In September 2013 the New York Times published an op-ed contribution by Vladimir Putin in which he explained Russia’s refusal to give the Security Council authorisation for an intervention in Syria. Such an intervention, going by his opinion, would have been a breach of international law.
Today, only half a year later, the Russian President himself is widely criticised for his behaviour during the Ukrainian revolution and the subsequent Crimean crisis, and is accused of blatantly violating the law of nations. This article seeks to give an insight in the issues of international law that underlay the situation.
Prohibition of the Threat or Use of Force
Often enough international law is very vague and hard to determine. This is mostly because many of the provisions that make up that body of law are not laid down in writing, but rather are of a customary nature. When it comes to the prohibition of the use of force, however, things are quite clear: States are to refrain from any use of force against another State. Article 2 (4) of the United Nations Charter even goes as far as prohibiting the threat of force, meaning that even the announcement to use force in the future can amount to a breach of law. The Situation seems obvious on that point. Armed forces that do not belong to the Ukrainian army patrol Crimean territory, set up check-points and are ready to attack.
I assume the abovementioned armed forces are members of the Russian army, since the equipment and vehicles they use point in that direction. It has to be noted though, that Russian authorities deny any involvement and the uniforms worn by those armed forces do not indicate an affiliation with the Federation’s army.
Furthermore, the International Court of Justice held in Nicaragua v. United States of America that giving equipment and assistance to insurrectional movement in another state constitutes a breach of international law by itself. This means that Russia cannot elude from all responsibilities simply by indicating the alleged Ukrainian citizenship of the armed personnel.
Keeping my assumption in mind, Russia committed an internationally wrongful act by occupying the Crimean peninsula. Still, even to the very strict prohibition of the use of force international law knows some exceptions and, of course, the United Nations Security Council can authorise military action.
The most well-known circumstance to preclude the wrongfulness of the use of force would be the right to self-defence that has its basis in customary international law as well as in Article 51 of the United Nations Charter. However, in order for a State to act in self-defence it has to be attacked. It is obvious that Ukraine did not carry out any armed attacks against the Russian Federation.
2. Intervention by Invitation
It is possible for a State to waive parts of its sovereignty. It follows then, that governments can legally invite other States’ armed forces on their territory. Rumour has it that former President Yanukovich did exactly that after he was ousted. But only a government that is lawful according to international law can express such a justifying invitation.
Mr Yanukovich was overthrown by a revolutionary movement in breach of the Ukrainian constitution. However, that does not mean he is still the lawful President in the eyes of the international community. International law is in principle ignorant towards the domestic legislation of States (see Article 27 of the Vienna Convention on the Law of Treaties which reflects a general principle of international law) and judges the legality of governments only by its own standards: effective control. From the information that one can gather from the media, the new government seems to be stable, generally accepted by large parts of the population and willing to fulfil its national and international duties. Therefore, by the time Mr Yanukovich allegedly declared the invitation, he was not legally able to do so anymore.
Furthermore, the regional government of Crimea could not invite any armed forces either. The peninsula is only a part of a State and can therefore not act on the international plane. For the international community only the central government in Kiev may serve as a contact.
3. Humanitarian Intervention
The question whether or not humanitarian aspects can justify the use force is subject to controversial debate. In Crimea, Russia argues that the unidentified armed forces serve to protect the Russian-speaking population. It is not clear though, from whom it needs to be protected. Media reports provide no evidence of the assertion that ethnic Russians on Crimea are subject to mistreatment.
Be that as it may, Vladimir Putin himself made it clear with his decisions on Syria that even the worst human rights violations cannot serve as a justification for the infringement of a State’s sovereignty. And even other high-ranking government officials have made similar statements before. For example, with regard to the intervention in Kosovo, the then Foreign Minister of Germany stated “This [the intervention] must not become a precedent.” And in April 2000 the Group of 77 – which, regardless of its name, is made up of 130 Countries – stated in its summit outcome: “We reject the so-called right to humanitarian intervention, which has no legal basis in [...] international law“.
When Putin rejected an intervention in Syria his opinion was backed by the law on the use of force. Now, he is in breach of it. Nevertheless, there is no reason for western States to take the moral high-ground; Kosovo and Libya are just the most prominent examples where western States violated international law.
With the Referendum being held, it has to be considered whether the Crimean people themselves can choose to become part of the Russian Federation or, going further, an independent state. While the law on the use of force is relatively easy to assess, the right of self-determination of peoples remains very vague. Nevertheless, there is no doubt that such a right exists (see Article 1 UN-Charter and Article 1 of both ICCPR and ICESCR). The question is rather what it entails and who is to be the beneficiary.
1. The People
Codified international law does not give a definition of the term “peoples”. State practice, and thus customary law, points in the direction that a people is the sum of all persons living within a certain territory. Any other approach (common language and/or history) would lead to legal uncertainty. Additionally, it seems obvious that not every minority within a State can be granted the right to self-determination interpreted as a right to secession as that would result in an innumerable quantity of conflicts and States.
Using this customary definition, the Russian-speaking majority can only be considered a people together with the ethnic Ukrainians living on Crimea. Taking that into account there is generally no harm in a referendum by a group of persons on subjects that specifically affect said group. The Ukrainian constitution acknowledges this rationale and thus, in its Article 138, grants the citizens on the Crimean peninsula the right to conduct a referendum on topics of regional impact.
2. Scope of Self-Determination
Still, this does not give any guidance on the substance of the right to self-determination. Since the regional government of Crimea plans to secede from Ukraine and become part of the Russian Federation, the referendum has an impact on the territorial integrity of Ukraine as a whole which makes it necessary to consider the will of all Ukrainian citizens. Decisions that affect the nation’s very basis can only be made by a central government in Kiev or by a nation-wide referendum. Seen from that angle, the ethnic Russians on Crimea merely constitute a minority within the territory of a State.
Taking into account the travaux préparatoires of the ICCPR and ICESCR it becomes clear that States, by granting a right to self-determination did not automatically imply a right to secession. The stance that territorial integrity prevails over the will to secede was also taken in various United Nations resolutions. For example, the famous 1970 General Assembly Resolution “Declaration on Principles of International Law Concerning Friendly Relations” noted: “Nothing in the foregoing paragraphs [concerning the right to self-determination] 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.”
It is rather the case that the right to self-determination aims to find a balance with the territorial integrity of a state than making it possible to secede.
It is only in circumstances where a minority is widely and systematically deprived of its minority rights, such as enjoying their own culture, professing and practicing its own religion, or using its own language (see Article 27 ICCPR) that it can lawfully break away from a country. It might as well be for this reason that the new Ukrainian government eventually denied signing a bill into law that would deprive the Russian tongue from its status as a second official language.
Keeping in mind ethnic Russians on Crimea do not suffer any form of bodily harm, are granted a right to use their mother tongue and that Crimea already holds status as an autonomous region within Ukraine, one has to conclude that a referendum for secession does not only violate the Ukrainian constitution but is also unlawful under public international law.
In addition, the legality of the referendum becomes even more doubtful, of course, with the regional government and armed forces putting pressure on the situation. The narrow time frame set for the referendum does not allow for a comprehensive debate on the matter and thus does not amount to democratic standards.
President Putin’s analysis of law which he gave in the New York Times was well-founded and yet, did not keep him from breaching the law of nations half a year later. Nonetheless, western States should refrain from expressing their criticism too harshly as they were the ones that created the precedent that the Russian Federation is now cantingly relying on.
As for the situation of the Crimean people, it should learn to embrace the Ukrainian citizenship regardless of ethnicity because it does not have a right to secede from Ukraine and be annexed by Russia. Whether this awareness can change the political intentions of the parties is, of course, another story.
Martin Schäfer is a Newswire Guest Writer.