The Situation in Ukraine: A Brief Analysis through International Law

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The facts of the case

On February, 21st 2022, President Vladimir Putin of the Russian Federation announced that his government would recognise the independence of the territories of Donetsk and Luhansk, both located within the territory of the Republic of Ukraine.[1] Certainly, the episode brings some remembrance about the events of approximately 8 years ago when the Russian Government recognised the independence of the Autonomous Republic of Crimea -an action considered to be unlawful under international law[2]. Nonetheless, the action anticipated the celebration of Mutual Assistance and Friendship Treaties with the self-proclaimed republics -now recognised by the Russian Government- in which it was provided for the military assistance between the contested territories and the Russian Federation.[3] After the decrees recognising the self-proclaimed republics as independent, sovereign states were signed by President Putin, including the ones containing the mutual assistance and friendship treaties, the Russian Parliament -both the lower chamber or Duma and the upper chamber- ratified them unanimously[4]. Afterwards, President Putin announced in a televised address the deployment of Russian military forces in the territories of the self-proclaimed territories as “peacekeeping forces” under the decrees signed and ratified stating that those actions responded to the threat the possible integration of Ukraine in NATO posed to the security of the Russian Federation, in addition to claiming the actions correspond to Ukraine’s non-compliance with the Minsk Accords[5].

Moreover, the Republic of Ukraine requested an emergency meeting of the UN Security Council to address the situation in its country, especifically the announcement of the Russian Government that military forces would be deployed in the Donetsk and Luhansk regions.[6] During the emergency meeting, the Russian Ambassador to the UN, and current rotatory President of the Security Council, expressed that the claims made by Western delegations that Russia was conducting a full-scale invasion of Ukraine were non-sense.[7] On February 23rd, 2022, President Putin delivered a new televised address where he announced his intention to “demilitarise” and “denazify” Ukraine, including a pledge to Ukrainian military forces to surrender, the justification of his actions as falling into Article 51 of the UN Charter, a warning that any interference with Russian forces would entail harsh consequences, and the consideration of a “special military operation” in Ukraine intended to reduce Ukraine’s military capabilities and protect the Russian-speaking population within the self-proclaimed republics from alleged “genocide”.[8] The speech, that came after the upper chamber authorised unanimously the deployment of Russian forces overseas, interrupted the emergency session of the Security Council scheduled that day, in which the UN Secretary-General pledged directly to President Putin to stop and return his soldiers home.[9] Whilst the Security Council emergency session was taking place, the reports of bombings to military complexes and urban nucleus, direct military engagements between Russian and Ukrainian forces and the massive flux of citizens fleeing the capital, Kyiv, and the bordering regions arrived.[10]

The legal analysis

Under international law, the act by a government to recognise the existence of another state and its government is of political rather than legal nature.[11] In the case of the self-proclaimed Republics of Donetsk and Luhansk, both territories aimed at separating from Ukraine to become independent states.[12] Conversely, the political nature of the act adopted by a government does not preclude the possibility for international law to regulate the situation it intends to recognise.[13] As a result, bearing in mind the territorial integrity and sovereignty of Ukraine as main international obligations founded in the principle of sovereignty enshrined in the UN Charter, the act to recognise the existence of sovereign, independent states within the territory of another sovereign, independent state with which armed engagements have been undergone - as the self-proclaimed republics have relied on the use of force to engage against the Central Government - would constitute an act aimed at rendering lawful a situation created by a serious breach of international law - the violation of the territorial integrity and sovereignty of Ukraine.[14] Thus, for Russia to have provided support and recognition to the self-proclaimed republics to allow them to maintain this condition as “independent, sovereign states” constitutes an act contrary to international law insofar it perpetuates an illegal and unlawful situation towards the international obligations vis-á-vis Ukraine.[15]

Notwithstanding the aforementioned, in the case of Donetsk and Luhansk, their status and consideration would be also discussed with reference to the Minsk Accords -a set of memorandums and protocols drafted during the Trilateral Contact Group meetings under the auspices of the French Republic, the German Republic and the OSCE in Minsk.[16]

Following the text of the Protocol of 1 September 2014, the then Governments of Ukraine and Russia “reached an understanding with respect to the need to implement the following steps'' that included, inter alia, to:

• “Implement decentralization of power, including by enacting the Law of Ukraine on the interim status of local self-government in certain areas of the Donetsk and Luhansk regions (Law on Special Status).” (point 3), and

• “Ensure the holding of early local elections in accordance with the Law of Ukraine on the interim status of local self-government in certain areas of the Donetsk and Luhansk regions (Law on Special Status).” (point 9).[17]

In light of the aim of implementing the terms of the Minsk Agreement, the aforementioned Governments agreed on a Package of Measures for the implementation of the Minsk Agreements of 12 February 2015 that included, but was not limited to:

• “Launch a dialogue, on day 1 of the withdrawal on modalities of local elections in accordance with Ukrainian legislation and the Law of Ukraine “On interim local self-government order in certain areas of the Donetsk and Lugansk regions” as well as on the future regime of these areas based on this Law. Adopt promptly, by no later than 30 days after the date of signing of the document a resolution of the Parliament of Ukraine specifying the area enjoying the special regime, under the Law of Ukraine On interim local self-government order in certain areas of the Donetsk and Lugansk regions”, based on the line of the Minsk Memorandum of September 19, 2014.” (point 4), and the

• “Reinstatement of full control of the state border by the government of Ukraine throughout the conflict area, starting on day 1 after the local elections and ending after the comprehensive political settlement (local elections in certain areas of the Donetsk and Lugansk regions on the basis of the Law of Ukraine and constitutional reform) to be finalized by the end of 2015, provided that paragraph 11 has been implemented in consultation with and upon agreement by representatives of certain areas of the Donetsk and Lugansk regions in the framework of the Trilateral Contact Group.” (point 9).[18]

In the terms of the Vienna Convention of the Law of Treaties, the literal meaning of those provisions do reflect that both parties notably, the Russian Federation and Ukraine, expressed their consent, if considered that those steps fall into documents named as Protocol or Package of Measures for Implementation, to bound themselves to adopt the conduct necessary as to achieve the actions included therein.[19] To that extent, any action or omission attributable to either Russia and Ukraine that does not fall in conformity with the steps to which they expressed their understanding to achieve may constitute a breach of international law and amount to an internationally wrongful act.[20] On that line, it is noteworthy to bear in mind the invocation by Russia of the alleged promise to Mikhail Gorbachev, the then leader of the USSR, by the then NATO leaders, to not expand the membership of the Alliance beyond the 1989 limits.[21] Regardless of the nature of the aforesaid promise, under international law, the non-compliance with an international obligation does not consent nor allow another state to use it as an excuse to preclude the wrongfulness of its own non-compliance.[22] Furthermore, it is applicable likewise the rule whereby a permissible action or conduct under domestic law - in this case, the lawfulness under Russian law of an act or decree recognising the independence of Donetsk and Lugansk and deployment of “peacekeeping forces”- does not translate into a permissible action or conduct under international law.[23]

For Russia to have adopted a decree recognising the independence of the self-proclaimed territories constitutes a breach of the commitments undertaken in the Minsk Protocols inasmuch it contravenes the letter of the Protocols that provided for the celebration of local elections under Ukrainian law and the adoption of a legal regime under Ukrainian law without any reference to or provision for the independence or further recognition of the aforesaid independence by any of the parties.[24] Even if contended that Russia’s actions fall into a reaction to an alleged breach of the promise made to Gorbachev, under international law, it has to be further contended whether the promise existed before examining its legal nature. In that sense, by recalling the terms of the Treaty on the Final Settlement with Respect to Germany of 12 September 1990 - where the USSR and the USA where parties to -, Article 5 possess a limited material scope insofar it only establishes that no further deployment of NATO troops will occur until Soviet troops had abandoned the territory of East Germany, including the express provision that those NATO troops would be of German nationality only excluding nuclear weapons and foreign forces.[25] To enlighten the discussion into the circumstances that led to the adoption of the Treaty, an interview to the then Soviet leader unfolded, in his own words, that no promise was made to him on no further NATO enlargement.[26] Hence, if the main treaty to which the current Russian Government pleads in its support makes no reference to any prohibition of further NATO enlargement, and the then Soviet leader confirmed no promise was made to him by NATO leadership in that time, no valid instrument or source is able to originate any obligation to which, under international law, other states could be bound to observe. As a result, no previous international obligation may be invoked to allegedly preclude the wrongfulness or justify the decision of the Russian Government.

Having clarified no promise existed, and no treaty provision precludes the decisions of NATO enlargement, the analysis points now to the lawfulness of the Russian Government decision to recognise the self-proclaimed republics and the deployment of military troops. Bearing in mind the Minsk Protocols provided no reference to the independence of the self-proclaimed territories, that the applicable international obligations binding Russia towards Ukraine and the international community provide for the respect to territorial integrity and the prohibition of the threat or use of force, no further assertion can be construed as to determine whether the self-proclaimed territories can claim the lawfulness of its decision to secede from Ukraine under the right of self-determination, it is unlikely the situation may constitute a consistent action or conduct under international law.[27] As established under international law, for the right to concur, the territory involved must comprise a people in the terms of the resolution, and be either conquered or under domination, occupation by a foreign military presence, or under a colonial regime, or under international administration.[28] Given the cumulative nature of the conditions, when established that the situation in the self-proclaimed territories do not fall into any of the situations indicated in the resolution, as the territories are currently ruled by separatist militias without any direct state affiliation in direct confrontation with the Ukrainian state forces, the right of self-determination cannot justify nor legitimise the act of self-independence.[29]

Nonetheless, we would examine the effects of the act of recognition adopted by the Russian state towards the sovereignty and territorial integrity of another state, Ukraine. According to international law, no harm or damage is required for an international wrongful act to concur, therefore, the mere adoption and entry into force of the decree recognising the self-proclaimed territories as independent states is sufficient to establish whether an international obligation was breached or not.[30] Having likewise established that the alleged non-compliance of the terms of the Minsk Protocols by Ukraine cannot void the obligations to which the Russian state is bound to observe, the adoption of the decree can be examined as to its lawfulness under the international obligations assumed by Russia.[31] According to the Articles of Responsibility of States for Internationally Wrongful Acts (ARSIWA), the decree signed by the President of the Russian Federation constitutes an act or conduct by a state organ, taking into account the act of the acts of a Head of State are attributable to that state;[32] also, the content of the decree enters into conflict with the international obligation assumed by the Russian State of respecting the territorial integrity and sovereignty of states under the Charter of the United Nations, including the contents of the Minsk Protocols, insofar it encompasses the fragmentation of the territorial integrity of another sovereign state under Russian domestic law, a situation consolidated further with the incursion of military forces regardless of the purpose to which they have been deployed.[33]

Furthermore, the deployment of military forces would amount to an exercise of extraterritorial jurisdiction of the Russian state within Ukrainian territory to pursue actions that deprive or usurp the exercise of governmental functions by Ukrainian authorities within its territory without its consent or any applicable rule or authority that justifies it.[34] Whereas the act is attributable to, and it constitutes a material breach of an international obligation enshrined in international law, it would now be necessary to examine whether the act in itself is lawful or not. Although it possesses political nature, the decree contains the direct instructions or orders that allow Russian military forces to incursionate into the territory of another sovereign state without its consent.[35] As such, the content and effects of the decree adopted recognising the independence of the self-proclaimed territories is not consistent with international law inasmuch it pretends to legitimise the threat or use of force in international relations -through the deployment of active state military forces- to address the security concerns of one state in relation to the expansion of the membership of a military alliance.[36]

Additionally, when referring to the alleged “genocide” the Russian Federation has accused the Ukrainian Government of committing against Russian-speaking inhabitants in the self-proclaimed republics, there is no sufficient nor founded evidence to sustain this claim. As construed in the Rome Statute and the applicable jurisprudence of the international criminal tribunals, the crime of genocide requires to prove two elements: the intention or mens rea - to eliminate wholly or partially a certain group due to its certain and particular features- and the action or actus reus -a widespread or generalised plan or action to carry out the genocide.[37] However, from the reports of the international human rights missions of the situation in the self-proclaimed republics since the conflict began in 2014 no information can be found as to sufficiently or reasonably led to believe Ukraine, or members of the Ukrainian Government, had the intention to carry out such acts or conducts against the Russian-speaking population living in the contested area of the Donbass[38]. Consequently, no reason can be found to sufficiently or validly justify the intervention by the Russian Federation into the territory of Ukraine.

Albeit the consequences relate directly or indirectly to the decrees authorising the incursion of “peacekeeping forces”, it is noteworthy to discuss and examine the lawfulness of the recent activities undertaken by the Russian Government in Ukraine. The speech delivered by President Putin whilst the Security Council was holding its meeting that announced the deployment of a “special military operation” and the beginning of an armed engagement between the Russian and Ukrainian armed forces in Ukrainian soil raises serious concerns under international law.[39]

Firstly, to consider the military intervention as a “special military operation” is irrelevant to the effects under international law of such conduct. As the order was delivered, following the request to the upper chamber of the Russian Parliament, and aimed at attacking facilities located within Ukrainian territory and seizing control over airports and other infrastructure complexes, the military operation falls into the consideration of an armed attack carried out by the Russian Federation against Ukraine under international law.[40]

Secondly, the military intervention did not constitute to any extent a valid exercise of the right to self-defence. The Russian Government invoked Article 51 of the UN Charter to justify the lawfulness of the “special military operation” in Ukrainian soil, however, the article only applies in circumstances where an imminent threat is posed by that state to the state intending to exercise self-defence.[41] In this case, there is no evidence produced to indicate the events in which an attack by Ukraine was imminent against the Russian Federation nor of any circumstances to which collective self-defence could have been validly invoked if considered that it cannot be founded solely or exclusively on the subjective assessment of the state invoking it to preclude its wrongfulness.[42] Hence, self-defence does not justify nor support Russia’s contentions to carry out a military intervention in Ukraine.

Thirdly, the armed attack carried out by the Russian Federation against Ukraine may constitute an act of aggression. Given that the armed attack did not pursue any of the purposes recognised in the UN Charter - an action authorised by the Security Council or of the valid exercise of the right of self-defence -, and it intended to affect directly or indirectly the “sovereignty, territorial integrity and political independence” as recalled from President Putin’s televised address on the “special military operation” directly targeting the “regime” in Kyiv, the conduct of the Russian Federation may constitute an act of aggression.[43]

Fourthly, the Russian Federation is bound to comply and observe international special legal régimes that derive from its armed attack against Ukraine. On one hand, the Russian Federation is ought to respect the terms of International Humanitarian Law - or the laws of the war - in the conduct of its armed forces in the field, especially when related to the treatment of civilians, the wounded soldiers, prisoners of war - in which Ukraine is bound to comply and respect as well towards Russian soldiers captured or wounded.[44] In that sense, any military action against any protected site under International Humanitarian Law (eg. hospitals, schools, civilian areas), or civilians, wounded soldiers or other conduct contrary to the provisions of the Geneva Conventions and Protocols carried out by Russian - or Ukrainian - forces would constitute a punishable act under the Rome Statute of the International Criminal Court.[45] On the other hand, and in direct relation to the aforesaid consequence, Russian forces - including civilian officials - are still subject to the jurisdiction of the International Criminal Court for any violation of the Geneva Conventions and for the alleged commission of any other crime punished by the Rome Statute even though the Russian Federation is no longer a State Party to the Rome Statute.[46] As the armed attack occurred in the territory of Ukraine, a non-State Party to the Statute that recognised the jurisdiction of the ICC in 2014 over alleged crimes within its territory, the Court and its Prosecutor can exercise jurisdiction to investigate, elucidate and prosecute any allegedly involved individual within the armies or governments of any of the parties involved in the conflict - either Russia or Ukraine - in the commission of graves crimes that includes war crimes, crimes against peace, and the crime of aggression.[47]

Conclusion

To conclude, the situation currently taking place in Ukraine is relevant to international law for four reasons: First, the decision of the Russian Government to recognise their independence breaches the obligations assumed towards Ukraine -Minsk Protocols- and the international community-territorial integrity and sovereignty. Second, the action by the Russian Government to recognise the self-proclaimed territories cannot justify in any extent the recourse to the deployment of military forces in the territory of Ukraine. Third, even if it is accepted that Ukraine allegedly violated its obligations towards Russia under the Minsk Protocols, that does not justify in any extent the conduct of the Russian Government concerning the situation in the self-proclaimed territories. Fourth, the actions of Russia may constitute an armed attack that falls into the definition of an act of aggression against Ukraine. Lastly, Russia and Ukraine are bound by the rules of the war and could be held accountable for conducts contrary to the special legal regime in times of armed engagements, including individual criminal responsibility.

References [1] https://www.dw.com/en/russia-recognizes-independence-of-ukraine-separatist-regions/a-60861963 [2] A/RES/68/262, paras 1 and 5 [3] http://en.kremlin.ru/events/president/news/67829 [4] https://www.themoscowtimes.com/2022/02/15/russian-parliament-backs-plan-to-recognize-breakaway-ukrainian-regions-a76381 [5] https://www.theguardian.com/world/2022/feb/21/ukraine-putin-decide-recognition-breakaway-states-today [6] https://news.un.org/en/story/2022/02/1112412 [7] https://news.un.org/en/story/2022/02/1112412 [8] https://www.reuters.com/world/europe/russias-putin-authorises-military-operations-donbass-domestic-media-2022-02-24/ [9] https://news.un.org/en/story/2022/02/1112592 [10] https://www.nytimes.com/2022/02/24/world/europe/un-security-council-russia-ukraine.html [11] Institut de Droit International, La reconnaissance des nouveaux Etats et des nouveaux gouvernements, Brussels 1936 [12] https://www.dw.com/en/donetsk-and-luhansk-in-ukraine-a-creeping-process-of-occupation/a-60878068 [13] Unilateral declaration of independence of Kosovo, ICJ, Advisory Opinion, para 26 [14] Nicaragua v. United States of America, ICJ, Judgement, para 188; UNGA Resolution 2625 (XXV), Annex, 1st principle [15] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ, Advisory Opinion, para 126; Legal Consequences of the of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, Advisory Opinion, para 146 [16] https://www.chathamhouse.org/2020/05/minsk-conundrum-western-policy-and-russias-war-eastern-ukraine-0/minsk-2-agreement [17] Protocol on the outcome of consultations of the Trilateral Contact Group on joint steps aimed at the implementation of the Peace Plan of the President of Ukraine, P. Poroshenko, and the initiatives of the President of the Russian Federation, V. Putin, Document S/2015/135. [18] https://www.osce.org/cio/140156 [19] Articles 31 and 32 VCLT; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), ICJ, Judgement, para 37 [20] Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ, Advisory Opinion, para 62 [21] https://www.realinstitutoelcano.org/en/global-spectator-nato-promise-gorbachev/ [22] Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ, Judgement, 1997, para 133 [23] Articles of Responsibility for Internationally Wrongful Acts (ARSIWA), Article 32 [24] ARSIWA, Article 33 [25] https://treaties.un.org/Pages/showDetails.aspx?objid=08000002800b8042&clang=_en [26] https://www.rbth.com/international/2014/10/16/mikhail_gorbachev_i_am_against_all_walls_40673.html [27] Kosovo Advisory Opinion, para 80 (and the treaties cited therein) [28] East Timor (Portugal v. Australia), ICJ, Judgement, para 29; Kosovo Advisory Opinion, para 82 (citing Resolution 2625 (XXV)) [29] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, ICJ, Advisory Opinion, para 152 [30] ARSIWA, Article 2 [31] Gabcikovo-Nagymaros Judgement, para 133 [32] ARSIWA, Article 4(1); Draft articles on responsibility of states for internationally wrongful acts (DARSIWA), Article 4, commentary (5) [33] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ, Judgement, para 250; Helsinki Final Act, Question (a), Parts IV and VI, pp. 5-6 [34] The Case of the S.S. “Lotus” (France v. Turkey), PCIJ, Judgement, p. 18; Nicaragua Judgement, para 205 [35] ARSIWA, Article 8; DARSIWA, Article 8, commentary (2); https://www.forbes.com/sites/dereksaul/2022/02/22/russia-authorizes-putins-request-for-military-deployment-outside-russia/ [36] https://www.wsj.com/articles/russia-alleges-ukrainian-incursion-kyiv-says-moscow-makes-up-fake-incidents-11645453512; The Corfu Channel Case (United Kingdom v. Albania), ICJ, Judgement (Merits), p. 35 [37] ICC Elements of Crimes, Article 6, https://www.icc-cpi.int/nr/rdonlyres/336923d8-a6ad-40ec-ad7b-45bf9de73d56/0/elementsofcrimeseng.pdf; Rome Statute of the International Criminal Court, Article 6; Prosecutor v. Yusuf Munyakazi, ICTR-97-36A-A, Appeal Judgement, para 144; Prosecutor v. George Rutaganda, ICTR-96-3-A, Appeal Judgement, paras 524-525; Prosecutor v. Nahimana et al., ICTR-99-52-A, Appeal Judgement, para 492 [38] https://www.osce.org/files/f/documents/d/a/261176.pdf, p. 25; https://www.ohchr.org/Documents/Countries/UA/32ndReportUkraine-en.pdf, paras 133-136; https://rm.coe.int/16806db7ba, paras 73-85 [39] https://www.un.org/press/en/2022/sc14803.doc.htm [40] Charter of the United Nations, Article 2(4); Oliver Dorr, 2019. Prohibition of use of force, in Max Planck Encyclopaedia of Public International Law. [41] Nicaragua Judgement, para 195 [42] Ibid., paras 195-196 [43] UNGA, Resolution 3314 (XXIX), Annex, Article I. [44] Geneva Conventions of 1949, Common Article 2 [45] Rome Statute of the International Criminal Court, Articles 5, 8 and 8 bis. [46] ICC-02/17 OA4, Situation in the Islamic Republic of Afghanistan, 5/03/2020, para 69; https://www.theguardian.com/world/2016/nov/16/russia-withdraws-signature-from-international-criminal-court-statute

[47] ICC-01/19, Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14/11/2019, para 60; https://www.icc-cpi.int/Pages/item.aspx?name=pr1146