Ukraine: Analyzing the Revolution and Nato Action in Light of the U.n. Charter and Nicaragua

• Citation: Vol. 30 No. 3
• Publication year: 2016
• topic: Military Law

Ukraine: Analyzing the Revolution and NATO Action in Light of the U.N. Charter and Nicaragua

Matthew Emery

UKRAINE: ANALYZING THE REVOLUTION AND NATO ACTION IN LIGHT OF THE U.N. CHARTER AND NICARAGUA

Abstract

Ukraine has been in a precarious position since its independence in 1991. It has been in the midst of an identity crisis. The eastern part of the country is partial to Russia, while the western half of the country prefers to be politically aligned with Europe. Since 2014, Ukraine has been wrought with a political coup, civil unrest in the Donbass region, and subject to Russian aggression. The current Ukrainian government established in wake of the coup is attempting to quell the uprisings from dissenters and Russian forces in the eastern part of the country, and NATO has diplomatically supported the current Ukrainian government. However, Ukraine is not a member of NATO, thus the country cannot avail itself of collective defense as set out in Article 5 of the NATO Treaty. This Comment argues that any assistance from NATO countries to the current Ukrainian government would violate the International Court of Justice's decision in Nicaragua v. United States because the current government is illegitimate.

Introduction

Ukraine is in the midst of a tug of war and has been since 1991. European influence pulls the country in one direction, while Russian influence pulls it in the opposite direction. Throughout 2014, Ukraine was divided by political revolution and was placed under political and military pressure by Russia. Russia has annexed the crimean peninsula and there is some evidence that it has fomented rebellion in eastern Ukraine.¹ These events have resulted in the highest tensions between Russia and the West since the height of the cold War. The North Atlantic Treaty Organization (NATO), one of the most formidable collective defense organizations in the world, has held special sessions addressing Ukraine, fearful of Russia's advancing and escalating aggression toward NATO members, and the United States has decided to place embargos on Russia.²

[Page 434]

Furthermore, the United States and other NATO members have supplied Ukraine with weapons in an effort to thwart Russia's advances.³ Article 5 of the North Atlantic Treaty permits NATO to engage in collective military defense on behalf of its members, but since Ukraine is not a member, NATO may not intervene militarily on behalf of the country.⁴ Ukraine is already internally divided as a result of former President Viktor Yanukovych's ouster and the subsequent establishment of a new governmental regime.⁵ Additionally, Russia's incursions and annexation of Ukrainian territory marked the first time since World War II that a country has invaded sovereign territory in Eastern Europe.⁶ NATO allies are fearful that Russian aggression will ultimately divide the Ukrainian state, resulting in a revival of Cold War tensions. NATO is hesitant to sit on its hands as Russia encroaches on its members, and it will look to support Ukraine as best it can. The world is watching NATO and Russia, as it is the next great geopolitical chess game to invoke the legal limits of a collective defense organization's resort to force. This is the situational crisis the West never hoped to see.

Prior to examining the legal ramifications of this crisis, it is imperative to set the historical and political stage. To approach the current Ukrainian crisis, Ukraine-Russian relations, and the interplay of NATO action, Part I of this Comment begins with a historical analysis of Ukraine and its connection to Russia. In order to fully understand where we are and where we are going, we must understand how we got here. While that expression is somewhat cliche, it exhibits unwavering truth. Part II of this Comment provides a brief historical analysis that will elucidate why Russians feel so strongly about Ukraine and portrays how the events that unfolded over the past several years are symptoms of deeper historical tensions between the two countries. After examining Ukraine's historical inception, this Comment analyzes the events that unfolded in Ukraine over the final months of 2013 and all of 2014.

Part III of this Comment examines what NATO countries may do to defend a non-NATO country, especially when its fall is of crucial consequence to

[Page 435]

nearby NATO countries. In other words, how much may NATO intervene on behalf of a non-NATO country? Part IV of this Comment examines the various legal issues involved in this crisis. It first examines the justifications for the use of force and then analyzes NATO's actions and purported justifications with respect to the use of force in Kosovo in 1999. It then examines whether the new Ukrainian government, established in the wake of the 2014 revolution, is legitimate.

The question of legitimacy has profound implications for whether NATO countries may provide the current Ukrainian government with weapons to secure its power and legitimacy over the eastern part of the country.⁷ If the government is not legitimate, then the United States and other NATO countries, in the contribution of arms and training of soldiers to and for the current Ukrainian government, would be in violation of the International Court of Justice's (ICJ) decision in Nicaragua v. United States.⁸ Part V of this Comment examines whether eastern Ukraine is being denied the right of self-determination and can thus engage in external self-determination to unite with Russia, a country with which it has closer ethnic, cultural, and political ties.

As a general proposition, Nicaragua stipulates that it is illegal for a state to intervene on behalf of a rebel group for the purpose of overthrowing a legitimate state government unless it is a war of national liberation.⁹ A war of national liberation is generally seen as legitimate because it is closely connected to the right of self-determination.¹⁰ In terms of Ukraine, the issue is whether the United States and other NATO countries may be violating Nicaragua by intervening on behalf of a government that is not legitimate. The current Ukrainian government is not what one would usually think of as rebels, but it was placed into power as a result of a revolution. Western Ukrainians vehemently rebelled against the prior government's political decisions, and the protests quickly developed into revolution and ouster of the President.¹¹ There was an immediate change of power with little regard for due process, and there

[Page 436]

was little justification for a revolution of such scale.¹² The current government is trying to take control over the entirety of the country, mainly through suppressing dissenters in eastern Ukraine.¹³ Although the current government is already in power and NATO did not assist in overthrowing the prior regime, NATO is attempting to help assert and establish the current government's legitimacy. In short, the West wants this current government in power for political reasons and weapons are being given to suppress the protesters in eastern Ukraine.

I. Historical, Cultural, and Political Development of Ukraine

A. Historical Development of Ukraine

The Ukrainian supreme soviet declared Ukraine to be independent from the Soviet Union on August 24, 1991, by a vote of 346 to one.¹⁴ The Declaration of Independence of Ukraine was put to a referendum a few months later and received overwhelming support.¹⁵ Later that same month, the Soviet Union officially dissolved, and Ukraine became an independent state.¹⁶ Previously, Ukraine had asserted independence during the Ukrainian Revolution in 1917,¹⁷ but that was short-lived because the country was overtaken by the Soviet Union in 1920.¹⁸

The Treaty of Riga, formalized in March 1921, officially established the Ukrainian Socialist Soviet Republic ("Uk SSR"),¹⁹ but also conceded much of current day western Ukraine (western Volhynia) to Poland.²⁰ During World War II, Soviet forces invaded Poland and annexed western Ukraine in an attempt to reunify the Soviet satellite country.²¹ After World War II, the Soviet

[Page 437]

Union seized more land from Poland, Romania, and Czechoslovakia, and annexed it to the Uk SSR.²² From the independence movement that unfolded in 1991, it is evident the idea of an independent Ukraine was never extinct, but only dormant.

B. Cultural Underpinnings of Ukraine

Russia has always had an interest in and felt a strong connection to Ukraine. Russian tsars viewed Ukraine as subordinate to Russian rule to such an extent that they often referred to Ukrainians as "Little Russians."²³ Much of Russia's fondness for Ukraine stems from both historical notions²⁴ and the fact that they are closely related culturally and linguistically.²⁵ Additionally, eastern Ukraine has abundant resources for the steel and agriculture industries,²⁶ providing an economic incentive for Russia to seize control of the country. Ukraine is a diverse country, with over one hundred different national or ethnic groups.²⁷ Ethnic Ukrainians make up approximately 78.8% of the population, but there is a sizeable minority of 17.3% ethnic Russians.²⁸ Furthermore, while the official language of the country is Ukrainian, with 67.5% claiming it as their native language, nearly thirty percent of the population claims Russian as their native language.²⁹ As a result of their common heritage, history, and proximity, the political affairs of Ukraine are inevitably intertwined with Russian interests.

Eastern Ukraine contains more ethnic Russians and therefore has a more pro-Russian or Eastern sentiment.³⁰ Western Ukraine is more interested in

[Page 438]

Westernization and favors closer ties to the European Union (EU), NATO, and the United States.³¹ Furthermore, the percentage of Ukrainians who identify Russian as their primary language is starkly more dramatic in the eastern part of the country when compared to the western part of the country.³² The eastern provinces of Ukraine have a much higher percentage of people...