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On violations of the peremptory norms of general international law (jus cogens) by the Russian Federation
10 mars 2014 13:03

Aide-mémoire of the Minisrty of Foreign affairs of Ukraine, 6 march 2014

On 1 March 2014, at 5.21 p.m. Kyiv time, the Federation Council of the Federal Assembly of the Russian Federation unanimously supported the appeal of President of the Russian Federation V.V. Putin on the deployment of a «limited military contingent» of the Armed Forces of Russia into the territory of Ukraine.

This decision was taken in breach 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 Ukraine and the Russian Federation of 1997 and other international treaties. At the same time, the emphatic refusal of the Russian Federation to conduct preliminary consultations with Ukraine and the guarantorStates of its territorial integrity (the United Kingdom, USA, France and China) is indicative of the neglect of their obligations under international law, enshrined in the Budapest Memorandum of 1994.

While taking the decision to bring the armed forces into the territory of an independent sovereign State, one of the founders of the United Nations, the Federation Council of the FA of the RF misrepresented the meaning of the rules of international law concerning the situations where the protection of the rights and legitimate interests of its own citizens located outside the territory of their State, requires military intervention of the State of their nationality. Pursuant to the Constitution of Ukraine and relevant rules of international law, the Autonomous Republic of Crimea is an integral part of Ukraine and one of the administrative-territorial units of the Ukrainian state. We stress that no duly authorized national, foreign or international institution has declared any violation of human rights in the territory of Ukraine (in particular, in the Autonomous Republic of Crimea) which would have required the intervention of any subject of international law or the international community. Thus, the appeal of self-proclaimed heads of the administrative units of Ukraine – the Autonomous Republic of Crimea – to the Russian authorities requesting military aid is unlawful, and any decisions taken on the basis of the appeal are void.

Applying the principle of good faith in the interpretation of treaties, we claim a material breach of the Agreement between Ukraine and the Russian Federation on the Status and Conditions of the Presence of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine of 8 August 1997 (which was extended in April 2010), in particular Article 6, paragraph 1, which determines that the military units of the Black Sea Fleet «shall operate in areas of stationing in accordance with the legislation of the Russian Federation, respect the sovereignty of Ukraine, observe its legislation and refrain from interference in the internal affairs of Ukraine.». Article 8, paragraph 2, under which the military forces of the Black Sea Fleet «carry out exercises and other activities of combat and operational trainings within the training centres, facilities, positioning and dispersal areas, shooting ranges and, except for prohibited areas, in the designated airspace areas with the concurrence of the competent authorities of Ukraine», has also been breached.

According to the information we possess, no such consent of the competent authorities of Ukraine has been obtained by the relevant authorities of the Russian Federation. However, the Russian troops (they confirmed their own nationality to the media) have left the areas of their stationing in violation of the Agreement.

 Taking into account the above mentioned, we qualify the actions of the Russian Federation as an act of aggression which is an international crime. We recall that international law provides for a special regime of international responsibility of a State violating the peremptory norms of general international law, whereas the persons responsible for committing the crime of aggression incur individual criminal responsibility under international law.

The neglect of the fundamental principles of international law by the Russian Federation will inevitably lead to serious political, economic, military losses in today’s global world, destabilization of the situation not only in Eastern Europe, but also within Russia. The use by Russia of imaginary violation of collective rights of communities of a certain region or regions in Ukraine in the future as an excuse for military aggression is likely to become a precedent for similar military intervention in the internal affairs of other States by the multinational Russian Federation and can be exploited by other States for intervention in the internal affairs of Russia and support for separatist movements in its individual regions.

Thus, the actions of the Russian Federation provide the legal grounds for the exercise of Ukraine’s inherent right to individual and collective self-defense, as set out in Article 51 of the UN Charter. It is necessary for the Ukrainian leadership to hold urgent consultations with the States which could potentially stand by Ukraine’s side to repel foreign aggression. Taking into account the numerous violations by the Russian Federation of multilateral and bilateral agreements, Ukraine also has the right to cease the execution of any of its obligations under bilateral agreements with Russia, in particular with respect to the temporary deployment of the Russian Black Sea Fleet in the territory of Ukraine.

The policy of the Russian Federation towards Ukraine is undermining not only the bilateral international legal framework. It threatens the overall system of international law.

International law has always been and remains a tool of peaceful settlement of disputes between States. Any intervention of one State in the internal affairs of the other is unacceptable and must be condemned by the international community.

 We reiterate once again that the Russian Federation violated by its actions the peremptory norms of general international law (jus cogens), which are accepted and recognized accepted by the international community of states as a norm from which no derogation is permitted (Article 53 of the Vienna Convention on the Law of Treaties, 1969). Jus cogens norms are the criteria for determining the legality of other rules of international law and the foundation of the international law-and-order. Thus, the statement of the President of the Russian Federation Vladimir Putin on non-recognition of the Government of Ukraine contradicts the international law.

 Proceeding from the fact that violation of jus cogens norms by the Russian Federation constitutes an encroachment on the interests of the world community as a whole, it creates the obligation for states to prevent their impunity as obligatio erga omnes (obligation towards all). At the same time, the commitment of the crime of aggression entails criminal liability of certain officials of the aggressor state.

6 March 2014

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