5 March 2014
Dr James Summers examines the international legal position of Russia’s occupation of the Crimean region of the Ukraine and the possible status of the peninsula following from this. On 27 February Russian forces, wearing balaclavas to hide their identity, are believed to have moved beyond Russian naval facilities on the peninsula to take control of public buildings, airports and highways linking it with the rest of the Ukraine.

These soldiers have gained effective control of the territory, while Ukrainian forces are currently under siege in their barracks. This takeover swiftly followed the overthrow of Ukrainian President Victor Yukanovych, who fled the country in the wake of an uprising in the capital Kiev on 22 February. Protests against Yukanovych erupted from his decision on 21 November 2013 not to sign a trade agreement with the EU in favour of financial support from Russia. Yukanovych, who drew support from the Russophone eastern regions of Ukraine, was seen by Moscow as an important ally.

The Ukrainian nation is a complex one. An early centre of Slav Rus culture and linguistically close to Russian, Russian nationalists would deny the existence of a separate Ukrainian people. Ukrainian nationalists, by contrast, see Moscow as an oppressor, drawing from memories of the artificial famine inflicted by Joseph Stalin in the 1930s and in the western regions a history orientated towards the culture of central Europe. Conversely, the eastern regions and the Crimean peninsula are more Russian in outlook. These national divisions underlie Ukraine’s pivotal role in the region’s geopolitics. It was the Ukrainian referendum on independence on 1 December 1991 that sealed the Soviet Union’s fate and a Ukrainian President who co-signed its dissolution. With a population of 44 million, the country is the most significant state to emerge from the Soviet Union after Russia. For Russian President Vladimir Putin it is an essential part of his plan to build a credible Euroasian Union as a counterpoint to the West. This ensured that Moscow would inevitably react to Yukanovych’s removal. The Crimea, with Russian naval facilities leased from Ukraine (under Yukanovych’s presidency the lease was extended until 2042) and majority ethnic Russian population, was an obvious point of reaction.

The Crimea is a peninsula on the Black Sea with a population of 1.9 million of whom about 58% are Russian, 24% Ukrainian and 12% Crimean Tatar. It is also an autonomous republic within Ukraine with its own parliament. The region was transferred to the Ukraine relatively recently in 1954 by Nikita Khrushchev and together with its Russian majority this has led to claims of its artificiality within the state. However, it has to be remembered that the Soviet Union was full of arbitrary borders with ethnic groups on the wrong side. To put the Crimea in context, the borders of western Ukraine were drawn by a pact with Nazi Germany in 1939 and forcibly annexed from Poland and Romania. Moreover, it was not just the boundaries of nations that were critical but also their status within the Union. When the USSR dissolved it was into its constituent Union Republics. This meant that other republics that were autonomous but fell short of “Union” status, were denied the opportunity for independence. These tensions ensured that the break up of the Soviet Union, which was largely peaceful, took place with a strong respect for the borders as they then were. The Minsk Declaration of 8 December 1991 that dissolved the USSR acknowledged respect for “territorial integrity and the inviolability of existing borders”. Likewise, Article 3 of the 1993 Charter of the Commonwealth of Independent States, which succeeded the USSR provided for: “respect for sovereignty of member states, for imprescriptible right of peoples for self-determination and for the right to dispose their destiny without interference from outside; inviolability of frontiers, recognition of existing frontiers and renouncement of illegal acquisition of territories”.

This emphasis on the maintenance of borders is absolutely consistent with general international law. A memorable expression of this came with an earlier fracturing of the Russian Empire when Finland declared independence in 1917. An archipelago of islands on Finland’s west coast, the Åland or Aaland Islands, who are almost exclusively ethnic Swedes, sought to separate and join with Sweden. A Commission of Rapporteurs studied the situation in 1921 and rejected their right to do this: “To concede to minorities, either of language or religion, or to any fractions of a population the right of withdrawing from the community to which they belong, because it is their wish or good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life”. This position has been reaffirmed in various subsequent instruments and cases. There is no right for national groups simply to declare their independence and those that do normally face international isolation. Consider Kosovo, which declared independence six years ago. Since then it has struggled to gain recognition from a little more than half the world’s nations and has no immediate prospect of UN membership. And it is one of the most successful examples of unilateral secession.

The idea that regions in the former Soviet states could separate simply because they wish it or their borders were artificially drawn is one that almost every one of those states would react against. Their borders make them all vulnerable, with perhaps the exception of Armenia which occupies part of Azerbaijan. And it should be remembered that a principal reason behind Russia’s invasion is to preserve its influence among those states. The idea that ethnically distinct regions could vote for independence was rejected by the Russian Constitutional Court in the Tatarstan case (1992): “without negating the right of a People to self-determination exercise by means of lawful expression of will, it is appropriate to proceed from the promise that international law restricts it by observance of the requirements of the principle of territorial integrity”. More pointedly, Russia fought two wars, the second one under Vladimir Putin, to prevent Chechnya from seceding, which by conservative estimates claimed the lives of 65,000 civilians.

Russia’s position on secession did undergo a dramatic reorientation during the 2008 war with Georgia, in which Russia recognised the breakaway Georgian regions of South Ossetia and Abkhazia as independent. Its grounds were a damascene adoption of remedial secession – the right of oppressed minorities to secede – in the case of genocide. Russia claimed that Georgia had committed this crime against the South Ossetians, a claim subsequently rejected by an international commission. Nonetheless, in pleadings to the International Court of Justice over Kosovo in 2009 Russia repeated the same standard as a general position. In the case of Crimea, Russia claims that the population is threatened by “ultranationalists” and “fascists” in Kiev. It was certainly true that there were extreme nationalists in the demonstrations, though they were just one element in the protests, albeit a disturbing one, and are not part of the new government. After the revolution, the Ukrainian parliament in a stupidly provocative step voted to drop Russian as an official language. Nonetheless, by Russia’s own standards on remedial secession, which are relatively radical in relation to other states, there is no credible risk to justify Crimean secession.

The current legal situation in the Crimea is an international armed conflict between Russia and the Ukraine deriving from the former’s occupation of part of the latter’s territory. The fact that there are no reports of direct military exchanges does not undermine this status. Legally this means that the Geneva Conventions fully apply. Captured Ukrainian troops must be accorded prisoner of war status and Russia must assume the duties of an occupier under the Fourth Convention. The persecution of Crimean Tatars or ethnic Ukrainians or their deportation would constitute a grave breach of the Convention.

The occupation can also be characterised as an illegal use of force against the territorial integrity of Ukraine that violates the UN Charter; the Helsinki Final Act; Declaration on Friendly Relations; and Budapest Memorandum. It also violates that customary principle of non-intervention in the internal affairs of states. Russian troops are entitled to be present on Ukrainian territory under the terms of the agreement on the stationing the Black Sea Fleet. However, the deployment of troops beyond this consent is considered an act aggression. The UN Security Council reserves the power to determine aggression and as Russia holds a veto on the Council it will not exercise it over this. Nonetheless, the situation falls within the definition of aggression adopted by the UN General Assembly and by states parties to the International Criminal Court. Russia has sought to provide a legal basis for its intervention by consent from an invitation by Victor Yukanovych after he fled to Moscow. As head of state, Yukanovych would be entitled to give such consent, but it appears at this stage he had been removed from office.

Contrary to some suggestions in the popular media, the protection of territorial integrity does not require states to provide military assistance. Ukraine does, though, have right of self-defence and can be legally supported in this by other states. The UN Security Council has the power to recommend enforcement measures, though again the Russian veto is its Achilles heel. An example of this hold over the activities of the UN can be seen in the 2008 war with Georgia. Russia in the conflict recognised the breakaway region of Abkhazia as a separate state. It then vetoed the UN peacekeeping force stationed in the territory, the United Nations Mission in Georgia (UNOMIG) because, in its opinion, it was no longer stationed in Georgia. A draft resolution could be produced condemning the aggression but it would only be symbolic.

Could Russia annex the Crimea? In an ominous piece of symbolism Vladimir Putin’s first public appearance in the crisis was observing military exercises near the Russian city of Vyborg. To the Finns, the city is known as Viipuri. In 1940 Stalin invaded Finland with the intention of returning the former Grand-Duchy of the Russian Empire to Moscow’s rule. Only in the face of fierce Finnish resistance did he have to settle for the annexation of the country’s second city and its Karelian hinterland. In legal terms, the direct forcible annexation by one state of another’s territory would be an egregious violation of the UN Charter, without parallel since Iraq’s invasion of Kuwait in 1990. The prominent position of such as a state as permanent member of the UN Security Council would dent the legitimacy of that body, and accelerate the long-running calls for its reform. The message for former Soviet states would be that their sovereignty and integrity were not secure from Moscow and they would look for alternative guarantees weakening Moscow’s influence. It is notable that following its conflict with Georgia in 2008, Russia rebuffed proposals from the leader of South Ossetia for union with North Ossetia in the Russian Federation. Russia may be prepared to establish protectorates in neighbouring states and recognise them as independent but annexation is probably a step too far.

A second outcome could be for Russian-backed authorities in the Crimea to declare independence and for Russia to recognise them as a separate state, albeit one under its de facto control. This approach was followed in South Ossetia and Abkhazia in 2008. However, Russia’s willingness to treat the two entities formally as states did not mean that other states followed. Despite extensive Russian pressure, none of the former Soviet states recognised them. Venezuela and Nicaragua did, with socialist firebrands Hugo Chavez and Daniel Ortega no doubt enjoying thumbing their noses at America in the process. However, beyond this, Russian officials were reduced to travelling the Pacific trying to buy recognition from tiny microstates. Nauru, which had already made a lot of money playing off China and Taiwan in recognition of one China, was receptive. So too was Tuvalu and one of the benefits it received was a consignment of bottled water from Abkhazia to help with a drinking water shortage. Vanuatu at first recognised and then derecognised. As an attempt to project Russia’s power and influence, these efforts made it look weak. An independent Crimea would fall into a group of generally unrecognised de facto states propped up by an outside power: Northern Cyprus (only recognised by Turkey), Nagorno-Karabakh, Transdniestria (unrecognised) and, of course, Abkhazia and South Ossetia. Moreover, formally splitting the country would drive the rump Ukraine further away from Moscow, whereas Russia’s interest is in maintaining the country within its sphere of influence under a friendly political elite.

Perhaps the most likely outcome, if the conflict does not escalate, would be some form of enhanced autonomy for the Crimea. The announcement by Crimean authorities that they will hold a referendum on 30 March on an autonomous state in confederation with the Ukraine suggests that this is may be Russia’s preferred end game. Crimea already enjoys some autonomy with its own regional assembly, though this is limited in its powers to regulations and can be overridden by the Ukrainian legislature and executive. An autonomous pro-Russian Crimean statelet would avoid the problems with annexation or independence. It would also be attractive for Russia’s position within Ukraine as it would further entrench a network of pro-Russian politicians who could be used to exert influence within the country. The language proposed for the referendum, a confederation, suggests a high degree of autonomy is contemplated with minimal common links between the Crimean and Ukrainian governments and some separate personality in foreign affairs. This would represent a solution much like the Dayton Accords in Bosnia-Herzegovina where the rebel Serb political entity Republika Srpska, which was previously an unrecognised de facto state, was given an extremely high degree of autonomy within a loose federation. This was a solution that America and the European states could live with and the Russian calculation may be that they would accept it again. Nonetheless, the situation still remains fluid and the intentions of Putin unclear.

Dr James Summers is a Lecturer in international law at Lancaster University. James’ research interests lie in the field of peoples’ rights, self-determination and statehood and the related cross-disciplinary topic of nationalism. He also conducts research on the use of force and the laws of war. A second revised edition of his book Peoples and International Law has recently been published by Martinus Nijhoff.

You can find out more about James’ research at: http://www.lancaster.ac.uk/law/people/james-summers