutions, it was the site of significant ethnic violence. None of that is true in Crimea.

But what is especially interesting is how Russia has changed what it is describing as the lesson of Kosovo. In 2008, Russian Foreign Minister Lavrov called Kosovo’s potential separation from Serbia a “subversion of all the foundations of international law, . . . [a] subversion of those principles which, at huge effort, and at the cost of Europe’s pain, sacrifice and bloodletting have been earned and laid down as a basis of its existence.”

In his March 18 speech, though, President Putin took a different tack. While (Serbia’s) sovereignty and territorial integrity were the focus of Russian diplomacy concerning Kosovo, there is little talk now about protecting Ukraine’s sovereignty. Rather, President Putin spent the opening sections of his speech decrying the historical mistake of handing Crimea over to Ukraine “like a sack of potatoes.” And what of agreements, such as the Budapest Memorandum, recognizing the “existing borders of Ukraine,” respecting Ukraine’s territorial integrity, and reaffirming the obligation not to use or threaten to use force? President Putin explained “Russia seemed to have recognized Crimea as part of Ukraine, but there were no negotiations to limit borders.” (Emphasis added.) That is contradicted by the text they actually signed. What about sovereignty? “It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to.” (Perhaps he was confusing change of government with dissolution of a state.) And then “the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and their lives…”

Once again, this is an argument based on irredentism and a sense that borders and sovereignty can become rather wispy and insubstantial when you hear the call of people of the same ethnicity or who speak the same language as you do. (Not necessarily the same citizenship, mind you: ethnicity and/or language.)

From here, he opens his view to the state of international law… (Continue Reading)

Guest Post: The Russia-Crimea Treaty

by Gregory H. Fox

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.  I would like to thank my colleague Brad Roth for helpful comments on a draft of this post.]

The latest development in Crimea’s headlong rush out of Ukraine is an agreement, signed on Sunday, March 16, between the Russian Federation and the Crimea. While I have not found a full translation of the agreement from Russian, the full text is available on the Kremlin website (as is President Putin’s extended response to western international legal arguments, which is well worth reading in full).

In rough translation, Article 1 of the treaty provides that the “Republic of Crimea is considered to be adopted in the Russian Federation from the date of signing of this Agreement.”  The incorporation is “based on the free and voluntary will of the peoples of the Crimea.”  Article 2 announces the formation of two new entities, the Republic of Crimea and the “federal city of Sevastopol.”  Article 5 provides that residents of Crimea will become Russian citizens, unless within one month they choose another nationality. Article 6 describes a seven month transition period during which the economic, financial, credit and legal systems in Crimea will be integrated into those of the Russian Federation.”

The agreement has been accurately described as completing the annexation of Crimea.  Territory that thirteen of fifteen Security Council members believe is still part of Ukraine has been transferred to Russian control.  Let me make three quick observations about this agreement.

From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)

Ukraine Insta-Symposium: Potential Non-recognition of Crimea

by Anna Dolidze

[ Dr. Anna Dolidze is an Assistant Professor in the Faculty of Law, the University of Western Ontario.]

On Sunday the inhabitants of the Ukrainian Autonomous Republic of Crimea voted in a referendum on whether Crimea should become part of the Russian Federation or regain the status under the 1992 Constitution as part of Ukraine. A March 11, 2014 Declaration of Independence by the Parliament of the Autonomous Republic of Crimea preceded the referendum. The Declaration specifically referenced the International Court of Justice’s decision in relation to the status of Kosovo. According to the preliminary results published by the Crimean authorities about 95% of voters voted in favor of the union with Russia, while the overall turnout was 81.%.

While the results were celebrated in Simferopol, Russia’s President Vladimir Putin signed a decree recognizing Crimea’s independence. However, this post argues that the Crimean Republic might become subject to the doctrine of non-recognition. The initial evidence suggests that it might follow the footsteps of other self- declared independent entities, including Abkhazia, South Ossetia, and Turkish Republic of North Cyprus (TRNC) that have declared independence, yet failed to attain statehood partly due to the application of the doctrine.

As Thomas Grant explains in his book The Recognition of States, Law and Practice in Debate and Evolution recognition has served international society as a device by which to respond to changes in the world public order and the emergence of new states. In the process of the disintegration of the Union of the Soviet Socialist Republics (USSR) and the Federal Republic of Yugoslavia (FRY) the principles on recognition acquired renewed importance. Professor John Dugard points out that the recognition by other states remains important even to those who share prevalence of declaratory doctrine of recognition, which maintains that a political community that meets the requirements of statehood automatically qualifies as a “State” and that recognition by other states simply acknowledges “as a fact something which has hitherto been uncertain.” For example, although the Supreme Court of Canada, discussing the legality of possible secession by Quebec from Canada, adopted the declaratory theory of recognition, it emphasized “the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states.” Although recognition of states is primarily a bi-lateral affair, as Professor John Cerone notes, collective recognition or non-recognition by an overwhelming majority of states may impact the question of the existence of a state by influencing the application and appreciation of the Montevideo criteria on statehood.The admission to the United Nations and the European Union (the European Communities previously) has been acknowledged as a form of collective recognition that significantly influences the statehood status.

The recognition of Kosovo is an interesting example in this regard. It might be argued that the recognition of Kosovo bears the traits of collective recognition, but in fact it remains to be an individualized affair among states….(Continue Reading)

Ukraine Insta-Symposium: Intervention and Colonialism as Responses to Alleged Fascism

by Boris Mamlyuk

[Boris N. Mamlyuk, Ph.D., is an Assistant Professor of Law at the University of Memphis School of Law.]

Julian Ku makes an interesting observation regarding Russia’s fact-based arguments in support of Crimea, versus what most commentators see as a weak legal case for self-determination.  Over the past week, I’ve tried to offer several mapping exercises in order to explore the expanding range of international law arguments and potential violations.  The purpose was by no means to describe a “Russian point of view,” or to criticize U.S. international law commentators, of which I am one.  Rather, the attempt was to assume in good faith the factual assertions proposed by Russia in support of Crimean independence, and then to explore the ramifications of the current standoff from the perspective of international law. 

Russia’s mounting argument for humanitarian intervention beyond Crimea, in Eastern and Southern regions of Ukraine, needs to be scrutinized carefully.  Thus far, Russia seems to be merely reserving the right to intervene, and to my knowledge, the Russian government has not articulated a standard for humanitarian intervention in Ukraine, or a ‘red line’ that would trigger an R2P intervention.  Short of that, we can consider the most recent standard for humanitarian intervention, formulated in the UK’s guidance document on the proposed intervention in Syria.  According to this guidance document, humanitarian intervention is permissible where:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian need and must be strictly limited in time and scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).  (emphasis added).

These elements fall far short of the R2P ‘three pillar’ approach, which includes an express responsibility to prevent humanitarian catastrophe.  The current situation in Ukraine, while fluid and dangerous, does not seem to have risen to the level of extreme humanitarian distress required for intervention.  What Russia seems to be doing, then, is positioning itself for an intervention in the event of further escalation of violence… (Continue Reading)

Winding-Up the Ukraine Insta-Symposium

by Chris Borgen and Roger Alford

Our thanks to all who have contributed to the conversation here on Opinio Juris about the many legal issues related to the situation in Ukraine.

Over the past week we have had guest posts on topics such as Russian rule-breaking as power politics, the use of force under international law, the international humanitarian law issues involved in the Crimean crisis, the limits of intervention by invitation (1, 2), the law of self-determination, lessons from the Aaland Islands dispute, the Russian/ Ukrainian Black Sea status of forces agreement, and transitional justice in Ukraine and Russia.

And, that is not to mention all the posts by the regular Opinio Juris bloggers on topics such as the Crimean referendum (1, 2), Russia’s “citizenship power play,”  the Presidential authority for visa restrictions, whether Yanukovich could request Russian intervention, and the efficacy-or lack thereof-of international law (1, 2, 3).

Further, still, in addition to the main posts, we have dozens of reader comments that have been interesting, enlightening, and informative. Thank you!

At this point,  if there are any more submissions for potential posts, we need to receive them by 3:00 pm Friday (US Eastern Time) so that those selected can be posted this weekend.

Although this symposium is drawing to a close, we at Opinio Juris will continue writing about the ongoing issues in Ukraine.

Once again, thank you, everyone, for participating in this discussion and contributing to our understanding of the situation in Ukraine.

We hope you will continue to participate as we continue exploring the international legal issues in the conflict over Ukraine’s future.

Ukraine Insta-Symposium: Of Secession & Less-Drastic Means–Do the Åland Islands Hold Any Lessons for the Crimea Crisis?

by Rhodri Williams

[Rhodri C. Williams is a US human rights lawyer living in Sweden and working for the International Legal Assistance Consortium. He writes on human rights issues on his own blog, TerraNullius.]

In the crisis triggered by Russia’s poorly concealed incursion in Crimea, there are plenty of grounds to believe that Moscow’s international law arguments are largely a smokescreen, albeit one arguably enabled the West’s own blurring of legal lines in the course of two decades of liberal interventionism. Lying behind Russia’s normative protestations, however, are concrete assertions of political interest that will have to be addressed in order to achieve a sustainable resolution. In this sense, an emerging normative challenge relates to the extent to which international law and practice on self-determination would facilitate such a process.

Russia’s has a number of arguable political interests in the Crimean peninsula. The most obvious relate to security, and Crimea’s role as a warm water port of longstanding strategic significance to the Russian Navy. However, a far broader claim relates to Russia’s asserted right to protect both its citizens and Russian speaking minorities throughout a “near abroad” corresponding to the boundaries of the former Soviet Union. Like any country, Russia has a legitimate interest in the fate of its citizens and an arguable interest in supporting kin minorities. However, the unilateral and open-ended imposition of Russia’s own “protection” in a neighboring state is taken by many in the region as a thinly veiled excuse for a new round of post-Soviet revanchism. Indeed, comparisons have inevitably been drawn to “Hitler’s substitution of ethnicity for state borders” in the lead-up to World War II.

The issues raised by Russia’s “ethnic” claims in Crimea, eastern Ukraine and beyond play on debates about the alignment of states and nations that have been with us since the 19th century, but which gained an explosive new life since the end of the Cold War. Ironically, the original political emergence of these issues arguably came with the Crimean War of the 1850s, in which France and Britain sought to prevent Russia from encroaching on Ottoman Turkish-held territories in the Balkans. However, while both Ukraine and the Balkans have subsequently provided spectacular examples of the failure to peacefully manage diversity, the Åland Islands of Finland – the little known northernmost theatre of the Crimean War – give some grounds for hope.

The “Åland example”, as described in a recent book by the Åland Islands Peace Institute, has significant resonance for Crimea. Perhaps most obviously, Åland, like Crimea, occupies a strategic location in a region long troubled by ethno-linguistic cleavages. Åland is an archipelago in Finland that projects toward Sweden across a narrow strait in the Baltic Sea. Like the rest of Finland, Åland was part of Sweden until 1809, when the country was incorporated into Russia. Eager to consolidate an outpost within striking distance of Stockholm, the Russians built a fortress at Bomarsund on Åland.

Thus, the issue of strategic location arose early, with the British and French war aims focused on destroying both Bomarsund and Sevastapol in Crimea, and preventing them from being militarized again. Since the Crimean War, Åland – in contrast to Sevastapol – has remained demilitarized, in a local regime rooted in the 1856 peace settlement. The “ethnic issue” on Åland remained dormant for another 60 years until 1917, when Finland became independent. Until then, the tiny Åland population had aligned itself with the minority of mainland Finns (at the time about 10%) that spoke Swedish as their mother tongue, but that would quickly change.

In 1918, the first Finnish Constitution granted the Swedish language formal equality with Finnish, paving the way for an enduring cultural autonomy that has guaranteed linguistic and cultural rights for Swedish-speakers without granting them either political veto powers or control over their territories. Meanwhile, the Ålanders had already begun to agitate for secession to Sweden and succeeded in bringing their case to the newly founded League of Nations. The result was a 1921 compromise solution in which sovereignty was retained by Finland, but on the condition that Åland was to be granted an extensive territorial autonomy, or local self-rule. In order to assuage Sweden’s security concerns, Crimean War-era demilitarization was affirmed and expanded.

As described in the Peace Institute’s book, all this led to a surprisingly durable regime, sanctified by international law obligations (compiled here), but fundamentally anchored in consent. The authors attribute the longevity of Åland’s arrangements to a number of factors. A key departure point was the astute balance of dissatisfaction set by the original League of Nations decision. Finland was granted sovereignty without control, Åland self-rule without self-determination, and Sweden security guarantees without territorial gains. This may have contributed to a dynamic whereby all parties acted on “the basic premise of accepting a compromise and learning to live with it” (196). (more…)

Ukraine Insta-Symposium: Crisis in Ukraine–A Transitional Justice Perspective

by Ilya Nuzov

[Ilya Nuzov is an Assistant Researcher with the Geneva Academy of International Humanitarian Law and Human Rights and a PhD student in International Law at the University of Geneva. His main research area concerns transitional justice in Eastern Europe.]  

Much has been said in recent discussions on the Ukraine crisis in an attempt to qualify the ongoing Russian intervention as one kind of violation of international law or another and to ascertain possible legal and political repercussions for either state. (See previous posts in this symposium by Robert McCorquodale, Greg Fox, Remy Jorritsma). This post seeks to bring to the foray what it considers a fundamental issue driving the rift between the two brotherly nations and standing in the way of their reconciliation and democratization. Namely, the failure of either Russia or Ukraine to meaningfully work through the Soviet past internally, as well as with respect to each other, through the institution of any of the transitional justice measures previously employed and recommended by the international community. See a description of these by the Office of the High Commissioner of Human Rights here.

The importance of coming to terms with the past in the post-communist space cannot be overstated. Nations that have transitioned most successfully from authoritarian communist regimes in the former Soviet Union and Eastern Europe, including East Germany, are ones that have implemented robust judicial and non-judicial mechanisms designed to methodically work through the past in order to heal societies and rebuild institutions modeled on democratic principles and the rule of law. Upon its reunification, Germany, which has achieved remarkable economic success while ushering in democracy and restoring trust in public institutions, has employed prosecutions, vetting procedures and a commission of inquiry in order to rid its institutions of the authoritarian legacy, restore societal trust and reconcile Germans who collaborated with the communist regime with those who were persecuted by the infamous Stasi.

The same cannot be said with respect to either Ukraine or Russia. Leaving aside the monumental work of NGOs like Moscow-based Memorial, both countries rank near the bottom of the spectrum of post-communist states in terms of official government efforts to work through the past after the fall of the Soviet Union. In Russia, the most noteworthy reforms were instituted in the early 1990’s and addressed primarily rehabilitations of victims of Soviet-era repressions. In 1991, Yeltsin approved Federal Law of the Russian Federation On the Rehabilitation of the Victims of Political Repressions, No. 1761-1 rehabilitating all victims of political repressions after 1917 and offering, albeit miniscule, financial reparations.

No one has ever been held accountable for human rights abuses in Russia. What has been optimistically called the ‘trial of the CPSU’ was nothing more than a constitutional law challenge by some communists in December 1991 of Yeltsin’s decree that suspended and later banned the Communist Party and its Russian Federation branch. Although the proceedings did manage to unearth thousands of pages of secret archives detailing past atrocities, at the end of the day the trial was condemned as a bureaucratic farce that failed to acknowledge the collective trauma of the past. Today, the archives are under the de facto control of the KGB’s successor, the Federal Security Service, which restricts access even to documents dating back to the 1920s. To further complicate matters, many of Ukraine’s Soviet-era secret police archives have been moved to Moscow and the remaining files, maintained by the Ukrainian Archives Committee, are effectively closed to the public. Compare this with the experience of Germany, which has allowed individual access to Stasi archives under the Stasi Records Act and over five million applications from individual victims of the totalitarian regime have been received since 1992 to view them. (more…)

Ukraine Insta-Symposium: Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law

by Kristin Hausler and Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham.]

Our responses to what has been happening in Ukraine and the reactions of various governments, may depend on how we view the politics of the region and the moral claims being made. The rule of law is also of direct relevance, as ‘[we] believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not.’ These words are those of President Putin, written a few months ago in order to prevent the US, UK and other governments from intervening in Syria. International law is crucial to the situation in the Ukraine. It is of particular relevance to the right of self-determination of the people of Crimea and whether Russia can lawfully intervene on the territory of Ukraine.

The right of self-determination, as enshrined in the UN Charter and international human rights treaties, enables a people to determine for themselves their political, economic, social and cultural status. It has been applied in recent years in the former Yugoslavia, East Timor and South Sudan.  It is certainly arguable that the people in the Crimea have a distinct identity and territory, created over centuries and fostered by decisions of the USSR, Russia and Ukraine. This includes its status as an autonomous region within the state of Ukraine and by specific agreements about it between Russia and Ukraine.  It is not unlawful for it to have a referendum and declare itself independent (or that it wishes to merge with Russia), as this was allowed by the International Court of Justice in its (poorly reasoned) advisory opinion on the declaration of independence by Kosovo.

However, such a declaration of independence or merging is not effective in international law by itself. There are two key factors that are relevant: the actions of the state within whose borders the people live; and the responses of the international community. (more…)

Ukraine Insta-Symposium: Intervention in the Ukraine by Invitation

by Gregory H. Fox

[Gregory H. Fox is the director of the Program for International Legal Studies and Professor of Law at Wayne State University.]

In the early days of the Ukrainian crisis, commentators discussed a number of possible justifications for Russian intervention in the Crimea.  On Saturday, March 3, however, the Russian ambassador the UN announced the existence of a letter from Viktor Yanukovych to the President of Russia, dated March 1, requesting Russian intervention.  In the letter Yanokovych purportedly described conditions of chaos in Ukraine and called on “President Vladimir Vladimirovich Putin of Russia to use the armed forces of the Russian Federation to establish legitimacy, peace, law and order and stability in defense of the people of Ukraine.”  I say “purportedly” because Russia did not circulate the Yanukovych letter as an official UN document and as far as I can tell it has not been otherwise released to the public.   By March 1, of course, Yanukovych had left Kiev and been replaced as President by an overwhelming vote of the Ukrainian Parliament.  In the view of the new government, Yanukovych retained no authority after his departure and his letter, if genuine, should “not be regarded as an official request of Ukraine.”  Also on March 1, the Prime Minister of Crimea, who had assumed office only the previous Thursday, appealed to Russia “for assistance in guaranteeing peace and calmness on the territory of the autonomous republic of Crimea.”

In this post I will evaluate Russia’s claim that these invitations legitimated its intervention.  Drawing on material in a forthcoming book chapter I will conclude that the Russian claim is quite weak.


Ukraine Insta-Symposium: Two to Tango? The Limits of Government Consent to Intervention

by Tali Kolesov Har-Oz and Ori Pomson

[Tali Kolesov Har-Oz and Ori Pomson are teaching assistants and LL.B. candidates at the Hebrew University of Jerusalem Law Faculty]

Following the ousting of Ukrainian President Viktor Yanukovich by protesters and parliament, Russian military forces took over key positions in the autonomous region of Crimea (timeline available here). One of Russia’s justifications for militarily intervening in Ukraine has been the reported request by the ousted Yanukovich for Russia’s assistance (see for example here and here). Though the respect for territorial integrity is a fundamental principle of international law and a military intervention would thus clearly violate this rule (UN Charter, art. 2; UN Doc. A/RES/25/2625), Russia’s position is that it has not violated Ukraine’s territorial integrity in light of – inter alia – Yanukovich’s alleged consent. This raises the question, which this piece will address, of how to determine which government or leader – if any – may authorize a military intervention in a State.

It is generally recognized that a State may intervene in another State if the latter’s government provided prior consent (see DRC v Uganda, ¶¶46-47; ARSIWA Commentaries, 74). However, already in the early post-Charter era it became very apparent that the pretext of consent could be subject to serious abuse (Wright, 274-76). Accordingly, there must be “thorough scrutiny” in assessing whether actual and legal consent has been given (Dinstein, §321).

Only a legitimate government may bind a State in international law (D’Aspremont, 878-879). Thus, in order to determine who is entitled to request such a military intervention, we must first identify the legitimate government of that State.

While there are no objective criteria to determine governments’ legitimacy (D’Aspremont, at 878-879), governmental status in the legal literature is regularly equated with territorial effectiveness (Oppenheim’s International Law 150-54 (9th ed. 1992)). However, several authors have argued that governments also derive their legitimacy from the extent to which they come to power through participatory political mechanisms (Franck, 47), or through the internal processes in the State (Roth, 31). Thus, it is quite clear that where a government is effectively replaced by another through legal means, the new government – having complied with both the territorial effectiveness test and the political participation test – may bind a State in international law.

The interesting legal questions arise where an illegal change of power leads to the existence, simultaneously, of separate de facto and de jure governments. In other words, which would be considered the legitimate government where – as claimed by Russian Ambassador to the UN Vitaly Churkin – an insurgent faction has successfully established itself as the de facto government by overthrowing an existing constitutional structure?