Aide-mémoire Regarding the Violations of Imperative Norms of International Law (jus cogens) by the Russian Federation.
On March 1, 2014 at 17:21 (Kyiv time) the Council of Federation of the Federal Assembly of the Russian Federation supported unanimously the request of President of the Russian Federation V.V.Putin to bring “a limited military contingent” of the armed forces of Russia onto the territory of Ukraine
Aide-mémoire Regarding the Violations of Imperative Norms of International Law (jus cogens) by the Russian Federation
On March 1, 2014 at 17:21 (Kyiv time) the Council of Federation of the Federal Assembly of the Russian Federation supported unanimously the request of President of the Russian Federation V.V.Putin to bring “a limited military contingent” of the armed forces of Russia onto the territory of Ukraine.
The decision was made in violation of UN Charter, 1970 Declaration on Principles of International Law, 1975 CSCE Helsinki Final Act, 1997 Treaty of Friendship and Cooperation between the Russian Federation and Ukraine, as well as of several other international treaties. At the same time, demonstrative refusal of the Russian Federation from preliminary consultations with Ukraine and guarantor states of its territorial integrity (UK, USA, France and China) represents emblematic disregard of its international legal obligations consolidated in 1994 Budapest Memorandum.
The legal nihilism is reaffirmed by President of the Russian Federation V.V.Putin made at the press conference on March 4, 2014. In particular, V.V.Putin stated that the developments of the several recent months led to the creation of a new state in the territory of Ukraine with regard to which Russia had signed no obligatory documents.
The decision of the Council of Federation of the Federal Assembly of the Russian Federation to use armed forces in the territory of an independent sovereign state, one of UN founding members, contradicts the norms of international law related to situations when the protection of rights and legitimate interests of citizens staying beyond the territory of their own state permits military intervention of the home state. According to the Constitution of Ukraine and relevant norms of international law, the Autonomous Republic of Crimea is an inalienable part of Ukraine and one of administrative-territorial units of the state of Ukraine. We stress that no duly authorized national, foreign or international organization has reported violations of human rights in the territory of Ukraine (an in the Autonomous Republic of Crimea in particular), which would require intervention of any international subject or the international community. Therefore, the appeal of self-styled leaders of the Autonomous Republic of Crimea, one of Ukraine’s administrative units, to the Russian authorities with a request to provide military assistance is illegal, and any decisions made on the basis of that appeal are illegitimate. This is evidenced by criminalization of public appeals to unleash a war under both Ukrainian (Article 436 of the Criminal Code of Ukraine) and Russian (Article 354 of the Criminal Code of the Russian Federation) legislation.
The so-called Appeal of citizen of Ukraine V.Yanukovych to President of Russia V.V.Putin with a request to use the Armed Forces of the Russian Federation to restore legality, peace, order, stability, and to protect the population of Ukraine contains indications of the same crime. The appeal directly contradicts Article 85 of the Constitution of Ukraine, which attributes to the Parliament of Ukraine the exclusive right to make decisions on admission of foreign military to the territory of Ukraine.
Applying the principle of bona fide interpretation of international treaties, we note that a considerable breach of the Agreement between Ukraine and the Russian Federation on the Status and Conditions of Presence of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine dated August 8, 1997 has taken place; in particular, according to paragraph 1, Article 6 of the Agreement, military units of the Black Sea Fleet of the Russian Federation “shall conduct their operations in the areas of disposition in accordance with the legislation of the Russian Federation, respect Ukraine’s sovereignty, obey its legislation and refrain from interference with Ukraine’s domestic affairs”. Paragraph 2, Article 8 of the same Agreement, under which military units of the Black Sea Fleet of the Russian Federation “shall conduct exercise and other combat and operative training within the limits of training centers, training areas, positioning and dispersal areas, firing ranges, and, except forbidden zones, within the designated airspace as agreed with Ukraine’s competent authorities”, was also violated. No such agreement of Ukraine’s competent authorities was received by relevant authorities of the Russian Federation. However, Russian servicemen (they told the press about their citizenship) left their garrisons in violation of the norms of the Agreement.
In view of the above, actions of the Russian Federation represent an act of aggression, which is an international crime. We remind that the international law provides for a special regime of international responsibility of states violating imperative norms of general international law, while individuals guilty of the crime of aggression are individually responsible under international law.
Therefore, actions by the Russian Federation create legal conditions for realization by Ukraine of its inalienable right to individual and collective self-defense as enshrined in Article 51 of UN Charter, including appeals to other states and institutions to repulse the foreign aggression. Taking into account multiple violations of multilateral and bilateral treaties, Ukraine also has the right to terminate the fulfillment of its obligations under bilateral treaties with Russia, in particular, of those pertaining to temporary presence of the Black Sea of the Russian Federation in the territory of Ukraine.
The contempt of basic principles of international law by the Russian Federation will inevitably lead to serious political, economic and military losses in the age of modern globalized world will lead to destabilization of the situation not only inside Eastern Europe, but also inside Russia. The use by Russia of non-existing and unconfirmed violations of collective rights of population of certain region or regions of Ukraine as excuse for military aggression will likely become a precedent for similar military interference into domestic affairs of other states from multinational Russian Federation, and may be used by other states for interference into internal affairs of Russia and support of separatist movements in some Russian regions.
Not only the Russian Federation’s policy towards Ukraine destroys the bilateral international legal base. It threatens the whole system of international law.
International law is and remains an instrument for peaceful resolution of disputes between states. Any interference of one state into domestic affairs of another state is inadmissible and must be condemned by the international community.
We stress once again that the actions of the Russian Federation violate imperative norms of international law (jus cogens) that are accepted and recognized by the international community of states as a whole as norms from which no derogation is permitted (Article 53, 1969 Vienna Convention on the Law of Treaties). Jus cogens norms are criteria used to determine legitimacy of other norms; they serve as foundation of international order. Thus, the statement of non-recognition of the Government of Ukraine by President of the Russian Federation V.V.Putin contradicts international law.
Taking into account the fact that violation of jus cogens by the Russian Federation represents immediate encroachment on the interests of international community as a whole, they lead to obligatio erga omnes for the states to prevent their impunity. The crime of aggression leads to criminal responsibility of certain officials of the aggressor state.
March 6, 2014