Tag Archive | "Ukraine"

298 Deaths with a Single Missile

m17

MH17 Route

On July 17, 2014 Malaysia Airlines Flight MH17 was shot out the sky at 33,000 feet above eastern Ukraine killing all 298 people on board. The cause of the 298 deaths can be attributed to the fighting between Ukraine and pro-Russian rebels during the Crimean crisis. However, it has not been confirmed whether the Ukrainian military or the pro-Russian rebels shot the SA-11 missile at the airline and both sides have denied responsibility for the deaths. Although there is evidence pointing to the rebels being the ones to have fired the missile, which may have been provided to the rebels by Russia, the crash site was initially closed off to the international investigators by the rebels. Therefore, there remains speculation and controversy as to what actually happened to flight MH17.

The lack of certainty of who caused this horrific tragedy has led Malaysia and the Netherlands to propose the creation of an international tribunal to investigate and prosecute those suspected of causing the crash. Malaysia and the Netherlands are the primary countries backing the resolution as the airline was Malaysian and the majority of passengers who died were Dutch. The vote to create the tribunal is set to go before the United Nations Security Council on July 29, 2015. While all want answers to what happened to flight MH17, there may be an issue as to whether an international tribunal could ever be created. The issue comes with the veto power that each permanent member of the Security Council has, as the creation of an international tribunal must be decided through the Security Council and not the General Assembly.  The power to create a criminal tribunal, which was exercised with the creation of the Criminal Tribunals of the former Yugoslavia and Rwanda, comes from Chapter VII of the United Nations Charter. Article 39 of Chapter VII gives the Security Council the power to take measures they deem fit to maintain and restore international peace and security. Therefore, in order to have an international tribunal for flight MH17, all five permanent members of the Security Council must vote yes for its creation. The issue is whether Russia will exercise its veto when the resolution comes to the table.

The positives of a creation of an international tribunal for flight MH17 far outweigh the negatives. A major negative is that an international tribunal will take years to investigate and prosecute, as seen with the International Criminal Tribunal for the former Yugoslavia. The real downside to the creation of a tribunal is that it takes away sovereign power from Ukraine to have the case heard nationally. Yet, if Ukraine were to try the case internally, Ukraine would not have power over the pro-Russian rebels as the Crimea is annexed nor would Ukraine have power over Russia if it were found that Russia supplied the weapon that shot down MH17. Therefore, the best option would be an international tribunal.

An international tribunal would be an effective way of revealing what actually happened and what specifically took down the flight. Since there is doubt as to what took place on July 17th, which can be somewhat attributed to the fact the pro-Russian rebels closing off the crash site for a few days after the crash, and denial by all parties involved, a tribunal would allow the international community to have peace of mind in knowing that the truth was out in the open.  The tribunal would also provide closure to the families of the victims because they would finally know all the details, while painful, of how and why they lost their loved ones.

A tribunal would give the families of the victims a chance to be heard. By allowing the families to testify, the case will be humanized. While emotion should not sway a judge in his or her ruling, the humanization would make the deaths no longer just a number but 298 individual people who were wrongly killed. The deaths of each victim should not be forgotten.

A tribunal may also have some deterrent effect and may dissuade others from committing similar acts during times of war and conflict. States need to know that while they are entitled to sovereignty, they must be careful with internal conflicts and the repercussions outside of the state. The tribunal may also have an effect on ensuring that airways are restricted over states that are experiencing internal conflicts. If the airways had been restricted over Ukraine last summer, this tragedy would not have occurred. Now while the restriction of airspace will have economic and travel consequences, which may make many states and international corporations upset, it will save lives.

Whether or not a tribunal is established, the facts surrounding the downing of flight MH17 and the 298 deaths need to be heard. The one missile that took 298 innocent lives needs to be answered for.

Teresa Milligan is a 3L law student at the University of Denver Sturm College of Law and the Editor-in-Chief for the Denver Journal of International Law and Policy.

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Map of Internal Displacement Statistics in Ukraine

Critical Analysis: Responding to the crisis facing internally displaced people in Ukraine

As fighting intensifies and peace talks remain on rocky ground, the humanitarian crisis in Ukraine increases with each day that passes. One aspect of the crisis in Ukraine is the massive surge in numbers of internally displaced people. Reports of nearly 600,000 asylum seekers fleeing Ukraine, do not include the nearly one million internally displaced people still within Ukraine’s borders. Thus far, Ukraine and the international community have struggled to adequately respond to the needs of the hundreds of thousands of internally displaced people (IDPs) forced from their homes during this violent conflict.

UNHCR, UNICEF, and OCHA are just a few of the non-governmental actors attempting to address the humanitarian crisis. According to its latest operational update, UNHCR has focused on the registration of IDPs, ensuring access to employment, and providing emergency shelter and non-food items, amongst many other efforts. UNICEF has focused on the health, nutrition, and education of the internally displaced children in Ukraine, while also emphasizing the need for monetary donations to continue its emergency relief. OCHA, the UN agency that coordinates the humanitarian responses to crises around the world, also emphasized the lack of funding and the need for emergency shelter and food security, amongst the many needs that must be met in Ukraine.

Map of Internal Displacement Statistics in Ukraine

Map of Internal Displacement Statistics in Ukraine
Photo Credit: UNHCR.org

While UN Agencies struggle to keep up with the needs of IDPs, State actors are struggling to respond to the situation. While a French-German proposal for a cease-fire has been reached but remains ineffective in some areas, the response from the rest of the European Union also appears to be focused on diplomacy. In a recent speech to the European Parliament, the EU High Representative/Vice President, Federica Mogherini, emphasized, “that there is no alternative solution to a diplomatic solution for this crisis.” Meanwhile, United States officials have continued to debate whether or not to send arms to Ukraine.

While State actors attempt to determine the best course of action, Ukraine has adopted legislation concerning IDPs and the people of Ukraine are reportedly acting very generously toward IDPs. However, the question remains: how effectively can the Ukrainian government enforce its legislation and uphold their end of the ceasefire, and how long will Ukrainian generosity last, as more and more people are displaced every day?

One answer to these issues is funding. Simply put, the agencies attempting to address the problems facing IDPs need the money to continue to do so. UNICEF has already spent the US$10 million dollars that have been pledged, and still lacks about $20 million in committed funds. UNHCR has reported that it needs US$41 million dollars for the situation in Ukraine, and has only received two percent of those funds. Thus far, the funds received have been from only the European Union.

While it is the primary duty of the national authorities to provide assistance to IDPs, the international community can still play its part in assisting the national authorities of Ukraine. Agencies like UNHCR and UNICEF, along with many other partners, are poised to help the IDPs of Ukraine; they simply need the funding to adequately do so. It is time for the international community to step up and provide the monetary assistance necessary to provide for and protect the IDPs of Ukraine.

Julie Marling is a 2L law student at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

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Ukraine's flag next to the NATO flag.

Critical Analysis: Russia seeks “100% Guarantee” Ukraine will not join NATO

November 25, 2014

A spokesman for Russian president Vladimir Putin told the BBC on Tuesday that Russia was nervous about NATO’s expansion towards its borders, and called for the West to make a “100% guarantee that no one would think about Ukraine joining NATO.” This may be the first time that the Russian government has stated explicitly what was widely believed to be the primary motivation behind Russia’s military annexation of Crimea earlier this year and its subsequent support for the armed separatist movement in the Russian-speaking eastern regions of Ukraine. This might present an opportunity for reaching an agreement to end the conflict in Ukraine, but the spokesman, Dmitri Peskov, did not appear to state it as such.

Ukraine's flag next to the NATO flag.

Ukraine’s flag (left) next to the NATO flag.
Photo Credit: NATO Press Center

Since Ukraine’s pro-Russian president Viktor Yanukovych was overthrown by the EuroMaidan protests in February, some Western diplomats and scholars have pointed to what is known as the “Finland option” as a path for Ukraine that would be acceptable to Russia, the U.S., and Europe. Finland, which became independent from Russia in 1917, is a member of the European Union, but has never joined NATO, and has extensive economic ties to both Russia and Europe. If Ukraine were to pursue a similar course, its association with Europe and eventual EU membership might not be seen by Russia as a threat, and Putin could be persuaded to accept an independent, territorially unified Ukraine.

U.S. and European officials have not publicly indicated any willingness to give Russia any guarantees about Ukraine’s future ties to NATO. They continue to accuse Russia of destabilizing Ukraine and violating the ceasefire in place in the eastern regions since September. On the same day as Peskov’s remarks, NATO’s Secretary-General Jens Stoltenberg said that Russia was again building up its military forces on the Ukrainian border, and possibly crossing into the separatist-controlled area. Germany’s foreign minister said there was still no end to the conflict in sight.

The longer the conflict continues, it will become more difficult for Ukraine to find a sustainable middle ground between Russia and the West. Russia’s other European neighbors, NATO members and non-members alike, have become increasingly concerned by Putin’s aggression in Ukraine and may respond by increasing their military cooperation with the West. The “Finland option” may not even be retained by Finland itself.

It is not clear whether Peskov’s comments indicate that Russia is willing to change its policy in Ukraine in exchange for a guarantee from NATO not to extend membership to Kiev. If so, a compromise solution would be within reach. For it to succeed however, Russia would have to fully accept Ukraine’s integration into the EU, even if it is out of NATO.

 

Scott Petiya is a 4LE student and Staff Editor for the Denver Journal of International Law and Policy

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Critical Analysis: The Economic Impact of Russian Sanctions

 

Introduction

The US is ready to impose further sanctions on Russia for its continuing activities in Ukraine, and the markets are once more faced with uncertainty. This announcement is the latest development in US and EU exchanges with Russia over events in Ukraine and suspected Russian involvement. In November 2013, Ukrainian President Victor Yanukovych abandoned an agreement strengthening ties with the EU in favor of a closer relationship with Russia. That decision led to anti-Yanukovych protests in Ukraine, which became more violent as the unrest spread and intensified from November through February. On February 22, Yanukovych fled Ukraine after a political coup ousted him from power, and a new Ukrainian government took power. The new government’s Western leaning stance caused many in Crimea to seek support from Russia, which culminated in Crimea’s parliament voting to join Russia on March 6th. On March 16th, a referendum was held where 97% of Crimea’s voters decided to join Russia. Russia formally annexed Crimea on March 21.

 

The First Round of Sanctions

While the events in Ukraine were taking place, leaders in the US and the EU were determining how to respond to Russia’s involvement in the events. In response to the rising unrest in Crimea and Russia’s involvement, President Obama issued Executive Order 13660 on March 6th freezing the assets of any person “directly or indirectly” engaged in activities threatening the peace, disrupting the democratic processes, or misappropriating assets in Ukraine. The Executive Order set the legal authorization for further sanctions and allowed the US Department of Treasury to impose financial sanctions on individuals and entities meeting the Order’s definitions.

Similarly, the EU adopted Decision 2014/119/CFSP and Regulation 208/2014 on March 5th and 6th respectively. The two pieces of legislation directed EU member states to impose restrictions on the funds and economic resources “belonging to, owned, held or controlled by persons” involved in the misappropriation of Ukrainian state funds or who were responsible for human rights violations in Ukraine. The EU applied its sanctions against 18 named individuals, including former Ukrainian President Victor Yanukovych, Yanukovych’s family, and his close allies.

The most immediate business effect of the first round of US and EU sanctions was uncertainty. Although the US is not among the top ten trading partners with Russia, Russia “remains a crucial market for American retail, construction and energy companies, as well as some of the biggest United States banks.” Europe’s economy is more tightly integrated with Russia than the American economy is, with Europeans engaging in $460 billion in business with the Russian economy. In economic terms, the largest impact of the sanctions was to increase demand for investment in safe commodities, such as gold. With uncertainty looming heavy on the minds of investors, traders also invested in options markets to offset any potential losses that future tensions might create.

 

Second Round of Sanctions

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In response to Russia’s actions in Ukraine, both the US and the EU have taken steps to enact economic sanctions against Russia. Image: Politico.com

Following the March 16th referendum where Crimean citizens overwhelmingly voted to join Russia, US President Obama passed Executive Order 13661. Order 13661 was a continuation of the sanctions already imposed, and it expanded the reach of sanctions by freezing assets of eleven named individuals, including former Ukrainian President Viktor Yanukovych and two aides of Russian President Vladimir Putin. The Order also allowed for expanding the reach of the sanctions to Russian officials, those persons or entities who “operate in the arms or related materiel sector in the Russian Federation,” or those persons or entities who “have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services” to Russian officials.

The sanctions imposed by the EU in response to Crimea’s vote to join Russia went further than those from the US. On March 17th, the Council of the EU adopted Decision 2014/145/CFSP and Regulation 269/2014 that imposed travel restrictions and asset freezes on an additional 21 Ukrainian and Russian officials. The EU sanctions prohibit any direct or indirect sharing of financial or economic resources with the named individuals or persons responsible for action that threatens the sovereignty of Ukraine. In contrast to those individuals named in the American list, which appeared to target high-ranking Russian officials, the EU sanctions were directed toward mid-level officials who may have been more “directly involved on the ground.”

The second round of sanctions seemed to effect an easing of tensions, which created positive gains from an economic standpoint. The day following the imposition of sanctions by the US and the EU, Russian President Vladimir Putin stated that Russia did not seek any further division of Ukraine. This in turn eased fears among investors because it assuaged much of the concern that the crisis would deepen: “The probability that things could get worse in eastern Ukraine is reducing,” one market strategist was quoted as saying in response to the second round of sanctions. As a result, stocks in both the US and Russia experienced gains following the March 17th sanctions.

 

Third Round of Sanctions

In an attempt to put more pressure on Russian President Vladimir Putin for Russia’s decision to annex Crimea, US President Barack Obama issued Executive Order 13662 on March 20th, which imposed another set of sanctions on Russia.  The Order continued the sanctions already in place while naming a further twenty Russian officials whose assets were frozen. In addition, Order 13662 included sanctions against Bank Rossiya, Russia’s seventeenth largest bank, which resulted in prohibitions on trading with the bank. Targeting the bank was significant because the bank not only serves as a personal bank for many senior officials in Russia, but it also provides services related to the oil, gas, and energy sectors.

In lockstep with the US, the Council of the EU adopted Decision 2014/151/CFSP and Regulation 284/2014 on March 21st. The EU’s sanctions added travel restrictions and froze the assets of an additional 12 Ukrainian and Russian officials.

Prior to the third set of sanctions, the direct impact from the previous sanctions had been minimal. The third round of sanctions changed that, with Russia’s sovereign rating being downgraded (sovereign ratings reflect an opinion on “the future ability and willingness of sovereign governments to service their debt obligations to the nonofficial sector in full and on time”). Russia’s stock indexes opened significantly lower following the sanctions, and Visa and MasterCard ceased operations with Bank Rossiya. The sanctions also had the effect of injecting uncertainty back into the markets as it was unclear how long these sanctions would be in place and how far reaching the sanctions’ impact will be.

 

Conclusion

Although there have been no further official sanctions against Russia since Russia formally annexed Crimea, the situation remains tense.[1] Pro-Russian forces have seized government buildings in Eastern Ukraine and armed men without insignias have been spotted in Eastern Russia, reminiscent of the unidentified armed soldiers present before Crimea declared independence from Ukraine. Continuing unrest in Eastern Ukraine has prompted officials in the EU and the US to consider the imposition of further sanctions on Russian officials. Based on the consequences of the previous sanctions, the only thing that can be certain is that markets will continue to face uncertainty until the situation is resolved.

 

Greg Henning is a 3L at the University of Denver Sturm College of Law and a General Editor for the View From Above


[1] On April 11, the US Department of Treasury imposed sanctions on seven Crimean separatists and Crimean-based Chernomorneftegaz, a gas company. The impact of those sanctions remains to be seen at the time of writing this article.

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Critical Analysis: What does territory annexation and secession look like in the modern world?

Russia’s recent annexation of Ukraine raises an interesting question: What is required for legal territory annexation or secession under international law?

crimea-referendum_embed

The UN has declared Russia’s annexation of Crimea illegal under international law and the Ukrainian Constitution. Image: Allvoices.com

It is illegal under international law to annex territory by coercion or force, but the possibility remains that one country can annex the territory of another through “legal” means. Russia’s actions in annexing Crimea have been declared illegal by the United Nations. In its resolution, the UN General assembly noted that the annexation was not only against international law, but contravened the Ukrainian constitution. This implies that Russia may annex Crimea if Ukraine, as a nation, agrees to let Crimea go.

The illegality of Russia’s actions in Ukraine have led the United States and the European Union to impose sanctions against Russia. It remains to be seen whether these actions will have any effect on the Crimean situation.  Russia has responded to these sanctions by saying it has the right to respond “tit for tat.” Russian troops poised on the border with Ukraine are seen as indications that Russia intends to annex the rest of the country, which was formerly a part of the Soviet Union, while Ukraine is in the midst of political crisis. U.S. Secretary of State John Kerry has stressed that no decision about Ukraine’s future can be made without the involvement of Kiev, which has also declared Russia’s annexation of Crimea to be illegal.

Exactly who has a say as to what territory belongs to which country is an interesting question. The Ukrainian government based in Kiev is clearly loath to permit Russia to take over Crimea.  However, Russia did not annex Crimea by force or arms. Instead, a referendum was held and a majority of Crimeans voted to leave Ukraine and join Russia. This referendum is controversial, and the presence of Russian troops in Crimea at the time do not aid its validity.

If armed forces had not been involved, would the Crimea referendum be viewed differently?  Later this year a referendum will be held in Scotland to determine whether Scotland will remain in the United Kingdom or depart from that union to become an independent country. As the debate heats up about the effects of an independent Scotland, many in England have voiced the opinion that Scotland’s independence should not be decided by the Scottish alone.  Although the referendum has the blessing of the U.K. Parliament and Prime Minister David Cameron, many English residents are concerned because they have not been given the chance to voice their own opinion on Scottish independence at the polls.

Is it essential to the legality of territory secession or annexation to have all countries agree to the new border?  Or is it simply enough that no force or coercion is used in the annexation of territory?  As is clear from the Crimea referendum, military presence casts doubt on the legality of a vote.  The international community has also expressed great concern about the lack of Ukraine’s involvement in the referendum. Scotland’s referendum may be a guiding example of peaceful secession and independence under international law, but this remains to be seen.

Laura Wood is Senior Managing Editor of the Denver Journal of International Law and Policy

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Critical Analysis: Hope for Ukrainian Democracy with the Parliament and the Protesters

Major upheaval in the Ukrainian government followed fiery and deadly protests in Kiev’s Independence Square last week.  Parliament ousted President Viktor Yanukovych and declared a new interim president.  Two groups, members of parliament (“MPs”) and hoards of protesters, played an integral part in the changes in Ukraine.  Maintaining the tentative peace in Ukraine depends in part on whether parliament’s actions over the last week carry the force of law.  One important issue is whether parliament’s reversion to the 2004 Constitution this weekend was legal; the 2004 Constitution provides for expanded parliamentary powers and diminished presidential powers.  This article first discusses the protests and revelations about the ousted president to provide context for parliament’s actions then analyzes the role of the Ukrainian Parliament moving forward.

Protesters occupied Independence Square in Kiev since November 2013, when President Yanukovych abandoned a massive deal with the EU in favor of a stronger connection with Russia.  Protests quickly expanded to include criticism of “corruption, human rights abuses and calls for Yanukovych’s resignation.”  The protests fluctuated in size over the last three months.  One day in December, “at least 300,000” protestors demanded the resignation of President Yanukovych.  The protesters come from various parts of the political spectrum, from current MPs to violent radicals.  Most protesters initially remained committed to nonviolence, until allegations that police killed more than 70 protesters between February 18th and February 20th fundamentally changed the protests.  One report on February 20th describes white collar protesters adopting violent methods, such as a computer programmer who joined a fighting unit and a phone company manager who provided supplies for Molotov cocktails.  Ukraine is a young democracy, dating back to the fall of the U.S.S.R. in 1991.  The violence during protests in Kiev last week is unprecedented during this period of democracy.  Instead, up to this point, the citizenry has used peaceful protests to express disapproval of politicians.  For example, the generally peaceful Orange Revolution in 2004 occurred after claims of presidential election rigging and resulted in a rerunning of the election.

Independence Square on February 20th as anti-government protestors clash with riot police. Image Source: AFP

Independence Square on February 20th as anti-government protestors clash with riot police. Image Source: AFP

On Friday, February 21, President Viktor Yanukovych seemed likely to stay in office until December under the terms of a compromise deal.  However, Yanukovych fled Kiev on Saturday, and parliament issued a warrant for his arrest for crimes related to the violence against protesters and financial misconduct.  Parliament put Oleksandr Turchynov, a key ally of recently freed opposition leader Yulia Tymoshenko, in control of Ukraine after ousting Yanukovych.  Parliament declared Mr. Turchynov the new speaker and interim prime minister, then the interim president.  He hopes to form of an interim unity government by Thursday, February 27th.  Mr. Turchynov describes the current economic situation in Ukraine as “catastrophic” and says the economy is on the verge of default.  This precarious economic situation motivated negotiations with the EU in November.  Alongside reports of Mr. Turchynov’s statements about the economy, new details about Yanukovych’s opulent lifestyle emerged after his lavish country estate was nationalized over the weekend.  Reporters combed through financial documents found at the estate, which include these expenses: “Decoration of a dining hall and tea room: $2.3 million. Statue of a wild boar: $115,000. ‘A bribe’: $4,000.”  The estate includes a golf course, a collection of classic cars, a private restaurant shaped like a pirate ship, and a zoo.  Presumably, the link between the empty coffers and the lavish lifestyle will be clarified as investigations proceed.

The legitimacy of parliament’s decisions depends in part on whether the 2004 Constitution, with expanded parliamentary powers, was legitimately reinstated this week.  The failed compromise deal on February 21 included a provision for reverting to the 2004 Constitution.  The 1996 Constitution provides for a more powerful presidency, and the 2004 Constitution provides for a more powerful parliament. In 2010, Ukraine’s Constitutional Court repealed the 2004 amendments and reverted to the 1996 Constitution; thus, the 1996 Constitution was in place leading up to the protests.  Now the question is whether the 2004 Constitution was validly reinstated. Reversion to the 2004 Constitution limits the powers of the presidency in favor of the parliament.  Initially, parliament voted in favor of reverting to the 2004 Constitution as part of the compromise deal on Friday, but Yanukovych never signed that bill.  After the compromise deal fell apart, the parliament voted again the next day.  On Saturday, February 22nd, 325 of the 331 MPs present voted in favor of reinstating the 2004 Constitution.  However, there may be future challenges to the second vote because a 3/4ths majority, 338 out of 450 MPs, is required for a valid constitutional amendment.  Challenges to the second vote may be unsuccessful given the current political climate in Ukraine; distrust of Yanukovych and anger over deaths of the protesters will make a challenge from within Kiev difficult.  Similarly, analysts assume the pro-Yanukovych regions of Ukraine, in the south and east, are more likely seek independence than to seek changes in Kiev.

Irrespective of whether the 2004 Constitution applies, the Ukrainian Parliament appears to be the best institution to run Ukraine until the presidential elections on May 25 because the parliament is a democratically elected body. Half of the 450 seats in parliament are elected on a proportional basis to political parties that win 5% or more of the national vote.  The other half of the seats are elected using “first past the post” single member districts, where individual candidates are elected irrespective of political parties.  The most recent parliamentary elections, last held on October 28, 2012, received mostly positive assessments from international groups.  However, election observers criticized the excessive influence of the ruling party and the absence of two opposition figures, who were jailed following controversial trials.  Nonetheless, the parliamentary elections generally enabled voters to elect ideologically diverse candidates in a free election.  Parliament is made up of various political parties: in the last election, five different political parties each won 10% or more of the seats in parliament.  Still, parliament is imperfect: fistfights between MPs during legislative sessions raise questions about the stability of Ukraine’s parliament.  Some express concerns that parliament’s divergent political beliefs will prevent parliament from functioning as a cohesive body.  Nonetheless, with such dramatic political upheaval over the last week, the Ukrainian Parliament is the only democratically elected governing body in place.  Potential future constitutional challenges, ensuring the formation of Mr. Turchynov’s unity government, addressing the failing economy, and preparing for the May 25 presidential elections all require cooperation within parliament.  Despite the potential difficulties ahead, the parliament is Ukraine’s best option for continued democracy.

Katharine York is a third year law student and a Staff Editor on the Denver Journal of International Law and Policy

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University of Denver Sturm College of Law

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