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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).

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Susana Camargo Vieira says

February 21, 2022

A very well grounded and balanced approach. Matias Alencastro, a Brazilian writer, published in this morning’s paper Folha de São Paulo (thus prior to the recognition) a good and balanced article which I believe might interest you. I have circulated yours to Brazilian internationalist friends and will certainly follow your coverage! And, last but not least, Ukrainians do not deserve to be abandoned. Remember Hitler and Checoslováquia…

Galip Engin Şimşek says

February 22, 2022

I'm not sure that Kosovo is the right example, since it gained its independence under the supervision of UN mandated, despite the mandate's aims. Here, the situation is more like South Sudan, and we need to talk about the condition of effective control.

Gleb Bogush says

February 22, 2022

Dear Marko, thank you for the excellent post.
One comment: It seems that that you did not mention recognition by Russia of regions of Georgia in 2008. The recognition occurred shortly after Kosovo declaration of independence and two years before ICJ proceedings. That explains change of Russia’s rhetoric. Recognition papers for Donbass “republics” are also strikingly similar with Abkhasia and South Ossetia.

Marko Milanovic says

February 22, 2022

Many thanks for the comments - Gleb you are of course completely right about the parallels and continuity with Georgia in 2008.

Anton Moiseienko says

February 22, 2022

Thanks for the post. It is written with your usual clarity and erudition, but I would - with respect - question this statement: ‘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.’

I don’t see how this is a sustainable, let alone incontestable argument. To the extent that Western allies’ credibility in responding to Russia’s behaviour is not unblemished, it is - in my view - mostly as a result of consistently prioritising economic self-interest over principle at pivotal points (the almost proverbial Russian money in London etc), not the invasion of Iraq 20 years ago.

Darko Markovic says

February 22, 2022

This is a very complex issue, which cannot be considered by neglecting farther and closer historical background. And, in general, it is difficult today to speak objectively about international law, when it has been violated for a long time by almost all relevant subjects. It cannot be said that Kosovo is a special case, that rules applied in that case do not apply in others. It is obvious that Russia has learned the lessons of the West well, and now it is following that path itself. All objections directed at Russia in the context of respecting the norms of international law are nothing but hypocrisy. The world really needs an international conference to establish a consensus on universal rules for the application of the right to self-determination and secession. And in particular, a consensus on the issue of the so-called humanitarian interventions - who and under what circumstances can undertake them. Can such a consensus be reached? Of course, it cannot, because the political and economic interests of the great powers are in the foreground. We can only hope that world peace will not be endangered because someone believes that they have greater rights than the world community. And such countries (people) exist in modern society and hide behind the masks of peacekeepers.

Nicolas Boeglin says

February 22, 2022

Dear Professor Milanovic

Many thanks for this extremely usefull post. Concerning Kosovo, the first State recognizing its independance in 2008 (even before the US) has been Costa Rica. In the case of Abkhasia and South Ossetia, after Russia, Nicaragua was the second recognition of their independance obtained.

A suprising recognition obtained from Central American States in quite far and complex geostrategic questions, that I sincerely hope will no continue in the current case you analyse.

Yours sincerely

Nicolas Boeglin

Marko Milanovic says

February 22, 2022

Many thanks again for the comments. Anton to develop my point - the Western states' prior violations of the Charter do make their critique of Putin's breaches more difficult. Not only did they corrode these norms, they also enable immediate whataboutist responses that are, for quite a few audiences around the world, quite plausible. "You talk to us about aggression when you invaded Iraq, collapsing that state and ultimately leading to hundreds of thousands of people killed etc etc?" Again, this type of argument is effective on a number of levels, however morally repugnant it might be. Similarly, when so much depends on reliably establishing the facts that none of us can know from immediate observation - what do you or I know about how many Russian troops are at the border, or how many people were killed in Donbas etc - the West's credibility on the facts ("trust our intelligence") is inevitably undermined by episodes such as Iraq, the non-existence of WMD etc. When people have to choose whom to believe, a prior record of unclean hands doesn't help. And while I can distinguish on multiple levels between Kosovo on the one hand and Crimea and now Donbas on the other (see my prior piece on this), this takes some doing. I mean in the prior Crimea episode Putin was even actually quoting in his speech from Harold Koh's pleadings on behalf of the US before the ICJ. Misrepresenting them to some extent - obviously - but it's not like there was nothing to latch onto. Hope this makes sense, thanks again for the comments.

Svitlana Starosvit says

February 22, 2022

Dear Marco, you mentions that “it is also striking how Russia is, in fact, using the language of international law to justify its actions.” I think there is a difference, a very significant and important difference, between using (abusing?) the language of international law as part of national propaganda to disguise illegal actions and to justify Russia's actions before the international community and partners. “Previous misadventures” of Western allies, you refer to, were part of highly controversial, politicized, but genuine, debates about international rules and their interpretation. We can (and should) agree or disagree on the outcome of those debates, on whether it was a good or a bad idea to expand/narrow certain rules for the parties involved or for the international order more broadly, but I think it is a very dangerous road to take to treat Russia’s claims in a current situation or situation of 2014 as have something to do with those highly controversial but genuine debates about the role of law in global affairs.

Marko Milanovic says

February 22, 2022

Dear Svitlana,

Many thanks for this. I understand fully what you are saying - that international legal language can be used wholly pretextually, in bad faith, and that this is likely or certainly the situation with Russia's arguments regarding Ukraine. But the problem is precisely that a whole lot of people in the world today - not just those who are anti-Western, anti-globalist or whatever - do believe that the examples of 'genuine' debates you mentioned were not, in fact, genuine, and that on multiple occasions Western leaders deliberately and knowingly breached international law. Maybe they had some other good reasons for doing so, maybe their reasons were entirely bad, maybe they were mixed. But again this is how, for instance, Iraq is seen by many, including in the West. No less an authority than Philippe Sands, for example, has argued that UK legal advice enabling the Iraq war was 'the product of calculated manipulation enabled by silences and lies, a grand and disastrous deceit.'
And let's not even go to the US advice, the DoJ torture memoranda, and the lot.

Just to be clear - I'm not trying to engage in false equivalencies here. In particular there are substantial differences between the motives and decision-making processes of democratic states and those of autocracies in which one person calls the shots. But I don't think it's helpful really to talk about Western violations of the jus ad bellum as examples of 'genuine' debates and Russian violations as non-genuine ones. I'm just trying to say that the effects of violations of fundamental rules of international law persist for a long, long time, and that all states - included Western allies - have to reap what they sow here. And the international legal system as a whole has been substantially weakened by some of their actions, not just Russia's, and this unfortunately has consequences for all of us.

Svitlana says

February 22, 2022

Dear Marco, thank you for clarifying your position and response. Let me clarify mine. I am not suggesting that previous and numerous violations of international law did not weaken the system of international law or had some other disastrous effects. Nor do I suggest past violations should be treated somehow differently because how they were debated, conducted or by whom, etc (the word “genuine” was not meant to suggest this.). All I am asking here is - is there any credibility to Russia’s argument: “western partners have abused the international legal system so many times, I am just following the tendency here”? It seemed to me, may be wrongly, that your argument “western arguments in Russia’s criticism could be undermined due to their own long history of previous violations” implied the affirmative answer to this question. If this is so, I thought that criticism of the source of the argument (flawed western powers), which Russia implicitly relies on, still does not sustain Russia”s position in why it is justified to violate international norms.

Johannes Socher says

February 22, 2022

Dear Marko, dear all,

Thank you for this interesting exchange. In my monograph "Russia and the Right to Self-determination in the Post-Soviet Space" (OUP 2021), I dedicated a whole chapter on the evolution of Russia's approach to self-determination in the context of territorial acquisitions. You might want to check it out: DOI:10.1093/oso/9780192897176.001.0001

Heiko says

February 23, 2022

There were some ugly scenes during the riots after that Maidan. People were burned in some building. Not to mention the Russian language. And thanks for "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". Everybody has become crazy.

Kriangsak Kittichaisaree says

February 23, 2022

I find this short article 'Russia and the Right of Peoples to Self-Determination' (07/04/2021) by Johannes Socher quite enlightening:

Johannes Socher says

February 23, 2022

Thank you, Kriangsak! The blogpost is essentially a short summary of my book mentioned in my other comment above.

Anton Moiseienko says

February 23, 2022

Thank you very much for engaging with the comments and providing further thoughts on the subject, Marko - very informative and useful.

Viatcheslav V. GAVRILOV says

February 24, 2022

Dear Professor Milanovic,

In light of your post, in which I understand you are trying to analyze the situation from a purely legal point of view (although the comments on it are mostly political), I would like your comments on some additional issues that you did not mention:

1. The International Court of Justice, in its advisory opinion, emphasized that international law does not prohibit domestic authorities from deciding on their independence, as Kosovo did. It cannot regulate these issues. The legislative bodies of Donbass and Luhansk also made such a decision. Why is this not spoken about or is it condemned?

2. A referendum on independence was held in Donetsk and Lugansk, but not in Kosovo. Why is this not taken into account in the legal assessment of the situation?

3. The primary reason for choosing the path of independence for Donetsk and Lugansk was the adoption by Kiev of a decision on the forcible seizure of these territories by the Ukrainian army шт 2014. Isn't this a sufficient legal basis for declaring independence in order to ensure one's own security?

There are a lot of such actual circumstances that the "West" does not know about, including evidences of a pure genocide of Russian people in the Donbass, which neither Johnson nor Scholz or Biden want to notice. Therefore, I will not list them today.

And now the main question: How can Russia be accused of violating international law just for the fact of recognizing new subjects of international law that made this decision against the backdrop of a coup d'état that threatened the death of their population? Does international law permit the imposition of sanctions for this against a sovereign state and its citizens without any formal legal proceedings or the adoption of a binding decision by an international organization. In this regard, I would be very interested if you pointed to a clause in an international treaty that prohibits Russia from recognizing new states as well?

Viatcheslav V. GAVRILOV,
professor of international law,
School of Law, Far Eastern Federal University, Vladivostok, Russia

Scopus Author ID: 56719169700

Petar Mitrovic says

February 26, 2022

A brief remark on this statement:
'...and partly because they (=Kosovo Albanians) 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).'

While Kosovo Albanians undoubtedly experienced grave violations of fundamental human rights at one point, the 2008 Declaration of Independence came at a time when Serbian authorities had no control over the province. Accordingly, at the time of secession the very existence of Albanians was not — indeed, coult not be — threatened by Serbian authorities.
How does that fit into the remedial secession theory?