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

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.)

These scholars are now in quite a difficult situation. If one applies the legal criteria that they have supported all along, one must characterize Russia’s annexation of Crimea as illegal. The argument that the US violated international law against Iraq in 2003 is not relevant here. Besides the fact that the US did not annex Iraq, this violation does not in any way affect the sovereign rights of Ukraine vis-à-vis Russia.

In the Russian scholarship on international law there have been a number of discussions as to when exactly the Russian government recognized fully and unconditionally the transfer of all territorial rights to Ukraine regarding Crimea. In a monograph that examines legal aspects of the disintegration of the USSR, Petr P. Kremnev from Moscow State University comes to the conclusion that while one could debate about whether the 1997 Ukrainian-Russian treaty recognized the Ukrainian borders unequivocally, the border treaty of 2003 that was ratified by both Russia and Ukraine in 2004 decided the issue of borders, including Ukraine’s sovereignty over Crimea, with finality. (P.P. Kremnev, Raspad SSSR: mezhdunarodno-pravovye problemy (2005), 68-91.)

It is obvious that notwithstanding its treaty commitments vis-à-vis Ukraine the Russian government now got ‘second thoughts’ regarding Crimea. It will be interesting to see whether and how the Russian scholarship reacts to this U-turn in the state’s practice.

The second point that I want to make here is a historical one. Namely, for scholars interested in the history of international law, there is a certain déjà vu element in the story. In terms of its international legal obligations, Russia already made a U-turn regarding Crimea – in the 19th century. The case has been discussed in the earlier scholarship of international law because it concerned the issue when a state IS allowed to raise the principle of clausula rebus sic stantibus (fundamental change of circumstances; as exception to the rule that promises must be kept) in international treaty law. (W. E. Hall, A Treatise on International Law, 3rd ed. (1890), 353-6; W. Grewe, Epochen der Völkerrechtsgeschichte (1984), 605.)

The facts of the case were the following. In 1856 the Treaty of Paris ended the Crimean War (1853-1856) that imperial Russia lost. The treaty prohibited Russia from having its Black Sea fleet and declared the Black Sea neutral. However, seizing the opportunity when the Franco-German war broke out in 1870, Russia issued a circular declaring itself no longer bound by references to the Black Sea in the Treaty of Paris. Since the other participants of the Treaty of Paris protested, a common conference of the treaty partners was convened in which it was declared that:

“It is an essential principle of the law of nations that no power can liberate itself from the engagements of the treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement.”

However, the English scholar W.E. Hall who commented on this case also noticed a troublesome aspect: while in 1870 Russia formally agreed to the principle that in international treaty law, the principle pacta sunt servanda trumped the principle of clausula rebus sic stantibus, it nevertheless, for reasons of Realpolitik, actually got to keep its navy in the Black Sea. (Hall, ibid., 356.)

Thus, it is now the second time in the history that the Russian government bypasses its own earlier treaty commitments and presents the international community with a fait accompli in Crimea. The step certainly contradicts the rhetorical self-image of the Russian government as expressed in the Concept of the Foreign Policy and other similar documents, essentially claiming that Russia is sort of a ‘guardian’ of international law and its foundational document, the UN Charter. Rather, it seems that Russia’s guiding principle, at least in Crimea, has been: when facts and power relations in international relations change, our legal claims change too. Such an attitude towards the sanctity of international treaties and the principle of pacta sunt servanda cannot but worry other sovereign states in Russia’s immediate neighborhood.

In the region, Russia’s approach seems to be connected to what Dmitri Trenin, the director of the Carnegie Moscow Center has observed: “In the current stage, Russia recognizes all former Soviet republics as separate countries but does not yet perceive all of them as foreign countries.” (D. Trenin, Post-imperium: evraziiskaya istoria (2012), 39.) It is clear that such a perception is a problem from the point of view of international law, in particular the principle of sovereign equality of states as enshrined in the UN Charter.

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10 Responses

  1. Ralph

    Dear Lauri,
    first of all thanks for the interesting survey on Russian writing on international law. This is indeed an area that has definitely received scant to none attention this far. Yet, I do think that you somehow show once again that international law does not have the final, if any, say when it comes to vital interests (remember Henkin). It’s not as if anyone in the Russian Foreign ministry ever said anything like “oh no, we can’t occupy the Crimea because it would contradict our position to self-determination or the prohibition on the use of force). That is something every IL proponent simply has to accept.

  2. Lauri Mälksoo Lauri Mälksoo

    Dear Ralph,

    I agree with you that international legal opinions within Russia (and its contradictions) deserve more attention in the West as well. Scholars in the West have been too comfortable in this sense, presuming that all important international law talk takes place in English language. One consequence is that the Russian discourse of and debates about international law are quite a terra incognita for many experts outside Russia.

    But to your example. Actually, why not – why wouldn’t or shouldn’t international lawyers in Foreign Offices – or even more, independent scholars – tell to their government if a planned activity is illegal? There are examples in the state practice, for instance when Elizabeth Wilmshurst resigned from the British Foreign Office when the legality of the Iraq war was debated.

  3. Andrew

    Dear Lauri.
    In examining the Crimean crisis of late it is interesting the parallels being drawn with Iraq, Kosovo, South Sudan, Rhodesia, North Cyprus, Eritrea, Croatia & Slovenia, Bosnia, the forthcoming Scottish referendum, etc.

    Yet one blatant parallel of illegality we are not witnessing in the mainstream media is the continued belligerent occupation of Hawai’i by the U.S. Government since 1898. In January 1893 an unlawful U.S. backed coup d’etat occurred in Honolulu, and five years later the U.S. purportedly annexed Hawai’i via the 1898 Newlands Resolution. Utilising a mere domestic, municipal U.S. Law the Newlands Resolution has no lawful effect outside the U.S. most especially in acquiring a Sovereign, Independent Country [i.e. the Hawaiian Kingdom].

    Just Google “Three Attempts at Annexation Fail” or visit Hawaiian Kingdom (dot) blog. The 1959 Hawaiian statehood plebiscite was yet another fraud, 63% of eligible voters never even voted, there was no U.N. supervision, no Independence option on the ballot, even the U.S. military and their extended families stationed in Hawai’i were allowed to vote.

    Clearly, the 1893 overthrow of the Hawaiian Kingdom was an Act of treason & sedition against the National Government of the Hawaiian Kingdom, a violation of Hawaiian Kingdom, U.S. Constitutional, and International Laws.
    In order for greater public transparency Lauri it would be greatly appreciated if you would consider writing on the Hawaiian situation at some future time.

    With Thanks. Andrew.

  4. Alexander Merezhko

    Excellent and honest international legal analysis! Congratulations! Unfortunately, what we are witnessing now is the shameful end of the Russian science of International Law, which became nothing but a an instrument of Putin;s propaganda.

  5. Lauri Mälksoo Lauri Mälksoo

    Dear Andrew,

    thank you for your interesting post. I have been aware of the Hawai’i case because my PhD (published at Brill in 2003) “Illegal Annexation and State Continuity” evoked some interest among scholars and activists in Hawai’i who, I have understood, drew parallels between the legal status of the Baltic States and Hawai’i.

    The world history ifs in some ways of course the history of conquests and annexations. However, for me as international lawyer (not for example moral philosopher), the crucial dividing lines in time are 1928 and 1945 when military conquests were prohibited by international law, by the Briand Kellogg Pact and the UN Charter. Before that, I am afraid, conquests may have been immoral but were not automatically illegal. But the world history does not stand still and there will always be ‘new’ claims to self-determination some of which will actually be ‘old’.

    Best wishes,

    Lauri Mälksoo

  6. Andrew

    Hi again Lauri.
    Many thanks for your kind reply. Yes, Dr. Kuhio Vogeler for one, submitted a dissertation titled: “For Your Freedom and Ours? The prolonged occupations of Hawai’i and the Baltic States.”

    The 1893 overthrow of the Hawaiian Kingdom at the time violated the Law of Nations and conventional Treaties. There exists for example a Treaty of Friendship, Commerce & Navigation (1849) between the United States and Hawaiian Kingdom. Of significance is the entry on the Hawaiian Kingdom blog pertaining to this particular Treaty, quote:

    “Neither the United States nor Hawaiian Kingdom gave notice to the other of its intention to terminate this Treaty in accordance with the terms of Article XVI of the 1849 Treaty. Therefore, this Treaty is still in full force and continues to have legal effect.”

    While understanding completely the area you are coming from, a Statue of Limitations (of sorts) when you demarcate 1928 & 1945 as a time reference frame, our modern International legislation for good or ill stem from these legal entanglements in earlier epochs.

    Best wishes in kind. Andrew.

  7. Nick Basil

    Hi, Lauri
    Thank you very much for an interesting analysis. I cannot say that I agree with it completely but it is indeed thought-provoking. When you monograph on Russian approaches to IL is coming up?

  8. Lauri Mälksoo Lauri Mälksoo

    Hi Nick,

    in terms of the monograph, my goal as the author is: in 2015, ideally in about a year.

    Best wishes,

    Lauri

  9. Dr. Benarji Chakka, Associate Professor of Law, National Law University and Judicial Academy, Assam, India

    Dear Lauri

    It is interesting to know that the Russian International Law Scholarship has been very proactive and you did a great job by giving reference to those scholarship. I agree with you view point, as it is called as double standards in international law. It is not only west and North American practice the double standards in international law Russia has also traditionally practicing double standards in International law. It was clear evident in the context of Georgia, and now Crimea. As we all know that Russia was against any kind of military intervention in Syria, when it comes to protection of civilians are concerned. Whereas in Crimea it is violated the basic principles of UN Charter. I think Thomas Frank arguments on who killed Article 2 (4) really justifies now in this context.
    Once again it is good scholarship on Crimea and good wishes

  10. Nikolai Topornin

    Dear Lauri,

    You made a very interesting survey about Russia’ concept of international law in regard to self-determination principle and separation. In case of Crimea we have a mix of different positions which brings researchers and politicians to opposite conclusions. The main juridical problem lies with the question about Crimea legal status as a part of Ukraine. As you remember Crimea was “gifted” to Ukraine in 1954 by former soviet leader Nikita Khrushev commemorating 300th anniversary of unufication of Russia with Ukraine. That “transfer” of territory was done with a complete breach of Soviet and Russian (as a part of USSR) Constitutions and from the very beginning was null and void. But in united State (USSR) it was not the question for serious debate (in Stalin time it was just impossible), hovewer when the USSR desintegrated the question of Crimea’ status arose again. Ukraine separated from the USSR with its borders on the moment of desintegration but Crimea status was not re-affirmed separately. So in fact Crimea was “annexed” by Ukraine and that provoqued Russia’s claims. To add you should know that Crimea was an Autonomous Republic within Russia and later within Ukraine and it was illegal to “transfer” territory from one state to another without people’s vote. Plus, Sevastopol (city with special legal status with direct correspondence to Moscow) was never juridically formed up as a part of Ukraine. So in fact Crimea status within Ukraine was ambiguous and not agreed on between Russia and Ukraine. So the referendum in Crimea was not for self-determination but for re-unification with its historic Motherland (Russia). Roughly like DDR re-united with BRD.
    In terms of international law we don’t have much practice and theory both about reunification matter. That is why Crimean case looks today so controversial.