Territorial disputes: Crimea (Part 10) [Post 75]

Crimea and colorable claims based on moral standing

We introduced yesterday the colorable claim based on law in the context of Crimea. For a notion of “colorable claim” based on a historical claim and based on law see our previous posts this week.

Post 71: Territorial disputes: Crimea (Part 6) Crimea and the different claims

Link to post

Post 72: Territorial disputes: Crimea (Part 7) Crimea and the colorable claim: who counts? 

Link to post

Post 73: Territorial disputes: Crimea (Part 8) Crimea: same facts but different accounts

Link to post

Post 74: Territorial disputes: Crimea (Part 9) Crimea and colorable claims based on law

Link to post

Amongst other legal issues concerning Crimea, we referred yesterday to the Budapest Memorandum. Regardless of the discussion about the legal or political value of this international document, it is important to distinguish two concepts: sovereignty and self-determination. 

In international relations, self-determination is a principle that allows a certain group of people who live in a given territory to have the right to decide who will govern them. Although both are legal and political concepts, sovereignty gives priority to the State whereas self-determination gives preeminent place to the people. 

The notion of territorial integrity is directly linked to the concept of state sovereignty since nowadays sovereignty is territorially defined.

To sum up the legal issues in relation to this TERRITORIAL DISPTUTE: Russia and Ukraine support their claims using different approaches. Russia claims to protect the self-determination right of the people in Crimea while Ukraine claims the violation of their territorial integrity.

A few points of interest relevant to Crimea, territorial integrity and self-determination:

“Contrary to what one might initially think, the underlying premise of the territorial integrity norm is not a commitment to separateness but a commitment to a global political order in which people have excised a major source of international violence. In this sense mutually recognized and respected boundaries are not what separate peoples but what binds them together.”

The Territorial Integrity Norm: International Boundaries and the Use of Force

Link to the complete article

“The perceptions of Russian threat to the territorial integrity of Ukraine that underpinned its demands for security guarantees in the early 1990s have proved justified. Bereft of allies and weakened by perennial bad governance that led to an internal political crisis, Ukraine became an easy target for Mr. Putin. The Budapest Memorandum failed to deter Russian aggression because it imposed no immediate cost for its violation. The political assurances it provided rested on the goodwill and self-restraint of the guarantors, an arrangement that can work between allies but not potential adversaries. The Crimean crisis exposed how quickly self-restraint dissipates when a guarantor becomes revisionist.”

Ukraine’s Territorial Integrity and the Budapest Memorandum

Link to the complete article

“Interestingly, in these two different cases, despite being in opposite positions, Russia has been able to posture itself favorably. In the case of Chechnya, Russia justified its position with the right to protect its national unity and territorial integrity suppressing Chechens’ aspirations for self-determination, while in the case of Crimea fully supporting the Crimean Russians’ separation from Ukraine to join Russia. These two cases are a sign of the futility of international law to achieve justice; rather they show that power, a realist concept, still plays a decisive role in Russia-centered politics.”

Power, National Unity, and Territorial Integrity: the Cases of Russia’s Chechnya and Ukraine’s Crimea

Link to the complete article

The last article reviews whether it may be possible to resolve the dilemma of self-determination versus territorial integrity. As the reader may expect, the conclusion remains open. That is because although we may refer to legal concepts such as self-determination and territorial integrity or State sovereignty, TERRITORIAL DISPUTES are not centred only on law. They are multi-faceted and multi-level. Therefore, other elements such as power, interest, domestic, regional, and international prestige, and many other issues at stakes should be considered in we aim to achieve a peaceful and definitive solution.

SELF-DETERMINATION. Sovereignty, Territorial Integrity, and the Right to Secession

Link to the complete article

NOTE: This post is based on Jorge Emilio Núñez, “Territorial Disputes and State Sovereignty: International Law and Politics,” London and New York: Routledge, Taylor and Francis Group, 2020 (forthcoming)

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, “Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue,” London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: Crimea and colorable claims based on moral standing (cont.)

Friday 28th February 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Crimea (Part 9) [Post 74]

Crimea and colorable claims based on law

The post today introduces the second ground for a colorable claim: law.

A colorable claim is based on the legal status of these claims when any of the parties use or may use law to support their right to claim sovereignty. In this case, they may use international customary law or treaty law to support their position. For instance, the case of one of the parties that did not have effective current occupation of the third territory but had continuously claimed sovereignty in international forums such as United Nations following international public law regulations.

 

Sumner (2004) brings an excellent article that covers TERRITORIAL DISPUTES before the International Court of Justice. An extract of the text and the link to the complete article below:

 

TERRITORIAL DISPUTES AT THE INTERNATIONAL COURT OF JUSTICE

BRIAN TAYLOR SUMNER (2004)

“Cases may come before the ICJ, an independent subsidiary organ of the United Nations, by referral through a compromis (special agreement) between two or more states, by a treaty provision committing disputes arising under the treaty to the court, or by the parties’ statements of compulsory jurisdiction. Under Article 38 of the Statute of the International Court of Justice (Statute), when deciding cases “in accordance with international law,” the court applies the following sources of law:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Furthermore, if the parties agree, the court may decide a case under equity principles, ex aequo et bono.

Territorial claims before the ICJ usually fall within one of the above four categories.”

 

TERRITORIAL DISPUTES AT THE INTERNATIONAL COURT OF JUSTICE

Link to the complete article

 

What does all this mean in relation to Crimea? Several scholars have published their analysis related to the legal status of this TERITORIAL DISPUTES, its legality (or illegality) and consequences. A sample of these opinions follow below. In each case you may find the link to the complete article.

 

The Crimea Crisis. An International Law Perspective

by Christian Marxsen

“Which norms of international law has Russia after all violated during the Crimea Crisis? Russia used military force to take control of the peninsula and to force Ukrainian troops not to intervene in the process of secession. When exactly Russia intervened in Crimea remains contested. It might have already happened – as many press reports indicate – shortly after Yanukovych’s removal from office through the presence of troops that acted under control of Russia. In any case Russia has used the threat of force, clearly expressed in the Russian Council’s authorization to use military force on Ukrainian territory. After the referendum Russian troops took openly control of Crimea, seized Ukrainian military equipment, and forced Ukrainian troops to surrender. In doing so, Russia has violated Ukraine’s territorial integrity and this situation is perpetuated by the integration of Crimea into Russia’s territory. A justification for Russia’s acts is not given: international law did not allow Russia to intervene in order to rescue Russian citizens and it did neither allow an intervention in Crimea upon Yanukovych’s invitation.

Crimea has also not become an independent state with the capacity to invite Russian troops after the referendum and could therefore also not adopt an internationally binding treaty on the accession to Russia.

What is, consequently, the current status of Crimea under international law? Crimea has at no point become an independent state: it could not secede from Ukraine since the narrow legal requirements for a right to secession were not fulfilled. Thus, from the perspective of international law Crimea still belongs to Ukraine, whatever the de facto situation may look like.

As Crimea has not become a state, it could consequently not enter into any treaty relations with Russia so that its accession to Russia is without legal effect under international law. This view has been expressed by the UN General Assembly: General Assembly Resolution A/RES/68/262 of 27.3.2014 has called upon states not to recognize any alteration to the status of the Autonomous Republic of Crimea and the city of Sevastopol and herewith refers to the concept of obligatory non-recognition. The doctrine of obligatory non-recognition provides that states “are under an obligation not to recognize, through individual or collective acts, the purported statehood of an effective territorial entity created in violation of one or more fundamental norms of international law”. This rationale underlies the Stimson Doctrine that was used as a justification for states not to recognize the annexation of the Baltic states by the Soviet Union. This rationale is also expressed in the International Law Commission’s Article 41 of the Draft Articles on State Responsibility. The obligation is a norm of customary international law and aims at preventing that a violation of international law becomes validated by means of recognition. It contains a “minimum resistance” and “a continuous challenge to a legal wrong”. The obligation arises where a territorial entity has been created in violation of an erga omnes norm, especially by violating the prohibition of the use of force, by violating the right to self-determination, or by violating the prohibition of systematic racial discrimination. The process in which Crimea was integrated into Russia relied on the use of force by Russian troops and therefore gives rise to an obligation not to recognize Crimea’s accession to Russia. Resolution A/RES/68/262 of 27.3.2014 was adopted with 100 votes, 58 abstentions, and 11 No-votes. Only a small number of states has recognized Crimea’s accession to Russia while the majority of states opposes Crimea’s integration into Russia. Nevertheless, even if more international sanctions were imposed on Russia, a reintegration of Crimea into Ukraine is currently more than unlikely. It seems after all that the minimum resistance of non-recognition might determine the relations between Russia and almost the rest of the world for a not so minimal period of time.”

 

The Crimea Crisis. An International Law Perspective

Link to the complete article

 

Budapest Memorandum

An important document that has to be mentioned is the Budapest Memorandum signed on 5^th December 1994 the signatories promise to:

• Respect the independence and sovereignty and the existing borders of Ukraine in accordance with the principles of the Helsinki Final Act (1975);

• Refrain from threats or the use of force against the territorial integrity or political independence of Ukraine, except in self-defence or otherwise in accordance with the United Nations Charter;

• Refrain from the use of economic coercion to subordinate Ukraine to their own interests;

• Seek immediate action from the United Nations Security Council to provide assistance to Ukraine if it becomes a victim of an act of aggression or the object of a threat of aggression in which nuclear weapons are used;

• Not to use nuclear weapons against Ukraine, except in self-defence;

• To consult with one another if questions arise regarding these commitments.

 

It is important to note the legal value of the memorandum is arguable. For an analysis see

LEGAL ELEMENT OF RUSSIA’S HYBRID WARFARE by René Värk

Link to the complete article

 

For a view about human rights and the situation in Crimea see

Human Rights in Crimea Militarization Context

“The occupation of part of Ukrainian territory — the Autonomous Republic of Crimea and Sevastopol City — and further actions of the Russian Federation in Crimea constitute a gross violation of the international law standards, are not consistent with the UN objectives, and defy the fundamental principle of the UN member states: a commitment to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other

manner inconsistent with the Purposes of the United Nations. The RF aggression against Ukraine has resulted into global violations of the fundamental human rights, military crimes and crimes against humanity in Crimea.”

 

Link to the complete article

Link to the complete article

 

NOTE: This post is based on Jorge Emilio Núñez, “Territorial Disputes and State Sovereignty: International Law and Politics,” London and New York: Routledge, Taylor and Francis Group, 2020 (forthcoming)

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, “Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue,” London and New York: Routledge, Taylor and Francis Group, 2017.

 

NEXT POST: Crimea and colorable claims based on moral standing

 

Thursday 27th February 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Crimea (Part 8) [Post 73]

Crimea: same facts but different accounts

In discussing the dispute over Crimea, yesterday we introduced the first ground for a colorable claim: HISTORICAL ENTITLEMENT. Before going into any negotiations about the sovereignty over Crimea, we have to decide who has the right to claim. For more references about the colorable claim see our previous post.

 

To demonstrate the importance of factual evidence (the basis for the historical claim) and the way in which this “same” evidence is interpreted differently, we are going to review today two very different “perceptions” of these facts concerning the same TERRITORIAL DISPUTE: Crimea. Both these “perceptions” come from academic “rigorous” analysis.

 

Same facts but two different accounts

Account ONE of the facts concerning Crimea

“The Crimean peninsula officially became part of the Russian Empire in 1783 on the orders of the Catherine the Great (1762-1796), when the Russian imperial army finally defeated dwindling forces of the Crimean Khanate – a state that was nominally under control of the Ottoman Empire. Since then, Crimea’s sea ports became the home of the Russian Black Sea fleet and the peninsula was immediately regarded as the strategically important outpost of Russian Navy. The peninsula was also the site of 1853 Crimean War in which the Russian Empire fought against Britain, France and the Ottoman Empire. The author of the famous War and Peace, Leo Tolstoy, also fought in the Crimean War and later published several accounts of his experience in the battles. A world-renowned Russian novelist Anton Chekhov, author of The Three Sisters and The Cherry Orchard, also lived and composed his brilliant books and plays in Crimea. Chekhov’s house became “a magnet for other Russian writers of his day - Ivan Bunin, Maksim Gorky, Alexander Kuprin - and for musicians such as Sergei Rachmaninov and the great singer Fyodor Chaliapin.”5 Furthermore, Sevastopol, the chief port of the Russian Black Sea Navy, entered into the Russian imagination as the legendary “City of Heroes” after withstanding the German Nazi army’s relentless siege and the city’s heroic defense by the Soviet soldiers during the World War II. In short, the site of Russia’s Christian origins and identity, the land of Russian military glories and tragedies, a hub of cultural rejuvenation - Crimea has a special place in the Russian heart and enigmatic soul.

Crimea, or the Crimean Autonomous Republic, became part of Ukraine in the second half of the twentieth century. The jurisdiction and authority over the territory was transferred to the Ukrainian Soviet Socialist Republic in 1954 at the initiative of Nikita Khrushchev who was then serving as the First Secretary of the Communist Party of the Soviet Union. At that time, it was an insignificant event as even a thought of the Soviet Union’s eventual implosion was unthinkable. Khrushchev, who was himself a Ukrainian, never explained his decision to attach the peninsula to Ukraine’s territory; neither did the official memoranda of the communist Party. Today, many theories exist of why Khrushchev considered it necessary to transfer control over Crimea to Ukraine.”

Annexation of Crimea:

Link to the complete article

 

Account TWO of the facts concerning Crimea

“In actual fact, the Crimean peninsula, for most of its history, had nothing to do with Russia. Since antiquity, Crimea’s mountainous southeastern shores have been dominated by Tauri, Greek, Roman, Byzantine, Venetian, and Genoese principalities, before they were conquered by the Ottoman Empire in 1475. The vast inland steppes of Crimea were ruled and populated by Scythians, Greeks, Goths, Huns, Bulgars, Khazars, Mongols, and Karaites, and eventually, from 1441, formed the heartland of the Crimean Tatar Khanate, a tributary of the Ottoman Empire. The Ottomans and the Tatars continued to rule over their respective parts of the peninsula until 1783.

Throughout the premodern era, Crimea’s only substantial historical connection to either Russia or Ukraine was the fact that the inland section of the peninsula was controlled by the Kievan Rus’ –the precursor state of both modern Ukraine and Russia – from the mid10th to the early 13th century. At the onset of Kievan rule (which did not extend to the mountainous southeastern parts of the peninsula that contained its most important settlements and ports and remained under Byzantine control), the Crimean city of Chersonesos, now a part of Sevastopol, was the site where the leader of the Rus’, Vladimir I. of Kiev, converted to Christianity. This was a seminal event in the development of the Eastern Orthodox churches (both in Russia and in Ukraine), since Vladimir then oversaw the conversion of the entire Kievan Rus’ to the Orthodox faith. Notwithstanding the symbolic importance of this event, which was duly invoked by Vladimir Putin in his annexation speech on 18 March, the period of rule by the Kievan Rus’ did not leave a deep cultural or political imprint on Crimea. In the centuries following the demise of the Rus’ in the 1200s, the peninsula was the site of sporadic Cossack raids, but it remained firmly in Tatar and Ottoman hands.

Throughout its history, Crimea has thus been a crucible of cultures. It was not until 1783 that it became Russian territory, following Catherine the Great’s victory over the Ottomans and her conquest of the Tatar Khanate, and it remained Russian for the next 170 years.

In 1954, the Soviet leadership transferred Crimea from the RSFSR to the Ukrainian Soviet Socialist Republic (UkrSSR). In spite of frequent claims that the Soviet leader Nikita Khrushchev, bypassing all legal norms, singlehandedly assigned the peninsula to Ukraine, the transfer was in fact carried out legally and in accordance with the 1936 Soviet Constitution (which, admittedly, was in essence a legal fiction).[…]

For the next six decades, Crimea was formally a part of Ukraine. Its ties to Kiev always remained somewhat loose, but much the same can be said about its ties to Russia throughout the preceding seventeen decades when it had been a part of the Russian Empire and the RSFSR. Throughout most of these 170 years, while it was politically controlled by Russia, Crimea had remained culturally distinct, and its cultural connection with Russia was relatively tenuous. In spite of substantial Russian colonisation efforts throughout the 19th century, around 1900 the Tatars still formed the largest ethnic group on the peninsula. The demographic pre-eminence of ethnic Russians in Crimea was only firmly solidified following the mass deportation of the entire Crimean Tatar population, as well as the smaller populations of ethnic Armenians, Bulgars, and Greeks, at Joseph Stalin’s behest in 1944. This de facto ethnic cleansing of the peninsula’s native inhabitants led to the death of between 20 and 50 percent of the Crimean Tatar community; the remainder were only able to return to Crimea in the 1990s.

Crimea has long occupied a special place in the Russian national consciousness, but this should not obscure the fact that, while its historical and cultural connection to Ukraine has been weak, its historical and cultural connection to Russia has scarcely been any stronger. Even a cursory glance at its history reveals that the recurrent proclamations of various Russian officials regarding Crimea’s “primordial” historical and cultural importance for Russia range from vast exaggeration to downright fantasy. Given that the Kremlin has invoked such claims in the attempt to justify a grave violation of international law and intrusion upon another sovereign state, it is important to spotlight how little they correspond to historical reality.”

The Legitimacy of Russia’s Actions in Ukraine

Link to the complete article

 

NOTE: This post is based on Jorge Emilio Núñez, “Territorial Disputes and State Sovereignty: International Law and Politics,” London and New York: Routledge, Taylor and Francis Group, 2020 (forthcoming)

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, “Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue,” London and New York: Routledge, Taylor and Francis Group, 2017.

 

NEXT POST: Crimea and colorable claims based on law

 

Wednesday 26th February 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world