Both Barack Obama and David Cameron have said that Russia has violated Ukraine’s sovereignty and territorial integrity in breach of international law. The EU Council of Ministers have referred to Russian acts of aggression. Has Russia broken international law?
Many of the facts are disputed and the narrative changes daily. The international community is divided and the UN Security Council in particular will not be able to reach a united view; the UN Secretary-General speaks merely of de-escalation and peaceful settlement of disputes based on the principle of territorial sovereignty.
Despite the many controversies in recent years regarding the limits on military action by states, the starting point for international law in this area remains Article 2(4) of the UN Charter. Article 2(4) prohibits threats or use of force against another state. This prohibition is also a principle of customary international law. The UN Charter sets out only two exceptions: actions in self-defence and actions on the basis of a Chapter VII resolution of the UN Security Council.
Do the events of the last week amount to a threat or use of force by Russia? The Russians have denied that their forces in Ukraine are doing anything more than protecting their military bases. However, this is strongly disputed by the interim government in Ukraine and by leading Western states.
Irrespective of whether Russia’s acts thus far amount to a use or threat of force against Ukraine, Russia has asserted the need to protect its nationals and military forces inside Ukraine, threats posed to ethnic Russians living there and to the Crimean population generally, authorization by the legitimate government of Ukraine (and Crimea) and rights granted under a bilateral treaty on the stationing of Russian troops in Ukraine.
It is generally accepted that the right of self-defence includes the right of a state to protect its military assets outside its territory. For Russia to rely on self-defence though, it needs to demonstrate that an armed attack has taken place against it or that such an attack is imminent, that its use of force was necessary to end or prevent the attack, and that the force used was proportionate to that need. Credible reports of such a threat or attack are not apparent.
The legal basis for using force to protect nationals abroad is more debatable but even if it is accepted, force would be justifiable only if necessary. Credible evidence of threats against Russian citizens currently in the Ukraine has not emerged. Moreover, the ability and willingness of Ukraine to protect such individuals would be relevant.
Russia’s reference to the need for protection of people more generally takes us into an even more controversial area of international law. The concept of Responsibility to Protect (R2P) emphasizes the responsibility for collective action where a state fails to protect its own citizens. In itself, though, it is not generally accepted as a legal basis for the use of force. Some states, such as the UK, have asserted a right under customary international law to use force to prevent extreme humanitarian distress where no other options are available. However, the ‘right of humanitarian intervention’ remains controversial and Russia has denied its legal foundations in other situations. Even for humanitarian intervention supporters, the situation on the ground would seem far from its high threshold.
Consent to military action removes any issue under Article 2(4) of the UN Charter (and customary international law). Russia has stated that Yanukovych is still the legitimate leader of Ukraine (despite Putin’s comments that he has no political future) and, in that role, has requested its military intervention. In promoting Yanukovych’s authority, Russia argues that the Ukrainian parliament acted unconstitutionally when voting to strip him of office. Whatever the implications of the Ukrainian parliament’s actions under Ukrainian law, international law is only concerned (for the purposes of establishing consent) with identifying who has effective control over the state. Determining this in situations of extreme political crisis is not always straightforward. Despite the interim government indicating that it has lost control of the Crimea to the Russians, the Russian assertion that Yanukovych is still competent to invite military intervention on their part is not easily sustained.
Western leaders have repeatedly asked Russia to abide by the terms of the 1994 Budapest Memorandum where Russia, the UK and the US reaffirmed their obligations to ‘refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations’. This was in return for Ukraine giving up its nuclear weapons – but the Memorandum only reaffirms, and does not add to, the existing obligations under international law.
The 1997 Treaty on Friendship, Cooperation and Partnership between Russia and Ukraine reflects similar sentiments in obliging both states to respect each other’s territorial integrity and sovereignty and to use peaceful discussion as a means to resolve any dispute. As for the 1997 bilateral Agreement on the Status and Conditions of the Black Sea Fleet stationing on the territory of Ukraine, the EU has stated that this requires Russian troops to withdraw to their areas of permanent stationing.
Use of force is not the only legal issue to come out of this current crisis. The outcome of Crimea’s 16 March referendum on becoming part of Russia raises questions concerning territorial integrity and the right of self-determination. The example of Kosovo, where the new state has been recognized by the US and most of the EU, illustrates that international law is slow to condemn instances of secession.
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