Anyone who has been on a social media site or read a newspaper in the past few days would have come across something about Russia and Ukraine. For those in the dark, some context might be helpful.
Civilian protest has been ongoing in Ukraine since late-2013 in response to President Yanukovych’s (more on whether he is still President later) refusal to sign an agreement for deeper integration with the European Union. The movement evolved over time and became an anti-government movement with the government responding with anti-protest laws to maintain law and order. Such was the tempo of the movement that President Yanukovych is reported to have fled to a spa-hotel near Moscow. On March 1, 2014, President Vladmir Putin’s request for possible military action was allowed by the Russian Parliament. Since then we have had President Barrack Obama call his Russian counterpart and express the United States of America’s position in case of a Russian military intervention. The Ukrainian Ambassador to the United Nations has alleged that Russian military has been deployed in the Crimean Peninsula and Russian airforce has entered Ukrainian airspace on multiple occasions. Russia has justified its intervention as one based on an invitation by President Yanukovych. The Security Council held an emergency session day before yesterday but no action was taken.
USA is trying to push an aggressive policy when it comes to Russian intervention in Ukraine. Russia of course justifies its conduct as falling within the lines of international law. Surprisingly USA does not have complete support from its NATO partners. Germany and France are both reluctant to push for trade sanctions against Russia considering their deep ties. UK too would not be very happy to go toe to toe with Russia considering the heavy investment in the City of London by Russian billionaires – Abramovich-Chelsea
Now many are arguing that President Putin has overplayed his hand and the West will respond with either an all-out military assistance to Ukraine or in the very least harsh sanctions. The opposite view, and this is the one I subscribe to, is that Putin is reasonably confident that the West (USA+Europe) will not take any strong measures in light of economic ties of Russia with USA’s European allies. Moreover, USA’s domestic financial condition is not good enough for it to engage in an all-out war against Russia. If like Abkhazia and South Ossetia, Russia is able to gain de facto control over Ukraine and its government, then Russia would be sending out a strong message, not to mention make itself even more important to Eurasia. This intervention could very well be a defining moment – how Russia sees its role in the world; what USA is or is not willing to do in response to Russian muscle flexing; where do USA’s traditional allies fall on this one.
Coming to the law. An intervention of this nature raises certain questions:-
- Who speaks for Ukraine? President Yanukovych or Acting President Oleksander Turchynov?
- Does Russia’s intervention constitute use of force? If yes, then does Russia have a defence under international law. If no, then what can be done now?
- What are the possible political ramifications of Russian intervention in Ukraine?
1. Who speaks for Ukraine? President Yanukovych or Acting President Turchynov?
Who speaks for Ukraine is a question of recognition and credentials. Russia claims that President Yanukovych remains the President of Ukraine whereas the US State Department maintains that President Yanukovych by leaving Kiev and Ukraine has lost legitimacy. These are classic positions that are always taken in recognition battles. We have seen this earlier in the cases of China, Hungary, Congo-Leopoldville, Yemen, Cambodia, Afghanistan, Haiti, Yugoslavia, and Libya. In such cases the United Nations’ response is generally a good indicator of which government is recognised. As mentioned above the Ukrainian Ambassador to the UN has taken an anti-Russian position in his letter to the Security Council, much like Acting President Turchynov. Thus, the present interim administration seems to have a strong position insofar as the UN is concerned in that the UN is entertaining communications from them on behalf of Ukraine. While the positions I outline are true insofar as international law is concerned, I urge the readers to take them with a pinch of salt as political considerations often trump all else when it comes to international law.
Both Russia’s and USA’s arguments have certain problems. International law gauges who is entitled to speak for a state on various parameters, however, the classical test remains that of effective control. That President Yanukovych does not seem to have. However, loss of effective control over a substantial area or even loss of effective control over the whole state does not automatically deprive a government of its legitimacy. International law preserves status-quo until stability is restored to assess who is the legitimate representative of the state. Of course, political considerations often override law and despite the whole of Mainland China being out of the Republic of China’s control, Republic of China was recognised as the legitimate representative of the Chinese people until 1971. Same was the case with the Taliban government not being recognised despite having effective control. Another vital element in the recognition test is independence from external influence – puppet governments are ideally not recognised. Lastly, in recent times democratic origins are also factored into the decision-making process owing the the spread of Western liberal thought across the world. However, it is not a formal criterion for legitimacy. Thus, a possible way of putting forth the test for recognition is – a government that has effective control over a reasonable period of time and is considerable independent from external influences.
If the above test is applied, then the interim-government seems to be top dog for international recognition. It has both effective control and the will to govern. As far as independence is concerned, it seems evident that Yanukovych is deeply reliant on Russian ‘assistance’ whereas the interim-administration is on surer ground. Also vital is the fact that Ukraine’s Ambassador to the UN does not need to pass a credentials test until come September when the next General Assembly Session commences (all states send Ambassadors to the UN. If a state has an ongoing recognition battle like in Ukraine, it is often seen that two ambassadors claiming to represent the state show up in New York. The Credentials Committee of the General Assembly decides who gets to represent the state. USA, Russia and China are by convention always in the Credentials Committee and opposition by one of them is generally sufficient to put the question of recognition on hold). With him already in place, Russia cannot prevent him from supporting the present administration.
Regardless of who speaks for Ukraine and completely mindful of the human rights situation in Ukraine; purely from an academic point of view, the question of recognition of governments is a riveting one. It blends law with politics seamlessly and has a greater impact on our lives than we know or would like to believe.
(Part 2 will be up by tomorrow evening. As always comments are welcome.)