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

[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?

Effective control has constituted — subject to a few doctrinal qualifications (in particular, rules against premature recognition and foreign-installed regimes) — the internationally authoritative criterion for an apparatus’s standing as the State’s government (Roth, at 30).

First, it should be noted that the “effective control” doctrine conforms to the Montevideo criteria, according to which international personality is found in a territorially coherent political community under the long-term effective control of an independent government (Roth, at 7).

Moreover, granting the effective government the legitimacy to act in the international arena stems from the effective government’s capability to fulfill its international obligations (UN Doc. S/1466). Accordingly, even when the populace renders its obedience under duress, the population is not well served by leaving open the question of which body may assert rights, incur obligations and confer immunities in its name (Roth, at 35). Having made their peace with the unwanted regime, citizens may prefer – notwithstanding whatever internal issues remain – that the State’s interests in foreign affairs be represented by an apparatus that has both the efficiency and the incentive to do so (Roth, at 35).

Additionally and perhaps more importantly, while determining which is the de jure government is an endeavor naturally plagued by uncertainty, effective control can be verified objectively. This point can be seen even in the present situation; while there seems to be very little doubt that the interim government has effective control over large chunks of Ukraine, the legality of its existence remains unclear. Thus, governments that rose to power through coups in Cambodia and Burundi were recognized by the UN as their peoples’ legitimate representatives (Talmon, 521).

Conversely, it could be argued that even the effective government does not necessarily have the right under international law to request intervention. Ex injuria jus non oritur – “a wrongful act cannot become a source of advantages, benefits or else rights for the wrongdoer” – is a widely recognized general principle of law (Lauterpacht, §124; Gabčíkovo-Nagymaros, ¶133). The characterization of a norm as unlawful under municipal law would fail to prevail if there is a contrary international norm (see: Netherlands v Sweden, 67). However, when an act is considered illegal only under municipal law (and international law is silent on the matter) there is little to indicate that the principle of ex injuria shouldn’t preclude the wrongdoer from benefiting in the international sphere. International law does not ignore municipal law; the existence of such law is a question of fact (Serbian Loans, 19; it is also interesting to note that the related clean hands doctrine has been applied in the context of a violation of municipal law: here at 22).

The legality of a change in government is determined by the State’s municipal law (see in this regard: Nicaragua v US (merits), ¶205). In accordance with the ex injuria principle, international law should not allow a regime that came into power illegally to derive benefits from its accession to power. It would subsequently seem that the illegal regime – even where it effectively controls the population – lacks the ability to request that another State intervenes in its assistance. An international community respecting the rule of law should not be readily prepared to assist an entity that came to power out of disrespect for the very principles of the rule of law in its State. For example, in the instance of the illegal coup in Honduras, the General Assembly called upon other States to recognize no other government than that of the Constitutional President (UN Doc. A/RES/63/301). The United States went a step further in the Panama crisis of late 1989 when it authorized the use of force in the latter on the basis of – inter alia – the consent of a democratically elected leader clearly lacking any control of the country (see e.g.: Agora: US Forces in Panama: Defenders, Aggressors or Human Rights Activists?; Dinstein, §321).

Prof Malcolm Shaw notes that there is an argument suggesting that substantial assistance to a government clearly in the throes of collapse might be questionable as intervention in a domestic situation that is on the point of resolution (Shaw, 1152). This stance is furthered by the notion that consent for intervention “must be so clearly evidenced, both in terms of the relevant instruments and circumstances, as to dispel any possible or actual doubts” (Orakhelashvili, 381). As interventions can be drastic and game-changing measures, having serious repercussions for the people of the State (we need look no further than the effects of the Soviet invasion of Afghanistan) there is an even greater urgency in avoiding them in times of lack of clarity.

As demonstrated above, situations of two governments – one effective and one legal – are characterized by their murkiness and perplexities. We have seen that in these instances, there are strong arguments against allowing either one to request an intervention from another State.  Therefore, not only as a matter of policy would it seem that in cases such as these, neither the de facto government nor the de jure government – when each stands alone –  should be able to request an intervention, but it would also seem that this is a possible conclusion as a matter of law. In any event and based on the foregoing, it would appear that in the present situation, Russia cannot base its intervention on a request for assistance from Yanukovich – the head of a de jure government at best.