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

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, 2^nd 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 19^th 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.