Legal Dynamics and Strategic Consequences of the Ukrainian Crisis Michael Kötter
Independence Square - the heart of the Euromaidan protests

After a series of events taking place in Kiev in the month of February, a clear result of the opposition to the Ukrainian-Russian plan, signed after a failed promise of President Yanukovich to strengthen economic relations with Europe (in a context of revolution- EuroMaidan and sparking unrests consisting of clashes between protestors and law enforcers) the government collapsed and was replaced by an interim government. Russia refused to recognize it, after defining the revolution a “coup d'etat”. The Revolution was followed by protests in the South-Eastern regions, annexation of Crimea and federal city Sevastopol to Russia, and massing of Russian troops at Ukrainian border.

The case of EuroMaidan proved the weakness of Russia-NATO relations, started in 1991 and enriched by joint programs of cooperation afterwards, which the North-Atlantic Organization decided to suspend on 1 May 2014, in response to Western accusations to Ukrainian crisis, violation of UN law, international humanitarian law and tentatives of controversy resolution.


With the Security Council failing to adopt the draft resolution on Ukraine on 15 March, the action was moved into the General Assembly on 28 March, adopting the resolution “Territory integrity of Ukraine”, that reaffirms Ukrainian sovereignty and integrity, declares the referendum on Crimea illegal, and calls for a political solution.
The issue is the following: “determining what the Council can do to address the critical situation”. What is obvious is that being Russia one of the five permanent member states of the Security Council, the controversy is far from being solved in the tables of negotiations in New York and the UN far from being the legally called conciliator (Chapter VI, UN Charter) or regulator (Chapter VII, UN Charter), unless the principle of “nemo iudex in res sua” would find application.

Currently there are still debates on the legal issues of the Ukrainian crisis, resumable as twofold: first, whether Russia has violated international law, territorial integrity and independence of Ukraine; second, legality of the referendum.


Considering the first issue, it has been debated that Russia has violated provisions under the UN Charter. Article 2 of the UN Charter establishes in the paragraph 3 the “obligation to settle disputes by peaceful means” and “prohibits the use of force or threat of force against another State's territorial integrity or political independence” (paragraph 4). In fact, the only circumstances in which the use of force is permitted are the following; in case the Security Council has authorized the use of force under Chapter VII to maintain peace and security, or whether a state or a group of states exercises the right of self-defence under Article 51, UN Charter. 


But it is correct to remind that debates have brought to criticize Russia, in terms of violation of international law, not just in reason of violation of the UN Chart. Indeed, Russian actions are violating the 1975 Final Act of Helsinki Accords, which reaffirms the obligation to respect other states' territorial integrity. But these are just two of the numerous instruments violated, others being the regional Black Sea Fleet Agreements, the Budapest Memorandum. 


Russia-Ukraine Friendship Treaty, though, is what the expert group of leaders in foreign affairs of the Russian government has provided some legal covers to Russian Actions (as Article 12 requires the “protection of Russian origin ethnic minorities”, actually a very strategic and historical principle, used by United States in Panama and Grenada, or NATO for acting in Kosovo). 


Despite all the accusations and mentioned violations, Russian expert leadership is able to deflect what has been done, in favour of its ambitions.

Regarding the second big legal issue, Ukraine's position is strongly backed by United States, and denounces the annexation of Crimea, as being unconstitutional and violating principles and norms of international law. The Ukrainian President has the power, under Article 137 of the Constitution, to suspend any illegal act passed by the Crimean government.


Though, a greater problem relates to the legitimacy of the Ukrainian government, due to Russian position considering it illegitimate, so that the referendum can appear as a clear result of facing the so-called coup d'etat. Furthermore, the way the Parliament didn't rich the absolute majority to resign Yanukovich in reason of impeachment, is widely argued by Russian vision of illegitimate present Ukrainian leadership.
But the strongest argument could be that the International Court of Justice doesn't state any prohibition for unilateral independence declaration: “Declaration of independence may violate domestic legislation. However, this does not make them violations of international law”.

To date, Security Council meetings have mostly turned around statements on the crisis. As said, the Russian status of permanent member of the Council will block any vision in disagreement with the one of Russian government. This is effectively right, unless Russia will not be able to exercise its own veto, following the mentioned principle of international law “nemo iudex in res sua”, under Article 27 UN Charter. This is possible only if there will be a discussion on whether or not it was a party or not to the dispute, and whether it should abstain or not from voting (if it is/was a party of the dispute, it shouldn't vote). Also, as de facto praxis of the UN legislation and action, Ban Ki Moon excluded any military intervention, as Action under Chapter VII is unique more than sporadic.

Some implications, deductible from such a legal background, are applicable to geostrategic and geopolitical views. On the one hand, Kremlin has the intention to focus on a federated Ukraine, with the purpose of dismembering the country - more than protecting Russian minorities and avoid it to enter into the European orbit. So here is the reason of showing such a clear powerless profile of the Ukrainian State, not able to control its will and territories. Of course, Russian leadership is prepared to argue and persuade - as Lavrov’s convincing argumentations do, perhaps more than the equivalent Western crucial positions.

On the other hand, the “Russian bear” is in contrast with a compact Western strategy, an opposed vision to Russian ambitions in Eastern Europe. Western allies through the thalassocratic NATO move together to defend their interests. That is in fact the reason why Poland has invoked Article 4 of the Atlantic Pact after Ukrainian revolution, under which “the parties will consult together whenever, in the opinion on any of them, the territorial integrity, political independence, or security of any of the parties is threatened”. Recently the NATO military forces began to strengthen military exercises, with a full calendar of scheduling.

As a European diplomacy chief, Mogherini reminded: “European Union and Russia don't have a strategic plan of action and cooperation anymore, and it is necessary to strengthen the security for European States with common boundaries with Russia”. The summit in Wales will set a rapid force for reaction, able to be dislocated in 48 hours for the defence of any of NATO State, reminding that the “casus foederis” under Article 5, will always be invoked, if necessary, by any of the members of the alliance, by letting the others know this represents the heart of the Atlantic itself. This is just one of the measures taken by the Western countries, not considering the large range of economical sanctions undertaken.
So finally the question is: will these great tensions avoid a full integration of Europe, or will Russia isolate them? 

Edited by: Lilit Mkrtchyan
Photo credits: СмdяСояd via Compfight cc