Reviewers:

dr hab. Jerzy Kranz

prof. dr hab. Anna Wyrozumska

Editor:

Michał Zgutka

Editing and proofreading:

James Richards

Cover and title page design:

Maryna Wiśniewska

Cover illustration:

Fotolia / Avantgarde

Copyright © by Scholar Publishing House Ltd. and The Centre for Polish-Russian Dialogue and Understanding, Warsaw 2017

Publication financed from the Polish funds of the National Science Centre allocated on the basis of Decision No. 2014/13/B/HS5/01490.

ISBN 978-83-7383-945-1 (ePub)

ISBN 978-83-7383-944-4 (Mobi)

Scholar Publishing House Ltd.

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First edition

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Table of Contents

Editorial

List of Abbreviations

Law, Politics and the Future of Crimea
Sławomir Dębski

Part I – Issues of Self-Determination

Self-Determination – Secession – Recognition (Remarks on the International Legal Background to the Incorporation of Crimea into the Russian Federation)
Władysław Czapliński

The Case of Crimea: Self-Determination and Exercise of the Right to Secession or Annexation?
Oleksandr Zadorozhnii

Exercise of the Right to Self-Determination: International Standards versus the Crimean Mess
Oleksandr Moskalenko

Revisiting the Principle of Self-Determination
Vladislav Tolstykh

Muddying the “Bright Lines”: The Crimean Claim to Self-Determination in a Policy-Oriented Perspective
Daniele Amoroso

Part II – Crimea and the Use of Force

The Annexation of Crimea in the Light of the Definition of Aggression. Does Prohibition of Aggression apply to Russia?
Patrycja Grzebyk

A Quarter of a Century on from the Soviet Era: Reflections on Russian Doctrinal Responses to the Annexation of Crimea
Maria Issaeva

The Russian Practice of the Forcible Protection of Nationals Abroad: Legal Implications
Mindia Vashakmadze

Part III – International Responsibility and the Crimean Conflict

Reactions to Russia’s Annexation of Crimea and the Legal Consequences Deriving from Grave Breaches of Peremptory Norms
Enrico Milano

International Reactions to the Crimea Annexation under the Law of State Responsibility: “Collective Countermeasures” and Beyond?
Maurizio Arcari

The Legality of the EU Trade Sanctions Imposed on the Russian Federation under WTO Law
Łukasz Gruszczyński, Marcin Menkes

The Ukrainian Crisis: Wrong Responses of the International Community?
Alena F. Douhan

The Relationship between State and Individual Responsibility for the Annexation of Crimea
Beatrice I. Bonafè

The Ukrainian Crisis and the Prospects for International Criminal Justice
Bartłomiej Krzan

Part IV – Follow-up of the Conflict: Civil War in Ukraine?

Naming Names: The Prudence, Propriety and Potential Ramifications of Employing “Terrorist” Nomenclature to Describe Militant Separatists in Eastern Ukraine
Matthew C. Kane

The Shooting Down of Malaysia Airlines Flight MH 17
Sigmar Stadlmeier

Editorial

Nowadays, when we refer to Russian actions against Ukraine we can separate the responsibility of a state and the responsibility of individuals, but even though we are able to divide these questions quite distinctly, a question arises as to the effective application of present-day regulations of international law to this particular inter-state conflict. The majority of UN member states supported Ukraine’s independence, numerous actors – including the US, the EU, Canada, Japan and Australia – imposed sanctions against Russia as a means of disapproval of blatant violation of international law and in response to the Russian threat posed to the sovereignty and territorial integrity of Ukraine.

Crimea`s annexation has caused serious concern in Central and Eastern Europe. The Russian position toward international law and the territorial integrity of its neighbors has become an urgent political, legal and research problem. Dr Sławomir Dębski, then Director of the Centre for Polish-Russian Dialogue and Understanding and Professor Władysław Czapliński, then Director of the Institute of Law Studies of the Polish Academy of Sciences concluded that a large international conference should be organized to look at those problems through the prism of international law. On the anniversary of the annexation of Crimea, the conference took place in Warsaw and brought together renowned international lawyers. This book is the result of ongoing fruitful cooperation between the two institutions as they seek to assess the legal complexities of what happened in Ukraine, as well as possible legal responses.

The Centre for Polish-Russian Dialogue and Understanding is a state legal person supervised by the Ministry of Culture and National Heritage of the Republic of Poland, with a mission to initiate and support projects undertaken in Poland and the Russian Federation and dedicated to improving dialogue and understanding between the two countries, especially by supporting academic work.

The Institute of Law Studies of the Polish Academy of Sciences is one of the most prominent scientific research institutes of the Polish Academy of Sciences within the area of social sciences. The function of the Institute is to coordinate and conduct basic research in the area of legal studies, from both the theoretical and practical perspectives.

Celina Nowak, Director of the Institute
of Law Studies of the Polish Academy of Sciences

Ernest Wyciszkiewicz, Director of the Centre
for Polish-Russian Dialogue and Understanding

List of Abbreviations

Am. J. of Int’l L.

– American Journal of International Law

Am. J. of Int’l L. Unbound

– American Journal of International Law Unbound

AVR

– Archiv des Völkerrechts

B.C. Int’l & Comp. L. Rev.

– Boston College International and Comparative Law Review

BYBIL

– British Yearbook of International Law

Cardozo L. Rev.

– Cardozo Law Review

Ch. J. Int’l L.

– Chinese Journal of International Law

ESIL Reflections

– European Society of International Law Reflections

Eur. J. Int’l L.

– European Journal of International Law

Eur. J. Int’l L.: Talk!

– European Journal of International Law: Talk!

GA Res.

– General Assembly Resolutions

GAOR

– General Assembly Official Records

GATS

– General Agreement on Trade in Services

Ger. Law J.

– German Law Journal

Goettingen J. Int’l L.

– Goettingen Journal of International Law

Hastings Int’l & Comp. L. Rev.

– Hastings International and Comparative Law Review

Heidelberg J. Int’l L.

– Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht und Völkerrecht – ZaöRV)

ICJ

– International Court of Justice

ICJ Rep.

– International Court of Justice Reports

ILM

– International Legal Materials

ILR

– International Law Reports

Int’l & Comp. Law Q.

– International and Comparative Law Quarterly

Int’l L. Stud. Ser. US Naval War Col.

– International Law Studies Series. US Naval War College

Kw.Pr.Pub.

– Kwartalnik Prawa Publicznego

LNTS

– League of Nations Treaty Series

MN

– minute

New Crim. L. Rev.

– New Criminal Law Review

N.Y. L. Sch. J. Int’l & Comp. L.

– New York Law School Journal of International and Comparative Law

OJ L

– Official Journal of European Union Legislation

PiP

– Państwo i Prawo

PYIL

– Polish Yearbook of International Law

QIL

– Questions of International Law

RCADI

– Recueil des cours de l’Académie de droit international de La Haye

Russ. Law J.

– Russian Law Journal

SCR

– Supreme Court of Canada Reports

U. Pa. J. Int’l

– University of Pennsylvania Journal of International Law

U.C.L.A. J. Int’l L. & For. Aff.

– UCLA Journal of International Law and Foreign Affairs

UNSW L. J.

– The University of New South Wales Law Journal

UNTS

– United Nations Treaty Series

VA J. Int’l L.

– Virginia Journal of International Law

Yale L.J.

– Yale Law Journal

YbILC

– Yearbook of the International Law Commission

Law, Politics and the Future of Crimea
Sławomir Dębski[*]

doi: 10.7366/9014Crimea1

In 2014, following the launch of an armed attack against Ukraine, the Russian Federation annexed the Crimean Peninsula. However, while “Crimea is ours” has since been heard all across Russia, the sentiment is not shared outside the country, where the dominant position is that Crimea remains part of Ukrainian territory, albeit temporarily under Russian occupation. In the Resolution of the United Nations General Assembly adopted on 27 March 2014,[1] an overwhelming majority of states refused to underwrite the opinion that Crimea now belongs to Russia. A total of 100 states voted against recognising Crimea as a part of the Russian Federation, a further 58 abstained (which translates in practice into denying their support to Russia), and only 11 states backed the Russian position. The Resolution in fact recommends that no UN Member should recognise Russia’s sovereignty over Crimea – and acting on this basis the globe’s most advanced nations, best suited to enforcement of UN recommendations, have imposed economic sanctions on Russia and the Crimean territory it occupies. The goal here is to prevent the effective incorporation of the Peninsula into Russia.

It should be noted from the outset that the above approach represents neither Russophobia nor anti-Russian prejudice, but is rather a reflection of the very practical, pragmatic political conclusion that the world would be regressing and (even) less safe than it is today, were annexation to be condoned as a legitimate instrument of international politics. To think otherwise would be to invite others to make similar unilateral attempts at annexation, thus increasing the risk of conflict still further.

In accordance with UN General Assembly Resolution 3314 of 1974,[2] the international community perceives the notion of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations (Article 1 of Annex).” Also regarded there as acts of aggression are: “the blockade of the ports or coasts of a State by the armed forces of another State (Article 3c)” and “the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement (Article 3e).”

To be set against that are public statements by the Russian President, made during a video conference call on 17 March 2014, and in the documentary “Crimea: the Road to the Motherland”, broadcast by the Rossiya 1 channel on 16 March 2015, in which V.V. Putin admits to having given on 20 February 2014 order to the Russian Armed Forces to annex Crimea into Russia.

This by the way denotes that the Russian military operation against Ukraine was launched 3 weeks prior to the 16 March 2014 referendum held in Crimea – but not recognised by Ukraine – in which a majority purportedly opted for breaking away from Ukraine and joining Russia. This further ensures that the secession referendum is to be seen as having been conducted on Ukrainian territory occupied by Russian troops, in violation of the norm of international law laid down in Article 45 of the 1907 Hague Convention, whereby: “It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile Power.”

Moreover, those with a good knowledge of history would also find it hard to dismiss similarities between the way Russia annexed Crimea and the method the Soviet Union used against the Polish state in 1939, following the 17 September aggression. The Soviet authorities in the occupied territories then held “elections” to people’s assemblies in western Ukraine and Byelorussia, and those assemblies subsequently made a request to the Soviet government, to the effect that the territories of the Polish state occupied by the Soviet authorities should be incorporated forthwith into the USSR.[3]

Russia’s armed aggression against Ukraine thus went hand in hand with Russian aggression against international law. And, while it is only natural that typical parties to a political conflict will always try to push arguments for the legality of their moves, the Russian government’s activities relating to Crimea actually transcend the bounds of building a legal case – and as such can be regarded as a form of “international law trolling”, seeking to undermine, relativise and destroy the international legal order. From this viewpoint, the most destructive argument invoked by Russia to justify its action against Ukraine was its citing of earlier examples of international-law transgressions.

And so, Russia has pressed on (as for example in President Vladimir Putin’s pronouncements of 2014) with the claim that, given other states’ violations of international law in the past, Russia also has the right to such violations[4]. In this context, comparisons were made between Russia’s policy towards Ukraine on the one hand, and – on the other – the use of force over Kosovo, and/or the Iraq intervention by the United States and its allies. It can be seen how this argument seeks to destroy the reference point from which to assess the extent and scale of Russia’s violations of international norms in connection with the aggression against Ukraine and annexation of Crimea. If international laws are being violated, Russia argues, then this means that these norms do not work. And if they do not work, Russia cannot be accused of violating them. This is an attempt to legitimise unlawful actions via analogy with precedent-setting violations, but this reasoning involves a fallacy. Russia after all cannot argue simultaneously that the Kosovo and Iraq interventions violated the international legal order and that the Crimea annexation was in keeping with that order.

Another means of international law trolling by the Russian government has entailed the release into the public domain of statements that are evidently untrue. One example might be the assertion that Russia has never contravened the so-called Budapest Memorandum, as made by Sergei Lavrov, Foreign Minister of the Russian Federation, at a press conference held on 26 January 2016: “If you’re referring to the Budapest Memorandum, we have not violated it. It contains only one obligation—i.e. not to use nuclear weapons against Ukraine. No one has made any threats to use nuclear weapons against Ukraine.”[5] In fact, the Budapest Memorandum signed by the Presidents of Russia, the United States, and Ukraine, as well as the Prime Minister of the United Kingdom has the signatories reaffirming their commitments:

• “to respect the independence and sovereignty and the existing borders of Ukraine;”

• “to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine;”

• “to refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty;”

• to provide assistance “if Ukraine should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used;” and

• “not to use nuclear weapons against any non-nuclear-weapon state party to the Treaty on the Non-Proliferation of Nuclear Weapons, except in the case of an attack on themselves, their territories or dependent territories, their armed forces, or their allies, by such a state in association or alliance with a nuclear weapons state.” (Ukraine had just acceded to the Non-Proliferation Treaty as a non-nuclear weapons state.)[6]

Just as Mr Lavrov made his claim that Russia did not renege on its commitments under the Budapest Memorandum, anyone with access to the internet could check that the Foreign Minister of the Russian Federation misled his audience, intentionally and with premeditation. Why did he do so? An explanation that springs to mind is precisely internet trolling, a striving to have patently false assertions circulated, so that these might coexist with true statements and – at a time of information overload – make it difficult for people to separate the wheat from the chaff. This permits the (somewhat shocking) conclusion that the Foreign Minister of the Russian Federation is intentionally seeking to destroy the international (law) order, and muddy waters when it comes to appraising Russia’s actions towards Ukraine. The international credibility of the Minister himself, and the state he represents, is obviously a value. But is it valuable enough? It would not seem to be valued by a state that makes violation of international law an instrument of its foreign policy. Russia has already paid a high reputational price, and in the future – when opting to rebuild its position in the international community – the country will have to address the political and legal contentions it is now diffusing so carelessly.

It should also be noted that in neither Kosovo nor Iraq did any state annex another’s territory. Rather, each of those interventions involved a coalition, and was mandated by the UN – even if the said mandate did not extend so far as to warrant the intervention. But, even if we agree that the mandates in both of the above cases were tenuous, far-fetched and insufficient, that is not to say that they did not exist at all. Indeed, there can be no doubt that we would be in a different place right now if Russia could produce even the weakest and most contrived of UN mandates, and were backed by even the smallest of coalitions. But nothing of the sort has occurred, as we know. Instead, we have a clearly unilateral annexation of Crimea that has not been, and will never be, condoned by the international community.

All of this will not be changed by attempts to impart some kind of sacred importance to Crimea (such as calling it a “Russian Jerusalem”[7]) or to invalidate the 1954 decision to incorporate Crimea into the Ukrainian Soviet Socialist Republic. Both approaches speak less of any creativity than of a rather low level of legal awareness on the part of their authors.[8] Post factum, there is no way of giving a semblance of legality to the Russian moves towards Ukraine. It is beyond any doubt that over the 1991–2014 period, Russia did not question Ukraine’s sovereignty over the Crimean Peninsula. If Russia had made territorial claims against Ukraine, or any other neighbour, back in 1991, the question of recognising the country as a legal successor to the USSR, with a Permanent Seat at the UN Security Council, could have been viewed quite differently. The assumption by Russia of the USSR’s rights at the UN required unanimous agreement by all UN members, including Ukraine. A single voice of opposition would have deprived Russia of its veto power at the Security Council, and it really stretches the imagination to think that Ukraine could have accepted the Russian request if had been pressed with Russia’s territorial claims. And it should be kept in mind that Russia is just one of the legal successors of the Soviet Union, along with other states that emerged after the latter’s breakup.

Thus, following the end of the Cold War, the condition for recognising Russia as inheriting the USSR’s superpower status was that Russia should pursue peaceful policies, have no territorial claims against neighbours, and renounce annexation, or the use of force or threats to that effect, as a policy instrument. From this point of view, when Russia signed up to the Budapest Memorandum[9] – guaranteeing Ukraine’s territorial integrity and freedom from Russian military, political and economic pressures in exchange for the Ukrainian nuclear arsenals being turned over to Russia – it only confirmed the commitments Russia made previously by virtue of its membership of the UN and the OSCE, and as a country bound by the 1990 Paris Charter.

Thus calls made lately in Russia for an entirely new security system, which would reflect Crimea’s being a part of that country,[10] could well be compared to a hypothetical situation in which a “road hog” unwilling to comply with the speed limits decreed in the Highway Code argues that code in its entirety is failing to function, with work therefore needing to begin immediately on the writing of a new code. The chances of success are very much similar in the cases of both requests.

Very soon, any business operation in Crimea will be doomed to become very narrowly specialised, and confined to the territory of the Peninsula. Crimea will be depopulating fast, with some inhabitants heading for Russia, others for Ukraine. The only development option for the Peninsula available to the Kremlin will be further militarisation. But the occupation of Crimea will limit Russia’s room for manoeuvre in foreign policy, blocking prospects for better relations with global heavyweights, or for the removal of trade and visa barriers. It will also kill chances for Euro-Asian integration, as Belarus and Kazakhstan, repelled by Russia’s policy methods, will prefer to move away from that country, rather than moving in closer, and this is to say nothing of their obvious unwillingness to underwrite the bill for the Crimea annexation.

In an attempt to constrain the big powers’ omnipotence, the international community seeks to have them bound by a network of international law commitments. And this civilisational achievement will not be given up just because the Kremlin has decided that Crimea will now be a part of Russia. What an overwhelming majority of UN Member States care for is not a peripheral peninsula of little importance, but a rules-based system as the bloodstream of contemporary international relations. It is therefore well worth searching for ways out of the entrapment.

Let it be assumed that the search for a solution to the problem begins in 2030. Projecting so distant a future usually brings little practical gain, but it will prove quite convenient in this particular case. This is because we can rest assured that, in 15 years’ time, the policy-makers responsible for the Crimea problem and for international-law trolling will have no influence on how the problem will be solved. The egress path should help strengthen peace in Europe and rebuild Russia’s credibility as a state contributing to a peaceful development framework for the whole continent. A political and legal mechanism will thus be needed, through which Russia could recommit to the principles laid down in the UN Charter and the Charter of Paris, and especially the renunciation of annexation and the threat or use of force against neighbouring countries.

There are three ways by which this goal might be approached more fully:

1) if a bilateral Russo-Ukrainian treaty to regulate the future of the Peninsula is concluded, and if this involves a secession to Russia in exchange for reparations for Ukraine;

2) if Russia abandons attempts to annex the Peninsula, concluding with Ukraine an agreement on joint governance in a transitional period, and on the manner in which Crimea’s final status will be determined, with account taken of the freely expressed will of its inhabitants;

3) if an international trust-territory regime is introduced for something like 20 years, after which time the trust authority would be asked to hold a referendum to determine which state the Peninsula would join.

The first two scenarios, near-optimal though they might be, would be very difficult to implement even in a distant future, given the emotions on both sides to the conflict which will be pushing up the political price of the bilateral scenarios – in Russia and in Ukraine. From this standpoint, lower costs would be borne with the third scenario, providing for the establishment of a temporary Russian-Ukrainian condominium under an international trusteeship.

A similar condominium did exist between 1919 and 1939. It was the Free City of Danzig/Gdańsk, in which executive power was exercised by the League of Nations High Commissioner[11]. Today, the United Nations Trusteeship Council could prove useful. Established to ensure the peaceful course of decolonisation, that body is still in existence – even though most trust territories gained independence in the 1960s, and the last (Palau) in 1994 – and it can come in handy as a peaceful solution for the Crimea problem is sought. The possibility of a contentious territory coming under UN trusteeship on a voluntary basis is provided for in Chapter XIII of the United Nations Charter. The terms of trusteeship for a particular territory are specified in an international agreement, wherein the administering authority is indicated. Such authority could be exercised by a state, a group of states (for example OSCE members), or the United Nations as a whole. The objectives of the international trusteeship system are listed in Article 76 of the UN Charter, the most prominent being “to further international peace and security.” Russia, Ukraine and the whole of Europe need a mechanism whereby the solving of the Crimea problem could be transformed into a process which strengthens international peace and security. To this end, it is better to add a new function to an existing institution, rather than to build a special-purpose entity from scratch. The Crimea problem will neither sink into oblivion nor solve itself. We would do well if we today began contemplating the political and legal means of resolving the crisis, even if this remained a matter for a distant future.

The Crimea annexation represents a problem that is both political and legal. Given that its emergence had major implications for the legal position of the Russian state – or, to be more precise, led to its degradation – the political process of rebuilding Russia’s position in international relations will have to take account of measures it may resort to, to regain the status of a country respecting the fundamental norms of contemporary international law. Russia lost its position as a consequence of its own policy towards Ukraine, and only by pursuing a new policy towards the neighbour victimised by its aggression will Russia be able to restore its position. And international law will provide important support, showing future Russian policymakers the direction along which to lift Russia from the pit into which it was thrown by President Putin and his Foreign Minister, Lavrov, with their policy of aggression against Ukraine and annexation of Crimea.

[*] Sławomir Dębski, Ph.D., Director of The Polish Institute of International Affairs – PISM.

[1] Territorial integrity of Ukraine, Resolution adopted by the General Assembly on 27 March 2014, A/RES/68/262, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/262&referer=/english/&Lang=E: [accessed: 28.09.2017].

[2] Definition of Aggression, United Nations General Assembly Resolution 3314 (XXIX), http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/3314(XXIX)&Lang=E&Area=RESOLUTION [accessed: 28.09.2017].

[3] Keith Sword (ed.), The Soviet Takeover of the Polish Eastern Provinces, 1939–41, London 1991.

[4] Address by President of the Russian Federation, 14 March 2014, http://en.kremlin.ru/events/president/news/20603 [accessed: 28.09.2017]; President of Russia meeting with the Valdai Club, 24 October 2014 http://en.kremlin.ru/events/president/news/46860 [accessed: 28.09.2017].

[5] Sergey Lavrov’s remarks and answers to media questions at a news conference on Russia’s diplomacy performance in 2015, Moscow, January 26, 2016, http://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2032328 [accessed: 28.09.2017].

[6] https://www.brookings.edu/blog/order-from-chaos/2016/01/28/mr-lavrov-russia-and-the-budapest-memorandum/ [accessed: 28.09.2017].

[7] http://www.rferl.org/media/video/russia-putin-crimea-sanctions/26724940.html [accessed: 28.09.2017].

[8] Address by the President of the Russian Federation, 14 March 2014, http://en.kremlin.ru/events/president/news/20603, Генпрокуратура РФ: передача Крыма Украине в 1954-м была незаконной, http://www.bbc.com/russian/russia/2015/06/150627_russia_mironov_crimea [accessed: 28.09.2017].

[9] Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons signed by Ukraine, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America, https://www.msz.gov.pl/en/p/wiedenobwe_at_s_en/news/memorandum_on_security_assurances_in_connection_with_ukraine_s_accession_to_the_treaty_on_the_npt?printMode=true [accessed: 28.09.2017].

[10] https://www.ft.com/content/1b27cd0e-209e-11e5-ab0f-6bb9974f25d0 [accessed: 28.09.2017].

[11] K. Skubiszewski, Zachodnia granica Polski [The Western Frontier of Poland], Wydawnictwo Morskie, Gdańsk 1969, pp. 95–103.

PART I
ISSUES OF SELF-DETERMINATION

Self-Determination – Secession – Recognition (Remarks on the International Legal Background to the Incorporation of Crimea into the Russian Federation)
Władysław Czapliński[*]

doi: 10.7366/9014Crimea2

Introduction

The peninsula of Crimea was incorporated into the Russian Empire in 1802. In the mid-19th century it became one of the most important military areas of Russia, and it developed simultaneously into a favourite holiday resort of the Russian aristocracy, the wealthy in general, and artists. The influx of native Russians and emigration of Muslim Tatars to Turkey modified the structure of the population of what was still then termed “the” Crimea, with the proportion of the population that was Russian reaching some 40%. Under the Soviet government, the region of Crimea was granted autonomy. However, mass deportations to Central Asia of Crimean Tatars accused of collaboration with the German Occupants during WW2 changed the area’s demography once again: out of 1.2 million inhabitants at the beginning of the 1950s, more than 71% were Russians and 22% Ukrainians.

The decree of the Supreme Soviet of the USSR of 19 February 1954 transferred (“gifted”) the administration of the Crimea to the Ukrainian SSR from that of Russia. However, that did little to change the situation of the local population, as it was only in the mid-1980s, at the time of Gorbachev’s perestroika, that Tatars were allowed to return to their former settlements. The dismemberment of the USSR intensified a movement aimed at granting far-reaching autonomy to the Crimean region. A law passed by Ukraine (as the successor state) on 29 April 1992 went further in that direction. While pro-Russian residents of Crimea began to seek the creation of an independent state between Russia and Ukraine, the effective situation remained unchanged until spring 2014. Then, as a result of political events in Ukraine, and particularly the fall of President Yanukovich, partisans of the independent Crimea within the Supreme Soviet of the Autonomous Republic of Crimea proclaimed the Peninsula’s independence, and granted special status to the city of Sevastopol. This declaration was annulled by the temporary President of Ukraine, as well as by the Ukrainian Constitutional Court. However, Ukraine was unable to prevent the pro-Russian authorities of the AR of Crimea from holding a referendum on 16 March 2014. Officially, the turnout was at the level of 83.1% of inhabitants, with approx. 97% (i.e. 1.233M people) voting for independence. However, at the time of that referendum Crimea was already under occupation by what were presumably (and widely presumed to be) Russian military forces (in particular the famous “little green men”). The Crimean authorities requested incorporation of the AR of Crimea into the Russian Federation and the relevant treaty of accession was concluded on 18 March 2014. From the Russian perspective at least, Crimea ceased to belong to Ukraine and became part of the RF.

V.V. Putin’s doctrine, formulated in the Moscow speechmaking opportunity of March 18th 2014 includes a detailed indication of principles and norms of international law that have become guidelines for Russian foreign policy in the first decades of the 21st century. While continuity with previous Russian (or Soviet) military doctrines is to be noted, discussion is worthwhile given the apparent rooting in international law (at least as understood by Russia). Naturally, the norms in this legal field are understood in a specific way that is mostly supportive of Russia’s political position. In Putin’s speech, we find i.a. a reasoning for the annexation of Crimea and prospective Russian intervention in eastern Ukraine as well. One of the possible scenarios is the repeat-application of a mechanism Russia applied in relation to Georgia (South Ossetia and Abkhazia) and Moldova (Transnistria), which is based on an alleged right to self-determination of the local population. Such Russian argumentation requires analysis of the contemporary (both theoretical and practical) approach of international law to the right to self-determination, in connection with the admissibility of secession and the principle of the territorial integrity of states.

The aim of this essay is not to provide a systematic lecture on mutual relations between the three tenets of international law mentioned in the title[1], but rather to indicate the most important theoretical problems surrounding secession, and the stance of the international community towards it from the contemporary international legal perspective. Some issues will be omitted altogether, e.g. the matter of armed intervention carried out by third states in support of both separatist movements and governments opposing secession.

1. Right to self-determination in contemporary international law

The history of the right to self-determination as a basic tenet of international law is well known, so it does not seem necessary to present it in detail. We limit our remarks to the most important issues which raise doubts or disputes. Self-determination as a legal norm is reflected in the UN Charter (Art. 1 (2) and Art. 55), in the General Assembly Resolutions that interpret or specify the norms included in the UN Charter (in particular in Resolutions 1514 and 2625), in Security Council Resolutions (e.g. 183 (1963) and 218 (1965)), and finally in the provisions of Art.1 of both Human Rights Covenants of 18 December 1976. Since the entry of the latter instruments into force, the nature of the right to self-determination as a binding legal norm has had to go unquestioned, even if previously-enacted acts of the political organs of the United Nations may have been considered to confirm both the conventional and customary nature of the right to self-determination. The right has also gained confirmation in the case law of international courts, particularly the ICJ – in two judgments: East Timor and Wall on the Palestinian territories,[2] emphasised that the right to self-determination is effective erga omnes. However, such an interpretation of this notion may be disputable as, starting from the Barcelona Traction case, it has been used as a substitute for jus cogens. It would seems, in the East Timor case in particular, that the Hague Tribunal complicated matters by rejecting the possibility of a claim against the violation of this right being brought by Portugal in relation to Australia, assuming the lack of jurisdiction because Indonesia was excluded. In fact, the judges were expected to adjudicate the problem of violation of the self-determination of the East Timor population by Australia. The Hague Court escaped from the main problem of the case. The same conclusion can be drawn from the opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo.[3] The judges did not intend to take responsibility for any firm and unequivocal statement concerning the legality of secession of Kosovo or the right of Kosovars to self-determination. They simply interpreted the question posed by the UNGA extremely narrowly and literally.

The nature of the right to self-determination as a legal norm fails to raise doubts today. There is dispute as to whether it can have the special status of peremptory norm of international law conferred upon it, and the present author is somehow sceptical in respect of jus cogens, and so cannot accept such a proposal. We shall try to answer several questions prima facie resulting from the basic facts quoted above: is the population of the Crimea entitled to self-determination? Does it meet criteria for a people or a minority? What are the modalities through which the right to self-determination can be exercised? Does self-determination grant a right to secession? What is the relationship between self-determination and territorial integrity? Who is entitled to the right to self-determination?

We start with two statements made by two judges of the Hague Court. H.C. Dillard stated in the Separate Opinion in the Western Sahara case[4] that it was for people to determine the destiny of a territory and not the territory the destiny of people. This passus reflects the approach to self-determination confirmed in the later jurisprudence of the Court, emphasising the crucial importance of self-determination in contemporary international law. R.Y. Jennings, acting as a Law Professor and not as a judge, expressed a view that at first glance the answer was simple – we should let people decide about their fate. However, the people could not decide about their self-determination until someone had determined who constitutes a people.[5] In the colonial context, the rule was simple: Resolutions on decolonisation Nos. 1514 and 1541 stipulated both the manner in which the right to self-determination was to be exercised (as confirmed by Resolution 2625 – Declaration of principles of international law: a people that were the subject of a right to self-determination could create their own, newly-independent state, integrate with an existing new independent state or create such a state with another people; however, it could not remain part of the metropolitan State), and in fact defined the list of dependent territories entitled to self-determination. International law also provided a rule,[6] pursuant to which, without prejudice to internal institutions of the colonial state, the colonial territory did not constitute part of the metropolitan state. This meant that the creation of a new independent state could not be treated as secession, and so violation of the territorial integrity of the metropolitan state did not follow.

However, the situation is much more complicated in relation to non-colonial cases. The notion of a people is particularly vague, essentially because of the consequences deriving from such qualification in relation to self-determination. As examples, we should mention Tibetans, Kurds, Basques, Catalans and Tamils, whose claims for recognition as peoples have faced a diversified approach from the international community. Some authors emphasise that the notion of a people can be taken to describe any group of persons demonstrating features distinct from others (of language, race, religion, culture and so on). However, the majority of authors seem to point to a territorial dimension to the right to self-determination, actually or potentially awarding it to the population of a specific territory. Nonetheless, this approach implies a necessity that self-determination of a whole population be referred to (especially if the creation of a new state is about to follow the exercise of this right).

A special position is occupied by indigenous peoples who inhabit the territories colonised by external conquerors, and stand out in particular because of their ancient culture, language, beliefs, etc.[7]

2. Subjects of self-determination: Peoples vs minorities and non-state actors

The most important conflict nevertheless concerns national minorities, i.e. groups inhabiting the territory of a particular state which are members of nations possessing their own states, usually contiguous with the ones concerned. There is no generally binding definition of minorities in international law. For the purpose of this paper, we define a minority as individuals possessing the citizenship of a state of residence staying on the given territory over many generations, creating a uniform group that is perhaps small when set against all the inhabitants of a given state, but on a certain part of its territory still constitutes a majority of inhabitants.[8] The rights of minorities are of an individual character (like all human rights, except for the right to self-determination, which is collective in nature), but may be exercised in concert with the rights of other members of the particular minority. Individuals belonging to minorities have above all an awareness and sense of own identity and distinction, as well as a will to preserve that.

There is a complex and defined catalogue of rights afforded to minorities, as formulated in various legal acts and political documents (both multilateral and bilateral, but also in national legislations, which we may treat as international customary law-making elements). It embraces linguistic rights, and rights relating to educational systems, culture and religion. It is nevertheless arguable whether one can claim that in universal terms (or even regional terms, including on the European scale) minorities are entitled to special economic and political rights, including rights of different types and scope of autonomy. In essence, a minority is obliged to remain loyal to the state of residence, like all citizens.

The scope of plausible obligations of states in relation to minorities raises doubts. The problem of positive state obligations, i.e. actions which actively support minorities, comes to the fore. An alternative is to tolerate minorities, i.e. to refrain from such actions as could lead to violations of rights, including in particular as regards identity and assimilation.

Taking these considerations into account, it becomes clear that the notion of a minority is not identical with the notion of a people, even if the elements of the definition are characterised by prima facie overlap. Nevertheless, most definitions of minorities do not relate to the relationship between the group’s individuals and territory – in order to facilitate the distinction between rights of a minority and rights of a people. A minority is entitled to a certain, not more precisely-defined scope of autonomy, whilst peoples are the subjects of the right to self-determination.[9] This distinction has substantive consequences. International lawyers often distinguish internal and external rights of self-determination.[10] The former provides for some influence (again not clearly defined by international law) upon the organisation and functioning of the state, participation in the exercise of public power (including democratic elections), etc. In accordance with Paragraph 7 of Principle V of the Declaration of Principles (Res. 2625) (i.e. the principle of equal rights and self-determination) , the state is protected against violations of its sovereignty and integrity if it possesses a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Such representation may be limited to just 1 or 2 members of the legislative body (and thus to direct, though limited, participation in the decisionmaking process), but it also may amount to autonomy or even to the creation of a special unit within the federal state. The means of implementation of this principle is left to constitutional regulations and political processes within the state concerned.[11] So internal self-determination relates to the relationship between a people and their own state. One could ask about the extent to which this relationship may be governed by international law, or about whether it is among matters reserved for the exclusive domestic competence of a state. We acknowledge that human rights are no longer reserved to states, but the influence of international law upon fundamental rights regulations under domestic law is still limited.

The latter external self-determination provides for the creation of a new state, or any other form of territorial changes. However, the population should participate in any respective decision-making process, e.g. via plebiscite or referendum. The terminology is not consistent. Either the subjects of external and internal self-determination are different, or the two elements to self-determination are separable. The broader the scope of autonomy, the bigger the threat of decentralising tendencies, especially when the distinctive features of minorities are significant, a trend towards the federalisation of the state occurs, and the central power is left quite feeble.

The distinction between internal and external aspects of self-determination has one important disadvantage. Internal self-determination is possible in the framework of a democratic state system, though we can also imagine authoritarian and oppressive states in which (at least some) minorities were protected (Syria under Al-Assad’s regime, the GDR, etc.). Most states are not democratic, and they do not grant sufficient protection to their minorities. In the light of these facts, it would be hard to ascertain that internal self-determination really constitutes a part of contemporary international law.

In recent years especially, a great deal of attention has been paid to the legal position of so called non-state actors. This notion includes heterogeneous groups of persons, less or more formalised, whose common feature is engagement in certain activities aimed at their obtaining and securing as broad a range of rights as possible, starting from minority rights, and ending with the right to self-determination. In this last case, the separatist (secessionist) activity may be conducted using peaceful means, but in practice, with equal frequency amounts to armed action. In this context, a dispute as to whether a state is protected against attacks by non-state actors from outside or also from internal decentralising forces, plays a special role. This issue has also proved controversial in Polish writings.[12] The alternatives are simple: either separatist processes are reserved to an exclusive domestic competence of the state (with protection against the potential secession provided by the state concerned itself), or the problem assumes international dimensions and then the state is protected also against non-state actors, even if their activities are of an internal nature and are not supported by external subjects.

The issue of the Palestinian state offers an excellent example of problems occurring in the context of non-state actors’ activities, and connected with recognition and issues of international legal personality. The declaration on the creation of the state was proclaimed by the Palestinian National Council on November 15, 1988. It received some international support (at the time the present paper was drafted, Palestinian statehood had been recognised by 82–122 states, depending on sources, including Sweden, Malta and Cyprus), it was admitted into UNESCO (in November 2011), and was granted Observer status at the UN (the UN Charter does not recognise the notion of Observer State, as has been broadly highlighted in relation to Palestine). However, it does not seem that the Palestinian state will be accepted by the international community prior to its being recognised by Israel.

The present author is sceptical about the legal personality of entities other than states, international organs and international organisations, including especially about the legal personality of individuals and formations thereof. We are fully aware that non-state subjects (especially those referred to as national liberation movements fighting for freedom, or as the belligerents; the former being popular in the colonial era, the latter rarely being applied in practice) strive to legitimise their activities, and particularly to put pressure on the state from which they are trying to separate.

However, the only possible reward for these movements is some level of legal protection, especially a granting of prisoner of war status, and hence non-treatment as terrorists. This catch-all is abused nowadays, and it can be recalled that through to the present day no commonly-agreed definition of terrorism has been arrived at (nota bene, the political dispute as to whether to classify specific groups as terrorists or freedom fighters gains new meaning in this context). However, in fact, a recognition by third states will not always be legally relevant. The crucial factor is the recognition by the parent state, against which the given organisation carries on the armed fight. It is obvious that the parent state will not be interested in awarding any rights to these persons. One can even claim that there is a duty on the part of states to counteract separatist movements, given the principle of territorial integrity and the non-existence of any obligation that fighters/terrorists are to be granted protection. We omit here recognition resorted to under pressure from international society.

This remark is of fundamental significance for the assessment of many factual situations connected with secession. It is very rare for separatist trends to emerge suddenly – the situation in Crimea and in eastern Ukraine is from this perspective a very special one (nevertheless, it is highly probably that these conflicts were evoked through Russian support). Ethnic conflicts usually arise over years, and this is how they appear in reality. They should therefore usually be treated as domestic affairs in the meaning of Art. 2 (7), leaving external interference of every kind as out of the question, in relation to both the UN (Security Council, General Assembly, Secretary General), and other states. An exception may be made in favour of the positions of regional organisations, and most especially the ones of which the given state is a member. This can justify an interest on the part of the said organisation in the internal situation of the member state, if it fits within the framework of its competences. Thus, for example, one of the requirements for European Union membership is a democratic form of government and the protection of human rights, hence competent EU organs may pay attention to infringements thereof, and, under certain conditions stipulated in its treaties, may even impose sanctions upon the state responsible for violations In the contemporary practice and doctrine of international law, massive and grave violations of human rights are not treated as situations belonging to state’s exclusive internal competence. On the other hand, however, in situations where the protection of minorities is at stake, states of residence of these minorities – and especially national minorities (belonging to a nation that has its own state, usually located in close proximity or adjacent) may be exposed to scrutiny of that particular minority’s situation.

Since (except in the above situations), it is extremely rare for lawful external interference in the protection of minorities to be faced, interest in conflict appears only when open confrontation arises. In such a situation, the UN may assert that there is a violation of or threat to international peace and security. An example here would be the Security Council’s reaction to events in Yugoslavia in 1992 or in Kosovo in 1999. Even if the Council achieves consent and disseminates its position, determining a conflict as an international one, there is no precluding given states deciding to regard a conflict as internal, and consequently subject to the provision set out in Art. 2 (7) of the UN Charter.[13]

It follows from the above considerations that every state has its inherent right to protect its own territory and territorial integrity, and to non-interference on the part of third states. This conclusion is in contradiction with the declaratory concept of recognition. If the creation of a state is a matter of fact, every newly-created state should be granted protection that is effective erga omnes, including protection in relation to states that do not recognise the new state.[14]

However, at present, this view has been undermined by frequent indications in judicial practice of an obligation falling upon a predecessor state (territorial sovereign) to regain control over separatist territory. In the judgement in the Ilaşcu Case,[15] the European Court of Human Rights stipulated that Moldova could be responsible for violations of the European Convention, since its attempts at affording protection for rights regulated by the Convention in the Transnistria region had not proved sufficiently effective. The fact that Moldova did not exercise direct control over the territory governed by the separatists, did not lead to a conclusion that this territory had effectively seceded. On the contrary, Moldova was deemed to have an ongoing capacity to impact upon the state of human rights in Transnistria. Though the circumstances in which the relevant judgment was delivered were specific, it is hard to neglect it. The argumentation was repeated in the judgment in Catan and Others v. Moldova and Russia.[16] Likewise, the Court adjudicated on jurisdictional issues in the context of a state’s responsibility in the case Assanidze v. Georgia.[17]

3. Does the right to self-determination justify the right to secession?[18]

Self-determination in the internal dimension refers consequently to the whole population of a given state (or inhabitants of a specific territory), and not only to a minority. Its scope is not determined precisely (not actually an exceptional situation in international law, especially in reference to questions which overlap with politics). The greater the importance and scope of “internal” self-determination, the greater the chances that the temptation to secede and creating an own state will grow. This is particularly visible in the context of the protection of minorities. Minorities (at least those which are protected under international law – see Art. 27 of the Civic and Political Rights Covenant of 16 December 1966) strive to increase their entitlements, to the point where this threatens the territorial integrity of a state and leads to inevitable conflict between the right to self-determination and the principle of territorial integrity of a state. Attempts to reconcile these principles notwithstanding, they would seem to be in contradiction with each other. It does not take a clairvoyant to determine that, if states are still the primary subjects of international law, the protection of their territory will prevail over the right to self-determination.

The significance of the principle of territorial integrity as a fundamental principle of international law is thus beyond dispute. In this context, it is somewhat surprising that the conflict between this principle and the right to self-determination has only actually found reflection in the Declaration of principles of international law of October 24, 1970 (Resolution 2625) and in the Declaration of rights of indigenous peoples of 2007. The Declaration states in point 7, Principle V, immediately after the confirmation of the principle of self-determination, that the right thereto cannot be construed as dismembering or impairing the principle of territorial integrity of states, or the political unity, sovereignty and independence of states. This position was repeated in Art. 46 of the 2007 Declaration[19], which goes further than Declaration 2625, in that it prohibits dismemberment of territorial integrity by peoples, groups and individuals. In the course of preparatory work on the Declaration, discussion paid attention to a certain dichotomy of understanding of the interrelated nature of the two principles mentioned: either international law is neutral towards secession, or secession is illegal, despite the rare, quite narrowly-defined exceptions. In the view of the present author, the latter presented approach is right, and exceptions should be construed in a particularly restrictive way. However, this standpoint undermines the creation of Kosovo. It shows that the right to self-determination is not absolute, if Security Council Resolution 1244 dated 10 June 1999 confirmed Serbian sovereignty over Kosovo, though did not prevent the subsequent separation of this province from Serbia.

In international legal writing, attempts have been made to reconcile the principles of territorial integrity and self-determination. We agree with J. Dugard[20] that even if international practice has afforded the right to self-determination the status of peremptory norm, the principle of territorial integrity must be granted the same rank (this is a general rule of every legal order). It is also plausible that the majority of states – in cases of conflict between these two principles – would assign priority to territorial integrity. Polish author J. Tyranowski[21] presented a most interesting approach, observing that inconsistency between these two principles is virtual, if the territorial integrity relates to states, and the right to self-determination to peoples. Nonetheless, this seemingly attractive thesis cannot stand up to criticism, if one notes that the right to self-determination is closely connected with the territory inhabited by the population, and so by the subject of the right.

Even if the right to self-determination has essential meaning for the stipulation of the legal situation of the population of a certain territory, one needs to analyse the relationship of international law towards the secession of part of a state’s territory and, consequently, the creation of the new state. In practice, a question concerning the legality of secession thus arises.

Under classical international law, the creation of a state was a matter of fact.[22] This left it impossible to control from the standpoint of legality. However, this principle has in essence been questioned for a long time now. Spectacular examples of practice are the reaction of the international community to the proclamation of independence by Southern Rhodesia (today’s Zimbabwe) or the so called Bantustans in the Republic of South Africa, the reservation expressed towards an attempt at secession made by Biafra (as a province of Nigeria), or the objection to the establishment of the Turkish Republic of Northern Cyprus.

The two Conventions concerning a state’s succession: in respect of treaties of 1978 and in respect of state property, archives and debts of 1983, indicate that provisions may apply exclusively in situations of secession that accord with international law.

Likewise, the work of the Arbitration Commission of the Conference on Yugoslavia (the Badinter Committee) is interesting. Regardless of any very critical approach taken towards the Commission, it is hard to neglect two elements. Firstly, it made an attempt to prove that the recognition of a state is regulated by certain legal rules, and is not a political element. The ICJ, in its Advisory Opinion on Kosovo, had created the opposite impression by disregarding the issue. Secondly, the standpoint presented by the Commission in relation to the possibility of secession reflected the spirit of contemporary international law, wherein the fundamental role is still played by states, and not by other subjects. This is true, not so much of the possibility of secession by administrative entities (the former Yugoslav Republics), but rather to parts of former republics (Republika Srpska in Bosnia and Herzegovina and the Republic of Serbian Krajina in Croatia). In its opinions, the Badinter Committee indicated differences in the legal situations of peoples entitled to self-determination, and of minorities entitled to autonomy. Consequently, it denied the possibility of these territories seceding from the parent state. It also paid attention to the role of the uti possidetis principle in preserving the existing territorial status quo. This principle has played a great role in recent years, starting from the less-known regional principle in Latin America, then in Africa, and ending up as a general principle of international law. At least, the case law of the ICJ, as well as legal writing, indicates such a development of this principle, though, in our view, in quite an exaggerated way.[23] Nota bene, we agree with J. Dugard[24] that the recognition of Kosovo meant a questioning of uti possidetis as a customary norm.

Thus, we can indicate (and offer our support for the thesis) that contemporary international law probably prohibits, or at least is strongly reluctant about, secession, and does not support separatist movements. This approach has its roots in the will to protect a state against the use of force by an external enemy, but not against disloyalty on the part of own citizens. During the UN Conference in San Francisco, it was possible to observe a strong presumption against secession, to oppose undesirable decentralising tendencies in Europe. This negative standpoint towards secession was strengthened after World War II, as is confirmed by the examples of India and Pakistan or Israel and Palestine. We do not intend to analyse the position of the international community towards secession, concentrating instead upon the position of Russia as one of the main actors involved in the Crimean crisis.

This univocal assessment of secession was undermined by the ICJ in the case of Accordance with international law of the unilateral declaration of independence in respect of Kosovo.[25] Even though the then Tribunal did much to avoid a univocal declaration in regard to the legality of the creation of Kosovo, and particularly its recognition by third states, its Advisory Opinion allows for certain conclusions. What is particularly important in the Opinion is that the ICJ indicates that international law neither prohibits nor supports secession. A prohibition is not to be found in either customary law or international agreements. Thus, the Hague Court referred to the aforementioned traditional view that the creation of a state is a matter of fact, and not of law. However, the ICJ itself weakened its arguments, pointing to the past situations (referred to also herein) in which denial of recognition of separatist entities was connected with the violation of the use of force or other peremptory norms of international law (jus cogens).

In a discussion on the legal significance of the proclamation of independence of Kosovo, including also the proceeding before the ICJ, the motive of a declaration constituting some kind of precedent in international relations appeared repeatedly, even though both states’ opinions and the hearings as such generated a tenet to the effect that the case of Kosovo could not be regarded as a real precedent. This issue requires comment. The notion of precedent in legal terms is connected with court judgments that may bind other courts, or in fact influence their decisions. With reference to Kosovo, one may discuss the declaration of independence or creation of a state as elements of practice as a substrate of international customary law. Statements by states denying the significance of the declaration may in this context be considered elements of opinio juris at most. The creation of the state of Kosovo will constitute an element of practice regardless of the will of states, where this fact is assessed from the standpoint of its significance for international law, whilst opinio juris may also evolve, especially with the changing international situation. Moreover, the determination of the Kosovo case as a precedent has another effect: it suggests that the recognition of a new state would be fully dependent on the political element, something that the international community would be wise to avoid like the plague.

Russia refused consistently to exercise the right to self-determination as long as components of the Russian Federation were at stake. It is enough to mention in this context the judgments of the Russian Constitutional Tribunal in the Tatarstan and Chechnya cases, in which the court pointed to a lack of provisions in the Russian Constitution that would allow for the secession of the respective administrative entities. Such an outcome was obvious. However, one may question if the constitutional prohibition on secession is consistent with the right to self-determination and eventual exercise of this right in the field of international law. From the perspective of the latter, the domestic law amounts to mere facts that cannot influence the international assessment of these phenomena, all the more so given that the Hague Tribunal has case law stressing consistently from the inter-War period onwards, that no one can refer to domestic law (including a Constitution) in order to justify a failure to comply with international obligations.[26] Equally firm was the view expressed by the Minister of Foreign Affairs of the Russian Federation, S. Lavrov, as he discussed the possible secession of Kosovo.[27] He then pointed out that this would constitute a violation of all principles of international law.

The case of Kosovo constituted a turning point in the approach of the Russian Federation to secession. When the RF realised that it could thwart the secession of Kosovo, it enhanced support for separatist movements, in particular in the area of the former Soviet Union and close to its borders. The policy towards Abkhazia or South Ossetia gained new impetus. Politically, the annexation of Crimea would have been more difficult had the Kosovo precedent not come before it.

A doctrine generally unanimous is that secession is eventually permissible if a local population is deprived of rights, and its identity and distinctiveness are seriously endangered. Genocide and other crimes against humanity (e.g. massive ethnic cleansings), as well as grave violations of human rights may be taking place, for example. Secession then becomes a remedy on account of serious persecution. Judicial practice also seems to allow this possibility, even though more as a theoretical solution. The African Commission on Human and Peoples’ Rights, in its Decision 75/92 of October 1995[28] in the case of the Katangese People’s Congress v. Zaire emphasised that the said People’s Congress should be recognised as a national liberation movement, and so was entitled to the right to self-determination. Nevertheless, the exercise of this right should not violate the sovereignty and territorial integrity of Zaire. The Commission did not find evidence that the Katanga people were deprived of the right to participation in the exercise of power, pursuant to Art. 13 (1) of the African Charter. Likewise there was no evidence of violations of human rights. The Supreme Court of Canada in its widely known and quoted opinion dated 20 August 1998, in the case of Quebec independence[29], was also eager to accept the right to secession in three situations: in the colonial context, with respect to oppressed peoples, and when a certain group of population is deprived of participation in the exercise of power, such that it is not permitted to develop in political, economic and social terms. An additional condition is the lack of factual and effective legal means to allow for such rights to be claimed peacefully. The opinion of the Canadian Court is invoked frequently by international lawyers as they seek to justify a thesis that protective secession is possible.[30] However, such an assessment is much exaggerated. Firstly, even if the opinion was influenced by statements made before the court by eminent international lawyers (including J. Crawford, A. Pellet, Th. Franck and M. Shaw), the court is still a domestic agency, not specialised in international law. Secondly, the opinion is anyway negative in character, as it rejects the possibility of secession of Quebec – a fact that markedly diminishes the value of the arguments presented. Thirdly, it is hard to accept the opinion on the secession in the colonial context, in the light of, for example, the declaration of principles of international law. Fourthly, the argument on non-participation in the exercise of power is drawn too broadly. Legal writing usually mentions serious and massive violations of human rights, which amount to crimes against humanity, e.g. ethnic cleansings. Finally, it does not seem likely that in those states where minorities exist, they could gain representation in parliament to the extent that a de facto influence on the exercise of power is possible (for example, it would be hard to claim that the specially-privileged representatives of the German minority in the Polish Sejm have such an influence).

Nevertheless, we have to indicate that, firstly, the opinions of learned authors are not consistent when it comes to the legal nature of persecutions of local populations as a condition for secession; and, secondly – and more importantly – international practice does not confirm the legality of this type of secession. As to the first of these uncertainties, it would seem that, against the literal interpretation of the declaration of principles of international law (Resolution 2625 (XXV) of 1970 which constitutes the interpretation of the UN Charter in terms of principles governing that organisation), it does not suffice to assert that the given population group is deprived of proper and fair political representation. We have already paid attention to the hardships caused by the necessity to determine subjects entitled to the right to self-determination. It seems obvious that, in the Crimea case, we are dealing with a Russian-speaking minority that was not persecuted in any way by the Ukrainian authorities. It was in fact granted much greater autonomy than other parts of Ukraine, including the Donetsk and Luhansk regions. The thesis on the so called remedial secession does not find support in international practice. Except for the dubious example of Bangladesh, there has not been a single case of this type of secession which was recognised by the international community. The independence and statehood of Kosovo, Northern Cyprus, Abkhazia or South Ossetia raise too many doubts, especially because either the persecutions of the local populations were not that serious, or emancipation took place a certain time after repression had ceased, or – finally – the secession took place under the threat or use of force by the third state, with this automatically raising doubts from the standpoint of the consistency of the creation of these new entities with international law.

Another question in need of an answer concerns assessment of the independence referendum organised in Crimea. Some authors have formulated an opinion that its results should be respected as an expression of the will of local population.[31] If so, the secession of the Crimea should be recognised as valid. However, we have to reject this position. The referendum was organised in the circumstances of a Russian military presence in Crimea, and the conditions under which it was conducted were far from democratic. In fact, the event recalled other plebiscites organised by the Soviets in the eastern part of an invaded Poland on 22 October 1939, the aim of which was to justify the annexation of the Polish territories occupied by the Soviet Union in collaboration with Nazi Germany on the basis of the Hitler-Stalin (Ribbentrop-Molotov) Pact. In the case of the Crimean referendum, we have two possible options: either we reject it as null and void, as carried out in the circumstances of a violation of the proscription on the use of military force; or else we keep its results in mind, while not recognising its effect (as unlawful secession). Anyway, none of the acts that followed on from the referendum, including the signing of the incorporation treaty on 18 March 2014, the decision of the Russian Constitutional Court of 19 March 2014 confirming the lawfulness of the said treaty, and its ratification by the Russian and Crimean Parliaments on 20 March 2014, can be (or are) recognised by the international community. And the speed at which these instruments accompanying annexation proceeded will be quoted in all annals of international diplomacy, to say nothing of the Guinness Book of Records.

4. Recognition as the condition for successful secession

The problem of recognition has been the subject of many analyses, and there is no need to discuss these in detail. In the doctrine, we can distinguish two concepts of recognition, i.e. the declarative and the constitutive.[32] After a prolonged period of domination of the declarative concept in the doctrine, the constitutive concept seems now to be more and more prevalent in practice. Probably, its first contemporary example were Guidelines on the Recognition of New States in Eastern Europe and in the Former Soviet Union adopted under the auspices of European Political Cooperation on 16 December 1991, which conditioned the recognition of new states in terms of their fulfilment of certain criteria, particularly as regards a democratic form of government, protection of human rights, observance of demilitarisation agreements and an obligation to settle international disputes by peaceful means only. It is remarkable that this document remained silent as to the fundamental criterion underpinning the existence of the state, i.e. effectiveness of state government (authority). The same approach was reflected by making the recognition of new states dependent on the conformity of the succession with international law, and by the obligation of non-recognition of unlawful situations. Nevertheless, another interesting issue arises. Pursuant to the definition of the Montevideo Convention on rights and duties of states (1933), a state needs to possess territory, a population, state authorities and sovereignty. Any entity lacking any of these elements should not be recognized as a state by third parties. However, as every state is free to take decisions on recognition and does not need to explain them in any way, it is enough that the state is convinced that in its own eyes the new state meets the criteria of statehood. Such a conviction cannot be verified and is not objective in character.

The constitutive approach nevertheless has one weak point. It would make sense if there was an obligation for a given state to be recognised by third states in international law.[33] It seems anyway that recent practice largely supports the constitutive theory.

Although all states are sovereign and equal, some are more sovereign and equal than others. The latter play an important role in recognition processes. The Big Powers (and some other powerful states and international organisations) have a political position that confers enormous significance in the settlement of disputes upon them. Such states use (or sometimes abuse) their position. It is enough to point out that Kosovo and Crimea, and other parts of states, are subjected to political influences from Russian politics (we have already mentioned Abkhazia, Transnistria, etc.). This phenomenon does not limit itself to Russia. For instance, as early as in the first stage of the Yugoslavian conflict, the recognition of Slovenia and Croatia as independent, sovereign republics was enforced by Germany and Austria, even if Croatia especially did not meet the criteria pointed out in the opinions of either the Badinter Committee or the 1991 Guidelines for European Political Cooperation.

Secondly, the universal recognition of a new state created in the process of secession will be assessed from the perspective of the stance of its predecessor. The more important the role the predecessor played in international relations, the less possible it is that remaining states will be able to accept a secession. This rule has its historical roots. For example, the American Declaration of Independence of 1776 did not meet with friendly acceptance on the part of third states, notwithstanding the lack of any cordial relations maintained with Great Britain by France or Spain. Only in February 1778 did France conclude a treaty of alliance with the USA, amounting to recognition. On the other hand, the Peace Treaty done between Great Britain and the USA, as signed in Paris in September 1783, eliminated the main obstacle in the process of recognition of US independence by third states, since the British government stopped treating recognition of the USA as a hostile act. The recognition process nevertheless proceeded slowly, even if the American government made great efforts to gain the recognition of large states, as well as less significant ones like Tuscany.

After the proclamation of independence by the former Spanish provinces in Latin America (12 new states were created in the years 1810–1830), only the US was willing (in March 1822) to recognise new states moderately soon, indicating that new states indeed had a right to claim recognition even if they gained factual independence, and the previous colonial sovereign had no possibility of regaining territorial sovereignty.[34]. Soon afterwards, in December 1824, the United Kingdom recognised these new republics. On the other hand, the rest of the states of the Holy Alliance (Austria, Russia, France and Prussia) withheld recognition of the new states until 1836, when a process of recognition by Spain began. Similar developments could be observed with reference to Brazil, which proclaimed independence in 1822. The USA recognised Brazil as soon as in 1823, while the rest of the Great Powers of the time held off with recognition until August 1825, when Portugal signed a treaty with Brazil, recognising the new state.

The Vienna Congress incorporated Belgium into the Kingdom of The Netherlands. In August 1830, rebellion broke out against the authority of King Wilhelm II of Orange, which in a short time led to a proclamation of independence. During the London Conference convened in January 1831, the Great Powers agreed upon two Protocols defining rules on the gaining of independence and the future existence of the Kingdom of Belgium. The Netherlands, after initial objections, decided to sign a devolution treaty with Belgium on 19 April 1839, and on the same day it signed further agreements with the United Kingdom, Austria, France, Russia and Prussia, concerning the recognition of Belgium.

In practice, the many problems with the recognition of new states mainly arise from their dubious effectiveness. The USA delayed recognition of Syria, Jordan and Lebanon for 3 years, even though the UK, as the mandatory power, recognised them in 1946. Even more major problems appeared with the recognition of Israel, which was recognised by the USA, USSR and several Central European and Latin American states, but not originally by the United Kingdom or France. Modern practice is likewise instructive, e.g. the UN was very cautious about the possibility of recognising secessions if the stance adopted by a predecessor towards it was negative.

International legal authors have also pointed to certain cases of secession in which a predecessor state aimed to avoid separation of part of its territory and population, seeking to pursue policy that discouraged third states from undertaking attempts at recognition. The most common examples of such actions entail the diplomacy of the cheque book (today, we would rather say of the credit card) – in which financial benefits for third states are conditional upon their non-recognition of a new state. Then there is neglect for recognition. Despite the commonly-accepted principle of the sovereign equality of states, it is hard not to smile on hearing of the recognition of Abkhazia by Nauru, Vanuatu and Tuvalu, avoiding any forms of legitimisation, protests, reprisals, etc. The scope of these actions varies. They can be limited to retorsion (Israel, because of the Swedish recognition of Palestine, withdrew its Ambassador from Stockholm in October 2014), but in some circumstances can assume a more serious shape, like for example the Hallstein doctrine.[35].

On the other hand, on a par with recognition, one needs to consider that the obligation of non-recognition of illegal situations[36] is a closely connected matter. This becomes crucial in particular if one presupposes that secession is prohibited by international law. A general statement on the non-recognition of illegal situations was formulated in Art. 41 (2) of the Articles on a state’s international responsibility. However, this does not contain any detailed considerations as to what the legal status of this prohibition is (whether it is either a general principle of law or a customary norm), and especially its content. We may find some general guideline directions in the ICJ Advisory Opinion in the Namibia case,[37], in the case law of other international courts, or in instruments approved and applied by international organisations. Particularly, states should refrain from establishing contractual relations with an unrecognised subject, with this including a prohibition on the concluding of international agreements, on the maintenance and establishment of diplomatic relations, on the admission of non-recognised subjects to international organisations, and on participation in court and arbitrary proceedings with the subject’s involvement. Beyond that, there is an obligation not to establish economic relations, and a prohibition on the recognition of any statutory and administrative regulations and judicial decisions. Examples include Resolutions 252 (1962) and 298 (1971), concerning the territories occupied by Israel, the Declaration of the President of the Security Council of September 21, 1979, calling for non-recognition of travel documents issued by Bantustans, or the Security Council Resolution dated November 18, 1983, indicating the invalidity of the proclamation of the Turkish Republic of Northern Cyprus, and demanding non-recognition of any legal acts aiming at the consolidation of secession by that part of the island. Nevertheless, as the catalogue of these acts proposed in international legal instruments and in doctrine is insufficient, the domestic law of every state will be decisive, since this will provide for detailed solutions.

Conclusions

Does the population of Crimea, in the face of the abovementioned considerations, meet the requirements of subject of the right to self-determination as set out in international law? Undoubtedly, the population with Russian roots constituted the majority of the local population, though other ethnic minorities inhabited Crimea alongside them, including in particular the Tatar minority reborn after Ukraine regained independence. Members of these minorities have the right to express their views on Crimea’s future on the same terms as the population of Russian ethnicity. Equally, it does not seem that the Russian minority in Ukraine (constituting a majority in Crimea) was persecuted in such a way as to leave it entitled to remedial secession. Likewise, the right to self-determination of the whole population of Crimea was not recognised by the international community. There is thus no single element that would justify secession. Furthermore, the sanctions imposed upon Russia on account of its participation in the secessionist process, and ensuing annexation of Crimea, indicate clearly that this annexation has not been deemed lawful.

Abstract: The present paper formulates some introductory remarks on a problem which has been discussed widely in the past, but remains current, as new states appear on the political map of the world. It seems that there are no areas which constitute terra nullius, i.e. are not subject to the jurisdiction of any State. New states can be created either by way of the uniting of already-existing states, or through dismemberment of the existing state, or – as most frequently in recent times – by way of the secession of a part of the territory and population from the predecessor state. Secessionist movements base their claims on the right to self-determination. In that broad context, our intention is to present the international legal background to the Crimean events. While there is an obvious limit to the level of detail achieved, there can certainly be here a full sketching out of many important issues relating to Crimea’s secession and annexation.

Keywords: self-determination, international personality, secession, recognition.

[*] Władysław Czapliński, Professor of International and EU Law, Institute of Law Studies, Polish Academy of Sciences, Warsaw, and Professor of Law at the Warsaw University Centre for Europe.

[1] They will be discussed in several papers in the present volume. See contributions by Tolstykh, Moskalenko, Zadhorozhnii and Amoroso.

[2] ICJ Rep. 1995, p. 102, and 2004, p. 199.

[3] ICJ Rep. 2010, p. 403.

[4] ICJ Rep. 1975, p. 122

[5] R.Y. Jennings, The Approach to Self-Government, Cambridge University Press, Cambridge: 1956, p. 56.

[6] UN GA Resolution 25/2625 of October 24, 1970 Declaration of principles of international law; principle V: Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

[7] J.M. Cobo, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on the Problem of Discrimination against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/Add.4 (1986). See also Declaration dated September 13, 2007, mentioned above, and P. Thornberry, Indigenous Peoples and Human Rights, Manchester University Press, Manchester: 2002.

[8] This definition has roots in a proposal by F. Capotorti, formulated in the course of work of the same Sub-Commission upon the prohibition of discrimination, see also Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4,Sub.2/384.Rev.1 (1977).

[9] This logical conclusion is mentioned by General Comment no. 23 to Art. 27 of the Covenant on Civic and Political Rights, CCPR/C/Rev.1.Add.5 (1994).

[10] Cf. O. Kimminich, P. Thornberry & A. Eide, in: Ch. Tomuschat (ed.), Modern Law of Self-Determination, Springer Netherlands, Dordrecht–Boston–London: 1993, p. 83, 101 and 139, respectively; D. Raič, Statehood and the Law of Self-Determination, Kluwer Law International, The Hague–London–New York: 2002, p. 225ff.

[11] Human Rights Committee, General Comment 12, Art. 1 of the Covenants on Human Rights [1984], http://hrlibrary.umn.edu/gencomm/hrcom12.htm [accessed: 27.09.2017].

[12] See A. Szpak, Secesja państwa w świetle prawa międzynarodowego [Secession of state in the light of international law], 69 PiP 38 (2004), p. 49; R. Kwiecień, Glosa do opinii doradczej Międzynarodowego Trybunału Sprawiedliwości z 22 lipca 2012 r. w sprawie zgodności z prawem międzynarodowym jednostronnej niepodległości Kosowa [Comments on the advisory opinion of the International Court of Justice dated July 22, 2010, on the conformity with international law of the unilateral declaration of independence of Kosovo], 10 Kw.Pr.Pub. 211 (2010), p. 219.

[13] This is what India did in relation to Kosovo, during the 3988th meeting of the Security Council on March 24, 1999.

[14] See also the arbitral award of the German-Polish Mixed Arbitral Tribunal of 1929 in the Deutsch Continental Gas Gesellschaft v. Polish State, ILR, vol. 5, p. 13.

[15] Ilaşcu and others v. Moldova and Russia, application 48787/99, judgment of 8 July 2004.

[16] Judgment of 19 October 2012, applications 43370/05 and 18454/06, respectively. See also in this context considerations of A.A. Cançado-Trindade in the ICJ judgement of 3 February 2015 in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), http://www.icj-cij.org/files/case-related/118/18450.pdf [accessed: 27.09.2017].

[17] Judgment of 8 April 2004, application 71503/01, p. 29ff.; see also: Sargsyan v. Azerbaijan, judgement of December 14, 2011, application 40167/06, p. 15ff.

[18] Among numerous works on secession, we limit ourselves to mentioning just a few, the most important publications of recent years: D. Raič, Statehood and the Law of Self-Determination, Kluwer Law International, The Hague: 2002; M.G. Kohen, Secession: International Law Perspectives, Cambridge University Press, Cambridge: 2006; Ch. Walter, A. von Ungern-Sternberg, K. Abushov, Self-Determination and Secession in International Law, Oxford University Press, Oxford: 2014; J. Dugard, The Secession of States and their Recognition in the Wake of Kosovo, 357 RCADI (2011), p. 13; J. Summers, Peoples and International Law. How Nationalism and Self-Determination Shape a Contemporary Law of Nations, Martinus Nijhoff Publishers, Leiden–Boston: 2007; U. Saxer, Die international Steuerung der Selbstbestimmung und der Staatenentstehung, Springer, Heidelberg–New York–Dordrecht–London: 2010.

[19] Declaration of the UN General Assembly 61/295 dated June 13, 2007.

[20] J. Dugard, supra note 18, p. 75.

[21] J. Tyranowski, Integralność terytorialna, nienaruszalność granic i samostanowienie w prawie międzynarodowym [Territorial Integrity, Inviolability of Frontiers and Self-determination in International Law], PWN, Warszawa–Poznań: 1990, especially at p. 181ff.

[22] See F.L. Oppenheim, International Law, Longmans, Green, London: 1905, p. 264.

[23] Thus far, the principle of uti possidetis has mainly been mentioned on account of the necessity that protection be afforded to the borders between states, which historically formed one state or were subjected to one metropolitan state (as former administrative borders).

[24] J. Dugard, supra note 18, p. 106.

[25] ICJ Rep. 2010, p. 141.

[26] P. Gaeta, The Armed Conflict in Chechnya before the Russian Constitutional Court, 7 Eur. J. Int’l L. 563 (1996), p. 563.

[27] See also Ch. Borgen, Kosovo’s Declaration: Analyzing the Legal Issues of Secession and Recognition, http://opiniojuris.org/2008/02/20/kosovos-declaration-analyzing-the-legal-issues-of-secession-and-recognition/ [accessed: 27.09.2017].

[28] http://www1.umn.edu/humanrts/africa/comcases/75-92.html [accessed: 27.09.2017].

[29] 37 ILM (1998), p. 1340.

[30] See also A. Szpak, supra note 12, p. 43.

[31] See M. Geistlinger, Der Beitritt der Republik Krim zur Russländischen Föderation aus der Warte des Selbstbestimmungsrechts der Völker, 52 Archiv des Völkerrechts 175 (2014), pp. 201–203.

[32] See also the analysis of these notions in: S. Talmon, The Constitutive versus the Declaratory Theory of Recognition. Tertium Non Datur?, 75 BYBIL 101 (2005), p. 101.

[33] The classic commentator on the theory of recognition in international law, H. Lauterpacht, indicated that, because of the non-existence of an organ applying law in international relations, with universally binding force (set against third states), this role is played by the states themselves. They are burdened by the obligation to recognise new states only if these meet the criteria for statehood set out in the Montevideo Convention on the rights and duties of states (December 26, 1933). Otherwise, it may happen that a new entity is considered a state from the perspective of those states which recognise it, and as a de facto regime in relation to others. Such a situation for example applies now in respect of Kosovo. See H. Lauterpacht, Recognition in International Law, Cambridge University Press, Cambridge: 1947, especially pp. 6 and 78.

[34] M. Fabry, Recognizing States: International Society and the Establishment of New States Since 1776, Oxford University Press, Oxford: 2009, p. 55.

[35] This doctrine, formulated in 1955 and maintained until 1969 by successive Christian Democrat governments, entailed non-maintenance by the Federal Republic of Germany of relations with states that recognised the German Democratic Republic.

[36] We have analysed this issue previously – see: W. Czapliński, Między efektywnością a legalizmem. Obowiązek nieuznawania sytuacji nielegalnych w prawie międzynarodowym [Between Effectiveness and Legalism. The Obligation of Non-recognition of Unlawful Stuations in International Law], in: A. Wnukiewicz--Kozłowska (ed.), Aksjologia współczesnego prawa międzynarodowego [Axiology of contemporary international law], Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław: 2011, p. 9; the considerations presented here refer to views formulated in that paper, which we will not repeat. In foreign literature, see especially: S. Talmon, La non-reconnaissance collective des Etats illégaux, Pedone, Paris: 2007; E. Milano, Unlawful Territorial Situations in International Law. Reconciling effectiveness, legality, and legitimacy, Brill–Nijhoff, Leiden–Boston: 2006; idem, The Non-recognition of Russia’s Annexation of Crimea: Three Different Legal Approaches and One Unanswered Question, 1 QIL 35 (2014), p. 37; Th. Christakis, L’obligation de non-reconnaissance des situations créées par le recours illicite à la force ou d’autres actes entreignant des règles fondamentales, in: J.M. Thouvenin, Ch. Tomuschat (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes, Brill–Nijhoff, Leiden–Boston: 2006, p. 127

[37] ICJ Rep. 1971.

The Case of Crimea: Self-Determination and Exercise of the Right to Secession or Annexation?
Oleksandr Zadorozhnii[*]

doi: 10.7366/9014Crimea3

Introduction

The ongoing armed conflict with Ukraine commencing in Crimea in February 2014 is not the first such conflict in Russian post-Soviet history, but its implications are most significant, not just for these two states, but for the international community as a whole. On a practical level, the Russian Federation has in consequence experienced serious problems with its international relations, not least Western sanctions, suspension from the Group of Eight (G8), transformed back into the G7, and exacerbation of the economic crisis domestically. In thus referring to any “remedying of the situation”, one may talk of the necessity (or even the “critical mission”) of seeking to achieve a legal reasoning of Russia’s actions vis-à-vis Crimea under international law.

Indeed, in the above context, Russian political leaders, diplomats, politicians, scholars and publicists have all been invoking the principle of equal rights and the rights of peoples to self-determination. This principle allegedly formed the basis for Crimea to “secede” from Ukraine and, as an independent state, to “accede” to Russia.

On this basis alone, it is obvious that complete international-law-based research into the events of February–March 2014 will not be possible without a thorough discussion of the principle’s modern interpretation with regard to the Crimean case (including such aspects as the existence of a subject entitled to self-determination, the exhaustion of possibilities for “internal self-determination” within Ukraine, the legality of secession as a means of exercising the right to self-determination and the Russian involvement in the secession), as well as the international legal consequences of events back in 1954, international agreements between Russia and Ukraine of the 1990s – 2000s, and cases of the recognition of the self-determination of peoples by means of secession that the international community has already been willing to offer (i.a. involving Kosovo).

The discussion of the above kind engaged in by the author has helped him reach general conclusions as regards the assessment of the 2014 events from the standpoint of rules set out in international law.

1. The principle of equal rights and self-determination of peoples and its modern interpretation in the Crimean case

The said principle is laid down in the International Covenants on Human Rights, 1966 and in the Declaration on Principles of International Law, 1970. It is also envisaged in the (Helsinki) Final Act of the CSCE, 1975, and in a number of other documents as follows: “All peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development”.[1] Self-determination may be exercised through the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people.[2]

An important element of the above principle is the prohibition on its exercise against the territorial integrity of a State. This is enshrined in the principal international instruments providing for the principle of equal rights and self-determination of peoples. The Declaration on the Granting of Independence to Colonial Countries and Peoples 1960 states that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.[3]

The Declaration on Principles of International Law 1970 in turn provides as follows: “Nothing in the foregoing paragraphs shall 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 conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country”.[4] The same provision is laid down by the Charter of Paris for a New Europe 1990, by the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993, etc.

The above interpretation of this principle has gained universal recognition. The UN Commission on Human Rights does not recognise the right to disrupt the territorial integrity of a state by means of secession therefrom. The same position is voiced by other international organs and states, and by most of the publicists in different nations.[5]

At the same time, an independent evaluation of the events in Crimea from the viewpoint of international law requires a detailed analysis of the modern interpretation of the main aspects of the principle of equal rights and the self-determination of peoples. Only such an analysis can permit any determination as to whether the actions of the Crimean “authorities” and that of Russia are compatible with the rules international law, as governing the principle of equal rights and the self-determination of peoples. Only when all the conditions required by international law are fulfilled may one consider Crimea’s seceding from Ukraine and its further accession into Russia lawful.

1.1. Existence of a subject entitled to self-determination

Analysis of all principal international instruments on self-determination shows that this right is granted to a people or nation, i.e. to a rather large and integrated community. The UNESCO International Meeting of Experts on further study of the concept of the rights of peoples in 1989 delivered a detailed description of a “people”. It was decided, that a people is a group of individual human beings who enjoy some or all of the following common features: (a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f) territorial connection; and (g) common economic life. Moreover, “the group must be of a certain number which need not be large… but which must be more than a mere association of individuals within a State”; the group as a whole must have “the will to be identified as a people or the consciousness of being a people…”; and “the group must have institutions or other means of expressing its common characteristics and will for identity”.[6]

This means self-identification, a significant number and a dominant status in the existing State in which that group is incorporated. It is noteworthy that the difference between the legal terms “people” and “indigenous people” and “national minority” lies primarily in the fact that a people have a dominant status in the existing State and constitute a majority.

The UN Subcommission on Prevention of Discrimination and Protection of Minorities stressed that “indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society […]. A national minority constitutes a group of a small number within the State’s population, with its ethnical, language, cultural or religious patterns differentiating it from the society now prevailing in that State, and forms a non-dominant sector in that State”.[7]

Importantly, such interpretation entitles peoples to “internal self-determination”, namely within the existing State, as well as “external” self-determination by means of secession, while indigenous peoples are entitled only to the “internal” form. The same interpretation is provided in the Arbitration Commission of the Conference on Yugoslavia Opinion No. 2 relevant to the Serbian population in Bosnia and Herzegovina 1992,[8] and is also envisaged in the Framework Convention for the Protection of National Minorities, 1995,[9] the UN Declaration on the Rights of Indigenous Peoples, 2007,[10] PACE Resolution 832 (2011) of 4 October 2011[11] and other international legal instruments.

Together with Ukrainians, there are 3 more peoples living and having their origins in Ukraine, namely Crimean Tatars, Karaites and Krymchaks.[12] The Verkhovna Rada (unicameral parliament) of Ukraine adopted the Resolution “On the Statement of the Verkhovna Rada of Ukraine reguarantees of rights of the Crimean Tatar people as a part of the State of Ukraine”. This states, that Ukraine, i.a., guarantees protection and implementation of an indefeasible right to self-determination of the Crimean Tatar people as a part of the sovereign and independent state of Ukraine, as well as declaring its devotion to the principles of the UN Declaration on the Rights of Indigenous Peoples.[13]

Russians, including those living in Crimea, are in turn regarded as a national minority on the territory of Ukraine. The relationship between the rights of minorities and self-determination was expressed by Polish scholar M. Perkowski as follows: “In the doctrine as a whole minorities are denied the right to self-determination, as stressed in the reports of the Special Rapporteur of the Subcommission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights. States’ practice relating to minorities does not give any grounds to consider them subjects to the right of self-determination. In fact it is the opposite – States, when framing the legal regime for people’s self-determination provided for the special regulations on minorities, providing for individual rights only”.[14]

It can further be noted that, in the case of Crimea, the Russian side avoids stating directly to which people the phrase self-determination of the Crimean people is referred to. If it is the Russian people that are in question, then as a national minority under international law they do not possess the right to self-determination. If “the Crimean people exercising a right to self-determination” actually means the population of Crimea as a whole (and this is indeed how “peoples of Crimea” and “population of Crimea” may be interpreted), then that in turn denotes that every subject of the Russian Federation (administrative territory, administrative region, republic) is also populated by a separate people entitled to secede. However, the Constitution of the Russian Federation of 1993 prohibits secession, and this provision was in fact upheld subsequently by the Constitutional Court of the Russian Federation in its decision dated 7 June 2000 No 10-P (№10-П).[15] Why should the opposite apply with respect to Ukraine?

1.2. Exhaustion of the possibilities for “internal self-determination”

Given the end of the decolonisation epoch, “internal self-determination” within a state becomes recognised as more applicable. Many experts argue that, in accordance with international law and the practice established by States, the right to “external self-determination” is applicable only with respect to peoples in colonial or other foreign domination, or under foreign occupation. Other peoples shall exercise their right to self-determination within the State.

The rule of “internal self-determination” may be formed on the basis of the 1970 Declaration.[16] D. Thürer and T. Burri are right in their statement that, despite the Declaration having been adopted during the decolonisation period, it should not be limited to this context.[17] In 1996, the UN Committee on the Elimination of Racial Discrimination adopted a recommendation whereby it expressly stated differences between “internal” and “external” self-determination, while determining the former as the “right of every citizen to take part in the conduct of public affairs at any level”.[18] In 1998, the Supreme Court of Canada – as it considered the Quebec case – provided a definition of “internal self-determination” as “a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state”.[19]

A. Cassese has formulated an idea of “political self-determination” that, to his mind, corresponds to the modern reality.[20] M. Kohen considers internal self-determination particularly important in the European region, given that it has in practice been proffered as a possible solution to recent secessionist conflicts that would permit the accommodation of secessionist aspirations while at the same time maintaining territorial integrity.[21] Russian legal scholar M. Yavkin has summarised the argument given in different teachings, namely Russian ones, and states: “It becomes more widely recognized that from the practical point ‘internal’ self-determination should be chosen over ‘external’ one. Democratic institutes and mechanisms of group representation (federalization, autonomy) are to be built allowing all members of the society to participate effectively in governing and distributing resources while maintaining territorial integrity”.[22]

Indeed, “internal self-determination” provides for emphasis being placed on the democratic governance mechanisms within the nation state, on the right “to have a real influence” on the internal policy of a State,[23] to participate in the decision making process on the national level, and on cultural, linguistic, religious or political (territorial) autonomy within an existing state.[24]

Crimea is known for its always having had a special status among other administrative and territorial units of Ukraine. Indeed, the Constitution of Ukraine grants it a status as an Autonomous Republic. The separate Chapter of the Constitution relating to the AR of Crimea provides for the Verkhovna Rada as a representative body, for the Council of Ministers as a government of the ARC, and for a Constitution of the ARC. Subject to Article 138 of the Constitution of Ukraine, the Republic has competence over a number of matters vital to the Peninsula.[25]

Thus, Crimea is granted broad autonomy within Ukraine that is totally compatible with the international legal concept of “internal self-determination”. At the same time, these provisions in no way exclude the possibility of discussions on the alteration of such a status being held, particularly as regards the broadening of the Crimean authorities’ competence. There are no grounds for claiming that such possibilities have been exhausted. However, any such changes may be made solely within the framework of the Constitution of Ukraine and other relevant acts, as well as in accordance with international law.

Notably, even when expressing its position on Crimea, Russia recognises: “In their practice states have reached a consensus that self-determination of peoples shall take place, as a rule, within the existing states, in particular by means of autonomy”.[26]

1.3. Legality of secession as a means of exercising the right to self-determination

When the International Court of Justice was considering the Kosovo case in 2009-2010, even those arguing in favour of secession considered this potential event an exception to the general principle of territorial integrity.[27] The Russian Federation at that time (as now) was strongly against secession.[28]

Denial of the right to secession is typical for most publicists around the world,[29] and states’ practice is the same.[30] Some scientists, e.g. Ved Nanda, argue that “secession status is not determined, since it is neither permitted, nor prohibited by international law”.[31] The ICJ did not settle the matter, since, in the case mentioned above, it declared that the Kosovo declaration of independence does not violate international law, given that the latter does not prohibit the issuing of such acts.[32] However, such a “lack of determination” according to scholars is due solely to declarations, because they do not automatically grant independence, being only the first step, the legality of which must be recognised by the international community.[33] Thus, J. Vidmar notes that a formation may become a state in the end, but only when the state from which the formation desires to secede does not object on the basis of the principle of territorial integrity, or when such objections are ignored by the international community.[34]

On some occasions, scholars note that, given the developments in Kosovo and East Timor, and the judgment of the Supreme Court of Canada on Quebec, recognition of the legality of secession may take place in exceptional circumstances. These are liberation from colonial dependency, from “unlawful military occupation of a territory”;[35] the existence in a State of non-democratic authoritarian regimes that commit gross and systematic violations of human rights;[36] the existence of a distinct, self-defined group within a state that overwhelmingly supports separatism; a legitimate claim to the territory; the central government’s rejection of compromise solutions; the prospect of the territory and people concerned becoming a viable state; the effect of granting or refusing self-determination on regional and international peace; and the effectuation of authoritative governmental processes and respect for human rights.[37] At the same time, recognition of secession may take place only when every one of the conditions mentioned applicable to the particular case is fulfilled.

The same approach is recognised by the Russian Federation itself, even with respect to Crimea. At the same time, it invokes threats to the peninsular population deriving from “the central government of Ukraine”, “nationalists”, “fascists”, “radicals”, etc.[38] However, these claims were never proven to have any foundation in fact, and an exact statement on this point was provided by the Parliamentary Assembly of the Council of Europe in its Resolution dated 9 April 2014, which reads: “None of the arguments used by the Russian Federation to justify its actions hold true to facts and evidence. There was no ultra-right wing takeover of the central government in Kyiv, nor was there any imminent threat to the rights of the ethnic Russian minority in the country, including, or especially, in the Crimea. Given that neither secessionism, nor integration with the Russian Federation, was prevalent on the political agenda of the Crimean population, or widely supported, prior to Russian military intervention, the Assembly considers that the drive for secession and integration into the Russian Federation was instigated and incited by the Russian authorities, under the cover of a military intervention” (p. 15).[39]

However, given the impossibility of proving the alleged Ukrainian authorities’ “violence” against the Crimean population, Russia gave other arguments as well. On 14 March 2014, just before the annexation was carried out, Minister of Foreign Affairs S. Lavrov stated: “Everyone understands, and I take the responsibility to voice it, that Crimea is much more important to Russia than the Comoros to France and The Falkland Islands to Great Britain. I hope they (Western partners) realise, that the Crimea is not a case to be considered out of its historical context. The recognised lack of any serious violations of law in the Crimea is due exactly to the additional measures taken and to the determination of self-defence militias to prevent Maidan from happening again; and there is still a tented camp on Maidan in Kyiv, by the way”.[40] Let us recall that in the Kosovo case, Russia stated the opposite, referring to the rules of international law: “A right to self-determination by means of secession arises only in the most extreme cases, such as military attack of a state that threatens the existence of the people” (para. 88 of the Written Statement dated 16 April 2009 by the Russian Federation addressed to the ICJ.[41] Is the “historical context” in a position to defy rules of international law? Can the military aggression, occupation and annexation of part of some other state’s territory be justified due to its “importance” to the aggressor?

Lack of sense in its arguments regarding the Ukrainian authorities’ constant violations of human rights in Crimea forced Russia to develop new “arguments”, namely that “the people of Crimea were excluded from the national political communication after the Ukrainian government was changed by means of a coup d’état in February 2014”; that “there was an overthrow of President Yanukovych the Crimean population voted for”; that “the will of the Crimean people is ignored when adopting political decisions”; that “members of the Party of Regions are being harassed”, etc. The meaning of the territorial integrity clause envisaged in the Declaration on Principles of International Law 1970 is being misinterpreted, and it is thus claimed that the principle of territorial integrity has no application to Ukraine, since the latter allegedly “does not comply with the principle of equal rights and self-determination of peoples, and its government does not represent all peoples living on its territory, namely the people of the Crimea”.

Such statements do not correspond with the real facts. In the first place, after Yanukovych and the opposition signed an agreement of 21 February 2014,[42] mediated i.a. by Russian representative Lukin, Ukraine’s former President fled the country, having refused to comply with the agreement and discharge the functions of President. The then Prime Minister M. Azarov, other ministers and people close to Yanukovych did the same. Thus, there were no grounds to invoke a coup d’état.

In the second place, the support of the majority of nationals living in Crimea and participating in the 2010 presidential elections for Yanukovych may not be reckoned evidence of “the Crimean population being excluded from the national communication”. No member of the Ukrainian Parliament, elected by the majority-vote system in 2012, or representative of a party voted for in Crimea (the Party of Regions and the Communist Party) was excluded, and this Parliament went on representing the people of Ukraine, including its Crimean part. Pursuant to Article 75 of the Constitution of Ukraine, the Verkhovna Rada is the only organ of legislative power; representing the people as a whole.[43]

In the third place, neither the institution of criminal proceedings against certain members of political parties, nor fights in the Verkhovna Rada with MPs leaving certain political factions may be interpreted as the “excluding from national communication” of the population of a region. It makes no difference that the government was constituted by the representatives of only two parliamentary parties, given that that was the Verkhovna Rada the people of Ukraine voted for, and those MPs may have been representatives of virtually any party.

In the fourth place, there are no grounds to claim the violation of collective rights of Crimeans, given that the Peninsula is the only Autonomous Republic in Ukraine and, as already mentioned, is represented in the Verkhovna Rada by MPs who have been successful in promoting their legislative initiatives.

It should be noted that the meaning of the clause laid down in the 1970 Declaration emphasises territorial integrity. Moreover, the representation of a people is related to “race, religion or colour”.

Consequently, the factual background offers evidence for a lack of any events in Crimea that would sustain a recognition of the legality of secession in the aforementioned exceptional circumstances. It would be impossible to find a requirement fulfilled during the Crimean events of 2014 on even the longest possible list of criteria deemed to legalise secession in the light of modern international law[44] (i.e. the existence of a separate, determined and independent group within a state which predominantly supports secession; legal claims by that group to an appropriate territory; systematic discrimination and exploitation against this group; the rejection of compromises by the central government; the clear prospect of the future state’s viability; the likely positive influence of independence on regional and international peace; and the conduct of democratic procedures in the course of secession with due respect for human rights).

Indeed, the actual situation is contrary to all of that, as the Crimean population had no legal grounds for secession; there was no discrimination or exploitation deployed against the Crimean ethnic groups from Ukraine; nothing can be said about the central government’s rejection of compromises, because the self-proclaimed, Russian-controlled authorities of the Peninsula avoided any contacts; and absolutely nothing is to be said about the viability of the “Republic of the Crimea” because this “state” was annexed by Russia in the course of a few days. Furthermore, and also critically, the events on the Peninsula had an extremely negative influence on international peace and security, while no democratic procedures were applied to the secession and no respect for human rights shown.

1.4. Involvement of another state in secession in the exercise of the right to self-determination

In determining the legality of actions taken for “external self-determination” it is important to consider its final aim: independence and exercise of the right to determine status or to integrate with a third state, which corresponds to the aspiration of the latter to expand its influence.

The general international legal approach to the issue of another state’s involvement provides, that while there is neither permission for nor prohibition of secession, there are exceptions enshrined in the basic principles of international law.[45] Interference of any other state in any case violates these, and most especially the principles of territorial integrity and the inviolability of national borders.

States’ practices provide for the same conclusion. The European Union Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 1991, states that recognition may take place, i.a., with due respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki, 1975 and in the Charter of Paris, 1990; respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; and commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning state succession and regional disputes.[46]

In Crimea in 2014 those provisions were violated. There were no attempts to have a dialogue with the Ukrainian government, and no one to speak for leaving Crimea as part of Ukraine, even though there were neither constant violations by the Ukrainian government of the rights of the Crimean population, nor exhaustion of possibilities for «internal self-determination». The Declaration of Independence of the Republic of Crimea dated 11 March 2014, as it itself stated, was only the preliminary step to accession to Russia. This Declaration provides the following: “The Republic of Crimea as a sovereign and independent state subject to the appropriate results of the referendum of 16 March will address the Russian Federation with a request for accession of the Republic of Crimea on the basis of an international agreement in the Russian Federation as a new subject of the Russian Federation”.[47] Thus, there were also no possibilities for Crimea to exist as an independent state.

In April 2014, V.V. Putin expressly recognised the involvement of Russian armed forces in “the process of self-determination of the Crimean people”[48]. Furthermore, the actions of Russian servicemen aimed at forcing deputies of the Crimean Parliament to vote for decisions to declare independence were acknowledged by famous representative of the Russian special services I. Girkin;[49] “the Crimean self-defense” spoken of constantly by the Russian authorities was equipped with new uniforms and arms by the Russian Army, and its members on many occasions admitted that they were Russian service personnel.

Notably, on 26 February 2015, Putin signed a decree “On the Special Operations Forces Day” to be celebrated in honour of this unit of Russia’s Armed Forces. The official publication of the government Rossyskaya Gazeta had an article devoted to this event stating: “Why would 27 February be chosen to celebrate the Special Operations Forces Day despite SOF having been formed on another day? Remember where and what was happening a year ago. And what it ended with”.[50] Let us recall that the night of 27 February 2014 was the night on which armed people subsequently calling themselves the ‘self-defense of the Russian people’ took over the House of the Crimean Parliament and later forced and controlled ‘adoption’ of the notorious decisions to ‘secede’ from Ukraine.

In October 2014 another article in the same newspaper stated expressly that, in March 2014, Russian forces had seized airports and other strategic objects in Crimea. In September, Russian Minister of Defence S. Shoygu, as he awarded the Order of Suvorov to servicemen of the 76th Airborne Division, expressed his gratitude to the troops for ‘the operation of returning the Crimea to Russia’.[51] For now, while being proud of this operation, Russia is still ‘ashamed’ to acknowledge directly its forceful annexation of the Peninsula. However, such open recognition may arise in the future.

It is noteworthy that, together with many other circumstances referred to during the preceding year, the refusal of the self-declared Crimean authorities to consider any other possibilities strongly suggests that adoption of ‘the Declaration’ and holding of ‘the referendum’ were necessary only for Russia to attempt (if in fact actually failing) to provide legal grounds for its actions.[52]

There are no grounds for Russian authorities to claim that Crimean events developed via the two steps of: 1) secession and emergence of the Republic of Crimea, and 2) expectance and accession of this new state to the Russian Federation. The lack of mere intention to exercise state sovereignty by ‘The Republic of Crimea’ is evident from the provisions of the ‘Declaration of Independence’ of 11 March 2014, from the unbelievably short period of time before the Russian Parliament adopted its decisions to annex the Peninsula and the ‘Agreement on the Accession of the Republic of Crimea to the Russian Federation’ was signed on 18 March 2014 (all the decisions were adopted simultaneously), as well as from the actions of foreign (Russian) armed forces having had the self-declared authorities under control.

C. Walter in this context recalls the Aland Islands case, in which it was stressed that, in order to be recognised as independent, a formation is to have a “stable political organization” as well as be “strong enough to exercise power on its territory without involvement of foreign forces”.[53] Summarising teachings and states’ practice in the field, Russian scholar Ye. Kholina laid down the conditions for a state to be recognised as follows: 1) real organisation of a legitimate political authority capable of governing the situation in the State; 2) respect for and maintenance of human rights and freedoms, non-discrimination of minorities; 3) compliance with the principles of peaceful settlement of disputes, non-threat and non-use of force, with the formation of a new state not violating the right of other states to territorial integrity, independence etc.; 4) economic independence; 5) capability to engage in relations with other states and to comply with international obligations taken on.[54] “The Republic of Crimea” failed to comply with the conditions above even for one day and, given the circumstances described, could not in fact have complied with them.

Thus, in accordance with the rules of international law, the involvement of Russia in the process of “self-determination of the Crimean people” makes the latter unlawful. Moreover, the above events from the viewpoint of international law have nothing to do with self-determination: forceful seizure of the peninsula by Russia took place, namely annexation.

2. Transfer of Crimea to Ukraine in 1954 and its international legal consequences

Russian officials often stress that events of 1954 were contrary to the constitutional law of the USSR and have no legal consequences. In this regard it is first worth noting the tragic historical background to the 1954 events. The deportation of Crimean Tatars and some 25,000 people by the Soviet authorities in 1944 was conducted in inhumane conditions and resulted in numerous deaths either due to killings of those who tried to oppose or due to starvation and diseases en route or following resettlement.[55] These crimes also gave rise to economic chaos in the region, and hence to a necessity for that to be sorted out.[56] A solution was arrived at in 1954, when the whole Soviet Union was celebrating the 300th anniversary of the Pereyaslav Agreement. The transfer of what was then the Crimea to the Ukrainian SSR became the climax of the celebrations as the “testimony of the time-honoured friendship of the two peoples”.[57]

On 25 January 1954, Protocol No. 49 “On the transfer of the Crimean region from the RSFSR to the Ukrainian SSR” was adopted by the Praesidium of the Central Committee of the Communist Party of the USSR. On 5 February 1954 the Council of Ministers of the RSFSR adopted the Resolution “On the transfer of the Crimean region from the RSFSR to the Ukrainian SSR” wherein the transfer was recognised as desirable. The Supreme Council of the RSFSR was requested to study the issue and submit an appropriate Resolution to the Supreme Council of the Soviet Union.[58] On 13 February 1954, the Praesidium of the SC of the RSFSR issued a decree which was to “request the Presidium of the SC of the Union of SSR to transfer the Crimean region from the Russian SFSR to the Ukrainian SSR”.[59]

On 19 February 1954 the Praesidium of the Supreme Council of the USSR adopted the Resolution to transfer the Crimean region to the Ukrainian SSR.[60] On 26 April 1954 the Decree of the Praesidium of the SC of the USSR of 19 February 1954 was enacted as law[61] with relevant amendments made to Articles 22 and 23 of the USSR’s Constitution. On 28 April 1954 the legislative act was promulgated in central newspapers. On 2 June 1954 during the earliest session of the RSFSR’s Supreme Council, delegates voted to bring the Russian Constitution in line with that of the Soviet Union.[62]

In V. Putin’s “Crimean speech” of 18 March 2014, the denial of the legality of the transfer of 1954 is worded in the following way: “…In 1954 there was a decision to transfer the Crimean region to it, although at that time the Crimea was administered from the Union center. It was a personal initiative of Khrushchev, Head of the Communist Party of the USSR. It is a task for historians to clarify his motives, whether he wanted to gain support of the nomenklatura or make amends for his personal guilt in organizing mass repressions in Ukraine in the 1930s. What is important for us is the fact that this decision was adopted in violation of constitutional rules in force even at that time. The issue was decided behind the scenes at a hobnob. Of course, in the circumstances of a totalitarian state, the inhabitants of the Crimea and Sevastopol were asked nothing. They were simply confronted with a fait accompli. Of course, even then people had questions as to why the Crimea should have become Ukraine all of a sudden. But generally speaking, let’s say it openly; we all understand that, generally speaking, that decision was regarded as a mere formality, because the territory was transferred within country”.[63]

However, any such allegations that the transfer of the Crimean Peninsula to the Ukrainian SSR was conducted in breach of the constitutional law of the USSR appear to be baseless in the light of study of the legal procedures followed in 1954, and the sequence of the events described above. Firstly, any closed-door deal or, in Putin’s own words’ “hobnob”, based on “Khrushchev’s autocratic decision” are precluded: the Praesidium of the SC of the Communist Party of the USSR was acting collectively in starting the process, while it held the supreme position among Soviet authorities under the Constitutions of the USSR and the individual Soviet Socialist Republics, as well as established practice. No “Khrushchev’s personal decision” ever existed, with the meeting of the Praesidium of the Supreme Council of the USSR making the decision on 12 February 1954 attended by 23 of 33 members[64] (the allegations regarding 13 out of 27 are fake, spread through the Russian mass media specially, with a view to foreign audiences being misinformed).[65] The transfer was upheld by the RSFSR. Its Supreme Council was unanimous in excluding the Crimean region from the list of its constituent territories. Under Art. 22 of the Constitution of the RSFSR, the Supreme Council was the highest body of the Republic at the time. Therefore, any allegations of procedural violations are meaningless.

The attempts made by Putin and others to find any particular meaning in the absence of a referendum are just as futile. Before 1991, not a single referendum was held in the USSR. Indeed, besides a mention in Article 33 that the Praesidium of the Supreme Council might hold referenda, the Constitution of the RSFSR lacked any rules in this area. Throughout the period of the USSR’s existence, all of its borders, including those of Russia, were redrawn without referenda, with none of these similar decisions ever being challenged by Russia or other post-Soviet states.

Secondly, apropos Sevastopol, the status of the Union subordination only meant better supply of goods to the inhabitants, and the direct administration of enterprises and institutions within the city. Sochi was another such city. In practice, legislation of the Union was supplemented by that of the relevant Soviet Republic. Thus, the codes of law of the Ukrainian SSR were applied in Sevastopol.

Thirdly, the true reasons for the decision of 1954 were obviously economic and administrative in nature. It was Ukraine that had to solve all problems caused by the 1944 decision, covering all losses from its budget.[66] The political reason for the decision of 1954 was the necessity to show the political unity of Ukraine and Russia.

Legislation of the Russian Federation (to say nothing of international law) offers no authorisation for its authorities to determine whether the 1954 transfer of the Peninsula was in accordance with the Constitution and legislation of the Soviet Union; or to act upon any such determination. The same is true of evaluations of the (non-) constitutionality of actions taken by the Soviet authorities, by senior officials of the administration of the Russian Federation, its politicians and scholars. It goes without saying that such evaluations have no legal consequences.

It is well known that the disintegration of the USSR gained legal documentation in a series of agreements (e.g. the Belovezha Accord of 8 December 1991).[67] And these agreements have international legal consequences, unlike the current speculations of Russian politicians and scholars. The existing borders between the post-Soviet republics were recognised as state borders in line with the uti possidetis approach enshrined in Art. 5 of the Accord, and in the Alma-Ata Declaration of 21 December.[68] Those who claim that the transfer of Crimea to Ukraine in 1954 had no international legal consequences tend to disregard the plain provision of Art. 2 of the Russian Act “On the State Border of the Russian Federation” of 5 April 1993 – that the state border of the Russian Federation shall be the border of the RSFSR as established by relevant treaties in force and legislative acts of the former USSR[69]. This denotes that such consequences were recognised directly in the law of the Russian Federation.

3. International agreements between Russia and Ukraine of the 1990s–2000s

Russia’s obligations to Ukraine as regards respect for the borders between the two countries are set out in the Inter-Republican Agreement on Cooperation of 1990,[70] the recitals and Art. 2 of the Treaty on Amity, Cooperation and Partnership between Ukraine and the Russian Federation of 1997 (“The Big Treaty”),[71] and in Articles 1 and 2 of the 2003 Treaty between Ukraine and Russia on the State Border.[72]

These and other agreements (including the treaties for the deployment of the Russian Black Sea Fleet on Ukrainian territory)[73] were based upon the principles of the territorial integrity of Ukraine and the inviolability of its borders, and upon the fact that the Peninsula belonged to Ukraine. Russia’s obligation to respect the existing borders of Ukraine is also envisaged directly in Art. 1 of the Budapest Memorandum of 1994.[74]

As for the contents of the norms arising out of Art. 2 of the Treaty on Amity, Cooperation and Partnership between Ukraine and the Russian Federation of 1997, the High Contracting Parties in accordance with the provisions of the Charter of the United Nations and obligations under the Final Act of the Conference on Security and Cooperation in Europe respect each other’s territorial integrity and reaffirm the inviolability of their borders.[75]

In regard to the 2003 Treaty between Ukraine and Russia on the State Border, it is necessary to stress that Art. 1 defines the “state border” or “boundary” as the border between the tripoint of Russia, Ukraine, and Belarus and “a point located on the shore of the Gulf of Taganrog.” Art. 2 incorporated, as “an integral part” of the Treaty, an Appendix describing the State border in text (Appendix 1) and a cartographic appendix illustrating the border on maps (Appendix 2). Article 5 identifies the Sea of Azov and Kerch Strait as “inland waters between the two States.” That denotes that the Crimean Peninsula is recognised as an integral part of Ukraine.[76]

The 1997 Treaties for the deployment of the Russian Black Sea Fleet on Ukraine’s territory, as well as the 2010 Kharkiv Agreement, were concluded on the basis of the evident fact that the Crimean Peninsula (to which the Russian Fleet continued to be deployed) was the territory of Ukraine.[77]

The Russian Federation also recognised Ukraine’s sovereignty over the Peninsula in numerous treaties, negotiations, summits and meetings of the UN Security Council at which such questions were raised through the 1991–2014 period. Russia never challenged the above status of Crimea using any relevant international mechanism. Furthermore, the texts of the Russian-Ukrainian Agreements of 1990–2003 clearly refute V. Putin’s allegations that Crimea was recognised as Ukrainian territory as a part of Russia’s consent to the delimitation of borders.

Even provocative decisions by the Russian State Duma of 1992–1996[78] were based on the fact that Crimea was Ukrainian. After the ratification of the 1997 “Big Treaty” by the Russian Parliament, the loss of legal grounds for claims on the Peninsula was recognised by even the fiercest nationalists among MPs.[79]

The assertion “peaceful annexation of Crimea by Ukraine” post 1991, expressed by many Russian politicians and scholars, is an oxymoron: under international law, an annexation by definition means violent seizure of territory. It cannot be peaceful. Besides, they disregard the legal meaning of the principles of the territorial integrity of states, inviolability of borders, equality and self-determination of peoples as well as Russia’s explicit recognition of Ukraine’s sovereignty over Crimea. Ukraine never annexed Crimea either in 1991 or in any other year: the Peninsula continued to be part of Ukraine’s territory just as before the collapse of the Soviet Union. And this was recognised by Russia in international agreements.

No wonder that those who claim “Ukraine’s annexation of the Crimea was done under certain treaty clauses, in particular on the deployment of the Russian Black Sea Fleet in the Crimea” never exactly refer to particular clauses of this type (it is hard to find non-existent rules). Furthermore, in 2014 the Russian Black Sea Fleet continued in Crimea, and no actions to “expel” it were undertaken, allegedly leading to the end of Russia’s recognition of the Ukrainian status of Crimea.

One of the important issues is the legal nature of the Budapest Memorandum on Security Assurances of 1994 (the Memorandum on Security Assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons). The Memorandum was signed after several years of intense negotiations in the circumstances of Russia’s provocative policy directed at destabilising the situation on the Crimean Peninsula. and the constant threat to Ukraine’s national security posed by Russia.[80] Ukraine’s relinquishment of its nuclear weapons through joining the Protocol on Strategic Offensive Reductions between the USA and the USSR of 1991 and the Treaty on the Non-Proliferation of Nuclear Weapons of 1968 was thus linked inextricably with security assurances to be granted by the leading world powers. These assurances would advance the general progress of the cause of nuclear disarmament, while as such supposedly being designed to protect Ukraine from Russia’s aggressive actions.

The Budapest Memorandum reflected all these processes and was a unique international instrument in the sphere of nuclear disarmament. It enshrined legal obligations on the part of nuclear weapon states (the USA, United Kingdom, Russia and China) with regard to Ukraine’s national security, territorial integrity and inviolability of borders, in accordance with the generally recognised principles of international law. Enshrining these provisions in an instrument which was not “a political document of declaratory nature” was a sine qua non of Ukraine’s consent to renounce its nuclear weapons, given the danger originating from Russia. Concluding a “declaratory” and “political” Memorandum without any legally binding obligations made no sense to Ukraine. The instrument became a key element in the general process of nuclear disarmament, the disruption of which would have caused other states to leave the process for obvious reasons and, moreover, go ahead with their nuclear weapons programmes.

Apropos the legally binding force of the Budapest Memorandum, it is a treaty because it meets all the criteria of a treaty as envisaged in the Vienna Convention on the Law of Treaties of 1969, in that it is “an international agreement concluded between States in written form and governed by international law”.[81] By its actions in 2013–2015, Russia violated almost all of its obligations under the Budapest Memorandum, except for the obligation to seek immediate actions by the UN SC in the event of Ukraine’s becoming victim of aggression or threatened aggression with the use of nuclear weapons. as well as the obligation to abstain from using nuclear weapons against the state:

– “in accordance with the principles of the Final Act of the Conference on Security and Cooperation in Europe, to respect the independence and sovereignty and the existing borders of Ukraine” (para 1). Russia’s MFA states: “All actions were conducted by Russia in strict compliance with the Final Act of the CSCE… The Budapest Memorandum does not oblige Russia to compel the Crimea to remain in Ukraine”.[82] This statement was manipulative ab initio, and subsequently V. Putin himself refuted it in some of his speeches and finally – in more detail – in the film “Crimea. The Way Home” (March 2015) by telling of the preparation and conduct of Russia’s military occupation and annexation of the Crimean Peninsula;

– “to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations” (para 2). The text of this paragraph is explicitly contrary to the Russian statements that only shots would have breached the memorandum,[83] that the only obligation thereunder is to refrain from using and threatening nuclear weapons against non-nuclear states[84] and such like;

– “in accordance with the principles of the Final Act of the Conference on Security and Cooperation in Europe, 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” (para 3) and to “consult in the event a situation arises that raises a question concerning these commitments” (para 6).

Proceeding from the above, there is no doubt as to the invalidity of any statements that the Budapest Memorandum “is only political in nature,” “is declaratory,” “lacks binding obligations,” “only supports the provisions of the Helsinki Final Act,” “concerns the use of nuclear weapons only.” Such statements simply contradict the plain text of the Memorandum. It is not by coincidence that the UN General Assembly affirmed its importance in its key Resolution 68/262 “The Territorial Integrity of Ukraine” of 27 March 2014, referring to the UN Charter, Declaration of Principles of International Law of 1970, the CSCE Final Act of 1975, bilateral agreements between Ukraine and Russia and the multilateral Budapest Memorandum of 1994.[85]

Aggression by one of the assurers under the Budapest Memorandum, and the inability of other assurers to attain compliance with its provisions, immediately induce other states to arm themselves and proceed with nuclear programmes, since these are the only real protections for a state, as opposed to international legal commitments. Therefore, the cooperation of states in the field of disarmament becomes meaningless, and the danger of a new arms race grows. World leaders seem to understand this perfectly well. In her speech at the Munich Security Conference of 2015, A. Merkel, for example, made the following statement concerning Russia’s actions against Ukraine: “Which state is going to abdicate nuclear weapons if we are not able to guarantee its territorial integrity?”[86]

4. Recognition of self-determination of peoples by means of secession by the international community. Kosovo and other cases

Russian officials and scholars often note that the events in Crimea are similar to those in Kosovo, the Aland Islands, the island of Mayotte, the Falkland Islands, Puerto Rico, Gibraltar, Scotland, in the unification of Germany, in South Sudan and in other cases. Kosovo has been a cause célèbre among the historical cases referred to by Russia, its diplomats and scholars, in order to justify the legality of Russian actions.[87]

In general, Russia’s use of the Kosovo example seems really awkward and inconsistent. For the whole period of the proceedings on the case before the ICJ (“Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo”) and long after the opinion, even after the events in the Crimea, Russia was denying the legality of Kosovo’s secession.[88]

The Russian Federation was thorough and detailed in explicating the illegality of Kosovo’s secession in its statement submitted to the International Court of Justice in April 2009.[89] In February 2008, at an informal summit of the CIS, V. Putin opined that “the Kosovo precedent is a fearsome precedent. In fact, it hacks the whole system of international relations which has been built, not for decades, but for centuries”.[90] On 16 October 2014, Putin confirmed that the Russian position had not changed, and that Russia continued to view Kosovo’s secession from Serbia to be illegal internationally.[91]

Kosovo’s example as such differs from that of Crimea in many respects, making it impossible to justify Russia’s actions by referring to it. There has been scholarship on these issues elucidating the principal differences: the existence of Kosovo’s indigenous people (Kosovo Albanians – Kosovars) striving for self-determination; the (Serbian) government exercising national oppression of them resulting in an armed conflict of 1997–1999; many years of in-vain efforts by the international community to solve the conflict; the exhaustion of possibilities for “internal self-determination”; the fact that – as a result of self-determination – while the indigenous people of Kosovo really improved their situation and secured their rights (unlike in the so-called “self-determination” of Crimea, wherein the opinion of Crimean Tatars was disregarded and these people were subsequently made subject to repressive measures). Nor did any state annex Kosovo.[92] None of the circumstances referred to applied in the case of Crimea.

The Kosovo example is irrelevant due to the very content of the ICJ advisory opinion. The latter found that Kosovo’s declaration of independence did not contradict international law because international law did not contain any prohibitions on such acts (para. 84). In doing this, the Court preferred to omit discussing limitations of the right to self-determination and the possibility of using secession as a legal remedy, considering these issues to be beyond the request submitted to it (para 83).[93]

After a thorough analysis of the advisory opinion, M. Hartwig noted i.a. that a unilateral declaration of independence is per se of little value because it does not automatically make a state of a territorial entity. The latter transformation depends entirely on real circumstances and conditions which have not in fact obtained any thorough analysis from the ICJ.[94] A. Peters,[95] J. Vidmar[96] and others share this evaluation of the case. No other interpretation is suggested by any respected scholar.

Having exactly answered the particular question before it, the ICJ did not evaluate the international legality of the “process of self-determination,” “set of procedures of self-determination,” “a people’s exercise of self-determination,” i.e. the actual secession of Kosovo from Serbia in general and all such questions which Russia refers to. Therefore, any Russian references to the Kosovo case are absolutely baseless in all dimensions – factual and legal, and as regards the position of the Court and Russia itself.

At the same time, representatives of the Russian Federation cite other examples, for example on new states emerging in Eastern Europe and the Soviet Union, including Ukraine.[97] Mentioning the independence of Ukraine, Russia forgets that the effective Constitution of 1977 (in fact, like all the previous Soviet Constitutions) provided directly for the right to free secession from the Union (Art. 72),[98] while the fate of the Soviet Union was sealed by the Agreement Establishing the Commonwealth of Independent States of 8 December 1991[99], in which the Founding States arising out of the USSR (Russia, Belarus and Ukraine) acknowledged that the USSR had ceased to exist as an international legal person and geopolitical reality. The processes of the Soviet Union’s disintegration and of the emergence of “new states” were in complete accordance with the rules of international law, with the latter states gaining the recognition of the international community. Unlike the Constitution of the USSR, the Constitution of Ukraine (just like that of Russia) does not permit free exit for Ukraine’s regions, including the Autonomous Republic of Crimea.

In invoking the Aland case[100], Russians neglect the fact that, prior to the coup of 1917, the Aland Islands were a Swedish populated part of Finland within the Russian Empire. The referendum held in 1919 showed that 95.48% of participating Alanders supported joining Sweden, but the Parliament of Finland enacted the “Law on the Autonomy of the Aland Islands”.[101] The rejection of the latter by the population of the archipelago led to the so-called “Aland crisis.” Ultimately, the dispute was studied by a Commission of international lawyers sponsored by the League of Nations,[102] ending in the signing of the Aland Islands Convention of 24 June 1921, which demilitarised the archipelago while ensuring its retention within Finland as a broad autonomy.[103] On 27 June 1921 Sweden and Finland signed the “Aland Treaty” – a peace treaty revolving around the status of the islands. Obviously, if comparisons are made with the Crimean situation, then Crimea must be recognised as a part of Ukraine.

As Quebec’s case is addressed, two points are to be noted. First, the case was remitted to the Supreme court of Canada, i.e. to the judicial body of the “parent state”, which already makes the example inapplicable to the Crimean situation. Secondly, the Court indicated in the judgment that: “the recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination – a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances… As will be seen, international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states.”[104]

Even if we disregard the difference in the facts, it is obvious that references to the referendum in the Aland Islands 1919 and the judgment of the Supreme Court of Canada in the Quebec case of 1998 exemplify attempts to apply subsidiary means to the determination of rules of law. In a case in which an unambiguous and active rule exists on an issue, such a rule enjoys priority over any such subsidiary means. In the Crimean case, there were violations of bilateral treaties between Russia and Ukraine and between governments of the two states and of peremptory rules of general international law (especially those enshrined in the UN Charter).[105] Therefore, all Russian attempts to legalise their actions in Crimea through “historical precedents” are futile.

Besides, from the legal point of view, all of these cases are radically different from the Crimean situation, in one respect or another. For instance, the particular feature of the South Sudanese case is that the referendum on independence held in 2011 was conducted within the framework of the Naivasha Agreement concluded between the central government of Sudan and the Sudan People’s Liberation Movement.[106]

The example of Germany used by S. Lavrov[107] is obviously absurd. For many decades before its voluntary merger with the FRG, the GDR had been an independent state belonging to no other state that might have been wronged from the international legal viewpoint in the course of the unification. Lavrov’s[108] Mayotte example cannot be applied to the Crimean situation, being a singular example of anti-colonial self-determination while the UN preferred the prevalence of the territorial integrity. The island of Mayotte, being a part of the Comoro Islands (a colonial possession under Chapter XI of the UN Charter), expressed its desire to remain a part of France when the Comoro Islands achieved independence in 1975. On the basis of the principle of territorial integrity, the UN General Assembly opposed the desire of the population of the island. This example proves that the UN applied the principle of self-determination exclusively to the existing colonial territories – not the case with the Crimea. The Organisation has never saluted the self-identification as “peoples” of groups within countries. Crimea is not a territory for the purposes of Chapter XI of the UN Charter, therefore the Mayotte precedent cannot be applied to it.

It is extremely hard to understand how the situations with Puerto Rico, Gibraltar and the Falkland islands could be applied to the annexation of Crimea. Puerto Rico has been an unincorporated territory of the United States since 1988. In 2012 a referendum was held (in accordance with Puerto Rican law) to determine whether the island was to join the USA as a state. The other examples – Gibraltar and Falklands – concern referenda permitted by the UK government. They have no similarities with the Crimean situation whatsoever.[109]

It ought to be noted though that in its “Legal case…” Russia itself points to fundamental differences between the Mayotte and Falkland situations, on the one hand, and Crimea, on the other, in terms of international law.[110]

In regard to the referendum in Scotland, it should once again be recalled that Russia (in its Constitution of 1993) does not itself recognise the right of its constituent parts to secede from the Federation, whether through a referendum or otherwise. This is confirmed in the decisions of the Constitutional Court of the Russian Federation.[111] Russian academia had also been adamant in prioritising territorial integrity above self-determination, at least until the events of 2014. The events in Chechnya in the 1990s were among furnished examples of this approach.[112] So should it be logical to profess an approach to Crimea which is opposite to the one professed for other sovereign and independent states?

In general, there is an impression that Russians do not really care about what their arguments actually mean. This impression results from multiple official statements referring to historical examples of territorial change which do not have even the slightest resemblance to the Crimean situation. On the other hand, this proves that examples applicable to the Crimean situation and suitable for Russian references simply do not exist.

Conclusions

Thorough discussion of the principle of equal rights and the self-determination of peoples and its modern interpretation with regard to the Crimean case leads the author to a number of conclusions. First of all, it is impossible to claim the existence of a subject (people) entitled to secession. Secondly, there are no factual and legal grounds to argue for exhaustion of all possibilities for “internal self-determination” on the part of the Autonomous Republic of Crimea within the Ukrainian state. Thirdly, the factual background offers no evidence for events in Crimea that might constitute the exceptional circumstances taken to attest to the legality of secession. Fourthly, the involvement of the Russian Federation in the “secession” makes the whole process illegal under international law. Consequently, the events in Crimea in February–March 2014 do not fulfill any of the requirements for lawful self-determination in the form of secession. In short, assisted by Crimean “authorities” actually controlled by the Russian military and security services, the Russian Federation committed an act of aggression against Ukraine to occupy a part of the latter’s territory and, for the purposes of international law, to in fact engage in the annexation of the territory of another state.

Having analysed the international legal consequences of the 1954 events surrounding the Crimean Peninsula’s transfer to the Ukrainian SSR, the author concludes that that transfer conformed with Soviet legislation. Moreover the legislation of the Russian Federation (to say nothing of international law) does not entitle RF authorities to determine whether the 1954 transfer of the Peninsula was in accordance with the Constitution and legislation of the Soviet Union, and to act upon any such determination. More important in legal contemplation is that the international agreements done between the Russian Federation and Ukraine in the 1990s – 2000s – and still in force – contain norms under which Russia straightforwardly recognises the Crimean Peninsula as an integral part of Ukraine.

All Russia’s historical references seeking to justify what happened in Crimea in 2014 (be these official or scholarly) are flawed factually, historically and legally. The list of wrong Russian examples includes the collapse of the USSR and Yugoslavia, the partitioning of Czechoslovakia, the reunification of Germany, the Kosovo case, the cases of the Aland Islands, the island of Mayotte, the Falklands, Puerto Rico, Gibraltar, Scotland, South Sudan, etc. Against this background, it is also worth noting the diverging attitudes of Russian scholarship vis-à-vis equality and self-determination for Chechnya and Kosovo on the one hand, and for Crimea on the other.

The consequences of the Russian military aggression against Ukraine are so grave that, should the international community fail to stop the aggression, restore the initial situation, make Russia pay for the harm it has inflicted, and secure the criminal prosecution of individuals guilty of the crimes, the consequence may be nothing less than the destruction of the international legal order.

Where criminal responsibility is concerned, there is strong evidence that Russian President V.V. Putin and senior officials in his regime are guilty of the crime of aggression as defined in the relevant international instruments. The particular institutional mechanisms by which such criminal responsibility might be attributed (e.g. before the International Criminal Court or another ad hoc tribunal) depend on the situation as is, and its further development. In any case, the responsibility of Russia as a state is mandatory, as are the measures the international community takes to prevent similar transgressions in the future.

Abstract: The author engages in comprehensive international law-based analysis of the Crimean case and tries to develop a holistic vision. He considers principal issues of the problem to answer a question as to whether events of 2014 represented self-determination and exercise of the right to secession by the Crimean people, or merely Russian annexation of the Peninsula as an integral part of Ukraine.

Special emphasis is placed here on the fundamental principles of international law, their modern interpretation, and the rules set out in international agreements between the Russian Federation and Ukraine. The author seeks to determine whether there are legal grounds for the self-determination of the Crimean people (peoples): is it possible to claim exhaustion of possibilities for “internal self-determination” of the Peninsula within the Ukrainian state? Are there exceptional circumstances regarding the legality of secession, and how does the Russian Federation’s involvement in the events of 2014 affect their legality? Some attention is also drawn to the Kosovo case and other cases in which self-determination by means of secession appears to have gained recognition in the international community, and a conclusion is drawn in respect of whether these examples are applicable to the Crimean case.

Keywords: self-determination, Crimea, Ukraine, Russian Federation.

[*] Oleksandr Zadorozhnii (1960–2017) was a Professor of the Taras Shevchenko National University of Kyiv, Institute of International Relations.

[1] Conference on Security and Co-operation in Europe (CSCE) 1975, p. 59.

[2] A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press, Cambridge: 1998, p. 55.

[3] Declaration on the Granting of Independence to Colonial Countries and Peoples (New York, 14 December 1960), United Nations 1961, p. 5.

[4] The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations 1970, http://untreaty.un.org/cod/avl/ha/dpilfrcscun/dpilfrcscun.html [Most of the hyperlinks in this article last accessed on 30.10.2017].

[5] И. Лукашук, Международное право. Общая часть, Рос. акад. наук, Инт государства и права, Академ. правовой унт, Wolters Kluwer, Москва: 2005, p. 164.

[6] International Meeting of Experts on further study of the concept of the rights of peoples (UNESCO, Paris 27–30 November 1989). Final Report and Recommendations, pp. 7–8.

[7] Background paper for the UN Workshop on Data Collection and Disaggregation for Indigenous peoples (2004), http://undesadspd.org/IndigenousPeoples/MeetingsandWorkshops/WorkshopDataCollection.aspx.

[8] D.J. Harris, Cases and Materials on International Law, 5th ed., Sweet & Maxwell, London: 1998, p. 120.

[9] Framework Convention for the Protection of National Minorities (Strasbourg, 1.02.1995), Council of Europe: http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm.

[10] United Nations Declaration on the Rights of Indigenous Peoples, United Nations 2007, 18 p.

[11] Parliamentary Assembly Resolution 1832 (2011) National sovereignty and statehood in contemporary international law: the need for clarification, Council of Europe 2011, p. 3.

[12] МИД: Русские в Украине – не коренной народ, поэтому не имеют права на самоопределение, День. 17.03.2014.

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[15] Постановление Конституционного Суда Российской Федерации от 7 июня 2000 г. № 10-П по делу о проверке конституционности отдельных положений Конституции Республики Алтай и Федерального закона «Об общих принципах организации законодательных (представительных) и исполнительных органов государственной власти субъектов Российской Федерации», Российская газета (11.06.2000).

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[18] M. Shaw, International Law, 5th ed., Cambridge University Press, Cambridge: 2003, p. 273.

[19] M. Kohen (ed.), Secession: International Law Perspectives, Cambridge University Press, Cambridge: 2006, p. 434.

[20] A. Cassese, in: W. Twining (ed.), Issues of Self-Determination, Aberdeen University Press, Aberdeen: 1991, p. 83.

[21] Kohen, supra note 19, p. 372.

[22] Н.В. Явкин, Проблема обеспечения единства и территориальной целостности государства в условиях борьбы народов за самоопределение, автореф. дисс. к. ю. н., МГУ им. Н. Огарева 2004, p. 4.

[23] Thürer, Burri, supra note 17.

[24] M. van Walt, O. Seroo, The Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention. Report of the International Conference of Experts held in Barcelona from 21 to 27 November 1998, UNESCO Division of Human Rights Democracy and Peace, Centre UNESCO de Catalunya, pp. 13–14.

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[27] Written submissions of the Kingdom of The Netherlands, International Court of Justice, 17.04.2009, p. 7; Written submissions of Germany, International Court of Justice, 17.04.2009, p. 32; Written submissions of Switzerland, International Court of Justice, 15.04.2009, p. 14; Written submissions of Ireland, International Court of Justice, 15.04.2009, p. 14.

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[29] J. Crawford, The Creation of States in International Law, Oxford University Press, Oxford: 2006, pp. 388–391.

[30] Reference re-secession of Quebec, 2 SCR 217 (1998), para. 131.

[31] V.P. Nanda, Self-Determination and Secession Under International Law, 29 Denver Journal of International Law and Polity 305 (2000–2001).

[32] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 403.

[33] A. Peters, Statehood After 1989: ‘Effectivités’ Between Legality and Virtuality, in: J. Crawford, S. Nouwen (eds.), Select Proceedings of The European Society of International Law, Hart Publishing, Oxford–Portland: 2010, vol. 3, p. 179.

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[36] B. Cop, D. Eymirlioglu, The Right of Self-Determination in International Law: Towards the 40th Anniversary of The Adoption of ICCPR and ICESCR, Perceptions 115 (2005), winter edition, p. 130.

[37] J. Harris, Kosovo: An Application of the Principle of Self-Determination, Washington College of Law, http://www.wcl.american.edu/hrbrief/v6i3/kosovo.htm.

[38] Supra note 26, p. 1.

[39] The illegal annexation of Crimea has no legal effect and is not recognized by the Council of Europe. See http://www.assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=4975&lang=2&cat=8.

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[76] Договір між Україною і Російською Федерацією про українсько-російський державний кордон від 28.01.2003 р., Офіційний вісник України (18.06.2004).

[77] Supra note 79; Угода між Україною та Російською Федерацією з питань перебування Чорноморського флоту Російської Федерації на території України від 21.04.2010 р., 39 Офіційний вісник України (04.06.2010), p. 1154.

[78] Постановление Верховного Совета Российской Федерации от 21 мая 1992 года, no. 2809-1 «О правовой оценке решений высших органов государственной власти РСФСР по изменению статуса Крыма, принятых в 1954 году», http://sevkrimrus.narod.ru/ZAKON/o1954.htm; Заявление Верховного Совета Российской Федерации Верховному Совету Украины от 22.05.1992 г., http://sevkrimrus.narod.ru/ZAKON/o1954.htm; Постановление Верховного Совета Российской Федерации «О решении Президиума Верховного Совета СССР от 19.02.1954 г. и Верховного Совета УССР от 26.04.1954 г. про выведенне Крымськой области из состава РСФСР», 6 Ведомости Верховного Совета РФ. (1992), p. 242; Постановление Государственной Думы Федерального Собрания Российской Федерации от 23.10.1996 № 721-II ГД О Федеральном законе «О прекращении раздела Черноморского флота», Москва (23.10.1996); Постановление Совета Федерации Федерального Собрания РФ от 5 декабря 1996 г. N 404-СФ “О комиссии Совета Федерации по подготовке вопроса о правовом статусе города Севастополя”, Система ГАРАНТ, http://base.garant.ru/3936483/#ixzz3mOLTj5RH.

[79] К. Затулин, O. Севастьянов, Два года спустя после обмана в прошлом веке, 17 (2327) Независимая газета (01.02.2001).

[80] О.В. Задорожній, Міжнародне право в міждержавних відносинах України і Російської Федерації 1991–2014, Укр. асоц. міжнар. права, Ін-т міжнар. відносин Київ. нац. ун-ту ім. Тараса Шевченка, Каф. міжнар. Права, К.І.С., Київ: 2014, p. 82–83.

[81] Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679.

[82] Supra note 26, pp. 16–17.

[83] В МИД РФ заявили, что аннексия Крыма и конфликт в Донбассе – это не нарушение Будапештского меморандума, Сегодня (13.03.2014).

[84] Зампостпреда РФ при ООН: Россия взяла на себя ответственность за ядерные объекты в Крыму, Сообщение ТАСС (4.11.2014).

[85] Resolution adopted by the General Assembly on 27 March 2014 [without reference to a Main Committee (A/68/L.39 and Add.1)]. 68/262. Territorial Integrity of Ukraine, United Nations 2014, p. 4.

[86] Speech by Federal Chancellor Angela Merkel on the occasion of the 51st Munich Security Conference, Federal Government of Germany 2015, p. 3.

[87] Декларация о независимости Автономной Республики Крым и г. Севастополя, Пресс-центр Верховного Совета АРК. (11.03.2014), p. 2; Заявление МИД Российской Федерации о принятии Декларации о независимости Автономной Республики Крым и г.Севастополя, Пресс-служба МИД России (11.03.2014), p. 2; Путин: реакция Запада на референдум в Крыму неадекватна, так как игнорирует случай Косово, Интервью В.В. Путина, ТАСС (17.11.2014); supra note 26, pp. 5, 7.

[88] Заявление МИД России по Косово, Министерство иностранных дел Российской Федерации (17.02.2008), p. 2.

[89] Written Statement of the Russian Federation to the International Court of Justice, Ambassador of the Russian Federation to The Kingdom of Netherlands, 16.04.2009, рр. 28, 30.

[90] Путин: независимость Косово повлечет непредсказуемые последствия, РИА Новости, http://ria.ru/politics/20080222/99907461.html.

[91] Путин: позиция России по Косову остается «принципиальной», Радио Свобода, http://www.svoboda.org/content/article/26640933.html.

[92] О.В. Задорожній, Порівняльна характеристика випадків Косово та Криму: міжнародно-правовий аналіз, Українська Революція гідності, агресія РФ і міжнародне право, К. І. С., Київ: 2014, p. 531–548.

[93] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Rep. 2010, p. 403.

[94] M. Hartwig, Das Gutachten des Internationalen Gerichtshofs zur Unabhängigkeitserklärung des Kosovo: Vorgeschichte und «Urteils»kritik, 11 Osteuropa-Recht (2012).

[95] A. Peters, Statehood After 1989: ‘Effectivités’ Between Legality and Virtuality, in: J. Crawford, S. Nouwen (eds.), Select Proceedings of The European Society of International Law, vol. 3, Hart Publishing, Oxford: 2012, p. 179.

[96] J. Vidmar, Territorial Integrity and the Law of Statehood, 44 George Washington International Law Review (2012), pp. 107–140.

[97] Supra note 26, p. 1.

[98] Конституция (Основной Закон) Союза Советских Социалистических Республик (Принята на внеочередной седьмой сессии Верховного Совета СССР девятого созыва 7 октября 1977 г.), Очерк истории Советской Конституции, Политиздат, Москва: 1987.

[99] Угода про створення Співдружності Незалежних Держав від 8.12.1991 р., Офіційний сайт Верховної Ради України, http://zakon2.rada.gov.ua/laws/show/997_077.

[100] В.А. Томсинов, Крымское право или Юридические основания воссоединения Крыма с Россией, Зерцало-М., Москва: 2015, pp. 11–13.

[101] J. Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial Possession With Formulations of Post-Colonial National Identity, Martinus Nijhoff, Leiden: 2000, p. 19.

[102] Report Presented to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Council Doc 21/68/106 (1921), p. 14.

[103] L. Hannikainen, The Continued Validity of the Demilitarised and Neutralised Status of the Aland Islands, 54 Heidelberg J. Int’l L. 614 (1994), p. 618.

[104] Supra note 33.

[105] Charter of the United Nations and ICJ, http://treaties.un.org/doc/Publication/CTC/uncharter.pdf.

[106] O. McDoom, South Sudan Votes for Independence: Vote Report, Reuters (7.02.2011).

[107] J. Rogin, Europeans Laugh as Lavrov Talks Ukraine, Bloomberg View (7.02.2015).

[108] S. Lavrov, It’s Not Russia that is Destabilising Ukraine. The West has been Needlessly Whipping up Tension – If We Don’t Co-Operate Soon, Chaos May Take Hold, http://www.theguardian.com/commentisfree/2014/apr/07/sergei-lavrov-russia-stabilise-ukraine-west.

[109] Л.Г. Гарсия, Сравнение с известными: Почему Крым – не Косово и уместность сравнений с точки зрения международного права, 20 (856) Юридическая практика (20.05.2014).

[110] Supra note 26, pp. 5, 7.

[111] Постановление Конституционного Суда РФ от 13 марта 1992 г. «По делу о проверке конституционности Декларации о государственном суверенитете Татарской ССР от 30 августа 1990 года, Закона Татарской ССР от 18 апреля 1991 года «Об изменениях и дополнениях Конституции (Основного Закона) Татарской ССР», Закона Татарской ССР от 29 ноября 1991 года «О референдуме Татарской ССР», постановления Верховного Совета Республики Татарстан от 21 февраля 1992 года «О проведении референдума Республики Татарстан по вопросу о государственном статусе Республики Татарстан», Демократия.ру, http://www.democracy.ru/library/laws/court/constitutional/ks3-P_13_03_92.html; Постановление Конституционного Суда Российской Федерации от 7 июня 2000 г. № 10-П по делу о проверке конституционности отдельных положений Конституции Республики Алтай и Федерального закона «Об общих принципах организации законодательных (представительных) и исполнительных органов государственной власти субъектов Российской Федерации», Российская газета (04.10.2003).

[112] Н. Явкин, Проблема обеспечения единства и территориальной целостности государства в условиях борьбы народов за самоопределение, Автореф. дисс. к. ю. н. – МГУ им. Н. Огарева, Нижний Новгород: 2004, p. 2; Л. Лазутин, Г. Игнатенко, Равноправие и самоопределение народов, Международное право, Инфра-М, Москва: 2002, p. 123; Р.М. Тимошев, Право наций на самоопределение и современные межнациональные конфликты, 3 Армия и общество (2008); А.В. Кузьмин, Принцип территориальной целостности государства: проблемы правовосстановления, 2 (33) Евразийский юридический журнал (2011).

Exercise of the Right to Self-Determination: International Standards versus the Crimean Mess
Oleksandr Moskalenko[*]

doi: 10.7366/9014Crimea4

Introduction

The current Ukrainian crisis is often called the greatest challenge posed to security in Europe since the Second World War.[1] Indeed, the crisis, which emerged from internal Ukrainian discourse on the subject of a possible integration vector and students’ protests against the hypocrisy and dubious double games of President Yanukovich in December 2013, unexpectedly developed into a full-scale armed conflict involving a nuclear power. The crisis continued with the Russian occupation and annexation of Crimea in March 2014, shaking the fundamental principles of international law, as well as the foundations of the current European security architecture. Moreover, the relatively peaceful occupation of Crimea only warmed up Russian ambitions for aggression, thus triggering the full-scale war in Donbass, which has already caused thousands of casualties, made hundreds of thousands refugees and totally destroyed one of the richest regions of Ukraine.

This article studies the initial period of the Ukrainian crisis, associated with the Russian annexation of Crimea. The study is pursued from the perspective of international law, which has developed a number of accurate and efficient standards for the fulfilment of self-determination and secession rights, thus distinguishing these rights from cases of aggression or interference in the internal affairs of a neighbour. Basing itself upon these standards, the article argues that the Russian annexation is an evident case of military aggression and unlawful occupation, which has nothing to do with either self-determination or the right of the Crimean people to secession.

Well-developed practice in international law emphasises a number of different aspects to the process whereby the right to self-determination or secession may be exercised. These are i.a. an intensive internal political process, the provoking of debates of national reach, quite often bringing new, high-profile leaders to the fore, a constitutional context to the process, and an international dimension for obvious reasons connected with changes of state borders and/or the appearance of a new state. Practice thus refers to well-developed procedures, as well as clear-cut criteria by which compliance with international law is to be determined.

From this perspective the case of Crimea is indeed astonishing, given that it entails breaches of every single international standard. Russian claims that Crimea was “reunified” with Russia through a lawful exercising of rights to secession or self-determination do not stand up to any serious analysis, as flaws in this argument will be evident to anybody having even a superficial knowledge of international law. The statement may thus be treated as nothing more than a populist slogan, designed by Russian totalitarian propaganda for the benefit of its own citizens, or as President Vladimir Putin’s mockery of the “Western world”, with its commitment to democracy and the prioritisation of vox populi over state ambitions.

This article concentrates on three major aspects of the above process, which demonstrate the difference between the Crimean case and a genuine process of self-determination. These elements are the leadership of Crimea, the referendum procedure and international reaction to the Crimean events. The article contains a substantial comparative element, as reference is made to a number of cases seeming to emphasise different aspects of the self-determination process, and offering a contrasting background for the Crimean events. Referred to in particular are the cases of the Bangladesh, Czechoslovakia, Southern Sudan, Western Sahara, and Québec independence referenda, as well as the most recent similar case of Scotland’s independence referendum of 2014. The article consists of three parts providing insights into different aspects of the Crimean events: leaders, the referendum procedure and international reaction to the Crimean referendum, as well as reaction to the Russian occupation of the Peninsula. These parts are accompanied by an Introduction and Conclusions.

1. Leaders

Starting with an analysis of the personalities of the signatories to the treaty of Crimean “reunification” with Russia, it is worth mentioning why this issue is of importance. The right to self-determination is perhaps one of the most fundamental and democratic rights existing in international law. It starts from the very local level, with the recognition of differences in cultural, social or economic life that make the further status quo of the state impossible, and raise the issue of change being made to the very basis underpinning that state, often leading to a splitting of the initial state into two or more parts. To some extent, the principle of self-determination matches one of the major doctrines of democracy entitling people to control their own government, thus leading to the right to secede if the government mistreats its own people, particularly by discriminating against part of the country’s population. As experience with the decolonisation process demonstrates, democratisation often goes hand in hand with an upsurge in national self-awareness, thus leading to the rise of self-determination movements. The Czechoslovakian case is one of the latest examples of this interconnection.

Usually the recognition of a nation’s unity, as well as “grassroots” discussion about a people’s own future, is transformed into a political process, evoking nationwide debate at the level of political parties and election platforms, which is widely covered in local and national media. Quite often this process gives rise to national leaders, whose political career can easily be traced to the roots of the national movement. The personalities and careers of leaders thus offer important insights into political processes associated with the exercise of the rights to self-determination and secession.

1.1. Bangladesh

In the case of Bangladesh, the Bengali national movement was the Bangladesh Peoples’ League (Bangladesh Awami League), which was created in 1949. For the elections of 1970 this political party presented its political platform of struggle for wide economic and political autonomy for East Pakistan.[2] With its declared political platform, the Bangladesh Peoples’ league obtained 167 out of 169 quota seats in the Pakistani Parliament.[3] At the local elections in East Pakistan the results were similar – 288 seats out of 310. The party leader was Sheikh Mujibur Rahman, who was among the founders of the party, and who was imprisoned for his political beliefs by the Pakistani authorities.[4]

After the elections of 1970, which demonstrated a political triumph for the Bangladesh Peoples’ League, legitimising it as the genuine representative of the Bangladesh people, the Pakistani central authorities began with the suppression of the national movement, which in turn led to the declaration of independence by Bangladesh, as delivered by Sheikh Mujibur Rahman on 2nd March 1971, and the formation of a temporary government in April 1971. The armed conflict between Pakistan and Bangladesh that followed had clear signs of a national liberation struggle, which contributed greatly to the international recognition of Bangladesh as an independent country, thus leading to its fast obtainment of full international legal personality, and UN membership, in 1974.[5]

1.2. Czechoslovakia

In the case of the Czechoslovakian split of 1 January 1993, three major political figures were involved: President of Czechoslovakia Vaclav Havel, and Prime Ministers of the Czech and Slovak Republics respectively, Vaclav Claus and Vladimir Meciar. Moreover, it was Claus and Meciar who “benefited from mutually profitable antagonism as they pushed each other into winning political position through a dynamic of polarization”, [6] and who in a sense collaborated in the demolition of their shared state.

However, the example of the three Czechoslovakian leaders at that critical time is another illustration of the traditional road to leadership rather common to a nation appealing for the right to self-determination. In this context, the “Velvet Revolution” should also be viewed in terms of the right to self-determination being fulfilled, in the course of the decommunisation and de-sovietisation of Central and Eastern Europe. This in turn denoted a number of similarities with the decolonisation process, since the core of both processes is the same – a way of completing political independence and a nation’s building of its own statehood.

The Czech poet and playwright Vaclav Havel was a prominent participant in the liberal reforms of 1968 (known as the Prague Spring), and a famous Czech dissident. After the Soviet clampdown on Czechoslovakia he cemented his dissident reputation i.a. by publishing the Charter 77 manifesto. During the 1970s and ’80s he was arrested repeatedly, and served four years in prison (1979–83) for his activities seeking to safeguard human rights. When massive anti-government demonstrations erupted in Prague in November 1989, Havel became the leading figure in the new coalition of non-communist opposition groups pressing for democratic reforms. His party played a major role in the Velvet Revolution that toppled communism in Czechoslovakia in 1989. In early December the Communist Party capitulated and, as a result of the agreement between the partners to the “Velvet Revolution”, Havel was elected to the post of interim President of Czechoslovakia on 29 December 1989, and was reelected to the Presidency in July 1990, becoming the country’s first non-communist leader since 1948.[7]

In the post-Velvet Czechoslovakia Havel remained the most popular politician,[8] whose role was described by the following words: “Havel enjoyed tremendous legitimacy as President. He imparted to politics a moral dimension that commanded respect”.[9] Apparently, the peaceful nature of the Czechoslovakia split process is connected with the personal qualities of Havel, whose contribution to the non-violent split cannot be over-estimated, as it became possible i.a. because “Havel was no Milošević”.[10] Writing more about Havel, it is important to emphasise that he had a special reputation of being “a great European”,[11] cited as one of the 15 Champions of World Democracy,[12] who received a number of international awards for his activity promoting the protection of human rights and democracy.[13]

The secession in Czechoslovakia offers further evidence as to the connection between the right to self-determination and democratisation as the political process leading to the split of this country cannot be separated from the “momentous “Velvet Revolution”, which brought about the reinvention of civil society and democratisation of political institutions”.[14] The first free parliamentary elections of 1990 suddenly unleashed the suppressed political energy of the country, “lending a sinister air to the political forces and the competition emerging in the new democracy”.[15] The impetuous nature of political life resulted in the emergence of numerous parties, which formed pre-election alliances.

The starting point for the polarisation between Czech and Slovak leaders became the issue of economic reforms with Slovak perceptions of economic injustice,[16] and Czech perceptions of Slovakia as an obstacle to Czech economic development.[17] Moreover, Klaus’s neo-liberal approach was in line with this type of reasoning.[18] However, the issue of nationalism was soon brought to the fore. As Prof. Havlova put it: “with the fall of Communism, Slovak (and Czech) nationalism was no longer suppressed and the question of mutual relations between Czechs and Slovaks, including their future coexistence in a common state, was opened with the significant assistance of the media. Soon it was clear that no political party could afford to ignore the question of Czech-Slovak relations”.[19]

The right-wing Finance Minister of the Czech Republic, Vaclav Klaus presented a programme of radical economic reforms, which included swift privatisation, a reduction in subsidies, an end put to the state control over prices, and other market-oriented reforms. This was the programme which brought his movement to Parliament with one of the top results. In late 1990, the need for a coalition, as well as continuous political processes, brought Vaclav Klaus to the position of Chairman of Civic Forum – a right-wing inter-parliamentary grouping. Klaus assumed the position in October 1990. At the January 1991 Civic Forum Congress, Klaus and his allies succeeded in forming a unified party from the popular movement. The members of such allied movements as Civic Forum, the Liberal Club and some others were finally organised into a parliamentary-type right-of-centre political party under the name of Civil Democratic Party, which was presided over by Vaclav Klaus.[20]

Slovakia experienced a similar process, albeit one specified by a rise of a nationalist movement. The “Public Against Violence–Christian Democratic Movement” in Slovakia was a major umbrella formation including a wide spectrum of parties and movements, united by anti-communist ideology and the issue of reforms. The result of the 1990 elections saw “Public Against Violence” gain 48 out of 150 seats on the Slovak National Council, though it was the formation of the coalition with CDM and the Slovak Democratic Party that brought the leader of PAV Vladimir Meciar the position of Prime Minister.[21] However, after the municipal elections of 1991 “Public Against Violence” was split. Meciar also tried to transform a popular movement into a political party, emphasising nationalistic elements of its platform, but he failed and had to leave the movement as well as stepping down as Slovak Prime Minister. With the June 1992 elections in view, Meciar’s new project – a party called the “Movement for Democratic Slovakia” – emerged in May 1991, bearing the imprint of the national and populist rhetoric of its leader as the party outlined the Slovakian urge for independence in its election programme.

The difference in understanding of the pace of economic reform between the Czech Republic and Slovakia was growing, thus leading to the radicalisation and polarisation of the political spectrum. The increasing split between the republics and unsuccessful negotiations as to the future of the federation[22] were among the major reasons for the extraordinary elections of June 1992. However, instead of balancing the situation, those elections results completed the polarisation,[23] making Klaus and Meciar victors as their political parties obtained correspondingly 30 and 38 per cent of the vote for their republics’ National Councils.[24] The extreme difference of their political platforms as well as rhetoric heated by the alliance with nationalist parties by both leaders, contributed to the phenomenon of the Czech-Slovak peaceful “velvet divorce” as the “antagonism between the leaders was beneficial to each of them as opinions polarized and consolidated”.[25] What was to be a post-election discussion on a new federal government quickly turned into a discussion on splitting the country.[26]

The Czech-Slovak separation was not marked by the decisive event of a referendum; however, “the dynamics of Czech-Slovak relations are such that the split can no longer be averted”.[27] After elections of June 1992, which are often considered to be the watershed event in terms of the dividing of the country,[28] Klaus and Meciar agreed to have a referendum, which was offered to the Federal Assembly on 16 July 1992, but was blocked. At that time even Vaclav Havel admitted that “at this stage a referendum on the future of Czechoslovakia no longer makes any sense”.[29]

1.3. Scotland

In Scotland, it was the Scottish National Party which was associated with the idea of Scottish independence. The political career of the Party’s leaders – Alexander Salmond and Nicola Sturgeon – went hand in hand with the history of the party, as both became major figures within it in the 1990s, and maintained this status up to the time of recent events. Mr. Salmond was the leader of the Scottish National Party for twenty years (1990–2000 and 2004–2014).[30] Ms. Sturgeon joined the SNP at the age of 16 and has been campaigning for Scottish independence ever since. She has been among the party’s candidates for elections since the end of the 1990s.[31] For the 2007 elections to the Scottish Parliament, the SNP presented an election manifesto in which the central point was the organising of a referendum on the independence of Scotland. It was on this platform that the Scottish National Party emerged as the election’s clear winner, obtaining 47 seats out of 129 in the Scottish Parliament.[32]

1.4. Crimea

Compared with the cases referred to, Crimea is seen to have leaders of an obviously different type. The three signatories to the “reunification treaty” on the Crimean side were:

• The “Prime Minister of Crimea” (Mr. Aksenov);

• The “People’s’ Mayor of Sevastopol” (Mr. Chaliy);

• the “Chairman of the State Council of Crimea” (Mr. Konstantinov)[33].

From this list, Mr. Aksenov is the only person in some way associated with political life in Ukraine. However, he is also well-known in criminal circles by the nickname “Goblin”.[34] In describing his political career, it is worth mentioning that, from 2008 on, he was the leader of the all-Ukrainian “Russian Unity” Party.[35] And, unlike in the above-mentioned cases, “Russian Unity” was not a successful political force at all. It never won a single seat in the Ukrainian Parliament and its maximum level of support achieved in Crimea was 4%.[36] It may seem mysterious that a person enjoying such a low level of support among voters became Prime Minister of Crimea. However, the mystery is resolved simply – he was elected on 27 February 2014 under the guns of the Russian Special Forces soldiers, who had captured the Crimean Parliament building. No press or TV were admitted to this session, which is not believed to have obtained a quorum. Neither are any records whatever of this session available.

Another signatory – Mr. Chaliy – is a citizen of Russia[37], and was elected as “the People’s Mayor” at a meeting held in the streets of Sevastopol at the end of February 2014.[38] These two facts seem only to underline the phantasmagoria of the events occurring, obviously so far removed from any legal or democratic principles that comment seems entirely superfluous. Moreover, the Ukrainian Constitution does not foresee the position of Mayor of Sevastopol. Neither does it provide for any State Council of Crimea, or the position of Chair thereof – as the title held by Mr. Konstantinov. The State Council of Crimea only appeared on 17 March 2014, by way of self-proclamation. Although Mr. Konstantinov was a Member of the Party of Regions, his major activity was the construction business, as he was the Director General of the Console construction company.[39] Obviously, he was not the leader of any popular movement with any agenda for Crimea. Moreover, the Party of Regions was the party of President Yanukovich. Evidently as the ruling party this never discussed the issue of Crimean independence, or its transfer to Russia, publicly. Neither was Mr. Konstantinov any dissident or public movement activist, but merely a mainstream businessman, regularly obtaining awards from the Ukrainian state, like the special title of “Honoured Constructor of Crimea”.[40]

In concluding this part of the article it is necessary to emphasise the striking differences in profile separating signatories to the treaty on Crimea’s “reunification” from the leaders of genuine national movements. As the referred cases demonstrate, the leaders of authentic national movements won their leadership in political battles, struggling for ideas in which they believed. Furthermore, they became leaders because nations supported their beliefs as well as their parties, which declared their political goals openly, be it the holding of an independence referendum, secession from the existing state, or the provision of wider autonomy. Moreover the promotion of the leaders in those cases was a clear sign of the public debate, as well as the people’s support for the idea that a nation may exercise its right to self-determination.

In the case of Crimea these false leaders appeared out of nowhere. They were either marginal politicians like Mr. Aksenov, or total outsiders from the point of view of both Ukrainian or Crimean politics, like the two other gentlemen. Obviously, there was no sign of those people’s popular support, in terms of the Crimean secession. Another relevant point would concern the absence of any public debate about Crimean secession over the entire period of Ukrainian independence – i.e. the last twenty-four years, as well as the absence of any political party even raising the issue. As the Parliamentary Assembly of the Council of Europe emphasised in its resolution of 9 April 2014:

Given that neither secessionism, nor integration with the Russian Federation, was prevalent on the political agenda of the Crimean population, or widely supported, prior to Russian military intervention, the Assembly considers that the drive for secession and integration into the Russian Federation was instigated and incited by the Russian authorities, under the cover of a military intervention.[41]

In this context, the election of “Crimean leaders” literally under the bayonets of Russian Special Forces soldiers only stressed how the Crimean events had nothing to do with the right of self-determination, but were acts of military aggression. An election process of this type demonstrated that the “Crimean leaders” elected by the occupants are collaborators, or “puppets”, as Prof. Zadorozhny called them,[42] but not the leaders of a national liberation movement, or people of Crimea.

2. Referendum

Traditionally, a referendum is considered the highest display of democracy, when people directly make decisions regarding their own future. Against this nobler background, the Crimean referendum emerges as a disgusting caricature of this image, in every element of its procedure. Comparisons of the Crimean referendum with those held in Scotland, Quebec, or even Southern Sudan illustrate the striking difference between the true referendum as an act of direct democracy and the farce designed to cover aggression.

2.1. Scotland

In Scotland the plans for an independence referendum to be held were announced in January 2012. In the following year the issue was a constant focus of mass-media attention, with aspects of possible independence ranging from currency to the need for an independent Scotland to re-enter the European Union the subjective of exhaustive debate. The legal basis for the referendum was the Scottish Independence Referendum Act.[43] The bill covered such topics as the eligibility of voters, registration rules, ballot papers, referendum conduct rules, counting rules, etc.[44] On 30 May 2014 public debates started officially, and were continued with for 16 (sixteen!) weeks. The referendum itself took place on 18 September 2014, i.e. a year and a half after its official announcement, and seven years on from the time the idea of its being organised had first been announced by the Scottish National Party and gained the support of Scottish voters in the 2007 elections. The referendum was carried out in accordance with the proceedings foreseen for electoral events in the United Kingdom. A 169-page official report reflects the details of the procedure[45], while the voting process itself was supervised by 224 accredited observers,[46] including a number of international Observation Missions from such countries as Switzerland; Russia, Georgia, Spain, Italy, Chile, Kenya, etc.[47]

2.2. Quebec (Canada)

The story of referenda in Quebec offers a further example of the authentic exercise of the right of self-determination, taking place in a civilised way, and in accordance with international standards. Obviously, any presentation of this story should start with the political context framing the first (1980) referendum. Despite the long history of uneasy relations between the French- and English-speakers in Canada’s largest province of Quebec the separatist movement only re-emerged as a political force there in the 1960s. In 1967, a charismatic former member of the Quebec Liberal Party, René Lévesque, founded the Mouvement Souveraineté-Association, which became the Parti Québécois in 1968. The party’s début at the elections of 1970, with the rather high result of 30%, was followed by victory in the 1976 elections, with the party obtaining 71 of the 110 seats in the National Assembly. This development gave rise to sovereignty plans set out in a special White Paper of 1979.[48]

While the issue of a Quebec referendum was raised in 1969, initially the National Assembly did not manage to pass the special law required in this regard. However, after the victory of Parti Québécois in the 1976 elections, a Referendum Act was adopted in 1978. This law details technical and legal questions relating to the referendum, dealing with such issues as announcement, questions, debates, procedures and terms, ballot printing, voting procedures, results and legal force.[49] It might be stressed at once that, by virtue of this law, the campaign was to last between 28 and 60 days, while polling day could be no more than 60 days following the issuance of the referendum writ.[50] The referendum campaign of 1980 was rather intensive and vigorous. The debates between YES and NO supporters covered such topics as constitutional aspects of the secession, job decline, changes relating to taxation and the issue of an own currency for Quebec, which would obviously have imposed additional economic pressure on the province, should it have become independent.[51]

On June 21, 1979, René Lévesque, the leader of Parti Québécois announced that the referendum would be held in spring 1980. In December 1979, the official question for the referendum was announced, while the referendum itself took place on 20 May 1980. There were thus more than five months available for debate and discussion. The outcome was a “No” to independence, with about 60% of voters supporting this option.

However, Canadian reform in the direction of constitutional centralisation, which followed the referendum returned the issue of Quebec’s independence to the political agenda, given changes described by the New York Times as representing a “sharp loss of constitutional status” for the provinces.[52] It therefore came as no surprise that, in the elections of 1994, the separatists of Parti Québécois regained a majority in the National Assembly, thus opening the way for the second Quebec referendum of 1995. This referendum was carried out in accordance with the same Referendum Act 1978, albeit by that time in a considerably amended version. The most important alterations dealt with the terms for the referendum’s announcement, funding, and procedure as regards vote recounts in cases of dispute. Crucially, a new rule for victory by just a simple majority was introduced. [53]

The debate campaign for the referendum of 1995 was also described as very intensive, including a number of vigorous arguments and TV debates. Both “Yes” and “No” supporters invoked internal and international issues in supporting their positions. While “Yes” supporters concentrated on issues of solidarity and the gains that independence would bring, “No” supporters exploited the economic arguments, and the costs of the separation, which would include a break of trade connections and growing unemployment, as well as international tensions due to the inability of an independent Quebec to automatically join NAFTA and other international organisations or agreements.[54] The decision to have the referendum was taken on 12 June 1995, and the vote was scheduled for 30 October 1995, giving more than four months for preparation of the event, debates and discussions. The debate campaign officially began on 2 October 1995, with TV broadcast speeches from leaders of both the “Yes” and “No” campaigns. The outcome of the referendum was a narrow margin of a little more than one per cent (50.58% against 49.42%), for the winning “No” answer. Obviously, there was close scrutiny of the voting procedure, which ensured confidence in results separated by such a small margin, as well allowing fraud allegations to be countered. A later official report by the Director General of Elections Québec, also published in 1996, only confirmed that there had been no systematic fraud, even if minor incidents had taken place.[55]

2.3. Southern Sudan

The referendum in Southern Sudan was declared by the Naivasha Agreement of January 2005[56] as a part of the peace process designed to end twenty years of civil war. Following the decision of the Hague Tribunal of July 2009, which determined the borders of Southern Sudan, preparation for the referendum got underway. In December 2009, the Parliament of Sudan adopted the law, which contained rules for the referendum procedure.[57] Under the aegis of the UN[58], more than three thousand centres for the registration of voters were opened, with 8000 volunteers taken on.[59] In November 2010, the registration of voters was commenced with.[60] That registration ended on 3rd January 2011, with four million voters registered as eligible to take part in the referendum.[61]

Four million ballot papers were printed and brought to Southern Sudan by the United Nations Development Programme.[62] The referendum took place over a week – from 9 to 15 January 2011 – with the most voters supporting the secession option.[63] The referendum was monitored by a number of different observation missions, which offered unanimous confirmation as to the transparency and high democratic standards of the procedure. In particular, there were statements from the Japan Observation Mission, U.S. House of Representatives Foreign Affairs Committee, Arab League Mission, EU Observation Mission, as well as a number of other NGOs like The Carter Center.[64]

The period between the declaration of the referendum and the date on which it actually took place lasted more than five years. This is a reasonable amount of time for public debate on the essence of the referendum question. A number of different international observation missions, as well as UN surveillance over the referendum procedure, ensured a free, transparent and credible polling process, as well as its compliance with international standards. The European Union’s Observation Mission issued a final report covering details of the referendum process over more than one hundred pages.[65] This document provided comprehensive study of such aspects of the referendum as its legal framework, registration of voters, administration, campaign, media coverage and the participation of civil society, voting and counting processes, and overall conclusions.[66]

The international reaction to the results of the referendum was also positive, with emphasis placed on its importance in terms of both peaceful process and the exercise of right to self-determination. In particular, UN Secretary General Ban Ki-Moon made positive references to the referendum in Southern Sudan, emphasising how it had been “conducted peacefully and credibly”.[67] The results of the referendum were also welcomed by EU High Representative Baroness Catherine Ashton[68] and by US President Barack Obama.[69] On 31 January 2011, Ms. Ashton’s statement was reinforced by the conclusions of the Foreign Affairs European Council, which also welcomed “the timely, peaceful and credible conduct of the Southern Sudan Referendum”.[70] On 9 February 2011 the observers of the Naivasha Agreement issued a common statement, welcoming the results of the referendum and stressing the positive assessment on the part of the observers, who emphasised the peaceful procedure of the referendum as well as its credibility and correspondence with international standards.[71] The statement confirming the referendum results was signed by representatives of the UN, EU, African Union and League of Arab States, as well as Egypt, Italy, Kenya, The Netherlands, the US, Norway and Uganda.

2.4. Crimea

The referendum in Crimea was carried out in a much different way. Perhaps the easiest way to characterise it will be by dealing with the most important issues of the procedure, by reference to a number of short questions and answers.

What was the legal basis of the referendum?

None. The idea of the Crimean referendum was in violation of the Constitution of Ukraine, which provides only for all-Ukrainian referenda in such cases.[72] The illegality and anti-constitutional nature of this referendum was referred to virtually unanimously by the international organisations. Perhaps the most overriding conclusion was that provided by the Council of Europe’s European Commission for Democracy through Law (otherwise the Venice Commission), which emphasised that the referendum was incompatible with European constitutional principles.[73]

Did the referendum have any written rules of procedure?

None. Unlike the cases referred to, in which a special law was adopted to regulate referendum procedures, the organisers of this referendum did not bother with “such details”. As a result, there were no formal rules at all for the Crimean referendum.

Any debates?

No debates. This comes as no surprise, as the ten-day term for the referendum’s organisation precluded any chance of debate. In setting this referendum against the other cases referred to, it also needs stressing that options other than “reunification” with Russia obviously existed. The initial question for the referendum declared on 27 February 2014 was concerned with broadening the autonomy of Crimea as a part of Ukraine.[74] Somehow, that question was also changed in the course of the ultra-fast “preparation process”. Also there were high-profile leaders in Crimea, who were against the “reunification”. It suffices to mention Refat Chubarov and Mustafa Dzhamilev, the leaders of the Crimean Tatars. However, they did not have a chance for even a single public discussion, let alone any debate forming part of the campaign. Moreover, Russian occupying troops started terror against Crimean Tatars from the first days of the intervention,[75] which included expelling the leaders from their homeland, and even brutal killings of Tatar activists, alongside the oppression of civil rights typical for modern Russia.[76] Evidently, there was no space for debate in the atmosphere of terror holding sway on a Crimean Peninsula occupied by Russian troops. As the OSCE – via the words of its Parliamentary Assembly – emphasised, the referendum was “conducted in an environment that could not be considered remotely free and fair”.[77]

Who participated in the referendum?

No idea. The organisers had no access to lists of voters, as these are maintained by Ukraine’s central authorities. There was no registration procedure akin to the one in Southern Sudan, so the organisers had no clue as to who was actually eligible to vote, and what the size of the electorate was.

Who printed the ballot papers, and how many of them were actually printed?

There is no officially confirmed information about the number of printed ballots or the identity of those who did the printing. Moreover, nothing is known about any special protection for the ballot papers, whether there were any, or whether those papers were just copied on photocopiers. Obviously, it is impossible to print an appropriate number of bailout papers if numbers of voters remain unknown. However, this was no problem for the organisers as they simply printed as many ballot papers as they thought they might need. There were reports of 2.2 million ballot papers being printed [78], as set against an official number of voters equal to 1.6 million or so.[79] What needs stressing separately was that the referendum was boycotted by the Mejilis (supreme executive body) of the Crimean Tatars, the Peninsula’s only indigenous nation, making up more than 10% of the Crimean population.[80]

What were the voting and counting procedures?

There is no official information on this, as there were no official observers for this referendum from any respectable international organisation.

What to discuss under these circumstances?

Obviously, the mess with the Crimean referendum is so evident, that the very application of the term “referendum” to these events looks like mockery in itself. A bunch of imposters announced a plebiscite; then, without burdening themselves with the declaration of any formal rules, in contravention of binding legislation, printed out Lord knows how many ballot papers, called no debates at all and then claimed within a week that “the referendum” had successfully taken place, even though they did not even know how many people were eligible to vote. Of course such an action is illegal and illegitimate. There is nothing to discuss, though there are two issues requiring a closer look, i.e. the time schedule, and the occupation of the Crimean Peninsula by Russian forces.

Time schedule

The referendum was announced on 27 February 2014, at the same in camera and non-quorate session of the Crimean Parliament as took place once the building had been captured by Russian Special Forces soldiers. The latter merely vacated the building with a paper announcing that the referendum would be carried out on 25 May 2014. However, literally the next day – i.e. on 1st March, the date was changed. In line with the new announcement, voting was to take place on 30 March. But this was not the end of the story. On 6 March the day of the referendum was changed again – now being brought forward to 16th March. Ultimately, then, only ten day elapsed between the final determining of the referendum date and the actual exercise. Despite the cancellation of this referendum by the legitimate Ukrainian authorities on the following day (7th March), the Crimean referendum took place on 16 March. Two days later – on 18th March – President Putin made his “Crimean speech”, and the “reunification treaty” between Russia and Crimea was signed. After just another two days, that treaty had been ratified by the Russian Parliament.

The Russian Occupation

The second fact is that the referendum took place in the circumstances of direct military intervention by the country that later annexed the territory. In the documentary by Andrey Kondrashov entitled “Crimea. The way back to the Motherland”[81], President Putin confirmed that it had indeed been the regular military forces of Russia that had captured the Crimean Peninsula before the referendum. In the face of this confessing to something that was already well-known, [82] it is hard to add much else. Russia first occupied Crimea and then organised a farce that it dubbed a referendum. It is a basic fact of international law that the presence of occupying military forces leaves a referendum held on the occupied territory illegitimate, to say nothing of a referendum designed specifically to legalise the said occupation.

Given these facts, it comes as no surprise that, in its assessment of the Crimean referendum, the European Commission for Democracy through Law made a statement on 21st March 2014[83] that emphasised its illegality, as well as the way in which international norms and standards set out by the Venice Commission’s Code of Good Practice on Referendums were being violated.[84] From this perspective, it is worth seeking an answer to the question as to what the genuine reason for the referendum was, given that its breach of all possible standards is so obvious as to be beyond any reasonable doubt. Prof. Sayapin correctly emphasises that the distinctive feature of the Crimean referendum was its goal – devolution and the breakdown of the territory of a sovereign state.[85] Certainly, this is another point that distinguishes the Crimean referendum from the other cases referred to, as those referenda were carried out with the more traditional goal of properly reflecting the opinion of the people, within the wider framework of a proper course potentially leading to exercise of the right to self-determination.

The analysis pursued here is thus able to demonstrate that the Crimean referendum of 16 March 2014 failed to meet international standards at every procedural stage. Without any legal grounds or definite rules, the off-hand referendum was organised in ten days. The oppressive atmosphere of terror as well as the lack of time precluded any chance for a debate on a Peninsula already occupied by Russian forces. In the circumstances of a boycott by the indigenous Crimean Tatars, and with an unknown number of voters marking home-made ballot papers, Russia’s occupying forces declared a tremendous victory of 83.1% of the population participating, and 96.77% of participants supporting the “reunification with Russia” – a contested result,[86] which cannot be confirmed by any respectable observer organisation, given that all of those refused to participate in the farce.[87] Obviously, the manner in which this “referendum” was conducted demonstrated clearly that Putin’s regime never anticipated any kind of genuine plebiscite. The obvious political goals of masking military aggression and endeavouring to achieve devolution from Ukrainian statehood only emphasised how far was the Crimean referendum from the right to self-determination, democracy or the interests and aspirations of people living on the Peninsula.

3. International participation and recognition

The issue of the rights to self-determination or secession would not be complete without a discussion of the role the international community and its institutions play in this process. The cases of Western Sahara and Namibia demonstrate that the stance the international community adopts towards a problem can be of crucial importance to the case of the territory in question.

3.1. Western Sahara

The issue of Western Sahara has been on the agenda of the UN since 1966, when a first Resolution was adopted calling for the provision of opportunities for the people of Western Sahara to exercise their right to self-determination.[88] This resolution called for a UN-supervised referendum to be held on this territory split by the ambitions of Spain, Morocco and Mauritania. The referendum was scheduled by Spain for 1975, but was postponed by UN Resolution 3292 (XXIX) of 13.12.1974, which contained three major points:

– to postpone the referendum;

– to send a special UN Mission to Western Sahara

– to ask for an advisory opinion from the International Court of Justice.

The UN Mission started its work in June 1975, and later reported that the majority of the population of Western Sahara supported the idea of complete independence, which contradicted the allegations of Morocco and Mauritania. The Mission also established that the “Polisario” national front could be considered representative of the will of the local population.[89] In the same 1975, the International Court of Justice provided its advisory opinion, declaring that the future of Western Sahara must be determined by a free vote among the people living there.[90] Responding to the allegation of Morocco and Mauretania, the Court emphasised that the decolonisation process demands respect for the rights of the people inhabiting the territory in question. Therefore, even in the context of historical rights for the territory, the Court cannot reject the rights of the people of Western Sahara to determine their own destiny at the given time.[91] However, for a number of political reasons the referendum did not take place, and Spain concluded an agreement whereby Western Sahara was transferred to Morocco and Mauritania. However, one day before the official transfer – i.e. on 27 February 1976, the “Polisario” national front declared the independence of the Sahara Arabic Democratic Republic and its determination to fight for independence against the occupation forces of Morocco and Mauritania. After the coup in Mauritania in 1979, that country withdrew its troops, but Morocco kept its military forces in place, and also took over the Mauritanian sector of Western Sahara, thus leading to decades of clashes with “Polisario” forces.

The issue of Western Sahara remained a focus of UN activity, with a number of Resolutions calling for the end of clashes and preparation for a referendum under UN surveillance.[92] In April 1991, the UN Security Council adopted Resolution 690, which foresaw a peace “road map” for Western Sahara.[93] While a cease-fire agreement was signed later that year, the said referendum has still not taken place.[94] The cease-fire of 1991 has been the key element underpinning peace in Western Sahara for more than two decades, with UN peacekeeping forces involved in the process. Resolution 690 also established a UN Mission for the Referendum in Western Sahara (MINURSO), with a mandate to implement the settlement proposals during a transitional period. Although the major point of discord regarding voters’ registration had been resolved by the end of 1998, the difference in the referendum formula, as well as a number of other political reasons conspire to go on preventing organisation of the referendum, thus postponing the ultimate political resolution to this conflict. The four rounds of direct negotiations between Morocco’s officials and “Polisario” national front representatives, which took place in Manhasset (USA) in 2007–2008, did not manage to provide an acceptable solution. Neither did the nine rounds of informal talks held in the 2010-2012 period.

From the perspective of the Crimean occupation, this case emphasises two issues: first, that there is a long-term and active stance on the part of the international community where conflict resolution is concerned. The UN’s active involvement includes the Special Mission for Western Sahara (MINURSO),[95] annual Resolutions of the Security Council, monitoring of the development of the situation,[96] a special position of Secretary-General’s Personal Envoy for Western Sahara, as well as other UN institutions.[97] The second point is the commitment shown to international law, and hence the reluctance to accept Morocco’s territorial claims, despite the long-term occupation. Moreover, the Sahara Arabic Democratic Republic obtained the recognition of more than 80 UN Member States, and has been a Member of the African Union[98] since 1984. And the issue of the referendum for Western Sahara, which was first raised in 1975 – i.e. forty years ago – is still on the agenda, as it is still considered the major instrument by which the right to self-determination might be exercised. Obviously, it is a referendum that will determine the future of Western Sahara. Moreover, the MINURSO surveillance over the process (as in the case of Southern Sudan), will leave no room for allegations regarding the transparency of the process.

3.2. Namibia

The case of South West Africa (Namibia) is another illustration of the role the international community plays in terms of exercise of the right to self-determination. While this country was included in the League of Nations trusteeship system, after the League’s dissolution and establishment of the UN, South Africa contested the trusteeship mandate and occupied the territory of Namibia. The legal issues of the trusteeship mandate were in focus in a number of cases brought before the International Court of Justice. The first case was initiated at the request of the UN General Assembly[99] for an advisory opinion as to the legal status of South West Africa, and the obligations of South Africa under the trusteeship mandate.[100] In its decision of 11 July 1950, the International Court of Justice confirmed the trusteeship obligations of South Africa, as well as the surveillance competences of the UN General Assembly, albeit within the limits of the mandate issued by the League of Nations. The Court stressed obligations for South Africa to contribute to the economic and cultural well-being of the population on the mandate territories, as well with regard to trusteeship control mechanisms, transferred to the UN.[101] However, the rather dubious formulae of the Court’s decision left gaps through which South Africa could avoid transfer of the territory of Namibia to the newly-created system of trusteeship, thus “sanctioning the actions of South Africa as regards annexation of this territory”.[102] After three more Court rulings[103] dealing with procedural aspects of the case, the UN General Assembly cancelled South Africa’s mandate, and declared the UN’s responsibility for Namibia.[104]

On 29 March 1969, the UN Security Council called for the South African government “to immediately free this territory from its administration”.[105] In the Resolutions that followed[106], the Security Council insisted on its demands being met, and created a special sub-committee to study possible measures by which to achieve effective implementation of those demands, with the issue of the right to self-determination of the people of Namibia thus brought to the fore. At the same time, the Security Council asked for another Advisory Opinion from the ICJ as regards the legality of South Africa’s continuing occupation of Namibia.[107] The Court’s ruling declared the occupation illegal, demanded immediate withdrawal of the South Africa administration from Namibia, and declared illegal all acts of law adopted by South Africa in the name of Namibia and as regards Namibia.[108]

In parallel, the General Assembly adopted a number of Resolutions confirming the right of the people of Namibia to self-determination and independence, as well as the legality of its struggle against foreign occupation.[109] Moreover, it officially recognised the SWAPO Party of Namibia[110] as the “authentic representative” of that country’s people.[111] In 1978, the UN Security Council adopted a Resolution that contained the UN plan designed to achieve the independence of Namibia.[112] After a decade of South African resistance to this plan, and increasing international pressure including the boycotting of South Africa by the international community, the negotiations over settlement of the conflict finally started in May 1988. In late 1988, those negotiations bore fruit in a number of agreements confirming commitment to the UN plan for the decolonisation. South Africa agreed to Namibian independence in exchange for the removal of Cuban troops from Angola.[113] The following year, the South Africa occupation forces were withdrawn, and their place was taken by the military and civilian UN missions entering Namibia, and preparing the ground for UN-scrutinised general elections, which were held in November 1989. The independence of Namibia was officially proclaimed on 21 March 1990.

3.3. Crimea

The international community was rather unanimous in its assessment of the Crimean events, making statements that left its attitude clear. All the major EU institutions made statements, expressing intolerance of Russian military aggression against a sovereign European state. In its statement of 1 March 2014[114], the High Representative of the European Union for Foreign Affairs and Security Policy emphasised the need to respect Ukrainian sovereignty and territorial integrity, within the internationally accepted borders; as well as the fact that Russian military actions constitute a breach of general international law and Russian bilateral obligations towards Ukraine. Russia was thus called upon to “promote its views through peaceful measures”.[115]

The conclusion of the Council of the European Union of 3 March 2014[116] provided strong condemnation of “the clear violation of Ukrainian sovereignty and territorial integrity by acts of aggression by the Russian armed forces”, claiming these actions to be a clear breach of basic documents of international law,[117] and also calling for Russia “to immediately withdraw its armed forces to the areas of their permanent stationing”.[118] The European Parliament adopted a Special Resolution,[119] in which it claimed Russian behaviour as “acts of aggression” committed in violation of the sovereignty and territorial integrity of Ukraine, as well as against international law.[120] A similar message was echoed by almost all leaders of European countries, including UK Prime Minister David Cameron and German Chancellor Angela Merkel.[121] French President François Hollande at his joint press conference with Italian Prime Minister Matteo Renzi repeated the same idea, calling the Crimean farce a “pseudo-referendum”.[122] To be mentioned separately is the Joint Statement of the Visegrád Group,[123] in which former victims of Soviet aggression emphasised that “The Czech Republic, Hungary, Poland and Slovakia are appalled to witness a military intervention in 21st-century Europe akin to their own experiences in 1956, 1968 and 1981”.[124]

Other international organisations also joined in with the general condemnation of the Russian aggression. On 7 March 2014, PACE’s Standing Committee expressed its full support for the “territorial integrity and national unity of Ukraine”. It therefore strongly condemned the violation by the Russian Federation of the country’s sovereignty and territorial integrity, noting that “the actions of Russian military forces in the Crimean peninsula, as well as explicit threats of military actions in the rest of Ukraine’s territory, are in direct violation of international law, including the UN Charter, the OSCE Helsinki Final Act, the Statute of the Council of Europe, as well as Russia’s accession commitments.”[125]

The same estimation of the Crimean events was characteristic for all the world’s major powers. In particular, the official position of the United States was declared by President Barack Obama, who confirmed that Washington continues to consider Crimea a part of Ukraine, and the Crimean referendum a violation of the Ukrainian Constitution and of international law.[126] The French Foreign Minister Laurent Fabius, calling the Crimean referendum illegal, emphasised that it was taking place under the threat of the Russian occupying forces, which made it “all the more illegal”. Separately, he stressed the obligation of Russia to respect Ukraine’s sovereignty and territorial integrity, as well as Russia’s erga omnes obligations as a Permanent Member of the Security Council.[127]

The illegal nature of the coming referendum in Crimea was so obvious that its announcement, and the subsequent request for international observers[128], were simply rejected,[129] leaving the event without any official observation mission. The international reaction to the referendum, followed by Putin’s “Crimean speech” and the signing of the “reunification” Treaty between Crimea and Russia was also unanimous. On 15 March 2014, the UN Security Council prepared a Resolution condemning the Crimean referendum, which was naturally vetoed by Russia, with China abstaining but all 13 other Members in support. However, the issue was followed by the UN General Assembly, which adopted a Resolution entitled “Territorial integrity of Ukraine”.[130] In this document, the international community expressed its commitment “to the sovereignty, political independence, unity and territorial integrity of Ukraine within its internationally recognized borders”.[131] The General Assembly also declared the Crimean referendum as lacking in validity and thus unable to “form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol”. Moreover it called “upon all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status”.[132]

In a number of documents, major EU institutions reaffirmed their previous attitude, declaring Crimean events to be acts of Russian aggression, and the Crimean referendum illegitimate and void. In particular, the European Parliament emphasised that “an illegal and illegitimate referendum was organised on 16 March 2014 … and was conducted under the control of Russian troops”.[133] Furthermore, it stated that: “Russia’s annexation of the Crimean Peninsula represents, beyond any doubt, a grave violation of international law which undermines trust in international instruments, including the agreements on disarmament and on non-proliferation of nuclear weapons”.[134] Separately, the Resolution stressed that unanimous international condemnation of Russian annexation, as well as a number of restricting steps deployed against Russia “are unequivocal signs of the Russian Federation’s growing isolation at international level that should be given all due consideration by the Russian authorities if Russia wants to remain a credible international player”.[135] Yet another focus of the Resolution was the fate of the Tatar community in Crimea, as a number of atrocity cases were reported. The Parliament stressed “the responsibility of the Russian Federation, under the Fourth Geneva Convention, to protect all civilians in the occupied territories”.[136] The reference to the Geneva Convention is a clear reference to a “law of war” perspective, which emphasises the status of Crimea as occupied territory, and hence the special attention needing to be paid to the protection of civilians.

In its conclusions of 14 April 2014, the Council of the European Union welcomed the adoption of UN General Assembly Resolution No. 68/262 on Ukraine, and expressed the “EU’s strong condemnation of the illegal annexation of Crimea and Sevastopol to the Russian Federation, and will not recognise it”.[137] The Council also reiterated its strong support for Ukraine’s unity, sovereignty, independence and territorial integrity, and called upon Russia “to do likewise and to repudiate the latest lawless acts … to call back its troops from the Ukrainian border”.[138] In its conclusions on Ukraine of 20 March 2014[139], the highest EU institution, the European Council, emphasised that the EU “remains committed to uphold the sovereignty and territorial integrity of Ukraine. The European Council does not recognise the illegal referendum in Crimea, which is in clear violation of the Ukrainian Constitution. It strongly condemns the illegal annexation of Crimea and Sevastopol to the Russian Federation and will not recognise it”.[140]

At its Parliamentary Assembly[141], the Council of Europe stressed the false pretext upon which the Russian occupation had taken place, given that there was no “imminent threat to the rights of the ethnic Russian minority” in Ukraine, “including, or especially, in Crimea”. It made a direct connection between the Crimean events and Russian military intervention, obviously claiming that the Crimean referendum was “unconstitutional”, and its results “implausible”. PACE thus declared that “the outcome of this referendum and the illegal annexation of Crimea by the Russian Federation therefore have no legal effect and are not recognised by the Council of Europe”; and it called upon Russia to withdraw its troops from Crimea immediately.[142] Another leading European organisation, the OSCE, also condemned the Russian annexation of Crimea and emphasised that the referendum there was a clear legal violation. Moreover, the referendum was “conducted in an environment that could not be considered remotely free and fair”.[143]

The reaction of the leading world powers to the Crimean referendum and the next day’s official proclamation of annexation was rather similar – condemnation of Russian aggression and a refusal to recognise the Crimean “pseudo-referendum”. To avoid excessive details and sum up the world’s reaction, it suffices to quote the joint statement made by the G7 leaders in their Hague meeting of 24 March 2014:

We condemn the illegal referendum held in Crimea in violation of Ukraine’s constitution. We also strongly condemn Russia’s illegal attempt to annex Crimea in contravention of international law and specific international obligations. We do not recognize either.[144]

In concluding this part of the article, it is important to emphasise that the off-hand “Crimean referendum” did not fool anybody. The reaction of major international organisations and leading world powers was unanimous regarding the condemnation of Russian aggression and the non-recognition of the Crimean referendum. Moreover, the disgusting manner in which it was conducted was quite often emphasised as having nothing to do with democracy, international law or the right of self-determination. Indeed, the facts evidently demonstrate the rectitude of the Crimean case being qualified by the international community using such words as “aggression”, “occupation” and “annexation”. As was stressed in the OSCE Parliamentary Assembly’s “Baku Declaration”: “the Russian Federation has, since February 2014, violated every one of the ten Helsinki Principles in its relations with Ukraine, some in a clear, gross and thus far uncorrected manner”,[145] thus violating basic principles of international law and challenging Europe’s entire security architecture.

The cases of Western Sahara and Namibia referred to demonstrate how the international community usually treats cases of annexation and occupation. Irrespective of the duration of an occupation, occupiers are not recognised as legitimate sovereigns over annexed territory. Sooner or later this situation has to lead to the restoration of international law and the end of the occupation. This practice implies that the case of Crimea is not over. The unanimous reaction of the international community, and the growing burdening of Russia with international sanctions, offer clear signals that basic principles of international law will be preserved, as the international community will not tolerate their breach. It remains to be seen how long Russia will last under the sanctions, but the world has already had a similar experience, which eventually brought an end to South Africa’s occupation of Namibia. Thus, the road is known, as is the destination.

Conclusions

The issues of territory and sovereignty make up the essence of modern international law, ensuring a major contemporary focus on rights of self-determination and secession. The existing dichotomy of states’ territorial integrity and the principle of peoples’ right to self-determination has always lain at the heart of the most difficult puzzles facing post-War international relations. The delicacy of the problems has combined with international practice to promote the development of stable and clear standards allowing distinctions to be drawn between cases of genuine national movements struggling for self-determination and fakes by which a neighbour’s interference or aggression is masked.

These standards often relate to the nature of the political processes taking place on the territory in question, to the level of popular support enjoyed by secession movements and to the transparency of legal procedures, with a referendum enjoying a special status in this process, while also demanding special requirements. With the traditional priority of vox populi over state ambitions, referendum procedures have always been of utmost importance. Compliance with the principles of democracy and freedom and transparency of the voting process have always represented an essential and final argument in secession disputes.

From this perspective the case of Crimea is unique in the sense that it managed to ensure non-compliance with every single standard – something hard to observe in any other case. The absence of any secessionism from the Crimean political agenda over the 24-year period of Ukrainian independence, the strange and marginal nature of the people appointed as “the Crimean leaders” by the Russian occupation forces, the phantasmagoria of their election by way of street meetings and under the guns of Russian soldiers in a captured building of the Crimean Parliament, and the presence of unidentified “little green men” in February-March 2014 – that is the background to what is called “the Crimean referendum”. Hence, a closer look at this event reveals that it does not have anything in common with either democracy or the will of the Crimean people. Neither has it anything in common with international standards applied in the case of referenda. Organised in ten days, with three changes of referendum date and complete transformation of the referendum question in the “preparation period”, this event was neither transparent nor free, as the Peninsula had already been occupied by troops from Russia, which had resorted to terror against inhabitants.

The international reaction to the “Russian Spring” in Crimea was definite and unanimous – it is a clear case of Russian aggression against Ukraine and occupation of part of its sovereign territory. The farce of the Crimean referendum could not fool anybody, and its disgusting procedural aspects only increased the scorn directed at its organisers. This accounts for the international community’s treatment of this case in line with well-known practice – with sanctions imposed, and efforts made to isolate the aggressor. Furthermore, existing practice also obviously gives a clue as to how the Crimean story will end up. This leaves – as the only intrigue remaining in the case – the question of when the de-occupation of Crimea will finally take place.

Abstract: This article studies the Russian annexation of Crimea from the perspective of international law, with its developed standards for the exercising of self-determination and secession rights. It argues that the Russian annexation is an evident case of military aggression and unlawful occupation, which has nothing to do with either self-determination or secession rights. The case of Crimea is unique, in the sense that it managed to violate every single standard, something that can hardly be observed in any other case. The absence of any secessionism on the Crimean political agenda, the strange and marginal people appointed as “Crimean leaders” by the Russian occupation forces, the phantasmagoria of their election at street meetings, and unidentified “little green men” – that was the background to what is called “the Crimean referendum”. But this event emerged as having nothing to do with democracy, or with the will of the Crimean people. Neither did it have anything in common with the international standards for a referendum. Organised in ten days, it was neither transparent nor free, as the Peninsula had already been occupied by the Russian troops starting the terror against the inhabitants.

Keywords: Occupation, Crimea, referendum, international law, Ukrainian crisis.

[*] Oleksandr Moskalenko, Ph.D. in international law, Associate Professor at the V.N. Karazin Kharkiv National University, Fellow of the Krzysztof Skubiszewski Fellowship Program.

[1] H. Larsen, Great Power Politics and the Ukrainian Crisis: NATO, EU and Russia after 2014 (Report 2014:18, Copenhagen: DIIS, Danish Institute for International Studies), https://www.diis.dk/en/research/great-power-politics-and-the-ukrainian-crisis [accessed: 30.09.2014].

[2] The name of Bangladesh at that time.

[3] The total number of seats was 313.

[4] In 1971 Sheikh Mujibur Rahman became the first President of the independent Bangladesh.

[5] И. Блищенко, Ж. Дориа, Прецеденты в международном публичном и частном праве, Издательство МНИМП, Москва: 1999, pp. 46–51.

[6] R. Young, The Breakup of Czechoslovakia, Research paper no. 32. Institute of Intergovernmental relations. Queen’s University Kingston, Ontario: 1994, p. 2.

[7] Encyclopedia Britannica, http://global.britannica.com/biography/Vaclav-Havel [accessed: 30.09.2014].

[8] R. Young, supra note 6, p. 9.

[9] Ibidem.

[10] The Road to the European Union. Vol. 1: The Czech Republic and Slovakia, J. Rupnik, J. Zielonka (eds.), Manchester University Press, Manchester: 2003, p. 24.

[11] Václav Havel, Czech statesman and playwright, dies at 75, BBC (18.12.2011), http://www.bbc.com/news/world-europe-16236393 [accessed: 30.09.2014].

[12] A Different View (19.01.2008).

[13] Gottlieb Duttweiler Prize in 1990, Philadelphia Liberty Medal in 1994, Gandhi Peace Prize in 2003, Giuseppe Motta Medal in 2008, honorary doctorate from Institut d’études politiques de Paris and a member of the French Académie des Sciences Morales et Politiques from 2009.

[14] R. Young, supra note 6, p. v.

[15] Th. Draper, A New History of the Velvet Revolution, 2 (XL) The New York Review of Books (14.01.1993), pp. 14–20.

[16] M. Bookman, The Divergent Break-ups of Yugoslavia and Czechoslovakia, 2 Journal of Peace Research 31 (1994), p. 178; M. Kraus, The End of Czechoslovakia: International Forces and Factors, in: M. Kraus & A. Stanger (eds.), Irreconcilable Differences? Explaining Czechoslovakia’s Dissolution, Lowman and Littlefield Publishers Inc., Oxford: 2000, p. 207.

[17] A. Pavkovic & P. Radan, Creating New States: Theory and Practice of Secession, Ashgate Publishing Ltd., Hampshire: 2007, p. 75.

[18] A. Innes, Czechoslovakia: The Short Goodbye, Yale University Press, New Haven & London: 2001, pp. 172–173.

[19] R. Havlova, The ‘Velvet Divorce’ of Czechoslovakia as a Solution to a Conflict of Nationalisms, in: A. Guelke (ed.), Democracy and Ethnic Conflict: Advancing Peace in Deeply Divided Societies, Palgrave Macmillan, New York: 2004, p. 110.

[20] Th. Draper, The End of Czechoslovakia, 3 (XL) The New York Review of Books (28.01.1993), pp. 20–21.

[21] R. Young, supra note 6, p. 9.

[22] R. Barbieri, Czechoslovakia’s Movement towards a new constitution: the Challenge of Establishing a Democratic, Multinational State, 3(1) N.Y. L. Sch. J. Int’l & Comp. L. (1992), pp. 94–124.

[23] G. Wightman, The Czechoslovak Parliamentary Elections of 1992, 12(1) Electoral Studies (1993), pp. 83–86.

[24] Young, supra note 6, p. 15–16.

[25] Ibidem, p. 18.

[26] O. Hejma, Jak jsem rozdeloval Ceskoslovensko, MF Dnes (19.12.2002), http://www.klaus.cz/clanky/26 [accessed: 30.09.2014].

[27] J. Pehe, The Referendum Controversy in Czechoslovakia, RFE/RL Research Report 1:3 (30.10.1992), pp. 35–37.

[28] Havlova, supra note 19, p. 111.

[29] Pehe, supra note 27.

[30] Biography of Mr. Salmond, http://www.snp.org/people/alex-salmond [accessed: 30.09.2014].

[31] Biography of Ms. Sturgeon, http://www.snp.org/people/nicola-sturgeon [accessed: 30.09.2014].

[32] Website of the Scottish National Party, http://www.snp.org/about-us [accessed: 30.09.2014].

[33] Ceremony of signing the Treaty of “Reunification” of Crimea and Sevastopol into Russia, http://www.kremlin.ru/news/20626#sel= [accessed: 30.09.2014].

[34] Prime Minister with the nickname “Goblin”, http://www.svoboda.org/content/article/25281940.html [accessed: 30.09.2014].

[35] Ukrainian law only provides for all-Ukrainian political parties.

[36] Supra note 34.

[37] http://www.newsru.com/world/19mar2014/chaly.html [accessed: 30.09.2014].

[38] http://lb.ua/news/2014/02/24/256955_rossiya_beret_vlast_sevastopole.html [accessed: 30.09.2014].

[39] Biography of Vladimir A. Konstantinov, http://file.liga.net/person/920-vladimir-konstantinov.html [accessed: 30.09.2014].

[40] Ibidem.

[41] Parliamentary Assembly of the Council of Europe Resolution No. 1988 (2014) of 09.04.2014: “Recent developments in Ukraine: threats to the functioning of democratic institutions”, http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20873&lang=en [accessed: 30.09.2014].

[42] O. Zadorozhny, Annexation of the Crimean peninsula by the Russian Federation: impact on international legal order, 6 Evropský Politický A Právní Diskurz (2014), p. 126.

[43] Passed by Parliament on 14.11.2013, received Royal Assent on 17.12.2013, http://www.scottish.parliament.uk/parliamentarybusiness/Bills/61076.aspx [accessed: 30.09.2014].

[44] Scottish Independence Referendum Bill, http://www.scottish.parliament.uk/parliamentarybusiness/Bills/61076.aspx [accessed: 30.09.2014].

[45] Scottish Independence Referendum. Report on the referendum held on 18 September 2014 of December 2014 ELC/2014/02, http://www.electoralcommission.org.uk/find-information-by-subject/elections-and-referendums/past-elections-and-referendums/referendums [accessed: 30.09.2014].

[46] Ibidem, point 6.59.

[47] Ibidem.

[48] Government of Quebec, Québec-Canada: “A New Deal. The Québec Government Proposal for a New Partnership Between Equals: Sovereignty-Association”, November 1979.

[49] The Referendum Act of 1978.

[50] J. Boyer, Lawmaking by the People: Referendums and Plebiscites in Canada, Butterworths, Toronto–Boston: 1982.

[51] The Quebec Referendums, House of Commons library, Research paper no. 13/47 (25.07.2013), http://researchbriefings.parliament.uk/ResearchBriefing/Summary/RP13-47 [accessed: 30.09.2014].

[52] Drastic Remedies in Québec, New York Times (30.10.1995).

[53] Supra note 51, p. 12.

[54] Ibidem, pp. 13–17.

[55] Referendum of October 30, 1995, Elections Québec press notice, 13.05.1996.

[56] The Comprehensive Peace Agreement signed between Sudan and Sudan People’s Liberation Movement.

[57] The Referendum Act.

[58] UNDP (the United Nations Development Programme).

[59] Audit of UNDP South Sudan. Support to Southern Sudan project. Directly Implemented Project No. 74669. Report No. 1119, http://www.undp.org/ [accessed: 30.09.2014].

[60] http://www.aljazeera.com/news/africa/2010/11/2010111513340303230.html [accessed: 30.09.2014].

[61] Sudan referendum web-site: http://southernsudan2011.com/ [accessed: 30.09.2014].

[62] http://www.undp.org/content/undp/en/home/presscenter/pressreleases/2010/12/23/undp-delivers-ballots-for-historic-southern-sudan-referendum.html [accessed: 30.09.2014].

[63] Sudan referendum web-site: http://southernsudan2011.com/ [accessed: 30.09.2014].

[64] United Nations Development Programme Southern Sudan Annual Report. Official website of United Nations Development Programme: http://www.undp.org/.

[65] EU elections observation mission. Final report. Southern Sudan Referendum of 9–15 January 2011, http://eeas.europa.eu/eueom/missions/2011/sudan/index_en.htm [accessed: 30.09.2014].

[66] Ibidem.

[67] Speech of Ban Ki-Moon, addressing to the 47th Security Conference convened in Munich (Germany) (05.02.2011), http://www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID=1066#.Vf7H2uxp3YQ [accessed: 30.09.2014].

[68] Declaration by the High Representative, Catherine Ashton, on behalf of the European Union, on the final referendum results on Southern Sudan’s self-determination. Brussels, 6278/11, PRESSE 21 (07.02.2011) http://www.consilium.europa.eu/ [accessed: 30.09.2014].

[69] Official statement. Daily Compilation of Presidential Documents of 07.02.2011, https://www.whitehouse.gov/ [accessed: 30.09.2014].

[70] Council Conclusions on Sudan. 3065th Foreign Affairs Council meeting of 31.01.2011. Brussels. http://eeas.europa.eu/sudan/news/index_en.htm [accessed: 30.09.2014].

[71] Joint statement of witnesses of Sudan’s Comprehensive Peace Agreement of 09.02.2011 https://appablog.wordpress.com/2011/02/09/witnesses-of-sudan%E2%80%99s-comprehensive-peace-agreement-in-joint-statement-confirm-acceptance-of-referendum%E2%80%99s-result-in-favour-of-southern-sudan%E2%80%99s-secession/ [accessed: 30.09.2014].

[72] Art. 73 of the Constitution of Ukraine. Official portal of the Ukrainian Parliament (Verkhovna Rada) http://rada.gov.ua/ [accessed: 30.09.2014].

[73] The European Commission for Democracy through Law (Venice Commission) Opinion 762 / 2014 (21.03. 2014), www.venice.coe.int [accessed: 30.09.2014].

[74] Zadorozhny, supra note 42, p. 127.

[75] Point 14 European Parliament Resolution of 13.03.2014 on the invasion of Ukraine by Russia (2014/2627(RSP)); Point 12 European Parliament Resolution of 17.04.2014 on Russian pressure on Eastern Partnership countries and in particular the destabilisation of eastern Ukraine (2014/2699(RSP)).

[76] UNSC Discusses Human Rights Violations And Freedom Of Press In Crimea. Haberler (01.04.2014).

[77] OSCE Parliamentary Assembly “Baku declaration” of 28.06–2.07.2014, https://www.oscepa.org/meetings/annual-sessions/2014-baku-annual-session [accessed: 30.09.2014].

[78] UNIAN news agency, http://www.unian.net/politics/894262-v-kryimu-dlya-provedeniya-referenduma-napechatayut-bolee-2-millionov-byulleteney.html [accessed: 30.09.2014].

[79] Central Election Commission of Ukraine, http://www.cvk.gov.ua/ [accessed: 30.09.2014].

[80] Mejilis to boycott Crimean referendum, Ukrinform.ua (06.03.2014), http://www.ukrinform.ua/eng/news/mejlis_to_boycott_crimean_referendum_318219 [accessed: 30.09.2014].

[81] A. Kondrashov, Crimea. The Way Back to the Motherland, https://www.youtube.com/watch?v=t42-71RpRgI [accessed: 30.09.2014].

[82] European Parliament Resolution of 17.04.2014 on Russian pressure on Eastern Partnership countries and in particular the destabilisation of eastern Ukraine (2014/2699(RSP)), p. A.

[83] Supra note 73.

[84] http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282007)008-e [accessed: 30.09.2014].

[85] C. Саяпин, Современные вызовы международному праву, http://www.zakon.kz/4681800-sovremennye-vyzovy-mezhdunarodnomu.html [accessed: 30.09.2014].

[86] Usually the figure of 34% of the “reunification” supporters is mentioned by the Mejilis (senior executive body) of the Crimean Tatars, as well as by certain other sources. E.g. Andrey Illarionov (Senior fellow of Cato Institute) http://guardianlv.com/2014/03/crimea-referendum-34-percent-not-97-percent-says-former-russian-government-adviser/ [accessed: 30.09.2014].

[87] David L. Phillips (Director of the Program on Peace-building and Rights, Columbia University’s Institute for the Study of Human Rights) Crimea’s Technically Flawed Referendum, http://www.huffingtonpost.com/david-l-phillips/crimeas-technically-flawe_b_4992908.html [accessed: 30.09.2014].

[88] GA Res. 2229 (XXI); GAOR Supp. 16. UN Doc. A/6316 (1966).

[89] Report of the UN visiting mission to Spanish Sahara. UN Doc. A/10023/Add.5.Annex. (1975).

[90] Advisory Opinion on Western Sahara (1975), ICJ Rep. 12.

[91] Ibidem.

[92] UN Security Council Resolutions No. 658 (1990) of 27.06.1990, No. 725 (1991) of 31.12.1991.

[93] UN Security Council Resolution No. 690 (1991) of 29.04.1991.

[94] Блищенко & Дориа, supra note 5, pp. 85–93.

[95] By UN Security Council Resolution No. 2218 of 28.04.2015 the MINURSO mandate was extended until 30.04.2016.

[96] Latest Resolutions No. 1871 of 30.04. 2009; 1920 of 30.04.2010; 1979 of 27.04.2011; 2044 of 24.04. 2012.

[97] E.g. UN High Commission for Refugees.

[98] Former Organisation of African Unity.

[99] Request for an Advisory Opinion of 06.12.1949.

[100] A League of Nations mandate of 17.12.1920.

[101] International Court of Justice Advisory Opinion of 11.07.1950, http://www.icj-cij.org/ [accessed: 30.09.2014].

[102] Блищенко & Дориа, supra note 5, p. 101.

[103] International Court of Justice Advisory Opinion of 7.07.1955 and 01.07.1956, decision of 18.07.1966. http://www.icj-cij.org/ [accessed: 30.09.2014].

[104] UN General Assembly Resolution No. 2145(XXI) of 27.10.1966.

[105] UN Security Council Resolution No. 264 (1969) of 29.03.1969.

[106] UN Security Council Resolution No. 269 (1969) of 04.10.1969; 276 (1970) of 30.01.1970; 284 (1970) of 29.07.1970, http://www.un.org/en/sc/documents/resolutions/ [accessed: 30.09.2014].

[107] Request of 29.07.1970.

[108] International Court of Justice Advisory Opinion of 21.06.1971, http://www.icj-cij.org/ [accessed: 30.09.2014].

[109] UN General Assembly Resolution No. 2678 of 09.12.1970.

[110] A national liberation party, which was founded in 1962, and fought for the independence of Namibia.

[111] UN General Assembly Resolution No. 3111(XXVIII) of 12.12.1973

[112] UN Security Council Resolution No. 435 of 29.09.1978.

[113] The so-called “Tripartite Accord” of 22.12.1988 – between Angola, South Africa and Cuba.

[114] Statement by EU High Representative Catherine Ashton on the developments in Ukraine’s Crimea. No. 140301/01 of 01.03.2014, www.eeas.europa.eu [accessed: 30.09.2014].

[115] Ibidem.

[116] Council conclusions on Ukraine. Foreign Affairs Council meeting of 03.03.2014 http://www.consilium.europa.eu/ [accessed: 30.09.2014].

[117] Ibidem, p. 1.

[118] Ibidem, p. 2.

[119] European Parliament Resolution of 13.03.2014 on the invasion of Ukraine by Russia (2014/2627(RSP)).

[120] Ibidem, p. A.

[121] Ukraine crisis: David Cameron joins Angela Merkel in expressing anxiety and warns that ‘the world is watching’, Independent (01.03.2014), http://www.independent.co.uk/news/uk/politics/ukraine-crisis-david-cameron-joins-angela-merkel-in-expressing-anxiety-and-warns-that-the-world-is-9162830.html [accessed: 30.09.2014].

[122] http://www.ambafrance-au.org/Crimea-referendum-is-illegal-says [accessed: 30.09.2014].

[123] Statement of the Prime Ministers of the Visegrad Countries on Ukraine of 04.03.2014 http://www.visegradgroup.eu/calendar/2014/statement-of-the-prime [accessed: 30.09.2014].

[124] Ibidem.

[125] PACE’s Standing Committee statement of 07.03.2014, http://assembly.coe.int/nw/xml/News/News-View-en.asp?newsid=4908&lang=2 [accessed: 30.09.2014].

[126] Ukraine crisis: ‘Illegal’ Crimean referendum condemned, BBC, 06.03.2014, http://www.bbc.com/news/world-europe-26475508 [accessed: 30.09.2014].

[127] http://www.ambafrance-au.org/Crimea-referendum-is-illegal-says [accessed: 30.09.2014].

[128] http://www.reuters.com/article/2014/03/10/ukraine-crisis-referendum-osce-idUSL6N0M73AP20140310 [accessed: 30.09.2014].

[129] http://uk.reuters.com/article/2014/03/11/uk-ukraine-crisis-referendum-osce-idUKBREA2A1RD20140311 [accessed: 30.09.2014].

[130] General Assembly Resolution 68/262 of 27.03. 2014, http://www.securitycouncilreport.org/un-documents/ukraine/ [accessed: 30.09.2014].

[131] Ibidem, p. 1.

[132] Ibidem, p. 5–6.

[133] European Parliament Resolution of 17.04.2014 on Russian pressure on Eastern Partnership countries and in particular the destabilisation of eastern Ukraine (2014/2699(RSP)), p. A.

[134] Ibidem, p. N.

[135] Ibidem, p. 10.

[136] Ibidem, p. 12.

[137] Conclusions of Council of European Union. Relations with Ukraine No. 8893/14 of 14.04.2014, http://www.consilium.europa.eu/ (p. 2) [accessed: 30.09.2014]

[138] Ibidem, p. 1.

[139] European Council Conclusions on Ukraine of 20.03.2014, http://www.consilium.europa.eu [accessed: 30.09.2014]

[140] Ibidem, p. 5.

[141] Supra note 41.

[142] Ibidem, pp. 15–16.

[143] Supra note 77.

[144] The Hague Declaration following the G7 meeting on 24.03.2014 http://europa.eu/rapid/press-release_STATEMENT-14-82_en.htm [accessed: 30.09.2014].

[145] Supra note 77, p. 4.

Revisiting the Principle of Self-Determination
Vladislav Tolstykh[*]

doi: 10.7366/9014Crimea5

Introduction: the consensual character of the principle of self-determination

In the articles “Reunification of Crimea with Russia: A Russian Perspective”[1] and “Three ideas of self-determination in international law and the reunification of Crimea with Russia”[2], I tried to prove the necessity for account to be taken, not only of the ideas of sovereignty and human rights, but also that of the general will. I considered the theoretical basis underpinning this idea, and arguments adduced in favour of its normative nature. However, admission of the fact that the safeguard-clause in the Declaration on Friendly Relations refers to the general will and, accordingly, grants the right of secession to people excluded from the process of its formation and implementation, does not disavow the normative consequences of the two other ideas. Such consequences, for example associated with the principle of non-intervention or the exercise of territorial jurisdiction, can come into direct conflict with consequences of the idea of general will. This conflict constitutes a matrix for many political and legal debates of recent decades, and primarily those relating to the processes of the disintegration and formation of states.

The priority of ideas can hardly be established without going beyond legal texts. For these texts are quite vague and express several principles simultaneously – as in the case of the Declaration on Friendly Relations. Practice also cannot serve as a reliable tool because of its inconsistency; in most cases legal qualification does not define a political decision, but is rather determined by one. This inconsistency transforms dialectically into consistency. In recognising that one people having the right to secede, while denying other people the same right, the international community in fact concludes an agreement whose subject is not only a mode, but also a normative aspect, of settlement. The international community thereby exercises its usual function of legislator, though acting ad hoc. The principle of self-determination therefore appears as an alternative norm, specified in each particular case on political expediency grounds. Thus, the decay of the USSR and Yugoslavia and the secession of Kosovo, illegitimate from the standpoint of sovereignty, have been justified successfully by the idea of general will; while conversely, a questionable policy that several states have pursued towards national minorities – illegitimate from the standpoint of the general will – has gained protection thanks to the idea of sovereignty. Thus the solution is dictated by pure voluntarism, with any attempts to establish essential differences between the situations in Kosovo and Crimea, operating the data about the number of victims or the argument about the “intermediate” presence of the UN, seeming unconvincing, though they can create the illusion of the existence of rigid criteria which lie at such great depth that they cannot be articulated simply and unambiguously.

1. Main shortcomings of the consensual approach

The above approach has serious shortcomings. Firstly, an international community choosing between the idea of sovereignty that denies the right of secession (in Crimea), and that of the general will, which recognizes this right (in Kosovo), exercises constitutive function, and acts as the creator or destroyer of nations. In accordance with a more modest declarative theory, it would content itself with the fixing of facts. The problem lies, not only in the inability of the international community to examine particular issues thoroughly, but also in the estrangement of peoples from fates decided by external actors, and in an increasingly anonymous and undemocratic manner – in the offices of the Venice Commission, or at international tribunals or other similar bodies. Being deprived of a material basis, the consensus dictates rather than convinces. A. Carty writes about it as follows: “Since one opinion can only be as good as another and we must all tolerate one another’s difference, it is inevitable that those with less capacity to resist the opinions of the stronger will have to submit to the latter. The weaker parties recognize that they have to behave as the majority of the group have the habit of doing. Law comes in to express the conclusion of this process because the consensus reached can be sustained and effective only if it is subsequently legitimate to enforce it against those who are recalcitrant”.[3]

Second, the opportunism and the discretion of consensual decision are not compatible with principles of predictability and certainty, which ensure the formation of the international order, i.e. a stable and transparent system of social relations subject to the law. The consensus reflects, not the law, but the game of interests deployed in accordance with the “invisible hand” rule. Since the international community differs from the community recognised by Adam Smith in its extreme inequality of potentials and requests, victory in such a game does not necessarily fix a fair decision. It is quite possible that the player imposing its will on the others acts self-interestedly and to the detriment of the common good; the good of the national community whose fate is in question can remain outside the brackets, or be determined in line with the average.

Third, the consensual algorithm does not work when particular states are able to block or ignore the decision of majority. In some cases the international community has to accept or tolerate the violation of its will (the occupation of Tibet by China, the establishment of political alliances with former trust territories by the USA). World peace is therefore supported by the creation of black holes that disrupt the fabric of international law. In other cases, the reaction of the international community can be quite painful (the occupation of Namibia, the secession of Crimea). Sometimes there is a half-hearted attitude (the expansion of Israel). It should be stressed once again that the reaction of the international community is not strictly speaking provoked by the refusal to heed a norm, but rather by the rejection of a particular interpretation thereof, as conditioned by a different vision of the situation and its consequences. Here there is the problem of double standards, which can conserve their destructive potential for a long time.

Fourth, the interpretative consensus, even when achieved, does not answer substantial questions related to the nature of the state, minority rights, the relationship between international and national legal orders, etc., but offers a way of avoiding them. A good illustration is provided by the Advisory Opinion on Kosovo of 22 July 2010, in which the Court stated its unwillingness to deal with the issues of state construction. The lack of objectivity leads to a situation in which some entities are recognised as states without acquiring the basic attributes thereof (as with Croatia in the years 1991–1992), while others, despite being well-established political associations must long stay attached to the humiliating status of unrecognised state.

2. Limits of the consensual approach

The limited choice offered by consensus presents a separate problem. The first option – to conserve the new state in its borders established in accordance with the principle of uti possidetis iuris – often implies a tacit acceptance of ethnic cleansing and other forms of national discrimination (the disintegration of Yugoslavia). The second option – the assumption of full or de facto secession – is criticized as inciting civil wars. An interim solution is rather an exception than a rule.

This limited choice is largely due to the radicalisation of the discourse of self-determination. Almost all civil conflicts arising from the collapse of Yugoslavia and the USSR had one scenario: a) having acquired independence de jure, the new state sought to ensure its independence de facto, and to become distant from its former neighbours; b) for these purposes, it formulated revanchist slogans and took measures aimed at strengthening national identity and blocking the political and cultural ambitions of minorities, sometimes very numerous; c) having caused natural rejection, these actions stimulated secessionist tendencies; d) civil wars of varying degrees of intensity that broke out were then stopped by the intervention of the international community in favour of one of the parties to the conflict. Thus, problems of new states were almost always conditioned by the preference of a national-ethnic, but not a civil agenda.

The pattern of these situations leads to a conclusion about the presence of general cause; and this cause is seen to lie in the weakness of the state. Indeed, liberalism, human rights, the market economy and supra-nationality have weakened the state greatly; with the horrors of two World Wars ascribed to the state and tending to transform it into something extremely dangerous and suspicious. As a result, the state ceased to be the centre of attraction. Equally, human beings have not lost the kind of public instincts that push them to unite with others, or switch under force to other poles of attraction, be these religious communities, corporations, or ethnic groups. In this sense, nationalism is a face of globalism, with the common setting being negation of the state.[4] Having subordinated and defined the state, the ethnic group rejects all who are not consanguineous with it. A. de Benoist writes: “It can be said that mondialisation simultaneously destroys and creates collective identities. But collective forms which are engendered differ from previous forms. They are not balanced and organic, but aggressive and reactive”.[5]

The role of catalyst in ethnic conflicts is played by the ideology of humanism, with its unreserved dualism. There are no simple enemies, with whom it is possible to negotiate, only enemies of the human race. K. Schmitt mentioned “discriminatory tendencies inherent in the ideology of humanism” and said that it was: “Only together with the man, understood in the sense of absolute fullness of human nature, and in a form of the same concept, that his specific new enemy – a non-human – appears. Then, after the separation of non-humans from humans, a deeper division occurred in human history, the division of man into Superman and subhuman which took place in the nineteenth century”.[6]

3. General criticism of the consensual approach

While consensus is today deemed a necessary condition underpinning democracy and the foundation of public law, it was not always so important. Neither Plato nor Aristotle considered decisionmaking procedures to be criteria governing the correct form of government. Plato emphasised justice, understood as dedication to someone’s cause or matter[7], while Aristotle was devoted to the public good[8]. Catholic philosophy assigned even more limited value to consensus. Only Enlightenment figures, and above all Rousseau, put individual will at the forefront, and thus, as Hegel noted, transformed the state into a contract based on tyranny[9]. Today, consensus is an important element of prevailing political and legal concepts, including analytical and neo-positivist teachings. And, while critiques of consensus are hardly noticeable, they have been formulated and are quite serious.

In his 1893 encyclical Libertas praestantissimum donum Pope Leo XIII wrote:

When once man is firmly persuaded that he is subject to no one, it follows that the efficient cause of the unity of civil society is not to be sought in any principle external to man, or superior to him, but simply in the free will of individuals; that the authority in the State comes from the people only; and that, just as every man’s individual reason is his only rule of life, so the collective reason of the community should be the supreme guide in the management of all public affairs. Hence the doctrine of the supremacy of the greater number, and that all right and all duty reside in the majority. But… it is clear that all this is in contradiction to reason. To refuse any bond of union between man and civil society, on the one hand, and God the Creator and consequently the supreme Law-giver, on the other, is plainly repugnant to the nature, not only of man, but of all created things… Moreover, besides this, a doctrine of such character is most hurtful both to individuals and to the State. For, once ascribe to human reason the only authority to decide what is true and what is good, and the real distinction between good and evil is destroyed; honor and dishonor differ not in their nature, but in the opinion and judgment of each one; pleasure is the measure of what is lawful; and, given a code of morality which can have little or no power to restrain or quiet the unruly propensities of man, a way is naturally opened to universal corruption. With reference also to public affairs: authority is severed from the true and natural principle whence it derives all its efficacy for the common good; and the law determining what it is right to do and avoid doing is at the mercy of a majority. Now, this is simply a road leading straight to tyranny (paras. 15–16).[10]

M. Schooyans uses similar arguments:

Democracy is based on equality for all, freedom of thought, expression, association, etc.; however, when it is absolutized, the majority rule leads to the situation when the “values” of democracy emerge from the preponderance of some votes. As a result, values determined by this way have no chance to be ever recognized as universal, while they pretend to be extended to all in the name of some fiction – the general will considered to be expressed by the majority. Consequently, the majority rule in its direct interpretation is not only inadequate, but dangerous, if it is not accompanied by references to morality and such significant adjustments, as truth and solidarity (or sociability). The formal majority rule “legitimizes” a priori the tyranny of most numerous and their leaders. Moreover, the same rule implies a fundamental indifference in respect of truth and goodness… In an environment where everyone can choose «their» truth, freedom is not possible. Indeed, in such environment with the necessity I would like to bind the freedom of another by my own truth. The universality is used here as an agent of intolerance. This opens the road to imposed ideologies carrying the ersatz of truth, paralyzing the mind, suffocating the opposition, destroying the solidarity.[11]

4. Ways to solve the problem of consensuality in the sphere of self-determination

Regarding the institution of self-determination the problem of consensuality can be solved in several ways.

The first method involves specification of the principle of self-determination, i.e. a more precise definition of its components and their relationships. An unrealistic option is to leave only one of the components and void two others. Indeed, the emphasis on the idea of sovereignty leads back to the age of absolutism; the emphasis on human rights leads to anarchy, the emphasis on the general will leads to progressive multiplication of the number of states. The realistic option is thus the mutual adaptation of components in order for the most devastating consequences of their collision to be avoided. The methodological basis of adaptation could be the principle of proportionality, traditionally encompassing four criteria (legality, adequacy, necessity and proportionality sensu stricto). This approach would stimulate political arrangements based on mutual concessions (for example, granting autonomy or federal status to entities wanting to secede and/or granting official status to their languages). Among other things, this would give real meaning to the concept of internal self-determination. This decision, of course, does more to freeze centrifugal tendencies than to eliminate them; and even worse, it could pave the way for further disintegration in some cases. However, it puts conflict into the legal mainstream and presents a good alternative to civil wars and ethnic cleansing.

The second method involves restriction of the principle of uti possidetis and the formation of a rule that allows account to be taken of ethnic and cultural aspects as the boundaries of newly-formed nations are defined. This approach was used by the ICJ in its Advisory opinion in the Western Sahara case on 16 October 1975; the political issue of self-determination was resolved through analysis of economic, fiscal and religious ties of population. This is obviously a solution leaving room for various speculations and abuses, but, where the minority has a clearly defined identity and feels itself part of an ethnic group living in a neighbouring country, it can be effective. The experience of recent conflicts shows clearly that the principle of uti possidetis does not serve its original purpose, to prevent conflicts. Indeed, and on the contrary, it increasingly operates in a conflict-generating manner.

The third method involves the introduction of some idea more powerful than sovereignty, human rights and the general will, i.e. some “super-principle” defining the principle of self-determination and other norms. K. Schmitt saw such super-principle in Nomos, i.e. “the first measurement and delimitation of pastures […] acts which determine new spatial distribution and establish new boundaries and new spatial orders on the Earth form the basis of each new period and each new era of coexistence of peoples, nations and countries, governors and various government entities”.[12] The concept of Nomos involves a legal assessment of borders and political alliances public rather than private. While private qualification focuses on the determination of the validity of bilateral transactions (absence of defects of will, mutual benefit), public qualification is guided by the public interest expressed in the Nomos. Practically, this means that acts entailing fundamental changes in the existing balance of forces can be recognised as illegal. Conflicts associated with the collapse of the USSR can be defined as cracks in the foundation of the old Nomos which was established after the Second World War. Our task in this regard is to understand the design arising, define our place in it, and – most important of all – ensure the accordance of this Nomos with distributive justice.

The fourth method involves recognition of the legal effect of arguments based on moral considerations; in this sense it is possible to endow the Martens clause with the status of a conflict rule determining the choice of interpretation of the principle of self-determination. The requirement of consistency (the reverse side of which is the prohibition of double standards) is of particular importance. Thus the state acting in a certain manner in regard to a specific situation may be considered obliged to act in the same way in regard to a similar situation in the future (a kind of estoppel). Another demandable requirement is reciprocity: a state which reacts in a certain way to some situation in a foreign country, must allow for a similar reaction to the same situation arising within itself. Humanitarian interventionists should thus be open to humanitarian intervention themselves. Further, there is the requirement of impartiality: legal qualifications emanating from states which have their own interest in certain circumstances (a double agenda) can be questioned. Further, there is a need for respect and restraint, i.e. for the originality and self-sufficiency of another community to be recognised. In the framework of historical doctrine, an attempt to formalise this requirement was made by the Annales School and the transfer of its approach to the area of international and comparative law in fact proved very fruitful.[13]

Conclusions

The positive sense of the aforementioned solutions lies in the way they overcome the voluntarism inherent in the consensus. However, they do not solve the problem of constitutiveness, which, as already stated, entails people being deprived of a role in determining their own destiny, with this function then transferred into the hands of the international community. The danger here lies, not only in the undemocratic and discriminatory nature of this approach, but also in its isolation from reality. The law here does not follow the facts, but simply ignores them, forming its own parallel world. The clash of two worlds (factual and legal) causes perturbation that spreads like rings in water and is manifested in various legal non-senses (the concept of control, refusal to give a locus standi to unrecognised states, etc.).

The problem of constitutiveness can be solved by one means alone – the (at least partial) exclusion of the international community from problem-solving in respect of the formation and collapse of states. This means a return to classical principles of international law, in accordance with which states must confine themselves to fixation of external events, but not interfere in their development: either directly (by military invasion or the organising of coups) or indirectly (through economic, informational or another influence). These principles fit the nature of international law, that the law created by states cannot reciprocate by creating them. The rejection of external intervention in civil conflicts is very important. Such intervention on the side of the opposition under the pretext of protecting human rights or on the side of a government under the pretext of fighting terrorists, is almost always to the benefit of the weaker party. As a result, it equalises the potentials of belligerents and leads, not to a resolution of conflict, but to its aggravation; and not to respect for the will of the majority, which would otherwise determine the outcome of the conflict, but to the neglect thereof.

Abstract: The principle of self-determination is a norm including the three alternative ideas of sovereignty, the general will and human rights. The international community opts for one of these ideas in each particular case, on political expediency grounds. The principle is thus consensual, voluntaristic and constitutive. This approach has disadvantages: it involves the solution of major political issues by external actors; it is not compatible with the principles of predictability and certainty; and it does not provide answers to substantial issues. There are several strategies to overcome these problems: application of the principle of proportionality in order to mitigate contradictions between ideas, introduction of some super principle; limiting the application of uti possidetis iuris, and removal of the international community from the solution of problems relating to the formation and disintegration of states.

Keywords: international law, principle of self-determination, sovereignty, human rights, general will.

[*] Vladislav Tolstykh holds the Chair of International Law at the Novosibirsk State University (Russia). This paper was completed on 5 June 2014 and the websites cited were current as of that date. The Russian version of this article was published in Евразийский юридический журнал (4, 2015). The author is grateful to A. Belyaeva for help with translation.

[1] 13(4) Ch. J. Int’l L. 879 (2014), pp. 879–886.

[2] 75 Heidelberg J. Int’l L. 119 (2015), pp. 119–139.

[3] A. Carty, Philosophy of International Law, Edinburgh University Press, Edinburgh: 2007, p. 199.

[4] Another important point noted by N. Trubetskoy was that: “…The culture which in the opinion of the cosmopolitan has to dominate in the world and to abolish all other cultures belongs to the same specific ethnographic and anthropological unit whose domination the chauvinist dreams about” (Европа и человечество, 1920, http://gumilevica.kulichki.net/TNS/tns03.htm) [accessed: 01.09.2017].

[5] А. де Бенуа, Против либерализма: (к Четвертой политической теории), Амфора, Санкт-Петербург: 2009, p. 161.

[6] К. Шмитт, Номос Земли в праве народов jus publicum europaeum, Владимир Даль, Санкт-Петербург: 2008, p. 103.

[7] Платон, Государство, или О справедливости, in Полное собрание сочинений в одном томе, Альфа-Книга, Москва: 2013, pp. 828–829.

[8] Аристотель, Политика, АСТ, Москва: 2012, p. 103.

[9] Г. Гегель, Философия права, Мир книги, Литература, Москва: 2007, p. 321.

[10] http://w2.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-xiii_enc_20061888_libertas.html [accessed: 01.09.2017].

[11] M. Schooyans, La face cachée de l’ONU, Le Sarment, Paris: 2000, pp. 25–26.

[12] Шмитт, supra note 6, pp. 62, 65.

[13] H. Tumans determined the methodology of the Annales as the desire “to know the way of thinking and motivation” of people of a different era, and “to reveal the inner logic of political developments and changes”; the representatives of this school tried to overcome the shortcomings inherent in the factual (positivist) method based on the analysis of the facts themselves, and to the conceptual method based on the examination of facts from a certain angle (Will we have our Annales?, in: Jebelevskie readings – 4. Abstracts of the scientific conference 30.10–1.11.2002, http://centant.spbu.ru/centrum/publik/confcent/2002-10/tumans.htm [accessed: 01.09.2017]).

Muddying the “Bright Lines”: The Crimean Claim to Self-Determination in a Policy-Oriented Perspective
Daniele Amoroso[*]

doi: 10.7366/9014Crimea6

Introduction

A prominent international lawyer characterised the Crimean case (as well as the Ukraine crisis more generally) as one with clear “bright lines”, in which it is relatively easy to understand who is to blame (Russia) and for what reasons (violation of Ukraine’s territorial integrity and the unlawful use of force)[1]. The same author has then warned against doctrinal attempts to “muddy the water”, by complicating the analysis with “more nuanced and value-laden approaches”[2]. No matter how morally or politically appealing, the argument goes, these approaches remain “legally irrelevant”[3].

If we look solely at Russia’s incursion into Crimea we could hardly reach a different conclusion. Though bloodless[4], it epitomises the kind of power politics which is deadly to international law. This is only a part of the story, however. The other part is that separation from Ukraine (and accession to the Russian Federation) arguably occurred with the consent of a substantial majority of the Crimean population. As shown by recent (and respectable) independent opinion polls, indeed, despite the widely denounced procedural flaws affecting the referendum of 16 March 2014[5], its outcome seems a genuine reflection of popular aspirations[6]. Without jumping to conclusions, one may legitimately doubt the “virtue” of upholding the “bright lines” (allegedly) drawn by international law when this means turning a deaf ear on the popular will. Moral unease aside, there should be clarification as to how this approach is to be reconciled with “one of the essential principles of contemporary international law”, namely the principle of self-determination[7].

Critics of Russia’s intervention in Crimea – in fact the overwhelming majority of (Western) international lawyers[8] – have tended to belittle this problem. Although some prove ready to concede that incorporation into the Russian Federation was “very probably what the majority of its population wanted”[9], they have consistently refused to give particular weight to the self-determination claim coming from Crimean separatists (and backed by the Russian authorities)[10] on the basis of three arguments. First, the “genetic” connection between the Crimean claim and the unlawful use of force by Russia[11] irremediably prejudged the legality of the former under international law[12]. Second, the referendum of 16 March 2014, because of its glaring unfairness, did not qualify as a free manifestation of popular will, with the result that it could not constitute (even potentially) a valid basis for a self-determination claim[13]. Third and finally, the Crimean case does not fit with the hypotheses where (non-consensual) external self-determination is certainly upheld by international law, namely colonial or alien domination; nor were the conditions present to invoke the (far more controversial) right to remedial secession[14].

The first two arguments are hardly debatable in either fact or law, yet are procedural and context-specific, in that they do not pass a judgment on the merits of the Crimean claim for territorial separation, but rather confine themselves to inferring its illegality from the way it was concretely pursued. In other words, they leave the door ajar for a different legal assessment, had the referendum in Crimea been fair and free[15].

Conversely, the third argument is substantial, as it rules out the relevance of the principle of self-determination on the grounds that the Crimean claim for independence – no matter how intense and widespread – does not match the consolidated patterns of territorial separation inherited from the past (decolonisation, liberation from alien domination, as well as – at least for some authors – remedial secession). This view is more problematic. In fact, it seems prima facie at odds with the core of the principle of self-determination, namely that the will of the people should be a decisive factor in shaping the forms and boundaries of political authority. The main problem with this argument is that it moves from a traditional, “static” conceptualisation of the law of self-determination, which understands the latter as a set of clear-cut rules whose content has to be distilled, ultimately, in the light of accumulated past decisions.

By contrast, it is here submitted that the principle at hand should be looked at in its “dynamic” aspect, viz. as the ceaseless “process” through which the international community provides an authoritative response to demands for self-determination. To this end, a valuable contribution may be offered by the policy-oriented jurisprudence developed by Harold D. Lasswell and Myres S. McDougal, commonly known as the New Haven School of international law (NHS), which stands out, in the landscape of international legal theory, precisely for having conceptualised international law as “a process by which members of the world community attempt to clarify and secure their common interests through authoritative decisions and controlling practices”[16].

On this assumption, the present paper intends to “muddy” – at least in part – the “bright lines” drawn by (Western) mainstream international-law scholarship, by investigating the Crimean claim for self-determination in a policy-oriented perspective. However, since Russian unilateral and coercive intervention inevitably distorted the legal framework of the crisis, by undermining the legitimacy of the Crimean cause, it will be necessary to imagine an alternative scenario in which such an intervention did not take place. In other words, I will strive to figure out whether – in the absence of forcible outside interference – the will expressed by Crimea’s institutions and its people to (re)unite with Russia would have had some weight under international law[17].

Such an intellectual exercise could be labelled as one of pure speculation, but this would be an unfair judgment. “Counterfactual thinking”[18] has recently been advocated as a precious tool with which to approach issues of international law in a non-conventional way, since it highlights the contingency of the present state of things, by prompting the observer to “train [his/her] imagination” through the articulation and assessment of alternative realities[19]. By applying this tool to the Crimean case, the present paper aims to explore the possibility of promoting a rational and pacific self-determination process in Crimea (as in other regions of the Russian “Near Abroad”), instead of indefinitely “freezing” the conflict in the same way as has happened in other areas of the same region.

To the above end, my analysis will proceed as follows. In the first place, I will try to explain why the study of the principle of self-determination should adopt a process-oriented, rather than a rule-oriented, approach (para. 1). Then, the main tenets of the NHS model will be spelt out (para. 2). Finally, I will move on to apply this model to the Crimean crisis (para. 3).

1. The limits of the traditional approaches to the principle of self-determination

A glance at the relevant international texts would leave the cursory reader with the impression that the international community has long agreed upon a workable definition of the principle of self-determination. From the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples to the 2007 Declaration on the Rights of Indigenous Peoples, the principle of self-determination is commonly described as endowing “all peoples” with the right to “freely determine their political status”[20]. On closer inspection, however, it appears that there is little in this formula that is amenable to univocal legal definition[21]. In particular, two fundamental (and intertwined) issues are left open, namely: i) what constitutes a “people” under the principle of self-determination[22]; ii) what should be a legitimate object of self-determination claims (secession, autonomy within the State, democracy, and so on).

In fact, the construction of this principle (and, hence, the search for an answer to the aforementioned questions) has always constituted the terrain of a harsh ideological confrontation, which has pitted one against the other three “visions” of self-determination. The first one is the (once dominant) “lecture anti-coloniale quasi-exclusive”, fostered by Socialist and Third-World States since the mid 1950s (and still well entrenched among adherents of the Non-Alignment Movement), whereby the scope of the principle of self-determination would be confined to colonial domination or analogous situations (such as the apartheid regimes in Rhodesia and South Africa, Morocco’s presence in Western Sahara, or the military occupation by Israel of the Palestinian territories)[23].

The second vision, which has emerged as the prevailing (albeit not dominant) paradigm in the post-Cold War era, is the one propounded (mainly) by Western Countries, which construe the principle of self-determination through the lens of liberal-democratic institutions and values, such as the holding of free and fair multi-party elections, the protection of minority rights, and the recognition of adequate forms of autonomy and self-government to territorially-based minorities and indigenous peoples[24].

Finally, we have the (far more controversial) ethno-nationalist conception – rooted in Wilson’s Fourteen Points and recently championed, not without inconsistencies, by the Russian Federation (including in the Crimean case) – which in its purest form advocates the redrawing of national boundaries with a view to matching the ethnic composition of the population in a given territory[25]; and, according to a less radical reading, envisages such a redrawing as a last-resort solution, available to peoples only in the case of widespread and serious human-rights violations (the so-called “remedial secession”)[26].

As a matter of fact, only the first approach has managed to gather the diuturnitas and opinio iuris required to give birth to a customary international rule with a clearly discernible scope and prescriptive content; namely the prohibition of colonial, alien or racial domination[27]. On the one hand, indeed, the emergence of a peoples’ right to (liberal-)democratic governance is fatally hindered by the fact that almost half of the international community is constituted by states governed by non-democratic (or rather non-liberal-democratic) regimes[28]. On the other hand, the practice supporting an ethno-nationalist reading of self-determination (also in its milder form of a right to “remedial secession” for oppressed minorities) is scant, and anything but univocal[29]. In a word, the existence of customary “rules” on post-colonial self-determination may be affirmed solely on the basis of a teleologically oriented selection of the relevant international materials, which over-stretches the legal significance of some manifestations of practice and plays down the importance of others. This explains why, in legal scholarship, these customary rules are often (if not always) described as “emerging” or in statu nascendi[30].

The point is that the stabilisation of a customary rule through a “general practice accepted as law” by the various members of the international community, while difficult per se, is nearly impossible in the area of self-determination, where the most fundamental, and most jealously protected attributes of state sovereignty (national boundaries, form of state, form of government) are potentially at stake. Indeed, the crystallisation of the aforementioned norms on colonial, alien or racist domination was made possible by the unique political conditions which led to the demise of colonial empires – a situation which is unlikely to recur, at least in comparable terms, in the near future.

In the light of the foregoing, it would seem that the principle of self-determination, as a legal principle, has somehow exhausted its historical function, its relevance being confined to a handful of well-identified residual hypotheses (e.g. Palestine and Western Sahara); or, alternatively, that it is stuck in an impasse, being unable to overcome its glorious (but now fundamentally outdated) anti-colonialist past because of the persistent lack of coherence in international practice.

This would, however, be a hasty (and inaccurate) conclusion. In approaching the law of self-determination, one should take care not to confuse the general “principle” with the individual “rules” originating therefrom – a distinction masterfully drawn by Antonio Cassese in his celebrated monograph on self-determination[31]. In his view, the existence of general principles, such as that of self-determination, is “a typical expression of the present world community”, which is often too divided to agree upon specific rules, but nonetheless needs “some sort of basic guidelines for [its] conduct”, a lowest common denominator of “the conflicting views of States on matters of crucial importance”.[32]

In relation to self-determination, Cassese identified this lowest common denominator in the “quintessence of self-determination”, namely the “need to pay regard to the freely expressed will of the peoples”[33] whenever foundational political decisions are at stake. This is a very loose, open-textured standard, as the author promptly pointed out, since “it does not define either the units of self-determination or areas or matters to which it applies, or the means or methods of its implementation […]; nor does it point to the objective of self-determination”, but limits itself to indicating “the course of action to be taken when one is confronted with problems concerning the destiny of a people”[34].

But what does it mean in practice? Two appear, in particular, as functions assigned by Cassese to the principle of self-determination thus conceived. On the one hand, it would operate as a standard of interpretation: when a customary or treaty norm is unclear, it should be construed so as to take the freely expressed will of the people into account. On the other hand, it would be possible to infer some specific rules from the general principle, such as, for instance, a prohibition on territorial cessions carried out, notwithstanding the contrary will of the population concerned[35], or a ban on military coups overthrowing democratically elected governments. However, neither function has been commonly resorted to in international practice[36]. Of course, this is unrelated to the legal quality of Cassese’s proposal, but is rather due to the fact that such an understanding of general principles presupposes an eminently judicial law-making, whereas in the field of self-determination the contribution of international and domestic courts has been less significant than in other areas of international law, partly because states have shown a marked reluctance to refer self-determination matters to third-party dispute settlers, and partly because the very same judicial organs have preferred to carve out for themselves a role secondary to that of political, state-driven organs[37]. And indeed the author is compelled to concede that, because of its “general, loose and multifaceted” character, the principle of self-determination lends itself to “various and even contradictory applications”, because of its attitude “to being manipulated and used for conflicting purposes”[38].

Here is the point where the rule-based approach meets its cognitive boundaries. Faced with the normative ambiguity of the principle, and the lack of consistency in past applicative trends, it proves unable to appreciate whether a given course of action actually pursues the principle of self-determination or not. Here we reach, at the same time, the crux of my working hypothesis. As Rosalyn Higgins put it, where legal standards are uncertain, a “policy-directed choice can be properly made”[39]. A more comprehensive understanding of the law of self-determination, therefore, should also include an analysis of the process which leads to the adoption of such policy-directed choices. This is why I contend that the traditional analysis of the principle of self-determination needs to be complemented through a theoretical model that takes account of its dynamic dimension and the embeddedness of policy factors in the actual making of law[40].

In this respect, the reference to the New Haven School of international law (NHS) is all too obvious. Indeed, while normative ambiguity torments the (hard) positivist lawyer, it represents the very point of departure of process-based, policy-oriented jurisprudence[41]. In the following paragraph, therefore, the main tenets of the theory will be summed up briefly.

2. The policy-oriented approach of the New Haven School of international law (and its detractors)

Nowadays, NHS cannot be said to be popular among international lawyers (particularly in continental Europe[42]). There are at least three reasons for this (more or less veiled) idiosyncrasy. First, NHS writings are often couched in an esoteric language perhaps readily understandable to the initiated, but sometimes nearly unintelligible to the non-NHS reader[43]. While this is certainly (and regrettably) true, it is quite obvious that it cannot be the sole reason for a theoretical model to be rejected outright. Rather, the scholar wishing to rely on this model should as far as possible avoid a solipsistic repetition of NHS formulae and taxonomies, instead making an additional effort to expound his/her theses in a language friendlier to the community of traditionally trained lawyers (to which the present author ultimately belongs).

Secondly, the NHS has been accused of conceiving international law as the “handmaiden of the national interest of the United States”[44], as it would end up being as it tailors the notion of lawfulness around US foreign policy[45]. This point, cannot be denied in its entirety either. Admittedly, some NHS scholars seem to be geared towards justifying US action in the international arena at any cost. But this should be seen as an expression of a personal, patriotic inclination (a phenomenon not limited to NHS, by the way[46]), rather than as the natural consequence of a process-based jurisprudence[47]. In fact, other authors belonging to the same school have not refrained from criticising US choices in relation to specific events[48].

Thirdly, and crucially, many see NHS jurisprudence as “anathema” to the international legal discipline, because it would unacceptably conflate law, politics and power[49]. However, this criticism is too sweeping. While it is true that one of the salient features of the NHS approach lies in its recognition of “the essential relationship between law and policy”[50], it is unfair to argue that “law” is not distinguished from other social processes (including power processes)[51]. This will appear clear if we take a closer look at the main features of this theory.

2.1. International law as a policy-oriented process

NHS scholars locate international law within the wider “world social process”, to be understood as the totality of interactions among human beings or groups thereof (“participants”), through which they pursue their desires or wants (“values”)[52] by employing a set of strategies (“practices”) on the basis of resources available to them (“base values”). Among these interactions, a prominent role is played by the “world power process”, namely that which determines the actual “outcomes” of participants’ struggles for desired values. This process consists of the decisions by which some participants coercively shape (“control”) the behaviour of the other participants, by effecting specific “outcomes” (in the sense of “who gets what”). World power process should not be confused with international law (or, in NHS vernacular, the “world legal process”), which is only a part of it. International law, indeed, is described as the continuing process of authoritative and controlling decisions. Under this model, therefore, law is made up of decisions possessing two elements: “authority” and “control”[53]. While the second feature is common to all power processes, “authority” is typical of the law-making process, and indicates the conformity of a given decision to the world community’s expectations “about who is competent to make what decisions, in what structures, by what procedures, and in accordance with what goals and criteria”[54]. The notion of “authority” is therefore crucial in discerning law from decision-making processes resulting in the exercise of “naked power”[55]. Thus, contrary to what its critics seem to imply, NHS jurisprudence does not equate law with power, though it does acknowledge realistically that the latter is a constitutive element of the former (because authority without control is not law, but mere “pretense”)[56].

However, two aspects need clarifying here, namely i) the identity of the “community” whose expectations create a base in authority for control to be exerted over decisions; and ii) the precise content of the expectations referred to. In regard to the former question, it is worth underlining how, under the NHS model, the relevant community extends beyond the decision-making elites of States and international organisations, so as to include also “politically relevant groups”, such as NGOs, political movements, transnational corporations, and so on[57]. Sure, the weight accorded to the latter’s expectations is less than that accorded to States and international organisations; and varies considerably in relation to factors such as subject matter or the group’s interest and influence of a group. But the fact remains that such expectations are not ignored under the NHS model – which explains why this model is described as “especially empowering” for non-state actors[58].

In relation to the content of such expectations, we see from the above they concern both procedure underpinning the decisionmaking process (“who is competent”, “in what structures”, “by what procedure”), and substance (“in accordance with what goals and criteria”). While the former does not raise particular problems, the substantial aspect needs further elaboration. Indeed, when NHS scholars refer to the “goals and criteria” by which the decisionmaking process should be pursued, they have in mind two different, but intermingled problems. In the first place, the conformity of a given course of action with “trends in past decisions” is taken into account. Reliance on past trends gives the analysis a significant element of the stability crucial in any legal theory[59]. It also brings the NHS and the rule-based approach closer, to the extent that the notion of “past trends” includes a series of legal materials with which positivist scholars are well acquainted (e.g. treaties, state practice, international resolutions, international case law, and so on)[60].

However, past trends are not the only relevant factor. When a decision based on past trends does not allow the pursuance of a preferred objective; or when past trends are sufficiently ambiguous to enable a policy-directed choice, the “authority” of decisionmaking will ensue alternatively from congruence with the basic policy goals of the international community, namely i) the minimisation of the use of unauthorised coercion and violence (“minimum public order”); and ii) the full realisation of human dignity, i.e. “the greatest production and the widest possible distribution of all human values” (“optimum public order”)[61]. In practice, this means that the failure to meet the expectations of the world community as to the fostering of these policy goals may deprive a decision of its basis in “authority”, notwithstanding compliance with past trends[62]. Conversely, an unprecedented decision contrary to established patterns of behaviour may nevertheless be deemed lawful, because of its attitude to the securing of both minimum and optimum public order[63].

Understandably enough, the latter contention has appalled positivist international lawyers, somehow “shocked” by a theory enabling policy to trump established rules. However, this point is less destabilising than it might at first appear. On the one hand, positivist scholars are ready to acknowledge that, when the law is uncertain, the decisionmaker will inevitably be driven by factors other than the purely legal[64]. On the other hand, it is generally accepted that a breach of existing law may constitute the first act of a process eventually leading to the formation of a new customary norm, provided that the law-breaker is convinced of the “social necessity” (opinio necessitatis) of such a breach[65]. Accordingly, all the NHS approach really tries to do is provide an analytical model through which such a process can be examined and assessed “systematically and openly”[66], with the result that policy factors underlying it are made “candid”[67]. It is worth adding that the time-honoured notion of opinio necessitatis is far more elusive than the basic policy goals identified by NHS scholars. After all, the pursuance of a peaceful world order where human dignity is fully realised was not just a personal hope of MacDougal and his acolytes, but has also represented the gist of the political agenda of the world community since the very adoption of the UN Charter[68].

2.2. The NHS analytical model

The process of authoritative and controlling decisionmaking described above is studied and evaluated under the NHS model through an articulated analytical grid, which indicates i) which factors should be taken into account (“principles of substance”); and ii) how they should be treated (”principles of procedures”).

As to the former aspect, NHS scholars suggest a focus as follows. First, the participants in the decisionmaking process should be identified. By “participants”, NHS scholars mean any individual or entity “which has at least minimum access to the process of authority in the sense that it can make claims or be subjected to claims.”[69] Therefore, this category is not limited to States and international organisations, but will also include all the relevant stakeholders[70].

Having identified the participants in a given decisionmaking process, their “perspectives”, “bases of power” and “strategies” will be analysed. By focusing on these factors, the observer will be able to grasp the viewpoint of those who actually make the decisions[71]. The “perspectives” of the participants, in particular, describe the way they identify (or disidentify) themselves also in relation to the other participants, their expectations, and the concrete outcome they pursue by participating in the process[72]. The “bases of power”, on the other hand, represent the resources which each participant may rely on in seeking to influence or determine the outcome of the process. In this respect, account is to be taken of both the extent to which the participant has access to the decisionmaking process (namely, its “basis of authority”) and its ability to affect their performance from outside by leveraging on political, economical, military, religious or cultural pressure[73]. By “strategies”, finally, NHS scholars indicate the precise course of action taken by each participant to reach its objectives[74], which may range from pure persuasion (e.g. the “naming and shaming” procedures used by UN organs and NGOs) to pure coercion (e.g. humanitarian intervention), passing through a wide variety of intermediate practices (such as resort to third-party dispute settlements, adoption of non-forcible countermeasures, and so on).

Along with X-raying “participants” by investigating who they are, what they want, what resources they hold and how they act, the NHS apparatus also considers the “situations” (or “arenas”) in which these processes take place, and the “effects” of their specific “outcomes” upon the world community at large. Thus, each process is examined in its “spatial, temporal, institutional and crisis dimensions”, which is to say that account is taken of: which areas of the world are specifically affected by the process at issue, within which time-lapse the latter may be located, which institutional arenas are involved in the decisionmaking process (e.g. the UN General Assembly, the WTO Dispute Settlement Body, an informal ad hoc conference, and so on), and whether and to what extent the need for an authoritative response has been precipitated by an abnormal and destabilising series of events (e.g. the outbreak of a civil war, a natural disaster)[75]. On the other hand, the scope of the analysis should be enlarged so as to gauge what effects would (potentially or actually) ensue, in the long run, from the concretisation of the outcomes pursued by the participants[76].

To recapitulate, any investigation under the NHS model should seek to determine: who are the relevant actors in the situation (participants), […] what are their subjectivities, their identifications, expectations and demands (perspectives), where they are interacting (situations), what resources are at their disposal (bases of power), how those resources are used (strategies), and with what culminating events (outcomes) or what longer-term consequences (effects)[77].

However, the foregoing tells us little about how to piece together all the parts of this complex puzzle. This introduces us to what NHS scholars call “principles of procedures”, viz. the set of intellectual tasks which the academic observer (as well as the competent decision-maker) should carry out[78].

The NHS approach predicates the performance on five activities. First, the observer (or decisionmaker) should delineate the contours of the problem to be addressed. Generally speaking, a problem arises when there is a “discrepancy between predicted and desired future decisions” regarding a given conflict of claims[79]. Accordingly, this stage of the analysis will require an explanation as to why a certain outcome is deemed desirable, in the light of the basic policy goals of minimising unauthorised violence and assuring human dignity in full. Secondly, the relevant participants, their conflicting perspectives and their roles will be identified. Thirdly, relevant past decisions will be reviewed, with particular attention being paid to the contextual factors influencing their adoption. Fourthly, the observer will strive to predict what outcomes and effects are likely to be arrived at in the future, having regard to both past trends and conditioning factors. Fifthly and finally, past trends will be assessed critically, and new alternatives in rules and institutions recommended, with a view to the basic policy goals of the community being advanced[80].

Very briefly, these are the main features of the NHS model. It is now time to see how this model might work in relation to the Crimean crisis, though it should first be admitted that the performance of the demanding intellectual tasks set out above and, in that context, the considerable amount of data needing to be collected and processed, leave such work in the realm of a monograph-size study[81] requiring (ideally, at least) a team working with non-legal specialists to produce it. The analysis presented below must therefore be seen as very tentative, and as not going beyond an outline of how the Crimean claim for self-determination could be evaluated in a policy-oriented perspective.

3. Applying the NHS model to the Crimean case: Delimitation of the problem and clarification of the goals

As we have seen, international law is defined by NHS scholars as the continuous process of authoritative and controlling responses by competent decision-makers to claims lodged by participants in the world legal process. Likewise, the law of self-determination may be described as the overall decisionmaking process through which the world community upholds, reshapes or rejects the peoples’ demands for the status quo to be changed through the free determination of their political status[82].

In analysing this process, the scholar who adopts a policy-oriented approach should first delimit the problem he/she wants to investigate, by clarifying what policy goals are to be pursued. In this respect, it is submitted that the basic policy goals of minimising unauthorised violence and ensuring full achievement of human dignity acquire a specific meaning when self-determination claims are at stake. Notably, the former translates into a policy promoting stability, embodied in the well-established principles of territorial integrity and non-intervention[83]; the latter, into a policy promoting change when the maintenance of the status quo ends up hindering the genuine aspirations of the peoples concerned and, thus, the achievement of a world order based on human dignity[84]. Despite appearances to the contrary, these two policies do not necessarily work in opposition. Indeed, coercive denial of self-determination claims may be problematic in both respects, as it not only leads to human-rights deprivations, but is also likely to boost civil unrest[85].

Against this background, the situation in Crimea appears troublesome in several respects, even without considering – for the reasons explained above – the unlawful use of force by the Russian Federation. First of all, the outcome of the Crimean crisis, namely the territorial aggrandisement of Russia to the detriment of Ukraine, is clearly at odds with the basic policy promoting stability in the form of territorial integrity. Furthermore, its long-term effect, viz. the renewed tension between the West and Russia (which has induced some analysts to speak of a “Cold War II”)[86], seriously undermines achievement of the goal of minimising unauthorised coercion. Finally, the fulfilment of a world public order of human dignity is hindered by the strategic choice of Western countries to downplay the fact that, in all likelihood, the Crimean people are actually unwilling to follow the Ukrainian majority in its pro-EU move.

This discrepancy between the current situation and desired policies constitutes the “problem” which a policy-oriented analysis of the Crimean crisis should strive to resolve.

3.1. Identifying the participants and their perspectives. In particular: The Crimean “people”

The second step suggested by the NHS model is description of participants in the process under investigation, as well as their perspectives. In the case of Crimea, this would require an inquiry into the major actors involved in the crisis, whether they have a direct interest at stake (as Russia, Ukraine, the United States, the European Union, the North Atlantic Treaty Organization and the Collective Security Treaty Organization all do), or (like China, India, the United Nations, the Council of Europe and the Organization for Security and Cooperation in Europe) do not. However, since it is neither feasible nor advisable to engage in such detailed analysis[87] here, I will try to offer a glimpse into how this task might be carried out, by lingering with the key participant, i.e. the group claiming to be the “Crimean people”.

This brings us back to the tormenting question of what counts as a “people” under the principle of self-determination. In a policy-oriented perspective, the answer is not to be inferred, once and for all, from some general and universally valid notion of “people”, but is context-dependent. Indeed, what needs verifying is whether the intensity of the claimant’s disidentification with the dominant group justifies an international response which deems them to be two distinct participants. In this analysis, while historical, geographical, ethnic, cultural and religious factors are to be taken into account[88], the most crucial task is to ascertain the subjective perception of the “self” by the community concerned[89]. Various indices may be employed to this end. In the case of the Crimean group, it seems particularly useful to investigate the recent trends in its political life.

Indeed, since the crisis of the Soviet Union, the Crimean population and its public authorities have repeatedly manifested their sense of distinctiveness with regard to the rest of Ukraine. This has been evidenced by – among other things – the referendum of 20 January 1991 (aimed at restoring for Crimea the status of Autonomous Soviet Socialist Republic); the Declaration of Independence issued by the Supreme Council of Crimea on 5 May 1992 (to be confirmed by a referendum which never took place because of opposition from the central government); the consultative referendum of 27 March 1994 on greater autonomy for Crimea; the call for a referendum on the status of the Peninsula, voted for by the Crimean Parliament on 4 February 1998 (but never put into practice); as well as, more generally, the very high rate of electoral success achieved throughout these years by autonomist, separatist and/or pro-Russian parties[90].

The Crimean population thus appears eligible for qualification as a people for the purposes of the principle of self-determination. However, this finding is without prejudice to the legitimacy of its claim. To gauge the latter, it will be necessary to investigate the perspectives of the Crimean people – an inquiry which should help the observer (or decision-maker) assess whether and to what extent the upholding of its demand for change would advance the common interest of the world community[91].

Generally speaking, self-determination claims may be of two kinds, which are commonly (though not always consistently) labelled claims for external or internal self-determination[92]. Claims for external self-determination, on the one hand, involve the (re-)acquisition of statehood or the redrawing of national boundaries. They include secessionist and irredentist claims, as well as demands for liberation from alien/colonial domination. Claims for internal self-determination, on the other hand, aim at a domestic redistribution of power, ranging from the removal of barriers to political participation and the recognition of special autonomy within the state to more radical demands, such as “regime change”.

This classical distinction needs to be complemented by further analysis. To say that a given group pursues a secessionist or irredentist claim actually tells us little about what the demands in terms of human values are. In this respect, secessionist groups may differ greatly from one to another: just compare the Albanian Kosovars’ demand for independence with the secessionist claim made by the Catalans in Spain. A policy-oriented analysis, therefore, requires that a distinction be drawn between the various claims underpinning the request or demand for a reallocation of political power that is common to all demands for self-determination. While a claimant group sometimes perceives self-determination as the only way to ensure its own survival in the face of brutal repression by the ruling class (the so-called “remedial secession” scenario), at other times a reallocation of power is sought by the claimant, because of a severe mismatch between its expectations and those of the dominant group regarding the treatment of certain policy issues (usually, wealth creation and redistribution and/or respect for ethno-cultural diversity)[93]. In spite of what has been suggested by one author[94], it is pretty clear that the Crimean situation does not even remotely resemble the “remedial secession” scenario, but qualifies as an irredentist claim prompted by ethno-cultural and economic motivations. In fact, while the language issue (and, notably, the hasty approval of a bill making Ukrainian the sole state language)[95] was a precipitating factor, the core cause of the crisis is to be found in the Crimean majority’s preference for Russia’s state capitalist model, as opposed to the “free market” agenda pursued by EU institutions and opted for by the rest of the country[96].

A process-based approach will also consider that the perspectives of a group may change over time, being affected by the actual availability of institutional arrangements through which the group may shape and achieve its own demands[97]. The less these arrangements are available to the claimant, the more its expectations will be misaligned with those of the dominant group, and the more radical will become its claim for self-determination. The Crimean crisis provides a good example in this way. Indeed, the sense of identification of the Crimean population with the Ukrainian dominant group deteriorated rapidly in the light of the fact that, over a very short span of time, the government of President Yanukovich – who enjoyed wide popular support in the Peninsula and, for better or for worse, acted as a guarantor of the Russian-ethnic groups – was replaced by a transitional government with a strong Ukrainian nationalist component, and the new rulers attempted to repeal the law safeguarding national minority languages (including Russian). This inevitably caused a (re-)radicalisation of Crimean demands for external self-determination, which had been somehow dormant since the end of 1990s[98].

Finally, the sense of identification of the claimant group has to be evaluated in the light of its penchant for inclusiveness or exclusiveness. Notably, there should be verification as to whether the “we-they” dichotomy somehow inherent to claims for territorial separation, turns into forms of racism or intolerance towards the so-called “trapped minorities”, namely the people belonging to the dominant (or other) group who happen to live on the territory whose control is demanded by the claimant group[99]. Undoubtedly, the nationalist overtones which have featured in the Ukrainian crisis from its inception created a highly confrontational environment inimical to the protection of minorities. In Crimea, this has had a seriously adverse impact on the Tatar population, which has been the target of repeated attacks and egregious discriminations because of its opposition to Crimea’s reunification with Russia[100].

3.2. Past trends in decisions and conditioning factors

The third intellectual task predicated by the NHS is represented by the description of past trends in decisions related to a certain issue, coupled with the analysis of the factors conditioning them. This task is largely familiar to the traditionally trained scholar, whose investigation is usually focused on past legal materials. Unlike the latter, however, the NHS does not look at the past in order to establish, with a reasonable degree of finality, the existence of a general practice accepted as law (or a settled interpretation of a given treaty provision). Rather, the aim is to assess “how the international system performed” in approaching a situation and, mostly, “why it succeeded or failed”[101] in the fulfilment of the basic policy goals of minimum and optimum public order.

In relation to the Crimean case, the performance of this task should entail an inquiry into the way the international community reacted to demands for territorial separation aimed at a reunification with an existing state on the basis of ethno-national affinity (“irredentist claims”). What needs highlighting in this connection is the fact that, since the end of World War II, irredentist aspirations (also those couched in self-determination terms) have always been viewed with suspicion by the international community[102]. This is also true with regard to decolonisation processes, notwithstanding the fact that “integration with an independent State” represents one of three options open to Non-Self-Governing Territories. Indeed, the international validation of the will of a colonial people to integrate with an independent State was subject to stricter conditions than the other options[103] and was seldom granted[104]. The case of Cyprus is a good case in point. Greek Cypriots’ demands for enosis (union) with Greece were never upheld by the international community, which instead proved more amenable to the concession of independence to the island of Cyprus. Indeed, the Greek government’s choice to shift its goals accordingly was met with approval within the UN General Assembly, and led to the conclusion of the 1959 London and Zurich Agreements, and the proclamation of independence by Cyprus in 1960[105].

The same trend may be observed beyond the context of decolonisation. Let us consider the case of Kosovo. In the face of widespread popular support for unification with Albania[106], the Contact Group on Kosovo made it clear from the outset that “union […] with any country or part of any country” was not among the options on the table[107]. Nor has the progressive consolidation of Kosovo’s statehood affected the expectations of the world community in this respect. A 2015 statement by the Albanian Prime Minister describing unification with Kosovo as “unavoidable and unquestionable“ was met with strong criticism by EU institutions[108].

Two major factors conditioned this trend. First, irredentist claims are perceived by the states of origin as a more intense threat to their territorial integrity, as they fear (at times with good reason) that demands for self-determination conceal the intention, by the retrieving states, to annex part of their territories[109]. A related – and, again, widely justified – worry is that irredentist claims and struggles are not genuine, being instead propelled and steered (openly or covertly) by the kin-states[110]. Second, unification with a larger, (more or less) ethnically homogeneous entity may prove particularly disempowering for the trapped minorities, whose numerical consistence (and hence political leverage) is bound to “dilute” in a wider community. By contrast, in the case of independence, the demographic and political weight of the latter will be comparatively greater. In the case of Cyprus, for instance, enosis was contested, not only by the United Kingdom, but also by Turkey, because of the severe risk of marginalisation the Turkish Cypriot minority faced.

Does this trend actually foster the basic policies of the world community? A dramatic answer to this question is provided by the subsequent developments of the Cyprus issue. As is sadly well known, the delicate (and largely imperfect) bi-communal balance enshrined in the 1960 Constitution was put under severe pressure in the following years, and was swept away in 1974, after a Greece-backed military coup brought the pro-enosis nationalist Nikos Sampson to power. This triggered the military reaction by Turkey, which invaded the northern part of the island. Notwithstanding the rapid collapse of the nationalist junta and democratic Cypriot institutions’ solemn renouncing of any intention to unify with Greece, Turkey’s occupation persisted, and in 1983 Turkish Cypriots declared independence unilaterally, giving birth to the (unrecognised) Turkish Republic of Northern Cyprus. After some forty years of peace talks conducted under the auspices of the United Nations, the contending parties have recently come close to an agreement. On 11 February 2014, the leaders of the Greek and Turkish Cypriot communities released a Joint Declaration stigmatising as “unacceptable” the status quo and expressing their determination to resume negotiations in order “to reach a settlement […] based on a bi-communal, bi-zonal federation with political equality”[111]. Thus, the bi-communal philosophy underlying the 1960 Constitution was basically reaffirmed as the best way of guaranteeing a durable solution to the Cyprus conflict.

In the light of the foregoing, the trend in decisions disfavouring irredentist outcomes and supporting alternatives thereto (including independence) appears to be apt in furthering the key policy goals of minimising unauthorised coercion and promoting human dignity. As we have seen, the short-lived attempt by irredentist elites to put into question the settlement reached at the end of the 1950s (coupled, of course, with Turkey’s policy of aggression) generated a series of chain reactions which ended up splitting the island of Cyprus, thus provoking both military tensions and serious human-rights deprivations.

3.3. Projection of future trends in decisions

As a fourth task, the observer is required to predict future trends regarding decisions, on the basis of an assessment of past trends and conditioning factors. This inquiry is aimed at testing whether the current way of coping with a given problem will in future be able to advance the fundamental policies of the world community. Of course, these projections cannot be made mechanically, in terms of “inevitability”: many variables may influence the world process in ways that it is impossible to foresee with absolute certainty[112]. Aware of this, NHS scholars have worked out an intellectual tool, which they call the “developmental construct”, and which entails the projection of a series of possible scenarios from the most optimistic to the most pessimistic[113].

Transposed to the Crimean context, this means that the observer should endeavour to imagine what developments could possibly ensue from the non-recognition strategy currently adopted by Western countries and their allies[114]. While it is impossible to embark here on a detailed analysis of the full range of possibilities, it would be sufficient for our purposes to formulate the two basic constructs lying at the opposite extremes of the spectrum. At the one extreme, we may conceive of a pessimistic (and sadly realistic) scenario whereby the Crimean conflict, like many others in the same area, remains “frozen”, since the international community proves unable to modify the de facto situation, but persists in withholding recognition. As a consequence of this state of affairs, the population living in Crimea is somehow insulated from the rest of the world, and thus prevented from fully pursuing its needs, desires, and aspirations[115]. In the long run, moreover, insulation may only exasperate internal tensions, leading to an escalation of violence against minority groups (such as Tatars) who are perceived as anti-Russian.

At the other extreme, we may postulate an (arguably) optimistic scenario in which Western strategy ultimately proves successful, with Russia recognising its fault and restoring Ukraine’s sovereignty on the Crimean Peninsula. If we look at it through the prism of inter-state relations, this outcome would undoubtedly constitute a substantial improvement over the current situation. The same cannot be said, however, with regard to the Crimean population (with the obvious exception of Tatars): its disidentification with Ukraine will likely have been strengthened during the years under Russian rule, and it is equally likely that, sooner or later, separatist aspirations will re-emerge – along with the question as to how to deal with them.

In sum, regardless of whether we make pessimistic or optimistic projections, the Western strategy of non-recognition appears unable, alone, to generate satisfactory outcomes, at least from the perspective of the Crimean people. The elaboration of alternative approaches is therefore needed – which brings us to the fifth and last intellectual operation.

Conclusions

The “culminating task in the procedure for solving problems”[116] in a policy-oriented perspective entailing the invention, evaluation and selection of alternatives, which should be built upon the results of the performance of other intellectual tasks. In the foregoing analysis, I have tried to suggest that a “bright lines” approach to the Crimean case, however theoretically impeccable, ultimately fails to indicate a way out of the conflict which takes into account all the interests at stake, including those of the Crimean people[117].

An alternative approach should be based on the distinction drawn, and set out above, between the principle of self-determination and the rules deriving therefrom. This would allow for circumvention of the argument whereby the Crimean demand for external self-determination is not worthy of legal protection, because the situation in Crimea does not match any of the hypotheses by which past claims for independence have been upheld by the international community. In fact, this circumstance may certainly substantiate the finding that the specific rules – real or putative – on self-determination (prohibition of colonial/alien domination, right to remedial secession) do not find application; though it does not automatically exclude the relevance of the general principle[118].

Accordingly, the world community should not content itself with deciding whether to extend recognition or not, by testing Crimea’s claim against the (few) rules on self-determination crystallised through state practice. An international response to the crisis should rather envisage alternative solutions aimed at moving the situation closer to the basic policies of minimising unauthorised violence and promoting human dignity[119]. From this general policy more specific recommendations should be drawn as a result of the performance of the other intellectual tasks. Notwithstanding the limits of the analysis conducted in the preceding paragraphs[120], some suggestions may be put forth tentatively.

As we have seen, at the heart of the Crimean demand for external self-determination lies a mix of ethno-cultural anxieties (basically concerning the preservation of Russian language and traditions) and socio-economic preferences (opting for Russian state capitalism as an alternative to the EU “free market” model). Ways should therefore be explored to accommodate these demands without questioning Ukraine’s territorial integrity. While this does not appear particularly troublesome with regard to cultural issues, problems could arise in relation to economic preferences. In this connection, the temptation to consider liberalism the only means of promoting economic development should be resisted, with acceptance extended to the coexistence and competition of “diverse systems of public order”[121] enjoying equal dignity, at least in principle. Hence, an institutional arrangement could be put in place allowing the Autonomous Republic of Crimea, subject to a referendum vote, to opt out of the Association Agreement with the EU, and to strengthen its economic ties with the Russian Federation.

More radical solutions might also be taken into account, if re-incorporation of Crimea into Ukraine proved unfeasible. However, as the examination of past trends regarding irredentist claims has made clear, the maintenance of the current situation should not be among the available options. Instead, one could think of an internationally-monitored process through which Crimea would obtain independence, provided that, on the one hand, independence is not viewed as a preliminary step to accession to Russia; and, on the other hand, minorities are protected in line with international standards. Otherwise international recognition should be withheld.

So far, the analysis of the Crimean claim for self-determination has been carried out on the counterfactual assumption that the referendum of 16 March 2014 was fair and free, and occurred without forcible external interference. This was instrumental to an understanding of whether this demand, regardless of the serious “procedural” flaws which undoubtedly affected it, was ill-founded on its merits as well. In the light of the foregoing, it is submitted that the Crimean claim, though not acceptable in its current, irredentist form, should not be blatantly disregarded by the international community. Indeed, its (partial) upholding could contribute to a de-escalation of the crisis, while giving due weight to the aspirations of the peoples concerned.

In concluding, one may wonder whether the recommendations articulated in relation to the alternative scenario described above would also work in real life. In my opinion, this question should receive a (cautious) answer in the affirmative. After all, both recommendations postulate the restoration of the status quo ante with a view to obtaining a new – this time procedurally flawless – popular deliberation on the future of Crimea (that is, the realisation of conditions similar to the counterfactual premises of my investigation). There is certainly reason to believe that Russia would not easily agree to revisit its legal and political stance on Crimea. However, should Western powers show greater openness to its viewpoint and, more importantly, to that of the Crimean people, Russia could be induced to redefine its strategy and to consider that there is no gain in having another (frozen) conflict on its periphery when more cooperative – and, perhaps, equally satisfying – options are available.

Abstract: The Crimean case was characterised as one with clear “bright lines”, in which it is relatively easy to understand who is to blame and for what reasons. If we look solely at Russia’s incursion into Crimea we could hardly reach a different conclusion. However, this is only really part of the story. The other part is that accession to the Russian Federation arguably occurred with the consent of a substantial majority of the Crimean population – which raises the issue of whether the principle of self-determination should be of some relevance in the case at hand. In an attempt to offer an answer to this question, the paper has adopted a dynamic approach, which conceives of the law of self-determination, not as a static set of clear-cut rules, but as a ceaseless process by which the international community provides an authoritative response to peoples’ claims to have the forms and boundaries of political authority (re)shaped. In particular, the case is made for a policy-oriented approach, based on the teachings of the New Haven School of international law.

Keywords: Self-determination of Peoples; Counterfactual Thinking; New Haven School of International Law; Principles vs Rules; Irredentism.

[*] Daniele Amoroso, Associate Professor of International Law, University of Cagliari (Italy). Paper completed on 11 January 2016. The author wishes to thank Enrico Milano and Antonello Tancredi for their very helpful suggestions and comments on an earlier version of this paper.

[1] B. Roth, The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention, 16 Ger. Law J. 384 (2015), pp. 387–388.

[2] Ibidem, p. 393.

[3] Ibidem, p. 388.

[4] This point was highlighted by President Putin in the address delivered on 18 March 2014 before State Duma Deputies and Federation Council Members. See Annex to the letter dated 19 March 2014 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc. A/68/803–S/2014/202, p. 6 (“I cannot recall a single case in history of an intervention without a single shot being fired and with no human casualties”).

[5] See Venice Commission, Opinion on “whether the decision taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to organise a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea’s 1992 constitution is compatible with constitutional principles”, 21 March 2014, Doc. CDL-AD(2014)002-e.

[6] See Pew Research Center, Despite Concerns about Governance, Ukrainians Want to Remain One Country, 8 May 2014, p. 7 (“For their part, Crimeans seem content with their annexation by Russia. Overwhelming majorities say the March 16th referendum was free and fair (91%) and that the government in Kyiv ought to recognize the results of the vote (88%)”). See also J. O’Loughlin & G. Toal, The Crimean conundrum (Public opinion survey carried out on the Crimean Peninsula in December 2014) https://www.opendemocracy.net/od-russia/john-o%E2%80%99loughlin-gerard-toal/crimean-conundrum [accessed: 13.06.2017].

[7] East Timor (Portugal v Australia) [1995] ICJ Rep. 90, para. 29.

[8] C. Santulli, La crise ukrainienne: position du problème, 118(4) Revue général de droit international public 799 (2014), p. 800; O. Corten, The Russian intervention in the Ukrainian crisis: was jus contra bellum ‘confirmed rather than weakened’?, 2(1) Journal on the Use of Force and International Law 17 (2015), p. 19.

[9] T. Christakis, Self-Determination, Territorial Integrity and Fait Accompli in the Case of Crimea, 75(1) Heidelberg J. Int’l L. 75 (2015), p. 100. See also Roth, supra note 1, p. 390; A. Tancredi, Crisi in Crimea, referendum ed autodeterminazione dei popoli, 8(2) Diritti umani e diritto internazionale 480 (2014).

[10] The right of the Crimean people to self-determination was invoked by the Russian representative at the Security Council (see UN Doc. S/PV.7134, pp. 15–16 and UN Doc. S/PV.7138, pp. 2–3). Mainstream Russian scholars appear to share this view. See A. Kapustin, Crimea’s Self-Determination in the Light of Contemporary International Law, 75(1) Heidelberg J. Int’l L. 101 (2015); V. Tolstykh, Three Ideas of Self-Determination in International Law and Reunification of Crimea with Russia, 75(1) Heidelberg J. Int’l L. 119 (2015).

[11] On the legal qualification of the use of force by the Russian Federation, see generally A. Tancredi, The Russian Annexation of the Crimea: Questions Relating to the Use of Force, I QIL Zoom out 5 (2014).

[12] This argument is based on the well-known paragraph 81 of the Kosovo Advisory Opinion (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep. 403), wherein the ICJ contended that declarations of independence are to be considered illegal when they are “connected with the unlawful use of force or other egregious violations of norms of general international law”. E.g. Tancredi, supra note 9, p. 89; Christakis, supra note 9, p. 96–99; C. Marxsen, Crimea’s Declaration of Independence (Blog post on Eur. J. Int’l L.: Talk! of 18 March 2014, http://www.ejiltalk.org/crimeas-declaration-of-independence [accessed: 13.06.2017]); C. Walter, Postscript. Self-determination, Secession, and the Crimean Crisis 2014, in: C. Walter, A. von Ungern-Sternberg & K. Abushov (eds.), Self-Determination and Secession in International Law, Oxford University Press, Oxford: 2014, pp. 300–306; J. Vidmar, The Annexation of Crimea and the Boundaries of the Will of the People, 16 Ger. Law J. 365 (2015), pp. 374–377; G. Wilson, Crimea: Some Observations on Secession and Intervention in Partial Response to Müllerson and Tolstykh, 14 Ch. J. Int’l L. 217 (2015), p. 220; P. Hilpold, Ukraine, Crimea and New International Law: Balancing International Law with Arguments Drawn from History, 14 Ch. J. Int’l L. 237 (2015), p. 261.

[13] This point was raised in particular by A. Peters, Sense and Nonsense of Territorial Referendums in Ukraine, and Why the 16 March Referendum in Crimea Does Not Justify Crimea’s Alteration of Territorial Status under International Law, Blog post on Eur. J. Int’l L.: Talk!, 16 April 2014, http://www.ejiltalk.org/sense-and-nonsense-of-territorial-referendums-in-ukraine-and-why-the-16-march-referendum-in-crimea-does-not-justify-crimeas-alteration-of-territorial-status-under-international-law [accessed: 13.06.2017]. See also O. Schaefer, A minimal proceduralist argument against Crimean independence, Blog post on Practical Ethics, 3 March 2014, http://blog.practicalethics.ox.ac.uk/2014/03/a-minimal-proceduralist-argument-against-crimean-independence [accessed: 13.06.2017]; S. Wheatley, Modelling Democratic Secession in International Law, in: S. Tierney (ed.), Nationalism and Globalisation: New Settings, New Challenges, Hart, Oxford: forthcoming, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2511216 [accessed: 13.06.2017], pp. 32–33.

[14] K. Hausler & R. McCorquodale, Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law, Blog post on Opinio Juris, 10 March 2014; Walter, supra note 12, pp. 305–308; Y. Shany, Does International Law Grant the People of Crimea and Donetsk a Right to Secede? Revisiting Self-Determination in Light of the 2014 Events in Ukraine, 21(1) Brown Journal of World Affairs 233 (2014), p. 239; Wilson, supra note 12, pp. 218–219; Hilpold, supra note 12, pp. 262–267; Christakis supra note 9, pp. 88–90.

[15] Wheatley, supra note 13, pp. 32–33.

[16] L. Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Oxford University Press, New York: 2015, p. xvii (emphasis in original).

[17] For a similar approach, see A. Catala, Secession and Annexation: The Case of Crimea, 16 Ger. Law J. 581 (2015).

[18] What is meant by “counterfactual thinking” is a method of analysis of social facts which “deliberately change[s] one or more [conditioning] factors” and “argue[s] what would have happened under those changed circumstances” – I. Venzke, What If? Alternative Realities of International Law, 3(8) ESIL Reflections 1 (2014).

[19] Ibidem, pp. 4–5.

[20] Properly speaking, this definition captures only the political side of the principle at issue, which has also economic, social and cultural facets (namely the peoples’ right to “freely pursue their economic, social and cultural development”).

[21] E.g. J. Crawford, The Right of Self-Determination in International Law: Its Development and Future, in: P. Alston (ed.), Peoples’ Rights, Oxford University Press, Oxford: 2002, p. 10 (speaking of “lex lata, lex obscura”).

[22] This uncertainty famously led Sir Ivor Jennings to label the principle at issue as “ridiculous […] because the people cannot decide until somebody decides who are the people” – I. Jennings, The Approach to Self-Government, Cambridge University Press, Cambridge: 1956, p. 56.

[23] A. Pellet, Quel avénir droit des peuples à disposer d’eux-mêmes?, in: M. Rama-Montaldo (ed.), El derecho internacional en un mundo en trasformaciòn. Liber amicorum en homenaje al profesor Eduardo Jiménez de Aréchaga, Fundación de Cultura Universitaria, Montevideo: 1994, p. 265.

[24] E.g. T. Franck, The Emerging Right to Democratic Governance, 86(1) Am. J. of Int’l L. 46 (1992).

[25] This view was labelled by Koskenniemi as the “Rousseauesque approach” to self-determination, see M. Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice, 43(2) Int’l & Comp. Law Q. 241 (1994), p. 250.

[26] E.g. A. Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, Oxford University Press, Oxford: 2004, p. 335.

[27] A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Cambridge University Press, Cambridge: 1995, p. 129.

[28] According to a recent report by Freedom House, of 195 States reviewed, only 89 were considered “free” (under liberal-democratic standards, of course), while 55 were labelled as “Partly Free” and 51 as “Not Free”. See Freedom House, Discarding Democracy: Return to the Iron Fist. Freedom in the World 2015 (Annual report on the condition of global political rights and civil liberties) https://freedomhouse.org/report/freedom-world-2015/discarding-democracy-return-iron-fist [accessed: 13.06.2017]. Another element which casts more than a doubt on the existence of a legal entitlement to democratic governance is represented by the ambiguous reactions of the international community to unconstitutional changes of democratically elected governments. See E. De Wet, From Free Town to Cairo via Kiev: The Unpredictable Road of Democratic Legitimacy in Governmental Recognition, 108 Am. J. of Int’l L. Unbound 201 (2015).

[29] K. Del Mar, The Myth of Remedial Secession, in: D. French (ed.), Statehood and Self-determination: Reconciling Tradition and Modernity in International Law, Cambridge University Press, Cambridge: 2013, pp. 79-108; J. Vidmar, Remedial Secession in International Law: Theory and (Lack of) Practice, 6(1) St Antony’s International Review 37 (2010).

[30] E.g. D. Thürer & T. Burri, Self-Determination, in: R. Wolfrum, Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford: 2013, para. 39.

[31] Cassese, supra note 27, pp. 126–135.

[32] Ibidem, p. 128.

[33] Western Sahara (Advisory Opinion) [1975] ICJ Rep. 12, para. 58.

[34] Cassese, supra note 27, p. 128 (emphasis in original).

[35] Ibidem, pp. 132–133.

[36] But see African Commission on Human and Peoples’ Rights, Resolution on the Military, 1994; and Dawda Jawara v. The Gambia, 2000, paras. 72–73 (construing the right to self-determination under Art. 20 of the African Charter of Human and Peoples’ Rights as forbidding military coups). Still, it should be noted that such a prohibition is anything but established in State practice (De Wet, supra note 28).

[37] This is particularly true with regard to the ICJ, whose pronouncements on the issue – although not “merely adjectival” – are basically aimed at supporting the activities of UN political organs. See J. Crawford, The General Assembly, the International Court and Self-determination, in: V. Lowe & M. Fitzmaurice (eds.), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings, Cambridge University Press, Cambridge: 1996, pp. 592, 594, and 605; see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep. 136. In this respect, it is worth noting that, when the ICJ has been called upon to settle a self-determination controversy in the absence of a previous determination by the General Assembly or the Security Council, it has shown an overly cautious attitude (Kosovo Advisory Opinion, supra note 12). Of course, other courts have offered some notable exceptions, as when the Supreme Court of Canada issued an advisory opinion on Reference re Secession of Quebec ([1998] 2 SCR 217) that has since represented an unavoidable point of reference in approaching self-determination issues. Then there is the African Commission on Human and Peoples’ Rights, which has found itself competent to adjudicate individual and collective complaints concerning alleged violations of the right to self-determination (see Katangese Peoples’ Congress v. Zaire, 1995; Dawda Jawara v. The Gambia, 2000; and Kevin Mgwanga Gunme et al. v. Cameroon, 2009). However, there is no way to overlook the fact that both the Supreme Court of Canada and the African Commission proved to be fully aware of the prominent role policy considerations played in this context (see Reference re Secession of Quebec, paras. 100–101; and Kevin Mgwanga Gunme et al. v. Cameroon, para. 203).

[38] Cassese, supra note 27, pp. 128–129. See also E. Milano, Formazione dello Stato e processi di State-building nel diritto internazionale. Kosovo 1999–2013, Editoriale scientifica, Napoli: 2013, pp. 63–66.

[39] R. Higgins, Problems & Process: International Law and How We Use It, Clarendon Press, Oxford: 1994, p. 7.

[40] On the viability of such an integrated approach, see generally T.-H. Cheng, Making International Law Without Agreeing What It Is, 10(1) Washington University Global Studies Law Review 1 (2011), p. 25. In a similar vein, although not fully embracing a policy-oriented perspective, see Milano, supra note 38, pp. 45–76.

[41] In fact, NHS scholars usually remind the reader that “inherited general prescriptions commonly travel in pairs of complementary opposites”. See H. Lasswell & M. MacDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy, New Haven Press, New Haven: 1992, p. 213.

[42] G.J. Auth, Book Review: Die Schule von New Haven. Darstellung und Kritik einer amerikanischen Völkerrechtslehre, 12 Eur. J. Int’l L. 1030 (2001).

[43] For a devastating critique on this point, see G. Fitzmaurice, Vae Victis or Woe to the Negotiators! Your Treaty or Our ‘Interpretation’ of It?, 65 Am. J. of Int’l L. 358 (1971), pp. 360–367.

[44] S.V. Anderson, A Critique of Professor Myres S. McDougal’s Doctrine of Interpretation by Major Purposes, 57 Am. J. of Int’l L. 378 (1963), p. 382.

[45] R.A. Falk, Casting the Spell: The New Haven School of International Law, 104 Yale L.J. 1991 (1995), p. 1997.

[46] Curiously enough, NHS scholars have always paid peculiar attention to minimising subjective biases. Indeed, it is precisely to that end that they recommend an observer clarifying his/her personal standpoint before proceeding with analysis. See M. McDougal, H. Lasswell & M. Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Virginia Journal of International Law 168 (1968), pp. 199–200.

[47] Cheng, supra note 40, p. 19; D. Wallace, Human Rights and Business: A Policy-Oriented Perspective, Brill Nijhoff, Leiden: 2014, p. 21.

[48] E.g. E. Suzuki, Self-Determination and World Public Order: Community Response to Territorial Separation, 16 Virginia Journal of International Law 779 (1976), p. 855 (criticising the US decision to side with Pakistan during the Bangladesh Liberation War); M. Reisman, Why Regime Change Is (Almost Always) A Bad Idea, 98 Am. J. of Int’l L. 516 (2004) (criticising US military intervention in Iraq).

[49] B. Simma & A.L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: a Positivist View, 93 Am. J. of Int’l L. 302 (1999), p. 305.

[50] Higgins, supra note 39, p. 5.

[51] Cheng, supra note 40, pp. 12–20.

[52] As is known, Lasswell and McDougal proposed an eight-fold taxonomy of “values”, which includes: “(1) Power: the giving and receiving of support in government, politics, and law; (2) Wealth: the production and distribution of goods and services, and consumption; (3) Enlightenment: the gathering, processing, and dissemination of information; (4) Skill: opportunity to acquire and exercise capability in vocation, professions, and other social activities; (5) Well-being: safety, health, and comfort; (6) Affection: intimacy, friendship, and loyalty; (7) Respect: recognition, whether personal or ascriptive; (8) Rectitude: participation in forming and applying norms of responsible conduct” – Lasswell & MacDougal, supra note 41, p. 335ff. MacDougal recognized, however, that “any other categorization which offers operational indices in terms of the concrete demands of individual human beings will serve equally well” – M. MacDougal, Law as a Process of Decision: A Policy-Oriented Approach to Legal Study, 1 Natural Law Forum 53 (1956), p. 56.

[53] A.C. Arend, Legal Rules and International Society, Oxford University Press, Oxford: 1999, p. 76ff.

[54] Chen, supra note 16, p. 17; H. Lasswell, M. MacDougal & M. Reisman, The World Constitutive Process of Authoritative Decision, 19 Journal of Legal Education 253 (1967), p. 256 (speaking in this regard of “expectations of appropriateness”).

[55] Lasswell, MacDougal & Reisman, supra note 54, p. 257.

[56] See Higgins, supra note 39, p. 4 (“Law […] is the interlocking of authority with power”).

[57] M. Reisman, International Lawmaking: A Process of Communication, 75 American Society of International Law Proceedings 101 (1981), p. 107.

[58] E. Suzuki, The New Haven School of Jurisprudence and Non-State Actors in International Law in Policy Perspective, 42 Journal of Policy Studies 41 (2012); M. Noortmann, Understanding Non-state Actors in the Contemporary World Society: Transcending the International, Mainstreaming the Transnational, or Bringing the Participants back in?, in: M. Noortmann & C. Ryngaert (eds.), Non-State Actor Dynamics in International Law: From Law-Takers to Law-Makers, Ashgate, Farnham: 2010, p. 153ff.

[59] Chen, supra note 16, p. 101 (“In the most comprehensive sense, the function of law in any community is to maintain uniformity in decision in clarifying and securing common interests”).

[60] Higgins, supra note 39, p. 6.

[61] For an excellent analysis of these two goals and their relationship, see S.R. Ratner, Between Minimum and Optimum Public Order: An Ethical Path for the Future, in: M.H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, Martinus Nijhoff Publishers, Leiden: 2011, p. 195ff.

[62] This was the fate, for instance, of the position of equidistance taken by UN organs during the Bangladesh Liberation War, which was somehow “overruled” by the “smooth flow of decisions in favour of the recognition of Bangladesh” – Suzuki, supra note 48, p. 811.

[63] In this respect, a (relatively unproblematic) example is offered by the non-consensual airstrikes carried out by the US (and other Western powers) against Daesh on Syrian territory. While certainly deviant from the traditional norms on the use of force, they have met with little if no opposition within the world community at large.

[64] Cheng, supra note 40, passim (discussing “soft positivism”).

[65] B. Conforti & A. Labella, An Introduction to International Law, Martinus Nijhoff Publishers, Leiden: 2011, p. 35. Similar observations could be made with regard to “creative” interpretation of treaty clauses or the superseding of treaty obligations by subsequent customary rules.

[66] Higgins, supra note 39, p. 5.

[67] I. Scobbie, A View of Delft: Some Thoughts about Thinking about International Law, in: M.D. Evans (ed.), International Law, Oxford University Press, Oxford: 2014, p. 76.

[68] Lasswell & MacDougal, supra note 41, pp. 34–35; Chen, supra note 16, pp. 101–103.

[69] Lasswell, MacDougal & Reisman, supra note 54, p. 262.

[70] It is important to clarify that, according to the NHS approach, the decisionmaking process – and, as a consequence, participation therein – does not reflect the tripartite distinction between legislative, executive and judicial power; but is dissected into seven different, but interrelated functions, namely: “(1) Intelligence: the gathering, processing, and disseminating of information relevant to the making of choices; (2) Promotion: the active advocacy of policy alternatives; (3) Prescription: the fashioning of one of competing policies as ‘law’ and projecting it as the authoritative policy of the community in question; (4) Invocation: the provisional characterisation of events of deviation from prescriptions and the invocation of an authoritative response; (5) Application: applying prescriptions to an alleged deviation, with sanction; (6) Termination: putting an end to existing prescriptions and other arrangements that no longer reflect appropriate public-order goals; (7) Appraisal: the ongoing evaluation of the general performance of the decision process” – Lasswell & MacDougal, supra note 41, p. 205ff.

[71] Wallace, supra note 47, p. 200.

[72] S. Wiessner & A.R. Willard, Policy-oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, 93(2) Am. J. of Int’l L. 316 (1999), p. 323.

[73] Ibidem, p. 324.

[74] Ibidem.

[75] Ibidem, p. 323.

[76] Lasswell & MacDougal, supra note 41, p. 447ff.

[77] Suzuki, supra note 58, p. 47.

[78] Wiessner & Willard, supra note 72, p. 325.

[79] Wallace, supra note 47, p. 47; Chen, supra note 16, p. 16 (describing problems “in terms of disparity between demanded values and their achievement in community processes”).

[80] Wiessner & Willard, supra note 72, p. 325ff.

[81] E.g. B. Balayev, The Right to Self-Determination in the South Caucasus: Nagorno Karabakh in Context, Lexington Books, Lanham: 2013.

[82] Suzuki, supra note 48, p. 782. A non-NHS author has evocatively described this process as the “clash between the existential political will of the group exercising the pouvoir constituant and the negative or positive response of the various actors of the international community” – A. Skordas, Self-Determination of Peoples and Transnational Regimes: a Foundational Principle of Global Governance, in: N. Tsagourias (ed.), Transnational Constitutionalism: International and European Models, Cambridge University Press, Cambridge: 2007, p. 209.

[83] Suzuki, supra note 48, pp. 792–793.

[84] Ibidem, p. 793.

[85] S. Mancini, Secession and Self-Determination, in: M. Rosenfeld and A. Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, Oxford: 2012, p. 482 (“[t]here are doubtless cases in which existing state borders are the actual source of instability”, emphasis in original). See generally Chen, supra note 16, pp. 102 and 116–118 as well as, with specific regard to self-determination, p. 158.

[86] B.N. Mamlyuk, The Ukraine Crisis, Cold War II, and International Law, 16 Ger. Law J. 479 (2015).

[87] On this point, however, see R. Müllerson, Ukraine: Victim of Geopolitics, 13 Ch. J. Int’l L. 133 (2014), pp. 142–144; Mamlyuk, supra note 86, pp. 489–493. With specific reference to the role played by international organisations, see also A.F. Douhan, International Organizations and Settlement of the Conflict in Ukraine, 75 Heidelberg J. Int’l L. 195 (2015).

[88] On these (controversial) issues, compare Kapustin, supra note 10, pp. 109–112 with Hilpold, supra note 12, pp. 239–242.

[89] E.g. Final Report and Recommendations of the Meeting of Experts on extending of the debate on the concept of “peoples’ rights” held in Paris, France, from 27 to 30 November 1989 (SHS-89/CONF.602/COL.1), para. 22; Kevin Mgwanga Gunme, supra note 37, paras. 170–171. This approach provides a possible response to Jennings’s criticism, referred to above, as to the lack of an established definition of “people”. It is the people, in the first place, who “should decide who the people should be” – Catala, supra note 17, p. 603.

[90] See G.M. Vaccaro-Incisa, Persistent Objections to the Western Understanding of Territorial Integrity and Self-Determination: Russia’s Reassessment Attempt, Bocconi Legal Studies Research Paper No. 2635018, pp. 41–42.

[91] Chen, supra note 16, p. 38.

[92] E.g. S. Oeter, Self-Determination, in: B. Simma et al. (eds.), The Charter of the United Nations: A Commentary, Vol. I, Oxford University Press, Oxford: 2012, p. 327ff.

[93] Suzuki, supra note 48, p. 812.

[94] F. Marcelli, Il principio di autodeterminazione nell’epoca del dominio della finanza, in M. Distefano (ed.), Il principio di autodeterminazione dei popoli alla prova del nuovo millennio, CEDAM, Milan: 2014, p. 144.

[95] As is well-known, the law in question did not enter into force because the acting President of the time, Oleksandr Turchynov, refused to sign it.

[96] See U. Özsu, Ukraine, International Law, and the Political Economy of Self-Determination, 16 Ger. Law J. 434 (2015). Remarkably, similar feelings were expressed in a referendum held around the same period in the Moldovan region of Gagauzia. See Radio Free Europe / Radio Liberty’s Moldovan Service, Gagauzia Voters Reject Closer EU Ties For Moldova, 2.02.2014, http://www.rferl.org/content/moldova-gagauz-referendum-counting/25251251.html [accessed: 13.06.2017].

[97] Suzuki, supra note 48, p. 855.

[98] On the rise and (temporary) fall of Crimean separatism, see G. Sasse, The Crimea Question: Identity, Transition, and Conflict, Harvard University Press, Cambridge: 2007.

[99] Suzuki, supra note 48, pp. 794–795.

[100] See the Reports issued by the UN Human Rights Monitoring Mission, deployed by the High Commissioner for Human Rights in March 2014 (http://research.un.org/en/ukraine) [accessed: 13.06.2017].

[101] Wiessner & Willard, supra note 72, p. 327.

[102] F. Palermo, Irredentism, in: R. Wolfrum, Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford: 2010, para. 9. Needless to say, things change radically if the state of origin does not oppose territorial transfer as an outcome of the self-determination process (see e.g. the provisions on self-determination contained in the 1998 Good Friday Agreement).

[103] Under the terms of General Assembly Resolution 1541 (XV), on the one hand, integration should have taken place “on the basis of complete equality between the peoples [concerned]” (Principle VIII); on the other hand, “the integrated territory should have attained an advanced stage of self-government with free political institutions, so that its people would have the capacity to make a responsible choice through informed and democratic processes” (Principle IX).

[104] See T. Musgrave, Self-determination and National Minorities, Oxford University Press, Oxford: 2000, p. 73.

[105] See S.G. Xydis, The UN General Assembly as an Instrument of Greek policy: Cyprus, 1954–1958, 12(2) Journal of Conflict Resolution 141 (1968).

[106] A. Channer, Albanians Divided by Borders: Loyal to State or Nations?, in: T.J. Mabry et al. (eds.), Divided Nations and European Integration, University of Pennsylvania Press, Philadelphia: 2013, pp. 182–183.

[107] Guiding principles of the Contact Group for a settlement of the status of Kosovo, 7 October 2005, Principle 6.

[108] A. Rettman & E. Krasniqi, EU says Albania comment on Kosovo unification ‘not acceptable’, EU Observer 9.04.2015, https://euobserver.com/foreign/128273 [accessed: 13.06.2017].

[109] Xydis, supra note 105, p. 157.

[110] D.L. Horowitz, Self-determination: Politics, Philosophy, and Law, in: M. Moore (ed.), National Self-Determination and Secession, Oxford University Press, New York: 1998, p. 183.

[111] Joint Declaration, respectively at Points 1, 2, and 3. For the text of the Joint Declaration and updates on the peace process, see http://www.uncyprustalks.org/nqcontent.cfm?a_id=6753 [accessed: 13.06.2017].

[112] Chen, supra note 16, p. 545.

[113] H. Eulau, H.D. Lasswell’s Developmental Analysis, 11 The Western Political Quarterly 229 (1958).

[114] As is known, this strategy culminated in the adoption by the General Assembly of Resolution 28/262 on the “Territorial integrity of Ukraine”, whose para. 6 “calls upon all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol”.

[115] For some practical examples of the difficulties experienced by Crimeans as a consequence of non-recognition, see Crimea’s elections: Kafka on the Black Sea, The Economist 17.09.2014.

[116] Wiessner & Willard, supra note 72, p. 333.

[117] See also O. Korhonen, Deconstructing the Conflict in Ukraine: The Relevance of International Law to Hybrid States and Wars, 16 Ger. Law J. 452 (2015).

[118] In a similar vein, see Tancredi, supra note 9, pp. 485–486, who however ends up denying that the referendum in Crimea represented a valid exercise of self-determination, basing himself on the “procedural” reasons referred to in the introductory paragraph (see supra notes 11–13 and accompanying text).

[119] Chen, supra note 16, pp. 35, 38; L.C. Buchheit, Secession: The Legitimacy of Self-Determination, Yale University Press, New Haven–London: 1978, p. 238.

[120] In fact, more in-depth analysis would allow for an expansion of the number of recommendations, and for issues omitted here (e.g. Russia’s concerns over NATO’s enlargement to the East) to be addressed.

[121] M. MacDougal & H. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. of Int’l L. 1 (1959); Chen, supra note 16, pp. 104–116.

PART II
CRIMEA AND THE USE OF FORCE

The Annexation of Crimea in the Light of the Definition of Aggression. Does Prohibition of Aggression apply to Russia?
Patrycja Grzebyk[*]

doi: 10.7366/9014Crimea7

Introduction

At the end of February 2014, Russian armed forces (lacking state insignia on their uniforms) joined Crimean self-defence units formed by separatists in starting to take control over crucial locations on the Crimean Peninsula, and in mounting raids in the neighbouring regions. They met with almost no resistance.[1] On 16th March 2014, Crimean authorities organised a referendum in which an overwhelming majority allegedly voted for accession to the Russian Federation. The validity of that referendum was denied by the United Nations General Assembly.[2] Nonetheless, as a result of it the Crimean authorities issued a declaration of independence and signed an agreement on the accession of Crimea and Sevastopol to the Russian Federation on 18th March 2014.[3] By the end of March, Russia had gained control over the whole of Crimea. Ukraine claimed that Russia had committed aggression/an act of aggression against it.[4] However, while some states agreed with that assessment, others avoided confirming it, as they preferred to focus on peaceful settlement of disputes.[5] Academics are largely agreed in qualifying Russia’s action towards Crimea as aggression.[6] However, significantly (but not surprisingly), the Russian government[7] as well as a majority of Russian scholars, have been of the opinion that the ‘reunion’ of Crimea with Russia is completely legal under international law.[8]

There is no doubt that the label of aggressor is associated with some odium, and that helps to mobilise the international community (especially since in some national legislation, armed force can only be used, or a state of war declared, in response to aggression[9]). Qualification of the use of force by a state as aggression is also a prerequisite for individual criminal responsibility for the crime of aggression. In addition, aggression is considered a special (indubitable) example of an armed attack to which a state has the right to respond with self-defence, whether individual or collective. That is why it is vital to answer if in fact armed secession and final accession/annexation of Crimea to/by Russia can in fact be considered aggression under international law.

The aim of the article is firstly to assess the role of the USSR as a predecessor of the Russian Federation[10] in defining aggression in international law. Secondly, it is to indicate if the Crimean conflict can be qualified as aggression in light of the definition of aggression adopted by the General Assembly in 1974 (Resolution 3314). Thirdly, taking into account the position of the Russian Federation as a Permanent Member of the United Nations Security Council, an attempt is made to answer a question as to whether prohibition of aggression is and should be applicable to Russia. The question of the effectiveness of international law in relation to Permanent Members of the Security Council will also be addressed.

1. The role of the USSR in defining aggression

During the inter-war period, the Soviet Union was extremely active in efforts to define aggression. The proposed definition of an aggressor presented by the Soviet Union in 1933, during the Disarmament Conference, is particularly noteworthy.[11] This provides that:

The aggressor in an international conflict shall be considered that State which is the first to take any of the following actions: a. Declaration of war against another state; b. The invasion by its armed forces of the territory of another state without declaration of war; c. Bombarding the territory of another state by its land, naval or air forces or knowingly attacking the naval or air forces of another state; d. The landing in, or introduction within the frontiers of, another state of land, naval or air forces, without the permission of the government of such a state or the infringement of the conditions of such permission, particularly as regards the duration of sojourn or extension of area and the establishment of a naval blockade of the coast or ports of another state.

Especially innovative was the proposal to consider a naval blockade or breach of the condition of permission for the stay of armed troops as examples of acts of aggression. This could be considered a radical shift in the perception of these measures at that time. The Soviet initiative was endorsed by China, Czechoslovakia, Estonia, France, Norway, Poland and Sweden, while the United Kingdom and the United States opposed a discussion on the definition of aggression. Germany, Japan, Italy and Ireland also expressed reservations in this regard. A slightly modified Soviet proposal of the definition of an aggressor was included in the draft Convention for Limitation and Reduction of Armaments of 22 September 1933. However, this Convention was not ultimately adopted. That was due, not so much to the definition of an aggressor, as to reservations regarding the disarmament procedure it outlined. The USSR, instead of waiting for the results of the Disarmament Conference, managed to convince some states to sign conventions defining aggression (the 1933 London Conventions).[12] This fact cannot be underestimated – especially in the light of the lack of a universally binding treaty definition of aggression. This means that the USSR has established regional norms prohibiting and defining aggression that are still in force. Within the United Nations, the Soviet Union used every opportunity to seek to have aggression defined. The USSR stressed that the UN Charter term “breach of the peace” had to be supplemented by “acts of aggression”; and it finally convinced other states to accept this point. Its efforts (made together with China) to have a definition of aggression included in the UN Charter ended without success, but its stubbornness prevented other states from completely abandoning the work to define aggression. Within a variety of UN bodies, Soviet representatives presented several proposals regarding the definition of aggression (mostly based on the 1933 London Conventions’ definition). It could easily be observed how the USSR was reluctant to achieve any compromise or accept any deviation from its proposals. For the USSR the most important element of its definition was the principle of the “first use of force”, according to which the aggressor state is the one first using armed force against another state. In the opinion of the USSR, the motives underpinning such a use could not impact upon its qualification as aggression. There was no room for preventive of pre-emptive self-defence, no room to consider if the use of armed force was provoked or not. Soviet representatives were convinced that the principle of the “first use of force” has its basis in Article 51 of the UN Charter, both of which recognise a right to self-defence but only in response to prior armed attack.[13] The USSR opposed any suggestions that animus aggressionis should be taken into account, as there would always be problems proving this. Moreover, in the Soviet opinion, applying “intent” to a state had to be somewhat misdirected. For these reasons, the qualification of the use of force as aggression had always to be based on objective, non-disputable prerequisites. For this reason, the 1933 Soviet proposal for a definition emphasised that:

No consideration whatsoever of a political, strategic or economic nature, including the desire to exploit natural riches or to obtain any sort of advantages or privileges on the territory of another State, no references to considerable capital investments or other special interests in a given State, or to the alleged absence of certain attributes of State organization in the case of a given country, shall be accepted as justification of aggression.

The definition of aggression adopted by the General Assembly in 1974 (Resolution 3314), after decades of work by different special committees, evidently took account of the Soviet arguments, given the way in which Article 2 states:

The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.’

However, it must be noted that the principle of the “first use of force” in Resolution 3314 is not absolute. The Security Council can take into account e.g. animus aggressionis and decide that a state in given circumstances should be considered a victim, not an aggressor. Nonetheless, any attempt to deviate from the “first use of force” principle can be blocked by Russia as it has a status of Permanent Member of the Security Council, which means it can block any non-procedural decision. But the veto power is a two-edged sword. If Russia insists on the application of the “first use of force” principle in circumstances which clearly indicate that the state was provoked, other Permanent Members can prevent that state being labelled an aggressor.

Although the GA’s resolution defining aggression is not legally binding, the 1974 definition, or at least the prohibition of enumerated acts of aggression, achieved the status of customary norm. This was confirmed by the International Court of Justice,[14] and by the inclusion of the definition from Res. 3314 (after wide and time-consuming discussions) in the Statute of the International Criminal Court.[15] Doubts on the customary status of the GA definition can be raised as regards specific elements of its general part, given that the relevance of the subjective factor (animus aggressionis) is stressed, for example in ICJ jurisprudence.[16]

The USSR’s activeness in defining aggression provokes a question as to the reason for all the eagerness. This question seems especially intriguing when we recall the USSR’s many violations of restrictions on the use of force. For example, by virtue of the Council Resolution of 14 December 1939, the USSR was expelled from the League of Nations for invading Finland. In addition, from among the 11 states with which the Soviet Union signed conventions defining aggression, only a single state has not suffered from a Soviet attack qualifying as aggression under these same conventions.[17]

The eagerness of the USSR to define aggression was in fact caused by the potential to use the definition of aggression as a propaganda tool, a disciplinary measure, and a legal argument in the lawfare against other states.[18]

2. The Crimean annexation in the light of the definition of aggression

The 1974 GA definition of aggression provides that: “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition” (Article 1).

To state that Russia committed aggression against Ukraine in Crimea, it must first be assessed if Russia really used armed force. As was mentioned above, there is no doubt that the armed forces lacking insignia deployed on the Crimean Peninsula belonged to Russia.[19] However, there is no international obligation for members of armed forces to have state insignia on their uniforms. Thus, under International Humanitarian Law of Armed Conflicts, the use of unmarked troops to conduct military operations is not illegal, as armed forces must only make themselves distinct from the civilian population,[20] which was clearly the case in Crimea (as the troops acting there were in uniform). However, the assessment based on IHL does not impact upon the assessment of the use of armed troops by reference to law on the use of force. Sending marked or unmarked soldiers to another state without its consent, in order to gain control over territory of that state, must be considered use of armed force, even if not a single shot was fired. The fact that Russian operations advanced without a fight does not impact upon the above qualification, as it raises no doubts that, in a situation in which one state uses force to take position, and waits for the reaction of the state whose territory was attacked, the former must still be labelled an aggressor, not the latter.[21] Russia was first to use armed force, and this – by virtue of the principle introduced into Res. 3314 at its request (!) – should be considered prima facie evidence of an act of aggression. It might be argued that the lack of hostilities ensured that the use of armed force did not achieve the requisite gravity, which is essential as, according to the 1974 definition: “Although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity” (Article 2).

However, this kind of provision was introduced to avoid a situation in which mere border skirmishes would qualify as aggression. Definitely, the fact that the use of armed force resulted in the territory being annexed, and international borders changed, proves that the consequences of Russian activities were of sufficient gravity. The number of troops deployed also contradicts any suggestion as to the absence of sufficient gravity.

The definition of aggression requires that the use of force be against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations. There is no better proof that, in the case of Crimea, the use of force was against the territorial integrity of Ukraine than the result of the whole crisis – Ukraine lost part of its territory. As a result, an international border was altered by force, constituting a kind of violation of territorial integrity particularly viewed as inadmissible in the light of international law.[22] It must nonetheless be verified if there was any legal justification of the use of force by Russia against Ukraine, in the light of the UN Charter.

The UN Charter allows the use of force only when there is authorisation on behalf of the UN Security Council (Article 42), or in the case of self-defence in response to an armed attack (Article 51). Definitely, there was no authorisation for Russia to use force in Crimea. Moreover Russia did not even attempt to obtain such authorisation. Another exception from the prohibition of the use of force is self-defence, which encompasses the right to defend citizens of the intervening state. It can be used only in response to an armed attack. In the case of Crimea, there was no attack on the Crimean people, nor even the slightest threat of such an attack. Russia’s allegations that the Ukrainian authorities were working on the adoption of new law revising the language policy (directed against ethnic minorities) definitely does not constitute a reason justifying the use force in defence of those minorities. The life and health of members of those minorities was not endangered and the Russian reaction was disproportionate (in the sense of excessive), especially if account is taken of its final results. In addition, it should be stressed that the use of force in defence of nationals is just admissible in situations like attacks (or imminent threats of attack) on a state’s armed forces or diplomatic premises, or else where nationals are taken hostage, and the state on whose territory the nationals are proves unwilling or unable to protect them.[23]

However, Russia invoked two other legal arguments, not referred to directly in the UN Charter, as main justifications for its action, i.e. the invitation of the Ukrainian authorities and the right of the Crimean people to self-determination. Russia stressed that Yanukovych, still a legitimate President of Ukraine as he was toppled in violation of the Ukrainian Constitution – asked for Russian intervention. However, Russia revealed no document confirming that the said request was made by Yanukovych.[24] Also, the logical consequence of the Russian argumentation would be to say that Yanukovych had asked for intervention not to restore his position, secure territorial integrity and calm the situation in the state, but to ensure that part of his country was given to another state, with secession achieved in contravention of the Ukrainian Constitution.[25] This must raise major doubts as to the intentions of the intervening power, and such doubts undermine the whole legal justification of the use of force.[26] The fact that the request was also issued on behalf of the Crimean authorities[27] has no legal meaning, as international law does not allow intervention on behalf of insurgents.[28]

In the light of a lack of documents or any other official statements from Yanukovych that would confirm the Russian position, Russia decided to rely on the right to self-determination.[29] It emphasised that the Crimean people have the same right as the people of Ukraine, who separated from the USSR. In addition, Russia relies on the Kosovo “Precedent”.[30] In this context, it is crucial to remember GA Resolution 2626 of 24th October 1970, which stressed that:

Nothing in the foregoing paragraphs shall 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 conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour and also that Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.

The GA could hardly be clearer in expressing the prohibition on intervention in the internal affairs of a state on the pretext of self-determination. The people of Crimea have no right to external self-determination, as this right is only attributed to people of a colony or Non-Self-Governing Territory, and so-called remedy secession would be allowed only if there were no other way to secure self-determination within a Ukrainian state, and the rights of Crimean citizens were violated to such an extent that, e.g. crimes against humanity were committed[31]. None of these conditions were fulfilled in the Crimean case. The right of self-determination does not afford a right to secession.[32] In addition, it must be emphasised that the International Court of Justice has not sanctioned the so-called Kosovo Precedent, i.e. the right to secession, as it has stated, not that Kosovo has a right to secession, but only that the fact of issuing a declaration of independence cannot be considered a violation of international law.[33] The reference to Kosovo as a precedent could be adequate if the recognition of the statehood of Kosovo in 2008 were linked to violation of the law on the use of force by NATO in 1999. However, the linkage is weaker than in the Crimean case, as 9 years elapsed from the time of violation of the territorial integrity of Serbia through to its finally losing part of its territory – in comparison with a few weeks between the use of force by Russia and “reunion” with Crimea. There is no clear answer as to how much time must pass before secession achieved following the illegal use of force is legalised, but definitely a few days (as in the case of Crimea) is insufficient for the statehood of any entity to gain recognition, no matter how it was established.[34] In addition, even if we accept that separation of Kosovo from Serbia was a direct result of NATO’s illegal intervention, this does not mean that a new rule was established as ex iniuria ius non oritur.[35]

In summary, as there is no valid justification of the use of force by Russia against Ukraine, it must be stressed that Russia not only violated the UN Charter (Article 2 (4) which prohibits use of force, as well as a threat to use force against another state) but also several bilateral treaties which stress the importance of the obligation to respect the sovereignty and territorial integrity of Ukraine.[36]

Resolution 3314 lists (in a non-exhaustive way) acts which can be qualified as acts of aggression. Among them are some which can be related directly to the situation in Ukraine. Firstly, “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof” can be mentioned. This act requires invasion of, or an attack on territory, and it says nothing about the necessity of attacking the armed forces of another state. In consequence, the aggression can be committed without a single bullet fired or any blood shed. It should be noted that the seizure of Czechoslovakia and Austria was kept in mind as the aforementioned provision regarding invasion and annexation was drafted.[37] Invasion denotes a situation in which a state sends its troops into the territory of another state and maintains them there for an extended period.[38] A crossing of frontiers is therefore required and physical entry of troops on at least a part of the territory.[39] This was clearly the case in Crimea, but Resolution 3314 also qualifies as an act of aggression “the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement”. Article 6 (1) of the Agreement between Ukraine and the Russian Federation on the Status and Conditions of Presence of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine of 28th May 1997 (extended in 2010) reads: “Military units shall conduct their operations in the areas of disposition in accordance with the legislation of the Russian Federation, respect Ukraine’s sovereignty, obey its legislation and refrain from interference with Ukraine’s domestic affairs”. In addition, Article 8 (2) stresses that “Military units shall conduct exercise and other combat and operative training within the limits of training centers, training areas, positioning and dispersal areas, firing ranges, and, except forbidden zones, within the designated airspace as agreed with Ukraine’s competent authorities”. The indubitable moves of personnel of the Black Sea Fleet outside agreed zones is in contravention of the provisions mentioned and constitutes an act of aggression. It is in fact a variation of invasion, but its enumeration among acts of aggression served to emphasise that aggression can be committed without a violation of frontiers, from within the victim state. As was mentioned above, the definition deems to be aggression any military occupation resulting from an invasion or attack on territory. Considering that Russia once had and still has effective control over the Crimean Peninsula through the use of its armed forces, the IHL holds that the territory of the Autonomous Republic of Crimea and of the city of Sevastopol must be considered occupied.[40] The question of annexation is also beyond discussion. The separation was made against the will of Kiev, in violation of the Ukrainian Constitution and with the use of armed force. Resolution 3314 also indicates “the blockade of the ports or coasts of a State by the armed forces of another State” as an act of aggression. Ukrainians emphasise that the missile boat Ivanovets of the Black Sea Fleet of the Russian Federation blocked Balaklava Bay at a distance 5 cables from the shore.[41] In addition, as a part of the blockade, the sinking by the Russians of their own anti-submarine vessel Ochakov in the straits that connect the Black Sea with Lake Donuzlav could be considered, as this prevented vessels of the Ukrainian Navy from leaving a nearby base and going to sea.[42] In response to the Russian denial of any connection with the so-called ‘little green men’ (armed forces lacking state insignia on their uniforms), it is worth noting the considering as acts of aggression (under Article 3 (g) of GA Res. 3314) of: “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein”. The London definition considered, not only the sending, but any “Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take, in its own territory, all the measures in its power to deprive those bands of all assistance or protection” an action of an aggressor. It should be stressed that it was Russia that, during work on the definition of aggression, emphasised that aggression can be committed directly and indirectly, openly and covertly.[43] In consequence, as Russia fully controlled the groups of “little green men”, the operations the latter conducted can be attributed to Russia, with the result that another act of aggression can be said to have been committed by it.

3. “All animals are equal, but some animals are more equal than others”

The United Nations Security Council bears the “primary responsibility for the maintenance of international peace and security” (Article 24 of the UN Charter[44]) and that is why all Member States would expect it to react in a situation of aggression. The SC’s practice (which is in opposition to the letter of Article 39 of the UN Charter) has demonstrated that the Security Council does not have to expressly qualify a situation as aggression – or an instance thereof – in order to use all its powers, including military measures.[45] Furthermore, the SC makes extremely infrequent use of expressions such as “act of aggression” or “breach of the peace”. It prefers to talk about a “threat to peace”, which as a term is more vague, almost all-encompassing and neutral (in the sense that it fails to attach responsibility to a specific state).[46] Alternatively, the Council tends not to qualify a situation at all, confirming merely that it is “Acting under Chapter VII of the Charter of the United Nations” which is titled “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”.[47]

However, Russia (along with the United States, China, the UK, and France) enjoys the status of a Permanent Member of the SC, with a right to veto any non-procedural decision of the SC (under Article 27 of the UN Charter). Not surprisingly then, despite the conflict in Crimea being discussed during several meetings of the SC,[48] and despite some states stressing clearly that a violation on the prohibition on the use of force had taken place, the SC was not able to adopt any Resolution concerning the Crimean conflict. Even in the subsequent Resolution concerning the shooting down of MH17 and the adoption of the Minsk Accords, the SC did not acknowledge the conflict in Ukraine and mentioned only “tragic events and violence in eastern regions of Ukraine”.[49] In consequence, a question arises as to whether Russia (or any other Permanent Member of the SC), is actually bound by the prohibition on the use of force, or if it has a special de facto status within the region of Eastern Europe and Central Asia.

It is noticeable that none of the Permanent Members’ official statements undermine the legal value of the prohibition on the use of force in international relations. On the contrary, they prefer to stress the importance of legal constraints on the use of force as one of the most important aspects in line with which the situation is to be assessed.[50] Even in cases which international law requires to be qualified as violations of the prohibition on the use of force, states always attempted to justify their actions, by for example offering a broad understanding of self-defence or their humanitarian obligations towards a persecuted population.[51] Therefore a distinction must be drawn between using force in the name of some legal justification,[52] and using it as a method of conflict resolution.[53] Even if the death of the Article 2 (4) is announced with some regularity,[54] violations thereof that arise cannot be perceived as paving the way for the unrestricted use of armed force.[55] In the case of Crimea also, Russia made no claim to the effect that the prohibition on the use of force need not be applied. Instead, it merely stated that it had acted in line with international law.

Nevertheless, it is possible to observe how Permanent Members of the SC do indeed seem to consider their positions unique where the right to use force is concerned. Not surprisingly, the concept of hegemonic international law (HIL) is revived regularly, even if a majority of states reject any direct suggestion that states are unequal under international law.[56] HIL provides that, in the case of superpowers like the USA, there is a specific relationship with other states that might be compared with the bond between a patron and his clients.[57] This would denote obligations of patrons towards clients, e.g. defence of their territory, etc., but also grant the hegemon a right to intervene in a region. Superpowers certainly understand the meaning and usefulness of international law when it comes to other states being disciplined, with guidelines as to what is expected from dominated states being clear.[58] However, they are reluctant to place legal restrictions upon themselves. That is why they prefer to use indeterminate terms in treaties (if they decide to sign any) and are confident that any breach of customary law will be accepted as a new rule.[59] As Lauri Mälksoo emphasizes: “the international law of the UN Charter is a system of five powerful ‘oligarchs’, the winners of World War II (the P5 of the UN SC), against whose individual will no military intervention can be legally decided by any other power (the veto power of the P5)”.[60] In consequence, Russia does not accept the notion of the equality of all states, being convinced about the special status it enjoys (and the remainder of the P5 enjoy) on the basis of deals done at the conferences convened in Yalta and San Francisco. Thus, if Russia defends international law, it also defends its own privileges. Mälksoo stresses that Russian critics of Western violations of international law are in fact criticisms of the “disbalance of power”.[61] Russia would like to stick to the division of the world between the P5, and as the USA had (or still has) its own Monroe Doctrine within a specific region, so Russia has something similar for its own part of the world, within which it may pursue a transimperial policy which it calls the protection of “international law”. That is why Russia does not consider interventions in Ukraine or previously in Georgia to constitute a violation of the international legal order. This is further exacerbated by claims that, on the territory of a state that was supposed to be under Russian control/influence, there had been a rising of Nationalists, neo-Nazis, Russophobes and anti-Semites (the rhetoric harking back to World War II is not accidental). Understanding for the Russian approach could be seen among Permanent Members of the SC, when they talked about recognition and respect for “Russia’s historical ties to Ukraine”.[62] However, even if there is some understanding for a right to intervention in order to ensure peace and security, there has been, at least since World War II, no acceptance of any alteration of international borders by armed means. Even if a prohibition on non-interference is not applied by Permanent Members of the SC, and could be seen as fallen in desuetudo, no state nowadays claims that armed annexation is allowed. It must also be stressed that, even in cases of the violation of the law on the use of force by Western states, as was clearly the case in 1999 (Kosovo) and 2003 (Iraq), there were no territorial changes in favour of the intervening states. The most recent attempt to forcibly gain territory was Iraq’s invasion of Kuwait (justified by historic rights), and in this case, the Security Council acted unanimously.

There are suggestions that, in the case of Russia (as with other SC Permanent Members), international law has no role to play. This would mean that the status of Permanent Member of the SC makes any regulation of the use of force irrelevant when armed force is used by Russia, China, the US, the UK or France. However, this bitter statement is not entirely true. Prohibition of the use force in violation of the UN Charter, and the commission of aggression in particular, is considered jus cogens.[63] In consequence, in response to the serious breach of a peremptory norm, all states (as well as international governmental organisations) – even without a relevant decision of the SC – are obliged, not only to abstain from recognising as lawful a situation created by this breach (including non-recognition of any territorial acquisition or special advantage resulting from aggression), but also to abstain from rendering aid or assistance in maintaining such a situation. Furthermore, they should cooperate to bring a serious breach to an end through lawful means.[64] According to the International Law Commission’s Commentary, the seriousness of the breach is defined as “a gross or systematic failure by the responsible State to fulfil the obligation”, which would mean the appropriate intensity of the violation or its effects and deliberateness. In the light of the fact that aggression cannot be performed recklessly, and that the loss of territory is one of the gravest violations of territorial integrity, the seriousness of the breach of the law on the use of force (and the prohibition of aggression in particular) cannot be doubted in the case of Crimea.

Conclusions

The USSR has had a great impact in defining aggression, but not necessarily an impact on the promotion of its prohibition, as its actions demonstrate. The Crimean crisis can now be added to the list of violations of the prohibition on the use of force. In light of the definition adopted by the General Assembly in 1974, the actions of Russia in Crimea can readily qualify as several acts of aggression. Those who are convinced that all states are equal could accuse Russia of hypocrisy, especially if they refer to several Russian statements within the SC. These statements address the importance of sovereignty and territorial integrity at a time when Russia wanted to prevent other governments from intervening in Syria. These comments were made almost simultaneously with Russia’s intervention in Ukraine. However, Russia perceives itself as a defender of international law; it is just that – in line with its own understanding of the latter – Russia as such is not equal to other states, but instead enjoys a specially privileged status. This allows Russia to intervene, at least in a region that post-WWII agreements accepted as under Russian control. Like many other states, Russia is inclined to mix political arguments with legal ones. Nevertheless, the specific nature of the Russian approach to international law does not change the fact that it violated the peremptory norm regarding the prohibition of the use of force, which means that other states and international organisations are obliged to react. Ukraine had a right to use force in self-defence against Russia, and Russia should bear the legal consequences of its internationally wrongful act.

Abstract: The article firstly assesses the role of the USSR as a predecessor of the Russian Federation in defining aggression in international law, especially in relation to introduction of the principle of the “first use of force” in the final version of the definition adopted by the General Assembly in 1974. Secondly, the Crimean conflict is analysed in light of the definition of aggression. It is proven that several acts of aggression were committed by Russia in 2014 against Ukraine. Thirdly, taking into account the position of the Russian Federation as a Permanent Member of the United Nations Security Council, an attempt is made to answer a question as to whether prohibition of aggression is and should be applicable to Russia. The question of the effectiveness of international law in relation to Permanent Members of the Security Council is addressed, as well as relevance of the concept of hegemonic international law.

Key words: annexation, Crimea, Russia/USSR, definition of aggression, hegemonic international law.

[*] Patrycja Grzebyk, Ph.D., Adjunct Professor at the University of Warsaw (Institute of International Relations). She is an author of a monograph Criminal Responsibility for the Crime of Aggression, Routledge 2013 and many other publications.

[1] Allegedly only one Ukrainian soldier was killed and two injured, see BBC, Ukraine officer ‘killed in attack on Crimea base’, 18.03.2014, http://www.bbc.com/news/world-europe-26637296 [accessed: 29.10.2017].

[2] The UN General Assembly stated in Res. 68/262 of 27.03.2014: ‘the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol’. See also A. Peters, The Crimean Vote of March 2014 as an Abuse of the Institution of the Territorial Referendum, in: Ch. Calliess (ed.), Liber amicorum Torsten Stein, Nomos Verlag, Baden-Baden: 2015; A. Catala, Secession and Annexation: The Case of Crimea, 16 Ger. Law J. 581 (2015), p. 602.

[3] T.A. Olszański, A. Wierzbowska-Miazga, The consequences of the annexation of Crimea, The Center of Eastern Studies, Analyses, 19.03.2014, https://www.osw.waw.pl/en/publikacje/analyses/2014-03-19/consequences-annexation-crimea [accessed: 29.10.2017].

[4] E.g. S/PV.7124, 1.03.2014; S/PV.7125, 3.03.2014.

[5] E.g. Russian actions were labelled aggression by the UK (S/PV.7124, 1.03.2014), Jordan and Australia, (S/PV.7125, 3.03.2014), Lithuania (S/PV.7134, 13.03.2014), the US and France (S/PV.7138, 15.03.2014).

[6] See e.g. Opinia Doradczego Komitetu Prawnego przy Ministrze Spraw Zagranicznych RP w sprawie przyłączenia Półwyspu Krymskiego do Federacji Rosyjskiej w świetle prawa międzynarodowego [Advisory Opinion of the Legal Committee of the Ministry of Foreign Affairs of the Republic of Poland on accession of the Crimean Peninsula to the Russian Federation in light of International Law], 22.06.2014, http://www.msz.gov.pl/pl/aktualnosci/wiadomosci/przylaczenie_krymu_do_federacji_rosyjskiej_w_swietle_prawa_miedzynarodowego [accessed: 29.10.2017]; V. Bílková, The Use of Force by the Russian Federation in Crimea, 75 Heidelberg J. Int’l L. (2015), p. 27ff.; A. Lagerwall, L’agression et l’annexion de la Crimée par la Fédération de Russie: quels enseignements au sujet du droit international?, 1 QIL (2014), p. 63ff.; Th. Grant, Aggression against Ukraine: Territory, Responsibility, and International Law, Palgrave, New York: 2015, p. 11ff.; A. Tancredi, The Russian Annexation of the Crimea: Questions Relating to the Use of Force, 1 QIL 5 (2014), p. 9; Th. Christakis, Les conflits de secession en Crimée et dans l’Est de l’Ukraine et le droit international, 141 Journal de droit international 733 (2014), p. 750.

[7] Vladimir Putin’s address to State Duma deputies, Federation Council Members, heads of Russian regions and civil society representatives at the Kremlin, 18 March 2014, available at: http://en.kremlin.ru/events/president/news/20603 [accessed: 29.10.2017].

[8] See the Circular Letter to the Executive Council of the International Law Association, sent by the Executive Board of the Russian Association of International Law (June 2014), https://mgimo.ru/about/news/departments/252984/ [accessed: 29.10.2017]. There were only a few Russian voices against official statements on the legality of annexation, e.g. that of MGIMO History Professor Andrey Borisovich Zubov (who was fired in March 2014 because of his critical assessment of the annexation of Crimea), see L. Mälksoo, Russian Approaches to International Law, Oxford University Press, Oxford: 2015, p. 31; cf. also with: M. Issaeva, Does “Russian international law” have an international academic future?, Eur. J. Int’l L.: Talk!, 21.09.2015.

[9] See e.g. Art. 116 of the Polish Constitution of 2.04.1997 Dziennik Ustaw no. 78, item 483 (http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm [accessed: 29.10.2017]): 1. The Sejm shall declare, in the name of the Republic of Poland, a state of war and the conclusion of peace. 2. The Sejm may adopt a resolution on a state of war only in the event of armed aggression against the territory of the Republic of Poland or when an obligation of common defence against aggression arises by virtue of international agreements. If the Sejm cannot assemble for a sitting, the President of the Republic may declare a state of war.

[10] The recognition of the Russian Federation as a legal successor or continuator of the USSR was confirmed by its taking on the position at the UN Security Council. Cf. K. Karski, Kontynuacja prawnomiędzynarodowej podmiotowości ZSRR i jego części składowych przez państwa istniejące na obszarze postradzieckim, 45 Studia Iuridica 73 (2006), p. 76.

[11] See more O. Solera, Defining the Crime of Aggression, Cameron May, London: 2007, p. 34ff.; P. Grzebyk, Criminal Responsibility for the Crime of Aggression, Routledge, New York: 2013, p. 42.

[12] The Convention for the Definition of Aggression was signed between Romania, Estonia, Latvia, Poland, Turkey, the Soviet Union, Persia and Afghanistan, 3.07.1933, 147 LNTS, p. 67ff. (acceded to by Finland on 31.01.1934); the Convention defining aggression between Czechoslovakia, Romania, Turkey, the Soviet Union and Yugoslavia, 4.07.1933, 148 LNTS, p. 211ff.; a Convention defining aggression was also signed between the Soviet Union and Lithuania, 5.07.1933, 148 LNTS, p. 79 (see R.M. Slusser, J.F. Triska, A Calendar of Soviet Treaties, 1917–1957, Stanford University Press, Stanford: 1959, p. 88–89.

[13] Solera, supra note 11, p. 138–139.

[14] See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27.06.1986, para. 195.

[15] 2187 UNTS 3ff. More on works defining aggression for the sake of the International Criminal Court, see S. Barriga, C. Kreß, The Travaux Préparatoires of the Crime of Aggression, Cambridge University Press, Cambridge: 2012; Grzebyk, supra note 11, p. 110ff.

[16] ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27.06.1986, para. 231.

[17] See W. Czapliński, Skutki prawne nielegalnego użycia siły w stosunkach międzynarodowych, PAN, WN Scholar, Warsaw: 1993, p. 26; A. Van Wynen Thomas, A.J. Thomas Jr., The Concept of Aggression in International Law, Southern Methodist University Press, Dallas: 1972, p. 19–20.

[18] Ch.S. Bartman, Lawfare: Use of the Definition of Aggressive War by the Soviet and Russian Federation Governments, Cambridge Scholars Publishing, Cambridge: 2010.

[19] I.C. Kamiński, International Law Aspects of the Situation in Ukraine, in: K. Bachmann, I. Lyubashenko (eds.), Maidan Uprising, Separatism and Foreign Intervention: Ukraine’s complex transition, Peter Lang, Frankfurt am Main: 2014, p. 384.

[20] Art. 44 (3) and (7) of the Protocol Additional to the Geneva Conventions of 12.08.1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8.06.1977, 1125 UNTS 3.

[21] Y. Dinstein, War, Aggression and Self-Defence, Cambridge University Press, Cambridge: 2005, p. 188–189.

[22] GA res. 2625, 24.10.1970.

[23] See J. Kranz, Kilka uwag na tle aneksji Krymu przez Rosję [Some remarks on the annexation of Crimea by Russia] 822 PiP 23 (2014), 33. In the context of Russian intervention it can be recalled how the Independent International Fact-Finding Mission on the Conflict in Georgia stated: There is probably not one single instance in state practice where a state invoked an independent, stand-alone entitlement to rescue its nationals, without relying on one of the classic grounds of justification. In state practice, none of the arguments advanced by states in order to justify military interventions in favour of their nationals has been accepted by the entire community of states. The prevailing reactions were rather reprobation, e.g. in the case of the Congo, Grenada and Panama, Independent International Fact-Finding Mission on the Conflict in Georgia, Report, vol. II, p. 286-287, September 2009, www.mpil.de/files/pdf4/IIFFMCG_Volume_II1.pdf [accessed: 29.10.2017].

[24] S/PV.7125, 3.03.2014.

[25] Under Art. 73 of the Ukrainian Constitution of 28.06.1996: Issues of altering the territory of Ukraine are resolved exclusively by an All-Ukrainian referendum, www.faolex.fao.org/docs/pdf/ukr127467E.pdf [accessed: 29.10.2017].

[26] United Nations, Report of the Special Committee on the Problem of Hungary, General Assembly Official Records: Eleventh Session Supplement no. 18, A/3592, New York 1957, para. 266.

[27] Премьер Крыма попросил Путина обеспечить мир на полуострове, 1.03.2014, http://vestiprim.ru/news/society/4058-premer-kryma-poprosil-putina-obespechit-mir-na-poluostrove.html [accessed: 29.10.2017].

[28] ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27.06.1986, para. 246.

[29] See also V. Tolstykh, Reunification of Crimea with Russia: A Russian Perspective, 13 Ch. J. Int’l L. 879 (2014).

[30] Vladimir Putin addressed State Duma deputies, Federation Council members, heads of Russian regions and civil society representatives at the Kremlin, 18.03.2014, http://eng.kremlin.ru/news/6889 [accessed: 29.10.2017].

[31] Kranz, supra note 23, p. 26; G. Wilson, Crimea: Some Observations on Secession and Intervention in Partial Response to Müllerson and Tolstykh, 14 Ch. J. Int’l L. 217 (2015), p. 219. See also Supreme Court (Canada), Reference resecession of Quebec, Judgment, 20.08.1998, 2 SCR 217, paras. 126, 138. More extensively on this issue, see Christakis, supra note 6, p. 737ff.

[32] See more C. Mik, Opinia prawna w sprawie statusu prawnomiędzynarodowego przestrzeni powietrznej nad Półwyspem Krymskim po zajęciu Krymu przez Federację Rosyjską (ze szczególnym uwzględnieniem kompetencji ICAO) [Legal Opinion on the International Status of Airspace over the Crimean Peninsula after Seizure of Crimea by the Russian Federation (with particular focus on competences of ICAO)], 43 Zeszyty Prawnicze Biura Analiz Sejmowych Kancelarii Sejmu 81 (2014), p. 86ff.

[33] ICJ, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion, 22.07.2010, para. 84.

[34] The Declaration of Independence of the Republic of Crimea was adopted on 11.03.2014 by the Supreme Council of Crimea and the Sevastopol. A Crimea status referendum was held on 16.03.2014. The agreement on accession was adopted just two days later on 18.03.2014. See also A. Pronin, Republic of Crimea: A Two-Day State, 3 Russ. Law J. 133 (2015).

[35] A. Cassese, Ex iniuria ius oritur: Are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?, 10 Eur. J. Int’l L. 23 (1999).

[36] At the very least mention can be made of: the Agreement between Ukraine and the Russian Federation on the Status and Conditions of Presence of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine, 28.05.1997 (extended in 2010), the Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation, 31.05.1997, the Agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation on the Use of Airspace of Ukraine and of Airspace Over the Black Sea, Where Ukraine is Responsible for Security of Flights and Organization of Servicing of Air Traffic, by the Forces and Resources of the Black Sea Fleet of the Russian Federation, 16.07.1999 (see Ministry of Foreign Affairs of Ukraine, On Violations of Ukraine’s Laws in Force and of Ukrainian-Russian Agreements by Military Units of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine, 3.03.2014, http://mfa.gov.ua/en/news-feeds/foreign-offices-news/18622-shhodo-porusheny-chinnogo-zakonodavstva-ukrajini-ta-ukrajinsyko-rosijsykih-ugod-vijsykovimi-formuvannyami-chf-rf-na-teritoriji-ukrajini [accessed: 29.10.2017].

[37] The Nuremberg Tribunal distinguished between non-criminal acts of aggression (actions in Austria and Czechoslovakia) and criminal wars of aggression (among which the attack on Poland was chronologically the first), however the differentiation does not hold in an analysis of the subsequent Nuremberg Trials (e.g. the Ministries Trial).

[38] Solera, supra note 11, p. 67.

[39] A. Constantinou, The Right of Self-defence under Customary International Law and Article 51 of the UN Charter, Ant. Sakkoulas, Bruylant: 2000, p. 67.

[40] The Hague Regulation of 18 October 1907, Art. 42 (205 C.T.S. 305) states as follows: “[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”. More on the status of the Crimean conflict in the light of international humanitarian law, see P. Grzebyk, Classification of the Conflict between Ukraine and Russia in International Law (Ius ad Bellum and Ius in Bello), 34 PYIL 39 (2015), p. 48ff.

[41] Ministry of Foreign Affairs of Ukraine, supra note 36.

[42] Ch.K. Chumley, Russia accused of sinking own cruiser to block Ukrainian navy, The Washington Times, 7.03.2014, http://www.washingtontimes.com/news/2014/mar/7/russia-accused-sinking-own-cruiser-block-ukrainian/ [accessed: 29.10.2017].

[43] See also GA Resolution 380 (Peace Through Deeds), dated 17.11.1950, which read: “whatever the weapons used, any aggression, whether committed openly, or by fomenting civil strife in the interest of a foreign Power, or otherwise, is the gravest of all crimes against peace and security throughout the world”.

[44] Charter of the United Nations, 26.06.1945, 1 UNTS XVI.

[45] Grzebyk, supra note 11, p. 28.

[46] I. Ósterdahl, Threat to the Peace. The Interpretation by the Security Council of Article 39 of the United Nations Charter, Iustus Forlag, Uppsala: 1998, passim; I. Popiuk-Rysińska, Ewolucja system zbiorowego bezpieczeństwa Narodów Zjednoczonych po Zimnej Wojnie, Elipsa, Warszawa: 2013, 265ff.

[47] See e.g. S/RES/253, 29.05.1968.

[48] See S/PV.7123 (closed), 28.02.2014; S/PV.7124, 1.03.2014, SC/11302; S/PV.7125, 3.03.2014, SC/11305; S/PV.7131 (closed), 10.03.2014; S/PV.7134, 13.03.2014, SC/11314; S/PV.7138, 15.03.2014, SC/11319; S/PV.7144, 19.03.2014, SC/11328.

[49] S/RES/2166, 21.07.2014; S/RES/2202, 17.02.2015.

[50] See comments during the SC session of 1.03, S/PV.7124, during which e.g. Samantha Power (US) stressed: “This intervention is without legal basis”; and Sir Mark Lyall Grant (UK) stated that: “We have therefore sought an immediate and full explanation from the Russian Federation for the decision to authorise military action on sovereign Ukrainian soil, and of the basis for it under international law”.

[51] See e.g. American explanations of the need to intervene in Iraq in 2003 (S/PV.4701, 5.02.2003, SC/7658) or in Kosovo in 1999 (S/PV.3989, 26.03.1999, SC/6659).

[52] It is characteristic that some experts try to validate the use of force in particular situations (like NATO’s intervention in Kosovo in 1999) as legitimate, meaning politically and morally justified, although illegal. See e.g. The Independent International Commission on Kosovo, The Kosovo Report. Conflict, International Response, Lessons Learned, Oxford University Press, Oxford: 2000, p. 4, in which it is stated that: “The Commission concludes that the NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However, the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule. In my opinion, such juggle of terms ‘legal’ and ‘legitimate’ is inappropriate as a common understanding of the word legitimate is being in compliance with the law; lawful” (report available at http://www.cfr.org/kosovo/independent-international-commission-kosovo-kosovo-report-executive-summary/p25962 [accessed: 30.09.2015]). Cf. also J. Kranz, Między wojną a pokojem: świat współczesny wobec użycia siły zbrojnej, in: idem (ed.), Świat współczesny wobec użycia siły zbrojnej. Dylematy prawa i polityki, Instytut Wydawniczy EuroPrawo, Warszawa: 2009, p. 141.

[53] Grzebyk, supra note 11, p. 38.

[54] Th.M. Franck, Who killed Article 2(4)? Or: changing norms governing the use of force by states, 64 Am. J. of Int’l L. 809 (1970); idem, What happens now? The United Nations after Iraq, 97 Am. J. of Int’l L. 607 (2003), p. 610.

[55] Dinstein, supra note 21, p. 94.

[56] See General Assembly Resolution 34/103, 14.12.1979 (‘Inadmissibility of the Policy of Hegemonism in International Relations’) opposed by the US, Australia, Canada, Israel with many (26) abstentions.

[57] D.F. Vagts, Hegemonic International Law, 95 Am. J. Of Int’l L. 843 (2001), p. 844.

[58] Ibidem, p. 845.

[59] J.E. Alvarez, Hegemonic International Law Revisited, 97 Am. J. Of Int’l L. 873 (2003).

[60] Mälksoo, supra note 8, p. 174.

[61] Ibidem, p. 175.

[62] S/PV.7124. On historic ties between Russia and Crimea, see D. Wydra, The Crimea Conundrum: The Tug of War Between Russia and Ukraine on the Questions of Autonomy and Self-Determination, 10 International Journal on Minority and Group Rights 111 (2004), p. 112ff.; P. Hilpold, Ukraine, Crimea and New International Law: Balancing International Law with Arguments Drawn from History, 14 Ch. J. Int’l L. 237 (2014).

[63] Commentary of the ILC on Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission 2001, vol. II, part 2, p. 112; C. Mik, Ius cogens in Contemporary International Law, 33 PYIL 56 (2013).

[64] See Art. 41, Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (GA res. 56/83, 12.12.2001) and Art. 42, Articles on Responsibility of International Organizations), 2011 (GA res. 66/100, 9.12.2011).

A Quarter of a Century on from the Soviet Era: Reflections on Russian Doctrinal Responses to the Annexation of Crimea[*]
Maria Issaeva[**]

doi: 10.7366/9014Crimea8

– A failed state is a state that has no strategic potential.

– What is your authority for this statement?

– Geopolitics!

Introduction

The justifications offered by Russia for its actions in Crimea in 2014 were met with scepticism by the international community and international lawyers across various jurisdictions.[1]

Among Russian international legal scholars there were almost no critical voices willing to assess Crimea’s annexation as at least questionable under international law.[2] Rather, these scholars, in their overwhelming majority, spoke or wrote on the matter in feverish defence of Russia’s actions.

The epigraph to this article provides one example of many absurd dialogues the international legal community has had to have with representatives of the “Russian tradition of international law” following the annexation of Crimea.[3] This type of argument has often been offered by a variety of Russian scholars coming from various leading Russian universities.[4]

To an outside observer, the justifications offered by Russian doctrine in response to the annexation of Crimea may look like a bizarre, or preconceived, mix of arguments involving the domestic affairs of Ukraine (disguised as issues of its alleged failed statehood), use of force by the “West”, and Russia’s self-proclaimed lawful intervention on the basis of the above.

Although discussions on Crimea involve matters of general international law and seemingly interpret the same applicable treaties and rules, structures of argumentation derived from Russian doctrine appear to be based on entirely different premises when compared with those of all other international legal commentators.

As the acceptance of polyphony of different schools and traditions of international law across the world continues to grow, in an era of growing scepticism regarding the universality of international law among international lawyers, the “Russian school” might have a strong case. Yet, acknowledging the strength of one’s case for regionalism without any reservation may, in extreme situations, lead to the dilution of the profession itself.

This article explores the interpretation of facts and law by the Russian doctrine seeking to respond to a question whether the argumentative structure offered for such interpretation is within the ambit of the existing international legal framework. It suggests that, academically, the Crimean situation should be taken as an example why it is extremely important to include issues of competence, professional integrity and ethical conduct in the comparative analyses of existing approaches to international law as proposed sine qua non features of the profession of international legal academic.

In this article, the term ‘Russian doctrine’ is used to denote the leading view on the legality of Crimea’s annexation among Russian international scholars. In order to avoid a general ad hominem approach, the following critique will mostly focus on a number of positions voiced by leading proponents of the Russian doctrine, who have previously authored Russian international law textbooks or monographs, and who thus affect the teaching of international law in Russia.

1. Interpretation of facts in the case of Crimea – a flashback from the Soviet past

Arguments presented by representatives of Russian international law doctrine in the course of 2014 and 2015 are typically predicated on a particular interpretation of the facts, as accompanied by a very specific choice of wording (designated in quotation marks in what follows). According to this interpretation, a “military’”[5] “unconstitutional”[6] coup d’état[7] in Kiev in February 2014 saw a new “illegitimate government”[8] come to power in Ukraine, and as the result of intervention by the West[9] – “sponsors of Kyiv”[10] who “handed out cookies on Maidan and exerted enormous pressure on President Yanukovich”,[11] thus “organising”[12] the Maidan revolution.[13] This new Ukrainian government – or even “junta”[14] – is composed of “nationalists”[15], “pro-Bandera”[16] and “nazis”[17] or “neo-Nazis”,[18] and the “advocates of radicalism and even fascism”.[19] This coup, which immediately subjected the Russian-speaking population of Ukraine to linguistic persecution on the basis of a draft law, and deprived Crimeans of all seats in the Ukrainian Parliament,[20] gave rise to Russia’s international-law obligations to protect its “compatriots”[21] from “large-scale” and “grave” violations of human rights,[22] as well as to the right of Crimea to secede.[23] Russian soldiers left their military stations in Crimea; however, no unlawful use of force took place.[24] According to this interpretation of the facts, no Russian troops have ever been present in Eastern Ukraine – any Russian soldier present on the territory is a volunteer helping Eastern Ukrainians in their civil war.[25]

As if to cause even more confusion, the ordinary meaning of the word “annexation” in the modern Russian language has turned out to be “an illegal and forcible seizure of territory”, as opposed to the English meaning of the term which is more neutral, denoting lawful annexation.[26] The Russian understanding of the word could possibly be echoing the old propaganda from early Soviet years.[27] Whatever the reasons, the Russian doctrine expressly refused to use the term “annexation” – in either the Russian or English languages – with regard to Crimea, adding to the peculiar aforementioned means of interpreting the facts of the crisis.

The above interpretation of facts has little in common with reality. As commentators note,[28] it instead reflects the propagandist picture painted by the pro-governmental Russian mass-media during the Ukrainian crisis.[29] As such, it is intended to affect its target audience emotionally, rather than to act as a verifiable statement of facts on which proper legal analysis may be founded.

Taking due note of the argument regarding the reverse impossibility of portraying Western media as completely unbiased, too, I would like to note that the biases of any mass media are largely irrelevant anyway, as what matters is the academic approach and methodology used in establishing the facts of the case. Thus, in assessing the ability of the Russian doctrinal academia to deliver an international legal argument, we should first and foremost pay attention to lack of attention they demonstrated to the points of view outside the Kremlin-dictated position on the situation in Ukraine and their failure to address facts as established by international governmental and non-governmental organisations.

Importantly, this method of factual interpretation by the Russian doctrine is not new: “The international drama in the simplified Soviet arrangement is reduced to the struggle of heroes without blemish – the Soviet Union and her partners – against utterly black characters – the Western Powers with the United States as their head”, wrote Wladyslaw Kulski in his comments on the Soviet State and Law journal in 1952.[30]

As if in a time-loop, according to statements made by the Russian state with regard to the Ukrainian crisis, no matter what actions it took during 2014, it continuously maintained the role proclaimed by its 2013 Foreign Policy Concept[31] – that of a defender and guardian of international law.

Furthermore, as Julian Ku writes on Opinio Juris,

Russia could be understood to be arguing the facts (see, Crimea really is threatened by the fascists in Kiev) rather than the law. I think it is a pretty ludicrous factual argument, but there it is.[32]

In this regard, if we look at the history of the USSR, a similar rhetoric of “fascist putsches” by “reactionary and fascist-like elements” of “black reaction and counterrevolution” forces was used by the Soviet government during the German uprising, and the Czech and Hungarian crises, of the twentieth century.[33]

Likewise, Russia’s “failed state” rhetoric with respect to Ukraine appears to be a replica of the USSR’s behaviour during the pre-WWII time of the occupation of Poland by Germany.[34] Russia’s lack of involvement in the “civil war” in Eastern Ukraine brings to mind the USSR’s lack of involvement in the “civil war” in Finland in 1939–1940.[35]

The period from 2014 appears to have seen comprehensive work done within Russia to justify that country’s actions in Crimea. While the above rhetoric from Russian officialdom may be explained in relation to political, rather than legal, considerations, many political invocations are aimed principally at a domestic audience. In these circumstances, what would seem to be of crucial importance and value is a professional legal community capable of responding critically to political statements and exaggerations.

Instead, the Crimea situation makes it abundantly clear that Russia’s doctrinal community of international lawyers is incapable of resisting the mainstream political will of the day. Indeed, it does not even see critical engagement as one of its principal tasks.[36]

The next sections address legal, rather than factual, argumentation offered to the situation with Crimea by the Russian doctrine of international law.

2. Overview of the Russian legal argumentation in the case of Crimea

The various ex cathedra and official legal arguments founded on the above factual interpretation, normally include a combination of the following assertions: firstly, Russia did not unlawfully use force in the case of Crimea because it never exceeded the numbers of personnel allowed under the Black Sea Fleet Agreements,[37] and no-one was killed during the secession or annexation (or, as routinely referred to, re-integration) of Crimea.[38] Even if Russia did use force in Crimea, it did so to protect the Russian speaking population on the invitation of the legitimate leaders of Ukraine and Crimea.[39] Furthermore, the Crimeans are a people,[40] and they lawfully seceded from Ukraine on the basis of their own free will and a referendum scheduled and run in accordance with the applicable rules of international law.[41] Russian troops were present in Crimea over the course of this referendum in order to ensure that Ukrainian forces did not intervene in this expression of free will by the Crimean people.[42] A special operation ordered by the Russian President to “return Crimea to Russia”[43] on 22 February 2014 had no bearing on the free expression of the will of the Crimean people.[44] No treaties between Russia and Ukraine were in effect at the time of secession because Ukraine had lost its statehood, and a new state had emerged, to which Russia owed no obligations under international law.[45] The 1994 Budapest Memorandum and the 1975 Helsinki Final Act are political documents, which never implied any legal obligations for their parties, except for the obligation not to use nuclear weapons, which is being complied with.[46] These arguments constitute the mainstay of the Russian response. Later in the course of 2014, a new set of arguments was added, to the effect that the transfer of Crimea to Ukraine in 1954 had been unlawful, and Ukraine had been performing a peaceful annexation of Crimea since the collapse of the Soviet Union in 1991.[47]

Such arguments constitute the mainstay of the Russian response. They will be analysed below through issues of statehood, territorial integrity vis-à-vis self-determination, R2P and use of force. It will be shown how the positions on each of these four cornerstone concepts of international law underwent a radical shift as compared with the prior academic views of the Russian doctrinal academics.

2.1. The issue of Ukraine’s statehood

The argument concerning Ukraine allegedly being a failed state is apparently rooted in the following remark by the Russian President made in early March 2014:

it is hard not to agree with some of our experts who say that a new state is now emerging in this territory. This is just like what happened when the Russian Empire collapsed after the 1917 Revolution and a new state emerged. And this would be a new state with which we have signed no binding agreements.[48]

It would be difficult to imagine a more confused – or confusing – statement on the subject of international legal personality, and a more illustrative one for the purpose of this article. In the remark, the President confuses the issue of recognition of states with the issue of recognition of governments, and does so displaying an astonishing ignorance of Russian history. The example of Soviet Russia’s lack of continuity after the Russian Empire as a State is completely wrong on the facts. Indeed, the USSR continued after the Russian Empire, despite the new Soviet government’s claims to be a new State, but other states did not accept this proposition.[49] The transitions between the Russian Empire and the USSR (and then from the USSR to modern Russia) have in fact been among the building blocks of the modern theory of statehood and state succession, with its strongest possible presumption in favour of the existing states, including in the event of changes in government. To claim otherwise is to go back to the understanding of the issues of statehood and recognition of the 18th–19th centuries.[50] The advice of “some experts” referred to in the statement could not be more wrong from the standpoint of international law.

In such a case, one would expect Russian international scholars to pick up on this – as one of the most fundamental issues in international law and the history of Russia.

However, that was entirely not the case.

At the round table on the international legal aspects of Crimea’s joining Russia, Professor Stanislav Chernichenko of the Diplomatic Academy of Russia – one of the most senior representatives of Russian doctrine[51] – said:

Who did we have to enter an agreement with, regarding the transfer of Crimea to Russia? [There was] no one. I mean the position of Russia. Yes, Ukraine is a subject of international law. Yes, we indeed had an agreement with Ukraine concerning the territorial integrity of Ukraine. Furthermore, we can recall the [Budapest memorandum]. Yes, indeed. However, when they say that we annexed the Crimean Peninsula, that we failed to comply with a provision of the relevant agreements, the question arises – excuse us, have we violated those provisions? We violated none of the provisions of these agreements. In the situation that we faced, in a legal sense, there was no public authority in Ukraine, it did not exist. This is our position. Who could we negotiate with? Hence, in this situation we could only by guided by the expression of will of the Crimean population. Only after [the declaration of independence of Crimea and the referendum] we could speak of restoration of our historical rights to Crimea.[52]

In two articles published in 2014, Professor Vladislav Tolstykh of the Novosibirsk State University argued:

Thus, the coup produced a “contraction of the state”: the creation of a smaller state, consisting of those who supported the coup and excluding those who did not support it. Thirdly, automatic recovery of the ‘big state’ has not happened: many people refused to recognize the new government, and the latter, in turn, did not want to take into account their interests, and failed to secure obedience to its will. Those who had not supported the coup returned to their natural state and received the right to enter into a new social contract or to join an existing contract. Under these conditions, the population of Crimea chose to implement this right through an alliance with Russia. Fourthly, the liability for the secession of Crimea is not on its population but on the political forces that initiated the dissolution of the social contract and claimed the representation of the general will without proper justification. Fifthly, not being implicated in the coup in Ukraine, Russia cannot bear the liability for its consequences, one of which is the return of the Crimean population to its natural state.[53]

In the Russian version of the article, Tolstykh is even more explicit:

The main reason justifying participation of Russia in the process of self-determination of Crimea is the dissipation of Ukrainian statehood which entailed […] creation of a smaller state.[54]

In a stark contrast to their above statements, the textbooks by Tolstykh and Chernichenko both acknowledge population, territory, and public authority as necessary elements of a state;[55] distinguish between recognition of states and governments;[56] and both appear to give prevalence to the declaratory theory of state recognition.[57]

Furthermore, according to Tolstykh:

[t]he necessary condition for recognition of a government is its effectiveness, that is, the exercise of control over a significant part of state territory. The legality of the new government’s coming to power from the standpoint of domestic law is not a precondition for its recognition. Making it a condition may be qualified as illegal intervention into domestic affairs.[58]

With respect to the matter of succession, in his textbook, Tolstykh expressly concludes, referring to the Tinoco Arbitration, that “a question of succession should not arise in the event of a change in a political regime, even if such change is followed by a dramatic breakage of social and economic mechanisms”.[59]

Chernichenko, however, is more careful with the choice of positions in his textbook. In the relevant chapter, he makes the following statement:

the public authority that ousted the previous government with the use of military force, may not substantially differ from the government in a traditional sense.[60]

The following passage explains the choice of the verb “may” by Chernichenko in the previous sentence: “A lot in this regard depends on the particular situation, political far-sightedness [sic] and other circumstances”.[61]

The topic of succession in the following chapter is addressed even more vaguely:

The doctrine is not unanimous on the matter of emerging of a new subject of international law in case of radical social changes as a result of revolution. In the events of dramatic restructuring of a society and the breakage of the old state machine (such as, e.g. in France in 1789) the question on succession did not always arise. If the subject were not changed in such situation, then there would be no issue of succession. However, if we admit that subject changes in such situations, then, seemingly, the new subject should be completely free of the rights and obligations of its predecessor for the exact reason of it being a new subject. However, such a question has never arisen.[62]

Notably, Chernichenko writes repeating the Soviet style of drafting textbooks that seemed to be designed specifically to “hide” any international law interpretations existing outside of the Soviet bubble: Soviet textbooks contained almost no footnotes, presented authors’ knowledge of international law without or with minimal references to sources, and had conclusions and opinions of the authors formulated in a very vague manner.

In view of this, it is hardly surprising that this Soviet textbook style used by Chernichenko has proven quite practical in yet another ‘particular situation’ which required a shift in academic international law interpretation – the current Russian position on Crimea after 2014.

2.2. Territorial integrity vs self-determination

The aforementioned inability of Tolstykh and Chernichenko to maintain consistency with their own reasoning is not unique to these writers, when it comes to the situation in Crimea. It is not just that most of the written or spoken positions of those representative of the Russian doctrine since 2014 cannot be aligned with their own declared approaches to territorial sovereignty, statehood and treaty interpretation before the situation in Crimea arose. It is also that they fail to address Russia’s previous practice and opinio juris.

Above all, there is a remarkable shift in position observable on the part of vocal proponents of the legality of Crimea’s annexation, who had previously devoted endless pages to establishing the predominance of territorial integrity over self-determination (including in the case of Kosovo),[63] with this U-turn not seeming to raise any concern on their part. The shift is also in clear contradiction of the Russian domestic approach to the right of its regions to secede, as reflected, for example, in 1992 and 1995 pronouncements of the Russian Constitutional Court concerning Tatarstan and Chechnya respectively.[64]

Furthermore, readings of international law according to which a people residing in a particular territory have the right to external self-determination without the consent of their home country contradicts the position taken by Russia during the 2009 Kosovo proceedings before the ICJ. Here, Russia averred that “the words ‘the will of the people’ […] could very well encompass the whole population of the country concerned, or else reflect the general notion of ‘popular will’ as a principle of democracy”. [65] In practical terms, if applied to the situation in Crimea, this earlier Russian reading of international law would have required the holding of a Ukraine-wide referendum on Crimea’s secession.[66] When combined with Russian argumentation in the Kosovo proceedings, according to which a Ukraine-wide referendum on Crimea’s secession would have been required,[67] the use of the Russian military to unite Crimea in February-April 2014 clearly amounted to coercive intervention in the domestic affairs of Ukraine by Russia, as prohibited under international law.

The lack of any sensible discussion of the correlation of the arguments developed by the Russian doctrine before and after 2014 is, to say the least, startling.

2.3. A shift in the approach to R2P

Active opponents of permissibility of the Responsibility to Protect (R2P) without an authorisation of the UN Security Council, are now those same Russian international-law scholars who make ready use of the concept with regard to Crimea – doing so as if these arguments were axiomatic, and applying it to the aforesaid highly questionable interpretation of the facts of the Crimean question.

As summed up by The Legal Justifications of the Position of Russia on Crimea and Ukraine prepared by the Ministry of Foreign Affairs of Russia at the end of 2014, the official argument is framed as follows:

Such form of implementation of the right to self-determination was the only means to protect the vitally important interests of the Crimean people facing the outburst of nationalist radical elements in Ukraine which exert enormous influence on how decisions are adopted in the country which, in turn, leads to ignoring of the interests of Ukrainian regions and the Russian speaking population.[68]

According to statements of Kapustin made in 2009, the UN Charter prohibits states from resorting to the use of force to protect the population from grave human-rights violations in another state without its authorisation.[69] Statements to the same effect were made by many scholars in Russia including Chernichenko,[70] Tolstykh,[71] Kotlyar[72] and others. In October 2013, Professor Kapustin furthermore raised concerns regarding situations whereby certain states or organs, and not judicial bodies or special commissions, give legal qualification of grave human-rights violations for the purposes of application of the R2P, concluding that:

to say that commitment of such violations gives rise to the application of R2P measures is not grounded in international law, which does not contain a provision of this kind.[73]

Several months after the last statement, Kapustin began to use the claim of grave human rights violations to justify the Russian intervention in Crimea. According to his statement at the ASIL Meeting in April 2014, for example:

under international law the actions by international organizations in situations involving grave human rights violations do not exclude actions taken on these matters by other states, including neighbouring states.[74]

In employing the R2P arguments, or otherwise silently or expressly agreeing with the use of force by Russia without the prior authorisation (and even notification) of the UN Security Council, the Russian scholars neither seemed to be frustrated by the fact that they had to leave their prior first positions, nor did they expressly mention anymore that R2P was not, in fact, an established concept in international law. Furthermore, the issue of “grave violations of human rights” by the new government of Ukraine always appeared to be taken for granted, without any additional research on the topic being carried out.

The most recent statements by the Russian President that he prioritises “people’s lives” over “borders and state territories”[75] may serve as an indication that the extensive application of R2P by the Russian doctrine is likely to continue.

2.4. Use of force: adjustment of the Russian doctrinal scholars to the changing position of the Russian government

Russia’s official position on its actions in Crimea was first presented by its President[76] and Ministry of Foreign Affairs,[77] including at the UN Security Council,[78] as events in Crimea were evolving in early 2014. This position was later consolidated in a document (in Russian) produced by the Ministry of Foreign Affairs and titled The Legal Justifications of the Position of Russia on Crimea and Ukraine.[79]

The Black Sea Fleet Agreements were denounced[80] by Russia on 2 April 2014.[81] Russia does not appear to dispute the fact that these Agreements had been in force in February and March 2014 when the actual events pertaining to Russian troops leaving their military bases were taking place.

In the first several weeks of the Crimean crisis, given the limited information supplied by the highest Russian officials at that time, allegations of the use of force against Ukraine by Russian military forces (at that time, unidentified “polite men in green”) were pitted against claims by Russia that all actions taking place were being undertaken at the hands of separatists, raising questions regarding attribution. In his address to the Russian Parliament of 18 March 2014, the Russian President stated:

[…] what exactly are we violating? True, the President of the Russian Federation received permission from the Upper House of Parliament to use the armed forces in Ukraine. However, strictly speaking, nobody has acted on this permission yet. Russia’s armed forces never entered Crimea; they were there already in line with an international agreement. True, we did enhance our forces there; however – this is something I would like everyone to hear and know – we did not exceed the personnel limit of our armed forces in Crimea, which is set at 25,000, because there was no need to do so.[82]

Indeed, Russia had the right to deploy military personnel in Crimea under the 1997 Status and Conditions Agreement within the specified numbers, and that number was indeed not exceeded in February and March 2014. However, it was only part of the Russian obligations. Under the same agreement, and specifically Article 6(1) thereof, Russia was also obliged not to allow its troops to leave their military stations and not to use its military personnel to violate Ukrainian territorial sovereignty and political independence. Furthermore, Russia had an obligation to respect the political and territorial integrity of Ukraine under the UN Charter, as well as the 1975 Final Act of the Conference on Security and Co-operation in Europe; the Protocol to the Commonwealth of Independent States Pact, signed in Alma-Ata on 21 December 1991; and the 1994 Memorandum on Security Assurances, signed in Budapest between the Russian Federation, the United Kingdom and the United States, and entered into in connection with Ukraine’s accession to the 1968 Nuclear Non-Proliferation Treaty.

One of the first Russian doctrine statements on Crimea was made at that time by Kapustin, President of the Russian Association of International Law (“RAIL”), who, speaking at the American Society of International Law in April 2014, objected strongly to any contention that Russia had engaged in the use of force in Crimea.[83]

A few days after these rebuttals at the ILA, during a “Direct Line” with the Russian President on 17 April 2014, Russia’s official position regarding the involvement of its soldiers shifted:

Russia did not annex Crimea by force. Russia created conditions – with the help of special armed groups and the Armed Forces, I will say it straight – but only for the free expression of the will of the people living in Crimea and Sevastopol. […] when the world becomes unipolar, or when someone tries to make it so, then this one pole has the illusion that all issues can be settled through power. And only when there is a balance of power does the desire to negotiate appears. I hope that we will be moving along the path to strengthen international law.[84]

Since then, official statements by Russia’s Ministry of Foreign Affairs have further confirmed the participation of Russian troops in Crimean events.[85] Furthermore, as mentioned in the previous section, according to an interview with the Russian President in the documentary Crimea. The Road Home, the launch of a special operation to return Crimea to Russia had been ordered by him as early as on 22 February 2014.[86]

Yet in his article for the Heidelberg Journal of International Law in 2015 Kapustin completely ignored the issue of the use of force by Russia.

In an open letter on behalf of the RAIL to the members of the International Law Association, Kapustin chose to limit his arguments on the non-use of force to the issue of the Black Sea Fleet:

contrary to false information from the leaders of the USA and EU countries, Russia didn’t send its military fleet into Crimea for holding a referendum. The Russian Black Sea military fleet has been staying in Crimea long ago (long before a referendum) during many centuries! And this fact is well-known.[87]

Chernichenko simply continued to refer to the integration of Crimea into Russia as a “completely peaceful” process[88], and according to Tolstykh,

Russian presence […] was not designed to intervene in the process of formation of the will of Crimean population and therefore cannot be considered as violence (although, of course, this presence was an obstacle for jurisdiction of the Kiev authorities).[89]

Here, it would seem that the enormous amount of literature written by Soviet and Russian scholars on the prohibition of aggression and unauthorised use of force has been intended to address the behaviour of states other than Russia.

2.5. The admitted presence of Russian troops and Russian involvement vis-à-vis the free choice made by Crimea

According to The Legal Justifications of the Position of Russia on Crimea and Ukraine by the Ministry of Foreign Affairs of Russia,

the proclamation of independence of the Republic of Crimea and its incorporation into the Russian Federation is a lawful form of implementation of the right of the Crimean people to self-determination in a situation of a coup d’etat in Ukraine which was directed from the outside with the use of force.[90]

Even assuming, for the sake of argument, that the Crimean population qualified as a people under international law, Russia’s self-acknowledged commencement of a special operation on 22 February 2014[91], and its stationing of troops outside its military bases and in government buildings when the Crimean referendum was formulated, announced and held, raises a serious question under international law.

Russia had a fundamental duty to “refrain from the … support, direct or indirect, of … secessionist activities within other States”.[92] Even taken against the right to support a people’s full pursuit of their right to self-determination,[93] such a right does not release a State from its obligation to act in accordance with the UN Charter.[94]

The ICJ Advisory Opinion on Kosovo unequivocally precludes the legality of declarations of independence connected with “the unlawful use of force or other egregious violations of general international law in particular those of peremptory character (jus cogens)”.[95]

However, this is not even an important subject of discussion among Russian academics. Russian scholars prefer to focus their attention exclusively on the often-quoted passage of the opinion contained in paragraph 84, whereby “general international law contains no […] prohibition of the declarations of independence”. Beyond that, they generally tend to limit their observations on the matter to discussing the legality of self-determination under positive international law in abstracto,[96] including with the use of clearly out-of-date or inapplicable arguments.[97]

Furthermore, in the translated citation below, Professor Kotlyar from the Diplomatic Academy of the Russian Ministry of Foreign Affairs appears to see no problem with the Kremlin taking certain crucial decisions on secession, instead of Crimea (nor does he find the solution found by Russia to the issue of a “people” problematic):

There is a nuance – indeed international law only speaks of the right to self-determination of a “people”, not a population of a specific territory. An elegant solution in this regard was found by the lawyers and Administration of our President [sic], as three days before the referendum Crimea declared itself an independent State. And an independent State will always comprise a “people”, and not just a “population”.[98]

It is commonplace in the Russian discourse to start arguments on the legality of self-determination with the unquestionable desire of Crimeans to join Russia.[99] Yet it is hardly a verifiable premise: a claim of external self-determination was nowhere to be found on the Crimean Parliament’s agenda over the decade preceding its introduction into Parliament on 27 February 2014, that is, five days after the Russian President’s order to start a “special operation”.

In his article on the topic,[100] Professor Kapustin addresses the past developments in Crimea very briefly, and leaves an obvious gap in describing events between 1992 and 2014. However, issues concerning the use of the Russian language and the autonomy of the region, which caused notable turmoil in the 1990s, seemed to have settled down following the provision of a guaranteed number of seats for Crimea in the Ukrainian Parliament and the applicable Russian language policy in the region.[101] As such, these issues had not sparked any significant tension since around the year 2000.[102] In 2010, regional parliamentary elections saw the only pro-Russian party in the region secure a mere three out of 100 regional parliamentary seats.[103] For its part, also never publicly raised any claims regarding the “return” of Crimea before 2014.[104] Thus the claim regarding alleged linguistic persecution and underrepresentation in the Ukrainian Parliament after the “coup” starting 23 February 2014 which required “remedial secession”[105] of the region on 16 March 2014 (that is, already after it was vetoed) is completely unpersuasive.

Kapustin also fails to address any of the applicable legal standards to the conduct of a referendum – the article is completely silent on applicable state practice, the existence of such standards, and whether they were or should have been complied with.

According to publicly available sources, the situation on 27 February 2014, already raises questions concerning the independence of the Parliament. On that day, then-unidentified armed groups – arguably those that were later admitted by Russia to have been elements of the Russian Army – seized the governmental buildings in Crimea.[106] The number of Crimean Deputies present in the Parliament building on that day, including during the referendum resolution vote, remains unclear.[107] According to one of the eventual leaders of the self-declared Donetsk People’s Republic, Igor Strelkov, who was also present in Crimea at the end of February 2014, the military gunmen were “forcing deputies to go into the building and vote”.[108]

Furthermore, the date of the referendum announced and scheduled by the Parliament on that day later moved forward three times: it was initially scheduled for 25 May 2014, then moved to 30 March 2014, but on 6 March 2014, it was rescheduled for and held on 16 March 2014 – just 10 days after its date was finally determined. The questions forming the basis of the vote were also revised twice.[109] This hastiness alone raises serious questions concerning due process.[110] The population of Crimea had only ten days to consider its destiny, while being surrounded by armed forces; and, according to the final wording of the questions put to the referendum, was not even offered the option of maintaining the status quo within Ukraine. The unreasonableness of this timeline is one of the first factors playing against the Russian argument, especially when combined with statements describing the Crimean events as a “special operation”. A region with a population of two million people could not reasonably be expected to form an opinion and find a “consensual solution” for all Crimean ethnic groups on a matter of such public importance as secession from their home state in less than sixteen days, even in a situation where the freedom of expression was not impeded, which in Crimea it was.[111]

None of these considerations find proper reflection and analysis in positions on the legality of the Crimean referendum and its subsequent secession espoused by Russian legal scholars.

The inconsistent and often rudimentary level of Russian doctrinal interpretation does have its own grave consequences. First of all, it affects official Russian decision-making and its application of international law, at least by virtue of a lack of professional legal advice to the Russian government that might otherwise be provided by an independent and well-informed Russian academia.

Secondly, it results in a growing public perception of international law in Russia as either a meaningless “fig leaf” used exceptionally to cover State self-interest, or as “idle talk” between politicians. This badly simplified misperception affects all layers of Russian society, and adds to Russia’s intellectual isolation from the world, thus further entrenching the never-ending vicious circle of the Soviet legacy.

3. The Russian doctrinal response to Crimea in a broader context of post-Soviet international legal academia

The crucial observation one might make with respect to the positions espoused by Russian academics, is that they generally reflect – occasionally with some improvisation, but often word-for-word – the official Russian line expressed by the Russian President and Ministry of Foreign Affairs, including at the UN Security Council.

Whatever the positive developments in Russian academia since 1990 may have been, the case of Crimea has made it obvious that Russian international legal doctrine continues to speak with one voice, and that voice continues to purport to be that of the Russian state. The Crimean situation has revealed conclusively that the most important change from a “monolithic” Soviet doctrine to pluralism of opinions[112] has remained mostly a declaration, at least in the minds of the leading names in Russian international law.

In reflecting official positions, Russian academia ignores or denounces, often with extreme hostility, not only interpretations of international law by other states, but also interpretations offered by foreign academics, international organisations and even its own prior interpretations, including, as shown above, own positions earlier developed by the same doctrinal authors.

Some international scholars who study “Russian” approaches to international law or come across them as part of their research seem prepared to justify this striking unity of perspective among Russian academic international lawyers by reference to the historically authoritarian nature of the Russian state and the pressure exerted by the Russian government on NGOs and civil society in recent years.[113]

Yet the proximity of these scholars to government[114] has, since the 1990s, been mostly voluntary – such scholars have willingly sought to act as advocates of the government position in the two and a half decades since the end of the USSR, without, to the best of my knowledge, any pressure from the government itself. It also seems obvious that Russian scholars have always spoken proudly of their own “Russian approach to international law” to justify the singularity of their perspective on that law. It should also be borne in mind that the present-day autocracy characteristic of Russian universities and the lack of academic freedom among Russian international-law scholars in the 1990s and early 2000s have been mutually constitutive. It was in fact the scholars themselves and the academic system they inherited from the USSR that were responsible for most of the restrictions, self-limitations, and dehumanisation taking place in post-Soviet academia well before the conflict with Ukraine.

Eastern European mythology speaks of a very dark figure named Koschei the Deathless. Koschei was unable to die because he took his soul out of his body and hid it “inside a needle, in an egg, in a duck, in a hare, in an iron chest, buried under an oak tree, on a hidden island”. Russian international law doctrine may be regarded as one such “horcrux” wherein the soul of Russia’s totalitarian past has been in hiding for the past quarter of a century.

The collapse of the USSR had no immediate impact on the teaching of international law in Russia. When a new edition of the most authoritative Soviet international law textbooks co-authored by Tunkin was published in 1999, most of its chapters repeated the previous 1981 version of the same textbook word-for-word, with references to “bourgeois” science of international law in the 1981 edition simply replaced by global change to “Western” science of international law in the 1999 edition. The ideological split between the “communist” and the “capitalist” systems invented by the USSR (and, therefore, the hostility underlining the ideological division between the socialist camp and the rest of the world) thus remained untouched in the Russian international law mentality despite Russia’s declared transition to democracy and free market in the 1990s. In such circumstances, the requirement to cite the Russian doctrine in every scholarly work presented for defence in Russia and lack of English language knowledge among the Russian international legal scholarly community[115] has always added to the never-ending circle of reproducing the Soviet dogma in contemporary Russian public international law literature.

Another example of the continued totalitarian tradition in Russian public international law academia is backing of the traditional “Russian school of international law” by Soviet structures that survived the collapse of the totalitarian regime, such the Soviet Association of International Law (simply renamed, now RAIL, and a branch of the International Law Association).

In the situation with Crimea, representatives of Russian international law doctrine have defaulted to taking the extreme positivist and voluntarist approach to law that characterised the perspective of the Soviet Union as a totalitarian great power.[116] The undeniable “flashbacks” to Russia’s Soviet past as regards events in Ukraine are eliciting old “learned” reactions from members of institutions that continue to carry the Soviet legacy. Trapped in this approach, these scholars are able only to regard international law as the word spoken by their sovereign. Where a subject of international law chooses to violate that law, such lawyers are led down the path of illegality – proclaimed, however, to be the new “legality” – together with the violating state.

A word, however, should be spoken of the new generation of international lawyers in Russia.

In a heated debate on the pages of the Russian newspapers in the course of 2015, Elena Lukyanova, a Professor of constitutional law at the Higher School of Economics, clashed with one of the most active proponents of the legality of Crimean annexation, Valery Zorkin, the chairman of the Russian Constitutional Court. Although her main criticism was aimed at the Constitutional Court’s attitude during the Crimean crisis, Lukyanova started the debate by noting the existence of the ‘two worlds’ among Russian international and constitutional lawyers:

[Russia] counts numerous highly professional independent experts in the field of law. However, they are usually barred from decision-making within the government […] because, over twenty years, the state has selected the sort of legal doers it found convenient for itself. The rest, one way or another, were gradually removed beyond the bounds of the state’s legal activities. As a result, two legal communities have evolved; they speak completely different languages and use different legal constructs. One community comprises officials “in the field of law”, judges, parliament members, election commissioners, and law enforcement officers. The other community is made up of lawyers, human rights activists, and some of the independent scholars.[117]

In public international law, the independent thought that was forming in Russia in the course of the twenty-five years following the disintegration of the USSR has had to find its way through (or around) an extremely isolated and self-referential system of the post-Soviet international law tradition of teaching. In its attempt at self-preservation, this system reacts strongly to any critical or simply differing opinions[118] and openly disregards a systemic study of international jurisprudence and international legal scholarship in most of the Russian textbooks and monographs. The notorious lack of English language knowledge often compounds a lack of interest in filling law libraries with legal literature of the 20th century – a time when the Soviet Union was a closed territory.

Holders of dissenting opinions on any matter of importance in the post-Soviet academic international law school in Russia put themselves at risk of not being conferred their Russian degree and of ostracism within the system. Most Russian universities are apparently still quite hostile to foreign professors and disdainful of degrees obtained outside Russia, and this becomes a serious obstacle for the younger generation of Russian international law scholars whose chosen career is to teach in Russia and to improve the level of public international law at Russian universities.

In the “backstage” of Russian academic life a new trend has emerged in recent years, namely the issue of “funding” of scholars. Scholars who express an opinion critical of any actions on the part of the Russian government from the standpoint of international law are now likely to face pointed questions about the sources of funds supposedly paid to them to make such statements (it is generally presumed that the money “comes from the West”), and their works and commentaries are likely to be disparaged as “articles for pay”. Strikingly, a scholar’s previous reputation and integrity apparently has no bearing on these presumptions. The stance that academic affiliation with a state-funded university should preclude “affiliated” scholars from raising arguments critical of the government is also being voiced increasingly. Importantly, such voices are heard on a “horizontal” level, i.e. within the Russian academic and legal community itself. They represent an uninterrupted continuation of the post-Soviet “horizontal” tradition in academia (at least in the area of public international law in Russia) of ad hominem attacks on those who express a dissenting or simply a differing opinion. The very presence of such attacks, and their recent intensification, indicates however that independently-minded scholars and practitioners of international law in Russia are very much in the picture, and suggests that their voices may be starting to be heard.

Conclusions

In the case of Crimea, representatives of Russian doctrine may have fallen victim to the State propaganda machine precisely because they never strayed beyond their dogmatic understanding of law and the role of the international lawyer as anything other than advocate of the State. This foments reductivist inter-state thinking, whereby all those not supportive of the State’s position are viewed as agents of another state.

Building upon a legacy of strong Soviet rhetoric, guardians of this closed system continue to view it as the leading “science” of international law in the world – a world that unfairly fails to likewise accord it such status. Yet, acknowledgement of the strength of the case for regionalism generally is far from evincing strong international legal argumentation. A fair question can be (and indeed has been) whether international scholars adhering to “Western” paradigms may be more inclined to blame Russia for violations of international law than they would be in case of such violations committed by a “Western” state.[119] Indeed, there appears to be a certain distrust of Russian positions voiced. However, is this distrust by the “West” reflecting Russia’s position as a country on the world stage – as some post-Soviet scholars are trying to claim[120], or is it from a professional legal community due to logical, communicational[121] and even linguistic fallacies in the rhetoric of Russian international legal doctrine (and of the Russian government)? In other words, can we assess if the Russian doctrinal scholars play the instrument of international law, or if they simply smash on its keys pretending that it is some form of avant-garde music?

As the voice of the international legal profession worldwide has grown to become incomparably polyphonic over the past century, a fundamental difference in understanding the nature and function of the profession may be at the very root of the inability of the two approaches – indeed, one might go so far as to say two professions – to accept each other.

Abstract: This article is intended to give a reader a broader view of the post-Crimean academic discussion within Russia. The justifications offered by Russia for its actions in Crimea in 2014 were met with scepticism by the international community and international lawyers across various jurisdictions. Among Russian international legal scholars there were almost no critical voices willing to assess Crimea’s annexation as at least questionable under international law. Rather, these scholars, in their overwhelming majority, spoke or wrote on the matter in feverish defence of Russia’s actions. Some international scholars who study ‘Russian’ approaches to international law or come across them as part of their research seem prepared to justify the striking unity of perspective among Russian academic international lawyers by reference to the historically authoritarian nature of the Russian state. This article counters arguments of such would-be deference, suggesting that Russian academia be looked at by reference to the emerging standard of the international legal profession.

Keywords: Russia, Ukraine, Crimea, annexation, reunification, Russia, USSR, use of force, intervention, self-determination, territorial integrity, sovereignty, public international law, Russian approaches to international law, legal profession.

[*] The presented text was created for the conference “The Case of Crimea in the Light of International Law: Its Nature and Implications”, which was organized by Institute of Law Studies of the Polish Academy of Sciences and the Centre for Polish-Russian Dialogue in 2015 in Warsaw. It was also published in: 5(3) Russian Law Journal 86 (2017).

[**] Maria Issaeva, Managing Partner at Threefold Legal Advisors LLC, a law firm based in Moscow which focuses on issues of public international law and international human rights litigation. The views expressed by the author in this article are her own, and do not reflect the opinion of Threefold Legal Advisors LLC or its clients.

[1] See e.g. Territorial Integrity of Ukraine, UN General Assembly Resolution 68/262, 27 March 2014; A. Moiseienko, Guest Post: What do Russian Lawyers Say About Crimea? (24 September 2014), http://opiniojuris.org/2014/09/24/guest-post-russian-lawyers-say-crimea; Is International Law Effective? The Case of Russia and Ukraine, 108 American Society of International Law: Proceedings of the Annual Meeting (2014) (also available at https://www.youtube.com/watch?v=-x7EgVyv5Xk). All hyperlinks in this article last accessed on 20.06.2017.

[2] L. Mälksoo, Russian Approaches to International Law, Oxford University Press, Oxford: 2015, p. 191; Moiseienko, supra note 1.

[3] The particular statement in the beginning of the article belongs to Evgeny Voronin, a former Russian diplomat, and currently a professor of international law at Moscow State University of International Relations (MGIMO).

[4] See А. Задорожний, Российская доктрина международного права после аннексии Крыма [A. Zadorozhniy, The Russian International Legal Doctrine after the Annexation of Crimea], K.I.S., Kyiv: 2015.

[5] E.g. В. Зорькин, Право – и только право. О вопиющих нарушениях, которые упорно не замечают [V. Zorkin, Law – and Only Law. On Egregious Violations That Go Unnoticed], Rossiyskaya Gazeta, 23 March 2015, http://www.rg.ru/2015/03/23/zorkin-site.html; cf. Vladimir Putin answered journalists’ questions on the situation in Ukraine, 4 March 2014, http://en.kremlin.ru/events/president/news/20366; Г. Вельяминов, Воссоединение Крыма с Россией: Правовой ракурс [G. Velyaminov, Reunification of Crimea with Russia: a Legal Perspective], 24 April 2014, http://www.igpran.ru/public/articles/Rossiya-Krym.pdf.

[6] E.g. A. Kapustin, in: Is International Law Effective?, supra note 1; Г. Вельяминов, Круглый стол на тему: «Международно-правовые аспекты присоединения Крыма к России» [G. Velyaminov, Round Table: International Legal Aspects of Integration of Crimea in Russia], Diplomatic Academy of the Foreign Ministry of the Russian Federation, Moscow, 10 April 2014, https://www.youtube.com/watch?v=4k620BZKyto.

[7] Ibidem. See also V. Tolstykh, Three Ideas of Self-Determination in International Law and the Reunification of Crimea with Russia, 75 Heidelberg J. Int’l L. 119 (2015); A. Salenko, Legal Aspects of the Dissolution of the Soviet Union in 1991, 75 Heidelberg J. Int’l L. 141 (2015).

[8] E.g. В. Толстых, Воссоединение Крыма с Россией: правовые квалификации [V. Tolstykh, Reunification of Crimea with Russia: Legal Qualification], 5(72) Eurasian Law Journal (2014), http://www.eurasialaw.ru/index.php?option=com_content&view=article&id=6186:2014-06-25-08-34-35; Letter from Anatoly Kapustin, President of the Russian Association of International Law [RAIL], to Executive Council, International Law Association [ILA] (5 June 2014), http://www.ilarb.ru/html/news/2014/5062014.pdf; O. Khlestov, V. Kolyar, G. Velyaminov & S. Chernichenko, Round Table on Crimea, supra note 6; and many others.

[9] Ibidem. See also V. Tolstykh, Reunification of Crimea with Russia: A Russian Perspective, 13 Ch. J. Int’l L. 879 (2014).

[10] Kotlyar, Round Table on Crimea, supra note 6.

[11] Ibidem.

[12] See e.g. Salenko, supra note 7.

[13] Kapustin, supra note 6, after defining the events in Kyiv as “an armed [seizure] of power” and a “coup”, added “or the so-called Maidan revolution”.

[14] See e.g. И. Фархутдинов, Евразийская интеграция и испытание украинской государственности в системе международного права [I. Farkhutdinov, Eurasian Integration and a Test of Ukrainian Statehood in the System of International Law], 12(79) Eurasian Law Journal (2014).

[15] E.g. А. Ибрагимов, Воссоединение Крыма и Севастополя с Российской Федерацией в призме

международного права и мировой политики [A. Ibrahimov, Reunification of Crimea and Sebastopol with

Russian Federation Through the Prism of International Law and World Politics], 4 Yuridicheskiy Vestnik

(Dagestan State University) (2014); Khlestov, Round Table on Crimea, supra note 6.

[16] E.g. ibidem.

[17] E.g. Zorkin, supra note 5.

[18] E.g. Профессор С.В. Черниченко о перспективах развития ситуации на Украине [Professor S.V. Chernichenko on the Perspectives of Development of the Situation in Ukraine], 26 June 2014, https://www.youtube.com/watch?v=SD2OHQRWiBg; Zorkin, supra note 5.

[19] Tolstykh, supra note 8; Kapustin, RAIL Letter to ILA, supra note 8; Khlestov, Round Table on Crimea, supra note 6; С. Черниченко, Лекция: Нерешенные проблемы международного права [S. Chernichenko, Lecture: Unresolved Problems of International Law], November 2014, https://www.youtube.com/watch?v=T7ohudXoXU8.

[20] E.g. Tolstykh, supra note 7. The draft on the cancellation of the Ukrainian law on the use of native languages in various regions was adopted by the Ukrainian Parliament on 23 February 2014, but the acting President of Ukraine vetoed it on 3 March 2014. The law has not been adopted, and as of February 2015 was subject to examination by the Constitutional Court of Ukraine. The argument regarding the number of seats in Parliament is refuted in the Russian Doctrine after Crimea by Zadorozhny, supra note 4, p. 64.

[21]  Vladimir Putin submitted appeal to the Federation Council, 1 March 2014, http://en.kremlin.ru/events/president/news/20353.

[22] E.g. Tolstykh, supra note 8; A. Kapustin, Crimea’s Self-Determination in the Light of Contemporary International Law, 75 Heidelberg J. Int’l L. 101 (2015); idem, RAIL Letter to ILA, supra note 8; Khlestov, Kolyar, Velyaminov & Chernichenko, Round Table on Crimea, supra note 6; and many others.

[23] Ibidem.

[24] See section 2.4.: Use of force: adjustment of the Russian doctrinal scholars to the changing position of the Russian government in the course of 2014–2015 below.

[25] Chernichenko, supra note 18.

[26] Black’s Law Dictionary, Lawbook Exchange, Union, N.J.: 1995, p. 71.

[27] One of the very first Soviet claims introduced by the Bolsheviks after the 1917 Revolution in the Decree of Peace was “peace without annexations and contributions”. This Soviet claim was rejected in the 1918 Treaty of Brest-Litovsk. Possibly, the words “annexation” and “contributions” (indemnities) fell victim to demonisation, along with the image of the “imperialistic” capitalist countries, following this important episode of early Soviet history.

[28] Zadorozhny, supra note 4; Th.D. Grant, Aggression Against Ukraine: Territory, Responsibility and International Law, Palgrave Macmillan, New York: 2015; A. Peters, Crimea: Does ‘The West’ Now Pay the Price for Kosovo? 22 April 2014, http://www.ejiltalk.org/crimea-does-the-west-now-pay-the-price-for-kosovo/.

[29] See also Vladimir Putin on the situation in Ukraine, supra note 5.

[30] W. Kulski, Soviet Comments on International Law, 46 Am. J. of Int’l L. 131 (1952), p. 131.

[31] Concept of the Foreign Policy of the Russian Federation, approved on February 12, 2013 (June 20, 2017), http://www.mId.ru/en/foreign_policy/official_documents/-/asset_publisher/CptICkB6BZ29/content/id/122186.

[32] J. Ku, Is the Crimea Crisis a Factual or Legal Disagreement, March 14, 2014 (June 20, 2017), http://opiniojuris.org/2014/03/14/fair-balanced-russias-legal-position-crimea/.

[33] Cf. statements by the USSR: “The provocative plan of the reactionary and fascist-like elements has been wrecked […] the provocation was prepared in advance, organized and directed from Western sectors of Berlin. Simultaneous actions in the majority of the big cities of the GDR, the same demands of rebels everywhere, as well as the same anti-state and anti-Soviet slogans, serve as proof for this conclusion” (the 1956 uprising in Eastern Germany, the English version quoted from: http://digitalarchive.wilsoncenter.org/document/110024.pdf?v=44e8834f7ae7294020d5e423a1c013a1); “[…] the forces of black reaction and counterrevolution” (Hungarian revolution in October-November 1956, the English version quoted from: http://legacy.fordham.edu/halsall/mod/1956hungary.html); or “a threat emanating from the counter-revolutionary forces which have entered into collusion with foreign forces hostile to socialism […] safeguarding peace in Europe against the forces of militarism, aggression, and revanche, which have more than once plunged the peoples of Europe into war.” (USSR statement during the Czechoslovakia crisis of 1968, the English version quoted from http://web.stanford.edu/group/tomzgroup/pmwiki/uploads/0346-1968-09-KS-a-EYJ.pdf).

[34] M. Geller, A. Nekrich, Utopia in Power: The History of the Soviet Union from 1917 to the Present, Hutchinson, London: 1986, pp. 340, 344.

[35] Ibidem, p. 344.

[36] RAIL letter to ILA, supra note 8.

[37] See section 2.4.: Use of force: adjustment of the Russian doctrinal scholars to the changing position of the Russian government in the course of 2014–2015 below.

[38] Ibidem.

[39] Statement by Mr. Churkin, UNSC 7125th meeting, 3 March 2014, http://www.securitycouncilreport.org/atf/cf/{65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9}/s_pv_7125.pdf; Vladimir Putin on the situation in Ukraine, supra note 5; cf. Kotlyar, Round Table on Crimea, supra note 6.

[40] See e.g. Kapustin, supra note 22.

[41] See section 3.: The admitted presence of Russian troops and Russian involvement vis-à-vis the free choice made by Crimea below.

[42] Ibidem.

[43] Vladimir Putin in Crimea. The Road Home, a documentary, released on 15 March 2015, Rossiya-1 TV Channel, https://www.youtube.com/watch?v=t42-71RpRgI.

[44] I note lack of any discussion on this matter among adherents of the Russian doctrine.

[45] See section 2.1.: Issue of Ukraine’s statehood below. See also Velyaminov, supra note 5.

[46] See e.g. Chernichenko, supra note 19; Statement by the Russian Ministry of Foreign Affairs regarding accusations of Russia’s violation of its obligations under the Budapest Memorandum of 5 December 1994, 1 April 2014, http://www.mId.ru/en/press_service/spokesman/official_statement/-/asset_publisher/t2GCdmD8RNIr/content/id/68078.

[47] See e.g. Salenko, supra note 7.

[48] Vladimir Putin on the situation in Ukraine, supra note 5.

[49] R. Müllerson, The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia, 42 Int’l & Comp. Law Q. 473 (1993), pp. 473–493.

[50] See e.g. J.R. Crawford, The Creation of States in International Law, 2nd ed., Oxford University Press, Oxford: 2006, p. 43.

[51] ‘The Tunkin of the Post-Soviet Era’, according to Mälksoo, supra note 2.

[52] Chernichenko, supra note 6.

[53] Tolstykh, supra note 7.

[54] Idem, supra note 8.

[55] Idem, Курс международного права [International Law Course], Wolters Kluwer Russia, Moscow: 2009, p. 291; Международное право: учебник, под ред. С.А. Егорова, Дипломатическая академия МИД России [International Law, 5th ed., textbook of the Diplomatic Academy of Russia, S. Egorov (ed.)], Statut, Moscow: 2014 (chapters VI and VII written by Chernichenko), p. 193.

[56] Tolstykh, supra note 55, p. 374.

[57] Ibidem, pp. 362–363; Chernichenko, supra note 19, p. 205.

[58] Tolstykh, supra note 55, p. 375.

[59] Ibidem, p. 382.

[60] Chernichenko, supra note 19, p. 205.

[61] Ibidem.

[62] Ibidem, p. 209.

[63] This position was literally in every major textbook in Russia, and is a generally prevailing view. See e.g. Th. Christakis, Self-Determination, Territorial Integrity and Fait Accompli in the Case of Crimea, 75 Heidelberg J. Int’l L. 101 (2015); L. Mälksoo, Crimea and (the Lack of) Continuity in Russian Approaches to International Law, http://www.ejiltalk.org/crimea-and-the-lack-of-continuity-in-russian-approaches-to-international-law/.

[64] Постановление Конституционного Суда РСФСР от 13.03.1992 N 3-I «По делу о проверке конституционности Декларации о государственном суверенитете Татарской ССР от 30 августа 1990 года, Закона Татарской ССР от 18 апреля 1991 года «Об изменениях и дополнениях Конституции (Основного Закона) Татарской ССР», Закона Татарской ССР от 29 ноября 1991 года «О референдуме Татарской ССР», постановления Верховного Совета Республики Татарстан от 21 февраля 1992 года «О проведении референдума Республики Татарстан по вопросу о государственном статусе Республики Татарстан» [Resolution of the Constitutional Court of Russia No. 3-P], 13 March 1992; Постановление Конституционного Суда Российской Федерации от 31.07.1995 N 10-П «По делу о проверке конституционности Указа Президента Российской Федерации от 30 ноября 1994 года N 2137 “О мероприятиях по восстановлению конституционной законности и правопорядка на территории Чеченской Республики”, Указа Президента Российской Федерации от 9 декабря 1994 года N 2166 “О мерах по пресечению деятельности незаконных вооруженных формирований на территории Чеченской Республики и в зон осетино-ингушского конфликта, Постановления Правительства Российской Федерации от 9 декабря 1994 года N 1360 “Об обеспечении государственной безопасности и территориальной целостности Российской Федерации, законности, прав и свобод граждан, разоружения незаконных вооруженных формирований на территории Чеченской Республики и прилегающих к ней регионов Северного Кавказа”, Указа Президента Российской Федерации от 2 ноября 1993 года N 1833 “Об Основных положениях военной доктрины Российской Федерации” [Resolution of the Constitutional Court of Russia No. 10-P], 31 July 1995, http://www.szrf.ru/doc.phtml?nb=edition00&issid=1995033000&docid=181.

[65] Public sitting held on Tuesday 8 December 2009, at 10 a.m., at the Peace Palace, President Owada, presiding, on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for advisory opinion submitted by the General Assembly of the United Nations, 2009), http://www.icj-cij.org/files/case-related/141/141-20091208-ORA-01-00-BI.pdf.

[66] See e.g. Ch. Borgen, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, 91 Int’l L. Stud. Ser. US Naval War Col. 216 (2015); Mälksoo, supra note 63.

[67] “[T]he words ‘the will of the people’ do not necessarily refer to the population of Kosovo only and could very well encompass the whole population of the country concerned, or else reflect the general notion of ‘popular will’ as a principle of democracy”, Statement of the Russian Federation during Kosovo Oral Proceedings, supra note 65.

[68] Правовые обоснования позиции России по Крыму и Украине [Legal Justifications of the Position of Russia on Crimea and Ukraine], Ministry of Foreign Affairs of Russia, 27 October 2014, http://www.rusembdprk.ru/images/documents/Crimea_-_the_legal_basis.pdf.

[69] Круглый стол: Проблемы гуманитарной интервенции и защиты граждан за рубежом [Round Table: The Problems of a Humanitarian Intervention and Protection of Compatriots], 18 September 2009, http://viperson.ru/articles/problemy-gumanitarnoy-interventsii-i-zaschity-grazhdan-za-rubezhom.

[70] Круглый стол: «Ответственность за защиту (новые тенденции в международном праве и международных отношениях)» [Round Table: Responsibility to Protect (New Tendencies in International Law and International Relations)], 22 March 2012, https://www.youtube.com/watch?v=VEudC0Ifpt8.

[71] Tolstykh, supra note 55, p. 626.

[72] В.С. Котляр, Международное право и современные стратегические концепции США и НАТО [V. S. otlyar, International Law and Modern Strategic Concepts of the USA and NATO], Tsentr Innovatsionnyh Tehnologiy, 2008.

[73] Конференция на тему: «Суверенитет государств и концепция «ответственности по защите»: эволюция международной ситуации и интересы России [Conference: State Sovereignty and Responsibility to Protect: Evolution of the International Situation and Russian Interests], 31 October 2013, https://www.youtube.com/watch?v=tFegybXT2zA.

[74] Kapustin, supra note 6.

[75] N. Blome, K. Diekmann, Putin – the Interview (Part 1), 5 January 2016, http://www.bild.de/politik/ausland/wladimir-putin/russian-president-vladimir-putin-the-interview-44092656.bild.html.

[76]  Address by President of the Russian Federation, 18 March 2014, http://en.kremlin.ru/events/president/news/20603.

[77] Speech by the Russian Foreign Minister, Sergey Lavrov, during the high-level segment of the 25th session of the United Nations Human Rights Council, Geneva, March 3, 2014, http://www.mId.ru/ru/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/72642?p_p_id=101_INSTANCE_cKNonkJE02Bw&_101_INSTANCE_cKNonkJE02Bw_languageId=en_GB.

[78] V. Churkin, Statements at the UNSC, 2014, http://www.securitycouncilreport.org/un-documents/ukraine/.

[79] Legal Justifications of the Position of Russia on Crimea and Ukraine, supra note 68.

[80] This was done with reference to Arts. 61 (Supervening impossibility of performance) and 62 (Fundamental change of circumstances) of the Vienna Convention on the Law of Treaties (‘VCLT’). However, this denunciation clearly falls outside the ambit of the same VCLT provisions, with their explicit prohibition invoking either the impossibility of performance or a rebus sic stantibus clause if either circumstance has occurred as the result of a breach of international law by the invoking party.

[81] Федеральный закон от 2 апреля 2014 г. № 38-ФЗ “О прекращении действия соглашений, касающихся пребывания Черноморского флота Российской Федерации на территории Украины” [Federal Law of the Russian Federation № 38-FZ “On Termination of the Agreements Concerning the Stay of the Black Sea Fleet in the Territory of Russia”], 2 April 2014; Press Release: Note by the Russian Ministry of Foreign Affairs on the Black Sea Fleet, 3 April 2014, http://www.mId.ru/web/guest/maps/ua/-/asset_publisher/ktn0ZLTvbbS3/content/id/67406?p_p_id=101_INSTANCE_ktn0ZLTvbbS3&_101_INSTANCE_ktn0ZLTvbbS3_languageId=en_GB.

[82]  Address by President of the Russian Federation on March 18, 2014, http://en.kremlin.ru/events/president/news/20603.

[83] Kapustin, supra note 6.

[84] Direct Line with Vladimir Putin, 17 April 2014, http://en.kremlin.ru/events/president/news/20796.

[85] See e.g. Legal Justifications of the Position of Russia on Crimea and Ukraine, supra note 68.

[86] Crimea. The Road Home, supra note 43.

[87] Kapustin, RAIL Letter to ILA, supra note 8.

[88] Chernichenko, supra note 19.

[89] Tolstykh, supra note 7.

[90] Legal Justifications of the Position of Russia on Crimea and Ukraine, supra note 68.

[91] Crimea. The Road Home, supra note 43.

[92] Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, UN General Assembly Resolution 2131 (XX), 21 December 1965; see also Security Council 7176th Meeting (15 May 2014), http://www.un.org/press/en/2014/sc11398.doc.htm.

[93] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ (2004), p. 136; Barcelona Traction, Light and Power Co, Ltd (Belgium v. Spain), Second Phase, ICJ (1970), p. 3.

[94] Declaration on the Inadmissibility of Intervention, supra note 92; Definition of Aggression, UN General Assembly Resolution 3314 (XXIX), 14 December 1974.

[95] Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory opinion of 22 July 2010, ICJ Reports 2010, para. 165.

[96] Kapustin, supra note 22.

[97] For example, the reunification of Northern Schleswig with Denmark in 1921 through plebiscite has been referred to consistently. Nevertheless, that situation of almost one hundred years ago involved extensive negotiations and at least a two-year preparation – a backdrop dramatically different from the Crimean referendum, which was announced and held within less than three weeks. History knows other examples of referenda which were used as a pretext for expansion of a third state’s territory – but those are not part of the analysis of prior state practice by Russian scholars. Cf. a comprehensive analysis of the topic by Anne Peters in Das Gebietsreferendum im Völkerrecht. Seine Bedeutung im Licht der Staatenpraxis nach 1989, Nomos Verlag, Baden-Baden 1995; see also an Eur. J. Int’l L.: Talk! Commentary by Anne Peters on the referendum in Crimea at http://www.ejiltalk.org/sense-and-nonsense-of-territorial-referendums-in-ukraine-and-why-the-16-march-referendum-in-crimea-does-not-justify-crimeas-alteration-of-territorial-status-under-international-law.

[98] Kotlyar, Round Table on Crimea, supra note 6.

[99] Probably the most striking verbalised quote in this regard belongs to Tolstykh: “the residents of Crimea were initially predisposed in favour of political union with Russia”, idem, supra note 9.

[100] Kapustin, supra note 22.

[101] See Grant, supra note 28. For the statistical data on education in Russian, see L. Mazuka, Language Policy and Crimea. Speculation and Reality, http://old.ua-today.com/modules/myarticles/print_storyid_31245.html.

[102] The issue that stayed unresolved and in relation to which the debate was ongoing was the autonomy and language rights of the Crimean Tatars. However, their aspirations and claims voiced to the central Ukrainian government never took the direction of any pro-Russian claims. Indeed, rather to the contrary.

[103] For discussion of the 2010 results of the Crimean parliamentary elections, see e.g. Д. Денисов, Результаты региональных выборов на Украине: укрепление вертикали власти или тенденции федерализации страны [D. Denisov, Results of the Regional Elections in Ukraine: Strengthening of the Power Vertical or Tendency of the Country’s Federalisation], http://www.materik.ru/problem/detail.php?ID=11544.

[104] Moreover, in 1997 Russia unreservedly signed and ratified the Treaty of Friendship, Cooperation, and Partnership with Ukraine, in which the two parties agreed to “respect each other’s territorial integrity, and confirm the inviolability of the borders existing between them”, Treaty between the Russian Federation and Ukraine on Friendship, Cooperation and Partnership, 31 May 1997, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N97/155/47/PDF/N9715547.pdf?OpenElement.

[105] Kapustin, supra note 22; Tolstykh, supra note 7.

[106] See e.g. Number of Crimean deputies present at referendum resolution vote unclear, 27 February 2014, http://en.interfax.com.ua/news/general/193292.html.

[107] Ibidem.

[108] И. Стрелков vs Н. Стариков «Центрсилы / Силацентра» [Igor Strelkov vs Nikolay Starikov, Center of Power / Power of Center], Neyromir TV, 22 January 2015, https://www.youtube.com/watch?v=G04tXnvKx8Y.

[109] The wording of the question proposed for the referendum on 27 February 2014 was as follows: “The Autonomous Republic of Crimea possesses statehood and is part of Ukraine on the basis of treaties and agreements (‘in favour’ or ‘against’)”. The wording was modified on 6 March 2014 to include the two following questions “Choice 1: Do you support the reunification of Crimea with Russia with all the rights of a federal subject of the Russian Federation? Choice 2: Do you support the restoration of the Constitution of the Republic of Crimea in 1992 and the status of the Crimea as part of Ukraine?”.

[110] Peters, Eur. J. Int’l L.: Talk! Commentary, supra note 97.

[111] Venice Commission, Opinion no. 762/2014 on Whether the decision taken by the Supreme Council of the Autonomous Republic of Crimea in Ukraine to organise a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea’s 1992 Constitution is compatible with constitutional principles, 21 March 2014, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)002-e.

[112] L. Mälksoo, International Law in Russian Textbooks: What’s in the Doctrinal Pluralism?, 1 Goettingen J. Int’l L. 279 (2009).

[113] See e.g. Mälksoo, supra note 2; T. Langstrom, Transformation in Russia and International Law, Martinus Nijhoff Publishers, Leiden: 2003; Borgen, supra note 66.

[114] Mälksoo, supra note 2, p. 81.

[115] Ibidem, p. 97.

[116] A. Freeman, Some Aspects of Soviet Influence on International Law, 62 Am. J. of Int’l L. 710 (1968). Cf. the perception of customary international law in the Soviet theory of international law, see e.g. C.A. Bradley, M. Gulati, Withdrawing from International Custom, 120 Yale L.J. 202 (2010).

[117] E. Lukyanova, On the Rule of Law in the Context of Russian Foreign Policy, 3 Russ. Law J. 10 (2015).

[118] See e.g. Международная и национальная уголовная юстиция: совместимость и взаимодействие [International and National Criminal Justice: Compatibility and Interaction], 3 August 2015, https://www.youtube.com/watch?v=6fq6018wLoI.

[119] See e.g. Forum: The Situation in Ukraine, 15 September 2015, Annual Conference of the European Society of International Law, http://www.jus.uio.no/pluricourts/english/news-and-events/events/2015/esil-2015-en/video-and-streaming/the-situation-in-ukraine.html.

[120] See e.g. А.В. Томсинов, «Крымское право» или Юридические основания для воссоединения Крыма с Россией [A.V. Tomsinov, ‘Crimean Law’ or a Legal Basis for the Reunification of the Crimea and Russia], 2(11) Moscow State University Herald 3 (2014), Series 11, Law; R. Müllerson, Ukraine: Victim of Geopolitics, 13 Ch. J. Int’l L. (2014); Zorkin, supra note 5.

[121] See e.g. A. Gabuev, Russia’s Performance at the Munich Security Conference: A Symptom or a Cause?, 10 February 2015, http://carnegie.ru/2015/02/10/russia-s-performance-at-munich-security-conference-symptom-or-cause.

The Russian Practice of the Forcible Protection of Nationals Abroad: Legal Implications
Mindia Vashakmadze[*]

doi: 10.7366/9014Crimea9

Introduction

Protection of nationals abroad was one of the arguments presented by the Russian Federation at the United Nations Security Council in March 2014, in order to justify its military intervention in Crimea, Ukraine.[1] Members of the Security Council did not address this argument in any depth[2], and a great number of states beyond the Council did not oppose this specific justification for the use of force. Furthermore, some commentators argue that Western states did not, in principle, oppose the application of the ‘protection of nationals’ doctrine in the 2008 Russian-Georgian conflict, in which Russia justified its use of force in terms of the need for its nationals in the breakaway Georgian region of South Ossetia to be protected.[3] Indeed, only a few States expressed their opposition in explicit terms. Can any legal consequences be derived from this practice? Does it in any way affect the scope of the prohibition on the use of force? To answer this question, this paper will examine the practice of the Russian Federation with regard to forcible protection of nationals abroad, which has its origins in the 1990s. The Russian Federation referred to the notion of protecting nationals (or “compatriots”) in different situations in the countries of the former Soviet Union. As early as in 1993, President Yeltsin relied on similar grounds to justify a cessation of the withdrawal of Russian (former Soviet) forces from the territory of Estonia and Latvia. Protection of nationals has equally been invoked with respect to Georgia, Moldova and Ukraine in subsequent years.

This paper proceeds as follows: in the following section, it briefly discusses the current status in international law of the doctrine of the forcible protection of nationals abroad (1). It then sketches the evolution of Russian approaches to the protection of nationals since 1992, as reflected in various policy documents and the national legislation of the Russian Federation (2). In the next section, the paper examines how the doctrine was applied in practice, and in what manner states reacted (3). Finally, the paper offers some tentative observations on possible implications of the Russian practice for the law on the use of force (4).

As the practice is assessed, particular attention will be paid to the actual invocation of the doctrine in concrete cases, as well as to the official policy statements issued by the authorities that reflect the evolving Russian approaches to the protection of nationals abroad through the use of military force.

1. What is the status in international law of the protection of nationals abroad?

Forcible protection of nationals abroad remains contested in international law.[4] In particular, it remains controversial whether the use of force in the protection of nationals can be justified as a case of self-defence under Article 51 of the UN Charter, or whether it constitutes a stand-alone right recognised as an exception to the legal prohibition on the use of force enshrined in Article 2 (4) of the Charter.

Views in scholarship as to whether attacks on nationals of a state may under certain circumstances constitute an armed attack on that state itself are divided. Most commentators argue that such an attack would not be an armed attack within the meaning of Article 51 of the UN Charter. They argue that the existence of a state is not threatened if its nationals are attacked on foreign territory. According to this view, the extending of the notion of armed attack to include attacks against the nationals of a state would lead to an overly extensive interpretation of the right of self-defence.[5] A Report by the International Law Association (2014) on Aggression and the Use of Force equally emphasised disagreements on this subject; however, it does not explicitly state that an attack on nationals can under no circumstances be regarded as an armed attack against the respective state itself. According to the Report, the view that armed attack includes attacks against the nationals of a state “is stronger if it is clear that the nationals have been attacked directly as a result of their nationality, and are seen by their attackers as individual manifestations of their state”.[6]

Some commentators claim that a limited right to rescue nationals abroad is established in international law. For example, Randelzhofer and Dörr share a similar view in the 2012 UN Charter Commentary.[7] According to this view, rescuing nationals has to be considered lawful if it meets the following criterion: the lives of nationals are in danger, the territorial state is unable or unwilling to provide protection, the intervening state does not pursue a goal other than rescuing nationals and the measures taken are proportional to the aim of the military operation.[8] This view is based on an assumption that the forcible protection of nationals as a limited right does not violate the territorial integrity and political independence of a state.[9]

Most scholars, however, emphasise the indeterminacy of the law. In his 2002 study on the recourse to force, Thomas Franck argued that the “instances of UN-based” state practice may be thought to be random, leaving the law indeterminate. However, the practice may also be read to yield a narrow, or a broad, clarification of applicable law.[10] More-recent studies equally indicate that the legal situation remains rather unsettled.[11]

The efforts at codification of the rules on diplomatic protection demonstrated that the rule on protecting nationals through military means remains contested. The respective draft Article 2[12] was not adopted by the ILC.[13] States debating this issue in the UN General Assembly’s Sixth Committee rejected the adoption of draft Article 2 for various reasons.[14] The legal situation does not seem to have changed significantly since 2000. Forteau, in his contribution to the Oxford Handbook of the Use of Force in International Law published in 2015, concludes that the international community remains divided into two groups: some Western states still claim that forcible protection of nationals is permissible while another larger group of states either rejects this, or does not explicitly support such a claim.[15]

Arguably, such an uncertain legal situation provides much freedom for states to interpret and apply existing rules. For this reason, ILC Rapporteur on Diplomatic Protection John Dugard emphasised that, from a policy perspective, it is advisable to set “severe limits” on the right of forcible protection of nationals, rather than to ignore its existence; the lack of such limits would facilitate more abuse by States, so the argument goes.[16] States may indeed invoke a broad right of intervention in line with their particular political interest. While doing so, they may attempt to shape the law, or the practice of its interpretation, significantly.[17]

Under certain circumstances, inaction or the absence of protest on behalf of the particularly concerned states may indicate acceptance as law.[18] However, such cases of inaction must be reviewed carefully in the light of all the relevant circumstances, if their legal value is to be clarified.[19]

2. The evolving Russian approaches to protecting nationals abroad

2.1. Forcible protection of nationals in the so-called “near–abroad” on the foreign policy agenda of the Russian Federation

Russia’s shift towards a more assertive foreign policy with respect to the countries of the former Soviet Union occurred as early as in 1992, under President Yeltsin. His Foreign Minister Andrei Kosyrev stated in 1992 that the protection of Russian minorities in the so-called “near-abroad” was Russia’s duty, and a range of measures had to be taken to provide such protection.[20] In subsequent years, he emphasised repeatedly the necessity for nationals to be protected, not ruling out the use of force for that purpose.[21] An immediate reaction from the former Soviet Republics followed. For example, the Estonian Foreign Ministry issued a statement according to which this constituted threatening.[22] Lithuania equally emphasised that Russia’s statement was “incompatible with norms of international law”.[23] There were also negative reactions from Uzbekistan and Tajikistan.[24] The Latvian Foreign Minister viewed Kosyrev’s statement as political rhetoric issued exclusively for internal political purposes.[25] Kazakhstan’s Head of State also held this statement as electoral rhetoric issued to secure support from the government’s critics.[26]

Protection of nationals was regularly invoked after Putin came to power in 2000, as the successor of President Yeltsin.[27] The Russian Duma (Parliament) in particular was keen to invoke the doctrine in the context of the ongoing secessionist conflicts in the countries of the former Soviet Union (in Georgia – Abkhazia, South Ossetia and Moldova – Transnistria).

Protection of nationals has been incorporated into the military doctrines and foreign policy documents of the Russian Federation. Under the 1993 military doctrine – the first official policy document to mention the forcible protection of nationals – the Russian Federation was entitled to use force in individual and collective self-defence in response to an armed attack against its citizens, territory, armed forces, other forces or allies. “Russia’s Strategic Course with the CIS Countries” adopted in September 1995[28] conditioned Russia’s political, economic and military cooperation with the countries of the so-called “near–abroad” as regards the latter’s observance of the rights of Russian minorities residing within their borders.[29]

Protection of nationals was further envisaged in the 2000 Foreign Policy Concept,[30] the National Security Concept[31] and the Military Doctrine.[32] It became part of the Russian foreign policy discourse in subsequent years. In 2008, President Medvedev stated that protecting the lives and interests of Russian citizens “wherever they are” is among the five principles of Russian foreign policy.[33] The latest Russian Foreign Policy Concept of 2013 likewise recognises the protection of nationals as one of the main foreign policy goals of the Russian Federation.[34] Russia, under this concept, should promote Russian approaches to protecting nationals abroad in the international sphere.[35]

The Russian military doctrine adopted in 2014 envisages an entitlement to use force in the protection of Russian serviceman and citizens abroad,[36] and one of the main tasks of the Russian armed forces and other security forces in peacetime remains the protection of Russian citizens abroad from any armed attack.[37]

Circumstances under which such protection shall be provided are not further specified in the aforementioned policy documents. The personal scope of application of the doctrine remains vague. Furthermore, the Russian understanding of “nationals” has been quite broad from the outset, including Russian citizens residing in the territory of the former Soviet Republics as well as the ethnically Russian or Russian-speaking population.

2.2. Protection of nationals in the domestic law of the Russian Federation

In accordance with Article 61, paragraph 2, of the Russian Constitution, “the Russian Federation shall guarantee to its citizens protection and patronage abroad”. Article 14 (5) of the Russian Federal Act on State Policy in regard to Fellow Citizens Residing Abroad, of 24 May 1999, provides that, if a foreign State violates recognised norms of international law and human rights in regard to Russian expatriates, the Russian Federation shall make efforts authorised by international law to defend their interests.[38] This legislation leaves room for broader interpretations. For example, Chairman Zorkin of the Federal Constitutional Court interpreted the aforementioned provisions as authorising Russia to use force against Georgia in 2008 to defend the rights of Russian citizens residing in the separatist Georgian region of South Ossetia.[39] He also emphasised that Russia met its obligations to its citizens by launching a military operation in Georgia.[40]

Article 10 paragraphs 2 (1) and 3 of the Act of the Russian Federation on Defence (31 May 1996) envisages the use of the armed forces to protect Russian nationals abroad from any armed attacks.[41] The Venice Commission of the Council of Europe has criticised these provisions as not reflecting the current state of international law.[42]

3. Overview of practice

3.1. Russian troops in the Baltic States

Following the dissolution of the Soviet Union in 1991, the former Soviet troops (ca. 20.000 soldiers) remained deployed on the territory of the newly-formed independent Baltic States. In 1991–93, these States adopted new legislation on citizenship and aliens, which triggered controversy between Russia on the one hand and Estonia and Latvia, on the other.[43] The Russian Federation claimed that the new land reforms, language requirements and complicated citizenship and residence procedures led to the exclusion and discrimination of the Russian-speaking minorities in these States.[44] In 1992–93, Russia put a stop to withdrawals of its troops on several occasions, justifying this by invoking violations of the rights of the Russian-speaking population. For example, in April 1993, President Yeltsin attempted to justify a continued presence of Russian forces in the Baltic States.[45] In particular, he stated that Russian forces would remain deployed there as long as the rights of ethnic Russians are not guaranteed effectively in the region.[46] With respect to Lithuania, however, President Yeltsin stated: “we are completing the withdrawal of troops from Lithuania, as Lithuania does not violate human rights and treats the Russian-speaking population with respect. As Latvia and Estonia violate human rights, since according to their national legislation national minorities … are persecuted, and that involves basically Russians, we will link the withdrawal schedule with the human rights situation there, although we have adopted a political decision to pull the troops out of the republics”.[47] Thus, as some observers argued, “The Russian government sought to establish a link between human rights issues and the withdrawal of its troops. President Yeltsin, Defense Minister Pavel Grachev, and others insisted that a continued military presence was needed to protect the Russian-speaking population of Latvia and Estonia against some unspecified threat”.[48]

States did not accept such conditionality. This can be inferred from the rejection of the foreign military presence without host states’ consent reflected in a number of resolutions and statements of the UN and the CSCE (Commission on Security and Cooperation in Europe) – i.e. the predecessor of the OSCE. The 1992 UNGA Resolution on the “Complete withdrawal of foreign military forces from the territories of the Baltic States” expressed concern “about the continuing absence of any agreements for the complete withdrawal of foreign military forces from the territories of Estonia and Latvia”.[49] The same document called for “early, orderly, and complete” troop withdrawal from the Baltic States.[50] In 1992, the CSCE likewise recognised that Russian forces were deployed without the required consent of the Baltic States.[51] The withdrawal of those forces was complete by 31 August 1994. In December 1994, the CSCE Participating States adopted a declaration on the Baltic issue, welcoming the withdrawal of foreign troops from the Baltic States.[52]

3.2. Secessionist conflict in Abkhazia, Georgia (1992–1993)

During the conflict in the Georgian breakaway region of Abkhazia, which broke out between Georgian Government forces and Abkhazian armed groups in August 1992, the Russian authorities emphasised repeatedly that the rights of Russian nationals residing in the conflict zone had to be protected. In September 1993, the Georgian government lost effective control of Abkhazia. In December 1993, a ceasefire agreement with Russian mediation was signed, and in June 1994 a peacekeeping force under the auspices of the CIS (comprising mainly Russian troops) was deployed in the conflict zone.

As early as in 1992, President Yeltsin made a statement, according to which Russia would consider military intervention if the rights of Russian citizens in Abkhazia continued to be violated.[53] In subsequent years, simplified procedures for the acquisition of Russian citizenship were adopted, and in a relatively short period of time the residents of the breakaway region became Russian citizens.[54] Legal difficulties relating to the granting of Russian citizenship to the inhabitants of Abkhazia cannot be discussed in this place. However, it can be maintained that this practice enhanced the factual basis for invoking the necessity to protect nationals.

3.3. Conflict in Transnistria, Moldova (1990–1992)

In Transnistria, a largely Russian-speaking region of Moldova, conflict between Government forces and Transnistrian armed groups escalated in March 1992. These hostilities ended in July 1992, with the loss of effective Moldovan control over this region. On 21 July 1992, the Russian and Moldovan Presidents signed a ceasefire agreement and a tripartite Joint Control Commission involving the Russian, Moldovan and Transnistrian parties was set up. A peacekeeping mission was also deployed. Moreover, the Russian 14th Army, whose neutrality in the conflict had been the subject of some doubt,[55] remained deployed on the territory of Moldova.[56] Against this background, the protection of nationals has been invoked on several occasions by the Russian authorities. According to the International Crisis Group, “Between 1995 and 2002, the Duma passed more than ten resolutions supporting the DMR, and a special hearing was held on Transdniestria in 1997. The resolutions called on the Russian government to keep the Russian military in Transdniestria… There were also requests… to raise the issue of Moldovan human rights violations internationally, and protect Russian citizens in Transdniestria”.[57]

Protection of nationals has been invoked recently, especially as a reaction to Moldova’s rapprochement with the EU and its signature of a Free Trade Agreement therewith in 2014. In the course of the conflict in Ukraine in 2014, some representatives of the Russian political leadership emphasised the necessity for Russian nationals in Transnistria to be protected, and procedures for the acquisition of Russian citizenship by its inhabitants simplified. For example, Deputy Prime Minister Dmitry Rogozin, who also serves as the Russian President’s Special Representative for Transnistria, emphasised repeatedly that Russia would protect its citizens in Transnistria.[58]

This policy towards Moldova has not remained unnoticed internationally;[59] however, the protection of nationals has not been addressed widely (or rejected) by states. Only a few of them refer to Transnistria in this context.[60]

3.4. Russian military intervention in Georgia (2008)

In August 2008, an armed conflict broke out in the Georgian breakaway region of South Ossetia, between the Georgian Armed Forces and South Ossetian armed groups. Russia, invoking states’ inherent right to self-defence under Article 51 of the UN Charter, justified its military intervention in Georgia in terms of the protection of Russian nationals and CIS peacekeepers deployed in the conflict zone.[61] Indeed, at the time of the outbreak of hostilities, Russian nationals were living in the region. However, a great number of inhabitants of South Ossetia became Russian citizens as a result of an extended process of passportization, which preceded the outbreak of hostilities in 2008.[62]

The argument regarding the necessity to protect nationals was set out in the letter submitted by Russia’s Permanent Representative to the UN Vitaly Churkin to the UN Security Council on 11 August 2008, which states that the use of force is strictly proportionate to the scale of the attack and pursues no other goals but the protection of the Russian peacekeeping contingent and citizens of the Russian Federation from the illegal actions of the Georgian side, as well as the prevention of future armed attacks against them.[63]

With respect to Abkhazia, another breakaway region of Georgia, in which there was no active military confrontation between the Georgian Armed Forces and Abkhazian armed groups taking place in 2008, the Russian side argued that the RF’s Black Sea fleet was patrolling the coast of Abkhazia in order to protect Russian citizens, referring in this context to Article 51 of the UN Charter.[64] Going beyond the protection of nationals, Russia equally argued that it had to protect (all) inhabitants of the two separatist regions, justifying the intervention by reference to general humanitarian considerations.

Russian claims to be protecting its nationals in Georgia through the use of military force attracted international criticism. The Parliamentary Assembly of the Council of Europe considered, in its Resolution 1633 (2008), that “from the point of view of international law, the notion of ‘protecting citizens abroad’ is not acceptable”.[65] It further expressed its concern at “the political implications of such a policy by the Russian authorities for other Member States where a substantial number of Russian citizens reside”.[66] Some States, including the Baltic States and Poland shared this concern.[67] There was some criticism at the UN Security Council as well.[68] However, at the same time, many States did not express their position with regard to the protection of nationals by military force at all. In general, states expressing their rather cautious positions at the Security Council debate on the situation in Georgia did so for political reasons, and not because of specific legal considerations.

While analysing the application of the doctrine of protecting nationals abroad to justify the use of military force, the Independent Fact-Finding Mission on the Conflict in Georgia emphasized that “there is probably not one single instance in State practice where a State invoked an independent stand-alone entitlement to rescue its nationals, without relying on one of the classic grounds of justification”.[69] In addition, the Mission stated that “[T]he protection of nationals abroad does not constitute an independent exception to the prohibition of the use of force, and therefore does not provide a legal basis justifying a military intervention”.[70] It is not the purpose of this paper to examine if the conclusion reached by the Mission fully reflects previous State practice on the forcible protection of nationals. In any case, the Mission’s admission that only “Blitz-type actions[71] might be justified under international law” would not accommodate a rather broad understanding of protecting nationals abroad as implemented in Russian practice, because they are not limited to narrowly-defined rescue operations, and do not remain under the threshold of gravity of the use of force.[72]

International reactions demonstrate that states had not explicitly accepted arguments regarding the lawfulness of protecting nationals abroad as an element of self-defence or a stand-alone right. There is no indication that the silence of a great number of states in this regard must be interpreted as legally relevant approval of the practice of protecting nationals abroad through the use of military force. It cannot be proved that this inaction is based on changing legal considerations of states. It can thus be argued that, not only the concrete application of the doctrine of protecting nationals in this case and its accordance with international law was put into question, but, possibly also, to a lesser extent, the normative proposition on admissibility of protecting nationals abroad through military force as such. We can conclude with Olivier Corten, who notes that “once again the episode illustrates the reluctance of the international community of States as a whole to admit the arguments intended to justify military intervention by the protection of nationals”.[73]

3.5. Russian military intervention in Crimea, Ukraine (2014)

One of the arguments to legally underpin military intervention in Crimea,[74] Ukraine in March 2014 was the protection of Russian nationals from threats allegedly emanating from the newly established pro-Western government in Kiev.[75] However, it seems that the Russian Federation soon abandoned this argument and rather relied on the invitation issued by deposed Head of State Yanukovych.[76]

The Permanent Representative of the Russian Federation to the UN Security Council stated the following, with respect to the necessity of ensuring protection of “Russians and Russian-speaking peoples”:

In a situation of on-going threats of violence by ultranationalists against the security, lives and legitimate interests of Russians and all Russian-speaking peoples, popular self-defence brigades have been established. … In such circumstances, the legitimately elected authorities of the Republic have asked the President of Russia to help them to restore calm in Crimea. Such assistance is entirely legitimate under Russian law, given the extraordinary situation in Ukraine and the threat posed to Russian citizens, our compatriots and the Black Sea Fleet of the Russian Federation in Ukraine. The President of Russia therefore went before the Federation Council to request that the Russian armed forces be permitted to deploy in the territory of Ukraine until the civic and political situation there has been normalized. On 1 March, the Federation Council supported that appeal, which we hope will sideline the radicals. I repeat, the issue is one of defending our citizens and compatriots, as well as the most import human right — the right to life.[77]

Equally, the Russian Foreign Minister stated on 3 March 2014 that the use of Russian troops was necessary until the normalisation of the political situation had been achieved, in order to protect Russian citizens[78] (many of whom had in fact received their Russian passports not long before the intervention[79]).

A great number of States did not oppose this specific justification for the use of force, and in fact there were only a few explicit condemnations. For example, UK Foreign Secretary Hague stated, in this context:

If we do not stand up to such a profound breach of international agreements and the use of force to change borders in Europe in the 21st century, the credibility of the international order will be at stake and we will face more crises in the future. Russia and others will conclude that it can intervene with impunity in other countries where there are either Russian compatriots or orthodox populations. Indeed it has been a Russian policy over a number of years to encourage such links and dependencies, through the issuing of millions of Russian passports in Ukraine and other countries bordering Russia. Events in Crimea form part of a pattern of Russian behaviour including in South Ossetia, Abkhazia and Transnistria.[80]

In his Address on the goals of Polish foreign policy in 2014, the Foreign Minister of Poland likewise stated: “the use of armed forces under the pretext of protecting a national minority, which – let’s be clear – is not persecuted in Ukraine, is legally unacceptable and politically dangerous”.[81]

Most international condemnations do not specifically address the notion of protecting nationals. However, there was an overall rejection by the international community of the legality of the military intervention. The UNGA Resolution of 27 March 2014 declared the Russian annexation of Crimea illegal.[82] Likewise, the Resolution of 10 April 2014 issued by the Parliamentary Assembly of the Council of Europe to suspend Russia’s voting rights declared the military intervention in Crimea a violation of international law.[83] The European Council also concluded that Russia committed acts of aggression against Ukraine.[84] A range of EU and US sanctions against the Russian Federation followed. A number of foreign heads of state also stated that Russia violated international law by invading parts of Ukraine’s territory.[85]

4. What are the legal implications?

This brief review of Russian practice between 1992 and 2015 leads us to the conclusion that the protection of nationals has been invoked by the Russian Federation in many different contexts. The degree to which, and manner in which, force or threat of force was used varied from case to case, but protection of nationals was invoked rather incoherently and usually in combination with other legal or political arguments. The material scope of the Russian doctrine of protecting nationals remains somewhat vague in all the cases discussed above. Force or threat of force has been used to protect nationals from various, sometimes vaguely-defined threats. Moreover, Russia occasionally refers, not only to nationals, but also to compatriots, ethnic Russians and Russian-speakers. Such a broad understanding of one’s ‘nationals’ hardly has any legal foundation in international law.[86] Even if we assume that a narrow concept of protection is valid under international law, the Russian doctrine and practice would go well beyond such a limited concept.

Are there any legal implications for the law on the use of force? The ICJ stated in its Nicaragua Judgment that the “reliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law”.[87] Russian interpretation of the law on the use of force and non-intervention, and its attempts to create its own set of rules for the “near abroad” was not explicitly shared by a large and representative majority of states. Non-condemnation of this practice by a number of states does not indicate that the use of force to protect nationals in the former Soviet Republics had been accepted as legal. Although international reactions remained rather muted in some instances of application of the doctrine, there are no indications that the reluctance of states to condemn the practice of the Russian Federation had been based on substantive legal considerations.

Abstract: The Russian military intervention in Crimea, Ukraine, in March 2014 raises fundamental legal questions relating to the prohibition of the use of force enshrined in Article 2 (4) of the UN Charter. One of the arguments presented by the Russian Federation, to underpin the military intervention in Crimea legally, was the necessity to protect Russian nationals from the newly-established pro-Western government in Kiev. A great number of states did not oppose this specific justification for the use of force. Furthermore, according to some observers, Western states did not oppose the application of the same doctrine in the 2008 Russian-Georgian conflict. To clarify the potential legal implications of this practice for the law on the use of force this paper examines the Russian approaches to the doctrine of the forcible protection of nationals abroad, and its application in the countries of the former Soviet Union.

Key words: use of force, self-defence, protection of nationals, military intervention, Russia.

[*] Mindia Vashakmadze, Dr., Senior Research Fellow at the Max Planck Foundation for International Peace and the Rule of Law in Heidelberg, Germany; Associate, Institute of State and Law, Tbilisi State University. This paper has been last updated on September 30, 2015.

[1] S/PV.7125 3 March 2014 at 3. S/PV.7125 3 March 2014 at 3. Legal aspects of Russian intervention in Ukraine have already been discussed extensively in the literature; see e.g. P. Hilpold, Ukraine, Crimea and New International Law: Balancing International Law with Arguments Drawn from History, 14 Ch. J. Int’l L. 237 (2015), pp. 237–270; A. Tancredi, The Russian annexation of the Crimea: questions relating to the use of force, 1 QIL 5 (2014), pp. 5–34; Ch. Marxsen, The Crimea Crisis: an International Law Perspective, 74 Heidelberg J. Int’l L. 367 (2014), pp. 367–391; O. Luchterhandt, Der Anschluss der Krim an Russland aus völkerrechtlicher Sicht, 52 AVR 137 (2014), pp. 137–174; J. Kranz, Imperialism, the Highest Stage of Sovereign Democracy: Some Remarks on the Annexation of Crimea by Russia, 52 AVR 205 (2014), pp. 205–221; V. Bílková, The Use of Force by the Russian Federation in Crimea, 27 Heidelberg J. Int’l L. 28 (2015), pp. 28–51; T.D. Grant, Annexation of Crimea, 109 Am. J. of Int’l L. 68 (2015), pp. 68–95. On some of the non-military aspects of the doctrine, see M. Geistlinger, Der Schutz ihrer Landsleute im Ausland durch die Russländische Föderation unter besonderer Berücksichtigung der Ukraine, 89 Friedens-Warte 181 (2014), pp. 181–210.

[2] According to Corten, it would be excessive to contend that the “protection of nationals” argument has been invoked as such, and a fortiori accepted. It is true that a certain part of the debate within the UN focused on the existence – or the absence – of an existing threat against Russian nationals in Ukraine. However, legally speaking, Russia did not argue that a threat to its nationals would allow a military intervention without any other justification. As has been shown above, it rather constantly relied on an invitation by what is considered to be the competent authorities’. See O. Corten, The Russian intervention in the Ukrainian crisis: was jus contra bellum ‘confirmed rather than weakened’?, 2 Journal on the Use of Force and International Law 17 (2015), pp. 31–32.

[3] C. Gray, The Use of Force and the International Legal Order, in: M. Evans (ed.), International Law, Oxford University Press, Oxford: 2010, p. 627.

[4] On the forcible protection of nationals abroad see H. Waldock, The Control of the Use of Force by States in International Law, 81 Recueil des cours 455 (1952), p. 467; N. Ronzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity, Martinus Nijhoff Publ., Dordrecht: 1985; R. Lillich, Forcible Protection of Nationals Abroad: The Liberian ‘Incident’ of 1990, 35 German Yearbook of International Law 205 (1992), pp. 205–223; R.B. Lillich (Author), T.C. Wingfield and J.E. Meyen (eds.), Lillich on the forcible protection of nationals abroad: in memoriam of Professor Richard B. Lillich, 77 International Law Studies (2002); T. Gazzini, The Changing Rules on the Use of Force in International Law, Manchester University Press, Manchester: 2005, p. 170ff.; T. Ruys, The “Protection of Nationals“ Doctrine Revisited, 13 Journal of Conflict and Security Law 233 (2008), p. 233; see also T. Ruys, Armed Attack’ and Article 51 of the UN Charter – Evolutions in Customary Law and Practice, Cambridge University Press, Cambridge: 2012, pp. 213–249; O. Corten, The Law against War, Hart Publishing, Oxford: 2012, pp. 402–479; see also M. Forteau, Rescuing Nationals Abroad, in: M. Weller, The Oxford Handbook of the Use of Force in International Law, Oxford University Press, Oxford: 2015, p. 961.

[5] See A. Randelzhoffer and G. Nolte, Article 51, in: B. Simma et al. (eds.), The Charter of the United Nations – A Commentary, Oxford University Press, Oxford: 2012, p. 1411, MN 25. The authors emphasise that the applicability of Art. 51 UNC “is rejected by most commentators on the grounds that the security or existence of a State is not under threat if its nationals are assaulted in another country. Such an extensive interpretation of ‘armed attack’ would result in the blurring of any contours of the right of self-defense”.

[6] International Law Association, Washington Conference (2014), Report on Aggression and the Use of Force, under B.3.

[7] A. Randelzhoffer, O. Dörr, Article 2(4), in: B. Simma et al., The Charter of the United Nations – A Commentary, Oxford University Press, Oxford: 2012, pp. 227–228, MN 60.

[8] Ibidem, p. 228, MN 61.

[9] Ibidem.

[10] Th. Franck, Recourse to Force – State Action against Threats and Armed Attacks, Cambridge University Press, Cambridge: 2002, p. 96. He argues that “Narrowly, recourse to armed force in order to protect nationals abroad may be said to have been condoned as legitimate in specific mitigating circumstances, even though that recourse is still recognized as technically illegal. Or, in a broader interpretation of practice, the system may be said to have adapted the concept of self-defence, under Art. 51, to include a right to use force in response to an attack against nationals, providing there is clear evidence of extreme necessity and the means chosen are proportionate”.

[11] O. Corten, supra note 4, p. 548; see also T. Ruys, supra note 4.

[12] Draft Art. 2 stated: “the threat or use of force is prohibited as a means of diplomatic protection except in the case of rescue of nationals where: (a) the protecting state has failed to secure the safety of its nationals by peaceful means; (b) the injuring state is unwilling or unable to secure the safety of the nationals of the protecting State’; (c) the nationals of the protecting State are exposed to immediate danger to their persons; (d) the use of force is proportionate in the circumstances of the situation; (e) the use of force is terminated, and the protecting State withdraws its forces, as soon as the nationals are rescued”, First report on diplomatic protection, by Mr. John R. Dugard, Special Rapporteur A/CN.4/506 and Add. 1.

[13] Ibidem, paras. 47–60.

[14] See UN Docs. A/C.6/55/SR.15-A/C.6/55/SR.24, 15th to 24th meetings, 24 October – 3 November 2000.

[15] M. Forteau, supra note 4, p. 962.

[16] First report on diplomatic protection, supra note 12, paras. 47–60. The Special Rapporteur concludes that “from a policy perspective it is wiser to recognize the existence of such a right, but to prescribe severe limits, than to ignore its existence, which will permit States to invoke the traditional arguments in support of a broad right of intervention and lead to further abuse”, ibidem, para. 59.

[17] Roy Allison emphasises that, since the collapse of the Soviet Union, “Russia has been, one of few major states with the political will and some influence, at least through its permanent membership of the United Nations Security Council, to shape or maintain norms and law regulating the use of force. This can be traced discursively through justifications, claims, and responses of Russia and other states around major interventions”, R. Allison, Russia, the West and Military Intervention, Oxford University Press, Oxford: 2013, p. 1.

[18] See A/CN.4/672, ILC Second Report on Identification of Customary International Law (by Michael Wood), 22 August 2014, para. 77 at p. 69.

[19] As the ILC indicates: “The interpretation of inaction should generally be made in relative terms, account taken of the specific (sequence of) facts and the relationship between the States involved”, Third Report on Identification of Customary International Law (by Michael Wood), A/CN.4/682, para. 22.

[20] See e.g. A. Kozyrev, The Lagging Partnership, Foreign Affairs May/June 1994 Issue https://www.foreignaffairs.com/articles/russian-federation/1994-05-01/lagging-partnership [accessed: 20.09.2015]; see also B. Litera, The Kozyrev Doctrine – a Russian Variation on the Monroe Doctrine, 4 Perspectives (94/95), pp. 45–52.

[21] L. Hockstader, Moscow says it may use force to protect Russians in the ex-Soviet States, Washington Post 19.04.1995.

[22] Quoted in S.M. Birgerson, After the Breakup of a Multi-Ethnic Empire, Preager Publishers, Westport: 2002, p. 71.

[23] Ibidem.

[24] Ibidem.

[25] Ibidem.

[26] Ibidem.

[27] In 2000, the so-called Kozyrev Doctrine was replaced by a new foreign policy agenda reflecting the views of the Putin Government of a balance of power between Russia and the West, see I. Torbakov, Putin’s Russia Defines its Foreign Policy Agenda, Eurasianet 27.06.2000 http://www.eurasianet.org/departments/insight/articles/eav072800.shtml [accessed: 20.09.2015].

[28] Стратегический курс России с государствами – участниками Содружества Независимых Государств [Russia’s Strategic Course with the CIS Countries], approved by the President of the Russian Federation on 14 September 1995.

[29] Ibidem.

[30] Концепция внешней политики Российской Федерации [Foreign Policy Concept of the Russian Federation] http://archive.mid.ru//Bl.nsf/arh/19DCF61BEFED61134325699C003B5FA3 [accessed: 20.09.2015].

[31] Концепция национальной безопасности Российской Федерации [Concept for the National Security of the Russian Federation] http://nvo.ng.ru/concepts/2000-01-14/6_concept.html [accessed: 20.09.2015].

[32] Военная доктрина Российской Федерации [Military Doctrine of the Russian Federation] http://www.ng.ru/politics/2000-04-22/5_doktrina.html [accessed: 20.09.2015].

[33] Five Principles of Russian Foreign Policy proclaimed by President of the Russian Federation Dmitry A. Medvedev during an interview with Russian Television in the city of Sochi on 31 August 2008, http://indonesia.mid.ru/documents/3018403/9266181/russian_foreign_policy_13e.pdf [accessed: 25.09.2015].

[34] Концепция внешней политики Российской Федерации [Foreign Policy Concept of the Russian Federation] http://www.mid.ru/brp_4.nsf/0/6D84DDEDEDBF7DA644257B160051BF7F [accessed: 25.09.2015].

[35] Ibidem, para. 4.

[36] Военная доктрина Российской Федерации (Military doctrine of the Russian Federation) http://static.kremlin.ru/media/events/files/41d527556bec8deb3530.pdf [accessed: 25.09.2015].

[37] Ibidem.

[38] Федеральный Закон о государственной политике Российской Федерации в отношении соотечественников за рубежом (Federal Law of the Russian Federation on the State Policy in Regard to the Fellow Citizens Residing Abroad) http://www.mid.ru/bdomp/ns-dgpch.nsf/1a268548523257ccc325726f00357db3/8440d36903c217a4c3257776003a73f5!OpenDocument [accessed: 25.09.2015].

[39] В. Зорькин, Пройти по лезвию бритвы – Принуждение к миру и права человека (Peace enforcement and human rights), Российская Газета 13.08.2008.

[40] Ibidem.

[41] Федеральный закон ‘Об обороне’ (The Federal Act on Defence) http://base.garant.ru/135907/ [accessed: 25.09.2015].

[42] Venice Commission, Opinion on the Federal Law on the Amendments to the Federal Law on Defence of the Russian Federation, 21 December 2010, CDL-AD(2010)052, para 39: “The theory of intervention to protect a State’s own nationals does not have a clear legal basis. So far, no international court or tribunal has used it as justification for the use of military force”.

[43] For a critical assessment, see D.F. Orentlicher, Citizenship and National Identity, in: D. Wippman (ed.), International Law and Ethnic Conflict, Cornell University Press, Ithaca: 1998, pp. 298–331; see also D. Schorr, Citizenship and Alien Law Controversies in Estonia and Latvia, Belfer Center for Science and International Affairs, Harvard Kennedy School, Occasional Paper, 1994/4; UN Report, The Situation of Human Rights in Estonia and Latvia, UN Doc. A/47/748, Annex (1992); Report of the CSCE ODIHR Mission on the Study of Estonian Legislation, 15.01.1993, reprinted in 4 Helsinki Monitor 63; HRW, Integrating Estonia’s Non-citizen Minority, 1993/10; H.M. Birckenbach, Preventive Diplomacy through Fact-Finding – How international organizations review the conflict over citizenship in Estonia and Latvia, Lit Verlag, Hamburg: 1997.

[44] The Estonian Act on Land Reform of 17 October 1991 provided that only those who had been citizens of inter-war Estonia would be allowed to participate in the privatisation process. The Citizenship Act of 26 February 1992 in turn demanded that applicants demonstrate their knowledge of Estonian. It is necessary to note that, in the September 1992 elections, no ethnic Russians or Russian-speakers were elected. In summer 1993, the Estonian Parliament discussed the draft Act on Aliens, which stipulated the conditions for long-term residence of non-citizens in Estonia. It determined that the residence permit had to be renewed every five years, without guaranteeing that such renewal would be issued. Russia protested against it. The CSCE recommended that the draft law be amended. Subsequently, its most controversial provisions were deleted, see P. Kolstoe, Russians in the Former Soviet Republics, C. Hurst & Co., London: 1995, pp. 122–123.

[45] See G. Simon, Russland: Hegemon in Eurasien?, 6 Berichte des Bundesinstituts für ostwissenschaftliche und internationale Studien 1 (1994), p. 15; on the Russian military presence in the Baltic States see J. Woodliffe, The Stationing of Foreign Armed Forces Abroad in Peacetime, 43 Int’l & Comp. Law Q. 443 (1994), p. 447.

[46] Simon, supra note 45.

[47] ITAR-TASS 5.04.1993, cited in J.R. Beyrle, Case Study: The Withdrawal of Russian Military Forces from the Baltic States, National Defence College / National War College 1996, p. 11. On the withdrawal of Russian forces from Lithuania see also C.V. Stancevicius, The Negotiations with Russia on the Withdrawal of the Armed Forces from Lithuania, Publishing Centre at the Ministry of National Defence, Vilnius: 2002; a relevant book review by V. Vadapalas, in the Baltic Yearbook of International Law (2003), pp. 339-347. On the citizenship legislation in Lithuania in P. Kolstoe, supra note 44, pp. 138–142.

[48] R. Putins Peters, Russia, the Baltic States and the West, Demokratizatsiya, pp. 624–625 http://www.gwu.edu/~ieresgwu/assets/docs/demokratizatsiya archive/02-04_peters.pdf [accessed: 25.09.2015].

[49] A/RES/47/21 25 Nov. 1992

[50] Ibidem.

[51] 1992 Helsinki Summit Declaration, http://www.osce.org/mc/39530?download=true [accessed: 25.09.2015].

[52] CSCE Budapest Declaration, DOC.RC/1/95 (21 December 1994), Declaration on Baltic Issues, http://www1.umn.edu/humanrts/osce/new/Declaration-on-Baltic-Issues.html [accessed: 25.09.2015].

[53] (1992) Keesing’s Record of World Events 37228.

[54] I. Kashing, Abkhaz Rush for Russian Passports, Institute for War and Peace Reporting 27.06.2002 https://iwpr.net/global-voices/abkhaz-rush-russian-passports [accessed: 25.09.2015]; see also Council of Europe, Information documents – Georgia: Situation in Abkhazia. Simplified acquisition of Russian citizenship pending a political solution of the conflict, 11.07.2002.

[55] See e.g. Ch. Borgen, Imagining sovereignty, managing secession: The legal geography of Eurasia’s ‘frozen conflicts’, Legal Studies Research Paper Series 2009/2, p. 24; International Crisis Group, Moldova: Regional Tensions over Transdniestria, Europe Report N 157 17.06.2004, p. 2; for a different perspective E. Ozhiganov, Moldova: Transdniester and the 14th  Army, in: A. Arbatov, A. Chayes, A. Handler Chayes & L. Olson (eds.), Managing Conflict in the Former Soviet Union: Russian and American Perspectives, Centre for Science and International Affairs, Harvard Univ., Cambridge MA: 1997, p. 145.

[56] V.Y. Ghebali, La présence militaire russe en Moldova et en Géorgie – analyse du contentieux OSCE/Russie relatif aux engagements du sommet d’Istanbul de 1999, La sécurité internationale entre rupture et continuité (2007), pp. 199–218; Moldova asks Russia to withdraw troops, RFE/RL’s Moldovan Service 5.08.2014, http://www.rferl.org/content/moldova-russia-troops-transdniester-withdrawal/26515618.html [accessed: 25.09.2015].

[57] Moldova: Regional Tensions over Transdniestria, supra note 55, p. 19.

[58] Russia would protect citizens in Moldova in conflict, Agence Frane-Presse 1.10.2014.

[59] EU must ensure Moldova isn’t the next Crimea, Juncker says, Reuters 22.03.2014.

[60] See e.g. Oral Statement to Parliament by Foreign Secretary William Hague “Russia’s actions in Crimea” of 18 March 2014, in which a forcible protection of “Russian compatriots” is declared inadmissible, https://www.gov.uk/government/speeches/russias-actions-in-crimea [accessed: 25.09.2015].

[61] Russia’s Permanent Representative to the United Nations, in his letter of 11 August 2008 (S/2008/545) submitted to the President of the Security Council, refers to the Georgian action as an armed attack against the Russian Federation.

[62] A. Nussberger, South Ossetia, Max Planck Encyclopedia of Public International Law, para. 20. P.A. Goble, Russian Passportization, NY Times 9.09.2008; see also A. Osipovich, Controversial Passport Policy led Russians into Georgia: analysts, AFP 21.08.2008; A. Umland, A Shield of a Passport, Russia Profile 21.08.2008 http://russiaprofile.org/international/a1219335055.html [accessed: 25.09.2015].

[63] Russia’s Permanent Representative to the UN, Letter of 11 August 2008 (S/2008/545). According to official Russian Statements, a Russian peacekeeping force deployed in the conflict zone under the auspices of the Commonwealth of Independent States (CIS) came under Georgian fire, UNSC Report “The Situation in Georgia” (8 August 2008) UN Doc S/PV.5952, 4. However, the Independent Fact Finding Mission could not definitely confirm in its 2009 Report that the peacekeepers were indeed attacked. See the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, p. 268.

[64] Russian MFA Information and Press Department Commentary in Connection with a Media Question Concerning the Russian Black Sea Fleet 10.08.2008.

[65] Parliamentary Assembly Resolution 1633 Consequences of the War between Georgia and Russia (2008).

[66] Ibidem.

[67] Office of the President, Joint Declaration of the Estonian, Latvian, Lithuanian and Polish Presidents on the Situation in Georgia, 9.08.2008, qualifying Russian military intervention as aggression, http://president.ee/en/media/press-releases/1721-joint-declaration-of-estonian-latvian-lithuanian-and-polish-presidents-on-the-situation-in-georgia/index.html [accessed: 25.09.2015]; see also Riigikogu – The Parliament of Estonia, Declaration of the Presidents of the Parliaments of the Baltic States 10.08.2008 http://www.riigikogu.ee/index.php?id=50815 [accessed: 25.09.2015], expressing concerns about the applicability of the notion of protecting nationals abroad; see also similar Danish statement Fogh støtter Georgien 9.08.2008, Danmarks Radio http://www.dr.dk/Nyheder/Politik/2008/08/09/121043.htm?rss=true [accessed: 25.09.2015]; the Saeima of the Republic of Latvia stated that ‘Russia’s actions – military operations against Georgia and rhetoric about defending the interests of its citizens in other countries by the use of military force – create serious concerns that such actions set a dangerous precedent in international relations’, Statement on Russia’s military attack on Georgia 14.08.2008 http://www.saeima.lv/arhivs/en/pazinojums.pdf [accessed: 25.09.2015].

[68] See debate in the SC: S/PV.5952 8 August 2008; S/PV.5953 10 August 2008; S/PV.5961 19 August 2008; S/PV.5969 28 August 2008.

[69] Report, supra note 63, p. 286.

[70] Ibidem, p. 287.

[71] Ibidem, p. 286, the Commission argues that such measures remain under the threshold of gravity of the use of force and do not threaten the territorial integrity or political independence of a State.

[72] Ibidem, p. 285. It is less questionable that attacking military installations and troops may constitute an armed attack on the respective State in the sense of Art. 51 of the UN Charter, triggering the right of self-defence; however, the Mission put the fact of such an attack into question, concluding that the Russian military intervention was neither necessary nor proportionate to the protection of Russian peacekeepers in South Ossetia.

[73] Corten, supra note 4, p. 548.

[74] In 1954, the Crimea was transferred from the Russian Soviet Federal Socialist Republic to Ukraine. In 1921–1944 there had been a separate Autonomous Soviet Socialist Republic of Crimea within the RSFSR. In spring 1944, the Crimean Tatars were deported to Central Asia by the Soviet leadership. In 1945, the autonomous status of Crimea was abolished and it became part of the RSFSR. The Peninsula, part of Ukraine from 1954 on, remained Russian-dominated, ethnically and culturally.

[75] See statements of the Russian Permanent Representative at the UNSC’s 7125th meeting (3 March 2014) S/PV.715, 3. Putin Says: Russia Will Protect the Rights of Russian Abroad Washington Post 18.03.2014.

[76] See Corten, supra note 2; on this aspect see also H. Krieger, Ungebetene Gäste – zum Eingreifen auf Einladung in der Ukraine 2014, 89 Friedens-Warte 125 (2014), pp. 125–152.

[77] S/PV.7125 3 March 2014, p. 3.

[78] Lavrov: Troops in Crimea Protecting Russian Citizens, Voice of America 3.03.2014.

[79] V.M. Artman, Annexation by Passport, Aljazeera 14.03.2014; A. Blomfield, Russia ‘Distributing Passports in the Crimea’, Daily Telegraph 17.08.2008; see also a comment by J.A. Green, The Annexation of Crimea: Russia, Passportization and the Protection of Nationals Revisited, 1 Journal on the Use of Force and International Law 3 (2014), pp. 3–10.

[80] “Russia’s actions in Crimea”, supra note 60.

[81] Address by the Minister of Foreign Affairs on the goals of Polish foreign policy in 2014, 8.05.2014, http://www.msz.gov.pl/en/news/address_by_the_minister_of_foreign_affairs_on_the_goals_of_polish_foreign_policy_in_2014 [accessed: 25.09.2015].

[82] A/Res/68/262 27 March 2014.

[83] Parliamentary Assembly Resolution 1990 (2014), Reconsideration on Substantive Grounds of the Previously Ratified Credentials of the Russian Delegation. See also the PACE Report, Recent Developments in Ukraine: Threats to the Functioning of Democratic Institutions (8.04.2014) Doc 13482.

[84] “Council conclusions on Ukraine”, Foreign Affairs Council meeting, 3.03.2014; see also the joint statement by the Ministers of Foreign Affairs of the Nordic, Baltic and Visegrad countries 7.03.2014 http://www.atlanticcouncil.org/blogs/natosource/twelve-european-foreign-ministers-condemn-russian-aggression-against-ukraine [accessed: 25.09.2015].

[85] See e.g. the Statement of the US President on Ukraine 28.02.2014, The White House http://www.whitehouse.gov/the-press-office/2014/02/28/Statement-president-ukraine [accessed: 25.09.2015]; Kerry Condemns Russia’s “Incredible Act of Aggression” in Ukraine 2.03.2014, Reuters http://www.reuters.com/article/2014/03/02/us-ukraine-crisis-usa-kerry-idUSBREA210DG20140302 [accessed: 25.09.2015]; Krim-Krise: Merkel wirft Putin Verletzung des Völkerrechts vor 2.03.2014 Spiegel http://www.spiegel.de/politik/deutschland/krim-krise-merkel-wirft-putin-verstoss-gegen-voelkerrecht-vor-a-956514.html [accessed: 25.09.2015].

[86] See Opinion of the Legal Advisory Committee to the Ministry of Foreign Affairs of the Republic of Poland on the annexation of the Crimean Peninsula to the Russian Federation in light of international law, Warsaw 22 June 2014, pp. 4–5.

[87] International Court of Justice: Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), 27 June 1986, ICJ Rep. 1986, para. 207.

PART III
INTERNATIONAL RESPONSIBILITY AND THE CRIMEAN CONFLICT

Reactions to Russia’s Annexation of Crimea and the Legal Consequences Deriving from Grave Breaches of Peremptory Norms[*]
Enrico Milano[**]

doi: 10.7366/9014Crimea10

Introduction

Crimea’s referendum for self-determination and Russia’s ensuing annexation completed on 21 March 2014 have sparked a wave of international protest and accusations, especially from governments in Europe and in the West, to the effect that, by doing this, Russia was committing a grave violation of international law, in particular of the sovereignty and territorial integrity of Ukraine.[1] In some cases, Russia’s actions have been qualified as an act of aggression.[2] Recurrent have been the claims of those declaring that the results of the referendum, the ensuing annexation and its effects shall never be recognised.

Moreover, numerous States and international organisations, including the European Union and NATO, have adopted a number of sanctions targeting individuals, legal entities and, in general, the Russian economy, despite the absence of institutional action by the UN Security Council due to Russia’s veto, as a Permanent Member. While the “decentralised” nature of these sanctioning measures raises complex issues of international law, it is arguable that some fall within the array of collective reactions to grave violations of peremptory norms, which, together with non-recognition, are laid down in Article 41 of the ILC Draft Articles on State Responsibility (DASR)[3], such as the duty not to aid or assist the wrongdoer in consolidation of the unlawful situation, and the duty to cooperate through lawful means in order to bring an end to the given situation.

Starting from the assumption that Russia’s actions do constitute an act of territorial aggression against the territorial integrity of Ukraine, hence qualify as a grave violation of a peremptory norm of international law protecting States from external military aggression, the present chapter examines some of the international community’s reactions to the annexation of Crimea, and draws certain lessons regarding the current strengths or weaknesses of the legal regime as regards aggravated State responsibility, as envisaged by the International Law Commission in Articles 40 and 41 of the DASR.[4] What remains beyond the remit of this analysis – given that it is dealt with in another contribution appearing in the present book – is the possibility of sanctions against Russia as third-party countermeasures being construed as a reaction to violations of erga omnes obligations, a possibility that is increasingly present in the practice of states and international organisations, despite the ILC’s reluctance to draw such legal consequences in the 2001 Draft. We also stress that the ILC has inserted a saving clause in paragraph 3 of Article 41, providing that “[t]his article is without prejudice… to such further consequences that a breach to which this Chapter applies may entail under international law.”[5]

1. The practice of non-recognition in the case of the annexation of Crimea

The non-recognition practice surrounding the recent situation in Crimea has been quite significant, especially with regard to the referendum held on 16 March 2014, and the ensuing annexation by Russia.

The relevant practice has arisen predominantly, though not exclusively, in Western countries and organisations. In a statement issued on 12 March 2014, the G-7 leaders declared that “[…] such a referendum would have no legal effect. 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 force. For all these reasons, we would not recognize the outcome.”[6] According to the Joint Statement issued by President of the European Commission Josè Manuel Barroso, and President of the European Council Herman Van Rompuy, on 16 March 2014: “the European Union considers the holding of the referendum on the future status of the territory of Ukraine as contrary to the Ukrainian Constitution and international law. The referendum is illegal and illegitimate and its outcome will not be recognised.”[7] On the same day and in similar tone, the White House declared that “[the] referendum is contrary to Ukraine’s constitution, and the international community will not recognize the results of a poll administered under threats of violence and intimidation from a Russian military intervention that violates international law.”[8] For his part, NATO Secretary-General Anders Rasmussen stated, on 19 March 2014, that “Crimea’s annexation is illegal and illegitimate and NATO Allies will not recognize it”.[9]

At the level of the United Nations, the draft Resolution concerning the referendum in Crimea and presented by 41 (predominantly Western) countries for approval by the Security Council at its meeting of 15 March 2014 was vetoed by Russia, with only China abstaining.[10] In its preamble, the Resolution reaffirmed that “no acquisition of territory resulting from the threat or use of force shall be recognised as legal”; going on to declare that the referendum could “not have legal validity” and could “not form the basis for any alteration of the status of Crimea” further “call[ed] upon all States, international organizations and specialized agencies not to recognize any alteration of the status of Crimea on the basis of this referendum, and to refrain from any action or dealing that might be interpreted as recognizing such altered status.” During the meetings of the Security Council of 15 and 19 March, calls for non-recognition of the results of the referendum and of the prospective annexation by Russia were issued by the delegations of France, the United Kingdom, Lithuania, Australia, Jordan, Ukraine and Luxembourg.

On 24 March 2014, the UN General Assembly approved a draft Resolution proposed by Poland, Lithuania, Germany, Canada, Ukraine and Costa Rica, with 100 votes in favour, 11 against and 58 abstentions, titled “Territorial integrity of Ukraine”. Paragraphs 5 and 6 of the operative part of the Resolution reiterate, in almost identical words, the determinations made in the draft Security Council Resolution vetoed by Russia a few days earlier. They include a call for non-recognition of “any alteration of the status of the Autonomous Republic of Crimea and of the city of Sevastopol”, and to avoid “any action or dealing that might be interpreted as recognizing such altered status.”[11] The delegations of the EU, Norway, Georgia, Turkey and Liechtenstein in their statements referred expressly to the need for non-recognition of the outcome of the referendum and of Russia’s annexation of Crimea.[12]

As recalled specifically in GA Res. 68/262, a comprehensive approach to non-recognition is not limited to the formal recognition of the legality of a situation, such as an act of annexation, as such, but also extends to all relations of an economic, political, diplomatic and commercial nature that imply recognition of the illegal situation. For instance, as a reaction to the annexation of Crimea, the European Union has adopted successive regulations prohibiting the import into its territory of goods originating in the territory of Crimea and of Sevastopol, unless certified by the Ukrainian authorities.[13] Similar legislation has been adopted by countries such as the United States, Australia, Canada and Japan.[14]

And yet implied recognition is the ambit of the doctrine(s) of non-recognition in which most uncertainty remains, and the gap between normative principles and the actual practice of States remains wide. The recent practice of the EU entering into fisheries agreements with Morocco that extend to the waters off the coast of Western Sahara shows exactly that.[15] To be mentioned as examples concerning Crimea are non-recognition measures and stances that would implement a policy of non-recognition, also avoiding implied forms of recognition. This would entail: a) adoption of legislation preventing exports into Crimea if Russia was to impose Eurasian Customs Union regulatory requirements; b) measures to ensure that visa-application processes continue to respect Ukrainian sovereignty, through ongoing compliance with pre-annexation rules; c) refusal to recognise Russian passports issued in Crimea after the date of annexation; d) refusal to recognise under international law Russia’s claims to the territorial waters and Exclusive Economic Zone off the coast of Crimea; e) refusal to negotiate new agreements and apply existing ones with Russia including Crimea in their territorial scope of application.

At any rate, limited exceptions would apply, especially with a view to ensuring respect for the human rights of the local population. These should normally extend to the recognition of acts of local authorities, such as registrations of births and marriages, and to local judicial remedies for the purpose of protecting the rights of individuals.[16]

Finally, mention must be made of the six countries that have issued statements effectively recognising Russia’s incorporation of Crimea, i.e. Afghanistan, North Korea, Venezuela, Cuba, Nicaragua and Syria.[17]

2. Non-recognition in the theory of international law

From among the obligations laid down in Article 41 of the DASR, non-recognition is an obligation with a long-standing pedigree. Originally affirmed in the Interwar Period by the then US Secretary of State, Henry Stimson, as a reaction to Japan’s invasion of Manchuria,[18] in the United Nations Charter era the doctrine of non-recognition has acquired an established status under general international law, equally recognised by the UN General Assembly and Security Council, by the case law of international tribunals and by the International law Commission (ILC). And yet, ancient roots notwithstanding, there remains considerable uncertainty as to non-recognition’s foundation under positive law, and its precise scope of application. While non-recognition is normally associated with a specific practice regulated by a coherent body of international legal rules, analysis of the development of relevant theory in the 20th century shows that non-recognition has been construed by the doctrine, by judges and by law-makers on different legal bases and with different legal consequences. In particular, questions as to its mandatory nature, legal basis and precise scope of application have been variably addressed, in line with three prevailing accounts of non-recognition.

2.1. The “normativist” approach to non-recognition

The first approach we shall discuss is what we could refer to as “normativist”. Its main feature is as a legal obligation stemming from the objective illegality and invalidity of a given situation created in violation of international law. We could also define such illegality and invalidity as “erga omnes”, in the sense that it is opposable to all international legal subjects, which are under a duty not to recognise the given situation as lawful.

Expressions of this approach can be found in the Namibia advisory opinion, in which the Court was asked by the Security Council to identify the legal consequences stemming from the latter’s adoption of Resolution 276, which i.a. declared South Africa’s continued presence in Namibia illegal and called upon states to refrain from any dealings with South Africa concerning Namibia.[19] In examining the consequences for third states of the declaration of illegality of South Africa’s presence in Namibia, the Court relied on norms of general international law in identifying precisely the obligations incumbent upon non-member states of the UN – as such not bound by obligations imposed by the Security Council. According to the Court “the termination of the Mandate and the declaration of the illegality of South Africa’s presence in Namibia [were] opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law […].”[20] In its opinion, the Court also identified those relations which were incompatible with the determination of illegality made by UN political organs, such as entering into treaty relations, invoking and applying already existing treaty relations, exchanging diplomatic or consular missions and entering into economic relations, in other words, any acts or dealings that could “imply recognition” that the situation was legal.[21] The Court also introduced an element of flexibility in the doctrine of non-recognition, by stating that “the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”[22] We shall refer to this qualification made by the Court as the “Namibia exception”.

The “normativist” view is also supported by Judge Higgins’s separate opinion in the later advisory Legality of the Wall opinion in which the British judge criticised the Court’s decision to infer the obligation of non-recognition accruing upon third states with regard to the situation created by the construction of the Wall in the occupied Palestinian Territories from the erga omnes nature of the obligations breached. According to Judge Higgins

[t]hat an illegal situation is not to be recognized or assisted by third parties is self-evident, requiring no invocation of the uncertain concept of ‘erga omnes’. It follows from a finding of an unlawful situation by the Security Council, in accordance with Articles 24 and 25 of the Charter that ‘decisions are consequently binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 53, para. 115). The obligation upon United Nations Members not to recognise South Africa’s illegal presence in Namibia, and not to lend support or assistance, relied in no way whatever on ‘erga omnes’. Rather, the Court emphasised that ‘A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence.’ (Ibidem, para. 117.) […] Although in the present case it is the Court, rather than a United Nations organ acting under Articles 24 and 25, that has found the illegality; and although it is found in the context of an advisory opinion rather than in a contentious case, the Court’s position as the principal judicial organ of the United Nations suggests that the legal consequence for a finding that an act or situation is illegal is the same. The obligation upon United Nations Members of non-recognition and non-assistance does not rest on the notion of erga omnes.[23]

In sum, both the Namibia opinion and Judge Higgins’s separate opinion derive the erga omnes effect of the unlawful situation, hence the obligation of non-recognition accruing upon third parties, from the objective illegality and invalidity of the situation at hand.

As recognised implicitly in Judge Higgins’s separate opinion, the main difficulty with espousing the latter view is that one has to rely on an authoritative determination at the level of the United Nations declaring the objective illegality of the situation and calling upon states not to recognise the new situation as lawful, in order to avoid possibly conflicting assessments made by third states. The legal consequences deriving from such a shortcoming of the theory at hand, which was propounded by Portugal in its contentious proceedings against Australia in the East Timor case, may be conspicuous; exactly due to the fact that the Court in East Timor affirmed that “the argument of Portugal under consideration rests on the premise that the United Nations Resolutions, and in particular those of the Security Council, can be read as imposing an obligation on States not to recognize any authority on the part of Indonesia over the Territory and, where the latter is concerned, to deal only with Portugal. The Court is not persuaded, however, that the relevant resolutions went so far.”[24] Ultimately, the Court did not accept Portugal’s argument that the scope of the dispute with Australia could be limited to the latter’s compliance with obligations of non-recognition deriving from a number of Resolutions adopted by the Security Council, exactly because those Resolutions urged all parties to respect the right of self-determination of the people of East Timor, and condemned Indonesia’s invasion, yet did not explicitly determine the illegality of the situation and require non-recognition. In other words, a “triggering” determination is necessary to render the duty operational.

In the case of Crimea, as we have already seen, the Security Council was unable to approve a Resolution declaring the situation “illegal” and calling upon Member States not to recognise the results of the referendum organised by the Crimean authorities. Yet such a Resolution was adopted by the General Assembly, the determination of which may be considered more authoritative and representative than that of the Security Council, in that the whole of the international community is there represented, and had an opportunity to voice its views and vote on the draft Resolution.

From the perspective of the source of legal obligation, one can first identify the principle of ex iniuria ius non oritur, construing an obligation as deriving from a general principle of law. The view was held authoritatively by Hersch Lauterpacht in a famous passage of his classic, published in 1947, wherein “to admit that, apart from well-defined exceptions, an unlawful act, or its immediate consequences, may become suovigore a source of legal right for the wrong-doer is to introduce into the legal system a contradiction which cannot be solved except by a denial of its legal character. International law does not and cannot form an exception to that imperative alternative.”[25] The principle operates as a “trigger” for non-recognition when applied in relation to a legal claim to a certain status which is opposable erga omnes, such as in the case of an annexation or with regard to the claim to be considered the legitimate government of a country despite the establishment of a regime of apartheid.[26]

But a further, possibly complementary, explanation is available: namely that the duty incumbent upon third parties may result from the erga omnes nature of certain subjective rights of the state: in the case at hand, the right that Ukraine enjoys to see its territorial integrity respected, not only against forcible actions aimed at undermining it, such as the Russian intervention in support of Crimea’s separatists, but also against other types of action aimed at undermining its territorial integrity, such as recognition of the new status quo. That is clearly spelled out in the 1970 General Assembly Declaration on Friendly Relations, which states that “[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal”.[27] The same formula is also to be found in the Declaration on the Strengthening of International Security, adopted by the General Assembly in 1970.[28] A similar formulation appeared in the Definition of Aggression in 1974: “[n]o territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.”[29]

The main problem with identifying the legal basis in primary rules of conduct is that it is unclear whether implied forms of recognition come under the purview of the primary norms prohibiting explicit, formal recognition: by resorting to a restrictive, textual interpretation of those obligations, a state may argue that allowing commercial relations with an annexed territory does not enter into conflict with its duty to withhold recognition of the annexation as “legal”; or with its duty to facilitate the exercise of the right of self-determination of a people subjected to foreign occupation. An analysis of the travaux préparatoires for the General Assembly Resolutions concerning the duty as regards non-recognition of territorial acquisitions resulting from the use of force shows that the addition of the qualification “as legal” or “as lawful” was exactly intended to address the preoccupations of Western countries keen to avoid a regulation that would preclude de facto contacts and relations with illegal regimes.[30]

2.2. The “communitarian” approach to non-recognition

Under Articles 40 and 41 of the DARIOS, a duty of non-recognition shall arise where a situation is the result of a “gross violation of obligations deriving from a peremptory norm” of international law.[31] Replacing the previous idea of setting up a special regime for international crimes and of relying on the concept of erga omnes obligations,[32] the ILC in the 2001 Draft Articles decided to introduce the notion of “serious violations of peremptory norms of international law” in order to spell out an aggravated regime of state responsibility. Among the consequences of the responsibility arising out of grave breaches of peremptory norms, for example the prohibition of aggression or the obligation to respect the rights of self-determination of peoples, Art. 41(2) provides for the obligation for states not to “recognize as lawful a situation created by a serious violation” of a peremptory norm, together with the additional obligation not to render aid or assistance in maintaining that situation.[33] To that extent, the duty of non-recognition arises, not only from the nature of the obligation breached – arising out of a norm of jus cogens – but also out of what must be the serious nature of the violation, i.e. in the wording of the ILC articles, a “gross and systematic failure to fulfil the obligation”.[34] The ILC approach sees the duty of non-recognition as a communitarian countermeasure by which to react to the most egregious breaches of norms of a fundamental nature, and to bring an end to the illegal situation resulting therefrom. As already mentioned, the duty of non-recognition is part of a broad array of community measures aimed at restoring the status quo ante: art. 41(1) provides for a positive duty of all States to co-operate to bring to an end through lawful means any art. 40 situation; the second part of art. 41(2) provides for a further duty to abstain from rendering any form of aid or assistance in maintaining the unlawful situation.[35]

The ILC approach differs to a certain extent from the ICJ approach in Namibia. Firstly, it differentiates between violations in general – which may be minor or may not fall under the purview of a jus cogens norm or erga omnes obligation – and violations that, because of their gravity and because of the “public interest” underlying the affected norms, require a coordinated effort by the international community in rendering ineffective the results deriving from the violation of international law. In this sense, it is a secondary obligation applying regardless of the specific content of the primary norm which has been violated; and it is less reliant on the position of the injured State, whose waiver or recognition “cannot preclude the international community interest in ensuring a just and appropriate settlement”.[36] The second fact is the way this builds on a practice of States and international organizations that sees non-recognition as a reaction to the most significant violations of fundamental rules protecting the interests of the international community, and as a necessary tool at community has developed to deny legal effectiveness to a de facto situation. This is also confirmed, even if with different conceptual tools, by the ICJ in the Wall advisory opinion.

In that opinion, the Court held that, in view of the erga omnes character of the obligations breached by Israel (namely those relating to the self-determination of the Palestinian people and their protection under international humanitarian law), and given the construction of the wall in the West Bank and in and around East Jerusalem, States are under an obligation not to recognize the illegal situation.[37] According to the Court, it is thus the nature of obligations breached that makes non-recognition by other states obligatory in terms of international law. While one may appreciate the ICJ’s deployment of a conceptual toolbox differing from that used by the ILC, while still wondering about the real underlying motivations, the duty of non-recognition is also conceived as a communitarian countermeasure rectifying a breach of a norm of such fundamental importance to the international community. This approach should not be confused with the concept of “erga omnes” applied by the same Court in Namibia, as in that case the term only indicated the effect of the illegality determined by UN political organs with regard to the violation of certain rights enjoyed by the people of Namibia – namely opposable erga omnes – as opposed to the quality of the obligation breached as protecting an interest of the international community as a whole. In turn, it is arguable that the ILC approach establishes a more developed instrument of guarantee for the protection of community values, in that the obligation of non-recognition seems to acquire an erga omnes nature, entailing a right on the part of all states to require compliance with the secondary obligation. While we have not yet seen any example in that direction in practice, states and international organisations could invoke the responsibility of recognising states – as we have seen, in the case of Crimea, six so far – for violation of the obligation of non-recognition.

The ILC approach to non-recognition also fails to tackle impartial, third-party, “triggering” determination. For an obligation to become truly operational, it must at least rely on an authoritative determination made at the level of the United Nations, be it by the Security Council, the General Assembly or the International Court of Justice. These procedural aspects pertaining to the coordination of states as “care-takers” of the international community, are conspicuous by their absence from the ILC draft articles. Despite the “blatant”, “manifest” nature of the violations of international law involved in the ILC approach, and the fact that the ICJ propounds a theory based on the nature of the obligations breached that may warrant an active role of all states and international organisations as guardians of international legality, it is a fact that egregious violations of peremptory norms have managed even to escape the rhetoric of non-recognition, when put into motion by powerful actors. To be mentioned here are both the Kosovo and the Iraq examples, in which the Security Council and parts of the international community have endeavoured to recognise, rather than non-recognise the status quo produced by blatant violations of Art. 2, para. 4, of the UN Charter.[38]In other cases, the ambiguities surrounding authoritative determinations, those, e.g. on East Timor and Western Sahara, have left room enough for manoeuvre, where international actors wish to offer implied recognition of the legal authority of wrongdoers over those territories.[39]

Moreover, those seeking to identify the precise legal basis of the ILC approach are left halfway between a customary rule (with an inconsistent practice not satisfying the requirements of generality and uniformity if we except territorial acquisitions by force and apartheid regimes), and selective application of the general principle of ex iniuria ius non oritur. Given that the net result almost overlaps with the Namibia approach, in that not much is left in terms of practice invoked in the commentary – beyond instances of practice concerning acts of aggression or forcible denial of self-determination through apartheid – one is left wondering whether the difference between the two approaches is limited to the emphasis of the ILC and ICJ approach to the communitarian nature of the reaction, rather than revolving around the subjective rights of the injured subject; and whether the ILC distinction between primary and secondary norms is in this specific respect is helpful from the analytical point of view.

Be that as it may, in the case of Crimea, the link between non-recognition and the violation of erga omnes obligations is recognised by implication in the preamble to General Assembly Resolution 68/262, where specific mention is made of Art. 2 of the UN Charter, and of the duty of States to refrain from the threat or use of force against the territorial integrity and political independence of other states; despite the absence of any determination concerning Russia’s responsibility for military action or its act of annexation. Likewise, in the statement of 12 March from the G-7 leaders, it is declared that “[i]n addition to its impact on the unity, sovereignty and territorial integrity of Ukraine, the annexation of Crimea could have grave implications for the legal order that protects the unity and sovereignty of all states. Should the Russian Federation take such a step, we will take further action, individually and collectively” (emphasis added).[40]

2.3. Non-recognition as a sanction

A third stream has conceived non-recognition as a sanction. In a legal system like that pertaining internationally, lacking procedural mechanisms of authoritative, impartial and legally binding determinations, one is left to consider the different reactions of states and international organisations. Non-recognition is then to be construed as a social sanction seeking isolation of a wrongdoer, and resorted to by international actors intending to induce cessation of the illegal conduct. In other words, in the decentralised legal system that international law represents, it is hard to envisage a form of “objectively” illegal or invalid situation. Rather, the illegality is determined and enforced by each and every state, individually or collectively through international organisations, which may decide to sanction such illegality, for example, by deciding not to recognise any legal effects deriving from the said situation.

Under one version of the latter theory, non-recognition as such is not mandatory under any rule of international law, but rather results simply from the free choice a state or group of states make. Of course, a policy of non-recognition may be adopted by the Security Council, and that policy may thus become binding upon states. Art. 41 of the UN Charter or, alternatively, resort to implied powers under Art. 25 may provide the legal basis for such measures to be adopted. Article 41exemplifies the measures not involving the use of force that the Security Council may decide upon, with specific reference to a wrongdoing state, through reference to the severance of diplomatic and economic relations: non-recognition is one of the tools by which the international isolation of a wrongdoing state can be achieved. The present approach was taken by the Australian government in the East Timor proceedings before the ICJ, in which it held: “Australia denies that states are under an automatic obligation under general international law not to recognise or deal with a state which controls and administers a territory whose people are entitled to self-determination. There is no automatic obligation of non-recognition or non-dealing, even though that State may be denying the people the right to self-determination.”[41] Some years earlier, the Australian government had declared, with regard to Indonesia’s annexation of East Timor, that: “This is a reality with which we must come to terms. Accordingly, the Government has decided that although it remains critical of the means by which integration was brought about it would be unrealistic to continue to refuse to recognize de facto that East Timor is part of Indonesia.”[42] Australia’s views were upheld by the ICJ in its decision on jurisdiction, where it was by implication held that an obligation of non-recognition could not be deduced from Security Council Resolutions, in the absence of clear wording to that effect (with this representing implicit affirmation that such obligations may not derive from general international law).[43]

On the other hand, other authors construing non-recognition of grave violations of peremptory norms as mandatory under general international law, as a result of the operation of the principle of ex iniuria ius non oritur, maintain that non-recognition is not a consequence of the objective illegality and invalidity of the situation, but the means by which such illegality and invalidity is sanctioned and made subject to enforcement measures.[44]

The present approach to non-recognition may be labelled “realist”, in the sense that it is apparently faithful to the realities of international law. An obligation of non-recognition for third parties may only accrue as a result of obligations clearly imposed by primary rules, e.g. when there is a binding Security Council Resolution; or, with regard to a secessionist entity, a primary obligation not to proceed to premature recognition in the absence of an established and effective governmental organisation, i.e. a lack of central-government control and authority over a certain territory. Reactive measures are better described as “sanctions”, which may take the form of third-party countermeasures where there are grave breaches of fundamental principles of international law (a controversial possibility under the ILC law of State responsibility).[45] Yet the theory does not account for the fact that, in most cases where an unlawful situation has received zero or scanty recognition, this has often reflected determinations made by the Security Council, and hortatory measures not coming under the Ch. VII umbrella.[46]

If we apply the “realist” theory to the Crimean situation, we see that non-recognition of Crimea’s annexation remains a discretionary sanction; no legal obligation can be inferred from General Assembly Resolution 68/262; whereas it is arguable that the Security Council draft Resolution vetoed by Russia on 15 March would have made non-recognition mandatory under a broad reading and interpretation of the powers implicitly stemming from Article 25 of the UN Charter. Hence the recognition of Russia’s sovereignty over Crimea issued by certain countries would not be considered a breach of international law.

3. The duty not to render aid or assistance in maintaining the situation

The obligation not to render aid or assistance in maintaining the situation is another corollary of the illegality of a territorial situation, and one that concerns the position of third states as they penalise a grave breach of international law. While non-recognition refers mainly to avoiding ascribing legality to a situation produced by a grave breach of international law, the obligation not to render aid or assistance refers to the avoidance of material conduct which supports the maintenance and consolidation of the status quo produced by the illegal conduct. Both entail negative obligations. Moreover, the duty not to render aid or assistance in accordance with Art. 41 of the DASR should not be confused with the provision of Art. 16 dealing with responsibility for aid and assistance in the commission of the internationally wrongful act: according to the ILC, the former provision deals with the conduct of third states ex post facto, i.e. after the internationally wrongful act has been initiated, regardless of the continuing nature of the breach. In fact, in a case like Crimea, where the breach is a continuing one, the conceptual distinction between the two hypotheses identified by the ILC becomes blurred in practice, as third states will be equally bound not to render aid or assistance to the Russian occupation as a matter for both Arts. 41 and 16 of the DASR.

The customary nature of the obligation in point is not in doubt, and has been reaffirmed by the ICJ both in the Namibia and the Wall advisory opinions.[47] As far as Crimea is concerned, the duty not to render aid or assistance may imply a prohibition on economic or financial cooperation with Russia over the development of Crimea, or on military assistance extended to bases and troops stationed in Crimea. Limited recognition of day-to-day dealings and acts is still lawful, as it is assumed this will benefit local populations; e.g. one can presume that humanitarian aid and assistance to the Crimean population, even if channelled through the Russian local authorities, will not violate the obligation in point.[48]

On the other hand, it is arguable that states are not under the positive obligation to prevent their own nationals or corporations from trading commercially with the occupied territory, unless specific obligations to that effect are imposed by the United Nations, or those activities contribute directly to violations of international humanitarian law or international human rights law. In this respect, one may recall the embargo imposed by the Security Council in the case of the Iraqi occupation of Kuwait;[49] and Decree no. 1 of the UN Security Council for Namibia,[50] which went as far as to impose the obligation not to trade in Namibian natural resources directly upon private actors.[51] In this latter regard, one must note that, except in such rare circumstances, international law does not generally impose obligations upon private actors not to maintain commercial relations with an illegal occupant. Finally, the state should be aware that, under certain circumstances, the conduct of state-owned corporations may be attributed to it, especially when the conditions set out in Articles 5 and 8 of the DASR are fulfilled. In UN Council for Namibia v. Urenco, UNC and The Netherlands, the UN Council for Namibia summoned the State of The Netherlands to appear in court, due to its control over the two companies Urenco and UNC, which had allegedly enriched uranium originating from Namibia.[52]

4. The duty to cooperate to bring an unlawful situation to an end by lawful means

The obligations laid down in Article 41 also include a duty to “cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40”.[53] Of the three obligations envisaged in Article 41, the latter is the only positive obligation. And yet according to the commentary “[b]ecause of the diversity of circumstances which could possibly be involved, the provision does not prescribe in detail what form this cooperation should take. Cooperation could be organised under a competent international organisation, in particular the United Nations. However, paragraph 1 also envisages the possibility of non-institutionalised cooperation”.[54] In Legality of the Wall, dealing with the legal consequences of the construction by Israel of the aforesaid wall in the Palestinian occupied territories, the ICJ determined that “the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion”.[55] However, the ILC concedes that “[i]t may be open to question whether general international law at present prescribes a positive duty of cooperation, and paragraph 1 in that respect may reflect the progressive development of international law”.[56]

All that said, the practice concerning Crimea has seen states and international organisations engaging in numerous efforts as regards multilateral cooperation to address the crisis in Crimea, and Ukraine in general, through international organisations and fora, including the United Nations, the Organization for Security and Cooperation in Europe, the Council of Europe, the G-7, the European Union and NATO. It is quite significant that most of the non-recognition and sanctioning measures against Russia have been adopted via these multilateral efforts, and the insertion of the obligation in point before those of non-recognition and non-assistance seems to indicate that cooperation is the preferred course of action as the policy of non-recognition and non-assistance is pursued. The practice concerning Crimea also points to increasing awareness of the importance of multilateral cooperation in addressing grave violations of international law, albeit not necessarily indicating a belief that cooperation is obligatory under international law.

5. Measures not falling prima facie under any of the obligations under Article 41

A coherent and comprehensive policy of non-recognition and sanction may require further positive action by states, as well as the adoption of measures that do not come under the obligations envisaged in Article 41 and can be better qualified as retorsions. For instance, states might take appropriate measures to ensure that Crimean goods cannot access their market through Russia, by requiring that Russian authorities provide negative certification guaranteeing that goods are not partly or wholly sourced from Crimea. In the case of Russia’s failure to provide such certification, states may decide to apply targeted restrictions on certain categories of goods that have a high risk of originating from Crimea. Moreover, states and international organisations may adopt guidelines for national companies on the legal implications of operating and/or investing in Crimea – including the legality of transactions with businesses that own or make use of assets expropriated by the Russian or Crimean authorities.[57] They may also prohibit certain types of business with Crimea: for instance, the EU has imposed a prohibition on the provision of services related to tourism activities in Crimea; the prohibition is clearly addressed to EU private operators and is aimed at disrupting the economy of occupied Crimea.[58] States may also actively discourage their own nationals from visiting Crimea, through travel advice notices recommending against all but essential travel, and warning of the lack of consular assistance in Crimea.[59]

All these examples, on the other hand, imply positive actions by states and international organisations, which are discretionary in nature even under the “legal” theories of non-recognition. As a matter of fact, positive actions may result in proper sanctions: one may think of the adoption by certain states and international organisations of asset freezes, travel and export bans on those Russian or Crimean individuals that have benefitted from the illegal expropriation of Ukrainian owned assets, including infrastructure, in Crimea.[60] To the extent that such sanctions imply a breach of international legal obligations owed to Russia under existing treaty or customary rules, they may be qualified as third-party countermeasures, and they fall outside the scope of the present analysis.

Conclusions

Russia’s annexation of Crimea has met the firm protest of significant parts of the international community and has led to the General Assembly calling upon states and international organisations to not recognise any change in the status of Crimea. The call has been matched by the decisions of certain sectors of the international community to impose sanctions against certain entities and individuals which have promoted and benefitted from the separation of Crimea from Ukraine. The non-recognition practice just mentioned has surely reinforced non-recognition as a reactive measure to grave violations of fundamental legal principles regulating the relations among States.

The recurrent invocation of Ukraine’s sovereignty and territorial integrity, and of the unacceptability of territorial annexations, sometimes in connection with the affirmation of a non-recognition policy, may indicate a reinforcement of the “normativist” paradigm, especially if we emphasise non-recognition as a primary obligation related to the prohibition of aggression and annexation. The invocation of the legal principle of territorial integrity and of the need to respect the principles of international law embodied in the UN Charter has been general and widespread, even among those countries whose political reservations led them to abstain in the vote before the General Assembly. On the other hand, the communitarian paradigm is most prominent in the determinations made by international organisations and states: as a further example, one may recall the US statement to the effect that “[i]n this century, we are long past the days when the international community will stand quietly by while one country forcibly seizes the territory of another. We call on all members of the international community to continue to condemn such actions, to take concrete steps to impose costs, and to stand together in support of the Ukrainian people and Ukraine’s territorial integrity and sovereignty.”[61] Finally, non-recognition and non-assistance can be seen as the “de minimis” measure, in a broad array of tools, parts of the international community have adopted against Russia and Crimea’s authorities, in order to bring to an end the illegal situation through the imposition of political and economic “costs” to Russia’s adventurism. To that extent, the sanctions paradigm is also present in the practice we have analysed, especially if we look at that of Western countries, which have been most vocal in invoking a policy of non-recognition. Ultimately, the affirmation of a policy and a duty of non-recognition which reveals all three dimensions underlying the three doctrines of non-recognition is a sign that international law, at least at the very outset of a situation produced by a grave violation of its fundamental norms, endeavours to exercise the three functions, which, in turn, underlie the three doctrines: the protection of subjective rights of the injured party; the affirmation of a community interest in the protection of fundamental norms; and the need to enforce the legal norms being breached. In sum, and in a functional perspective, the relationship among the three approaches may be better described as one of complementarity, rather than mutual exclusion.

In general, the impression gained from the analysis of the practice concerning Crimea up to now is that the collective dimension to the international community has been reinforced, including the effectiveness of the legal regime regulating the consequences of grave violations of international rules protecting states from external aggression. Certain thorny issues remain unsolved though, such as the lack of an institutionalised and regulated mechanism by which to determine the existence of  grave violation of international law; and a gap in legality that can only be partially filled by the “mobilisation” of normative standards by influential and powerful sectors of the international community.

Abstract: Crimea’s referendum for self-determination and Russia’s ensuing annexation completed on 21 March 2014 have sparked a wave of international protest and accusations, especially from governments in Europe and in the West, to the effect that, by doing this, Russia was committing a grave violation of international law, in particular of the sovereignty and territorial integrity of Ukraine. The present chapter discusses the legal consequences of the violation of peremptory norms protecting Ukraine’s territorial integrity, with specific focus on the theoretical underpinnings and practical implications of the collective obligations laid down in Article 41 of the ILC Draft Articles on State Responsibility. The analysis of the practice concerning Crimea shows that the collective dimension of the international community has been reinforced, including the effectiveness of the legal regime regulating the consequences of grave violations of international rules protecting states from external aggression. Certain thorny issues remain unsolved though, such as the lack of an institutionalised and regulated mechanism by which to determine the existence of a grave violation of international law; a gap in legality that can only be partially filled by the “mobilisation” of normative standards by influential and powerful sectors of the international community.

Keywords: Crimea, Russian Annexation, Non-Recognition, Grave Breaches of Peremptory Norms.

[*] This chapter is a further elaboration of the presentation made in Warsaw and partly based on the article The Non-Recognition of Russia’s Annexation of Crimea: Three Different Legal Approaches and One Unanswered Question, 1 QIL 35 (2014).

[**] Enrico Milano (B.A., Padua; LLM, Nottingham; Ph.D., LSE) is Associate Professor of International Law at the University of Verona (Italy). He has an extensive publication record in the field of public international law, having written dozens of articles and book chapters on issues such as territorial disputes, statehood and recognition, dispute settlement and the law of international responsibility, and the law of international watercourses. He is the author of Unlawful Territorial Situations in International Law, Brill, 2006 and Formazione dello Stato e processi di State-building nel diritto internazionale. Kosovo 1999–2013 [State Formation and State-Building Processes: Kosovo 1999–2013], Editoriale Scientifica, Napoli: 2013. He is a member of the ILA Committee on Recognition and Non-Recognition and course director of the M.A. in Governance of Emergencies at the University of Verona. Professor Milano has acted as consultant for law firms, governments and international organizations on matters of territorial disputes, international watercourses law and investment arbitration.

[1] Подписанызаконыо принятии Крымаи Севастополяв состав России (Laws on Admitting Crimea and Sevastopol to the Russian Federation) (Press Release), http://eng.kremlin.ru/acts/6912 [accessed: 29.04.2014]; A. Pronin, Treaty between the Russian Federation and the Republic of Crimea on the Acceptance of the Republic of Crimea into the Russian Federation and on Creation of New Federative Entities within the Russian Federation (unofficial translation) (18 March 2014), https://www.academia.edu/6481091/AtreatyonaccessionoftheRepublicofCrimeaandSebastopoltotheRussianFederation.UnofficialEnglishtranslationwithlittlecommentary [accessed: 29.04.2014].

[2] See V. Lazumirskyy, Russia’s Actions regarding Crimea Violate International Law and are Squarely Unconstitutional (Latvian Institute of International Affairs, 2014), http://liia.lv/en/blogs/russias-actions-regarding-crimea-violate-internati/ [accessed: 15.03.2014]; H. Amos, Presence of Russian troops is an act of aggression and EU must react, says Ukraine, The Telegraph 30.08.2014. At its extraordinary meeting held on 3 March 2014, the Council of the European Union condemned “the clear violation of Ukraine’s sovereignty and territorial integrity by acts of aggression by the Russian armed forces”, Council of the European Union, Council conclusions on Ukraine – Foreign Affairs Council Meeting, Brussels, 3 March 2014 http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/141291.pdf [accessed: 18.03.2014]. On 4 March 2014, United States Secretary of State John Kerry at a press briefing held at the US Embassy in Kiev declares: “And the United States reaffirms our commitment to Ukraine’s sovereignty and territorial integrity, according to international law. We condemn the Russian Federation’s act of aggression”. John Kerry, Secretary of State, Press Briefing, http://www.state.gov/secretary/remarks/2014/03/222882.htm.

On 1.03.2014 several of the States intervening during the UN Security Council’s meetings spoke of an act of aggression See e.g. the interventions of the United States and Australia in UN Doc. S/PV.7124. See generally A. Tancredi, The Russian Annexation of the Crimea: Questions relating to the Use of Force, 1 QIL 5 (2014).

[3] Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Vol. II (Part 2) Yearbook of the International Law Commission (2001) and corrigendum, pp. 112–116.

[4] Ibidem, Article 40 Application of this chapter: “[1] This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. [2] A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.” Article 41 Particular consequences of a serious breach of an obligation under this chapter: “[1] States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40. [2] No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation. [3] This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law”.

[5] Ibidem.

[6] Statement of G-7 Leaders on Ukraine (12 March 2014), http://www.whitehouse.gov/thepress-office/2014/03/12/statementg7leadersukraine [accessed: 29.04.2014].

[7] Joint Statement on Crimea by the President of the European Council, Herman Van Rompuy, and the President of the European Commission, José Manuel Barroso (16 March 2014), http://ec.europa.eu/commission_2010-2014/president/news/archives/2014/03/20140317_1_en.htm [accessed: 29.04.2014].

[8] White House, Statement by the Press Secretary on Ukraine (16 March 2014), http://www.whitehouse.gov/the-press-office/2014/03/16/statement-press-secretary-ukraine [accessed: 29.04.2014].

[9] “NATO Secretary General condemns moves to incorporate Crimea into Russian Federation”, (18 March 2014), http://www.nato.int/cps/en/natolive/news_108100.htm [accessed: 29.04.2014].

[10] UNSC Draft Resolution, UN Doc. S/2014/189; UNSC Verbatim Record (15 March 2014) UN Doc. S/PV.7138. On the question of the applicability of the obligation to abstain under the last sentence of Art. 27, para. 3 of the UN Charter, to the draft resolution vetoed by Russia. See E. Milano, Russia’s Veto in the Security Council: Whither the Duty to Abstain under Art. 27(3) of the UN Charter?, 75(1) Heidelberg J. Int’l L. 215 (2015).

[11] UN Doc. A/RES/68/262 (24 March 2014).

[12] UN Doc. GA Verbatim Record (24 March 2014) UN Doc. A/68/PV.80.

[13] As of 25 June 2014, Council Decision 2014/386/CFSP and Council Regulation (EU) No. 692/2014 prohibit the import into the European Union of goods originating in Crimea and Sevastopol, unless they are accompanied by a certificate of preferential origin issued by the Ukrainian authorities. Financial services, such as provision of financing, financial assistance, insurance and re-insurance services, related to the import of goods subject to the prohibition are equally forbidden. On 30 July 2014, the Council adopted a Decision (2014/507/CFSP) and a Regulation (EU) No. 825/2014 amending Council Decision 2014/386/CFSP and Council Regulation (EU) No. 692/2014 to prohibit investment in Crimea and Sevastopol in specific sectors and to prohibit trade in certain goods with Crimea and Sevastopol in specific sectors.

[14] On 29 April 2014, Japan decided to temporarily suspend issuing visas to enter Japan to 23 individuals who are considered to have contributed to the violation of Ukraine’s sovereignty and territorial integrity. On 28 July, Japan decided to adopt, as soon as the required internal procedures are completed, the following sanctions: the freezing of assets in Japan of the individuals and organisations considered to have been directly involved in the annexation of Crimea and the introduction of restrictive measures with regard to imports from Crimea and Sevastopol. On 5 August, Japan implemented the above mentioned measures against the individuals with a restriction on payments, a restriction on capital transactions and, in addition, a restriction on importation (on all goods originating from the Autonomous Republic of Crimea or the city of Sevastopol). On 17 June 2014, the Australian government imposed sanctions, in relation to the Russian threat to Ukraine’s sovereignty, which imposed targeted financial sanctions and travel bans on designated persons and entities. The U.S. sanctions have been implemented through the Office of Foreign Assets Control, U.S. Department of the Treasury, which has issued a series of directives and established a new list of persons subject to OFAC restrictions; U.S. Department of Commerce has issued amendments to the Export Administration Regulations to impose new export licensing requirements and policies in connection with certain items exported to and end users in Russia. In addition, the U.S. has announced that certain items imported into the U.S. from Russia would no longer benefit from duty-free status.

[15] Council Decision of 16 December 2013 (n 33). In 2011 the European Parliament rejected the conclusion of the Protocol due to, among other things, its contrast with international law. Such agreement, already entered into provisional application, did not explicitly exclude from its scope the waters offshore of Western Sahara, a non self-governing territory occupied by Morocco in 1975. Later, in 2014, a new Protocol was concluded by the EU and Morocco. It has to be underlined that from a substantial point of view, this Protocol was quite similar to the previous one and potentially in breach of the duty of non-recognition. See M. Pertile, The Changing Environment and Emerging Resource Conflicts, in: M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law, Oxford University Press, Oxford: 2015, pp. 1077–1094, esp. 1089. On the legality of EU fisheries agreements with Morocco, see generally E. Milano, The New Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco: Fishing Too South?, 22 Anuario Español de Derecho Internacional 413 (2006).

[16] Case of Cyprus v. Turkey (Merits) (25781/94) ECHR 10 May 2001, http://www.echr.coe.int [accessed: 29.04.2014].

[17] See M. Rosenberg, Breaking With the West, Afghan Leader Supports Russia’s Annexation of Crimea, The New York Times (23.03.2014); E. Graham-Harrison, Afghan president Hamid Karzai backs Russia’s annexation of Crimea, The Guardian (24.03.2014), http://www.theguardian.com/world/2014/mar/24/afghan-president-hamid-karzai-backs-russia-annexation-crimea [accessed: 30.04.2014]. See generally the statements released by the above mentioned countries in UN Doc. A/RES/68/262 (27 March 2014), UN Doc. A/68/PV.80, p. 6 (Cuba), p. 12 (Nicaragua), p. 20 (North Korea), p. 24 (Venezuela) and UN Doc. GA/11493 (Meetings Coverage).

[18] Cited in R. Langer, Seizure of Territory, Princeton University Press, New Jersey: 1945, p. 58. On the Stimson doctrine see also W. Meng, Stimson Doctrine, 4 Encyclopedia of Public International Law 690 (1982) and D. Turns, The Stimson Doctrine of Non-Recognition: its Historical Genesis and Influence on Contemporary International Law, 2 Ch. J. Int’l L. 105 (2003).

[19] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971], ICJ Rep. 16.

[20] Ibidem, p. 55.

[21] Ibidem, p. 56.

[22] Ibidem, p. 55.

[23] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004], ICJ Rep. 216, Separate Opinion of Judge Higgins.

[24] East Timor Case (Portugal v. Australia) (Jurisdiction) [1995], ICJ Rep. 103.

[25] H. Lauterpacht, Recognition in International Law, Cambridge University Press, Cambridge: 1947, p. 421.

[26] M. Dawidowicz, The Obligation of Non-Recognition of an Unlawful Situation, in: J. Crawford, A. Pellet & S. Olleson (eds.), The Law of International Responsibility, Oxford University Press, Oxford: 2010, p. 683.

[27] UN Doc. A/RES/2625(XXV) (24 October 1970).

[28] UN Doc. A/RES/2734(XXV) (16 December 1970), para 5.

[29] UN Doc. A/RES/3314(XXIX) (14 December 1974), Art. 6, para 3.

[30] S. Talmon, The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?, in: C. Tomuschat & J.M. Thouvenin (eds.), The Fundamental Rules of the International of the International Legal Order: Jus Cogens and Obligations Erga Omnes Obligations, Martinus Nijhoff, Leiden: 2006, p. 99.

[31] Arts. 40 and 41, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Yearbook of International Law Commission (2001), Vol. II (Part 2) and corrigendum in UN Doc. A/56/10, pp. 277–292.

[32] For a critical appraisal of the choice to abandon the concept of erga omnes obligations, in order to espouse that of jus cogens, see generally P. Picone, The Distinction Between Jus Cogens and Erga Omnes Obligations, in: E. Cannizzaro (ed.), The Vienna Convention Beyond the Law of the Treaties, Oxford University Press, Oxford: 2011.

[33] ILC Articles on State Responsibility with Commentary supra note 3.

[34] Ibidem.

[35] On the relationship among the three different obligations see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004], ICJ Rep. 216, Separate Opinion of Judge Higgins and Judge Kooijmans.

[36] ILC Articles on State Responsibility with Commentary supra note 3, pp. 289–290.

[37] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004], ICJ Rep. 200.

[38] E. Milano, Unlawful Territorial Situations in International Law. Reconciling Effectiveness, Legality and Legitimacy, Martinus Nijhoff, Leiden: 2006, pp. 190–265.

[39] East Timor Case (Portugal v. Australia) (Jurisdiction) [1995], ICJ Rep. 104; Council Decision of 16 December 2013 on the conclusion, on behalf of the European Union, of the Protocol between the European Union and the Kingdom of Morocco setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Kingdom of Morocco OJ L 349 1.

[40] Statement of the G-7 Leaders on Ukraine (n 4).

[41] CR 95/14, 16 February 1995 at 36, para. 5 (James Crawford) http://www.icj-cij.org/docket/files/84/5327.pdf [accessed: 29.04.2014]. See also A. Pert, The ‘Duty’ of Non-Recognition in Contemporary International Law: Issues and Uncertainties, 30 Chinese (Taiwan) Yearbook of International Law and Affairs 48 (2014). Australia’s position on non-recognition, together with the practice originating from other States concerning unrecognised entities, is described in ILA Committee Recognition/Non-Recognition Second (Interim) Report (2014), http://www.ila-hq.org/en/committees/index.cfm/cid/1032 [accessed: 2.05.2014].

[42] Quoted in O. Dörr, Kompendium völkerrechtlicher Rechtsprechung, Mohr Siebeck, Tübingen: 2004, p. 593.

[43] East Timor Case (Portugal v. Australia) (Jurisdiction) [1995], ICJ Rep. 104.

[44] E.g. A. Tancredi, A Normative ‘Due Process’ in the Creation of States through Secession, in: M. Kohen (ed.), Secession: International Law Perspectives, Cambridge University Press, Cambridge: 2006, pp. 199–207.

[45] ILC Articles on State Responsibility with Commentary supra note 3, p. 349.

[46] M. Dawidowicz, supra note 26, p. 693.

[47] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971], ICJ Rep. 16. See also the recently adopted Guidelines on the eligibility of Israeli entities and their activities in the territories occupied by Israel since June 1967 for grants, prizes and financial instruments funded by the EU from 2014 onwards: [“the guidelines”] aim is to ensure the respect of EU positions and commitments in conformity with international law on the non-recognition by the EU of Israel’s sovereignty over the territories occupied by Israel since June 1967 (para. 1) (http://eeas.europa.eu/delegations/israel/documents/relatedlinks/20130719_guidelines_on_eligibility_of_israeli_entities_en.pdf [accessed: 6.06.2015]).

[48] Ibidem, p. 55.

[49] UN Doc. S/RES/661 (1990).

[50] United Nations Council for Namibia, Decree No. 1 for the Protection of the Natural Resources of Namibia (27 December 1974).

[51] See generally N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties, Cambridge University Press, Cambridge: 1997 and N. Schrijver, Natural Resources, Permanent Sovereignty over, Max Planck Encyclopedia of Public International Law (2008).

[52] N. Schrijver, The UN Council for Namibia vs. Urenco, UCN and the State of The Netherlands, 1 Leiden Journal of International Law 25 (1988).

[53] Art. 41 of the ILC Articles on State Responsibility with Commentary, supra note 3, pp. 112–116.

[54] Ibidem.

[55] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004], ICJ Rep. 202.

[56] ILC Articles on State Responsibility with Commentary, supra note 3, p. 114, para. 3.

[57] For instance on 5 August 2014, Japan implemented the above mentioned measures against the individuals with a restriction on payments, a restriction on capital transactions and, in addition, a restriction on importation (on all goods originating from the Autonomous Republic of Crimea or the city of Sevastopol). On 17 June 2014, the Australian government imposed sanctions in relation to the Russian threat to Ukraine’s sovereignty, which placed targeted financial sanctions and travel bans on designated persons and entities. The U.S. Department of Commerce has issued amendments to the Export Administration Regulations to impose new export licensing requirements and policies in connection with certain items exported to and end users in Russia. In addition, the U.S. has announced that certain items imported into the U.S. from Russia would no longer benefit from duty-free status.

[58] E.g. Council Regulation (EU) No. 1351/2014 prohibits the provision of services directly related to tourism activities in Crimea and Sevastopol. Specifically, EU cruise ships are banned from entering into or calling at any port situated in the Crimean Peninsula, as listed in Annex III of the Regulation. These ports include: Sevastopol; Kerch; Yalta; Theodosia; Evpatoria; Chernomorsk; and Kamysh-Burun.

[59] See e.g. U.S. Passport Service Guide – Travel Warnings 2015 – Ukraine on July 16, 2015, http://www.us-passport-service-guide.com/travel-warning.html [accessed: 20.09.2015]: “The Department of State warns U.S. citizens to defer all travel to Crimea and the eastern regions of Donetsk and Luhansk, and recommends those U.S. citizens currently living in or visiting these regions to depart.”

[60] Travel restrictions and a freezing of assets have been decided upon by the US administration and by the EU against public officials, representatives and entities in Crimea and Russia. For the latest sanctions imposed by the EU, see Council Implementing Regulation (EU) No. 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (28 April 2014) http://register.consilium.europa.eu/doc/srv?l=EN&f=ST 9097 2014 ADD 1 DCL 1 [accessed: 2.05.2014].

[61] White House, Statement by the Press Secretary on Ukraine (16 March 2014), www.whitehouse.gov/the-press-office/2014/03/16/statement-press-secretary-ukraine [accessed: 29.04.2015].

International Reactions to the Crimea Annexation under the Law of State Responsibility: “Collective Countermeasures” and Beyond?
Maurizio Arcari [*]

doi: 10.7366/9014Crimea11

Introduction

The aim of this paper is to assess the international reactions to the Crimea annexation in light of the rules of state responsibility dealing with the consequences of serious breaches of fundamental norms of international law, setting forth the so-called erga omnes obligations, i.e. those owed to the international community as a whole. In particular, this paper has focused on the legal problems surrounding the regime of so-called “collective countermeasures”, a term of art intended to cover decentralised and non-institutionalised reactions to violations of erga omnes obligations undertaken/adopted by states not affected directly by such violations. Considering that collective countermeasures unquestionably represent one of the most ambiguous and unclear aspects of the whole regime of state responsibility,[1] this paper also seeks to evaluate whether and to what extent the Crimea crisis has contributed to some clarification of the topic.

The purposes stated above need further qualification from both a factual and a legal point of view. From a factual point of view, one may assume that the annexation of Crimea, being the result of a wrongful use of armed force by Russia against Ukraine and of the Russian military occupation of Ukrainian territory, amounts to a grave breach of certain fundamental norms of international law, such as the rules prohibiting territorial acquisition carried out through the use of force as well as proscribing aggression.[2] Still as a matter of fact, one may also consider that a quantitatively limited but qualitatively important set of states (notably the United States, but also Canada and Australia), and other actors in the international community (the European Union and its Member States)[3] have reacted to these egregious violations of international law by adopting a set of measures intended to put pressure on Russia, and to reverse the annexation of Crimea.

From a legal point of view, insofar as such events can be qualified, with all the due prudence, respectively as serious violations of peremptory norms and erga omnes obligations and as examples of decentralised reactions assumed by non-directly-injured states, they call into question the application and the interpretation of the relevant rules of the law of State responsibility.

Accordingly, this paper will be divided into three parts. The first part will offer a sketched overview of the relevant rules on State responsibility applicable to the legal consequences of the annexation of Crimea, as they are codified in the Draft Articles on the Responsibility of States for internationally wrongful acts (hereinafter “Draft Articles on State Responsibility”) adopted by the International Law Commission (ILC) in 2001.[4] The second part will consider whether and to what extent the reactions assumed by certain actors of the international community in the face of the Crimea annexation can be framed within the relevant ILC draft rules. The third part will eventually assess whether the Crimean case may help shed some light on the legal regime where reactions to violations of erga omnes obligations in international law are concerned.

1. A sketched overview of the relevant ILC draft articles on state responsibility (articles 41, 48 and 54)

The regime of “collective” or “third-party” reactions to breaches of obligations under international law of fundamental importance is dealt with in a rather complex fashion in the ILC Draft Articles on State Responsibility, as it is fragmented into three different provisions. The first relevant provision is draft Article 41, which deals with the “particular consequences” of a serious breach of obligations under peremptory norms of general international law, and which sets forth a number of “solidarity measures”, entailing obligations bearing on all the states of the international community. Under the said Article 41, all states shall, on the one hand “cooperate to bring to an end through lawful means” any serious breach of peremptory norms (para. 1); while on the other, they shall not “recognize as lawful the situation created by a serious breach” and not “render aid or assistance in maintaining that situation” (para. 2).[5]

While the second paragraph of Article 41, concerning the obligations of non-recognition, will be dealt with appropriately in other contributions to this volume,[6] for the present purposes it could be worth considering the first paragraph of the provision, which intends to impose on States some kind of positive obligation to cooperate in bringing an end to the unlawful situation created by a serious breach of peremptory norms.

The ILC commentary to that paragraph points out that “what is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches”. At the same time, the provision intentionally leaves undefined both the forms and means of such “joint and coordinated effort”. As to the forms, it could be assumed that the provision at hand also envisages the possibility of non-institutionalised cooperation, carried out outside the framework of competent international organisations.[7] Where the means of cooperation are concerned, the use in paragraph 1 of Article 41 of the expression “through lawful means” does not add any substantial clue to the matter, and this is also reflected in the ILC commentary, which states rather perfunctorily that “cooperation must be through lawful means, the choice of which will depend on the circumstances of the given situation.”[8] The impression that the provision at stake was intended to reflect a trend of progressive development of international law rather than a positive duty of cooperation already existing in current customary international law,[9] is further reinforced by the “saving clause” provided for in the third paragraph of Article 41, which in fact leaves open the possibility that further developments may be achieved in this area under (general) international law.[10]

The second relevant provision worth recalling for the present purposes is draft Article 48, dealing with the different question of the entitlement to invoke state responsibility in cases of the breach of international obligations owed to a group of states and protecting a collective interest of the group (para. 1, letter (a), covering the case of erga omnes partes, i.e. obligations provided for in multilateral treaties), or owed to the international community as a whole (para. 1, letter (b), which intends to cover properly the erga omnes obligations established under customary international law).[11] It is just to be noted that the latter hypothesis overlaps with the situation covered by draft Article 41 of the ILC Draft, concerning the special consequences of serious breaches of peremptory norms under general international law. The basic idea underlying draft Article 48 is that, in the case of violations of erga omnes obligations, the number of States characterised by an interest in invoking the responsibility of the lawbreaker is enlarged, so as to include states not affected directly or materially by the violation, but nonetheless affected in their right to seek respect for the erga omnes obligation. In fact, such interested states may potentially be “[e]ach State (…) as a member of the international community as a whole”.[12] At the same time, the positions of states “affected indirectly” are differentiated from the point of view of the legal consequences they may invoke following the violation of an erga omnes obligation. While only the State injured directly by the violation (provided that it exists) may invoke the full range of consequences arising therefrom (cessation, guarantees of non-repetition, full reparation, and also countermeasures), the states “other than the injured” may, under draft Article 48, para. 2, claim from the responsible state “(a) the cessation of the internationally wrongful act, and assurances and guarantees of non-repetition (…)”, as well as “(b) performance of the obligation of reparation”; it is to be noted that, in the latter case, the request for reparation has to be made “in the interest of the injured State or of the beneficiaries of the obligation breached”. As the ILC commentary points out, this aspect of Article 48, para. 2 also involves a measure of progressive development, which is justified “since it provides a means of protecting the community or collective interest at stake”.[13] On the other hand, nothing is said in the provision at hand about the possibility for the “indirectly injured States” to have recourse to countermeasures intended to force the lawbreaker to comply with its obligations of cessation and reparation.

The problem of the so-called “collective countermeasures”, i.e. those resorted to by states other than those injured directly by the breach of an erga omnes obligation, is dealt with in the separate provision of draft Article 54. However, the effect of this provision is to beg the question, insofar as its formulation eventually turns into a “non-prejudice clause”. Under Article 54, the ILC Draft Articles “do not prejudice the right of any State, entitled under Article 48, para. 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached”.[14]As one commentator noted perspicuously, the ILC’s intentional use of the word “measures” in the title of Article 54, and of the expression “lawful measures” in its text, has the effect of bringing within the scope of the provision “an ambiguity worthy of the oracle at Delphi”.[15]As a matter of interpretation, the expression “lawful measures” can be understood to encompass both those which are by their nature lawful, such as retorsions, and those which are intrinsically unlawful, but whose illegality can be excluded insofar as they are resorted to as a reaction to a previous violation (countermeasures in the proper sense).[16] The reasons for such an ambiguous solution were justified by the ILC in the commentary to draft Article 54, considering that “the current State of international law on countermeasures taken in the general or collective interest is uncertain. State practice is sparse and involves a limited number of States”.[17] At the end of the day, with this saving clause, the ILC preferred to reserve its position on the question of the admissibility of collective countermeasures under the law of State responsibility, and to “leave the resolution of the matter to the further development of international law”.[18]

2. The reactions of the United States and of the European Union to the annexation of Crimea: a case for collective countermeasures?

What is worth considering now is whether and to what extent the Crimean crisis may fit into the legal landscape sketched above. As already mentioned, it is a fact that – in the present case – it has mainly been Western States acting unilaterally (e.g. the United States) or regional organisations (i.e. the European Union) that have gone beyond mere retorsion (in various forms), to also adopt more severe restrictive measures indisputably representing forms of collective reaction by “third states” (or “third parties”), not directly affected or injured by the violations of international law committed by Russia through its annexation of Crimea.

As to their content and scope, these reactions can be distinguished by way of a three-step approach that corresponds to different phases of the Crimean crisis. In a first phase, measures entailing the freezing of economic resources and restrictions on transit were adopted against individuals responsible for the misappropriation of Ukrainian State funds, or for human-rights violations committed in Ukraine from early 2014 onwards.[19] It must be admitted that these measures are only less-readily classifiable as examples of traditional inter-state countermeasures, insofar as they can be assimilated to urgent and exceptional policing measures intended to deal with the political turmoil in Ukraine, the purpose of which was to exert pressure on persons of Ukrainian nationality supposedly bearing responsibility for that situation.

However, in a second phase to the crisis, when the events leading to the Crimean declaration of independence materialised, and the involvement of Russia appeared indisputable, the same kind of measures were adopted against persons responsible for “actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine”, and charged with high-level political or military responsibilities in Crimea and Russia.[20] At this juncture, the intent of Western countries and of the European Union to react to the breaches of international law committed by Russia, by targeting named individuals who were officials or agents of Russia and of the secessionist authorities of Crimea, became evident. An outstanding example is given by US Executive Order 13661 of 16 March 2014, providing for the freezing of property assets of persons falling within the determined category of “official of the Government of the Russian Federation” or “senior official of the Government of the Russian Federation”, and calling explicitly into question “the actions and policies of the Government of the Russian Federation with respect to Ukraine– including the recent deployment of Russian military forces in the Crimea region of Ukraine”.[21]

Finally, in a third and most recent phase of the crisis, acts adopted to amend or extend the restrictive measures relating to the situation in Ukraine have allowed both the US and the EU Member States to espouse the more “classical” forms of economic boycott, targeting trade and economic activity on the territory of Crimea directly. Interestingly, such forms of economic boycott have been qualified openly and directly as a response to the persistent (illegal) Russian occupation of Crimea. One may cite as an example US Executive Order 13685 of 19 December 2014, which envisages “additional steps to address the Russian occupation of the Crimea region of Ukraine” and prohibits “(i) new investments in the Crimea region of Ukraine by a United States person, wherever located”, “(ii) the importation into the United States, directly or indirectly, of any goods, services, or technology from the Crimea region of Ukraine”, and “(iii) the exportation, reexportation, sale or supply, directly or indirectly, from the United States, or by a United States person, (…) of any goods, services, or technology to the Crimea region of Ukraine”.[22] As far as the European Union position is concerned, a pertinent example is given by Council Regulation 1351/2014 of 18 December 2014, which provides for the amendment of a set of restrictions and prohibitions concerning investment services in Crimea, the acquisition or participation in estates or companies located in Crimea, the sale, supply, transport or export of a series of goods and technologies to Crimea, etc. It is to be noted that all these restrictive measures were intended to be “in response to the illegal annexation of Crimea and Sevastopol.”[23]

There seems little doubt that the panoply of measures described summarily above may well fit with the concept of “collective countermeasures”. Insofar as such measures exceed the threshold of mere acts of retorsion, and involve the non-performance of legal obligations due to the wrongdoing state (i.e. individualised measures targeting high-level organs of the Russian government may involve the non-performance of international customary norms concerning the treatment of aliens and foreign state officials), they seem to respond to the typical function assigned to countermeasures, that according to draft Article 49, para. 1, of the ILC Draft Articles on State Responsibility, is to “induce th[e] State [responsible for an internationally wrongful act] to comply with its obligations under Part Two”, namely the obligation of cessation, the obligation to provide adequate assurances of non-repetition, and the obligation to provide full reparation.[24] While the aim of obtaining full reparation in the name and to the benefit of the directly injured state, Ukraine, may still appear remote in the case at hand, it is undeniable that the objective of both US and EU measures has been to obtain the withdrawal or redeployment of Russian troops from Crimea and, subsequent to the Crimean referendum and declaration of independence of 16 March 2014, to avoid the consolidation of the illegal situation created by the Russian military intervention in Crimea, as well as the potential spill-over of the Crimean effect into other parts of Ukrainian territory. Undoubtedly, such objectives may rightly be filed under the categories of cessation and guarantees of non-repetition as codified in the ILC Draft Articles on State Responsibility.[25]

Considered in this light, the Crimean case might be considered a further piece of the practice which, together with recent instances of third-party reactions to egregious violations of erga omnes obligations committed in the context of the crisis in Libya and Syria,[26] contribute to the consolidation of a legal category intentionally left unprejudiced by the ILC in 2001. In light of these recent developments, there is room for the fostering of a suggestion already made some time ago by one commentator, according to whom the practice concerning collective countermeasures “[neither] lacks the required opinion iuris, nor indeed is too selective”.[27]

3. The Crimean case and the unsettled “procedural dimension” to the law of collective countermeasures

In fact, however, the conclusion arrived at above would not seem to settle the whole problem of decentralised responses to violations of erga omnes obligations. In particular, it fails to address the “procedural” questions that lay at the core of the regime of the legal consequences of serious breaches of erga omnes obligations in international law. In fact, the term of art – “collective countermeasures” – may be understood to possess a dual meaning. In a first sense, the expression “collective countermeasures” can be used to convey the idea of an individual reaction to acts offending a shared (collective) interest of the international community, which is protected by a primary norm of international law. What is paramount here is the “communitarian” dimension of the interest sheltered by the primary norm, the violation of which legitimises each and every member of the community to act for its defence. Having this in mind, a countermeasure may also be deemed “collective” if resorted to by one of the “indirectly injured States”,[28] acting alone against the author of the breach of the primary norm protecting the common interest.[29]

However, especially insofar as the secondary rules of international responsibility are concerned, a second dimension to the word “collective” is worth considering. This pertains to the multilateral character of the possible reaction, that is to say the fact that a multitude of states are entitled to react concurrently and cumulatively to the infringement of the common interest underlying the erga omnes obligation. It is rather evident that certain dangers are inherent to the concurrent and cumulative reactions assumed against the lawbreaker by multiple states: such reactions, if uncoordinated, might give rise to abusive, as well as chaotic or disproportionate, consequences. In order to limit and control these unintended effects of collective countermeasures, some form of “procedural” coordination and/or cooperation between the involved players would be commendable.[30]

Of course, the problematic area above was not estranged from the ILC work that led to the adoption of the current text of draft Article 54. In fact, when in its commentary to Article 54 the ILC states that it has not considered it appropriate to supply the Draft Articles on State Responsibility with an explicit provision authorising collective countermeasures, on account of the fact that “States practice is sparse and involves a limited number of States”,[31] it tells only half of the story. The dark side of the tale is that, in 2000, states gathered on the Sixth Committee of the General Assembly were sharply divided as to the fate of an earlier and sensibly different version of Article 54 proposed by the ILC. The text proposed by the ILC in 2000 was more elaborated as it qualified the regime of collective countermeasures under three different aspects. First, the draft proposal provided explicitly for the right of the indirectly injured states to take countermeasures for the protection of a collective interest. Second, it differentiated the regime of third-party reactions to breaches of obligations protecting collective interests: on the one hand providing that, in a case where a specially affected state existed (i.e. in the case of an act of aggression, the victim state), collective countermeasures might be taken solely at the request and in the interest of the injured state, and to the extent that such a state might itself take countermeasures; and on the other hand providing that, in cases where directly injured states were not present (i.e. in cases of massive violations of human rights), third-party countermeasures might be taken in the interests of the beneficiaries of the obligation breached. Third, the provision also established that states entitled to react shall cooperate to ensure fulfilment of the basic substantive requirements laid down for the legality of countermeasures (especially proportionality).[32] However, in the light of the criticisms of such a proposal raised by states,[33] the ILC decided in 2001 to drop its early text, and to retain the “non-prejudice clause” currently embodied in the Draft Articles on State Responsibility.

Besides the controversial solution (or “non-solution”) eventually retained for collective countermeasures, it cannot be underestimated that certain elements of coordination among the States interested in serious violations of international law are required under Article 41 of the ILC Draft Articles on State Responsibility, dealing with the special consequences of grave breaches of peremptory norms. As already mentioned, the latter provision binds states to cooperate by “lawful means” to bring such grave breaches to an end. Again, what “lawful means” are is far from clear, as the point was left unprejudiced by the ILC. However, considering that the aim of cooperation envisaged in paragraph 1 of Article 41 is to put an end to the illegal situation created by the serious breach of a peremptory norm,[34] and that this aim represents the very essence of cessation,[35] one cannot preclude a functional link being established between the obligation of cooperation provided under Article 41 of the ILC Draft and the coordination that would be advisable among non-injured states to ensure the lawfulness of the measures envisaged under Article 54 of the same Draft. In other words, one cannot preclude “lawful measures” provided for under Article 54 overlapping in part with “lawful means” under Article 41, with cooperation among interested states being of the essence under both provisions to ensure the lawfulness (as well as the efficacy) of the third-party reaction to the infringement of collective interests. Unfortunately, the latter conclusion seems to remain largely speculative, in view of the ILC choice to confine to the realm of progressive development of international law an essential part of the regime of third-party reactions to breaches of both peremptory norms and erga omnes obligations.

Be that as it may, and turning back to the Crimean case, we have suggested above that the US and EU practice of restrictive measures adopted against Russia following the Crimea annexation may add some fuel, from a substantive point of view, to the admissibility of collective countermeasures in international law. It can at this juncture be added that certain clues may also be extracted from this practice insofar as the procedural aspects of the regime of collective countermeasures are concerned.

Let us recall that, in the case of Crimea, an instance of aggression and/or armed attack was at stake. Leaving aside here the conceptual distinctions between aggression and armed attack and their implications,[36] it is a fact that, as events involving the (illegal) use of force against a state, both situations legitimise the reaction in individual self-defence by the victim state, and/or the intervention by third states acting in collective self-defence at the request of the victim state. In this respect, it is interesting to note that, in its letter of 13 March 2014 to the President of the Security Council, reproducing an address of the Ukrainian Parliament to the United Nations, Ukraine, claiming to act “in accordance with the right to self-defence acknowledged by Article 51 of the UN Charter”, reserves “the right to request the States and the regional collective security systems to assist in restoring its sovereignty, territorial integrity and inviolability”.[37] As is well known, no individual or collective armed response against Russia occurred in the weeks and months following the annexation of Crimea. If the reasons for this are rather obvious, the invocation of collective self-defence by Ukraine may be read as a step legitimising under international law the adoption by third parties (i.e. the US, EU Member States and other Western States) of non-forcible countermeasures against Russia’s illicit intervention in Crimea. This practice seems to confirm that, above and beyond the obvious dividing line represented by the recourse to armed reaction, a strict analogy does exist between collective self-defence and collective countermeasures – from the point of view of the procedural conditions governing third-party intervention. Under both situations, the appeal of the state that is the direct victim would be legally relevant, if not decisive, for all the other indirectly injured states. As mentioned above, this conclusion was in fact reflected adequately in the draft text on collective countermeasures tabled by the ILC in 2000.[38] It is therefore even more unfortunate that the ILC later discarded a suggestion whose merit would have been to clarify de lege ferenda the role of the prior request of the injured State in the triggering of collective countermeasures.

On the other hand, the Crimean case does not seem to provide any decisive clues as to the other relevant procedural requirement (hypothetically) associated with collective countermeasures, i.e. the engagement of third states to consult and cooperate to ensure that the substantive conditions for resort to countermeasures are fulfilled. In fact, there is no evidence that the different third parties involved have been engaged in any form of reciprocal consultation with a view to coordinating the respective non-forcible measures adopted against Russia after the Crimea annexation. On the contrary, the discussion among the EU Member States that in 2015 accompanied the decision taken within the European Council to renew sanctions against Russia offers a clear sign that the matter of recourse to collective countermeasures remains largely subject to the unilateral assessment of the individual players involved.[39]

In the light of this, it is possible to endorse the general conclusion that, except for the preliminary requirement integrated by the appeal of the directly-injured state, the regime of collective countermeasures does not appear to be so distant from that governing traditional “bilateral” countermeasures. If each of the “third” interested states remains sole judge, not only of its faculté to resort to countermeasures, but also of any assessment regarding the adequacy, the proportionality and the efficacy thereof, it becomes even more difficult to assume that those states might be, as a matter of positive international law, under a (procedural) obligation to coordinate the response to an infringement of a collective interest. In this respect, the choice the ILC made in 2001 to treat the matter as one of progressive development, and to leave it for future developments of international law, may as well be understood today. Unfortunately enough, the Crimean case confirms the condition of relative decentralisation that still dominates the law on State responsibility and the regime of collective responses to violations of erga omnes obligations in international law.

Abstract: The present paper intends to frame the 2014 Russian annexation of Crimea within the regime of the legal consequences of serious breaches of erga omnes (and jus cogens) obligations, as set out in the UN International Law Commission’s 2001 Draft Articles on State Responsibility. It is submitted that the restrictive measures adopted against Russia by some Western States and the European Union may substantiate an egregious case for third party, or “collective”, countermeasures taken by states not directly affected by the violation of erga omnes obligations. In this vein, the Crimean case can contribute to the clarification of one of the topical issues left unanswered under Art. 54 of the ILC Draft, concerning the admissibility of “collective countermeasures” in current international law. If, from a substantive point of view, the right of non-directly-injured States to take countermeasures can be affirmed after the Crimean case, uncertainties still remain as to the procedural aspects of its implementation. In particular, the precedent of Crimea tells very little as to the way of coordinating the different reactions adopted by third parties involved, thereby confirming that decentralisation still dominates the law of State responsibility and the regime of collective responses to violations of erga omnes obligations in international law.

Keywords: State Responsibility; erga omnes obligations; Countermeasures.

[*] Maurizio Arcari, Professor of International Law at the School of Law, University of Milano-Bicocca, Milan, Italy.

[1] On the problem of the so-called “collective countermeasures” in international law, see in the legal literature, i.a.: M. Koskenniemi, Solidarity Measures: State Responsibility as a New International Order?, 72 BYBIL 337 (2001); D. Alland, Countermeasures of General Interest, 13 Eur. J. Int’l L. 1221 (2002); C. Tams, Enforcing Obligations Erga Omnes in International Law, Cambridge University Press, Cambridge: 2005, pp. 198–251; S. Villalpando, L’émergence de la communauté international dans la responsabilité des Etats, Presses Universitaires de France, Paris: 2005, pp. 365–413; C. Hillgruber, The Right of Third States to Take Countermeasures, in: C. Tomuschat, J.-M. Touvenin (eds.), The Fundamental Rules of the International Legal Order, Martinus Nijhoff, Leiden–Boston: 2006, p. 265; M. Dawidowicz, Public Law Enforcement Without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and Their Relationship to the UN Security Council, 77 BYBIL 333 (2007); idem, Third-party Countermeasures: A Progressive Development of International Law? 29 QIL 3 (2016); L.-A. Sicilianos, Countermeasures in Response to Grave Violations of Obligations Owed to the International Community, in: J. Crawford, A. Pellet, S. Olleson (eds.), The Law of International Responsibility, Oxford University Press, Oxford: 2010, p. 1137; P. Picone, Il ruolo dello Stato leso nelle reazioni collettive alle violazioni di obblighi erga omnes, 95 Rivista di Diritto Internazionale 957 (2012); J. Crawford, International Responsibility. The General Part, Cambridge University Press, Cambridge: 2013, pp. 703–706; C. Focarelli, International Law and Third-party Countermeasures in the Age of Global Instant Communication, 29 QIL 17 (2016).

[2] On the legal qualification of Russia’s armed intervention in Crimea see especially A. Tancredi, The Russian Annexation of the Crimea: Questions Relating to the Use of Force, 1 QIL 5 (2014), www.qil-qdi.org [accessed: 29.10.2017]. See also infra, note 36 and accompanying text.

[3] Of course it is possible to question whether sanctions and other restrictive measures adopted within the EU framework can be equated with (collective) countermeasures adopted by third States reacting to breaches of erga omnes obligations. One answer can be that the European Union, as an international organisation endowed with legal personality, is a subject of international law as such injured by the violation of an obligation due to the international community as a whole, and is therefore entitled to invoke the responsibility of the wrongdoer State and all the related consequences; unfortunately, this issue is not covered in either the ILC Draft articles on State Responsibility, or the parallel Draft articles on the Responsibility of International Organizations adopted by the ILC in 2011 (see the text annexed to U.N. doc. A/RES/66/100 of 26 February 2012). An alternative approach would be to maintain that, when the EU adopts responses to breaches of erga omnes obligations, it in fact acts on behalf of its Member States, or that Member States act through the EU because of the specific competences attributed to the organisation. On this question, which will not be explored further in the present context, see P. Palchetti, Reactions by the European Union to Breaches of Erga Omnes Obligations, in: E. Cannizzaro (ed.), The European Union as an Actor in International Relations, Kluwer Law International, The Hague: 2002, pp. 219–230.

[4] See the text of the 2001 ILC Draft Articles and the commentaries there to in 2 YbILC (2001), part two, p. 26ff.; also reprinted in J. Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge University Press, Cambridge: 2002 [hereinafter: Crawford (Articles)].

[5] See the text of Art. 41 and the ILC commentary thereto in Crawford (Articles), supra note 4, pp. 249–253.

[6] See in particular the contribution of Enrico Milano to this volume.

[7] See para. 2 of the commentary to Art. 41, in Crawford (Articles), supra note 4, p. 249: “Cooperation could be organized in the framework of a competent international organization, in particular the United Nations. However, paragraph 1 also envisages the possibility of non-institutionalized cooperation”.

[8] Ibidem.

[9] As is recognised in the ILC commentary to Art. 41, para. 1: “It may be open to question whether general international law at present prescribes a positive duty of cooperation, and paragraph 1 in that respect may reflect the progressive development of international law” (ibidem).

[10] According to Art. 41, para. 3: “This Art. [41] is without prejudice (…) to such further consequences that a breach to which this Chapter [on serious breaches of obligations under peremptory norms of general international law] applies may entail under international law”.

[11] See the text of Art. 48 and the ILC commentary ibidem, pp. 276–280.

[12] See paras. 2 and 10 of the ILC commentary to Art. 48, ibidem, pp. 276, 278.

[13] See para. 12 of the ILC commentary to Art. 48, ibidem, p. 279.

[14] See the text of Art. 54 and the ILC commentary ibidem, pp. 302–305.

[15] See Sicilianos (Countermeasures in Response to Grave Violations), supra note 1, p. 1144.

[16] See Art. 22 of the ILC Draft Articles on State Responsibility, which includes countermeasures taken by an injured State against the State responsible for an internationally wrongful act among the circumstances precluding wrongfulness: text and ILC commentary in Crawford (Articles), supra note 4, pp. 168–169.

[17] See para. 6 the ILC commentary to Art. 54, ibidem, p. 305.

[18] Ibidem.

[19] See e.g. sections 1 and 2 of the US Executive Order 13660 of March 6, 2014, “Blocking Property of Certain Persons Contributing to the Situation in Ukraine”, Federal Register No. 46, vol. 79 (10 March 2014), p. 13493, blocking all property and interests in property that are in the United States, and suspending the entry into the United States, of persons determined to be responsible for or complicit in, or to have engaged in i.a.: “(A) actions or policies that undermine democratic process or institutions in Ukraine; (B) actions or policies that threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine; (C) misappropriation of State assets of Ukraine or of an economically significant entity in Ukraine (…)”. As for the measures adopted by the European Union, see e.g. Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against persons, entities and bodies in view of the situation in Ukraine, whose Art. 1 provides the freezing of all funds and economic resources belonging to, owned, held or controlled “by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine”: Official Journal of the European Union L 66/26 (6 March 2014).

[20] See e.g. EU Council Decision 2014/145/CFSP of 17 March 2014, para. 1 of the Preamble, recalling the strong condemnation held on 6 March 2014 by the Heads of State of Government of the Union’s Member States of the “unprovoked violation of Ukrainian sovereignty and territorial integrity by the Russian Federation”, and Art. 1, providing that EU Member States “shall take measures to prevent the entry into, or transit through, their territories of the natural persons responsible for actions which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine (…)”: in Official Journal of the European Union, L 78/16 (17.3.2014).

[21] See Executive Order 13661 of March 16, 2014, “Blocking Property of Additional Persons Contributing to the Situation in Ukraine”, Federal Register No. 53, vol. 79 (19 March 2014), p. 15535, respectively Section 1 (A) and (C) (1), and the Preamble.

[22] See Executive Order 13685 of December 19, 2014, “Blocking Property of Certain Persons and Prohibiting Certain Transactions With Respect to the Crimea Region of Ukraine”, Federal Register No. 247, vol. 79 (24 December 2014), p. 77357, respectively Preamble and Section 1.

[23] See Council Regulation (EU) No. 1351/2014, amending Regulation EU No 692/2014 concerning restrictive measures in response to the illegal annexation of Crimea and Sevastopol, in Official Journal of the European Union, L 365/46 (19.12.2014).

[24] See the text of Art. 49 and the ILC commentary thereto in Crawford (Articles), supra note 4, pp. 284–287.

[25] On cessation and non-repetition, see the text of Art. 30 of the ILC Draft Articles on State Responsibility and the commentary thereto in Crawford (Articles), supra note 4, pp. 196–200.

[26] For the practice of the EU and its Member States, see e.g. Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya, Official Journal of the European Union L 58/53, 3.3.2011 (expressing strong condemnation for “the violence and use of force against civilians” and deploring “the repression against peaceful demonstrators”); Council Decision 2011/273/CFSP of 9 May 2011, concerning restrictive measures against Syria, Official Journal of the European Union L 121/11, 10.5.2011 (expressing strong condemnation for “the violent repression, including through the use of live ammunition, of peaceful protest in various locations across Syria resulting in death of several demonstrators, wounded persons and arbitrary detentions…”). On this recent practice, see especially Dawidowicz (Third-party Countermeasures), supra note 1, pp. 4–11.

[27] See C. Tams, supra note 1, p. 250, who concludes that “present-day international law recognises a right of all States, irrespective of individual injury, to take countermeasures in response to large-scale or systematic breaches of obligations erga omnes”.

[28] See J. Crawford, Third Report on State Responsibility, U.N. doc. A/CN.4/507/Add. 4 of 4 August 2000, para. 386: “The collective element may also be supplied by the fact that the reacting State is asserting a right to respond in the public interest to a breach of a multilateral obligation to which it is a party, though it is not individually injured by that breach, or that the measures are coordinated by a number of involved States”.

[29] It can be noted that the ILC commentary to Art. 54, among the relevant examples of collective countermeasures, also enumerates cases involving the reaction provided by one (non-injured) state against the state supposed to have committed the violation of an erga omnes obligation: see Crawford (Articles), supra note 4, pp. 302–303, referring to the legislation adopted by the United States in 1978, prohibiting exports to, and imports from, Uganda due to the genocidal policy carried out by the Ugandan government against its population; as well as to the legislation enacted by the US Congress in 1986, suspending landing rights of South African Airlines into US territory, reacting to the South African Government policy of apartheid.

[30] It is worth noting that the Draft Articles on State Responsibility adopted on first reading by the ILC in 1996 allowed any state, injured by a violation of an erga omnes obligation, to take countermeasures on its own account (see in particular Art. 40 of the 1996 Draft Articles, 2 YbILC, part two, pp. 62–63). The question of how this “unlimited and uncoordinated provision for collective countermeasures […] is to be limited and controlled” was raised by the last special rapporteur on State Responsibility, James Crawford, in its 2000 report to the ILC (see Crawford, supra note 28, para. 390).

[31] Supra note 17.

[32] The text of Draft Article 54 adopted provisionally by the ILC at its 2000 session reads as follows: “1. Any State entitled under Article 49, paragraph 1, to invoke the responsibility of a State may take countermeasures at the request and on behalf of any State injured by the breach, to the extent that that State may itself tale countermeasures under this chapter; 2. In the cases referred to in Article 41, any State may take countermeasures, in accordance with the present chapter in the interest of the beneficiaries of the obligation breached; 3. Where more than one State takes countermeasures, the States concerned shall cooperate in order to ensure that the conditions laid down in this chapter for the taking of countermeasures are fulfilled”. See 2 YbILC (2000), part two, pp. 70–71.

[33] For an account of such criticisms, see the Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly during its Forty-fifth Session Prepared by the Secretariat, U.N. doc. A/CN.4/513 of 15 February 2001, paras. 174–182; see also State Responsibility. Comments and Observations Received from Governments, U.N. doc. A/CN.4/515 of 19 March 2001, pp. 87–90 the comments of the Governments of Austria, Japan, The Netherlands, the Republic of Korea and the United Kingdom.

[34] Supra notes 5–8 and accompanying text.

[35] Supra notes 24–25 and accompanying text.

[36] See on this question T. Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice, Cambridge University Press, Cambridge: 2010, pp. 127–129, and the Author’s suggestion that armed attack and aggression represent “two sides of the same coin”. See also M. Arcari, Violazione del divieto di uso della forza, aggressione o attacco armato in relazione all’intervento militare della Russia in Crimea?, 8 Diritti umani e diritto internazionale 473 (2014), pp. 474–477.

[37] See U.N. doc. S/2014/186 of 13 March 2014, p. 2.

[38] See supra note 32 and accompanying text.

[39] The discussion among EU Member States was ignited by Italy’s request that the opportunity to renew sanctions against Russia be reconsidered (see http://europeansanctions.com/2015/12/10/italy-requests-discussion-of-russia-sanctions-before-decision-on-extension/ [accessed:10.08.2017]). Eventually, the Council of the EU decided to extend the duration of restrictive measures against Russia until 31 July 2016 (see Council Decision (CFSP) 2015/2431 of 21 December 2015, amending Council decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, in Official Journal of the European Union, L 334/22(22.12.2015)).The restrictive measures against Russia were further extended until 31 January 2018 with EU Council Decision (CFSP) 2017/1148 of 28 June 2017, amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine, in Official Journal of the European Union, L 166/35 (29.6.2017).

The Legality of the EU Trade Sanctions Imposed on the Russian Federation under WTO Law
Łukasz Gruszczyński, Marcin Menkes[*]

doi: 10.7366/9014Crimea12

Introduction

In response to Russia’s annexation of Crimea and its military involvement in Eastern Ukraine (denied by Russia but accepted as a fact by most Western nations), a number of Western states (including Australia, Canada, Norway and the United States (US)) as well as the European Union (EU) have introduced various sanctions. The sanctions implemented thus far are of a varied nature – some of them consist of travel bans and freezes on the assets of certain individuals connected with the Kremlin, while others prohibit financial transactions with specified individuals and selected Russian companies (mainly from the energy and banking sectors), and still others impose restrictions on trade in arms, dual-use equipment, and oil-industry technologies. These sanctions have been tightened over time, both in terms of their coverage (i.e. more individuals and companies) and intensity (stricter conditions for permissible financial transactions).

Russia’s highest officials, including President Putin and Prime Minister Medvedev, have claimed consistently that Western sanctions are incompatible with World Trade Organization (WTO) law, violating, i.a., the rules on market access and the most favoured nation principle.[1] Russia has not only introduced its own counter-measures (in the form of economic sanctions), but also threatened to initiate formal WTO dispute settlement proceedings against the US and the EU.

The aim of this chapter is to assess the legality of the sanctions thus far imposed on Russia. However, in the light of both space limitations and the complexity of the legal problems tackled, the scope of this study is restricted in two ways.

First, this work only analyses EU measures (and even within this category, only those which have been exerting the greatest impact on the Russian economy). While many of our conclusions are of direct relevance to the assessment of other Western sanctions, some caution is also required, e.g. due to differences in specific commitments made under the General Agreement on Trade in Services (GATS).

Secondly, we do not discuss the legality of the EU actions under the rules on state responsibility (i.e. secondary rules) as our examination is limited to the provisions of WTO law (primary norms). In fact such an approach requires a further caveat. Even though the notion of ‘economic sanctions’ seems ubiquitous in the public discourse on international relations, the use of the term raises legal concerns. Traditionally, the notion of ‘sanctions’ has been reserved for coercive measures adopted by international organisations on the basis of their constituent acts.[2] Although we are focusing on acts of the EU, the analysis under WTO law would apply to state actions in the same way. Hence, our understanding of economic sanctions merely overlaps, to a certain extent, with the classic public international law approach.

Alternatively, economic sanctions could be understood as measures adopted in response to another state’s wrongful act, i.e. in the form of economic countermeasures (reprisals). However, such a reading is equally unsatisfactory for our purposes

Here, it is enough to note that the working thesis of this chapter is that the EU actions were taken in accordance with WTO law, and not that their wrongfulness is precluded, as would be the case with countermeasures (reprisals). Furthermore, under general public international law the EU’s conduct could qualify as retorsions. Accordingly, economic measures assessed in the light of public international law constitute a hybrid of actions or abstentions, different aspects of which may fall under various legal regimes. There is no generic term “economic sanctions” under general public international law, hence the legality of such acts requires a multi-step analysis.[3]

Taking into account the above caveats, this chapter is structured in the following way. The following Part 2 provides a detailed description of the measures introduced by the EU against Russia, and summarises the reasons underpinning their approval. Against this background, Part 3 assesses the legality of the sanctions under two relevant WTO treaties: the General Agreement on Tariffs and Trade of 1994 (GATT 1994) and the GATS. The security exception provided in each agreement is also analysed in detail. The last part offers conclusions and attempts to predict future developments with respect to EU sanctions.

2. Sanctions against the Russian Federation, and the Russian reaction to them

The forging of an EU-wide compromise on the Ukrainian crisis did not ‘come easy’, as the geographical distance from the possible threat and the level of economic ties with Russia weighed differently on each Member State’s foreign policy priorities. Eventually, the EU agreed to adopt a strategy of mounting pressure, which would reflect the progress (or lack thereof) in making Russia comply with its international obligations.

2.1. Diplomatic measures

The first explicit EU disapproval of the developments in Ukraine took the form of diplomatic sanctions. In March 2014 the Foreign Affairs Council condemned Russia’s actions and suspended preparations for the G8 summit planned in Sochi later that year.[4] The bilateral EU-Russian cooperation framework was also suspended, including talks on visa matters; and European states supported the suspension of negotiations on Russia’s accession to the OECD and the International Energy Agency.[5]

2.2. Individual restrictive measures

Also in March, the European Council, while calling on the parties to resolve the crisis through negotiations, initiated preparations to adopt individual measures, including asset freezes and travel bans.[6] In two consecutive steps, sanctions were imposed on 21 Russian and Ukrainian officials,[7] and broadened to include 12 additional persons.[8] The sanctions already turned towards the application of economic pressure as they entailed, alongside travel bans, freezes on assets. The scope of individual measures was broadened by the Foreign Affairs Council in 2015.[9] Leaders also agreed to request that the European Investment Bank suspend new financing operations in Russia.

Given the objective of this chapter, it would be counterproductive to list all the acts imposing individual sanctions. Suffice it to say that, as of February 2016, 149 persons and 37 entities were on sanctions lists. The application of these measures has been prolonged until 15 March 2016.[10]

2.3. Sanctions adopted in response to the annexation of Crimea and Sevastopol

As the situation continued to deteriorate, particular measures were taken in response to the annexation of Crimea and Sevastopol, which was not recognised, and was condemned roundly and officially by the EU.[11] In June 2014, the Foreign Affairs Council imposed an embargo on the import of goods originating in Crimea and/or Sevastopol.[12] The only exception applied to goods examined by the Ukrainian authorities and granted a certificate of origin by the Government of Ukraine. At the same time, the Council decided to sign the EU-Ukraine Association Agreement, including a Deep and Comprehensive Free Trade Area (DCFTA).[13]

These measures were strengthened by the end of the year, as the European Union imposed a ban on investments in the area[14], and later prolonged it through to June 2016[15] and beyond.

2.4. Economic sanctions

From the WTO law perspective, the most interesting issues concern restrictive measures imposed against certain sectors of the Russian economy. The Council imposed an export embargo on dual-use (i.e. civil and military) goods and technology for military use or military end-users in Russia with respect to exports based on agreements concluded since 1 August 2014.[16] An embargo on the export of military goods and technologies intended for use by Russian entities or in Russia was imposed as well.[17] The EU also decided to adopt a general policy of refusing to grant export authorisations with respect to technologies pertaining to deep-water oil exploration and production, Arctic oil exploration and production, or shale oil projects in Russia.[18]

In addition to trade measures, the EU financial sanctions prohibited the direct or indirect purchase, sale or provision of brokering services (subsequently referred to as investment services), assistance in the issuance of, or otherwise dealing with, transferable securities and money-market instruments with a maturity date exceeding 90 days, issued directly or indirectly, by:

– entities promoting the Russian economy and investments established in Russia with over 50% public ownership or control (five banks were listed),

– other legal entities established outside the Union (emphasis by the authors) and legal representatives thereof, whose majority shareholder was one of the listed Russian banks.[19]

One month later, the Council broadened the scope of the embargo on dual-use materials by prohibiting corresponding transactions with a number of natural and legal persons.[20] Measures against the oil sector and the financial embargo were also strengthened (e.g. the maturity threshold was decreased to 30 days, and new entities were added to the list).

As new hope arose with the Minsk Agreements (I and II), the European Council decided to tie sectoral economic sanctions against Russia to progress in the Minsk Process (as implementation of Agreement II was supposed to take place by 31 December 2015).[21] Accordingly, sanctions that were originally designed to last until 31 July were prolonged until 31 January 2016,[22] and then until 31 July 2016 and beyond.[23]

3. Assessment of sanctions under WTO law

As it was already mentioned, different top Russian officials have consistently claimed that Western economic sanctions breach various WTO rules. Their legality was also discussed at the WTO after the issue was raised formally by the Russian Delegation at the meetings of both the Council for Trade in Goods (as a potential violation of the GATT 1994) and the Council for Trade in Services (with respect to a possible GATS violation).[24] Nevertheless, no formal dispute settlement procedure has been initiated by Russia up to now.

3.1. The EU sanctions under GATT 1994

Three categories of sanctions appear to fall within the ambit of GATT 1994 (as they relate to the trade in goods): (i) an embargo on the import and export of arms and related materials, (ii) a prohibition on exports of certain dual-use products, and (iii) export restrictions on certain equipment related to the energy sector (combined with the automatic denial of authorisation for deep-water oil exploration and production, Arctic exploration, and shale oil projects). Note that GATT 1994, unlike some other international trade treaties, does not exclude military equipment and related goods from its scope.[25]

All these measures can be assessed in the context of at least two of the GATT 1994 provisions: the prohibition on quantitative restrictions (Art. XI); and the most-favoured nation principle (Art. I).[26] As far as the first provision is concerned, its plain wording indicates that it covers restrictions imposed, not only on imports, but also on exports. It is also clear that an export embargo, for example like the one applied by the EU on dual-use products, falls within its scope – the provision explicitly identifies export prohibition as an illegal quantitative restriction. Although the export of energy-related equipment is not prohibited, but only made subject to authorisation, this also should be regarded as a form of prohibited quantitative restriction, because this requirement operates as a de facto export ban.[27]

The EU sanctions may also violate Art. I,[28] which prohibits discrimination between products imported from or exported to different WTO Members. The scope of this provision is broad and includes, apart from customs duties and charges, all law, regulations and requirements that affect sales. In the case analysed here there is clear discrimination. Certain goods cannot be exported to Russia, while no such restrictions are imposed on their export to other WTO Members.

3.2. The EU sanctions under the GATS

Assessing the legality of the EU sanctions under the GATS is a more demanding task than that relating to GATT 1994. Note that certain disciplines provided by the GATS (e.g. national treatment and market-access obligations) apply only if a WTO Member has made a specific commitment with respect to a particular sector. Therefore, it is not enough to look solely at the text of the GATS, as reference also needs to be made to Members’ schedules of commitments. Moreover, the existing jurisprudence is rather limited, and leaves many important questions unanswered.

Potentially three measures may be covered by the agreement: (i) travel bans for certain individuals, (ii) asset freezes for listed individuals, groups and legal entities, and (iii) restrictions on financial transactions involving pre-specified Russian companies. As far as the first two measures are concerned, it should be noted that the GATS sets standards for measures affecting trade in services (Art. I of the GATS). Consequently, if an individual or a legal entity cannot be qualified as a service supplier or a recipient (or a person acting therefor) the agreement will not apply. A quick look at the EU list of persons and entities subject to EU restrictive measures shows that it mostly covers high governmental officials or other people connected with actions against Ukraine’s territorial integrity (e.g. leaders of the Donetsk People’s Republic), who therefore remain outside the scope of the GATS. Although the list also includes some commercial entities, such as the Russian National Commercial Bank (a bank which is based in Moscow but currently operates in Crimea only), as well as businessmen such as Mr. Arkady Rotenberg (a chair and owner of various Russian companies also operating in the EU), these are the exceptions of limited economic importance.[29] Therefore those restrictive measures are not analysed further in this chapter.[30]

Given their economic impact, restrictions on certain financial transactions deserve some additional attention. Depending on how one classifies commercial activity consisting of selling bonds, equity or similar financial instruments (supply or receipt of services), these restrictions could be considered a violation of the most favoured nation principle provided for in Art. II of the GATS (if qualified as a supply of services, a view to which we subscribe).[31] In particular, Russia can claim that its service suppliers included on the EU lists are treated less favourably than service suppliers from any other country (because there are no such restrictions on them as they render the services identified above). Alternatively, one may argue that measures relating only to the (domestic) consumer/recipient of a service, i.e. the potential purchaser in the EU of Russian-issued bonds, are covered as well, insofar as services or service suppliers of other Members are affected.[32]

It is not clear whether the restrictions on the provision of loans (or other financial services not discussed above) to the listed Russian entities are incompatible with GATS market-access obligations (Art. XVI). One may argue that they impose de facto “ceilings on the supplies originating from domestically established foreign suppliers that are destined for users abroad”[33] (e.g. foreign-controlled EU banks providing loan services to the listed Russian firms), which would constitute a trade barrier prohibited by Art. XVI:2 of the GATS (unless explicitly provided in a relevant schedule of commitments, which is not the case for the EU schedule).[34] On the other hand, it is possible to argue that the relevant EU sanctions constitute limitations, neither on the total value of service transactions nor on service operations (as de facto restrictions do not qualify as prohibited market-access barriers). Since there is no case law on this issue, it is difficult to predict what the approach of the WTO dispute settlement bodies would be.

Last but not least, the EU restrictions on financial transactions may also violate Art. VI of the GATS – a provision which requires reasonable, objective and impartial administration of measures of general application that affect trade in services. In particular, it may be argued that the EU measures were not applied in a transparent manner or/and were discriminatory and arbitrary (e.g. with respect to the criteria used for the selection of listed entities).

Without settling the above controversies, one may safely conclude that there is at least a risk of some of the EU sanctions being regarded as incompatible with the GATS.

3.3. Justification of the EU sanctions under the WTO security exceptions

However, the identification of violations of specific GATT and GATS provisions does not exhaust the analysis of the EU measures under international trade rules. Both agreements include so-called ‘security exception clauses’, which allow Members to justify actions otherwise inconsistent with the WTO regime. Since Art. XIV bis of the GATS mirrors the GATT provision (i.e. Art. XXI),[35] at least with respect to those parts of relevance to this chapter, only the latter will be analysed here. However, it needs to be noted that our conclusions are the same with respect to the two agreements.

Art. XXI GATT specifically provides that:

Nothing in this Agreement shall be construed

a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or

b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests (i) relating to its fissionable materials or the materials from which they are derived; (ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; (iii) taken in time of war or other emergency in international relations; or

c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

Clearly subparagraph (b) is the most relevant for our purposes. Subparagraph (a) relates to a different issue, and with respect to subparagraph (c), the fact of the Russian Federation being a Permanent Member of the Security Council ensures that the latter organ has obviously not adopted any Resolution condemning, or even offering legal qualification of, the Russian aggression perpetrated against Ukraine. However, it is important to note that, due to the incapacity of the Council to react to this threat to international peace and security, the General Assembly (GA) adopted Resolution 68/262,[36] by virtue of which it called upon states to refrain from actions aimed at the disruption of the national unity and territorial integrity of Ukraine, including any attempts to modify Ukraine’s borders through the threat or use of force or other unlawful means. Furthermore, the GA “welcomed” the efforts of international and regional organisations to assist Ukraine in protecting the rights of all persons in Ukraine. Accordingly, while in the following part we focus on legal defences under WTO law, it needs to be kept in mind that, should such arguments prove insufficient, the relevance and importance of the GA’s Resolution should not be underestimated, even without recourse to Uniting for Peace.[37]

Art. XXI(b) consists of two elements: an introductory clause and an exhaustive list of situations that may serve as a possible justification for exceptions. The introductory clause makes it clear that the security exception has a wide scope of application and is able to justify a “violation” of any provision of GATT (“Nothing in this Agreement…”). Neither are any limits set on the types of actions that may be taken by a WTO Member under subparagraph (b) (‘any action’). In other words, Members can adopt a great variety of trade restrictive measures if motivated by security concerns (e.g. import and export bans, quotas, export licences, restrictions on transit). What may be problematic is how the normative content of subsequent conditions – in particular “necessity”,[38] “essential national security interests”, (subparagraph (b)(ii)) and “emergency in international relations” (subparagraph (b)(iii)) – is to be understood. On the other hand, it would seem to be relatively easy to show that the EU export and import ban on arms and related materials can qualify under subparagraphs (b)(i) or (b)(ii), while restrictions on dual-use items will either fall under the same subparagraphs or will be caught by the residual category of measures taken ‘in time of war or other emergency in international relations.’

The existing literature is divided over the meaning of these conditions. While most (if not all) authors agree that “necessity” in Art. XXI(b), unlike in Art. XX, needs to be construed as a subjective category (“it [a WTO Member] considers necessary for the protection of …”), they disagree about the consequences of such a classification. Some who rely on textual (“it considers…”) or teleological arguments, claim that a decision regarding the necessity of a measure is left entirely to a WTO Member, with a panel being prohibited from judging this condition (because the WTO is competent to decide on economic, but not purely political, questions). This self-judging character also extends to the second condition (on the textual level, since the expression ‘it considers’ is regarded as relating to both necessity and national security interests).[39] However, others argue that, under the ‘necessity’ requirement, WTO Members enjoy a very wide, but not unlimited, discretion, because a panel can always check whether a contested action does or does not constitute an abuse of a right (i.e. WTO Members are generally required to act in conformity with the principle of good faith, with ‘abuse of a right’ forming a part of that concept).[40] Some believe that the second condition (national security) should be approached in the same way,[41] while other scholars think that it may be assessed by a panel in a standard way, i.e. whether a particular situation indeed involves essential national security interests.[42] At the same time, it is submitted that this category is broad and covers, not only military security, but also “civilian telecommunication infrastructure, environmental concerns and financial/banking interests”.[43] Economic security, however, does not qualify.[44]

The same is true with respect to the expression “emergency in international relations”. Some authors believe that this condition is also subject to self-judging and prevents any review by a panel.[45] Others disagree, and again see this phrase as calling for an objective assessment by WTO dispute-settlement bodies. These authors highlight that such an emergency needs to reach a certain level of gravity. In this context, they refer to the literal meaning of the term (“emergency” indicates something serious), and as well make the contextual argument by pointing out that the relevant paragraph starts with the word “war”, which is then followed by the phrase “or other” (which would seem to require that an “emergency” have a comparable level of seriousness).[46]

At the same time, many of the scholars who see Art. XXI(b) as reviewable advocate for a deferential standard of review, which would guarantee that a wide margin of discretion is enjoyed by WTO Members,[47] with respect to both their determining of essential security interests and the existence of a state of emergency in international relations.[48] Thus a panel could enquire whether a WTO Member has rational grounds to consider a particular situation as involving its essential security interests or relating to an emergency in international relations, but not determine these issues de novo, i.e. substitute with its own judgment. Deference is justified by the character of the provision, which is predominantly concerned with political, rather than economic, questions, and as such should be interpreted on a case-by-case basis, somewhat similarly to the margin of appreciation doctrine developed by the European Court of Human Rights.

Unfortunately, there is no case law which would settle this issue conclusively. Although the security exception has been referred to by the GATT Parties/WTO Members on several occasions, it has never been addressed by a WTO panel or the Appellate Body (except in one GATT report which was never actually adopted). At the same time, the practice of GATT parties/WTO Members, which constitutes an element which must be taken into account when interpreting a treaty,[49] is very limited and rather contradictory (and as a consequence can hardly be regarded as the “practice of parties to a treaty”). As early as in the 1940s, Art. XXI was referred to by the US in order to justify its export controls (in the form of export licences) on certain dual-use products destined for Czechoslovakia, among other countries. Although the contracting parties eventually shared the US position, their decision was primarily of a diplomatic, rather than legal character and has limited value for the current discussion.[50] The exception was also referred to by Ghana in the context of the discussion over Portugal’s accession to GATT (in 1971). When explaining its embargo on Portuguese products,[51] Ghana stated that, “under … Article [XXI], each contracting party was the sole judge of what was necessary in its essential security interest”. Ghana added that such interests might be threatened, not only by actual, but also by potential danger (in this case, peace on the African continent).[52] At the end of the day, however, Ghana did not base its decision on Art. XXI, but relied on Art. XXXV (i.e. non-application of GATT between particular contracting parties). For this reason, the precedential force of this case is also limited.

A similar stance was taken by the European Communities (EC), Australia, Canada and the US in 1982, when defending their trade sanctions against Argentina (i.e. a comprehensive import embargo), in the wake of the Argentinean invasion and occupation of the Falklands islands. E.g. the EC stated that it “had taken certain measures on the basis of their inherent rights, of which Article XXI of the General Agreement was a reflection. The exercise of these rights constituted a general exception, and required neither notification, justification nor approval, a procedure confirmed by thirty-five years of implementation of the General Agreement [sic!]. … [T]his procedure showed that every contracting party was – in the last resort – the judge of its exercise of these rights”.[53] Not only Argentina, but also several other Parties argued against such a view.[54] Although no panel was eventually formed, the GATT contracting parties decided to adopt a special decision on Art. XXI,[55] which required that any party resorting to trade-related security measures should inform all other parties, albeit with no special procedure for this established. Except for this procedural obligation, the decision remained silent on the substantive content of the conditions contained in the security exception. It only confirmed, but again without details, that all affected contracting parties shall retain their rights under GATT.

A defence based on the security exception was also raised in the dispute between Nicaragua and the US following the comprehensive American embargo introduced to undermine the Sandinista government. This dispute actually led to the establishment of a panel, but, at the request of the US, its terms of reference excluded any examination of the validity of the invocation of Art. XXI(b)(iii) of GATT.[56] Despite the panel’s limited mandate, during the proceeding the US stressed the self-judging character of the clause, by observing that the formulation of the provision left the validity of the security justification to the exclusive judgement of a party taking an action. Although the panel did not rule on this issue, it remained sceptical, and asked the rhetorical question: “[i]f it were accepted that the interpretation of Article XXI was reserved entirely to the contracting party invoking it, how could the Contracting Parties ensure that this general exception to all obligations under the General Agreement is not invoked excessively or for purposes other than those set out in this provision?”.[57] It should be noted that the report was never adopted by the GATT Contracting Parties.

The issue of the security exception was also touched upon at the WTO. In the case of United States – The Cuban Liberty and Democratic Solidarity Act, the dispute concerned a secondary trade ban on all entities engaged in commercial activity with Cuba (whenever American property nationalised by the Castro government was involved). The EC, whose companies were affected by the ban, requested consultation with the US. During the debate at the meeting of the Dispute Settlement Body, the US stressed that “certain measures… had been expressly justified by the United States under GATT 1947 as measures taken in pursuit of [its] essential security interests”.[58] This reminder suggested indirectly that such measures could not be reviewed by a WTO panel. The dispute was eventually resolved by way of bilateral negotiations; hence a panel did not have a chance to examine the measure. The second case in which reference to the security exception was made was Nicaragua – Imports from Honduras and Colombia.[59] Nicaragua argued that Art. XXI:(b)(iii) “confirmed the inherent right of a State to protect its security, and constituted an exception to the multilateral trade rules” and that therefore it was outside the jurisdiction of the panel.[60] The panel was established but was never composed.

No more conclusive is the preparatory work also considered a relevant element of treaty interpretation under Art. 32 of the VCLT. As noted by Pickett and Lux, “it … indicates disagreement and confusion as to how to balance these two interests [national security and prevention of abuses – authors] in the event of a dispute”.[61] Therefore it cannot provide any additional help as the relevant provision(s) is/are interpreted.

So what conclusions can be drawn from the above discussion, when it comes to the analysis of the legality of the EU’s sanctions on Russia? If one subscribes to the position that Art. XXI(b) is an entirely self-judging provision, then a simple invocation of the clause by the EU would suffice to justify its measures. However, it seems to us that it is more probable (and correct) to see a panel engaging in some kind of review of the contested measures.[62] Note that giving WTO Members a carte blanche with respect to any security-motivated action would undermine the stability and predictability of the whole system.[63] Although in the past WTO Members have shown surprising self-restraint in this area (by neither invoking the exception nor challenging such measures), this practice alone is insufficient to safeguard against possible abuses. Moreover the Appellate Body has made it clear on several occasions that, as WTO exceptions are interpreted, “a balance must be struck between the right of a Member to invoke an exception … and the duty of that same Member to respect the treaty rights of the other Members. To permit one Member to abuse or misuse its right to invoke an exception would be effectively to allow that Member to degrade its own treaty obligations, as well as to devalue the treaty rights of other Members. If the abuse or misuse is sufficiently grave or extensive, the Member, in effect, reduces its treaty obligation to a merely facultative one and dissolves its juridical character, and, in so doing, negates altogether the treaty rights of other Members”.[64] This balance can only be guaranteed if some form of review of a contested measure is available to a panel.[65]

We agree with the majority of scholars that an assessment of necessity calls only for a good-faith review (because it is qualified by the subjective condition “it considers”). At the same time, we do not wish to settle the debate over the nature of the review that should be applied by WTO dispute-settlement bodies when examining the existence of essential security interests (i.e. only a good-faith review or some form of (deferential) assessment[66]). As will be shown below, the EU’s actions should pass this test even if some more-demanding standard is applied. The same is true with respect to the third condition. Arguably the EU has sufficiently strong arguments to show that there is a real emergency in international relations (in the event a panel decides to go beyond a review of good faith).

The task of a panel under a good-faith review is very limited. According to the Appellate Body, WTO Members are prohibited from abusive exercise of their rights provided for by a treaty. In other words those rights need to be exercised bona fide or reasonably.[67] At the same time, WTO dispute-settlement bodies have held consistently that there is a presumption of states acting in good faith. This would mean that the burden of proof, traditionally borne under any WTO exception by a defendant (i.e. in this case the EU), would switch in the context of the first condition to the complainant (i.e. Russia).[68] At the same time, it is not clear what Russia would need to show to establish the existence of abus de droit. If it is a subjective intent on the part of the EU (i.e. to evade WTO obligations under the guise of the security exception), this task will be extremely difficult.[69] If instead an assessment of some objective elements is required, Russia would still need to prove that the EU could not have considered rationally (on the basis of facts available to it) that its measures were warranted by the factual circumstances in eastern and southern Ukraine; and nor could the EU have considered its measures able to contribute to its national security. Taking into account the seriousness of the developments in Ukraine, the gradual strengthening of sanctions (from very light restrictions to stronger, but still selective, measures), their design (as they are aimed at those entities closely connected to the Kremlin, or cover goods that have either a military or strategic potential), and the openness of the EU to terminate them once the conditions of the Minsk Agreements are fulfilled, the task would seem to be a very difficult, if not impossible, one.

A number of different factors should be taken account of in analysing whether the EU could have rationally considered its essential security interests to be at stake. It must be noted that Russia’s actions are widely perceived as violating various norms of public international law, particularly those rules that prohibit aggression and other actions against the territorial integrity and sovereignty of another state.[70] The redrawing of European borders in violation of international law norms creates a dangerous (geo-)political precedent for the future (especially if one considers the turbulent European history of the 20th century). Therefore it may be persuasively argued that the new aggressive approach employed by Russia could, if not opposed by other countries, be repeated with respect to other countries and threaten the military security of Europe. This risk is particularly high for the former Soviet Republics (i.e. the newly independent countries which emerged after the dissolution of the Soviet Union), with these being considered by many high Russian officials as exclusively within the Russian sphere of influence as part of the so-called “near-abroad”.[71] Three of these countries (namely Lithuania, Latvia and Estonia) are members of the EU. The large number of incidents involving Russian troops at the borders of the Baltic Republics following the Ukrainian crisis only serve to suggest that the existing threats are not purely theoretical.[72] Note also that this concern was mentioned explicitly by the EU in one of its statements: “[t]he illegal annexation of Crimea and Sevastopol by the Russian Federation is … a direct challenge to international security, with grave implications for the international legal order”.[73]

Another important factor suggesting that the EU’s essential security interests are at stake is the geographical proximity of Russia and Ukraine (with both actually bordering on to the EU). A full-scale Russian invasion of Ukraine would not only change the entire geopolitical situation in the Central Eastern European region, but it would also produce a number of direct and imminent threats to the EU’s security interests (e.g. increased inflow of refugees from Ukraine). While all these situations involve potential, rather than actual threats, Art. XXI of GATT implies that WTO Members have the power to take preventive actions (therefore potential threats may also be considered essential security interests).[74] At the same time, the shooting down of Flight MH17 by Russian-sponsored rebels[75] shows that actual security threats are already involved. Note further that most of MH17’s 298 casualties were citizens of the EU Member States.

Finally, it would also be no problem to show that the various events occurring in Ukraine amount to an emergency in international relations. This is evidenced by a number of statements issued by different international organisations (a type of proof that is typically accepted by the WTO dispute-settlement bodies). Alongside the above-mentioned GA Resolution, one could refer, e.g. to the statement of the Parliamentary Assembly of the Council of Europe, which in April 2014 declared that “the actions of the Russian Federation leading up to the annexation of Crimea, and in particular the military occupation of the Ukrainian territory and the threat of the use of military force, the recognition of the results of the illegal so-called referendum and subsequent annexation of Crimea into the Russian Federation constitute … a grave violation of international law, including of the United Nations Charter and the … Helsinki Final Act. The launch of military action by Russia was in violation of a memorandum signed between Russia, the United States and the United Kingdom, and Ukraine, Belarus and Kazakhstan in 1994, which undermines the trust in other international instruments” (para. 3).[76] The Assembly also observed that Russia rejected the diplomatic efforts of the international community aimed at de-escalation of the situation (para. 5) and that by its violation of the “sovereignty and territorial integrity of Ukraine, Russia has created a threat to stability and peace in Europe” (para. 6). Particular attention was focused on the unanimous vote in the Council of the Russian Federation authorising the use of military force in Ukraine, the approval of constitutional amendments allowing for the annexation of Crimea, and the ratification of the illegal treaty on unification (para. 7). For all these reasons, the Parliamentary Assembly suspended the voting rights of the Russian delegation and its representation in leading bodies of the Assembly, as well as its participation in election observation missions. The Committee of Ministers also condemned the Russian actions.[77]

In March 2014, the OECD suspended accession negotiations with Russia and decided to strengthen cooperation with Ukraine.[78] Talks on membership have not been relaunched since.

At the same time, the North Atlantic Council condemned Russia’s military actions in Ukraine as being in violation of international law and contravening the principles of the NATO-Russia Council and the Partnership for Peace[79], as well as the “both illegal and illegitimate” referendum in Crimea.[80] In April, the NATO-Russia Council and other forms of cooperation were suspended.[81]

While it goes beyond the scope of this article to list all the statements issued by individual states, one should recall here that UN GA Resolution 68/262 was adopted with 100 votes in favour, 11 against and 58 abstentions. Most interestingly, the statements by the countries opposing the Resolution tended to stress that the current crisis should be resolved in another fashion, without questioning its emergency nature.[82]

Conclusions

Due to the lack of relevant WTO jurisprudence, it is difficult to determine with certainty the legality of the EU sanctions imposed on Russia. Nevertheless, it seems that the position of the Union under WTO law is relatively strong. While some of its trade-restrictive measures may prima facie violate various provisions of GATT and the GATS (e.g. the most-favoured nation principle, market access, and the prohibition on quantitative restrictions), they seem to be justified by the security exceptions provided for in both agreements.

Considering the above, one may try to project possible scenarios. Due to its relatively small chances of prevailing in a dispute, Russia is not likely to initiate a formal dispute-settlement process. The numerous statements made by top Russian officials should be regarded as political in nature, rather than as legal threats. A formal proceeding, at least in the current state of affairs, is also improbable because of specific features of the WTO dispute-settlement system. WTO law does not provide for retroactive compensation to a complainant. This means that, even in the unlikely event of Russia being successful in a WTO dispute-settlement proceeding, the EU would only be obliged to withdraw or modify its measures, and not to pay compensation for damages suffered. If one adds to this the fact that the whole process may last two or more years (including a possible appeal and other ancillary proceedings), there are limited incentives for Russia to actually initiate a proceeding, and its use of counter-sanctions (as currently) seems a more likely path. Together with this course of action, the more-probable scenario is that Russia will try to break solidarity among the EU Members States with respect to the upholding of sanctions.

Naturally, the above prediction would need to be changed drastically if a serious escalation of Russian military activities in eastern Ukraine were to take place. In such a case, EU sanctions might even be strengthened, and Russia might then decide to challenge them at the WTO – not so much because of the prospects of winning, but rather for political reasons (to show itself a strong player at the international level).

Abstract: The aim of this chapter is to assess the legality of the EU sanctions on Russia under WTO law. In this context, the authors claim, after providing a detailed description of the measures introduced by the EU, that some of the sanctions either fall outside the scope of WTO law (i.e. the travel bans and asset freezes of certain individuals that cannot be considered service providers) or are related to aspects which are not covered by specific commitments made by the EU (i.e. certain restrictions on financial transactions). Consequently, they cannot be deemed to constitute a breach of the General Agreement on Trade in Services. The authors also argue that those measures which fall within the scope of WTO law (e.g. bans on sale of dual-use equipment and oil industry technologies) and which may be regarded as incompatible with certain obligations (e.g. prohibition of quantitative restrictions introduced by Art. XI of the General Agreement on Tariffs and Trade), can still benefit from the justification provided by the security exceptions included in respective WTO agreements. In this context, the authors analyse the specific conditions envisaged by such exceptions. Special attention is paid to the meaning of two elements: (i) the clause requiring a sanction to be an ‘action which [a WTO Member] considers necessary for the protection of its essential security interests’ and (ii) the clause speaking about measures ‘taken in time of war or other emergency in international relations’. The authors observe that due to a lack of relevant WTO jurisprudence, it is difficult to ascertain the precise standards required by WTO law. Nevertheless, they come to the conclusion, by relying on the interpretation methods traditionally employed by the WTO dispute settlement bodies (textual, systemic and teleological interpretation as provided by Art. 31 of the Vienna Convention on the Law of Treaties supplemented by a reference to the preparatory work) and referring to the practice of other international courts, that the relevant provisions grant wide discretion to WTO Members. On that basis, the authors argue that specific sanctions imposed by the EU should be regarded as justified under WTO law.

Keywords: EU, GATS, GATT, Russia, sanctions, security exception, Ukraine, WTO.

[*] Łukasz Gruszczyński, Associate Professor at the Institute of Law Studies of the Polish Academy of Sciences (Warsaw, Poland); Senior Researcher at the Hungarian Academy of Sciences Centre for Social Sciences – Institute for Legal Studies and Visiting Professor (2016–2017) at the National University of Public Service (Budapest, Hungary). Marcin Menkes, Assistant Professor at the Warsaw School of Economics.

[1] Cf. e.g. Sanctions against Russia ‘violate’ core principles of WTO – Putin, RT, 18 September 2014, https://www.rt.com/business/188772-sanctions-russia-protect-economy-putin/; Russia mulls lawsuit against U.S. in WTO over sanctions, Reuters, 16 April 2014, http://www.reuters.com/article/us-russia-banks-wto-idUSBREA3F0PZ20140416 (citing the Russian Economy Minister Alexei Ulyukayev) [both accessed: 03.07.2017].

[2] International Law Commission, Draft Articles on Responsibility for Internationally Wrongful Acts with commentaries, United Nations 2008, Commentary to Art. 22, pp. 75–76.

[3] Cf. generally M. Menkes, Stosowanie sankcji gospodarczych – analiza prawnomiędzynarodowa, Dom Wydawniczy Duet, Warszawa: 2011.

[4] Council of the European Union, Foreign Affairs Council Meeting. Council Conclusions on Ukraine, Meeting No. 3305 Brussels, 3 March 2014.

[5] European Union, EU sanctions against Russia over Ukraine crisis, http://bit.ly/19wwzP3 [accessed: 03.07.2017] followed by Council Regulation (EU) No. 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, OJ L 66/1, 6.3.2014.

[6] European Council, Statement of the Heads of State or Government on Ukraine, Brussels, 3 March 2014.

[7] Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ L 78/16 17.3.2014), followed by Council Regulation (EU) No. 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, OJ L 78/6, 17.3.2014.

[8] Council Implementing Regulation (EU) No. 284/2014 of 21 March 2014 implementing Regulation (EU) No. 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, OJ L 86/27, 21.3.2014.

[9] Council Implementing Regulation (EU) No 81/2014 of 14 April 2014 implementing Regulation (EU) No. 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ L 111/33, 15.4.2014).

[10] Council Decision (CFSP) 2015/1524 of 14 September 2015 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, OJ L 239/157, 15.9.2015. It is worth adding that, as of 3 July 2017 the measures are still in force; they have been prolonged on the basis of the subsequent Council decisions.

[11] Council conclusions on Ukraine, Brussels, 17 March 2014 followed by European Council, European Council meeting (19 and 20 March 2015) – Conclusions, Brussels, 20 March 2015.

[12] Council Decision 2014/386/CFSP of 23 June 2014 concerning restrictions on goods originating in Crimea or Sevastopol, in response to the illegal annexation of Crimea and Sevastopol (OJ L 183/70, 24.6.2014) followed by Council Regulation (EU) No 692/2014 of 23 June 2014 concerning restrictions on the import into the Union of goods originating in Crimea or Sevastopol, in response to the illegal annexation of Crimea and Sevastopol (OJ L 183/9, 24.6.2014).

[13] Council of the European Union, Technical preparations for signing the Association Agreement with Ukraine finalised, Luxembourg, 23 June 2014 (11067/14).

[14] Council Regulation (EU) No. 1351/2014 of 18 December 2014 amending Regulation (EU) No. 692/2014 concerning restrictive measures in response to the illegal annexation of Crimea and Sevastopol, OJ L 365/46, 19.12.2014.

[15] Council Decision (EU) No. 2015/959 of 19 June 2015 amending Decision 2014/386/CFSP concerning restrictive measures in response to the illegal annexation of Crimea and Sevastopol, OJ L 156/25, 20.6.2015.

[16] Council Decision (EU) No. 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ L 229/13, 31.7.2014) followed by Council Regulation (EU) No. 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine OJ L 229/1, 31.7.2014. In accordance with Art. 2 of the Regulation, an authorisation for exports in the discharge of obligations undertaken before 1 August 2014 can be granted.

[17] Ibidem, Art. 4.

[18] Ibidem, Art. 3.

[19] Ibidem, Art. 5.

[20] Council Regulation (EU) No. 960/2014 of 8 September 2014 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ L 271/3, 12.9.2014.

[21] European Council Conclusions on external relations (19 March 2015), Press release 134/15, 19.3.2015.

[22] Council Decision (CFSP) 2015/971 of 22 June 2015 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ L 157/50, 23.6.2015.

[23] Council Decision (CFSP) 2015/2431 of 21 December 2015 amending Council Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ L 334/22, 22.12.2015; Council Decision (CFSP) 2016/1071 of 1 July 2016 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ L 178, 2.7.2016, Council Decision (CFSP) 2016/2315 of 19 December 2016 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ L 345, 20.12.2016; Council Decision (CFSP) 2017/1148 of 28 June 2017 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ L 166, 29.6.2017.

[24] Cf. Council for Trade in Services, Report of the meeting held on 20 June 2014, Note by the Secretariat, 15 August 2014, S/C/M/118, paras. 7.1-7.12; Council for Trade in Goods, Report of the meeting held on 19 June 2014, Note by the Secretariat, 31 October 2014, G/C/M/119, paras. 9.1-9.7. Interestingly, during the meetings of the Committees, Russia never explicitly pointed to the EU measures as being incompatible with the WTO provisions (as opposed to the US, Canadian and Australian sanctions).

[25] Jurisdiction of WTO dispute settlement bodies over the claims relating to various restrictions on trade with Crimea (with respect to both goods and services) is more problematic in this regard. Since the initial declaration of independence and subsequent accession of the Peninsula to the Russian Federation should be regarded as an illegal annexation (which is generally not recognised by the international community), any claim in the WTO dispute settlement system regarding these restrictions will arguably be regarded as inadmissible.

[26] Art. XI:1 specifically provides that “No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party”.

[27] Similarly, Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished Leather, WT/DS155/R and Corr.1, adopted 16 February 2001, para. 11.17.

[28] The relationship between Arts. I and XI of GATT 1994 is not entirely clear (i.e. whether concurrent or cumulative application applies). Due to the broad formulation of Art. I, it seems that the provision can also apply to quantitative restrictions (but cf. Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R and Corr. 1, adopted 6 November 1998, as modified by Appellate Body Report WT/DS58/AB/R, para. 7.22 where the panel, exercising judicial economy, decided not to review the measure under Art. I after finding a violation of Art. XI).

[29] However, it should be noted that there is no de minimis standard in the GATS. In other words, a measure with a very limited economic impact can still constitute a violation of a GATS provision. Nevertheless, if no serious economic interests are involved in a dispute, there is little chance that a case will be brought to the WTO dispute settlement system.

[30] Note that the asset freeze will be a more important issue in the case of American sanctions, under which assets of different Russian commercial entities were frozen (e.g. SMP Bank, Bank Rossiya and its subsidiary Sobinbank, weapons maker KBP Instrument Design Bureau), cf. RT, US freezes $640mn in sanctioned Russian bank assets, https://www.rt.com/business/238297-russian-banks-frozen-assets/ [accessed: 03.07.2017]. Such a freeze in practice prevents Russian service suppliers from providing their services to the US market.

[31] As noted by Adlung “[w]hile the foreign suppliers must be treated on a par, pursuant to the MFN requirement, measures that differentiate between potential destinations or recipients, i.e. service users of different nationality, are not restricted [by the MFN] per se” (R. Adlung, Export Policies and General Agreement on Trade in Services, 18 Journal of International Economic Law 487 (2015), p. 494).

[32] See Council for Trade in Services, Guidelines for the Scheduling of Specific Commitments under the General Agreement on Trade in Services (GATS), 23 March 2001, S/L/92, para. 30.

[33] Adlung, supra note 31, p. 496. Cf. also the observation of the panel in China – Electronic Payment Services: “[n]othing in the GATS suggests that the supply of a service through commercial presence in the territory of a Member does not extend to the ‘export’ of services from that Member’s territory to a recipient in the territory of another Member or to a foreign recipient located in the ‘exporting’ Member’s territory” (Panel Report, China – Certain Measures Affecting Electronic Payment Services, WT/DS413/R, adopted 31 August 2012, para. 7.618).

[34] Cf. WTO, Communication from the European Communities and its Member States, Draft consolidated GATS Schedule, S/C/W/273, 9 October 2006.

[35] With the exception of the notification requirement. Art. XIV bis: 2 explicitly requires WTO Members to inform the Council for Trade in Services on their measures taken for security reasons, as well as about their termination. Note also that there are some secondary differences resulting from the fact that the GATT 1994 is concerned with the trade in goods, while the GATS covers trade in services.

[36] UN GA, Resolution 68/262, Territorial integrity of Ukraine, 27 March 2014, A/68/L.

[37] L. Johnson, “Uniting for Peace”: Does It Still Serve Any Useful Purpose?, 108 Am. J. of Int’l L. Unbound 106 (2014).

[38] It should be recalled that the authors focus on primary norms of WTO law, which should be distinguished from a secondary norm of a state of necessity precluding the wrongfulness of an act, as confirmed under ILC Draft Articles on State Responsibility (cf. “Reading an NPM clause as equivalent to the customary defence of necessity would render the clause pointless”: W. Burke-White & A. von Staden, Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties, 48(2) VA J. Int’l L. 307 (2008), p. 324).

[39] E.g. R.P. Alford, The Self-Judging WTO Security Exception, 3 Utah Law Review 697 (2011), p. 698; R. Bhala, National Security and International Trade Law: What the GATT Says, and What the United States Does, 19 U. Pa. J. Int'l L. 263 (1998), pp. 268–269; A. Emerson, Conceptualizing Security Exceptions: Legal Doctrine or Political Excuse, 11 Journal of International Economic Law 135 (2010), pp. 142–143.

[40] E.g. T. Cottier & P. Delimatsis, Article XIV bis, in: R. Wolfrum, P.-T. Stoll, C. Feinaugle, WTO – Trade in Services, Martinus Nijhoff Publishers, Leiden, Boston: 2008, p. 398.

[41] D. Akande & S. Williams, International Adjudication on National Security Issues: What Role for the WTO?, 43 VA J. Int’l L. 365 (2003), p. 398.

[42] E.g. Cottier & Delimatsis, supra note 40, p. 339.

[43] E. Pickett & M. Lux, Embargo as a Trade Defense against an Embargo: The WTO Compatibility of the Russian Ban on Imports from the EU, 10 Global Trade and Custom Journal 1 (2015), p. 28.

[44] Cottier & Delimatsis, supra note 40, p. 339.

[45] E.g. M.J. Hahn, Vital Interests and the Law of GATT: An Analysis of GATT’s Security Exception, 12 Michigan Journal of International Law 558 (1991), p. 587; P. Lindsay, The Ambiguity of GATT Article XXI: Subtle Success or Rampant Failure?, 52 Duke Law Journal 1277 (2003).

[46] Cf. e.g. E. Kontorovich, The Arab League Boycott and WTO Accession: Can Foreign Policy Excuse Discriminatory Sanctions?, 4(2) Chicago Journal of International Law 283 (2003), p. 291.

[47] S. Schill & R. Briese, “If the State Considers”: Self-Judging Clauses in International Dispute Settlement, 13 Max Planck Yearbook of United Nations Law 61 (2009), p. 107; Akande & Williams, supra note 41, pp. 401–402.

[48] H.L. Schloemann & S. Ohlhoff, “Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence, 93(2) Am. J. of Int’l L. 424 (1999), pp. 443, 446; Akande & Williams, supra note 41, p. 402 (making this observation with respect to the “emergency” condition).

[49] WTO dispute settlement bodies are required to interpret WTO provisions in accordance with customary rules of interpretation as embodied in the Vienna Convention on the Law of Treaties (VCLT) (cf. Art. 3.2. of the Understanding on rules and procedures governing the settlement of disputes). Art. 31.1 of the VCLT asks for account to be taken, not only of the context, but also of any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. Moreover, Art. XVI:1 of the WTO Agreement provides that the organisation “shall be guided by the decisions, procedures and customary practices followed by the Contracting Parties to GATT 1947”.

[50] GATT Contracting Parties, Third Session, Summary Record of the Twenty-Second Meeting, 8 June 1949, CP.3/SR22-II/28. For example, it was unambiguously stated during the discussion that “every country must be the judge in the last resort on questions relating to its own security. On the other hand, every contracting party should be cautious not to take any step which might have the effect of undermining the General Agreement”.

[51] The boycott was connected with the Angolan war of independence. The revolt, initiated by Angolans, was brutally suppressed by the Portuguese colonial military forces. The fighting continued until 1975, when the country finally declared its independence.

[52] WTO, Analytical Index. Guide to WTO Law and Practice, Cambridge University Press, Cambridge: 1995, p. 600.

[53] Ibidem.

[54] Schloemann & Ohlhoff, supra note 48, p. 437.

[55] Decision concerning Article XXI of the General Agreement, L/5426, adopted on 2 December 1982, 29S/23.

[56] GATT Panel Report, United States – Trade Measures affecting Nicaragua, 13 October 1986, L/6053 (unadopted).

[57] Ibidem, para. 5.17. It is worth noting that the approach hinted at by the panel is consistent with the International Court of Justice’s judgment in Nicaragua v. the US, wherein the Court differentiated between what is considered necessary under GATT Art. XXI, and necessary measures under the 1956 Treaty of Friendship, Commerce and Navigation between those two states: Case concerning military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States), Judgment of 27 June 1986, para. 222.

[58] Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard on 16 October 1996, 26 November 1996, WT/DSB/M/24, para. 7.

[59] Nicaragua – Measures Affecting Imports from Honduras and Colombia – Request for Consultations by Colombia, WT/DS188, 28 March 2000.

[60] Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard on 18 May 2000, 26 June 2000, WT/DSB/M/80, paras. 28–30.

[61] Pickett & Lux, supra note 43, pp. 13.

[62] The issue of whether Art. XXI of GATT is self-judging has also been considered by investment tribunals (referred to in the process of interpretation of security exceptions in specific bilateral investment treaties). The CMS tribunal stated that “…if legitimacy of such measures is challenged before an international tribunal, it is not for the State in question, but for the international jurisdiction to determine whether the plea of necessity may exclude wrongfulness” (CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, Award, paras. 339–340, 373). In the Enron award it was stated that recognition of the self-nature of the necessity test would deprive it of any substantive meaning (Enron Corporation and Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case No. ARB/01/3, Award, paras. 299, 326–327, 331–332). The Sempra tribunal stated that “the very fact that such [Art. XXI] has not been excluded from dispute settlement is indicative of its non-self-judging nature” (Sempra Energy International v. The Argentine Republic, ICSID Case No. ARB/02/16, Award, para. 384, 389). Such a conclusion is supported by the ICJ: referring to a similar exception under an FCN in the above-quoted judgement in Nicaragua v. the US; with respect to necessity under ILC Draft Articles on International Responsibility of States, Art. 25 (Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, paras. 50–51); assessing the Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran (Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 12 December 1996 (preliminary objections); as well as in Judgment of 6 November 2003 (merits), para. 40.

[63] Cf. also Cottier & Delimatsis, supra note 40, pp. 339–340.

[64] Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, para. 156. Although this argument was made in the context of the chapeau of Art. XX, on the systemic level, it is also valid when it comes to Art. XXI (which does not include a similar introductory clause).

[65] Cf. also T. Gazzini, Interpretation of (Allegedly) Self-Judging Clauses in Bilateral Investment Treaties, in: M. Fitzmaurice, O. Elias, P. Merkouris, Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on, Martinus Nijhoff Publishers, Leiden, Boston: 2010, pp. 239–254.

[66] Note that in some cases there might be very little (if any) practical difference between good faith review and a highly deferential standard.

[67] Appellate Body Report, US – Shrimp, para. 158.

[68] See e.g. Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/R, 15 July 2011, as modified by Appellate Body Report, WT/DS371/AB/R, fn. 1543.

[69] P.-H. Verdier, Cooperative States: International Relations, State Responsibility and the Problem of Custom, 42 VA J. Int’l L. 839 (2002), p. 854 (stating “proving a state’s negligence would be almost impossible”).

[70] Cf. UN GA, Resolution 68/262.

[71] Cf. e.g. R. Kagan, New Europe, Old Russia, The Washington Post, 6 February 2008, http://wapo.st/1MRi72p [accessed: 22.2.2016].

[72] European Leadership Network, List of Close Military Encounters Between Russia and the West, March 2014-March 2015, http://bit.ly/1IWquak [accessed: 22.2.2016].

[73] Declaration by the High Representative on behalf of the EU on Crimea, 16 March 2015, http://bit.ly/1bbub12 [accessed: 22.2.2016].

[74] Cottier & Delimatsis, supra note 40, p. 340 (arguing that WTO Members are entitled under Art. XXI GATT to define what they consider necessary for the protection of their national interests, and that such entitlement will be greatly compromised if only actual threats are relevant).

[75] While no official results of the Dutch criminal investigation are available, there is a range of evidence which suggests that the plane was shot down by the mobile Soviet-designed Buk missile system provided by Russia and operated by the rebels (cf. MH17 The Open Source Evidence. A Bellingcat Investigation, 8 October 2015, http://bit.ly/1Lo0SCL [accessed: 22.2.2016]).

[76] Parliamentary Assembly of the Council of Europe, Resolution 1990 (2014), 10 April, 2014. Similarly, Resolution 2034 (2015), 28 January 2015, confirmed by virtue of Resolution 2063 (2015) adopted on 24 June, 2015. In response, the Russian Federation suspended its participation in PACE.

[77] Council of Europe, Committee of Ministers welcomes cease-fire agreement and urges Russia to withdraw all its troops from Ukraine, Press release – DC107(2014).

[78] OECD, Statement by the OECD regarding the status of the accession process with Russia & co-operation with Ukraine, 13 March 2014.

[79] NATO, North Atlantic Council statement on the situation in Ukraine, Press Release (2014) 033, 2 March, 2014.

[80] NATO, Statement by the North Atlantic Council on the so-called referendum in Crimea, Press Release (2014) 046, 17 March 2014.

[81] NATO, NATO’s relations with Russia (last update 11 November 2015), http://bit.ly/1SxV8z7 [accessed: 22.2.2016].

[82] UN, Press Release GA/11493, 27 March 2014.

The Ukrainian Crisis: Wrong Responses of the International Community?
Alena F. Douhan[*]

doi: 10.7366/9014Crimea13

Introduction

While the situation in Ukraine came to the attention of the international community in January 2014, it was only in September 2014 that first steps towards its settlement were seen with the conclusion of the Minsk agreement (Protocol) of 5.09.2014. This Protocol agreed a ceasefire and launched a political process to resolve the crisis[1]. The International Red Cross Committee and Amnesty International refer to the crisis in Ukraine as a war[2] and an international military conflict,[3] respectively. At the same time, neither of the parties involved acknowledges the existence of a military conflict. However, Jens Laerke (UN Office for the Coordination of Humanitarian Affairs) noted that humanitarian situation in the Ukraine is still deteriorating (15.07.2015).[4]

Naturally, the United Nations, regional organisations and states have been involved at length in the analysis and settlement of the Ukrainian conflict. This includes a number of issues, which resulted in different forms of reaction on the part of international organisations and states, and in particular:

– the situation in Ukraine in general, starting from the very beginning of Majdan;

– the accession[5] of Crimea to the Russian Federation;

– conflict in the south-east of Ukraine, proliferation of the conflict, the application of international humanitarian law, etc.;

– the downing of Malaysian Airlines Flight MH17 (hereinafter – MH17), investigation of the downing, the responsibility of conflict-parties and individuals.

Meanwhile, as usual, parties involved assess the situation differently. All allege violation of jus cogens norms by the opponent (e.g. the use of force in Crimea, the threat of the use of force in SE Ukraine, intervention in the domestic affairs of states by Russia – according to Ukraine; violation of the rights of Russian-speaking minorities in Crimea, impeded exercise of the right to self-determination for the inhabitants of SE Ukraine; military activity against an own population (Meeting 7167 of the UN Security Council of 2.05.2014[6]) and ethnic cleansing by Ukraine (statement of Russian Foreign Minister S. Lavrov on 17.06.2014 – referred to at Meeting 7205 of the UN Security Council of 24.04.2014[7]) – according to Russia). This approach continues to be observed through to the present day. In particular, at Meeting 7457 of the UN Security Council of 5.06.2015 the two parties accused each other of starting the first shooting in Marinka resulting in civilian casualties.[8]

On the other hand, as in any typical conflict, both Russia and Ukraine have referred repeatedly to the need for the protection of some “high” values to justify their own activity (protection of human rights or national minorities, assistance in the process of self-determination, the struggle against international terrorism), again at meetings of the UN Security Council (e.g. meeting 7125 of 3.03.2014[9]). These all make this complex situation even more complicated.

International organisations as collective entities are traditionally expected to demonstrate impartiality, and a willingness to maintain peace, order, human rights and the rule of law, as well as to take all possible steps to achieve these objectives. In reality, it is only possible to accept that they often use a rather selective approach that unfortunately does not help settle the conflict, but rather tends to result in a deterioration of the situation.

It is not my purpose here to assess the legality of the activity of Russia, Ukraine or the South-Eastern part of Ukraine. On the contrary, this article seeks to establish whether the response of the international community to the crisis was adequate. The first part is thus devoted to the activity of different organs and organisations of the United Nations, while the Second focuses on measures taken by regional organisations (the Organization for Security and Cooperation in Europe (hereinafter – OSCE), the North Atlantic Treaty Organization (hereinafter – NATO), the Collective Security Treaty Organization (hereinafter – CSTO), the Council of Europe (hereinafter – COE), and the European Union (hereinafter – EU)).

1. The United Nations response to the Ukrainian crisis

Despite initial enthusiasm concerning the establishment of a universal system of collective security, the United Nations can hardly be characterised as an ideal body. It can be accepted that the UN Security Council, assigned primary responsibility for the maintenance of international peace and security (UN Charter, Art. 24(1)[10]), currently provides a forum for discussion of the most urgent issues in the security area, checks on the legality of activity of regional organisations and states in the security area, and authorises application of enforcement action. Action in this field is usually taken by regional organisations, with the UN only playing a subsidiary role here.

1.1. The UN Security Council

The UN Security Council has repeatedly monitored and examined the situation in Ukraine since 1.03.2014, at the requests of both Ukraine (Letter of 28.02.2014[11]) and the Russian Federation (Letter of 13.04.2014[12]). Six meetings took place in January–June 2015 alone. Despite these repeated meetings on the issues of Crimea (meetings 7124 of 1.03.2014,[13] 7125 of 3.03.2014, 7134 of 13.03.2014,[14] 7144 of 19.03.2014[15]), the general situation and observance of human rights in Ukraine (meetings 7154 of 13.04.2014,[16] 7157 of 16.04.2014,[17] 7205 of 24.06.2014[18]), the activity of insurgents in SE Ukraine (meetings 7165 of 29.04.2014,[19] 7167 of 2.05.2014, 7185 of 28.05.2014,[20] 7205 of 24.06.2014 and all those hold in 2015) and the aircraft crash (meetings 7219 of 18.07.2014,[21] 7221 of 21.07.2014,[22] 7498 of 29.07.2015[23]), the UN Security Council has thus far adopted only two Resolutions concerning the situation in Ukraine: Resolution 2166(2014) of 21.07.2014[24] – devoted to the downing of Malaysian Airlines flight MH17, in which the Council stressed the need for a full and thorough international investigation of the crash (preamble, para. 3) and demanded that conditions necessary for this investigation be assured (paras. 6–7); and Resolution 2202(2015) of 17.02.2015, reaffirming full respect for the sovereignty and territorial integrity of Ukraine (preamble) and endorsing a package of measures to implement the Minsk Agreement (para. 1), which, as shall be noted, addresses both the Ukrainian forces and Donbas region.[25] The UN Security Council appeared unable to adopt a Resolution establishing an international tribunal to investigate the downing of the Malaysian aircraft (the draft Resolution[26]) because of the negative veto vote of Russia, although 11 states including 3 Permanent Members of the UN Security Council voted in favor of this Resolution (UN Security Council meeting 7498 of 29.07.2015).

In summarising the positions of states at the meetings of the Council, it should be noted that three of its Permanent Members (the United States, the United Kingdom and France) were joined by Lithuania in putting the main emphasis on the condemnation of Russia for every negative event in the course of the conflict. Negative rhetoric has often been used without any attempt to bring legal arguments. In particular, at Meeting 7498 of the UN Security Council, US representative Ms Powel blamed Russia for trying to “deny justice to the 298 victims” of MH17, although the UN Security Council has never established international criminal tribunals to investigate air crashes despite the existence of similar incidents in the past. From the legal point of view, one could confine discussion to the establishment of a mixed criminal tribunal (if there is a need to establish one in this case), on the basis of a formal agreement concluded between Ukraine and the UN Security Council.

It is also remarkable that in the draft Resolution on the establishment of an international criminal tribunal, the UN Security Council does not qualify the downing of Flight MH17 as a threat to international peace and security. Leaving aside the already-disputed right of the UN Security Council to establish international criminal tribunals insofar as no judicial functions have been conferred upon it,[27] in accordance with Art. 39 of the UN Charter, the UN Security Council may not take any action under Chapter VII until it recognises the situation as a threat to international peace and security. Moreover, previously adopted Resolutions do not qualify whether the downing of MH17 or the situation in Ukraine as such are threatening to international peace and security. None of these refer to Chapter VII of the UN Charter either. As a result, a Resolution “forcibly pushing forward a vote” (Speech of China’s Representative at the Meeting of the UN Security Council of 29.07.2015) was neither adopted, nor brought any conciliation to Members of the UN Security Council. The need for impartiality, neutrality and objectivity was stressed by China at all meetings of the UN Security Council.

The Council also made no attempt to establish whether the situation in Crimea or any other part of the conflict could be qualified as a dispute between Russia and Ukraine. If the facts of such a dispute were established, Russia would have to abstain in the process of voting in accordance with Art. 27(3) of the UN Charter, at least as far as Council decisions under Chapter VI are concerned. The UN Security Council could thus recommend the use of specific types of dispute settlement, or establish a UN fact-finding mission at least. Inaction of the Security Council in this situation seems all the stranger, as resort to diplomatic means was proposed by a substantial number of Council Members (the United Kingdom, China, Jordan, Nigeria and Argentina – at the 7134th meeting, Nigeria and Luxembourg – at the 7205th meeting); or else the commencement of particular dispute settlement mechanisms (mediation – Chad at the 7134th meeting, Nigeria – at the 7144th meeting; arbitration – Nigeria at the 7144th meeting). The UN Security Council was also called upon to act (e.g. by Luxembourg and Rwanda at the 7134th meeting). In effect, the UN Security Council has thus far merely provided a forum for discussion, at which Parties and Members could deliver their opinions without huge success, or even with no success at all.

1.2. The UN General Assembly

A similar approach was taken by the UN General Assembly, which on 27.03.2014 adopted Resolution 68/262, calling upon states not to recognise the results of the referendum in Crimea, or the transfer of Crimea to the Russian Federation.[28] In accordance with Art. 11 of the UN Charter, such Resolutions of the UN General Assembly are recommendatory. Meanwhile, although joining those who believe that they may have some legal consequences, at least as a part of the formation of international customs,[29] we believe here that Resolution 68/262 is not of this kind. It was adopted with 100 affirmative votes and 11 negative; while fifty-eight states abstained.[30] Art. 18 (2) of the UN Charter states that any decisions of the UN General Assembly on important questions shall be made by a “two-thirds majority of the members present and voting”. The same article expressly specifies that recommendations with respect to the maintenance of international peace and security are included in the first place within the scope of “important” questions. In accordance with para. 86[126] of the UN General Assembly Rules of Procedure, “ ‘members present and voting’ means members casting an affirmative or negative vote. Members which abstain from voting are considered as not voting”.[31] Viewed in this way, the requirement of Art. 18 (2) was observed formally with 90% of affirmative votes. At the same time this approach has been supported by only 59% of states present at the meeting and behaving actively (i.e. pressing the button), and only by 51% of UN Members. Accordingly, it is the opinion of the author that in this situation voting results do not demonstrate the general approach and cannot be viewed even as opinio juris on behalf of the existence or formation of the corresponding international custom.

1.3. The UN Secretary-General

The UN Secretary-General condemned the activity of unidentified armed groups in Lugansk and Donetsk (statements of 2.05.2014,[32] 7.07.2014[33]), violence (statement of 3.05.2014[34]), the capture of a group of OSCE military observers (statement of 28.04.2014[35]) and the downing of a Ukrainian military aeroplane (statement of 14.06.2014[36]). He also welcomed the prolongation of the cease-fire period, efforts seeking de-escalation of the conflict or its prevention (statement of 27.06.2014[37]), and the Geneva Talks (statement of 17.04.2014[38]). He expressed concern about violence in Kiev (statements of 20.01.2014[39], 18.02.2014[40], 19.02.2014[41]), the situation in Crimea (statements of 1.03.2014[42], 17.03.2014[43]) and in SE Ukraine (statements of 12.04.2014[44], 24.04.2014[45], 23.06.2015[46]); and he called upon both parties to respect the Minsk Agreement, to de-escalate violence and to provide possibilities for humanitarian assistance (statement of 17.08.2015[47]). However, these statements are political ones, offering no legal assessment or qualification and proposing no specific means for settlement of the conflict, despite the fact that the UN Secretary General has repeatedly been involved in good offices or mediation. In the existing form, they nevertheless demonstrate the UN approach to the situation and may be assessed (at least at the last stage) as a form of political good offices.

1.4. Other UN organs and organisations

Some steps have also been taken by other UN organs. In particular, the UN High Commissioner for Human Rights proclaimed the need to respect the rule of law, called on all parties to observe human rights (statement of 6.05.2014)[48] and to cease violence; he condemned military groups in the DPR and LPR for violation of human rights and threats to the civilian population (statement of 4.07.2014[49]). Established in April 2014, the UN Human Rights Monitoring Mission observes the situation in Ukraine and reported initially monthly (Reports of 15.04.2014,[50] 15.05.2014,[51] 15.06.2014[52]) and now – every three months (Report of 15.05.2015[53]). The UN World Food Program started to assist monetarily and with food to people in the government-controlled Lugansk and Donetsk regions in August 2015.[54] UNICEF also called for water supplies to the Lugansk and Donetsk regions to be restored (July 2015).[55]

2. Regional organisations’ responses to the Ukrainian crisis

The approaches regional organisations involved in the maintenance of international peace and security adopt towards the situation in Ukraine are seen to differ greatly.

2.1. The Organization for Security and Cooperation in Europe

The OSCE has made multiple efforts to observe and settle different aspects of the conflict. It appointed a Special Envoy to Ukraine (28.02.2014), who visited that country repeatedly. He conducted bilateral talks with Parties involved, established a national dialogue programme (20.03.2014–30.04.2014), a mission of military observers (5–12.03.2014), a human rights assessment mission in cooperation with the OSCE High Commissioner for national minorities (18.03–12.05.2014), the presidential elections observation mission (20.03–26.05.2014), and the Special Monitoring Mission for Ukraine (Decision of the OSCE Permanent Council No. 1117 of 21.03.2014).[56]

The OSCE also organised military verification visits within the framework of Vienna Document 2011 (5–12.03.2014) and called upon parties to consult and cooperate as regards unusual military activity on the basis of that same Document (April 2014). OSCE officials, including the High Commissioner on National Minorities, the Representative on the Freedom of the Media and the OSCE Project Coordinator, have travelled to/been stationed in Ukraine. OSCE Secretary-General L. Zannier made contact with all parties involved, and called for a settlement of the conflict.

The OSCE joins Russia and Ukraine as a member of the Trilateral Contact Group on Ukraine.[57] Settlement of the conflict there was on the agenda of the annual OSCE Security Review Conference, which took place on 24.06.2014. The Conference provided a platform upon which to establish dialogue between the Parties.[58] On 18.07.2014, the OSCE Permanent Council adopted a Declaration on the tragic crash of Malaysian Airlines Flight MH 17 in Ukraine, with an investigation into the reasons for the crash called for (para. 4), while the parties were to call an armistice and to cease firing in the east of Ukraine (para. 1).[59]

The OSCE has played an important role in the monitoring of the situation. For example, the Special Monitoring Mission reports daily.[60] Furthermore, OSCE monitoring is recognised as a reliable source of information. It played and continues to play an important role in the settlement of the conflict. The OSCE Special Mission is named in the Geneva Declaration of 17.04.2014 as a key actor in the de-escalation of the conflict,[61] and it continues to perform this role.[62] The Minsk Agreement of 5.09.2014 refers to only one organisation – the OSCE – and expressly entitles it to monitor and verify both the cease-fire and the Ukrainian-Russian border (paras. 2, 4). Since then, the OSCE Observer Mission at the Russian Gukovo and Donetsk checkpoints has provided weekly updates concerning the transfer of people, vehicles and arms to and from both sides of the border.[63]

2.2. The North Atlantic Treaty Organization

NATO has analysed the situation in Ukraine repeatedly. It condemned breaches of international law committed by Russia, called upon the latter to honour its international commitments, entered into negotiations with Ukraine, discussed the issue within the NATO-Russia Council (Statement of the North Atlantic Council of 2.03.2014[64]), and expressed its support for Ukraine (Statement after the Wales Summit of 4.09.2014[65]).

NATO Secretary General A.F. Rasmussen has made repeated statements concerning the Ukrainian conflict. He condemned Russia’s annexation of Crimea (Statement of 16.09.2014),[66] and the entry of a Russian convoy on to the territory of Ukraine (saying that it could only escalate the conflict – Statement of 22.08.2014[67]), reported the election in Crimea of 14.09.2014 (Statement of 16.09.2014), expressed solidarity with Ukraine, and condemned the escalation of Russia’s military aggression against it (Statement of 29.08.2014[68]). He also announced that Russia was currently fighting Ukraine, and that Russian troops and tanks were attacking it (Statement of 5.09.2014),[69] and called for immediate international investigation of the downing of Malaysian Airlines Flight MH17 (Statement of 17.07.2014[70]).

Furthermore, NATO, while focusing on condemnation of Russia for the annexation of Crimea, called for observance of the Minsk Agreement, blamed Russia for support to SE Ukraine (Meeting of Ambassadors of 11.03.2015[71]), and stated openly that allies should provide the Ukrainian government, not only with military advice, but also “humanitarian, medical and other non-lethal support” (Joint Statement of the Ukraine-NATO Commission 13.05.2015[72]), although the provision of military advice and non-lethal weapons and other support demonstrate intervention in an internal conflict, the possibility of which is very much disputed in international law. As G. Nolte rightly notes, even in traditional international law there was no customary norm providing for the legality of military intervention in a state experiencing civil conflict, even upon the invitation of its government.[73] E.g. the intervention by the Organization of Eastern Caribbean States in Grenada in 1983 upon the invitation of its governor was condemned by the UN Security Council (Official Record, 2389th Meeting, 26 October 1983) and General Assembly (Official Record, 1983, 43rd Plenary Meeting, 2 November 1983).[74] It is usually considered that the very fact of civil war may demonstrate that a government is not supported by the majority of its population and is, therefore, ineffective.[75] Moreover, military intervention in a civil conflict upon the consent/invitation of one of the parties contradicts general principles and norms of international law (see Additional Protocol II (1977), art. 3).[76]

2.3. The Collective Security Treaty Organization

The CSTO has monitored and considered different aspects of the situation in Ukraine at the meetings of its organs (the Military Committee and Permanent Council[77]) and at informal meetings.[78] The CSTO expressed its readiness to cooperate with Ukraine in any form (Statement of the CSTO Secretary General of 1.02.2014[79]), and called upon the two parties to engage in dialogue, to observe the Geneva agreement of 21.02.2014 (Statement of the CSTO Secretary General of 28.02.2014[80]), to de-escalate the conflict in Eastern Ukraine (commentary of the CSTO Secretary General of 4.06.2014[81]), and to assist in the handling of the humanitarian crisis and humanitarian consequences (Statement of the CSTO Heads of States of 23.12.2014[82]).

It is notable that the only organisations with military forces at their disposal limited themselves to discussion, and to vocal support for one or the other party, this helping to prevent internationalisation of the Ukrainian conflict and its regeneration into a full-scale international military conflict.

2.4. The Council of Europe

The COE as well as the EU demonstrate the third variant where approach and behavior are concerned. On 23.01.2014, the COE adopted a Resolution, noting problems with the observance of democratic standards and human rights in Ukraine and imposing sanctions on a range of Ukrainian officials.[83] The Parliamentary Assembly of the Council of Europe (hereinafter PACE) condemned the use of force by Russia in Crimea, occupation of Crimean territory, as well as the threat of the use of force in SE Ukraine it suspended the voting rights of Russia in PACE until the end of the 2014 session (Resolution 1990(2014) of 1.03.2014, para. 15).[84] The decision was taken by an overwhelming majority, with 145 pro, 21 contra and 22 abstaining.[85] PACE did not recognise the results of the referendum in Crimea. It announced that Russian activity had caused a threat to security and stability in Europe (paras. 3, 6), and it condemned Russia’s appeals over the violation of rights of national minorities in Crimea (para. 8.), as well as violations of the sovereignty and territorial integrity of Ukraine made by Russia (para. 13). The Council of Europe also expressed support for the Unitarian status of Ukraine (Statement of the Secretary General of 30.04.2014[86]).

The latter statement, however, is not entirely unambiguous from an international law perspective. Under the 1970 Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States, in accordance with the Charter of the United Nations every state has a right to choose its political system just as people have a right to choose political status.[87] The right to decide on Unitarian or Federal status of Ukraine thus resides solely with Ukraine and its people.

It should also be mentioned that, after the January 2015 prolongation of the suspension of voting rights to April 2015 (PACE Resolution 2034(2015), para. 14[88]), the Russian delegation left PACE for one year.[89] As a result, Russia announced that it might leave the COE at the end of 2015.[90] Afterwards both PACE and the EU started persuading Russia to restore its participation in the Assembly despite the continuing sanctions (Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe, 4.06.2015).[91]

2.5. The European Union

The EU approach has been very similar to that of the COE. The EU ceased negotiations with Russia on visa issues and announced its readiness to suspend Russia’s participation in the G8 until a final settlement of the conflict in Ukraine is arrived at (Statement of the Heads of States and Governments of 6.03.2014).[92] The EU refused to recognise the results of the referendum in Crimea (Statement of the High Representative for Foreign Affairs and Security Policy of 12.05.2014[93]). It also condemned the annexation of Crimea to Russia as well as the deteriorating human-rights situation in Crimea after the accession (Statement of the Heads of States and Governments of 27.05.2014[94]). Referring to its adherence to the territorial integrity of Ukraine, the EU prohibited import to the EU of goods from Crimea and Sevastopol without Ukrainian certificates (Conclusions of the European Council of 27.06.2014[95]).

The EU imposed sanctions on a number of Ukrainian officials and organisations, for the misappropriation of state funds and violations of human rights (Decisions of the EU Council 2014/119/CFSP of 6.03.2014, 2014/216/CFSP of 15.04.2014[96]), as well as on a number of individuals and organisations from the Russian Federation (Decisions of the EU Council ЕС 2014/145/CFSP of 17.03.2014, 2014/265/CFSP of 12.05.2014[97]). It also recommended to states that are non-members of the Union to apply the same sanctions (Declaration of 7.07.2014).[98] Leaving aside the rather disputable legality of targeted sanctions by the EU as such, it is believed here that international law provides absolutely no grounds for international organisations to impose sanctions on state officials of non-member states for alleged misappropriation of state funds. Even if proved, this activity constitutes a crime under national law, rather than international law. It does not breach any international treaty with the EU and stays thus within the reserve domain of Ukraine. It is only Ukraine itself which may start any sort of prosecution against these people.

Meanwhile the EU offered Ukraine financial help (Statement of the Heads of States and Governments of 6.03.2014), launched a Support group for Ukraine at the European Commission (9.04.2014[99]) and signed the Association Agreement with Ukraine, which includes i.a. provisions on cooperation in the sphere of security (Title III) and human rights (art. 14).[100] It is remarkable that neither the Association Agreement and cooperation within it, nor financial help, are conditioned by the settlement of the conflict in the South-East or the observance of human rights or norms of international humanitarian law (Joint Conclusions of the High-Level Meeting on Ukraine of 8.07.2014, para. 4[101]). The same approach may be observed through to the present time (Joint Statement of the EU-Ukraine Summit, April 2015[102]).

Unlike the COE, the EU took certain steps to establish contacts between the parties to the conflict. It welcomed, supported and financed OSCE activity in regard to the settlement of the conflict[103] and participated in the Geneva talks between Russia and Ukraine on 17.04.2014, which resulted in the signing of the Declaration on the settlement of the conflict.[104] At the same time, the general approach of the EU to the situation remains mostly unchanged. “Clear violation of Ukrainian sovereignty and territorial integrity by acts of aggression by the Russian Armed Forces since March 2014” is condemned strongly (17th EU-Ukraine Summit, Joint Statement, para. 9) as is “unlawful detention” of certain individuals by Russia (para. 12). The EU expressed its deep concern about the deterioration of the human-rights situation in Crimea (para. 10) and sought to stop the Russian “disinformation campaign” (para. 14). However, strangely enough (if rather expectedly) it voiced no concern for the thousands of victims in the SE part.

The view here is further that the EU failed to demonstrate a cohesive intent as regards preventing and later settling the conflict in the South-East. The change of government in Ukraine in December 2013, regardless of what it might be called or how it might be assessed (coup d’etat, impeachment, rebellion or pro-democratic change) was generally called “Euromajdan” to demonstrate the aspiration of those involved for Ukraine to achieve Association status with the EU, and, over a rather short time perspective – EU membership. Financial help, as well as repeat blaming of Russia provided an expected response to these hopes. However, the “favourable” EU approach changed as soon as the conflict started to endanger security and stability in the Union. Acceptance of Ukraine in the EU and even a visa waiver have the potential to destabilise the EU economy and undermine its stability and security, when hundreds of thousands of Ukrainians, as well as the criminal groups and weaponry spread broadly across Ukraine, enter the EU. As a result, in November 2014, German Foreign Minister F.-W. Steinmeier in his interview with Der Spiegel stated that Ukrainian membership of NATO is impossible, and membership of the EU might only be possible in the long-long term perspective, as a result of work of the “next few generations”,[105] i.e. (if we calculate traditionally that one generation equals 25 years) – in about 50–75 years. In the interview with the Wall Street Journal German Chancellor A. Merkel said that Europe was not even ready for a visa waiver for Ukraine.[106] The same approach has been demonstrated at recent summits, e.g. the 17th EU–Ukraine Summit of 27 April 2015 and the Riga Eastern Partnership Summit of 22–23 May 2015. The 17th EU–Ukraine Summit Joint Statement prescribes steps to be taken by Ukraine in the course of reforms (paras. 5, 6). The EU continues with financial help for Ukraine providing some 11 billion euros (para. 8). Any other integration, including as regards a visa-waiver is to be pursued in accordance with a standard plan (para. 18).

3. The international response to Ukrainian refugees

A similarly inconsistent approach demonstrated by international organisations applies as regards another problem arising because of the Ukrainian crisis – that of refugees and internally displaced persons. In accordance with UN statistics, in June 2015, Ukraine remained among the 10 top countries for numbers of internally-displaced persons – 1.3 million; while 870,000 Ukrainians were seeking asylum (Statement of Mr. Feltman – Under Secretary-General for Political Affairs at the UN Security Council Meeting of 5.06.2015). In March 2015, the number of refugees was much lower – 670,000 (UN Security Council Meeting 7400, of 6.03.2015).[107]

On a positive note, the UN did start to pay a great deal of attention to humanitarian aid and water supply for internally-displaced persons. The refugee situation is more complicated, in that it is to be settled, not within Ukraine, but by neighbour states.

From the geographical perspective, Ukrainian refugees could flee to Russia, Belarus and Moldova as well as the EU Member States (Poland, Slovakia, Hungary and Romania). De facto the major part of the Ukrainian refugees fled to Russia (as of January 2015 – 524,000) (PACE Resolution 2028 of 28.01.2015, para. 4[108]). Many also fled to Belarus, which has an economic crisis of its own. In line with UN High Commissioner for Refugees (hereafter UNHCR) statistics, about 1% of the Belarusian population currently comprises people moving from Ukraine since the beginning 2014. That is about 95,000–100,000 people.[109]

Meanwhile, the EU as such and EU countries in particular are currently rather reluctant to accept Ukrainian refugees. For example, Poland claimed to be ready to shelter up to 3 000 people from Ukraine (out of 870,000 seeking asylum).[110] From the economic point of view, the reluctance to grant access to EU territory is rather understandable: flows of refugees will impose a heavy burden on the European economy; open borders will increase the level of criminality. However, it looks rather strange that states limiting access to Ukrainian refugees to their territories, call upon Russia to provide shelter for about 600 000 people (PACE Resolution 2028(2015), para. 13.3), criticise it for certain shortages and demand that Russia refrains from imposing quotas with regard to the settlement of immediate asylum-seekers (para. 13.5).

Conclusions

All of the above leads me to conclude that the situation in Ukraine demonstrates clearly that international community, in the face of both the UN and regional organisations, is not ready to shoulder accountability for the maintenance of international peace and security in Ukraine even now, when the situation has resulted in fullscale internal conflict with over 6 400 as the official death toll as stated at UN Security Council Meeting 7457 of 5.06.2015.

It is not my purpose here to provide legal assessment of the activity of all actors involved. Neither do I intend to say that Russian policy or behaviour was legal at all or specific stages. On the contrary, I insist that no actor demonstrated its true adherence to the maintenance of international peace and security, and all of them applied and unfortunately still apply double standards.

On the positive side, it can be noted that the UN approach to the situation in Ukraine is changing, apparently. In particular, the UN Security Council in its Resolution 2202(2015) addresses the matters of both Ukrainian forces and the Donbas region. UN Secretary General Ban Ki-Moon, in his speech at the PACE on 23.06.2015, pays major attention to the settlement of the conflict in the South-East,[111] and asks both parties to de-escalate the conflict, to fulfill their commitments and to provide a possibility for humanitarian assistance (Statement of 17.08.2015). The UN Under Secretary-General for Political Affairs, Mr. Feltman, noted negative steps on the part of both the official Ukrainian authorities and Donetsk non-governmental powers (UN Security Council Meeting 7457 of 5.06.2015). It was also noted above that the United Nations has just started to come to conclusions regarding the need to stop the conflict deteriorating and to have it settled on an impartial basis, with all guilty parties later being punished.

In line with the normal distribution of tasks between the UN and regional organisations, the UN organs and institutions supplement activity of the OSCE, organise humanitarian assistance and aim to support internally-displaced persons. Despite all the critique targeted at the UN Security Council, it did provide a forum for the the situation to be discussed. Unfortunately, a number of steps have not been taken or have been taken too late. Some legal instruments have not been resorted to – first for political reasons. However, the use of Charter mechanisms also in regard to the need to have a joint position of all Permanent Members of the UN Security Council prevented further deterioration of the situation.

Unfortunately, neither universal nor regional organisations appeared able to act effectively to stop conflict before it became full-scale. The illegality of Russia’s behaviour in Crimea did not excuse the introduction of sanctions, the status of which is not clear under international law (even a UN Special Rapporteur on the negative impact of unilateral coercive measures was appointed in March 2015). A situation involving resort to double standards with eyes closed to violations committed by one side, while those committed by the other are stressed; as well as third states and other organisations placing political interests before the lives of people, e.g. regarding the conflict in SE Ukraine, could only result in a deterioration of the conflict. I would therefore like to cite here the Representative of Rwanda, Mr. Gasana, who noted at the Meeting of the UN Security Council of 2.05.2014 that “the strongest condemnations […] will not resolve the Ukrainian crisis”.

Another example of political pressure and resort to double standards includes the attempt to establish an international criminal tribunal to investigate circumstances surrounding the downing of the Malaysian Boeing, in the absence of any legal grounds including consistent practice, as well as bad legal technique; as well as the sending of military advisors and supply of the central government with weapons at the same time as Russia is being criticised for similar activity in the South-East.

It is also strange that, despite the existence of refugee flows, there is not even any discussion concerning assistance with the sheltering of Ukrainian refugees, not only for Russia, but even for Belarus, which (although afflicted by economic crisis) shelters more Ukrainian refugees than all the EU countries. It looks as if the willingness to appoint Russia as “the only guilty party” in the whole Ukrainian situation (here considered untrue, without prejudice to, or without excluding, the wrongfulness of Russia’s behaviour in Crimea) has prevailed over a rational need to prevent and settle the conflict, and its humanitarian consequences.

Abstract: The Ukrainian crisis ongoing since December 2013 has demonstrated clearly how rapidly a situation may pass out of control, and how bad the consequences can be if efforts made by parties involved, as well as third parties are motivated politically and not sincere. For its part, the international community as represented by both the United Nations and regional organisations has demonstrated its inability to act rapidly, effectively, in accordance with international law and without resort to double standards. It is the legal assessment of the effectiveness of this response from both the United Nations and regional organisations that is the key focus of this article, as different aspects of the crisis in Ukraine are concerned.

Keywords: Ukrainian Crisis, Security, United Nations, regional organisations, Organization for Security and Cooperation in Europe, North Atlantic Treaty Organization, Collective Security Treaty Organization, Council of Europe, European Union, Refugees.

[*] Alena F. Douhan, Dr. Dr. hab., Professor, Vice-rector on Education and International Relations, Head of International Law Department, “MITSO” International University, Minsk, Belarus.

[1] Protocol on the results of the trilateral Contact Group concerning Joint Measures aimed at Implementation of the Peace Plan of President of Ukraine P. Poroshenko and initiatives of President of Russia V. Putin, http://slavyangrad.org/2014/09/07/protocol-of-the-tripartite-contact-group-minsk-september-5-2014/ [accessed: 12.08.2015].

[2] Ukraine war crimes trials a step closer after Red Cross assessment, http://www.reuters.com/article/2014/07/22/us-ukraine-crisis-warcrimes-idUSKBN0FR0V920140722 [accessed: 12.08.2015].

[3] Ukraine: Evidences of war crimes and Russian intervention are multiplied, http://www.amnestyusa.org/news/news-item/ukraine-mounting-evidence-of-war-crimes-and-russian-involvement [accessed: 12.08.2015].

[4] As Ukraine fighting continues, UN warns of worsening humanitarian crisis, http://www.un.org/apps/news/story.asp?NewsID=51380#.Vc3YPf4w_DA [accessed: 12.08.2015].

[5] The term “accession” will be used here as a neutral one, while the article contains no analysis as to whether it was incorporation of territory into the Russian Federation or occupation of this territory.

[6] UN Security Council Meeting 7167 of 2.05.2014, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7167 [accessed: 12.08.2015].

[7] UN Security Council Meeting 7205 of 24.04.2014, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7205 [accessed: 12.08.2015].

[8] UN Security Council Meeting 7457 of 5.06.2015, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7457 [accessed: 12.08.2015].

[9] UN Security Council, Meeting 7125 of 3.03.2014, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7125 [accessed: 12.08.2015].

[10] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16.

[11] Letter of the Permanent Representative of Ukraine to the United Nations, 28.02.2014, S/2014/136, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/136 [accessed: 12.08.2015].

[12] Letter of the Permanent Representative of Russian Federation to the United Nations, 13.04.2014, S/2014/264, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/264 [accessed: 12.08.2015].

[13] Ukraine, in Emergency Meeting, Calls on Security Council to Stop Military Intervention by Russian Federation, http://www.un.org/press/en/2014/sc11302.doc.htm [accessed: 12.08.2015].

[14] Peaceful Resolution of Ukraine Crisis Remains Possible, Under-Secretary-General Tells Security Council during Briefing, http://www.un.org/press/en/2014/sc11314.doc.htm [accessed: 12.08.2015].

[15] UN Security Council, Meeting 7144 of 19.03.2014, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7144 [accessed: 12.08.2015].

[16] Ukraine Situation ‘More Combustible than Ever’, Assistant Secretary-General Warns Security Council, Calling for Action to De-escalate Crisis, http://www.un.org/press/en/2014/sc11351.doc.htm [accessed: 12.08.2015].

[17] Assistant Secretary-General Stresses Need to Uphold Human Rights Standards in Security Council Briefing on Ukraine Visits, http://www.un.org/press/en/2014/sc11358.doc.htm [accessed: 12.08.2015].

[18] Peace Plan, Unilateral Ceasefire Offer Hope for Resolving Conflict in Ukraine, Political Affairs Official Tells Security Council, http://www.noodls.com/view/301C55F0312F8BC588BB3C7410BF1BAAA058E313?301xxx1425680071 [accessed: 12.08.2015].

[19] Emerging Spirit of Compromise’ Evaporates as Violence Escalates in Ukraine, Under-Secretary-General Tells Security Council, http://www.un.org/press/en/2014/sc11375.doc.htm [accessed: 12.08.2015].

[20] Reaching Out to East Critical after Ukraine Elections, Under-Secretary-General Tells Security Council in Briefing, http://www.un.org/press/en/2014/sc11417.doc.htm [accessed: 12.08.2015].

[21] Security Council Calls for Immediate, Credible Investigation Into Downing of Civilian Aircraft over Ukraine, http://www.un.org/press/en/2014/sc11481.doc.htm [accessed: 12.08.2015].

[22] Security Council condemns downing of Malaysian airliner, calls for international probe, http://www.wsj.com/articles/australia-drafts-plan-for-access-to-downed-mh17-1405920898 [accessed: 12.08.2015].

[23] UN Security Council, Meeting 7498 of 29.07.2015, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7498 [accessed: 12.08.2015].

[24] UN Security Council Resolution 2166(2014) of 21.07.2014, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2166(2014) [accessed: 12.08.2015].

[25] UN Security Council Resolution 2202(2015) of 17.02.2015, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2202(2015) [accessed: 12.08.2015].

[26] Draft Resolution UN doc S/2015/562, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2015/562 [accessed: 12.03.2016].

[27] Military and paramilitary activity in and against Nicaragua (Nicaragua v. United States of America) (Preliminary objections) [1984] ICJ Rep., p. 435; R.A. Kalamkarjan, Codification of International Law and Modern World Order, Nauka, Moscow: 2008, p. 112; A. Bianchi, Assessing the effectiveness of the UN Security Council’s anti-terrorism measures: the quest for legitimacy and cohesion, 17(5) Eur. J. Int’l L. (2006), p. 889.

[28] UN General Assembly Resolution 68/262 of 27.03.2014, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/262 [accessed: 12.03.2016].

[29] J.E. Alvarez, International Organisations as Law Makers, Oxford University Press, Oxford: 2005, p. 165.

[30] Press release of 27.03.2014 GA/11493, http://www.un.org/press/en/2014/ga11493.doc.htm [accessed: 12.03.2016].

[31] Rules of Procedure of the General Assembly (with amendments and additions adopted by the General Assembly in September 2007) A/520/Rev.17, http://www.un.org/ga/search/view_doc.asp?symbol=A/520/rev.17&Lang=E [accessed: 12.03.2016].

[32] Statement attributable to the Spokesman for the Secretary-General on the situation in Ukraine of 2.05.2014, http://www.un.org/sg/statements/index.asp?nid=7642 [accessed: 12.03.2016].

[33] Ukraine: Amidst intensified military offensive, Ban condemns violence against civilians. Statement of 7.07.2014, http://www.un.org/apps/news/story.asp?NewsID=48215#.U8X8YNG84n4 [accessed: 12.03.2016].

[34] Statement attributable to the Spokesman for the Secretary-General on the situation in Ukraine – release of OSCE monitors and the violence in Odessa of 3.05.2014, http://www.un.org/sg/statements/index.asp?nid=7644 [accessed: 12.03.2016].

[35] Statement Attributable to the Spokesperson for the Secretary-General on the situation in Ukraine of 28.04.2014, http://www.un.org/sg/statements/index.asp?nid=7630 [accessed: 12.03.2016].

[36] Statement attributable to the Spokesman for the Secretary-General on violence in Ukraine of 14.06.2014, http://www.un.org/sg/statements/index.asp?nid=7783 [accessed: 12.03.2016].

[37] Statement attributable to the Spokesman for the Secretary-General on Ukraine of 27.06.2014, http://www.un.org/sg/statements/index.asp?nid=7823 [accessed: 12.03.2016].

[38] Statement Attributable to the Spokesman for the Secretary-General on Ukraine 17.04.2014 // http://www.un.org/sg/statements/index.asp?nid=7605 [accessed: 12.03.2016].

[39] Statement Attributable to the Spokesperson for the Secretary-General on Ukraine of 20.01.2014 http://www.un.org/sg/statements/index.asp?nid=7414 [accessed: 12.03.2016].

[40] Statement attributable to the Spokesperson for the Secretary-General on the situation in Ukraine of 18.02.2014 http://www.un.org/sg/statements/index.asp?nid=7466 [accessed: 12.03.2016].

[41] Statement Attributable to the Spokesperson for the Secretary-General on Ukraine of 19.02.2014 http://www.un.org/sg/statements/index.asp?nid=7468 [accessed: 12.03.2016].

[42] Statement attributable to the Spokesperson for the Secretary-General on Ukraine of 1.03.2014 http://www.un.org/sg/statements/index.asp?nid=7492 [accessed: 12.03.2016].

[43] Statement Attributable to the Spokesman for the Secretary-General on Ukraine of 17.03.2014 http://www.un.org/sg/statements/index.asp?nid=7528 [accessed: 12.03.2016].

[44] Statement Attributable to the Spokesperson for the Secretary-General on Ukraine of 12.04.2014 http://www.un.org/sg/statements/index.asp?nid=7596 [accessed: 12.03.2016].

[45] Support group for Ukraine 9.04.2014 http://ec.europa.eu/avservices/video/player.cfm?ref=I088520.

[46] Ban Ki-Moon calls for mobilisation against violent extremism, http://assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=5670&lang=2&cat=8 [accessed: 12.03.2016].

[47] Statement attributable to the Spokesman for the Secretary-General on Ukraine, http://www.un.org/sg/statements/index.asp?nid=8906 [accessed: 12.03.2016].

[48] Ukraine: Alarmed by surging violence, UN rights chief urges greater effort to resolve crisis, http://www.un.org/apps/news/story.asp?NewsID=47731 [accessed: 12.03.2016].

[49] UN rights chief urges all sides in eastern Ukraine to ‘turn away from destructive path’, http://www.un.org/apps/news/story.asp?NewsID=48203#.U8X8YNG84n4 [accessed: 12.03.2016].

[50] Report on the human rights situation in Ukraine of 15.04.2014, http://www.ohchr.org/Documents/Countries/UA/Ukraine_Report_15April2014.doc [accessed: 12.03.2016].

[51] Report on the human rights situation in Ukraine of 15.05.2014, http://www.ohchr.org/documents/countries/ua/hrmmureport15may2014.pdf [accessed: 12.03.2016].

[52] Report on the human rights situation in Ukraine of 15.06.2014, http://www.ohchr.org/Documents/Countries/UA/HRMMUReport15June2014.pdf [accessed: 12.03.2016].

[53] ‘Report on the human rights situation in Ukraine 16 February to 15 May 2015’ of 15.05.2015 http://reliefweb.int/sites/reliefweb.int/files/resources/10th HRMMU report - Ukraine - 1 June 2015.pdf [accessed: 12.03.2016].

[54] Ukraine: UN agency begins cash assistance programme to meet food needs in crisis-torn eastern areas, http://www.un.org/apps/news/story.asp?NewsID=51628#.Vc3YJf4w_DA [accessed: 12.03.2016].

[55] Ukraine: UNICEF appeals for help to restore damaged water facilities for 1.3 million people, http://www.un.org/apps/news/story.asp?NewsID=51418#.Vc3YNv4w_DA [accessed: 12.03.2016].

[56] Different forms of the OSCE engagements with Ukraine on 5.09.2014, http://www.osce.org/home/116922?download=true [accessed: 12.03.2016].

[57] Press Statement by the Trilateral Contact Group of 4.10.2014, http://www.osce.org/home/120863 [accessed: 12.03.2016].

[58] Ukraine crisis tops agenda of OSCE annual conference in Vienna, http://www.osce.org/cio/120121 [accessed: 12.03.2016]; Swiss Chair discusses next steps in implementing peace plan and calls for reconsolidating European security during visit in Vienna, http://www.osce.org/cio/120170 [accessed: 12.03.2016].

[59] Declaration on the Tragic crash of the Malaysia airlines flight MH17 in Ukraine OSCE Permanent Council PC.DOC/2/14, 18.07.2014, http://www.osce.org/pc/121427?download=true [accessed: 12.03.2016].

[60] Daily updates from the Special Monitoring Mission to Ukraine, http://www.osce.org/ukraine-smm [accessed: 12.03.2016].

[61] Geneva Statement on Ukraine of 17.04.2014, http://www.washingtonpost.com/world/joint-geneva-statement-on-ukraine-from-april-17-the-full-text/2014/04/17/89bd0ac2-c654-11e3-9f37-7ce307c56815_story.html [accessed: 12.03.2016]

[62] Press Statement by the Trilateral Contact Group of 4.10.2014, http://www.osce.org/home/122142 [accessed: 12.03.2016].

[63] See e.g. reports of 12.09.2014; 1.10.2014, 8.10.2014 – OSCE Observer Mission at the Russian Checkpoints Gukovo and Donetsk, http://www.osce.org/om [accessed: 12.03.2016].

[64] North Atlantic Council Statement on the Situation in Ukraine, Press Release (2014) 033, issued 2.03.2014, http://www.nato.int/cps/en/natolive/official_texts_107681.htm [accessed: 12.03.2016].

[65] NATO leaders pledge support to Ukraine at Wales Summit, 4.09.2014, http://www.nato.int/cps/en/natohq/news_112459.htm [accessed: 12.03.2016]

[66] NATO Secretary General on the reported elections in Crimea, Ukraine, Press Release (2014) 133 of 16.09.2014, http://www.nato.int/cps/en/natohq/news_113094.htm [accessed: 12.03.2016].

[67] NATO Secretary General condemns entry of Russian convoy into Ukraine, Press Release (2014) 125, issued on 22.08.2014, http://www.nato.int/cps/en/natohq/news_112112.htm [accessed: 12.03.2016].

[68] NATO Secretary General Statement after the extraordinary meeting of the NATO-Ukraine Commission, Press Release (2014) 129, issued on 29.08.2014, http://www.nato.int/cps/en/natohq/news_112210.htm [accessed: 12.03.2016].

[69] Joint Press Conference by NATO Secretary General Anders Fogh Rasmussen and the President of Ukraine, Petro Poroshenko during the NATO Summit held in Newport, Wales, 5.09.2014, http://www.nato.int/cps/en/natohq/opinions_112483.htm [accessed: 12.03.2016].

[70] NATO Secretary General statement on the crash of Malaysia Airlines aircraft, Press Release (2014) 111, issued on 17.07.2014, http://www.nato.int/cps/en/natolive/news_111773.htm [accessed: 12.03.2016].

[71] NATO allies and partners discuss Ukraine crisis, http://www.nato.int/cps/en/natohq/news_118114.htm [accessed: 12.03.2016].

[72] Joint Statement of the Ukraine-NATO Commission 13.05.2015, http://www.nato.int/cps/en/natohq/official_texts_119425.htm [accessed: 12.03.2016].

[73] G. Nolte, Intervention by Invitation, Max Plank Encyclopedia of International Law, http://www.auswaertiges-amt.de/cae/servlet/contentblob/582686/publicationFile/156225/NolteInterventionInvitation.pdf [accessed: 12.03.2016], para. 2.

[74] Cited by C. Walter, Security Council Control over Regional Action, 1 Max Plank Yearbook of the United Nations Law 129 (1997), pp. 150–152.

[75] In support of this point, see Walters, supra note 74, p. 147; R. Jennings, A. Watts (eds.), Oppenheim’s International Law, 9th ed., vol. 1, Longman, Harlow: 1992, p. 437–438.

[76] See also J.A. Frowein, N. Krisch, Article 42, The Charter of the United Nations: A Commentary in 2 vol., B. Simma (ed.), Vol. 1, München: 2002, p. 754.

[77] On the meeting of the CSTO Permanent Council on the situation in Ukraine, http://www.odkb-csto.org/news/detail.php?ELEMENT_ID=3258&SECTION_ID=91 [accessed: 12.03.2016].

[78] In the course of the Informal meeting of the CSTO Heads of States in Moscow, 8.05.2014, Presidents observed training of control over military forces of Russian Federation, discussed enhancement of security within the CSTO and crisis in the Ukraine, http://www.odkb-csto.org/news/detail.php?ELEMENT_ID=3407&SECTION_ID [accessed: 12.03.2016].

[79] N. Bordjuzha, Participation of Ukraine in the CSTO will provide it with feasible advantages, http://www.odkb-csto.org/presscenter/detail.php?ELEMENT_ID=3495 [accessed: 12.03.2016].

[80] Statement of the CSTO Secretary General N. Bordjuzha on the situation in Ukraine, http://www.odkb-csto.org/news/detail.php?ELEMENT_ID=3254&SECTION_ID=91g [accessed: 12.03.2016].

[81] Commentary of the CSTO Secretary General N. Bordjuzha concerning tragedy in Lugansk, http://www.odkb-csto.org/news/detail.php?ELEMENT_ID=3443&SECTION_ID=91 [accessed: 12.03.2016].

[82] Statement of the Heads of States of the Collective Security Treaty Organization of 23.12.2014, http://www.odkb-csto.org/news/detail.php?ELEMENT_ID=4227&SECTION_ID= [accessed: 12.03.2016]

[83] Ukraine. Council of Europe threatens with sanctions, http://eastbook.eu/en/2012/01/material-en/information-material-en/ukraine-council-of-europe-threatens-with-sanctions/ [accessed: 12.03.2016].

[84] Reconsideration on substantive grounds of the previously ratified credentials of the Russian Delegation. Resolution 1990(2014), http://www.voltairenet.org/article183239.html [accessed: 12.03.2016]; Russian Delegation suspended from Council of Europe over Crimea, http://www.theguardian.com/world/2014/apr/10/russia-suspended-council-europe-crimea-ukraine [accessed: 12.03.2016].

[85] Votes on Resolution 1990(2014) of 1.03.2014, http://assembly.coe.int/nw/xml/Votes/DB-VotesResults-EN.asp?VoteID=35016&DocID=15085&MemberID=PACE [accessed: 12.03.2016].

[86] Council of Europe pledges continued support to Ukraine, http://www.neurope.eu/article/council-europe-pledges-continued-support-ukraine [accessed: 12.03.2016].

[87] Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations A/res/25/2625 of 24.10.1970, http://www.un-documents.net/a25r2625.htm [accessed: 12.03.2016].

[88] Challenge, on substantive grounds, of the still-unratified credentials of the delegation of the Russian Federation, PACE resolution 2034(2015), http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=21538&lang=en [accessed: 12.03.2016].

[89] PACE strips Russia of voting rights until April over Ukraine, Russia quits for 1 year, http://rt.com/news/227107-pace-resolution-against-russia/ [accessed: 12.03.2016].

[90] Russian delegation left PACE until the end of 2015, http://lenta.ru/news/2015/01/28/leavepase/ [accessed: 12.03.2016].

[91] EU Ambassador in Moscow asks Russia not to hurry to leave PACE, http://tass.ru/en/world/772676 [accessed: 12.03.2016]; Consideration of the annulment of the previously ratified credentials of the delegation of the Russian Federation (follow-up to paragraph 16 of Resolution 2034 (2015)), Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe, http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=21801&lang=en [accessed: 12.03.2016].

[92] Statements of the Heads of States or Governments on Ukraine, 6.03.2014, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/141372.pdf [accessed: 12.03.2016].

[93] Press Release from the 3312th Council Meeting, 12.05.2014, Foreign Affairs, http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/EN/foraff/142563.pdf [accessed: 12.03.2016].

[94] Statement of the Heads of State or Government on Ukraine of 27.05.2014, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/142863.pdf [accessed: 12.03.2016].

[95] European Council Conclusions. Ukraine, 27.06.2014, http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/143419.pdf [accessed: 12.03.2016].

[96] European Union. Restrictive measures in Force as for 2.09.014, http://eeas.europa.eu/cfsp/sanctions/docs/2014_05_26-measures-in-force_en.pdf [accessed: 12.03.2016].

[97] Ibidem.

[98] Declaration by the High Representative on behalf of the European Union on the alignment of certain third countries with the Council Decision 2014/308/CFSP amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine of 7.07.2014, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/143686.pdf [accessed: 12.03.2016].

[99] Support Group for Ukraine, 9.04.2014, http://ec.europa.eu/avservices/video/player.cfm?ref=I088520 [accessed: 12.03.2016].

[100] EU-Ukraine Association Agreement. The complete texts, http://eeas.europa.eu/ukraine/assoagreement/assoagreement-2013_en.htm [accessed: 12.03.2016].

[101] Joint conclusions. High-Level Meeting on Ukraine: coordinating and implementing the international support, 8.07.2014, http://europa.eu/rapid/press-release_MEMO-14-469_en.htm [accessed: 12.03.2016].

[102] Joint Statement of the 17th EU-Ukraine Summit of 27.04.2015, http://ec.europa.eu/news/pdf/joint_statement.pdf [accessed: 12.03.2016].

[103] Increased EU support for the OSCE’s work in Ukraine. Press Release of 23.05.2014, http://eeas.europa.eu/statements/docs/2014/140523_03_en.pdf [accessed: 12.03.2016].

[104] Geneva Declaration on Ukraine, 17.04.2014, http://news-mail.by/2014/04/18/zheneva-deklaraciya-po-situacii-na-ukraine-polnyj-tekst-17-04-2014-ukraina-russkayavesna/ [accessed: 12.03.2016].

[105] Auseinandersetzung im Bündnis: Steinmeier gegen Nato-Mitgliedschaft der Ukraine, http://www.spiegel.de/politik/deutschland/ukraine-krise-steinmeier-gegen-nato-mitgliedschaft-der-ukraine-a-1004525.html [accessed: 12.03.2016].

[106] Germany’s Merkel Dashes Ukraine’s EU Membership Hopes Visa waivers also not expected to be introduced at the coming Riga summit, http://www.wsj.com/articles/germanys-merkel-dashes-ukraines-eu-membership-hopes-1432199190 [accessed: 12.03.2016].

[107] UN Security Council meeting 7400 of 6.03.2015, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7400 [accessed: 12.03.2016].

[108] The humanitarian situation of Ukrainian refugees and internally displaced persons, PACE resolution 2028(2015) of 27.01.2015, http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=21480&lang=en [accessed: 12.03.2016].

[109] Speech of the representative of the UNHRC in Belarus at the conference 70 years of the UN Z. Golovneva, Minsk 27.05.2015

[110] Speech of Michael Kowalsky at the “The case of Crimea” conference, Warsaw, 18–20.03.2015

[111] Ban Ki-Moon calls for mobilization against violent extremism, http://assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=5670&lang=2&cat=8 [accessed: 12.03.2016]

The Relationship between State and Individual Responsibility for the Annexation of Crimea
Beatrice I. Bonafè[*]

doi: 10.7366/9014Crimea14

Introduction

The facts characterising the March 2014 situation in Crimea offer an opportunity to test the legal relationship between state and individual responsibility under international law for a crime, the crime of aggression, which has seldom been the object of judicial assessment. The main purpose of this contribution is to inquire whether individual criminal responsibility would automatically flow from the establishment of state responsibility for the same facts, or whether the two regimes can still be considered separate.

As a starting point it will be assumed that state and individual responsibility for international crimes originate from the same primary rules, but are governed by different sets of secondary rules. In other words, the two regimes of international responsibility can be regarded as separated, even though they are complementary.[1] This separation has recently been restated by the International Court of Justice (ICJ) in the Croatia v. Serbia case with respect to the crime of genocide: “State responsibility and individual criminal responsibility are governed by different legal regimes and pursue different aims”.[2] In particular, the Court accepted that state responsibility can be established, not only when individual criminal responsibility of state organs has already been established before an international criminal tribunal, but also in the absence of previous convictions of state organs in respect of the same facts.[3] It seems reasonable to apply the same conclusion to the establishment of individual criminal responsibility: the author of an international crime can be convicted independently from the prior establishment of state responsibility in respect of the same facts.

Whether the same holds true with respect to the crime of aggression, a crime that entails particularly close ties between state and individual responsibility, may be more contentious. However, it will be maintained that, even with respect to the crime of aggression, state and individual responsibility maintain a certain separation. The degree of overlap or separation between the two regimes of international responsibility will be determined by taking account of a number of legal requirements necessary in assessing state and individual responsibility for aggression.

1. The existence of a state act of aggression

A clear overlap between state and individual responsibility for aggression derives from the fact that both share a common requirement, that is, the existence of a state act of aggression. Indeed, under international criminal law, the crime of aggression is defined in terms of state action.

The case law of the international military tribunal established after World War II and more specifically responsible for the famous Nuremberg and Tokyo judgments,[4] as well as of the criminal courts operating under Control Council Law n. 10,[5] shows that prosecution for aggression has always had to deal with acts committed by states, i.e. Germany and Japan, against other states. The Draft Code of crimes against the peace and security of mankind, adopted by the International Law Commission (ILC) in 1996, defined crimes against peace in its Article 16, as acts of “aggression committed by a state” and the ILC commentary explained: “Individual responsibility for such a crime is intrinsically and inextricably linked to the commission of aggression by a State. The rule of international law which prohibits aggression applies to the conduct of a State in relation to another State. Therefore, only a State is capable of committing aggression by violating this rule of international law which prohibits such conduct. […] The words ‘aggression committed by a State’ clearly indicate that such a violation of the law by a State is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression.”[6] More recently, under Art. 8 bis, para. 2, of the Statute of the International Criminal Court (ICC), a suspect can be charged with the crime of aggression if an “act of aggression” has been carried out, that is “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”.

This pre-requisite clearly points to a close connection between state and individual responsibility when compared with the situation applying to other international crimes that do not require the underlying conduct to be characterised as “state” conduct. Indeed, the list of acts that “shall qualify […] as acts of aggression” under Article 8 bis, para. 2, is taken from Article 3 of General Assembly Resolution 3314 (XXIX) of 1974, which defines aggression for the purposes of state responsibility. Nevertheless, individual criminal responsibility does not flow automatically from the commission of a state act of aggression.

As far as the material element of the crime of aggression is concerned, it is generally required that the conduct amounting to aggression reaches a certain threshold of seriousness before individual criminal responsibility starts to be entailed. This requirement was implicit in the case law concerning acts of aggression committed during World War II, as both the Nuremberg and the Tokyo judgments dealt with full-scale wars of aggression. Similarly, a seriousness threshold was implicit in the ILC Draft Code of 1996. In the commentary on Article 16, the Commission clarified that: “The action of a State entails individual responsibility for a crime of aggression only if the conduct of the State is a sufficiently serious violation of the prohibition contained in Article 2, paragraph 4, of the Charter of the United Nations.”[7]

By contrast, the Rome Statute is explicit in that regard. Article 8 bis, para. 1, limits individual criminal responsibility to acts of aggression “which, by [their] character, gravity and scale, constitute a manifest violation of the Charter of the United Nations”.[8] Unfortunately, the Elements of Crimes do not specify the degree of seriousness required for a certain conduct to be regarded as a “manifest” violation of the Charter in line with the criteria of “character, gravity and scale”. They merely add that the term “manifest” implies “an objective qualification”. The formulation of this compromise solution seems intended to limit individual criminal responsibility to the most serious acts of aggression, so that the criminalisation of aggression would satisfy the principle of legality.[9] In any case, it would leave the ICC with a certain margin of appreciation in determining what constitutes a serious act of aggression. Arguably, the Court should be guided by the judicial decisions adopted at the end of World War II.[10]

Turning to the legal characterisation of the Russian intervention in the territory of Ukraine that led to the annexation of Crimea, the first step would be to establish whether it does amount to an act of aggression. This matter has been dealt with extensively elsewhere in this volume[11], so I would just briefly mention the main options. The most straightforward option would be to qualify Russian conduct as “annexation by the use of force of the territory of another State or part thereof”, in the meaning of Article 8 bis, para. 2(a), of the Rome Statute. In the alternative, the conduct of the armed groups – later recognised as acting on behalf of Russia – that blocked key sites in Crimea, that of the Russian Fleet that imposed a naval blockade on Crimea, and that of Russian troops who seized Ukrainian military bases and forcefully took over border posts could be qualified as an act of aggression under Article 8 bis, para. 2(c) – i.e. as naval blockade –, and/or under Article 8 bis, para. 2(e) – i.e. as use of armed forces in contravention of the conditions provided for in the 1997 agreement between Ukraine and Russia –, and/or under Article 8 bis, para. 2(g) – i.e. as sending armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State.

Therefore, assuming that the act of aggression can be established, the second step would be to take into account the degree of seriousness necessary for the pre-requisite as regards the assessment of individual criminal responsibility to be considered. One might argue that conduct falling under the purview of Resolution 3314 would necessarily be included among the “most serious and dangerous form[s] of the illegal use of force” as stated in the preamble to that Resolution. Even if the degree of seriousness were a separate requirement, as apparently indicated in the ICC Elements of Crimes, Russian conduct leading to the annexation of Crimea could still be considered one of the most serious uses of force in violation of the United Nations Charter. The fact that, according to President Putin, before the annexation “there was not a single armed confrontation in Crimea and no casualties”[12] does not imply that this conduct cannot attract individual criminal responsibility. Suffice it to recall that, with respect to the annexation of Austria by the Third Reich, the IMT judgment held that the absence of armed resistance was “really immaterial, for the facts plainly prove that the methods employed to achieve the object were those of an aggressor”[13]. More generally, the German High Command judgment considered that “an invasion of one state by another is the implementation of the national policy of the invading state by force even though the invaded state, due to fear or a sense of the futility of resistance in the face of superior force, adopts a policy of non-resistance and thus prevents the occurrence of any actual combat”.[14] Accordingly, such acts of annexation could entail individual criminal responsibility.

The issue of the possible grounds that can be invoked by the accused for excluding criminal responsibility connects closely with that of the definition of the material element of the crime of aggression. The main question is whether “state” self-defence, as opposed to “individual” self-defence, could be invoked by the accused to justify its conduct. If self-defence prevents a certain use of force being qualified as an act of aggression,[15] it seems logical that both state and individual responsibility be excluded for conduct which is lawful under international law. This ground for excluding criminal responsibility is not mentioned in the ICC Statute, but does not seem to be precluded either. Article 31 of the ICC Statute does not provide for an exhaustive list of defences and, pursuant to para. 3, the Court may consider other defences provided under international law. This provision would allow the Court to consider “state” self-defence as a valid ground for excluding criminal responsibility. On the other hand, this would ensure that a certain conduct be regarded consistently as lawful under international law, for the purposes of both state and individual responsibility. Therefore, with respect to the annexation of Crimea, one can assume that a Russian accused charged with the crime of aggression might be able to invoke grounds excluding criminal responsibility not expressly provided for in Article 31, such as state self-defence.

In any case, this confirms the partial overlap between state and individual responsibility as they derive from violations of international law that should be established consistently for the purpose of the application of both regimes. This does not yet imply that the individuals who have contributed to the commission of a crime of aggression can be found guilty of that crime.

2. Personal criminal responsibility and the mens rea requirement

In general terms, state responsibility is a form of collective responsibility, and it differs profoundly from the individual criminal responsibility resting on the personal culpability of the accused. States incur responsibility for the acts or omissions attributable to the state machinery as a whole, be these derived from the conduct of individual state organs, or from a group of state organs whose members need not necessarily be identified with precision. By contrast, individual criminal responsibility is personal, and an accused can only be convicted if it is proved that he or she has committed the given crime personally and intentionally. With respect to the crime of aggression, this distinction arises from two main elements.

The first one is the mens rea requirement of the crime of aggression. According to the ICC Elements of Crime, “the perpetrator [shall be] aware of the factual circumstances that established that [the] use of armed force” amounted to an act of aggression. In particular, no specific intent is necessary to hold the perpetrator criminally accountable for aggression. Case law may not be abundant, but it is consistent in that regard. Neither the IMT judgment nor the other decisions adopted in the aftermath of World War II have ever required anything like special intent or, as it has been called, an animus aggressionis.[16]

The two responsibility regimes thus remain distinct, and, to hold a state responsible, it is sufficient to show that an act of aggression has taken place. On the other hand, to convict a person charged with aggression, the prosecution needs to show that the accused had knowledge of the fact that he or she was “planning, preparing, initiating or executing” an act of aggression. While state responsibility for aggression can be proved in an objective manner, to hold a state military or political leader accountable for this crime requires the proof of his or her mens rea. In addition, the accused may always invoke particular defences precluding his/her possession of the requisite mens rea at the time of commission of the crime, in order to escape culpability.

In principle, the mens rea of the accused is to be determined from his words and deeds, and should be evident from patterns of purposeful action. However, it must be admitted that, where what a person says or does still leaves his/her intention unclear, the psychological element can also be established by taking elements of the general criminal context into account. The surrounding context (of state aggression) will thus prove significant as efforts are made to establish the knowledge of leaders. Accordingly, state and individual responsibility may also tend to overlap with respect to this element. However, international case law has recalled that the use of the general criminal context to determine the intent of an accused should always be counterbalanced with the latter’s actual conduct.[17] In other words, the mens rea element remains a distinguishing feature of individual criminal responsibility.

Those principles would apply to the case of the annexation of Crimea. Assuming that it is proved that the state, i.e. Russia, has committed a serious act of aggression, and that the general criminal context can be taken into account in determining the mens rea of the accused, this requirement remains particularly difficult to prove with respect to the crime of aggression. Suffice it to recall the Roechling case, and the appeals decision of the French Superior Military Government Court recognising the leading position of Hermann Roechling – who was at the head of one of the largest ironworks in the Saar, who was capable of dictating decisions vis-à-vis the armaments economy, and who became president of the Reich Iron Association and was Reich Plenipotentiary with authority over all countries occupied by the Third Reich. It was held at the same time that there was insufficient evidence to show that “participation in the rearmament was carried out with the intention and aim of permitting an invasion of other countries or a war of aggression in violation of international law or of international agreements”.[18]

3. Aggression as a leadership crime

The second element allowing a distinction to be drawn between state and individual responsibility for the crime of aggression concerns an additional requirement limiting the scope of individual criminal responsibility considerably. Aggression is considered a “leadership crime” which, in the words of Article 8 bis of the ICC Statute, can only be committed by “a person in a position effectively to exercise control over or to direct the political or military action of a State”.[19] There may well therefore be cases in which a state could be responsible for an act of aggression, but no individual can be found guilty for that conduct because either the suspects involved are not state leaders, or the involvement of state leaders cannot be proved. This again confirms the separation of the two regimes of international responsibility.

First, the jurisprudence of the IMT and IMTFE, as well as that of subsequent Nuremberg trials, is consistent in precluding any assignment of accountability to low-ranking officials taking part in the preparation for, or even waging, aggressive war. This does not denote that the distinction between leaders and followers is always easy. However, while the IMT judgment considered that Hitler alone could not have made aggressive war, and that statesmen, military leaders, diplomats and businessmen putting his plan into effect should not therefore avoid responsibility,[20] it tried only those individuals who were in control and who had established German aggressive policy. On the other hand, successive trials had to deal with the same offences, but with defendants who were neither major war criminals nor private individuals. Occupation Tribunals were thus left with the task of clarifying where the accountability line had to be drawn: “Somewhere between the Dictator and Supreme Commander of the Military Forces of the nation and the common soldier is the boundary between the criminal and the excusable participation in the waging of an aggressive war by an individual engaged in it”.[21] In the Farben case, the Tribunal held that it was not possible to depart from the concept that only “major war criminals” may be held liable for waging wars of aggression; otherwise, the result would be the possibility of collective guilt and mass punishments.[22] “The participation [of the defendants] was that of followers and not leaders. If we lower the standard of participation to include them, it is difficult to find a logical place to draw the line between the guilty and the innocent among the great mass of German people.”[23]

Consequently, jurisprudence has attempted to determine who are the “state leaders” that may be held accountable for the crime of aggression. If “high public officials in the civil government or high military officers”[24] can certainly be included in that notion, some cases have tried to spell out the basic criterion for limiting individual criminal responsibility to a narrow group of persons. “It is not a person’s rank or status, but his power to shape or influence the policy of his State, which is the relevant issue for determining his criminality under the charge of Crimes against Peace. International Law condemns those who, due to their actual power to shape and influence the policy of their nation, prepare for, or lead their country into or in an aggressive war. But we do not find that, at the present stage of development, International Law declares as criminals those below that level who, in the execution of this war policy, act as the instruments of the policy makers.”[25] Both the ILC Draft Code and ICC Statute rely on a similar notion of “leadership crime”.[26]

On the other hand, this limited scope of application of the crime of aggression does not seem to preclude economic leaders being held accountable under a charge of aggression. The Krupp case made it clear that industrialists could be found guilty of crimes against peace.[27] However, this case and others in which the defendants were not state officials show how difficult it can be to prove that, despite their position, economic actors possessed the required mens rea. Today, it seems that the formulation of Article 8 bis of the ICC Statute might be applicable to those economic actors “in a position effectively to exercise control over or to direct the political or military action of a State”.

So conceived, the “leadership” requirement allows us to keep separate a collective form of responsibility such as state responsibility from the personal form of criminal responsibility for aggression that applies to a limited group of perpetrators. At the same time, this requirement would generally entail an overlap between state and individual responsibility. In fact, individual criminal liability would be largely proven by the general criminal context, the same that serves to establish state responsibility. In addition, the crime of aggression would generally be committed by a group of perpetrators and, in order to prove their influence over the decision to initiate and wage an aggressive war, the prosecution would most likely rely on collective modes of liability that reflect the participation of “state leaders”. Thus, modes of liability, such as joint criminal enterprise, will arguably play a crucial role, and attribution to a state leader of individual criminal responsibility for aggression would only be possible by focusing on the global criminal conduct that the material perpetrators have engaged in, in the furtherance of a common criminal design, or under the supervision of military or political superiors. That will inevitably bring the establishment of state and individual responsibility closer.

The Russian annexation of Crimea first of all raises the issue of the link capable of being established between the armed forces that carried out the takeover of key sites in Crimea, the naval blockade, and the seizure of military bases and border posts, and the persons who might have decided on such a recourse to armed force. In addition, prosecution should identify the “state leaders” who might be charged with the crime of aggression. A recent interview given by President Vladimir Putin seems to shed some light on those events.[28] It appears that he revealed having given the order to initiate the military takeover of Ukraine’s Crimea Peninsula weeks before the referendum that the Kremlin offered as endorsement for the annexation was held. Accordingly, it would be difficult to deny that “the top person in the government”, as President Putin defined himself, was involved in the military intervention. However, it is unclear who else was in a position to direct the political and military action of the state effectively. The actual role in the annexation of Crimea played by state leaders thus remains a matter of conjecture.

4. Different standards of proof

Finally, the prohibition of aggression raises an interesting question as to the standard of proof required to establish, on the one hand, state responsibility, and, on the other, individual criminal liability.

Under international criminal law, a “beyond any reasonable doubt” standard is to be applied. This corresponds to the basic guarantee of the accused provided under the principle of the presumption of innocence.[29] As no similar fundamental guarantee exists with respect to states, a lower standard of proof might in principle be deemed perfectly appropriate. This would again confirm a distinction between the two regimes. Thus, in respect of aggression, conviction or acquittal of the accused must rest on such a “beyond any reasonable doubt” standard of proof, while the establishment of state responsibility may be made in line with, for example a “sufficient” or “conclusive evidence” standard of proof.

Unfortunately, the jurisprudence of the ICJ is quite ambiguous in the above regard. Throughout its case law, the Court has applied varying standards of proof,[30] and it is difficult to predict what standard the Court would apply to the commission of an act of aggression. Two cases particularly relevant on account of their subject matter are disputes in which the main allegations revolved around acts in breach of the prohibition of the use of force. In Nicaragua, the Court essentially applied a “convincing evidence” standard,[31] whereas in Oil Platforms it required that evidence be “conclusive”.[32] In Nicaragua, the Court also affirmed that “the use of the term ‘satisfy itself’ in the English text of the Statute (and in the French text the term ‘s’assurer’) implies that the Court must attain ‘the same degree of certainty as in any other case’ that the claim of the party appearing is sound in law, and, so far as the nature of the case permits, that the facts on which it is based are supported by convincing evidence”.[33] One might be tempted to conclude that the standard of proof required to establish the commission of a state act of aggression is lower than that applying in international criminal law.

However, the ambiguity of the Court’s approach in this matter arises from the fact that in a previous case that touched upon the use of force – the Corfu Channel case – it held that charges of exceptional gravity “require a degree of certainty that has not been reached here” because proofs could not be regarded as “conclusive evidence”.[34] Notwithstanding the fact that in that case the “conclusive evidence” standard was not relied upon in establishing Albania’s responsibility for those serious allegations, more recent case law has referred to the Corfu Channel decision in order to infer that a distinction should be made between a higher standard of proof applicable to the determination of serious allegations and a lower standard of proof applicable to less-serious allegations. Notably, in two judgments concerning the application of the Genocide Convention, the Court interpreted the Corfu Channel decision as requiring a “fully conclusive evidence” standard of proof in the case of serious allegations.[35] In particular, the Court seemed to rely on the “fully conclusive evidence” standard for the establishment of the material element of genocide,[36] and on the “only reasonable inference” standard – substantially corresponding to the “beyond reasonable doubt standard”[37] – for the establishment of the genocidal specific intent.[38]

This jurisprudence is particularly relevant as the issue of the standard of proof applicable to the judicial establishment of the annexation of Crimea is addressed, along with its relationship to the determination of individual criminal responsibility for the same conduct. The main question is whether the responsibility of Russia should be established in line with the same standard of proof as is applicable to individual criminal responsibility, or whether a lower standard would be sufficient. By virtue of the ICJ case law, we can assume that an allegation of aggression would be treated as a “charge of exceptional gravity”, denoting that a “fully conclusive” standard of proof should be applied. On the other hand, aggression does not require a “specific intent” element to be met; and arguably the establishment of the commission of an act of aggression would not require a “beyond any reasonable doubt” standard.[39] Thus, a separation in the establishment of state and individual responsibility for aggression can still be maintained.

This solution seems first and foremost warranted by precedent decisions of the ICJ concerning the use of force that did not apply a special standard of proof to the establishment thereof; and also by the rationale underpinning the application of a “beyond reasonable doubt” in international criminal law that would not apply to the establishment of state responsibility. A cautious approach towards an undue extension of the standard of proof typical of international criminal law in matters of state responsibility seems even more appropriate when it is noted how inconsistent in this regard the judicial practice of international courts has been. If some courts have adopted the standard of proof according to the degree of seriousness of the allegation concerned,[40] other tribunals have clearly rejected this approach.[41]

Conclusions

As it is admittedly most likely that the annexation of Crimea will never be the object of judicial scrutiny, the matter of the state responsibility and individual criminal liability may well remain in the realm of conjecture. However, this does not preclude the maintenance, at least in principle, of a certain distinction between state responsibility and state leaders’ criminal liability under international law.

One the one hand, state and individual responsibility for aggression appear closely connected, as the same (state) conduct lies at the origin of both sets of secondary rules. Thus, the responsibility of both Russia and Russian leaders would above all depend on the possibility of the takeover of Crimea being characterised as a serious breach of the prohibition on the use of force set out in Article 2, para. 4, of the UN Charter. On the other hand, a number of specific requirements show that individual criminal responsibility would not automatically flow from the commission of a state act of aggression. In particular, the seriousness requirement, the position as state leader, and the mens rea of the accused are all requirements applicable in a criminal trial, while they need not be taken into account as state responsibility for the same conduct is determined. Similarly, the standard of proof applicable to the establishment of individual criminal responsibility is different from that required under state responsibility. Assuming that Russia’s responsibility for the annexation of Crimea can be established, the determination of the individual guilt of state leaders can still be seen as separate from state responsibility, as it would take place in line with the specific requirements of international criminal law.

International criminal law can thus be regarded as retaining its autonomy with respect to state responsibility, even where a crime that is defined in terms of state action is concerned. The opposite may not be necessarily true. To a certain extent, the establishment of individual criminal responsibility for aggression would imply state responsibility, at least when a state organ is on trial. Assuming that a political or military leader is convicted for the crime of aggression, it means in principle that the two requirements of state responsibility – the breach of an international obligation and attribution of that violation to a state – are met. Accordingly, the establishment of individual criminal responsibility may have significant implications for the establishment of state responsibility for aggression. But admittedly the same conclusion may apply to other international crimes, as the ICJ case law on state responsibility for genocide confirms.

Ultimately, autonomy of state responsibility with respect to international criminal law would depend on the possibility for consequences of the two responsibility regimes to be kept separate. In other words, if individual criminal liability is not to be viewed as a special punishment for states committing international crimes, and if individual criminal liability is not to be regarded as a substitute for the ordinary consequences of the regime of state responsibility, then the latter can still be regarded as an autonomous regime with respect to international criminal law. If we assume, for the sake of argument, that a Russian state leader is convicted over the annexation of Crimea, then despite the implications thereof for the establishment of Russia’s responsibility for those acts, that responsibility can still be regarded as governed by a separate regime of international responsibility, provided that the punishment of the given state leader does not preclude application of the typical consequences of state responsibility. International practice relating to World War II, as well the recent, aforementioned case law of the ICJ both suggest that the conviction of state organs for international crimes would in no way prevent an injured state from seeking satisfaction or reparation.

Abstract: The facts characterising the March 2014 situation in Crimea offer an opportunity to test the legal relationship between state and individual responsibility under international law for a crime, the crime of aggression, which has seldom been the object of judicial assessment. The author takes account of a number of legal requirements necessary in assessing state and individual responsibility for aggression and maintains that, even with respect to the crime of aggression, state and individual responsibility remain separated at least as far as secondary rules are concerned.

Keywords: aggression, Crimea, state responsibility, individual criminal responsibility.

[*] Beatrice I. Bonafè, Associate Professor of International Law, Sapienza University of Rome.

[1] For a detailed analysis in this regard, see B.I. Bonafè, The Relationship between State and Individual Responsibility for International Crimes, Martinus Nijhoff, Leiden–Boston: 2009.

[2] ICJ, Application of the Convention on the prevention and punishment of the crime of genocide (Croatia v. Serbia), Judgment, 3 February 2015, para. 129 (available at www.icj-cij.org).

[3] Ibidem, para. 128.

[4] The Nuremberg judgment of the International Military Tribunal (IMT) of 1 October 1946 is reprinted in the American Journal of International Law (1947), p. 172ff. The Tokyo judgment of the International Military Tribunal for the Far East (IMTFE) of 4 November 1948 is available at crimeofaggression.info/resourcessearch/historic-documents [accessed: 23.11.2015].

[5] See in particular the decision in the Ministries case, in: Trials of War Criminals before the Nurnberg Military Tribunals under Control Council Law N. 10, Washington D.C., US Government Printing Office, vol. XIV, https://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-XIV.pdf [accessed: 6.06.2017]

[6] II(2) YbILC 17 (1996), p. 43.

[7] Ibidem.

[8] The amendment to the Rome Statute was adopted at the Kampala Review Conference on 11 June 2010 (see Resolution RC/Res. 6).

[9] According to R.S. Clark, The Crime of Aggression, in: C. Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford University Press, Oxford: 2015, Art. 8 bis, para. 2, contains a list of aggressive acts entailing individual criminal responsibility which is not exhaustive, and “other potential candidates must surely be interpreted narrowly and ejusdem generis with the existing list” (p. 782). For a different view see K. Ambos, The Crime of Aggression after Kampala, 53 German Yearbook of International Law (2010), p. 463.

[10] The view has been expressed by the ILC in its commentary on Art. 16 of the Draft Code adopted in 1996. See II(2) YbILC 17 (1996), p. 43.

[11] See supra the Chapters of Part II “Problems of Use of Force, Aggression and Armed Attack – The Crimea’s case”. See also A. Tancredi, The Russian Annexation of Crimea: Questions Relating to the Use of Force, QIL 5 (2014), p. 5 (www.qil-qdi.org).

[12] UN Doc. A/68/803-S/2014/202, at 6.

[13] IMT Judgment, supra note 4, p. 194. See also the Ministries case, supra note 5, p. 330.

[14] United States Military Tribunal, Nuremberg, German High Command case, judgment of 28 October 1948, in Law Reports of Trials of War Criminals, 1949, vol. XII, p. 66.

[15] In practice, the possibility of self-defence being invoked would depend on the qualification of the “first” use of force as an armed attack, rather than a mere act of aggression, as self-defence can only be used in response to an armed attack. For a distinction between the notions of aggression and armed attack under international law see M. Arcari, Violazione del divieto di uso della forza, aggressione o attacco armato in relazione all’intervento militare della Russia in Crimea?, Diritti umani e diritto internazionale (2014), p. 473. See also supra in this volume M. Arcari, The Qualification of Russia’s Intervention in Crimea and Its Legal Consequences: Breach of the Prohibition of the Use of Force, Aggression or Armed Attack?

[16] This is the view generally shared by international law scholars. See J. Hogan-Doran, B.T. Van Ginkel, Aggression as a Crime under International Law and the Prosecution of Individuals by the Proposed International Criminal Court, 43 Netherlands International Law Review 321 (1996), p. 336; Y. Dinstein, War, Aggression and Self-Defence, 2nd ed., Cambridge University Press, Cambridge: 1994, pp. 139–140; A. Cassese, International Criminal Law, Oxford University Press, Oxford: 2003, p. 115; G. Werle, Principles of International Criminal Law, TMC Asser Press, The Hague: 2005, p. 399.

[17] ICTR, Prosecutor v. Baghilishema, Trial Chamber, Judgment, 7 June 2001, para. 63.

[18] Supreme Military Government Court of the French Occupation Zone in Germany, Hermann Roechling and others, 25 January 1949, in: Trials of War Criminals before the Nuernberg Military Tribunals, vol. XIV, US Government Printing Office, Washington D.C.: 1949, p. 1108 (emphasis added). The same reason led to the acquittal of the defendants in the German High Command case, supra note 14, pp. 68–70.

[19] This approach was first adopted after World War II, then confirmed by the ILC works on the Draft Code of Crimes against the Peace and Security of Mankind (see the commentary on Art. 16 of the Draft Code, Report on the Work of its 48th Session, II(2) YbILC (1996), p. 45, para. 2 and more recently by domestic case law (see e.g. Audiencia Nacional, Scilingo case, Sentencia por crimenes contra la humanidad en el caso Adolfo Scilingo, 19 April 2005, www.derechos.org).

[20] IMT Judgment, supra note 4, p. 223.

[21] German High Command case, supra note 14, p. 67.

[22] US Nuremberg Military Tribunal, Krauch and Others (Farben case), 29 July 1948, in: Trials of War Criminals before the Nuernberg Military Tribunals, vol. X, US Government Printing Office, Washington D.C.: 1949, p. 38.

[23] Ibidem, p. 39.

[24] Ibidem.

[25] German High Command case, supra note 14, p. 69.

[26] See ILC, Report on the Work of its 48th Session, II(2) YbILC 17 (1996), p. 45 and ICC Statute, Art. 8 bis, para. 1, and Art. 25, para. 3 bis.

[27] US Nuremberg Military Tribunal, Krupp and Others (Krupp case), 30 June 1948, in Trials of War Criminals before the Nuernberg Military Tribunals, vol. X, US Government Printing Office, Washington D.C.: 1949, p. 105.

[28] M. Birnbaum, Putin was surprised at how easily Russia took control of Crimea, The Washington Post (15 March 2015), https://www.washingtonpost.com/world/europe/putin-was-surprised-at-how-easily-russia-took-control-of-crimea/2015/03/15/94b7c82e-c9c1-11e4-bea5-b893e7ac3fb3_story.html [accessed: 6.06.2017]. See also Vladimir Putin describes secret meeting when Russia decided to seize Crimea, The Guardian (9 March 2015), www.theguardian.com/world/2015/mar/09/vladimir-putin-describes-secret-meeting-when-russia-decided-to-seize-crimea [accessed: 6.06.2017].

[29] See in general A. Cassese, International Criminal Law, 2nd ed., Oxford University Press, Oxford: 2008, p. 380.

[30] See K. Del Mar, The International Court of Justice and Standards of Proof, in: K. Bannelier, T. Christakis, S. Heathcote (eds.), The ICJ and the Evolution of International Law. The enduring impact of the Corfu Channel case, Routledge, London–New York: 2012, p. 98.

[31] ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, para. 29. However, in the decision the Court generally refers to the existence of sufficient evidence: see paras. 159, 160, 216.

[32] ICJ, Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, 6 November 2003, ICJ Reports 2003, para. 71. However, the Court also refers to insufficient evidence (para. 57) and non-convincing evidence (para. 76).

[33] ICJ, Military and Paramilitary Activities, supra note 31 (emphasis added).

[34] ICJ, Corfu Channel case, Judgment, 9 April 1949, ICJ Reports 1949, p. 17.

[35] ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, ICJ Reports 2007, para. 209; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 3 February 2015 (www.icj-cij.org), para. 178.

[36] See in particular ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 35, paras. 401, 499.

[37] See in that regard B.I. Bonafè, Responsabilité de l’Etat et responsabilité individuelle pour crime de génocide: une séparation purement théorique?, Ordine internazionale e diritti umani (2015), p. 133 (www.rivistaoidu.net).

[38] ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), supra note 35, paras. 148, 417. The “beyond any reasonable doubt” standard of proof was explicitly applied by the Court in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, ICJ Reports 2007, para. 422.

[39] It remains to be seen whether the Court would apply the “beyond any reasonable doubt” to the proof of attribution for an act of aggression towards a state.

[40] See Inter-American Court of Human Rights, Velaquez Rodriguez case, Judgment, 29 July 1988, Ser. C N. 4 1988, para. 129 (“The Court cannot ignore the special seriousness of finding that a State Party to the Convention has carried out or has tolerated a practice of disappearances in its territory. This requires the Court to apply a standard of proof which considers the seriousness of the charge and which, notwithstanding what has already been said, is capable of establishing the truth of the allegations in a convincing manner.”).

[41] See Eritrea-Ethiopia Claims Commission, Partial Award: Prisoners of War – Eritrea’s Claim 17, decision of 1 July 2003, in: Reports of International Arbitral Awards, vol. XXVI, 2008, p. 41, para. 47 (“The Commission does not accept any suggestion that, because some claims may involve allegations of potentially criminal individual conduct, it should apply an even higher standard of proof corresponding to that in individual criminal proceedings. The Commission is not a criminal tribunal assessing individual criminal responsibility. It must instead decide whether there have been breaches of international law based on normal principles of state responsibility. The possibility that particular findings may involve very serious matters does not change the international law rules to be applied or fundamentally transform the quantum of evidence required”).

The Ukrainian Crisis and the Prospects for International Criminal Justice
Bartłomiej Krzan[*]

doi: 10.7366/9014Crimea15

Introduction

The factual background to the events leading to the commission of international crimes on the territory of Ukraine raises a series of concerns about how these are qualified from the legal point of view, and – perhaps more importantly – about the possible legal responses thereto, especially in terms of international-law responsibility for the conduct in question being established. Despite a variety of potential angles of analysis, the present exposition offers only the perspective of individual criminal responsibility before the International Criminal Court (hereinafter: the ICC) for the events at Maidan and for the ongoing crisis or incidents in eastern Ukraine. In contrast, the separate (albeit interconnected) questions concerning the annexation of Crimea and issues of state responsibility are not developed here.

1. Ukraine and the Rome Statute

To speak bluntly, a starting point would be the obvious statement that Ukraine has not ratified the Rome Statute of the International Criminal Court.[1] The basic document of the ICC was merely signed on behalf of that country on 20 January 2000. Interestingly, Ukraine became the first non-state party to accede to the Agreement on Privileges and Immunities of the Court on 29 January 2007.[2] Facing internal conflict, it lodged a declaration pursuant to Article 12(3) of the Rome Statute, and thereby granted the Court limited jurisdiction over crimes committed on its territory from 21 November 2013, to 22 February 2014. Incidents which related to Maidan unfortunately did not stop the bloodshed, and fighting continues to take place in eastern Ukraine, where deaths run into the thousands and relate to soldiers, mercenaries, and, most importantly, civilians, as conceived broadly. On 8 September 2015, Ukrainian Foreign Minister Klimkin lodged a second ad hoc Declaration under Article 12(3) of the Rome Statute, accepting the jurisdiction of the International Criminal Court (ICC) for crimes committed on Ukraine’s territory after 20 February 2014.

Certainly, there might be different reasons for accepting the jurisdiction of the ICC. States consider the issue within their own discretion. One may certainly speculate on different reasons for Ukraine’s position towards the permanent ICC. The two declarations might be considered postponement of the actual ratification of the Rome Statute, again choosing an ad hoc manner in which to be involved with the ICC. In fact, it would seem to be in Ukraine’s best interest to ratify the Rome Statute as soon as possible in order to avoid allegations of a political nature. However, the present study is definitely not the proper place for such considerations. Instead, this section aims to scrutinise the legal obstacles for ratification of the Rome Statute.

When discussing the position of the ICC in the Ukrainian context, particular attention has of course to be paid to the conformity of the Rome Statute with the Ukrainian Constitution. Such a question was replied to in the negative in 2001, by the Constitutional Court of Ukraine.[3] In general, as to the accordance of the Rome Statute with the Basic Law of Ukraine, the Constitutional Court referred to the principle of complementarity as envisaged in Article 17 of the Rome Statute, and stated that the jurisdiction of the ICC being supplementary to the national system was not contemplated by the Ukrainian Constitution. Under Article 124 of the Constitution of Ukraine, “Justice in Ukraine is administered exclusively by the courts. The delegation of the functions of the courts, and also the appropriation of these functions by other bodies or officials, shall not be permitted”.[4]

As provided by Article 9 of the Constitution, “International treaties that are in force, agreed to be binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine. The conclusion of international treaties that contravene the Constitution of Ukraine is possible only after introducing relevant amendments to the Constitution of Ukraine”. Therefore, in the light of the above-mentioned decision of the Constitutional Court, it would seem indispensable to introduce respective amendments to the Constitution.

However, to strike a balance, one may also note how the Constitutional Court deems other provisions of the Rome Statute as not contrary to the Ukrainian Constitution. The Court also examined the Rome Statute through the lenses of other provisions of the Constitution. Especially relevant in this regard is Article 125 prohibiting the creation of “extraordinary and special courts”. Against this particular background, the Court noted the Rome Statute’s reliance on respect for individual rights and freedoms; as well the guarantees to ensure impartial justice; and concluded that the ICC cannot be considered an extraordinary or special court. The constitutional judges did not identify any collision between the Rome Statute and the role of the Prosecution (Prokuratura of Ukraine) as envisaged in Article 121 of the Constitution. They found no need for the Constitution to be amended, since the above-mentioned provision relates solely to the prosecution of cases before the national courts only.

With regard to irrelevance of official capacity, Article 27 of the Rome Statute does not contravene the immunities granted by the Constitution, as these may be enjoyed solely before national jurisdictions. The Constitutional Court underlined further that the crimes within the jurisdiction of the ICC were crimes under international law, and reflected in both customary law and the international treaties binding on Ukraine.

As far as surrender of Ukrainian nationals is concerned, the Constitutional Court did not consider the respective provision of the Rome Statute (Article 89) to be incompatible with Article 25 of the Constitution prohibiting expulsions from Ukraine and, more importantly, surrenders to another state.[5] In this regard, the Court largely followed the distinction between extradition as understood traditionally, and the transfer of persons to an international court (here: the ICC); which could not be considered a foreign court, and which – as again underlined by the constitutional judges – provides for all human-rights guarantees.

With regard to enforcement of prison sentences, the Constitutional Court resolved the conflict between the respective obligations under the Rome Statute and Article 64 of the Ukrainian Constitution, stating that constitutional human and civil rights and freedoms shall not be restricted, except in cases envisaged by the Constitution. According to the Court, all risks connected might be reduced (or even eliminated) by lodging a declaration expressing a willingness for Ukrainian nationals to serve their sentences in Ukraine.

The question may then arise as to whether the Basic Law that is now being drafted for Ukraine is to be declared constitutional from the domestic perspective, and especially from that of the Constitutional Court. There have been numerous proposals to amend the Ukrainian Constitution. Under one of these, an additional sixth paragraph to Article 124 is to be inserted, with the wording: “Ukraine may recognize the jurisdiction of the International Criminal Court under the conditions stipulated by the Rome Statute of the International Criminal Court”. Still, the debate among Ukrainian constitutional lawyers might prove inaccessible to foreigners, in particular given the never-ending changes (replacements, annulments and reinstatement of preceding constitutions). For the time being, Article 124 remains to be amended. On 28 January 2016, the Parliament introduced changes to its internal regulation[6] on the introduction of amendments to the Constitution. On the same day the Verkhovna Rada decided to put the Act Amending the Constitution of Ukraine as regards Justice before the Constitutional Court of Ukraine.[7] The next point will therefore be the ruling by the Constitutional Court on this issue.

In the discussion on the future ratification of the Rome Statute, special attention is now to be paid to the EU-Ukraine Association Agreement, signed in 2014, wherein Article 8 stipulates that “The Parties shall cooperate in promoting peace and international justice by ratifying and implementing the Rome Statute of the International Criminal Court (ICC) of 1998 and its related instruments”.[8]

Irrespective of whether constitutional amendments are made, and given the preceding paragraph, one may simply consider domestic-law requirements irrelevant, from the point of view of the international obligations of a state. This is in fact a principle of long standing in international customary law, as international jurisprudence[9] confirms, and as Article 27 of the Vienna Convention on the Law of Treaties codifies.[10]

2. Declarations under Article 12(3)

Facing the aforementioned constitutional problems with ratifying the Rome Statute, Ukraine decided to choose another way of accepting the jurisdiction of the ICC, through recourse to Article 12(3) of its said Statute. By virtue of that provision:

If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

The consequence of a declaration lodged pursuant to Article 12(3) is an extension of the personal, temporal and territorial scope of application of the Rome Statute, beyond the limits set out in Article 12(2) thereof. As is widely known, the latter provision establishes the requirement of consent for the exercise of ICC jurisdiction to be expressed either by the state on the territory of which the conduct in question occurred or by the state of which the person accused of the crime is a national.[11] The definition of the preconditions to the exercise of jurisdiction has been one of the most controversial, if not the most controversial, issue in the negotiations of the Rome Statute.[12] Without doubt, Article 12 is the cornerstone provision of the Rome Statute.[13] Article 12(3) may be considered the residue of a provision of the 1994 ILC draft Statute, whereby a given state’s consent was contemplated on a case-by-case basis.[14]

The rationale of Article 12(3) is quite clear: to increase the chances for the Court to exercise its jurisdiction by providing states that are non-parties to the Rome Statute with a possibility to accept the Court’s jurisdiction ad hoc and ex post facto.[15] Both the Court and the said non-ratifying states may benefit from this peculiar reflection of reciprocity.[16] The Court may extend its jurisdiction over crimes not connected by a personal or territorial nexus with the Parties to the Rome Statute, and third parties may make use of access to the Court’s facilities, otherwise reserved only for those who have accepted this international treaty.[17]

The declarations lodged with the Registrar do provide for engagement of the ICC, no matter what the possibilities may be for acceding to the Rome Statute at a later stage. In discussing the repercussions of the Ukrainian declarations, one should look at practice to date in this respect, namely that of Ivory Coast, Uganda and, last but not least, Palestine. All those states have acceded to the Statute eventually. Ivory Coast was the first to lodge a declaration under Article 12(3). After signing the Rome Statute on 30 November 2003, it took it as long as until 15 February 2013 to complete the ratification process. In the meantime, in 2003 a declaration was lodged accepting the jurisdiction of the Court over crimes allegedly committed on the territory of Ivory Coast from 19 September 2002 onwards. The declaration was then confirmed by a Presidential Statement dated 14 December 2010.

In a similar vein, one may mention a declaration made by Uganda on 27 February 2004, to extend the temporal jurisdiction of the ICC also over the period from the general entry into force of the Statute (1 July 2002) and the date stemming from the ratification done on 14 June 2002, i.e. being effective from the beginning of September of the same year.[18]

As may be seen, a declaration under 12(3) can cover certain incidents retrospectively. Such a possibility is also acknowledge by Article 11(2), which reads:

If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under Article 12, paragraph 3.

This is an important exception to the lack of retroactive jurisdiction for the ICC. As a general rule, the Court is endowed with prospective jurisdiction. As provided in Article 11 of the Rome Statute, the ICC has jurisdiction only with respect to crimes committed after the entry into force of that treaty. But, in a broader context, one may argue that all previously established international criminal tribunals have exercised jurisdiction retroactively. Selectivity has thus always been a natural feature of international criminal prosecution.

The first declaration offered neutral recognition of the jurisdiction of the ICC “for the purposes of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Ukraine within the period 21 November 2013– 22 February 2014”. As underlined in the very declaration, the basis for Ukraine’s acceptance of the exercise of jurisdiction by the ICC is the Declaration of the Verkhovna Rada of Ukraine, which entered into force on 25 February 2014. The text of the latter Declaration was annexed to the Declaration lodged under 12(3) and might seem problematic in terms of its compatibility with the Rome Statute. In particular, the Ukrainian parliamentary body, as it recognised the ICC jurisdiction, specified categories of acts and their individual perpetrators as mentioned by name. After appealing to the ICC to bring senior officials of Ukraine to criminal liability in respect of crimes against humanity, the Verkhovna Rada decided to include in its Declaration a description of the practices forming the substantive basis thereof. In addition to the formal recognition of the jurisdiction, the Ukrainian Parliament once again appealed to the Court “to determine those responsible for crimes against humanity as provided for in Article 7 of the Rome Statute of the International Criminal Court and bring to justice Yanukovych Viktor Fedorovych – ex-President of Ukraine, Pshonka Viktor Pavlovych – ex-Prosecutor-General of Ukraine, Zakharchenko Vitalii Yuriiovych – ex-Minister of Internal Affairs of Ukraine, and other officials who issued and executed manifestly criminal orders which might be determined by the Prosecutor of the International Criminal Court”.

In a similar vein, the second declaration of 8 September 2015 is also formulated neutrally – it accepts the jurisdiction of the Court “for the purpose of identifying, prosecuting and judging the perpetrators and accomplices of acts committed in the territory of Ukraine since 20 February 2014”. It also refers to the Resolution of the Verkhovna Rada of 4 February 2015 “On the Declaration of Verkhovna Rada of Ukraine “On the recognition of the jurisdiction of the International Criminal Court by Ukraine over crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of terrorist organizations “DNR” and “LNR”, which led to extremely grave consequences and mass murder of Ukrainian nationals””. Both texts, together with unofficial translations, were annexed to the Declaration lodged by Pavlo Klimkim, Ukrainian Minister for Foreign Affairs, with the Registrar of the ICC. The abbreviations refer to the Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”), which were qualified as terrorist groups by the Ukrainian Prosecutor-General in May 2014.[19]

The aforesaid declaration of the Verkhovna Rada is even more specific, as it refers to 20 February 2014 marking the start of “an ongoing Russian Federation and Russia supported militant-terrorist armed aggression against Ukraine, during which a part of the territory of the independent and sovereign state of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol – was annexed, parts of the Donetsk and Luhansk regions of Ukraine were occupied, thousands of Ukrainian nationals, including children, were killed, thousands of people were injured, the infrastructure of the whole region was destroyed and hundreds of thousands of people were forced to flee from their homes”. The Verkhovna Rada went on to make special mention of “the shelling from multiple launch systems ‘Grad’ of civilians in residential areas of the Mariupol city in South Eastern Ukraine on 24 January 2015”.

Notwithstanding the wording of the annexed Resolution of the Verkhovna Rada of 4 February 2015, which refers exclusively to crimes committed by Russian and terrorist entities, the second declaration is formulated in a neutral manner. The result is the acceptance of the jurisdiction of the Court over crimes committed by all perpetrators.

One should note, however, the different wording between the declaration of the Verkhovna Rada and the subsequent declaration lodged under Article 21(3). The former document referred to the crimes committed in the period “starting from 20 February and to the present time”. In comparison, the declaration lodged by Pavlo Klimkin referred to acts committed on the territory of Ukraine since 20 February 2014. It was also mentioned in an explicit manner that the latter declaration is made for an indefinite duration and enters into force upon its signature. Upon a closer look, it might seem that the Foreign Minister modified the position taken by the Verkhovna Rada by omitting a closing date of the period. One might of course argue that it was exactly the intention of the Parliament when it included the phrase “to the present time”. From the formal(istic) perspective, however, it may as well be claimed that the very wording should refer to the date of adoption of the respective resolution of the Verkhovna Rada, thus subjecting its position to temporal limitations. From the perspective of the Court this is irrelevant, as the attention is to be paid to the lodged declaration. What is more troubling (and more difficult to explain), including in terms of effective policy, is that Ukrainian diplomacy needed over half a year to translate the Resolution of the Parliament into the declaration under Article 12(3) of the Rome Statute.

Be that as it may for the potential ratification of the Rome Statute, one may express some further discomfort concerning the position of Ukraine’s Parliament, which, while paying full attention to the need to amend the Constitution to ratify this international agreement, sees no constitutional obstacle to acceptance of the jurisdiction of the ICC on an ad hoc basis. Apparently, the award rendered by the Constitutional Court means a general prohibition on any delegation to an international tribunal, including the ICC.

A question then remains as to whether, by submitting the declaration, Ukraine is manipulating the Court’s jurisdiction? Indeed, such a position would go in line with American scepticism towards the ICC and criticism of one-sided or politicised use of the Court or, to borrow from Ruth Wedgwood, the “scenario of asymmetric liability”.[20] To some extent such a view would also seem to gain support in a literal reading of Article 12(3), whereby a State which is not a Party to the Statute may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question [emphasis added]. Arguably, a declaration might be tailored in such a way as to define the object of declaration and, consequently, limit the jurisdiction reach of the Court, with the result that there is a kind of jurisdiction à la carte. Such an opt-out mechanism might only be retained if one took the view that the conferment of ad hoc jurisdiction upon the ICC serves only to provide non-parties to the Statute with mere technical access to the facilities of the Court.[21]

Any manipulation of the Court’s jurisdiction by narrowing the object of a declaration, albeit seemingly acceptable under Art. 12 (3), is then also excluded when juxtaposed with the RPE. Rule 44 provides that:

1. The Registrar, at the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in Article 12, paragraph 3.
2. When a State lodges, or declares to the Registrar its intent to lodge, a declaration with the Registrar pursuant to Article 12, paragraph 3, or when the Registrar acts pursuant to sub-rule 1, the Registrar shall inform the State concerned that the declaration under Article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in Article 5 of relevance to the situation and the provisions of Part 9, and any rules thereunder concerning States Parties, shall apply.

In addition, strong support came from the Court, as well. On 15 August 2012, Pre-Trial Chamber I provided an important clarification quoted in extenso as follows:

The Chamber notes that while States may choose to consent or not to the jurisdiction of the Court through declarations provided for in Article 12(3) of the Statute, the scope of such declarations is predetermined by the ICC legal framework. Most notably rule 44 of the Rules explicitly limits the discretion of States in framing the situation that may be investigated by the Court. This rule mandates the Registrar to remind accepting States that “the declaration under Article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation and the provisions of Part 9, and any rules thereunder concerning States Parties, shall apply” (emphasis added). Rule 44 of the Rules was adopted in order to ensure that States that chose to stay out of the treaty could not use the Court “opportunistically”. Indeed, there were concerns that the wording of Article 12(3) of the Statute, and specifically the reference to the acceptance of jurisdiction “with respect to the crime in question”, would allow the Court to be used as a political tool by States not party to the Statute who could selectively accept the exercise of jurisdiction in respect of certain crimes or certain parties to a conflict.[22]

Such a position arises out of the underlying assumption that the Court (or the Prosecutor) must not be limited or manipulated in tailoring by the limited referral of the situation or (in the worst case) specific crimes only. In the Decision on the “Defence Challenge to the Jurisdiction of the Court” in Prosecutor v. Callixte Mbarushimana, the Pre-Trial Chamber recalled that, “pursuant to Articles 13 and 14 of the Statute, a State Party may only refer to the Prosecutor an entire “situation in which one or more crimes within the jurisdiction of the Court appear to have been committed”. Accordingly, a referral cannot limit the Prosecutor to investigate only certain crimes, e.g. crimes committed by certain persons or crimes committed before or after a given date; as long as crimes are committed within the context of the situation of crisis that triggered the jurisdiction of the Court, investigations and prosecutions can be initiated”.[23]

To support this position, the Judges relied on the Commentary on the Rome Statute[24] and the previous case law. In the Prosecutor v. Omar Al Bashir, in which the Chamber stressed that the referring party (here: the Security Council, but the validity of that view might be extended to other scenarios), when referring a situation to the Court, submits that situation to the entire legal framework of the Court, not to its own interests: “[…] by referring the Darfur situation to the Court, pursuant to Article 13(b) of the Statute, the Security Council of the United Nations has also accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the rules as a whole”.[25]

This is also confirmed by the Prosecutor, who used the possibility to stress this position and when reacting to the Ugandan self-referral.[26]

To proceed, it is inevitable to define the procedural regime applicable to declarations lodged under Article 12(3). Theoretically, the acceptance of jurisdiction may be treated either as analogous to state referral[27] or as (merely) a pre-requirement enabling the Prosecutor to start proprio motu proceedings.[28] It is the latter scenario that prevails,[29] underscoring also the meaning and rationale of consent in procedural terms.

Thus, a declaration under Article 12(3) does not trigger exercise of jurisdiction, and this has also been reflected in the Policy Paper on Preliminary Examinations prepared by the Office of the Prosecutor in November 2013.[30] In addition, pursuant to Regulation 46 in conjunction with Regulation 45 of the Regulations of the Court, a Pre-Trial Chamber may only be constituted following the Prosecutor’s notification of a referral, or of an intention to submit an Article 15 request.[31]

The starting of the proceeding i.a. means assessment of the gravity threshold. Lesser human-rights violations, which would not meet the requirements for falling within ICC jurisdiction, could ultimately be dealt with by the European Court of Human Rights. Both Ukraine and Russia belong to the Council of Europe. Fortunately, the prohibition of the delegation under Article 124, so crucial to the ratification of the Rome Statute, does not extend to the European Court of Human Rights or to other relevant human rights bodies, explicitly allowed for by other provision of the Constitution.[32]

As a side-remark, it is necessary to warn that the consequences of the declarations might also prove problematic in terms of their compatibility with Article 5 of the Minsk II agreement providing pardon and amnesty to those involved in the conflict in the Donbass region. The relevance of amnesties might of course be debated,[33] but this is yet another reflection of the challenges to international criminal justice.

3. An alternative route? An excursus on the MH17 downing

While we have so far been analysing the general prospects of jurisdiction for the ICC with regard to events in Ukraine, this last section pays special attention to one particular incident. The downing of Malaysia Airlines flight MH17 over eastern Ukraine on 17 July 2014 resulted in the death of 298 persons, both passengers and crew. The fact that the authors of the MH17 downing are unknown would not be an obstacle to the ICC having jurisdiction, even if they acted with the involvement of another state. The effect of the declaration is basically to provide for a transfer of territorial jurisdiction, as stems directly from Article 12(2)(a). In this regard, the nationality of the perpetrators or the objections raised by the state of their nationality are irrelevant.

The Security Council, in its Resolution 2166 of 21 July 2014, reaffirmed the rules of international law prohibiting acts of violence that pose a threat to the safety of international civil aviation and emphasised the importance of holding those responsible for violations of these rules to account.[34] Furthermore, after condemning the downing in the strongest terms, it demanded “that those responsible for this incident be held to account and that all States cooperate fully with efforts to establish accountability’ ”.[35] The subsequently adopted Resolution 2202 (2015) of 17 February 2015 reaffirmed its predecessor.[36]

In their letter of 10 July 2015, the representatives of Australia, Belgium, Malaysia, The Netherlands and Ukraine requested that the Security Council “establish an ad hoc international criminal tribunal under Chapter VII of the Charter of the United Nations to prosecute persons responsible for crimes connected with the downing of MH17”.[37] The authors of that request considered that a tribunal established by the Security Council would be the most effective mechanism by which to deliver justice for the families of all victims of the MH17 incident, and would also maximise international cooperation, as is necessary for an effective prosecution. It was suggested that the Security Council establish the ad hoc tribunal one year after the adoption of Resolution 2166 (2014), “in order to send a clear message to those who threaten the safety of civil aviation that the international community is committed to holding them to account”.[38] Such conclusions and recommendations are also in conformity with the position taken by a Joint Investigation Team comprising the prosecution authorities from Australia, Belgium, Malaysia, The Netherlands and Ukraine, acting in full independence of the governments of the respective countries.[39]

The proposal spoke of “an international tribunal for the sole purpose of prosecuting persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014 in Donetsk Oblast, Ukraine”.[40] By virtue of the annexed Statute, the Tribunal was to have jurisdiction over persons responsible for crimes connected with the downing of Malaysia Airlines flight MH17 on 17 July 2014.[41] Its subject-matter jurisdiction would extend over war crimes, crimes against the safety of civil aviation, i.e. destroying, damaging or endangering the safety of aircraft as defined in Section 9 of the Aviation Offences Act 1984 of Malaysia; and certain crimes under the Criminal Code of Ukraine. Among the latter category Article 4 specifies: murder; negligent homicide; willful destruction of, or damage to, property; smuggling; crimes against public safety; unlawful handling of weapons, ammunition or explosives; concealment of a criminal offense and trespass against the life of a foreign state representative.

The mixed catalogue of crimes (and applicable law) suggests the hybrid nature of the Tribunal, despite the obvious comparison with the ad hoc International Tribunals for Yugoslavia and Rwanda, also established by the Security Council under Chapter VII of the Charter of the United Nations. Similarly, the proposed Tribunal would have primacy over national courts.[42] The Tribunal’s structure would include chambers, (comprising a Pre-Trial Judge, a Trial Chamber composed of three judges, an Appeals Chamber composed of five judges and two alternate judges, the Prosecutor and a Registry.[43] All would be appointed by the Secretary-General. The Statute foresaw the seat of the Tribunal in The Netherlands and its financing from voluntary state contributions.

The proposals to establish a special tribunal by the Security Council were eventually shattered by the Russian veto cast on 29 July 2015.[44] There were three abstentions (by Angola, China and Venezuela). As the announcements made after the vote shed some additional light relevant to the assessment of the prospects for international criminal justice, they are reported on briefly here.

Ambassador Churkin of Russia complained that Russian experts were not provided equal access to the various aspects of the technical investigation, and, more importantly, objected to the idea of a Tribunal under Chapter VII of the Charter being set up, on the basis of a lack of grounds.[45] Astonishingly enough, this undermined the experience of the two international criminal tribunals.[46] In addition, the Russian representative mentioned an initiative to set up a special international tribunal to prosecute pirates, which was objected to (and eventually abandoned), given what he felt was the lack of efficiency, slowness and unwieldiness of such mechanisms. Regretting that such a reaction was being provided by the supporters of the present Resolution, the Russian Ambassador implied incoherence in the respective positions.

The reason for the Chinese abstention was the division among Council Members.[47] In contrast, France said there had been a calling into question of one of the Council’s major areas of action, one that had until then found consensus among its Members. It thus regretted the veto.[48] The United Kingdom’s representative was “deeply saddened, frustrated and disappointed ‘[t]that Russia ha[d] vetoed the draft resolution’ ”.[49] In the opinion of the Venezuelan Ambassador, the description of this incident as a threat to international peace and security was untimely, and politicise[d] the handling of this case.[50] For his part, the representative of Angola considered the establishment of a criminal tribunal “a premature solution”, and suggested waiting for the results of the investigation.[51]

In general, the positions stated by the participants of the Council meeting reveal the traditional hurdles to the effective implementation of international criminal justice and its highly selective nature.

There are certainly other possibilities by which individual criminal responsibility may be established. First of all, a remedy lies in domestic prosecution engaged in either by reference to territorial principle (i.e. Ukraine) or nationality (depending on the nationality of the perpetrators) or passive nationality (most victims originated from The Netherlands, Malaysia or Australia). Alternatively, one might rely on universal jurisdiction or on the jurisdiction of the state of registration of the aircraft. In the latter case it is Malaysia that would be entitled to exercise criminal jurisdiction under Article 3(1) of the Convention on Offences and Certain Other Acts Committed on Board Aircraft, concluded in Tokyo in 1963.[52]

Conclusions

The brief observations offered above show just how intricate the prosecution of international crimes can be. Without doubt, the examination of events in Ukraine is a complex task, which provides an additional test of the International Criminal Court’s functioning. The declarations lodged with the Registrar under Article 12(3) both provide a necessary basis for the Court’s involvement. From a broader perspective they seem very useful in defining the fate of the conflict in Ukraine and – from a still-more general perspective – perhaps the direction of the judicial policy pursued by the ICC, and – even further out – the vectors now characterising the development of international criminal responsibility. At the time of writing, the Prosecutor is still conducting the investigation, so it remains too early to draw any final conclusions with respect to the judicial reaction to the events in Ukraine. However, irrespective of the eventual results of the investigation, one may state safely that the challenges referred to above may prove extremely relevant in defining a proper role and position for the permanent International Criminal Court, when it comes to the emerging and fragmenting realm of international criminal justice.

Abstract: This paper aims to examine the possibilities for the atrocities committed on the territory of Ukraine to be prosecuted before the International Criminal Court, or via alternative mechanisms. Ukraine is not party to the Rome Statute, but lodged two declarations accepting the jurisdiction of the ICC over alleged crimes committed on Ukrainian territory. The paper thus examines the application of Article 12(3) with regard to Ukrainian declarations and analyses the modalities of the ICC jurisdiction accepted thereby. In addition, it discusses the potential repercussions of the downing of Malaysia Airlines flight MH17.

Keywords: International Criminal Court, Ukraine, Article 12(3) Declarations, individual criminal responsibility, MH17 downing.

[*] Bartłomiej Krzan, University Professor, Department of International and European Law, Faculty of Law, Administration and Economics, University of Wrocław.

[1] Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 UNTS 3.

[2] Agreement on the Privileges and Immunities of the International Criminal Court, New York, 9 September 2002, 2271 UNTS 3.

[3] Opinion of the Constitutional Court on the conformity of the Rome Statute with the Constitution of Ukraine, Case N 1–35/2001, 11 July 2001: Висновок Конституційного Суду України у справі за конституційним поданням Президента України про надання висновку щодо відповідності Конституції України Римського Статуту Міжнародного кримінального суду (справа про Римський Статут) – available at http://zakon1.rada.gov.ua/laws/show/v003v710-01 [accessed: 30.01.2016]. For an excellent summary see the ICRC, Issues Raised with Regard to the Rome Statute of the International Criminal Court by National Constitutional Courts, Supreme Courts and Councils of State, pp. 10f., available at https://www.icrc.org/eng/assets/files/other/issues_raised_with_regard_to_the_icc_statute.pdf [accessed: 30.01.2016].

[4] Constitution of Ukraine, Text provided by the Ukrainian authorities on 13 March 2014, European Commission for Democracy Through Law (Venice Commission), CDL-REF(2014)012.

[5] See supra note 4, Art. 25 second sentence of the Constitution: “A citizen of Ukraine shall not be expelled from Ukraine or surrendered to another state”.

[6] Zрегламент Верховної Ради України.

[7] See http://zakon3.rada.gov.ua/laws/show/950-19 [accessed: 30.01.2016]. I am grateful to Prof. Oksana Holovko-Gavrisheva for drawing attention to those developments.

[8] Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, OJ L 161, 29.5.2014, p. 3–2137.

[9] See, in particular with regard to incompatibility with constitutional provisions, The PCIJ, Series A/B, no. 44: Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion of 4 February 1932, p. 24: “It should however be observed that, while on the one hand, according to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s Constitution, but only on international law and international obligations duly accepted, on the other hand and conversely, a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force”.

[10] Vienna Convention on the Law of Treaties, 1155 UNTS 331.

[11] Those requirements do not have application if the situation is referred by the Security Council – see Art. 12(2), in conjunction with Art. 13(b) of the Rome Statute.

[12] See S.A. Williams, W.A. Schabas, Article 12, in: O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, CH Beck/Hart/Nomos, München: 2008, p. 548. Cf. K. Miskowiak, The International Criminal Court: Consent, Complementarity and Cooperation, DJØF, Copenhagen: 2000, pp. 22ff. Cf. E. La Haye, The Jurisdiction of the International Criminal Court: Controversies over the reconditions for Exercising Its Jurisdiction, XLVI Netherlands International Law Review (1999), pp. 3ff; Ph. Kirsch, D. Robinson, Reaching Agreement at the Rome Conference in A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary. Volume I, Oxford University Press, Oxford: 2002, p. 83. See also M. Inazumi, The Meaning of the State Consent Precondition in Article 12(2) of the Rome Statute of the International Criminal Court: A Theoretical Analysis of the Source of International Criminal Jurisdiction, XLIX Nordic Journal of International Law (2002), pp. 159ff.

[13] H.-P. Kaul, Preconditions to the Exercise of Jurisdiction, in: A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary. Volume I, Oxford University Press, Oxford: 2002, p. 583.

[14] See S.A. Williams, W.A. Schabas, supra note 12, p. 559.

[15] G. Palmisano, The ICC and Third States, in: F. Lattanzi, W.A. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, vol. I, il Sirente, Ripa Fagnano Alto: 1999, p. 393.

[16] Understood as the structural balance of rights and obligations of states parties and third states – see: C. Stahn, M.M. El Zeidy, H. Olásolo, The International Criminal Court’s Ad Hoc Jurisdiction Revisited, 99 Am. J. of Int’l L. (2005), p. 422.

[17] G. Palmisano, supra note 14, p. 393.

[18] It is that declaration the Court referred to in § 32 of the Warrant of Arrest for Joseph Kony, as issued on 8 July 2005, see ICC-02/04-01/05-53 13–10-2005.

[19] http://www.kyivpost.com/content/ukraine/ukraines-prosecutor-general-classifies-self-declared-donetsk-and-luhansk-republics-as-terrorist-organizations-348212.html [accessed: 30.01.2016].

[20] See R. Wedgwood, The International Criminal Court: an American view, 10 Eur. J. Int’l L. (1999), p. 102.

[21] See C. Stahn, M.M. El Zeidy, H. Olásolo, supra note 16, p. 428.

[22] Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”, at § 59.

[23] ICC-01/04-01/10-451, 26–10-2011, § 27.

[24] O. Triffterer, supra note 12, p. 579.

[25] ICC-02/05-01/09-3 para. 45.

[26] See Letter from the Prosecutor to the President of the Court, dated 17 June 2004, annexed to the “Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I”, ICC-01/04-1, p. 4: “My Office has informed the Ugandan authorities that we must interpret the scope of the referral consistently with the principles of the Rome Statute, and hence we are analyzing crimes within the situation of northern Uganda by whomever committed”.

[27] S. Freeland, How Open Should the Door Be – Declarations by Non-States Parties under Art. 12(3) of the Rome Statute of the International Criminal Court, 75 Nordic Journal of International Law (2006), p. 224.

[28] See e.g. C. Stahn, M.M. El Zeidy, H. Olásolo, supra note 16, p. 423 and C. Stahn, Why Some Doors May Be Closed Already: Second Thoughts on a “Case-by-Case” Treatment of Article 12 (3) Declarations, 75 Nordic Journal of International Law (2006), p. 245. S.A. Williams, W.A. Schabas, Article 13, in O. Triffterer (ed.), supra note 12, p. 569. The latter authors seem very categorical when they conclude “There can be no ad hoc referrals by non State-Parties, even those that have made declarations pursuant to Art. 12(3)”.

[29] See also A. Wills, Old Crimes, New States and the Temporal Jurisdiction of the International Criminal Court, 12 Journal of International Criminal Justice (2014), p. 421.

[30] OTP, Policy Paper on Preliminary Examinations: fn. 25 to § 40 at p. 10: “It should be noted that Article 12(3) is a jurisdictional provision, not a trigger mechanism. As such, declarations of the sort should not be equated with referrals, but will require a separate triggering by the Prosecutor proprio motu or by a State Party”. Further elaborated at § 76: “Upon receipt of a referral or a declaration pursuant to Article 12(3), the Office will open a preliminary examination of the situation at hand. However, it should not be assumed that a referral or an Article 12(3) declaration will automatically lead to the opening of an investigation. Documents accompanying a referral or declaration as well as any other information will be subject to critical analysis and independent evaluation by the Office.52 The Office’s approach to considering the factors set out in Article 53(1)(a)-(c) will be the same irrespective of the way in which the preliminary examination is initiated”.

[31] See Regulations of the Court, Official documents of the International Criminal Court ICC-BD/01-03-11.

[32] See Art. 55(4) of the Constitution provides: “After exhausting all domestic legal remedies, everyone has the right to appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant”.

[33] Cf. F. Lessa, Amnesty in the age of human rights accountability: comparative and international perspectives, Cambridge University Press, Cambridge: 2012; L.J. Laplante, Outlawing amnesty: the return of criminal justice in transitional justice schemes, 49:4 VA J. Int’l L. (2009), pp. 915ff.; A. Seibert-Fohr, The relevance of the Rome Statute of the International Crime Court for amnesties and truth commissions, 7 Max Planck Yearbook of United Nations Law (2003), pp. 553ff.

[34] UN Doc. S/RES/2166 (2014), 2. preambular paragraph.

[35] Ibidem, §11.

[36] UN Doc. S/RES/2202 (2015).

[37] Letter dated 10 July 2015 from the Permanent Representatives of Australia, Belgium, Malaysia, The Netherlands and Ukraine to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/528.

[38] Ibidem.

[39] See Letter dated 20 July 2015 from the Permanent Representative of The Netherlands to the United Nations addressed to the President of the Security Council, UN Doc. S/2015/551, p. 3: “To ensure that justice can be done effectively, the countries united in the joint investigation team have chosen to coordinate efforts for setting up a prosecution mechanism. They are committed to ensuring that the most effective and broadly supported mechanism available under international law is utilized, given the gravity of this attack on peaceful civil aviation. An ad hoc international criminal tribunal established by the Security Council under Chapter VII of the Charter of the United Nations meets these standards and would be consistent with, and build upon, Council resolution 2166 (2014). A Council-established international criminal tribunal would maximize international cooperation, which will be needed for an effective prosecution and trial”.

[40] Draft Resolution on the establishment of an International Tribunal for the Purpose of Prosecuting Persons responsible for Crimes Connected with the Downing of Malaysia Airlines flight MH17 on 17 July 2014 in Donetsk Oblast, Ukraine, UN Doc. S/2015/562, §6.

[41] Ibidem, Annex, Statute of the International Criminal Tribunal for Malaysia Airlines Flight MH17 (ICTMH17), Art. 1(1).

[42] See ibidem, Art. 10.

[43] See ibidem, Arts. 20 and 21.

[44] See UN Doc. S/PV.7498, p. 3.

[45] Ibidem, p. 4: “There are no grounds for it, given that in Resolution 2166 (2014) the Security Council did not classify the Boeing tragedy as a threat to international peace and security. It is difficult to explain how this event, which a year ago was not considered to be a threat to international peace and security, now suddenly becomes one. In principle, issues pertaining to organizing a criminal investigation do not fall under the remit of the Security Council”.

[46] Ibidem, p. 5: “Well-known exceptions have been made owing to the need to determine those guilty for mass crimes deemed by the international community to be of the most serious nature. However, the experience with the Tribunal for the Former Yugoslavia and the Tribunal for Rwanda can hardly be considered positive, given that they were very expensive, that they took a long time to carry out their work, that they were subject to political pressure, et cetera. No precedent in principle exists for the establishment by the Council of international tribunals to bring to justice those responsible for transportation disasters”.

[47] Ibidem, pp. 9–10.

[48] Ibidem, p. 10.

[49] Ibidem.

[50] Ibidem, p. 11.

[51] Ibidem, p. 12.

[52] ICAO Doc. 8364/704 UNTS 220.

PART IV
FOLLOW-UP OF THE CONFLICT: CIVIL WAR IN UKRAINE?

Naming Names: The Prudence, Propriety and Potential Ramifications of Employing “Terrorist” Nomenclature to Describe Militant Separatists in Eastern Ukraine
Matthew C. Kane[*]

doi: 10.7366/9014Crimea16

Introduction

“Is it coming to us or from us?” asked a young child hiding in a bathroom as shelling recommenced in the eastern Ukrainian city of Debaltseve.[1] The crisis, reflecting generations of animosity over whether the country should more closely align itself with Europe or Russia, reached a boiling point when Viktor Yanukovych was ousted as President, over his rejection of such closer alignment with the EU, and Russia responded by annexing Crimea,[2] which had been part of Russia since the turn of the nineteenth century, before being transferred to the Ukrainian Soviet Socialist Republic in 1954. The violence has continued to this day, despite ongoing negotiations and failed ceasefires, often leaving innocent civilians with little idea of who is targeting who. Throughout the conflict, however, Ukrainian authorities have elected to identify a variety of specific incidences as terrorist acts or suspected terrorism. These include a pipeline explosion in the Poltava region;[3] the downing of Malaysian Airlines Flight 17 by a Russian surface-to-air missile;[4] rocket fire from separatist troops resulting in thirty civilian deaths in Mariupol;[5] rocket fire in Donetsk which hit a bus at a government checkpoint killing at least 13 civilians;[6] and a series of bombings in Odessa.[7]

Such acts, of which many have resulted in considerable civilian casualties, have led to a broader categorisation of various militant groups, and even of the separatists as a whole, as terrorists. Only three months after the annexation of Crimea, Ukraine’s Office of the Prosecutor General had classified the two primary opposition forces as “terrorist organisations”.[8] Two months later, President Poroshenko wrote an op-ed published in a major American newspaper, declaring that Russia was providing weaponry to “terrorists” and that the United States should take the lead in ensuring the “terrorists [were] not able to strike again”.[9] By early January 2015, pro-Russian rebels had been officially labelled a as terrorists by the Ukrainian Parliament, subjecting them to Ukrainian anti-terrorism laws.[10] In July 2015, Ukraine utilised that classification to charge a Russian Major captured transporting military equipment outside Donetsk with terrorism.[11] Critically, the use of the “terrorist” terminology by Ukrainian politicians has been effective in setting the regional tone the European Parliament has condemned the ‘acts of terrorism and criminal behaviour of the separatists and other irregular forces in eastern Ukraine.’[12]

Thus, from a Western perspective at least, the narrative has by and large been set in a manner consistent with the position the Ukrainian government has adopted. However, merely because one says it is so does not inherently make it so. The propriety and results of such a classification merit further review. Through the course of this chapter, we will review the challenges and pitfalls of defining terrorism before identifying and analyzing pertinent definitions, and their application to various acts purportedly committed by separatists. The chapter then turns to the use of the term to describe the separatists as a whole and concludes with a review of the potential results of such labelling.

While specific acts of certain separatists may fall within even the narrowest of terrorism definitions, the broader application of the terrorist label to separatist groups fails to capture the broader “spirit” of relevant terminology, even if it may be technically correct under certain definitions. Ultimately, such expansive use of broad terminology may serve to continue, rather than diminish, the violence.

1. Defining terrorism

“It has now become a real cliché: every paper on terrorism begins by noticing that the definition of terrorism is still highly controversial”.[13] And so it is. As has been long acknowledged, terrorism is a term lacking a consensus definition, even as it is commonly recognized as one of the globe’s most significant threats to peace and security, leading to repeated attempts to arrive at a satisfactory elucidation for over ninety years.[14]

The role of a consensus definition has been explained thus:

First and foremost, it has the symbolic, normative role of expressing society’s condemnation of the forbidden acts. Second, it facilitates agreement. Since states tend to be reluctant to undertake stringent obligations in matters related to the exercise of their domestic jurisdiction, a precise definition of the crime, which restricts the scope of those obligations, makes agreement less costly. Third, it provides an inter-subjective basis for the homogeneous application of the treaty’s obligations on judicial and police cooperation. This function is of particular importance in extradition treaties because, to grant an extradition, most legal systems require that the crime be punishable both in the requesting state and the requested state. Fourth, it helps states to enact domestic legislation to criminalize and punish the wrongful acts defined in the treaty in conformity with their human rights’ obligations.[15]

Yet no such universal conclusion has been reached. Without an agreed definition of terrorism, “[e]veryone will delimit terrorism in such a way that his own violence cannot be described as illegitimate”.[16] Consequently, while one government may limit the term to violent acts committed by international agents against civilians, another may use it to describe peaceful student protests or citizens marching for voting rights. Given the obvious importance of a consensus definition, why it is so elusive?

The reasons are many, including the breadth of treatment the term receives from experts in a fields as diverse as politics, law, sociology, and psychology (to name but a few). Such diverging interests produce numerous definitions, with a variety of points of emphasis, and just as many valid critiques. Two general explanations for the difficulty in reaching a consensus definition include: (1) the “diversity of phenomena that is called terrorism;” and (2) “the polemical use of the term”.[17]

In examining the first of these concerns, the challenge is to find a definition which covers the “totality of what is defined.”[18] But “that reduction appears to be doomed to fail, for the word ‘terrorism’ applies to phenomena which have nothing in common.”[19] In other words, “a simple definition of terrorism tends to delimit a class of events so broad as to defy valid generalizations about it…or so vague that its empirical applicability is negligible.” [20] “[W]e are the victims of a nominalistic fallacy: we believe that all the phenomena called ‘terrorism’ have the same nature because they have the same name.”[21]

Whenever we develop public policies to fight terrorism, we are supposing that “terrorism” picks out a distinctive class of actions whose members are sufficiently alike that one can devise a coherent terrorism policy that effectively addresses the actions within the class. But given what “terrorism” means in ordinary usage, this is simply not true. “Terrorism”, in its ordinary use, simply does not pick out a class of actions sufficiently unified to guide public policy.[22]

A cursory review of the wide variety of events designated by Ukrainian officials as terrorism – from rocket attacks to business bombings to the downing of a commercial airliner) – reveal the challenges in finding a comprehensive definition.

The second challenge focuses on the wide politicisation of the term. As one scholar has written, “The concept of terrorism has been so deformed by rhetorical usage that it is probably not possible to provide a full analysis of its use in common language.”[23] Others have pointed out that “terrorism” is an “indexical term”[24] – i.e. “a term whose reference depends on the context of utterance.”[25] Thus, its “[u]sage characteristically applies the term to violent acts performed by those of whose positions and goals the speaker disapproves and fails to apply it to similar acts by those with whose positions and goals the speaker identifies.”[26] “What I do, however unpleasant is not terrorism; what you do is terrorism.”[27] In other words, “[e]veryone, when defining terrorism, actually describes the acts of violence carried out by his own enemy so that the indefinite extension of the concept overwhelms and destroys its comprehension.”[28] Many critics of prevailing definitions of terrorism focus on the state as the entity controlling its elements and application. “Terrorism is a violent act, but state officials seek a monopoly on violence, especially violence with a negligible probability of retaliation…[It] is illegal because it jeopardizes the control exercised by superordinate state officials…”.[29]

Again, it is quite easy to see how someone could immediately conclude, on an initial review, that Ukrainian officials consider the acts of their opponents “terrorist” but have no intention of using the term in describing any misconduct by their own troops.[30]

Examining one extreme example, Juergen Stroop, the Nazi Commander responsible for the destruction of the Warsaw Ghetto, specifically referred to members of the Polish Resistance as “subhumanity – bandits and terrorists.”[31] As perverse (and improper) as it seems to call those active in the face of genocide “terrorists”, there are in fact many definitions of terrorism that would accommodate such an interpretation. “If the main purpose of the acts of violence carried out by the resistance movements of the Second World War (in opposition to Nazi rule) was to generate a psychological impact beyond the immediate victims; then such acts could also be classified as acts of terrorism…Terrorism, then, is about the use of violence or the credible threat of violence in order to generate a psychological impact beyond the immediate victims.”[32] The challenge of finding an appropriate definition of terrorism is obvious.

Often, definitions of terrorism fall into general and specific approaches:

The specific approach identifies certain activities as terrorism, such as hijacking and taking hostages, without seeking to define a general category of terrorism per se, while the general approach seeks to arrive at a general definition of terrorism, by reference to criteria such as intention, motivation, and so forth. The former is essentially an inductive approach, while the latter is deductive.[33]

Some prefer the specific approach, because, arguably, it lessens the scope of political manipulation. However, limiting terrorism to specific acts might not capture the popular conception of terrorism. [34] On the one hand, the enumerated acts might be too limited – i.e. a coordinated attack with knives that causes significant loss of life, accompanied by the threat of similar attacks if a government does not change its policies, might fall outside the scope of hijacking, kidnapping and bombing that served as the basis of specific acts used to define terrorism.

Conversely, despite lacking any motive or scope typically ascribed to terrorism, certain actions might fall within the aforesaid specific categories. A drunk college student commandeering a prop plane with a plastic spoon would be classified as terrorism even if just a prank.[35]

On the other hand, while the general definition could provide “the official international seal of disapproval on a whole range of violent political behaviour, with a moral emphasis that the facially apolitical inductive approach lacks,”[36] the attempt to reach consensus on required motive, intent, target and other similar factors has in fact failed repeatedly. Issues of states and violent national liberation movements – one person’s terrorist is another’s freedom fighter – have been problematic.[37] “As a result, the approach taken to defining terrorism in the international arena has been to adopt a specific (or inductive) model”.[38]

Regardless, we are largely limited to “stipulative” definitions,[39] while such a definition is not particularly problematic for a state seeking to define events within its borders, terrorism is plainly an international issue, and thus requires cooperation between states. There we find that that more-comprehensive, “non-academic” definitions of terrorism are often “minimalist definitions that focus narrowly on the constituent elements of terrorism” that “tend to be adopted by like-minded countries”[40] – i.e. those utilising a “specific” model.

Thus, we find ourselves at the first critical juncture in the instant analysis; reviewing state, regional and international instruments to determine the propriety of Ukraine labelling separatists as terrorists.

1.1. Ukraine

Under pertinent Ukrainian legislation, terrorism is defined as:

publicly dangerous activity, consisting of conscious, deliberate use of violence by the capture of hostages, arson, murder, torture, intimidation of the population and public authorities or accomplishing of other encroachments on the life or health of innocent people or threats of committing criminal acts to achieve a criminal purpose.

Terrorist acts include: crime in the form of weapons, generation of an explosion, arson or other actions under Article 258 of the Criminal Code of Ukraine.

1.2. The Russian Federation

On 6 March 2006, Russia passed legislation introducing a novel definition of terrorism: “[T]errorism shall mean the ideology of violence and the practice of influencing the adoption of a decision by state power bodies, local self-government bodies or international organisations connected with frightening the population and (or) other forms of unlawful violent actions.” [41] However, to provide a more fair comparison with other definitions, the Russian definition of “terrorist act” must also be considered:

terrorist act shall mean making an explosion, arson or other actions connected with frightening the population and posing the risk of loss of life, of causing considerable damage to property or the onset of an ecological catastrophe, as well as other especially grave consequences, for the purpose of unlawful influence upon the adoption of a decision by state power bodies, local self-government bodies or international organisations, as well as the threat of committing the said actions for the same purpose.[42]

1.3. Regional instruments

The Commonwealth of Independent States is a regional organisation comprising Russia and a number of other states that were previously parts of the USSR. Ukraine was a CIS founding state, although it never formally ratified that organisation’s charter.[43] The Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating Terrorism defines “terrorism” as:

an illegal act punishable under criminal law committed for the purpose of undermining public safety, influencing decision-making by the authorities or terrorizing the population, and taking the form of:

• Violence or the threat of violence against natural or juridical persons;

• Destroying (damaging) or threatening to destroy (damage) property and other material objects so as to endanger people’s lives;

• Causing substantial harm to property or the occurrence of other consequences dangerous to society;

• Threatening the life of a statesman or public figure for the purpose of putting an end to his State or other public activity or in revenge for such activity;

• Attacking a representative of a foreign State or an internationally protected staff member of an international organization, as well as the business premises or vehicles of internationally protected persons;

• Other acts classified as terrorist under the national legislation of the Parties or under universally recognized international legal instruments aimed at combating terrorism.[44]

1.4. International instruments

Unsurprisingly, there is no more consensus on an international front than there is among various states, despite decades of debate.[45] However, the most widely recognized international definition is found in the International Convention for the Suppression of the Financing of Terrorism[46], which has been adopted by both Russia and Ukraine.[47] In addition to including prohibited acts from a variety of other treaties, Article 2(1)(b) defines terrorism as including:

any… act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

2. Definitional analysis

While the Russian and Ukrainian definitions are distinct, reflective of the general lack of consensus, both countries have agreed to other instruments which themselves vary from one another as well as the domestic definitions espoused by each country. A more comprehensive review of the similarities and differences surrounding these definitions can, perhaps, shed some light on the larger questions regarding the labelling of separatists as terrorists.

Plainly “[a] statutory definition, distinguished from a descriptive one, binds both the legislator and the people subject to the law, or the parties to a contract, to a particular definition of a word.”[48] There are numerous ways in which academics propose to categorise definitions of terrorism. Like the term “terrorism”, none are without fault and none are universally accepted (to the exclusion of others). However, a review of several such categorisations is helpful in understanding the definitions considered here.

2.1. The general/specific distinction

Returning to the definitions previously articulated, it is apparent that none are exclusively “specific” definitions. The Ukrainian definition places initial focus on specific acts – hostage-taking, arson, murder and torture – but then includes a broader element of intimidation and encroachment on the life or health of innocent people. Conversely, the Russian definition is the most “general” of the group, as it is not specifically limited to particular tactics. However, a “terrorist act”, as defined by the same statute, does provide more–specific, albeit not exclusive conduct, including explosion and arson.

The regional definition does not include a specific “method” component, although it does enumerate certain types of targets, such as statesmen and other protected persons – an apparent and somewhat unnecessary duplication given that the definition covers attacks and threats against all “natural or juridical persons.” Finally, the international definition combines both specific and general elements, enumerating various specific acts before concluding with the general “catch-all” of any act engaged in for various “terroristic” purposes.

2.2. Rodin’s fourfold classification system

Another approach posited by David Rodin[49] suggests that all terrorism definitions fall into one of the following categories:

1. Tactical and operational definition – weapons deployed (bombs) or mode of deployment (apparent randomness of attacks)

2. Teleological definition – focus on the ends or goals of violence. Some argue political acts, others that it is coercive, intended to have people or groups do things they otherwise would not do, or create terror.

3. Agent-focused definition – considering the nature of the actor, i.e. at sub-state level.

4. Object-focused definition – revolving around the class of target, such as innocent, neutral civilian or non-combatant. The immediate target is often of secondary importance to the broader group.

As discussed above, none of the instant definitions are exclusively specific, or tactical/operational definitions. All but the Russian definition include some element of the types of weapons or specific acts that comprise terrorism and the Russian definition of “terrorist acts” provides such specific context. Notably, none of the definitions focus on the nature of the actor or the actor’s underlying motivation for the conduct (i.e. political, religious, etc.). However, all but the Ukrainian definition indicate that influencing the government is a key aspect. The Ukrainian definition does include, as one particular type of conduct, intimidation of public authorities (and the population at large).

The object-focused definition – primarily whether the target must be innocents or civilians – is of particular import to our discussion. Only the international definition requires that the target be a civilian or other person not taking part in active combat. The Ukrainian definition mentions acts against “innocent people”, but only as one of several acts, the others (such as murder and arson) not being limited in this way. The regional definition discusses terrorising the population, but does not limit terrorism to even that general grouping. Finally, the Russian approach simply does not address the nature of the target of the attack (other than suggesting that the immediate target is not the group which the terrorists intend to influence).

2.3. The Schmid/Jongman analysis

In 2005, Schmid and Jongman published their seminal analysis of a broad array of terrorism definitions. In an earlier effort to develop a comprehensive definition, the authors collected 109 definitions and identified 22 terms which they then ranked in frequency.[50] In Schmid’s review, the focus was generally on the use of the particular words themselves, although occasionally certain “aspects” or areas of “emphasis” were denoted. While there are many instances over which the classification can be debated, and there is no bright-line test for inclusion or exclusion, these term-categories provide a useful means of comparing and contrasting the four definitions under discussion here.[51] One additional refinement has been made to Schmid’s approach – if a term appears to be a required or essential element, it is denoted with an “X”; if it is included as one of multiple alternative bases, it has been marked with the letter “A,” thus allowing for a more detailed comparative review.

ELEMENT

UKRAINE

RUSSIA

REGIONAL

TREATY

Violence, force

X

X

X

X

Political

X

Fear, terror emphasised

A

A

Threat

A

A

Psychological effects and anticipated reactions

X

X

Victim-target differentiation

A

X

A

X

Purposive, planned, systematic, organised action

X

X

X

Method of combat, strategy, tactic

X

X

X

Extranormality, in breach of accepted rules, without humanitarian constraints

Coercion, extortion, induction of compliance

A

A

A

Publicity aspect

Arbitrariness; impersonal, random character; indiscrimination

Civilians, non-combatants, neutrals, outsiders as victims

A

X

Intimidation

A

A

Innocence of victims emphasised

A

Group, movement, organisation as perpetrator

Symbolic aspect, demonstration to others

Incalculability, unpredictability, unexpectedness of occurrence of violence

Clandestine, covert nature

Repetitiveness; serial or campaign character of violence

Criminal

A

X

Demands made on third parties

X

X

X

As previously seen in the four-category analysis, none of these definitions address the nature of the agent (state or sub-state) or the motivation thereof. Interestingly, the definitions also ignore other factors which further describe actors and could potentially provide greater protection against accusations that the state is involved in terrorist activity, such as the clandestine nature of the act and groups as terrorists (although group considerations are often discussed in separate provisions). Another notable issue is the limited focus on a broader pattern or practice. That is, these definitions, while general in nature (as discussed above) appear to be comfortable with a single act or occurrence as “terrorism”, rather than a more nuanced approach examining arbitrariness of targets, repetitiveness of attacks and the group function discussed above.

Ultimately, this analysis suggests that these definitions, despite very different appearances and points of emphasis, seem to share more in common than differ.[52] Thus it seems that the odds favour, (at least to a degree) the idea that many of the acts of violence will be considered terrorism, not only under the Ukrainian definition thereof, but also under the other definitions reviewed here.

2.4. Evaluating the propriety of statutory definitions: A “legality”-based approach

There is no more central concept of criminal law in the modern era than that of nullum crimen sine lege, nulla poena sine lege – no crime without law, no punishment without law.[53] Such a principle embodies concepts such as:

• “No act that was not criminal under a law applicable to the actor…at the time of the act may be punishable as a crime.”[54]

• “No act may be punished by a penalty that was not authorised by a law applicable to the actor…at the time of the act.”

• “No act may be punished except by a law that is sufficiently clear to provide notice that the act was prohibited at the time it was committed.”

Keiran Hardy and George Williams propose three criteria, predicated on such notions, to assess the appropriateness of domestic definitions of terrorism. First, “criminal legislation should be drafted in language that is sufficiently clear and precise to give reasonable notice of the kinds of conduct that are prohibited.”[55] Second, the definition should be evaluated on whether it permits state actors to justify conduct beyond the legislation’s intended purpose.[56] Third, the definition should be consistent with international and other domestic definitions. Such consistency is necessary for both functional and normative purposes. It ensures that countries can cooperate “to prevent and prosecute terrorist attacks that transcend national borders,” while also supporting the “moral force” condemning acts of terrorism.[57]

2.4.1. Clarity and precision

As we have seen above, the Ukrainian definition is similar to many of its counterparts on the domestic and international levels. As a result, criticism and comment, while focused on Ukrainian legislation, are equally applicable to many others. In fact, there is no more a perfect definition of terrorism than there is a common one. Aspects of this provision provide just the sort of precision that is necessary to inform those who might be accused of violating it. E.g. by assuming that “publicly dangerous activity” is limited to those listed acts (which is a reasonable reading considering the “consisting of” limitation), we know that hostage-taking, arson, murder and torture are all prohibited, and one is plainly on notice that such activities are subject to criminal sanction under this statute. In addition, the “publicly dangerous” requirement seemingly further narrows the application of the statute, as simple murder is not enough; rather it requires a danger to the public itself. However, “intimidation of the population and public authorities or accomplishing other encroachments on the life and health of innocent people” provides little in the way of informing potential actors of what conduct is prohibited.

2.4.2. Overbreadth

For similar reasons, the statute is subject to potential application far beyond what is seemingly the purpose of an anti-terrorism statute. Clearly, the “purpose” of a definition may be widely divergent from state to state and may be subject to endless debate itself. One approach contemplates four major functions:

First, most domestic regimes provide for a designation process whereby persons or entities are certified as a “terrorist” or a “terrorist organization.” Such a designation often permits asset seizure or freezing, heightened monitoring, questioning, and detention. The definition determines who may be designated. Second, the definition forms an element of many terrorism-related offenses. Third, it allocates responsibility within government… Fourth, the definition of terrorism is crucial for delimiting responses to the problem.[58]

Despite adding some layering to the “purpose” of a terrorism statute, such an exposition seems only to raise additional questions, and reveals that, unsurprisingly, there may be various and inconsistent purposes behind the legislation. Regardless, the face of the provision itself suggests that, in an apparent attempt to include behaviour that might not fall within traditional criminal activity (i.e. murder, arson, etc.), it includes terminology that is not only lacking in clarity, but is also subject to extremely broad application. This includes the imprecise language quoted above, but also relatively clearer aspects – e.g. “threats of committing criminal acts to achieve a criminal purpose” – that open the door to utilisation of the statute in a context much broader than acts commonly viewed as terrorist, such as hostage-taking, hijacking and the like.

2.4.3. Consistency

As discussed at length above, the Ukrainian definition, while bearing its own unique traits, appears to share much in common with many of the other definitions of terrorism applied at domestic and international levels. As a result, it seemingly fares better in this portion of the analysis than the others. However, this actually reveals, not that the Ukrainian definition is more acceptable, but rather that there are inherent problems with many of the definitions of terrorism.

2.5. Separatist acts as terrorism

We now turn from an analysis of the definitions themselves to the matter of the application of those definitions to those being assigned the name. There are as many methods for determining the propriety of labelling a particular act an act of terrorism as there are countless definitions. However, for present purposes, we will confine the analysis to the specific state statutes, and the regional and international approaches, discussed above. In addition, we can look at key elements often found in terrorism definitions to determine what acts could properly be considered terrorism under such approaches.

2.5.1. The positivist perspective

From a positivist, national-legislation approach, the analysis is relatively simple. Do the various acts labelled as terrorism actually fit within the definition articulated by the state?

The Ukrainian approach requires some level of significant danger to the public in conjunction with certain specific acts – hostage-taking, arson, murder, and torture – or two catch-all provisions relating to intimidation or “other encroachments on the life and health of innocent people.” Bombings are often categorised as arson, but regardless, there is little dispute that the various missile/rocket attacks resulting in deaths would meet the requirements for such elements. Similarly, various bombings (even if they did not result in deaths) would be both publically dangerous and act to intimidate or encroach upon innocent people. Even the ambush of military personnel would appear, at least arguably, appropriate as any shootout is presumably a publicly dangerous activity, and one that resulted in the deaths of soldiers.

Limiting the application analysis to the Russian definition of “terrorism” per se illustrates the extreme flexibility afforded those interested in employing the term. Clearly there is some element of violence required, and, in each instance here, there is indeed some level of violence involved, including bombings, rocket-strikes, and gun-fire. The second element – the practice of influencing the adoption of a decision – could potentially be fulfilled by reference to either the intent of the actor or the result of the conduct.

Regardless, virtually any violent act could be seen as intending to influence the state to adopt some decision. Similarly, any violent act against government interests would be seen as an unlawful violent act. The definition of a “terrorist act” moves much closer to that utilised by Ukraine. While the intent to influence remains the same as in the “terrorism” definition, there are specific enumerated acts of explosion and arson, although a “catch-all” provision is also included. The definition includes “explosion” – thus, the bombings and rocket attacks are presumably “terrorist attacks” without any additional intent beyond the desire to influence the state to act (although the frightening of the public and risk of loss of life would seemingly be inherent under the circumstances). The attack on soldiers, however, which may have been limited to gunfire, would potentially require the frightening of the population and risk of loss of life or “other especially grave consequences.” Still, loss of life clearly occurred and the public could be frightened by the ambush of troops, so the requirements could potentially be fulfilled.

2.5.2. The supranational perspective

The regional definition articulated by the Commonwealth of Independent States is most interesting, due to its eschewal of specific acts in favour of overarching principles, then subject to far-reaching interpretation. Thus whether the attack is a result of bombing, shelling or gunfire is essentially irrelevant. It requires particularised forms of conduct, albeit ones that are quite broad, including “violence or the threat of violence against natural…persons” and “causing substantial harm to property.” Here, all of the purported “terrorist” acts would fulfill this requirement. Bombing and murder would qualify as illegal acts under criminal law, leaving only the “purpose” as a defining category. Purpose under the CIS Convention could be: (1) undermining public safety, (2) influencing decision-making by the authorities, or (3) terrorising the population.

This definition, while requiring purpose for every act and thus seemingly drawing us closer to a more typical definition of terrorism, also illustrates why general definitions may be easily manipulated to fit the circumstances of the day. While “terrorizing the population” appears to go to the heart of what “terrorism” truly is, almost any violent act can arguably meet that requirement, and the necessary conduct to “undermine public safety” or “influence decision-making” seems even more prone to abuse. While the majority of the acts discussed seemingly fit neatly into this definition (i.e. it is hard to argue that a business bombing or shelling of a bus does not at least include a purpose of “undermin[ing] public safety”), the military ambush and the downing of MH17 are somewhat different. The attack on military personnel certainly may have a military or strategic motivation that is different from those espoused here, while the destruction of the commercial airliner may simply have been a mistake – it is hard to see how it could have been intended for any strategic purpose. Regardless, the overarching focus on purpose makes for an interesting distinction from the state definitions.

The international definition found in the Terrorism Financing Convention is, in many ways, a return to the approach found in the state definitions. It begins with the inclusion of various specific acts found in other international treaties. This includes, for instance, the intentional destruction of a commercial airliner. [59] Provided that general intent can be proven, there is no need to delve into the more-nuanced general definition. A similar result is applicable when examining the bombings which are also the subject of a specific international treaty.[60] However, the bombings are also worth noting in the context of the general definition. Ignoring the fact that they are likely “terrorist acts” under the specific treaty provision, the acts do not necessarily appear to qualify as terrorist acts under the general definition, as they targeted specific physical property and do not appear to have been intended to cause death or serious bodily injury. Also of importance is the general requirement that the victim be a civilian or other person not taking active part in hostilities. Thus the ambush attack on soldiers does not appear to qualify as terrorism under the general provision of the Terrorism Financing Convention.

Another avenue for exploring terrorism as international crime is to compare it to those crimes prosecuted by the International Tribunals. The debate as to what makes a typical crime an atrocity crime – i.e. war crimes, crimes against humanity, genocide and aggression – continues. However, these crimes typically include a chapeau, an overarching provision which describes the elements that make what would otherwise be a ‘normal’ crime into an atrocity crime. By way of example, crimes against humanity require the specific act – murder, etc. – to be part of a widespread and systematic attack on a civilian population.[61] If the chapeau elements do not exist, then the crime is still a crime, just not an international one. If the chapeau elements do exist but the enumerated type of crime does not, there is no atrocity crime. Applied in the present context, a proper international definition of terrorism would begin with the “general” definition and then list those crimes typically included in the “specific” definitions. Such an approach would, perhaps, provide the cleanest definition of terrorism.

Put into practice, the general catch-all definition found in the Terrorism Financing Convention would become the chapeau, and the acts enumerated in the various cited treaties (and other specific acts) would be the means by which the crime could be committed. Thus the “atrocity crime” definition of terrorism could appear something like this:

Any [of the following] act[s] intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act:
1. Bombing/use of explosive devices
2. Hijacking
3. Hostage-taking/kidnapping
4. Murder
5. Etc.

Such a definition would be open to criticism for being too narrow, but adjustments could be made to the scope of the general definition as well as the enumerated means. Given the nature of the acts discussed herein, the result of applying such a definition would be the same as the discussion engaged in previously, in respect of the Terrorism Financing Convention’s general provision.

Interestingly, the one International Tribunal actually tasked with trying cases of terrorism has identified what it purports to be a customary rule of international law regarding the definition of terrorism. The Appeals Chamber for the Special Tribunal for Lebanon has stated:

This customary rule requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.[62]

Perhaps more interestingly, however, when it actually formulates the definition of terrorism which it intends to apply, it does not require the chapeau characteristic of other atrocity crimes. The elements are simply:

a) the volitional commission of an act;

b) through means that are liable to create a public danger; and

c) the intent of the perpetrator to cause a state of terror.[63]

Under such a broad definition, the only question with regard to acts in Ukraine would be whether the actors intended to cause a state of terror, which is something the country could argue with some reasonable belief.

2.5.3. The “moral” perspective

Another means of evaluating the propriety of the terrorism label for specific acts is to examine how those acts would fall under a just-war theory analysis. Just-war theory essentially provides a defence for the use of force; which is to say that non-compliance with each of the elements, leaves the use of violence as not justified morally. Just-war theory includes requirements for the right to go to war (jus ad bellum) and the right way to conduct war (jus in bello). This distinction, in many ways, reflects the current groupings of general and specific definitions of terrorism. If “terrorism” is inherently a term of condemnation (something that few would challenge), then application of the term is wholly inconsistent with the use of force that is acceptable under just war theory. In short, analyzing the acts at issue under a just-war rubric provides means to negate the viable application of the terrorism label.

The moral requirements for embarking upon war include the following:

(1) The actor has a just cause.

(2) The actor is a legitimate representative of its constituency.

(3) The actor is acting consistently with the cause that prompted war.

(4) War is a last resort.

(5) The probability of victory is sufficiently high to make going to war worthwhile.

(6) The anticipated costs of war do not surpass the anticipated benefits.[64]

There are several categories in which the separatists have at least arguably met the requirements for just-war, i.e. a just cause – self-determination; representation of a significant portion of the population in eastern Ukraine; acts pursuant to the cause; and proportionality, i.e. costs not higher than benefits. On the other hand, it seems significantly more difficult to argue that war was the only option, or even that the likelihood of victory was sufficiently high – although that factor is obviously contingent on the role Russia is willing to play.

Elements inherent to the conduct of just war include proportionality and discrimination. Here, an ambush attack on soldiers may pass these tests, as soldiers could be considered legitimate targets and there was not excessive loss of life (depending on the objectives of the attack). Bombings where no lives were lost could survive the proportionality requirement, but might still raise issues vis-a-vis the legitimacy of the targets. Acts resulting in significant loss of civilian life, including the downing of MH17 and the shellings in Mariupol and Donetsk, appear to fall well outside permissible means of conducting war. Thus, just war theory would not affect the propriety of labelling such acts as terrorism.

3. The defining of a “terrorist group” or “terrorist organisation”

As is made plain by the preceding discussion, defining specific incidences as acts of terrorism and the perpetrators as terrorists is challenging in and of itself. Yet in many cases, it seems relatively uncontroversial, at least in comparison with the extrapolation of such labelling to entire groups. Assuming that everyone could universally agree that the bombings in Odessa are acts of terrorism, and making the less-supported assumption that the attacks were committed by individuals who consider themselves separatists, it remains far from clear that such conduct should result in the labelling of all separatists as terrorists.

So how is a terrorist group or organisation defined? Assuming that at least some who are seen as members of the group commit terrorist acts, it remains challenging to ascertain the nature of the collective’s structure and the appropriate labelling of the members in the light of that structure.

Terrorist groups may be goal-directed, rationally-managed organizations. They may be networks of connected actors capable of self-organizing. They may be embedded in social movements wherein a diffuse sense of grievances aligns organizations, individuals, and other formerly inchoate elements. And they are rarely only one of these forms. They mutate, adapt, and restructure to remain viable within significant milieux and arenas of operation.[65]

Unsurprisingly, the regional and international agreements refer to such groups and organisations, but do not provide details on how such groups and organisations are to be designated. E.g.:

While most of the proposed definitions of “organization” [considered when formulating the Terrorism Financing Convention] emphasized the hierarchical structure of a group of persons with common objectives, the drafters began to raise doubt over the usefulness of defining “organization.” The convention was finalized and the drafters avoided including a definition of “organisation” probably in the view that the definition of “organization” may vary from one case to another.

Even the UN Security Council… has failed to define a “terrorist organization” or provide legal guidelines for identifying terrorist groups. Instead it has adopted an “operational” or listing and de-listing approach to the issue.[66]

Perhaps the challenge of reaching a consensus as to the nature of the act was a sufficient one with any further definitional issue simply representing a step to far.

Both Ukraine and Russia, however, provide some guidance at domestic level. Under Ukrainian legislation, a “terrorist group” is defined as “a group of two or more persons, united in order to carry out terrorist acts,” while a “terrorist organization” comprises “a stable association of three or more persons established to terrorist activity, with assigned functions and certain rules of conduct required of persons while preparing and committing terrorist acts.”[67] Essential for the present purposes is that: “[a]n organization may be recognized as a terrorist organization in its entirety if one of its units carries out terrorist activities with the knowledge of at least one of the leaders of the whole organization.”[68]

Russia prohibits “organisations whose goals or actions are aimed at popularisation, justification or support of terrorism, or at committing [enumerated] crimes.”[69]

An organisation shall be recognised as terrorist and shall be subject to liquidation (and its activities shall be subject to prohibition) by court decision… if on behalf or in the interests of this organisation the [enumerated] crimes… are arranged, prepared and committed, as well as if the said actions are committed by a person who controls the exercise by this organisation of its rights and discharge of its duties.[70]

While the precise basis for official Ukrainian designation of separatist organisations is unclear, both the Russian and Ukrainian legislation set the bar relatively low. Entire separatist organisations may be designated under Ukrainian law if a single terrorist attack is carried out with the knowledge (not necessarily approval) of a single member of the separatist leadership. Similarly, under Russian law, acts committed on behalf of an organisation (even if not approved thereby) may arguably provide the basis for the terrorist designation of an entire group. Consequently, it would appear that under the “letter” of the law, separatists could be designated as terrorists, even if it defies the general conception of terrorism and terrorist acts.

Such a result is problematic. On the one hand, the separatist groups appear to be relatively coordinated, with some command structure; yet there are clearly separate groups, and the rank and file lack the organisation and discipline of formal military units.[71] There is also a significant populist flavor to the separatist activities, given, at least in part, the ethnic and linguistic similarities many, especially in the east, share with Russia, although a majority, even in eastern Ukraine, favour unity.[72] In short, it is impossible to contend that all separatists condone terrorist attacks or even that all separatists are operating under an organised umbrella that condones terrorist acts. Another concern arises from the implication that all acts committed by a “terrorist” organisation are “terrorist acts.” Schmid…refers to the “faulty circular reasoning” behind the view that “once a group has been designated ‘terrorist’, all acts of violence by members of that group are ‘terrorist’ ”.[73] In other words, what may have been appropriate, or at least non-“terrorist” conduct before – e.g. an attack by irregular forces on an army outpost to destroy artillery that had been turned on their position – could now be an act of terrorism because it was carried out by members of a terrorist group, so defined because of uncoordinated acts by other individuals. Lumping all separatists together as terrorists is problematic at best and simply unfair at worst, particularly given the consequences of such labelling.

4. Consequences of the terrorist label

So why, when a word is so subjective and troublesome, would one ever classify an act as terrorism? There are certainly benefits – uniting the public, defining the threat, even simply explaining what has occurred. But for virtually every benefit, there are very compelling considerations cutting against the application of the terminology, at least in its present form.

4.1. Domestic considerations

An essential function of a terrorism definition is that its appropriate use triggers important internal mechanisms useful in combating real threats to a state and its population.[74] “[N]ational laws now criminalise ‘terrorist acts’, give police enhanced powers of investigation and arrest in regard to such offenses, establish regimes for the electronic surveillance of people suspected of terrorism, deny visas to people engaged in terrorism, freeze the assets of ‘terrorist organisations’ and impose trade sanctions on countries that harbour or support terrorists.”[75] It may also serve to initiate certain protocols for first-responders, although the nature of the threat may be critical to such efforts – i.e. a chemical threat certainly requires different precautions and tactics than a conventional bombing. An individual labelled a terrorist may also be subject to specific criminal provisions, under which penalties are enhanced and the procedures utilised in conducting trials modified.

However, such responses often come at a price. “In the United States and other nations, being labeled a terrorist carries different consequences ranging from trial in a specialized court to a delay in or denial of access to counsel and other pretrial constitutional protections, restrictions on freedom of expression, or weakened constitutional protections of privacy rights in the home. In countries facing serious national security threats, the label of terrorism can have a deep and meaningful effect on those deemed to be ‘terrorists’ and on counterterrorism law and policy as a whole.”[76]

The use of the term may serve a political purpose, rallying government officials and the public alike behind a common cause. Ultimately, it may be cited as justification to engage in armed conflict, and govern the rules of engagement employed during such operations. However, fear is often the underlying motivator justifying such acts. Decrying an act as “terrorism” may actually magnif[y] the effect of terrorist actions by heightening the fear among the target population. If we demonise the terrorists, if we portray them as arbitrary irrational beings with a “disposition toward unbridled violence,” then we are amplifying the fear and alarm generated by terrorist incidents.[77]

“This has led to the arguably unintended consequences of disparate impact on outsider groups and the unmooring from rule of law principles.”[78]

Within the political and social spheres, the terrorism label may shut off any debate regarding the opposition’s contentions.

The prevalent rhetoric of “terrorism” has… shut off any meaningful examination of causes or debate on policies and has left only the path of violence to solve differences. Rather than promoting a free and open examination of the grievances of the group from which terrorists emerge, the “terrorist” label nips all questioning and debate in the bud.[79]

In addition to having a chilling effect on internal debate, the assignment of the ‘terrorist’ terminology to an opponent may similarly limit the opportunity for peaceful resolution. Once the definition is assigned, it:

• erases any incentive that an audience might have to understand the point of view of those individuals and groups, so that any history behind their grievances might conveniently be ignored;

• deflects attention away from one’s own policies that might have contributed to the above grievances;

• repudiates any calls to negotiate;

• paves the way for the use of force and violence in dealing with them and in particular, gives a government “freedom of action” by exploiting the fears of its own citizens and stifling any objections to the manner in which it deals with them.[80]

Labelling individuals or groups as terrorists may also actually enhance the strength and resolve of that group, arguably justifying their contentions that the state is acting in an oppressive manner. The terrorist label may well extend beyond those actually committing the acts at issue, thus compelling those who had not previously been involved in such actions to join the fray. Additionally, if those labelled as terrorists are part of a broader identifiable group, then those within that group may also feel threatened and thus compelled to action, broadening the circles of those willing to commit violent acts against the state. Those within the broader group may also be targeted unfairly, particularly if they derive from an identifiable minority located within a territory subject to terrorist attacks.

Whether subject to government attacks or mistreatment from the general population, the cycle of violence seems likely only to increase, absent extremely precise counterterrorism strikes.

[S]hort of genocide, a violent response is likely to stiffen the resolve of those from whose ranks terrorists have emerged, leading them to regard their foes as people who cannot be reasoned with, as people who because they avail themselves so readily of the “terrorist” rhetoric know only the language of force. As long as they perceive themselves to be victims of intolerable injustices and view their oppressors as unwilling to arrive at an acceptable compromise, then they will reply with more violence against their oppressors.[81]

4.2. International considerations

As has been discussed throughout this chapter, there are a number of treaties and conventions at the regional and international levels which address various forms of terrorism. Assuming various conditions are met, those agreements may impose various duties on states parties. Even where a treaty is not invoked specifically, designation of individuals or groups may assist in obtaining state cooperation in combating a particular threat. If an individual is recognised as a terrorist, many countries would presumably be more likely to take action to apprehend and extradite than under other circumstances; nations would also have greater reason to act to seize assets of terrorist organisations under domestic authority if the terrorist label triggered pertinent statutes. A downside, however, is that certain states may reject using the term, thereby legitimising the group and presenting a greater obstacle to addressing the threat than had existed before the regime gained international notoriety. In addition, even where condemnation is universal, it may also serve to enhance the status of those committing the violence. ISIS (ISIL, Daesh), for example, has made a significant imprint on the global scene in large part due to the reactions of various nations. It has been very successful in drawing outsiders to its cause, through its extreme tactics and savvy use of social media.

Additionally, international criminal tribunals do not typically prosecute “terrorism”. Historically, acts of terrorism have not typically resulted in the same level of casualties as the mass violence that is addressed by these Courts. Additionally, the International Criminal Court defers prosecution to the state under most circumstances, and states (unless the government is the perpetrator) are generally highly motivated to prosecute those who have committed violence against their citizens. Potentially then, the use of the “terrorist” terminology could lend itself to interstate cooperation, while limiting the potential for international prosecution.

Conclusions

Loss of innocent life, especially if achieved intentionally or recklessly, is deplorable and merits condemnation. Those responsible should be held accountable, regardless of what government or faction they represent. But the question at issue here is whether militant separatists are appropriately labelled as terrorists. Simply put, “[t]he definition of terrorism ought not to label as terrorists those whom the label does not fit.”[82] From a positivist, state-centric perspective, labelling the militants under study in this paper as terrorists is a wholly reasonable proposition. The elements of the Ukrainian definition are met, as are those of the Russian definition, for that matter. Many of the acts arguably meet regional and international definitions, and even most of the more-theoretical approaches. Yet those definitions are subject to criticism both in their lack of specificity, failing to meet “[t]heir argumentative purpose…to establish an unambiguous lexicon with a view to prevent potential ambiguities,”[83] and in their uneven application. Far more concerning, however, is the extension of the terrorist rubric to all separatists. It is not clear that such application is definitionally appropriate or, more importantly, that it is a step likely to prove helpful in addressing the violence in Ukraine, particularly where the end goal is to ameliorate the threat. Delineating between discrete acts of terrorism and the broader separatist movement seems a wise course, unless and until there remains no question that the “terrorist” attacks are part of a coordinated strategy by particular groups of separatists. At that point, distinguishing between those specific groups and the broader separatist movement would again seem prudent. Simply labelling the entire separatist movement as terrorists and then using that terminology to justify significant and indiscreet military action would simply assist those responsible for atrocity crimes and other unacceptable violence as they seek to usurp the concerns of a child and contend: ‘Is terrorism coming to us or from us?’

Abstract: The term “terrorism” is politically charged and easily abused. From a positivist, state-centric perspective, labelling pro-Russian Ukrainian militants as terrorists is a wholly reasonable proposition. The elements of the Ukrainian definition appear to be met, as are those of the Russian definition. Many of the acts attributed to these separatists also appear to meet regional and international definitions, and even most of the more theoretical approaches. Yet such definitions are subject to criticism both in their lack of specificity and their uneven application. Far more concerning, however, is the extension of the terrorist classification to all pro-Russian militants. It is not clear that such application is definitionally appropriate or, more importantly, that it is a step likely to prove helpful in addressing the violence in Ukraine, particularly where the end goal is to ameliorate the threat. Delineating between discrete acts of terrorism and the broader separatist movement seems a wise course, unless and until there remains no question that the ‘terrorist’ attacks are part of a coordinated strategy by particular groups of separatists. At that point, distinguishing between those specific groups and the broader separatist movement would again seem prudent.

Keywords: terrorism, terrorists, militants, separatists, Ukraine.

[*] Matthew C. Kane, an adjunct/visiting professor at the University of Oklahoma College of Law, where he teaches courses on comparative responses to terrorism and political violence, comparative criminal law and international criminal law. He is also a partner at Ryan Whaley Coldiron Jantzen Peters & Webber, focusing on federal criminal defense and complex civil litigation. He is admitted to the List of Counsel for the International Criminal Court and is a founding member of the ICC Scholars Forum.

[1] Doctors without borders, Ukraine: ‘When the Shelling Starts…You Just Run to the Closest Basement, 18 February 2015, http://www.doctorswithoutborders.org/article/ukraine-when-shelling-startsyou-just-run-closest-basement [accessed: 01.09.2017].

[2] BBC, Putin reveals secrets of Russia’s Crimea takeover plot, 9 March 2015, http://www.bbc.com/news/world-europe-31796226 [accessed: 01.09.2017]; N. MacFarquhar, Early Memo Urged Moscow to Annex Crimea, Report Says, New York Times, 25 February 2015, http://www.nytimes.com/2015/02/26/world/europe/russia-ukraine-crimea-annexation.html?_r=0 [accessed: 01.09.2017].

[3] D. Herzenhorn, Ukraine Suspects Terrorism in Pipeline Explosion, New York Times, 17 June 2014, http://www.nytimes.com/2014/06/18/world/europe/ukraine-suspects-terrorism-in-pipeline-explosion.html [accessed: 01.09.2017].

[4] S. Tavernise, E. Schmitt & R. Gladstone, Jetliner Explodes Over Ukraine; Struck by Missile, Officials Say, New York Times, 17 July 2014, http://www.nytimes.com/2014/07/18/world/europe/malaysian-airlines-plane-ukraine.html?_r=0 [accessed: 01.09.2017].

[5] Pro-Russian rebel rockets kill at least 30 in Mariupol, Associated Press, 24 January 2015, http://www.cbc.ca/news/world/pro-russian-rebel-rockets-kill-at-least-30-in-mariupol-1.2930529 [accessed: 01.09.2017].

[6] N. Shchetko Shelling Kills at Least 8 at Bus Stop in Donetsk, Eastern Ukraine, Wall Street Journal, 22 January 2015, http://www.wsj.com/articles/shelling-kills-13-at-bus-stop-in-donetsk-1421917147 [accessed: 01.09.2017].

[7] C. Flintoff, Who’s Behind a String of Bombings in Ukraine’s Black Sea ‘Pearl,’ NPR, http://www.npr.org/sections/parallels/2015/07/01/418905297/whos-behind-a-string-of-bombings-in-ukraines-black-sea-pearl [accessed: 01.09.2017].

[8] Prosecutor General’s Office, The self-proclaimed republic in the Donetsk and Lugansk regions classified as terrorist organizations, 16 May 2014, http://www.gp.gov.ua/ua/news.html?_m=publications&_c=view&_t=rec&id=138582 [accessed: 01.09.2017].

[9] P. Poroshenko, Ukraine needs the U.S. to respond to Russia, Washington Post, 25 July 2014, https://www.washingtonpost.com/opinions/petro-poroshenko-ukraine-needs-the-us-to-respond-to-russia/2014/07/25/c3452338-141f-11e4-98ee-daea85133bc9_story.html?utm_term=.cd44ed1c7c89 [accessed: 01.09.2017]. President Poroshenko would subsequently claim that the bus shelling was “the same level of terrorism attack like Charlie Hebdo, or the MH17 plane.” Katrina Bishop, Ukraine President: This ‘terrorism’ needs to stop, CNBC, 21 January 2015, http://www.cnbc.com/2015/01/21/ukraine-president-this-terrorism-needs-to-stop.html [accessed: 01.09.2017].

[10] Pro-Russian rebels officially labelled terrorists by Ukraine government: Separatists be subject to Ukraine counter-terrorism law, analyst says, AP, 27 January 2015, http://www.cbc.ca/news/world/pro-russian-rebels-officially-labelled-terrorists-by-ukraine-government-1.2933845 [accessed: 01.09.2017].

[11] P. Polityuk, Ukraine names detained Russian soldier, charges him with terrorism, Reuters, 29 July 2015, http://www.reuters.com/article/2015/07/29/us-ukraine-crisis-soldier-idUSKCN0Q31ZB20150729 [accessed: 01.09.2017].

[12] European Parliament Resolution of 15 January 2015 on the situation in Ukraine (2014/2965/RSP).

[13] C. Begorre-Bret, The Definition of Terrorism and the Challenge of Relativism, 27 Cardozo L. Rev. 1987 (2006), p. 1987, citing N. Stephen, Toward a Definition of Terrorism, in: C. Coady & M. O’Keefe (eds.), Terrorism and Justice: Moral Argument in: a Threatened World, Melbourne University Press, Carlton South, Vic.: 2002, p. 1.

[14] For a review of the many attempts in international law, see B. Saul, Attempts to Define ‘Terrorism’ in International Law, 52 Netherlands International Law Review 57 (2005), pp. 57–83.

[15] R. Jagtap, Defining International Terrorism: Formulation of a Universal Concept out of the Ideological Quagmires and Overlapping Approaches, 4 Journal of Philosophy of International Law 56 (2013), p. 59, citing Carlos Fernando Diaz-Paniagua, Negotiating Terrorism: The Negotiation Dynamics of Four UN Counterterrorism Treaties, ProQuest, Ann Arbor: 2008, p. 41. With regard to the first purpose, the author continues: “The criminalisation of terrorist acts expresses society’s repugnance at them, invokes social censure and shame, and stigmatises those who commit them.”

[16] Begorre-Bret, supra note 13, p. 1994.

[17] E. Reitan, Defining Terrorism for Public Policy Purposes: The Group-Target Definition, 7 Journal of Moral Philosophy 253 (2010), p. 254.

[18] Begorre-Bret, supra note 13, p. 1989.

[19] Ibidem, p. 1990.

[20] J. Gibbs, Conceptualization of Terrorism, 54 American Sociological Review 329 (1989), p. 334.

[21] Begorre-Bret, supra note 13, p. 1990.

[22] Reitan, supra note 17, p. 254.

[23] D. Rodin, Terrorism without Intention, 114 Ethics 752 (2004), p. 752–753.

[24] T. Kapitan & E. Schulte, The Rhetoric of ‘Terrorism’ and its Consequences, 30 Journal of Political and Military Sociology 172 (2002), p. 179; Begorre-Bret, supra note 13, p. 1991–1992.

[25] Collins Dictionary, “indexical”, http://www.collinsdictionary.com/dictionary/english/indexical [accessed: 01.09.2017].

[26] Reitan, supra note 17, p. 254, quoting V. Held, Terrorism, Rights, and Political Goals, in: J. Brady & N. Garver (eds.), Justice, Law, and Violence, Temple University Press, Philadelphia: 1991, p. 223.

[27] H. Cooper, Terrorism: The Problem of Definition Revisited, 44 American Behavioral Scientist 881 (2001), p. 884.

[28] Begorre-Bret, supra note 13, p. 1991. It is easy to “demonise” one’s opponents because they are “violating the canons of our social organization and would draw us into a brutal state of nature. They are ‘beasts’ that can only be dealt with on their own terms, according to the laws of the Jungle under which disagreements are settled through violence or the threat of such.” Kapitan & Schulte, supra note 24, p. 180.

[29] Gibbs, supra note 20, p. 337–338.

[30] Some have suggested this is precisely the approach Russia takes. “Russia declares that every act of violence against the state is a terrorist act, so that the terrorists are always ‘them.’ But Russia never accepts that it could be the terrorist of anybody. That is why the Russian Federation, along with other states, prevents the UN from elaborating an international definition of terrorism.” Begorre-Bret, supra note 13, p. 1994.

[31] J. Stroop, The Stroop Report: The Jewish Quarter of Warsaw is No More!, Pantheon Books, New York: 1979; see also Kapitan & Schulte, supra note 24, p. 178, citing E. Herman & G. O’Sullivan, The Terrorism Industry, Pantheon Books, New York: 1989, p. 261.

[32] A. Richards, Conceptualizing Terrorism, 37 Studies in Conflict and Terrorism 213 (2014), p. 227.

[33] B. Golder & G. Williams, What is ‘Terrorism’? Problems of Legal Definition, 27(2) UNSW L. J. 270 (2004), p. 286. “According to this approach, international legal scholars have not attempted to define terrorism as a general concept per se, but rather have attempted to define (and proscribe) specific actions such as hijacking, the taking of hostages, and so forth. This can be contrasted with the general (or deductive) model, whereby the definer attempts to articulate a general concept of terrorism by reference to certain overarching criteria (such as, for example, intention or motivation). In adopting the specific approach, international law has adapted itself to the ‘predominant form of terrorist action at any given time’, and has attempted to sidestep the political sensitivity of the broader definitional question.” Ibidem, p. 273.

[34] Ibidem, p. 287.

[35] Ibidem.

[36] Ibidem, p. 288, quoting G. Levitt, Is “Terrorism” Worth Defining?, 13 Ohio Northern University Law Review 97 (1986), p. 111.

[37] Recognising this concern, those supporting a general definition often contend that the definition needs to include an exception for civil disobedience, public protest and industrial action. Golder & Williams, supra note 33, p. 289, 291.

[38] Ibidem, p. 273.

[39] Reitan, supra note 17, p. 256.

[40] M. Stevens, What is Terrorism and Can Psychology Do Anything to Prevent It?, 23 Behavioral Sciences and the Law 507 (2005), p. 513.

[41] Russian Federation Federal Law No. 35-FZ on Counteraction of Terrorism, 6 March 2006, http://www.legislationline.org/documents/id/4365 [accessed: 01.09.2017]. It is worth noting that this definition marks a significant departure from its prior statutory approach. Historically, Russia defined terrorism in a more traditional manner as “violence or the threat of violence against individuals or organizations, and also the destruction (damaging) of or threat to destroy (damage) property and other material objects, such as threaten to cause loss of life, significant damage to property, or other socially dangerous consequences and are implemented with a view to violating public security, intimidating the population, or influencing the adoption of decisions advantageous to terrorists by organs of power, or satisfying their unlawful material and (or) other interests; attempts on the lives of statesmen or public figures perpetrated with a view to ending their state or other political activity or out of revenge for such activity; attacks on representatives of foreign states or staffers of international organizations enjoying international protection, and also on the official premises or vehicles of persons enjoying international protection if these actions are committed with a view to provoking war or complicating international relations.”

[42] Ibidem.

[43] Interestingly, Ukraine was chairing the organisation in 2014, before withdrawing after the Russian annexation of Crimea, http://sputniknews.com/voiceofrussia/news/2014_05_27/Ukraine-withdraws-from-Commonwealth-of-Independent-States-media-3170/ [accessed: 01.09.2017].

[44] Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating Terrorism, 4 June 1999, Art. 1. Russia, along with China, Kazakhstan, the Kyrgyz Republic, Tajikistan and Uzbekistan, is also party to the Shanghai Convention on Combating Terrorism, Separatism and Extremism, 15 June 2001. Art. 1.1.1.b of that instrument provides the following definition, after enumerating various specific actions: “any other act intended to cause death or serious bodily injury to a civilian, or any other person not taking an active part in the hostilities in a situation of armed conflict or to cause major damage to any material facility, as well as to organize, plan, aid and abet such act, when the purpose of such act, by its nature or context, is to intimidate a population, violate public security or to compel public authorities or an international organization to do or to abstain from doing any act, and prosecuted in accordance with the national laws of the Parties.”

[45] For a substantive discussion, see J. Friedrichs, Defining the International Public Enemy: The Political Struggle behind the Legal Debate on International Terrorism, 19 Leiden Journal of International Law 69 (2006), p. 69–91.

[46] United Nations General Assembly Resolution 54/109 of 9 December 1999.

[47] See U.S. Department of State, Appendix D: Signatories to the International Convention for the Suppression of Terrorist Financing, 30 April 2001, http://www.state.gov/j/ct/rls/crt/2000/2463.htm [accessed: 01.09.2017].

[48] Jagtap, supra note 15, p. 56. In the instance circumstance, it should be noted that when dealing with transnational or international terrorism at least some of those subject to the law are not parties to the contract (i.e. Russians operating in Ukrainian territory) while those that arguably are, are in direct conflict with the government that seeks to enforce the law.

[49] Rodin, supra note 23, p. 753–755. C. Begorre-Bret offers a similar definitional typology, looking at: (1) Quantity and status of victims and targets; (2) Nature of the authors – not just irregulars. Status alone cannot define what is/is not terrorism; (3) Modus operandi – means, type of weapons. Different acts for different goals; (4) Terrorist effects – not just “terror,” can show state’s weakness, shock over clarity of message; (5) Goals – territorial/new state, new regime, etc. Begorre-Bret, supra note 13, p. 2001–2004.

[50] A.P. Schmid et al., Political Terrorism: A New Guide to Actors, Authors, Concepts, Data Bases, Theories, and Literature, Transaction Books, New Brunswick: 1988, pp. 5–6.

[51] In addition to the explanation of categories advanced by Schmid and Jongman, the additional extrapolation advanced by J. Balckbourn, F. Davis & N. Taylor, in: Academic Consensus and Legislative Definitions of Terrorism: Applying Schmid and Jongman, 34 Statute Law Review 239 (2012), p. 246–249, is worth noting although the conclusions therein were not generally applied here.

[52] While not a focal point of this paper, the EU definition of terrorism, found at EU Council Framework Decision of 13 June 2002 on combating terrorism, (2002/475/JHA), OJ L 164, 22/06/2002, Art. 1(1), is of interest given the European Parliament’s condemnation of “terrorism” by separatists. Supra note 12. Briefly, the EU approach requires:

(1) an enumerated

(2) “intentional act,”

(3) defined as offenses under national law

(4) which “may seriously damage a country or an international organization,”

(5) where committed with:

(a) the aim of “intimidating a population,”

(b) “unduly compelling a Government or international organization to perform…an act” or

(c) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.”

This definition is far more limiting than the others discussed herein, as it takes a restrictive “specific” approach which is then further qualified by various elements found in general definitions (i.e. intentional, criminal, intimidate, compel, etc.). It is unclear what particular acts were committed by separatists which would fulfill these criteria (or if this definition was considered by the MEPs when condemning “terrorism” in eastern Ukraine.

[53] M. Bassiouni, International Criminal Law (3rd ed.), Martinus Nijhoff Publishers, Leiden: 2008, v. 1, p. 73.

[54] K. Gallant, The Principle of Legality in International and Comparative Law, Cambridge University Press, Cambridge: 2009, p. 11.

[55] K. Hardy & G. Williams, What is ‘Terrorism’?: Assessing Domestic Legal Definitions, 16 U.C.L.A. J. Int’l L. & For. Aff. 77 (2011), p. 104.

[56] Ibidem, p. 104–105.

[57] Ibidem, p. 107, 109. See also S. Zeidan, Agreeing to Disagree: Cultural Relativism and the Difficulty of Defining Terrorism in a Post-9/11 World, 29 Hastings Int’l & Comp. L. Rev. 215 (2006) (discussing the global condemnation of the 9/11 attacks despite the impact of cultural relativism on states’ definitions).

[58] R. Young, Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation, 29 B.C. Int’l & Comp. L. Rev. 23 (2006), p. 69.

[59] The Convention for the suppression of unlawful seizure of aircraft, 16 December 1970, Art. 1: “Any person who on board an aircraft in flight: (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or (b) is an accomplice of a person-who performs or attempts to perform any such act commits an offence.”

[60] The International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997, Art. 1: “Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: (a) With the intent to cause death or serious bodily injury; or (b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in: or is likely to result in major economic loss.”

[61] See e.g. Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July 1998, Art. 7; Security Council Resolution 955 (1994), Statute of the International Criminal Tribunal for Rwanda, Art. 3; Security Council Resolution 827 (1993), Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 5.

[62] Special Tribunal for Lebanon, STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 Feb. 2011, para. 85. See also E. Mylonaki, Defining Terrorism: the Contribution of the Special Tribunal for Lebanon, 1 Jura: A Pecsi Tudomanyegyetem Allam- es Jogtudomanyi Karanak tudomanyos lapja 78 (2012).

[63] Special Tribunal for Lebanon, STL-11-01/I, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, 16 Feb. 2011, para. 147.

[64] Stevens, supra note 40, p. 515–516.

[65] J. Comas, P. Shrivastava & E. Martin, Terrorism as Formal Organization, Network, and Social Movement, 24(1) Journal of Management Inquiry 47 (2015), p. 48.

[66] H. Tofangsaz, Terrorism or not terrorism? Whose money are we looking for?, 22 Journal of Financial Crime 378 (2015), p. 384–385. The author goes on to introduce organisational definitions adopted by the EU Council Framework Decision of 13 June 2002 on Combating Terrorism, which defined a terrorist group as a ‘structured group of more than two persons which is established over a period of time and acting in concert to commit terrorist offences, as well as that utilised by the Financial Action Task Force, which more generically discusses a group that commits, participates as an accomplice, organises, directs or contributes to the commission of terrorist acts. Ibidem, p. 385–386.

[67] Law of Ukraine VVR, 2003 N 25, st. 180, as amended by the Law N 2600-IV (2600-15) of 31.05.2005, VRR, 2005 N. 25, st. 335.

[68] Ibidem.

[69] 2006 Law, supra note 41, Art. 24(1).

[70] Ibidem, Art. 24(2).

[71] S. Shuster, Meet the Pro-Russian Separatists of Eastern Ukraine, Time Magazine, 23 April 2014; Prosecutor General’s Office, The self-proclaimed republic in the Donetsk and Lugansk regions classified as terrorist organizations, 16 May 2014, http://www.gp.gov.ua/ua/news.html?_m=publications&_c=view&_t=rec&id=138582 [accessed: 01.09.2017].

[72] Pew Research Center, Despite Concerns about Governance, Ukrainians want to Remain One Country, 8 May 2014, http://www.pewglobal.org/2014/05/08/despite-concerns-about-governance-ukrainians-want-to-remain-one-country/ [accessed: 01.09.2017]

[73] Richards, supra note 32, p. 215, quoting in part: A. Schmid (ed.), The Routledge Handbook of Terrorism Research, Routledge, New York: 2011, p. 88.

[74] J. Hodgson & V. Tadros, The Impossibility of Defining Terrorism, 16 New Crim. L. Rev. 494 (2013), p. 497

[75] Golder & Williams, supra note 33, p. 271.

[76] S. Setty, What’s in a Name? How Nations Define Terrorism Ten Years after 9/11, 33 U. Pa. J. Int’l 1 (2011), p. 3–4.

[77] Kapitan & Schulte, supra note 24, p. 185.

[78] Setty, supra note 76, p. 2.

[79] Kapitan & Schulte, supra note 24, p. 183–184. “Because of its negative connotation, the ‘terrorist label automatically discredits any individuals or groups to which it is affixed; it dehumanizes them, places them outside the norms of acceptable social and political behavior, and portrays them as people who cannot be reasoned with…The net effect is that the ‘terrorist’ rhetoric effectively shuts down all meaningful debate on policy or tactics, and leaves only the path of violence to solve differences.” Ibidem, pp. 178–179.

[80] Ibidem.

[81] Ibidem, p. 185.

[82] Hodgson & Tadros, supra note 74, pp. 496–497.

[83] Jagtap, supra note 15, p. 56.

The Shooting Down of Malaysia Airlines Flight MH 17
Sigmar Stadlmeier[*]

doi: 10.7366/9014Crimea17

Introduction

In the context of the events discussed in the present volume many lives have been lost already. But one “spectacular” tragedy stands out from the many because it involved an aviation incident, with all the media coverage that such events typically attract. More than one year has passed since the crash of Malaysia Airlines flight MH 17 in July 2014, but very little has so far been published on the legal aspects of this tragedy. While facts were still under investigation at the time this paper was submitted, some legal issues can already be identified. Articles already published focus on aviation-law issues in the narrower sense;[1] this brief paper attempts to discuss the tragedy of flight MH 17 from a more comprehensive public international law point of view.

1. Facts

1.1. Details of the flight

On 17 July 2014, Malaysia Airlines operated flight MH 17, code-shared with the Dutch airline KLM as KL 4103, scheduled from Amsterdam[2] to Kuala Lumpur[3]. The aircraft was a Boeing 777–200ER (“Triple Seven” extended range) series, registered in Malaysia under the callsign 9M-MRD. The flight left Amsterdam at 10:31 UTC[4] with 283 passengers and 15 crew aboard, and proceeded via northern Germany, Poland and Ukraine, whose airspace it crossed at an altitude of flight level (FL) 330, equal to 33,000 feet or 10,060 meters at a standard altimeter setting.[5] The records of both the flight data recorder (FDR) and cockpit voice recorder (CVR) end abruptly at 13:20:03 UTC[6], when the aircraft disintegrated in flight and crashed near the village of Hrabove, Ukraine.

1.2. Initial findings

While the accident is currently under investigation by the Dutch Safety Board, a preliminary report was issued in September 2014 and is available on the DSB website.[7] Publication of the final report is expected in October 2015. At this time, this paper will have gone to print; facts are therefore taken from the preliminary report and other open sources as quoted. The preliminary report gives evidence of multiple holes and indentations in pieces of wreckage from the cockpit and forward area of the aircraft. The distribution of wreckage over a large area indicates that the aircraft did not hit the ground in one piece, but broke up in mid-air before impact. The pattern of damage observed in the forward fuselage and cockpit section of the aircraft was consistent with what would be expected from a large number of high-energy objects penetrating the aircraft from outside.[8] This also happens to be consistent with the damage one could expect from a fragmentation warhead detonated by a proximity fuse approaching its target from ahead.

1.3. Theories and speculations vs facts

The aircraft was by no means the only one using the particular route it took across Ukraine (L980). Records of www.flightradar24.com indicate that a huge number of aircraft from other major airlines such as Aeroflot, Singapore Airlines, Ukraine International Airlines, Lufthansa, Thai Airways, Air India, Etihad, KLM, Austrian and others had been using this route during the month in question. In particular, at the relevant time (13:20 UTC on 17 July 2014), three other aircraft were close to MH 17, i.e. another Boeing 777 of Singapore Airlines on a near parallel course at FL 350 (i.e. 2000 feet or some 600 meters above MH 17, thus sufficiently separated vertically), yet another Boeing 777 at the same altitude as MH 17 but further south (i.e. sufficiently separated laterally), and an Airbus A 330 on a reciprocal heading at FL 400 (i.e. way above).[9] In the absence of any evidence to the contrary it would therefore seem that MH 17 was a random victim. The investigation focuses on this aircraft having been shot down by a surface-to-air missile (SAM) used by the Russian-made BUK M1 weapons system (NATO codename SA 11 “Gadfly”), as the most probable cause. According to open sources[10] the BUK M1 is a radar-guided system with a nominal range of just under 50 km and an interception range of just under 25 km.[11] It carries a 70 kg warhead, large enough to cause the damage observed in the wreckage of MH 17.

Rumours and photographic “evidence” of other aircraft having shot down flight MH 17 emerged as either falsifications[12] or implausible. as the latter case extends to speculations as to a possible shoot-down of MH 17 by a Ukrainian Sukhoi-25: The SU 25 (NATO codename “Frogfoot”) is the tactical equivalent of the US Fairchild A-10 “Thunderbolt II” and a dedicated air-to-ground fighter. According to open sources[13] its service ceiling without external loads (!) is 7000 m; hence it could not even have reached MH 17 cruising at 10.000 m. A modernised version (TK) with new engines can reach up to 12,000 m, but again without external loads such as missiles. In any case, an SU 25 does not carry an on-board radar system and hence cannot – for a lack of target-designation capabilities – be equipped with radar-guided air-to-air missiles (AAM), but only with certain infrared-guided ones. Those in turn are equipped with much smaller warheads (the AA-2 “Atoll” 11 kg, and the AA-8 “Aphid” 3.5 kg), and would head for the hottest spot of a target, which in the case of an airliner would be one of the engines under the wing rather than the cockpit or forward fuselage area. Neither the level, nor the location of damage are thus consistent with an infrared-guided AAM carrying a rather small warhead and hitting a target the size of a Boeing 777.

2. Legal issues

2.1. Accident investigation

In accordance with Annex 13 to the 1944 Chicago Convention on International Civil Aviation[14], the State of Occurrence shall institute an investigation into the circumstances of an accident, but may delegate the whole or any part of such investigation to another state by mutual arrangement and consent. The State of Manufacture of the aircraft involved, as well as any state having suffered a large number of casualties among its citizens may be invited to participate. Since 193 victims on board were Dutch nationals, The Netherlands might have participated anyway, and the Ukrainian and Dutch authorities agreed that The Netherlands should perform the accident investigation.

2.2. Use of force against civil aircraft

Art 3bis of the Chicago Convention prohibits the use of force against civil aircraft in flight. The only exception, self-defence, is not an issue in the case in question and can be left out of the scope. Should Ukrainian forces have shot down MH 17 there would have been a clear-cut violation of a treaty obligation under international law, giving rise to consequences under the Chicago Convention[15] as well as under the general rules on state responsibility.[16] Individual claims of either dependents of victims or the airline or insurance companies who may already have paid money to the former could be brought by the respective Home States against Ukraine on the basis of the right to diplomatic protection against treatment unlawful under international law.

Should separatist forces have had access to a BUK M1 system and be responsible for the shooting down of MH 17, the case under the Chicago Convention is less clear-cut, since only States Parties bear obligations under that Convention. State responsibility results from a violation of an international obligation attributable to a state,[17] and, in accordance with the landmark judgement of the ICJ in the Nicaragua vs U.S. (merits) case[18], the conduct of non-State actors can be attributed to a State only if that State “had effective control of the military or paramilitary operations in the course of which the alleged violations were committed”.[19] Hence, attribution would require, not only some sort of indirect control by support, supply, training, etc., but also effective control of the particular tactical operation in the course of which the alleged violation (i.e. the shooting down) occurred. The only state in question would be the Russian Federation, and it remains to be seen, but is rather doubtful, whether evidence to that end can be produced.

2.3. Precautionary measures

Let us not forget that an armed conflict[20] had been going on in Eastern Ukraine for some time at the time in question, a fact well-known to the general public and all those concerned. Hence we may ask whether the state on whose territory the conflict was ongoing should have taken precautionary measures, and whether any other state (such as the Home State of an airline known to operate flights in the area concerned) should have done so.

2.3.1. Ukraine

Even if the Territorial State cannot be held responsible for activities of separatist forces over which it has no control, it may nevertheless bear an obligation to protect civilians from the dangers of such activities.[21] In particular, Art. 9 of the Chicago Convention provides that “[e]ach contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory (…)”. The trouble here is that Art. 9 reads “may”, not “shall”, and thus puts any such airspace restriction or closure prima facie at the discretion of the state concerned. Moreover, “military necessity” appears alongside “public safety”, hence considerations of national security appear at least as prominent as those of public safety. Nevertheless, one might ask just what “public safety” means: If restricted to the “public” of the Territorial State as meaning its own citizens, little can be gained for foreigners crossing the airspace of the Territorial State. If, however, “public” is to be understood in a sense similar to Art. 1 of the European Convention on Human Rights as “everyone under the jurisdiction” of the Territorial State, it would certainly include foreigners crossing the airspace, as those, too, would be under the (even territorial) jurisdiction of the Territorial State. It is contended here that nationality does not matter for the purposes of protecting civilians in times of armed conflict,[22] and the latter interpretation of “public safety” is therefore the appropriate one. Still, the question remains whether it is possible to demonstrate an obligation (or merely an option to that end, to be exercised – or not – at the State’s discretion) to take precautionary measures.

In particular, one could argue a mandatory limit, or focus, for any such discretion from the provisions of Annex 17 on security. Provision 2.1.1. of Annex 17 reads “[e]ach Contracting State shall have as its primary objective the safety of passengers, crew, ground personnel and the general public in all matters related to safeguarding against acts of unlawful interference with civil aviation.” Even if a piece of secondary legislation, adopted under Art. 37 of the Convention and only “for convenience” designated as an Annex[23] cannot change a “may” into a “shall” in primary law, i.e. Art. 9 of the Chicago Convention proper, it is contended here that it can at least limit, or rather focus, the discretion given by that provision, until a more satisfactory provision has been included in the Convention. Art 3bis on the prohibition of the use of force against civil aircraft was inserted after the tragedy of KE 007 in 1983; perhaps the tragedy of MH 17 may trigger a revision of Art. 9 and the traditional understanding given hitherto to this provision.[24] Until then, Annex 17 indicates the course to be steered.

Had Ukraine not done anything at all, there might be a case of failure to fulfil an international obligation by failure to act. However, Ukraine had in fact restricted flight in Ukrainian airspace at the time in question: The Dutch preliminary investigation report lists two NOTAMs[25] issued by the Ukrainian aviation authorities, temporarily reserving or restricting (and under the prevailing conditions effectively closing) airspace in Eastern Ukraine up to FL 260 (equals 26.000 ft) and FL 320 (equals 32,000 ft) respectively.[26] MH 17 – like the other aircraft in the area at the time – was cruising above those limits and thus flying in unrestricted airspace. Inaction of a Territorial State is one thing, merely inappropriate or insufficient action, in hindsight, is another thing. In order to show a violation of an obligation to protect public safety by failure to act, mere inaction might suffice; in order to show such a violation by inappropriate or insufficient action one would have to produce evidence that Ukraine knew or should have known about a particular threat at a particular place and time which might have demanded more robust action. This usually requires access to classified intelligence information which is not normally available to the general public and moreover is still subject to interpretation and evaluation. It seems doubtful whether it is possible to present proper evidence for negligence or other fault in the Ukrainian risk assessment, which could be taken to court in order to present a case.

2.3.2. The state of the operator(s)

Art. 9 of the Chicago Convention focuses on the State overflown (arg. “restrict … flying over certain areas of its territory”); however, Annex 17 calls for the safety of passengers, crew and the general public as the paramount objective of each (!) Contracting State, which certainly includes the State of airlines and other operators of aircraft. We have seen that at the time in question (July 2014) a number of major airlines regularly operated over Eastern Ukraine; however, the fact that none of the major US or UK airlines were among them might be of some significance and might indicate that some states were more cautious in their risk assessment than others, or had access to more accurate information. In any case, following the tragedy of flight MH 17 this writer in his capacity as a pilot has, in the context of routine flight preparation, observed an increased awareness of ICAO, as well as EASA (the European Aviation Safety Agency of the European Union), issuing notices and safety information bulletins (SIBs) to national aviation authorities which in turn result in NOTAMs or advisory circulars being issued by national aviation authorities, calling upon operators to take these SIBs into account as risk assessments for flights over or into certain areas are conducted.[27]

2.4. Law of armed conflict

It has already been mentioned that the tragic events around flight MH 17 occurred during an ongoing armed conflict in Eastern Ukraine. Ukraine has signed and ratified the relevant legal instruments governing armed conflict, i.e. the 1949 Geneva Conventions (GC) and the two 1977 Additional Protocols (AP) on international and non-international armed conflicts respectively. This is not the place to discuss in detail the legal regime of armed conflict,[28] nor the exact nature of the armed conflict in Eastern Ukraine at the time in question. Suffice it to state here that the conflict did at least come under the category of a non-international armed conflict as defined by Art. 1 AP II 1977. A non-international armed conflict is an armed conflict between armed forces and other organised groups, fighting under a responsible command, exercising such control over a part of territory as to be able to carry out sustained and concerted military operations, organised in a manner allowing the law on armed conflict to be observed. We need not decide whether there was enough involvement of another state to transform the armed conflict into a “transnational” or international one, since the paramount principle of protection of civilians applies in international and non-international armed conflict alike.[29] This basic principle has been confirmed several times by the UN Security Council,[30] i.a. in its famous resolution on the “responsibility to protect (R2P)”.[31] Its key message is that parties to armed conflict are responsible for the protection of civilians, and attacks on protected civilians amount to war crimes. As far as State responsibility is concerned, considerations similar to those discussed above in the context of precautionary measures apply. Moreover, in the context of the law of armed conflict and unlike under the air law regime of the Chicago Convention, organised non-state actors are addressed directly as well.

2.5. Individual responsibility

This leaves one last point to consider, i.e. individual and command responsibility of those individuals who shot down flight MH 17, including their commanders, who either ordered or did not prevent the launch of a missile against a civil aircraft.

2.5.1. Air law

Under the 1971 Montreal Convention on the suppression of unlawful acts against the safety of civil aviation,[32] any person commits an offence if (s)he unlawfully and intentionally destroys an aircraft in service, or causes damage to such an aircraft which renders it incapable of flight, or which is likely to endanger its safety in flight.[33] All States Parties to the 1971 Montreal Convention (including Malaysia, The Netherlands, the Russian Federation and Ukraine) are bound to make such action a criminal offence punishable by severe penalties. Assuming that this provision has been implemented in national criminal law the individuals responsible for the shooting down of flight MH 17 may face criminal prosecution by Malaysia (being the State of registry of the aircraft) or any other State having jurisdiction ratione loci or ratione personae,[34] thus including Ukraine and potentially also the Russian Federation.

2.5.2. Law of armed conflict

Consistent with the principle of protection of civilians as discussed above, the Rome Statute of the International Criminal Court includes two provisions making attacks on civilians a war crime in both international and non-international armed conflict[35] and comprehensive rules on the requirements of both individual and command responsibility.[36] The Court may exercise its jurisdiction if an alleged crime was committed on the territory of a Contracting State (or on board a ship or aircraft registered in a Contracting State), or if the person accused of an alleged crime is a national of a Contracting State.[37] So far none of the States actually or potentially involved ratione loci or ratione personae, neither Malaysia nor Ukraine nor the Russian Federation, have ratified the Rome Statute; any prosecution on account of a war crime will thus be a matter of national criminal law only, unless the UN Security Council refers the situation in Eastern Ukraine to the ICC, in which case the Court could exercise its jurisdiction irrespective of ratification or otherwise of the Rome Statute by the States affected. In view of the permanent membership of the Russian Federation in the UN Security Council, which allows the Russian Federation to block any such decision by veto, this is unlikely to happen.

Conclusions

While the tragedy of flight MH 17 was but a small episode in the course of the still- ongoing events around Crimea and Eastern Ukraine, it has nevertheless alerted the aviation and air-law communities to the fact that the use of force against civil aircraft remains a problem to be addressed by lawyers and aircraft operators alike. Under a narrower scope, air law may once more gain an incentive for revising and modernising its rules on maintaining safety and security against man-made threats, focusing on all relevant stakeholders, rather than merely on the territorial States concerned. Under a broader scope, international law and international lawyers have been reminded that the principle of protection of innocent civilians against violence cannot be addressed fully from the perspective of one self-contained sub-discipline or another, but remains a fundamental challenge to international law as a whole.

May those who died aboard flight MH 17 rest in peace.

Abstract: On the basis of the preliminary accident report this paper investigates the loss of flight MH17 in the light of international air law. As far as state responsibility is concerned, the attribution of the shootdown to a particular State Party to the Chicago Convention appears difficult; Ukraine had in fact taken some precautionary measures which in hindsight were insufficient. Operators have already reacted by paying more attention to risks in overflying areas affected by armed conflict, and the loss of flight MH17 has triggered a debate on revising the relevant provisions of the Chicago Convention.

Keywords: Air Law; Malaysia Airlines; MH 17; Chicago Convention; accident investigation; use of force; precautionary measures.

[*] Sigmar Stadlmeier, Director of the Institute of Public International Law, Air Law and International Relations, Johannes Kepler University Linz, Austria, active private pilot and theoretical knowledge instructor for air law, flight school AeronautX.

[1] E.g. R. Abeyratne, Flight MH 17: The Legal and Regulatory Fallout, 39 Air and Space Law 329 (2014); S. Kaiser, Legal Considerations about the Loss of Malaysia Airlines Flight MH 17 in Eastern Ukraine, 40 Air and Space Law 107 (2015).

[2] ICAO code (generally used in flight plans) EHAM, IATA code (generally used on tickets and baggage tags) AMS.

[3] ICAO code WMKK, IATA code KUL.

[4] Universal Time Coordinated, formerly known as GMT, Greenwich Mean Time. Amsterdam is located in the Middle European time zone, which is one hour ahead (and during summer because of Daylight Saving Time two hours ahead) of UTC.

[5] Altimeters use atmospheric pressure to indicate altitude; at cruise altitudes, a standard setting (1013 hectopascals or 29.92 inches of mercury) is used instead of the actual setting (based on pressure at mean sea level or MSL, referred to as “QNH”), to ensure that all aircraft use the same basis for reference and can maintain adequate vertical separation at all times. In order to avoid confusion, altitudes referring to QNH-based settings are given in feet, altitudes referring to standard setting are given as flight levels (FL), omitting the last two digits of the altimeter indication in feet. Hence 33,000 feet become FL 330.

[6] Equals 16:20:03 local time.

[7] www.safetyboard.nl [accessed: 08.09.2015].

[8] Preliminary report, 25.

[9] Preliminary report, 12, Figs. 2 and 14.

[10] https://en.wikipedia.org/wiki/Buk_missile_system [accessed: 15.09.2015].

[11] The missile may have to manoeuver in order to intercept its target.

[12] Such as the photo at http://derstandard.at/2000008236143/MH-17-Abschuss-Blogger-nennt-russische-Beweise-Fotomontage [accessed: 15.09.2015].

[13] http://www.sukhoi.org/eng/planes/military/su25k/lth/ [accessed: 15.09.2015].

[14] ICAO Doc 7300/9.

[15] See Arts. 84 and 85 of the 1944 Chicago Convention.

[16] See Arts. 1 and 2 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts.

[17] Art. 2 of the ILC Draft Articles.

[18] ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, ICJ Rep. 1986.

[19] Ibidem, para. 115.

[20] See infra 3.4.

[21] Spanish Zone of Morocco Claims Case (Great Britain vs Spain), International Arbitration Awards 615, 1925.

[22] This point finds some support in R. Abeyratne, Convention on International Civil Aviation. A Commentary, Springer, New York: 2014, p. 678, on ensuring civilian protection, albeit in the context of Art 89.

[23] Art. 54 Chicago Convention.

[24] The traditional view of Art. 9 is reflected in R. Abeyratne (note 22), who remains entirely silent on most of the issues concerning Art. 9 discussed here.

[25] NOTAM = Notice to Airmen, a standard way of disseminating information relevant to aviation.

[26] NOTAMs A1383/14 and A1492/14. See preliminary report, 13.

[27] For an SIB issued by EASA in regard to Libyan airspace see http://ad.easa.europa.eu/blob/SIB_201423R1_Libyan_Airspace.pdf/SIB_2014-23R1_1; the relevant advisory of the Austrian aviation authority Austro Control can be found at http://www.austrocontrol.at/jart/prj3/austro_control/data/dokumente/qUZQP_BTA_LFA_AOT_003.pdf (source in German).

[28] For a concise overview in English, see e.g. D. Turns, The Law of Armed Conflict, in: M. Evans (ed.), International Law, 3rd ed., Oxford 2010, p. 815; for an overview in German see S. Stadlmeier, Das Kriegs- und Humanitätsrecht, in: A. Reinisch (ed.), Österreichisches Handbuch des Völkerrechts, vol. 1, 5th ed., 2013, p. 663.

[29] Art. 51 AP I; Art. 13 AP II.

[30] SC Res 1265 (1999) and 1296 (2000).

[31] SC Res 1674 (2006).

[32] ICAO Doc 8966.

[33] Art. 1, para. 1 1971 Montreal Convention.

[34] For details on jurisdiction see Art. 5 of the 1971 Montreal Convention.

[35] Art. 8, para. 2 (b) (i) and (ii); Art. 8, para. 2 (c) (i) Rome Statute.

[36] Arts. 25 and 28 Rome Statute.

[37] Art. 12 Rome Statute.