The Yanukovych Letter: Intervention and Authority to Invite in International Law

• Author: Tom D. Grant
• Position: Wolfson College & the Lauterpacht Centre for International Law at the University of Cambridge
• Pages: 281-327

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2015 e Institute for Migrant Rights Press

281

Note. e present article expands upon a section of Chapter 2 of T D. G,

A  U: T, R  I L

(New York: Palgrave Macmillan, forthcoming June 2015). Work on this was done at the

Hoover Institution at Stanford University, where the author was a W. Glenn Campbell

and Rita Ricardo-Campbell National Fellow and the Edward Teller Fellow for academic

year 2013-14.

THE YANUKOVYCH LETTER

INTERVENTION AND AUTHORITY TO INVITE IN INTERNATIONAL LAW

THOMAS D. GRANT

Wolfson College & the Lauterpacht Centre for International Law at the University of Cambridge

E-mail: tdg20@cam.ac.uk

Situations exist in which a State may invite the use of force in its territory by

another State. When the sending State purports that the receiving State has

invited it, the onus is heavy to demonstrate that the receiving State has in truth

adopted a valid invitation. e Russian Federation, among its purported bases

for use of force in Ukraine, has referred to a letter from Viktor Yanukovych, a

politician who not long before had certainly been the president of Ukraine. e

letter called on Russia to intervene in Ukraine with force. If Yanukovych had

still been president at the time of the invitation, then it may be asked whether

this was one of the exceptional cases in which a purported consent may be invalid

as a matter of international law because it was made in manifest violation of

an internal law of fundamental importance (Article 46 VCLT). Another

question, arising in situations of internal disturbance, is how to determine

whether a given individual or organ constitutes the government of the State at

all. e Yanukovych letter raises this question too, along with the question of

the international law denition of intervention, a valid invitation of a counter-

intervention being possible only if there had been a prior similar act.

Keywords: Sovereignty, Humanitarian Intervention, Use of Force, Non-

intervention, Intervention by Invitation, Unilateral Acts, ird State Interests,

Annexation, Recognition of Governments.

The Indonesian Journal of International & Comparative Law Volume II Issue 2 (2015) at 281–328

Thomas D. Grant

282

I. INTRODUCTION

e Russian Federation adduced a number of putative legal bases for its

armed intervention in Ukraine, which began in early 2014 and contin-

ues to this day.1 Among these was a claim that the intervention was with

Ukraine’s consent and that by having given consent, Ukraine was accept-

ing Russia’s use of force in its territory against a prior intervention alleged-

ly perpetrated by Western countries. e Russian Federation transmitted

to the Security Council on March 3, 2014 a statement of the same date

purportedly made by Viktor Yanukovych.2 Yanukovych by then had ed,

and parliament had put in place an interim government.3 His statement

was as follows:

As the legally elected President of Ukraine, I hereby make the

following statement.

e events on the Maidan and the illegal seizure of power in Kyiv

have brought Ukraine to the brink of civil war. Chaos and anarchy

reign in the country, and people’s lives, safety and human rights are

under threat, particularly in the south-east and in Crimea. With the

inuence of Western countries, open acts of terror and violence are

being perpetrated and people are being persecuted on political and

linguistic grounds.

I therefore appeal to the President of Russia, V.V. Putin, to use the

armed forces of the Russian Federation to restore law and order, peace

and stability and to protect the people of Ukraine.”4

1. For overviews of the putative bases, see T D. G, A 

U: T, R  I L ch. 2 (2015);

Christian Marxsen, e Crimea Crisis: An International Law Perspective, 74

Z  A  R  V 367

(2014).

2. Letter from the Permanent Representative of the Russian Federation to the United

Nations addressed to the Secretary-General, S/2014/146, Annex (Mar. 3, 2014).

3. Statement of the Delegation of Ukraine to the OSCE, Extraordinary meeting

of the OSCE Permanent Council on Current Situation around Ukraine,

PC.DEL/222/14, (Mar. 3, 2014), at 3-4; House of Lords, European Union

Committee, 6th Report, Sess. 2014-15, e E.U. and Russia: Before and Beyond

the Crisis in Ukraine, Feb. 20, 2015, at 57-58, paras. 190-93. (U.K.); A

W, U C. W     W 94-96 (2014).

4. Annex, U.N. Doc. S/2014/146. For a cogent and contemporaneous overview,

see Zachary Vermeer, Intervention with the Consent of a Deposed (but Legitimate)

Thomas D. Grant

The Yanukovich Letter: Intervention and Authotrty to Invite in Iinternational Law

283

Jurists now acknowledge some scope for a request in aid against

“situations of internal disturbances and tensions, such as riots, isolated

and sporadic acts of violence and other acts of a similar nature, including

acts of terrorism, below the threshold of non-international armed

conict.”5 An armed intervention, even with valid consent, nevertheless

continues to raise serious questions when the purpose of the intervention

is solely to suppress an internal disturbance or to aid the receiving State

against rebels or insurrectionists.6 e intervening State therefore, when

claiming that it had the consent of the receiving State, typically also refers

to some other legal ground.7 Defence against an existing intervention

against the receiving State is perhaps the main, or most common, ground.

How one denes intervention, to this extent, is centrally important when

judging the lawfulness of an intervention which purports to serve the

defensive purposes of the receiving State. If the intervention is said to be a

response to a prior intervention, then the situation that exists at the time

of the intervention must fall within the denition—or else the counter-

interventionist argument at least to that extent must fail.

e present article begins by recalling the concept of intervention as

generally accepted in international law (Part II). Dierences exist as to the

outer limits of the denition; but agreement exists as to the basic core of

the concept. e “inuence of Western countries” that Mr. Yanukovych

said compelled him to seek foreign armed support, it will be seen, certainly

did not belong to the core.

An invitation still might have legal signicance when we undertake a

global assessment of Russia’s use of force in Ukraine. For one thing, there

Government? Playing the Sierra Leone Card, EJIL T (Mar. 6, 2014), http://

www.ejiltalk.org/intervention-with-the-consent-of-a-deposed-but-legitimate-

government-playing-the-sierra-leone-card/.

5. Special Rapporteur, Institut de Droit Int’l, Tenth Comm., Present Problems of the

Use of Force in International Law (Sept. 8, 2011) (by Gerhard Hafner), art. 2, para.

1.

6. See, e.g., éodore Christakis & Carine Bannelier, Volenti Non Fit Injuria? Les

Eets du Consentement à l’Intervention Militaire, 50 A F  D

I 102, 126-30 (2004); Patrick C.R. Terry, Afghanistan’s Civil War

(1979-1989): Illegal and Failed Foreign Interventions, 31 P Y.B. I’ L. 107,

162 (2011).

7. Christakis & Bannelier, supra note 6, at 121-127.