Analysis: Why Russia's Crimea move fails legal test
- 7 March 2014
- From the section Europe
The Russian parliament says Crimea can become Russian territory if that is what the region's people decide they want in a referendum set for 16 March.
Here Marc Weller, Professor of International Law at the University of Cambridge, examines the legal issues raised by Russia's intervention in Crimea. The territory became part of Soviet Ukraine in 1954 and remained Ukrainian after the Soviet collapse in 1991.
Russia has clearly and unambiguously recognised Ukraine and its present borders. This was confirmed in:
- The Alma Ata Declaration of December 1991, which consigned the Soviet Union to history,
- The Budapest memorandum of 1994, offering security guarantees to Ukraine in exchange for removing nuclear weapons from its territory
- The 1997 agreement on the stationing of the Black Sea fleet in Crimean ports.
The 1997 agreement, extended for an additional 25 years in 2010, authorises the presence of Russian ships in Crimean harbours, along with the presence of a large military infrastructure, including training grounds, artillery ranges and other installations. However, major movements of Russian forces require consultation with the Ukrainian authorities and the agreed force levels cannot be increased unilaterally.
Contrary to these obligations, Russia has augmented its forces in Crimea without the consent the Ukraine. It has deployed them outside of the agreed bases, taking control over key installations, such as airports, and encircling Ukrainian units.
Russia's actions have created space for the pro-Russian local authorities in Crimea to displace the lawful public authorities of Ukraine. Legally, this clearly amounts to a significant act of intervention - indeed, as Russian military units are involved, it is a case of armed intervention.
Does the mere presence of a foreign armed force without the consent of the local sovereign also violate the international prohibition of the use of force, if no shot is fired?
According to a UN definition of 1974, the use of foreign armed forces on the territory of a state in contravention of the agreement governing that presence amounts to aggression. Still, under present conditions an "armed attack", which is the trigger point in the UN Charter for the application of the right to self-defence, has probably not yet occurred.
Initially, President Vladimir Putin obtained authority from Russia's upper house of parliament to use force to protect ethnic Russians in Crimea. He subsequently indicated that the use of force for humanitarian purposes or in defence of Russian assets had not yet occurred. It might become necessary in the future.
For now, Russia claims - unpersuasively - that its regular forces are not involved in the present stand-off, and that it does not control the local militias supposedly responsible for it.
Moscow's claim to be able to protect its minorities abroad lacks substance. It would be the duty of Ukraine, in the first instance, to protect all of its citizens from the purported threats.
When Hungary sought to strengthen its ties with ethnic Hungarian minorities living in neighbouring states, this was strongly resisted by the Council of Europe and other legal bodies.
Russia went even further in Abkhazia and South Ossetia, where pro-Moscow separatists opposed Georgian rule. Russia simply handed out passports to ethnic Russians, and later purported to rescue its own citizens from Georgian aggression. This ploy represents a misuse of the doctrine of "rescue of nationals abroad".
That rescue doctrine does not cover foreigners declared nationals principally for the purpose of rescuing them forcibly. Moreover, it would only facilitate moving them back to their purported homeland - Russia. It would not justify occupation of parts of a neighbouring state.
Moscow cannot rely on the doctrine of humanitarian intervention, either. Under that doctrine, a state may intervene exceptionally in circumstances of grave humanitarian emergency in order to save an entire population whose very survival is threatened. There is no evidence of such a situation at present.
Were such a situation to arise, it would be the result of the intervention that has already taken place. Moreover, a state intervening for genuine humanitarian purposes would not be entitled to cause a change in the status of the territory concerned.
Russian Foreign Minister Sergei Lavrov also waved a letter in front of the UN Security Council, claiming that the ousted Ukrainian President Viktor Yanukovych had requested an armed intervention.
However, once Mr Yanukovych had lost effective control over events in the country, he could no longer authorise intervention. Russia's argument that he was unlawfully deposed is not persuasive in this context. While he was not removed through the lengthy process of impeachment, provided for in the Ukrainian constitution, he was nevertheless unanimously disowned by parliament. He could no longer claim to represent the true sovereign of Ukraine, the people.
Similarly, the new Crimean regional authority, whose request for intervention was also invoked by Russia, lacks the legal power to take such a step.
Rather than using further aggressive force, Russia may now seek to tempt the Ukrainian authorities to make the first move. It would then assert the right to defend its troops and ethnic kin. So the Ukrainian authorities are well advised to exercise extreme caution.
As the fate of South Ossetia and Abkhazia demonstrated in 2008, any attempt to solve the issue militarily may well end in Ukraine losing Crimea permanently.
'Divorce at gunpoint'
The autonomous Crimean territory may indeed be legally entitled to argue for a change in its status. However, according to international precedent, it cannot simply secede unilaterally, even if that wish is supported by the local population in a referendum.
Instead, it would need to engage in genuine discussion about a possible separation with the central authorities in Kiev. Alternatives, such as enhanced autonomy, would need to be explored.
International practice generally seeks to accommodate separatist demands within the existing territorial boundaries.
Moreover, international law does not recognise a divorce at gunpoint. Crimea cannot proceed with a possible secession or even incorporation into Russia while Moscow holds sway on the ground.
In this way the situation differs from Nato's armed action in Kosovo in 1999. The Kosovo Albanians were exposed to extreme repression and subsequently forced expulsion by Serb forces.
Nato intervened for genuine humanitarian purposes. It did not occupy the territory in consequence of its humanitarian intervention. Instead, the UN administered Kosovo for some eight years, creating a neutral environment in which its future could be addressed. Kosovo did eventually gain independence, based on the settlement proposed by UN mediator Martti Ahtisaari.
Of course, incorporation into Russia cannot happen unless the Kremlin agrees to it. Moscow may be content with the new status quo, which would add Crimea to the list of "frozen" conflicts in Eastern Europe. That way, Moscow would avoid being accused of more direct aggression.
For two decades, Russia has supported Trans-Dniester, which has virtually separated from Moldova, and Nagorno-Karabakh, which declared independence from Azerbaijan following an intervention by Armenia.
To address this threat, the West will need to offer a package of measures that would enable the Kremlin to release its grip on Crimea without losing face.
The idea of an agreed settlement will seem odious to some. After all, Moscow should not be rewarded for its heavy-handed action. And the historical record is not good.
The EU-sponsored peace plan for Abkhazia and South Ossetia, negotiated by former French President Nicolas Sarkozy in August 2008, amounted to little more than ratification of the results of Russia's invasion of the two Georgian provinces. Both entities declared independence and have remained under Moscow's tutelage since.
However, it is that very example which makes it imperative to achieve a genuine settlement. Unless an agreed formula for the withdrawal of Russian forces to their bases in Crimea is found, the Ukrainian government will find it very difficult to regain sovereign control over the territory.
Agreeing a settlement
Kiev also needs the co-operation of Russia to maintain stability in other parts of eastern and southern Ukraine. If Moscow stokes the flames of anti-Ukrainian sentiments throughout eastern Ukraine, civil war is on the cards.
A Kiev-Moscow settlement would include:
- An agreed mechanism to prevent incidents between the opposing forces in Crimea, and to control radical groups on both sides, involving the Organization for Security and Co-operation in Europe (OSCE);
- A commitment by Ukraine to continue applying the agreement on stationing of the Black Sea Fleet in Sevastopol, matched by a Russian resumption of compliance, including withdrawal of extra troops and return to barracks;
- A guarantee by Ukraine that it will not touch the existing language rights for Russian-speakers - instead, a commitment to enhance and entrench the rights of all minorities in Ukraine;
- A joint Russia-Ukraine commission to protect the Russian Orthodox heritage in Ukraine;
- An agreement to apply some key elements of the transition deal that was agreed on 21 February, the day before former President Yanukovych fled Ukraine. Kiev would reconsider the wisdom of offering places in the interim government to ultra-nationalists. Instead, the interim government would be fully inclusive;
- A review of the constitution, in line with the transition deal, to address the overwhelming presidential powers and consider boosting the autonomous status of Crimea and granting more self-rule to parts of eastern Ukraine;
- Effective guarantees for holding free and fair early elections, offering equal chances to all parties and communities.
Most of these steps would not be major concessions on the part of the Ukrainian government. Instead, they represent the standard measures adopted in the wake of ethnic conflict or even civil war.
It may be the only way for the Kiev authorities to save their country.
Marc Weller is Professor in the Department of Politics and International Studies at the University of Cambridge and has been an adviser in a large number of international peace negotiations.