What Russia has violated in Crimea - Eastern Partnership Civil Society Forum

02.03.2014

Associate Professor of the Kyiv Institute of International Relations (KIMO) Mykola Gnatovsky explains which legal norms have been violated by Russia in Ukraine.

The basis for the Russian Black Sea Fleet (BSF) stationing in Ukraine is regulated by several agreements. Locations are defined in Art. 2 and 3 of the Ukraine-Russia Agreement on the Parameters of the Black Sea Fleet Division of 1997 and are further detailed in the Annexes 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 envisage a need for obtaining an agreement of Ukraine for these actions. However, the order of obtaining an agreement has not been regulated properly which has already led to conflict situations several times.

What points of the agreements and international law have already been violated by the actions of Russia in Crimea? Here is an opinion of Associate Professor of the Kyiv Institute of International Relations Mykola Gnatovsky:

1. Information on the events in Crimea indicates an obvious violation by Russia of the fundamental principles of international law enshrined in the UN Charter which are mandatory and form the basis of the international legal order. The explanations of Moscow demonstrate a conscious effort to mislead the 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 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 which prohibites threatening with the 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 integrity 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, Cooperaton and Partnership of 1997 and the agreements on stationing of the BSF of the Russian Federation in Ukraine have been undoubtedly 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 for individual or collective self-defense 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-defense 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 establishing 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 demands to Russia to stop aggression and withdraw the Russian military to their permanent location stations. The permanent membership status in the Security Council gives Russia significant powers to block the work of this body, but Ukraine should still use legal and diplomatic resources within the UN fully and continuously. In addition, Ukraine should fully exploit all other possibilities, namely 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 use of the Russian army on the territory of Ukraine. Before that, Russian President Vladimir Putin asked the Federation Council for permission motivating it by “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 an action as aggression and military intervention. The army of Ukraine has been prepared to full combat readiness, and the Russian party has been warned about possible tragic consequences for both sides in case of the invasion of Russian troops into Ukraine.

NATO member states requested an emergency NATO meeting to discuss actions of Russia against Ukraine. NATO urged Moscow to cease attacks against Ukraine. The Defense Ministers of the EU and the U.S. held emergency talks. U.S. President Barack Obama held an hour and a half conversation in order to convince the Russian leader Vladimir Putin to renounce his plans and threatened with international isolation of Russia.

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