By The World On Notice
While
the crisis in Ukraine has been covered exhaustively by the Western media there
has been little discussion on the legality of Russian’s involvement on the
Crimean Peninsula. What is International
Law, where is it derived, and are Russia’s actions legal under that law; are
all questions which will be explored in this article.
Legality
There
have been two main arguments proffered by both the Russian government and
pro-Russian communities around the world, maintaining the legality of Russian
involvement in the Crimea: 1) due to the instability in Ukraine ethnic Russians
and Russian speaking Ukrainians were facing persecution, it is Russia’s duty to
protect the rights and lives of these people through military force; 2) Crimea
has historically been Russian, evidenced by an ethnic Russian majority, and
should be a part of Russia regardless of past agreements.
Russia's Duty
The first argument begins as a
logical non-starter. Under the logic formulated by the Russian government any
nation may not only violate the sovereignty of its neighbor but seize de-facto
control of a state’s territory if there is a community of ethnically similar
individuals living in that area who are facing harm and duress from the
government in power.
First
we have to clarify the distinction between citizenship and ethnic groups. Citizens
of states attain their citizenship through birth or a naturalization process.
Citizenship is usually not exclusive to race, ethnicity or religion, but is
rather a legal mechanism of recognition. As a citizen of a country you avail
yourself of all the rights and protections that the state’s government has to
offer. States have and will use diplomatic and military force to protect its
citizens extraterritorially, or abroad. It is an accepted international legal
norm among state actors since the state is liable for the well being of its
citizens both domestic and abroad.
Just
because a community in a foreign state has an ancestry similar to that of the
dominant ethnic homeland, and may even speak the same language and practice the
same religion, does not mean that they have availed themselves of the rights,
laws, and protections of that country. Instead they have chosen to avail
themselves of the rights, laws, and protections of a foreign entity. Therefore
the responsible party to the community is no longer the ethnic homeland, but
rather the new state which the community resides and availed themselves of its
jurisdiction. The ethnic homeland no longer has jurisdiction or liability over
those persons.
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The
ethnic Russians in Crimea chose to remain on the peninsula after the dissolution
of the Soviet Union in the early 1990s. The community remained there even after
the 1994 Budapest agreement where the Russian state formally recognized Ukraine’s
jurisdiction and sovereignty over the peninsula. By staying in Crimea, the
ethnic Russians waived their right to Russian citizenship and availed themselves
of Ukrainian citizenship.
To
put it into perspective, following Russia’s logic Turkey may also invade Crimea
to protect the Tartars who are ethnically Turkish. Although the Tartars are not
Turkish citizens the ethnic connection would, under Russia’s theory, give
Turkey the legal right to deploy its armed forces on the Crimean peninsula to
protect its ancestral brethren however tenuous the connection. Furthering the
logic, the Dominican Republic would then have a right to deploy its military in
New York City since there is a major plurality of Dominicans living in New York
who may be mistreated by the legal authorities of the city.
Due
to the fluidity of the world population, Russia’s logic would permit states to
consistently violate the sovereignty of alien nations due to tenuous ethnic and
ancestral connections of the populations of foreign states. The result would be
international anarchy of proscriptive law, with constant and continuous conflict.
Legally,
the United Nations Charter makes it unlawful for any state to engage in armed
conflict other than in cases of self-defense, or when the Security Council
authorizes the use of force. As the successor to the Soviet Union, Russia is a
signatory to the charter and is therefore bound by its provisions. Its military
deployment on the Crimean Peninsula violates those provisions.
Russia is not engaged in self-defense since its
territory is not militarily threatened by the governmental transition in Kiev.
Although the Russian government may claim collective self-defense, whereby a
state may intervene through the use of force to defend an ally due to a legal
obligation, that argument also falls short. There is no agreement between
Russia and the autonomous government of the Crimean peninsula that calls for
military protection. Further, a treaty between the two cannot exist since
treaties are only formed by two independent state actors, and Crimea is not
independent although it is autonomous.
Finally,
the UN Security Council has yet, and will most likely never, pass a resolution
permitting Russia the right to use military force in Ukraine let alone Crimea.
Russia’s current military deployment on the peninsula is therefore a clear
violation of the UN Charter and International Law.
Claim Over Crimea
Pro-Russian nationalists also focus on the overall sovereignty of Crimea, and whether Russia’s
claim to the region is historically more legitimate than the current Ukrainian jurisdiction. In order
to understand it is necessary to put a few facts into historical context.
In
1954 Ukraine and Russia were part of the Soviet Union and were Soviet Socialist
Republics. In that same year the Soviet Union’s governing body unilaterally
decided to transfer the Crimea and other territories, today comprising Eastern
Ukraine, from the Soviet Federative Socialist Republic of Russia to the Soviet
Socialist Republic of Ukraine. After the dissolution of the Soviet Union in
1991 the individual Soviet Socialist Republics became independent states, and
the administrative borders under the old USSR system became borders for the new
states.
In
1994 Russia and Ukraine signed the Budapest Agreement. In the agreement Russia
recognized Ukrainian sovereignty over the Crimea and the other parts of Eastern
Ukraine. In exchange Ukraine transferred its arsenal of nuclear weapons it had
inherited from the Soviet Union to Russia, and agreed to allow Russia to
continue using Sevastopol as a naval base for its Black Sea Fleet, under a long
term lease agreement.
Under
International Law states are bound to the agreements and obligations made in treaties including recognition of an alien state’s claim and sovereignty over an area.
The Aouzou Strip conflict, between Chad and Libya, ended with a decision by the
International Court of Justice. The ICJ determined that a treaty between the
colonial powers of Italy and France over the territories that would later
become Chad and Libya were binding international law upon the successor states
to the territory, although the two states had not been established at the time
of the treaty, or gave their consent to the cessation of land. While the ICJ
decision is not binding precedent it showed that there is a deference given to
agreements by treaty over land agreements, and states inherit these duties from
their predecessors regardless of the fairness of the transaction.
In
cases where the former dominant state or empire has dissolved, international
law gives preference to the maintenance of the former state’s administrative
borders under the principle of “uti possidetis.” Uti possidetis affirms the
administrative borders of the former state as the international borders of the
succeeding state in cases of dissolution and secession. During the dissolution
of Yugoslavia the principle of uti possidetis was used to deny the Serbian
population of Bosnia and Herzegovina the right to create an ethnical enclave
within the country and secede from it.
Considering
the unilateral legislative action the Soviet Union took in transferring territorial
control of the Crimea to Ukraine, the principal of uti possidetis which recognized
the administrative borders of the former Soviet Republics as the international
borders of the new independent states after the USSR dissolved, and Russia’s
subsequent recognition of those borders through the 1994 Budapest Agreement,
Ukraine has full sovereignty, jurisdiction and claim to the Crimea under
international law.
While
Russia does not have a valid claim to Crimea under international law, an
argument can be made that it is supporting the self-determination of the people
in the province who have decided to secede from Ukraine. Such an action would
be akin to Russia’s 2008 invasion of Georgia on the pretense of the support for
the self-determination of the populations of South Ossetia and Abkhazia. Both
areas subsequently seceded from Georgia.
However,
self-determination was a principle espoused after World War 1 to allow for the dissolution
of the empires on the European mainland and the creation of smaller states
reflective of the ethnic population in several different regions of the continent.
It was revived following World War 2 as a principal for the decolonization
process that began after the conclusion of the war. Even during decolonization
the prior borders established by the imperial powers were maintained under the
principle of uti possidetis regardless of their arbitrary nature and lack of
conformity among geographic and ancient tribal boundaries. In short
self-determination did not override the existing or inherited boundaries
between states.
Even
in light of self-determination secession is generally not recognized under
international law. In the Aaland Island conflict, the League of Nations judicial
body expressed that unless there is a “manifest and continued abuse of
sovereign power at the determent of the section of the population of a state” secession
was not a valid legal option. Secession was acceptable during decolonization
due to the implied abuse that the indigenous populations suffered during the
colonization by the imperial powers.
While
recently Kosovo and South Sudan have seceded from the control of their former
parental sovereign power, in both situations their populations claimed abuse by
their former government at the determent of the seceding populations,
highlighted by the genocide in Kosovo and the civil wars in between what is now
Sudan and South Sudan.
In
the current conflict Russia does not cite any currently manifested abuse of
sovereign power at the expense of the ethnic Russians living in the Crimea. The
Russian government only purports the possibility of such abuse. The violation
of a state’s sovereignty cannot be contingent of the threat or possibility of
future abuse at the determent of a population. Such preemptive action does not
keep in accordance with the principle that such abuse must be on a continuous basis
to be acceptable under the auspices of international law.
The
final analysis of self-determination in relation to the current Crimean
conflict brings an analysis of the secession movement in Quebec. The province
of Quebec requested to secede from Canada in light of the difference in culture
and language between the province and the rest of the state. The claim was
based on a theory of self-determination, that secession was necessary to
preserve their culture, language and way of life. The Supreme Court denied the
request citing that such “harm” was not symptomatic of sovereign abuse
necessitating secession.
While the Supreme Court of Canada was
determining Quebec’s petition to secede from Canada, an amicus brief was filed with
the court by representatives of Canada’s First Nation population, the indigenous
people to North America. In the brief the Native Americans argued against
secession fearing that an independent Quebec would not guarantee them the same
rights they enjoyed under Canadian sovereignty.
Although ethnic Russians make up
a majority of the population of Crimea, it is a small majority. Only 54% of the
population is Russian, with the majority of the remaining percentage being
either Ukrainian or Tartar. The small majority amongst the plurality can be
explained by the forced removals and relocations of the Tartar population in
the Crimea due to policies under both the Tsarist Russia and the Soviet Union.
The Soviet Union, especially under Stalin, relocated hundreds of thousands of
ethnic minorities and spread them out across the country to generate
assimilation and integration. It can be said that the Russian majority was a
product of Soviet social engineering.
Regardless of how the Russians
came to be the majority in Crimea, the fact remains that there is still a large
minority population on the peninsula of non-Russian ancestry. Like the Native
Americans in Quebec, the Tartars and the Ukrainians in Crimea do not want to
secede from Ukraine. Concerns due to past mistreatment these populations have
experienced as the hands of the Russians support their desire to keep the
status quo. The fear that the slim majority of ethnic Russians have on the
preservation of their language and treatment by a Western backed Ukrainian
government does not outweigh the fear of the large minority population of
secession and does not meet the threshold under international law to be a valid
justification, similar to the Quebec case.
Final Thought
For Americans the crisis in
Ukraine has stirred up memories reminiscent of the Cold War. On one side the
malevolent Russians flexing their military muscle and daring the West to
respond. Opposing the Russians are the helpless Ukrainians, who have endured
decades of oppression at the hands of their behemoth neighbors. While the
geo-political scenario unfolding in the northern reaches of the Black Sea seems
akin to the great chess game the West and the Soviet Union played during the
Cold War, the situation in Ukraine is anything but. This isn’t an ideological
battle between capitalists and communists, but a clash of states over a region
with both historical and strategic value to both actors.
When
the pro-Russian Ukrainian President, Viktor Yanukovych, fled Kiev the Russian
military wasted no time in solidifying its presence on the Crimean Peninsula.
While relatively unknown to those of us in the West, especially in the United
States, Crimea is a strategically important area of the Black Sea that holds a
significant place in Russian history.
At the beginning of the reign of Tsar Peter the Great,
Russia was a landlocked country, considered more Asian than European by the
great powers of Europe. When Peter ascended to the throne in Moscow, he set out
to create a modern European nation that could compete with the power and
prestige of its neighbors to the West. To do so, Peter understood, Russia
needed access to the sea.
While establishing St.
Petersburg and other ports cities in the North and East gave Russia access to
the Baltic Sea, Arctic, and Pacific Oceans, it still left the nation without a
warm water port. It wasn’t until the mid-18th century, under the rule of
Catherine the Great, was Russia able to push the Ottoman Empire out of the
Northern edges of the Black Sea and establish a major warm water port with
access to the Mediterranean Sea. Sevastopol on the Crimean peninsula became the
major Russian port on the Black Sea, and home to the Russian Black Sea Fleet.
It became the symbol of the Russian Imperial accomplishment, and later the
dominance of Soviet Union.
Crimea represented the dreams
and goals of an aspiring Russian Empire during the 17th and 18th century, while
subsequent Russian sovereignty over the area represented the attainment of its
imperial aspirations and the respect among the European community that
accompanied it. Even when the Russian Empire collapsed the successor state, the
Soviet Union, maintained the same mentality.
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