Today’s post introduces the second ground for a
colourable claim: law.
A colourable 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
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
Budapest Memorandum
An important document that has to be mentioned is
the Budapest Memorandum signed on 5th 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
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.”
Tomorrow, more details about the colourable claim based on law. The post will cover in particular the often misunderstood relationship between self-determination, territorial integrity and State sovereignty.
NOTE: based on Chapter 6, Núñez, Jorge Emilio. 2017. Sovereignty
Conflicts and International Law and Politics: A Distributive Justice Issue.
London and New York: Routledge, Taylor and Francis Group.
Jorge
Emilio Núñez
07th
June 2018
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