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Monday, August 8, 2022

Dr Miha Pogačnik: Russia’s recognition of sovereignty in the Luhansk and Donetsk regions is invalid under international law

By: Sara Rančigaj / Nova24tv

Expert in international law Dr Miha Pogačnik says that the recognition of the independent “People’s Republics” of Luhansk and Donetsk does not create a new statehood, because according to declarative law, recognition has only a declarative effect. According to him, in this case it was only a seeming legalisation of the incursion of armed forces into these areas, but because these two regions still fall under Ukraine, it is a violation of international law by Russia. “This is a gross violation of international law. According to Article 51 of the Charter, Ukraine has the right to individual or collective self-defence in such a case,” Pogačnik explained.

Russian President Vladimir Putin yesterday recognised the pro-Russian separatist regions of Lugansk and Donetsk in eastern Ukraine as independent “People’s Republics”. After addressing the nation on the situation in south-eastern Ukraine, which was broadcast on Russian state television, he signed a decree recognising them. Expert in international law Dr Miha Pogačnik emphasises that the self-proclaimed “People’s Republic of Lugansk” and the “People’s Republic of Donetsk” are not independent entities under international law, but part of an independent and sovereign Ukraine.

Russia has recognised the sovereignty of these two regions, which was the first step in seemingly legalising the incursion of Russian armed forces into these areas under the pretext of seeking order and peace. Recognition by Russia does not change this, because under international law, recognition has only a declarative effect and does not create a new statehood. “By doing so, it was actually trying to cover up the fact that these areas are an integral part of the independent and sovereign state of Ukraine.”

By doing so, Russia has in fact sought to obscure the fact that under international law it is quite clearly aggression, as defined by the United Nations Charter, that it is an armed attack on the independent and sovereign state of Ukraine. “This is a gross violation of international law. According to Article 51 of the Charter, Ukraine has the right to individual or collective self-defence in such a case,” he explained.

Ukraine has the right to apply for collective self-defence

Collective self-defence would occur if other countries wanted to intervene militarily, but for now, other countries are focusing mainly on economic sanctions. Under international law, however, Ukraine can apply for collective self-defence to some other countries, in fact any in the world. “The aggression against an independent and sovereign Ukraine is essentially a violation of the coherent norm of international law, which means that the interest of all countries on this planet in international peace and security is being violated,” he explained.

States are absolutely entitled not only to peaceful measures, but, as has been said, the use of counterforce is also possible. “According to Article 51, Ukraine has the right to self-defence under the conditions set out in the Charter. This is a condition of proportionality of urgency and notification to the United Nations Security Council (UN),” he added.

Russia, as a permanent member of the UN, can prevent them from taking action

Ukraine will certainly inform the UN Security Council, but it is quite clear what will happen, as Russia is a permanent member of the UN Security Council and has the right to veto. “If Russia were not a member of the UN Security Council, another option would be the use of force and action by the UN Security Council. An armed operation led by the UN would take place, but of course this will not happen because Russia is a permanent member and has the right to veto,” Pogačnik added.

In the future, events in the problem area will take place in several phases. Putin has a legal option here to annex these territories to Russia, but such a legal option would not be valid under international law, because the principle of “ex iniuria ius non oritur” applies in international law. “This means that an illegal act or situation cannot create rights. Russia’s aggression in these areas is illegal because the aggression against independent and sovereign Ukraine took place, and then all this further Russian ‘exercise’ should not have any effect under international law,” he explained.

The question that arises now is also whether Russia will continue to conquer territories to some extent where it still pays off in the sense that it would not have too many military casualties. “It is too early to judge. At some stage, in my opinion, this matter will be stopped and the question of the status of the remaining impoverished part of the territory of Ukraine will be raised,” he said, suggesting that this could also be permanent neutrality or something else. “It is too early to judge.”

It is a crime that has already been tried

Putin wanted to cover his plan legally and internally by getting coverage from the Russian parliament or the Russian Duma. “But under international law, this has no effect. The state can cover itself under domestic law, but under international law this is a clear aggression and an international crime,” he added. It is essential to know that Russia has committed aggression, which is a crime under international law. “This is actually a crime that has already been tried at the Nuremberg tribunal, but today it is a completely aggressive war, and it is clearly forbidden. Crimes against peace are also part of the crimes for which the Roman tribunal has jurisdiction, the Permanent Criminal Court in Rome,” he said.

Ukraine is not in NATO, so NATO has no international defence obligations to Ukraine. “Politically, of course, we have an element of European security and cooperation, where there is certainly a commitment from European countries to do everything to stop Russia. Whether this can be returned to its original state, I fear, will be difficult, because in international law this principle of effectiveness is very strong. That is to say, once something happens, it is difficult to get things back to normal,” he said, explaining the case of the Turkish occupation of Northern Cyprus, which was also illegal under international law, but the actual situation on the field may be different than the legal status.

The UK has already imposed economic sanctions

NATO and the EU can remotely do everything politically to stop Russia. Of course, peaceful countermeasures are possible first, which will happen or have already happened. This morning, the United Kingdom decided to impose economic sanctions, and it is likely that the European Union and other countries will do the same in the foreseeable future. The UK is expected to negotiate sanctions with the EU. “This is practically in the interests of all countries that want European peace and stability. So, Russia will certainly face a series of sanctions, not only from the EU and NATO members, but probably also from third countries that value the international security aspect and respect Ukraine as an independent and sovereign state,” Pogačnik said at the end.

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