THE UKRAINIAN CRISIS – LEGAL AND POLITICAL IMPLICATIONS
Ladies and gentlemen,
First of all I would like to thank the Law Society of Ireland for giving me an opportunity to address the distinguished audience of Irish and international lawyers on the topic which is of paramount importance for my country in this most dramatic and challenging moment of its modern history. In fact despite the gravity of the situation in Ukraine, being here in Ireland I have to state a deficient awareness and comprehension of cause-and-effect relationship of the Ukrainian crisis.
In my view, it is important to remember that this most prolonged and deadly crisis since our post-Soviet independence began as a people’s protest against the government dropping plans to forge closer ties with the European Union.
Now after almost a year of the crisis it becomes ever more obvious that the political turmoil in Ukraine was mainly influenced and inspirited by Russia and its later actions – unprovoked and undisguised aggression in Crimea and Donbass – is yet another evidence of the Kremlin’s attempt to preserve its zone of influence on the territory of the former Soviet Union.
To keep Ukraine in the foreign policy orbit and to prevent its closer partnership with the EU and NATO remains the main objective of the current Russian leadership.
More than 10 years ago when Ukrainian President Kuchma declared the European integration course as a strategic objective of Ukraine’s internal and foreign policy it caused rather slow reaction in Russia since Moscow didn’t believe that we were serious about that and such a rapprochement could be feasible in the foreseeable future.
Their arguments seemed to be quite clear:
"The West must understand that, to Russia, Ukraine can never be just a foreign country," former U.S. secretary of state Henry Kissinger once wrote in a Washington Post.
- Russia had strong historical ties with Ukraine. Ukraine was part of Russia for centuries, and the two continued to be closely aligned through the Soviet period, when Ukraine and Russia were separate republics;
- Ukraine was also a major economic partner that Russia would like to incorporate into its proposed Eurasian Union whose members include Kazakhstan, Belarus, and Armenia;
- Ukraine has played an important role in Russia's energy trade; its pipelines provide transit to 80 percent of the natural gas Russia sends to European markets, and Ukraine itself is a major market for Russian gas.
- Militarily, Ukraine was also important to Russia as a buffer state, and was home to Russia's Black Sea fleet, based in the Crimean port city of Sevastopol under a bilateral agreement between the two states.
Nevertheless, on 30 March 2012 after several years of talks the chief negotiators of the European Union and Ukraine initialed the text of an Association Agreement, which included provisions on the establishment of a Deep and Comprehensive Free Trade Area as an integral part.
Commenting that fact Sergei Glazyev, adviser to President Putin, said "Ukrainian authorities make a huge mistake if they think that the Russian reaction will become neutral. This will not happen."
In the autumn of 2013 the Kremlin warned Ukraine that if the country went ahead with a planned agreement on free trade with the EU, it would face financial catastrophe and possibly the collapse of the state.
With mounting evidence that Ukraine was serious about signing the deal with the EU at the Vilnius Summit foreseen for late November 2013 Russia began an economic war with Ukraine.
President Putin turned up the heat with sanctions targeted against a wide range of sectors and specific enterprises, particularly in eastern Ukraine. Metals, locomotives, pipes, vehicles, chemicals, food and confectionary were all targeted by a combination of non-tariff barriers to trade and the unilateral abrogation of contracts. Moreover Russia continued to charge Ukraine a higher price for gas than its charged even Germany.
Under the Russian severe economic blackmail the Ukrainian Government suspended preparation for signing the Ukraine–EU Association Agreement.
It happened unexpectedly for the entire nation a week before the Vilnius Summit despite the President previously had vowed on multiple occasions the Agreement to be his key objective.
I clearly remember that time when even my son, a 19 years old student participated in a peaceful manifestation demanding closer European integration of Ukraine.
The Ukrainian “Revolution of Dignity” launched by Euromaidan started as a wave of demonstrations and civil unrest in Ukraine and abroad.
People at Maidan flew the flags of the EU and Ukraine. Contrary to allegations of the Kremlin propaganda protests in Kyiv had no anti-Russian background. People called not against Russia but for Europe. They wanted to rid their country of corruption. They saw the EU as a beacon of freedom, democracy and opportunity.
Violent dispersal of protesters, President’s unwillingness to listen to people who had been appealing for him for three months, ignoring the international community calls to resolve peacefully the crisis, finally, turned in bloodshed. 103 people were shot dead and more than one thousand injured on the streets of Kyiv.
Sensing that the game was up Yanukovich fled to Russia. The Verkhovna Rada (Parliament) of Ukraine met in emergency session and appointed Oleksandr Turchynov as speaker and interim president of Ukraine. Regretfully one of its first votes was to reverse a law on the status of the Russian language. Mr. Turchynov refused to sign it into law. It never entered into force but President Putin seized the opportunity to reinforce his hypothesis and propaganda that Maidan was in effect a neo-Nazi Russophobe conspiracy.
I think everybody knows what happened then. Russian troops invaded the territory of Ukraine in Crimea under illegal and groundless excuse of protecting the Russian speaking population from “fascists and nationalists” although there was no tangible evidence whatsoever of any threat to life and limb of anyone in Crimea.
One should make no mistake about these allegations. Nobody and nothing threatened Russians and representatives of other nationalities living in Ukraine and in the Autonomous Republic of Crimea, in particular.
Being a Crimean by origin (I was born there and my mother lives in Sevastopol) I know quite well the situation there. Russians, Ukrainians, Tatars and representatives of other nationalities have been living peacefully in Crimea for decades. The only bone of contention sometimes was language.
But I responsibly state that allegations that the Russian speaking population in Crimea was deprived of its right to speak Russian are just not true. As I said the abolition by the Parliament of a controversial and mainly politically motivated law on State Language Policy, has been vetoed by the acting President and hence still remains in force.
Trying to justify its aggressive actions Russia looked for more and more excuses. The Russian Ambassador to the UN stated in the Security Council that it was the ex-President Yanukovysh who had appealed to the Russian President to bring troops into Ukraine and even demonstrated a sheet of paper with Yanukovysh’s signature.
I deliberately don’t dwell on moral side of this matter. Even closest allies of Yanukovysh in Ukraine were outraged at his disgusting act to use foreign army against his own people.
I just want to point out that according to the Constitution only the Verkhovna Rada can legally invite foreign troops to move into Ukraine, not even a President in power.
On March 16, a so called “referendum on independence of Crimea” was held. This farce which totally contradicted the Ukrainian legislation, conducted under the shadow of Russian guns at the absence of impartial international observers was used by Russia to formally annex the peninsular.
The annexation of Crimea was condemned by the international community. 100 states voted for the U.N. General Assembly resolution by which the United Nations reaffirmed its commitment to the sovereignty and territorial integrity of Ukraine in accordance with its internationally recognized borders. The General Assembly called on not to recognize any alterations of the status of Crimea under the illegal referendum.
Being Ambassador to Ireland I cannot but note with satisfaction and gratitude that this country was one of the first who took a clear and firm position on that matter. Ireland was among the cosponsors of the said U.N. General Assembly resolution. Moreover, on April 3 the Irish Dail passed a motion condemning the illegal annexation of Crimea by the Russian Federation that violated the sovereignty, political independence, unity and territorial integrity of Ukraine.
Unfortunately, all these calls were not heard in Moscow which after the annexation of Crimea started to destabilise eastern regions of Ukraine trying to play the same scenario there.
In Donbass, as earlier in Crimea so called ‘little green men’ in Russian military fatigues, without insignia and well armed arrived and occupied strategic buildings. They then retreated from view to be replaced in part by indigenous separatists.
Russia thinks it found a foolproof way to conduct a war – not calling things their names and flatly denying the truth. Moscow propaganda endeavors to present the events in the East of Ukraine as a civil war denying its direct involvement in them. But all facts – videos of captured Russian servicemen and munition, stories of dead and injured Russian soldiers in Ukraine – prove the contrary. Leaders of pro-Russian separatists on many occasions openly stated that they constantly received from Russia heavy weaponry including tanks, armored personnel carriers, antiaircraft missiles etc.
Fighting on the ground has gone through many phases and caused severe damage to the region. Hundreds of buildings, enterprises, kilometers of roads and railways were destroyed. But the most unfortunate part is human toll. According to the U.N. report more than 4 000 people were killed in the course of fighting in the eastern part of Ukraine, children and elderly people among them.
To stop war and to launch a political dialogue the Ukrainian President Poroshenko announced a two weeks-long unilateral ceasefire and put forward a fifteen-point plan for peace. The main provisions of his proposals called Poroshenko peaceful plan were the following:
- Amnesty for those who laid down weapons and didn't commit serious crimes.
- Liberation of hostages.
- Establishment of a 10-kilometres long buffer zone on the Ukrainian-Russian border. Withdrawal of illegal armed formations.
- Liberation of illegally seized administrative premises.
- Decentralization of power.
- Protection of Russian language.
- Early local and parliamentary elections.
But these peace proposals were discarded by separatists. The armed clashes in Donbass went on. Russia continued to supply mercenaries and heavy military equipment to the region of conflict as well as shelling our troops from its own territory.
On 17 July Malaysian airlines flight, MH 17, was shot down over pro-Russian separatists held territory resulting in the death of more than three hundred persons. The international investigation of the aircraft crash is still under way but it is clear that this awful crime became possible due to constant Russia’s military support to the terrorists in the East of Ukraine, including supplying them with advanced weaponry.
On the Ukrainian Independence day 24 August Russia started a massive invasion and a new front was opened to the south towards the city of Mariupol threatening to build a land bridge from the Russian border to the land locked Crimea.
Against this background on 5 September a protocol called the Minsk Agreement was signed. Apart from immediate ceasefire the Agreement contained major provisions of the Poroshenko peaceful plan with some modifications.
To comply with its commitment the Verkhovna Rada adopted and the President signed the law "about local government provisional arrangements in some areas of Donetsk and Luhansk regions" (law on the special status) which foresaw, in particular, conducting of early local elections in accordance with the Ukrainian legislation. It was a difficult decision which didn’t get unanimous support by the Ukrainian society.
However, as it turned out the pro-Russian separatists had no intention to meet their commitments. The ceasefire is being broken everyday. More than one hundred people including civilians were killed during this “truce”.
Moreover, on 2 November illegal armed groups organized so called “elections” in certain areas of Donbass, which are under their control.
By proceeding with this illegitimate exercise, organizers of the fake “elections” violated the legislation of Ukraine and the Minsk agreements, thus delivering a serious damage to the process of peaceful settlement.
All civilized world condemned these illegal so called “elections”. Even Russia didn’t dare to recognize them openly. However, by some encouraging statements before and after that farce Moscow in effect gave green light to it demonstrating its interest in derailing the peaceful resolution of the situation in the East of Ukraine.
Ladies and Gentlemen,
“The world will never be the same again”, said European Council President Herman van Rompuy after Crimea, conjuring up a geopolitical awakening at the heart of the EU.
And it makes sense from the legal and geopolitical points of view because today we witness an open challenge to the World Order.
By annexing Crimea and intervening in the East of Ukraine, Russia has raised fundamental questions about the existing principles of the World and European order, enshrined in the documents that form the basis of modern international law, as well as major bilateral treaties and agreements:
- U.N. Charter (the principle of non-use of force or threat of force, the principle of territorial integrity of states and the principle of peaceful settlement of disputes). Let me recall that being a permanent member of the U.N. Security Council Russia bears special responsibility to safeguard peace and security;
- Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations of 1970;
- Final Act of Conference on Security and Cooperation in Europe of 1975;
- Basic bilateral treaty of 1997 ironically called the Treaty on Friendship, Cooperation and Partnership between Ukraine and the Russian Federation (by which it recognized existing Ukrainian boarders);
- The Budapest Memorandum of 1994 (Memorandum on Security Assurances in Connection with Ukraine's Accession to the Treaty on the Non-Proliferation of Nuclear Weapons).
Despite the wide recognition in the world of the fact that we face now the most flagrant violations of international law in the postwar history, no adequate answer on how to reverse illegal actions and prevent further violations has been found.
The Ukrainian crisis has demonstrated the fragility and unreliability of the existing institutions of European security. The U.N. Security Council proved to be helpless when it deals with aggression from the part of its permanent member. The OSCE toolbox has appeared not to be adjusted to the situation of direct military aggression of one participating State against another participating State.
The total irrelevance of the Budapest Memorandum that was a guarantee of territorial integrity for a non-nuclear Ukraine became a poor advertisement for non-proliferation regime.
So, what can be done to mitigate the negative consequences of the crisis?
In my view, there are several priorities in the short-term perspective:
The bloodshed in Donbass must be stopped on the basis of the Minsk agreements.
The policy of international sanctions must be continued and toughened until the status quo that existed before the Russian invasion to Crimea be restored. It is evident that sanctions may not have an immediate impact but will be effective in curbing the aggressor in the long run.
2. The whole European community of nations needs to unite efforts to curb the Kremlin’s expansionist policy. It is important for the EU to pursue a common course on counteracting Russian aggression against Ukraine.
In the long-term perspective I see an imperious necessity in strengthening the European and World security mechanisms. Let me recall that a comprehensive reform of the U.N. Security Council is actually being blocked by Russia while plans to modernize the OSCE still remain on the drawing board.
Decisive actions are to be taken in order to prevent further erosion of the fundamental principles of international law while universal understanding of international law must be restored.
It is my strong believe that in the 21-st century force of law should prevail, not law of force.