The ongoing crisis in Ukraine, which has seen the Russian invasion and annexation of Crimea, has generated two important legal questions.
The first one relates to whether Russia has violated international law with respect to the territorial integrity and political independence of Ukraine. The second question relates to the legality of the referendum in Crimea whereby it has chosen to become a part of Russia. With regard to the first question, the UN Charter imposes via Article 2(3) the obligation upon nations to settle international disputes by peaceful means. Article 2(4) prohibits members from using force or the threat of force against another state’s territorial integrity and political independence. The use of force is however permitted in a situation where the UN Security Council has authorized such action to maintain or restore international peace and security or where a state exercises its inherent right of self defence as recognized in Article 51.
In addition to violation of the provisions of the UN Charter, it has been argued that Russia is in violation of the 1975 Final Act of the Conference on Security & Cooperation in Europe (Helsinki Accords) which reaffirmed the obligation of its signatories to respect each other’s territorial integrity and borders as inviolable in addition to refraining from the use of threat of use of force. These are commitments that were echoed in the 1994 Memorandum on Security Assurances in connection with Ukraine’s accession to the Treaty on the NPT (the Budapest Memorandum) and the 1997 Treaty of Friendship, Cooperation & Partnership between Ukraine and the Russian Federation. Further, Ukraine says Russia is violating the Black Sea Fleet Agreements and the 1999 agreement between the Cabinet of Ministers on the Use of Airspace of Ukraine and of Airspace Over the Black Sea, which places caps on Russian troop levels in Crimea and mandates prior approval of Ukrainian authorities before making any troop movements.
Russia had no UNSC authorization in the Crimean matter and has relied on the argument of acting on humanitarian impulses to protect minorities abroad. Article 12 of the Ukraine-Russia Friendship Treaty which specifically requires the protection of Russian origin ethnic minorities provides Moscow with some legal cover for its actions. Protection of citizens was a principle utilized by the US to intervene in Panama and Grenada. NATO relied upon the principle of protecting minorities in Kosovo. NATO’s argument against Russian use of the precedent of Kosovo to intervene in Ukraine is that Kosovo was different owing to the many human lives that were lost before NATO intervention.
This argument has been debunked by Putin on the ground that it requires nations to wait for the slaughter of innocents before intervening. To what extent the threat to Russians existed however is a matter of speculation and not law. This is similar to the question of the Russian violation of the Black Sea Fleet agreements which Russia claims to have not broken maintaining that its force deployments adhere to the troop caps. Vis-à-vis the Budapest Memorandum Russia has accused the West of violating Ukraine’s sovereignty by encouraging the coup that ousted President Yanukovych.
Legality of the Crimean Referendum
As for the second question. Ukraine’s stated position, backed by the United States, is that the Russian annexation of Crimea does not conform with the fundamental principles and norms of international law as the referendum violated the domestic laws of Ukraine and was unconstitutional. This argument is flawed on two grounds. Firstly, the Ukrainian president possesses the power under Article 137 part two of the Ukrainian constitution to suspend the legal acts passed by the Crimean government based on their inconsistency with Ukrainian laws. This can be done by asking the Ukrainian Constitutional Court to rule on the law’s constitutionality.
Whilst Crimea’s act of secession was declared unconstitutional, the circumstances leading up to the decision bring into question the validity of a decision where the judiciary was coerced into adopting this course of action. This is happening in an environment wherein serious questions have been raised over the independence of the Ukrainian judiciary.
A greater problem however relates to the legitimacy of the Ukrainian government itself given the Russian position that the government came to power by means of a coup d’état and that the legitimate president of Ukraine has called upon Russia to stabilize Ukraine. This is evident by the statement of Moscow’s permanent ambassador to the UN Vitaly Churkin, “It is clear that the implementation of the right of self-determination in the form of separation from the existing state is an extraordinary measure. In Crimea such a case apparently arose as a result of a legal vacuum, which emerged as a result of unconstitutional, violent coup d’état carried out in Kiev by radical nationalists, as well as direct threats by the latter to impose their order on the whole territory of Ukraine.”
This argument has force since Article 108 of the Ukrainian Constitution specifies that the president may lose office in only 4 situations, resignation, medical incapacity, impeachment or death. Technically speaking the Ukrainian parliament did not remove Yanukovych from office but merely voted to accept Yanukovych’s “voluntary renunciation of duties.” The fact that 328 votes were cast in a 449 member assembly requiring 337 votes for an impeachment settles this issue beyond doubt.
Ultimately, regardless of the West’s assertions on any other point, the fact is that Yanukovych was elected to power via elections declared fair by Western monitors themselves. As Kym Bergman has commented, baying mobs, no matter what their size, present no justification to remove a constitutionally elected president from power. The second problem is that so far, as international law is concerned there is no prohibition on unilateral declarations of independence as made clear by the International Court of Justice in its advisory opinion on Kosovo’s declaration of independence. Putin has quoted American submissions to the ICJ that repeat the same position, “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.”
Wider Geo-Political Ramifications of the Issue
Globally the precedent ascribed to by Moscow of intervention for protection of its Russian brethren can return to haunt it. China for instance which has traditionally harped upon the principle of non-interference, has been quite reticent about the whole matter which is understandable given how this will help relieve some strategic pressure from China.
What is interesting however has been the speculation that China may use this precedent in a future bid on Russian territories. In an era of declining Russian demographic figures and a booming Chinese population, this is no fairy tale. Immense Chinese migration into Eastern Russia coupled with Chinese investments in itself is keeping Russian strategic thinkers up at night. Russian actions however have a deeper layer of ramifications as well, since its ascribing of Nikita Khrushchev’s decision to transfer Crimea to Ukraine in 1954 as an ‘historical injustice’ has the potential to open up a pandora’s box.
Allowing such a precedent to be set hypothetically may very well permit Russia to declare void everything from the 19th century sale of Alaska to the Treaty of Brest Litovsk after World War I to the Belavezha Accords of 1991. It would be imprudent to equate Nazi Germany and Putin Russia by any stretch of imagination, but the principle of historical injustice was used to escape the Versailles Treaty as well.
The weak U.S response also sends a dangerous signal to China whose entire claim to the South China Sea rests on historical grounds and notwithstanding US warnings to not copy the Crimea style actions, it is unlikely to be deterred. Western rhetoric decrying the Crimean referendum relying on the argument that referendums held under foreign military occupations are illegal is not going to find any credible reception in mainland Europe or the Asia Pacific.
As Reza Nasri has noted, post-Second World War, Japanese and German constitutions validated by public referendums occurred under allied military occupation. The same applied to South Korea and the 2004 Afghan and 2005 Iraqi Constitution as well. With international legal principles and norms finding themselves beaten periodically and re-casted in the boiling pot of contemporary geopolitics, the only thing one may can expect for sure is a tumultuous ride up ahead.
This article was originally posted in ISSSP.