magnify
Home EJIL Analysis Crimea and the Limits of International Law

Crimea and the Limits of International Law

Published on March 10, 2014        Author: 

The situation in Crimea has left many an international lawyer in shock. It seems to transport us back to past times when the superpowers did what they pleased and the others suffered what they must. The end of the Cold War, so we hoped, had ushered in a different era in which international law found greater respect. The post-9/11 years sowed doubts about this; now we’re getting closer to certainty that the times haven’t changed that much.

For some, like Eric Posner or Julian Ku, Crimea is yet another piece of evidence that international law is weak. Of course it is, but this weakness is entirely unsurprising. Who would have thought that the rules on the use of force could be effectively enforced against a great power, a regional hegemon, in its own backyard? Great powers – including Western ones – have always treated the law on the use of force somewhat liberally. They have evaded censure, or didn’t care too much about it when the stakes were high. And the UN collective security system is explicitly designed in a way that makes action against them impossible. This tells us something about the limits of international law, and, as Erik Voeten rightly points out, it should give us reason to worry if a legal system allows powerful actors to ignore it so openly. But for international law, this is nothing new. When it comes to the use of force, some states have always been more equal than others.

At the same time, there are aspects of the Crimea crisis that do seem to reflect a certain impact of international law. Cynically enough, the strongest effect might be that we see Russia intervening ‘only’ in Crimea – not in Eastern Ukraine or Ukraine as a whole (for now). More directly, as Chris Borgen highlights, international law has forced Russia into a certain rhetoric of justification, even if it was initially a surprisingly shifting one. Perhaps those shifts stem from the fact that the Russian government itself was surprised that it needed to come up with justifications at all. Most importantly, the need to justify seems to have driven Russia into considerable secrecy.  Operating through unmarked troops – as it seems to be doing – and declaring them Crimean self-defence units is designed to evade attribution, or at least to create enough uncertainty about it that denials become plausible. This suggests that Russia does care about its international audience (at least a bit), and knowing that international law matters for that audience it has chosen a less open form of invasion.

In its efforts at justification the Russian government has also managed to exploit certain points of uncertainty in international law. Its claim to protect Russian citizens from danger may lack a visible factual basis, but its rationale follows the practice of many (including Western) countries to undertake rescue operations for their own nationals without the consent of the country concerned – even if this practice is obviously in tension with the strictures of self-defence under the Charter (see Daniel Wisehart’s post on this). Russia’s second main claim, intervention upon invitation, exploits an opening created by earlier instances of intervention (especially in Western Africa), which equally relied on the consent of deposed, democratically-elected governments (see Zachary Vermeer on this). We may find this inconclusive as a matter of law, but the traditional position – that only a government in effective control can issue invitations to intervene – is certainly not as settled as it used to be. Likewise, the claim about self-determination and the right of Crimea to join Russia is no longer as difficult to make as it has been before Kosovo’s secession from Serbia. Claims to external self-determination are stronger now than they once were (see this piece by Rob Howse and Ruti Teitel), and even if the situation in Crimea does not present some of the characteristics often required by proponents of a right to secession (especially discrimination and systematic human rights violations) and completely eschews attempts at a negotiated settlement, Russia (and the pro-Russian rulers of Crimea) can use the greater state of flux in this area of law to present their case as arguable. The fact that Western countries supporting Kosovo didn’t put forward a rationale for the right to secession, except by pointing to the uniqueness of the case, did not help to clarify the law in this area.

Russia’s claims are overall weak, partly because they are based on problematic legal positions, partly because they rely on facts – supposed threats to Russians and Crimeans – which don’t seem to exist, and partly because they use a show procedure (a referendum convened within two weeks in the shadow of a military occupation) as a basis. Yet it is ironical that these claims have come into the realm of the arguable because traditional constraints in the law on the use of force and self-determination have been blurred by instances of liberal interventionism over the last two decades. The more formal classical rules have come under pressure by arguments from democracy (recognizing the continued relevance of a democratic government in exile), from rights (of individuals threatened by a crisis, calling for protection and intervention) and from liberal conceptions of political choice (the right to secede as an exercise of self-determination). As these rules become more elastic, they provide openings for abuse, and they more easily provide cover for the interventionist practices of powerful countries. Softening limitations on force, albeit for the sake of important values, always risks putting us on a slippery slope, and it might make the constraining effect of international law in this area – weak as it is in the first place – only weaker.

Print Friendly
 
Tags:

20 Responses

  1. Heiko Recktenwald

    Well, I think if we woukld bve more realistic about the revolution that happened in Kiew everything would be more easy. The problem is not the right to intervene or the right to a secession but secession as a fact as in the ICJ opinion and the state as a subject of PIL. I still think that you cant stop a revolution once it has started. IMHO Obama paints his picture as if there had been no revolution. As if everything went the usual democratic way in Kiew. But then democracy in Ukraine is nothing but ochlocraty. Some oligarchs change their mind and their clientele follows. And we shall continue to believe this theater.

  2. Heiko Recktenwald

    If we go back in history to the contrat d’etat and the monarchomacians, Junius Brutus etc, the king needs some acclamation and there was no acclamation to the “revolution of the language law, the impeachment of the former president and the liberation of Julia T.” amongst “Russians”. We dont need any thread to Russians for this.

  3. Heiko Recktenwald

    From “selectiv punishment” of Julia T. to “selectiv perception”…

  4. Jordan

    I do not agree that interperting allegedly “more formal classical rules” in order to serve human rights (guaranteed to all persons under the U.N. Charter) and to oppose genocide, crimes against humanity and war crimes are at all to blame for manfiest Russian aggression (here I have in mind the Kampala definition of aggression). Grotius recognized the right to engage in war against an oppresive ruler (so what is “traditional”?). The 18th and 19th Centuries saw acceptance of rights to reveloution against tyrnaical regimes, and so forth. Traditional international law left room for self-defense of nationals abroad, “denial of justice,” and suppport of humanitarian intervention. Since WWII, however, we focus on Articles 1, 2(4) (with its express prohibition of merely three types of force, not all), 39 and 42 (“enforcement action”), 51 (if an “armed attack occurs”), and 52 (“regional action” as re: NATO authorization of force in Kosovo).
    What is critical in this instance is context, the facts.
    Russia has no S.C. authorization of enforcement action, no regional authorization of regional action, no evident factually-based claim to self-defense of nationals, no evident factually-based claim to intervention to stop widespread human rights violations or genocide, crimes against humanity, or war crimes.
    There is no need for members of the international legal profession to apologize for blatant Russian aggression.

  5. Nico Krisch makes an excellent point and provides a much more differentiated and convincing argument than the standard „limits of international law“ school of thought. And I fully agree that a more formalist or “traditional” reading or understanding of the rules of international law is probably not the worst idea, especially in an international legal system that, to a large degree, has to function without centralized law enforcement organs, and in which the legal constraints for the use of force in a specific case are primarily discussed by state representatives within diplomatic forums and not determined by international courts. Of course, one may (and, in fact, has to) contest the factual premises and (weak) legal claims advanced by Russia. But they come as no surprise to anyone who remembers the Russian argument that it was fulfilling its (or the international community’s?) „responsibility to protect“ through its military intervention in Georgia in 2008. Of course: liberal, value-oriented understandings of international law, as well as approaches that emphasize human rights, self-determination and democracy do in no way legitimize the Russian advancement. But they nevertheless opened the door for the arguments now brought forward by Russia. However ludicrous those arguments may be.

  6. Jordan

    Perhaps indirectly the failure of the Obama Administration to initiate prosecution of Bush, Cheney, Rumsfeld, Gonzales, Rice and others who are reasonably accused of authorizing or abetting war crimes and crimes against humanity (like secret detention) and the ultimate refusal of Spain, Germany, and other countries to bring such persons into custody and to initiate prosecution has contributed it an atmosphere of impunity.
    Consider the haunting warning (otherwise not on point regarding international aggression and crimes against others):
    “We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to law.” Justice Jackson as Chief Prosecutor at the IMT at Nurmeberg.

  7. David Hernández

    @ Mr. Recktenwald:
    If at issue was an uprising in Crimea against central power in the context of post-revolutionary Ukraine, that would make for completely different reading. It wouldn’t arguably even feature on EJIL Talk, by the way.
    However, the crux of the matter is obviously not that one. It is a country forcibly occupying a region of her neighbor and threatening to do the same with the rest of that neighbor.
    With due respect, your PIL/constitutional law/politics mishmash is, to say the least, completely off-topic.

  8. Neither Robert McCorquodale nor Greg Fox in today’s posts on Opinio Juris appear to mention the Crimean Tatars, whose homeland Crimea is, and who numbered 14% of the peninsula’s population at the last census. They are now probably at least 17%, with a higher percentage of Crimean Tatar children in schools. They are well organised, and the first disturbances several days ago were between Crimean Tatars supporting the Maidan and ethnic Russians.

    The Crimean Tatars have a long-standing claim for recognition as the indigenous people in Crimea, and have campaigned for many years for Ukraine to ratify the ILO Convention 169 of 1989. They are active in UN and Council of Europe mechanisms. As is well known they have a very large diaspora in Turkey and elsewhere since the Khanate of Crimea was conquered by Catherine II and Prince Potyomkin in the 18th century (Erdogan has recently promised to protect their interests), and in August 1944 they suffered mass overnight deportation to Uzbekistan, killing half their number; and at least 50% of Crimean Tatars are still unable to return from Uzbekistan. This “genocide” is vividly present in the minds of living Crimean Tatars.

    It is in my view incorrect to speak of a “Crimean people” with a right to self-determination while excluding the Crimean Tatars.

    In any event, many of the Russians living in Crimea are the families of present or former service personnel. The “Autonomous Republic of Crimea” (in the unitary state of Ukraine) was created in the 1996 Constitution in order to head off Russian irredentism, and gives Russians substantial linguistic and other privileges. The irredentist movement effectively disappeared. See my “The Crimean Autonomy: Innovation or Anomaly?” in Marc Weller and Stefan Wolff (eds) Autonomy, Self-governance and Conflict Resolution: Innovative approaches to institutional design in divided societies (Routledge, 2005) pp.75-97

    If Crimea were to “join” the Russian Federation, Russia would be opening a Pandora’s box of intersecting self-determination claims.

  9. E CHADWICK

    I have two questions: first, on what basis do the Crimean ‘Russians’ have a separate entitlement to self-determination from Ukrainian ‘Russians’? Secondly, why has no one referred to the applicability of 1949 Geneva Convention IV?

  10. Jordan

    Some have referred to GC art. 47 — the illegality of annexation of occupied territory — as supplemented by the ICRC’s IV Commentary. Also, art. 49 and 147 are relevant.

  11. E CHADWICK

    Many thanks, Jordan. There is also Article 45 of the Regulations annexed to Hague Convention IV of 1907, regarding the new ‘recruits’. While they may not be ‘compelled’ to swear allegiance, I wonder, given the prevailing political and economic atmosphere.

  12. Bill Bowring makes an excellent point regarding competing claims to self-determination within Crimea if secession proceeds as planned. Can someone link back to sources (Russian/Ukrainian/English) that discuss the issue? Thank you.

  13. […] 10 March 2014 Nico Krisch at EJIL: Talk! (arguing that international law is playing a substantial role in the crisis but that the rules on […]

  14. Remy Jorritsma

    E. Chadwick: I made some observations on the application of IHL (incl. Geneva IV) to the situation in the Crimea, on Opinio Juris, see http://opiniojuris.org/2014/03/09/ukraine-insta-symposium-certain-para-military-activities-crimea-legal-consequences-application-international-humanitarian-law/

  15. E CHADWICK

    Many thanks, Remy – it’s what I’ve been telling my students, and I’ve recommended your opinio juris comment to them. However, that still leaves the issue of Crimea’s ‘Russian’ self-determination. Given that any notional acceptability of self-determination claims has for some time been guided by the categories indicated in Article 1(4) of the 1977 Geneva Protocol 1, I still fail to detect that close a parallel between Crimea’s ‘Russians’ and Kosovo’s ‘Albanians’, not only in population figures, but also in terms of prior ‘oppression’, etc. (reference being made here to Bill Bowring’s points, above, re the Tatars).

  16. […] 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 […]

  17. G.H.

    On Crimean Secession, Fairness, and Self-Determination: http://ilg2.org/2014/03/19/on-crimean-secession-fairness-and-self-determination/

    Finally, from a fairness perspective, let me quote a question which one of my International Law students recently posed: since Crimea used to be a part of Russia until 1954, since the legitimacy/rationale of its transfer to Ukraine in 1954 is dubious, and since the majority of its population is Russian and may truly wish to re-join Russia, what is so bad about the referendum and its result? The biggest obvious issue related to the referendum has to do with its own fairness – were the people of Crimea truly able to vote and express their wishes, or was the referendum influenced by the presence of Russian forces? Were the results properly tallied? Assuming that the referendum was conducted fairly, my student’s question seems pertinent and right on point. (…)

    I think that’s what is really relevant and has not been answered in any reasonable form by either the ICJ or nationstates… I mean how can you prohibit – for all times – the right of self-determination of a territories people in a treaty and what’s next – bartering away human rights as we start doing in the digital sphere? It’s cynical to talk of breach of international law when the treaty has such a content…

  18. […] 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 […]