(Un)Invited Guests: The Validity of Russia’s Argument on Intervention by Invitation

On 3 March 2014 at the emergency UN Security Council meeting on Ukraine, called by Russia to set out in detail its policy, Russia’s UN ambassador clarified that Moscow does not consider returning Yanukovych to power as its task (even though Russian president Vladimir Putin outlined during his press-conference, held on 4^th March, that Viktor Yanukovich was ousted in an unconstitutional coup), but that it seeks to enforce the obligations established by the Agreement from 21 February, including the triggering of the proposed constitutional reform and formation of legitimate government with participation of all Ukrainian regions as well as all political forces for further approval of the reform at the national referendum.

In addition, Mr Churkin has presented a copy of the Ukraine’s fugitive president’s request to use Russian soldiers in the strategic Crimea region “to establish legitimacy, peace, law and order.” He also claimed that Russia’s actions are “absolutely adequate and legitimate” and has reminded that according to current bilateral agreement Russia is permitted to deploy up to 25,000 soldiers in Crimea.

(Un)Invited Guests: The Validity of Russia’s Argument on Intervention by Invitation

One of Russia’s main legal arguments to justify the use of force against Ukraine appears to be the invitation by the legitimate government of Ukraine (represented, in Russia’s version, by Viktor Yanukovich). This is further evidenced by the most recent claim by Russia’s President Vladimir Putin that Yanukovich is still de jure President of Ukraine (even if de facto ousted). Indeed, the use of force upon request issued by a country’s government is lawful, as recognized by the International Court of Justice (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), para. 246) and the International Law Commission (Draft articles on Responsibility of States for Internationally Wrongful Acts, Commentary to Art. 20, para. 5). However, there are serious difficulties with this kind of argument when applied to the ongoing crisis in Ukraine and Yanukovich’s current situation. The argument is weak irrespective of whether one sticks to the traditional theory of effective control or to the novel theory of popular sovereignty.

Under the effective control theory, the sole authority entitled to speak on behalf of a State is the one which has permanent de facto control over that State’s territory and population. Accordingly, once effective control is called into doubt (as Doswald-Beck notes, “particularly if the rebellion is widespread and seriously aimed at the overthrow of the incumbent regime”), the incumbent government is deprived of its right to request foreign military intervention (Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’, (1985) 56 BYBIL 189). Even assuming that the anti-Maidan demonstrators in the south and east of Ukraine are loyal to Yanukovich (which is unclear), this still leaves the country split between the two governments and therefore neither side can invite foreign troops.

Under the popular sovereignty theory (apparently relied upon by the Russian officials) the loss of effective control does not affect the continued legitimacy of a democratically elected (and unconstitutionally overthrown) government. However, this theory has been recently applied only to cases of military coups d’etat and not to widespread social protests against the (once) popular government (see e.g. UN General Assembly Resolution 63/301 (2009) on a coup d’etat in Honduras; UN General Assembly Resolution 46/7 (1991) on a coup d’etat in Haiti). Indeed, where the overthrow of the government is due to the decline in popular support, that government can no longer rely on prior elections to substantiate its continuing right to invite foreign military assistance. Indeed, the recent Resolution “Military Assistance on Request” by the Institut de Droit International declares that “[m]ilitary assistance [upon request] is prohibited when (…) its object is to support an established government against its own population” (Article 3(1)). Thus, even assuming the initial democratic legitimacy of Yanukovich, he could not rely on Russian military forces to compensate for his recent failures in internal politics which turned many of his former supporters against him.

Under both theories, the validity of Yanukovich’s invitation to Russia is highly doubtful. In any event, since a request for foreign military assistance is a much more serious issue than an invitation, say, for a business visit of a foreign official to Mezhigorye (Yanukovich’s former residence), other safeguards against abuse must be applied with thorough scrutiny (the verification of authenticity of the request being the primary one of them).