683 Het laatste woord over de Krim annexatie.

De Saker heeft aan Alerxander Mercouris gevraagd hoe het juridisch zit, mbt de VN en de legaliteit van de afscheiding van de Ukraine.

We lezen hieronder vraag en antwoord.

In de reacties krijgen we nog wat informatie over de historische gang van zaken.

Dear Alexander

I just read this: http://theduran.com/general-assembly-vote-jerusalem-nikki-haley/

Where the author mentioned that:

“the UN General Assembly convened today under the extraordinary procedure created by UN General Assembly Resolution 377 (V) (A) on 3rd November 1950. This procedure – known as “Uniting for Peace” – can be invoked by the UN General Assembly whenever the UN Security Council is unable to reach a consensus on any issue which affects peace.”

the author further  writes:

“However though a resolution of the UN General Assembly made in accordance with the “Uniting for Peace” procedure is legally binding on UN Member States, there is no mechanism to enforce it, as there is when the UN Security Council votes for a resolution made under Chapter VII of the UN Charter”

I was not aware of this procedure and I wanted to ask you this: has the Russian protection of the Crimean referendum and the subsequent admission of Crimea into the Russian Federation ever been condemned by the UN General Assembly under that procedure?

Specifically, is Russia currently in violation of international law regardless of any issues of enforceability.

Last but not least, do you know of other instances when the UNGA voted under this procedure to basically overrule the UNSC?

If you could clarify this for me I would be most grateful.

Kind regards,

The Saker

——-

Dear Saker,

I can answer all these questions.

(1) “Uniting for Peace” was a device sponsored by the US in 1950 in order to circumvent Soviet vetoes during the Korean war. At the time it was legally controversial and as Professor Tomuschal (quoted in the article) has pointed out, it actually contradicts the UN Charter. However in 1950 the US controlled the UN and the international court system as totally as it ever has done since (thus the Soviet vetoes) and it was able to get the “Uniting for Peace” procedure accepted.

(2) It has however only been invoked very rarely, in total no more than eleven times (the UN General Assembly vote on Jerusalem being the eleventh).

(3) The point about a “Uniting for Peace” Resolution passed by the UN General Assembly is that it becomes a part of international law. I can therefore be cited as legally binding in cases before the International Court of Justice (“the World Court”) or indeed other international courts. However it is not legally enforceable except through the UN Security Council. Since the “Uniting for Peace” procedure is by definition only invoked when the UN Security Council cannot agree this has robbed it of its effectiveness.

(4) Now comes the key point.

The UN General Assembly has NEVER declared the the Crimean referendum and the unification of Crimea with Russia illegal under the “Uniting for Peace” procedure.

To my knowledge the only time the “Uniting for Peace” procedure was used against Russia was in 1980 to declare the Soviet intervention in Afghanistan illegal. Though Russia is in a consistent minority in the UN Security Council the US has never succeeded in mobilising sufficient support against Russia in the General Assembly to secure a “Uniting for Peace” resolution against it on any issue since the 1980 vote on Afghanistan.

The UN General Assembly did vote on the question of the Crimean referendum in March 2014 but the resolution was non-binding and was not brought under the “Uniting for Peace” procedure.

Moreover only 100 out of the 193 UN Member States supported it (11 states including of course Russia voted against it; 58 states including India and China and totally 58% of the world’s population abstained, and 11 states including Iran and Israel failed to take part in the vote, which is a form of abstention).

This was virtually a defeat for the US and Ukraine because for a resolution to pass the UN General Assembly it must have the support of more than half of all UN Member States ie. – since the UN has 193 Member States – at least 97 UN Member States must vote for it.

In other words the resolution on the Crimean referendum was not merely non-binding but it only just squeaked past with just 100 votes in favour.

Given that the US had the automatic support of all the NATO/EU states in the voting that underscored how little support for the US/Ukrainian position on Crimea there actually is outside the Western Alliance with key countries like China, India, Brazil, South Africa, Pakistan and Vietnam refusing to support the resolution.

Needless to say the US has not risked another vote on Crimea since then, whereas during the 1980s it staged UN General Assembly votes criticising the Soviet intervention in Afghanistan regular as clockwork every year.

Needless to say the March 2014 UN General Assembly vote on Crimea is not something that you hear Western commentators bring up precisely because it was so close to being a debacle.

The result is that there is NO legal finding either by the International Court of Justice or by the UN General Assembly or by the UN Security Council that Russia is in violation of international law on the Crimea issue and those who say it is have no international consensus on this issue behind them.

I presume you are familiar with the International Court of Justice’s Advisory Opinion on Kosovo which says quite clearly that unilateral declarations of independence such as the one made by Crimea in 2014 are not contrary to international law even if made in contravention of the constitution of the country the region making them is seceding from?

That too means that the Crimean declaration of independence of 2014 and Crimea’s subsequent decision to join Russia is NOT contrary to international law. Putin repeatedly points this out but the US – which lobbied the International Court of Justice hard for the Advisory Opinion on Kosovo (just as it lobbied in 1950 for the “Uniting for Peace” procedure) prefers to forget it and you never seen the Advisory Opinion on Kosovo ever brought up in any Western discussion of the Crimean issue.

It is of course because of the Advisory Opinion on Kosovo and the UN General Assembly’s failure to pass a binding “Uniting for Peace” resolution declaring Crimea’s union with Russia illegal that Ukraine has never brought legal action against Russia on the Crimean question in the International Court of Justice.

I trust this answers your questions? Please do not hesitate to contact me is there is any other point you want me to clarify.

Best Wishes,

Alexander

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1. Larchmonter445 on December 21, 2017  ·  at 11:21 pm UTC

   Excellent expository from Mercouris.

   The legal basis for Crimea goes back to Lenin separating Ukraine from Russia, I read recently. That was illegal, as this story goes. And thus, too, the 1954 separation of Crimea from Russia, which definitely was illegal according to the Constitution of the USSR.

   So, even if the fact that three referendums by the people of Crimea that they wanted to be back within the Russian Federation is not enough worthy evidence, the legal basis for considering who Crimea belonged to seems self-evident. Russia.

   It never in any way was Ukraine. Ukraine was Russian and Crimea was always Russian. That the vote was always, in all three elections, 95% for Russia seems to ice it.

   It’s really an internal matter. Constitutionally, before and after the USSR, and subsequently, after the Russian Federation was constituted.

   Ukraine and the World don’t get a say. Period. The people of Crimea and their fellow citizens in Russia proper decided.

   Done and done.

   Reply
   • 

     Veritas on December 22, 2017  ·  at 8:38 am UTC

     In addition to your points Larch445 – I remember reading around the re-unification of Crimea with Russia that the other issue facing the US/NATO and its allies was the fact that Russia and Ukraine have never ratified their borders since the dissolution of the Soviet Union.

     To add further to Alexander’s points above – recently there was another vote in the UNGA 3rd committee around “human rights” in Crimea. “The UN General Assembly’s Third Committee approved a resolution decrying human right abuses by Russia on the Crimean Peninsula. Delegations from Russia, China, Iran and Syria voted against the measure.”

     This is the only area where Ukraine/US/EU/NATO gets any traction at the UN – though they never visit the Crimean peninsula and base it on lies by Ukraine.

     Reply
2. 

   Anonymous on December 21, 2017  ·  at 11:43 pm UTC

   Dear Saker,
   this is a very interesting article!
   Would it be possible to ask Mr. Mercouris on our behalf to produce a (preferably, lengthy) introduction on the subject?
   International law is almost never brought up in the media, and I would think that many of us would like to learn more on what its says on the subject.

   Thanks

   Reply
3. 

   Cyrus I on December 22, 2017  ·  at 1:11 am UTC

   Ok, am I missing something here? I just can’t figure this one out maybe someone could explain it to me?

   “since the UN has 193 Member States – at least 97 UN Member States must vote for it”

   But it says that “moreover only 100 out of the 193 UN Member States supported it”

   That’s clearly over 97 right?

   What am I not getting?

   Thx

   Reply
   • 

     Erebus on December 22, 2017  ·  at 2:01 am UTC

     Apparently, you’re missing the part where Mercouris says: “In other words the resolution on the Crimean referendum was not merely non-binding but it only just squeaked past with just 100 votes in favour.”

     The point being that even in a non-binding vote of no real consequence, an opinion poll really, the US couldn’t strong arm enough support to win convincingly.

     Reply
   • 

     Anonymous on December 22, 2017  ·  at 4:31 am UTC

     You are also missing this:
     “The UN General Assembly did vote on the question of the Crimean referendum in March 2014 but the resolution was non-binding and was not brought under the “Uniting for Peace” procedure. “

     They took opinion poll, as Erebus said, which didn’t go well.

     Reply
4. 

   JJ on December 22, 2017  ·  at 6:12 am UTC

   Ukraine tried to get around all this by attempting to get Russia declared something like a terrorist state or supporting terrorism at ICJ few months ago….logo
   EUROPE
   UN Court Rejects Provisional Measures on Russia Over Ukraine

   April 19, 2017 8:30 PM
   Daniel Schearf
   FILE – The International Court of Justice (ICJ), principal judicial organ of the U.N., holds hearings in the case concerning the Application of the International Convention for the Suppression of Financing Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) at the Peace Palace in The Hague, March 6, 2017.
   FILE – The International Court of Justice (ICJ), principal judicial organ of the U.N., holds hearings in the case concerning the Application of the International Convention for the Suppression of Financing Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) at the Peace Palace in The Hague, March 6, 2017.
   See comments
   The International Court of Justice (ICJ) at The Hague has rejected Kyiv’s call to impose provisional measures against Russia for its support of rebels in eastern Ukraine, while acknowledging Kyiv has a case against Moscow for discrimination in Russia-annexed Crimea.

   “At this stage of the proceedings, Ukraine has not put before the court evidence which affords a sufficient basis to find it plausible that these elements are present,” said Presiding Judge Ronny Abraham. “Therefore, the court concludes that the conditions required for the indication of provisional measures in respect of the rights alleged by Ukraine on the basis of ICSFT [International Council Supporting Fair Trial] are not met.”

   The ICJ said Kyiv had failed to provide evidence that Russian funding was connected directly to civilian deaths in Ukraine, where 10,000 people have perished since fighting broke out in February 2014.

   Kyiv filed a lawsuit against Russia at the ICJ for intervening militarily in Ukraine, financing separatists that Kyiv labels “terrorists,” the shooting down of civilian passenger plane MH17 in July 2014, and discriminating against Crimean Tatars and Ukrainians in the annexed peninsula.

   Ukraine asked the United Nations-established court to take provisional measures to stop Russia from fueling the conflict, as it can take months for the court to decide if it will take a case.

   FILE – The Agents of the Russian Federation, Roman A. Kolodkin, Ilya Rogachev and Grigory Lukiyantsev, attend the opening day of hearings at the International Court of Justice in The Hague, March 6, 2017.
   FILE – The Agents of the Russian Federation, Roman A. Kolodkin, Ilya Rogachev and Grigory Lukiyantsev, attend the opening day of hearings at the International Court of Justice in The Hague, March 6, 2017.

   ‘Supporting terrorism’ rejected

   The court’s ruling Wednesday means the ICJ will make no immediate demand against Russia for violating the International Convention for the Suppression of Financing Terrorism, as Kyiv was seeking.

   “From the very start, there was an incorrect approach in determining the status of both the [self-proclaimed] LNR [Lugansk Peoples’ Republic] and DNR [Donetsk Peoples’ Republic] as terrorist groupings, but they are no Islamic State,” said Kyiv’s Institute of Global Strategies’ Vadim Karasev. “They are rather classical separatist groupings.”

   While evidence has accumulated in reports of Russia’s military support for the conflict, analysts and observers say calling it terrorism hampered Kyiv’s case.

   While the ICJ rejected provisional measures against Russia, it demanded Moscow ensure the rights of minority Tatars and Ukrainians in Russia-annexed Crimea and said Kyiv had a case showing otherwise.

   “With regards to the situation in Crimea, the Russian Federation must comply in accordance with its obligation under International Convention on the Elimination of All Forms of Racial Discrimination,” said ICJ’s Abraham.

   Crimean Tatars were some of the most vocal opponents of Russia’s annexing of the peninsula in March 2014. Thousands have since fled as Russia took control of Tatar media and banned the highest body representing the minority group, the Mejlis.

   The ICJ urged Moscow to end its limitations on the Crimean Tatar community’s representative institutions, like the Mejlis. The judges said Russia must also ensure there are no limits on access to Ukrainian language education on the peninsula.

   FILE – The Agent of Ukraine, Olena Zerkal, speaks on opening day of hearings in the case of Ukraine v. Russian Federation at the International Court of Justice, The Hague, March 6, 2017.

   Welcomed decision

   Despite the court’s rejection, Ukrainian President Petro Poroshenko, speaking during a visit to London, welcomed the ruling.

   “The international court in The Hague recognized its jurisdiction over both court cases. We are confident that today we are pursuing the right course, and hope for a successful hearing of these cases,” he said.

   “For us, this decision of the court is a positive one,” said Ukraine’s deputy foreign minister, Olena Zerkal. “We proved our position and we see that we have a very good perspective for the hearings on merits, and we’re going to actually put forward all our intentions and efforts in order to prove our position on merits.”

   Russian officials also welcomed the interim ruling.

   The State Duma international affairs committee’s first deputy chairman, Dmitry Novikov, said it was “quite natural” the court made such a decision.

   “If any court demonstrates minimal objectivity in pronouncing judgments, it should make these decisions on the basis of certain evidence. The fact that there is no evidence of Russia’s support to terrorism, it is quite a natural thing, and the fact that the court has to agree on it, is quite a natural thing,” Novikov told Russia’s Interfax news agency.

   “Submission of a lawsuit by Ukraine, it is clear that it is a part of an information and political war, which the Ukrainian authorities are waging against Russia, involving different international institutions, such as the U.N. International Court in The Hague,” he added.

   Analysts described the ruling Wednesday as balanced and expected.

   “Meaning that, well, it’s a pretty well-balanced decision when neither Ukrainian nor Russian side can feel like they’ve been somehow, well, humiliated by the decision,” said Nickolay Petrov, head of the Center for Political Geographic Research. “And, at the same time, it’s only the beginning of a long-term process.”

   Russia has already rejected the authority of the court, which does not have the ability to enforce any of its rulings.

   “Yes, but symbols do play a very important role in international politics,” noted Petrov. “That’s why Russian authorities do pay a lot of attention on different international court rulings. And, it’s understandable that they’re trying to avoid any cases where Russia can be really punished for violating international laws.”

   While the ICJ rejected making immediate demands against Russia for supporting Ukraine’s rebels, it urged both sides not to take any actions that would aggravate the conflict.”

   Reply
5. 

   anon on December 22, 2017  ·  at 9:13 am UTC

   When rails run under Bearing Strait Alaska might vote. As rails run South – Vancouver, Washington State, Oregon, California down to the Mexican border…which will be at Sacramento… If that’s the way the rails run. Law follows the rails playing catchup.

   Interesting to remember that there is no question of Justice except between equals of Power – over the long period. “Law” runs along nearby as Power moves – and there is Latency.

   Old Laws can be a Problem. As is pointed out in the posted essay.

   Good and Welcome essay. Thanks!

   Reply
6. 

   Katherine on December 22, 2017  ·  at 11:52 am UTC

   Very interesting.
   Also answers one of my own questions:
   Why did Haley emphasize UNSC decisions so strongly. That is, Israel is in compliance with UNSC decisions.
   Of course, all controlled by the USA.

   I still don’t quite get the difference between abstaining and not showing up to vote;
   The end result seems to be the same. What is the rhetorical point here?
   Katherine

   Reply
7. 

   Internal Exile USA on December 22, 2017  ·  at 12:02 pm UTC

   Thanks so much for this crucial information, which will surely come in handy in the next few days around putative family dinner tables. The q/a is truly an article in itself.

   Reply
8. 

   Azorka1861 on December 22, 2017  ·  at 12:28 pm UTC

   PM Netanyahu just rocked the world in this 2 minute speech
   https://www.youtube.com/watch?v=xGIg8hryaPE

   Netanyahu: like king David – we will destroy any enemy
   https://www.youtube.com/watch?v=_AMPbP2Qpyg

   Israel’ Netanyahu calls U.N. “house of lies” before Jerusalem vote
   https://www.reuters.com/article/us-trump-israel-un-netanyahu/israels-netanyahu-calls-u-n-house-of-lies-before-jerusalem-vote-idUSKBN1EF14U

   Reply