magnify
Home Archive for category "States and Statehood"

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

Published on April 16, 2014        Author: 

Referendum in Crimea

Yesterday, on 15 April 2014, Ukrainian interim president Turtschinov considered to hold, simultaneously with the presidential elections, a referendum on regional competences in Ukraine. On 8 April 2014, separatists in the Ukrainian region of Donetsk proclaimed that they would hold a referendum on the independence of that Eastern region of Ukraine. Some days before, representatives of the Crimean Tatars announced that they sought to hold a referendum on their political autonomy within Crimea.

On 16 March 2014, the population of Crimea had overwhelmingly voted in favour of joining the Russian Federation. The population was asked to choose between the following alternative: “1) Are you in favour of Crimea joining the Russian Federation as a subject of the Russian Federation?” or “2) Are you in favour of re-establishing the 1992 constitution of the Republic of Crimea and Crimea’s status as a part of Ukraine?” The maintenance of the territorial and status quo was not given as an option in that referendum, and no international observers were admitted. With a voter turnout of 83.1 %, 93 % answered with a “Yes” to the second question, and thus pronounced themselves in favour of joining the Russian Federation.

The spokespersons of the Tatars now declare that their ethnic group had boycotted the referendum of 16 March, and assert that the majority of Tatars would have preferred to stay within Ukraine. Tatars currently form about 10 percent of the Crimean population. Probably hundreds of thousands of Tatars were killed, starved, and were deported from the 1920s to the 1940s under Soviet policy. The new government of Crimea rejects the idea of a politically autonomous territory for the Crimean Tatars but holds that the Tatars can only claim “cultural autonomy”.

The 16 March referendum, and announced further territorial referendums in Ukraine, place in the limelight the problématique of this legal institution. Are not the outcomes of referendums in ethnically mixed units most often ethnically pre-determined? And does not the resort to a referendum lead to ever smaller subgroups which again seek to detach themselves from a larger one? After all, the Ukrainian people, including the Crimean population, had some 20 years ago voted in favour of independence from the Soviet Union. (See on the 1991 referendum in Ukraine Anne Peters, Das Gebietsreferendum im Völkerrecht (Baden-Baden: Nomos 1995), 184-88; specifically on previous Crimean referendums ibid., 190-91, 211-15). That Ukrainian referendum of 1 December 1991 had been at the time widely appreciated as having rung the death knell for the dissolution of the USSR one week later, when the Agreement Establishing the Commonwealth of Independent States of Minsk of 8 December 1991 declared that the Soviet Union had ceased to exist. But even before that date, and later, Crimean politicians had several times (in 1991, 1992, 1994, and so on) planned and sometimes held “polls” on a special status of Crimea.

This post postulates that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua for any territorial re-apportionment. However, the 16 March referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status. Read the rest of this entry…

Print Friendly
 

Crimea and (the Lack of) Continuity in Russian Approaches to International Law

Published on March 28, 2014        Author: 

On 27 March 2014, the UN General Assembly adopted a resolution calling upon states not to recognize changes in status quo of Crimea region. 100 states voted in favor, 11 were against and 58 abstained. In terms of international law, Ukraine’s continued sovereignty over Crimea is supported by the absolute majority of states, even though Crimea is now de facto annexed by the Russian Federation. In this post I want to make two points: one concerning the Russian scholarship on international law and the second on the history of Russia’s treaty practice regarding Crimea.

The first point is that the annexation of Crimea by the Russian Federation goes against pretty much everything that has been written in Russia over the last twenty years (plus during the Soviet period) on the legality of the use of military force and the right or peoples to self-determination in international law in non-colonial contexts. Suffice it to say that the Concept of the Foreign Policy of the Russian Federation, approved by President Putin on 12 February 2013, emphatically criticizes and condemns the use of military force outside the framework of the UN Charter.

My comment focuses on the Russian scholarship of international law because its most prominent representatives have until now argued that, in international law, the principle of state sovereignty clearly trumps the right of peoples to self-determination. (See e.g. I.I. Lukashuk, Mezhdunarodnoe pravo. Obshaya chast’ (2001), 280, 300; V.I. Kuznetsov, B.R. Tuzmukhamedov (eds) Mezhdunarodnoe pravo, 2nd ed. (2007), 215; G.G. Shinkaretskaya, ‘Polozhenie fakticheski sushestvuyushikh rezhimov (nepriznannykh gosudarstv)’, in: A.G. Lisitsyn-Svetlanov (ed.) Novye vyzovy i mezhdunarodnoe pravo (2010), 168-172; A.Ya. Kapustin (ed.) Mezhdunarodnoe pravo (2008), 105; A.A. Kovalev, S.v. Chernichenko (eds) Mezhdunarodnoe pravo, 3rd ed. (2008), 58.)

Read the rest of this entry…

Print Friendly
 
Tags:

Crimea, Kosovo, Hobgoblins and Hypocrisy

Published on March 20, 2014        Author: 

One of the more remarkable aspects of the whole unfortunate Ukraine episode is the rampant hypocrisy on part of all of the major players involved in the dispute. Those same Western states that unlawfully invaded Iraq, and supported Kosovo’s secession from Serbia while endlessly repeating that Kosovo was somehow a really super-special sui generis case, are now pontificating about the sanctity of the UN Charter and territorial integrity.  On the other hand, that same Russia that fought two bloody wars in the 1990s to keep Chechnya within its fold, that same Russia that to this day refuses to accept the independence of Kosovo, has now rediscovered a principle of self-determination that apparently allows for the casual dismemberment of existing states.

I am not saying that no distinctions can be drawn between the various situations I just mentioned. In particular, I agree with many of the arguments in the recent posts by Christian Marxsen and Jure Vidmar about the differences between Crimea and Kosovo, the critical one being that Crimea’s secession is the direct result of Russia’s unlawful military intervention against Ukraine, whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244, which authorized the presence of international forces in Kosovo while disabling Serbia from taking military action to suppress Kosovo’s secession. I would also note that it is more difficult to levy charges of hypocrisy against international lawyers, rather than states or politicians – and I hope that speaks well of our profession. Most international lawyers after all considered the 1999 intervention against Serbia or the 2003 invasion of Iraq to have been unlawful, and most justifiably feel the same way with regard to Russia’s intervention in Ukraine.

But even if Kosovo and Crimea are legally distinguishable, they are still close enough. The West’s position on Crimea is undeniably undermined by their previous stance regarding Kosovo, and they can only blame themselves for that. Just consider President Putin’s speech justifying the annexation of Crimea by reference to Kosovo and the ICJ’s advisory opinion:

Read the rest of this entry…

Print Friendly
 
Tags:

Crimea’s Referendum and Secession: Why it Resembles Northern Cyprus More than Kosovo

Published on March 20, 2014        Author: 

On 16 March 2014, Crimea held a referendum on its future legal status. Reportedly, the choice to join Russia was supported by an overwhelming 95.5 per cent of all votes cast, with the turnout of 83 per cent. A day earlier, Russia vetoed a draft Security Council resolution which sought to declare the referendum as ‘having no legal validity’ and urge the international community not to recognise its results. The draft resolution was otherwise supported by 13 members of the Security Council, with China abstaining. On 17 March 2014, the Crimean parliament declared independence and applied to join Russia.  This contribution explains that while the referendum itself was not illegal in international law, the shift of territorial sovereignty would be illegal. Moreover, in the legal circumstances underlying the situation in Crimea, even the declaration of independence violated international law. As a result, the obligation to withhold recognition of the effective situation is applicable under general international law. No Chapter VII Resolution is required. This is not because international law would see territorial integrity of states as an absolute norm, but because the effective situation was created by Russia’s use or threat of force. Although parallels have been drawn to Kosovo (see the discussion in Christian Marxsen’s post) and even Scotland, in terms of international law Northern Cyprus would be a more accurate comparison.

Secession and neutrality of international law

Groups seeking independence usually present self-determination as an absolute entitlement. Conversely, states countering secession usually present territorial integrity as an absolute entitlement of states. Neither camp is right. As follows from the General Assembly’s Declaration on Principles of International Law (GA Res 2625), the Quebec case (Supreme Court of Canada) and partly also from the Kosovo Advisory Opinion (ICJ), international law is actually neutral on the question of unilateral secession. This means that unilateral secession is neither prohibited nor an entitlement. Furthermore, for the purposes of international law, it does not matter whether or not secession is explicitly prohibited under domestic law. As noted by the Supreme Court of Canada in the Quebec case, an entity may declare independence extra-constitutionally and yet nevertheless become independent if other states are willing to recognise it (the Quebec case, para 155). This further confirms that unilateral secession unto itself does not trigger an obligation to withhold recognition. [I explain this further here].Yet states are very rarely willing to grant recognition on a widespread basis to entities seeking independence unilaterally. By holding a referendum and declaring independence, such an entity in most circumstances does something that remains legally ineffective, yet not internationally wrongful. The burden of changing the territorial status quo lies on the secession-seeking entity and this exercise is very rarely successful if the parent state does not agree. However, a declaration of independence may be given effectiveness through foreign military assistance. This is where neutrality of international law ends. International law is neutral only with respect to a declaration’s unilateral character, but not in general, where territorial illegality is attached to the situation.

When are declarations of independence illegal?

Territorial illegality arises under a serious breach of certain fundamental norms of international law, in particular jus cogens. Read the rest of this entry…

Print Friendly
 
Tags:

Crimea’s Declaration of Independence

Published on March 18, 2014        Author: 

The referendum on Crimea’s secession from Ukraine and on the subsequently planned accession to the Russian Federation has produced the expected results. An overwhelming majority has voted against Crimea remaining part of the state of Ukraine. Already one day after the referendum, the Supreme National Council of Crimea has declared the independence of Crimea and requested other states to recognize it as an independent sovereign state. And today Russia and Crimea signed an agreement on Crimea’s accession to the Russian Federation. Crimean and Russian authorities seek to justify their actions under international law, especially by reference to the International Court of Justice’s advisory opinion on Kosovo. In a statement of March 11, 2014, the Supreme Council of Crimea proclaimed that it is acting “with regard to the charter of the United Nations and a whole range of other international documents and taking into consideration the confirmation of the status of Kosovo by the United Nations International Court of Justice on July, 22, 2010, which says that unilateral declaration of independence by a part of the country doesn’t violate any international norms.” (link to press report) How do these claims hold under international law?

In evaluating the significance of the ICJ’s advisory opinion to Crimea it is important to highlight that the opinion only had a very limited scope. It did not answer the question whether Kosovo had a right to secession under international law, it did not address the question whether there is a general entitlement to secession; nor did it answer the question of the legal consequences of the declaration of independence or whether Kosovo has become an independent state. Rather, the opinion is limited to an analysis of the legality of the declaration itself (I.C.J. Reports 2010, para. 51, 56).

The Kosovo opinion relies on a brief review of norms of international law, which – as the ICJ concludes – do not generally prohibit unilateral declarations of independence. The principle of territorial integrity only applies in the relations between states, but not in regard to internal secessionist movements. However, the ICJ mentions a situation in which unilateral declarations of independence can nevertheless be in violation of international law, namely where 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 (ius cogens)” (ibid. para. 81). The violation of international law then does not stem from the unilateral character of the declaration of independence, but from its reliance on the violation of a peremptory norm of international law.

In regard to Crimea, the declaration of independence would have been impossible without Russian troops backing up the steps towards secession. Only the fact that Ukrainian forces on Crimea have been locked in their posts and that the public infrastructure has been taken over by pro-Russian forces made it possible to hold the referendum on which the declaration of independence is based. It can therefore hardly be argued that the declaration would not rely on the use of force. According to the criteria elaborated in the ICJ’s advisory opinion, if that use of force was illegal, so was the declaration of independence.

A further question is whether Crimea has a substantive right to secession under international law. Crimean authorities refer to the UN Charter and rely on the principle of self-determination (Article 1 (2) UN Charter) which, as they argue, would assign them a right to secession. Such a claim is also not supported by international law. State practice is very reluctant to acknowledge a right to secession, since states fear that their own territorial integrity might be endangered by an empowerment of secessionist groups. Indicative for the traditional position on the right to self-determination is General Assembly Resolution 2625 (1970). After acknowledging the right to self-determination this resolution stresses that such acknowledgment may 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” as long as those states internally respect the right to self-determination of peoples. The right to self-determination requires states to respect minority rights, but does not grant a sub-entity of states the right to freely chose to which state a territory shall belong. Self-determination is usually limited to internal measures, such as the right to be granted a certain status of autonomy within a state. Although one might certainly argue about the necessary degree of autonomy, it is important to highlight that Crimea already had the status of an autonomous republic under Ukraine’s constitution. In principle, the institutional arrangements for implementing the right to self-determination were in place.

The legal situation in regard to the self-determination of Crimea is therefore rather clear. But, as Nico Krisch has pointed out on this blog, the more formal, traditional norms of international law have come under pressure from what he calls liberal interventionism. In regard to self-determination, Western states have created such pressure, for example, when recognizing Kosovo as an independent state immediately after its declaration of independence in 2008. Those who argued for these exemptions referred to the history of internal conflict and the human rights violations that preceded Kosovo’s declaration of independence. A comparable history of conflict does not exist in Crimea, but since the concept of self-determination has been expanded in the past when it seemed opportune, it is not surprising that secessionist movements try to push the limits even more. Since Russia is powerful enough to pursue its interests anyway, it does not need an ultimately convincing legal justification. A justification that is at least not totally absurd, but somehow arguable, is already good enough for making a case in the international political sphere. In expanding the right to self-determination in regard to Kosovo, Western states bear their share of responsibility in enabling such arguments and in undermining international law.

Print Friendly
 
Tags:

Oxford University Press Debate Map on Ukraine

Published on March 14, 2014        Author: 

Over the past couple weeks, there has been a flurry of writing on this blog  (see here, here, here and here) and elsewhere about events in Crimea/Ukraine. Oxford University Press have produced another of their ever so useful Debate Maps on Ukraine.

“The  . . . index maps scholarly commentary on the legal arguments regarding the public international law (and some domestic constitutional law) aspects of the use of force in Ukraine, published in English language legal blogs and newspapers, and free content from OUP’s online services.

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.”

I could not recommend this Debate Map, and the other OUP maps (here, here, here),  more highly. There is so much writing on topical international law issues that it can be difficult to stay abreast of what has been written, particularly over a short space of time. The Debate Map is an excellent way of doing so.

Print Friendly
 
Tags:

Azemi v. Serbia in the European Court of Human Rights: (Dis)continuity of Serbia’s De Jure Jurisdiction over Kosovo

Published on March 13, 2014        Author: 

Following the 2008 Kosovo Declaration of Independence and the change in public powers in Kosovo, Azemi v. Serbia was the first decision in which the ECtHR examined whether Serbia continued to have jurisdiction in Kosovo. The applicant, Ali Azemi, a national of Kosovo, alleged that Serbia had violated his rights under Article 6 (1) of the Convention by failing to enforce a decision rendered by a court in Kosovo in 2002. The applicant argued that Serbia bore responsibility for the enforcement of the Convention rights throughout its territory, including Kosovo.

On November 5, 2013, the ECtHR found that Serbia could not be held responsible under Article 1 of the Convention for the non-enforcement of a decision of a Kosovo court. The Court had previously sustained the presumption of Serbia’s de jure jurisdiction in Kosovo. However, in the Azemi case in examining the period after the Declaration of Independence it departed from that view by way of establishing the presumption of neutrality with regard to Kosovo.

Read the rest of this entry…

Print Friendly
 

Intervention with the Consent of a Deposed (but Legitimate) Government? Playing the Sierra Leone card.

Published on March 6, 2014        Author: 

The most dramatic moment at Monday’s Security Council meeting on Ukraine came when the Russian representative, Vitaly Churkin, produced a letter, purportedly from ousted Ukrainian President Victor Yanukovych, inviting Russian military intervention. This seemed to indicate a shift in Russia’s legal justification for its actions in Ukraine. The resolution adopted by the Russian legislature authorizing the use of force referred to the alleged threat to the personnel stationed at the existing Russian bases in Ukraine, while at the previous Security Council meeting on 1 March, Mr Churkin appealed primarily to a request from government of Crimea. It appears that Russia has now decided to rely much more heavily on Yanukovych’s consent. Not only did Mr Churkin emphasise it at the Security Council; President Putin, in his press conference on Tuesday, laid great stress on it:

“[W]e have a direct appeal from the incumbent and, as I said, legitimate President of Ukraine, Mr Yanukovych, asking us to use the Armed Forces to protect the lives, freedom and health of the citizens of Ukraine.”

This shift, which has already attracted some attention in the international law blogosphere, is an understandable move. For the reasons explained by Daniel Wisehart in his post on Tuesday, both self-defence and the invitation of the Crimean government are patently inadequate as legal justifications for Russia’s use of force. There is no evidence of an armed attack on the Russian bases in the Crimea, nor can it be seriously maintained that the consent of the government of a sub‑national unit within a State can legalise military intervention, especially when the intervention is opposed by the federal government.

In contrast, it is much easier for Russia to use Yanukovych’s consent to muddy the waters. For it has been argued, with at least some plausibility, that the international community has accepted the legality of foreign military intervention in support of a ‘legitimate’ national government, despite the fact that it has lost effective control of the state. The use of force by ECOWAS in Liberia in 1990, and in Sierra Leone in 1997, could be given as examples. In Liberia, the incumbent President, Samuel Doe, dispatched a letter to ECOWAS requesting assistance at a time when his forces controlled only a small part of the capital city, Monrovia. And in Sierra Leone, after being overthrown by a military coup, the democratically elected President Ahmad Tejan Kabbah had already fled the country (just as Yanukovych has done) before he requested ECOWAS assistance to restore him to power. Despite these facts, in both cases military action met with support rather than censure from the international community. Read the rest of this entry…

Print Friendly
Filed under: Government, Use of Force
 
Tags:

OUP Debate Map on “Disputes in the South and East China Seas”

Published on February 7, 2014        Author: 

Readers interested in the territorial and maritime boundary disputes between China and her neighbours in the South and East China Seas will welcome the creation by Oxford University Press of a “Debate Map” on the topic. The  “Debate Map” is a valuable way of keeping track of scholarly commentary, in journals and blogs, on the range of issues related to those territorial and maritime disputes. It is essentially an index which categorises and:

maps scholarly commentary on the international law aspects of the conflicts in and around the South China and East China Seas, including maritime boundary disputes, the question of sovereignty over the Senkaku/Diaoyu islands, China’s recent announcement of an Air Defence Identification Zone, and the Philippines/China UNCLOS arbitration. It brings together primary documents with discussions in English-language legal blogs and a selection of journal articles.

Readers can “[u]se this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.” OUP has also made available a range of online OUP materials on these issues (see the Oxford Public International Law Page).

The current Debate Map is the third such Map created by the Law team at OUP. The first was on The Use of Force Against Syria and was noted by John Louth here. The second on the Prosecution of Heads of States and Other Senior Officials at the ICC was discussed by Merel Alstein here. These debate maps are regularly updated and as Merel explains “aim to provide a quick overview of the relevant legal problems and controversies but also to create an archive of scholarship that can be referred back to  . . .”

Print Friendly
 

Ripples in the East and South China Seas: Aid, ADIZs, Aircraft Carriers, and Arbitration

Published on December 1, 2013        Author: 

0912ChinaSeaTerritory2In the past few weeks throughout November 2013, various incidents have sharply demonstrated China’s foreign policy preferences in relation to disputes with neighbors over the East and South China Seas (pictured above left, credit), as well as its self-perception of its broader hegemonic role in the Asian region.  I recently spoke on regulatory freedom and control under the new ASEAN regional investment treaties at the international investment law panel organized and led by Dr. Stephan Schill of the Max Planck Institute and Professor M. Sornarajah of the National University of Singapore, at the Fourth Biennial Conference of the Asian Society of International Law (AsianSIL) held in New Delhi, India from 14 to 16 November, 2013.  In the same conference, I witnessed firsthand the rare exchange  between China’s Judge Hanqin Xue of the International Court of Justice during the presentation made by my former University of the Philippines colleague Professor H. Harry Roque on the Philippine arbitration claim filed against ChinaIn a detailed reply after Professor Roque’s presentation, Judge Xue noted that there was no other Chinese scholar or delegate in the AsianSIL conference, and said she would thus take the opportunity to analyze the Chinese position on the Philippine arbitration.  She did stress, however, that her remarks were made in her personal capacity, and not in any way reflective of her views as a Member of the Court and certainly not representative of China’s official position on the South China Sea.)

First, Judge Xue observed that the questions in the Philippine claim, taken in their totality, in reality amount to territorial questions that fall well outside the scope of the subject-matter jurisdiction of the UN Convention on the Law of the Sea.  Second, she stressed that around forty states (including China) had not accepted compulsory jurisdiction under the UNCLOS dispute settlement procedure.  Third, she related her experiences as China’s Ambassador to ASEAN during the passage of the Declaration of the Code of Conduct on the South China Sea, where, in her view, the littoral States signing the declaration clearly assumed the obligation to resolve the South China Sea disputes through negotiations and not through compelled arbitration.  Finally, she expressed that China decided not to participate in the UNCLOS arbitration initiated by the Philippines because no country could have “failed to see the design” of the Philippine claim which “mixed up jurisdiction and merits”, and that it tended to complicate the full range of regional maritime issues and inhibit confidence-building measures between the seven States parties to the dispute.  Judge Xue stressed that all parties to the South China Sea dispute would do better to cooperate on issues gradually (such as, first, through rapid response disaster risk reduction in maritime disasters and maritime-related environmental hazards) to build confidence steadily among the States enough to reach multilateral agreement on joint resource management and resource uses over the disputed area.  Even though issued in her personal capacity, the remarks of China’s most senior international judge certainly suggests, at least, that there is some groundswell towards peaceful cooperative actions for resolving maritime disputes in the Asian region.

Subsequent actions taken by the Chinese government in the past week, however, seem to demonstrate some equivocation to the above views.  On November 23, 2013, China announced that it was marking its own “air defense identification zone” (ADIZ) to include airspace over the disputed islands (Senkaku Islands according to Japan, Diaoyu islands according to China) in the East China Sea.  Similar to other ADIZs established by the United States, Canada, Russia, among others, China established its ADIZ by declaration, and not by treaty.  An ADIZ may be established over territorial waters or land, but it may also be declared over high seas or extended into international airspace adjacent to national airspace. (Nicholas Poulantzas, The Right of Hot Pursuit in International Law, Martinus Nijhoff, 2002, at pp. 341-342.)  In the latter instance, foreign aircraft passing through the ADIZ would be required to provide the State administering the ADIZ with advance warning information only if the aircraft’s final destination is the said State. Read the rest of this entry…

Print Friendly