By Rebecca Lowe
The referendum held by the people of Crimea on March 16 may have seen the local population vote to join Russia, but it provides no justification for the annexation of the province under international law, according to leading experts.
‘Under Article 2 of the UN Charter the forceful acquisition of territory is illegal. This is clearly what happened in relation to Crimea. It doesn’t matter what the result of the so-called referendum was, or what the will of the Crimean people may have been. Russia used force against the territorial integrity of Ukraine. That cannot be retrospectively legitimised,’ says Robert Volterra, an expert in public international law at London-based Volterra Fietta.
Pro-Russian protests in Donetsk, Ukraine
Crimea had been part of the Soviet Union, first as part of the Russian Soviet Federative Socialist Republic (RSFSR), until it was ceded to the then Ukrainian Soviet Socialist Republic (USSR) in 1954. With the collapse of the Soviet Union, the 1991 Alma Ata Declaration affirmed Crimea as part of independent Ukraine.
‘All of this was an internal matter and apparently done according to the prevailing Soviet law, so there is no question of illegality at an international level. On multiple levels, Russia has now transgressed international law and its only pretext for annexing Crimea is based on the recognition of a referendum which has no legitimacy in international law,’ adds Volterra.
Following the collapse of the Soviet Union, Ukraine’s borders were further guaranteed by the 1994 Budapest Memorandum, signed by Russia, in exchange for giving up its nuclear arsenal. In 2010, Russia also negotiated with the Ukraine Government a renewal of a 1997 agreement enabling Russia to retain a military presence and its Black Sea Fleet base in Crimea.
‘On multiple levels, Russia has now transgressed international law and its only pretext for annexing Crimea is based on the recognition of a referendum which has no legitimacy in international law’
Expert in public international law, Volterra Fietta, London
‘The moment Russian troops began moving in force out of their bases contrary to their 1997 Treaty with Ukraine they were committing an act of aggression under international law and under the UN definition of aggression,’ agrees Malcolm Shaw QC, Senior Fellow at the Lauterpacht Centre for International Law, Cambridge University.
The IBA has condemned Russia’s incursion into Ukraine as a violation of the UN Charter and called for an independent international investigation into the matter. IBA Executive Director Mark Ellis said, ‘Ukraine is a sovereign state; Russia, as a UN Member State, is bound by the UN Charter’s prohibition on the use of force against it. The prohibition against force has only three exceptions: when authorised by the UN Security Council under Chapter VII; when there is consent from the territorial state; and when it is in self-defence. The first two exceptions do not apply in this case, as the Security Council has not issued a Chapter VII resolution authorising Russia to use force, and Ukraine has not consented to Russia’s military intervention. The third exception of self-defence applies only in response to an armed attack. Ukraine has not perpetrated an armed attack upon Russia and accordingly Russia cannot employ the self-defence exception.’
Shaw adds: ‘Crimea was part of Ukraine when Russian troops took to the streets, under international law it remains a part of Ukraine. It is not credible for President Putin to claim that the region’s ethnic Russians were facing an imminent and overwhelming danger, or that the former Ukraine President Viktor Yanukovych requested Russian intervention at the appropriate time – by the time of his appeal, it appears, he [Yanukovych] had deserted his office, left the country and the Ukrainian Parliament had already sworn in a new interim Government and President.’
In addition, experts argue, the Crimean Parliament simply did not have the authority to unilaterally decide its own destiny. Under the Ukraine Constitution it is possible for a region to seek self-determination, but only through a national referendum.
Ukraine may have clear rights under international law, but asserting them is another matter. Its Government has filed a claim at the European Court of Human Rights in Strasbourg, but the options beyond this are limited, lawyers agree. Russia does not recognise the jurisdiction of the International Court of Justice, while its position as a Permanent Member of the UN Security Council means little chance of formal UN sanctions given its possession of the veto.
Many therefore question what next steps Ukraine, the West or Russia may take. The EU and US have introduced financial sanctions targeting key Russian individuals, but there is no hint of military intervention. The Russian leadership will likely therefore absorb the short-term pain of the sanctions for the long-term gain of the country, believe others.
‘It is unlikely that Russia will extend further into Ukraine unless Ukraine becomes radicalised and divided, which could happen if the economy collapses,’ says Neil Williamson, a director at Emerging Law, who has strong links to the region.
‘This is partly why Ukraine needs urgent and significant financial assistance,' Williamson continues. 'Donors will want to know that the new government is tackling corruption so that funding will be properly applied. The protests in Ukraine were mainly about people saying "no" to corruption and self-serving politicians.’
With the IMF announcing it had agreed a $14-18bn stand-by deal with Ukraine at the time of going to press, early signs looked promising for a closer economic relationship between Ukraine and the West.
Stefanie Ortmann, lecturer in international relations at the University of Sussex and an expert on Russian foreign policy, says: ‘Russia is seeking to regain its “great power” status, but The Kremlin has not enlarged its territory by either annexation or merging with another former Soviet Union state since 1991 – even though a merger was the declared aim of Belarussian President Lukashenko, and several union treaties with Belarus exist, and in spite of the fact that a referendum in South Ossetia in 1992 declared a 90 per cent majority for joining Russia. All of this makes the annexation of Crimea more puzzling. If anything it also firms up Ukraine’s borders, which may prove significant should it seek EU or even NATO membership.’
There is no doubt about Crimea’s strategic military importance, but economically it presents more challenges to Russia than it solves, add lawyers in Ukraine. ‘Crimea has always been a difficult place to do business and a drain economically on the rest of Ukraine. Without significant Russian investment in infrastructure the ultimate losers in all this may actually be the Crimean people,’ says Timur Bondaryev, Managing Partner of national Ukraine firm, Arzinger.
Scott Appleton is a freelance journalist and can be contacted on Scott@954consulting.com