Whom to Recognise?
Keeping in mind that last week we witnessed several unexpected changes of events in the country by the Dnieper, it is worth asking what will happen if Poland – or, more broadly, the European Union and other states – will have to choose between two rival governing camps in Ukraine, those of Viktor Yanukovych and Oleksandr Turchynov?
In essence, states are sovereign in their activity on the international scene. Their free will determines whether they will recognise a state, establish diplomatic relations with it or join one international organisation or another. There are no analogous norms that in a binding and unambiguous way would regulate the matter of recognising a government in controversial cases. The Charter of the United Nations of 1945 and, later, the norms of the Organisation for Security and Cooperation in Europe prohibit only the intervention in the internal matters of other states. Thus it is not permitted to overthrow governing authorities in a third state, replace it with new people and next recognise them as a government. The Russian Federation could use this argument by presenting the new Ukrainian authorities as puppets of the West.
In this context, we must take into account other matters. The criterion of the legality of the authorities is important. Viktor Yanukovych gained power in democratic elections, which practically nobody questions. This argument was used in this debate in Poland as an argument in favour of cooperation with this Donetsk politician and against the Maidan protesters. Presently, however, the situation has become more complicated because the current head of state was deprived of this function by the Parliament. The problem is that the legal context of this decision is, to put it lightly, unclear. In accordance with the clauses of the Constitution (both versions, which will be discussed later) the Ukrainian president’s powers expire prematurely in the cases of relinquishing the office, the incapacity to perform one’s functions because of health reasons, the compounding of the office in a special mode or death (Article 108). In the current situation, only the third scenario, that of impeachment, comes into play. In accordance with the Constitution, its execution requires the formation of a temporary court of inquiry and the recognition of the case by the Constitutional Court and the Supreme Court (Article 110). The Parliament’s decision to recall Yanukovych does not fulfil these criteria; it says it does not recognise it.
Another problem is the legality of amending the Constitution. In 2004, Ukraine’s 1996 Constitution was reformed, limiting the prerogatives of the president. This was one of the compromise elements ending the Orange Revolution. In 2010, after Yanukovych’s rise to power, the Constitutional Court deemed the reform to be unconstitutional, which caused a reversion to the situation before 2004. This decision had a strictly political basis and was very questionable from a legal perspective. Now, he Parliament has brought back the 2004 version of the Constitutional. The president, however, did not sign the constitutional reforms. Thus, the Parliament decided that they would come into life without his signature. In short, the criterion of legality was worth little.
However, one should differentiate the question of the legality of the new Ukrainian authorities form that of their legitimacy. In this case one can argue that Viktory Yanukovych has stopped being the rightful president of his country for at least three reasons. First, he lost the trust of part of the society. Second, he bears responsibility for the bloody events of the last few days in Kyiv, for the use of force against his own society, effectively deprecating the argument of the democratic mandate that Yanukovych received in 2010. Third, Yanukovych escaped from the capital and wanted to leave the country and not for health reasons, as the Constitution states, although he just as well could not fulfil ahis office.
Fourth, the materials found in Międzygórze have confirmed accusations of the thieving and banditry of the previous Ukrainian regime.
Although few admit this openly, a significant role will be played by the political orientation of the new and old elites. Viktor Yanukovych was out of necessity a partner for the Polish government. His authoritarian internal policies, his warming up to Russia and, above all decision to resign from the Association Agreement and attempt to pacify the Maidan, however, made him an increasingly difficult partner. For this reason Poland and the EU breathed a sigh of relief when the government was changed and there was a victory of political and social forces proclaiming democratic and pro-European slogans. On the contrary, Russia is unsatisfied with the current situation and thus must play the Yanukovych card.
Last but not least, one such consider the criterion of the effectiveness of one body of government or another. The protesters and the opposition have effectively gained control over Kyiv and the majority of the country. The previous government practically did not resist. Although on the night of Thursday to Friday Yanukovych spent many long hours negotiating an agreement with the foreign ministers of Poland, Germany and France, on the night of Friday to Saturday his camp began to collapse. The former president hid somewhere in eastern Ukraine and now it does not seem that he has the opportunity to effectively fight for control over the country. This argument, similarly like the previous one, speaks in favour of the recognition of the new authorities.
In conclusion, the legal-constitutional context of the changes in Ukraine and the legal-international conditions of recognising the Ukrainian authorities are ambiguous. The moral, political and purely pragmatic aspects, however, incline one to unambiguously collaborate with the new team.
This text was originally published in Polish by Nowa Europa Wschodnia.
Translated by Filip Mazurczak
Andrzej Szeptycki is an Assistant Professor of International Relations at the University of Warsaw.