Russia’s Recognition of the ‘Separatist Republics’ in Ukraine was Manifestly Unlawful

The rush to judgment can be deceptive. A recent contribution to these pages cautions us against making instant assumptions of fact and law when considering Russia’s recognition as states of parts of Luhansk and Donetsk Oblasts within Ukraine as manifestly unlawful.

Two questions arise: Do the Oblasts meet the criteria of statehood and, if so, was this status achieved through a sufficiently serious violation of international law to warrant the application of the obligation of non-recognition?

As the Badinter Commission noted, in the first place ‘the existence or disappearance of the state is a question of fact.’ (Badinter Opinion No. 1, 20 November 1991, para 1 (a), 31 ILM 1488, 1494). The two Oblasts declared independence in 2014, in the context (and most would say, in consequence of) the Russian armed intervention of that year. Their purported statehood did not attract any significant international acceptance, including up to this point even by the Russian Federation.

It is doubtful that either entity satisfied the requirement of ‘independence,’ as they have remained entirely dependent on the Russian Federation in relation to security, economy and decisions concerning foreign relations (See Customs Regime between Germany and Austria, PCIJ, Ser. A/B, No. 41, at 45). There is also doubt about the question of territorial definition. The two entities claim their Ukrainian provincial, uti possidetis-type boundaries. Russia expressly extended its recognition to the full extent of those territories.

There is ‘no rule that the land frontiers of a State must be fully delimited and defined.’ (North Sea Continental Shelf, ICJ Reports 1960, p, 32, citing (Monastery of Saint Naoum, PCIJ, Ser. B, No. 9, at 10)). Even if parts of the entity are under illegal occupation by another state at the time of its declaration of independence, this does not exclude statehood. This was demonstrated by the widespread recognition and admission of Croatia and Bosnia and Herzegovina to the United Nations in 1992.

However, in this case, each of the two entities controlled only roughly one third of their supposed state territory when the Russian Federation recognized them. The remainder was held by the state from which they sought to secede, casting doubt on whether they can lay claim to a defined territory, or at least to have established effective control over their purported state territory. This is reflected in the careful language adopted in the General Assembly Resolution overwhelmingly condemning the aggression against Ukraine and the purported change in status only ‘of certain areas of the Donetsk and Luhansk regions of Ukraine.’ (General Assembly Resolution ES-11/1., para 5).

This fact distinguishes this instance from the Yugoslav experience. The former Yugoslavia was deemed to be in a process of dissolution at the point of wide-spread recognition of its former constituent republics. [Badinter Opinion No. 1, above.] It was no longer a legal person able to oppose the claim to effectiveness and statehood of Croatia and Bosnia and Herzegovina respectively. Moreover, both entities seeking recognition were of course the victims of an armed intervention by the then Federal Republic of Yugoslavia. Here, the Oblasts are the co-authors of the intervention, having requested it from the Russian Federation. Indeed, most aptly for the present discussion, the UN Security Council confirmed the positive obligation not to recognize Republika Srpska, the fruit of the armed intervention against Bosnia and Herzegovina, as a state. (S/RES/787 (1992)).

In this instance, the control exercised over the minor part of the claimed territories was obtained through the armed intervention of the Russian Federation: ‘Up to 6,500 Russian troops, organized into battalion tactical groups, invaded Donetsk oblast’ (Chathamhouse, p.8).

The Russian Federation has now recognized the two entities as states, apparently based on the contested doctrine of remedial secession. Rather inconsistently with its position on Kosovo, it had previously invoked this doctrine in the cases of Abkhasia and South Ossetia, along with Crimea. This justification was broadly rejected (e.g., General Assembly Resolutions 68/262, and A/ES-11/L.1).

In the Security Council, the Russian Federation defended its ‘special military operation’ in Ukraine as follows:

The leadership of the Luhansk and Donetsk People’s Republics have asked us to provide military support in accordance with the bilateral cooperation agreements concluded at the time as their recognition. … That decision [to launch the special military operation] was made in accordance with Article 51 of the Charter of the United Nations, the approval of the Federation Council of the Russian Federation and pursuant to the Treaty of Friendship and Mutual Assistance signed with the Donetsk and Luhansk People’s Republics (S/PV.8974, at 12.

The recognition of the two entities, and the literally instant conclusion of a collective defence treaty, along with the supposed receipt and simultaneous granting of a request for the exercise of collective self-defence, all occurred at the same moment. They are all part of the same artifice: to provide some form of legal cover for the invasion of Ukraine and the forcible change in status of parts of its territory. This ploy is as transparent as it is legally unpersuasive.

In the Kosovo Advisory Opinion, the ICJ confirmed that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between States.’ [Kosovo AO, para 80]. It protects Ukraine, not its Oblasts. Similarly, ‘Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State’ (Wall Advisory Opinion, ICJ Reports  2006, p. 136, para 139).

Russia therefore manufactured the statehood necessary to invoke self-defence based on its previous invasion of parts of the two territories.

In addition, self-defence under Article 51 of the Charter requires the ‘State concerned having been the victim of an armed attack’ [(Nicaragua Case, ICJ Reports 1986, para. 195)]. There is no evidence of any kind that Ukraine, surrounded at the material time by a Russian armoured force approaching 200,000, had mounted a suicidal armed attack against the two entities and their Russian protectors.

The Russian Federation has alleged that there were at least acts of sabotage or other incidents. The US government had previously warned that ‘false flag’ incidents of this kind might be invoked by Russia to justify aggression. In any event, even if such limited incidents did occur, they would not amount to “the most grave forms of the use of force’ justifying self-defence  (Nicaragua, ICJ Reports 1986, p. 101, para. 191).

Moreover, the wholesale invasion of the territory with a force of 200,000 would hardly meet the criteria of necessity and proportionality inherent in the doctrine of self-defence (Id., para 176, Platforms, ICJ Reports 2003, p. 161, para 76).

It has however been suggested that Russian support for the armed insurgents in the two Oblasts would not necessarily have amounted to the ‘most grave forms of the use of force’—an armed attack as required by Article 51—necessary to trigger self-defence.

Similarly, it is argued that the Nicaragua test for the attribution of an armed attack to the Russian Federation may not have been fulfilled in this instance.  In cases of foreign support for an insurgent group, the Nicaragua test suggests that self-defence only applies against a supporting state that actually directs and controls the insurgents operating in another territory.

This is a confusion. The trigger of ‘armed attack’ and the Nicaragua test for attribution would determine whether Ukraine might have used force in self-defence against Russia’s support for the insurgent authorities in Luhansk and Donetsk. But that is not the issue here. Instead, the question is whether the two entities were created in consequence of the use of force by another state. As the ICJ confirmed:

… the illegality attached to the declarations of independence thus stemmed … from the fact that they were, or would have been, connected with the unlawful use of force (Kosovo AO, 2010 ICJ 403, para 81).

In other words, the appropriate question is whether a use of force, rather than an ‘armed attack’ has occurred. While it is clear that the present invasion is also an armed attack, it is also clear that the armed intervention perpetrated by Russia since 2014 at least amounts to the use of force:

The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State, … These forms of action are therefore wrongful in the light of both the principle of non-use of force, and that of non-intervention (Nicaragua, ICJ Rep. 1986, p. 101, para 205, also Armed Activities, ICJ Reports 2005, p. 168, paras 161f).           

Article 40 (2) of the ILC Articles on State Responsibility very clearly notes that ‘no state shall recognize as lawful a situation created by a serious breach’ of a peremptory norm of international law.  There is no doubt that the prohibition of the use of force is a peremptory norm of international law. Even a ‘mere’ armed intervention can amount to a grave or serious violation of the prohibition of the use of force, as noted by the ICJ:

The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter (Armed Activities, ICJ Rep 2005, p. 168,  paras 161-165).

This grave violation was committed and maintained in place since 2014. Hence, recognition of parts of both Oblasts as states would have been manifestly illegal at any point since then. However, recognition after the passage of 8 years, as a stratagem to justify the direct invasion of yet more territory, and indeed Ukraine as a whole, removes any doubt that the infraction at issue here is a very serious breach of the prohibition of the use of force triggering the obligation of non-recognition.

The obligation not to recognize fruits of a serious violation of peremptory norms is a firm part of the international constitutional order and not merely an innovation proposed by the ILC.

This principle has been long established, already featuring in the Draft Articles adopted by the Commission at first reading a quarter of a century ago. It included the ‘obligation not to recognize as lawful the situation created by the crime.’ [Draft Article 53, the term ‘crime’ of state was replaced by the notion of serious violations of peremptory norms.] This is codification, not progressive development, following the original Simson doctrine propounded in 1932, in the wake of the Japanese invasion of Manchuria a year earlier.

This obligation has been consistently restated in international standards, ever since the Nuremberg Trials. Resolution 2625 (XXV), which is an authentic interpretation of the UN Charter, states:

No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

Resolution 3314 (XXIX) on the Definition of Aggression also confirms in Article 4 (3) that ‘no territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful’ (GA Res 3314 (XXIX)). Similarly, the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, confirms:

Neither acquisition of territory resulting from the threat or use of force nor any occupation of territory resulting from the threat or use of force in contravention of international law will be recognized as legal acquisition or occupation (General Assembly Resolution 42/22, Article 10).

The UN Security Council has consistently administered this principle in practice, as was noted by the International Court of Justice in the Kosovo Advisory Opinion (Para 81).

… in all of those instances the Security Council was making a determination as regards the concrete situation existing at the time that those declarations of independence were made; the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens) (Kosovo Advisory Opinion, ICJ Reports 2010 ICJ 403, para 81).

Similarly, in the context of Israel and Palestine, the Court confirmed the positive obligation to the effect that ‘all States are under an obligation not to recognize the illegal situation’ resulting from a serious violation of a peremptory norm (Wall, ICJ Rep 2004, p. 136, para 159). Again, this is not a policy proposition but, as the Court noted, it is a requirement of law:

… the principles as to the use of force incorporated in the Charter reflect customary international law … ; the same is true of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force (Wall Advisory Opinion, ICJ Reports 2004, p 136, para 87).

International action in relation to Russia and Ukraine confirms this overwhelming accumulation of international standards, ICJ jurisprudence and state practice in relation to the present situation. General Assembly Resolution 68/262 addressing Russia’s use of force of 2014, and Crimea’s short-lived purported independence that ensued:

Calls upon all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status (Para 6).

Similarly, in relation to the present conflict, the Russian Federation was constrained to veto a draft Security Council resolution that formally deplored its decision relating to the status of certain areas of Ukraine’s Donetsk and Luhansk regions and decided that Moscow must immediately and unconditionally reverse that decision as it violates Ukraine’s sovereignty and territorial integrity (SC 14808, 25 February 2022).

This was followed by the adoption in the UN General Assembly of a resolution sponsored by no less than 93 states and receiving 141 affirmative votes, entitled Aggression against Ukraine. The Resolution reaffirmed ‘that no territorial acquisition resulting from the threat or use of force shall be recognized as legal,’ and:

1. Reaffirms its commitment to the sovereignty, independence, unity and territorial integrity of Ukraine within its internationally recognized borders, extending to its territorial waters;
2. Deplores in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter;

…

5. Deplores the 21 February 2022 decision by the Russian Federation related to the status of certain areas of the Donetsk and Luhansk regions of Ukraine as a violation of the territorial integrity and sovereignty of Ukraine and inconsistent with the principles of the Charter;
6. Demands that the Russian Federation immediately and unconditionally reverse the decision related to the status of certain areas of the Donetsk and Luhansk regions of Ukraine; … (A/ES-11/L.1).

This determination by the UN General Assembly is not wrong or suspect, just because it was made by a large majority and in due time.  To the contrary, the illegality of the recognition of Luhansk and Donetsk Oblasts of Ukraine as states is manifest both in terms of fact and law. This clear finding is amplified by Russia’s reliance on its manifestly unlawful recognition of both entities as a key element of the attempt to justify the wholesale invasion of Ukraine.