The Ukraine Crisis; Changes of Elusive Grundnorm or Fundamental Rule of Recognition

Ukraine Crisis – Change of Elusive Grundnorm or Fundamental Rule of Recognition Recent times is Ukraine has seen a kind of revolution, which was not seen in any part of the world since the post-World War era. In August 1991, Ukraine declared itself to be an independent state leaving USSR. 90% votes were for independence according to a referendum in December same year. In November 2004, Orange Revolution started after reports of far reaching vote-fixing in presidential race ostensibly won by pro- Russian candidate for president, Viktor Yanukovych. Opposition candidate Viktor Yushchenko leaded mass street dissents and civil disobedience. . But the Supreme Court annulled the results of the poll. Viktor Yushchenko won the re-elections. In February 2010, again Viktor Yanukovych was declared the winner in presidential election, judged free and fair by observers.

His main opposition, Prime Minister Yulia Tymoshenko, was arrested for abuse of powers. She was jailed in October 2011. In 2013, Viktor Yanukovych’s government refused to sign an agreement for close trade ties with the European Unions. Rather gained co-operation with Russia. Later in 2013, protests take a faster form. More than 100,000 people gathered at Kiev to protest.

This was the largest protest after the Orange revolution in the history of Ukraine. These protests, then took a violent turn. In early December 2013, the protestors occupied the Independence square and the Kiev City hall.

More than 800,000 people gathered for the demonstration. Russian President, Vladmir Putin made an offer to President Yanukovych. Russia agreed to buy 15$ billion of the Ukrainian debt and reduce the price of gas supplies to Ukraine by one third. By the end of January, Prime Minister Mykola Azarov resigned from his post. Later parliament also annulled the anti- protest law.

The parliament then passed the amnesty bill assuring to drop charges against all those people arrested in the protest if protesters agreed to leave the government buildings .But opposition rejected these conditions. The protestors but left the Kiev city hall and also the other government building they acquired in the region and the arrested protestors were released as promised. But the protest still continued to erupt. Kiev on 20th February witnessed the worst day in its history where about 100 people were killed and uniformed snipers were spotted shooting at the protestors. After signing a compromise deal with the opposition on 21st February, President Yanukovych disappeared.

The protestors took control of the administration buildings of the President’s office. Parliament voted to remove the president from the power in the upcoming elections. Yulia Tymoshenko was also freed from the jail soon after the president fled. But the President did appear on the television to denounce coup.

Parliament elected speaker Olexander Turchynov as the acting president. Also an arrest warrant was issued for Mr Yanukovych. The interim president warned nation of the dangers of separatism which were clearly eminent in the situation. Members of the expected new government appeared before protestors, and Arseniy Yatsenyuk was named the prime minister. Pro-Russian gunmen started their attempts to take over Crimea.

Unidentified uniformed gunmen appeared outside Crimean airport. These gunmen were speculated to be the Russian troops.

Vladamir Putin’s request to the parliament to use force in Ukraine with the purpose of the protecting the Russian interest was approved. Ukraine declared that Russia has officially declared war on them. In March 2014, Crimea’s parliament vote to join Russia. Meanwhile Russia had denied that the troops in Crimea are Russian but are self-defence forces. United States and United Kingdom warn Russia of new measures against them, if they don’t withdraw their troops from Ukraine.

Ukraine also requested US and UK to take all measures to prevent the Russian aggression in Ukraine. With an order from Ukraine’s acting President Olexander Turchynov Ukrainian troops left Crimea. But Russia’s aggression still continued with troops on Ukrainian border. If considering the jurisprudential aspect of the Ukranian crisis, there occurred a revolution, an old government was overthrown and the territories were invaded. Hans Kelsen’s principle of effectiveness is visibly applicable to the Ukraine crisis. According to Kelsen’s principle of effectiveness, an old legal order is invalid and people don’t follow it. This is because the old constitution and subsequently the legal order become devoid of validity and thus loose its efficacy.

The protestors in Ukraine overthrew the pro-Russia government when the pro-Russian president of Ukraine Viktor Yanukovych flee away to Russia. A new interim government was formed and the re-elections aimed at overthrowing the current President. The European Union and the United States of America, recognized this new interim government and considered it legitimate. According to the principle of International law, an actual established authority is the legitimate government. The order even if coercive given by this government is a legal order.

The new government thus formed in Ukraine is valid and the legal order has an efficacy. But Russia is not willing to recognize this government and considers the impeachment of President Yanukovych as illegal. Kelsen states that, a norm is valid not only because the legal order is efficacious but the norms are made in the constitutional way. Here the question, whether the government in Ukraine is constitutional or not? Russia claims that this new government is nothing but a coup, and is not a legitimate government instead President Yanukovych is still the legitimate President. If Yanukovych is still the President, then the old legal order is still valid, though not effective, as Kelsen said that effectiveness is just a condition and not a reason for validity of a norm. Kelsen states that men do not conform to an older legal order.

Men here means people and thus the people no longer conform to an old legal order[i]. In the case of Ukraine, the protestors who are the people of Ukraine wanted the new government, and thus they accepted the new government, which should be enough to apply the principle of effectiveness, as the people doesn’t consider the old legal order as valid which is as it is ineffective with the formation of new government. Also the theory of Grundnorm led down by Kelsen is somewhat in accordance with the situation in Ukraine. A Grundnorm is the term for basic norm[ii]. A Grundnorm change is a phenomenon which overthrows the current power of governance which can only be done through a political revolution[iii]. A Grundnorm can only be changed through a political revolution.

The Ukraine crisis is somewhat similar to a change of Grundnorm. The pro-Russian government which was ruling for a considerable time was overthrown by the people of Ukraine. The new Government form was considered as the existing legal order and the basic norm. The new Government was then the ground rule for Ukraine. As the new government was formed, arrest warrant was issued against President Viktor Yanukovych.

This can be seen as a Grundnorm which is changed. No one could have arrested President Yanukovych when he was in power and he had the Grundnorm. But now, the new government can arrest him. The term Grundnorm is used to express basic norm, order, or rule that forms an underlying basis for a legal system. The new government can be considered or will give a norm for the basis of legal system. But this is highly debatable as the new government cannot be said to be formed by popular will and is supported by those people of the country who are not pro-Russia. In the case of Republic of Fiji v Prasad, the court of appeals use the basis of the ‘principle of effectiveness’ laid down by Kelsen. In Fiji, the government appointed by the military failed to establish that it was a legitimate and legal government.

The judges quoted Kelsen stating that theory justified the seizure of power by force. The judgment also stated that a new regime having to prove that its rule was based on ‘popular acceptance and support’ as distinct from ‘tacit submission to coercion or fear of force’. The holding of elections would be ‘powerful evidence of efficacy’. In the case of Ukraine also the new government needed to prove popular acceptance. But this government was formed by overthrowing the previous one by the protestors. It cannot be said that the new Government in Ukraine has the popular acceptance if considering the Crimean region. The Crimean population is not in favour of this government.

The Crimean population is pro-Russia and thus is against this government. Also Ukraine has not gained de facto control over Crimea, though it is because of the Russian aggression in the region. But the question of popular acceptance is limited only to the region of Crimea and thus it can be said that, what happened in Ukraine was a Grundnorm change. The new government was successful revolution and will past the test laid down in the Fiji case accept when it comes to the region of Crimea where Crimea itself is expecting a Grundnorm change by wanting to join Russia. Like Kelsen, another jurist, H.L.A Hart’s theories can also be connected to the Ukraine crisis. The rule of recognition is a customary or, as Hart says, a social rule. It can also be said, it is a rule by virtue of being accepted by a certain group of people, viz. the legal officials.

The rule of recognition can therefore be described as a conventional rule[1]. The most essential one is that inasmuch as the rule of recognition is a social rule, the Grundnorm is only a presupposition, a thought in the personalities of legitimate researchers and others. According to Hart, only customary laws existed in the time where no law existed.

Customary law meant that a rule is accepted only if majority members accepted it. Even in the societies, where now the law exist, the majority should accept it. In Ukraine, the government of President Yanukovych was accepted by the people of Ukraine. But then why was a new government formed? Why did the parliament voted to impeach the President? This is because what Hart says it as normative uncertainty. There are numerous heterogeneous groups in the society which may disagree on some or the other norms of the society. For this uncertainty Hart lays down the rule of change. A rule of change confers power on a person or institution to create, modify or extinguish rules and may also specify the procedures to be used in exercising that power.

Since the rule of change empowers certain persons to amend the rules, behaviour may be shifted in the desired direction through the exercise of legal authority[2]. In the case of the Ukraine crisis, the question is whether the new government so formed in Ukraine is the desired direction? And if it is the desired direction, is it derived through exercise of legal authority. The new regime formed in Ukraine was a revolution. As the rule of recognition where primary law derives its authority from secondary law, has new government derived it’s authority from anything? The interim government formed in Ukraine was legitimate and needed to be formed as the President fled away. The US and the EU recognized the newly formed government as being legitimate. The protestors can thus be said the group who were conflicting on the norms of the legal system and thus got it changed. A group facing a drought can, for example, deliberately change the tithing rules and hence address the dire circumstances in an expeditious manner. The new government is not accepted by the majority. Crimea voted more than 90% to join the Russian federation.

Even Donetsk declared itself independent of Ukraine and wanted join Russia. Pro-Russia government was more desirable to this considerable population of the nation, thus not having popular acceptance of the new government. But this just not enough to decline the possibility of change of Grundnorm because there is a political revolution and the government is changed and it is only the population of Crimea and the some other parts of Ukraine which are pro-Russian are against the government but the majority part is for the government. It can be said that Crimea is another such group of the society facing normative uncertainty. Thus it can be called as a Grundnorm change.

For Hart,Rule of change because, a group of the society was unable to derive authority from the previous government and thus formed a new government for their interest. It was the change of rule of recognition. Because the rule of recognition is a social rule, it is capable of being an ultimate rule[3].Its existence is derived only because of its acceptance, whereas the primary rule derive its authority from the rule of recognition. Russia insists that Viktor Yanukovych remains the President, while the government of Ukraine denies it. This means Russia recognizes Russia of having two legal systems, whereas the case is that it has only one legal system which is the ultimate rule of recognition[iv]. Similar is the case for the regions like Crimea who want leave Ukraine and merge with Russia. For such regions, the rule of recognition will shift from Ukraine to Russia. Ukraine will lose its power to legislate over the issues of Crimea[v]. HLA Hart also talks about the applicability of the international law. According to Hart international law is self-imposed but there are exceptions to it. The two important exceptions are formation of new state and a state acquiring territory or other changes. In such cases the state is bound by the international obligations and the rules.

Considering the Ukraine crisis, Crimea either will be joining Russia or will form a separate state. In the former case Russia and in the latter case, the new state of Crimea will be bound by the obligation of international law[vi]. Also according to Kelsen’s theory of International law, there is a coercive element involved in International law which gives a legal right to a state to punish an offending state. But Russia’s armed interference in Ukraine was not supported by the international community.

Russia was asked to move back its troops from the Ukrainian borders. So this wasn’t the legal right Russia acquired to punish Ukraine as it is question whether Ukraine is an offending state or not. It can be inferred from the current situation of Ukraine that it is more tending towards Kelsen’s grundnorm rather than Hart’s rule of recognition. But also it doesn’t totally negate the Hart’s point of view. Political revolution and a Coup are the two main elements for turning wind to the change of Grundnorm but at the same time also taking with it the elements of the change of rule of recognition. But still if I am needed to choose only one out of the two, then I will say it is the Grundnorm change and not a change of Rule of Recognition.

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[1] Hart, CL II, supra note 96, p. 255.

[3] YALE LAW SCHOOL, Scott J. Shapiro, Research Paper No. 181, WHAT IS THE RULE OF RECOGNITION (AND DOES IT EXIST)? , https://papers.ssrn.com/abstract#1304645

[3] YALE LAW SCHOOL, Scott J. Shapiro, Research Paper No. 181, WHAT IS THE RULE OF RECOGNITION (AND DOES IT EXIST)? , https://papers.ssrn.com/abstract#1304645

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[i] If the old laws are regarded as valid it is because the new constitution has validated them expressly or tacitly (Kelsen 1967,209).The content of these norms remains unchanged but the reason for their validity changes as the old basic norm is displaced by the new. [ii] A legal norm exists because of a chain of validity that links it ultimately to the basic norm. The legal system is a system of legal norms connected to each other by their common origin, like the branches and leaves of a tree. [iii] Sometimes the basic norm of the legal order changes by means not authorised by the basic norm. This can happen in a number of different ways – sometimes violently, sometimes by peaceful and consensual means. It happens when one stateconquersanotherandimposesitsownsovereignpowerovertheconquered state.

The establishment of Crown sovereignty over Britain’s colonies subordinated local legal systems to the English law and constitution. It happens when a region of a country secedes from the whole and establishes its own legal order. [iv] it is possible that though in fact the legal system of the colony is now independent of its parent, the parent system may not recognize this fact. It may still be part of English law that the Westminster Parliament has retained, or can legally regain, power to legislate for the colony; and the domestic English courts may, if any cases involving a conflict between a Westminster statute and one of the local legislature comes before them, give effect to this view of the matter. In this case propositions of English law seem to conflict with fact. The law of the colony is not recognized in English courts as being what it is in fact: an independent legal system with its own local, ultimate rule of recognition. As a matter of fact there will be two legal systems, where English law will insist that there is only one But, just because one assertion is a statement of fact and the other a proposition of (English) law, the two do not logically conflict. [v] At this stage the legal system of the colony is plainly a subordinate part of a wider system char- acterized by the ultimate rule of recognition that what the Queen in Parliament enacts is law for (inter alia) the colony. At the end of the period of development we find that the ultimate rule of recognition has shifted, for the legal competence of the Westminster Parliament to legislate for the former colony is no longer recognized in its courts. It is still true that much of the constitutional structure of the former colony is to be found in the original statute of the Westminster Parliament: but this is now only an historical fact, for it no longer owes its contemporary legal status in the territory to the authority of the Westminster Parliament. [vi] The first is the case of a new state. It has never been doubted that when a new, independent state emerges into existence, as did Iraq in 1932, and Israel in 1948, it is bound by the general obligations of inter- national law including, among others, the rules that give binding force to treaties. Here the attempt to rest the new state’s international obligations on a ‘tacit’ or ‘inferred’ con- sent seems wholly threadbare. The second case is that of a state acquiring territory or undergoing some other change, which brings with it, for the first time, the incidence of obligations under rules which previously it had no opportunity either to observe or break, and to which it had no occasion to give or withhold consent. If a state, previously without access to the sea, acquires maritime territory, it is clear that this is enough to make it subject to all the rules of international law relating to the territorial waters and the high seas. Besides these, there are more debatable cases, mainly relating to the effect on non-parties of general or multilateral treaties; but these two important exceptions are enough to justify the suspicion that the general theory that all international obligation is self-imposed has been inspired by too much abstract dogma and too little respect for the facts.

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