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Aide mémoire on violation by the Russian Federation of peremptory norms of the international law (jus cogens)
06 March 2014 22:00

On 1 March, 2014 at 17.21 (Moscow time) the Federation Council of the Federal Assembly of the Russian Federation unanimously supported the appeal by President of the Russian Federation Vladimir Putin to garrison "a limited military contingent" of the Russian armed forces to the territory of Ukraine.

This decision has been taken in violation of the UN Charter, the Declaration on Principles of International Law of 1970, the CSCE Helsinki Final Act of 1975, the Treaty on Friendship and Cooperation between the Russian Federation and Ukraine of 1997, as well as a number of other international treaties. At the same time the emphatic rejection of the Russian Federation to hold prior consultations with Ukraine and other states - guarantors of its territorial integrity (the UK, the USA, France and China) is the indication of the RF neglecting its obligations under the international law, enshrined in the 1994 Budapest Memorandum.

This legal nihilism is confirmed by the statement of President of the RF Vladimir Putin made during the press-conference on 4 March 2014. In particular, V.Putin stated that as a result of the events of the last few months there has been formed a new state on the territory of Ukraine and the RF has not signed any binding agreements with it before.

The decision of the RF Federation Council on the use of armed forces on the territory of the independent sovereign state, one of the United Nations founders, is in contrary to the international law norms relating to situations when the protection of rights and legitimate interests of its own citizens who reside outside the territory of the state, allow the military intervention of the state of their citizenship. According to the Constitution of Ukraine and relevant provisions of the international law the Autonomous Republic of Crimea is an integral part of Ukraine being one of the administrative-territorial units of Ukraine. We emphasize that none duly authorized national, foreign or international organization recorded violation of human rights in Ukraine (in particular, in the Autonomous Republic of Crimea), which would require an intervention of any international entity or international community. Thus, appeal of self-appointed leaders of the administrative unit of Ukraine – the Autonomous Republic of Crimea – to the Russian authorities to provide military aid is illegal, and any decision on the basis of this application, is illegitimate. This is confirmed, in particular, by the establishment of criminal liability for public incitements to war under the legislation of Ukraine (Art. 436 of the Criminal Code) as well as of the Russian Federation (Art. 354 of the Criminal Code).

The indications of the same offence are clearly present in so-called statement of citizen of Ukraine V.Yanukovych addressed to President of the Russian Federation V.V.Putin with the request to use the Armed Forces of the Russian Federation for the restoration of rule of law, peace, legal order, stability and protection of the people of Ukraine. The mentioned statement directly contradicts Article 85 of the Constitution of Ukraine, according to which the right to take a decision about an access of the foreign armed forces to the territory of Ukraine belongs exceptionally to the Parliament of Ukraine.

Applying the principle of faithful interpretation of international treaties, we observe the significant breach of the provisions of the Agreement between Ukraine and the Russian Federation about the status and conditions of the Russian Federation’s Black Sea Fleet presence on the territory of Ukraine from 8 August 1997, particularly of Paragraph 1 of Chapter 6, which defines that the military units of the RF’s Black Sea Fleet “carry out their activities in the places of their dislocation in accordance with the laws of the Russian Federation, respect the sovereignty of Ukraine, observe its legislation and do not resort to interference into internal affairs of Ukraine”. Paragraph 2 of Article 8 is also violated, in accordance with which the military formations of the RF’s Black Sea Fleet conduct military exercises and other arrangements of combat and operational training within the boundaries of training centers, firing grounds, positional districts and the districts of dispersal, shooting grounds and, with the exception of prohibited zones, in the allowed zones of the air space in coordination with the competent bodies of Ukraine. There was no such coordination with the competent bodies of Ukraine. However Russian military (about their citizenship they informed the media) left their places of dislocation breaching the norms of the Agreement.

Taking into account the aforementioned, the activities of the Russian Federation are acts of the aggression, that is, they are international crime.

We remind that the international law foresees a special regime of international responsibility of the state, which violates the peremptory norms of the general international law, and the persons guilty of committing a crime of aggression carry personal criminal responsibility according to the international law.

Hereby, the actions of the Russian Federation create legal basis for Ukraine to realize its immutable right for individual and collective defense, which is secured in Article 51 of the UN Charter, including the address to the other states and structures to repel the external aggression.

Taking into account numerous violations of multilateral and bilateral treaties by the Russian Federation, Ukraine also has the right to stop execution of its commitments on bilateral treaties with Russia, particularly concerning the temporary deployment of the Black Sea Fleet of the Russian Federation on the territory of Ukraine.

The neglect of the fundamental principles of the international law by the Russian Federation will inevitably lead to the serious political, economic and military losses in the modern global world and to the destabilization of the situation not only in the Eastern Europe but within Russia as well. The usage of non-existent and unproved breaches of joint rights of population of the certain region or regions of Ukraine as cause for the military aggression can very likely become a precedent for similar military intervention into the domestic affairs of other countries from the side of the multinational Russian Federation and can be used by other states for the intervention into Russia’s domestic affairs and for the support of separatists movements in its particular regions.

The politics of the Russian Federation regarding Ukraine destroys not only the bilateral legal basis. It threatens the whole system of the international law.

The international law is and remains the instrument of the peaceful solving of disputes between the states. Any interference of one state into the domestic affairs of another state is impermissible and must be condemned by the international community.

We reiterate that the Russian Federation by its actions has violated the international peremptory norms (jus cogens), which are accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted (Article 53 of the Vienna Convention on the Law of Treaties). The norms jus cogens serve as a criterion for the determination of the legality of other norms and as a basis for the international law and order. Consequently, the declaration of the President of the Russian Federation on non-recognition of the Government of Ukraine is contrary to the international law.

Reasoning from the fact that the violation of the norms jus cogens is the direct infringement of the interests of world community in a whole, this creates the duty for states not to permit their being unpunished as “obligatio erga omnes”. Besides, the execution of the aggression act results in criminal responsibility of certain officials of the aggressor state.

 

6 March 2014

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