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  • 22 Mar 2014 3:28 PM | Myroslaw Smorodsky (Administrator)

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    ANALYTICAL STATEMENT:

    Is Ukraine the Canary in the European Coal Mine?

                   An invasion and occupation of another European country’s territory constitutes what German chancellor Angela Merkel has accurately described as conduct reflective of the law of the jungle.   Such conduct is in itself dangerous to the Euro-Atlantic region’s safety and stability.  But when it is combined with a host of other factors involving authoritarianism, recently introduced indicia of totalitarianism, and a toxic and delusional ideology then such conduct becomes so alarming as to require sustained, resolute and severe counter measures beginning with economic and political sanctions and, if such conduct continues, possibly even military counter measures.

                   Russian president Putin’s invasion and occupation of Crimea are not merely the actions of a bully, which would be bad enough.  It is incontrovertible that his Russia is an authoritarian state in which he controls the legislature and judiciary as well as traditional media.  But what is worse, he and his former colleagues at the KGB who are now his closest advisors have recently launched a campaign to silence the remaining independent media voices in Russia by, for example, replacing the longtime editor-in-chief of the news agency Lenta.ru with a Kremlin toady and forcing all major cable providers to remove Dozhd, an independent news outlet, from the air.  This makes it possible for the Putin regime to lie about what is happening in Ukraine with impunity.  And given the highly centralized and controlled “management” of the news and thus of public debate, it should not be surprising that opinion surveys show that a majority of Russians are supportive of Putin’s aggression in Ukraine.

                   But it is the toxic ideology and worldview prevalent among Putin and his former KGB officers that when added to the above set of factors evokes even greater concern.  Putin has famously stated that the collapse of the Soviet Union was the greatest geo-political catastrophe of the 20th century.   Given that the Soviet Union had the blood of many millions on its hands and also caused the enslavement in the Gulag of still other millions, Putin’s opinion about the Soviet Union constitutes a pathological view of history (imagine if, for example, a post-war German chancellor had stated that the defeat of the Third Reich was the greatest geo-political disaster of the 20th century).  But it is the popularity of the so-called Eurasian project that is outright alarming.

                   Alexandr Dugin is reported to be the chief ideologist of Eurasianism, an ideology that, according to most accounts, is supported by Putin.  Dugan has explained that the Eurasian movement seeks to restore Russian power and prestige, and he has written that the new Eurasian empire will be constructed on the basic principle of opposition to the common enemy, namely, Atlanticism and the American New World Order.   After Russia invaded Crimea, Dugan wrote an article in his blog in which he predicted cataclysmic events in Ukraine, which he elsewhere describes as not being a real nation, and the establishment of a new “Continental Association” (another name for the Eurasian union) led by Russia that will stretch from Lisbon to Vladivostok.

                   This all sounds a bit nutty, except we need to remind ourselves that similar things may have been thought about the musings of an itinerant painter from Austria when he wrote his Mein Kampf.   Since the Eurasian project sounds nutty, the natural reaction is to laugh it off as about as likely of success as transforming the moon into green cheese.  But the issue is not likelihood of success, but the likelihood of attempts at actualization.  The idea of a thousand year Reich was preposterous too, but it was the attempt to actualize that fantasy that caused more than a little mischief. 

    UABA member Bohdan Vitvitsky, J.D., Ph.D., authored this analytical statement.

  • 16 Mar 2014 3:18 PM | Myroslaw Smorodsky (Administrator)

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    Crimean Referendum to Join Russia Violates Ukraines Constitution, Domestic Laws, and General Principles of International Law

    The Crimean referendum to join Russia on March 16 is illegal and threatens Ukrainian sovereignty, territorial integrity, national and world peace, and international order and security. It is against the Constitution of Ukraine, its laws, generally accepted norms and principles of international law, and every conceivable principle of democracy. Countless international organizations and most countries around the world have already stated that under no circumstances is the Crimean Referendum legitimate; therefore, its results will not be accepted and recognized by the international community.

     

     

    First, it is plainly obvious that a Crimean-only referendum regarding its status is in direct violation of the Constitution of Ukraine. Article 2 of the Constitution (both 1996 and 2004 versions) clearly states that Ukraine is a unitary state and that its territory within its present borders shall be indivisible and inviolable. Ukraine is comprised of 25 administrative regions (including the Autonomous Republic of Crimea), plus the capital of Kyiv and the city of Sevastopol. Crimea is an integral constituent part of Ukraine (Article 134). The territorial structure of Ukraine is based on the principles of unity and integrity of the State territory (Article 134). The Constitution of Ukraine cannot be amended if the amendment is aimed at the liquidation of the independence or violation of the territorial integrity of Ukraine (Article 157). Article 73 of the Constitution clearly prescribes that any alterations to the territory of Ukraine shall be approved exclusively by an all-Ukrainian referendum. Article 72 provides an imperative procedure for the all-Ukrainian referendum that must be strictly observed.

     

     

    The Crimean referendum also contradicts the Constitution of the Autonomous Republic of Crimea. Paragraph 2 of part 2 of its Article 7 unequivocally states that any referendum to change the territorial boundaries of Crimea must be conducted in accordance with the Constitution of Ukraine. Further, the opening paragraph of the Crimean Constitution makes a general declaration that the Autonomous Republic of Crimea is an integral part of Ukraine and shall govern itself within the boundaries set by the Ukrainian Constitution. Drawing on this principle, paragraph 2 of Article 2 of the Crimean Constitution states that the Constitution of Ukraine preempts any conflicting law passed by the Autonomous Republic of Crimea.

     

     

    According to paragraphs 13 and 20 of Article 92 of the Constitution of Ukraine, the questions of territorial integrity and the conduct of referenda are to be regulated exclusively by the laws of Ukraine adopted by the Verkhovna Rada (Ukrainian parliament). There is presently no law in Ukraine that regulates regional (local) referenda. Thus, the mere fact the Crimean parliament decided to hold a local referendum without an existing procedure defined by the law is, on its face, unlawful and violates human and citizen rights. Article 57 of the Constitution of Ukraine states that everyone has the right to know his or her rights and duties. Furthermore, laws and other regulatory legal acts defining the rights and duties of citizens are invalid, unless the population has been notified in compliance with the procedure established by law. Because the law on local referendum does not exist, the rights and duties of citizens are not defined and, evidently, no one knows the extent of such rights and duties.

     

     

    Even from a practical point of view, the referendum cannot pass the test of legitimacy. The referendum was organized in 10 days by a self-appointed Crimean leader who represents the Russian Unity Party, which received less than 4% of support in last election. There is no expert analysis of the wording of the questions included on the referendum ballot, the procedure for running the vote is more than questionable, and the international experts and observers have not been allowed into the region. Moreover, the “voting” will be held in an environment where armed soldiers, with no insignia but widely considered to be Russian, are overseeing the event. It is hard to imagine that the free expression of the voters will, required by part 2 of Article 71 of the Constitution of Ukraine, can be guaranteed under these circumstances. The voters, if they do vote, will be doing so under duress.

     

     

    Various ethnic and religious minority groups in Ukraine, including the Crimean Tatars and the Jews, as well as Ukraines civic sector have all expressed their desire to preserve status quo and stay with Ukraine and not to be forced to flee their homes and leave their lives behind. Notably, the Majlis of the Crimean Tatar People has asked the Crimean residents to boycott the sham referendum. Crimeas indigenous population of about 300,000 Crimean Tatars, who suffered persecution and killings under the Soviet regime and Stalin, spent decades to return to their homeland, yet are facing grave danger again. It needs to be noted that the wording of the referendum ballot does not event allow for preservation of the status quo. This clearly violates citizens rights and restricts basic freedoms, in contradiction of the Constitution of Ukraine.

     

     

    The referendum in Crimea has also been universally condemned as unconstitutional and illegal by the Ukrainian government institutions, as well as by representatives of Ukraines ethnic and religious minorities and the civic sector. On March 7, the interim President of Ukraine Oleksandr Turchynov suspended the Crimean parliaments resolution authorizing the March 16 referendum. On March 11, the Verkhovna Rada issued a statement demanding the Crimean parliament to immediately revise its decision in compliance with the Constitution and the laws of Ukraine. Ukraines Minister of Justice Pavlo Petrenko, Ombudsman Valeriya Lutkovska, and Chair of the Council of Judges Vasyl Onopenko have come out with similar statements. On March 14, the Constitutional Court of Ukraine ruled that the Crimean referendum is unconstitutional and ordered the peninsulas authorities to immediately cease any preparatory actions in this regard. Furthermore, on March 15, the Council of Europe’s Venice Commission for Democracy through Law issued an opinion holding the referendum illegitimate, as the possibility of such a vote is not provided for by either the Ukrainian or the Crimean Constitution and the procedure and circumstances under which it is being conducted are contrary to all democratic principles.

     

     

    The legality of the referendum in Crimea similarly does not pass muster under the general principles of international law. On one hand, both the Charter of the United Nations (UN Charter) and the International Covenant on Civil and Political Rights (ICCPR) recognize that “[a]ll peoples have the right to self-determination.” On the other hand, under Article 2(4) of the UN Charter and the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations (1970), “Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…” The Helsinki Final Act of the Conference on Security and Cooperation in Europe (1975) reiterates this principle and continues, in its Chapter 1, that, while the national borders can be changed, this must occur “in accordance with international law, by peaceful means and by agreement.” Most recently, on September 19, 2012, world leaders and civil society representatives adopted the Declaration on the Rule of Law at the National and International Levels, reaffirming their commitment to upholding the sovereign equality of all States, respecting their territorial integrity and political independence, refraining from the threat or use of force in a manner inconsistent with the UN Charter, and upholding the peaceful resolution of disputes in conformity with the principles of justice and international law.

     

     

    The international legal framework recognizes the need to carefully balance two competing principles – the right to self-determination and the territorial integrity of the state. In this context, the accepted position under international law and established practice gives clear preference for maintaining the status quo with respect to recognized territorial borders of the states. The 1993 Vienna Declaration of the UN World Conference on Human Rights states that the right to self-determination “shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States…” In other words, in the event of a conflict between the peoples right to self-determination and the principle of territorial integrity of the state, the latter usually prevails.

     

     

    International law does not recognize the right to secession as a preferred manifestation of the right to self-determination. In fact, it has been said that such a narrow interpretation of the right to self-determination threatens territorial integrity and can only lead to greater problems than solutions. Instead, the right to self-determination should be interpreted broadly, including through such forms as right to cultural independence, religious freedom, use of own language, and enhanced autonomy, all exercised within the confines of existing national borders and falling short of secession. Every effort should be made to preserve territorial integrity and political unity of the states.

     

     

    This preference for territorial integrity over separatism does not mean that the international legal framework does not recognize the right to secession in certain, limited conditions. However, this right to remedial secession may only be triggered under the most extreme circumstances, typically involving situations of widespread, continuous pattern of gross human rights violations (such as crimes against humanity or genocide) against a vulnerable group. The exercise of the right to self-determination through secession is viewed as a last resort, through the prism of the duty of international community to protect against gross abuses of human rights. Moreover, even in such instances, the international practice does not recognize the right of a people to unilateral secession from a recognized state. Instead, any settlement of domestic conflict that deviates from the territorial status quo must necessarily rely on an internationally sanctioned negotiation process among all interested parties and, to the extent possible, the consent of disputing parties.

     

     

    It appears that no one but Russia believes that the situation in Crimea presents any of the extreme circumstances that could justify the argument for the exercise of the right self-determination by means of remedial secession. In fact, it should be stressed that no evidence exists whatsoever that Ukraine’s interim government threatens the population of Crimea in any way. Specifically, the Russian population in Crimea has not been subject to violations of their human rights or oppression in the exercise of their cultural, religious, or linguistic rights, and so cannot be seen as a vulnerable group in this context. Moreover, the new Ukrainian authorities have signaled their willingness to negotiate the granting of expanded autonomy to the Crimean citizens, most recently during the speech by Prime Minister Arseniy Yatsenyuk before the UN Security Council on March 13. Additionally, the Crimean Tatars, which represent the indigenous population of Crimea, have consistently expressed their support for preservation of territorial integrity and sovereignty of the independent Ukraine. Russian and other ethnic populations present in Crimea are fully able to exercise their rights within the established territorial boundaries of Ukraine, and therefore are not entitled to separate from Ukraine in a unilateral manner. It is for this very reason that the referendum in Crimea does not enjoy the support of international community, having been condemned by the UN Security Council, Council of Europe, OSCE, EU, NATO, the United States, and most other countries around the world. The Crimean referendum is seen as disruptive of the established international order, the preservation of which is one of the key objectives of international security systems.

     

     

    Russia and separatist groups in Crimea have recently invoked Kosovo in support of their position for the right to self-determination through secession. It must be noted, however, there are fundamental differences between the situation of ethnic Albanians in Kosovo under the former Yugoslavian rule and that of ethnic Russians in Crimea under the Ukrainian government. Kosovos remedial secession was a result of a clear and documented pattern of mass atrocities perpetrated against its predominantly ethnic Albanian population. The referendum concerning Kosovos political status was explicitly required by the 1999 UN Security Council Resolution 1244, and as such was an internationally sanctioned and accepted process. Between 1999 and Kosovos referendum in 2008, the territory was administered as a UN protectorate, which allowed to engage in extensive international negotiations and a mediation process overseen by an international Contact Group.

     

     

    Russia has explicitly rejected such an approach with respect to settlement of the status of Crimea. It refused to participate in a proposed Contact Group, and continues to rely on its surrogates in Crimea to physically intimidate and prevent access to the peninsula by the UN and the OSCE monitors. The hypocrisy of Russias reference to Kosovo is even more astonishing, given the fact that Russia has not recognized Kosovos independence. In fact, in its written statement to the International Court of Justice submitted as part of a proceeding to issue an advisory opinion on the status of Kosovo, Russia argued that unilateral secession as a manifestation of the right to self-determination should apply “only in extreme circumstances, when the people concerned is continuously subjected to most severe forms of oppression that endangers [their] very existence…” and that “the situation [in Kosovo] does not even begin to come close to the ‘extreme circumstances under which the right to secession may be invoked.”

     

     

    In light of the above analysis, any referendum in Crimea would have no legal effect under either Ukrainian or international law. Given the lack of adequate preparation and the intimidating presence of Russian troops, it would also be a deeply flawed process, which would have no moral effect. The annexation of Crimea could have grave implications for the international legal order that protects the unity and sovereignty of all states. The referendum outcome, despite being illegal and illegitimate under both national and international rules and principles in the first place, is almost certain to push Crimea into the unresolved status. For all of the reasons stated above, Ukraine and all civilized nationswill definitely not recognize the referendum. Russia, however, will keep referring to its fraudulent results. For years to come, Russia can use this uncertainty around the peninsula as a certain degree of leverage in the game which the people of Ukraine have never intended to be a part of. Everything they wanted was to eliminate the vestiges of their totalitarian Soviet past and the corrupt and bloody dictatorship of Yanukovych, in order to build a strong and democraticEuropean state. Given the strong commitment to advancing the rule of law both at the national and international levels, it is critical on this truly historic occasion for all political forces in Ukraine to respect national laws, and for all members of the international community to respect international law and justice. Most notably, it bears reminding that, under the 1994 Budapest Memorandum on Security Assurances, the United States, Great Britain, and Russia have all undertaken a commitment to provide guarantees against threats or use of force against the territorial integrity or political independence of Ukraine, in exchange for Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons and giving up the world’s third largest nuclear arsenal. Ukraine has complied with its end of this agreement, and the time has now come for its other signatories to adhere to their obligations.

     

     

    March 16, 2014

     

     

    Statement prepared by the Constitutional Law Committee

    Judge Bohdan A. Futey, Chairman

     

     

    Unfortunately, full text of the Opinion will not be published until March 21-22.

    In this regard, a 1998 advisory opinion of the Supreme Court of Canada, Reference re Secession of Quebec, offers instrumental guidance with respect to the present situation in Crimea. In it, the Court held that Quebecs proposed referendum on separation from Canada was unconstitutional under Canadas Constitution. Instead, any proposed secession would require a nationwide referendum and, if approved by such referendum, be followed by intensive negotiations to define the terms under which Quebec would gain independence from Canada. The Court also reaffirmed the fact that international law does not entitle constituent parts of a sovereign state to secede unilaterally from the parent state, as long as the people are able to meaningfully exercise their right to self-determination within an existing nation state.

    On March 15, the UN Security Council would have issued a formal resolution strongly condemning the Crimean referendum as illegal, but for Russia’s veto over the proposed document. The other 13 members of the Council voted in favor of the resolution, with China abstaining.

  • 11 Mar 2014 9:21 AM | Myroslaw Smorodsky (Administrator)

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    Washington, D.C., 07 March, 2014 
     
    Dear Members of U.S. Congress:


    I would like to begin by thanking the United States of America, and specifically the U.S. Congress, for the unwavering support of Ukraine at these challenging times.
    For the past couple of months Ukraine has been in the world’s headlines.
    The whole world saw the determination of hundreds of thousands of Ukrainians who took to the streets to stand for a better life, for freedom, democracy and end of blatant corruption that stifled our country for far too long.
    Yet the Yanukovych regime tried to silence the protesters with guns. Peaceful and unarmed demonstrators were met by special forces with snipers, who shot dead almost a hundred people and wounded hundreds more.
    In an attempt to prevent further bloodshed and resolve the crisis, on February 21, 2014 leaders of the opposition Vitalii Klychko, Oleh Tyahnybok and Arsenii Yatsenyuk on one side and Viktor Yanukovych on the other signed an Agreement that had been negotiated with the help of foreign ministers of Poland, Germany and France.
    Russia’s special envoy, Vladimir Lukin, was present but refused to sign it (therefore, the suggestion by the Russian side that the opposition failed to implement the Agreement is groundless).
    The Agreement called for an end of violence, restoration of the Ukrainian Constitution of 2004 and early presidential elections.
    However, on February 22, 2014 Viktor Yanukovych fled the capital and de facto removed himself from his constitutional authority.
    Therefore, on February 22, 2014 the Verkhovna Rada of Ukraine, which was the only legitimate authority in Ukraine at the time, given the resignation of the Government and the President’s self-removal from exercising his functions, and restored the 2004 Constitution (approved by 386 votes out of 450), recognized that Viktor Yanukovych removed himself from his constitutional duties through unconstitutional means by 386 votes, including 140 votes from the pro-Yanukovych Party of Regions and set the early elections of the President of Ukraine on May 25, 2014 (328 votes).
    According to Article 112 of the Constitution of Ukraine of 2004 in case of early termination of powers of the President of Ukraine the functions of the President of Ukraine shall be carried out by the Speaker of the Parliament until a new President is elected and inaugurated, the only legitimate supreme authority in Ukraine is the Verkhovna Rada of Ukraine.
    The Rada elected new Speaker, Mr. Oleksandr Turchynov (by 288 votes), who acts as the President of Ukraine until the elections, and appointed Mr. Yatseniuk as the Prime Minister (by 371 votes). These actions were made in full compliance with Ukrainian laws.
    However, Russia did not recognize these changes and considers Viktor Yanukovych a legitimate President.
    Producing a piece of paper purporting to be Mr. Yanukovych’s letter asking Mr. Putin to send Russian troops to Ukraine, the Federation Council of Russia, upon Mr. Putin’s request, approved such decision.
    Mr. Yanukovych is no longer the President of Ukraine, particularly after his escape from Kyiv on February 22, 2014. Therefore, none of his statements have any significance under either Ukrainian or international law.
    But in any way, even if the legitimate President of Ukraine called upon a foreign country to intervene with its armed forces in Ukraine, such a statement would also be worth nothing, because under the Constitution of Ukraine (Art. 85) only the Verhovna Rada of Ukraine can approve decisions on admitting units of armed forces of other states to the territory of Ukraine. The Rada clearly stated that it had not made any such decisions.
    Seeing that Ukraine is determined to pursue its European course, Russia, under the completely trumped up pretext invaded Crimea with its armed forces.
    The Russian forces are seeking to establish complete control over Ukraine’s military facilities in Crimea, trying to block and disarm Ukrainian military garrisons and border guard bases, blocking airports and ships. The Russian troops and armored vehicles are moving uncontrollably around Crimea, numerous Russian military planes and helicopters violated Ukrainian airspace.
    By countless provocation's, Russian military is seeking to instigate an armed conflict and replicate in Ukraine the Abkhazia and South Ossetia scenario. However, Ukrainian servicemen act with utmost restraint and don’t react to such provocation's, but there’s a threat that Russia may engineer provocation's against its own troops, and blame them on Ukraine.
    There is also an ongoing accumulation of military equipment on the Russian territory in close proximity to the border of Ukraine in the Kharkiv, Luhansk, Donetsk and Chernihiv oblasts. These actions may indicate preparations of the Russian side for possible intervention into the Ukrainian territory across the land border.
    The military intervention is accompanied by a huge outburst of fabrications. I can assure you that Russian-speaking citizens of Ukraine enjoy the same rights and freedoms as other citizens of my country. Nobody has ever forbidden, forbids or will forbid the use of the Russian language, as the Russian propaganda tries to demonstrate.
    As of today there is no proof of any violations of Russian minority rights in Ukraine; there were no appeals to the relevant Ukrainian authorities neither from those allegedly affected nor from Russia’s officials. In accordance with the Memorandum of Understanding between the Parliamentary Commissioner on Human Rights of Ukraine and the Ombudsman of the Russian Federation in case of such appeals to the Russian side they are transferred to the Ukrainian Ombudsman.
    The actions by the Russian Federation constitute an act of aggression against the state of Ukraine. Russian Federation brutally violated the basic principles of Charter of the United Nations obliging all member states to refrain from the threat or use of force against the territorial integrity or political independence of any state.
    Ukraine in the strongest possible terms protested such actions, but Russia officially rejected Ukrainian proposal to hold immediate bilateral consultations (under Article 7 of the Treaty on Friendship, Cooperation and Partnership between Ukraine and the Russian Federation of 1997).
    Russia’s actions pose a serious threat not only to the sovereignty and territorial integrity of Ukraine, but also to peace and stability in the whole region. Moreover, Russia’s actions provoke a disbalance in the international security system and can lead to violations of the regime of international nuclear non-proliferation on a global scale.
    When in 1994, Ukraine became a party to Non-Proliferation Treaty and voluntarily surrendered the third largest nuclear arsenal in the world it did so exclusively under certain conditions. These conditions envisaged granting security assurances to Ukraine by the 5 nuclear states.
    On December 5, 1994, the United States, the Russian Federation and the United Kingdom signed the Budapest Memorandum on Security Assurances to Ukraine. The French Republic and the People’s Republic of China supported the Memorandum by signing separate declarations.
    Ukraine has thoroughly implemented its commitments under the Non-Proliferation Treaty, and has taken and fulfilled additional obligations by getting rid of all its stockpiles of highly enriched uranium.
    Today we witness the situation when the Russian Federation attempts to undermine the NPT regime not only by violating the Budapest Memorandum, but also by violating the Non-Proliferation Treaty, which clearly states in its Preamble that “States must refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner”.
    Non-adherence by one Guarantor State – the Russian Federation – to its commitments under the Budapest Memorandum by the military invasion in Ukraine creates a situation when the threshold states may consider international legal instruments insufficient to ensure security, territorial integrity and inviolability of their borders.
    We rely on the commitments contained in the Budapest Memorandum of 1994 and the Charter on a Distinctive Partnership between NATO in Ukraine, as well as the U.S.-Ukraine Charter on Strategic Partnership and other bilateral documents.
    We need help from the guarantor states, the UN, NATO, the OSCE, the European Union, all civilized nations to protect our sovereignty and territorial integrity by all available means and to prevent a war which would shatter peace in Europe and will have grave and irrevocable consequences for peace and security on a global scale.
    The aggression must be stopped, and we rely on the strong and unified position of the global community.
    Military units deployed from Russia must leave the territory of Ukraine immediately, and those belonging to the Russian Black Sea Fleet must return to their barracks. Armed gangs that came from Russia must also immediately leave Ukraine.
    Crimea is an inalienable part of Ukraine, with citizens of all ethnic backgrounds.
    All issues should be resolved through negotiations. There is no alternative to a peaceful and diplomatic solution of the crisis. We hope that wisdom will prevail.
    We need America’s help, and we count on it.
    Sincerely yours,
    Olexandr Motsyk
    Ambassador of Ukraine to the United States, Washington, D.C.

  • 04 Mar 2014 4:28 PM | Myroslaw Smorodsky (Administrator)

    PRESS RELEASE March 4, 2014

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    RUSSIA'S DISINFORMATION CAMPAIGN REGARDING UKRAINIAN LANGUAGE POLICY

    The Russian government is deceitfully attempting to justify its invasion of Ukraine under a pretext that ethnic Russians who reside in Ukraine are discriminated against because of their use of the Russian language and their ethnic background. The Kremlin disingenuously claims that the new Ukrainian government recently passed legislation "banning" the Russian language. The Kremlin's disinformation campaign is clearly intended to foment ethnic tensions and destabilize Ukraine. Regrettably, Western media has been blindly reciting this disinformation as if it were fact without doing any due diligence whatsoever as to its accuracy.

    The "Ukrainian Law on Language Policy" was unconstitutionally adopted in July of 2012 and signed by then Pres. Yanukovych.  The Hon. Knut Vollebaek, High Commissioner on National Minorities with the Organization for Security and Cooperation in Europe (OSCE), told the Ukrainian Parliament that the 2012 legislation did not meet European standards since its "approach to language policy is deeply divisive and is likely to lead to future polarization of society. Indeed, the disproportionate favoring of the Russian language, while also removing most incentives for learning or using Ukrainian in large parts of the country, could potentially undermined Ukraine's very cohesion".  Hon. Knut Vollebaek, also expressed his concern that the 2012 legislation was not properly adopted in accordance with existing Ukrainian constitutional and procedural law.  Prior to its alleged passage, the 2012 "Ukrainian Law on Language Policy" law was severely criticized by leading Ukrainian legal scholars, the National Academy of Sciences of Ukraine and other institutes of higher learning, and numerous ministries within the Yanukovych government itself, as divisive and failing to protect the rights of all Ukrainians irrespective of their ethnic background. The Venice Commission of the Council of Europe, in reviewing the 2012 "Ukrainian Law on Language Policy" legislation in comparison to European standards, stated that it failed to provide a proper balance between the development and use of a state language as a unifying factor in society and the development and protection of minority languages in accordance with European standards. 

    On February 23rd 2014, the Ukrainian Parliament repealed - in one sentence - the 2012 "Ukrainian Law on Language Policy".  There is absolutely no mention in this legislation of banning anything.

    In an effort to deescalate the ethnic tensions resulting from the Kremlin's disinformation campaign, [which has been fueled by erroneous Western media reporting], the Ukrainian Interim President Oleksandr Turchynov vetoed the February 23, 2014 repeal legislation and the Ukrainian Parliament will be drafting new legislation to comport with European standards so as to properly safeguard the rights of all minorities and all citizens of Ukraine. 

    Western media – especially those with international reach – must fulfill their journalistic obligations and stop being unwitting enablers of disinformation talking points emanating from the Kremlin and its public relations firms in the West, and must do independent due diligence as to the accuracy of their reporting. Failure to do so will only artificially create ethnic tensions in Ukraine thus fulfilling the goal of the Russian government to destabilize Ukraine so as to camouflage its invasion of Ukraine in full violation of all international standards and law.

    Internet links to sources for the above referenced documents are in the Appendix below;  

    For further information, please contact

    Myroslaw Smorodsky, Esq.

    Counsellor at Law

    730 West Saddle River Rd., Ho-Ho-Kus, NJ 07423

    Tel: 201-507-4500; Direct dial; 201-857-2714; Fax; 201-882-2498; Email; myroslaw@smorodsky.com; Website; www.smorodsky.com

    Communications Director of the Ukrainian American Bar Association (UABA)

    Immediate Past Chairman of the Board of Governors of the UABA,

    Former Public Member of the United States Delegation to the Conference on Security and Cooperation  in Europe (CSCE) Madrid, 1980

    Appendix

    http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=45291

    http://uaba.org/resources/Documents/Blog%20Docs/12-07-18%20Open%20Letter%20to%20President%20of%20Ukraine%20Viktor%20Yanukovich.pdf

    http://www.venice.coe.int/webforms/documents/?pdf=CDL-REF(2011)001-e

    http://www.venice.coe.int/webforms/documents/?pdf=CDL(2011)101-e

    http://uaba.org/resources/Documents/Blog%20Docs/12-08-23%20Amb%20Vollebaek%20Letter%20to%20Ukrainian-Am%20%20Bar%20Assoc_16%20Aug.pdf

  • 01 Mar 2014 10:06 PM | Myroslaw Smorodsky (Administrator)

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    By Victor Rud

    Which of the following are statements by Vladimir Putin, his Foreign Minister
    Sergei Lavrov or other Kremlin spokesmen, and which are by Western media,
    academics, politicians and commentators: "Ukraine and Russia share deep
    historical and cultural roots," "Russia traces its 1000 year history to its
    beginnings in Kiev", Ukraine is really "Little Russia," "the Russian Orthodox
    Church originated in Kiev", "thousand years of Russian Christianity", "lJkraine
    is a part of Russia", Russia and Ukraine are not separate countries," "Russia
    is a thousand year old state," "Kievan Russia was the beginning of the modern
    Russia," "Ukrainians and Russians are brotherly nations"?

    There is no distinction between who said any of the above. Each statement has
    been repeated, for a century in the United States and longer by the Kremlin.
    Such remarkable unanimity reflects either recognition of the same historical
    record, or the recognition of the same historical mythology. If the latter, how
    and why in American academe and politics is that mythology declared with
    such certitude by those who should know better, thereby facilitating a
    historical hologram?

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  • 25 Feb 2014 9:28 PM | Myroslaw Smorodsky (Administrator)

    ACTIONS TO BE TAKEN VIS-À-VIS RUSSIA IN THE EVENT OF FURTHER RUSSIAN AGGRESSION
    - ECONOMIC OR OTHERWISE - AGAINST UKRAINE

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  • 24 Feb 2014 9:36 PM | Myroslaw Smorodsky (Administrator)

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    February 6, 2014
    By: Myroslaw Smorodsky

    On February 6, 2014, Reuters reported that a senior Kremlin aide has accused the United States of interference in Ukrainian affairs which "breached the 1994 treaty under which Washington and Moscow jointly guaranteed Ukraine's security and sovereignty after Kiev gave up its Soviet-era nuclear arsenal."  The Kremlin's accusations are the height of unabashed hypocrisy and chutzpah. By going on the offensive, Russia is attempting to camouflage its own flagrant transgressions of the security assurances it gave to Ukraine in 1994.

    After the fall of the Soviet Union and its declaration of independence on August 24, 1991, Ukraine became the third largest nuclear power in the world having more nuclear warheads than France and Great Britain combined!  Twenty years ago, at the behest of the United States and Russia, Ukraine agreed to remove and to have destroyed all nuclear weapons on its territory.  All that Ukraine asked in return was to be given security assurances by the United States, Russia and the United Kingdom upon its accession to the Non-Proliferation Treaty as a non-nuclear weapon state.  These security assurances were given on December 5, 1994 and are commonly known as the Budapest Memorandum.  On the basis of these assurances, Ukraine surrendered approximately 1900 nuclear warheads.

    The Budapest Memorandum states in part:

    The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland, reaffirm their commitment to Ukraine, in accordance with the principles of the CSCE Final Act, to refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty and thus to secure advantages of any kind.

    On December 19, 2008, in a joint statement by US President George W. Bush and Ukrainian President Viktor Yushchenko, the importance of these security assurances was reaffirmed upon the signing of the United States – Ukraine Charter On Strategic Partnership.  One year later, on December 4, 2009, the security assurances, [given to Ukraine in return for its surrender of its nuclear armaments], were reconfirmed by President Barack Obama and Russian President Dimitry Medvedev.

    Sadly, the security assurances of the Budapest Memorandum that were so loudly touted by the United States as a model for nuclear disarmament were recently blatantly violated by Russia when it exerted its economic power to blackmail and coerce Ukraine to digress from its freely chosen path of economic integration with the European Union.  Even the president of Ukraine, Viktor Yanukovych, admitted this was the motivating factor in his last minute refusal to go forward with the negotiated EU Association Agreement.  Nor is there any reasonable quarrel that Russia's egregiously coercive actions towards Ukraine were in direct contravention of the 1994 Trilateral Agreement and the Budapest Memorandum. 

    One would have expected the United States, as party to the Budapest Memorandum, to vociferously react - at the highest political level - to Russia's breach of the security assurances it gave to Ukraine. After all, this was the quid pro quo for Ukraine surrendering its nuclear weapons of mass destruction - defensive as well as offensive.  These security promises were reaffirmed by the presidents of the signatory countries.  The Budapest Memorandum itself provides that the signatories "...will consult in the event a situation arises which raises a question concerning these commitments".  Moreover, it is the United States' long term strategic goal to limit the proliferation of nuclear weapons to other countries - such as Iran - and to reduce the existing nuclear arsenals around the world.  Regrettably, in face of the obvious breach of the security assurances promised by Russia in the Budapest Memorandum, all that has been heard from the United States on the subject is deafening silence.

    There is an old adage - "a man is only as good as his word".  This proverb applies equally to countries and the manner in which they comply with international agreements - most importantly, when it comes to nuclear disarmament and related security promises.  It is self evident that Russia's blatantly coercive behavior towards Ukraine evidences that the Kremlin has absolutely no regard or respect for any international agreement to which it is a signatory and believes that it is entitled to arrogantly ignore such accords at will and with impunity.  The Kremlin has now put the world on notice that any international promise that Russia makes - especially in nuclear nonproliferation and security assurance agreements - is subject to caveat emptor -- buyer beware!

    However, the deafening silence from the United States also has had direct and significantly detrimental consequences.  Realizing that its crass and brazen coercion of Ukraine resulted in no penalty [or even muted criticism of this overt transgression of the Budapest Memorandum], the defaulting party - Russia - is emboldened to potentially violate other international agreements to which it is now a signatory or will be in the future.  Moreover, the Kremlin has now taken advantage of the United States' silence and has gone on the offensive and is making blatantly absurd accusations that the United States is violating the Budapest Memorandum.  Russia is attempting to have America explain itself rather than vice versa.  The Putin administration has clearly learned the old football strategy  "the best defense is a good offense".

    America's failure to take any responsive action also corrodes and undermines its credibility in the international arena.  The United States has always prided itself on its veracity and credibility proclaiming that Americans always "stand by their word".  In light of America's inaction vis-à-vis Russia's breach of the security assurances given to Ukraine, why should Iran, or the warring parties in Syria, or even Israel, have any faith in the security assurances that were or will be given in any disarmament negotiations or peace talks?  If Russia is a party to such future agreements, why should any participant expect the United States to stand up to the Kremlin if Russia were to again breach its future security commitments as it did with Ukraine? 

    The United States needs to take a long, hard look and reevaluate its foreign-policy strategy towards Russia. If Russia is to be a necessary co-participant in international negotiations, then the United States government should nevertheless have the political and moral courage - at the highest political level - to criticize and take positive and definitive steps to thwart such behavior when the Kremlin audaciously transgresses its security commitments.  If America continues to remain conspicuously silent in response to the Kremlin's trampling of its security assurances given to Ukraine in the Budapest Memorandum, then the United States role as a world leader will be greatly diminished and the future security of America will be threatened.  Promises should not be made only to be broken without consequence - especially when the promises involve weapons of mass destruction.

    Myroslaw Smorodsky, Esq.
    Attorney, New Jersey Bar
    Communications Director of the Ukrainian American Bar Association (UABA)Immediate Past Chairman of the Board of Governors of the UABA,
    Former Public Member of the United States Delegation to the Conference on Security and Cooperation  in Europe (CSCE) Madrid, 1980

    ED NOTE: an earlier Ukrainian language version of this Article was published on February 6, 2014 in the Ukrainian Law Journal, [Юридичний Вісник України]  Kyiv, Ukraine.

  • 24 Feb 2014 8:56 PM | Myroslaw Smorodsky (Administrator)

    ЗАЯВА АСОЦІАЦІЇ УКРАЇНСЬКИХ ПРАВНИКІВ АМЕРИКИ
    З ПРИВОДУ РІШЕНЬ УКРАЇНСЬКОГО ПАРЛАМЕНТУ ВІД 22 ЛЮТОГО 2014 РОКУ

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    форматі PDF

     

  • 22 Feb 2014 2:51 AM | Myroslaw Smorodsky (Administrator)

    PRESS RELEASE  February 22, 2014  2:35 PM New York Time

    UABA STATEMENT

    ON THE PARLIAMENTARY EVENTS IN UKRAINE
    OF FEBRUARY 22, 2014
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  • 05 Feb 2014 12:10 PM | Myroslaw Smorodsky (Administrator)

    Заява

     Громадської Комісії з розслідування та

    попередження порушень прав людини в Україні

     

    Statement of the Public Commission to Investigate Human Rights Violations in Ukraine

     

    Click here to view in PDF format  --- Натисніть тут для перегляду  у форматі PDF

     

     

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