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
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 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.”
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
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