By Ben Saul
Photo: Russia, Ukraine and NATO are all vying to control the legal narrative. (Reuters: David Mdzinarishvili)
The legality of Russia's military incursion into Crimea is as much a question about power as it is about legal principle, and that's where the claims of legitimacy ultimately fall down, writes Ben Saul.
Is Russia's military deployment in the Crimea region of Ukraine illegal under international law? Russia claims to be protecting Russians at risk there. NATO and US president Barack Obama say it is an aggressive invasion in violation of international law.
Under the international law on the use of force, encoded in Article 2(4) of the United Nations Charter of 1945, countries are generally prohibited from using military force against other countries. There are narrow exceptions where a country uses force in self-defence against an armed attack, or where the UN Security Council has explicitly authorised the use of force to restore international peace and security.
Ukraine has not attacked Russia so Russia is not acting in self-defence as it is conventionally understood. The Security Council also has not authorised the Russian action. This is not, however, the end of the legal question.
In the first place, Russia claims to be protecting ethnic Russians, or Russian citizens, at risk in the Crimea. Some countries, including the United States, United Kingdom and Israel, have historically argued that the right to use force in self-defence includes the right to protect citizens at risk overseas, even when a country's own territory, military or government has not been attacked.
Most countries have never accepted this expansive legal argument. For most countries, danger to foreign citizens is not serious enough to equate to an 'armed attack', which is the legal threshold triggering the right to self-defence. Military force is only considered justified where the country itself is under attack. In policy terms, lowering the threshold of self-defence to protect nationals at risk overseas is thought to dangerously escalate international violence. Claims to protect 'ethnic' nationals (as opposed to 'legal' citizens) are even more dubious.
History also suggests that claims to protect nationals at risk overseas are also frequently abused, and become a pretext for other ambitions, such as the seizure of territory or wider political or strategic goals. There are, admittedly, some examples where actions have not been abusive, such as when Israel rescued hostages from a hijacked civilian aircraft at Entebbe in 1976, where Idi Amin's Uganda was harbouring terrorists. Even that example was controversial and said to be a violation of Uganda's sovereignty by many at the time.
In the view of most countries and international lawyers, there is no international legal right of self-defence to protect citizens in danger overseas. Even if there were, the Russian action in Crimea would not qualify. An armed attack requires actual military violence to be committed. Speculative risks that the unstable political climate in the Ukraine might endanger Russian nationals is not sufficient. If anything, the Russian intervention has magnified the dangers for ethnic Russians or Russian nationals there.
And Russia certainly has no right to use military force to annex the Crimea as sovereign Russian territory, regardless of whatever historical claims to the Crimea Russia might claim to have.
Russia also has no right to forcibly assist an ethnic minority inside the independent country of Ukraine to secede pursuant to any purported right of self-determination.
A second legal question is whether Russian forces were legitimately 'invited' into the Crimea by Ukraine. Under international law, the lawful government of one country is entitled to request military assistance from a foreign country to restore law and order or stabilise domestic political unrest. This was, for instance, one legal basis of Australia's deployments in places like Afghanistan, the Solomon Islands, or East Timor in recent years.
It is clear that the agreement between Russia and Ukraine to allow Russian military bases in the Crimea does not permit wider Russian deployments in Ukraine without Ukraine's consent.
But Ukraine's recently deposed president, Viktor Yanukovych, has found sanctuary in Russia, insists he remains Ukraine's lawful president, and has reportedly requested Russia's assistance in re-establishing his authority. Under Ukraine's legal system, the president has powers in relation to defence and foreign affairs.
Yanukovych was, however, removed from power by Ukraine's parliament in late February 2014. Ordinarily that would remove Yanukovych's domestic legal authority to invite Russian forces into the Ukraine, and hence invalidate his authority under international law to request Russia's assistance.
The spanner in the works is that there is a legal dispute in the Ukraine over whether the parliament's removal of Yanukovych complied with the procedures under Ukraine's constitution. If Yanukovych's removal was unconstitutional, and he remains the lawful president of Ukraine, he may be entitled to invite Russian forces, despite the opposition of Ukraine's parliament and (probably) most of Ukraine's population.
The case illustrates a common dilemma that arises in international law, when a 'legal' government no longer seems 'legitimate' because it has lost the confidence of (most) of its people. International law's answer is eventually a pragmatic one: the international community usually recognises, or deals with, whichever domestic political entity has managed to firmly establish its authority.
This, of course, takes time, and in the meantime there is usually dangerous flux. The new Ukraine government is ascendant over most of Ukraine and Yanukovych has lost out. But Yanukovych is still in the game in the Crimea, with Russian backing. Now it is a struggle for power, as well as legal principle. The two are always intertwined. Law legitimates power, and discredits it. Russia, Ukraine and NATO are all vying to control the legal narrative.
Even if Yanukovych remains the lawful president and has invited Russian forces, it is extremely unlikely that he now controls the terms of Russia's engagement in the Crimea. This fact then provides the clearest legal answer. Russia has unilaterally invaded Ukraine's territory, and not by invitation, in self-defence, or with UN blessing. That is contrary to international law and the UN Charter, and amounts to the international crime of aggression.
Ben Saul is Professor of International Law at the University of Sydney. View his full profile here.
The battle for legal legitimacy in Crimea - The Drum (Australian Broadcasting Corporation)
