Associate Professor of the Kyiv Institute of International Relations (KIMO), Mykola Gnatovsky, explains which legal norms have been violated by Russia in Ukraine.
02.03.2014 02:36 Liga.net
Translated by Natalia
The grounds upon which the Russian Black Sea Fleet (BSF) is stationed in Ukraine is regulated by several agreements. Base locations are defined in Articles 2 and 3 of the Ukraine-Russia Agreement on the Parameters of the Black Sea Fleet Division of 1997 and are further detailed in Addendum 2 and 3 of this Agreement.
Articles 6, 8 and 12 of the Agreement on the Status and Conditions of Stationing of the Black Sea Fleet of the Russian Federation in Ukraine define the order of movement of vehicles outside the BSF stations and organisation of exercises. These Articles envision the need for obtaining the coordinated agreement of Ukraine for these actions. However, the order of obtaining an agreement has not been regulated properly which has already led to conflictual situations several times.
What points of the agreements and international law have already been violated by the actions of Russia in Crimea? Here is the opinion of Mykola Gnatovsky, Associate Professor at the Kyiv Institute of International Relations:
1. Information about the events in Crimea indicate an apparent violation of Russian principles of international law enshrined in the UN Charter which are mandatory and form the basis of the international legal order. Moscow’s explanations demonstrate a conscious effort to mislead public opinion.
The conversations about “the Crimean authorities” who allegedly invited the Russian army are legally untenable not only because these “authorities” are self-proclaimed and illegitimate, but mainly because Crimea is not a subject of international law. The territory of the peninsula in international relations can be represented only by Ukraine. Any, even the most legitimate local government elected in Crimea, cannot have the authority to act independently in the international arena and invite foreign military. Therefore, the military occupation of Crimea that has been evolving over the last few days is fully consistent with the definition of aggression outlined in the Resolution 3314 (XXIX) of 14 December 1974.
2. There has been violation of the principle of international law prohibiting the threat of use force against the territorial integrity or political independence of another state (Article 2, paragraph 4 of the UN Charter, reinstated in the Declaration on Principles of International Law of 1970 and the CSCE Helsinki Act of 1975). Other related principles, in particular, the principle of non-interference in internal affairs and the principle of the territorial integratey, and the inviolability of borders, have also been violated.
The norms of several bilateral treaties between Ukraine and Russia such as the Treaty on Friendship, Cooperation and Partnership of 1997 and the agreements on stationing of the BSF of the Russian Federation in Ukraine have certainly been breached. These violations are systemic in nature and relate to the most important provisions of these agreements.
3. In the legal domain, Russia’s actions in Crimea provide grounds for Ukraine to exercise the inherent right to individual or collective self-defence enshrined in the Article 51 of the UN Charter. It is advisable for Ukraine to conduct urgent consultations with states that are potentially ready to support Ukraine to repel foreign aggression. However, the existence of the right to self-defence does not mean that it is subject to immediate exercise without taking into account real military prospects and potential tragic consequences (primarily, humanitarian) of an armed conflict. In this regard, an assessment of the situation should be carried to a lesser extent by legal experts, but by the military and politicians. Thus, all opportunities for resuming a dialogue should be used.
Ukraine should certainly continue to work actively within the United Nations seeking a Resolution of the Security Council which would state clear requirements to stop Russian aggression and withdraw the Russian military to their permanent deployment. The permanent membership status in the Security Council gives Russia significant powers to block the work of this body, but the legal and diplomatic resources within the UN should still be used fully and on an ongoing basis. In addition, Ukraine should fully exploit all other possibilities, particularly within the framework of European regional organisations, cooperation with NATO, etc.
International law allows the affected state, in this case Ukraine, to undertake countermeasures in order to compel the offender to comply with its international obligations. Ukraine has a chance, if it considers it worthwhile, to stop implementing any of its obligations under bilateral agreements with Russia, and to end some of them (e.g. related to stationing of the BSF in Ukraine) referring to point 1, Article 60, of the Vienna Convention on the Law Treaties of 1969.
The array of legal options is large, as fundamental and universally recognized principles and norms of international law have been breached in relation to Ukraine. However, one should carefully consider measures permitted under international law taking into account all possible consequences.
Let us recall that on March 1, 2014, the Federation Council of the Russian Federation approved the Russian army entering the territory of Ukraine. Earlier, Russian President Vladimir Putin applied to the Federation Council citing “the extraordinary situation” in Ukraine, the threat to lives of citizens of Russia and the personnel of the Russian Armed Forces in Ukraine. The Ukrainian authorities have stated that they consider such action aggression and military intervention. The army of Ukraine has been transferred to full combat readiness, and the Russian side has been warned about possible tragic consequences for both sides in the event of an invasion of Russian troops into Ukraine.
NATO members expressed the need for an emergency NATO meeting about the actions of Russia against Ukraine. NATO urged Moscow to abandon attacks against Ukraine. The Defence Ministers of the EU and the U.S. held emergency talks. U.S. President Barack Obama held an hour and a half phone conversation in order to convince the Russian leader Vladimir Putin to renounce his plans, threatening with the international isolation of Russia.