Recognition

Tonight President Putin gave a long televised speech announcing the Russian Federation’s recognition of the separatist Donetsk and Luhansk republics in Eastern Ukraine as independent states. He also announced the signing of treaties of friendship and assistance with the two supposed newly independent states.

This probably took place earlier in the evening – video of the signing ceremony here. While I very much doubt that international law – any version thereof, including distinct Russian approaches – has any kind of influence on President Putin’s decision-making regarding Ukraine, today or in the near future, it is also striking how Russia is, in fact, using the language of international law to justify its actions. There is an act of recognition, there are treaties, there is reliance on some kind of theory of remedial secession or self-determination in response to an alleged genocide. In doing so Russia is very much following its Crimea playbook, when the exact same steps preceded its forceful occupation and annexation of the territory, with the consent of a supposed newly independent state. And as I had written at the time, there is particularly striking contrast here between Russia’s negative view of Kosovo’s secession from Serbia and its position on Ukraine. But there is also a degree of consistency in what Russia’s articulated position of legal principle is. The Russian Federation was in fact the only permanent member of the UN Security Council which, in appearing before the International Court in the Kosovo advisory proceedings, endorsed a theory of remedial secession or self-determination.

For example, Russia’s written statement in the Kosovo case, on p. 31, para. 88, says that:

[T]he Russian Federation is of the view that the primary purpose of the “safeguard clause” [of the Friendly Relations Declaration] is to serve as a guarantee of territorial integrity of States. It is also true that the clause may be construed as authorizing secession under certain conditions. However, those conditions should be limited to truly extreme circumstances, such as an outright armed attack by the parent State, threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State.

The written statement adds at pp. 39-40 that:

outside the colonial context, international law allows for secession of a part of a State against the latter’s will only as a matter of self-determination of peoples, and only in extreme circumstances, when the people concerned is continuously subjected to most severe forms of oppression that endangers the very existence of the people.

All of the (factually wholly implausible) rhetoric about ‘genocide’ in the Donbass essentially serves the purpose of fulfilling the factual predicate of this theory, i.e. that the ‘very existence of the people’ of Donetsk and Luhansk was under threat by Ukraine, the parent state, so that their independence was a justified measure of last resort. But even so, Russia to this day claims that under the exact same theory Kosovo did NOT have the right to become independent from Serbia, partly because Kosovo Albanians do not constitute a ‘people’ (whereas Russians or Russian-speakers in the Crimea or the Donbass somehow do), and partly because they were not ‘continuously subjected to most severe forms of oppression’ (this despite the findings of a UN criminal tribunal documenting mass atrocities in Kosovo, including the forcible displacement of many hundreds of thousands). (see CR 2009/30).

In sum, this is an excellent example of how a ‘progressive’ theory such as remedial secession/self-determination can be used for decidedly non-progressive ends, such as justifying territorial conquest. It is also an example of how, even at times of its greatest irrelevancy, international law is the only language that can be used by all parties to the dispute. Note how Russia’s recognition of the two separatist republic has already been condemned by the UK prime minister as ‘plainly in breach of international law. It is a flagrant violation of the sovereignty and integrity of Ukraine,’ and how similarly-worded statements have also been made by the White House and highest EU officials. And this is also an excellent example of how the operation of (real or supposed) legal rules can depend on deeply contested facts, and on the construction of fundamentally opposed realities. It is also, in that regard, simply incontestable that, no matter how fantastical some Russian claims may be, the credibility of Western allies in responding to Russia’s violation of Ukraine’s sovereignty remains deeply undermined, on the law and on the facts, by their own previous misadventures, including the 2003 invasion of Iraq. The one reality that is unfortunately also incontestable is that much suffering now appears inevitable for the people of Ukraine.

(We will of course have more coverage of the developing situation in Ukraine on the blog in the days to come; unsolicited submissions to the editors are, as always, welcome).