The International Bar Association (IBA) condemns Russia’s incursion into Ukraine as a violation of the United Nations (UN) Charter and calls for an independent international investigation into the matter.
IBA President Michael Reynolds said, ‘The longstanding principle of territorial integrity is enshrined within the UN Charter, and underpinned by the inviolability of borders and state sovereignty. Russia’s military intervention in Ukrainian territory without consent violates those principles and is a clear breach of the UN Charter.’ He added, ‘Ukraine’s sovereignty and territorial integrity must be respected.’
On Saturday 1 March 2014, Russia’s Parliament convened a special session and approved President Vladimir Putin’s request to send troops into Ukraine. Russian soldiers have since occupied airports, communications hubs, and Ukrainian naval headquarters, and have surrounded Ukrainian military bases in the Crimean Peninsula. In response to these provocations, Ukraine has mobilised its military and remains on full alert.
IBA Executive Director Mark Ellis said, ‘Ukraine is a sovereign state; Russia, as a UN Member State, is bound by the UN Charter’s prohibition on the use of force against it. The prohibition against force has only three exceptions: when authorised by the UN Security Council under Chapter VII; when there is consent from the territorial state; and when it is in self-defence. The first two exceptions do not apply in this case, as the Security Council has not issued a Chapter VII resolution authorising Russia to use force, and Ukraine has not consented to Russia’s military intervention. The third exception of self-defence applies only in response to an armed attack. Ukraine has not perpetrated an armed attack upon Russia and accordingly Russia cannot employ the self-defence exception.’ Quoting Article 2(4) of the UN Charter Dr Ellis added, ‘International law is highly proscriptive of the use of force against another state, stating, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”’ He concluded, ‘Deploying one state’s armed forces into the territory of another state without consent falls within Article 2(4)’s prohibition.’
Russia claims to be acting in accordance with international law, citing a threat from ultranationalists and the duty to defend Russian nationals in Ukraine. While a ‘defence of nationals’ concept has been invoked before in international law, this has been in situations where a state’s nationals are under direct attack, taken hostage, or generally in a situation threatening grave bodily harm. There has been no such threat to Russian nationals in Crimea. Even if Russia’s version of recent events in Ukraine is accepted – namely, the seizure of power by ‘fascists and ultra-nationalists’, threats of violence against ethnic Russians and Russian religious sites, and threats to Russia’s national interests – these are not, either singly or collectively, recognised grounds for the violation of another state’s territorial sovereignty or for deploying armed forces on that state’s territory.
At the emergency UN Security Council meeting on Ukraine on 3 March 2014, Russian Ambassador Vitaly Churkin read a statement from Ukraine’s ousted president, Viktor Yanukovych, who requested President Putin deploy armed forces to restore peace to Ukraine. However, Article 85(23) of the Ukrainian Constitution explicitly confers the power to approve the presence of foreign troops on Ukrainian territory on the Verkhovna Rada (Ukraine’s Parliament) and, therefore, Mr Yanukovych did not have the legal authority to invite intervention.
The request from the Chairman of the Council of Ministers for the Autonomous Republic of Crimea also does not constitute a legal basis for intervention, as Crimea derives its legal foundation as an autonomous republic from the Ukrainian Constitution and Ukrainian law, which also specifically provides that Crimea is within the administrative and territorial structure of Ukraine.
Apart from the general principles of international law, by signing the ‘Memorandum on Security Assurances’, in Budapest on 5 December 1994, Russia (along with the United States and the United Kingdom) expressly accepted the obligations in a legally binding instrument ‘to respect… the independence and sovereignty and the existing borders of Ukraine’ and ‘refrain from the threat or use of force against the territorial integrity or political independence of Ukraine.’
Mr Reynolds concludes, ‘Another relevant principle of international law is the simple point that the UN system, created in the aftermath of World War II, is one of avowed collective security. Under that system, the UN Security Council has primary responsibility for monitoring, and reacting to, threats to world peace. Russia, like its fellow permanent members of the Security Council, has a special role and degree of responsibility in maintaining that system of international stability.’
Notes to the Editor
(1) The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership of individual lawyers, law firms, bar associations and law societies it influences the development of international law reform and shapes the future of the legal profession throughout the world.
The IBA’s administrative office is in London. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, US, while the International Bar Association’s International Criminal Court Programme (IBA ICC) is managed from an office in The Hague.
The International Bar Association’s Human Rights Institute (IBAHRI) works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
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