Published On: Mon, Mar 10th, 2014

Ukraine: The New Government, Its Questioned Legality, and the Criminal Nature of the Coup

Alexander Mezyaev (SCF) : A number of international organizations are in the process of studying the legal aspects of the situation in and around Ukraine from the point of view of international law. The United Nations, in particular the Security Council, is the main entity, authorized to come up with priority assessments according to article 21 of UN Charter and the very fact of Ukraine’s membership in the organization. 

ashton_svobod_ukraine_EUThe UN Security Council (UNSC) has had the issue on its agenda three times recently. The first time was on February 28. There was nothing but an official communique informing that a session took place. Then the issue was again considered on March 1 and March 3.

First, Ukraine used the term «aggression» to describe the Russia’s actions. On February 28 and March 1 the UNSC sessions were called upon Ukraine’s initiative for the reason of «Russia’s aggression» against Ukraine. The official letter of the Ukraine, dated February 28, stated there was «a threat to Ukraine’s territorial integrity» caused by the «deteriorating situation in the Autonomous Republic of Crimea». The next day, on March 1, another letter used the term «aggression against Ukraine».

On March 3 the United Nations Security Council’s deliberations were focused on two aspects of international law.

First, the Ukraine reported that Russia rejected its request to launch immediate consultations in accordance with article 7 of the 1997 a bilateral Treaty on Friendship, Cooperation and Partnership.

Second, it affirmed that «The Russian Federation has brutally violated the basic principles of the Charter of the United Nations, obliging all Member States, inter alia, to refrain from the threat or use of force against the territorial integrity or political independence of any State». (1)

Both of the arguments put forward by the so-called representative of the Ukraine have weak points. The matter is, that from a legal point of view, there has been no request made, asking Russia to hold any consultations. This affirmation is obvious because there is no legal entity in existence to do so.

Russian UN Envoy Vitaly Churkin at the Security Council, presenting a letter from Ukrainian President Victor Yanukovich, asking for Russian military support to protect human rights and security in the Ukraine.

Russian UN Envoy Vitaly Churkin at the Security Council, presenting a letter from Ukrainian President Victor Yanukovich.

On March 3 the Russian Permanent Representative showed to the UN Security Council members a letter signed by President Yanukovych asking for military involvement. It said, 

«As the legitimately elected President of Ukraine, I wish to inform you that events in my country and capital have placed Ukraine on the brink of civil war. Chaos and anarchy reign throughout the country. The lives, security and rights of the people, particularly in the south-east and in Crimea, are under threat. Open acts of terror and violence are being committed under the influence of Western countries. People are being persecuted on the basis of their language and political beliefs. I therefore call on President Vladimir Vladimirovich Putin of Russia to use the armed forces of the Russian Federation to establish legitimacy, peace, law and order and stability in defence of the people of Ukraine». (1)

Talking about the situation in Ukraine, the key issue is the legality of the government. Is it legal or not, this fundamental question provides a clue for all further deliberations. 

It’s not legitimacy, but rather legality that is in question; does the government have a right to function according to law? Many have absolutely forgotten this term, making all considerations and analysis (if miserable and sometimes legally incompetent attempts could be termed so) boil down to «legitimacy». There is a significant difference.

Legality or lawfulness is a strictly defined notion based on norms of internal and international law.

Legitimacy is a purely theoretical legal term. It is defined by law scholars and has no commonly accepted or even legally binding criterion. Now why is everybody keeping on, talking over and over again, about the «legitimacy» of power, while fully ignoring the term «legality»? These are the words by the US State Department spokesman:

«We are in the same place we have been in, which is that we don’t – we believe that Yanukovych has lost his legitimacy as he abdicated his responsibilities. As you know, he left Ukraine – or left Kyiv, and he has left a vacuum of leadership. So we continue to believe that he’s lost legitimacy and our focus remains on the path forward». (2)

This «explanation» has nothing to do with the law and is flagrantly incompetent. The words are hastily chosen at random. 

The USA demonstrates that it badly lacks legal arguments to substantiate its stance on Ukraine by substituting the notion of legality (lawfulness) with the blur conception of legitimacy. The West tries to cheat with a sleight-of-hand: it suggests that the legality of legal power be proven instead of making the putschists, who staged the coup, come with legal substantiations proving the legality of their actions! 

The Ukraine’s Constitution envisions four ways to deprive the President of power, according to article 11: resignation, health reasons, demise and impeachment. Nothing like that has taken place.

The Verkhovna Rada’s (parliament) vote to dismiss Yanukovych contradicts the Constitution, making it a criminal act. Now the question comes up: why should Russia have any deals with criminals» There is no answer to this question, from legal point of view.

Someone Sergeev, who speaks at the United Nations Security Council sessions, cannot be considered a legal representative of the Ukraine’s government; it means that all letters sent by illegal authorities have no relevance, whatsoever.

That’s why Russia is not going to discuss the bilateral Russia-Ukraine Treaty of 1997. There is no legal entity to talk with! The putschists and their Western sponsors pretend it’s beyond their comprehension.

It’s worth to pay attention to, how the Ukrainian Association of International Law, or, to be more precise, its Presidential Council, reacted under the circumstances.

Ukrainian lawyers argued that the Russia’s decision, to demonstratively reject the preliminary consultations with Ukraine and the guarantors of its territorial integrity (the US, the UK, France and China), is not only a violation of the UN Charter and general international law, but also a show of disdain for the international obligations under the Budapest Memorandum of 1994.

Any lawyer can see the trick here. To hold consultations with who? Displaying artificial open-heartedness, Ukrainian lawyers say «with Ukraine». Pretending to be naïve they get around the key legal issue – the criminal nature of the staged coup.

Why should Russia forget about legality and start to talk and make deals with the bandits in power? No answer!

On March 5, that is two days after the letter of Yanukovych was made public at the United Nations Security Council session, the so called representative of Ukraine tried to prove that the request, addressed by Yanukovych to Russia, had no legal grounds.

His statement said, that according to article 85 (item 23) of the Constitution of Ukraine, the Verkhovna Rada has exclusive powers to allow the deployment of foreign armed forces on the national territory. Once there was no approval, the request of Yanukovych had no legal basis. (2)

This is another attempt to distort the reality: the Rada has the authority to approve the President’s decision, but not take it instead of him. The very fact that the Rada has not approved the decision does not automatically make it illegal. In his March 5 letter, the so called Representative of Ukraine could not explain, why Yanukovych should no longer be considered the President of Ukraine. The letter does not contain a reference to any legal act. And Sergeev and the best of the Ukraine’s lawyers had worked on it for two days!

From a legal point of view, what is happening in Ukraine is a crisis provoked by the coup, staged in Kiev, when armed extremists grabbed power in the country. (3)

Urmas Paet and Catherine Ashton

Urmas Paet and Catherine Ashton

An armed coup is a criminal offense. Those who claim to be the new government of Ukraine have no legality and their actions have no legal ground from the point of view of the Russian Federation.

Russia’s stance fully corresponds to the national laws; the President’s decision to use the armed forces abroad is taken in conformity with the Constitution and the effective federal law, as well as the laws of Ukraine.

Russia has not breached any international norms. Whatever the West says about the violation of the United Nations Charter and other international documents is based on a wrong foundation, because the legal status of the Ukraine’s new government is an open question.

The West has taken part in the overthrow of a democratically elected government and has recognized those who have been involved in the actions punishable by the national criminal code. This means, that the West itself is in flagrant violation of international norms…

Alexander Mezyaev, Strategic Culture Foundation

Read more in our in depth coverage of the events in and around the Ukraine, with news, analysis and opinion, in nsnbc international – your daily independent.

 Notes:

(1) The letter was cited by Mr. Churkin at the session on March 3, 2014 // Later the full text was spread around as a UN Security Council document and is posted on the UN official website.
(2) Letter by Ukraine Permanent Representative to the United Nations, March 4, 2014 addressed to the Chairman of United Nations Security Council
(3) That’s how it was defined by Russia’s Permanent Representative to the United Nations Security Council Vitaly Churkin at the UNSC session on March 3. The new government tries to make everyone see it welcomes the nationalists’ role in the Ukraine’s coup. For instance, the Ukraine’s UN «representative» Sergeev said the USSR fabricated the accusations against Ukrainian nationalists at the Nuremberg trial. It’s important to note here that as far back as 2008 the People’s Commissariat of Internal Affairs-Ministry of State Security’s information on OUN-UPA (the Organization of Ukrainian Nationalists – the Ukrainian Insurgent Army) activities was declassified. One can read it on the website of Russia’s Ministry of Foreign Affairs (Main Archives of the Russian MFA)

About the Author

- Alexander Mezyaev is the Head of the Chair of the Academy on International Law and Governance in Kazan, Tatarstan, Russia. Alexander Mezyaev is a frequent contributor to international print and online media. His to the point and precise articles are deconstructing social constructionism, scapegoating and positioning in international politics, governance, conflict and law.

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  1. One waits in vain for even a hint of fairness or justice from the prevailing governments of the West. Not finding it, one looks to the media which merely amplifies the arguments of governmental brutality masquerading as sanctimonious virtue! Now comes Mr. Mezyaev who champions actual justice and legality. Lest we should despair of rationality, seeing only the brute force (often covert) of my own country, there is Mr. Mezyaev. Thank you. And thank you nsnbc.

    • nsnbc says:

      Dear Ms. Powell.
      Thank you for thanking nsnbc and for your feedback about Alexander Mezyaev’s expert assessment of the legal disputes pertaining the Ukraine. As you say:

      Now comes Mr. Mezyaev who champions actual justice and legality.

      Beside his credentials and expertise, that is one of the reasons why we have Alexander Mezyaev as one of our core contributors. Again, thank you for your feedback and for reading nsnbc, we appreciate both. – Christof Lehmann, Editor.

  2. Sandy says:

    Great to have an expert who helps us anchor ourselves in law and actualities. With all the propaganda that is blasted at us, hanging us out to dry and disoriented, this is making sense. Amazing to see how deep the NATO countries have regressed toward global anarchy and despotism.

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