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

In this post I will not be addressing the legality of Russia’s use of force against Ukraine, but that of its recognition of the separatist republics in Ukraine as independent States. This recognition has been described by numerous other States as not only unlawful, but as a manifest or flagrant breach of international law. For example, the words ‘manifest’, ‘blatant’ or ‘flagrant’ appear in statements from officials coming from the Netherlands, Luxembourg, Georgia, Romania, Bulgaria and the EU’s Josep Borell, to name a few: the authors thus condemn (largely using similar wording) not just any violation by Russia, but one which is prima facie unlawful. It is this idea of Russia’s recognition being so obviously unlawful that I wish to challenge, at least to some extent.

There are several ways in which we could interpret the notion of a ‘manifest violation of international law’. It could refer to the violation’s severity, which implies a violation of either jus cogens in general or aggression more specifically (thus recalling the Rome Statute’s reference to a ‘manifest violation’ of the UN Charter in Article 8, or even the ARSIWA notion of ‘serious breach’ of international law); this is how Dworkin uses the term to describe Russia’s invasion of Ukraine (but not its recognition of the separatists). Israel’s possible future annexation of parts of the West Bank had also earlier been decried as a ‘flagrant violation’ of international law by a UN Special Rapporteur. To me, however, the way the words were employed in relation to the recognition of the separatists in Eastern Ukraine rather refer to the visibility than the severity of the violation: the States condemning the violation find it to be readily apparent.

The discussion of Russia’s recognition of the ‘Donetsk People’s Republic’ (DPR) and Lugansk People’s Republic’ (LPR) has largely been framed around the question of remedial secession (including by Vladimir Putin himself, who seems to be making an analogy with the approach of Western’s States to Kosovo, and not for the first time). This doctrine should not however be the primary yardstick to measure the lawfulness of Russia’s recognition of Donetsk and Lugansk, if it is a legally relevant consideration at all. Even if we were to accept the possibility of remedial secession, the DPR and LPR do not meet its requirements (see discussion here and here), but that alone does not make their recognition an obvious violation of international law.

Rather, for Russia’s recognition of the DPR and LPR to be described as illegal (let alone as obviously or manifestly so), we should demonstrate that it fails to fulfil the more traditional requirements of legality and effectivity. In what follows, I would like to reflect on the implications and challenges of applying these ‘classical’ requirements to the DPR and LPR and what this means for the broader recognition debate.

The recognition should first be scrutinized under legality, which requires that the recipient of recognition not be created in violation of international law, chiefly jus cogens (typically the prohibition of aggression). Other rules of international law specific to a given context may also come into play (such as the Minsk Agreements). A direct causal link between the creation of the DPR and LPR and Russian aggression would prevent them from ever achieving the status of States under international law; third States would also have an obligation of non-recognition towards them in line with the ICJ’s Namibia opinion.

The full contours of the Russian relationship with the separatists are not obvious. A number of different sources confirm that the DPR and LPR have been receiving substantial material support from Russia since 2014 (see here); that Russian units have also been present in Eastern Ukraine since that time (again here and also here); and that Russia has also organized ‘volunteer corps’ to send into Donbas (see here more generally and here for specifics on the ‘Wagner Group’). It is more controversial whether Russia controls the separatists in any way that would make their attacks be equivalent to attacks by Russian regular forces for use of force purposes (there are different perspectives on this point: for positions treating the DPR and LPR as ‘armed groups’ or ‘self-proclaimed republics’, see here, here, here and here; for positions arguing a considerable level of Russian control, see here, here and here). All of these types of Russian support/control have different implications for the legality analysis.

First, the ICJ has treated material support (such as the provision of weapons) to rebels abroad as a ‘threat or use of force’ and ‘intervention’ but not as an ‘armed attack’ required for aggression: if it amounts to the use of force, it would be a ‘less grave form’ (to borrow the phrase from the ICJ in Nicaragua, 1986 Judgment, paras 189ff) falling short of aggression. But this is problematic: in its 2019 report, the ILC only specifically raises the prohibition aggression in its (non-exhaustive) list of jus cogens (pp. 146-147) and not any ‘less grave form’ of threat or use of force. Furthermore, States’ historic opposition to the creation of new States has really focused on cases of full-blown aggression (Northern Cyprus, Abkhazia, South Ossetia, Crimea) as well as a denial of self-determination (Southern Rhodesia and Transkei), rather than just any jus cogens violation. An argument could certainly be made on these grounds, not least bearing in mind the broader ARSIWA Article 41 requirement to not recognize as lawful the effects of jus cogens violations, but it would require significant efforts and would probably never be full proof.

Second, sending armed bands, irregulars and mercenaries into the territory of another State has been described as an act of aggression in UNGA Resolution 3314 (1974). This has also been the view of the ICJ in Nicaragua, and evidence points towards Russia having done so (in addition to its own regular troops fighting alongside the ‘volunteers’ in Donbas). I do not think that it is difficult to conclude that Russian involvement in Eastern Ukraine fits the bill since 2014 and thus amounts to aggression. However, it must still be demonstrated that the potential statehood of the DPR and LPR is an ‘effect’ of Russian aggression, rather than simply a synchronous development. Again, this can likely be done, but it is not manifest.

Third, if an adequate level of control by Russia over the separatists could be demonstrated, then the conflict between the separatists and Kiev would really be a conflict between Russia and Ukraine, and could still amount to aggression. This is not an attribution test and the level of control required to make the determination is probably lower than effective control. In any event, as mentioned earlier, controversies exist regarding Russia’s relationship with the separatists. As far as regular Russian forces deployed in Eastern Ukraine are concerned, the ‘statehood’ of DPR and LPR would still have to be directly linked to their unlawful presence.

As to the role of the Minsk Agreements, it is not at all clear that they are binding instruments and therefore treaties ( e.g. the language used in the first Protocol describes it as an ‘understanding with respect to the need to implement the following steps’). If the Minsk Agreements are not legally binding, then they could not be invoked against Russia’s recognition of the separatists.

Russia’s recognition should also be examined under effectivity. If the DPR and LPR do not meet the certain material criteria of statehood, then their recognition would be premature, a point on which both declaratist and constitutivist scholarship on recognition largely agrees (see e.g. the works of Bluntschli, Hersch Lauterpacht, John Dugard and James Crawford). Lawyers typically refer to the Montevideo Convention for the prerequisites of recognition: if the DPR and LPR possess an effective government, a defined territory and a permanent population as well as the capacity to enter into relations with other States, then their recognition does not violate Ukraine’s territorial integrity and will be constitutive of bilateral legal relations with recognizing States such as Russia.

Again, uncertainty regarding the factual situation in Eastern Ukraine make it difficult to draw conclusions on the statehood of the DPR and LPR. In a ‘classical’ effectivity analysis, we would be required to analyse each of the criteria of statehood to see if they have been met in casu, as the ICTY did for Croatia in a decision in the Milošević case. I do not intend to specifically analyse each of the statehood criteria here, but they would need to be met cumulatively, and the key question regarding the DPR and LPR is really to what extent government is exercised by the DPR and LPR themselves and to what extent this is done by Moscow (see analysis by de Waal), namely whether they are sufficiently ’independent’ of Russia to become States in their own right. Independence is not explicitly listed in Montevideo, but this is how the ICTY and scholars such as Crawford understand the capacity to enter into relations with other States. Evidence points to the conclusion that the DPR and LPR are not independent, but again this cannot be taken for granted and should be carefully demonstrated.

There is perhaps a safer way of concluding that the recognition of the DPR and LPR is premature, but it requires going beyond the Montevideo formula. When Biafra declared independence from Nigeria in 1967, it most likely met the full package of Montevideo, but eventually failed in its attempted secession and was violently reintegrated into its Parent State in 1970. Recognition by a handful of neighbouring States was at the time regarded as a violation of Nigerian territorial integrity (see on this topic Salmon’s La reconnaissance d’état, Paris, 1971). Doctrine has recognized at least as early as Bluntschli that an ongoing war of independence prevents the seceding entity from being recognized, at least until its de facto existence as a State attains a reasonable prospect of permanence. Therefore, the fact that the DPR and LPR have been engaged in a more-or-less continuous conflict with Kiev since 2014 implies that they should not (yet) be seen as States even if they otherwise meet the requirements of Montevideo. I do not think, however, that this would qualify as a ‘manifest’ violation in the sense described earlier.

Although the unlawfulness of Russia’s recognition could be demonstrated under both effectivity and legality, the deficiencies of its decision are not obvious under either limb (meaning that condemnation of its actions should be explained and argued). The discussion has focused so much on Russia’s (mis)use of remedial secession – whither, perhaps, the references to a ‘manifest violation’ – that rules clearly present in positive law, such as effectivity and legality, have been relegated to a background role. In my view, this also demonstrates the need to steer the recognition debate back to its pre-Kosovo modalities, far away from the legally dubious and politically harmful doctrine of remedial secession, and to treat recognition as an important legal act subject to strict requirements and warranting serious legal scrutiny whenever it is given.