By Rebecca Lowe
The referendum held by the
people of Crimea on March 16 may have seen the local population vote to join
Russia, but it provides no justification for the annexation of the province
under international law, according to leading experts.
‘Under Article 2 of the UN
Charter the forceful acquisition of territory is illegal. This is clearly what
happened in relation to Crimea. It doesn’t matter what the result of
the so-called referendum was, or what the will of the Crimean people
may have been. Russia used force against the territorial integrity of
Ukraine. That cannot be retrospectively legitimised,’ says Robert
Volterra, an expert in public international law at London-based Volterra
Fietta.
#Crimea had been part of the Soviet
Union, first as part of the Russian Soviet Federative Socialist Republic
(RSFSR), until it was ceded to the then Ukrainian Soviet Socialist
Republic (USSR) in 1954. With the collapse of the Soviet Union, the
1991 Alma Ata Declaration affirmed Crimea as part of independent
Ukraine.
‘All of this was an
internal matter and apparently done according to the prevailing Soviet
law, so there is no question of illegality at an international level. On
multiple levels, Russia has now transgressed international law and
its only pretext for annexing Crimea is based on the recognition of a
referendum which has no legitimacy in international law,’ adds Volterra.
Following the collapse of the
Soviet Union, Ukraine’s borders were further guaranteed by the 1994 Budapest
Memorandum, signed by Russia, in exchange for giving up its nuclear arsenal. In
2010, Russia also negotiated with the Ukraine Government a renewal of a 1997
agreement enabling Russia to retain a military presence and its Black Sea Fleet
base in Crimea.
‘The moment Russian troops
began moving in force out of their bases contrary to their 1997 Treaty with
Ukraine they were committing an act of aggression under international law and
under the UN definition of aggression,’ agrees Malcolm Shaw QC, Senior Fellow
at the Lauterpacht Centre for International Law, Cambridge University.
The IBA has condemned
Russia’s incursion into Ukraine as a violation of the UN Charter and called for
an independent international investigation into the matter. IBA Executive Director Mark
Ellis said, ‘Ukraine is a sovereign state; Russia, as a UN Member State, is
bound by the UN Charter’s prohibition on the use of force against it. The
prohibition against force has only three exceptions: when authorised by the UN
Security Council under Chapter VII; when there is consent from the territorial
state; and when it is in self-defence.
The first two exceptions do not apply in
this case, as the Security Council has not issued a Chapter VII resolution
authorising Russia to use force, and Ukraine has not consented to Russia’s
military intervention. The third exception of self-defence applies only in
response to an armed attack. Ukraine has not perpetrated an armed attack upon
Russia and accordingly Russia cannot employ the self-defence exception.’
Shaw adds: ‘Crimea was part of
Ukraine when Russian troops took to the streets, under international law it
remains a part of Ukraine. It is not credible for President Putin to claim that
the region’s ethnic Russians were facing an imminent and overwhelming danger,
or that the former Ukraine President Viktor Yanukovych requested Russian
intervention at the appropriate time – by the time of his appeal, it appears,
he [Yanukovych] had deserted his office, left the country and the Ukrainian
Parliament had already sworn in a new interim Government and President.’
In addition, experts argue,
the Crimean Parliament simply did not have the authority to unilaterally decide
its own destiny. Under the Ukraine Constitution it is possible for a region to
seek self-determination, but only through a national referendum.
Limited recourse
Ukraine may have clear rights
under international law, but asserting them is another matter. Its Government
has filed a claim at the European Court of Human Rights in Strasbourg, but the
options beyond this are limited, lawyers agree. Russia does not recognise the
jurisdiction of the International Court of Justice, while its position as a
Permanent Member of the UN Security Council means little chance of formal UN
sanctions given its possession of the veto.
Many therefore question what
next steps Ukraine, the West or Russia may take. The EU and US have introduced
financial sanctions targeting key Russian individuals, but there is no hint of
military intervention. The Russian leadership will likely therefore absorb the
short-term pain of the sanctions for the long-term gain of the country, believe
others.
‘It is unlikely that Russia
will extend further into Ukraine unless Ukraine becomes radicalised and
divided, which could happen if the economy collapses,’ says Neil Williamson, a
director at Emerging Law, who has strong links to the region.
‘This is partly why Ukraine
needs urgent and significant financial assistance,' Williamson continues.
'Donors will want to know that the new government is tackling corruption so
that funding will be properly applied. The protests in Ukraine were mainly
about people saying "no" to corruption and self-serving
politicians.’
With the IMF announcing it had
agreed a $14-18bn stand-by deal with Ukraine at the time of going to press,
early signs looked promising for a closer economic relationship between Ukraine
and the West.
Stefanie Ortmann, lecturer in
international relations at the University of Sussex and an expert on Russian
foreign policy, says: ‘Russia is seeking to regain its “great power” status,
but The Kremlin has not enlarged its territory by either annexation or merging
with another former Soviet Union state since 1991 – even though a
merger was the declared aim of Belarussian President Lukashenko, and several
union treaties with Belarus exist, and in spite of the fact that a referendum
in South Ossetia in 1992 declared a 90 per cent majority for joining
Russia. All of this makes the annexation of Crimea more puzzling. If anything
it also firms up Ukraine’s borders, which may prove significant should it seek
EU or even NATO membership.’
There is no doubt about
Crimea’s strategic military importance, but economically it presents more
challenges to Russia than it solves, add lawyers in Ukraine. ‘Crimea has always
been a difficult place to do business and a drain economically on the rest of
Ukraine. Without significant Russian investment in infrastructure the ultimate
losers in all this may actually be the Crimean people,’ says Timur Bondaryev,
Managing Partner of national Ukraine firm, Arzinger.
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