May 21, 2014

The Incorporation of Crimea into Russia: Legal Perspective

Russia is advancing political and legal justifications which do not stand criticism or are simply very difficult to understand.

The events in Crimea unfolded very rapidly. The peninsula was incorporated into Russia in less than a month from the start of pro-Russian rallies in Sevastopol and other places. Already on 23 February, the day after the departure of Viktor Yanukovych, Russians chanted in Sevastopol and Kerch that Crimea is Russia and wanted to replace Ukrainian flags with Russian ones. Four days later, the Supreme Council of Crimea decided to hold a referendum on the status of Crimea. The referendum was set for 25 May, but later was brought forward to 30 March and then to 16 March.
Despite international and Ukrainian criticism, the referendum was held and reportedly about 96 percent of voters were in favour of uniting with Russia. The next day, the Supreme Council of Crimea declared independence from Ukraine and requested accession to Russia. On 18 March, the leaders of Crimea and Sevastopol flew to Moscow and singed the treaty on the admission of the Republic of Crimea to Russia. Overnight, the Constitutional Court of Russia produced a 14-page judgment confirming that the treaty conforms to the Russian Constitution. And then, on 21 March, the Federation Council ratified the treaty and President Putin signed the ratification instrument, effectively finalising the incorporation of Crimea into Russia.
The international community has overwhelmingly rejected the secession of Crimea from Ukraine and its incorporation into Russia as a violation of international and Ukrainian law. Russia claims that everything happened according to international law. After signing the treaty with Crimean leaders on 18 March, President Putin addressed State Duma, Federation Council, regional leaders and civil society representatives in the Kremlin to justify the incorporation of Crime. Leaving aside the emotional arguments referring to shared history, national pride and military glory, let us concentrate on legal arguments. Russia’s legal justification is based on superficial and opportunistic interpretation of international law and contradicts with its previous positions. Unsurprisingly, Russia builds its position on the right of self-determination and refers to Kosovo as a supportive precedent.

Self-Determination

The people who seek independence turn to the right of self-determination which was made famous by President Woodrow Wilson in 1918 and enshrined in the United Nations Charter in 1945. This right has been hailed for long time as a fundamental imperative in international law, but at the same time, there has rarely been consensus about its meaning, scope and relation to other international norms, e.g. territorial integrity. A useful starting point for understanding self-determination is the Friendly Relations Declaration adopted by the United Nations General Assembly (not a legally binding, but still an authoritative document). Self-determination means that all peoples have the right to determine freely, without external interference, their political status and to pursue their economic, social and cultural development.
In his speech, President Putin argued that at the referendum the residents of Crimea, for the first time in history, were able to peacefully express their free will regarding their own future and emphasised that when declaring independence, the Supreme Council of Crimea also referred to the United Nations Charter, which speaks of self-determination. Although there is some merit in his speech, e.g. referendum is a usual way to determine the will of the people, the right of self-determination has conditions and most certainly does not represent an absolute entitlement, permitting the people to unilaterally secede from the “parent State” at any time and without paying attention to the interest of the parent State.
Secession is neither a right nor necessarily a breach under international law. It is treated as a fact, i.e. secession is successful or fails. The success depends of political recognition by States — if the seceding State gains enough international recognition, it gains gradually legitimacy and finally statehood. In practice, secession is generally disfavoured, e.g. Turkish Federated State of Cyprus (Cyprus), Nagorno-Karabakh (Azerbaijan), Transnistria (Moldova), Abkhazia and South Ossetia (Georgia), Somaliland (Somalia), Republika Srpska (Bosnia and Herzegovina), Tamil Elam (Sri Lanka), Chechnya (Russia). Secession may occasionally receive less disfavoured reaction from the international community, e.g. Kosovo, but this does not mean that secession has become a right. Secession by agreement is a different matter (true, the agreement may well be a forced or inevitable course of events), e.g. South-Sudan.
Traditionally, the right of self-determination has been associated with colonial domination or foreign occupation. Outside that context, self-determination means foremost that the people have the right to meaningful political participation as well as to pursuit of economic, social and cultural development within the existing State. Such internal self-determination is therefore closely related to the protection of minority rights and favours solutions where a certain level of autonomy is given to the minority. If these rights are protected in practice (one may certainly discuss the necessary degree of autonomy), there is no reason and legal justification for external self-determination in the form of secession. This approach was adopted also by the Canadian Supreme Court in its advisory opinion regarding the secession of Quebec. Crimea already had an autonomous status within Ukraine. In fact, the Autonomous Republic of Crime was created in 1996 in order to calm down separatist moods among Russian. They were given substantial linguistic and other privileges, including own parliament and government, and the calls for separation eventually disappeared.
President Putin quotes the International Court of Justice (ICJ) who concluded in the Kosovo advisory opinion that “General international law contains no prohibition on declarations of independence”. Well, that is normally true. The declaration of independence as a document (also preceding referendum) does not violate international law or does not have effect by itself. The ICJ took a simple approach and followed an old principle, established by its predecessor, that what is not forbidden under international law is therefore permitted. However, declaring independence (secessionist activity) may be criminal under domestic law regardless of whether the declaration was someway given effect or not. By the way, the ICJ did not say anything useful about self-determination or more specifically whether Kosovo had the right to secede from Serbia and whether it is a State under international law.
Nevertheless, the ICJ has pointed out that unilateral declarations of independence can be illegal due to the “fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)”, e.g. use of force. Although the principle of territorial integrity under international law does not bind, legally speaking, internal secessionist movements, it certainly does apply in the relations between States. Surely, a State may sympathise with a secessionist movement in another State, but this does not give the former the right to intervene in the territory of the latter, either directly or indirectly (through a third party, including private actors). This position is reinforced by the principles of sovereign equality and non-intervention. It was emphasised equally by the international fact-finding commission that was investigating the military intervention by Russia in South Ossetia and Abkhazia in Georgia in 2008.
It is probably safe to conclude that the referendum and declaration of independence in Crimea would have been impossible without the support from Russian forces. Yes, Russia insists that the unmarked, but armed and uniformed units operating in Crimea were not Russian troops, but spontaneously organised “self-defence forces”. However, these claims do not sound plausible. Russian troops (or at least Russian controlled units) locked Ukrainian forces in their bases and controlled public infrastructure. This made it possible to hold the referendum and raises the question whether the people expressed their will “without external interference” as emphasised in the Friendly Relations Declaration. Because the use of force to support the secessionist activities was illegal, the declaration of independence in Crimea was logically also illegal.
Some argue that a State may assist the people who are exercising self-determination if the territorial States does not agree with potential secession. They support their position with the reference to the Friendly Relations Declaration which provides that “every State has the duty to respect this right in accordance with the provisions of the [United Nations] Charter”. There has never been consensus on what exactly this provision means, but it certainly does not authorise other States to intervene at their discretion. Otherwise it would open the system for abuses, i.e. States disguising their political motivated interventions with supposedly altruistic intentions. If the territorial State oppresses it`s own people and is forcefully preventing internal self-determination, they may seek protection (possibly defensive military assistance) from the international community. Such protection is preferably authorised by the Security Council and provided by a multinational coalition. Although some suggest that even unilateral defensive military assistance is permissible, this is not wise due to the opportunity of abuse.
In September 2013, when President Putin did not want the United States, the United Kingdom and other States to intervene in Syrian crisis, he stressed that “We believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not.” But then, half a year later, Russia intervened in Crimea, although the seriousness of the situation on the ground was not comparable — Russia resisted collective action in a serious armed conflict, but intervened unilaterally in a situation which perhaps amounted to a riot.

Territorial Integrity

External self-determination conflicts inevitably with territorial integrity. If the people are allowed to secede, it means that the parent State loses some of its territory to the seceding State — a prospect not liked to any State. This is one reason why outside the context of colonial domination or foreign occupation modern international law favours internal self-determination that does not threaten territorial integrity. At most, it leads to autonomous regions or federal system.
The Friendly Relations Declaration contains a clause emphasising that the provisions on self-determinations many not be construed as “authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described [in the declaration] and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. This confirms the position discussed above that if the minority has the right to meaningful political participation within the existing State, self-determination should not be used to split such a State. International law values territorial integrity as one important pillar of international stability, peace and security.
President Putin cites the Kosovo case as a precedent that strengthens Russia’s argument in support of Crimea’s right to secede from Ukraine. But he seems to have forgotten what Russia thought about the Kosovo case in 2009, explaining their position to the ICJ. “The Russian Federation is of the view that the primary purpose of the “safeguard clause” [in the Friendly Relations Declaration] is to serve as a guarantee of territorial integrity of States. It is also true that the clause may be construed as authorizing secession under certain conditions. However, those conditions should be limited to truly extreme circumstances, such as an outright armed attack by the parent State, threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State.” So, what happed to this conventional approach? Russia simply abandoned its earlier position and principles because it was politically convenient or never really believed in them?

Crimea and Kosovo

Russia and Russians in Crimea have repeatedly drawn parallels between Crimea and Kosovo. Also President Putin mentioned Kosovo in his speech: “Moreover, the Crimean authorities referred to the well-known Kosovo precedent — a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities.”
Is Kosovo a precedent? The Western States tried to argue that Kosovo is a special case and does not count as a precedent. But this is a fragile and dangerous argument, both politically and legally. What makes the Kosovo case so special that it is not usable as a guiding example vis-à-vis other people? What is the message to Kurds, Tibetans and Western Saharans? That you are not special enough, you are ordinary and do not deserve self-determination? Let us say that Kosovo is not a problem-free case, including the NATO bombing campaign in spring 1999.
Hence it is not a surprise that Russia refers to Kosovo as a justification. However, Crimea and Kosovo are not comparable for several important reasons. Before discussing the differences it is fair to say that there are also some similarities, e.g. Kosovo was an autonomous region like Crime and in both regions, the a majority of people belonged to an ethnic minority. But now let us look at three essential differences.
First, Kosovo had been under the international administration when declaring independence. The United Nations Interim Administration Mission in Kosovo was created by the Security Council (14 votes in favour, including Russia, only China abstaining). The adopted resolution reaffirmed the commitment to the sovereignty and territorial integrity of Yugoslavia, but at the same time called for substantial autonomy and meaningful self-administration for Kosovo. The international community continued to recognise Serbia’s sovereignty over Kosovo and hoped that a political solution is found to determine the final status of Kosovo.
Crimea was under the unilateral and illegal control of Russia when the referendum was held and independence declared. This resulted in Crimea being incorporated into the occupying State. There were no attempts (or at least no meaningful and good faith efforts) to settle the concerns and differences with Ukraine. It was a divorce at gunpoint.
Second, Kosovo declared independence almost nine years after it was placed under the United Nations administration and numerous attempts to negotiate an acceptable solution between the parties had failed. As was discussed above, in Crimea, the whole process of self-determination and secession took to a mere month.
Third, Serbia started to forcefully dismantle the autonomy of Kosovo in 1989. Almost a decade of oppressive measures led to the Kosovo War that lasted from February 1998 until June 1999 (ended with the NATO military intervention). The Security Council determined several times that the situation in Kosovo constituted a threat to international peace and security. The International Criminal Tribunal for the former Yugoslavia and numerous other institutions, including the Security Council, explicitly recognised occurrences of war crimes, crimes against humanity, ethnic cleansing and massive human rights violations in Kosovo. Kosovo was driven, by the events of 1990s and 2000s, to a point where the meaningful exercise of internal self-determination within was rendered very difficult, if not impossible.
The situation in Crimea was not comparable — no impartially verified allegations of grave violations of human rights and fundamental freedom. Similarly, it is difficult to agree that internal self-determination in Crimea was threatened or Ukraine central government was dismantling Crimea’s autonomy. Moreover, if there were legitimate concerns in Crimea, the interim central government was not even given a chance to address these concerns because the process of secession started in days after it was sworn in. Nevertheless, Russia believed that the situation was dangerous and necessitated rapid reaction. For example, when the Federation Council authorised the president to use armed force in Crimea, they mentioned that there was a real threat of bloodshed in Eastern and Southern Ukraine and a humanitarian catastrophe throughout the country. President Putin noted in his speech that the self-determination in Crimea was exercised in a “peaceful” manner and that it was not even necessary to resort to the authorisation from the Federation Council (again the claim that Russia had not armed forces in Crimea). He even thanked the Ukrainian armed forces for not putting up a fight, therefore avoiding violence and causalities.

Conclusion

The incorporation of Crimea into Russia has disturbed the established political, security and legal order. Russia is advancing political and legal justifications which do not stand criticism or are simply very difficult to understand. President Putin claimed that “We have always respected the territorial integrity of the Ukrainian state, incidentally, unlike those who sacrificed Ukraine’s unity for their political ambitions”. Russia has illegally orchestrated a secession of Crimea and apparently renounced their previous conventional positions. Before the ICJ, Russia stated that “outside the colonial context, international law allows for secession of a part of a State against the latter’s will only as a matter of self-determination of peoples, and only in extreme circumstances, when the people concerned is continuously subjected to most severe forms of oppression that endangers the very existence of the people”. Indeed, did the situation reflect these conditions and therefore necessitated external self-determination? The answer is negative. Lastly, if for the sake of argument one agrees that the secession was legal, how can Russia continue to refuse to recognize the independence of Kosovo and block its membership to the United Nations?

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