Illegal in the Kremlin: The West still has the tools to recognize Putin as an illegitimate president

RU

Modern international law is different from national legal systems. There is no world government, and no global parliament capable of adopting universal laws. Neither the UN General Assembly nor any other supranational body of the international community has any legislative power. In this sense, international lawmaking is horizontal, not hierarchical, and is based on the recognition of the formal equality of the more than 190 states that now exist on the planet.

The main subjects of international law — states — themselves create the rules of international law, but there are no international law enforcement agencies capable of compelling them to obey the rules they have collectively adopted. The jurisdiction of the International Court of Justice — the main judicial organ of the UN — depends on the consent of the parties to a dispute. If states do not recognize the jurisdiction of the court, then the court is powerless to pass judgements on them.

It is not even clear what constitutes a state. Although there have been attempts to define the concept objectively (for example, in the Montevideo Convention of 1933), in practice, the state is defined through mutual recognition. That is, a state is an entity that is recognized as such by other states. Recognition is achieved through the appropriate diplomatic acts, and the diplomatic service is part of the executive branch of the state.

For example, the recognition of a state is evidenced by acts that have been practiced for centuries, such as sending an ambassador with a credential on behalf of the head of the accrediting state. The accreditation is publicly presented to the head of the host state, and according to diplomatic tradition, a copy of the credential is presented to the foreign minister of the host state. Diplomatic immunity, immunity of the head of state, the head of government, and the foreign minister, along with immunity of the property of a foreign state, follow from the recognition of another state as enjoying equal rights.

According to the classical tradition of international law, a distinction must be made between the recognition of a state and the recognition of a government. On the one hand, when one recognizes a foreign state, one automatically recognizes its government. The formation of that government is not the concern of a foreign state, as it takes place according to internal constitutional rules.

Nevertheless, international law makes tentative attempts to define the criteria that a government ought to meet. For example, Article 21 of the Universal Declaration of Human Rights proclaims that “the will of the people shall be the basis of the authority of government,” and Article 25 of the International Covenant on Civil and Political Rights (to which the Russian Federation is a party and which, according to the generally accepted view, cannot be denounced or withdrawn from) enshrines the right of every citizen “without discrimination [...] to vote and to be elected at genuine periodic elections by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors.”

The question then arises: what about a government that does not meet these criteria and simply seizes power in its own country? Is international law completely indifferent to how the government of a recognized state came to power? No, it is not even if there is frankly little order or certainty in this area.

Often, a government is not recognized if it comes to power by overthrowing the country's legitimate leadership in a coup. The GKChP (“State Committee on the State of Emergency”) coup of August 1991 can be cited as an example from Russia’s own history. The three-day attempt by Communist hardliners at overthrowing Mikhail Gorbachev, rolling back liberalization reforms, and restoring the centralized Soviet state, ultimately failed. It is important to note that during those three days, when it was still unclear whether the GKChP could actually seize power, representatives of foreign embassies in Moscow maintained contacts primarily with the government of Boris Yeltsin, which openly opposed the putsch. It is safe to say that the coup was not internationally recognized. But would this have been the case if the rebels had succeeded in breaking Yeltsin's resistance in Moscow and taking control of the country?

Another example is the Taliban, which seized power in Afghanistan in the summer of 2021 and did not bother to hold elections. On the one hand, the Taliban government can hardly be considered internationally recognized. On the other hand, the foreign embassies that remain in Kabul — including the Russian Embassy — are not too shy about their contacts with the “official” representatives of the Taliban administration.

Military coups are particularly common in African countries. At the level of the African Union, a special international treaty was even adopted — the African Charter on Democracy, Elections and Governance — highlighting the position of African states as to the non-recognition of governments that have come to power in violation of the constitutional order — such as through a military coup. In practice, however, this principle has not been well-respected.

Last year, a military coup changed the government in Niger, and the African Charter did not prevent foreign states from establishing contacts with the new government, which essentially held democratically elected President Mohamed Bazoum hostage. And Niger is by no means the only example.

If we read the aforementioned African Charter, its Article 23 deems the current government in Niger unconstitutional and unrecognizable, given that it has not ceded power to the party or candidate that won free, fair, and regular elections. Interestingly, the article also refuses recognition to regimes that have amended their constitution “in violation of democratic principles of governance” in order to remain in power. This precisely describes Russia’s case, as one needs only to recall the “constitutional amendments” of 2020, which “zeroed out” Vladimir Putin’s presidential terms and cleared the path for him to remain in power for another 12 years.

Belarus is probably the closest and most understandable precedent in relation to Russia. It is clear that, had the Belarusian presidential election of August 2020 been a free, fair, and open process, Svetlana Tsihanouskaya would have become the elected president instead of the usurper incumbent Alexander Lukashenko. Instead, the authorities in Minsk announced clearly falsified results and, within days of the vote, drove Tsihanouskaya out of the country. Her present office in Vilnius has the characteristics of an alternative government of Belarus. Diplomatic representatives of foreign states interact with it, some of them are specially accredited in Vilnius, Tsihanouskaya's office communicates with foreign authorities as the officially recognized representative of Belarus, there is a contact group with the Council of Europe, and so on.

Unlike Belarus, Russia does not have an alternative president to Putin, a fact that makes interaction with the country more complicated. Nevertheless, certain steps aimed at non-recognition of Putin's government have been taken. Few people know that it was not only Ukraine that broke off diplomatic relations with Russia at the start of the full-scale invasion in February 2022 — Micronesia took a similar step.

Some states, without severing relations, closed their embassies in Moscow (such as Iceland) or reduced the status of the heads of diplomatic missions to chargés d'affaires (such as Lithuania). These were symbolic, but quite important, responses to Russia’s aggression against Ukraine: the absence of an ambassador means that there is no need to accept Putin's credentials — or to address him with a letter of credence.

At the same time, since February 2022 some European states have already accepted ambassadors appointed by Putin or sent their ambassadors to Moscow. A photo published by the Russian Embassy of a ceremony held at the Royal Palace in The Hague earlier this year is particularly noteworthy.

The photo shows Russian Ambassador Extraordinary and Plenipotentiary Vladimir Tarabrin presenting King Willem-Alexander of The Netherlands with a letter of credence signed by the man whose arrest warrant was issued by the International Criminal Court (ICC) in The Hague in March 2023. The photo shoot captured not only the formal procedure and the handshake between the ambassador and the king, but also their relaxed conversation, during which His Majesty smiled broadly at Putin's uniformed envoy.

It should be understood that neither the European Parliament nor PACE determine the foreign policy of European states. They have only called upon the governments of the states to draw the appropriate conclusions from the events of March 2024, and it remains to be seen if these appeals will be heard. Interestingly, in the same resolution, the EP called on the “Russian authorities” to provide consular access to those political prisoners who hold dual citizenship (for example, Vladimir Kara-Murza, who is known to be a British subject). It is unclear which Russian authorities, other than those appointed by Putin, will provide this consular access.

What can European states do? First, symbolic steps are important. For example, contrary to normal diplomatic practice, the German Chancellor and President refused to congratulate Putin on his election victory. Similarly, smiling handshakes and joint photographs can be done away with — small things, but nonetheless significant as far as diplomatic rites are concerned.

Second, and more importantly, European states can stop communicating with the Kremlin on a daily basis in a wide range of areas of interstate cooperation. They can, for example, refuse to provide Moscow with international legal assistance in both criminal and civil cases. To this day, some EU countries continue to extradite Russian citizens to Moscow, as the 1957 European Convention on Extradition continues to apply despite Russia's expulsion from the Council of Europe. The Kremlin has no intention of denouncing the agreement because the powers-that-be in Moscow are interested in ensuring that requests from the Russian Prosecutor General's Office are considered and satisfied by European countries. European countries should not give Putin what he wants in this sphere.

Finally, European countries can downgrade the level of diplomatic relations and close down diplomatic missions in Russia. For example, in Brussels, the Permanent Mission of the Russian Federation to the European Union is open and actively engaged in anti-European propaganda. Why? It is difficult for me to justify the existence of the Russian Permanent Mission in Brussels by anything other than the European bureaucrats' fear that the Kremlin will react to its closure by stopping the European Commission Delegation in Moscow from functioning. But perhaps closing this European representation on Brussels' own initiative would be more in keeping with the spirit of the EP resolution than continuing its work under current conditions?

Most likely, some form of contact between official representatives of the countries of the free world and the Kremlin is still inevitable — and this will mean recognizing Putin. On the other hand, these contacts could be carried out using the Afghan format: de facto recognition of the reality that a group of terrorists holds power in the country, and constant reminders that their power is not based on free elections reflecting the will of society.

Under the circumstances, is it really necessary to invite representatives of such authorities to royal palaces and take joint photos with them as a souvenir? Diplomacy, like international law, is first of all practice. The practice in relations between foreign states and the Kremlin will become clear very soon. As a possible hint of what’s to come, it will be interesting to see whose ambassadors show up for Putin's inauguration.

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This op-ed was published in Russian prior to Putin’s “inauguration” ceremony on May 7, 2024. While most European countries chose not to attend the ceremony, the inauguration was nonetheless attended by six EU member states’ ambassadors: those of France, Hungary, Slovakia, Greece, Malta, and Cyprus. Speaking alongside Xi Jinping on May 6, French President Emmanuel Macron said: “We are not at war with Russia or the Russian people, and we have no desire for regime change in Moscow.”

The United States did not send a representative to the ceremony, but stopped short of calling its decision a boycott. Matthew Miller, a spokesman for the U.S. State Department, said: “No, we will not have a representative at his inauguration. We certainly did not consider that election free and fair but he is the president of Russia and he is going to continue in that capacity.”

The Ukrainian Foreign Ministry said in a statement, “Ukraine sees no legal grounds for recognising [Putin] as the democratically elected and legitimate president of the Russian Federation.”