Ukraine Insta-Symposium: Intervention in the Ukraine by Invitation

[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.

As a general matter states have the right to invite foreign forces on to their territories.  The invitation functions as consent to conduct that would otherwise be a clear violation of Charter Article 2(4).  Critically, it is the state that gives the consent and thus the invitation must come from an entity or official empowered to speak for the state.  In the Nicaragua case, the ICJ described the consequences of this agency principle in situations of internal conflict: a government can issue an invitation but an opposition rebel group cannot:

it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the interna1 affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law.  [para. 246]

There has been much scholarship challenging this astonishingly broad principle.  The Nicaragua formulation takes no account of how much territory a government actually controls: virtually the entire nation or just the area around the capital?  More importantly for present purposes, the formulation takes no account of the quality of governance offered by an incumbent regime or rebel group.  Thus, a genocidal autocracy fighting a democratically-inclined insurgency is treated identically with a freely-elected government fighting rebels who promise a bloodbath upon attaining power.

I will address these governance questions shortly.  But it is important to be clear that general formulation in Nicaragua has not changed.  The best recent evidence is the Security Council’s response to the civil war in Mali in 2012-13.  The Malian government requested French assistance in defeating an Islamist insurgency that had captured large portions of territory in the northern part of the county.  On January 11, 2013 France began airstrikes against the rebels and deployed troops to Mali.  On 25 April 2013 the Security Council welcomed “the swift action by the French forces, at the request of the transitional authorities of Mali, to stop the offensive of terrorist, extremist and armed groups towards the south of Mali.” It also created a peacekeeping mission and authorized the remaining French troops to use “all necessary means” to support the mission in times of crisis, upon request of the Secretary-General.

If Yanukovych did not speak for Ukraine on March 1, therefore, the Nicaragua formulation easily deprives his invitation of any legal value.

The flip-side of the Nicaragua formulation – that non-state actors cannot issue invitations – effectively disposes of the invitation by the Prime Minister of the Crimea.  The Prime Minister is not empowered to speak for the state.  To the extent the invitation might be justified by a Crimean claim to self-determination, that claim runs aground on the lack of a legal entitlement to use force to achieve autonomy or independence.  Because international law does not vest the Crimea itself with a right of forceful separation from Ukraine, it does not permit external assistance to accomplish the same end.  The Independent International Fact-Finding Mission on the Conflict in Georgia examined such a claim by South Ossetian authorities:

Military force is never admissible as a means to carry out a claim to self-determination, including internal self-determination. There is no support in state practice for the right to use force to attain self-determination outside the context of decolonization or illegal occupation. . . .  This also means that a secessionist party cannot validly invite a foreign state to use force against the army of the metropolitan state. [p. 279]

But what of the factors omitted from the Nicaragua formulation: lack of full territorial control and qualitative aspects of governance?  As for territorial control, Russia might argue that by March 1 the central government in Kiev had lost control over the Crimea.  Even if this were true it does not follow that Yanukovych could issue a valid invitation to invade the territory.  First, factually, it was not at all clear that Yanukovych himself exercised any control over the Crimea; in the letter quoted by the Russian ambassador Yanukovych claimed only a legal entitlement to remain as President.  Second, the trend in contemporary scholarship is to hold that in states experiencing territorially divided civil wars neither side may invite foreign forces. This “negative equality” doctrine usefully avoids the difficult question of whether an invitation from either side has been properly issued and thus “relieves lawyers of the difficult task of identifying and proving a valid invitation.” [p. 279].  Negative equality is also seen as helping avoid escalating civil wars into international conflicts.  Thus, the Institut de Droit International declared in 1975 that “third States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another state.”

Second, the Mali episode suggests that lack of control over territory has no effect on an invitation when qualitative governance factors point in the other direction.  Thus, to the extent the international community (or some critical part thereof) would oppose Yanukovych’s return to power because he is repressive, corrupt, divisive, etc., the government’s failure to control the Crimea may make no difference.  In Mali, the Security Council strongly supported the incumbent government and denounced the rebels.  It authorized an African-led force to “support the Malian authorities in recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups and in reducing the threat posed by terrorist organizations.”  The Council’s support for the government and its invitation to France was apparently unaffected by the entire northern part of the country having been captured by the rebels, who proclaimed their independence from the central government.

What of the qualitative factors themselves?  The traditional view of a regime’s entitlement to speak for the state rested on effective control.  If this view continues to reflect contemporary international law, as my colleague Brad Roth argues strongly that it should, then the invitation did not come from the Ukrainian state.  But since the end of the Cold War, questions of recognition have increasingly revolved around democratic criteria, specifically whether a regime has been chosen in free and fair elections.  Apart from this general trend, three episodes may support the idea that an invitation should be judged, at least in part, on the inviting regime’s democratic bona fides:

• Haiti 1994:  ousted President Jean-Bertrand Aristide invited the international community to take “prompt and decisive action” to restore him to office.  The Security Council, taking note of Aristide’s request, authorized a multinational force to remove the usurping junta.
• Sierra Leone 1998: ousted President Tejan Kabbah appealed to Nigeria, then heading ECOWAS, to restore him to power.  An ECOWAS force deposed the junta in February 1998 and Security Council praised the action.
• Côte D’Ivoire 2011: , the Security Council recognized Alassane Ouattara as the winner of elections held in November 2010, prevailing over Laurent Gbagbo, the incumbent, who disputed the result and refused to leave office.  Shortly thereafter, Ouattara requested that ECOWAS intervene to remove Gbagbo from power. The Security Council did not respond directly to this request (not surprisingly, since it was directed to another body) but on 30 March 2011 passed Resolution 1975 authorizing a peacekeeping mission then in country to “use all necessary means” to protect civilians.  On 4 April UN and French forces attacked Gbagbo’s camps and Gbagbo capitulated one week later.

These cases share three critical factors not present in the Ukraine: the elections bringing the inviting party to power had been monitored by the UN; the Security Council had recognized the inviting party as the legitimate government of the state; and it had authorized the use of force under Chapter VII, thus calling into question the legal significance of the invitation standing alone.

But even if one were to inquire into the relative democratic credentials of Yanukovych and the new regime, the answer is not entirely clear.  This is not a case of an elected leader being forcibly evicted from office, the quintessential scenario for “democratic protection” regimes now operating in some regional organizations.  There are heated disputes among the Ukrainian parties as to whether Yanukovych was properly removed from office.  The February 22 Parliamentary resolution declared that Yanukovych had “in the non-constitutional manner withdrawn from performing constitutional powers and is the one that does not perform his duties” and set new elections for May 25 [Translation by Ukrainian Mission to the UN].  It is unclear whether the Parliament was simply acknowledging Yanukovych’s departure from office as a fact or if it had, by its own action, ousted him from office.

The new regime points to his flight from office during a national crisis and the overwhelming vote of ¾ of members of Parliament, including many members of his own party.  It seems to rely on both to legitimize the transition, describing Yanukovych’s failure “to exercise his official duties as the head of state” as a “legal fact” supported “by the Parliament of Ukraine by constitutional majority vote.”  Some also suggest obliquely that this was more in the nature of a revolutionary event than a legally sanctioned transition and thus cannot be evaluated by prior constitutional norms.  Yanukovych supporters argue that none of the procedural requirements for Presidential resignation or impeachment were met.  [Note that while there is some dispute as to whether the 1996 or 2004 constitution was in effect, the articles on Presidential removal in the two documents are identical].

The two sides in the Security Council drew opposing conclusions from these muddy issues of national law.  The UK ambassador argued,

We are talking about a former leader who abandoned his office, his capital and his country; whose corrupt governance brought his country to the brink of economic ruin; who suppressed protests against his Government leading to over 80 deaths; and whose own party has abandoned him. The idea that his pronouncements now convey any legitimacy whatsoever is far-fetched and in keeping with the rest of Russia’s bogus justification for its actions. The Government in Kyiv is legitimate and has been overwhelmingly endorsed by the Ukrainian Parliament. [p. 7].

The Russian ambassador was equally colorful:

I am trying to imagine what would happen if, while President Obama was in California, Mitt Romney turned up at the White House and the United States Congress, in one House of which there is currently a Republic majority, all of a sudden voted to impeach President Obama. How would United States public opinion react to that? Would that be a manifestation of democracy? That is exactly what happened in Ukraine.  [p. 16]

These are arguments beyond even the bounds of emerging democratic notions of regime legitimacy.  They turn not on broadly conceived democratic principles but the particulars of national constitutional law.  While a few international recognition decisions have been premised on disputed interpretations of national law – the 2009 coup in Honduras may be the prime example – they are not common and do not reflect agreed principles.  As a result, the effective control doctrine remains the most reliable way of determining who was authorized to issue an invitation on behalf of the Ukraine on March 1.  That person was not Viktor Yanukovych.