The spread of violence and political instability in Ukraine over the past several months, and the consequent political transformation in the country, test many fundamental and emerging norms of international law. First, various secession forces in Crimea espouse the doctrine of self-determination as legal rationale for secessionist rhetoric. Second, Russia’s likely indirect support of what appear to be private military contractors in Crimea raise novel issues of state responsibility. Third, given Russia’s sincerely professed concern over the growth of ultra-nationalist right-wing militias and the rise of anti-Semitist rhetoric amidst the ranks of current provisional government forces, the case is beginning to be made in favor of humanitarian intervention, akin to NATO’s defense of Kosovo. Fourth, the overlapping maze of bilateral and multilateral treaty commitments tying Ukraine and Russia presents a tragic case study of the interplay of remedial mechanisms under international law. This post attempts to map some main themes in the ongoing rhetorical battle regarding just who is “violating international law” in Ukraine, as well as the limitations of international legal process more generally.
1.0 Intervention & Right to Self-Determination
While recently there has been much discussion on the intervention-by-invitation argument in Crimea, focusing on the Crimean governor’s purported invitation to Russian troops, the Crimean invitation must be viewed in light of the more broadly-worded letter of invitation sent by then-president Yanukovich. In that letter, Yanukovich called on the President of Russia, to use “armed forces of the Russian Federation to establish legitimacy, peace, law and order, stability and defending the people of Ukraine [because of persecution in Ukraine “for language and political reasons”]. Grigory Vaypan at Moscow’s Institute of Law and Public Policy, a non-profit organization, has recently written an excellent note on Russia’s likely arguments for intervention-by-invitation. According to Vaypan, the argument for secession is weak irrespective of whether “one sticks to the traditional theory of effective control or to the novel theory of popular sovereignty” because, given the split in effective control over Ukraine by one government, neither the de facto government nor the aspiring breakaway province can invite foreign troops.
After analyzing the ‘remedial secession’ principles of In re Secession of Quebec (1998), Gaiane Nuridzhanian concludes that Crimea will not be able to state a case for unilateral secession. According to Nuridzhanian, there has not “been any oppression, domination or large-scale and continuing breach of rights in respect of the Crimean population.” As an empirical matter, this is not quite true. There have been fatalities in clashes in Crimea, and reports point to rapid militarization among virulent hate groups within Ukraine. These groups are varied, with agendas ranging from the wholesale expulsion of religious and ethnic groups from Ukraine, to specific calls for extermination of “skinny-eyed” (Armenian, or Caucasian, or Muslim?) bandits in Crimea coming from the main stage of Maidan. The point that Nuridzhanian and other commentators seem to be making is that the oppression in Crimea is not systematic or of a sufficiently large magnitude to constitute denial of meaningful access to government to pursue socio-economic or political development. This view is echoed in the words of the Ukrainian Association of International Law:
We would like to stress that no duly authorized national, foreign or international institution has declared any violation of human rights on the territory of Ukraine, or specifically in the Autonomous Republic of Crimea, which would have required the intervention of any subject of international law or the international community. Thus, the appeal by the self-proclaimed heads of one of the administrative units of Ukraine – the Autonomous Republic of Crimea to the Russian Government requesting military help is unlawful, and any decisions taken based upon it are void. (emphasis added).
While as a matter of fact the issue of persecution is both well documented (and simultaneously disputed), a more troubling theoretical point from the standpoint of a self-determination claim is that it’s altogether unclear who is asserting the right to self-determination—whether ethnic Russians residing in Crimea or southeast Ukraine, Crimean people as a whole (who are not a ‘nation’ or unitary ethnic body), or ethnic Crimean Tatars, as discussed below. This seems to be a dispositive fact distinguishing the Crimean self-determination argument from the self-determination claim in Kosovo, which Moscow has consistently invoked as both procedural and theoretical justification for intervention.
Still further, Owen Schaefer argues that international law imposes minimal procedural safeguards for stating a self-determination claim. In Schaefer’s view, the purpose of the procedural minima is to ensure public debate free of military coercion. Schaefer delicate argument acknowledges that neither the current transitional government nor the Crimean government has technically comported with procedural minima. However, in Schaefer’s view, because the government in Kiev was ushered in by “everyday Ukrainians,” it is more legitimate than the government of Crimea, which appears to have been coerced militarily. As Schafer concludes, “it is fair to say that popular uprisings are substantially more procedurally legitimate than military coups.” The problem with this view, of course, is that Russia has consistently denied the legitimacy of the post-Yanukovich government precisely because it is not a duly-elected government. Russia has consistently maintained that Maidan was a Western-backed coup and as such was the result of forceful coercion. In Russia’s view, it was the illegitimate coup in Kiev that unleashed waves of nationalist rhetoric and violence. And because of the provisional government’s inability to regain effective control over the population, Russia asserts it a right to respond within Ukraine to protect its legitimate interests.
2.0 Rights of Russian Minorities, R2P
The responsibility-to-protect (R2P) concept has not been advanced by Russia explicitly in this crisis, although its diplomatic rhetoric focuses on humanitarian purposes, the protection of Russian citizens and ‘compatriots,’ and protection of the ‘most fundamental of human rights.’ In its basic form, R2P is an exception to the general prohibition on unilateral intervention in UN Charter. It allows one state to invade another where it’s necessary to protect populations. Building on the doctrine of humanitarian intervention, and seeking to curb many of its excesses, R2P developed as a more technical and collaborative process for making the costly and consequential decision to intervene. As Anne Orford eloquently explains in her 2013 James Crawford Lecture on International Law, R2P represented a radical shift in the way that fundamental bases of state authority are understood. Whereas traditional understanding of state authority since 1945 focused on balance between facts constituting effective control (i.e., so critical to a territorial integrity claim) and rights representing centrifugal forces (say, self-determination), the evolution of R2P in the early 2000s seemed to preference facts over rights. By shifting the focus on factual capacity or willingness to protect the rights of national minorities, R2P seems to deflate what Orford calls “romantic or nationalist” rights-based arguments to self-determination. In this new paradigm, authority is grounded on the factual capacity to protect and to govern.
The basic query under R2P seems to be this: which claimant to authority can effectively offer protection to the people? In the case of Crimea, the answer is not clear. On the one hand, the physical, psychological and martial threats from opposition forces are real and growing. Unlike the 2008 invasion of Georgia, where senior Russian officials maintained that their actions were justified on the basis of responsibility to protect Russian nationals in South Ossetia and Abkhazia, Russia can make a number of compelling and good faith R2P arguments in Ukraine, among them:
- Need to protect Jewish minorities throughout Ukraine, who are suffering persecution;
- Need to protect Russian-speaking minorities;
- Need to protect Crimean Tatars from Ukrainian Right Front fundamentalists;
- Need to prevent mass-scale violence;
- Response to request for aid from democratically-elected president;
- Response to request for aid from regional governor in strategic area with majority Russian-speaking population;
The Russian case for intervention is stronger than in 2008 Georgia given the well-documented and escalating waves of ethnic violence throughout Ukraine. Moreover, given the rapid deterioration of the security apparatus within Ukraine, Russia is justifiably concerned about further escalation and Ukraine’s inability to provide protection from ultra-nationalist armed mobs. The threat of ethnic persecution, displacement, and possible genocide cannot be dismissed. In Rwanda, hostilities escalated to genocide within mere weeks, with previously peaceful local administrators, like Akayesu, turning to incitement of genocide in a stunningly short time frame. As a multiethnic state in its own right, Russia (with a significant Ukrainian minority) is perhaps best equipped among the international community of states to assess the actual threat to peace or security within Ukraine. Russia’s assessments regarding the nature of threats to peace and security in Ukraine and the region cannot and should not be dismissed out-of-hand as mere rhetorical justifications for Realpolitik, state-building, or neo-imperial aggression.
Russian international lawyers have keenly followed the evolution of the R2P concept. A roundtable discussion on the R2P concept was convened at the 2012 annual meeting of the Russian Association of International Law in Moscow. Restatating the three ‘pillars’ of R2P, Patricia O’Brien, Under-Secretary-General for Legal Affairs, stressed in Moscow that the critical question now is to enable the international community to affirmatively act to protect populations before a conflict like Rwanda or Srebrenica. In the same vein, based on the lessons of Libya, Syria, and other internal conflicts, O’Brien emphasized a corollary responsibility while protecting (RwP), which along with R2P’s third pillar of collective action, would require the Security Council to take into account “considerations of last resort, proportionality and balance of consequences.” Second, the Council would establish a “monitoring and review mechanism” with respect to the implementation of the use of force under these criteria. As Orford and O’Brien point out, for R2P to develop into a workable framework for timely response to international crises, states must develop procedural safeguards both within and outside the UN framework. Given that a number of interested parties in the conflict hold veto power at the UN Security Council (UNSC), the current crisis may accelerate efforts to reform the peacekeeping functions of the UNSC as well as renew efforts to strengthen parallel institutional frameworks for maintaining international peace and security. At present, the likelihood of meaningful structural reform at the UNSC is slim, but desperate times may be calling for radical changes.
As Anne Orford concedes, the evolution of R2P and its emphasis on effective, timely and decisive collective action is a radical proposition in part because it can lead to unfavorable political compromises (and still lead to unpredictable outcomes). Action in a timely and decisive manner, which Russia seems to be pursuing unilaterally and through the Security Council, will most likely be seen as illegitimate and ineffective by the West, notwithstanding the fact that Russian presence and influence is probably one of the more effective guarantees of peace and security in Ukraine in the near term. Russia will most likely be able to demonstrate that Ukraine is unable, unwilling or incapable of protecting the Russian-speaking minority, and hence that responsibility falls to the broader community of states. For now, Western policymakers should similarly embrace the logic of R2P to prevent further escalation of conflict through bilateral and multilateral peacemaking and reconciliation efforts, both through the UN and OSCE. Considering the magnitude of long-term consequences and political fallout from failure to reach international consensus on Kosovo, Syria, Libya, and now Ukraine, there may be a sense of greater urgency and willingness among the international community for meaningful reform.
3.0 Territorial Integrity & Treaty Obligations
A number of multilateral agreements, including the Helsinki Final Act and Budapest Memorandum guarantee Ukraine’s territorial integrity. The Helsinki Final Act 1975 prohibits intermeddling in the internal affairs of OSCE states. The Budapest Memorandum sets out the obligations of signatories in return for Ukraine giving up its nuclear weapons. Under its terms, the three parties (US, UK, RF) commit to refrain from the threat or use of force against Ukraine’s territorial integrity in exchange for Ukraine’s voluntary surrender of nuclear weapons to Russia.
Doctrinal writings differ on what constitutes the internal competence of states for purposes of the Helsinki Final Act. Soviet doctrine correlated the scope of the “internal competence” of states to the level of development of their international relations. Under the Soviet ‘concordance of wills’ theory of norm formation, bindingness of international norms is assured by coordination of overlapping state interests and positions. Thus, in the Soviet conception of internal/foreign authority, individual states develop their own scope of foreign versus internal competence. The policy behind the theory, of course, was Cold War antagonism and the stalemate codified in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States. The Declaration ensured that a state’s right to choose its political, economic, social or cultural system was a sphere of strictly internal competence.
Post-Soviet theorists, both Western and Russian, have argued that the Cold War distinction between internal and foreign affairs is untenable. In the words of one leading Russian international lawyer, S.V. Chernichenko, the existence of foreign and internal matters not falling within a state’s internal competence is simply absurd. Consequently, in determining whether a given issue falls within a state’s internal competence or policy prerogative, contemporary Russian doctrine focuses on the role of the state’s government vis-à-vis the international community. Russian arguments for renunciation of the Budapest Memorandum, Helsinki Final Act, or bilateral/multilateral friendship, commerce, navigation treaties with Ukraine seem to openly rest on this conception of ‘internal competence to govern.’ The argument was articulated by Putin as such: because Ukraine does not have a legitimate government, Russia is not constrained by international agreements in its relations with the new provisional—and in the eyes of Moscow, illegitimate—government. The argument has a rich pedigree in the history of Soviet and Russian approaches to international law, hearkening back to early Bolshevik attempts to repudiate Tsarist sovereign debt obligations, and the promotion of the doctrine of socialist international legality. The argument also finds resonance in the USSR’s reservations to Article 45(b) of the VCLT, which provides that a state “may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts […] it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.” Following the Soviet/Russian argument to its logical conclusion, a military coup or radical change in government can provide a basis for fundamental change of circumstances (rebus sic stantibus) triggering reexamination of existing treaty obligations. Nonetheless, as I have explained with respect to Russia’s force majeure claim vis-à-vis New START, to meet this standard, a state invoking a fundamental change of circumstances must meet a high threshold akin to the impossibility standard under Article 61 of the Vienna Convention on the Law of Treaties.
Three further points deserve mention. First, under Gabčíkovo-Nagymaros Project (Hungary/Slovakia), a fundamental change in political structure of government cannot serve as a valid basis for suspending or terminating treaty performance under necessity, impossibility, or fundamental change of circumstances if the underlying performance is unrelated to the political transformation in the state. The ICJ noted that even the dissolution of Czechoslovakia did not affect Hungary’s performance obligations, given that Slovakia became a state successor to the underlying infrastructure development treaty. Similarly, the unexpected political transformation in Ukraine (similar in its underlying logic to the democratization efforts in Czechoslovakia) should not serve as a basis for suspending performance under bilateral or multilateral treaties.
Second, under VCLT, Article 62(2):
A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
- if the treaty establishes a boundary; or
- if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty (emphasis added).
Given that the core object and purpose of the Budapest Memorandum was to secure Ukraine’s territorial integrity, treaty law militates against Russia’s vague change of circumstances argument with respect to the Helsinki Final Act, Budapest Memorandum, treaty of friendship, commerce and navigation, and multilateral regional cooperation treaties (CIS, etc.). Lastly, even if Russia is unlikely to prevail on this argument either before an international tribunal or in interpretative debates, it is important to take note of Russian doctrine on grounds for termination or suspension of treaties, given that Russia is likely to use these arguments in negotiation strategies. Similarly, it is important to take note of Soviet theories of treaty formation and grounds for non-performance given the lasting legacy of these doctrines not just in Russia and the post-Soviet space, but in other socialist and post-socialist states.
4.0 Crimean Tatar Indigenous/Secession Claim
As seen above, the issue of Crimean secession must be contextualized in a broader argument about Russia’s claimed right to protect national minorities throughout Ukraine, not merely in Crimea. As of March 11, 2014, the Russian Duma is readying a legislative act on accession to Russia. The act establishes procedures for accession, and provides that if it is impossible to conclude a treaty due to the illegitimacy of a foreign government (and concomitant failure by that government to protect the rights of national minorities), then accession rights may be granted to territories based on the results of secession referenda.
A less discussed theme over the past weeks has been the status of Crimean Tatars, and whether their rights to self-determination need to be specially protected under international law. Over the past several weeks, Crimean Tatars have held protest meetings. As a result of clashes between pro-Russian and Crimean Tatar protesters, at least two people have died. Crimean Tatars represent less than 15% of the population. Consequently, any pro-Russian referendum vote would logically mean disenfranchisement of Crimean Tatars given that they cannot command a majority, and reports regarding the phrasing of the referendum question seem to foreclose the possibility of true Crimean self-determination. Furthermore, there are no signs that civil society in Crimea can offer formal or informal exit polling, information that would be invaluable in gauging the political inclinations of Crimean Tatars. In fact, press reports suggest that the accelerated referendum schedule and heightened security precautions may serve to create a coercive climate. This, in turn, is likely to cast the Crimean referendum as illegitimate in the eyes of many Ukrainians and outside observers, not only on the issue of Russian-majority secession (which seems likely) but on the related and equally important issue of Crimean Tatar self-determination. Obviously, and this goes without saying, but the same argument regarding the legitimacy of the Crimean secession referendum can be raised by the ethnic Ukrainian minority within Ukraine. As affected minorities in the standoff between Russia and Ukraine, Crimean Tatars cannot express their preference in this referendum as a matter of both fact and law. This presents a looming threat of future legal/political/military challenges to Russian rule in the Crimea.
Update (March 12, 2014): The Secretary General of the Council of Europe asked the Venice Commission to prepare two urgent opinions: on the compatibility with constitutional principles of the decision of the Supreme Council of the Autonomous Republic of Crimea in Ukraine to hold a referendum on becoming a constituent territory of the Russian Federation or restoring Crimea’s constitution of 1992, and on the compatibility with international law of the draft Federal Constitutional Law of the Russian Federation on “Amending the Federal Constitutional Law on the procedure of admission to the Russian Federation and creation of a new subject of the Russian Federation in its composition”. Both opinions will be discussed by the Venice Commission at its forthcoming Plenary Session on March 21-22, 2014.
5.0 Effect of Lack of International Recognition Following Crimea’s Secession Vote
Just as Russia opposed NATO’s actions in Kosovo, and threatened to withhold recognition, the international community has largely condemned Russia’s intervention efforts in Abkhazia and South Ossetia, withholding recognition for both aspiring states. Crimea’s secession is likely to meet a similar fate. This may be one reason why, as discussed above, the Russian Duma has taken affirmative steps to establish a legal procedure for incorporating Crimea immediately after a likely referendum in favor of secession. If Crimea attains the status of a federal subject of the Russian Federation, as the legislation provides, third states would not need to ratify the accession, allowing instead for continuity in diplomatic relations and de facto recognition of Russia’s enlargement. Conversely, the secession and contemporaneous accession may give rise to diplomatic reprisals against Russia.
The rhetoric of international legality on all sides of the Ukrainian crisis calls for several observations. First, it allows us to observe firsthand, and yet again, the indeterminate nature of international legal argument and the persistent relationship between politics and international law. Second, and related to the first, it shows the relative ineffectiveness of international legal argumentation as a foreign policy tool. If anything, the tactical deployment of international legal arguments as contemporary form of lawfare may actually serve to further undermine the coherence and bindingness of the international legal order. Third, analysis of each of the purported violations of international law discussed above is complicated by orders of magnitude by allegations of the presence and influence of private contractors within Ukraine—whether the point of reference is Kremlin’s allegation that Maidan protesters were supported by Western-backed civil society organizations, or the more opaque nature of the Russian-speaking military force in Crimea (bearing no insignia, and disclaiming official military links to the Russian Federation). As evidenced by the controversy over Blackwater in Iraq and the uncertain status of private military contractors under international law, this point deserves heightened scrutiny given the precedential effect it is likely to carry. Fourth, the evolution of arguments—from early reports of human rights abuses in Maidan, to arguments against EU intervention, to arguments for/against Russian intervention—illustrates the interplay between complex and deeply interconnected remedial mechanisms under international law. In one of the latest developments, for instance, Ukraine filed a note of protest against Russia on March 11, 2014 over the presence of three Russian naval and marine assault vessels in Ukrainian territorial waters. Tracing the causal chain of manifold international law violations to establish an original unlawful act, a single point of origin, may not only be impossible as a matter of fact, but may actually be counterproductive to long-term peacebuilding efforts.